230 F.3d 286 (7th Cir. 2000)
National Labor Relations Board, Petitioner,v.Aluminum Casting & Engineering Co., Inc., Respondent.
No. 99-4187
In the  United States Court of Appeals  For the Seventh Circuit
Argued September 6, 2000Decided October 13, 2000

On Application for Enforcement of an  Order of the National Labor Relations Board.  Nos. 30-CA-12855, et al.[Copyrighted Material Omitted]
Before Manion, Kanne, and Diane P. Wood, Circuit  Judges.
Diane P. Wood, Circuit Judge.


1
This case has lain  in labor relations limbo for nearly six years,  between a union victory in an election that was  ultimately set aside and the holding of a new  election. In the meantime, the company has (quite  happily, we may assume) been operating union-  free, and the National Labor Relations Board (the  Board) has been pursuing a series of unfair labor  practice charges based on conduct both before and  after the contested election. Eventually the  Board found that the company, Aluminum Casting &  Engineering Co., or ACE/CO, had committed a  number of violations of the National Labor  Relations Act, sec.sec. 8(a)(1) and (3), 29  U.S.C. sec.sec. 158(a)(1) and (3), and it issued  an order requiring ACE/CO to cease and desist and  to take certain affirmative steps to cure those  violations. Aluminum Casting & Engineering Co.,  328 NLRB No. 2, 1999 WL 220279 (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.


2
* 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.


3
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."


4
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

5
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, 227 F.3d 817, 829-30 (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, 227 F.3d 817, 829-30. 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,  227 F.3d 817, 829-30; 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, 227 F.3d at 846-47;  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

6
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.


7
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).


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


9
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.


10
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:


11
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.


12
Aluminum Casting, 1999 WL 220279, 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.


13
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


14
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.


15
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.


16
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.


17
Id. A number of additional statements along these  lines were also made.


18
In our view, these statements provided ample  evidentiary support for the ALJ's finding,  affirmed by the Board, that ACE/CO indeed had a  regular practice of giving annual across-the-  board wage increases when economic circumstances  warranted; the evidence showed that ACE/CO  usually concluded that circumstances did warrant  an increase (before the contested 1995 decision,  it reached this conclusion in every year except  1991). It is also notable that the company  continuously reaffirmed its normal practice to  the employees throughout the election campaign.  It did not develop any reluctance to give an  across-the-board increase until after it learned  the results of the January 5-6, 1995, election.  The Board was entitled to conclude that ACE/CO's  current explanation for the decision not to give  an early 1995 general wage adjustment--its desire  to abandon across-the-board measures in favor of  a purely merit and incentive-based system--was an  afterthought, at least as applied to 1995.


19
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


20
[i]n order not to unfairly influence a union  election, the employer must maintain the pre-  union status quo respecting employee benefits,  viewed dynamically; that is, expectations of  upcoming benefits created by the employer either  by promises or through a regular pattern of  granting benefits cannot be disappointed without  proof of a union-neutral justification.


21
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.


22
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.)


23
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


24
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?


25
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.


26
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.


27
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?


28
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.


29
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.


30
Finally, the ALJ and the Board concluded that  at least as of 1995, the merit and incentive  programs were still complementary to the across-  the-board adjustments, and they were not perfect  substitutes for the established system. They were  impressed by the fact that in all of its  explanations for its failure to adjust the wages,  ACE/CO never once mentioned the development of an  alternative system; instead, it just blamed the  union. In fact, in meetings held in November 1994  and December 1994, it discussed both its expanded  training and development programs and its  intention to give the annual wage increase.


31
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

32
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.


33
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, 227 F.3d at 839- 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

34
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).


35
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

36
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.


37
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).


38
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

39
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.


40
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.


41
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

42
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


43
[ACE/CO must] [t]ake the following affirmative  action necessary to effectuate the policies of  the Act


44
(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).


45
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.


46
As we noted in Beverly, the Board's choice of a  remedy is entitled to special deference. 227 F.3d at 846-47. 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, 227 F.3d at 846-47. 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.


47
First, we consider the scope of the violation.  As we emphasized earlier, the key to the Board's  finding of a violation was the factual  determination that ACE/CO had a normal practice  of granting some kind of annual, across-the-  board, wage increase to its employees. In that  sense, its complaint was focusing on 1995 only as  an accident of the time when the charges were  brought--April, May, and June of 1995. Its case  rested on the proposition that the company wanted  its employees to blame the union for the fact  that the established practice was abandoned  during the union campaign. No one necessarily  anticipated that the new election would still be  somewhere off in the future almost six years  later, as the year 2000 draws to a close, but  that is just the way things worked out. The Board  reasonably concluded that the background  presumption under which this order should operate  was that the former practice of annual increases  would go forward into the future.


48
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."


49
At oral argument, we asked counsel for the  Board whether the language of the proviso meant  (1) that ACE/CO would have to live forever with  a presumption that its compensation system  included some measure of across-the-board  adjustments, even if cost-of-living increases or  other external factors led to no change in a  particular year, or (2) that ACE/CO would have  the opportunity during compliance proceedings to  show that it had completely abandoned across-the-  board adjustments as a tool of company policy, in  favor of the targeted merit, incentive, training,  and development raises it has touted in its  briefs. We were assured in unequivocal terms that  the Board's order means the second of these two  options. Thus, if, for example, in compliance  proceedings relating to the year 1996, ACE/CO  introduced evidence that it had abjured across-  the-board raises forever, and the General Counsel  could not show that this was untrue or  pretextual, not only would that suffice to excuse  ACE/CO from making any adjustments for 1996, but  it would also establish this new baseline for  future years as well.


50
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 pass  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

51
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.

