Farmers' Cooperative Compress

FARMERS' COOPERATIVE COMPRESS 85 Farmers' Cooperative Compress and United Packing- house, Food and Allied Workers, AFL-CIO. Case 16-CA-2802 November 10, 1971 SUPPLEMENTAL DECISION BY CHAIRMAN MILLER AND MEMBERS FANNING, JENKINS, AND KENNEDY On January 23, 1968, the National Labor Relations Board issued a Decision and Order in the above- entitled proceeding,' in which it adopted, with some modifications, the findings, conclusions, and recom- mendations of Trial Examiner Alba B. Martin as contained in his Decision of June 23, 1967. The Board thereby affirmed the Trial Examiner's conclusion that Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended, by numerous acts of interference, restraint, and coercion, and Section 8(a)(5) of the Act by refusing to bargain in good faith over the terms and conditions of employment, including conditions of racial discrimination. The Board, accordingly, ordered the Respondent to take specific action to remedy the unfair labor practices. Thereafter, the Union filed a Petition for Review in the United States Court of Appeals for the District of Columbia Circuit, claiming that the Board's Order was too limited; the Respondent filed a Petition to Review and set aside the Board's Order; and the Board filed a cross-petition for enforcement of its Order. On February 7, 1969, the Court of Appeals for the District of Columbia Circuit handed down its opinion enforcing the Board's Order. However, the court also remanded the case to the Board, without staying enforcement'of the Order, to determine whether the Respondent has a policy and practice of discrimina- tion against its employees on account of their race or national origin, and, should the Board find that such a policy and practice exists, to devise an appropriate remedy. Thereafter, on March 19, 1969, the court entered its decree enforcing the Order and remanding the case to the Board for further hearing consistent with its opinion.2 Subsequently, the Board accepted the remand of the Court of Appeals for the District of Columbia Circuit and, on October 9, 1969, remanded the case for a full hearing before a Trial Examiner for the purpose of receiving evidence to, determine whether the Respondent has a policy and practice of discrimination against its employees on account of their race or national origin. On June 25, 1970, Trial Examiner Alba B. Martin issued his Supplemental Trial Examiner's Decision in the above-entitled proceeding, finding that the Res- pondent has demonstrated that it has a policy and practice of invidious discrimination against its em- ployees on account of their race or national origin by taking its employees on segregated fishing trips, by maintaining and applying a discriminatory transfer policy and practices at all times since March 19, 1966, and by maintaining and discriminatorily administer- ing a discriminatory retirement plan at all times since March 19, 1966, and that such policies and practices are violations of Section 8(a)(1) of the Act. The Trial Examiner recommended that Respondent cease and desist from engaging in those unfair labor practices and take certain affirmative action, as set forth in the attached Supplemental Trial Examiner's Decision. The Trial Examiner further found that Respondent had not engaged in other discriminatory conduct against its employees on account of their race or national origin as claimed by the Charging Party, and referred the question of "compensatory relief" to the Board for determination. Thereafter, Respondent and the Charging Party filed exceptions and the Respon- dent filed a supporting brief. The Respondent requested oral argument. Pursuant to the Board's decision to grant the Respondent's motion, oral argument in this case was heard before the Board on December 7, 1970. The Board3 has reviewed the rulings of the Trial Examiner made at the remand hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Supplemental Decision, the court's re- mand opinion, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings,4 conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. 1. Although the Trial Examiner found in his original Decision that the Respondent discriminated racially in its assignment of overtime on the panel watch, the evidence introduced at the remanded hearing convinced him, as it does us, that Respondent has not discriminated because of race in allocation of overtime watching on the.panel or in the yard. Indeed, all the evidence introduced on remand indicates that Respondent allocated overtime hours to employees who asked for it regardless of race, and that those 1 169 NLRB 290. argument and is participating in the disposition of this case. 2 416 F 2d 1126 Respondent's petition for certiorari dented 396 U.S. 4 In the early part of his Supplemental Decision entitled "Respondent's 903. Position and its Efforts to Change its Image," the Trial Examiner 3 Member Kennedy, who did not hear the oral argument , has reviewed inadvertently stated dates as November and December 1967. It is clear that the entire record in this case including the arguments advanced dung oral those dates should be 1966. 194 NLRB No. 3 86 DECISIONS OF NATIONAL employees who did most of the overtime watching included an Anglo, a Latin, and a Negro .5 Further- more, the evidence shows that other Latins and Negroes, as well as Anglos, received overtime watch on the panel and in the yard. We adopt the Trial Examiner's conclusions that there was no discrimination in the selection or promotion of employees to proofchecker positions. Since early 1967, selection for the proof checker position has been made after posting. Two postings have taken place: after the first posting in 1967 a Latin, Nazario Vidaurre, and a Negro, Charlie Ray Powell, were selected for promotion to proofchecker positions; and, after the second posting in July 1969, another Negro, G. W. Thomas, was selected. Apart from the fact that minority group employees were selected for promotion to these positions, its appears clear that criteria for these selections were announced and posted and were based on nondiscriminatory factors. We likewise adopt the Trial Examiner's conclusions that no racial discrimination was involved in the temporary transfer of an Anglo, Ronnie Greer, to the proofchecker position for a short time as Respon- dent's credited explanation sets forth good business reasons for such a move. 2. The ultimate burden of establishing unlawful racial discrimination remains, as it does with regard to proving discrimination based on union or concerted activities, with the General Counsel.6 In reaching our determinations here we note that beginning in '1967, Respondent undertook an affirmative antidiscrimina- tion policy which included, inter alia, numerous bulletins announcing Respondent's equal opportunity policy and its action program consisting of deliberate- ly upgrading certain minority group members, posting of job openings, training programs, establishment of a job classification and evaluation program, job qualifi- cation standards, and notification of its "Equal Employment Policy" to organizations representing minority groups and to the state employment commis- sion. Moreover, in a plant where 85 to 90 percent of the employees belong to minority groups, any of Respondent's actions in running its business and particularly the job of filling jobs and promotions and the handing out of overtime work are likely to be subject of claims of discrimination, racial or otherwise.? A review of the facts surrounding the Trial 5 The Charging Party's exceptions in this regard urge us to reverse the Trial Examiner's credibility determinations. After a careful review of the record, we conclude that the Trial Examiner's credibility resolutions are not contrary to the clear preponderance of all the relevant evidence and we, accordingly, find no basis for disturbing those findings Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 199 F.2d 362 (C.A 3). 6 At the hearing on remand, much of the evidence was adduced by the Charging Party whose factual allegations , as advanced in the first hearing and in its brief, raised the issue which we now face. We have fully LABOR RELATIONS BOARD Examiner's specific findings as to the retirement plan, the transfer policy, and the fishing trips forces us to conclude that the Trial Examiner's conclusions are ill- founded. Retirement Plan The Trial Examiner found that Respondent's retirement plan, drawn up in 1959, discriminates on the basis of race in that "it was conceived and is administered to help the Anglos and possibly the Negroes, but to exclude the Latins. . . ." Allegedly illustrative of discrimination in its administration is the case of Mack Jamison, a Negro, who had to invoke the assistance of the Equal Employment Opportunity Commission (EEOC) before he was found qualified for retirement benefits. The Trial Examiner concluded that the initial denial of benefits to Jamison established that the retirement plan was discriminatorily administered. We disagree. Eligible for retirement benefits under the plan are all employees 65 years of age or older who have served the Company for 10 years as regular employees without a break in service. Plant Manager McKinney presently administers the plan under which four Anglos and Jamison (discussed hereafter) draw retirement. Another Negro has qualified but has elected to continue working. The record clearly establishes that all regular (i.e., year-round nonsea- sonal) employees, regardless of race who reach the age of 65 and have 10 years of continuous service qualify for retirement benefits. This qualifying standard eliminates seasonal employees, whether they be Anglo or Latin or Negro. However inequitable it may have seemed to the Trial Examiner, discrimination against seasonal employees in the application of a retirement plan does not in and of itself establish that its retirement plan was conceived to help Anglos over Negroes and Latins. To the contrary, many more minority employees numerically could qualify than Anglos and, percentagewise, only a slightly higher percentage of Anglos could qualify than Latins. In 1966, for example, only 14 Anglos were regular employees while the Company retained 82 minority group employees as regulars. The record discloses that a greater percentage of Negroes retained jobs during the slack season than Anglos (33 percent to 29 percent) and that only 7 percent fewer Latins (22 percent) retained jobs than Anglos. Inasmuch as a considered this evidence, together with that adduced by the General Counsel, in reaching our conclusion, infra, that the record does not support the allegations in Charging Party's earlier briefs and does not establish a pattern of discrimination by this Employer on the basis of either race or national origin. ' As exemplified by the lack of merit of allegations of racial discrimination with respect to overtime work, proofchecker jobs, and as found hereinafter, with regard to the retirement plan or transfer policy. FARMERS' COOPERATIVE COMPRESS greater number of Negroes and Latins are in fact retained as permanent employees, it is logical to assume that Negroes and Latins have as great an opportunity, if not a greater opportunity, to qualify for retirement benefits than do Anglos. Since most of the employees of this Employer are seasonal employ- ees, it is not only "most of the Latins and Negroes" who cannot qualify under the retirement plan, but it is also most of the Anglos as well. Heretofore, the'Board has not based any findings of discrimination on such nondiscriminatory factors as seniority, years of service, or regular versus seasonal employment. Contrary to the Trial Examiner, therefore, we find the record devoid of any evidence that would establish that the retirement plan was conceived or established to discriminate against employees because of their race or national origin. Regarding the denial of retirement benefits to Jamison as evidence of discriminatory application of the retirement plan, McKinney testified that when Jamison retired in 1964, McKinney checked and noted that Jamison had service breaks in both 1952 and 1957 and therefore did not qualify for retirement benefits. When confronted by an EEOC suit on Jamison's behalf in 1969, McKinney talked to Jamison who stated he had left the Compress in 1952 and again in 1957 at the request of Respondent's manager, Tom Brown. Thereupon McKinney checked with Brown who verified that he very well could have requested Jamison to work at the Corpus plant those 2 years. In view of the circumstances, McKinney concluded that Jamison did qualify for retirement benefits and authorized payments to him. The record also discloses that McKinney was not employed by Respondent when Jamison's breaks in service occurred nor did Jamison bring such explana- tion to McKinney's attention when he was initially denied benefits. While the failure of communication between McKinney and Jamison may have resulted in an initial inequity with respect to Jamison, the record falls far short of establishing that the denial of retirement benefits to Jamison was because of his race or that the retirement plan itself was, therefore, discriminatorily administered. Transfer Policy The