El Mundo Corp.

National Labor Relations Board - Board Decisions

Jan 25, 1991

301 N.L.R.B. 351 (N.L.R.B. 1991)

351
301 NLRB No. 52
EL MUNDO CORP.
1 The Respondent excepts to the judge’s taking official notice of the United
States district court’s factual findings in the related 10(j) proceeding. We find
no merit in the Respondent’s exception because it mischaracterizes the judge’s
action. The Respondent correctly argues that a court order issued under Sec.
10(j) of the Act establishes only that there is ‘‘reasonable cause to believe’’
that violations have been committed. The judge here did not, however, rely
on the district court findings as a substitute for consideration of evidence in
this record. Rather he treated them as a convenient listing of relevant factual
allegations; and he determined that they were either stipulated to by the parties
in this proceeding or otherwise not contested by the Respondent and that they
were consistent with all the evidence in the proceeding.
2 The Respondent has 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 evi-
dence 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 ex-
amined the record and find no basis for reversing the findings. We also find
without merit the Respondent’s allegations of bias and prejudice on the part
of the judge. After full consideration of the record and the judge’s decision,
we perceive no evidence that the judge made prejudicial rulings or dem-
onstrated bias against the Respondent. No party has excepted to the judge’s
finding that the subcontracting of distribution work in the circulation depart-
ment was a mandatory subject of bargaining.
3 In sec. V,(B) of the decision, the judge found an 8(a)(5) violation based
on the Respondent’s refusal to honor agreements previously reached with the
Union on September 10, 1987. We do not rely on the judge’s analysis of this
issue. We find that the Respondent violated Sec. 8(a)(5) by its refusal to rec-
ognize and bargain with the Union on December 22, 1987. We find, in agree-
ment with the judge, that the Respondent was a successor and, as such, had
an obligation to recognize and bargain with the Union and to reinstate the
terms and conditions of employment that were in effect when El Mundo Inc.
closed its operations on August 30, 1987. See Love’s Barbecue, 245 NLRB
78 (1979), enfd. in pertinent part sub nom. Kallman v. NLRB, 640 F.2d 1094,
1102–1103 (9th Cir. 1981); State Distributing Co., 282 NLRB 1048 (1987).
This finding is consistent with the judge’s Conclusions of Law.
In finding that employee Roberto Jusino’s discharge violated Sec. 8(a)(3),
the judge states that the General Counsel had the burden to prove that pro-
tected concerted activities were the motivating factor in the Respondent’s deci-
sion to terminate Jusino, citing Wright Line, 251 NLRB 1083 (1983). The cor-
rect test under Wright Line is whether protected concerted activities were a
motivating factor in the discharge. We find that the General Counsel estab-
lished that protected concerted activities were a motivating factor in Jusino’s
discharge and the Respondent failed to rebut the General Counsel’s prima
facie case. Therefore, the discharge violated Sec. 8(a)(3).
The Respondent excepts to the judge’s reliance on the Respondent’s dis-
criminatory hiring practices for his determination that, absent unfair labor
practices, the Respondent would have hired a majority of the predecessor’s
employees and that, therefore, pursuant to State Distributing Co., 282 NLRB
1048 (1987), the record supports a finding of work force continuity for pur-
poses of successorship. In particular, the Respondent contends that the judge’s
use of the discriminatory hiring evidence is inconsistent with the Board’s deci-
sion in Kessel Foods, 287 NLRB 426 (1987), enfd. 868 F.2d 881 (6th Cir.
1989), cert. denied 110 S.Ct. 76 (1989). We disagree. Here, unlike in Kessel
Foods, there was evidence showing that the Respondent’s agents made numer-
ous statements to employees indicating that it would be futile for them to
apply for jobs with the Respondent because of their previous union affiliation.
4 The General Counsel and the Charging Party have excepted to the inad-
vertent omission of Angel Baez from the attachment to the Appendix. We find
merit to the exceptions and shall revise the attachment to include the name
‘‘Angel Baez.’’
The judge states in the remedy portion of his decision that, ‘‘Reinstatement
shall be made on the basis of seniority in a manner consistent with the Rem-
edies provided in State Distributing Co., 282 NLRB 1048 (1987), and Service
Operations Systems, 272 NLRB 1033 (1984), and with the call back list pre-
pared by Respondent on September 17, 1987.’’ To avoid any confusion, we
clarify that reinstatement shall be made first on the basis of the September
17, 1987 call-back list, even though some names on the list may deviate from
seniority. After the call-back list is exhausted, reinstatement shall be made on
the basis of seniority. Additionally, if there are an insufficient number of posi-
tions for those ordered reinstated, a preferential hiring list shall be maintained
in order of seniority.
We find that backpay should run from November 9, 1987, the date Re-
spondent began assembling its work force. The record establishes that the Re-
spondent had devised a discriminatory hiring scheme prior to November 9,
1987, and that it was used in hiring employees beginning on November 9,
1987.
Finally, we agree with the judge that a broad cease-and-desist order is nec-
essary because the Respondent has demonstrated a ‘‘general disregard for [its]
employees fundamental statutory rights.’’ Hickmott Foods, 242 NLRB 1357
(1979).
El Mundo Corporation and Worldwide Manage-
ment Corporation and Union de Periodistas y
Artes Graficas y Ramas Anexas de Puerto
Rico, Local 225, a/w The Newspaper Guild,
AFL–CIO, CLC. Cases 24–CA–5714 and 24–
CA–5761
January 25, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On June 16, 1989, Administrative Law Judge Rich-
ard H. Beddow Jr. issued the attached decision. The
Respondent and the Charging Party each filed excep-
tions and supporting briefs, the General Counsel filed
a brief in support of the judge’s decision, cross-excep-
tions, and a supporting brief. The Respondent filed an
answering brief to the Charging Party’s exceptions, the
General Counsel filed a brief in answer to the Re-
spondent’s exceptions, and the Charging Party filed an
answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions,3 to modify the remedy,4 and to adopt the rec-
ommended Order as modified.
1. In reaching his decision in this case, the judge
struck the testimony of the Respondent’s witnesses be-
cause substantial record evidence established that the
witnesses, who had been sequestered pursuant to the
rule set out in Unga Painting Corp., 237 NLRB 1306
(1978), were nonetheless shown, often by the Re-
spondent’s attorneys, various portions of the transcripts
of the testimony of both the General Counsel’s and the
Respondent’s witnesses. We do not approve of the Re-
spondent’s showing sequestered witnesses the tran-
scripts of other witnesses’ testimony. Rather than strike
the tainted testimony entirely, however, we believe the
352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
better course here is to scrutinize the tainted testimony
closely, mindful of that taint as a factor in determining
credibility.
In scrutinizing that testimony, we accord our usual
deference to the judge’s credibility determinations.
Thus, while the judge ultimately struck the testimony
of the Respondent’s witnesses, he also made numerous
independent determinations of the credibility of the
Respondent’s witnesses’ testimony. We rely on the
judge’s findings discrediting such testimony in reach-
ing our decision. Further, we stress that the judge
found the testimony of the General Counsel’s wit-
nesses to be ‘‘independently persuasive and corrobora-
tive and inherently more credible than the contradic-
tory denials and explanations offered in the stricken
testimony of the Respondent’s witnesses.’’ The judge
stated in this regard (supra at 367):
[T]he General Counsel’s non-hostile witnesses
testified in a forthright and credible manner,
whereas the testimony of the Respondent’s several
witnesses displayed evasiveness, contradictions,
evidence of unreliability, and especially in the tes-
timony of Sostre and Negron, the probability of
collusion between them.
The judge also found that ‘‘The testimony of the vast
majority of the Respondent’s direct witnesses is tainted
by inherent untrustworthiness as a result of the clear
and repetitious violations of the sequestration order’’
(supra at 358) and that the ‘‘likelihood that such testi-
mony is unreliable is so substantial that it equates to
a showing that General Counsel and the Charging
Party have been prejudiced . . . .’’
Based on the judge’s findings as to the credibility of
witnesses, and our own independent review of the tes-
timony, we find that the Respondent’s witnesses were
not credible and that the General Counsel’s witnesses
were independently persuasive.
2. The General Counsel contends that a visitatorial
clause is necessary in this case. The General Counsel
asserts that because the Respondent reduced the wages
and benefits of all of its employees and modified or
eliminated all the terms and conditions of employment
of its employees, the task of gathering evidence to re-
solve these issues will be substantial and complex, thus
necessitating expanded access to certain documents.
The General Counsel also contends the visitatorial
clause is necessary to ensure the Respondent’s co-
operation, because the Respondent has demonstrated a
propensity to renege on agreements and may well seek
to evade compliance. In addition, the General Counsel
argues that a visitatorial clause is needed in particular
to aid in the determination of backpay owed as a result
of the Respondent’s subcontracting of certain circula-
tion department work. The General Counsel points out
that there have been at least 117 such subcontractors.
The judge denied the General Counsel’s request be-
cause he concluded, based on the Respondent’s con-
duct after the issuance of the order in the 10(j) injunc-
tive proceeding, that it was not continuing in its pat-
tern of evasion.
As the Board did in 299 Lincoln Street, Inc., 292
NLRB 172 at 175 (1988), we decline to grant a broad
visitatorial clause like that at issue in Cherokee Marine
Terminal, 287 NLRB 1080 (1988); but we find a rea-
sonable basis for granting a more limited one, tailored
to the facts of the particular case. In particular, we find
it warranted to require the Respondent to preserve and
furnish on request records pertaining to the subcon-
tracting of circulation department work, because those
will be needed to determine the backpay of
discriminatees affected by that subcontracting. We
shall modify the recommended Order accordingly.
We also shall modify the recommended Order to
provide that copies of the notice shall be mailed to all
persons listed on the attachment to the appendix at
their last known address.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, El
Mundo Corporation, Hato Rey, Puerto Rico, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 2(c).
‘‘(c) On request of the above Union, retroactively
restore the terms and conditions of employment that
existed immediately before it purchased the El Mundo
Corp. operations, including wage rates and benefits
that would have been paid absent unlawful changes
from December 22, 1987, until it negotiates in good
faith with the Union to agreement or to impasse; this
also includes rescission of the unilateral subcontracting
of unit work in the circulation department including re-
instatement of the work previously performed by the
district managers, district managers leadpersons, col-
lectors, district coordinators, prepaid subscription clerk,
newspaper distribution schedule clerk, and complaint
mail subscription clerk. The remission of wages shall
be computed as prescribed in Ogle Protection Services,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), plus interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). The Respond-
ent shall remit all payments it owes to the employee
benefit funds and reimburse its employees in the man-
ner set forth in Kraft Plumbing & Heating, 252 NLRB
891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981),
for any expenses resulting from the Respondent’s fail-
ure to make these payments. Any amounts that the Re-
spondent must pay into the benefit funds shall be de-
353EL MUNDO CORP.
termined in the manner set forth in Merryweather Op-
tical Co., 240 NLRB 1213 (1979).’’
2. Substitute the following for paragraph 2(f).
‘‘(f) Preserve and, on request, make available to the
Board or its agents for examination and copying all
payroll records, timecards, personnel records, reports
and other documents necessary to analyze Respond-
ent’s compliance with the employment offer provisions
and the amount of backpay due under the terms of this
decision. Additionally, preserve and, on request, make
available to the Board or its agents for examination
and copying all legal documents, correspondence,
memoranda, pay records and any other records or doc-
uments relating to backpay for subcontractors per-
forming circulation department work.’’
3. Insert the following as paragraph 2(h) and reletter
all subsequent paragraphs accordingly.
‘‘(h) Mail a copy of the notice marked ‘‘Appendix’’
to all employees on the attachment to the appendix at
their last known address. The notice shall be in both
English and Spanish and shall be duly signed by the
Respondent on forms provided by the Regional Direc-
tor for Region 24.’’
4. Substitute the following attachment for that of the
administrative law judge.
