Biosource Landscaping Services, LLC

National Labor Relations Board - Administrative Judge Opinions

Jul 13, 2007

09-CA-043283 (N.L.R.B. Jul. 13, 2007)

JD–47– 07
Xenia, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
BIOSOURCE LANDSCAPING SERVICES, LLC
and Case 9-CA-43283
PAUL D. BROWN, AN INDIVIDUAL
and Case 9-CA-43287
MATTHEW K. LIMING, AN INDIVIDUAL
Eric J. Gill, Esq., of Cincinnati, OH,
for the General Counsel.
Laura L. Wilson, Esq., of Dayton, OH,
for the Respondent-Employer.
DECISION
Statement of the Case
Bruce D. Rosenstein, Administrative Law Judge. This case was tried before me on April
24 and 25, 2007, in Cincinnati, Ohio, pursuant to a Consolidated Complaint and Notice of
Hearing in the subject cases (complaint) issued on February 13, 2007, by the Regional Director
for Region 9 of the National Labor Relations Board (the Board). The underlying charges and
amended charges were filed on various dates in 20061 and 2007 by Paul D. Brown and
Matthew K. Liming (Brown or Liming), alleging that Biosource Landscaping Services, LLC (the
Respondent or Employer), has engaged in certain violations of Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act). The Respondent filed a timely answer to the complaint
denying that it had committed any violations of the Act.
Issues
The complaint alleges that the Respondent engaged in a number of independent
violations of Section 8(a)(1) of the Act including threats of job loss, plant closure, and coercive
interrogation. Additionally, the complaint alleges that the Respondent engaged in violations of
Section 8(a)(1) and (3) of the Act by discriminatorily laying off Brown and Liming because of

1 All dates are in 2006 unless otherwise indicated.
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their support for the International Union of Operating Engineers, Local 18 (Union).
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following
Findings of Fact
I. Jurisdiction
The Respondent is a corporation engaged as a contractor performing commercial and
residential landscaping and in the production and sale of landscaping products at its facility in
Xenia, Ohio, where it derived gross revenues in excess of $500,000 and purchased and
received goods and materials valued in excess of $10,000 directly from points outside the State
of Ohio. The Respondent admits and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background
During the month of February 2006, Union organizer Scott Stevenson met with
Respondent’s Part-Owner and President Jeanne Hellstrom to explain the benefits of union
representation. Hellstrom wanted more time to consider the matter and was reluctant to agree
to voluntary recognizing the Union. Accordingly, Stevenson commenced visiting the various job
sites that Respondent’s employees were working on in an effort to independently talk to them
about the benefits of union representation. Stevenson met with Brown and Liming at their work
location and Brown agreed to talk to his co-workers about the benefits of union representation
and inquire whether they would sign union authorization cards. Stevenson also visited
employees at their homes and by July 8 had acquired signed authorization cards from a majority
of the Respondent’s employees. Accordingly, on July 10, Stevenson met with Hellstrom at the
facility and asked that she voluntary recognize the Union as the employee’s collective-
bargaining representative. Hellstrom was non-committal and within the hour Stevenson
received a telephone call from an Attorney representing the Respondent who apprised him that
the Employer was unwilling to recognize the Union and wanted to proceed to an election before
the Board.
In order to put additional pressure on the Respondent to recognize them, the Union
engaged in recognitional picketing for 30 days at various job sites and began to contact general
contractors in the area who had previously employed the Respondent for landscaping services.
These Union contractors were requested not to retain the Respondent for future landscaping
projects due to its refusal to voluntary recognize the Union as the representative of its
employees. Indeed, a local Union contractor sent a letter to Hellstrom on May 18, encouraging
her to consider the benefits of Union representation (R Exh. 9). As a result of these actions, a
considerable portion of the Respondent’s repeat commercial landscaping business did not
materialize during the remaining months of 2006. Part-Owner Mark Lee testified that during the
2006 business year, the Respondent lost one-third of its business revenue or about $700,000.
Accordingly, in June 2006, Hellstrom with input from Lee and former owner Steve Combs
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commenced planning for a reduction in force.2
On July 17, the Respondent conducted a reduction in force that included the layoff of six
employees including Brown and Liming.
The Union filed a representation petition on July 19 (R Exh. 17). In a Decision and
Order dated August 18, the Regional Director found that the unit sought by the Union did not
constitute an appropriate bargaining unit, and because the Union would not proceed to an
election in any other unit, dismissed the petition (R Exh. 18). Thereafter, the Union filed a
second representation petition on September 8, seeking an expanded bargaining unit and on
October 23, the Regional Director issued a Decision and Direction of Election (R Exh. 1). An
election was held on November 21, in which the tally of ballots showed that two votes were cast
for the Union and seven ballots against representation. Accordingly, the Regional Director
issued a Certification of Results of the election finding that the Union was not selected as the
collective-bargaining representative of the Respondent’s employees (R Exh. 20).
Respondent’s part-owner Hellstrom (5% ownership interest) along with business
partners Mark and Theresa Lee (49% and 46% ownership interest respectively), purchased the
Employer from former owner Combs in November 2005. As part of the sale agreement, Combs
remained with the Employer in a sales and estimating capacity for a period of one year, leaving
the Respondent on December 1. At all material times the pertinent employee complement
includes two Commercial Landscape Foremen, Kelly Guthrie and Tim Muterspaw, a Residential
Landscape Foreman, Justin Pemberton, and a Maintenance and Production Foreman, Dustin
Miller.3 In addition, there are four employees on the hydro seeding crew, Donald Combs, David
Dodson, Brown and Doug Leslie. As members of the hydro seeding crew, the employees
typically move from job-to-job and report to the foreman of the job to which they are assigned.
Liming serves as a maintenance mechanic in the shop and as a driver delivering landscape
products to customers.
The Respondent generates 40 percent of its revenue from on-site retail and wholesale
sales of its landscape products, including topsoil, mulch, garden blends and gravel. Additional
revenue is generated by snow removal jobs during the winter months and the spreading of bio-
solids in local fields. The remaining 60 percent of the Employer’s revenue is generated through
its commercial and residential landscaping projects, including hydro seeding. Of this 60
percent, about half is attributed to commercial landscaping work.
A variety of equipment is used by the Employer in its production operations. The
Respondent has CAT loaders, a rubber tired backhoe, a track hoe, several bobcats and a
dozer. It also has grinder production machines, a topsoil processor, and a trammel screen. It
also uses dump trucks to deliver landscaping products to jobsites and customers.
B. The Section 8(a)(1) Allegations
The Board has held that interrogation is not a per se violation of Section 8(a)(1) of the
Act. Rossmore House, 269 NLRB 1176, (1984), affd. sub nom. Hotel Employees Union Local

