Cintas Corp. v. N.L.R.B.

• Decision Date: 16 March 2007
• Docket Number: No. 05-1305.,No. 05-1340.,05-1305.,05-1340.
• Citation: 482 F.3d 463
• Parties: CINTAS CORPORATION, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent UNITE HERE, Intervenor for Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

482 F.3d 463

CINTAS CORPORATION, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent UNITE HERE, Intervenor for Respondent.

No. 05-1305.

No. 05-1340.

United States Court of Appeals, District of Columbia Circuit.

Argued November 7, 2006.

Decided March 16, 2007.

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, 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 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, 2005 WL 1564863 (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, 98 S.Ct. 2463, 57 L.Ed.2d 370 (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., 344 N.L.R.B. No. 118, 2005 WL 1564863, 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, 2004 WL 3024876, at *1. The Board's order required that Cintas 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 2004 WL 3024876, 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, 98 S.Ct. 2463, 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.

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, 475 F.3d 369, 374-76 (D.C.Cir. 2007), the Board's proper inquiry is described in Martin Luther Memorial Home, 343 N.L.R.B. No. 75, 2004 WL 2678632 (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 2004 WL 2678632, at *2. The Company's initial threshold objection fails.

Second, that nothing in the record demonstrates any employees' actual interpretation of the confidentiality rule to prohibit their lawful discussion may be...