Attachment
1. Abreu Martinez, Nestor
2. Acevedo Colon, Angel
3. Acevedo Nunez, Jaime
4. Adorno, Guillermo
5. Agosto Montanez, Angel M.
6. Agosto Morales, Tomas
7. Alamo Colon, Alejandro
8. Alers Roldan, Rafael
9. Alicea Ramos, Jose Luis
10. Alvarez, Hiram E.
11. Alvarez Aponte, Miguel
12. Alvarez Escalera, Jose
13. Alvarez Ramos, Hermenegildo
14. Alvarez Rodriguez, Angel
15. Ambert, Hector
16. Andino Pagan, Enrique
17. Angueira, Victor M.
18. Aponte Ocasio, Librado
19. Arana Liduvina
20. Arce Santiago, Luis
21. Arroyo, Miguel
22. Asencio Ramirez, Danny
23. Astacio Burgos, Gladys
24. Avila, Fernando
25. Aviles Ortiz, Angel
26. Ayala, Rafael
27. Baez Perez, Agustin
28. Bally Garcia, Rafael
29. Barreiras Torres, Rosario
30. Beardsley, Clarence
31. Bernard, Antonio
32. Berrios, Nelson
33. Betances Bonilla, Manuel
34. Boob Margaret
35. Borras, Gloria
36. Bracetty, Jorge
37. Bultron Rosa, Ramon Amed
38. Buso Rodriguez, Lourdes M.
39. Caban Sanchez, Jaime A.
40. Cabanas Santiago, Ana M.
41. Cabrera Agustin
42. Cabrera, Alba Raquel
43. Cabrera, Carlos
44. Cabrera Rivera, Evelyn
45. Calderon Roman, Maria A.
46. Camareno Rivera, Felix
47. Campos Romero, Pedro
48. Cano Serrano, Rafael
49. Cantres, Ramon
50. Cao, Jose
51. Capacetti Carbonell, Julio A.
52. Capacetti Carbonell, Julio A.
53. Caraballo, Jorge Luis
54. Carrasquillo Conzalez, Rafael
55. Carrasquillo Sola, Roberto
56. Castro Basabe, Jose E.
57. Castro Estremera, Felix N.
58. Castro Velez, Alfredo
59. Cedeno Morales, Angel M.
60. Cestau Ruiz, Luis
61. Colon Acosta, Jose E.
62. Colon Gonzalez, Jose
63. Colon Gonzalez, Manuel
64. Colon Rodriguez, Jose R.
65. Contreras Lozano, Nestor
66. Cordero Torres, Sonia I.
67. Cortes Jimenez Edwin
68. Cruz, Carlos
69. Cruz, Jose D.
70. Cruz Cortes, Isabel
71. Cruz Vazquez, Jose Antonio
72. Dalmau, Luis R.
73. Davila Cardona, Francisco
74. De Jesus Vazquez, Enrique
75. De Jesus Vazquez, Juan A.
76. De Leon Pedraza, Isabel
77. De Leon Vazquez, Miguel A.
78. Delgado Santana, Isieal
79. Diaz, Maria A.
80. Diaz Rosalie
81. Diaz Alcaide, Maritza
82. Diaz Lopez, Rafael
83. Diaz Mendez, Rafael
84. Diaz Rosado, Miguel A.
85. Diaz Santiago, Antonio
86. Droz, Ana Socorro
87. Espinosa Martinez, Luis
354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
88. Esquerdo, Heriberto
89. Esteves Orriola, Arcelio
90. Estrada Ortega, Angel
91. Feliciano Tirado, Rafael
92. Felix Perez, Hector Luis
93. Fernandez, Jose Arturo
94. Fernandez Gonzalez, Erasmo
95. Ferrer, Melba
96. Figueroa, Maria D.
97. Figueroa Adorno, Victor
98. Figueroa Agosto, Jesus
99. Figueroa Lopez, Juan
100. Figueroa Nieves, Manuel
101. Figueroa Santiago, Jesus
102. Figueroa Torres, Jose Ivan
103. Flores Ojeda, Pedro
104. Fuentes Fuentes, Roman A.
105. Fuentes Ramos, Jorge
106. Galan Vargas, Julio
107. Garcia, Nestor
108. Garcia Cruz, Jose Manuel
109. Garcia de Gracia, Rafael
110. Garcia Fontanez, Francisco
111. Garcia Parrilla, Hugo Humberto
112. Garcia Santana, David
113. Garrastazu Torche, Arturo
114. Gaston Monsanto, Juan
115. Gatell Toro, Rafael
116. Gerena, Raul
117. Gomez Barrantes, Maria V.
118. Gonzalez, Damaso
119. Gonzalez, Vicente
120. Gonzalez Cordero, Juan I.
121. Gonzalez Cruz, Graciliano
122. Gonzalez Gruz, Luis
123. Gonalez Gonzalez, Felix
124. Gonzalez Gonzalez, Ismael
125. Gonzalez Nolasco, Jose L.
126. Gonzalez Reyes, Alberto
127. Gonzalez Reyes, Obdulio
128. Gonzalez Rivera, Michael
129. Grande la Greta, Vicenzo
130. Guadalupe, Juan M.
131. Gutierrez Lopez, Jesus
132. Guzman Rivera, Francisco
133. Guzman Santiago, Ruben
134. Hernandez Flecha, Juan
135. Hernandez Melendez, Abraham
136. Hernandez Pereira, Jose R.
137. Hernandez Sanchez, Norberto
138. Hernandez Santana, Juan
139. Hernandez Solis, Juan R.
140. Hernandez Vazquez, Digna
141. Herrera Caban, Edwin
142. Hiraldo, Hector Antonio
143. Horta Acevedo, Jose Roberto
144. Irrizarry Gonzalez, Miguel A.
145. Irizarry Pagan, Roberto
146. Jephoth, Angel L.
147. Jimenez Colon, Juan
148. Jimenez Diaz, Pedro
149. Jimenez Resto, Gloria
150. Jimenez Rios, Juan B.
151. Jordan, Jose M.
152. Lara Figueroa, Hector
153. Lasalle Morales, Eduardo
154. Leon Quiles, Jorge
155. Lopez, Gumersindo
156. Lopez, Arbelo Luis A.
157. Lopez Henriquez, Wanda
158. Lopez Lopez, Hector E.
159. Lopez Molina, Pedro
160. Lopez Nieves, Jose
161. Lopez Santiago, Jose Rafael
162. Loudeluciano, Alina De
163. Lugo Soto, Luis A.
164. Maisonet Perez, Hector
165. Maldonado Perez, Fernando
166. Malespin Guerrero, Rafael
167. Mangual Budet, Francisco
168. Mangual Gerena, Eduardo
169. Marrero, Felicita
170. Marrero, Rafael
171. Marrero Molina, Ramon
172. Marrero Rivas, Carmelo
173. Martinez, Francisco
174. Martinez Aponte, Miguel
175. Martinez Perez, Luciano
176. Martinez Ramos, Jose Manuel
177. Medina Irizarry, Reinaldo
178. Medina Ponce, Juan
179. Mejias, Robert
180. Melecio Diaz, Joaquin
181. Melendez, Carmen Socorro
182. Melendez Melendez, Cristobal
183. Melendez Reyes, Edgardoo
184. Mendez Crespo, Miguel Angel
185. Mendez Gonzalez, Armando
186. Mercado, Concepcion
187. Mercado Lisboa, Ramon
188. Millan Pabon, Carmen
189. Molina Otero, Luis G.
190. Molina Rosa, Antonio
191. Montalvo Alicea, Amado
192. Montalvo Montalvo, Antonio
193. Montanez Ortiz, Aurea E.
194. Montero Ramirez, Jorge L.
195. Montes Mendez, Exor
196. Morales, Felipe
197. Morales, Victor Manuel
198. Morales Lozada, Carpio
199. Melecio Diaz, Joaquin
200. Morales Mediavilla, Rafael
201. Morales Pereira, Edwin
355EL MUNDO CORP.
202. Morales Vega, Natanel
203. Moreno Algarin, Guillermo
204. Moreno Arroyo, Carlos
205. Morgado San Inocencio, Jesus
206. Muniz Correa, Israel
207. Munoz Jimendez, Miguel
208. Muriel Pizarro, Angel L.
209. Narvaez de Ortiz, Delia
210. Negron Lopez, Jesus
211. Negron Ortiz, Jose Luis
212. Nieves, Miguel A.
213. Mogueira, Rafael
214. Noguet Irizarry, Pedro
215. Ocasio Martinez, Feliz
216. Ocasio Matos, Israel
217. Olaguibel Ramirez, Roberto
218. Oquendo Alejandro, Victor
219. Orengo Marti, Hector Luis
220. Ortiz, Jaime L.
221. Ortiz Figueroa, Reynaldo
222. Ortiz Garcia, Jorge L.
223. Ortiz Mercado, Nellie
224. Ortiz Otero, Bienvenido
225. Ortiz Santini, Irma V.
226. Ortiz Torres, Lydia
227. Ovalle Lunas, Cristobal
228. Oyola Rivera, Samuel
229. Pacheco Rodriguez, Nelson
230. Padilla, Edwin
231. Padilla Rivera, Anthony
232. Padilla Rivera, William
233. Pagan Ayala, Hector
234. Pastrana Rosa, Gilberto
235. Pena Arzuaga, Arturo
236. Perez Castro, Fedora
237. Perez Mamondi, Franklin A.
238. Perez Miranda, Melvin
239. Perez Oquendo, Jose A.
240. Perez Perez, Lydia
241. Perez Vizcarrondo, Orlando
242. Pietri Romero, Radames
243. Pina Ramos, Hector
244. Pinero Lauer, Efrain
245. Pinero Medina, Deliz
246. Pineiro Seda, Miguel A.
247. Ponce Cotto, Carlos
248. Quijano Vega, Jose A.
249. Quiles Diaz, Carmen
250. Quinones Baez, Alberto
251. Quinones Colon, Angel
252. Ramirez, Victor
253. Ramos, Edelmiro
254. Ramos de Alvarez, Andrea
255. Ramos de Alvarez, Andrea
256. Ramos Lopez, Juan R.
257. Romos Ortiz, Nestor
258. Ramos Rodriguez, Enrique
259. Ramos Rosa, Carlos
260. Ramos Rosado, Edgar
261. Reyes Fernandez, Jose Manuel
262. Rios Ibarra, Jaime
263. Rios Oliveras, Jose
264. Rivas Santiago, Hector
265. Rivas Santos, Juan
266. Rivera, Ana M.
267. Rivera, Angel Luis
268. Rivera, Eduardo
269. Rivera, Jose E.
270. Rivera, Jose Joaquin
271. Rivera, Luis
272. Rivera, Maria de L.
273. Rivera, Rafael
274. Rivera Aviles, Santiago
275. Rivera Castellano, Angel Luis
276. Rivera Cosme, Jorge
277. Rivera Corraliza, Pablo
278. Rivera Figueroa, Miguel A.
279. Rivera Flores, Rosario
280. Rivera Garcia, Luis
281. Rivera Marrero, Edgardo
282. Rivera Ortiz, Santos
283. Rivera Otero, Miguel
284. Rivera Rivera, Fernando Luis
285. Rivera Santiago, Carlos
286. Rivera Santiago, Hector L.
287. Rivera Santos, Ramon
288. Rivera Sierra, Wilfredo
289. Rivera Vargas, Adalberto
290. Rivera Vega, Ramon L.
291. Robinson Cox, Edwin
292. Robles, Blanca M.
293. Rodriguez, Dolores
294. Rodriguez, Edith V.
295. Rodriguez, Ramon
296. Rodriguez, Jose Israel
297. Rodriguez Alicea, Fidel
298. Rodriguez Baez, Francisco
299. Rodriguez Bello, Evelyn
300. Rodriguez Diaz, Ernesto
301. Rodriguez Millan, Jose A.
302. Rodriguez Miranda, Jose E.
303. Rodriguez Perez, Agustin
304. Rodriguez Perez, Elias
305. Rodriguez Ramos, Enrique A.
306. Rodriguez Santana, Israel
307. Rodriguez Vazquez, Luis
308. Roig Mejia, Salvador
309. Rojas Cummings, Arnaldo
310. Rojas Rodriguez, Luis
311. Rolon Rosa, Juan
312. Roman, Gloria
313. Roman Bonet, Anibal
314. Roman Medina, Pablo
315. Roman Mestry, Bonifacio
356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All following dates will be in 1987 unless otherwise indicated.
316. Roman Perez, David
317. Romero Arrocho, Julio J.
318. Romero Cuevas, Luis
319. Romero Melecio, Victor
320. Saez Caraballo, Francisco
321. Saldana Puente, Annie
322. Salas Lopez, Eduardo
323. Salgado, Mariano
324. Sanchez, Jose Luis
325. Sanchez, Juan Ramon
326. Sanchez Albert, Francisco
327. Sanchez Cartagena, Domingo
328. Sanchez Concepcion, Margarita
329. Sanchez Dieppa, Jose Raul
330. Sanchez Guzman, Juan
331. Sanchez Puchales, Anibal
332. Sanchez Quinones, Ivan
333. Santaella Soto, Leoncio
334. Santana Natos, Pedro R.
335. Santiago, Gladys E.
336. Santiago, Hipolito
337. Santiago, Jesus M.
338. Santiago, Miguel
339. Santiago, Ruben
340. Santiago, Victor Luis
341. Santiago Irizarry, Miguel
342. Santiago Martinez, Gilberto
343. Santiago Rodriguez, Hector
344. Santiago Rodriguez, Jose E.
345. Santiago Rodriguez, Victor
346. Santiago Soto, Salvador
347. Santiago Vidal, Migdalia
348. Santos Cintron, Pablo
349. Santos Negron, Samuel
350. Santos Ramos, Hector
351. Santos Santiago, Luis Alexis
352. Serrano, Carlos
353. Silva, Claudio
354. Sola Gomez, Jose
355. Solano Correa, Amalia
356. Soto Aquino, Wilfredo
357. Soto Rolon, Rosario
358. Soto Santiago, Francisco
359. Tirado Negron, Fortunato
360. Torres, Luis A.
361. Torres, Ruben Dario
362. Torres Anaya, Osvaldo
363. Torres Curz, Domingo
364. Torres Droz, Edelmiro
365. Torres Fernandez, Victor M.
366. Torres Gonzalez, Juan
367. Torres Lora, Eddie
368. Torres Lugo, Hector
369. Torres Maldonado, Max
370. Torres Medina, Nestor
371. Torres Mendez, Francisco
372. Torres Montalvo, Zulma
373. Torres Ortiz, Victor
374. Torres Ramos, Victor M.
375. Torres Reyes, Nelson
376. Torres Soto, Israel
377. Toro Vazquez, Jesus
378. Tricoche Rivera, Jose
379. Vaello, Ramon F.
380. Valentin Castro, Carlos F.
381. Valentin Castillo, Carlos F.
382. Valentin Medina, Enrique
383. Vargas, Efrain
384. Vargas Badillo, Jose E.
385. Vargas Lopez, Milton David
386. Vargas Sales, Adolfo
387. Vargas Valentin, Angel Luis
388. Vazquez, Jose Ramon
389. Vazquez Diaz, Ramon
390. Vazquez Goden, William
391. Vega Agosto, Ruben
392. Vega Sierra, Raul
393. Velazquez Diaz, Tomas
394. Velazquez Ortiz, Daniel
395. Velez Aleman, Carlos Juan
396. Velez Pena, Ramon
397. Velez Reyes, Rogel
398. Velez Santiago, Haydee
399. Vigo Zenon, Juan A.
400. Vielella Diaz, Jose Javier
401. Villahermosa, Astroberto
402. Villanueva Maldonado, Angel
403. Villodas Rivera, Teofilo
404. Zapata Torres, Norman
Antonio F. Santos, Esq. and Raymond E. Morales, Esq., for
the General Counsel.
