Editorial "El Imparcial", Inc.

National Labor Relations Board - Board Decisions

Apr 24, 1961

131 N.L.R.B. 223 (N.L.R.B. 1961)

EDITORIAL "EL IMPARCIAL", INC. 223
It will be recommended that the Respondent , upon request , make available to
the Board and its agents all payroll and other records pertinent to the analysis of
the amounts of backpay due the discriminatively discharged employee, namely,
Charles Neal.
Upon the basis of the foregoing findings of fact , and upon the entire record in
these proceedings , I make the following:
CONCLUSIONS OF LAW
1. The Respondent is and has been at all times material to this proceeding an
employer within the meaning of Section 2(2) and is and has been engaging in com-
merce within the meaning of Section 2 (6) and ( 7) of the Act.
2. By discriminatorily discharging employee Charles Neal on or about June 27,
1960 , as found above , the Respondent has engaged in and is engaging in an unfair
labor practice within the meaning of Section 8(a)(3) and ( 1) of the Act.
3. By interfering with, threatening , restraining , and coercing employees in the
exercise of rights guaranteed them by Section 7 of the Act , as found above , the Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
[Recommendations omitted from publication.]
Editorial "El Imparcial", Inc. and Teamsters , Chauffeurs, Ware-
housemen and Helpers , Local 901, IBTCW & H of America.
Case No. 24-CA-1293. April 24, 1961
DECISION AND ORDER
On October 12, 1960, Trial Examiner John H. Dorsey issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel filed exceptions to the
Intermediate Report and a brief in support thereof.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Intermediate Re-
port, the exceptions and brief, and the entire record in the case, and
hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.'
[The Board dismissed the complaint.]
CHAIRMAN MCCULLOCH and MEMBER BROWN took no part in the
consideration of the above Decision and Order.
1 The General Counsel's exceptions were limited to the Trial Examiner 's failure to find
that a speech made by the Respondent ' s owner to a gathering of employees was violative
of Section 8(a) (1) of the Act The Trial Examiner 's Intermediate Report states that
the General Counsel 's and Respondent's witnesses gave conflicting testimony regarding
the content of the speech, and that the witnesses for each of the parties failed to impress
him that they were telling the whole truth. The Trial Examiner failed to credit any of
the witnesses , and consequently found that the General Counsel had not proved the allega-
tion by a preponderance of the testimony and recommended Its dismissal . In these cir-
cumstances we affirm the dismissal of the allegation Blue Flash Express, Inc., 109 NLRB
591, 592, 601-602; and Casa Grande Cotton Oil Mill, 110 NLRB 1834, 1852.
131 NLRB No. 38.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on April 4, 1960, by Teamsters, Chauffeurs, Warehouse-
men and Helpers, Local 901, IBTCW & H of America, herein called Union, against
Editorial "El Imparcial", Inc., herein called Respondent, the General Counsel for
the National Labor Relations Board, herein called General Counsel, caused a com-
plaint to issue on May 20, 1960, alleging that Respondent had violated Section
8(a) (1) of the National Labor Relations Act, as amended, herein called the Act.
Respondent, on May 24, 1960, filed its answer denying that it had violated the
Act as alleged.
Pursuant to notice, a hearing was held before the duly designated Trial Examiner
at Santurce, Puerto Rico, on June 27 through 30 and July 5 through 7, 1960 The
General Counsel and Respondent were each represented by counsel. All parties
were afforded full opportunity to be heard, to introduce relevant evidence, to present
oral argument, and to file briefs. The parties made oral arguments; each waived
the right to file a brief.
Upon consideration of the entire record, the oral arguments of counsel, and upon
my observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent Employer is a corporation organized and existing under the laws of
the Commonwealth of Puerto Rico, with its principal office and place of business
in the city of San Juan, Puerto Rico, where it is engaged in the preparation, publica-
tion, and sale of a daily newspaper known as "El Imparcial." In connection with
its business operations, it subscribes to the news and photo services furnished by
International News Service and International Photographing Service, which organi-
zations are located and operate throughout various States of the United States. In
connection with the daily publication and distribution of its newspaper, "El Im-
parcial," it furnishes advertising space and services to various companies that manu-
facture and distribute nationally known products which are sold throughout various
States of the United States and its Territories. During the calendar year 1959,
which period is representative of all times material herein, the gross annual income
of Respondent Employer from the publication and daily sale of its newspaper was
in excess of $1,000,000.
