Nova Southeastern University

National Labor Relations Board - Board Decisions

Aug 26, 2011

357 N.L.R.B. 760 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 74
760
Nova Southeastern University and Service Employees
International Union, Local 32B-32J. Cases 12–
CA–025114, 12–CA–025290, and 12–CA–025298
August 26, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
The central question presented in this case is whether
the Respondent, Nova Southeastern University (Nova),
violated Section 8(a)(1) of the Act by prohibiting em-
ployees of its maintenance contractor, UNICCO Service
Company (UNICCO), from engaging in organizational
handbilling at their place of work—Nova’s campus.1
The judge found the Respondent’s conduct unlawful,
relying on Fabric Services, 190 NLRB 540 (1971),
which held that a property owner violated Section 8(a)(1)
by interfering with the Section 7 rights of its contractor’s
employee.2 The Board has considered the decision and

1 On March 16, 2009, Administrative Law Judge John H. West is-
sued the attached decision in this case. The Respondent filed excep-
tions and a supporting brief; the General Counsel and the Union each
filed an answering brief; and the Respondent filed a reply brief to each
answering brief. In addition, the General Counsel and the Union each
filed cross-exceptions; and the Respondent filed an answering brief
responding to both sets of cross-exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
We shall modify the judge’s recommended Order to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010). Consistent with J. Picini, the details of how the notice should
be electronically posted can be resolved in compliance proceedings.
Because the Respondent has terminated its contract with UNICCO, we
shall also order the Respondent to mail a copy of the attached notice to
the last known addresses of current and former UNICCO employees
employed on the Respondent’s property in order to inform them of the
outcome of this proceeding. In addition, we shall modify the judge’s
recommended Order to conform to our findings and to the Board’s
standard remedial language, and we shall substitute a new notice to
conform to the Order as modified.
2 The judge also distinguished the Board’s decisions in New York
New York Hotel & Casino, 334 NLRB 762 (2001), and 334 NLRB 772
(2001), enf. denied sub nom. New York New York, LLC v. NLRB, 313
F.3d 585 (D.C. Cir. 2002), and in PNEU Electric, Inc., 332 NLRB 616
(2000), enf. denied 309 F.3d 843 (5th Cir. 2002). The Board’s analysis
in those cases has been superseded by our recent decision in New York
New York Hotel & Casino, 356 NLRB 907 (2011), which is discussed
in detail below. For the reasons explained below, we do not find that
the distinctions drawn by the judge between this case and NYNY serve
to distinguish the two cases for the purpose of removing the present
case from the scope of our recent holding in NYNY.
the record in light of the exceptions and briefs and has
decided to adopt the judge’s findings that the Respondent
violated Section 8(a)(1), consistent with our recent deci-
sion in New York New York Hotel & Casino (NYNY), 356
NLRB 907 (2011).
In NYNY, we concluded that the rights of off-duty em-
ployees of the property owner’s contractor must be as-
sessed under a test that considers both the specific Sec-
tion 7 rights at issue and the property interests asserted,
and that seeks an accommodation of the conflicting
rights and interests. Id., slip op. at 7–8. Our holding
there applied to

the situation where . . . a property owner seeks to ex-
clude, from nonworking areas open to the public, the
off-duty employees of a contractor who are regularly
employed on the property in work integral to the own-
er’s business, who seek to engage in organizational
handbilling directed at potential customers of the em-
ployer and the property owner.

Id. at 12–13 (footnote omitted). Here, as in NYNY, an off-
duty employee of the contractor, regularly employed on the
property in work integral to the owner’s business, engaged
in handbilling in nonwork areas open to the public on the
owner’s property as part of an organizing campaign among
the contractor’s employees. Although the handbills were
directed to fellow employees rather than potential custom-
ers, we conclude, for the reasons explained below, that
NYNY still controls. In NYNY, we held:

We conclude that the property owner may law-
fully exclude such employees only where the owner
is able to demonstrate that their activity significantly
interferes with his use of the property or where ex-
clusion is justified by another legitimate business
reason, including, but not limited to, the need to
maintain production and discipline (as those terms
have come to be defined in the Board’s case law).
Thus, any justification for exclusion that would be
available to an employer of the employees who
sought to engage in Section 7 activity on the em-
ployer’s property would also potentially be available
to the nonemployer property owner, as would any
justification derived from the property owner’s in-
terests in the efficient and productive use of the
property. . . .
We leave open the possibility that in some in-
stances property owners will be able to demonstrate
that they have a legitimate interest in imposing rea-
sonable, nondiscriminatory, narrowly-tailored re-
strictions on the access of contractors’ off-duty em-
NOVA SOUTHEASTERN UNIVERSITY 761
ployees, greater than those lawfully imposed on
[their] own employees.

Id. at 13 (footnote omitted).
Applying NYNY, as explained below, we find that No-
va violated Section 8(a)(1) by prohibiting the handbilling
at issue.
Facts
On August 22, 2006,3 as part of a campaign to organ-
ize UNICCO’s employees at Nova, UNICCO employee
Steve McGonigle distributed flyers to his coworkers be-
fore the start of his work shift on the Nova campus.
McGonigle distributed the flyers, which promoted
Charging Party SEIU Local 32B-32J’s “Justice for Jani-
tors” campaign, in the campus parking lot near the physi-
cal plant/central services building, out of which
UNICCO’s employees worked.4 After McGonigle had
been distributing the flyers for 5 to 10 minutes, Nova’s
public safety officer, David Neely, approached
McGonigle and directed him to stop. Neely cited Nova’s
campus safety rule, which stated that “[n]o solicitation is
allowed on any NSU campus or facility without the per-
mission of the NSU Executive Administration.” After
asserting that he had the right to handbill during non-
working hours, McGonigle complied with Neely’s re-
quest and entered the central services building where he
was to report for work.
Once inside, McGonigle discussed his conversation
with Neely with several other UNICCO maintenance
employees. McGonigle then left the building and drove
to Nova’s public safety department, located in another
campus building, to complain that his right to handbill
had been violated. At the public safety department, vari-
ous Nova officials informed McGonigle that he was pro-
hibited from soliciting on campus.
Soon thereafter, Nova brought McGonigle’s handbill-
ing to the attention of McGonigle’s direct supervisor,
Jack Sado, and UNICCO manager Tony Todaro. On
August 24, 2 days after the handbilling, Todaro called
McGonigle and Sado into his office,5 read Nova’s and
UNICCO’s no-solicitation rules to McGonigle, gave him
copies of those rules, and issued him a disciplinary warn-
ing for violating the rules.6

3 All dates are in 2006, unless specified otherwise.
4 Because many UNICCO employees parked in this lot and then en-
tered the central services building, the location of UNICCO’s
timeclock, we presume that the UNICCO employees who received
flyers in the parking lot were off duty, as McGonigle was. Nova does
not contend otherwise. McGonigle and other UNICCO employees
regularly arrived at work before their shifts began.
5 Sado’s supervisor, Eugene Vladoiu, was also present.
6 UNICCO’s no-solicitation policy states that “[s]olicitation and dis-
tribution of unauthorized materials at the job location” is prohibited.
Application of NYNY
We apply the holding in NYNY here because
McGonigle was exercising rights protected under Section
7 of the Act by distributing a flyer promoting SEIU’s
“Justice for Janitors” project. We conclude that by
handbilling, McGonigle exercised core, nonderivative
Section 7 rights, analogous to those that the contractor’s
employees exercised in NYNY. McGonigle’s distribution
of the flyers was part of a campaign seeking union repre-
sentation for himself and his UNICCO coworkers; thus,
McGonigle was exercising his own Section 7 right to
self-organization, as the contractor’s employees did in
NYNY. NYNY, supra, slip op. at 8. In addition, as in
NYNY, McGonigle and his coworkers were off duty at
the time of the handbilling, which took place in an exte-
rior, nonwork area at the location on the Nova campus
where McGonigle was most likely to encounter other
UNICCO employees, his target audience. Indeed,
McGonigle’s protected interest in exercising his Section
7 rights at this location was even greater than the interest
of the employees in NYNY because UNICCO, unlike the
food service contractor in NYNY, had no leasehold on the
campus. There was no other location that could be more
appropriately understood as McGonigle’s workplace.
Although the employees in NYNY sought to communi-
cate with customers and potential customers of their em-
ployer rather than with fellow employees, unlike the
judge, we do not find that factual difference distinguishes
NYNY where, as in NYNY, “the location of the expressive
activity here—the very threshold of the employees’ own
workplace—has been a central site of protected Section 7
activity since the passage of the Act.” Id. at 9–10. Thus,
the Section 7 right at issue here is analogous to that pre-
sented in NYNY in all material respects: the type of pro-
tected activity, its purpose, and the factual circumstances
in which it occurred. As explained in NYNY, we next
consider Nova’s asserted interests in maintaining and
enforcing its rule, which prohibited solicitation (includ-
ing the distribution of literature) without the permission
of Nova’s administration. NYNY, supra, slip op. at 10.
First and foremost, Nova contends that its prohibition
of solicitation is justified by its need to ensure security
on its open campus. We recognize both the validity and
the importance of this goal, but fail to understand how a

