Nova Southeastern University, (2011)

Docket Number:12-CA-025114
NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Nova Southeastern University and Service Employees International Union, Local 32B-32J. Cases 122013 CA201325114, 122013CA201325290, and 122013CA201325298

August 26, 2011



The central question presented in this case is whether the Respondent, Nova Southeastern University (Nova), violated Section 8(a)(1) of the Act by prohibiting employees of its maintenance contractor, UNICCO Service Company (UNICCO), from engaging in organizational handbilling at their place of work2014Nova2019s campus.1

The judge found the Respondent2019s conduct unlawful, relying on Fabric Services, 190 NLRB 540 (1971), which held that a property owner violated Section 8(a)(1) by interfering with the Section 7 rights of its contractor2019s employee.2 The Board has considered the decision and

1 On March 16, 2009, Administrative Law Judge John H. West issued the attached decision in this case. The Respondent filed exceptions and a supporting brief; the General Counsel and the Union each filed an answering brief; and the Respondent filed a reply brief to each answering brief. In addition, the General Counsel and the Union each filed cross-exceptions; and the Respondent filed an answering brief responding to both sets of cross-exceptions.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Respondent has excepted to some of the judge2019s credibility findings. The Board2019s established policy is not to overrule an administrative law judge2019s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

We shall modify the judge2019s recommended Order to provide for the posting of the notice in accord with J. Picini Flooring, 356 NLRB No. 9 (2010). Consistent with J. Picini, the details of how the notice should be electronically posted can be resolved in compliance proceedings. Because the Respondent has terminated its contract with UNICCO, we shall also order the Respondent to mail a copy of the attached notice to the last known addresses of current and former UNICCO employees employed on the Respondent2019s property in order to inform them of the outcome of this proceeding. In addition, we shall modify the judge2019s recommended Order to conform to our findings and to the Board2019s standard remedial language, and we shall substitute a new notice to conform to the Order as modified.

2 The judge also distinguished the Board2019s decisions in New York New York Hotel & Casino, 334 NLRB 762 (2001), and 334 NLRB 772 (2001), enf. denied sub nom. New York New York, LLC v. NLRB, 313

F.3d 585 (D.C. Cir. 2002), and in PNEU Electric, Inc., 332 NLRB 616 (2000), enf. denied 309 F.3d 843 (5th Cir. 2002). The Board2019s analysis in those cases has been superseded by our recent decision in New York New York Hotel & Casino, 356 NLRB No. 119 (2011), which is dis-

the record in light of the exceptions and briefs and has decided to adopt the judge2019s findings that the Respondent violated Section 8(a)(1), consistent with our recent decision in New York New York Hotel & Casino (NYNY), 356 NLRB No. 119 (2011).

In NYNY, we concluded that the rights of off-duty employees of the property owner2019s contractor must be assessed under a test that considers both the specific Section 7 rights at issue and the property interests asserted, and that seeks an accommodation of the conflicting rights and interests. Id., slip op. at 720138. Our holding there applied to

the situation where . . . a property owner seeks to exclude, from nonworking areas open to the public, the off-duty employees of a contractor who are regularly employed on the property in work integral to the owner2019s business, who seek to engage in organizational handbilling directed at potential customers of the employer and the property owner.

Id. at 12201313 (footnote omitted). Here, as in NYNY, an offduty employee of the contractor, regularly employed on the property in work integral to the owner2019s business, engaged in handbilling in nonwork areas open to the public on the owner2019s property as part of an organizing campaign among the contractor2019s employees. Although the handbills were directed to fellow employees rather than potential customers, we conclude, for the reasons explained below, that NYNY still controls. In NYNY, we held:

We conclude that the property owner may lawfully exclude such employees only where the owner is able to demonstrate that their activity significantly interferes with his use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline (as those terms have come to be defined in the Board2019s case law). Thus, any justification for exclusion that would be available to an employer of the employees who sought to engage in Section 7 activity on the employer2019s property would also potentially be available to the nonemployer property owner, as would any justification derived from the property owner2019s interests in the efficient and productive use of the property. . . .

cussed in detail below. For the reasons explained below, we do not find that the distinctions drawn by the judge between this case and NYNY serve to distinguish the two cases for the purpose of removing the present case from the scope of our recent holding in NYNY.