Respondent, in its answer, admits that it is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. I so find.
II. THE LABOR ORGANIZATION INVOLVED
Respondent stipulated at the hearing that the Union is a labor organization within
the meaning of Section 2(5) of the Act. I so find.
III. THE ISSUES
The issues in this case are confined by the complaint to six precise allegations of
conduct pleaded as constituting violations of Section 8(a)(1) of the Act.' Con-
sequently, it must be resolved whether these specific allegations, or any of them,
have been proven by a "preponderance of the testimony."2
To avoid superfluity, the allegations of unlawful conduct will be set forth as
captions under which each will be resolved.
IV. RESOLUTION OF THE ISSUES
A. Background
In January 1960 3 the Union started a campaign to organize the editorial employees
of Respondent. Sometime thereafter, the Union filed a petition in conformity with
Section 9(c) of the Act (Case No. 24-RC-1407, not published in NLRB volumes).
' Counsel for the General Counsel admitted this.
z Section 10(c) of the Act.
3 All dates herein are in the year 1900, unless otherwise indicated.
EDITORIAL "EL IMPARCIAL", INC. 225
The Board directed an election which was held on April 25. Eligible to vote in the
election were 47 employees of whom 46 voted. What action the Board has taken
as a result of the election is not here material.
Prior to the election , on April 9, the Union sent a telegram to Respondent in-
forming it that it had designated "Jose Gil De La Madrid as delegate and Jesus
Rodriquez Benitez as alternate delegate of Teamsters Union at editorial section of
El Impartial." 4
B. "On or about April 16, 1960 Antonio Ayuso Valdivieso . . . threatened an
employee with physical harm because of said employee's concerted activities on
behalf of the Union"
The unnamed employee in the allegation, quoted in the caption, above, is Jose
Gil De La Madrid. La Madrid, a reporter employed by Respondent, is the person
named as delegate of the Union in the telegram of April 9. The telegram was
received by Respondent.
Respondent's newspaper is published in the afternoon. It is the practice of
Respondent to assign a reporter each evening to sit at the desk of the chief of the
editorial department to cover news items breaking during that period, to assemble
news received from wire services, and to direct one or two photographers to news
sources. La Madrid was fulfilling this assignment the night of April 16.
At 8 o'clock the night of April 16, Julio Colon Gandia (Colon), entered the
editorial room and sat at a desk. Colon was identified as a "driver and bodyguard"
for Antonio Ayuso Valdivieso (Ayuso), Respondent's managing director and prin-
cipal stockholder. La Madrid testified that he had never before seen Colon in the
editorial department.
About 15 minutes after Colon's arrival, Ayuso appeared in the editorial depart-
ment. Present in addition to those previously named was Jose De Feliciano, a
photographer. La Madrid testified that Ayuso was carrying a revolver between his
pants and his stomach in the area of his navel, the handle showing.5 Further, that
Ayuso, with his hand on the revolver, walked in front of his (La Madrid's) desk
three times "looking ferociously" at him and he "thought" that Ayuso "was going
to ball [sic] me out for being a labor representative." Feliciano testified that he
observed this and then left Respondent's premises because he feared for the safety
of La Madrid and himself.
About 15 minutes after Feliciano left he telephoned La Madrid from a police
station at stop 6 where he was making a routine call and again, about 9 p.m.,
telephoned him from a police station at stop 19 where he was covering a shooting.
Both calls, Feliciano testified, were made because he feared that La Madrid's life
was in danger. Feliciano returned to the editorial department about 10:30 p.m. and
found La Madrid, Colon, and Ayuso still there. At 11 p.m. La Madrid left;
Feliciano then developed some pictures and left at midnight.