The General Counsel did not allege here that UNICCO’s rule was un-
lawful.
During the August 24 disciplinary meeting, Todaro also issued
McGonigle a warning for leaving his work area without permission, in
violation of UNICCO’s rules. That disciplinary warning is discussed
separately, below.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 762
prohibition of distribution in any way advances the goal.7
Nova invites UNICCO and its employees onto its cam-
pus to perform campus maintenance and does not prohib-
it the employees from entering the campus before the
start of their shifts or require that the employees leave the
campus immediately after their shifts. As the judge spe-
cifically found, what was proscribed here was the distri-
bution of literature, not trespassing or unauthorized en-
try. Nova failed to show or even persuasively explain
why the campus would be any less safe if the UNICCO
employees, while on the campus but off duty, either be-
fore or after their shifts, distributed union flyers to fellow
employees. Furthermore, Nova maintained a broad
range of controls over UNICCO and its employees that
addressed any such security risks.8
Nova further relies on the need to ensure that its con-
tractors’ employees remained in their work areas. But
the challenged rule governs distribution of literature, not
the access or location of contractors’ employees. More-
over, the handbilling at issue took place in the parking lot
used by UNICCO employees to access their work areas,
and the prohibition at issue is far broader than necessary
to ensure that contractors’ employees do not stray
throughout the campus while off duty.9 Finally, Nova
asserts a need to control litter that could be a byproduct
of literature distribution. This concern could be ad-
dressed by a narrow ban on littering. Moreover, this
concern is not limited to contractors’ employees or col-
lege campuses and, thus, if accepted as grounds for a
broad proscription on distribution, would swallow this
central Section 7 right. Finally, because UNICCO’s em-
ployees performed the janitorial functions on campus, it
seems unlikely that they would themselves litter.
Ultimately, we find that Nova’s asserted security and
other interests, although legitimate, are not likely to be
adversely affected when contractors’ employees, lawful-

7 The judge reasonably rejected Nova’s argument that school cam-
puses are subject to a “unique threat of violence.” As the judge ob-
served, none of the campus shootings that Nova cites was perpetrated
by employees (of the colleges or their contractors) and, of course, none
was in any way connected to handbilling by such employees.
8 Nova’s contract with UNICCO required UNICCO employees who
would be working on Nova’s campuses to undergo both a background
check (including a security report from Nova’s own public safety de-
partment) and preemployment drug testing. The contract also required
UNICCO to enforce Nova’s safety policies, including its drug and
alcohol prohibitions. More generally, the contract required UNICCO to
agree that “it, its agents and employees will abide by all rules, regula-
tions, and policies of [Nova] during the term of this Contract.” Further,
the contract’s broad indemnification clause—which applied to any and
all costs Nova might incur arising out of acts by UNICCO’s employ-
ees—would seem to bolster UNICCO’s interest in ensuring that its
employees did not engage in misconduct, let alone serious crimes.
9 We note that the UNICCO employees, as maintenance and janitori-
al employees, worked throughout the campus.
ly on the premises, also pass out flyers in the exercise of
their organizational rights in exterior, nonwork areas.10
Thus, these interests do not support Nova’s blanket re-
striction on handbilling by UNICCO’s employees.
Considering the importance of McGonigle’s interest in
exercising his fundamental right to distribute handbills to
coworkers for organizational purposes at the very thresh-
old of his workplace, and the utter lack of evidence con-
necting Nova’s asserted interests with a prohibition on
such handbilling by UNICCO employees, we conclude
that Nova violated Section 8(a)(1) when public safety
officer Neely ordered McGonigle to stop handbilling on
August 22. For the same reasons, we agree with the
judge that the reiterations of the handbilling prohibition
by four additional Nova officials later that same day, and
by Todaro on August 24, also violated Section 8(a)(1).
Other Allegations
1. We adopt the judge’s finding that Nova violated
Section 8(a)(1) when Todaro issued discipline to
McGonigle for violating Nova’s and UNICCO’s hand-
billing restrictions. Because Nova’s enforcement of its
rule against McGonigle’s handbilling was unlawful,
McGonigle plainly could not lawfully be disciplined for
his violation of the rule.11 Nova contends, nonetheless,
that it cannot be held liable for Todaro’s issuance of dis-
cipline at a time when it did not employ him. But the
record demonstrates that McGonigle violated Nova’s no-
solicitation rule; that Nova knew and disapproved of
McGonigle’s violation of its rule; that UNICCO’s con-
tract with Nova required UNICCO to ensure its employ-
ees’ compliance with Nova’s rules; that Nova informed
UNICCO (and specifically Todaro) of McGonigle’s rule
violation; and that Todaro promptly disciplined
McGonigle for his rule violation.12 Based on this undis-
puted sequence of events, we conclude that Todaro acted

10 In contrast to the property owner in NYNY, Nova does not contend
that McGonigle’s handbilling interfered in any way with operations or
discipline on its campus. NYNY, supra, slip op. at 10. In any event, we
see no reason why McGonigle’s distribution of flyers to coworkers in
the parking lot would interfere with Nova’s operations.
11 We note that the rule at issue here, unlike that at issue in NYNY,
applied to both contractors’ employees and Nova’s own employees. As
applied to the latter, the rule was presumptively unlawful and the judge
correctly concluded that Nova failed to prove special circumstances
sufficient to overcome that presumption. Republic Aviation Corp., 324
U.S. 793 (1945); see also TeleTech Holdings, Inc., 333 NLRB 402, 403
(2001) (rule requiring employees to obtain employer’s permission to
solicit was unlawful). Had the General Counsel advanced the theory,
we would hold that the discipline of McGonigle pursuant to the over-
broad rule was also unlawful under Continental Group, Inc., 357
NLRB No. 39 (2011).
12 Although we do not adopt the judge’s analysis of this allegation in
full, we agree with his finding that Nova’s no-solicitation rule, not
UNICCO’s, was the actual basis of the disciplinary action.
NOVA SOUTHEASTERN UNIVERSITY 763
as Nova’s agent when he disciplined McGonigle for
handbilling in violation of Nova’s rule.
2. We also adopt the judge’s dismissal of the allega-
tion that Nova violated Section 8(a)(1) by Todaro’s issu-
ance of a separate warning to McGonigle for leaving his
work area without permission, but only because the rec-
ord does not demonstrate that Todaro acted as Nova’s
agent in issuing that discipline. It is undisputed that this
disciplinary action related to McGonigle’s visit to the
public safety building to complain about Neely’s order
that he stop handbilling, an order that McGonigle cor-
rectly viewed as a violation of his Section 7 rights. We
do not rely on the judge’s finding that McGonigle should
have waited until his break or obtained his supervisor’s
permission to challenge the unlawful handbilling prohibi-
tion. We do, however, agree with the judge that this dis-
cipline was “between McGonigle and UNICCO,” and
“was not an issue which directly involved Nova.”13
3. Finally, we adopt the judge’s finding that Nova vio-
lated Section 8(a)(1) when Todaro asked laid-off
UNICCO employee Jose Sanchez whether he had sup-
ported the Union and then sarcastically suggested that
Sanchez might be able to get paid by the Union for pick-
eting. At the time of this incident in February 2007, No-
va had terminated its contract with UNICCO, had re-
placed UNICCO with several successor contractors, and
had hired Todaro as Nova’s manager overseeing those
contractors. Sanchez was seeking Todaro’s help in get-
ting hired by one of those contractors. Without deciding
whether Todaro’s statements to Sanchez constituted an
unlawful interrogation and an unlawful implied threat, as
the General Counsel alleged and the judge specifically
found, we conclude that they were coercive and therefore
violated Section 8(a)(1) in the context of Sanchez’s re-
quest for assistance in gaining employment. Cf.
Mathews Readymix, Inc., 324 NLRB 1005, 1007 (1997)
(citations omitted) (reiterating Board law that “questions
involving union membership and union sympathies in the
context of a job interview are inherently coercive”).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Nova
Southeastern University, Ft. Lauderdale, Florida, its of-
ficers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 1(f).

