El Mundo Broadcasting Corp.

National Labor Relations Board - Board Decisions

Jun 10, 1954

108 N.L.R.B. 1270 (N.L.R.B. 1954)

1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and maintenance employees, including the dieroom employees,
may also be appropriate.
In view of the foregoing, we make no final unit determination
at this time, but shall direct that the question concerning
representation of the Employer's employees be resolved by
separate elections, by secretballot, among the employees in the
following groups of employees at the Employer's automotive
parts manufacturing plant at Marion, Ohio, excluding from each
group all office clerical employees, guards, professional em-
ployees, and supervisors as defined in the Act.
Voting group (A): All employees who work on dies or parts of
dies used in the manufacture and completion of forgings.
Voting group (B): All production and maintenance employees,
excluding employees in voting group (A).
If a majority of the employees in voting group (A) select the
union seeking to represent them separately, these employees
will be taken to have indicated their desire to constitute a sep-
arate bargaining unit and the Regional Director conducting the
election is instructed to issue a certification of representa-
tives to the labor organization seeking and selected by the em-
ployees in that group for such unit, which the Board in such
circumstances finds to be appropriate for purposes of collective
bargaining. On the other hand, if a majority of the employees in
voting group (A) 'do not vote for the union which is seeking to
represent them in a separate unit, that group will be appro-
priately included in the production and maintenance unit and
their votes will be pooled with those in voting group (B). If the
votes are pooled, they are to be tallied in the following manner:
The votes for the union seeking the separate unit shall be
counted among the valid votes cast, but neither for nor against
the union seeking the more comprehensive unit; allother votes
are to be accorded their face value, whether for representation
by the union seeking the comprehensive unit, or for no union.
The Regional Director conducting the election is instructed to
issue a certification of representatives to the labor organization
selected by a majority of the employees in the pooled group,
which the Board in such circumstances finds to be a single unit
appropriate for purposes of collective bargaining.
[Text of Direction of Elections omitted from publication.]
EL MUNDO BROADCASTING CORPORATION and GREMIO DE
PRENSA, RADIO, TEATRO Y TELEVISION DE PUERTO
RICO, INDEPENDIENTE. Case No. 24-CA-470. June 10,
1954
DECISION AND ORDER
On February 11, 1954, Trial Examiner Thomas N. Kessel
issued his Intermediate Report in the above-entitled pro-
108 NLRB No. 186.
EL MUNDO BROADCASTING CORPORATION 1271
ceeding , finding that Respondent had engaged in and was en-
gaging in certain unfair labor practices , and recommending
that it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, Respondent filed exceptions to
the Intermediate Report and a supporting brief.'
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report,' the exceptions and
brief, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial
Examiner.
ORDER
U on the entire record in the case , and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that Respondent , El Mundo
Broadcasting Corporation , San Juan, Puerto Rico , its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership and activity in Gremio de
Prensa , Radio , Teatro y Television de Puerto Rico, Inde-
pendiente , or in any other labor organization , by discharging
any of its employees , or in any other manner discriminating
against them in regard to hire or tenure of employment or any
term or condition of employment.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization , to form labor organizations , to join or assist
Gremio de Prensa , Radio , Teatro y Television de Puerto Rico,
Independiente , or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities , except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of em-
ployment , as authorized in Section 8 (a) (3) of the Act. '
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
'Respondent also requested oral argument . In our opinion, the record, the exceptions,
and the briefs fully present the issues and the positions of the parties. Accordingly, the
request is denied.
2 We note and correct two inadvertent typographical errors in footnote 2 of the inter-
mediate Report which reprints a letter of July 27, 1953, from Respondent 's representative
to the Regional Office of the National Labor Relations Board. The reprint is corrected in
the second paragraph to read "complainant" and not complaint , and in the third paragraph
to read "unfairly" and not fairly.
'N. L. R. B. v. Entwistle Mfg. Co ., 120 F. 2d 532 (C. A. 4).
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer to Guillermo Ortega immediate and full reinstate-
ment to his former, or a substantially equivalent, position,
without prejudice to his seniority or other rights and privileges.
(b) Make whole Guillermo Ortega for any loss of pay he may
have suffered by reason of the discrimination against him, in
the manner provided in the section of the Intermediate Report
entitled "The Remedy."
(c) Upon request, make available to the National Labor Re-
lations Board or its agents , for examination and copying, all
payroll records, social-security payment records, timecards,
personnel records and reports, and all other records necessary
for a determination of the amount of back pay due and the
right of reinstatement under the terms of this Order.
