El Mundo, Inc.

National Labor Relations Board - Board Decisions

Dec 15, 1950

92 N.L.R.B. 724 (N.L.R.B. 1950)

In the Matter of EL MUNDO, INC. and ISMAEL DELGADO GONZALEZ
Case No. 38-CA-165.-Decided December 15, 1950
DECISION AND ORDER
On July 31, 1950, Trial Examiner Sydney S. Asher, Jr., issued his
Intermediate Report in the above-entitled proceeding,.finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices within the meaning of Section 8 (a) (1) and (3) of the
Act, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondent and the Union
filed exceptions to the Intermediate Report and supporting briefs.
The Respondent's request for oral argument'is hereby denied, as the
record and briefs, in our opinion, adequately present the issues and
the positions of the parties.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and..recom-
mendations of .the Trial Examiner, with the following additions and
modifications.:
1. The Respondent contends that the Trial Examiner erred in
attaching any significance to the statements in 1948 . and. 1949 of
Respondent's editor, Badillo. We agree with the Trial Examiner
that although the statements were made before the prescribed 6-month
period under Section 10 (b) of the Act, the Board is not precluded
from accepting evidence as to them for the purpose of throwing light
upon events which happened within the 6-month period? Without
determining whether we would have found that Badillo's statements
violated Section 8 (a) (1) of the Act if they had been made within
the 6-month period, we believe his remark that, if the Union was
' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel.
[ Chairman Herzog and Members Reynolds and Murdock].
I Lucerne Hide and Tallow Company, 89 NLRB 989 ; Florida Telephone Corporation, 88
NLRB 1429.
92 NLRB No. 96.
724
EL MUNDO, INC. 725
iiccessful, the effects would immediately be felt and his refusal to
explain what he meant thereby, was nevertheless relevant as back-
ground material for evaluating the character of his later conduct
involved herein.
2. The Trial Examiner found, and we agree, that the Respondent's
actions in reducing Delgado's compensation on October 17, 1949, and
thereafter discharging him on -October 28, 1949, constituted in each
case a separate violation of Section 8 (a) (1) and (3) of the Act.
Unlike the Trial Examiner, ho*i*ever, we believe that the earlier
taking away from Delgado of the extra work performed by him for
Puerto Rico Ilustrado and Radio Station WEMB also amounted to
discriminatory action by the Respondent and constituted another
separate violation of Section 8 (a) (1) and (3).
As more fully set forth in the Intermediate Report, the pertinent
events occurred in the following sequence : Delgado commenced work-
ing for the Respondent in June 1947 as a translator in its cable section.
Early in 1948, Delgado was engaged to do translations for Radio
Station WEMB and in 1949 he was also employed to translate stories
for Puerto Rico Ilustrado, a weekly periodical. Delgado's work for
the radio station and for the periodical was performed at his home
outside of working hours. On or about June 10, 1949, Delgado was
advised by Respondent's business manager, Oviedo, that Respondent's
editor, Badillo, and Oviedo had decided to take away from Delgado
the extra work he was performing for Radio Station WEMB and
Puerto Rico Ilustrado, allegedly because no employee was permitted
to do such extra work without the permission of his superior.
On October 17, 1949, Delgado was informed by the Respondent
that his salary, which was then $55 a week, was. reduced to $40 per
week due to readjustment economies being carried out by the Respond-
ent and in order to eliminate certain salary inequalities. Eleven days
later, on October 28, 1949, Delgado was discharged by the Respondent.
The Respondent's assigned reason for discharging Delgado is that
he was "unadaptable" and that his frequent arguments with his fellow
employees impaired the efficiency of the cable section.
In our opinion, the Respondent's discriminatory motivation in dis-
charging Delgado is readily apparent. During the entire period with
which we are here concerned, Delgado was not only an officer of the
Union, but clearly its most zealous advocate. Actually, lie was the
only employee of the Respondent who continued working actively in
support of the Union's cause after it had lost the election in March
1949. Moreover, it is clear that the Respondent had knowledge of
Delgado's union activities. Indeed, the specific conduct to which the
Respondent refers in'support of its assertion. that he was inadaptable
is inextricably interwoven with his known activities on behalf of the
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. Thus, the Respondent viewed Delgado's frequent attempts
to induce Boscana and Benitez to join the Union and the arguments
which resulted therefrom, as indicative of the fact that Delgado was
not "adaptable."
However, the Respondent further contends that Delgado's activities
were of such a character as to warrant his discharge. While certain
types of union activity are not protected by the Act, we are satisfied
on the record that Delgado's conduct did not exceed permissible limits.
Concededly, Delgado solicited Boscana and Benitez for union mem-
bership, but there is no evidence that he resorted to coercive tactics.
Instead, Delgado engaged in this form of concerted activity in the
conventional and traditional manner.' His persistent entreaties that
Benitez and Boscana join the Union and the arguments which ensued
amounted to no more than the customary method used to attract em-
ployees to a union's cause. Boscana's outburst in the cable section after
one of his sessions with Delgado, which the Respondent apparently
considers substantial evidence of Delgado's inadapability, indicates
to us a manifestation of Boscana's temperamental nature rather than
Delgado's instability. Assuming that Delgado's union. activity may
have indirectly resulted in some impairment of efficiency at the Re-
spondent's plant,4 it is, as the Trial Examiner points out, the price
which must often be paid in order that the rights guaranteed by Sec-
tion 7 may be preserved.'
Under all the circumstances, we believe that, although the Respond-
ent asserts that Delgado was discharged for what it describes as his
"inadapability," it was equating his union conduct with inadaptability
and discharged him for engaging in concerted activities protected by
Section 7 of the Act .6
We next turn to the two successive reductions in Delgado's com-
pensation which occurred within the 5-month period preceding his
discriminatory discharge. The Trial Examiner dismissed that por-
tion of the complaint dealing with Delgado's loss of extra translation
work for Puerto Rico Ilustrado and Radio Station WEMB, on the
ground that no agency or alter ego relationship existed between the
Respondent and the other two companies. We are unable to agree
with the Trial Examiner's disposition of this phase of the case. Ir-
respective of any question as to the exact legal interrelationship be-
'Most of Delgado's solicitation occurred away from the plant outside of work, but on
occasion took place at the plant. However, the Respondent had no rule against solicitation
in the plant and the fact that the Respondent summarily discharged Delgado without prior
warning serves to emphasize that the Respondent was concerned only with,the purpose of
his activities.
4 In fact, the record does not establish that there was any loss of efficiency, as contended
by, the Respondent, due to Delgado's concerted activities.
See The Hoover Company, 90 NLRB 926; Cyril de Cordova & Bro., 91 NLRB 1121.
See Pillsbury Mills, Inc., 74 NLRB 1113.
EL MUNDO, INC. 727
tween the various companies, the record shows that it was the
Respondent that caused Delgado to lose outside extra translations by
applying an alleged restrictive rule and in effect changed Delgado's
prior conditions of employment so that he was unable to perform his
customary extra work.? Thus, the Respondent's business manager,
Oviedo, advised Delgado that he and editor Badillo had decided to
take away from him the extra work for Puerto Rico Ilustrado and
Radio Station WEMB, and to give that work to some one who was
not an employee of the Respondent's editorial department. We think
it is apparent, therefore, that it was the Respondent who controlled
and determined the assignment of the extra work, particularly in light
of the fact that from the time Delgado was advised of the Respond-
ent's decision he never received any more work from Puerto Rico
Ilustrado or Radio Station WEMB and yet was never informed by
either of these companies that it had decided no longer to assign such
work to him.
In our opinion, the basic issue is what motivated the Respondent
in withdrawing Delgado's extra work privileges. The Respondent
seeks to justify its action on the ground that, contrary to an existing
rule, Delgado was doing the extra work in question without his supe-
rior's permission. While Oviedo testified to the existence of such a
rule, there is no evidence that it had ever been promulgated in any
form or enforced. Indeed, although Delgado had been working for
the Respondent for about 2 years, he testified that he had never heard
of a rule requiring him to obtain Badillo's permission before engaging
in outside work and that no one had told him about-it until he was
so advised by Oviedo. In view of the foregoing, we are not persuaded
that the Respondent had a rule prohibiting employees from doing
outside work without its permission. In any event, 'assuming
arguendo that such a rule existed, there is evidence that the Respond-
ent long knew Delgado was performing extra work and waived the
requirement that its consent be obtained. Thus, Delgado was recom-
mended for his work with the Radio Station by Felices, chief of the
editorial department and one of Badillo's principal subordinates.
Also, Delgado credibly testified that he told Badillo in April 1948
about his working for Radio Station WEMB s Finally, although
Badillo stated at the hearing that he did not know Delgado was doing
7 Cf. Waldoroth Label Corporation, 91 NLRB No. 122; Porto Rico Container Corporation,
89 NLRB 1570.
8 Delgado' s testimony was that, in April 1948, he informed Badillo that he was about to
purchase a house and the Banco de Ponce required the signature of his employer on a
document certifying the amount of money he was earning ; and that when Badillo saw the
document and questioned the amount of Delgado' s earnings upon the basis of his salary
from the Respondent, Delgado informed Badillo that he was also translating scripts for the
radio station whereupon Badillo, apparently satisfied with this explanation, signed the
document.
728 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
extra work until Oviedo told him, it appears that when Oviedo in-
formed Delgado that the work was being taken away from him,
Oviedo stated that other employees had complained to Badillo that
Delgado was receiving a special privilege. It seems incredible that
Badillo could have received these complaints simultaneously with his
discussion with Oviedo. On the contrary, we think it most likely that
Badillo knew about Delgado's outside work before he spoke to Oviedo
and that Badillo did not disapprove of such practice at the time he
received the complaints. We believe therefore that, even assuming
that.the Respondent had a rule requiring the Respondent's consent
to outside work, the Respondent impliedly waived its application as to
Delgado.
