316 F2d 224 National Labor Relations Board v. Benevento M

316 F.2d 224

NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
Michael BENEVENTO et al., d/b/a M. Benevento Sand & Gravel Company, Respondents.

No. 5849.

United States Court of Appeals First Circuit.

Submitted March 29, 1963.

Decided April 15, 1963.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Allison W. Brown, Jr., Margaret M. Farmer, Attys., National Labor Relations Board, for petitioner.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

WOODBURY, Chief Judge.

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1

On December 29, 1961, we remanded this case to the Board for further proceedings because we felt that there was not sufficient evidence in the record to support the Board's assertion of jurisdiction. See N. L. R. B. v. Benevento, 297 F.2d 873 (C.A.1, 1961). Pursuant to our remand the Board recommitted the case to a trial examiner who, after taking further evidence, filed a supplemental intermediate report wherein, on the facts as found, he concluded that during the year preceding the issuance of the complaint in this case the respondent's "operations affected commerce within the meaning of the Act." The Board affirmed and has again petitioned this court for enforcement of its original order.

2

The respondent has not challenged the findings of fact made by the trial examiner in his supplemental intermediate report and affirmed by the Board in its supplemental decision. We therefore accept the facts found as true. And on them it seems to us clear that the Board's assertion of jurisdiction is well founded, particularly in view of the Per Curiam reversal by the Supreme Court of the United States, N. L. R. B. v. Reliance Fuel Oil Corp., 371 U.S. 224, 83 S.Ct. 312, 9 L.Ed.2d 279 (1963), of N. L. R. B. v. Reliance Fuel Oil Corp., 297 F.2d 94 (C. A.2, 1961), upon which we in part relied in our earlier opinion.

3

The Board in its original order found the respondent guilty of violations of § 8(a) (1) and (5) of the Act. We have reviewed the original record and briefs and, according due weight to the trial examiner's and the Board's resolutions of questions of credibility, it is quite apparent to us that there is substantial evidence in the record considered as a whole to support the Board's findings of the above violations.

4

A decree will be entered enforcing the order of the Board.