The Timken Silent Automatic Co.

National Labor Relations Board - Board Decisions

Mar 3, 1939

11 N.L.R.B. 901 (N.L.R.B. 1939)

In the Matter of THE TIMKEN SILENT AUTOMATIC COMPANY, A COR-
PORATION and EARL P. ORMSBEE, CHAIRMAN, EXECUTIVE BOARD, OIL
BURNER MECHANICS ASSOCIATION
Case No. C-10
Dissolution: respondent subsidiary dissolved by parent after hearing and be-
fore Board's order ; parent, as successor, assumed obligation and liabilities of
respondent-Recommended Modification of Order: Board recommends to Circuit
Court of Appeals that Order against respondent, amended to meet changed con-
ditions, be enforced.
Mr. Jacob Blum and Mr. Daniel Baker, for the Board.
Alexander & Green, by Mr. Herbert S. Ogden, of New York City,
for the respondent.
Mr. Frank Scheirer, of New York City, for the Union.
Mr. Robert L. Condon, of counsel to the Board.
SUPPLEMENTAL FINDINGS OF FACT
AND
RECOMMENDATIONS
March 3, 1939
On March 17, 1936, after a hearing, the National Labor Relations
Board, herein called the Board, issued a decision in this case, in
which it found that The Timken Silent Automatic Company, a cor-
poration, Long Island City, New York, herein called the respondent,
had engaged in and was engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1), (3), and (5) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. The unfair labor practices so found con-
sisted in discrimination against 18 of the respondent's employees in
regard to hire and tenure of employment, thereby discouraging mem-
bership in Oil Burner Mechanics Association, herein called the Union;
in the refusal to bargain collectively with the Union; and in in-
terfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act. The Board in
i 1 N. L. R. B 335.
11 N. L. R B., No. 71.
164275-39-vol. X1---58 901
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substance ordered the respondent to cease and desist from such prac-
tices; upon request, to bargain collectively with the Union; to offer
employment to the 18 employees who had gone out on strike as a re-
sult of the unfair labor practices of the respondent and had not been
reemployed, to the extent that work was available and was being
performed by persons hired since September 24, 1935, the date of the
strike; to make whole those who were refused employment for any loss
of pay they might have suffered by the respondent's refusal to employ
them; and to place on a preferred list those employees for whom
employment was not available.
On March 24, 1936, the respondent, by its attorneys, filed a motion
to amend the Board's Decision, and exceptions thereto. The Board
duly considered the motion to amend and the exceptions and, on April
6, 1936, denied the motion. Pursuant to Section 10 (e) of the Act,
the Board, on August 13, 1937, petitioned the United States Circuit
Court of Appeals for the Second Circuit, herein called the Court, for
the enforcement of its Order. Thereafter, the Board learned that the
respondent claimed to be dissolved, and on December 22, 1937, it
filed with the Court a motion to remand the proceeding to it for fur-
ther proceedings in which additional evidence might be adduced
upon the question of the dissolution of the respondent, any successor
or successors to its operations, and the obligation of the respondent
and any successor to comply with the Board's Order. On January
24, 1938, the Court granted the Board's motion to remand.
Pursuant to notice duly served upon The Timken Detroit Axle
Company, herein called the Axle Company, the parent of and suc-
cessor to the respondent, and the Union, a hearing was held in New
York City, on May 9, 1938, before Harold Stein, a Trial Examiner
duly designated by the Board, and on July 15 and 29, 1938, before
Howard Myers, a Trial Examiner similarly designated. The Board,
the respondent, and the Union were represented by Counsel2 and
participated in the hearing. Counsel for the respondent also ap-
peared specially for the Axle Company for the sole purpose of object-
ing to the Board's jurisdiction. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues was afforded all parties. At the hearing evidence
was adduced showing the amounts earned by the 18 individuals con-
cerned after they were discriminatorily refused reinstatement. We
set forth these amounts in Appendix A for the guidance of the
Regional Director.
During the course of the hearing before Trial Examiner Myers,
counsel for the respondent moved to dismiss the proceeding on the
2 Counsel for the respondent appeared as amicus curiae for the respondent , since he
claimed that the dissolution of the respondent made impossible its being it party to the
pioceeding.
THE TIMKEN SILENT AUTOMATIC COMPANY ET AL. 903
grounds that the respondent had dissolved and ceased to exist and
hence the Board was powerless to enforce its Order against it, or, in
the alternative, if the proceeding be considered as against the Axle
Company, it should be dismissed because the latter was not named
in either the charge or the complaint, nor was there any allegation
that the employees here concerned were ever employees of the Axla
Company. The Trial Examiner denied this motion. The Trial Ex-
aminer made several other rulings on motions and on objections to
the admission of evidence. The Board has reviewed the rulings of
the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed.
