Golden Beverage of San Antonio, Inc.

GOLDEN BEVERAGE OF SAN ANTONIO, INC. 469 Golden Beverage of San Antonio, Inc. and Brewery, Soft Drink, Grain, Flour, Candy, Industrial and Allied Workers Local 1110, a/w the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 23-CA-7098 and 23-CA-7125 June 10, 1981 DECISION AND ORDER On March 21, 1979, Administrative Law Judge Roger B. Holmes issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed 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, and conclusions of the Administrative Law Judge and to adopt his recommended Order for the reasons stated herein. In his Decision, the Administrative Law Judge found that Respondent violated Section 8(a)(1) and (3) when it discharged employees Hartbarger, Amaya, and Moran, because it was motivated "at least in part" by their union activities. Subsequent to the issuance of that Decision, however, the Board declared in Wright Line' that it was aban- doning usage of the "in part" language in determin- ing whether alleged unlawful actions were discri- minatorily motivated. Rather, the Board stated that the analysis to be used in determining motivation in cases of alleged unlawful discrimination is to deter- mine first whether the General Counsel has estab- lished a prima facie case that protected activities played a role in the respondent's decision, and second whether the respondent has established as an affirmative defense that the discipline or other action would have occurred absent the protected activities. Using this analysis, we find, in agreement with the Administrative Law Judge, that Respond- ent discriminatorily discharged these three employ- ees. Background and 8(a)(1) Conduct The record indicates that the employees' union activities began on May 22 and 23, 1978,2 when employee Hartbarger commenced talking with other employees about organizing a union. He con- tacted Union Representative Eichler and together with other employees met with Eichler at a restau- rant. The next day, Hartbarger solicited employees to sign authorization cards at a parking lot adjacent to Respondent's premises. Respondent soon ac- quired at least a general knowledge of this activity, I Wright Line, a Division of Wright Line Inc., 251 NLRB 1083 (1980). 2 Unless otherwise indicated, all dates are 1978. 256 NLRB No. 81 because on May 26 Respondent's general manager, Landry, called a meeting of employees, during which he stated that he had heard that there were union activities going on and that he did not want the Union there. He further stated that the Union would charge employees money and not give them anything in return. Landry reinforced his expres- sion of hostility to unions, particularly the Team- sters, by a suggestive reference to the fate of former Teamsters President Hoffa and by the an- nouncement of a no-solicitation rule prohibiting employees from engaging in union activity on com- pany time or company property. Respondent has not excepted to the Administrative Law Judge's conclusion that this no-solicitation rule barred em- ployees from union solicitation during their non- working time on Respondent's premises and that it violated Section 8(a)(1) of the Act. The record further reveals that Respondent became aware of these three employees' organizing activities. After this general meeting, Landry met separately with alleged discriminatee Amaya, who had not been present at the meeting. Landry stated to him that he probably knew the meeting was about the Union and that Hartbarger and Moran were trying to start a union. After Amaya denied all knowledge of such assertions, Landry asked Amaya if he were interested in the Union and how he felt about it. Amaya replied that he would have to look into it. Respondent's interest in Amaya's at- titude toward the Union continued, because Super- visor Martinez later asked him why he wanted the Union and if he had signed a card. Amaya ad- mitted to Martinez his support for the Union at this time. Respondent has not excepted to the Adminis- trative Law Judge's conclusions that, by the con- duct stated above, Respondent repeatedly engaged in interrogations in violation of Section 8(a)(l). Respondent's belief that Moran was prounion is evidenced not only by the above conversation be- tween Landry and Amaya, during which Landry stated that Moran was trying to start a union, but also by further evidence that Supervisor Stende- beck told Moran prior to his discharge that Moran would not like a firefighter's job because they were not union and that he had heard rumors going around that Moran was involved in the Union. We agree with the Administrative Law Judge's finding that such statements are coercive toward an em- ployee's exercise of Section 7 rights and that they violated Section 8(a)(1). The extent of Hartbarger's accomplishments in securing employee support of the Union, despite Respondent's expressed wishes, became manifest on May 30 when Hartbarger announced to Supervisor Martinez that he had 15 union cards signed, appar- 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ently a majority in the unit of approximately 28 employees. By the end of May, Hartbarger also had informed Manager Landry and Supervisors Torbert, Stendebeck, and Bouler of his efforts to organize the Union. The Administrative Law Judge found that Bouler created the impression of surveillance by informing Hartbarger at this time that he knew the names of union card signers, spe- cifically mentioning several names. Respondent has not excepted to this finding. Hartbarger's state- ments to these individuals indicated a steady in- crease in the number of employees supporting unionization, which reached 19 "votes" for the Union by June 1. 8(a)(3) Allegations At the end of the workday on June 1, Manager Landry spoke with Hartbarger and informed him that the insurance company had finally received a copy of his driving record, had "hit the ceiling," and had informed Landry that Hartbarger was un- insurable. Landry then told Hartbarger, who had been employed by Respondent for approximately 3 months as a truckdriver, that he was fired. Truck- drivers Amaya and Moran were similarly informed by Landry on June 20 that the insurance company would not cover them and that they would have to be discharged. Based on the facts set forth above, the General Counsel has clearly established a prima facie case that these employees' protected union activities were a mativating factor in Respondent's decision to discharge them. Each supported unionization and had signed authorization cards, and Respond- ent had acquired knowledge of these union activi- ties. Prior to their discharges Respondent exhibited union animus and had engaged in a number of inci- dents in violation of Section 8(a)(1) of the Act, many of which were directed at these individuals. Despite such misconduct, it became apparent that employee support for the Union continued to grow, and the discharges followed shortly after Respondent was informed that over two-thirds of the unit employees supported the Union. Under Wright Line, this prima facie showing causes the burden to shift to Respondent, requiring it to dem- onstrate that these employees' discharges would have occurred absent their protected activities. Respondent's affirmative defense rests squarely on its assertions that on June I its insurance carrier, Kemper Insurance Companies, requested the motor vehicle records of Respondent's new drivers and that this information was given to Respondent's in- surance agent, Wayne Gregory, to be passed on to Kemper. Upon the receipt of the driving records of these employees, including Hartbarger, Moran, and Amaya, Kemper's underwriter determined that the latter three drivers were to be excluded from cov- erage. Kemper informed Gregory of its decision, and Gregory relayed this information to Respond- ent's general manager, Landry. Landry testified that he was notified by Gregory on June I that Hartbarger was to be excluded from insurance cov- erage and that, as a result of this exclusion, he de- cided to terminate Hartbarger that day. Landry tes- tified that he similarly decided to discharge em- ployees Amaya and Moran after Gregory informed him on June 20 that they were to be excluded from insurance coverage as well. In short, Respondent claims that its decision to discharge these three drivers was not due to their union activities, but re- sulted solely from their exclusion from insurance coverage. As detailed below, a careful review of the record reveals a series of inconsistencies, ambiguities, and omissions in the record, which in their entirety cast considerable doubt on Respondent's explanation and which cause us to find unpersuasive its affirma- tive defense. The most marked inconsistency lies in the testimony of General Manager Landry. While he testified generally at one point that employees were not terminated until they were excluded from insurance coverage, the record clearly shows that Hartbarger, Moran, and Amaya were still covered by Respondent's insurance policy at the time they were discharged. Hartbarger was discharged on June 1, although he was not excluded from insur- ance coverage until June 12. 3 Likewise Moran and Amaya were discharged on June 20, although they were not excluded from insurance coverage until approximately 1 week later. 4 As the record indi- cates that Respondent was understaffed with truck- drivers and assigned Supervisor Bouler to replace Hartbarger on his regular delivery route for several weeks after his discharge, it is doubtful that Re- spondent would have discharged these drivers while they were still fully insured, absent a dis- criminatory motive. Insurance agent Gregory's testimony also does not withstand close scrutiny. He testified that Kemper had no continuity regarding the criteria to I This conclusion is based on Resp. Exh. 8, the insurance exclusion en- dorsement for Daniel Hartbarger, prepared by the insurance company on June 13, and effective by its terms June 12. 