Stokely Foods, Inc.Download PDFNational Labor Relations Board - Board DecisionsApr 3, 195193 N.L.R.B. 1144 (N.L.R.B. 1951) Copy Citation 1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD STOKELY FOODS, INC. and AMERICAN FEDERATION OF LABOR. Case No. 17-CA-121. April 3, 1951 Supplemental Decision On October 25, 1950, the National Labor Relations Board, herein called the Board,' issued a Decision and Order in this case,2 in which it found that Stokely Foods, Inc., herein called the Respondent, had engaged in and was engaging in certain unfair labor practices affect- ing commerce, and ordered the Respondent to cease and desist there- from, and take certain affirmative remedial action.3 Thereafter, the Board, having determined that further information regarding the commerce facts in this case would clarify the record in this respect, issued an order on December 13, 1950, reopening the record, remand- ing the proceeding to its Regional Director for the Seventeenth Re- gion for the purpose of conducting a hearing to adduce additional evidence concerning the commerce of the Respondent's Lawrence, Kansas, plant, and authorizing the Regional Director to issue a notice of such further hearing. The Regional Director issued a notice of hearing on December 18, 1950, and a hearing was held on January 3 and 4, 1951, before Trial Examiner Robert E. Mullin, who thereafter issued his Supplemental Intermediate Report, attached hereto, in this proceeding making certain findings of fact 4 and conclusions of law concerning the business of the Respondent. Subsequently, the Re- spondent filed exceptions to the Supplemental Intermediate Report. The Board has reviewed the rulings made by the Trial Examiner in connection with this proceeding and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board ' Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three -member panel [Members Houston, Reynolds, and Murdock]. 2 91 NLRB 1267. ' In its Decision and Order the Board found that the Respondent 's Lawrence , Kansas, plant was an integral part of the Respondent 's multistate and international business structure , and adopted the conclusion by the Trial Examiner that the unfair labor practices committed by the Respondent , occurring in connection with the operations of the Lawrence , Kansas, plant , affect interstate commerce. 4 The entire evidence in this supplemental proceeding consists of a stipulation between the General Counsel and the Respondent concerning the commerce facts of the Respondent's Lawrence , Kansas , plant. The Respondent excepts to the finding by the Trial Examiner that the Respondent had entered into the foregoing stipulation with the General Counsel. The record , however , reveals that a document entitled "Stipulation of Evidence" was signed by the Respondent's counsel and counsel for the General Counsel in which it was stipulated that if the records of the Respondent and the testimony of the Respondent's secretary had been offered and received in evidence they would show the specific commerce facts detailed by the Trial Examiner in his Supplemental Intermediate Report. The Respondent also excepts to the Trial Examiner ' s order receiving this stipulation in evidence as being contrary , to law We are satisfied that the information set forth in the stipulation constitutes competent probative evidence and was properly received 93 NLRB No. 198. STOKELY FOODS, INC. 1145 has considered the Supplemental Intermediate Report, the excep- tions, and the entire record in the case, and hereby adopts the find- ings and conclusion of the Trial Examiner. In so doing we reaffirm the finding in our Decision and Order, heretofore issued in this pro- ceeding, that the unfair labor practices committed by the Respondent affect interstate commerce within the meaning of the Act. We- also find that the Respondent's Lawrence, Kansas, plant, because' of its integration with the Respondent's multistate and international busi- ness operations, is engaged in interstate commerce within the mean- ing of the Act; and we further find that the Respondent's opera- tions at its Lawrence, Kansas, plant constitute engaging in interstate commerce within the meaning of the Act, in view of the substan- tial shipment of goods to and from this plant across State lines as set forth in the Supplemental Intermediate Report. Supplemental Intermediate Report Mr. Martin Sacks, for the General Counsel. Messrs. Frederic D. Anderson and George J. Zazas, of Barnes, Hickam, Pantzer & Boyd, of Indianapolis, Ind., for the Respondent. , A hearing was held in the above-entitled case before the undersigned at Lawrence, Kansas, on March 28, 29, and 30, 1950, and an Intermediate Report and Recommended Order thereon was issued on June 1, 1950. On October 25, 1950, the Board issued its Decision and Order. On December 13, 1950, the Board issued an order reopening the record