The Park Floral Co.

National Labor Relations Board - Board Decisions

Jan 11, 1940

19 N.L.R.B. 403 (N.L.R.B. 1940)

In the Matter of THE PARK FLORAL COMPANY and UNITED GREEN-
HOUSE AND FLORAL 11VORKERS UNION No. 510 OF THE UNITED CAN-
NERY, AGRICULTURAL , PACKING AND ALLIED WORKERS OF AMERICA.
AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS
Case No. R-1540 .-Decided January 11, 1940
Commercial Oreentouses-Jurisdictions, of Board: commerce: interstate dis-
tribution through cooperative marketing agency of goods sold locally to agency ;
company, by "leasing" greenhouses to certain employees, did not cease engaging
in business connected with interstate commerce; employees working in or in
connection with commercial greenhouses not "agricultural laborers"-Employee
Status: term "any employee" in Section 2 (3) of the Act embraces all employees
in -the legal and conventional sense except those by express provision excluded ;
designation of employees in certain "leases" as lessees or independent con-
tractors, not determinative of ; provisions in "leases" relating to demise to em-
ployees of greenhouses, not determinative of ; greenhouse employees named as
"lessees" in "leases" of greenhouses executed by employer, not independent
contractors or proprietors, but employees under Act ; other workers in green-
houses, accordingly, are employees of "lessor" and not of "lessees"-Agricultural
Laborer: defined : employees working in or in connection with commercial
greenhouses, not; cultivation in commercial greenhouses, not done on a farm or
incident to ordinary Ial riniiig operations ; artificial conditions and continuous
non-seasonal production as factors distinguishing industrial from agricultural
employment-Investigation of Representatives: controversy concerning repre-
sentation of employees ; employer refuses to recognize union until certified by
Board-Unit Appropriate for Collective Bargai-nirig: all workers employed in
and in connection with the Company's greenhouses, including growers, assistant
growers, helpers, assistant helpers, truck drivers, firemen, assistant firemen, tem-
peraturemen, repairmen, and shipping clerks. but excluding all persons having
authority to hire and discharge, the superintendent, assistant superintendent,
and the secretary of the Company, and timekeeper-Election Ordered: date of
holding, postponed in view of filing of charges of unfair labor practices after
hearing.
Mr. Marion A. Prowell, for the Board.
Daivis and Wallbank, by Mr. Harry C. Davis and Mr. Stanley T.
Wallbank, of Denver, Colo., for the Company.
Mr. Clyde L. Johnson, of Denver, Colo., for the Union.
Mr. Parker Bailey and Mr. Ralph Thvn.kler, of counsel to the Board.
19 N. L. R. B., No. 44.'
40
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On May 25, 1939, United Greenhouse and Floral Workers Union,
No. 510, herein called the Union, filed with the Regional Director
for the Twenty-second Region (Denver, Colorado) a petition alleg-
ing that a question affecting commerce had arisen concerning the
representation of employees of The Park Floral Company, Engle-
wood, Colorado, herein called the Company, and requesting an in-
vestigation and certification of representatives pursuant to Section
9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. On August 14, 1939, the National Labor Relations Board,
herein called the Board, acting pursuant to Section 9 (c) of the Act
and Article III, Section 3, of National Labor Relations Board Rules
and Regulations-Series 2, ordered an investigation and authorized
the Regional Director to conduct it and to provide for an appropri-
ate hearing upon due notice. On September 2, 1939, the Acting. Re-
gional Director issued a notice of hearing, and on September 9, 1939,
an amended notice of hearing, copies of each of which were duly
served upon the Company and upon the Union.
On September 12, 1939, the Company filed an answer to the peti-
tion. Therein the Company denied that any question affecting
commerce was here involved, within the meaning of the Act; denied
that the Union had been designated as collective bargaining repre-
sentative by a majority of the present greenhouse employees of the
Company; and alleged that the greenhouse employees of the Com-
pany are excepted, as agricultural laborers, from the provisions of
the Act. The answer further alleged that since September 1, 1939,
the greenhouses owned by the Company had been and were being
leased to lessees who will carry on substantially the greenhouse opera-
tions previously engaged in by the Company; that any persons
employed by such lessees in such greenhouses were and would be
employees of the lessees and not of the Company; and that, accord-
ingly, the question concerning representation alleged in the petition
had become moot.