4 No insurance exclusion endorsement was introduced for either Moran or Amaya. However, Respondent did introduce a letter dated June 27 from Kemper to Gregory, Respondent's insurance agent, stating that the exclusion endorsements for Moran and Amaya were attached to the letter and that they were to be signed and returned to Kemper. The letter further confirms, however, that Kemper informed Gregory on June 23 that Moran and Amaya were to be excluded from coverage. In view of the fact that these employees had been discharged 3 days prior to June 23, it is impossible that this notice had any influence on their discharge. Respondent has not explained this incongruity GOLDEN BEVERAGE OF SAN ANTONIO, INC. 471 be used in excluding drivers from insurance cover- age and that this caused him concern when Kemper first sought to exclude some of Respond- ent's drivers in October 1977. As a result, Gregory bargained with the insurance company for a proba- tionary extension on the coverage for driver Da- villa.5 Gregory explained: [I]t was merely a process of we did not want to establish a precedent with the insurance company of allowing them to just come in and exclude drivers on an arbitrary basis; so we were trying to gain ground with the insurance company. And, at the same time, do a job for our customer. Although Kemper at no time was willing to furnish Gregory with a standard set of guidelines for the exclusion of drivers, Gregory's office did state in a July 7 letter to Respondent: 6 [I]t is a generally accepted practice of the cas- ualty insurance industry to decline risks where drivers have a three year driving record of two speeding violations and one "at fault" ac- cident. Two "at fault" accidents with or with- out speeding violations would be even worse than the above. Also, since the Motor Vehicle Report (MVR) from the State of Texas shows not only a list- ing of the current three year violations and ac- cidents, but also the total number of same for a five year period, a subject's five year record can affect an insurance underwriter's attitude toward a risk. Insurance underwriting of in- sured drivers of vehicles never has been nor never will be an exact science, therefore there can be extenuating circumstances and explana- tions of MVR violations that could possibly affect the acceptibility [sic] of the risk. Gregory further explained in his testimony that the 5-year record is considered only in marginal cases and that insurance companies considered all acci- dents "at fault" absent an explanation to the con- trary. It is in the context of the above evidence that we have examined the events of June 1, the day Hart- barger announced he had 19 "votes" for the Union, and the day he was discharged. Gregory testified that Respondent earlier had requested him to obtain a copy of Hartbarger's driving record, which he had done on February 21, but at no time prior to June I was he informed that Hartbarger 5 Kemper also sought to exclude one or two other drivers, who were no longer employed by Respondent at that time. 6 This letter was written by Lee Lance, Jr., the manager of Gregory's insurance agency, to inform Respondent of guidelines it should use in hiring new drivers. had been hired. He testified that it came as a "sur- prise" to learn on June 1 that Hartbarger was a driver for Respondent. Gregory testified that when he spoke with Landry that day, "I told him that we would, more than likely, run into some problem with Mr. Hartbarger's driving record, and that the company would probably exclude him." As pre- dicted, Kemper did find Hartbarger's record unsa- tisfactory when Gregory reviewed it with them in a telephone conversation, and he was notified that Hartbarger was to be excluded. However, the evidence indicates that the only driving record for Hartbarger available on June 1 was the one earlier obtained on February 21. It was on the basis of this record that Respondent de- cided to hire Hartbarger in February. That record shows Hartbarger had been involved in an auto- mobile accident on June 29, 1977, and had received separate speeding tickets on May 21 and November 25, 1975. The record further showed that, during the 5-year period prior to the report, Hartbarger had received a total of four traffic tickets and had been involved in two accidents. Therefore, as of June 1, 1978, Hartbarger's known driving record for the 3 years prior to that date contained only a single speeding ticket7 and a single automobile ac- cident. Therefore, according to the "generally ac- cepted practice of the casualty insurance industry" Hartbarger should not have been excluded, even assuming the absence of exculpatory explanations for the entries on his record.8 The record further shows that Hartbarger had received no tickets since he was hired by Respondent. Accordingly, the record provides no objective support sufficient to justify Gregory's statement to Landry that they would more than likely run into some problem with Hartbarger's driving record and that he prob- ably would be excluded. In reaching this conclu- sion, the record is insufficient to show that Hart- barger's 3-year record with two entries should have caused him to be a marginal case, thereby making relevant his 5-year record. In any event, it is hardly cause for the insurance company to "hit the roof," as emphasized in Respondent's brief. In contrast to Gregory's prior efforts to prevent the establishment of precedent for arbitrary exclu- sions by the insurance company, efforts which had "gained ground" with the insurance company and prevented the discharge of any driver as a result of exclusion from insurance coverage, Gregory readi- 7 As of June 1, 1978, the May 21. 1975, speeding ticket was more than 3 years old. The record also indicates that as of June 1, 1978, one of Hartbarger's two record accidents had occurred more than 5 years before 8 We note that Hartbarger testified that the June 29. 1977, automobile accident did not involve major vehicle damage, and that he was not cited with a ticket as a result of the accident ._ _ 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly acceded to the insurance company's announce- ment that Hartbarger was to be excluded from coverage. Although the exclusion of Hartbarger had all the indicia of an arbitrary exclusion, Greg- ory took no steps to prevent it. Specifically, he sought no explanation for Hartbarger's ticket or ac- cident, which he knew to be relevant consider- ations and readily available, and he did not attempt to negotiate for an extension for Hartbarger, as he had done earlier for Davilla.9 Moreover, it appears that Gregory's actions on June I had the effect of facilitating Hartbarger's discharge. Upon the receipt of Kemper's letter on June I requesting certain motor vehicle records in- formation, Gregory promptly made at least four telephone calls,10 as a result of which he obtained a review by Kemper of Hartbarger's February driving record. Had Gregory been interested in "doing a job" for Respondent, as he had done ear- lier, it would appear that he would have not sought such a quick response from Kemper, par- ticularly in view of his expressed belief that the in- surance company would probably exclude Hart- barger. On the contrary, it would appear that he made Hartbarger a special case by requesting a review by Kemper of Hartbarger's old driving record, approximately 2 weeks prior to Kemper's receipt of any other drivers' records, and that he did not even attempt to secure a copy of Hart- barger's current driving record. Respondent relies on the testimony of Gregory in substantial part to support its claim that the dis- charges were lawful. However, we find that the defects in Gregory's explanations as noted above make this testimony unreliable. Gregory was the insurance agent primarily responsible for handling Respondent's insurance coverage. The record shows that Respondent was dependent on him to prevent or delay the loss of coverage for its drivers or supervisors, and that he did assist Respondent in this capacity on a number of occasions. According- ly, the failure of Gregory to act in a consistent fashion bars Respondent from relying on Gregory's explanation to defend itself against the General Counsel's prima facie case of unlawful conduct by Respondent. In addition to the above analysis of the evidence, the entirety of the record indicates that Respondent used alleged problems involving insurance cover- age to mask its real reasons for discharging Hart- barger, Moran, and Amaya. As stated above, the 9 The record further shows that Gregory successfully took steps as late as March 1978 to prevent the exclusion of Supervisor Bouler from insur- ance coverage. 10 The record shows that Gregory made three telephone calls to Re- spondent, speaking once to Sylvia Orth, twice to Landry, and spoke also to an employee of Kemper. evidence indicates that Respondent became aware that these three drivers were engaged in organizing activities prior to June 1, the day Respondent's in- surance agent purportedly received a request for the driving records of Respondent's "new driv- ers."'' Among the list of five "new drivers" select- ed by Respondent were Hartbarger, Moran, and Amaya. However, Hartbarger had been working at that time for at least 3 months, and Amaya had been driving either as a kegman or a routeman since August 1977. l2 Accordingly, as this list of drivers was not actually limited to "new drivers," it appears that Respondent used other criteria in addition to date of hire to determine whose record would be submitted for review by the insurance company. In the absence of a coherent explanation to the contrary, we accept the General Counsel's assertion that these employees' union activities pro- vided the basis for their selection for this review and their resulting discharges. Although Moran's and Amaya's discharges came 3 weeks after Hart- barger's, the delay is attributable to the fact that Respondent had ready access to Hartbarger's Feb- ruary driving record, making immediate use there- of, and had to wait 2 weeks to obtain copies of the driving records of Moran and Amaya. ' 3 Accordingly, as Respondent has failed to ad- vance a cogent explanation indicating a nondiscri- minatory motive for the discharges of these three employees, which occurred prior to their actual ex- clusion from insurance coverage, we find that Re- spondent has not met its burden to establish affir- matively the lawfulness of these discharges as pro- vided for in Wright Line, supra.14 In adopting the Administrative Law Judge's rec- ommended Order, we specifically agree with his ordering of a reinstatement remedy. Where a re- " While the Administrative Law Judge credited testimony that Kemper specifically asked for information on the new drivers, the rele- vant letter from Kemper more generally asked for "MVR information," citing attachments which were not introduced or explained in the record, and further asked for "add'l ins," a term also not explained. Only once previously had the drivng records of groups of Respondent's drivers been sought by Kemper, in August 1977, shortly after Respondent began oper- ations. 12 Depending on when Amaya started working for Respondent in August 1977, it is possible that Amaya's driving record already had been sent to the insurance company. The record contains insufficient informa- tion to resolve this ambiguity. 13 While the insurance company apparently was an unknowing partici- pant in Respondent's efforts to discharge unlawfully the three alleged dis- criminatees, the insurance company's actions may not serve to insulate Respondent from its unlawful conduct. "4 Member Jenkins joins in this decision because the Administrative Law Judge characterized the case as one involving dual or "in part" lawful and unlawful motivation. It is plain, however, that the asserted lawful motivation was no more than a fairly transparent pretext, and that the the analysis of Wright line, set out in the Decision, has no necessary relevance to such cases. If the asserted lawful reason is shown to be pre- textual after a prima facie case for the violation is made, the case is over, without any need to distinguish dual motives; it has been established that there is only one motive, and that one unlawful. GOLDEN BEVERAGE OF SAN ANTONIO, INC. 473 spondent's has been found to have discharged driv- ers discriminatorily, and the Board has rejected a defense that they were discharged due to exclusion from insurance coverage, their exclusion from cov- erage by any particular insurance company does not disqualify them from the normal reinstatement remedy. See Laredo Packing Company, 241 NLRB 184 (1979), enfd. 625 F.2d 593 (5th Cir. 1980), cert. denied 449 U.S. 1080 (1981).' 