13 The pleadings and record in this case do not answer the question
whether the discipline at issue was separately alleged as an 8(a)(1)
violation by UNICCO.
“(f) Coercively linking a former UNICCO employee’s
union support to his lack of employment.”
2. Substitute the following for paragraph 2(c).
“(c) Within 14 days after service by the Region, post at
its Ft. Lauderdale, Florida campus, 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 repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered 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 em-
ployees and former employees employed by the Re-
spondent at any time since March 1, 2006. Further, be-
cause UNICCO’s contract to perform work on the Re-
spondent’s property has been terminated, the Respondent
shall duplicate and mail, at its own expense, a copy of
the notice to the last known addresses of all current and
former UNICCO employees working on the Respond-
ent’s property at any time since the commencement of
the unfair labor practices on March 1, 2006.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
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 vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 764
WE WILL NOT maintain and enforce the following rule
in our campus safety and traffic handbook: “No solicita-
tion is allowed on an NSU campus or facility without the
permission of the NSU Executive Administration.”
WE WILL NOT interfere with your distribution of union
literature during nonworking time and in a nonworking
area.
WE WILL NOT tell you that you cannot distribute union
literature on our property.
WE WILL NOT tell you that you cannot engage in solici-
tation at any campus or facility of Nova Southeastern
University without our permission.
WE WILL NOT issue a disciplinary warning to you for
violating our unlawful no-solicitation policy.
WE WILL NOT coercively link former UNICCO em-
ployees’ union support to their lack of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the following rule in the Nova South-
eastern University campus safety and traffic handbook:
“No solicitation is allowed on an NSU campus or facility
without the permission of the NSU Executive Admin-
istration.”
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files, and ask UNICCO to re-
move from its files, any reference to the unlawful warn-
ing issued to Steve McGonigle, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the warning will not be used against him in
any way.

NOVA SOUTHEASTERN UNIVERSITY
Susy Kucera, Esq. for the General Counsel.
Charles Caulkins, Esq. and David Gobeo, Esq. (Fisher & Phil-
lips LLP), of Fort Lauderdale, Florida, for the Respondent.
Katchen Locke, Esq., of New York, New York, for the Charg-
ing 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–025114 was filed by Local 11,
Service Employees International Union (the Charging Party,
the Union, or SEIU)1 on August 29, 2006, the amended charge
was filed on December 28, 2006, and a complaint was issued

1 At the outset of the trial, 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 there-
fore Local 11 no longer exists. The merger agreement was received as
CP Exh. 1 and the Charging Party’s motion was granted.
on January 26, 2007. The charge in Case 12–CA–025290 was
filed by the Union on February 20, 2007, the charge in Case
12–CA–025298 was filed by the Union on February 22, 2007,
the first amended charge in Case 12–CA–025298 was filed by
the Union on March 5, 2007, and the second amended charge in
Case 12–CA–025298 was filed on June 13, 2007. An order
consolidating case, consolidated complaint and notice of hear-
ing (the complaint) issued on August 28, 2008. The complaint
alleges that Nova Southeastern University (Respondent or No-
va) violated Section 8(a)(1) of the National Labor Relations Act
(the Act), by (1) since on or about March 1, 2006, maintaining
and enforcing the following rule in the Nova Southeastern Uni-
versity Campus Safety and Traffic handbook: “No solicitation
is allowed on an NSU campus or facility without the permis-
sion 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 distri-
bution of union literature by employees of UNICCO2 to their
coworkers during nonworking time and in a nonworking 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 dis-
tribute 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 cam-
pus or facility of Respondent without the permission of Re-
spondent; (5) in or about August 2006 by Tony Todaro in-
structed 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 be-
cause of their union activities; and (7) on or about February 19,
2007, at the Fort Lauderdale campus, by Thai Nguyen, threat-
ened 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 de-
meanor of the witnesses, and after considering the briefs filed
by counsel for the General Counsel and the Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Florida not for profit corporation, with an of-
fice and place of business in Fort Lauderdale, Florida, has been
engaged in the operation of a private not for profit university.

2 The complaint alleges that UNICCO Services Company is a Mas-
sachusetts corporation, with offices and places of business at various
locations throughout the United States, including 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 land-
scaping 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.
NOVA SOUTHEASTERN UNIVERSITY 765
Where, during the 12-month period before the complaint is-
sued, (1) it derived gross revenues, excluding contributions
which, because of limitations by the grantor, are not available
for operating expenses, in excess of $1 million; (2) it received
at its Fort Lauderdale campus gross revenues, excluding contri-
butions 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 pur-
chased and received at its Fort Lauderdale campus goods val-
ued 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 organ-
ization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
When called by counsel for the General Counsel, John San-
tulli, who is Respondent’s vice president for Facilities Man-
agement, testified that General Counsel’s Exhibit 3 shows Re-
spondent’s different campuses, namely the Main campus, the
East Campus, the Oceanographic Campus, and the North Mi-
ami Beach Campus; that he works on the Main campus; that
General Counsel’s Exhibits 4 and 5 are maps of the Main cam-
pus; that the Physical Plant operation, which includes the peo-
ple who maintain, clean, and repair equipment on Respond-
ent’s campuses, is located in the Central Services Building; that
in 2006 the Physical Plant personnel were the contract employ-
ees of UNICCO; that the hourly employees of UNICCO
punched a timeclock at Nova; that in 2006 there was a
timeclock in the Central Services Building; that UNICCO em-
ployees 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 No-
va 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 Manage-
ment in 2006; that the Facilities Management web page also
had a directory for the executive (management and some ad-
ministrative 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 Southeast-
ern 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 Depart-
ment; 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 execu-
tive 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 Vin-
cent as coordinator, and indicates “Nova Southeastern Univer-
sity © 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 Safe-
ty page; that General Counsel’s Exhibit 16 is the Campus Safe-
ty and Traffic handbook for Nova for 2008–2009, which hand-
book is also posted on Nova’s website; that the policies in the
handbook must be followed by any individual entering the No-
va 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 head-
ing “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 situation
when UNICCO was on campus and it was the situation when
he testified at the trial; that there is an understanding that con-
tractor 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 repre-
sentative for the contractor; that the solicitation policy which
was in place in 2006 was first put into effect by Nova approxi-
mately 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 No-
va’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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 766
but rather the website pages were an attempt to direct someone
trying to get information to the correct manager or administra-
tive assistant.
On cross-examination, Santulli testified that, with respect to
the individuals listed on General Counsel’s Exhibit 8—if Toda-
ro is not considered, all of the people listed are employees of
Nova and most would be considered members of the manage-
ment 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 the General Counsel and the Respondent stipu-
lated 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 fol-
lowing is found on page 6 of the contract under the topic head-
ing “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 per-
formed 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 start-
ed; that UNICCO had a no-solicitation policy in their general
policy and procedure manual; that on “7-28-06” James Canav-
an, 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 (the
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 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 inter-
fere; 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 a
requester called in about a problem, which might involve a
safety issue, and the dispatcher would use his name as the re-
questor because the work order would not generate unless there
is a requestor listed; that if he sees an issue while he is out in

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 pa-
perwork 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.
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 gen-
erally 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 au-
thority to purchase parts for Nova, and Nova’s Facilities Man-
agement 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 reques-
tor on any of these.); that General Counsel’s Exhibits 35, 36,
and 37 are work orders dated January 3, 2006, which list Toda-
ro as the requestor; that he did not recall the work order re-
ceived 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 be-
lieved that in August 2006 public safety Officer Neely advised
McGonigle that he could not pass out or post flyers at the facili-
ty. 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 in-
cident 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 regard-
ing Steve McGonigle?
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 distrib-
uting 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. [Tr. 63 and 64.]