The Trial Examiner found, that the Respondent discriminatorily
reduced Delgado's salary in October 1949. The Respondent denies
that Delgado's salary was reduced on October 17, 1949, because of his
union activities, but asserts that the reduction was made pursuant to a
general plan of economy and in order to equalize his salary with others
performing identical work. We find, as did the Trial Examiner, that
the record amply supports the conclusion that the reduction of Del-
gado's salary at this time was not a concomitant of the Respondent's
general plan to reduce expenses and to remove salary inequities. In-
deed, it is significant that the Respondent established the economy plan
early.in 1949, and Delgado's salary was not reduced until late in 1949,
at a time when he was the only active union member employed by the
Respondent. The Respondent's selection of this occasion to further
its policy of reducing expenses appears to us to have been more than
coincidental, particularly in view of the fact that Delgado was the sole
translator in the cable section who suffered a salary decrease.
. In view of our rejection of the Respondent 's explanations for its
treatment of Delgado on June 10, 1949, and October 17, 1949, and the
close relation in point of time of such events to his ultimate discharge
for union activities on October 28, we are satisfied that all three events
were motivated by the same unlawful, consideration and must be
viewed together as part and parcel of a predetermined plan to penalize
Delgado for his union activities. We accordingly find that the Re-
spondent discriminated against Delgado in violation of Section 8 (a)
(1) and (3) of the Act, by causing him to lose his extra work with
Puerto Rico Ilustrado and Radio Station WEMB, by reducing his
compensation on October 17, 1949, and by discharging him on October
28, 1949.
The Remedy
Having found that the Respondent discriminated against Delga, 9 -
by reducing his compensation on October 17, 1949, and by-discharging
EL MUNDO, INC. - 729
him on October 28, 1949, we shall, as recommended by the Trial Ex-
aminer, order the Respondent to reinstate Delgado and make him
.Whole in the mariner set forth in the section of the Intermediate Report
,entitled- "The remedy."
We have further found, unlike the Trial Examiner, that the Re-
spondent caused Delgado to be deprived of his extra work for Puerto
Rico Ilustrado and Radio Station WEMB by discriminatorily chang-
ing his conditions of employment. Inasmuch as Puerto Rico Ilustrado
and Radio Station WEMB or its apparent successor Radio Station
.WKAQ are not parties to this proceeding, we cannot require them to
offer to reemploy Delgado. We can, however, order the 'Respondent
to take such action as. is within its power to remove the barrier which it
has erected to Delgado's employment by Puerto Rico Ilustrado and
Radio Station WKAQ. In order to achieve that objective and to
effectuate the policies of the Act, we shall order the Respondent to
notify both Puerto Rico Ilustrado and Radio Station_WKAQ that it
has no objection to Delgado's immediate reinstatement to his former
or substantially equivalent positions, without prejudice to his seniority
or other rights or privileges.
We are also of the opinion, for the reasons stated hereinbefore, that,
'it would effectuate the policies of the Act to require the Respondent
to make him whole, as closely as possible, for any loss of pay or other
incidents of the employment relationship he may have suffered by
reason of the Respondent's unlawful conduct. There are certain inci-
dents of the employment relationship which cannot be restored by
means of a money payment to an employee .9 In this case they may
include Delgado's right as an employee to participate in Territorial
and Federal social security, and other similar benefits to the extent
that such rights were diminished by reason of the discrimination. In
order that such rights, if any, may be restored, the necessary deposits
must be made with the Territorial and Federal agencies to the credit
of Delgado and Radio Station WKAQ and Puerto Rico Ilustrado 10
If Puerto Rico Ilustrado and Radio Station WKAQ had been re-
spondents in this proceeding, the making of such deposits, derived
from deductions from Delgado's wages and taxes upon them would
have been a part of their liability to make Delgado whole. In this
case, however, because they are not respondents, the liability for mak-
0 See, for example , Continental Oil Company v. N. L. R . B., 113 F.. 2d 473 , 485 (C. A. 10),
in which the court sustained a Board Order requiring the Employer to restore to a rein-
stated employee insurance rights lost by virtue of a discriminatory discharge.
10 Although we are ordering the Respondent to make payments to governmental agencies,
this is not the kind of payment which was condemned in Republic Steel Corporation v.
N. L. R. B., 311 U. S . 7. In the Republic Steel case , the Board ordered the respondent to
reimburse the governmental agency for monies paid to discriminatorily discharged employees
by such agency for service performed by the employees for the agency .' in.the present case,,
however, the purpose of the payment is to make Delgado whole by restoring to him rights
which he would otherwise lose, and not to reimburse such agencies.
929979-51-vol. 92--48
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing such deposits, in the amount which would have been made but for
the discrimination, must fall upon the Respondent.
The Respondent will have the same right as Puerto Rico Ilustrado
and-Radio Station WKAQ would have had, if this liability had fallen
upon them, to deduct the amount of the employee contribution from
monies paid to Delgado. Accordingly, we shall order the. Respondent:
(1) To pay to Delgado a sum of money equal to the amount- that he
normally would have earned as wages from Puerto Rico Ilustrado .
and Radio Station WKAQ from June 10, 1949, the date of the dis-
crimination, to 5 days after the date on which the Respondent notifies
Puerto Rico Ilustrado, Radio Station WKAQ, and Delgado, in ac-
cordance with our Order, that it no longer has objection to his im-
mediate reinstatement,h1 less his net earnings during such period'12 and
less such other sums as Puerto Rico Ilustrado and Radio Station
WKAQ, absent the discrimination, would normally have deducted
from his wages for deposit with Territorial and Federal agencies on
account of social security and other similar benefits;'and (2) to pay
the appropriate Territorial and Federal agencies, to the credit of
Delgado and Puerto Rico Ilustrado. and Radio Station WKAQ, a
sum of money equal to the amount which, absent the discrimination,
would have been deposited to such credit by Radio Station WKAQ
and Puerto Rico Ilustrado, either as a tax upon them or on account
of deductions made from Delgado's wages by them, on account of
such social security or other benefits.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that El Mundo, Inc., San Juan, Puerto
Rico, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Circulo de Prensa (Gremio de
Periodistas Puertorriquenos), or any other labor organization of its
employees, by reducing their compensation, by discharging and re-
fusing to reinstate them, or in any other manner discriminating in
regard to their hire, tenure of employment, or any term or condition
of employment;
u Pinkerton's National Detective Agency, Inc., 90 NLRB 205. See also Pen and Pencil
Workers Union, Local 19593, AFL (Wilhelmina Becker ), 91 NLRB 883.
32 In computing the amount due Delgado from June 10, 1949, to October 17, 1949, the date
of his discharge , the wages paid to Delgado by the Respondent shall not be deducted as
earnings ; nor for the period thereafter shall the net earnings of Delgado be deducted from
the amount otherwise due him, except to the extent that they may exceed the amount which
Delgado would normally have earned as wages from the Respondent during the applicable
periods.
EL MUNDO, INC. 731
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist Circulo de Prensa (Gremio
de Periodistas Puertorriquenos), or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain from any
and all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion. as a condition of employment, as authorized in Section 8 (a)
(3) of the Act.
2. Take the following: affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Immediately notify Puerto Rico Ilustrado Publishing Com-
pany Inc., San Juan, Puerto Rico, Radio Station WKAQ, San Juan,
Puerto Rico, and Ismael Delgado Gonzales, at his last known place
of residence, that it has no objection to the immediate reinstatement
of Ismael Delgado Gonzalez to his former or substantially equivalent
positions as an employee of Puerto Rico Ilustrado Publishing Com-
pany, Inc., and Radio Station WKAQ, respectively, without prejudice
to his seniority or other rights or privileges;
(b) Make whole Ismael Delgado Gonzalez for any loss of pay or
other incidents of the employment relationship he may have suffered
because of the Respondent's discriminatory action in causing him to
lose extra employment with Puerto Rico Ilustrado Publishing Com-
-pany, Inc., and Radio Station WKAQ, in a manner described in that
section of the Decision entitled The Remedy;
(c) Offer to Ismael Delgado Gonzalez immediate and full rein-
statement to the position held by him on October 17, 1949, or a sub-
stantially equivalent position, without prejudice to his seniority or
other rights and privileges previously enjoyed, and make him whole
for any loss of pay he may have suffered by reason of the Respond-
ent's discrimination against him on October 17, 1949, and October
28, 1949, in the manner set forth in the section of the Intermediate
Report entitled "The remedy";
(d) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back pay due and the right
of reinstatement under the terms of this Order;
(e) Post at its plant in San Juan, Puerto Rico, copies in Spanish
translation of the notice attached hereto, marked Appendix A.13 Cop-
13 In the event this Order is enforced by a decree.of a United States Court of Appeals,
there shall be.inserted before the words, "A Decision and Order," the words, "A Decree of
the United States Court of Appeals Enforcing."
732 DECISIONS OF NATIONAL. -LABOR RELATIONS BOARD
ies of the said notice, to be furnished.by the Regional Director for the
Twenty-fourth Region, shall, after being duly signed by the Respond-
ent's representative, be posted by the Respondent immediately upon
receipt thereof and maintained by it for sixty (60) consecutive days
thereafter, including. all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by any
other material;
(f) Notify the Regional. Director for the Twenty-fourth Region,
in writing, within ten (10) days from the date of this -Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent : (1) Urged, persuaded,
or. warned its employees, by threats of reprisal or force or promise of
benefit, to refrain from assisting, becoming, or remaining members
of the Union or engaging in or continuing to engage in concerted
activities; and (2) discharged Ismael Delgado Gonzal z on or about
October 28, 1949, because he filed charges and/or gave testimony
under.the Act.
