Venetian Casino Resort, L.L.C. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 17, 2006 Decided May 8, 2007

No. 05-1396

VENETIAN CASINO RESORT, L.L.C.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS,

INTERVENOR FOR RESPONDENT

Consolidated with

05-1439

On Petition for Review and Cross-Application for

Enforcement

of an Order of the National Labor Relations Board

John J. Manier argued the cause for petitioner. With

him on the briefs was Richard S. Rosenberg.

Richard A. Cohen, Senior Attorney, National Labor

Relations Board, argued the cause for respondent. With him on

the brief were Ronald E. Meisburg, General Counsel, John H.

2

Ferguson, Associate General Counsel, Aileen A. Armstrong,

Deputy Associate General Counsel, and David S. Habenstreit,

Attorney.

Michael T. Anderson argued the cause for intervenor.

With him on the brief were Richard G. McCracken and Joni S.

Jacobs.

Before: RANDOLPH, GARLAND and GRIFFITH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: In response to a union

demonstration on its sidewalk, the Venetian Casino Resort, LLC

(“Venetian”) took actions that the National Labor Relations

Board (“NLRB” or “Board”) concluded were unfair labor

practices that violated section 8(a)(1) of the National Labor

Relations Act (“NLRA” or “Act”). The Venetian broadcast a

message over loudspeakers warning the demonstrators that they

were committing criminal trespass, attempted a “citizen’s arrest”

of a union official, and asked the police to keep the

demonstrators off the sidewalk. In this petition for review of the

Board’s order, the Venetian argues that its conduct, which we

conclude the Board reasonably found was intended to interfere

with a lawful demonstration, was nevertheless protected by the

First Amendment. We conclude that the broadcast message and

the attempt to arrest the union official were not so protected and

therefore affirm the Board’s decision on those points. Because

the Board failed to address whether the First Amendment

protected summoning the police, we remand this matter to the

Board to address that question.

I.

3

The Venetian is a luxury hotel and casino in Las Vegas,

Nevada built in 1999 on the site along Las Vegas Boulevard

(commonly known as “the Strip”) where the Sands Casino and

Hotel once stood before it was razed to make way for the new

resort. To accommodate the projected increase in vehicle traffic

that the Venetian would attract, Clark County, Nevada expanded

Las Vegas Boulevard by one lane, displacing the public

sidewalk that previously ran in front of the Venetian’s property.

The Venetian agreed to build another sidewalk on its property

running parallel to the new lane in Las Vegas Boulevard. In

February 1999, when the public sidewalk was demolished to

make way for the new lane in the boulevard, a temporary

walkway was built where the new sidewalk would eventually

run. At about the same time, it was reported in the local media

that the Culinary Workers Union, Local 226 and Bartenders

Union, Local 165 (collectively, “Union”) planned to hold a rally

on the temporary walkway protesting the fact that unlike the

Sands, its predecessor on the site, “the Venetian did not have a

union contract.” Official Record of Proceedings Before the

National Labor Relations Board at 28, Venetian Casino Resort,

LLC, 28-CA-16000 (April 3, 2003) [hereinafter Record of

Proceedings]. A local newspaper described the demonstration

as an element of the Union’s “escalating labor battle” with the

Venetian. Jeff German, Sidewalk Showdown Set, LAS VEGAS

SUN, Feb. 23, 1999, at 1A. Although the Venetian had not yet

begun hiring staff at the time of the demonstration, it had

assembled an employment package for employees that,

according to the Venetian’s owner, was superior to the Union’s.

Id. It also would shortly begin the hiring process.1

1

The Venetian opened for business in early May of 1999, and

began hiring employees several weeks prior to opening. Record of

Proceedings at 94.