Miguel A. Palou, Esq. and Yolanda Toyos, Esq., of Hato
Rey, Puerto Rico, for the Respondent.
Ginoris Vizcarra DeLopz-Lay Esq., of Santurce, Puerto Rico,
for the Charging Party.
Tristan Reyes-Gilestra, Esq., of San Juan, Puerto Rico, for
Fundacion Angel Ramos, Inc.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW, JR., Administrative Law Judge.
This matter was heard in Hato Rey, Puerto Rico, on August
1 and 3, 9–12, 15–18, September 7–9, and 12–16, 1988. The
proceeding is based on charges filed December 29, 1987,1
and March 16, 1988, as subsequently amended, by Union de
Periodistas y Artes Graficas y Ramas Anexas de Puerto Rico,
Local 225, a/w The Newspaper Guild, AFL–CIO, CLC. The
Regional Director’s consolidated complaint dated April 29,
1987, as subsequently amended, alleges that Respondent, El
Mundo Corporation (previously known as Worldwide Man-
agement Corporation), of Hato Rey, Puerto Rico, is a succes-
sor of El Mundo, Inc. and that it violated Section 8(a)(1) of
357EL MUNDO CORP.
the Act by: instructing its employees to cease engaging in
union activities and threatening its employees with unspec-
ified reprisals if they engage in union activities; informing its
employees that Respondent would not hire any former em-
ployees of Respondent’s predecessor, El Mundo, Inc., or em-
ployees who were members or representatives of the Union;
stating that it was limiting its hiring of employees rep-
resented by the Union; informing its employees that working
nonunion was a condition of employment and conditioning
the hiring of employees on their refraining from engaging in
union activities; requesting its employees to recruit employ-
ees for hire who were not members of the Union; informing
its employees that it would not reinstate those employees
whom it had discharged because of their union activities;
stating that it would prevent the Union from representing its
employees; and interrogating employees about the employ-
ees’ sympathies for the Union; that Respondent violated Sec-
tion 8(a)(1) and (3) of the Act by refusing to consider for
employment and to employ the employees who were pre-
viously employees of El Mundo, Inc., because those employ-
ees joined and supported the Union in order to avoid an obli-
gation to recognize and bargain with the Union as the legal
successor to El Mundo, Inc., and by discharging Roberto
Jusino because he joined and supported the Union and en-
gaged in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection; and that
Respondent violated Section 8(a)(1) and (5) of the Act by re-
fusing to recognize and bargain with the Union in good faith
and by unilaterally modifying or eliminating the wages, ben-
efits, and terms and conditions of employment.
Subsequent to an extension of the filing date, briefs were
filed by the General Counsel, Respondent, and the Charging
Party. On a review of the entire record in this case and from
my observations of the witnesses and their demeanor, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation. It admits that at all
times material it is and has been an employer engaged in op-
erations affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act. It also admits that the Union
is a labor organization within the meaning of Section 2(5) of
the Act.
II. PROCEDURAL MATTERS—VIOLATIONS OF THE
SEQUESTRATION ORDER
In response to a request by the General Counsel, witnesses
were sequestered pursuant to Rule 615 of the Federal Rules
of Evidence, see Unga Painting Corp., 237 NLRB 1306
(1978), and all potential witnesses left the court room with
the exception of designated representatives, specifically
Union Representative Angel Baez and Respondent’s current
personnel manager, William Cuevas.
The General Counsel concluded his presentation of direct
witnesses on August 17 and the transcripts of their testimony
were available to the parties when the hearing resumed on
September 7. During cross-examination by the General
Counsel, Respondent’s witnesses (except Patricia Eaves and
Jose A. Avila) testified that they had been given a copy of
the transcript as part of their trial preparation in order to read
portions of the testimony of witnesses presented by the Gen-
eral Counsel.
The most revealing testimony in this regard was that of
Circulation Manager Graciliano Sostre (who initially had
been called as a hostile witness by the General Counsel).
Sostre testified that Toyos, Respondent’s co-counsel, pro-
vided him with the testimony of Roberto Jusino. He was also
given the testimony of Subscription Manager Rafael Negron
which had been given during a 10(j) proceeding at the
United States District Court that was held between August
23 and 25. Sostre admitted discussing his testimony with
Negron at the District Court. Sostre further admitted that he
invited Negron to his office to discuss the testimony given
by the witnesses, and to discuss their own testimony between
themselves. After they finished, Sostre gave Negron a copy
of the testimony given by Jusino and asked Negron to meet
with Respondent’s city manager, Angel Noriega, to discuss
the testimony. Negron denied meeting with Noriega to show
him the transcript of the testimony of Jusino and Negron;
however, Sostre said that he saw both Negron and Noriega
meet for that purpose at Negron’s office and Negron admit-
ted that Attorney Toyos gave him a copy of the transcript
of the testimony of Jusino, Moreno, and Pablo Roman.
Moreover, Negron admitted that he met on several occasions
with both counselors Palou and Toyos to discuss Sostre’s
and Noriega’s testimony and that during some of these meet-
ings other witnesses for the Employer were present.
The record shows that either Attorney Palou or Toyos (or
both) provided copies of the transcripts and participated in
contemporaneous discussions with Respondent’s witnesses
and that witnesses read the testimony of other witnesses, and
discussed it amongst themselves. Specifically, Production
Manager Orlando Santos Leon testified that Attorneys Palou
and Toyos showed him the transcript of the testimony of sev-
eral witnesses who already had testified. Editor Luis Villares
testified that he was shown by counsel the testimony of two
witnesses that had previously testified at the hearing. Cesar
Rodriguez testified that Respondent’s attorneys gave him a
copy of the testimony to read of a witness who had pre-
viously testified at the hearing, and had mentioned his name.
Also, Chief of Photography Edwardo Figueroa admitted
meeting with counsel and being shown the transcript testi-
mony of a prior witness as did Jose Ivan Aldea and Luis
Villares.
Orlando Santos and Cesar Rodriguez were shown tran-
scripts of other witnesses and met with Attorneys Palou and
Toyos, respectively, prior to testifying. Rodriguez is Re-
spondent’s computer supervisor, who reports to Jose Avila,
the MIS Manager. Avila and Advertisement Department
Head Patricia Eaves both denied that they were given a copy
of the transcript to read, however, I agree with the the Gen-
eral Counsel’s contention that in light of Respondent coun-
sel’s meticulous habit of showing the transcript to his wit-
nesses, it is highly improbable that he would not have shown
the transcript to these two persons. These witnesses other-
wise admit to meeting with counsel as well as with Personnel
Director Cuevas, who was present during most of the earlier
testimony, and, accordingly, I do not credit their denials re-
garding their awareness of the testimony of other witnesses.
Respondent contends that the parameters of the sequestra-
tion order, as applicable to the Respondent, were not defined
in such a way as to prohibit the reading of transcripts by po-
358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tential witnesses. It also argues that the General Counsel has
made no showing of prejudice and that, accordingly, the ex-
clusion or disallowance of a witness testimony is not war-
ranted. It also argues that the evidence presented by Re-
spondent as it pertains to the portions of the transcript made
available to his witnesses related to matters involving, for the
most part, the rebuttal of the testimony presented by General
Counsel’s witnesses. It then contends that rebuttal witnesses
do not fall within the sequestration rule, citing Hughes v.
State, 148 S.W. 543, and U.S. v. Hall, 653 F.2d 1002, 1006
(1981).
First, I find that the evidence subject to the General Coun-
sel’s motion is not rebuttal evidence but direct evidence of
the Respondent’s case in chief. Moreover, the Hall case cited
by Respondent was a criminal case not involving sequestra-
tion and is not applicable to the present situation.
The purpose of sequestration is to preclude communication
among witnesses in order to enhance the probability that they
will each tell their own recollection of events, uninfluenced
by contemporaneous accounts by other persons. The primary
and most direct method of communication precluded is the
direct observation of and listening to any other witnesses’
testimony prior to the time a subsequent witness is called to
testify. Witnesses also are precluded from discussing their
testimony or that of others among themselves. Clearly, an at-
torney or other person also is precluded from telling present
and future witnesses what past witnesses have said when
they testified under a sequestration order. Communication
through the means of allowing witnesses to read the tran-
scripts of the testimony of previous witnesses generally is not
possible in short or moderate length proceedings; however,
it is not uncommon for recesses to occur between the presen-
tation of the General Counsel’s case and that of a respond-
ent. The same harm to the reliability of the record occurs re-
gardless of the method of communication and such a disclo-
sure of testimony must be considered to be equally violative
of a sequestration order.
Here, the evidence regarding witness Sostre clearly dem-
onstrates the corruption of the record that can occur through
the violation of the sequestration order. Sostre admitted his
version of how the hiring of Jusino occurred changed after
discussing that subject with Negron. Sostre testified on direct
examination during the morning of September 13 and
changed that afternoon. Sostre admitted changing his version
due to the fact that he had passed a note to Negron, which
evidently happened during the lunchbreak, a time when
Sostre was under constraint not to discuss his testimony with
anyone. It is evident that Negron must have answered
Sostre’s note and must have spoken with Sostre because that
incident was what prompted Sostre to change.
The testimony of the vast majority of the Respondent’s di-
rect witnesses is tainted by inherent untrustworthiness as a
result of the clear and repetitious violations of the sequestra-
tion order. This is born out by the brief analysis of testimony
set forth above which demonstrates equivocal and internally
contradictory testimony as well as apparent collusion, distor-
tion, and coloring or tailoring of testimony. Moreover, this
all occurred with the knowledge and assistance of Respond-
ent’s attorneys. The likelihood that such testimony is unreli-
able is so substantial that it equates to a showing that the
General Counsel and the Charging Party have been preju-
diced by the overriding effect that such testimony could have
on the development of a truthful and complete record.
Violation of a sequestration order on a minor scale often
can be disposed of by treating the matter solely as an unfa-
vorable reflection on credibility. Here, however, the record
presents innumerable factual issues that stand to be resolved
based substantially on the credibility of witnesses and, as
pointed out by the General Counsel and the Charging Party,
the violations of the sequestration order are not singular or
isolated but are substantial, pervasive, and prejudicial. In this
proceeding the Respondent and its attorneys have utilized the
extraordinary tactic of having future witnesses review tran-
scripts of past testimony, either unmindfully or in disregard
of a sequestration order. I conclude that such conduct goes
beyond the reasonable bounds of proper trail preparation and
supports an inference that testimony generated under these
circumstances has been so altered or tailored as to be ren-
dered inherently unreliable.
Although the usual remedy for violation of a sequestration
order is to not credit the challenged testimony, see Zartic,
Inc., 277 NLRB 1478 (1986), and the Unga case supra, it
is properly a matter within the discretion of the trial court
to allow or disallow such testimony, see United States v. Or-
tega-Chaves, 687 F.2d 1086 (1982). Here, the record dem-
onstrates repeated and pervasive violations made with the
concurrences and assistance of counsel and, under such cir-
cumstances, I find that proper cause has been shown to jus-
tify a grant of the relief requested in the General Counsel’s
motion. Accordingly, the motion is granted and I order that
except to the extent that admission against interest were
made, the testimony of all witnesses who violated the se-
questration order be, and it is stricken.
III. PRELIMINARY MATTERS
By an informative motion dated February 9, 1989, this ad-
ministrative court was informed of the decision of the United
States District Court in Mary Zelma Associate v. El Mundo
Corporation a/k/a Worldwide Management Corporation,
Civil No. 88–1338, dated February 3, 1989, wherein the
court granted an injunction pursuant to Section 10(j) of the
Act on matters substantially parallel to those pending final
decision in this administrative proceeding. In a telephone
conference call held on February 28, 1989, it was disclosed
that the Respondent was acting to comply with the District
Court’s Order and, among other things, had recognized the
Union. Accordingly, a time period was established to allow
the parties to explore the possibility of settlement, the partial
resolution of some outstanding issues, or identification of
possible differences with the court’s factual findings. By mo-
tion dated March 30, 1989, this court was informed that dis-
cussions occurred but that no agreements were reached. No
further representations were made by any party.
