El Mundo Corp.

351 301 NLRB No. 52 EL MUNDO CORP. 1 The Respondent excepts to the judge’s taking official notice of the United States district court’s factual findings in the related 10(j) proceeding. We find no merit in the Respondent’s exception because it mischaracterizes the judge’s action. The Respondent correctly argues that a court order issued under Sec. 10(j) of the Act establishes only that there is ‘‘reasonable cause to believe’’ that violations have been committed. The judge here did not, however, rely on the district court findings as a substitute for consideration of evidence in this record. Rather he treated them as a convenient listing of relevant factual allegations; and he determined that they were either stipulated to by the parties in this proceeding or otherwise not contested by the Respondent and that they were consistent with all the evidence in the proceeding. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evi- dence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex- amined the record and find no basis for reversing the findings. We also find without merit the Respondent’s allegations of bias and prejudice on the part of the judge. After full consideration of the record and the judge’s decision, we perceive no evidence that the judge made prejudicial rulings or dem- onstrated bias against the Respondent. No party has excepted to the judge’s finding that the subcontracting of distribution work in the circulation depart- ment was a mandatory subject of bargaining. 3 In sec. V,(B) of the decision, the judge found an 8(a)(5) violation based on the Respondent’s refusal to honor agreements previously reached with the Union on September 10, 1987. We do not rely on the judge’s analysis of this issue. We find that the Respondent violated Sec. 8(a)(5) by its refusal to rec- ognize and bargain with the Union on December 22, 1987. We find, in agree- ment with the judge, that the Respondent was a successor and, as such, had an obligation to recognize and bargain with the Union and to reinstate the terms and conditions of employment that were in effect when El Mundo Inc. closed its operations on August 30, 1987. See Love’s Barbecue, 245 NLRB 78 (1979), enfd. in pertinent part sub nom. Kallman v. NLRB, 640 F.2d 1094, 1102–1103 (9th Cir. 1981); State Distributing Co., 282 NLRB 1048 (1987). This finding is consistent with the judge’s Conclusions of Law. In finding that employee Roberto Jusino’s discharge violated Sec. 8(a)(3), the judge states that the General Counsel had the burden to prove that pro- tected concerted activities were the motivating factor in the Respondent’s deci- sion to terminate Jusino, citing Wright Line, 251 NLRB 1083 (1983). The cor- rect test under Wright Line is whether protected concerted activities were a motivating factor in the discharge. We find that the General Counsel estab- lished that protected concerted activities were a motivating factor in Jusino’s discharge and the Respondent failed to rebut the General Counsel’s prima facie case. Therefore, the discharge violated Sec. 8(a)(3). The Respondent excepts to the judge’s reliance on the Respondent’s dis- criminatory hiring practices for his determination that, absent unfair labor practices, the Respondent would have hired a majority of the predecessor’s employees and that, therefore, pursuant to State Distributing Co., 282 NLRB 1048 (1987), the record supports a finding of work force continuity for pur- poses of successorship. In particular, the Respondent contends that the judge’s use of the discriminatory hiring evidence is inconsistent with the Board’s deci- sion in Kessel Foods, 287 NLRB 426 (1987), enfd. 868 F.2d 881 (6th Cir. 1989), cert. denied 110 S.Ct. 76 (1989). We disagree. Here, unlike in Kessel Foods, there was evidence showing that the Respondent’s agents made numer- ous statements to employees indicating that it would be futile for them to apply for jobs with the Respondent because of their previous union affiliation. 4 The General Counsel and the Charging Party have excepted to the inad- vertent omission of Angel Baez from the attachment to the Appendix. We find merit to the exceptions and shall revise the attachment to include the name ‘‘Angel Baez.’’ The judge states in the remedy portion of his decision that, ‘‘Reinstatement shall be made on the basis of seniority in a manner consistent with the Rem- edies provided in State Distributing Co., 282 NLRB 1048 (1987), and Service Operations Systems, 272 NLRB 1033 (1984), and with the call back list pre- pared by Respondent on September 17, 1987.’’ To avoid any confusion, we clarify that reinstatement shall be made first on the basis of the September 17, 1987 call-back list, even though some names on the list may deviate from seniority. After the call-back list is exhausted, reinstatement shall be made on the basis of seniority. Additionally, if there are an insufficient number of posi- tions for those ordered reinstated, a preferential hiring list shall be maintained in order of seniority. We find that backpay should run from November 9, 1987, the date Re- spondent began assembling its work force. The record establishes that the Re- spondent had devised a discriminatory hiring scheme prior to November 9, 1987, and that it was used in hiring employees beginning on November 9, 1987. Finally, we agree with the judge that a broad cease-and-desist order is nec- essary because the Respondent has demonstrated a ‘‘general disregard for [its] employees fundamental statutory rights.’’ Hickmott Foods, 242 NLRB 1357 (1979). El Mundo Corporation and Worldwide Manage- ment Corporation and Union de Periodistas y Artes Graficas y Ramas Anexas de Puerto Rico, Local 225, a/w The Newspaper Guild, AFL–CIO, CLC. Cases 24–CA–5714 and 24– CA–5761 January 25, 1991 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On June 16, 1989, Administrative Law Judge Rich- ard H. Beddow Jr. issued the attached decision. The Respondent and the Charging Party each filed excep- tions and supporting briefs, the General Counsel filed a brief in support of the judge’s decision, cross-excep- tions, and a supporting brief. The Respondent filed an answering brief to the Charging Party’s exceptions, the General Counsel filed a brief in answer to the Re- spondent’s exceptions, and the Charging Party filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings,1 findings,2 and con- clusions,3 to modify the remedy,4 and to adopt the rec- ommended Order as modified. 1. In reaching his decision in this case, the judge struck the testimony of the Respondent’s witnesses be- cause substantial record evidence established that the witnesses, who had been sequestered pursuant to the rule set out in Unga Painting Corp., 237 NLRB 1306 (1978), were nonetheless shown, often by the Re- spondent’s attorneys, various portions of the transcripts of the testimony of both the General Counsel’s and the Respondent’s witnesses. We do not approve of the Re- spondent’s showing sequestered witnesses the tran- scripts of other witnesses’ testimony. Rather than strike the tainted testimony entirely, however, we believe the 352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD better course here is to scrutinize the tainted testimony closely, mindful of that taint as a factor in determining credibility. In scrutinizing that testimony, we accord our usual deference to the judge’s credibility determinations. Thus, while the judge ultimately struck the testimony of the Respondent’s witnesses, he also made numerous independent determinations of the credibility of the Respondent’s witnesses’ testimony. We rely on the judge’s findings discrediting such testimony in reach- ing our decision. Further, we stress that the judge found the testimony of the General Counsel’s wit- nesses to be ‘‘independently persuasive and corrobora- tive and inherently more credible than the contradic- tory denials and explanations offered in the stricken testimony of the Respondent’s witnesses.’’ The judge stated in this regard (supra at 367): [T]he General Counsel’s non-hostile witnesses testified in a forthright and credible manner, whereas the testimony of the Respondent’s several witnesses displayed evasiveness, contradictions, evidence of unreliability, and especially in the tes- timony of Sostre and Negron, the probability of collusion between them. The judge also found that ‘‘The testimony of the vast majority of the Respondent’s direct witnesses is tainted by inherent untrustworthiness as a result of the clear and repetitious violations of the sequestration order’’ (supra at 358) and that the ‘‘likelihood that such testi- mony is unreliable is so substantial that it equates to a showing that General Counsel and the Charging Party have been prejudiced . . . .’’ Based on the judge’s findings as to the credibility of witnesses, and our own independent review of the tes- timony, we find that the Respondent’s witnesses were not credible and that the General Counsel’s witnesses were independently persuasive. 2. The General Counsel contends that a visitatorial clause is necessary in this case. The General Counsel asserts that because the Respondent reduced the wages and benefits of all of its employees and modified or eliminated all the terms and conditions of employment of its employees, the task of gathering evidence to re- solve these issues will be substantial and complex, thus necessitating expanded access to certain documents. The General Counsel also contends the visitatorial clause is necessary to ensure the Respondent’s co- operation, because the Respondent has demonstrated a propensity to renege on agreements and may well seek to evade compliance. In addition, the General Counsel argues that a visitatorial clause is needed in particular to aid in the determination of backpay owed as a result of the Respondent’s subcontracting of certain circula- tion department work. The General Counsel points out that there have been at least 117 such subcontractors. The judge denied the General Counsel’s request be- cause he concluded, based on the Respondent’s con- duct after the issuance of the order in the 10(j) injunc- tive proceeding, that it was not continuing in its pat- tern of evasion. As the Board did in 299 Lincoln Street, Inc., 292 NLRB 172 at 175 (1988), we decline to grant a broad visitatorial clause like that at issue in Cherokee Marine Terminal, 287 NLRB 1080 (1988); but we find a rea- sonable basis for granting a more limited one, tailored to the facts of the particular case. In particular, we find it warranted to require the Respondent to preserve and furnish on request records pertaining to the subcon- tracting of circulation department work, because those will be needed to determine the backpay of discriminatees affected by that subcontracting. We shall modify the recommended Order accordingly. We also shall modify the recommended Order to provide that copies of the notice shall be mailed to all persons listed on the attachment to the appendix at their last known address. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, El Mundo Corporation, Hato Rey, Puerto Rico, its offi- cers, agents, successors, and assigns, shall take the ac- tion set forth in the Order as modified. 1. Substitute the following for paragraph 2(c). ‘‘(c) On request of the above Union, retroactively restore the terms and conditions of employment that existed immediately before it purchased the El Mundo Corp. operations, including wage rates and benefits that would have been paid absent unlawful changes from December 22, 1987, until it negotiates in good faith with the Union to agreement or to impasse; this also includes rescission of the unilateral subcontracting of unit work in the circulation department including re- instatement of the work previously performed by the district managers, district managers leadpersons, col- lectors, district coordinators, prepaid subscription clerk, newspaper distribution schedule clerk, and complaint mail subscription clerk. The remission of wages shall be computed as prescribed in Ogle Protection Services, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respond- ent shall remit all payments it owes to the employee benefit funds and reimburse its employees in the man- ner set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981), for any expenses resulting from the Respondent’s fail- ure to make these payments. Any amounts that the Re- spondent must pay into the benefit funds shall be de- 353 EL MUNDO CORP. termined in the manner set forth in Merryweather Op- tical Co., 240 NLRB 1213 (1979).’’ 2. Substitute the following for paragraph 2(f). ‘‘(f) Preserve and, on request, make available to the Board or its agents for examination and copying all payroll records, timecards, personnel records, reports and other documents necessary to analyze Respond- ent’s compliance with the employment offer provisions and the amount of backpay due under the terms of this decision. Additionally, preserve and, on request, make available to the Board or its agents for examination and copying all legal documents, correspondence, memoranda, pay records and any other records or doc- uments relating to backpay for subcontractors per- forming circulation department work.’’ 3. Insert the following as paragraph 2(h) and reletter all subsequent paragraphs accordingly. ‘‘(h) Mail a copy of the notice marked ‘‘Appendix’’ to all employees on the attachment to the appendix at their last known address. The notice shall be in both English and Spanish and shall be duly signed by the Respondent on forms provided by the Regional Direc- tor for Region 24.’’ 