Crane Co.

National Labor Relations Board - Board Decisions

Jun 19, 1967

165 N.L.R.B. 570 (N.L.R.B. 1967)

570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crane Company' and International Union of
District 50, United Mine Workers of
America. Case 16-CA-2703.
June 19,1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On December 22, 1966, Trial Examiner Ivar H.
Peterson issued his Decision in the above-entitled
proceeding, recommending dismissal of the
complaint filed herein and as amended at the
hearing, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel filed
exceptions to the Trial Examiner's Decision with a
supporting brief. Respondent filed a brief in support
of the Trial Examiner's Decision and an answering
brief to the brief of the General Counsel in support of
his exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case 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 of the General
Counsel and his supporting brief, and the brief and
answering brief of the Respondent, and the entire
record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the complaint herein, as
amended, be dismissed in its entirety.
i The name of the Respondent appears as amended at the
hearing
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IVAR H . PETERSON , Trial Examiner : On July 29 , 1966,'
the General Counsel of the National Labor Relations
Board , by the Regional Director for Region 16, upon
charges filed June 8 by International Union of District 50,
Unless otherwise indicated , all dates refer to the year 1966.
2 On August 11, the Regional Director consolidatea the instant
proceeding with Case 16-CB-293, in which complaint issued on
July 29, based upon charges and amended charges filed by the
Company on May 23 and July 28, against the Union and its local,
Local 15526 , alleging violations of Section 8(b)(1)(A ) by reason
of mass picketing of the Company' s premises and threats of
physical violence and bodily harm against employees of the
Company At the outset of the hearing the Union and counsel
for the General Counsel reached a proposed settlement of Case
16-CB-293, in which the Company , as the Charging Party
United Mine Workers of America, herein called the Union,
issued a complaint against The Crane Company, herein
called the Respondent or the Company . The complaint
alleged that the Respondent had violated Section 8(axl)
and (5 ) of the Act by negotiating in bad faith with the
Union, by threatening to close down all or portions of its
production facilities unless the Union accepted the
Company's contract terms, and by refusing to bargain with
respect to the discontinuance of substantial portions of
production at its Miami , Oklahoma, plant ; and that these
unfair labor practices caused a strike of its employees
which began on April 6. The complaint was amended
during the hearing to include allegations that , beginning
about April 16, the Respondent, in violation of Section
8(a)(3) and (5), removed from the Miami plant and
transported to other plants , tools, dies, equipment, and
machinery necessary to production , and refused to
reinstate its striking employees who on September 1 made
unconditional application to return to work. In its answer,
as amended , the Respondent denied the commission of
any unfair labor practices.
Pursuant to notice , a hearing was held before me in
Miami, Oklahoma, on September 8, 9, 12, and 13. All
parties were represented by counsel and were afforded full
opportunity to participate in the hearing.- Ruling was
reserved on the Respondent ' s motion , made at the close of
the hearing , to dismiss the complaint ; it is disposed of in
accordance with the findings hereinafter made. Briefs
filed by the General Counsel and by the Respondent have
been duly considered.
