Crane Co.

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.