National Labor Relations Board v. Curwood Inc.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3972
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
and
GRAPHIC COMMUNICATIONS UNION,
FOX VALLEY LOCAL, 77-P, AFL-CIO, CLC,
Intervening Petitioner,
v.
CURWOOD INCORPORATED, a Division of
BEMIS COMPANY, INCORPORATED,
Respondent.
____________
Application for Enforcement of an Order
of the National Labor Relations Board.
No. 30-CA-15245-1
____________
ARGUED MAY 25, 2004—DECIDED FEBRUARY 9, 2005
____________
Before EASTERBROOK, WOOD, and WILLIAMS, Circuit
Judges.
WILLIAMS, Circuit Judge. An employer who learns its
employees are contemplating unionization need not re-
main silent. It must proceed with caution, however, lest
it violate the National Labor Relations Act (“NLRA”). In
this case, Curwood, Inc. attempted to counter a union
2 No. 03-3972
campaign in part by promising improvements in pension
benefits to employees in the voting unit. It also announced
benefits to a small group of employees that were excluded
from the unit. The National Labor Relations Board
(“Board”) ruled that these actions constituted several unfair
labor practices, and the Board now seeks to enforce its
order. With one exception, we grant the petition for enforce-
ment.
I. BACKGROUND
Curwood manufactures flexible film packaging for
snack foods at three facilities in Oshkosh, Wisconsin col-
lectively known as the South Campus. It also has other
plants throughout the United States. Historically, the
company had provided two different pension benefit
plans for its South Campus employees: the Bemis Hourly
Retirement Plan (“BHRP”) applied to hourly employees,
while salaried employees were covered by the Bemis
Retirement Plan (“BRP”). In most circumstances, the BRP
provided more generous pension benefits than did the
BHRP.
In September 1997, Curwood informed its hourly employ-
ees that BHRP benefits would increase by certain amounts
on January 1 over the following three years, including
January 1, 2000. Employees, though, remained concerned
about their pension benefits. In February or March of 2000,
the Graphic Communications Union (“Union”) began an
organizing drive at the South Campus, and pension benefits
were an important issue in the campaign.
When Curwood learned in March1 that employees were
distributing and signing union authorization cards, the
company became concerned. On April 7, Curwood distrib-
1
All references are to 2000 unless otherwise indicated.
No. 03-3972 3
uted a letter to its South Campus employees which began,
“We are aware that union authorization cards are being
circulated at the plants and at organizational meetings.”
The letter informed employees that the company had
undertaken to “review and improve the current [pension]
benefits effective January 2001,” and it anticipated that
pension improvements would be announced in the spring or
summer of 2000. The letter concluded by urging employees
not to sign union authorization cards. Curwood distributed
another memorandum to its South Campus employees on
May 1. This letter stated the company had compared the
BRP and BHRP and concluded that the BRP would be an
“improvement” over the BHRP.
A week later, on May 8, the Union filed petitions seek-
ing to represent South Campus production employees.
Several weeks later, Curwood notified South Campus
employees in a letter dated May 30 that it was “pleased
to announce” that the (more generous) BRP would be
“implemented effective January 1, 2001.” On June 12,
Curwood distributed a memorandum announcing that
its plan to transfer production and maintenance em-
ployees to the BRP had a target implementation date of
January 1, 2001. The letter also stated that any changes
the company might make to the BHRP while the rep-
resentation petition was pending might violate the law.
On June 20, the Regional Director issued a decision and
direction of election which scheduled an election for July 20-
21. Although Curwood had taken the position that main-
tenance employees should be included in the voting unit,
the decision excluded the maintenance employees from the
unit. On July 13, one week before the election, Curwood
distributed a letter announcing an increase in BHRP
benefits to the now-excluded maintenance employees.
Production employees found copies of this letter taped
to their work areas and on bulletin boards and desks.
4 No. 03-3972
The Union lost the election by a vote of 386 to 257. It then
filed objections and alleged Curwood had committed unfair
labor practices. After a hearing, the administrative law
judge (“ALJ”) issued a decision finding that Curwood
violated the NLRA and that the election should be set aside.