(d) Post at its offices , studios, and transmitter station in
San Juan , Santurce , and Sabana Grande, Puerto Rico, copies
of the notice attached to the Intermediate Report and marked
"Appendix." 4 Copies of said notice, to be furnished by the
Regional Director for the Twenty-fourth Region, shall, after
being duly signed by Respondent's representative, be posted
by Respondent immediately upon receipt thereof and main-
tained by it for a period of sixty (60) consecutive days there-
after in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Twenty-fourth Region,
in writing, within ten (10) days from the date of this Order,
what steps Respondent has taken to comply therewith.
4This notice shall be amended by substituting for the words "The Recommendations of a
Trial Examiner," the words "A Decision and Order." In the event that this Order is en-
forced by a decree of the United States Court of Appeals, there shall be substituted for the
words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United
States Court of Appeals, Enforcing an Order."
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge filed by Gremio de Prensa, Radio, Teatro y Television de Puerto Rico,
Independiente, herein called the Gremio, the General Counsel of the National Labor Relations
Board, by the Regional Director for the Twenty-fourth Region (Santurce, Puerto Rico), issued
his complaint dated against El Iv',indo BroadcastingCorporation, herein called the Respondent,
alleging that the Respondent had engaged in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8 (a) (3) and (1) and Section 2 (6) and (7) of the
National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the complaint,
the charge, and a nonce of hearing were duly served upon the Respondent and the Gremio.
With respect to the unfair labor practices, the complaint alleged that on or about June 12,
1953, the Respondent unlawfully discharged Guillermo Ortega, its employee, because of his
activities in behalf of the Gremio. The Respondent filed an answer in which it denied com-
mission of conduct violative of the Act as alleged.
Pursuant to notice, a hearing was held at Santurce, Puerto Rico, on October 27 and No-
vember 2, 1953, before Thomas N. Kessel, the undersigned Trial Examiner, duly designated
EL MUNDO BROADCASTING CORPORATION 1273
by the Chief Trial Examiner. The General Counsel and the Respondent were represented by
counsel. The Gremio was represented by its secretary-general. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence was afforded all parties.
Opportunity was given the parties to file briefs, but none has been received.
Upon the entire record in the case, and from his observation of the witnesses, the under-
signed makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Puerto Rico corporation with its principal office and place of business
in San Juan, Puerto Rico, whereitisengaged in broadcasting and transmitting radio programs.
Its main station, WKAQ, and studios are located in Santurce and its transmitter station at
Sabana Grande, Puerto Rico. During the 12-month period preceding the hearing the Re-
spondent's gross revenues from its broadcasting operations were approximately $ 300,000
of which approximately 80 percent was derived from sponsors who ship goods, supplies, and
materials from the continental United States. The parties stipulated and it is found that the
Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Gremio de Prensa, Radio, Teatro y Television de Puerto Rico, Independiente, is a labor
organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Facts relevant to the discharge of Guillermo Ortega
Ortega worked as a narrator, actor, and announcer for the Respondent from December 16,
1951, until he was discharged on June 12, 1953. The circumstances relating to his discharge
are these. After he was employed by the Respondent, Ortega joined the Association Inde-
pendiente de Artistas, herein called the Association, which he believed to be a labor organ-
ization. It is parenthetically observed that an undetermined number of the Respondent's em-
ployees belonged to the Association during the period in which the critical events herein
occurred. The Respondent would neither admit that the Association is a labor organization,
nor does the record substantiate such fact. Ortega maintained his membership in the Asso-
ciation for 8 or 10 months, and at the end of that time notified its president that he was
resigning. In May 1953 he joined the Gremio and on May 13, 1953, he signed an authorization
pursuant to which the Respondent deducted Gremio dues from his earnings. i
Upon joining the Gremio, Ortega decided to explain his reasons for this action to those of
his fellow employees who belonged to the Association. He thereupon drafted a message to
them which he presented to Ismael Delgado, the Gremio's secretary-general. Following a
discussion with Delgado who made suggestions as to the "tone" of the message, Ortega
discarded his original draft and prepared a new one which was also submitted to Delgado.
The Gremio thereupon mimeographed copies which were mailed from its office at its expense
to 45 or 50 employees of the Respondent most of whom belonged to the Association. Except
for 2 or 3, all these letters were addressed to the Respondent's radio station where the em-
ployees worked. All their names were furnished by Ortega to Delgado.
This is the communication from Ortega to his fellow employees:
(Translation)
MESSAGE TO ALL MY FELLOW WORKERS
OF THE ASSOCIACION INDEPENDIENTE
DE ARTISTAS
Dear fellow workers:
My decision of giving up the Asociacion Independiente de Artistas, my decision of
joining the Gremio de Prensa, Radio, Teatro y Television de Puerto Rico and the
i The parties stipulated that Ortega is a member of the bargaining unit covered by a
collective-bargaining contract between the Respondent and the Gremio
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason I have had in mind when taking this step is something which I feel I have the
duty to explain to you.
