United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 7, 2006 Decided February 2, 2007
No. 05-1216
GUARDSMARK, LLC,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with
05-1236 and 05-1272
On Petitions for Review and Cross-Application for
Enforcement of an Order of the
National Labor Relations Board
Edward R. Young argued the cause and filed the briefs for
petitioner Guardsmark, LLC.
Maryann Parker argued the cause for petitioner Service
Employees International Union, Local 24/7. With her on the
briefs were Judith A. Scott and Craig Becker. Orrin Baird
entered an appearance.
Ruth E. Burdick, Attorney, National Labor Relations Board,
2
argued the cause for respondent. With her on the brief were
Ronald E. Meisburg, General Counsel, John H. Ferguson,
Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, and Julie B. Broido, Senior
Attorney.
Edward R. Young was on the brief for intervenor
Guardsmark, LLC.
Before: HENDERSON, TATEL and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Under National Labor Relations
Board case law, where an employer promulgates work rules
“likely to have a chilling effect on Section 7 rights, the Board
may conclude that their maintenance is an unfair labor practice,
even absent evidence of enforcement.” Lafayette Park Hotel,
326 N.L.R.B. 824, 825 (1998), enforced mem., No. 98-1625,
1999 WL 1215578, at *1 (D.C. Cir. Nov. 26, 1999). Applying
this principle, the Board found that two of petitioner’s work
rules—one requiring that employees register their complaints
only through the chain of command and the other barring
solicitation—violated the National Labor Relations Act. The
Board found that a third rule—barring “fraternization”—was
lawful because the Board thought employees would not
reasonably interpret it to interfere with protected activities, a
ruling the Union now challenges. Concluding that the Board
faithfully applied its case law to the chain-of-command and
solicitation rules, we deny the employer’s petition for review.
But because the Board’s decision with respect to the
fraternization rule was unreasonable, we grant the Union’s
petition.
3
I.
Petitioner Guardsmark, LLC, a nationwide company
providing security guard services, distributes a handbook to all
uniformed employees. Three of the handbook’s rules are at
issue here: a chain-of-command rule telling employees “not [to]
register complaints with any representative of the client”; a
solicitation rule prohibiting solicitation and distribution of
literature “at all times while on duty or in uniform”; and a
fraternization rule prohibiting employees from “fraterniz[ing] on
duty or off duty” with other employees. Guardsmark, LLC, 344
N.L.R.B. No. 97, at *1 (June 7, 2005).
Focusing on events that occurred in Guardsmark’s San
Francisco office, the Service Employees International Union
Local 24/7 filed unfair labor practice charges with the National
Labor Relations Board, and the Board’s General Counsel then
issued a complaint, alleging that all three rules violate section
8(a)(1) of the National Labor Relations Act, 29 U.S.C.
§§ 151-169, which makes it an unfair labor practice for
employers “to interfere with, restrain, or coerce employees in
the exercise [of their section 7 rights].” Id. § 158(a)(1). Section
7, in turn, provides that employees:
shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, and shall also
have the right to refrain from any or all of such
activities . . . .
Id. § 157. The General Counsel charged that Guardsmark’s
rules discourage protected labor activity, such as enlisting the
4
support of customers for work grievances, soliciting and
distributing literature while off duty, and meeting with other
employees to discuss terms and conditions of employment.
Guardsmark, 344 N.L.R.B. No. 97, at *14-15. Defending its
three rules before the ALJ, Guardsmark argued that the chain-of-
command rule applies only while employees are on duty; that
the solicitation rule does not, as the company had informed
some employees, apply to off-duty employees in uniform who
cover up the company insignia; and that the fraternization rule
targets only personal entanglements that “could cloud [a security
guard’s] judgment,” thereby compromising the company’s goal
of providing reliable security to its clients. Admin. Hr’g Tr.
189, April 29, 2004.
The ALJ agreed with the General Counsel with respect to
the chain-of-command rule because, according to the ALJ, the
rule prevents employees from seeking client assistance
regarding any aspect of their employment. Guardsmark, 344
N.L.R.B. No. 97, at *14. With respect to the other rules, the
ALJ agreed with Guardsmark. The solicitation rule, the ALJ
found, clearly communicates to employees that they may not
engage in unofficial activity while in uniform, and thus, “it
seems reasonable to presume that employees, without having to
be specifically told, would understand that removing or covering
their uniforms will constitute compliance with this provision.”