In accordance with the request of the General Counsel, ap-
propriate notice is taken of the District Court’s opinion. The
court’s opinion is based on 50 factual findings. Most of these
facts are substantially the same as the 49 stipulations entered
into by the parties and reflected in Joint Exhibit I. Otherwise,
the parties did not identify any specific differences with the
findings of the court and, on my review, I find them to be
consistent with the record in this proceeding and they are
adopted and, as pertinent, set forth or incorporated in the fol-
lowing description of facts.
359EL MUNDO CORP.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
This proceeding involves the labor-management relation-
ship at two separate business entities: El Mundo, Inc. and El
Mundo, Corp., each engaged in the publication of a daily
Spanish newspaper in Puerto Rico called ‘‘El Mundo.’’ The
first entity, El Mundo, Inc., was formed in 1919 and operated
until August 30, 1987, when it stopped its publishing oper-
ations, and terminated almost all of its employees. At that
time ownership and control of El Mundo, Inc., rested in the
hands of Fundacion Angel Ramos, Inc. The newspaper and
the Union were engaged in lengthy contract negotiations that
had cumulated on or about August 15, in a membership re-
jection of a proposed bargaining agreement. On August 19,
the directors of the Fundacion acknowledged that inquiries
regarding the purchase of the newspaper had been received
from Hector L. Gonzalez and they decided that if no sale
was consummated within a reasonable time the newspaper
would be closed. The record otherwise shows that Gonzalez
first expressed his interest in purchasing the newspaper in a
letter to El Mundo, Inc., dated November 26, 1986, in which
he stated his assurance that:
[M]y interest and purpose is to insure that El Mundo
continues, as it has in the past, to serve our island as
a totally independent and courageous newspaper.
Since its certification in 1962 the Union has been the ex-
clusive bargaining representative of employees in the admin-
istration, maintenance, editorial, production, and circulation
departments. Since 1964 several collective-bargaining agree-
ments were reached, the last one of which was executed on
September 6, 1985. That agreement expired September 30,
1986, but work continued thereafter under the existing con-
tract terms. Subsequently, numerous bargaining sessions were
held, with agreements being reached on at least 12 articles,
however, major issues remained, including the Employer’s
demand to subcontract unit work, essentially a proposed reor-
ganization of the circulation and transportation department
that would convert union employees to independent agents,
excluded from the unit, and the consolidation of certain job
classifications, proposals that each would involve the layoff
of some employees.
The Employer’s proposals anticipated savings of approxi-
mately $5 million. The Union’s counterproposals, provided
cost reduction of $3 million, but provided that the employees
of the circulation department were to remain as part of the
unit (with some necessary lose of jobs) in a reorganization
along the lines of a similar reorganization at the circulation
department at El Vocero, another newspaper in Puerto Rico,
whose employees are also represented by the Union. During
the latter negotiations the Employer’s spokesman was coun-
sel Miguel Palou, who subsequently represented the interest
of Gonzalez and El Mundo Corp. in regard to labor matters.
On August 21, a meeting of principals and the Common-
wealth’s Department of Labor planned to discuss the impact
of the threatened closing became a meeting with Gonzalez
who announced his interest in buying the newspaper. At that
time Gonzalez, was the 100-percent stockholder of World-
wide Management, Inc., an entity which subsequently be-
came El Mundo, Corp. Gonzalez was known to the Union
as a substantial stockholder of El Reportero de Puerto Rico,
Inc., an entity that previously had published a newspaper and
whose employees were represented by the Union.
Two days earlier, at a meeting of the Fundacion, the board
of directors were advised that the Union had rejected El
Mundo, Inc.’s proposed labor contract and that inquiries for
purchase of the newspaper had been received from Gonzalez
and another party. The Board concluded that if no sale was
consummated within a reasonable period of time, the news-
paper would be closed down.
On August 21, Gonzalez met with union representatives
and assured them of his interest in keeping the El Mundo
newspaper operating and his interest in reaching an agree-
ment with the Union prior to a purchase. He indicated that
he would assume a successor position and would voluntarily
assume the predecessor’s responsibilities toward the Union.
At a meeting on August 22, Gonzalez told the Union that
he had no problem with extending the expired collective-bar-
gaining agreement. However, Gonzalez requested that it be
extended for 18 months, rather than 12, and the Union
agreed.
On August 24, Gonzalez submitted a memorandum of un-
derstanding to the Union which stated the proposed terms
and conditions including those pertaining to subcontracting
and the Union’s commitment to withdraw its complaints. In
a letter dated August 25, Gonzalez advised the Union that he
had met with them to negotiate because he was interested in
buying the newspaper, was pleased with the negotiations
with the Union, and discussed the items agreed on which
were to be included in the collective-bargaining agreement.
On August 30, El Mundo, Inc. closed its publication oper-
ations and terminated almost all the employees included in
the unit. (Most of the employees subsequently received sev-
erance payments pursuant to the provisions of the collective-
bargaining agreement.) The next day Gonzalez held a press
conference and announced that in 2 or 3 weeks he was going
to open a new newspaper similar to U.S.A. Today. At the
same time he hired approximately 20 former El Mundo, Inc.
employees for the editorial department of the new venture.
The next day, however, Gonzalez arranged a meeting with
Baez and informed him that he was still interested in pur-
chasing El Mundo and wanted to know whether the Union
was willing to reach an agreement with him. Baez told Gon-
zalez that the Union was willing to help him. The next day
Gonzalez met with the Union’s bargaining committee and in-
formed them of his continued interest in purchasing El
Mundo but conditioned his action on the Union’s withdrawal
of pending unfair labor practice charges at the Board and
other pending court cases. By resolution dated September 3,
the Union agreed to withdraw all pending charges.
On September 4, Gonzalez made an offer to Fundacion for
the purchase of the El Mundo, Inc. stock for $3 million; $1.5
million payable at closing and the balance in six consecutive
annual installments.
On September 5, Gonzalez and the Union’s bargaining
committee met to discuss an agreement and Gonzalez ex-
plained his intention of continuing the paper, as restructured,
to make it a viable operation. This theme was repeated to an
assembly of the union membership held on September 10,
where Gonzalez spoke of his commitment to keep the news-
paper operating and stated that he had been engaged in pro-
ductive talks with the Union and that there were no obstacles
remaining for the purchase of the stock.
360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Former reporter Maritza Diaz-Alcaide testified that during
this period of time she was asked to work for a new news-
paper that was being organized and did so at a facility owned
by Gonzalez, along with approximately 12 other El Mundo
people. She also said that several days after she started Gon-
zalez spoke with the group and told them he was still inter-
ested in buying El Mundo and that the group would be part
of his new team. She also named four of this group that be-
came subsequent employees of the Respondent; however, she
took a position with a news agency operated by the govern-
ment of Spain. As otherwise discussed below, this paper with
a suggested title, ‘‘Hoy,’’ was a fledgling newspaper pub-
lishing venture developed by Gonzalez as an alternate course
of action should he fail in his efforts to negotiate a purchase
of the El Mundo newspaper.
Director of Photography Eduardo Figueroa also named
several specific other El Mundo, Inc. employees who worked
for ‘‘Hoy’’ (and were paid by one of Gonzalez’ companies),
during the interval between August 30 and November 9 and
were subsequently hired by the Respondent on or after No-
vember 9.
On September 11, Gonzalez made a payment of
$1,500,000 to the Fundacion and on September 14, he told
Baez that he had reached an agreement with Fundacion and
wanted to clarify certain matters with the Union.
The parties met on September 15, and discussed the call
back of employees. Gonzalez ended the meeting in order to
prepare a letter to the Union. That evening Respondent’s at-
torneys, Miguel Palou and Noel Gonzalez, delivered a letter
to the Union with a proposal for a new agreement to be ef-
fective once the sale of the newspaper stock took place, how-
ever, the proposal differed from positions previously assumed
which the Union felt had been already agreed to by the par-
ties, positions that had been ratified by the employees at their
September 10 assembly.
On September 17, the parties met again and discussed the
modifications to the agreements and the new matters raised
by the Employer but reached no agreement. That evening
Jose Ivan Aldea, an agent for Gonzalez, verbally notified the
Union of the names of the employees of El Mundo, Inc.,
who would be recalled to work on Respondent’s commence-
ment of publication and said that an additional 110 employ-
ees from the circulations department would be recalled. In
addition, he said 24 former employees from El Mundo, Inc.,
would be offered independent contractor positions at the cir-
culation department. The breakdown of employees that were
going to be recalled in each department was as follows:
Editorial 31
Maintenance 6
Advertisement/Sales 4
MIS 4
Production 28
Accounting 10
Circulation 110
Personnel and
Transportation 0
Administrative Services 4
The parties met and discussed their differences, however,
they were unable to reach an understanding and, on Sep-
tember 21, the Union issued a press release stating that the
reopening of the newspaper might not come through and that
Gonzalez was backing away from his original position.
On September 26, Gonzalez drafted a letter to Fundacion
stated the terms of the purchase of stock of El Mundo, Inc.,
however, the word ‘‘stock’’ is crossed out and replaced by
the word ‘‘assets.’’ This was followed with an offer for the
purchase of assets made by letter dated September 28. A
Fundacion board of directors meeting was held on October
7, 1987, and the sale of assets to Gonzalez was approved.
On November 8, 1987, El Mundo, Inc. and Worldwide
Management Corporation executed an Asset Purchase Agree-
ment whereby Respondent purchased the assets and business
of El Mundo, Inc., and executed a lease agreement whereby
Respondent leased the premises where the newspaper had
been operating.
Previously, on November 2, Jose Ivan Aldea had prepared
a memorandum for Gonzalez on employee staffing with the
planned salaries, fringe benefits, and organization of the
newspaper. Beginning on or about November 9, Respondent
began assembling a staff and preparing to publish a news-
paper. In the period between November 9 through December
16, 1987, Respondent employed 20 supervisors 8 of which
had previously been employed by El Mundo, Inc., it em-
ployed 36 employees 16 of which had previously been em-
ployees of El Mundo, Inc., and it employed 20 area super-
visors 11 of which had been previously employees of El
Mundo, Inc. As of December 21, 8 of 21 supervisors and 18
of Respondent’s 45 employees had been previously em-
ployed by El Mundo, Inc.
Additional details concerning various events surrounding
the assembly of the newspapers staff are set forth below. In
addition, it is noted that between November 9, 1987, and Au-
gust 5, 1988, Respondent hired 3 former El Reportero em-
ployees as area supervisors and 17 former El Reportero em-
ployees for other positions.
On December 4, Sergio Camero, Respondent’s president,
prepared a memorandum on employee recruitment by depart-
ment, position, and names (for those positions already filled),
and projections as to when certain positions had to be filled.
He noted that adjustments might have to be made since the
plan had been designed with the full production of the enter-
prise in mind.
On December 16, the Union requested a meeting with
Gonzalez to discuss the terms and conditions of employment
of the employees, according to the conversations and agree-
ments that had taken place prior to the purchase.
Gonzalez replied by letter dated December 21, and stated
that since he had unsuccessfully tried to purchase the shares
of the newspaper and that since probably less than 25 percent
of the new employees would involve former employees, it
was his understanding that the Union was not a majority, and
thus, it could not be imposed on the employees.
The Union filed its first unfair labor practice charge on
December 29. The Respondent published its first newspaper
on January 6 and 8, 1988, Respondent changed its name
from Worldwide Management Corporation to El Mundo Cor-
poration, the name by which it is presently known.
V. DISCUSSION
The alleged unfair labor practices are the outgrowth of the
closing of one business and the opening of another similar
enterprise. This was accompanied by irregular hiring prac-
361EL MUNDO CORP.
tices and a failure to recognize the Union that represented the
employees of the closed business. The several issues and ad-
ditional factual findings will be further discussed in the fol-
lowing subsections.
A. Successor Status
The traditional standard for the evaluation of successor sta-
tus and of the resulting, concomitant duty of a successor em-
ployer to bargain with a union that represents the prede-
cessor’s employees, derives from the decision of the Su-
preme Court in NLRB v. Burns Security Services, 406 U.S.
272 (1972).
In determining whether a purchaser is obligated to bargain
with the exclusive representative of its predecessor’s employ-
ees, the basic test is whether there is substantial continuity
in the employing enterprise. Where there is such a continuity,
the presumption of majority status by the Union under the
predecessor is not affected by a change in ownership. The
traditional criteria for this test includes whether there has
been substantial continuity in the following: (1) business op-
erations; (2) plant; (3) work force; (4) jobs and working con-
ditions’ (5) supervisors; (6) machinery, equipment, and meth-
ods of production; and (7) product or service. See Aircraft
Magnesium, 265 NLRB 1344 (1982). Applying these well-
settled criteria to the totality of the circumstances here, it is
concluded that Respondent is a successor.
