Crane Co.

National Labor Relations Board - Board Decisions

Aug 10, 1979

244 N.L.R.B. 103 (N.L.R.B. 1979)

CRANE COMPANY
Crane Company, Deming Division and United Steel-
workers of America, AFL-CIO-CLC, Local Union
8353. Case 8-CA- I 1584
August 10. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JNKINS
AND PENELIO
On January 17, 1979, Administrative Law Judge
Walter H. Maloney, Jr., issued the attached Decision
in this proceeding. Thereafter. Respondent filed ex-
ceptions and a supporting brief. The General Counsel
filed limited exceptions and a supporting brief. Re-
spondent filed an answering brief to the General
Counsel's exceptions, and the Charging Party filed a
brief in opposition to Respondent's exceptions.
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 briefs
and has decided to affirm the rulings, findings.' and
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard DO' Wall Products. Inc.. 91 NLRB 544
{1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
The Administrative Law Judge inadvertently found that the Union won
an election conducted at the Salem office and technical unit "early in the fall
of 1975." The election was in fact conducted on May 16. 1974.
Finally. we agree with the Administrative Law Judge that Respondent
violated Sec. 8(a)(3) and () by withholding accrued vacation pay from the
strikers. The employees' benefits book states:
Effective January 1. 1972, when continuous full time employment at
Deming Division Crane Co. prior to January Ist of the vacation year
was at least Weeks Working Days
6 Months 1 5
9 Months 1-2/5 7
1 to 6 Years 2 10
7 to 15 Years 3 15
15 to 20 Years 4 20
20 Years and Over 5 25
The vacation year is the current year in which you are working. If an
employee terminates employment of his own free will before January
Ist. he will not be entitled to any vacation earned during the year. He
would be entitled to vacation earned in the last vacation year if not
already taken.
Note: To receive your vacation check prior to going on vacation a
supervisor must make the request in writing to the Controller's secre-
tary at least three weeks prior to the individual leaving for vacation.
It is thus clear that Respondent's employees did in fact accrue vacation
pay. By indicating that strikers would not be paid such accrued vacation
pay, Respondent's conduct was clearly calculated to force employees to
abandon the strike
conclusions of the Administrative Law Judge' and to
adopt his recommended Order.
Pursuant to Section 10(c) of the National l.abor
Relations Act. as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and herebk or-
ders that the Respondent, Crane Company. Deming
Division, Salem, Ohio. 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.
In adopting the Administrative Las. Judge's tinding that Respondent un-
lawfully denied strikers accrued vacation pay. Member Penello does nol rely
on B,,rden. Inc. Brden Chemnual Diiitn. 235 NLRB 982 ( 1978. entirce-
ment denied and remanded In pertinent part 600 F.2d 13 Il ( Or 19794. a
case wherein he dissented. In Member Penello's view. RBrdenr I cleary di,-
tinguishable n the ground that the employer in that case, unlike Rpespon-
dent here. estabhlished a business justific.ltion for its actlons
2 In his remedy the Administratie l.a, Judge proxided that hould Re-
spondent fail t reinstate the employees engaged In the unfair labor practie
strike within 5 days of their application lfor reinstatementl. backpas lir these
employees shall begin to accrue The Board has found thai he -day perti,
Is a reasonable accommodation between the interests o the empl-olees In
returning to work as quickly as possible and the emplover's need i, eectu-
ate that return in an orderly manner Drug PA age C.U/ola. It . 228
NLRB 108 (19771 AccordinglI, if Respondent herein has already rejected or
hereafter rejects, unduly delays, or ignores an) unconditiona; l offer ito return
1to work, ,r attaches unlawful conditions io its offer of reinstatement. the 5-
day period serves no useful purpose. and backpay will commence is otf he
unconditional offer to return to work Natioll Car Renil S.i,,',nm. In .
Rental Diision. 237 NLRB 172 (1978R: N'ewporut 'e-s ShJphulddng atnd Drn
DVA Corpanm. 236 NI.RB 1637 (1978) While Chairman Fanning and
Member Jenkins would not. In any event. automatically grant Ihis 5-day
grace period, they acknowledge that. until uch time ;as the majority lew
approving this practice changes, the) are nstitutionally bound hb this posi-
tion.
IWe have modified the Administrative Law Judge's notice to conform
with his recommended Order.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARI)
An Agency of the United States Government
WE WILL. NOT refuse to bargain collectively in
good faith with United Steelworkers of America,
AFL-CIO-CLC, Local 8353. as the certified col-
lective-bargaining representative of all of our of-
fice clerical and technical employees, including
draftsman, tool designers, process engineers,
power industries product specialists, curve tech-
nicians, and senior draftsmen who are employed
at our Salem. Ohio, plants. excluding all produc-
tion and maintenance employees, salesmen, in-
dustrial engineers, exempt employees, profes-
sional employees, confidential employees.
guards, and supervisors as defined in the Act.
244 NLRB No. 15
ORDER
10(
DEC(ISIONS OF NATIONAL LABOR REI.ATIONS BOARD
WI! Wlltl. NOI discourage membership in or ac-
tivities on behalf of the Union, or any other
union. by withholding accrued vacation pay and
other accrued compensation from strikers or by
otherwise discriminating against employees in
their hire or tenure.
