The Park Floral Co.

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.