Memphis Furniture Mfg. Co.

MEMPHIS FURNITURE MANUFACTURING CO. Memphis Furniture Manufacturing Co. and United Furniture Workers of America, Local 282. Case 26-CA-755 1 September 24, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 23, 1980, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. The Administrative Law Judge properly held that Respondent violated Section 8(a)(5) and (1) of the Act by failing to comply with its promise to continue, for the life of the 2-year contract, pay- ment of the Christmas bonus in the same manner as in preceding years. However, Respondent contends that the Administrative Law Judge did not include in his Decision a ruling on its motion to dismiss the complaint. Although the Decision does not specifi- cally discuss this motion, his finding that Respond- ent acted unlawfully in unilaterally modifying the contractual Christmas bonus provision is tanta- mount to a denial of the motion. Respondent also challenges the Administrative Law Judge's unfair labor practice findings on the ground that he failed to draw an adverse inference from the fact that Don Parker, one of the spokes- men for the Union, did not testify concerning ne- gotiations with Respondent. In crediting Willie Rudd, the chief union representative, who was per- mitted to use his written notes without objection from Respondent, and in discrediting Ted Yeiser, Respondent's attorney and principal spokesman, and Paul A. Osborne, Respondent's director of in- dustrial relations, the Administrative Law Judge relied in part on Respondent's minutes of the cru- cial February 24, 1978, bargaining session and the January 10, 1979, letter from Yeiser to the Board, both of which supported Rudd's testimony and cast doubt on that of Yeiser and Osborne. Although Parker did not testify, the minutes of the February 24, 1978, meeting show that he was present and joined Rudd in pressing for continuation of the bonus and that Yeiser agreed thereto. The record 252 NLRB No. 25 further shows that two employee members of the Union's negotiating team, Charlene L. Grandberry and Mathew L. Dowell, corroborated Rudd's ac- count of the negotiations by testifying that Yeiser assured the union team that the Christmas bonus would be paid as usual. In view of the foregoing, we find no basis for reversing the credibility reso- lutions of the Administrative Law Judge.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Memphis Fur- niture Manufacturing Co., Memphis, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. I Standard Dry Wall Product Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unilaterally and without con- sent of United Furniture Workers of America, Local 282, fail and refuse to pay Christmas bo- nuses due you under any collective-bargaining agreement between us and the Union or other- wise unilaterally modify the provisions of any such contract during its term. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights under Section 7 of the National Labor Relations Act. WE WILL honor and give retroactive effect to the terms and conditions of our March 12, 1978, contract with the Union relating to Christmas bonuses, and WE WILL pay each of you the amounts you lost since December 1978 because we did not pay the Christmas bo- nuses due under that contract, with interest on the amounts due. MEMPHIS FURNITURE MANUFACTUR- ING Co. 303 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge: The initial charge in this case was filed on December 21, 1978, by United Furniture Workers of America, Local 282, referred to herein as the Union. The complaint issued on June 11, 1979, alleging that on or about De- cember 21, 1978, Respondent reduced the amount of a yearly Christmas bonus paid to unit employees unilateral- ly without notice to, bargaining, or consultation with the Union, thereby violating Section 8(a)(5) and (1) of the Act. In its answer Respondent denies the commission of any unfair labor practices. A hearing was held before me in Memphis, Tennessee, on October 24 and 25, 1979. At the conclusion of the hearings the parties waived oral argument and were given leave to file briefs which have been received from the General Counsel and Respondent. Upon the entire record in this case and from my obser- vation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT Respondent is a Tennessee corporation engaged in the manufacture of furniture at Memphis, Tennessee. During the 12-month period preceding issuance of the complaint, Respondent had direct inflow and outflow of materials and products valued in excess of $50,000. I find that Re- spondent is an employer engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Payment of Christmas bonuses by Respondent before 1977 Before May 1977, Respondent's production and main- tenance employees were not represented for purposes of collective bargaining. For at least 15 years Respondent had paid its employees Christmas bonuses. Hourly em- ployees with 1 to 5 years of service were given 20 hours pay and those with 5 years or more of service were given 40 hours pay.' An employee handbook effective January 1, 1972, which was distributed to all employees, provided: These findings are based on the testimony of three employees as to the Christmas bonuses they received, the provisions of the 1977 employ- ee's manual, and the absence of any evidence to indicate that employees were not treated uniformly or that Respondent deviated in any previous year from the practice the witnesses described. Christmas Bonus payments are at the discretion of the Company. This is decided on a year to year basis. That handbook was superseded by a manual dated Janu- ary 1, 1977, with the following provision under the head- ing of holidays: *Christmas Bonus - 2-1/2 to 5 days *Christmas