Editorial "El Imparcial" Inc.

National Labor Relations Board - Board Decisions

Feb 1, 1951

92 N.L.R.B. 1795 (N.L.R.B. 1951)

In the Matter of EDITORIAL "EL IMPARCIAL" INC. and CIRCULO DE
PRENSA (GREMIO DE PERIODISTAS PU1 RTORRIQUENOS)
Case No. 38-CA-107.-Decided February 1, 1951
DECISION AND ORDER
On June 28, 1950, Trial Examiner J. J. Fitzpatrick issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other alleged unfair
labor practices, and recommended that the complaint be dismissed
with respect to such allegations. Thereafter, the Respondent and the
General Counsel filed exceptions to the Intermediate Report and
supporting briefs.
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed 2 The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, except insofar as they are inconsistent with this Decision
and Order.
1. In adopting the Trial Examiner's conclusion that the Respond-
ent has violated Section 8 (a) (1) of the Act, we do not rely on the
following items :
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Members Houston, Reynolds,
and Styles].
2 In connection with the alleged refusal to bargain, discussed below, the General Counsel
in attempting to establish the Union 's majority , offered to prove, through the Union's
secretary, an employee of the Respondent , that two employees of the Respondent had orally
stated to the secretary that they wished to designate the Union as their bargaining
representative ; however , they did not wish to designate the Union in writing, for fear
of possible reprisals from the Respondent . The Trial Examiner refused to receive the
proffered evidence , on the ground that conversations between employees were not material
to the issues of the case , and were not binding on the Respondent . In our opinion such
evidence, even if admitted, would not have been sufficient to establish the fact that
certain of the Respondent 's employees had orally designated the Union as their bargaining
representative , particularly in the absence of a showing that the employees involved
were not available as witnesses . We find, accordingly , that the Trial Examiner's ruling,
even if erroneous , was not prejudicial.
92 NLRB No. 258. 1795
1796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) The alleged rule against solicitation, as such, for the reason
that the evidence fails to establish the promulgation of any rule
which prohibited union solicitation on the employees' nonworking
time. And while we agree with the Trial Examiner that the Respond-
ent violated the Act in connection with the petition repudiating the
Union, we base our finding solely on the Respondent's disparate treat-
ment of prounion and antiunion solicitation, and the active, efforts
of the Respondent through Diaz and Burgos to secure signatures for
the petition;
(b) The disparagement of the Union by Director Ayuso and City
Editor Diaz; and
(c) Chief of Correspondents Burgos' characterization of the Union
as "Communist," and his critical attitude toward Calderon. We find,
however, that Burgos' criticism of Ramos for mixing with a "group
of Communists" constituted an attempt by Burgos to induce Ramos
to abandon the Union, in violation of Section 8 (a) (1).3
2. The Trial Examiner found that the Respondent did not discrimi-
nate with respect to Ramos, Colmenares, and Soto .4 We do not
agree.,'
From the evidence in the record and the findings of the Trial Ex-
aminer it is clear, and we find, that the Respondent was aware, at
least by the time of the January 22 meeting of the Circulo, of the
possibility that the Circulo might be converted into a union, and that
the Respondent was thereafter fully informed of the actions taken by
the Circulo to accomplish its conversion into the Unions We further
find that immediately upon learning of the mere possibility that the
Union might be formed, the Respondent embarked upon a campaign
designed to discourage membership therein and to thwart the repre-
sentation by the Union of a majority. of the Respondent's employees.
Following receipt of the Union's bargaining request of February 28,
the Respondent increased the tempo of its antiunion campaign. In
furtherance of its campaign, the Respondent engaged in the conduct
3 Member Reynolds would base no unfair labor practice finding on Burgos' remarks to
Ramos, inasmuch as they contain no threat of reprisal or promise of benefit.
4 Although the matter is not free from doubt , we agree with the Trial Examiner's con-
clusion that the Respondent -did not discriminate with respect to Vera's hire or tenure
of employment . In the absence of exceptions thereto , we adopt the Trial Examiner's
findings that the Respondent did not discriminate with respect to Deliz, Olmo, or Benero.
:For the reasons stated in the Intermediate Report, Member Reynolds would sustain
the Trial Examiner 's findings with respect to these employees and dismiss the complaint
as to them.
' In view of the participation of employees in the Union , and the Union 's request that
the Respondent bargain with it as the representative of the Respondent 's employees,
we find that the Union exists, at least in part, for the purpose of dealing with employers
concerning grievances , labor disputes , wages, rates of pay, hours of employment, or condi-
tions of work. Accordingly we find, contrary to the contention of the Respondent, that
the Union is a labor organization within the meaning of Section 2 ( 5) of the Act.
EDITORIAL "EL IMPARCIAL" INC. 1797
which we have found violated Section 8 (a) (1) of the Act and, as
found by the Trial Examiner, discriminatorily discharged ' Miranda,
Landron, and Fernandez." It is against this background of inter-
ference, restraint, coercion, and discrimination that we must assess
the Respondent's motives in connection with the discharges of Ramos
and Colmenares, and the discontinuance of Soto's overtime."
(a) Ramos. As found by the Trial Examiner, Ramos was first
employed by the'Respondent in 1945 as a reporter and, in 1948, was
transfer red to an editorial position at an increase in salary 9 ., The
Respondent's officials never criticized Ramos' editorial work.
As heretofore found, the Respondent, immediately upon learning of
the Union's initial organizational efforts, embarked upon. its cam-
paign to thwart the Union's organizational drive, in which it
threatened its employees with discharge if they engaged in union
activity and engaged in other unlawful conduct. Then, without
prior notice, only a few days after the Respondent received the
Union's first majority representation claim and request for recog-
nition, and only 1 day before Ramos was scheduled to make his speech
at the union meeting, the Respondent discharged Ramos, allegedly for
economic reasons. Such a summary discharge of a satisfactory em-
ployee, at such a time, and in the context of the Respondent's unlaw-
ful activity, would, if the employee were a known or suspected union
adherent, and in the absence of a. credible explanation, compel the
conclusion that the discharge was discriminatory. The Trial Ex-
aminer found however that the Respondent merely suspected, but
did not know, that Ramos was a union adherent. He also found
that the Respondent's suspicion was unfortified by the usual union
activity. He concluded that he could not find that Ramos was discrim-
inatorily discharged because of a suspicion that he favored the Union.
He concluded further that Ramos was discharged for economic rea-
sons. On this record, however, we are unable to accept either the
foregoing findings, or the Trial Examiner's conclusions.
The Board has consistently held that a discharge based upon mere
suspicion of union activity is discriminatory 10 Moreover, we find
on this record that the Respondent knew, rather than merely suspected,
' No exceptions have been taken to the Trial Examiner's finding that in discharging
these employees the Respondent violated Section 8 (a) (3) and 8 (a) (i) of the Act.
s See B d Z Hoziery Products Co., 85 NLRB 633, 640, enf. 180 F. 2d 1021 (C. A. 3).
We do not adopt the Trial Examiner's finding that Ramos was transferred to editorial
work because his stories as a reporter were "non-objective " and, "politically colored."
The Trial Examiner attributed testimony to that effect to Diaz and Ayuso. However, it
was Subdirector Ricci who testified to that effect, and his testimony was not corroborated.
Diaz testified that Ramos was transferred because he did not produce enough news, and
Ayuso testified merely that Ramos was a "lousy" reporter.
10 Ozark Hardwood Company, 91 NLRB 1443; Southern Furniture Manufacturing Com-
pany, 91 NLRB 1159.
1798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Ramos was an adherent of the Union. We base this' finding on
(1) the Respondent's knowledge that Ramos was scheduled to make
a speech at a meeting which was to be held on March 5, 1949, after
the Respondent had been advised that the Circulo had been converted
into the Union; (2) Ramos' refusal to enlighten Diaz as to the nature
of this speech, which refusal, under the circumstances, could be in-
terpreted only as evidence that the speech was to be favorable toward
the Union; (3) Ramos' defense of the Union against Burgos' charge
that it was communistic; and (4) Burgos' concurrent attempt to
.induce Ramos to withdraw from the Union. Furthermore, although
Ramos did not actively solicit union authorizations or memberships,
his union activity is nevertheless evidenced by his defense of the
Union against Burgos' criticism and his known intention to deliver
his speech.
We are also unable to agree with the Trial Examiner's expressed
inability to find that Diaz told Ramos, after the Union was organized,
that Ayuso was displeased with him (Ramos). Ramos testified that
a very few days after the February 5, 1949, meeting of the Circulo, at
which meeting the resolution was adopted authorizing the referendum
on the question of converting the Circulo into a union, Diaz told him
that Ayuso was displeased with him. He also testified that this
incident occurred on the same day on which he defended the Union
against Burgos' charges of communism, which latter incident the Trial
Examiner found occurred in early February 1949. Diaz did not
specifically deny Ramos' testimony regarding the foregoing conver-
sation'' He testified, however, that sometime in 1948, while Ramos
was still working as a reporter, he told Ramos that Ayuso was
displeased with his (Ramos') work.
The Trial Examiner found that the record did not clearly show
when the statement regarding Ayuso's `.`displeasure" was made, that
there was merely an implication in Ramos' testimony that it was
made in February 1949, and that because of the discrepancy between
Ramos' and Diaz' testimony, he was unable to find that such a state-
ment had been made after the Union was organized. We are unable,
however, to find any inherent discrepancy in Ramos' and Diaz' testi-
mony. Ramos testified to an incident which occurred in early Febru-
ary 1949, after the Union had begun its organizational efforts. Diaz
testified to a different incident which occurred in 1948. As Ramos'
testimony is uncontroverted, we find that in early February 1949
Diaz-told Ramos that Ayuso was displeased with him (Ramos). In
view, of the Respondent's unlawful activities, as hereinbefore found,
" Diaz . was questioned by counsel regarding conversations with Ramos concerning Ramos'
work, but not concerning Ramos' union activities.
EDITORIAL "EL IMPARCIAL" INC . 1799
and the Trial Examiner's finding that Ricci made a statement of
similar import to Fernandez in early March 1949, we further find that
Ramos' union activities were the cause of Ayuso's "displeasure."
Nor do we find credible the Respondent's contention that Ramos
was discharged because of a decrease in advertising revenue. The
record establishes that the Respondent's advertising revenue decreased
in January and February 1949, as compared with the corresponding
months of 194812 There is, however, no evidence concerning the Re-
spondent's revenue from other sources, or the comparative changes,
if any, in the Respondent's net income. Moreover, despite this sub-
stantial comparative loss in advertising revenue, the Respondent dis-
charged no other employees for alleged economic reasons other than
this one $175 per month employee, and made no substantial personnel
or organizational changes for alleged economic reasons." During
this same period, however, the Respondent hired other employees,
including a $200 per month reporter, and continued with its plans for
its new publication, "El Graffito," even to the extent, as found by the
Trial Examiner, of requiring Vera to resign, on March 15, 1949, be-
cause he would not conform his hours to the requirements of the new
publication.
The record thus establishes that Ramos, a satisfactory employee, but
one of the few then known union adherents,14 and one whose union
activities had incurred the displeasure of the Respondent, was first
urged to abandon the Union by a Respondent which was contempora-
neously engaging in discrimination against other union adherents,
and was summarily discharged shortly after the Union's first majority
representation claim and 1 day before his scheduled speech. More-
over, the Respondent's alleged reason for Ramos' discharge is demon-
strably incredible. On these facts, we can only conclude that the de-
crease in the Respondent's advertising revenue was not the factor
which motivated Ramos' discharge, but rather that such decrease was
used by the Respondent as an excuse to rid itself of a known union
adherent, as part of its campaign to deny to its, employees the rights
guaranteed in Section 7 of the Act.
12 The decrease in January was $275 .21, and in February it was $6,002 . 34. Advertising
revenue in March , April , and May 1949 , was also less than in the corresponding months of
1948. However , as Ramos was discharged on March 4, 1949, events which occurred
thereafter could not under any circumstances have influenced the Respondent ' s actions
with respect to Ramos.
1s The Respondent transferred Soto's Saturday overtime to other employees, thereby
saving approximately $7 per month . ( The Trial Examiner 's findings with respect to Soto
are discussed infra. ) Diaz also testified that as an economy measure the Respondent
eliminated the Saturday shift . of its photographers . The record does not reflect the
savings, if any, realized as a result of this latter action.
14 At the time of Ramos ' discharge , the only union adherents known to the Respondent
as such were Ramos , Fernandez , who the Trial Examiner found was discriminatorily
discharged , and Colmenares , whose case is discussed infra.
1800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We do not believe that our findings as to the Respondent 's motives
for discharging Ramos are affected by any subsequent offer of em-
ployment which the Respondent may have made to Ramos. Even
accepting the Respondent 's contention that Ricci offered Ramos a
position on "El Graffito," no such offer was made until after charges
had been filed alleging Ramos' discharge as a violation of the Act.
Moreover , such an offer , if made, was neither to Ramos' former posi-
tion, nor to a substantially equivalent position. We find accordingly,
on the basis of the foregoing and the entire record, that the Respond-
ent discharged Ramos because of his union activities , in violation of
Section 8 ( a) (3) and ( 1) of the Act.
(b) Colmenares. As found by the Trial Examiner, Colmenares
was originally discharged by the Respondent in July 1947 , for alleged
dishonesty in selling prints of pictures he had taken for the Respond-
ent. He was subsequently rehired in the summer of 1948. Although,
at the time he. applied for reinstatement , he offered to repay any debt
which he might owe the Respondent , nothing was said about the fore-
going incident at the time of his reemployment. Thereafter, Col-
•menares joined the Union, in February 1949, and campaigned actively
in its behalf . During this same period , as found hereinbefore, Diaz
interrogated Colmenares regarding his union activity and advised
him to abandon the Union , and various of the Respondent 's officials
threatened to discharge union members and engaged in other anti-
union activity . On February 28, the Union made its first majority
claim and request for recognition . Then, on March 15, Ayuso told
Soto that the Union was composed of "bad" people , like Miranda,
Fernandez , and Colmenares, that Colmenares was a thief , and that
the members of the Union would have to resign or fight. As the Trial
Examiner found , Miranda and Fernandez were later discriminatorily
discharged . On the same day, more than 18 months after the print
incident, and no less than 6 months after Colmenares was rehired, the
Respondent for the first time recalled the incident by deducting from
Colmenares ' pay the. amount he had received from the sale of the
prints, and warning him that a similar act would not be forgiven. On
the very next 'day, Colmenares was discharged after having been found
to have concealed the fact that he had pocketed . a $5 bill which had
been deliberately planted by the Respondent where Colmenares alone
would find it.
It is not denied, and there can be no doubt ,' that Colmenares was
entrapped into pocketing the $5 bill. The question remains, however,
as to the Respondent 's true motive in laying the trap, for if it was to
establish a pretext to rid itself of a union adherent , the cloud which
it may have cast upon Colmenares ' honesty cannot serve to disguise
the discriminatory character of his discharge. -This presents a close
EDITORIAL "EL IMPARCIAL" INC. 1801
question of fact, but one which, in our opinion, was not resolved by .
the Trial Examiner in accord with the preponderence of the evidence.
The Trial Examiner found, as the Respondent asserts, that the trap
was laid because of petty thievery which had been occuring at the
Respondent's plant, and that Colmenares was singled out because of
:suspicions arising out of his past record. However, although there is
some evidence of petty thievery, there is no evidence to connect Col-
'menares therewith 15 Moreover, the Respondent was aware of Col-
menares' alleged weakness when it rehired him; yet it took no action
to secure payment on account. of the prints which Colmenares had'
sold, or to test Colmenares' honesty, until Colmenares had become
active in the Union, the Union had requested recognition, and Ayuso
had made his threat regarding Colmenares. On these facts, when
viewed in the light of the sequence of events detailed above-including
the specific threat made regarding Colmenares-we conclude that the
alleged petty thievery merely furnished a convenient excuse for the
Respondent's action, and that the trap was laid because of Colmenares'
known union activities, as part of the Respondent's campaign to de-
stroy the Union. We find,, accordingly, that the Respondent dis-
.charged Colmenares in violation of Section 8 (a) (3) and (1) of the
Act.
Although we do not condone Colmenares' conduct in attempting to
conceal that fact that he had pocketed the $5 bill, we do not believe
that, in the circumstances of this case, his conduct warrants our de-
nying him reinstatement 16 Accordingly, we find that Colmenares is
entitled to reinstatement.
(c) Soto. For a year or more before March 1, 1949, the Respond-
ent had given Soto regular Saturday overtime work. About March
1, Diaz, who admittedly knew that Soto was a leading member of the
Union, attempted unsuccessfully to induce him to withdraw there-
from. The following week, Soto's Saturday overtime work was taken
from him and transferred to three other employees, two of whom had
previously voted in favor of converting the Circulo into a union." On
March 15, about 1 week later, Ayuso told Soto that the union members
would have to resign or fight, and that although he would not fire Soto,
the latter had better look for another job.
13 Although there is generalized testimony concerning complaints of petty thievery, the
only specific evidence adduced concerned the disappearance of money belonging to
de Benero. De Benero testified , however, that Colmenares was not "around " when her
money disappeared . The record does not clearly reflect whether de Benero 's loss occurred
before or after Colmenares was discharged.
18 See Wilson & Co., Inc ., 77 NLRB 959 , 961. We emphasize , of course , that an employer
is at all times free to discharge any employee for dishonesty or for any other nondis-
criminatory reason so long as that is the true reason for the discharge.
iv The third employee , Aulet, took no action to affirm his adherence to the Union until
March 16 , when he signed a petition authorizing the Union to represent him.