In the period while Feliciano was at the police stations, La Madrid testified that
the telephone rang, Ayuso came to his desk, and in "a violent way" with his hands
on his revolver forbade him to use the telephone.6
From my observations of La Madrid and Feliciano and for the following reasons,
inter alia, I cannot credit their testimony: -
(a) Feliciano testified that although he was at two police stations during the time
he feared that La Madrid's life was in danger he did not report the situation to the
police.
(b) While La Madrid testified that Ayuso in "a violent way" forbade him to use
the telephone he admitted that thereafter and in the presence of Ayuso he did use
the telephone many times.
Since I do not credit the testimony adduced in support of this allegation, I recom-
mend that it be dismissed.
An earlier case against Respondent is reported at 123 NLRB 1585, in which, inter
alia, the Board ordered Respondent , in the words of the statute, to cease and desist from
violating Section 8 (a) (1) of the Act. The court of appeals enforced this case in 287
F 2d 184 (CA 1, May 3, 1960).
s That Ayuso had a permit to carry a revolver was generally known to Respondent's
employees
6 La Madrid demonstrated what he meant by "a violent way" by pounding his hand on
the Trial Examiner 's bench.
599198-62-vol. 131-16
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. "On or about April 22, 1960 . Ayuso-assembled a group of employees
. and threatened that he would use fire arms to combat union organizational
activities and to do physical harm to an employee because of that employee's
concerted activities on behalf of the Union."
This allegation raises two issues : (1) Did Ayuso threaten to use firearms to com-
bat the Union ; and (2 ) did he threaten to do physical harm to an employee because
of that employee's union activities . Resolution of the issues depend upon findings
relative to statements made at a meeting of Respondent 's editorial employees, held
April 22, called and addressed by Ayuso.
Sometime before April 22, leaflets addressed to Respondent 's editorial personnel,
bearing the caption "A Good Salary and Better Treatment ," over the names of La
Madrid and another of the Union 's delegates , were dropped from an airplane. One
of these leaflets was brought to the attention of Ayuso. The substance of the leaflet
was severely critical of Respondent and Ayuso concerning the employer-employee
relationship . Inter alia, the Respondent was accused of exploitation and enslave-
ment of its employees ; Ayuso, personally , of exerting economic pressures , cajolery,
even bribery in an effort : ( 1) to continue such status ; and (2 ) to persuade the em-
ployees from voting in a representation election which the Board had directed to
be held on April 25.
On April 22, at approximately 2 p.m., Ayuso entered the editorial department,
called together the employees , and addressed himself to them. There is no dispute
that most of his remarks were addressed to refuting the accusations made in the
leaflet. To this extent he was within his legal rights , guaranteed by Section 8(c) of
the Act, to the extent that he made no threats of reprisal or force or promise of
benefit . The litigable issue is whether Ayuso made the threats specifically alleged in
the complaint , which, if proven , are proscribed by Section 8(c).
During the course of the meeting, Ayuso, according to the witnesses for the Gen-
eral Counsel : ( 1) called La Madrid a Communist ;7 ( 2) listed the occasions on
which he had befriended La Madrid ; ( 3) stated in effect that he was an accommoda-
tion endorser on a promissory note of La Madrid's, held by a bank, which he would
insist La Madrid make good and if he did not "limpiar el pico"; 8 (4) expressed his
surprise and displeasure that La Madrid should attempt to organize the employees;
(5) stated he was an expert shooter , could flip a coin into the air and shoot it; (6)
stated he knew how to finish with the Union , because that was the reason he was
carrying a gun ; and (7 ) queried a number of the employees present as to whether
they had been mistreated in the manners alleged in the leaflet . This meeting lasted
from about 2 to 5 p.m.
Ayuso's version of the meeting was that he opened it by saying , "Please under-
stand that I want to talk to you not because I want your votes but because nothing
hurts my feelings so much as injustice and ingratitude and here I am going to defend
myself of what I think to be injustices committed towards me with this leaflet which
is trying to discredit me in the public eye. . . . You can vote as you please, you can
vote against me or in my favor . . . He admitted that he discussed La Madrid's
history and the ways in which he had befriended him. Further, referring to per-
sonnel records , he interrogated various of the employees to demonstrate the favors
he h-d bestowed upon them and now, as a result, they had benefited ; then , when he
asked if he had abused them , used profane language, or insulted them , they replied:
"No we do not have any complaints ." He denied that he ever used the phrase
"limpiar el pico" with reference to La Madrid.