Bonus payments are at the discretion of the Company. This is decided on a year-to-year basis. Hourly employees must be employed one year to December 25th to be eligible for 20 hours pay. After 5 years, the hourly employee is entitled to 40 hours pay. In case of sick leave, hourly em- ployees will be paid a Christmas Bonus if they had worked at least 1,000 hours prior to December 25th. The Bonus will be paid when the employee returns to work. 2. The negotiation of a collective-bargaining agreement On September 15, 1977, the Union was certified as the representative of Respondent's production and mainte- nance employees. On November 3, 1977, negotiations began for an initial collective-bargaining agreement. In connection with the negotiations the Union requested and received a copy of the 1977 employees' manual. At the outset of negotiations the Union gave Respond- ent a set of proposals including a proposal to pay em- ployees increased Christmas bonuses based on a sliding scale dependent upon length of service. Respondent took the position that it wanted to eliminate all Christmas bo- nuses. The issue had not been resolved in December 1977, when the usual time came for payment of the Christmas bonuses. At that time Yeiser, Respondent's attorney and principal spokesman in negotiations, told Rudd, union president and principal spokesman, that Respondent would give Christmas bonuses in 1977 based on the same formula as in the past, and it did so. On February 22, 1978, the Union modified its Christ- mas bonus position and proposed that Christmas bonuses be continued as in the past if Respondent would provide two additional holidays. 2 That proposal was rejected, and the Union later proposed that the Christmas bonuses be continued as in the past independent of the holiday proposal. Respondent adhered to its position that there be no Christmas bonuses. The final negotiating meeting was held on the night of February 24 and the early morning of February 25. During the night, after several caucuses, Respondent made a package proposal to resolve remaining issues as to wage rates, insurance, and Christmas bonuses. As part of that proposal, Yeiser said that Respondent would con- tinue its present policy concerning the granting of Christmas bonuses.3 ' While Rudd testified that he made this proposal in early February, his notes indicate that he made it on February 22. a Several witnesses testified to varying versions of what Yeiser said. Notes taken by Yeiser's secretary during the negotiations show that Continued 304 MEMPHIS FURNITURE MANUFACTURING CO. On March 2 or 3 Rudd, Union Representative Donald Parker, Respondent's director of industrial relations, Os- borne, and Yeiser met in Yeiser's office to put into con- tract language those aspects of the agreement which had not yet been reduced to writing. At that time Yeiser pre- sented the following as proposed language with respect to Christmas bonuses: It is agreed and understood that the Company shall have the discretionary right to give a Christmas Bonus or remembrance to all or some of the em- ployees covered by this agreement. It is understood that this bonus is a gratuity given or not given in the sole discretion of management, and, further it is understood that management has the discretion to establish the amount of the bonus, the time it is given, and also the requirements which an employee must meet in order to receive the bonus. Nothing herein shall be construed as guaranteeing that a Christmas bonus must be given to any or all of the employees covered by this agreement. Rudd told Yeiser and Osborne that there was no way he could agree to the proposed language. Yeiser and Os- borne then caucused and returned to propose contract language based on what was in the 1977 employees' manual. Yeiser dictated the provision which Rudd wrote at the bottom of Respondent's proposal, as follows: The Company shall continue its present policy con- cerning the granting of discretionary and gratuity (sic) Xmas bonus or remembrance. Rudd said that he was not too much "in love" with the language, and Yeiser observed that Respondent was very sensitive about the Christmas bonus and the language the Union wanted in the contract. Yeiser asked Osborne to correct him if he was wrong and then stated that Re- spondent had no intention of tampering with the Christ- mas bonus. Osborne did not contradict him. Yeiser also said that it was an initial contract and that the parties were going to have to trust each other if they were going to establish a good working relationship. Rudd and Parker then agreed to the proposed language.4 Yeiser described Respondent's bonus offer twice, first stating, "we will continue the Company's present policy concerning the granting of a Christmas bonus." According to the notes, after ironing out some details as to the total package, Yeiser said further "If we can get tentative agree- ment on these rates, as I said before we renew this proposal. We will pay S20 on insurance and initially we will agree to continue the policy of .... I can hardly get it out .... I am almost ready to defer to Mr. Osborn .... We will continue to administer the policy or apply the cur- rent policy that we have concerning Christmas bonuses. Hot Ho! Ho!." At that point, according to the notes, Rudd said, "That wasn't too hard to say. You must feel like Santa Claus." I regard the notes as more accu- rately reflecting what was said than the memories of the witnesses more than a year after the events. Specifically, I do not credit the testimony of Respondent's director of industrial relations, Osborne, that Yeiser slowly stated for emphasis that Respondent would "continue our discretionary policy of Christmas bonus." That testimony not only lacks corroboration but is in conflict with Yeiser's notes and a letter submitted to the Board by Yeiser in support of Respondent's position after the charge in this case was filed. 