Wl WILL. NO[ in any other manner interfere
with, coerce, or restrain employees in the exer-
cise of rights guaranteed them by Section 7 of the
National Labor Relations Act.
WE. wii.l. bargain in good ftith with United
Steelworkers of America, AFL- (CIO -CLC. I.ocal
8353, as the exclusive collective-bargaining rep-
resentative of all of our office and technical em-
ployees (with certain exceptions), and, if an un-
derstanding is reached, w w.l. embody that
understanding in a signed written agreement.
The certification year under which such bargain-
ing will take place will begin to run from the date
that bargaining in good faith begins.
WF wit.. furnish the Union complete data. in-
cluding fund reports, of' our companywide sala-
ried-employee pension plan and a current list of
the names, dates of hire, wage rates, and classifi-
cations of all bargaining unit employees. WE.
wit.t also furnish the Union any other requested
information which is relative to the performance
by the Union of its obligations as bargaining rep-
resentative.
WE Wltl. offer the ibllowing named persons
full and immediate reinstatement to their former
positions or, in the event that their fbrmer posi-
tions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or
to other rights and privileges previously enjoyed.
discharging if necessary any employees who were
hired to take their places:
Sally Anderson
Gilda Bell
Helen Bodirnea
Dorill Catlin
Jim Chuck
Dennis DeRoads
Kathy Detell
Tom Emmerling
Carol Evans
Linda Fife
Judy Flory
Gary Goodman
Saundra Hall
Tony Hall
Naomi Hart
Debbie Hickey
Dwight Jordan
Lucille Karnofel
Sue Kibler
Bev Knecht
Helen Labbe
Penny Landsberger
Hilda Linder
Cindy Meek
Roseanna Osborn
Ruth Pierce
Sue Koons Plegge
Rose Reardon
Cathy Reese
Rita Ruble
Mark Scullion
Mary Lynn Seifert
Vera Waggle
Diane Weldon
Margret Wolfe
Dennis Wright
Shelly Zimmerman
WE WILL make whole the above-named em-
ployees and any other unit employees who took
part in the strike in 1977 for any loss of pay or
benefits, including accrued vacation pay, which
they suffered by reason of the discrimination
practiced against them, with interest.
CRANE COMPANY DEMIN(; DIVISI()N
DECISION
FIND)IN(S O() F(i
A. SlallCtIC't rthe ('ae.
WAI 1IR H. MAI.()NY. JR., Administrative Law Judge:
This case came on for hearing before me at Salem. Ohio.
upon an unfair labor practice complaint' issued by the Re-
gional Director for Region 8 and amended at the hearing.
which alleges that Respondent Crane Company. Deming
Division.2 violated Section 8(a)(I). (3). and (5) of the Act.
More particularly, the complaint alleges that Respondent
violated its duty to bargain in good faith with the Union by
a wide assortment of acts and omissions and that, in gen-
eral. it approached its duty to bargain with no intention of
entering into a final and binding agreement. The complaint
also alleges that Respondent failed to pay strikers their ac-
crued vacation pay and tailed to continue in effect its merit
increase plan. all in violation of Section 8(a)(3) of the Act.
Of critical significance is the allegation in the complaint
that a strike of Respondent's office and technical employees
at the Salem plant. which began on October 25. 1977. was
an unfair labor practice strike and that all of the strikers
were entitled to reinstatement after they made an uncondi-
tional offer to return to work on December 6. 1977. Re-
spondent asserts that it bargained in good faith, that in fact
it reached an agreement with the Union. that the failure to
consummate the agreement was due to a mutual mistake of
fact concerning wage increase proposals to accomodatc so-
called red-circle employees, and that the strike which oc-
curred was an economic strike which permitted Respondent
to hire permanent replacements in order to keep its business
going. Upon the contentions. the issues herein were drawn.'
TI he principal docket entries in this case are as follows: Charge filed by
United Steelworkers of America, AFt CIO CLC, Local Union 8353 (herein
called the Union),. against Respondent (crane Company. Deming D)ivision.
on December 14. 1977: complaint issued against Respondent by the Re-
gional Director obr Region 8 on March 28. 1978: Respondent's answer filed
April 7. 1978: hearing held in Salem. Ohio. on September 19-21 and Oclober
5. 1978: briefs filed with me by the General Counsel, the Charging Palrt.
and Respondent on November 30. 1978
2 Respondent admits, and I find. that it is an Illinois corporation which
operates a plant I ocated at Salem. Ohio. where it manufactures,. sells, and
ships a variety of pumping machinery, In the course and conduct of this
business it annually ships from its Salem. Ohio. plant directly to points and
places outside the State of Ohio godxls alued in excess of $50000. Accord-
ingly. it is an employer engaged in commerce within the meaning ot Sec
2(21. (6), and (7) of the Act. The Union is a labor organilation ithin the
meaning of Sec. 2(5) of the Act.
('ertain errors in the transcript are hereb noted and corrected
104
CRANE (COMPANY
B. The Unfiir Labor Practices . llleged
Respondent is a large multinational corporation which
operates a number of plants throughout the United States
and overseas. Its principal office is in New York City. New
York. At Salem, Ohio, it operates two plants which manu-
facture a wide variety of water, chemical, and sewage
pumps. For many years it has maintained a collective-bar-
gaining relationship with the Union covering about 400
production and maintenance employees at the Salem
plants. It also has contracts with Steelworker (USWA) lo-
cals covering office and technical employees at other loca-
tions. At issue in this case is its relationship with the Union
in an 80-man office and technical employee unit at Salem.