On February 6, 1939, the Board issued an order directing issuance
of proposed supplemental findings of fact and proposed recommenda-
tions for modification of the Board's Order; directing that no Inter-
mediate Report be issued; and granting the right, within ten (10)
days, to file exceptions and to request oral argument and permission
to file briefs; and, pursuant thereto, issued proposed supplemental
findings of fact and proposed recommendations for modification of
the Board's Order. Copies of the order and of the proposed supple-
mental findings of fact and proposed recommendations for modifica-
tion of the Board's Order were duly served upon the respondent and
the Union. More than ten (10) days have elapsed since such service,
and neither the respondent nor the Union has filed exceptions, or
requested oral argument or permission to file a brief.
Upon the entire record in the case, the Board makes the following :
SUPPLEMENTAL FINDINGS OF FACT
I. DISSOLUTION OF THE RESPONDENT
A. Relation of the respondent to the Axle Company
The Timken Detroit Axle Company is an Ohio corporation en-
gaged in the manufacture and sale of axles, engines , machinery,
equipment, oil burners, boilers, air-conditioning devices, fire hydrants,
and other products; and its plant and principal place of business are
located in Detroit, Michigan. Prior to 1925, the Axle Company was
engaged principally in the manufacture of axles and other auto-
motive products. It was not then manufacturing oil furnaces, oil
boilers, water heaters,'or related products.
Sometime in 1925 the Axle Company acquired an oil-furnace and
oil-boiler business which it purchased from the Socony Burner Cor-
poration, a subsidiary of the Standard Oil Company of New York.
On August 15, 1925, The Timken Silent Automatic Company, the
respondent herein, was incorporated , as a wholly owned subsidiary of
the Axle Company , in order to carry on the business of manufactur-
ing, selling, installing , and repairing oil boilers , oil furnaces, water
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
heaters, and heating accessories and parts .3 The respondent manu,
factured its products in Detroit, Michigan, in a four-story building;
it retailed through a number of branches and dealers. The first
floor of the Detroit building was utilized by the respondent for the
production of furnaces, boilers, and related products, and the top
three floors were used by the Axle Company for its offices. The
record indicates that the Axle Company closely supervised the
activities of its subsidiary, the respondent. Wages and working con-
ditions of employees of the respondent were determined by officials
of the Axle Company, and at all times prior to its dissolution policy-
making positions in the respondent were held by officers of the Axle
Company. Although the respondent's sales and advertising were
independently handled and its books, kept separate from those of the
Axle Company, it is apparent that in fact the Axle Company domi-
nated and controlled the affairs of the respondent.
B. Circumstances surrounding the dissolution of the respondent
On January 15, 1936, after the original hearing in this proceeding,
but before the Board's Order was issued , the Axle Company , as sole
stockholder of the respondent, by a stockholder's resolution, con-
veyed all the property of the respondent to itself in consideration of
its assumption of all the respondent's debts and obligations and the
surrender of all the respondent's capital stock to the respondent for
cancelation . The respondent's articles of incorporation on this occa-
sion were amended to provide for the expiration of its charter on
January 31,' 1936. On the same day that this resolution and amend-
ment were adopted, the directors of the Axle Company voted to
dissolve all its wholly owned subsidiaries, including the respondent,
and to have conveyed to the Axle Company all their property in
complete liquidation of such subsidiaries.
At the time of dissolution the respondent had the following
officers: Williard Rockwell, president; Walter Rockwell, R. J. Goldie,
W. J. Roberts, and M. E. Powers, vice presidents; W. C. Wood,
secretary and treasurer. The officers of the Axle Company on this
occasion were as follows : Williard Rockwell, president and general
manager ; R. J. Goldie and Walter Rockwell, vice presidents; and
W. C. Wood, secretary and treasurer.
After the dissolution the business formerly carried on by the
respondent was continued in exactly the same way by the newly
created Timken Silent Automatic Division of the Axle Company,
herein called the Division.4 Furnaces and boilers were manufac-
s Apparently the respondent was first called the Timken Detroit Company , but prior to
1933 the articles were amended to change the name to The Timken Silent Automatic
Company.
4 The Axle Company subsequently incorporated a non-operating company called Timken
Silent Automatic Company In order to protect this name.