4. Substitute the following attachment for that of the administrative law judge. Attachment 1. Abreu Martinez, Nestor 2. Acevedo Colon, Angel 3. Acevedo Nunez, Jaime 4. Adorno, Guillermo 5. Agosto Montanez, Angel M. 6. Agosto Morales, Tomas 7. Alamo Colon, Alejandro 8. Alers Roldan, Rafael 9. Alicea Ramos, Jose Luis 10. Alvarez, Hiram E. 11. Alvarez Aponte, Miguel 12. Alvarez Escalera, Jose 13. Alvarez Ramos, Hermenegildo 14. Alvarez Rodriguez, Angel 15. Ambert, Hector 16. Andino Pagan, Enrique 17. Angueira, Victor M. 18. Aponte Ocasio, Librado 19. Arana Liduvina 20. Arce Santiago, Luis 21. Arroyo, Miguel 22. Asencio Ramirez, Danny 23. Astacio Burgos, Gladys 24. Avila, Fernando 25. Aviles Ortiz, Angel 26. Ayala, Rafael 27. Baez Perez, Agustin 28. Bally Garcia, Rafael 29. Barreiras Torres, Rosario 30. Beardsley, Clarence 31. Bernard, Antonio 32. Berrios, Nelson 33. Betances Bonilla, Manuel 34. Boob Margaret 35. Borras, Gloria 36. Bracetty, Jorge 37. Bultron Rosa, Ramon Amed 38. Buso Rodriguez, Lourdes M. 39. Caban Sanchez, Jaime A. 40. Cabanas Santiago, Ana M. 41. Cabrera Agustin 42. Cabrera, Alba Raquel 43. Cabrera, Carlos 44. Cabrera Rivera, Evelyn 45. Calderon Roman, Maria A. 46. Camareno Rivera, Felix 47. Campos Romero, Pedro 48. Cano Serrano, Rafael 49. Cantres, Ramon 50. Cao, Jose 51. Capacetti Carbonell, Julio A. 52. Capacetti Carbonell, Julio A. 53. Caraballo, Jorge Luis 54. Carrasquillo Conzalez, Rafael 55. Carrasquillo Sola, Roberto 56. Castro Basabe, Jose E. 57. Castro Estremera, Felix N. 58. Castro Velez, Alfredo 59. Cedeno Morales, Angel M. 60. Cestau Ruiz, Luis 61. Colon Acosta, Jose E. 62. Colon Gonzalez, Jose 63. Colon Gonzalez, Manuel 64. Colon Rodriguez, Jose R. 65. Contreras Lozano, Nestor 66. Cordero Torres, Sonia I. 67. Cortes Jimenez Edwin 68. Cruz, Carlos 69. Cruz, Jose D. 70. Cruz Cortes, Isabel 71. Cruz Vazquez, Jose Antonio 72. Dalmau, Luis R. 73. Davila Cardona, Francisco 74. De Jesus Vazquez, Enrique 75. De Jesus Vazquez, Juan A. 76. De Leon Pedraza, Isabel 77. De Leon Vazquez, Miguel A. 78. Delgado Santana, Isieal 79. Diaz, Maria A. 80. Diaz Rosalie 81. Diaz Alcaide, Maritza 82. Diaz Lopez, Rafael 83. Diaz Mendez, Rafael 84. Diaz Rosado, Miguel A. 85. Diaz Santiago, Antonio 86. Droz, Ana Socorro 87. Espinosa Martinez, Luis 354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 88. Esquerdo, Heriberto 89. Esteves Orriola, Arcelio 90. Estrada Ortega, Angel 91. Feliciano Tirado, Rafael 92. Felix Perez, Hector Luis 93. Fernandez, Jose Arturo 94. Fernandez Gonzalez, Erasmo 95. Ferrer, Melba 96. Figueroa, Maria D. 97. Figueroa Adorno, Victor 98. Figueroa Agosto, Jesus 99. Figueroa Lopez, Juan 100. Figueroa Nieves, Manuel 101. Figueroa Santiago, Jesus 102. Figueroa Torres, Jose Ivan 103. Flores Ojeda, Pedro 104. Fuentes Fuentes, Roman A. 105. Fuentes Ramos, Jorge 106. Galan Vargas, Julio 107. Garcia, Nestor 108. Garcia Cruz, Jose Manuel 109. Garcia de Gracia, Rafael 110. Garcia Fontanez, Francisco 111. Garcia Parrilla, Hugo Humberto 112. Garcia Santana, David 113. Garrastazu Torche, Arturo 114. Gaston Monsanto, Juan 115. Gatell Toro, Rafael 116. Gerena, Raul 117. Gomez Barrantes, Maria V. 118. Gonzalez, Damaso 119. Gonzalez, Vicente 120. Gonzalez Cordero, Juan I. 121. Gonzalez Cruz, Graciliano 122. Gonzalez Gruz, Luis 123. Gonalez Gonzalez, Felix 124. Gonzalez Gonzalez, Ismael 125. Gonzalez Nolasco, Jose L. 126. Gonzalez Reyes, Alberto 127. Gonzalez Reyes, Obdulio 128. Gonzalez Rivera, Michael 129. Grande la Greta, Vicenzo 130. Guadalupe, Juan M. 131. Gutierrez Lopez, Jesus 132. Guzman Rivera, Francisco 133. Guzman Santiago, Ruben 134. Hernandez Flecha, Juan 135. Hernandez Melendez, Abraham 136. Hernandez Pereira, Jose R. 137. Hernandez Sanchez, Norberto 138. Hernandez Santana, Juan 139. Hernandez Solis, Juan R. 140. Hernandez Vazquez, Digna 141. Herrera Caban, Edwin 142. Hiraldo, Hector Antonio 143. Horta Acevedo, Jose Roberto 144. Irrizarry Gonzalez, Miguel A. 145. Irizarry Pagan, Roberto 146. Jephoth, Angel L. 147. Jimenez Colon, Juan 148. Jimenez Diaz, Pedro 149. Jimenez Resto, Gloria 150. Jimenez Rios, Juan B. 151. Jordan, Jose M. 152. Lara Figueroa, Hector 153. Lasalle Morales, Eduardo 154. Leon Quiles, Jorge 155. Lopez, Gumersindo 156. Lopez, Arbelo Luis A. 157. Lopez Henriquez, Wanda 158. Lopez Lopez, Hector E. 159. Lopez Molina, Pedro 160. Lopez Nieves, Jose 161. Lopez Santiago, Jose Rafael 162. Loudeluciano, Alina De 163. Lugo Soto, Luis A. 164. Maisonet Perez, Hector 165. Maldonado Perez, Fernando 166. Malespin Guerrero, Rafael 167. Mangual Budet, Francisco 168. Mangual Gerena, Eduardo 169. Marrero, Felicita 170. Marrero, Rafael 171. Marrero Molina, Ramon 172. Marrero Rivas, Carmelo 173. Martinez, Francisco 174. Martinez Aponte, Miguel 175. Martinez Perez, Luciano 176. Martinez Ramos, Jose Manuel 177. Medina Irizarry, Reinaldo 178. Medina Ponce, Juan 179. Mejias, Robert 180. Melecio Diaz, Joaquin 181. Melendez, Carmen Socorro 182. Melendez Melendez, Cristobal 183. Melendez Reyes, Edgardoo 184. Mendez Crespo, Miguel Angel 185. Mendez Gonzalez, Armando 186. Mercado, Concepcion 187. Mercado Lisboa, Ramon 188. Millan Pabon, Carmen 189. Molina Otero, Luis G. 190. Molina Rosa, Antonio 191. Montalvo Alicea, Amado 192. Montalvo Montalvo, Antonio 193. Montanez Ortiz, Aurea E. 194. Montero Ramirez, Jorge L. 195. Montes Mendez, Exor 196. Morales, Felipe 197. Morales, Victor Manuel 198. Morales Lozada, Carpio 199. Melecio Diaz, Joaquin 200. Morales Mediavilla, Rafael 201. Morales Pereira, Edwin 355 EL MUNDO CORP. 202. Morales Vega, Natanel 203. Moreno Algarin, Guillermo 204. Moreno Arroyo, Carlos 205. Morgado San Inocencio, Jesus 206. Muniz Correa, Israel 207. Munoz Jimendez, Miguel 208. Muriel Pizarro, Angel L. 209. Narvaez de Ortiz, Delia 210. Negron Lopez, Jesus 211. Negron Ortiz, Jose Luis 212. Nieves, Miguel A. 213. Mogueira, Rafael 214. Noguet Irizarry, Pedro 215. Ocasio Martinez, Feliz 216. Ocasio Matos, Israel 217. Olaguibel Ramirez, Roberto 218. Oquendo Alejandro, Victor 219. Orengo Marti, Hector Luis 220. Ortiz, Jaime L. 221. Ortiz Figueroa, Reynaldo 222. Ortiz Garcia, Jorge L. 223. Ortiz Mercado, Nellie 224. Ortiz Otero, Bienvenido 225. Ortiz Santini, Irma V. 226. Ortiz Torres, Lydia 227. Ovalle Lunas, Cristobal 228. Oyola Rivera, Samuel 229. Pacheco Rodriguez, Nelson 230. Padilla, Edwin 231. Padilla Rivera, Anthony 232. Padilla Rivera, William 233. Pagan Ayala, Hector 234. Pastrana Rosa, Gilberto 235. Pena Arzuaga, Arturo 236. Perez Castro, Fedora 237. Perez Mamondi, Franklin A. 238. Perez Miranda, Melvin 239. Perez Oquendo, Jose A. 240. Perez Perez, Lydia 241. Perez Vizcarrondo, Orlando 242. Pietri Romero, Radames 243. Pina Ramos, Hector 244. Pinero Lauer, Efrain 245. Pinero Medina, Deliz 246. Pineiro Seda, Miguel A. 247. Ponce Cotto, Carlos 248. Quijano Vega, Jose A. 249. Quiles Diaz, Carmen 250. Quinones Baez, Alberto 251. Quinones Colon, Angel 252. Ramirez, Victor 253. Ramos, Edelmiro 254. Ramos de Alvarez, Andrea 255. Ramos de Alvarez, Andrea 256. Ramos Lopez, Juan R. 257. Romos Ortiz, Nestor 258. Ramos Rodriguez, Enrique 259. Ramos Rosa, Carlos 260. Ramos Rosado, Edgar 261. Reyes Fernandez, Jose Manuel 262. Rios Ibarra, Jaime 263. Rios Oliveras, Jose 264. Rivas Santiago, Hector 265. Rivas Santos, Juan 266. Rivera, Ana M. 267. Rivera, Angel Luis 268. Rivera, Eduardo 269. Rivera, Jose E. 270. Rivera, Jose Joaquin 271. Rivera, Luis 272. Rivera, Maria de L. 273. Rivera, Rafael 274. Rivera Aviles, Santiago 275. Rivera Castellano, Angel Luis 276. Rivera Cosme, Jorge 277. Rivera Corraliza, Pablo 278. Rivera Figueroa, Miguel A. 279. Rivera Flores, Rosario 280. Rivera Garcia, Luis 281. Rivera Marrero, Edgardo 282. Rivera Ortiz, Santos 283. Rivera Otero, Miguel 284. Rivera Rivera, Fernando Luis 285. Rivera Santiago, Carlos 286. Rivera Santiago, Hector L. 287. Rivera Santos, Ramon 288. Rivera Sierra, Wilfredo 289. Rivera Vargas, Adalberto 290. Rivera Vega, Ramon L. 291. Robinson Cox, Edwin 292. Robles, Blanca M. 293. Rodriguez, Dolores 294. Rodriguez, Edith V. 295. Rodriguez, Ramon 296. Rodriguez, Jose Israel 297. Rodriguez Alicea, Fidel 298. Rodriguez Baez, Francisco 299. Rodriguez Bello, Evelyn 300. Rodriguez Diaz, Ernesto 301. Rodriguez Millan, Jose A. 302. Rodriguez Miranda, Jose E. 303. Rodriguez Perez, Agustin 304. Rodriguez Perez, Elias 305. Rodriguez Ramos, Enrique A. 306. Rodriguez Santana, Israel 307. Rodriguez Vazquez, Luis 308. Roig Mejia, Salvador 309. Rojas Cummings, Arnaldo 310. Rojas Rodriguez, Luis 311. Rolon Rosa, Juan 312. Roman, Gloria 313. Roman Bonet, Anibal 314. Roman Medina, Pablo 315. Roman Mestry, Bonifacio 356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 All following dates will be in 1987 unless otherwise indicated. 316. Roman Perez, David 317. Romero Arrocho, Julio J. 318. Romero Cuevas, Luis 319. Romero Melecio, Victor 320. Saez Caraballo, Francisco 321. Saldana Puente, Annie 322. Salas Lopez, Eduardo 323. Salgado, Mariano 324. Sanchez, Jose Luis 325. Sanchez, Juan Ramon 326. Sanchez Albert, Francisco 327. Sanchez Cartagena, Domingo 328. Sanchez Concepcion, Margarita 329. Sanchez Dieppa, Jose Raul 330. Sanchez Guzman, Juan 331. Sanchez Puchales, Anibal 332. Sanchez Quinones, Ivan 333. Santaella Soto, Leoncio 334. Santana Natos, Pedro R. 335. Santiago, Gladys E. 336. Santiago, Hipolito 337. Santiago, Jesus M. 338. Santiago, Miguel 339. Santiago, Ruben 340. Santiago, Victor Luis 341. Santiago Irizarry, Miguel 342. Santiago Martinez, Gilberto 343. Santiago Rodriguez, Hector 344. Santiago Rodriguez, Jose E. 345. Santiago Rodriguez, Victor 346. Santiago Soto, Salvador 347. Santiago Vidal, Migdalia 348. Santos Cintron, Pablo 349. Santos Negron, Samuel 350. Santos Ramos, Hector 351. Santos Santiago, Luis Alexis 352. Serrano, Carlos 353. Silva, Claudio 354. Sola Gomez, Jose 355. Solano Correa, Amalia 356. Soto Aquino, Wilfredo 357. Soto Rolon, Rosario 358. Soto Santiago, Francisco 359. Tirado Negron, Fortunato 360. Torres, Luis A. 361. Torres, Ruben Dario 362. Torres Anaya, Osvaldo 363. Torres Curz, Domingo 364. Torres Droz, Edelmiro 365. Torres Fernandez, Victor M. 366. Torres Gonzalez, Juan 367. Torres Lora, Eddie 368. Torres Lugo, Hector 369. Torres Maldonado, Max 370. Torres Medina, Nestor 371. Torres Mendez, Francisco 372. Torres Montalvo, Zulma 373. Torres Ortiz, Victor 374. Torres Ramos, Victor M. 375. Torres Reyes, Nelson 376. Torres Soto, Israel 377. Toro Vazquez, Jesus 378. Tricoche Rivera, Jose 379. Vaello, Ramon F. 380. Valentin Castro, Carlos F. 381. Valentin Castillo, Carlos F. 382. Valentin Medina, Enrique 383. Vargas, Efrain 384. Vargas Badillo, Jose E. 385. Vargas Lopez, Milton David 386. Vargas Sales, Adolfo 387. Vargas Valentin, Angel Luis 388. Vazquez, Jose Ramon 389. Vazquez Diaz, Ramon 390. Vazquez Goden, William 391. Vega Agosto, Ruben 392. Vega Sierra, Raul 393. Velazquez Diaz, Tomas 394. Velazquez Ortiz, Daniel 395. Velez Aleman, Carlos Juan 396. Velez Pena, Ramon 397. Velez Reyes, Rogel 398. Velez Santiago, Haydee 399. Vigo Zenon, Juan A. 400. Vielella Diaz, Jose Javier 401. Villahermosa, Astroberto 402. Villanueva Maldonado, Angel 403. Villodas Rivera, Teofilo 404. Zapata Torres, Norman Antonio F. Santos, Esq. and Raymond E. Morales, Esq., for the General Counsel. Miguel A. Palou, Esq. and Yolanda Toyos, Esq., of Hato Rey, Puerto Rico, for the Respondent. Ginoris Vizcarra DeLopz-Lay Esq., of Santurce, Puerto Rico, for the Charging Party. Tristan Reyes-Gilestra, Esq., of San Juan, Puerto Rico, for Fundacion Angel Ramos, Inc. DECISION STATEMENT OF THE CASE RICHARD H. BEDDOW, JR., Administrative Law Judge. This matter was heard in Hato Rey, Puerto Rico, on August 1 and 3, 9–12, 15–18, September 7–9, and 12–16, 1988. The proceeding is based on charges filed December 29, 1987,1 and March 16, 1988, as subsequently amended, by Union de Periodistas y Artes Graficas y Ramas Anexas de Puerto Rico, Local 225, a/w The Newspaper Guild, AFL–CIO, CLC. The Regional Director’s consolidated complaint dated April 29, 1987, as subsequently amended, alleges that Respondent, El Mundo Corporation (previously known as Worldwide Man- agement Corporation), of Hato Rey, Puerto Rico, is a succes- sor of El Mundo, Inc. and that it violated Section 8(a)(1) of 357 EL MUNDO CORP. the Act by: instructing its employees to cease engaging in union activities and threatening its employees with unspec- ified reprisals if they engage in union activities; informing its employees that Respondent would not hire any former em- ployees of Respondent’s predecessor, El Mundo, Inc., or em- ployees who were members or representatives of the Union; stating that it was limiting its hiring of employees rep- resented by the Union; informing its employees that working nonunion was a condition of employment and conditioning the hiring of employees on their refraining from engaging in union activities; requesting its employees to recruit employ- ees for hire who were not members of the Union; informing its employees that it would not reinstate those employees whom it had discharged because of their union activities; stating that it would prevent the Union from representing its employees; and interrogating employees about the employ- ees’ sympathies for the Union; that Respondent violated Sec- tion 8(a)(1) and (3) of the Act by refusing to consider for employment and to employ the employees who were pre- viously employees of El Mundo, Inc., because those employ- ees joined and supported the Union in order to avoid an obli- gation to recognize and bargain with the Union as the legal successor to El Mundo, Inc., and by discharging Roberto Jusino because he joined and supported the Union and en- gaged in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection; and that Respondent violated Section 8(a)(1) and (5) of the Act by re- fusing to recognize and bargain with the Union in good faith and by unilaterally modifying or eliminating the wages, ben- efits, and terms and conditions of employment. Subsequent to an extension of the filing date, briefs were filed by the General Counsel, Respondent, and the Charging Party. On a review of the entire record in this case and from my observations of the witnesses and their demeanor, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a Delaware corporation. It admits that at all times material it is and has been an employer engaged in op- erations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. It also admits that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. PROCEDURAL MATTERS—VIOLATIONS OF THE SEQUESTRATION ORDER In response to a request by the General Counsel, witnesses were sequestered pursuant to Rule 615 of the Federal Rules of Evidence, see Unga Painting Corp., 237 NLRB 1306 (1978), and all potential witnesses left the court room with the exception of designated representatives, specifically Union Representative Angel Baez and Respondent’s current personnel manager, William Cuevas. The General Counsel concluded his presentation of direct witnesses on August 17 and the transcripts of their testimony were available to the parties when the hearing resumed on September 7. During cross-examination by the General Counsel, Respondent’s witnesses (except Patricia Eaves and Jose A. Avila) testified that they had been given a copy of the transcript as part of their trial preparation in order to read portions of the testimony of witnesses presented by the Gen- eral Counsel. The most revealing testimony in this regard was that of Circulation Manager Graciliano Sostre (who initially had been called as a hostile witness by the General Counsel). Sostre testified that Toyos, Respondent’s co-counsel, pro- vided him with the testimony of Roberto Jusino. He was also given the testimony of Subscription Manager Rafael Negron which had been given during a 10(j) proceeding at the United States District Court that was held between August 23 and 25. Sostre admitted discussing his testimony with Negron at the District Court. Sostre further admitted that he invited Negron to his office to discuss the testimony given by the