Upon the basis of the entire record in the case and from
my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , an Illinois corporation , maintains a
plant at Miami , Oklahoma, with which this proceeding is
concerned , where it manufactures warm -air furnaces, air-
conditioning equipment, and related products . During the
year preceding issuance of the complaint , the Respondent
purchased materials valued in excess of $500,000 , of which
materials valued in excess of $50,000 were transported to
the Miami plant directly from States of the United States
other than the State of Oklahoma. The Respondent
admits, and I find , that it is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and Sequence of Events
The Respondent operates a total of 23 plants in various
parts of the United States, at which it manufactures a
therein , did not join . After hearing argument on the Company's
objection to the settlement and being satisfied that the proposed
settlement , which provided for the entry of a Board order and a
consent decree, fully remedied the allegations contained in the
complaint against the Union, I granted the General Counsel's
motion to sever the cases and continued Case 16-CB-293
indefinitely . Thereafter , the Board on October 13 entered its
Decision and Order in Case 16-CB-293, as provided by the
settlement stipulation , and on October 31 the United States
Court of Appeals for the Tenth Circuit entered its decree enforc-
ing the Board 's Order
165 NLRB No. 71'
CRANE COMPANY
variety of products. The Miami, Oklahoma, plant, with
which this proceeding is concerned, is engaged principally
in manufacturing warm-air gas furnaces, air-conditioning
equipment, and a line of "chef units" which consists of a
combination refrigerator, stove, sink, and cabinet
arrangement. The Miami plant is the only one producing
air-conditioning equipment and chef units; a plant in
Garwood, New Jersey, sometimes referred to as the
Thatcher plant, also produces warm-air furnaces similar to
those manufactured at the Miami plant, although the
principal product of the Garwood facility is oil-fired
furnaces. Later in October 1965, the Company's executive
officers approved the expenditure of some $192,000 in
tools and equipment for the manufacture at the Miami
plant of a new design of warm-air furnaces to replace the
line then being produced. In mid-January purchase orders
for dies for the new furnace line were issued, and in
February prototype models were being tested, as-required,
by the American Gas Association. The new dies were
expected to arrive during the period of May through June,
and the target date for beginning production was
estimated as July 1. Since the Miami plant would be the
primary producer of the new furnace line, the plans called
for it to phase out of production of the old style furnace
prior to beginning production on the new line, while the
Garwood plant would complete production of the old line,
utilizing for this purpose certain dies to be transferred
from the Miami plant.
A 2-year collective-bargaining agreement between the
Company and United Steelworkers of America, covering
the production and maintenance employees at the Miami
plant, expired as of December 31, 1965. Thereafter a
representation election was held, on petition of the
Teamsters Union, in which the Mine Workers intervened.
The Mine Workers was successful in a runoff election,
defeating the Teamsters, and on February 14 was certified
as the exclusive representative of the Miami production
and maintenance employees.; On February 24 the Union
and the Company first met for the purpose of negotiating a
bargaining agreement. Thereafter, the parties met on 10
occasions during the month of March. By March 26, the
11th meeting, they had reached tentative agreement on
some 108 separate sections of a proposed contract,
virtually all of them of a noneconomic nature. Up to this
point in the negotiations , the parties had not discussed any
specific demands for wage increases, as the Union had
made none, nor other items included in the Union's
proposals (such as pensions, life insurance and
hospitalization, shift differentials, or paid vacations)
involving direct and significant increases in costs. From
the outset of negotiations, however, Robert S. Hall,
director of personnel and industrial relations and the
Company's chief negotiator, had asserted that the Miami
plant was in "serious financial difficulty," which he
subsequently elaborated by pointing out that in 1965 the
plant had sustained a loss in excess of $950,000, that
productivity was low, and that sales during the first 2
months of 1966 were off 20 percent from the same period
in the preceding year.
At the request of the Union, a Federal mediator
attended the meeting on April 5, the 13th bargaining
9 The Respondent admits, and I find, that the following unit, in
which the election was held, is appropriate within the meaning of
Section 9(b) of the Act All production and maintenance
employees , including quality control technicians, production
clerk, plant truckdrivers , and janitors, employed at the Miami
571
session. According to the minutes kept by the Respondent,
and not disputed by the Union, the parties listed for the
benefit of the mediator some 11 items still under
discussion and explained "that monetary issues had not
been discussed because of the failure of the parties to
resolve their non-economic differences." The minutes for
the April 5 meeting further disclose that the Union took
the position that unless there was an increase in wages
during the first year of the contract the Union would strike.
The Company stated that because of the critical financial
problems at the Miami plant no increase could be granted
in the first year of the contract but indicated it "would
consider an increase in the second and third years of a 3-
year agreement." There is disputed testimony, discussed
in more detail below, that at this meeting Hall, on behalf of
the Company, stated that unless the terms offered by the
Company were accepted the plant would be closed or
moved. On the morning of April 6, about an hour after
work began, the Union called a strike and, so far as
appears, all of the approximately 150 bargaining unit
employees walked out of the plant.
