United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 7, 2006 Decided March 16, 2007
No. 05-1305
CINTAS CORPORATION,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
UNITE HERE,
INTERVENOR FOR RESPONDENT
Consolidated with
05-1340
On Petitions for Review and Cross-Application for
Enforcement of an Order of the
National Labor Relations Board
Joel H. Kaplan argued the cause for petitioner. With
him on the briefs was Brian M. Stolzenbach.
Amy H. Ginn, Attorney, National Labor Relations Board,
argued the cause for respondent. With her on the brief were
Ronald Meisburg, General Counsel, John H. Ferguson,
2
Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, and Meredith L. Jason, Attorney.
Brent Garren argued the cause for intervenor UNITE
HERE in support of respondent. With him on the brief was Ira
J. Katz.
Before: HENDERSON, TATEL and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
Concurring opinion filed by Circuit Judge HENDERSON.
GRIFFITH, Circuit Judge: This case involves an allegation
that the confidentiality rule of petitioner Cintas Corporation
(“Cintas” or “the Company”) violated provisions of the National
Labor Relations Act (“NLRA” or “the Act”) that protect
employees’ right to discuss the terms and conditions of their
employment with others. The National Labor Relations Board
(“NLRB” or “the Board”) concluded that the Company’s rule
violated the Act because, although it does not expressly forbid
protected employee discussions, an employee would reasonably
construe it to do so. We affirm the Board’s decision.
I.
Cintas supplies workplace uniforms to businesses
throughout North America and employs approximately 27,000
people at 350 facilities. Company policies governing employee
conduct are set forth in a handbook titled the “Cintas
Corporation Partner Reference Guide,” which is distributed to
all employees. (Cintas refers to its employees as “partners.”) A
section of the handbook titled “Cintas Culture,” in which the
Company describes its “principles and values,” includes a
3
discussion of how employees are expected to treat confidential
information:
We honor confidentiality. We recognize and
protect the confidentiality of any information
concerning the company, its business plans, its
partners, new business efforts, customers,
accounting and financial matters.
Cintas Corp., 344 N.L.R.B. No. 118, at *4 (June 30, 2005)
(emphasis in original). In another section, titled “Discipline
Policy,” employees are warned that they may be sanctioned for
“violating a confidence or [for the] unauthorized release of
confidential information.” Id.
The Union of Needletrades, Industrial and Textile
Employees (UNITE HERE, formerly UNITE) (“the Union”)
filed unfair labor practice charges with the NLRB, alleging that
the Company was in violation of section 8(a)(1) of the NLRA
(29 U.S.C. § 158(a)(1)), which proscribes, among other things,
employer interference with employees’ right to discuss the
terms and conditions of their employment with others, see Beth
Israel Hosp. v. NLRB, 437 U.S. 483, 491 (1978) (“[T]he right
of employees to self-organize and bargain collectively
established by § 7 of the NLRA, 29 U.S.C. § 157, necessarily
encompasses the right effectively to communicate with one
another regarding self-organization at the jobsite.”); Stanford
Hosp. & Clinics v. NLRB, 325 F.3d 334, 343 (D.C. Cir. 2003)
(finding no substantive distinction between solicitation of
fellow employees and solicitation of nonemployees). The
Board’s General Counsel agreed with the Union and issued a
complaint against Cintas, alleging that the language in its
employee handbook prohibiting the disclosure of “any
information concerning . . . partners” unlawfully restricted
employees from exercising their section 7 rights. Cintas Corp.,
4
344 N.L.R.B. No. 118, at *4. In its defense, Cintas argued
before an administrative law judge (“ALJ”) that the General
Counsel had read the disputed handbook language too broadly,
and that there was no evidence that the handbook language had
a chilling effect on employees’ rights. Id. The Company offered
testimony that pictures and names of employees had appeared,
along with their wage rates and other terms and conditions of
employment, on Union flyers—a contravention of the General
Counsel’s allegedly broad reading of the handbook—and yet the
Company had taken no disciplinary action. Id. The ALJ held
that the “mere existence” of a rule whose plain language
interferes with employees’ section 7 right to discuss their wages
and other terms and conditions of employment violates the Act
quite apart from whether the Company enforced the rule in
practice. What mattered here, according to the ALJ, was that
employees “could reasonably construe the confidentiality
provision in [the employee handbook] as restricting [this] right
. . . .” Id. The ALJ also noted Cintas’s failure to present a
legitimate business purpose to which the disputed handbook
prohibitions had been narrowly tailored, and which might have
thus allowed the Company to narrowly restrict employees’
section 7 rights. Id; see Adtranz ADB Daimler-Benz Transp. v.