2 The evidence establishes that in April 2006 the Respondent employed 14 employees. By
April 2007, the complement of employees had been reduced to 7.
3 In the Regional Director’s Decision and Direction of Election dated October 23, he found
that Foreman Muterspaw, Pemberton and Miller were not supervisors within the meaning of
Section 2(11) of the Act and were eligible to vote in the November 21 election (R Exh. 1).
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11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In determining whether an interrogation is unlawful,
the Board examines whether, under all the circumstances the questioning reasonably tends to
interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. Rossmore
House, 269 NLRB at 1177-1178. Emery Worldwide, 309 NLRB 185, 186 (1992). Under the
totality of circumstances approach, the Board examines factors such as whether the
interrogated employee is an open and active union supporter, the background of the
interrogation, the nature of the information sought, the identity of the questioner, and the place
and method of interrogation. Rossmore House, 269 NLRB at 1178 fn. 20; Bourne v. NLRB, 332
F.2d 47, 48 (2d Cir. 1964); Sunnyvale Medical Clinic, 277 NLRB 1217, 1218 (1985).
1. Allegations concerning Jeanne Hellstrom
The General Counsel alleges in paragraph 5(a) of the complaint that in June 2006,
Hellstrom coerced employees by telling an employee that it would not permit a union, or it would
prevent a union, and that a union would never work informing employees that it would be futile
for them to select the Union as their bargaining representative.
a. Facts
There is no dispute that the Respondent was opposed to having the Union represent its
employees and Hellstrom informed them that it was not in their best interests because it would
come between them. Indeed, Hellstrom told employees who engaged her in conversations
about the Union that in her opinion a third-party organization would interfere with our mutual
ability to succeed in the landscaping business. Moreover, Hellstrom told employees that if a
union came in she would lose control and would be unable to discuss issues and problems with
employees without the presence of a union representative.
In May 2006, Brown testified that he talked to Hellstrom at the water cooler with
Foreman Miller and informed her that he thought a union would benefit both the Employer and
its employees. According to Brown, Hellstrom stated that there would be no union in the facility.
Brown further testified that immediately after the conversation with Hellstrom, Foreman Miller
told him that Hellstrom would shut the doors before a union would come in the facility.
In June 2006, Brown expressed his opinion to Hellstrom by the showroom floor that we
need a union because it would help us get more prevailing wage work. According to Brown,
Hellstrom told him that there would be no way that a union could come in the facility because
she would lose total control of personnel. Hellstrom further told Brown that everybody has an
opinion and you are entitled to your opinion but there would be no way that a union would be in
there and she would do anything to stop a union from coming in the facility.
Hellstrom categorically denied that she made the statements attributed to her in this
paragraph of the complaint
b. Discussion
Brown’s testimony does not confirm that Hellstrom made the statements attributed to her
in the complaint allegations. Rather, Brown testified that Foreman Miller informed him that
Hellstrom would shut the doors before a union would come in the facility. First, I note that no
allegations are alleged in the complaint that Miller engaged in any unlawful conduct. Second,
even if such allegations were alleged, the Regional Director affirmatively determined that Miller
was not a statutory supervisor within the meaning of the Act, and therefore, such statements
cannot be attributed to the Respondent (R Exh. 1). Lastly, Brown’s testimony connects the
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statements alleged in the complaint to Miller rather then Hellstrom. I find that Brown’s testimony
cannot be credited as he asserts that Miller told him what Hellstrom would do and that
Hellstrom’s testimony is couched by her opinion rather then direct threats to Brown. Moreover,
Miller did not support Brown’s testimony that Hellstrom stated there would be no union in the
facility.
For all of those reasons, I recommend that the allegations alleged in paragraph 5(a) of
the complaint be dismissed.
The General Counsel alleges in paragraphs 5(b) and (c) of the complaint that during
June 2006, Hellstrom threatened employees with plant closure if the Union was voted in as their
collective-bargaining representative.
a. Facts
Since 1986, Guthrie was employed at the predecessor employer and he continued as a
Landscaping Foreman at the Respondent until he voluntarily left in September 2006, due to his
hours of work being reduced. Guthrie signed a union authorization card and expressed his
opinion to Hellstrom that a union would be beneficial to the Employer and its employees.
Hellstrom informed Guthrie that in her opinion a union was not the right way to go for the
Respondent. Guthrie testified that Hellstrom held a number of meetings with employees in
which the Union was discussed. The majority of the meetings occurred after July 2006 but he
remembered that a meeting was held in June 2006 with all employees. During the course of the
meeting, Guthrie testified that Hellstrom stated that she would close the doors before she would
let the Union come in and take control of her Company. Employee Doug Leslie also testified
that he attended a meeting in June 2006 with 7 or 8 employees in which Hellstrom discussed
issues related to the Union and the distribution of authorization cards. During the course of the
meeting, Leslie testified that Hellstrom informed the employees that if the Union came in she
would have to close the doors. Hellstrom further stated that she could not afford to have the
Union come in and would have to go through the Union if she wanted to talk with anybody. She
also said that the Union would just cause conflict in the Company.
Liming testified that around the beginning of June 2006, at a time when he was talking to
Miller just after lunch, Hellstrom approached them and asked “what do you all know about the
Union thing?” Liming said it was going to get us prevailing wage jobs so it’s probably a good
thing. Hellstrom then said that a union would not help the company and would hurt it financially.
She further stated “that if the Union got in, she would probably close the doors down and then
open it back up in a different name later on”.
Hellstrom admitted holding a meeting with employees in June 2006 in which issues
relating to the Union were discussed but denies that she made any threatening statements or
informed employees that she would close the doors if the Union was voted in as their collective-
bargaining representative either during the meeting or at any other time.
Both Foreman Muterspaw and Miller testified that they attended a meeting in June 2006
with other employees in which Hellstrom stated that the Respondent could not financially
support a union, a union was not in the best interest of the company and it was not the direction
that she wanted to take the company. While Muterspaw stated in his testimony that Hellstrom
never threatened employees about their union activities or threatened to close the plant, he did
not specifically testify that Hellstrom did not make the comments alleged in the complaint during
the June 2006 meeting. Miller testified that he does not remember Hellstrom saying at the June
2006 meeting that if the Union comes in she would close the doors but he could not state that
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Hellstrom did not say it either. He testified that he simply could not remember (GC Exh. 14).
Miller was not asked about nor did he testify concerning the statements that Hellstrom made in
Liming and his presence about closing the doors down in early June 2006.

