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 unionfree, 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 acrossthe-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-theboard 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 preunion 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 acrossthe-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-theboard, 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-theboard 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 acrossthe-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.