Respondent’s argument to the contrary relies primarily on
an attempt to distinguish the decision in Fall River Dying
Corp. v. NLRB, 482 U.S. 27 (1987). In this case the Supreme
Court states that a purchaser succeeds to the predecessor em-
ployer’s existing obligation to recognize and bargain with an
incumbent union that represented a unit of the predecessor’s
employees if the purchaser acquires ‘‘substantial assets of its
predecessor and continue[s], without interruption or substan-
tial change, the predecessor’s business operations,’’ and if a
majority of the new employer’s unit employees were em-
ployed by the predecessor.
Specifically, Respondent points out that it made major
changes in the circulation department by utilizing inde-
pendent contractors rather than employees driving company
vehicles for the distribution of the paper, that it changed the
number and identity of substantial numbers of supervisors,
that there was a hiatus in operation for 4 months, and that
it has not hired a majority of its work force from former em-
ployees.
The record here shows that since Respondent first became
interested in purchasing the newspaper, it made repeated rep-
resentations that no matter how the purchase would take
place, its plan was to continue publication of the oldest
newspaper in Puerto Rico without any major interruption or
any substantial changes and that it realized that it was going
to become a successor Employer and would have to deal
with the Union. Although Respondent changed its plans from
a stock purchase to an asset purchase agreement, it purchased
substantially all the assets of El Mundo, Inc., including the
press, machinery, equipment, motor vehicles, furniture and
fixtures, inventory, office supplies and equipment, periodicals
and newspaper library, photo library, research data, computer
programs and software, accounts receivable, customer list,
agent lists, trademark, trade names, service marks, copy-
rights, and patents, including the name ‘‘El Mundo,’’ and its
rights, title and interests in leases, security deposits and con-
tracts. And, on the same date as the purchase, Respondent
also executed a lease agreement whereby it leased the same
building and real estate previously used by El Mundo, Inc.
to conduct its business operations.
Although the paper was not published for a 4-month pe-
riod, Respondent started hiring employees after 2 months and
when the newspaper resumed publication it had the same
name, format, and basically the same sections and organiza-
tion. During the first week of publication Respondent contin-
ued publishing the information that the newspaper had been
founded in 1919, the date when El Mundo, Inc. was founded,
and Respondent also used the motto used by El Mundo,
‘‘Truth and Justice.’’ Respondent also used the job applica-
tion forms, contract forms with carriers and other office pa-
pers used by El Mundo, Inc. together with its name, logo,
and address. Only subsequently did it make minor changes.
As pointed out by the Respondent, changes in the circula-
tion department were made, however, these changes were
matters that were proposed by Respondent in discussions
with the Union during August and September, when it was
pursuing a purchase of its predecessor’s stock and such
changes are not inconsistent with successorship status.
In a similar vein, the hiatus in production totaled only 4
months and, otherwise, at Respondent’s request some em-
ployees continued nonproduction task until at least Sep-
tember 18, in order to maintain presses and equipment and
it initially planned to resume publication sometime in the
third or fourth week of September. Meanwhile, Gonzalez
also hired a group of at least a dozen employees to prepare
for possible publication of another newspaper (‘‘Hoy’’).
After the asset purchase was agreed to, Respondent again
made plans to start publication in October, and at successive
intervals thereafter a number of employees were hired begin-
ning in early November, as soon as the purchase agreement
was executed and only 2 months after the last publication by
its predecessor.
The work force did change in some respects, both with re-
spect to supervisors and employees, however, as of Decem-
ber 16, when the Union requested a meeting with Respond-
ent, 27 of 56 nonsupervisory employees (including ‘‘area su-
pervisor’’ positions) were previous employees (48 percent),
and 8 of 20 supervisor positions were filled by persons who
had worked for the predecessor. As the staffing increased to
a total of approximately 147 nonsupervisory employees on
February 25, 1987, some 52 or approximately 35 percent
were exemployees. As otherwise discussed in section E
below, the record supports a finding that the Respondent en-
gaged in discriminatory hiring practices in an effort to avoid
the employment of a majority percentage of former employ-
ees and, therefore, it is appropriate to infer that, but for its
discrimination, Respondent would have hired or retained the
predecessor’s employees.
Here, it is clear that the former El Mundo Inc. facility is
being operated by Respondent for the same purpose, publica-
tion of a newspaper. This newspaper carries the same name
and is specifically presented to the public in a manner de-
signed to convey the impression that it is a continuation of
the paper first established in 1919 by its predecessor. This
impressing is consistent with the representations that were re-
peatedly made prior to Respondent’s letter of December 21,
when it first informed the Union that Respondent would not
recognize it as the representative of the majority of employ-
362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 And, despite the change to so called ‘‘independent agents’’ for the circula-
tion department these agents perform the same functions previously performed
and such agents status does not preclude union representation, inasmuch as
similar agents have been included in the bargaining unit as a matter of practice
in other area newspapers, including El Reportero.
3 As noted by the General Counsel, the record shows that Respondent began
hiring employees on November 9 and that, accordingly, its obligation to recog-
nize and bargain with the Union started on that day. See Love’s Barbecue Res-
taurant, 245 NLRB 78, 82 (1979).
ees. Although some minor changes in the paper’s masthead
were made several days after it first resumed publication, it
has the same format, syndicated features, advertisers, and
customer base. Despite the corporate change and the decision
that the purchase took place through a purchase of assets,
rather than stock, only minor changes in plant operations oc-
curred. Except for its change in the method of distribution,2
Respondent otherwise uses the same printing process with
many, although fewer, former employees performing the
same or similar functions. As noted, no significant hiatus oc-
curred before organizational operations and subsequent re-
publication began and, under the totality of circumstances, I
find that the General Counsel has shown both substantial
continuity and an inferred retention of a majority of
exemployees. Accordingly, I therefore conclude that El
Mundo Corp. (formerly known as Worldwide Management
Corporation), is a successor employer to El Mundo, Inc.,
and, as such it has an obligation, on demand to bargain in
good faith with the Union.
B. Refusal to Recognize and Bargain with the Union
As noted on December 16, the Union requested that Re-
spondent honor agreements previously reached on September
10, and requested that it recognize and bargain with the
Union. Respondent refused to do so and, accordingly, I find
that it violated Section 8(a)(1) and (5) of the Act, as al-
leged.3
C. Unilateral Changes
It is admitted by Respondent that it has instituted unilat-
eral changes in wages, benefits, and terms and conditions of
employment different from those previously established by
collective bargaining between the Union and its predecessor.
These changes include substantial reductions in the wages
and benefits of its employees and changes in their working
conditions. Another significant change is in the operation of
the circulation department where the distribution function
was subcontracted to so-called ‘‘independent contractors.’’
The record shows that during negotiation after El Mundo,
Inc. stopped publication the Respondent was willing to give
the employees the same wages, benefits, and terms and con-
ditions of employment established in the prior collective-bar-
gaining agreement. Although the Union and Respondent had
some dispute as to other matters (specifically severance pay
and consolidation of work), and the Respondent bargained
with the Union about subcontracting, the Union had no major
objection to an agreement regarding the subcontracting of the
unit work under the condition that the ‘‘independent contrac-
tors’’ would be included in the bargaining unit as they are
in other newspapers in Puerto Rico and Respondent then
agreed not to subcontract any unit work except in the circula-
tion department. When publication resumed, Respondent
went forward with the contracting of independent contractors
who otherwise were excluded from status as employees. This
action a mandatory subject of bargaining and a change in a
term and condition of employment.
Where, as here, the record demonstrates a discriminatory
hiring policy, there is a presumption that a successor em-
ployer would have retained ‘‘substantially all’’ of the prede-
cessor’s employees, had it not been for its discriminatory hir-
ing policy. Under these circumstances, the purchaser is le-
gally obligated not only to recognize and bargain with the
Union that represented the predecessor’s employees, but to
maintain the terms and conditions of employment which ex-
isted under the predecessor until it bargains with the Union
about any changes. See Kallman v. NLRB, 640 F.2d at 1102–
1103 (1981); and NLRB v. Amateyus, 817 F.2d 996 (1987).
Here, the Respondent was well aware of its predecessor’s
bargaining agreement, of its potential successorship obliga-
tions, and of its own bargaining with the Union and their
tentative agreements on substantial issues. The record, how-
ever, shows that despite a request for bargaining from the
Union, it resumed publication after making admitted unilat-
eral changes in terms and conditions of employment. As Re-
spondent is otherwise shown to be a Burns successor, I con-
clude that its changes in this respect must be found to be in
violation of Section 8(a)(1) and (5) of the Act, as alleged.
D. Supervisors
Section 2(11) of the Act defines a supervisor as:
. . . any individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such ac-
tion, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical na-
ture, but requires the use of independent judgment.
The existence of any one element can be sufficient to con-
vey supervisory status, however, sporadic or occasional exer-
cise of supervisory authority is insufficient to make an em-
ployee a supervisor. Also, investiture with a title and theo-
retical power which may imply supervisory authority like-
wise can be insufficient to transform a rank and file em-
ployee into a supervisor.
Here, the Respondent contends that the persons employed
under the title ‘‘Area Supervisor’’ are either statutory super-
visors or managerial employees. The circulation department
is headed by a circulation manager, three area managers (di-
rect sales manager, metropolitan area manager, and island
manager), and two regional managers. Under the regional
manager there are 22 ‘‘Area Supervisors’’ and two direct
sales supervisors. Under the area supervisors there are 117
so-called independent contractors.
All personnel matters regarding the independent agents are
handled personally by the circulation manager. Area Super-
visor Roberto Jusino testified that he was never given any
written job description, however, he understood that his du-
ties and responsibilities were to hire the carriers (who are not
employees), assist the independent contractors in the collec-
tion from the carriers, help carriers with the distribution of
the newspapers, look for new subscribers, organize groups of
carriers through different areas to increase sales, substitute
363EL MUNDO CORP.
for agents who were absent, distribute down routes, adjust
the invoices until certain limits, and to prepare a report if
any agent had an unusual decrease in sales. These were the
same duties and responsibilities he had when he worked as
a temporary employee at El Mundo, Inc., as a district man-
ager, an employee position that was part of the bargaining
unit (temporary employees, however, were not part of the
unit).
Although the area supervisor select the newspaper carriers,
these persons are not company employees and the area super-
visors do not set the compensation to be received by the
independent contractors or the carriers nor do they independ-
ently enter into contracts. They adjust invoices but do so ac-
cording to a mathematical formula established by the con-
tracts. They may make recommendations regarding possible
candidates for independent contractor positions, but otherwise
are not shown to make use of independent judgment or to
exercise their own discretion.
Here, the Respondent has raised the issue of the area su-
pervisors’ status and therefore has the burden of proof to es-
tablish that status, see Thayer Dairy Co., 233 NLRB 1383
(1977); however, it did not present testimony directed at this
issue. Here, I find that the use of the term ‘‘supervisor’’ or
‘‘manager’’ is irrelevant and that the significant criteria dis-
cussed above, as well as the past practices of Respondent’s
predecessor, all lead to the conclusion that the position of
area supervisor is not that of a ‘‘manager’’ or statutory su-
pervisor within the meaning of Section 2(11) of the Act, see
the Washington Post Co., 254 NLRB 168, 181–183 (1981).
Accordingly, I further find that for all purposes relevant here,
those positions now entitled as area supervisors (formerly
district managers) are employee positions encompassed with-
in the certified bargaining unit.
Paragraph 6(a) of the complaint was amended during the
hearing to allege supervisory status for Photography Director
Eduardo Figueroa. Figueroa had been in a bargaining unit
position as chief photographer when El Mundo, Inc. stopped
publication on August 30, however, he was one of the first
persons employed by Respondent on November 9. On Au-
gust 1, 1988, he was also given the title of assistant to the
president and it appears that he was understood by current
and former employees to hold such a position during the fall
of 1987. Figueroa testified that as photography director he
was in charge of interviewing and hiring personnel for the
photography division. Among the persons Figueroa hired
were Mauricio Pascual and Cesar Silva. He also testified that
between the time the newspaper closed and his employment
by Respondent on November 9, he also worked for Hector
Gonzalez on the formation of a newspaper to be called the
‘‘Hoy,’’ a venture that otherwise appears to have been an al-
ternative plan for Gonzalez to reenter the publication field if
he otherwise did not succeed in his negotiations to purchase
the El Mundo newspaper. Reporter Maritya Diaz-Alraide tes-
tified that Figueroa was represented to be and participated in
a managerial role during this period.
Under these circumstances, and, especially in view of
Figueroa admitted functions and the criteria discussed above,
I conclude that the General Counsel has persuasively shown
that since November 9 Figueroa has been a statutory super-
visor within the meaning of Section 2(11) of the Act, as al-
leged.
E. Alleged 8(a)(1) and (3) Violations
After El Mundo ceased publication on August 30, Hector
Gonzalez and companies under his control, including the Re-
spondent here, engaged in an ongoing procedure directed at
the goal of publishing a newspaper in place of or as a suc-
cessor to El Mundo. The Respondent ultimately purchased
substantially all the assets of El Mundo, Inc., and it acted to
preserve these assets as soon as El Mundo, Inc. ceased publi-
cation in order to be in a position to resume publication at
an early date. After August 30, Gonzalez immediately began
lining up the necessary editorial staff and the contingency de-
velopment of the ‘‘Hoy’’ newspaper venture. Some core
members of this group, both supervisors and employees, sub-
sequently were hired as managers and employees of the Re-
spondent, beginning November 9.
