Nova Southeastern University

National Labor Relations Board - Administrative Judge Opinions

Mar 16, 2009

12-CA-025114 (N.L.R.B. Mar. 16, 2009)

JD(ATL)-05-09
Fort Lauderdale, FL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ATLANTA BRANCH OFFICE
DIVISION OF JUDGES
NOVA SOUTHEASTERN UNIVERSITY
and Cases 12-CA-25114
12-CA-25290
12-CA-25298
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 32BJ
Susy Kucera, Esq. for the General Counsel.
Charles Caulkins, Esq. and David Gobeo, Esq.
(Fisher & Phillips LLP), of Fort Lauderdale, FL, for
the Respondent.
Katchen Locke, Esq., of New York, NY, for the
Charging Party.
DECISION
Statement of the Case
JOHN H. WEST, Administrative Law Judge. This case was tried in Miami, Florida, on
November 17 and 18, 2008. The original charge in Case 12-CA-25114 was filed by Local 11,
Service Employees International Union (Charging Party, Union, or SEIU)1 on August 29, 2006,
the amended charge was filed on December 28, 2006, and a complaint was issued on January 26,
2007. The charge in Case 12-CA-25290 was filed by the Union on February 20, 2007, the charge
in 12-CA-25298 was filed by the Union on February 22, 2007, the first amended charge in 12-
CA-25298 was filed by the Union on March 5, 2007, and the second amended charge in 12-CA-
25298 was filed on June 13, 2007. An Order Consolidating Case, Consolidated Complaint and
Notice of Hearing (hereinafter referred to as the complaint) issued on August 28, 2008. The
complaint alleges that Nova Southeastern University (Respondent or Nova) violated Section
8(a)(1) of the National Labor Relations Act, as amended, (Act), by (1) since on or about March
1, 2006, maintaining and enforcing the following rule in the Nova Southeastern University
Campus Safety and Traffic Handbook: "No solicitation is allowed on an NSU campus or facility
without the permission of the NSU Executive Administration," (2) on or about August 22, 2006
by David Neely, outside the maintenance shop on its Fort Lauderdale campus, interfered with the
distribution of union literature by employees of UNICCO2 to their co-workers during non-

1 At the outset of the trial herein, Katchen Locke, who is Associate General Counsel of
Service Employees International Union, AFL-CIO, CLC, moved to change the name of the
Charging Party indicating that as of August 2008 SEIU Local 11 merged with SEIU Local 32 BJ
and therefore Local 11 no longer exists. The merger agreement was received as Charging
Party's Exhibit 1 and Charging Party's motion was granted.
2 The complaint alleges that UNICCO Services Company is a Massachusetts corporation
with offices and places of business at various locations throughout the United States, including
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
2
working time and in a non-working area, (3) on or about August 22, 2006, by Ian Vincent and
Marie Lemme, at the public safety building at its Fort Lauderdale campus, told employees of
UNICCO that they could not distribute literature at any time on Respondent's property, (4) on or
about August 24, 2006, by Tony Todaro, at the physical plant at its Fort Lauderdale campus, told
employees of UNICCO that they could not engage in solicitation at any campus or facility of
Respondent without the permission of Respondent, (5) in or about August 2006 by Tony Todaro
instructed UNICCO to issue two disciplinary warnings to UNICCO employee Steve McGonigle
pursuant to its no-solicitation policy, (6) on or about February 19, 2007, on or near University
Avenue in Fort Lauderdale, by Tony Todaro, interrogated employees concerning their union
activities and implicitly threatened that employees would not be hired because of their union
activities, and (7) on or about February 19, 2007, at the Fort Lauderdale campus, by Thai
Nguyen, threatened that employees would not be hired because of their union activities.
Respondent denies violating the Act as alleged in the complaint.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by Counsel for General Counsel and the Respondent, I make the
following
Findings of Fact
I. Jurisdiction
Respondent, a Florida not for profit corporation, with an office and place of business in
Fort Lauderdale, Florida, has been engaged in the operation of a private not for profit university.
where, during the 12-month period before the complaint herein issued, (1) it derived gross
revenues, excluding contributions which, because of limitations by the grantor, are not available
for operating expenses, in excess of $1,0000,000, (2) it received at its Fort Lauderdale campus
gross revenues, excluding contributions which, because of limitations by the grantor, are not
available for operating expenses, in excess of $50,000 directly from points located outside the
State of Florida, and (3) it purchased and received at its Fort Lauderdale campus goods valued in
excess of $50,000 directly from points located outside the State of Florida. Respondent admits
and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5)
of the Act.
II. Alleged Unfair Labor Practices
When called by Counsel for General Counsel, John Santulli, who is Respondent's Vice
President for Facilities Management, testified that General Counsel's Exhibit 3 shows
Respondent's different campuses, namely the Main campus, the East Campus, the Oceanographic
Campus, and the North Miami Beach Campus; that he works on the Main campus; that General
Counsel's Exhibits 4 and 5 are maps of the Main campus; that the Physical Plant operation,
which includes the people who maintain, clean, and repair equipment on Respondent's

its corporate office in Newton, Massachusetts and its Florida office in Miami Lakes, Florida, and
has been engaged in the business of providing janitorial and landscaping services to customers
throughout the United States, including customers in Florida, where it has provided services to
Respondent at Respondent's Fort Lauderdale, Florida campus.
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
3
campuses, is located in the Central Services Building; that in 2006 the Physical Plant personnel
were the contract employees of UNICCO; that the hourly employees of UNICCO punched a time
clock at Nova; that in 2006 there was a time clock in the Central Services Building; that
UNICCO employees were authorized to park in the Nova parking lot next to the Physical Plant;
that the UNICCO employee staff included two painters, one of whom was McGonigle, who
worked at Nova in 2006; that UNICCO landscaping and maintenance employees worked out of
the Physical Plant Building; that Nova has web site and General Counsel's Exhibit 6 is the
current web page for Facilities Management; that General Counsel's Exhibit 7 is the web page
for the Office of Facilities Management in 2006; that the Facilities Management web page also
had a directory for the executive (management and some administrative assistants) staff of
Facilities Management, General Counsel's Exhibits 8 (printed out "11/16/2008" which, as here
pertinent, lists Todaro as the Director of Physical Plant and indicates "Nova Southeastern
University © 2005-2007"), 9 (printed out "2/16/2007" which, as here pertinent, lists Todaro as
the Director of Physical Plant and indicates "Nova Southeastern University © 2004"), and 10
(printed out "12/20/2006" which, as here pertinent, lists Todaro as the Director of Physical Plant
and indicates "Nova Southeastern University © 2004"); that General Counsel's Exhibit 10 is the
web page for the year 2006; that not all of the personnel listed on General Counsel's Exhibits 8
and 9 speak for the Facilities Management Department; that the Security Operations Center is
located in Building 11 on General Counsel's Exhibit 5 and the Central Services Building is
Building 17 on General Counsel's Exhibit 5; that General Counsel's Exhibit 11 is an undated
organizational chart for Facilities Management; that General Counsel's Exhibit 12 is the Public
Safety web page for the year 2008 (printed out "11/16/2008" and indicates "Nova Southeastern
University © 2005-2007") which has a picture of Bronson Steve Bias, who is the Executive
Director of Protective Services; that General Counsel's Exhibit 13 is the management staff of the
Public Safety Department as of the year 2008 (printed out "11/16/2008" which, as here pertinent,
lists Bronson Steve Bias as the Executive Director of Protective Services, Ian Vincent as
Coordinator, and indicates "Nova Southeastern University © 2005-2007"); that General
Counsel's Exhibit 14 is the administrative staff of the Public Safety Department as of the year
2006 (printed out "12/20/2006" which, as here pertinent, lists Bronson S. 'Buck' Bias as the
Executive Director of Protective Services, Ian Vincent as Coordinator, and indicates "Nova
Southeastern University © 2005"); that General Counsel's Exhibit 15 is the Campus Safety and
Traffic Handbook for Nova for 2006-2007, which handbook is also posted on Nova's website via
the Public Safety page; that that General Counsel's Exhibit 16 is the Campus Safety and Traffic
Handbook for Nova for 2008-2009, which handbook is also posted on Nova's website; that the
policies in the handbook must be followed by any individual entering the Nova property,
including the faculty, Nova staff, students, and employees of contractors working for Nova; that
if a Nova contractor is aware that the policies in the handbook are being violated, they have an
obligation to alert Nova so that Nova can address the issue; that Bias reports to him; that Public
Safety uses officers to police the campus; that Public Safety officers report to coordinators; that
"No solicitation is allowed on any NSU campus or facility without the permission of the NSU
Executive Administration" appears on page 3 of the Campus Safety and Traffic Handbook 2006-
2007 under the topic heading "Campus Personal Safety and Security"; that this policy was in
place between 2006 and 2008; that he is included in the NSU Executive Administration; and that
the same prohibition appears on page 2 of the 2008-2009 Campus Safety and Traffic Handbook
under the same topic heading.
When called by the Respondent, Santulli testified that as Vice President of Facilities
Management, his office and his staff oversee all of the contract operations; that this was the
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
4
situation when UNICCO was on campus and it was the situation when he testified at the trial
herein; that there is an understanding that contractor employees are managed by the contractors,
and if the University has an issue with a contractor employee, it is dealt with either by the
contractor ownership or the designated representative for the contractor; that the solicitation
policy which was in place in 2006 was first put into effect by Nova approximately 20 years ago;
that Nova's Campus Safety and Traffic Handbooks do not contain all of the University's rules,
policies, and procedures; that there are six driving access points to Nova's main campus and none
are secured or controlled; that there are no pedestrian barriers controlling access to the campus;
that Respondent's Exhibits 6-8 are incident reports collectively involving situations in 2006
where SEIU representatives were passing out flyers on Nova's campus or UNICCO flyers were
found on a Nova campus bulletin board; that the contractors which work on Nova's campus on a
daily basis are advised about what work they need to perform by a work order; and that Todaro's
name was not included on General Counsel's Exhibits 8, 9,and 10 to show that he was an
employee of Nova but rather the website pages were an attempt to direct someone trying to get
information to the correct manager or administrative assistant.
On cross-examination Santulli testified that, with respect to the individuals listed on
General Counsel's Exhibit 8 - if Todaro is not considered, all of the people listed are employees
of Nova and most would be considered members of the management of Nova; that the
Coordinators listed are really staff or administrative assistants; and that these directories, which
are posted on Nova's website, have listed individuals that speak for the departments.
Counsel for General Counsel and the Respondent stipulated to General Counsel's Exhibit
17. It is the "SERVICE CONTRACT FOR FACILITIES MAINTENANCE" entered into on
May 15, 2001 between Nova and UNICCO. The following is found on page 6 of the contract
under the topic heading "COMPLIANCE WITH APPLICABLE LAWS AND
REGULATIONS": "Further, Contractor agrees that it, its agents and employees will abide by all
rules, regulations, and policies of NSU during the term of this Contract, including any renewal
periods."
Todaro testified that when he worked for UNICCO, before he was hired by Nova on
February 18, 2007, work was performed according to the contract UNICCO had with Nova; that
when he worked for UNICCO (a) Nova did not play a role in directing or disciplining UNICCO
employees, and (b) Nova did not pay UNICCO's employees directly; that he first became aware
of the unionization at UNICCO when the picketing started; that UNICCO had a no-solicitation
policy in their general policy and procedure manual; that on "7-28-06" James Canavan, the Vice
President of Labor Relations with UNICCO signed a "NOTICE TO EMPLOYEES,"
Respondent's Exhibit 3, which was posted pursuant to a settlement agreement approved by a
Regional Director of the National Labor Relations Board (Board)3; that the notice was posted for
60 days; that Nova had nothing to do with the incident which resulted in the posting; that

3 In part the notice reads:
WE WILL NOT tell you that you must wait until 4:20 p.m. to return to the Physical
Plant/shop for clean-up and to complete paperwork at the end of the work day, in order
to discourage you from supporting SERVICE EMPLOYEES INTERNATIONAL UNION,
LOCAL 11, (the Union) or because of your activities for the Union.
WE WILL NOT threaten to closely check your work orders in order to discourage you
from supporting the Union or because of your activities for the Union.
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
5
UNICCO's attitude with respect to union activities was that they were instructed to not get
involved with anything that the Union was doing there itself, they were allowed to pass out
flyers, there was not a problem with passing out flyers during the lunch hour, break hours, and
management was not to interfere; that in 2006 Nova had authorized requestors who would put in
work orders; that, as here pertinent, in 2006 he was an authorized requestor; that sometimes
someone who is not an requester called in about a problem, which might involve a safety issue,
and the dispatcher would use his name as the requestor because the work order would not
generate unless there is a requestor listed; that if he sees an issue while he in out in the field, he
will call it in and ask the dispatcher to do a work order, and in that instance he would be the
requestor; that generally every building on campus has an authorized requester and he is not sure
of the exact number of authorized requestors there are; that when he worked for UNICCO, he
had no authority to purchase parts for Nova, and Nova's Facilities Management had to authorize
the purchase of parts; that General Counsel's Exhibit 34 is a print out of a page which
summarizes five work orders on January 2, 2006 (Todaro is not the requestor on any of these.);
that General Counsel's Exhibits 35, 36, and 37 are work orders dated January 3, 2006 which list
Todaro as the requestor; that he did not recall the work order received as General Counsel's
Exhibit 35, he did not request this work which involved installing a shelf in their shop, and this
job was closed out by the Assistant Director Gene probably because it was not needed; that
General Counsel's Exhibit 36 involves a situation where a sprinkler company did its annual
inspection of Nova's systems, a deficiency was found, a work order was submitted to correct the
deficiency, and he may or may not have been the one who submitted the work order; and that
while he is named as the requestor on General Counsel's Exhibit 37, which is a work order to
replace belts on an air conditioning unit in the kitchen in the "SON" building, this is probably
something that he did not do.
When called as a 611(c) witness, Santulli testified that he believed that in August 2006
Public Safety Officer Neely advised McGonigle that he could not pass out or post flyers at the
facility. More specifically, Santulli gave the following testimony:
Q. ….
At that time [August of 2006], Public Safety Officer Neely advised Mr.
McGonigle that he could not pass out or post flyers at the facility, is that right?
A. I believe so.
Q. Believe so? Isn't that the truth?
A. If that's what our written documentation or our incident report says, I would agree
with you, but I was not there when that occurred.
Q. You were informed of the situation, correct?
A. I'm typically informed of public safety incidents.
Q. That doesn't answer my question.
You were informed of this particular incident regarding Steve McGonigle?
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
6
A. Oh, I'm sure I was.
Q. You're sure you were?
A. Like I said, I'm informed of - -
Q. It's a yes or no.
A. Okay, fine. Yes.
Q. And Mr. McGonigle was prohibited from distributing any leaflets pursuant to the
policies in place in the handbook, right?
A. I believe so.
Q. You believe so? Yes or no? It calls for a yes or no answer.
A. Yes. [Transcript pages 63 and 64]
Counsel for General Counsel and the Respondent stipulated to General Counsel's Exhibit
18. It is an "Incident Report" of Nova, with a "Security Level" of "Classified." More specifically,
the report reads as follows:
….
Occurred from date: 8/22/2006 Occurred From Time: 7:26.00AM
Reported Date: 8/22/2006 Reported Time: 7:30.00AM
Reporting Person: Neely, David Supervisor: Alberto, Maria
Building Name: Central Services Building
….
Location: Main campus
Incident Summary:
On Tuesday, August 22nd, 2006, at approximately 7:30am Public
Safety Officer David Neely met with Unicco employee Steve
McGonigle in reference to a report of Mr. McGonigle that it is
against NSU policy to hand out flyers and to refrain from doing so
in the future. Mr. McGonigle stated that he would comply but that
he was going to file an official complaint. Mr. McGonigle filed a
complaint at the Security Operations Center at approximately
8:20am stating that his rights have been violated. Mr. McGonigle
was given a copy of NSU's no solicitation policy and asked by
Public Safety to please follow the policy in the future. The director
of the Physical Plant Tony Todaro and Mr. McGonigle's supervisor
Jack Sado were notified of the incident. Public Safety Field
Operations Manager Shane Lam, Public Safety Compliance
Manager Jim Ewing and Public Safety Coordinator Maria Alberto
were notified of the incident as well.
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
7
….
Employee Steve Mcgonigle was seen handing out flyers in the
Central Service Parking Lot. When asked to desist he complied but
stated he was doing nothing wrong and that Public Safety was
violating his constitutional rights after he was informed of NSU's
no solicitation policy.
….
Narrative
On Tuesday August 22nd, 2006 at approximately 7:30 am Public Safety Officer David
Neely met with Unicco employee Steve McGonigle at the Central Services Building.
Officer Neely observed pink flyers in Mr. McGonigle's back pocket. Officer Neely
advised Mr. McGonigle of the policy regarding the passing out or posting of flyers on
NSU property. Mr. McGonigle stated that he would comply but that he was going to file
an official complaint. Mr. McGonigle filed a complaint at the Security Operations Center
at approximately 8:20am stating that his state and federal rights had been violated and
that he would file a complaint with the National Labor Relations Board. Mr. McGonigle
was given a copy of NSU's no solicitation policy and asked by Public Safety to please
follow the policy in the future. NSU Davie Policy Officer JoAnn Carter met with Mr.
McGonigle at the Security Operations Center. The director of the Physical Plant Tony
Todaro and Mr. McGonigle's supervisor Jack Sado were notified of the incident. Public
Safety Field Operations Manager Shane Lam, Public Safety Compliance Manager Jim
Ewing and Public Safety Coordinator Maria Alberto were notified of the incident as well.
….
A number of other incident reports involving the handing out or posting of flyers were
received, General Counsel's Exhibits 19-24.4 Counsel for General Counsel and the Respondent
stipulated "that these are incident reports regarding the public safety of Nova." (transcript page

