Marquis Printing Corp.

National Labor Relations Board - Board Decisions

Sep 20, 1974

213 N.L.R.B. 394 (N.L.R.B. 1974)

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marquis Printing Corporation and Mutual Lithograph
Company and Local 245, Graphic Arts International
Union, AFL-CIO. Case 13-CA-12295
September 20, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On March 21, 1974, Administrative Law Judge
Robert E. Mullin issued the attached Decision in this
proceeding. Thereafter, on April 12, 1974, the Admin-
istrative Law Judge issued an errata to the original
Decision correcting the same. On April 15, 1974, the
General Counsel and Charging Party filed exceptions
with supporting briefs to the Administrative Law
Judge's Decision. On April 22, 1974, the General
Counsel filed a motion to withdraw exceptions and
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision as corrected by the Errata in the light
of the exceptions and brief ' and has decided to affirm
the rulings, findings, and conclusions of the Adminis-
trative Law Judge and to adopt his corrected recom-
mended Order, as modified herein.
We find merit in the Charging Parties exceptions
with regard to Respondent's obligation to make cer-
tain payments into the various funds involved, includ-
ing the pension fund, the supplemental early
retirement and disability fund, and the apprentice
training school.2 Accordingly, we shall modify the
Administrative Law Judge's corrected recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the corrected recom-
mended Order of the Administrative Law Judge, as
modified below, and hereby orders that Respondents,
Marquis Printing Corporation and Mutual Litho-
graph Company, Chicago, Illinois, their officers,
agents , successors, and assigns, shall take the action
set forth in the said corrected recommended Order, as
modified below:
1. Substitute the following sentence for the final
sentence in paragraph 2(d) of the Administrative Law
Judge's corrected recommended Order:
"Make such health and welfare fund , pension
fund, supplemental early retirement and disabili-
ty fund, and apprenticeship fund payments for
the employees in the appropriate unit for whom
they had previously made contributions, as re-
quired by the collective-bargaining agreement
between Mutual and the Union, had Marquis not
abrogated that collective-bargaining agreement."
2. Substitute the attached notice for the corrected
notice of the Administrative Law Judge.
1 The General Counsel's exceptions were directed to a failure on the part
of the Administrative Law Judge to have the recommended Order conform
to his basic findings , particularly with regard to Respondent 's obligation to
abide by the collective -bargaining agreement then in effect between Mutual
and the Union prior to the takeover of operations by Marquis. Although the
April 12, 1974, errata did not correct all of these deficiencies , in view of the
fact that the Charging Party's exceptions , with which we agree , provide a
complete remedy, the General Counsel's motion to withdraw his exceptions
and brief is hereby granted, and the General Counsel's exceptions and brief
are hereby deemed withdrawn.
2 Tormod Langemyr d/b/a Tom Carpentry Construction Co., 176 NLRB 124
(1969).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
Local 245, Graphic Arts International Union,
AFL-CIO, as the exclusive representative of the
employees in the unit which it represented at our
plant when the plant was operated under the
name of Mutual Lithograph Company, and we
acknowledge that we are bound by the terms of
the collective-bargaining agreement in effect be-
tween the aforesaid Union and Mutual at the
time Marquis purchased the assets of Mutual.
WE WILL NOT refuse to recall laid-off employees
and hire other employees in order to get rid of
Local 245, Graphic Arts International Union.
WE WILL offer reinstatement to their former
jobs to as many of the Mutual Lithograph Com-
pany employees represented by the aforesaid Lo-
cal 245, who were laid off on January 29, 1973,
as are presently required by Marquis Printing
Corporation, or, if those jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and privi-
leges, and place the names of any such employees
who are not offered immediate and full reinstate-
MARQUIS PRINTING CORPORATION 395
ment on a preferential hiring list and as vacancies
occur offer them immediate and full reinstate-
ment on the same conditions as above.
WE WILL make whole the employees repre-
sented by Local 245 who were laid off on January
29, 1973, for any earnings they may have lost as
a result of our discrimination against them, with
interest at 6 percent per annum.
WE WILL revoke the unilateral changes in wag-
es, hours, and working conditions instituted after
February 16, 1973, and put into effect for the
employees in the appropriate unit the wages,
hours, and working conditions set forth in the
collective-bargaining contract which Mutual had
with the Union at the time Marquis purchased
the assets of Mutual.
WE WILL make whole the employees covered by
the aforesaid contract for any loss of pay, plus
6-percent interest per annum, which they may
have suffered by reason of the unilateral changes.
WE WILL make such health and welfare fund,
pension fund, supplemental early retirement and
disability fund, and apprenticeship fund pay-
ments for the employees in the appropriate unit
for whom we had previously contributed and
would have continued to contribute, as required
by the collective-bargaining agreement, had
Marquis not abrogated the existing contract.
WE WILL, upon request, bargain with the afore-
said Union as the exclusive representative of our
employees for the unit it represents, as to the
closing of Mutual Lithograph Company, and the
effect of such closing on our employees.
WE WILL NOT in any manner interfere with, re-
strain, or coerce our employees for exercising
their rights under Section 7 of the National La-
bor Relations Act.
MARQUIS PRINTING CORPO-
RATION AND MUTUAL
LITHOGRAPH COMPANY
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Everett McKinley Dirksen Building,
Room 881 , 219 South Dearborn Street , Chicago, Illi-
nois 60604 , Telephone 312-353-7572.
DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Administrative Law Judge: This case
was heard on December 10, 11, 12, and 13, 1973, in Chicago,
Illinois, pursuant to charges duly filed and served,' and a
complaint issued on October 15, 1973. The complaint pre-
sents questions as to whether the Respondents violated Sec-
tion 8(a)(1), (3), and (5) of the National Labor Relations
Act, as amended. In their answer, duly filed, the Respon-
dents conceded certain facts with respect to their business
operations, but denied all allegations of any unfair labor
practices.
At the trial, all parties were represented by counsel. All
parties were given full opportunity to examine and cross-
examine witnesses, and to file briefs. At the conclusion of
the trial, all counsel waived oral argument. On February 6,
1973, the General Counsel, the Union, and the Respondents
submitted able and comprehensive briefs.2
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
For many years prior to February 1973, Mutual Litho-
graph Company (herein Mutual), an Illinois corporation,
was engaged in the business of commercial printing and
lithographic production work at 717-723 South Wells
Street, Chicago. Since about February 16, 1973, Marquis
Printing Corporation (herein Marquis), an Illinois corpora-
tion, has been engaged in the business of printing and litho-
graphic production at the same address. The Respondents
acknowledge that during the calendar year 1972, Mutual,
and, during the period from February 16, 1973, until the
issuance of the complaint, Marquis, had each purchased
paper and other materials valued in excess of $50,000 which
originated in States other than the State of Illinois and
which was transported to the aforesaid plant. Both Marquis
and Mutual concede, and it is found, that at all times mate-
rial herein, Mutual Lithograph Company and Marquis
Printing Corporation have been engaged in commerce with-
in the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 245, Graphic Arts International Union, AFL-CIO
(herein Union , or Local 245) is a labor organization within
the meaning of the Act.
' The original charge was filed on April 12, 1973. A first amended charge
was filed on September 21, 1973.
2 In their brief, counsel for the General Counsel moved that the record be
corrected in one minor particular, viz., that on Joint Exh . 1, the letter "R"
be changed to "Q" between the words "Exhibit" and "were" on p. 8, para.
27, 1. 3. No objections have been voiced to the proposed change. Since the
requested change involves the correction of what is obviously a typographical
error, the motion is granted and the record is corrected in accordance there-
with.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Mutual was engaged for many years in commercial print-
ing and lithographic production work at the Wells Street
plant where it occupied the first, second, fourth, fifth and
seventh floors, as well as the basement, of a 10-story build-
ing at that location. From 1960 it was a party to a series of
collective-bargaining agreements with the Union, the last of
which was a 3-year contract effective from May 1, 1971, to
April 30, 1974. Another corporation, State Printing Compa-
ny (herein State), formed in 1966 by Ronald Warczak to
print small volume orders on multilith presses, was located
in one comer of the second floor in the same building.3 State
never had more than a few employees and it was not orga-
nized by the Union.