The strike, which was still unresolved at the time of the
hearing, was attended by some mass picketing and alleged
violence. On May 20 the United States District Court for
the Northern District of Oklahoma, on complaint of the
Company, entered a temporary restraining order against
the Union and certain named individuals, and on May 24
issued a temporary injunction applicable against the Union
as well as the Company which was thereafter continued in
force by order entered on August 9 until further order of
the court.
In May and June the parties met on several occasions,
with the Federal mediator present, in an effort to resolve
their differences. The May 10 and 11 meetings were
concerned principally with the discussion of a list of
alleged instances of mismanagement which the Union
asserted had contributed to the poor economic condition of
the Miami plant. The meeting on May 11 terminated at
noon, with H. W. Moore, regional director of the Union
who particpated in many of the bargaining sessions,
stating that there was no point in meeting in the afternoon
if the Company made no money offer. The parties left it to
the mediator to convene any further meetings. Thereafter,
the parties did not meet until June 2 and on June 10, 11,
and 13. In the meantime, beginning about May 16, the
Company transferred certain dies used in the manufacture
of the parts for the furnace line being phased out, as well
as furnace parts, from the Miami plant to the plant in
Garwood, New Jersey. As dies for the new furnace line
became available from tool and die manufacturers, these
were diverted to other plants for initial tryout.
When the parties met on June 2, Company Negotiator
Hall informed the Union of the removal of dies and parts to
Garwood and the diversion of new dies, stating that the
latter action had been taken because the Company had
been unable to bring them into the plant and ready them
for production. Hall also informed the Union that the
Company was operating the chef unit line with
approximately 50 supervisory and clerical employees. The
furnace line and the air-conditioning line were not then in
operation. There is conflicting testimony whether Hall
plant, excluding over-the-road drivers, office clerical employees,
tool, fixture , and plant layout man, lab technicians , part-time
janitor and first-aid attendant , guards, watchmen , and supervisors
as defined in the Act
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that the air-conditioning line would be moved from
the Miami plant to some other facility, with the result that
only the chef line, employing some 50 or 60 employees,
would remain at the Miami plant. It is not disputed that
Hall did inform the Union that the Company intended to
send a letter to all employees on strike announcing plans
to reopen the plant and requesting employees to return to
work. Such a letter, dated June 8, was sent, stating that
the Company intended to resume operations on June 13
and that employees were expected to report for work at
that time. The letter further advised that while no
employee was "under any compulsion to return to work"
the Company intended to "take full advantage" of its
rights under State and Federal law "to restore normal
operation of the plant." The strikers, however, did not
return to work and it was not until sometime in August that
the Company began hiring replacements. Near the close of
the June 2 meeting, the Union made the following proposal
for settlement of the strike, as testified to by Hall and as
set forth in the Company's minutes of the meeting:
FIRST YEAR
1. Labor-management meetings monthly, to
include Moore and Hall
2. Insurance coverage identical to office
employees, including dependent coverage
3. 15-cent general increase
4. Improvements in the pension plan so as to be
comparable to the salaried plan
SECOND YEAR
1. One additional paid holiday
2. 20-cent general increase
THIRD YEAR
A reopening on wages only.
The Company's counterproposal to this was to agree to
monthly labor-management meetings and to offer a 5-cent
increase in the second and third year of the agreement.
On June 10 the parties met again , with Vernon Ford, a
personal representative of the president of District 50,
present. Although the parties reached agreement on
several noneconomic items, there was no change in
position on the basic economic differences. A brief
meeting was held on June 11, with no change of position;
the Union advised that the Company's position would be
reported to a membership meeting on June 12, but that
there appeared to be little possibility of resolving the
differences.
During the evening of June 11, at the suggestion of
Union Regional Director Moore, Hall had a dinner meeting
with Moore and Ford. Only Hall testified about this
meeting.4 According to Hall's credited and undenied
testimony, he showed Moore and Ford financial and sales
information substantiating the statements he had made in
earlier meetings regarding losses at the Miami plant
during the prior year and declining sales. Although no
question was raised by the Union's representatives as to
the correctness of the data exhibited by Hall, they held to
the view that a wage increase during the first year was
At the time of the hearing Moore was hospitalized. Ford,
however, was present at the hearing
essential. Moore expressed the view that the membership
might accept an hourly increase of 10 cents during the first
year and thus resolve the strike. On June 12, Hall obtained
authority from higher management to improve the
Company's monetary offer, and Hall so informed Moore.
