Hollywood Brands, Inc.

HOLLYWOOD BRANDS, INC. 691 Hollywood Brands, Inc. and United Bakery and Confectionery Workers Union, Local 441-B and Retail, Wholesale and Department Store Union, Local 105, AFL-CIO. Cases 15-CA-2854 and 15-CA-2986 February 5,1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On October 19, 1967, Trial Examiner Laurence A. Knapp issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that such allegations be dismissed. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respond- ent filed cross-exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with these cases to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial' Examiner's Decision, the exceptions, cross- exceptions, and briefs, and the entire record in these cases, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner, except as modified herein. 1. The Trial Examiner found, and we agree, that the Respondent's termination of employee Patter- son was not violative of the Act. 2. The Trial Examiner also found, and we agree, that the Respondent discriminated against em- ployee Bailey in violation of Section 8(a)(3) and (1) of the Act. In accord with its contract with the Union, the Respondent gave Bailey an opportunity to qualify for the higher payingjob of "cooker," but failed to provide adequate instruction or the normal 2-week training period because of his union ad- herence. To remedy this unfair labor practice, the Trial Examiner, in addition to, recommending that the Respondent give Bailey a fair opportunity to qualify for the cooker, job and give him this job ef- fective as of November 23, 1966, if he qualified, recommended backpay only if he qualified. The General Counsel contends that the backpay portion of this recommendation does not adequately remedy the violations found. We agree. 169 NLRB No. 94 In view of the evidence establishing that Bailey was not given adequate training or a normal training period, and in view of the Respondent's failure to establish that Bailey was incapable of qualifying for such work, we shall, in order fully to remedy the discrimination against him, additionally order the Respondent to make Bailey whole by paying him a sum of money equal to the amount that he would have earned as wages as "cooker" from November 23, 1966, to the time he is given a nondiscriminato- ry opportunity to qualify for the job.' The amount of backpay due shall be computed in accordance with Board policy set forth in F. W. Woolworth Company, 90 NLRB 289, and shall bear 6 percent interest per annum, as prescribed in This Plumbing & Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Hollywood Brands, Inc., Montgomery, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the Triat Examiner's Recommended Order, as so modified: 1. Delete subparagraph (b) of paragraph 2 and substitute the following: "(b) Make whole William Arthur Bailey for any loss of pay he may have suffered from November 23, 1966, as a result of the discrimination against him, in the manner set forth in our Decision, and, in the event Bailey qualifies for the position of cooker, appoint him to such position, retroactively to November 23, 1966, displacing, if necessary, any incumbent in such position. 2. Delete the notice attached as an Appendix to the Trial Examiner's Decision, and substitute therefor the attached notice. I Yuba Consolidated Industries, Inc., 136 NLRB 683, 688. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: After a trial at which all sides had the chance to give evidence, the National Labor Relations Board has found that in November 1966 we violated the National Labor Relations Act in that, because of his Union membership, we did not give William Arthur Bailey a fair opportunity to qualify for the cream cooker job, and told Bailey that he would not be given such an opportunity because of his Union membership. 350-212 0-70-45 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL give William Arthur Bailey a fair chance to qualify for the cooker job, and we will make him whole for any loss of pay suf- fered by him as a result of our discrimination against him. WE WILL assign him to the job of cooker if he qualifies, make the assignment effective as of November 23, 1966, and give him all the rights he would have had were he assigned to the job as of that date. WE WILL NOT deny any employee advance- ment, or threaten to do so, because of his union membership or activities. HOLLYWOOD BRANDS, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 527-6361. TRIAL EXAMINER'S DECISION STATEMENT OF THE PROCEEDING LAURENCE A. KNAPP, Trial Examiner: I heard this case in Montgomery , Alabama, on April 4 to 5, 1967, fol- lowing preliminary procedures in compliance with the National Labor Relations Act, as amended (herein called the Act).' Following the hearing, briefs were filed with me by counsel for the General Counsel and for Respond- ent. The questions presented are whether Respondent discharged one employee, and demoted another, because I In Case 15-CA-2854, the charge was filed on June 3,1966, the com- plaint issued on January 6, 1967, and Respondent answered the complaint on January 10, 1967. In Case 1'5-CA-2986, the charge was filed on December 20, 1966 , the complaint issued on February 14, 1967, and Respondent answered the complaint on February 16, 1967. The two cases were consolidated by order issued by the Regional Director of the Board, dated February 14, 1967. 2 Respondent has another plant at Centralia, Illinois, not involved herein. 