NLRB v. Aluminum Casting

In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4187

National Labor Relations Board,

Petitioner,

v.

Aluminum Casting & Engineering Co., Inc.,

Respondent.

On Application for Enforcement of an
Order of the National Labor Relations Board.
Nos. 30-CA-12855, et al.

Argued September 6, 2000--Decided October 13, 2000

Before Manion, Kanne, and Diane P. Wood, Circuit
Judges.

Diane P. Wood, Circuit Judge. This case has lain
in labor relations limbo for nearly six years,
between a union victory in an election that was
ultimately set aside and the holding of a new
election. In the meantime, the company has (quite
happily, we may assume) been operating union-
free, and the National Labor Relations Board (the
Board) has been pursuing a series of unfair labor
practice charges based on conduct both before and
after the contested election. Eventually the
Board found that the company, Aluminum Casting &
Engineering Co., or ACE/CO, had committed a
number of violations of the National Labor
Relations Act, sec.sec. 8(a)(1) and (3), 29
U.S.C. sec.sec. 158(a)(1) and (3), and it issued
an order requiring ACE/CO to cease and desist and
to take certain affirmative steps to cure those
violations. Aluminum Casting & Engineering Co.,
328 NLRB No. 2, 1999 WL 678727 (April 9, 1999).
We enforce most of that order, but as we explain
below, we decline to enforce with respect to one
of the charged violations, and we enforce the
remedy only as clarified by the Board’s counsel
at oral argument.

I

ACE/CO is a Milwaukee company in the business
of manufacturing automobile parts. From 1971 to
1988, its employees were represented by the
Moulders Union. The experience was an unhappy
one, at least for ACE/CO. Strikes and violence
were the order of the day, and the relationship
ended in 1988 when the parties were unable to
agree on a new collective bargaining agreement.
No new union activity seems to have begun until
July 1994, when the United Electrical, Radio &
Machine Workers of America (the Union) began an
organizing drive among ACE/CO’s 400-some
production and maintenance workers.

To avoid undue repetition, we discuss the
particular events during the organizing campaign
that followed in connection with the particular
charges the Board brought. It is enough to say
here that the election took place on January 5
and 6, 1995. Of the 396 ballots cast, 193 were in
favor of the Union and 183 were against;
challenged and void ballots would not have
changed the result. On the other hand, it turned
out that many of the ballots were flawed because
of erroneous translations into the several
languages spoken at the workplace, including
Hmong and Vietnamese. Following a June 1995
hearing on these objections filed by ACE/CO, the
Board set aside the January 1995 election and
directed that a new one take place. To this day,
it has not set a new date, because (as the
administrative law judge in this case put it),
"further processing of the representation case is
blocked by the unfair labor practice charges in
this case."

The charges to which the administrative law
judge (ALJ) referred were filed by the Regional
Director of the Board. There was a hearing on
these charges in February 1998, and ALJ William
G. Kocol issued a decision in May 1998, to which
both ACE/CO and the Board’s General Counsel filed
exceptions. The Board ultimately found that
ACE/CO had violated the National Labor Relations
Act (the Act) in a number of respects: (1) by
failing to follow its established practice of
giving an annual across-the-board wage increase
in early 1995 and by engaging in conduct that
indicated to the employees that the failure to
receive this increase was the Union’s fault; (2)
by prohibiting solicitation "except when all
concerned are relieved from duty," (3) by
reimbursing only certain anti-union employees for
vehicle damage their cars suffered on or near
company premises, contrary to its normal
practice; (4) by directing employees to report
any pressure to sign union authorization cards;
and (5) by declaring in its employee handbook its
intention "to do everything possible" to remain
union-free. The Board’s remedial order requires
ACE/CO to rescind the no-solicitation rule, to
rescind the challenged handbook language, and to
make whole all employees who were not granted
across-the-board wage increases in 1995 and
thereafter. The Board now seeks enforcement of
its order, and ACE/CO has asked that we set it
aside.