All stock in Mutual and State was held by members of the
Warczak and Haack families. John Warczak had founded
Mutual in 1946. At the time of the trial he was 74 years old
and for some years had not been active in the business. He
and his wife, Viola, had two children, Ronald Warczak and
Carol West. Clarence Haack, Raymond Haack, and Flor-
ence Platt are the brothers and sister of Viola Warczak and
are the uncles and aunt of Ronald Warczak and Carol West.
Al West is the husband of Carol West.
John Warczak was the president of Mutual and Ronald
Warczak was the secretary-treasurer. Of approximately
24,000 shares outstanding, John and Viola Warczak held
18,763, Clarence Haack held 1,989, Ronald Warczak
1,626, and Carol West 1,626. All of the foregoing were di-
rectors of Mutual.
In the much smaller State Printing Company, Ronald
Warczak was the president and his sister Carol West was the
secretary-treasurer . Of approximately 1,000 shares of stock
outstanding, Ronald and Carol held 450 shares each and
Raymond Haack, their uncle, held 100 shares . These three
also made up the board of directors.
The 10-story building in which Mutual and State con-
ducted their business was owned by the Wells Building
Corporation (herein Wells), another family corporate enter-
prise in which John and Viola Warczak hold 50 percent of
the stock and the remaining half is held by Florence Platt
and Clarence and Raymond Haack.
From and after 1968 Mutual was frequently delinquent in
making health, welfare, and retirement fund payments re-
quired by its contract with Local 245. Finally, in November
1972, the Union filed two lawsuits against Mutual to collect
approximately $44,000 in delinquent benefits payments.4 In
mid-December, Ronald Warczak asked Harry F. Spohn-
holtz, then president of Local 245, to withhold litigation
while Mutual endeavored to secure a loan to meet its obliga-
tion to the Union. Warczak, however, made no offer of full
or partial payment and because of Mutual's repeated fail-
ures to keep earlier promises of payment, the Union pro-
3 State also had a small branch office located in Indianapolis , Indiana.
4 Approximately $9,000 of this amount consisted of money owed to 32
employees from whom Mutual had withheld this amount from their pay-
checks as payment of the employees ' contribution to the Union 's pension
fund pursuant to the terms of the collective -bargaining agreement.
ceeded with its lawsuits.
In a letter dated January 31, 1973, and sent to all creditors
of Mutual, including the Union, S. T. Obuchowski, an
agent of the Chicago Midwest Credit Service Corporation,
gave notice that Mutual was going out of business and that
all of its assets had been assigned to one Bernard C. Chait-
man for the purpose of liquidating the assets and making a
pro rata distribution among the creditors.51n this letter,
Obuchowski explained that the closing was precipitated by
Mutual's substantial losses in the preceding 2 years and the
fact that it had "had extreme problems with the Union." In
a similar letter to the creditors of State, Obuchowski advised
the creditors of that Company that it, too, was closing and
that its assets would be sold for the benefit of creditors.
At the end of the day shift on January 29, 1973, Mutual
and State ceased operations. No advance notice of any kind
was given either to the employees or the Union. At the
hearing, as well as in their brief, the Respondents have
contended that Mutual was forced to close because a se-
cured creditor, Fred A. Gilford, Inc., instituted foreclosure
proceedings during the latter part of January. This, howev-
er, was not the reason which the management officials gave
to the employees on the day that Mutual closed. Employees
Joseph Alves, Mitchell Zielinsky, and Leland Zavadil testi-
fied that on hearing that the plant had closed that day they
sought to pick up their tools. On arrival at the building, they
encountered both Ronald Warczak and Al West. All three
testified that when they asked why the Company was going
out of business , West told them that it was the Union that
closed Mutual. According to Zielinsky, West told them that
the Company had asked for more time, but "the Union
wouldn't extend us any more time, we had made an attempt
to straighten things out but they closed our doors ...."
Alves and Zavadil testified that Warczak remained silent,
but nodded his head in agreement with West's response to
their question. Zielinsky further testified that Raymond
Haack told him that same day that "the Union had closed
the doors." Zavadil testified that Haack told him "Well, it's
your Union that closed it [the Company]." Alves, Zielinsky
and Zavadil were credible and their testimony was not de-
nied or contradicted by any witness for the Respondents.
Stanley Peszek, a pressman who had been with Mutual
many years, testified that at the end of his shift that day
Walter Stricula, the plant superintendent, announced to all
the employees that the Company was closing its doors, but
that thereafter Stricula privately told him "not to worry"
that "I might be called back in a couple of weeks because
the Company is planning to reopen." Peszek's testimony
was credible. It was also uncontradicted and undenied.
Ronald Warczak testified that Mutual's action in assign-
ing all its assets to Chaitman for the benefit of its creditors
was taken to ward off a foreclosure action which Fred A.
Gilford, Inc., one of its secured creditors, was about to take.
At the time Mutual was behind approximately $ 8,000 in its
payments to Gilford. Ronald Warczak testified that on the
advice of Jerome S. Wald, an authority on debtors' estates,
both Mutual and State elected to make an assignment for
benefit of creditors and to cease operations. In the letter to
'This was a voluntary action by Mutual. No creditor had filed a bankrupt-
cy petition.
MARQUIS PRINTING CORPORATION
the creditors which was referred to earlier it was announced
that a public sale of the assets would be held on February
13, 1973. Shortly before that date, Ronald Warczak solicited
Wald's advice as to how he himself could bid on the assets
of Mutual and State when they were put up for sale. Wald
assured him that this could be done, but that in order that
the creditors not be antagonized it would be best that
Warczak's participation not be revealed. Wald thereupon
proposed that he (Wald) be empowered to bid on Warczak's
behalf as a "nominee" so that it would be unnecessary to
disclose for whom he was acting. Wald suggested that in the
meantime Warczak raise $50,000 to effectuate such a pur-
chase.
Warczak testified that by February 9, he was unable to
raise the latter sum, but that he accumulated a total of
$35,000, $8,000 of which he secured by borrowning on his
life insurance and the balance of $27,000 as a loan from his
parents. On February 13, Warczak accompanied Wald to
the sale which was held in the offices of the Chicago Mid-
west Credit Service Corporation. Wald initially bid a total
of $25,000 for the assets of both Mutual and State. Several
other bids were made, but Chaitman rejected all of them as
too low. The other bidders then left, but Wald and Warczak
remained. At this point, Wald raised his bid to $35,000.
Chaitman accepted this bid and Wald thereby secured for
Ronald Warczak all of the assets of Mutual and State sub-
ject to existing liens and encumbrances, and according to
the bills of sale, the right to use the names "successor to
Mutual Lithograph Company" and "successor" to -State
Printing Company."
On February 16, Marquis Printing Corporation was
formed. Al Wald's suggestion, Emil Cernansky, a printing
broker for Consolidated Book Publishers, one of Mutual's
largest customers, was named as president of the new corpo-
ration. Wald testified that naming Cernansky to this post
was in keeping with his advice that Warczak appoint a
"figurehead president for a short time," in order not to
offend any creditors who had suffered losses at the hands
of the Warczaks. Although the stock was initially issued in
Cernansky's name , the Respondent acknowledged that Cer-
nansky provided no monies for the purchase of the assets
of Mutual and State and that at no time did he own any
stock in Marquis. Immediately after being issued the stock
in Marquis, Cernansky reassigned all of it to the Warczaks,
105 shares each to John and Viola, and 70 shares each to
Ronald and his sister Carol. Cernansky remained as presi-
dent for only a few weeks. On April 10, 1973, Ronald Warc-
zak became president, in name as well as fact, and
Raymond Haack became the treasurer of the newly formed
Marquis Printing Corporation.
On about February 22, Peggy A. Hillman, attorney for
the Union, telephoned Attorney Wald to inquire as to the
indentity of the incorporators of the new company which
was to operate the premises formerly held by Mutual and
State. According to Hillman, Wald gave her the following
information: he had purchased the assets of Mutual at a
6 Subsequent to the sale, all arrearages owing to the Gilford Company,
allegedly the creditor that brought on Mutual's financial crisis, were paid in
full and its prior security agreements and loans were continued in effect with
Marquis.