Trial Examiner also found that the Respon- dent's practice and policy of transferring employees to different jobs without a change in pay rates amounts to racial discrimination and continues as such, citing as examples the Ruiz matter and the Gonzales incident. In addition to such incidents, the 87 Trial Examiner pointed out that most of the perma- nent assignments of minority group employees are to lower paying jobs and most of the permanent assignment of Anglos are to the higher paying jobs. The Trial Examiner reasoned, apparently because of this original assignment, that the Respondent's, transfer policy is discriminatory because it "locks" in the more numerous Latins and Negroes in the lower paying jobs while they are working on a higher paying temporary job and it is not until the Respondent decides that a "temporary" assignment is a permanent one that the lower paid employees get the higher pay rate for that job. As the higher paid employees consisting largely of Anglos perform the lower rated jobs and continue to receive their higher permanent rate, the Trial Examiner concluded that such a policy works to the mental detriment of the Latins and Negroes. We cannot follow or accept the Trial Examiner's strained reasoning. There is no contention or allega- tion before us that the original assignment of jobs was based on racial discrimination. Essentially, therefore, the Trial Examiner is predicating his finding of a discriminatory transfer policy on the premise that the original assignment of jobs was discriminatory and based on race or national origin, despite the fact that such matter was never alleged nor litigated. The only evidence is the opposite-that placement on jobs was based on education and qualifications and since Respondent used these temporary transfers to judge an employee's qualifications for a higher paying job, the "temporary" transfer in fact offers a lower paid employee the opportunity to show that he qualifies and can handle a higher paying job. It certainly does not follow as the Trial Examiner found that the transfer policy "locks" a minority employee into a lower paying job. It is true that Respondent has continued to transfer men to lower and higher paying jobs temporarily without a change in their basic pay rate, and that "temporarily" can in some instances be for quite some time. But the issue is not whether the Respondent's transfer policy was inequitable in that an unreasona- ble time elapsed before employees were awarded the higher pay scale for a different job. The issue is whether the transfer policy was discriminatory in itself or was discriminatorily applied. The record is clear that the transfer policy was uniformly applied to Anglos, Latins, and Negroes. There is no evidence that Anglos were given preference in transfers to better jobs or that an Anglo temporarily transferred to a higher paying job got the higher rate although a Latin or Negro did not. Conversely, there is no showing that a Latin or Negro transferred to a lower 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paying job and lost his higher rate of pay and an Anglo did not.8 The record also discloses that during bargaining the Union requested that the Company pay at the higher rate after a short period on the higher scale jobs. It was in this context that the Union claimed that Ruiz, a seasonal employee, should be classified and paid at a higher rate and, at the remanded hearing, that a Latin, Niconar Gonzales, was discriminated against because he received less pay than others for doing the same work. Ruiz was hired by Respondent as an off-bearer at $1.50 an hour sometime in August 1965. The Union contended that he was doing the job of "reweighing" cotton and should be classified as a weigher, a classification receiving $1.80 an hour. From August 1965 until November 1965, two bales of cotton were reweighed. In mid-November, reweighing picked up and Ruiz performed such job off and on until his layoff in March of the following year. The testimony of Davidson, as well as McKinney and Flores, the latter an employee who relieved Ruiz at the reweigh- ing job, established that the job of "reweighing" was different from that of a "weigher" in that a weigher was required to weigh bales at a two or three times faster rate and had additional responsibilities, such as tagging. Ruiz, as a seasonal employee, was laid off in March 1966, and since that time the reweighing has become a steady job. Respondent has also added duties for the reweigher and such classification now, receives the same wage rate as a weigher. As to Gonzales, the record discloses that he had been a seasonal employee since 1956 and that he received 5 to 10 cents less an hour for a 2-year period than two regular employees who performed the same job as Gonzales. According to McKinney's testimony the two regular employees, Speegle, an Anglo, and Tyron, a Negro, had received a rate raise during the off-season and merely retained it when they were used in stenciling jobs (Gonzales' job) during the busy season. The Trial Examiner concluded that the Ruiz matter and the Gonzales incident were evidence of the discrimination .9 We disagree. The facts regarding Gonzales' wage rate were adequately explained in terms other than race, and the Trial Examiner's own description of the added responsibility and "newly-created job" after Ruiz had left his "reweighing" position more than adequately demonstrates that Ruiz was not paid less because he was Latin, but convincingly proves he was paid less 8 The nondiscriminatory application of this transfer policy is further documented by testimony in the remand hearing, and the conclusion of the Trial Examiner, that a Negro, Powell, was temporarily transferred to a lower paying job and did not lose his higher rate of pay. 9 Differences in pay between regular and seasonal employees is practiced in many industries and we, therefore, do not accept the Trial Examiner's conclusion that because Gonzales was paid less for the same work, it amounted to "discrimination in favor of the other two races because he had fewer responsibilities. Unlike our dissenting colleague, we do not attempt to judge whether the new duties were "impressive"-we find that after Ruiz left, additional responsibilities atta- ched to the reweighing job. Respondent's overwhelm- ing evidence in regard to the Jesse Ruiz wage rate matter leaves no room for inferences. Accordingly, we find that neither Gonzales nor Ruiz was discriminated against because of national origin or race. We further conclude, for the reasons previously noted, that the record does not establish that Respondent has a policy or practice of invidious racial discrimination in the application or maintenance of its transfer policy. Fishing Trips The final finding by the Trial Examiner of invidious racial discrimination practiced by the Respondent involved segregated fishing trips, or, as the record revealed, segregated fishing trips in 1966. Apparently, fishing trips are sporadic affairs sponsored by the Respondent. In March 1966, a group of employees approached McKinney and requested time off to go fishing. McKinney passed the request to Tom Brown, who liked the idea so well that he not only gave the employees permission to go and said that Respondent would pay their expenses, but he also decided to go along and take his wife. Others then asked to bring their wives, and the group divided into two separate trips, the first with wives and the second without wives. Only those employees who had asked to go went on these trips, which consisted only of Anglo employees. Later, in June, Respondent did publicize a fishing trip and anyone who wanted to go was allowed to go with Respondent paying all expenses. All three trips were of about the same duration, although the trips in March were a greater distance from the plant since McKinney was unable to arrange accommoda- tions for the same spot in June. The Trial Examiner concluded that the segregated fishing trips proved that Respondent has a policy and practice of invidious discrimination against its minority employ- ees. Despite minor factual discrepancies in the Trial Examiner's findings,10 it does appear that the Compa- ny joined in an employee-initiated fishing trip and financed fishing trips in March 1966 that were segregated as to sex and race. Later in June of that same year the Company sponsored a fishing trip in which all employees regardless of race or origin were against Latins." 10 For instance, (1) the segregated trips in March were the only incidents on record of segregated groups, (2) McKinney did not go on the June 1966 trip although he had gone on other integrated trips; (3) there is no evidence of whether any supervisors went on the June 1966 trip; (4) Respondent did mention the fishing trips in its posted notices; and (5) the record reveals that some minority group employees were aware of the trips. FARMERS' COOPERATIVE COMPRESS permitted to participate. The record does not disclose any other instance of company-financed social activities that were segregated and the March fishing trips are the only instances disclosed by this record. Moreover, it appears that the Company sporadically sponsors fishing trips that are open to all employees irrespective of race or national origin. In view of the explanation as to how the March fishing trips originated, the fact that there was no evidence that any minority group employees asked to go on either of the March trips and were refused, and the Company's general policy of sponsoring fishing trips open to all employees, we conclude that such conduct standing alone does not constitute invidious racial discrimina- tion as expressed by the court in its order of remand. Moreover, we note that Respondent, since the initiation of its affirmative action program, has affirmatively stated in its posted notice that every employee is to be treated equally, without regard to race, in participation in all company-sponsored activities, and has specifically mentioned the fishing trips. Accordingly, we conclude, contrary to the Trial Examiner, that in the circumstances related the fishing trips in March do not establish that Respon- dent has a policy and practice of invidious discrimina- tion against its minority employees. 3. In examining the policies and practices of the Respondent, we, like our dissenting colleague, are not unmindful of the work force statistics as they existed prior to the first hearing in this case; particularly, as they show that no supervisory positions were then held by minority group employees. The record shows that in 1966 all 10 of Respondent's supervisors were Anglo. However, by the time of the second hearing Respondent has promoted three persons from minori- ty groups to supervisory positions through its affirma- tive action program. Clearly Respondent has aban- doned its arguably discriminatory past practices, although there may be some uncertainty as to whether Respondent's recent promotions have fully rectified the effects of past discrimination concerning supervi- sory positions. This uncertainty persists, at least in part, because that earlier practice was not alleged to be a discriminatory practice and was not fully litigated. We conclude, based on this record, that such uncertainty should be resolved in Respondent's favor. We note, first, that Respondent took the initiative prior to the first hearing in implementing an affirma- tive action program whereby it notified not only all its own employees of a nondiscriminatory policy, but it also notified employment agencies, minority groups, and other community organizations. As a result of its implementation of this affirmative action program, Respondent deliberately promoted minority group 11 Such a finding, however, does not affect our previous determination that Respondent failed to bargain in good faith with the Union over 89 members to foreman positions, employed minority group persons in its office and IBM department, and has followed a nondiscriminatory policy in promo- tions since, as illustrated by its promotions to proofchecker positions. Finally, we note that at the time of the second hearing, 3 of the 10 supervisory positions currently in existence were held by minority group employees. These three are the only supervisory promotions disclosed by the record. We simply cannot say, from such proof, that Respondent maintains a policy of invidious discrimination against its minority employees in regard to promotions to supervisory positions. 4. The Charging Party has excepted to the Board's failure .to order, and has renewed its request for, Respondent to make the employees whole for gains lost as a result of Respondent's refusal to, bargain in good faith. For the reasons explicated in Ex-Cell-O Corporation, 185 NLRB No. 20, Heck's, Inc., 191 NLRB No. 146, and related cases as cited therein, as well as H. K. Porter Co., Inc. v. N.L.R.B., 397 U.S. 99, we hereby deny this request. We would not, in any event, find this an appropriate case to exercise such authority as Respondent's defense has presented substantial issues for decision. 