Pursuant to the notice a hearing was held on September 12, 1939,
at Denver, Colorado, before Thomas S. Wilson, the Trial Examiner
duly designated by the Board. The Board and the Company were
-represented by counsel, and the Union by its representative. All
of said parties participated in the hearing. Full oportunity to be
heard, to examine and cross-examine witnesses, and to introduce
THE PARK FLORAL COMPANY 405
evidence bearing on the issues was afforded all parties. During the
course of the hearing the Trial Examiner made several rulings on
objections to the admission of evidence. At the close of the hearing
the Company orally moved to dismiss the petition, on the ground
that no question affecting commerce was involved, within the mean-
ing of the Act; that the greenhouse employees of the Company are
excepted, as agricultural laborers, from the provisions of the Act;
that the proof failed to establish the designation of the Union as the
collective bargaining representative of a majority of the greenhouse
employees of the Company ; and that the proof failed to establish
the other material allegations of the petition. The Trial Examiner
referred to the Board for appropriate action the matters covered by
the motion affecting the jurisdiction of the Board, and otherwise
denied the motion. The Board has reviewed the above rulings of
the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed. For reasons appearing
hereinafter, the motion to dismiss the petition is denied.
Subsequent to the hearing the Company lodged with the Board for
filing as part of the record herein a certain stipulation and agreement
between itself and counsel for the Board concerning certain facts.
The Board hereby directs the filing instanter herein of said stipula-
tion and agreement, as "Board Exhibit No. 7."
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company owns about 15 acres in Englewood, Colorado, to-
gether with 31 greenhouses and some packing sheds erected thereon.
Flowers 1 and plants are grown in the greenhouses throughout the
year, and on the unoccupied land during the temperate months.
They are packed and crated for shipment in the packing sheds. The
Company also owns and operates a retail store some 6 miles distant
in Denver, where flowers, plants, and related products are sold to
consumers.
The floral products grown in and about the greenhouses, in part,
are sold through the Company's retail store, and in part, the sub-
stantial amount, are distributed through The Park-Elitch Company,
herein called Park-Elitch, a Colorado corporation having its prin-
cipal place of business in Denver. Park-Elitch is a cooperative
marketing agency organized by 14 owners of greenhouses including
the Company, and engaged in the business of selling plants and flow-
ers. The Company owns 22 per cent of the capital stock of Park-
Elitch, and the secretary of the Company is its president. Park-
'Flowers as used herein includes potted bulbs.
283030-41-col. 19-27
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elitch employs 3 salesmen who make sales to customers in 17 States
in the central, southern, and western portions of the country. Dis-
tribution through Park-Elitch of plants and flowers grown in and
about the Company's greenhouses is in pursuance of a contract be-
tween the Company and Park-Elitch providing. for the exclusive
sale to Park-Elitch of all such products, •except those required for
sale in the Company's retail store.2 This contract is to continue in
effect for 3 years. Plants are packed by the Company and shipped
on order of Park-Elitch from the Company's greenhouses and pack-
ing sheds to customers of Park-Elitch located inside and outside of
the State of Colorado; 3 flowers are delivered to Park-Elitch in Den-
ver for shipment by it.
At the time of the filing of the petition herein and prior to Sep-
tember 1, 1939, the cultivation of floral products in and about the
Company's greenhouses, as well as their sale, was exclusively the
business of the Company. On or about September 1, 1939, the Com-
pany entered into an arrangement with the "growers" then in its
employ, involving in part the making of certain indentures, in form
leases , with these persons.5 The growers were the most skilled and
experienced of the greenhouse employees and in ' direct charge of
cultivation.
The instruments in question were made as of September 1, 1939,
and provided for a "lease" 6 of a certain number of the Company's
greenhouses for a period of 1 year to each grower "to grow vegetables,7
plants, and flowers therein, upon the . . . terms and conditions"
stated in the leases." The leases were made non-assignable, and pro-
hibited any subleasing without the consent of the Company. The
growers, who are denominated in the leases as lessees,' agreed to pay
to the Company a stipulated rental of 321/2 per cent of the total "net
sales" 10 derived from the sale of all products grown in their respective
'Similar contracts are in effect between Park -Elitch and the other 13 greenhouse
owners.
8 In connection with a stipulation of the parties as to the amount of plants shipped in
interstate commerce, It was agreed that shipment was "by" Park-Elitch. However, the
Company ' s secretary testified that the plants were shipped from the greenhouses, where
they are taken by "the Express Company."
