Taormina Co.

National Labor Relations Board - Board Decisions

May 29, 1951

94 N.L.R.B. 884 (N.L.R.B. 1951)

884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Petitioner failed to prove that the exceptions were served
on the Employer in conformity with Section 203.616 of the Board's
Rules and Regulations, or indeed were timely served at all. Thus,
there remains for consideration only the Petitioner's contention that
its failure to effect service in accordance with the Board's require-
ments constituted only a "technical" noncompliance for which, absent
a showing of prejudice to the Employer, the exceptions should not
be dismissed. We reject this contention. The Board in the R d R
News Cognpany case, supra, held without qualification that the serv-
ice requirements set forth in the Rules and Regulations involved
fundamental procedures essential to fairness. Consistent with that
holding, we regard as irrelevant the fact that the Employer may or
may not have been prejudiced by the Petitioner's noncompliance with
these requirements. Accordingly, we hereby adopt the hearing offi-
cer's recommendation and shall dismiss the exceptions and the
petition.
Order
IT IS HEREBY ORDERED that the petition for investigation and certi-
fication of representatives of employees of Beacon Manufacturing
Company, Swannanoa, North Carolina, filed herein be, and it hereby
is, dismissed.
6 This section is now designated as Section 102 61 in the Board ' s Rules and Regulations
effective March 1, 1951.
E. A. TAORMINA, A. F. TAORMINA, MRS. MADELINE M. TAOR-NrINA,
CHARLES MESSINA AND FRANK CULUCCHIA, CO-PARTNERS, D/B/A
TAORbIINA COMPANY 1 and CITRUS, CANNERY WORKERS AND FOOD
PROCESSORS UNIox 24473, AFL. Case No. 39-C-4-13,9. May 39,
1951
Decision and Order
On January 24, 1951, Trial Examiner Sydney S. Asher, Jr., issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ents filed exceptions to the Intermediate Report and a brief.
The Board 2 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
I The names of the Respondents appear as amended at the hearing
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act,
the Board has delegated its powers in connection with this proceeding to a three-member
panel [Chairman Herzog and Members Houston and Reynolds].
94 NLRB No. 140.
TAORMINA COMPANY 885
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.3
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents, E. A. Taormina, A. F.
Taormina, Mrs. Madeline M. Taormina, Charles Messina and Frank
Culucchia, co-partners, d/b/a Taormina Company, Donna, Texas,
and their agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Citrus, Cannery Work-
ers and Food Processors Union 24473, AFL, as the exclusive repre-
sentative of all production and maintenance employees at the Re-
spondents' Donna, Texas, plant, excluding office and clerical em-
ployees, professional employees, guards, watchmen, and all super-
visors as defined in the Act, with respect to rates of pay, wages,
hours of employment, and other conditions of employment.
(b) In any other manner interfering with the efforts of Citrus,
Cannery Workers and Food Processors Union 24473, AFL, to bar-
gain collectively with the Respondents on behalf of the aforesaid
employees.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with Citrus, Cannery Work-
ers and Food Processors Union 24473, AFL, as the exclusive repre-
sentative of all their aforesaid employees and, if an understanding is
reached-, embody such understanding in a signed agreement.
(b) Post at their Donna, Texas, plant, copies in English and Spanish
translation of the notice attached hereto, marked "Appendix A." 4
Copies of such notice, to- be furnished by the Regional Director for the
3 Unlike the Trial Examiner , however, we do not rely upon the incident that resulted
in the withdrawal of Apodaca from the February 7 negotiation meeting. At that meeting,
the Respondents asked that Apodaca , a member of the Union 's negotiation committee, be
excused because he was not an employee nor a union official and because the negotiations
might reveal secret information that the Respondents would not desire disclosed to an
"outsider", The Union acquiesced in this request , and Apodaca accordingly withdrew.
Under these circumstances and upon the entire record , we do not believe that the
Respondents ' mere request-not adamantly insisted upon by them and readily agreed
to by the Union-imposed an improper limitation upon the employees ' choice of repre-
sentatives in violation of the Act See Shell Oil Co, 93 NLRB 161 Nor do we rely
upon the Trial Examiner ' s remarks with respect to the reasonableness of the Respondents'
insistence upon a performance bond
I In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be inserted in the notice before the words , "A Decision and Order,"
the words "A Decree of the United States Court of Appeals Enforcing."
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sixteenth Region, shall, after being duly signed by the Respondents'
representative, be posted by the Respondents immediately upon receipt
thereof, and maintained by them for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by
the Respondents to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this order, what steps the
Respondents have taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL bargain collectively upon request with CITRUS, CAN-
NERY WORKERS AND FOOD PROCESSORS UNION 24473, AFL, as the
