Color Tech Corp.

476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Color Tech Corporation and Graphic Communica- tions International Union, Local 280. Case 20- CA-17167 30 September 1987 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 18 June 1984 Administrative Law Judge Wil- liam L. Schmidt issued the attached decision. The Respondent filed exceptions and a supporting brief, the Charging Party filed cross-exceptions, and the Respondent filed a response to the Charging Party's cross-exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,I and conclusions as modified and to adopt the recom- mended Order as modified. The judge found, and we agree, that the Re- spondent violated Section 8(a)(1) of the Act by so- liciting grievances, impliedly promising benefits, granting wage increases, and promoting and sup- porting the employee letter repudiating the Union. We further agree with the judge's issuance of a bargaining order. We disagree, however, with the judge's finding that Supervisor David Doss' conversation with em- ployee Jeffrey Ignatovich constituted an unlawful interrogation in violation of Section 8(a)(1) of the Act. Doss asked Ignatovich why the employees had gone to the Union and told him that they were the highest paid in the area and that it would be hard for them to get another job at their salary level. Contrary to the judge, we find this question- ing did not constitute an unlawful interrogation. The standard to determine whether an interroga- tion violates the Act is "whether under all the cir- cumstances the interrogation reasonably tends to restrain, coerce, or interfere with the rights guaran- teed by the Act."2 If Doss' question about the em- ployees' reason for going to the Union had been accompanied by a threat of reprisal for seeking the support of a union, we would have little difficulty ' The Respondent and the Charging Party have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 Rossmore House, 269 NLRB 1176, 1177 ( 1984), quoting Blue Flash Express, 109 NLRB 591 (1954), Sunnyvale Medical Clinic, 277 NLRB 1217 (1985) finding that the interrogation was coercive. But the General Counsel did not allege, nor did the judge specifically find, that Doss' reference to the diffi- culty of finding jobs elsewhere that paid as well was a threat of reprisal, nor do we believe that it would likely have been construed as a threat. It is common for employers responding to union cam- paigns to claim that they are offering the employ- ees better job benefits and conditions than employ- ees could obtain anywhere else and to express sur- prise that the employees should feel the need for a union. Doss' comment is a variant on this theme. Aside from that equivocal remark, Doss' question about why the employees had gone to the Union was not accompanied by any other words or con- duct even remotely susceptible to being character- ized as coercive. Moreover, when Ignatovich re- sponded that the Union had instructed him not to talk to anyone, Doss acquiesced and the matter was not discussed any further. Under these circum- stances, we find that the question would not rea- sonably tend to coerce employees in the exercise of their Section 7 rights,3 and we accordingly dismiss this allegation of the complaint. With respect to the remaining violations found and the recommended remedy, we reverse the judge's findings of 8(a)(5) violations, but we affirm his findings with respect to all violations of Section 8(a)(1) other than the interrogation discussed above, and we agree that a bargaining order is the appropriate remedy. We reverse the findings of 8(a)(5) violations- both the basic refusal-to-bargain and the unilateral change and direct-dealing allegations-because the Union failed to make a demand in an appropriate unit. Its 8 February demand to the Employer was for bargaining in a unit to which the photo techni- cians would be added as an accretion. We agree with the judge that an accretion is improper and that the photo technicians constitute a separate ap- propriate unit. Consequently, the Respondent did not refuse a request for bargaining in an appropri- ate unit. The absence of a proper demand, however, does not foreclose the propriety of a bargaining order as a remedy for the Respondent's serious unfair labor practices. Panchitos, 228 NLRB 136 (1977), enfd. 581 F.2d 204 (9th Cir. 1978); Peaker Run Coal Co., 228 NLRB 93 (1977). The unfair labor practices not only were of a type likely to undermine a union majority; they clearly destroyed the union majority here and precluded the conduct of an election that would be unaffected by unlawful con- duct. The appropriate remedy for such violations is s See Sunnyvale Medical Clinic, supra 286 NLRB No. 44 COLOR TECH CORP. 477 a bargaining order. NLRB v. Gissel Packing Co., 395 U.S. 575, 610-616 (1969). The Respondent's violations commenced with the meetings at which grievances were solicited and benefits were promised in order to discourage support for the Union; but the centerpiece of the case for a Gissel bargaining order is the grant of the wage increases in June. As the judge found, they were explicitly conditioned on the employees' abandonment of the Union and were clearly the motivating force behind the employee letter with- drawing support for the Union. Wage increases in particular have been recognized as having a poten- tial long-lasting effect, not only because of their significance to the employees, but also because the Board's traditional remedies do not require the Re- spondent to withdraw the benefits from the em- ployees. Red Barn System, 224 NLRB 1586 (1976), enfd. mem. 574 F.2d 315 (6th Cir. 1976). The Respondent's action of promoting and sup- porting the employee letter repudiating support for the Union also demonstrates the Respondent's de- termination to undermine the Union by unlawful means. It too is misconduct of a serious nature and has a lingering effect. The gravity of the Respondent's conduct is fur- ther underscored by the small size of the unit con- sisting of only four employees, all of Whom were directly affected by the Respondent's unfair labor practices, and the fact that the Respondent's presi- dent was a main actor in the unfair labor practices. That the Respondent succeeded in its unlawful campaign is demonstrated by the clear dissipation of union support following its unfair labor prac- tices. It is undisputed that three of the four unit employees signed union authorization cards on 16 January 1982. A few days after the unlawful wage increase all four unit employees signed a letter withdrawing support from the Union. This result amply evinces the effectiveness of the Respondent's course of conduct. For all the above reasons, we find that the in- hibitive effects of the unfair labor practices are likely to preclude a fair election despite the passage of time. Consequently, we are convinced, given the nature and extent of the Respondent's misconduct, that traditional remedies would be unlikely to dissi- pate the effects of the Respondent's actions. We therefore find, in agreement with the judge, that the employees' sentiment reflected by the valid au- thorization cards will be better protected, on bal- ance, by a bargaining order than the direction of an election.4 4 See Quality Aluminum Products, 278 NLRB 338, 339 (1986) (test for bargaining order is seventy of unfair labor piactices and likelihood that their lingering effects preclude holding of a fair election) See also NLRB With respect to our dissenting colleague's argu- ment that a bargaining order is precluded because the Union's demand for bargaining referred to an inappropriate unit, we note at the outset that the Respondent has made no such argument either to the judge or to us. The Respondent has simply contended that it did not commit the violations al- leged and that, in any event, such violations are not sufficiently serious to warrant imposition of a bargaining order.5 There is similarly no merit to our dissenting col- league's suggestion that we are failing to effectuate employee free choice by issuing a bargaining order in a unit that, although appropriate, is different from the one in which the Union originally re- quested bargaining. First, we note that the authori- zation cards signed by the photo technicians were not limited in any way that suggested they wanted to be represented by the Union only as part of the larger lithographic production unit that the Union already represented and not as a separate unit. Rather, the cards show simply that a majority of the photo technicians wanted to be represented by the Union for the purpose of collective bargaining. We are aware of no Gissel case in which the validi- ty of the union's majority turns on the existence vel non of proof that the employees were informed, prior to their having signed union cards, of the exact composition of the unit in which they might be represented if the union won a Board election or the employer chose to recognize the union on the basis of the cards. Our colleague's reliance on Hamilton Test Sys- tems, 743 F.2d 136 (2d Cir. 1984), and NLRB v. Lorimar Productions, 771 F.2d 1294 (9th Cir. 1985), is misplaced. In those cases, the courts feared that the results of Board elections might not represent the employees' actual choice because the units ulti- mately certified by the Board differed from the units in which the elections were conducted in ways that, under the circumstances, might have af- v Carlton's Market, 642 F 2d 350, 354 (9th Cir 1981) (factors include ex- tensiveness of violations, their past effect, likelihood of recurrence, and probability that a fair election can be held) The Respondent attached to its exceptions an affidavit of employee Jef- frey Ignatovich and a petition signed by six of the eight employees pres- ently in the unit stating that they do not wish to be represented by the Union and seeking an election to decide this issue According to the Re- spondent, these exhibits "demonstrate that the Respondent 's actions, even