Counsel for the General Counsel and the Respondent stipu-
lated to General Counsel’s Exhibit 18. It is an “Incident Re-
NOVA SOUTHEASTERN UNIVERSITY 767
port” of Nova, with a “Security Level” of “Classified.” More
specifically, the report reads as follows:

Occurred from date: Occurred From Time:
8/22/2006 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 Op-
erations 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 Op-
erations Manager Shane Lam, Public Safety Compli-
ance Manager Jim Ewing and Public Safety Coordi-
nator Maria Alberto were notified of the incident as
well.

. . . .

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 Rela-
tions 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 inci-
dent 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 the General Counsel and the Respondent
stipulated “that these are incident reports regarding the public
safety of Nova.” (Tr. 67.)
McGonigle, who was hired by UNICCO in May 2003, testi-
fied that he was lead painter on the Nova main campus; that
while he was supposed to punch in at 7:53 to 8 a.m. he general-
ly 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 build-
ing 17; that the approximately 10 UNICCO maintenance em-
ployees 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 GC Exh. 28) and he passed out a few
flyers, General Counsel’s Exhibit 29, to his coworkers as they
came into work;5 that he saw a couple of janitorial supervisors

4 Taken chronologically, they include (1) a report dated “3/31/2006”
involved two men (One was apparently UNICCO staff member Antho-
ny 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 authori-
zation, 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 discov-
ery of SEIU flyers on bulletin boards in the Health Professions Assem-
bly 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” involv-
ing 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.
5 The flyer is an SEIU flyer which, as here pertinent, indicates as fol-
lows:
Want to Make a Difference?
. . . .
Join hundreds of students and others on the Justice for Jani-
tors 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:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 768
in the area when he was distributing the leaflets; that after he
distributed the leaflets for about 5 to 10 minutes he was ap-
proached by a Nova public safety officer, Neely, who drove up
and told him that he needed to stop leafleting; that he had leaf-
lets 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 in the recep-
tionist 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” (Tr. 112); that he told Lemme that he felt like
he had a right to do this in that he was doing it during nonwork-
ing hours, and he felt it was a violation of his rights; that Vin-
cent 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 (the
Board); that the coordinator wrote down what he said; and that
he went back to work.

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
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 au-
thorization 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.” (Tr. 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 immedi-
ately.” General Counsel’s Exhibit 31 is a “PRO-GRESSIVE
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 writeups 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 Toda-
ro’s office; that sitting at the conference table in Todaro’s of-
fice 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” (Tr. 117); that Todaro
gave him a copy of a page from the UNICCO handbook, Gen-
eral Counsel’s Exhibit 32;6 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 Toda-
ro 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

6 As here pertinent one entry on the page reads as follows: “Solicita-
tion 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.”
NOVA SOUTHEASTERN UNIVERSITY 769
on the Nova campus to anybody other than UNICCO employ-
ees.
On cross-examination, McGonigle testified that he did not
recall if he ever handed out union literature, buttons, or propa-
ganda 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 timeclock 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 solicita-
tion before Todaro gave it to him during their meeting on Au-
gust 24, 2006.
Todaro testified that he “heard of something [about the inci-
dent on August 22, 2006 regarding Mr. McGonigle soliciting
on campus] . . . I’m not even sure of the total details” (Tr. 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 dis-
cipline 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 re-
member.
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. [Tr. 190 with emphasis added.]

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, Con-
tractor 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 solici-
tation 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 pass-
ing 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 testi-
mony 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 re-
calling 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.
A. No, I says [sic] I don’t recall this.
Q. So you don’t recall what your supervisors were do-
ing concerning an incident that occurred on your campus
regarding solicitation during a union organizing cam-
paign—
A. That’s right.
Q. —is that your testimony?
A. That’s correct.
. . . .
Q. So it’s your testimony that Mr. Sado and Mr. Vla-
doiu took it upon themselves to come up with these disci-
plines 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 770
Q. And you’re aware that he distributed leaflets, cor-
rect?
A. Yes. [Tr. 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 breaktime; 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 worktime or not; that McGonigle’s dis-
cipline for soliciting, General Counsel’s Exhibit 30 reads “Mr.
Steve was handing out (solicitation and distribution) of unau-
thorized materials at the job location. (without permission from
Nova Univ. and UNICCO Co.),” and the notation does not
indicate that McGonigle did it 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 perfor-
mance issue but “I don’t know exactly for sure” (Id. at 207).
On redirect, Todaro testified that he did not tell Sado or Vla-
doiu to give the August 24, 2006 disciplines to McGonigle; and
that if he had done that, he may have recalled that “Yes, I prob-
ably would have recalled it.” (Id. at 208.)
Subsequently, Todaro testified that UNICCO’s vice presi-
dent 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 manage-
ment 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. [Tr.
210 with emphasis added.]

When called by Respondent, Santulli testified that if the uni-
versity has an issue with a contractor’s employee, it is dealt
with either by going to the contractor ownership or the desig-
nated representative for the contractor; that he typically dealt
with one of Todaro’s supervisors, Ken Gomulka; that he him-
self 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 manage-
ment of Nova instructing a contractor to discipline or fire one
of the contractor’s employees; that when Todaro was an em-
ployee of UNICCO he did not ever instruct Todaro regarding
what he should or should not do with respect to disciplining or
firing 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 Universi-
ty.
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. Mas-
sey (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 employ-
ees performing those services were given an opportunity to
apply for jobs with the new contractors; that at the time he ap-
proved the hiring of several of UNICCO’s former supervisors
and managers as employees of Nova; that one of those individ-
uals was Sado, who was the maintenance manager for
UNICCO and was hired in February 2007 by Nova as the gen-
eral 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 man-
agement, who was Arlene Morris at that time; that Morris re-
ported 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 GC Exh. 5, which is often referred to as Physi-
cal Plant) at the time of the trial 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 employ-
ees when he was a UNICCO employee and as a Nova employee
Todaro hires individuals.

8 GC Exh. 25 is Respondent’s position description for director—
Physical Plant for 2008. GC Exh. 27 was introduced to show Todaro’s
email address on May 22, 2007, namely “anthony@nova.edu.”
9 GC Exh. 26 is Respondent’s position description for director—
Physical Plant for 2007 and 2006. Santulli testified that the email ad-
dress of Todaro set forth in GC Exh. 27, described above, was the same
email address for Todaro in 2006.
NOVA SOUTHEASTERN UNIVERSITY 771
McGonigle testified that UNICCO lost its contract with No-
va, 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 the Physical Plant director; that when he worked for
UNICCO he (a) supervised approximately 300 UNICCO em-
ployees 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) occa-
sionally 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 6000 a month E-Maint system
work orders; (2) has done written evaluations for about six of
either assistant directors or managers; (3) has reviewed or ap-
proved 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 follow-
ing 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 timeclock in the Eddie Griffin cafe-
teria; 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 testi-
fied as follows regarding this conversation:

Q. Does Mr. Nguyen speak Creole?
A. No.
Q. Was your conversation with Mr. Nguyen in Eng-
lish?

10 Bazile testified that he is from Haiti; that Creole is his native lan-
guage; that he speaks some English; and that he is more comfortable
speaking Creole.
A. Yes, in English.
Q. Can you testify in English about your conversa-
tion?
A. Yes.
Q. Tell me in English what happened during the con-
versation?
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 didn’t call them. [Tr.
79.]