Early in the fall of 1975 the Union won an election con-
ducted at the Salem office and technical unit. On September
13. 1974, it was certified by the Board. Respondent chal-
lenged the certification and was ordered by the Board to
bargain with the Union. (218 NLRB 130.) The United
States Court of Appeals for the Sixth Circuit set aside the
certification and the bargaining order because of preelec-
tion irregularities and required the Board to direct a second
election. (526 F.2d 430.) Respondent objected to the hold-
ing of a second election, because it felt that the Union's
showing of interest was stale. Rather than continue with
time-consuming litigation on this point, the Union with-
drew its first petition for an election, obtained a fresh show-
ing of interest, and filed a second petition for an election. A
second election was held on December 8. 1976. and the
Union was certified as bargaining agent on December 15.
1976, some 2 years and 3 months after the first certification
(Case 8-RC-9457).
Immediately after certification, the Union. acting
through its Salem-based subdistrict director, James Kru-
menacker, wrote to Respondent's Salem personnel director.
Paul R. Campanelli, and asked for II different items of
information in preparation for making a bargaining de-
mand. Krumenacker stated in his letter to Campanelli that
he requested a prompt response "following which we will
be suggesting date, time, and place for initial collective bar-
gaining sessions." On January 14. 1977, Campanelli re-
sponded with certain information which will be discussed
infra.
Krumenacker had dealt with Respondent's labor rela-
tions personnel over the years in his role as bargaining rep-
resentative in the production and maintenance unit and was
well acquainted with them. During February-April 1977 he
placed frequent calls to New York to David Swindell. Re-
spondent's manager of labor relations, and occasionally to
Swindell's immediate superior, Burns Huttlinger. Respon-
dent's director of industrial relations, in an attempt to set
up a date for negotiations. Both told Krumenacker that
they were very busy going about the country handling Re-
spondent's various labor relations problems, but they' would
attempt to get started with negotiations on the Salem office
and technical (O&T) unit as soon as they could. The first
meeting was arranged for April 26, 1978, some 4 months
after the certification was issued.'
'The parties stipulated that between April 26 and December 6 some 28
meetings took place between the parties for the purposes of collective bar-
gaining. The meetings occurred on April 26: June 15: Jul) 20: August 3.4. 5.
The April 26 meeting was attended b comlan repre-
sentatives Swindell. Campanelli. and Janet Burns. Mrs.
Burns is the supervisor of employment at the Salem plant.
On the Union side were Krumenacker. a four-member
plant bargaining committee, and Donald Walters. an inter-
national representative of the Steelworkers, who is assigned
to the USWA's technical and professional department. As
negotiations proceeded. Walters became the Union's princi-
pal spokesman and negotiator. At the April 26 meeting
Walters gave Swindell a length, contract proposal contain-
ing some 27 articles. Much of the language fbr the propos-
als had been extracted from provisions contained in Re-
spondent's agreement with the Union covering the
production and maintenance unit. as well as from provi-
sions in other O&T agreements between the Union and the
Company. The proposal contained no basic wage demands.
Walters told Swindell that 4 months had elapsed since
certification and that the Union and its membership were
anxious to get the negotiations moving. Swindell said he
would take the proposals and get back to Krumenacker.
who was acting as the union representative for purposes of
arranging meetings. A few days later Swindell and Kru-
menacker had a long-distance telephone conversation, in
the course of which Swindell told Krumenacker that he was
leaving Crane and accepting employment with another
company and that Krumenacker should make further ar-
rangements for bargaining dates with Huttlinger. Krumen-
acker called Huttlinger, who informed him he was
swamped with work and was in the process of trying to hire
someone to take Swindell's place. He said he would try to
arrange something and would get back to Krumenacker.
The next meeting between the parties occurred on June
15. This was the first meeting which occurred within the
period of limitations set forth in Section 10(b) of the Act.
The principal company spokesman at this meeting was
Plant Manager Martin E. Zernick. At this meeting Zernick
proposed to union representatives that the Company be al-
lowed to reinstitute the merit increase practice that it had
been following prior to certification. This practice gave the
Company virtually unlimited authority to fix wage rates in
the bargaining unit on an individual basis. Howesver. no
increases pursuant to this practice had been given since D)e-
cember 15, when the Union was certified. The union repre-
sentatives caucused to discuss the proposal and rejected it,
informing Zernick that they wished to make a counterpro-
posal of an immediate across-the-board increase for all unit
personnel. The Union also complained that the merit in-
crease program was subject to abuse and fivoritism. Zer-
nick said he had no authority to grant such an increase and
no authority to negotiate on anything except the matter of
reinstating the merit increase program. The meeting broke
up without an agreement on anything.
The next (and third) meeting was held on July 2'0 at the
Timberlanes Hotel in Salem. This was the first occasion
that Respondent was represented by its new manager of
labor relations. Seymour Malovany. From that point for-
ward Malovany acted as company spokesman. Zernick
rarely. if ever, made an appearance thereafter at the har-
15. 16. 17, 22. 23. 29. 30. and 31: September 15, 16. 19. and 20: ('toher 1O.