Full staffing of the various managerial and operational po-
sitions was an obvious prerequisite to republication and the
Respondent, under the direction and control of Hector Gon-
zalez, continued to develop a plan for efficient organization
and operation. It organized the necessary departments and es-
tablished minimal staffing requirement. This organization
closely paralleled that utilized by the predecessor’s company,
with the exception of changes in the means of distribution
of the newspaper through the use of independent contractors,
in lieu of employees, within the circulation department.
During the period leading up to a final purchase agree-
ment, Gonzalez repeatedly acknowledged the existence and
valued contributions of the newspaper’s employees, his ex-
pectations regarding their participation in continued publica-
tion under his control, and an understanding of the Union’s
position as the certified bargaining agent for the employees.
On September 17 the names of 87 employees in departments
other than circulation, and 110 employees from circulation
were identified as those that would be recalled upon the
reaching of an agreement. When no agreement was finalized,
Gonzalez changed his purchase proposal to one reflecting the
purchase of assets rather than stock and apparently estab-
lished a strategy whereby it would attempt to pursue its pub-
lication objective without continued recognition of the Union
and with a more reduced staffing level. A memo reflecting
the proposed staffing was prepared on November 2 and 1
week later hiring began.
The manner in which Respondent and its agents conducted
this hiring forms the basis for allegations that it engaged in
discriminatory hiring practices and interfered with employ-
ee’s Section 7 rights.
As noted above, Respondent sent a letter to the Union on
December 21 in which it specifically stated that it intended
to hire 175 employees (including supervisors) and that out of
those only 25 percent would be former El Mundo, Inc. em-
ployees. As of December 21, Respondent had hired 52 em-
ployees out of which 17 were former El Mundo, Inc. em-
ployees, plus 20 area supervisors of which 11 were former
El Mundo, Inc. employees (of a total of 72 unit positions,
28 former El Mundo, Inc. employees). Thus, on December
21, Respondent had filled approximately 40 percent of the
unit positions with former El Mundo, Inc. employees and
had approximately 96 unit positions vacant.
The Court in the related 10(j) proceeding found that Re-
spondent’s hiring practices regarding independent contractors
hired to perform the tasks of former employee positions in
the circulation department can be examined and taken into
364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
consideration by the Court as corroborative of the discrimi-
nating employment practices used by the Respondent to fill
the employee positions. As found by the Court, these prac-
tices illustrate the antiunion animus shown by supervisors
implementing the Company’s hiring practices and I find that
they support the finding otherwise reached here.
Moreover, the matter of the status of these independent
contractors is a subject of the remedy here inasmuch as the
subcontracting arrangement is a matter of future mandatory
bargaining and it may well be that these positions will be
considered to be bargaining unit positions as they are at an-
other newspaper in Puerto Rico.
The record further shows that out of the 85 employees
hired by Respondent between December 22 and February 25,
1988, at least 58 filed their employment applications after
December 21 (most of the employees hired during this period
filed their employment application the same day they were
hired). In addition, the record shows that as of February 25,
1988, there were 11 vacant positions and that they were un-
filled despite the fact that applications of qualified former
employees were on file. Accordingly, it is clear that at the
time it refused to deal with the Union the Respondent had
no legitimate bases for predicting or anticipating that it total
work force would be made up of only 25 percent former em-
ployees. The record shows that numerous former employees
had filed applications but were not hired and often not even
interviewed. Otherwise, Respondent made no effort to openly
seek employees through any public process but instead ap-
pears to have relied on word of mouth and personal knowl-
edge by supervisors, a method shown to be tainted by prac-
tices designed to restrict the hiring of former employees.
Only 23 out of 85 persons hired in the 2 months after De-
cember 21 were former employees and, accordingly, I con-
clude that the record clearly supports the inference that Re-
spondent established a predetermined quota to limit its hiring
of former El Mundo, Inc. employees to a nonmajority level
and thereby make it appear that it was not a successor em-
ployer.
This inference is fully supported by the separate and cu-
mulative testimony of numerous credible witnesses called by
the General Counsel. As a result of my conclusion in section
11 of this decision, striking the testimony (except admissions
against interest), of witnesses who violated the sequestration
order, this testimony stand essentially unrebutted. Otherwise,
however, I also find the testimony of the General Counsel
witnesses is independently persuasive and corroborative and
inherently more credible than the contradictory denials and
explanation offered in the stricken testimony of the Respond-
ent’s witnesses.
As pointed out by the Charging Party, the Respondent’s
supervisors did not follow a pattern of employment norms
and each manager testified to a different procedure assertedly
following their own peculiar hiring criteria. The one common
aspect within the broad guidelines said to be established (i.e.,
hire the best people available) was the nonhiring and often
the noninterviewing of former El Mundo, Inc. employees, es-
pecially those known to have been union advocates. Other
employee-applicant’s who otherwise had worked successfully
for many years were not hired, allegedly because they were
not qualified. The reasons given for disqualification appear
to be strained, at best, especially where it is shown that nu-
merous inexperience vocational school students were hired in
preference to experienced former employees. It appears that
applications were lost or misplaced and second applications
or resumes had to be filed, if the loss was discovered by the
applicant. It also is shown that some applicants were incor-
rectly told there were no vacancies for particular positions,
and applications were sometimes not forwarded to an appro-
priate department. Some specific examples of what occurred
are set forth below.
Juan Colon Ortiz was manager for transportation and di-
rect sales of El Mundo, Inc. on August 30, a supervisory po-
sition. In mid-November he was hired for the Respondent to
be manager of direct sales by Graciliano Sostre, director of
the circulation department. Colon’s duties were to reorganize
the circulation department and to hire independent contrac-
tors. He also supervised several others in the department and
was a statutory supervisor. Colon attended various organiza-
tional meetings and on one occasion Director Sostre told him
that they (the circulation department) could not go over the
35-percent quota of former El Mundo, Inc. unit employees
because other departments had already exceeded that limit.
Sostre also instructed Colon that he could interview and hire
qualified persons to work under them or fill independent con-
tractor positions, however, if the applicant was a former El
Mundo, Inc. unit employee Colon was not authorized to for-
mally hire him as an employee or assign him to a specific
area as an independent contractor even if the applicant was
qualified unless it was submitted to the security office and
cleared by them. Sostre told Colon that those instructions
were not his but rather ‘‘came from above.’’
Out of approximately 90 applicants interviewed by Colon,
around 30 were former El Mundo, Inc. employees. Colon
considered almost all of them qualified for positions at the
newspaper either as clerks or in area supervisor type em-
ployee positions or as independent contractors, however, only
three or four were actually hired or assigned independent
contractor’s positions and Colon sometimes filed positions
with persons he considered less qualified after the applica-
tions of former employees were not cleared. Otherwise, Re-
spondent did not use this clearance procedure for candidates
that had not worked at El Mundo, Inc.
Here, I fully credit Colon’s testimony, Colon was a former
supervisor with Respondent, who voluntarily left on January
30, 1988, to go to work with the newspaper El Vocero, at
a managerial position. Respondent’s supervisors, Sostre and
Negron, considered him to be a good supervisor, his de-
meanor was candid and direct, and I find that his testimony
is not refuted by any other credible evidence.
Jose Ivan Aldea was Respondent’s vice president and gen-
eral manager at the start of operations. He was hired by Re-
spondent on September 7, and prepared the September 17 list
of all the employees that Respondent was going to initially
hire pursuant to the agreements reached with the Union on
September 10. This list was based on recommendations given
to him by former El Mundo, Inc. supervisors and managerial
staff. Aldea admitted that when Respondent started to hire
personnel on November 9 it could have used the September
17 list but did not. His explanation as to why the list was
not used was that it was ‘‘because Respondent’s method of
purchase of the newspaper changed from a stock purchase to
asset purchase.’’
Aldea also prepared a memorandum on November 2 with
the names of former El Mundo, Inc. employees that Re-
365EL MUNDO CORP.
spondent should have employed upon commencement of op-
erations. Most of the former El Mundo, Inc. employees
named in that memorandum were not hired, even though
these same employees were said to be the best in the indus-
try by Gonzalez when he addressed the employees at the rati-
fication assembly on September 10.
Orlando Santos, assistant production manager, testified that
he recruited 12 students from the vocational school to work
in paste-up, photoengraving, and press. These individuals had
no experience whatsoever in the newspaper industry, but
were hired over former El Mundo, Inc. employees who were
qualified for the positions (in fact, Santos had recommended
them for recall in the listing on September 17), but who were
not even called to be interviewed after filing applications.
Sales Director Patricia Eaves testified that she did not
know the qualifications of the ex-Mundo employees who ap-
plied for jobs. She testified that she was able to know what
the applicant’s qualification were just by looking at the ap-
plications. She admitted that she received 30 to 50 applica-
tions of ex-Mundo employees from the personnel office.
After reviewing the applications, specifically where the appli-
cant had worked previously, she made a preliminary deter-
mination and only called for interview, those she found
‘‘qualified.’’ Six specific former employees were not inter-
viewed. Jose Cao Pampin was interviewed but did not hire
Cao because he was related to someone who worked at her
department. She then admitted that she knew Cao was only
living with someone who worked at her department and that
they were not married. Other evidence reflects that the Em-
ployer has no rule against relatives working together and
that, for example, Sostre’s and Noriega’s sons both worked
at the newspaper.
Luis Villares, Respondent’s editor, said he made an initial
determination as to whom to hire by looking at the names
and reluctantly admitted that by looking at the names he
might have been able to determine if some of the applicants
were former El Mundo, Inc. employees (Villares previously
had worked at El Mundo, Inc. for 13 years, finally as man-
aging editor, however, he was at another paper at the time
El Mundo stopped publishing). Villares also said that he dis-
cussed the hiring of El Mundo, Inc. employees with Re-
spondent’s president, Hector Gonzalez, because he was con-
cerned about hiring former employees, but was told that he
had a free hand. It also appears that Villares discussed hiring
with Figueroa, who is a supervisor in his department. There-
after, of the 20 persons Gonzalez previously had selected for
the editorial department of the ‘‘Hoy’’ venture, most were
not hired by Villares, nor were most of the ex-Mundo em-
ployees in Aldea’s list of November 2.
Jose A. Avila, Respondents MIS manager, testified that he
interviewed Annie Saldana and although he found her quali-
fied he did not hire her because there was no position avail-
able for her. The record otherwise shows that Saldana filed
her employment application on November 20, and that the
person hired to occupy the position Saldana had occupied
was not hired until January 4, 1988, the same day she filed
her employment application. Two other specific ex-Mundo
employees who had filed applications and were familiar with
the computer operations within Avila’s section but also were
not hired.
Rafael Garcia is one of seven specific former El Mundo,
Inc. employees who applied for or inquired about positions
with Respondent but were met with responses that both ex-
plicitly or implicitly reveal they would not hire them because
of their past employment and union membership, and they
were never offered jobs.
Garcia knew Circulation Director Sostre for many years
and his son was baptized by Sostre. Garcia was a delegate
at the circulation department and belonged to the Union’s
bargaining committee. In November, Garcia visited Sostre at
his home and asked him for a job. Sostre asked Garcia what
position Garcia would assume when the Union started col-
lecting authorization cards. When Garcia said he would stay
on the side lines, Sostre told him to fill out an application.
Garcia did so and when he received no reply, he visited
Sostre again in December. Sostre told him that he was in a
difficult list because at the newspaper anything related to the
Union ‘‘smells,’’ but that Sostre was still trying to hire him.
Luis Rivera, a former general delegate for the Union,
called Sostre in December and asked to be hired. Sostre re-
plied that he could not hire him because of Rivera’s partici-
pation in the Union. Sostre told Rivera that he had instruc-
tions from further up about not hiring anyone involved in the
Union.
Juan Rivas Santos was a former union delegate for the
photography department and an alternate delegate for the edi-
torial department. Rivas spoke with Photography Director
Eduardo Figueroa about the possibility of Respondent calling
him back to work. Figueroa told Rivas that he had requested
a resume from Mauricio Pascual and Alina Luciano but that
in his case it was going to be uphill because up to then, Re-
spondent had not asked for resumes from persons that had
to do with the Union. Rivas conclude that it would be futile
to file a resume, and did not do so.
Fernanado Maldonado had a conversation with MIS Oper-
ations Supervisor Cesar Rodriguez in December, shortly after
he had filed a second application (he had been told by Super-
visor Jose Avila that his November application could not be
found; however, it was among those produced in response to
the General Counsel’s subpoena). He told Rodriguez that he
was the person who could help former employees like him-
self obtain employment with Respondent, because he was
aware of their qualifications. Rodriguez replied that it was
out of his hands and that since Maldonado belonged to the
Union he could forget it.