On cross-examination, Bazile testified that he gave an affi-
davit to the Board in April 2007; that he looked at his affidavit
before testifying at the trial; 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 Fa-
bre, ‘a coworker, asked why they—asked why did they hire
new people to do the job and they didn’t call the other employ-
ees’ “ (Tr. 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 support-
er 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 re-
placed UNICCO, after he recommended them to Green Source;
that after he was hired by Nova there were no general conver-
sations 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 com-
pany that’s gong to be doing the grounds on there, and that’s
what I told them. [Tr. 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 772
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 subcon-
tractor 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 Eng-
lish.
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
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” (Tr. 89); and that he “saw him [Todaro] in his truck
and he wave on me” (Tr. 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 con-
versation 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.
Q. Did he work for UNICCO?
A. Yes. [Tr. 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 partici-
pated 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. [Tr. 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 had worked for No-
va for approximately 4 months and who is Respondent’s direc-
tor 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 cam-
pus conducting business.” (Tr. 138 with emphasis added.) On
cross-examination, George testified that he did not have any
personal knowledge of the incidents involved in this proceed-
ing.
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 the General Counsel contends on brief that the
Board holds that it is unlawful for an employer to prohibit em-
ployees from engaging in union solicitation and/or distribution
on their employer’s property on nonworking time in nonwork-
ing areas, in the absence of special circumstances making the
NOVA SOUTHEASTERN UNIVERSITY 773
rule necessary in order to maintain production or discipline,
Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 fn. 10
(1945); that Respondent’s rule as written and as enforced is
overbroad because it restricts its own, as well as subcontrac-
tor’s employees from solicitation and distribution among
coworkers; 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 insti-
tution 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 2 dec-
ades and is “not generally applied to management of Nova
employees. (Tr. 214–215)” (R. Br., p. 10, with emphasis add-
ed); 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 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 busi-
nesses, in post offices, on hospital property, in law offices, in a
Texas cafeteria, in shopping malls, in at least one stock broker-
age 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 sub-
contractors 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 perpetra-
tor(s) was (were) a student(s) at the involved school.12 Re-
spondent does not show how its argument is relevant to the
matter at hand. As correctly contended by counsel for the Gen-
eral 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 actu-
ally 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 protect-
ed concerted activity on an employee’s free time and in non-

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.
work areas is unlawful. Further, the Board held in Schnadig
Corp., 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 en-
forced. We find, accordingly, that the Respondent’s promul-
gation 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 non-
work areas is unlawful. . . .
. . . .
When a rule of this kind is found presumptively un-
lawful on its face, the employer bears the burden to show
that it communicated or applied the rule in a way that con-
veyed a clear intent to permit distribution of literature in
nonworking areas during nonworking time. Ichikoh Mfg.
Inc., 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 communi-
cated 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 elimi-
nate the impact of this facially invalid rule. Respondent violat-
ed 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 mainte-
nance shop on its Fort Lauderdale campus, interfered with the
distribution of union literature by employees of UNICCO to
their coworkers during nonworking time and in a nonworking
area.
Counsel for the General Counsel contends on brief that the
Board has long held that employers may not maintain or en-
force rules denying their off-duty employees access to parking
lots, gates and other outside nonworking 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, nonworking areas, before the start of the workday, a non-
working time; that Respondent unlawfully enforced its unlaw-
ful no-solicitation policy against McGonigle; that the Board
holds that a subcontractor’s employees may engage in solicita-
tion and distribution among coworkers even while working on
the property of a contractor, Southern Services, 300 NLRB
1154, 1155 (1990), enfd. 954 F.2d 700 (11th Cir. 1992) (jani-
tors working for subcontractors at a Coca-Cola plant entitled to
distribute union materials to coworkers); that since McGonigle
leafleted only coworkers, 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 774
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 Re-
spondent cannot require a subcontractor’s employees to request
permission prior to the distribution of union literature on non-
working time and in nonworking areas; that Respondent would
have the discretion to eliminate an employee’s Section 7 rights
by arbitrarily refusing to allow or limit distribution of solicita-
tion; and that Santulli, who would make the decision whether to
grant permission, admitted that he would suggest to a subcon-
tractor’s employee, like McGonigle, making a request to dis-
tribute union literature during nonworking time and in non-
working areas, to distribute in the public swale.
Respondent argues on brief that it is not required to allow
nonemployees to solicit on its campus; that its solicitation poli-
cy 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 employees;13 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 prop-
erty; that McGonigle was an “invitee” to be on Nova’s property
solely and exclusively to perform his duties as a UNICCO em-
ployee; 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)” (R. Br., p.
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 de-
cided 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 Electric, Inc., 309
F.3d 843, 853–855 (5th Cir. 2002), and ITT Industries, 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

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 jani-
tor supervisor saw him. Whether this amounts to “allowed” is question-
able.
15 While the Board’s decision in Southern was decided before
Lechmere, the Eleventh Circuit’s decision in Southern was decided
after Lechmere.
Supreme Court has never addressed the issue of whether a con-
tractor working on property under another employer’s control
can distribute literature, the D.C. Circuit Court of Appeals spe-
cifically 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 solic-
iting 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.” (R. Br., p. 12); and that, accord-
ingly, McGonigle is not afforded the same rights as Nova em-
ployees with respect to union solicitation on campus.
In my opinion Respondent violated the Act as alleged in par-
agraph 7 of the complaint. Neely did not testify at the trial.
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 guar-
anteed in section 7. . . .”
McGonigle worked on the involved Nova campus on a con-
tinuous, 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 timeclock. Relying on the no-solicitation rule found
above to be unlawful, Nova prohibited McGonigle from giving
flyers to his UNICCO coworkers in a nonworking area while he
and they had not yet clocked in.
Fabric Services, 190 NLRB 540 (1971), involved an em-
ployee of Southern Bell who was an installer repairman being
dispatched to Fabric Services’ plant to perform work on South-
ern Bell’s telephone communications located at the plant. He
arrived at the plant wearing a pen pocket protector which car-
ried 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 supervi-
sor 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 refer-
ence will henceforth be referred to as such) rejected the defense
of Fabric Services that since it was not the repairman’s em-
ployer, 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 pages 541–542 concluded as follows:

NOVA SOUTHEASTERN UNIVERSITY 775
. . . 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) be-
yond 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 em-
ployees in the exercise of rights guaranteed in Section 7.”
And Section 2(3) declares, “The term employee shall in-
clude any employee, and shall not be limited to the em-
ployees of a particular employer, unless the Act explicitly
states otherwise . . . .” Moreover, Section 2(9), which de-
fines “labor dispute” as including “any controversy . . . re-
gardless of whether the disputants stand in the proximate
relationship of employer and employee” further 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 specifical-
ly restricted by other express language of the Act. See
Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 192. [Em-
phasis in original.]
. . . .
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 restric-
tive 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 em-
ployment 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 re-
straining kind. But it does not itself supply a statutory
mandate for dismissal. [Emphasis in original.]
. . . .
To exonerate Fabric Services from statutory responsi-
bility 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 with-
in the orbit of the Board’s corrective jurisdiction.” NLRB
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 prac-
tice of subcontracting for services does not automatically cur-
tail Section 7 rights.” Instead of having its own onsite employ-
ees 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 cer-
tain of these services. Under the terms of the contract, Nova
furnished “all supplies necessary to completely and effectively
perform all work defined in this Contract.”17 In effect,
UNICCO employees who work continuously, exclusively, and
regularly at the Nova jobsite as janitors, painters, and landscap-
ers, etc., replace or do the work which could be done by em-
ployees 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 coworkers 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:

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 prohi-
bition against the wearing of union insignia. The judge pointed out that
the wearing of union insignia is a form of self-expression protected by
Sec. 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 spe-
cial 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 dis-
cussed below also distinguish the UNICCO/Nova situation from the
dictum situation described in the judge’s footnote.
17 The following appears on p. 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 p. 1 of the contract:
2. CONTRACTOR’S PERFORMANCE
A. Contractor shall furnish all necessary management, super-
vision, labor, technical support and other accessories and services
for the cleaning and maintenance of the Facility, and other ser-
vices as described in the Specifications.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 776
The right of employees “to self organize and bargain collec-
tively 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 work-
place “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 un-
ion organizational life. . . .’” Eastex, [Inc. v. NLRB, 437 U.S.
556, 570–573, 98 S.Ct. 2505, 2515–2516, 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 prac-
tical site where . . . [the contracting employee] and other . . .
[of the contracting] employees assigned to the same subcon-
tract could distribute union literature and discuss union organ-
ization among themselves. [Emphasis in the original.]
. . . .
When the relationship situates the subcontract employ-
ee’s workplace continuously and exclusively upon the
contracting employer’s premises, the contracting employ-
er’s rules purporting to restrict that subcontract employ-
ee’s right to distribute union literature among other em-
ployees of the subcontractor must satisfy the test of Re-
public Aviation [Corp. v. NLRB, 324 U.S. 79, 65 S.Ct.
982, 89 L.Ed. 1372 (1945).]