and remanding the proceeding to the Regional Director for the Seventeenth Region for further hearing to adduce "additional evidence with respect to the commerce of the Respondent's Kansas plant here involved." Thereafter, pursuant to notice issued and served upon the parties by the Regional Director, a hearing was held on January 3 and 4, 1951, at Indianapolis, Indiana, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented at the hearing. At its outset the Respondent moved to dissolve the hearing and to rescind the order pursuant to which it was being held. In support of this motion the Respondent argued in substance, that: (1) The Board was without authority to order the hearing under either the Act or its Rules and Regulations; (2) since the Respondent had petitioned the United States Court of Appeals for the Fifth Circuit to review the Board's Decision and Order the Board was under an obligation to file promptly with the clerk of that Court the record in the original proceeding and could not order a further hearing which would delay such filing; and (3) the Board's order of December 13, 1950, violated Section 5 (a) of the Administrative Procedure Act. These motions were denied by the undersigned on the ground ' that the Board was authorized under 'Section 10 (d) of the Act and Section 203.49 of its Rules and Regulations to order the hearing and that neither the order nor the notice of hearing vio- lated Section 5 (a) of the Administrative Procedure Act. In the meantime, the Respondent had filed with the Board a motion to rescind the order reopening the record. The Trial Examiner therefore, after his ruling noted in the paragraph above, recessed the hearing until such time 1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as the Board passed on the Respondent ' s motion then pending before it. On the afternoon of January 3, the Board denied this motion. The hearing be- fore the undersigned was reconvened on the following day. At that time the Respondent filed with the Trial Examiner petitions to revoke subpenas duces tecwm and ad testificanduon, which had been served upon C. A. Nugent, sec- retary of the Respondent , by the General Counsel. After argument was had by both parties , the undersigned denied the petitions to revoke . When counsel for the Respondent , speaking as counsel for Nugent , then stated that the secretary of the corporation would not obey the subpenas , the General Counsel moved for an adjournment sine die in order to seek enforcement of the subpenas in an appropriate Federal District Court This motion was granted and the hearing was adjourned accordingly. Thereafter the Respondent , without waiving any of its objections previously raised to the authority of the Board to reopen the record , executed a joint stipulation with the General Counsel relating to the commerce facts of the Respondent 's plant in Lawrence, Kansas On February 16, 1951, the General Counsel filed with the Trial Examiner a motion to receive this stipulation in evidence . On the same day, the undersigned notified the parties , by tele- gram, that objections to this motion might be made at any time on or before February 21. On the latter date the Respondent filed objections to the General Counsel 's motion. In these objections , however , the Respondent did not ask that any testimony be taken in formal hearing . On the contrary, the Respondent objected to the receipt of any evidence of any kind and re- asserted substantially the same arguments advanced at the outset of the hearing on January 3 in its original attack on the validity of the Board's order reopening the record . In accordance with his previous rulings on these issues at the hearing , by order dated February 22, the undersigned over- ruled the Respondent ' s objections , received the stipulation in evidence, and closed the hearing. I. SUPPLEMENTARY FINDINGS OF FACT ON THE BUSINESS OF THE RESPONDENT In addition to the findings of fact contained in Section I of the Intermediate Report and Recommended Order issued in the subject case on June 1, 1950, the undersigned finds, on the basis of the aforesaid stipulation executed by the General Counsel and the Respondent, that : During each of the fiscal years ending May 31, 1948, May 31, 1949, and May 31, 1950, Stokely Foods, Inc., purchased raw materials of a value in excess of $250,000 which were shipped to its plant in Lawrence, Kansas, from places out- side the State of Kansas; and, further, that it shipped from this same plant to places outside the State of Kansas food products processed at the Lawrence plant of a value in excess of $500,000. II CONCLUSION From the foregoing facts, the undersigned concludes and finds that, at all times material, the Respondent has been engaged in commerce within the mean- ing of the Act at its plant in Lawrence, Kansas. 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