The Board affirmed the ALJ’s decision that Curwood
committed unfair labor practices by: (1) announcing and
promising benefits to discourage union support on April 7,
May 30, and June 12; (2) blaming the union for the absence
of further benefits on June 12; and (3) making an implicit
promise on July 13 of enhanced transitional pension
benefits. The Board then brought this action to enforce its
order. The election objections are not before us.
II. ANALYSIS
A. Article III Case or Controversy
We must first assure ourselves that this matter pre-
sents a justiciable case or controversy within the scope of
Article III, as it is “well-established that the existence of a
case and controversy is a prerequisite for the exercise
of federal judicial power under Article III.” Sprint Spectrum
L.P. v. City of Carmel, Ind., 361 F.3d 998, 1002 (7th Cir.
2004). This limitation prohibits us from rendering opinions
upon moot questions and from issuing advisory opinions.
See Worldwide Street Preachers’ Fellowship v. Peterson, 388
F.3d 555, 558 (7th Cir. 2004); Wisconsin Right to Life, Inc.
v. Schober, 366 F.3d 485, 487 (7th Cir. 2004). Curwood
contends that no case or controversy exists, maintaining
that the Board’s order does not require Curwood to take any
affirmative action beyond the posting of a notice. It also
contends that the matter is moot.
Because the Board partially modified the ALJ’s recom-
mended order, no single page in the Board’s decision set
forth the entire order. At our request, the Board submit-
No. 03-3972 5
ted a “clean copy” of its order after oral argument. In
addition to posting a notice, the order also directs Curwood
to cease and desist from certain unfair labor practices found
by the Board, namely, from: “(a) Announcing and promising
improvements in pension benefits in order to discourage
union support”; “(b) Blaming the Union for the absence of
further benefits”; and “(c) In any like or related manner
interfering with, restraining, or coercing employees in the
exercise of their Section 7 rights.”
After reviewing this order, we are satisfied that the
Board’s request for enforcement does not seek an ad-
visory opinion. A judgment is “advisory” only when it
does not bind the unsuccessful litigant. DeSilva v.
DiLeonardi, 125 F.3d 1110, 1113 (7th Cir. 1997). Our
enforcement of a cease and desist order, however, serves
to bind an employer. Enforcing such an order requires
an employer to “conform his conduct to the norms set out in
the Act.” Int’l Ladies’ Garment Workers’ Union v. N.L.R.B.,
366 U.S. 731, 740 (1961). Notably, the failure to abide by a
cease and desist order enforced by a court of appeals
renders an employer subject to contempt penalties. 29
U.S.C. § 160(e), (f); Sure-Tan, Inc. v. N.L.R.B., 467 U.S. 883,
904 n.13 (1984); N.L.R.B. v. P*I*E Nationwide, Inc., 894
F.2d 887, 890 (7th Cir. 1990).
Furthermore, compliance with a Board cease and de-
sist order does not render a cause moot. N.L.R.B. v.
Raytheon Co., 398 U.S. 25, 27 (1970); N.L.R.B. v. Mexia
Textile Mills, Inc., 339 U.S. 563, 567 (1950). After all, “[i]f
a cease and desist order became moot by virtue of the
respondent’s discontinuing the specific illegalities that gave
rise to the order, such orders would have no force
at all—the respondent would comply for a day, declare
the order moot, and resume its violations with impu-
nity.” P*I*E Nationwide, 894 F.3d at 892. Therefore, despite
Curwood’s protestations, the mere fact that the events
giving rise to this proceeding are complete does not render
6 No. 03-3972
this matter moot. We recognize that the Supreme Court has
noted that situations may exist where an enforcement
proceeding becomes moot because no reasonable expectation
exists that a wrong will be repeated, Raytheon, 398 U.S. at
27, but we have no reason to believe that this is such a case,
as, assuming for the moment that an unfair labor practice
did occur here, we simply cannot be assured that the acts
will not be repeated again. The NLRA “is not designed
merely to protect a particular election or organizational
campaign,” Raytheon, 398 U.S. at 27, and “the Board is
entitled to have the resumption of the unfair practice
barred by an enforcement decree.” Mexia Textile Mills, 339
U.S. at 567. We regularly review cease and desist orders,
e.g., Bloomington-Normal Seating Co. v. N.L.R.B., 357 F.3d
692 (7th Cir. 2004); Fleming Companies, Inc. v. N.L.R.B.,
349 F.3d 968 (7th Cir. 2003); N.L.R.B. v. Cook County
School Bus, Inc., 283 F.3d 888 (7th Cir. 2002), and, armed
with the assurance that this order presents us with a
justiciable case or controversy, we will proceed to do so
here.