5 In this regard, we note that the record indicates alternate insurance coverage is available for these drivers, even should Respondent's normal insurance carrier refuse to re- insure these discriminatorily discharged drivers. However, Respondent made no attempt to obtain this alternate insurance coverage or even to dispute its insurance carrier's decision to exclude the discri- minatees from coverage, as it had done on at least one prior occasion. In the absence of any explora- tion by Respondent of such alternatives, a reinstate- ment remedy is clearly warranted. 1 ORDER Pursuant to Section 10(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, Golden Bever- age of San Antonio, Inc., San Antonio, Texas, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. 't The full reinstatement remedy ordered here is not inconsistent with the more limited remedy granted in Keeshin Charter Service, Inc., 250 NLRB 280 (1980). In Keeshin a driver had been discharged in October 1977 for discriminatory reasons. Subsequent to the driver's discharge, Keeshin was advised that the discharged driver would not be covered by the insurance policy with a new carrier. While the Board tolled the remedy for the discharged driver as of the date Keeshin was advised the driver was uninsurable, that case is inapplicable to the present case, be- cause the respondent there at no time used the driver's exclusion from insurance as the pretextual ground for his discharge. le However, Respondent is not precluded, in subsequent compliance proceedings, from contending that, after a good-faith exploration of the issue of their insurability, the discriminatees proved to be actually unin- surable with any carrier, and that its backpay liability should be commen- surately reduced. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT terminate employees, and fail to reinstate them, because they engage in ac- tivities on behalf of Brewery, Soft Drink, Grain, Flour, Candy, Industrial and Allied Workers Local 1110, a/w the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other labor organization. WE WILL NOT promulgate and maintain a no-solicitation rule which prohibits our em- ployees from engaging in union solicitation during their nonworking time on our premises. WE WILL NOT interrogate our employees about their union feelings and activities, or about the union feelings and activities of other of our employees. WE WILL NOT create the impression of sur- veillance among our employees with regard to their union activities. WE WILL NOT coerce our employees in the exercise of the rights guaranteed to them by Section 7 of the National Labor Relations Act by telling an employee that he would not like a job where the employees were not represent- ed by a union, and by telling him that we had heard rumors that the employee was involved in union organizing activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them by Sec- tion 7 of the National Labor Relations Act. WE WILL offer Daniel E. Hartbarger, Sera- fin E. Amaya, and Carlos Jesus Moran imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions of employment without the loss of their seniority or other rights and privileges. WE WILL pay to Daniel E. Hartbarger, Ser- afin E. Amaya, and Carlos Jesus Moran the amount of their loss of earnings, with appro- priate interest thereon, which resulted from our termination of them. WE WILL rescind the no-solicitation rule which we announced on May 26, 1978. GOLDEN BEVERAGE OF SAN ANTO- NIO, INC. DECISION ROGER B. HOLMES, Administrative Law Judge: The unfair labor practice charge in Case 23-CA-7098 was filed on June 5, 1978, by Brewery, Soft Drink, Grain, Flour, Candy, Industrial and Allied Workers Local 1110, a/w the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Union. The unfair labor practice charge in Case 23-CA-7125 was filed on June 22, 1978, by the Union. The Acting Regional Director for Region 23 of the National Labor Relations Board, herein called the Board, who was acting on behalf of the General Counsel of the 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board, issued on August 8, 1978, an order consolidating cases, consolidated complaint and notice of hearing against Golden Beverage of San Antonio, Inc., herein called the Respondent. The General Counsel's consolidated complaint, as amended at the hearing, alleges that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) and (3) of the National Labor Relations Act, herein called the Act. Specifically, the General Counsel contends that the Respondent has engaged in various acts and conduct which are independently viola- tive of Section 8(a)(l) of the Act. The General Counsel further alleges that the Respondent terminated Serafin E. Amaya, Daniel E. Hartbarger, and Carlos Jesus Moran because of their union activities, or other protected con- certed activities, in violation of Section 8(a)(l) and (3) of the Act. The Respondent filed an answer to the General Counsel's consolidated complaint and denied the com- mission of the alleged unfair labor practices. The hearing was held before me on December 13 and 14, 1978, at San Antonio, Texas. The time for filing briefs was extended to February 1, 1979. Briefs have been received from the counsel for the General Counsel and the attorney for the Respondent. FINDINGS OF FACT I. JURISDICTION The Respondent has been, at all times material herein, a Texas corporation with its principal office and place of business located at 4852 Space Center Drive in San Ant- onio, Texas. The Respondent is engaged in the business of the wholesale distribution of beer, malt liquor, and re- lated beverages. During the 12 months preceding the issuance of the General Counsel's consolidated complaint, the Respond- ent purchased and received goods and materials valued in excess of $50,000, which were shipped directly to its Texas facility from points located outside the State of Texas. Upon the foregoing facts and the entire record' herein, I find that the Respondent has been, at all times material herein, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It was admitted in the pleadings that the Union has been, at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. Based upon the pleadings, and the entire record in this case, I find that fact to be so. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Witnesses In alphabetical order by their last names, the following eight persons appeared as witnesses: I Errors in the transcript have been noted and corrected. Serafin E. Amaya worked as a route salesman for the Respondent from the first part of August 1977 until he was terminated on June 20, 1978. Jesse R. Balderas was employed as a route salesman by the Respondent from approximately August or Septem- ber 1977 until he was terminated on July 12, 1978. David Bouler is a sales representative for the Respond- ent. It was admitted in the pleadings that Bouler has been, at all times material herein, a supervisor of the Re- spondent within the meaning of Section 2(11) of the Act. George Eichler is the secretary-treasurer of the Local Union which filed the unfair labor practice charges in this proceeding. Clifton Wayne Gregory is an account executive with Cook, Treadwell and Harry of Texas, which is an insur- ance agency with offices in Houston, Texas. CTH places insurance coverage for its customers with several differ- ent insurance companies, including the Kemper Insur- ance Companies. American Motorist Insurance Company is one of the Kemper Insurance Companies. The Re- spondent in this proceeding is one of the customers of CTH of Texas. Daniel E. Hartbarger worked as a driver-salesman for the Respondent. Hartbarger began his employment during the latter part of February or the first part of March 1978. He was terminated by the Respondent on June 1, 1978. Jim Landry has been the vice president and general manager of the Respondent since August 1977. Carlos Jesus Moran was employed by the Respondent as a driver-salesman from April 1978 to June 20, 1978. B. Credibility Resolutions A substantial amount of the testimony given by the witnesses at the hearing was not contradicted or disput- ed. Thus, many of the findings of fact herein will be based on testimony which was not controverted and on documentary evidence introduced by the parties. There were a few conflicts among the witnesses and, therefore, I have set forth herein what appears to me to be the more credible and reliable version. In doing so, I have considered the demeanor of the witnesses while they were on the stand, and the criteria set forth by the Board in Northridge Knitting Mills, Inc., 223 NLRB 230, 235 (1976). While I have based certain findings of fact upon the testimony of each one of the witnesses, including Landry, I have not credited Landry's assertion that he had no knowledge of Amaya's union activities, and Landry's assertion of the reasons for the termination of Hartbarger, Amaya, and Moran. C. The Commencement of Union Activities On May 22 and 23, 1978, Hartbarger began talking to employees of the Respondent regarding the possibility of organizing a union in order to try to get better benefits. Having received a favorable reaction from certain em- ployees, Hartbarger contacted George Eichler at his home and arranged for a meeting among Eichler, Moran, and Hartbarger at a restaurant known as Billy R's. The three persons met at the restaurant about 2 or 2:30 p.m. GOLDEN BEVERAGE OF SAN ANTONIO, INC. 475 on May 28, 1978. Both Hartbarger and Moran signed union authorization cards at the restaurant and returned them to Eichler. That night Hartbarger went to the home of one of the employees of the Respondent and got him to sign a union card. The next morning, Hartbarger was in the parking lot across the street from the Respondent's facility; there he got other employees to sign union cards. Moran solicited one employee to sign a union card at that time "right outside of the gates at Golden Beverage." In addition, Moran also talked to two other employees on company property and he spoke with them about organizing the Union. Moran testified: "I told them about the benefits and what it would do for them." Amaya spoke with Hartbarger outside of the Respond- ent's gate on May 22, 1978, regarding the Union. Some- time thereafter, but prior to his termination on June 20, 1978, Amaya signed a union authorization card. In addi- tion, prior to the time that Hartbarger was terminated on June 1, 1978, Amaya talked with other employees of the Respondent about the Union. Amaya told the other em- ployees that they should try to get the Union in to better themselves. D. The Meeting With Employees on May 26, 1978 About 6 p.m. on May 26, 1978, there was a meeting among the Respondent's driver-salesmen, warehouse em- ployees, sales personnel, and supervisors. During his direct examination by the counsel for the General Coun- sel, Hartbarger described what occurred as follows: Mr. Landry got up and said that he had heard that there were union activities around there and to the effect that he didn't want the union over there. He mentioned the fact that Pearl had had a 28 day strike, where they didn't gain any benefits, and unions, all they would do would charge you $16.60 and not give you anything in return, you know. And he mentioned the fact that the Teamsters had been affiliated with Hoffa and look what had happened to