929979-51-vol. 92-115
•
1802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner concluded that, as the employees to whom Soto's
Saturday overtime work was transferred were union members, and as
the Respondent thereby saved some money, he could not find that the
Respondent's action was discriminatory. We cannot agree. As
found by the Trial Examiner, the record is barren of any evidence that
the Respondent knew that the employees to whom the work was trans-
f erred were union adherents. In view of, the Respondent's .unlawful
conduct, as found hereinbefore, including its discriminatory actions
against other union adherents, we conclude from this lack of evidence,
and contrary to the Trial Examiner, that the Respondent believed that
they were not union adherents. As in the case of Ramos, we reject the
Respondent's contention that its action with respect to Soto's Satur-
day overtime was taken for economic reasons 18
We find, rather, on the basis of the foregoing and the entire record,
that the Respondent, knowing that Soto was a leading union adherent,
transferred his Saturday overtime to employees who it believed were
not union adherents. We further find that the Respondent reduced
Soto's compensation because of his union activities, in an effort to
execute Ayuso's threat to force union members to resign, and as part
of its campaign to defeat the Union. Accordingly, we find that the
Respondent discriminatorily reduced Soto's compensation, in violation
of Section 8 (a) (3) and (1).
3. The Trial Examiner found that the Respondent refused to bar-
gain with the Union in violation of Section 8 (a) (5) of the Act. As
a necessary part of this conclusion the Trial Examiner found that at
all times since March 15, 1949, the Union represented a majority of
the Respondent's employees in the appropriate unit. Because we con-
clude that the record does not support the Trial Examiner's finding
with respect to the Union's majority we cannot adopt his finding that
Section 8 (a) (5) was violated.
. As found by the Trial Examiner, the Union requested the Respond-
ent to recognize and bargain with it by letters dated February 28,
March 24, and April 20, 1949. The Respondent did not reply to the
letter of February 28, and by letters dated March 25 and April 25,
1949, it rejected the Union's requests of March 24 and April 20, re-
spectively. It is as of these dates, accordingly, that the Union's al-
leged majority in the appropriate unit must be tested. As it is beyond
question that the Union did not represent a majority at the time of its
request of February 28, 19 the first relevant date for testing the Union's
majority claim is March 24, 1949.
is As found hereinbefore , the Respondent by this action saved approximately $7 per
month.
19 As of February 28, 1949, the Union had received 13 signed referendum cards and 1
signed specific authorization . At all times relevant hereto, there were in excess of 28,
employees in the app&priate unit.
g; EDITORIAL "EL IMPARCIAL" INC. 1803
The Trial Examiner's finding, that there were 42 employees in the
appropriate unit, is apparently predicated upon the number of em-
ployees in the unit whose names appeared on the Respondent's payroll
for the period ending February 28, 1949, with the addition of 3 em-
ployees whose names appeared on the payroll for the period ending
March 15, 1949, but not on the earlier payroll. Between February 28
and March 24, 1949, however, there occurred the following significant
changes in the number of employees in the unit, which changes the
Trial Examiner failed to take into account: (a) Four employees, all
of whom had either signed referendum cards or specific authoriza-
tions, were discharged or transferred from the unit, or resigned there-
from; 20 and (b) one reporter 21 and one or two photographers'22 none
of whom had designated the Union, were hired.
In addition the name of one employee,23 who had signed a specific
authorization and whom the Trial Examiner included in the unit, does
not appear on the: Respondent's payroll for the period of March 16
through March 31, 1949, although it appeared on the earlier payrolls;
the record contains no explanation of the reason why this employee's
name was dropped from the payroll. Thus, the number of employees
in the unit on March 24, 1949, may have been 38, 39, 40, or 41 depend-
ing on whether Cruz and either or both of the photographers should be
counted or excluded.
The foregoing personnel changes likewise affect the Trial Ex-
aminer's findings that 23 of the employees in the unit had designated
the Union. Of the 13 who the Trial Examiner found had signed
referendum cards,24 4 should not be counted .25 Of the 10 who the
20 Ernesto Cuebas, who resigned on March 11, Virgilio Medina Deliz and Orlando Vera,
who were discharged on March 13 and 15, respectively , and Nelsie Ramirez de Benero, who
was transferred on March 17.
21 Carlos Rechani, who was hired on March 16.
22 John Bucciere , who was hired on March 22, and Mariano Troche, who was hired on a
date which we are unable , on this record, to establish more precisely than as sometime
between March 16 and March 31. The General Couhsel contends that neither Rechani,
Bucciere , nor Troche should be counted in determining the number of employees in the
unit, on the ground that they were hired to replace discriminatorily discharged employees.
Rechani was hired , in part at least, to cover assignments previously covered by Benero.
As we have found that the Respondent did not discriminate with respect to Benero, the
General Counsel 's contention is without merit as to Rechani . Other than to reflect that
Bucciere and Troche were hired as photographers , the record does not contain sufficient
evidence to enable us to determine whether either, or both , were hired to replace Col-
menares, a photographer who we have found was discriminatorily discharged. In any
event, for the reasons stated hereinafter , we find it unnecessary to determine whether
replacements for discriminatorily discharged employees should be counted in determining
the number of employees in the unit.
22 Emilio Cruz.
24 These were the cards upon which employees signified their approval of the conversation
of the Circulo to a labor organization . In view of our ultimate findings herein, we deem
it unnecessary to rule upon the Respondent 's contention that execution . of these cards
did not in any event constitute a valid designation of the Union.
25 Cuebas , Deliz, and Benero, who were no longer employed in the unit on March 24
(see footnote 20, supra ), and William Montalvo , who the record fails to establish was an
employee of the Respondent during the period relevant to this proceeding.
1 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner found had signed specific authorizations 1,26 and pos-
sibly 2,27 should not be counted. However, 2 who signed specific au-
thorizations on March 16,28 and whom the Trial Examiner did not
count, should be counted. Thus, on March 24. the Union represented
19 or 20 employees in the unit, depending on whether Cruz is excluded
or counted. Accordingly, if we accept the contentions most favorable
to the General Counsel and the Union, this including Cruz and ex-
cluding both photographers, the Union would represent 20 out of 39,
or a majority of 1. On any other posture of the case, however, the
Union would represent less than a majority.29
Thus a determination of the Union's majority status, which in no
event could. be more than a majority of one, must depend on a deter-
mination as to the status of Cruz, Bucciere, and Troche on March 24.
However, as already noted the record does not contain sufficient evi-
dence to enable us to determine their status on that date with any
reasonable certainty. We therefore believe that the General Counsel
has failed to sustain his burden of proving that the Union represented
a majority of the employees in the appropriate unit on the crucial
date. As the record fails to reflect any changes in employment in the
appropriate unit between March 24 and April 25, or in the number of
designations secured by the Union, which could favorably affect the
Union's majority status, we find that at no time pertinent to this pro-
ceeding did the Union represent a majority of the Respondent's em-
ployees in the appropriate unit. Accordingly, we shall. dismiss the
allegations of the complaint that the Respondent refused to recognize
and bargain with the Union as the exclusive representative of its em-
ployees in the appropriate unit.
The Remedy
Having found that the Respondent has engaged in and is engaging
in unfair labor practices, we shall order it to cease and desist there-
from and to take certain affirmative action designed to effectuate the
policies of the Act.
As recommended by the Trial Examiner, we shall order the Respond-
ent to offer Graciany Miranda Archilla, Hector Landron Ubinas,
and Ismael Fernandez reinstatement with back pay from the date of
their discharges. As we have also found that the Respondent dis-
criminated with respect to Severo Ramos Alancastro, Francisco J.
21 Mariano Herrera Medina, who the record fails to establish was an employee of the
Respondent during the period relevant to this proceeding.
27 Emilio Cruz, for the reasons stated supra.
28 Jose Aulet and Edwin C. Rivera.
111. e. , 19 out of 38, if all 3 were excluded, or 20 out of 40 or 41, if Cruz and either or
both photographers were counted.
EDITORIAL "EL IMPARCIAL" INC. 1805
Colmenares, and Antonio Arana Soto, we shall also order the Re-
spondent to offer Ramos 3° and Colmenares immediate and full rein-
statement to their former or substantially equivalent positions 31 with-
out prejudice to their seniority or other rights and privileges and
.make them and Soto whole for any loss of pay suffered as a result
of the discrimination against them. In the case of Ramos and Col-
menares, the Respondent's back-pay liability shall run from the dates
of their respective discharges to June 28, 1950, the date of the Inter-
mediate Report herein, and from the date of this Decision and Order
to the date of the Respondent's offer of reinstatement. 32 In the case
of Soto, such liability shall run from the date on which his Saturday
overtime was withdrawn to the date on which he left the Respondent's
employment.33
Since the issuance of the Trial Examiner's Intermediate Report, the
Board has adopted a method of computing back pay different from
that prescribed by the Trial Examiner.34 Consistent with that new
policy, we shall order that the loss of pay be computed on the basis
of each separate calendar quarter or portion thereof during the period
of the Respondent's liability for back pay. The quarterly periods,
hereinafter called "quarters," shall begin with the first day of Jan-
uary, April, July, and October. Loss of pay for each of the above-
named employees except Soto shall be determined by deducting from
a sum equal to that which these employees would normally have earned
for each quarter or portion thereof, their net earnings,35 if any, in
other employment during that period. Loss of pay for Soto shall be
determined by deducting from a sum equal to that which he would
80 The Trial Examiner found that the Respondent offered Ramos a job on "El Graffico"
in July 1949 . As an offer of employment on "El Graffico " is not equivalent to an offer of
reinstatement to Ramos' former or substantially equivalent position , with "El Imparcial,"
we find that such an offer , if made , was insufficient to toll the Respondent 's liability to
Ramos for back pay . We also find that the Respondent is under a continuing obligation
to offer Ramos reinstatement.
81 The expression "former or substantially equivalent position " is intended to mean
"former position wherever possible , but if such position is no longer in existence, then
a substantially equivalent position ." See The Chase National Bank of the City of New
York, San Juan, Puerto Rico , Branch, 65 NLRB 827.
sa This abatement of back pay for the period between the issuance of the Intermediate
Report and our Decision and Order follows Board practice in cases in which, as here, the
Trial Examiner did not recommend the reinstatement of these employees or the award
of back pay to them.
88 The Trial Examiner found that Soto resigned his position in March 1949 . Soto's
uncontroverted testimony established , however, and we find, that he resigned on May
30, 1949.
'IF. W. Woolworth Company , 90 NLRB 289.
85 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where , which would not have been incurred but for this unlawful discrimination , and the
consequent necessity of his seeking employment elsewhere . Crossett Lumber Company,
8 NLRB 440 . Monies received for work performed upon Fedekal, State, county , municipal,
or other work-relief projects shall be considered as earnings . Republic Steel Corporation
v. N. L. R. B., 311 U. S. 7.
1806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
normally have earned as Saturday overtime for each quarter or por-
tion thereof, his net earnings, if, any, in any other employment during
that period which he secured subsequent to the discrimination. Earn-
ings in one particular quarter shall have no effect upon the back-pay
liability for any other quarter.
We shall also order the Respondent to make available to the Board
upon request payroll and other records to facilitate the checking of
the amount of back pay due.36
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Editorial "El Impartial"
Inc., San Juan, Puerto Rico, its officers, agents, successors, and as-
signs, shall : -
1. Cease and desist from :
(a) Discouraging membership in Circulo de Prensa (Gremio de
Periodistas Puertorriquenos) or in any other labor organization of
its employees, by discharging or refusing to reinstate any of them,
or by discriminating in any other manner in regard to their hire or
tenure of employment, or any term'or condition of employment;
(b) Threatening its employees with physical violence or loss of
employment because of their union membership or activity, interro-
gating its employees concerning their union membership or activity,
or initiating, sponsoring, or assisting in the circulation of petitions
of its employees repudiating union membership or activity;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist Circulo de Prensa (Gremio de Periodistas Puertorri-
quenos) or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in concerted
activities for the purposes of collective bargaining or other mutual aid
or protection, or to refrain from any or all of such activities, except to
the extent that such rights may be affected by an agreement requiring
membership in a labor organization 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) Offer to Graciany Miranda Archilla, Hector Landron Ubinas,
.Ismael Fernandez, Severo Ramos Alancastro, and Francisco J. Col-
menares, immediate and full reinstatement to their former or sub-
36 F. W. Woolworth Company, supra.
EDITORIAL "EL IMPARCIAL" INC. 1807
stantially equivalent positions without prejudice to their seniority or
other rights and privileges, and make each of them and Antonio Arana
Soto whole for any loss of pay resulting from the discrimination
against them, in the manner set forth in the section of this Decision
and Order entitled "The Remedy" ;
(b) 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 under the terms
of this Order;
(c) Post at its plant in San Juan, Puerto Rico, copies of the notice
attached hereto and marked Appendix A.37 Copies of said notice,
to be furnished by the Regional Director for the Twenty-fourth Re-
gion, shall, after being duly signed by the Respondent, be posted by
the Respondent immediately upon receipt thereof and maintained by
it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material;
(d) Notify the Regional Director for the Twenty-fourth Region
in writing, within ten (10) days from the date of this Order, what
steps it has taken to comply herewith.
IT IS HEREBY FITRTHER ORDERED that except as otherwise found herein,
the complaint be, and it hereby is, dismissed.
. 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, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in CIRCDIO DE PRENSA
(GREMIO DE PERIODISTAS PUERTORRIQIIENOS) or in any other labor
organization of our employees, by discharging or refusing to
reinstate any of them, or by discriminating in any other manner
in regard to their hire or tenure of employment or any term or
condition of employment.
WE WILL NOT threaten our employees with physical violence
or loss of employment because of their union membership. or
17 In the event this Order is enforced by decree of a United States Court of Appeals,
there shall -be inserted in the notice before the words: "A Decision and Order ," the words:
"A Decree of the United States Court of Appeals Enforcing."
1808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity, or interrogate our employees concerning their union
membership or activity, or initiate or sponsor or assist in the
circulation of petitions repudiating union membership or activity.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the right of self-organization, . to form,
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 purposes of collective bar-
gaining or other mutual aid or protection, or to refrain from any
or all of such activities, except to the extent that such rights may
be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
WE WILL offer to the following named individuals immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to the seniority or other rights and
privileges they enjoyed :
Graciany Miranda Archilla Ismael Fernandez
Hector Landron Vbinas Severo Ramos Alancastro
Francisco J. Collnenares
WE WILL make the above-named individuals and Antonio Arana
Soto whole for any loss of pay suffered as a result of the
discrimination.
All our employees are free to become, remain, or to refrain from
becoming or remaining members in good standing in 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 Act.
EDITORIAL "EL IDIPARCIAL" INC.
Employer.
By -----------------------------------
Dated--------------------
(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
Messrs. Jose G. Gonzalez, Tomas I. Nido, and Guillermo Cintron Ayuso, of San
Juan , P. R., for the Respondent.
Mr. Victor M. Bosch, and Mr. Gracianaj Miranda Archilla, of San Juan, P. R.,
for the Union.
. EDITORIAL "EL IMPARCIAL" - INC. 1 809
STATEMENT OF THE CASE
Upon charges duly filed' by Circulo de Prensa. (Gremio de Periodistas
Puertorriquenos), herein called the Union and sometimes the Circulo or Gremio,
the General Counsel for the National Labor Relations Board, herein called the
Board, through the Regional Director for the Fifth Region (Baltimore, Mary-
land), issued a complaint dated August 31, 1949, against Editorial "El Imparcial"
Inc., of San Juan, Puerto Rico, 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 (5) and Section
2 (6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136)
herein called the Act. Copies of all charges as well as the complaint and notices
of hearing thereon were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint, as amended at the
hearing, alleges in substance that the Respondent :
(1) Since on or about January 1, 1949, has (a) persuaded, warned, and
threatened its employees to refrain from assisting, becoming, or remaining
members of the Union, or engaging in concerted activities; (b) questioned
employees concerning their membership in and activities on behalf of the Union ;
(c) harassed employees with vexatious memoranda concerning their duties,
changed the working hour schedules, and decreased the compensation of em-
ployees, because of their membership in and activities on behalf of the Union ;
and (d) prohibited all solicitation, conversation, and discussion in the Respond-
ent's plant concerning the Union ; (2) Discharged nine employees 2 and has failed
or refused thereafter to reinstate them because they joined or assisted the Union
or engaged in concerted activities ; on or about March 11, 1949, and thereafter
required Graciany Miranda Archilla, herein called Miranda, to punch a time clock
and reduced the compensation paid Antonio Arana Soto by eliminating the assign-
ment of overtime work ; and about March 9, 1949, discriminatorily transferred
Nelsie Ramirez de Benero, herein called Benero, to other work and has since
refused to reinstate Benero to her former position because she joined or assisted
the Union or engaged in concerted activities ; ' and (3) on or about March 1 and
March 25, 1949, and thereafter, refused, to bargain collectively with the Union
as the exclusive representative of the Respondent's employees in an appropriate
union.
