Caribbean International News d/b/a El Vocero de P.R., and News Distributors of Puerto Rico, LLC.

National Labor Relations Board - Board Decisions

Dec 7, 2011

357 N.L.R.B. 1585 (N.L.R.B. 2011)

EL VOCERO DE PUERTO RICO, INC.
357 NLRB No. 133
1585
Caribbean International News Corporation, d/b/a El
Vocero De Puerto Rico, Inc., and News Distribu-
tor of Puerto Rico, LLC and Union De Periodis-
tas, Artes Graficas Y Ramas Anexas (Upagra),
Local 33225, affiliated with The Newspaper
Guild, CWA, AFL–CIO. Case 24–CA–11237
December 8, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On September 24, 2010, Administrative Law Judge
Michael A. Rosas issued the attached decision. The Re-
spondents El Vocero and News Distributor each filed
exceptions1 and a supporting brief, and the Acting Gen-
eral Counsel and Charging Party filed answering briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings2 and conclusions,3 to amend the remedy,4 and to

1 There are no exceptions to the judge’s findings that Caribbean In-
ternational News Corp. (El Vocero) violated Sec. 8(a)(1) and (5) of the
Act by breaching its December 26, 2008 agreement with the Union, and
by making unlawful unilateral changes to employee pay dates, sever-
ance pay, vacation, medical insurance benefits, and bumping rights.
2 The Respondents have implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
3 In adopting the judge’s finding that the Respondents are alter egos,
we agree that El Vocero and its alter ego News Distributor had “sub-
stantially identical” management, business purposes, operations, cus-
tomers, and supervision. Further, as the judge found, during News
Distributor’s first year of existence, it was “almost entirely dependent
on the continuous transfer of funds and in-kind contributions from El
Vocero,” as well as for its cost-free office space, supplies, and equip-
ment. However, we do not rely on the judge’s finding of common
ownership between the Respondents. Nonetheless, common ownership
is not a prerequisite for an alter ego finding. The Board has found an
alter ego relationship in the absence of common ownership where both
companies were either wholly owned by members of the same family
or nearly entirely owned by the same individual, or where the older
company maintained substantial control over the new company. See,
e.g., Summit Express, Inc., 350 NLRB 592, 594–595 (2007). We adopt
the judge’s finding that El Vocero maintained and exercised substantial
control over News Distributor.
We also find that El Vocero formed News Distributor for the pur-
pose of evading its collective-bargaining obligations. As the judge
found, El Vocero’s President Miguel Roca formed News Distributor in
March 2009, while the collective-bargaining agreement with the Union
was still in force, but waited until it expired to announce the decision to
subcontract the circulation work to News Distributor. Roca admitted
that he did not want to deal with the Union and, as the judge found,
unlawfully invited employees to deal directly with him while predicting
that any dispute over the plan to close the circulation department
adopt the recommended Order as modified and set forth
in full below.5
We reject Respondent News Distributor’s contention
that the complaint should be dismissed on the basis that
the Union filed the unfair labor practice charges in this
case for purposes contrary to the Act. News Distributor
alleges, in substance, that the Union has a financial inter-
est in The Daily Sun, an English language newspaper
published in Puerto Rico, and filed the charges as part of
an overall campaign to support that paper at News Dis-
tributor’s expense.6 Even assuming arguendo that these

“would [result in] an impasse.” These facts support our finding that
News Distributor was formed with the unlawful motive of avoiding El
Vocero’s responsibilities under the Act. Diverse Steel, Inc., 349 NLRB
946, 947 (2007); see also Midwest Precision Heating & Cooling, Inc.,
341 NLRB 435, 439 (2004), affd. 408 F.3d 450 (8th Cir. 2005) (“only
reasonable explanation” for decision to “go through the legal hoops of
creating a new corporation. . . .” was unlawful motive of reducing labor
costs by repudiating collective-bargaining agreement). Together with
the other evidence discussed above, this factor strongly supports our
finding that the two entities are alter egos.
4 Payments to employees arising from their unlawful discharges shall
be made in the manner set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010), enf. denied on other
grounds sub nom., Jackson Hospital Corp. v. NLRB, 647 F.3d 1137
(D.C. Cir. 2011).
Payments owing to employees as a result of the Respondents’ un-
lawful unilateral changes in contractual benefits shall be computed in
accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Hori-
zons for the Retarded, supra, and Kentucky River Medical Center, su-
pra.
Payments owing to contractual benefit funds as a result of the Re-
spondents’ unlawful unilateral changes shall be made in accordance
with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979).
To the extent that an employee has made personal contributions to a
benefit or other fund that have been accepted by the fund in lieu of the
Respondent’s delinquent contributions during the period of the delin-
quency, the Respondent will reimburse the employee, but the amount of
such reimbursement will constitute a setoff to the amount that the Re-
spondent otherwise owes the fund.
The Respondents shall also reimburse unit employees for any ex-
penses ensuing from their failure to make the required health insurance
premiums and pension fund contributions, as set forth in Kraft Plumb-
ing & Heating, 252 NLRB 891, 891 fn. 2 (1980), enfd. 661 F.2d 940
(9th Cir. 1981), such amounts to be computed in the manner set forth in
Ogle Protection Service, supra, with interest as prescribed in New Hori-
zons for the Retarded, supra, compounded daily as prescribed in Ken-
tucky River Medical Center, supra.
5 Finally, we shall modify the judge’s recommended Order to com-
port with the Board’s usual remedial provisions and to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010), enfd. 656 F.3d 860 (9th Cir. 2011). For the reasons stated in
his dissenting opinion in J. Picini Flooring, Member Hayes would not
require electronic distribution of the notice.
6 The judge found, and we agree, that News Distributor has failed to
establish that the Union’s relationship to The Daily Sun was detri-
mental to El Vocero.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1586
allegations are true, the Union’s motive for filing the
charges is irrelevant to the disposition of the allegations
in the complaint, which was issued by the General Coun-
sel in the exercise of his authority under Section 3(d) of
the Act. There is no contention, and no evidence what-
soever, of any improper motive on the General Counsel’s
part.
ORDER
The National Labor Relations Board orders that Re-
spondent Caribbean International News Corporation
d/b/a El Vocero de Puerto Rico (El Vocero), San Juan,
Puerto Rico, and its alter ego Respondent News Distribu-
tor of Puerto Rico, LLC, Carolina, Puerto Rico, their
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with the UPAGRA,
Local 33225, as the exclusive collective-bargaining rep-
resentative of the employees in the unit described in the
most recent collective-bargaining agreement in effect
from 1997 to 2001, between El Vocero and the Union,
over the decision to contract out the work of the circula-
tion department.
(b) Failing and refusing to fulfill and adhere to the
terms of the December 26, 2008 agreement regarding the
pension plan, cancer plan, intensive care plan, life insur-
ance, funeral insurance, long-term disability plan, and
gas allowance.
(c) Failing and refusing to bargain collectively with the
Union by unilaterally changing unit employees’ pay
dates, medical insurance, vacation, severance payments,
and bumping rights.
(d) Undermining the majority status of the Union by
telling employees that El Vocero did not want to bargain
with the Union but with the employees directly.
(e) Engaging in the creation of an alter ego for the pur-
pose of transferring circulation department bargaining
unit work to the alter ego and evading responsibilities
under the Act.
(f) Contracting out or otherwise transferring bargain-
ing unit work without bargaining with the Union.
(g) Permitting supervisors to perform bargaining unit
work.
(h) In any like or related manner interfering with, re-
straining, or coercing Respondents’ employees in the

Member Becker notes that News Distributor’s argument that the
judge should have made a finding that the Union filed the charge for an
unlawful purpose is also untimely, because News Distributor neither
raised this defense in its pleading nor litigated it at the hearing before
the judge. It is well established that the failure to raise an issue in a
timely fashion before the judge operates as a waiver of that argument.
See, e.g., Ang Newspapers, 350 NLRB 1175, 1181 (2007).
exercise of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
the unit employees.
(b) Fulfill and adhere to the terms of the collective-
bargaining agreement, including the temporary modifica-
tions set forth in the December 26, 2008 agreement re-
garding the pension plan, cancer plan, intensive care
plan, life insurance, funeral insurance, long-term disabil-
ity plan, and gas allowance.
(c) Rescind the unilateral changes to the unit employ-
ees’ pay dates, medical insurance, vacation, severance
payments, and bumping rights.
(d) Make employees whole, in the manner set forth in
the remedy section of the judge’s decision as modified
here, for any loss of earnings and other benefits suffered
as a result of the Respondents’ unlawful unilateral
changes to terms and conditions of employment.
(e) Rescind the unilateral contracting out or other
transfer of the bargaining unit work of the circulation
department and restore the status quo ante as it existed
prior to the elimination of the circulation department on
or about July 5, 2009.
(f) Within 14 days from the date of this Order, offer
the affected 107 employees of the circulation department
full reinstatement to their former jobs, without prejudice
to their seniority or any other rights and privileges previ-
ously enjoyed.
(g) Make the affected circulation department employ-
ees whole, in the manner set forth in the remedy section
of the judge’s decision as modified here, for any loss of
earnings and other benefits suffered as a result of the
Respondents’ unilateral actions in eliminating the circu-
lation department, contracting out or otherwise transfer-
ring its bargaining unit work and discharging its unit
employees.
(h) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(i) Within 14 days after service by the Region, post at
their San Juan, Puerto Rico, and Carolina, Puerto Rico
EL VOCERO DE PUERTO RICO, INC. 1587
facilities, copies of the attached notice marked “Appen-
dix.”7 Copies of the notice, on forms provided by the
Regional Director for Region 24, after being signed by
Respondents’ authorized representatives, shall be posted
by Respondents and maintained for 60 consecutive days
in conspicuous places, including all places where notices
to employees are customarily posted. In addition to
physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if Respondents customarily communicate with their em-
ployees by such means. Reasonable steps shall be taken
by Respondents to ensure that the notices are not altered,
defaced, or covered by any other material. If Respond-
ents have gone out of business or closed the facilities
involved in these proceedings, Respondents shall dupli-
cate and mail, at their own expense, a copy of the notice
to all current employees and former employees employed
by Respondents at any time since January 2009.
(j) Within 21 days after service by the Region, file
with the Regional Director for Region 24 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondents have
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to bargain with the
UPAGRA, Local 33225 (the Union), as the exclusive
collective-bargaining representative of the employees in
the unit described in the most recent collective-
bargaining agreement in effect from 1997 to 2001, be-

7 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
tween El Vocero and the Union, over the decision to con-
tract out the work of the circulation department.
WE WILL NOT fail and refuse to fulfill and adhere to the
terms of the December 26, 2008 agreement regarding the
pension plan, cancer plan, intensive care plan, life insur-
ance, funeral insurance, long-term disability plan, and
gas allowance.
WE WILL NOT fail and refuse to bargain collectively
with the Union by unilaterally changing unit employees’
pay dates, medical insurance, vacation, severance pay-
ments, and bumping rights.
WE WILL NOT undermine the majority status of the Un-
ion by telling employees that we do not want to bargain
with the Union but with the employees directly.
WE WILL NOT create an alter ego for the purpose of
transferring circulation department bargaining unit work
to the alter ego and evading our responsibilities under
Federal labor law.
WE WILL NOT contract out or otherwise transfer the cir-
culation department bargaining unit work without bar-
gaining with the Union.
WE WILL NOT permit supervisors to perform bargaining
unit work.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights listed above.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of the unit employees.
WE WILL fulfill and adhere to the terms of the collec-
tive-bargaining agreement, including the temporary mod-
ifications set forth in the December 26, 2008 agreement,
regarding the pension plan, cancer plan, intensive care
plan, life insurance, funeral insurance, long-term disabil-
ity plan, and gas allowance.
WE WILL rescind the unilateral changes to the unit em-
ployees’ pay dates, medical insurance, vacation, sever-
ance payments, and bumping rights.
WE WILL make unit employees whole for any loss of
earnings and other benefits resulting from our unlawful
unilateral changes to terms and conditions of employ-
ment.
WE WILL rescind the unilateral contracting out or other
transfer of the bargaining unit work of the circulation
department and restore the status quo ante as it existed
prior to the elimination of the circulation department on
or about July 5, 2009.
WE WILL, within 14 days of the Board’s Order, offer
the affected 107 employees of the circulation department
full reinstatement to their former jobs, without prejudice
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1588
to their seniority or any other rights and privileges previ-
ously enjoyed.
WE WILL make the affected circulation department em-
ployees whole for any loss of earnings and other benefits
resulting from our unilateral actions in eliminating the
circulation department, contracting out or otherwise
transferring its bargaining unit work and discharging its
unit employees, less any net interim earnings, plus inter-
est.

CARIBBEAN INTERNATIONAL NEWS
CORPORATION, D/B/A EL VOCERO DE PUERTO,
INC., AND NEWS DISTRIBUTOR OF PUERTO RICO,
LLC

Rebekah Ramirez and Maria M. Fernandez, Esqs., for the Gen-
eral Counsel.
Pedro J. Manzano Yates, Enrique R. Padro Rodriguez, and
Tristan Reyes-Gilestra, Esqs. (Fiddler Gonzalez & Rodri-
guez, P.S.C.), and Peter W. Miller, Esq. (Weinstein-Bacal &
Miller, P.S.C.), of San Juan, Puerto Rico, for Respondent
Caribbean International News Corporation.
Jose R. Gonzalez-Nogueras (Jimenez, Graffam & Lausell) and
Jorge C. Pizarro-Garcia, Esqs., of San Juan, Puerto Rico,
for Respondent News Distributor.
Miguel Simonet Sierra and Rosa M. Segui Cordero, Esqs.
(Simonet Sierra Law Office), of Guaynabo, Puerto Rico, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in San Juan, Puerto Rico, on February 2–4, March 1–
5, and April 12–14, 2010. The charge was filed June 4, 2009,
and amended several times thereafter. The complaint, which
issued November 30, 2009, alleges that Caribbean Interna-
tional News Corporation, d/b/a El Vocero de Puerto Rico,
Inc. (El Vocero) and News Distributor of Puerto Rico,
LLC (News Distributor) violated Section 8(a)(5) and (1) of
the National Labor Relations Act (the Act) by: (1) failing to
abide by the terms of a December 26, 2008 agreement relating
to employees’ pension plan, cancer plan, life insurance, funeral
insurance, long-term disability plan, and gasoline stipend, and
failing to bargain with the Union regarding these terms and
conditions of employment; (2) unilaterally changing employ-
ees’ pay dates, severance payments, vacation policy, and medi-
cal benefits, and denying employees their bumping rights; (3)
discharging the approximately 107 bargaining unit employees
who made up El Vocero’s circulation department and either
contracting or assigning their work to News Distributor, an
alter ego company with substantially identical management,
business purpose, operations, equipment, customers, supervi-
sion, ownership, and directors to El Vocero, and common labor
policies, premises, and facilities; (4) assigning supervisors to
perform bargaining unit employees’ work in El Vocero’s press
department; (5) failing to notify or bargain with the Union to a
good-faith impasse regarding the discharge of the circulation
department’s employees, the contracting or assignment of their
work, and the assignment of supervisors to the printing press
department; and (6) interfering with, restraining, and coercing
El Vocero’s circulation department’s employees in the exercise
of their rights under Section 7 of the Act by contracting out or
assigning their work.
El Vocero and News Distributor essentially deny the materi-
al allegations of the complaint. With respect to the closing of
the circulation department, they maintain that El Vocero’s deci-
sion and their ensuing relationship were premised on legitimate
business reasons, exigent circumstances, and the futility of
further bargaining with the Union.
Nearing the conclusion of the trial on April 14, 2010, the Un-
ion offered into evidence a printout from the website
www.networksolutions.com as Charging Party Exh. 4. I re-
ceived the document into evidence, deemed the objections by
El Vocero and News Distributor as motions to strike the exhib-
it, and directed letter briefs on the issue. After considering the
parties’ arguments in their letter briefs, I concluded that the
printout was self-authenticated, but found it unreliable in sever-
al respects and, in an Order, dated April 29, 2010, granted the
motion to strike the exhibit.1
On August 17, 2009, El Vocero filed a motion tendering its
financial statements for fiscal years 2006 through 2009.2 El
Vocero bases its late submission on the fact that General Coun-
sel’s Exhibit 80 consisted of the preliminary financial state-
ments for 2008 and 2009. It further alludes to the trial testimo-
ny of its outside accountant that their final versions would
probably issue within the next 30 to 45 days. The General
Counsel opposes the motion on the grounds that El Vocero did
not seek, by leave or stipulation, before or after the record
closed and posttrial briefs were submitted, to offer such infor-
mation. Relying on Section 102.48(d)(1) of the Board’s Rules
and Regulations, the General Counsel contends that the ten-
dered financial statements are inadmissible as newly discovered
evidence.3
The Board’s standard for receipt of newly discovered evi-
dence requires a showing that the evidence was in existence at
the time of the hearing, the party offering it was “excusably
ignorant” of it, and that party acted with reasonable diligence to
uncover and introduce the evidence. See Fitel/Lucent Technol-
ogies, Inc., 326 NLRB 46 fn. 1 (1998). The financial state-
ments, issued on June 29, 2010, were not in existence at the
time of the hearing. However, El Vocero’s accountant testified
that they would be issued within 30 to 45 days and, thus, El
Vocero was aware that such information would exist in the
relatively near future. Nevertheless, El Vocero never sought to
keep the record open for receipt of such information or mention
that it would seek to offer it after the record closed. Moreover,
El Vocero fails to demonstrate how the proffered statements
would lead to a different result from the preliminary statements,
which were received in evidence and discussed in testimony.
El Vocero’s motion is denied.