5. The Charging Party further urges a finding of invidious racial discrimination by Respondent against its minority group employees in regard to job classifications and wages, based mainly on numerical possibilities. However, more than just numbers are relevant, particularly in view of testimony that qualifications governed in promotions and transfers. The fact that the pattern of distribution of more desirable jobs and wage rates among employees remains weighted against minority group employees does not establish that the Respondent deliberately discriminated in the assignment or distribution of these jobs on the basis of race or national origin rather than on the basis of qualifications. Indeed, the record shows that many of the employees could not read or speak English. Discrimination can become a many- sided and nebulous thing. While the record may establish that the Respondent was initially indifferent to current social objectives which seek to upgrade and develop capabilities of minority employees, we are not prepared to find the Respondent has engaged in invidious racial discrimination because of its mere failure to initiate an affirmative action program at an earlier period." Accordingly, we find upon the record as a whole, that the evidence does not support a finding that the Respondent has maintained a policy and practice of alleged racially discriminatory practices and other grievances of the employees. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD invidious racial discrimination against its employees on account of their race or national origin.12 MEMBER JENKINS, dissenting: In remanding this case to us, the court of appeals held that an employer's maintenance of racial discrimination in his employment practices violates Section 8(a)(1) of the Act because it creates an "unjustified clash of interests" among the employees which tends to reduce their ability to work in concert toward their legitimate goals, and because it creates among its victims "an apathy or docility" which inhibits them from asserting their rights in the employment relation. Since Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192, racial discrimination in employment, whether by unions or employers, has been unlawful. When done by unions, it violates the union's duty of fair representation of all employees equally, imposed on the union by virtue of its statute-conferred status as the exclusive representative of the employees. Concerted activities in the absence of a union are as well protected by the Act as such activities through a union. These principles apply under the National Labor Relations Act to the same extent as under the Railway Labor Act. Ford Motor Co. v. Huffman, 345 U.S. 330; Wallace Corp. v. N.L.R.B., 323 U.S. 248; Humphrey v. Moore, 375 U.S. 335; Vaca v. Snipes, 386 U.S. 171. This statutory protection thus carries with it the same freedom from the interposition of racial road- blocks in either case. This duty under this Act, not to create racial obstacles in the employment relation, includes the employer as well as the union-represent- ed or unrepresented employees. If a union is present, racial discrimination by the employer interferes with and restrains the union in its performance of its duty of fair representation. If no union is present, the employer's racial discrimination interferes with and restrains the employees in their concerted activities which, because they are within the protection of the statute, must be treated on both sides so as not to run afoul of constitutional limitations, including the constitutional prohibition of racial discrimination. That racial discrimination in employment has been made specifically unlawful by Title VII of the Civil Rights Act of 1964, P.L. 88-362, Secs. 701-716, 78 Stat. 253-266, 42 U.S.C. 2000e-2000e-14, 1964, reinforces but is hardly necessary to this conclusion. It is the divisiveness, induced and fostered among the employees by the "clash of interests" which the employer's racial discrimination creates, which is the source of the unlawful restraint and interference with 12 Respondent contends that it was denied due process in that the complaint never alleged nor was it ever put on notice during the remanded hearing that its retirement plan or transfer policy was alleged to be discriminatory and that it was not until the Trial Examiner's Supplemental the employees' exercise of their concerted rights. The employees are forced to expend their time, effort, and money to eliminate a condition of employment based on invidious differentiation (race) which is unlawful and thus should never have existed. This discrimina- tion may induce in its victims an apathy or docility which also inhibits and restrains their exercise of concerted rights, in further violation of the statute, as the court of appeals has pointed out to us. Such apathetic docility, plain enough in this case, is another manifestation of the root evil, divisiveness among the employees, which is created by racial discrimination. However, if the employees' reaction were not a cowed apathy, but overt militancy, or a firm determination and planned design to end the invidious racial differentiation, the violation would be equally plain, in each case. The diversion of effort toward eliminating that which never should have existed and the cramping frictions and hostilities within the employee group would nonetheless persist in about the same degree as where the reaction was apathy. For, the reasons described earlier, the court of appeals held that "an employer's policy and practice of invidious discrimination on account of race is a violation of Section 8(a)(1)" and remanded the case to the Board "for hearings on whether the company here has such a policy and practice." For purposes of this case, therefore, the law is that racial discrimination violates Section 8(a)(1). The only issue before us is whether Respondent's employment practices or poli- cies were racially discriminatory. To this I turn. At the time of the original hearing in this case, 85 percent to 90 percent of the work force at Re- spondent's plant were minority group employees-Mexican-Americans (hereafter Chica- nos) and Blacks. None of them held a supervisory position. Twelve percent to fifteen percent of the work force was Anglo. Anglos held all of the supervisory positions. Anglos also held all the salaried positions and about 85 percent of the higher paying jobs. Such statistics, in themselves, sufficiently demonstrate the existence of racial discrimination. "In cases concern- ing racial discrimination, `statistics often tell much and Courts listen.' " Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (C.A. 8). The statistics there were similar to those here. The employer there, as does the Employer here, contended: that the job placement of its employees was based on, as my colleagues phrase it here, "education and qualifica- tion"; that most of its job applicants were recruited through its existing work force; that except for common laborers a high school diploma was re- Decision issued that it was aware that such matters were specifically in issue. In view of our findings herein, we find it unnecessary to pass on such contentions. FARMERS' COOPERATIVE COMPRESS 91 quired; and that passing of standardized tests measur- ing aptitude and educational levels was also required. The court concluded that this defense showed only that the employer's practices "appear[ed] neutral on their face" and that "as a matter of law" the statistics established the existence of racial discrimination. If the courts listen to what the statistics tell, the Board can hardly stop its ears. When the statistics show that the job placement standards operate to disqualify racial minorities "at a substantially higher rate than white applicants," such standards are unlawful unless they can "be shown to be related to job performance," Griggs v. Duke Power Co., 401 U.S. 424. In the present case there has been no showing, nor even an attempt at one, that the standards Respondent and my colleagues rely on were in anyway related to the performance of all, some, or indeed any of the various jobs at the Employer's plant. All we know is that in the majority's words, "education and qualification" standards exist- ed, apparently including the ability to read and speak English. But this does not show the absence of racial discrimination, for "practices, procedures or tests neutral on their face, or even neutral in terms of intent cannot be maintained" if they operate to continue and sustain racial disadvantage in employment, unrelated to job performance. "What is required by Congress is the removal of artificial, arbitrary and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification. . . . The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation." Duke Power Co., 401 U.S. at 431,13 By accepting Respondent's defense that the racially discriminatory job assignment results (the existence of which Respondent and the majority do not contest) of its employment practices were the consequence of applying its standards rather than of any intent to discriminate, the majority is holding that unlawful discrimination can be proved only if a hostile intent or purpose to discriminate is shown. Whatever may once have been the merits of examining the employer's subjective intent, his "good faith" or "bad faith," 14 this position has now been foreclosed by the Courts. As the Supreme Court held in Duke Power, "good intent or absence of discriminatory intent does not redeem employment procedures or testing mecha- nisms that operate as `built-in headwinds' for minori- ty groups." 401 U.S. at 432. And in Southwestern Bell, 13 Though Duke Power and Southwestern Bell arose under the Equal Employment Opportunity Act rather than the National Labor Relations Act, it is limiting or classifying employees "because of race" which the former Act proscribes, and that Act contains nothing to indicate that this is different in any respect from the "racial discrimination" which Steele, supra and subsequent cases proscribe under the NLRA; accordingly the cited cases are equally applicable here. "[t ]he statistical evidence introduced by Parham clearly demonstrated the Company's discriminatory employment practices from July 2, 1965, until February 1967, notwithstanding its previously-an- nounced [1964] policy of equal employment opportu- nities." 433 F.2d 421, 426. Respondent transferred its employees from the high paying jobs to low paying jobs, and vice versa. In transfers down, the transferred employees (practically all Anglos because they held practically all the high paying jobs) retained the high rate while they performed the low rate jobs. In transfers up, the transferred employees (practically all Chicanos or Blacks because they held practically all the low paying jobs) were paid only the low rate while they performed the high rate work. The statistical message is clear: there is a double discrimination in that the Blacks and Chicanos receive less pay for doing Anglos' usual work and, the Anglos receive more pay for doing the Blacks' and Chicanos' usual work. The fact that this dual discrimination may be rooted in an initial discriminatory choice of employees for jobs, a choice Respondent seemingly concedes occurred, cannot justify its continuation as new transfers occur. Neither does Section 10(b) bar relief from those transfers which occurred within the 10(b) period merely because the initial discriminatory job assign- ment occurred outside the 10(b) period. My colleagues conclude that there is no discrimina- tion in this unequal payment because the "transfer policy was uniformly applied" to all three racial groups. This is the kind of uniformity or equality in the law which forbids the rich and poor alike to sleep under bridges or permits the elephant and the rooster uniform freedom to dance among the chickens. As the Supreme Court said in rejecting a similar argument that equal protection was assured in racial covenant cases because the courts stood ready to enforce antiwhite covenants as well as antiblack cases. "Equal protection of the law is not achieved through the indiscriminate imposition of inequalities" Shelley v. Kraemer, 334 U.S. 1, 22. But even apart from the heads-I-win, tails-you-lose character of this "uniformity," the specific examples cited by my colleagues to show the absence of discrimination in pay rates demonstrate just the reverse. Thus, they argue that because the pretransfer rates are retained only while the transfer is regarded as "temporary" by the employer, there is no discrimination. But "temporary" here can mean for months, or for as long 14 The Board has in other areas of the statute, and in line with the secular development of the law in other fields, found inquiries into subjective mental attitudes to be unrewarding in terms of probative value, and unreliable factually, and has with court approval recently moved away from this thicket. Gissel Packing Co. v N.L.RB., 395 U.S. 575. See also the concurring opinion in Aaron Bros., 158 NLRB 1077. The majority's nostalgia here for an approach found ineffective elsewhere is puzzling. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as an entire season, and there is no evidence offered, as Duke Power requires the employer to do, to relate this "temporary" element to its refusal to pay the going rates for the jobs. And in- the case of Gonzales, they find the absence of discrimination in the fact that he was a seasonal employee-apparently on the ground that it is permissible to discriminate against seasonals (only about I out of 10 of whom, on this record, is an Anglo),15 since they state in footnote 9 that seasonals (even though they are employees entitled to the protection of the Act) may be treated differently, and there is no other evidence to relate, as Duke Power requires, the seasonal character of Gonzales' work to the necessity or propriety of lower pay for the same work. In the case of Ruiz, he was paid only $1.50 an hour while "reweighing" cotton when the weigher's job paid $1.80; but since Ruiz left the reweighing job, the rate for it has been raised to $1.80 because of the addition of "new duties," consisting of checking the marking of the bills, watching out for broken bands, and watching to see that the bales are not mixed with others. These "new duties" are hardly impressive, and indeed it would appear that most of them could hardly be new. The flimsiness of the explanation for the underpayment of Ruiz indicates, if further indication were needed, that Respondent practiced racial discrimination in its pay policies. Respondent concededly organized and paid for two extended vacation fishing trips for Anglo employees in 1966 from which Blacks and Chicanos were excluded, and a third trip to a closer location, on which employees of all three racial groups were invited by Respondent. My colleagues conclude that this action did not amount to racial discrimination because (1) the first two trips were initiated by a request from Anglo employees and it was therefore lawful for Respondent to limit the attendance to employees of the same racial group as those making the request, and (2) the difference in location of the third trip resulted from Respondent's inability to arrange accomodations in June at the earlier location. These "explanations," which my colleagues accept as -justification of the discrimination, are in fact themselves substantial evidence of Respondent's racially discriminatory practices. The fact that the initial request for a trip came from some of the Anglo employees and the first two trips were thereafter confined by the Employer to this racial group tells us as plainly as we need to know that both Respondent and its employees understood the existence and application of racial discrimination in Respondent's employment. But what is more important, the fact 15 During the 1966 slack season 224 Chicanos and 38 Blacks did not work, as against only 33 Anglos who did not work, out of the total complement of 391 employees. that the request to discriminate (as Respondent understood it) originated with the employees rather than Respondent cannot excuse Respondent's action in acceding to the request. There is no principle of law which excuses unlawful conduct on the ground that a third party requested the actor to do it. The illogic is even more egregious where the request, as here, originates with the beneficiaries of the unlawful conduct. And the fact that Respondent's inability to book the same location caused the third, nondiscrimi- natory trip to be taken to a closer and allegedly less desirable location cannot justify the difference in character of the trips, for, this difference was the product of Respondent's discrimination in limiting the first two trips to Anglos at times when it was able to engage the more desirable site. Concerning Respondent's retirement plan, my colleagues correctly state that from the plan's eligibili- ty requirements-nonseasonal employees 65 years old with 10 years of continuous service-and from the numbers of each racial group in the nonseasonal or regular complement, it would appear that "many more minority employees numerically could qualify than Anglos", and that the percentages who would be able to qualify were not significantly different in each group. But the reality differs from this appearance. Until 1964 four Anglos had qualified for retirement benefits, and no member of either minority group had qualified, despite the fact that the numbers in each group (on which my colleagues rely) would indicate that about 19 Chicanos and about 6 Blacks would have qualified had the treatment of all groups been equal.16 Here again, the statistics tell us a great deal, and we must listen. Their significance is increased by the fact that in formulating the plan, Respondent knew the employment history of its employees and could tailor the eligibility requirements in favor of one group or another. The message of the statistics is reinforced by the treatment meted out to the first member of a minority group to assert a claim to retirement benefits, Mack Jamison, a Black. When Jamison retired in 1964 and requested the benefits, overseer McKinney noted that Respondent's records showed breaks in Jamison's service in 1952 and 1,957. In fact, these "breaks" were caused by Jamison's having worked at another of Respondent's plants at Respon- dent's request, and did not disqualify Jamison. Since McKinney had not been in Respondent's employ when these "breaks" occurred, the usual reaction when Jamison made his claim would have been for McKinney to inquire of Jamison or management concerning the facts of the "breaks." McKinney's flat 16 In 1966 the regular employees comprised 63 Chicanos, 19 Blacks, and 14 Anglos. FARMERS' COOPERATIVE COMPRESS 93 denial of Jamison's claim indicates McKinney's understanding of Respondent's discriminatory prac- tices, and the inaccuracy of Respondent's records which resulted in the denial is further evidence of those practices. Jamison's failure to explain the nature of the breaks to McKinney when his claim was denied indicates, not that Respondent made an honest error, but that Jamison also understood Respondent's commitment to discrimination. It was only when confronted by an EEOC suit on Jamison's behalf that Respondent acknowledged error and gave Jamison the retirement benefits to which he was entitled.17 This enforced repentance is no assurance of the absence of discrimination in the past or its elimination in the future, since "[s]uch actions in the face of litigation are equivocal in purpose, motive and permanence." Jenkins v. United Gas Corporation, 400 F.2d 28, 33 (C.A. 5); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 426. For these reasons, and for the reasons given by the Trial Examiner, I would affirm his decision finding that Respondent violated the Act by discriminating on racial and ethnic grounds in its employment practices and policies. 17 Equally unimpressive is the promotion of three minority employees to supervisory positions after the complaint in this case issued. Responding to litigation may be characterized in many ways, but not as affirmative action. TRIAL EXAMINER'S SUPPLEMENTAL DECISION ALBA B. MARTIN, Trial Examiner: On June 23, 1968, the National Labor Relations Board issued its Decision and Order in the above-entitled proceedings finding that Respondent had engaged in and was engaging in certain conduct in violation of Section 8(a)(1) of the National Labor Relations Act, as amended (the Act), by numerous acts of interference, restraint and coercion; and was violating Section 8(a)(5) of the Act by refusing to bargain in good faith over the terms and conditions of employment, including the conditions of racial discrimination. The Board ordered Respondent to cease and desist therefrom and to take certain affirmative action to remedy the unfair labor practices. Subsequently, the Union filed a Petition for Review in the United States Court of Appeals for the District of Columbia Circuit, claiming that the Board's Order was too limited; the Respondent filed a Petition to Review and set aside the Board's Order; and the Board filed a cross-petition for enforcement of its Order. On February 7, 1969, the Court handed down its Opinion enforcing the Board's Order. However, under the circum- stances of the case, the Court remanded the case to the Board, without staying enforcement of the Order, to 1 169 NLRB No. 70. The Board adopted, with some modifications not pertinent to this remand, the findings, conclusions, and recommendations of the Trial Examiner's Decision of June 23, 1967. 2 Thereafter on April 15, 1970, Respondent filed a letter which was a request for permission to file a reply brief and also the brief. On May 18 I issued an Order to Show Cause as to why I should not accept this letter as determine whether the Respondent has a policy and practice of invidious discrimination against its employees on account of their race or national origin, and, should the Board find that such a policy and practice exists, to devise an appropriate remedy. On March 19, 1969, the Court entered its Decree enforcing the Order and remanding the case to the Board for further hearing consistent with its Opinion. In footnote 12 of its Opinion, the Court stated: The posture of this case leads us to order a remand on this issue. The unfair labor practice hearing a amst the company included a charged violation of § 8(a)(5) for failure to bargain about racial discrimination. However, the Board's General Counsel explicitly did not proceed on a theory that the discrimination itself violated § 8(a)(1). As noted, evidence indicating racial discrimination was produced to aid in finding whether there was a § 8(a)(5) bargaining violation. Thus the matter of the company's racial policies was litigated and the Examiner found, and the Board agreed, that the company did practice racial discrimination, We think, however, that in fairness to the company it should have an opportunity to have the matter more fully litigated, with notice that the question of a § 8(a)(1) violation is specifically to be determined. Thus the case is remanded to the Board to conduct such a hearing. On October 9, 1969, the Board remanded the case for a full hearing before me under the Court's remand, and for a supplemental decision containing findings of fact, conclu- sions of law, and recommendations. The remand hearing was held before me in Lubbock, Texas, on January 20-23, 1970. The General Counsel, the Union, and Respondent were all represented by counsel. All parties had full opportunity to adduce testimony and to call and cross-examine witnesses, and they all exercised the opportunity. After the hearing all parties filed briefs, which have been duly considered.2 I. THE ALLEGED RACIAL DISCRIMINATION A. Respondent's Position and its Efforts To Change its Image Respondent contended that it has not and is not engaging in racial discrimination among its employees, that any such discrimination is not invidious discrimination, and that it has taken steps to correct any erroneous notions to the contrary. Shortly before the original hearing before me during the third week of January 1967, and after the complaint had been served upon Respondent in early November 1967, Respondent undertook to correct its "image" with its employees, its customers, and the public. It was assisted in this endeavor by its principal attorney, Mr. Price, who had been Respondent's principal negotiator in the negotiations with the Union which resulted in the Board's Order and the a reply brief. The General Counsel filed a response and a copy of a letter addressed to me dated April 21 , which had not theretofore reached me. The Union filed a letter in opposition. I have read and considered all these documents and I accept Respondent's April 15 letter as a reply brief. All of these documents are grouped together as T.X. Remand Exh. la-c, and are filed with the G.C. Remand Exh. The record is here corrected 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Court's Decree. In late December 1967, Manager Tom Brown instructed Assistant Manager Rex McKinney to call Price to see if he had any suggestions for a course of action. After talking with Pnce, McKinney wrote Brown a handwritten memorandum reading as follows, which Brown okayed and dated January 3, 1967: Tom: John Price says the main difference is what we do now and what we might do is to assume obligation of surfacing qualifications of minority groups and unedu- cated workers. Now, we leave it to each individual to bring to our attention his qualifications. For example, if a crew of thirty-five men are working together, some of them will show initiative, sharpness, ability to think, ability to read and write and hustle. The ones that do are naturally picked by the foremen to do pencil jobs and other jobs which seem to be better. This means the man who sells himself and his qualifications gets the best deal. When we start hiring in the season, most of the Mexicans and Negroes who apply are school drop- outs without skills and are obviously not pencil men. They obviously look and act like laborers. But we have quite a few Anglos who are high school graduates apply. They want to use this job as a stepping stone to a better job, so they sell their qualifications. Theyjust look and act sharper than the uneducated Mexicans or Negroes. So they get the breaks first. Pnce says what we should do is to assume the obligation of getting the Mexicans and Negroes to sort of come out of it and show what they can do. Then, if we can make them pencil men in spite of their low education, we should do so. He suggests we should include in our program some way of motivating the uneducated employees to make them want the pencil jobs and also include some way of encouraging them to go about ' it. And then going further, we should train them for the time they can get a better deal, even when we don't have something going on for them at the time. The program should include: 1. Discover better qualified employees by: a. Broader base of labor source of pencil jobs: (1) Let everyone know we will hire qualified minority people for pencil jobs, (2) see if we have on the crews pencil men that we don't know about. b. Motivate all employees by: (1) Making some appointments from the present employees to better jobs, regardless of the feeling we may create that we are discriminating against whites. This will show all employees they, too, can get a better job here, regardless of race or education, (2) encouraging everyone to apply for a job that might open up. c. Train men so that when a better deal does open up, we can promote them on qualification. Within a few days thereafter McKinney submitted to Brown a memorandum reading as follows: PROBLEM: Even through the company selected employees over the years on qualifications, it looks like on paper we favored Anglos. Goal: 1. Show the world every employee has an equal opportunity to get ahead at the compress. 