Ben Franklin Stores

National Labor Relations Board - Board Decisions

May 22, 1951

94 N.L.R.B. 779 (N.L.R.B. 1951)

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.