4 Rudd so testified. Parker was not called as a witness. Osborne and Yeiser testified to a substantially different version of the facts. According to them Respondent's proposal set forth above was presented to Rudd and Parker at a side bar meeting before the February 24 negotiating On March 10, the parties met again, and Yeiser pre- sented final drafts of contract language to be initialed. At that time Yeiser presented a slight revision of the lan- guage Rudd had written down on March 3 which Rudd accepted. It appears as article XV of the contract as fol- lows: Christmas Bonus Section 1. The Company shall continue its present discretionary policy concerning the granting of gra- tuitous Christmas bonuses. meeting and was rejected by Rudd as either too long, too broad in scope, or too obvious. They testified that Rudd then proposed as an alternative the wording which he wrote at the bottom of Respondent's proposal. Ac- cording to them, practically all the details of the agreement, including the Christmas bonuses, were worked out in the side bar meeting before the last negotiating session, and the parties engaged in what was essentially an elaborate charade for the benefit of the union negotiating committee to bring the committee to the point reached in the side bar meeting. They testified also that on two occasions before and after the final negotiating session Rudd asked if Respondent would really pay the bonus and that Osborne replied that he did not know and that it would be decided at the appropriate time. In a statement of position filed by Yeiser during the investigation of this case in response to a request by a Board field examiner, Yeiser strongly denied that he at any time made a commitment that Respondent would definitely pay Christmas bonuses. In that statement Yeiser set forth a detailed description of the final negotiating session in which he stated that he recalled that the Union proposed that Respondent pay the Christmas bonus for 2 years of the agreement which he understood to mean that the Union contemplated that the amount of the bonus under the contract would be the same as that paid in 1977. He stated that after Respondent rejected the proposal several times that night, in an effort to reach agreement, Respondent linked it with two other issues and pro- posed that, "the Company would continue its present policy concerning the granting of Christmas bonuses," and that agreement was reached on that package. According to Yeiser's statement, "No language was drafted and initialed at this point in negotiations on any of the matters involved in this package," and at the conclusion of negotiations "the parties ac- knowledged that language would have to be drafted to embody the agreements reached during that night of bargaining-one of those agree- ments being the language concerning the Christmas bonus policy." Final- ly, Yeiser set forth that the parties met on March 10 at his office and that in preparation for that meeting "I had undertaken to draft the necessary language on all matters which had not been previously initialed." At no point in Yeiser's lengthy statement of position did he refer to side bar meetings or to the fact that language essentially the same as that initialed by the parties on March 10 had been initially drafted by Rudd. Also, Yeiser did not mention any questions by Rudd about the bonuses or Os- borne's replies. At the hearing when Yeiser was asked on cross-examination about his failure to mention Osborne's statements to Rudd, he replied that he wrote his position statement in response to inquiries by the field examiner and that "She did not ask me about side bar meetings and I did not go into those meetings, for obvious reasons." Yeiser's statement of position was written by him in his office follow- ing a conference with the Board's field examiner. It is a detailed state- ment which includes details, particularly as to March 10 and 14 meetings, of far less significance than the matters omitted from it. It affirmatively states that the Christmas bonus language remained to be drafted at the conclusion of the February 24 negotiations. I conclude that the only ob- vious reason for the significant omissions from that statement is that they did not happen. While Rudd's testimony is uncorroborated, no reason was advanced for Parker's failure to testify, and Rudd's testimony suffers from some ob- vious inaccuracies as to detail, I have credited him and not Yeiser or Os- borne as to the side bar meetings and the drafting of the contract lan- guage. 305 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The 1978 Christmas bonus On December 6, 1978, Respondent posted the follow- ing notice to its employees: Christmas is approaching, the year 1978 is winding down, and many of our employees are wondering and asking about the possibility of any Christmas Bonus this year. We are pleased to announce that some worth- while Bonus will be given to our employees this Christmas. At this same time, we would like to thank every one for your own help in making possible the recent turn-a-round in our Quality and Production. This has not been a good year, but with the ef- forts that are presently being put forth, we can and will have a better year in 1979. We extend to each one of you our wishes for a healthy and happy holiday season and a more pros- perous New Year. Shortly after the notice was posted, Union Vice Presi- dent Moore telephoned Respondent's main plant person- nel and said that he had received several calls from em- ployees and stewards questioning whether or not the Christmas bonus would