NLRB, 253 F.3d 19, 29 (D.C. Cir. 2001) (noting that NLRB may
not “cavalierly” declare policies facially invalid without any
supporting evidence, particularly where there are legitimate
business purposes for the rule).
On review, the NLRB unanimously affirmed the ALJ’s
decision, concluding that the language in the Cintas employee
handbook created an “unqualified prohibition of the release of
‘any information’ regarding ‘its partners[,]’ [which] could
reasonably [sic] construed by employees to restrict discussion
of wages and other terms and conditions of employment with
their fellow employees and with the Union.” Cintas Corp., 344
N.L.R.B. No. 118, at *1. The Board’s order required that Cintas
5
either rescind the disputed language and provide employees
with handbook inserts substituting lawful language, or distribute
a revised employee handbook with the appropriate substitution
of lawful language for unlawful language. Id. at *2. The Board
also required the Company to post a remedial notice. Id. Cintas
petitions for review of the Board’s order and the Union
intervenes in opposition. The Board seeks enforcement of its
order.
II.
Section 7 of the NLRA guarantees employees 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 . . . .” 29 U.S.C. § 157. Section 8 prohibits employers
from “interfer[ing] with, restrain[ing], or coerce[ing] employees
in the exercise of [that] right[].” 29 U.S.C. § 158(a)(1). It
“necessarily encompasses [employees’] right effectively to
communicate with one another regarding self-organization at
the jobsite,” Beth Israel Hosp., 437 U.S. at 491, and we have
previously enforced its protection of an employee’s right to
discuss the terms and conditions of her employment with other
employees, see Brockton Hosp. v. NLRB, 294 F.3d 100, 103
(D.C. Cir. 2002), and with nonemployees, see Stanford Hosp.
& Clinics, 325 F.3d at 343. The Board here held that the
confidentiality language in the Company’s employee handbook
violated section 8(a)(1) because a Cintas employee could, in the
Board’s view, reasonably interpret the handbook’s
confidentiality language to restrict her section 7 right to discuss
wages and other terms and conditions of employment with other
employees or with the Union.
6
Cintas’s challenge to the Board’s conclusion is two-fold.
First, the Company mounts a threshold defense based on
undisputed facts, and then offers an interpretive argument that
the Board simply misread the disputed confidentiality rule. We
take up the threshold factual defense first. It relies upon the
following assertions: (1) the confidentiality language in the
employee handbook does not explicitly prohibit employee
activity protected by section 7; (2) there is no evidence that
employees have interpreted the language to prohibit section 7
activity; and (3) Cintas has never interpreted nor applied the
language to prohibit section 7 activity. In response to each of
these assertions, the Board demurs as to the facts and argues in
turn: (1) a rule that does not explicitly interfere with protected
employee activity may nevertheless violate section 8(a)(1); (2)
evidence of actual employee conduct cannot vindicate an
unlawful rule; and (3) an employer’s failure (intentional or not)
to enforce a facially unlawful rule does not redeem the rule. We
agree. None of the Company’s factual arguments undermines
the force of the Board’s legal reasoning.
Addressing each of the Company’s assertions, first, we
agree that its confidentiality language does not explicitly
prohibit section 7 activity. Nowhere in the employee handbook
is there language that, by its terms, expressly instructs
employees not to discuss their wages and other terms and
conditions of employment with each other. But this fact is not
dispositive. As we have recently held in Guardsmark v. NLRB,
No. 05-1216, slip op. at 6-7 (D.C. Cir. Feb. 2, 2007), the
Board’s proper inquiry is described in Martin Luther Memorial
Home, 343 N.L.R.B. No. 75 (May 19, 2004), where the Board
determined that, in the absence of express language prohibiting
section 7 activity, a company nonetheless violates section
8(a)(1) if “employees would reasonably construe the language
to prohibit Section 7 activity . . . ,” id. at *2. The Company’s
initial threshold objection fails.