The Respondent's duly filed answer, as amended during the hearing, admits
the allegation as to the nature and 'extent of its business, but denies that the
Gremio is a labor organization within the meaning of the Act, or that the
Respondent committed any of the unfair labor practices alleged. It denies that
'The charges were filed as follows : Original charge March 16, first amended charge
March 28, second amended charge July 19, and the third amended charge August 19, all in
the year 1949.
s The names of the employees and the dates of their alleged dismissal are as follows :
Severo Ramos Alancastro, March 14, 1949
Virgilio Medina Deliz, March 14, 1949
Graciany Miranda Archilla, March 15, 1949
Orlando Vera, March 15, 1949
Francisco J. Colmenares, March 16, 1949
Hector Landron Ubinas, March 29, 1949
Ismael Fernandez, March 31, 1949
Porfirio Martinez Olmo, April 25, 1949
Antonio Calderon, July 5, 1949
The allegation of discrimination with reference to Benero was included in the com-
plaint during the hearing on motion of General Counsel's representative and over the
Respondent's objection.
1810 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD
Benero was discriminatorily transferred, admits that the nine individuals listed
in the complaint ceased their employment with the Respondent on or about the
dates charged, but alleges that Deliz and Vera voluntarily left their employment,
Ramos' position had been eliminated "as a matter of administrative policy,.
prompted in part by the need for reduction in operational expenses," and the other
five had been discharged for cause. The answer admits that Miranda was
required to punch a time clock and that the Respondent discontinued the assign-
ment of overtime work to Soto, but alleges that the punching of the time clock
was uniformly required of all employees in the editorial department, and Soto's
overtime work was transferred to a newly hired employee as 'a matter of
economy. It denies the appropriateness of the unit or that the Union is the
exclusive representative of the employees therein, but, in substance, admits
that the Union requested the Respondent to recognize and bargain with it and.
that the Respondent refused to recognize the Union.
Pursuant to notices, a hearing was held from October 17 througi November
12 at San Juan, Puerto Rico; on November 14, at Miami, Florida, and at New
York City on November 17, 1949,' before J. J. Fitzpatrick, the undersigned, duly
designated Trial Examiner. The General Counsel, the Respondent, and the
Union were represented by counsel a Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence pertaining to the issues
was afforded all parties. At the close of the San Juan portion of the hearing
on motion of the General Counsel's representative, the allegation of discrimina-
tion as to Antonio Calderon was stricken from the complaint. At the conclusion.
of the hearing, the parties waived oral argument, but were granted time to file
briefs and/or proposed findings of fact and conclusions of law. A brief has since
been received from the General Counsel.
Upon the entire record made and from my observation of the witnesses, I
make the following :
FINDINGS or FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Editorial "El Imparcial" Inc., is a Puerto Rico corporation
engaged in San Juan, Puerto Rico, in the preparation, publication, and sale of a
daily newspaper, "El Impartial." The Respondent publishes, sells, and dis-
tributes within the Territory of Puerto Rico not less than 58,000 daily copies
of "El Imparcial." During the course and conduct of the business, the Respondent
annually purchases. newsprint, ink, machinery, and machine parts, and other
material used in the preparation of its paper of not less than $200,000, all of
which is imported into the Island, most of it coming from the United S tates.
Upon the above facts, and as alleged in the complaint and admitted in. the answer,
I find that the Respondent is engaged in commerce within the meaning of the
Act.
4 At the conclusion of the hearing on November 17, the record was ordered held open
until December 15, 1949, for the purpose of receiving depositions.
(a) From the Respondent to meet testimony of witness Landron taken at Miami,
and (b ) from the General Counsel to rebut the testimony of Jose D'Avilla Ricci taken
in New York City. No depositions have been offered or received since November 17, and
I hereby declare the recor-l closed.
Union counsel did not attend the adjourned hearing either in Miami or New York.
EDITORIAL "EL IMPARCIAL" INC . 1811
II. THE ORGANIZATION INVOLVED
Circulo de Prensa (Gremio de Periodistas Puertorriquenos) is an unaffiliated
labor organization admitting to membership certain employees'of the Respond-
ents
III..THE UNFAIR LABOR PRACTICES
A. Background and chronology of events'
In the year 1947, the Circulo de Prensa was organized largely through the
efforts of Graciany Miranda Archilla, who at that time was in the editorial
department of "El Mundo," a San Juan daily newspaper. It was an association,
or circle, of Island newspapermen organized for the purpose of maintaining
liberty of the press, preserving and developing editorial practices among news-
papermen, and working for their economic betterment. At the regular annual
meeting of the Circulo held on February 5, 1949, a motion carried unanimously
to submit to the membership a referendum on the question as to whether they
wanted to convert the Circulo into a union (Gremio). At a meeting of the
board of directors on February 28, it was found that a majority of the mem-
bership had voted in favor of the Union. The same day, Circulo President Juan
B. Pagan (who had succeeded Miranda as presiding officer at the February 5
meeting) wrote the Respondent requesting recognition for the Union.
Receiving no reply to this request for recognition, the Circulo on March 7 filed
a petition for certification as bargaining representative of the editorial employees
of the Respondent, (with certain exclusions and inclusions). Thereafter, by
agreement of the parties, an election under Board auspices was set for March
28, to determine whether the Gremio represented a majority of the Respondent's
employees in,the unit above-referred to.8 In the meanwhile union advocates in
the Respondent's plant continued to solicit Circulo members, who had not
already done so, to return favorable referendum cards, and also circulated
union-authorization petitions. Some of this solicitation, at least, was done on
company time and property. On March 16, the Circulo filed with the Board
charges alleging acts of interference and discrimination by the Respondent, and
just prior to the March 28 election date it requested the Board and was granted
permission to withdraw its petition for representation.
It is the General Counsel's contention, challenged by the Respondent, that the
Respondent entered into the consent-election agreement in bad faith and there-
after by various maneuvers and acts of interference and discrimination sought
to destroy the Union in the plant.
8 As originally constituted, the Circulo was a social and cultural association of news-
papermen, but on February 28, 1949, as the result of a referendum vote of the membership,
the board of directors of the Circulo notified all newspaper employers in San Juan of the
formation of the Union. About the same time, the association name, "Circulo de Prensa,"
was changed to read, "Circulo de Prensa (Gremio de Periodistas Puertorriquenos)." The
added portion, freely translated, meaning "Union of Puerto Rico Newspapermen." I
therefore find, contrary to the denial in the Respondent's answer, that during all material
times herein the Circulo was and is a labor organization within the meaning of the Act.
4 Unless otherwise indicated, all dates herein are in the year 1949.
8 Similar elections were set for about the same time in other newspaper plants in. San
Juan, presumably because of petitions filed by the Circulo.
1812 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
B. Interference , restraint , and coercion
1. The claimed rule against solicitation
Antonio Ayuso Valdivieso, president and director of the Respondent, herein
called Ayuso, testified that when the organization of the Gremio first came to
his attention, he issued instructions to Ramon M. Diaz, chief of information
(city editor) in charge of reporters, herein called Diaz; and to Pedro Julio
Burgos at that time chief of correspondents, herein called Burgos, to "stop all
this propaganda either for or against" the Union during working hours. Diaz
testified that when he first heard of the organization of the Gremio, he passed
the information on to Ayuso who then stated in the presence of himself, Carlos
Carrera Benitez, assistant executive editor, herein called Benitez, and Burgos
that "we should not start to make any propaganda against the organization"
because it was illegal for "supervisors" to do so; that as a result of Ayuso's
stated position verbal instructions were issued in "January," ° to all employees in
the editorial department prohibiting propaganda for or against the Union on
company time and property. Benitez, apparently no longer with the Respondent
at the time of the hearing, did not testify." Burgos testified that about the
middle or end of January, Ayuso told Diaz and him, "as executives," not to
"intervene" for or against the Gremio because it was prohibited by law. Jose
D'Avilla Ricci, executive editor," herein called Ricci, testified that he knew of
no such instruction. None of the employees called testified to knowledge of any
rule against solicitation . Regardless of neutrality discussions among some of
the officers, I find that the editorial employees were not told by management
that there was a rule prohibiting solicitation for or against the Union.' Further-
more, as will hereafter be detailed , neither Ayuso, Ricci , Diaz, nor Burgos, re-
mained neutral in their activities and statements to employees in regard to the
Union.
2. Activities and statements by management
a. President and Director Ayuso
As heretofore found, Miranda was president of the Circulo up to February 5,
1949. For some time prior thereto he had been in favor of extending the activities
of the Circulo to include representation of its members in collective bargaining.
A meeting of the Circulo had been noticed for the previous January 22 to discuss
the organization of a union, but because no quorum appeared, no action was
taken at that time. However, prior to the meeting, Miranda, who at that time
was editorial writer for "El Impartial," told Ayuso, about the pending meeting
and the probability that the Circulo would become a Gremio" According to
0 On direct examination,. Diaz stated that the verbal instructions were issued about the
first of February. However, on cross-examination he testified that the rule was established
in January and not in February.
10 There was no showing in the record , however, of Benitez' unavailability as a witness.
".Sometimes also referred to as subdirector.
12 On March 21, 1949, Ricci criticized Ismael Fernandez for talking to an employee about
the Gremlo during working hours, as will hereafter appear in more detail . In his letter
to Fernandez at that time Ricci stated that the "directors personally have adopted a rule.
of absolute forbearance" regarding the employees rights to join or not to join the Union.
It is noted , also, that Ayuso, who interrupted Fernandez' talk on this occasion, made no
reference to any rule.
11 Miranda testified that there had been some publicity about the Circulo plans at that
time and he told Ayuso of the situation voluntarily as he believed it was his duty to do so,
and he also wanted to protect his job.
EDITORIAL "EL IMPARCIAL" INC . 1813
Miranda, Ayuso answering stated that he had no objection to the organization of
responsible journalists , but he did object to organizing " incapable newspaper-
men, such as those that he had in `El Imparcial ,"' and warned Miranda to be
"careful about what he was about to do" because Miranda could lose his "work."
Ayuso did not specifically deny the above testimony of Miranda . He testified
to two talks with Miranda about the Circulo, one in 1947 when Miranda invited
him and he declined to join the newly formed organization , and the second "when
the Circulo became a guild ." At this second talk, according to Ayuso, Miranda
told him that he was resigning from the Circulo because he did not approve of it
changing into a labor organization."
Ayuso did not explain what he had said to Miranda to cause the latter to make
the above statement about resigning from the Circulo . As hereafter appears, the
following February and March Ayuso demonstrated a rabid aversion to the
Union's entry into his plant . I therefore credit Miranda's testimony and find
that in January Ayuso gave him a not too well veiled warning to refrain from
activity for the Union , as otherwise it might mean the loss of his position.
Director Ayuso was a man of aggressive and sometimes violent disposition.16
There is credible testimony that the following incidents caused nervousness and
tension among the editorial department employees during the campaign for the
Union which was spearheaded by employes Miranda, Hector Landron Ubinas,
and Ismael Fernandez , herein called , respectively , Landron and Fernandez.
Landron testified that in early March Ayuso came out of his office wearing a
gun and as he passed the desk where Landron was working he stared at the
latter's stomach and said in a violent manner, "one of these days I am going
to shoot the stomach of somebody here and kick his -- down stairs." Ayuso
did not deny this testimony which is credited . As hereafter appears in more
detail, Ayuso on March 29 refused to protect Landron from threats of physical
violence because of the latter 's union activity.
According to Miranda , one morning between March 10 and 15, Ayuso came
from his private office into the editorial room and in the presence of Super-
visors Benitez , Diaz, and Burgos and the entire editorial staff stated "I am sur-
rounded with saboteurs , pigs and shameless men and I will get rid of them by
means I know of, the quickest way." Ayuso admitted that he may have used
some of the language attributed to-him by Medina, but testified that at the time
he was perturbed by "very dirty conditions in which he had just found the edi-
torial department men's room ." The only other witness who testified relative
to this incident was copy reader Medina, who to a large extent corroborated
Ayuso's testimony . Medina testified that Ayuso came into the editorial room
"pale and indignant" stating that there was excrement on the toilet seat in the
washroom , and "I have given you a decent place - whoever did this" is "filthy."
Medina, who favored a union in the referendum and also signed the authorization
petition but.later authored a letter repudiating the Union which was circulated
on company time and with management assistance, as will hereafter appear in
more detail , was unable to set the time of the incident he described but stated that
it was "some months" before the hearing. Ayuso was not more helpful in
fixing the time, stating that it was in 1949 but he could not recall the month.
14 Miranda denied that he had ever stated to anyone that he was withdrawing from the
Circulo but admitted, and the record otherwise discloses, that he refused to accept renomi-
nation for its presidency at the February 5 meeting.
16 He admitted that he had a gun at his home and also another one in his office. There
is credible testimony that at times he was observed wearing the gun in the plant. An
employee had been shot in the plant some years prior to the incidents herein related.
1814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, it appears that on the occasion testified to by Ayuso and Medina,
the former came out of the editorial department men's room, whereas Miranda
testified that Ayuso, immediately before the outburst, came from his private
office. In view of the vagueness as to time and the discrepancy above referred
to, and on the record as a whole, I credit Miranda's testimony. I further find,
in the light of other contemporaneous threats by Ayuso against union advocates,
that the above statement constituted not only insulting disparagement of union
sympathizers, but also a warning that they would be at least discharged if they
did not abandon the Union.
Reporter Antonio Arana Soto, hereafter referred to as Soto, testified that
about March 15, in the forenoon, he was called to the director's office where
Ayuso, in Diaz' presence, told Soto that he had heard Soto was a member of
the Gremio but did not believe it-that the Gremio was composed of "bad" peo-
ple, like Miranda, who had been fired because he interfered with the editorial
policy of the paper," Fernandez, who lacked responsibility and Colmenares, who
was a thief, and that Soto should not get mixed up with them ; that when Soto
indicated that he intended to retain his membership in the Union, Diaz urged
him to reconsider adding that newspapermen's organizations were no help in
emergencies-citing his own experience when he had poor eyes and vainly asked
the newspapermen to help him, but it was Ayuso who paid the expense of his
treatments ; that Ayuso stated that he regarded all members in the Gremio
as "his enemies" and asked Soto what the latter would do in the event of a
strike, adding that he was good "to good persons" but he could be as "bad as
the worst" to "bad persons" and was able to fight anyone who was "against
him" ; that he had broken the strike at "El Imparcial" 2 years before,
and I will end the Gremio, because when I call these employees here and I
send them to Hell, they will either resign or they will have to fight, and I am
prepared to fight with them. I will finish this. There will be a tragedy here.
that he then told Soto he was not going to fire him, but he better look for another
job. Soto further testified that during the above conversation, Ayuso had a gun
in the right pocket of his trousers.
Ayuso testified that he called Soto into his office to reprimand him for bringing
in for publication items about Victor M. Bosch (union attorney) as he was not
giving free publicity to anyone not a "friend" of his. He denied that he used the
language attributed to him by Soto. Diaz testified that "in January or February"
he was in Ayuso's office when the latter reprimanded Soto for allowing Attorney
Bosch to use him for professional publicity purposes. He was not asked about
and did not deny the testimony of Soto. Considering Ayuso's violent animosity
toward the Gremio, as herein otherwise appears, I find that about March 15,
Ayuso and Diaz made the statements substantially as testified to by Soto.
On March 20 Ayuso and Ismael Fernandez had a violent argument in the edito-
rial room. There is no dispute as to how the argument started. Fernandez left
his reporter's table and went to a corner of the large editorial room near the door
to Ayuso's private office where the art section was located. He inquired of
cartoonist Edwin C. Rivera about some cartoon that had appeared in an American
paper, but also asked about a Gremio-referendum card which he had previously
given to Rivera. While Fernandez was standing talking to Rivera, Ayuso came
out of his office and began questioning Fernandez. There is considerable testi-
mony as to what was then said, some witnesses supporting details of Fernandez'
1e As hereafter appears in more detail under Section III C 3, Miranda was discharged
that same day, March 15.
EDITORIAL "EL IMPARCIAL" INC . 1815
version and others portions of Ayuso's account. I find from the preponderance
of the credible testimony that Ayuso asked Fernandez to explain why he was away
from his work and disturbing others, and when Fernandez replied he had been
talking about a cartoon, Ayuso demanded to know whether Fernandez had been
soliciting for the Gremio ; that when Fernandez either evaded the question 'or
answered in the negative, ° Ayuso questioned Rivera, and on being informed by the
latter that the Union had been discussed, he loudly called Fernandez a "liar" and
added that he did not need any "such type" in the plant ; that Fernandez there-
upon, also in a loud voice, demanded that he be shown proper respect as an
"employee" and as a man because he knew a person had "once been killed in the
editorial room," whereupon Ayuso invited Fernandez "outside." After some
additional belligerent talk on both sides either Burgos or Ricci, attracted by the
uproar, sent Fernandez back to the reporter's desk"
b. Subdirector and Executive Editor Ricci
Editorial writer Miranda testified that just prior to the scheduled January
22 meeting of the Circulo but after Ayuso, as above found, had warned Miranda
against activity in the Circulo, he talked with Ricci about the coming Circulo
.meeting and the probability of converting it into a union ; and that Ricci
objected to his participating in the meeting and cautioned him to be careful
as he might lose his job. Ricci, who the record shows without dispute, had
worked with Miranda on other San Juan newspapers before either came to
"El Impartial" and was his friend, denied in substance the above testimony
of Miranda. In view of the entire record and later developments in the plant,
particularly as they applied to Miranda, I do not credit the denial and find
that in January 1949 Ricci in effect warned Miranda to have no part in the
formation of the Gremio as it might cost him his job.
