Foreman & Clark, Inc.

National Labor Relations Board - Board Decisions

Mar 11, 1952

98 N.L.R.B. 530 (N.L.R.B. 1952)

530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the fact that employees within the stores intermingle and move
from retailing one type of merchandise to another, there is no reason
to question the propriety of the association of such employers 6
Accordingly, we conclude that the unit requested by the Petitioner
is too limited in scope, and we shall dismiss the present petition.
Order
IT IS HEREBY ORDERED that the petition herein be, and it hereby is,
dismissed.
° See Mann County Employers Council, affiliated with California Association of Emn-
ployers, et al., 87 NLRB 296.
FOREMAN & CLARK, INC. artd LOCAL 297, AMALGAMATED CLOTHING
WORKERS OF AMERICA, CIO, PETITIONER . Case No. d1-RC-1836.
March 11, 1952
Supplemental Decision and Denial of Motion to Stay Direction of
Election , to Vacate Supplemental Decision , for Reconsidera-
tion or Rehearing, and for Oral Argument
On August 31, 1951, the Board issued a Decision and Order 1 dis-
missing the petition in the above-entitled case. On November 9, 1951,
the Petitioner filed a motion for reconsideration of the Board Deci-
sion and Order dismissing its petition. Thereafter, on January 16,
1952, the Board issued its Supplemental Decision and Direction of
Election 2 in which the Board granted the Petitioner's motion for
reconsideration and found, contrary to the majority in the original
decision,3 that the unit sought was appropriate. The Employer, on
February 4, 1952, filed a motion to stay direction of election, to vacate
the supplemental decision and for reconsideration or rehearing, and
for oral argument.
In its motion the Employer attacks the supplemental decision in
the following respects :
(1) The unit found to be appropriate was so found solely on the
basis of extent of organization.
(2) The Board's findings, that the employees involved are a highly
skilled, distinct, and homogeneous departmental group, are erroneous.
(3) The reconsideration of the original decision by the Board was
in violation of the Administrative Procedure Act.
2 95 NLRB 1504.
2 97 NLRB 1080.
8 Decided by a three-member panel pursuant to Section 3 (b) of the Act, Member
Murdock dissenting.
98 NLRB No. 91.
FOREMAN & CLARK, INC. 531
(4) The supplemental decision included certain misstatements of
fact.
The first two points raised by the Employer were carefully con-
sidered by the Board at the time it rendered the supplemental decision.
No persuasive reason having been given by the Employer to warrant
a reversal of our previous findings on these points , we hereby reaffirm
them. With respect to the third and fourth points , we find as follows :
Although the Employer had the opportunity to, and in fact did,
answer the Petitioner 's motion for reconsideration , it limited its
arguments to the merits of the Petitioner 's contentions . At that time,
it raised no objection to the Board 's entertainment or consideration
of the motion for reconsideration as improper under the Adminis-
trative Procedure Act. For the first time , the Employer now contends
that, as the Board 's Rules and Regulations make no provision for the
reconsideration of a decision , the reconsideration of the original de-
cision in this case violated Section 3 (a) (2) of the Administrative
Procedure Act.
Section 3 ( a) (2) of the Administrative Procedure Act reads in
relevant part :
Every agency shall separately state and currently publish in the
Federal Register . . . ( 2) Statements of the general course
and method by which its functions are channeled and determined,
including the nature and requirements of all formal or informal
procedures available as well as forms and instructions as to the
scope and contents of all papers , reports or examinations; .. .
No person shall in any manner be required to resort to organi-
zation or procedure not so published [emphasis supplied].
The purpose of Section 3 (a) (2) is to protect a party to any
proceeding from being prejudiced by reason of his failure to resort
to unpublished agency procedure .4 A motion for reconsideration is
not the type of procedure which falls within the contemplation of
Section 3 (a). Unlike pleadings and motions of other types , it is not
a procedure required or imposed by the Board as one of the necessary
steps to be undertaken by a party in the course of a Board proceeding
and which , if not pursued , will adversely affect the party 's position in
the proceeding . As the motion for reconsideration of our decision
was not a procedure to which the Employer herein or any other party
was required to resort , we find no merit in the Employer's contention
that the Board, by entertaining the motion for reconsideration or by
the actual reconsideration , violated the Administrative Procedure Act
because of the absence of a published rule . Moreover , as the Em-
ployer was given notice of the filing of the motion , and an adequate
' Senate Document No. 248 , 79th Cong., pp. 256, 314 and 356.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opportunity to reply, it was in no way prejudiced by the Board's
action.
The Employer contends that the Board's supplemental decision is
based upon misstatements of fact. A reexamination of the record
reveals that footnote 4 of the Board's supplemental Decision and
Direction of Election was partially inaccurate. This footnote reads
as follows :
The incidents noted in the record almost entirely concern relief
selling done by the lesser skilled employees or janitor work done
by individuals who also do the pressing in the tailor shop. In
none of these instances does the employee perform a majority of
his or her work outside the department.
It appears, however, that V. Harvey, a presser-janitor at the Em-
ployer's Huntington Park store, devotes one-third of his time to the
tailor shop and the balance to janitorial work. The Employer in
its brief lists two other employees whom it claims work more than
half their time outside the alteration shop. However, the record
reveals that neither of these two employees is presently working for
the Employer, although the record does reveal that Butler Reilly,
employed at the Wilshire store as replacement for one of them, might
now be allocating 25 percent of his time to pressing and 75 percent to
janitorial work. Thus, one and possibly two employees who work in
the alteration department spend a majority of their time doing jani-
torial work. This fact, in our opinion does not warrant a reversal of
our Supplemental Decision and Direction of Election.'
Order
For the foregoing reasons, IT IS HEREBY ORDERED that the Employer's
motions be, and they hereby are, denied e
MEMBER HOUSTON took no part in the consideration of the above
Supplemental Decision and Denial of Motion to Stay Direction of
Election, to Vacate Supplemental Decision, for Reconsideration or
Hearing, and for Oral Argument.
5 No problem is raised concerning the eligibility to vote of any employee in the unit
performing 50 percent or more of his working hours outside the alteration shop. The
Board has held that employees , even though they spend less than 50 percent of their time
at work included in the unit, are eligible to vote provided only that they are regularly
employed for sufficient periods of time to demonstrate that they have a substantial interest
in the wages , hours, and working conditions of the employees in the appropriate unit.
The Ocala Star Banner, 87 NLRB 384. There is no question concerning the eligibility
of the shop foremen and tailor shop foremen to vote as they are included in the unit
pursuant to the agreement of the parties that they are not supervisors.
6 The Employer's request for oral argument and rehearing are hereby denied as the
record and the briefs, in our opinion , adequately set forth the issues , the facts material
thereto, and the positions of the parties.