b. Discussion
Guthrie impressed me as a credible witness whose testimony has a ring of truth to it. He
was of the opinion that the presence of the Union could generate more prevailing wage work for
the Respondent and so informed Hellstrom. He supported Hellstrom’s testimony that business
started to dramatically drop off in the summer of 2006 after the Union put pressure on local
general contractors to not hire the Respondent for landscaping services and a number of
employees including himself saw their work hours reduced. I also note that Guthrie was a
Foreman who worked closely with Hellstrom on a daily basis and supported her testimony that
Brown and Liming were laid off for legitimate business reasons unrelated to there union
activities. Therefore, I find his version of what occurred at the June 2006 meeting more
plausible and fully credit his testimony that Hellstrom told employees that she would close the
doors if the union was voted in as their collective-bargaining representative. Likewise, Leslie
specifically named the employees who attended the June 2006 meeting in the showroom and
was positive that Hellstrom stated during the course of the meeting, when discussing issues
relating to the Union and expressing that a union was not in the best interests of the company,
that she would close the doors if the Union came in.
Liming’s testimony that Hellstrom threatened to close the doors down is consistent with
the testimony of Guthrie and Leslie. Miller was not asked nor did he testify about the June 2006
threat to close the doors down.
For all of the above reasons, I credit the testimony of Guthrie and Leslie and do not rely
on the general denials of Muterspaw and Miller that did not specifically deny the comments
made by Hellstrom at the June 2006 meeting in finding that Hellstrom made the comments
attributed to her in paragraphs 5(b) and (c) of the complaint. Likewise, I credit Liming’s
testimony that is fully consistent with Guthrie and Leslie that Hellstrom threatened to close the
doors down if the Union was voted in as the employees’ collective-bargaining representative.
Under these circumstances, I conclude that Respondent engaged in violations of Section 8(a)(1)
of the Act. Williamhouse of California, Inc., 317 NLRB 699 (1995).
The General Counsel alleges in paragraph 5(d) of the complaint that on July 11,
Hellstrom interrogated an employee about the employee’s union activities.
a. Facts
Liming testified that on July 11, Hellstrom approached him in the shop and asked
whether he had signed a union card or had any conversations with union representatives.
Liming said, he signed a union card but had not spoken to Scott Stevenson in a month.
Hellstrom stated that Stevenson was just at the facility and was aggressive toward her.

