Ben Franklin Stores

BEN FRANKIN STORES 779 LOUIE W. BURESH AND EDITH I. BURESFI , D/B/A BEN FRANKLIN STORES and RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL UNION No. Q63, AFL, PETITIONER . Case No. 33-RC-234. May 22, 1951 i Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Charles Y. Latimer, hearing officer.' The hearing officer's rulings made at the hearing are free from prejudicial error and "are hereby affirmed.2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Reynolds, and Styles]. Upon the entire record in this case, the Board finds : The Employer is the owner and operator of two variety stores in Las Cruces, New Mexico. During the past year, the Employer pur- chased merchandise for the two stores in the amount of about $45,700, of which about $22,821 worth was purchased from Butler Brothers, and obtained from their warehouse at Dallas, Texas. The remainder of the merchandise was purchased from various wholesalers through- out the country. During the same period, the employer's sales amounted to about $71,500, all of which were made locally. The Employer and Butler Brothers, a corporation engaged in the wholesale distribution of merchandise to retail stores,3 entered into a franchise agreement on November 14, 1947, for store No. 1, and on June 1, 1950, for store No. 2, each agreement to be effective for a period of 5 years, absent 60 days' notice of termination by either party prior to the end of any calendar year of the 5-year term. The franchise agreements make available to the Employer, in return for the payment of a fee, a discount on purchases from Butler Brothers, the use of the name "Ben Franklin Stores," the use of a system of retail operating and promotional services,4 and personal assistance in the application of the system to the Employer's stores. 1 After the hearing, the Employer and the Intervenor filed a motion for oral argument. As the issues and the positions of the parties are adequately presented in the record, including the brief filed jointly by the Employer and the Intervenor, the motion is denied. 2 The Employer's name appears as amended at the hearing . Butler Brothers was permitted to intervene at the hearing as amicus curiae. 3In addition , Butler Brothers owns and operates about 170 retail stores located throughout the country. 4 These services include an operating manual , merchandise check lists, a publication containing material covering sales promotion , stock display , and store management, catalogues and factory listings of current items of merchandise , a publication containing current material relating to the instruction of sales personnel , the "Ben Franklin News," which contains local information concerning merchandise and promotions , an Accounting Manual and control forms, Sales Plans consisting of promotional advertising programs and circulars , and an "S M S. Plan" consisting of introductory shipments of "best seller" items of merchandise. A separate charge is made for forms , supplies , merchandise, and other material furnished in connection with the Accounting Manual, the Sales Plans, and the S. M . S. Plan. 94 NLRB No. 112 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record discloses that the Employer, upon its request, has been provided with the. assistance of a representative of Butler Brothers in arranging merchandise for display, that an auditor supplied.by Butler Brothers has visited the store for the purpose of auditing the books, that a representative of Butler Brothers assisted the Em- ployer in negotiating the lease for store No. 2 which was opened in November 1950, and that the Employer has requested Butler Brothers to supply an expert to assist the manager of store No. 2 in ordering and displaying merchandise. The record discloses, however, that Butler Brothers has no control over the personnel or labor policies of the Employer, has no financial interest in the stores, has no requirement that the Employer maintain any minimum stock inventory, and that the merchandise sold by the Employer does not carry a "Ben Franklin" label. In addition, the Employer is not required to purchase any merchandise from Butler Brothers and does purchase a substantial quantity of merchandise from competitors of Butler Brothers. In view of all these circumstances, we find that the Employer's operations are not so related to those of Butler Brothers and the degree of control exercised by Butler Brothers is ,not so extensive as to war- rant the assertion of jurisdiction over the Employer as an integral part of a multistate enterprise.' As the record discloses that the Employer's operations fail to meet any of the other recently an- nounced standards for the assertion of jurisdiction, we shall dismiss the petition. Order IT IS ORDERED that the petition be, and it hereby is, dismissed. 'Cf. Baxter Bros., 91 NLRB 1480; see Pacific Dental Laboratory of San Francisco, 91 NLRB 1140. CHERRY AND WEBB COMPANY, PROVIDENCE and RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, CIO, PETITIONER. Case No. 1-RC- 1923. May 22, 1951 Supplemental Decision and Order On February 5, 1951, pursuant to a Decision and Direction of Election issued herein by the Board,' an election by secret ballot was conducted under the direction and supervision of the Regional Direc- tor for the First Region among the employees in the unit found appropriate in the Board's decision. Upon the completion of the election, a tally of ballots was furnished the parties. The tally 1 93 NLRB 9. 94 NLRB No. 105.