B. Alleged Unfair Labor Practices
When reviewing a Board decision, we review factual
findings to determine if they are “supported by substantial
evidence on the record as a whole.” ATC Vancom of
Cal., L.P. v. N.L.R.B., 370 F.3d 692, 695 (7th Cir. 2004)
(citations omitted). “Substantial evidence” is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Am. Grain Trimmers, Inc. v. Office of
Workers’ Comp. Programs, 181 F.3d 810, 817 (7th Cir. 1999)
(en banc) (citations omitted). Our review of the Board’s legal
conclusions asks whether they have “a reasonable basis in
the law.” ATC Vancom, 370 F.3d at 695. Where the Board
adopts the ALJ’s findings of fact and conclusions of law, as
here, it is the ALJ’s determinations that we review. SCA
No. 03-3972 7
Tissue N. Am. LLC v. N.L.R.B., 371 F.3d 983, 988 (7th Cir.
2004).
1. Announcing benefits to production employees
Curwood first challenges the finding that its letters to
production employees on April 7, May 30, and June 12
improperly promised benefits with the intention of in-
terfering with employees’ Section 7 rights. Section 7 of
the National Labor Relations Act (29 U.S.C. § 157) provides
employees with certain rights, including the right of self-
organization and the right to form labor organizations.
Section 8(a)(1) of the Act makes it an unfair labor practice
for an employer “to interfere with, restrain, or coerce
employees in the exercise” of their Section 7 rights. 29
U.S.C. § 158(a)(1).
The Supreme Court has interpreted Section 8(a)(1) to
prohibit “conduct immediately favorable to employees which
is undertaken with the express purpose of impinging upon
their freedom of choice for or against unionization and is
reasonably calculated to have that effect.” N.L.R.B. v.
Exchange Parts Co., 375 U.S. 405, 409 (U.S. 1964). In
holding unlawful an employer’s grant of benefits in re-
sponse to a union campaign, the Court reasoned:
[t]he danger inherent in well-timed increases in
benefits is the suggestion of a fist inside the velvet
glove. Employees are not likely to miss the infer-
ence that the source of benefits now conferred is
also the source from which future benefits must
flow and which may dry up if it is not obliged.
Id.Not all agree with the Exchange Parts premise that
employees receiving benefits from an employer in response
to a union campaign are “intimidated by the figurative
‘fist inside the velvet glove.’ ” Skyline Distribs. v. N.L.R.B.,
8 No. 03-3972
99 F.3d 403, 408-10 (D.C. Cir. 1996) (discussing criticism of
Exchange Parts ruling); see, e.g., Derek C. Bok, The Regula-
tion of Campaign Tactics in Representation Elections Under
the National Labor Relations Act, 78 Harv. L. Rev. 38, 113-
15 (1964). Curwood, however, is not one of Exchange Parts’s
detractors.2 Curwood agrees with the Exchange Parts
premise but argues that only a benefit promised or con-
ferred after a representation petition has been filed (i.e.,
during the “critical period”) can constitute an unfair labor
practice. Thus, Curwood reasons, because it sent the first
letter at issue before the union filed a formal representation
petition, the company’s conduct cannot violate Section
8(a)(1). Our threshold question, then, is whether an em-
ployer’s announcement of a benefit before a representation
petition has been filed can ever violate Section 8(a)(1).
Curwood maintains that Exchange Parts resolves this
question with a definitive “no,” pointing to the following
passage:
We think the Court of Appeals was mistaken in
concluding that the conferral of employee benefits
while a representation election is pending, for the
purpose of inducing employees to vote against the
union, does not “interfere with” the protected right
to organize.