4 The transaction was with all the growers . It is not clear whether they were then five
or six in number . The reason for the leasing is not shown.
At the time of the bearing not all of the greenhouses were leased. However, oral
agreements to lease as of September 1, covering greenhouses not yet leased , were in force
and the leases about to be executed . We assume for the purposes solely of this proceeding
that all the greenhouses are presently being operated under the leases.
6It is not altogether clear that the interests which the growers acquired in the green-
houses by virtue of their leases were those of lessees and not licensees.
7 The record does not disclose that the greenhouses were or are being used to grow
vegetables.
8 The use of the words "lease ," and "lessees" and similar expressions hereinafter Is not
intended to indicate the existence of a legal demise of the greenhouses but merely to refer
to the indentures and the persons therein named as lessees.
8 See footnote 8.
10 "Net sales" Is not defined in the leases.
THE PARK FLORAL COMPANY 407
greenhouses. The lessees further agreed to use the demised premises
only to grow vegetables, plants, and flowers. They undertook to
perform the necessary work and labor; to plant to the full capacity
of their respective greenhouses; to care for, water, grow, and harvest
the products; and to deliver the products to market in first-class con-
dition. In this connection, the Company agreed to market all the
products at actual cost. Planting, care, cutting, and marketing of the
products were required at all times to be satisfactory to one E. P.
Neiman, or to some other person employed by the Company for such
purpose. Neiman is the manager of the Company's greenhouses and
has served in that capacity for 22 years. He also is secretary of the
Company and president of Park-Elitch, as already noted. All the
leases were made subject to the provisions of the contract, above
mentioned, between the Company and Park-Elitch relating to the
sale to Park-Elitch of flowers and plants grown in and about the
greenhouses except those sold through the Company's retail store.
The lessees agreed to provide all soil, fertilizer, tools, hose, and equip-
ment necessary for cultivation. However, in this connection the Com-
pany agreed to sell all these to the lessees.- The lessees each agreed
"as an independent contractor" to assume "liability" for accidents,
taxes, contributions, strikes, hail, and casualties relating to "his prop-
erty" in the respective greenhouses and "his operations." The Com-
pany agreed to furnish heat, light, and water to the greenhouses
through the equipment on the premises; to pay for coal, power, water,
electricity, operating labor, and repair of the heating plant; and to
furnish and pay for material necessary to renew the "benches." 12 It
further agreed to sell to the lessees seeds, cuttings, and other materials
and equipment needed in the growing of the products. 1.3 The Com-
pany also agreed to make loans to the lessees to assist them "in
making" their crop. Title to all products was to be held by the lessees
for benefit of the Company as security for the rent and for any loans
to them. The Company also for such purpose was given a lien upon all
goods and chattels in or pertaining to the greenhouses. The lessees
agreed to surrender possession under the lease "at the expiration of
this agreement or at any time in, case of a termination for any cause."
Since the signing of the leases, the Company, through Neiman or its
greenhouse superintendent, Jensen, continues to plan and to instruct
the lessees what floral products to grow and when to grow them. The
assistant growers and helpers employed in the greenhouses prior to
September 1 have been retained to perform the work which they pre-
viously did, and this is apparently true of the other employees. Each
n It is not clear whether these sales are at cost. See footnote 14, infra.
12 The "benches" are long horizontal containers filled with selected soil to which fertilizer
is added. They are used in cultivation.
13 It is not clear whether these sales were at cost. See footnote 14.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
week the Company advances to the lessees a sum of money to pay cur-
rent expenses including the wages of assistant growers and helpers.
The Company furnishes heat, water, and benches. , The soil in the
benches at the time of leasing was given the lessees. The Company
sells to the lessees bulbs, cuttings, seeds, and similar materials used in
cultivation, which it purchases in large quantities and at a discount.
The record is not entirely clear whether the sales to lessees are at
actual cost.14 The Company's packing sheds are used by the lessees
to pack and crate the floral products for shipment, and the Company
furnishes the boxes, crates, newspapers, and other materials necessary
for- such purposes. Debts incurred by the lessees to the Company in
the course of operations are paid from the receipts of floral products
sold to the Company's retail store and Park-Elitch.