if unlawful, were not of a kind and extent that would preclude the hold- ing of a fair election " We disagree The fact that all four of the unit em- ployees who were subject to the Respondent's unlawful conduct remain in the Respondents employ, as well as the management officials responsi- ble for the violations , and that the Respondent's unfair labor practices have not been remedied , precludes any reliance on the petition that, under the circumstances , does not represent the uncoerced will of the unit employees S It is thus clear from the Respondent 's position in this proceeding that it is now futile, absent a Board bargaining order, for the Union to demand bargaining even in the unit found appropriate 478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fected the employees' decision to choose union rep- resentation . In both cases, the certifications resulted in a small unit of represented employees within a larger group of unrepresented employees, and the courts reasoned that the employees might have been averse to representation in the smaller units because the union would have less bargaining strength than it would have enjoyed in the larger unit in which the election was conducted, and be- cause divisiveness in the work force might arise as a result of some employees being represented and some not. Hamilton Test Systems, supra, 743 F.2d at 141; Lorimar Productions, supra, 771 F.2d at 1302. Here the Union already represented the lithogra- phy production employees, and the only question is whether it represents the photo technicians in that unit or as a separate unit.6 None of these dilemmas of determining employ- ee free choice would have arisen, of course, had the Respondent behaved lawfully. It had the right under the law to reject the Union's demand for bargaining in the larger, inappropriate unit; and under Summer & Co. v. NLRB, 419 U.S. 301 (1974), the Respondent could have declined to rec- ognize the Union even as the representative of the photo technicians in a separate unit, absent the demonstration of a majority in a Board election. Had it followed this lawful course, the employees would never have been coerced into abandoning the Union, and any expression of their sentiments, whether through the Board election or through a petition or letter like the one involved here, could have been accepted as a manifestation of their un- coerced choice. Instead, the Respondent chose a course of action for which, as Gissel teaches us, a bargaining order is the appropriate remedy. Accordingly, we find that the Respondent's un- lawful conduct may best be remedied by the impo- sition of a bargaining order. We conclude, in agree- ment with the judge, that the Respondent's bar- gaining obligation arose on the date on which Schreiner held the group meeting with the photo lab employees, as that meeting signaled the com- mencement of the unlawful course of conduct, and we shall order the Respondent to bargain with the Union, on request, concerning any term and condi- tion of employment, or change thereof, as to which it would have been required to bargain had the Union become the bargaining representative on that date.7 6 We note that the Respondent makes no claim that the separate photo technicians unit is inappropriate , See Panchito 's, 228 NLRB 136, 137 (1977) (bargaining obligation ap- plies to changes in terms and conditions of employment that occur after the employer embarked on its course of majority-destroying unfair labor practices) Accord NLRB v Daybreak Lodge Nursing Home, 585 F 2d 79, 82 (3d Cir 1978) ORDER The National Labor Relations Board orders that the Respondent, Color Tech Corporation, Red- wood City, California, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Soliciting employee grievances with an im- plicit promise to correct such grievances in order to discourage its employees from union activities, membership, and support. (b) Unilaterally granting wage increases in order to discourage its employees from union activities, membership, and support. (c) Promoting, supporting, and approving action by its employees to,withdraw from Graphic Com- munications International Union, Local 280. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, recognize and bargain with Graphic Communications International Union, Local 280, in the manner provided in this decision, as the exclusive representative of all the employees in the bargaining unit described below and, if an understanding is reached, on request, embody such understanding in a signed agreement: All photo technicians employed by Color Tech Corporation in its photo lab at its Red- wood City, California, facility; excluding all other employees, guards and supervisors as de- fined in the Act. (b) Post at its facility in Redwood City, Califor- nia, copies of the attached notice marked "Appen- dix."" Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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 " COLOR TECH CORP. 479 CHAIRMAN DOTSON, dissenting in part. I agree with my colleagues' adoption of the judge's findings that the Respondent violated Sec- tion 8(a)(1) of the Act by soliciting grievances, promising benefits, granting wage increases, and supporting the employee letter repudiating the Union. I further agree with my colleagues' dismis- sal of the complaint allegation that Supervisor David Doss' conversation with employee Jeffrey Ignatovich constituted an unlawful interrogation in violation of Section 8(a)(1) of the Act, and with the dismissal of the 8(a)(5) allegations. I disagree, however, with my colleagues' issuance of a bar- gaining order to remedy the violations found. I do not find that the unfair labor practices com- mitted by the Respondent are of such magnitude to necessitate the extraordinary remedy of a bargain- ing order. Although I would not classify the viola- tions committed by the Respondent as trivial, they are of neither a nature nor number that would impede a fair election. Specifically, the Respond- ent's soliciting of grievances, promise of benefits, wage increases, and its support for the employees' letter repudiating the Union are insufficient, in my opinion, to influence forever the employees' free choice if an election were conducted. There were no threats of reprisals or of plant closure and no unlawful discharges or layoffs. In sum, the Re- spondent did not threaten the employment status or the working conditions of the employees who sup- ported the Union. Although I recognize that the Respondent's conduct was directed at a small unit of employees, any lingering impact of the Respond- ent's violation may be dissipated by the Board's is- suance of cease-and-desist order and the posting of its notice specifying to employees the unfair labor practices committed by the Respondent and the Respondent's agreement to refrain from such con- duct in the future.' Neither the judge nor my col- leagues have adequately explained why a free and fair election could not be conducted after the Re- spondent's unfair labor practices have been reme- died. In addition, I find inappropriate the imposition of a bargaining order in the separate unit of the photo lab employees inasmuch as representation of a sepa- rate unit was never contemplated by the Union. At all times during its negotiations with the Respond- ent, the Union maintained the position that the photo lab employees should be accreted to the con- tractual bargaining unit, a demand that the Re- spondent lawfully refused.2 The Union never I Mariposa Press, 273 NLRB 528 (1984). 2 In agreement with my colleagues , and for the reasons stated by the judge in his decision, I find the accretion of the photo lab employees to the contractual unit to be inappropriate stated a desire or even intimated it wished to repre- sent the photo lab employees in a separate unit. To grant a bargaining order in these circumstances would impose on the Respondent the duty to bar- gain over a unit not even contemplated by the Union. Further, from the employees' standpoint there is no evidence that the employees expressed a desire to be represented in the smaller unit. The Union at all times told the employees they were to be in- cluded in the larger unit as the Union believed they were performing bargaining unit work. Conse- quently, issuing a bargaining order imposes on the employees the smaller unit without any indication that the employees desire or ever desired the Union's representation on this basis. Two recent court decisions offer some guidance in this regard. In Hamilton Test Systems, 743 F.2d 136 (2d Cir. 1984), denying enf. to 268 NLRB No. 175 (Feb. 27, 1984) (not reported in Board vol- umes), the Second Circuit invalidated a representa- tion election where the ultimate unit certified by the Board differed substantially in size and nature from the unit voted on by the employees. The court reasoned that the employees' free choice was impaired by their not knowing the eventual scope of the bargaining unit. Among the reasons articu- lated by the court to have affected the employees' vote were that: (1) the employees might have be- lieved that the smaller bargaining unit would pro- vide insufficient strength to justify union represen- tation; (2) the employees might have believed that representation by a union in only part of the facili- ty could produce divisiveness and undesirable ten- sions in the workplace; and (3) interpersonal rela- tionships within the plant might have made an indi- vidual employee comfortable with a facilitywide unit but might cause concern and distress over leadership in a smaller unit. Similarly, in NLRB v. Lorimar Productions, 771 F.2d 1294 (9th Cir. 1985), the Ninth Circuit, following the principles enunci- ated by the Second Circuit in Hamilton Test Sys- tems, invalidated a representation election where the Board held the election and impounded the bal- lots pending a determination by the Board of the appropriate unit. The court held that the Board's ballot impound procedure impaired the conduct of the election by misleading the voters as to the scope of the unit. The court stated that employees must be afforded the opportunity to cast informed votes on the unit certified. If these courts have refused to validate elections (the preferred method of demonstrating employee desires) where employees were not clearly afforded an opportunity to choose the bargaining unit in which they wished to be represented, it follows 480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that they would also refuse to enforce the extraor- dinary remedy of a bargaining order imposed by the Board without any indication of employee free choice regarding the size of the unit. In the ab- sence of any showing here that the employees wish to be represented in the smaller unit, I would not impose a bargaining order.3 Accordingly, for all the foregoing reasons, I would not grant a bargaining order in the present cases. 