The record indicates that respondents all had, and were expected to have, a certain amount of versatility in the food preparation and purveying field. The bakers were also qualified as cooks. The managers were competent to double as cashiers, checkers and waiters. Several witnesses mentioned that Chinese restaurants are run differently from other restaurants, in that the managers circulate, sometimes taking the orders and serving the food themselves and helping with the cleaning-up. Mr. C and Mr. M both testi

fied that a degree of versatility is necessary in all lines of work. There was no painful stratification by "job sheets," as there is in the Civil Service system. There was considerable travel among the employees (until these proceedings began), some of them returning to the Philippines, or taking leave in Hong Kong, and being replaced by others. The nature of C and M-'s operations at that time was fluid, depending on the movement of troops and the progress of construction work on Guam. Respondents entered Guam shortly before or during the Korean War. Snack bars and other installations opened and closed as the need arose.

The special inquiry officer has stated that the best evidence of the capacity in which the respondents were employed, the purpose for which they were brought to Guam, ordinarily would be the official record of arrival, but here there was no such record so recourse must be had to such records as there were. Since respondents arrived during an era of impossible record keeping, the best evidence is the capacity in which they were actually employed either immediately or within a reasonable time after their arrival. The special inquiry officer quotes Ex parte Kaichiro Sugimoto, 33 F.2d 926, aff'd 38 F.2d 207, cert. den. 281 U.S. 745, and Tulsidas v. Insular Collector of Customs, 262 U.S. 258, that "It is his status at the time of entry, and not that subsequent to entry which controls." In Tulsidas and Sugimoto there is no indication how long after the aliens' arrivals as laborers that they changed their occupations and became a merchant and a restaurant keeper. However, the special inquiry officer has interpreted this rule most rigidly, declaring that if there was any lapse of time after an alien's arrival before he was put into a managerial or supervisory position he was not brought to Guam to be employed in such a position. The special inquiry officer found in several cases where the aliens were given temporary jobs until they were permanently assigned, that it was the temporary employment, no matter how brief, which governed the status in which they entered. He states (p. 37, special inquiry officer's decision), "If he arrived on Guam on April 3, 1951, for the purpose of being employed as a waiter, the fact that the next day he was assigned to work as a cashier would not have made him admissible on April 3, 1951." In Tulsidas and Sugimoto the changes were

radical-from laborer to merchant and restaurant keeper. In the instant cases, the changes were only of a degree. We must look at the actual work done by respondent, the manner in which he was employed from the time of his arrival to determine the true capacity in which he was to be used. Suppose that a group of illiterates was imported into Guam, all accidentally designated ahead of time as "managers"; suppose further, that following their arrival they were found to be incompetent and were demoted to sweepers the next day. Would it still be contended that the original erroneous designation controls? An employee of C— and M— may have been asMsigned for a few weeks immediately following his arrival on Guam to work as "counterman" in the same establishment where he became manager the following month, but this does not mean that he entered as a laborer. Most of these people were coming to Guam as replacements for those who were returning to the Philippines, or going on leave. One of the personnel people testified that their principal problem was one of "home sickness," and that many of the employees refused to stay on Guam more than three years. It would seem almost inevitable that a new "manager" or even chief cook or baker might break in on a new job under the direction of the departing supervisor.

The records relating to respondents are sparse, partly due to the fact that prior to the arrival of the Immigration and Naturalization Service on Guam in 1952 immigration records were kept in a less precise manner than has been customary under the aegis of the Service. It is also alleged that many of the records of C and M— were destroyed in a typhoon, and that they have moved their offices on Guam many times. Exhibit R-23 is a list of respondents and the wages shown by the first monthly sheets following their entries into Guam. This list carries a note to the effect that the first pay sheets have been turned over to the "United States Immigration, Agana, Guam,” as exhibits during the previous trial. There was considerable discussion as to whether or not these pay sheets were turned over to a representative of the Immigration Service, and, if so, their ultimate disposition. So far as we can discover, there is no conclusion as to whether or not the Immigration Service actually received these records, or as to the disposition of them if they did exist.

There are the following kinds of records:

(1) Application and Personal History sheets. Mr. C testified that the information forms for each employee were probably filled out by V-Y— in the Philippines, although the individuals were hired personally by Mr. C―, and that the fact that the form shows that the respondent was entering Guam in the position of checker is not necessarily conclusive that that is the capacity in which he was employed.