Id. Finding that employees would read the fraternization rule
“in the context of [their] duties . . . to insure the protection of
individuals and property,” the ALJ concluded that they would
understand both that the rule “is designed to provide safeguards
so that security will not be compromised by interpersonal
relationships,” and that it does not preclude section 7 activity.
Id. at *15. To remedy the chain-of-command violation, the ALJ
recommended that Guardsmark be required to post a remedial
notice in its San Francisco office. Id. at *16-17.
5
The Board adopted the ALJ’s conclusion that the chain-of-
command rule explicitly prohibits protected labor activity
because nothing in the rule limits its application to working
time. Id. at *2. But the Board disagreed with the ALJ regarding
the solicitation rule, concluding that employees would not
reasonably construe the rule to include a “safe harbor” for
“removing or covering their uniforms [while soliciting off duty
in order to] compl[y] with this provision.” Id. at *4. The Board
explained that Guardsmark’s “clarification” of the rule to some
employees in its San Francisco branch failed to cure the
violation because the company never communicated the
clarification to all employees. Id. at *5. The Board agreed with
the ALJ that the fraternization rule prohibits only personal
entanglements and that employees would reasonably understand
it not to apply to protected activity. Id. at *3. Board Member
Liebman dissented from the fraternization ruling, arguing that
the limitation to personal entanglements, while perhaps the best
reading of the rule, was not the only reasonable interpretation.
Id. at *8. Finally, the Board modified the ALJ’s order to require
nationwide posting of remedial notices. Id. at *6.
Guardsmark petitions for review as to the chain-of-
command and solicitation rules. The Union petitions as to the
fraternization rule, and Guardsmark intervenes in opposition.
The Board seeks enforcement of its entire order.
II.
To determine whether a work rule violates NLRA section
8(a)(1), the Board considers “‘whether the rule[] would
reasonably tend to chill employees in the exercise’ of their
statutory rights.” Adtranz ADB Daimler-Benz Transp. v. NLRB,
253 F.3d 19, 25 (D.C. Cir. 2001) (quoting Lafayette Park Hotel,
326 N.L.R.B. 824, 825 (1998)). In making this assessment, the
Board engages in a two-step inquiry described in Martin Luther
6
Memorial Home, 343 N.L.R.B. No. 75, at *1-2 (May 19, 2004).
First, the Board examines whether the rule “explicitly restricts”
section 7 activity, id. at *1; if it does, the rule violates the Act.
id. But if nothing in the rule explicitly restricts section 7
activity, then the Board moves to the inquiry’s second step,
under which the rule violates the Act if it satisfies any one of the
following three conditions: “(1) employees would reasonably
construe the language to prohibit Section 7 activity; (2) the rule
was promulgated in response to union activity; or (3) the rule
has been applied to restrict the exercise of Section 7 rights.” Id.
at *2. In the first step—which looks to see whether the rule
explicitly restricts section 7 activity—as well as in the first of
the second step’s three alternative conditions—which looks to
see whether employees would reasonably construe the rule to
restrict section 7 activity—the Board focuses on the text of the
challenged rule. See id. at *2-3. Thus, “mere maintenance” of
a rule likely to chill section 7 activity, whether explicitly or
through reasonable interpretation, can amount to an unfair labor
practice “even absent evidence of enforcement.” Lafayette Park
Hotel, 326 N.L.R.B. 824, 825 (1998), enforced mem., No. 98-
1625, 1999 WL 1215578, at *1 (D.C. Cir. Nov. 26, 1999); see
also Cmty. Hosps. of Cent. Cal. v. NLRB, 335 F.3d 1079, 1088
(D.C. Cir. 2003) (citing the Board’s “mere maintenance” rule).
Because Congress delegated the task of applying the NLRA
to particular situations to the NLRB, Board determinations “are
entitled to considerable deference so long as they are
‘reasonably defensible.’” Adtranz, 253 F.3d at 25 (quoting Ford
Motor Co. v. NLRB, 441 U.S. 488, 497 (1979)). We defer to the
Board’s interpretation of NLRA section 8(a)(1) when the Board
“faithfully applies [the “reasonably tend to chill”] standard, and
adequately explains the basis for its conclusion.” Id. Should the
Board adopt “an unreasonable or otherwise indefensible
interpretation of Section 8(a)(1)’s prohibition,” however, we
will deny enforcement. Id.
7
With these standards in mind, we turn to the three rules at
issue in this case.