II

Our review of the Board’s findings of fact and
application of the law is deferential, as both
parties recognize. See, e.g., Beverly California
Corp. v. NLRB, Nos. 98-3177, et al., 2000 WL
1286248, at *5 (7th Cir. Sept. 13, 2000). The
Board’s findings of fact are conclusive if they
are supported by substantial evidence on the
record as a whole. 29 U.S.C. sec. 160(e);
Beverly, 2000 WL 1286248, at *5. Its conclusions
of law are also entitled to deference if they
have a reasonable basis in the law and are not
inconsistent with the Act. NLRB v. Yeshiva
University, 444 U.S. 672, 691 (1980); Beverly,
2000 WL 1286248, at *5; see also Central
Transport, Inc. v. NLRB, 997 F.2d 1180, 1184 (7th
Cir. 1993). Finally, we review the Board’s choice
of remedy only to ensure that it is narrowly
tailored and that it effectuates the polices of
the Act. See Beverly, 2000 WL 1286248, at *24;
Ron Tirapelli Ford, Inc. v. NLRB, 987 F.2d 433,
437 (7th Cir. 1993). With these standards of
review in mind, we consider first ACE/CO’s
challenges to the violations found by the Board,
and then the remedy.

A. Across-the-Board Wage Increase

The Board found that ACE/CO violated sections
8(a)(3) and 8(a)(1) by failing to grant an
across-the-board wage increase in early 1995 and
by communicating to the employees throughout that
year that the Union was responsible for their
failure to receive a raise. ACE/CO argues that
the evidence did not show that it had a regular
practice of giving an across-the-board raise, and
that the real reason none was given in 1995 had
nothing to do with the Union. Instead, it claims
that it was in the process of revamping its
entire compensation system in order to respond to
the pressures of competition within the
automobile and automotive parts industry, from
one that used across-the-board measures to one
that was entirely based on factors such as merit
and training. The ALJ found that the facts
supported the Board’s allegations, and that
whatever ACE/CO had begun to do with alternative
compensation systems was still merely
supplementary to, rather than in lieu of, its
across-the-board raises.

Section 8(a)(3) of the Act prohibits an
employer from discriminating with regard to terms
or conditions of employment in an attempt to
encourage or discourage membership in any labor
organization. 29 U.S.C. sec. 158(a)(3). Section
8(a)(1) makes it an unfair labor practice for an
employer "to interfere with, restrain, or coerce
employees in the exercise" of their statutory
rights, including especially their section 7
rights to organize. 29 U.S.C. sec. 158(a)(1). An
employer violates both sections of the Act if it
departs from an established practice of granting
wage increases because of a union organizing
campaign or other union activity. See, e.g., NLRB
v. Shelby Memorial Hosp. Ass’n, 1 F.3d 550, 557-
58 (7th Cir. 1993); NLRB v. Don’s Olney Foods,
Inc., 870 F.2d 1279, 1285 (7th Cir. 1989).

A critical factual question underlies this part
of the Board’s case: did ACE/CO have an
established practice of granting annual across-
the-board wage increases at the time the Union
began its organizing campaign in late 1994? Both
the ALJ and the Board found as a fact that it
did, and so the question for us is whether that
finding is supported by substantial evidence.
Once we have resolved that point, the rest of
this part of the case falls in place. ACE/CO’s
position is that it was between a rock and a hard
place during the campaign: if it granted the wage
increase, it would violate section 8(a)(1) by
giving an impermissible benefit, see Mercury
Indus., Inc., 242 NLRB 90 (1979); if it did not,
it would find itself where it does today. The
dilemma was real, however, only if there was no
established practice. If there was, then the law
is clear that the employer is safe if it makes no
changes (either positive or adverse) during the
course of a campaign. See Shelby Memorial, 1 F.3d
at 558; Don’s Olney Foods, 870 F.2d at 1285.

