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Case number 11-1297 at L, Nova Southeastern University Petitioner versus National Labor Relations Board.

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Mr. Walters for the petitioner, Ms.

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Skinny for the respondent.

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Thank you.

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May it please the court.

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My name is James Walters and I represent the petitioner cross-respondent, Nova Southeastern University.

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In brief, NOVA takes issue with the road application of a National Liberal Relations Board rule that took approximately 15 years to formulate, finalize, and eventually get validated by this Court.

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We also take issue with the application of the facts of that particular case to an institution that is completely different.

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In New York and York's case, it involved actual trespass enforcement.

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Can I just ask, it seems to me very clear that since New York and York was decided after this judgment,

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and you did not seek reconsideration that any arguments addressed to whether New York, New York applies are beyond our jurisdiction unless they are purely factual arguments.

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So I think maybe the argument about whether the parking lot is

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work or not work.

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But none of the terms of New York-New York are ones that you raise below.

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So I think we need to start with the question of whether you have any jurisdiction over most of your argument.

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Well, Your Honor, I think you do.

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I know that the National Relations Board has raised their predictable, we didn't file a motion for reconsideration, but our principal argument is not New York-New York where its application does.

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It's the fact that there is an exception.

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There's clearly stated in New York, New York for being able to prove a rationale for an exception to the property right access rule.

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And we tried to prove the existence of that exception by putting on a witness at the trial back in 2008.

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The witness's testimony, even though he was director of public safety, was finally objected to by both the union lawyer and by the government lawyer.

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And as a result, we were not allowed to put on any evidence, which now... That's not accurate.

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You were not barred from putting on any evidence.

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You were barred from putting on any evidence after the date of the unfair labor practice, right?

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I'm talking about the evidence in the unfair labor practice trial, Your Honor.

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Right, but you weren't... Maybe I misunderstood.

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I thought that the evidence that was excluded had to do with public safety events after the date of

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The discipline here.

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The discipline in this case.

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Is that right?

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Well, it was basically the public safety director had just been appointed.

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He'd been chief of police for this small town before that.

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He was very familiar with the campus.

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And basically, he was going to talk about events which happened during that period of time and why.

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Before the discipline or after?

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Well, there was frankly no discipline, Your Honor.

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That's another objection we have.

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Before the acts that are claimed to be discipline.

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No, he was not Director of Public Safety before.

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No, I'm not following the question.

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I thought that he was permitted to testify about any events, experiences, reasons, up to the date of the hand billing in this case.

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But what was excluded was testimony about crimes, et cetera, after the hand-billing in this case.

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Am I right about that?

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That is correct.

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So if I were of the view that it is not relevant to the establishment of the original policy and to its application, that crimes occurred after the establishment of the original policy and its application,

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then those would be excluded.

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And the only evidence you would have is the evidence you were permitted to put on, correct?

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That's what the judge ruled at the time, yes.

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So of that, how do we, of that evidence, where is the evidence that you needed a rule preventing hand billing in a parking lot in order to protect against crime on the campus?

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Well, the rule, it's stated then and I believe it's still in the handbook, simply says before you solicit

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you must obtain advanced permission.

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And there is evidence in the record that no one's ever been denied permission except... I'm only on the public safety question, okay?

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So are there examples where people came on to solicit and committed crimes?

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There are none in the record, no, Your Honor.

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Okay.

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So what is the evidence that soliciting, that a rule against soliciting is needed, was needed at the time,

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for the public safety rationale.

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What was the reason?

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What's the evidence?

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What would the evidence have been?

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What was the evidence?

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Because as you told me, he was allowed to put on any evidence he had up until the time of

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the actual hand billing in this case.

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I don't know that he put on any evidence as to what happened in 2006 when the charge was filed.

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He was not there then.

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He had only been director of public safety and an employee of the university for four months when the trial happened, and that was in the fall of 2008.

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No, but he would have access to the university's records.

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Pardon?

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He would have access to the university's records of any criminal activity that

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Yes, because he had been a former police officer in the Davie Police Department, which is adjacent to the campus.