The parties met on June 13, and the Company then
proposed that it would pay for the full cost of hospital and
surgical coverage for dependents and increase the shift
differential from 5 and 7 cents to 7 and 9 cents for the
second and third shifts; during the second and third years
of the contract, in addition to the 5-cent increase
previously offered, it proposed that the agreement could
be reopened for negotiation of wage rates and certain
(unidentified) fringes if the plant showed a net profit of 8
percent of net sales before taxes for a 12-month period to
be agreed upon. This proposal was thereafter rejected by
the Union. No further meetings were held until
September 6 and 8, shortly before the hearing began.
During August the Company began hiring permanent
replacements for the strikers. As of September 6, it had
hired 170 or 180 new employees and had 19 openings that
had not been permanently filled. On August 22, Moore
sent a telegram to Hall requesting that all strikers "be
provided a job in the Miami plant immediately as they
have agreed to return to work without a contract hoping
productive negotiations can be resumed at once." Hall
replied by wire on August 23, stating that the Company
was "available now as we have always been for good faith
collective bargaining" and added that the Company
wished "to know on what conditions you propose the
return of employees and other details which of necessity
would be discussed in connection with the strike
settlement agreement if your telegram is an indication that
the strike is to end." Moore's reply of the same date asked
whether the Company would "give all striking employees a
job" at the Miami plant and stated that the Union
"requests that all employees who went on strike . . . be
given a job ... immediately" and expressed willingness
"to meet to discuss orderly return to work and negotiate in
good faith for a collective bargaining agreement." On
August 29 the Union sent the following telegram to Hall:
THE UNION HEREBY UNCONDITIONALLY OFFERS TO
RETURN TO WORK ALL OF THE STRIKING EMPLOYEES
TO A JOB AS OF SEPTEMBER ONE 1966 AND WILL HAVE
THEM REPORT FOR WORK , STARTING TIME 7 O'CLOCK
A. M. SEPTEMBER ONE 1966.
Hall answered on August 31, stating that it was necessary
for the parties "to meet first to consider orderly return of
those for whom jobs are available," and suggested a
meeting on September 6. The Union replied on the same
day, continuing its "unconditional offer to return the
employees to a job as of September 1" and agreeing to
meet on September 6.
In substantial part the discussion at the meetings on
September 6 and 8 was concerned with the number of jobs
available for strikers, when strikers would be recalled, and
whether replacement workers would be released to make
room for strikers willing to return. The Union took the
position that every striker was entitled to be returned to a
job. The Company, however, stated there were then only
19 vacancies available and offered to take back, with
seniority unimpaired, the most senior qualified strikers in
these classifications to fill the 19 vacancies. It took the
position that it would not displace the replacement
workers to make room for strikers, but suggested that
those strikers for whom jobs were not immediately
CRANE COMPANY
available be placed on a preferential list from which future
vacancies would be filled; those on the list recalled by
January 1, 1967, would retain their seniority, while those
subsequently employed would come back as new
employees. The Union rejected this proposal, arguing for
the return of all strikers within a shorter space of time. No
agreement was reached on terminating the strike. Of the
19 strikers offered jobs on September 6, 9 responded and
were employed; as of September 12, when Hall testified,
the Company was in the process of filling the remaining 10
vacancies from among strikers interested in returning to
work. In addition to the 9 strikers returned to jobs, a total
of 48 other strikers indicated on September 7 and 8 that
they were interested in returning; the Company informed
these strikers as well as the Union that, as vacancies
developed up to January 1, 1967, strikers would be
recalled with full seniority.
