Buckeye Floral Co.

National Labor Relations Board - Board Decisions

May 25, 1972

197 N.L.R.B. 100 (N.L.R.B. 1972)

100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Buckeye Floral Company and International Brother-
hood of Pottery and Allied Workers,
AFL-CIO-CLC. Cases 8-CA-6389 and
8-CA-6397
May 25, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On February 14, 1972, Trial Examiner Jerry B.
Stone issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.1
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that Buckeye Floral Company, East Liverpool, Ohio,
its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's recom-
mended Order.
I The Trial Examiner found that a bargaining order is warranted herein
because Respondent violated Sec 8(a)(5) of the Act by refusing to bargain
with the Union and by engaging in the following violations of Sec 8(a)(I) of
the Act which undermined the Union's majority status ' (1) coercive
interrogation, (2) statements as to the futility of representation by the
Union, (3) threats not to deal with the Union, (4) threats to close down its
business, (5) threats of reprisal against employees because of their union
activity, and (6) promises of benefit In concluding that a bargaining order
is justified, we also rely on Respondent's conduct in discharging employee
William J Barron in violation of Sec 8(a)(3) of the Act See N LR B v
Gissel Packing Co, Inc, 395 U S 575 In that connection, we note that in his
April 1, 1971, conversations with employee Mellinger reported by the Trial
Examiner, Vice President Bosco not only called Barron a "troublemaker"
but added he "would like to get rid of" Barron
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Trial Examiner: This proceeding, under
I The facts are based on the pleadings and admissions therein
2 The facts are based on the pleadings and admissions therein
Section 10(b) of the National Labor Relations Act, as
amended, was tried pursuant to due notice on October 4
and 5, 1971.
The charge in Case 8-CA-6389 was filed on April 23,
1971. The charge in Case 8-CA-6397 was filed on April 28,
1971. The Order Consolidating Cases, Consolidated
Complaint and Notice of Hearing in Cases 8-CA-6389
and 8-CA-6397 was issued on June 23, 1971. The issues in
this case essentially concern whether (1) Respondent has
engaged in acts of illegal interrogation of employees as to
union activities or desires, promise of benefits to employees
to dissuade union activity, and threats of reprisals to
employees to dissuade union activity, and thus thereby has
violated Section 8(a)(1) of the Act; (2) Respondent has
discriminatorily terminated three employees because of
Respondent's belief of their union or concerted activities,
and thereby has violated Section 8(a)(3) and (1) of the Act;
and (3) Respondent has refused to bargain with the Union,
and thereby has violated Section 8(a)(5) and (1) of the Act.
All parties were afforded full opportunity to participate
in the proceeding, and the General Counsel and Respon-
dent filed briefs which have been considered.
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER'
Buckeye Floral Company, Respondent, is now, and has
been at all times material herein, a corporation duly
organized and existing by virtue of the laws of the State of
Ohio. Further, at all times material herein, Respondent has
maintained its principal office and place of business in
East Liverpool, Ohio, where it is engaged in the processing,
sale, and shipping of flowers. Annually, in the course and
conduct of its business, Respondent ships goods valued in
excess of $50,000 from its place of business in East
Liverpool, Ohio, directly to points outside the State of
Ohio.
Based upon the foregoing, and as conceded by the
Respondent, the Respondent is now, and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED2
International Brotherhood of Pottery and Allied Work-
ers, AFL-CIO-CLC, is now, and has been at all times
'material herein , a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues3
At all times material herein, the following named persons
3 The facts are based on the pleadings and the admissions therein
197 NLRB No. 21
BUCKEYE FLORAL COMPANY
have occupied positions following their respective names,
and have been, and are now, agents of Respondent, acting
on its behalf, and are supervisors within the meaning of
Section 2(11) of the Act: Frank Bosco, secretary, and
Thomas A. Hess, president and manager.
B. The Unfair Practices
The relevant facts concerning the issues in this case may
be set forth as follows:
1. Sometime, apparently around the last of February or
the first week in March 1971, employee William J. Barron
considered that his pay did not properly represent the
hours he had worked, that he was due pay for 3 more hours
in one paycheck. He discussed the matter with Vice
President Bosco but was not able to persuade Bosco that
he was entitled to the additional pay.
Around the first week in March 1971, the Respondent
had noticed or' heard that Barron had been talking to
fellow employees in huddles. On or about March 8, 1971,
Vice President Bosco called Barron into his office.
President Hess was in the office with Vice President Bosco.
Bosco told Barron in effect that he didn't like the
atmosphere, his talking to employees in little huddles and
discussing things. Bosco asked if the problem was about
the 3 hours of pay. Barron told Bosco that he was unhappy
about not getting paid for the 3 hours. Bosco told Barron
that there was bound to be more to the problem than that.