397
public sale for $35,000; that in so doing he had acted as the
nominee for Emil Cernansky; and that a new company
named Marquis Printing Corporation had been formed of
which Cernansky was the president as well as owner of 100
percent of the stock. Wald told her that the incorporators
were Cernansky, Wald, and Katherine Sikora, the latter
being his secretary. Hillman testified that she specifically
asked Wald whether Ronald Warczak, Al West, or any of
the other Warczaks had any role in the new corporation and
that he had no knowledge of any such involvement on their
part. According to Hillman, Wald also told her that he had
no knowledge as to the source of the $35,000 which was used
to purchase the assets of the debtor corporations.
Attorney Wald corroborated much of the foregoing testi-
mony as to the background information supplied to Hill-
man at this time. He testified that he told her that all of the
stock in Marquis had been issued in the name of Emil
Cernansky. He acknowledged that he did not tell Hillman
that Cernansky was the nominee for Ronald Warczak and
he conceded that he did not disclose to her the source of the
money used to purchase the assets of Mutual and State. He
further testified, however, that he thought that he told her
that Ronald Warczak was one of the directors of the new
corporation.
Hillman, as noted, above, testified to the contrary. In
view of Wald's advice to Ronald Warczak about the neces-
sity of having a nominee act for him in order to conceal
Warczak's participation, it does not appear likely that only
a few days after the sale, upon being interrogated by counsel
for the Union, he himself would have disclosed, voluntarily,
Warczak's role in the proceeding. Consequently, insofar as
there are any conflicts in the testimony of Hillman and
Wald, it is my conclusion that Hillman's account was the
more accurate.
In a letter dated February 27, 1973, George C. Evert, vice
president of Local 245, informed Marquis that the employ-
ees covered by the collective-bargaining agreement at Mu-
tual were available for work at Marquis and that the Union
felt that they were legally entitled to continued employment
at the Wells Street plant. The letter closed with a request for
a meeting to discuss arrangements whereby the Mutual em-
ployees might return to work and, as Evert stated, "to dis-
cuss other aspects of what we hope and expect will continue
to be a fruitful and harmonious collective-bargaining rela-
tionship." Neither Marquis nor Warczak ever responded to
Evert's letter.
The General Counsel and the Union contend that Mar-
quis' operation is substantially the same as that formerly
conducted by Mutual at the Wells Street plant. This conten-
tion is supported by the record. Marquis is engaged in com-
mercial printing and lithographic production work just as
was Mutual until its demise. During the period from Febru-
ary through October 1973, Marquis used most of the sup-
pliers on which Mutual formerly relied. During the same
period Marquis had 172 customers, only 27, or 16 percent,
of which constituted new business. Of the remainder, 145,
or approximately 84 percent, were former customers of Mu-
tual. It is significant that of these 172 customers, only one,
Western Electric, was a customer of State. During the peri-
od from February through October, Marquis billed Western
Electric for approximately $4,300 worth of work, an amount
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that was about 1 percent of Marquis' total volume of busi-
ness.7
After its purchase of the assets of Mutual and State, Mar-
quis proceeded to operate their equipment on the same
floors of the Warczak family owned Wells Street building
as had the predecessor corporations. Nothing was moved.
Mutual's name remained on the water tower and over the
dock doors in the alley. The corporate offices remained on
the first floor. The telephone numbers remained the same
for Marquis as they had been for Mutual and State. Old
Mutual order tickets were used until the supply was ex-
hausted and for several months after the changeover Mutu-
al envelopes were used for employee paychecks.
On a portion of the second floor State had had several
multilith presses and its own bindery equipment. The rest
of that floor was occupied by Mutual's web press section.
After Marquis took over, the old State Printing equipment
became part of the new operation and one more multilith
roll fed press was added. At the other end of the floor, where
Mutual had had its own web press section, Marquis made
no changes other than the addition of a baler which was
operated by a packer (or floor boy). Mutual had had its
preparatory department on the fourth floor. After Marquis
began operations, all the equipment there continued to be
used as previously for development, stripping, platemaking,
and job layout.'
Mutual had had several large presses on the fifth floor.
Before it closed, Mutual was only using what were known
as the Harris 29-inch presses. An LSS press was used occa-
sionally but a Mann Perfector was not. Ronald Warczak
testified that after Marquis took over it used the Harris
presses and the LSS as had Mutual, but that the Mann
Perfector remained idle. Marquis continued to use the base-
ment and the seventh floor of the building for storage, pre-
cisely as Mutual had used those levels.
Leland Zavadil, who had been a foreman for Mutual and
was subsequently hired by Ronald Warczak to act in the
same capacity for Marquis, testified that Marquis is the
same operation as Mutual "only on a smaller scale." 9
Marquis recalled two of the key supervisory personnel
who had worked for Mutual. Walter Stricula, plant superin-
tendent for Mutual in its closing days,10 was hired for the
same post with Marquis. Similarly, Leland Zavadil, web
press foreman for Mutual, was hired for the same job with
Marquis. Both Marquis and Mutual use the same classifica-
tions of employees, such as web pressmen, helpers, feeders,
sheet fed pressmen, cutters, plateroom employees, and
packers.
More significantly, the day-to-day management of Mar-
quis is dominated by the Warczak family in the same fash-
ion as had been the situation at both Mutual and State. John
7 Marquis had total sales for this period of approximately $390,000.8 Ronald Warczak testified that one of the cameras in the preparatory
department was not used by Marquis. However, Foreman James Arger credi-
bly testified that the nonuse of this camera was due to the fact that a lens
was missing.
9 Except for the specific reference to the testimony of Ronald Warczak, the
findings in the three preceding paragraphs are from the credible testimony
of Leland Zavadil and James Arger.
10 Clarence Haack, long-time plant superintendent from Mutual , retired
early in January 1973.
and Viola Warczak share the same office on the first floor
as they had previously. Viola operates the switchboard,
writes orders and frequently assists on bindery work such as
collating, folding, and cutting. These were the same func-
tions she performed at Mutual. At Mutual, Al West, hus-
band of Carol Warczak West and brother-in-law of Ronald
Warczak, was the comptroller and office manager . Ronald
Warczak testified that at Marquis, West was only a sales-
man on a commission basis . From the credible testimony of
James Arger, a foreman at Marquis, however, it is apparent
that whatever West's new duties may include he still has
authority to act on payroll matters , keep track of employees'
time , write checks, and make adjustments on employees'
timecards . According to Arger, in his experience while at
Marquis, West took care of payroll questions "almost week-
Raymond Haack, brother of Viola Warczak, had been
the superintendent of State Printing. He was also on State's
board of directors with Ronald Warczak and Carol West,
his nephew and niece, and along with the latter two held all
the stock in that corporation. Ronald Warczak testified that
when State Printing was in existence, Haack's supervisory
authority was limited to the employees of that company.
This testimony, however, was contradicted by that of sever-
al other witnesses. Thus, Dominic Belmonte , a general fore-
man at Mutual, credibly testified that whereas Raymond
Haack's primary responsibility was with State Printing,
Haack frequently gave orders to the employees working for
Mutual and, on occasion, reprimanded Mutual employees.
Similarly, Lee Zavadil, a foreman at Mutual during this
period, testified as to a number of instances when Raymond
Haack worked on jobs for Mutual. From the second it is
evident and I find that Haack's authority in the pre-Marquis
period was not confined merely to employees of State Print-
ing, but as a member of the Warczak-Haack group he was
in a position to, and did, exercise supervision over employ-
ees of Mutual as well. After Marquis was organized, Haack
became the plant manager . Ronald Warczak testified that
when he is not at the plant Haack is in charge . In the new
corporation Haack is also responsible for the multilith de-
partment on the second floor, the section which formerly
had been operated as State Printing. Finally, Florence Platt,
sister of Viola Warczak, now works at Marquis on bindery
duties, such as cutting, folding, and packaging, the same as
she had worked previously at Mutual.
More significantly, with respect to the question of con-
trol, is the part played by Ronald Warczak in the Marquis
organization as compared with the role which he held in
Mutual. At the trial, he testified that in the Mutual corpo-
rate structure his mother was the dominant voice and that
he acted only pursuant to her orders. As to Marquis, on the
other hand, he claimed that he is in complete control and
is the only stockholder. The facts do not support his testimo-
ny as to his position in either organization.
