Dade Tire Co.

National Labor Relations Board - Board Decisions

Aug 16, 1979

244 N.L.R.B. 244 (N.L.R.B. 1979)

)IDE('ISIONS O NATIONAL LABOR RAIAIIONS BOARI)
Dade Tire Company and Freight Drivers, Warehouse-
men & Helpers, Local Union No. 390, affiliated with
the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America. Case
12-CA 8041
August 16, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBLRS PENI I.I()
ANI) TRU.SDALL
On May 9. 1979. Administrative Law Judge Elbert
D. Gadsden issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
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 considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)( 1 ) of the Act by co-
ercively interrogating employees about their union
activities and by creating the impression that Respon-
dent was surveilling their union activities. The Ad-
ministrative Law Judge also found that Respondent
violated Section 8(a)(3) and (1) of the Act by dis-
charging Clinton Shingles for engaging in union ac-
tivity. We disagree. We find that Shingles was dis-
charged for insubordination.
The relevant facts, more fully set forth in the Ad-
ministrative Law Judge's Decision, are summarized
below.
The evidence reveals that Shingles signed a union
authorization card on November 29, 1977, and there-
after attended three union meetings within the next
month. In late November McLendon, Respondent's
president, asked him how the Union was going. One
week later McLendon told Shingles that employees
David Woodbury was going to be the new shop stew-
ard. In addition, employee Willie Batten testified to
some statements made by Respondent in late Decem-
ber 1977. On one occasion Respondent's secretary-
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibilily unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard DO Wall Producto. Inc., 91 NLRB 544
(1950). enid. 188 F.2d 362 (3d ('ir. 1951). We have careiull? examined the
record and find no basis for reversing his findings.
treasurer, Thompson, asked Batten if he knew any-
thing about the people trying to organize the Union.
Another time Batten heard McLendon say that Da-
vid Woodbury was head of the employees organizing
the Union, and that several of the employees wanted
to be shop steward and were assisting and assigned to
organize the Union. McLendon also said that he
thought the organizers were Woodbury and Clinton
Shingles. and that "we [management] are going to try
to get to the bottom of this." Like the Administrative
Law Judge, we find that by this conduct Respondent
violated Section 8(a)( 1).
Clinton Shingles had been employed by Respon-
dent without incident for about 3 years prior to his
discharge. At approximately 12 o'clock on Friday,
January 6, 1978. McLendon heard loud voices in the
tire bin and went to find out what was happening. He
found Shingles and another employee. Renaldo Gar-
cia, engaged in an altercation around a tire changer.
When McLendon approached them and asked what
the problem was Shingles replied, "I am tired of you
m f--s f-g with me." This abusive comment, di-
rected at McLendon and Garcia, was made in the
presence of customers and other employees. Shingles
admitted that at the time of the incident he had con-
sumed a can of beer, and that he was holding a tire
iron about 14 inches long, weighing approximately 12
pounds. Mclendon. testifying that he feared for his
physical safety, backed away and soon after left the
shop for the day.
Shingles next came to work on Monday, January 9,
at 6:00 a.m. although he had been scheduled to work
on Saturday. January 7. He noticed that his timecard
was missing, and when he asked McLendon where it
was McLendon replied. "No. you don't want to work
no way." Shingles then left the shop, and a replace-
ment was hired that afternoon. When Shingles re-
turned on Wednesday he was told that he had been
replaced.
Based on the foregoing, the Administrative Law
Judge found that Shingles' dismissal was motivated
by his union activity. The fact that he was fired with-
out warning, despite an unblemished 3-year record of
employment, considered along with Respondent's an-
tiunion attitude as manifested in the 8(a)(l) viola-
tions, led the Administrative Law Judge to decide
that the discharge was unlawful.
We conclude, however, that Shingles was fired for
his grossly insubordinate conduct of cursing McLen-
don in the presence of other employees and customers
and not for engaging in union activities. The Admin-
istrative Law Judge found as a fact that McLendon's
decision to fire Shingles was made contemporane-
ously with the act of insubordination, which strongly
indicates that it was the sole motivating cause of
Shingles' dismissal. Further, Shingles did not report
244 NLRB No. 35
244
)AI)DE IIRE (OMPANY4
for work on Saturday as scheduled, and prior to his
return Monday Respondent pulled Shingles' timecard
and promptly replaced him that afternoon. Clearly.
the nature of the act, the timing of the decision to
discharge, and the evidence that McLendon immedi-
ately followed through on that decision by removing
Shingles' timecard and replacing him point to a dis-
missal based on insubordination. In view oft the ex-
treme nature of Shingles' conduct, we do not find the
lack of a warning to Shingles or his previous good
record persuasive evidence that he was illegally termi-
nated. We shall therefore dismiss the complaint inso-
far as it alleges that Respondent discharged Clinton
Shingles in violation of Section 8(a)(3) and ( I ) of the
Act.