4 Taken chronologically, they include (1) a report dated "3/31/2006" involved two men (One
was apparently UNICCO staff member Anthony Iovino.) handing out flyers which "were related
to UNICCO's and SEIU laborer dispute" in a parking lot of Respondent, the men were notified it
was against NSU policy to hand out flyers without authorization, and the men left the area, (2) a
report dated "4/3/2006" involved five individuals identified as "FAU" students who were handing
out flyers on Respondent's Main campus referring to UNICCO and SEIU laborer dispute, and
who were "trespassed … from NSU property … without incident," (3) a report dated "6/27/2006"
involving the discovery of SEIU flyers on bulletin boards in the Health Professions Assembly 1
Building on the Main campus, (4) a report dated "10/17/2006" involving the discovery of various
UNICCO flyers posted in the Parker Building on the Main campus, (5) a report dated
"10/27/2006" involving the discovery of SEIU flyers in vehicles, and Coordinator Jonette Baker
speaking to the individual who was placing flyers on vehicles on the NSU campus advising him
that NSU does not allow solicitation on its property, and escorting the individual off campus, and
(6) a report dated "11/17/2006" involving the discovery of numerous UNICCO flyers posted in
the Parker Building on the Main campus.
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
8
67)
McGonigle, who was hired by UNICCO in May 2003, testified that he was lead painter
on the Nova main campus; that while he was supposed to punch in at 7:53 a.m. to 8 a.m. he
generally arrived at building 17 on General Counsel's Exhibit 5, which is the Central Services
Building or the Physical Plant on Nova's main campus, at approximately 7:15 a.m. so that he
could get some coffee, read the paper, and talk with the maintenance workers; that his immediate
supervisor was Sado who reported to Gene Vladoiu, who was the supervisor of maintenance and
HVAC, and Todaro, who was the Director of Physical Plant; that he parked on the north side of
the parking lot outside building 17; that the approximately 10 UNICCO maintenance employees
he worked with parked in the lot outside building 17; that on August 22, 2006 he stood outside
building 17 in the west parking lot (See General Counsel's Exhibit 28.) and he passed out a few
flyers, General Counsel's Exhibit 29, to his co-workers as they came into work5; that he saw a
couple of janitorial supervisors in the area when he was distributing the leaflets; that after he
distributed the leaflets for about 5 to 10 minutes he was approached by a Nova Public Safety
Officer, Neely, who drove up and told him that he needed to stop leafleting; that he had leaflets
in his back pocket at the time; that he asked Neely who instructed him to stop the passing out of
leaflets and he told Neely that he was doing it during nonworking hours and he felt he had the
right to do it; that he ceased leafleting; that he then went into the shop in building 17 and told the
maintenance employees what had happened; that he then punched in, got in his van and drove
over to Public Safety, which is building 11 on General Counsel's Exhibit 5; that he told a woman

5 The flyer is an SEIU flyer which, as here pertinent, indicates as follows:
Want to Make a Difference?
….
Join hundreds of students and others on the Justice for Janitors listserv. Find out
how to send a message to Nova President Ray Ferrero.
You have the chance to make a difference for the janitors at Nova Southeastern
University who earn as little as $6.40 an hour and are not provided with benefits.
Ray Ferrero can change the lives of hundreds of janitors by supporting
responsible contractors who pay living wages.
You can help:
1. Text message to … to learn more about the campaign.
….
Send a message to Nova Southeastern:
Chalk it up
More than 48 million workers in this country are uninsured - including hundreds
of UNICCO janitors at Nova Southeastern University.
Janitors such as Jocelyn Doussou who makes $8 an hour and now faces more
than $75,000 in medical bills from her daughter's treatment for life threatening kidney
and heart problems.
Eighteen thousand workers die each year because of a lack of health insurance;
and UNICCO janitors, since they are uninsured, are at risk of being part of this statistic.
You can help janitors at Nova Southeastern University and their families get the
health care they need so they don't become another statistic.
Join us August 22 and Rally for Health Care - Chalk It Up!
Corner of SW 36th Street and University Drive in the Town of Davie. Time: 4:30 pm
….
Americans
for Health Care
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
9
in the receptionist area what had happened and she directed him to the Coordinator's office; that
he started to enter the Coordinator's office and he spoke with an unnamed woman and Ian
Vincent telling them about his conversation with Neely; that Vincent left and the woman called
Facilities Management and handed him the telephone; that he spoke with Marie Lemme who
works in Facilities Management, telling her about his conversation with Neely; that Lemme told
him that she would call him back; that Vincent returned and told him that he had spoken with
Steve Bias, the Director of Public Safety, who said that he was not allowed to pass out a leaflet
on campus; that when Vincent returned he was holding a copy (reduced in size) of the flyer; that
Lemme called back and "[s]he told me that she had spoken to Mr. John Santulli and that I was
not supposed to be leafleting on the campus" (transcript page 112); that he told Lemme that he
felt like he had a right to do this in that he was doing it during non-working hours, and he felt it
was a violation of his rights; that Vincent was about 5 feet away when he spoke with Lemme
over the telephone; that Lemme and Vincent told him that it did not matter that he was doing it
on his own time since Nova was a private university and he was not allowed to leaflet; that he
said that he felt it was a violation of his rights and he was going to make a complaint with the
National Labor Relations Board (Board); that the Coordinator wrote down what he said; and that
he went back to work.
On cross-examination McGonigle testified that he did not have any leaflets in his hand
when Neely drove up but he did have them in his back pocket; that before August 22, 2006 he
had handed out leaflets on Nova's campus to his coworkers; that in the past he has handed out
union buttons and union authorization cards; and that in his October 17, 2006 affidavit to the
Board he indicated "I did recently distribute union buttons at the UNICCO time clock and the
Physical Plant and was not prohibited from doing so. I believe that the UNICCO janitor
supervisor saw me." (transcript page 124)
General Counsel's Exhibit 30 is a "PROGRESSIVE DISCIPLINE NOTICE" dated "8-24-
2006" which indicates that it is a verbal for a minor policy/procedure violation issued by Sado to
McGonigle regarding an incident which happened on August 22, 2006. The document indicates
that "Mr. Steve was handing out (solicitation and distribution) of unauthorized materials at the
job location. (without permission from Nova Univ. and UNICCO Co.) …. This practice must
stop immediately." General Counsel's Exhibit 31 is a "PROGRESSIVE DISCIPLINE NOTICE"
dated "8-24-2006" which indicates that it is a verbal for a minor violation, namely leaving
assigned work area without permission, issued by Sado to McGonigle regarding an incident
which happened on August 22, 2006. This document indicates that "Mr. Steve left his assigned
work area to another area without permission from his supervisor. …. Must not leave assigned
areas for other than work related issues without permission from supervisors."
McGonigle testified that he, Sado, and Eugene Vladoiu signed General Counsel's
Exhibits 30 and 31; that he received both of these write ups on August 24, 2006 at the same time;
that at about 4 p.m. on August 24, 2006 he was paged on his Nextel telephone by Sado who told
him that he wanted to see him before he left at the end of the day; that he went to Sado's office,
Sado asked him to close the door, and then Sado told him that Todaro wanted to see him and he
was being written up, but Sado did not get into specifics; that they went to Todaro's office; that
sitting at the conference table in Todaro's office was Todaro and Vladoiu; that he and Sado sat
down; that Todaro "explained that I had been written up. He had read the progressive discipline
reports and also read the policies of Nova … and UNICCO from the handbooks" (transcript page
117); that Todaro gave him a copy of a page from the UNICCO handbook, General Counsel's
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
10
Exhibit 326; that Todaro gave him a copy of a page from the Nova Handbook for Safety, General
Counsel's Exhibit 337; that Todaro told him that he had left in a "huff" (Id. at 118) and he told
Todaro that he was angry but as always he was polite and courteous at all times; that he told
Todaro that he felt that it was a violation of his rights and he told Todaro that he was going to
file a complaint with the Board because he felt that it was a violation of his rights; that Todaro
told him that he could not distribute anything on Nova property because it was private property;
and that he never distributed literature on the Nova campus to anybody other than UNICCO
employees.
On cross-examination McGonigle testified that he did not recall if he ever handed out
union literature, buttons, or propaganda after August 24, 2006 on the Nova campus; that in his
October 17, 2006 affidavit to the Board he indicated that he did recently distribute union buttons
at the UNICCO time clock in the Physical Plant and was not prohibited from doing so, and he
believed that the UNICCO janitor supervisor saw him; and that during his August 24, 2006
meeting with Todaro he either told him or read to him that no solicitation was permitted on any
NSU campus or facility. On redirect McGonigle testified that to his knowledge he had not seen
the Nova policy on solicitation before Todaro gave it to him during their meeting on August 24,
2006.
Todaro testified that he "heard of something [about the incident on August 22, 2006
regarding Mr. McGonigle soliciting on campus] …. I'm not even sure of the total details"
(transcript page 188); that he might have seen General Counsel's Exhibits 30 and 31, the two
disciplines given to McGonigle on August 24, 2006; that "I don't recall [having] a conversation
[with McGonigle about this discipline]" (Ibid); and that if discipline was given to McGonigle he
might have been made aware of it at the time, "I might have been in the counsel - - brought into
the loop before this was given to him by his supervisor or his manager" (Id. at 189). Todaro then
gave the following testimony:
Q. BY MR. GOBEO [one of Respondent's attorneys]; Having looked at these
documents, do you recall this discipline going to Mr. McGonigle at the time?
A. Honestly, I don't remember this. Like I said, I would have most likely had a
conversation, but I don't remember.
Q. Do you recall giving Mr. McGonigle a copy of UNICCO's solicitation policy?
A. I don't recall giving him a copy.
Q. Did anyone from Nova tell you to give Mr. McGonigle discipline?
A. No. [Transcript page 190 with emphasis added]

6 As here pertinent one entry on the page reads as follows: "Solicitation and distribution of
unauthorized materials at the job location."
7 As here pertinent, one sentence on the page reads "No solicitation is allowed on any NSU
campus or facility without the permission of the NSU Executive Administration."
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
11
On cross-examination Todaro testified that after the incident involving McGonigle
passing out some flyers he became aware of and read Nova's policy regarding no solicitation on
campus; that on page 6 of the contract between UNICCO and Nova, General Counsel's Exhibit
17, it is agreed that "[f]urther, Contractor agrees that it, its agents and employees will abide by
all rules, regulations, and policies of NSU during the term of this Contract, including any
renewal periods"; that this contract continued until UNICCO's last day at the Nova campus; that
on page 3 of Nova's Campus Safety and Traffic Handbook 2006-2007, General Counsel's Exhibit
15, it is indicated "[n]o solicitation is allowed on any NSU campus or facility without the
permission of the NSU Executive Administration"; that before the McGonigle August 22, 2006
incident he had access to this policy but he did not know that it was there; that when the SEIU
organizing campaign commenced he and others were advised that they were not allowed to stop
anybody from passing out leaflets as long as they were on their lunch hour, or break times; and
that they were allowed to pass out leaflets during lunch and break times. Todaro gave the
following testimony about McGonigle's discipline:
Q. Now, you testified about General Counsel's 30 and 31. Do you remember those?
Those were the disciplinary policies - - notices that were given to Mr. McGonigle, do you
remember that?
A. I guess I don't remember those, but - -
Q. Do you want to take a look at them again?
A. Well, I seen them earlier, but I don't remember recalling that time.
Q. And the notice - - if you want to take a look at them now, I'd like to direct you to 30.
A. (Reviews document.)
Q. At the bottom of the notice - - Jack Sado, wasn't he one of your supervisors?
A. Yes.
Q. And under that is Mr. Gene Vladoiu. Is that his signature?
A. Yes.
Q. And he was your supervisor too? They reported to you?
A. Yes.
Q. And they were supposed to bring matters to your attention regarding issues that arose
with your employees, correct?
A. Yes.
Q. It's your testimony that they did not advise you of this situation when it occurred and
that you are not certain that these were issued, that you may or may not have seen them.
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
12
A. No, I says [sic] I don't recall this.
Q. So you don't recall what your supervisors were doing concerning an incident that
occurred on your campus regarding solicitation during a union organizing campaign - -
A. That's right.
Q. - - is that your testimony?
A. That's correct.
….
Q. So it's your testimony that Mr. Sado and Mr. Vladoiu took it upon themselves to
come up with these disciplines and issue them to Mr. McGonigle?
A. I' m just saying I don't remember this. However, I'm sure they came and approached
me because they do with such matters, but I don't recall this.
Q. This didn't stick out in your mind at all?
A. No.
Q. You were aware at that time, during August of '06, that Mr. Steve McGonigle was an
active union supporter, weren't you?
A. I know he was involved, yes.
Q. You're - - was he an active union organizer?
A. I - - yes, he was involved. I know he was.
Q. And you're aware that he participated in picket line conduct, don't you?
A. I believe so, yes.
Q. And you're aware that he distributed leaflets, correct?
A. Yes. [Transcript page 202-204]
Todaro testified further on cross-examination that he was given instructions by UNICCO to
permit people to leaflet so long as it was on break time; that he did not know whether
McGonigle's discipline was contrary to UNICCO's instructions regarding leafleting because he
did not know if it was established that McGonigle was on his work time or not; that McGonigle's
discipline for soliciting, General Counsel's Exhibit 30 reads "Mr. Steve was handing out
(solicitation and distribution) of unauthorized materials at the job location. (without permission
from Nova Univ. and UNICCO Co.)," and the notation does not indicate that McGonigle did it
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
13
while he was on the clock or that he handed out materials to someone else who was on the clock;
that UNICCO has maintenance contracts all over the United States and in some areas, like
Boston, Massachusetts, they have union contracts; that he would not think that UNICCO would
have a problem with being unionized in the involved area in Florida; that he did not know if
Nova opposed the Union; that he believed that UNICCO ultimately agreed to recognize the
Union; and that he did not think that this resulted in UNICCO losing its contract with Nova in
that he thought it was a performance issue but "I don't know exactly for sure" (Id. at 207)
On redirect Todaro testified that he did not tell Sado or Vladoiu to give the August 24,
2006 disciplines to McGonigle; and that if he had done that, he may have recalled that "Yes, I
probably would have recalled it." (Id. at 208)
Subsequently, Todaro testified that UNICCO's Vice President Labor Relations, Canavan,
was the one who spoke to him with respect to what UNICCO could or could not do regarding
union activity, and this occurred way before Canavan signed the above-described Board notice
which is dated July 28, 2006; that, therefore, he was advised well in advance of the August 22,
2006 McGonigle incident what UNICCO could or could not do with respect to union activity;
and that he believed that Vladoiu was also advised by Canavan what UNICCO could or could
not do with respect to union activity but he did not think Sado had direct contact with Canavan,
in that he thought that Canavan spoke more or less with him, Vladoiu, the management staff,
some of the Directors, and some of the Assistant Directors. Todaro then gave the following
testimony:
JUDGE WEST: And notwithstanding that, he [Vladoiu] did not discuss,
specifically discuss these two disciplines before they were issued with you?
THE WITNESS: I just don't remember. I seem - - most likely they had a
conversation with him, yes, but I don't remember this whole episode here with this - -
these write-ups.
JUDGE WEST: Looking as you did before at General Counsel's Exhibit 30, that
runs contrary to what your Vice President of Labor Relations advised you with respect to
UNICCO, doesn't it, that someone would need permission from UNICCO?
THE WITNESS: I think, and I can only speculate. And if you would like me to
speculate, I can only tell you what I think they were trying to say on this piece of paper.
JUDGE WEST: I don't want you to speculate, no. [Transcript page 210 with
emphasis added]
When called by Respondent Santulli testified that if the university has an issue with a
contractor's employee, it is dealt with either by going to the contractor ownership or the
designated representative for the contractor; that he typically dealt with one of Todaro's
supervisors, Ken Gomulka; that he himself has never told any contractor that he wanted one of
their employees disciplined or a specific employee of a contractor discharged; that he is not
aware of any supervisor or management of Nova instructing a contractor to discipline or fire one
of the contractor's employees; that when Todaro was an employee of UNICCO he did not ever
instruct Todaro regarding what he should or should not do with respect to disciplining or firing
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
14
any of his employees; that he is not aware of any Nova employee who instructed Todaro to
discipline or fire one of UNICCO's employees; and that he never told any UNICCO employees
that Todaro was acting on behalf of Nova University.
On cross-examination Santulli testified that Todaro was the designated representative for
UNICCO in some respects but typically he, Santulli, dealt with Gomulka, who was Todaro's
supervisor.
According to the testimony of Santulli, UNICCO's last day at Nova was February 17,
2007 in that Nova hired W. H. Massey (Massey) as a contractor for general maintenance; that
TCB Systems took over the janitorial and the subcontractor Green Source took over the
landscaping work; that UNICCO employees performing those services were given an
opportunity to apply for jobs with the new contractors; that at the time he approved the hiring of
several of UNICCO's former supervisors and managers as employees of Nova; that one of those
individuals was Sado, who was the maintenance manager for UNICCO and was hired in
February 2007 by Nova as the general maintenance supervisor; that Nova also hired Vladoiu,
who was UNICCO's maintenance manager/HVAC manager, as the Assistant Director of General
Maintenance; that Nova currently employs Todaro as the Director of Physical Plant8; that in
2006 Todaro reported to Nova's Executive Director of Facilities management, who was Arlene
Morris at that time; that Morris reported to him in 2006; that when Todaro worked for UNICCO
his title was also Director of Physical Plant9; that Todaro has the same phone number, and office
in the Central Services building (building 17 on General Counsel's Exhibit 5, which is often
referred to as Physical Plant) at the time of the trial herein as he had when he worked for
UNICCO; that when Todaro worked for UNICCO he, Santulli, would authorize
recommendations made by Todaro regarding Nova's maintenance operation; and that Todaro
hired employees when he was a UNICCO employee and as a Nova employee Todaro hires
individuals.
McGonigle testified that UNICCO lost its contract with Nova, and as a result he was laid
off on February 16, 2007.
Todaro testified that before February 18, 2007 he worked for UNICCO at the Nova
campus and he was the Physical Plant Director; that after February 18, 2007 he worked for Nova
and he is he Physical Plant Director; that when he worked for UNICCO he (a) supervised
approximately 300 UNICCO employees but he did not supervise any Nova employees at the
time, (b) used employee evaluations and he reviewed vacation and leave requests of upper
management personnel, (c) occasionally had to look at employee warnings, (d) reviewed the
UNICCO paperwork for UNICCO employee suspensions and discharges, and (e) would have
been one of the signers on a requisition form for equipment or materials before it went up to the
Nova employee to be signed off and approved; that after February 18, 2007 as the Nova Physical
Plant Director he (1) sees about 3 or 4 out of about 6,000 a month E-Maint system work orders,