The major reason, among all which induced me, was the following: THE POSITION
WHICH A MEMBER OF THE ASOCIACION INDEPENDIENTE DE ARTISTAS HOLDS
IS COMPLETELY INSECURE, EXCLUSIVELY AT THE MERCY OF THE COMPANY.
That is to say, the income and the more or less participation and prestige to which
a member can aspire are plainly a matter of favoritism.
I don't believe that you are not aware of the fact that the members of the "Asociacion"
are divided in two categories: the ones who earn more, have access to the most im-
portant work and are declared "great figures"... and the ones in the heap. The
situation would not so bad if all of us had the same opportunities to get the best
positions. But it does not happen that way.
It is too verified that the merits of each artist do not determine neither his category
nor his income. What, then, determines both? The greater or lesser willingness with
which each worker accepts without protest the company's orders, even though these
are unjust. I am going to name definite examples of what I classify with the term "Un-
just": the Company through its own volition decided to rescind the guarantee agree-
ments (convenios de garantia de sueldo minimo) which it had with its employees. It
decided to reduce the number of work hours of its announcers. Decided to merge every
two novels of 1/4 hour into one novel of 1/2 hour, to pay for this novel double what is
paid for one.
To every worker who does not want to waive his right to justice within his job, every
disposition of this kind, any established discrimination, any attempt to force him to
perform a task for less than the usual price (they wanted to force me to act as master
of ceremonies during the # hour program "Musica Triumfal" for $5.00, which I re-
fused to do) provoke ill-feelings. However, this reaction will be the indelible sign which
will prevent the one bearing it his entrance to form part of the group of privileged ones.
The ones who are already inside[ said group] will have no objection to accept the under-
valuation of the work as reciprocity for the high level of their income. That is why the
Company's rule has come to be "voluntary" cooperation, understandable to a group of
persons, preposterous to the other.
The selection[ method] of the leading figures which the WKAQ has been following since
some time ago, gives way to thinking that legitimate talent instead of being the key to
progress is a handicap, or that the company in order to reduce its payroll has decided
to reduce the number of artists, beginning with the real good ones which are naturally
the more inclined to make claims, but we don't know if it is willing to eliminate the
greatest possible number. Life was made impossible at the WKAQ for Jose Hernandez
Zamora, German Negroni, Peggy Walker, Arturo Correa, Raul Delgado Cue, Raul Nacer,
Gonzalo Gonzalez, Ana Gomez, Jaime Taronji. Which one of you, after me, will be the
next victim?
Some members of the "Asociacion" have at present very good opportunities, but how
long will they last? What is their support? Is it absolutely sure that none of you will
state later on: "This is not right." or "This is not fair." And at the moment in which
he so states, the star of the one who said so will stop glittering.
What has the Asociacion Independiente de Artistas done in regard to the reduction of
the announcers-artists, in regard to the rescission of the guarantee agreements, and
in regard to the decrease in the "rate" of the J hour novels? What did the Asociacion
do in the case of Peggy Walker, extraordinary actress, to whom the company gratuitously
paid the guarantee rather than give her work?
The above deficiencies compelled me to tam my eyes over to the Gremio de Prensa,
Radio, Teatro y Television. I admitted my past misake, which I am not willing to repeat
in the future, and, as in good faith I joined the Asociacion, in good faith I abandon it.
The Gremio de Prensa, Radio, Teatro y Television de P. R. is an organization created
precisely to "claim" all the rights to which a worker is entitled to, not to expect them
as a favor. It offers to its members the opportunity to work in all the radio stations of
of Puerto Rico and opposes in an open and orderly manner every discrimination to
which the men and women of the Porto Rican radio are subjected to This letter, however,
is not aimed to induce you to join the Gremio de Prensa, Radio, Teatro y Television. I
only have a message from this group to you:
IT IS FALSE THAT IT AIMS TO TAKE ADVANTAGE OF ANY DIFFICULTIES WHICH
YOU MAY SUFFER BECAUSE OF YOUR CLAIM FOR RIGHTS. On the contrary, the
EL MUNDO BROADCASTING CORPORATION 1275
Gremio de Prensa, Radio Teatro y Television de Puerto Rico will support each and
every one of the claims which you, individually, may want to make. The deep grudge
caused in the past by our attitude against the strike has been completely forgotten by
the Grenio de Prensa, Radio, Teatro y Television de Puerto Rico in its desire to es-
tablish, above all things, justice for the workers of the Radio. And I add: even when
there Is justice only for the largest number: because I give in, this time voluntarily
and for the benefit of the majority, those rights which the Gremio, after hearing my
arguments , decides to deny to strangers.