There were many witnesses who testified that for several
years prior to the time that Mutual ceased operations, Ron-
ald Warczak was, in fact, operating head of that corpora-
tion. Harry Spohnholtz testified that in 1970, when he was
president of the Union, Al West told him that John Warc-
zak was no longer active in the company, and that Ronald
Warczak was in charge. George Gunderson, who was vice
MARQUIS PRINTING CORPORATION 399
president of the Union during this period, testified that
when he complained to West, the comptroller of Mutual,
that the company was not meeting its financial obligations
to the Union, West told him to talk with Ronald Warczak,
that "he [Ronald] controls the purse strings . . ." Gunder-
son further testified that whereas he had done business with
the officers of Mutual since 1960 and in the early period
frequently met with John Warczak and Clarence Haack, the
latter being the plant superintendent, he had never had any
contact with Viola Warczak. Dominic Belmonte testified
that when he was promoted to general foreman at Mutual
during the mid-1960s, Ronald Warczak called a meeting of
the employees at which he told them that henceforth all
orders would come from either him or Belmonte and that
they would no longer receive orders from John Warczak.
Belmonte further testified that he regularly took orders from
Ronald on job flow and scheduling of orders, on the layoff
and discharge of employees and on all phases of the plant
operation. According to Belmonte, whereas he also received
instructions from Clarence Haack, plant superintendent for
Mutual, and from Raymond Haack, the superintendent of
State Printing, when any of their orders conflicted with
those from Ronald, the instructions of the latter would su-
persede those issued by anyone else in the plant. In Decem-
ber 1972 and January 1973, Ronald Warczak was the
corporate representative who met with the union officials
who were on the verge of instituting litigation to secure
payment on Mutual's delinquent account. He also repre-
sented Mutual in all subsequent meetings with officials of
Fred A. Gilford, Inc., the creditor corporation, and with
Attorney Wald, during the negotiation of the assignment for
benefit of creditors. Ronald Warczak acknowledged that his
mother did not attend any of these meetings.
At the time of the trial, Ronald Warczak was 41 years of
age. He testified that his office on the first floor of the
Mutual plant was larger than that occupied by his father or
by any other official. His mother did not appear to have any
office, but merely shared the one assigned to her husband
when she was not engaged in operating the switchboard,
working in the bindery, or performing other odd jobs about
the plant. Viola Warczak did not appear at the hearing or
give any testimony. In view of the above findings, I con-
clude that, contrary to the assertion of Ronald Warczak, at
all times material herein it was Ronald Warczak, and not his
mother, who was the effective operating head of Mutual and
the dominant figure in the Warczak family's corporate in-
terests prior to the time when Mutual and State ceased
operations.
In contrast with his testimony that tended to give him a
subordinate role in Mutual, Ronald Warczak testified that
as to Marquis "I am in charge of the stock and I make my
own decisions." According to Warczak, there are no share-
holders other than himself and no stockholders meetings
have been held since the original meeting at which the Mar-
quis Printing Corporation was organized. At the hearing,
however, the Respondents stipulated that of the 350 shares
of Marquis stock outstanding, 105 had been issued to John
Warczak, 105 to Viola Warczak, and 70 each to Ronald
Warczak and Carol West. The Respondents further stipu-
lated that all stock certificates of Marquis and all assign-
ments of said stock appear as set forth in the exhibit file of
the instant case. Although, as noted earlier, Ronald Warc-
zak testified that he was the sole stockholder in Marquis, he
further testified that upon getting the $27,000 loan from his
parents to purchase the assets of Mutual and State he
pledged his stock as collateral for the loan, but retained the
voting rights. Apart from the fact that his testimony was
somewhat implausible, there is no evidence of such an
agreement on the face of any of the stock certificates which
appear in the exhibit file. According to the latter exhibits,
John and Viola Warczak still have 105 shares each, Carol
West has 70 shares, and Ronald Warczak a like number.
Consequently, it would appear that in Marquis, as in Mutu-
al, Ronald shared ownership with his father, mother, and
sister.'
On the other hand, Ronald Warczak was obviously clear-
ly the principal corporate figure at Marquis and in control
of the day-to-day operations of the plant. On the basis of
the facts found earlier herein, this was substantially the
same role which Ronald Warczak played in the manage-
ment of Mutual for a period of several years prior to the
date when the latter ceased operations.
B. Mutual 's Relations with the Union;
the Open Shop Policy of Marquis
As noted earlier , Mutual had had collective -bargaining
relations with the Union for almost 13 years. In the latter
part of this period, however , Mutual 's continued delinquen-
cies in meeting its payments to the Union 's benefit program
had given rise to much friction . In addition, during the
summer and fall of 1972, several of Mutual 's management
expressed dissatisfaction with the high level of the pay scale
which the union contract imposed upon the company. Do-
minic Belmonte credibly testified that in a conversation
with Clarence Haack , the plant superintendent , during the
summer of 1972, Haack stated that he would be willing to
pay $50 over the current scale "if we could oust the
Union ." 12 Leland Zavadil , who was the shop steward for
his coworkers at the time, testified that on several occasions
during this period , Al West, Mutual 's comptroller, com-
plained that "the union employees were being paid too
much , and that it was hard for [the Company] to be compet-
itive in [its] bidding." 13 In the latter part of the summer
many of the employees were concerned about their pay-
checks being returned by the Company' s bank for insuffi-
cient funds. Joseph Alves , an apprentice pressman at the
11 At the bottom of the $27,000 note to his parents, there appears the
typewritten statement:
This note is secured by the stock of Marquis Printing Corporation and
will revert back to Ronald Warczak upon payment in full of this note.
Ronald Warczak testified that he himself typed this notation on the instru-
ment. The "stock" referred to in the foregoing is not defined. It may refer
to the 70 shares of Marquis held by Ronald Warczak, but the language
certainly has no reference to the 70 shares held by his sister Carol West or
the 210 shares held by his parents. In any event, from the documentary
evidence in the record it is clear that, at the most , Ronald Warczak had no
more than 70 shares to offer as collateral for the $27,000 loan.
12 The quotation is from Belmonte's credible testimony.
13 The quotation is from Zavadil's credible testimony which was neither
denied or contradicted . West did not appear as a witness.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time, testified that when he complained to West about the
bouncing checks, West told him and a coworker that the
Company's financial problems arose because "Union wages
were too high" and that the Company "was being overbid
for jobs" because of the Union wage scale. 14
As found earlier, in December 1972, the Union instituted
two lawsuits against Mutual. The first was to collect approx-
imately $35,000 owed by Mutual to the Union's health,
welfare, and retirement funds. The second was to collect
over $9,000, withheld from employee wages for payment of
their contributions pursuant to the collective-bargaining
contract which Mutual had never forwarded to the Lithog-
raphers Pension Fund. On December 14, Ronald Warczak
met with Union President Spohnholtz to urge that the
Union not press its litigation because the Company was
attempting to secure a loan. Warczak's plea, however, was
unaccompanied by any specific promise of repayment and
Spohnholtz declined his request. On January 5, 1973,"
Mutual's attorney requested an extension of time for filing
its answer to the litigation and stated that Mutual had ar-
ranged to pay $30,000 to the Union on January 26 and the
balance of approximately $15,000 by February 12. On the
basis of this representation, the Union agreed to an exten-
sion of time for Mutual to file its answer until the latter date.
Mutual never fulfilled this commitment to the Union. In-
deed, it appears from the testimony of Attorney Jerome S.
Wald that Frank L. Winter, attorney from Mutual in that
litigation, told Wald that because of the Company's failure
to keep its promise to pay the Union $30,000 by January 26,
his law firm had withdrawn as counsel. 16
By the latter date, however, Ronald Warczak had sub-
stantially completed arrangements to make an assignment
of the assets of both Mutual and State for the benefit of
creditors. In his letter of January 31 to the creditors, Obu-
chowski, agent for the assignee, would be stating that the
assignment resulted from Mutual's losses and because Mu-
tual had "had extreme problems with the Union."