With respect to that factual issue, the ALJ
decided to begin his consideration of ACE/CO’s
practice in 1989, the first year after the
collective bargaining relationship with the
earlier union had terminated. In February 1989,
the company announced that its hourly employees
would receive a 10-cent per hour wage increase
effective February 13, 1989, and an additional
five-cent per hour increase effective August 14,
1989. Individual incentive rates would be
adjusted proportionately, and the merit pay
system would remain unchanged. The next year, the
company announced on February 5, 1990, that a 15-
cent per hour across-the-board wage increase
would take effect on February 12, 1990, and that
the utility rate for all employees would increase
by five cents per hour on August 13, 1990. In
1991, there was no general wage increase, but in
1992, on February 7, ACE/CO announced an increase
effective February 17 in the utility rate of 20
cents per hour, and it added that shop employees
would receive an additional five cents per hour
effective August 17, 1992. On February 8, 1993,
the company announced an increase in the utility
rate of 20 cents per hour, effective February 15;
shop hourly employees received an additional five
cents per hour effective August 16, 1993. The
pattern continued in 1994: on February 14, ACE/CO
announced an increase in the utility rate of 20
cents per hour effective February 21, and an
extra five cents per hour for the shop employees
effective August 15, 1994. In each of those
years, ACE/CO had followed a similar procedure
for deciding whether to offer increased wages and
how much to offer. It relied principally on three
sources of information: the increase in the cost
of living, if any, over the preceding 12 months;
conversations with other foundries in the area to
see if they were granting wage increases; and
reports in general business publications. Its
goal was to keep its wages at a competitive
level.

It was against this backdrop that the ALJ
evaluated what happened in 1995. As noted above,
some time in the middle of 1994, the Union began
its organizing drive at ACE/CO’s facility. In
mid-October 1994, company representatives met
with new employees, in part to discuss the
Union’s organizing effort. At that time, they
assured the group that each year the company:

reviews what is happening in the Milwaukee market
place with wages and benefits. It looks at the
year’s performance for the Company, and then
decides what type of wage and benefit adjustment
can be made. An announcement is usually made in
January of each year. That’s what happens each
year--when there is no union.

Aluminum Casting, 2000 WL 678727, at *12. During
a meeting in November 1994, company officials
again told the employees that annual wage and
benefit reviews occurred each year in November
and December, that the company was then in the
process of conducting that review, that it would
decide what changes to recommend, that the
announcement of the change would be made in
January, and that the change would take effect in
February.

Yet another reiteration of this message occurred
at a December 7 meeting of the employees. In
response to employees’ questions regarding when
they would get their next pay adjustment, company
representatives answered as follows:

In addition to merit increases [the company]
surveys in January the wages of comparable
companies in the Milwaukee area in order to
provide pay adjustments to remain competitive.
This is particularly important in a tight job
market as currently exists in the Milwaukee area.

Our past and present practice is to conduct the
survey in the Fall, to announce the increase in
late December of [sic] early January, and to put
the increase into effect in February.

Obviously if a union comes in, wages would be
subject to the process of bargaining and wage
programs could not be changed up or down during
that process. The law does not provide time
guidelines as to how long negotiations could
last. That could take months or years.

Id. A number of additional statements along these
lines were also made.

In our view, these statements provided ample
evidentiary support for the ALJ’s finding,
affirmed by the Board, that ACE/CO indeed had a
regular practice of giving annual across-the-
board wage increases when economic circumstances
warranted; the evidence showed that ACE/CO
usually concluded that circumstances did warrant
an increase (before the contested 1995 decision,
it reached this conclusion in every year except
1991). It is also notable that the company
continuously reaffirmed its normal practice to
the employees throughout the election campaign.
It did not develop any reluctance to give an
across-the-board increase until after it learned
the results of the January 5-6, 1995, election.
The Board was entitled to conclude that ACE/CO’s
current explanation for the decision not to give
an early 1995 general wage adjustment--its desire
to abandon across-the-board measures in favor of
a purely merit and incentive-based system--was an
afterthought, at least as applied to 1995.

