D.C. Circuit Vacates NLRB Order Against Venetian Casino

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By Lisa Nagele-Piazza

July 10 — A Las Vegas casino's request that police issue criminal citations to labor demonstrators and block them from a private walkway qualifies as a direct petition to government and may be protected by the First Amendment to the U.S. Constitution, the U.S. Court of Appeals for the District of Columbia Circuit ruled July 10 in the 16-year-old case.

The D.C. Circuit vacated a National Labor Relations Board decision that concluded Venetian Casino Resort LLC's request to the police constituted an unfair labor practice in violation of the National Labor Relations Act. The appeals court found that the casino's conduct was covered by the Noerr-Pennington doctrine, which provides First Amendment protection to employer conduct that would otherwise be illegal if it is part of a direct petition to the government.

However, the Noerr-Pennington doctrine has an exception for “sham petitions” that are not “genuinely intended to influence government action,” the court said. Because the board didn't reach this analysis, the court remanded the case for the board to consider the issue.

In a prior ruling, the court agreed with the board that the casino unlawfully interfered with the demonstration when management representatives warned demonstrators that they were trespassing and announced that the Venetian was placing a union representative under “citizen's arrest”.

Casino Contested Use of Walkway

The Venetian is a luxury hotel and casino that opened on the Las Vegas Strip in 1999. Concerns about increased traffic led the county to expand a nearby roadway, but this displaced a public sidewalk in front of the casino.

The casino agreed to build a replacement sidewalk on its property, and it installed a temporary walkway in the location where the permanent sidewalk would be placed.

Two unions were issued a permit to hold a demonstration on the temporary walkway to protest the lack of a bargaining contract with the Venetian.

The Venetian “strenuously objected” to the location of the demonstration, the court said. Police department officials told the casino that officers would attend the rally to protect public safety but they wouldn't arrest trespassers.

Over 1,000 demonstrators attended the rally and marched on the walkway. The Venetian played a recorded message stating that demonstrators could be arrested for trespass. The casino marked its property boundaries in orange paint, and its security guards placed the rally's leader under citizen's arrest.

Of particular significance to the present ruling, the casino also asked police officers to issue criminal citations to the demonstrators and to block them from the temporary walkway.

Following the rally, the Venetian sued in federal court, seeking injunctive and declaratory relief and alleging that the unions and various government entities had impermissibly converted the casino's private property into a public forum. The U.S. Court of Appeals for the Ninth Circuit ultimately rejected that argument, and the U.S. Supreme Court declined to review the ruling.

The unions filed unfair labor practice charges with the NLRB against the Venetian.

Police Requests Protected Unless ‘Sham.'

In 2007, the D.C. Circuit affirmed the board's 2005 ruling that the demonstration was protected activity under the NLRA. The court rejected the Venetian's argument that its was exercising its First Amendment right to petition the government when it broadcasted the anti-trespass message and attempted the citizen's arrest. 

However, the court declined to decide if the casino's request to the police was a protected petition because the board hadn't addressed the issue.

On remand, the board found the conduct wasn't a direct petition to the government protected by the Noerr-Pennington doctrine. The board concluded that only “petitions that seek the passage of a law or rule, or a significant policy decision regarding enforcement,” are entitled to such protection.

But the appeals court disagreed. “Whether conduct constitutes protected petitioning activity ‘depends not only on its impact, but also on the context and nature of the activity,' ” the court said, quoting Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1988).

Applying the principles of the U.S. Supreme Court's ruling in Allied Tube, the appeals court found that “the act of summoning the police to enforce state trespass law is a direct petition to government subject to protection under the Noerr-Pennington doctrine.”

The court said the interests of the petition clause are “served by ensuring the free flow of information to the police.”

However, the court remanded the case for the board to consider the “sham exception.” The Noerr-Pennington doctrine doesn't cover petitions brought with the intent to “further wrongful conduct through the use of governmental process,” the court said.

Judge Brett M. Kavanaugh wrote the opinion, joined by Judges Janice Rogers Brown and Robert L. Wilkins.

NLRB attorneys John H. Ferguson, Linda Dreeben and Kellie J. Isbell represented the board. In addition to Venetian corporate counsel, John J. Manier of Nassiri & Jung LLP in Los Angeles represented the casino.

To contact the reporter on this story: Lisa Nagele-Piazza in Washington at lnagele@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/VENETIAN_CASINO_RESORT_LLC_PETITIONER_v_NATIONAL_LABOR_RELATIONS_.