11. 13. 14. and 24. No.ember 4. and 18: and De)cember aid h6
105
DE(CISIONS OF NATIONAL LABOR REL.ATIONS BOARD
gaining table. The two regular company representatives as-
sisting Malovany were Campanelli and Mrs. Burns. At this
meeting Malovany presented to union representatives a set
of company proposals in an orange-bound booklet which
came to he referred to as the orange book. Malovany in-
formed Union representatives that he had not had a chance
to study the April 26 union proposals and to reply to them
point by point, but that the orange book contained his pro-
posals on many of the same items contained in the Union's
proposal. Krumenacker told Malovany on this occasion
that the Union had been trying to get the Company to the
bargaining table since May of 1974 and that the certifica-
tion for the O&T unit had been outstanding since Decem-
ber of 1976 and suggested that the Company was quite
close to an unfair labor practice because of its dilatory be-
havior. Krumenacker also suggested that a strike might be
forthcoming unless the Company changed its tactics.
During the several sessions which took place between
company and union representatives in August 1977. the
parties discussed the language of noneconomic items con-
tained in the Union's April 26 proposal and the Company's
July 20 proposal. Malovany offered to reinstate the Compa-
ny's merit increase program but was met with the same
objections which had been given to Zernick in June. The
Union countered with an across-the-board wage increase
offer, but this was also rejected. Since the contract was the
first to be negotiated governing this particular unit, the par-
ties agreed to consider contract language before discussing
monetary matters. I credit Walters' testimony that early in
August he asked the Company for an updated seniority list
of employees in the bargaining unit. In his January 14 letter
Campanelli had supplied the Union with a list of employees
which contained each employee's date of hire, job classifi-
cation, and current salary. Walters told company represen-
tatives that he was sure that there had been new hires, ter-
minations, and promotions since the original list was
furnished, and he needed current information to enable him
to formulate wage proposals.' On August 22 or 23 Respon-
dent gave the Union an updated list of unit employees, but
the list contained no information concerning job classifica-
tions or wage rates. In a private conversation with Mrs.
Burns on August 31, Walters asked her if she had the infor-
mation in question. She said she had it with her but would
have to get Malovany's permission to turn it over to the
Union. Walters made a request for the information at the
bargaining table, and Malovany said, "[W]e'll see what we
can do about it," but the Company did not furnish the
information requested.
Walters also asked Malovany for information relating to
the pension structure of Respondent's companywide sala-
Throughout the discussion of this request for information. Walters con-
tinually described what he wanted as a "seniority list." What he was refer-
ring to was broader than merely a list of employees and their dates of hire
and included to the other data mentioned above. His inartful use of the term
"seniority list" causes some problem in evaluating the Company's response
to his demand. Walters insists that he referred to Campanelli's original letter
in making his further requests. Company witnesses disagree as to whether he
explicated to them that he wanted updated job classifications and wage rates
as well as names and dates of hire or seniority rankings. I credit Walters'
testimony that he informed company representatives that what, in fact. he
wanted was a complete update of the information contained in Campanelli's
January letter.
ried-personnel pension plan. The Union had requested that
the Salem O&T unit be brought in under the production
and maintenance unit pension plan, but the Company had
responded that it preferred that O&T employees be covered
by the regular company plan. Walters explained that this
might be acceptable, but he wanted to refer the Company's
pension plan to USWA headquarters in Pittsburgh, Penn-
sylvania, so that USWA's pension experts could look it over
and evaluate it.
Among the subjects discussed during the August meet-
ings were seniority and the question whether seniority
should be unitwide or should be by departments. The par-
ties also discussed, in detail, the grievance procedure and
the language of management-rights and no-strike provi-
sions. The company proposal on seniority had nothing in it
concerning temporary transfers, layoff notices, posting of
job openings, leaves of absence, and other matters. The
Union wanted these matters covered by the seniority
clause. As might be expected. the Company wanted a no-
strike clause, while the Union was pressing for union secu-
rity and a much narrower management-rights clause.
Union representatives complained that the Company was
unwilling to accept contract language on these subjects for
the O&T unit which had long been agreeable in other con-
tracts between the parties. Malovany persisted in proposing
contract language which he had personally drawn up.
Some headway was made in August, but union represen-
tatives were unhappy that a great deal of time was being
spent discussing contract language at the expense of negoti-
ating an economic package. They informed the Company
that if agreement could not soon be reached on contract
language so that the negotiators could proceed to economic
matters, a strike authorization might be sought from the
membership. The threat to strike was more than a general-
ized or vague suggestion by union representatives. Malo-
vany was told that unless the parties began to come to an
agreement on economics soon, a membership meeting to
obtain strike authorization would be called shortly after La-
bor Day. Malovany's reply was that he thought the parties
were making progress and that a strike would not be neces-
sary. During this period Union representatives repeated
their requests for an updated seniority list and for details of
the Company's salaried employee pension plan.
Toward the end of August the parties reviewed all of the
items in their respective proposals to see where they stood.