On January 29, the employees were told that Mutual was
closing its doors. When making this announcement to the
day shift, Plant Superintendent Stricula also told Stanley
Peszek and several of the older employees "not to worry"
that they might be called back to work "in a couple of weeks
because the company is planning to reopen." In other con-
versations that day, management officials attributed the
demise of Mutual to the Union rather than to the demands
of the Gilford Company or any of its other creditors. As
found earlier, Raymond Haack told employees Zavadil and
Alves that the "Union had closed the doors." Similarly, later
that day, Al West, while in the presence of Ronald Warczak,
told Zavadil and several other employees "Well, it's your
Union that closed [the Company]."
Marquis was incorporated on February 16. The next
week Walter Stricula was hired as the plant superintendent.
14 The quotation is from Alves' credible testimony which was undenied
and uncontradicted . It was also corroborated by Mitchell Zielinski, a co-
worker, who was present during the conversation with West.
15
All dates that appear hereinafter are for the year 1973, unless specifically
noted otherwise.
16
Wald testified that during his conversation with Winter the latter con-
ceded that the money was owing to the Union as alleged in the lawsuit and
that there was no valid defense that he could interpose.
Ronald Warczak testified that Stricula happened to be in
the neighborhood of the plant during this period and that,
presumptively, largely by happenstance, Stricula was hired.
A more likely explanation would appear to be that Stricula
was recalled by Warczak as part of a preconceived plan
since Stricula himself had predicted to Peszek on January
29, "in a couple of weeks . . . the company is planning to
reopen."
As found earlier, the Union's subsequent request that
Marquis meet with it and that the employees of Mutual be
reemployed was ignored. Those employees of Mutual who
individually sought employment at Marquis were told that
the plant was being operated without the Union and as an
"open shop." James Arger, who was hired as a working
foreman during mid-May, credibly testified that when he
was hired Ronald Warczak questioned him as to whether he
belonged to a union and as to his feelings about unions in
general. Warczak could not recall whether he questioned
prospective employees as to their union affiliation, but he
acknowledged that he told all job applicants that Marquis
was an open shop. Warczak also endeavored to give those
who applied the impression that a completely new manage-
ment had taken over. Thus, Leland Zavadil testified that
late in February he telephoned the plant and told Ronald
Warczak of his interest in returning as a foreman. Accord-
ing to Zavadil's credible testimony, Warczak told him the
"Company was opening up again ... that Emil Cernansky
had bought it and that he (Ronald Warczak) was hired to
manage it ..." A few weeks later and before Zavadil was
hired, Warczak told him that he would have to check with
Cernansky on the amount that would be authorized for
Zavadil's salary and he again reinterated that "Cernansky
wanted the Company to be nonunion and to remain non-
union, that it was supposed to stay that way." [Emphasis
supplied.] The manner in which Warczak held out Cernan-
sky as the new owner was in sharp contrast with Warczak's
testimony at the hearing where he stated that at this point
he was in sole control of Marquis and that he was the
principal stockholder from the time of its incorporation.
The economic advantage to Marquis of operating an
open shop, in contrast to Mutual's union shop, are immedi-
ately evident from a brief review of the wages paid a repre-
sentative series of classifications.17 Thus, on the web press
at Marquis, a pressman earns $7 an hour, the web feeder,
$5.30 an hour, and the web helper, $4.75 an hour. At Mutual
under the uniion scale and according to the relevant provi-
sions of the current collective-bargaining agreement for the
period from May 1, 1972, to April 30, 1973, the web press-
man would receive over $8 an hour,18 the web feeder over
$6 an hour, and the web helper approximately $5.50 an
hour.
In addition to the difference in wage rates, the overtime
policy at Marquis is more restrictive and less expensive than
that at Mutual. The latter was on a 35-hour week of 5 days
with 7-hour shifts for the first and second shifts. The third,
or late night shift, was on a 30-hour week of 5 nights with
6-hour shifts. Overtime was paid at the rate of 1-1/2 times
17 As found earlier, the classifications of employees at Mutual and Marquis
are substantially the same.
18
Under the union contract the rate for a first pressman was $9.50 an hour
and for a second pressman $8.19.
MARQUIS PRINTING CORPORATION 401
the employee's hourly rate for the first 2 hours after the end
of his regular shift and 2 times his hourly rate thereafter.
Overtime on Saturdays and Sundays was straight double
time. In contrast, at Marquis the employees are paid over-
time only for work over 40 hours and then at only 1-1/2
times the regular rate, including overtime work on Satur-
days and Sundays. Finally, and of perhaps equal signifi-
cance to Marquis is the fact that under its nonunion policy
it has paid no money into any of the benefit funds of Local
245.
By the end of June, Marquis had hired approximately 45
new employees. Most of them were secured through news-
paper advertisements and, some, through an employment
agency. There had been about 20 employees in the unit at
Mutual when the plant closed on January 29. Only a very
few of these employees were hired by Marquis. Those who
were employed applied for work on an individual basis and
were taken on as new hires. Notwithstanding Marquis' cam-
paign for new employees conducted through newspaper ad-
vertisements and an employment agency, it never made any
response to the Union's application for reemployment on
behalf of all the members of the bargaining unit at Mutual.
During the 6 months after Marquis began operations it
hired a number of platemakers. John Belmonte had been a
platemaker at Mutual for 20 years. Ronald Warczak ac-
knowledged, however, that Belmonte was never recalled
and never even contacted.
C. Contentions of the Parties
The General Counsel and the Union contend that Mar-
quis is the alter ego of Mutual and that the operations of
Marquis are different from those of Mutual only in that
Marquis has unlawfully refused to reemploy Mutual's union
member employees, to recognize Local 245, and to assume
any obligations under the existing collective-bargaining
agreement.
The Respondent contends that Mutual was involuntarily
forced out of business by the Gilford foreclosure proceed-
ings, that it had no obligation to bargain about the decision
to close its operations (Textile Workers Union of America v.
Darlington Manufacturing Co., 380 U.S. 263 (1965) ), and
that, in any event, the Union never requested a meeting with
Mutual to discuss the matter.
D. The Alter Ego Issue
It is evident from the facts set forth above that at all times
material Ronald Warczak has been the dominant manage-
ment voice in the day-to-day operation of both Mutual and
Marquis. All the stock in both corporations has been closely
held by John Warczak, his wife, his children, and his in-
laws. The two corporations are substantially identical as to
stockholders as to stockholders, officers, directors, manage-
ment, operations, equipment, and customers. 19
19 It is of no significance that for a brief period Cernansky was the nominal
president of Marquis, since he had no stock and no financial stake in the new
company and was, as Wald, Respondent's attorney, frankly characterized
him, only a "figurehead" whose principal function was to conceal the true
nature of the Warczak family's control of the newly formed corporation.
Ronald Warczak asserted that whereas Mutual had been
a "trade shop" in that it dealt largely with other printing
firms, he proposed that Marquis would solicit more direct
accounts . This asserted objective , however , was not reflect-
ed in any significant change in the list of customers which
Marquis had as compared with those of Mutual . The effect
of such changes as were made in the Mutual organization
was aptly summarized by Leland Zavadil when he testified
that Marquis was the same operation as Mutual "only on
a smaller scale ." It is apparent , from the facts set forth
above , that Marquis was no more than "a disguised continu-
ance" of Mutual (Southport Petroleum Company v. N. L. R. B.,
315 U.S . 100, 106 ( 1942) ). Accordingly , I conclude and find
that Marquis Printing Corporation is the alter ego of, and
a successor to, Mutual Lithograph Co. 0 N.L.R.B . v. Ozark
Hardwood Company, 282 F .2d 1, 6-7 (C.A. 8, 1960); Schultz
Painting and Decorating Co., 202 NLRB 111 (1973); Associat-
ed Transport Co. of Texas, Inc., 194 NLRB 62, 63 (1971); J.
Howard Jenks, d/b/a Glendora Plumbing, 172 NLRB 1700,
1701-02 (1968); J. W. Rex Company, 115 NLRB 775, 776,
782-784 ( 1956), enfd . 243 F.2d 356 (C.A. 3, 1957); J. W.
Dickey, et al. d/b/a Ohio Hoist and Manufacturing Company,
108 NLRB 561, 562 , fn. 1 (1954), enf. 217 F .2d 652 (C.A.
6, 1954).