b. Discussion
I credit Liming’s testimony regarding this alleged discussion for a number of reasons.
First, Stevenson credibly testified that on July 10 he went to the facility and told Hellstrom that a
majority of the employees signed authorization cards and requested voluntary recognition.
Thus, Hellstrom’s statement that Stevenson was just there appears to confirm that she spoke
with Liming at a point in time very close to July 10. Second, while Hellstrom generally denied
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that she did not interrogate employees, she was never asked whether she interrogated Liming
about signing a union card or whether he had any discussions with union officials. Thus, she
did not specifically deny this allegation. Third, Hellstrom was present in a conversation she had
with Miller who informed her that Liming did not understand the significance of what signing a
union card really meant. Fourth, Liming’s testimony is consistent with his pre-trial affidavit that
was given on December 13, a period of time closer to the events in question (R Exh. 5). Under
these circumstances, Liming’s testimony has a ring of truth to it and I find that Hellstrom
interrogated him about whether he signed a union card or had any conversations with Union
representatives. Accordingly, I sustain the allegations in paragraph 5(d) of the complaint and
conclude that Respondent violated Section 8(a)(1) of the Act.
2. The Agency status of Theresa Lee
The Board and the Courts have uniformly held that whether someone acts as an agent
under the Act must be determined by common law principles of agency. See, e.g. NLRB v.
Plasterers & Cement Masons Local 90 (Southern III. Builders Ass’n), 606 F.2d 189 (7th Cir.
1979), enforcing 236 NLRB 329 (1978).
Applying these principles to the subject case, the evidence establishes that Lee is a
Principal of the Respondent holding a 46% ownership interest and also holds the title of Vice
President. According to her husband and majority owner, she has attended financial planning
meetings related to the business.
Several employees credibly testified that shortly after the business was sold in
November 2005, Lee was introduced at a meeting that they attended as one of the new owners
of the company.
Significantly, in a Notice to Respondent employees that announced the date for the
representation election, Lee was a signatory along with Hellstrom and urged employees to vote
no and to reject the Union’s attempt to come between management and employees. The
memorandum ended by stating in the meantime if you have any questions relating to the
election or the Company’s position relating to the Union please feel free to contact one of us (R
Exh. 21(c)).
For all of the above reasons, and particularly noting that Lee urged employees to contact
her if they had questions relating to the election or the Company’s position relating to the Union,
I find that as a principal owner and an officer of the corporation, Lee is an agent within the
meaning of section 2(13) of the Act.
3. Allegation concerning Theresa Lee
The General Counsel alleges in paragraph 6 of the complaint that about December 5,
Lee threatened an employee with job loss because the employee supported the Union.
Facts
Employee Donald Combs (no relation to former owner Steve Combs) testified that he
was in the office on or about December 5, and engaged Lee in a conversation. He asked Lee if
she was glad that the Union stuff was over. During the course of there discussion, Combs
informed Lee that he was one of the two yes votes for the Union in the recently held election.
According to Combs, Lee said I would never believe that. Lee then said, “You might as well just
spit in my face, don’t you like your job, do you want to come back in the spring.”
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Lee did not testify and accordingly, the above statements stand unrebutted.
Discussion
Based on my prior finding that Lee is an agent of the Respondent, I find that Lee’s
statements to Combs are threatening in nature, and therefore violate Section 8(a)(1) of the Act.
Watts Electric Corp., 323 NLRB 734 (1997).
C. The 8(a)(1) and (3) Allegations
In Wright Line, 251 NLRB 1083 (1980), enfd, 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), the Board announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer motivation.
First, the General Counsel must make a prima facie showing sufficient to support the inference
that protected conduct was a “motivating factor” in the employer decision. On such a showing,
the burden shifts to the employer to demonstrate that the same action would have taken place
even in the absence of the protected conduct. The United States Supreme Court approved and
adopted the Board’s Wright Line test in NLRB v. Transportation Management Corp., 462 U.S.
393, 399-403 (1993). In Manno Electric, 321 NLRB 278 fn. 12 (1996), the Board restated the
test as follows. The General Counsel has the burden to persuade that antiunion sentiment was
a substantial or motivating factor in the challenged employer decision. The burden of
persuasion then shifts to the employer to prove its affirmative defense that it would have taken
the same action even if the employee had not engaged in protected activity.
1. The Positions of the Parties
The General Counsel alleges in paragraph 7 of the complaint that Brown and Liming
were laid off on July 17 due to there vigorous pursuit of union activities. In this regard, the
General Counsel argues that the Respondent knew that both of these individuals were actively
engaged in the Union organizing campaign and initiated the layoff to rid themselves of these two
employees. Additionally, the General Counsel asserts that the Respondent advertised for
positions and hired new employees after the layoff that both Brown and Liming were qualified
for and could have performed. Lastly, the General Counsel contends that employees who
signed union authorization cards had there work hours reduced while other employees who did
not sign cards received an increase in work hours after the layoff. In summary, the General
Counsel argues that the reasons for the layoffs of Brown and Liming were pretextual to mask
the true reasons that they were separated from the Respondent.
The Respondent counters that the evidence supports there affirmative defense that they
were bleeding red ink, primarily because the Union convinced local area general contractors not
to do business with them due to the Respondent’s refusal to voluntary recognize the Union, and
it was necessary for the Respondent to conduct a reduction in force to help offset there
monetary loses. In this regard, the Respondent evaluated the strengths and weaknesses of its
employees and analyzed what positions were revenue producing before deciding to let go six
employees including the two discriminatees.4 With respect to some employees receiving fewer