4

The Venetian endeavored to prevent the union

demonstration from taking place on the walkway. Venetian

Casino Resort, LLC, 345 N.L.R.B. No. 82 (2005), 2005 WL

2451997 at *6. A representative of the Venetian met with the

Clark County District Attorney to press the argument that the

Union had no right to use the sidewalk for a demonstration

because it was the Venetian’s property. Record of Proceedings

at 137-40. Prior to that meeting, the District Attorney publicly

stated that the walkway was only “quasi-private” property, and

that it was “unclear” whether the Venetian had the right to block

or remove demonstrators from using it. Adrienne Parker, Bell

Sees Dispute on Venetian Sidewalks Going to Fed Court, LAS

VEGAS SUN, Feb. 25, 1999, at 1A. At the meeting, the District

Attorney explained that his office would not enforce the Nevada

trespass statute against the demonstrators. Record of

Proceedings at 140. In a subsequent conversation with the Las

Vegas Police Department, the Venetian’s representative was told

that the police would not arrest any of the demonstrators for

trespass. Id. at 141.

The demonstration took place on March 1, 1999. The

Venetian marked its property boundaries on the walkway with

bright orange paint and posted signs stating that the walkway

was private property. More than 1,000 demonstrators, many

wearing T-shirts, buttons, and pins with union messages,

marched on the walkway. The demonstrators repeatedly chanted

slogans, including, “Venetian no, Union yes,” “Hey, hey, ho,

ho, Union busting[’]s got to go,” and “Who owns the sidewalk?

Union sidewalk.” Venetian, 2005 WL 2451997, at *6. Some

carried picket signs with the words “UNION RIGHTS/CIVIL

RIGHTS/ONE AND THE SAME” at the top and the bottom and

a photograph of the Venetian’s owner in the middle, under

which was written, “PRIVATE SIDEWALK.” Id. Speeches at

the demonstration addressed the brewing labor dispute between

the Union and the Venetian. Id. One of the speakers declared

5

that the Venetian should be operating the new resort “one

hundred percent Union.” Id. Another complained that the

Venetian would not be giving preferred treatment in its hiring to

former employees of the unionized Sands. Id. Throughout the

demonstration, the Venetian repeatedly played a recorded

message over a public address system that referred to the

demonstrators as “culinary and union workers” and claimed that

they were subject to arrest for trespassing on private property.

Id. at *7. Representatives of the Venetian asked the police to

issue criminal citations to the demonstrators and to block them

from the walkway. Id. Security guards for the Venetian also

told the demonstration’s leader, union agent Glen Arnodo, that

he was being placed under “citizen’s arrest.” Id. The guards did

not attempt to take Arnodo into custody, but the following day,

representatives of the Venetian contacted the police and reported

the “arrest.”2 Id.

Three days after the demonstration, on March 4, 1999,

the Venetian filed a complaint in federal district court seeking

declaratory and injunctive relief against Clark County officials,

the Las Vegas Police Department, and the Union, claiming that

2

Nevada law provides for what is commonly referred to as

a citizen’s arrest:

A private person may arrest another:

1. For a public offense committed or attempted in his

presence.

2. When the person arrested has committed a felony,

although not in his presence.

3. When a felony has been in fact committed, and he

has reasonable cause for believing the person arrested

to have committed it.

NEV. REV. STAT. § 171.126.

6

their conduct converted the Venetian’s private property into a

public forum in violation of the Takings Clause of the Fifth

Amendment. The district court rejected this argument holding

that because the walkway performed an essential public function

the Venetian could not lawfully restrict the demonstrators’

exercise of their First Amendment rights. See Venetian Casino

Resort v. Local Joint Executive Bd., 45 F. Supp. 2d 1027 (D.

Nev. 1999). On appeal, the Ninth Circuit affirmed. See

Venetian Casino Resort v. Local Joint Executive Bd., 257 F.3d

937 (9th Cir. 2001). The Supreme Court denied the Venetian’s

petition for a writ of certiorari. See Venetian Casino Resort v.

Local Joint Executive Bd., 535 U.S. 905 (2002).