witnesses, and to discuss their own testimony between themselves. After they finished, Sostre gave Negron a copy of the testimony given by Jusino and asked Negron to meet with Respondent’s city manager, Angel Noriega, to discuss the testimony. Negron denied meeting with Noriega to show him the transcript of the testimony of Jusino and Negron; however, Sostre said that he saw both Negron and Noriega meet for that purpose at Negron’s office and Negron admit- ted that Attorney Toyos gave him a copy of the transcript of the testimony of Jusino, Moreno, and Pablo Roman. Moreover, Negron admitted that he met on several occasions with both counselors Palou and Toyos to discuss Sostre’s and Noriega’s testimony and that during some of these meet- ings other witnesses for the Employer were present. The record shows that either Attorney Palou or Toyos (or both) provided copies of the transcripts and participated in contemporaneous discussions with Respondent’s witnesses and that witnesses read the testimony of other witnesses, and discussed it amongst themselves. Specifically, Production Manager Orlando Santos Leon testified that Attorneys Palou and Toyos showed him the transcript of the testimony of sev- eral witnesses who already had testified. Editor Luis Villares testified that he was shown by counsel the testimony of two witnesses that had previously testified at the hearing. Cesar Rodriguez testified that Respondent’s attorneys gave him a copy of the testimony to read of a witness who had pre- viously testified at the hearing, and had mentioned his name. Also, Chief of Photography Edwardo Figueroa admitted meeting with counsel and being shown the transcript testi- mony of a prior witness as did Jose Ivan Aldea and Luis Villares. Orlando Santos and Cesar Rodriguez were shown tran- scripts of other witnesses and met with Attorneys Palou and Toyos, respectively, prior to testifying. Rodriguez is Re- spondent’s computer supervisor, who reports to Jose Avila, the MIS Manager. Avila and Advertisement Department Head Patricia Eaves both denied that they were given a copy of the transcript to read, however, I agree with the the Gen- eral Counsel’s contention that in light of Respondent coun- sel’s meticulous habit of showing the transcript to his wit- nesses, it is highly improbable that he would not have shown the transcript to these two persons. These witnesses other- wise admit to meeting with counsel as well as with Personnel Director Cuevas, who was present during most of the earlier testimony, and, accordingly, I do not credit their denials re- garding their awareness of the testimony of other witnesses. Respondent contends that the parameters of the sequestra- tion order, as applicable to the Respondent, were not defined in such a way as to prohibit the reading of transcripts by po- 358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tential witnesses. It also argues that the General Counsel has made no showing of prejudice and that, accordingly, the ex- clusion or disallowance of a witness testimony is not war- ranted. It also argues that the evidence presented by Re- spondent as it pertains to the portions of the transcript made available to his witnesses related to matters involving, for the most part, the rebuttal of the testimony presented by General Counsel’s witnesses. It then contends that rebuttal witnesses do not fall within the sequestration rule, citing Hughes v. State, 148 S.W. 543, and U.S. v. Hall, 653 F.2d 1002, 1006 (1981). First, I find that the evidence subject to the General Coun- sel’s motion is not rebuttal evidence but direct evidence of the Respondent’s case in chief. Moreover, the Hall case cited by Respondent was a criminal case not involving sequestra- tion and is not applicable to the present situation. The purpose of sequestration is to preclude communication among witnesses in order to enhance the probability that they will each tell their own recollection of events, uninfluenced by contemporaneous accounts by other persons. The primary and most direct method of communication precluded is the direct observation of and listening to any other witnesses’ testimony prior to the time a subsequent witness is called to testify. Witnesses also are precluded from discussing their testimony or that of others among themselves. Clearly, an at- torney or other person also is precluded from telling present and future witnesses what past witnesses have said when they testified under a sequestration order. Communication through the means of allowing witnesses to read the tran- scripts of the testimony of previous witnesses generally is not possible in short or moderate length proceedings; however, it is not uncommon for recesses to occur between the presen- tation of the General Counsel’s case and that of a respond- ent. The same harm to the reliability of the record occurs re- gardless of the method of communication and such a disclo- sure of testimony must be considered to be equally violative of a sequestration order. Here, the evidence regarding witness Sostre clearly dem- onstrates the corruption of the record that can occur through the violation of the sequestration order. Sostre admitted his version of how the hiring of Jusino occurred changed after discussing that subject with Negron. Sostre testified on direct examination during the morning of September 13 and changed that afternoon. Sostre admitted changing his version due to the fact that he had passed a note to Negron, which evidently happened during the lunchbreak, a time when Sostre was under constraint not to discuss his testimony with anyone. It is evident that Negron must have answered Sostre’s note and must have spoken with Sostre because that incident was what prompted Sostre to change. The testimony of the vast majority of the Respondent’s di- rect witnesses is tainted by inherent untrustworthiness as a result of the clear and repetitious violations of the sequestra- tion order. This is born out by the brief analysis of testimony set forth above which demonstrates equivocal and internally contradictory testimony as well as apparent collusion, distor- tion, and coloring or tailoring of testimony. Moreover, this all occurred with the knowledge and assistance of Respond- ent’s attorneys. The likelihood that such testimony is unreli- able is so substantial that it equates to a showing that the General Counsel and the Charging Party have been preju- diced by the overriding effect that such testimony could have on the development of a truthful and complete record. Violation of a sequestration order on a minor scale often can be disposed of by treating the matter solely as an unfa- vorable reflection on credibility. Here, however, the record presents innumerable factual issues that stand to be resolved based substantially on the credibility of witnesses and, as pointed out by the General Counsel and the Charging Party, the violations of the sequestration order are not singular or isolated but are substantial, pervasive, and prejudicial. In this proceeding the Respondent and its attorneys have utilized the extraordinary tactic of having future witnesses review tran- scripts of past testimony, either unmindfully or in disregard of a sequestration order. I conclude that such conduct goes beyond the reasonable bounds of proper trail preparation and supports an inference that testimony generated under these circumstances has been so altered or tailored as to be ren- dered inherently unreliable. Although the usual remedy for violation of a sequestration order is to not credit the challenged testimony, see Zartic, Inc., 277 NLRB 1478 (1986), and the Unga case supra, it is properly a matter within the discretion of the trial court to allow or disallow such testimony, see United States v. Or- tega-Chaves, 687 F.2d 1086 (1982). Here, the record dem- onstrates repeated and pervasive violations made with the concurrences and assistance of counsel and, under such cir- cumstances, I find that proper cause has been shown to jus- tify a grant of the relief requested in the General Counsel’s motion. Accordingly, the motion is granted and I order that except to the extent that admission against interest were made, the testimony of all witnesses who violated the se- questration order be, and it is stricken. III. PRELIMINARY MATTERS By an informative motion dated February 9, 1989, this ad- ministrative court was informed of the decision of the United States District Court in Mary Zelma Associate v. El Mundo Corporation a/k/a Worldwide Management Corporation, Civil No. 88–1338, dated February 3, 1989, wherein the court granted an injunction pursuant to Section 10(j) of the Act on matters substantially parallel to those pending final decision in this administrative proceeding. In a telephone conference call held on February 28, 1989, it was disclosed that the Respondent was acting to comply with the District Court’s Order and, among other things, had recognized the Union. Accordingly, a time period was established to allow the parties to explore the possibility of settlement, the partial resolution of some outstanding issues, or identification of possible differences with the court’s factual findings. By mo- tion dated March 30, 1989, this court was informed that dis- cussions occurred but that no agreements were reached. No further representations were made by any party. In accordance with the request of the General Counsel, ap- propriate notice is taken of the District Court’s opinion. The court’s opinion is based on 50 factual findings. Most of these facts are substantially the same as the 49 stipulations entered into by the parties and reflected in Joint Exhibit I. Otherwise, the parties did not identify any specific differences with the findings of the court and, on my review, I find them to be consistent with the record in this proceeding and they are adopted and, as pertinent, set forth or incorporated in the fol- lowing description of facts. 359 EL MUNDO CORP. IV. THE ALLEGED UNFAIR LABOR PRACTICES This proceeding involves the labor-management relation- ship at two separate business entities: El Mundo, Inc. and El Mundo, Corp., each engaged in the publication of a daily Spanish newspaper in Puerto Rico called ‘‘El Mundo.’’ The first entity, El Mundo, Inc., was formed in 1919 and operated until August 30, 1987, when it stopped its publishing oper- ations, and terminated almost all of its employees. At that time ownership and control of El Mundo, Inc., rested in the hands of Fundacion Angel Ramos, Inc. The newspaper and the Union were engaged in lengthy contract negotiations that had cumulated on or about August 15, in a membership re- jection of a proposed bargaining agreement. On August 19, the directors of the Fundacion acknowledged that inquiries regarding the purchase of the newspaper had been received from Hector L. Gonzalez and they decided that if no sale was consummated within a reasonable time the newspaper would be closed. The record otherwise shows that Gonzalez first expressed his interest in purchasing the newspaper in a letter to El Mundo, Inc., dated November 26, 1986, in which he stated his assurance that: [M]y interest and purpose is to insure that El Mundo continues, as it has in the past, to serve our island as a totally independent and courageous newspaper. Since its certification in 1962 the Union has been the ex- clusive bargaining representative of employees in the admin- istration, maintenance, editorial, production, and circulation departments. Since 1964 several collective-bargaining agree- ments were reached, the last one of which was executed on September 6, 1985. That agreement expired September 30, 1986, but work continued thereafter under the existing con- tract terms. Subsequently, numerous bargaining sessions were held, with agreements being reached on at least 12 articles, however, major issues remained, including the Employer’s demand to subcontract unit work, essentially a proposed reor- ganization of the circulation and transportation department that would convert union employees to independent agents, excluded from the unit, and the consolidation of certain job classifications, proposals that each would involve the layoff of some employees. The Employer’s proposals anticipated savings of approxi- mately $5 million. The Union’s counterproposals, provided cost reduction of $3 million, but provided that the employees of the circulation department were to remain as part of the unit (with some necessary lose of jobs) in a reorganization along the lines of a similar reorganization at the circulation department at El Vocero, another newspaper in Puerto Rico, whose employees are also represented by the Union. During the latter negotiations the Employer’s spokesman was coun- sel Miguel Palou, who subsequently represented the interest of Gonzalez and El Mundo Corp. in regard to labor matters. On August 21, a meeting of principals and the Common- wealth’s Department of Labor planned to discuss the impact of the threatened closing became a meeting with Gonzalez who announced his interest in buying the newspaper. At that time Gonzalez, was the 100-percent stockholder of World- wide Management, Inc., an entity which subsequently be- came El Mundo, Corp. Gonzalez was known to the Union as a substantial stockholder of El Reportero de Puerto Rico, Inc., an entity that previously had published a newspaper and whose employees were represented by the Union. Two days earlier, at a meeting of the Fundacion, the board of directors were advised that the Union had rejected El Mundo, Inc.’s proposed labor contract and that inquiries for purchase of the newspaper had been received from Gonzalez and another party. The Board concluded that if no sale was consummated within a reasonable period of time, the news- paper would be closed down. On August 21, Gonzalez met with union representatives and assured them of his interest in keeping the El Mundo newspaper operating and his interest in reaching an agree- ment with the Union prior to a purchase. He indicated that he would assume a successor position and would voluntarily assume the predecessor’s responsibilities toward the Union. At a meeting on August 22, Gonzalez told the Union that he had no problem with extending the expired collective-bar- gaining agreement. However, Gonzalez requested that it be extended for 18 months, rather than 12, and the Union agreed. On August 24, Gonzalez submitted a memorandum of un- derstanding to the Union which stated the proposed terms and conditions including those pertaining to subcontracting and the Union’s commitment to withdraw its complaints. In a letter dated August 25, Gonzalez advised the Union that he had met with them to negotiate because he was interested in buying the newspaper, was pleased with the negotiations with the Union, and discussed the items agreed on which were to be included in the collective-bargaining agreement. On August 30, El Mundo, Inc. closed its publication oper- ations and terminated almost all the employees included in the unit. (Most of the employees subsequently received sev- erance payments pursuant to the provisions of the collective- bargaining agreement.) The next day Gonzalez held a press conference and announced that in 2 or 3 weeks he was going to open a new newspaper similar to U.S.A. Today. At the same time he hired approximately 20 former El Mundo, Inc. employees for the editorial department of the new venture. The next day, however, Gonzalez arranged a meeting with Baez and informed him that he was still interested in pur- chasing El Mundo and wanted to know whether the Union was willing to reach an agreement with him. Baez told Gon- zalez that the Union was willing to help him. The next day Gonzalez met with the Union’s bargaining committee and in- formed them of his continued interest in purchasing El Mundo but conditioned his action on the Union’s withdrawal of pending unfair labor practice charges at the Board and other pending court cases. By resolution dated September 3, the Union agreed to withdraw all pending charges. On September 4, Gonzalez made an offer to Fundacion for the purchase of the El Mundo, Inc. stock for $3 million; $1.5 million payable at closing and the balance in six consecutive annual installments. On September 5, Gonzalez and the Union’s bargaining committee met to discuss an agreement and Gonzalez ex- plained his intention of continuing the paper, as restructured, to make it a viable operation. This theme was repeated to an assembly of the union membership held on September 10, where Gonzalez spoke of his commitment to keep the news- paper operating and stated that he had been engaged in pro- ductive talks with the Union and that there were no obstacles remaining for the purchase of the stock. 