APPENDIX A.
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in CIRCULO DE PRENSA
(GREMIO DE PERIODISTAS PUERTORRIQUENOS), or any other labor
organization of our employees, by reducing their compensation,
by discharging and refusing to reinstate them, or in any other
manner discriminating in regard to their hire, tenure of employ-
ment, or any term or condition of employment.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist CIRCULO DE PRENSA
(GREMIO DE PERIODISTAS PUERTORRIQUENOS), or any other labor
organization, to bargain collectively- through representatives of
their own choosing, to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring cnem-
bership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
WE WILL OFFER to Ismael Delgado Gonzalez immediate and full
reinstatement to the position, held by him on October 17, 1949, or
EL MUNDO, INC. 733
a substantially equivalent position, without prejudice to his sell-'
01hts and privileges previously enjoyed, and,iority or other rig
make him whole for any loss of pay suffered as a result of the dis-
crimination against him.
WE WILL immediately notify Puerto Rico Ilustrado Publish-
ing Company, Inc., San Juan, Puerto Rico, Radio Station WKAQ,
San Juan, Puerto Rico, and Ismael Delgado Gonzales, that we
have no objection to the immediate reinstatement of Ismael Del-
gado Gonzalez to his former or substantially equivalent positions
as an employee of Puerto Rico Ilustrado Publishing Company,
Inc., and of Radio Station WKAQ.
WE WILL make Ismael Delgado Gonzalez whole for any loss of
pay he may have suffered because of the discrimination against
him with respect to his employment for Puerto Rico Ilustrado
Publishing Company, Inc., and Radio Station WKAQ.
WE WILL NOT discriminate in regard to hire or tenure' of em-
ployment or any term or condition of employment against any
employee because of membership in or activity on behalf of any
such labor organization. All our employees are free to become,
remain, or refrain from becoming members of the above-named
union or any other labor organization except to the extent that
this right may be affected by an agreement in conformity with
Section 8 (a) (3) of the National Labor Relations Act.
EL MUNDO, INC.,
Employer.
Dated --------------------- By ------------ ---------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Lewis Moore, for the General Counsel.
Mr. Victor M. Bosch, of San Juan, P. R., for the Union and the Charging Party.
Mr. Jose G. Gonzalez, and Fiddler. Gonzalez & Nido, of San Juan, P. R., for
the Respondent.
STATEMENT OF THE CASE
Upon a second amended charge duly filed on March 31, 1950, by Ismael Delgado
Gonzalez, an individual, herein called Delgado, the General Counsel of the
National Labor Relations Board,' by the Regional Director for the Twenty-fourth
Region (Santurce, Puerto Rico), issued a complaint dated April 5, 1950, against
' The General Counsel and his representative at the hearing are referred to herein as the
General Counsel. The National Labor Relations Board is referred to as the Board.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
El Mundo, Inc., herein called the Respondent, alleging that the Respondent had
engaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1), (3), and (4) and Section 2 (6) and (7)
of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the
Act. Copies of the charge, the first and second amended charges, the complaint,
and the notice of hearing were duly served.
With respect to the unfair labor practices, the complaint alleged, in substance,
(1) that since on or about May 15, 1949, and continuously thereafter, the Re-
spondent interfered with, restrained, and coerced its employees in violation of
Section 8 (a) (1) of the Act by urging, persuading, and warning them by
threats of reprisal or force or promise of benefit to refrain from assisting,
becoming, or remaining members of the Union, or engaging in or continuing to
engage-in concerted activities; (2) that on or about June 10, 1949, the Respond-
ent reduced the compensation of Delgado, and thereafter refused and failed
to restore his compensation to its former amount, because he joined or assisted
a labor organization or engaged in concerted activities for the purposes of col-
lective bargaining or other mutual aid or protection, in violation of Section 8
(a) (3) of the Act; (3) that on or about October 17, 1949, the Respondent
reduced the compensation of Delgado, and thereafter refused and failed to
restore his compensation to its former amount, because he joined or assisted
a labor organization or engaged in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, in violation of Section
8 (a) (3) of the Act; and (4) that on or about October 28, 1949, the Respondent
discharged Delgado, and has since refused and failed to reinstate him because
he joined or assisted a labor organization or engaged in concerted activities
for the purposes of collective bargaining or other mutual aid or protection and
because he filed charges and/or gave testimony under the Act, in violation of
Section 8 (a) (3) and (4) of the Act.
The Respondent duly filed its answer, admitting certain allegations with respect
to the Respondent's operations, denying that it reduced the compensation of
Delgado on June 10, 1949, admitting that it reduced the compensation of Delgado
on October 17, 1949, and that it discharged Delgado on October 28, 1949, but
denying' the commission of any- unfair labor practices, and moving that the
complaint be dismissed. The motion to dismiss is disposed of herein.
Pursuant to notice, a hearing was held at San Juan, Puerto Rico, on various
dates between May 9 and 17, 1950, inclusive, before Sydney S. Asher, Jr., the
undersigned Trial Examiner duly designated by the Chief Trial Examiner. All
parties were represented by counsel, participated in the hearing, and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues. Several witnesses testified through
an interpreter. During the course of the hearing, the Respondent moved to
strike certain testimony introduced by the General Counsel. Rulings on these
motions were reserved; they are disposed of herein.
At the close of the hearing, the General Counsel moved to conform the plead-
ings to the proof. This motion was granted without objection. All parties were
afforded an opportunity tb present their contentions orally upon the record.
None availed himself of this opportunity.. All parties were -granted time after
the close of the hearing to file briefs and/or proposed findings of fact and con-
clusions of law. A brief has been received from the General Counsel, and has
been given due consideration.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
EL MUNDO, INC.
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT 2
735
The Respondent, El Mundo, Inc., is a Puerto Rico corporation with its principal
office and place of business at San Juan, Puerto Rico. It is engaged in the
preparation, publication, sale, and distribution of a .daily newspaper known as
"El Mundo," the most widely circulated daily newspaper in Puerto Rico. In
the course and conduct of its operations, the Respondent causes materials, used
in its business , consisting of ink, newsprint, machinery, and machine parts, to be
purchased, transported, and delivered from and through States and Territories
of the United States to its San Juan plant. The value of these materials exceeds
$100,000 annually. The Respondent also receives certain wire services, such
as United Press and photographs from the Associated Press, and carries adver-
tisements of firms located in the continental United States. The Respondent
distributes the newspapers published by it within the Territory of Puerto Rico.
The Respondent admits in its answer, and I find, that it is engaged in commerce
within the meaning of the Act.
U. THE LABOR ORGANIZATION INVOLVED
Circulo de Prensa (Gremio de Periodistas Puertorriquenos), unaffiliated,
herein referred to as the Union, was formed in November 1947 as a "press
circle" composed of newspaper reporters and editorial employees. At first, it
did not attempt to represent employees in collective bargaining matters or
carry on any labor union activities. In February and March 1949, by means of
a constitutional assembly, a referendum, and ratification by the membership,
the character of the organization was altered. From that time on, the Union
engaged in the representation of employees and the negotiation of collective
bargaining agreements on their behalf. Accordingly, it is found, contrary to
the denial in the Respondent's answer, that since February or March 1949, the
Union has been, and now is, a labor organization within the meaning of Section
2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Respondent's personnel
At the outset, it is advisable to set forth the names and positions held by
some of the individual members of the Respondent's organization concerned
herein.
Angel Ramos is president and majority stockholder of the Respondent. He
is also publisher and general manager.
Pablo Vargas Badillo is the Respondent's editor. He is responsible directly
to Ramos.
Jose Oviedo is the Respondent's business manager. He likewise is responsible
directly to Ramos.
Rafael Rivera Otero, herein called Rivera Otero, is assistant 'editor of, the
Respondent. He reports to Badillo.
Jorge Felices is chief of the editorial department. He is under the immediate
supervision of Rivera Otero.
Orlando Grau is chief of the cable section, which is part of the editorial de-
partment. He assumed this position in January 1949. He is under the
immediate supervision of Felices.
2 The facts concerning the Respondent 's business were stipulated by the parties.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manuel Rivas Olivero, herein called Rivas, is chief of personnel. He reports
to Oviedo.
Carlos Juan Pont is the Respondent's paymaster.
Jose G. Gonzalez is secretary of the Respondent and a stockholder. He is
also the Respondent's attorney.
It was stipulated that Ramos, Badillo, Oviedo, Rivera Otero, and Felices are
supervisors. The Respondent denies that there are any other supervisors. The
General Counsel, conversely, maintains that Gran and Pont are supervisors.
I deem it unnecessary to decide this issue.3
B. The election
On February 28, 1949, the Union wrote a letter to the Respondent informing
the Respondent that it was functioning as a collective bargaining agent, and:
requesting recognition. The record does not indicate whether the Respondent
answered this letter.
On March 7, 1949, the Union filed a representation petition with the Board,
seeking certification as the exclusive bargaining agent of the employees of the
Respondent's editorial department.' Pursuant to an agreement for consent elec-
tion entered into by the Union and -the Respondent, an election was held among
the employees in the agreed unit on March 28, 1949. The results of this election
were 20 votes for the Union and 26 votes against. So far as the record shows,
the Union made no further gttempt to bargain with the Respondent.
C. Alleged interference, restraint, and coercion
The complaint alleges that since on or about May 15, 1949, and continuously
thereafter, the Respondent interfered with, restrained, and coerced its em-
ployees by urging, persuading, and warning them by threats of reprisal or force
or promise of benefit to refrain from assisting, becoming, or remaining members
of the Union or engaging in, or continuing to engage in, concerted activities.