On January 23, 2003, the NLRB Regional Director

issued a complaint alleging that the Venetian violated section

8(a)(1) of the Act by (1) summoning the police to cite the

demonstrators for trespass and to block them from the walkway;

(2) playing the trespass warning over a loudspeaker system; and

(3) attempting to place union agent Arnodo under “citizen’s

arrest.”3 Complaint and Notice of Hearing (Jan. 23, 2003). An

administrative law judge (“ALJ”) tried the case on April 3, 2003

and issued a decision on June 12, 2003. The ALJ held that

because the walkway was a public forum and the demonstrators

were engaged in NLRA protected activity, the Venetian

committed an unfair labor practice in violation of the Act when

it interfered with the demonstration. Venetian, 2005 WL

3

Paragraph 5(b)3 of the January 23, 2003, complaint initially

read that the Venetian, “caused to be filed a criminal trespass

complaint against union agent Glen Arnodo.” It was amended at the

hearing before the administrative law judge to read that the Venetian,

“[i]nformed union business agent Glen Arnodo that he was being

placed under citizen’s arrest, and the following day contacted the Las

Vegas Metropolitan Police to make a report of the incident.” Record

of Proceedings at 167.

7

2451997, at *17. The ALJ rejected the Venetian’s argument that

its activities were protected by a First Amendment right to

petition because it found that the Venetian’s conduct was not

“incidental to and inextricably intertwined with its lawsuit.” Id.

at *16. On September 30, 2005, the Board affirmed the ALJ’s

decision. Id. at *1. The Venetian filed a timely petition for

review, and the Board filed a cross-application to enforce its

order.

II.

We will uphold the Board’s decision that the Venetian’s

efforts to disrupt the demonstration were unfair labor practices

if the Board’s factual findings are “supported by substantial

evidence on the record considered as a whole,” 29 U.S.C.

§ 160(e)-(f), and if its interpretation of the Act is “reasonable

and consistent with applicable precedent,” Fashion Valley Mall,

LLC v. NLRB, 451 F.3d 241, 243 (D.C. Cir. 2006). Section

8(a)(1) of the NLRA provides that it is “an unfair labor practice

. . . to interfere with, restrain, or coerce employees in the

exercise of the rights guaranteed in section [7] . . . .” 29 U.S.C.

§ 158(a)(1). Our analysis begins with the question whether the

demonstration was protected by section 7. Affording employees

their section 7 rights is “one of the fundamental purposes of the

Act.” Flamingo Hilton-Laughlin v. NLRB, 148 F.3d 1166, 1170

(D.C. Cir. 1998). Determining what conduct falls within “the

scope of § 7 ‘is for the Board to perform in the first instance as

it considers the wide variety of cases that come before it.’”

NLRB v. City Disposal Sys., Inc., 465 U.S. 822, 829 (1984)

(quoting Eastex, Inc. v. NLRB, 437 U.S. 556, 558 (1978)).

Section 7 provides that “[e]mployees shall have the right

to self-organization, to form, join, or assist labor organizations,

to bargain collectively through representatives of their own

choosing, and to engage in other concerted activities for the

8

purpose of collective bargaining or other mutual aid or

protection . . . .” 29 U.S.C. § 157. 4 In Eastex, Inc. v. NLRB,

437 U.S. 556, 565 (1978), the Supreme Court explained that

section 7 “protect[s] concerted activities for the somewhat

broader purpose of ‘mutual aid or protection’ as well as for the

narrower purposes of ‘self-organization’ and ‘collective

bargaining.’” The Court found that the “mutual aid or

protection” clause extends section 7’s reach to include employee

efforts to “improve terms and conditions of employment or

otherwise improve their lot as employees,” id., but noted that the

scope of the clause is not so broad as to protect a concerted

activity whose relationship to “employees’ interests as

employees” is “so attenuated that [it] cannot fairly be deemed to

come within the ‘mutual aid or protection’ clause.” Id. at 568.