In their brief, the Respondents contend that the instant
situation is distinguishable from the conventional alter ego
cases because the successor here (Marquis) purchased the
assets from an independent third party (the assignee for
benefit of creditors ) who was not associated with, or in
control of, the predecessor (Mutual). This argument has
been rejected by the Board in other cases. In Interstate 65
Corporation d/b/a Continental Inn, 186 NLRB 248, 257-258
(1970), the Board stated (p. 248):
.. . despite the change in ownership from Pick to Re-
spondent , or the manner in which Respondent re-
gained control of the motel and thereafter operated it,
the employing industry has remained essentially the
same , and the Respondent , as Pick 's successor, is
bound to recognize and bargain with the Union and
honor the contract.
See also Valleydale Packers, Inc., of Bristol, 162 NLRB 1486,
1490 (1967), enfd. 402 F.2d 768 (C.A. 5, 1968), cert. denied
396 U.S. 825 (1969). In the latter case the Board held (p.
1490) that "It is not the form of the transfer which controls
but whether or not the employing industry remained essen-
tially the same." In the present situation, the employing
industry has, indeed, remained the same. Accordingly, it is
now found that Marquis as the alter ego and successor of
Mutual, was bound to assume the obligations imposed by
the collective-bargaining agreement which Mutual had with
Local 245.
20 Contrary to the assertion, urged by the Respondents both at the hearing
and in their brief, the Supreme Court decision in Darlington, supra, has no
application here. As appears from the facts found herein, this is not a case
where one employer (Mutual) went out of business permanently and never
resumed production. Rather, this is a case where an employer closed and
almost immediately thereafter resumed its former business at the same loca-
tion , with the same ownership, equipment, customers, management, and
control.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. The Alleged Violation of Section 8(a)(3);
Findings and Conclusions in Connection
Therewith
The Respondents contend that there was no illegal mo-
tive for Mutual's demise, but that it was brought about
because of the financial problems precipitated by the Gil-
ford foreclosure proceedings.
Both the General Counsel and the Union contend that
although Mutual may have had some financial difficulties
in the early part of 1973, it inspired, or at least welcomed,
the threat of the Gilford foreclosure. This was because, so
the argument runs, that development provided the War-
czaks with an excuse to arrange the hurried assignment for
the benefit of creditors, and thereafter, by incorporating
Marquis, eliminate the Union as employee representative
and avoid paying at least part of the approximately $45,000
which the Union claimed that Mutual owed in back pay-
ments to its benefit funds. There is substantial evidence for
the position of the General Counsel and the Union. Gilford,
as a secured creditor, emerged from the assignment pro-
ceedings with its security intact and permitted Marquis to
assume the obligation of paying off the loan which origi-
nally had been made to Mutual. The Union, however, was
one of the principal losers. 1
On the facts found earlier herein, it is evident that: (1) the
refusal of the Union to extend more time for the payment
of the accumulated arrearages to the benefit funds; (2) the
Union's pending lawsuits for which Mutual had no defense;
(3) the statements of company officials such as West and
Haack on January 29, that "the Union wouldn't extend us
any more time, . . . they closed our doors . . .," and Plant
Superintendent Stricula's forecast that "in a couple of weeks
... the Company is planning to reopen ...," (4) the failure
of Respondent's attorney to disclose to the Union's attorney
the involvement of the Warczak family in the purchase of
Mutual's assets and their control of Marquis; and (5) the
failure of Marquis to recall the employees of Mutual, all
compel the conclusion that the Union, and not Gilford, was
the primary cause for the closing of Mutual and that in
reopening as Marquis, the Respondents sought to avoid the
obligations and expense of the existing collective-bargain-
ing contract with the Union.
Even if there was a valid financial justification for the
closing of Mutual, that does not protect Marquis from the
consequences of having hired a completely new comple-
ment of employees and having failed to reemploy the mem-
bers of the bargaining unit at Mutual. Rushton & Mercier
Woodworking Co., Inc., and Rand & Co., Inc., 203 NLRB 123
(1973), is analogous to the present situation in many re-
spects. In that case there was no dispute about the necessity
21 In a final report to the creditors of Mutual , dated November 27, 1973,
and made by S. T. Obuchowski, as an agent for the assignee , Obuchowski
stated that after disbursements of approximately $54,000 , most of it for back
Federal and state taxes owed by Mutual, as well as payment of expenses in
administering the assignment, there remained less than $21 ,000 to cover
various disputed claims and nothing at all for the unsecured creditors.
Among the former, characterized by Obuchowski as "disputed" were claims
by the State of Illinois for unpaid occupational taxes in the amount of
$10,108.40 and personal property taxes of $11 ,953.22 and claims by the
Union for $48,548.60.
for the first company's shutdown and the layoff of all unit
employees. The question presented was whether the new
company, the alter ego of the first, could resume and contin-
ue the operations of the old without recalling the laid-off
employees. There, as here, the shift from the old company
to the new did not result in a real change of ownership, but
only in the elimination of a union. The Board stated that the
issue was not whether the first employer had a business
justification for the original closing, but whether the second
employer, the alter ego of the first, had adequate justifica-
tion for hiring new employees rather than recalling the em-
ployees laid off by the first.
In Rushton the Board found that the Respondents "failed
to recall employees who were capable of doing the work and
previously had worked at the plant on the very machines
which were now being put back into operation." (Ibid.) The
Board thereupon ordered the alter ego second employer to
recall the former employees, to recognize and bargain with
the union and to adopt the collective-bargaining agreement
which the first employer had negotiated. See also Helrose
Bindery, Inc., 204 NLRB 499 (1973).
In the light of these cases, I conclude and find that Mar-
quis was obligated to recall the former employees of Mutual
pursuant to the terms of the collective-bargaining agree-
ment with Local 245 which bound Mutual and, with equal
force, binds Marquis. As the Board stated in Rushton (citing
N.L.R.B. v. Great Dane Trailers, 388 U.S. 26 (1967) ):
It is obvious that Respondents' actions here were "in-
herently destructive of employee interests" in that the
natural effect of Respondent's failure to recall any of
the employees represented by Local 51 when they re-
sumed operations was to discourage membership in a
union. (Ibid.)
Mutual's employees were obviously capable of doing the
work involved, having worked at the plant on the very ma-
chines which Marquis put back into operation. Nor did the
Respondents raise any question as to the competence or
ability of the Mutual employees. 2 On the basis of the
Union's letter of February 27, 1973, it is clear that the
Mutual employees were available for work and requested
reemployment. In American Trailer & Equipment Corp., et
al., 151 NLRB 867 (1965), the Board stated (p. 879):
If a plant closes for economic reasons and the manager
later starts up exactly the same business, at the same
location, with the same equipment, and with many of
the same customers, it would seem that he would be
interested in hiring former employees.
In the present case, however, that is not what the Employer
did. Marquis not only did not recall the former employees
of Mutual. It went to great lengths to avoid doing so, relying
22 The Respondents did contend that Stanley Peszek, a pressman on a
Harris press, had left ink on the rollers at the time of his departure and had
thereby engaged in willful damage to the machine. Peszek credibly testified
that he had not committed any such act of vandalism. However, it is unneces-
sary to resolve this issue, because Peszek also testified that on reporting for
work on the day that the plant closed he gave notice that he was quitting his
job at the end of the shift. Consequently, he should not , under these circum-
stances, be included in any reinstatement order.
MARQUIS PRINTING CORPORATION
instead on newspaper advertisements, employment agen-
cies, and other stratagems to recruit an almost entirely new
work force.
In the summer and fall of 1972 Clarence Haack and Al
West, among the Mutual officials, attributed the
Company's troubles to the high wage scale required by its
contract with Local 245. At the time of Mutual's closing,
West declared to the employees that "it was your Union that
closed it" and Raymond Haack told them that "The Union
had closed [the Company's] doors." Thereafter, the use of
Cernansky as a figurehead president was obviously de-
signed to outwit the Union, rather than to deceive the cred-
itors. Whereas the latter purpose was purportedly the
objective, Marquis quickly resumed business relations with
most of Mutual's customers and was able to secure supplies
from the same sources as had its predecessor. Although
Ronald Warczak was admittedly in complete control of
Marquis, when Leland Zavadil sought reemployment,
Warczak told him that Cernansky was in charge, that Cer-
nansky had decreed an open shop and that any discussion
as to a salary for Zavadil would have to be cleared with
Cernansky.