They agreed to take the question of management rights and
union security off the bargaining table, because no agree-
ment could be reached at that time on those issues. At the
August 31 meeting Walters told Malovany that the Union
was very unhappy about the progress of negotiations be-
cause they had not started discussing what the Union was
principally interested in, namely, basic economic proposals.
He suggested that Malovany demonstrate some good faith
by coming forward with some economic offers and voiced
to Malovany the Union's concern that the certification year
would soon expire. Krumenacker also complained about
the slowness of the negotiations, noting that over a month
had elapsed since negotiations had begun, and the parties
had not even reached agreement on contract language.
On September 12 the Union held a meeting at which
Krumenacker and Walters addressed the membership of
106
CRANE COMPANY
the bargaining unit. They expressed the opinion that the
Company was engaging in dilatory tactics, mentioned the
possibility that unfair labor practice charges might be filed.
and also made reference to the fact that the certification
year would expire on December 15. They told the member-
ship that they felt that they needed a strike authorization in
order to strengthen their hand at the bargaining table. The
membership then voted by a wide margin to give strike
authorization to the four-member bargaining committee
which was assisting Walters and Krumenacker.
When the parties resumed negotiations on September 15
at the Holiday Inn in nearby Youngstown. Ohio, Walters
informed Malovany about the strike but suggested that the
parties start moving seriously. Malovany's reply was that he
thought that negotiations were making progress. On Sep-
tember 20 the Union made its first wage demand, namely.
for three 5-percent increases, the first being granted imme-
diately, the second falling due in October. and the third
falling due in November. The proposal envisaged a contract
slightly in excess of 1 year's duration, with an expiration
date which conincided with the expiration date of the con-
tract in the production and maintenance unit. The propos-
als also called for cost-of-living adjustments (COLA) simi-
lar to the adjustments contained in the production and
maintenance unit contract. The Union also made proposals
concerning bereavement pay, jury duty. vacations, life in-
surance. and hospitalization. Malovany said that the union
proposal was unacceptable. especially a union proposal
which stated that an employee's salary would continue in
full during his period of illness. The Company offered a 15
percent (three 5-percent) increase in wages, but without a
COLA and without any equalization of the rates of employ-
ees who work in the same classification. Malovany asked
Walters for "guidance" on a wage proposal, telling him that
he wanted to "feel the Union out" and "find out where we
are headed." Before the September 20 meeting concluded.
Walters said that he was setting October 12 as a deadline
for the Company to come in with a wage proposal. Malo-
vany responded that he would certainly have a complete
wage proposal ready to present to the Union when negotia-
tions resumed on October 10.
On October 7 Krumenacker phoned Malovany's boss in
New York. Burns Huttlinger. and told Huttlinger to "put
some damn money on the table." However, when negotia-
tions resumed on October 10 Malovany had no wage pro-
posal to present. He said he did not have enough time to
put a wage offer together. He asked the Union for some
guidance as to how an economic package should be spent.
He did agree in principle to equalization of wage rates for
each job classification. The Union stated that the wide dis-
parities between persons in the samejob category were part
of the problem in establishing a wage scale.
At the October I I meeting Malovany objected to a single
rate for a job classification and preferred to offer a range of
minimum and maximum salaries for eight classifications
6 It appears from handwnritten notes in Campanelli's files that Respondent
was well aware of the details of what transpired at union meetings. He had
recorded in his own handwriting each vote taken at all meetings which oc-
curred during the fall of 1977. without being formally advised by union
spokesmen. Campanelli could not remember where he got the information.
contained in the company proposal of July 20.' Walters
stated again that he needed an updated seniority list so that
he could see exactly what each employee in the unit was
currently earning. He also reiterated a request for the Com-
pany's salaried employee pension booklet. At the October
12 meeting Malovany presented the Union a wage proposal
in the form of a chart which had been prepared b Zernick.
The document is in evidence. While what it purports is not
entirely clear. it was represented by Malovan' to be a pro-
posal to end wage inequality in classifications through sev-
eral anniversary increases. When Walters asked Matlovan
to explain what the chart was all about. Malovan\ said he
could not do so. because it was Zernick's brainchild. Zer-
nick was not present to give any explanation. One union
representative said that the Union was not interested in
anniversary increases. Walters said that he could not accept
a proposal that he did not understand. so the parties passed
on to other matters. Walters told Malovany that if there
was no resolution of economic proposals, there would be a
strike the following Monday. October 17. Hie also stated
that while no meetings were scheduled for October 13 and
14. the Union would agree to meet on those days if some-
thing could be accomplished. The parties agreed that a
union membership meeting, originally set for the evening of
October 12. be postponed until the afternoon of October 14.
During this same period Krumenacker asked Malovany
what the Company would do about paying employees ac-
crued vacation pay.' He also inquired whether the Com-
pany would continue to pay premiums for life insurance
and health and welfare insurance in the event of a strike.
Malovany said that he did not know.
The parties resumed negotiations at the Youngstown
Holiday Inn on October 13. By the end to the day the
Company had agreed to a wage increase of 55 cents an hour
per employee during the first year. plus specified hourly
increases during the second and third ears of the contract.'