4 The other four employees that were laid off included laborers Kyle Combs, Pablo
Gonzalez, and Tim B. Muterspaw, and truck driver Mike Fosnaugh. The layoff of these
individuals was effectuated by seniority as the reduced workload impacted these positions and
none of the positions were substantial revenue producers. As she did for Brown and Liming,
Hellstrom prepared lay-off justifications for these employees (R Exh. 10).
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hours after the layoff, that was the result of a reduced workload in certain portions of the
business and the Respondent points to the fact that a number of employees who signed union
authorization cards did receive an increase in work hours. Lastly, the Respondent argues that
while it advertised for positions after the layoff, it filled these positions with less costly temporary
employees and some of the positions required skills and experience that Brown and Liming did
not possess. In summary, the Respondent contends that the layoff was necessitated by its
precarious financial position and was unrelated to the union activities of Brown and Liming.
2. The Layoff of Paul Brown
a. Facts
Brown was a long term employee of the predecessor employer having worked
approximately 18 years and continued as an employee for the Respondent after the sale of the
business in November 2005. During his tenure, he served as a laborer, bobcat operator, and
grinder and more recently as a member of a hydro seeding crew. Brown served as the operator
of the crew and was responsible for the spraying of a hydro seed mixture to assist in fertilization.
The other member of Brown’s crew was employee Doug Leslie who served as the driver of the
hydro seed trailer.
In April 2006, Brown met Stevenson and talked about the benefits of the Union and what
it could do for the employees of the Respondent. Brown visited with his fellow employees at
there homes and passed out union authorization cards to a number of employees. After the
employees signed the cards, Brown returned them to Stevenson.
In May 2006, Brown talked to Hellstrom at the water cooler about the Union and
expressed his reasons why it would be beneficial for both the Employer and its employees.
Hellstrom informed Brown that in her opinion a Union would not be in the best interests of the
Employer and she was opposed to the concept as it would interfere with her ability to manage
the company.
In June 2006, Brown again talked to Hellstrom about the Union and why it would be
helpful in obtaining additional work including prevailing rate jobs. Once again, Hellstrom
expressed her reasons for not wanting a union at the Respondent. After this conversation,
Brown testified that his work hours were reduced while other employees experienced an
increase in there hours of work.
Brown acknowledged that he had problems in organizing and completing the paperwork
for each job that he worked on and this continued after Hellstrom repeatedly reminded him of
the requirement. As a result, Leslie took over the responsibility and prepared the paper work
that was submitted to the office to support the hours they worked on each respective job.
Brown also testified that while he and Leslie were working at the Versailles Waste Water
Treatment Plant on or about June 14, they created deep ruts in adjacent land owned by a
farmer and it was necessary for him to return to the field along with other employees to repair
the damage. He also acknowledged that he forgot to take a measuring wheel on the return trip
and measure the job as he was instructed to do by Hellstrom. Lastly, Brown admitted that
Hellstrom observed him lying down on the York Commons job on July 7 but he asserts that this
is part of the job when waiting for a laborer to provide him with additional pieces of sod to be
laid.
On July 17, Brown was called into the office by Hellstrom and was told that he was going
to be laid off for lack of work along with five other employees.
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Brown had never been laid off during the summer before and after talking to other
employees after the layoff, he learned that several employees were quite busy including two
members of the other hydro seeding crew. Brown returned to the office after his layoff to inquire
of Hellstrom if there was any work available since he had been informed by fellow employees
that the Respondent had recently hired a temporary truck driver. Hellstrom instructed him to
complete an application but Brown declined to do so.
In February and March 2007, Brown observed a number of advertisements in the local
newspaper for positions at the Respondent that he believed he was qualified for (GC Exh. 2, 3,
4, and 11). However, he did not file applications for any of the positions.
b. Discussion
Hellstrom credibly testified that due to the dire financial condition of the Respondent,
primarily due to the Union putting pressure on local general contractors not to hire or renew
contracts with the Respondent, she was forced to consider the drastic measure of a reduction in
force (R Exh. 7).5 After consulting with co-owner Mark Lee and former owner Combs, it was
decided to concentrate on positions that were not major revenue producers and to evaluate
employees based on whether they had the flexibility to perform other tasks to make the
Respondent more efficient in face of there declining revenues and loss of net income. In
addition, Hellstrom compiled in late June 2006 a lay-off justification outline for the employees
under consideration including performance deficiencies that she observed with specific
employees (R Exh. 10). In regard to Brown, she compared his productivity to the other hydro
seed crew and concluded that Brown and Leslie took longer to perform similarly situated jobs.
Likewise, Hellstrom evaluated recent problems with Brown’s performance including his
responsibility for creating deep ruts on the Versailles job in a farmer’s adjacent field that
required additional expense to fix in addition to driving several hours to repair the damage.
Hellstrom also considered that Brown failed to bring a measuring wheel to measure the job
while they were repairing the damage as he was instructed to do. Hellstrom further considered
Brown’s long term problem in not submitting proper paperwork which necessitated additional
training and ultimately Leslie maintaining and submitting Brown’s paperwork. Lastly, Hellstrom
noted the complaint of a customer for the York Commons job, in which she observed Brown
lying down on the job for approximately one hour, that it was one of the worst trimming jobs he
had seen and several pieces of sod were double stacked.
On July 17, Hellstrom informed Brown that he would be laid off for lack of work along
with five other employees. Hellstrom admitted that she did not inform Brown during there
discussion that performance issues were also considered when deciding which employees
would be selected for layoff.
There is no question that Brown was one of the leading union adherents who distributed
union authorization cards to employees and made known his union sympathies to Hellstrom.
Likewise, it is apparent that the Respondent was opposed to having a Union at the facility and