Landron, whose constructive discharge is discussed hereafter, testified cred-
itably and without denial that upon Ricci's return to Puerto Rico from the
States in early March 'B he told Landron that the latter better stick to his work
and get out of the Gremio as Ayuso was "very stubborn"-"Ile don't respect the
17 Fernandez testified that Ayuso asked him whether he had been talking about the
Gremio and that he responded "Yes, but that wasn't of any importance." Ayuso's version
is that he asked Fernandez what he was doing and Fernandez answered he was not
"making any propaganda" or "talking about the Gremio."
18 According to employee Antonio Calderon, heretofore referred to, about 2 or 3 o'clock
of the same day (and apparently after the above incident with Fernandez) he joined Ayuso,
Ricci, and Diaz, who were talking in the reception room which adjoins the editorial
department, and as he approached the group he heard Ayuso say, "if he wanted to ter-
minate the Gremio" he would start by firing Fernandez and some others and that he had
fired Miranda ; that as he joinned the group, Burgos asked Calderon why he had previously
told him the Union would win in the election, and Ayuso then inquired of Calderon if he
knew "anyone else" who was in the Gremio. Both Burgos and Ayuso denied that any
such incident occurred or that they made the statements attributed to them. Diaz was
not questioned about it. Ayuso's further testimony that he used his private office, and
not the public reception room, to discuss matters with supervisors is certainly not improb-
able. Moreover, Calderon first testified that Burgos questioned him about his election
prediction after Ayuso had inquired if he knew any other union members, but on cross-
examination he testified that it was not until Ayuso heard Burgos' query that Ayuso
addressed him. Furthermore, it does not seem probable that management would have
engaged in such a discussion in the presence of or made such type of inquiry to an
employee suspected at least of being sympathetic to the Union . Because of the improb-
ableness of the testimony and its inconsistency as well as the denials thereof, I do not
credit Calderon 's testimony in the above respect.
. 11 The record discloses that Ricci was in the United States on a business trip for about
a month.
1816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
idea[s] of others" about the Union and would "destroy" it. On March 22,
Landron wrote Ricci a letter among other things complaining of the unfair
attitude of management; and particularly Ayuso, toward union members which
was causing tension among the employees and suggested "we get back to the
normal relations of friendship and consideration that prevailed before" the
Gremio was organized. Ricci did not answer the letter. On March 29, as will
hereafter appear in more detail, Landron having been threatened with physical
violence by Gilberto Cintron Ayuso, ° a former employee in the circulation
department and a relative of President and Director Ayuso, asked Ricci for
protection. According to Landron's credited testimony, Ricci replied that he
had previously warned Landron to leave the Union, and added, "somebody is
going to be hurt"-"One of these days" there will'be a "tragedy"-"I wash my
hands of this altogether." 21
Ismael Fernandez testified that in early March Ricci in giving him a morning
assignment stated that Ayuso was well pleased with Fernandez' work but did
not like his activity in the Gremio and he would have to discontinue it or he
would "have to go" and that he replied he believed in the Gremio and would
not leave it for any such reason. .Ricci denied that he had ever talked to
Fernandez about the Gremio. Fernandez continued his activity in the Union
and this fact was known to management. As a matter of fact, as hereafter
found, he was discharged because of such activity. In view of the entire record,
I reject Ricci's denial and find that he made the statements substantially as
testified to by Fernandez.
c. Chief of Information (City Editor) Diaz
Severo Ramos Alancastro, a Catholic priest employed as a writer by the Re-
spondent, and whose discharge on March 4 is discussed hereafter, had written
a speech for delivery to the February 5 annual meeting of the Circulo. Due
to the lateness of the hour, he was unable to deliver the address. Several times
thereafter, according to Father Ramos' denied but credited testimony, Diaz
inquired as to the nature of this speech, but he declined to explain 22 I find that
by the above questioning Diaz sought to ascertain what Father Ramos' attitude
was toward the newly formed.Gremio.
A number of other employees testified credibly that in February or March
1949, Diaz questioned them about their interest or affiliation with the Union
as follows:
Francisco Colmenares, herein called Colmenares, and whose discharge is dis-
cussed hereafter, testified that in February Diaz asked him if he was a member
of the Circulo of Newspapermen (a rival organization) when he indicated inter-
est in the Circulo. Diaz told him to leave that- organization and join the Asso-
ciation.23 It is the credited testimony of Virgilio Medina Deliz, herein called
Deliz, whose resignation on March 14 from the Respondent's employ is described
hereafter, that about the first of March, Diaz inquired from him whether he was
. 20 Gilberto Cintron Ayuso is not to be confused with Hector Cintron Ayuso, Respondent's
business manager.
21 Rlcci did not specifically deny the above testimony but stated that when Landron
complained about Gilberto Cintron Ayuso's threats, he told Landron to disregard them
as Gilberto would not follow through on any of his threats.
2" Diaz testified that he was a good friend of Ramos but stated that he never discussed
"anything in connection with the Circulo" with him and that he did not "comment with"
Ramos about the latter's prepared talk.
23 Diaz did not, deny the above testimony. He testified that he had "no difficulty with"
Colmenares because the latter belonged to the Circulo.
EDITORIAL "EL IMPARCIAL" INC. 1817
a member of the Gremio and when he responded in the affirmative Diaz told
him, ". .. leave that business alone that Gremio has been organized to create
problems at El Imparcial." 24
Reporter Soto, previously referred to, testified credibly that early one morn-
ing in the editorial room about the first of March, Diaz stated that he knew Soto
was a member of the Gremio, an organization that was no help to Puerto Rico
newspapermen; that the Association.was a better group and he had turned
in Soto's name so that the latter could.enroll therein25 Antonio Calderon, also
referred to heretofore, testified credibly that while working in the editorial room
on March 17, he noted Ayuso, Ricci, and Diaz talking together at Ricci's desk
and occasionally looking toward him ; that a short time later after Diaz had
returned to his own desk, the latter called Calderon over to him and inquired
whether he was a member of the Gremio ; that when he evaded a direct answer
but indicated some interest in the Gremio, Diaz stated that a majority of the
union members employed by the Respondent had been fired from other news-
papers ; that the Union could not win at "El Imparcial" and Diaz would endeavor
to get him into the Association. Calderon further testified that during the lunch
hour on March 21, Diaz called him over to where a sample ballot for the coming
representation election was posted and demonstrated how Calderon, in voting,
should make a large cross in the appropriate square from corner to corner "so
that I can recognize your ballot" against the Gremio Ze
d. Chief of Correspondents Burgos
24
According to reporter Landron, heretofore referred to, about the time of the
February 5 Circulo meeting above described Burgos, after praising his work
and promising to recommend that Landron be given a raise, told him that he
had better leave the Gremio alone as it consisted of Communists. Father
Ramos testified that at the time he challenged Burgos' statement that the
Gremio consisted of Communists.
Burgos admitted talking to Landron about the Union. His testimony is that
Landron solicited him to join the Gremio, and in response he stated that he
24 Diaz admitted inviting Deliz to an Association meeting, and Deliz' refusal of the
invitation on the ground that he was interested in the Circulo. He further testified that
be had "no discussion" with Deliz "on account of his affiliation with" the Circulo.
25 Diaz denied that he had tried "to influence" Soto to resign from the Circulo. He
admitted talking to Soto about the two organizations above described but stated that
the circumstances were as follows :
Ismael Fernandez ( heretofore referred to) invited him, in Soto ' s presence , to join the
Gremio but he refused the invitation stating that he was a member of the board of direc-
tors of the Association, a rival society ; that Fernandez then left and he continued talking
to Soto about the ineffectiveness of either organization in helping their members-citing
his own experience when the Association . had been of no help at a time when his eyes
failed him, but Ayuso had assisted him ; but that the indicated program of the Association
would eventually assist newspapermen. As hereinbefore appears, Diaz told Soto of his
personal experience when he had been helped by Ayuso, about March 15 when Soto was
being questioned by Ayuso in Diaz' presence. In any event, I am satisfied and find that
on the first March occasion , Diaz knowing that Soto was interested in the Circulo, sought
to have him leave that organization and join the Association.
^ Diaz testified it was Calderon who called him over to the bulletin board and with a
large cross demonstrated how he would vote, "so that you will know ." Diaz' version is
rejected as improbable in view of Calderon's efforts, as above appears, to avoid a clear
cut commitment to management as to his union intentions.
27 In February or March 1949, Burgos was transferred to the position of chief of the
circulation department. However, he also continued to act as chief of correspondents
during the periods herein discussed.
929979-51-vol. 92-116
1818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could not join as he regarded the leaders and some of the members of the Gremio
as "Communists" ; that when Father Ramos intervened, he told the latter that
it was strange that a Catholic priest should be "in that group of Communists."
I credit the testimony of Landron and Father Ramos and find that in early
February 1949 Burgos sought to discourage Landron's interest in the Gremio
by referring to its leaders and some of its members as Communists ; and that
when Father Ramos questioned this characterization of the union membership,
lie criticized the priest for mixing with "Communists." $3 10
►
Orlando Vera's R0 testimony, denied in effect by Burgos, is credited that on
March 8 Burgos questioned him as to his. membership in the Union $0
Reporter Calderon, heretofore referred to, testified that on March 23, Burgos
accused him of soliciting a laboratory employee, Davilla, to join the Union stat-
ing Calderon should have more "character" as he had previously told manage-
ment lie was not a union member ; and that Burgos then referred to Landron
as "another one." "After I brought him here . . . he has gone against us."
As found above, Diaz previously questioned Calderon on March 17 as to his
union affiliation, and upon receiving an evasive answer promised to get Calderon
a membership in the Association of Newspapermen. ai Under all the cricum-
stances, I credit Calderon's testimony and find that on March 23 Burgos, by the
above statements sought to discourage his union activity." ,
e. Chief Photographer Francisco Circuns
A few days after the February 5 Circulo meeting above referred to, Circuns,
admittedly a supervisor, saw a referendum card with photographer •Portfirio
Martinez Olmo's name written or printed thereon, and asked Olmo what he-
proposed to do with it. On being informed by Olmo that he did not know,
'Circuns asked for the card and turned it over to Director Ayuso. When the
sample ballot for the pending election was posted on the plant bulletin board,
Circuns demonstrated to Olmo and possibly one or two other employees how to
use it when voting. Later the same. day, according to Olmo's credited testimony,
Circuns asked him to report anyone he saw talking about the Gremio in the
plant 83
28 This finding is further buttressed by the fact, above found, that Ricci, Burgos' superior,
on his return from a month's stay in the States in early March also warned Landron to
leave the Gremio stating "everything is messed up here ... Ayuso was "very stubborn" and
would "destroy" the Union.
30 Vera's later release from employment is discussed in Section III C, infra.
80 Burgos was not asked specifically whether he questioned Vera as to his union member-
ship, but he denied generally that he had ever discussed any matters "pertaining to the
Guild" with Vera.
31 The Association is also referred to in the record as the Society of Newspapermen.
22 In early March Diaz reprimanded Nelsie Ramirez de Benero for telling a reporter for
"El Mundo" that Ayuso was going to fire all Circulo members. According to Benero, she
told Burgos of Diaz' reprimand and Burgos replied that Diaz was a "framer," that he
[Burgos] had made the statement and that it was true ; and that she then told Burgos she
was a member of the Circulo. I do not credit the testimony which was specifically denied
by Burgos. Benero was not too frank a witness as will hereafter appear.
33 Circuns denied asking Olmo to report anyone found talking about the Union. Although
Olmo actually signed a union-authorization petition, as will hereafter appear, there is
no indication that the Respondent was aware of that fact. In fact, when, as above found,
Olmo actually signed a union-authorization petition, as will hereafter appear, there is
ranted in assuming he was not interested in the formation of a union . In view of the
concerted effort of the Respondent to eliminate the Union from the plant herein found,
I do not credit Circuns' denial and find that he asked Olmo to turn union informer in the
belief that he was not in favor of such an organization.
EDITORIAL "EL IMPARCIAL" INC. 1819
. 3. The petition repudiating the Union
A few days before the March 28 election date a letter rejecting the.Gremio
as bargaining representative was circulated in the editorial department during
working hours. Most of the employees therein including one lower bracket
supervisor," as hereinafter found, signed an original and two copies of this
letter. The body of the letter, addressed to Juan B. Pagan, who had succeeded
Miranda as president of the Circulo, reads as follows :
Sui. :
Having been informed that in the name Hof the Press Circle you have
alleged to represent the majority of the employees of El Imparcial before
governmental organizations, we the undersigned want it understood that
we have not authorized you, nor any person or organization, to represent us.
We want to add also that of the undersigned, some never belonged to the
Circle, and others have withdrawn from same for not being in accord with
its philosophy.
The letter was drafted by Samuel Medina, an attorney employed as copy
reader by the Respondent. He and Nicolas Durant, translator for the Respond-
ent who had resigned as a member of the Circulo board of directors, obtained
some signatures in the editorial department, but mainly the letter was passed
from desk to desk during working hours or circulated by the office messenger
in the presence of supervisors and without any attempt at secrecy. There is
credible testimony that solicitation for signatures to this letter proceeded not
only with the knowledge and approval of management but with some assistance
from Diaz" and Burgos.3° This attitude of management in permitting and in
assisting in the solicitation of signatures to the above letter repudiating the
Gremio is in marked contrast to the Respondent's attempts, above found, to
prevent any solicitation for the Gremio in the plant.
Conclusions as to interference, restraint, and coercion : I find that the Respond-
ent: (a) By attempting to establish and enforce a rule. against solicitation for
the Union and permitting and assisting in securing signatures repudiating the
Union; (b) Director Ayuso's warning to editorial writer Miranda to refrain
from activity in the Gremio, his threat, while wearing a gun, of physical violence
to Landron, and his refusal to protect the latter against other threats, his state-
ment that he would "get rid" of "saboteurs" in the editorial department "the
quickest way," his tirade against Fernandez for inquiring about a union-referen-
dum card on company time, and his declaration to reporter Soto that the
Gremio was composed of "bad" people and he would "end" it even if he had to
physically "fight" them and there would be a "tragedy" in the plant; (c) by
' The supervisor above referred to is F. Gonzalez Alberti.
81 Antonio Calderon testified that he refused to sign the letter and that thereafter Diaz
called him to his desk where he finally signed the original in pencil ; that a few minutes
thereafter, Diaz again called him and Calderon at his request, using Diaz' pen, signed in ink
over his penciled signature and also signed a copy of the letter. Ismael Fernandez, who
signed his name after adding "under protest" and whose name was penciled out by Durant,
hereinafter referred to, testified that he saw the letter on Diaz' desk. Diaz testified that
he first heard of this letter at the hearing. He denied that he "forced" Calderon to sign.
The original letter clearly shows Calderon's signature over the penciled name. I credit the
above testimony of Calderon and Fernandez.
80 Olmo testified that Burgos showed him the letter and asked him to sign it. Burgos
testified that in March he did not know of the existence of this letter and denied he
requested Olmo to sign. In view of Burgos' other acts of interference, heretofore found,
I do not credit his denial.
1820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subdirector and Executive Editor Ricci's warning that Gremio activity bs
Miranda might cost him his job, his statement to Landron to leave the Union
as Ayuso would "destroy " it,_and his later refusal to protect Landron against
the insults and threats of physical violence by a relative of Ayuso's because
Landron did not reject the Union , and his warning to Ismael Fernandez to dis-
continue his union activity or he would be dismissed; (d) by City Editor Diaz'
questioning Father Ramos to ascertain his attitude toward the Gremio, his
questioning of Colmenares about his membership in the Gremio , and his effort
to have Colmenares leave that organization and join the Association of News-
papermen , his questioning of Deliz and disparagement of the Gremio , his at-
tempt to ween Soto away from the Gremio , and his questioning of and disparage-
ment of - the Gremio personnel to Calderon and his direction to the latter to so
mark his .ballot in the representation election that it could be readily identifiable ;
(e) by Chief of Correspondents Burgos' attempt to have Landron abandon the
Gremio because it consisted of "Communists ," his criticism of Father Ramos for
mixing with a "group of Communists ," his questioning of Vera about his union
membership , and his critical attitude toward Calderon for soliciting on behalf
of the Union ; (f) and by Chief Photographer Circuns' interfering with Olmo's
referendum card and his request that Olmo turn union informer ; has inter-
fered with , restrained , and coerced its employees in the exercise of the rights
guaranteed to them in Section 7 of the Act , and in violation of Section 8 (a) (1)
thereof.
C. Discrimination
1. Severo Ramos Alancastro
Father Ramos, who apparently some years before had retired from his duties
as a priest to conduct a Catholic magazine , began to work for the Respondent,
as a reporter in 1945. In August or September 1948, he was assigned to editing
translations from English into Spanish in the feature section of the paper and
his salary was increased from $150 to $175 a month 37 He continued in his editing
work in the feature section until his discharge on March 4, 1949.
Although Ramos was questioned by Diaz as to the contents of his prepared
but undelivered speech for the February 5 Circulo meeting, was criticized when
he challenged Burgos' characterization of the members of the Gremio as "Com-
munists," and described himself as a "well known" organizer for the Gremio,
the record fails to disclose any activity or leadership for the Union on his part
other than the above two incidents.
On March 4 while working at his desk , Ramos received the following letter
from Ayuso :
DEAR FRIEND RAMOS :
The critical situation being faced by newspaper enterprizes in all parts
has unfortunately reached our paper, causing a great decrease in our earn-
ings from advertisements , and were it not because of our great circulation,
it would be impossible for us to continue in existence.