3 In Case 15-CA-2854, the complaint charges discrimination against employee Mrs. Patterson because of her membership in or activities on behalf of United Bakery and Confectionery Workers Union, Local 441-B, affiliated with the Retail, Wholesale and Department Store Union, while the complaint in Case 15-CA-2986 charges discrimination against employee Bailey because of his membership in or activities on behalf of Retail, Wholesale and Department Store Union , Local 105, AFL-CIO. of their respective union activities, and made certain un- lawful threats to employees. Upon the entire record in the case and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT I. RESPONDENT'S BUSINESS; THE LABOR ORGANIZATIONS INVOLVED The complaints allege, Respondent's answers admit, and I find that in annual periods which are representative Respondent, a manufacturer of candy bars at a plant at Montgomery, Alabama (the plant involved herein),2 received directly from points outside the State of Alabama goods and materials, and sold and shipped directly to points outside the State of Alabama products, in each instance having a value in excess of $50,000. Respondent is engaged in commerce and in activities af- fecting commerce within the meaning of Section 2(6) and (7) of the Act. The complaints allege , Respondent's answers admit, and I find that the Unions named in the caption are labor organizations within the meaning of Section 2(5) of the ACt.3 II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Discharge of Mrs. Patterson Mrs. Loraine Patterson began work for Respondent in January 1965. In July of that year she joined the union and was thereafter active in its support and prominent in its ranks.4 Sometime prior to May 3, 1966, she was elected one of the two delegates of the local union to the International convention of the parent Retail, Wholesale and Department Store Union, to be held in Miami, Florida, on May 21 to 26, 1966. On May 3, Lester Bettice, a business representative of the local union, in- itiated a telephone conversation with Douglas Helms, Respondent's personnel manager, in which he informed Helms of Mrs. Patterson's selection as a delegate and requested that Respondent give Mrs. Patterson (who had taken her allowable 1 week's paid vacation in March) time off to attend the convention. Helms told Bettice that he would have to take the matter up with Mr. Harms, the general manager and chief official of the plant. Helms did consult Harms and later that day called Bettice back and informed him Mrs. Patterson had already taken her vaca- tion and that Respondent could not grant her_ the requested time off due to the demand for candy. Bettice pointed out that the request he was making on Mrs. Pat- Similarly, the union parties to the latest collective-bargaining agreement with Respondent (Resp . Exh. 1) are described as Retail, Wholesale and Department Store Union, affiliated with AFL-CIO or its successor, and the United Baking and Confectionery Workers Union Local Number 441-B; collectively referred to in that agreement as "the Union." In the testimony, the situation is described as one involving a "joint" or amalga- mated local union setup , and otherwise refers to activities of Mrs. Patter- son and Bailey in "the Union." While it thus may be that, technically speaking, Mrs. Patterson is. a member of one local union and Bailey of another, nothing turns on these formalities , which I note merely to clarify (so far as the record permits) the situation for the benefit of the curious. 4 She obtained the signatures to union cards of some 25 employees on her night shift (apparently mainly in the summer months of 1965); and became recording secretary of the Union in September 1965, and secreta- ry-treasurer in January 1966. She was a member of the union committee which negotiated the January 1966 contract with Respondent. HOLLYWOOD BRANDS, INC. 693 terson's behalf was not for her allowable vacation but for time off as a favor to her, and requested Helms to see Harms again to reconsider the matter. In response, Helms informed Bettice that "we have already made up our minds." On the next afternoon, May 4, Bettice called Mr. Harms by telephone and asked him to reconsider the matter. Harms told Bettice that he should take up with Mr. Ball, Respondent's attorney, any union business con- cerning Respondent. That same day Bettice called upon Mr. Ball at his office and renewed with Mr. Ball the request for time off for Mrs. Patterson. Ball stated that some company official (the record suggests it was Mr. Harms) had already been in touch with him and had in- formed him that they needed Mrs. Patterson during the week in question and could not grant her the time off. In a short discussion, Bettice made an appeal based on Mrs. Patterson being a good worker and because (as I interpret Bettice's,testimony) Mrs. Patterson had done the Com- pany a favor in taking her vacation earlier than the usual vacation period. As the conversation ended, Mr. Ball agreed to consult Respondent and let Bettice know the result. Not having heard from Mr. Ball, Bettice called Ball by telephone on May 9 and was told by Ball that the Company needed Mrs. Patterson and would not give her the time off. Bettice stated that, according to his informa- tion, Respondent had let other people off for vacation or other reasons, and intimated the view that Respondent was discriminating against Mrs. Patterson. Ball said that Respondent may have given time off to some people, "he \didn't know," but such time off had not been granted "for union business. "5 On May 17, Bettice prepared and Mrs. Patterson signed and sent to Mr. Ball a brief letter requesting the week off for purposes of attending the convention (G.C. Eith.3). By letter dated May 18, Mr. Ball replied denying the request, stating that while it was Respondent's disposition to accomodate its employees wherever possi- ble, "in this case the Company needs your services during the period mentioned." (G.C. Exh. 4.) Despite this rejec- tion of her request, and without notice to Respondent, Mrs. Patterson took time off to attend the convention. By letter dated May 26, Respondent notified Mrs. Patterson of her discharge. (G.C. Exh. 2.) The General Counsel recognizes that the burden