Given the fact that ACE/CO had an established
practice, its arguments that it was caught in a
no-win situation cannot prevail. Indeed, it is
when an employer during an organizing campaign
departs from its usual practice of granting
benefits that it creates trouble for itself. In
that situation, the Board is entitled to infer an
intent to influence the upcoming election and
conclude that the employer’s conduct violated the
Act. See, e.g., Shelby Memorial, 1 F.3d at 557;
Don’s Olney Foods, 870 F.2d at 1285. As we said
in Don’s Olney Foods:

[i]n order not to unfairly influence a union
election, the employer must maintain the pre-
union status quo respecting employee benefits,
viewed dynamically; that is, expectations of
upcoming benefits created by the employer either
by promises or through a regular pattern of
granting benefits cannot be disappointed without
proof of a union-neutral justification.

870 F.2d at 1285. The Board here was not
persuaded by ACE/CO’s efforts to show that kind
of union-neutral justification in its alleged
transition to a different philosophy of
compensation or its alleged effort to preserve an
influence-free election environment.
Immediately after the election, ACE/CO issued a
statement to the employees on January 9
announcing that its failure to grant the annual
wage increase was not because of the election,
but instead because the company wanted to
preserve the laboratory conditions needed for a
fair election. In February 1995, it similarly
said that it was postponing any wage increase
until the election was certified, again noting
that it did not wish to interfere with employee
free choice. (Obviously this would not have
interfered with anyone’s free choice in the
already-completed January 1995 election; it had
to be a forward-looking statement that
anticipated success in setting that election
aside and conducting a new one--a step that had
not yet occurred.)

Other statements like this were made throughout
the spring, but the one that had the greatest
impact on the ALJ appeared in a leaflet
distributed on June 27, 1995, after the January
election had been set aside. The leaflet was
entitled "One Year Later," and it contained the
following passage:

Just about a year ago, the UE started its
effort to get into our plant and your pockets.
Remember the big promises of $1.00 an hour
increases, new benefits and quick successes?

Since then, there have been no increases in
wages except for those under plans started by
[the company] before the Union. No changes in
benefits have occurred.

The NLRB has just concluded four months of
hearings concerning election objections. However,
the legal proceedings may go on for many more
months and possibly even years. We have had
employees threatening other employees, employees
filing charges and lawsuits against other
employees. Instead of trying to bring us
together, the UE has turned group against group,
employee against employee.

In the one-year period before the UE stuck its
nose in, you had a wage increase, a new pay for
knowledge program, and benefit changes. Ask
yourself--weren’t we all a lot better off?
Aluminum Casting, 1999 WL 220279, at *14. Both
the ALJ and the Board regarded the statements
made during the spring and early summer of 1995,
culminating in the June 27 leaflet, as evidence
that ACE/CO was unlawfully attempting to blame
the Union for the fact that there was no 1995
across-the-board wage increase. Furthermore, the
ALJ noted, there were no across-the-board wage
increases for any years following 1995, for the
same reason. Id.

An employer may deviate from its normal
practice of granting wage increases during an
organizing campaign when it advises its employees
that an expected raise is to be deferred pending
the outcome of the election, to avoid the
appearance of election interference. See Parma
Indus., Inc., 292 NLRB 90, 91 (1988). But in
those situations, the employer must also take
care to convey the message that the adjustment
will be awarded whether or not the employees
select a union. Shelby Memorial, 1 F.3d at 558.
Not only did ACE/CO fail to communicate that
message (just like the employer in Shelby), but
it went further and attempted to blame the union
for the lack of the across-the-board benefit. Or,
to put the same point more accurately, the ALJ
and the Board were entitled so to construe the
evidence before them, including the leaflet and
the other statements made throughout the spring
of 1995.

Finally, the ALJ and the Board concluded that
at least as of 1995, the merit and incentive
programs were still complementary to the across-
the-board adjustments, and they were not perfect
substitutes for the established system. They were
impressed by the fact that in all of its
explanations for its failure to adjust the wages,
ACE/CO never once mentioned the development of an
alternative system; instead, it just blamed the
union. In fact, in meetings held in November 1994
and December 1994, it discussed both its expanded
training and development programs and its
intention to give the annual wage increase.