Affectionately,
(sgd.) Gil de Ortegas
GIL DE ORTEGAS
Ventura Lamas, Jr., manager of Respondent's radio station, testified that a few days after
Ortega sent out his June 5 letter he found a copy on his desk, and, because the letter "falsely
represented the policies of the management and . . . tended to incite our employees against
the management" he discharged him. Lamas had felt that Ortega's letter was sufficient
"to incite" the employees "to make a lot of comments against the policies of the manage-
ment" with respect to matters of employment, and that by discharging Ortega he could stop
discussions of this sort. Ortega wds notified of his discharge by the following letter:
(Translation)
June 12, 1953
Mr. Guillermo Ortega
Announcer and Narrator
Sir:
After reading your message dated June 5, 1953 to all the members of the Asociacion
Independlente de Artistas, I come to the conclusion that in said message you make a
series of accusations against this radio station which in my opinion are unfounded and
unjust.
I think, therefore, that your permanence here might be interpr&ed to mean that this
radio station accepts as true the statements made in your message.
For that reason, I believe I have no other alternative but to discharge you from em-
ployment as of this date until you can prove to us the unjust statements made in your
message.
Very truly yours,
Ortega responded to this notice by the following letter:
(Translation)
Rio Piedras , June 17, 1953
Mr. Ventura Lamas
Commercial Manager of "El Mundo
Broadcasting Corporation"
Santurce
EL MUNDO BROADCASTING CORP.
(sgd.) V. Lamas, Jr.)
V. LAMAS Jr.
Commerce Manager
Sir:
As per your letter of June 12 instant I have been discharged from my work at the
WKAQ radio station and deprived of salary, as set forth by you in your communication
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of the fact that my message to the fellow workers of the Asociacion Independiente
de Artistas contains unjust and unfounded accusations.
Really, the message was not made to "accuse the company; nor to take from it the
esteem which my fellow workers feel for it. As regards the company, I was moved to do
this because I wanted to set before it in an objective and generalized manner (in case it
reached it) the unjust situations which my fellow workers as well as I were suffering
in order that the company remedy same. But the real purpose of the message was to
inform my fellow workers the reasons I had to join the Gremio de Prensa y Radio. That
is to say, an analysis of the facts from my own point of view to show to my fellow
workers that my change in attitude had not been due to stingy motives.
I think that the reasons which compelled me to join [the Gremio] are strong ones,
but the company could eliminate them without creating ill-feelings among its employees
by just giving way to a more just treatment to all. And this is for the purpose of asking
you to reinstate me.
I think I can be of service to the WKAQ in many aspects: as news announcer, as
narrator and even rewrite-man of radio comments on international affairs, as narrator,
as commercial announcer, as master of ceremonies, and as writer. All I would ask from
the Company would be that for these task I be paid in a just manner. It being understood,
of course, that the same advantages must be granted to the fellow workers whose tasks
are comparable to mine.
You cannot overlook the fact that the reading of a news program in the way I do it and
with the time I devote to its preparation is comparable to the narration of a novel. Why
then, it is not paid separately? The same can be said about the reading of comments and
of commercial programs.
As to the work which has never been assigned to me, such as actor and director of
any program, I call your attention to the fact that I have worked in the biggest radio
stations of the U.S.A. and that I have been in charge of, four comedies at WAPA. It is
then, clear, that my work would benefit the company and that it would be fair to at least
include me among the fellow workers who regularly work in the programs of the radio
station.
To conclude, this letter is for the purpose of asking you to reinstate me and not only
that, but to ask you to grant the conditions which I have always requested and which I
believe I deserve. If this last thing is not possible, I request that I be reinstated under
the conditions in which I was when the guarantee agreement (convenio de garantis de
sueldo mmimo) was respected and my income fluctuated between 60 odd and 90 odd
dollars per week.
Very truly yours,
(sgd.) G. De O.
Gil de Ortegas
#1014 Celso Barbosa, Rio Piedras
The Respondent replied to Ortega as follows:
(Translation)
June 22, 1953
Mr. Gil de Ortegas
#1014 Celso Barbosa
Rio Piedras , Puerto Rico
Sir:
In answer to your letter of June 17, I am sorry to inform you that I see no reason
why the decision set forth in my letter of the 12th instant should be changed.
Very truly yours,
W. K. A. Q., Radio El Mundo
(sgd.) V. Lamas Jr.