Chain-of-Command Rule
While on duty you must follow the chain of
command and report only to your immediate
supervisor. If you are not satisfied with your
supervisor’s response, you may request a
meeting with your supervisor and his or her
supervisor. If you become dissatisfied with any
other aspect of your employment, you may write
the Manager in Charge or any member of
management. Written complaints will be
acknowledged by letter. All complaints will
receive prompt attention. Do not register
complaints with any representative of the client.
Guardsmark, 344 N.L.R.B. No. 97, at *1 (emphasis added). The
Board found that the rule’s last sentence “explicitly trenches
upon the right of employees under Section 7 to enlist the support
of an employer’s clients or customers regarding complaints
about terms and conditions of employment.” Id. at *2. See also
Stanford Hosp. & Clinics v. NLRB, 325 F.3d 334, 343 (D.C. Cir.
2003) (noting that employees’ statutorily protected rights to
solicitation extend to solicitation of nonemployees). The Board
rejected Guardsmark’s contention that the last sentence is
limited by the “[w]hile on duty” phrase appearing in the rule’s
first sentence, explaining that even though the phrase “arguably
limits [the rule]’s prohibition on lodging complaints with
employees outside the chain of command to working time
only[,] . . . . its prohibition on discussing terms of employment
with customers is not similarly time-limited. It is absolute . . . .”
Guardsmark, 344 N.L.R.B. No. 97 at *2.
8
Guardsmark argues that instead of reading the rule as a
whole, as Martin Luther requires, 343 N.L.R.B. No. 75, at *1
(holding that the Board “must refrain from reading particular
phrases in isolation . . .”), the Board “treated the phrase ‘while
on duty’ in complete isolation from the phrases that immediately
followed it in the same paragraph.” Guardsmark’s Opening Br.
9-10. In our view, however, the rule’s structure supports the
Board’s reading. Following the first sentence, which tells
employees: “While on duty you must follow the chain of
command and report only to your immediate supervisor,” the
next four sentences describe the chain of command, and the last
sentence flatly tells employees: “Do not register complaints with
any representative of the client.” Given the change in focus
from supervisors to clients, the number of intervening sentences,
and the last sentence’s direct command forbidding complaints
to clients, the Board reasonably read “while on duty” to apply
exclusively to the prohibition against discussing complaints with
non-supervisory employees and interpreted the ban on client
communications to be a separate non-time-limited instruction.
Because “[e]mployees have a statutorily protected right to solicit
sympathy, if not support, from the general public . . . [and]
customers” regarding their terms and conditions of employment,
see Stanford Hosp., 325 F.3d at 343 (quoting NCR Corp., 313
N.L.R.B. 574, 576 (1993)), the Board’s conclusion that the
chain-of-command rule explicitly prohibits section 7 activity is
“reasonably defensible.” Adtranz, 253 F.3d at 25. Cf. Cent.
Hardware Co. v. NLRB, 407 U.S. 539, 542-43 (1972) (“Early in
the history of the . . . Act the Board recognized the importance
of freedom of communication to the free exercise of
organization rights.”).
Next, Guardsmark argues that “the Board ignored [the fact]
that there was nothing in the record to show that [Guardsmark]
ever maintained the rule in a manner suggesting that employees
were prohibited from voicing complaints to clients during their
9
non-working time.” Guardsmark’s Opening Br. 10. Under the
two-step inquiry, however, the Board had no need to reach this
issue given that it had already decided that the rule explicitly
restricts section 7 activity. Put differently, since “mere
maintenance” of a rule likely to chill section 7 activity may
constitute an unfair labor practice “even absent evidence of
enforcement,” Lafayette Park, 326 N.L.R.B. at 825, the Board,
having concluded that the rule explicitly restricts section 7
activity, had no obligation to consider whether Guardsmark
actually enforced the rule against such activity.
Guardsmark cites three cases, Aroostook County Regional
Ophthalmology Center v. NLRB, 81 F.3d 209 (D.C. Cir. 1996),
Adtranz ADB Daimler-Benz Transportation v. NLRB, 253 F.3d
19 (D.C. Cir. 2001), and U-Haul Co., 347 N.L.R.B. No. 34
(June 8, 2006), for the proposition that the Board should have
taken account of the fact that the company never applied the
chain-of-command rule to protected section 7 activities.