Based on this record, the Board was entitled to
conclude that ACE/CO’s decision in early 1995,
just after the Union had won the initial
election, not to give an annual across-the-board
wage adjustment, violated sections 8(a)(3) and
8(a)(1) of the Act. We therefore enforce that
part of the Board’s order and move on to the
company’s other challenges.

B. Prohibition of Solicitation

The Board found that ACE/CO violated section
8(a)(1) by maintaining in its Rules of Conduct a
rule that prohibits employees from "[s]oliciting
or selling on company premises except when all
concerned are relieved from duty." The Board
regularly finds phrases like "relieved from duty"
to be objectionable because they can be
understood to prohibit employees from engaging in
protected conduct from the time they enter on
duty (i.e., punch in) until the time they leave
for the day. Such a rule would prohibit protected
activities even during breaks and lunches, and
would be presumptively unlawful. See NLRB v.
Trailways, Inc., 729 F.2d 1013, 1018, 1021 (5th
Cir. 1984); NLRB v. Rooney, 677 F.2d 44, 45 (9th
Cir. 1982). The Board’s finding that the ACE/CO
rule fell on the unlawful side of the line is
consistent with its prior cases and is an
interpretation of the law that we have no reason
to disrupt.

ACE/CO points out that a presumptively invalid
rule can be rescued by evidence that the rule was
communicated or applied in such a way as to
permit solicitation during break times and lunch.
See, e.g., Essex Int’l, Inc., 211 NLRB 749, 750
(1974). That, it claims, is just what it did. In
1994, it posted another no solicitation rule in
its cafeteria that only prohibited solicitation
during working time and working hours, and
defined working time in a way that clearly
excluded breaks and lunch periods. But the rule
posted in the cafeteria made no reference to the
Rule of Conduct, nor did it tell the employees
which rule took precedence. Cf. Beverly, 2000 WL
1286248, at *16; Publishers Printing Co., 317
NLRB 933, 934 (1995), enforced, 106 F.3d 401 (6th
Cir. 1995); Essex, 211 NLRB at 750. Conscientious
employees who had read both the Rule of Conduct
and the posting in the cafeteria would not have
known what was or was not permitted. Particularly
in the absence of evidence like that in Essex,
211 NLRB at 750, showing that employees were
explicitly told that they could solicit during
lunch and break times, we conclude that the
Board’s decision was supported by the evidence
and is entitled to enforcement.

C. Reimbursements for Vehicle Damage

During the organizing campaign, vehicles
belonging to four employees were damaged while
they were parked on or near company property. The
victims, all union opponents, thought that the
Union was responsible for the vandalism, and they
complained to management. There was no evidence
that this was so, nor was there any evidence that
the damage to the cars had even occurred while
the employees were at work. Nevertheless, ACE/CO
reimbursed the employees for the damage in
amounts ranging from $40 to $350. Noting that the
company (a) had restricted its reimbursements in
the past to situations in which the company
itself caused or might have caused the damage,
(b) did not ask for any support for the
allegations that the damage was caused by union
supporters, and (c) was acting contrary to its
past practice, the Board found that these
reimbursements violated section 8(a)(1).

This finding is amply supported by the
evidence. The ACE/CO Director of Labor Relations
conceded that the company never announced any
general offer to employees that they could obtain
reimbursement for damage to cars parked on or
near its property. Instead, the Director admitted
that the company had offered these reimbursements
in conversations in which the recipients were
providing anti-union statements in connection
with the election challenge.

D. Union Authorization Cards

On March 13, 1995, ACE/CO distributed a
memorandum in which it requested employees to
inform their supervisors when they were
approached by someone and asked to sign a union
authorization card. Specifically, the memorandum
said "If anyone puts you under pressure to sign
a union card, tell your supervisor and we’ll take
every legal step to see that the union stops."
This was, of course, after the contested election
and during the time when the possibility of a new
election was recognized by everyone. ACE/CO
witnesses testified that the company had received
reports that certain employees had been
threatened and pressured, and that this was a
protective measure.