Barron told Bosco that he had heard that President Hess
wanted to get rid of him, that he had heard this through
Bosco's secretary. Bosco and Hess denied this and stated
that they wouldn't discuss it. Bosco told Barron that if he
didn't like working there, he could walk out the door, that
they didn't need him, and that they did not want trouble,
that it was a small business. Bosco asked Barron if he was
happy. Barron. then replied that he was. Thereupon, Bosco
told Barron that he could go back to work.4
2. On March 11, 1971, employee Mellinger went -to the
Union and secured union authorization cards for distribu-
tion to employees. On March 12 and 13, 1971, Mellinger
and Celia Brown engaged in soliciting employees to sign
union cards. Employees Mellinger, Lewis Browne, Barron,
English, Celia Brown, and Steven Hill signed union cards
on March 12, 1971. Employee Beatty received a card on
March 12, 1971, but signed a union card on Saturday,
March 13, 1971. All of the cards were returned to employee
George Mellinger who transmitted them to the Union on
March 13, 1971.5
3. On March 15, 1971, Vice President Bosco sent word
to employee Celia Brown to come to his office. Brown had
previously been advised by Mellinger, in connection with
the union activity, to have a witness with her if she were
called into the office. Brown sought out Barron to
4 The facts set forth are based on Barron's credited testimony and the
logical consistency of all of the facts Barron placed this event as occurring
after he signed his union card (on March 12, 1971), and about a week later
he participated in a conversation between Bosco, Hess, and Celia Brown
Barron's testimony, however, did not reveal that he had a reliable and
accurate recall of dates Brown's testimony was very convincing that the
conversation between her and Bosco and Hess, where Barron was present,
occurred on March 15, 1971 Considering all of this and the logical
consistency of the facts , I find the timing thereof as indicated This conduct
is not alleged as being violative and no finding thereto is made
101
accompany her as a witness. Brown and Barron thereupon
met with Vice President Bosco and President Hess in
Bosco's office. What occurred is revealed by the following
credited excerpts of Brown's and Barron's testimony.6
Excerpts From Brown 's Testimony
A. So we went over and Mr . Bosco and Tom was
seated on my left and Mr. Bosco on the right at his
desk . He wanted to know if I had anything to say to
him.
I said , "No, why?"
He said that Tom has said I was causing a
disturbance among the employees talking about work-
ing conditions and that one of the truck drivers had
went over and told him I was bad-mouthing him. I told
him-I asked what I was supposed to be doing . He said
that I had the employees in fear of losing their jobs.
I looked around at Mr . Hess and asked him, "Who,
for instance?"
He said, "Mr. Gluckner, for one."
I had never talked to Mr . Gluckner about his job in
no way or shape or form . So, as long as I done my
hours and pay, that was all that mattered, and I was to
keep my mouth shut and keep out of it . He didn't want
me to discuss it with anyone . He didn't want me to talk
to any of the employees . He didn't like the atmosphere
and we weren 't supposed to carry on conversations. He
said that most places you work in , that they don't carry
conversations on among the employees.
Excerpts From Barron's Testimony
And it finally got around to where Frank Bosco
asked Celia what it was she said about Frank Bosco's
father, and Celia says she never said anything about it
and Tom Hess said he had three witnesses that heard
her make a statement against Bosco . And she denied it
and Frank Bosco was kind of at the point he didn't
know who to believe, but he wanted to believe Tom
Hess. When Celia denied it, then Tom Hess more or
less jumped up and pointed his finger and was shaking
it at her and calling her a liar . So then Celia Brown
started to cry and we waited a couple of minutes until
she was done crying and they asked her a few more
questions. And Tom Hess accused her again. Well, she
just couldn't take it any more. She started crying and
got up and left.
As I was sitting there, Frank Bosco looked at me and
said, "You are keeping your nose straight, aren't you?"
I said, "Yes, I haven't done anything."
He said, "That will be it, then."
So I got up and left and went back to Buckeye.
S The facts are based upon a composite of the credited aspects of the
testimony of Mellinger, Celia Brown, English , and Barron
6 The facts are not in real dispute . I find Brown 's testimonial version of
events more reliable than Barron 's where in conflict and so credit the facts.
The testimony of all witnesses (Barron , Bosco, and Hess) to the extent
inconsistent with the facts set forth is discredited . Part of Barron 's testimony
so discredited is discredited because I am persuaded it is an interpretation
of the facts by him and not what was actually stated by the individuals
involved
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is contended by the General Counsel that Respondent
engaged in unlawful interrogation of Brown on March 15,
1971. Considering the credited facts, I find that this
allegation is not sustained.
4. On March 31, 1971, the Union transmitted a letter to
Respondent wherein the Union advised the Respondent
that it represented a majority of its employees, requested
arrangements for contract negotiation, and indicated that
if any doubt existed as to majority status of the Union, the
Union would agree to a card check by a disinterested and
impartial third party mutually satisfactory to the Company
and the Union.
5.7 The Respondent received the Union's letter of March
31, 1971, on April 1, 1971. Thereafter, Vice President
Frank Bosco telephoned George Mellinger and had
Mellinger to come to his office at 8 that night. What
occurred in Bosco's office is revealed by the following
credited excerpts of Mellinger's testimony.
A. When I arrived, Frank was very upset and he
asked me about the letter and I told him.
Q. What letter are you talking about?
A. The letter that he had received from the union
and I told him-he said, "I will shut the place down if
you go ahead with this union, see?"