EL MUNDO BROADCASTING CORPORATION 1277
B. Findings and conclusions with respect to Ortega's
discharge
The General Counsel contends that Ortega 's letter of June 5, 1953 , constituted concerted
activity protected by the Act for which he was discharged by the Respondent in violation of
Section 8 (a) (3) and (1) of the Act . The Respondent defends, in substance , on the ground
that Ortega 's letter did not constitute protected activity because it contained intentional
misrepresentation calculated to foment employee discontent. 2 The General Counsel cited
2 The Respondent stipulated that its defense herein is completely detailed in the following
letter sent by its attorneys of record to the Regional Office of the Board in connection with
the investigation of this case:
San Juan 17, P. R
July 27, 1953
National Labor Relations Board
Twenty-Fourth Region
P. O. Box 9176
Santurce , Puerto Rico Attention: Mr. Robert J. Cannella,
Field Examiner
Re: El Mundo Broadcasting
Corporation
Case No. 24-CA-470
Dear Sirs:
We refer to Mr . Cannella 's letter of July 7th inviting us as counsel for the employer,
to visit your office on Tuesday , July 14th, at 10:00 A. M to discuss the possibility of
informally settling the above- designated charge. On the date and hour suggested, our
Mr. Nido and Mr. Lamas of El Mundo Broadcasting Corporation conferred informally
with your Mr. Romero on the facts surrounding this case , inasmuch as Mr . Cannella
was ill on that day.
Our discussion was somewhat general in nature, although Mr. Romero expressed
his personal view--after making it clear that no official conclusion had yet been reached--
that the facts involved did not seem to justify the dismissal of the complaint except
upon a motivation violative of the National Labor Relations Act. As he put it, the state-
ments contained in the circular which was prepared and distributed by Mr. Guillermo
Ortega and which culminated in his suspension by the employer , should have been
construed as part of his so-called union activity or propaganda on behalf of the Gremio
and that the employer , instead of dismissing Ortega, should have prepared and circulated
a statement refuting the employee 's mistaken accusations.
The employer fully recognizes the rights granted to an employee under Section 7 of
the Act and is cognizant of the provisions of Section 8 (a) (1) and ( 3) thereof. On the
other hand , the employer in good faith believes that it has the right to suspend an em-
ployee for a bona fide nondiscriminatory reason. In this instance , Mr. Ortega did not
merely change his union affiliation and engage in the ordinary and accepted form of
union activity . He went further , and without a reasonable basis or justification , falsely
represented material facts relating to the employer 's administrative practices and
policies and accused the employer squarely of exercising discrimination as to tenure
and conditions of employment against the members of the labor organization to which
Ortega formerly belonged , thus fairly and by misrepresentation inciting the employees
against the employer.
The above occurred in the absence of any labor activity , dispute or agitation for
collective bargaining at employer 's shop. The employer has a collective bargaining
agreement in force with a certain group of its employees . Ortega has never distinguished
himself as a union member, leader or agitator . The employer has been formerly ad-
vised of changes in affiliation of many of its employees and has always accepted such
changes as the employees ' valid exercise of their legal rights to belong to any union
which they select.
127 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
several precedents in his closing argument to support his theory of the case, of which only
the Board's decisions in American Shuffleboard Company, et al., 92 NLRB 1272,9 and
Westinghouse Electric Corporation, Ansonia Plant, 77 NLRB 1058, are apposite. The Re-
spondent cited only the decision of the United States Fifth Circuit Court of Appeals in
N. L. R. B. v. Atlantic Towing Company, 180 F. 2d 726, to support its position. These de-
cisions have been fully considered and are discussed below in connection with the conclusions
herein set forth.
Analysis of Ortega's letter which provoked his discharge reveals accusations against the
Respondent of employee favoritism, disregard of merit in assignment of work and income
opportunities, certain unilateral changes in working conditions adversely affecting employee
earnings, elimination from its payroll of employees unwilling to accept these conditions
without protest, and fostering employee insecurity. In connection with these accusations
Ortega mentioned the names of various persons as victims of these injustices, and alleged
instances by which he himself was victimized by the Respondent's policies. The letter also
attacks the Association as an ineffective protector of members from the Respondent's abuses,
and praises the Gremio as a staunch defender of the rights of all employees.
Ortega's disclaimer that his letter was an inducement to employees to join the Gretnio, is
a transparent subtlety, and his intention to create Association disaffection and Gremio support
among the Respondent's employees is sufficiently apparent to obviate explication. This was
sheer propaganda calculated to win members for the Gremio and should so have been reason-
ably construed by the Respondent. As such it plainly constituted assistance to a union which
unquestionably falls within the area of protection guaranteed in the Act. 5 As to that there
there appears to be no issue in this case. The defense is essentially predicated on the theory
that Ortega's conduct was removed from the area of permissible conduct because of his
allegedly false and malicious statements concerning the Respondent's treatment of its em-
ployees.