It was agreed that 15 cents per hour. or $6 a week. out of
this 55-cent offer would be given to all employees as a cost-
of-living increase to provide a "catch-up." inasmuch as no
employee had received any wage increase since the Decem-
ber 15 certification. The balance of the company proposal,
namely. 40 cents per hour, would be used for equalization
of rates within job classifications. The Company also agreed
to a COLA during the third year up to a 20- or 25-cent-per-
hour maximum ("COLA with a cap"), but it refused to
agree to COLA during the second year of the contract. The
parties agreed on increases in hospitalization and insurance
coverage and also agreed that O&T employees would ob-
serve the same paid holidays set forth in the production and
maintenance contract. However. the Union insisted on 10
days of paid sick leave, while the Company was adamant in
'The salaries noted in the Company's orange book proposal on July 20
were the current salaries scales in each classification and provided no in-
crease at all
I The salaried employees handbook for the Salem plant. reised November
10, 1976, contains a provision outlining vacation pay benefits which were in
effect prior to certification. The amount of vacation begins with 5 working
days for an employee with 6 months' continuous employment prior to Janu-
ary I of the vacation year and goes up to 25 working days for an employee
with 25 or more years' continuous full-time emplo ment.
9 By this time negotiations had moved awav from a I-year contract and
were premised upon agreement to a 3-ear contract.
107
DI)('ISI()NS () NA IIONAI ABOR REI.AI IONS BOARI)
giving only 5 days of sick leave (referred to at the hearing
by Zernick as "go to hell" da't5 s because no doctor's slip
would be required). At the end of the day on October 13. it
appeared that an impasse had been reached over the num-
her of sick leave das and COLA in the second year.
At this time another problem surfaced which was not
discussed at the bargaining table but which, in the end,
proved to he the undoing of the whole bargaining effort.
Because of the wide disparity in wage rates between em-
ployees in the same job classification, different amounts of
the 40-cent-a;n-hour equalization portion of the Company's
55-cent offer would be received by different employees.
Some employees. usually those junior in service, were at the
lower end of the existing wage range in each classification
and necessarily would receive a greater increase than would
older employees near the top of the range under the equal-
ization proposal advanced by the Union and tentatively
agreed to by Respondent. Since there would be only one
monthly wage rate for each classification under the new
arrangement, some employees at the top of the existing
scale would, after receiving a 15-cent-an-hour cost-of-living
increase, end up with a rate equal to or in excess of the
amount established as the rate for their classification.")
These employees were referred to in the record by the par-
ties as "red-circle" employees. Unless some special provi-
sion were made for them, some red-circle employees might
receive no increase in wages. or at best only a nominal
increase over and above the 15-cent across-the-board hike.
Walters felt there might be about 11 I15 such employees,
but he was not sure, since he did not have an updated wage
and classification list."'' In fact. it ultimately turned out that
there were 21 red-circle employees and that this group con-
stituted about one-fourth of the bargaining unit.
The problem of these employees was discussed by Malo-
vany and Walters out of the hearing of the other members
of both negotiating teams, in what has come to be called the
Coke machine conversation. The contents and intendment
of this conversation are sharply disputed. According to
Walters, the conversation took place about 8 p.m. on the
evening of October 13, as negotiations were about to break
up because of the impasse over sick leave and COLA. As
the negotiating teams were walking out of the room where
their discussions had taken place, Malovany asked Walters
to go down the hallway to a recessed alcove where a Coke
machine and other similar vending machines were located.
The area was a noisy' one, and Malovany chose it because
he could talk to Walters at this location without being over-
heard by the other members of both bargaining committees.
Malovany reportedly said to Walters at the Coke machine
that he was surprised that Walters had not brought up the
question of red-circle employees. Walters replied that he
thought it was a comparatively minor item and that it could
wait until other issues had been resolved. He assured Malo-
vany that if other issues had been resolved, he would have
10 Malovan) insisted hroughout the bargaining on October 13 and there-
after that 55 cents an hour was the maximum that he was authorized io offer
He repeatedly said that this ceiling had been placed on him by his superiors
in New York. However in his testimony Zernick insisted that it was he and
not headquarters officials who had established this ceiling.
I credit the testimony of Walters and Local 8353 President Scullion that
no such list was ner furnished them during the course of the negotiations.
asked for more mone! to prevent red-circle employees from
ending up with nothing but a 15-cent-an-hour increase. Ac-
cording to Walters. Malovany replied. "Well. I've been
thinking about it. too. I was thinking along the lines of $12
to $16." Walters reportedly replied. "Sy. I'm not a selfish
person. I would be happy with $10 a week because, with 15-
cents across-the-board. that would give the minimum raise
to my people would [sic] equal $16 a week for all red circle
people." Malovany replied. "Well I can see no problem
with that. It's just too bad we couldn't have resolved the
other matters." At that point everyone went downstairs to
the cocktail lounge and had a few drinks before going their
separate ways.
According to Malovany, the Coke machine conversation
concerning red-circle employees took place earlier in the
alternoon. during a break between bargaining sessions.
When he and Walters arrived at the vending machine area,
Malovany states, he told Walters "Don we've got to do
something about these red circle people or we're never
going to be able to get this package sold." Walters report-
edly replied. "You're right. What did you have in mind?"
According to Malovany, he replied, "Well I was thinking
about something around sixteen bucks." to which Walters
replied, "You're getting awfully liberal. I was only thinking
in terms of ten myself." Malovany then stated. "That's be-
cause I'm a nice guy and I'm trying to get this damn thing
settled for you." Walters then stated, "Well, I think sixteen
would do it." At this point the parties, according to Malo-
vany. returned to the bargaining table, but their efforts
ended that evening in a stalemate.