5 The exhibit shows a breakdown of the net income for each month during 2006. It confirms
that the Respondent suffered substantial net income declines in the first six months of the year
that continued throughout the second portion of the year. Hellstrom credibly testified that she is
able to estimate business six months in advance and knew due to general contractors in the
area not hiring the Respondent that business would continue to decline in the second half of the
year.
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Hellstrom expressed this sentiment openly both orally and in writing.
I find that the decision to conduct the layoff was made in advance of Stevenson meeting
with Hellstrom on July 10, and apprising her that a majority of the employees had signed union
authorization cards which prompted his request that Hellstrom voluntarily recognize the Union.
While it is apparent that a number of employees lost hours of work after the layoff, this is an end
product of a reduced work load in certain areas of the business rather then a penalty for
supporting the Union. In this regard, the evidence shows that employees Donald Combs, David
Dodson and Justin Pemberton6 all signed union authorization cards but they were not laid off on
July 17, and their work hours increased after the layoff (R Exh. 23).
It is also significant that Guthrie, who suffered a loss of work hours with the reduction of
the commercial landscaping portion of the business, testified that the loss of prevailing wage
jobs and the Union putting pressure on local general contractors not to renew business with the
Respondent was what precipitated the layoff. Likewise, Guthrie testified that prior to the layoff
Hellstrom complained to him about Brown’s lack of productivity and his inability to fill out
paperwork for the jobs he performed. Guthrie was of the opinion that those were the primary
reasons that Brown was selected for layoff. It is noted that Guthrie signed a union authorization
card and expressed his opinion to Hellstrom as to why a union would be beneficial at the
Respondent. Despite his advocacy for a Union, he was not laid off and left the Respondent
voluntarily in September 2006, due to having his hours of work reduced.
For all of the above reasons, I find that Brown was not laid off because of his union
activities but rather because of a business necessitated layoff that was carefully planned,
considered and effectuated based on non discriminatory criteria. Therefore, I find that the
Respondent did not violate Section 8(a)(1) and (3) of the Act when it laid off Brown on July 17.