The Company purchases various materials including bulbs, seeds,
plants, cuttings, soil, fertilizer, water, fuel, pots, boxes, other con-
tainers, and miscellaneous supplies which are used in planting, cul-
tivating, and shipping the floral products grown in and about the
greenhouses, and in operating the greenhouses. The cost of these
purchases in the fiscal year of the Company from July 1938 to July
1939 was $63,039. As above mentioned, except for such materials
which are furnished the lessees or used by the Company, these ma-
terials since September 1 have been resold by the Company to the
lessees, apparently under a credit arrangement. Substantially all
bulbs are shipped to the greenhouses from outside Colorado, prin-
cipally from Europe, Oregon, and Washington. The number of bulbs
purchased in 1938 amounted to between 50,000 and 60,000 and their
cost during the above fiscal year was $11,000. Seeds likewise are
shipped to the greenhouses almost entirely from outside of the State.
In the above fiscal year their cost was between $300 and $400. Ap-
proximately $4,367 or 24 per cent of all plants purchased during that
year were brought in from outside of Colorado. Although most of
the cuttings are grown in the Company's own greenhouses, some
chrysanthemum cuttings are obtained in Nebraska and Ohio, and
some carnation cuttings 15 in New York. Soil, fertilizer, water, fuel,
pots, boxes, containers, and miscellaneous supplies are purchased in
Colorado.
As above stated, the plants and flowers grown in and about the
Company's greenhouses are sold through the Company's retail store
and Park-Elitch. . The store sells not only floral products of the
14 The leases In question each provide :
Lessor will also sell to lessee , upon reasonable request , any plants , seeds , cuttings,
fertilizer , insecticide , powders, tools , equipment , etc., that it may have in stock on
hand, and also deliver to market all products of lessee at actual cost to it.
"These cost around $185 in 1939.
THE PARK FLORAL .COMPANY 409
Company's greenhouses, but of other greenhouse owners. During the
fiscal year from July 1938 to July 1939 the total amount of sales of
floral products at the retail store was $52,747, of which $877 was
shipped to points outside of Colorado. During the same period sales
from the Company's greenhouses to Park-Elitch amounted to $135,000,
about one-half of which was for plants. Sixty per cent of all plants
sold to Park-Elitch are regularly shipped to points outside of Colo-
rado. Some of the flowers sold to Park-Elitch likewise are shipped
out of the State but the amount thereof is not shown by the record.
We are satisfied, and we find, that the business of cultivating and
selling the floral products grown in and about the Company's green-
houses remained and still is, despite execution of the leases, the busi-
ness of the Company and not that of the lessees. We are required in
administering the Act and to effectuate its policies to inquire into the
substance of relationships. The operations and activities of the Com-
pany with respect to this business, as well as its authority and control,
have not changed substantiall-y since September 1, 1939.16 All ma-
terials and equipment used in the business are purchased or furnished
by the Company. It controls and supervises production. This is
shown by the following, among other things : the lessees are bound
by their contract to grow only the specified products and to use the
premises for no other purpose ; they must plant to the full capacity
of the respective greenhouses ; they must perform the necessary work
and labor in which they are assisted as before ; the entire process of
planting, care, and cutting must be to the satisfaction of the Com-
pany's greenhouse manager or other agent; what the lessees plant and
when they plant it is controlled by instruction of the Company. Vari-
ous functions incidental to the operation of the greenhouse and per-
formed prior to September 1 by employees of the Company other than
growers or their assistants and helpers such as maintenance of the
heating plant are still performed by the Company. With respect to
sale and distribution, the lessees cannot sell at will, for their leases
are subject to the Company's contract with Park-Elitch, which ex-
tends beyond the term of the leases. While neither the contract nor
the leases apparently provide for sales through the Company's retail
store, these are continuing to be made as previously. A security title
in all products and equipment is reserved in the Company.
It is true that the Company's profits under the lease are limited to
its net gain after making necessary deductions from the 321/2 per
cent of the total net sales paid to it by the lessees. However, there
is nothing in the record to show how this percentage was reached, or
whether the Company's profits differ in amount under the leases
76 As stated above, we assume , for the purposes solely of this proceeding, that the
terms of the leases are being carried out.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from what they would have been under the procedure followed before
September 1. The provision for payment of the 321/2 per cent of net
sales, taken in connection with the other financial arrangements exist-
ing between the Company and the lessees, is merely a method for
allocating the profits of the business, along with certain items, to the
Company after payment of labor and certain other costs.