Requests from an employer to report "threats"
to employees are not unlawful, as the ALJ
acknowledged. See Liberty House Nursing Homes,
245 NLRB 1194, 1197 (1979). But "threats" (which
had been addressed by an earlier February 2
memorandum) and "pressure" are two different
things, in spite of ACE/CO’s efforts to conflate
them here. A management witness testified that
one employee complained that he felt pressured
because the Union had visited his home 13 times,
but the witness admitted that the employee never
said that he felt threatened. The ALJ and the
Board found that the March 13 statement violated
section 8(a)(1), because it encouraged employees
to report union activity that is protected by the
Act. Such reporting, or the risk of it, has the
effect of discouraging the employees from
engaging in protected activity. C.O.W. Indus.,
Inc., 276 NLRB 960, 961 (1985).

ACE/CO’s only response to this claim is to urge
that its intention in distributing the leaflet
was to impress upon its employees the
significance of the authorization card and to
address possible coercion of its employees. But
its intent or purpose is irrelevant under section
8(a)(1) of the Act. See Carry Companies of
Illinois, Inc. v. NLRB, 30 F.3d 922, 934 (7th
Cir. 1994). Because the Board’s finding that the
memorandum was used to learn the identity of
union adherents in violation of the Act is
supported by substantial evidence, it too is
entitled to enforcement.

E. Employee Handbook

Last, we consider the Board’s conclusion that
ACE/CO violated section 8(a)(1) by stating in its
employee handbook its "intention to do everything
possible to maintain our company’s union-free
status for the benefit of both our employees and
[the company]." The handbook, including that
statement, was originally distributed in 1991,
more than three years before the union campaign.
It was contained in a section entitled "What
about a Union?" that described ACE/CO’s prior bad
history with a union and announced its opposition
to unions. The handbook was re-issued in February
1995, shortly after the election. This section
was unchanged.

The ALJ (and then the Board) found that this
statement, taken in the context of other unfair
labor practices, was itself unlawful because the
employees might understand it as conveying the
message that ACE/CO would use even illegal
tactics to keep a union out. The Board relied on
its decision in Gravure Packaging, Inc., 321 NLRB
1296 (1996), in which it had found a violation of
section 8(a)(1) when the employer told the
employees in the heat of an election campaign
that he would "do everything in his power" to
remain non-union. Id. at 1299. ACE/CO responds
that the more apt analogy for its case is the
Board’s decision in Ross Stores, Inc., 329 NLRB
No. 59, 1999 WL 820559 (Sept. 30, 1999). There,
the employer’s president said that "he would do
everything in his power to keep the union out of
the building." The Board found no objective basis
to conclude that the president’s statement
implied an unwillingness to take unlawful
actions. Id. at *4.

One thing seems clear--evaluations of statements
like the one before us must be made in the full
context of each case. While that normally
counsels deference to the Board, it does not
imply a rubber stamp. The objective evidence in
this case gives no reason to believe that the
employees would have perceived the ACE/CO
handbook statement as something indicating a
willingness to use unlawful tactics to keep the
union out. If this statement, drafted long before
any organizing campaign was on the horizon, is
unlawful because it does not expressly disclaim
all illegal activity, then no handbook would pass
muster unless it had such an express disclaimer.
In our view, the statute does not take such a dim
view of the law-abiding tendencies of employers,
and we will not do so either. We decline to
enforce this part of the Board’s order.

III

Last, we consider ACE/CO’s challenge to the
Board’s remedial order. Most of the order
addresses remedies for the violations we have
discussed; the section that relates to the
handbook, part 2(a), we set aside because we have
found that there was no underlying violation.
This leaves section 2(c), which reads as follows:

[ACE/CO must] [t]ake the following affirmative
action necessary to effectuate the policies of
the Act:

(c) Make whole all employees who were not
granted annual wage increases in 1995 to date in
the manner set forth in the remedy section of
[the judge’s decision, as modified by the Board’s
decision] (emphasis added).