Although Guardsmark is correct that these cases discuss lack of
enforcement, they do so only after first concluding that the
challenged rules were not likely to chill section 7 activity and
that their mere maintenance was thus not an unfair labor
practice. See Lafayette Park, 326 N.L.R.B. at 825. In
Aroostook, the challenged rule prohibited employees from
discussing grievances within hearing distance of patients.
Because nothing in the rule explicitly prohibited all discussion
of grievances or could be interpreted to do so except through
“fanciful” speculation, we held that the rule did not chill
protected activity. 81 F.3d at 213. Consistent with the Board’s
two-step inquiry, only then did we note the absence of
enforcement against protected activity. Id. at 213-14. Similarly,
in Adtranz, which involved a rule expressly prohibiting
“soliciting and distribution without authorization,” 253 F.3d at
28, although we did consider the challenged rule’s context,
including the absence of enforcement, the rule’s legitimate
10
business purpose, and the lack of anti-union animus, we did so
only after first concluding that the rule, which applied only to
conduct during working time, did not prohibit section 7 activity.
Id. at 28-29. To be sure, we said that “the NLRB may not
cavalierly declare policies to be facially invalid without any
supporting evidence,” id. at 29, but that statement must be
viewed in light of the fact that in Adtranz the Board “cavalierly”
invalidated a solicitation rule that applied only “during working
time,” id. at 28, and was thus facially valid. Since Adtranz,
moreover, we have upheld Board rulings that faithfully apply the
two-step inquiry. See, e.g., Cmty. Hosps., 335 F.3d at 1088. In
the third cited case, U-Haul, the Board upheld an employer
statement advising—but not requiring—employees unable to
resolve problems with supervisors to “see” the president. 347
N.L.R.B. No. 34, at *6. While the Board, like this court in
Aroostook and Adtranz, mentioned the absence of evidence of
enforcement, it did so only after finding nothing in the
challenged statement that explicitly or through reasonable
interpretation prevented employees from complaining to
customers or non-supervisory employees. Id. at *6-7. Here, by
contrast, the Board found that the chain-of-command rule’s
mandatory language explicitly prohibits solicitation of clients.
Guardsmark, 344 N.L.R.B. No. 97, at *2. Under the two-step
inquiry, then, the Board had no reason to consider the absence
of enforcement.
Finally, Guardsmark argues that the Board erred by failing
to consider the chain-of-command rule’s purpose, namely “to
establish a method for efficiently reporting problems and having
problems resolved [in order to] maintain an orderly work
progression and resolve problems in a prompt manner.”
Guardsmark’s Opening Br. 15. Although efficient resolution of
disputes may well represent a valid business purpose,
Guardsmark never argued, neither here nor before the Board,
that this purpose represents a special circumstance necessary to
11
employee discipline or company production. Cf. Stanford
Hosp., 325 F.3d at 338 (citing Beth Israel Hosp. v. NLRB, 437
U.S. 483, 492-93 (1978)) (holding that, in the context of
solicitation rules, such circumstances are required to justify
restrictions on solicitation during nonworking time). Nor did the
company argue, as it must to prevail, that it narrowly tailored the
chain-of-command rule to achieve its goal without interfering
with section 7 activity. Guardsmark, 344 N.L.R.B. No. 97, at *2
n.3. See also Cmty. Hosps., 335 F.3d at 1088 (upholding a rule
narrowly tailored to achieve the employer’s purpose without
chilling protected activity).
Solicitation Rule
Solicitation and distribution of literature not
pertaining to officially assigned duties is
prohibited at all times while on duty or in
uniform, and any known or suspected violation
of this order is to be reported to your immediate
supervisor immediately.
Guardsmark, 344 N.L.R.B. No. 97, at *1 (emphasis added).
Finding that this rule violates section 8(a)(1), the Board
explained that the rule “undoubtedly places restrictions on
protected off-work solicitation [and] absent some persuasive
justification for the rule, should be deemed overbroad and
unlawful.” Id. at *4. The Board rejected Guardsmark’s
argument that employees, knowing that the rule’s purpose was
to ensure that their unofficial activities will not be attributed to
the company, would understand they could solicit in uniform
while off duty so long as they covered up company insignia. Id.
“[N]othing in the plain language of the rule,” the Board
explained, “communicates to employees that the rule allows
such a safe harbor.” Id. Although Guardsmark explained the
safe harbor to some employees, the Board found the company’s
12
explanation “plainly insufficient to avoid a violation of the Act
[because] narrowing interpretations of overly broad rules must
be communicated to the entire work force covered by the rule.”