As already mentioned, 60 per cent of all plants and an undisclosed
amount of the flowers sold to Park-Elitch under the contract are
regularly shipped to points outside of Colorado. It is immaterial
whether the shipments are made from the Company's greenhouses or
from Park-Elitch in Denver, although we have found that in the case
of the plants shipments are made from the greenhouses. It is plain
that both the Company and Park-Elitch contemplate this interstate
shipment under their contract, that production by the Company and
interstate distribution by Park-Elitch are integrated operations. The
sales and distribution by Park-Elitch constitute trade and commerce
among the several States, and a stoppage of production in the Com-
pany's greenhouses because of a strike or other form of industrial
strife or unrest necessarily would result in a cessation of the move-
ment of the product in the interstate commerce which both the
Company and Park-Elitch contemplate.
II. THE ORGANIZATION INVOLVED
United Greenhouse and Floral Workers Union, No. 510, is a local
of The United Cannery, Agricultural, Packing and Allied Workers
of America, a labor organization affiliated with the Congress of
Industrial Organizations. The Union admits to membership green-
house workers, including growers, helpers, laborers, farm men,
maintenance employees, and truck drivers, except those having the
right to hire and discharge.
III. THE EMPLOYEES, WITHIN THE MEANING OF SECTION 2 (3) OF THE ACT
Cultivation in the greenhouses is done entirely by hand; some
machinery is used in that performed outside. Planting of the bulbs,
seeds, and cuttings in the greenhouses is done in benches, in smaller
containers called "flats," and in pots. Thermal conditions are care-
fully regulated throughout the year. The flowers and plants are
watered, the soil chemically treated, and other care given. When
the products are ready for the market, the flowers are cut, plants
potted, and the products packed or crated for shipment.
About 30 persons work in and in connection with the Company's
greenhouses. Prior to September 1 all were employees of the Com-
pany. They are classified, according to work, as follows : growers
THE PARK FLORAL COMPANY 411
and assistant growers, helpers and assistant helpers, temperatureman,
truck drivers, repairman, fireman, assistant fireman, clerks, and super-
intendent. The growers, as already mentioned, are in direct charge
of cultivation. Among other things they regulate the temperature
in the greenhouses, cultivate and water the plants and flowers, and
cut flowers. The assistant growers assist the growers in this work.
Two of them. also do some potting and packing of plants. The
helpers also water plants, make flower cuttings, and assist in the
cultivation of plants and flowers. In addition, they fill the benches
with soil, pot bulbs, and do odd work. They also perform some of
the packing and crating of the products in the packing sheds. One
of the helpers works occasionally at the Company's retail store. The
assistant helper assists the helpers. The temperatureman works part
of the year regulating thermal conditions. The truck drivers deliver
the plants and flowers by truck to Denver and haul soil to the green-
houses. The repairman repairs benches, broken glass in the green-
house roofs, and pipes. The fireman and assistant fireman fire and
tend to the boilers of the heating plant Which supplies heat to the
greenhouses. One of the clerks takes orders at the greenhouses from
Park-Elitch for shipments, solicits orders from customers, and notes
the time of all workers on time sheets which are sent to the Com-
pany's offices in Denver.- The other clerk is the shipping clerk
who assembles the plants for shipment from the greenhouses. The
superintendent has charge of all workers, gives orders to the growers
and helpers, and has authority to hire and discharge.18
The Company contends that as a result of the making of the
leases, not more than eight of the above workers are its employees.
Although no specific mention is made of the identity of the eight,
reference evidently is intended to be had to.the three truck drivers,
the fireman 'and assistant fireman, the two clerks, the superintendent,
and the repairman i9 In sum, the Company maintains that each
grower with whom a lease was made is an independent proprietor or
contractor and not its employee, and the assistant growers, helpers,
and assistant helpers working in the greenhouses covered by the
indenture are the grower's employees. In so far as this contention
17 It appears that time is kept by the Company at the present of all growers, helpers,
and other workers regardless of the existence of the leases.
'a Whether this authority exists over lessees is discussed later.
1B This is shown from the following undertakings of the Company in the leases, among
other things:
1. Lessor will also sell to lessee . . . any plants . . . etc., ... and also deliver to
market all products of lessee at actual cost to it.
2. Lessor agrees to . . . furnish heat, . . . and pay for all . . . operating labor, and
repairs of said heating plant.