is upon him to establish by a preponderance of the evidence that Respondent was motivated to discharge Mrs. Patter- son because of her union activities. He was, however, unable to offer any evidence indicating that such hostility was present in the circumstances surrounding the discharge. In this not unusual situation, he points, rather, to certain circumstances thought to show that Respond- ent harbors a "general antiunion animus. " He refers, first, to a prior Board decision finding that, in contract negotiations between Respondent and the Union in 1961-62, Respondent did not bargain in good faith and in certain other respects did not comply with its bargaining obligation under the Act.6 But these violations are remote in time; they are not of the type which reek with antipathy toward unionization ; and they are counterbalanced by the existence of contractual relations now existing and previ- ously maintained between Respondent and the Union over a considerable period of years without, so far as this record shows, any accompanying discriminatory or coer- cive conduct on Respondent's part. The General Counsel then refers to a miscellany of other random circumstances thought to manifest such a basic animus on Respondent's part, but they fall far short of that target.7 And in fairness to counsel for the General Counsel it should be noted that, in his effort to prove discriminatory motive, he places less emphasis on the circumstances I have just referred to than on others thought to show that Respond- ent did not, in fact,, have for Mrs. Patterson's services during the week in question the need it asserted in deny- ing her time off, and on this basis primarily argues for an inference of discriminatory motivation. I deal with this contention after treating with Respondent's evidence relative to its denial of the time off and its resulting discharge decision. General Manager Harms made the basic decision rela- tive to Mrs. Patterson - that of denying her time off dur- ing the week beginning May 23 - and as the evidence shows, he made that decision on May 3, when it was first communicated to Bettice by Harms' subordinate, Person- nel Manager Helms. According to Harms, he declined the request because of an anticipated need for Mrs. Patter- son's services during the week in question, a need arising from a combination of two principal circumstances: an in- crease in candy production and anticipated absences, of employees on their scheduled paid vacations. In this situation, he testified, he concluded that, especially since Mrs. Patterson had already taken her allowable 1-week paid vacation, she should be kept on the job. As addi- tional evidence offered in support of Harms' explanation, Respondent established that, beginning in May and ex- tending into June, it put on a special sales' promotion of candy bars at discount prices (see Resp. Exh. 3); adduced testimony that this program caused a substantial increase of production in May; introduced statistical data taken from its records showing such an increase in May and June over previous months (see Resp. Exh. 4); and sent a notification from General Manager Harms, dated May 3, to all supervisory personnel directing them to submit to the head office any employee requests for time off "because of the increased requirements for" one of Respondent's candy bars, called Payday, involved in the May-June special sales' promotion program (Resp. Exh. 6). Respondent further adduced evidence that of its ap- 5 Counsel for the General Counsel urges that Attorney Ball's remark that Respondent had not previously granted time off for "union business" manifests union animus , but obviously it does not have any such necessa- ry tendency. The more natural meaning of Mr. Ball's remark is that there was no precedent in Respondent's experience for allowing time off for such a reason as this. In this connection, it may be noted that illness is the only ground specified in the agreement between Respondent and the Unions as requiring Respondent to grant time off to employees. c 142 NLRB 304, order enfd. 324 F.2d 926 (C A. 5). v Counsel adverts to evidence, not contested by Respondent, that after the Union had rejected a wage proposal of Respondent 's in the 1965 con- tract negotiations , a minor supervisor said to Mrs . Patterson that he had taken his "raise" and was "sorry your union couldn't see fit to give you your raise." I fail to see how such a pallid remark can be taken to show a general antiunion attitude on Respondent 's part, either at the time when made or a year later. Similarly msufficient for present purposes are the further circumstances alluded to by counsel: (1) An occasion "some time back" when Respond- ent's officials directed Union Representative Bettice to stop distributing union literature on company premises , and (2) some cursory testimony (concerning an incident not charged in the complaint ) to the effect that on an occasion subsequent to Mrs. Patterson's discharge a minor supervisor told an employee that he had heard some of the girls were getting no a grievance paper in regard to the discharge and remarked to one of them that the girls "had better not sign no paper," and, to another, that "T wouldn't want you or any of the girls out here to sign one." 