The Board has explicitly declared that the Act does not protect everything an employee may
do or say in the course of union or concerted activity, 6 and has ruled that there are certain
standards of conduct which must be observed in the course of such activity for an employee to
retain the Act's protection, t The Board, however, has determined that publication of "false"
"misleading," or "inaccurate" statements made in the course of concerted activity do not
deprive such activity of the Act's protection, provided that the statements were not "delib-
Under the above circumstances, the employer feels that it was not compelled to
blandly ignore, or engage in a public debate with Ortega regarding his false statements,
but that sound administrative policy required it to act and to act firmly so as to preserve
the moral prestige which every employer must maintain with its employees. Ortega
was suspended solely because he made deliberate misstatements of fact well known to
him, for the only purpose of exposing the employer to ridicule and unfairly creating
discontent between the employer and its employees. Employer was and is convinced that
Ortega did not make these erroneous statements in good faith.
For the above reasons, and much as the employer would like to cooperate with that
office, the employer believes that morally and legally it did not discriminatorily dis-
charge Mr. Ortega in violation of the Act.
Very truly yours,
Fiddler, Gonzalez y Nido
9Enfg. 190 F. 2d 898 (C. A. 3).
4Enf. denied 179 F. 2d 507 (C. A. 6). The Court's denial of enforcement of the Board's
order did not disturb the principal declared by the Board in its decision and upon which the
General Counsel relies in the instant case.
5 The Act specifically provides in Section 7 that employees shall have the right to assist
labor organizations. Section 8 (a) (1) of the Act makes it an unfair labor practice for an
employer to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in Section 7.
6 Westinghouse Electric Corporation, Ansonia Plan, supra.
7E. A. Laboratories, Inc., 88 NLRB 673 (calling the company president a "Fascist" or a
"Fascist lover" while distributing union literature.)
EL MUNDO BROADCASTING CORPORATION 1279
erately or maliciously false ," and further that it is immaterial to a determination that an
employer has unlawfully discharged an employee for giving currency to inaccurate infor-
mation in the course of concerted activity that the employer acted upon a good-faith belief
that the information was deliberately or maliciously false if such was not the case.8 Thus,
in the American Shuffleboard Company case, alluded to above, the Board made the foregoing
pronouncements in holding that an employer unlawfully discharged an employee who had
participated as an employee and union representative at a conference during which the em-
ployer's attorney had reported that the company's purchases and sales in a recent year had
exceeded $ 500,000 but who, in reporting to his shop committee, quoted the attorney as
having stated that the company's profits exceeded $ 500,000. In concluding that the employer
in that case had violated Section 8 (a) (3) and (1) of the Act by discharging the employee for
having deliberately and maliciously lied in reporting that it had made "fantastic earn-
ings" the Board found no evidence in the record that the report , "even if inaccurate,
was deliberately or maliciously false." Of similar import is the Board's ruling in the
Westinghouse Electric Corporation case, hereinabove cited, in which an employee was
discharged for circulating untrue statements among fellow employees to the effect that their
wage rates were less than those paid comparable employees at another of the employer's
plants, thereby creating "unrest" and "dissension." In that case the Board had found that
the employees ' statements were made in the course of unionization . In holding the employer's
conduct violative of the Act (Section 8 (3) and (1) of the Act before the current amendments)
the Board said,
The Respondent also contends that, ... it was nonetheless privileged to discharge
him [ the employee involved] for his particular conduct because the "lie-i" about the
comparative wage rates were reprehensible and therefore beyond the Act's protection.
We disagree . The statute does not protect everything an employee may do or say in the
course of union or concerted activity, but we believe that Fouty's [the employee in-
volved] conduct in this case was well within the ambit of statutory protection. For all
the record shows, Fouty did not carefully investigate the facts before asserting that the
wage rates were higher at Lima, but neither did he make those inaccurate statements
with any malice or deliberate intention to falsify. The record shows, indeed, that there
was some basis in fact for his assertions, inasmuch as the incentive bonuses earned by
the Lima plant employees were generally higher than those averaged by the less ex-
perienced Ansonia workers. Employees do not forfeit the protection of the Act if, in
discussing a matter of such vital common concern as wages, they give currency to
inaccurate or incomplete information.
Applying these controlling Board precedents to the instant case, the critical matter to be
resolved is whether Ortega's letter has been proved to be deliberately or maliciously false.