AMENDFD C()N(CI.SI()NS O()F l.A\
1. Dade Tire Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Freight Drivers. Warehousemen & Helpers. Lo-
cal Union No. 390, affiliated with the International
Brotherhood of Teamsters. Chauffeurs. Warehouse-
men & Helpers of America. is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of' the Act.
3. By coercively interrogating employees Clinton
Shingles, Willie Batten, and other employees about
their union activities, and by creating the impression
that Respondent was surveilling their union activities.
Respondent violated Section 8(a)( 1 ) of the Act.
4. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
5. Respondent did not violate Section 8(a)(3) and
(I) of the Act by discharging Clinton Shingles.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Dade
Tire Company. Miami, Florida, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees about
their union activities.
(b) Creating the impression that it is surveilling the
union activities of its employees.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its office and place of' business located
in Miami. Florida. copies of the attached notice
marked "Appendix." 2 Copies of said notice, on forms
provided by the Regional Director for Region 12. af-
ter being dubl signed by Respondent's authorized rep-
resentative. shall be posted by it immediately upon
receipt thereof, and be maintained by ift' fr 60 con-
secutive days thereafter. in conspicuous places. in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered.
delced. or covered b any other material.
(b) Notitf' the Regional Director for Region 12. in
writing. within 20 days from the date of this Order.
what steps Respondent has taken to comply herewith.
I IS ; RII lFR O)RDRI:RFI) that the allegations of the
complaint that Respondent discharged employee
Clinton Shingles in violration of Section 8(a)(3) and
(1) of the Act be. anal they hereb 3 are. dismissed.
In he eent that this Order i, enlorced h\ a Judgment oa i 1 tiled Stlles
(Court . ppcls, the ,rds in the lnoice reading "Posted bh\ Order oit the
Nationall I ahr Relations Board" shill reid "Polted Pursuant io .I Judgment
ot the nied States ('..url i \ppeils I torcing in Order .- te N ional
Iahor Rellons Board
APPEN D)IX
No li( t To Etvl N)Yl.S
Poslt I) BY ORI)IR 01 lIl
NAI()ONAI. LABOR RI.AI lIONS BOARI)
An Agency oft' the United States Government
WVl I. VIL NOI coercively interrogate our em-
ployees about their union activities.
Wl II.l. Nso create the impression that we
are surveilling the union activities of our employ-
ees.
Wi wni o()l in any like or related manner
interfere with. restrain, or coerce our employees
in the exercise of rights guaranteed them by Sec-
tion 7 of the National abor Relations Act.
DA)I lIRI COMPANY'
DECISION
S~t l [M:NI Il (vSI
El IHERI ). CGAI)SI)IN. Administrative l.w Judge: Upon
a charge of unfair labor practices filed on Januar 26. 1978.
hb Freight Drivers. Warehousemen & Helpers l.ocal [!nion
No. 390. affiliated ith the International Brotherhood o'
Teamsters. C'hauffeurs. Warehousemen & Helpers of Amer-
ica. herein called the Union or the Charging Part. against
Dade ire ('ompanv. herein called Respondent. a com-
plaint was issued h the Regional [)irector for Region 12 on
behalf of the General Counsel on MNarch 9. 1978.
245
D)I('ISIONS ()1: NATIONAL LAB()R REIAT()IONS BOARI)
In substance. the complaint alleges that Respondent
singled out several employees and accused them of being
members of the Union and wanting to he union stewards;
interrogated employees about their union interests, activi-
ties and desires: created the impression of' surveilling its
employees' union activities by telling them it had heard that
some employees were organizing the Union. all in violation
of Section 8(a)(l) of the Act: and discriminatorily dis-
charged an employee and thereafter failed and refused to
reinstate him to his employment because he joined or as-
sisted the Union or engaged in other union activities, in
violation of Section 8(a)(3) of the Act.
Respondent filed an answer on March 16. 1978. denying
that it had engaged in any unfair labor practice as alleged
in the complaint.
The hearing in the above matter was held before me in
Coral Gables, Florida. on October 30. 1978. Counsel for
Respondent made a summary argument on the record, and
a brief' has been received from counsel for the General
Counsel. Both counsel tor Respondent's summary argu-
ment and counsel for the General Counsel's brief have been
carefully considered.
Upon the entire record in this case and from mn observa-
tion of the witnesses, I hereby make the following:
tFIl)iN(iS iF x* IA(
1. JURISD)ICXION
Respondent is now and has been a all times material
herein a Florida corporation with an office and place of
business located in Miami, Florida. where it is engaged in
the retail and nonretail sale of automobile and truck tires.
In the course and conduct of its business operations dur-
ing the past 12 months, which is a representative period,
Respondent has received gross income in excess of $500.000
and, during the same period of time, has purchased and
received at its Miami. Florida, facility goods and materials
valued in excess of $50,000 which were shipped directly to
it from points located outside the State of Florida.