B. The Issues
The complaint, as amended, alleges that the
Respondent Company from the outset of negotiations
bargained "in bad faith and with no intention of entering
into any final or binding collective bargaining agreement,"
and more particularly stated on April 5 that it would "close
down all or portions of its production" at the Miami plant
unless the Union accepted its contract terms. It is further
alleged that the Respondent unlawfully refused to bargain
on and after April 5 about "discontinuing substantial
portions of production" at the Miami plant and thereafter,
"pursuant to threats made in the bargaining sessions on
and before April 5," removed production equipment and
machinery to other plants. The General Counsel asserts
that the strike which commenced on April 6 was caused
and prolonged by the foregoing unfair labor practices.
Finally, it is contended that the Respondent
discriminatorily refused to reinstate its striking employees
pursuant to their unconditional offer to return to work
made about September 1.
C. Discussion and Conclusions
As has been indicated above, there is conflicting
testimony regarding what was said by the Company's chief
negotiator, Hall, in negotiation meetings prior to the strike
on the subject of closing or moving the plant and in the
meeting on June 2 about future plans for operating the
Miami plant. Resolution of these conflicts is essential not
only to ascertaining whether the Company in fact
threatened to close or move part of the plant unless the
Union accepted its terms for a contract and whether the
Company defaulted on its bargaining obligation by such
conduct and by the subsequent removal of old furnace line
dies and parts from the Miami plant and the diversion of
dies for the new furnace line to other plants, but also in
determining whether the strike was caused or prolonged
by unfair labor practices.
Glenn Obermeier, the Union's International
representative who participated actively in the
negotiations, first testified that at the April 5 meeting Hall
stated that the president and vice president of the
Company "said that there would not be any increases in
costs of the Miami plant at this time or at any future date,"
and that Hall further remarked that the Company was "in
s The mintues were received in evidence without objection,
after having been made available to counsel for the General
Counsel for examination and study.
573
the process of closing out other plants within their system
and this would possibly happen here or they would move,
might possibly make a warehouse out of this plant." Later
in his testimony, when asked by counsel for the General
Counsel to state again "what was said between the
Company and the union on April 5th," Obermeier
testified: "Mr. Hall made the statement that the president
and vice president of the company had instructed him to
tell us that there would be no increase in monetary costs to
the Miami plant at this time or in the foreseeable future,"
and also that Hall referred to "the possibility that this
plant might shut down" and told of another plant being
shut down and said that "this would probably be the same
thing that would happen at the Miami plant." With respect
to the June 2 meeting, Obermeier testified that Hall told
the union negotiators of the removal of dies and parts for
the old furnace line, which had been accomplished about
May 16, and added that Hall stated "that they were going
to close the air conditioning line down and they didn't
know where they was going to move it," and that "there
would be approximately 60 jobs in the plant, if we would
reach an agreement at this point," which would mean that
about 90 aeople would be without a job.
Charles Pace, a member of the Union's negotiating
committee, testified that the subject of closing or moving
the plant "was mentioned quite frequently" by Hall "if we
didn't get [agree] to accept their terms." According to
him, Hall stated at the April 5 meeting that the Company
"wasn't going to give any raise of any kind for the first
year" and "if we did not accept this, or their proposal, then
this plant would move out." Pace further testified that at
the June 2 meeting Hall "told us that they would, or had
already took the furnace line out of this plant and was
sending it to Garwood, New Jersey" and that the air-
conditioning line "would also leave this Miami plant, but
he didn't know exactly where it would go as of now, and
the only line that they would keep in the Miami plant
would be the chef line, and it would employ about 50 to 60
employees." D. C. Turrentme, another member of the
Union's committee, testified that "at most every meeting
we had" "there was something said about closing the
plant," but that the representatives of the Union "never
really took them seriously" until the March 26 meeting,
when Hall, during "a hot argument" with Pace and
another member of the Union's committee about job
evaluations and classifications, said that if the Union's
spokesmen "keep sticking to your guns you are going to
force us to move this plant." Turrentine corroborated the
testimony of Pace and Obermerier that at the June 2
meeting Hall said the Company intended moving the air-
conditioning line, but did not then know where it would be
transferred, with the result that only the chef line would
remain in Miami, employing 50 to 60 people.