And later on, he said, "I don't need the place. My
Dad left me $30,000 a year. Me and my brother and
mother are well off."
Again he said, "I won't be bothered with grievance
committees or unions."
He just went on and on. He told me that-he said I
was the spokesman for this, and I told him I wasn't. I
said they all signed a card. Nobody was supposed to.
He insisted I was the spokesman, again, of course, so he
told me that he just wouldn't be bothered with a union
at all.
He said, "I will shut it down."
He said he had talked to Steve Hill and he told him
if we went ahead with this he would close the plant. He
also talked to Walter Beatty and Gary Frederick. He
said we didn't have a chance for a union. They
wouldn't go along with it. He said if I notified
McElhaney of this union that he would take care of me
under the table.
Q. All right. What did he say, if you notified
McElhaney of what, sir?
A. If I notified McElhaney to stop the union
because we didn't have enough. He said he would take
care of me under the table. He said, "I will fix it where
you get paid vacations and I will take care of you under
the table and I will start talking to you about insurance
plans"
He informed me time and time again that we did not
have enough people to get the union. He said he would
shut the plant down if they went ahead with this.
7 The facts are based on Mellinger's credited testimony Bosco's
testimonial version of events differed from that of Mellinger Bosco's
testimony was to the effect that during the week prior to receipt of the union
letter he had received telephone calls from Mellinger's customers about a
"work stoppage" and a reluctance to give orders for "Easter" week I do not
doubt the Respondent was concerned with the receipt of the Union's March
31 letter about a possible work stoppage during the Easter week I am
s
A. I told him we were protected by Federal Law.
He agreed. He told me, too, if we were to come and ask
him these things, he would have discussed it.
I said, "If we would have come to you and asked you
these things, we might have got fired."
He also agreed to that and said we might have. He
also said Steve Hill was a burden to him and he also
went on to say that Bill Barron was a trouble maker.
Q. During this conversation, did you name any
names to him?
A. Oh, I named all the names to him.
Q. What was the question and what was your
answer?
A. He wanted to know who signed the cards and I
told him who signed the cards. He didn't know that-I
assumed that he didn't know that Beatty had signed the
cards because I told Beatty-
Q. Was it signed? You tell us what you and he said
to each other on this occasion.
A. He said, "Who signed the cards?" And I went
on to tell him who signed the cards.
Q. Would you give us the names of the men you
said who signed the cards to Mr. Bosco?
A. Yes, I told him, Eddie, Lewis Brown, Celia
Brown, Bill Barron, Steve Hill, and Walter Beatty, and
he, of course-well-
Q. Did you name yourself as having signed a card?
A. Yes, I told him I signed a card.
: : * s s
Q. Did he do anything while you were naming
these names?
A. He had a list and he was marking them off. He
said when he asked Walter Beatty about it that Walter
Beatty said no, that he didn't sign a card, which I told
Walter Beatty not to do.
A., He kept going back and forth about that he
wouldn't be bothered with the union. He will shut the
place down on us. He said, "You will be without a job,"
and he kept harping on this about this. He was quite
upset with me.
Conclusion as to Above
Considering the above event occurring on April 1, 1971,
it is found and concluded that Respondent, by Vice
President Frank Bosco, (1) interrogated Mellinger about his
and others' union activities and desires in a manner
constituting interference, restraint, and coercion in viola-
tion of Section 8(a)(1) of the Act, (2) threatened reprisals
against employees because of their union activity, and (3)
persuaded, however, that Respondent had not received telephone calls from
customers as indicated Considering Respondent' s actions otherwise as
directed toward Barron and Brown, I am persuaded that if such calls had
been received, Respondent would have contacted Mellinger at an earlier
date I am persuaded that Mellinger's version of these events should be
credited I discredit Bosco's testimony inconsistent with the facts found
BUCKEYE FLORAL COMPANY
made promises of benefits to employees to dissuade union
activity. Such conduct is violative of Section 8(a)(1) of the
Act. It is so concluded and found.
6. After Mellinger's conversation with Vice President
Bosco, apparently that night or the next day, Mellinger
went to see Union Representative McElhaney, told
McElhaney that the employees were afraid about the
possibility of losing theirjobs and would rather notjoin the
Union. McElhaney told Mellinger that he would not force
the issue but that he could.
7. As the facts in this case reveal, President Hess, Vice
President Frank Bosco, and others are involved in the
management of Respondent's work. Vice President Frank
Bosco also is concerned with the management of another
company called Riverside Florist Co. It is noted in this
respect, that the General Counsel does not contend that
Respondent and Riverside constitute a single employer
within the meaning of the Act.
On occasion in the past, drivers from Respondent had
been assigned to drive trucks for Riverside Florist for trips
out of town. Apparently around March 29, 1971, Frank
Bosco talked to Mellinger about driving a truck for
Riverside Florist to Evansville, Indiana. On April 2, 1971,
there was a notation on Mellinger's Buckeye Floral
timecard indicating that the Evansville trip had been
canceled. Mellinger became upset about the cancellation of
the Evansville trip and spoke to both Frank and Robert
Bosco. Mellinger inquired as to whether his conversation
with Frank Bosco on April 1, 1971, had anything to do
with the cancellation of the trip. Both Frank and Robert
Bosco told him that it did not, that the "store" had
canceled its orders.