7
Second, that nothing in the record demonstrates any
employees’ actual interpretation of the confidentiality rule to
prohibit their lawful discussion may be instructive, but it, too,
is not dispositive. No such evidence is required to support the
Board’s conclusion that the rule is overly broad and thus
unlawful. The Board is merely required to determine whether
“employees would reasonably construe the [disputed] language
to prohibit Section 7 activity,” see Guardsmark, slip op. at 6
(quoting Martin Luther, 343 N.L.R.B. No. 75, at *2) (emphasis
added), and not whether employees have thus construed the
rule.1 In making its determination, “the Board focuses on the
1
Although the standard announced by the NLRB is whether
“employees would reasonably construe the [confidentiality provision] to
prohibit Section 7 activity,” Cintas Corp., 344 N.L.R.B. No. 118, at *1
(quoting Martin Luther, 343 N.L.R.B. No. 75, at *1 (emphasis added)), we
note that both the ALJ and the NLRB found that employees “could”
reasonably construe the confidentiality provision in the Cintas employee
handbook to restrict their section 7 rights, id. at *1, *6. We find slippage
between “would” and “could” inconsequential here given the Board’s use of
the modifier “reasonably.” As the Board has explained:
[W]e will not conclude that a reasonable employee would read
the rule to apply to [section 7] activity simply because the rule
could be interpreted that way. To take a different analytical
approach would require the Board to find a violation whenever
the rule could conceivably be read to cover Section 7 activity,
even though the reading is unreasonable. We decline to take that
approach.
Martin Luther, 343 N.L.R.B. No. 75, at *3; see also Guardsmark, 344
N.L.R.B. No. 97, at *3 (finding no violation where an employee “could
possibly” interpret the rule to prohibit protected activity). Although in some
settings a critical difference might exist between “could” and “would,” there
is no such difference here between the phrases “could reasonably” and
“would reasonably.” Both preclude possible, but unreasonable,
interpretations of company rules, and therefore merit our deference.
8
text of the challenged rule.” Id. As long as its textual analysis is
“reasonably defensible,” and “adequately explain[ed],” id.
(citations omitted), the Board need not rely on evidence of
employee interpretation consistent with its own to determine
that a company rule violates section 8 of the Act. See Waco,
Inc., 273 N.L.R.B. No. 101, at *3 (Dec. 14, 1984) (holding rule
unlawful even where “no employee testified that [it] inhibited
him from engaging in [section 7] activity”).
Third, Cintas argues that it has never applied the
confidentiality rule in the manner feared by the Union. But as
we have recently clarified, the “‘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.’” Guardsmark, slip op.
at 6 (quoting 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)). If the Board concludes that
employees would reasonably construe the Company’s
confidentiality language to restrict discussion of their wages and
other terms and conditions of employment with each other, the
Board is under no obligation to consider whether the disputed
restriction has ever been enforced against employees exercising
their section 7 rights. See id.; see also Franklin Iron & Metal
Corp., 315 N.L.R.B. 819, 820 (1994) (“Nor does it matter if the
rule [claimed to unlawfully limit employees’ section 7 rights]
was unenforced or unheeded.”), enforced, 83 F.3d 156 (6th Cir.
1996); Radisson Plaza Minneapolis, 307 N.L.R.B. 94, 94
(1992) (“the finding of a violation is not premised on . . .
evidence of enforcement”), enforced, 987 F.2d 1376 (8th Cir.
1993).
Finding no merit in Cintas’s factual defense, we turn to
the gravamen of its appeal: the Board’s interpretation of the
confidentiality rule itself. We do so with deference to the
9
Board’s decision, see Brockton Hosp., 294 F.3d at 103, and the
“reasonable inferences” it draws from the evidence, U.S. Testing
Co. v. NLRB, 160 F.3d 14, 19 (D.C. Cir. 1998) (internal
citations omitted). We will “abide [the Board’s] interpretation
of the Act if it is reasonable and consistent with controlling
precedent.” Brockton Hosp., 294 F.3d at 103 (citation omitted).
An employer’s confidentiality rule violates the NLRA if it
“would reasonably tend to chill employees in the exercise of
their Section 7 rights.” Lafayette Park Hotel, 326 N.L.R.B. at
825. In considering this question, the Board must inquire,
among other things, whether “employees would reasonably
construe the [confidentiality rule] to prohibit Section 7 activity
. . . .” Guardsmark, slip op. at 6 (quoting Martin Luther, 343
N.L.R.B. No. 75, at *2). The ALJ thus correctly noted that
[t]he ultimate question is whether employees reading
[the disputed rule] would reasonably construe [it] as
precluding them from discussing their terms and
conditions of employment with other employees or a
union, or would they reasonably understand that the
[disputed rule] was designed to protect their
employer’s legitimate proprietary business interests.
Cintas Corp., 344 N.L.R.B. No. 118, at *4.
The Board described Cintas’s rule as an “unqualified
prohibition of the release of ‘any information’ regarding ‘its
partners[,]’ [which] could be reasonably construed by
employees to restrict discussion of wages and other terms and
conditions of employment.” Id. at *1. “[G]iven the breadth of
the all-encompassing phrase ‘any information concerning . . . its
partners[,]’ it is difficult to interpret the rule otherwise.”