8 Indeed, from the evidence here, it appears that the affected employ- ees only contemplated representation in the overall unit, not the smaller grouping that the majority would impose. My colleagues miss the point that a Gissel order is designed only to protect employee choice, not to impose a union because the employer misbehaved WE WILL, on request, recognize and bargain concerning rates of pay, wages, hours, or other conditions of employment with Graphic Communi- cations International Union, Local 280 as the exclu- sive representative of all employees in the unit de- scribed above. COLOR TECH CORPORATION Kathleen D. Aure, Esq., for the General Counsel. Sam Holmes Esq. (Angell, Holmes & Lea), of San Fran- cisco, California, for the Respondent. David Rosenfeld, Esq. (Van Bourg, Allen, Weinberg & Roger), of San Francisco, California, for the Charging Party. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT solicit grievances from you under circumstances that imply that we are promising to correct such grievances in order to dissuade you from engaging in union activities. WE WILL NOT unilaterally grant wage increases in order to dissuade you from engaging in union activities. WE WILL NOT promote, support, or approve the preparation and circulation of any letter or other document wherein you seek to withdraw from Graphic Communications International Union, Local 280 or any other labor organization that you may join. WE WILL NOT refuse to bargain, on request, con- cerning rates of pay, wages, hours of employment, or other conditions of employment with Graphic Communications International Union, Local 280, as the exclusive representative of all employees in the following appropriate unit: All photo technicians employed by Color Tech Corporation in our photo lab at our Red- wood City, California, facility; excluding all other employees, guards and supervisors as de- fined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. DECISION STATEMENT OF THE CASE WILLIAM L. SCHMIDT, Administrative Law Judge. This matter was heard October 20, 1983, at San Francis- co, California. The proceeding is based on a charge filed June 11 , 1982,1 against Color Tech Corporation (the Re- spondent) by the Graphic Arts International Union, Local 280 (the Union)2 alleging that the Respondent vio- lated Section 8(a)(1) and (5) of the Act. Pursuant to that charge, the Regional Director for Region 20 of the Na- tional Labor Relations Board (the Board or NLRB) issued a complaint dated July 28, alleging that the Re- spondent violated Sections 8(a)(1) and (5) and 8(d) of the National Labor Relations Act (the Act). Thereafter, the Respondent filed a timely answer dated August 2 where- in it denied that it had engaged in the alleged unfair labor practices. On the entire record,a my observation of the demean- or of the witnesses, and my careful consideration of the posthearing briefs filed by the General Counsel and the Respondent and the oral argument presented on behalf of the Charging Party at the hearing, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a California corporation with an office and place of business in Redwood City, California, has been engaged in the business of providing lithographic preparatory services . During the 1981 calendar year, Re- spondent, in the conduct of its operations , purchased and received at its Redwood City facility goods and materi- als valued in excess of $50,000 directly from suppliers lo- cated outside the State of California . I find that Respond- ent has been, at all material times, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that it will effectuate the purposes of the Act for the Board to exercise its jurisdiction in the labor dispute involved here. I All dates refer to 1982 unless specified otherwise. 2 The name of the Union appears as amended at the hearing 3 Certain errors in the transcript have been noted and corrected. COLOR TECH CORP. 481 II. THE LABOR ORGANIZATION INVOLVED It is admitted that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Pleadings The complaint alleges that about January 16 a majori- ty of the photo technicians employed in the Respond- ent's photo lab designated and selected the Union as their representative for collective-bargaining purposes; that on February 8 the Union requested that the Re- spondent recognize it as the photo ]lab employees' repre- sentative by treating them as an accretion to an existing unit of lithographic production employees employed by members of the Printing Industries of Northern Califor- nia (the Association), including the Respondent, and rep- resented by the Union since 1978; and that since Febru- ary 8, 1982, the Respondent has refused to recognize the Union, as requested, in violation of Sections 8(a)(1) and (5) and 8(d) of the Act. The complaint also alleges that Respondent refused to bargain with the Union in good faith by promising em- ployees wage increases, soliciting employees' complaints and grievances, granting wage increases, soliciting em- ployees to revoke their authorization to have the Union represent them and bypassing the Union in dealing with employees concerning wages, hours, and other terms and conditions of employment in violation of Sections 8(a)(1) and (5) and 8(d) of the Act. Alternatively, the complaint alleges that the Respondent's independent violations of Section 8(a)(1) of the Act (including, certain allegedly un- lawful employee interrogations in addition to the other allegedly unlawful conduct noted above) were so serious and substantial as to warrant a remedial order requiring the Respondent to recognize and bargain with the Union effective February 8 in a separate unit limited to its photo technicians. The answer joins the issues raised by affirmatively al- leging that the Respondent has recognized and bargained with the Union as the representative of its lithographic production employees since 1970, but denies that its photo technicians are an accretion to the represented unit. More specifically, the answer alleges that its photo lab department in which Respondent's photo technicians are employed has been in existence for 7 years and that during that period "Local 280, with full knowledge of the existence of the department and of the work done therein did not assert that [the photo technicians] were covered by or subject to [the lithographic production employees] collective bargaining agreement." Although the answer denies that the photo technicians are an ac- cretion to the existing unit, it admits that the Respond- ent's photo technicians constitute a separate appropriate unit.4 Although the answer admits that the Union re- 4 Respondent's answer concerning the appropriateness of a separate photo technicians unit is qualified with phrases such as "will admit for the purpose of an election proceeding, if the Board will hold an elec- tion," and "if determined by the Board, would constitute a separate ap- propriate unit " Under Sec. 102 20 of the Board 's Rules and Regulations Respondent is required to file an answer containing an explicit admission, quested the Respondent to bargain with it as the repre- sentative of the photo technicians as an accretion to the lithographic production unit on February 8 and that it refused, it denies that a majority of those employees se- lected the Union to represent them or that the Union was the statutory representative of those employees either as an accretion to the larger unit or separately. The answer also denies that the Respondent engaged in the conduct alleged as unfair labor practices in the com- plaint and that a bargaining order remedy is required in this case. B. The Evidence 1. Background Respondent commenced operations in May 1970 as a litho prep house and executed an agreement with the Union applicable to its production employees. From that time until 1974, Respondent purchased photo composi- tion transparencies for use in its litho prep operations from speciality houses in Los Angeles, San Francisco, and Palo Alto. The transparencies produced by these suppliers were then utilized in Respondent's operations by its lithographers in the preparation of lithographic film. Where the customer provided properly sized mate- rial not requiring any composing work, the material was generally sent directly to the lithographers to commence the preparation of lithographic film. In 1974, Respondent opened its own photo lab for the purpose of making its own composed transparencies. Be- tween 1974 and 1981, the employee complement of this department grew from one to four employees. David Doss, the photo lab department manager, was originally hired in April 1981. It is admitted that Doss is a supervi- sor within the meaning of Section 2(11) of the Act. Until 1980, the photo lab work consisted primarily of producing composite transparencies from customer-pro- vided material utilizing standard photographic equipment and a hand-trimming, fitting, and gluing process. By pro- ducing its own transparent compositions, the Respondent naturally had a sizable reduction in its need for services from outside photo labs. There is no evidence that this inhouse photo