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proximately 250 employees, about 150 were entitled to paid vacations, and of these 150 some 21 took their vaca- tions in May (of whom 8 took their vacations in the week of May 23); that it hired some 16 new employees in May, albeit partly to cope with employee absences on vaca- tions scheduled to be taken during the summer months; and that because of the increased production then prevalent, Mr. and Mrs. Harms canceled a trip they had planned to make, to attend their daughter's graduate- school graduation ceremonies, during. the last days of May and the first days of June. In view of the nature of its operations as generally described in the record, Respondent would have been en- titled at any time to exercise a discretion or judgment of very wide latitude in determining whether to grant an em- ployee a week's time off as of 3 weeks hence, and the necessity that it be accorded this broad sweep of managerial discretion at this particular time was all the more evident because of the increase in production it had sought through, and could rationally anticipate would result from, the special sales program it had announced for the months of May and June. And this broad scope of managerial judgment carried with it the right to determine the various elements to take into consideration and what weight to attach to them. In short, in a case such as this, Respondent's judgment, which in reality could be no more than an opinion or guess, would as a practical matter be unassailable in the absence of compelling proof that it did not, in fact, base its decision on such manageri- al factors, This brings me to the evidence mainly relied upon by the General Counsel, evidence he offered with a view to showing that in the period surrounding the week of May 23, Respondent pursued with respect to other employees a course of action contrary to that it took in denying Mrs. Patterson's request. This evidence, in part, is that at various points in May, Plant Superintendent Nevois inquired of various em- ployees when they wished to take their vacations (testimony of witnesses Patterson, Mercer, and Nelson), but this testimony is of no significance since Respondent had to prepare advance schedules of vacations for the many employees entitled to them during, principally, the summer months and there is no suggestion that in these inquiries Nevois suggested any particular vacation time. Other evidence is that, at Nevois' request, an employee in the wrapping-machine group on the day shift took-her vacation during the week of May 23 (testimony of Mrs. McDonald);8 that sometime in May in the case of Mrs. Mason, and in the week of May 16 in the case of Mrs. Nichols, both wrapping-machine operators on the day shift, Supervisor Hawkins asked these employees separately to take a week off because work was slow (ap- parently neither of these employees acceded to this request); that in early May Supervisor Dudley asked Mrs. Brown, a wrapping-machine operator on the night shift, whether she would like to take a week off, and in the first or second week of May asked Mrs. Barron, a worker in the enrobing room on the day shift, whether she wanted to take her vacation at that time (which she did not do); and that about mid-May Nevois approached a group of eight of the employees in the enrobing room on the day 8 Mrs. McDonald also testified that her coworker, Ruby Jones, "took off" the week of May 23, but it is not clear whether Jones did so at Nevois' request, or did so for good reasons of her own and with Respond- ent's permission. - 9 If I had to decide this question, I would, on this record, be distinctly hesitant to credit the capacity of these various ladies to recall accurately shift, and asked for volunteers to take their vacations, or time off without pay, at that time in order to forestall a layoff, and that (whether or not pursuant to this request is not clear) a Mrs. Guy of this group took off the week of May 23 (testimony of Mrs. Herrod). Assuming that these various incidents took place at the times indicated in the corresponding testimony 9, none of these incidents involved employees in Mrs. Patterson's position, i.e., enrobing room workers on the night shift. Rather, they involved employees performing different operations (wrapping machines) and, with one exception, on a different shift (the day shift). Also, to a considerable degree they appear to have involved periods other than the week of May 23, and such pertinent evidence as there is of record strongly indicates that Respondent's opera- tions at all times were regularly marked by appreciable fluctuations from day to day and week to week. There is nothing in this record which shows that any excess of staff in other work areas which these incidents might be taken to connote were not the result of causes peculiar to those operations, such as temporary maladjustments between production levels and staff levels. Moreover, the record does indicate that to cope with these recurring temporary maladjustments, Respondent offers employees an opportunity to take vacations or time off without pay, rather than resort to enforced layoffs for the brief periods involved. The General Counsel also relies on the testimony of Mrs. Nelson, Mrs. Patterson's partner in'the enrobing room work, that during the week of May 23 and a suc- ceeding week or so, she did the work of both without a replacement for Mrs. Patterson. The General Counsel's reliance on this testimony rests on an implication from it that the so-called partners in the enrobing room work were, as such, assigned or required to perform some given portion of the work, but the surrounding testimony does not establish tffis. Rather, the evidence shows that the two types of work performed in this area ("breaking," and "forking and rolling," candy bars) were performed by the workers in corresponding groups (two) of eight workers each; commonly there were less than the, full eight of one or another group in attendance; and adjustments were made by shifting employees from one group to'another as absenteeism and like developments required. Moreover, if each set of partners was required, without other adjust- ments, to perform a given amount- of the total work of the group or of the work as a whole, then it would seem that other sets of partners were working at only,half the norm during the period described by Mrs. Nelson. 