Apparently in support of this allegation, the General Counsel introduced testi-
mony to the effect (1) that in the middle of 1948, Badillo called a meeting at
which he stated that he did not want anything to do with the Union and did
not recognized it ; ' (2) that Rivera Otero attended a meeting of the Union in
January 1949; (3) that Rivera Otero and Grau attended a meeting of the Union
on February 5, 1949; (4) that Grau was active in support of the Union up to the
time of the election of March 28, 1949; and (5) that on March 25, 1949, a few
days before the election was held, Badillo addressed the employees of the edito-
rial department and told them, among other things, that he would resign from
his job with the Respondent if the Union won the election, and that if the Uuion
were successful, the effects would immediately be felt. An employee named
Alegria asked Badillo what he meant by "the effects would immediately be
felt," but Badillo refused to-answer .6
8 The General Counsel also contends, and the Respondent denies, that Rafael Pont Flores,
the Respondent's sports editor, is a supervisor. I find it unnecessary to determine his
supervisory status.
Case No. 38-RC-71.
" It will be recalled that, at this time, the Union was still a "press circle" and had not yet
commenced to act as a bargaining agent. But, in Delgado's words, "it was taking that
trend."
e Based on the testimony of Delgado. Badillo substantially corroborated Delgado's testi-
..mony,regarding the-speech of March, 25, 1949, except-that:he. deflied.statlng that, he would
resign from his job if the Union won the election . The version of Delgado is adopted as the
more accurate.
EL MUNDO, INC. 737
The original charge herein was filed on October 24, 1949, and served upon the
Respondent on October 28, 1949. The events of 1948 and of January, February,
and March of 1949, therefore, occurred more than 6 months before the filing and
service of the charge. Thus, it is clear that no findings of unfair labor practices
may be based upon such occurrences.' Accordingly, I shall recommend that these
allegations of the complaint, with respect to threats of reprisal or force or
promise of benefit, be dismissed.
That is not to say, however, that the events described above must be completely
ignored. They may still have probative value in evaluating and giving meaning
to later occurrences.' I place little weight upon the activities of Rivera Otero and
Grau, particularly since the latter was an active member of the Union, and his
supervisory status is in dispute. On the other hand, Badillo's statements in
1.948, and on March 25, 1949, demonstrate that, at that time, he was not favorably
inclined toward the Union. To that extent, I deem them of some significance in
evaluating testimony given by Badillo with respect to events which occurred
.later.
D. The alleged discriminatory reduction of Delgado's compensation in June
1. Chronology of events
Ismael Delgado Gonzalez commenced to work for the Respondent in June 1947,
as a translator in the cable section of the editorial department, at a salary of
$55 per week. His working hours were from 2 to 6 p. m. and from 7 to 9: 30 p. m.
Toward the middle of 1948, he became active in the union movement. He was
elected vice president of the Union on February 5, 1949, and this fact was com•
municated to the Respondent in the Union's letter of February 28, 1949, referred
to above. Delgado participated in distributing referendum cards to employees
during February and March 1949.' He also urged some of the employees to join
the Union, and attempted to collect wage data from them. After the Union
lost the election, he met with other officers of the Union in April 1949. In the
summer of 1949, the Union's president left Puerto Rico for the continental
United States, and Delgado assumed the presidency. Delgado signed the collec-
tive bargaining agreement between the. Union and Puerto Rico Ilustrado Pub-
lishing Company, Inc., referred to hereafter. There is no doubt that , as Badillo
freely admitted in his testimony, the Respondent was aware of the prominent
role Delgado played in union affairs.
Early in 1948, on the recommendation of Felices, Delgado was engaged to
translate Dick Tracy scripts for radio station WEMB, in addition to his work
for the Respondent. This assignment was made by a Mr. Homan, the first
manager of radio station WEMB. Delgado received $17.50 weekly from WEMB
for this work.
Early in 1949, Juan Luis Marquez, editor of Puerto Rico Ilustrado, assigned
Delgado stories to translate for Puerto Rico Ilustrado, a weekly periodical. Del-
gado completed an average of about two such stories per month at $12 each.
Delgado's work for radio station WEMB and for Puerto Rico Ilustrado was per-
formed at his home , outside of working hours.
° Section 10 (b) of the Act, as amended.
Axelson Manufacturing Company, 88 NLRB 761 ; ef. Southern Fruit Distributors, Inc.,
80 NLRB 1283 , footnote 6 of the Intermediate Report, modified with respect to matters
: not here material , 81 NLRB 259.
' These cards were apparently the method for the employees to indicate whether or
not they desired the Union to change its character from a "press circle " to a bargaining
representative of employees.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After the close of work on May 12, 1949, Delgado became ill and was taken
to a hospital. On May 14, Delgado called the office of the Respondent from the
hospital and spoke to Oviedo, requesting an advance on his salary. Oviedo
visited Delgado at the hospital on the following day and gave him a check for
the requested advance. At this time, Delgado told Oviedo that he had at home
some Dick Tracy scripts for radio station WEMB, some of them translated and
some of them not, and that he was going to send them to Manuel Mendez Balles-
ter, an official of the radio station, so that Mendez Ballester could give them
to somebody else to translate until Delgado returned to work. Delgado also
mentioned that he was translating some stories for Puerto Rico Ilustrado.
Oviedo asked Delgado not to send the radio scripts to Mendez Ballester, but to
him, so that he could transmit them to the proper person.., He also advised Del-
gado to send the stories to the editor of Puerto Rico Ilustrado. Delgado there-
after sent the radio scripts to Oviedo. This incident was reported to Badillo
by Oviedo."
Delgado remained in the hospital for several weeks, and returned to his work
with the Respondent at the beginning of June. On the day he returned to work,
Delgado saw Oviedo and requested the return of the scripts, stating that he was
now in condition to resume their translation. Oviedo did not give any definite
answer. After several other attempts to determine whether the scripts would be
returned to him, Delgado again talked to Oviedo about the scripts a few days
later. Oviedo told Delgado that he had discussed the matter with Badillo, that
Badillo had said that he had heard complaints from other employees that Del-
gado had been given an unusual privilege in receiving this extra work, that no
employee was permitted to do such extra work without the permission of his
superior, and that Badillo and Oviedo had therefore decided to take the work
away from Delgado. Delgado then asked Oviedo for a raise in his salary, which
Oviedo denied on the ground that the Respondent could not afford it. Oviedo'
further stated that the extra translation work was going to be given to someone
who was not an employee of the Respondent's editorial department. From the
time that Delgado returned to work in June 1949, he was never assigned any
more translating work by either Puerto Rico Ilustrado or radio station WEMB.
The complaint alleges that the Respondent discriminatorily decreased Delgado's
compensation on June 10, 1949. The answer denies this. The record is clear
that Delgado's salary from the Respondent of $55 per week was not reduced
in June. The General Counsel, however, maintains that the taking away from
Delgado of the extra work performed by him for Puerto Rico Ilustrado and radio
station WEMB was a discriminatory reduction in Delgado's salary, for which
the Respondent must answer. As neither Puerto Rico Ilustrado nor radio sta-
tion WEMB is joined herein as a party respondent, the question arises as to
whether or not the Respondent is responsible for the action of Puerto Rico Ilus-
trado and radio station WEMB in taking away the extra work from Delgado.
In order to resolve this problem, it is necessary to examine the relationship be-
tween the Respondent, Puerto' Rico Ilustrado, and radio station WEMB.
2. The relationship between the Respondent, Puerto Rico Ilustrado, and
radio station WEMB
Puerto Rico Ilustrado Publishing Company, Inc., is a corporation which owns
and publishes a weekly illustrated magazine known as "Puerto Rico Ilustrado.°
Ramos, whose connection with the Respondent has been described above, is
president, general manager, and publisher of Puerto Rico Ilustrado. Oviedo,
10 The facts found In this paragraph are based on the testimony of Delgado and Oviedo.
EL MUNDO, INC. 739
the Respondent's business manager, is also business manager of Puerto Rico
Ilustrado. He negotiated and signed a collective bargaining contract between
the Union and Puerto Rico Ilustrado. Rivas, chief of personnel of the Respond-
ent, acts in a similar capacity with respect to Puerto Rico Ilustrado. Pont,
the Respondent's paymaster, is likewise paymaster for Puerto Rico Ilustrado.
Gonzalez, the Respondent's secretary and attorney, serves Puerto Rico Ilustrado
in the same capacities. Puerto Rico Ilustrado's stockholders and directors are
different from the stockholders and directors of the Respondent. So far as the
record shows, Marquez, editor of Puerto Rico Ilustrado, holds no position with
the Respondent, nor does the Respondent's editor, Badillo, hold any position
with Puerto Rico Ilustrado.
El Mundo Broadcasting Corporation was a Puerto Rico corporation which
operated and owned the franchise for a radio station known by the call letters
WEMB. Ramos was an officer and director of WEMB. The stockholders of
this corporation were Ramos, his wife, and Gonzalez. Rivas, chief of personnel
of the Respondent and• of Puerto Rico Ilustrado, also was the custodian of
certain personnel records of WE, MB. Pont, paymaster for the Respondent and
for Puerto Rico Ilustrado, was also WEMB's paymaster. Gonzalez, secretary
and attorney for the Respondent and for Puerto Rico Ilustrado, also served
WEMB in the same capacities. The first station manager of WEMB was
Homan, who was responsible to Ramos. Homan was succeeded in that position
by Agustin Camunas. Mendez Ballester was in charge of promoting WEMB's
radio programs. It does not appear that Homan, Camunas, or Mendez Ballester
held positions with the Respondent.
In December 1948, WEMB sold its franchise and all its property to Ramos
personally, and the corporation was dissolved. Ramos continued to operate
WEMB until October 31, 1949, when he relinquished its franchise because he
had purchased the franchise of radio station WKAQ.
The Respondent and Puerto Rico Ilustrado lease space in a building known
as the "El Mundo Building," which is owned by the Puerto Rico Ilustrado Realty
Corporation. During its existence, WEMB likewise leased space in this building
from Puerto Rico Ilustrado Realty Corporation. Radio station WKAQ tempo-
rarily leases space in this building pending repairs in another building which
it owns. At present, the lease for the "El Mundo Building" is in the name of
the Respondent and Puerto Rico Ilustrado, and each corporation pays for its
proportionate share of the space. The record does not show which corporation
pays the rental on Ramos' office. The rent for Rivas' and Oviedo's offices is
paid by the Respondent. However, Oviedo indicated that Puerto Rico Ilustrado
might reimburse the Respondent for part of the rent of Rivas' office.
Delgado was paid for his work for Puerto Rico Ilustrado by checks of Puerto
Rico Ilustrado, and for the work which he did for WEMB by checks of WEMB.
Oviedo and Rivas are paid for their work for the Respondent and Puerto Rico
Ilustrado by checks of the Respondent, but Puerto Rico Ilustrado reimburses the
Respondent for part of their salaries. This arrangement was" adopted in order
to avoid unnecessary clerical work. The record does not show which corporation
pays Ramos' salary.
Gonzalez, attorney for all three corporations, testified credibly and without
contradiction that the decisions made in one corporation have nothing to do
with decisions made in the others, and that the corporations deal with each
other "at arms' length." He further testified that, since a newspaper has more
,to offer its clients if it can also offer advertisement in a weekly magazine, and
vice versa, the Respondent and Puerto Rico Ilustrado cooperate with each other
in that respect, but that Respondent likewise cooperates with other periodicals
in a similar manner.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Conclusions
In short, the picture presented is that of three separate corporations, in all
of which Ramos holds an important office. Moreover, Oviedo is manager- of
two.of them, and Rivas, Pont, and Gonzalez perform related functions for all
three. Nevertheless, there are top management officials of each corporation who.
have no connection with the others, such as Badillo, as editor of the Respondent,
Marquez, as editor of Puerto Rico Ilustrado, and Homan and Camunas, as
former station managers of WEMB. -Moreover, the stockholders and directors
of each corporation are not the same. Finally, there is no evidence that any
of the corporations has a financial interest in the business of any of the others.
Under these cirmustances, it cannot be said that any one of these three separate
corporations is the alter ego of any of the others.
Oviedo testified that he had not known that Homan had assigned extra work
to Delgado, and that he "would not have permitted him to do so, without asking
Mr. Badillo's previous consent." The General Counsel stresses this testimony
in urging the connection of Badillo and Oviedo with radio station WEMB. I
do not so interpret this testimony. I consider Oviedo's statement as consistent
with the separation of functions and corporate existence of the three corpora-
tions. Certainly Badillo, as the editor of the Respondent, had jurisdiction over
Delgado's activities, so long as Delgado was an employee of the Respondent.
The same may be said of Oviedo.
The General Counsel maintains that, if Puerto Rico Ilustrado and WEMB
were not the alter ego of the Respondent, they were at least its agents. A close
analysis of the relationship between the corporations leads me to a contrary
conclusion. In my opinion, the General Counsel has failed to establish facts
sufficient to warrant a finding that such an agency existed. There is insufficient
evidence to prove that the Respondent dictated or controlled the actions of
Puerto Rico Illustrado or of radio station WEMB" On the record before me,
I'find that Puerto Rico Ilustrado and radio station WEMB were not acting
as agents of the Respondent when they took away from Delgado the extra
work which he had been performing for them." Accordingly, in agreement with
the denial contained in the answer, I find that the Respondent did not reduce
Delgado's compensation in June 1949. I will therefore recommend that this
allegation of the complaint be dismissed."
n Independent Pneumatic Tool Co ., a corporation, et 'al ., 15 NLRB 106; Jamestown
Metal Equipment Co., Inc.. et at., 17 NLRB 813, enforced, 123 F. 2d 633 (C. A. 2) ; and
Monsieur Henri Wines , Ltd., et at ., 44 NLRB 1311.
12 In his brief, the General Counsel cites several cases in support of his contention that
the other two corporations were the agents of the Respondent. These cases are all dis-
tinguishable from the instant case. In Union Drawn Steel Company, at al., v. N. L. R. B.,
109 F. 2d 587 (C. A. 3), both respondents were held liable for the acts of an individual
who was an employee of one or both. Moreover, one respondent was the wholly owned
subsidiary of the other. In N. L. R. B. v. Moltrup Steel Products Company, 121 F. 2d
612 (C. A. 3), the respondent was held responsible for the acts of an individual employed
by another corporation, but' it is evident that there was sufficient evidence of agency.
In N. L. R. B. v. Condenser Corporation of America, at at., 128 F. 2d 67 (C. A. 3),
two corporations affiliated through common ownership of stock were joined as respondents.
Both were found liable for the conduct of an individual who purported to act on behalf
of a chamber of commerce. Here, again, there was ample evidence of agency. Finally,
in N. L. R. B. v. Hopwood Retinning Co., Inc., et at., 98 F. 2d 97 and 104 F . 2d 302 ( C. A. 2),
a successor corporation was found to be the agent of its predecessor corporation. Here, too,
the evidence of agency and control.of the agent corporation by the principal corporation
was clear on the facts.
is The Respondent moved to strike certain parts of Delgado 's testimony. Rulings on
these motions were reserved. With regard to testimony concerning conversations between
Delgado and Marquez, and Delgado and Mendez Ballester , the motions are granted. In all
other respects, they are denied.
EL MUNDO, INC. 741
E. The discriminatory reduction of Delgado's compensation in October
1. Chronology of events
The cable section in October 1949 consisted of Grau, its chief, and Delgado,
Carlos J. Benitez, Jose Antonio Rivera Boscana, and Candelaris Rodriguez,
translators . With the possible exception of Benitez, Delgado was the senior
member of the section in point of service. In Grau's absence Delgado was in
charge.
On October 17, 1949, shortly after he reported to work at 2 p. m., Delgado
was informed that his wife had been injured in an accident. Grau gave him
permission to leave,, and he did so. Later that day, Badillo called Grau to his
office and told Grau that he had decided to decrease Delgado's salary and to
increase the salaries of Boscana and Rodriguez. Badillo pointed out that Del-
gado had been hired during an'emergency at a salary "above the standard,"
that Delgado's work "was more or less the same" as that of the other trans-
lators, and that a salary readjustment was necessary, "based on a sense of
justice." Grau replied that he was sorry for Delgado, as his wife had just
suffered an accident. Badillo responded that Delgado had very bad luck"
. On the following morning, October 18, Delgado testified as a witness for the
General Counsel before a Trial Examiner of the Board in an unfair labor practice
proceeding against El Imparcial;' a Puerto Rico newspaper and a competitior
of the Respondent. At about 1:30 p. in., shortly. before his workday was to
commence , Delgado met Grau and told Grau that his wife was still very ill,
and that he wanted to see her. Grau then gave Delgado permission to be absent
from work that afternoon. During this conversation, Grau informed Delgado
that there was a letter waiting for Delgado at the Respondent's plant which
stated that his salary had been reduced. The next morning, October 19, Delgado
went to the Respondent's plant and received the letter. It read :
EL MUNDO
The newspaper with the largest circulation in Puerto Rico
San Juan, P. R.
OCTOBER 17, 1949.
MR. ISMAEL DELOADO,
Translator, Editing Offices of El Mundo,
San Juan, Puerto Rico.
SIR: Due to readjustment economies being carried out by this newspaper
for various months, and in order to eliminate at the same time certain
salary inequalities which have existed in the Cable Department, it has
been decided. that as of today the maximum salary for the translators
in the Cable Dept. will be $40.00 a week.
Taking in consideration the time you have worked in that Department,
we hereby confirm said maximum salary effective this same week.
Yours very truly,
M. RIVAS OLIVERO,
Personnel Department.
11 Based on Gran's testimony. Badillo testified without contradiction that he alone
decided to make the salary readjustme. is after discussing the, matter, with Oviedo several
days before October 1.7.
"Editorial "El Imparcial," Inc., 92 NLRB 1795.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After receiving this letter, Delgado went to the Board's offices for the purpose
of filing unfair labor practice charges against the Respondent. He was told
to come back on October 24. Delgado then reported to work at his usual hour..
During the course of the business day, he showed the letter to various employees
and supervisors, and discussed its contents with them. Chancing to meet Rivas,
Delgado told him he had received his letter, then sarcastically thanked him for
the letter and stated that he hoped it was the beginning of a correspondence
between them. Rivas replied that he was very sorry, but that there was nothing
he could do about it, that he had received orders from management.
On October 24, Delgado returned to the Board's offices and filed the original
charges herein.
At the same time that Delgado's weekly salary was reduced from $55 to $40,
the salary of Boscana was raised from $35 to $40 weekly, and that of Rodriguez
from $30 to $35 weekly. Thus, while Delgado sustained a cut of over 27 percent,
Boseana and Rodriguez received raises of over 14 percent and 16 percent
respectively. Benitez' salary of $37.50 per week remained the same.16
2. Contentions of the parties
The General Counsel maintains that Delgado's salary was reduced in October
1949 because of his union activities. This the Respondent denies. In its answer,
the Respondent explains that the reduction was carried out pursuant to a
general plan of economy and in order to equalize Delgado's pay with that received
by other employees performing identical work.
In support of this position, Oviedo and Badillo testified as follows : For some .
years after the end of World War II, the Respondent's income was diminishing
without a corresponding decrease in expenditures. Early in 1947, Oviedo sug-
gested to Ramos and Badillo a general wage cut of at least 25 percent. This
suggestion was not adopted. Toward the end of 1948, it became apparent that
the economic situation of the Respondent was taking a turn for the worse and
a policy of economy was put-into effect early in 1949. This consisted of reducing
investments in material for publication (including features, serials, etc.), cutting
teletype services, reducing the number of photographs used, economizing in
purchasing goods and supplies, and conserving electricity.17 As part of this
program, vacancies which occurred were not filled unless it could be avoided,'?
and salaries were cut "in all those cases where it was possible." In making
wage reductions, the policy was not to touch the lower brackets-and in some
cases the lower salaries were raised, and the higher salaries were lowered.
Specifically, the readjustment of the translators' salaries accomplished two
objectives: (1) by reducing Delgado's pay $15 per week and raising that of
Rodriguez and Boscana each $5 per week, a net saving of $5 per week was
effected, and (2) a uniform salary was established for men doing exactly the
same work.
16 Benitez died about 6 or 8 months before the hearing. Although his name appears on
the payrolls of October 15 and 29, 1949, it is not clear whether he was actually working
during this period ; lie may have been ill.
17 Badillo testified that the Respondent had not paid any dividends in the past few
years . That fact , however , is not deemed material , especially since Badillo also testified
that "earnings which are made are reinvested in the newspaper itself."
11 By this method , the number of file clerks was reduced from three men to one man.
Also, the vacancy left by the discharge of Delgado on October 28, 1949, was never filled.
EL MUNDO, INC. 743
3. Discussion
The argument that Delgado's salary was reduced as part of the general plan
of economy described above breaks down on close scrutiny. To state that the
raises granted to Rodriguez and Boscana were also part of the same policy of
economy stretches credulity almost to the breaking point.19 Other significant
facts complete the rupture. Although the economies described above were sup-
posed to have started early in 1949, Boscana and Rodriguez were hired that
year. In connection with his promotion from translator to chief of the cable
section, Grau's salary was raised from $40 to $60 per week in March or April
1949. Moreover, analysis of payrolls introduced into evidence indicates that,
on October 15, 1949, the editorial department consisted of 46 employees, with
total salaries of $2,311.89. The same department on October 29, 1949, con-
tained 47 employees, earning salaries totalling $2,365.51. Disregarding an item
of $8.62 representing overtime paid to a photographer, the October 29 payroll-
even after the .reduction of Delgado's salary-represents an increase of $45
per week over the October 15 payroll. This is due to the addition to the pay-
roll of J. Martinez Capo, a rewriter, at a weekly salary of $50. Apparently,
this new employee was hired at about the time that Delgado's salary was cut.
Thus, instead of an economy of $5 per week as claimed by the Respondent, the
expenses of the department were actually increased $45 per week. Further-
more, the Respondent claims that other similar salary reductions were made.t0
But the only concrete example cited was the reduction of Badillo's salary by
$1,000 during 1949. Surely, if there were other instances of salary reduction,
the Respondent possessed the facts and was in a position to substantiate its broad
general claims by specific proof. Therefore, I find that the reduction of Del-
gado's salary was not part of the Respondent's general plan to reduce expenses.
The Respondent's claim that Delgado's salary cut, taken in connection with
the increases simultaneously granted to Boscana and Rodriguez, was an attempt
to remove existing salary inequities is equally without substantial merit.
Badillo testified that Delgado was hired during a period when it was difficult
to secure personnel; consequently it was then necessary to pay higher-than-
average salaries to obtain employees. Asa result, Delgado's salary in October
1949 was "considerably higher" than those of other translators doing exactly
the same work. However, there are indications that Delgado's relatively high
salary reflected elements other than the alleged general high wage level in June
1947. Grau, who was hired only 6 months later than Delgado, started at a salary
of $30 per week-almost half what Delgado was receiving. Moreover, Grau
considered Delgado a better translator in October 1949 than either Boscana or
Rodriguez.n In addition, Delgado had more seniority that Boscana and Rod-
19
The paradoxical nature of this position is underscored by the following - testimohy of
Oviedo on direct examination by the Respondent's attorney :
Q. In the case of Messrs . Boscana and Rodriguez who decided to give them a
raise?
A. It was decided by Mr. Badillo after we had a conversation in which I insisted
that we must of necessity establish a strict plan of economy, if we' were going to
maintain the standard of our paper , if we were not going to run the risk of financial
losses.
Q. In other words, the decision was made by Mr. Badillo in pursuance of an
established policy of economy?
A. Yes.
210n cross-examination , Badillo admitted that ho salary adjustments were made on
October 17, other than those described above. He did not, however, state the dates or.
approximate dates on . which any . other alleged adjustments were made.
11
Badillo testified that Delgado was no better as a. translator than Boscano or Rodriguez.
However , as Grau was chief of the section , I find that he was in a better position to judge
such matters than was Badillo . Badillo's testimony in this respect is therefore rejected.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
riguez, and was in charge of the section in Grau's absence. It would therefore
appear that Delgado was logically entitled to a higher salary than the other
translators.
Be that as it may, the Respondent, of course, had the right to adopt a policy
of equal pay for equal work. However, the record negates the existence of any
such policy. In the editorial department alone, the payroll for October 29,
1949, reveals the following examples of wage "inequities":
Position
Highest
weekly
Lowest
weekly
salary salary
Cartoonist----------------------------------------------------------------------- $100 $30
Rewriter------------------------------------------------------------------------ 80 50
Reporter ------------------------------------------------------------------------ 60 25
Photographer-------------------------------------------------------------------- 85 46
Features translator (Sunday issue)______________________________________________ 65 30
Staff writer (Sunday issue)______________________________________________________ 50 40
Surely, if a policy of equalizing pay existed with respect to the cable section,
it would likewise have been'applied, at least, to other sections of the editorial
department. That the wage "inequities" above were allowed to remain is ample
proof that no such policy was in effect in October 1949. Accordingly, I reject
the Respondent's explanation for the October decrease in Delgado's salary.
What, then, was the real reason for the October reduction in Delgado's salary?
This question, vital to the issues herein, cannot be answered without reference
to the facts surrounding Delgado's discharge, which occurred 11 days later.
In my .opinion, the two events were motivated by the same considerations, and
must be viewed together as part and parcel of the same fabric. Accordingly, I
turn now to the events leading up to Delgado's discharge.
F. The discriminatory discharge of Delgado
1. Chronology of events
Delgado was dissatisfied with the loss of the extra work he,had previously
performed for Puerto Rico Ilustrado and for WEMB, and with the reduction in
his salary. He continued to urge Boscana and Rodriguez to join the Union, lest
they too should suffer similar "damage." Benitez and Boscana were not, how-
ever, sympathetic to the Union and Delgado's constant attempts to have them
join the Union were unsuccessful. Delgado had frequent arguments with them,
mostly with respect to the Union and the election.' With respect to Benitez,
these quarrels took place in the Respondent's editorial room. Those involving
Boscana, however, occurred exclusively during their dinner hour (between 6
and 7 p. in.), either at the house where they regularly ate their evening meal
together, or at the Respondent's plant. Boscana never complained to any of
the Respondent's supervisors about Delgado's persistent requests that he join
the Union. On one occasion, on October 18 or 1.9, Delgado insisted that Boscana
attend a meeting, but Boscana refused.23
u In one instance, however, Delgado and Boscana had a difference of opinion about the
justice of John L. Lewis' position during the coal miners' strike. Boscana criticized the
coal miners, and became "somewhat excited," according to Grau's credited testimony.' On
another occasion they argued about Russia and the United States.
.23 According to Delgado's testimony : "I managed to take Boscana off to the front of
the house, but he left from there." Boscana testified that he did not desire to attend the
meeting, and protested to Delgado, whereupon Delgado replied : "All right, go, go away.':
'Boscana, saying, "All right, then, I am leaving," then left.
EL MUNDO, INC. 745
On about October 20 or 21, , Boscana returned to the Respondent's plant at
about 7 p. in., after having had his evening meal with Delgado. Arriving at
the editorial room, Boscana cried out excitedly : "I am getting fed up with this
blasted thing. It is getting on my nerves."" Rafael Santiago Sosa, a copy
reader who was present at the time, attempted to calm Boscana. On the same
day, Sosa reported the incident to Badillo.
On October 28, 1949, Delgado reported to work at his usual hour, 2 p. in.
Shortly after the start of his business day, he was summoned to Badillo's office.
Badillo told Delgado that he (Delgado) was not adaptable, that he could not
work with other employees as a group, and that Badillo therefore desired to sever
Delgado's relations with the Respondent. Delgado replied that he was trying
to form a union in the Respondent's plant and that it was quite natural that
he should not have harmonious relations with those who were opposed to the
Union. Badillo denied that his decision had anything to do with the Union.