1 ALJ Exh. 2.
2 ALJ Exh. 3.
3 ALJ Exh. 4.
EL VOCERO DE PUERTO RICO, INC. 1589
On the entire record,4 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Charging Party, and the Respond-
ents, I make the following
FINDINGS OF FACT
I. JURISDICTION
El Vocero, a corporation under the laws of the Common-
wealth of Puerto Rico, with an office and place of business in
San Juan, Puerto Rico, has been engaged in the publication of a
newspaper in Puerto Rico and the eastern and central United
States, where it annually derives gross revenues in excess of
$200,000 and held membership in or subscribed to various
interstate news services. News Distributor, also a Puerto Rico
corporation, with an office and place of business in Carolina,
Puerto Rico, is engaged in the distribution of newspapers, mag-
azines, and compact discs in Puerto Rico, some of which adver-
tise nationally-sold products and/or subscribe to interstate news
services. In the past 12 months, News Distributor had gross
revenues in excess of $200,000.5 El Vocero and News Distrib-
utor admit and I find that they are employers engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. They also admit and I find that the Union, an affiliate of
the Newspaper Guild unit of the Communications Workers of
America (TNG/CWA), is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. El Vocero’s Operations
El Vocero, a 6-day general circulation print newspaper, was
founded by Gaspar Roca in April 1974. It is sold in Puerto
Rico and several cities throughout the eastern part of the United
States, including New York City, Miami, and Chicago. Since
the early 1980s, El Vocero’s main offices have been located at
a leased facility in Puerta de Tierra, San Juan, Puerto Rico.6 Its
press is located in Puerto Nuevo, Puerto Rico. In 1985, Gaspar
Roca sold El Vocero to a group consisting of Elliot Stein (70-
percent share), Martin Pompadur (15-percent share), and Henry
Crown & Co. (15-percent share). At that point, Stein, Pompa-
dur, and Gaspar Roca comprised El Vocero’s board of direc-
tors.7 Gaspar Roca continued to serve as El Vocero’s president

4 The General Counsel’s motion to correct the transcript, annexed to
her posttrial brief, filed June 14, 2010, is granted and received in evi-
dence as GC Exh. 130. In addition, motions submitting English transla-
tions subsequent to the close of the record by El Vocero, dated May 17,
2010, News Distributor, dated June 7, 2010, and the General Counsel,
dated June 9, 2010 (two motions), are granted and received in evidence
as El Vocero (V.) Exh. 40, News Distributor (ND) Exh. 86, and GC
Exh. 131–132, respectively.
5 The stipulation also referred to News Distributor’s business in the
Dominican Republic. (Tr. 12.)
6 There is no proof that El Vocero’s landlord, Saltiel & Co., has any
other connection to this controversy. (Tr. 260–261.)
7 Stein apparently has a power of attorney to vote Henry Crown &
Co.’s shares. (GC Exh. 11, 103; Tr. 258–259, 837, 903, 1025.)
until his death in April 2007. Upon his death, his son, Miguel
Roca (Roca), replaced him as president and board member.8
Roca continues to serve as El Vocero’s president and editor-
in-chief. Angel de Jesus is finance vice president. Maria Luisa
Roca is vice president for human resources.9 Joseph Rotger is
vice president for production, Ira Ellenthal is executive vice
president of sales and marketing, and Luis Ortiz is press super-
intendent. Until July 2009, Jorge Sanchez was El Vocero’s vice
president of circulation.10 Prior to July 2009, El Vocero had
approximately 300 employees. It presently has about 138 em-
ployees.11
Until July 2009, El Vocero’s circulation department distrib-
uted the approximately 100,000 daily copies of El Vocero in
Puerto Rico. Pedro Martínez, Sanchez’ principal assistant,
served as the department’s special projects and marketing man-
ager. The department was essentially operated by six regional
supervisors: Jose Fonseca, Ernesto Almodóvar, Hector Maldo-
nado, Edgardo Westerband, Felix Muñoz, and Reynaldo
Aviles; Rafael Reyes was the traffic lights supervisor. Office
support was provided by administrative assistant Evelyn Barral,
customer service representative Catalina Feliciano, and Data
Entry Supervisor Ivonne Rivera. The regional supervisors su-
pervised approximately 30–35 district managers. District man-
agers were unit employees and hired and supervised distribu-
tion agents, dealers, and carriers. The agents, dealers, and car-
riers were divided into two major distribution sections—the
metropolitan area and the inland areas. Depending on the area
to which they were assigned, distribution agents and dealers,
directly or through other agents, distributed the newspaper to
retail stores, newsstands, traffic light locations, and residential
newspaper carriers. Distribution agents and dealers performed
collections, were paid on commission, and received a gasoline
reimbursement rate or car allowance provided in the collective-
bargaining agreement (CBA) between El Vocero and the Un-
ion. Neither traffic light vendors nor newspaper carriers, how-
ever, were El Vocero employees.12
B. News Distributor’s Operations
News Distributor, a newspaper distribution company, pro-
vides distribution services to 14 media companies, but its pri-

8 Prior to that time, Roca was employed by El Vocero as an investi-
gative reporter, was in charge of El Vocero’s health and safety pro-
gram, and participated in other projects. (Tr. 1195–1196.) Roca is also
currently part owner of : (1) an oil trading company called Adriatic
Petroleum; (2) the Puerto Rico Soccer League; (2) a film production
company; (3) a film development company; (4) a power company; and
(5) Phoenix International Investment. (Tr. 403.)
9 Maria Luisa Roca is Gaspar Roca’s widow and Miguel Roca’s
stepmother. (Tr. 263–264.)
10 The parties stipulated that these individuals were 2(11) supervisors
during the time they were employed by El Vocero. (Tr. 16–21.) In
addition, the newspaper’s masthead sets forth their individual positions
at El Vocero. The latest one is dated July 31, 2009. (GC Exh. 76a; Tr.
785–794.)
11 Since July 2009, there have been other layoffs in addition to those
at issue in this case. (Tr. 274.)
12 There was no dispute as to the roles of circulation department em-
ployees prior to July 2009. (Tr. 39–40, 125–129, 133–135, 420, 470–
477, 484–485, 544–545, 703–704, 783–784.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1590
mary customer is El Vocero. The other companies, none of
which are owned by or affiliated with El Vocero, publish mag-
azines: Caribbean Business, The San Juan Weekly, TV Aqui,
Artes, Empresarios, Entorno, Identidad, Ritmo Musical, New
Condado, Arq. I. Tec, Latin Gospel, Arte Latinoamericano,
Photosports PR, and No Quejas.13
News Distributor commenced operations on July 6, 2009,
with Roca as president. At the time, it was operated rent free
out of El Vocero’s offices by Sanchez, News Distributor’s ex-
ecutive vice president. While performing that function,
Sanchez continued serving as El Vocero’s vice president for
circulation until July 30, 2009.14 In August, News Distributor
moved its operations to an office building in Carolina, Puerto
Rico. It operated rent-free at that location until December
2009.15 In January 2010, August Fields, an experienced news-
paper executive, replaced Roca as News Distributor’s president.
That month, News Distributor moved to another office building
pursuant to a sublease agreement with Prime Printing, a com-
pany owned by Roca.16 At that point, News Distributor began
paying rent. In March, News Distributor moved to another loca-
tion and was no longer subleasing from Prime Printing or any
other entity in which Roca had an ownership or other legal
interest.17
All of News Distributor’s regional team leaders were former
El Vocero regional supervisors, district managers or store man-
agers: Fonseca, Almodóvar, Avilés, Reyes, Westerband,
Muñoz, Maldonado and Abner Ortiz. Evelyn Barral, a secretary
in El Vocero’s circulation department, is an administrative
assistant for News Distributor. Catalina Feliciano, an office
clerk, worked in El Vocero’s circulation department as a cus-
tomer service clerk. Ivonne Rivera, an office team leader, was
the circulation department’s data entry supervisor. Finally,
Area Supervisor Juan Velez was a former temporary employee
of El Vocero.18

13 Although Sanchez vaguely recalled that News Distributor started
distributing Caribbean Business in or around August or September
2009, he provided no information as to when News Distributor began
distributing the other 12 magazines. (Tr. 91–95; ND Exh. 43–48.) In
any event, August Fields’ credible testimony that none of the other 13
publications were owned or managed by anyone connected with El
Vocero went unrefuted. (Tr.1686.)
14 The evidence is not clear as to the division of labor between Roca
and Sanchez, who remained listed on El Vocero’s masthead until July
30, 2009. However, together with Martinez, they were the primary
participants setting up News Distributors. (GC Exh. 76; Tr. 16.)
15 Roca and Sanchez were unaware as to whether News Distributor
paid rent to El Vocero or anyone else. (Tr. 43–44, 47, 333.) De Jesus,
on the other hand, believed that there was an agreement in writing
requiring News Distributor to pay for rent and telephone usage, but
could not produce it and then conceded that the alleged charges are still
outstanding. (Tr. 887–888.)
16 Aside from leasing commercial space, Prime Printing does not ap-
pear to have any other function. (Tr. 928.)
17 Fields’ credible and unrefuted testimony established that News
Distributor began paying rent to Prime Printing in late December 2009
until it moved to another location in March 2010. (Tr. 1634–1637; ND
Exh. 22.)
18 The roles of News Distributor’s key employees were also not dis-
puted. (Tr. 63–67, 779, 782–784, 822.)
Prior to January 2010, News Distributor had not developed
written employment policies and procedures and did not have
an employee manual. Indeed, News Distributors did not even
have written agreements with any of its clients. After Fields’
arrival, News Distributor adopted various policies relating to
operating and security procedures, an employee manual, and
personnel policies. Aside from the dual roles served by Roca
as president of both El Vocero and News Distributor until Jan-
uary 2010, no other officers of El Vocero have had any authori-
ty since July 2009 regarding the formulation of News Distribu-
tor’s labor relations policy or the terms and conditions of em-
ployment of its employees.19
C. The Union’s Relationship with El Vocero
The Union has represented El Vocero employees since the
newspaper was founded. It currently represents 68 to 70 of its
workers.20 Néstor Soto has been the Union’s president since
2002. Angel Baez is executive secretary. Luis Quintana is sec-
retary-treasurer.
The last collective-bargaining agreement (CBA) between El
Vocero and the Union was effective from June 2, 1997, to May
31, 2001, and extended by stipulations through May 31, 2009.
The appropriate bargaining unit included reporters, photogra-
phers, office personnel, distribution agents, maintenance em-
ployees, janitors, district managers, radio operators, dispatch
employees, group leaders, press helpers, press employees, ac-
countants, drafters, copywriters, production employees, and
classified employees. It excludes managerial staff, department
directors and supervisors, secretaries, advertisement sellers, and
newspaper deliverers (Art. I).21
The CBA’s pertinent provisions included: a 30-day prior no-
tification requirement to employees being laid off with a right
to such employee, if competent and capable of performing the
job, to bump another employee from another position based on
seniority (Art. IX); severance pay to laid-off employees equal
to 2 weeks of pay for each year of service, with the total sum
being no less than 8 weeks and no more than 52 weeks of their
regular pay; (Art. X); 23 paid holidays (Art. XIII); paid vaca-
tion days (Art. XIV); paid sick leave (Art. XV); a weekly car
allowance of $180 to $235 (Art. XX); and a $315 monthly con-
tribution towards an employee selected medical plan,22 inten-
sive care and cancer treatment plans, life insurance, pension,
funeral (“terminal”) insurance, retirement and savings plans,23
and disability insurance (Art. XXII). Not included in the CBA

19 There is no doubt that, prior to January 2010, News Distributor
had no policies or procedures in place. (ND Exh. 12–21; Tr. 74–75,
1654–1656, 1692–1694.)
20 The Respondents did not dispute Nestor Soto’s estimate as to the
size of the bargaining unit at El Vocero. (Tr. 430.)
21 GC Exh. 12.
22 Bargaining unit members selected “MAPFRE” as their medical
plan during the term of the CBA. (Tr. 298.)
23 The Union agreed in 2006 to relieve El Vocero of its financial
contributions towards employees’ retirement and savings plans. (Tr.
290.)
EL VOCERO DE PUERTO RICO, INC. 1591
was the Employer’s longstanding practice of paying its em-
ployees on Thursdays at or before noon.24
In addition to its functions as a labor organization, the Union
continues to provide significant support to another island news-
paper, the Puerto Rico Daily Sun (The Daily Sun). The Daily
Sun, a daily English-language newspaper founded in October
2008 is owned by the Cooperativa Prensa Unida (the Coopera-
tive). It essentially replaced the San Juan Star, which ceased
publishing in September 2008, as the primary English-language
newspaper in Puerto Rico. When the San Juan Star closed,
several of its employees, who were also union members,
formed the Cooperative, which then established The Daily Sun.
The Daily Sun publishes approximately 35,000 copies per week
and is marketed at 1300 locations throughout Puerto Rico.25
The Union and its parent organization, TNG/CWA, invested
heavily in and provided significant start-up funding for the
Cooperative.26 Upon commencing operations in October 2008,
The Daily Sun operated partly out of the Union’s facilities.
Many of The Daily Sun’s organizational, shareholder, and
board of directors meetings have been held at the Union’s of-
fices. The Union also continues to serve a vital role in The
Daily Sun’s ongoing operations by permitting three Daily Sun
employees to operate rent free out of the Union’s offices, use
its office equipment, and receive mail there. Soto has attended
at least one meeting of The Daily Sun’s board of directors and
was instrumental in helping it obtain local government grants
totaling $1,750,000 to cover payroll, as well as a $25,000 con-
tribution from the Newspaper Guild. Baez has also provided
assistance, personally loaning $3500 to The Daily Sun.27

D. El Vocero’s Financial Condition
The newspaper industry in the United States has been in a
state of economic flux. Over the past decade, the industry’s
advertising revenues have diminished. A typical print newspa-
per operation relies on advertising for 80 percent of its budget;
the remaining funding source comes from its circulation, which
includes subscriptions, newsstand sales, and single copy sales.
In 2008, the newspaper industry experienced its worst financial
performance ever. Advertising revenues decreased by $7.5
billion, or 16.5 percent from the previous year. The primary
reasons related directly to the Internet and cable television mar-
kets, both of which have grown substantially. There was a
diminished amount of revenue coming in the newspapers be-
tween 2000 and 2007. As with the Internet, cable television’s

