7-Eleven Food Store

National Labor Relations Board - Board Decisions

Jul 22, 1981

257 N.L.R.B. 108 (N.L.R.B. 1981)

108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walter Jack and Dixie A. Macy d/b/a 7-Eleven
Food Store and Retail Store Employees Union
Local 322, affiliated with United Food and
Commercial Workers International Union,
AFL-CIO-CLC. Case 17-CA-9307
July 22 1981
DECISION AND ORDER
On April 9, 1981, Administrative Law Judge
Jesse Kleiman issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
limited exceptions and a supporting brief, and Re-
spondent filed cross-exceptions and a supporting
brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 1 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section IO(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Walter Jack
and Dixie A. Macy d/b/a 7-Eleven Food Store,
Neosho, Missouri, its officers, agents, successors,
and assigns, shall take the action set forth in the
said recommended Order.
1 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. II is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi·
bility unless the clear preponderance of all of the relevant evidence con·
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc .. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
In agreeing with the Administrative Law Judge's finding that a bar·
gaining order is unnecessary, we do not rely upon his findings with
regard to the subjective impact of Respondent's unfair labor practices
upon its employees or the degree of employee turnover since the occur-
rence of those unfair labor practices. Rather, we find that, under the cir-
cumstances present herein, our utilization of traditional remedies will suf·
lice to insure a fair election and erase the present effects of Respondent's
past misconduct.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge: Upon an
amended charge filed in Case 17-CA-9307 on December
20, 1979, by Retail Store Employees Local 322, affiliated
with United Food and Commercial Workers Internation-
al Union, AFL-CIO-CLC, herein called the' Union, the
General Counsel of the National Labor Relations Board,
by the Regional Director for Region 17, Kansas City,
Kansas, duly issued a complaint and notice of hearing on
December 28, 1979, against Walter Jack 1 and Dixie A.
1 Walter Jack Macy is also referred to herein as Jack Macy.
257 NLRB No. 35
Macy d/b/a 7-Eleven Food Store, herein called the Re-
spondent, alleging that the Respondent engaged in cer-
tain unfair labor practices within the meaning of Section
8(a)(l) of the National Labor Relations Act, as amended,
herein referred to as the Act. On January 8, 1980, the
Respondent filed an answer denying the material allega-
tions in the complaint. 2
A hearing was duly held before me in Neosho, Mis-
souri, on April 29, 1980. At the hearing the complaint
was amended, without opposition thereto, to add the al-
legation that on October 6, 1979, Dixie A. Macy threat-
ened the Respondent's employees "with violence because
of their membership in, support for, and activities on
behalf of the Union." At the close of the General Coun-
sel's case and at the conclusion of the hearing the Re-
spondent moved to dismiss the complaint for failure of
proof. I reserved decision on these motions. All parties
were afforded full opportunity to appear, to introduce
evidence, to examine and cross-examine witnesses, to
argue orally on the record, and to file briefs. Thereafter,
the General Counsel and the Respondent filed briefs. In
its brief the Respondent renewed its motion to dismiss
the complaint for failure of proof. For the reasons here-
inafter set forth, I deny the Respondent's motions to dis-
miss the complaint in its entirety.
Upon the entire record and the briefs of the parties,
and upon my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a sole proprietorship, is engaged in
the operation of a 7-Eleven convenience retail grocery
store located at 817 Neosho Boulevard, Neosho, Missou-
ri, under a franchise agreement from Mako, Inc. 3 In the
course and conduct of the Respondent's business oper-
ations during the preceding 12 months, these operations
being representative of its operations at all times material
herein, the Respondent's gross volume of business at its
store exceeded $500,000 and also, the Respondent, in the
course of its business operations within the State of Mis-
souri, annually purchases goods and services valued in
excess of $25,000 directly from sources located outside
the State of Missouri. The complaint alleges, the Re-
spondent admits, and I find that the Respondent is now,
and has been at all times material herein, an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
Further, the complaint alleges that at all times material
herein Walter Jack Macy and Dixie A. Macy were "co-
owners" of this business and had been, and were now,
2 In its answer to the complaint the Respondent for "Second Defense"
asserted that "[t]he NLRB is without jurisdiction over the Employer in
this matter and therefore the within complaint should be dismissed.''
However, at the hearing the Respondent admitted that its annual gross
volume of business exceeds $500,000 which meets the Board's "jurisdic-
tional standard" for a retail enterprise. In view thereof the Respondent
made no motion to dismiss on this ground at the hearing nor in its brief
filed herein.
3 The parties herein stipulated that the Respondent and Mako, Inc., are
separate employers.
7-ELEVEN FOOD STORE 109
supervisors or agents acting on behalf of the Respondent
within the meaning of Section 2(11) and (I 3), respective-