THE TIMKEN SILENT AUTOMATIC COMPANY ET AL . 905
tured in the same building and by the same employees as prior to
the dissolution. The branches of the respondent were likewise un-
affected by the transfer, with the exception of a few unimportant
changes in personnel. The Axle Company renewed the licenses of its
dealers in the name of the Division and assumed all the obligations
under the contracts which had been made by the respondent. Haw-
kins, the treasurer of the Axle Company, testified, and we find, that
no changes in the physical operations of the furnace and boiler busi-
ness were made that would not have been made had the respondent
continued to exist as a separate corporation. In short, the dissolu-
tion of the respondent and the transfer of its assets to the Axle
Company constituted a mere bookkeeping entry, and for all practical
purposes the Division is identical in nature with the respondent.
C. The history of the Long Island branch after the dissolution
The controversy with which we are concerned existed between the
respondent and the employees of its Long Island branch.5 The only
result of the change in the corporate structure, in so far as the oper-
ations of the Long Island branch were concerned, was that after the
dissolution different letterheads and stationery were used, and that
advertising was in the name of the Division of the Axle Company
and not the respondent. Shipments came from Detroit in exactly
the same way as they had come before the dissolution. The branch
continued to serve the same customers with the same type of mer-
chandise. Personnel in the plant was unaffected by the dissolution.°
There had been, however, a notable personnel change as a result of
the strike in September 1935 in that a number of employees were
hired during and subsequent to the strike to replace the strikers,
whom the Board had ordered the respondent to reinstate.' The
Axle Company has failed to comply with the Board's Order.
After the dissolution and until March 1937 the Long Island branch
continued to function in much the same manner as it had previously,
although there was apparently some diminution in business as a
result of the strike. In March 1937, the branch moved from Long
B For a detailed description of the activity of the Long Island branch prior to dissolu-
tion, see the original opinion of the Board in this proceeding , 1 N. L. R . B. 335, 338-339.
O There is one possible exception since two major supervisory employees were replaced
shortly after the dissolution . It does not appear whether this replacement was the result
of the dissolution , whether it was an aftermath of the strike , or whether it was for other
reasons.
7 Two professional strikebreakers, Spielman and Lynch, were hired during the strike
and continued working until the summer of 1937. In addition the following employees
were hired after the strike, although they had either no previous employment record or
had not « orked for the respondent for at least a year prior to the strike; Yolk, Gordon,
Nobler, Citronio, Tripp, Vallee , Weber, Arnold, Fasey , Slosser, Driscoll , Cole, Waitwoot,
Tate, and Christiansen. The last two named transferred to the Long Island branch from
other branches of the respondent . The record upon which the order of March 17, 1936,
was based reveals that some 20 new men were hired in place of and In preference 1o the
strikers. 1 N. L. R. B . 335, 342-343.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Island to the Bronx, and at that time the Axle Company transferred
to private dealers part of the territory formerly handled by the Long
Island branch. From March 1937 to January 1938, the Bronx branch
continued the business of receiving, selling, installing, and servicing
of oil furnaces, oil burners, water heaters, and heating accessories
and parts, within a part of the territory theretofore served by the
Long Island branch. The record reveals that the personnel of the
Long Island branch was transferred to the Bronx intact, although a
number of lay-offs were then necessitated by the smaller amount of
business done by the Bronx branch. On January 1, 1938, the Axle
Company turned over all of the work formerly done by the Bronx
branch to private dealers and the branch was discontinued. There-
upon all employees of the branch were laid off.
D. Obligation of the Axle Company to comply with the Board's
Order
On March 24, 1936, by permitting the filing in the respondent's
name of exceptions to the Board's Order and a motion to amend it,
the Axle Company concealed from the Board the fact that it had
dissolved the respondent and affirmatively held out that the respond-
ent on that date enjoyed corporate existence.8 A similar represen-
tation was made to the Union.9 The Board was, therefore, unaware
of any change in the respondent's status until after it had petitioned
the Court for enforcement of its Order on August 13, 1937.10 The
Axle Company, however, was well aware that the proceeding herein
was pending against the respondent at the time it caused all the
respondent's property to be transferred to itself.
We believe that the Axle Company is under obligation to comply
with our Order against the respondent. As we have indicated above,
its officers were, almost without exception, identical with those of
the respondent. It owned all the respondent's stock, dictated its
labor policies, and controlled and dominated its affairs. By assum-
ing all the obligations and liabilities of the respondent with notice
8 The motion , signed in the name of the respondent by its attorneys , asked that the
Board's original Decision be amended by the incorporation of a stipulation signed by the
Board and the respondent . This amendment would have included the following: "The
Timken Silent Automatic Company . . . is a Michigan corporation, and from a time long
prior to July 5, 1935 , has continuously been and still is duly authorized as a foreign
corporation to do business in the State of New York . . ." [Italics ours.]
