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 remain 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

1 All references are to 2000 unless otherwise indicated.

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 enforcement.

I. BACKGROUND

Curwood manufactures flexible film packaging for

snack foods at three facilities in Oshkosh, Wisconsin collectively 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 employees 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-
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 seeking 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 employees 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 representation 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 maintenance 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 presents 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 recommended 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 advisory 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 desist 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 impunity.” 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 interfering 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 selforganization 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 response 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 inference 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

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.

99 F.3d 403, 408-10 (D.C. Cir. 1996) (discussing criticism of

Exchange Parts ruling); see, e.g., Derek C. Bok, The Regulation 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 conferred 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 employer’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 representation 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
No. 03-3972 9

3 We recognize that when analyzing objections to elections, the

Board has stated a showing must exist that the alleged objectionable 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.

benefits after a petition was filed for the purpose of inducing employees to vote in favor of unionization was improper,

the Court made no comment whatsoever as to the lawfulness 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.
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 unlawful); 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 announcement 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 announcements 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 following 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 interfered 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 authorization 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 intervention. 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 violates 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 substantial 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 Company 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 employees 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 appearance 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 possibility 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 maintenance 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

4 As the ALJ noted, the Board’s General Counsel did not allege that the July 13 announcement constituted an unlawful

discriminatory grant of benefits.

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 promulgated 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.
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 collectively 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 strategy.”)

We reject any contention that granting benefits to nonunit 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 employees, but it could not tell them.

The test for determining whether an employer violates 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 timing one week before the election, a finding that it was

“widely distributed,” and the testimony of a management 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 employees, 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 dissemination 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 nonunit 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 production employees and the announcement of benefits to nonvoting 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 announcing 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 constituted 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 consistent 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