Before concluding. Walters told Malovany that the union
negotiators were not even going to report the Company's
last offer to the membership because the four-member bar-
gaining committee had been ested with authority to call a
strike. He indicated that the purpose of the membership
meeting to be held the following afternoon was just to "fill
the people in on the lack of progress."
On Friday morning, October 14. Malovany left the Holi-
day Inn at Youngstown and returned to New York. Before
checking out he called Walters, who was staying at the
same motel, and asked him if there had been any change in
the Union's position. Walters assured him that there was no
change. Before Walters had left Youngstown, Campanelli
called him from Salem and asked Walters it' he could see
him. Walters told Campanelli that he was driving to Salem
and would be available at the USWA subdistrict office ear-
ly in the afternoon. He also told ('ampanelli that Malovany
was taking a plane back to New York, in response to which
statement Campanelli expressed both surprise and disbelief.
Later the same afternoon Campanelli and Zernick came
to see Walters. who had checked in at the Timberlanes Mo-
tel in Salem. Zernick told Walters and Krumenacker. who
joined them. that they' had a little "sweetener" for him.
Zernick had spoken with company officials in New York
and was now offering an agreement containing a C'OLA
provision for the second year of the wage agreement in the
same amount appearing in the production and maintenance
contract.' 2 However, the ('ompany was making no change
12 MalosanN was not consulted about this prilpolsal. ils he was not avail-
able.
108x
CRANE COMPANY
in its insistence on the 5-day limitation on sick leave. Zer-
nick expressed to Walters an opinion that he had an obliga-
tion to report this latest offer to his people, who were sched-
uled to meet about 5 p.m. at the Italian Hall across the
street rom the Hotel. Krumenacker interjected thatt he had
no obligation to report anything to anyone except to the
bargaining committee, and he would leave it to the commit-
tee to determine what course of action should he follo Aed.
I credit the testimony of Walters that he also told Zernick
that he had to have some money for the red-circle emplo,-
ees. Walters related to Zernick his conversation with MNalo-
vany and told Zernick that he could not go into a member-
ship meeting and tell red-circle emploxees that they were
only getting a $6 raise (the across-the-board adjustment)
when they had been without an increase for a ear or more.
Walters said he did not know exactly how man employees
fell into that category but believed it was between 10 and
14. Walters also told Zernick that, in the course of his con-
versation with Malovany, he had said to Malovman that $10
a week was enough for the red-circle people because he was
not a selfish person. Zernick's reply to Walters was what-
ever he and Malovany had between them was "our busi-
ness.... If he told you this. I'm sure he'll live up to it."
A membership meeting was held shortly thereafter at the
Italian Hall. Walters explained to the assembled enployees
the latest economic proposal, including the Company's 5-
day limitation on sick leave. He also related his understand-
ing of the agreement relating to red-circle employees. that
each of them would receive an increase in wages amounting
to $16 per week, even though the increase might bring their
individual rates above the flat rate agreed upon for their job
classification. He also explained to them that there still re-
mained some wide differences on contract items and lan-
guage. The membership ratified the wage proposal b a
wide margin, whereupon Walters phoned Zernick and
Campanelli to inform them of the vote. Zernick and Cam-
panelli then came to the Italian Hall and participated in the
convivial evening with the union representatives and var-
ious company employees.
Monday. October 24. was the date set for continuing ne-
gotiations with respect to noneconomic items.'" Malovan
brought with him to this meeting a proposed written con-
tract, which recited the economic terms which had been
agreed upon and his assessment of what a final agreement
on all terms might contain. Mrs. Burns presented the Union
a chart showing the names, classifications, and proposed
monthly salaries of every individual in the unit. Beside the
name of each of the 21 red-circle employees she had placed
an asterisk which referred to a statement at the bottom of
the page reading "One time bonus." Walters asked Malo-
vany what this notation meant. and Malovany replied that
it was the money that the two of them had agreed upon at
the Coke machine conversation on the afternoon or evening
of October 13. Walters insisted that the agreement as for
$10 a week plus a 15-cent-per-hour, or $6-per-week. across-
" At the time the vote was taken on October 14 on the economic aspect
of the contract, no agreement had et been reached by company and union
negotiators on such items as management rights. union security checkoff.
maternity leave. civil rights. safetyl and health. Of necesstuy this (le was
limited to an approval ,l the economic offers which had been agreed upon
that week.
the-board increase. Malovans disputed this statement. ar-
guing that they only agreed that red-circle employces ould
receive a single $16 bonus at the time the increases ent
into effect. The two protagonists argluedl hitterls oer this
point. and at that point negotiations broke up on an acri-
mnoniouS note.
()n te lloing a. ctober . the lowg d tobe t nio called a
lunch hour meeting of emplo,,ees at Mlullins Hall. near the
plant. At this meeting Walters explained to the membership
the dispute het een himselfanlid MNalosvan' about red-circle
employees. He accused the Compan! of' reneging on a comn-
mitment and stated that this action as the basis for aln
unfair labor practice charge. Krunlenackcr c\xpressedl the
opinion to the membership that Mialox;li 's lates slate-
ment was one more indication that the (Compan nexer in-
tended to come to terms with the [lnion in the first place.