(2) Daily time reports and pay sheets. Sometimes the space for job classification was filled in, but often it was not. Appendix I shows the inconsistency of the job designations. The pay sheets are proof only of the wages received. The employees were not concerned with the job classifications shown on the pay sheets; each employee who was asked about it stated that he could not read English, that he was concerned only with getting his pay and counting it to be sure it was right. The special inquiry officer has stated that the distinctions between "cook" and "chief cook" and "baker" and "chief baker" were rather consistently respected by the company and by respondents. The distinctions were not maintained until after these proceedings began. When respondents became informed of the issues involved they commenced to insistently and consistently emphasize the titles they believed would lift them out of the contract-labor category.

(3) Arrival records, Pan-American Embarkation/Disembarkation cards, etc. There are only a few of these, and usually they state the holder is entering Guam as a "worker" or "to work." They are made out in English, and there is no way of knowing who wrote most of them.

(4) The company negotiated formal contracts of employment each year with job classifications and pay scales. The special inquiry officer states they are of little value, because those in the record were each negotiated one year after the employee's last entry.

(5) Each record contains three sets of testimony-a. The brief sworn affidavit of January 1955, made to an investigator for the Immigration and Naturalization Service, prior to the issuance of the warrants; b. the record of the first hearings in November 1955; c. the record of the second hearings in June 1958.

With CYL the instant case, there is no problem. Respondent testified that when he came to Guam he came to be a checker. He also testified that Mr. C told him he would give him a job as manager. The special inquiry officer asked him what position he actually came to Guam to fill. It was clear that respondent considered the terms "checker" and "manager" to be interchangeable. Immediately after he arrived he took up his job as manager at the Marbo Restaurant. The record contains one pay sheet for March 1951 showing that respondent received $87.67 for March, not having started work until March 7th, and his position is shown as "manager" (exh. 5). The record also contains a contract entered into between respondent and C and MJanuary 6, 1952, containing the statement "job classification, assistant general manager. Wage rate: $150 a month" (exh. 8). Respondent made a sworn affidavit on January 19, 1955, stating that at the time of his last entry he was destined to be assistant general

on

manager of all of the C

and M

restaurants on Guam, and that at the time of his statement (exh. 4) he was employed by Far East Trading Company as manager of the Town House Coffee Shop. At the reopened hearing additional records and testimony were obtained, and nothing contradicts the record established in the earlier hearing. Respondent testified on June 3, 1958, that he had worked for CC at Clark Field in the Philippine Islands as cashier, collecting the receipts and disbursing money for wages and supplies at all of C's five restaurants at Clark Field from 1946 to 1949.

Respondent was entitled to a finding that he was brought to Guam for the purpose of being employed in a position which does not fall under the contract-labor category, and that he is, therefore, entitled to the presumption contained in 8 CFR 4.2(j) as a person who was lawfully admitted for permanent residence on his arrival on Guam on March 6, 1951. This is in accordance with the order we made on August 31, 1956. The order terminating proceedings as to

him was correct.

In summary as to all employees, the record establishes that it was well understood by the employees and the concessionaires on Guam that entry was authorized for periods of one year only. No grant of permanent residence to respondents was made or intended at time of entry. Counsel's continuous objections, that the testimony taken and evidence adduced were not within the scope of the Board's 1956 order reopening the record, were time consuming and were correctly overruled. The order was, and was intended to be, broad in its scope and in its interpretation. The record is much more informative than it was in its previous state.

The four C and M employees who were admitted by the special inquiry officer are, on the average, better documented than the eight who were not admitted, but the existence of more documents should not determine their right to remain. No single test can determine the classification of contract labor, such as, "Does he perform mental as opposed to menial labor?" We have attempted to look at all the elements-the documents, the skill, experience and competence of the employee, and the manner in which his talents. were utilized following his admission. The record establishes that those who were admitted were not supervisory or superior in relation to the others in the group. Appendix I was designed to show the comparative salaries and job designations of the twelve. All were supervisory in relation to the Filipino employees and received three to five times the pay of the kitchen helpers, bus boys and waiters. Each of the bakers was in charge of a different shift, or at a different bakery, at least within a few days of his arrival. Each cook was head cook in a different restaurant. The cooks and bakers

were all skilled in commercial and mass cooking. Each manager or checker had supervisory responsibility for a different operation or organizational outlet, although in some cases he may have been employed briefly following his arrival in a lesser capacity until the appropriate opening became available. The duties of all respondents no doubt involved a large amount of physical activity. This alone does not make them menials or contract laborers. The concessionaire imported respondents into Guam for the purpose of employing them as supervisors, and apparently each had administrative and instructive responsibilities in addition to his production job. All twelve of the C and M employees are entitled to the presumption of lawful residence contained in 8 CFR 4.2(j). Proceedings will be terminated as to them.

Order: It is ordered that the order of the special inquiry officer terminating proceedings be and is hereby approved.