The complaint alleges, Respondent admits, and I find
that Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II. TIlE ABOR ORGANIZAIION INVOL.VED
The complaint alleges, Respondent admits, and I find
that Freight Drivers, Warehousemen & Helpers Local
Union No. 390. affiliated with the International Brother-
hood of Teamsters, Chauffeurs. Warehousemen & Helpers
of America, is and has been at all times material herein a
labor organization within the meaning of Section 2(5) of the
Act.
III. ItlE AI.LEGHlI) UNFAIR I.ABOR PRA(''I( S
The record shows that Respondent is not only engaged in
the retail and nonretail sale of automobile and truck tires
but also in the recapping and mounting of automobile and
truck tires. At all times material herein Raymond Mack)
McLendon was president of and employed by corporate
Respondent. He was in charge of the recapping tire depart-
ment, and he hired employees and supervisors.
At all times material herein the following named persons
occupied the positions set opposite their respective names.
have been and are now agents ot Respondent acting on its
behalf, and are supervisors within the meaning of Section
2(1 ) of the Act: Rav mond (Mack) McLendon. president:
Everett Thompson, vice president: Al Cannon, service
manager: Mr. Kidd. in charge of the office.
Mr. Everett Thompson was a partner. associate, and sec-
retary -treasurer of corporate Respondent. He had authority
to hire and tire personnel. In January 1977. Respondent
had and now has approximately 25 to 30 employees.'
A. The Organizing 4-l iities' o/ RetJo1d1tl Is ,tnplo'e,
Clinton Shingles. the dischargee herein, testified that he
first learned about the organizing efforts of the employees
when fellow employee David Woodbur, brought him a
union authorization card in November 1977. which he
signed on November 29. 1977 (G.C(. Exh. 2). Shingles said
that during the same period of time he was riding home
with I)avid Woodbury nearlN every day. Af'ter he signed
the union card (November 29. 1977). he attended a union
meeting at the union hall about 2 weeks later, a second
meeting about I week thereafter, and a third meeting about
I week later. He said that fellow' employees Jonah Down-
ing. Willie Batten. and George Pane were present at those
meetings.
Employee lt'ilie Jame. Batten testified that he was em-
ployed by Respondent on and off for about 2-1/2 ears and
last worked for Respondent on December 26. 1977. He said
that he drove a truck repairing tires and worked under the
supervision of Mcl.endon and Everett Thompson. Batten
further testified that he signed a union authorization card
(G.C. Exh. 5). on November 30. 1977. in the presence of'
David Woodbury. He attended two union meetings at the
union hall where other fellow employees were present. He
said that the first meeting was held about December 15,
1977. and the second meeting on or about December 30,
1977. Batten further stated that about every afternoon he
and fellow employees would congregate at the other end of'
the tire mounting court., which was at the opposite end of
the court from the office, and discuss the advantages and
disadvantages of the Union.
Raymond McLendon. president of Respondent. admitted
that he had heard rumors sometime in December or Janu-
ary that the employees were organizing a union. He can-
didly admitted that he was aware of the employees' orga-
nizing efforts prior to an altercation involving Clinton
Shingles on Friday. January 6. 1978.
Clinton Shingles testified that in late November 1977
President Raymond McLendon asked him how was the
Union going. and about I week later McLendon came out-
side and told the employees that David Woodbury was
going to be the new shop steward, and Shingles responded
that he did not know anything about it. Shingles said that
he thinks Jonah Downing and Willie Batten were present.
The facts set forth above are undisputed and are not In conflict in the
record.
246
D)AI): I IRF (OMN'\NY
In this regard. l illitc Ballen testitied that about I month
after he signed a union authorization card (Noember 3).
1977). the secretarD-treasurer. Exerett l'homipson. asked
him if he knew anything about the guys tring to start a
union. Batten said that he responded in the negative. but
said that it he heard anything about it he would let him
know. Batten said that he also heard 1Mclendon make the
statement that D)avid Woodbhur was the head of the em-
plof)ees organizing the Union. and that he had heard se,-
eral of the guys wanted to be shop stew ard and were assist-
ing and assigned to organize the tinion. Batten said that
MNcLendon aliso said he lnlonglt tlh orgalnizers werc Datid
I'oodilril andl ('linton Shingle%,. titt that "ie /Iltllltl'ge'lIe/
were going o Ir to get hi o the otom f/ this." At the tinme
Mcl.endon made these statements Batten said that fellowr
employees Clinton Shingles and Jonah Downing were pre-
sent.
Employee Jonah Downing testified that he was aware that
the employees were organizing a union because he learned
such fact from fellow employee David Woodbur. who is
no longer in Respondent's employ. Downing said that he
was asked to sign a union card, but he does not recall 'Mc-
Lendon or Thompson saying anxthing to the employees
about a union.:
B. Respondent'v l orking Time Policr atnd the Consmltilon
of/-41eohoic Spirits hi its Emploees During 14"oring
Hours
The record shows without dispute that emploece Clinton
Shingles was employed by Respondent as a tire changer for
about 3 ears until January 1977. He worked under the
supervision of Raymond McLendon. and he worked along
with about 14 other employees.