1 cannot be- lieve that this was the case, and for these various reasons am satisfied that some other factors must, have been at work than this record (which in this respect as in others is distinctly deficient) discloses to close any gap created by Mrs. Patterson's absence. But the overriding consideration is that the test is not whether, as things turned out, Respondent could have gotten along without Mrs. Patterson's services. The test, rather, is whether, in the light of all considerations sur- rounding its operations, Respondent could rationally have concluded when it denied Mrs. Patterson's request for time off that its operations might in some fashion be the points of time involved, a year having elapsed between the alleged times and the time of the hearing (one witness for the General Counsel, Mrs. Mason, wasmistaken by an entire year in testifying that Respondent was on a 4-day week in May 1966). Hence, I am not unfavorably im- pressed by Superintendent Nevois' lack of recollection concerning those of these incidents as allegedly involved him. HOLLYWOOD BRANDS, INC. 695 prejudiced, or even be only inconvenienced, were it to grant her a week off at a future date. And as I have previosly noted, the right to make this decision necessari- ly entailed discretion of a very broad character on Respondent's part to determine what factors were rele- vant and what weight to attach to them, including guesses in these respects since it could not know in advance the extent to which each factor it might consider relevant would be operative some time hence. 10 Bearing all this in mind, the record in this case does not warrant the conclu- sion of an outsider that General Manager Harms did not honestly conclude (necessarily a matter of opinion) that Respondent would (which in a situation like this includes "might") have need during the week of May 23 for the services of Mrs. Patterson, or that he did not, in fact, deny her request on this basis. Accordingly, on the entire record, I find that Respondent did not deny Mrs. Patter- son's request, or discharge her, because of her union membership of activities.' 1 B. Alleged Discrimination Against William Bailey Bailey, a Negro, is an employee of some 5 years' ser- vice. In September 1966, the job of cooker or cook in the kitchen became open due to the termination of employ- ment of one Charlton Headley, who had filled this posi- tion for some 5 years.12 When Respondent put another employee on this job, Bailey filed a grievance (apparently a claim to the position on grounds of seniority) with the grievance committee created under Respondent's agree- ment with the Union, and at a meeting of this committee (apparently held in October) Plant Superintendent Nevois asked for patience on Bailey's part, stating that he would have the next chance at the job. This chance arose in November when the then occupant of the position left Respondent's employ. At that time, Respondent "tried out" Bailey in the position, that is, put Bailey through a period of training and ostensibly gave him a correspond- ing opportunity to demonstrate his capacity to learn the requirements of the job. The precise issue presented13 is whether Respondent gave Bailey a fair and genuine op- portunity to establish his ability to perform this job, or, rather, whether Respondent merely went through the mo- tions of training and trying out Bailey and actually precluded him from consideration because of his union af- filiations or activities. The evidence satisfies me that the latter is what happened. Bailey's ' significant testimony is as summarized in this paragraph. He was given training on the job over a period of 3 days (November 9, 10, and 11), by Stiglet, the day- shift kitchen foreman, until about mid-morning, and by Dickey, the night-shift kitchen foreman, until the mid-af- ternoon end of the day shift Bailey worked on (but for less than the full morning on the first 2'of these 3 days); that in regard to various steps or features of the cooking process (which the evidence otherwise establishes are vital to the proper performance of the cooking operation) he was given no instructions, or was given conflicting directions or instructions by Stiglet, on the one hand, and Dickey, on the other; that he was never permitted to prepare a batch of cream, or even to put the basic in- gredients in the cooker at the beginning step in the cook- ing process, by himself; that while he was under Dickey's tutelage, Dickey cursed him considerably, and suffi- ciently to distract him; that both on the second and third days of his training and trial period Dickey declared to him that "no union nigger" was going to get or have the cooker job; that when Dickey first made this remark on Thursday, he (Bailey) reported it that day to Bettice, the union representative; that (apparently on Friday) he re- ported to Stiglet that Dickey was cursing him;14 that hav- ing been unsuccessful in his efforts on Friday to lodge a complaint with Plant Superintendent Nevois about Dickey's conduct, he went to the plant to see Nevois on Saturday, a nonwork day, at which time Nevois "started fussing" and told him "I think you are the wrong color for that job out there," and that when he then complained to Nevois that Dickey's remarks showed Dickey was dis- criminating against him , Nevois made some response to the effect that Dickey was supposed to carry out his or- ders. In support of portions of Bailey's testimony, the General Counsel adduced the further testimony of (1) Union Representative Bettice that Bailey on Thursday had reported to him that Dickey had made the "no union nigger" statement referred to above, and that on Monday, November 14, Bailey had reported to him that he had been taken off the cooker job and had been to see Nevois about this on the previous Saturday and that Nevois had told him he was not qualified and was the "wrong color" for the job; (2) employee Milford Brown that