N.L.R.B. v. Curwood Inc.
| Decision Date | 09 February 2005 |
| Docket Number | No. 03-3972.,03-3972. |
| Citation | 397 F.3d 548 |
| Parties | 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. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Irving E. Gottschalk, National Labor Relations Board, Milwaukee, WI, Aileen Armstrong, Daniel A. Blitz (Argued), National Labor Relations Board, Office of the General Counsel, Washington, DC, for Petitioner.
Kevin J. Kinney (Argued), Krukowski & Costello, Milwaukee, WI, for Respondent.
Thomas D. Allison (Argued), Allison, Slutsky & Kennedy, Chicago, IL, for Intervenor-Petitioner.
Before EASTERBROOK, WOOD, and WILLIAMS, Circuit Judges.
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 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.
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 distributed 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.
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.
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 submitted 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, 81 S.Ct. 1603, 6 L.Ed.2d 762 (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, 104 S.Ct. 2803, 81 L.Ed.2d 732 (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, 90 S.Ct. 1547, 26 L.Ed.2d 21 (1970); N.L.R.B. v. Mexia Textile Mills, Inc., 339 U.S. 563, 567, 70 S.Ct. 833, 94 L.Ed. 1067 (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.2d at 892. Therefore, despite Curwood's protestations, the mere fact that the events giving rise to this proceeding are complete does not render 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, 90 S.Ct. 1547, 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, 90 S.Ct. 1547, 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, 70 S.Ct. 833. 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.
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...
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