Hoffa now, you know, so .... Then he read-he passed out copies of a pre- pared statement, a prepared letter, that was to be read and he read from the letter verbatim, as we followed along. There was conversation during that meeting and discussion after that, he read that letter, about the fact that Budweiser had made more money than we did, better benefits and they had a union contract. There was also-Mr. Stendebeck made the state- ment about one of the top electricians, or some- body, I can't recall, had been cut loose from a job that an exorbitant amount of money, that he was no longer employed there, and that was a direct result of the strike. And just, you know, the general kind of atmos- phere you would expect from management towards any labor organization. Q. Did Mr. Landry say anything else? A. He just said-he told us at that time-he said there would be no organization or union activity on company time or company property; that this wouldn't be allowed. During direct examination by the counsel for the Gen- eral Counsel, Moran described what was said at the meeting as follows: Q. Did Mr. Landry speak at the meeting? A. Yes, sir, he talked to us about how bad the union was for us, and that all the union was good for was collecting union dues, and that's about all that they would do for us. They really wouldn't do anything good for us. Also at this meeting Mr. Landry said that he didn't intend to have the union-that he didn't want the union, and he didn't intend to have the union. And he also said he didn't want us talking about the union on company time or on company property. At the hearing, Landry acknowledged that during the meeting on May 26, 1978, he told the employees not to discuss the Union on company property. Amaya was not able to attend the May 26, 1978, meet- ing held by the Respondent because Amaya was working on his route until 9 p.m. When he brought his truck in to the facility and loaded it, Amaya was advised by John Hamilton that Landry wanted to see Amaya. Amaya then went to Landry's office. Landry told Amaya that he probably knew that the meeting was about the Union. Amaya replied that he did not know anything about it. Landry said that Amaya probably knew that Hartbarger and Moran were trying to start a Union. Amaya replied that he did not know anything about it that he was not familiar with it, and he "was just getting the word from them." Landry told Amaya that if he was interested in the Union, "it had pros and cons on it." Landry said that if Amaya did get into the Union that did not mean that Amaya was going to get more money, or that Amaya would get a helper every day. Landry said that it just meant that they were going to be Union, and "all they did was just take money from you." Landry asked Amaya how he felt about it. Amaya replied that he did not know, and he would look into it. E. The Conversations Between Employees and Supervisors Regarding Union Activities 1. Amaya and Martinez On May 29, 1978, while Amaya was talking with an- other driver, Willie Benitz, Supervisor Martinez ap- proached them and asked Amaya how he was doing with his route, and "how come I wanted the union." Amaya replied that he wanted the Union because there was no helper. On another occasion, while Amaya was talking with Benitz one morning, Martinez asked Amaya if he had signed a card. Amaya replied yes. 2. Hartbarger and Martinez During the afternoon of May 29, 1978, Hartbarger re- turned to the Respondent's warehouse to load his truck 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and to check in. While he was there, he told Supervisor Martinez that he had 15 union cards signed. 3. Hartbarger and Torbet On May 30, 1978, Hartbarger had a conversation with Supervisor Torbet. Hartbarger told Torbet that he was involved in union activity. Torbet replied that he was aware of it. Hartbarger told Torbet that he was going to follow through with his union activity even though it would cost him his job. Torbet replied that Hartbarger had nothing to worry about, and that Landry was not going to fire him. Hartbarger expressed doubt as to the latter comment, whereupon Torbet told him that he would not think much of Hartbarger if Hartbarger did not go ahead and follow through. Hartbarger replied that there was no doubt in his mind that he would do so. 4. Hartbarger and Landry While Hartbarger was putting gas in his truck on May 30, 1978, Landry approached him and asked if he knew Eichler. Hartbarger acknowledged that he did know Eichler and inquired why. Landry replied that he had had an occasion to talk to Eichler, and that Hartbarger's name had been brought up during that conversation. 5. Hartbarger and Bouler During the afternoon of May 31, 1978, while Hart- barger was unloading his truck at the warehouse, he told Supervisor Bouler that he wanted to talk with Bouler about the Union. During his direct examination by the counsel for the General Counsel, Hartbarger testified: And Dave said, well, he'd be glad to talk, and we talked over there, and Dave explained to me that the company didn't need a union, that when drivers over there had money problems Mr. Landry would help them in any way he could, and this and that. And I said, well, I'm not the type, and a lot of guys weren't the type of person that had to depend on somebody else, you know, they could stand on their own two feet. If we had to get money, you know, we could go someplace else. And he told me he knew the names of the people I was getting signed on the cards, and he mentioned X number of employees. And at that time I told Mr. Bouler, I said, well, if that's the case, I didn't know those guys were interested, I'll have to see them and get them signed up, too. And we discussed it a little further, and he told me, he says-I said I think we got enough votes right now to win the election and he didn't think so. And I said, well, we got them in our hip pocket so we'll win the election, there is no doubt in our mind. And then that discussion ended. 6. Hartbarger and Martinez and Stendebeck Following his conversation with Bouler, Hartbarger told Supervisor Martinez that Hartbarger had 17 "votes." On that same day Hartbarger also told Supervi- sor Stendebeck that he had 17 "votes" or authorization cards signed. On June 1, 1978, Hartbarger again spoke with Mar- tinez, and at that time Hartbarger told Martinez that he had 19 "votes." At the hearing, Hartbarger said that he believed that there were 28 eligible employees of the Re- spondent at that time. 7. Moran and Martinez Sometime prior to June 1, 1978, Moran had a brief conversation with his supervisor, Martinez, while Moran was on his route. Moran said that each one stopped on the side of the road. Moran was headed in an easterly di- rection, and Martinez was headed in a westerly direc- tion. The conversation took place about 1:30 p.m., and Moran described the location as being on a street back of Guadalupe Street. Moran asked Martinez if he had heard anything from Landry that Moran might be involved in the Union. Martinez responded that he had heard nothing from Landry, "but he had heard rumors that I was involved in the union, in organizing the union." Moran denied being in the Union. 8. Moran and Stendebeck In June 1978 Moran had a conversation with Supervi- sor Stendebeck during a fire on the roof of the ware- house. Moran testified regarding this conversation during his direct examination by the counsel for the General Counsel as follows: Yeah. It was in-I believe it was in the month of June. They had a fire at the warehouse, up on the roof, and when I arrived at the warehouse, the fire- men were inside turning the fire off, and when I walked inside, all these firemen, you know, just walking around taking it easy. I was standing back right next to Jerry Stende- beck and I made a comment about that, you know, I'd like to be a fire fighter and he came across with a comment about they weren't union and that I wouldn't like the job. And later on that afternoon I approached him and I asked him "what do you mean by that," and he said that he had heard rumors going around that I was involved in the union, in organizing the union. And at that time I denied them. 9. Balderas and Landry During the course of a conversation between Landry and Balderas on July 12, 1978, in Landry's office, Landry advised Balderas that he was being terminated at that time because the insurance company would not cover him. Balderas asked Landry if he could work in the warehouse because Balderas said that he knew how to operate a forklift. Landry responded that he did not have anything for him. Balderas then asked about being paid for his vacation which he had not taken in June. Landry explained that it was the company policy not to pay for vacation time if the employee did not take his vacation. GOLDEN BEVERAGE OF SAN ANTONIO, INC. 477 At that point Landry then asked Balderas if Balderas knew about Daniel Hartbarger and Carlos Moran orga- nizing a union. Balderas replied that he did not know anything about it. The conversation then concluded with Balderas informing Landry that it had been a pleasure working there, and asking if Landry would give Balderas a good reference if Balderas was looking for another job. Landry said that he would do so. F. The Change in Commission Rates Paid to Driver- Salesmen By letter dated May 12, 1978, the Pearl Brewing Com- pany advised the distributors of Texas Pride Beer of a price increase on that brand of beer. (See Resp. Exh. 9.) As a result of the price increase in Texas Pride Beer by the producer, the Respondent held a meeting in June 1978 with all of its driver-salesmen and supervisors. A discussion of the price increase and changes in the rate of commission paid by the Respondent to its employees was discussed. The employees voted on the changes at that meeting, and the changes in the commission rates took place during the first week of June 1978. The changes in the commission rates paid by the Re- spondent were: (1) the commission on Texas Pride Beer was reduced from 16 cents a case sold by the employee to 10 cents a case sold by the employee; (2) the commis- sion on Pearl Beer was increased from 16 cents a case sold by the employee to 17 cents a case sold by the em- ployee. Landry said that a survey of the previous week's com- missions paid by the Respondent to its employees indi- cated that the effect on each driver's commission would be an increase of about $2 to $3 a week. He estimated that the total increase in commissions paid by the Re- spondent would be an increase of about $100 per month. In May 1978, the Texas Pride brand of beer accounted for approximately 10 percent of the volume of beer sold and distributed by the Respondent; The Pearl brand of beer comprised about 70 percent. The Respondent is the sole distributor of the Texas Pride brand of beer in the San Antonio area. Other brands distributed are Jax Beer, Colt 45 Malt Liquor, Country Club Malt Liquor, and Billy Beer. Landry explained the changes in the commission rates paid to employees on Texas Pride and Pearl Beer in terms of the Respondent's marketing strategy. During his redirect examination by the attorney for the Respondent, Landry testified: Q. Would you please explain again to us why the commission on Texas Pride Beer was reduced from 16 cents to 10 cents? A. In the normal course of a price increase from the