Buckeye Floral Co.

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 thefirst 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.