Lamas, the aforesaid station manager, testified only that he had discharged Ortega because
his June 5 letter "falsely represented the policies of the management." This is the sum
total of all the evidence in the record to prove the falsity of the letter. Ortega testified that
his letter explained to his fellow employees the manner in which he and they had been treated
by the Respondent. He was not directly questioned either on direct or cross-examination as
to the truth or falsity of his specific charges against the Respondent, but indicated that events
relating to some of the employees mentioned in the letter occurred while he was employed
by the Respondent, evidently to show that he had opportunity to learn about these events
during the course of his employment. The undersigned is not impressed with this circum-
stance as bearing on the truthfulness of the letter . There is additionally in evidence Ortega's
affirmation ofits truthfulness in his letter of June 17, 1953, written in reply to the Respondent's
June 12, 1953, letter which notified Ortega that his discharge was final unless he could
prove to the Respondent "the unjust statements made in(his] message. " This affirmation
by letter also does not establish the accuracy or truthfulness of the assertions in Ortega's
June 5 letter regarding the Respondent's policies. On the other hand, neither does Lamas'
testimony prove that Ortega had misrepresented the Respondent's policies. Certainly, his
bare assertion to that effect falls short of proving that Ortega's letter was maliciously
inspired.
8Cf. N. L. R. B. v. Industrial Cotton Mills (Division of J P. Stevens Co.), 208 F. 2d
87 (C. A. 4).
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent 's position would have been better supported had there been proof that
Ortega's letter was a gross fabrication , and that the specific actions ascribed therein to
the Respondent had no basis in fact whatever . No such showing has been made . Lamas'
conclusionary testimony did not go to the heart of this matter . Granting that his testimony
chargine Ortega with misrepresenting the Respondent ' s policies goes to prove that in his
view these policies were in fact just, fair , and without favoritism to any employee group,
it nevertheless does not prove , as Ortega wrote , that the Respondent had not unilaterally
rescinded certain guarantee agreements to employees , paid Peggy Walker her guarantee
rather than give her work, reduced the number of hours of work for announcers , merged
two quarter -hour novels into a single novel of a half hour , and pressured Ortega to act as
master of ceremonies on the "Musica Triumfal " program for $ 5. These were the factors
upon which Ortega in his letter expressly based his criticisms of the Respondent's policies.
It can hardly be said , without proof that these actions never occurred and were purely in-
ventive on Ortega's part and without any other proof to show malicious intent,9 that Ortega
was motivated by malice in giving currency to his appraisal of the Respondent's policies
toward employees . As the undersigned views the evidence , there is no clear preponderance
to establish that Ortega's letter was deliberately or maliciously false . At most there appears
a difference of opinion between Ortega and Lamas as to the fairness and justice of the Re-
spondent 's policies . It is concluded that in the absence of proof of deliberate or malicious
falsification in Ortega's letter the Respondent has failed to sustain its defense of justification
for Ortega 's discharge.
In reaching this conclusion , consideration has been given to the Atlantic Towing Company
case , supra, relied upon by the Respondent in support of its position . In that case an em-
ployee was discharged , allegedly for falsely reporting to fellow employees at an open meeting
attended by management representatives that he had overheard the employer 's manager utter
certain remarks which constituted a violation of the Act . In its decision , reported at 74 NLRB
1169 , the Board found that the employee had at most made an unintentional and negligent mis-
statement but not a deliberately false statement , and held his discharge to be violative of
Section 8 (a) (3) and ( 1) of the Act . In so doing the Board reversed the finding of the Trial
Examiner who had heard the case and who had found that the employee had deliberately and
falsely accused the employer of conduct constituting an unfair labor practice violative of
the Act . Thereafter , the United States Fifth Circuit Court of Appeals granted an order 10 of
enforcement of the Board 's decision on the ground that there was substantial evidence in the
record to support the Board 's finding that the employee had not deliberately lied as the em-
ployer had alleged . Subsequently , this court, on a petition for rehearing , set aside its order
for enforcement previously granted on the ground that it was convinced upon reconsideration
of the record that there was not substantial evidence to warrant the Board 's finding that the
employee had not deliberately lied . In its decision" the court said , "It is admitted that the
statement [ by the employee involved] was false . That statement falsely charged the Company
with a violation of the labor law . Respondent had the right to discharge[ the employee ] for
making the statement , irrespective of whether [he] knew or did not know that the statement
was false." Thus, the controlling consideration for the court 's final position was its con-
clusion that the mere utterance by an employee attributing to his employer a statement which
the employer in fact did not make and which purportedly constitutes an unfair labor practice
by the employer is ground for a justifiable discharge of that employee , and this conclusion
does not depend on whether the employee 's utterance was knowingly false and hence mali-
cious. This case then is distinguishable from the instant one, for here there is no attribution
by Ortega in his June 5 letter of conduct on the Respondent 's part which could be regarded
as an unfair labor practice , or of like conduct with equal sinister import ; nor, as the, court
ultimately found in the cited case , is it here established that Ortega had falsely accused the
Respondent of such conduct.