3. The layoff of Matthew Liming
a. Facts
Liming commenced work with the predecessor employer in 2001 and continued to be
employed with the Respondent after it purchased the business. He principally worked as a
mechanic and also drove a truck when making deliveries to customers.
Liming learned about the Union when Stevenson visited one of the jobsites in March
2006, and signed a union authorization card on July 8. He spoke with other employees during
May and June 2006 about the Union and gave an authorization card to his supervisor Miller.
On March 6, Hellstrom approved a raise for Liming that increased his wages from
$13.75 to $16.50 per hour (R Exh. 5).
On July 11, Hellstrom approached Liming in the shop and asked him whether he had
signed a union card or had any conversations with union representatives. Liming replied that he
signed a union card but had not talked to Stevenson in a month. Hellstrom said that Stevenson
was just there and that he was aggressive toward her.

On July 17, Liming returned home after his shift. Hellstrom called him on the telephone

6 Dodson and Pemberton informed Hellstrom that they had signed union authorization
cards.
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and requested that he return to the shop as there was something important she needed to
discuss with him. Liming returned to the shop and went to Hellstrom’s office. Hellstrom
informed Liming that because work was slow he was going to be laid off. Liming strenuously
objected to the fact that work was slow but told Hellstrom you are going to do whatever you
want and let’s get this over with.
After the layoff, Liming observed advertisements in the local newspaper for a number of
jobs at the Respondent, some of which he testified he was qualified for. However, he
acknowledged that he did not apply for any of the positions.
Prior to the election that was held on November 21, the Union and the Respondent
agreed that Liming had no expectancy of recall from the layoff and, therefore, was ineligible to
vote in the election (R Exh. 1).
b. Discussion
As Hellstrom did for all of the other employees that were laid off on July 17, she
compiled a layoff justification for Liming in late June 2006 (R Exh. 10). Based on the downward
trend in business both at the time of the layoff and forecasted for the rest of the year, Hellstrom
determined that no major maintenance projects were planned and therefore, she only required a
total of two mechanics. As it concerned Liming, Hellstrom was aware that Miller had talked to
him on June 22 concerning productivity issues relative to a lack of scheduled maintenance
being completed, not keeping the shop area clean and not following verbal instructions relative
to repairs. Likewise, Hellstrom had also met with Liming on that same day to discuss his
excessive use of the Employer’s cell phone for personal calls. In that regard, for the time period
from May 15 through June 14, Liming’s business cell phone had 314 minutes of usage, with the
majority of the calls made during non-business hours and to non-business telephone numbers.
Liming was issued a “memo of understanding” for this infraction (R Exh. 4).
Hellstrom additionally relied on the fact that Liming worked in a non revenue generating
position and the repair requirements could be adequately handled by the other two mechanics.7
Hellstrom was also concerned with Liming’s grooming and disheveled appearance that did not
present a good public image when he was making deliveries to customers.8
Miller testified that Liming continued to have disagreements with Hellstrom over his pay
and vacation entitlement. Miller stated that Hellstrom informed him that Liming was laid off
because of a lack of work, poor job performance and his disheveled appearance. Miller further
testified that he had become good friends with Liming over the years and Liming never told him
that he thought the layoff was related to his union activities. Rather, he told Miller that the layoff
was due to not seeing eye to eye with Hellstrom.
While not dispositive, I note that the Union did not file objections to the conduct of the
election nor did they file the unfair labor practice charges on behalf of Brown or Liming alleging
that the layoff was the result of their union activities. Likewise, it is significant to note that the
Union stipulated with the Employer that Liming had no expectancy of recall after the layoff, and
therefore was ineligible to vote in the election. That stipulation occurred prior to the filing of the