2. Establish a program whereby we will not look bad on paper or actually let anybody favor one race over another. (or anything except qualifications) Strategy: Compress will assume obligation to surface qualified workers to take pencil jobs and skilled jobs in spite of education or race. 1. Broaden base of source of pencil men and skilled men. 2. Motivate all workers to show compress their qualifications. 3. Help workers to become qualified. ACTIONS 1. Notice to employees regarding opportunity in promotion and job assignments. Make sure each employee gets notice. 2. Write various employment agencies and minority organizations. 3. Make a Mexican and a Negro foreman. 4. Employ minority group person in office and IBM dept.' 5. Establish job classification and evaluation pro- gram. 6. Set up posting system and committee and for evaluating. 7. Establish standard for qualifications. a. Skill. b. Ability. c. Efficiency. On the top of this document Brown wrote "0 K Tom Brown." Respondent began carrying out this "action program" immediately. About January 15, 2 days before the original hearing, for the first time in its 18 years of life Respondent appointed someone other than an Anglo as foreman; it appointed a Negro as foreman. About the same time it transferred a Negro male employee from the plant to the IBM room, and a Latin woman from the shipping desk to the office as a secretary. Although there was no specific proof on the subject, the entire record supports the conclusion, which I reach, that these were the first Latin and Negro employees in the IBM room and the office. In January, also, Respondent handed to each employee working and mailed to each striker four communications over the signature of Tom Brown, compress manager. The communications read as follows: All employees are being asked to confer with a management representative concerning discrimination in accordance with the enclosed notices. We-invite you to telephone the company for an appointment so that you may participate in such a conference. Enclosed with this letter are two notices which you will see posted at the plants of Farmers Cooperative Compress in the places where employee notices are normally posted. These notices speak for themselves. We invite you to read them with care, understand them, and if you do not understand ask your supervisor to explain them. In the near future you will be talked to individually by a FARMERS' COOPERATIVE COMPRESS 95 management representative concerning these matters. In the mean tune, please understand this Company's policy concerning discrimination among employees on account of race. Our policy is to treat every person in a reasonable and fair manner without regard to race. Should any employee feel that he has been discriminat- ed against because of his race, he is urged to make his views known without restraint in any manner. His viewpoint will be given full and fair consideration. If it is determined that he has been unequally treated, the company will take remedial action to correct the situation. NOTICE Recently Farmers Cooperative Compress has been accused of discrimination in that not all employees have been given equal opportunity to engage in Company sponsored activities. For example, it has been said that the opportunity has not been equal for all racial groups to participate in Company sponsored bowling leagues and fishing trips. This notice will advise each employee that Farmers Cooperative Compress desires and intends for every employee to be treated equally, without regard to race, in participation in all Company sponsored activities. Some employees have indicated that they have not been made to feel welcome to use the coffee room at the Company office because of their race. Please accept this notice as an invitation for each and every employee to use the coffee room if it is his desire to do so and if it is convenient to do so. NOTICE There has been some recent criticism of Farmers Cooperative Compress in respect to opportunity in promotion, equal pay for equal work, and job assignment. It has been said that the Company has not given equal opportunities in these areas to Mexican American and Negro employees. This notice is to advice each employee that the Company does not intend to and will not discriminate in any respect against any person on account of his race. Please understand that the Company encourages each one of you to make known to the Company your desires for promotion and work assignments. Please bring to our attention your qualifications and desires in the event you wish to be considered for assignment to a particular job. Your statement in this regard will be appreciated. When a work assignment is made you will be given full consideration without regard to your race. The Company intends to be an equal employment opportunity employer within the full meaning and spirit of the words. In addition Respondent communicated the above messages orally to the various crews who were working. Additionally, about January 18, 1967, the day the original hearing opened, Respondent sent a letter to numerous employment agencies and concerned groups reading as follows: Farmers Cooperative Compress is an equal employment opportunity employer. Should you refer applicants for employment to this company such applicant should be referred to us without regard to race. In the event you know of any person at this time of a minority race or ethnic group who may be qualified for work at this company, please feel free to ask that person to make application for employment here. The addressees of this letter included the Texas Employ- ment Commission, the G.I. Forum, the Community Action Forum, LULAC, a Latin-American Organization, the League of United Latin American Citizens, the NAACP, and the Union. Additionally Respondent issued instruc- tions to its supervisors, in groups and individually, that under no conditions was an employee to be treated any differently from others because of his race. As a part of its action program Respondent instituted a program of posting notices of openings in the higher -paying jobs, of accepting bids from all employees regardless of race, and of having the applicants evaluated by a committee of three consisting of Assistant Manager McKinney, Plant Superintendent Smith, and the foreman of the department where the opening occurred. Under this program Respondent posted two mechanics' jobs, one in 1967 and one in 1969, a clerical job in the office in 1967, two foremen's jobs in 1969, a night service job about March 1968, and a shipping clerk job in late 1969. Assistant Manager McKinney testified without contradiction that all of these jobs were filled without regard to race . In addition Respondent posted notices of job vacancies for three proof- checker jobs, which were the subject of much testimony here, and which are considered below. Also Respondent instituted a training program . McKin- ney testified without contradiction that to fill a vacancy in the welding shop Respondent transferred a Latin to it from another department to train him and give him an opportunity to do the work and learn more about it, "even though we probably could have hired a better welder for the same money outside the Company." In addition Respondent established a job classification and evaluation program, which set forth job classifications, the rates of pay, and the duties of each job. The first job classifications were effective October 1, 1967. Revised classification lists were made effective July 1, 1968, and July 1, 1969. In the fall of 1967 Respondent posted and gave to each employee a notice entitled "Equal Employment Policy" reading as follows: We wish to emphasize the Company's fundamental policy of providing equal opportunity in all areas of employment practice, and in assuring that there shall be no discrimination against any person on the grounds of race, creed, color or national origin. The policy extends to hiring, working conditions, employee treatment, training programs , promotions, fringe benefits, use of Company facilities and all other terms and conditions of employment. The Company encourages all employees to exercise their rights under this policy. The importance of fulfilling this policy cannot be overemphasized. Any violation of the letter or spirit of this policy by any employee of this Company shall 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD result in disciplinary action including, where appropri- ate, discharge. Specific instructions for affirmative action to implement this policy will be issued. Upon all of the above evidence I conclude that on the surface, at least, Respondent undertook, beginning in early 1967, to have a policy and practice of not discriminating against its employees on account of their race and that this policy and practice has been followed since then to some degree, at least. Although Respondent contended that this policy and practice was voluntary on its part, it is quite evident that it came about as the result of the organization of the employees, the negotiations, and the original stages of this proceeding. Respondent had been in existence for some 18 years and had never gotten around to announcing such a policy and practice until the employees organized and the Union initiated this proceeding. B. Filling the Proof Checker Jobs At all times of concern herein the proof checker job has been one of Respondent's highest paying jobs, and as such Anglo jobs in the eyes of the Latin group. Of the 10 proof checkers listed in a company supplied list of employees as of February 24, 1966, 9 were Anglos and 1 was a Latin. Twice under its action program Respondent has posted and filled proof checker jobs, in June 1967 and in July 1969. On the first occasion Respondent gave applicants a test. The General Counsel contended that Respondent's failure to follow the results of the test in making appointments was evidence of racial discrimination. On June 28, 1967 Respondent posted a notice reading as follows: Everyone who applied for the proof checking jobs report to the office tomorrow morning 8:00 to take competitive tests to establish qualifications for these jobs. These tests are not difficult and will not be to find out what you know about proof checking. They are designed to indicate ability in reading and writing and comparing numbers. According to the signatures made the persons below should be present tomorrow morning: Twenty-five names were listed. A few days later the three-man management committee posted its selection of the two applicants who ranked number one and number two on the test. The first was a Latin, the second a Negro. The reasons for the selections were given as follows: Selection Two applicants were accepted, Nazario Vidaurre and Charlie Ray Powell. It is the opinion of the committee that these two are most qualified of all the applicants as indicated by scoring on the tests, which are, in our opinion, very useful in determining qualifications for this particular job. Powell and Vidaurre have also been used (trained) for this work through temporary assignments during periods when this work was heavy. We believe two other applicants were indicated through the tests to be good choices for training by temporary assignment during periods of heavy work of this type. They are Jesse Chapa and Steve Ruiz. However, it is the thinking of this committee that all employees should be given opportunity to make application and the tests repeated before selection is made for other regular assignments to the job of proof checker. This is to certify that the above applicants were considered for these jobs without regard to race, creed, color, or national origin. Transfer of Accepted applicants and pay changes effective Jul 7, 1967. Jesse Chapa scored third on the test and Steve