on one of the days when Dickey was working with Bailey on the cooking job he had heard Dickey make to Bailey the "no union nigger" statement described above; and (3) former employee Young that in the forepart of October (which was, I find, after Bailey had filed his grievance relative to the cooking job), he had heard Dickey tell an employee (whom Young named) that "no union nigger" was going to get the cooking job. 10 Even if it were appropriate to attempt a catalog of the various factors which it might reasonably be thought Respondent might take into account, there is no need to do so. But it may be pointed out that the General Coun- sel is not on persuasive ground in referring to the fact that some of the 150 employees entitled to vacations were permitted to be absent for this reason during the week of May 23 . In addition to the fact that Respondent gave weight to employee preferences in fixing vacation . periods , the fact that some employees were already scheduled to take vacations during the week of May 23 could well have served as a reason not to grant an em- ployee time off during what, on this record, it could well anticipate (or at least hope) would be a period of increased production. 11 In reaching the above conclusions, I have borne in mind the evidence on the basis of which I find below that Respondent accorded discriminato- ry treatment to employee Bailey. But the two cases are not related in time or otherwise, and there are other distinctions present which satisfy me that I am not warranted in drawing from what happened in the Bailey case a reliable inference of discriminatory intention operative , in the case of Mrs Patterson , 6 months previously 12 The cooking operation is the initial and basic step in the manufacture of Respondent's candy bars , since it produces the two types of cream, fondant and nougat, which form the centers of Respondent's candy bars. The ingredients of these creams are sugar, syrup , and water, which are mixed and processed in devices known as cookers , coolers, mixers, and associated apparatus. After these creams are produced in the cooking process , they are further processed by other workers into finished and wrapped candy bars through operations not fully described in the record. 13 The complaint in the Bailey case (Case 15-CA-2986) charges that Respondent "promoted" Bailey to the cooker position on November 9, and thereafter "demoted" him from it. But the evidence fails to show that any such formal personnel actions were taken, and does establish that the issue as teed is the one stated in the text. 14 According to Bailey, after telling this to Stiglet , he asked Stiglet where Plant Superintendent Nevois was and Stiglet told him that Nevois was in the office. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For Respondent's part, Dickey denied having made any such remark to Bailey,15 and Stiglet denied that Bailey had ever complained to him about any such state- ment, or about being cursed, by Dickey.16 Nevois, on the other hand, though he was a Witness for Respondent, did not refer in his testimony to Bailey's account of his con- versation with Nevois on Saturday. The balance of Respondent's case in this connection, contained mainly in the testimony of Dickey and Stiglet and certain photographs of the cooking equipment, was advanced with a view to establishing that (1) the cooking job is a somewhat complicated, exacting, and important one; (2) Stiglet and Dickey trained Bailey on the job, not just over a 3-day period, but for such a period and for the entire following week; (3) because of such things as inat- tentiveness and inability, to remember or follow the in- structions given him relative to the various steps in operating the cooking equipment, Bailey demonstrated his inability to learn the job; and (4) at a session between Nevois, Stiglet, and Dickey, Stiglet told Nevois that he did not "think" Bailey was "doing" the job and Dickey told Nevois that he did not "think" Bailey "was the man" for the job.17 Considering all of the evidence, my more favorable reaction to the demeanor of Bailey over that of Dickey or Stiglet, and the appreciable although not compelling support given Bailey's account in some respects by the testimony of witnesses Bettice, Brown, and Young, I credit the testimony of Bailey as against that of Dickey and Stigler to the extent that conflicts exist. Accordingly, I find that Dickey did tell Bailey twice during the training period that "no union nigger" would be given the cooking job. I further find that Bailey's training and trial period was deliberately limited to a period of somewhat less than 3 full days, a period which I further find was insufficient in the light of prior experience and in view of the con- siderable number of steps and types of equipment in- volved in and other requirements of the cooking processes as described in the record18, and that Foremen Dickey and Stiglet deliberately gave Bailey insufficient training and conflicting instructions. The only, or at least the compelling, explanation for this peculiar course of conduct on the record before me is to be found in Foreman Dickey's declaration that "no union nigger" was going to be given the cooker job. Accordingly, I find that Dickey, Stiglet, and Nevois set about to provide themselves with a pretext for denominating Bailey as unqualified to handle the job, whereas the true reason for the decision to disqualify Bailey was, in part, his union membership.19 The other reason for Bailey's disqualifica- is Dickey also flatly contradicted Bailey's further testimony that, as an example of how he was not permitted to perform any of the operating processes , on one occasion when he started to cause the water to enter the cooker (done by turning a valve) Dickey "told me to take my black hand off' the valve. 