8 General Counsel's Exhibit 25 is Respondent's position description for Director - Physical
Plant for 2008. General Counsel's Exhibit 27 was introduced to show Todaro's e-mail address
on May 22, 2007, namely "anthony@nova.edu."
9 General Counsel's Exhibit 26 is Respondent's position description for Director - Physical
Plant for 2007 and 2006. Santulli testified that the e-mail address of Todaro set forth in General
Counsel's Exhibit 27, described above, was the same e-mail address for Todaro in 2006.
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
15
(2) has done written evaluations for about six of either Assistant Directors or managers, (3) has
reviewed or approved quite a few vacation or leave requests, (4) has seen a couple of written
warnings to Nova employees come across his desk but he has not written any warnings to his
supervisors or managers, and (5) was involved in discharging someone from the Nova campus;
that he learned a little bit before February 2007 that UNICCO was no longer going to have a
contract with Nova; that he applied for a position with Nova, Respondent's Exhibit 4, he was
interviewed, and he was hired, Respondent's Exhibit 5; that prior to February 18, 2007 he was
never directly employed by Nova; that his pre and post February 18, 2007 jobs differ in that
before the employees were his employees and now he oversee the contractors that work on
campus; and that he does not directly discipline Green Source employees following Nova's
policy.
Leszier Bazile, who started working for UNICCO in June 2002, utilizing the services of
an interpreter10 testified pursuant to a subpoena that he worked as a landscaper on Nova's Main
campus; that he punched a time clock in the Eddie Griffin cafeteria; that his immediate
supervisor was Nguyen, who is the athletic grounds supervisor; that UNICCO lost its contract
with Nova; that he continued to work at Nova after UNICCO lost the contract; that he started
working for Green Source on February 18, 2007 as a landscaper on the Main campus; that Green
Source did not hire all of the landscapers who formerly worked for UNICCO; that Green Source
hired some new employees to work at Nova in that when he came to work on February 19, 2007
he saw a lot of new employees; and that he, together with his former UNICCO fellow
landscapers Jacques Jean Louis, Jean Fabre, and Dennis McGriff spoke with Nguyen in the
Eddie Griffin cafeteria about the new employees. Brazile testified as follows regarding this
conversation:
Q. Does Mr. Nguyen speak Creole?
A. No.
Q. Was your conversation with Mr. Nguyen in English?
A. Yes, in English.
Q. Can you testify in English about your conversation?
A. Yes.
Q. Tell me in English what happened during the conversation?
A. (In English) I asked them why didn't you call the old employees to come to work and
then you hired the new employees? And then he said, no because - -
Q. Who said?
A. Thai [Nugyen]. Thai said no because they make part of the union. That's why they

10 Bazile testified that he is from Haiti; that Creole is his native language; that he speaks
some English; and that he is more comfortable speaking Creole.
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
16
didn't call them. [Transcript page 79]
On cross-examination Bazile testified that he gave an affidavit to the Board in April
2007; that he looked at his affidavit before testifying at the trial herein; that he can read English;
that he did not notice that anything was incorrect in his affidavit; that in his affidavit he indicates
that Jean Fabre asked the question to Thai about why new people, why other employees weren't
called; that he indicates in his affidavit to the Board "Jean Fabre, 'a coworker, asked why they - -
asked why did they hire new people to do the job and they didn't call the other employees' "
(transcript page 85); that Fabre asked the question; that Fabre asked the question in English; that
at the time no one translated that question into Creole for him, Bazile; and that he was a
supporter of the SEIU union.
Nguyen testified that he has been Respondent's Athletic Fields Manager since February
18, 2007; that before February 18, 2007 he held the same position for UNICCO and he had four
employees working for him; that Nova did not have any role with respect to disciplining
UNICCO employees in that they were disciplined "through a UNICCO handbook"; that when he
worked for UNICCO he reported to Todaro; that he became aware of the unionization that was
going on at UNICCO and he explained to his employees that they had to make their own
decision; that he did not tell his employees that they would get fired if they were involved with
the union; that he learned in January or February 2007 that UNICCO was no longer going to
have a contract with Nova; that he applied for a position with Nova and was hired, Respondent's
Exhibits 1 and 2; that all four of his UNICCO employees, who had been with him for 6 years,
were hired by the new contractor which replaced UNICCO, after he recommended them to
Green Source; that after he was hired by Nova there were no general conversations with his
guys about the Union; that he did not tell any of his guys that they would not be hired because of
union activity; and that he recalled a conversation with Bazile and Fabre in the Eddie Griffin
shed during the first week he was hired by Nova. Nguyen testified as follows regarding this
conversation:
They had come to me, and … they were worried about their jobs, and I said, … I would
recommend you, … to the company that's gong to be doing the grounds on there, and
that's what I told them. [Transcript page 179]
Nguyen further testified that he did not remember what else was said during this conversation;
that he did not "say to any of … [his] employees that other people weren't getting hired because
they were involved with the Union" (Id. at 179-180); and that he is not fluent in Creole.
On cross-examination Nguyen testified that the four UNICCO employees who were hired
by Green Source were McGriff, Jean Louise, Leszier. and Fabre; that he did not see any new
people working on the Nova campus in the athletic fields when Green Source took over the
contract; that there were a few new employees that were hired by the new subcontractor working
at Nova in the Grounds Department; and that when he spoke with his four man crew he spoke to
them in English and they were able to communicate with him in English.
Jose Sanchez, who was subpoenaed, testified that he was employed by UNICCO Service
Company since 1999 doing maintenance work on Nova's main campus; that his immediate
supervisor was Sado; that he no longer works for UNICCO; that UNICCO lost its contract at
Nova; that Nova hired another subcontractor to do the maintenance work, namely Massey; that
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
17
he applied for a job with Massey about 2 weeks before he was laid off by UNICCO; that he gave
his application to Vladoiu who supervises Sado and reports to Todaro; that he was not hired by
Massey at Nova; that the day after he was laid off by UNICCO he spoke with Todaro, who was
"working for Nova at that time" (transcript page 89); and that he "saw him [Todaro] in his truck
and he wave on me" (transcript page 89); and that he followed Todaro to the coffee shop across
campus and when Todaro came out he spoke with him. Sanchez testified as follows regarding his
conversation with Todaro:
Q. What did you talk to him about?
A. I asked him if I was going to have a job and what was going on? And he said no [sic]
at this moment. Then he asked me if I was for the union? I tell him yes and then he tell
me - -
Q. I'm sorry; I didn't understand that. Can you repeat that?
A. Which one?
Q. What you just said?
A. When I ask him - - well, he ask me if I am for the union.
JUDGE WEST: He asked you what?
Q. BY MS. KUCERA: What did he ask you?
A. Oh, he ask [sic] me if I was with the union.
Q. Did you respond?
A. Yes. I say yes, and he make [sic] a comment after that. You with the union, right, but
he say you was with the union, right? I say yes. And then he told me why you no go on
the line? They might pay you with your friend Steve. And I tell him that I don't think they
will pay me for it.
Then, after that, he ask [sic] me - - I ask him, I need to work, you know. Then he
tell [sic] me to call him like in three months to see what's going on. He will know better
what's going on. Then I tell him that I will call him around like in a month, but I really
never call him back.
Q. Do you know what - - you testified about Steve. Do you know what Steve Mr. Todaro
was talking about?
A. Yes.
Q. Who was that?
A. Steve, the painter.
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
18
Q. Did he work for UNICCO?
A. Yes. [Transcript pages 90 and 91]
Sanchez further testified that there were picket lines in front of University Drive in front of the
Nova campus before UNICCO lost the contract; that he went to one and he saw McGonigle
there; and that he did not participate in the first picket line but he did go to the second one.
On cross-examination Sanchez testified that before he worked for UNICCO he did work
for Massey; that Sado gave him the Massey application and told him that he should fill it out;
that sometime before that Todaro told UNICCO employees at two meetings that its contract with
Nova was going to be terminated and they should apply for positions; that he participated in one
of the two picket lines, the second one, in front of the Nova campus, which was about 3 months
before he was laid off, and it was a strike; that instead of going to work he went out and
picketed; that he was a UNICCO employee at the time; that when he went out on strike he
carried a broom; and that a lot of people told him that they saw him on the strike line or picket
line.
Todaro testified he did not recall any general conversation with his employees about the
Union. He further testified as follows:
Q. Do you recall a conversation with Jose Sanchez near a coffee shop around that first
week that you were hired?
A. No, I do not. [Transcript page 194]
On cross-examination McGonigle testified that between April 2007 and the end of
September 2008 he worked for SEIU as a union organizer; that he was laid off in September
2008; and that he also worked for SEIU for approximately 3 weeks on the campaign of then
Senator Barak Obama.
John George, who at the time of the trial herein had worked for Nova for approximately 4
months and who is Respondent's Director in the Public Safety Department, testified that Nova
has the current rule requiring permission to solicit in its policy because "it gives the university
the opportunity to register and record and notify Public Safety that there is some outsider on the
campus conducting business." (transcript page 138 with emphasis added) On cross-examination
George testified that he did not have any personal knowledge of the incidents involved in this
proceeding.
Analysis
Paragraph 6 of the complaint alleges that since on or about March 1, 2006, Respondent
has maintained and enforced the following rule in the Nova Southeastern University Campus
Safety and Traffic Handbook: "No solicitation is allowed on an NSU campus or facility without
the permission of the NSU Executive Administration."
Counsel for General Counsel contends on brief that the Board holds that it is unlawful for
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
19
an employer to prohibit employees from engaging in union solicitation and/or distribution on
their employer's property on non-working time in non-working areas, in the absence of special
circumstances making the rule necessary in order to maintain production or discipline, Republic
Aviation v. NLRB, 324 U.S. 793, 803, n.10 (1945); that Respondent's rule as written and as
enforced is overbroad because it restricts its own, as well as subcontractor's employees from
solicitation and distribution among co-workers; and that Respondent has not proven that there
are any special circumstances requiring its overbroad and invalid rule.
Respondent on brief argues that Nova is an educational institution whose unique
circumstances require a strict solicitation policy to protect its distinctive security needs; that
while the maintenance of a rule that reasonably tends to chill Section 7 rights even absent
evidence of enforcement violated Section 8(a)(1), Lafayette Park Hotel, 326 NLRB 824, 825
(1998), Nova's solicitation rule at issue is not contained in its employee manual and contains no
reference to employees; that the rule is part of a safety program that has been in place for over
two decades and is "not generally applied to management of Nova employees. (Tr. 214-215)"
(Respondent's brief, page 10, with emphasis added); and that "educational campuses experience
a unique threat of violence, as demonstrated by the shootings at Virginia Tech, Texas Tech, and
Columbine High School" (Id. at 10).
Contrary to the assertion of Respondent on page 10 of its brief, (a) nowhere on pages 214
and 215 of the transcript of the trial herein did Santulli testify that Nova's involved solicitation
rule "is not generally applied to management of Nova employees,"11 and (b) sadly, what
Respondent labels as a "unique threat" is something which has occurred, among other places, in
businesses, in post offices, on hospital property, in law offices, in a Texas cafeteria, in shopping
malls, in at least one stock brokerage that I am aware of, and in courthouses resulting in the
deaths of, among others, judges. Respondent has not shown that any of the three instances it cites
involved employees of subcontractors who were stationed on and were working on school
grounds. Rather, if in referring to Texas Tech, Respondent means the University of Texas in
Austin, Texas in 1966, in each of the instances cited by Respondent, the alleged perpetrator(s)
was(were) a student(s) at the involved school.12 Respondent does not show how its argument is
relevant to the matter at hand. As correctly contended by Counsel for General Counsel,
Respondent has not proven that there are any special circumstances requiring its overbroad and
invalid rule. There is no evidence of record that the involved rule was actually communicated to
employees in such a way as to convey an intent clearly to permit solicitation in nonworking areas
when employees were not actively at work. The rule at issue is overly broad and discriminatory
on its face. As the Board pointed out in Brunswick Corp., 282 NLRB 794, 795 (1987):
… any rule that requires employees to secure permission from their employer as a
precondition to engaging in protected concerted activity on an employee's free time and
in nonwork areas is unlawful. Further, the Board held in Schnadig Corporation, 265
NLRB 147, 157 (1982) … that the mere existence of an overly broad rule tends to
restrain and interfere with employees' rights under the Act even if the rule is not