Ruiz scored fourth. Respondent also posted the results of the testing, giving the ratings, 1 through 23, of the 23 employees who took the test. Thereafter Jesse Chapa was given some training at proof checking work and performed satisfactorily. Two years later, no further tests having been given, in late July 1969, Respondent posted another notice for a proof checker vacancy, in English and Spanish, reading as follows: NOTICE Of Job Vacancy and Request for Applications This notice will remain posted from 8 :00 a.m. July 28 until 9:00 a.m. July 31, 1969. The Job Available: Proof Checker in the Warehouse Department. Duties: Include proof checking shipping orders, flagging and' blocking bales for shipment, taking bale locations on stored cotton, weighing and reweighing bales,being shipped and received, stray hunting, driving lift trucks equipped with clamps or garret attachments, and other incidental work as may be assigned by the warehouse foreman. Rate of Pay: $140. per week on variable work-week base. How to Apply: Any employee of Farmers Coopera- tive Compress may apply for this job by signing his name to this notice. All qualified applicants will receive consideration without regard to race, color, religion, national origin, age, or sex. Fifteen employees applied for the opening. The three-man management committee announced its, selection of George Thomas, a Negro, as follows: Selection G.W. Thomas's application was accepted. It is the opinion of the committee that he is the best qualified of the applicants. He has worked in the warehouse section since 1964, and has performed well in all phases of the work. Jesse Chapa also had trained as a proof checker. He had performed- satisfactorily in this work. It is the opinion of the committee that Thomas, on the basis of job performance, should receive the promotion, howev- er. This is to certify that the above applicants were considered for this promotion without regard to race, color, creed, or national origin. Transfer and Pay Change effective August 15, 1969. About 5 months later, Respondent gave work as a proof checker to Ronnie Greer, an Anglo. Greer did not take the FARMERS' COOPERATIVE COMPRESS proof checker test in June 1967 , at which time he was working in the office in the IBM room. While he was in the IBM room he was given temporary assignments weighing cotton. He was drafted about February 1968, served in Viet Nam, and returned to Respondent about the middle of November 1969. So Greer was not back when the proof checking job was posted in July 1969 . Respondent put him on a receiving crew as a weigher at Respondent's top hourly rate, which was then $2. 10 an hour. After Christmas he was assigned for about 3 days to finding missing bales of cotton in a warehouse, which is one of the functions of a proof checker. Then he was sent to Merle Spain's crew in a warehouse. At that time Spain's experienced flagman was transferred to another plant. Spain assigned Charlie Ray Powell, who had been proof checking on his crew, to pulling flags, a lesser paying job, and assigned Greer to proof checking in Powell's place. Spain was on the management committee which selected Powell as a proof checker in the summer of 1967. Spain testified that he assigned Powell to flagging when Greer came to him because he knew Powell was a fast flagger and he didn't know that Greer was. It was the busy season and the cotton was coming into the warehouse ; and if a flagger was slow he would hold up the rest of the crew. Powell suffered no loss in pay because of this assignment , nor did Greer gain any increase. Both kept the wages they were on. The first question is whether, as the General Counsel's testimony asserted, Assistant Manager McKinney told the group of applicants just before they took the test in 1967 and later told two disappointed applicants , Jesse Chapa and Rafael Flores, that the Company would fill vacancies as they occurred according to the applicant's rank on the list, the third getting the third job, the fourth the fourth job, etc. Upon all the evidence I conclude that McKinney did not make these alleged statements. The tests were designed to help Respondent select proof checkers but not to be the sole measurement for the job. As the announcement stated, the tests were not to learn what the applicants knew about proof checking, but to indicate ability in reading, writing, and comparing numbers. McKinney's testimony corrobo- rated this. Under these circumstances it is improbable that McKinney made such statements. Further, McKinney denied making them. Also Jesse Chapa's affidavit, given to the General Counsel about a week before the remand hearing, was silent as to any such statements . Further, the management committee which announced the selection of Vidaurre and Powell in 1967 mentioned that they not only stood high on the tests but also that they had had training for the job through temporary assignments during periods of heavy work of this type . Further, after announcing the selection of Vidaurre and Powell the committee stated they thought all employees should be allowed to apply for further openings and that the tests should be repeated before future selections were made. All of these strands of evidence point to the Company's position, which McKin- ney surely reflected to the employees, that other factors than the test results were to be considered along with the test results, in making the selections. The next question is whether assigning Greer to proof checker work in late 1969 manifested racial discrimination because it went counter to Respondent's program of 97 posting job vacancies and of making selections on the basis of the tests. Upon all the evidence I conclude that it did not. For 2 1/2 years Respondent had filled all proof checker vacancies, three in number, after posting the vacancies. Those were permanent changes involving payroll changes, promotions, going on a weekly salary, and transfers, for the successful applicants. By contrast Greer's assignment was a temporary one involving none of these changes and no change in his own pay . or Charlie Powell's, the regular checker who was put to flag pulling temporarily . Undisput- ed testimony by McKinney and the foreman involved, Merle Spain, showed that the motivating reason why Spain put Greer to proof checking was that he knew Powell was a fast and experienced flag puller and felt he couldn't take a chance with Greer on that job. Spain had another experienced proof checker and Spain put Greer to assisting him at proof checking. Thus the temporary assignments were for a good business reason and had nothing to do with racial discrimination. Further, after Greer had been proof checking just a few days McKinney put a stop to it because there had been no posting and because of what others who had previously applied might think. Then Powell was returned to proof checking and Greer was put on flagging. Greer worked 1 1 /2 days as a flagger and quit Respondent's employ. McKinney was much higher than Spain in executing company policy; and I find that this action by McKinney showed an awareness of the possible racial overtones involved in replacing Negro Powell with Anglo Greer and a desire to avoid any charge of, or to have any, discrimination in this matter. C. Overtime on the Sprinkler System Watch At the remand hearing Respondent brought on much testimony, which was not testimonially challenged, which greatly expanded the proof introduced at the original hearing concerning who performed the overtime work on the sprinkler system. Calmly, and seemingly credibly, Foreman Gene Jackson contradicted his earlier testimony, stating that he had been rushed up to the original hearing and did not remember correctly, that after testifying then he thought much more about the matter, that he had checked employees' overtime records, had spoken to Chambers, that Chambers had not done overtime watching on the panel, and that Jackson now remembered that Pablo Ruiz, a Latin, and Jesse Duke, a Negro, had done some overtime watching on the panel . I believe that Jackson was testifying truthfully at the remand hearing and I credit his testimony. Pablo Ruiz confirmed that sometimes he worked overtime hours on the panel watch, and I believe from observing him- that he too was testifying ' truthfully. Corroborating, McKinney testified that he had seen Latins and Negroes working overtime on the panel watch. The remand evidence proved also that overtime yard watching continued after the panel alarm system was installed, and that Jackson continued to allot those overtime hours to employees who asked for it regardless of their race. Upon the remand evidence, which developed the matter much more fully than Respondent had undertaken to do at the original hearing, I find and conclude that Respondent 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has not discriminated because of race in the allocation of overtime watching on the panel or in the yard. Respon- dent's remand evidence also confirmed the original findings in the Trial Examiner's Decision concerning Respondent's lack of good-faith bargaining with the Union on this subject. D. The Fishing Trips The remand evidence did not change the basic fact about the fishing trips, which is that some of them are segregated affairs. McKinney testified that they were not made annually. The record does not show when they were started, but apparently there was a trip in June 1965 which McKinney testified was not segregated. What happened in 1966 was more fully developed in the remand record than at the original hearing. Assistant Manager McKinney testified that in March 1966 "a group of employees ... requested time off to go fishing." They made the request to Burl3 Smith, the plant superintendent, who relayed the request to McKinney. As the request was initiated by a group of employees in the plant, as McKinney said nothing about their being supervisors or anything but Anglos, and as in the original hearing employee Joe Rodgers testified without contradiction that they were Anglos, I hold that the first group were Anglo employees. McKinney passed the request on to Manager Brown, who said the employees could go and "he" would pay their expenses. Brown added that he would go along and would bring his wife. Then others asked to bring their wives. This request divided the group into two parts, the first with wives and the second without wives. Brown and McKinney and their wives went on the first trip: Some office personnel and supervisors went on one trip. Foreman Spain told Rogers he was going. Both groups went about 550 miles to Falcon Lake, the first group leaving Monday morning and returning Thursday or Friday; the second group leaving Friday morning and returning Tuesday. Respondent paid all employees who went on these trips the same amount of money they would have earned during regular work hours at the plant. McKinney testified that Respondent did not publicize these trips in the plant, but that its failure to publicize them was not to deprive any Latin or Negro from going fishing with the white people. The record suggests no other reason for the silence, however, and to the Latin group it was taken as discrimination against them and the Negroes, as the testimony at the original hearing showed. In June 1966 Respondent did publicize a fishing trip. It was the slack season and Respondent gave "everybody the choice to go fishing or taking off the time with pay. We didn't completely close down the plant, but very nearly." McKinney planned the trip and tried to arrange for the group to go to Falcon Lake. Failing that he arranged for them to go to Lake Buchanan, about 300 miles away. McKinney was in charge of the trip, and he credibly testified that 30 went including 15 Latins, 7 Negroes, and 8 Anglos. Respondent paid for transportation, meals and lodging, and the wages employees would have earned in the plant during regular work hours. They left Thursday morning and returned Sunday. McKinney, an Anglo, testified that several times he has gone fishing with Latins and Negroes. At the original hearing employee Joe Rogers, a Latin, testified that on the trip to Lake Buchanan the employees were restricted to the area and could not "go any place." At the remand hearing Assistant Manager McKinney testified that Respondent supplied the group with all the beer they wanted and that when some of them had too much beer they wanted to go to the nearby town. McKinney testified he thought they were too drunk to go and so he told them they could not go. As this restriction was not an unreasonable one, and as the record does not clearly show that the restriction applied to any except those McKinney believed to be "too drunk," I do not find any discrimination in the position McKinney took. Upon all the evidence concerning the fishing trips I hold that they resulted from the employment relationship and that they reflected the attitude of the Anglo management and Anglo employees towards the Latins and Negroes. The minority-race employees were excluded by silence from the two trips in March, which were exclusively Anglo trips and which included supervisors as well as Anglo employees. Although the June trip was not a segregated affair the employees were not