Id. at *5.
Guardsmark argues that nothing in the rule explicitly
prohibits off-duty solicitation and that employees would not
reasonably so construe it, especially after the company clarified
the rule’s safe harbor. We disagree. To begin with, because
Guardsmark failed to communicate the safe harbor clarification
to all employees who had received the handbook, the Board
properly focused on the rule’s language. See Ichikoh Mfg., Inc.,
312 N.L.R.B. 1022, 1022 (1993) (holding that an employer must
show that it “clearly communicated to all the . . . employees to
whom the presumptively invalid rule was disseminated that the
rule did not mean what it said”). And because that language
prohibits solicitation and distribution “at all times while on duty
or in uniform,” the Board correctly read it disjunctively: the
rule bars solicitation and distribution at all times when
employees are on duty whether in or out of uniform and at all
times while employees are in uniform whether on or off duty.
Although Guardsmark’s rule is not as expansive as some other
solicitation rules the Board has found unlawful, see, e.g., Martin
Luther, 343 NLRB No. 75, at *15-16 (invalidating solicitation
rule that applies “whether [employees] are on duty or off duty”),
because the company’s rule prohibits off-duty solicitation by
uniformed employees, and because the Board presumes that “a
rule prohibiting employee solicitation, which is not by its terms
limited to working time, would [explicitly] violate [section]
8(a)(1),” id. at *1 n.5, the Board’s conclusion that the rule
violates the Act is “reasonably defensible.” Adtranz, 253 F.3d
at 25.
Echoing arguments made in defense of the chain-of-
command rule, Guardsmark contends that the Board failed to
13
consider (1) the absence of evidence that it applied the rule to
section 7 activity and (2) that it had a legitimate reason for
adopting the rule, namely to disassociate itself from its
employees’ unofficial activities. As to the first point, under the
two-step inquiry, having concluded that employees would
reasonably read the rule to prohibit off-duty solicitation while in
uniform, the Board had no need to consider the absence of
enforcement. Supra p. 9. And although we have no doubt that
disassociating itself from its employees’ unofficial activities
represents a legitimate business objective, absent a “special
circumstance[] . . . mak[ing] the rule necessary to maintain
production or discipline,” Stanford Hosp., 325 F.3d at 338,
Guardsmark may not accomplish that goal through a rule that
restricts its employees’ right to engage in union solicitation
while off duty.
Fraternization Rule
While on duty you must NOT . . . fraternize on
duty or off duty, date or become overly friendly
with the client’s employees or with co-
employees.
Guardsmark, 344 N.L.R.B. No. 97, at *1 (emphasis added). The
Board found that, unlike the chain-of-command and solicitation
rules, nothing in the fraternization rule ran afoul of the Act.
Observing that the rule lists “fraternize” next to two terms
referring to romantic relationships among employees—“date”
and “become overly friendly”—the Board concluded that
“employees would reasonably understand the rule to prohibit
only personal entanglements rather than activity protected by the
Act.” Id. at *3. The Board analogized Guardsmark’s rule to one
upheld in Lafayette Park that barred employee fraternization
with hotel guests on hotel property. See 326 N.L.R.B. at 825.
Acknowledging that the rules in the two cases “[are] not
14
identical,” the Board nonetheless found that “any differences
between the rules are not material and do not warrant a different
outcome here.” Guardsmark, 344 N.L.R.B. No. 97, at *3. The
Board also observed that Guardsmark’s goal—“to provide
safeguards so that security will not be compromised by
interpersonal relationships”—was even stronger than the
justification offered by the employer in Lafayette Park, which
was only “to prevent the appearance of favoritism, claims of
sexual harassment, and employee dissension created by romantic
relationships in the workplace.” Id. (quoting Lafayette Park,
326 N.L.R.B. at 827 n.14).
We see several defects in the Board’s reasoning. To begin
with, although the Board draws the meaning of “fraternize” from
its neighboring words—in the statutory context we would call
this noscitur a sociis—there is an equally applicable canon of
construction, namely that all words in a text must be given
independent meaning. Cf. United States v. Menasche, 348 U.S.
528, 538-39 (1955) (“The cardinal principle of statutory
construction is to save and not to destroy. It is our duty to give
effect, if possible, to every clause and word of a statute.”