supplier, the distributor takes the increase from the brewery, adds his overhead, his additional prof- its and what have you, into it, and passes that along to the consumer, or to the retailer; and then eventu- ally along to the consumer. We received a 15 cents a case price increase from the brewery. In order to maintain Texas Pride price structure in the market as a price beer, we wanted to keep the increase as low as possible. We passed along only the increase we received from the brew- ery, in order to insure the future volume of Texas Pride. At that time, we asked the drivers to take a de- crease in that product, commission in that product, and an increase in the other products as well. Q. And when you say that Texas Pride is a price beer, what do you mean? A. It is sold, or was introduced, and is and has been sold at a certain price level in the market, below the regular selling price, the selling price of popular priced beers. Q. And is the profitability of that beer deter- mined by volume? A. Well, the profit is very low on it, in compari- son to the other products, and in order to maintain volume, you have to keep the price low. Q. So it was your proposal to reduce the drivers' commission on Texas Pride from 16 cents to 10 cents a case, is that correct? A. That is correct. Q. Why did you then propose to raise their com- mission from 16 cents to 17 cents on other prod- ucts? A. In order to keep the pay approximately the same. G. The Insurance Coverage of the Respondent Introduced into evidence as Respondent's Exhibit I was a memorandum from Becky Moore of the Kemper Insurance Companies in Houston to CTH of Texas. The memorandum is dated May 31, 1978, and was received by CTH the next day. Among other things, the memo from Moore noted that the insurance policy carried for the Respondent had an expiration date of August 1, 1978, and requested "MVR information." As a result of receiving the memo from Moore, Greg- ory had several telephone conversations with the Re- spondent on June 1, 1978. One of those conversations was with the Respondent's bookkeeper, Sylvia Orth, who supplied Gregory with certain payroll information in order to calculate the premium for workmen's com- pensation, and the names, the license numbers, and the birthdates of five "new drivers." (See G.C. Exh. 6 for the note made by Gregory of his conversation with Orth.) Also on June 1, 1978, Gregory spoke with Landry. During their conversation, Gregory brought up Hart- barger's name. Gregory said that he was surprised to learn of Hartbarger's employment because he had never been advised that Hartbarger had been employed by the Respondent. At the hearing Gregory explained that he had only been requested "to run MVR's on him." Greg- ory testified, "I told him that we would, more than likely, run into some problem with Mr. Hartbarger's driving record, and that the company would probably exclude him." Following Gregory's conversation with Landry, Greg- ory contacted the Kemper Insurance Companies and was advised that Hartbarger would be excluded from the in- surance policy coverage. Gregory said that he then re- .__ 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD layed that information to Landry on June 1, 1978. Greg- ory stated that Landry did not tell him that Hartbarger was active on behalf of the Union, or that a union drive was going on at the Respondent's facility. When Gregory was questioned as to whether insur- ance coverage could be obtained at a higher premium for Hartbarger, Amaya, and Moran, Gregory testified, "I be- lieve we could have probably placed them, through an- other carrier, a sub-standard carrier, Lloyd's or someone, at a higher premium, yes, sir." Gregory explained at the hearing the effect of an ex- clusion endorsement to the Respondent's insurance policy coverage. Such an endorsement would mean that the Respondent would no longer be insured for any acci- dents or bodily injury caused by the employee named in the exclusion endorsement. During cross-examination by the counsel for the Gen- eral Counsel, Gregory explained some lack of criteria in making a determination regarding the insurability of a driver. He testified: Q. What is the criteria that Golden Beverage's carrier uses in determining the eligibility or the in- surability of a driver? A. Mr. Torres, I cannot answer on behalf of the underwriter, what he looks at, other than the fact that he does look at the MVR and he goes from that. Q. Do you have any idea? A. No, sir, because we have experienced no con- tinuity from this particular carrier, as to what their guidelines are. We have had drivers excluded with two speeding tickets, and we've had drivers ex- cluded with more speeding tickets. So we cannot be sure as to what their guidelines are. We have asked them for them and they will not furnish us a stand- ard set of guidelines. Introduced into evidence as Respondent's Exhibit 2 was a list of "excluded employees" of the Respondent. The list consists of 11 names, including the 3 alleged dis- criminatees in this proceeding. The time period covered by the list was from August 1977, when the Respondent commenced business, to the time of the hearing on De- cember 14, 1978. Introduced into evidence as Respondent's Exhibit 3 is a letter from Moore to CTH of Texas. The letter is dated September 8, 1977. Among other things, Moore noted in her letter that there were several drivers which had been involved in accidents. She requested, "Please forward details regarding these accidents." (See Resp. Exh. 3 for the context.) At the hearing, Gregory explained that he did ask for detailed explanations of the accidents so that a review could be made by the underwriter of the exact cause of the accident. Introduced into evidence as Respondent's Exhibit 4 is a letter from Moore to Gregory. The letter is dated Feb- ruary 6, 1978. Among other things, Moore stated in her letter that "David Wayne Bouler must be excluded." At the hearing, Gregory stated that Bouler had never been excluded from the insurance coverage of the Respond- ent's policy. He explained that the insurance company was advised that Bouler was a supervisor and that he did not drive on a regular basis. The Texas Department of Public Safety issued on De- cember 12, 1978, a report on the driving record of David Bouler. A copy of that report was introduced into evi- dence as General Counsel's Exhibit 12. In pertinent part, it lists the following: 01-12-74-San Antonio 01-14-74-San Antonio 01-14-74-San Antonio 04-14-75-San Antonio 11-11-75-Leon Valley 12-04-75-San Antonio 04-19-76-Yorktown Speeding Negligent Collision ACC-motor w/ Motor ACC-motor w/ Motor Speeding ACC-motor w/ Motor Improper Turn According to Moran, Supervisor Bouler drove one of Respondent's trucks after the termination of Hartbarger. Moran said that Bouler took over Hartbarger's former route "for a few weeks." According to Bouler, he drives an automobile in the performance of his responsibilities for the Respondent. However, he acknowledged that he drives a truck for the Respondent on a sporadic and irregular basis. He stated that he did not regularly drive a truck on a daily basis. He stated that he had driven vehicles on company business since June 1, 1978. Also noted in the February 6, 1978, letter from Moore was the fact that Edward Davilla had another accident and was to be excluded. Gregory testified that he ad- vised the insurance company that Davilla was no longer employed by the Respondent. That fact was repeated in Moore's letter dated March 10, 1978, to Gregory which was introduced into evidence as Respondent's Exhibit 5. At the hearing, Gregory explained that Davilla had, in fact, never been excluded from insurance coverage under the Respondent's policy although an exclusion endorse- ment on Davilla had been requested by Moore in her letter dated September 8, 1977. (See Resp. Exh. 3.) Greg- ory said that he had bargained with Kemper Insurance Company regarding that exclusion endorsement of Da- villa and that he had gotten the insurance company to agree to a 6-month reprieve for Davilla. Gregory testi- fied: So, my reasoning for going to the company was this was a new account for me, these were the first three drivers that the insurance company was ex- cluding, and it was merely a process of we did not want to establish a precedent with the insurance company of allowing them to just come in and ex- clude drivers on an arbitrary basis; so we were trying to gain ground with the insurance company. And, at the same time, do a job for our customer. Introduced into evidence as Respondent's Exhibit 7 was a memo from the Kemper Insurance Companies to ---- GOLDEN BEVERAGE OF SAN ANTONIO, INC. 479 Gregory. The memo is dated August 22, 1978, and per- tains to Kemper's request that exclusion endorsements be executed on Valdez, Garcia, and Balderas. Introduced into evidence as Respondent's Exhibit 6 is a copy of a letter from Moore to Gregory pertaining to exclusion endorsements on Moran and Amaya. In addi- tion, Moore noted that Dickson had two accidents re- flected on his MVR. She requested the complete details on those accidents. It is noteworthy here that Moore did not similarly request the complete details with regard to the driving records of Moran and Amaya. In pertinent part, Moore's letter stated: Per our phone conversation of June 23, the MVR's that you sent us on Carlos Jesus Moran and Serafin Enrique Amaya are unacceptable to our company for coverage. Please find attached to this letter two driver exclusion endorsements for each of these people for you to deliver to the insured for his signature. Please have these endorsements signed and returned as soon as possible. The MVR on Raymond Edward Dickson reflects two accidents, one 7-20-76 and one 8-22-77. Please provide us with complete details of each of these accidents for our review of acceptability. Thank you very much for your prompt assist- ance. Landry acknowledged that in the fall of 1977 he had received communications from the insurance company which stated that certain drivers had to be excluded from insurance coverage. According to Landry, if the in- surance company indicated that the Respondent cannot hire someone, or that the Respondent should discharge someone, then the Respondent made no effort at keeping that person in its employment. Landry stated that the Respondent had never used high risk liability insurance coverage for its drivers, and Landry stated that he had never asked CTH about such coverage. Introduced as Respondent's Exhibit 10 was a copy of a letter from CTH to Landry. The letter is dated July 7, 1978, and thus it was received subsequent to the termina- tion of the employees involved in this proceeding. Nev- ertheless, the document is informative, particularly in view of the reinstatement questions raised by the issues in this proceeding. Note, for example, the opinion ex- pressed by CTH that insurance underwriting of a motor vehicle driver is not "an exact science," and "there can be extenuating circumstances and explanations of MVR violations that could possibly affect the acceptability of the risk." The evidence in this case indicates that none of the "extenuating circumstances" of the incidents reflected on the driving records of Hartbarger, Amaya, and Moran were disclosed to the insurance company prior to the termination of those three employees. The explanations