Farmers' Cooperative Compress

National Labor Relations Board - Board Decisions

Nov 10, 1971

194 N.L.R.B. 85 (N.L.R.B. 1971)

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.]