Employees , who were present at the meeting and called to the stand by Respond-
ent, testified that Ayuso made no threats . did not state that he could toss a coin into
the air and shoot it, or threaten to use firearms to combat the Union
The len ^_ th of the meeting ( 3 hours ), conducting it 3 days before the scheduled
representation election , and Ayuso 's own testimony concerning it create more than
a suspicion that he sought to influence the employees to vote in his "favor." This,
of course . he had a legal right to do provided it was accomplished in a manner de-
void of "threat of reprisal or force or promise of benefit ." The complaint alleges
that Ayuso's statements come within the proscriptions of Section 8(c) of the Act in
7 The record contains evidence of some of La Madrid's political activities This Trial
Examiner finds it unnecessary to determine the truth of the characterization and attaches
no evidentiary weight to it
8 An idiomatic expression in Puerto Rican Spanish that can have various meanings such
as "to clean out," "to fire," and "to kill ." The Trial Examiner is unable to determine
the sense in which it was used.
EDITORIAL "EL IMPARCIAL", INC . 227
only two particulars : ( 1) he threatened to use firearms to combat union organiza-
tional activity ; and (2 ) he threatened to do physical harm to an employee (La Mad-
rid) because of his union activities . Thus, the issues as raised by the pleadings are
confined.
There is a conflict in the testimony as to whether Ayuso stated or inferred that
he would use firearms to combat the Union . The witnesses for each of the parties
failed to impress this Trial Examiner that they were telling the whole truth to the
best of their respective collections . I do not credit the testimony of any of them.
Consequently I find that the General Counsel has not proven this allegation by a
preponderance of the testimony .9 I recommend its dismissal.
Whether Ayuso threatened physical harm to La Madrid is dependent upon whether
he used the word "limpiar" and the sense in which he used it . Since the parties
are in agreement that the word has various meanings-some lawful ; and, since the
records fails to prove the sense in which it was used , if it were used , it must be pre-
sumed that it was used in a lawful sense. Therefore , I find that this allegation fails
for lack of proof. I recommend its dismissal.
D. "On or about April 22, 1960 , Director Ayuso Valdivieso offered an employee eco-
nomic benefits, in the form of increased wages and the use of an automobile, con-
ditioned upon said employee 's rejection of the Union in the election...."
* * * * * * *
"On or about April 23, 1960 , Director Ayuso Valdivieso offered, to pay an employee
for work not performed if said employee would not appear for work on April 25,
1960, and would not vote in the election .. .
* * * * * * *
"On or about April 25 , 1960, Director Ayuso Valdivieso offered , and Raul Pacheco
paid, to an employee a sum of money to induce said employee to refrain from
voting in the election... .
* * * * * * *
"On or about April 25, 1960, Raul Pacheco , Hector Cintron Ayuso, and Director
Ayuso Valdivieso attempted to physically detain an employee so that said em-11ployee would not have an opportunity -to vote in the election... .
The unnamed "employee" in the allegations set forth in the above caption is
Brunilda Cunipiano Borcherding •( Cunipiano).
Cunipiano , in 1958 , worked for Respondent for approximately 8 months.- She was
discharged because of continuous absenteeism and tardiness . She was reemployed
on March 13 or 14 as an interpreter.
She testified that on April 22, at 11 a.m., Ayuso invited her into his office. He
asked her the reason for her tardiness . She explained that it was due to the uncer-
tainty of public transportation from her home to Santurce . He commented on her
"intelligence ." Then he expressed his surprise at her being a member of the Union,
offered to raise her salary from $173 to $250 per month , and offered to have her
work as a reporter and to train her as a• photographer : When she asked when this
would become effective, he replied , "Well, we have to wait until after the election,
because you realize that with this coming up I have no mind to start changes now."