The Evansville trip had been scheduled for Mellinger to
leave in the evening of April 5, 1971. Apparently on April
2, 1971, Mellinger was assigned another trip for Riverside
Florist scheduled for departure on Sunday, April 4, at 11
p.m. The trip's designation was King of Prussia, Pennsylva-
nia. Mellinger made this trip for Riverside Florist.
Mellinger discovered later that the Evansville trip had
not been canceled and that Riverside Florist had hired
another driver for the job.
The General Counsel presented no evidence as to the
exact mileage or hours of driving involved in the Evansville
and the King of Prussia trips. Respondent presented
evidence to reveal that the King of Prussia trip involved 22
hours. Respondent presented testimony of a very general
and imprecise type (witnesses Frank Bosco and Thomas
Hess) to the effect that the Evansville trip would require
about 21 hours. Respondent, however, did not present any
evidence as to the actual hours that were involved in the
Evansville trip. Hess, however, credibly testified to the
effect that the scheduling of the Evansville trip for
Mellinger for departure on March 5 in the evening would
have resulted in Respondent's inability to use Mellinger
until Wednesday or thereafter. Hess also credibly testified
that the scheduling of the King of Prussia trip was of such
a nature that Mellinger was available for work at
8 English's testimony placed this call on Saturday , the week before
Easter Sunday (April 11, 1971) Considering the logical consistency of all of
the evidence , I fix the time as indicated Hess' testimony was substantially
similar except that he denied the threat to shut down , denied the
103
Respondent, after the trip, on Tuesday morning. In sum,
Hess credibly testified to the effect that Mellinger received
more total hours of employment by the scheduling as done
than if he had received the Evansville trip.
Respondent contends that the change in scheduling was
because Hess persuaded Frank Bosco that he needed
Mellinger for Respondent's work demands. I find it hard to
understand why the Boscos did not explain the reschedul-
ing on this basis to Mellinger, rather than telling him that
the store had canceled the Evansville order. Despite this, I
am persuaded that the overall facts do not reveal that there
has been actual harassment. Even assuming harassment, I
would not be persuaded, as indicated hereinafter, that such
harassment would be of the type to warrant a "construc-
tive" discharge of Mellinger on April 10, 1971.
8. On Saturday April 3, 1971, President Thomas Hess
attempted unsuccessfully to reach employee English by
telephone. Later that day English returned President Hess'
telephone call. What occurred is revealed by the following
credited excerpts of English's testimony.8
A. When I called Mr. Hess he said that he heard
that employees were going to go in a union and go out
on a strike. He said he thought Lewis Brown was going
out on a strike.
I told him, "No, none of the guys were going on a
strike."
He asked me how I felt. I told him I thought it was a
good thing to have a union and that I signed a union
card and that was the extent of our conversation.
A. He also said that if they did go on a strike that
they would shut the place down because they couldn't
afford to run it if they went out on strike.
Considering the foregoing, the facts reveal that Respon-
dent, by Hess, unlawfully interrogated an employee about
his union activities and desires in a coercive manner.
Respondent's apparent contention that its interest was
legitimate because of fear of economic loss over the Easter
business week does not justify inquiry as to how an
employee feels about the Union. Such inquiry as to the
employee's union desires exceeded the bounds of permissi-
ble conduct and is violative of Section 8(a)(1) of the Act. It
is so concluded and found.
Considering the foregoing, it is concluded and found that
Respondent did not threaten a shutdown in violation of
Section 8(a)(I) of the Act. The remarks about the
shutdown concerned the necessity of shutting down during
a strike. It did not connote reprisal against the employee's
work opportunities because of his participation in union
activities.
9. The Respondent normally posts a work schedule on
Thursday or Friday for the following week. The schedule is
simple, on notebook paper, and simply lists the names of
employees, and the dates and hours scheduled for work.
The Respondent decided to reduce its work force after
the Easter rush period and decided to economize by an
interrogation . and testified to the effect that he didn't remember exactly
what was said but that he had said in effect that they would have to figure
some way to take care of the work I find English's testimony more
complete , objective, and credit it over Hess's where in conflict
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attempt at more efficiency. Thus Respondent decided to
combine packing duties with truckdnvers' duties, and to
assign more hours to its truckdnvers accordingly. As a
result of the above decisions some of the part-time and
temporary employees were laid off, employee Barron's
worktime was reduced from 5 days to 3 days, and the
drivers (including Mellinger) were assigned more hours.
The April 10, 1971, work schedule for the first time included
a notation to the effect that due to reduced work that this
schedule was reduced and that reductions thereon were
according to seniority
Frank Bosco and Hess credibly testified to the effect that
reductions or layoffs in the past had been based upon
seniority considerations. There is no evidence to contradict
that in fact past layoffs were based upon seniority
considerations. The General Counsel's evidence mainly
shows a change in the wording on the work schedule. The
litigated issue is whether Respondent has unilaterally
instituted a new policy of seniority. The facts do not reveal
a change in policy of seniority. Accordingly, I conclude
and find that the evidence does not support the allegation
of a unilateral change in violation of Section 8(a)(1) or (5)
of the Act.