ACE/CO argues that the Board did not have before
it the question of any wage increases for years
following 1995, and thus this order is inherently
overbroad. At most, it claims, the order should
address only the contested 1995 annual increase.

As we noted in Beverly, the Board’s choice of a
remedy is entitled to special deference. 2000 WL
1286248, at *24. Section 10(c) of the Act gives
the Board remedial authority "to take such
affirmative action . . . as will effectuate the
policies of [the Act]." 29 U.S.C. sec. 160(c). On
the other hand, a proposed remedy must be
tailored to fit the unfair labor practice it is
intended to redress. See Ron Tirapelli Ford, 987
F.2d at 437; see also Beverly, 2000 WL 1286248,
at *24. Whether or not the remedy for back wages
lies within the Board’s discretion depends on how
the underlying violation should be understood and
how certain limitations the Board placed on its
own order should be interpreted.

First, we consider the scope of the violation.
As we emphasized earlier, the key to the Board’s
finding of a violation was the factual
determination that ACE/CO had a normal practice
of granting some kind of annual, across-the-
board, wage increase to its employees. In that
sense, its complaint was focusing on 1995 only as
an accident of the time when the charges were
brought--April, May, and June of 1995. Its case
rested on the proposition that the company wanted
its employees to blame the union for the fact
that the established practice was abandoned
during the union campaign. No one necessarily
anticipated that the new election would still be
somewhere off in the future almost six years
later, as the year 2000 draws to a close, but
that is just the way things worked out. The Board
reasonably concluded that the background
presumption under which this order should operate
was that the former practice of annual increases
would go forward into the future.

Importantly, the order expressly did not bind
ACE/CO to a perpetual practice of granting this
particular kind of wage adjustment. To the
contrary, it provided that "[t]he exact amounts
of the wage increases due employees shall be
determined in compliance proceedings, and shall
be computed to the extent appropriate . . . . At
the compliance stage, [ACE/CO] shall be given the
opportunity to establish that even if it had
followed its normal practice concerning annual
wage increases, no increase would have been given
in a particular year."

At oral argument, we asked counsel for the
Board whether the language of the proviso meant
(1) that ACE/CO would have to live forever with
a presumption that its compensation system
included some measure of across-the-board
adjustments, even if cost-of-living increases or
other external factors led to no change in a
particular year, or (2) that ACE/CO would have
the opportunity during compliance proceedings to
show that it had completely abandoned across-the-
board adjustments as a tool of company policy, in
favor of the targeted merit, incentive, training,
and development raises it has touted in its
briefs. We were assured in unequivocal terms that
the Board’s order means the second of these two
options. Thus, if, for example, in compliance
proceedings relating to the year 1996, ACE/CO
introduced evidence that it had abjured across-
the-board raises forever, and the General Counsel
could not show that this was untrue or
pretextual, not only would that suffice to excuse
ACE/CO from making any adjustments for 1996, but
it would also establish this new baseline for
future years as well.

On that understanding, we find that the Board’s
order is entitled to enforcement. ACE/CO sees no
reason why hostility to unions would be seen to
have anything to do with its decisions not to
implement across-the-board raises for 1996 and
years following, but it is hard to see why it
would not. After all, the company’s policy
remains steadfastly anti-union (as we were also
told at oral argument); the pendency of these
unfair labor practice charges has given the
company a six-year reprieve from the possibility
of a union that arose when the Union won the
flawed January 1995 election; and the company may
still be taking the same position it did in the
spring of 1995 (i.e., it is the union’s fault
that employees no longer get across-the-board
wage adjustments). As long as ACE/CO has a fair
opportunity to prove the proposition it has
argued so strongly here--that general wage
increases are passe and it has found a better way
to maintain competitive wage levels and corporate
quality--the present order does no more than
require payment of the 1995 increase (which the
record as it stands shows would have been given
but for the anti-union actions) and any later
ones supported by the company’s normal practice
at that later time. We therefore find it
enforceable as so construed.

IV

For the reasons stated, we Enforce in part and
Remand in part for the Board to conform its order
to this opinion. Costs on appeal shall be borne
by ACE/CO.