3. Lessor will employ ... E. P. Neiman, or some other skilled and experienced man
to advise and confer with lessee . . . and lessee agrees that all such matters shall be
at all times satisfactory to him.
The temperatureman evidently was not being employed at the time of the hearing.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assumes that cultivation and sale of the floral products grown in
such greenhouses is the business of the grower and not of the Com-
pany, what has been heretofore set forth is applicable and need not
be restated.
We are satisfied that regardless of the execution of the leases the
growers did not by virtue of that fact cease to be employees of the
Company, within the meaning of Section 2 (3) of the Act.20 The
term employee, as used in the statute, embraces "any employee,"
that is, all employees in the legal and conventional sense except those
by express provision excluded.21 The status of the growers is not
conclusively determined by their designation in the leases as lessees
and as independent contractors, nor by provisions in the leases re-
lating to a demise or license. Here the growers continued to hold
the same relative positions which as employees they had filled prior
to September 1. They still are required to, and do, grow plants and
flowers, water them, regulate the temperature, and cut flowers. They
are "supposed" to work the same number of hours which they pre-
viously worked. Purchases in the market of bulbs, seeds, and similar
materials, various containers, and equipment for use in the green-
houses, maintenance of heat and water facilities, employment of
"operating labor," and provision for packing facilities are all func-
tions of the Company performed by employees other than growers.
Sales of the floral products are made through the Company's retail
store or through Park-Elitch under the Company's contract with
that agency, and not at the will of the growers. In brief, the work
of the growers, as before, is one stage in and an integral part of the
Company's entire business, its purchasing, production, and market-
ing. Moreover, the growers are subject to the same extensive control
by and right of control in the Company over the manner and mode
of their work. Indeed, the leases are conditioned upon the grower's
agreement to "plant, . . . care for, water, grow and harvest," and
that such "planting, care, cutting . . . shall be at all times satisfac-
tory" to the Company. Discharge by the growers of their duties
under the leases and otherwise in connection with the respective
greenhouses concerns not so much the accomplishment of any speci-
fied result as a continuing operation in close association with the
whole of the Company's enterprise. Their enjoyment of what in-
terests they acquired in the greenhouses under the leases does not
preclude their being employees. Their rights of occupancy and pos-
20 Section 2 (3) of the Act provides , in part:
The term "employee" shall include any employee, .. . but shall not include any
individual employed as an agricultural laborer, . . .
Whether the growers are excepted , as agricultural laborers , from the operation of the
Act, is discussed below.
21 See Matter of Seattle Post-Intelligencer Department of Hearst Publications , Inc. and
Seattle Newspaper Guild, Local No. 82, 9 N. L. R. B . 1262, 1274-1275.
THE PARK FLORAL COMPANY 413
session are incident and requisite to the performance of their services
as employees. We do not consider the method by which the growers
are compensated as inconsistent with their employee status. Con-
pensation of employees may be computed on the basis of sales re-
ceipts, purchases, and other items, and may be supplemented by a
credit arrangement with the employer. The purchases of the growers
from the Company of seeds, cuttings, fertilizer, and other material
and equipment are simply part of the entire financial arrangement
whereby the compensation is fixed. As above mentioned, a security
title in all materials and products is reserved in the Company.22
We find that the growers who work in the Company's greenhouses,
whether or not they have made a lease with the Company in the
manner above set forth, have not by virtue thereof ceased being em-
ployees within the meaning of Section 2 (3) of the Act.23
We also are satisfied that the assistant growers, helpers, and assist-
ant helper who work in the greenhouses similarly did not cease being
employees of the Company, within the meaning of Section 2 (3). The
considerations which led us to conclude that the growers are em-
ployees apply equally here. Like the growers, these persons perform
the same services and occupy the same relative position in the business
of the Company as before September 1. The agreement of the grow-
ers that planting, care, cutting, and marketing of the floral products
shall be to the satisfaction of Neiman or other employee subjects the
work of these persons to the same control by the Company as previ-
ously existed. Moreover, since the growers are employees of the
Company, the assistant growers, helpers, and assistant helpers are
its employees. This would be true under general law, even though
the growers did the hiring. That the growers, helpers, and assistant
helpers are paid weekly by the growers out of a weekly advance by
the Company to the growers does not establish that these workers are
employees of the growers and not of the Company.