It is evident from this background, and from the findings
as to the wages paid by Marquis, that the principal motiva-
tion for the Respondents' failure to recall the former em-
ployees of Mutual was that Marquis planned to rid itself of
the Union in order to pay lower wages than the union scale
and to effectuate other changes in the terms and conditions
of employment which would not be permitted by the provi-
sions of the contract which Mutual had with Local 245. The
desire to avoid recalling the union employees for these rea-
sons was obviously no adequate justification for Marquis'
action here. Consequently, I conclude and find that Mar-
quis, as the alter ego of Mutual, was required to reemploy
Mutual's employees when the plant reopened and that, in
failing to do so, Marquis violated Section 8(a)(3) and (1) of
the Act. Rushton & Mercier Woodworking Co., Inc., and
Rand & Co., Inc., 203 NLRB 123 (1973); Foodway of El Paso,
201 NLRB 933 (1973); K. B. & J. Young's Super Markets,
Inc. v. N.L.R.B., 377 F.2d 463, 465-467 (C.A. 9, 1967), cert.
denied 389 U.S. 841 (1967).23
F. The Alleged Violation of Section 8(a)(5);
Findings and Conclusions in Connection
Therewith
1. The appropriate bargaining unit
Since 1960, Mutual and the Union have been parties to
a series of collective-bargaining agreements wherein the
unit was described as "All lithographic production employ-
ees . . . employed at 717-723 South Wells Street, Chicago,
Illinois, excluding cutters, folders, floor boys, shipping and
receiving clerks, office clerical employees, truckdrivers, pro-
fessional employees, guards and supervisors as defined in
the Act." It is now found that this unit was appropriate for
23 This conclusion is unaffected by the fact that a few of the former Mutual
employees were given work by Marquis, since, in each instance these individ-
uals were hired as new employees, thereby losing all seniority and other
benefits which they had accrued at Mutual.
403
the purposes of collective bargaining at Mutual within the
meaning of Section 9(b) of the Act.
The General Counsel and the Union contend that the
same unit is appropriate at Marquis. This is denied by the
Respondents.
From the facts found above it is evident that Marquis is
engaged in the same business as Mutual. The job classifica-
tions at both are essentially the same. Marquis employs web
and sheet pressmen, helpers, feeders, cutters, plateroom em-
ployees, and floor boys just as Mutual had done. The same
classifications of employees are performing the same func-
tions at Marquis as at Mutual. The appropriateness of the
bargaining unit at Marquis is well established. Paramount
Press, Inc., 187 NLRB 586, 588 (1970); Lianco Container
Corp., 177 NLRB 907, 908 (1969); Sherwin-Williams Co.,
173 NLRB 316, 317 (1968); The Lord Baltimore Press, Inc.,
144 NLRB 1376, 1378-79 (1963).
The Respondents, however, contend that there has been
such a substantial change at Marquis that the unit above
described is no longer appropriate. They argue that the use
of the multilith presses formerly operated by State, the inter-
change of employees throughout the plant, the reduction of
some of the work in the preparatory department and the
exclusion of floor boys from the old unit make that unit
inappropriate to the operations at Marquis.
It does not appear that the addition of State's multilith
press renders the bargaining unit inappropriate at Marquis.
The operation of multilith presses requires no extra skills
not already possessed by web pressmen. Leland Zavadil, a
web pressman who also had experience operating a multilith
press, credibly testified that no more than 2 to 6 hours of
training was needed for adapting a web pressman to work
on a multilith. Moreover, multilith pressmen are traditional-
ly included by the Board in the standard lithographic pro-
duction unit. Bank of America, 174 NLRB 298, 300 (1969);
Standard Printing Co., Inc., 80 NLRB 338, 339 (1948); Fey
Publishing Co., 108 NLRB 1031, 1032, fn. 7 (1954).
At the hearing the Respondents endeavored to establish
that after Marquis commenced operations there was more
of an interchange of duties among employees in the unit.
However, there was evidence that a similar interchange of
work took place while Mutual was in operation. Pressmen
on the Harris presses on the fifth floor sometimes worked
on the web presses on the second floor. At both Mutual and
Marquis preparatory employees occasionally have worked
in the bindery performing such tasks as cutting and folding.
And at both companies pressmen have performed prepara-
tory work such as platemaking and bindery work such as
cutting and folding.
Throughout the 13-year history of the bargaining rela-
tionship at Mutual, floor boys, shippers, receivers, and bind-
ery employees were excluded from the unit. The
Respondents did not offer any evidence which would estab-
lish that the work of these employees had changed or that
would demonstrate that the unit which was appropriate for
so many years at Mutual had suddenly become inappropri-
ate for Marquis, the alter ego. Finally, the exclusion of floor
boys at Mutual was based upon the fact that their work
requires little or no training. Harry Spohnholtz credibly
testified that no training period is required for floor boys
(also known as packers, bundlers, or stackers). This was in
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contrast with the very extensive training required for others
in the unit . Journeymen pressmen , for example , must under-
go an 8-year training period, feeders 4 years , and helpers 2.21
On the basis of the foregoing considerations , I conclude
that there is no merit to the objections raised by Marquis to
the unit definition in the existing collective -bargaining con-
tract between Mutual and Local 245. Accordingly , the unit
described above and found appropriate for Mutual is now
found to be appropriate for the purposes of collective bar-
gaining at Marquis within the meaning of Section 9(b) of the
Act.
2. The majority issue
The Respondents also argue that the Union must prove
that it represents a majority of the employees in the unit.
The record, however, establishes that it does represent them.
The Union is a party to a still current contract. So far as the
employees are concerned, the unit has not changed. Since,
as has been found, Marquis is a successor to Mutual, the
Union, as the incumbent labor organization, is presumed to
retain its majority status. N.L.R.B. v. Auto Ventshade, Inc.,
276 F.2d 303, 305-307 (C.A. 5, 1960); West Suburban Trans-
it Lines, Inc., 158 NLRB 794, 800 (1966); Rohlik, Inc., 145
NLRB 1236, 1241-42 (1964).
3. Concluding findings
Ronald Warczak acknowledged that he did not notify the
Union of Mutual's closing and that he did not know of any.
other management official who had done so. As found earli-
er, the employees did not team of Mutual's closing until
January 29, 1973, the very day it occurred. It was from the
employees, and not the Company, that the Union learned
of what was then a fait accompli.
In their brief, the Respondents contend that there could
be no obligation to bargain about the closing because the
Union did not make a request for any such bargaining. In
fact, however, Mutual withheld from the Union all informa-
tion about its intention in this regard. Early in January,
counsel for Mutual promised that a $30,000 payment would
be made on the debt owed to Local 245 by January 26, and
that the remainder of the debt would be paid by February
12. Thereafter the Union heard nothing further from Mutu-
al. What information the Union secured about the closing
and the emergence of Marquis was gleaned from fragmen-
tary reports of its own members and the reluctant and care-
fully tailored answers which Ms. Hillman , its attorney,
managed to get from Wald, the Respondents' attorney. In
fact, the Union was kept unaware of the decision to close
Mutual. Later, information as to the Warczak connection
with Marquis was sedulously withheld from Local 245 and
its representatives. Under these circumstances, the Respon-
dents are not now in a position to contend that they were
not required to bargain because the Union did not make a
request for bargaining.
24 Although Marquis appeared to have more packers than were employed
at Mutual , Ronald Warczak conceded that several of those listed as packers
were, in fact , students who after a brief period of employment , quit, and
returned to school. Normally, students would be excluded from any unit.