Hall testified at considerable length about the
negotiating meetings and the positions of the parties on the
various subjects discussed, frequently referring to
contemporaneously prepared minutes made under his
direction shortly after each meeting.5 According to Hall,
the Company's representatives from the outset of
negotiations made clear to the Union's representatives
that the Miami plant "was in serious financial difficulty."s
At the March 14 meeting, during a discussion of a
proposed contract provision on production standards, Hall
pointed out that productivity at the plant was "extremely
" Obermeier testified to the same effect, stating that from the
beginning of contract talks the Company had indicated "they
weren't too happy" with the situation existing at the Miami plant
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
low," and that during the preceding year the plant had lost
in excess of $950,000. Approximately 2 weeks before the
April 6 strike, Hall had dinner with Union Regional
Director Moore and told Moore "of the financial problem
which we had at the plant"; however, Moore took the
position that since the Union had defeated two other
unions in the recent election it was "absolutely essential"
that there be an increase during the first year of the
contract. Hall's testimony is that at the April 5 meeting he
again pointed to the loss at the plant during 1965 and the
drop in sales, as well as to the Company's investment of
some $650,000 in new dies and equipment for new
products, and said that the Company was unable to grant
any increases during the first year of the contract but was
willing to consider increases during the second and third
years of a 3-year agreement. He testified he told the
Union's negotiators that the Company's "problem was one
of getting this plant back on the track, because of the
substantial losses and the serious production problems we
had." He also testified that he referred to a plant that was
being closed as the only plant in the Company that was in
more critical condition than the Miami plant. He denied
saying that the Miami plant would be closed or moved. He
did testify that the subject of closing or moving was
mentioned but in the context of "explaining the economics
of this particular operation, where if you cannot make
money, the company would be forced to close it"; he
added, however, that such references were not made "in
the sense that you accept our offer or we are going to close
it."
At the June 2 meeting, the first following the removal of
parts and dies for the old furnace line, Hall informed the
union committee of this removal and also stated that
production was limited to chef units with about 52
supervisory and office personnel engaged in that activity.
Hall testified he informed the Union that the Company was
not then producing any air-conditioning units and said that
the Company "didn't know where we would put any air
conditioning" because the Company had no other facilities
engaged in producing that line of products. He also
testified that he said that the removal of furnace parts and
dies would have no substantial impact on employment in
the bargaining unit. Hall denied that he ever stated that
the Company planned to or would remove the air-
conditioning line, although he did testify that the Union
was told "that if anything were to be done as far as air
conditioning, we would have to look around for available
plants that could do it." Hall testified that, in announcing
at the June 2 meeting that the Company intended to notify
employees that the plant would be reopened, nothing was
stated to the effect that only 50 or 60 employees would
have jobs.
Upon a consideration of the foregoing testimony and the
demeanor of the witnesses while testifying, as well as the
course of negotiations before and after the strike, I am not
persuaded that Hall, prior to the strike and particularly on
April 5, threatened to close down or move the Miami plant
unless the Union accepted the Company's proposal which
involved no monetary increases during the first year of a 3-
year agreement. I have no doubt, and I find, that Hall
endeavored to justify the Respondent's position of no
increase during the first year by pointing to the past
unsatisfactory performance of the Miami plant, as
revealed by the loss of some $950,000 in 1965, together
with low productivity and declining sales, undoubtedly
stated in effect that, if this trend were not reversed, the
plain economics of the matter might well result in the
closing of the Miami plant. That Hall's references to the
possible closing of the Miami plant were not threats
intended to make the Union capitulate to the Company's
terms but only statements of the likely consequence if the
plant continued to be unprofitable, is apparent from the
testimony of Obermeier. Thus Obermeier testified that
Hall said there was a "possibility" that the plant might
shut down and, when relating that another plant in more
critical circumstances than the Miami plant was being
closed, said that the same "would possibly happen here."