On the following day, Saturday , April 23, Ayuso asked her "to abstain from work-
ing on Monday ( the date of the election , April 25)" . "we won 't discount it from
your salary" . "if you come on Monday (April 25) I will never know whether
you voted for the union or for us." She admitted that she was telling Ayuso "I was
not going to vote for the union."
On the date of the election , April 25 , Cunipiano reported to work. At noon
on that date she met Ayuso , who invited her into his office. She testified , "Then he
said `. . . you told me that you were not going to vote, and then I find out that on
Saturday you were making propaganda for the union .' He repeated all the benefits
that I could obtain by refraining from voting, and he said to me `I want you to
leave now." ' ' Then referring to his doubts as to how she would cast her vote, if she
voted , Ayuso said , "I want you to go some place , go to the movies or whatever you
want . If you want some money , I will give you money." She replied she "was going
to go back and have lunch ." She testified that while eating her lunch Ayuso beck-
oned her to leave.
Continuing her testimony , Cunipiano testified that after she had eaten her lunch
.she met Raul Pacheco,'° chief of advertising for Respondent , who "advised" her to
G Section 10(c) of the Act.'
10 Full name . Raul Pacheco Vidal.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
go to Ayuso 's office . Her testimony then becomes confusing . At best it would indi-
cate that she met Pacheco , Hector Cintron Ayuso (Cintron), Respondent 's general
manager, and Ayuso-one of them said , "Go and lock yourself in the bathroom until
after the elections ." When she refused , Ayuso told her to use an inside stairway from
his office to the offices of a lawyer in the building . This she did not do.
In addition to the above, Cunipiano testified that Pacheco gave her $2 to go to the
movies. On cross-examination she testified that at the end of the lunch hour (on
April 25), before the election , she met Pacheco and told him that "Ayuso wanted me
to go to the movies" and Pacheco "pulled out $2 and gave" it to her.
All of the above testimony by Cunipiano was uncorroborated . Ayuso's testimony
with reference to his conversation with Cunipiano during the period in question was,
he remonstrated , concerning her habitual tardiness . By stipulation this was corrobo-
rated by Ayuso's secretary . Ayuso denied offering her a car and a salary increase
from $173 to $250 a month, denied offering her any inducement to abstain from
voting, denied authorizing anyone to give her any money, and asserted he did not
think she had even the right to vote because she was a conditional employee. In
addition , Ayuso testified , in effect, that it was ridiculous to think he would offer
such inducements to Cunipiano to refrain from voting because "I knew we had
enough votes.. ..
Pacheco testified that at lunch time on the day of the election he was talking to a
group of fellow workers when Cunipiano asked him for $2 to go to the movies. Two
witnesses testified that they were present when Cunipiano called Pacheco aside, spoke
to him out of their hearing, and saw Pacheco hand some money to Cunipiano. Pa-
checo admits giving the money; he had done so often in the past. He denied that
anyone had given him instruction to give the money to Cunipiano on this occasion.
There is unrebutted testimony that Cunipiano was in the habit of borrowing money.
In the light of all the facts it seems unlikely that Ayuso would make such ex-
travagant offers to induce Cunipiano not to vote. She was but 1 employee out of
47 eligible to vote, of whom 46 voted.
I find that Cunipiano's testimony as to offers of inducements and other suggested
actions to refrain from voting is incredible ; also, that she , for reasons of her own,
solicited the $2 from Pacheco . Further, I find that the General Counsel has not
proven , by a preponderance of evidence , the allegations set forth in the caption of
this section. I recommend they be dismissed.
Upon the basis of the foregoing findings of fact , the Trial Examiner makes the
following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce and in activities affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent has not engaged in unfair labor practices as alleged in the complaint.
[Recommendations omitted from publication.]
Local 324, International Union of Operating Engineers, AFL-
CIO and Brewer's City Coal Dock. Case No. 7-CC-118. April
24, 1961
DECISION AND ORDER
On August 29, 1960, Trial Examiner William Seagle issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent did not engage in the alleged unfair labor practices as
set forth in the copy of the Intermediate Report attached hereto and
recommending that the complaint be dismissed . Thereafter, the
General Counsel filed exceptions to the Intermediate Report and a
brief in support thereof.
131 NLRB No. 36.