360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Former reporter Maritza Diaz-Alcaide testified that during this period of time she was asked to work for a new news- paper that was being organized and did so at a facility owned by Gonzalez, along with approximately 12 other El Mundo people. She also said that several days after she started Gon- zalez spoke with the group and told them he was still inter- ested in buying El Mundo and that the group would be part of his new team. She also named four of this group that be- came subsequent employees of the Respondent; however, she took a position with a news agency operated by the govern- ment of Spain. As otherwise discussed below, this paper with a suggested title, ‘‘Hoy,’’ was a fledgling newspaper pub- lishing venture developed by Gonzalez as an alternate course of action should he fail in his efforts to negotiate a purchase of the El Mundo newspaper. Director of Photography Eduardo Figueroa also named several specific other El Mundo, Inc. employees who worked for ‘‘Hoy’’ (and were paid by one of Gonzalez’ companies), during the interval between August 30 and November 9 and were subsequently hired by the Respondent on or after No- vember 9. On September 11, Gonzalez made a payment of $1,500,000 to the Fundacion and on September 14, he told Baez that he had reached an agreement with Fundacion and wanted to clarify certain matters with the Union. The parties met on September 15, and discussed the call back of employees. Gonzalez ended the meeting in order to prepare a letter to the Union. That evening Respondent’s at- torneys, Miguel Palou and Noel Gonzalez, delivered a letter to the Union with a proposal for a new agreement to be ef- fective once the sale of the newspaper stock took place, how- ever, the proposal differed from positions previously assumed which the Union felt had been already agreed to by the par- ties, positions that had been ratified by the employees at their September 10 assembly. On September 17, the parties met again and discussed the modifications to the agreements and the new matters raised by the Employer but reached no agreement. That evening Jose Ivan Aldea, an agent for Gonzalez, verbally notified the Union of the names of the employees of El Mundo, Inc., who would be recalled to work on Respondent’s commence- ment of publication and said that an additional 110 employ- ees from the circulations department would be recalled. In addition, he said 24 former employees from El Mundo, Inc., would be offered independent contractor positions at the cir- culation department. The breakdown of employees that were going to be recalled in each department was as follows: Editorial 31 Maintenance 6 Advertisement/Sales 4 MIS 4 Production 28 Accounting 10 Circulation 110 Personnel and Transportation 0 Administrative Services 4 The parties met and discussed their differences, however, they were unable to reach an understanding and, on Sep- tember 21, the Union issued a press release stating that the reopening of the newspaper might not come through and that Gonzalez was backing away from his original position. On September 26, Gonzalez drafted a letter to Fundacion stated the terms of the purchase of stock of El Mundo, Inc., however, the word ‘‘stock’’ is crossed out and replaced by the word ‘‘assets.’’ This was followed with an offer for the purchase of assets made by letter dated September 28. A Fundacion board of directors meeting was held on October 7, 1987, and the sale of assets to Gonzalez was approved. On November 8, 1987, El Mundo, Inc. and Worldwide Management Corporation executed an Asset Purchase Agree- ment whereby Respondent purchased the assets and business of El Mundo, Inc., and executed a lease agreement whereby Respondent leased the premises where the newspaper had been operating. Previously, on November 2, Jose Ivan Aldea had prepared a memorandum for Gonzalez on employee staffing with the planned salaries, fringe benefits, and organization of the newspaper. Beginning on or about November 9, Respondent began assembling a staff and preparing to publish a news- paper. In the period between November 9 through December 16, 1987, Respondent employed 20 supervisors 8 of which had previously been employed by El Mundo, Inc., it em- ployed 36 employees 16 of which had previously been em- ployees of El Mundo, Inc., and it employed 20 area super- visors 11 of which had been previously employees of El Mundo, Inc. As of December 21, 8 of 21 supervisors and 18 of Respondent’s 45 employees had been previously em- ployed by El Mundo, Inc. Additional details concerning various events surrounding the assembly of the newspapers staff are set forth below. In addition, it is noted that between November 9, 1987, and Au- gust 5, 1988, Respondent hired 3 former El Reportero em- ployees as area supervisors and 17 former El Reportero em- ployees for other positions. On December 4, Sergio Camero, Respondent’s president, prepared a memorandum on employee recruitment by depart- ment, position, and names (for those positions already filled), and projections as to when certain positions had to be filled. He noted that adjustments might have to be made since the plan had been designed with the full production of the enter- prise in mind. On December 16, the Union requested a meeting with Gonzalez to discuss the terms and conditions of employment of the employees, according to the conversations and agree- ments that had taken place prior to the purchase. Gonzalez replied by letter dated December 21, and stated that since he had unsuccessfully tried to purchase the shares of the newspaper and that since probably less than 25 percent of the new employees would involve former employees, it was his understanding that the Union was not a majority, and thus, it could not be imposed on the employees. The Union filed its first unfair labor practice charge on December 29. The Respondent published its first newspaper on January 6 and 8, 1988, Respondent changed its name from Worldwide Management Corporation to El Mundo Cor- poration, the name by which it is presently known. V. DISCUSSION The alleged unfair labor practices are the outgrowth of the closing of one business and the opening of another similar enterprise. This was accompanied by irregular hiring prac- 361 EL MUNDO CORP. tices and a failure to recognize the Union that represented the employees of the closed business. The several issues and ad- ditional factual findings will be further discussed in the fol- lowing subsections. A. Successor Status The traditional standard for the evaluation of successor sta- tus and of the resulting, concomitant duty of a successor em- ployer to bargain with a union that represents the prede- cessor’s employees, derives from the decision of the Su- preme Court in NLRB v. Burns Security Services, 406 U.S. 272 (1972). In determining whether a purchaser is obligated to bargain with the exclusive representative of its predecessor’s employ- ees, the basic test is whether there is substantial continuity in the employing enterprise. Where there is such a continuity, the presumption of majority status by the Union under the predecessor is not affected by a change in ownership. The traditional criteria for this test includes whether there has been substantial continuity in the following: (1) business op- erations; (2) plant; (3) work force; (4) jobs and working con- ditions’ (5) supervisors; (6) machinery, equipment, and meth- ods of production; and (7) product or service. See Aircraft Magnesium, 265 NLRB 1344 (1982). Applying these well- settled criteria to the totality of the circumstances here, it is concluded that Respondent is a successor. Respondent’s argument to the contrary relies primarily on an attempt to distinguish the decision in Fall River Dying Corp. v. NLRB, 482 U.S. 27 (1987). In this case the Supreme Court states that a purchaser succeeds to the predecessor em- ployer’s existing obligation to recognize and bargain with an incumbent union that represented a unit of the predecessor’s employees if the purchaser acquires ‘‘substantial assets of its predecessor and continue[s], without interruption or substan- tial change, the predecessor’s business operations,’’ and if a majority of the new employer’s unit employees were em- ployed by the predecessor. Specifically, Respondent points out that it made major changes in the circulation department by utilizing inde- pendent contractors rather than employees driving company vehicles for the distribution of the paper, that it changed the number and identity of substantial numbers of supervisors, that there was a hiatus in operation for 4 months, and that it has not hired a majority of its work force from former em- ployees. The record here shows that since Respondent first became interested in purchasing the newspaper, it made repeated rep- resentations that no matter how the purchase would take place, its plan was to continue publication of the oldest newspaper in Puerto Rico without any major interruption or any substantial changes and that it realized that it was going to become a successor Employer and would have to deal with the Union. Although Respondent changed its plans from a stock purchase to an asset purchase agreement, it purchased substantially all the assets of El Mundo, Inc., including the press, machinery, equipment, motor vehicles, furniture and fixtures, inventory, office supplies and equipment, periodicals and newspaper library, photo library, research data, computer programs and software, accounts receivable, customer list, agent lists, trademark, trade names, service marks, copy- rights, and patents, including the name ‘‘El Mundo,’’ and its rights, title and interests in leases, security deposits and con- tracts. And, on the same date as the purchase, Respondent also executed a lease agreement whereby it leased the same building and real estate previously used by El Mundo, Inc. to conduct its business operations. Although the paper was not published for a 4-month pe- riod, Respondent started hiring employees after 2 months and when the newspaper resumed publication it had the same name, format, and basically the same sections and organiza- tion. During the first week of publication Respondent contin- ued publishing the information that the newspaper had been founded in 1919, the date when El Mundo, Inc. was founded, and Respondent also used the motto used by El Mundo, ‘‘Truth and Justice.’’ Respondent also used the job applica- tion forms, contract forms with carriers and other office pa- pers used by El Mundo, Inc. together with its name, logo, and address. Only subsequently did it make minor changes. As pointed out by the Respondent, changes in the circula- tion department were made, however, these changes were matters that were proposed by Respondent in discussions with the Union during August and September, when it was pursuing a purchase of its predecessor’s stock and such changes are not inconsistent with successorship status. In a similar vein, the hiatus in production totaled only 4 months and, otherwise, at Respondent’s request some em- ployees continued nonproduction task until at least Sep- tember 18, in order to maintain presses and equipment and it initially planned to resume publication sometime in the third or fourth week of September. Meanwhile, Gonzalez also hired a group of at least a dozen employees to prepare for possible publication of another newspaper (‘‘Hoy’’). After the asset purchase was agreed to, Respondent again made plans to start publication in October, and at successive intervals thereafter a number of employees were hired begin- ning in early November, as soon as the purchase agreement was executed and only 2 months after the last publication by its predecessor. The work force did change in some respects, both with re- spect to supervisors and employees, however, as of Decem- ber 16, when the Union requested a meeting with Respond- ent, 27 of 56 nonsupervisory employees (including ‘‘area su- pervisor’’ positions) were previous employees (48 percent), and 8 of 20 supervisor positions were filled by persons who had worked for the predecessor. As the staffing increased to a total of approximately 147 nonsupervisory employees on February 25, 1987, some 52 or approximately 35 percent were exemployees. As otherwise discussed in section E below, the record supports a finding that the Respondent en- gaged in discriminatory hiring practices in an effort to avoid the employment of a majority percentage of former employ- ees and, therefore, it is appropriate to infer that, but for its discrimination, Respondent would have hired or retained the predecessor’s employees. Here, it is clear that the former El Mundo Inc. facility is being operated by Respondent for the same purpose, publica- tion of a newspaper. This newspaper carries the same name and is specifically presented to the public in a manner de- signed to convey the impression that it is a continuation of the paper first established in 1919 by its predecessor. This impressing is consistent with the representations that were re- peatedly made prior to Respondent’s letter of December 21, when it first informed the Union that Respondent would not recognize it as the representative of the majority of employ- 362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 And, despite the change to so called ‘‘independent agents’’ for the circula- tion department these agents perform the same functions previously performed and such agents status does not preclude union representation, inasmuch as similar agents have been included in the bargaining unit as a matter of practice in other area newspapers, including El Reportero. 