La Prensa, Inc.

National Labor Relations Board - Board Decisions

May 15, 1961

131 N.L.R.B. 527 (N.L.R.B. 1961)

LA PRENSA, INC. 527,
as well as on the determinations of the Department of Labor in connection with
the Davis Bacon Act in setting wages for field survey crews as well as the inclusion
of this type of employee in the wage schedules the County of Los Angeles has in
connection with its public works program and the institution of an apprenticeship,
program in the State of California including personnel of field survey crews.
To accept the General Counsel 's theory that the 8 (e) proviso does not apply
to construction activities in connection with structures below ground level would
exclude from the construction industry such projects as the Federal highway pro-
gram, pipelines , and tunnels . Nothing has been discovered evidencing the intent of
Congress to exclude construction below or at ground level and since there does not
appear to be any basis for excluding the type of construction here involved from the
proviso of Section 8(e) it is found that all the requirements of the 8 (e) proviso
relating to the construction industry are present in this controversy and further that
there was no agreement entered into after the effective date of the amended Act .6
CONCLUSIONS OF LAW
Utah, Vandenberg, and Penfield are engaged in commerce and activities affecting
commerce within the meaning of the Act.
Respondent has not engaged in activities violating Section 8(e) of the Act.
[Recommendations omitted from publication.]
6 Whether or not an attempt to enforce a preexisting agreement violative of Section
8(e) is an unfair labor practice also is not necessary to resolve . General Counsel stated
on the record that be placed no reliance on the contractual provisions relating to the sub-
contract clause set forth above and the finding that all of the requisites of the 8(e)
proviso have been met make it unnecessary to resolve whether an attempt to compel
adherence to a hot-cargo agreement executed before the effective date of this section is
an unfair labor practice.
La Prensa , Inc. and Frank Carrion. Case No. 9-CA-7353. May
15, 1961
DECISION AND ORDER
On November 9, 1960, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a brief in support of its
exceptions.
The Board' has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the brief and the entire record in
the case, and finds merit in the Respondent's exceptions. Accordingly,
the Board adopts the findings of the Trial Examiner only to the
extent that they are consistent with the following.
There are two issues posed by this case : (1) Whether in Decem-
ber 1959, the Charging Party, Frank Carrion, was an employee of
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [ Members Rodgers , Leedom,
and Fanning].
131 NLRB No. 73.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, as contended by the General Counsel, or an independent
contractor as argued by Respondent; 2 (2) whether Carrion, if an
employee, was terminated in December 1959 for discriminatory
reasons.
The Trial Examiner found that Carrion was an employee and that
he had been unlawfully discharged. We disagree with the Trial
Examiner's finding that Carrion was an employee and therefore find
it unnecessary to determine the reasons why Respondent discontinued
the use of his services.
In making his finding that Carrion was an "employee," the Trial
Examiner stated that he relied, inter alia, upon the following :
(1) During the hearing counsel for Respondent conceded that "from
the commencement of his employment in April of 1958 until Decem-
ber 1958" Carrion was an employee "for the purposes of the National
Labor Relations Act."
Respondent's counsel stipulated as follows :
For the limited purpose of conferring jurisdiction in this matter,
if it can be done by concession, we will stipulate that for the
purposes of the National Labor Relations Act and the jurisdiction
of this Board for the period of time from the commencement of
his employment in April 1958 until December 1958 Mr. Carrion
enjoyed certain indicia of the status of an employee.
At a subsequent point in the hearing, counsel for Respondent said of
this stipulation :
That is, for the jurisdiction so we would not have to fight the
jurisdiction of the Board, that is correct. But that is the limiting
feature of it.
Respondent's principal defense in its answer and at the hearing was
that Carrion was not and never had been its employee. There is not
the slightest evidence that Respondent intended to abandon this de-
fense. The language of the concession as well as Respondent's sub-
sequent characterization of it plainly indicates that it was made for
only a limited purpose, not to contest the jurisdiction of the Board.
