Foreman & Clark, Inc.

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.