24 Contrary to the General Counsel’s assertion, the CBA is silent on
the issue of a scheduled payday. On the other hand, El Vocero does not
dispute that this was its customary practice throughout the term of the
CBA and its subsequent extension.
25 ND Exh. 62.
26 ND Exh. 65.
27 The denial of Soto and Baez as to the extent of the Union’s sup-
port for The Daily Sun was less than credible. Javier Colon, the Presi-
dent of the Cooperative and the head of circulation at The Daily Sun,
reluctantly testified as to significant support provided by the Union for
The Daily Sun. (Tr. 575–576, 588, 1138–1141, 1346–1351, 1381–
1382, 1419, 1450–1455, 1572–1574, 1609–1613; ND Exh. 67, 71, 77,
82.)
advertising growth has resulted in a substantial contraction in
revenue for the newspaper industry, since fewer people now
read printed newspapers. As a result, rather than being able to
raise necessary revenue through advertising rate increases,
many newspapers have had to lower advertising rates. This, in
turn, has resulted in newspapers selling fewer pages and at
lower prices.28
El Vocero’s economic condition was no exception to the
state of the newspaper industry in the United States during
2007–2008. For fiscal years 2006–2007,29 El Vocero’s losses
amounted to approximately $7 million. From 2007 to 2008, the
accumulated deficit increased to $58,465,305. El Vocero had
approximately $10 million in account receivables. However,
its current liabilities in 2008 were over $29 million. El
Vocero’s ratio for 2008 was 0.30-1, an indicator that its finan-
cial situation over a period of 1 year worsened by a factor of
three times. Not enough money was coming in to support and
sustain El Vocero’s cost structure.30 Much of this financial
predicament was the lingering fallout from its ill-fated purchase
of the former El Tiempo. According to El Vocero’s most re-
cent preliminary financial report:

[El Vocero] has incurred recurring operating losses since
1998, mainly resulting from its attempt to start up and publish
the newspaper “El Mundo.” As a result of such losses, [El
Vocero] has stockholder’ equity deficit [amounting to]
$64,192,400 and a significant working capital deficiency
[amounting to] $32,137,000 as of April 30, 2009. The man-
agement’s plans and actions taken toward achieving future
profitable operations are as follows:
1. Since December 5, 1998 through April 30, 2006,
the Company’s stockholders and the former chief execu-
tive officer have made advances of funds to cover finan-
cial operational deficiency [amounting to] $2,200,000 and
$28,120,000, respectively.
2. Effective April 2000, [El Vocero] discontinued the
publication of the newspaper “El Mundo.”
3. [El Vocero’s] stockholders and the former chief ex-
ecutive officer were executed a subordination of the se-
cured notes payable in order to execute the security as-
signment to reflect the preferences of payment, as a guar-

28 El Vocero’s newspaper industry expert, Ira Ellenthal, testified as
to the financial condition of the newspaper industry in the United
States. He attributed much of the industry’s financial predicament to
the rising popularity of the Internet. Notwithstanding his lack of
knowledge as to newspaper circulation and advertising figures, news-
paper industry layoffs, and the extent of Internet usage in Puerto Rico
(Tr. 1078–1080), I found his opinion credible, uncontradicted, and
somewhat indicative of the fact that El Vocero’s financial problems
were typical of those of others in the newspaper industry’s financial
condition within the United States, including the Commonwealth of
Puerto Rico. (Tr. 1061–1065.)
29 It appears that El Vocero’s fiscal year runs from May 1 to April
30. (GC Exh. 80.)
30 I based my findings regarding El Vocero’s financial condition on
the credible and unrefuted testimony of El Vocero’s certified public
accountant, Jorge Aquino, and to the extent consistent therewith, the
testimony of de Jesus. (GC Exh. 80; Tr. 1068, 1071–1073, 1099–1101,
1112, 1165, 1192.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1592
antee, on behalf of the former newsprint supplier. There-
after, the [supplier extended] the credit to [El Vocero] with
a personal guarantee from the former chief executive of-
ficer limited to the amount of $1,000,000.31

When Roca became president on April 11, 2007, he met with
de Jesus and Jose Muñoz to discuss El Vocero’s financial con-
dition. Roca was informed that El Vocero was operating at a
deficit of at least $800,000 per month and needed to reduce
expenses. Expenses amounted to approximately $4 million per
month, while revenues fluctuated between $2,400,000 and
$3,200,000. Roca immediately met with the board of directors,
which also served as a meeting with El Vocero’s shareholders.
After discussing El Vocero’s financial condition, the group
decided that Roca would seek various approaches to reduce
expenses.32
Roca immediately sought to eliminate services that were not
essential to the newspaper’s operation. He evaluated every
department for potential cuts. Many freelance employees were
eliminated, and Roca directed the newspaper be reduced in size
by 8 pages and the amount of printed newspapers by 10 per-
cent. El Vocero was forced to purchase newsprint from El
Nuevo Día, its main competitor.33 In addition, Roca began
meeting with Union officials to brief them on El Vocero’s fi-
nancial situation and request concessions. Negotiations result-
ed in an agreement by the Union, dated August 2, 2007, to the
following concessions: a 6-month reduction in the car allow-
ance to 25 percent; a reduction in El Vocero’s contribution to
the medical plan to $317 for up to 1 year; and holding in abey-
ance gasoline stipend payments owed to the agents and salaried
employees. In exchange, El Vocero agreed to: allow yearly
financial audits by the Union, as well as provide the Union with
the information necessary to carry out such audits; grant unit
members six floating holidays; and renegotiate higher salaries
if it started to make a profit. The Union had an escape clause
with respect to any provisions that El Vocero failed to comply
with.34
E. El Vocero Seeks to Restructure the Circulation Department
Between April 2007 and the end of the year, Roca also
sought to increase advertising sales. However, he received a
negative response from the advertising agencies, who com-
plained that the newspaper was inefficiently distributed, often
arrived late, and failed to reach newsstands, residences, or even
entire areas of the island. Roca investigated those complaints
and determined that the distribution problems reached back to
2001. He responded by devising a plan with Sanchez to re-

31 GC Exh. 80, p. 18.
32 Roca testified that, after being briefed about the fiscal condition,
he met with four shareholders, although the 1985 sale of El Vocero
only referred to Stein, Pompadur, and Henry Crown & Co. While I do
not draw a negative inference regarding the absence of testimony by
any of the shareholders, I find it doubtful that Gaspar Roca, without an
ownership interest, would continue to pump millions of his own money
into El Vocero over the years without involving the shareholders. (Tr.
1196–1198.)
33 There is no evidence that the Union disputed these actions. (Tr.
1197–1198.)
34 GC Exh. 13.
structure the circulation department by increasing and improv-
ing the efficiency of El Vocero’s distribution without increas-
ing costs. The initial concept was to reclassify agents as mini-
dealers, who would employ straight commission distributors.35
On September 6, 2007, Sanchez and Roca met with several
union officials to discuss in detail the planned restructuring of
the circulation department. He stressed the newspaper’s need
to increase its circulation in order to increase revenue and avoid
drastic cuts, and provided the Union with Sanchez’ initial draft
proposal. The Union proposed changes to the proposal and the
parties agreed to have further negotiations on this issue. The
parties met several times a week to discuss the proposal.36
During the discussions, El Vocero proposed that independent
contractors or distributors, also referred to as minidealers, dis-
tribute the newspaper. The most important discussions focused
on whether minidealers, who would report to district managers
(or distribution agents), would be in the bargaining unit.37
On September 20, 2007, Sanchez met with the Union’s reor-
ganization committee. The committee’s members expressed
concerns and asked questions regarding certain details of the
proposed reorganization. The questions related to the proposed
duties and responsibilities of the independent distributors, min-
idealers, and district managers, the size of their respective terri-
tories, and the formulas for the payment of the sales commis-
sions.38
On September 24, 2007, the Union’s reorganization commit-
tee met with Roca and Sanchez. In pertinent part, the union
officials conceded that the current distribution process was not
working well, that they had not yet evaluated the process re-
garding the proposed reorganization, asked about the economic
impact on the circulation department regular employees, pro-
posed discussing the proposal as part of negotiations for a new
CBA. They expressed concerns that scheduled meetings to
brief employees should be done at different locations through-
out the island and not just at headquarters. Roca insisted that
he had a right to brief the employees at headquarters.39 On
September 27 and 28, Roca and Sanchez met with Union dele-
gates and other employees. The Union’s approach at these
meetings was “to listen and ask questions” and to eventually
request a vote by the membership once El Vocero’s final reor-
ganization plan was evaluated by union officials and dele-
gates.40

35 The Union did not refute Roca’s contention regarding the ineffi-
ciencies and problems with El Vocero’s distribution system. (Tr.
1198–1205.)
36 Soto did not dispute Roca’s concerns regarding the advertising
companies’ complaints and the need for improvement in circulation.
(V. Exhs. 1–2; Tr. 478, 554–556, 564, 1206–1209.)
37 Soto and Baez provided only general testimony about the negotia-
tions between September and November 2007. (Tr. 479–483, 642–
649.) As such, subsequent findings as to the chronology of events
leading up to a finalization of a proposed agreement are based on corre-
spondence between the parties.
38 The accuracy of the details in Sanchez’ memorandum to Roca re-
garding this meeting was not disputed. (V. Exh. 3.)
39 V. Exh. 7.
40 Several translations refer to the “Departamento de Circulación) as
the “Traffic Department.” (GC Exh. 43.) Interpretation of that term
EL VOCERO DE PUERTO RICO, INC. 1593
Roca and Sanchez followed up the meetings with the union
officials and delegates by scheduling a series of meetings to
brief employees and answer questions about the proposed reor-
ganization. The meetings were held on September 27–28, Oc-
tober 4, 5, 25, and 26.41 During this entire feedback period, the
only part of El Vocero’s plan to be reconsidered after Sanchez
received concerns from department heads was the proposed
utilization of part-time distributors.42
In November 2007, Roca and Sanchez met with the Union’s
delegates and outlined the reorganization proposal, as modified
after discussions with the Union. The presentation explained
changes in the organizational structure and duties of employees
in the circulation department, the consolidation of certain posi-
tions, and the anticipated impact on the newspaper’s distribu-
tion, applicable salary and commissions to be paid newly-
created positions. After receiving employee feedback at nu-
merous meetings, union officials agreed to submit the revised
proposal to the union membership for a vote. The membership
voted on the proposal on February 23, 2008 and rejected it.43
Undaunted, Roca asked Baez to have the Union work with El
Vocero to revise the first proposal in order to make it palatable
to the membership. Baez agreed and the parties renewed dis-
cussions in March 2008. Approximately 15 to 20 additional
meetings were held to discuss El Vocero’s second proposal.
The parties held approximately two meetings per week. The
discussions focused on how to eliminate overlapping between
14 distribution agents who handled subscriptions and 15 others
who handled single copy sales. El Vocero, seeking to create 29
smaller zones with distribution agents performing both func-
tions, incorporated the Union’s reconfiguration of those
zones.44 In March 2008, the Union informed its membership as
to the ongoing discussions with El Vocero regarding the reor-
ganization of all departments, not just circulation. Highlighted
was the Union’s admonition that only union officers were au-
thorized to negotiate with El Vocero’s management.45
On April 29, Roca submitted El Vocero’s second proposal to
the Union. Its most significant portion was a proposed reorgan-
ization based on classifications for the positions of division
leaders, dealers, district managers, minidealers (to replace dis-
tributing agents), and independent contractors. The proposal,
which was broken down into the smaller metropolitan and is-
land sections or zones, eliminated 38 agent positions, but 32
were temporary employees and of the remaining 7 regular em-
ployees, 6 would be transferred to district manager positions.46

throughout the trial indicates that it actually refers to the circulation
department.
41 V. Exhs. 4–6, 8, 10–11.
42 Sanchez’ November 13, 2007 memorandum to Roca reporting
such concerns is the only evidence of a change in position during the
latter part 2007. (V. Exh. 12.)
43 Neither Soto nor Baez disputed Roca’s description of the process
leading up to the generation of the first proposal. (Tr. 1218–1221.)
44 Although Roca’s assertion that union input was limited to chang-
ing certain language in a second proposal, the Union’s involvement in
proposing the redrawing of the zones evidenced a more substantive
involvement. (Tr. 1225–1229, 1243–1244, 1784–1786.)
45 GC Exh. 44.
46 V. Exh. 13.
Around May or June 2008, the union membership rejected El
Vocero’s second proposal. Soto and Baez told Roca that the
metro area employees accepted the proposal, but the inland
employees rejected the same.47 After the second proposal was
rejected by the union membership, Roca informed Soto and
Baez that, since the Union was resisting cost reductions, he
would have to terminate employees.48 Baez responded that “it
was better to fire employees than lose acquired rights.”49
Notwithstanding his plans to terminate employees after the
second proposal was rejected, Roca continued efforts to devise
yet another proposal which would be sufficiently palatable to a
majority of the Union’s membership. In that respect, he urged
the Union to resolve the differences between the island and
metropolitan area distributing agents. The Union acquiesced by
forming a committee of agents representing the various geo-
graphical areas. The committee met approximately five times,
but no agreement was reached. Thereafter, the reorganization
committee of El Vocero management and union delegates con-
tinued to meet until the summer of 2008. However, due to the
continued stalemate between union members from the island
and metropolitan sections, Soto instructed union delegates not
to engage in negotiations or submit counterproposals but, ra-
ther, listen and ask questions regarding El Vocero’s reorganiza-
tional proposals. As a last resort, El Vocero proposed a combi-
nation of reductions in fringe benefits and some restructuring
changes in the distribution areas. The union representatives,
however, maintained their insistence that El Vocero pay all
benefits under the CBA and reiterated their preference for
layoffs rather than acquiesce to El Vocero’s proposal to reduce
benefits. On August 5, 2008, Roca’s irritation was evident in a
memorandum to all personnel. In it, he railed at the Union’s
position, informed personnel about the likelihood that advertis-
ing revenue would decrease if circulation numbers did not im-
prove, and, as a result, El Vocero would be forced to lay off
approximately 75 positions in various departments.50
In the meantime, El Vocero began to encounter problems
meeting its obligations under the CBA. On several occasions
during September through November 2008, El Vocero was
unable to issue paychecks to employees on the scheduled date.
In several meetings, as well as letters, Roca informed employ-
ees and the Union that the late paychecks were due to a cash
flow problem caused by a combination of slow payments by
advertisers and cash-on-delivery payments to paper suppliers.51

47 Neither Soto nor Baez disputed Roca’s interpretation of the island
vs. metropolitan area workers preferences for the first and second pro-
posals. (V. Exh. 14; Tr. 1257–1266.)
48 While it is not disputed that El Vocero’s ad revenue was dropping
during this period, there is no indication that Roca shared that infor-
mation when he informed the Union that he needed to start terminating
employees in order to reduce costs. (Tr. 1247–1248, 1255–1256,
1266.)
49 Baez did not dispute Roca’s testimony as to the Union’s defiant
attitude regarding the possibility of layoffs. (Tr. 1254–1256.)
50 Soto’s testimony essentially confirmed Roca’s testimony that the
Union, ensconced behind the provisions of the CBA which was effec-
tive until 2009, chose to refrain from bargaining over a third proposal.
(Tr. 581–585, 1253–1254, 1266; V. Exh. 15.)
51 GC Exhs. 24–27.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1594
Additionally, El Vocero had stopped contributing to its em-
ployees’ pension and 401(k) plans, and providing employees
with gas subsidy payments. In August and September 2008, El
Vocero and the employees’ health insurance provider notified
employees that various insurance coverages for cancer treat-
ment, intensive care, life insurance, funeral insurance, and
long-term disability insurance had been canceled for nonpay-
ment. The Union protested the nonpayment and cancellations
in letters, dated July 31 and August 5, 2008, and insisted that El
Vocero resolve the nonpayment problem.52
At some point in September, discussion regarding El
Vocero’s reorganizational proposal became intertwined with
efforts to resolve the problems with late salary payments and
nonpayment of benefits. Roca agreed to provide the Union with
another proposal by September 15 for consideration by the
union membership. In anticipation of that proposal, Soto
scheduled an emergency meeting of the union membership for
September 20. The proposal arrived on September 19, a day
before the meeting. Roca was permitted to address the proposal
before the membership and actually articulated several pro-
posals to reduce expenses, all involving reductions in salary or
benefits. All were rejected, but the Union agreed to continue
meeting with Roca to find a solution. Union leaders responded
with a counterproposal but Roca, in turn, rejected that and
submitted yet another proposal to the Union on September 25.
In a letter dated the same day, Soto acknowledged receipt of the
proposal and noted that he and a group of employees were still
reviewing El Vocero’s financial statements. He added that,
although the financial analysis was still in progress, a prelimi-
nary review revealed two types of expenses that should be
eliminated or reduced: work performed by 23 subcontractors,
which was previously performed by employees and could be
redistributed among unit members, for a savings of about
$50,000; and payments to Gaspar Roca’s relatives.53
On September 27, the union membership convened again to
consider alternative proposals submitted by Roca, all of which
involved salary reductions. The proposals were rejected. In a
letter, dated September 29, Soto informed Roca of the result,
but noted that the Union wished to meet with him to continue
efforts to find possible alternatives to address El Vocero’s fi-
nancial problems. He also warned Roca that if El Vocero again
failed to pay employees on time, as required by the CBA, em-
ployees would report for their shifts but would not perform any
work.54
The parties met again on October 17, 2008. At that meeting,
after Roca briefed the union officials as to El Vocero’s finan-
cial condition, the Union requested that he “submit alternatives
that could help to resolve the situation” along with “several
adjustments in expenses that have been indicated in other occa-
sions.” Soto also advised Roca that any further proposal need-
ed to differ from those already rejected by the membership.
Soto outlined these developments in a letter, dated November 3,