exclusive representative of all employees in the bargaining unit
described herein with respect to rates of pay, wages, hours of
employment, and other conditions of employment, and, if an
understanding is reached, embody such understanding in a signed
agreement. The bargaining unit is:
All production and maintenance employees at our Donna,
Texas, plant, excluding office and clerical employees, profes-
sional employees, guards, watchmen, and all supervisors as
defined in the Act.
WE WILL NOT in any other manner interfere with the efforts of
the above-named union to bargain collectively with us on behalf of
the aforesaid employees.
All our employees are free to become, remain, or refrain from becom-
ing or remaining members of the above-named union or any other labor
organization, except to the extent that this right may be affected by an
agreement in conformity with Section 8 (a) (3) of the Act.
E. A. TAORMINA, A. F. TAORMINA,
Mrs. MADELINE M. TAORMINA,
CHARLES MESSINA and FRANK CULUCCHIA,
co-partners, d/b/a TAORMINA COMPANY,
Employer.
Dated ---------------- By ------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
TAORMINA COMPANY S)i7
Intermediate Report
Joseph A. Jenkins, Esq., for the General Counsel.
Ewers, Cox, Port, Bentsen and Toothaker, by Scott Toothaker, Esq, of McAllen,
Tex., for the Respondents and the Association.
Mr. E. C. DeBaca, of Raymondville, Tex., and Mr. C. C. Turner, of Weslaco,
Tex., for the Union.
Statement of the Case
Upon a charge filed by Citrus, Cannery Workers and Food Processors Union
24473, AFL, herein called the Union, the General Counsel for the National Labor
Relations Board,' by the Regional Director for the Sixteenth Region (Fort Worth,
Texas), issued a complaint dated October 6, 1950, against E. A. Taormina, A. F.
Taormina, Mrs. Madeline M. Taormina, Charles Messina and Frank Culucchia,
copartners, d/b/a Taormina Company,' Donna, Texas, herein called the Respond-
ents. The complaint alleged that the Respondents had engaged in and were
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor
Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the
complaint, the charge, and the notice of hearing were duly served.
With respect to the unfair labor practices, the complaint alleges in substance
that the Respondents, from on or about May 1, 1950, and at all times thereafter,
failed and refused to bargain collectively with the Union, and thereby inter-
fered with, restrained, and coerced their employees in the exercise of rights
guaranteed in Section 7 of the Act. The Respondents filed an answer, denying
that they had engaged in the unfair labor practices alleged.
Pursuant to notice, a hearing was held on October 24, 25, and 26, 1950, at
Edinburg, Texas, before Sydney S. Asher, Jr., the undersigned Trial Examiner,
duly designated by the Chief Trial Examiner. The General Counsel and the
Respondents were represented by counsel, and the Union by its representatives.
All parties participated in the hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues. At the close of the hearing, the General Counsel moved to
conform the pleadings to the proof with respect to names, dates, and other
formal and nonsubstantive matters. The motion was granted without objection.
All parties were afforded an opportunity to present their contentions orally upon
the record, and did so. All parties were granted time after the close of the
hearing to file briefs and/or proposed findings of fact and conclusions of law.
A brief has been received from the Respondents and has been considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
E. A. Taormina, A. F. Taormina, Mrs. Madeline M. Taormina, Charles Messina
and Frank Culucchia are copartners, doing business under the trade name and
style of Taormina Company, by virtue of the laws of the State of Texas. They
are engaged in the business of processing, canning, selling, and distributing vege-
tables and tomatoes, having their principal office and place of business at Donna,
Texas. During the year immediately preceding the hearing herein, the Re-
I The General Counsel and his representative at the hearing are referred to herein as
the General Counsel. The National Labor Relations Board is referred to as the Board.
2 The names of the Respondents appear as amended at the hearing.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondents, in the course and conduct of their business operations, purchased
vegetables in excess of $210,000 in value, all of which were purchased in the
State of Texas. During the same period, the Respondents purchased supplies
consisting of tin cans, wooden crates, corrugated pasteboard cartons, labels, and
similar items valued at approximately $150,000, of which in excess of 34 percent
was shipped to their Donna, Texas, plant from outside the State of Texas
During the same period, the Respondents sold and distributed products in excess
of $750,000 in value, of which approximately $250,000 represented sales to
purchasers outside the State of Texas.
The Respondents admit, and I find, that they are engaged in commerce within
the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Citrus, Cannery Workers and Food Processors Union 24473, AFL, is a labor
organization within the meaning of Section 2 (5) of the Act 8
III THE UNFAIR LABOR FRACTiCEs
A. The Respondents' operati,ons°
The Respondents' business is seasonal The plant operates approximately
9 months a year, from October until July. The peak seasons are usually reached
in June, and in Nover