Nova Southeastern University v. National Labor Relations Board
807 F.3d 308
D.C. Cir.2015Background
- Nova Southeastern University contracted UNICCO to provide on-campus maintenance and janitorial services; UNICCO employees worked regularly on Nova’s Fort Lauderdale campus.
- Nova maintained a broad no-solicitation rule forbidding solicitation on campus without prior authorization; Nova’s public-safety officers enforced the rule.
- UNICCO employee Steve McGonigle distributed handbills in a campus parking lot before his shift; Nova told him to stop and a UNICCO supervisor (Todaro) later issued a written disciplinary notice.
- Nova replaced UNICCO with successor contractors in February 2007; some former UNICCO supervisors (including Todaro) were hired by Nova.
- A laid-off UNICCO employee, Jose Sanchez, sought help from Todaro to get rehired by a new contractor; Todaro asked if Sanchez had supported the union and sarcastically suggested union pay for picketing.
- The NLRB found Nova violated NLRA § 8(a)(1) by (1) maintaining/enforcing an overly broad no-solicitation rule (as applied to on-site contractor employees and Nova’s own employees), (2) disciplining McGonigle via a contractor supervisor acting as Nova’s agent, and (3) making coercive statements to Sanchez; the D.C. Circuit enforced the Board’s order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nova’s no-solicitation rule unlawfully prohibited section 7 activity by on-site contractor employees | Nova: On-site contractor employees are like nonemployee organizers (Lechmere/Babcock), so Nova can bar solicitation on its property | NLRB/Nova: Board’s NYNY framework treats on-site contractor employees as more like employees with section 7 rights; Nova’s rule was overbroad and unjustified by security needs | Held: NYNY controls; McGonigle’s handbilling was protected and the rule was unlawfully applied to contractor employees |
| Whether Nova’s no-solicitation rule as applied to Nova’s own employees is reviewable here | Nova: ALJ erred; challenges to rule should be considered | Nova: (procedural) sought review below | Held: Court lacks jurisdiction to review portion as to Nova’s own employees because Nova failed to properly except to the ALJ’s findings under §10(e) |
| Whether Nova can be held liable for discipline imposed by a contractor supervisor | Nova: Todaro was a UNICCO supervisor; discipline by contractor is not Nova’s act | NLRB: Todaro functioned as Nova’s agent (contract required contractor to enforce Nova rules; visual indicia of authority); imputation appropriate | Held: Substantial evidence that Todaro acted as Nova’s agent; discipline imputable to Nova |
| Whether statements by Todaro to a laid-off contractor employee about union support and potential hiring were coercive | Nova: No hiring authority; not a job interview or hiring decision; statements not unlawful | NLRB: In the owner–contractor context, an owner supervisor who can assist hiring can create a coercive “functional equivalent” of an interview; statements could reasonably restrain NLRA rights | Held: Board reasonably applied its precedent; Todaro’s remarks were coercive in context and violated §8(a)(1) |
Key Cases Cited
- Lechmere, Inc. v. NLRB, 502 U.S. 527 (distinguishing nonemployee organizer access rules)
- Babcock & Wilcox Co. v. NLRB, 351 U.S. 105 (access limitations for nonemployee organizers)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (substantial-evidence review standard)
- Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645 (requirement to urge objections before the Board under §10(e))
- New York New York v. NLRB, 676 F.3d 193 (D.C. Cir. 2012) (Board’s NYNY framework treating on-site contractor employees’ rights)
- Progressive Elec., Inc. v. NLRB, 453 F.3d 538 (D.C. Cir. 2006) (agency principles and employer liability for agents)
- Int’l Ass’n of Machinists v. NLRB, 311 U.S. 72 (agency principles in NLRA enforcement)