In New York New York Hotel & Casino, 313 F.3d 585, 587–
590 (D.C. Cir. 2002) (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 em-
ployees, 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 inter-
ests rather than his property interests [are] there involved.”
Hudgens v. NLRB, 424 U.S. 507, 521–522 fn. 10. . . . [Brack-
ets in original.]
This court’s opinion in ITT Industries, Inc. v. NLRB,
251 F.3d 995, 1000–1003 (D.C. Cir. 2001), thoroughly
analyzed these Supreme Court decisions and others. There,
we explained that although there were suggestions in Su-
preme Court opinions that the controlling distinction for §
7 purposes was between invitees and trespassers, see East-
ex, Inc. v. NLRB, 437 U.S. 556 . . .; Hudgens, 424 U.S. at
521–522 . . ., the Court’s most recent pronouncement in
Lechmere, Inc. v. NLRB, 502 U.S. 527 . . ., reaffirmed the
principle announced in Babcock & Wilcox that the Nation-
al Labor Relations Act confers rights upon employees, not
nonemployees, and that employers may restrict nonem-
ployees’ organizing activities on employer property. See
ITT, 251 F.3d at 1002–03; see also United Food & Com-
mercial 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.” RESTATE-MENT
(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 tres-
passers when they handed out union literature on company
property. But that is the very point of Lechmere, as we ex-
plained in ITT Industries: the § 7 rights of employees entitle
them to engage in organization activities on company premis-
es.[18] See 502 U.S. 537. . . . Nonemployees do not have
comparable rights.

18 Obviously, the right is not absolute in that the employer can have a
lawful no solicitation rule, the employees can be prohibited from en-
gaging in handbilling on company time and in a work area and, as
indicated above, a company could show that a ban is necessary to main-
tain 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 prohibi-
tions, would that employee lose his or her “invitee” status and become
a trespasser since the involved Sec. 7 right is not absolute?
Also in ITT Industries, Inc., which involved employees of the prop-
erty 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 Sec. 7 indeed extends nonderivative access rights to
offsite 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 fn.10
(1976), “A wholly different balance was struck when the organizational
activity was carried on by employees already rightfully on the employ-
er’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 al-
ready 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 Sec. 7 rights to attach with respect to an employer’s prop-
NOVA SOUTHEASTERN UNIVERSITY 777
. . . .
. . . the critical question in a case of this sort is whether indi-
viduals 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 em-
ployer and the employee of a contractor working on its
property. No Supreme Court case decides whether a con-
tractor’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 dur-
ing non-working time so long as they do not unduly dis-
rupt 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 employ-
ees 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 proper-
ty 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 comple-
mentary to the 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 own-
er’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 unlaw-
ful. 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 coworkers 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 nonUNICCO 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

erty if the employer’s employee does not work on that property but
rather is an off-site employee.
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 em-
ployees 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, Vin-
cent, Bias (through Vincent), Lemme, and Santulli (through
Lemme) did not even mention trespassing to McGonigle. Doc-
umentation 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 individu-
als other than McGonigle. In other words, Nova did not treat
McGonigle as some who should be “trespassed” for leafleting
his coworkers 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 theoret-
ical change in the status of McGonigle occasioned by his re-
maining on Nova’s property after he was stopped from hand-
billing. If the theoretical trespass approach is even a valid ap-
proach in the circumstances of this case, Nova waived its theo-
retical opportunity to treat McGonigle as a trespasser. In actual-
ity, Nova never intended to treat McGonigle as a trespasser.
McGonigle was not an outsider seeking access to Nova’s prop-
erty. McGonigle was not on Nova’s property as an invitee do-
ing 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 Gen-
eral 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 relation-
ship 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 ex-
plicitly states otherwise. . . .” Also, as pointed out in footnote 3
of Hudgens v. NLRB, 424 U.S. 507, 510 (1976),

[w]hile Hudgens [the property owner] was not the employer
of the employees involved in this case [which involved prima-
ry picketing within the confines of a privately owned shop-
ping center], it seems to be undisputed that he was an em-
ployer engaged in commerce within the meaning of §§ 2(6)
and (7) of the Act, 29 U.S.C. §§ 152(6) and (7). The Board
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 778
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 Section 2(6) and (7) of the Act. In the lan-
guage—modified in the indented quote below solely to reflect
the names of those involved—of Fabric Services, supra 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 effectua-
tion of an unfair labor practice, . . . [Nova] place[d] itself
within the orbit of the Board’s corrective jurisdiction.” NLRB
v. Gluck Brewing Co., 144 F.2d 847, 855 (C.A. 8) [Bracketed
material other than the names of those involved herein ap-
pears 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 attempt-
ing 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 con-
tract, are the subjects at issue. On its face, the situation ap-
pears 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 non-
trespassers 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. [616] No. 60
. . . . We defer to the Board’s reasonable interpretation of
the Act. Lechmere, 502 U.S. at 536. . . . “When it is un-
clear under established law whether a category of workers
enjoys free-standing, nonderivative access rights [as op-
posed to rights derived through the § 7 rights of the em-
ployees of the property owner], then a court is obligated to
defer to reasonable judgments of the Board in its resolu-
tion of cases that have not as yet been resolved by the Su-
preme Court.” ITT Indus., 251 F.3d at 1003 (emphasis in
original). We agree with the D.C. circuit and are con-
cerned that the Board’s determination that Republic Avia-
tion 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 purpos-
es 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. Re-
public Aviation may well be the correct standard to em-
ploy 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, consider-
ing Lechmere, explicitly whether the term “employee” en-
compasses this relationship between an employer and a
contractor-invitee for the purposes of the Act. That will es-
tablish 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 elec-
tric contracting company bought onto the property to do electri-
cal 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 spe-
cial 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 (ef-
fective 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 specifi-
cally described. Third, the two Pneu employees who were try-
ing to organize other Pneu employees during worktime and in a
work area on the plastic plant jobsite were not only forced to
leave the jobsite 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 prop-
erty rights, Nova asked McGonigle not to hand out leaflets to
his coworkers—while they were in the parking lot and they
were off the clock—anymore, and he was given a copy of No-
va’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 (de-
cided 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

19 Later, the two employees were told by the owner of Pneu that the
landowner did not have the authority to fire them.
NOVA SOUTHEASTERN UNIVERSITY 779
been addressed because of its greater emphasis on the differ-
ence in access rights between employees and nonemployees. In
ITT the D.C. Circuit indicates that the Eleventh’s Circuit’s de-
cision in Southern does not account for Lechmere’s express
reaffirmation of the employee/nonemployee distinction, partic-
ularly its reliance on the statutory mention of the term “em-
ployee.” The D.C. Circuit at 1005 in ITT also indicates as fol-
lows:

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 con-
flicting 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 em-
ployees already rightfully on the employer’s property, since the
employer’s management interests rather than his property inter-
ests 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 “pe-
titioner’s reliance on its property right is largely misplaced.
Here, as in Republic Aviation, petitioner’s employees are ‘al-
ready rightfully on the employer’s property,’ so that in the con-
text 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 proper-
ty, the majority indicates as follows:

In Babcock [which was decided almost 20 years before
Hudgens and over 22 years before Eastex], as we ex-
plained 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 proper-
ty.” Id. at 109–110, 76 S.Ct. at 682–683. [Emphasis in
original.]