Exchange Parts, 375 U.S. at 409 (emphasis added). Curwood
contends that the Court’s use of the phrase “while a repre-
sentation election is pending” means that only the conferral
or announcement of benefits after a representation petition
has been filed can violate Section 8(a)(1). We do not agree
that Exchange Parts stands for the bright-line rule Curwood
advocates. Although that case held that announcing
2
Even if Curwood disagreed with Exchange Parts, of course,
it remains the law until the Supreme Court or National Labor
Relations Board directs otherwise.
No. 03-3972 9
benefits after a petition was filed for the purpose of induc-
ing employees to vote in favor of unionization was improper,
the Court made no comment whatsoever as to the lawful-
ness of announcements that take place before the filing of
a petition. Neither Exchange Parts nor N.L.R.B. v. Wis-Pak
Foods, Inc., 125 F.3d 518 (7th Cir. 1997), the other case on
which Curwood relies, involved an alleged promise of
benefits before a petition was filed.
After all, the alleged violation here is a violation of the
National Labor Relations Act. Curwood is charged with
interfering with rights employees possess under Section 7 of
the Act. Yet nothing in the Act limits Section 7 rights to the
critical period. Curwood acknowledges, as it must, that
employees have Section 7 rights at all times. There
is simply nothing in Sections 7 or 8(a)(1) of the Act that
conditions the finding of an unfair labor practice on the date
when a representation petition is filed, and Curwood can
point us to no line of cases that condition an employee’s
Section 7 rights on this date. Cf. Technodent Corp., 294
NLRB 924 (1989) (issuing new employee handbook to
discourage union activity, before petition filed, supported §
8(a)(1) violation); Lomasney Combustion, Inc., 273 NLRB
1241 (1984) (interrogation before petition filed).3 It would
seem odd indeed to allow an employer to trample over an
employee’s Section 7 rights with impunity, so long as it does
so the day (or minute) before the representation petition is
filed.
3
We recognize that when analyzing objections to elections, the
Board has stated a showing must exist that the alleged objec-
tionable conduct took place during the critical period. Gibraltar
Steel Corp., 323 NLRB 601, 603 (1997). The test for whether
conduct interferes with the “laboratory conditions” for an election,
however, “is considerably more restrictive than the test of conduct
which amounts to interference, restraint, or coercion which
violates Section 8(a)(1),” Dal-Tex Optical Co., 137 NLRB 1782,
1786-87 (1962), and the election proceeding is not before us.
10 No. 03-3972
Rejecting a rigid dichotomy that would prevent us from
even considering whether increasing benefits before the
critical period violates Section 8(a)(1) is consistent with the
approach taken by our sister circuits and the Board itself.
See, e.g., N.L.R.B. v. Rich’s of Plymouth, Inc., 578 F.2d 880,
883 (1st Cir. 1978) (pre-petition promise of benefit unlaw-
ful); N.L.R.B. v. Fremont Mfg. Co., 558 F.2d 889, 891 (8th
Cir. 1977) (finding improper pre-petition grant of benefits
conferred soon after employer learned employees were
distributing authorization cards); N.L.R.B. v. WKRG-TV,
470 F.2d 1302, 1306-07 (5th Cir. 1973) (pre-petition promise
of benefits unlawful); Agrigeneral Co., 320 NLRB 943 (1996)
(same); Triec, Inc., 300 NLRB 743 (1990), enf’d, 946 F.2d
895 (6th Cir. 1991) (Table) (finding pre-petition announce-
ment and implementation of benefits unlawful after
employer learned employees had signed authorization
cards); Sarah Neuman Nursing Home, 270 NLRB 663, 663,
678 (1984) (announcing benefits before petition filed to
influence election unlawful).