lab work, by its inherent nature, had a measurable impact on the work of the lithographic pro- duction unit.5 And, from the inception of Respondent's photo lab, employees of that department were never uti- lized to perform any work traditionally performed by Respondent's lithographers, or vice versa. The evidence shows that the Union was aware of the existence of Respondent's photo lab department long denial, or explanation of each complaint allegation The General Coun- sel's allegation concerning the appropriateness of a separate photo techni- cians unit is straightforward and explicit requiring a similar type of ad- mission, denial , or explanation The appropriateness of the unit alleged in the complaint is in no way dependent on whether the proceeding is for purposes of an election under Sec 9, or as here, pursuant to Sec 10 of the Act Accordingly, I find that the Respondent's qualified admission is not an explanation cognizable within the meaning of Sec 102 20, and deem the answer as an admission that a separate photo technicians unit is appropriate 6 This is not to say that by adding the photo lab service, the Respond- ent did not attract added work for its litho prep operations from other houses that do not offer the photo lab service • 482 DECISI®NS OF THE NATIONAL LABOR RELATIONS BOARD before the events giving rise to this case occurred, albeit it regarded the Respondent's conduct of the photo lab operation to be "secretive" apparently because the photo lab operations were conducted in an area entirely sepa- rate from the lithographic production employees. There is no evidence that the Union ever sought to claim the photo lab work at the various times when it negotiated the successive collective-bargaining agreements or that it ever complained of any interference with unit work by the photo lab employees. Indeed, the Union does not normally represent photo lab employees. In October 1980, the Respondent purchased and in- stalled in its photo lab a device known as a computerized lowbed composing camera (computer camera). The com- puter camera is a significant advancement because of both the range of work it is capable of performing and the enhanced quality of the final product, namely, the composite transparencies. Thus, the computer camera is capable of producing a duplicate composite transparency from a variety of elements at the proper size and in the proper position thereby eliminating the slower hand-trim- ming and gluing process. In addition, color and shadow variations can be controlled or altered on the computer camera to produce a more eye-pleasing result. Equally important from the customer's point of view is the fact that the higher quality computer-composed transparency can be produced from several different pieces of art work and/or transparencies at a substantially reduced cost over the hand-composed transparency and at an even more substantial savings over the scanning and stripping composing method that the lithographers are capable of performing. Respondent's new technology was housed in its photo lab department and was operated solely by photo lab em- ployees. Respondent continued to assign jobs on the basis of a determination of the method that would produce the best results for customer needs at the lowest cost. Ber- nard Schreiner, Respondent's president, testified without contradiction that the type of jobs assigned directly to the lithographers has not been affected by the purchase and operation of the computer camera because composite preparation work has never been assigned to the litho- graphic employees. 2. The union organizing effort In January, photo lab employee David Dissinger con- tacted Hans Hammann, a union organizer, to learn what the Union could do for the photo lab employees if they selected the Union as their representative. Dissinger said the photo technicians became interested in union repre- sentation because of "a slight disgruntlement in the divi- sion . . . ." Hammann invited the photo lab employees to come to the union hall on Saturday, January 16, to discuss union representation. Dissinger and two other photo lab employees, Jeffrey Ignatovich and Gary Hess, accepted the invitation and went to the union hall in San Francisco where they first met with Hammann and later Union President Raymond Pappert. All three employees (a majority of Respondent's photo lab employee comple- ment) signed union authorization cards. 6 In the course of the meeting, the employees described their work to Hammann because he was not familiar with the computer camera. After listening to their expla- nation, Hammann expressed his conclusion that they were, in effect, performing the work of unit strippers. Hammann testified that from the explanation he received this particular camera photo composes negatives to a larger transparency, which would then be used for the scanning process and eliminating the need for having many separate scans, thereby saving substantial sums of money for the company. However, Hammann, an experi- enced lithographer, acknowledged on further examina- tion that he was not familiar with the specific work per- formed by the scanners and strippers at Respondent's shop either before or after the installation of the comput- erized camera. When Hammann explained the photo lab employees' work to Pappert, he agreed with Hammann's conclusion. By a letter dated February 8, Pappert advised Schreiner that the photo lab employees had joined the Union. The letter also asserted that: "It is the union's po- sition that they should come under . . . the current col- lective bargaining agreement." Pappert's letter requests that the photo lab employees be classified as scanner op- erators and paid at the rate of $18.21 per straight-time hour.? In addition, Pappert's letter informed Schreiner that the photo lab employees would be added to the pen- sion and health care billing beginning in February. Shortly after the Union wrote the Respondent de- manding recognition, Doss asked Ignatovich why the employees had gone to the Union. In the course of the conversation Doss also told Ignatovich that they were the highest paid photo lab technicians in the area and that it would be hard for them to get a job in the area at the same salary level.8 When Schreiner failed to respond to Pappert's letter, Pappert telephoned Herbert Riley, the Association's ex- ecutive director, requesting a meeting concerning Re- spondent's photo lab employees. The first occasion the parties were able to meet about the photo lab was March 23. The meeting was held at the Association's office. Present for the Respondent were Riley and Schreiner; present for the Union were Pappert 6 t The authoriza ion cards of Dissinger and Hess were properly identi- fied and received in evidence at the hearing Ignatovich identified and authenticated an authorization card that he executed but the transcript and my notes reflect that it was not offered or received in evidence On May 25, 1984, I issued an order to show cause why G C. Exh 7 (the number contained on the exhibit) or 7(a) (the number used in the tran- script)-the authorization card of Ignatovich-should not be received in evidence nunc pro tunc That order was made returnable by close of business Monday, June 4, 1984 No response was received from any party to the proceeding There being no response, and it appearing that the fail- ure to offer Ignatovich 's authorization card was an inadvertent oversight, the noted exhibit is received As another exhibit was denoted in the tran- script as G C Exh 7(b), the designation of Ignatovich's authorization card is hereby denoted G.C Exh 7(a) For most photo lab employees, compliance with this demand would result in a base hourly rate increase in the range of 100 percent. 8 Although this testimony was elicited from Ignatovich by means of leading questions, Doss was never asked about the incident and, hence, it is uncontradicted COLOR TECH CORP. 483 and Hammann. Schreiner brought an exemplar of the photo lab work and argued that it was not bargaining unit work but Pappert would not be convinced. Riley took the position that the Respondent would never agree to include the photo lab in the existing unit, that it would go to the NLRB for an election first. Near the conclu- sion of the meeting, Pappert and Schreiner discussed the hourly rate the Union requested in the February 8 letter as well as other rates. Schreiner told Pappert that Riley and he would take the matter under advisement, and an- other date would then be set to meet with the Union. 