This Court has read that limitation to require the showing of a

“nexus” between the activity and “employees’ interests as

employees.” See Tradesmen Int’l, Inc. v. NLRB, 275 F.3d 1137,

1141 (D.C. Cir. 2002) (noting that “an essential element before

section 7’s protections attach is a nexus between one’s allegedly

protected activity and ‘employees’ interests as employees’”

(quoting Eastex, 437 U.S. at 567)); cf. Petrochem Insulation,

Inc. v. NLRB, 240 F.3d 26, 30 (D.C. Cir. 2001) (a union’s filing

of environmental objections to the applications for zoning and

construction permits made by non-union construction companies

was protected because it was an attempt to force the non-union

4

Section 7 states in full: “Employees shall have the right to

self-organization, to form, join, or assist labor organizations, to

bargain collectively through representatives of their own choosing,

and to engage in other concerted activities for the purpose of collective

bargaining or other mutual aid or protection, and shall also have the

right to refrain from any or all of such activities except to the extent

that such right may be affected by an agreement requiring membership

in a labor organization as a condition of employment as authorized in

section 158(a)(3) of this title.” 29 U.S.C. § 157.

9

employers to conform to area wage and benefit standards, which

would benefit union members by increasing their job

opportunities and improving their bargaining power for higher

wages). The Venetian argues that the required “nexus” between

the demonstration and “employees’ interests as employees” is

not present because the demonstration was not about labor

practices or employment standards, but was only a challenge to

the Venetian’s property rights to the sidewalk. The Venetian

points to press reports that described the demonstration as an

attempt to “take back the sidewalk,” and cites some of the

demonstrators’ handbilling and chants that disputed the

Venetian’s claim to exclusive use of the sidewalk. Petitioner’s

Reply Br. at 12-13.

But both the ALJ and the Board concluded that the

primary focus of the demonstration was in fact, the protection of

employees’ rights. The Board, quoting the ALJ, reasoned as

follows:

“Having been unsuccessful at [obtaining] a

‘neutrality agreement,’5 the Union obviously

decided to take its ‘labor dispute’ directly to

prospective employees and to the general

public.” The “message” it sought to convey to

potential employees . . . was “that the facility

should be operated under a union contract and,

that if hired by the [Venetian], these new

employees should become union members and

5

A “neutrality agreement” is an arrangement between an

employer and a union whereby the “employer agrees that during a

union’s organizational campaign, it will remain neutral and not

express opposition to its employees’ selection of union

representation.” In re Brylane, L.P., 338 N.L.R.B. 538, 540 n.4

(2002).

10

support the Union.” The judge also found that

the Union sought to convey a message to

members of the general public, namely “to

educate them as to the nature of the Union’s

dispute with the [Venetian].”

Venetian, 2005 WL 2451997, at *1 (first alteration in original).

The district court that heard the Venetian’s motion to enjoin

further demonstrations agreed. “On March 1, 1999, Defendants

Local Joint Executive Board of Las Vegas, Culinary Workers

Union, Local No. 226, and Bartenders Union, Local No. 165 . . .

staged a demonstration rally including picketing on the

temporary pedestrian walkway to protest the Venetian’s

employment practices.” Venetian Casino Resort, 45 F. Supp. 2d

at 1029 (emphasis added). Many of the picket signs, the chants,

and the speeches spoke of labor rights and the Union’s demand

that the Venetian hire union employees. Although access to the

walkway was an element of the dispute and one purpose of the

demonstration, we agree with the ALJ and the Board that “the

central message, which members of the public received from the

demonstration, was that there was a ‘labor dispute’ between the

Union and the Venetian.” Venetian, 2005 WL 2451997, at *12.6

Because the demonstration was an effort to

communicate its “labor dispute” to the public and an attempt to

enlist the support of prospective employees in accomplishing its

goal of getting the Venetian to “operate[] on a union basis,”

Venetian, 2005 WL 2451997, at *1 n.4, we conclude that the

6

Communicating a labor grievance to the public is an

effective means of inducing employer action. See generally Local

Union No. 501, Int’l Bhd. of Elec. Workers v. NLRB, 756 F.2d 888,

894-95 (D.C. Cir. 1985) (“Both the Board and the courts have []

recognized that communicating a grievance to members of the public

is an important aspect of area standards picketing.”).