The testimony as well as the documentary evidence with
respect to the working hours of' the employees is somewhat
confusing and conflicting. In this regard. Clinton Shingles
testified that he reports to work at 6 a.m. practically every
morning although his timecards entered into evidence re-
flect that he punched in at inconsistent times, usually close
to 7 o'clock but on one occasion as late as 9:36 a.m. Ac-
cording to the testimony of President McLendon. Shingles'
record of reporting to work and punching in is rather er-
ratic. He said that Shingles would punch in any time from 6
o'clock to 10 o'clock in the morning, if he came in at all.
I credit the testimonial account of employees Clinton Shingles. Willie
Batten, Jonah Downing. and Supervisor Raymond McLendon with respect
to the organizing activities of Respondent's employees and Respondent's
knowledge thereof. I credit the above-described testimony because it is es-
sentially undisputed and is. in part. corroborated by Supervisor McLendon
I also credit the testimonial versions ot employees Clinton Shingles and Wil-
lie Batten to the effect that President McLendon made the heretofore de-
scribed statements about the Union to its employees. I likewise credit Bat-
ten's testimony with respect to Secretary-Treasurer Everett Thompson
asking him whether he knew anything about the Union. I credit the testi-
mony of Shingles and Batten not only because I was persuaded by their
demeanor that they were testifying truthfully. but also because their testi-
mony on the subject of President McLendon's statements are corroborative
of each other and because the statement uttered by Thompson is consistent
with the statements and inquiry uttered by his associate President McLen-
don. Moreover. I was persuaded by the demeanor of President McLendon
and his associate, Everett Thompson, that they were not testifying truthfully
in reference to the herein discussed testimony
Mcl.cndon said that he did not allow cmplo )ccsC to punlch
the timecards olf other enplo\ ce. tlis testimoins,. along w i(h
the testimonies of other witnesses in this pr)ceedillg. clearl
indicates that the employees were required to \,ork 8 hurs
i da -. and that the time oft their reportinog Mid depalture
was mole or less on a lexitime basis.
Mcl.endon said that he reported to work carls in the
nIlrninIg belh een 5 and ()'clock and tha tih lie al as lea'\ es
between 2:31) and 3 o'clock. ile said that he dtes not hold
enlplo)ees to an! certain ork hours. but he tries to get
each man to work 8 hours. McLendoin urther teslitied that
on about tour or five occasions he had told (linton Shingles
he ought to report to work more promptl. should \ork on
Saturda s. and take care of his job. lie said that Shingles
usuall ca;lne to w ork between 7 and 8:30(1 .n.'
Based upon the 6Iregoing credited testimonial and dcu-
mentar' evidence. I conclude and ind that Respondent did
not enforce punctualit ofl its employees i reporting to
work but tolerated a mre r less tlexiltime f ctnplolces
reporting and departing roim work. s long as each m-
ploeee worked an 8-hour da) I do not credit FPresident
McLendon's testimony: that he had spoken t (linton Shin-
gles about reporting to work promptl and oin Saturdays
because such testimony is not supported bh an written
warnings to Shingles. and I received the distinct impression
fronl his demeanor while testifying that his testimony in this
regard was sel'-serving and untruthful. his is particularl?
true when it is observed that even Respondent ( Mcl.endon)
has admitted that he does not entorce strict time tfor its
employees to report to work bhut rather is primarily con-
cerned that each employee works an 8-hour day.
Employee (linton Shingle.v further testilied that he con-
sumed a can of beer before 1( or I I o'clock on the morning
of January 6, 1978. and that employees always drink beer
on the job.Shingles denied that he was ever warned by Mc-
Lendon or Thompson about not coming to work, and he
said that Supervisor Thompson. on several occasions.
bought beer for the emplo,ees. He said that frequently a
tractor-trailor would come in for them to unload barrels or
tires and Supervisor Thompson would say. "Get you a cou-
ple of six packs." and he or Jonah Downing would go and
get it. Shingles said that Supervisor hompson had seen
him drinking beer on the job, and that hompson would
buy the beer for the employees around 3:30 p.m. and give
him $1 to purchase the beer. Jonah Dosning, who has been
employed by Respondent for 10 ears as a tire changer.
admitted that he drank beer on the job although he had not
seen anyone else drink on the job. However. he did not
have any knowledge that Respondent allowed employees to
drink on the job.