16 Stiglet further denied Bailey's testimony that he asked Stigler about seeing Nevois relative to Dickey's alleged conduct. " No witness was asked to state when, by whom, or in what terms Bailey was notified that he was considered unqualified for the job. 18 While it is Respondent 's evidence that the employee who was given the cooker job after Bailey's abortive opportunity was able to perform it satisfactorily on his fourth day on the job, Charlton Headley, the em- ployee who had occupied the post for 5 years prior to September 1966 testified that it took him some 2 weeks to learn the job and that even then he thereafter occasionally spoiled batches of cream. Moreover, on Respondent's own testimony it gave 2 weeks ' training to a candidate after tion, on the evidence I credit, was, of course, his race, but with his union membership one motivating cause, dis- crimination violative of Section 8(a)(3) and (1) of the Act is made out.20 C. The Alleged Threatening Statements Foreman Dickey's statement to Bailey that "no union nigger" was going to get the cooker job constituted a threat to penalize an employee because of his union mem- bership and as such was plainly violative of Section 8(a)(1) of the Act, as charged in the complaint in the Bailey case (Case 15-CA-2986). On the other hand, I find and conclude that the evidence fails to sustain the additional allegation in the Bailey complaint that, through Superintendent Nevois, Respondent threatened employees with discharge, or other reprisals if they filed grievances , in alleged violation of Section 8(a)(1) of the Act. The pertinent evidence is that at a meeting of the union grievance committee with Respondent's representatives, including Nevois, con- vened to deal with a grievance filed by Bailey after his disqualification for the cooker job, Nevois , with a gesture toward his neck, stated that he was "fed up," or "fed up to here" with grievances filed by Bailey. Bailey's grievances in 1966 totaled three : one in connection with his loss of a peanut-roasting assignment in February, and two in connection with the cooker job. Considering all the circumstances, I do not consider this remark of Nevois, which he admitted he may have made, as either explicitly or implicitly manifesting an intention to work reprisals on Bailey or any other employee because of filing grievances . Rather, I regard it as merely an expression of impatience with the grievance procedure. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce and in activi- ties affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. By its treatment of employee William Arthur Bailey, as found above, Respondent has engaged in dis- crimination in regard to terms and conditions of employ- ment to discourage membership in the Union, and thus is an unfair labor practice in violation of Section 8(a)(3) of the Act. 3. By such discrimination, and by the threat of its su- pervisor, Dickey, that "no union nigger" would be given the cooker job as found above, Respondent has engaged Bailey's teal before concluding that this employee (Atwell) was unqualified is In view of Dickey's supervisory status (that he and Stiglet are each su- pervisors within the Act's definition I find is established by the testimony of General Manager Harms and other evidence, including but not limited to Resp. Exh 6), and Bailey'ss membership on the union grievance com- mittee provided for in the agreement between Respondent and the Union, I cannot believe Dickey's testimony that he did not know that Bailey was a member of the Union, and this circumstance is one , but not the sole reason, for my disbelief of his testifmony in other significant respects. 20 The complaint in the Bailey case (Case 15-CA-2986) alleges that Respondent discriminatorily failed to promote Bailey to the cooker job after it first became open and before Bailey was later given his try at the job However, counsel for the General Counsel makes no argument in support of this allegation in his brief and made no attempt at the hearing to refute Respondent's evidence that Bailey was given his chance in the order of seniority Accordingly, I find that this allegation is not sustained by the evidence. HOLLYWOOD BRANDS, INC. 697 in unfair labor practices in violation of Section 8(a)(1) of the Act. 4. Respondent has not engaged in any other unfair labor practices alleged in the complaints herein. THE REMEDY The Order I recommend for issuance by the Board, as set below, requires Respondent to cease and desist from engaging in further violations of the character found. As affirmative relief necessary to remedy the violations committed and otherwise to effectuate the policies of the Act, the Order contains provisions relative to Respond- ent's failure to give Bailey a fair and nondiscriminatory opportunity to qualify for the cooker job. In this latter connection, it appears that the cooking job is appreciably complex and at the same time of rather critical im- portance to the whole candy bar producing processes, and that Respondent has in the past tested the abilities of .interested persons, through a period of on-the-job in- struction and evaluation, before making any final or definitive assignment to the post. In these circumstances, I do not believe it proper to require Respondent to install Bailey outright in the post (and do so as of November 1966), even though there exists the possibility that had Bailey been given a fair chance at that time he might then have demonstrated his capacity to perform this work at acceptable levels of competence. Hence, Bailey should be required to demonstrate his competence, but he must be given this opportunity under conditions devoid of a discriminatory purpose and otherwise designed to insure him a full and fair opportunity to qualify. The provisions of paragraph 2(a) of my Recommended Order are designed to provide him with this fair chance. The order must require generally that