B & E Supermart

National Labor Relations Board - Board DecisionsFeb 10, 1972

195 N.L.R.B. 349 (N.L.R.B. 1972)

B & E SUPERMART 349 Willys L. Isaacson and Elaine K. Isaacson , d/b/a B & E Supermart, Employer-Petitioner and Retail Clerks Union, Local 201 , Retail Clerks Interna- tional Association , AFL-CIO. Case 36-RM-646 February 10, 1972 DECISION ON REVIEW BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On September 2, 1971, Charles M. Henderson, the Regional Director for Region 19, issued his Decision and Order in the above-entitled proceeding in which he found that the Employer was a successor to the Hudson Stores Company and that accordingly the existing con- tract with the Union covering the involved store is a bar to the instant petition. Thereafter, the Employer filed a timely request for review of the Regional Director's Decision on the ground that he departed from officially reported precedent. By telegraphic order dated November 2, 1971, the National Labor Relations Board granted the request for review. The Employer and the Union each filed timely briefs on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the entire record in this case with respect to the issues under review, and makes the following findings: Prior to November 30, 1971, the Stephens Street store involved herein was I of 45 retail grocery stores owned and operated by Hudson Stores Company, d/b/a Three-Boys Market (herein called Hudson) in the State of Oregon. Five of these stores were covered through voluntary recognition, including Stephens Street, by a contract between the Roseburg Independ- ent Grocery Employers Committee (herein called the Association) and the Union. This contract covering retail food clerks also included six other stores owned by members of the Association located in Roseburg and neighboring towns, became effective on February 1, 1970, and has an expiration date of April 1, 1973. At some undefined date, Hudson, realizing that the Stephens Street store was a marginal operation, made a decision to sell the store, feeling that an independent operator, unlike a large chain, "could do well." In the fall of 1970, Isaacson contacted Hudson regarding the possibility of purchasing one of two stores then availa- ble for sale. After negotiations regarding the price and terms of the purchase, a definitive agreement to pur- chase the Stephens Street store was executed on November 15, 1970, to be effective November 30, 1970. Under the terms of the sale, Hudson sold only trade 195 NLRB No. 67 fixtures, equipment, and inventory and the purchaser assumed no liabilities of Hudson except for the existing lease on the premises. A representative of Hudson told Isaacson that he was under no obligation to hire the store personnel as Hudson would try to absorb them at its other stores. Shortly before the transfer of ownership, Hudson reassigned the store manager and the assistant store manager to another Hudson store, and on November 30 the other employees were notified that they were terminated. When Isaacson took over the operation of the store December 1, 1970, he hired the four clerks who had been employed by Hudson at the time of the sale. However, they were told by Isaacson that they were being hired on a temporary basis in order to evalu- ate the needs of the new operation and that Hudson would try to absorb them in its chain. On December 7 and 22, 1970, respectively, two of these employees were absorbed by the Hudson chain; the third was discharged on February 18, 1971, and the fourth quit in April 1971. Since this latter date, none of the employees was employed by Hudson at this store at the time of the sale. Shortly after the sale, Isaacson leased the meat department facilities to two individuals who operate their business as a partnership under the name of Southgate Meat Market, and subsequently leased a portion of the store to Spudnut Shop which sells baked goods. It is clear to us that the Employer did not in fact hire Hudson's former employees on a permanent basis. In- deed it appears that the takeover of the store's former personnel was a temporary stopgap arrangement de- signed to permit interim operation of the store until the Employer could make operational changes and recruit a new permanent complement, which was in fact done shortly thereafter. The Employer also changed the hours of operation and the name of the store from Three-Boys Market to B & E Supermart. The supervisory, managerial, and administrative functions were completely changed from that of a large multitiered corporation to a small operation, local in nature. The responsibilities of its employees, including the ordering of products, were increased for the sections of the store in which they worked and substantial changes were made in the physical appearance, organization, and functional lay- out of the store. Under all the circumstances of this case, we find, contrary to the Regional Director, that the evidence is insufficient to establish that the Employer is the legal successor to Hudson's contract for the involved store. There were a number of significant changes accompan- ying the transfer, the totality of which indicate a suffi- cient lack of continuity in the employing entity as to make inappropriate a finding of successorship. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly , we conclude that the existing associa- tionwide contract is no bar to the instant petition and the case is hereby remanded to the Regional Director for further processing in a manner consistent with this Decision. MEMBER JENKINS, concurring: I concur in the result reached by my colleagues. All of the economic realities of this situation, particularly the fact that the store was formerly part of a large chain with the resources , capabilities, and responsibilities of a large organization and is now a single-store individual proprietorship , indicate to me that the employing in- dustry is not now the same as formerly and that there is no successorship.