10. On April 10, 1971, George Mellinger noticed the
work schedule and the notation about seniority. Mellinger
heard Frank Bosco and Hess discussing that Hill was the
oldest employee. Mellinger considered that Hill had less
seniority than he did since Hill had not been working when
he first started to work in March 1970. The facts reveal that
Hill had been an employee of Respondent at some point of
time prior to March 1970, had left Respondent's employ-
ment, and had returned at a later date.
Later that day after having gone home, Mellinger
returned to Respondent's place of business, and spoke to
Vice President Frank Bosco. What occurred is revealed by
the following credited excerpts from Mellinger's testimo-
ny.9
A. I went home and started thinking about it and
was disgusted so I went back up and asked Frank if I
could talk to him in the office and his brother was
there, and I asked if one who was fired or quit could be
older than someone who was there longer than I was,
but he didn't say. He said he was the oldest.
And he couldn't have been. He wasn't even working
there when I started.
s
A. I told him if I had to work under these
conditions, that I quit. He said, "You will be sorry.
Work will be hard to get." So I just went ahead and
quit anyhow.
9 Frank Bosco in his testimony denied that Mellinger spoke to him about
the seniority list at the time Mellinger quit Bosco's testimony inconsistent
with the facts found is discredited, based upon a consideration of the logical
consistency of all the facts
19 1 credit Hess' testimony to such effect
11 Brown's testimony upon this event appeared confused and unreliable.
The facts are based primarily upon the credited testimony of Bosco and
Hess Brown's testimony is credited except where inconsistent with the facts
Alleged Constructive Discharge
The General Counsel contends that Mellinger's quit on
April 10, 1971, constitutes a constructive discharge.
Assuming the cancellation of the Evansville trip during the
preceding week and the notation of reference to seniority
on the April 10, 1971, work schedule, such facts do not
reveal the type of harassment designed to cause an
employee to quit. Accordingly, the evidence is insufficient
to establish that Respondent discriminatorily discharged
Mellinger on April 10, 1971.
11. Eddie James English was among the employees laid
off and not scheduled to work on the April 10, 1971, work
schedule. English did not work on April 10, 1971, and
learned of his layoff on April 12, 1971.
English was hired on or about February 28, 1971, to
work during a 6-week vacation period he had from another
company. Several weeks later, English's vacation period
from the other company was cut short. English made
arrangements with Hess to work an accommodated
schedule for Respondent. When Respondent laid off
employees on April 10, 1971, English was laid off because
the period of work for which he had been hired was at an
end and because of his low semority.io
Alleged Discriminatory Discharge of English
Considering all, of the facts, including the facts that
English had signed a union card on March 12, 1971, that
President Hess had unlawfully questioned English about
his union activity on April 3, 1971, and the fact that
English was hired for a 6-week period, I am persuaded and
conclude that the facts do not reveal that Respondent was
discriminatonly motivated in the layoff of English on April
10, 1971. It is so concluded and found.
12. On April 12, 1971, Celia Brown slipped on the floor
while working. President Hess observed this and asked if
she were hurt. Brown told Hess that she was not hurt. Later
Hess told Brown that Vice President Bosco wished to see
her. Brown went to Bosco's office. There Hess , Bosco, and
Brown discussed her pregnancy, whether she wished to quit
work, a waiver of liability by her, and decided that she
would continue working for the Mother's Day business
period.ii
13. On April 10, 1971, employee Barron asked Presi-
dent Hess about the reduction in his hours of employment
as indicated on the just posted work schedule. Hess
indicated that the notation on the schedule was self-
explanatory, that if he had any questions, to see Frank
Bosco.
After Mellinger quit his job on April 10, 1971, Hess
spoke to Vice President Bosco about being short a driver.
Bosco suggested that Hess give Mellinger's old job to
Barron. Thereafter, Hess telephoned Barron and offered
Barron the. job that Mellinger had formerly had. Barron
found Brown testified to the effect that she was interrogated as to whether
she had signed a union card and who had made her sign a union card.
Brown also testified about a threat to shut the place down. Considering the
confused nature of Brown's testimony , the fact that Respondent had
ascertained on April 1, 1971, that Brown had signed a union card, I am not
persuaded from the logical consistency of all the facts that the alleged
interrogation or threat occurred. I discredit testimony to such effect
BUCKEYE FLORAL COMPANY
told Hess that he didn't want the job, that he would rather
leave things just as they were.
14. On April 24, 1971, Respondent terminated the
employment of Barron by deleting his name from the
weekly work schedule. Barron spoke to President Hess who
told him that he had nothing to do with making the
schedule, that Vice President Frank Bosco had made the
schedule , that if he had any questions about the schedule,
to see Bosco.