By no fair means can it be construed as an admission that Carrion
was an employee for other purposes. Moreover, the stipulation is
limited to the period from April to December 1958. The issue in
this case is Carrion's status in December 1959, a year later. The
stipulation therefore has little relevance in any event.
(2) Except for the method of paying Carrion for his work, there
was no material change in his relationship to Respondent from De-
cember 1958 to December 1959. "In common parlance the difference
2 Section 2(3) of the Act specifically excludes independent contractors from the definition
of "employee."
LA PRENSA, INC.
in the manner of remuneration may be considered to be that between
straight time and piecework. And in the publication field-where
the Trial Examiner was engaged for some 15 years-the difference
may be likened to that between salary and space rates."
However, the secretary-treasurer of Newspaper Guild of New York,
Local 3, American Newspaper Guild, AFL-CIO, the bargaining
representative of Respondent's editorial employees, whose knowledge
of the newspaper field is probably more recent than that of the Trial
Examiner,3 testified :
In December 1959 there was no doubt in our minds that he
[Carrion] was not an employee. At that time he was a free-
lancer, he was getting three dollars per picture, so we couldn't
ask the publisher to reinstate him to a status which we do not
recognize.
(3) Throughout the period of his connection with Respondent
Carrion held a "working press card" issued by the New York Police
Department. Such cards are issued, according to police department
regulations, only to full-time editorial staff employees of newspapers
and not to freelancers.
However, the evidence also indicates that Respondent had made
application for and had received "working press cards" for other
photographers who were admittedly freelancers. In view of this cir-
cumstance little weight can be given to the fact that Carrion was the
holder of such a card.
(4) In December 1958 and again in December 1959, Respondent
demonstrated the ultimate in an employer-employee relationship by
summarily altering Carrion's payroll status in the first instance and
finally by discharging him. In this connection the Trial Examiner
relied on the following testimony of F. J. Cardona, Respondent's edi-
tor, on direct examination :
Q. Was Mr. Carrion discharged by La Prensa in December
of 1959?
A. Yes.
According to the Trial Examiner, "This evidence is specifically noted
here because ... the Respondent would have it found that although
it discharged Carrion, he was not an employee."
8 On the complaint of Carrion, the Guild investigated Carrion 's status and prosecuted to
arbitration a grievance on his behalf, claiming that in December 1958, Carrion was an
employee of Respondent and covered by the Guild's collective-bargaining contract for edi-
torial employees . The arbitrator rejected the grievance , holding that , without deciding
Carrion 's status, the evidence was clear that the contracting parties had intended to exclude
him from coverage of the contract.
In view of the fact that the arbitration proceeding did not deal with the question of
Carrion 's discharge in December 1959 , we agree with the Trial Examiner that the arbi-
trator 's decision is not material to the present proceeding . Monsanto Chemical Company,
,130 NLRB 1097.
599198-62-vol. 131-35
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, on -cross-examination by the General Counsel, Mr. Car-
dona testified: * I .
Q. When you testified, Mr. Cardona, in response to questions
of Mr. Krones [Respondent's counsel], you said Carrion had
been discharged December 29,1959.
A. That's right.
Q. Did you mean by that he was no longer going to have photo-
graphs printed in La Prensa?
A. What that means, we were no longer going to give him as-
signments as free-lance photographer.
It is obvious from the whole of Mr. Cardona's testimony that by the
word "discharged" he meant termination of Carrion's relationship
with Respondent. Accordingly, the use of the word has no sig-
nificance.
The substantive evidence as to Carrion's status is as follows :
Respondent hired Carrion as a photographer in April 1958,
whether as an employee or as an independent contractor is in dispute.
Respondent agreed to pay him $60 per week plus $20 per week for
expenses. Respondent built a darkroom on its premises for Carrion's
,use and installed a dryer therein. Except for the dryer, Carrion fur-
nished all photographic equipment and supplies necessary for his
work. Carrion was permitted to sell copies of photographs he took for
Respondent to outside parties except to newspaper competitors of Re-
spondent. At the start of his relationship with Respondent, Carrion
employed a helper in the darkroom who made prints for sale to others.