Obermeier did not testify that Hall said the Company
would close or move out if the Union did not accept the
Company's terms. To the extent that the testimony of Pace
and Turrentine ascribes such an ultimatum to Hall, I do
not credit it. I find that Hall, at the negotiation session of
April 5 and theretofore, sought in good faith to convince
the Union that the economic condition of the Miami plant
did not justify granting an increase during the first year of
the contract and argued that unless productivity and sales
increased and the trend of losses as shown by the results
of operations of 1965 were reversed, the economic
consequence might well be that the plant would have to be
closed or its operations moved elsewhere. I also find, in
agreement with Hall's testimony, that at the June 2
meeting he did not state that the air-conditioning line
would be moved and future operations at the Miami plant
limited to the chef line which would employ only 50 or 60
employees, but that he stated that at that time only the
chef line was in operation utilizing some 52 supervisory
and clerical employees and that if production of air-
conditioning units were to be resumed while the strike was
in progress the Company would "have to look around for
available plants that could do it."
When the strike occurred on April 6, the parties had
met in a total of 13 meetings and had reached agreement
on over 100 separate sections of a collective-bargaining
contract. The primary issues separating the parties at the
conclusion of the April 5 meeting were demands by the
Union for increased benefits involving added costs, on
which the Respondent took the position that the economic
condition of the Miami plant made such unfeasible. More
particularly, the Union insisted that an increase was
essential during the first year of the contract, and its
spokesman said if one were not granted there would be a
strike. As found above, the Respondent did not at that
meeting threaten to close or move the plant unless the
Union accepted its terms. I find that the Respondent's
position on increases during the first year of the agreement
was advanced in good faith, and not for purposes of
avoiding agreement, and that the strike which began on
April 6 was not caused by any unfair labor practices of the
Respondent but was economic in nature . The contention is
made, however, that the strike was converted into an
unfair labor practice strike by reason of the Respondent's
action, while the strike was in progress, in removing from
the Miami plant parts and dies for the old furnace line and
in diverting from that plant the dies for the new furnace
line, without advance notice to and bargaining with the
Union on these matters.
As found above, long before the strike the Company had
embarked on a program of changing the style of furnaces
manufactured at the Miami plant, and to that end had
ordered new dies which were to be delivered in the period
beginning about the middle of May and extending into
June. The plans further called for the phasing out of the
CRANE COMPANY
old line of furnaces at the Garwood, New Jersey, plant,
necessitating. the transfer to that plant of the old furnace
parts and dies prior to the estimated target date of July 1
when the production of the new line of furnaces at the
Miami plant was to begin. In accordance with this
program, the Respondent on May 16 and shortly thereafter
removed the old furnace line parts and dies from the
Miami plant and sent them to the Garwood plant. About
the same time, and in any case by June 2, new dies were
diverted to the Garwood plant for testing and tryout. At the
time of the hearing, the role of the Miami plant in the
production of the new line of furnaces had changed to the
extent that parts therefor were to be manufactured at the
Garwood plant and shipped to the Miami plant for
finishing and assembly. According to William Haag, the
Company's manufacturing manager for heating and air-
conditioning, parts for the new furnace line would not be
manufactured at the Miami plant until sometime in the
future, if sales volume held up to projections, so that the
installation of a duplicate set of dies at the Miami plant
would be warranted.
It is not disputed that the Company did not give advance
notice to the Union or offer to bargain about the removal of
parts and dies for the old furnace line or even the diversion
of dies for the new furnace line., It is equally clear that
when Hall informed the Union at the June 2 meeting of
these events, the Union made no request for bargaining or
consideration of alternatives. Nor did the Union, in
subsequent meetings, make any demands that the
production equipment moved or diverted to the Garwood
plant be returned to the Miami plant.