On April 26, 1971, Barron spoke to Vice President Bosco
about the schedule. Vice President Bosco told Barron that
he was laid off and would never work there again.
The Discriminatory Discharge of Barron
The General Counsel contends that Respondent discrim-
inatorily discharged Barron on April 24, 1971. The
Respondent denies that it discriminatorily discharged
Barron and asserts that the layoff was for economic
reasons.
Considering all of the facts in this case , I find that the
preponderance of the facts reveals that Respondent
discriminatorily discharged Barron on April 24, 1971.
Respondent 's position in this case is that it does not have
"pure" job classifications , that employees are drivers and
packers, excepting perhaps for Celia Brown and Mrs. Hess.
Barron had worked as a packer and as a driver . Barron
performed such mixed duties until April 10. After April 10,
1971, Barron was used only as a packer until his
termination on April 24, 1971.
On April 10, 1971, the real change that Respondent
instituted was to add more hours of packing to the work of
the drivers. Although Barron had worked as a driver and a
packer, his hours were cut back to packing hours only.
Despite the fact that Respondent found it necessary to
allude to "reduced work," and to "seniority" on the April
10, 1971, list, it did not inform employees orally or in
writing of the real change it was making.
As to Respondent 's economic defense, it may be stated
as follows. It appears reasonable that after the "Easter"
rush Respondent would have an economic basis for a
cutback in employment needs. It made such cutback and
eliminated some essentially part -time and temporary
employees . Except for oral testimony , there is no evidence
to reveal that the economic problems of the Respondent
were more severe after Easter than they had been before
the increase in business because of Easter . Barron had
been one of the employees working a full and substantial
week for a long time preceding the Easter rush . Absent an
unusual situation , it would not appear that economic
reasons would have dictated the necessity for his layoff as
of April 24, 1971.
Respondent contends that it was attempting to become
more efficient by assigning more packing hours after
Easter to drivers. Testimony of Respondent's witnesses
Bosco and Hess was to the effect that for a long time it had
been attentive to its labor costs and that it decided it could
be more efficient by assigning more packing work to its
drivers.
Respondent 's business operations are dissimilar to many
businesses. Thus Respondent operates the type of business
that ebbs and flows with holiday and similar type
105
demands. Its past operations reveal a reliance upon several
employees as a basic crew , utilization of fluctuation of
scheduling of hours, and utilization of employees who
work a variety of accommodated schedules . It would
appear that the nature of the business would necessitate the
future use of employees with fluctuation of scheduling of
hours.
The facts reveal that Respondent became aware of
employee talk about employment conditions in March
1971, was dissatisfied with Celia Brown 's part in such
employee discussion , warned Barron in effect to keep out
of such activity , learned of Barron 's union adherence on
April 1, 1971, and engaged in strong statements and action
to dissuade union activity in Bosco's remarks on April 1,
1971, to Mellinger.
Although Respondent offered Mellinger's job to Barron
on April 10, 1971, it should be noted that Respondent
revealed itself in an overall manner to be concerned about
the immediate necessity to have a truckdriver to take
Mellinger's place . I find it hard to believe that when
Respondent determined the necessity of eliminating an
employee on April 24 , 1971, it was not aware that it had
not spelled out its means of achieving efficiency by
increased use of a packer-driver operation to employees
and -Barron. Its failure to be candid with employee Barron
on this point casts doubt upon an economic motivation for
his layoff . Most persuasive as to an improper motivation,
considered in context of all of the facts , is the fact that
Respondent told Barron that he would never be returned
to work . While there might have existed an economic
motivation for the layoff of one man , I find it hard to
believe that with the nature of Respondent 's operations it
would so advise an employee unless there were other
reasons dictating the motivation for his termination. I find
no merit in and don 't believe Hess ' testimony to the effect
that Barron was selected for layoff because he didn't
believe that Barron would be interested in Bell's job
(Mellinger's replacement) if Barron knew the alternative
was no job.
In sum, I find that the evidence preponderates for a
finding that Respondent discriminatorily discharged Bar-
ron on April 24, 1971 , because of his union activities and
beliefs. Such conduct is violative of Section 8(a)(1) and (3)
of the Act. It is so concluded and found.
The Refusal To Bargain
15. The parties stipulated to the effect that the
appropriate bargaining unit of employees of Respondent
involved in this proceeding may be described as "all
employees, excluding office clerical employees , guards and
supervisors as defined in the Act."
The parties are in agreement that during the material
time involved in this proceeding Mellinger , Barron , Beatty,
Brown , Hill, and Chapman are employees properly
belonging in the aforesaid unit. The Respondent raises a
question as to the status of employees Browne, English,
Frederick, and Wilson. The facts reveal that English was
hired as a temporary employee to work for approximately
6 weeks . Accordingly, I find that English , as a temporary
employee, should be excluded from the bargaining unit.
The facts reveal that Browne , Frederick , and Wilson all
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regularly worked on accommodated schedules as part-time
employees. I find it proper to include Browne, Frederick,
and Wilson as employees in the bargaining unit.
The Respondent contends that Gluckner is an employee
properly considered in the unit. The General Counsel
contends that Gluckner should be excluded from the
bargaining unit on the basis that he does not share the
same community of interest of other employees.