We reject Curwood’s contention that Exchange Parts
applies only to employer grants, promises, or announce-
ments of benefits made after a representation petition was
filed. Of course, not all announcements or promises
of benefit are unlawful. Such promises or grants are
unlawful only when done in order to discourage employee
support of a union. Van Vlerah Mech., Inc. v. N.L.R.B.,
130 F.3d 1258, 1262 (7th Cir. 1998); Wis-Pak Foods, 125
F.3d at 521. Thus, for example, an employer does not
commit an unfair labor practice when it is merely follow-
ing an established practice of pay raises predating a
union campaign, or when it has some other “union-neutral
justification” for the increase. N.L.R.B. v. Don’s Olney
Foods, Inc., 870 F.2d 1279, 1285 (7th Cir. 1997). Curwood,
however, acknowledged that it sent the April 7, May 30, and
June 12 letters to discourage its employees from supporting
the union, and it did not argue to us that it sent the letters
No. 03-3972 11
for a “union-neutral” reason. Rather, it rested its case on its
erroneous contention that only post-representation promises
of benefits can be unlawful.
We will nonetheless briefly address why the Board
was justified in finding that Curwood’s purpose inter-
fered with its employees’ Section 7 rights. We first turn
to the April 7 letter. In the very first sentence, Curwood
said to its employees, “We are aware that union author-
ization cards are being circulated.” It then declared, for
the first time, that it anticipated pension improvements
would be announced later in the spring or summer, and
benefits would continue to be made without union interven-
tion. This letter marked the first time that Curwood had
announced a pension improvement since 1997. The text of
the letter makes clear that Curwood promised these
benefits precisely because the union was organizing, a point
with which Curwood does not quarrel.
Curwood sent the May 30 and June 12 letters after
the union filed its representation petition on May 8.
Curwood reasoned that these letters merely reiterated
the lawful (so it argued) pre-petition announcement of
benefits contained in the April 7 letter. Because we agree
that substantial evidence supports the finding that the
promise of benefits contained in the April 7 letter vio-
lates Section 8(a)(1), Curwood’s argument with respect
to the May 30 and June 12 letters fails. Both the May 30
and June 12 letters further elaborate on the new pension
benefit plan. The May 30 letter marked the first time
Curwood announced to bargaining unit employees that they
would be transferred into the BRP effective January 1,
2001, and the June 12 letter explicitly stated the new
benefit was “clearly an improvement” to the employees’
current retirement benefit. Moreover, Curwood did not
argue to us that it had made a decision to implement
these benefits before the union activity began or that
12 No. 03-3972
it would have taken the same action in the absence of union
activity for some other reason. We thus find that substan-
tial evidence supports the Board’s finding that the April 7,
May 30, and June 12 letters constituted unfair labor
practices.
2. Blaming the union for the absence of future benefits
We also agree that substantial evidence supports the
Board’s finding that Curwood’s June 12 letter unlawfully
blamed the Union for the company’s inability to grant
benefits. During a union organizing campaign, an employer
is to conduct “business as usual” with respect to its benefits
decisions. Beverly California Corp. v. N.L.R.B., 227 F.3d
817, 839 (7th Cir. 2000). Blaming a union for an employer’s
refusal to improve benefits during a union organizing drive
violates Section 8(a)(1). N.L.R.B. v. Ind. Erectors, Inc., 712
F.2d 1131, 1135 (7th Cir. 1983); Miller Waste Mills, Inc.,
334 NLRB 466, 467-69 (2001), enf’d, 315 F.3d 951 (8th Cir.
2003); Seda Specialty Packaging Corp., 324 NLRB 350, 351
(1997).
Curwood’s June 12 letter to employees stated in part:
Because of the pending petition, federal labor law
restricts our ability to change, add to or subtract
from the various components of both the BHRP, as
well as the BRP. For example, while no one can
debate the advantages of adding additional dollars
to the current BHRP funding level, for the Com-
pany to make such changes, while the petition is
pending, the law may be violated. If an increase is
warranted, then the Company would be restricted
from making such an improvement at this time.