be paid and that there were a lot of rumors flowing back and forth. Moore asked Grimes what he knew about it. Grimes replied that he just posted a notice on the bulletin board about the Christmas bonus and read the notice to Moore. Moore said "Fine," and commented that he did not realize how the rumors had gotten started. At Moore's request, Grimes sent him a copy of the notice. There was no further contact be- tween the Union and Respondent about the bonuses until the payments were made on or about December 21. On that date, employees with 1 to 5 years of service were given 10 hours pay and those with 5 or more years of service were given 20 hours pay, half of the amounts paid in previous years. Thereafter, the Union filed the charge in this case and a grievance over the amount of bonus payments, which Respondent denied. The Union sought arbitration, but Respondent took the position that the grievance was not arbitrable and declined to proceed. B. Concluding Findings The General Counsel contends that the contract when construed in the light of the negotiations required Re- spondent to pay its employees a Christmas bonus com- puted on the same basis as in prior years. The General Counsel contends in the alternative that Respondent had a duty to notify and consult with the Union before making a change in its Christmas bonus, and that even if Respondent retained the right to withhold the bonus uni- laterally, it had a duty to notify and bargain with the Union before making any change in the method of com- putation of the Christmas bonus. Respondent contends that the contract on its face shows that the Union waived any right to bargain over Christmas bonuses during the term of the contract and that there is no cause to look to extrinsic evidence to determine its meaning. Respondent contends in the alternative that even if ex- trinsic evidence is considered, that evidence shows that it was the intent of the parties to leave the granting of Christmas bonuses within Respondent's discretion. The first question to be decided is whether the bonus provision of the contract as finally agreed upon and set forth above is clear and unambiguous, precluding to resort to any extrinsic evidence to determine the intent of the parties. Respondent stresses the words "discretionary" and "gratuitous" and argues that these modifiers make it clear that the parties intended that Respondent's policy as to Christmas bonuses was to be left entirely within its discretion and that the parties regarded the bonuses as gratuities rather than wages or conditions of employ- ment. The General Counsel on the other hand stresses the words "shall continue," arguing that whatever the modifiers used in describing the policy and bonuses, the agreement incorporates the past policy of Respondent and that the intent of the parties cannot be determined without reference to that policy and the indications of intent which appear from the negotiations. While at first blush the modifiers relied upon by Re- spondent appear to give it the better case, I am con- strained to agree with the General Counsel's argument. Respondent suggests that the intent to give Respondent complete freedom with respect to payment of the bo- nuses could not have been more explicitly stated, but that is not the case. The intent to give Respondent com- plete discretion could have been unambiguously stated merely by eliminating any reference to past policy and providing that "The Company may in its discretion grant gratuitous Christmas Bonuses." The provision as drafted pulls in two directions. The verb phrase "shall continue" contains a mandate to do as in the past. The modifiers of policy and bonuses indicate the opposite. The provision is thus ambiguous, and resort to extrinsic evidence is re- quired. The evidence as to past Christmas bonus policy shows that despite past descriptions of the bonuses in Respond- ent's handbook and manual, which state that the bonuses were discretionary and decided on a year-to-year basis, Respondent's practice had become regularized. Indeed, in the 1977 manual an ambiguity comparable to that in the agreement was incorporated. While the handbook characterized the bonuses as discretionary, it also used words of entitlement in describing what employees would receive. From Respondent's consistent practice and the statement of the formula for computing Christ- mas bonuses in the 1977 manual, I find that Respondent had established as wages or conditions of employment the regular payment of Christmas bonuses with a fixed method of computation tied to employees' hourly rates of pay before the 1977 negotiations began. 5 The evidence as to the negotiations shows that when Respondent finally acquiesced to the Union's modified demand, it abandoned the position that it wanted to dis- continue the Christmas bonuses and informed the Union I See Nello Pisroresi & Sons Inc. (S d D Trucking Co.), 203 NLRB 905 (1973); Radio Television Technical School, Inc. /a Ryder Technical Insti- tute, 199 NLRB 570 (1972), enfd. 488 F.2d 457 (3d Cir. 1973). 