Hollywood Brands, Inc.

National Labor Relations Board - Board Decisions

Feb 5, 1968

169 N.L.R.B. 691 (N.L.R.B. 1968)

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 "