Stokely Foods, Inc.

National Labor Relations Board - Board Decisions

Apr 3, 1951

93 N.L.R.B. 1144 (N.L.R.B. 1951)

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.