Respondent give to Bailey a wholly nondiscriminatory opportunity to qualify. Of course, there is no specific wording or_set of requirements which can conclusively prevent Respond- ent from giving effect in subtle ways to an intention to disqualify Bailey on antiunion grounds, if that should con- tinue to be its intent. However, there are some safeguards which can be erected to limit or render less feasible the ef- fectuation of any such purpose. Thus, the order I recom- mend requires that Foreman Dickey, who previously openly declared his discriminatory purpose, be excluded from any participation in the instruction and evaluation process provided for in the Recommended Order; requires that the instruction be adequate in scope and ex- tend over a period of not less than 2 full weeks (a period heretofore used by Respondent); and requires that, in evaluating Bailey, Respondent judge him against levels of competence Respondent has considered adequate in ap- pointing prior occupants to or retaining them in the position.21 My proposed order contains the further requirement that if Bailey proves himself qualified, he be promptly appointed to the position, and that his appoint- ment to the position take effect as of a suitable date in November 1966,22 and that he be paid lost earnings due23 and be credited with any other rights, privileges, and emoluments he would have been entitled to had he then been appointed to the position, since his ability now to qualify must be deemed to have existed when he was first, but discriminatorily, "tried out." My proposed order also requires Respondent to post notices to the employees in a form I consider appropriate. Upon the foregoing findings and conclusions, and upon the entire record, I recommend pursuant to Section 10(c) of the Act that the Board issue the following: ORDER Respondent, Hollywood Brands, Inc., Montgomery, Alabama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in United Bakery and Confectionery Workers Union, Local 441-B or in Retail, Wholesale, and Department Store Union, Local 105, AFL-CIO, or any other labor organization, by dis- crimination in regard to hire or tenure of employment or any term or condition of employment. (b) Threatening to engage in any such discrimination specified in paragraph 1(a), above, to discourage member- ship in said organizations or any other labor organization. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed to employees in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Afford to William Arthur Bailey a nondiscrimina- tory opportunity to demonstrate his ability satisfactorily to perform the job known as cooker or cook. Said nondis- criminatory opportunity shall, without limitation, include: (1) on-the-job instruction and training, adequate in scope, of Bailey with respect to all procedures, operations, and other requirements of the cooking processes, for a period not less than 2 full weeks' time; (2) exclusion of Foreman Samuel Rem Dickey from any participation in the provi- sion of said instruction and training of Bailey and in the evaluation of Bailey's qualifications for said position; and (3) an evaluation of Bailey's qualifications for said posi- tion by reference to standards and levels of competence Respondent has considered acceptable in heretofore ap- pointing prior occupants to or retaining them in said posi- tion, and without regard to his union membership or ac- tivities. (b) In the event Respondent deems Bailey qualified for said position, appoint him thereto retroactively as of November 23, 1966 (displacing, if necessary, any occu- pant of said position), accord to him as of that date all rights, privileges, and emoluments incident to said posi- tion, and reimburse him for lost earnings in the manner 21 Minds more ingenious than mine may think of other or better safeguards with which to surround Respondent's conduct in instructing and evaluating Bailey, with a view to preventing any discrimination. 22 There is no way to determine upon what exact day Bailey's appoint- ment would have been made had he qualified after a nondiscriminatory trial in November 1966. But, since a matter of a few days one way or another is of no particular significance, and bearing in mind the 2 weeks' period of training Respondent has given other employees, the order fixes this date as November 23, 1966 (November 9 having been the first day of Bailey's prior trial period). 23 The cooker job pays more per hour than the job Bailey has had. "Lost earnings" as used in the order shall mean a sum of money equal to that which Bailey would have earned as wages on the cooker job from November 23, 1966, to the date of his appointment to that position, less his net earnings during such period, computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and bearing in- terest at 6 percent per annum as prescribed by the Board in Isis Plumbmg & Heating Co., 138 NLRB 716. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD described in the section of this decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant or necessary to the determination of backpay due and rights, privileges, and emoluments pro- vided for under the terms of this Recommended Order. (d) Post at its plant in Montgomery, Alabama,copies of the attached notice marked "Appendix."24 Copies of said notice, on forms provided by the Regional Director for Region 15 , after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 15, in writing, within 20 days from the date of the receipt of this Decision, what steps have been taken to comply herewith.25 [Text of Trial Examiner's Appendix omitted from publication. I 24 Footnote omitted from publication as necessity for language changes eliminated by Board Appendix. 11 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify the Regional Director for Region 15, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith "