Nova Se. Univ. v. Nat'l Labor Relations Bd.

• Decision Date: 11 December 2015
• Docket Number: Nos. 11–1297,11–1331.,s. 11–1297
• Citation: 807 F.3d 308
• Parties: NOVA SOUTHEASTERN UNIVERSITY, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

807 F.3d 308

NOVA SOUTHEASTERN UNIVERSITY, Petitioner

v.NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 11–1297

11–1331.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 9, 2015.

Decided Dec. 11, 2015.

James M. Walters argued the cause for petitioner. With him on the briefs was Charles S. Caulkins.

Amy H. Ginn, Attorney, National Labor Relations Board, argued the cause for respondent. On the brief were John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Robert J. Englehart, Supervisory Attorney.

Before: GARLAND, Chief Judge, ROGERS, Circuit Judge, and GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Nova Southeastern University petitions for review of the decision and order of the National Labor Relations Board, 357 N.L.R.B. No. 74 (2011), finding that it violated § 8(a)(1) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158(a)(1), by maintaining an overly broad no-solicitation rule on its Fort Lauderdale campus; enforcing that rule against an employee of its onsite contractor and disciplining that employee through its contractor; and making coercive statements to a laid-off employee of that contractor who was seeking employment with Nova's new contractor. We deny the petition for review and grant the Board's cross-application for enforcement of its order.

I.

Nova Southeastern University is a private educational institution with an approximately 300–acre campus in Fort Lauderdale, Florida. In 2000, Nova hired UNICCO Service Company to provide maintenance, landscaping, and janitorial services throughout its campus. UNICCO employees worked out of the physical plant/central services building where they reported for their shifts. Nova's contract required UNICCO employees to undergo pre-employment drug testing and a background check that included a security report from Nova's public safety department. The contract also required UNICCO to enforce Nova's policies, report policy violations to Nova, and ensure UNICCO's employees "abide by all rules, regulations and policies of [Nova]...."

In 2006, UNICCO employee Steve McGonigle arrived on campus before his shift began and distributed handbills to his coworkers in the parking lot adjacent to the central services building. After five or ten minutes, a Nova public safety officer told him to stop, referring to Nova's no-solicitation rule prohibiting any solicitation on campus without prior authorization. McGonigle stated that he had the right to handbill during non-working hours, but complied and went into the central services building. After telling his UNICCO coworkers about what had just happened and Nova's no-solicitation rule, McGonigle went to Nova's public safety department building to complain that his right to handbill had been violated. There, several Nova officials reiterated that Nova's no-solicitation rule prohibited him from soliciting on campus absent Nova's advance permission.

Tony Todaro, who at that time was employed by UNICCO as the Director of Physical Plant on Nova's campus, was informed by Nova of McGonigle's handbilling. According to McGonigle, whose testimony was credited by the Administrative Law Judge ("ALJ"), Todaro called McGonigle into his office two days after the incident and issued him a written disciplinary notice for "handing out (solicitation and distribution) of unauthorized materials at the job location" without prior permission from Nova and UNICCO. Progressive Discipline Notice 1 (Aug. 24, 2006).

Todaro indicated that the practice was to stop immediately.

Nova terminated its contract with UNICCO on February 17, 2007, and replaced UNICCO with several successor contractors. UNICCO laid off its employees who had been working on the Nova campus. Some, like Todaro and Thai Nguyen, another supervisor, were hired by Nova to perform work similar to what they had been doing as UNICCO employees.

The next working day after the layoffs, Jose Sanchez, a former UNICCO employee who had worked at Nova's campus, approached Todaro on campus to seek his assistance in being hired by one of Nova's new contractors. According to Sanchez, whose testimony the ALJ credited, Todaro, now a Nova supervisor, asked Sanchez whether he had supported the union and suggested that he might be able to get paid by the union for picketing. He told Sanchez that he could not help him at that time, but to call him in a couple of months.

Based on charges filed by the Service Employees International Union, Local 11, the General Counsel charged, as relevant, that Nova violated NLRA § 8(a)(1) by maintaining and enforcing an overly broad no-solicitation rule, interfering with the distribution of union literature by an off-duty contractor employee in a non-working area, and issuing a disciplinary warning to that employee. The complaint also charged that Nova violated section 8(a)(1) by interrogating a laid off contractor employee about his union activities and implicitly threatening that laid off employees would not be hired for work on campus because of their union activities. Following an evidentiary hearing, the ALJ found Nova had violated section 8(a)(1) as alleged. Nova filed exceptions. The Board affirmed the ALJ's findings with respect to violations related to the off-duty contractor employee's handbilling and discipline. It modified the ALJ's proposed order with regard to the interrogation of the laid off contractor employee, finding only that Nova violated section 8(a)(1) by making coercive statements linking the employee's union support to his lack of employment. The Board ordered Nova to cease and desist from interfering with its employees' rights under NLRA § 7 in violation of section 8(a)(1); to rescind its no-solicitation rule; and to remove from the handbilling contractor employee's personnel files any reference to the unlawful discipline, ask UNICCO to do the same, and notify that employee in writing that it has done so and that the discipline will not be used against him in any way. Nova was also required to post a remedial notice.

Nova petitioned for review, the Board cross-applied for enforcement, and the cases were consolidated. The court held the cases in abeyance in part pending review of the Board's decision on remand in New York New York, LLC d/b/a New York New York Hotel & Casino, 356 N.L.R.B. No. 119 (2011) (hereafter "NYNY ") and, because one Member of the Board was a recess appointee, pending the Supreme Court's decision in NLRB v. Noel Canning, 573 U.S. ––––, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014).

II.

By way of overview, we note that much of Nova's petition for review centers on the Board's application of its decision in NYNY. There, the Board balanced the employee's rights under section 7 and the employer's rights to control the use of its premises and manage its business and property, and concluded that onsite contractor employees have the right under section 7 to distribute union-related handbills during nonwork time and in nonwork areas, unless the property owner can demonstrate that the handbilling significantly interferes with its use of the property or justifies its prohibition by other legitimate business reasons. The court approved the Board's determination, concluding that the NLRA and Supreme Court precedent granted the Board discretion over how to treat onsite contractor employees for these purposes. New York–New York v. NLRB, 676 F.3d 193, 196 (D.C.Cir.2012). Consequently, the Board did not commit reversible error in deeming NYNY controlling.

Several of Nova's other contentions falter due to its failure to acknowledge the limits of this court's jurisdiction when it did not adhere to the requirements for filing exceptions to the ALJ's decision. Under NLRA § 10(e), "[n]o objection that has not been urged before the Board ... shall be considered by the court, unless the failure ... to urge such objection shall be excused because of extraordinary circumstances." 29 U.S.C. § 160(e). And it is long established that where a petitioner objects to a finding on an issue first raised in the Board's decision, a petitioner must file for reconsideration to afford the Board an opportunity to correct the error, if any. See Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 666, 102 S.Ct. 2071, 72 L.Ed.2d 398 (1982). The Board's rules require, in turn, that any objection must "set forth specifically the questions ... to which exception is taken[,]" 29 C.F.R. § 102.46(b)(1) (2007), and "present[ ] clearly the points of fact and law relied on[,]" id. § 102.46(c)(3). See Spectrum Health–Kent Cmty. Campus v. NLRB, 647 F.3d 341, 348–49 (D.C.Cir.2011) ; 29 C.F.R. § 102.46(b)(2). Application of section 10(e) is mandatory. Exxel/Atmos, Inc. v. NLRB, 147 F.3d 972, 978 (D.C.Cir.1998).

Finally, in urging its petition be granted, Nova does not contest that the Board has "primary responsibility for developing and applying national labor policy." NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786, 110 S.Ct. 1542, 108 L.Ed.2d 801 (1990) ; see Beth Israel Hosp. v. NLRB, 437 U.S. 483, 501, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978). Nor that our review of the Board's decision and order is deferential. See Int'l Transp. Serv., Inc. v. NLRB, 449 F.3d 160, 163 (D.C.Cir.2006). To the extent Nova challenges the Board's factual findings, it acknowledges that these findings are conclusive if supported by substantial evidence on the record as a whole. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951) ; 29 U.S.C. § 160(e). Nova does, however, challenge the Board's extension of its precedent in finding Nova violated section 8(a)(1) as a result of coercive statements made by its employee to a former contractor employee who was seeking employment with Nova's new contractor.

A.

The Board is entitled to summary enforcement of the uncontested portion of its order regarding the no-solicitation rule as applied to...