This decree in our ingresses is so that in order to continue existing and
take care of our obligations , we are compelled to make great economies in
our structure . Much to our regret, for this reason we are compelled to
3 7 Diaz' testimony , corroborated by Ayuso , is credited , that as a reporter Ramos' stories
were "non-objective" and "politically colored, and for that reason he was transferred to
the editing work.
EDITORIAL "EL IMPARCIAL" INC .. 1821
dispense with your services and to this effect have distributed your work
between various employees working here.
Needless to say how sad I feel in writing you these short lines. But I
get comfort from the faith that all good christians have that soon things
will come back to normal, and if by then you are available, I will make use
of your services again. You can rest assured that we will not hesitate to
call you again, insofar as you have always behaved correctly.
We enclosed your check up till today and a month additional pay.
Please deliver the material under your custody to me personally in order
that I can make the corresponding distribution between the rest of the per-
sonnel.
Yours very truly,
Upon receipt of this letter, Ramos finished his work for the day and then
went to Ayuso stating that he had done good work and had taken no .time off.
Ayuso reiterated that, the reason for his release was as stated in the letter, and
that he would give Ramos an opportunity to work on "El Graffico," a daily news-
paper the Respondent was preparing to publish.
No one was employed to replace Ramos and his editing duties were divided
between Ricci, Benitez, editorial writer Miranda, and copyreader Samuel
Medina. The record discloses without dispute that in the first 5 months of 1949
the Respondent's revenue from advertising declined substantially compared with
revenue received from the same source for the previous year. So far as the
record discloses, no other employee was released during this period because of
the falling off of the paper's principal source of revenue.
There can be no doubt from this record that the Respondent suspected that
Ramos was at least favorably disposed toward the Union, in view of his refusal
to enlighten Diaz as to the nature of his February prepared speech and his ob-
jection to Burgos' characterization of the Gremio leaders. Although, as herein
otherwise found, both Ayuso and Ricci had intimated prior to March 4 that
activity in the Gremio would endanger employees jobs, I am unable to find from
this record that Ramos was discriminatorily discharged because of a suspicion
he favored the Gremio, especially, where as here appears economic necessity
required some reduction in the overhead. While there is no evidence of any
other reduction in the staff because of the revenue drop, it does not appear that
Respondent proceeded on the theory that a temporary reduction in force was
indicated. What it did was to abolish the job Ramos had been doing and dis-
tribute the work among supervisors and other employees. I therefore find
upon the preponderance of the credible testimony that Ramos was released from
employment for economic reasons.
88 Ramos testified that "after the Gremio was formed" Diaz told him that Ayuso was
"displeased with him." Although the record does not clearly show the time when this
statement was made, the implication in Ramos' testimony is that it took place in early
February 1949, about the time when Diaz asked Ramos about his speech. Diaz admitted
telling Ramos that Ayuso was "displeased with his work," but fixed the time of this state-
ment as in 1948 when Ramos was a reporter under his supervision. As there is discrepancy
not only in time but also whether Ayuso was "displeased " with Ramos or with his "work,"
I am unable to find as a fact that the statement was made by Diaz after the Gremio was
organized. Moreover, even accepting Ramos' version as to time and wording, and assuming
that Diaz meant that Ayuso was displeased with Ramos because of the speech incident and
the Gremio discussion with Burgos , there would still remain only Respondent 's suspicion
(unfortified by the usual union activity) that Ramos was favorably disposed toward the
Union.
1822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As above appears, Ayuso told Ramos at the time of the latter's discharge that
when conditions returned to normal, he would reemploy him if he was "available."-
On April 21, Ramos made written application for work with the Respondent.
In June, Ricci wrote Ramos to call at the plant, but the letter was never delivered
to Ramos due to a change in the latter's address. However, through an ac-
quaintance Ramos heard that Ricci had been trying to reach him and called at
the plant in July. At that time, according to Ricci, he offered Ramos work on
"El Graffico" similar to what he last had been doing, and told him to report on
July 31 or August 1; that Ramos stated that he was working days on a project
of his own ; that he would try to rearrange his schedule so that he could take the
day position and would let Ricci know, but that Ramos never notified him or
reported for work.
It is Ramos' testimony that he did not talk to Ricci until sometime in August
when the latter stated that "he would do his best" to get Ramos a job on "El
Graffico," and would make out a schedule of hours of work for Ramos and then
advise the latter of "his decision," but that he never beard from Ricci and did,
not return to the plant. Ramos further testified that during the same discus-
sion he told Ricci he would insist on remaining active in the Guild
In resolving the above conflict, the circumstance that Ramos admittedly was
engaged in his own enterprise of publishing a magazine must be considered. It
seems to me under the circumstances more probable that any "schedule of hours"
discussed between them would pertain to Ramos' outside activity rather than
his hours of work for the Respondent, the schedule of which, no doubt, was
already known to Ricci. I, therefore, find that in July Ramos was offered an op-
portunity to work on "El Graffico" starting about August 1, but that he did not
thereafter report for work ; 3s and that he was not refused reinstatement because
of affiliation or activity for or on behalf of the union.
2. Virgilio Medina Deliz
Deliz started to work for the Respondent as a reporter about November 11,
1946. As a member of the Circulo, he signed a union-referendum card in Feb -
ruary 1949, but, so far as the record discloses, was not active in the campaign
for the Union. The Respondent, however, knew that be was a member thereof
as a result of Diaz questioning Deliz shortly after the latter signed the referen-
dum card, as heretofore found.
On March 13, 1949, Deliz wrote a letter to Ricci resigning from his position,
with the Respondent, the body of which follows :
Sim:
Due to the fact that I will have to leave town shortly,'I hereby notify
you of my irrevocable determination of. resigning my position as editor-
reporter in your paper, which position I have held uninterruptedly since
Nov. 10, 1946.
I take this opportunity to indicate to you not to consider the undersigned
as one of the petitioners in case any guild composed of newspapermen should
include my name when asking for a raise for persons working or who have
worked in this corporation during the last 2 years. Even though as a
worker I am identified in general terms with the rights of the organized
29 Even crediting Ramos' version of the conversation in July. it appears that Ricci sent
for Ramos and told the latter that he was trying to get him a job, but that there were
details which he would advise Ramos about later. The fact that he did not hear from
Ricci thereafter did not entirely excuse Ramos from investigatibg further, if he was really
interested. Nor, under the circumstances herein detailed, would Ramos' gratuitous comment
to Ricci about his future Gremio activities affect the findings herein.
EDITORIAL "EL IMPARCIAL" INC . 1823
worker, I do not think it is opportune to ask for a raise for the editors of
newspapers at this time precisely when all cooperative and industrial insti-
tutions are participating in the natural economic unbalanced situation pre-
vailing as a result of the economic-industrial abnormality which resulted
from the last war.
Thanking you for the great consideration you always had for me whenever
we discussed matters relating to my duties in your paper,
The resignation letter, it will be noted, states specifically that Deliz was
resigning because he had to "leave town," 90 and thanks Ricci for the "considera-
tion" always shown him in his "duties" as a reporter. There is no suggestion
therein that he was resigning under protest due to pressure exerted by manage-
ment on him because of his union affiliations or otherwise. True, Deliz states
therein that he is "identified" with the organized workers, but this is mentioned
apparently only for the purpose of explaining that he regarded any request
at that time for a• pay increase (usually one of the prime objectives of organizing)
as inopportune.
Although at the time he left the Respondent, Deliz made no protest, orally or in
writing, that he was being forced to resign his job, he testified at the hearing
that the "real reason" for his leaving was the constant "pressure' 14, and criticiser
of his reporting. which started only after management became aware he favored
the Gremio. The record does not support Deliz' contention that there had been
no criticism of his work prior to the time he joined the Union. I find on a
preponderance of the credible testimony that, at the most, Deliz was a mediocre
reporter and that there had been criticism of his work both as to manner of
presentation and accuracy as to facts before the Gremio developed. In fact,
the record shows that in January 1949, he was severely criticized because one
story he wrote resulted in a libel suit against the Respondent'
I find, contrary to the allegations in the complaint, that on March 13, 1949, Deliz
voluntarily left his employment with the Respondent. ,
3. Graciany Miranda Archilla
Ricci, who had been managing editor of "El Mundo" with Miranda under
him as editorialist, hired the latter as editorial writer for "El Imparcial" shortly
after Ricci came to the Respondent as executive editor in 1948. Miranda was
one of the founders of the Circulo in 1947. While there is some evidence in the
record that he.represented to the Respondent that he did not favor the Circulo
changing intd a union, I find that, although in February 1949, he refused to
continue as president of the Circulo, after having been warned, as hereinabove
found, by both Ayuso and Ricci not to participate in the organization of the
Gremio, he continued as a member of the Circulo and actively supported the
successful unionization of that organization, and that the Respondent. was well
aware of his activity in, this respect.
40 There is credible testimony that Deliz at that time owned a barber shop in Isabella,
an inland town, and that he told Diaz that he was resigning because he wanted to return'
to Isabella.
41 Deliz rather vaguely testified that shortly before he resigned , he heard Ayuso say in the
editorial room that he "felt like throwing some people downstairs" and that he did not'
"want any traitors there , only loyal people." Deliz did not testify this alleged outburst
was directed at him. I credit Ayuso's denial of this- generalization.
41 At the time of the hearing , the libel suit. had been tried, resulting in a verdict for the
defendant , "El Imparcial."
1824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 10 , when the union activity was at its peak in the plant , Miranda
received the following memorandum from Ayuso :
DEAR MR. MIRANDA ARCHILLA :
I have been informed that on repeated occasions you have interrupted your
work in order to discuss or talk about matters which have nothing to do
with the paper nor with your work as an employee of this organization.
I want to inform you firmly that you should abstain in the future from
interrupting your work in order to talk with other employees or persons
outside this paper, regarding matters which have nothing to do with your
work for which you are being paid by this organization.
The same day , Miranda promptly answered Ayuso's memorandum as follows :
DISTINGUISHED DIRECTOR:
I acknowledge receipt of your memorandum of March 10, 1949.
The contents of the first paragraph of your memorandum compel me to
.express to you that my sense of responsibility in the fulfillment of my
duties don 't permit me to act in the manner which you alleged to have been
informed.
I take the liberty of informing you that at no moment have I left my
work in order to carry on conversations with other employees or persons
outside this office regarding matters not pertaining to my functions.
It is my belief that your good faith is, being heavily taxed.
The same day that he received the above memorandum from Director Ayuso,
Miranda received the.following from Hector Cintron Ayuso , the plant manager:
MEMORANDUM TO MR. GRACIANY MIRANDA ARCHILLA
I want to inform you that starting today, March 10, 1949 your working
hours are as follows :
Sunday-8: 15 AM to 12 Noon
Monday to Friday-8: 15 AM to 12 Noon
1: 30 PM to 5: 00 PM
This schedule will not be altered and you cannot work more than 40
hours a week , unless you receive a written order from the undersigned.
Please sign the copy of this memorandum which is attached as proof
that you have read same and are in agreement with same.
The next day , the plant manager, by another memorandum , directed Miranda
to start that day punching a time card when reporting to or leaving the office.
Miranda thereafter complied with both instructions . It is alleged in effect in
the complaint and denied in the answer that Miranda was being harassed with
vexatious memoranda , his working hours changed, and the time card punching
requirement imposed, because of his activities for the Gremio.
Director Ayuso's letter to his editorial writer directing him in effect to desist
from talking about matters having "nothing to do" with his work was clearly
directed at Miranda ' s union activity, and amounted to an order to refrain from
union solicitation on company time ( with no showing that such solicitation was
actually interfering with the editorial department work ) while at the same
time management was actively propagandizing against the Union, and consti-
tuted interference as heretofore found. I am not, however , convinced that the.
two directives from the plant manager were issued because of union activity.
As a matter of fact the March 10 memorandum actually reduced his work
hours slightly, and eliminated night and Sunday afternoon work, he had been
doing. It is true that Miranda as editorial writer had never before been re-
EDITORIAL "EL IMPARCIAL" INTc. 1825
quired to punch a time clock, but the record discloses that on March 30, 1949,
after his discharge, as hereinafter appears, he filed a claim against the Re-
spondent for overtime work under the Fair Labor Standards Act. It is
Plant Manager Hector Cintron Ayuso's testimony that he issued the instruc-
tions because he had information that Miranda proposed to file a claim for over-
time."3 Under the circumstances, I find that these written directives did not
constitute interference or discrimination because of union activity. .
On March 15, 1.949, Miranda was discharged by the Respondent and has not
since been reemployed. The General Counsel alleges and the Respondent denies
that the discharge was discriminatory, the Respondent affirmatively alleging
that Miranda was discharged because of "lack of cooperation" and "unexplained"
failure to "prepare" editorials.
In September 1948, Miranda wrote, and "El Imparcial" published, an edi-
torial criticizing a housing project known as Hyde Park development because of
flood damage to some of the property therein. Subsequently, because of com-
plaint by one of the officers of the development, Respondent published what
Ayuso described as a "rectification" of portions of the editorial. Ayuso testi-
fied that he criticized Executive Editor Ricci because of this editorial, but ad-
mitted that he said nothing to Miranda concerning it. Ricci did not testify con-
cerning the editorial, but stated that Miranda was a "good editorialist" and in 1948
always wrote his editorials as they had previously been discussed between them.
Miranda's testimony is credited that the editorial regarding the Hyde Park devel-
opment was approved . before publication by Benitez, Ricci's assistant and
Miranda's immediate supervisor. There is no other testimony in the record con-
cerning criticism of any of Miranda's 1948 editorials. I find that Miranda
received no criticism from management concerning any of his editorials or other
work during the portion of the year 1948 that he worked for the Respondent.
It is Ricci's testimony that the first incident of "uncooperative" attitude on
Miranda's part developed in the month of January 1949 in connection with a
"political" editorial, the subject of which Ricci was unable to recall ; that not
liking Miranda's "approach," he rewrote the editorial and the next day Miranda
"objected" saying that in the future when changes were made in his editorials,
the original editorial should be returned to him and not destroyed. Lacking any
further explanation in the record, I am unable to find any uncooperativeness on
Miranda's part because of this January incident.
About March 8, Miranda wrote an editorial entitled "Skimmed Milk and
Fraud." The subject had been suggested by Benitez, who approved the editorial
as written. The matter of selling skimmed milk was at the time a highly con-
troversial subject in the Island, and Ayuso considered the editorial " too aggres-
sive." He penciled some suggested changes thereon and Benitez instructed
Miranda to rewrite the editorial to conform. Miranda complied with this di-
rective." Following Ricci's return home from the United States about this time,
43 Several weeks thereafter Miranda did file a claim for overtime.
1" There is some testimony in the record which carries with it the implication that
the skimmed milk editorial as ordered corrected was not in fact so corrected by Miranda.
As has been heretofore found, Benitez, the assistant executive editor at that time, was
not a witness at the hearing , but Chief of Information Diaz and copy reader Medina
both testified that they were present when Benitez gave to Miranda the Ayuso penciled
instructions with directions to rewrite the editorial, and Miranda protested and threatened
to resign . Neither Ricci, Diaz, Medina; nor any witness testified that this editorial as
finally published failed to include the Ayuso changes therein. Miranda testified that
he rewrote the editorial as requested and specifically denied that he "objected" to doing so.
I find that , while Miranda may have at the time voiced some criticism of the suggested
changes, he changed the editorial as directed.
1826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after a month 's absence , he had several talks with Miranda concerning the latter's
work.
According to Miranda, during these talks, he told Ricci that during the
latter's absence he had always discussed proposed editorials either with Ayuso
or Benitez in order to "adjust" himself to the "standards of the paper," but
he felt that he was being persecuted by Ayuso; that Ricci stated to him that
Ayuso had "beastial reactions" and his attitude toward Miranda was due to
the latter's activity in organizing the Gremio ; that on March 15, Ricci sent
for him and stated that Ayuso "insisted" in his aggressive attitude toward
Miranda, and he replied that he felt no animosity toward Ayuso and offered to
write his editorials at home ; that Ricci would not agree to such an arrange-
ment and asked Miranda to resign as he [Ricci] was in a very difficult position ;
that when he refused to resign, Ricci reached in his desk drawer and handed
Miranda a letter of discharge, together with a check for his salary to date; and
that he then told Ricci he did not like the statements in the discharge letter and
would answer it.
Ricci denied that he described Ayuso as having "beastial reactions," but did
not specifically deny the other statements of Miranda. He admitted that Mi-
randa claimed that he was being persecuted because of the Union, and testified
that Miranda offered to prove to him that he had resigned from the Union.
He testified that on his return to the Island, Miranda came to him and requested
that he be relieved from writing editorials stating that he could not have Ayuso,
who was not a writer, "correcting them" ; that he reminded Miranda the latter
had not objected in the past to corrections or alterations Ricci had made, and
told Miranda to forget "his animosity" toward Ayuso, but that the latter stated
he would resign rather than have Ayuso edit his writings ; that the next day
following this first talk, Miranda did not turn in any editorial and he had to
_prepare one for the paper late that night, and when he asked Miranda the
reason he had prepared no editorial, the latter replied (1) he had forgotten
about it, and (2) he was afraid it would be rejected; that Miranda's editorial
on the succeeding day did not have the "approach" he and Miranda had dis-
cussed and agreed upon that morning, and Ricci had to rewrite it. Ricci also
testified that the following morning, Sunday, March 14, Miranda failed to re-
port for work claiming illness, but that Ricci saw Miranda that noon passing
near the plant in a public bus ; and that on Monday, he told Miranda his "use-
fulness" had ended and discharged him. To assist in resolving the above con-
flicts, I turn to the letters of both Ricci and Miranda wrote concerning the matter
at the time
Ricci's discharge letter to Miranda dated March 15, 1949, reads as follows :
DEAR FELLOW WORKER:
As a result of our conversation of yesterday in which we discussed the
various incidents which have occurred in this office in relation to the.per-.
formance of your duties in the delicate position of absolute confidence as
editorialist of this paper, and having you said [sic] that you would con-
sider humiliating to your condition as writer, adjusting yourself to the
standards established for the best organization of this enterprise and the
direction of the paper, we are obliged to notify you of the resolution of
the General Direction of this paper of dispensing with your services starting
today.
EDITORIAL " EL IMPARCIAL" INC . 1827
Miranda's reply thereto dated March 16 is as follows :
SIR :
I make reference to your letter of discharge of today, enclosing a check
No. 4430 against the Banco Popular de Puerto Rico in the amount of $125.27,
in payment of my salary for the first 15 days of March, after making certain
discounts.
You and I discussed amply the incidents which the Director of El
Imparcial, Mr. Antonio Ayuso Valdivieso, has provoked in this office be-
cause of the establishment of the Gremio de Periodistas Puertorriquenos
and because we took the matter over to the National Labor Relations Board,
with the purpose, among other things, of negotiating and signing a col-.
lective bargaining agreement and the promulgation of a minimum wage
decree.
At no moment during our conversation did I indicate that I considered
a humiliation to my condition as a writer to adjust myself to the standards
established for the best organization of this organization. I told him, and
so I reaffirm, that in this office I have been submitted to a vile persecution,
without any other reason, than the fact that I am the founder of the
Press Circle, which is now the Gremio de Periodistas Puertorriquenos. I
added that I had been submitted to the exigency of punching a time card,
in accordance with memorandum I sent to the Administrator of El Im-
parcial Hector Cintron Ayuso on March 11, 1949.
I regret rectifying a fellow-worker, and take this opportunity to offer
you the loyalty of a man with a clear conscience.'
It is noted that Ricci's letter clearly indicates that Ayuso ordered the discharge
because Miranda had failed to adjust himself to the standards of the paper, and
that there is no mention therein of Miranda's failure to report for work to
prepare material for publication. It is also noted that in Miranda's reply to
Ricci, he specifically denies ever having stated that he could not conform to
the paper's standards, and states in effect that the conversations between Ricci
and Miranda were confined to discussion of his complaints of persecution be-
cause of union activity.
Miranda's reply, denying and repudiating the statement that he did not con-
form to the editorial standards of the paper, was handed to Ricci on the day it
was written. Neither Ricci nor, any of the Respondent's officers answered it
disputing the contents. I am satisfied that Miranda's letter, written at the
time, more accurately sets forth the substance of the various conversations than
•Ricci's later testified version thereof. I, therefore, reject Ricci's testimony
.that Miranda neglected his duties or failed to "approach" an editorial as
directed. I further find that Miranda conformed to the editorial policy of
"El Imparcial" in his writings, and that he was discharged and has not since
been reinstated because of his activity for the Gremio.45
15 Even if it be assumed that Director Ayuso was convinced, as a result of Miranda's
expressed resentment because Ayuso corrected the skimmed milk editorial, that Miranda
could not in the future be depended upon to follow editorial policy, that conviction was
dissipated at the time of the discharge by Miranda's written statement to the contrary.
,Nevertheless, Ayuso, as lie testified, never discussed Miranda's discharge with him.
1828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Orlando Vera
Vera first came to work for the Respondent on October 15, 1948, as a pro-
bationary employee. Before his 3 months' probationary period was completed,
he resigned his position on December 31, to enroll for the second semester at
the University of Puerto Rico. He returned to the Respondent on January 15
following as a part-time sports writer working from 8: 30 a. m. to 12 m. and
1: 30 to 5 p. m. on Tuesdays, Thursdays, and Sundays. On March 5, he was
notified that his hours for the 3 days each week for the rest of the month
would be 8: 15 a. m. to 12 m. and 1: 30 to 5: 45 p. m. On Ricci's return to the
Island, Vera complained to him about the increase in his hours of work, and
Ricci explained that the department was being reorganized in preparation for
the intended publication of "El Graffico," and that Vera would, therefore, be
required to work every evening or resign. The latter refused to agree to such
an arrangement claiming he had been hired only to work in day hours 3 days a
week, and resigned on March 15.
I find that the Respondent was aware that Vera was a member of the Circulo,
as a result of his affirmative response to Burgos' questioning on March 8, as
heretofore found. It could probably be inferred, in view of the Respondent's
general antiunion attitude, and absent any other reasonable explanation, that,
because of Vera's Circulo membership, Respondent required him to work ad-
ditional hours knowing that it would interfere with his studies at the university.
But no such inference can be drawn from this record. True, Vera was hired
for part-time work on January 15 after it was known that he had returned to
the university, but his hours of work at the plant were first increased on March
5 before it was known that he joined the Circulo. Furthermore, the Respond-
ent's testimony that the increased hours and the later night work was neces-
sary for business reasons has not been rebutted; and it is a fact that the
Respondent started the publication of the additional paper, "El Graffico," the
following summer. I find, therefore, contrary to the allegations in the com-
plaint, that the Respondent has not discriminated against Vera in the hire and
tenure of his employment, to discourage membership in the Union.
5. Francisco J. Colmenares
Colmenares worked for the. Respondent as a photographer beginning in 1943.
In July 1947, he was discharged for selling prints of wedding pictures he had
taken for the paper- in violation of a rule. He then moved to New York City
with his family, but in January 1948 he wrote his former supervisor, Director of
Photographers Francisco Circuns, requesting reinstatement adding, "if I have
any debt, I will pay same. . . ." He was reinstated to his old position with
the Respondent in the summer of 1948, but apparently nothing was said at that
time about the $15 he had received previously for the unauthorized sale of the
wedding pictures.
Colmenares joined the Circulo in February 1949, signed a referendum card,
and campaigned actively for the Gremio. As has been heretofore found, Diaz,
in February, sought to have him abandon the Circulo and join the Association
of Newspapermen.
On March 15, 1949, Colmenares received the 'following letter from Manager
Hector Cintron Ayuso :
SIR:
The $15.00 being discounted from your check is to cover the value of a
set of pictures belonging to us, which without any authority, you sold to the
EDITORIAL "EL IMPARCIAL" INC . 1829
Administrator of the Yacht Club in San Juan, on July 12, 1947, and which
amount of money you illegally kept. At that time you were discharged for
having committed this act.
Upon making this discount, we want to express clearly that this pious
act on our part should not be interpreted by you nor any other employee as
if this administration agrees with the ones who break our administrative
rules, and less with the ones who violate the well known dispositions of the
Penal Code, as happens in this case.
I want to warn you that any other similar act on your part will not be
forgiven.
The next afternoon, March 16, Colmenares was accused of taking a $5 bill
Circuns claimed to have missed from his desk. He denied the charge and pro-
duced his pocketbook to corroborate his denial. Burgos then asked Colmenares
to look in his pants pocket and Colmenares produced a $5 bill which he claimed
to have found in the photographer's laboratory, and handed it to Plant Manager
Ayuso.46 The plant manager comparing the numbers on this bill with numbers on
a paper found them to be identical. Colmenares was then told that if he re-
signed he would not be prosecuted for taking the money. Colmenares declared
at the time that it was a "frame-up" because he belonged to the Gremio, but
nevertheless, the same day, he presented the following written resignation to
Circuns :
SIR:
Today, March 16th about 2 PM while I was identifying some pictures
taken by me, I found a $5 bill on a chair of the Dept. of Photography, which
I handed over to the Administrator the same day upon his request. He said
you had been missing that money, and Mr. Burgos said he saw me when I
found it.
As a bad interpretation has been given to this matter, a disagreeable act
against my person, on such attitude, I want that my resignation be accepted
as an employee of this Company.
The same day, Colmenares received a formal letter discharging him signed
by the plant manager, as follows :
Sre:
This is to inform you that you have been discharged as of today as•
photographer of El Imparcial for the following reasons :
In view that money and objects have been disappearing from this news-
paper continuously, this Administration decided to take steps to find out the
person or persons who were taking the money and objects they found and
using them for their own benefit. Taking this in consideration, today,
March 16th, we left a $5.00 bill, duly identified in the Dept. of Photography,
and waited to see who was going to take it. And it was not a surprise to us,
as we had suspected of you, when we saw that you took the money and were
leaving the Imparcial Building, when Mr. Bernard stopped you and took
you to my office to be searched. You know that after. you were detained in
my office, you tried to run away with the camera and you were detained
again by Mr. Bernard and taken to my office. When I questioned you about
46 It is Colmenares' testimony that in the noon hour while working alone in the labora-
tory he found the bill on the floor underneath the desk used by all the photographers,
and at that time put in it his pants pocket. It is noted, however, that in his letter of
resignation , hereafter detailed, he stated that he found the money on a chair.
1830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the money, in the presence of Messrs. Bernard, Burgos and Circuns, you
stated that you had no money, showing your wallet containing other money,
but you well know that after Mr. Burgos insisted on your turning over the
left pocket of your pants, you yourself took out the bill which we had al-
ready identified ; and you said : "yes, but this bill is mine", and later you
admitted, when you confronted the truth, that you had taken same.
You know that on different occasions you had been pardoned for com-
mitting acts contrary to the norms of this Administration, but the time has
come to clean this place and get rid of undesirable persons like you. There-
fore, we are putting you out of this organization, besides the judicial action
which is pending.
Bernard, the plant watchman, did not testify, but Colmenares admitted that
as he was about to leave the building on an assignment, be was stopped by the
watchman and sent to the plant manager. There is no testimony in the record
to support the inference in the plant manager's discharge letter that Colmenares
was about to leave the Respondent's plant permanently when stopped by the
watchman. I find that Colmenares at the time was about to leave the building
on another assignment in the course of his duties, but that he was doing so with
no intention of reporting the $5 bill that he had found in the photographic
department.
Certainly the circumstances surrounding Colmenares' discharge raise ques-
tions as to the Respondent's real motive therein. On the one hand, the Respond-
ent, opposing the Union, knew Colmenares was a member thereof and the
marked bill was placed where it was known that Colmenares would be working
alone. The day before, $15 had been deducted from his pay check for an in-
cident that happened almost 2 years before, and which incident had apparently
been forgiven when he was rehired in July 1948. All these things lend support
to Colmenares' statement that he was "framed" by the Respondent because of
the Union in order to eliminate him as an employee.
On the other hand, there is credible testimony that during this period there
had been complaints to management from employees in the various sections of
the editorial department that they had missed money while at work. The $15
deduction from Colmenares' pay on March 15 clearly discloses that the Re
spondent had not forgotten the 1947 incident when Colmenares profited from
an unauthorized sale of Respondent's pictures. His honesty was, therefore,
suspect in 1949. In any event, he failed in the honesty test and took the money
that did not belong to him-not admitting it until confronted with the proof.
There is nothing in the law that I know of that requires an employer to
retain a dishonest employee. Although the timing here is such as to raise
suspicions. I cannot find as a fact, or reasonably infer, in the circumstances
that (1) absent the Union, management would not have inflicted such a test upon
a suspected employee, or (2) if by chance a nonunion employee had picked
tip the money, he would not also have been discharged. In my judgment, the
evidence will not support a finding that Colmenares was discriminatorily dis -
charged because he joined or assisted the Union, and I will recommend that
such allegation in the complaint be dismissed.
6. Hector Landron Ubinas
Landron began working for the Respondent as a translator about May 1948.
He was a member of the Circulo, signed a Gremio-referendum card, and was
active in securing other signers. As heretofore found, about the time of the;
EDITORIAL "EL IMPARCIAL" INC . 1831
February 5 organization meeting, Burgos advised him not to become involved
with the Gremio as some of its members were "Communists." In March, Ricci.
told Landron to "get out" of the Gremio as Ayuso would destroy it, and Ayuso
threatened to shoot him. Landron was also present in the editorial room later ,
tha month when Ayuso upbraided Fernandez and invited him "outside."
Because of the above incidents, according to Landron's credited testimony, he
sent Ricci a registered letter dated March 22, as follows :
DEAR SIR :
Since the beginning of this month there have been drastic changes in the
behaviour of the executive branch of this organization.
The assignment of work has increased with exaggeration, administrative
criticism has increased, verbal orders are repeated constantly, some fellow-
workers have been suspended without justified cause, fellow-workers are
transferred from one section to another using unreasonable excuses, repri-
mands because of worthless reasons are as frequent as unjust a0d cruel,
and finally, the personal attitude and words pronounced by our Director
Mr. Ayuso all over the office, all this Don Pepe has created a nervous'
tension and spiritual missery-which I understand impedes greatly the
efficient. functioning of this progressive enterprise.
Judging by the comments and my personal observations, the only and
exclusive reason for all this, is the creation of the Gremio de Periodistas
Puertorriquenos and the open and systematc opposition that it is receiving
from the executives of the paper.
The object of this letter is to ratify to you what we have already ex-
pressed, that the Press Circle has been inspired with the purpose of en-
couraging constructive relations between the company and its employees
thru the discussion and signing of a collective agreement constituting in
fact and in law the government of conduct between the employer and the.
workers.
For this reason , and because I always desire the progress of this organi-
zation, I take the liberty of suggesting in the name of the warm friendship
which has existed between us, that we get back to the normal relations of
friendship and consideration which prevailed before this Gremio was
formed here in El Imparcial.
I take this opportunity to tell you that I am sick. I have a high fever of
unknown origin. I will try to see the doctor this afternoon. Please
excuse me from work tomorrow in case I continue feeling sick.
Receiving no reply to this written protest, Landron, after 2 or 3 days had
elapsed, inquired of Benitez about the letter, and was informed that Ricci was
"very mad" about the communication.
Landron's undenied testimony is also credited that on the morning of March
29 Gilberto Cintron Ayuso, a relative of Director Ayuso, who formerly worked
at "El Imparcial," came into the editorial room, saluting Landron as he passed
him, and visited with his friend Burgos ; that as Gilberto and Burgos talked,
the latter pointed to different people in the editorial room including Landron ;
that Gilberto, "six feet" and "athletic," then came over to Landron and said, :
So you are one of the members of this Gremio . . . you are nothing but a
bastard and ingrate and all that ; son-of-a-bitch and all that . . I'll see
you outside at twelve o'clock to cut your face... .
Landron testified that he complained to Burgos that the latter had sent
Gilberto to him and Burgos replied "you deserve it, you are nothing but an '
1832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ingrate, an ungrateful person that I brought here," ' and you "pay me" with
"this Gremio" ; that it was nearing the noon hour and as he would have to
leave the plant at that time, Landron sought protection from Ricci telling him
of Gilberto 's threats , but that Ricci replied he had previously warned Landron
to leave the Gremio as there would be a "tragedy " and someone "would get
hurt," and he , therefore , washed his hands of the affair ; that at that moment
Ayuso appeared and Landron appealed to him for help stating that Gilberto
had been "sent by Burgos to slash" his face, whereupon Ayuso replied ;
Well, I told you and I told the other boys to separate from this Gremio.
This is nothing compared to the things that are going to happen soon here.
There is going to be a tragedy here, I'm telling you two or three times, so
be careful . . . I don't want nothing to happen here in the editorial room,
but outside.... That is your affairs and I don't care.
Landron further testified that during the above colloquies , Gilberto remained
in the large editorial room, but then left and went downstairs to the administra-
tion room ; that as 12 o'clock approached Landron was "really nervous" and
again appealed for protection to Ricci in the washroom ; that Ricci told him
he knew it was an " injustice" on Landron as the latter was a "peaceful fellow,"
but Gilberto was angry because of radio attacks on Director Ayuso; that when
he disclaimed responsibility , or even knowledge of these attacks, Ricci replied,
In all these cases , there are victims. The prominent persons don 't suffer
very much, only the low ones . You are a worker here and that is what
happens.
Landron testified that as he came out of the toilet he saw Ayuso , Benitez, and
copyreader Medina together , and Medina suggested that Ayuso go out of the
building with Landron and the others so that Gilberto would not "harm Landron,"
but that Ayuso refused to do so, and Landron left the building with Medina and
Benitez but was not molested . Landron did not return to his job that afternoon
or thereafter . He testified that he phoned Ricci offering to return if "protected"
but that Ricci stated that he only worked at the Respondent's plant and it was
not his business.
Neither Burgos nor Ayuso were questioned about or denied the above testi-
mony of Landron . Ricci admitted that Landron complained to him that he
had been threatened by Gilberto and that he told Landron to "pay no attention
to Gilberto 's verbal threats as he would not carry them out." Ricci denied that
Landron phoned to him that "he was quitting ," but did not specifically deny that
he made the statements attributed to him by Landron. In the light of the entire
record, I credit Landron's testimony , as above set forth.
I find that the Respondent 's failure to give Landron any assurance of pro-
tection from threats of physical violence justified the latter , under the circum-
stances, in refusing to report for work after March 29, and by such failure to
afford protection , supplemented by the intimidatory statements , threats, and
other acts of interference by management itself herein detailed, the Respondent
constructively discharged Landron because of his membership and activities
in the Union.
7. Ismael Fernandez
Fernandez originally came to the Respondent in 1944 as a stenographer for.