Carrion paid this helper out of his own funds. After 3 or 4 weeks, he
discharged the helper because he found he could not afford to pay
him. Carrion was carried on- Respondent's payroll and social se-
curity and withholding taxes were deducted from his earnings. He
was required to be available for work at Respondent's office during
regular hours each day and was given assignments to cover by the
editorial staff members who also reviewed his work product and
determined its suitability for publication.
In December 1958, Respondent removed Carrion's name from the
payroll, canceled the salary plus expenses pay arrangement, and there-
after paid him only $3 for each photograph accepted for publication.
Carrion used his own photographic equipment, and purchased and
paid for his own photographic supplies, but continued to use Re-
spondent's darkroom for development 'work. However, as to the
latter, early in 1959, Respondent requested that he pay $50 per month
for the use thereof. Carrion did pay 1 month's rent, but refused to
pay thereafter. Respondent subsequently- agreed to waive additional
rent payments upon Carrion's. agreement to permit other photog-
raphers to use the darkroom "once in a while." As theretofore,'Car-
LA PRENSA, INC. 531
rion continued to have the right to sell copies of photographs taken
to any source except Respondent's newspaper competitors. Respond-
ent has conceded that Carrion's duties and responsibilities prior and
subsequent to December 1958 remained the same.
In December 1959, Respondent terminated its arrangement with
Carrion. The latter filed the present unfair labor practice charges
on April 27, 1960. Accordingly, the issue of Carrion's status relates
only to that which he occupied in December 1959 when he was ter-
minated. The change in relationship which occurred in December
1958 is time barred by Section 10 (b) of the Act. If Carrion was an
independent contractor in December 1959, when Respondent dis-
pensed with his services, he was not protected under Section 8(a) (1)
and (3) of the Act .4
We find, contrary to the Trial Examiner, that on the critical date
Carrion was an independent contractor and not an employee 'of
Respondent.' The most important fact supporting this relationship
was his method of compensation. He used his own photographic
equipment and paid for his own photographic supplies. His only
payment was $3 for each picture accepted for publication. If a pic-
ture was not accepted, Carrion stood the loss. In addition, Carrion
could sell copies of his pictures which appeared in Respondent's news-
paper to any customer other than a newspaper competitor and re-
ceived the entire proceeds of such sales. Also, although Respondent
assigned Carrion to subjects which were to be photographed, it does
not appear that it controlled the manner or means by which he was to
perform his work. Carrion functioned substantially like, and received
the same pay as, other photographers who were admittedly freelancers,
except that he received more assignments, apparently because he had
a darkroom on the premises.
The legislative history of the 1947 amendments to the Act shows
that Congress intended that the Board recognize as employees those
who "work for wages or salaries under direct supervision" and as
independent contractors those who undertake to do a job for a price,
decide how the work will be done, usually hire others to do the work,
and depend for their income not upon wages, but upon the difference
between what they pay for goods, materials, and labor and what they
receive for the end result, that is, upon profits." It seems to us, and
we find, that Carrion was essentially a small entrepreneur rather than
a wage earner. His income represented the difference between what
he received for pictures he was able to sell and the cost of materials,
which was quite substantial, as evidenced by the fact that in 1958
A Claremont Development Co., et al., 106 NLRB 611.
5 Philadelphia Daily News, Inc., 113 NLRB 91, 93 ; ef. The Pulitzer Publishing Company,
etc., 101 NLRB 1005, 1007.
9 Los Angeles Evening Herald and Express Division of Hearst Publishing Company, Inc.,
102 NLRB 103,.107.,
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had allowed him $20 a week for expenses, principally for
photographic supplies. As Carrion was not an employee within the
Act's definition at the time for his termination, we have no alternative
but to dismiss the complaint.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A charge having been filed and duly served , a complaint and notice of hearing
thereon having been issued and served by the General Counsel of the National Labor
Relations Board , and an answer having been filed by the above -named Respondent,
a hearing involving allegations of unfair labor practices in violation of Section
8(a) (3) and ( 1) of the National Labor Relations Act, as amended , was held in New
York, New York, on June 29 and 30, and September 26, 1960, before the duly
designated Trial Examiner.
General Counsel and the Respondent were represented at the hearing and were
afforded full opportunity to present evidence pertinent to the issues , to argue orally,
.and to file briefs . Both parties have filed briefs.
Disposition of the Respondent 's motion to dismiss the complaint , upon which
ruling was reserved at the hearing , is made by the following findings, conclusions,
and recommendations.'
Upon the record thus made , and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
La Prensa, Inc., is a New York corporation maintaining its principal office and
place of business in New York , New York, where it is engaged in the publication,
sale , and distribution of a Spanish -language newspaper.
During the year preceding issuance of the complaint the Respondent held mem-
bership in , or subscribed to, various interstate news services , including United Press
International . Its gross revenues from its publishing operations during that period
were more than $400 ,000. And during the same period it purchased and caused to be
shipped directly or indirectly to it ink , newsprint, and other materials valued at more
than $50,000 from points outside the State of New York.
' The Respondent is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Newspaper Guild of New York, Local 3 , American Newspaper Guild, AFL-CIO,
is a labor organization admitting to membership employees of the Respondent.
M. THE UNFAIR LABOR PRACTICES
A. Issues
Frank Carrion , a news photographer and the Charging Party in this case, ad-
mittedly was discharged by the Respondent in December 1959 .2 It is General Coun-
sel's contention that Carrion was fired because of efforts to become a participating
member of the Guild which had , during all material times , a contractual relationship
with the Respondent . The Respondent denies this allegation , and on the contrary
' The Trial Examiner hereby orders that the record include a stipulation between the
parties, received after the close of the hearing, concerning certain typographical errors in
the transcript.
9 The Respondent 's answer "admits that on or about December 6, 1959 , it dismissed
Frank Carrion ." And the following exchange occurred during direct examination of
F. J. Cardona , editor of the paper:
Q. Was Mr. Carrion discharged by La Prensa in December of 1959?
A. Yes.
This evidence is specifically ' noted here because ,' as pointed out later , the Respondent would
have it found that although it discharged Carrion , he was not an employee.
LA PRENSA, INC. 533
claims, in its answer, that Carrion "was never an employee of Respondent but was a
free-lance photographer and an independent contractor." And while the Respond-
ent's brief is silent on this point, it was not specifically abandoned. It will there-
fore be assumed that the two chief questions for resolution here are: (1) Was
Carrion's employment such that he was at all material times an employee accorded
rights by the Act; and (2) were his services terminated in December 1959 because
of his Guild activities?
B. Findings and conclusions as to Carrion's employee status
Upon the basis of the following facts and factors the Trial Examiner concludes and
finds that at all material times Carrion has been and continues to be an employee as
defined by Section 2(3) of the Act: 3
(1) Contrary to the claim in its answer that Carrion "was never an employee of
respondent," during the hearing counsel for the Respondent conceded that "from
the commencement of his employment in April of 1958 until December 1958" Car-
rion was an employee "for the purposes of the National Labor Relations Act."
(2) Except for the method of paying Carrion for his work there was no material
change in his relationship to the employer in and after December 1958 until his
ultimate discharge in December 1959. Until the earlier date he received a weekly
salary plus expenses. After the latter date he was paid a fixed sum for each photo-
graph taken by him and reproduced in the paper. In common factory parlance the
difference in the manner of remuneration may be considered to be that between
straight time and piecework. And in the publication field-where the Trial Ex-
,aminer was engaged for some 15 years-the difference may be likened to that be-
tween salary and space rates.
(3) The employer's control over Carrion's work and hours was without appreci-
able change. He continued to be required to report at the office at noon each day,
7 days a week-unless he had received an earlier call on assignment, and to remain
available for assignment or development of his negatives until 6 or 7 o'clock each
night. Often he was called late at night for special assignments. Throughout his
employment the editorial staff retained the right to publish or reject the photographs
taken by him. Negatives continued to be developed by him and prints made on
the employer's premises, in a darkroom provided by the paper. At all times he was
permitted to sell extra copies of photographs taken by him-except to newspaper
competitors.
(4) The employer's editorial staff continued to direct his work, send him on assign-
ments, review his work product, and determine its suitability for publication.
(5) Throughout his employment and upon periodic application of the Respond-
ent's management, Carrion continued to hold a "working press card" issued by the
Office of Community Relations, Police Headquarters, City of New York. Such
permits are issued only to "full-time editorial staff employees of newspapers," accord-
ing to the uncontroverted testimony of the officer "in charge of the investigation and
issuance of police press credentials." They are not issued to freelancers.
(6) In December 1958 and again in December 1959, the Respondent demon-
strated that ultimate in an employer-employee relationship-in contrast to dealings
with an "independent contractor"-by summarily altering his payroll status in the
first instance and finally by discharging him, as noted in footnote 2, supra.
(7) Finally, in his able brief counsel for General Counsel appropriately cites
The Bethlehems' Globe Publishing Company, 98 NLRB 1238, 1240, as the governing
authority:
In determining whether an individual is an employee or an independent con-
tractor no single factor is necessarily determinative. Nevertheless, it is well
S The section reads :
The term "employee" shall include any employee, and shall not be limited to the
employees of a particular employer, unless the Act explicitly states otherwise, and
shall Include any individual whose work has ceased as a consequence of, or in con-
nection with, any current labor dispute or because of any unfair labor practice, and
who has not obtained any other regular and substantially equivalent employment, but
shall not include any Individual employed as an agricultural laborer, or in the domestic
service of any family or person at his home, or any individual employed by his parent
or spouse, or any individual having the status of an independent contractor, or any
individual employed as a supervisor, or any individual employed by an employer
subject to the Railway Labor Act, as amended from time to time, or by any other
person who is not an employer as herein defined.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
settled that the most- essential characteristic of an -employer-employee relation-
ship is-the retention by the employer of the right to direct and control the manner
in which he employee's work shall be performed. As the Employer here does
retain this control, even though it may not exercise it, and because the Em-
ployer has the right to terminate at will its relationship with its photographer, we
find that the photographer is an employee and not an independent contractor.
C. Findings and conclusions as to the discharge in December 1959
Ample evidence establishes beyond question, in the opinion of the Trial Examiner,
two elements essential to determination, of the issue raised by Carrion's discharge in
December 1959: (1) that almost from the beginning of his employment in 1958
'Carrion made open efforts to join and be represented by the Guild and eventually
did join and succeed in getting that organization to act on his behalf; and (2) that the
Respondent was both aware of and resented Carrion's attempts to be thus represented.
-,The following facts bear upon both points:
(1) At about the time of Carrion's hire in April 1958, the Guild and the Respond-
ent were negotiating a new contract. Carrion approached the steward or Guild
chairman at the plant about his being covered under such contract. Upon being
informed that a 90-day clause under the contract would affect such coverage Car-
rion dropped the matter for a time.
(2) In November of 1958 Carrion went to the Guild, finally convinced a Guild
official that he should be permitted to join, signed an application card, and was given
blank cards for distribution among other photographers. Carrion distributed the
cards at the plant.
(3) Upon his return from the Guild office Carrion was summoned to the office
of Del Valle, conceded by the Respondent to be the head of its accounting depart-
ment. Carrion's testimony is uncontradicted that Del Valle told him:
Mr. Cardona has called me and told me that you have went [sic] to the union
and he [is] going to take you out as an employee-take you from the payroll
and make you a free-lance.
Carrion protested and insisted that Cardona must give him a discharge slip before
making him a freelance. He was not discharged, however, at this time.4
(4) Carrion reported events to South, a Guild official, but for reasons unexplained
in the record South failed to take any action until some months later when Carrion
filed a complaint with the New York State committee against discrimination. After
appearing twice before this Committee the Guild finally, after nearly a year of in-
activity on behalf of an applicant, through its secretary-treasurer made a formal and
written demand upon the Respondent that Carrion be placed back upon the regular
payroll and be covered by the existing contract.
(5) An exchange of written communications then followed: the Respondent main-
taining that Carrion was not an employee and refusing to consider that he was cov-
ered by the contract.
(6) At about the time this exchange began, in late October and November 1959,
Cardona called another La Prensa photographer into his office and warned him in
effect that if the photographers went into the Guild he could not afford to have more
than two or three on the staff , and cautioned him to "think it over."
(7) A a meeting with Guild representatives in December 1959, during the con,
tinning dispute as to Carrion's coverage under the contract, Cardona became angry
and declared that while he would be willing to accept the other photographers in the
Union he. "never would have anything to do with Carrion." 5
Finally, the question as to whether Carrion was actually discharged because of his
Guild activity or for cause. The Trial Examiner concludes and finds that the pre-
ponderance of credible evidence fully sustains the allegations of the complaint, and
for the following reasons:
(1) On an unfixed date but apparently in mid-December 1959, during the heat
of management's dispute with the Guild about Carrion, Cardona issued instructions
to City Editor V. H. Quiroga and to the entire editorial staff to the effect that
A These undisputed facts would clearly have supported a finding of unlawful discrimina-
tion against Carrion at this time. No charge was filed, however, and the 6-month bar
prevents the finding.
3 The quotations are from the credible testimony of Anthony Navarete, a member of
La Prensa 's editorial staff and Guild delegate at the plant , which is not specifically dis-
puted by Cardona.
LA PRENSA, INC. 535
Carrion was to be given no more assignments, and Quiroga so informed the employee.
It is undisputed that Cardona gave Quiroga no reason for this action.
(2) Cardona's claim that he discharged Carrion because of his unreliability and
because "his overall performance was not what it should be" is unsupported by any
credible evidence or the testimony of any other management official. Minor inci-
dents, such as Carrion's inability to cover more than one assignment at the same
time, were not only reasonably explained by Carrion in rebuttal but were insignificant
even if given face value. There is no credible evidence that Cardona ever made
any claim of dissatisfaction with Carrion's work until his meeting with Guild officials
in December, when the Guild was insisting that Carron be placed back upon the
regular payroll.
The Trial Examiner concludes and finds that by thus discriminatorily discharging
employee Carrion, thereby discouraging membership in and activity on behalf of a
labor organization, the Respondent interfered with, restrained, and coerced employees
in the exeicise of rights guaranteed. by the Acts
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and'the free flow of commerce.
V. THE REMEDY
, Having found that the Respondent has engaged in unfair labor practices, the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
It will be recommended that the Respondent offer immediate and full reinstate-
ment to employee Frank Carrion, to his former or substantially equivalent employ-
ment and'without prejudice to his seniority and other rights and privileges, and make
him whole for any loss of pay he may have suffered by reason of the discrimination,
by payment to him of a sum of money he would normally have earned from the date
of the discrimination against him to the date of offer of reinstatement, less his net
earnings during said period, and in a manner consistent with Board policy as set out
in F. W. Woolworth Company, ,90 NLRB 289, and Crossett Lumber Company, 8
NLRB 440.
Since the violations of the Act which the Respondent committed are closely
related to other unfair labor practices proscribed by the Act, and the danger of their
commission in the future is reasonably to be anticipated from its past conduct, the
preventive purposes of the Act may be thwarted unless the recommendations are
coextensive with the threat. To effectuate the policies of the Act, therefore, it will be
recommended that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed employees by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Newspaper Guild of New York, Local 3, American Newspaper Guild, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of the Act.
'- 2. By discriminating in regard to the hire and tenure of employment of Frank
Carrion, thereby discouraging membership in and activity on behalf of the above-
named labor organization, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(3) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
E The Trial Examiner considers immaterial a good deal of testimony and a number of
documents in the record relating to certain arbitration proceedings which occurred after
the events here in issue. Such documents plainly show that the issues before the arbitrator
were other than those presented by General Counsel, and in any event the Board is not
bound by the arbitrator' s decision.