52 GC Exhs. 18, 35–36, 52, 72.
53 GC Exh. 57.
54 GC Exh. 58.
2008, and reminded Roca that the Union still had not received
his proposal.55
Unbeknownst to the Union, El Vocero was moving forward
with layoffs. In a memorandum to the human resources de-
partment, dated October 30, 2008, Sanchez, citing “the reorgan-
ization” of El Vocero and “the emergency due to economic
reasons,” provided a list of 40 circulation department employ-
ees to be laid off on November 7, 2008. They consisted of 33
district managers and 7 division leaders; 30 were regular em-
ployees and 10 were temporary employees.56 In a letter, dated
November 24, 2008, and faxed the same day, Roca notified the
Union as to how the circulation department would operate in
the absence of the discharged employees.57 Soto immediately
responded by noting that the parties met on many occasions
and, at each one, El Vocero presented a different reorganization
proposal and none were “subject to negotiation since . . . there
is a [CBA] between the parties in effect; yet what you intend to
do is to open the [CBA’s] negotiations, to which the Union
opposes.” Nevertheless, Soto agreed to convene the member-
ship to consider El Vocero’s reorganizational and cost-cutting
proposals.58 The same day, the Union also informed its mem-
bership about El Vocero’s “unjustified” layoffs and attempts to
impose a reorganization of the circulation department by con-
solidating distribution agent positions and have them perform
the work of laid-off district managers. It also advised members
that supervisors could not force distribution agents to distribute
newspapers in “down” routes, except as specified under the
CBA.59
After receiving notice of the layoffs, Roca agreed to meet
with the union leaders on November 25, 2008. Shortly before
the meeting, Soto sent a letter to Roca outlining the Union’s
position.60 At the meeting, Roca reiterated El Vocero’s wors-
ening financial condition and the need to reduce costs; the Un-
ion maintained its position that the CBA prevented El Vocero,
in the absence of an agreement, from consolidating or reorgan-
izing bargaining unit positions or work. The meeting was fol-
lowed by an exchange of accusatory correspondence between
Roca and Soto. However, the parties continued to meet into
December 2008. There was little progress regarding union
concessions until the layoffs actually took effect on December
5, 2008.61
By letters, dated November 26 and December 4, 2008, Roca
and Soto exchanged accusations about the rigidity of their re-
spective positions. Roca charged that the Union was unreason-
ably rejecting his reorganizational proposals. Soto denied that
assertion, and insisted the Union considered all of El Vocero’s
proposals and submitted its own counterproposals, which Roca

55 GC Exh. 59.
56 V. Exh. 16.
57 V. Exh. 17.
58 GC Exh. 47.
59 GC Exh. 45.
60 GC Exh. 48.
61 Roca’s testimony and corroborating documentation indicate that
the employees were not actually laid off on November 7, as Sanchez’
October 30 memorandum suggests, but rather, on or about December 5.
(GC Exh. 41; V. Exhs. 18–19; Tr. 1271–1273, 1276–1277.)
EL VOCERO DE PUERTO RICO, INC. 1595
rejected.62 Notwithstanding the contentious exchanges, the
parties met continuously during the period of December 15–19,
2008. Those efforts produced a tentative agreement, subject to
ratification by the union membership. On December 20, 2008,
the membership voted to ratify the stipulation, subject to El
Vocero’s reaching an additional agreement with the Newspaper
Guild regarding the employees’ pension plan. Roca was noti-
fied of this development by letter, dated November 22, 2008.63
Notably, during the various meetings in 2008 regarding El
Vocero’s reorganizational proposals, Roca never mentioned the
possibility of having to eliminate the circulation department or
contract out that department’s work to another company. Nor
did he assert that the parties had reached impasse. He did,
however, mention at one point in 2008 his interest in creating
new companies, but assured union officials that such a plan
would not affect bargaining unit employees.64
F. The December 26 Agreement
On December 26, 2008, El Vocero and the Union executed a
written agreement in which the Union agreed to economic con-
cessions in exchange for the reinstatement of some benefits and
policies, effective January 1, 2009, for a 12-month term (the
December 26 Agreement). The concessions included: a reduc-
tion of annual vacation days from 27 to 20; a reduction of an-
nual sick leave from 22 to 15 days; reduced overtime pay from
double to time and a half; a 5-percent wage reduction; a 5-
percent commission reduction for commissioned agents; a 10-
percent reduction in reimbursed car expenses; and an additional
year of no 401(k) payments. In return, El Vocero was to re-
sume making contributions into the employees’ pension plan,
albeit at a reduced rate during the first 3 months of 2009, and
reinstate the cancer, intensive care, life insurance, funeral in-
surance and long-term disability plans, and the gasoline sti-
pend. The December 26 Agreement provided that those bene-
fits would be reestablished as of January 1, 2009. In exchange
for the concessions, El Vocero would also reinstate 12 district
managers and 1 prepaid subscriptions manager, and convert 5
part-time employees to permanent full-time employees. In
addition, El Vocero would reinstate 12 employees previously
laid off from the circulation department.65
By letter, dated December 29, 2008, Roca informed El
Vocero’s employees about most of the concessions in the De-
cember 26 Agreement, and noted that the “approved savings of
this agreement will permit us to reinstate the benefits that were
not fulfilled in the past.”66 Approximately $125,000 of the
$500,000 in expenses that El Vocero sought to reduce came
from the Union’s concessions. Roca also implemented immedi-
ate cost-saving measures by reducing the newspaper’s printed
pages and sections from two to one, and the amount of distribu-

62 GC Exh. 60; V. Exh. 19.
63 GC Exh. 40.
64 It is undisputed that the possibility of a circulation department
closing never made it on the agenda in 2008. (Tr. 139, 649–650, 738.)
65 GC Exh. 14.
66 GC Exh. 21.
tion.67 The Union issued its own summary version of the De-
cember 26 Agreement to the membership on December 30,
2008.68
G. El Vocero Fails to Comply with the
December 26 Agreement
El Vocero’s financial condition did not improve as it entered
2009.69 Sales receipts in December 2008 were 30-percent less
than in December 2007 and numerous advertisers were refrain-
ing from making commitments for 2009. January and February
2009 sales continued on a downward spiral—25-percent less
than the comparable periods in 2007, while paper costs were
increasing. Its expenses were substantially higher than the
advertising and circulation income, and the accumulated deficit
had increased to $64,192,385.70
El Vocero’s continuing cash flow problem and difficulty
paying expenses caused its paper supplier, once again, to with-
hold delivery after accumulating a balance of $3 million. Like
many other struggling newspapers, El Vocero began seeking
ways to reduce its operating costs. Pursuant to the December
26 Agreement, El Vocero reinstated employees and reduced
employees’ wages, vacation, sick leave, overtime pay, and car
allowance on January 1, 2009. Without notifying or consulting
with union leaders, however, El Vocero decided not to make
the payments necessary to reinstate the cancer plan, intensive
care plan, life insurance, funeral insurance, and long-term disa-
bility insurance. It also failed to make the requisite contribu-
tions into employees’ pension and 401(k) plans, and did not
reinstate employees’ gas subsidy, vacation days, and sick
days.71
By letters, dated January 22 and March 9, 2009, the Union
demanded El Vocero’s compliance with the terms of the De-
cember 26 Agreement. The parties met several times, but El
Vocero still failed to comply with the terms of the December 26

67 Roca’s estimates of the savings resulting from the union conces-
sions and reduction in newspaper print and distribution were not dis-
puted. (Tr. 1279–1282.)
68 GC Exh. 41.
69 El Vocero’s newspaper industry expert, Ira Ellenthal, provided an
overly broad description of financial problems faced by the newspaper
industry in the United States. There is no dispute, however, that many
newspapers closed due to a drastic decline in circulation and thousands
of newspaper employees were laid off in 2009. (Tr. 1065–1068.)
70 De Jesus credibly testified that El Vocero was hampered by a lack
of working capital, an accumulated deficit of $64,192,385, operating
losses of $1,373,500 in 2008 and $4,164,640 in 2009, and net operating
losses of $3,213,791 in 2008 and $5,727,020 in 2009. Based on that
financial information, he concluded that El Vocero is in a liquidation
basis of accounting and, therefore, the likelihood of the Company con-
tinuing to operate is minimal. (Tr. 1161, 1163, 1166; GC Exh. 80.) On
the other hand, the weight of the financial evidence and testimony by
de Jesus strongly suggests, given his close, ongoing involvement with
El Vocero’s finances and Roca, that Roca was well aware of the prob-
lem in obtaining commitments from advertisers for 2009 when he
signed the December 26 Agreement—a mere 5 days before the new
year.
71 This finding is based on the consistent testimony of Roca, Soto,
and Baez, as well as correspondence confirming nonpayment of bene-
fits. (Tr. 295–298, 521–523, 636–642, 916–917, 1071–1075, 1111–
1114, 1192, 1282–1284.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1596
Agreement.72 Roca explained to the Union during meetings in
March and April that El Vocero’s financial situation was get-
ting worse and it was unable to pay its debts, including meeting
payroll, and might have to close if a solution was not found.
Additionally, memoranda advising employees that paychecks
would be issued a week late were distributed in April and May
2009. The union leaders were not impressed and bargaining
unit members started engaging in work stoppages.73
By letter, dated June 1, 2009, the Union notified Roca that
the union membership voted on May 30 to terminate the De-
cember 26 Agreement due to El Vocero’s noncompliance.74 El
Vocero did not respond and employee benefits continued to be
adversely affected. By letter, dated June 16, 2009, El Vocero’s
insurance agent informed the Union that El Vocero owed
$308,129 in past due premiums for the medical insurance
plan.75 On June 30, 2009, without consulting the Union, El
Vocero changed the employee-selected medical plan from
MAPFRE to MCS, effective July 1, 2009, and reduced its
monthly medical plan contribution for each employee from
$315 to $213.93 per month.76 The Union received another
insurance notice, dated July 2, 2009, detailing unpaid premiums
of $74,567 for cancer and funeral coverage, and their fruitless
efforts in collecting from El Vocero.77 Roca explained to Soto
and Baez that El Vocero did not have enough funds to pay the
past due premiums and he was searching for another insurance
provider to provide the coverage. Soto continued to insist that
El Vocero comply with the terms of the December 26 Agree-
ment.78
In addition to its noncompliance with the December 26
Agreement, El Vocero failed to meet its wage obligations under
the CBA. On numerous occasions from September 2008
through July 2009, El Vocero did not pay employees at or
around the customary noon time on Thursdays but, rather, 1, 2,
and 3 weeks later. On several of those occasions, including
March 4, April 21, May 14, and June 19 and 25, 2009, Roca
explained to employees that the delays were attributable to late
payments by advertisers. The Union protested these delays as
violations of the CBA, but to no avail.79 Similarly, on May 13,

72 GC Exhs. 30, 42.
73 Although de Jesus’ provided a credible explanation of El Vocero’s
2009 asset-ratio of 10 cents in assets for every dollar of liabilities, his
contention that El Vocero would have to close by May or June 2009
unless it took drastic action is belied by the fact that El Vocero re-
mained in business. Moreover, there is no evidence that Roca provided
the union with El Vocero’s asset-ratio information during their meet-
ings in early 2009. On the other hand, testimony by Soto and Baez did
nothing to dispel the notion that union leaders were chastened by the
earlier membership votes, causing them to pull back from any joint
initiatives with management. (Tr. 295–296, 1074, 1163–1164, 1285–
1287, 1760–1761; GC Exhs. 31, 33, 80.)
74 GC Exh. 53.
75 GC Exh. 54.
76 GC Exhs. 19–20.
77 GC Exh. 51.
78 Roca credibly testified that he searched for alternative coverage in
January and February 2009, but conceded that he was not concerned
about working together with the Union on this issue—his priority was
to keep the newspaper open. (Tr. 298, 303–304, 528, 1287–1289.)
79 GC Exhs. 24–31, 33–34, 42.
2009, El Vocero, without consulting the Union, reduced sever-
ance pay to a rate of $250 per week.80
H. Roca Forms News Distributor and Five Other Companies
In February 2009, around the same time El Vocero was re-
neging on its obligations under the December 26 Agreement,
Roca decided that he would drastically reduce the newspapers’
operations. By early March, he took the first steps toward that
objective by filing to create six new entities.81 Roca asked
Sanchez to run the daily operations of a media distribution
company to be called News Distributor.82 On March 4, 2009,
Roca initiated the incorporation process for News Distributor
and five other new entities: La Prensa Libre de Puerto Rico,
LLC (La Prensa), a print media company; Multi Services Com-
pany, LLC (Multi Services), a media utility company; Multi-
Media Management, LLC (MMM), a media management com-
pany; Multi Media Enterprises, LLC (MME), an Internet and
web design management company; and Prime Printing LLC
(Prime Printing), a publishing company. All shared the same
initial business address and resident agent.83 All were incorpo-
rated in April 2009.84 News Distributor, MME, MMM, and
Prime Printing are owned by Phoenix International Investments
LLC, which is wholly-owned by Roca and Wade Investors,
LLC (Wade Investors).85
News Distributor was incorporated and held its initial board
of directors meeting on April 23.86 Its stated business purpose
was the distribution of newspapers and magazines produced by
other companies.87 News Distributor was registered with the
business address of its resident agent, Peter Miller, Esq., El
Vocero’s counsel.88 Its initial investment capital was $10,000
from Wade Investors.89 The board of directors consisted of

80 GC Exh. 15.
81 I find it incredible that an unnamed investment group approached
Roca about abandoning El Vocero and starting a new newspaper, yet El
Vocero’s board of directors convinced him to stay and agreed to let
Roca work for the new newspaper. (Tr. 337–338, 1284, 1289–1290.)
82 Roca provided vastly conflicting testimony as to when he first
spoke to Sanchez about leaving El Vocero to run News Distributor. He
initially testified that he offered the opportunity to Sanchez in early
March, but later in the trial attempted to shift that date to mid-April. I
credit the earlier version as consistent with the weight of the credible
evidence. (Tr. 360–361, 1295–1296.) Sanchez was unsure as to when
Roca actually offered him the position, but did not testify as to when
Roca first discussed the concept with him. (Tr. 137, 162–163.)
83 GC Exhs. 63–68.
84 GC Exhs. 63–68.
85 Roca’s lack of knowledge as to the owners of Wade Investors was
unremarkable until he professed to have no idea if Sanchez was a
shareholder. (Tr. 325, 327–329, 380, 1011.) I found that testimony
less than credible, given Roca’s close working relationship with
Sanchez and his reliance on him to assume responsibility for News
Director.
86 GC Exhs. 50, 67.
87 There was no credible evidence that News Director distributed a
significant amount of other newspapers and magazines for publishing
companies other than El Vocero. (Tr. 12, 1632–1633, 1691.)
88 GC Exh. 50.
89 There is no testimony or evidence that either Roca or Phoenix In-
ternational invested any money in News Distributor. (Tr. 328, 1019–
1024.)
EL VOCERO DE PUERTO RICO, INC. 1597
Roca, Stein, Pompadur, Alejandro Longo, and Paul Healy,
Wade Investor’s president. At the meeting, the board elected
Roca as president, Sanchez as vice president and treasurer, and
Jose Sepúlveda as secretary. The board resolved, among other
matters, to solicit the distribution services of El Vocero, the San
Juan Star, and Caribbean Business, a weekly periodical.90 Roca
served as president of News Distributor from April 29, 2009,
until January 2010.91 He was joined by Sanchez, who contin-
ued to be listed on El Vocero’s masthead as its vice president of
circulation until July 30, 2009.92 Roca continues as president
of La Prensa, Multi Services, MMM, MME, and Prime Print-
ing.93
I. Roca Lays Groundwork for Elimination of the
Circulation Department
As Roca prepared to launch the aforementioned companies,
elimination of the circulation department continued to be Ro-
ca’s preferred course of action.94 By closing the circulation
department, he expected El Vocero to save approximately
$400,000 to $500,000 per month.95 Unbeknownst to the Union,
Roca was laying the groundwork for that objective by exhaust-
ing El Vocero’s obligations within the collective-bargaining
process. The first step in this endeavor was to inform the Un-
ion, by letter, dated April 15, 2009, that El Vocero intended to
renegotiate the CBA. This letter did not make reference to the