9 Board Exhibit No . 15 is a letter from counsel for the respondent to counsel for the
Union. It states :
re : The Timken Silent Automatic Company
Referring to your letter of the 27th ultimo Our client has instructed us to advise
you that it does not recognize the validity of the order of the National Labor Rela-
tions Board and has filed exceptions thereto.
Yours very truly
ALEXANDER & GREHN.
This letter is dated April 2, 1936.
10 The first notice the Board had of the dissolution of the respondent was contained in
a letter from the respondent 's attorneys , dated November 22, 1937.
THE TIMKEN SILENT AUTOMATIC COMPANY ET AL. 907
of this proceeding, it stands in exactly the same position as the
respondent, and should be required to comply with. our Order."
Since the record reveals that no change was made in the physical
operations of the oil-furnace and oil-boiler business that would not
have been made had the respondent continued its corporate existence,
we believe that the liability assumed by the Axle Company was a
continuing one. Hence the Axle Company should be required to
comply for the entire period during which it ignored the Order.
If there had been compliance with our Order, many of the men dis-
criminated against would have had employment until March 1937,
when the Long Island branch was discontinued. Some doubtless
would have been employed at the Bronx branch until January 1,
1938. We find that the Axle Company is a successor of the re-
spondent. It must, therefore, make whole the employees for the
entire loss in pay that was caused by the unlawful conduct of the
respondent and the Axle Company.
H. THE REMEDY
The Axle Company has assumed the obligation of the respondent
and at all times has been under a duty to comply with our Order
against the respondent.12 We shall recommend, however, that our
Order against the, respondent be amended to meet the changed con-
ditions. Since the Axle Company no longer maintains a branch in
the New York City area, we shall recommend that the requirement
that the respondent bargain collectively with the Union, and the
requirement that it reinstate the 18 employees to their jobs be stricken
from our Order. The Order should, however, require the respondent,
and its successor, to cease and desist from the unfair labor practices,
and make the 18 employees whole for loss of pay they have suffered
by reason of their failure to obtain reinstatement by payment to
each of them of a sum equal to the amount he normally would have
earned as wages from the date of the failure to reinstate him after
li Cf. National Labor Relations Board V. Hopwood Retinning Company, 98 F (2d) 97
(C. C. A. 2d) (1938).
>a Michigan Statutes Annotated, Title 21, Chapter 195, Section 75 provides : "All cor-
porations whose charters shall have expired by limitation or dissolution or shall be an-
nulled by forfeiture or in any other way or manner have become void shall nevertheless
continue to be bodies corporate for the further term of three ( 3) years from such expira-
tion, dissolution or forfeiture for the purposes of prosecuting or defending suits for or
against them and of enabling them gradually to settle and close their affairs and to dis-
pose of and convey their property and to divide their assets ; but not for the purpose
of continuing the business for which such corporations were organized; Provided, That
with respect to any action, suit or proceeding begun or commenced by or against the
corporation prior to such expiration, dissolution or forfeiture and with respect to any
action, suit or proceeding begun or commenced by the corporation within three ( 3) years
after the date of such expiration , dissolution or forfeiture , such corporation shall only
for the purposes of such actions, suits or proceedings so begun or commenced be con-
tinued a body corporate beyond said three (3) year period and until any judgments,
orders cr decices shall be fully executed; . . . . [italics ours.]
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request to the date on which his services would normally have been
discontinued prior to January 1, 1938, when the Bronx branch was
closed, less his net earnings 13 during said period. We shall look
to the Axle Company for compliance with our Order as amended.
RECOMMENDATIONS FOR MODIFICATION OF THE
BOARD'S ORDER
Upon the basis of the above supplementary findings of fact, and
the findings of fact, conclusions of law, and Order of the Board is-
sued March 17, 1936, and pursuant to Section 10 (e) of the National
Labor Relations Act, the National Labor Relations Board hereby
recommends to the Circuit Court of Appeals for the Second Circuit
that the Order of the Board against The Timken Silent Automatic
Company be amended to read as follows :
Upon the basis of the findings of fact and conclusions of law
issued March 17, 1936, and the foregoing supplemental findings
of fact, and pursuant to Section 10 (c) of the National Labor
Relations Act, the National Labor Relations Board hereby or-
ders that the respondent, The Timkin Silent Automatic Com-
pany, and its officers, agents, successors, and. assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Oil Burners Mechanics As-
sociation or any other labor organization of its employees, by
discharging, laying off, or refusing to reinstate any of its em-
ployees or in any other manner discriminating in regard to their
hire or tenure of employment or any term or condition of their
employment;
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-or-
ganization, to form, join, or assist labor organizations, to bar-
gain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collec-
tive bargaining and other mutual aid and protection, as guar-
anteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
13 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent , or its successor , which would not have been incurred but
for the unlawful refusal to reinstate and the consequent necessity of his seeking employ-
ment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of
Carpenters and Joiners of America, Lumber and Sawmill Workers Union , Local 2590, 8
N, L. R. B. 440. Monies received for work performed upon Federal, State, county, munici-
pal, or other work-relief projects are not considered as earnings but, as provided below
in the recommendation for modification of our Order , shall be deducted from the sum
due the employee , and the amount thereof shall be paid over to the appropriate fiscal
agency of the Federal , State, county , municipal , or other government or governments
which supplied the funds for said work -relief projects.