9It is assumed that the Board used the term "malicious" in its American Shuffleboard
and Westinghouse decisions , supr, in accordance with its accepted legal connotation. In
this sense this term refers to a state of mind on the part of one person involving Ill-will,
hatred, or hostility toward another , with a positive desire and intention to annoy or injure
that person. 34 Amer. Juris 681, sec. 2.
10 179 F 2d 497.
11 180 F . 2d 726.
EL MUNDO BROADCASTING CORPORATION 1281
On the basis of all the relevant facts of this case, it is found that the Respondent discharged
its employee Ortega for engaging in activities constituting assistance to a labor organization
thereby violating Section 8 (a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in connection
with its operations described in section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and Territories and tend
to lead to labor disputes burdening and obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, it will be
recommended that it cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
It has been found that the Respondent discriminated in regard to the hire and tenure of
employment of Guillermo Ortega. It will therefore be recommended that the Respondent be
ordered to offer to Guillermo Ortega immediate and full reinstatement to his former or
substantially equivalent position without prejudice to seniority or other rights and privileges.
See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 6,i
NLRB 827. It will further be recommended that Respondent make Ortega whole for any loss
of pay suffered by reason of the discrimination against him. Said loss of pay, based upon
earnings which he would normally have earned from June 12, 1953, the date of the discrimi-
nation against him, to the date of the offer of reinstatement, less net earnings, shall be
computed on a quarterly basis in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289, N. L. R. B. v Seven-Up Bottling Company of Miami, Inc. 344
U. S. 344.
Because the Respondent's infringement of fundamental rights guaranteed by the Act
strikes at its very heart, the commission of other unfair labor practices may thereby
reasonably be anticipated. It will therefore be recommended that Respondent cease and
desist from in any manner infringing upon the rights guaranteed its employees by Section 7
of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Gremio de Prensa, Radio, Teatro y Television de Puerto Rico, Independiente is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating with respect to the hire and tenure of employment of Guillermo
Ortega, thereby discouraging free exercise of the rights guaranteed in Section 7 of the Act
and discouraging membership and activity in the above-mentioned labor organization, the
Respondent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees that:
WE WILL NOT discourage membership and activity in Gremio de Prensa , Radio,
Teatro y Television de Puerto Rico, Independiente , or in any other labor organization
339676 0 - 55 - 82
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of our employees, by discriminating in any manner in regard to hire, tenure, or any
other term or condition of employment.
WE WILL OFFER to Guillermo Ortega immediate and fun reinstatement to his former
or substantially equivalent position, without prejudice to any seniority or other rights
and privileges, and make him whole for any loss of pay suffered as a result of the
discrimination against him.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees in
the exercise of the right to self-organization, to form labor organizations, to join or
assist the above-named or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to refrain
from engaging in any or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a condition
of employment in conformity with Section 8 (a) (3) of the Act.
All our employees are free to become or remain, or to refrain from becoming or re-
maining members of any labor organization, except to the extent above-stated.
EL MUNDO BROADCASTING CORPORATION,
Employer.
Dated ................ By..............................................................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof and must not be altered,
defaced, or covered by any other material
SYLVANIA ELECTRIC PRODUCTS, INC.and DISTRICT 98,
INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL,
Petitioner and INTERNATIONAL UNION OF ELECTRICAL,
RADIO & MACHINE WORKERS, CIO and UNITED ELECTRI-
CAL, RADIO & MACHINE WORKERS OF AMERICA. Case
No. 4-RC-2113. June 10, 1954
DECISION AND ORDER
On October 12, 1953, pursuant to a stipulation for certifica-
tion upon consent election, an election was conducted under the
direction and supervision of the Regional Director for the
Fourth Region among the production and maintenance employees
at the Employer's York, Pennsylvania, plant. At the conclusion
of the election, it appeared that none of the 4 choices on the
ballot had received a majority of the valid votes cast. Accord-
ingly, on October 26, 1953, the Regional Director conducted a
runoff election with the Intervenor, United Electrical, Radio &
Machine Workers of America, herein called UE, as the only
labor organization on the ballot. The tally of ballots prepared
at the conclusion of the runoff election showed that 9 ballots
challenged by the UE were determinative of the outcome of the
108 NLRB No. 182.