10
Respondent’s Brief at 10.2 Cintas disagrees, suggesting that the
Board’s interpretation is the product of a creative imagination
that chooses absurdity over reason. Petitioner’s Brief at 6-7. The
Company concedes that the quoted phrase is all-encompassing,
but argues that a literal interpretation of the phrase would be
unreasonable, as it would preclude employees from discussing,
for instance, their favorite television programs. Id. at 13. We are
not persuaded. The NLRA does not protect an employee’s right
to discuss his favorite television show, and there is no reason to
imagine that an employee would reasonably construe the
Company’s confidentiality rule to curb such behavior. The
NLRA does, however, protect an employee’s right to discuss the
terms and conditions of his employment. And because the
Company has made no effort in its rule to distinguish section 7
protected behavior from violations of company policy, we find
that the Board’s determination is “reasonably defensible,” and
therefore entitled to our considerable deference. Adtranz, 253
F.3d at 25 (quoting Ford Motor Co. v. NLRB, 441 U.S. 488, 497
(1979)). The Board does not rely on a literal interpretation of
the disputed language, nor do we believe that the parade of
horribles proposed by the Company would result from the
exercise of sound judgment. A failure to exclude one particular
activity (e.g., discussion of working conditions) does not in this
case imply intent to include another (e.g., discussions of non
work-related personal information).
Cintas argues that the Board’s decision is “wholly
inconsistent” with Board precedent, and that the facts of this
case are “impossible to distinguish” from cases in which non-
disclosure rules have been approved. Petitioner’s Brief at 19.
2
Although the Board does not find the disputed rule to be
ambiguous, it notes (for good measure) that under Board case law “any
ambiguity in a rule must be construed against the promulgator of the rule.”
Respondent’s Brief at 9 (citing Lafayette Park Hotel, 326 N.L.R.B. at 828).
11
Contending that literal interpretations have been eschewed by
the Board, Cintas again argues that such interpretations invite
absurdity—rendering employees who construe the phrase “any
information” literally as tight-lipped as, in the Company’s own
comparison, Carthusian monks.3 Id. at 13. It would have us
believe that company rules prohibiting disclosure of “any
information concerning . . . employees,” are clearly—and have
always been—lawful under the Board’s jurisprudence, and
therefore do not merit intervention. We disagree and rely on our
previous holding in Brockton Hospital, which enforced the
Board’s order invalidating a company policy prohibiting the
sharing of “information concerning patients, associates [i.e.,
employees], or hospital operations.” 294 F.3d at 106. In
Brockton Hospital, we determined that “the policy on its face
prohibits [employees] from discussing with each other, let alone
Union officials, ‘information concerning [themselves],’ which
the Board argues the [employees] could reasonably read to
include their wages, hours, and working conditions—the very
stuff of collective bargaining.” Id. at 107. Cintas attempts to
distinguish Brockton Hospital on the ground that the unlawful
Brockton policy prohibited the discussion of information about
employees “inside or outside” the workplace. Petitioner’s Brief
at 17 (quoting Brockton Hosp., 294 F.3d at 106). The lack of
such a phrase in Cintas’s policy fails to make the disputed
language any less expansive. The unlawful language in
Brockton Hospital, which restricted sharing “information
concerning . . . [employees]” was, if anything, less restrictive
than the disputed language in Cintas, where sharing “any
information concerning . . . [employees]” is prohibited.
3
“If [the Board’s] literal reading of the [confidentiality] principle
were accurate, Cintas employees could hardly hold an ordinary conversation.
They would be . . . as talkative as the Carthusian monks.” Petitioner’s Brief
at 13.
12
The Cintas rule is distinguishable from company rules
that the Board has previously approved, which it found to be
sufficiently limited by specific context or language so as to be
clear to employees that the rules did not restrict employees’
section 7 rights. See, e.g., Aroostook County Reg’l
Ophthalmology Ctr. v. NLRB, 81 F.3d 209, 212-13 (D.C. Cir.