Gluckner's duties are principally that of a salesman; he
does some packing, and he does some driving of a truck.
The facts reveal that he is paid on a commission basis as
contrasted to other employees' hourly wages. Other
employees have been offered this commission basis of
wages and have turned the same down. Gluckner, when
hired, brought with him certain customers and has
continued to service such customers. Considering the
overall facts of accommodated schedules of employees, I
find that Gluckner has a sufficient community of interest
with other employees in the bargaining unit to belong in
the unit. I find that Gluckner belongs in the bargaining
unit.
The Respondent contends that Dorothy Hess, Tom
Hess, Jr., and Paul Pettit belong in the bargaining unit. The
General Counsel contends that Dorothy Hess should be
excluded because of family relationship and supervisory
status, that Tom Hess, Jr., should be excluded because he
was a temporary employee and because of the family
relationship, and that Pettit should be excluded from the
bargaining unit because he was a temporary employee.
The facts reveal that Dorothy Hess is clothed with
supervisory authority. Thus President Hess has told
employees to obey her because of her na-ne. In effect, her
supervisory authority was granted at least in part because
of family relationship. Dorothy Hess has authority to
recommend hiring, and the facts reveal that her recommen-
dations have been acted upon without other investigation.
I find it clear that Dorothy Hess should be excluded from
the bargaining unit as a supervisor.
Tom Hess, Jr., is President Hess' son. Young Hess and
Pettit are college students who in recent years have worked
during holiday periods such as Easter and Christmas. It is
noted that during the summer of 1970, when out of school,
young Hess and Pettit did not work for Respondent.12 I
find young Hess and Pettit to be temporary employees and
properly excluded from the bargaining unit.
In sum, the bargaining unit employees, at the time
material herein, were Mellinger, Barron, Beatty, Brown,
Hill, Chapman, Browne, Frederick, Wilson, and Gluckner.
A number of the above employees had signed union
authorization cards by March 13, 1971. Such employees
were Mellinger, Browne, Barron, Beatty, Brown, and Hill.
In sum, the Union had authorization for representation
from 6 employees out of a bargaining unit complement of
10 employees. Thus the Union represented a majority of
Respondent's employees on March 13, 1971.
It is undisputed and clear that the Union made a
demand for recognition and bargaining upon the Respon-
12 Brown credibly testified to the effect that Tom Hess, Jr, and Pettit did
not work for Respondent during the summer of 1970 President Hess's
testimony was to a contrary effect The parties stipulated to the effect that
Hess' testimony was inaccurate as to placing such work in 1970 instead of
1969
dent concerning the employees in the appropriate bargain-
ing unit on March 31, 1971. It is clear that the Respondent
has at all times after April 1, 1971, and thereafter refused
to recognize and to bargain with the Union as to such
employees.
Applying the principle of Joy Silk Mills, Inc., 85 NLRB
1263, and N.L R.B. v. Gissel Packing Company, Inc., 395
U.S. 575, it is clear that Respondent had the obligation to
bargain with the Union on April 1, 1971, and has refused
to bargain with the Union in violation of Section 8(a)(5)
and (1) of the Act. Thus, after receipt of the Union's letter
of demand for recognition and bargaining, Respondent, by
Vice President Bosco, engaged in interrogation of Melling-
er as to identity of all union adherents, listed such union
adherents, threatened to shut down operations, and
threatened futility of belonging to the Union. This course
of conduct occurred in a context where Bosco recognized
that Mellinger would convey to the Union the results of
such interrogation and threats-and that the same would
cause cessation of adherence to the Union by employees.
Thus Respondent undermined and destroyed the Union
immediately after receipt of demand for recognition and
bargaining by the Union.
In sum, the facts are clear that Respondent has refused
to bargain with the Union in violation of Section 8(a)(5)
and (1) of the Act since April 1, 1971. It is clear that under
the principles of Gissel a bargaining order is now
warranted. It is so concluded and found.i3
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
It having been found that the Respondent discharged
William J. Barron on April 24, 1971, in violation of Section
8(a)(3) and (1) of the Act, the recommended Order will
provide that Respondent offer him reinstatement to his
job, and make him whole for loss of earnings within the
meaning and in accord with the Board's decision in F. W
Woolworth Company, 90 NLRB 289; Isis Plumbing &
Heating Co., 138 NLRB 716, except as specifically mod-
ified by the wording of such recommended Order.
Having found that the Respondent has refused to
bargain collectively with the Union, it will be recommend-
13 I find it unnecessary to allude to Vice President Bosco's conversation
with Union Representative Galvin after the charges of alleged discriminato-
ry discharges had been filed , alluding to a possible adjustment of
recognition if the charges were withdrawn
BUCKEYE FLORAL COMPANY 107
ed that the Respondent, upon request, bargain with the
Union as the exclusive representative of its employees in
the appropriate unit.