3 As noted by the General Counsel, the record shows that Respondent began hiring employees on November 9 and that, accordingly, its obligation to recog- nize and bargain with the Union started on that day. See Love’s Barbecue Res- taurant, 245 NLRB 78, 82 (1979). ees. Although some minor changes in the paper’s masthead were made several days after it first resumed publication, it has the same format, syndicated features, advertisers, and customer base. Despite the corporate change and the decision that the purchase took place through a purchase of assets, rather than stock, only minor changes in plant operations oc- curred. Except for its change in the method of distribution,2 Respondent otherwise uses the same printing process with many, although fewer, former employees performing the same or similar functions. As noted, no significant hiatus oc- curred before organizational operations and subsequent re- publication began and, under the totality of circumstances, I find that the General Counsel has shown both substantial continuity and an inferred retention of a majority of exemployees. Accordingly, I therefore conclude that El Mundo Corp. (formerly known as Worldwide Management Corporation), is a successor employer to El Mundo, Inc., and, as such it has an obligation, on demand to bargain in good faith with the Union. B. Refusal to Recognize and Bargain with the Union As noted on December 16, the Union requested that Re- spondent honor agreements previously reached on September 10, and requested that it recognize and bargain with the Union. Respondent refused to do so and, accordingly, I find that it violated Section 8(a)(1) and (5) of the Act, as al- leged.3 C. Unilateral Changes It is admitted by Respondent that it has instituted unilat- eral changes in wages, benefits, and terms and conditions of employment different from those previously established by collective bargaining between the Union and its predecessor. These changes include substantial reductions in the wages and benefits of its employees and changes in their working conditions. Another significant change is in the operation of the circulation department where the distribution function was subcontracted to so-called ‘‘independent contractors.’’ The record shows that during negotiation after El Mundo, Inc. stopped publication the Respondent was willing to give the employees the same wages, benefits, and terms and con- ditions of employment established in the prior collective-bar- gaining agreement. Although the Union and Respondent had some dispute as to other matters (specifically severance pay and consolidation of work), and the Respondent bargained with the Union about subcontracting, the Union had no major objection to an agreement regarding the subcontracting of the unit work under the condition that the ‘‘independent contrac- tors’’ would be included in the bargaining unit as they are in other newspapers in Puerto Rico and Respondent then agreed not to subcontract any unit work except in the circula- tion department. When publication resumed, Respondent went forward with the contracting of independent contractors who otherwise were excluded from status as employees. This action a mandatory subject of bargaining and a change in a term and condition of employment. Where, as here, the record demonstrates a discriminatory hiring policy, there is a presumption that a successor em- ployer would have retained ‘‘substantially all’’ of the prede- cessor’s employees, had it not been for its discriminatory hir- ing policy. Under these circumstances, the purchaser is le- gally obligated not only to recognize and bargain with the Union that represented the predecessor’s employees, but to maintain the terms and conditions of employment which ex- isted under the predecessor until it bargains with the Union about any changes. See Kallman v. NLRB, 640 F.2d at 1102– 1103 (1981); and NLRB v. Amateyus, 817 F.2d 996 (1987). Here, the Respondent was well aware of its predecessor’s bargaining agreement, of its potential successorship obliga- tions, and of its own bargaining with the Union and their tentative agreements on substantial issues. The record, how- ever, shows that despite a request for bargaining from the Union, it resumed publication after making admitted unilat- eral changes in terms and conditions of employment. As Re- spondent is otherwise shown to be a Burns successor, I con- clude that its changes in this respect must be found to be in violation of Section 8(a)(1) and (5) of the Act, as alleged. D. Supervisors Section 2(11) of the Act defines a supervisor as: . . . any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such ac- tion, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical na- ture, but requires the use of independent judgment. The existence of any one element can be sufficient to con- vey supervisory status, however, sporadic or occasional exer- cise of supervisory authority is insufficient to make an em- ployee a supervisor. Also, investiture with a title and theo- retical power which may imply supervisory authority like- wise can be insufficient to transform a rank and file em- ployee into a supervisor. Here, the Respondent contends that the persons employed under the title ‘‘Area Supervisor’’ are either statutory super- visors or managerial employees. The circulation department is headed by a circulation manager, three area managers (di- rect sales manager, metropolitan area manager, and island manager), and two regional managers. Under the regional manager there are 22 ‘‘Area Supervisors’’ and two direct sales supervisors. Under the area supervisors there are 117 so-called independent contractors. All personnel matters regarding the independent agents are handled personally by the circulation manager. Area Super- visor Roberto Jusino testified that he was never given any written job description, however, he understood that his du- ties and responsibilities were to hire the carriers (who are not employees), assist the independent contractors in the collec- tion from the carriers, help carriers with the distribution of the newspapers, look for new subscribers, organize groups of carriers through different areas to increase sales, substitute 363 EL MUNDO CORP. for agents who were absent, distribute down routes, adjust the invoices until certain limits, and to prepare a report if any agent had an unusual decrease in sales. These were the same duties and responsibilities he had when he worked as a temporary employee at El Mundo, Inc., as a district man- ager, an employee position that was part of the bargaining unit (temporary employees, however, were not part of the unit). Although the area supervisor select the newspaper carriers, these persons are not company employees and the area super- visors do not set the compensation to be received by the independent contractors or the carriers nor do they independ- ently enter into contracts. They adjust invoices but do so ac- cording to a mathematical formula established by the con- tracts. They may make recommendations regarding possible candidates for independent contractor positions, but otherwise are not shown to make use of independent judgment or to exercise their own discretion. Here, the Respondent has raised the issue of the area su- pervisors’ status and therefore has the burden of proof to es- tablish that status, see Thayer Dairy Co., 233 NLRB 1383 (1977); however, it did not present testimony directed at this issue. Here, I find that the use of the term ‘‘supervisor’’ or ‘‘manager’’ is irrelevant and that the significant criteria dis- cussed above, as well as the past practices of Respondent’s predecessor, all lead to the conclusion that the position of area supervisor is not that of a ‘‘manager’’ or statutory su- pervisor within the meaning of Section 2(11) of the Act, see the Washington Post Co., 254 NLRB 168, 181–183 (1981). Accordingly, I further find that for all purposes relevant here, those positions now entitled as area supervisors (formerly district managers) are employee positions encompassed with- in the certified bargaining unit. Paragraph 6(a) of the complaint was amended during the hearing to allege supervisory status for Photography Director Eduardo Figueroa. Figueroa had been in a bargaining unit position as chief photographer when El Mundo, Inc. stopped publication on August 30, however, he was one of the first persons employed by Respondent on November 9. On Au- gust 1, 1988, he was also given the title of assistant to the president and it appears that he was understood by current and former employees to hold such a position during the fall of 1987. Figueroa testified that as photography director he was in charge of interviewing and hiring personnel for the photography division. Among the persons Figueroa hired were Mauricio Pascual and Cesar Silva. He also testified that between the time the newspaper closed and his employment by Respondent on November 9, he also worked for Hector Gonzalez on the formation of a newspaper to be called the ‘‘Hoy,’’ a venture that otherwise appears to have been an al- ternative plan for Gonzalez to reenter the publication field if he otherwise did not succeed in his negotiations to purchase the El Mundo newspaper. Reporter Maritya Diaz-Alraide tes- tified that Figueroa was represented to be and participated in a managerial role during this period. Under these circumstances, and, especially in view of Figueroa admitted functions and the criteria discussed above, I conclude that the General Counsel has persuasively shown that since November 9 Figueroa has been a statutory super- visor within the meaning of Section 2(11) of the Act, as al- leged. E. Alleged 8(a)(1) and (3) Violations After El Mundo ceased publication on August 30, Hector Gonzalez and companies under his control, including the Re- spondent here, engaged in an ongoing procedure directed at the goal of publishing a newspaper in place of or as a suc- cessor to El Mundo. The Respondent ultimately purchased substantially all the assets of El Mundo, Inc., and it acted to preserve these assets as soon as El Mundo, Inc. ceased publi- cation in order to be in a position to resume publication at an early date. After August 30, Gonzalez immediately began lining up the necessary editorial staff and the contingency de- velopment of the ‘‘Hoy’’ newspaper venture. Some core members of this group, both supervisors and employees, sub- sequently were hired as managers and employees of the Re- spondent, beginning November 9. Full staffing of the various managerial and operational po- sitions was an obvious prerequisite to republication and the Respondent, under the direction and control of Hector Gon- zalez, continued to develop a plan for efficient organization and operation. It organized the necessary departments and es- tablished minimal staffing requirement. This organization closely paralleled that utilized by the predecessor’s company, with the exception of changes in the means of distribution of the newspaper through the use of independent contractors, in lieu of employees, within the circulation department. During the period leading up to a final purchase agree- ment, Gonzalez repeatedly acknowledged the existence and valued contributions of the newspaper’s employees, his ex- pectations regarding their participation in continued publica- tion under his control, and an understanding of the Union’s position as the certified bargaining agent for the employees. On September 17 the names of 87 employees in departments other than circulation, and 110 employees from circulation were identified as those that would be recalled upon the reaching of an agreement. When no agreement was finalized, Gonzalez changed his purchase proposal to one reflecting the purchase of assets rather than stock and apparently estab- lished a strategy whereby it would attempt to pursue its pub- lication objective without continued recognition of the Union and with a more reduced staffing level. A memo reflecting the proposed staffing was prepared on November 2 and 1 week later hiring began. The manner in which Respondent and its agents conducted this hiring forms the basis for allegations that it engaged in discriminatory hiring practices and interfered with employ- ee’s Section 7 rights. As noted above, Respondent sent a letter to the Union on December 21 in which it specifically stated that it intended to hire 175 employees (including supervisors) and that out of those only 25 percent would be former El Mundo, Inc. em- ployees. As of December 21, Respondent had hired 52 em- ployees out of which 17 were former El Mundo, Inc. em- ployees, plus 20 area supervisors of which 11 were former El Mundo, Inc. employees (of a total of 72 unit positions, 28 former El Mundo, Inc. employees). Thus, on December 21, Respondent had filled approximately 40 percent of the unit positions with former El Mundo, Inc. employees and had approximately 96 unit positions vacant. The Court in the related 10(j) proceeding found that Re- spondent’s hiring practices regarding independent contractors hired to perform the tasks of former employee positions in the circulation department can be examined and taken into 364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD consideration by the Court as corroborative of the discrimi- nating employment practices used by the Respondent to fill the employee positions. As found by the Court, these prac- tices illustrate the antiunion animus shown by supervisors implementing the Company’s hiring practices and I find that they support the finding otherwise reached here. Moreover, the matter of the status of these independent contractors is a subject of the remedy here inasmuch as the subcontracting arrangement is a matter of future mandatory bargaining and it may well be that these positions will be considered to be bargaining unit positions as they are at an- other newspaper in Puerto Rico. The record further shows that out of the 85 employees hired by Respondent between December 22 and