Mutual was under an obligation to notify and bargain
with the Union over the effects of its decision to close the
plant. N.L.R.B. v. Royal Plating & Polishing Co., 350 F.2d
191, 196 (C.A. 3, 1965) 25 Even if the decision to close had
a solely economic motivation, Mutual was obligated to dis-
cuss the matter and its effect upon the employees with their
bargaining agent . Bell Storage and Warehouse, 174 NLRB
1267, 1270-71 (1969); American Trailer and Equipment
Corp., 151 NLRB 867, 882 (1965). Since this obligation was
ignored, Mutual's failure to contact the Union and afford
it an opportunity to bargain about the closing constituted
a violation of Section 8(a)(5) of the Act.
As the alter ego and successor to Mutual, Marquis was
obligated to continue the recognition accorded Local 245,
to adopt, honor and enforce the existing collective-bargain-
ing agreement , and to meet and bargain with the Union as
to any proposed changes in the terms and conditions of
employment. Notwithstanding these obligations, since Feb-
ruary 16, 1973, Marquis has ignored the Union and has
unilaterally changed existing wages, hours of employment,
seniority rights, and other terms and conditions of employ-
ment . Further, since the Union's letter of February 27, 1973,
wherein it requested an opportunity to discuss the recall of
Mutual's lithographic production employees, Marquis has
refused to meet with the Union for that or any other pur-
pose. By all of the foregoing conduct the Respondents have
engaged, and are engaging , in violations of Section 8(a)(5)
of the Act.
CONCLUSIONS OF LAW
1. Marquis Printing Corporation and Mutual Lithograph
Company are employers engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local 245, Graphic Arts International Union, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. All lithographic production employees employed by
the Respondents, or either of them, at the Wells Street plant,
Chicago, Illinois, excluding cutters, folders, floor boys, ship-
ping and receiving clerks, office clericals, professional em-
ployees, guards and supervisors, are a unit appropriate for
the purpose of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times relevant to this case, Local 245 has been
and is now the representative for the purpose of collective
bargaining of the employees in the unit described above
within the meaning of Section 9(a) of the Act.
5. By laying off Mutual's employees and closing its plant
on January 29, 1973, by reopening later as Marquis Printing
Corporation and thereafter refusing to recognize Local 245,
by refusing to adopt and honor the existing collective-bar-
gaining contract, refusing to recall the laid-off employees of
Mutual, and unilaterally changing existing wages , hours of
employment, seniority rights, and other terms and condi-
tions of employment all without notice to or bargaining with
25 See N. L. R. B. v. Rapid Bindery, Inc., 293 F.2d 170, 176 (C.A. 2, 1961),
where the court stated "conjecture or rumor is not an adequate substitute for
an employer's formal notice to a union of a vital change in working condi-
tions that had been decided upon ." See also N.L.R.B. v. Brown-Dunkin
Company 287 F.2d 17, 20 (C.A. 10, 1961).
MARQUIS PRINTING CORPORATION
Local 245 and all with the purpose of reducing costs by
getting rid of Local 245 as the representative of their em-
ployees, the Respondents have violated Section 8 (a)(1), (3),
and (5) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the-Act.
THE REMEDY
In order to effectuate the policies of the Act, it is neces-
sary that the Respondents be ordered to cease and desist
from the unfair labor practices found and to remedy them.
The Respondents' violations of Section 8(a)(3) require an
order that Marquis undo the effects of the discrimination
against the employees of Mutual by restoring, in so far as
possible, the situation that would have existed but for the
unfair labor practices. Golden State Bottling Co., Inc. v.
N.L.R.B., 414 U.S. 168 (1973). Accordingly, it is recom-
mended that the Respondents be ordered to offer immedi-
ate reinstatements to as many of the Mutual employees in
the unit represented by Local 245 who were laid off on
January 29, 1973, as Marquis now needs, discharging pre-
sent employees, if necessary, to make room for them. All
remaining employees in the unit represented by Local 245
who were laid off on January 29, 1973, must be placed on
a preferential hiring list. Which employees shall be offered
immediate reinstatement and which shall be placed on the
preferential hiring list can be determined in the compliance
stage. Further, the Respondents shall make whole all of the
aforesaid employees laid off on January 29, 1973. The
amount due each, as prescribed in F. W. Woolworth Compa-
ny, 90 NLRB 289 (1950), with interest as prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716 (1963), can be
determined in the compliance stage pursuant to the criteria
set forth above.
The General Counsel has requested that any reinstate-
ment order include both nonunit and unit employees, citing
Rushton & Mercier Woodworking Co., 203 NLRB 123 (1973).
Whereas it is true that in the latter case the Administrative
Law Judge held that the reinstatement order must include
both unit and nonunit employees, his ruling in this respect
was reversed by the Board. Ibid. Here, as in the Rushton
case, there is insufficient evidence to warrant a finding that
the nonunit employees were discriminated against when the
Respondents reopened the plant in February 1973 and
thereafter. Consequently, the General Counsel's request
must be denied and the reinstatement order will be limited
to those employees of Mutual Lithograph Company who
were represented by Local 245 at the time of their layoff.26
In view of the nature and extent of the unfair labor prac-
tices which the Respondents have committed, it is recom-
26 Although a list of all employees working for Mutual on January 29, 1973,
does appear in the exhibit file, this is not broken down as to unit and nonunit
employees . The identification of employees in the unit at the time in question
may be left for the compliance stage . Mention should be made of one individ-
ual, however; namely Stanley Peszek. As found earlier, Peszek credibly testi-
fied that on reporting for work on January 29, 1973, he notified the plant
superintendent that he was quitting his job at the end of his shift that day.
Under these circumstances , obviously Peszek's name does not come within
the scope of the present reinstatement order.
405
mended that the Respondents be ordered to cease and desist
from interfering in any manner with the rights of their em-
ployees to enjoy the statutory guarantees of self-organiza-
tion.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is issued the following recommended:
ORDER27
Marquis Printing Corporation and Mutual Lithograph
Company, their officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with Local 245,
Graphic Arts International Union, AFL-CIO, as the exclu-
sive collective-bargaining representative of their employees
in the unit found appropriate herein.
(b) Unilaterally changing the terms and conditions of
employment of their represented employees without bar-
gaining with their representative.
(c) Refusing to recall laid-off employees, hiring other
employees in order to get rid of the aforesaid Local 245, and
refusing to acknowledge that they are bound by the terms
of the collective-bargaining agreement in effect between the
Union and Mutual at the time Marquis purchased the assets
of Mutual.
(d) In any other manner interfering with, restraining, or
coercing their employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Bargain collectively with Local 245 by acknowledg-
ing that they are bound by the terms of the collective-bar-
gaining agreement in effect between the Union and Mutual
at the time Marquis purchased the assets of Mutual.
(b) Offer to employees of Mutual Lithograph Company
represented by Local 245 who were laid off on January 29,
1973, immediate and full reinstatement to their former jobs
in such numbers as are presently required by Marquis Print-
ing Corporation to operate the plant, or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
discharging, if necessary, the present employees of Marquis
Printing Corporation.
(c) Place on a preferential hiring list the names of any
employees of Mutual Lithograph Company represented by
Local 245 who were laid off on January 29, 1973, who are
not offered immediate and full reinstatement pursuant to
this recommended Order and, as vacancies occur, offer
them immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges.
(d) Make whole the employees of Mutual Lithograph
27 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec . 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings , conclusions , and order, and all objections thereto shall be deemed
waived for all purposes.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company represented by Local 245 who were laid off on
January 29, 1973, for any earnings they lost as a result of
the discrimination against them , plus 6-percent interest. Re-
voke the unilateral changes in wages, hours, and working
conditions instituted after February 16, 1973, and put into
effect the wages, hours, and working conditions set forth in
the collective-bargaining contract which Mutual had with
the Union at that time. Make whole the employees covered
by that contract for any loss of pay, plus 6-percent interest
per annum , which they may have suffered by reason of the
unilateral changes. Make such health and welfare payments
for the employees in the appropriate unit for whom they had
previously contributed and would have continued to contri-
bute had Marquis not abrogated the existing contract.
(e) Post at their plant in Chicago, Illinois , copies of the
attached notice marked "Appendix." 28 Copies of the no-
tice, on forms provided by the Regional Director for Region
13, after being duly signed by authorized representatives of
the Respondents, shall be posted immediately upon receipt
thereof, and be maintained for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondents to ensure that said notices are
not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondents have taken to comply herewith.
28 In the event the Board 's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."