Because of the character and scope of the unfair labor
practices herein found, the recommended Order will
provide that the Respondent cease and desist from in any
other manner interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed by
Section 7 of the Act.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Buckeye Floral Company, the Respondent, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Brotherhood of Pottery and Allied
Workers, AFL-CIO-CLC, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By discharging William J. Barron, the Respondent
has discouraged union membership by discrimination in
regard to tenure of employment, thereby engaging in
unfair labor practices in violation of Section 8(a)(3) and (1)
of the Act.
4. All Respondent's employees, excluding office cleri-
cal employees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act.
5. At all times on and after March 13, 1971, the Union
has been the exclusive representative of all the employees
in said unit for the purpose of collective bargaining with
respect to rates of pay, wages, hours of employment, and
other conditions of employment.
6. By refusing to bargain with the Union on and after
April 1, 1971, Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(5) and Section
2(6) and (7) of the Act.
7. By the foregoing and by interfering with, restraining,
and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act, Respondent engaged in
unfair labor practices proscribed by Section 8(a)(1).
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 14
Respondent, Buckeye Floral Company, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union membership, activities, and sympathies.
(b) Threatening employees with shutdown of operations,
14 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
futility in selection of a union , that it will not bargain with
a union , or other reprisals in order to dissuade such
employees from union activities.
(c) Discharging or otherwise discriminating against
employees in regard to hire or tenure of employment or
any term or condition of employment , in order to
encourage or discourage membership in any labor organi-
zation , except to the extent that such rights may be affected
by lawful agreements in accord with Section 8(a)(3) of the
Act.
(d) Refusing to bargain collectively with the Union as the
exclusive representative of the employees in the unit herein
found to be appropriate.
(e) In any other manner interfering with , restraining, or
coercing Respondent's employees in the exercise of their
rights guaranteed in Section 7 of the Act except to the
extent that such rights may be affected by lawful
agreements in accord with Section 8(a)(3) of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Upon request bargain with International Brother-
hood of Pottery and Allied Workers, AFL-CIO-CLC, as
the exclusive representative of Respondent 's employees in
the unit herein found appropriate and embody any
understanding reached in a signed agreement . The appro-
priate bargaining unit is all Buckeye Floral Company
employees , excluding office clerical employees, guards, and
supervisors as defined in the Ar t.
(b) Offer to William J. La*ron immediate and full
reinstatement to his former position or, if such position no
longer exists , to a substantially equivalent position, without
prejudice to his seniority or other rights pieviously
enjoyed , and make him whole for any loss of pay suffered
by reason of the discrimination against him in the manner
described above in the section entitled "The Remedy."
(c) Notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of his right to full reinstatement , upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(d) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records , timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(e) Post at Respondent 's store and offices at East
Liverpool, Ohio, copies of the attached notice marked
"Appendix." 15 Copies of said notice , on forms provided by
the Regional Director for Region 8, after being duly signed
by Respondent' s representative , shall be posted by it
immediately upon receipt thereof , and be maintained by
Respondent for 60 consecutive days thereafter , in conspic-
uous places, including all places where notices to employ-
ees are customarily posted . Reasonable steps shall be taken
is In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted pursuant
to a Judgment of the United Sates Court of Appeals enforcing an Order of
the National Labor Relations Board "
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.16
16 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 8, in writing , within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate our employees
as to their or other employees' union membership,
activities, or desires.
WE WILL NOT threaten our employees with shutdown
of operations, futility in selection of a union, that we
will not bargain with a union,,or other reprisals in order
to dissuade such employees from union activities.
WE WILL NOT discharge or otherwise discriminate
against employees in regard to hire or tenure of
employment or any term or condition of employment,
in order to encourage or discourage membership in any
labor organization, except to the extent that such rights
may be affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
WE WILL NOT refuse to bargain with International
Brotherhood of Pottery and Allied Workers,
AFL-CIO-CLC, as the exclusive representative of
employees in the bargaining unit.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed in Section 7 of the Act except to the
extent that such rights may be affected by lawful
agreements in accordance with Section 8(a)(3) of the
Act.
WE WILL bargain collectively, upon request, with
International Brotherhood of Pottery and Allied
Workers, AFL-CIO-CLC, as the exclusive representa-
tive of Respondent's employees in the bargaining unit
described below with respect to rates of pay, wages,
hours of employment, and other conditions of employ-
ment, and, if an understanding is reached, embody
such understanding in a signed contract. The bargain-
ing unit is:
All Buckeye Floral Company employees exclud-
ing office clerical employees, guards, and supervi-
sors as defined in the Act.
WE WILL offer to William J. Barron immediate and
full reinstatement to his former position or, if such
position no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other
rights previously enjoyed, and make him whole for any
loss of pay suffered by reason of the discrimination
against him.
All employees are free to become or remain, or refrain
from becoming or remaining, members of International
Brotherhood of Pottery and Allied Workers,
AFL-CIO-CLC, labor organization, except to, the extent
provided by Section 8(a)(3) of the Act.
Dated By
BUCKEYE FLORAL COMPANY
(Employer)
(Representative) (Title)
We will notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 1695
Federal Office Building, 1240 East Ninth Street, Cleveland,
Ohio 44199, Telephone 216-522-3715.