90 GC Exh. 109.
91 Roca testified that, during his tenure as president of News Distrib-
utor, his role was essentially a nominal one. (Tr. 227, 333–334, 1603–
1606.) However, Roca’s continued involvement in News Distributor’s
operations is evidenced by the fact that, until January 2010, his fax
number at El Vocero served as News Distributor’s fax number. (Tr.
169–170.) Aside from the involvement of Roca, Sanchez, and Mar-
tinez as El Vocero employees, there is no other evidence of direct in-
volvement in News Distributor’s affairs by El Vocero’s management.
(Tr. 397–401, 1692–1693.)
92 GC Exh. 76.
93 There was no indication as to whether La Prensa or MME had any
relationship to News Distributor. (Tr. 274–276.)
94 Roca testified that de Jesus advised him in late March or early
April that they would need to lay off a substantial number of employees
or close by April. However, no steps were taken to lay off anyone or
close operations, and he allegedly “spent a good part of the end of
April, beginning of May to look at the impact, the economic
impact of that” and only then decided that “the best course of
action would be to subcontract out the distribution of the news-
paper.” (Tr. 306–311, 1292–1294.) Moreover, de Jesús contradicted
Roca’s testimony by estimating a later point in time—the summer of
2009—as the point when El Vocero would have to close if it did not
drastically reduce expenses. (Tr. 1117.) Roca also testified that he
refrained from discussing the circulation department’s closing with the
Union in April–May 2009 because he was engrossed in dealing with El
Vocero’s economic difficulties at that time and the Union’s bad-faith
bargaining over the circulation department’s reorganization in 2007–
2008 indicated that further bargaining would be futile. (Tr. 1254–1256,
1322.) Roca’s assertions to the contrary, the weight of the credible
evidence supports a finding that he did not first decide to close the
circulation department in late April, early or mid-May, but rather, in
February when he began working on creating companies to assume
responsibility for the functions of the circulation department.
95 Neither the General Counsel nor the Union challenged the accura-
cy of Roca’s estimate. (Tr. 1293.)
circulation department or any type of reorganization.96 On
April 23, 2009, Soto acknowledged receipt of Roca’s request,
responded that the Union was “working on our proposal of
changes” and reminded him that “on March 9, 2009, and March
19, 2009, we requested to see the financial statement of the last
six (6) months up to this moment; we have not had access to the
same.” He threatened to file an unlawful labor practice charge
if such information was not received within 5 days. Finally, he
added that the Union’s proposals for changes to the CBA “may
vary according to the proposal that we receive on behalf of the
Company.”97
Roca ignored the Union’s request for financial information
and proceeded to sidestep the Union. In June 2009, he held
separate meetings with employees in each department. During
these meetings, Roca informed employees that he would pro-
vide El Vocero’s proposed collective agreement to each shop
steward, and advised the employees to meet with their stewards
to discuss El Vocero’s proposal and provide feedback to the
Union’s bargaining committee. During his meeting with ap-
proximately six photo journalism department employees, Roca
discussed the newspaper’s predicament and the changes he was
planning for the circulation department. Roca also informed
the employees that he planned to establish three companies to
handle El Vocero’s administration, distribution, accounting,
and payroll. One employee, Sebastian Marquez, raised the
Union’s likely opposition to any plan involving termination of
the circulation department’s employees. Roca responded that
his negotiations with the Union would end up at the Labor De-
partment, where they would be declared at an impasse.
Marquez then asked Roca what he advised the employees to do.
Roca recommended that, since he did not have good communi-
cation with the union leaders, the employees should approach
the Union as a group and insist they be permitted to negotiate
directly with him.98
By letter, dated June 11, 2009, El Vocero formally notified
the Union of its intention to eliminate the circulation depart-
ment, enclosed a proposed CBA, and offered to bargain over
the “effects of this decision.”99 El Vocero also informed the
Union that it had asked three companies to submit business
proposals by June 19, 2009, to provide circulation services
starting on June 29, 2009, and invited the Union to submit a
proposal as a cooperative. The letter ended by confirming that
the parties would begin negotiations at the Department of Labor
on July 1 and 3, 2009.100 On June 11, Roca also sent a letter to
all 107 employees of the circulation department informing them
of their department’s elimination and inviting them to create a

96 GC Exh. 61.
97 GC Exh. 56.
98 The specific and unwavering testimony of Geraldo Bello, who
participated by speakerphone, and Marquez indicated that Roca’s asser-
tive role at the meetings sought to undercut the Union’s role in effectu-
ating the institutional change he sought. (Tr. 599, 602–604, 619–621.)
Roca generally denied telling bargaining unit members that he wanted
to bargain directly with them, but did not refute the specific allegations
of Bello and Marquez. (Tr. 1759–1760.) Accordingly, I credit the
testimony of Bello and Marquez over Roca’s version.
99 V. Exh. 21.
100 GC Exh. 22.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1598
cooperative of employees capable of competing for El Vocero’s
distribution by June 19, 2009.101
J. El Vocero’s Selection of News Distributor
On June 15, 2009, El Vocero initiated a bidding process for
the distribution, circulation, and collections functions of the
newspaper commencing June 29. Proposals were due by June
19.102 Five companies were invited to submit proposals, in-
cluding News Distributor. Roca’s letter to News Distributor
was mailed to a post office box and addressed to Sanchez as its
vice president of operations.103 On the same day, the Union
requested a delay in the bidding process. El Vocero acquiesced
and Roca issued another letter to prospective bidders, dated
June 17, 2009, extending the date to submit proposals to June
26, 2009, and informing them that distribution would start on
July 6, 2009.104
Four companies submitted proposals: News Distributor, Is-
land Wide Periodicals, Distribution Services Company, and
Distribution Integration Services.105 On June 29, Roca selected
News Distributor, whose proposal, dated June 24, 2009,
claimed that the company had experience in the distribution
industry and was prepared to commence distribution.106 In fact,
at the time he submitted News Distributor’s proposal, Sanchez
was still employed by El Vocero and News Distributor was a
company on paper only. It had no clients, employees, office
space, or bank account. Its proposal did, however, include the
lowest cost to perform the distribution and collections for the
newspaper.107
Subsequent to the award of the contract to News Distributor,
El Vocero retained a trucking company, TLC Logistics, Inc.
(TLC), to deliver bundled newspapers to distribution agents in
the far southern and western parts of the island. Distribution
agents picked up the newspapers for the remaining areas. With
the circulation department eliminated and News Distributor not
prepared to commence distribution, El Vocero contracted with
several other trucking companies to pick up and distribute the
newspaper for several weeks. El Vocero employees continued
to perform several functions previously performed by the circu-
lation department: distributing the newspaper for prepaid ac-
counts and courtesy copies; processing new subscriptions and
cancellations; and bundling and wrapping, which was trans-
ferred to the production department. El Vocero’s arrangement
with TLC has continued through February 2010. Under News

101 GC Exh. 23.
102 GC Exhs. 3, 5.
103 Given Roca’s significant role in creating News Distributor, I did
not find credible testimony by Sanchez and Roca that the latter was
skeptical about News Distributor’s ability to compete for the distribu-
tion work because it was still in the formative stages. (Tr. 218, 1296.)
104 Testimony by Roca and Sanchez was uncertain on this point, but
it appears that the Union was asking for more time to attempt to fore-
stall the decision to close the department—not to submit a proposal.
(Tr. 142, 1301–1304; V. Exhs. 24–25; GC Exh. 4.)
105 V. Exhs. 6, 26–29.
106 The correspondence between Roca and Sanchez constitutes the
extent of the agreement. (GC Exh. 8; Tr. 90.)
107 This finding is based on the testimony of Sanchez and Roca, as
corroborated by the correspondence. (Tr. 144–146, 218–219, 230,
1321; GC Exhs. 92, 122, 125; V. Exh. 30.)
Distributor’s operations, the newspaper is picked up at the press
by independent contractors for distribution, with the exception
of areas covered by TLC, prepaid accounts and courtesy copies.
At the time of the hearing, News Distributor utilized approxi-
mately 24 independent contractors to deliver El Vocero. These
entities or individuals delivered the newspaper themselves or
utilized carriers do it on their behalf. They also performed
collections on a weekly basis.108
Around the middle of June, while still El Vocero’s vice pres-
ident of circulation, Sanchez began the process of recruiting El
Vocero staff to work at News Distributor. Sanchez’ first hire
was Martinez as News Distributor’s operations manager. Both
remained El Vocero employees as they proceeded to recruit
distributors. Their meeting at a bookstore with distributing
agent Jose Rivera revealed the strategy. Sanchez told Rivera
that El Vocero planned to create a new newspaper focusing on
law enforcement coverage and that a distribution company
would be needed to distribute that newspaper, as well as other
publications. Rivera was told that he would have an opportuni-
ty for greater earnings with the new distribution company and
they asked him to have a follow-up meeting with Roca. Rivera
met with Roca about a week later. Roca urged him to resign
from El Vocero and operate his own company distributing and
collecting in a specific territory. He would be awarded a con-
tract by El Vocero and given $5000 in start-up funding for the
business. Roca also told him that he would no longer deal with
the Union and urged him to meet with El Vocero’s area super-
visor, Jose Fonseca, to sign an independent contractor agree-
ment. The agreements were issued, and Rivera met with him at
Plaza Las Americas, a shopping mall. When Rivera arrived at
the food court, he saw Fonseca talking to a coworker, with
another waiting. While Rivera waited his turn, he obtained a
copy of the independent contractor agreement and reviewed it.
When he finally got around to discuss the agreement with Rive-
ra, Fonseca asked him to sign it. Rivera refused, insisting he
needed more time to review the document and left. Three days
later, Fonseca called Rivera about the contract and Rivera in-
formed him that he was not signing it.109
K. Elimination of the Circulation Department
On June 15, 2009, the parties met at the Puerto Rico De-
partment of Labor where El Vocero requested that the Union
bargain over the effects of the decision. However, several un-
ion representatives were not available and the parties agreed to
postpone the negotiations to July 1. On July 1, El Vocero and
union representatives met, but could not agree on how to pro-
ceed. El Vocero’s representatives declared they would not

108 De Jesus thought that El Vocero began to use TLC in July 2009.
(Tr. 894.) However, the more certain testimony of Roca and Sanchez
indicates TLC was picking up bundles at the press prior to that date.
(GC Exh. 79; Tr. 103–106, 116, 121–124, 188, 192–194, 350–353,
837–838, 894.)
109 Rivera’s credible and unrefuted testimony established the process
followed by Sanchez and Martinez in soliciting and processing the
independent contractor agreements, as well the statements made to him
by Roca. (Tr. 709–717, 719–722, 723, 728–732; GC Exhs. 77, 122.)
Sanchez, on the other hand, provided only a general description of that
process. (Tr. 60–68, 163–165.)
EL VOCERO DE PUERTO RICO, INC. 1599
negotiate over their decision to close the circulation depart-
ment, but were amenable to discuss the economic effects of that
decision on bargaining unit members. The Union, on the other
hand, wanted to negotiate the decision to close the circulation
department, as well as a new CBA, and was not interested in
simply discussing the effects of that decision. The parties met
again on July 3, but their positions remained unchanged. On
July 5 and 6, without first informing the Union, El Vocero rep-
resentatives verbally notified the 107 bargaining unit members
employed in the circulation department that they were termi-
nated. Termination letters followed on July 6.110
Later that night, several union representatives and employees
congregated outside El Vocero’s press facility. After a while,
Soto, Baez, and the Union’s attorney entered the facility and
spoke with Sanchez. They told him that the employees were
there to work and distribute El Vocero. Sanchez said he would
pass that along to Roca, but added that the newspaper’s distri-
bution had already been assigned to a company named News
Distributor.111
L. Printing Press Employees Placed on Vacation
The production department consists of approximately 24
employees, including pressmen, pressmen’s’ aides, mechanics,
and mechanics’ helpers. As part of El Vocero’s plan to reduce
expenses, most of that department’s employees were placed on
involuntary leave on or around July 6. On that day, at Ortiz’
direction, human resources’ assistant, Wandi Gomilla,112 placed
dispatcher Luis Quintana on a 30-day involuntary vacation
leave. On July 7, 2009, 12 other production employees were
placed on involuntary vacations ranging from 11 to 14 days.
Quintana’s involuntary vacation, however, lasted 46 days.113
The involuntary leave directives, coinciding with layoffs in
the circulation department, did not go over well. That evening,
Quintana and other employees gathered outside the press facili-
ty from approximately 6:30 p.m. until midnight. During that
time, Quintana observed Ortiz through the open loading bays as
he operated the press machinery inside the facility.114 During