306 MEMPHIS FURNITURE MANUFACTURING CO. that it would continue its present policy with respect to Christmas bonuses. As Yeiser's statement of position sub- mitted to the Board indicates, this proposal which became the basis of agreement was in response to the Union's proposal which he understood was for continu- ation of the same Christmas bonuses as in the past. In stating Respondent's position, as his bargaining notes and the testimony shows, Yeiser gave no indication that Re- spondent was offering a counterproposal on bonuses dif- ferent from the Union's last proposal. In light of this evi- dence as well as the history of Respondent's regular bonus payments before and after the negotiations began, I find that on February 24 Respondent orally agreed to continue to pay the Christmas bonuses for the life of the contract with the same formula for computing them as in the past. When Rudd, Parker, Yeiser, and Osborne met on March 2 or 3 to put the agreement reached in writing, Respondent's initial proposal for contract language re- flected a different agreement, which made it explicit that Respondent had no obligation to grant any bonus and that if it granted a bonus it had no obligation to pay any specific amount. That language was rejected by Rudd, and the ambiguous substitute was proffered by Respond- ent in its place. When Rudd questioned Respondent's intent, Yeiser reassured him that Respondent intended to pay the bonuses and urged Rudd to demonstrate trust. The language to which Rudd agreed, to be sure, raised questions as to Respondent's intent, but Rudd received reassuring answers to those questions, and the language was similar to that used by Respondent in its handbook and manual under which it' had consistently paid Christ- mas bonuses for 15 years. I find that in accepting the proffered language, the Union did not agree to modify the agreement previously reached but agreed to the lan- guage as embodying the agreement previously reached relying on Respondent's assurances and asserted sensitiv- ity about the Christmas bonus language. Accordingly, I find that the ambiguity in the Christ- mas bonus provision is to be resolved in favor of the construction urged by the General Counsel that Re- spondent agreed to continue for the life of the agreement payment of Christmas bonuses computed in the same manner as in the past. In these circumstances, I find further that when Re- spondent paid Christmas bonuses in 1978 amounting to half of what it paid in prior years, it unilaterally modified the agreement without consent of the Union and thereby acted in derogation of its bargaining obligation under Section 8(d) of the Act and violated Section 8(a)(5) and (I) of the Act. 6 IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. s Rego Park Nursing Home, 230 NLRB 725 (1977); Nassau County Health Facilities Association. Inc. at al., 227 NLRB 1680 (1977). In view of these findings I find it unnecessary to consider the General Counsel's alternative contentions or Respondent's waiver defense based on art. I of the collective-bargaining agreement. Having found that Respondent unlawfully failed and refused to pay Christmas bonuses to employees as re- quired by the collective-bargaining agreement the in effect, I shall reccomend that it be ordered to honor and give retroactive effect to the terms and conditions of the collective-bargaining agreement relating to Christmas bo- nuses and make its employees whole for losses suffered by reason of its failure to honor and apply the provisions of the agreement since December 1978, with interest to be computed in the manner set forth as prescribed in Florida Steel Company, 231 NLRB 651 (1977). 7 CONCLUSIONS OF LAW I. Memphis Furniture Manufacturing Co. is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All production and maintenance employees, includ- ing local and over-the-road truckdrivers of Memphis Furniture Manufacturing Co., including warehouse em- ployees but excluding all office clerical and professional employees, salesmen, watchmen, guards and supervisors as defined in the Act consitute a unit appropriate for pur- poses of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. The Union is and at all times since May 20, 1977, has been the exclusive representative for the purposes of collective bargaining of the employees in the appropriate unit described above within the meaning of Section 9(a) of the Act. 5. By refusing to honor and by repudiating the Christ- mas bonuses due employees in the unit set forth above in December 1978 under its collective-bargaining contract with the Union, Respondent has unilaterally and without consent of the Union, modified the contract in mid-term, in derogation of Respondent's bargaining obligation under Section 8(d) of the Act, thereby engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following reccomended: ORDER 8 The Respondent, Memphis Furniture Manufacturing Co., Memphis, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unilaterally and without consent of the Union, fail- ing and refusing to pay Christmas bonuses due employ- ees under any collective-bargaining contract between Re- See also Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 8 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 10248 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 307 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent and the Union or otherwise unilaterally modi- fying the provisions of any such contract during its term. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Honor and give retroactive effect from December 1978 to the terms and conditions of its March 12, 1978, collective-bargaining contract with the Union relating to Christmas bonuses and make its employees whole for the losses incurred by them as a result of Respondent's fail- ure to honor and apply the provisions of the contract in the manner set forth in the section of this Decision enti- tled "The Remedy." (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to ascertain the backpay and other re- dress due under the terms of this Order. (c) Post at its Memphis, Tennessee, place of business, copies of the attached notice marked "Appendix." 9 9 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by an au- thorized representative of the respective Respondent, shall be posted by Respondent immediately 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. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 308