allowed to take their wives, and no supervisors other than McKinney went along to mingle on a friendly basis with the employees. Of note is the fact that Respondent's notice to employees concerning fishing trips, set forth above, did not state that segregated fishing trips were abolished. Upon the entire record I hold that the practice of taking employees on segregated fishing trips, and not abolishing those trips, proves that Respondent has a policy and-practice of invidious discrimination against its employees on account of their race or national origin. E. No Change in Respondent's Transfer Policy One area in which Respondent has made no appreciable improvement towards improving the lot of its minority-race employees since the beginning of its action program is its transfer policy and practice. Respondent's operations are carried on through crews under foremen. Each foreman has a crew. There are three receiving foremen and three receiving crews who receive the cotton from the cotton gins during the harvesting or busy season. There are two warehouse foremen and two warehouse crews who handle the cotton in the warehouses. There is a resampling crew under a foreman. This foreman is also in charge of the sprinkler watching. There are two compressing crews under two foremen. There is an engineering crew under the plant engineer, and a shop crew under a foreman. At the original hearing Assistant Manager McKinney testified: ... The cotton handling business is sort of a business of fragments. You have one operation that fairly intense at one time, I mean'fairly heavy, and then maybe in a few days or a week, that operation has declined in volume and another one is increased. So my job in 3 The record erroneously shows this name as "Earl." It is hereby corrected to "Burl " FARMERS' COOPERATIVE COMPRESS 99 that-in respect of transfers, more or less is to see that when a particular work is declining and another one is increasing, that the assignment of people can be made to compensate for that, and not-in other words, we don't want one department laying off people and another one hiring new people when we can make transfers and use the same people on different jobs. McKinney's responsibility is to see that the system works smoothly. He added, Now, the area that I would function, say, if one foreman is needing more people, then possibly I would know of another crew that their work is declining where we could go to that foreman and they could make arrangements to change some employees. McKinney testified that he does not make or assist in the making of the decision as to which employees are to be transferred, but that transfers result from a request by him or by someone else. He admitted, however, that he discusses with foremen the assignment of various employ- ees to various jobs. At the remand hearing McKinney testified that "due to the nature of the business, it's necessary to transfer people quite often, between jobs, from one job to another and then back." From this I conclude that the nature of the business had not changed. Under Respondent's transfer policy and practice when Respondent transfers an employee to temporary work at a higher paying job than his permanent assignment, Respon- dent continues paying him at the lower rate. This "temporary" assignment frequently goes on for an indefinite period of time and while he is on that temporary assignment the lower paid employee will be doing the same work as that performed by others permanently assigned to the higher classification and receiving the higher pay. As most of the permanent assignments of Negroes and Latins are to the lower paying jobs, and as most of the permanent assignments of Anglos are to the higher paying jobs, this policy amounted to racial discrimination and continues as such. This policy effectively holds the minority races locked in the lower paying jobs. All of Respondent's top management are Anglos. Its plant engineer and 7 of its 10 foremen are Angles. According to Respondent's list of employees, of 200 employees on February 1, 1966, and of 117 employees on February 24, 1966, on both dates only 16 employees were paid Respondent's highest rate in the plant, which was then $1.80 per hour. Of these 16, 13 were Anglos and 3 were Latins. Almost all were proof checkers or employees in the shop. As of March 11, 1966, three proof checkers and three mechanics in the shop, all Anglos, had weekly guaranteed salaries. The record showed that those who received the top wage in the plant are permanently assigned to jobs paying that wage. In addition to the 13 Anglos who received the top wage, on February 1, 1966, only seven additional Anglos and on February 24, 1966, only four additional Anglos were working in the plant. They received lower wages along with the minority race employees. On February 1 there were 138 Latins and 37 Negroes in the plant at the lower wage rates. On February 24, 1966, there were 78 Latins and 17 Negroes in the plant at the lower wage rates. The remand record does not suggest any appreciable change as of now in the numerical ratios of the three races in the plant. The posting of a few jobs under Respondent's action program, and the filling of them without regard to race, has not changed the basic fact that the Anglos have most of the higher paying jobs and that Respondent's transfer policy holds the much more numerous Latins and Negroes locked in the lower paying jobs. Not until, and unless, Respondent decides that a "temporary" assignment is now a permanent one, does the lower paid employee get the higher pay. But Respondent has no announced standards other than possibly "qualifications" for determining when a temporary assign- ment becomes a permanent assignment. It has no time limit after which an employee performing on the higher job will be considered "permanent" on the higher job and will begin to draw the higher pay. McKinney testified the employee's performance on the higher job is a factor. Another is whether he is simply relieving another employee for a day or so. Another is the business outlook for the continued operation of the higher paying job. Another aspect of Respondent's transfer policy and practice relates to its transfer of higher paid employees to lower paying jobs. It continues paying the higher rates whether or not the assignment to lower paying work is temporary or permanent, and regardless of how long the man works on the lower paying job. As most of the higher paid employees are Anglos this aspect of the policy works to the advantage of the Anglos, to the mental detriment of the Latins and Negroes. McKinney allowed that Respondent has considered other possible transfer, seniority, and qualification policies, and that it has arrived at its present policies in the interest of operating the plant as efficiently as possible. McKinney allowed that another way would be to "transfer a man and change his rate immediately. Then you transfer him back and you downgrade him immediately." He allowed that "another practice would be to transfer a man to a higher paying job and change his rate after a given length of time on a job. Also, if you transfer him back to a lower rated job, you downgrade him after a certain length of time." He did not state why either of these practices would be less efficient than the practice Respondent follows. It seems to me that either method would be more efficient than the present practice for it would make the lower employees more satisfied with their employment conditions and thereby make them more efficient workers . McKinney testified: We follow the policy that when we transfer a man to a higher-paying job, we do not change his rate immediate- ly unless it's a permanent assignment . If it's a temporary assignment, we do not change the rate. If we transfer a man to a lower-paying job, we do not change the rate, whether it's permanent or not. We could work a man on a lower-paying job for quite some time and we have. He testified that "We've begun recently to transfer rates downward as well as upward to some extent." Elaborating he said, "Recently there have been instances where we transfer a man from a higher-paying job to a lower-paying job . . . permanently, and lower his rate." He did not 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD elaborate on transferring rates upward, and as appears from McKinney's above testimony and the entire record, Respondent has not changed its policy in this regard. As examples of higher paid employees who were paid their higher rates while performing lower paying jobs over a long period of time, McKinney referred to Charles Speegle and Willie Tyron. During the busy seasons of 1966-1967 and 1967-1968, they were paid 10 cents and 5 cents an hour more than Niconar Gonzales, a Latin who scarcely speaks or understands English, while performing for many months the same lower paying job that Gonzales was classified in. The following busy season Respondent corrected this inequity. Speegle and Tyron were year around employees and Gonzales was a seasonal employee, but this scarcely justified paying them different wages for performing the same work. As Speegle is an Anglo and Tyron a Negro, this inequity for two seasons must have seemed to Gonzales, as indeed it was, as discrimination in favor of the other two races against Latins. The fact that Respondent's practice harbored this inequity for a full season after the beginning of Respondent's action program to eliminate discrimina- tion and the appearance of discrimination, shows how economically discriminatory and insidious Respondent's transfer policy really is towards the lower paid employees. McKinney testified that the employees who achieved the higher paying jobs prior to the beginning of the action program were selected for them "on the basis of a number of qualifications." He testified that "our seniority policy at that time was and still is that we recognize and accept qualifications first and if two people happen to be equally qualified, we would give the man with the longest service consideration." Its "standard for qualifications" under its action program includes skill, ability, efficiency. In the original negotiations prior to the first hearing the employees through their bargaining agent sought to change the inherently discriminatory transfer policy which fosters unequal pay for equal work. As was set forth in the Trial Examiner's Decision the Union sought the higher pay for all hours worked in higher classifications. The Union also sought to have employees moved up to higher classifica- tions by seniority and to have them paid in the higher classifications as of the date they began work in those classifications. The Union also sought posting of all jobs opening up for 7 days or longer and bidding by employees interested. As was set forth in the Trial Examiner's Decision, in the original negotiations Respondent consistently refused to agree to pay the higher rates on temporary transfers, consistently refused any meaningful bargaining on senion- ty as it related to higher classification rights of employees, and consistently refused to agree to job posting and bidding. Respondent's constant position on all these matters was that qualifications should govern and that Respondent shall be the judge of qualifications. Although Respondent was willing to let seniority govern where two were equally qualified, here also Respondent was to be the sole judge of qualifications. Respondent gave no meaning- ful reasons for its position on these issues. 