110 Although Mendez’ unrefuted testimony established that he was
the first employee to receive a termination letter, it is not disputed that
employees began receiving verbal notices on July 5. (Tr. 313–314,
401, 537–540, 651–655, 705, 742, 752, 755–756, 778, 1302, 1306,
1323–1325, 1755; V. Exh. 31; GC Exh. 78.)
111 This finding is based on Soto’s credible and unrefuted testimony.
(Tr. 540–542.)
112 El Vocero denied in its answer that Wandi Gomila is a supervisor
or agent. The testimony proved otherwise. Although Gomilla func-
tioned as Maria Luisa Roca’s assistant, she represented El Vocero in
arbitration proceedings before the Puerto Rico Department of Labor.
Gomilla also implemented departmental action by informing employees
of changes in employment status. (Tr. 691, 756, 778.)
113 I did not credit Roca’s testimony that employees became anxious
over the controversy and voluntarily requested leave time. (Tr. 315.)
Press Superintendent Luis Ortíz confirmed Quintana’s testimony that,
at his direction, press employees were placed on involuntary vacation
by the human resources department. (GC Exhs. 69–70, 110–121; Tr.
680–687, 1089–1090.)
114 Ortiz, whose testimony focused on events on and after July 7, did
not refute Quintana’s detailed and credible testimony regarding his
his 12-year tenure as press superintendent, Ortiz oversaw the
work of the pressmen and pressmen’s aides, but only performed
their work whenever they needed assistance.115
M. Antonio Mendez’ Bumping Rights
Antonio Mendez, an office clerk in the circulation depart-
ment, was among the employees terminated on July 6, 2009.
By letter to Maria Luisa Roca, dated August 12, 2009, Mendez
exercised his bumping rights under the CBA by requesting
appointment to any of three positions: proof reader; classified
office clerk; and pressman helper. Mendez had the requisite
seniority for the position and, with a Bachelor’s Degree in
business administration, was qualified to perform the work. In
a letter, dated August 25, Maria Luisa Roca denied Mendez’
bumping request on the ground that his position was eliminated
after the CBA expired. Mendez responded in a letter, dated
August 31, insisting (1) that his bumping rights remained valid
even after the CBA expired and (2) that Local Law 80 required
employers to give preference to employees for vacant positions
based on seniority.116
N. MMM’s Assumption of El Vocero’s Administrative
and Other Functions
MMM, with Roca as president, began operating the first
week of July 2009 from El Vocero’s facilities, with 24 former
El Vocero employees, and funded primarily by El Vocero. All
24 were former El Vocero employees in the administration,
accounting, classified, and management departments, and con-
tinued performing essentially the same functions they had at El
Vocero. MMM’s employees included: human resources Assis-
tant Wandi Gomilla; accountants Jose Muñoz, Marisol Ramos,
and Miguel Capjohn; Credit Manager Jose Sepulveda; cashier
Jose Lopez; and information technologist Rodrigo Mella.117 El
Vocero and News Distributor were and continue to be MMM’s
only clients. Neither El Vocero nor News Distributor has ever
paid the agreed upon monthly service fee to MMM.118 Nor has

operation of the printing press on July 6. (Tr. 688–689, 697–699,
1093–1094.)
115 I credited Quintana’s testimony that it was not Ortiz’ regular
function to operate the printing press, although he occasionally assisted
with bargaining unit work. (Tr. 689, 699.) Ortiz testified that he oper-
ated the printing press every day, but clarified that it is actually his
responsibility to “oversee [his] employees to ensure that they perform
their duties and they do so efficiently, in addition to having them use
the equipment in the correct manner.” He also conceded being contin-
uously instructed by Gaspar Roca “let them deal with it [a]nd if they
can’t do it, then help them.” (Tr. 1083–1085, 1094–1095.)
116 El Vocero did not refute Mendez’ contention that he was other-
wise qualified and entitled to bump up to any or all of the three listed
positions. (Tr. 755–760; GC Exhs. 73–75.)
117 These findings are based on testimony by Sanchez, Roca, de Je-
sus and Munoz regarding the functions of MMM and the previous
functions performed by its employees at El Vocero. (Tr. 68–70, 266–
271, 274–276, 282–284, 379, 832–834, 859–864, 919–927, 930–938,
942–944; GC Exhs. 98, 122–123, 126.)
118 I did not credit de Jesus’ assertion that MMM charges its service
fee to El Vocero by offsetting the amounts owed from the cash advanc-
es, as no documentation was produced to corroborate such offsets. (Tr.
865–870.) Nor was Munoz, a person in a position to know that at
MMM, aware of such payments. (Tr. 948.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1600
MMM ever paid rent for the office space it continues to use at
El Vocero’s facility.119 Neither de Jesus nor Munoz knew the
amount owed by MMM to El Vocero.
In conjunction with its initiation of the bidding process for
the circulation department’s work on June 15, 2009, El Vocero
arranged to transfer portions of its accounting, payroll, human
resources, data entry, security, purchasing, and maintenance
operations to MMM for a monthly service fee of $20,000. De
Jesus signed the agreement on behalf of El Vocero; Jose Sepul-
veda signed it on behalf of MMM. MMM’s address was listed
as a post office box.120 On the same day, News Distributor
entered into a virtually identical agreement with MMM for the
latter to manage its payroll, accounting, and human resources
operations for a monthly service fee of $15,000. That agree-
ment was executed by Sanchez on behalf of News Distributor
and Sepulveda, also a News Distributor officer, on behalf of
MMM. No address was provided for News Distributor.121
O. News Distributor’s Assistance from El Vocero
Employees laid off from El Vocero’s circulation department
were on the payroll until July 13, 2009.122 On July 14,
Sanchez, on behalf of News Distributor, entered into employ-
ment agreements with 12 of those former employees. Sanchez
hired five more former El Vocero employees in September.123
In addition to employing former El Vocero employees, News
Distributor also contracted former El Vocero employees as
microentrepreneurs. As of March 2010, News Distributor uti-
lized 4 “microbusinesses” and 16 individuals as independent
contractors. The contact person for eight of the independent
contractors was previously employed by El Vocero as union
employees in the circulation department. Moreover, 11 of the
independent contractors signed their agreements between June
1 and 16, 2009.124
El Vocero’s connection to News Distributor did not end with
the movement of personnel. In order to assist News Distributor
become operational, El Vocero provided the new company with
computers and related software, office equipment, and furni-
ture. News Distributor eventually paid $9,338.19 to El Vocero,
but most of the equipment and furniture was provided for free.
In addition, from July 1 through December 31, 2009, El Vocero
provided News Distributor with free advertising soliciting in-
dependent distributors and newspaper carriers. The contact
information in the ads directed interested persons to call El
Vocero’s customer service department or specifically listed El
Vocero’s area supervisors.125

119 Notwithstanding de Jesus’ testimony that MMM was obligated to
pay rent to El Vocero, there was no written agreement to that effect and
rent has never been paid. (Tr. 865, 897–898.) Again, Munoz was
unaware of any such payments. (Tr. 945–946, 868–870, 950–953; GC
Exhs. 81–82, 86.)
120 GC Exh. 87.
121 GC Exh. 88.
122 GC Exh. 123.
123 GC Exh. 126.
124 See stipulation by the parties. (Tr. 1047–1049.)
125 Approximately 40 percent of News Distributor’s office furniture
and equipment, and 15 percent of its total value, was purchased from El
In addition, since July 2009 and continuing through at least
January 2010, El Vocero has transferred money to News Dis-
tributor. On July 7, 2009, Roca directed de Jesus to extend a
$90,000 “cash advance (line of credit)” to MMM on behalf of
News Distributor at 8-percent interest.126 In August 2009, El
Vocero made cash advances totaling $654,201.01 to MMM on
behalf of News Distributor, while MMM transferred
$20,751.12 to El Vocero.127 In September 2009, El Vocero
transferred $787,395.45 to MMM on behalf of News Distribu-
tor, while MMM transferred $15,009.17 to El Vocero.128 News
Distributor’s general ledger reflects that El Vocero transferred
$88,030.53 to it in October 2009, while News Distributor trans-
ferred $5,000.22 to El Vocero.129 In November 2009,130 El
Vocero transferred $703,622.49 to MMM, while MMM trans-
ferred $155,836.37 to El Vocero.131 In December, El Vocero
advanced News Distributor $60,000.45, while News Distributor
transferred back $104,024.41. In January 2010, News Distribu-
tor transferred $90,000.13 to El Vocero, while receiving an
advance of $30,000.15. There was no scheduled payment plan
and, according to News Distributor’s general ledger, it contin-
ued to owe money to El Vocero until January 13, 2010, when it
overpaid the balance due by about $38,000.132
El Vocero also kept the new employees at News Distributor
and MMM covered by its medical insurance plan, MCS. MCS
charges El Vocero the total amount of health insurance expens-
es owed for all employees included in the plan. Although El
Vocero charges MMM for that expense, that amount has never
been paid.133

Vocero. (GC Exhs. 76(b)–(g), 90; Tr. 50, 52, 54, 150–151, 171–172,
184–1185, 226, 362, 799–805, 1639–1641, 1644, 1758–1759.)
126 Roca issued two identical instructions to de Jesus, except that one
was for MMM and the other was for News Distributor. (GC Exhs. 81–
82, 92.)
127 The debits are listed at entries on August 5–7, 11, 13–14, 17, 19–
21, 25, and 27–28; the credits totaling $20,751.12 are listed at entries
on August 28. (GC Exh. 83.)
128 See debits listed at entries for September 1–4, 8–11, 15–18, 22–
25, 28, and 30; a $15,009.17 credit is listed in an entry on September
17. (GC Exh. 84.)
129 News Distributor’s general ledger does not nearly reflect the en-
tries recorded in El Vocero’s bank records, but it is the only record of
transactions in October. (GC Exh. 17.)
130 The dates in the first column, which appear to refer numerically
to January, were obviously partially cut off since the statement has an
ending date of November 30. (GC Exh. 85.)
131 The debits are listed at entries for November 3, 5–6, 9–10, 12–13,
16, 18, 20, 23, 25, 27, and 30; the credit entries are listed at November
18, 20, 25, and 27. (GC Exh. 85.)
132 De Jesus referred to the payments by El Vocero to News Dis-
tributor as cash advances, but his lack of knowledge as to the total
amount transferred, as well as any repayment arrangement indicates the
existence of a loan. (Tr. 873–874, 878, 883–884, 890, 893, 908, 959,
1725; GC Exh. 17.) Moreover, Fields testified that approximately
$32,000 of a $38,130.60 overpayment by News Distributor in January
2010 was attributable to the interest on the money advanced by El
Vocero. Due to the absence of any documentation as to that entry, I did
not credit Fields’ contention. (GC Exh. 17; Tr.1702–1706.)
133 Contrary to de Jesus’ testimony that El Vocero charges back the
cost of News Distributor to MMM, that cost has never been reimbursed
EL VOCERO DE PUERTO RICO, INC. 1601
Finally, although Field’s travel expenses in December 2009
were paid by News Distributor, his January travel and lodging
in Puerto Rico were paid by El Vocero.134
III. LEGAL ANALYSIS
The General Counsel and the Charging Party allege a series
of 8(a)(5) and (1) violations by El Vocero and News Distributor
resulting from El Vocero’s alleged unilateral changes to bar-
gaining unit members’ terms and conditions of employment. El
Vocero contends that its unilateral actions were justified due to
the Union’s failure to bargain in good faith and a myriad of
external, extraordinary, unforeseen economic factors beyond its
control: the economic recession that began in 2008 and the
accompanying nationwide decline of the newspaper industry; a
mounting operating deficit; and inability to pay suppliers.
A. El Vocero’s Breach of the December 26, 2008 Agreement
An employer is generally prohibited from implementing uni-
lateral changes to mandatory subjects of bargaining without
first bargaining with the union to impasse. See NLRB v. Katz,
369 U.S. 736 (1962); Winn-Dixie Stores, 243 NLRB 972
(1979); Bottom Line Enterprises, 302 NLRB 373 (1991), enfd.
sub nom. Master Window Cleaning, Inc. v. NLRB, 15 F.3d
1087 (9th Cir. 1994); RBE Electronics of S.D., 320 NLRB 80
(1995). Thus, the implementation of such a change without the
consent of the other party to collective-bargaining agreement
constitutes an 8(a)(5) violation. Navigator Communications
Systems, LLC., 331 NLRB 1056 (2000).
The December 26 Agreement essentially provided El Vocero
with a second chance to comply with the terms and conditions
of the CBA that it had otherwise breached in numerous respects
up to that point. El Vocero did not counter the evidence that it
breached the terms of the December 26 Agreement by failing to
contribute, commencing January 2009, to the cancer plan, in-
tensive care plan, life insurance, funeral insurance, long-term
disability insurance, pension plan, and the gasoline allowance.
Nor did it offer evidence that it notified the Union before reneg-
ing on the agreement and asked to bargain regarding the diffi-
culties in complying with the agreement. Roca gave a vague
and unconvincing explanation as to a worsened financial pic-
ture that developed some time between the execution of the
December 26 Agreement and his return from vacation in Janu-
ary 2009. He also alluded to difficulties that developed in get-
ting the coverages reinstated, yet he never informed the Union
of those issues and insisted he was too busy running the news-
paper. In retrospect, it is evident that El Vocero never had any
intention of complying with the December 26 Agreement and
was simply stringing along the Union in order to prolong its
noncompliance with CBA-mandated obligations—at that point,
over a year.
El Vocero’s failure to comply with the December 26 Agree-
ment “is not excused either by subjective good faith or by the

by either MMM or News Distributors. (Tr. 79, 304, 857–858, 859,
1739.)
134 Given the extensive amount of time elapsed, Fields’ assertion on
April 14, 2010, that News Distributor was going to reimburse El
Vocero for paying his January 2010 moving expenses to Puerto Rico
was not credible. (Tr. 1629–1632, 1728; GC Exhs. 104–106.)
economic necessity of maintaining viability of an employer’s
operation and preserving the jobs of the employees in the bar-
gaining unit.” See Dahl Fish Co., 279 NLRB 1084, 1094–1095
(1986), citing Oak Cliff-Golman Baking Co., 207 NLRB 1063,
1064 (1973), affd. 505 F.2d 1302 (5th Cir. 1974), and Rego
Park Nursing Home, 230 NLRB 725, 727 (1977). Having as-
serted a financial inability to comply, El Vocero was required
to request bargaining regarding its dilemma and, upon the Un-
ion’s request, substantiate its claim by providing the Union
with the appropriate financial information. Stella Doro Biscuit
Co., 355 NLRB 783, 784 (2010), citing NLRB v. Truitt Mfg.
Co., 351 U.S. 149 (1956), and Nielsen Lithographing Co., 305
NLRB 697 (1991). Based on the foregoing, El Vocero violated
Section 8(a)(5) and (1) of the Act.
B. Employees Pay Dates, Severance Pay, Vacation,
Medical Insurance and Bumping Rights
The General Counsel and the Charging Party also allege that
El Vocero made unilateral changes to employees’ terms and
conditions of employment by failing to provide severance and
vacation pay; changing employees’ medical insurance provider;
failing to honor a laid-off employee’s bumping request; and
failing to pay employees on Thursdays. Again, El Vocero did
offer evidence to refute the allegations, but attributed its actions
to financial necessity or the expiration of the CBA.
Generally, an employer violates Section 8(a)(5) and (1) if it
makes a unilateral change in wages, hours, or other terms and
conditions of employment without first giving the Union notice
and an opportunity to bargain. See NLRB v. Katz, 369 U.S.
736, 742–743 (1962); Pepsi-Cola Bottling Co., 330 NLRB 900
(2000); Daily News of Los Angeles, 315 NLRB 1236, 1237
(1994). The CBA, in pertinent part, specifically provided em-
ployees with the following benefits: lump-sum payments to
laid-off employees of 2 weeks of severance for each year of
service, which El Vocero previously modified to a series of
$500 monthly payments; the right to take accrued vacation
leave based on seniority, subject to a departmental limitation of
two employees on vacation at a time; the right to select their
medical insurance provider with a $317 monthly contribution
by El Vocero; and the right of laid-off employees to bump less
senior employees from available positions. Moreover, although
there was no evidence that the CBA set forth a scheduled week-
ly payday, the undisputed testimony established that El Vocero
paid its employees every Thursday.
On May 13, 2009, without prior notification to, and bargain-
ing with, the Union, El Vocero reduced severance payments to
$250 per week. On June 30, 2009, El Vocero changed the em-
ployee medical plan from MAPFRE to MCS, effective July 1,
2009, and reduced its employer contribution to $213 per month
per employee. Again, El Vocero took such action without dis-
cussing it with the Union. On July 6 and 7, 2009, El Vocero
placed 13 printing press employees on involuntary vacation.
None requested the leave and some, including Quintana,
showed up attempting to work. On August 25, 2009, El Vocero
rejected Mendez’ bumping request to several positions for
which he was qualified because the CBA expired. Lastly, on
numerous occasions between January and July 2009, El Vocero
failed to pay employees on time, with delays ranging from sev-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1602
eral days to a week. The Union voiced its objection on numer-
ous occasions, but to no avail.
The foregoing changes affected employee terms and condi-
tions of employment and were, thus, mandatory subjects of
bargaining. See Mid-Continent Concrete, 336 NLRB 258
(2001), enfd. 308 F.3d 859 (8th Cir. 2002) (health insurance);
Desert Toyota, 346 NLRB 132 (2005), citing Abernathy Exca-
vating, Inc, 313 NLRB 68 (1993) (regularly scheduled pay
dates); Migali Industries, 285 NLRB 820, 825–826 (1987)
(vacation scheduling); E. I. du Pont & Co., 346 NLRB 553, 579
(2006) (severance pay); Associated Services for the Blind, 299
NLRB 1150, 1151 (1990) (bumping rights). Moreover, sever-
ance pay, as a contractual provision relating to seniority rights,
survived the CBA’s expiration, and remained subject to bar-
gaining. Concourse Nursing Home, 328 NLRB 692, 702
(1999); MBC Headwear, Inc., 315 NLRB 424 fn. 3 (1994);
Kuna Meat Co., 304 NLRB 1005, 1012 (1991), enfd. 966 F.2d
428 (8th Cir. 1992); and Hen House Market No. 3, 175 NLRB
596, 602 (1969), enfd. 428 F.2d 133 (8th Cir. 1970). Accord-
ingly, by changing or refusing to honor the aforementioned
contractual rights without first giving employees an opportunity
to bargain, El Vocero violated Section 8(a)(5) and (1).
C. Closure of the Circulation Department and Contracting
Its Work to a New Distributor
The General Counsel contends that El Vocero closed the cir-
culation department and laid off its 107 employees on July 6,
2009, without bargaining with the Union to impasse and, in an
attempt to avoid its obligations under the CBA, entered into a
contract with a newly-formed company, News Distributor, for
the performance of that work. Furthermore, the General Coun-
sel avers that there is an alter ego relationship between El
Vocero and News Distributor. El Vocero and News Distributor
deny the allegations and assert that the latter was an independ-
ent concept advanced by Roca in order to pursue financial op-
portunities in the distribution industry. El Vocero also con-
tends that it was justified in closing the circulation department
because: (1) the Union’s bad faith precluded any possibility of
reaching an agreement; and (2) economic exigency required the
immediate closure of the circulation department.
1. Failure to bargain to impasse
El Vocero essentially contends that it reached an impasse
with the Union because the latter never made any proposals and
bargained in bad faith during meetings to reorganize the circu-
lation department in 2007 and 2008, and it would have been
futile to attempt to do so again in 2009. As evidence of such
bad faith, El Vocero also relies on evidence of the Union’s
support for another newspaper, The Daily Sun, and its opposi-
tion of a government grant for News Distributor.
As previously explained, an employer cannot unilaterally
change a mandatory subject of bargaining without first notify-
ing the Union and giving the Union an opportunity to bargain
over those changes. See NLRB v. Katz, 369 U.S. at 742–743.
An employer has “a duty to refrain from implementation at all,
unless and until an overall impasse has been reached on bar-
gaining for the agreement as a whole.” Bottom Line Enterpris-
es, 302 NLRB 373, 374 (1991), enfd. sub nom. Master Window
Cleaning, Inc. v. NLRB, 15 F.3d 1087 (9th Cir. 1994). The
Board recently addressed impasse in Area Trade Bindery Co.,
352 NLRB 172, 175 (2008):