3. Respondent's meeting wilh employees In April or May, Schreiner met with the four photo lab employees, the department supervisor, David Doss, and the plant manager, George Nida.9 As the lab em- ployees are assigned to different shifts around the clock, there had never been a group meeting with management before. The General Counsel argues that the Union's "lawful and proper role" as an employee representative was undermined by the Respondent's conduct at this meeting and during the period shortly after. Ignatovich, who has worked in the lab since August 1981, testified that Schreiner "basically wanted to know if we were having some problems, would we please relate to him what some of these problems were." Igna- tovich further testified that Schreiner also said that he had received "a letter from the Union stating that [we] had applied for membership, and he just wanted to know what was going on." Ignatovich told Schreiner that his concerns were the lack of a pension plan and additional job security and stability. In response, Schreiner ex- pressed dismay that Ignatovich was not aware of the Re- spondent's existing pension plan. Schreiner also argued that job security was something that each employee had to make for himself. Ignatovich also asked for the oppor- tunity to observe other areas of the shop "so we have a better understanding of how to do their job." 10 Ignato- vich recalled that Schreiner asked the employees to hold off on the Union "until he investigated a couple of [un- specified] things." Dissinger, who had been employed by Respondent for 3 years, testified that Schreiner asked what the problems were-that he was "curious as to why we went to the Union before we had talked to management." Dissinger recalled that Ignatovich spoke out first about the pension plan and job security, and that employee Crary Hess ex- pressed concern about money and a lack of understand- ing about his basic benefits. Dissinger too expressed con- cern about wages-it was his view that the employees in the photo lab were no longer just photo technicians. Ac- cording to Dissinger, Schreiner stated that he wanted to "have some time to have Dave Doss look into area [photo] labs and see what the actual . . . wage rate was." Dissinger said that Schreiner asked the photo lab employees to hold off further action on the Union be- 9 At the time of the hearing, Nida was no longer employed by Re- spondent 10 In the period following the meeting, [gnatovlch said that he was provided with the opportunity to observe what was "going on in scanner and stripping and dot etching, and understand how [he could] turn out a better product to help other people on down the line " cause he "wanted to see what the situation was." Dis- singer also said that in the course of the meeting Doss expressed the opinion that the photo lab employees could not join the Union but Doss had no recollection of such a remark. Schreiner asserted that his meeting with the lab em- ployees occurred in June. l t Schreiner said that he "sort of went through the benefits of the company as it was structured at that time" and that his explanation "led to questions." From their questions Schreiner learned that some employees were not aware of Respondent' s pension plan. The only other recollection elicited from Schreiner about this meeting concerned his statement about job se- curity. In Schreiner's words, he told the employees that "the only security . . . with any company was . . . if the company was successful and able to grow. . . . Although Doss recalled the meeting, he was not asked to relate his recollection of what occurred other than the statement attributed to him by Dissinger. 4. Robert Connelly's meetings with employees According to both Dissinger and Ignatovich, the Re- spondent's insurance agent, Robert Connelly of the R. M. Connelly Company, met individually with the photo lab employees 2 or 3 weeks after the meeting be- tween Schreiner and the photo lab group. Dissinger said that Connelly explained the Respondent's benefits that applied to him and asked for Dissinger's ideas about other benefits that Respondent could make available to employees. Dissinger suggested a profit-sharing program to Connelly and he said that Connelly responded: "Well, we'll look into it." Ignatovich said that Connelly explained the details of the Respondent's pension plan-"who pays for it, how it works [and] what the money is invested in . . . ." Igna- tovich also testified that Connelly told him that "Dave Schreiner and he had kind of kicked around different ideas as far as a possible stock buying program for the employees," which Ignatovich characterized as "[j]ust .. . nice little things like that." Connelly was not called to testify. There is no evi- dence that any management representative was present for the meetings between Connelly and the employees. The Respondent argues that Connelly is an independent contractor totally lacking authority to affect the Re- spondent's labor relations policy and that he was not au- thorized to do anything other than explain the existing benefits to employees. 5. The pay increases It is undisputed that all the photo lab employees were granted significant pay increases effective June 7. Schreiner described these increases as a part of the Re- spondent's normal merit review policy. Under that policy, nonbargaining unit employees are reviewed 3 months following their hire and are given a wage in- crease if merited. Thereafter, reviews are conducted at 6- month intervals and wage increases are granted when ap- 11 This conflict about the timing of the meeting is highly pertinent and is discussed in greater detail below 484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD propnate. According to Schreiner's testimony, fairly in- terpreted, the 6-month review intervals are more or less target times that are not necessarily strictly adhered to in practice. Instead, supervisors will review an employee about such an interval, whenever it is decided to concen- trate on personnel matters. With the foregoing in mind, the documentary evidence discloses that effective June 7, Dissinger was granted a $2.25 increase in his, base rate to $11 per hour. Watkins was given a $1.50 raise to $14.50 per hour. Hess and Ig- natovich were each given $1.50 raises to $10 per hour. Hess, Ignatovich, and Watkins, who were hired between September 3 and October 12, 1981, had each received one 50-cent-per-hour merit increase prior to the June 7 increase. Those prior increases were granted approxi- mately 3 months after their employment. Dissinger had received three previous merit increases-the first was in the amount of $1 per hour approximately 5 months after his hire; the second in the amount of $1 per hour came slightly over 4 months later; and the third in the amount of 75 cents per hour came 5 months later. Dissinger's June 7 increase was 8 months after his immediately pre- ceding increase. Doss said that he determined the amount of the June 7 increase and recommended that amount to Schreiner. Doss said the amounts were based "just from past experi- ences . . . and talking to other photo lab owners and managers, coming up with what they paid employees, and just my own experience of . . . our profit margin and costs." Doss also said that the June 7 wage increases were based on conversations with other shops over the previous year and at times even before he was hired by Respondent. In addition, Doss said that his review of past records revealed that his predecessor was delinquent in conducting reviews, a practice he was trying to cor- rect. According to Dissinger, he was first informed of the June 7 increase approximately 1 week after he met with Connelly, in late May or early June. Dissinger said that the conference about his raise took place in Schreiner's office in the presence of Schreiner and Doss. Dissinger said that Schreiner offered a raise of $2.25 per hour and he responded by telling Schreiner that he wanted some time to think it over. Schreiner consented to that request. Asked initially if Schreiner mentioned the Union when the wage increase was granted, Dissinger testified: "I don't believe he mentioned the Union. He might have implied it, but I don't believe he mentioned it." Later Dissinger testified that Schreiner "might have" men- tioned the signing of the employee letter (discussed below) notifying the Union that the employees no longer desired to be represented but he was not "positive of that." After Dissinger's recollection was refreshed by means of his prehearing affidavit, he testified that Schreiner had stated in the course of the pay increase conference that "he . . . wanted to try to not involve the Union, if it was possible." Following the meeting, Dissinger spoke with Ignato- vich and Hess. Both informed Dissinger that they had accepted the raises proffered to them. After Dissinger learned of this circumstance, he returned to Schreiner the following day and asked whether the amount of the pay increase was negotiable. Schreiner told Dissinger that it was not and that the offered increase was "a good raise, if you think about it." At that point, Dissinger ac- cepted the raise. No testimony was elicited from Schreiner or Doss about the pay raise conference with Dissinger. Ignatovich recalled that his conference with Schreiner about the pay raise was in early June. Ignatovich further remembered that Schreiner told him the amount of raise that was being offered and that he could have a couple of days to think it over. However, Ignatovich accepted the raise on the spot. Like Dissinger, Ignatovich exhibit- ed substantial reluctance and discomfort when counsel for the General Counsel sought to elicit information as to whether the proffered pay raise was connected in any fashion to his continued adherence to the Union. He only acknowledged the subject of the Union was broached at all after the General Counsel tendered his prehearing af- fidavit to him in order to refresh his recollection and he thereafter sought repeatedly to diminish any adverse impact by making, or attempting to make, nonresponsive declarations. However, when bluntly confronted by the Union's counsel, Ignatovich acknowledged that Schreiner had told him to get back with him in a couple of days as to whether he wanted to continue with the Union or accept the proffered wage increase. Schreiner did not contradict this testimony. 6. The letter repudiating the Union Ignatovich recalled (after his recollection was re- freshed again with his prehearing affidavit) that within a few days after the pay increase was granted, he suggest- ed to Hess that someone should draft a letter withdraw- ing from the Union and get it to the Union "one way or another." The following day, Hess called his attention to such a letter on Respondent's stationery and Ignatovich signed it. Dissinger said that Ignatovich called his attention to the letter when he came to work. Dissinger thought this occurred the day after he discussed the pay increase with Schreiner. Both Dissinger and Ignatovich testified that the letter was laying on the finishing table in the photo lab when they signed it. That table serves, among other things, as Doss' desk. Schreiner acknowledged that the letter was typed by the administrative assistant who performs some of his clerical work or by one of the other office secretaries. He said that it was delivered to him by the last person (not named) who signed the letter. Initially, Schreiner testified that the letter was given to him after the pay in- creases had been granted but later, when called as a de- fense witness, Schreiner attempted to assert that his final meeting with Pappert discussed below occurred in mid- May and that he received the letter repudiating the Union before the meeting and, hence, before the pay in- creases were granted. Doss testified that Hess spoke to him about the letter and that he demurred telling Hess that the letter was up to the employees. Doss denied that he told Hess (who COLOR TECH CORP did not testify) that he would get the letter done for him or that he instructed any secretary to prepare the letter. The letter was never offered in evidence. The General Counsel represented that she was never in possession of the letter, and, as described below, when the letter was tendered to Union President Pappert he returned it to Schreiner. Schreiner testified that the letter could not be located at the time of the hearing. 