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So he could have testified about it.

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And the only point was that what happened after, and I'll probably get the name wrong, Mr. McGonagall was told to stop, and then he was disciplined.

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The ALJ said- Mr. McGonagall?

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Yeah.

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The ALJ said evidence about what may have happened after that is not relevant.

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And so the board says you haven't shown, in any event, even if that was an abuse of discretion or error, that you were prejudiced.

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What the board said, kind of cavalierly, was that since we couldn't show that any contractors' employees had engaged in acts of violence,

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And that really misses the point.

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Contractors' employees are subject to the same safety rules that every invitee at the campus, and it is an open campus which makes it unusual, you can enter the campus through any one of the 360 degrees.

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There are some streets for vehicles, but people ride Vespas in, people walk in with their backpacks.

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It's just a completely open campus.

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And our security department, then and now,

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treats vigilance as a commodity that they have.

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What is the vigilance relating to hand billing?

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This is a question I don't, it doesn't seem like, regardless of what lack of evidence there was in the other way, what evidence did you put on, this is your responsibility to put on evidence for an exception, what is the evidence that you needed a hand billing rule aimed at employees and contractors

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in order to protect the campus.

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What was the evidence that we needed?

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The evidence generally, Your Honor, from the Director of Public Safety was that he and his forces need to be constantly vigilant as to what everybody was doing and if anything was doing something suspicious,

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That's where the eyesight goes to.

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And if we know that you're handing out, you know, union solicitations to organize the employees of a contractor, the Vice President Santulli said, if I would have known that, I would have approved it.

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So it wasn't... He wouldn't have approved it.

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He would have approved it on the swale.

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Isn't that what he said?

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Yes.

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He would not have approved it in the parking lot.

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He would have approved it on the swale outside the campus, right?

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Well, yes.

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But he didn't even know the content.

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And the whole purpose of the rule is, advise us what the content is.

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And there's some testimonies.

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And if you advise us as the contact, we're going to exclude you from the campus.

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We're going to put you on the swale, right?

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Yes.

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But the rule is not an exclusion rule like New York, New York is.

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In New York, New York, they were saying, basically, if you come on our property at this particular time, even when you're off duty, we're going to have the Las Vegas Police Department arrest you.

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There was never a threat like that.

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This was, I think, a permit rule, the same as with cars.

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If you're going to solicit, just tell us what you're soliciting for.

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And frankly, I think one of the big reasons is, like most major universities, they have a pouring agreement, which is an arrangement with one of the two

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one of the two larger soft drink companies to exclusively use their product.

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So if I am a pizza retailer and I want to hand out leaflets at the campus that provides a slice of pizza and a sip of X brand of cola like that and it's the wrong brand, it doesn't get distributed.

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So the real reason had nothing to do with

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With safety, it was really the Saturday Night Live gag, no Coke, Pepsi.

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Is that right?

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Well, that's the reason I think that was given in the record below, yes.

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So that's not a safety explanation at all.

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When we get paid more by Pepsi, then we get paid by Coke.

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I'm not saying that's a bad rationale, but that is not the rationale you argued.

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Somebody from Atlanta does a bad rationale.

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I got it.

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I got it.

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That's the rationale.

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Show us the content and we'll let you distribute.

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And I think the board said just because none of your contractors have ever engaged in violence, and I should point out,

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that as of the point of the unfair labor practice charges being filed, there were not this series of campus shootings and massacres that have occurred just frequently since then.

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And I think back then, the public safety people were being, particularly because of the vulnerability of their campus, they were being excluded.

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I don't think anybody doubts the concerns about safety on campuses.

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The question is whether it has anything to do with this rule.

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That's really the question.

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The rule is a rule about hand billing by employees and their contractors.

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It's not a rule about anything else.

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That's what the question is, and what is the justification for that?

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Well, Your Honor, if I could put the rule in context.

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The rule, most rules that the NLRB attempts to or successfully does invalidate are handbook rules that apply to employees and that are directed to employees.

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This particular rule is from the Campus Safety Book.

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which applies to, in theory, everybody who enters the campus, which could be anybody.

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We've always treated people on our campus as invitees.

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We don't care what kind they are.

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If they're faculty, they'll have a faculty ID card.

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If they're students, they'll have a student ID card.

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If there's someone just wanting to walk in and see how pleasant it is, they won't have an ID card at all.

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But this applies for the safety of people coming on the campus.

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And one of the minor rules in the safety rule is before you solicit, tell us what the content is.

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And that's a very innocuous, benign rule.

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And that's the only thing the board and the SEIU could come up with to show that there had been anything remotely looking like a violation.

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And all we tried to do is show through testimony, which was denied by the judge, that it's a benign rule and it has a purpose.

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And I think the exclusion, your honor, of testimony from the public safety director just because he'd only been there for a while.

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It's not because he had been there, it's because his testimony was about things that happened after the event in question.

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Well, I mean, it's kind of tough to follow, but I actually read through the transcript and basically he was put on and

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John George was his name, and he said the solicitation permission rule was grounded in safety and security of students and employees.

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He said there was a public safety component to it, which he never really got to explain, and at that point he used the T word, terrorism.

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And that's at appendix page 248.

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And Ms.

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Kachera, who was the NLRB's lawyer, objected because he'd only been there four months.

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And then Ms.

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Locke, the service employees union lawyer, objected because, and I quote, public safety or resident or student safety isn't a defense under the law, which to me is just a silly statement.

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But that's how this case ended up.

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And frankly, what we've got is a safety rule embedded in a whole lot of other safety rules applicable to a student body, its faculty, its visitors, its contractors.

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And at that point, we end up with a board order.

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And this is the part that's painful, the board order anymore.

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What board orders do is they invalidate in order to rescind a rule.

[00:13:30] Speaker 05:
I understand your point.

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You say this is a benign rule, but it depends how it's enforced, whether it's benign or not.

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And in the labor context under the statute, you have to meet the objections that you may be interfering with Section 7 rights.

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So you have to show

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that you have this public safety concern.

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I think that's what at least I'm focusing on.

[00:14:05] Speaker 02:
I understood, Your Honor.

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I understood.

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And littering is not what's involved.

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Littering is not an issue.

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Well, it was below, but it's encompassed in probably one of the purposes of many of the rules, littering, yes.

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But as the judge pointed out, the people in the contractor unit are responsible for picking up the litter, and surely they wouldn't litter in their own jobs.

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I'm not sure I understand that or not.

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Thank you.

[00:14:41] Speaker 02:
Thank you.

[00:14:43] Speaker 01:
We'll hear from the other.

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Further questions?

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We'll hear from the LRB.

[00:14:53] Speaker 00:
Good morning Amy again for the NLRB.

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I do want to start by saying that in terms of the board's application of New York, New York here, we feel that Nova did have an obligation to file a motion for reconsideration with the board if they felt that the board should not have applied that rule here.

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In terms of

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certain factual matters that go to the rule.

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I mean, I'm happy to speak about those if the court is interested, but the board made findings based on substantial evidence that the situation here with McGonigal hand-billing in the parking lot off duty was similar to the hand-billing issue in New York, New York, similar enough that it fell under the same rule for contractor employees, that he was privileged to engage in that Section 7 activity.

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As to the evidence having to do with safety that would allow NOAA to enforce that rule against McGonigal, there is no evidence in the record and there was no proffered evidence that

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contractor employees who are there to perform work on the property would somehow be creating an additional danger by handing out flyers while they were there already off-duty.

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There's no content that McGonigal wasn't allowed to be there off-duty.

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He was already there off-duty.

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He testified he arrived at work over an hour early every morning to see his coworkers and do what, I don't know, have coffee or something.

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And he, there's no showing that,

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A contractor employee who has a relationship to the property, and that's what's important here, and that's what was important in New York, New York, would somehow then present an additional danger because they were engaging in Section 7 activity.

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With respect to the handbook rule itself,

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The board found that the rule was overbroad on its, was unlawful on its face because it was overbroad, that maintaining the rule itself was a violation of Section 81 of the Act.

[00:17:04] Speaker 00:
And in our brief, we've asked for some reinforcement of that finding because it was not challenged in Nova's opening brief.

[00:17:11] Speaker 01:
Why don't we pause and ask members of the court whether there are questions?

[00:17:14] Speaker 05:
Sure.

[00:17:15] Speaker 05:
I thought your brief was as to its own employees.

[00:17:18] Speaker 05:
As to its own employees, that's correct.

[00:17:21] Speaker 01:
If there aren't any further questions, and maybe the better part of valor here is to sit down.

[00:17:26] Speaker 00:
I will reserve your time for other activities.

[00:17:30] Speaker 00:
Thank you very much.

[00:17:31] Speaker 00:
Can I just ask you a question, though?

[00:17:33] Speaker 05:
I want to be clear.

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As I read the same transcript that we're talking about here, Mr. George did get to put on evidence about

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the university's concerns about security.

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And the only thing he was limited from testifying about is what happened after

[00:18:11] Speaker 00:
The proffer, Your Honor, was, quote, events that have to do with safety.

[00:18:18] Speaker 00:
Yes.

[00:18:19] Speaker 00:
And these events were events that occurred within four months of the November 2008 hearing, whereas the incident here occurred in August of 2006.

[00:18:28] Speaker 05:
But he had already testified, is what I'm getting at.

[00:18:32] Speaker 05:
Yes.

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About concerns, safety and security concerns.

[00:18:35] Speaker 05:
That's right.

[00:18:36] Speaker 05:
Because your brief is arguing, as I read it, that any error would be harmless.

[00:18:43] Speaker 05:
Because they haven't shown prejudice.

[00:18:45] Speaker 00:
Yes, we are saying that they know that has not shown prejudice as to if they weren't able to show that the judge abuses discretion, excluding evidence.

[00:18:56] Speaker 00:
We're saying that they have shown no prejudice because the evidence as to things that happened to your subsequent not be relevant to the enforcement of the rule against McGonigal.

[00:19:08] Speaker 01:
Well, it's not relevant.

[00:19:10] Speaker 01:
It's not an error to begin with.

[00:19:13] Speaker 01:
Isn't that right?

[00:19:14] Speaker 05:
That's right.

[00:19:15] Speaker 05:
That's right.

[00:19:16] Speaker 05:
Right.

[00:19:16] Speaker 05:
I know.

[00:19:16] Speaker 05:
But they are arguing it was an error.

[00:19:19] Speaker 05:
So let me ask one other question because Nova's brief is that there simply isn't evidence that Totaro himself imposed the discipline on McGonagall.

[00:19:41] Speaker 05:
that there were two other people there who imposed the discipline.

[00:19:47] Speaker 00:
There were two other people there whose signatures are on the discipline form, but the board found that Todaro disciplined McGonigal because McGonigal was told Todaro wanted to see him.

[00:19:59] Speaker 00:
They went to Todaro's office where Todaro explained what the write-up was for and said McGonigal couldn't distribute anything on Nova's property because it's private property.

[00:20:08] Speaker 05:
So Todaro set the substantive

[00:20:12] Speaker 05:
charge as it were.

[00:20:14] Speaker 05:
That's right.

[00:20:15] Speaker 05:
And the other two were doing ministerial acts in terms of signing the document?

[00:20:19] Speaker 00:
Well, Todaro is the one who explained to McGonigal what the discipline was for and explained the policy to McGonigal.

[00:20:27] Speaker 00:
So those would be the facts that the board relied on to say that Todaro is the one who disciplined McGonigal.

[00:20:36] Speaker 00:
Also important to this is that Todaro denied

[00:20:41] Speaker 00:
saying he denied this situation, saying he didn't remember this meeting, but the judge specifically said that that was false, that Todaro saying he didn't recollect was false, and specifically credited McGonigal that Todaro is the one who told him these things in the meeting as to what he was being disciplined for and what the policy was and why.

[00:21:01] Speaker 00:
All right.

[00:21:06] Speaker 00:
Thank you.

[00:21:07] Speaker 00:
Thank you very much.

[00:21:08] Speaker 01:
Does the volunteer conditioner have any time?

[00:21:13] Speaker 01:
Let's double that.

[00:21:14] Speaker 01:
You could have a minute.

[00:21:22] Speaker 02:
Excuse me, I'd just like to respond to two points.

[00:21:25] Speaker 02:
I've always been troubled looking at the record about the agency issue ascribed to Mr. Todaro, who at the time of this alleged unfair labor practice was an employee of Unico.

[00:21:38] Speaker 05:
Well, the record, though, and the board is arguing that on the 17th, the contract ended with Unico.

[00:21:50] Speaker 05:
and all of its employees were laid off.

[00:21:54] Speaker 05:
And that Mr. Todaro was hired by Nova.

[00:22:01] Speaker 05:
And the next, he was hired the next day by Nova.

[00:22:04] Speaker 02:
That's true, Your Honor.

[00:22:06] Speaker 05:
That is true.

[00:22:06] Speaker 02:
Yeah, that is true.

[00:22:07] Speaker 02:
And at the time of the trial, he was an employee of Nova.

[00:22:10] Speaker 05:
No, no, no.

[00:22:10] Speaker 05:
The key is that the next day, the 18th, he was an employee of Nova.

[00:22:16] Speaker 05:
And that's when this discipline occurred.

[00:22:19] Speaker 02:
I'm not sure I remember it that way, but... Well, that's in the red brief.

[00:22:25] Speaker 05:
And if you think that's inaccurate, tell me why.

[00:22:29] Speaker 02:
My understanding is that he was tagged for agency status for discipline from UNICO that occurred shortly after the 2006 handling incident.

[00:22:43] Speaker 02:
And my theory has always been that the board had to do that to show some enforcement of an otherwise benign rule, because the person who initially said something to McGonigal about passing out leaflets was admittedly a public safety officer, which is the equivalent in the industrial section as a guard.

[00:23:01] Speaker 02:
And guards are one of those classes of people that cannot invoke management's wrath and committed unfair labor practice against a fellow worker.

[00:23:10] Speaker 02:
93 of the Act defines a guard as someone who enforces against employees and other persons' roles to protect property of the employer or to protect the safety of persons on the employer's premises.

[00:23:21] Speaker 02:
So Healy was not a suitable agent, so they had to find someone else and construct this agency theory

[00:23:27] Speaker 02:
to put some teeth into what we consider to be a benign rule.

[00:23:35] Speaker 02:
Your Honor, just to remind me, one final comment since I think I did reserve a couple of minutes is on the standard.

[00:23:43] Speaker 02:
I mean, we are raising New York, New York, even though we think architecturally and geographically and every other way, it doesn't really apply and shouldn't apply to us.

[00:23:51] Speaker 02:
Property rights have never been at our forefront because of the open campus.

[00:23:57] Speaker 02:
But the board did cite New York, New York when it ruled against us.

[00:24:01] Speaker 02:
And we think we're entitled to say, basically, one suit does not fit all, and it certainly doesn't fit our particular campus.

[00:24:09] Speaker 05:
Right.

[00:24:10] Speaker 05:
But I thought the chief judge went through this.

[00:24:13] Speaker 05:
initially.

[00:24:14] Speaker 05:
You didn't file a motion for reconsideration, and your response was, doesn't matter, because our theory at trial was the following.

[00:24:22] Speaker 05:
So I thought you acknowledged.

[00:24:23] Speaker 02:
Well, you know, I think so, but I would just like to leave on citing Judge Henderson, who was part of the opinion in New York, New York.

[00:24:33] Speaker 02:
along with your honor.

[00:24:35] Speaker 02:
And she felt a concurring opinion, which I think is kind of poignant at the time.

[00:24:39] Speaker 02:
She says, and I quote, in my view, we're no way retreating from the requirement that in reaching a proper accommodation between Section 7 and private rights, the board is obliged to engage in considered analysis and explain its chosen interpretation.

[00:24:53] Speaker 02:
She finishes that up by saying that recognizing the fact-specific nature of its inquiry, the board in New York, New York left open the possibility that in some instances, property owners will be able to demonstrate, which our contention is we weren't able to do, that they have a legitimate interest in imposing reasonable, non-discriminatory, narrowly tailored restriction on access.

[00:25:16] Speaker 05:
And so the question is, what evidence would you have put in

[00:25:23] Speaker 05:
that would have been relevant to the period at issue that you did not get to put in.

[00:25:30] Speaker 05:
Not all these crimes after the fact, but the crimes before the fact.

[00:25:37] Speaker 02:
I can give you a general nature of the evidence.

[00:25:39] Speaker 05:
Has a proffer been made somewhere?

[00:25:41] Speaker 02:
A proffer was not made.

[00:25:42] Speaker 02:
A proffer was not made.

[00:25:44] Speaker 02:
This was a brand new person in the position.

[00:25:45] Speaker 02:
A proffer was not made.

[00:25:47] Speaker 02:
But the judge, based on two objections from the other lawyers, basically said he wasn't going to allow anything to do with terrorism into the record.

[00:25:57] Speaker 02:
And I don't know.

[00:25:58] Speaker 01:
I mean, that's our principal objection.

[00:26:00] Speaker 01:
But that wasn't your objection in the brief.

[00:26:02] Speaker 01:
The brief, I mean, this is coming as a little bit of additional surprise to me.

[00:26:06] Speaker 01:
Your brief on page 47, 41 says,

[00:26:10] Speaker 01:
The ALJ barred George from testifying as to those events on the grounds that they occurred after the October 22nd McGonigal incident, which according to the ALJ meant they were not relevant to this case.

[00:26:24] Speaker 01:
Your argument in the brief is that events after August 22nd are relevant.

[00:26:30] Speaker 01:
I didn't see an argument that the judge did anything else to bar evidence here.

[00:26:37] Speaker 01:
You know, and your brief doesn't say anything to suggest that the witness was restricted in any way other than that he couldn't testify to events after the McGonigal incident.

[00:26:49] Speaker 01:
Isn't that right?

[00:26:50] Speaker 02:
That's true, Your Honor.

[00:26:52] Speaker 02:
But that includes a lot of areas, too.

[00:26:54] Speaker 05:
No, but my question was, what evidence did he not have the opportunity to present regarding security concerns

[00:27:04] Speaker 05:
on or before August 22nd.

[00:27:07] Speaker 02:
I can only surmise based on what... Well, that's not any good.

[00:27:11] Speaker 05:
That's what I'm getting at.

[00:27:12] Speaker 05:
But either he had evidence that he didn't get a chance to present or not.

[00:27:20] Speaker 02:
I think it's clear that it would have related to a university's security policies in their totality dealing with a large, target-rich student population in an open area.

[00:27:30] Speaker 02:
I'm fairly sure that would have been the case.

[00:27:33] Speaker 05:
But that was presented.

[00:27:35] Speaker 05:
He testified to that.

[00:27:36] Speaker 05:
And that was evidence.

[00:27:38] Speaker 05:
That was before the ALJ.

[00:27:40] Speaker 05:
What I'm trying to find out is how you were prejudiced by that ruling.

[00:27:45] Speaker 05:
What evidence would you have presented?

[00:27:49] Speaker 02:
You know, I wasn't there in the trial year, and I can only guess, but I do.

[00:27:53] Speaker 05:
No, I don't want to guess.

[00:27:54] Speaker 05:
I mean.

[00:27:55] Speaker 02:
Because the problem has gotten worse, as we know.

[00:28:02] Speaker 02:
Further questions?

[00:28:03] Speaker 05:
Thank you.

[00:28:03] Speaker 02:
Thank you.

[00:28:04] Speaker 02:
We'll take the matter under submission.

[00:28:05] Speaker 02:
Thank you.