Carlos Moreno Arroyo was a former general delegate for
the Union. He had a telephone conversation with Supervisor
Negron during the last week of December, and inquired
about the status of his application. Negron said that he was
trying to help him but that it was going to be difficult, ex-
plaining that Moreno was on a ‘‘blacklist’’ because he had
been a general delegate of the Union, and Respondent’s pol-
icy was not to hire union members. Moreno had held many
positions at El Mundo, Inc., including those of district man-
ager, manager driver, sports reporter, assistant street sales
manager, office clerk, office supervisor, and cashier. The po-
sition he last occupied was vacant and controller Luis Canals
told Moreno he was the person who should occupy that posi-
tion, however, no job was offered.
After the paper reopened in January, Juan B. Jimenez Rios
visited Sostre at his home and inquired about an application
he had previously given Sostre. Sostre said that Jimenez had
problems since he was very well identified with the Union.
The record otherwise shows that Jimenez actively partici-
366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pated in the picketing activities held by the Union on January
5, 1988, and that Respondent took photographs of that picket
line and had supervisors observe the participants.
Ramon Cantrev Valle, a former pressman, testified that a
month after he had filed an employment application in mid-
December he went to see Personnel Director Carlos Velez
and was referred to Assistant to Production Manager Orlando
Santos. When Cantre told Santos that Velez had sent him,
Santos replied that ‘‘they themselves have told us not to hire
. . . not to take in anybody from the Union, they are . . .
they themselves are bringing them from the vocational
school.’’ Although some former pressmen had been hired by
this time, remaining open positions were filled by inexperi-
enced persons from the school. Cantre was not hired by Re-
spondent but was sufficiently qualified to obtain a part-time
pressman position at the San Juan Star newspaper.
Roberto Jusino testified that on December 11 he was hired
as an area supervisor. That day, Metropolitan Area Subscrip-
tion Manager Rafael Negron told Jusino that he had called
Jusino to offer him a job since Angel Noriega had rec-
ommended Jusino because he had been only a temporary em-
ployee at El Mundo, Inc., had never been involved in union
activities, and was not pro-UPAGRA (Union). Negron fur-
ther stated that he had called Jusino and Pedro Acevedo be-
cause they were temporary employees at El Mundo, Inc., and
Respondent was not hiring ex-Mundo employees nor
prounion persons. Later that same day Negron told Jusino he
should recommend agents with experience but that they
should not be former El Mundo, Inc. employees, nor mem-
bers of the Union.
After Jusino was interviewed and hired, Negron took him
to see Circulation Manager Sostre. Sostre congratulated
Jusino and told Jusino that from that moment the words
union and strike were prohibited and to stay away from the
ex-Mundo employees or else he would be adversely affected.
On several occasions during the next month, he was again
reminded by both Sostre and Noriega that area supervisors
should not recommend ex-Mundo employees nor members of
the Union for employment.
Jusino also testified that he overheard a conversation be-
tween Supervisors Sostre and Noriega the first week he was
employed in which Noriega told Sostre that he had called
Freddie Colon for a vacant position. Sostre told Noriega not
to call Colon because he was a ‘‘bad’’ union member and
he had been blackballed. That same week Jusino heard
Noriega and Negron speak about some districts where they
had no agents and Jusino suggested Respondent call
Edelmiro Ramos and Damaso Gonzalez, two former El
Mundo, Inc. employees. Noriega said that Damaso was an
active union member who had always been very prounion
but said that Edelmiro was a good employee, Negron inter-
rupted and said that Edelmiro was very impulsive and had
been a member of the Union and that they would blackball
the two of them.
Near the end of December, Justino heard a conversation
in which Noriega recommended that Respondent hire Miguel
Martinez, known as La Mona. As soon as Negron mentioned
La Mona’s name Sostre became very annoyed and told
Negron ‘‘Damn it, Rafa, what are you thinking? You just
have appointed this short guy who was an UPAGRA member
and now you are going to call Martinez, who is an employee
. . . ex-employee and also an UPAGRA member? Don’t call
him to come over here because you are going to raise my
percentage of Union personnel and I have to deal with that.’’
At the beginning of January, Jusino suggested that Negron
hire Agustin Garcia for a vacant route. Noriega interrupted
and said that Agustin was a subversive, and an activist and
should not be called because he was very prounion and
Negron told Jusino not to call Agustin because he would be
an informer for the Union.
Shortly before the paper began publication, Personnel
Manager Carlos Velez addressed a meeting of area super-
visors, circulation managers, and the heads of each depart-
ment and, among other things, told them that the words
strike and union were prohibited and said that the persons
there present had to be very careful recommending personnel
to work in the newspaper and not to recommend any ex-
Mundo employees or members of the Union.
After the paper resumed publication Jusino became dis-
turbed by the conditions and on January 11, 1988, he con-
tacted Francisco-Paco Rivera, a general delegate for the
Union at the Reportero newspaper. After several meetings
with Rivera, who served as middleman between Jusino and
Angel Baez, executive secretary for the Union, Jusino started
to distribute leaflets and bulletins among the Respondent’s
employees. He distributed union cards and met with the em-
ployees to discuss working conditions and the necessity of
bringing the Union back. In a meeting on February 14, 1988,
one of the employees to whom Jusino offered a card, refused
to sign and asked Jusino to give Respondent a ‘‘break.’’ The
next day, February 15, 1988, Negron told Jusino that ‘‘there
were a few things about [him]’’ that he was not liking, and
that he was being discharged. When Jusino inquired what the
‘‘things’’ were, Negron did not reply and just said that he
was discharged. Jusino then asked why Negron was dis-
charging him since 2 days earlier Negron had congratulated
him for his work because he was the only area supervisor
that had his marketing research cards up to date and he had
just brought in 123 new subscriptions. Negron lowered his
head and told Jusino that he had to get rid of him imme-
diately.
The next day Jusino went to the personnel office to look
for a termination letter. When he inquired about the letter,
the secretary at the personnel office told him that she could
not give him such a letter because he was a probationary em-
ployee. Although Respondent apparently prepared a proba-
tionary contract for Jusino, it was never signed by anyone.
(The evidence otherwise shows that the Respondent began a
practice of filling out probationary contracts only after Jusino
was discharged.) Jusino then went to speak with Sostre and
asked the reason for the termination. Sostre replied that he
did not have anything to do with the decision and that it was
Negron, then added that Negron based his decision on the
performance of Jusino at his district. Jusino told Sostre that
it could not be so because there were other area supervisors
with poorer performance in their districts.
Jusino never received a discharge letter, however, on
March 15 Jusino saw Negron and Noriega at a restaurant.
Noriega, who at the time had been promoted to city manager,
greeted Jusino by saying: ‘‘My goodness, the prodigal son is
here. After I find . . . get you a job, you sold yourself to
UPAGRA, eh?’’ When Jusino answered that he was going
to return to the newspaper, Negron interrupted and told
Jusino that he was not going to return because Negron had
every arbitrator on his side.
367EL MUNDO CORP.
4 Respondent failed to call Noriega and Velez as its witnesses to deny or
explain the statements which were attributed to them.
Negron testified that he recommended that Sostre termi-
nate Jusino because he was disorganized and had commu-
nication problems, he lacked punctuality, the agents in his
district complained about him, and his agents were not up to
the level of others. On cross-examination by the General
Counsel, however, the accuracy or factual basis for Negron’s
asserted rationale was substantially discredited. Jusino’s cred-
ible testimony also disputed Negron’s justification and it oth-
erwise appears that Circulation Director Sostre admitted that
the department had organizational problems for several
months, with no accurate record keeping until the end of
February, and that no other areas supervisors were dis-
charged for similar problems.
As noted above, the testimony of supervisors who testified
on behalf of the Respondent which denies or fails to ac-
knowledge the described statements attributed to them by the
General Counsel’s witnesses has been stricken from the
record in accordance with the findings in section II above be-
cause of the pervasive violation of the sequestration order.
Otherwise, I find that the General Counsel’s nonhostile wit-
nesses testified in a forthright and credible manner, whereas
the testimony of the Respondent’s several witnesses dis-
played evasiveness, contradictions, evidence of unreliability,
and, especially in the testimony by Sostre and Negron, the
probability of collusion between them. Accordingly, I credit
as truthful the testimony discussed above which shows that
Supervisors Sostre, Negron, Figueroa, Santos, Rodrizuez,
Velez, and Noriega made statements that clearly stated or
implied that Respondent would not hire former El Mundo,
Inc., employees and/or union members or officials.4
Turning to the specific allegations of Respondent’s viola-
tion of the Act, I find that Supervisor Sostos’ questions to
Garcia regarding his union preferences are inherently coer-
cive in the context in which they were made and I find that
the Respondent thereby is shown to have interrogated Garcia
and interfered with, restrained, and coerced its employees
and job applicants in the exercise of their rights guaranteed
in Section 7 of the Act and thereby has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act, as
alleged. The numerous statements regarding the hiring of
former employees or union members made by Respondent’s
supervisors to its predecessor’s employees who were seeking
reemployment also demonstrate that Respondent interfered
with, restrained, and coerced its employees in the exercise of
their Section 7 rights, and I therefore find that Respondent
is shown to have violated Section 8(a)(1) of the Act, in this
respect, as alleged.
I further find that this conclusion is entirely consistent
with the showing that Respondent’s managers made a con-
scious decision to attempt to avoid successorship status and
thereafter established a quota for the hiring of former El
Mundo, Inc. employees. After its plans changed from a stock
purchase to an asset purchase, it specifically avoided the use
of previously prepared hiring list of the apparently most
qualified former employees and it specifically avoided the
open, public recruitment of employees. It established internal
provisions that resulted in the disparate treatment of applica-
tions by former employees, requiring such applications to be
screened by the security office or personnel department and
hired inexperienced persons just out of school over experi-
enced, qualified former workers. Applicants were told the
Respondent would operate without a union and they were
questioned about their continued union sympathies. And, as
discussed above, a number of applicants were candidly told
that their chances of being hired were effected by their status
as former employees and by their former union activities.
Other witnesses, especially Colon and Jusino, credibly testi-
fied regarding the existences of a quota system and plans and
procedures to avoid the hiring of former employees. Re-
spondent’s conduct in this regard is shown to discriminate
against all former employees and union members of its pred-
ecessor in regard to their hire and tenure of employment and
it otherwise created a climate of futility regarding the possi-
bility of employment for former bargaining unit members,
and it thereby discouraged membership in a labor organiza-
tion. See State Distributing Co., 282 NLRB 1048 (1987).
Accordingly, I find that Respondent is shown to have vio-
lated Section 8(a)(1) and (3) of the Act in this respect, as
alleged.
As described above, Jusino was subjected to conduct at-
tributable to the Respondent which included numerous spe-
cific examples of statements to the effect that the Respondent
considered former employee and/or union member to be po-
tential problems and that it wanted to avoid hiring them.
When hired, he was told it was only because he had been
a temporary employee at the predecessor company (and
therefore not a unit number), had not been involved with and
was not prounion. Shortly after the newspaper resumed pub-
lishing Jusino began participating in union activities which
included distributing leaflets and union authorization cards to
employees and meeting with employees to discuss the need
for a union. One day after Jusino experienced a hostile re-
fusal and argument at one such meeting, he was summarily
fired, despite the fact that his work had been praised only
a few days earlier.
In a discharge case of this nature, applicable law requires
that the General Counsel meet an initial burden of presenting
sufficient evidence to support an inference that the employ-
ee’s union or other protected concerted activities were the
motivating factor in the employer’s decision to terminate the
employee. Here, the record shows that Jusino engaged in
open union activity. Moreover, the timing of his discharge,
one day after another employee reacted in a hostile manner
to a union card solicitation, supports an inference that the
Respondent had become aware of his union activity. Other-
wise, it is shown that Respondent sought to limit the hiring
of prounion employees and I find that antiunion animus has
been established.
Under these circumstances, I find that the General Counsel
has met his initial burden by presenting a prima facie show-
ing sufficient to support an inference that Jusino’s union ac-
tivities were the motivating factor in Respondent’s decision
to terminate him. Accordingly, the testimony will be dis-
cussed and the record evaluated in keeping with the criteria
set forth in Wright Line, 251 NLRB 1083 (1980), see NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983),
to consider Respondent’s defense and, in the light thereof,
whether the General Counsel has carried his overall burden.
Respondent’s defense is based on its contention that Jusino
was discharged because he was disorganized, was late for
meetings, was the subject of complaints by agents, and had
368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Under New Horizons, interest is computed at the ‘‘short-term Federal rate’’
for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C.
§ 6621.
low productivity. As noted above, the General Counsel elic-
ited testimony discrediting these justifications and it appears
that no other employee was subjected to discipline, let alone
discharge, for possible similar conduct. In fact, Jusino had
been praised for his work a day prior to the incident with
the authorization cards. I find that the pretextual nature of
Respondent’s rationale is made apparent by Respondent’s
failure and refusal to give Jusino written or verbal reasons
at the time of his discharge and its subsequent attempt to as-
sert that he was a probationary employee when he had not
signed a probationary agreement (as required by Puerto Rico
law), or been advised to this effect and where it otherwise
is shown that it began the practice of filling out probationary
hiring agreement only after Jusino’s termination.