7. The final Respondent Union meeting Pappert testified that on June 10, Schreiner and Riley met with him for dinner at a local restaurant. In the course of this meeting the management representatives attempted to persuade Pappert to abandon his effort to represent the photo lab employees. When this failed, Schreiner handed Pappert a letter signed by the photo lab employees on Respondent's stationery, which con- tained a statement that they no longer wished to be rep- resented by the Union. Schreiner told Pappert that "the whole meeting is moot anyway, because the employees don't want to be in your Union any more."' Pappert re- turned the letter to Schreiner asserting that "the letter is obviously too late now . . . you've committed an unfair labor practice." Pappert then told Riley, "He's been bar- gaining and negotiating with the employees, and obvi- ously, we've got an unfair labor practice on our hands now." Pappert said that Riley, who did not testify, re- sponded by saying that they could negotiate or Pappert could go to the NLRB. The following day, the Union filed the instant charge. C. Further Findings and Conclusions 1. The 8(a)(1) allegations The General Counsel argues that the Respondent vio- lated Section 8(a)(1) of the Act by: (1) promising and granting wage increases; (2) dealing directly with em- ployees, soliciting employee complaints, promising in- creased pension benefits and improved terms and condi- tions of employment; and (3) initiating, sponsoring, and approving the employees' letter revoking their bargain- ing authorizations to the Union.12 Schreiner's group meeting was unmistakably designed to identify those problems that caused the photo lab em- ployees to undertake union organizational activities. The Board has held that employers unlawfully interfere with protected employee rights in violation of Section 8(a)(1) of the Act by soliciting employee grievances and com- plaints in response to organizational activity because such conduct carries with it an implied promise to cor- rect those matters that caused the employees to engage in such activities. Uarco Inc., 216 NLRB 1 (1974). Im- plicit in the Board's rationale is the notion that an em- ployer does not lose the protection of Section 8(c) of the Act if care is exercised to dispel the implication inherent in soliciting grievances by clearly informing employees that benefits will not be promised or granted in order to 12 The General Counsel also argues that the Respondent violated Sec 8(a)(5) by this particular conduct For anal ytical purposes , however, con- sideration of the alleged 8(ax5) conduct will be treated in a later subsec- tion 485 dissuade them from exercising their Section 7 rights. Thus, an employer can lawfully use such meetings to tell employees about existing benefits as Schreiner did in Ig- natovich's case in connection with the pension plan and to present his own views as he did in connection with the issue of how to best achieve job security. However, Schreiner went far beyond the bounds of merely presenting his own views and explaining existing benefits. This is evident from his appeal at the conclusion of the meeting when he asked the photo lab employees to hold off on the Union until Doss either investigated area wage rates (a matter identified by at least two em- ployees present as a problem that gave rise to their inter- est in organizing) or looked into a couple of things. Such statements would undoubtedly raise employee expecta- tions that Schreiner was willing, at the very least, to consider action that would remedy the important com- plaints they had voiced rather than assure them that he would not exercise an employer's inherent economic power over their livelihood in order to dissuade them from their legitimate activities. The events that followed closely after this meeting demonstrated that their proba- ble expectations were going to be met.13 It is admitted that Schreiner arranged to have Connel- ly come to the Respondent's plant ostensibly to explain the existing pension plan and it is uncontradicted that Connelly solicited suggestions about other benefits that could be implemented in the future. It is also uncontra- dicted that he told at least Ignatovich that Respondent was considering a stock purchase plan. Respondent dis- claims responsibility for the claimed unlawfulness of Connelly's actions by denying that he was an agent of the Respondent empowered to make such inquiries or promise additional benefits but Connelly was not called to corroborate this self-serving assertion. Furthermore, because of the circumstances of Connelly's involvement, I reject the Respondent's assertion. Although it is true that Connelly is an independent insurance broker, his meeting with the photo lab employees was arranged on the plant premises by Schreiner for the purpose of ex- plaining a benefit that his independent firm provided for the Respondent. Moreover, Connelly was permitted to meet with the employees unsupervised by any of the Re- 13 I reject as unworthy of credit Schreiner's testimony concerning the chronology of events, i e , that his final meeting with Pappert wherein he presented the Union's president with the employees' letter occurred before his group meeting with the employees and the date of the pay in- creases This testimony by Schreiner was susceptible of corroboration to some degree or another by a number of witnesses primarily within the Respondent's control, namely, Doss, Riley, Connelly , and the clerical employee who prepared the letter No effort was made to obtain such corroboration Additionally, Schreiner's testimony about the substance of his meeting with the employees, his reasons for having Connelly speak to the employees , his own testimony that Connelly spoke to employees before the final meeting with Pappert and his testimony that employees were, in effect, still supporting the Union when he met with them is in- consistent with his broad description of the chronology of the pertinent events Additionally, Schreiner demonstrated the unreliability of his recollection by testifying initially that only one meeting involving Pap- pert and himself occurred , forgetting completely the March 23 meeting until he was recalled after Pappert 's testimony By contrast, there was a sufficient degree of consistency in the testimony of Pappert, Dissinger, and Ignatovich to merit the conclusion , which I have reached, that their testimony represents the more reliable version of the chronology 486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent's officials and his remarks to Ignatovich are strongly suggestive of Schreiner's concurrence. When these factors are considered in the context of Schreiner's group meeting only a few days earlier, the appearance of Connelly's authority is inescapable especially where, as here, there is absolutely no evidence that employees were in any way advised of any limits on Connelly's au- thority to speak on behalf of the Respondent about fringe benefits. Respondent argues that the pay increases that followed shortly after the group meeting and Connelly's meetings were merely regular merit increases . Respondent also argues that it was placed in a "damned if you do and damned if you don't" situation as pertains to the wage increases. The record fails to support either of the Re- spondent's arguments. Instead, a preponderance of the evidence shows that the June wage increases were tied directly to the employees' organizing effort. This conclu- sion is supported by Schreiner's concluding request at the group meeting that the employees defer their orga- nizing effort until Doss had conducted further investiga- tions. Added support is found from the fact that the wage increases were not granted outright, but rather were presented by Schreiner as an alternative to further union activities. Additionally, the documentary evidence shows that the size of the increases exceeded any merit increases that had been granted either before or after the June wage increases by substantial amounts.'' This latter fact is all the more significant in view of other uncontra- dicted evidence that they occurred at a time when the work in the photo lab was at a low ebb. Although that same documentary evidence tends to support Schreiner's testimony that merit reviews and increases were erratic, the documentary evidence also shows that the photo lab employees had never before received an increase all at the same time. Accordingly, on the basis of direct evi- dence tying the June increase to the organizing effort and the circumstantial evidence that permits the same in- ference, I find that the June increases were merely one part of a chain of several events designed to dissuade the employees from supporting the Union. Likewise, the preponderance of the evidence supports the inference that I have drawn that the Respondent was responsible in the main for the employee letter disavow- ing the Union. Although there is no direct evidence showing that the Respondent 's agents "initiated" the em- ployee letter, the General Counsel did provide