Golden Beverage of San Antonio, Inc.

National Labor Relations Board - Board Decisions

Jun 10, 1981

256 N.L.R.B. 469 (N.L.R.B. 1981)

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"