11 Indeed, when he testified as a 611(c) witness, Santulli testified that the policies in Nova's
Campus Safety and Traffic Handbook must be followed by any individual entering Nova
property, including - as here pertinent - Nova staff and faculty.
12 It appears that the alleged perpetrator in the University of Texas Austin shooting was a
former student of that school.
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
20
enforced. We find, accordingly, that the Respondent's promulgation and maintenance of
its no solicitation/no distribution rule constituted a per se violation of Section 8(a)(1).
The Board in Teletech Holdings, Inc., 333 NLRB 402, 403 (2001) indicated as follows:
… any distribution rule that requires employees to secure permission from their employer
prior to engaging in protected concerted activities on an employee's free time and in
nonwork areas is unlawful. …
….
When a rule of this kind is found presumptively unlawful on its face, the
employer bears the burden to show that it communicated or applied the rule in a way that
conveyed a clear intent to permit distribution of literature in nonworking areas during
nonworking time. Ichikoh Mfg., 312 NLRB 1022 (1993), enfd. 41 F. 3d 1507 (6th Cir.
1994). A clarification of an ambiguous rule or a narrowed interpretation of an overly
broad rule must be communicated effectively to the employer's workers to eliminate the
impact of a facially invalid rule. Laidlaw Transit, Inc., 315 NLRB 79, 83 (1994). Any
remaining ambiguities concerning the rule will be resolved against the employer, the
promulgator of the rule. See Norris/O'Bannon, 307 NLRB 1236, 1245 (1992)
The rule at issue is unlawful on its face. Respondent did not show that it communicated
effectively to employees to eliminate the impact of this facially invalid rule. Respondent violated
the Act as alleged in paragraph 6 of the complaint.
Paragraph 7 of the complaint alleges that on or about August 22, 2006 Respondent, by
David Neely, outside the maintenance shop on its Fort Lauderdale campus, interfered with the
distribution of union literature by employees of UNICCO to their co-workers during non-
working time and in a non-working area.
Counsel for General Counsel contends on brief that the Board has long held that
employers may not maintain or enforce rules denying their off-duty employees access to parking
lots, gates and other outside non-working areas, except where justified by business reasons, Tri-
County Medical Center, 222 NLRB 1089 (1976); that here McGonigle was prohibited from
leafleting outside the Physical Plant building and in the parking lot, non-working areas, before
the start of the work day, a non-working time; that Respondent unlawfully enforced its unlawful
no-solicitation policy against McGonigle; that the Board holds that a subcontractor's employees
may engage in solicitation and distribution among co-workers even while working on the
property of a contractor, Southern Services, 300 NLRB 1154, 1155 (1990), enfd. 954 F.2d 700
(11th Cir. 1992) (janitors working for subcontractors at a Coca-Cola plant entitled to distribute
union materials to co-workers); that since McGonigle leafleted only co-workers, this case is
distinguishable from New York New York Hotel & Casino v. NLRB, 313 F.3d 585 (D.C. Cir.
2002) denying enforcement and remanding New York New York Hotel & Casino, 334 NLRB 762
(2001) and New York New York Hotel & Casino, 334 NLRB 772 (2001); that New York New
York Hotel & Casino involves the access rights of a subcontractor's off-duty employees when a
subcontractor's employees distribute or solicit the general public; that Respondent cannot require
a subcontractor's employees to request permission prior to the distribution of union literature on
non-working time and in non-working areas; that Respondent would have the discretion to
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
21
eliminate an employee's Section 7 rights by arbitrarily refusing to allow or limit distribution of
solicitation; and that Santulli, who would make the decision whether to grant permission,
admitted that he would suggest to a subcontractor's employee, like McGonigle, making a request
to distribute union literature during non-working time and in non-working areas, to distribute in
the public swale.
Respondent argues on brief that it is not required to allow non-employees to solicit on its
campus; that its solicitation policy does not violate the rights of employees of contractors; that it
is well settled that a property owner/employer has substantial rights to limit activities by
outsiders on its private property, NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956) and
Lechmere v. NLRB, 502 U.S. 527 (1992); that Nova's rule is not contained in its employee
manual and contains no reference to employees13; that given the broad authority of a property
owner to restrict outsiders, it is clear that Nova is permitted to prohibit the distribution of
literature by McGonigle on its property; that McGonigle was an 'invitee' to be on Nova's
property solely and exclusively to perform his duties as a UNICCO employee; that if McGonigle
exceeds the scope of this invitation for any reason he becomes a trespasser, and as such, Nova
had a right to request McGonigle cease distributing literature in the parking lot area; that
McGonigle's discipline had no negative effect on him; that "after this verbal warning McGonigle
was allowed to distribute union paraphernalia (Tr. 124)" (Respondent's brief, page 11 with
emphasis added)14; that Southern Services, 300 NLRB 1154, (1990), enfd. 954 F.2d 700 (11th
Cir. 1992) (holding that subcontractor employees have a right to distribute literature where the
workplace is exclusively on contracting employer's premises) is not otherwise controlling in that
this case was decided before Lechmere, supra,15 and has been discredited by the D.C. Circuit
Court in New York, New York, LLC v. NLRB, 313 F.3d 585 (D.C. Cir. 2002), NLRB v. Pneu
Elec., Inc., 309 F.3d 843, 853-55 (5th Cir. 2002), and ITT Indus., Inc.v. NLRB, 251 F.3d 995
(D.C. Cir. 2001); that while the court in New York, New York, LLC, supra, noted that the United
States Supreme Court has never addressed the issue of whether a contractor working on property
under another employer's control can distribute literature, the D.C. Circuit Court of Appeals
specifically discredited Southern Services, supra, reasoning at page 589 that Southern Services
was contrary to the opinion of the Supreme Court's holding in Lechmere; that the court in New
York, New York, LLC, noted at page 589 that the Restatement states "a 'conditional or restricted
consent to enter land creates a privilege to do so only insofar as the condition or restriction is
complied with' "; that "[w]hile Southern could not identify why the subcontractor's employees
would be trespassers while soliciting but employees would not be, the point of Lechmere is that
the Section 7 rights of employees entitles them to engage in organizing on its employer's
premises - 'nonemployees do not have comparable rights.' Id." (Respondent's brief, page 12); and
that, accordingly, McGonigle is not afforded the same rights as Nova employees with respect to
union solicitation on campus.

13 As noted above, Santulli testified when called as a 611(c) witness that the policies in the
Campus Safety and Traffic Handbook must be followed by any individual entering the Nova
property, including -as here pertinent - Nova staff and faculty.
14 As indicated above, McGonigle testified that in his October 17, 2006 affidavit to the Board
he indicated that he recently distributed union buttons at the UNICCO time clock in the Physical
Plant, he was not prohibited from doing this, and he believed that the UNICCO janitor supervisor
saw him. Whether this amounts to "allowed" is questionable.
15 While the Board's decision in Southern was decided before Lechmere, the Eleventh
Circuit's decision in Southern was decided after Lechmere.
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
22
In my opinion Respondent violated the Act as alleged in paragraph 7 of the complaint.
Neely did not testify at the trial herein. Consequently the testimony of McGonigle is
unchallenged. McGonigle's testimony about what happened with Neely is credited.
Section 7 of the Act guarantees employees "the right to self-organization, to form, join or
assist labor organizations…." And Section 8(a)(1) of the Act specifies that "[i]t shall be an unfair
labor practice for an employer - … to interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in section 7…."
McGonigle worked on the involved Nova campus on a continuous, regular, and exclusive
basis for years. When he hand billed in the Nova parking lot on the campus on August 22, 2006
it was a working day but McGonigle had not yet punched in on the time clock. Relying on the
no-solicitation rule found above to be unlawful, Nova prohibited McGonigle from giving flyers
to his UNICCO co-workers in a non-working area while he and they had not yet clocked in.
Fabric Services, 190 NLRB 540 (1971) involved an employee of Southern Bell who was
an installer repairman being dispatched to Fabric Services' plant to perform work on Southern
Bell's telephone communications located at the plant. He arrived at the plant wearing a pen
pocket protector which carried the legend, "CWA [Communication Workers of America], IT
DOESN'T COST - IT PAYS, JOIN CWA-AFL-CIO." After the Southern Bell repairman began
working, he was told by Fabric Services' personnel manager that he could not work at the plant
while wearing the pocket protector. The repairman left and returned to Southern Bell's repair
center. His supervisor told him to remove the pocket protector and return to his assignment at
Fabric Services. He did. In deciding whether both Southern Bell and Fabric Services violated the
Act, the trial examiner (now Administrative Law Judge, and for ease of reference will henceforth
be referred to as such) rejected the defense of Fabric Services that since it was not the
repairman's employer, it cannot, as a matter of law, be found to have violated Section 8(a)(1) of
the Act by its actions toward him. The judge at 541-542 concluded as follows:
…. I find no basis, either in the declared policy of the Act or in any delineating provision
of it for construing Section 8(a)(1) as safeguarding employees in the exercise of the
Section 7 rights only from infringements at the hands of their own employer. To the
contrary, the specific language of the Act clearly manifests a legislative purpose to extend
the statutory protection of Section 8(a)(1) beyond the immediate employer-employee
relationship. Thus Section 8(a)(1) makes it 'an unfair labor practice for an employer - to
interfere with, restrain, or coerce employees in the exercise of rights guaranteed in
Section 7.' And Section 2(3) declares, 'The term employee shall include any employee,
and shall not be limited to the employees of a particular employer, unless the Act
explicitly states otherwise ….' Moreover, Section 2(9), which defines 'labor dispute' as
including 'any controversy … regardless of whether the disputants stand in the proximate
relationship of employer and employee' father discloses a statutory aim to give the Act's
various prohibition a broad rather than a narrow reading, except, of course, where the
prohibition is limited in its internal context or is specifically restricted by other express
language of the Act. See Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 192. [Emphasis
in original]
….
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
23
It is true that Section 8(a)(3), like Section 8(a)(1), speaks of 'an employer' rather than the
employer. But the very nature of the conduct proscribed by Section 8(a)(3) provides
internal justification for imparting a more restrictive construction to the words 'an
employee' as there used. Section 8(a)(3) is directed to 'discrimination with regard to hire
or tenure of employment or any term or condition of employment.' Action of that kind
can only be effectively accomplished (or rectified) by the one who has actual and
ultimate control of the hire, tenure, or terms and conditions of employment of employees
affected thereby. No similar justification exists for giving a like restrictive construction to
Section 8(a)(1) in a situation where only employee Section 7 rights and no discrimination
in employment is involved. In such a situation the absence of a proximate employer-
employee relationship may still have a relevant bearing on the factual question as to
whether the conduct complained of was an interfering, coercive, or restraining kind. But
it does not itself supply a statutory mandate for dismissal. [Emphasis in original]
….
To exonerate Fabric Services from statutory responsibility in these circumstances simply
because … [the Southern Bell repairman] was not its employee, would, I believe, subvert
the clear policy and intent of the Act. Having 'knowingly participate[d] in the effectuation
of an unfair labor practice, [Fabric Services] place[d] itself within the orbit of the Board's
corrective jurisdiction.' N.L.R.B. v. Gluck Brewing Co., 144 F.2d 847, 855 (C.A. 8)
The Board adopted the findings and conclusions of the judge.16 This Nova Southeastern
University case only involves Section 8(a)(1) of the Act; it does not involve Section 8(a)(3) of
the Act.
As pointed out by the court in Southern Services, Inc. v. NLRB, 954 F.2d 700, 704 (11th
Cir. 1992) "[t]he modern practice of subcontracting for services does not automatically curtail
Section 7 rights." Instead of having its own on-site employees doing the painting, landscaping,
maintenance, and janitorial work, Nova, as here pertinent, entered into a contract with UNICCO
in 2001 (effective from July 1, 2000) to provide certain of these services. Under the terms of the
contract, Nova furnished "all supplies necessary to completely and effectively perform all work

16 In a dictum footnote the judge in Fabric Services indicated that his view of the case would
have been different had it involved, as here pertinent, a prohibition against employee solicitation
instead of a prohibition against the wearing of union insignia. The judge pointed out that the
wearing of union insignia is a form of self-expression protected by Section 7, rather than a form
of employee solicitation, and as a corollary to its right to bar outside organizers from coming on
its property, Fabric Services could have legitimately insisted, without any showing of special
circumstances, that the Southern Bell repairman as an invitee on its property for a limited
purpose confine himself to the purpose for which he had been allowed to enter its premises and
refrain from attempts to organize Field Services' employees. In the case at hand, McGonigle
was not soliciting Nova's employees. Additionally, the UNICCO employees were not outsiders
on Nova's property on a short-term basis to do Bell communications repair work. The contract
between Nova and UNICCO was entered into in May 2001 (effective from July 2000). UNICCO
employees, including McGonigle, had worked on the jobsite at Nova continuously, exclusively,
and regularly for years. Other factors discussed below also distinguish the UNICCO/Nova
situation from the dictum situation described in the judge's footnote.
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
24
defined in this Contract."17 In effect, UNICCO employees who work continuously, exclusively,
and regularly at the Nova jobsite as janitors, painters, and landscapers, etc., replace or do the
work which could be done by employees of Nova. Undoubtedly, one of the considerations with
this approach is that Nova does not have the expense of full benefits for these employees. As
noted above, from the flyer that McGonigle was handing out to his co-workers on August 22,
2006, General Counsel's Exhibit 29, it appears that UNICCO's janitors did not have health
insurance.
Also, as pointed out by the United States Court of Appeals, Eleventh Circuit in Southern
Services, Inc., supra at 704
The right of employees 'to self organize and bargain collectively established by § 7 …
necessarily encompasses the right effectively to communicate with one another regarding
self organization at the jobsite.' Beth Israel Hospital v. NLRB, 437 U.S. 483, 491, 98
S.Ct. 2463, 2469, 57 L.Ed 2d 370 (1978) (emphasis added) (footnote omitted). And the
workplace "is a particularly appropriate place for the distribution of § 7 material, because
it 'is the one place where [employees] clearly share common interests and where they
traditionally seek to persuade fellow workers in matters affecting their union
organizational life …." ' Eastex, [Inc. v. NLRB, 437 U.S. 556, 570-73, 98 S. Ct. 2505,
2515-16, 57 L.Ed.2d 428 (1978)] 98 S. Ct. at 2517 (quoting Gale Products, 142 NLRB
1246, 1249 (1963). In this case, [Respondent] Coca-Cola's [fenced in and guarded]
[c]omplex was … [the contracting employee's] exclusive workplace, and provided the
only practical site where … [the contracting employee] and other … [of the contracting]
employees assigned to the same subcontract could distribute union literature and discuss
union organization among themselves. [Emphasis in the original]
….
When the relationship situates the subcontract employee's workplace continuously
and exclusively upon the contracting employer's premises, the contracting employer's
rules purporting to restrict that subcontract employee's right to distribute union literature
among other employees of the subcontractor must satisfy the test of Republic Aviation
[Corp. v. NLRB, 324 U.S. 79, 65 S. Ct. 982, 89 L.Ed. 1372 (1945)]
In New York New York Hotel and Casino, 313 F.3d 585, 587-590 (D.C. Cir. 2002)