The Company also urges that the growers, assistant growers, help-
ers, and assistant helpers are not employees within the meaning of
the Act, because of the exception made in Section 2 (3) regarding
agricultural laborers.24 The Company contends that these employees
are excluded, as agricultural laborers, from the operation of the
statute.
We have had occasion in several cases to interpret the term "agri-
cultural laborer" as used in the Act.25 What we have said may be
22 For judicial treatment of a question under local statute similar to that here con-
sidered, see Carlson v. Industrial Accident Commission, 213 Cal. 287, 2 Pac. (2d) 151,
cert. den. 284 U. S. 681.
23 See Matter of Interstate Granite Corporation and Granite Cutters' International
Association of America, Charlotte Branch, 11 N. L. R. B. 1046.
24 See footnote 20, supra.
25 See Matter of North Whittier Heights Citrus Association and Citrus Packing House
Workers Union, Local No. 21091, 10 N. L. R. B. 1269; Matter of American Fruit Growers,
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
epitomized , as follows : An agricultural laborer, within the meaning
of Section 2 (3), is a person employed by the owner or a tenant
of a farm on which products in their raw or natural state are pro-
duced ( 1) to perform services on such farm in connection with the
cultivation of the . soil, the harvesting of crops, the nursing, feeding,
or management of livestock , bees, and poultry , or other ordinary
farming operations ; or (2) to perform services in connection with
the processing of the products produced , or the packing , packaging,
transportation or marketing of such products in their raw or natural,
or processed state, as an incident to ordinary farming operations, as
distinguished from manufacturing or commercial operations.
Under this construction of the statute , persons employed to culti-
vate plants and flowers in commercial greenhouses , to perform other
services in connection with the operation of these greenhouses, such
as tending to the heating and watering facilities , or to pack , package,
transport , or market the floral products grown , are not agricultural
laborers. The cultivation in which they engage is not done on a
farm, nor are the other services which they perform incident to
ordinary farming operations . Planting , care, and growing of the
plants and flowers have been removed from the farm and from the
natural conditions which there obtain , and are carried on under arti-
ficial conditions and as a specialized process. Growing is done in
soil-filled containers kept in glass -covered, heat-regulated houses.
Production is continuous throughout the year and not affected by
the change of the seasons . The work in the greenhouses is industrial
in nature rather than agricultural in the common understanding .of
that term. With respect to the services performed in operating the
heating and watering facilities , in packing , packaging , transporting,
and marketing the products , and in other similar activities , such work
is not agricultural in nature , nor is it, in view of what has been stated
above, incident to ordinary farming operations.26
The record shows that one employee of the Company engages in
cultivation during the temperate months on the land adjacent to the
greenhouses . Inasmuch as he also is employed as a helper inside
the greenhouses , when not working outside, we are of the opinion
that he may be considered with those inside the greenhouses for pur-
poses of work classification.
Inc., et al., and Fruit & Vegetable Workers Sub-Local of #191, UCAPAWA, C. I. 0., 10
N. L. R. B. 316; Matter of Tovrea Packing Company, a corporation and Amalgamated
Meat Cutters and Butcher Workmen of North America, Local No. 313, 12 N. L. R. B. 1063 ;
Matter of Grower-Shipper Vegetable Association of Central California and Fruit and Vege-
table Workers' Union of California, No. 18211, 15 N. L. R. B. 322; Matter of California
Walnut Growers Association and Walnut Workers Union, Local 92 of 'United Cannery,
Agricultural, Packing and Allied Workers of America, 18 N. L. R. B. 493. .
26 See, generally , Park Floral Co. V. Industrial Commission, 91 Pac. (2d) 492 (Colo.
1939), where greenhouse employees of the Company were held not to be agricultural
laborers, within the meaning of the Colorado "Employment Act."
THE PARK FLORAL COMPANY 415
We find that the workers employed in and in connection with the
Company's greenhouses, including growers, assistant growers, help-
ers, assistant helpers, truck drivers, firemen, assistant firemen, tem-
peraturemen, repairmen, and shipping clerks, are not' agricultural
laborers within the meaning of Section 2 (3) of the Act.