1996) (rule banning discussion of “office business” in which the
phrase appeared at the end of a discussion of patient
confidentiality); Fiesta Hotel Corp., 344 N.L.R.B. No. 159
(Aug. 15, 2005) (rule banning discussion of “policies and
procedures” that did not include “information concerning
‘employees,’” and followed a list of “customer or marketing
lists or strategies, financial information, computer files or
programs, recipes, and personnel files”); Mediaone of Greater
Florida, 340 N.L.R.B. No. 39, at *4 (Sep. 19, 2003) (reference
to “employee information” appearing within larger provision
that prohibited disclosure of ‘proprietary information, including
information assets and intellectual property’ and listed the
phrase as an example of ‘intellectual property’”); K-mart, 330
N.L.R.B. No. 29, at *1 (Nov. 30, 1999) (prohibition on
disclosing “company business and documents” did not by its
terms include employee wages or working conditions and made
no reference to employee information); Lafayette Park Hotel,
326 N.L.R.B. at 826 (rule banning discussion of “hotel-private”
information that did not on its face cover employee wage
discussion). We therefore conclude that the Board’s
determination was reasonable and consistent with controlling
precedent.
A more narrowly tailored rule that does not interfere
with protected employee activity would be sufficient to
accomplish the Company’s presumed interest in protecting
confidential information. See, e.g., Cmty. Hosp. of Cent. Cal. v.
NLRB, 335 F.3d 1079, 1088-89 (D.C. Cir. 2003) (holding that
a rule prohibiting disclosure of “confidential” information
13
concerning employees would not imply prohibition against
disclosure of working conditions because such information is
not encompassed by plain meaning of “confidential
information,” i.e., “information that has been communicated in
confidence”).
III.
For the foregoing reasons, we deny Cintas’s petition for
review and grant the Board’s cross-petition for enforcement of
its order in full.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring.
Because I believe our decision in Brockton Hospital v.
NLRB, 294 F.3d 100 (D.C. Cir. 2002), controls this case, I
would proceed no further. In Brockton Hospital, the hospital
employer maintained a confidentiality policy providing that
“[i]nformation concerning patients, [nurses], or hospital
operations should not be discussed . . . , except strictly in
connection with hospital business.” Id. at 106 (internal
quotation omitted). Although both this court and the Board have
upheld confidentiality rules where the context of the rule
illustrates mere protection of legitimate business interests, such
as business or proprietary information, see, e.g., Aroostook
County Reg’l Ophthalmology Ctr. v. NLRB, 81 F.3d 209,
212–13 (D.C. Cir. 1996) (permitting restriction on discussion of
“office business” because part of rule protecting patient
information); Mediaone of Greater Fla., Inc., 340 N.L.R.B. 277,
278–79 (2003) (restriction on “employee information” described
as “proprietary information” and “intellectual property”), in
Brockton Hospital we agreed with the Board that the hospital’s
confidentiality policy was facially overbroad despite its
contextual references to “hospital business,” see Brockton
Hosp., 294 F.3d at 106–07. Specifically, we held that “the
Board reasonably applied the standard set forth in Lafayette
Park” to invalidate the hospital rule broadly prohibiting nurses
from discussing “information concerning [themselves],” which
“could [be] reasonably read to include their wages, hours, and
working conditions.” Id. (quotation omitted) (second alteration
added).
On its face, Cintas’s confidentiality rule is even broader than
the rule at issue in Brockton Hospital. By making confidential
“any information concerning the company,” the rule’s breadth
could include publicly available information—even the
company’s address. Cintas Corp., 344 N.L.R.B. No. 118, 2005
WL 1564863, at 1 (June 30, 2005). Such a literal reading of the
2
rule would produce an unintended—and absurd—result and
cannot support the Board’s decision that the rule is overbroad.
As with the Brockton Hospital rule, however, the context of
Cintas’s confidentiality provision narrows its scope, defining as
confidential “any information concerning . . . [employees]” in
the same sentence that “business plans,” “new business efforts”
and “accounting and financial matters” are classified
confidential. Id. Under the doctrine of noscitur a sociis, the
provision’s restriction on disclosing employee information must
be read in light of its associated references to legitimately
protected business information. See Stewart v. Nat’l Educ.
Ass’n, 471 F.3d 169, 175 (D.C. Cir. 2006) (“[N]oscitur a sociis
teaches that a word is known by the company it keeps.”). Thus,
both rules share broad facial restrictions on information
disclosure—although Cintas’s restriction is broader—qualified
by some reference to business interests. Accordingly, our
Brockton Hospital decision—concluding that the Board acted
reasonably in finding that confidentiality rule invalid—controls
here and compels the conclusion that the Board acted reasonably
in finding that the Cintas provision “could be reasonably
construed by employees to restrict discussion of wages and other
terms and conditions of employment.” Cintas Corp., supra, at
1 (applying Martin Luther Mem. Home, Inc., 343 N.L.R.B. 646
(2004)).