357 NLRB No. 74



We leave open the possibility that in some instances property owners will be able to demonstrate that they have a legitimate interest in imposing reasonable, nondiscriminatory, narrowly-tailored restrictions on the access of contractors2019 off-duty employees, greater than those lawfully imposed on [their] own employees.

Id. at 13 (footnote omitted).

Applying NYNY, as explained below, we find that Nova violated Section 8(a)(1) by prohibiting the handbilling at issue.


On August 22, 2006,3 as part of a campaign to organize UNICCO2019s employees at Nova, UNICCO employee Steve McGonigle distributed flyers to his coworkers before the start of his work shift on the Nova campus. McGonigle distributed the flyers, which promoted Charging Party SEIU Local 32B-32J2019s 201cJustice for Janitors201d campaign, in the campus parking lot near the physical plant/central services building, out of which UNICCO2019s employees worked.4 After McGonigle had been distributing the flyers for 5 to 10 minutes, Nova2019s public safety officer, David Neely, approached McGonigle and directed him to stop. Neely cited Nova2019s campus safety rule, which stated that 201c[n]o solicitation is allowed on any NSU campus or facility without the permission of the NSU Executive Administration.201d After asserting that he had the right to handbill during nonworking hours, McGonigle complied with Neely2019s request and entered the central services building where he was to report for work.

Once inside, McGonigle discussed his conversation with Neely with several other UNICCO maintenance employees. McGonigle then left the building and drove to Nova2019s public safety department, located in another campus building, to complain that his right to handbill had been violated. At the public safety department, various Nova officials informed McGonigle that he was prohibited from soliciting on campus.

Soon thereafter, Nova brought McGonigle2019s handbilling to the attention of McGonigle2019s direct supervisor, Jack Sado, and UNICCO manager Tony Todaro. On August 24, 2 days after the handbilling, Todaro called McGonigle and Sado into his office,5 read Nova2019s and

3 All dates are in 2006, unless specified otherwise.

4 Because many UNICCO employees parked in this lot and then entered the central services building, the location of UNICCO2019s timeclock, we presume that the UNICCO employees who received flyers in the parking lot were off duty, as McGonigle was. Nova does not contend otherwise. McGonigle and other UNICCO employees regularly arrived at work before their shifts began.

5 Sado2019s supervisor, Eugene Vladoiu, was also present.

UNICCO2019s no-solicitation rules to McGonigle, gave him copies of those rules, and issued him a disciplinary warning for violating the rules.6

Application of NYNY

We apply the holding in NYNY here because McGonigle was exercising rights protected under Section 7 of the Act by distributing a flyer promoting SEIU2019s 201cJustice for Janitors201d project. We conclude that by handbilling, McGonigle exercised core, nonderivative Section 7 rights, analogous to those that the contractor2019s employees exercised in NYNY. McGonigle2019s distribution of the flyers was part of a campaign seeking union representation for himself and his UNICCO coworkers; thus, McGonigle was exercising his own Section 7 right to selforganization, as the contractor2019s employees did in NYNY. NYNY, supra, slip op. at 8. In addition, as in NYNY, McGonigle and his coworkers were off duty at the time of the handbilling, which took place in an exterior, nonwork area at the location on the Nova campus where McGonigle was most likely to encounter other UNICCO employees, his target audience. Indeed, McGonigle2019s protected interest in exercising his Section 7 rights at this location was even greater than the interest of the employees in NYNY because UNICCO, unlike the food service contractor in NYNY, had no leasehold on the campus. There was no other location that could be more appropriately...

To continue reading