IV. THE QUESTION CONCERNING REPRESENTATION
In May 1939, the Union, through its representatives, informed the
Company that it then represented a majority of the employees work-
ing in and in connection with the Company's greenhouses, and re-
quested the Company to bargain collectively with it in respect to
wages, hours, and other working conditions of these employees. The
Union submitted to the Company a draft of a proposed contract to
be used as a basis for negotiations. The Company refused to enter
into collective bargaining until the Union was certified as collective
bargaining representative by the Board.
We find that a question has arisen concerning representation of
employees of the Company.
V. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
UPON COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
between the States and foreign countries, and tends to lead to labor
disputes burdening and obstructing commerce and the free flow of
commerce.
VI. THE APPROPRIATE UNIT
In its petition the Union alleges that "all employees in the green-
house with the exception of the superintendent" constitute a unit
appropriate for purposes of collective bargaining. As further de-
fined by the Union at. the hearing, this unit would comprise all
workers employed in and in connection with the Company's green-
houses, and specifically growers, assistant growers, helpers, tempera-
turemen, assistant helpers, truck drivers, firemen, assistant firemen,
repairmen, and shipping clerks, but would exclude all persons having
authority to hire and discharge, such as the superintendent, assistant
superintendent, and secretary of the Company, and the timekeeper.
We see no reason for not finding the afore-mentioned unit to be
appropriate. The functional coherence in 1 heir work shows a mutu-
ality of interest as employees. Accordingly, we find that all workers
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed in and in connection with the Company's greenhouses,
including growers'27 assistant growers, helpers, assistant helpers, truck
drivers, firemen, assistant firemen, temperaturemen, repairmen, and
shipping clerks, but excluding all persons having authority to hire
and discharge, the superintendent, assistant superintendent, and the
secretary of the Company, and the timekeeper, constitute a unit ap-
propriate for the purposes of collective bargaining, and that said
unit will insure to employees of the Company the full benefit of their
right to self-organization and to collective bargaining and otherwise
effectuate the policies of the Act.
VII. THE DETERMINATION OF REPRESENTATIVES
At the time of the hearing, approximately 30 persons were employed
in the appropriate unit. One of the members of the Union testified
that 19 of these employees had in his presence signed certain mem-
bership application cards designating the Union as the signers' bar-
gaining representative. The Union was unwilling to submit these
cards into evidence because it feared that such disclosure would result
in company discrimination against the signers, although the Company
stated that it would engage in no such discrimination. In view of
the nature and quantity of the proof offered regarding representa-
tion, we believe, and find, that the question which has arisen concern-
ing the representation of the employees can best be resolved by hold-
ing ai election by secret ballot to determine the choice of bargaining
representative.
Since the filing of the petition and the hearing thereon, the Union
filed with the Regional Director a charge alleging that the Company
had engaged in and was engaging in certain unfair labor practices
with respect to employees in the greenhouses. In view of this circum-
stance the election which we shall direct will be held at a time to be
determined by the Board at a future date. Those employees in the
appropriate unit will be eligible to vote, subject to such limitation and
additions as then may be stated by the Board.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of The Park Floral Company, Englewood,
Colorado, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act.
21 There is some claim in the record that the growers have authority to hire and dis-
charge. If this is so, they are excluded from the appropriate unit.
THE PARK FLORAL COMPANY 417
2. All workers employed in and in connection with the Company's
greenhouses, including growers, assistant growers, helpers, assistant
helpers, truck drivers, firemen, assistant firemen, temperaturemen,
repairmen, and shipping clerks, but excluding all persons having au-
thority to hire and discharge, the superintendent, assistant superin-
tendent, and the secretary of the Company, and the timekeeper, con-
stitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the National Labor Relations
Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor. Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, it is hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with The Park Floral Company, Englewood, Colorado, an election
by secret ballot shall be conducted at such time as the Board hereafter
shall direct, under the directioui and supervision of the Regional
Director for the Twenty-second Region, acting in this matter as agent
for the National Labor Relations Board, and subject to Article III,
Section 9, of said Rules and Regulations, among all workers employed
in and in connection with the Company's greenhouses, including grow-
ers, assistant growers, helpers, assistant helpers, truck drivers, firemen,
assistant firemen, temperaturemen, repairmen, and shipping clerks,
employed by the Company, but excluding all persons having author-
ity to hire and discharge, the superintendent, assistant superintend-
ent, and the secretary of the Company, and the timekeeper, to deter-
mine whether or not they desire to be represented by United Green-
house and Floral Workers Union, No. 510, for the purposes of col-
lective bargaining.