Under all these circumstances, I conclude that Respondent
has not met its burden of showing that Jusino would have
been discharged absent his union and protected concerted ac-
tivity. The General Counsel otherwise has met its overall
burden of proof, and I further conclude that Respondent is
shown to have violated Section 8(a)(1) and (3) of the Act in
this regard, as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act and at all times material the Union
has been the exclusive representative of all the employees in
the unit described in the Order for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
3. Respondent El Mundo, Corp. is a successor employer
to El Mundo, Inc., and by disavowing its bargaining obliga-
tion and refusing to recognize and bargain with the Union in
good faith and by unilaterally modifying preexisting wages,
benefits, and terms and conditions of employment without
prior notification to and bargaining with the Union, the Re-
spondent violated Section 8(a)(5) and (1) of the Act.
4. By interrogating job applicants about union sympathies
and telling employees/applicants that they would not be hired
because of their union affiliation or because they were em-
ployees of its predecessor, the Respondent has violated Sec-
tion 8(a)(1) of the Act.
5. By failing to hire employees named in the appendix of
this Order because of their union affiliation or previous em-
ployment, the Respondent in each instance engaged in unfair
labor practices in violation of Section 8(a)(3) and (1) of the
Act by interfering with the exercise of their rights guaranteed
in Section 7 of the Act and by discriminating in regard to
their hire or tenure of employment, thereby discouraging
membership in a labor organization.
6. By discharging employee Roberto Jusino on February
15, 1988, the Respondent engaged in unfair labor practices
in violation of Section 8(a)(1) and (3) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1), (3), and (5) of the
Act, I recommend that the Respondent be ordered to cease
and desist therefrom and to take certain affirmative action
described below which is designed to effectuate the policies
of the Act.
With respect to the necessary affirmative action, I rec-
ommend that Respondent be ordered to reinstate Roberto
Jusino to his former job or a substantially equivalent posi-
tion, without prejudice to his seniority or other rights and
privileges previously enjoyed, and make him whole for any
loss of earnings he may have suffered because of the dis-
crimination practiced against him by payment to him a sum
of money equal to that which he normally would have earned
from the date of the discrimination to the date of reinstate-
ment, in accordance with the method set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987),5 and that Respondent remove from its files any ref-
erence to Jusino’s discharge and notify him in writing that
this has been done and that evidence of the unlawful dis-
charge or reprimands will not be used as a basis for future
personnel action against them.
Having found that Respondent has refused to recognize
and bargain with the Union as the exclusive representative of
the employees in the appropriate unit as described, I shall
recommend that Respondent be ordered to recognize and, on
request, bargain in good faith with the Union as the exclu-
sive representative of the employees in the appropriate unit
with respect to wages, hours, benefits, and all other terms
and conditions of employment, and reinstate all wages, bene-
fits, and other conditions of employment which existed prior
to the unilateral action. Having found that Respondent re-
fused to hire most of its predecessor’s employees pursuant to
unilaterally established and discriminatorily effectuated con-
ditions and criteria, I find it necessary that Respondent be or-
dered to offer jobs to those employees otherwise listed in the
attachment to the appendix, who would otherwise have been
offered jobs but for Respondent’s failure to consider for em-
ployment these former El Mundo, Inc. employees on a non-
discriminatory basis with the seniority and any other rights
and privileges they would have enjoyed if they had been
hired for such positions, or, if those positions no longer exist,
to substantially equivalent positions and, because its actions
were unlawfully motivated, dismissing, if necessary, any per-
sons hired who were not former El Mundo, Inc. employees;
and to make whole such listed employees for any loss they
may have suffered by reason of the failure to hire; and to
make whole all employees, past and present, for any loss
they may have suffered by reason of the unilateral changes
in their wages, benefits, and other terms and conditions of
employment. Reinstatement shall be made on the basis of se-
niority in a manner consistent with the remedies provided in
State Distributing Co., 282 NLRB 1048 (1987), and Service
Operations Systems, 272 NLRB 1033 (1984), and with the
callback list prepared by Respondent on September 17, 1987.
Backpay shall be computed in accordance with the formula
set forth above and shall be effective from the time they
would have been hired on and after December 22, 1987, and
Respondent shall remit to the Union or any appropriate ben-
efit fund, all payments owed and deductions due under the
terms of its predecessor’s last bargaining agreement.
Also recommend that the Respondent be required to recog-
nize and bargain with the Union and, if agreement is
reached, to reduce the agreement to a written contract. In ad-
369EL MUNDO CORP.
6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
dition, Respondent shall be ordered to cancel, on request by
the Union, changes in rates of pay and benefits unilaterally
effectuated and to make the employees whole by remitting
all wages and benefits that would have been paid absent such
changes until the Respondent negotiates in good faith with
the Union to agreement or to impasse. The Order contains
a broad cease-and-desist provision because the Respondent’s
conduct demonstrates a general disregard for the employees’
fundamental statutory rights, however, in view of the Re-
spondent’s posthearing conduct and the representation that
Respondent has recognized and participated in collective bar-
gaining with the Union subsequent to the noted Order of a
district court, I am not persuaded that it is shown that the
likelihood of difficulty in achieving compliance would justify
inclusion of a visitatorial clause as requested by the General
Counsel.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, El Mundo Corporation, Hato Rey, Puerto
Rico, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating job applicants about union sympathies.
(b) Discharging any employee for activity protected by
Section 7 of the Act.
(c) Refusing to recognize and bargain collectively with
Union de Periodistas y Artes Graficas y Ramas Anexas de
Puerto Rico, Local 225, a/w The Newspaper Guild, AFL–
CIO, CLC, as the exclusive collective-bargaining representa-
tive of it employees, with respect to rates of pay, wages,
hours of employment, and other terms and conditions of em-
ployment in the following appropriate unit:
All employees employed in the Administration, Mainte-
nance, Editorial, Production and Circulation Depart-
ments.
Excluded: Publisher and Secretary, Executive Vice-
president and General Manager and Secretary, Adminis-
trative Assistants to the Executive Vice President and
General Manager, Director of Management and Infor-
mation Center, Assistant General Manager, Industrial
Relations and Personnel Director and Secretary, Assist-
ant to the Industrial Relations and Personnel Director,
Recruiting Officer, Treasurer and Comptroller and Sec-
retary, Assistant Comptroller, Internal Auditor’s Super-
visor, Credit Manager, Accounting Supervisor, Ac-
counting Office Manager, EDP Manager, Assistant EDP
Manager, Promotion Department Manager, Advertising
Director, Advertising Manager-Sales, Advertising Man-
ager-Operations, Advertising Office Manager, Adver-
tising Agency Coordinators, Special Commercial Sup-
plements Manager, Public Relations Director, Art Di-
rector, Security Officer, Security Supervisors, Mainte-
nance Director, Assistant Maintenance Director, Con-
servation Supervisor, Janitor Supervisor, Electric Engi-
neer Supervisor, Mechanical Engineer Supervisor, Ex-
ecutive Editor and Secretary, Managing Editors, Assist-
ant Managing Editors, City Editor, News Editor, Edi-
torial Page Editor, Associate Editor, Production Man-
agers, Assistant Production Manager, Press Foreman,
Mailroom Foreman, Production Supervisors, Photoen-
graving Supervisor, Circulation Director and Secretary,
Metropolitan Circulation Manager, Newspaper-in-the-
School Manager, Circulation Office Manager, Transpor-
tation and Street Sales Manager, Assistant Transpor-
tation and Street Sales Manager, Home Delivery Man-
ager, Assistant Home Delivery Manager, Metro Re-
gional Manager, Island Circulation Manager, Island
Manager, Island Regional Managers, Mechanics Super-
visor, guards and supervisors as defined in the Act.
(d) Refusing to honor the terms of its predecessor’s agree-
ment between the Union and changing any term or condition
of employment of its employees in the above unit, including
wages and benefits, without first giving the Union a chance
to bargain over such change.
(e) Withholding offers from, failing to hire, or otherwise
discriminating against employees because they were employ-
ees of its predecessor or were members or supporters of the
Union to avoid having to recognize and bargain with the
Union or any other labor organization.
(f) Telling union-represented employees of a predecessor
employer that its practice was not to hire or to restrict its hir-
ing of them.
(g) In any other manner interfering with, restraining, or co-
ercing its employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Roberto Jusino immediate and full reinstatement
and make him whole for the losses he incurred as a result
of the discrimination against him in the manner specified in
the section above entitled ‘‘The Remedy’’ and remove from
its files any reference to his discharge, and notify him in
writing that this has been done and that evidence of the un-
lawful discharge will not be used as a basis for future per-
sonnel actions against him.
(b) Recognize and, on request, bargain collectively with
the Union as the exclusive collective-bargaining representa-
tive of the employees described in paragraph 1(c) above, and,
if an agreement is reached, embody that agreement in an ex-
ecuted written contract.
(c) On request of the Union, cancel any departures from
terms and conditions of employment that existed immediately
before its purchase of El Mundo, Inc., retroactively restoring
preexisting terms and conditions of employment, including
wages and benefits that would have been paid absent such
departures until it negotiates in good faith with the Union to
agreement or to impasse as specified in the section above en-
titled ‘‘the Remedy’’ and rescind its unilateral subcontracting
of unit work in the circulation department including rein-
statement of the work previously performed at El Mundo,
Inc. by the district managers, district managers leadpersons,
collectors, district coordinators, prepaid subscription clerk,
newspaper distribution schedule clerk, and complaint mail
subscription clerk.
(d) Offer all former El Mundo, Inc. employees listed in the
attachment to the appendix employment in the positions who
370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
would have been hired but for the Respondent’s unlawful
discrimination; employment in the positions for which they
would have been hired or, if those positions no longer exist,
to substantially equivalent positions, dismissing, if necessary,
any persons who were not former El Mundo, Inc. employees
who were hired to fill such positions, in the manner other-
wise specified in the section above entitled ‘‘The Remedy.’’
(e) Make those applicants the Respondent would have
hired but for its unlawful discrimination whole for any loss
of earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in ‘‘the
Remedy.’’
(f) Preserve and, on request, make available to the Board
or its agents for examination and copying, all records, re-
ports, and other documents necessary to analyze Respond-
ent’s compliance with the employment offer provisions and
the amount of backpay due under the terms of this decision.
(g) Post at its Hato Rey, Puerto Rico, facility, copies of
the attached Notice marked ‘‘Appendix.’’7 Copies of the no-
tice, on forms provided by the Regional Director for Region
24, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by Respondent both in English
and in Spanish immediately upon receipt and maintained for
60 consecutive days in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that said notices are not altered, defaced, or covered by any
other material.
(h) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
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 the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT interrogate job applicants about their union
sympathies.
WE WILL NOT discharge any employee for activity pro-
tected by Section 7 of the Act.
WE WILL NOT refuse to recognize and bargain collectively
with Union de Periodistas y Artes Graficas y Ramas Anexas
de Puerto Rico, Local 225, a/w The Newspaper Guild, AFL–
CIO, CLC, as the exclusive collective-bargaining representa-
tive of our employees with respect to rates of pay, wages,
hours of employment, and other terms and conditions of em-
ployment.
WE WILL NOT refuse to honor the terms of our prede-
cessor’s agreement between the Union, or change any term
or condition of employment of our employees in the above
unit, including wages and benefits, without first giving the
Union a chance to bargain over such change.
WE WILL NOT withhold offers from, fail to hire, or other-
wise discriminate against employees because they were em-
ployees of our predecessor or were members or supporters of
the Union to avoid having to recognize and bargain with the
Union or any other labor organization.
WE WILL NOT tell union-represented employees of our
predecessor employer that our practice is to not hire or to re-
strict our hiring of them.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of rights guaranteed
them by Section 7 of the Act.
WE WILL offer Roberto Jusino immediate and full rein-
statement and make him whole for the losses he incurred as
a result of our discrimination against him in the manner
specified in the section of this decision entitled ‘‘The Rem-
edy,’’ and WE WILL remove from our files any reference to
the discharge of Jusino, and notify him in writing that this
has been done and that evidence of the unlawful discharge
will not be used as a basis for future personnel actions
against him.
WE WILL, on request of the Union, cancel any departures
from terms and conditions of employment that existed imme-
diately before our purchase of El Mundo, Inc.
WE WILL retroactively restore preexisting terms and condi-
tions of employment, including wages and benefits that
would have been paid absent such departures until we nego-
tiate in good faith with the Union to agreement or to impasse
as specified in the section of this decision entitled ‘‘The
Remedy’’ and rescind our unilateral subcontracting of unit
work in the circulation department including reinstatement of
the work previously performed at El Mundo, Inc. by the dis-
trict managers, district managers leadpersons, collectors, dis-
trict coordinators, prepaid subscription clerk, newspaper dis-
tribution schedule clerk, and complaint mail subscription
clerk.
WE WILL offer all former El Mundo, Inc. employees listed
in the attachment hereto employment in the position who
would have been hired but for our unlawful discrimination;
employing them in the positions for which they would have
been hired or, if those positions no longer exist, to substan-
tially equivalent positions, dismissing, if necessary, any per-
sons who were not former El Mundo, Inc. employees, who
were hired to fill such positions as specified in the section
of this decision entitled ‘‘The Remedy.’’
WE WILL make whole those applicants for which we un-
lawfully discriminated against, for any loss of earnings and
other benefits suffered.
EL MUNDO CORPORATION