February 25, 1988, at least 58 filed their employment applications after December 21 (most of the employees hired during this period filed their employment application the same day they were hired). In addition, the record shows that as of February 25, 1988, there were 11 vacant positions and that they were un- filled despite the fact that applications of qualified former employees were on file. Accordingly, it is clear that at the time it refused to deal with the Union the Respondent had no legitimate bases for predicting or anticipating that it total work force would be made up of only 25 percent former em- ployees. The record shows that numerous former employees had filed applications but were not hired and often not even interviewed. Otherwise, Respondent made no effort to openly seek employees through any public process but instead ap- pears to have relied on word of mouth and personal knowl- edge by supervisors, a method shown to be tainted by prac- tices designed to restrict the hiring of former employees. Only 23 out of 85 persons hired in the 2 months after De- cember 21 were former employees and, accordingly, I con- clude that the record clearly supports the inference that Re- spondent established a predetermined quota to limit its hiring of former El Mundo, Inc. employees to a nonmajority level and thereby make it appear that it was not a successor em- ployer. This inference is fully supported by the separate and cu- mulative testimony of numerous credible witnesses called by the General Counsel. As a result of my conclusion in section 11 of this decision, striking the testimony (except admissions against interest), of witnesses who violated the sequestration order, this testimony stand essentially unrebutted. Otherwise, however, I also find the testimony of the General Counsel witnesses is independently persuasive and corroborative and inherently more credible than the contradictory denials and explanation offered in the stricken testimony of the Respond- ent’s witnesses. As pointed out by the Charging Party, the Respondent’s supervisors did not follow a pattern of employment norms and each manager testified to a different procedure assertedly following their own peculiar hiring criteria. The one common aspect within the broad guidelines said to be established (i.e., hire the best people available) was the nonhiring and often the noninterviewing of former El Mundo, Inc. employees, es- pecially those known to have been union advocates. Other employee-applicant’s who otherwise had worked successfully for many years were not hired, allegedly because they were not qualified. The reasons given for disqualification appear to be strained, at best, especially where it is shown that nu- merous inexperience vocational school students were hired in preference to experienced former employees. It appears that applications were lost or misplaced and second applications or resumes had to be filed, if the loss was discovered by the applicant. It also is shown that some applicants were incor- rectly told there were no vacancies for particular positions, and applications were sometimes not forwarded to an appro- priate department. Some specific examples of what occurred are set forth below. Juan Colon Ortiz was manager for transportation and di- rect sales of El Mundo, Inc. on August 30, a supervisory po- sition. In mid-November he was hired for the Respondent to be manager of direct sales by Graciliano Sostre, director of the circulation department. Colon’s duties were to reorganize the circulation department and to hire independent contrac- tors. He also supervised several others in the department and was a statutory supervisor. Colon attended various organiza- tional meetings and on one occasion Director Sostre told him that they (the circulation department) could not go over the 35-percent quota of former El Mundo, Inc. unit employees because other departments had already exceeded that limit. Sostre also instructed Colon that he could interview and hire qualified persons to work under them or fill independent con- tractor positions, however, if the applicant was a former El Mundo, Inc. unit employee Colon was not authorized to for- mally hire him as an employee or assign him to a specific area as an independent contractor even if the applicant was qualified unless it was submitted to the security office and cleared by them. Sostre told Colon that those instructions were not his but rather ‘‘came from above.’’ Out of approximately 90 applicants interviewed by Colon, around 30 were former El Mundo, Inc. employees. Colon considered almost all of them qualified for positions at the newspaper either as clerks or in area supervisor type em- ployee positions or as independent contractors, however, only three or four were actually hired or assigned independent contractor’s positions and Colon sometimes filed positions with persons he considered less qualified after the applica- tions of former employees were not cleared. Otherwise, Re- spondent did not use this clearance procedure for candidates that had not worked at El Mundo, Inc. Here, I fully credit Colon’s testimony, Colon was a former supervisor with Respondent, who voluntarily left on January 30, 1988, to go to work with the newspaper El Vocero, at a managerial position. Respondent’s supervisors, Sostre and Negron, considered him to be a good supervisor, his de- meanor was candid and direct, and I find that his testimony is not refuted by any other credible evidence. Jose Ivan Aldea was Respondent’s vice president and gen- eral manager at the start of operations. He was hired by Re- spondent on September 7, and prepared the September 17 list of all the employees that Respondent was going to initially hire pursuant to the agreements reached with the Union on September 10. This list was based on recommendations given to him by former El Mundo, Inc. supervisors and managerial staff. Aldea admitted that when Respondent started to hire personnel on November 9 it could have used the September 17 list but did not. His explanation as to why the list was not used was that it was ‘‘because Respondent’s method of purchase of the newspaper changed from a stock purchase to asset purchase.’’ Aldea also prepared a memorandum on November 2 with the names of former El Mundo, Inc. employees that Re- 365 EL MUNDO CORP. spondent should have employed upon commencement of op- erations. Most of the former El Mundo, Inc. employees named in that memorandum were not hired, even though these same employees were said to be the best in the indus- try by Gonzalez when he addressed the employees at the rati- fication assembly on September 10. Orlando Santos, assistant production manager, testified that he recruited 12 students from the vocational school to work in paste-up, photoengraving, and press. These individuals had no experience whatsoever in the newspaper industry, but were hired over former El Mundo, Inc. employees who were qualified for the positions (in fact, Santos had recommended them for recall in the listing on September 17), but who were not even called to be interviewed after filing applications. Sales Director Patricia Eaves testified that she did not know the qualifications of the ex-Mundo employees who ap- plied for jobs. She testified that she was able to know what the applicant’s qualification were just by looking at the ap- plications. She admitted that she received 30 to 50 applica- tions of ex-Mundo employees from the personnel office. After reviewing the applications, specifically where the appli- cant had worked previously, she made a preliminary deter- mination and only called for interview, those she found ‘‘qualified.’’ Six specific former employees were not inter- viewed. Jose Cao Pampin was interviewed but did not hire Cao because he was related to someone who worked at her department. She then admitted that she knew Cao was only living with someone who worked at her department and that they were not married. Other evidence reflects that the Em- ployer has no rule against relatives working together and that, for example, Sostre’s and Noriega’s sons both worked at the newspaper. Luis Villares, Respondent’s editor, said he made an initial determination as to whom to hire by looking at the names and reluctantly admitted that by looking at the names he might have been able to determine if some of the applicants were former El Mundo, Inc. employees (Villares previously had worked at El Mundo, Inc. for 13 years, finally as man- aging editor, however, he was at another paper at the time El Mundo stopped publishing). Villares also said that he dis- cussed the hiring of El Mundo, Inc. employees with Re- spondent’s president, Hector Gonzalez, because he was con- cerned about hiring former employees, but was told that he had a free hand. It also appears that Villares discussed hiring with Figueroa, who is a supervisor in his department. There- after, of the 20 persons Gonzalez previously had selected for the editorial department of the ‘‘Hoy’’ venture, most were not hired by Villares, nor were most of the ex-Mundo em- ployees in Aldea’s list of November 2. Jose A. Avila, Respondents MIS manager, testified that he interviewed Annie Saldana and although he found her quali- fied he did not hire her because there was no position avail- able for her. The record otherwise shows that Saldana filed her employment application on November 20, and that the person hired to occupy the position Saldana had occupied was not hired until January 4, 1988, the same day she filed her employment application. Two other specific ex-Mundo employees who had filed applications and were familiar with the computer operations within Avila’s section but also were not hired. Rafael Garcia is one of seven specific former El Mundo, Inc. employees who applied for or inquired about positions with Respondent but were met with responses that both ex- plicitly or implicitly reveal they would not hire them because of their past employment and union membership, and they were never offered jobs. Garcia knew Circulation Director Sostre for many years and his son was baptized by Sostre. Garcia was a delegate at the circulation department and belonged to the Union’s bargaining committee. In November, Garcia visited Sostre at his home and asked him for a job. Sostre asked Garcia what position Garcia would assume when the Union started col- lecting authorization cards. When Garcia said he would stay on the side lines, Sostre told him to fill out an application. Garcia did so and when he received no reply, he visited Sostre again in December. Sostre told him that he was in a difficult list because at the newspaper anything related to the Union ‘‘smells,’’ but that Sostre was still trying to hire him. Luis Rivera, a former general delegate for the Union, called Sostre in December and asked to be hired. Sostre re- plied that he could not hire him because of Rivera’s partici- pation in the Union. Sostre told Rivera that he had instruc- tions from further up about not hiring anyone involved in the Union. Juan Rivas Santos was a former union delegate for the photography department and an alternate delegate for the edi- torial department. Rivas spoke with Photography Director Eduardo Figueroa about the possibility of Respondent calling him back to work. Figueroa told Rivas that he had requested a resume from Mauricio Pascual and Alina Luciano but that in his case it was going to be uphill because up to then, Re- spondent had not asked for resumes from persons that had to do with the Union. Rivas conclude that it would be futile to file a resume, and did not do so. Fernanado Maldonado had a conversation with MIS Oper- ations Supervisor Cesar Rodriguez in December, shortly after he had filed a second application (he had been told by Super- visor Jose Avila that his November application could not be found; however, it was among those produced in response to the General Counsel’s subpoena). He told Rodriguez that he was the person who could help former employees like him- self obtain employment with Respondent, because he was aware of their qualifications. Rodriguez replied that it was out of his hands and that since Maldonado belonged to the Union he could forget it. Carlos Moreno Arroyo was a former general delegate for the Union. He had a telephone conversation with Supervisor Negron during the last week of December, and inquired about the status of his application. Negron said that he was trying to help him but that it was going to be difficult, ex- plaining that Moreno was on a ‘‘blacklist’’ because he had been a general delegate of the Union, and Respondent’s pol- icy was not to hire union members. Moreno had held many positions at El Mundo, Inc., including those of district man- ager, manager driver, sports reporter, assistant street sales manager, office clerk, office supervisor, and cashier. The po- sition he last occupied was vacant and controller Luis Canals told Moreno he was the person who should occupy that posi- tion, however, no job was offered. After the paper reopened in January, Juan B. Jimenez Rios visited Sostre at his home and inquired about an application he had previously given Sostre. Sostre said that Jimenez had problems since he was very well identified with the Union. The record otherwise shows that Jimenez actively partici- 366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pated in the picketing activities held by the Union on January 5, 1988, and that Respondent took photographs of that picket line and had supervisors observe the participants. Ramon Cantrev Valle, a former pressman, testified that a month after he had filed an employment application in mid- December he went to see Personnel Director Carlos Velez and was referred to Assistant to Production Manager Orlando Santos. When Cantre told Santos that Velez had sent him, Santos replied that ‘‘they themselves have told us not to hire . . . not to take in anybody from the Union, they are . . . they themselves are bringing them from the vocational school.’’ Although some former pressmen had been hired by this time, remaining open positions were filled by inexperi- enced persons from the school. Cantre was not hired by Re- spondent but was sufficiently qualified to obtain a part-time pressman position at the San Juan Star newspaper. Roberto Jusino testified that on December 11 he was hired as an area supervisor. That day, Metropolitan Area Subscrip- tion Manager Rafael Negron told Jusino that he had called Jusino to offer him a job since Angel Noriega had rec- ommended Jusino because he had been only a temporary em- ployee at El Mundo, Inc., had never been involved in union activities, and was not pro-UPAGRA (Union). Negron fur- ther stated that he had called Jusino and Pedro Acevedo be- cause they were temporary employees at El Mundo, Inc., and Respondent was not hiring ex-Mundo employees nor prounion persons. Later that same day Negron told Jusino he should recommend agents with experience but that they should not be former El Mundo, Inc. employees, nor mem- bers of the Union. After Jusino was interviewed and hired, Negron took him to see Circulation Manager Sostre. Sostre congratulated Jusino and told Jusino that from that moment the words union and strike were prohibited and to stay away from the ex-Mundo employees or else he would be adversely affected. On several occasions during the next month, he was again reminded by both Sostre and Noriega that area supervisors should not recommend ex-Mundo employees nor members of the Union for employment. Jusino also testified that he overheard a conversation be- tween Supervisors Sostre and Noriega the first week he was employed in which Noriega told Sostre that he had called Freddie Colon for a vacant position. Sostre told Noriega not to call Colon because he was a ‘‘bad’’ union member and he had been blackballed. That same week Jusino heard Noriega and Negron speak about some districts where they had no agents and Jusino suggested Respondent call Edelmiro Ramos and Damaso Gonzalez, two former El Mundo, Inc. employees. Noriega said that Damaso was an active union member who had always been very prounion but said that Edelmiro was a good employee, Negron inter- rupted and said that Edelmiro was very impulsive and had been a member of the Union and that they would blackball the two of them. Near the end of December, Justino heard a conversation in which Noriega recommended that Respondent hire Miguel Martinez, known as La Mona. As soon as Negron mentioned La Mona’s name Sostre became very annoyed and told Negron ‘‘Damn it, Rafa, what are you thinking? You just have appointed this short guy who was an UPAGRA member and now you are going to call Martinez, who is an employee . . . ex-employee and also an UPAGRA member? Don’t call him to come over here because you are going to raise my percentage of Union personnel and I have to deal with that.’’ At the beginning of January, Jusino suggested that Negron hire Agustin Garcia for a vacant route. Noriega interrupted and said that Agustin was a subversive, and an activist and should not be called because he was very prounion and Negron told Jusino not to call Agustin because he would be an informer for the Union. Shortly before the paper began publication, Personnel Manager Carlos Velez addressed a meeting of area super- visors, circulation managers, and the heads of each depart- ment and, among other things, told them that the words strike and union were prohibited and said that the persons there present had to be very careful recommending personnel to work in the newspaper and not to recommend any ex- Mundo employees or members of the Union. After the paper resumed publication Jusino became dis- turbed by the conditions and on January 11, 1988, he con- tacted Francisco-Paco Rivera, a general delegate for the Union at the Reportero newspaper. After several meetings with Rivera, who served as middleman between Jusino and Angel Baez, executive secretary for the Union, Jusino started to distribute leaflets and bulletins among the Respondent’s employees. He distributed union cards and met with the em- ployees to discuss working conditions and the necessity of bringing the Union back. In a meeting on February 14, 1988, one of the employees to whom Jusino offered a card, refused to sign and asked Jusino to give Respondent a ‘‘break.’’ The next day, February 15, 1988, Negron told Jusino that ‘‘there were a few things about [him]’’ that he was not liking, and that he was being discharged. When Jusino inquired what the ‘‘things’’ were, Negron did not reply and just said that he was discharged. Jusino then asked why Negron was dis- charging him since 2 days earlier Negron had congratulated him for his work because he was the only area supervisor that had his marketing research cards up to date and he had just brought in 123 new subscriptions. Negron lowered his head and told Jusino that he had to get rid of him imme- diately. The next day Jusino went to the personnel office to look for a termination letter. When he inquired about the letter, the secretary at the personnel office told him that she could not give him such a letter because he was a probationary em- ployee. Although Respondent apparently prepared a proba- tionary contract for Jusino, it was never signed by anyone. (The evidence otherwise shows that the Respondent began a practice of filling out probationary contracts only after Jusino was discharged.) Jusino then went to speak with Sostre and asked the reason for the termination. Sostre replied that he did not have anything to do with the decision and that it was Negron, then added that Negron based his decision on the performance of Jusino at his district. Jusino told Sostre that it could not be so because there were other area supervisors with poorer performance in their districts. Jusino never received a discharge letter, however, on March 15 Jusino saw Negron and Noriega at a restaurant. Noriega, who at the time had been promoted to city manager, greeted Jusino by saying: ‘‘My goodness, the prodigal son is here. After I find . . . get you a job, you sold yourself to UPAGRA, eh?’’ When Jusino answered that he was going to return to the newspaper, Negron interrupted and told Jusino that he was not going to return because Negron had every arbitrator on his side. 367 EL MUNDO CORP. 4 Respondent failed to call Noriega and Velez as its witnesses to deny or explain the statements which were attributed to them. Negron testified that he recommended that Sostre termi- nate Jusino because he was disorganized and had commu- nication problems, he lacked punctuality, the agents in his district complained about him, and his agents were not up to the level of others. On cross-examination by the General Counsel, however, the accuracy or factual basis for Negron’s asserted rationale was substantially discredited. Jusino’s cred- ible testimony also disputed Negron’s justification and it oth- erwise appears that Circulation Director Sostre admitted that the department had organizational problems for several months, with no accurate record keeping until the end of February, and that no other areas supervisors were dis- charged for similar problems. As noted above, the testimony of supervisors who testified on behalf of the Respondent which denies or fails to ac- knowledge the described statements attributed to them by the General Counsel’s witnesses has been stricken from the record in accordance with the findings in section II above be- cause of the pervasive violation of the sequestration order. Otherwise, I find that the General Counsel’s nonhostile wit- nesses testified in a forthright and credible manner, whereas the testimony of the Respondent’s several witnesses dis- played evasiveness, contradictions, evidence of unreliability, and, especially in the testimony by Sostre and Negron, the probability of collusion between them. Accordingly, I credit as truthful the testimony discussed above which shows that Supervisors Sostre, Negron, Figueroa, Santos, Rodrizuez, Velez, and Noriega made statements that clearly stated or implied that Respondent would not hire former El Mundo, Inc., employees and/or union members or officials.4 Turning to the specific allegations of Respondent’s viola- tion of the Act, I find that Supervisor Sostos’ questions to Garcia regarding his union preferences are inherently coer- cive in the context in which they were made and I find that the Respondent thereby is shown to have interrogated Garcia and interfered with, restrained, and coerced its employees and job applicants in the exercise of their rights guaranteed in Section 7 of the Act and thereby has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, as alleged. The numerous statements regarding the hiring of former employees or union members made by Respondent’s supervisors to its predecessor’s employees who were seeking reemployment also demonstrate that Respondent interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights, and I therefore find that Respondent is shown to have violated Section 8(a)(1) of the Act, in this respect, as alleged. I further find that this conclusion is entirely consistent with the showing that Respondent’s managers made a con- scious decision to attempt to avoid successorship status and thereafter established a quota for the hiring of former El Mundo, Inc. employees. After its plans changed from a stock purchase to an asset purchase, it specifically avoided the use of previously prepared hiring list of the apparently most qualified former employees and it specifically avoided the open, public recruitment of employees. It established internal provisions that resulted in the disparate treatment of applica- tions by former employees, requiring such applications to be screened by the security office or personnel department and hired inexperienced persons just out of school over experi- enced, qualified former workers. Applicants were told the Respondent would operate without a union and they were questioned about their continued union sympathies. And, as discussed above, a number of applicants were candidly told that their chances of being hired were effected by their status as former employees and by their former union activities. Other witnesses, especially Colon and Jusino, credibly testi- fied regarding the existences of a quota system and plans and procedures to avoid the hiring of former employees. Re- spondent’s conduct in this regard is shown to discriminate against all former employees and union members of its pred- ecessor in regard to their hire and tenure of employment and it otherwise created a climate of futility regarding the possi- bility of employment for former bargaining unit members, and it thereby discouraged membership in a labor organiza- tion. See State Distributing Co., 282 NLRB 1048 (1987). Accordingly, I find that Respondent is shown to have vio- lated Section 8(a)(1) and (3) of the Act in this respect, as alleged. As described above, Jusino was subjected to conduct at- tributable to the Respondent which included numerous spe- cific examples of statements to the effect that the Respondent considered former employee and/or union member to be po- tential problems and that it wanted to avoid hiring them. When hired, he was told it was only because he had been a temporary employee at the predecessor company (and therefore not a unit number), had not been involved with and was not prounion. Shortly after the newspaper resumed pub- lishing Jusino began participating in union activities which included distributing leaflets and union authorization cards to employees and meeting with employees to discuss the need for a union. One day after Jusino experienced a hostile re- fusal and argument at one such meeting, he was summarily fired, despite the fact that his work had been praised only a few days earlier. In a discharge case of this nature, applicable law requires that the General Counsel meet an initial burden of presenting sufficient evidence to support an inference that the employ- ee’s union or other protected concerted activities were the motivating factor in the employer’s decision to terminate the employee. Here, the record shows that Jusino engaged in open union activity. Moreover, the timing of his discharge, one day after another employee reacted in a hostile manner to a union card solicitation, supports an inference that the Respondent had become aware of his union activity. Other- wise, it is shown that Respondent sought to limit the hiring of prounion employees and I find that antiunion animus has been established. Under these circumstances, I find that the General Counsel has met his initial burden by presenting a prima facie show- ing sufficient to support an inference that Jusino’s union ac- tivities were the motivating factor in Respondent’s decision to terminate him. Accordingly, the testimony will be dis- cussed and the record evaluated in keeping with the criteria set forth in Wright Line, 251 NLRB 1083 (1980), see NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), to consider Respondent’s defense and, in the light thereof, whether the General Counsel has carried his overall burden. Respondent’s defense is based on its contention that Jusino was discharged because he was disorganized, was late for meetings, was the subject of complaints by agents, and had 368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5 Under New Horizons, interest is computed at the ‘‘short-term Federal rate’’ for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. low productivity. As noted above, the General Counsel elic- ited testimony discrediting these justifications and it appears that no other employee was subjected to discipline, let alone discharge, for possible similar conduct. In fact, Jusino had been praised for his work a day prior to the incident with the authorization cards. I find that the pretextual nature of Respondent’s rationale is made apparent by Respondent’s failure and refusal to give Jusino written or verbal reasons at the time of his discharge and its subsequent attempt to as- sert that he was a probationary employee when he had not signed a probationary agreement (as required by Puerto Rico law), or been advised to this effect and where it otherwise is shown that it began the practice of filling out probationary hiring agreement only after Jusino’s termination. Under all these circumstances, I conclude that Respondent has not met its burden of showing that Jusino would have been discharged absent his union and protected concerted ac- tivity. The General Counsel otherwise has met its overall burden of proof, and I further conclude that Respondent is shown to have violated Section 8(a)(1) and (3) of the Act in this regard, as alleged. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act and at all times material the Union has been the exclusive representative of all the employees in the unit described in the Order for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3. Respondent El Mundo, Corp. is a successor employer to El Mundo, Inc., and by disavowing its bargaining obliga- tion and refusing to recognize and bargain with the Union in good faith and by unilaterally modifying preexisting wages, benefits, and terms and conditions of employment without prior notification to and bargaining with the Union, the Re- spondent violated Section 8(a)(5) and (1) of the Act. 4. By interrogating job applicants about union sympathies and telling employees/applicants that they would not be hired because of their union affiliation or because they were em- ployees of its predecessor, the Respondent has violated Sec- tion 8(a)(1) of the Act. 5. By failing to hire employees named in the appendix of this Order because of their union affiliation or previous em- ployment, the Respondent in each instance engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act by interfering with the exercise of their rights guaranteed in Section 7 of the Act and by discriminating in regard to their hire or tenure of employment, thereby discouraging membership in a labor organization. 