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

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.

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
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

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).

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 nondisclosure rules have been approved. Petitioner’s Brief at 19.
11

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.

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. 
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)).