17 The following appears on page 9 of the contract, which was entered into in May 2001,
which continued for 3 consecutive years, and which Nova renewed:
13. EQUIPMENT, MATERIALS, AND SUPPLIES
A. NSU shall furnish all supplies necessary to completely and effectively perform all
work defined in this Contract.
B. A list of all items required to be used by Contractor shall be submitted to the
Administrator prior to the use of the item in the performance of the work.
The following appears on page 1 of the contract:
2. CONTRACTOR'S PERFORMANCE
A. Contractor shall furnish all necessary management, supervision, labor, technical
support and other accessories and services for the cleaning and maintenance of the
Facility, and other services as described in the Specifications.
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
25
(hereinafter referred to as NYNY) the court concluded, in part, as follows:
In Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945),
the Court sustained the Board's rulings that off-duty employees have § 7 rights to engage
in organizing activities on their employer's premises in non-work areas - rights the
employer may not infringe absent a showing that the ban is necessary to maintain
workplace order and discipline. id. at 803, 65 S.Ct. 982. On the other hand, the Court
held in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, … (1956), that 'an employer may
validly post his property against nonemployee distribution of union literature' to
employees, at least if the nonemployee union organizers may reach the employees
through other means. Id. at 112 …. Highlighting the difference between the rights of
employees and nonemployees, the Court explained in a later case that a 'wholly different
balance [is] struck when the organizational activity [is] carried on by employees already
rightfully on the employer's property, since the employer's management interests rather
than his property interests [are] there involved.' Hudgens v. NLRB, 424 U.S.507, 521-22,
n. 10 …. [Brackets in original]
This court's opinion in ITT Industries, Inc. v. NLRB, 251 F. 3d 995, 1000-03 (D.C.
Cir. 2001), thoroughly analyzed these Supreme Court decisions and others. There, we
explained that although there were suggestions in Supreme Court opinions that the
controlling distinction for § 7 purposes was between invitees and trespassers, see Eastex,
Inc. v. NLRB, 437 U.S. 556 …; Hudgens, 424 U.S. at 521-22 …, the Court's most recent
pronouncement in Lechmere, Inc. v. NLRB, 502 U.S. 527 …, reaffirmed the principle
announced in Babcock & Wilcox that the National Labor Relations Act confers rights
upon employees, not nonemployees, and that employers may restrict nonemployees'
organizing activities on employer property. See ITT, 251 F.3d at 1002-03; see also United
Food & Commercial Workers v. NLRB, 74 F.3d 292, 295 (D.C. Cir. 1996)
The Supreme Court has never addressed the § 7 rights of employees of a
contractor working on property under another employer's control ….
….
As the Restatement puts it, a 'conditional or restricted consent to enter land creates a
privilege to do so only in so far as the condition or restriction is complied with.'
RESTATEMENT (SECOND) OF TORTS § 168 (1965). The union organizers in
Lechmere were in a similar position. They were handing out leaflets in a shopping center
parking lot jointly owned by Lechmere, which had a store in the center. No one doubted
that the organizers were trespassers because they violated Lechmere's no solicitation
policy. See 502 U.S. at 530, 540, …. The Southern court could find no principled reason
why, if the subcontractor's employee were a trespasser, employees of Coca-Cola [the
property owner] would not also be trespassers when they handed out union literature on
company property. But that is the very point of Lechmere, as we explained in ITT
Industries: the § 7 rights of employees entitle them to engage in organization activities on
company premises.[18] See 502 U.S. 537 …. Nonemployees do not have comparable

18 Obviously the right is not absolute in that the employer can have a lawful no solicitation
rule, the employees can be prohibited from engaging in handbilling on company time and in a
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
26
rights.
….
… the critical question in a case of this sort is whether individuals working for a
contractor on another's premises should be considered employees or nonemployees of the
property owner. Our analysis of the Supreme Court's opinions, unlike the Board's in
Southern [300 NLRB 1154] and Gayfers [324 NLRB 1246 (1997)], yields no definitive
answer.
No Supreme Court case decides whether the term 'employee' extends to the
relationship between an employer and the employee of a contractor working on its
property. No Supreme Court case decides whether a contractor's employees have rights
equivalent to the property owner's employees - that is, Republic Aviation rights to engage
in organizational activities in non-work areas during non-working time so long as they do
not unduly disrupt the business of the property owner - because their work site, although
on the premises of another employer, is their sole place of employment.
The facts in NYNY and the case at hand differ in significant ways. First in NYNY the
casino, NYNY, leased space on its property to an independent management company, Ark Las
Vegas Restaurant (Ark), to run a food service facility. Here UNICCO did not lease space from
Nova. UNICCO's employees worked out of a Nova building, just like a Nova employee would
do if Nova used its own employees to perform the jobs involved. Second, there is no showing in
NYNY that the property owner supplied everything Ark needed to operate the two restaurants and
several fast food outlets in a food court on NYNY's premises. It is just the opposite with Nova in
that Nova supplied UNICCO employees with what they needed to work at the Nova premises.
Third, in NYNY the food operations of Ark were complementary to the casino operation of
NYNY. In Nova the work performed by UNICCO employees was not complementary to the

work area and, as indicated above, a company could show that a ban is necessary to maintain
workplace order and discipline. It is noted that in ITT Industries, Inc. v. NLRB, 251 F.3d 995,
1004 (D.C. Cir. 2001) the court refers to access rights enjoyed by "on-site employee invitees." If
an employee of the property owner engaged in handbilling in violation of these prohibitions,
would that employee lose his or her "invitee" status and become a trespasser since the involved
§ 7 right is not absolute?
Also in ITT Industries, Inc., which involved employees of the property owner who worked
at a location other than the one involved in that proceeding, the D.C. Circuit court remanded the
case to the Board to determine that § 7 indeed extends nonderivative access rights to off-site
employees of the property owner, and to adopt a balancing test that takes proper account of an
employer's predictably heightened property concerns. As pointed out in Hudgens, 424 U.S. 507,
522 n.10 (1976) "A wholly different balance was struck when the organizational activity was
carried on by employees already rightfully on the employer's property, since the employer's
management interests rather than his property interests were there involved. Republic Aviation
Corp. v. NLRB, 324 U.S. 793 …. This difference is 'one of substance.' NLRB v, Babcock &
Wilcox Co., 351 U.S. at 113 …." It appears, therefore, that property interests would not have to
be considered for employees already rightfully on the employer's property. It also appears that
there is a question as to whether just being an employee of the employer is sufficient for § 7
rights to attach with respect to an employer's property if the employer's employee does not work
on that property but rather is an off-site employee.
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
27
function of Nova. Rather, the work performed by UNICCO employees on Nova's property was
work that normally would be performed by the employees of the property owner. UNICCO did
not provide food for visitors to the owner's property. Rather, UNICCO provided for the
continuous smooth operation of the function of the property owner, Nova. Fourth, in NYNY it
was not shown that the property owner's policy against solicitation was unlawful. In Nova the
property owner's no-solicitation rule has been found above to be unlawful. Fifth, in NYNY the
off-duty Ark employees stood at the main entrance on NYNY's property distributing union
handbills to customers entering and exiting, and the handbills stated that Ark paid its employees
less than comparable unionized workers and urged the customers to tell Ark to sign a union
contract. In Nova the off-duty UNICCO employee, McGonigle, did not handbill anyone other
than his UNICCO co-workers while they were off-duty coming into work, the hand billing was
done in a parking lot on Nova's campus, and McGonigle did not try to involve non UNICCO
employees on Nova's campus (like the Ark employees who appealed to casino customers in
NYNY) in the attempt to convince the President of Nova that the janitors employed on the Nova
campus should have living wages and health care. Sixth, in NYNY a NYNY security supervisor,
joined by a member of NYNY's management, told the Ark employees that they were trespassing
and that they were not allowed to distribute literature on NYNY's property. When the Ark
employees refused to leave, local law enforcement officers issued trespass citations to the
handbillers. Trespass citations were issued to Ark employees on two other occasions. In Nova
the security guard, Neely, who spoke to McGonigle instructed McGonigle to stop passing out
leaflets. Neely did not tell McGonigle that he was trespassing. No one mentioned anything to
McGonigle about trespassing. Notwithstanding that McGonigle officially complained to Nova's
management, Vincent, Bias (through Vincent), Lemme, and Santulli (through Lemme) did not
even mention trespassing to McGonigle. Documentation introduced at the trial in Nova shows
that Nova did "trespass" individuals other that McGonigle who hand billed on the Nova campus.
So Nova was aware that this remedy was available to it and it used this remedy with respect to
individuals other than McGonigle. In other words, Nova did not treat McGonigle as some who
should be "trespassed" for leafleting his co-workers in the parking lot while they all had not yet
clocked in. Nova treated McGonigle as it would one of its own employees. If theoretically
McGonigle was an invitee and his failure to abide by Nova's unlawful no-solicitation policy
changed his status to that of a trespasser, Nova did not take this approach since Nova did not take
any advantage of any theoretical change in the status of McGonigle occasioned by his remaining
on Nova's property after he was stopped from hand billing. If the theoretical trespass approach is
even a valid approach in the circumstances of this case, Nova waived its theoretical opportunity
to treat McGonigle as a trespasser. In actuality Nova never intended to treat McGonigle as a
trespasser. McGonigle was not an outsider seeking access to Nova's property. McGonigle was
not on Nova's property as an invitee doing short-term work as was the Southern Bell repairman
in Fabric Services. With respect to access, McGonigle was treated as an employee of Nova
would be. Indeed, as shown by General Counsel's Exhibit 18, Nova's incident report, "Mr.
McGonigle was given a copy of NSU's no solicitation policy and asked by Public Safety to
please follow the policy in the future." As held in Fiber Services, for purposes of Section 8(a)(1)
of the Act the statutory protection of that section can be extended beyond the immediate
employer-employee relationship to remedy a situation where the employee's Section 8(a)(1)
rights have been infringed at the hands of a property owner. As noted above, Section 2(3) of the
Act declares that "The term employee shall include any employee, and shall not be limited to the
employees of a particular employer, unless the Act explicitly states otherwise …." Also, as
pointed out in note 3 of Hudgens v. NLRB, 424 U.S. 507, 510 (1976),
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
28
"[w]hile Hudgens [the property owner] was not the employer of the employees involved
in this case [which involved primary picketing within the confines of a privately owned
shopping center], it seems to be undisputed that he was an employer engaged in
commerce within the meaning of ss 2(6) and (7) of the Act, 29 U.S.C. ss 152(6) and (7).
The Board has held that a statutory 'employer' may violate s 8(a)(1) with respect to
employees other than his own." [Citations omitted]
Nova admits that it is an employer engaged in commerce within the meaning of Sections 2(6)
and (7) of the Act. In the language - modified in the indented quote below solely to reflect the
names of those involved herein - of Fabric Services, at 542,
To exonerate … [Nova] from statutory responsibility in these circumstances simply
because … [McGonigle] was not its employee, would, I believe, subvert the clear policy
and intent of the Act. Having 'knowingly participate[d] in the effectuation of an unfair
labor practice, … [Nova] place[d] itself within the orbit of the Board's corrective
jurisdiction.' N.L.R.B. v. Gluck Brewing Co., 144 F.2d 847, 855 (C.A. 8) [Bracketed
material other than the names of those involved herein appears in original]
In NLRB v. Pneu-Electric, Inc., 309 F.3d 843, 853 - 855 (5th Cir. 2002) the court
concluded, in part, as follows:
Babcock and Lechmere involved non-employee union organizers trespassing on
employer property and attempting to organize the employer's employees by leafleting and
other means. ITT Indus. involved off-site employees not employed at the site of the
organizing effort. Neither situation is close to the circumstances here, where bona fide
employees of an employer operating a distinct work site on the property of another
statutory employer, by contract, are the subjects at issue. On its face, the situation appears
more closely related to that in Republic Aviation, in which the Court upheld employees'
rights under the Act to conduct union solicitation and organizing activities on their own
time, subject to reasonable rules, even on the employer's property. 324 U.S. at 804 and n.
10 ….
…. While addressing the rule of Babcock and its progeny, and emphasizing the
distinction between trespassers and nontrespassers implied in Babcock and discussed
more fully in later cases, the Eleventh Circuit [in Southern Service, Inc. v. NLRB, 954
F.2d 700 (11th Cir. 1992)] did not address the more recent Lechmere case, decided the
previous month, with its greater emphasis on the difference in access rights between
employees and nonemployees.
….
Here, the Board relies on Gayfers and Southern Serv. to determine that Pneu-Elect
employees Zylks and Aycock 'worked exclusively for Pneu-Elect at the Nan Ya site and
had full employee rights.' See 332 N.L.R.B. No. 60 …. We defer to the Board's
reasonable interpretation of the Act. :Lechmere, 502 U.S. at 536 …. 'When it is unclear
under established law whether a category of workers enjoys free-standing, nonderivative
access rights [as opposed to rights derived through the § 7 rights of the employees of the
property owner], then a court is obligated to defer to reasonable judgments of the Board
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
29
in its resolution of cases that have not as yet been resolved by the Supreme Court.' ITT
Indus., 251 F.3d at 1003 (emphasis in original). We agree with the D.C. circuit and are
concerned that the Board's determination that Republic Aviation controls the contractor-
employee situation before us has not provided a sufficiently reasoned analysis in light of
Lechmere regarding why the Pneu-Elect employees should also be considered employee
as to Nan Ya for the purposes of the Act. The Board did not address the issue at all in
Southern Serv. and did not provide a detailed analysis in Gayfers to 'establish the locus of
accommodation,' Lechmere, 502 U.S. at 538 … due to a contractor-invitee by a
contracting employer. In the Board's Order before us, there is no further analysis. This is
a category of workers not previously addressed in Supreme Court precedent. Republic
Aviation may well be the correct standard to employ as against the contracting employer,
considering that a statutory employer may violate § 8(a)(1) with respect to employees
other than his own. Hudgens, 424 U.S. at 510 n.3 ….
[Emphasis in original]
Regardless, the Board must first determine, considering Lechmere, explicitly
whether the term 'employee' encompasses this relationship between an employer and a
contractor-invitee for the purposes of the Act. That will establish the appropriate locus of
accommodation.
The facts in NLRB v. Pneu-Electric, Inc. (Pneu) and the case at hand differ in significant
ways. First, in Pneu the business of the property owner involved a plastic plant. Pneu was an
electric contracting company bought onto the property to do electrical work such as working on a
transformer, installing electrical conduit, pulling wire, etc. Unlike the situation in Nova, this is
not something one would expect that your average worker in a plastic plant would be able to do.
This was more akin to the telephone repairman in Southern. In other words, people who do
commercial or industrial electrical work normally have special training and are normally licensed
to do the work. Pneu employees were not doing painting, janitorial, or landscaping work like
UNICCO's employees on Nova's campus. Second, with respect to the duration of the work,
Pneu's contract was short-term in that it ran from the spring to December of the same year.
UNICCO's contract with Nova ran from 2001 (effective in 2000) to 2007, which could be
described as long-term. It ended after the union issues arose allegedly because of a performance
issue. The performance issue was never specifically described. Third, the two Pneu employees
who were trying to organize other Pneu employees during work time and in a work area on the
plastic plant job site were not only forced to leave the job site after they refused to stop but they
were told they were fired by a member of the management of the property owner.19 As noted
above, with respect to the assertion of property rights, Nova asked McGonigle not to hand out
leaflets to his co-workers - while they were in the parking lot and they were off the clock -
anymore, and he was given a copy of Nova's no solicitation policy. Fourth, Pneu involved both
Section 8(a)(1 and (3). Nova involves only Section 8(a)(1).
Both the Fifth Circuit in Pneu and the D.C. Circuit in ITT and NYNY fault the Eleventh
Circuit's Southern decision (decided February 28, 1992) for not addressing the United States
Supreme Court decision in Lechmere (decided January 27, 1992). The Fifth Circuit indicates that
Lechmere should have been addressed because of its greater emphasis on the difference in access