The removal of the old furnace dies was effected
pursuant to a decision made long before the strike and was
an integral part of the Respondent's previously scheduled
changeover of furnace production. In and of itself, this
action had no impact on unit jobs. I find that the removal
was incident to the Respondent's right to continue and
maintain operations during the strike and, therefore, that
the failure of the Respondent to offer to bargain with the
Union about this matter was not violative of Section 8(a)(5)
of the Act.7 A more difficult question, however, is
presented by the diversion of the new dies and the related
decision to retain these dies at the Garwood plant and to
shift the manufacture of new furnace parts from the Miami
plant to the Garwood plant, thus limiting the participation
of the Miami plant in new furnace manufacture to finishing
and assembly operations. As appears from Haag's
testimony, this was a change of a permanent nature, not
limited to the duration of the strike, since plans to install
duplicate dies at the Miami plant were dependent upon
future sales volume. Under the Board's Fibreboard
doctrine," such a change in business operations, if
resulting in significant deteriment to the employees in the
bargaining unit , would require affording the representative
of the employees in the affected unit an opportunity to
bargain about the change before making it. The record
here, however, fails to show such a detriment. At the time
of the strike there were about 154 employees in the
bargaining unit . After the Respondent began hiring
replacements in August, and by the end of that month,
there were 170 or 180 employees in the unit . While the
elimination of the manufacture of furnace parts at the
'Shell Oil Co, 149 NLRB 283; Shell Chemical Co., A Division
of Shell Oil Co., 149 NLRB 298; Empire Terminal Warehouse Co ,
151 NLRB 1359.
575
Miami plant necessarily resulted in the elimination of the
jobs directly connected with that activity, the total work
force in the unit was larger at the time of the hearing in
September than when the strike began in April. The
factors accounting for this increase in the number of unit
employees are not disclosed by the record, nor is there any
evidence showing whether and to what extent particular
job classifications within the Miami unit were adversely
affected by the change in the role of the Miami plant in the
production of the new furnace line. Since the operating
changes here in question have not been shown to have
caused a significant detriment to the employees in the
bargaining unit , and were made for economic reasons in
order to maintain operations during the strike, I conclude
and find that the Respondent, by failing to give notification
to and bargain with the Union about these changes, did not
violate Section 8(a)(5) of the Act.°
Having found that the strike was not caused by unfair
labor practices of the Respondent, and that the
Respondent did not violate the Act by making the
operational changes here in question during the strike, it
follows that the Respondent was free, under settled
principles, to hire permanent replacements for the
strikers. This it did, beginning sometime in August. When
the parties met on September 6 to consider termination of
the strike and the Union's application that all the strikers
be returned to their jobs, the Company had only 19 job
vacancies. These vacancies were offered to strikers on a
seniority basis, and the Company further offered to place
remaining strikers on a preferential list from which future
vacancies would be filled, and that such strikers as were
recalled by January 1, 1967, would retain their prestrike
seniority. The Company, however, refused to displace the
replacement workers in order to make jobs available for
strikers, and the Union refused to accept the Company's
proposal of a preferential list for strikers for whom jobs
were not immediately available. Since the strike was not
caused or prolonged by unfair labor practices, I find that
the Company's offer to reinstate immediately only
sufficient strikers to fill existing vacancies, placing
remaining strikers on a preferential list for future
employment, was not a discriminatory refusal to reinstate
violative of Section 8(a)(3). Being guilty of no unfair labor
practice in connection with the strike, the Company was
not required to discharge permanent replacements to
create openings for strikers; the solution the Company
offered, I find, was nondiscriminatory.
Since I have found that the Respondent has not engaged
in any of the unfair labor practices alleged in the
complaint, as amended, it will be recommended that the
complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. At all times material , the Union has been and now is
the exclusive representative for the purposes of collective
bargaining of all employees in the following appropriate
unit , within the meaning of Section 9(a) and (b) of the Act:
e Fibreboard Paper Products Corporation, 138 NLRB 550, affil.
379 U.S. 203.
'American Ott Company, 151 NLRB 421; American Oil
Company, 155 NLRB 639.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees , including
quality control technicians , production clerk, plant
truck drivers , and janitors , employed at the Miami,
Oklahoma , plant of the Respondent , excluding over-
the-road drivers , office clerical employees, tool,
fixture, and plant layout man, lab technicians, part-
time janitor and first -aid attendant , guards,
watchmen , and supervisors as defined in the Act.
4. Respondent has not engaged in unfair labor practices
within the meaning of Section 8(a)(5), (3), or (1) of the Act,
by the conduct alleged in the complaint, as amended.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case it is
recommended that the complaint , as amended, be
dismissed in its entirety.