(internal quotation marks and citations omitted)); Davis v. Chevy
Chase Financial, Ltd., 667 F.2d 160, 170 (D.C. Cir. 1981)
(applying the contract law credo that “every word in an
agreement should be given meaning”). As the Union points out,
accurately in our view, if the word “fraternize” means nothing
more than the personal relationships conjured up by “dating”
and “becoming overly friendly,” then “fraternize” would have
no independent meaning. Dissenting Board Member Liebman
put it this way:
Here, a reasonable employee certainly could
understand [Guardsmark]’s rule to sweep much
more broadly than prohibiting only personal
entanglements with clients and coworkers. The
15
rule already bars dating and becoming overly
friendly with those individuals, so a reasonable
employee might well conclude that the
prohibition on fraternizing must apply to
something else.
Guardsmark, 344 N.L.R.B. No. 97, at *8 (quotation marks
omitted).
The question, then, is whether employees would reasonably
interpret that “something else” to bar them from discussing
terms and conditions of employment. Answering yes, the Union
cites Merriam-Webster’s Collegiate Dictionary, which defines
“fraternize” as “to associate or mingle as brothers or on fraternal
terms,” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 463
(10th ed. 1996), as well as Roget’s New Millennium Thesaurus,
which lists “associate,” “cooperate,” “join,” and “unite” as
synonyms of “fraternize,” (1st ed. v.1.3.1 2006),
http://thesaurus.reference.com/browse/fraternize. According to
the Union, because “fraternize” includes fraternal relationships
and because unions are fraternal organizations, see Mallory
Battery Co., 239 N.L.R.B. 204, 205 (1978), employees would
reasonably interpret “fraternize” to include discussion of terms
and conditions of employment. Although dictionaries also
define “fraternize” to include engagement in social and intimate
relationships, see, e.g., CAMBRIDGE ADVANCED LEARNER’S
DICTIONARY 503 (2d ed. 2005) (“to meet someone socially,
especially someone who belongs to an opposing army or team,
or has a different social position”); MERRIAM-WEBSTER’S
COLLEGIATE DICTIONARY 463 (“to be friendly or amiable”);
WEBSTER’S NEW WORLD DICTIONARY 555 (2d College ed.
1986) (“to have intimate or friendly relations with any of the
enemy”), every major dictionary we have reviewed, including
one cited by the Board, defines the term to include participation
in fraternal relationships. See, e.g., 6 OXFORD ENGLISH
16
DICTIONARY 151-52 (2d ed. 1989) (“to associate or sympathize
with as a brother or as brothers”); WEBSTER’S NEW WORLD
DICTIONARY 555 (“to associate in a brotherly manner; be on
friendly terms”); M ERRIAM -WEBSTER ’ S C OLLEGIATE
DICTIONARY 463; WEBSTER’S THIRD INTERNATIONAL
DICTIONARY 903-04 (1993) (“to associate or mingle as brothers
or on fraternal terms: engage in comradely social discourse”);
AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE
699 (4th ed. 2000) (“to associate with others in a brotherly or
congenial way”). Moreover, every one of these dictionaries lists
fraternal association as the primary definition; social and
intimate associations are secondary. See id. And although one
of the dictionaries upon which the Board relies, the Compact
Oxford English Dictionary, defines “fraternize” only in terms of
personal relationships, COMPACT OXFORD ENGLISH DICTIONARY
399 (3d ed. 2005), the full Oxford English Dictionary lists “to
associate or sympathize with as a brother or as brothers” as its
primary definition, 6 OXFORD ENGLISH DICTIONARY 151-52.
Given this primary definition, and given that dictionaries serve
as “guide[s] to the . . . meaning of words,” John Simpson,
Preface to OXFORD ENGLISH DICTIONARY (3d ed. 2000),
http://oed.com/about/oed3-preface/distractions.html, we agree
with dissenting Board Member Liebman that employees would
reasonably interpret the rule to prevent them from discussing
terms and conditions of employment. In other words, we find
unreasonable the Board’s conclusion that employees would
understand the rule to prohibit “only personal entanglements
rather than activity protected by the Act.” Guardsmark, 344
N.L.R.B. No. 97, at *3.
We also disagree with the Board that the differences
between this case and Lafayette Park, 326 N.L.R.B. at 827, in
which the Board sustained a rule prohibiting fraternization
between hotel guests and employees on hotel property, “are not
material and do not warrant a different outcome here.”