By definition, an impasse occurs whenever negotiations reach
that point at which the parties have exhausted the prospects of
concluding an agreement and further discussions would be
fruitless. Laborers Health & Welfare Trust Fund v. Advanced
Lightweight Concrete Co., 484 U.S. 539, 543 (1988). . . . “A
genuine impasse in negotiations is synonymous with a dead-
lock; the parties have discussed a subject or subjects in good
faith, and, despite their best efforts to achieve agreement with
respect to such, neither party is willing to move from its re-
spective position.” Hi-Way Billboards, Inc., 206 NLRB 22,
23 (1973).

Factors to consider when determining whether or not an im-
passe exists include, “[t]he bargaining history, the good faith of
the parties in negotiations, the length of the negotiations, the
importance of the issue or issues as to which there is disagree-
ment, [and] the contemporaneous understanding of the parties
as to the state of the negotiations.” Taft Broadcasting Co., 163
NLRB 475, 478 (1967), enfd. sub. nom. Television Artists
AFTRA, 395 F.2d 622 (D.C. Cir. 1968). The party asserting
impasse as a defense to unilateral action bears the burden of
proof on the issue. North Star Steel Co., 305 NLRB 45 (1991),
enfd. 974 F.2d 68 (8th Cir. 1992).
In order to conclude that the Union failed to act in good faith
during the negotiations leading up to July 2009, the Union’s
conduct must be determined to have been so egregious as to
“preclude the existence of a situation in which [El Vocero’s]
own good faith could not be tested.” Times Publishing Co., 72
NLRB 676, 683 (1947); see also Continental Nut Co., 193
NLRB 841, 858 (1972); Northwest Pipe & Casing Co., 300
NLRB 726, 737 (1990).
The parties met on numerous occasions in 2007 and 2008 to
discuss Roca’s proposal to reorganize the circulation depart-
ment by reassigning much of the distribution work from unit
members to independent contractors. On several occasions, the
Union permitted Roca to make presentations to the union mem-
bership. Roca and Baez conceded at trial that they were there to
listen and not make proposals. However, each of Roca’s pro-
posals reflected feedback from the union delegates and em-
ployees after meetings with Roca. Initially, El Vocero pro-
posed to reorganize the circulation department by replacing
distribution agents with independent contractors responsible for
larger distribution zones. The first proposal was rejected by a
controlling half of the union membership in February 2008.
The parties continued their discussions and a vote over a se-
cond proposal in May or June 2008 also failed, reflecting the
concerns of metropolitan area agents over the smaller size of
their distribution areas. Subsequent concerns by the member-
ship reflected the concerns of the inland area agents as to the
proposed changes in their distribution areas. Roca subsequent-
ly attended a union membership meeting and addressed em-
ployees’ concerns over the effects that reorganization would
have on other departments as well.
Clearly, Roca and the union leadership had more work ahead
before being able to gain the approval of a preponderance of the
membership. However, there were no further discussions re-
EL VOCERO DE PUERTO RICO, INC. 1603
garding a proposed reorganization of the circulation department
after the spring of 2008. More importantly, there was never
any mention by El Vocero that it sought to eliminate the circu-
lation department. Therefore, there could not have been an
impasse on that issue.
As to the alleged futility in even discussing the circulation
department’s closing, the Union’s actions and stances during
the attempted reorganization efforts by El Vocero in 2007 and
2008 could hardly be called egregious. For sure, the Union
took a hard line in insisting on El Vocero’s adherence to em-
ployees’ rights under the CBA. However, there was also an
abundant history of economic concessions by the Union during
that period of time, as evidenced by the December 26 Agree-
ment, deferred and/or excused payments to employees’ 401(k)
funds, and foregoing wage increases.
The evidence established direct and indirect support by Soto,
Baez, the Union, and the TNG/CWA for the efforts of former
San Juan Star employees in forming a workers’ cooperative, the
Cooperativa Prensa Unida. That cooperative operates The Dai-
ly Sun, a daily English-language newspaper. The TNG/CWA
donated money to the cooperative, the Union provided free
office and meeting space, and Baez personally loaned the or-
ganization money. Moreover, Soto advocated for government
funding to the cooperative, while opposing such funding for
News Distributor. It is difficult, however, to imagine how their
efforts were detrimental to El Vocero. Besides helping laid-off
union members at the San Juan Star obtain work through the
formation of a cooperative, they had no direct impact on El
Vocero—there was certainly no evidence that spawning an
English-language newspaper would diminish the circulation of
El Vocero, a Spanish-language daily newspaper. News Distrib-
utor, on the other hand, was a distributor and, according to El
Vocero, a separate entity. Thus, Soto’s advocacy against it
getting government funding cannot be deemed inimical to El
Vocero.
2. Contracting the work to News Distributor
Interrelated with the unilateral change involved in closing
the circulation department was the act of contracting its work to
News Distributor. On June 11, 2009, Roca provided the Union
with a proposed CBA, which included the elimination of that
department. He informed the Union, however, that although he
was willing to negotiate the effects of his decision to shift such
work to another company, the decision itself was final and not
subject to negotiation. Over the Union’s objections and at-
tempts to negotiate the closure decision, Roca remained stead-
fast and awarded the distribution work to newly-created News
Distributor 2-1/2 weeks later.
On July 6, less than a month after Roca notified the Union of
his decision, News Distributor commenced distribution of El
Vocero, with Roca as president, Sanchez as vice president, and
Martinez as operations manager. It was, by all accounts, a
company on paper only. Its 14 employees remained El Vocero
employees until July 13, operated out of El Vocero’s offices,
and essentially continued performing their former duties. The
billing and collections functions remained essentially the same,
with independent contractors replacing distribution agents. The
only difference was El Vocero’s contracting with TLC to deliv-
er newspapers to independent contractors in the western and
southeastern zones. Thus, it is clear that when El Vocero con-
tracted out the work of the circulation department to News
Distributor, its basic operation remained the same.
El Vocero was not changing the scope, nature, or direction of
its business but, rather, shifting an integral component of its
operations to another company. “Contracting bargaining unit
work under such circumstances by substituting one group of
workers for another to perform the same work is clearly a man-
datory subject of bargaining.” American Benefit Corp., 354
NLRB 1039, 1051 (2010), citing Fibreboard Paper Products
Corp., 379 U.S. 203 (1964),135 and Spurlino Materials, Inc.,
353 NLRB 1198, 1217 (2009). In Fibreboard, the employer
actually conceded in a letter to the union that it was contracting
out bargaining unit work, in contrast to El Vocero’s attempt to
disguise its contract with News Distributor as a change in the
direction of the business.
Reliance by El Vocero and News Distributor on First Na-
tional Maintenance Corp., 452 U.S. 666, 681–682 (1981), is
unavailing. In that case, an employer’s decision to partially
close the business was found not to be a mandatory subject of
bargaining, although there remained a duty to bargain over its
effects. The contrast to Fireboard is obvious as the employer
in First National neither replaced the discharged employees nor
contracted out their functions to another company.
Based on the foregoing, it has been established that El
Vocero’s decision to contract out the circulation department’s
unit work to News Distributor was a mandatory subject of bar-
gaining. Furthermore, the undisputed evidence established that
El Vocero neither notified the Union nor afforded it an oppor-
tunity to bargain over that decision. Those actions violated
Section 8(a)(5) of the Act.
3. Claim of economic exigencies
Having failed to bargain to impasse before invoking unilat-
eral changes, El Vocero contends that an employer, under cer-
tain circumstances, could be justified in making unilateral
changes to mandatory subjects of bargaining. The Supreme
Court vaguely mentioned such an exception in NLRB v. Katz,
369 U.S. 736, 741–742, 747–748 (1982), but upheld the em-
ployer’s violation based on unilateral changes in wage and sick
leave policies after it incorrectly claimed an impasse in negotia-
tions. In the seminal Board decisions that followed, it became
clear that employers would not be justified in implementing
unilateral changes simply because of economic difficulties. See
Winn-Dixie Stores, 243 NLRB 972, 974–975 (1979) (unilateral
wage increase in order to remain competitive in its industry);
Bottom Line, 302 NLRB 373, 373–375 (1991) (employer’s
suspension of contributions to union trust funds during bargain-
ing); RBE Electronics of S.D., 320 NLRB 80, 82 (1995) (em-
ployer recalled employees and then unilaterally reduced their

135 As noted at fn. 8 of the Fibreboard decision, the “terms ‘contract-
ing out’ and ‘subcontracting’ have no precise meaning” and “are used
to describe a variety of business arrangements” from those involved in
the case. In the case of News Distributor, the General Counsel alludes
to it as a subcontractor. However, the facts in this case indicate that El
Vocero directly contracted with News Distributor, who then subcon-
tracted with independent contractors.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1604
work hours due to a vaguely defined business downturn). In
RBE, the Board also noted that an employer claiming justifica-
tion for unilateral action on the basis of an economic exigency
must meet a heavy burden of proof that it experienced a busi-
ness emergency requiring it to make unilateral changes. A
compelling business justification was defined as an external,
extraordinary, unforeseen, and not reasonably foreseeable oc-
currence beyond the employer’s control that has a major eco-
nomic impact and requires the employer to take immediate
action. Id., quoting Hankins Lumber Co., 316 NLRB 837, 838
(1995), quoting Angelica Healthcare Services, 284 NLRB 844,
852–853 (1987).
Contrary to El Vocero’s assertions, the credible evidence did
not point toward closure of the newspaper by July 2009. El
Vocero’s difficulties—which included losses and debts of over
$64 million, diminished advertising revenue, and periodic diffi-
culties in purchasing paper from a supplier—seem more formi-
dable than the need to maintain competitive wages and the
vague business downturn cited by the employers in Winn-Dixie
and RBE, respectively, as reasons for taking unilateral action.
320 NLRB at 84–85; 243 NLRB at 973–974. However, the
credible evidence reveals that El Vocero’s financial situation
was improving—albeit slightly—when the Company an-
nounced its decision to close the circulation department in July
2009. Prior to that time, El Vocero transferred 38 employees to
Multi-Media Management and News Distributor, which re-
ceived government assistance in covering their payroll costs.
El Vocero also transferred some employees to Multi-Media
Enterprises, Multi-Service, and Prime Printing. By July 2009,
El Vocero seemed to have found a way to fund its payroll,
thereby alleviating a portion of the Company’s financial stress.
El Vocero also agreed to a payment plan with its paper supplier
and began the process of establishing a payment schedule for
its tax arrears by July. The only circumstance that seems to
have changed prior to July 9 was the loss of the government
funding that El Vocero had used to meet its payroll demands
from 2005 through 2007. Additionally, El Vocero hired an
industry consultant in January 2008, and began compensating
Maria Luisa Roca for benefits accrued by the late Gaspar Ro-
ca’s at a rate of $10,000 per month.
Given the significant savings that resulted from contracting
out the circulation department’s functions, there is no doubt
that El Vocero exercised rational business judgment in seeking
to eliminate that department and contract its work to another
company. Whether the facts surrounding El Vocero’s actions
rise to the level of a compelling business justification, however,
depends on the necessity of prompt employer action. In RBE,
320 NLRB at 82, the Board held that a business emergency that
exempts an employer from the prohibition on unilateral chang-
es to mandatory bargaining subjects must be an external, ex-
traordinary, unforeseen, and not reasonably foreseeable occur-
rence beyond the employer’s control that has a major economic
impact and requires the employer to take immediate action.
This record is devoid of any evidence demonstrating any exter-
nal, extraordinary, or unforeseen occurrence prior to July 2009.
It is also notable that El Vocero announced its decision ap-
proximately 5 months after it was made and approximately 3
months after Roca claimed the newspaper was likely to close if
it did not significantly reduce its cost. The delay, the incon-
sistency between the dates when El Vocero projected it would
reach a financial crisis point and it closed the circulation de-
partment, as well as the Company’s financial improvements in
advance of the closure announcement, strongly indicate the lack
of a compelling business justification for closing that depart-
ment on July 9, 2009.
El Vocero cites several cases in which the Board sanctioned
unilateral employer action based on exigent circumstances.136
In all but one of the cases cited, however, the terminated func-
tions of the bargaining unit members were not replaced by an-
other company. In Seaport Printing & Ad Specialties, Inc., 589
F.3d 812 (5th Cir. 2009); 351 NLRB 1269, 1270 (2007), the
employer closed its facility in response to a mandatory evacua-
tion in advance of a hurricane—an unforeseen and economical-
ly consequential event clearly requiring prompt employer ac-
tion. In Brooks-Scanlon, Inc., 246 NLRB 476, 476–477 (1979),
the diminished availability of timber in the area justified the
employer’s unilateral decision to cease lumber milling opera-
tions. In Raskin Packing Co., 246 NLRB 78, 82–84 (1979), a
meat packing company closed its business after it ran out of all
options—the U.S. Department of Agriculture informed the
employer that it was violating the law by operating without a
performance bond and the employer was unable to obtain one
after its bank discontinued its line of credit. In M & M Trans-
portation Co., 239 NLRB 73, 74–75 (1978), the employer was
unable to obtain a loan and had no funds to continue operating.
Similarly, in National Terminal Baking Corp., 190 NLRB 465,
466 (1971), the employer ceased operations after two of its
delivery trucks were stolen in 1 week and it lacked the funds to
continue operating. In Kingwood Mining Co., 210 NLRB 844,
844–845 (1974), affd. sub nom. Mine Workers v. NLRB, 515
F.2d 1018 (D.C. Cir. 1975), the employer discontinued its min-
ing operation after it lost a contract representing over one-third
of its mining business.
In Central Rufina, 161 NLRB 696, 697–699 (1966), the
Board approved the employer’s temporary discontinuation of
its sugar cane grinding operation for the grinding season and
contracted out the work due to mechanical difficulties with its
equipment. Those unforeseen developments, however, are
distinguishable from the circumstances in this case. El Vocero
was not faced with a sudden problem in producing or distrib-
uting its product. Its staff, equipment, and machinery were all
intact and, with all of its operational issues, El Vocero was
always able to produce and distribute a daily newspaper.
In contrast to the examples of exigent circumstances cited
above, the weight of the credible evidence indicates that El
Vocero would not have gone out of business had the circulation
department remained open. The business had been hemorrhag-
ing money for years, especially since its ill-fated purchase of
the El Mundo newspaper, but always managed to keep moving
along. Yet, Roca decided about 5 months earlier, during the
pendency of the CBA, to close the circulation department. At