regarding certain of those incidents were related by the witnesses at the hearing, however, and have been noted herein. In pertinent part, Respondent's Exhibit 10 states: In an effort to establish criteria and guidelines for you to follow concerning the employment of your truck drivers it is a generally accepted practice of the casualty insurance industry to decline risks where drivers have a three year driving record of two speeding violations and one "at fault" accident. Two "at fault" accidents with or without speeding violations would be even worse than the above. Also, since the Motor Vehicle Report (MVR) from the State of Texas shows not only a listing of the current three year violations and accidents, but also the total number of same for a five year period, a subject's five year record can affect an insurance underwriter's attitude toward a risk. Insurance un- derwriting of insured driver of vehicles never has been nor never will be an exact science, therefore there can be extenuating circumstances and explana- tions of MVR violations that could possibly affect the acceptability of the risk. I strongly recommend pre-employment discussion of the subject's driving record with full knowledge that an MVR will be ordered as soon as possible. This serves notice to the subject that you don't hire drivers with bad records and that you expect an ac- curate recall from him of his past violations. If you have any questions regarding any of the above points, do not hesitate to call Wayne Greg- ory or me. According to Landry, the Respondent's policy which had been formulated within 4 or 5 months prior to the hearing in this case was that a driver for the Respondent had to have a valid commercial driver's license with a record that is insurable by the insurance company. Introduced into evidence as General Counsel's Exhibit 10 was a copy of the driving record of David Kalinoski. That document indicates that Kalinoski had a total of four traffic convictions as of June 27, 1978. A subsequent driving record report for Kalinoski was introduced into evidence as General Counsel's Exhibit 9. The date of that report is December 12, 1978. That latter report shows another speeding citation on August 5, 1978, for Kalinoski. Kalinoski was still employed by the Respond- ent at the time of the hearing in this proceeding. Introduced into evidence as General Counsel's Exhibit 13 was the driving record of James Arthur Kyler. While that document indicates nine traffic citations for Kyler as of December 12, 1978, Landry testified that Kyler never drove a beer truck for the Respondent. Landry explained that Kyler was a helper, and at one time had been an employee of the Respondent. However, Moran had ob- served Kyler driving a company pickup truck on April 21, 1978, and again about 2 weeks before June 20, 1978. 1 credit Moran's observation of those two occasions. Introduced into evidence as General Counsel's Exhibit 14 was a copy of the driving record of Basilio Garcia. That report indicates 11 traffic citations for Garcia as of December 12, 1978. Landry testified that Garcia was at one time employed by the Respondent as a forklift oper- ator. According to Landry, Garcia did not drive a beer truck for the Respondent on a daily basis. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. The Termination of Hartbarger on June 1, 1978 Hartbarger had three conversations with the Respond- ent's supervisors prior to his employment by the Re- spondent. The first such conversation took place in December 1977 when Hartbarger spoke with both Landry and John Torbet. Hartbarger informed them he realized that his driving record at that point in time "wasn't up to par." Hartbarger told them that he had four tickets, but one of those tickets would go off his driving record on January 22, 1978, because 3 years would have elapsed since the ticket was issued. Hartbarger said that he would like to be considered for employment by the Respondent when his driving record was down to three tickets. Hartbarger showed them a copy of a teletype which Hartbarger had obtained on January 12, 1976, from a highway patrolman at the police station in San Antonio. A copy of that document was introduced into evidence as General Counsel's Exhibit 4. In part, it states: Landry showed Hartbarger a copy of his driving record, and Landry told him that he had six violations on it. Landry did not ask Hartbarger about any of them. Hartbarger testified that "all he was concerned with was that the insurance company had told him that I was un- insurable and had to go." A copy of Hartbarger's driving record prepared by the Texas Department of Public Safety was introduced into evidence as General Counsel's Exhibit 3. In part, it states: 05-21-75-Fayette County 11-25-75-San Antonio 06-29-77-San Antonio Speeding Speeding ACC-motor w/ motor 10-02-71 10-28-72 05-07-74 08-10-74 01-22-75 05-21-75 11-25-75 Ran red light San Antonio Speeding San Antonio ACC-Motor w/ motor, San Antonio Speeding Webb Co. Speeding Comal Co. Speeding Fayette Co. Speeding San Antonio Landry and Torbet told Hartbarger during the first conversation with him that they would like to talk with him when his driving record was reduced to three tick- ets. The second conversation prior to Hartbarger's em- ployment by the Respondent took place during the latter part of January 1978. That conversation was between Landry and Hartbarger. Landry informed Hartbarger that he was I week too late because Landry had just put another driver on a route, and he wanted to give that driver a fair opportunity. The third preemployment conversation took place during the latter part of February 1978 while Hartbarger was working as a dispatcher for the Yellow Cab Compa- ny. Torbet telephoned Hartbarger about 12 o'clock Sunday night and told Hartbarger that, if he wanted to go to work, to be at the Respondent's facility at 7 a.m. The next day Hartbarger reported for work with the Re- spondent at 7 a.m. There was no further conversation re- garding his employment prior to his going to work there. After Hartbarger had finished loading his truck during the afternoon of June 1, 1978, Hartbarger had a conver- sation with Landry about 6:05 p.m. Supervisor Martinez was present. Landry told Hartbarger that he was not going to be able to keep his employment with the Respondent be- cause the insurance company had finally got a copy of Hartbarger's driving record. Landry said that the insur- ance company had seen the record and "that they hit the ceiling" and wanted to know why someone with Hart- barger's type of driving record was employed by the Re- spondent. 4 total convictions-2 total accidents At the hearing, Hartbarger acknowledged having re- ceived the two speeding tickets referred to above. With regard to the motor vehicle accident on June 29, 1977, Hartbarger explained at the hearing that he was driving a taxicab at that time. He had parked his cab at the Hilton Hotel in San Antonio where he unloaded passen- gers. Another car made a quick turn into the parking area and caught the bumper of Hartbarger's cab as Hart- barger was pulling away from the curb. Hartbarger did not receive a traffic citation as a result of that incident. It should be noted here that General Counsel's Exhibit 3 differs in certain respects from General Counsel's Ex- hibit 4. For example, since General Counsel's Exhibit 4 was obtained on January 12, 1976, it does not show the incident at the Hilton Hotel which occurred later on June 29, 1977. In addition, General Counsel's Exhibit 3 only lists the three most recent occurrences in specific detail. Those are the two speeding tickets and the inci- dent at the Hilton, whereas General Counsel's Exhibit 4, which had been shown to Landry and Torbet by Hart- barger prior to his employment, goes back to January 2, 1971, and lists seven specific occurrences. During the termination conversation between Landry and Hartbarger, Landry told Hartbarger that the 3-year period did not apply with his insurance carrier. Landry explained to him that his insurance carrier went back 5 years and, based on the 5-year period, Hartbarger could not be insured. During cross-examination by the attorney for the Respondent, Hartbarger testified, "He just told me that the insurance company had hit the ceiling when they saw my driving record, and that I was no longer employed there, based on their findings." Hartbarger told Landry that this would be a tempo- rary firing because Hartbarger would be back. Hart- barger told Landry that he was like McArthur and said, "I shall return." Landry replied, "No, that's it, there ain't no more." During Hartbarger's employment by the Respondent, Hartbarger received no traffic citations. In addition, during that time Hartbarger's driving record was not mentioned to him by the Respondent until the time of his termination on June 1, 1978. GOLDEN BEVERAGE OF SAN ANTONIO, INC. 481 Landry stated that he was the one who made the deci- sion to terminate Hartbarger. According to Landry, he was aware at that point in time that Hartbarger was pass- ing out union cards. However, Landry claimed that that fact did not influence his decision. Landry stated that Hartbarger was terminated on the same day that he learned from Gregory that Hartbarger could not be covered by the insurance policy. Landry testified that the reason for his decision to terminate Hartbarger was, "because I was notified by Wayne Gregory from CTH that he was to be excluded from our insurance coverage." Landry acknowledged that Hartbarger was the first employee ever terminated by the Respondent because of a bad driving record. He further acknowledged that Amaya and Moran were the next two employees to be terminated for that reason.Landry stated that Hartbarger did tell him in December 1977 and January 1978 about his bad driving record at that time. He recalled that Hartbarger had told him that a ticket would be coming off of his record after a certain period of time. In February 1978, Landry requested through his insur- ance company that a copy of Hartbarger's driving record be obtained. Landry stated that he did not tell the insur- ance company whether Hartbarger was going to be em- ployed. Landry said that the driving record of Hart- barger was obtained by the Respondent in February 1978 shortly after Hartbarger was employed by the Respond- ent. He identified the document as General Counsel's Ex- hibit 3. I. The Termination of Amaya on June 20, 1978 When Amaya came in from his route on June 20, 1978, Landry told him that he wanted to talk to Amaya after Amaya had checked in. Amaya asked what he had done. Landry replied nothing, but he just wanted to talk to him. After finishing his checking-in process, Amaya spoke once again with Landry. Landry asked if Amaya's li- cense had been suspended. Amaya replied no, and he asked why. Landry said that Amaya had a bad driving record. Amaya responded that he did not see how that could be, because he was working as a truckdriver, and he had never had a warning or anything on his driver's license. Landry showed Amaya a copy of his driving record from the Texas Department of Public Safety. A copy of that record was introduced into evidence as General Counsel's Exhibit 5. In part, it states: Landry informed Amaya that the Respondent's insur- ance company would not cover him. He told Amaya that they went back 6 years. Amaya