sufficient evidence through the reluctant employee witnesses to re- quire the Respondent to go forward with other evidence to absolve itself of the connection that the General Counsel had shown between the Respondent and the letter. In the first instance, the General Counsel was able to show a course of conduct on the Respondent's part designed to achieve the result that the employee letter 14 I do not credit Doss' vague explanation as to how the amounts of the increases were determined The fact that Dissinger, whom Doss re- garded as a very good employee , received two prior increases after Doss was hired that were less than half the amount of the June 7 increase, simply renders Doss' explanation hard to believe And Doss' purported concern over his predecessor's failure to conduct timely reviews is incon- sistent with Dissinger's June 7 increase 2 months beyond what would be normal under Respondent's policy. exemplified through the period of time immediately pre- ceding the appearance of the letter. Second, the letter was said to have been on the Respondent's stationery and was prepared in the Respondent's office, perhaps even by the individual who serves Schreiner in a clerical capacity. Third, the letter was made available to employ- ees at a work location that serves as Doss' desk. Fourth, the letter was delivered to Schreiner who, in turn, at- tempted to use it to the Respondent's advantage in deal- ing with the Union over the problem that was posed by the employee organizing effort and the Union's demand for recognition. Fifth, as noted above, it is my conclu- sion that Schreiner was not truthful in his testimony about the chronology of events, which included the group meeting, Connelly's visit to the plant, the wage in- creases and the letter. Instead, Schreiner's effort to place the appearance of the letter before the other events merits the inference that I have made that the Respond- ent was actively encouraging its employees to cease their organizational activities. When the weight of the General Counsel's evidence is considered against the bare denials of Schreiner and Doss that the Respondent lacked in- volvement with the employee letter until it was deliv- ered to Schreiner by the final signer, the Respondent's protestation of innocence about the letter is not credible. Although it is my conclusion that the evidence does not permit the inference that the Respondent actually " initi- ated" the letter as the General Counsel has alleged, I do find that the Respondent actively promoted, supported, and approved the letter. The complaint alleges that Doss unlawfully interrogat- ed employees, but the General Counsel's brief does not argue this allegation. Nevertheless, there is uncontradict- ed evidence that in approximately February Doss asked Ignatovich why the employees had gone to the Union. There is no evidence that employees had theretofore dis- closed their individual allegiance to the Union or other- wise overtly disclosed their sympathies. Likewise, there is no evidence that this inquiry had any legitimate pur- pose. Accordingly, I find such an inquiry in the circum- stances would tend to coerce employees. In view of the foregoing findings and conclusions, I find that the Respondent violated Section 8(a)(1) of the Act by the conduct of Schreiner and Connelly in solicit- ing employee grievances and ideas for future benefits under circumstances calculated to leave employees with the expectation that favorable action would be taken in whole or part; by urging employees to forgo their orga- nizational activities while Respondent investigated area wage rates or other matters and thereby impliedly prom- ising to adjust wages; by granting wage increases calcu- lated by their presentation, size, and timing to induce em- ployees to abandon their support for the Union; and by promoting, supporting, and approving the employee letter withdrawing support for the Union. Similarly, I find Respondent violated Section 8(a)(1) of the Act by Doss' coercive interrogation of Ignatovich. Except to the extent discussed below, the complaint allegations that allege violations of the Act by labeling these same events differently will be dismissed as the finding that I have made above, in my judgment, correctly characterizes COLOR TECH CORP. these events and further remedial action is unnecessary. In particular, the General Counsel alleges (but does not so argue in her brief) that Schreiner unlawfully interro- gated employees. Although the evidence shows that Schreiner questioned employees about the problems that caused them to seek union representation, the essence of Schreiner's conduct was to solicit grievances rather than to coercively interrogate employees. 2. The bargaining order allegations Contrary to the General Counsel's primary complaint allegation pertaining to Respondent's bargaining obliga- tion, it would be inappropriate to find at this time that the photo lab employees are an accretion to the existing unit. It is true as the Charging Party, in effect, argued that the Board has regularly included precamera, paste- up, and design employees who perform functions similar to those performed by the Respondent's photo lab em- ployees in units of lithographic production employees, the type of historical unit represented by the Union here. Nowels Publications, 219 NLRB 222 (1975); Paramount Press, Inc., 187 NLRB 536 (1970); Bank of America, 174 NLRB 298 (1969); and Printing Industry of Seattle, 116 NLRB 1883 (1956). See also Printing Industry of Seattle, 202 NLRB 558 (1973). However, the Respondent's photo lab has been in existence over the period of several suc- cessive collective-bargaining agreements and, until now, the Union has never sought the inclusion of those em- ployees in the unit it currently represents. Although the union representatives who testified asserted that they were unaware of the precise nature of the work being performed by the Respondent's photo lab department, Pappert in particular acknowledged that he was aware of its existence. Given the nature of the Board's unit scope policy in this industry, it is fair to infer that the operation of a photo lab at a plant similar to the Respondent's would, standing alone, be sufficient to alert the Union to at least the possibility that the photo lab employees were performing work that arguably could warrant their in- clusion in an existing lithographic production unit. This basic circumstance was not affected in any manner by the installation of the computerized camera in the photo lab. Rather, the evidence here shows that this recent development merely automated the work of that department and improved the quality of the product that it produces. It did not encroach on the work theretofore performed by the employees in the historical unit, so that to the extent that the photo lab employees performed work that was similar to, or duplicative of, work that could be performed by the Respondent's scanners and strippers, that has always been the case. Such a finding is further supported by the fact that neither the General Counsel nor the Union sought contrary testimony from any knowledgeable individual employed by the Respond- ent in the historical unit including the Union's plant steward. Instead, the testimony of Stanley Chin, an expe- rienced employee of another Bay Area lithographic op- eration, was proffered in support of the proposition that the nature of the Respondent's photo lab operations is similar to that which employees in the historical unit normally perform. Although I have carefully weighed and considered Chin's testimony, in the final analysis, I 487 do not consider it probative for any purpose other than the fact that the photo lab employees are plainly in the chain of the typical lithographic production process. Where, as here, the Respondent's photo lab since its inception has occupied the same support role for the Re- spondent's lithographic process, the issue of accretion in this case is not controlled by those principles that apply in the instances of initial organization or of newly estab- lished operations. This is so because the Board has re- peatedly declined to accrete a group of employees into an existing unit where "the group sought to be accreted has been in existence at the time of recognition or certifi- cation, yet not covered in any ensuing contract, or, having come into existence, has not been part of the larger unit to which their accretion is sought or grant- ed." King Radio Corp., 257 NLRB 521, 526 (1981); Laco- nia Shoe Co., 215 NLRB 573, 576 (1974); and Sterilon Corp., 147 NLRB 219 (1964). Accordingly, I find that the photo lab employees are not an accretion to the ex- isting unit. Under normal circumstances, their inclusion at this late date would raise a question concerning repre- sentation that is best resolved by means of a secret-ballot election under Section 9 of the Act. See, e.g., Monoga- hela Power Co., 198 NLRB 1183 (1972), and cases cited in footnote 4. Having concluded that the Respondent's photo lab em- ployees would normally be entitled to elect by secret ballot whether they desired to be represented by the, Union for collective-bargaining purposes, it is necessary to consider the General Counsel's alternative allegation and argument that the Respondent's unfair labor practice conduct was sufficiently serious so that it tended to un- dermme the Union's majority strength and impede the election process within the meaning of NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). If so, the General Counsel's complaint allegation seeking the entry of a re- medial bargaining order is appropriate. 