136 El Vocero also cites Visiting Nurse Service v. NLRB, 177 F.3d 52,
55–57, 62 (1st Cir. 1999), but the Board rejected the employer’s asser-
tion that “operational and economic realities” rose to the requisite level
of economic exigency.
EL VOCERO DE PUERTO RICO, INC. 1605
that point, he was planning to create News Distributor and sev-
eral other companies in order to pursue distribution opportuni-
ties in the publication industry. This background is hardly in-
dicative of imminent financial collapse. Indeed, El Vocero’s
financial situation showed signs of improvement before it
closed the circulation department. El Vocero had transferred
several employees and obtained government support for their
wages; developed a payment plan with its paper supplier; begun
to pay its back taxes; hired a new consultant; and started to
compensate Maria Luisa Roca for Gaspar Roca’s accrued vaca-
tion at a rate of $10,000 per month, all in the year preceding the
elimination of the circulation department. In contrast to
Brooks-Scanlon, Inc., supra, there was a history of responsive-
ness on the Union’s part after employees were laid off in 2008,
resulting in the December 26 Agreement. Most importantly, El
Vocero never requested that the Union negotiate over the clos-
ing of the circulation department before making the irreversible
decision to do that.
Based on the foregoing, El Vocero’s unilateral closure of its
circulation department does not meet the Board’s criteria for an
economic exigency exception from the prohibition of unilateral
changes to mandatory bargaining subjects. As El Vocero had
the time to bargain with the Union over the closure of the circu-
lation department, its failure to bargain to impasse before doing
so constitutes a violation of Section 8(a)(5). Thus, El Vocero
violated Section 8(a)(5) of the Act when it unilaterally con-
tracted out the work of the circulation department without bar-
gaining with the Union or in the alternative created News Dis-
tributor as an alter ego to distribute the newspaper and dis-
charged the circulation department unit employees as a result of
their unlawful actions.
4. Alter ego and single employer relationships
The General Counsel and the Charging Party contend that El
Vocero is in an alter ego relationship with News Distributor,
which was created in order to enable El Vocero to circumvent
its obligations under the Act. The General Counsel also asserts
that both companies are so intertwined that they constitute a
single-employer. El Vocero and News Distributor deny those
contentions and insist that the latter is an autonomous entity
serving several other publications, as well as El Vocero.
The alter ego doctrine generally applies where a nonunion
company replaces a union company. The single employer doc-
trine, on the other hand, generally applies to companies that
concurrently perform the same or similar function, and where
one company recognizes the union and the other does not.
Stardyne, Inc. v. NLRB, 41 F.3d 141, 152 (3d Cir. 1994); NLRB
v. Hospital San Rafael, 42 F.3d 45 (1st Cir. 1994). Given the
fact that the Union disputes the legitimacy of News Distribu-
tor’s existence and has not even sought its recognition, the alter
ego theory is more applicable in the circumstances. Regardless,
the elements necessary to prove alter ego, except for motive,
are relevant in proving the existence of single-employer status.
Diverse Steel, Inc., 349 NLRB 946, 951 (2007).
The key elements in establishing an alter ego relationship are
“substantial identity of management, business purpose, opera-
tion, equipment, customers, supervision and ownership.”
NLRB v. Al Bryant, Inc., 711 F.2d 543, 553–554 (3d Cir. 1993),
cert. denied 464 U.S. 1039 (1984). Another significant factor is
whether the new entity was created for the purpose of evading
collective-bargaining obligations. See Fugazy Continental
Corp., 265 NLRB 1301, 1302 (1982), enfd. 725 F.2d 1416
(D.C. Cir. 1984). However, no single factor is determinative
and the Board does not require the presence of each factor to
conclude that alter ego status should be applied. See Stardyne,
Inc., 41 F.3d at 146, citing Fugazy Continental Corp., 265
NLRB at 1301; Standard Commercial Cartage, Inc., 330
NLRB 11, 13 (1999); MIS, Inc., 289 NLRB 491, 492 (1988).
Applying traditional alter ego analysis to the El Vocero-
News Distributor relationship, there is little doubt that the two
entities have substantially identical ownership, management,
supervision, business purposes, operations, equipment and
premises, and customers. News Distributor, bestowed with a
mere $10,000 in start-up capital, is owned by Phoenix Interna-
tional and Wade Investors. Phoenix International is owned by
Roca, who also happened to sign the membership certificate of
Wade Investments. Stein and Pompadur are on the boards of
directors of both El Vocero and News Distributor; Roca re-
mains a board member of the latter. Roca served as president
of both El Vocero and News Distributor for at least 10 months
before formally passing the reins of the latter to his handpicked
replacement, Fields; Sanchez and Martinez assumed the key
roles of executive vice president and operations manager of
News Distributor while still employees at El Vocero. All of
News Distributor’s initial managers moved over from El
Vocero’s circulation department.
Until July 2009, El Vocero’s business purpose, the publica-
tion of a daily newspaper, had always included its distribution
to its customers. It transferred portions of that function to
News Distributor, but retained the dispatching and bundling
work, and the distribution of prepaid subscriptions and courtesy
newspapers. With the exception of distribution agents being
replaced by independent contractors, the distribution of El
Vocero to its customer base has not changed. News Distribu-
tor’s business purpose, on the other hand, has always entailed
the distribution of El Vocero to the same customer base. In-
deed, the transfer of those functions to News Distributor was a
culmination of Roca’s 2-year long effort to reorganize the cir-
culation department. News Distributor had no other clients
when it inherited that distribution function. Its creation at a
time when Roca was extremely occupied with El Vocero’s
operations, as well as a few months before the CBA expired,
was purely strategic. Moreover, News Distributor’s revenue
from El Vocero continues to dwarf the revenue received from
several other publications. Such circumstances strongly sug-
gest an alter ego connection where, as here, a portion of a com-
pany’s business is transferred to the new company. See, e.g.,
Stardyne, Inc., 313 NLRB 170 (1993), citing also Standard
Commercial Cartage Inc., 330 NLRB 11 at 14 (1999), and
Eckert Fire Protection, 332 NLRB 198, 201 (2000).
The management and supervision of El Vocero’s former cir-
culation department and News Distributor were virtually identi-
cal at the outset. All of News Distributor’s managers were
former El Vocero employees until July 13, 2009. Roca,
Sanchez, and Martinez, while employed by El Vocero, adminis-
tered News Distributor’s main operations. Roca issued the em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1606
ployment letters to new staff, obtained the start-up capital from
local government, and recruited his permanent replacement
with El Vocero funds. Roca continued to serve as News Dis-
tributor’s president until January 2010 when News Distributor
finally enacted its own policies and procedures. In addition, El
Vocero and News Distributor use the same bank, outside ac-
countants, and attorney.
During its first year of existence, News Distributor, under-
capitalized, has been almost entirely dependent on the continu-
ous transfer of funds and in-kind contributions from El Vocero.
The funds transfers were effectuated by Munoz without docu-
mentation or prior approval by de Jesus. El Vocero also provid-
ed News Distributor with rent-free office space, equipment, and
supplies until the end of August 2009. Similarly, when News
Distributor moved its operations out of El Vocero’s offices, the
latter provided it with most or all of its office equipment and
furniture from the former circulation department. El Vocero
provided News Distributors with free advertising for carriers
throughout 2009. In addition, El Vocero pays one invoice for
the employees’ medical plans at El Vocero and News Distribu-
tor. However, there was no documentary evidence that News
Distributor reimburses El Vocero for its portion of the cover-
age.
The operations of El Vocero and News Distributor have also
been closely linked though two other Roca-created and funded
entities, MMM and Prime Printing. MMM’s only other clients
are MME, Multi-Services, and Prime Printing—all associated
with Roca. Since July 2009, MMM, operating rent free out of
El Vocero’s offices, has provided both El Vocero and News
Distributor with accounting, human resources, and payroll ser-
vices. At that point in time, 24 El Vocero employees, remain-
ing in their offices, were transferred from the payroll of El
Vocero to MMM, but essentially continued performing the
same functions. Aside from using MMM as a conduit to trans-
fer funds to News Distributor, the credible evidence revealed
that El Vocero has never paid MMM the agreed upon service
fees for its services. Prime Printing has also played a signifi-
cant role by subleasing office space to News Distributor in
January 2010, but has not collected rent from News Distributor.
The timing of Roca’s creation of News Distributor was sus-
piciously close to the expiration of the CBA, and the companies
had a “substantially identical” business purpose and mode of
operations. See Advance Electric, 268 NLRB 1001 (1984).
While there was not a common ownership connection, the two
companies were governed by substantially similar boards of
directors, which included Stein and Pompadur. Coupled with
Roca’s creation of News Distributor while he was president of
El Vocero, it is inconsequential that he lacked an ownership
interest in El Vocero at the time. Rogers Cleaning Contractors,
277 NLRB 482, 488 (1985), enfd. 813 F.2d 795 (6th Cir. 1987).
Actual common control is more significant. See, ADF, Inc.,
355 NLRB 81, 81 fn. 3 (2010); Sobeck Corp., 321 NLRB 259,
267 (1996). While presiding over El Vocero as president, Roca
initially staffed News Distributor with managers from El
Vocero’s circulation department and handpicked his successor,
Fields. Moreover, El Vocero’s direct and indirect financial
support launched News Distributor’s operations and enabled it
to stay in operation during its first year of existence. Lastly,
office equipment, furniture, and computer software was provid-
ed at no cost to News Distributor. Diverse Steel, Inc., 349
NLRB at 953–954, citing Valley Electric, Inc., 336 NLRB 1272
(2001), enfd. 337 F.3d 446 (5th Cir. 2003) (no compensation
was given to Diverse for the change in ownership). Based on
the foregoing, the evidence overwhelmingly demonstrates the
existence of an alter ego relationship between El Vocero and
News Distributor.
D. Assigning Supervisors Unit Work
Quintana observed Printing Press Supervisor Ortiz operate
the printing press on July 7, 2009. Although still accompanied
by three bargaining unit members, Ortiz did not refute Quin-
tana’s testimony that he was performing bargaining unit work.
Ortiz’ regular function, by his own account, was to supervise
his employees and assist them whenever necessary.
The performance of unit work by supervisors is a mandatory
subject of collective bargaining. See Maintenance Service
Corp., 275 NLRB 1422, 1427 (1985). Therefore, Ortiz’ per-
formance of bargaining unit work, in the absence of prior notice
to the Union, violated Section 8(a)(5) of the Act. J.W. Rex Co.,
308 NLRB 473, 498 (1992) (supervisors performed unit work
only under very limited circumstances prior to strike). Cf.
General Fabrications Corp., 328 NLRB 1114, 1125 fn. 6
(1999) (not considered a unilateral change where supervisors
had regularly performed unit work in the past).
E. El Vocero Deals Directly with Employees
The General Counsel contends that El Vocero dealt directly
with bargaining unit members, specifically, photojournalism
department employees. El Vocero denied the charge, but did
not address it in its brief.
An employer who bypasses a representative union and deals
directly with bargaining unit members violates Section 8(a)(5)
and (1). The traditional criteria in determining unlawful direct
dealing on the part of an employer includes: direct communica-
tion with unit members; discussion intended to affect wages,
hours, or other terms and conditions of employment, or seeking
to undercut the union’s bargaining role; and the union’s exclu-
sion from the communication. Permanente Medical Group,
332 NLRB 1143, 1144 (2000); Southern California Gas Co.,
316 NLRB 979, 982 (1995); Obie Pacific Inc., 196 NLRB 458,
459 (1972).
By June 2009, the Union’s requests for financial information
were months overdue. The requests were submitted in response
to El Vocero’s claimed financial inability to comply with the
terms of the December 26 Agreement and the CBA in general,
as well as its ongoing requests to modify the terms of the CBA.
Rather than provide the information and attempt to bargain,
Roca sidestepped the Union and held separate meetings with
employees in each department. During one such meeting, he
briefed approximately six photo journalism department em-
ployees on El Vocero’s predicament and the changes he was
planning for the circulation department. Roca informed them
that he planned to create three companies to handle El Vocero’s
administration, distribution, accounting, and payroll. He also
belittled the Union’s likely opposition to such a plan by predict-
ing that any further discussions would wind up at an impasse.
EL VOCERO DE PUERTO RICO, INC. 1607
For that reason, he advised the employees to insist that the Un-
ion permit them to negotiate directly with Roca.
Under the circumstances, Roca’s direct solicitation of em-
ployee sentiment and support regarding El Vocero’s proposed
changes to their terms and conditions of employment were
clearly calculated to undermine the Union’s position as their
exclusive representative in violation of Section 8(a)(5). See
Modern Merchandising, 284 NLRB 1377, 1379–1380 (1987);
see also Alan Ritchey, Inc., 354 NLRB 628, 691 (2009); In re
Full Service Beverage Co. of Colorado, 331 NLRB 945, 948
(2000).
CONCLUSIONS OF LAW
1. El Vocero and News Distributor are employers engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. News Distributor was established by El Vocero as a dis-
guised continuation and an alter ego in order to evade its re-
sponsibilities under the Act.
4. El Vocero violated Section 8(a)(1) and (5) of the Act
when:
(a) It failed to abide by the terms of the December 26, 2009
Agreement between El Vocero and the Union with respect to
the pension plan, cancer plan, life insurance, funeral insurance,
long-term disability insurance, and gasoline allowance without
the Union’s consent.
(b) Since about January 2009, it unilaterally changed the unit
employees’ pay dates and severance payments.
(c) Since about July 2009, it unilaterally changed the unit
employees’ vacation, medical insurance benefits, and denied
employees their bumping rights.
(d) Since June or July 2009, it unilaterally contracted out the
unit work of the circulation department.
(e) Since June or July 2009, it assigned the unit work of the
circulation department to its alter ego, News Distributor.
(f) About July 5, 2009, it discharged 107 employees of the
circulation department as a result of contracting out the unit
work.
(g) About July 5, 2009, it discharged 107 employees of the
circulation department as a result of assigning unit work to its
alter ego, News Distributor.
(h) About July 5, 2009, it assigned unit work to a supervisor
in the press department.
(i) El Vocero engaged in the conduct described in paragraphs
4(a) through (h) without affording notice to the Union and
without affording it an opportunity to bargain.
(j) About June 2009, El Vocero, by Miguel Roca, told em-
ployees that he did not want to bargain with the Union but di-
rectly with the employees.
5. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that El Vocero and News Distributor have en-
gaged in certain unfair labor practices, I find that they must be
ordered to cease and desist and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
El Vocero, having eliminated the circulation department,
unilaterally laid off all of that department’s 107 employees and
transferred their bargaining unit work to News Distributor, I
shall order them to restore the status quo ante, as it existed prior
to July 5, 2009. Such a restoration order is presumptively ap-
propriate to remedy unlawful unilateral changes. See Lear
Siegler, Inc., 295 NLRB 857, 861 (1989). El Vocero shall,
thus, offer said individuals their former jobs, without prejudice
to their seniority or other rights and privileges previously en-
joyed, and make them whole for any loss of earnings or bene-
fits caused by El Vocero’s unilateral action in eliminating the
circulation department, in accordance with Ogle Protection
Services, 183 NLRB 682 (1970), with interest as set forth in
New Horizon for the Retarded, 283 NLRB 1173 (1987).
I shall also order El Vocero to comply with the terms and
conditions of the collective-bargaining agreement and any au-
tomatic renewal or extension of it, bargain with the Union as
the exclusive collective-bargaining representative of the em-
ployees in the unit unless and until an agreement is reached or
there is an impasse on all mandatory subjects of bargaining.
Moreover, El Vocero is ordered to make whole employees for
losses suffered by its failure to comply with the terms of the
December 26 Agreement, in accordance with Merryweather
Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). The amounts
are to be computed in the manner set forth in Ogle Protection
Service, plus interest as computed in New Horizons, supra.
Finally, upon request by the Union, El Vocero shall rescind the
unilateral changes to the unit employees’ pay dates, medical
insurance, vacation, severance payments, and bumping rights,
and bargain with the Union regarding these changes.
[Recommended Order omitted from publication.]