Ayuso. After 2 weeks, he was assigned to a reporting position and remained
in that capacity until his discharge , March 31, 1949. During the last 6 months
or more of his incumbency, his work was confined largely to reporting news items
EDITORIAL "EL IMPARCIAL" INC. 1833
in the Criminal Branch of the Insular District Court. He joined the Circulo
at the time of its original organization in 1947, became recording secretary and
member of the board of directors in February 1949, and actively participated in
the transformation of that organization into a Gremio. He not only distributed
and collected referendum cards and authorization petitions, but also secured
wage data to be used by the Circulo as a basis for collective bargaining agree-
ments with the various newspaper enterprises in the Island, including "El
Imparcial."
Most of these activities were known to the Respondent. As heretofore found,
in the early part of March, Executive Editor Ricci told Fernandez Ayuso was well
pleased with his work as a reporter, but that he did not like his activity in the
Gremio, and he would have to quit it or he would be discharged ; and on March 20,
Ayuso upbraided Fernandez for soliciting a fellow employee, called Fernandez
"a liar," stated he did not need "such type," and invited Fernandez "outside"
when the latter, seeking protection as an employee, mentioned a rumored homi-
cide in the editorial department sometime prior thereto.
On March 21, Ricci wrote Fernandez criticizing him because he "had pro-
voked" the above incident with Ayuso by leaving his work to talk to another
employee about the Gremio. He added that management had adopted an impar-
tial attitude towards the employees' right to solicit either for or against the
Union, but that such solicitation should be confined to nonworking hours, and
warned Fernandez against repetition of such an incident. Fernandez answered
this letter on March 23, wherein he stated that the affair had been provoked, not
by him, but by Director Ayuso, as part of a "deliberate attitude" against certain
employees"
About March 27 or 28, a fellow employee in Diaz' presence, passed to Fernan-
dez the letter repudiating the Union, heretofore referred to. Fernandez signed
the letter, "under protest, Ismael Fernandez." A few minutes later, Fernandez
saw the letter on Diaz' desk. Shortly thereafter, translator Durand, heretofore
referred to, having tried unsuccessfully to have Fernandez remove his name from
the letter, by pencil obliterated what the latter had written on the document.
On March 30, Fernandez was peremptorily discharged effective March 31, 1949.
Diaz , Fernandez' immediate supervisor, testified that he was discharged because
be failed to report news items by 11:30 in the morning as he had been instructed
to do. Diaz further testified "there may have been" other reasons for the dis-
charge, but that he knew of none. Director Ayuso testified that Fernandez was
discharged for using the company phone for personal long distance calls.
On the other hand, Ricci testified that he fired Fernandez because, after his
return from New York City in early March, Fernandez did not follow his instruc-
tions relative to reporting court news; that he had told Fernandez that, due
to a shortage of personnel on the editorial staff, he was to report the civil side
of the District Court docket in addition to his other duties, including bringing
daily to Ricci the District Court calendar of cases and reporting Friday divorce
decrees as of that day, but that Fernandez failed to comply with these instruc-
tions ; and that he failed to report at the office daily with the latest news at
11 a. in. and 5 p. in. to meet deadlines for the two editions. Ricci further testi-
fied that he did not consult with Ayuso nor anyone else about the discharge and
.
" In the course of this letter, Fernandez also informed Ricci that he had requested the
bookkeeping department to give him a statement for various personal long distance calls
he had made some time before and that he had been informed the statement would be sent
to him through Ricci.
929979-51-vol. 92-117
1834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that Fernandez ' long distance telephone calls were not considered when
he was discharged.
There is no credible testimony that the employees were informed of any rule
prohibiting the use of the company telephone before March 1949. Fernandez
had used the office phone for personal long distance calls sometime prior to
March 20, when, as heretofore appears, he wrote Ricci he had requested a state-
ment of the charges therefore. I credit Ricci's testimony that the telephone use
did not enter into Fernandez ' discharge.
To properly understand in what way, if any, Fernandez failed to comply with
instructions given him, it is advisable at this point to refer to the instructions
issued earlier in the month, and Fernandez ' reaction thereto. On March 8,
Ricci sent Fernandez a memorandum , and the latter replied thereto the same
day as follows :
MEMORANDUM TO ISMAEL FERNANDEZ, Reporter
During the last six months we have insisted with you to bring to this paper
the calendars of civil and criminal matters pending trial before the District
Court of San Juan.
We have also insisted repeatedly that you bring every day the filings of
civil lawsuits, with a resume of the facts alleged in same.
We want to call your attention to the fact that divorces which have been
settled should be brought the same day in which decree is given. You must
understand that there is no reason for decree which have been granted on
Friday, be published the following Tuesday.
Please return the original of this document duly signed for the files.
I hope you will carry out these instructions immediately.
(s.) JOSE DAVILLA Ricci,
Sub-director.
Informed :
[S] ISMAEL FERNANDEZ.
I have taken due note of this memorandum and want to say that I have
never received the instructions to which it refers. For some months I have
been in charge of the informations for the Section of Criminal matters of the
District Court of San Juan and I was instructed to bring in the monthly
calendar. I explained to Mr. Diaz, Chief of Information. that it will take me
time to copy it, and therefore he would have to give me half of a day or a day
each month just to do that. He relieved me of this obligation and instructed
me to give special attention to the cases pending on the immediate dates, and
so I have been doing. Regarding the civil section, I have never been in charge
of same, neither have I been given instructions to this effect. It is true that
on certain occasions I have been assigned special informations in that section
of the Court, which I have carried out.
Regarding lawsuits, I must say that since yesterday I have been authorized
to cover that section of civil lawsuits, and for this work there was a special
reporter previously, called Llompart and then Aulet-and I am bringing in the
information. Regarding divorces, it has always been the custom, as I have
been able to observed (sic) here, to bring them in on Monday following the
date in which they were settled. Following this custom, and taking in
consideration that I didn't have the instructions referred to in the memoran-
dum, the ones for last Friday, I brought in yesterday Monday and gave the
information to Mr. Carrera Benitez.
On March 10, Ricci wrote another memorandum to Fernandez insisting that he
had personally ordered the latter in 1948 to bring in court calendars f o the office ;
EDITORIAL "EL IMPARCIAL." INC. 1835
that in 1948 instructions had also been issued to report the filing of lawsuits as
well as divorce decrees. He reiterated that the May 8, 1949, instructions be
carried out.
Ricci testified and I find that it was his practice always to give written instruc-
tions to reporters like Fernandez, who were on permanent assignments, and that
no instructions other than the above were given to Fernandez. I find further that
Fernandez complied with these instructions thereafter, excepting only as copying
the calendar of the District Court; and in that respect he explained to Ricci that
such chore would have required monthly from one-half to a full day's extra time,
and that Diaz had relieved him of such obligation.48
Coming now to the March 30 discharge letter, I find that there was no 11
o'clock deadline to be met by the reporters, as Ricci testified and the discharge
letter seems to imply.49 In find further that there was no 5 o'clock deadline to
be met by the reporters as the letter suggests. This narrows the criticism of
Fernandez, as contained in the March 30 letter, to his failure to copy the calendar
of court actions.60 As found above, he was excused from this task because of
the extra time required. In any event, such a delinquency could hardly be
grounds for summary discharge without notice of an old and apparently otherwise-
very competent employee.
Considering the entire record and Fernandez' prominence in the Union as well,
as the various reasons advanced by management for discharge, I am satisfied and
find that the only reason therefore was his activity for and on behalf of the
Union.
8. Porfirio Martinez Olmo
Olmo had worked for the Respondent in the year 1948 as a photographer, but
had been discharged for neglect of duty." However, he was rehired in January
1949, as a staff photographer. He attended the February 5 Circulo meeting but
in his official capacity. A few day later, as heretofore found, Francisco Cir-
cuns, his superior, took his Gremio-referendum card and turned it over to
Director Ayuso; and about the middle of March asked Olmo to report anyone
he saw talking about the Gremio in the plant. When the letter opposing the
Union was circulated in the plant on company time, Circuns signed it at the
request of Burgos:
Although Olmo signed a union-authorization petition and also attended one
Circulo meeting as an individual, there is nothing in the record to warrant an
inference that Respondent suspected that he was a member of or favored the
Union. In fact, Circuns clearly indicated his impression that Olmo was not for
the Union when he requested the latter to turn informant adding, "you are one
of mine! I suspect Torres and Donati [of being union members]." I find,
therefore, that Respondent did not know or suspect Olmo's union membership,
48 Diaz did not deny so qualifying the instructions.
11 In fact Ricci on cross-examination testified that there was no 11 o'clock deadline and
that he asked news be brought in on or before that time so that he could keep the
copyreaders busy.
^° The letter also states that Fernandez' punched card indicated he did not leave the
plant until after 7 p. in. on March 29, but that neither Ricci nor Ayuso, who were there,
saw him at that time. There was no reference to this incident in the testimony and it is
given no weight herein.
61 During a strike at the University of Puerto Rico, Olmo had been assigned to take
pictures of whatever action developed. He stayed around the university grounds for some-
time that day but then left, reporting to the office that "everything was quiet." Sometime
after he left the premises, a disturbance occurred, snaps of which he might have obtained
for the paper if he had remained on the assignment.
1836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that the latter was discharged on April 25, 1949, as the Respondent con-
tends and the evidence, discloses, for negligently spoiling the negative of a
picture of a child contest winner and failing to report such fact in time so that
another picture could be taken for its prompt publication in "El Imparcial."
9. Antonio Arana Soto
Soto began working for the Respondent as a reporter in 19475 and resigned his
position in March 1949. He attended the February 5 Circulo meeting and also
"signed a Gremio-referendum card.
As heretofore found, about the first of March, Diaz told Soto the Gremlo would
not.help Puerto Rico newspapermen, and sought without success to interest him
in the Association of Puerto Rico Newspapermen ; about March 15 Director Ayuso
expressed surprise that Soto belonged to the Gremio, disparaged the membership
of that organization, endeavored to have Soto abandon it, and, wearing a gun,
told Soto that he would "end" the Gremio and there would be a "tragedy." As
the interview closed Ayuso suggested that Soto look for another job..
.Soto's regular working hours were each day except Saturdays, for which he was
paid a salary of $160 a month. However, for about a year or more prior to
,about the first of March 1949, he had been working each Saturday as a watchman
at the plant, answering the telephone, receiving visitors, and securing such news
items as he could by telephone. For each Saturday's work he received overtime
amounting to $15. Shortly after the first of March this overtime work was
permanently transferred to three other reporters, Aulet, Mangual, and Cuebas.
It is alleged in the complaint that Soto's Saturday overtime work was taken
from him because he joined or assisted the Union. The answer on the other
hand alleges that the transfer of this work was an economic move. Diaz testi-
fied that the work was transferred because the paper's revenue had fallen off and
by dividing the Saturday work between the three reporters named, it reduced
the overtime payment. The record discloses, as hereinbefore found, that the
Respondent's principal revenue, from advertising, was less for each of the first
5 months in 1949 than it was for the corresponding period in 1948. Respondent's
payrolls disclose that Aulet, Mangual, and Cuebas each received a considerably
smaller salary than Soto. Moreover, each of these three reporters were members
of the Gremio. It is true that. the record is barren of any evidence that the
Respondent knew of their union affiliation, but I cannot infer that it did not know
or suspect such membership in the circumstances when the Union at the time
was claiming to represent more than a majority of the employees in the editorial
department.
. Although Ayuso made it perfectly clear to Soto he was not interested in con-
tinuing him as an employee, it must be remembered that the transfer of the over-
time work, took place at least a week before this March 15 interview with the
director. Nevertheless, the circumstances create a suspicion that Soto was
penalized because of his failure to relinquish the Union as Diaz had suggested
before the overtime work was taken from him. Balancing this suspicion, how-
ever, against proof that the Saturday work was transferred to other union em-
ployees, and that management thereby saved some money at a time when re-
trenchment was indicated because of lowered income, I cannot say that the
reason given for the transfer is without merit and a subterfuge. I will, there-
fore, recommend that the allegations in the complaint as to Soto be dismissed.
EDITORIAL "EL IMPARCIAL" INC. 1837
10. Nelsie Ramirez de Benero
The complaint as amended at the hearing alleges and the amended answer
denies that the Respondent on or about March 9, 1949, transferred Ramirez
from her position as a reporter in the editorial department to a job in the
circulation department, and changed her hours and conditions of employment
because of her union affiliation, activity, or sympathy.
Benero started to work for Respondent about the end of March 1948. She
was a member of the Circulo and signed a Gremio-referendum card . As hereto-
fore found, about the first of March 1949, she was accused by Diaz of starting
a rumor that all Circulo employees of the Respondent would be discharged.
Although her testimony is not credited that she discussed this accusation with
Burgos, and volunteered the information that she was a member of the Circulo,
I am satisfied, and find from the record as a whole, that the Respondent knew,
or suspected, that Benero, belonged to that organization.
For sometime prior to March 1949, Benero's principal Work was the prepara-
tion of a daily column regarding happenings in various insular government
offices in San Juan. After the election of Governor Munoz Marin, it became
increasingly difficult to secure news for this column other than that contained
in official news releases. About March 9, when criticized by Diaz because her
daily column was "pretty weak," Benero explained her difficulty and suggested
that she be assigned to other work. At Diaz' suggestion she wrote a memo-
randum to that effect to Executive Editor Ricci as follows :
For sometime at La Fortaleza it becomes very difficult to obtain sufficient
news to maintain daily the column La Fortaleza al Dia, which is published
in El Imparcial.
In view of this situation it is my duty to bring the matter to your attention
in order that you may be informed and may adopt those measures that
you deem pertinent.
I would like, if it is possible, that you recommend my transfer to some
other place , preferably to the administration office where I know there is
a vacant position.62
The week following the writing of the above memorandum, Benero accepted
a transfer to the circulation department, and the La Fortaleza column she had
been writing was discontinued. She remained in the circulation department
until May 19, when she resigned rather than accept a transfer to a branch office
of the department located in the metropolitan area but about 2 miles from the
Respondent's plant. There is no evidence that the work at this branch office
was inferior or in any way different than her previous work in the circula-
tion department, although the branch office building-which she described as
a "shack"-may not have been as pleasant to work in as the . general office
building ; nor does it appear that there was any reduction in her pay.
62 It is Benero ' s testimony that the memorandum she signed was written by Diaz in pencil
and then given to Ricci who tore it up in her presence . She refused to admit that the
signature to the typewritten memorandum above quoted was hers although she testified
"apparently it is mine ," and conceded that the contents thereof were substantially the
same as those in the penciled document . However, she also testified that Diaz wrote the
memorandum she signed on a typewriter . In view of these as well as other discrepancies
and inconsistencies, I do not credit Benero ' s testimony in this respet.
1838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the time of the hearing, Benero was working as a reporter for another
San Juan newspaper. Apparently she accepted this reporting position at the
time or shortly after she resigned from Respondent's circulation department.
However, the evidence will not support a finding that her transfer to the circu-
lation department by Respondent was discriminatory, or even that it was
contrary to her desires at the time. She knew her column was not holding up
and had verbally suggested to Ricci, prior to the March 9 memorandum above
quoted, that she be transferred to the administration section of the paper
(which includes the circulation department). I find therefore that the transfer
of Benero to the circulation department in March, and the work assigned to
her thereafter in May 1949, did not constitute a violation by Respondent of
Section 8 (a) (3) of the Act.
D. Refusal to bargain
1. The appropriate unit
The complaint as amended during the hearing alleges that an appropriate
unit consists of the nonsupervisory employees in the editorial news department
with certain exclusions including supervisors. The Respondent in its answer
denies the appropriateness of the unit as originally alleged and as amended,
but it alleges no other unit as appropriate nor did it submit evidence bearing
on this issue. During the hearing, the parties stipulated that telegraphers,
the librarian, and the assistant librarian should be included in the unit. The
unit as finally alleged and with the stipulated inclusions and exclusions is as
follows :
All employees of the editorial and news department, including editorial
writers, staff writeis, rewriters, reporters, copyreaders, translators, photog-
raphers, cartoonists, telegraphers, librarian and assistant librarian, and
the copy boys employed at the Respondent's San Juan plant, but excluding
all production and maintenance employees, bookbinders, proofreaders,.
administrative and executive employees , guards, watchmen , and supervisory
employees.
The Board has found similar units of daily newspaper employees to be appro-
priate.°3 I therefore find that the above-described unit is appropriate for collec-
tive bargaining within the meaning of Section 9 (b) of the Act.
It was stipulated at the hearing that the following named are supervisors in
the editorial department and should be excluded from the unit : Carlos Carrera
Benitez, assistant to Executive Editor Ricci; Francisco Circuns, chief photog-
rapher ; Ramon M. Diaz, city editor ; Petro Julio Burgos, chief of correspondents.
Dispute exists as to whether certain other employees in the editorial depart-
ment are supervisors and should be excluded from the unit. The duties of each
of the five, and recommendations as to them, follow :
Manuel L. Moran is the highest paid cartoonist among three or four other
cartoonists in that section of the editorial department. He did not testify and
is not designated as a supervisor on the payrolls. H. C. Ayuso, the plant man-
ager, denied that Moran had any supervisory authority whatsoever. The record
otherwise discloses that while Moran passed on the drawings of the other car-
toonists, there is no substantial evidence that he had or exercised any other
duties that could be classified as supervisory. In view of the individual nature
63 Brooklyn Citizens, 52 NLRB 673: Worcester Telegram Publishing Company, Inc.,
61 NLRB 1118 ; The Wichita Eagle, 69 NLRB 1270 ; The Register d Tribune Co., 73 NLRB
728; Arizona Times , Inc., 24 LRRM 1388.
