Guardsmark, LLC v. National Labor Relations Board

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,

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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.

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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

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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.

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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

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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.

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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.

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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

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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

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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

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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

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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

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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

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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

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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.”

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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

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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.