Employee Renaldo Garcia has been employed by Re-
spondent for I year as a tire changer. He testified that he
had never seen McLendon or Thompson buy beer for the
employees. He also acknowledged that he has never heard
management reprimand any employee for drinking on the
job. Both McLendon and Thompson denied purchasing
3I credit the lestlimony ot Supervisor Mcl.endin over that of employee
Clinton Shingles to the effect thalt Shingles does not report to work at 6
o'coc:k eery morning as he testified, but rather, that he generally reports to
work iat 7 a m anti tin some tocc.lsons a late as 8 or '9 o'clock
247
D)I(ISI()NS ()1 NAIONAL LABOR REI.AIlI()NS BOARI)
emplosees alcoholic beverages or periitting or having anN
knowledge that employees drank alcoholic beverages on the
job. MXcLendon said that he was not aware that Thompson
ever purchased or knew that emplosees drank alcoholic
beverages on the job.
Employee Renaldo Garcia acknowledged that he had
seen other emploqees drinking alcoholic beverages on the
job during hreaks.4
Based on the foregoing credited testimony I conclude
and find that Respondent's employees frequently drank
beer and/or other alcoholic beverages while they unloaded
trucks and during breaks on the job: and that Supervisor
Thompson not only knew that the employees engaged in
such drinking, but on occasion did give them mone? to
purchase such beverages, probably as an incentive for them
to do a good job of unloading the trucks. Certainly the
knowledge of Supervisor Thompson of' such drinking prac-
tices of the employees was also knowledge of Respondent.
C. The Altercation lnvolt/rin Emp/t'7ces (li1nioi Shingles
and Renaldo Garcia on Janlarvr 6, 1978
President Ralymond McLendon testified that sometime be-
tween I I and 12 o'clock on Friday, January 6. 1978, he had
a store full of customers, and that the service court area
where the tires are changed is about 100 feet long. While in
the store he heard loud talking and arguing in a high tone
of voice so he proceeded to investigate. When he got down
to the second tire changer he saw Renaldo (Ray) trying to
use the last tire changer in the row because the other two
were busy. He observed Clinton Shingles leaning over a
tire, and he said to Clint. "How about letting Ray use the
tire changer because he has a customer here and the man is
in a hurry." At that time Clint Shingles stood up straight
with a dog (an iron tool about 14 inches long), in his hand
and said, "I am tired of you white mother-fuckers jumping
on me and telling me what to do." President McLendon
said that he observed that Shingles was drinking and was
ready to fight. Being apprehensive of getting into a fight
with a younger man (Shingles). he told Ray to come along
for there was no use in carrying the matter any further.
They walked away.
' With respect to employees drinking alcoholic beverages on the job, I
credit the testimonial accounts of Clinton Shingles and Renaldo Garcia over
the accounts of Supervisors McLendon and Thompson and Respondent's
bookkeeper, Thelma K. Miller, because I was persuaded by the admission of
employees Clinton Shingles and Jonah Downing that they have engaged in
drinking alcoholic beverages on the job. I was further persuaded that their
accounts were truthful because they were, in part, corroborated by employee
Renaldo Garcia, who said that he had seen other employees drinking beer
during breaks on the job. I do not credit the testimony of Supervisor McLen-
don with respect to the employees drinking because all the alleged drinking
occurred in the afternoon, and McLendon was generally not present. More-
over, I do not credit Supervisor Thompson's denial that he purchased beer
for the employees or that he knew the employees drank alcoholic beverages
on the job because I was not persuaded by his demeanor that he was testif.-
ing truthfully in this regard, and I do not believe that Supervisor Thompson
would not have known of the employees' drinking, especially when they
admitted that they have engaged in such drinking on the job. I do not credit
Miller's testimony because her knowledge of Respondent's policy prohibiting
drinking is irrelevant to the question as to whether the employees in fact
drank, and Respondent knew about their drinking and failed to enlbrce such
a policy if indeed such policy existed at all.
(b 1/on Shingr,/c testified that on the morning of January
6, 1978X a customer was having some tires mounted, and he
described the situation as follows. He went to McLendon
and told him that the lady wanted four tiger paw tires.
thereafter. he went to the hack. got the tires, and brought
them up by the tire changer. At that time fellow employee
Renaldo Garcia approached him as he was breaking the
tires on the tire changer with the iron dog and said. "Give
me these tires." Shingles said. "No. man. These belong to
that lady right there." The tires were size 15, and Renaldo
Garcia needed size 14 tires. lie said that Garcia then pro-
ceeded to take the tires, and Shingles continued to testify as
flllows:
And then he shoved me and I said, "iHe, man, don't
shove me." Just like that.
And so at that time Mack was coming down from
the office. And so he said. "Well I'm gonna take them
anL v a."
And I said. "You ain't gonna take those tires from
me." I said, "You better go ahead on, you half-breed."
I didn't say no half-white, or nothing like that. I called
him a half-breed.
.t l)(;} (GAI)SI)IN: WVho were Nou referring to?
Tint Wi i: ss: That guy right there (indicating).
Jl )(il: GAI)SI)DN: Mr. Garcia?
Tilt WIliNiss: Right.
And so when I looked around Mack was standing
behind me. hut I wasn't talking to him. I was talking to
that guy over there.
And I did not go back down there. I mean Mr.
Mack's statement, he said I come hack.