19 Later, the two employees were told by the owner of Pneu that the landowner did not have
the authority to fire them.
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
30
rights between employees and nonemployees. In ITT the D.C. Circuit indicates that the
Eleventh's Circuit's decision in Southern does not account for Lechmere's express reaffirmation
of the employee/nonemployee distinction, particularly its reliance on the statutory mention of the
term "employee." The D.C. Circuit at 1005 in ITT also indicates as follows:
Lechmere makes clear that, even as to on-site employees, the Board must balance the
conflicting interests of employees to receive information on self-organization on the
company's property from fellow employees during nonwork time with the employer's
right to control the use of his property. See Lechmere, 502 U.S. at 534, 112 S.Ct. 841.
[Emphasis added]
The Court at 534 in Lechmere does not "make… clear that, even as to on-site employees, the
Board must balance the conflicting interests of employees to receive information on self-
organization on the company's property from fellow employees during nonwork time with the
employer's right to control the use of his property." (emphasis added) Indeed, such a holding in
Lechmere would have overruled the Court's prior conclusion in note 10 in Hudgens that "[a]
wholly different balance was struck when the organizational activity was carried on by
employees already rightfully on the employer's property, since the employer's management
interests rather than his property interests were there involved. Republic Aviation Corp. v. NLRB,
324 U.S. 793 …. This difference is 'one of substance.' NLRB v, Babcock & Wilcox Co., 351 U.S.
at 113 …." And the Court in Eastex, Incorporated, 437 U.S. 556, 573 (1978) indicated
"petitioner's reliance on its property right is largely misplaced. Here, as in Republic Aviation,
petitioner's employees are 'already rightfully on the employer's property,' so that in the context of
this case it is the 'employer's management interests rather than [its] property interests' that
primarily are implicated. Hudgens, supra, 424 U.S. at 521-522, n.10." At page 537 in Lechmere,
which involved nonemployee (outsiders, strangers to the property) union organizers entering the
employer's property, the majority indicates as follows:
In Babcock [which was decided almost 20 years before Hudgens and over 22
years before Eastex], as we explained above, we held that the Act drew a distinction 'of
substance,' 351 U.S. at 113, 76 S.Ct., at 684, between the union activities of employees
and nonemployees. In cases involving employee activities, we noted with approval, the
Board 'balanced the conflicting interests of employees to receive information on self-
organization on the company's property from fellow employees during nonworking time,
with the employer's right to control the use of his property.' Id. at 109-110, 76 S.Ct., at
682-683. [Emphasis in original]
This quoted dictum - to the extent it refers to employee activities - on page 537 of Lechmere,
which decision is discussed more fully below, does not, contrary to the assertion in ITT, "make…
clear that, even as to on-site employees, the Board must balance the conflicting interests of
employees to receive information on self-organization on the company's property from fellow
employees during nonwork time with the employer's right to control the use of his property."
(emphasis added) This language in Lechmere refers to what the Board itself did decades ago in
LeTourneau Company of Georgia, 54 NLRB 1253 (1944), long before Hudgens and Eastex. The
Board's decision in LeTourneau Company of Georgia was reached over a decade before
Babcock. More importantly, the Board's decision in LeTourneau Company of Georgia was
reached over 1 year before the Court decided Republic Aviation. In Republic Aviation the Court
considered both of the situations which occurred in LeTourneau and Republic but the Court in
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
31
Republic Aviation did not specifically approve the approach taken by the Board in LeTourneau
Company of Georgia, namely to factor in the employer's property rights when dealing with on-
site employees of the employer already rightfully on the property. In Babcock, at 111, the Court
acknowledged "[t]he Board has applied its reasoning in the LeTourneau case without distinction
to situations where the distribution was made, as here [in Babcock], by nonemployees." After
Republic Aviation, Hudgens, and Eastex, it was clear, as pointed out by the court in NYNY at
587-588, that "when the organizational activity [is] carried on by employees already rightfully on
the employer's property, … the employer's management interests rather than his property
interests [are] there involved. Hudgens…." While at page 537 the majority in Lechmere indicates
"we noted [obviously past tense] with approval," and cites pages 109-110 of the decision of the
Court in Babcock - which was dealing with a nonemployee situation - for the quote following
this language, it does not appear that the Court specifically indicated on pages 109 and 110 of its
decision in Babcock that it approved the Board's approach in LeTourneau Company of Georgia,
namely not to differentiate between situations which involved employees versus non employees
and utilize a balancing test involving the employer's property rights even when the property
owner's on-site employees are already rightfully on the property. I do not believe that "we noted
with approval" at 537 in Lechmere equates with "must" in ITT or the specific overruling of
Hudgens and Eastex to the extent they refer to what is to be consided in a balancing exercise
when the case involves on-site employees of the landowner already rightfully on the property.
Indeed, the same court which decided ITT (Chief Judge Edwards, and Circuit Judges Williams
and Sentelle, with the opinion filed by Chief Judge Edwards) subsequently decided NYNY
(Circuit Judges Edwards, Randolph, and Tatel, with Judge Randolph designated as the author of
the opinion) and in its decision in NYNY, as noted above, the court indicated at 587-588 as
follows:
Highlighting the difference between the rights of employees and nonemployees, the
Court explained in a later case that a 'wholly different balance [is] struck when the
organizational activity [is] carried on by employees already rightfully on the employer's
property, since the employer's management interests rather than his property interests
[are] there involved.' Hudgens v. NLRB, 424 U.S.507, 521-22 n. 10 ….
In my opinion, this case, which involves McGonigle soliciting only his co-workers
(during non-work time in a non-work area) and not the employees of Nova, which involves
McGonigle punching a time clock in one of the buildings on the Nova campus and working on a
continuous, regular, exclusive, long-term (years) basis on the Nova campus pursuant to an
employment relationship doing work which could be done by a Nova employee, which involves
a situation where Nova contracted to provide the following:
13. EQUIPMENT, MATERIALS, AND SUPPLIES
A. NSU shall furnish all supplies necessary to completely and effectively perform all
work defined in this Contract.
B. A list of all items required to be used by Contractor shall be submitted to the
Administrator prior to the use of the item in the performance of the work…. [,]
which involves work being performed by McGonigle, as here pertinent, on the basis of a daily
work order from Nova, and which involves only Section 8(a)(1) of the Act, can and should be
decided under Fabric Services, supra. Relying on Fabric Services, I conclude that Nova violated
the Act as alleged in paragraph 7 of the complaint.
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
32
I believe that if it were necessary to go beyond Fabric Services, the case should be
decided under Republic Aviation Corp. In my opinion, both the Board and the Eleventh Circuit
decisions in Southern reached the correct result. The case at hand, Nova, presents even more
compelling reasons for concluding that Nova violated the Act in denying McGonigle his Section
7 right to handbill his co-workers. In Southern the complaint did not allege that Coke unlawfully
promulgated or maintained its solicitation or distribution policy. Here, Nova's solicitation policy
has been found to be unlawful. In Southern, with respect to property rights (which, as noted
above, should not be a consideration if the case is decided under Republic), the involved property
was, for the most part, surrounded by a fence, the subcontractor's employees had badges (unlike
the Coke employees' badges) which identified them as subcontractor's employees who work on
Coke's premises, and the subcontractor's employees had to enter the fenced-in Coke complex
through a specific gate which was manned by a guard who checked the badges of the
subcontractor's employees. All persons entering the complex must show a badge or otherwise
obtain permission to enter. The Nova campus is open to the public. There are no pedestrian
barriers and the six vehicle access points to Nova's main campus are not secured or controlled.
I do not believe that Lechmere, supra, changes the outcome reached by the Board and the
Eleventh Circuit in Southern. In Lechmere the court was faced with nonemployee union
organizers (technically outsiders, strangers to the property) entering Lechmere's shopping plaza
parking lot and placing handbills on the windshields of cars parked in a corner of the lot used
mostly by Lechmere's associates (employees). Lechmere's no solicitation policy reads: "[n]on-
associates are prohibited from soliciting and distributing literature at all times anywhere on
Company property, including parking lots. Non-associates have no right of access to the non-
working areas and only to the public and selling areas of the store in connection with its public
use." The handbillers left when asked to by Lechmere's manager. This exercise was repeated on
several subsequent occasions. Justice Thomas wrote the majority opinion. On the issue before it,
the court held at 538 that "[i]t is only where … [reasonable access to employees outside an
employer's property] is infeasible that it becomes necessary and proper to take the
accommodation inquiry to a second level, balancing the employees' and employers' rights as
described in Hudgens dictum." (emphasis in original and citations omitted)
In 1971 in Fabric Services the Board adopted the following, which is based on language
utilized by Justice Frankfurter, who delivered the opinion of the majority of the court in Phelps
Dodge Corp. v. N.L.R.B., 313 U.S. 177, 191-192 (1941)20:
[Language could not be found] either in the declared policy of the Act or in any
delineating provision of it for construing Section 8(a)(1) as safeguarding employees in

20 At 191-192 in Phelps, Justice Frankfurter wrote: " ' [t]he term 'employee', the section
reads,'shall include any employee, and shall not be limited to the employees of a particular
employer, unless the Act (chapter) explicitly states otherwise ….' He went on to indicate: "[t]he
broad definition of 'employee', 'unless the Act (chapter) explicitly states otherwise', as well as
the definition of 'labor dispute' in § 2(9) expressed the conviction of Congress 'that disputes may
arise regardless of whether disputants stand in the proximate relation of employer and
employee, and that self-organization of employees may extend beyond a single plant or
employer'. H.R. Rep. No. 1147, 74th Cong., 1st Sess., p.9; see also, S. Rep. No. 573, 74th
Cong., 1st Sess., pp 6, 7.
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
33
the exercise of the Section 7 rights only from infringements at the hands of their own
employer. To the contrary, the specific language of the Act clearly manifests a legislative
purpose to extend the statutory protection of Section 8(a)(1) beyond the immediate
employer-employee relationship. Thus Section 8(a)(1) makes it 'an unfair labor practice
for an employer - to interfere with, restrain, or coerce employees in the exercise of rights
guaranteed in Section 7.' And Section 2(3) declares, 'The term "employee" shall include
any employee, and shall not be limited to the employees of a particular employer, unless
the Act explicitly states otherwise ….' Moreover, Section 2(9), which defines 'labor
dispute' as including 'any controversy … regardless of whether the disputants stand in the
proximate relationship of employer and employee' further discloses a statutory aim to
give the Act's various prohibitions a broad rather than a narrow reading, except, of
course, where the prohibition is limited in its internal context or is specifically restricted
by other express language of the Act. See Phelps … [at 191-] 192. [Emphasis in original
with dictum in note 11 of the underlying decision in Fabric Services distinguished above]
Also, the court in NLRB v. Gluek Brewing Co. 144 F.2d 847, 855, n.7 (8th Cir. 1944)
indicated as follows:
… disputes … might involve 'employees (who) are at times brought into an economic
relationship with employers who are not their employers.' In this light, the broad
language of the Act's definitions which in terms reject conventional limitations on such
conceptions as 'employee,' 'employer,' and 'labor dispute,' leaves no doubt that its
applicability is to be determined broadly, in doubtful situations, by underlying economic
facts rather than technically and exclusively by previously established legal
classifications. …. [Citations omitted]
Hence 'technical concepts pertinent to an employer's legal responsibility to third
persons for the acts of his servants' have been rejected in various applications of this Act
both here … [Citations omitted] and in other federal courts …. [Citations omitted] There
is no good reason for invoking them to restrict the scope of the term 'employee' sought to
be done in this case. That term, like other provisions, must be understood with reference
to the purpose of the Act and the facts involved in the economic relationship. 'Where all
the conditions of the relation require protection, protection ought to be given.' NLRB v.
Hearst Publications, 322 U.S. 111, (1944), 64 S. Ct. 851.
The Court at 124-131 in Hearst Publications concluded as follows:
The word [employee] 'is not treated by Congress as a word of art having a definite
meaning ….' Rather 'it takes color from its surroundings … (in) the statute where it
appears,' United States v. American Trucking Associations, Inc., 310 U.S. 534, 545, 60
S.Ct. 1059, 1065, 84 L.Ed. 1345, and derives meaning from the context of that statute,
which 'must be read in the light of the mischief to be corrected and the end to be attained.'
[Citations omitted]
….
Hence the avowed and interrelated purposes of the Act are to encourage collective
bargaining and to remedy the individual worker's inequality of bargaining power by
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
34
'protecting the exercise … of full freedom of association, self-organization, and
designation of representatives of their own choosing, for the purpose of negotiating the
terms and conditions of their employment or other mutual aid or protection.' 49 Stat. 449,
450, 29 U.S.C.A. § 151.
….
To eliminate the causes of labor disputes and industrial strife, Congress thought it
necessary to create a balance of forces in certain types of economic relationships. These
do not embrace simply employment associations in which controversies could be limited
to disputes over proper 'physical conduct in the performance of the service.' 27 On the
contrary, Congress recognized those economic relationships cannot be fitted neatly into
the containers designated 'employee' and 'employer' which an earlier law had shaped for
different purposes. Its Reports on the bill disclose clearly the understanding that
'employers and employees not in proximate relationship may be drawn into common
controversies by economic forces,' 28 and that the very disputes sought to be avoided
might involve 'employees (who) are at times brought into an economic relationship with
employers who are not their employers.' 29 In this light, the broad language of the Act's
definitions, which in terms reject conventional limitations on such conceptions as
'employee,' 'employer,' and 'labor dispute', 30 leaves no doubt that its applicability is to be
determined broadly, in doubtful situations, by underlying economic facts rather than
technically and exclusively by previously established legal classification. [Citation
omitted]
….
Where all the conditions of the relation require protection, protection ought to be
given.33
It is not necessary in this case to make a completely definitive limitation around
the term 'employee.' That task has been assigned primarily to the agency created by
Congress to administer the Act. Determination of 'where all the conditions of the relation
require protection' involves inquires for the Board charged with this duty. Everyday
experience in the administration of the statute gives it familiarity with the circumstances
and backgrounds of employment relationships in various industries, with the abilities and
needs of the workers for self organization and collective action, and with the adaptability
of collective bargaining for the peaceful settlement of their disputes with their employers.
The experience thus acquired must be brought frequently to bear on the question who is
an employee under the Act. Resolving that question, like determining whether unfair
labor practices have been committed, 'belongs to the usual administrative routine' of the
Board. [Footnote and citations omitted]
….
… where the question is one of specific application of a broad statutory term in a
proceeding in which the agency administering the statute must determine it initially, the
reviewing court's function is limited.
….
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
35
… the Board's determination that specified persons are 'employees' under this Act is
accepted if it has 'warrant in the record' and a reasonable basis in law.
….
_____________
27 Control of 'physical conduct in the performance of the service' is the traditional test of
the 'employee relationship' at common law. Cf., e.g., Restatement of the Law of Agency
§220(1).
28 Sen. Rep. No. 573, 74th Cong., 1st Sess.7.
29 Sen. Rep. No. 573, 74th Cong., !st Sess. 6.
30 Cf. Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 61 S.Ct.
845, 85 L.Ed. 1271, 133 A.L.R. 1217; and compare Milk Wagon Drivers Union Local
No. 753 v. Lake Valley Farm Products Co., 311 U.S. 91, 61 S.Ct. 122, 85 L.Ed. 63, with
Sen. Rep. No. 573, 74th Cong., 1st Sess.7.
….
33 Lehigh Valley Coal Co. v. Yensavage, 2 Cir., 218 F. 547, 552.
Here, McGonigle was already rightfully on Nova's property reporting to work pursuant to
the employment relationship. McGonigle was not a stranger to Nova's property. McGonigle was
not an outsider to Nova's property. Nova did not use a trespass approach in any attempt to
convert McGonigle's status. As noted above, the right of an on-site employee of the landowner to
handbill on the property of the landowner can lawfully be limited; it is not an unlimited absolute
right. In that light, I agree with the Eleventh Circuit's language at 704 in Southern that "… the
conduct of distributing union literature [to subcontractor co-workers does not] transform the
status of a subcontract employee … [in the circumstances of McGonigle found herein] from that
of a business invitee to that of a mere trespasser." Moreover, actuality trumps the theoretical.
Nova did not actually "trespass" McGonigle as it did with outsiders who came onto the campus
to pass out leaflets. Consequently, even if one attempted to take a theoretical trespass approach
with the facts here, the waiver of that right on the part of Nova with respect to McGonigle would
have to be overcome. Nova did not attempt to show that its management interests would be
prejudiced in any way by the Section 7 right involved here. Nova did not demonstrate that a
restriction is necessary to maintain production or discipline. While property interests should not
be a factor under a Republic Aviation analysis, as noted, Nova's campus is open to the public and
Nova has not shown how McGonigle, who was rightfully on the property handbilling only his
co-workers in a non-work area during non-work time, infringed in any meaningful way on
Nova's property right. Again, the correct balancing test here is management interests not property
rights.
Certain portions of the decision of the Eleventh Circuit in Southern should be repeated
here:
The right of employees 'to self organize and bargain collectively established by § 7 …
necessarily encompasses the right effectively to communicate with one another regarding
self organization at the jobsite.' Beth Israel Hospital v. NLRB, 437 U.S. 483, 491, 98
S.Ct. 2463, 2469, 57 L.Ed 2d 370 (1978) (emphasis added) (footnote omitted). And the
workplace 'is a particularly appropriate place for the distribution of § 7 material, because
it "is the one place where [employees] clearly share common interests and where they
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
36
traditionally seek to persuade fellow workers in matters affecting their union
organizational life …." ' Eastex, 98 S. Ct. at 2517 (quoting Gale Products, 142 NLRB
1246, 1249 (1963). [Emphasis in original]
It is very meaningful that the involved Section 7 right has been denied for years (and
would have continued to be denied if Nova had its way and it continued to use the approach it is
taking) to individuals who, in effect, substitute for Nova's employees; who do the work that
Nova employees could be doing. As noted above, I have concluded that Nova's no solicitation
rule is unlawful. Whether or not Nova takes the approach it does so as to avoid having to hire
and pay certain "benefits [such as] health care [and] living wages" (General Counsel's Exhibit
29)21, Nova should not be allowed, in violation of Section 8(a)(1) of the Act, to unlawfully reap
the benefit of being able to deny the Section 7 right to handbill only his or her contractor co-
workers by employees like McGonigle who punch a time clock in one of Nova's buildings and
work on Nova's campus on a long-term (years), continuous, exclusive, regular basis under a
contract where Nova furnished "all supplies necessary to completely and effectively perform all
work defined in this Contract," and where the work is performed on the basis of a daily work
order from Nova. In my opinion, even if the Fabric Services approach is not taken, it has been
demonstrated - especially considering the narrow and compelling facts of this case - that
Respondent violated the Act as alleged in paragraph 7 of the complaint.
Paragraph 8 of the complaint alleges that on or about August 22, 2006 Respondent, by
Ian Vincent and Marie Lemme, at the public safety building at its Fort Lauderdale campus, told
employees of UNICCO that they could not distribute literature at any time on Respondent's
property.
Counsel for General Counsel contends on brief that Respondent further violated the Act
when Lemme told McGonigle that she had spoken with Santulli and McGonigle could not leaflet
on campus, when Vincent told McGonigle that he had spoken with Bias and McGonigle was not
allowed to pass out a leaflet on campus, and when Lemme and Vincent told McGonigle that it
did not matter that he was doing it on his own time since Nova was a private university and he
was not allowed to leaflet.
Three admitted supervisors and agents of Respondent, Bias, Vincent, and Lemme, were
not called by Respondent to testify at the trial herein. And while Santulli testified, he did not
specifically deny the testimony of McGonigle that on August 22, 2006 Lemme, the Acting