THE TIMKEN SILENT AUTOMATIC COMPANY ET AL . 909
(a) Make whole Walter E. Moran, John Kohut, Bernard Mul-
cahy, Harold J. Schultheis, Anthony Bero, John William Der-
woechter, Earl P. Ormsbee, Eugene Ryan, John R. Romann,
Daniel Gardner, Edward J. Lennon, Ira S. Zweicher, James Kav-
anagh, Everett N. Korn, Julius Schwartz, Philip Theiss, Thomas
O'Reilly, and Patrick Burns for any loss of pay they may have
suffered by reason of the failure of the respondent, and its suc-
cessor, to reinstate them, by payment to each of them, respectively,
of a sum of money equal to that which he would normally have
earned as wages from October 8, 1935, to the date upon which
his services would normally have been discontinued prior to
January 1, 1938, less his net earnings during such period; de-
ducting, however, from the amount otherwise due to each of the
said employees, monies received by said employee during said
period for work performed upon Federal, State, county, munic-
ipal, or other work-relief projects, and pay over the amount
so deducted to the appropriate fiscal agency of the Federal,
State, county, Ihunicipal, or other government or governments
which supplied the funds for said work-relief projects;
(b) Notify the Regional Director for the Second Region in
writing within ten (10) days from the date of this Amended
Order what steps the respondent has taken to comply herewith.
APPENDIX A
ame
Earnings
from Septem-
ber 24, 1935
to January
1, 193814
Federal,
State coun -
ty, munici-
pal and other
government
relief
Wages from
respondent
in year prior
to September
24 193513
James Kavanagh---------------------------------------------- $390 00 -------------- $650 63
Philip Theiss------------------------------------------------- 101,104 00 -
Thomas O'Reilly--------------------------------------------- 479 62 -------------- 20.70
Ira S. Zweicher_______________________________________________ 17 3,115 00 -------------- 1,737 36
Earl P. Ormsbee______________________________________________ 172,280 00 -------------- 864 74
Everett N Korn ---------------------------------------------- 17 3,025.00 -------------- 1,564 57
Jobn R. Romann--------------------------------------------- 2,292.11 -------------- 1,968 75
Julius Schwartz----------------------------------------------- 1,906 00 -------------- 1,420 30
Anthony Bero________________________________________________ 1,126 73 $600 16 1,142.03
Daniel Gardner----------------------------------------------- 13 1,862.59 -------------- 1,451 12
John Kohut___________________________________________________ 391.46 336 00 495.45
Eugene Ryan------------------------------------------------- 19 270 00 -------------- 1,066.51
Harold J Schultheis__________________________________________ 2,238 00 (20) 056 86
Bernard Mulcahy_____________________________________________ 212,118 00 210 46
Edward J. Lennon (a3) 23)
John William Derwoechter___________________________________ 24385.00 -------------- 2,048 13
Patrick Burns------------------------------------------------ 74 1,600 00 -------------- 250 10
Walter E Moran_____________________________________________ 24 575.00 240.00 1,272.92
14 These figures are based upon computations from the testimony given as to earnings.
15 Data from Respondent Exhibit No 1, offered July 29,1938.
10 Earnings until May 1937.
17 Earnings until June 5,1937
ii Earnings until May 29,1937.
10 Earnings until July 15 , 1936, at which time Ryan obtained and still has a job paying $135 a month.
20 Schultheis was on relief from March through July 1936, but the amount received was not indicated.
21 Earnings until November 1937.
32 Lennon was not called , and the Board made an offer of proof that if Lennon were called he would testify
that he was unemployed for a month after the strike, and then gained steady employment which continued
past January 1938.
47 No figures were given in Respondent Exhibit No. 1.
I4Information obtained from offer of proof by the Board.