EDITORIAL "EL IMPARCIAL" INC. 1839
of the creative work by cartoonists, I find that Moran is not a supervisor and
should be included in the unit.
Fernando Gonzalez Alberti has a full-time job as editor of the Sunday edition
of "El Imparcial." He lays out that edition and assigns and edits the work of
other employees for same. He should be excluded"
Antonio Puigdollers develops negatives when the photographers. are busy
on other jobs. He also makes prints from negatives for commercial work and
is classified as a chemist-photographer. All photographic work is done on
special assignment to the 8 or 10 photographers in that section of the editorial
department, under the direction and supervision of Francisco Circuns. Puig-
dollers did not testify. Although reporter Soto testified that Puigdollers substi-
tuted for eircuns on Sunday, Circuns denied this and testified that when he
was not on duty on Sundays such photographers as worked that day already
were given their assignments the previous Saturday, and in the event of an
emergency on Sunday it was up to the individual photographer available to use
his own judgment. Diaz substantially corroborated this testimony. I find
that Puigdollers was not a supervisor and should be included in the unit.
Luis Felipe Hernandez is classified as sports editor. He lays out the entire
sports section of the paper, using the material that various reporters bring to
him. There is substantial evidence that he supervises and directs the work of
the three or four reporters in his section and has authority to recommend hiring
and firing. I find that he has supervisory status and should be excluded from
the unit.66
Julio C. Gonzalez, receives messages in code and transcribes them. Gonzalez
receives more pay than either of the other two telegraphers (one of whom was
a part-time employee) but had more experience. Although he is classified on
the payroll as chief telegraphist there is no evidence that he supervises or directs
the work of the other two telegraphers. In fact the record discloses that after
the messages have been transcribed as above set forth, they are sent to the
editorial staff and the telegraphers have nothing further to do with them. I
find that Gonzalez is not a supervisor and should be included in the unit.
The following employees listed on the February 28 payroll of the editorial
department are excluded for the reasons appearing after their names :
Juana Ayuso sister of Director Ayuso, and classified as critic and reviewer,
does no work in the editorial offices and has no common interest with editorial
employees.
Gloria E. Barbosa performs secretarial work solely for supervisors and execu-
tives in the editorial department and acts in a confidential capacity to Circuns,
chief of the photographic department, sometimes giving orders and changing
assignments during his absence. Her interests and duties are not similar to
these editorial employees included in the unit."
Julio Rivera is an employee of the insular recreation committee and also
representative in Puerto Rico of the Associated Press. He is not a regular part-
time employee of the Respondent and although classified on the payroll as a
sports reporter , performs no work in the editorial department.
Amparo Taboas is a full-time employee of the insular recreation committee.
Although he earns about $60 a month as a translator for "El Imparcial" (com-
54 A. S. Abbell Co., 81 NLRB 82; Worcester Telegram Publishing Company, Inc., supra.
66 Arizona Times, Inc., supra ; The Brooklyn Citizens, supra; and The Register & Tribune
Company, supra.
56 Wichita Eagle, supra; The Brooklyn Citizens, supra.
1840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pared with salaries ranging from $100 to $200 for full-time translators) he
performs no work at the editorial offices and is not subject to any work schedule.
Felicio Torregrosa is professor of physical education at the University of
Puerto Rico. He is classified as a sports collaborator but never works in the
editorial office and is not subject to any schedule of work.
Juan B. Vergara. is classified also as a sports collaborator. He is a starting
judge of horse racing at a race track and occasionally writes articles for "El
Imparcial' 'about horse racing, but is not subject to any work schedule and earns
much less money than regular reporters.
Israel Santiago Schmidt is a reporter permanently located at Ponce across
the island from San Juan. He performs no work at the editorial office. Amparo
Torres, a photographer also located in Ponce, receives $15 per week, lets. than half
that paid the regular photographers in the editorial offices. Pedro Juan Garcia
is a sports collaborator permanently located in Ponce.
The following employees, not on the February 28 payroll, but appearing on
one or more other later payrolls are also excluded for the reasons hereinafter
appearing:
Antonio Caballero is a temporary employee appearing only on the March 15
payroll as having worked 16 hours. Respondent agreed to exclude him.
Ismael A. Rodriguez is agent at Ponce for distribution of "El Imparcial." His
name appears on the distribution department payroll for February 28. The only
editorial department payroll wherein his name appears is the corrected payroll
for March 15. His services are all at Ponce and he does no work in the editorial
department.
Alejandro Pizarro acts as chauffeur for Director Ayuso and also drives a jeep
for some of the editorial employees. He reports no news and performs no work
in the editorial department.
Jaime Adames Fuentes is agent and correspondent at Caguas. He performs
no work in the editorial department. His name appears on the corrected editorial
payroll of March 15 but is not on the March 31 payroll for that department.
Luis Roserio is a full-time employee of the sports and recreation committee of
the Insular Government. His name is on the corrected editorial department
payroll for March 15 but is not on the payroll of that department for the follow-
ing 2 weeks. Although Roserio is a sports editor, whatever work he renders
Respondent is not under any regular schedule.
Guillermo V. Cintron is a relative of Director Ayuso and editor of a weekly
paper. Although he writes a weekly column for "El Imparcial," he does not work
in the editorial offices and apparently has no work schedule. His name appears
on no payroll, but on March 22 he was included in a list of eligible voters
Respondent submitted to the Board.
This makes a total of 42 employees in the unit.
2. Representation by the Union of a majority in the unit
As a result of the favorable response from newspapermen to the question of
whether they, wanted a union, the board of directors of the Circulo, as above
found, on February 28, 1949, took formal action to obtain recognition for the
Union from all newspaper employers in San Juan, including the Respondent.
The letter of that date to "El Imparcial, Inc." requesting recognition, and in fact
negotiations for a contract, went unanswered, and it is-the Respondent's posi-
tion, as appears from the pleadings as shown at the hearing, that the Union
never represented a majority in the unit.
EDITORIAL "EL IMPARCIAL" INC. 1841
Also, as above found, the Respondent's records disclose that 42 of its employees
were in the unit at or about the time the Union requested recognition. This
number in the unit was not materially decreased or increased thereafter. The
record discloses that 13 of the employees in the unit, between February 20 and
March 16, 1949, signed an authorization petition reading as follows :
WE THE UNDERSIGNED HEREBY AUTHORIZE THE PRESS CIRCLE
(GREMIO DE PERIODISTAS PUERTORRIQUENOS) TO REPRESENT
US IN EVERY EFFORT AND ACTIVITY TO DISCUSS AND SIGN A
COLLECTIVE BARGAINING AGREEMENT WITH EL IMPARCIAL, AND
IN ALL KINDS OF GUILD ACTIVITY BEFORE THE NATIO'NAL AND
INSULAR LABOR RELATIONS BOARD AND THE GOVERNMENT AND
JUSTICE COURTS IN THE CO'UNTRY.
Twenty of the Respondent's employees in the unit attended the February 5
meeting of the Circulo, heretofore discussed, when the union referendum resolu-
tion was unanimously adopted. The General Counsel argues that these 20
employees, having voted for the above resolution, thereby indicated that they
favored the Union, and should be included in counting those favoring the Union.
I will have to reject this reasoning. The fact that a number of people favor
taking a vote on a question is not necessarily an indication of how they will
cast their ballot. However, the record discloses, without dispute, that 13 em-
ployees in the unit, other than those heretofore found to have signed the union
authorizations, all but 2 of whom had attended the February 5 meeting, before
February 28, 1949, returned answers favoring a union on the referendum card
which posed the following question :
DO YOU THINK THAT THE PORTORRICAN NEWSPAPERMEN SHOULD
ORGANIZE O'URSELVES AND FORM A GUILD?
I do not have the benefit of a brief from the Respondent, but at the hearing
it took the position that these referendum cards were of no value for the purpose
of proving union representation. I do not agree with this position of the
Respondent. It is true that the referendum signers do not, in so many words,
say that they wanted the Union to act as their representative in collective bar-
gaining with the Respondent, but in the embryonic period of union formation
especially, formal specific designations for bargaining purposes frequently are
absent. In construing whether a representative has been "designated or
selected," as required by Section 9 (a) of the Act, the Board and the courts
have held that formality is not necessary, but that the essential thing is that
the employees affected, by behavior or language, manifest an "intent" that
the union association, person, or other representative act as their agent in collec-
tive bargaining." This intent has been found in many situations lacking the
formality of specific designation. Thus, spontaneous strikers voting in favor
of an "outside union" (although no particular union was named in the vote),"
affirmative participation in a strike vote taken by a union,69 registration cards,6o
applications for membership (although no dues paid or applicants admitted to
57 Lebanon Steel Foundry Co., 130 F. 2d 404, and cases cited therein.
68 Millfay Mfg. Co., Inc., 2 NLRB 919.
59 Lund Co., 13 NLRB 423; N. L. R. B. V. Remington Rand, Inc., 94 F. 2d 862 (C. A. 2),
cert. den. 304 U. S. 576.
01 Elbe File & Binder Co ., Inc., 2 NLRB 906.
'1842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership)," and acceptance of strike benefits 6a have been held to constitute
representation designations. I therefore find, that the 13 employees who voted
affirmatively in the above referendum intended thereby to authorize the Union
to act as their bargaining representative.
By March 15, 11 of the 13 employees in the unit had signed the authorization
above referred to. It thus appears, and I find, that on March 15, 1949, a majority
of the employees in the unit had designated or selected the Union as. their bar-
gaining representative .63
I further find that at all times, since March 15, 1949, the Union has been, and
now is, the representative of a majority of the employees in said unit,64 and by
virtue of Section 9 (a) of the Act, has been, and is now, the exclusive representa-
tive of all the employees in the unit for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment, and other conditions
of employment.
3. The refusal to bargain
The complaint alleges that the Respondent refused to recognize and bar-
gain with the Union on March 1 and March 25, 1919, and "at all times there-
after." The answer admits that the Respondent refused to recognize the Union
as the exclusive representative of its employees, but denies that it refused to
bargain with the Union. The first request for bargaining was by letter dated
February 28, 1949. It requested recognition of the Union and suggested bar-
gaining. This letter was not answered and on March 7, following, President
Pagan on behalf of Circulo executed and filed with the Board a petition for
certification of representatives. Pursuant to this petition, the Circulo and the
Respondent agreed to a consent election to be held on March 28, as heretofore
stated.
However, on March 24, Pagan wrote the Respondent that a request had been
filed with the Board for a withdrawal of the petition for certification, as a free
election could not be held due to interference and discrimination against its
employees by the Respondent. This letter reasserted the majority representa-
tion of the Union and requested that the Respondent set a date and place for
negotiating a contract. Director Ayuso, on March 25, answered Pagan's letter
denying the representative claim of the Union as well as the alleged unfair
labor practices, and insisting that the holding of an election as agreed was the
.only legitimate means of ascertaining the wishes of a majority of the employees
affected. The letter made it clear that the Respondent refused to recognize the
Union until such election had been held.
On April 20, Pagan by letter replied to Ayuso reiterating the majority claim
of the Union and offered to submit "authorized signatures" of employees to be
checked by the Board against a list of eligible employees to prove such majority.
61 Bradford Dyeing Ass'n, 310 U. S. 318; N. L. R. B. v. Consolidated Machine Tool Corp.,
163 F. 2d 376 (C. A. 2, 1947), cert. den. 332 U. S. 824.
62 Lund tf Co, Remington Rand, supra.
6a Orlando Vera signed an authorization on March 15, the same day he resigned his
position with the Respondent as heretofore found. The record does not disclose whether
he signed the authorization before he left his employment or after it. If after, he was
no longer in the unit and should not be counted. However, eliminating Vera's signature
from the count, on the theory that he was not an employee, there still remains 23 out
of the 42 employees who had authorized the Union to represent them.
64 The signatures of a majority of the employees in the unit to a letter dated March 27,
1949, repudiating the Union were secured through the assistance of management, as
heretofore found. The Union's majority is not dissipated by this circumstance. Tisho-
mingo County Electric Power Ass'n, 74 NLRB 864.
EDITORIAL "EL IMPARCIAL" INC. 1843
On April 25 Ayuso replied rejecting the signature checking suggestion as a means
of establishing a majority, and insisting that an election be held.
No meetings have ever been held between representatives of management and
the Union. As found above, the Union represented a majority of the employees
in the unit on and after March 15, 1949. On March 25 following, the Respondent
definitely refused to recognize or negotiate with the Union. Its position since
March 25 has remained the same. This position of the Respondent constitutes
a refusal to bargain under the statute, unless, as claimed by the Respondent, it
was entitled, under the circumstances, to have the union majority established
by a formal election.
Normally, the Board favors balloting under its auspices, as a method of as-
certaining the wishes of employees. In such cases, it requires that the balloting
be secret and by other precautions endeavors to protect the free expression of
the employees choice. It usually will not hold an election until after_ a com-
plaint issued involving unfair labor practices against the employer has been dis-
posed of. In cases too numerous to mention, it has set aside elections held in
an atmosphere of interference, coercion, and discrimination or hostility, by the
employer.
In the instant case, although the Respondent agreed to an election, it im-
mediately thereafter sought to expand the unit. Prior to the election date, it
discharged and otherwise discriminated against union employees. As heretofore
found, it not only questioned employees as to their union membership or sympa-
thies, but by threats of retaliation and sometimes of physical violence, made it
clear to the employees that it would not tolerate the Union in its plant. Finally,
it permitted and assisted in the solicitation of signatures of employees to the letter
repudiating the Union, although it refused to permit solicitation for the Union.
In such an atmosphere of intimidation and fear a free election would have been
impossible and the Union was not required to prove its existing majority by
formal ballot.65
I find that the Respondent entered into the election agreement in bad faith,
and thereafter and before the agreed election date instituted a campaign of
interference, restraint, coercion, retaliation, and discrimination against the union
employees or sympathizers, designed to destroy the effectiveness of the Union
in the plant; and that by the above acts, and by its refusal to recognize and
bargain with the Union on March 25 and thereafter, the Respondent has violated
Section 8 (a) (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON 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 bur-
dening 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, it will be recommended that the Respondent cease and desist therefrom
and take certain affirmative action necessary to effectuate the policies of the Act.
It has been found that the Respondent discriminated in the hire and tenure of
0 Prigg Boat Works, 69 NLRB 97 ; Cuffman Lumber Co., Inc., 82 NLRB 296.
1844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment of Graciany Miranda Archilla, Hector Landron Ubinas, and Ismael
Fernandez. It will, therefore, be recommended that the Respondent offer to
the above-named individuals immediate and full reinstatement to their former,
or substantially equivalent positions 68 without prejudice to their seniority or
other rights and privileges and make them whole for any loss of pay they may
have suffered by reason of the Respondent's discrimination by payment of a sum
of money equal to that which normally would have been earned as salary or
wages from the date of their discharge to the date of the offer of reinstatement,
-less their net earnings during such period.
Having found that the Respondent on March 25, 1949, and thereafter, refused
to bargain with the Union as the exclusive representative of its employees in an
appropriate unit, it will be recommended that the Respondent, upon request,
bargain collectively with the Union.
A consideration of the entire record herein clearly discloses an attitude on the
part of the Respondent of opposition to the purposes of the Act generally. In
order to make effective the inherent guarantees of Section 7 of the. Act thereby
minimizing industrial strife which burdens and obstructs commerce, it will be
recommended that Respondent cease and desist from in any manner infringing
upon the rights protected in Section 7 of the Act.
. Upon the basis of the foregoing findings of fact, and upon the entire record,
the undersigned makes the following :
CONCLUSIONS OF LAW
1. Circulo de Prensa (Gremio de Periodistas Puertorriquenos) is a labor
organization within the meaning of Section 2 (5) of the Act.
2. All employees of the editorial and news department, including editorial
writers, staff writers, rewriters, reporters, copyreaders, translators, photogra-
phers, cartoonists, telegraphers, librarian and assistant libarian, and the copy
boys, employed at the Respondent's San Juan plant, but excluding all production
and maintenance employees, bookbinders, proofreaders, administrative and
executive employees, guards, watchmen, and supervisory employees, constitute
a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
3. On "March 15, 1949, Circulo de Prensa (Gremio de Periodistas Puertor-
riquenos) was, and at all times since, has been, and now is, the exclusive repre-
sentative of all employees in the unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
4. By refusing on March 25, 1949, and at all times thereafter, to bargain with
.the above-named. Union as the exclusive representative of the employees in the
appropriate unit, the Respondent has engaged in and is engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (5) of the Act.
5. By. discriminating in regard to the hire and tenure of employment of
Graciany Miranda Archilla, Hector Landron Ubinas, and Ismael Fernandez,
thereby discouraging membership in the above Union, the Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
a Chase National Bank, 65 NLRB 827.
EDITORIAL "EL IMPARCIAL" INC . 1845
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
8. The Respondent has not discriminated as to the hire and tenure of employ-
ment of Severo Ramos Alancastro, Virgilio Medina Deliz, Orlando Vera, Fran
cisco J. Colmenares, Nelsie Ramirez de Benero, and Antonio Arana Soto, in,
violation of Section 8 (a) (3).
[Recommended Order omitted from publication in this volume.]