Shingles contends that he called Garcia a hall-breed and
told him "to get the tuck out of here." He further stated
that the iron he had in his hand may weigh 10 or 12
pounds, is about 12 inches long, and that he was using it to
insert in the tire to dismount it from the rim. He acknowl-
edged that he had it in his hand as he was talking to Garcia.
He denied that he had any conversation with McLendon,
who stood about 5 or 6 feet awav from them and finally
walked away. He believed that Jonah Downing was stand-
ing about 4 or 5 feet away. He said that Garcia did not
respond, and that was the end of the altercation.
Shingles also denied that he told Mcl.endon to leave him
alone. cannot you see I am busy, "I am tired of you white
mother-fuckers fucking with me." He said that he left the
job about 6 p.m. that day, and that he is paid by the hour.
tie denied that he punched in at 7:05 a.m. and punched out
at 3:20 p.m. on January 6, 1978, as his timecard indicates.
Instead, he contended that he punched in at 6 a.m. and
punched out at 6 p.m. Shingles also admitted that he did
not report to work on Saturday. January 7, as he was sched-
uled to report, but said that he came in on Monday morn-
ing about 6 o'clock to get his timecard and discovered that
it was not there. He said that McLendon saw him and said,
"No. you don't want to work no way." Shingles said that he
then left and got a cup of coffee. and McLendon said,
"Clint, bring your uniforms in." Shingles said that he
brought in his uniforms the next day. but McLendon said
that he did not know when Shingles returned his uniforms.
248
DADE TIRE COMPANY
Shingles further stated that he has not had any other
altercations or fights with employees during his working
tenure. He denied that he returned to the job on Friday,
January 6, in the afternoon well dressed, as employee Re-
naldo Garcia testified. Shingles said that he usually works
on Saturdays, and that he has missed a few Saturdays as
have all employees such as Willie Batten and David Wood-
bury.
With respect to the termination of Clinton Shingles' em-
ployment with Respondent, President Raymond McLendon
gave essentially the same testimonial account of the alterca-
tion as Clinton Shingles and Renaldo Garcia except with
respect to Clinton Shingles' profane response to his request.
Consequently. I credit the testimonial accounts of the alter-
cation except that I discredit Clinton Shingles' denial that
he told President McLendon, "I am tired of you mother-
fuckers fucking with me," and that he was in an angry and
provoked state of mind at the time. I do not credi Clinton
Shingles' testimony to the effect that he reports to work and
punches in at 6 o'clock a.m. every morning, nor President
McLendon's testimony that Shingles reports to work any-
time between 7 a.m. and 11 a.m. because it is well estab-
lished by the collective credited testimony of record that
Respondent did not enforce punctuality of its employees
reporting and departing from work but rather tolerated a
flexible policy of its employees reporting to and departing
from work, so long as the employee worked an 8-hour day.
I credit Clinton Shingles' testimony that he reported to
work on Monday, January 9, at 6 a.m. and upon not finding
his timecard and having been seen by McLendon inquired
about it. President McLendon told him that he did not
want to work anyway. I credit the latter's testimony not
only because I was persuaded by his demeanor that he sas
testifying truthfully, but also because I was not persuaded
by the uncertain, selective, and cautious manner in which
President McLendon testified with respect to the presence
or absence of Clinton Shingles on Monday, January 9,
1978. This conclusion is further supported by the fact that
Clinton Shingles was replaced by tire changer Hightower.
According to the testimony of President McLendon him-
self, Shingles was not advised that his employment was ter-
minated until he reported to work on Wednesday, January
I. At that time President McLendon told Shingles that he
had been replaced. It is for the above-described reasons
that I do not credit President McLendon's testimony that
he did not see employee Clinton Shingles on Monday,
January 9, and because he was frustrated in trying to carry
out the work of Respondent without adequate help, he re-
placed Shingles on that afternoon. At another time during
cross-examination President McLendon said that he actu-
ally decided to replace Shingles on Friday, January 6, and
that decision was not based upon Shingles' not having re-
ported for work on Saturday, which had not yet occurred.
Thereafter, President McLendon testified that had Shingles
reported to work on Saturday he would have reconsidered
permitting Shingles to go to work. However, he further con-
tends that when Shingles did not report for work on Mon-
day morning, which fact Shingles disputes. he decided that
Shingles had quit.