Delgado then asked whether his work had been satisfactory. Badillo answered
that there was no problem with Delgado's work and that he considered Delgado
an efficient worker. He added that, in order not to impair Delgado's future, he
would permit Delgado to choose between resigning and being discharged. When
Delgado refused to resign, Badillo discharged him, and refused his request for
a written statement of the reasons for the discharge. Badillo paid Delgado's
salary, plus the salary for an additional month. Delgado then left, went to the
Board's offices, and filed the first amended charge herein"
Badillo then called Grau to his office and told Grau that he had discharged
Delgado because Delgado had failed to adapt himself and was disrupting the
unity of the Respondent's plant, that he had given Delgado several chances but
that he had been compelled to reach the conclusion that Delgado was not adapt-
able. Grau replied that he was sorry for Delgado. Badillo said that he, too, was
sorry, as he considered Delgado an efficient worker. Grau then answered that
maybe Delgado was a problem in the sense expressed by Badillo, but that he
(Grau) was not sure that what Badillo had done was the best solution.2°
Badillo denied that Delgado's union activities had anything to do with either
the October reduction in Delgado's salary or his discharge. He explained that
he decided to discharge' Delgado "after some months of observation" because
Delgado "was in a continuous state of disagreement with and did not succeed
in adjusting himself to his work at the newspaper," because his attitude was
"negative," because he showed his personnel prejudices and was not cordial to
some of his fellow employees (especially those who did not share his point of
view), and because he had "almost constant" quarrels with Boscana. Badillo
stated that Delgado first became dissatisfied in June when he lost the extra work
he had previously been doing, that his dissatisfaction increased when his salary
was cut in October, and that his attitude kept other employees working with
him "nervous and uncomfortable." Badillo further testified that" this state
of affairs gradually impaired the efficiency of Delgado, Badillo, and Boscana, and
seriously disrupted the operations of the cable section and of the Respondent's
entire plant, to the point where it could no longer be ignored. In support of
24 Based on Boscana's credited testimony. According to the testimony of Sosa, Bos-
cana complained that he was fed up with Delgado's Insistence, that Delgado was con-
stantly bothering him in his work, that he (Boscana) was being persecuted and would be
forced to abandon his ;lob, and, if Delgado persisted, would have to adopt "an energetic
attitude" toward Delgado In order to put a stop to Delgado's molestation. Boscana's
version of the incident Is adopted as the more accurate.
2a The findings of fact contained in this paragraph are based upon Delgado's credited
testimony, corroborated In part by the testimony of Badillo.
m Based on Grau's credited testimony.
929979-51-vol. 92-49
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this contention, Badillo maintained that, about 3 or 4 weeks before Delgado's
discharge, the copy readers 2' and Rivera Otero had called Badillo's attention
to frequent. errors made by Boscana in translations, and Rivera Otero had also
informed, Badillo that he had pointed out to Delgado frequent errors in Del-
gado's work. Badillo's testimony as to whether or not he complained to Grau
about his situation is not clear. On cross-examination by the General Counsel,
he testified as follows :
Q. Did you complain to Mr. Grau that the efficiency of the cable section
was being affected prior to Mr. Delgado's discharge?
A. Before the discharge of Mr. Delgado, as a matter of routine when the
errors had increased I called Mr. Grau's attention.
Q. Did you complain to Mr. Grau prior to Mr. Delgado's discharge on any
specific occasion?
A. Not on any specific occasion because it is a matter of routine in a
newspaper.
When asked by the General Counsel why he had increased Boscana's salary
during the period that Boscana was making frequent errors, Badillo replied that
this was pursuant to the general policy of the Respondent to improve the economic
position of those in the lower salary brackets in the hope that they would do
better work as a result, and also because Boscana's errors were not his own
fault, but the outgrowth of "an abnormal situation" created by Delgado.
Badillo further testified that he reached the decision to discharge Delgado
several days after having discussed the matter with Rivera Otero. He admitted
that he had never reprimanded Delgado about his lack of adaptability, but
explained that this was in accord with his policy of many years standing to
refrain from indicating to employees that he disapproved of their conduct.
Badillo further testified that Boscana' s work improved.after Delgado's discharge.
Oviedo testified that on October 28, at about 1: 45 p. in., Badillo informed him,
for the first time, that he was going to discharge Delgado "for reasons of poor
comradeship and unadaptability."
Boscana testified that Delgado's importunities upset him, because his nature
required peace and quiet in his work. He further slated that the quality of
his work was affected. On cross-examination by the General Counsel, however,.
he admitted that he had signed a statement containing the following assertion:
"I don't think the quality of my work was affected by Delgado's solicitations,
although I felt some uneasiness."
Delgado testified on rebuttal that, in his opinion, the efficiency of the cable
section was about the same in October 1949, as it had been previously. Be
recalled that, on one occasion during the last 2 weeks of his work with the
Respondent, Rivera Otero had called his attention to an error which Delgado
had made in translation, involving a matter of syntax. Delgado testified that
this was the only time any error had been called to his attention.
Grau testified that Delgado was a good worker, efficient and responsible,
although he felt that he was being persecuted. He stated that Delgado's atti-
tude did not interfere in any way with the operations or efficiency of the cable
section, and that the number of errors made by the translators in October 1949,
27 Grau assigned translations to the various translators . When the work was com-,
pleted, the translators returned the original copy to Grau's desk and sent the translation
to the copy readers. If minor mistakes appeared, the copy readers corrected them. In
the case of major errors, requiring reference to the original copy, the copy readers
returned the translation for correction either to Grau, or to the individual translator re-
sponsible. Thus, the copy readers frequently knew the number or extent of errors made.
EL MUNDO, INC. 747
i
showed no increase over the number made in previous months. He further testi-
fied that he had never complained to Badillo about Delgado's attitude.
2. Conclusions
That Delgado was an efficient worker is not seriously disputed. The Re-
spondent's counsel stated on the record that "there is no contention that the
gentleman was dismissed because he was inefficient." It is contended by the
Respondent, however, that Delgado was discharged because he was not adapt-
able, and because his frequent arguments with his fellow-employees impaired
the efficiency of the cable section.
Delgado may be described as an earnest individual who holds tenaciously to
the principles in which he believes. Grau described him as "coldly cordial" to
his fellow-workers, and as a man who "does not characterize himself by his
affability." Grau added that Delgado "is a friend of his friends," but is "not
so spontaneous in his affections." Delgado's attitude toward the. Union's loss
of the election is best revealed by his testimony on cross-examination by the
Respondent's attorney, as follows :
Q. You never became resigned to the results of the election ; in other
words, you resented the results of the election?
A. Why, sure. It was a defeat. Nobody is satisfied with a defeat.
Despite the loss of the election, Delgado continued to work on behalf of the
Union, and to urge his fellow-employees to join the Union. He was the only
employee of the Respondent who continued actively to support the Union after
the election. As has been previously mentioned, he signed the contract between
Puerto Rico Ilustrado and the Union, and became the Union's president in the
summer of 1949.
I am convinced, and find, that Delgado's zealous advocacy of the Union's cause
after the election was the sole reason for the decrease in his compensation in
October 1949, and his subsequent discharge. It was this attitude on Delgado's
part which Badillo termed "unadaptability." For several months before Del-
gado's discharge, Badillo had been aware of Delgado's attempts to influence
Boscana and Benitez with respect to the Union, and it is evident that he felt it
necessary to take steps to remedy a situation which he regarded as undesirable.
It is also significant that Badillo did not warn Delgado before discharging him
that he considered Delgado "unadaptable." 28
The Respondent introduced evidence that two employees who had been known
to have been active in union affairs-Carlos Nieves Rivera, a former, reporter,
and Pilulo Hernandez, a former copy reader-have received promotions. I find,
however, that neither Nieves nor Hernandez was as prominent in union affairs
as was Delgado," and that both Nieves, and Hernandez ceased their union activi-
ties after the Union lost the election. Therefore, the fact that they were pro-
moted is not, of itself, sufficient to overcome the evidence that Delgado's at-
tempts to proselyte Boscana and Benitez were not welcomed by Badillo 30
28 Badillo's explanation for his failure to warn Delgado-that this conformed with
policy-is rejected.
29 Nieves was one of the delegates who represented the Respondent's employees in the
Union's Central Council in February 1949, and Hernandez was a member of the Union
who held no office. Accordingly, Badillo's testimony that Nieves and Hernandez were
"much more active" than Delgado in union activities is rejected.
30 Article 20 of the Code of Commerce of Puerto Rico, 1932 Ed. (Law No. 43, April 28,
1940), as amended by Law No. 84, May 11, 1943, and Law No. 50, April 20, 1949, provides,
in effect, that any employee "discharged from his position without just cause" is entitled
to receive from his employer separation pay equivalent to approximately 1 month's salary.
The General Counsel apparently contends that Delgado was given an extra month's pay,
748 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD
In advocating the Union's cause, Delgado in no way violated any rule of the
Respondent. Indeed, the major part of Delgado's "pressure" upon Boscana oc-
curred away from the plant during nonworking hours $' In any event, it is
abundantly clear that Delgado was engaged in protected concerted activities
when he importuned Boscana and Benitez to join the Union. The Respondent
had no right to interfere with such legitimate activities.
The Respondent maintains that even if Delgado's conduct took place during
nonworking hours, the effects carried over and were felt by Boscana during work-
ing hours, and consequently reduced Boscana's efficiency. Assuming, without
deciding, that this was so, it would not give the Respondent the right to curtail
conduct protected by the Act. Any loss of efficiency due to protected concerted
activities is the price which must often be paid to preserve the rights guaran-
teed by Section 7 of the Act, and constitutes no defense to a charge of unfair
labor practices. The most familiar example of this principle is a legitimate
economic strike. Certainly such a strike may cause economic hardship to the
employer and loss of efficiency in his plant, but nevertheless the employer may
not with impunity discharge or discipline the strikers.
In view of the foregoing, I conclude that the Respondent reduced Delgado's
compensation on October 17, 1949, and thereafter refused and failed to restore
it to its former or a substantially equivalent amount, because he engaged in
protected concerted activities. I further find that the Respondent discharged
Delgado on October 28, 1949, and has thereafter failed and refused to reinstate
him, for the same reason. Each of these actions constitutes a separate violation
of Section 8 (a) (1) and' (3) of the Act. Accordingly, I deny the motion of the
Respondent, contained in its answer, that the complaint be dismissed.
G. The alleged violation of Section 8 (a) (4)
1. Delgado's testimony in the E l Imparcial case
It will be recalled that on October 18, 1949, Delgado testified as a witness for
the General Counsel before a Trial Examiner of the Board in an unfair labor
practice proceeding against El Imparcial. The General Counsel maintains that
Delgado's discharge 10 days later .was due, at least in part, to the fact that he
gave such testimony. It is vital to the General Counsel's contention, of course,
to determine in the first instance whether or not, at the time of Delgado's dis-
charge, Badillo knew that Delgado had testified in the El Imparcial case.