Curwood contends that this letter constituted protected
free speech, see 29 U.S.C. § 158(c)(1), and merely conveyed a
correct statement of the law to its employees. While it is
true that under some circumstances, an employer can
No. 03-3972 13
postpone a benefit increase decided on before a union
campaign, it can only do so if “it ‘[makes] clear’ to employ-
ees that the adjustment would occur whether or not they
select a union, and that the ‘sole purpose’ of
the adjustment’s postponement is to avoid the appear-
ance of influencing the election’s outcome.” KMST-TV,
Channel 46, 302 NLRB 381, 382 (1991) (quoting Atlantic
Forest Prods., Inc., 282 NLRB 855, 858 (1987)); accord
Simpson Elec. Co. v. N.L.R.B., 654 F.2d 15, 17 (7th Cir.
1981); Noah’s Bay Area Bagels, LLC, 331 NLRB 188, 190-91
(2000). Here, though, Curwood was not “postponing” a
benefit increase. As we have already discussed, Curwood’s
announcement of improved pension benefits came only after
it learned of union organization activity. Curwood does not
contend that it had already decided to increase BHRP
funding before the union campaign or that it was simply
postponing a regularly scheduled increase. This is not a
case where an employer discussed benefits that were
normally due and then carefully told its employees it
needed to postpone them in order to avoid the appearance
of election interference. Rather, Curwood raised the possi-
bility of new benefits while a petition was pending, and
then blamed the union for its inability to provide them.
Therefore, we conclude that the Board was entitled to find
that the June 12 letter improperly blamed the presence of
the union for its inability to increase benefits.
3. Letter to non-unit employees
Finally, we turn to Curwood’s announcement to main-
tenance employees. Only production employees were to vote
in the election scheduled to begin July 20; maintenance
employees had been specifically excluded from the voting
unit. On July 13, 2000, in a document addressed to only the
non-voting maintenance employees, Curwood announced a
“transitional BHRP benefit improvement” for maintenance
14 No. 03-3972
employees. The Board affirmed the ALJ’s conclusion that
this announcement violated Section 8(a)(1) as an improper
implied promise that the same benefits would come to
production employees if they rejected the union.4 The Board
urges us to uphold this finding but does not cite any
authority to support its position.
To the extent the Board’s position is that if a union
attempts to organize one group of workers, any increase or
announcement of an increase in benefits to any other group
of workers automatically constitutes an unlawful labor
practice, we reject it. The Board’s decision in Springfield
Jewish Nursing Home for the Aged, Inc., 292 NLRB 1266(1989), is instructive. There, an administrative law judge
ruled that an employer violated Section 8(a)(1) by granting
wage increases to nonbargaining unit nurses prior to an
election in order to influence bargaining unit employees and
to dissuade them from voting in favor of the union. In
reasoning similar to that of the ALJ here, the ALJ in
Springfield Jewish Nursing Home reasoned, “The fact
that this increase was given only to selected nonunit
personnel is quite immaterial, because it was clear that
news of the Respondent’s willingness to address an internal
pay inequity at issue in the campaign would filter through
to bargaining unit employees, and in fact it did.” Id. at
1273-74. The Board, however, disagreed. It ruled that the
record supported the employer’s contention that it promul-
gated the increase to remain competitive within its market,
stating “we cannot find that the Respondent increased the
wages of nonunit employees to discourage employees within
the bargaining unit from joining, supporting, or assisting
the Union.” Id. at 1266.
4
As the ALJ noted, the Board’s General Counsel did not al-
lege that the July 13 announcement constituted an unlawful
discriminatory grant of benefits.
No. 03-3972 15
As is the case with voting unit employees, then, an
increase in benefits to nonunit employees before an election
is not per se unlawful. Indeed, the Board has stated that
“[a]bsent an unlawful motive, an employer is privileged to
give wage increases to his unorganized employees, at a time
when his other employees are seeking to bargain collec-
tively through a statutory representative.” Empire Pacific
Inds., 257 NLRB 1425, 1427 (1981) (citation omitted); see
also Overnite Transp. Co., 280 F.3d 417, 431 (4th Cir. 2000)
(stating, in collective bargaining context, “there is no duty
to grant to union employees every benefit that is granted to
non-union employees”); Sun Transp., Inc., 2003 WL
22102496, at *4 (N.L.R.B. 2003) (“the Board has long held
that employers may offer different benefits to represented
and unrepresented groups as part of its bargaining strat-
egy.”)