7 Miller and employee Darell Hohn also performed maintenance functions.
8 Guthrie testified that he informed Hellstrom that Liming frequently appeared at work with
alcohol on his breath and in his opinion was not competent to fix brakes on the Respondent’s
equipment.
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subject unfair labor practice charge by Liming. Lastly, I note that Liming testified that he had no
intention of filing the subject unfair labor practice charge until he was approached by Brown who
suggested that he do so.
Based on the forgoing, I find that the layoff of Liming was based on legitimate non
discriminatory reasons unrelated to his union activities. Therefore, I find that the Respondent
did not engage in violations of Section 8(a)(1) and (3) of the Act.9
4. Newspaper Advertisements and the Hiring of Employees
There is no dispute that the Respondent advertised after the layoff for a number of
positions that were to be filled on a temporary basis with the exception of one permanent
position.
It must be noted that after the layoff of six employees on July 17, additional attrition
occurred with the voluntary resignations of Leslie, Guthrie and George Kirby in August and
September 2006. Additionally, Hohn was injured at work and went on worker’s compensation
and Combs broke his arm and was unable to work as a hydro seeder. Accordingly, the
Respondent decided to advertise for temporary help commencing in December 2006 and
placed three additional advertisements in late February and early March 2007. The Respondent
determined to use temporary agencies or word of mouth to fill these positions as the costs were
considerably less then the wages that Brown and Liming earned at the time of there layoff.
Most of the individuals hired pursuant to these advertisements worked short durations including
the five individuals that worked for one week as snow plow drivers. This is consistent with the
Respondent’s position that it anticipated it would continue to lose money during the first quarter
of 2007, and is confirmed by the actual figures that were introduced at the hearing showing a
loss of net income in excess of $90,000 (R Exh. 8). In any event, the Respondent did not
consider Brown or Liming for those positions because neither of them responded to the
advertisements and the Respondent could not afford to pay them there former wages and
benefits.
As it concerns the permanent employee, Clark Widenheft was hired in September 2006
for a newly created position to increase business in production due to his heavy equipment
background and sewer and pipe excavation experience. He was not hired to do mechanical
work, operate the hydro seeding equipment or drive a truck, job experience that both Brown and
Liming possessed. Likewise, neither Brown nor Liming had experience equivalent to Widenheft
and were not qualified for the position. Additionally, Widenheft was hired to help fill the void of
Hohn being off work due to a work related injury. Unfortunately, Widenheft did not work out
based on expectations and he left Respondent’s employ in March 2007.
Based on the forgoing, and particularly noting that neither Brown nor Liming applied for
any of the advertised positions, I am of the opinion that the Respondent legitimately did not
consider them for the advertised positions in addition to Widenheft’s position.

9 Accordingly, I find that the General Counsel did not establish that antiunion sentiment was
a substantial or motivating factor in the layoff of Brown or Liming. If others disagree, I would still
find that the Respondent would have taken the same action concerning both employees even if
they not engaged in protected activity.
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Conclusions of Law
1. Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act when it threatened employees with
plant closure if the Union was voted in as their collective-bargaining representative,
when it interrogated an employee about the employee’s union activities and by
threatening an employee with job loss because the employee supported the Union.
4. Respondent did not violate Section 8(a)(1) of the Act when it informed employees
that it would not permit a union and that it would be futile for them to select the Union
as their bargaining representative.
5. Respondent did not violate Section 8(a)(1) and (3) of the Act when it laid off
employees Paul Brown and Matthew Liming on July 17, 2006.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended10
ORDER
The Respondent, Biosource Landscaping Services, LLC, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with plant closure if the Union was voted in as their
collective-bargaining representative.
(b) Interrogating an employee about the employee’s union activities.
(c) Threatening an employee with job loss because the employee supported the
Union.
(d) In any other manner interfering with, restraining, or coercing employees in the
exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its facility in Xenia, Ohio,
copies of the attached notice marked “Appendix.”11 Copies of the notice, on
forms provided by the Regional Director for Region 9, after being signed by

10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
11 If this 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 States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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the Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent
at any time since June 12, 2006.
(b) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. July 13, 2007
____________________
Bruce D. Rosenstein
Administrative Law Judge
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Xenia, OH
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT threaten employees with plant closure if the Union was voted in as their
collective-bargaining representative.
WE WILL NOT interrogate an employee about the employee’s union activities.
WE WILL NOT threaten an employee with job loss because the employee supported the Union.
WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the
exercise of their Section 7 rights protected by the Act.
Biosource Landscaping Services, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
550 Main Street, Federal Office Building, Room 3003
Cincinnati, Ohio 45202-3271
Hours: 8:30 a.m. to 5 p.m.
513-684-3686.
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 ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 513-684-3750.
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