6. By discharging employee Roberto Jusino on February 15, 1988, the Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, I recommend that the Respondent be ordered to cease and desist therefrom and to take certain affirmative action described below which is designed to effectuate the policies of the Act. With respect to the necessary affirmative action, I rec- ommend that Respondent be ordered to reinstate Roberto Jusino to his former job or a substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of earnings he may have suffered because of the dis- crimination practiced against him by payment to him a sum of money equal to that which he normally would have earned from the date of the discrimination to the date of reinstate- ment, in accordance with the method set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as com- puted in New Horizons for the Retarded, 283 NLRB 1173 (1987),5 and that Respondent remove from its files any ref- erence to Jusino’s discharge and notify him in writing that this has been done and that evidence of the unlawful dis- charge or reprimands will not be used as a basis for future personnel action against them. Having found that Respondent has refused to recognize and bargain with the Union as the exclusive representative of the employees in the appropriate unit as described, I shall recommend that Respondent be ordered to recognize and, on request, bargain in good faith with the Union as the exclu- sive representative of the employees in the appropriate unit with respect to wages, hours, benefits, and all other terms and conditions of employment, and reinstate all wages, bene- fits, and other conditions of employment which existed prior to the unilateral action. Having found that Respondent re- fused to hire most of its predecessor’s employees pursuant to unilaterally established and discriminatorily effectuated con- ditions and criteria, I find it necessary that Respondent be or- dered to offer jobs to those employees otherwise listed in the attachment to the appendix, who would otherwise have been offered jobs but for Respondent’s failure to consider for em- ployment these former El Mundo, Inc. employees on a non- discriminatory basis with the seniority and any other rights and privileges they would have enjoyed if they had been hired for such positions, or, if those positions no longer exist, to substantially equivalent positions and, because its actions were unlawfully motivated, dismissing, if necessary, any per- sons hired who were not former El Mundo, Inc. employees; and to make whole such listed employees for any loss they may have suffered by reason of the failure to hire; and to make whole all employees, past and present, for any loss they may have suffered by reason of the unilateral changes in their wages, benefits, and other terms and conditions of employment. Reinstatement shall be made on the basis of se- niority in a manner consistent with the remedies provided in State Distributing Co., 282 NLRB 1048 (1987), and Service Operations Systems, 272 NLRB 1033 (1984), and with the callback list prepared by Respondent on September 17, 1987. Backpay shall be computed in accordance with the formula set forth above and shall be effective from the time they would have been hired on and after December 22, 1987, and Respondent shall remit to the Union or any appropriate ben- efit fund, all payments owed and deductions due under the terms of its predecessor’s last bargaining agreement. Also recommend that the Respondent be required to recog- nize and bargain with the Union and, if agreement is reached, to reduce the agreement to a written contract. In ad- 369 EL MUNDO CORP. 6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec- tions to them shall be deemed waived for all purposes. dition, Respondent shall be ordered to cancel, on request by the Union, changes in rates of pay and benefits unilaterally effectuated and to make the employees whole by remitting all wages and benefits that would have been paid absent such changes until the Respondent negotiates in good faith with the Union to agreement or to impasse. The Order contains a broad cease-and-desist provision because the Respondent’s conduct demonstrates a general disregard for the employees’ fundamental statutory rights, however, in view of the Re- spondent’s posthearing conduct and the representation that Respondent has recognized and participated in collective bar- gaining with the Union subsequent to the noted Order of a district court, I am not persuaded that it is shown that the likelihood of difficulty in achieving compliance would justify inclusion of a visitatorial clause as requested by the General Counsel. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended6 ORDER The Respondent, El Mundo Corporation, Hato Rey, Puerto Rico, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating job applicants about union sympathies. (b) Discharging any employee for activity protected by Section 7 of the Act. (c) Refusing to recognize and bargain collectively with Union de Periodistas y Artes Graficas y Ramas Anexas de Puerto Rico, Local 225, a/w The Newspaper Guild, AFL– CIO, CLC, as the exclusive collective-bargaining representa- tive of it employees, with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment in the following appropriate unit: All employees employed in the Administration, Mainte- nance, Editorial, Production and Circulation Depart- ments. Excluded: Publisher and Secretary, Executive Vice- president and General Manager and Secretary, Adminis- trative Assistants to the Executive Vice President and General Manager, Director of Management and Infor- mation Center, Assistant General Manager, Industrial Relations and Personnel Director and Secretary, Assist- ant to the Industrial Relations and Personnel Director, Recruiting Officer, Treasurer and Comptroller and Sec- retary, Assistant Comptroller, Internal Auditor’s Super- visor, Credit Manager, Accounting Supervisor, Ac- counting Office Manager, EDP Manager, Assistant EDP Manager, Promotion Department Manager, Advertising Director, Advertising Manager-Sales, Advertising Man- ager-Operations, Advertising Office Manager, Adver- tising Agency Coordinators, Special Commercial Sup- plements Manager, Public Relations Director, Art Di- rector, Security Officer, Security Supervisors, Mainte- nance Director, Assistant Maintenance Director, Con- servation Supervisor, Janitor Supervisor, Electric Engi- neer Supervisor, Mechanical Engineer Supervisor, Ex- ecutive Editor and Secretary, Managing Editors, Assist- ant Managing Editors, City Editor, News Editor, Edi- torial Page Editor, Associate Editor, Production Man- agers, Assistant Production Manager, Press Foreman, Mailroom Foreman, Production Supervisors, Photoen- graving Supervisor, Circulation Director and Secretary, Metropolitan Circulation Manager, Newspaper-in-the- School Manager, Circulation Office Manager, Transpor- tation and Street Sales Manager, Assistant Transpor- tation and Street Sales Manager, Home Delivery Man- ager, Assistant Home Delivery Manager, Metro Re- gional Manager, Island Circulation Manager, Island Manager, Island Regional Managers, Mechanics Super- visor, guards and supervisors as defined in the Act. (d) Refusing to honor the terms of its predecessor’s agree- ment between the Union and changing any term or condition of employment of its employees in the above unit, including wages and benefits, without first giving the Union a chance to bargain over such change. (e) Withholding offers from, failing to hire, or otherwise discriminating against employees because they were employ- ees of its predecessor or were members or supporters of the Union to avoid having to recognize and bargain with the Union or any other labor organization. (f) Telling union-represented employees of a predecessor employer that its practice was not to hire or to restrict its hir- ing of them. (g) In any other manner interfering with, restraining, or co- ercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Offer Roberto Jusino immediate and full reinstatement and make him whole for the losses he incurred as a result of the discrimination against him in the manner specified in the section above entitled ‘‘The Remedy’’ and remove from its files any reference to his discharge, and notify him in writing that this has been done and that evidence of the un- lawful discharge will not be used as a basis for future per- sonnel actions against him. (b) Recognize and, on request, bargain collectively with the Union as the exclusive collective-bargaining representa- tive of the employees described in paragraph 1(c) above, and, if an agreement is reached, embody that agreement in an ex- ecuted written contract. (c) On request of the Union, cancel any departures from terms and conditions of employment that existed immediately before its purchase of El Mundo, Inc., retroactively restoring preexisting terms and conditions of employment, including wages and benefits that would have been paid absent such departures until it negotiates in good faith with the Union to agreement or to impasse as specified in the section above en- titled ‘‘the Remedy’’ and rescind its unilateral subcontracting of unit work in the circulation department including rein- statement of the work previously performed at El Mundo, Inc. by the district managers, district managers leadpersons, collectors, district coordinators, prepaid subscription clerk, newspaper distribution schedule clerk, and complaint mail subscription clerk. (d) Offer all former El Mundo, Inc. employees listed in the attachment to the appendix employment in the positions who 370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 7 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading ‘‘Posted by Order of the National Labor Rela- tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ would have been hired but for the Respondent’s unlawful discrimination; employment in the positions for which they would have been hired or, if those positions no longer exist, to substantially equivalent positions, dismissing, if necessary, any persons who were not former El Mundo, Inc. employees who were hired to fill such positions, in the manner other- wise specified in the section above entitled ‘‘The Remedy.’’ (e) Make those applicants the Respondent would have hired but for its unlawful discrimination whole for any loss of earnings and other benefits suffered as a result of the dis- crimination against them, in the manner set forth in ‘‘the Remedy.’’ (f) Preserve and, on request, make available to the Board or its agents for examination and copying, all records, re- ports, and other documents necessary to analyze Respond- ent’s compliance with the employment offer provisions and the amount of backpay due under the terms of this decision. (g) Post at its Hato Rey, Puerto Rico, facility, copies of the attached Notice marked ‘‘Appendix.’’7 Copies of the no- tice, on forms provided by the Regional Director for Region 24, after being signed by the Respondent’s authorized rep- resentative, shall be posted by Respondent both in English and in Spanish immediately upon receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT interrogate job applicants about their union sympathies. WE WILL NOT discharge any employee for activity pro- tected by Section 7 of the Act. WE WILL NOT refuse to recognize and bargain collectively with Union de Periodistas y Artes Graficas y Ramas Anexas de Puerto Rico, Local 225, a/w The Newspaper Guild, AFL– CIO, CLC, as the exclusive collective-bargaining representa- tive of our employees with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment. WE WILL NOT refuse to honor the terms of our prede- cessor’s agreement between the Union, or change any term or condition of employment of our employees in the above unit, including wages and benefits, without first giving the Union a chance to bargain over such change. WE WILL NOT withhold offers from, fail to hire, or other- wise discriminate against employees because they were em- ployees of our predecessor or were members or supporters of the Union to avoid having to recognize and bargain with the Union or any other labor organization. WE WILL NOT tell union-represented employees of our predecessor employer that our practice is to not hire or to re- strict our hiring of them. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL offer Roberto Jusino immediate and full rein- statement and make him whole for the losses he incurred as a result of our discrimination against him in the manner specified in the section of this decision entitled ‘‘The Rem- edy,’’ and WE WILL remove from our files any reference to the discharge of Jusino, and notify him in writing that this has been done and that evidence of the unlawful discharge will not be used as a basis for future personnel actions against him. WE WILL, on request of the Union, cancel any departures from terms and conditions of employment that existed imme- diately before our purchase of El Mundo, Inc. WE WILL retroactively restore preexisting terms and condi- tions of employment, including wages and benefits that would have been paid absent such departures until we nego- tiate in good faith with the Union to agreement or to impasse as specified in the section of this decision entitled ‘‘The Remedy’’ and rescind our unilateral subcontracting of unit work in the circulation department including reinstatement of the work previously performed at El Mundo, Inc. by the dis- trict managers, district managers leadpersons, collectors, dis- trict coordinators, prepaid subscription clerk, newspaper dis- tribution schedule clerk, and complaint mail subscription clerk. WE WILL offer all former El Mundo, Inc. employees listed in the attachment hereto employment in the position who would have been hired but for our unlawful discrimination; employing them in the positions for which they would have been hired or, if those positions no longer exist, to substan- tially equivalent positions, dismissing, if necessary, any per- sons who were not former El Mundo, Inc. employees, who were hired to fill such positions as specified in the section of this decision entitled ‘‘The Remedy.’’ WE WILL make whole those applicants for which we un- lawfully discriminated against, for any loss of earnings and other benefits suffered. EL MUNDO CORPORATION