acknowledged to Landry that two of the accidents were Amaya's fault, but two of the other accidents were not. Amaya asked Landry if he could work in the ware- house. Landry replied that he needed people with com- mercial licenses who could drive trucks. Landry ex- plained that he did not need any helpers because he al- ready had too many helpers in the warehouse. At the hearing, Amaya offered various explanations with regard to the entries on General Counsel's Exhibit 5. With regard to the accident on March 7, 1976, Amaya explained that he was going north on Clover Road in San Antonio when another driver was going south on that road. The other driver did not wait for the turn signal and, instead, hit Amaya's vehicle on the side. Amaya received no traffic citation. On October 31, 1976, Amaya was in his car which was being driven by a friend, Joe Guitierrez. They were in the left-hand lane and were making a left turn on Blanco Road in San Antonio when another car tried to pass their vehicle on the opposite side. The other car hit the side of Amaya's car. Amaya did not receive any traffic citation. On May 21, 1977, Amaya was driving south on Cup- ples Road in San Antonio. It was raining at the time. Amaya estimated that he was going about 40 miles per hour, which was the speed limit. Amaya was driving his father's car. As Amaya made a turn, the car skidded and Amaya hit a post. Subsequently, when Amaya received a citation, Landry assisted Amaya in obtaining the services of a lawyer. On July 14, 1977, Amaya was driving a truck on Frio City Road in San Antonio. He was working for Industri- al Disposal. Amaya stopped his truck behind a city bus. He placed his truck in neutral gear, and he looked at a chart of his route. While he was doing so, the truck went forward and hit the city bus. Amaya did not receive a traffic citation. On March 11, 1978, Amaya was driving on his way to work for the Respondent. Amaya was late, and he drove 65 miles per hour in a 55-mile-per-hour zone. Amaya re- ceived a ticket for his speeding. Landry said that he was the one who made the deci- sion to terminate both Amaya and Moran. He testified that he did so "because I was notified by Wayne Greg- ory from CTH that they were to be excluded from our insurance coverage." At the time that he made the deci- sion to terminate both Amaya and Moran, Landry ac- knowledged that his understanding was that Moran was active in behalf of the Union. However, as to Amaya, Landry asserted that he did not know that Amaya was active for the Union. J. The Termination of Moran on June 20, 1978 About 4 p.m. on June 20, 1978, Moran returned to the Respondent's warehouse. He reloaded his delivery truck for the next day and came in to the facility to prepare his paperwork and turn in his money. At that point the dis- 03-07-76-San Antonio 10-31-76-San Antonio 05-21-77-San Antonio 07-14-77-San Antonio 03-11-78-San Antonio ACC-motor w/ motor ACC-motor w/ motor ACC-motor fixed obj ACC-motor w/ motor Speeding 2 total convictions-4 total accidents 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD patcher, John Hamilton, told Moran that Landry would like to see Moran when he was finished. After Moran completed his paperwork, Moran went to Landry's office with Supervisor Martinez. Landry told Moran that he would have to let Moran go because the insurance company would not insure Moran on driving the trucks. Moran asked if he could have a job with the Respond- ent as a helper or as a worker in the warehouse. Landry replied that he could not do that because he had got himself into a position where he had hired a number of people without a commercial license and with bad driv- ing records. Landry told Moran that "he had to get him- self out of it." Moran then asked Landry about a new employee, who was identified only by his first name as Charles, who had been hired a few weeks prior to that time. Moran said that he knew for a fact that Charles did not have a com- mercial license. Landry replied that that was true, but he was going to give Charles a chance to get his commer- cial license. Landry told Moran that he had too many traffic viola- tions, and that he could not insure Moran. He showed Moran a copy of his driving record, but he did not ask Moran to explain any matters on that record. Introduced into evidence as General Counsel's Exhibit 2 was a copy of Moran's driving record compiled by the Texas De- partment of Public Safety in Austin, Texas. In part, that document shows the following: 01-03-76-San Antonio Speeding 03-11-76-San Antonio ACC-motor fixed obj 11-05-76-Castle Hill Speeding 12-15-76-Bexar County Speeding 05-12-77-San Antonio Speeding 03-08-78-Castle Hill ACC-motor w/ motor 6 total convictions-4 total accidents At the hearing, Moran stated that his driving record had not changed during his employment by the Re- spondent. He said that his driving record was the same at the time of his termination as it had been when he was hired by the Respondent. At the time of his employment, he was not asked any questions by the Respondent per- taining to his driving record. With regard to one of the entries on his driving record for March 11, 1976, Moran explained at the hearing that the accident took place while he was in his car on his way to work at Texas-Pac. It was raining on that partic- ular day and the car in front of Moran "slammed his brakes on." Moran tried to avoid hitting that vehicle, and Moran lost control of his own car. Moran's car hit the highway fence and went into the opposite lane of traffic, but he did not hit anyone. Moran received no traffic citation as a result of that incident. With regard to the entry on his driving record for March 8, 1978, Moran explained at the hearing that the accident occurred while he was working as a driver- salesman for Royal Crown Cola. Moran was in the left- hand lane and was preparing to make a left turn. An- other vehicle was in the right-hand lane, and the driver of that vehicle attempted to turn left in front of Moran. Moran hit the other vehicle. The police arrested the driver of the other vehicle, and Moran received no traf- fic citation. On June 2, 1978, Moran initiated a conversation with Landry regarding his driving record. Moran recalled that the conversation took place on the day after Hart- barger had been fired. Moran inquired as to whether Landry had sent for Moran's driving record. Landry told Moran that he had sent for the driving records of all of the new drivers. Either at that time or in a later conversation, Moran said, "I did mention that my driving record was bad at the time." At the hearing, Moran explained that he had four speeding tickets which he knew about at that time. During cross-examination by the attorney for the Re- spondent, Moran acknowledged that he had denied to Landry that he was in the Union. Moran testified, "I denied it. I denied it for the reason I was protecting my job." The Texas Employment Commission held a hearing on August 16, 1978, in San Antonio regarding the appeal filed in the unemployment compensation claim pertaining to Carlos Moran. During the course of the hearing, Landry testified that Moran "could be insurable, but it would be at a higher premium." Following the appeals hearing that day, Landry and Eichler had a conversation on the sidewalk. When Eichler suggested that the matter be resolved by all three discharged employees returning to work, Landry reiterated his position that he was not going to pay a higher premium in order to have these people insured. K. Conclusions Based on the credited testimony as set forth in section D herein, I conclude that Landry told employees of the Respondent at the May 26, 1978, meeting not to talk about the Union on company time or company property. In doing so, Landry promulgated a no-solicitation rule which prohibited the Respondent's employees from en- gaging in union activities during their nonworking time on the company's premises. Such a rule infringes upon the rights of employees guaranteed by Section 7 of the Act, insofar as it applies to their nonworking time. It is noted that the no-solicitation rule was imposed within a few days after the commencement of union or- ganizational activity among the Respondent's employees, and further it is noted that the rule specified only talking about the Union as being the type of activity prohibited. No justification was offered for such a broad prohibition, and for a rule applicable only to talking about the Union. In these circumstances, I conclude that the Respond- ent violated Section 8(a)(l) of the Act. Cf. Litho Press of San Antonio, 211 NLRB 1014 (1974). See Pepsi-Cola Bot- tling Co. of Los Angeles, 211 NLRB 870 (1974); Essex In- ternational, Inc., 211 NLRB 749 (1974); Paceco. a Division of Fruehauf Corporation, 237 NLRB 399 (1978); Birming- ham Ornamental Iron Company, 240 NLRB 898 (1979). GOLDEN BEVERAGE OF SAN ANTONIO, INC. 483 As set forth in section D herein, I conclude that Landry interrogated Amaya on or about May 26, 1978, concerning his union feelings and activities and, in addi- tion, Landry created the impression of surveillance of employees' union activities by naming Hartbarger and Moran as the employees who were trying to start a union. I find that the Respondent thereby violated Sec- tion 8 (a)(l) of the Act. Paceco, a Division of Fruehauf Corporation, supra; Quemetco, Inc., a subsidiary of RSR Corporation, 223 NLRB 470 (1976); Willow Mfg. Corp.; Oak Apparel. Inc., 232 NLRB 344 (1977); Dillingham Marine and Manufacturing Co., Fabri-Valve Division, 239 NLRB 904 (1978); Hamilton Avnet Electronics, 240 NLRB 781 (1979). However, I conclude that the evidence does not sup- port the allegations of paragraph 7(b) of the General Counsel's consolidated complaint, but instead, as set forth in section D, that those comments were expressions of Landry's opinions to the effect that the Union could not guarantee that Amaya would receive more money or a helper on a daily basis, but that the Union would get money from Amaya. I find these expressions of opinion to be protected by Section 8(c) of the Act. As set forth in section E, 1, I conclude that Martinez interrogated an employee on May 29, 1978, and some- time in June 1978 about his union feelings and activities. I conclude that Respondent thereby violated Section 8(a)(1) of the Act. (See the cases cited above.) As set forth in sections E,4, and E,9, I conclude that Landry interrogated employees about their union feelings and activities, and the union feelings and activities of other employees of the Respondent. I find that the Re- spondent thereby violated Section 8(a)(1) of the Act. As set forth in section E,5, I conclude that Bouler cre- ated the impression of surveillance of employees' union activities by telling an employee that he knew the names of the employees who had signed union cards. I find that the Respondent thereby violated Section 8(a)(l) of the Act. As set forth in section E,8, I conclude that Stendebeck coerced an employee in the exercise of his Section 7 rights by telling him that the employee would not like a job where the employees were not represented by a union, and by telling the employee that Stendebeck had heard rumors that the employee was involved in union organizing activities. I find that the Respondent thereby violated Section 8(a)(1) of the Act. Based upon the documentary evidence