Vice President Everett Thompson, who was not present at
the jobsite on Friday, January 6, and did not observe the
altercation involving Shingles. testified that he did hear ru-
mors about the altercation. He testified that Shingles came
in the following Wednesday at 12:30 p.m. or I p.m., stated
that he did not see his timecard, and he (Thompson) ad-
vised Shingles that he would have to see McLendon. Vice
President Thompson further stated that he hired tire
changer Luther Hightower. who walked in off the street
looking for a job on Monday aternoon, January 9, to re-
place tire changer Shingles. He further stated that he made
the decision to hire Hightower and started him to work on
Tuesday. January 10. Thompson further stated that he had
no discussion with McLendon regarding the hiring of Lu-
ther Hightower. However, I do not credit Vice President
Thompson's testimony in this regard because I was not only
persuaded by the manner in which he testified that he was
not testifying truthfully, but also because I find it inconceiv-
able that the vice president of a small business operation
such as Respondent's would not have discussed the replace-
ment of an employee of 3 years duration with President
McLendon. Moreover, while it is possible and may have
been purely coincidental that a tire changer (Luther High-
tower) conveniently walked into Respondent's store on
Monday, January 9, seeking employment as a tire changer,
I find it highly improbable that such was the case. In fact.
common experience discredits it.
Based upon the foregoing credited testimony I conclude
and find that Clinton Shingles did report for work on Mon-
day morning. January 9, and was not permitted to work by
President McLendon: that President McLendon and Vice
President Thompson decided to replace him on Friday.
January 6, as McLendon testified; and that President Mc-
Lendon and Vice President Thompson effectuated their de-
cision by hiring Hightower on Monday. January 9. When
Clinton Shingles made a second effort to report to work on
Wednesday, January I1, he was candidly advised for the
first time that he had been replaced, which in effect was a
termination of his employment. I further conclude and find
that while Clinton Shingles might have returned to the job
at 5 p.m. on Friday. January 6. well dressed, as the testi-
mony of Garcia indicates, such fact is immaterial to a deter-
mination of the necessary and indispensable issues pre-
sented for determination herein.
Anal1sis and Conclusions
It is clearly established by the undisputed and acknowl-
edged testimony of record that Respondent's employees
carried on an organizing campaign for the Union during
November and December 1977 and in January 1978: and
that Respondent (President McLendon), acknowledged that
it learned about the employees' organizing activities in De-
cember and January. prior to the altercation which oc-
curred between employees Clinton Shingles and Renaldo
Garcia.
The credited evidence of record further establishes that in
about late November 1977 Respondent, through President
McLendon, asked Clinton Shingles, "How was the Union
going"; that about I week later he told employees Shingles.
Jonah Downing, and Willie Batten that employee David
Woodbury. a chief organizer of the Union, was going to be
the new shop steward: that in late December Respondent.
249
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through Secretary-Treasurer Everett Thompson, asked em-
ployee Batten if he knew anything about the employees
trying to organize a union; that Batten heard President Mc-
Lendon make the statement in the presence of fellow em-
ployees Shingles and Downing to the effect that he thought
David Woodbury and Clinton Shingles were the chief lead-
ers ot the employees' organizing effort, that Respondent
was going to get to the bottom of this; and that he. McLen-
don, had heard that several guys wanted to be steward.
Although employee Jonah Downing testified that he did
not recall any of the four described questions and state-
ments made by Respondent through McLendon and
Thompson. it is particularly noted that he did not deny that
such questions were asked or that such statements were
made. Moreover, I was persuaded by Downing's demeanor.
as I observed him on the witness stand, that he was notice-
ably cautious and selective in answering questions. On
questions which could have resulted in an answer adverse
to Respondent's interest, I noted that Downing would re-
spond that he could not recall. Since it is therefore clear
from credited evidence that Respondent through President
McLendon and Secretary-Treasurer Thompson, asked the
aforedescribed questions and made the statements hereto-
fore attributed to them, I thereupon conclude and find that
such questions by McLendon and Thompson, as well as
their statements made to the employees regarding the
Union and prospective stewards therein, created the im-
pression that the employees' union activities were under
surveillance by Respondent and had an interfering, re-
straining, and coercive effect upon the exercise of employ-
ees' protected rights in violation of Section 8(a)( ) of the
Act. This conclusion is especially true since both McLen-
don and Thompson were high ranking managerial officials
of the Respondent.
With the above-described background of Respondent's
unlawful conduct in mind, the principal and crucial ques-
tion remaining for determination is whether Respondent
terminated Clinton Shingles on Friday. January 6. or Mon-
day, January 9, 1978, because Shingles had a profane alter-
cation with fellow employee Renaldo Garcia on January 6
and while, in the heat of anger, uttered in the presence of
Garcia and President McLendon that he was "tired of you
motherfuckers fucking with me": or whether Shingles was
terminated by Respondent because of his union activities.