15 Id. at 614. The General Counsel argues that the "conduct of the Respondent's supervisors and managers obliterated any support which previously existed for the Union." The Respondent argues that any unfair labor practice that might be found here was "technical and inadvertent," and, therefore, no bargaining remedy is warranted. i5 As noted, the complaint alleges in the alternative and the answer effectively admits that the photo lab employees may constitute a separate appropriate unit In addition , I find that the evidence as a whole supports a conclusion that these employees do constitute an appropriate unit as the photo technicians group is sufficiently homogeneous and cohesive Among other things the evidence shows that they are subject to separate direct supervision, that they do not interchange with other employees; that they possess and use skills and equipment not shared by other em- ployees, and that there are no other unrepresented production employees Moreover, because of their historical exclusion from the existing multiem- ployer unit, their wages and benefits have been set solely by their em- ployer without regard to multiemployer considerations Finally, there is no evidence apart from the history of multiemployer bargaining for the lithographic unit that a unit of such employees broader than the presump- tively appropriate single employer unit is appropriate As there is no evi- dence that other employers in the Association's multiemployer unit employ photo technicians, I find that history, standing alone, is not con- trolling and that the Respondent 's photo technicians possess a sufficient degree of separate identity so as to constitute an appropriate unit See, e g., Hyatt House Motel, 174 NLRB 1009 (1969) 488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD It is concluded that the Respondent's unlawful con- duct found above-commencing with Schreiner's group meeting with the photo lab employees in April or May and continuing through the completion of the withdraw- al letter-was designed solely to, and did, destroy the Union's majority standing among the photo lab employ- ees.16 Schreiner, himself, described the question concern- ing representation raised by the Union's demand for rec- ognition as "moot" in the course of his June 10 meeting with Pappert. The extreme reluctance and discomfort shown by Dissinger and Ignatovich in testifying on behalf of the General Counsel reinforces Schreiner's as- sertion in that regard. The reticence that these two em- ployees exhibited while testifying almost a year and a half after Respondent's unlawful conduct further sup- ports the conclusion, which I have reached, that the nature of the Respondent's unlawful conduct did have a lingering effect and would make the chances for a free and fair election very slight. By granting an unusually large wage increase in June and conditioning it on the abandonment of the Union, the Respondent demonstrat- ed its unwillingness to risk the favored election process. Even absent the condition extracted by the Respondent, the size and breadth of the June wage increases closely parallels the type of unlawful conduct that the Board has relied on in several past cases in determining that a bar- gaining order remedy was appropriate. See, e.g., J. J. Newberry Co., 249 NLRB 991 (1980); Lang Feed Co., 227 NLRB 1588 (1977); Idaho Candy Co., 218 NLRB 352 (1975); and Tower Records, 182 NLRB 382 (1970). By contrast, those cases cited by the Respondent for the proposition that the Board has withheld a bargaining order remedy even though an employer granted or promised to grant benefits in response to union activity are clearly distinguishable. Thus, in Chefs Pantry, Inc., 247 NLRB 77 (1980), the granted benefits were deemed so minor as to make them insufficient to support a bar- gaining order. In Lasco Industries, 217 NLRB 527 (1975), the wage increases and job classification changes were accorded to only 10 of 70 unit employees as opposed to the situation here where all the unit employees were granted unusually large wage increases and were solicit- ed to abandon the union. And in Walgreen Co., 221 NLRB 1096 (1975), the wage increase was an ill-timed implementation at a single location of a wage system es- tablished months earlier for multiple locations that the Board held was not specifically tied to the union orga- nizing campaign.17 4 Here the Respondent's unlawful conduct was suffi- ciently widespread and pervasive as to preclude the pos- sibility of a fair election and, accordingly, I find the bar- gaining order remedy sought by the General Counsel is appropriate. But contrary to the complaint allegation that seeks a bargaining order remedy effective February 8, the date the Union requested recognition, I find, in accord with established Board principles, that the effec- tive date of such an order should be the date on which Schreiner held the group meeting with the photo lab em- ployees as that meeting signaled the commencement of the unlawful course of conduct designed to destroy the Union's majority status. Trading Port, Inc., 219 NLRB 298, 300 (1975). See also Peaker Run Coal Co., 228 NLRB 93 (1977). 3. Other 8(a)(5) conduct The evidence shows that prior to Schreiner's group meeting with the photo lab employees, the Respondent's representatives had engaged in lawful preliminary discus- sions with the Union in an effort to more fully under- stand the significance of the Union's recognition demand. Such efforts are not unusual; instead, they are often a precursor to voluntary recognition or, at least, useful for identifying issues that will arise in the event the Board is petitioned to resolve a question concerning representa- tion. Such conduct by the Respondent was not tanta- mount to de facto bargaining or recognition of the Union as the Charging Party claims. However, commencing with the group meeting, the Respondent fundamentally altered its course. Instead of continuing its discussions with the Union, which repre- sented a clear majority of its photo lab employees, or giving some firm indication that further talks would be futile until the question concerning representation was resolved, the Respondent undertook to undermine the Union's majority status by soliciting employee com- plaints, dealing directly with its employees to resolve the complaints that were disclosed, and by unilaterally ad- justing employee wage rates in a manner that was con- trary to its usual practice. I find that by engaging in such conduct, the Respondent violated Section 8(a)(5) of the Act. Accordingly, an appropriate remedial order will be recommended for this conduct in accord with the Trad- ing Port principle. Lang Feed Co., supra, 277 NLRB at 1591. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE 19 Although I have found that Doss earlier interrogated Ignatovich, the evidence does not support the conclusion that this earlier incident is a part of a course of conduct designed to dissipate the Union's majority standing 17 I deem the other cases cited by Respondent for this proposition to be inapposite They were Bruce Duncan Co, 233 NLRB 1243 (1977) (Board held that an assault, a threatened assault, and a single threat to close a plant did not warrant a bargaining remedy), Sturgis-Newport Busi- ness Forms, 227 NLRB 1426 (1977) (Board held that 12 8(a)(1) violations not involving a promise or a grant of benefits did not destroy election conditions and were not so pervasive and widespread as to warrant a bar- gaining order), Berenson Liquor Mart, 223 NLRB 1115 (1976) (Board held bargaining order inappropriate because the General Counsel failed to prove union's majority status), Treadway Inn, 217 NLRB 51 (1975) (no indication that a bargaining order was sought), Litho Press, 211 NLRB 1014 (1974) (no evidence of a card majority) The activities of the Respondent set forth in section III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative action COLOR TECH CORP 489 necessary to effectuate the purposes of the Act. In this latter regard, it is recommended that the Respondent be ordered to recognize and bargain with the Union, on re- quest, as the exclusive representative of its photo techni- cians. It is also recommended that the Respondent be or- dered to rescind the unlawful June 7 wage increases granted to its photo technicians if requested to do so by the Union. CONCLUSIONS OF LAW 1. Color Tech Corporation is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Graphic Communications International Union, Local 280 is a labor organization within the meaning of Section 2(5) of the Act. 3. All photo technicians employed by Respondent in its photo lab at its Redwood City, California facility; ex- cluding all other employees , guards, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since January 16, 1982, the Union has been and is now the exclusive representative of the em- ployees in the unit specified above in paragraph 3 for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By coercively interrogating an employee Respond- ent has engaged in an unfair labor practice affecting commerce in violation of Section 8(a)(1) of the Act. 6. By soliciting employee grievances with an implicit promise to correct such grievances; by granting wage in- creases to employees in the unit specified above in para- graph 3, about June 7, 1982; by promoting, supporting, and approving the circulation and subscription to an em- ployee letter withdrawing from the Union, all in order to discourage its photo technicians' union activities, mem- bership, and support, Respondent has engaged in unfair labor practices affecting commerce in violation of Sec- tion 8(a)(l) of the Act. 7. By refusing, since about April or May 1982, to rec- ognize or bargain with the Union as the exclusive repre- sentative of the employees in the unit described above in paragraph 3 while directly dealing with its photo techni- cians to solicit and remedy employee grievances, and unilaterally increasing rates of pay effective June 7, 1982, all for the purpose of undermining the Union's majority standing and making chances for a fair election slight, Respondent has engaged in unfair labor practices affect- ing commerce in violation of Section 8(a)(5) and (1) of the Act. 8. Respondent has engaged in no other unfair labor practices other than described above in paragraphs 5, 6, and 7. [Recommended Order omitted from publication.]