and the cred- ited testimony set forth in section F herein, I conclude that a preponderance of the evidence does not support the allegations of paragraph 12 of the General Counsel's consolidated complaint. Instead, I conclude that the change in commission rates resulted from: (1) an increase in the price of Texas Pride Beer by the producer of that brand of beer, and (2) the marketing strategy of the Re- spondent-both of which were unrelated to the union ac- tivities of the employees of the Respondent. In considering whether the Respondent's terminations of Hartbarger, Amaya, and Moran were violative of Sec- tion 8(a)(1) and (3) of the Act, it is helpful to consider the court's holding in N.L.R.B. v. Ace Comb Company, 342 F.2d 841 (8th Cir. 1965): It has long been established that for the purpose of determining whether or not a discharge is dis- criminatory in an action such as this, it is necessary that the true, underlying reason for the discharge be established. That is, the fact that a lawful cause for discharge is available is no defense where the em- ployee is actually discharged because of his union activities. A fortiori, if the discharge is actually moti- vated by a lawful reason, the fact that the employee is engaged in Union activities at the time will not tie the employer's hands and prevent him from the exercise of his business judgment to discharge an employee for cause. . . It must be remembered that it is not the purpose of the Act to give the Board any control whatsoever over an employer's policies, including his policies concerning tenure of employ- ment, and that an employer may hire and fire at will for any reason whatsoever, or for no reason, so long as the motivation is not violative of the Act. In The Youngstown Osteopathic Hospital Association, 224 NLRB 574, 575 (1976), the Board held: Under Board precedent if part of the reason for terminating an employee is unlawful, the discharge violates the Act. As the Board and the courts have so often indicated, the issue is not whether there ex- isted grounds for discharge apart from union or protected concerted activities. That the employer has ample reason for discharging an employee is of no moment. An employer may discharge an em- ployee for any reason, good or bad, so long as it is not for union or protected concerted activity. Even if the discharge is based on other reasons as well, if the discharge is partly in reprisal for protected con- certed activity, it is unlawful. The principal issue here is whether there was a dis- criminatory motivation on the part of the Respondent in terminating Hartbarger, Amaya, and Moran, and in fail- ing to reinstate them. As stated in the foregoing court and Board decisions, the existence of a valid reason for terminating an employee is not a defense if the employer is actually motivated by the employee's union activities. Whether the request for the driving records of Hart- barger, Amaya, and Moran originated with the Respond- ent or originated with the Respondent's insurance carrier is just one of several factors to consider in determining the motivation of the Respondent. In the instant case, it is clear that the request for the driving records emanated from Moore of the Kemper Insurance Companies, but that fact alone does not determine the issue. It is simply one fact to consider. There are other facts to consider: (I) each one of the three alleged discriminatees engaged in union organiza- tional activities (see sec. C herein); (2) the Respondent had knowledge of their prounion feelings and activities (see secs. D and E herein); (3) the Respondent engaged in contemporaneous unfair labor practices independently violative of Section 8(a)(1) of the Act and exhibited animus towards the employees' organizational activities (see secs. D and E herein); (4) the timing of the termina- 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions of the three driver-salesmen at the outset of the union organizational activity in Hartbarger's case and within a few weeks of the commencement of union ac- tivity in the case of Amaya and Moran (see secs. C, H, I, and J herein); (5) the fact that no extenuating circum- stances or explanations were offered with regard to the driving records of Hartbarger, Amaya,and Moran, al- though the insurance company did request such informa- tion in other cases (see Resp. Exhs. 3 and 6) and the in- surance carrier later stated in a letter that such circum- stances and explanations can possibly affect an insurance company's acceptance of a risk (see Resp. Exh. 10); (6) the lack of consistent criteria and guidelines applied by the Kemper Insurance Companies, at least up to the time of the terminations of Hartbarger, Amaya, and Moran (see sec. G herein), and the lack of consistent action by the Respondent. 2 After considering all of the foregoing and the entire record herein, I conclude that a preponderance of the evidence establishes that the Respondent was motivated, at least in part, by the union activities of Hartbarger, Amaya, and Moran in deciding to terminate them. Therefore, I conclude that the Respondent has thereby violated Section 8(a)(l) and (3) of the Act. Having concluded that the three discriminatees were terminated in violation of Section 8(a)(1) and (3) of the Act, there arises the question of whether they are enti- tled to reinstatement in their former positions under the circumstances of this case. See Viele & Sons, Inc., 227 NLRB 1940, 1950-51 (1977), where the Board ordered the reinstatement of a discriminatee even though the insurance carrier of the re- spondent in that case regarded the employee, who had been a truckdriver, to be "uninsurable" and further, "in order for Luna to drive Respondent will have to pay a higher insurance premium and assign him to a specific truck." In another case, the Board ordered reinstatement al- though the truckdriver was "uninsurable" because of his driving record, and the insurance carrier had restricted him from the coverage of the insurance policy. Thomas McMahon, d/b/a McMahon's Sales Co., 167 NLRB 586 (1967). In still another case, the Board ordered reinstatement of a truckdriver who was "an undesirable insurance risk" in the opinion of that respondent's insurance agent, and who was told by the employer that he was to be placed in "a risk pool" by the insurance company. Stafford Trucking, Inc., 150 NLRB 1036 (1965). In accordance with the Board precedents, I conclude that Hartbarger, Amaya, and Moran are entitled to be re- instated by the Respondent. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2 Note that neither Bouler nor Davilla was ever excluded from cover- age. While Bouler does not drive a truck regularly, he drives an auto- mobile for the Respondent and a truck on a sporadic or irregular basis Note also that Kalinoski was still employed by the Respondent at the time of the hearing in this proceeding. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By terminating Daniel E. Hartbarger, Serafin E. Amaya, and Carlos Jesus Moran, and failing to reinstate them, because they engaged in union activities, the Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. By promulgating on or about May 26, 1978, and maintaining thereafter, a no-solicitation rule which pro- hibited employees of the Respondent from engaging in union solicitation during their nonworking time on the Respondent's premises, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By interrogating employees of the Respondent about their union feelings and activities, and the union feelings and activities of other of the employees of the Respondent, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. By creating the impression of surveillance among its employees with regard to the union activities of its em- ployees, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 7. By coercing an employee in the exercise of his rights guaranteed in Section 7 of the Act by telling him that he would not like a job where the employees were not represented by a union, and by telling the employee that the Respondent had heard rumors that the employee was involved in union organizing activities, the Respond- ent has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 8. The unfair labor practices set forth above affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Since I have found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, I shall recommend to the Board that the Respondent be ordered to cease and desist from engaging in the unfair labor practices. I shall also recommend to the Board that the Respond- ent take certain affirmative action in order to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the recommended: ORDER3 The Respondent, Golden Beverage of San Antonio, Inc., San Antonio, Texas, its officers, agents, successors, and assigns, shall: 3 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. GOLDEN BEVERAGE OF SAN ANTONIO, INC. 485 1. Cease and desist from: (a) Terminating employees and failing to reinstate them because they engaged in union activities. (b) Promulgating and maintaining a no-solicitation rule which prohibits employees of the Respondent from en- gaging in union solicitation during their nonworking time on the Respondent's premises. (c) Interrogating employees of the Respondent about their union feelings and activities, and the union feelings and activities of other of the employees of the Respond- ent. (d) Creating the impression of surveillance among its employees with regard to the union activities of its em- ployees. (e) Coercing employees in the exercise of their rights guaranteed in Section 7 of the Act by telling an employ- ee that he would not like a job where employees were not represented by a union, and by telling the employee that the Respondent had heard rumors that the employee was engaged in union organizing activities. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary in order to effectuate the policies of the Act: (a) Offer Daniel E. Hartbarger, Serafin E. Amaya, and Carlos Jesus Moran immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions of employment without the loss of their seniority or other rights and privileges. (b) Make whole Daniel E. Hartbarger, Serafin E. Amaya, and Carlos Jesus Moran for their loss of earn- ings, with appropriate interest thereon, which has result- ed from their termination by the Respondent with back- pay and interest to be computed in accordance with the Board's Decisions in F W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962); and Florida Steel Corporation, 231 NLRB 651 (1977). (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (d) Rescind the no-solicitation rule announced on May 26, 1978. (e) Post at San Antonio, Texas, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's representative, shall be posted by immediately upon receipt thereof, and be maintained by for 60 consecutive days thereafter, in conspicuous places, including all places where notices to are customarily posted. Reasonable steps shall be taken by to insure that said notices are not altered, defaced, or covered by any other material. IT IS FURTHER ORDERED that paragraphs 7(b), 7(f), and 12 of the General Counsel's consolidated complaint be dismissed because those allegations are not supported by a preponderance of the evidence. 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board"