In answering this question it is first observed that em-
ployee Clinton Shingles has been in the employ of Respon-
dent for a period of 3 years prior to the altercation incident
on January 6, 1978; that Respondent knew that its employ-
ees, including Clinton Shingles and David Woodbury, were
the chief organizers during the Union's organizing activities
in November and December 1977 and January 1978: that
employee Clinton Shingles had consumed at least one can
of beer on the morning of January 6, 1978: that it was not
uncommon for employees to drink beer on the job, and
Respondent had knowledge of such fact; that the January 6
altercation incident was the first such altercation in which
employee Shingles was involved while in the employ of Re-
spondent; that Respondent had never issued an oral or
written warning to Clinton Shingles regarding his time and
attendance or his work performance: that Respondent's de-
cision to terminate Clinton Shingles on Friday, JanuaO' 6. is
evidenced by a partial admission to such fact by President
McLendon. as well as by Respondent's removal of Shingles'
timecard from the rack on Monday, January 9, 1978: that
Respondent did not notify Clinton Shingles that he was
terminated at any time between Friday, January 6. 1978.
and noon or thereafter on Wednesday. January 11, 1978,
even though Respondent had replaced Shingles on Mon-
day, January 9, with tire changer Luther Hightower, who
commenced work with Respondent on Tuesday, January
10, 1978: that Respondent's termination and replacement
of Clinton Shingles was therefore precipitously executed
without any prior warning to Shingles: and that when all of
these circumstances are considered in conjunction with Re-
spondent's conduct in violation of Section 8(a)(1) of the
Act, I am persuaded by all of the evidence of record that
the primary motivating cause for Respondent's termination
of Clinton Shingles' employment was his union activity,
rather than his involvement in a single altercation or act of
insubordination.
It must be borne in mind that it is not essential that the
union activity of Clinton Shingles be the only ground for
his discharge to support a finding of unlawful termination.
N. L. R. B. v. Challenge-Cook Brothers of Ohio. Inc., 374 F.2d
147 (6th Cir. 1967). Consequently, the alleged replacement
of Shingles for insubordination, which I find was discrimi-
natory notwithstanding that a valid ground for his dis-
charge may have existed since his union activity was the
substantial motivating cause for his termination. See
VN.L.R.B. v. West Side Carper Cleaning Co., 329 F.2d 758,
760 (6th Cir. 1964).
Since the evidence of record is clear that employees
worked 8 hours a day on a more or less flexitime basis: that
it is not uncommon for the employees to consume alcoholic
beverages on the job: that employees other than Shingles
have failed to work on a Saturday, and it was not shown
that Shingles was requested or directed to work on Satur-
day. January 7, 1978: and that President McLendon's
charge that Shingles said you "white motherfuckers" is not
corroborated, and therefore it is not clear that the reference
was directed to McLendon alone or to both McLendon and
Garcia. Consequently. I find that Respondent advanced
these reasons as a pretext to conceal its real and unlawful
reason for discharging Shingles. namely, Shingles' union ac-
tivities.
IV. HE EFFE(T OF THE UNFAIR LABOR PRA(C('CES UPON
('OMMER('F
The activities of Respondent set forth in section 111,
above, occurring in connection with the operations of Re-
spondent described in section I. above, have a close, inti-
mate, and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow thereof.
V. THE REMFDY
Having found that Respondent has engaged in unfair la-
bor practices warranting a remedial order. I shall recom-
250
DADE TIRE COMPANY
mend that it cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
It having been found that Respondent interfered with.
restrained, and coerced its employees in the exercise of their
Section 7 protected rights by coercively interrogating them
about their union interests, activities, and desires; by creat-
ing the impression of surveilling the employees' union ac-
tivities in violation of Section 8(a)(l) of the Act: and by
discriminatorily discharging employee Clinton Shingles and
thereafter failing and refusing to reinstate him to his em-
ployment because he was engaged in union activities in vio-
lation of Section 8(a)(3) of the Act. the recommended order
will provide that Respondent offer Clinton Shingles imme-
diate reinstatement to his job and make him whole for any'
loss of earnings within the meaning and in accord with the
Board's decision in F. W. Woolworth Company, 90 NLRB
289 (1950), and Florida Steel Corporation, 231 NLRB 651
(1977),2 except as specifically modified by the wording of
such recommended Order.
Because of the character of the unfair labor practices
herein found, the recommend order will provided that Re-
spondent cease and desist from or in any other manner
interfering with, restraining, or coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
See N.L.R.B. v. Entwistle Manufacturing Company, 120
F.2d 532. 536 (4th Cir. 1941).
See, generally, Isis Plumbing & Heating Co, 138 NLRB 716 (1962)
Upon the basis of the above findings of fact and upon the
entire record in this case. I make the following:
CON( IUSIONS O)F LAVw
1. Dade Tire Company, Respondent. is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Freight Drivers, Warehousemen & Helpers Local
Union No. 390, affiliated with the International Brother-
hoo(d of Teamsters, Chauffeurs. Warehousemen & Helpers
of America, is and has been at all times material herein a
labor organization within the meaning of Section 2(5) of the
Act.
3. By coercively interrogating employees Clinton Shin-
gles. Willie Batten, and other employees about their union
activities and by creating the impression that Respondent
was surveilling their union activities Respondent violated
Section 8(a)(1) of the Act. except to the extent that such
rights may be affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
4. By discriminating in regard to the tenure of employ-
ment of Clinton Shingles in an effort to discourage member-
ship in the Union, a labor organization. Respondent has
engaged in unfair labor practices condemned by Section
8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.s
251