Rivas, the Respondent's chief of personnel, attended some of the hearing in the
El Imparcial case, and was present when Delgado testified." In addition,
Sanchez Cappa, a reporter who customarily covers labor relation matters for
the Respondent, was assigned to attend the hearing for 1 day. When Cappa
at the time of his discharge, in conformity with this law, and that such a payment may
be regarded as an admission that Delgado was discharged without just cause. However,
in view of Badillo's credited testimony that the Respondent customarily pays an extra
month's salary to all discharged employees, except in cases of dishonesty or insubordina-
tion, I place no weight upon the fact that such a payment was made to Delgado at the
time of his discharge.
31 Badillo testified : "The most frequent occasions when Mr.. Delgado acted this way
with Mr . Boscana was when Mr. Boscana was terminating his shift in the afternoon and
went out to get food, after which he would return an hour later for his night shift, when
Mr. Boscana would return very much affected by these conservations. . . Boscana
testified that all the "pressure" that Delgado exerted upon him was exclusively during
the dinner hour.
02 Rivas obtained Oviedo's consent to attend . Rivas testified credibly that he went
to the El Imparcial hearing in order to learn about a subject closely related to his work
as chief of personnel.
EL MUNDO, INC. 749
realized that the hearing would last for an extended period, he was instructed
not to continue with it. Finally, Gonzalez, the Respondent's attorney, repre-
sented El Impartial during the hearing, and in that capacity cross-examined
Delgado. -
Badillo testified that he first learned that Delgado had testified in the El
Impartial matter during the hearing in the instant case. There is no evidence
to show that either Rivas, Cappa, or Gonzalez informed Badillo of this fact,
nor can such an assumption reasonably be made. Badillo's testimony in this
respect is therefore credited. As Badillo alone made the decision to discharge
Delgado, and as Badillo at that time did not know of Delgado's role in the
El Impartial case, it follows that Delgado's testimony in the El Impartial matter
was not in any way responsible for his discharge. I so find.
2. Delgado's filing of charges in the instant case
It will be remembered that on October 24, 1949, Delgado filed the original
charges herein. The General Counsel contends that Delgado's discharge 4 days
later was due, at least in part, to the fact that he filed these charges. Unless,
however, Badillo knew that Delgado had filed charges before he discharged
Delgado, the General Counsel's contention must fall.
Before filing the charges, Delgado told Grau and Jose A. Hernandez, editor
of the Respondent's Sunday issue, of his intention to do so. There is no direct
evidence that either Grau or Heinandez passed on this information to anyone
else. Assuming, without deciding, that Grau and Hernandez were supervisors,
it does not follow that the knowledge thus acquired by them must necessarily
be imputed to their superior, Badillo. This is particularly true because both
Grau and Hernandez were members of the Union at the time.
The General Counsel introduced into evidence an affidavit of service showing
that the original charge was mailed to the Respondent on October 24, 1949. A
return receipt, dated October 28, 1949, was attached. The parties stipulated that
Gilberto Acevedo, if called to the witness stand, would have testified that he was
the messenger who signed the return receipt, that he did not recall when he
obtained the document in question, and that he ordinarily goes to the post office
four times a day, usually at 10 a. in., shortly before noon, between 2: 30 ana
3 p. in., and 6 :30 p. in. The normal procedure at the Respondent's plant with
respect to'mail was as follows : A messenger calls at the post office for mail at
different times of the day, brings it back to the Respondent's plant, and delivers
it to the mail clerk. The mail clerk sorts the mail and distributes it to the var-
ious departments-an operation which requires from an hour to an hour and a
half, depending on the volume of mail in the particular delivery.
Oviedo testified that he received the sealed envelope containing the original
charge from the mail clerk on October 28, 1949, at 4 p. in., that he opened the
envelope and read the contents, and then marked on the envelope the date and
time of its receipt. In support of this testimony, the Respondent introduced the
registered envelope into evidence. It contains on the reverse side postmarks of
San Juan, Santurce Station, dated October 25, 1949, and of San Juan, bearing
the same date 83 Across the face is stamped the words : "Second Notice, Oc-
tober 28,1949." 84 On the reverse is hand-written : "Ree'd 10/28/49, 4: 00 p. in. O."
Oviedo further testified that, after reading the charge and marking the
envelope as described above, he, first telephoned to the Respondent's attorney,
sa The Board's Puerto Rico office is in Santurce and the Respondent's plant in San Juan.
Santurce and San Juan are both parts of the same metropolitan area.
84 When a first notice is sent and the letter is not picked up by the addressee, the
post office sends the addressee a "second notice."
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gonzalez, then showed the charge to Ramos and later to 'Badillo. He set the
time when he showed it to Badillo as approximately 6 p. in. Badillo testified
that he discharged Delgado at 2 p. in., and that he first saw the charges filed
by Delgado at about 4: 30 p. in. on the same day.
In view of the foregoing, I find that Badillo, at the time of Delgado's discharge,
• had no knowledge that Delgado had filed unfair labor practice charges against
the Respondent. Thus, it is clear, and I find, that the fact that Delgado filed
charges herein was not the reason for his discharge. I therefore find that the
Respondent did not discharge Delgado because he filed charges and/or gave tes-
timony under the Act. Accordingly, I shall recommend that the complaint be
dismissed insofar as it alleges that the Respondent violated Section 8 (a) (4) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and Territories, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, I will recommend that the Respondent cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent discriminatorily reduced the compen-
sation of Ismael Delgado Gonzalez on October 17, 1949, from $55 per week to $40
per week . It will therefore be recommended that the Respondent make Delgado
whole for any loss of pay he may have suffered by reason of the discriminatory
reduction in his compensation, by payment to him of a sum of money equal to
$15 per week from October 17, 1949, the date of the discriminatory reduction of
his compensation, to October 28, 1949, the date of his discharge.
It has also been found that the Respondent discriminatorily discharged Del-
gado on October 28, 1949. It will therefore be recommended that the Respond-
ent offer to Delgado immediate and full reinstatement to the position formerly
held by him on October 17, 1949, the date of the Respondent's first discrimi-
nation against him, or a substantially equivalent position,35 without prejudice
to,his seniority or other rights and privileges previously enjoyed, and make
him whole for any loss of pay he may have suffered by reason of the Respond-
ent's discrimination against him, by payment to him of a sum of money equal
to the amount he normally would have earned as wages from the date of his
discharge to the date of the Respondent's offer of reinstatement, less his net
earnings during said period n Loss of pay shall be determined by deducting
from a sum equal to that which he would normally have earned for each quar-
35 In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wher-
ever possible and if such position is no longer in existence then to a substantially equivalent
position." See The Chase National Bank of the City of New York, San Juan, Puerto Rico,
Branch, 65 NLRB 827.
16 Crossett Lumber Company , 8 NLRB 440.
EL MUNDO, INC. 751
terly period, or portion thereof, his net earnings, if any, in other employment
during that period. Earnings in one particular quarter shall have no effect
upon the back-pay liability for any other quarter. The quarterly periods de-
scribed herein shall begin with the first day of January, April, July, and
October 37
In order to insure expeditious compliance with the recommended back-pay and
reinstatement order, I shall recommend that the Respondent, upon reasonable
request, make any pertinent records available to the Board and its agents.
Because of the Respondent's unlawful conduct and its underlying purpose
and tendency, I find that the unfair labor practices found are persuasively related
to other unfair labor practices proscribed and that the danger of their com-
mission in the future is to be anticipated from the course of the Respondent's
conduct in the past 3°. The preventative purpose of the Act will be thwarted
unless the order is coextensive with the threat. In order, therefore, to make
effective the interdependent guarantees of Section 7, to prevent a recurrence
of unfair labor practices, and thereby to minimize. industrial strife which
burdens and obstructs commerce, and thus effectuate the policies of the Act,
I will recommend that the Respondent cease and desist from in any manner
infringing upon the rights guaranteed in Section 7 of the Act d0
It has also been found that the Respondent has not (1) urged, persuaded, or
warned its employees by threats of reprisal or force or promise of benefit to
refrain from assisting, becoming, or remaining members of the Union, or en-
gaging in or continuing to engage in concerted activities; (2) discriminatorily
reduced the compensation of Delgado on June 10, 1949; or (3) discharged Delgado
on October 28, 1949, because he filed charges and/or gave testimony under the
Act. Accordingly, it will be recommended that these allegations of the com-
plaint be dismissed.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, I make the following :
CONCLUSIONS OF LAW
1. Circulo de Prensa (Gremio de Periodistas Puertorriquenos), unaffiliated,
is a labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of
Ismael Delgado Gonzalez on October 17, 1949, thereby discouraging member-
ship in a labor organization, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Ismael
Delgado Gonzalez on October 28, 1949, thereby discouraging membership in a
labor organization, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
4. By such discrimination on October 17 and 28, 1949, the Respondent- has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
37 F. W. Woolworth Company, 90 NLRB 289.
36 F. W. Woolworth Company, supra.
39 N. L. R. B. v. Express Publishing Company, 312 U. S. 426.
49 William Spencer d/b/a Alliance Rubber Company, 76 NLRB 514.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The Respondent has not urged , persuaded , or warned its employees, by
threats of reprisals or force or promise of benefit, to refrain from assisting,
becoming , or remaining members of the Union , or engaging in or continuing
to engage in concerted activities.
7. The Respondent did not on or about June 10, 1949, discriminatorily reduce
the compensation of Ismael Delgado Gonzalez.
8. The Respondent did not on or about October 28, 1949, discharge Ismael
Delgado Gonzalez , because he filed charges,and/or gave testimony under the Act_
[Recommended Order omitted from publication in this volume.]