This quoted dictum—to the extent it refers to employee activi-
ties—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 employ-
er’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 Co. of Georgia, 54 NLRB 1253
(1944), long before Hudgens and Eastex. The Board’s decision
in LeTourneau Co. of Georgia was reached over a decade be-
fore Babcock. More importantly, the Board’s decision in
LeTourneau Co. 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 Republic Aviation
did not specifically approve the approach taken by the Board in
LeTourneau Co. of Georgia, namely to factor in the employer’s
property rights when dealing with onsite employees of the em-
ployer already rightfully on the property. In Babcock, supra at
111, the Court acknowledged “[t]he Board has applied its rea-
soning in the LeTourneau case without distinction to situations
where the distribution was made, as here [in Babcock], by
nonemployees.” After Republic Aviation, Hudgens, and East-
ex, it was clear, as pointed out by the court in NYNY, supra 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 nonem-
ployee 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 Co. of Georgia, namely not to differ-
entiate between situations which involved employees versus
nonemployees and utilize a balancing test involving the em-
ployer’s property rights even when the property owner’s onsite
employees are already rightfully on the property. I do not be-
lieve that “we noted with approval” supra at 537 in Lechmere
equates with “must” in ITT or the specific overruling of Hudg-
ens and Eastex to the extent they refer to what is to be consided
in a balancing exercise when the case involves on-site employ-
ees 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 fol-
lows:

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 inter-
ests rather than his property interests [are] there involved.”
Hudgens v. NLRB, 424 U.S.507, 521–522 n. 10. . . .

In my opinion, this case, which involves McGonigle solicit-
ing only his coworkers (during nonworktime in a nonwork
area) and not the employees of Nova, which involves
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 780
McGonigle punching a timeclock 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 con-
tracted to provide the following:

13. EQUIPMENT, MATERIALS, AND
SUPPLIES
A. NSU shall furnish all supplies necessary to com-
pletely 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.
I believe that if it were necessary to go beyond Fabric Ser-
vices, 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 con-
cluding that Nova violated the Act in denying McGonigle his
Section 7 right to handbill his coworkers. In Southern the com-
plaint did not allege that Coke unlawfully promulgated or main-
tained its solicitation or distribution policy. Here, Nova’s solici-
tation 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 in-
volved 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 subcontrac-
tor’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 per-
sons 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 con-
trolled.
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 organ-
izers (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 pub-
lic 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 proper-
ty] is infeasible that it becomes necessary and proper to take the
accommodation inquiry to a second level, balancing the em-
ployees’ and employers’ rights as described in Hudgens dic-
tum.” (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. NLRB, 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 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 guaran-
teed in Section 7.” And Section 2(3) declares, “The term ‘em-
ployee’ shall include any employee, and shall not be limited
to the employees of a particular employer, unless the Act ex-
plicitly states otherwise. . . .” Moreover, Section 2(9), which
defines “labor dispute” as including “any controversy . . . re-
gardless of whether the disputants stand in the proximate rela-
tionship of employer and employee” further discloses a statu-
tory aim to give the Act’s various prohibitions a broad rather
than a narrow reading, except, of course, where the prohibi-
tion 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 fn. 11 of the under-
lying decision in Fabric Services distinguished above.]

Also, the court in NLRB v. Gluek Brewing Co., 144 F.2d 847,
855 fn. 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 limi-
tations 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 pre-

20 At pp. 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) explicit-
ly states otherwise’, as well as the definition of ‘labor dispute’ in § 2(9)
expressed the conviction of Congress ‘that disputes may arise regard-
less 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.
NOVA SOUTHEASTERN UNIVERSITY 781
viously established legal classifications. . . . [Citations omit-
ted.]
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
court . . . [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 provi-
sions, must be understood with reference to the purpose of
the Act and the facts involved in the economic relation-
ship. “Where all the conditions of the relation require pro-
tection, 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 mean-
ing from the context of that statute, which “must be read in
the light of the mischief to be corrected and the end to be at-
tained.” [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 “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 rela-
tionships cannot be fitted neatly into the containers desig-
nated “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 in-
to common controversies by economic forces,”28 and that
the very disputes sought to be avoided might involve “em-
ployees (who) are at times brought into an economic rela-
tionship 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 dis-
pute”,30 leaves no doubt that its applicability is to be de-
termined broadly, in doubtful situations, by underlying
economic facts rather than technically and exclusively by
previously established legal classification. [Citation omit-
ted.]
. . . .
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” in-
volves inquires for the Board charged with this duty. Eve-
ryday 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 de-
termining whether unfair labor practices have been com-
mitted, “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 adminis-
tering the statute must determine it initially, the reviewing
court’s function is limited.
. . . .
. . . the Board’s determination that specified persons are “em-
ployees” 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 ser-
vice” 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., 1st Sess. 6.
30 Cf. Phelps Dodge Corp. v. NLRB, 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, [218 Fed. 547, 552
(2d Cir. 1914)].

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 onsite employee of the land-
owner to handbill on the property of the landowner can lawful-
ly 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 subcon-
tractor coworkers does not] transform the status of a subcon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 782
tract employee . . . [in the circumstances of McGonigle found
herein] from that of a business invitee to that of a mere tres-
passer.” 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 coworkers in a nonwork area during non-
worktime, 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 collec-
tively 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 work-
place “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 un-
ion organizational life. . . .’” Eastex, 98 S. Ct. at 2517 (quot-
ing 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 em-
ployees; 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” (GC Exh. 29),21 Nova

21 It is noted that the following appears on p. 2 of the contract be-
tween Nova and UNICCO, GC Exh. 17:
5. CONTRACTOR’S COMPENSATION FOR ROU-
TINE WORK
A. For complete performance of the routine work, in compli-
ance with the Specifications, NSU shall pay to Contractor month-
ly, 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 tax-
es/insurance, fringe benefits, other approved direct costs, over-
head, and profit as derived from Contractor’s Bid Proposal . . . .
[Emphasis added.]
While the contract does speak to “fringe benefits,” they are not spec-
ified in the contract. It appears that under the terms of this contract,
Nova exercised a degree of control of what the UNICCO employees
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 coworkers
by employees like McGonigle who punch a timeclock 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 ap-
proach is not taken, it has been demonstrated—especially con-
sidering 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 em-
ployees of UNICCO that they could not distribute literature at
any time on Respondent’s property.
Counsel for the General Counsel contends on brief that Re-
spondent 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. And while Santulli testified, he did not specifically
deny the testimony of McGonigle that on August 22, 2006,
Lemme, the acting 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.” (Tr. 112.) McGonigle
impressed me as being a credible witness. McGonigle’s unchal-
lenged 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 San-
tulli told McGonigle that he was not allowed to leaflet on cam-
pus, 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 coworkers in a nonwork area during nonworktime
on Nova’s campus, and Respondent, through Neely, violated
the Act when it precluded this activity. Respondent also violat-
ed 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

working on the Nova campus were paid.
NOVA SOUTHEASTERN UNIVERSITY 783
Respondent, and Todaro instructed UNICCO to issue two dis-
ciplinary warnings to UNICCO employee Steve McGonigle
pursuant to its no-solicitation policy.
Counsel for the General Counsel contends on brief that Re-
spondent 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 To-
daro 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 Re-
spondent’s unlawful no-solicitation rule and would not have
been issued but for the 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 Sec-
tion 2(13) of the Act is whether the individual had been placed
in such a position by management that employees could rea-
sonably 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 sup-
plies a reasonable basis for the latter to believe that the princi-
pal 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 act-
ed as an agent in making statements to other employees, com-
pare D&F Industries, 339 NLRB 618, 619 (2003); that the
evidence that Todaro retained the same phone number, email
address, and desk when he was hired by Nova, and when he
worked for UNICCO he was listed on Nova’s website is insuf-
ficient to establish agency by itself; that even if agency is as-
signed 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 dismissed,22 that