He mentioned thalt 10- /2 months had elapsed since certifi-
cation. that the certification ear wsas fast dra ing to a
close, and that the (Compan had reneged after the lnion
thought it had a settlement on economic itelms. The m-
plosees voted to strike and imiediatelk therreatter set uip
picket lines in front of' both the Broadlu;l and tIhc e llen
Road plants.
The picketing had the effect of shutting d o, n the planIts
because production and maintena;nce workers refused to
cross the picket lines. The Compani obtained a state court
injunction against the refusal f prodlctlion workers to
abide bh their contract. At the hearing on the inj uctio at
the Columbiana County Court of' Cotlnmon Pleas inl liisbon.
Ohio. Zernick made the suggestiotn to Krumenalcker that
they flip a coin to determine whether the red-clicle emplo -
ees should get $16 a week or a $16 one-time bonus. Kru-
menacker's repl, was that he w ould agree only i Zernick
used a two-headed coin. Shortly after the strike hegan Re-
spondent offered to arbitralte the question of whetlher NLao-
vans's ersion or Wa;lters' ersion of' the Coke mitchine con-
sersation v ;as correct. lThe U niiin refused andl called upon
the Comnpan to honior its asseltLed conmmitmenlllt respecting
red-circle eplo(ees.
Shortl,; after the strike began the ('ompan n tified Kru-
menacker thilt it would not continue to) pa premiums for
striking emplosees on the life insurance and the health aid
welfare insurance group policies which it carried on all em-
ployees. Their coser;lge ,ais terminalted on Octobehr 31.
Krumenacker asked Campanelli for forms hich wuutld
permit strikers to convert their insurance into individual
policies. Krumenacker found out from some members that
the policies were carried by the Equitable l ife Assurance
Companies. He called Equitable to obtain some cons ersion
forms. The Company finally obtained some forms for this
purpose from Equitable's headquarters in Bethpage. Ne
York. and gave them to him.
At a November 4 negotiating session KrumenaclCker asked
Malovan> il'f strikers would receise vacation pa As hich they
had accrued prior to the strike. Maloviani told him there
would be no sacation pa, for strikers. Krumcnacker arguled
strenutously about this decisionl bitll to no atail. )uliing tlhe
i' Ihe pickels used homemade picket !ls ign, thier thlan prillel t lSe ,s (I)c
sign said "On Strike," alnolher said "Pleise Ilnor ()ur line. ." an a Ihird ignrI
depicted n indisiduai ,uith i large screws prirudlig through hit, h,s
1)09
I)0:( ISIONS OF NATIO)NAI. LABOR REL:.A IONS BOARD
strike Waiters again asked for pension inforilation. Malo-
vany told him he would send him a revised pension booklet
as soon as it was prepared, but he never fulfilled this prom-
ise. About two members of the bargaining unit crossed the
picket line to work. The Company took advantage of the
strike situation to reduce the size of the bargaining unit b5
six jobs.
On December the Union threw in the sponge. Krumen-
acker led a group of about 60 strikers to the company of-
fice; agreed to accept the ('ompan's last ofler, including
the $16 one-time bonus for red-circle employees: and told
Malovany that all strikers offered to return to their jobs
unconditionally. He presented Malovany with a letter to
the same effect. At that time Malovany informed Krumen-
acker that there were only 28 or 29 jobs available in a bar-
gaining unit which was formerly composed of 80 people. Iie
told Krumenacker that the size of the unit had been re-
duced and that permanent replacements had been hired for
more than 40 strikers." He suggested that Krumenacker
inform the assembled employees of this situation. However.
Krumenacker insisted that it was Malovany's responsibility
to do so. Malovany spoke to a group and informed them
that only 28 or 29 jobs remained. Returning strikers were
taken back for the positions available, although there is
some controversy as to whether all of them are occupying
the same positions they held before the strike. As of the
time of the hearing in the instant case, about 10 strikers had
not been recalled.
The Union wrote to Respondent immediately after termi-
nating the strike and offered to continue to bargain, sug-
gesting that the presence of a Federal mediator would he
helpful. The Company's immediate response was to agree
to resume bargaining. However, on December 15, 1 year
exactly from the date on which the certification was issued,
a decertification petition was filed in this bargaining unit.
Thereafter. Respondent wrote the Union. noting the filing
of the decertification petition, and declined to bargain fur-
ther because it doubted the Union's continued majority sta-
tus.
C. Analysis and Concl.usions
I. The statute of limitations
The relationship between the Company and the Union
which culminated in a strike and the replacement of about
37 strikers in the late fall of 1977 had its genesis early in the
spring of 1974. The question arises as to how much, if any.
of this history can be looked to in evaluating the conduct of
Respondent at the time its activities properly became the
subject Board litigation. The lead case on this subject is
Bryan Manufacturing Company,' in which the Supreme
Court stated:
It is doubtless true that Section 10(b) does not pre-
vent all use of evidence relating to events transpiring
more than six months before the filing and service of
15 The General Counsel does not contend that the replacements were not
permanent or bona fide.
6 Local Lodge No. 1424. Inernational As.tociation oS MA