21 It is noted that the following appears on page 2 of the contract between Nova and
UNICCO, General Counsel's Exhibit 17:
5. CONTRACTOR'S COMPENSATION FOR ROUTINE WORK
A. For complete performance of the routine work, in compliance with the
Specifications, NSU shall pay to Contractor monthly, after approval of the invoice, an
amount equal to the approved direct labor costs paid by Contractor to Contractor's
employees engaged in work at NSU plus payment for payroll taxes/insurance, fringe
benefits, other approved direct costs, overhead, and profit as derived from Contractor's
Bid Proposal …. [Emphasis added]
While the contract does speak to "fringe benefits," they are not specified in the contract. It
appears that under the terms of this contract, Nova exercised a degree of control of what the
UNICCO employees working on the Nova campus were paid.
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
37
Director of Facilities Management, told him that "she had spoken to Mr. John Santulli and that I
was not supposed to be leafleting on the campus." (transcript page 112) McGonigle impressed
me as being a credible witness. McGonigle's unchallenged testimony regarding what Vincent,
Bias (conveyed by Vincent), Lemme, and Santulli (conveyed by Lemme) said on August 22,
2006 is credited. Vincent, Bias, Lemme, and Santulli told McGonigle that he was not allowed to
leaflet on campus, and Vincent and Lemme told McGonigle that it did not matter that he was
doing it on his own time since Nova was a private university; he was not allowed to leaflet. As
concluded above, in my opinion McGonigle had the Section 7 right to handbill his co-workers in
a non-work area during non-work time on Nova's campus, and Respondent, through Neely,
violated the Act when it precluded this activity. Respondent also violated the Act as alleged in
paragraph 8 of the complaint when the above-named four members of Nova's management
affirmed Nova's position to McGonigle with respect to what McGonigle did.
Paragraphs 9 and 10 of the complaint collectively allege that on or about August 24, 2006
Respondent, by Tony Todaro, at the physical plant at its Ft, Lauderdale campus, told employees
of UNICCO that they could not engage in solicitation at any campus or facility of Respondent
without the permission of Respondent, and Todaro instructed UNICCO to issue two disciplinary
warnings to UNICCO employee Steve McGonigle pursuant to its no-solicitation policy.
Counsel for General Counsel contends on brief that Respondent violated the Act when
Todaro read the warning to McGonigle and stated Nova's no-solicitation policy, and by
instructing Sado and Vladoiu to issue the warnings to McGonigle; that McGonigle could
reasonably believe that Todaro was acting as Respondent's agent when he gave McGonigle the
warnings and read Respondent's solicitation policy to McGonigle; that the warning regarding
solicitation clearly states that it was issued because McGonigle violated both Respondent's and
UNICCO's solicitation policies; and that the other warning issued to McGonigle, General
Counsel's Exhibit 31, for leaving his work area is intertwined with Respondent's unlawful no-
solicitation rule and would not have been issued but for said unlawful rule.
Respondent argues on brief that Nova is not liable for any actions taken by Todaro prior
to February 19, 2007 because he was not employed by Nova, he did not act as an agent of Nova,
and Todaro did not have apparent authority; that generally an independent contractor will not
subject an employer to liability for unauthorized acts, Tarheel Coals, Inc., 253 NLRB 563, 566
(1980); that any role Todaro had in coordinating the efforts of UNICCO did not give him
authority to act on behalf of Nova; that the burden of proving any type of agency relationship is
on the party asserting the relationship, Dick Gore Real Estate, Inc., 312 NLRB 999 (1993); that
an employer's effort to monitor, evaluate, and improve the result of a contractor's performance
does not mean the employer has control over the manner and means of performance, Ready Mix,
337 NLRB 1189 (2002); that the standard for establishing agency for purposes of Section 2(13)
of the Act is whether the individual had been placed in such a position by management that
employees could reasonably believe that the individual spoke for management, Zimmerman
Plumbing Co. 325 NLRB 106 (1997); that to demonstrate apparent authority, the General
Counsel needs to show 'a manifestation by the principal to a third party that supplies a reasonable
basis for the latter to believe that the principal has authorized the alleged agent to do the acts in
question,' Dick Gore Real Estate, Inc., supra; that no one, including McGonigle, testified that
they believed Todaro was authorized to speak for Nova; that determining whether a contractor is
an agent is not the same as determining whether an employee acted as an agent in making
statements to other employees, compare D&F Industries, 339 NLRB 618, 619 (2003); that the
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
38
evidence that Todaro retained the same phone number, e-mail address, and desk when he was
hired by Nova, and when he worked for UNICCO he was listed on Nova's website is insufficient
to establish agency by itself; that even if agency is assigned to Todaro, his actions did not violate
the Act; that McGonigle did not testify that Todaro was the one who was issuing him the
warnings and, therefore, any allegation that Todaro issued discipline himself should be
dismissed22; that "Nova was not aware of the discipline issued to McGonigle by UNICCO prior
to the hearing …." (emphasis added) and "[h]ad Nova been given knowledge of the verbal
warning, it would have been able to clarify the circumstances on the record by having a
UNICCO employee testify to it" (Respondent's brief, page 17); that since Counsel for General
Counsel did not offer any evidence that Todaro instructed UNICCO to "order" (Respondent's
brief, page 17) discipline, this allegation of the complaint should be dismissed; that even if the
verbal warnings issued to McGonigle were improper, they are not sufficient to rise to the level of
a violation of the Act by Nova; that Nova does not have the authority to remove any warnings
from McGonigle's UNICCO file; that McGonigle admitted that he clocked in and subsequently
on work time complained to Public Safety at the Security Operations Center; and that the
solicitation allegation should be viewed as de minimis and should not require any corrective
action, Dieckbrader Express, Inc., 168 NLRB 867 (1967).
Respondent's argument that "Nova was not aware of the discipline issued to McGonigle
prior to the hearing …." and "[h]ad Nova been given knowledge of the verbal warning, it would
have been able to clarify the circumstances on the record by having a UNICCO employee testify
to it" (Respondent's brief, page 17) is a red herring. While the first complaint in this proceeding,
which was issued on January 26, 2007, did not refer to McGonigle's disciplines, the August 28,
2008 consolidated complaint, General Counsel's Exhibit 1(cc) alleges in part as follows:
10
On a date in or about August 2006, a more precise date being unknown to the
undersigned, Respondent, by Tony Todaro, instructed UNICCO to issue two disciplinary
warnings to UNICCO employee Steve McGonigle pursuant to its no-solicitation policy.
In its answer dated September 10, 2008, General Counsel's Exhibit 1(ee), Nova denied the
allegations of paragraph 10 of the August 28, 2008 consolidated complaint. Additionally,
Counsel for General Counsel, in her October 21, 2008 Opposition to Respondent's Motion for
More Definite Statement of the Consolidated Complaint and Memorandum of Law in Support
Thereof, General Counsel's Exhibit 1(gg), gave the following information: " [f]urther, Counsel
for General Counsel hereby advises Respondent that based on information available to the
General Counsel, it appears that the instructions were given to UNICCO supervisors Jack Sado
and Gene Vlado[i]u." Respondent's motion was subsequently denied, General Counsel's Exhibit
1(hh). Nova had sufficient information about the disciplinary warnings to McGonigle and it had
the names of the three UNICCO supervisors/managers involved, Todaro, Sado, and Vladoiu,
well before the November 18, 2008 trial herein. To argue otherwise is disingenuous at best. All

22 While Todaro did not sign the disciplines, McGonigle testified that on August 24, 2006
Todaro was the one who (1) gave him the disciplines, (2) read the policies of Nova and
UNICCO to him from the handbooks, (3) gave him a copy of the policies, and (4) told him that
he could not distribute anything on Nova property because it was private property. McGonigle's
unrefuted testimony is credited.
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
39
three of these individuals were hired by Nova in February 2007. All three of these individuals
should have been available to Nova to call as witnesses in the trial herein. Nova called just one,
Todaro, and with respect to the allegations in paragraphs 9 and 10 of the complaint, Todaro
pleaded ignorance. Notwithstanding this, Nova still did not call Sado or Vladoiu.
As noted, the unrefuted testimony of McGonigle with respect to what occurred and what
was said on August 24, 2006 is credited. Todaro lied under oath. In my opinion a reasonable
person would not forget, in a span of 27 months, disciplining an employee based on Nova's
policy, which was contrary to what at least Todaro and Vladiou were told by UNICCO's Vice
President of Labor Relations was lawful as far as UNICCO was concerned. Todaro was doing
the bidding of Nova with respect to this discipline, and it is not something a reasonable
individual would easily forget. Todaro admitted that he was first made aware of Nova's
solicitation rule over this incident. So he remembered that but he falsely claims he does not
remember the conversation he had with McGonigle about this discipline. Todaro testified that he
remembered that no one from Nova told him to give McGonigle the discipline, and Todaro
testified that he remembered that he did not tell Sado or Vladoiu to give the August 24, 2006
disciplines to McGonigle (if he had done that, he may have recalled that "[y]es I probably would
have recalled it).23 But when asked if he remembered the discipline to McGonigle, Todaro
answered "Honestly, I don't remember this (transcript page 190 with emphasis added) and "I
guess I don't remember those [the two disciplines to McGonigle]…." (transcript page 202) In my
opinion, someone decided that the better approach in the circumstances existing here was for
Todaro to plead ignorance. The fact that Sado and Valdoiu were not called to fill the void tells
me that this was a tactical approach not orchestrated by Todaro alone. The false claim advanced
by Nova that it did not know about the role of Sado and Vladoiu in this discipline before the trial
is nothing more than a smoke screen utilized in an attempt to explain why Nova did not call Sado
and Vladoiu when Todaro pleaded ignorance.
As indicated above, in the language - modified in the indented quote below solely to
reflect the names of those involved herein - of Fabric Services, at 542,
To exonerate … [Nova] from statutory responsibility in these circumstances simply
because … [McGonigle] was not its employee, would, I believe, subvert the clear policy
and intent of the Act. Having 'knowingly participate[d] in the effectuation of an unfair
labor practice, … [Nova] place[d] itself within the orbit of the Board's corrective
jurisdiction.' N.L.R.B. v. Gluck Brewing Co., 144 F.2d 847, 855 (C.A. 8 ) [Bracketed
material other than the names of those involved herein appears in original]
Nova does not deny that on August 22, 2006 five of its representatives told McGonigle that he
could not handbill his contract co-workers while they all were not working and they were in a
non-work area on Nova's campus. As found above, this itself was a violation of the Act. Nova's
Incident Report, General Counsel's Exhibit 18, which is dated "8/22/2006," indicates that Todaro
and Sado were notified of the McGonigle August 22, 2006 handbilling incident.