17
Guardsmark, 344 N.L.R.B. No. 97, at *3. As the Board itself
recognized, Guardsmark’s rule sweeps far more broadly than
Lafayette Park’s, prohibiting fraternization among employees at
all times and without regard to the location of the interaction.
Id. Moreover, because section 7 guarantees employees’ right to
associate fraternally for the purpose of discussing terms and
conditions of employment, the Board’s conclusion in Lafayette
Park that the hotel’s fraternization policy did not interfere with
protected activity must have rested on the proposition that
“fraternize” meant something different in the context of that
case. Because “fraternize” denotes either participation in
fraternal relationships or engagement in intimate or friendly
relationships with members of an “opposing [group]” or those
with a different “social position,” supra p.15, and because hotel
employees and guests occupy different “social positions,” the
Board must have reasoned in Lafayette Park that employees
would understand the rule barring fraternization with guests to
mean “fraternize” in the latter sense. Understood this way, the
rule would allow employees to make protected section 7 appeals
to hotel guests without “fraternizing.” By contrast,
Guardsmark’s rule, which bars employees from fraternizing with
each other, does not suggest fraternizing between members of
different social groups. Unlike the employees in Lafayette Park,
then, Guardsmark employees would reasonably believe that the
company’s rule prohibits fraternal discussion of terms and
conditions of employment. Indeed, in this sense of “fraternize,”
employees could hardly engage in protected activity without
fraternizing with each other.
Finally, we agree with the Union that the Board relied too
heavily on Guardsmark’s business justification. According to
the Board, Guardsmark’s rule “is designed to provide safeguards
so that security will not be compromised by interpersonal
relationships . . . between . . . guards . . . .” Guardsmark, 344
N.L.R.B. No. 97, at *3 (internal quotation marks omitted).
18
Guardsmark adds that it must prohibit personal entanglements
among guards at all times because “it’s difficult to draw a solid
line between being friends off duty and on [and] if employees
develop a social relationship with somebody, . . . it is very likely
to carry over to have that same level of relationship when they
are on the job.” Intervenor’s Br. 8. But even if Guardsmark has
a legitimate interest in a twenty-four-hour ban, it had an
obligation to demonstrate its inability to achieve that goal with
a more narrowly tailored rule that would not interfere with
protected activity. See, e.g., Cmty. Hosps., 335 F.3d at 1088.
For example, since dating and becoming overly friendly include
personal entanglements, Guardsmark could have removed the
word “fraternize” from the rule altogether. Alternatively, it
could have either defined the term to encompass romantic
relationships only or made an exception for protected activity.
Either way, Guardsmark could have achieved its legitimate goal
without interfering with section 7 activity. Because it failed to
do so, we cannot enforce the Board’s order. See id.
III.
This brings us to Guardsmark’s claim that the Board’s
remedy is too broad. Although the ALJ recommended that the
company post remedial notices at its San Francisco offices, the
Board ordered it to do so at all offices nationwide. Because the
Board has “broad discretionary power . . . to fashion remedies”
for unfair labor practices, we will alter its remedial decisions
only if “it can be shown that the order is a patent attempt to
achieve ends other than those which can fairly be said to
effectuate the policies of the Act.” Petrochem Insulation, Inc.
v. NLRB, 240 F.3d 26, 34-35 (D.C. Cir. 2001) (quoting Virginia
Elec. & Power Co. v. NLRB, 319 U.S. 533, 540 (1943)).
Guardsmark has failed to make such a showing. Where, as
here, a company-wide policy violates the NLRA—Guardsmark
19
distributed its handbook with the three unlawful rules to all
employees nationwide—only a company-wide remedy
extending as far as the company-wide violation can remedy the
damage. See, e.g., U.S. Postal Serv. v. NLRB, 969 F.2d 1064,
1072 (D.C. Cir. 1992) (enforcing NLRB’s grant of nationwide
relief where the employer’s provisions constituting an unfair
labor practice applied nationwide). Nationwide remedial notice
thus “effectuate[s] the policies of the [NLRA].” See Petrochem
Insulation, 240 F.3d at 34.
IV.
For the reasons given above, we deny Guardsmark’s
petition for review and grant the Board’s cross-petition for
enforcement with respect to the chain-of-command and
solicitation rules, as well as the scope of the remedy. We grant
the Union’s petition for review as to the fraternization rule and,
as to that rule, deny the Board’s cross-petition for enforcement.
So ordered.