ly, of the Act. The Respondent admits that Walter Jack
Macy and Dixie A. Macy were supervisors within the
meaning of Section 2(11) of the Act but that "Dixie A.
Macy is not now a supervisor or agent acting on behalf
of the Employer within the meaning of Section 2(11) and
Section 2(13) respectively of the Act." From the admis-
sions of the parties and from the evidence herein, I find
that the above-named persons are supervisors within the
meaning of Section 2(11) of the Act, and have been and
are now agents of the Respondent acting on its behalf. 4
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I
find that Retail Store Employees Local 322, affiliated
with United Food and Commercial Workers Internation-
al Union, AFL-CIO-CLC, is, and has been at all times
material herein, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that the Respondent, between
the dates of October 19-30, 1979, violated Section 8(a)(l)
of the Act by creating an impression among its employ-
ees that their union activities were under surveillance by
the Respondent; by soliciting its employees to ascertain
and divulge to the Respondent the union activities, sym-
pathies, or desires of other employees; by interrogating
its employees regarding their own and other employees'
union membership, activities, and sympathies; by threat-
ening its employees that it would close its store if they
selected the Union as their collective-bargaining repre-
sentative; by threatening its employees with blackmail
and/or violence because of their membership in, support
of, and activities on behalf of the Union; by threatening
an employee with reduction in working hours and
adding those hours to the working hours of another em-
ployee in order to persuade that employee to withdraw
his support from the Union; and by circulating among its
employees a petition requesting the Union to withdraw
the representation petition the Union had filed with the
Board in Case 17-RC-8916. The Respondent denies
these allegations.
A. Background
Glen Conyers, a business representative for the Union,
testified that in mid-October 1979 he received a tele-
phone calJ from David Kersey, one of the Respondent's
employees, who advised him that a majority of the em-
ployees were interested in having the Union represent
4 The Respondent alleges that the store was "originally operated by
Jack and Di•ie Macy but is now operated by Jack Macy only." The evi-
dence shows that at all times material herein Di•ie Macy, the wife of
Jack Macy the owner, worked in the store. Where the employer is a
small sole proprietorship, the marital relationship of itself has been
deemed sufficient to lead employees to believe an employed wife speaks
and acts for her husband. Particularly where her remarks and actions are
consistent with those of her employer-husband and the wife spends much
time at the facility, the Board has construed a wife to be part of manage·
ment. William 0. Ho)Y!S. d!b/o Superior Cas1ing Company, 230 NLRB
1179 (1977).
them for purposes of collective bargaining with the Re-
spondent. He stated that he told Kersey about the advan-
tages of union representation and requested the names
and addresses of the employees so the Union could send
them authorization cards to sign. Conyers related that
subsequently Kersey called him again, giving him a list
of the employees' names and addresses and the Union
sent them each a letter with an enclosed union authoriza-
tion card on or about October 16, 1979. Conyers contin-
ued that he mailed the letter and authorization cards to
employees David Kersey, Rodney Stark, Brent Cotton,
and Bill Burr. He added that within a few days thereaf-
ter he received the signed authorization cards back from
these employees. 6 The evidence herein shows that David
Kersey, Brent Cotton, Rodney Stark, and Bill Burr all
signed authorization cards for the Union. 6 The evidence
also shows that in October 1979, prior to its obtaining
the signed authorization cards from the Respondent's
employees, the Union filed a petition for certification of
representative with the Board and then subsequently
filed an amended petition after receipt of the employees'
executed cards.
B. The Appropriate Bargaining Unit
The complaint alleges, the parties stipulated at the
hearing, and I find that the unit appropriate for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act consists of: All full-time and regular
part-time employees at its store in Neosho, Missouri, ex-
cluding office clerical employees, guards and supervisors
as defined in the Act. At the hearing the parties also stip-
ulated that "on or about October 18, 1979, the Respond-
ent employed six employees" who were properly includ-
able within the unit. 7
C. The Evidence
Foster B. Young, employed by the Respondent as a
store clerk, 8 testified that on or about October 20, 1979,
5 Concerning this the testimony of David Kersey was similar in nature
to that given by Conyers. Kersey testified that he had not given Conyers
the names of two others of the Respondent's employees, Sterling J, Watts
and Foster B. Young, because Watts was "a personal friend" of Jack
Macy, the owner, and "probably not in favor of the union" and because
Young had told him that "he had no opinion on the union, that it was up
to the rest of us."
6 Kersey, Cotton, and Stark testified that they had signed their cards
on October 18, 1979. While Burr did not testify at the hearing, having
left the State of Missouri for California, his sister Barbara Laswell with
whom he resided while living in Neosho, Missouri, identified his signa·
lure on the authorization card in evidence herein. Burr's authorization
caf