Memphis Furniture Mfg. Co.

National Labor Relations Board - Board Decisions

Sep 24, 1980

252 N.L.R.B. 303 (N.L.R.B. 1980)

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