4 Prior to the Court's Opinion United Packinghouse, Food and Allied Workers, AFL-CIO, merged into Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. In these bargaining sessions After the Opinion of the Court of Appeals on February 7, 1969, the Union and the Company had five or six bargaining conferences between March 13 and July 16, 1969.4 No contract resulted. In these negotiations, as before, Respondent continued to oppose arbitration, and continued the positions that Respondent was to be the sole judge of its employees' qualifications and that promotions are to be based on qualifications. In those negotiations Respondent did not propose changing its transfer policy, insofar as the record disclosed. As has been seen above Assistant Manager McKinney testified in substance at the remand hearing that Respondent's transfer policy has not changed. Respondent's action program" contemplated that open- ings in all higher paying jobs would be posted, but it did not cover temporary transfers. Since early 1967 there have been only 10 jobs posted. The record showed there were many many more transfers under the discriminatory transfer policy than there were promotions under the posting policy. Thus the real pinch against the minority races lies in the continued maintenance and operation of the discriminatory transfer policy and practice. Respondent cannot possibly be unaware of this and must be considered to want it this way. Regardless of how or when the few Anglos achieved the top jobs and the many Latins and Negroes achieved the bottom jobs, Respondent's transfer policy tends to anchor them top and bottom right where they are on racial lines. The Union's efforts to change the policy in the negotiations reflected the minority employees' discontent and animosity towards this policy, which discontent and animosity appeared throughout the record. As Respondent knew, all of the Union's negotiators and bargaining committee members were Latins and Negroes, which must have indicated to Respondent that at the plant it is a Latin and Negro union. Upon the entire record considered as a whole I believe and hold that the maintenance and application of Respondent's transfer policy at all times during and since the 10(b) period proved that Respondent has a policy and practice of invidious discrimination against its employees on account of their race or national origin. F. The Jesse Ruiz Wage Rate Matter The evidence on remand concerning the wage rate of Jesse Ruiz confirmed this incident as an example of the operation of Respondent's discriminatory transfer policy against a low paid Latin. The remand evidence also confirmed Respondent's earlier bad-faith bargaining, in which it gave the Union none of the reasons it now asserts for the wage differential between Ruiz and the four Anglo and one Latin weighers. The controlling fact in the many pages of testimony about Ruiz on remand is that Ruiz was classified in a $1.50 job and for many weeks, from late November 1965 until his layoff on March 4, 1966, performed on a temporary basis work closely comparable to what four Anglos and one other Latin were getting $1.80 for performing. When the work he was doing on a temporary basis was finally given a Respondent recognized and dealt with the latter union as the representative of the employees. FARMERS' COOPERATIVE COMPRESS classification after he left, some additional responsibility was added and the newly created job was paid at the top rate of $1.80. There can be no doubt on the remand record that but for Respondent's racially discriminatory transfer policy Ruiz would not for so long a time have done work on a temporary basis at a wage so far beneath Respondent's ultimate evaluation of the worth of the duties.5 On remand Respondent convincingly proved that the frequent assign- ments of Ruiz to reweighing were temporary assignments; that weighing at the warehouses was at a much faster clip than reweighing at the press where Ruiz was and so required added alertness; that the weigher had additional duties. Offset against these, however, was the fact that the weighers weighed for only 1 hour at a time and then were relieved for an hour during which they performed less taxing duties; and the fact, as I am convinced upon the entire remand record and despite Respondent's contention to the contrary, that reweighing required as much accuracy as weighing. If the customer who ordered the reweighing did not expect complete accuracy, he would knowingly be ordering and paying for a service he could not rely upon, which I am unable to believe he would do. G. Respondent's Discriminatory Retirement Plan Respondent's retirement plan has been in existence since its approval in December 1959 by Respondent's board of directors. The qualifying age is 65. During the 10 years since then only five persons have begun drawing retirement income under the plan, although during that time Respondent has employed hundreds and hundreds of employees. A principal reason for this is that to qualify for a pension under the plan one must have had 10 years of unbroken service with Respondent. As was seen in the Trial Examiner's Decision, during its busy season Respondent employs up to 500 employees and during its slack season it employs around 100 employees. It considers one who has worked 12 consecutive months as a regular employee and all others as seasonal employees. So to qualify for retirement income one must have served as a regular employee for 120 months without a break. The hundreds of seasonal employees, some of whom, and perhaps many of whom, have served the Company for many seasons, cannot qualify because they worked only 5 or 6 months a year, even though they worked 10 years or more for the Company. Two long-term Negroes, both 81 years old, testified at the remand hearing. One of them worked full time for Respondent for 12 or 13 consecutive busy seasons. The other worked full time for Respondent for 16 consecutive busy seasons. Neither qualified for retirement income because they had been only seasonal employees. The record establishes that it was exceedingly more difficult for a Latin to qualify for a pension than an Anglo because so far fewer of them had year-round employment and so many more of them had only seasonal employment. The remand record contains lists of employees during a busy season and during the following slack season. During the busy season pay period ending December 16, 1965, there were 287 Latin employees, 57 Negroes, and 47 5 McKinney testified that Respondent evaluated the job as less than the top wage but was persuaded by counsel to pay the top wage to avoid a legal dispute over it. The entire record proved that even if Respondent had 101 Anglos. During the slack season there were 63 Latin employees on July 7, 1966, 19 Negroes, and 14 Anglos. Thus 224 Latins and 38 Negroes, as against only 33 Anglos, did not work during the slack season and hence could not qualify under the retirement plan. Following postings under Respondent's action program, eight nonsupervisory employees have been promoted since early 1967. It is a fair presumption on the entire record, which I make, that these eight employees were or became upon their promotion, regular year-round employees. The remand record does not show that any others have become year-round employees since early 1967. Although these eight were promoted on a nondiscriminatory basis, this fact does not change the conclusion that most of the Latins and Negroes cannot qualify under the retirement plan. It is clear from this and all the evidence that the retirement plan was not established and is not administered to lighten the old age of former employees on the basis of their service to the Company. Rather it was conceived and is administered to help the Anglos and possibly the Negroes, but to exclude the Latins, who as a group because of their number rendered much more and longer service to the Company than the Anglos and Negroes combined. Of the five now drawing retirement income, four are Anglo and the fifth is Mack Jamison, a Negro. A sixth, a Negro, has qualified but has elected to continue working. Jamison didn't get his retirement income until he went to a local lawyer and complained to the Equal Employment Opportunity Commission. Then he was given a lump sum backpay and put on the pension list. Jamison had worked for Respondent as a regular employee from 1948, when Respondent began operations, through 1960, and as a part- time employee from 1961 to 1964. Thus he worked 12 years as a regular employee and 4 years as a part-time employee, making 16 years in all. He qualified for retirement rights in 1959 when he became 65 years old and had completed 10 years as a year-round employee, but he did not receive any retirement income until 1969 when he was 75. When he ceased working for Respondent in 1964 McKinney, who administered the retirement plan, gave him no benefits because Jamison had been absent from the Compress for "several weeks" in 1952 and 1957. McKinney considered this a break in service. Although McKinney has a good memory, it seems unlikely to me that he would have remembered in 1964 that Jamison was absent a few weeks in 1952 and 1957. Rather, it seems to me, he must have checked Respondent's books and learned this and deter- mined not to pay Jamison any pension. It does not appear that he checked the matter with Jamison. The facts were, as McKinney learned in 1969 from Jamison, confirmed by Manager Tom Brown, that when Jamison was away those few weeks in 1952 and 1957, he was on leave of absence with Brown's permission and at the urging or request of Brown, and was working temporarily at another cotton compress in Corpus Christi. This served Respondent's interest in that it reduced its payroll. McKinney could have learned all of this in 1964 if he had tried to find out in an effort to see if Jamison could qualify. McKinney handled established the classification at less than the weigher's rate of, $1 80, this would have been far above the bottom rate of $1.50 where Ruiz was. 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this so shabbily, so ungenerously,- it seems to me, because prior to the advent of the Union Respondent was not concerned with learning the facts so as to help a longtime Negro employee receive his well-earned pension. Respon- dent's treatment of its longtime employee, Jamison, was an example of discriminatory administration of the discrimi- natory retirement plan against the interests of a minority race employee. Upon all the evidence concerning Respondent's retire- ment plan, and upon the entire record considered as a whole, I believe and hold that the maintenance and discriminatory administration of Respondent's discrimina- tory retirement plan at all times during and since the 10(b) period further proved that Respondent has a policy and practice of invidious discrimination against its employees on account of their race or national origin. II. THE REMEDY Having found that Respondent has engaged in and is engaging in certain policies and practices of invidious racial discrimination, I shall recommend that Respondent cease and desist therefrom and take certain affirmative action designed to eliminate these policies and practices. To remedy Respondent's discriminatory transfer policy and practice I shall recommend that beginning at the start of the second consecutive day employees perform any services on any higher rated or lower rated jobs than their own classification and continuing as long as they perform services on the higher or lower rated jobs, Respondent shall pay them the rate of the higher or lower rated jobs. This will give Respondent one free day or part of a day to finalize its transfer decisions and will eliminate the inequities resulting from its transfer policy and practice as displayed in this record. I do not recommend backpay for Jesse Rutz because the discrimination against him occurred prior to the beginning of the 10(b) period, which was March 17, 1966. Ruiz was laid off March 4, 1966. To remedy the discriminatory aspect of Respondent's retirement plan I shall recommend that the plan be amended so that an employee qualifies for benefits after he has served Respondent for 120 months regardless of whether they have been consecutive months and regardless of whether he is a year-round or a seasonal employee; and that if there are any retired employees who qualify under the plan as so amended, Respondent shall begin immedi- ately to pay them retirement benefits and give them a lump sum payment for all back benefits since the date they qualified. I recommend further that Respondent post appropriate notices informing employees of the existence of Respondent's retirement plan, of its eligibility require- ments, as amended, and informing them that they are entitled to its benefits without regard to their race or national origin. To remedy the discriminatory aspect of its fishing trips I shall recommend that Respondent cease and desist from taking its employees on segregated fishing trips and that it notify all employees concerning each company planned fishing trip for employees and notify them that all fishing trips sponsored by Respondent for employees are open to all employees without regard to their race or national origin. In footnote 7 of its Opinion, the Court of Appeals remanded to the Board the question of "compensatory relief." The Union now requests that the Board order the employees to be made whole for any gains they would have received but for Respondent's refusal to bargain with the Union found-by the Board and enforced by the Court. As this issue is now before the Board in several pending cases and as the Board did not specifically refer this question to me in its remand order, I do not pass upon the Union's request but relay it to the Board for its determination. Upon the foregoing findings of fact and upon the preponderance of the evidence in the entire record considered as a whole, I make the following: CONCLUSIONS OF LAW I. By taking its employees on segregated fishing trips according to their race or national origin and by not abolishing segregated fishing trips Respondent has demon- strated that it has a policy and practice of invidious discrimination against its employees on account of their race or national origin. 2. By maintaining and applying its transfer policy and practice at all times since March 19, 1966, Respondent has demonstrated that it has a policy and practice of invidious discrimination against its employees on account of their race or national origin. 3. By maintaining and discriminatorily administering its discriminatory retirement plan at all times since March 19, 1966, Respondent has demonstrated that it has a policy and practice of invidious discrimination against its employees on account of their race or national origin. 4. The above-enumerated policies and practices are violations of Section 8(a)(1) of the Act. [Recommended Order omitted from publication.]