We reject any contention that granting benefits to non-
unit employees during a union organizing campaign is
per se an unfair labor practice. Similarly, the announcement
of increased benefits to non-unit employees, standing alone,
cannot violate Section 8(a)(1). It would make no sense to say
that an employer could grant benefits to non-unit employ-
ees, but it could not tell them.
The test for determining whether an employer vio-
lates Section 8(a)(1) asks whether the employer’s conduct
had a reasonable tendency to interfere with or coerce
employees in the exercise of their Section 7 rights. Multi-Ad
Servs., Inc. v. N.L.R.B., 255 F.3d 363, 372 (7th Cir. 2001);
N.L.R.B. v. Joy Recovery Tech. Corp., 134 F.3d 1307, 1313
(7th Cir. 1998). There is no contention in this case that
Curwood interfered with its maintenance employees’ rights.
Here, then, the proper analysis must ask whether
Curwood’s letter to non-voting maintenance employees had
a reasonable tendency to interfere with the production
employees’ rights to self-organization and to form labor
organizations.
16 No. 03-3972
We are concerned that the language of the Board’s
order and ALJ’s ruling adopted by the Board may not be
consistent with this analysis. As they currently stand, a
reader may take either or both to mean that any increase in
benefits to non-unit employees during a union campaign, or
the announcement of such benefits to non-unit employees,
is per se unlawful. As we discussed, this cannot be the case.
We will thus remand this matter for clarification in light of
our opinion.
On remand, the Board may still find that the letter to
maintenance employees had a reasonable tendency to
interfere with the production employees’ exercise of their
Section 7 rights. The ALJ had pointed to the letter’s tim-
ing one week before the election, a finding that it was
“widely distributed,” and the testimony of a manage-
ment employee that he knew the letter was likely to be
widely distributed. Furthermore, unlike the employer
in Springfield Jewish Nursing Homes, Curwood did not
argue to us that its grant was justified by a legitimate
business reason, and Curwood knew that pension benefits
were an important issue in the campaign. On the other
hand, the letter was addressed only to maintenance employ-
ees, it did not mention the union, and there is no evidence
in the record that production employees were responsible
for the letter’s distribution. In addition, the ALJ stated in
his reasoning that Curwood did nothing to limit dissemina-
tion of the announcement, but the Curwood Vice President
for Human Resources testified that the letter was given to
maintenance employees directly, and the same employee on
whom the ALJ relied testified that the letters he saw posted
in the production employees’ area had been taken down by
the next night.
Even if the July 13 letter had a reasonable tendency to
interfere with production employees’ Section 7 rights, we
are concerned that the language of the Board’s order may be
misinterpreted. We recognize that the Board’s choice
No. 03-3972 17
of remedy is entitled to deference. N.L.R.B. v. Aluminum
Casting & Eng’g Co., 230 F.3d 286, 295 (7th Cir. 2000).
That remedy, however, must be tailored to fit the unfair
labor practice it is intended to redress. Id. (citations
omitted). Although the Board found unfair labor practices
based on announcements of benefits to both unit and non-
unit employees, the relevant portion of the Board’s order as
it currently stands contains only a blanket statement
directing Curwood to cease and desist from “Announcing
and promising improvements in pension benefits in order
to discourage union support.” No distinction is drawn
between the announcement of benefits to the voting produc-
tion employees and the announcement of benefits to non-
voting maintenance employees. We are concerned that later,
when the order is posted, a reader might take it to mean
that a company cannot give or announce any increase in
benefits to maintenance employees. Again, interference
with maintenance employees’ Section 7 rights is not at
issue. The order, however, does not make clear that an-
nouncing benefits to maintenance employees is unlawful
only when done in a manner that will coerce production
employees. Therefore, with respect to the Board’s finding
that the July 13 letter to maintenance employees consti-
tuted an unfair labor practice, we remand to the Board for
reconsideration and clarification of its opinion and order in
light of our discussion.
III. CONCLUSION
For the foregoing reasons, the order of the Board is
ENFORCED in part and VACATED in part, and the matter
is REMANDED to the Board for further proceedings consis-
tent with this opinion.
18 No. 03-3972
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-9-05