23 Since Todaro gave the disciplines to McGonigle on August 24, 2006, there may be some
truth in Todaro's assertion that he did not tell Sado and Valdoiu to give the disciplines to
McGonigle, although he had Sado and Vladoiu sign the disciplines and sit in on the meeting
when he gave McGonigle the disciplines.
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
40
While the contract between UNICCO and Nova did not give Nova the authority to
discipline UNICCO's employees who work on Nova's campus, it is noted that the discipline
given to McGonigle for handbilling without permission, General Counsel's Exhibit 30, really
only speaks to Nova's solicitation rule in that even though UNICCO's rule is referred to in the
discipline, Todaro and Vladoiu were told even before July 28, 2006 by UNICCO's Vice
President of Labor Relations that UNICCO management was not allowed to stop anybody from
passing out leaflets as long as they were on their lunch hour or break times, and UNICCO
employees were allowed to pass out leaflets during lunch and break times. The citing of the
UNICCO rule in the solicitation discipline was false and misleading. It was misdirection.
UNICCO apparently did not want it to be obvious that McGonigle was being disciplined just for
violating Nova's unlawful no solicitation rule. If the relationship was strictly contractual, Nova
should have sought a remedy under the terms of the contract. Here, Nova went beyond that in
that McGonigle was disciplined after Nova notified Todaro and Sado of its unlawful solicitation
rule and of McGonigle's conduct.
With respect to the discipline for leaving his work area without permission, General
Counsel's Exhibit 31, this was not an issue which directly involved Nova. This issue was
between McGonigle and UNICCO. While General Counsel's Exhibit 30 refers to Nova's
solicitation rule, General Counsel's Exhibit 31 only refers to UNICCO. Does the fact that Nova,
through Neely, engaged in unlawful conduct on August 22, 2006, with respect to McGonigle,
excuse McGonigle's subsequent conduct? In my opinion, while it explains why McGonigle did
what he did, it does not excuse it. McGonigle could have waited until he had a break or he could
have asked his supervisor for permission to go to Public Safety in building 11. It is noted that the
flyer refers to a rally that was being held at 4:30 p.m. on August 22, 2006. In other words,
McGonigle was handing out leaflets for a rally being held later that same day. This may have
engendered a sense of urgency on the part of McGonigle. Nonetheless, it appears that McGonigle
could have attempted to give out this leaflet earlier than Tuesday August 22, 2006. I do not
believe that Nova violated the Act regarding the discipline to McGonigle for leaving his assigned
work area for other than work related issues, without permission from his supervisor.
Respondent violated that Act as alleged in paragraphs 9 and 10 of the complaint, except with
respect to McGonigle's discipline for leaving his assigned work area for other than work related
issues, without permission from his supervisor.
Paragraph 11 of the complaint alleges that on or about February 19, 2007, on or near
University Avenue in Fort Lauderdale, Respondent, by Tony Todaro, interrogated employees
concerning their union activities and implicitly threatened that employees would not be hired
because of their union activities.
Counsel for General Counsel contends on brief that with respect to Todaro's conversation
with Sanchez on February 19, 2007, the Board holds that an interrogation is unlawful if, under
the totality of the circumstances, it reasonably tends to interfere with, restrain, or coerce
employees in the exercise of their Section 7 rights, Mathews Readymix, Inc., 324 NLRB 1005,
1007 (1997) enfd., in part 165 F.3d 74 (D.C. Cir. 1999); that the Board considers whether the
interrogated employee was an open or active union supporter, whether proper assurances were
given concerning the questioning, the background and timing of the interrogation, the nature of
the information sought, the identity of the questioner, and the place and method of interrogation,
Rossmore House, 269 NLRB 1176, 1177-1178 (1984), enfd, 760 F.2d 1006 (9th Cir. 1985); that
Todaro was Sanchez's highest level supervisor before the Sanchez layoff; that given that
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
41
(a)Todaro continued to be a high-level supervisor after being hired by Respondent, (b) "Sanchez
was seeking employment by Respondent when the interrogation occurred" (page 20 of Counsel
for General Counsel's brief), and (c) Todaro asked Sanchez if he was a union supporter and
implied that Sanchez should go on the picket line in lieu of "obtaining employment by
Respondent" (Ibid), the totality of circumstances reflect that Todaro's interrogation was coercive;
and that even assuming arguendo that Todaro knew that Sanchez had participated in a picket
line, an employer cannot question an open union supporter when done in the context of unlawful
threats, reprisals or conduct that it otherwise coercive, Diamond Electric Mfg. Corp., 346 NLRB
857, 891 (2006) (employer violated the Act by interrogating open union supporter at the same
time employer threatened employee with plant closure).
Respondent argues on brief that where the inquiry is 'innocuous' or part of a normal
response to a conversation initiated by an employee, it does not rise to the level of coercion; that
as the Board stated in Rossmore House Hotel, at 1178, n. 20 "[t]o hold that any instance of casual
questioning concerning union sympathies violates the Act ignores the realities of the workplace";
that General Counsel did not clearly establish that Todaro was employed by Nova at the time of
his alleged conversation with Sanchez since (a) although Sanchez claimed that Todaro worked
for Nova at the time of their conversation, Sanchez claimed that the conversation occurred the
day after he was laid off, (b) Sanchez testified that he was laid off on January 17, 2007or
somewhere around that time, and (c) the record is clear that Todaro was not hired by Nova until
February 18, 2007; that Todaro's question to Sanchez was not illegal; that Sanchez's support for
the union was open in that he walked the picket line with a broom in his hand; that Todaro's
question would not have been posed for the purpose of ascertaining Sanchez's union sentiments;
that Todaro was simply suggesting how Sanchez could make money while he was looking for
work; that Todaro's limited and casual remarks could not reasonably be construed as tending to
restrain or interfere with the exercise of Sanchez's rights; and that Todaro's comments were
isolated and inconsequential.
With respect to Respondent's argument that General Counsel did not clearly establish that
Todaro was employed by Nova at the time of his alleged conversation with Sanchez, it is noted
that Sanchez testified that he was not sure of the date of his layoff, Sanchez testified
unequivocally that Todaro was working for Nova when he had the involved conversation with
him, and Sanchez gave the following testimony on cross-examination by one of Respondent's
attorneys:
Q. All right. And isn't it true that Nova -- I mean excuse me. Isn't it true that UNICCO
supervisors attempted to help you get hired by Massey?
A. I turn the application to Gene.
Q. Who gave you the application?
A. Jack Sado.
Q. And that was in February before you were laid off?
A. Yes.
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
42
Q. Shortly before you were laid off?
A. Yes, like two weeks before. [Transcript page 95 with emphasis added]
On cross-examination Respondent's attorney understood that Sanchez was laid off in February
2007. Again, Respondent is disingenuous.
Todaro is not a credible witness. He does not deny the conversation involved here. Rather
he equivocally testified that he did not recall such conversation. Sanchez impressed me as being
a credible witness. His testimony about his conversation with Todaro on February 19, 2007 is
credited.
Sanchez was an open union supporter in that he was on the picket line carrying a broom
before UNICCO lost its contract at Nova, and a lot of people told him that they saw him on the
picket line. During the involved conversation, which appears to have been initiated by Sanchez
after Todaro waved Sanchez on to follow him, Todaro was not trying to ascertain whether
Sanchez supported the union. Rather, Todaro was driving the point home that he knew that
Sanchez was with the union. Then sarcastically, Todaro asked him why he did not go on the line
and "[t]hey [the union] might pay you with your friend Steve [McGonigle]." When Sanchez then
told Todaro that he needed work, Todaro told Sanchez to call him back in three months. One of
the new contractors, Massey, had taken over the maintenance work, which is the work Sanchez
did with UNICCO. Todaro did not tell Sanchez that he should be dealing with Massey. Rather,
Todaro told Sanchez that he, Todaro, would see what was going on. This would mean that, if
Todaro was sincere, he was willing to look into work for Sanchez. Whether this would mean
speaking to Massey on Sanchez's behalf or seeing if Nova had something else for Sanchez was
not made a matter of record. But Todaro is not a credible witness. When he spoke with Sanchez,
Todaro was not sincere. While Sanchez was looking for employment Todaro linked his
knowledge of Sanchez's union activity with the possibility of Sanchez being hired to work on
Nova's campus. Todaro's questioning Sanchez ostensibly to confirm what Todaro undoubtedly
already knew was coercive in that Todaro was, in effect, telling Sanchez you made your bed now
go sleep in it; you supported the union now go and see if the union will pay you to go on the line.
The "call me back in three months" was nothing more than a dismissal of a man who needed
immediate employment. Todaro was telling Sanchez that he would not be hired anytime soon, if
ever, at Nova in view of his union activities. This amounted to an implicit threat that employees
would not be hired because of their union activities. Questions involving an individual's union
support in the context of that individual seeking employment are inherently coercive and
therefore interfere with Section 7 rights. Respondent violated the Act as alleged in paragraph 11
of the complaint. Compare Mathews Readymix, Inc., supra.
Paragraph 12 of the complaint alleges that on or about February 19, 2007, at the Fort
Lauderdale campus, Respondent, by Thai Nguyen, threatened that employees would not be hired
because of their union activities.
Counsel for General Counsel contends on brief that when taken as a whole, Bazile's
mistake regarding who asked Nguyen the question was a result of a misuse of a pronoun when
Bazile testified in English, rather than any indication that he testified inaccurately or did not
testify truthfully; that when confronted with this discrepancy on cross-examination, Bazile,
without hesitation, admitted that it was Fabre, rather than him, who asked Nguyen about the new
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
43
employees; that while Nguyen testified that during the conversation he told two of his
employees, Bazile and Fabre, that he would recommend them for jobs, at the time of the
conversation described by Bazile, both he and Fabre had already been hired by Green Source;
and that Nguyen admitted that he saw new employees working in the grounds department when
Green Source took over the landscaping operation, and it is more credible that Bazile and his co-
workers were asking about the new hires, Bay Harbor Electric, Inc., 348 NLRB 963 (2006).
Respondent argues on brief that even if Bazile's testimony is credited, the isolated
discussion does not rise to the level of an unlawful interrogation or threat; that the ultimate
question is whether the interrogation reasonably tends to restrain, coerce, or interfere with rights
guaranteed by the Act, in light of surrounding circumstances; that Bazile's testimony is a
fabrication; that he first testified that he asked Nguyen the question; that Nguyen remembered
the conversation but adamantly denied Bazile's recollection that he commented on the union
involvement of the workers who were not hired; that Nguyen did in fact recommend to the new
contractor that his entire crew be hired; that although Bazile gave two different recollections of
the conversation with Nguyen, at best it indicates that Nguyen believed the union was
responsible at some level for why certain employees did not have jobs; that Nguyen did not
imply that his former crew members would lose their jobs with Green Source if they became
involved with the Union; that Bazile did not testify that Nguyen's comments led him to fear that
his union activities would lead to his termination; and that considering the totality of the
circumstances, Nguyen's comments could not be construed as coercing or interfering with the
rights of "his employees." (Respondent's brief, page 20)
On the one hand, Bazile first testified that he asked Nguyen the question when he and
three other employees met with Nguyen in the Eddie Griffin cafeteria and asked him about the
new employees they saw when they came to work for Green Source on February 19, 2007. Then
Bazile conceded on cross-examination that Fabre was the one who asked the question. On the
other hand, Nguyen testified that he was hired by Nova starting on February 18, 2007 and during
the first week he was hired by Nova he had a conversation with just Bazile and Fabre in the
Eddie Griffin shed during which he only remembered telling them that he would recommend
them to the company (Green Source) that was going to be doing the grounds work. So, with
these two versions, the total number of people involved is different, the location of the
conversation is different, and what was allegedly said is different. First, it must be determined
what was said. Then it must be determined whether what was said violated the Act. With respect
to the former, of the four employees allegedly present during this conversation only Bazile was
subpoenaed to testify about the conversation. Nguyen's testimony appears to be contradictory in
that he testified that this conversation occurred during the first week he was hired by Nova and
during this conversation he told Bazile and Fabre that he would recommend them to Green
Source. Nguyen was hired by Nova on February 18, 2007. This conversation took place on
February 19, 2007 which would be during the first week that Nguyen was hired by Nova. The
problem with Nguyen's version is that on February 19, 2007 he would not have been telling
Bazile and Fabre that he would be recommending them to Green Source. On February 19, 2007
Bazile and Fabre were already working for Green Source. Also, with respect to Nguyen's denial,
namely that he did not "say to any of his employees that other people weren't getting hired
because they were involved with the Union," (transcript page 180) it is noted that when the
involved conversation allegedly took place the four or two (depending on which version is
credited) employees involved in the conversation were not "his" employees. At the time of the
alleged conversation they were employees of Green Source. The two or four were former
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
44
employees of UNICCO. They were not employees of Nova when this alleged conversation is
asserted to have taken place. In my opinion, the testimony of Bazile is more credible than that of
Nguyen. Bazile's testimony is credited. Accordingly, it is concluded that Nguyen did make the
statement attributed to him by Bazile. But I do not believe that the statement violated the Act.
When the statement was made Nguyen was not a supervisor or a manager with Green Source.
Indeed, it was not shown that he was ever a supervisor or manager with Green Source. It appears
that Nguyen's only role in the hiring by Green Source was his recommendation that the four
employees on his ground crew at UNICCO be hired by Green Source. They were. It was not
shown that the "old" employees who were not hired by Green Source were supervised by
Nguyen or that he would have been in a position to recommend to Green Source whether they
should or should not be hired. On its face the statement by Nguyen as to why the "old"
employees were not hired appears to be speculation on his part. The four former UNICCO
employees initiated this conversation. There was no interrogation on the part of Nguyen.
Nguyen's statement was not accompanied by any explicit or implicit threat. And the statement
itself does not, in my opinion, constitute a threat in that Nguyen was working for Nova and not
Green Source at the time the statement was made and the four employees were not working for
Nova. In my opinion, it has not been shown that Respondent violated that Act as alleged in
paragraph 12 of the complaint.
Conclusions of Law
1. By engaging in the following conduct Nova Southeastern University has engaged in
unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6)
and (7) of the Act.
(a) Maintaining and enforcing the following rule in the Nova Southeastern University
Campus Safety and Traffic Handbook: "No solicitation is allowed on an NSU campus or facility
without the permission of the NSU Executive Administration."
(b) Interfering with the distribution of union literature by an employee of UNICCO to his
co-workers during non-working time and in a non-working area.
(c) Telling an employee of UNICCO that he could not distribute union literature at any
time on Respondent's property.
(d) Having Tony Todaro tell an employee of UNICCO that he could not engage in
solicitation at any campus or facility of Nova Southeastern University without the permission of
Nova Southeastern University.
(e) Having Tony Todaro issue a disciplinary warning to UNICCO employee Steve
McGonigle for violating the unlawful no-solicitation policy of Nova Southeastern University.
(f) Through Tony Todaro, interrogating a former employee of UNICCO concerning his
union activities and implicitly threatening him that employees would not be hired because of
their union activity.
Remedy
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
45
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended24
ORDER
The Respondent, Nova Southeastern University, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Maintaining and enforcing the following rule in the Nova Southeastern University
Campus Safety and Traffic Handbook: "No solicitation is allowed on an NSU campus or facility
without the permission of the NSU Executive Administration."
(b) Interfering with the distribution of union literature by an employee of UNICCO to his
co-workers during non-working time and in a non-working area.
(c) Telling an employee of UNICCO that he could not distribute union literature at any
time on Respondent's property.
(d) Telling an employee of UNICCO that he could not engage in solicitation at any
campus or facility of Nova Southeastern University without the permission of Nova Southeastern
University.
(e) Issuing a disciplinary warning to a UNICCO employee for violating the unlawful no-
solicitation policy of Nova Southeastern University.
(f) Interrogating a former employee of UNICCO concerning his union activities and
implicitly threatening him that employees would not be hired because of their union activity.
(g) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind the following rule in the Nova Southeastern University Campus Safety and
Traffic Handbook: "No solicitation is allowed on an NSU campus or facility without the
permission of the NSU Executive Administration."

24 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
JD(ATL)-05-09
5
10
15
20
25
30
35
40
45
50
46
(b) Within 14 days from the date of the Board’s Order, remove from its files, and ask
UNICCO to remove from its files, any reference to the unlawful discipline of Steve McGonigle
for violating Nova Southeaster University's unlawful solicitation rule, and within 3 days
thereafter notify the employee in writing that this has been done and that the discipline will not
be used against him in any way.
(c) Within 14 days after service by the Region, post at its main campus in Fort
Lauderdale, Florida copies of the attached notice marked “Appendix.”25 Copies of the notice, on
forms provided by the Regional Director for Region 12, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the Respondent at any time since
March 1, 2006.
(d) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C., March 16 2009.
____________________
John H. West
Administrative Law Judge

25 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(ATL)-05-09
Fort Lauderdale, FL
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT maintain and enforce the following rule in our Campus Safety and Traffic
Handbook: "No solicitation is allowed on an NSU campus or facility without the permission of
the NSU Executive Administration."
WE WILL NOT interfere with the distribution of union literature by you during non-working
time and in a non-working area.
WE WILL NOT tell you that you can not distribute union literature on Respondent's property.
WE WILL NOT tell you that you can not engage in solicitation at any campus or facility of Nova
Southeastern University without the permission of Nova Southeastern University.
WE WILL NOT issue a disciplinary warning to you for violating the unlawful no-solicitation
policy of Nova Southeastern University.
WE WILL NOT interrogate you concerning your union activities and implicitly threaten you that
you would not be hired because of your union activity.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL rescind the following rule in the Nova Southeastern University Campus Safety and
Traffic Handbook: "No solicitation is allowed on an NSU campus or facility without the
permission of the NSU Executive Administration."
JD(ATL)-05-09
Fort Lauderdale, FL
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful discipline of Steve McGonigle, and WE WILL, within 3 days thereafter, notify him
in writing that this has been done and that the discipline will not be used against him in any way.
Nova Southeastern University
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
201 East Kennedy Boulevard, South Trust Plaza, Suite 530
Tampa, Florida 33602-5824
Hours: 8 a.m. to 4:30 p.m.
813-228-2641.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY
QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE
ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 813-228-2662.