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
“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” (R. Br., p. 17);
that since counsel for the General Counsel did not offer any
evidence that Todaro instructed UNICCO to “order” (R. Br., p.
17) discipline, this allegation of the complaint should be dis-
missed; 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 au-
thority to remove any warnings from McGonigle’s UNICCO
file; that McGonigle admitted that he clocked in and subse-
quently on worktime 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 dis-
cipline 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” (R. Br., p. 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, Gen-
eral 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 pursu-
ant 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 the General Counsel, in her October 21, 2008 Op-
position 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 Coun-
sel’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. To argue
otherwise is disingenuous at best. All three of these individuals
were hired by Nova in February 2007. All three of these indi-
viduals should have been available to Nova to call as witnesses
in the trial. Nova called just one, Todaro, and with respect to
the allegations in paragraphs 9 and 10 of the complaint, Todaro

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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 784
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 pres-
ident of labor relations was lawful as far as UNICCO was con-
cerned. 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 re-
membered that but he falsely claims he does not remember the
conversation he had with McGonigle about this discipline. To-
daro 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
(Tr. 190 with emphasis added) and “I guess I don’t remember
those [the two disciplines to McGonigle]. . . .” (Tr. 202.) In my
opinion, someone decided that the better approach in the cir-
cumstances 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 be-
fore 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 indent-
ed quote below solely to reflect the names of those involved
herein—of Fabric Services, supra 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 effectua-
tion of an unfair labor practice, . . . [Nova] place[d] itself
within the orbit of the Board’s corrective jurisdiction.” NLRB
v. Gluck Brewing Co., 144 F.2d 847, 855 (C.A. 8) [Bracketed
material other than the names of those involved herein ap-
pears in original.]

Nova does not deny that on August 22, 2006, five of its repre-
sentatives told McGonigle that he could not handbill his con-
tract coworkers while they all were not working and they were
in a nonwork area on Nova’s campus. As found above, this
itself was a violation of the Act. Nova’s incident report, Gen-
eral Counsel’s Exhibit 18, which is dated “8/22/2006,” indi-

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.
cates that Todaro and Sado were notified of the McGonigle
August 22, 2006 handbilling incident.
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 Coun-
sel’s Exhibit 30, really only speaks to Nova’s solicitation rule
in that even though UNICCO’s rule is referred to in the disci-
pline, 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 dur-
ing lunch and break times. The citing of the UNICCO rule in
the solicitation discipline was false and misleading. It was mis-
direction. 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 with-
out 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 con-
duct? In my opinion, while it explains why McGonigle did
what he did, it does not excuse it. McGonigle could have wait-
ed 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 Feb-
ruary 19, 2007, on or near University Avenue in Fort Lauder-
dale, 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 the 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 Sec-
tion 7 rights, Mathews Readymix, Inc., 324 NLRB 1005, 1007
NOVA SOUTHEASTERN UNIVERSITY 785
(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 iden-
tity of the questioner, and the place and method of interroga-
tion, Rossmore House, 269 NLRB 1176, 1177–1178 (1984),
enfd, 760 F.2d 1006 (9th Cir. 1985); that Todaro was Sanchez’
highest-level supervisor before the Sanchez layoff; that given
that (a) Todaro continued to be a high-level supervisor after
being hired by Respondent; (b) “Sanchez was seeking employ-
ment by Respondent when the interrogation occurred” (p. 20 of
counsel for the 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 sup-
porter when done in the context of unlawful threats, reprisals or
conduct that is otherwise coercive, Diamond Electric Mfg.
Corp., 346 NLRB 857, 891 (2006) (employer violated the Act
by interrogating open union supporter at the same time employ-
er threatened employee with plant closure).
Respondent argues on brief that where the inquiry is “innoc-
uous” 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, supra at 1178 fn. 20
“[t]o hold that any instance of casual questioning concerning
union sympathies violates the Act ignores the realities of the
workplace”; that the 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 Janu-
ary 17, 2007, or 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’ 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’ 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 rea-
sonably 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 the 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 ex-
cuse 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.
Q. Shortly before you were laid off?
A. Yes, like two weeks before. [Tr. 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 con-
versation 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 3
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’
behalf or seeing if Nova had something else for Sanchez was
not made a matter of record. But Todaro is not a credible wit-
ness. When he spoke with Sanchez, Todaro was not sincere.
While Sanchez was looking for employment Todaro linked his
knowledge of Sanchez’ union activity with the possibility of
Sanchez being hired to work on Nova’s campus. Todaro’s
questioning Sanchez ostensibly to confirm what Todaro un-
doubtedly 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 activi-
ties. This amounted to an implicit threat that employees would
not be hired because of their union activities. Questions involv-
ing an individual’s union support in the context of that individ-
ual seeking employment are inherently coercive and therefore
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 786
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 Feb-
ruary 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 the General Counsel contends on brief that when
taken as a whole, Bazile’s mistake regarding who asked Ngu-
yen 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 employees; that while Ngu-
yen 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 land-
scaping operation, and it is more credible that Bazile and his
coworkers were asking about the new hires, Bay Harbor Elec-
tric, 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 sur-
rounding circumstances; that Bazile’s testimony is a fabrica-
tion; that he first testified that he asked Nguyen the question;
that Nguyen remembered the conversation but adamantly de-
nied Bazile’s recollection that he commented on the union in-
volvement 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 cer-
tain 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 consid-
ering the totality of the circumstances, Nguyen’s comments
could not be construed as coercing or interfering with the rights
of “his employees.” (R. Br., p. 20.)
On the one hand, Bazile first testified that he asked Nguyen
the question when he and three other employees met with Ngu-
yen 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 in-
volved is different, the location of the conversation is different,
and what was allegedly said is different. First, it must be deter-
mined 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. Ngu-
yen’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 recom-
mending 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 be-
cause they were involved with the Union” (Tr. 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 employees of UNICCO.
They were not employees of Nova when this alleged conversa-
tion is asserted to have taken place. In my opinion, the testimo-
ny 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 su-
pervisor or manager with Green Source. It appears that Ngu-
yen’s only role in the hiring by Green Source was his recom-
mendation that the four employees on his grounds 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 em-
ployees initiated this conversation. There was no interrogation
on the part of Nguyen. Nguyen’s statement was not accompa-
nied 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 state-
ment 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
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:
NOVA SOUTHEASTERN UNIVERSITY 787
(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 with-
out the permission of the NSU Executive Administration.”
(b) Interfering with the distribution of union literature by an
employee of UNICCO to his coworkers during nonworking
time and in a nonworking area.
(c) Telling an employee of UNICCO that he could not dis-
tribute 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 unlaw-
ful 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
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate 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, Fort Laud-
edale, Florida, 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 with-
out the permission of the NSU Executive Administration.”
(b) Interfering with the distribution of union literature by an
employee of UNICCO to his coworkers during nonworking
time and in a nonworking area.
(c) Telling an employee of UNICCO that he could not dis-
tribute union literature at any time on Respondent’s property.
(d) Telling an employee of UNICCO that he could not en-
gage in solicitation at any campus or facility of Nova South-
eastern 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 South-
eastern University.
(f) Interrogating a former employee of UNICCO concerning
his union activities and implicitly threatening him that employ-
ees would not be hired because of their union activity.

24 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
(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 effec-
tuate the policies of the Act.
(a) Rescind the following rule in the Nova Southeastern Uni-
versity Campus Safety and Traffic handbook: “No solicitation
is allowed on an NSU campus or facility without the permis-
sion of the NSU Executive Administration.”
(b) Within 14 days from the date of the Board’s Order, re-
move 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 al-
tered, 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 inso-
far as it alleges violations of the Act not specifically found.
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 be-
half

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 788
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT maintain and enforce the following rule in our
Campus Safety and Traffic handbook: “No solicitation is al-
lowed on an NSU campus or facility without the permission of
the NSU Executive Administration.”
WE WILL NOT interfere with the distribution of union litera-
ture by you during nonworking time and in a nonworking area.
WE WILL NOT tell you that you can not distribute union litera-
ture 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 violat-
ing the unlawful no-solicitation policy of Nova Southeastern
University.
WE WILL NOT interrogate you concerning your union activi-
ties 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, re-
strain, 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 solicita-
tion is allowed on an NSU campus or facility without the per-
mission of the NSU Executive Administration.”
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