11

connection between the demonstration and “employees’ interests

as employees” was not “so attenuated that [it] cannot fairly be

deemed to come within the ‘mutual aid or protection’ clause” of

section 7.” Eastex, 437 U.S. at 568. In fact, the nexus was clear

and distinct. With the deference we afford the Board in

determining what conduct falls within the scope of section 7, we

hold that it was reasonable for the Board to conclude that the

demonstration was entitled to section 7 protection because it was

an effort to provide for the “mutual aid or protection” of

employees.

Even so, the Venetian argues, section 7 is no help to the

demonstrators because its protection of union activity is “wholly

derivative” of employees’ rights under the statute. Because the

Venetian had yet to hire employees that “the Union was

interested in representing,” Venetian, 2005 WL 2451997, at *11,

there was no one, the argument goes, from whom the

demonstrators could derive section 7 rights.7 Petitioner’s Br. at

30. The Board, however, was not troubled by the fact that the

Venetian had not yet begun hiring employees. Neither are we.

The Venetian reads the scope of section 7 too narrowly. There

is nothing in the language of section 7 that limits its protection

7

The Venetian quotes language from Lechmere, Inc. v. NLRB,

502 U.S. 527 (1992), to suggest (somewhat half-heartedly it seems)

that unions do not enjoy section 7 rights. See Lechmere, 502 U.S. at

532 (“[T]he NLRA confers rights only on employees, not on unions or

their nonemployee organizers.”) (emphasis in original). We faced this

argument in Petrochem, and found that “it would be a curious and

myopic reading of the Act’s core provisions to hold that, although

employees are free to join unions and to work through unions for

purposes of ‘other mutual aid or protection,’ the conduct of the unions

they form and join for those purposes is not protected by the Act.”

240 F.3d at 29 (quotation marks and citation omitted). The Venetian’s

argument that unions do enjoy “derivative” rights concedes as much.

12

to the employees of the targeted employer. In fact, it is well

established that section 7 protects employees other than those of

the targeted employer. See Int’l Alliance of Theatrical & Stage

Employees v. NLRB, 334 F.3d 27, 32 (D.C. Cir. 2003) (“The

Supreme Court and this Court have, consistent with the Act’s

expansive definition covering ‘any employee,’ broadly

interpreted the term ‘employee,’ holding it to include individuals

outside direct employment relationships, such as job applicants

. . . .”). Even though at the time of the demonstration the

Venetian had not yet begun filling jobs the Union had targeted,

it was on the verge of doing so. Record of Proceedings at 94.

The resort would open for business only two months after the

demonstration. Id. Less than one week before the

demonstration, it was reported in the press that the Venetian’s

owner had announced that he had “put together a wage and

benefit package for Venetian employees.” Jeff German,

Sidewalk Showdown Set, LAS VEGAS SUN, Feb. 23, 1999, at 1A.

The Venetian had already begun hiring managerial, clerical, and

security personnel, and would shortly begin filling the remaining

jobs. Record of Proceedings at 94. The “employees” whose

interests the Union was seeking to advance were the prospective

employees who would be seeking those jobs, including the

former Sands workers who wanted “priority hiring rights at the

facility.” Venetian, 2005 WL 2451997, at *2 n.4. Moreover, the

Venetian’s argument is at odds with our opinion in Petrochem

where we found that a union was engaging in protected section

7 activity even though the company it had targeted with its

concerted activity had not begun hiring for the projects on which

the permits were based. 240 F.3d at 30 (“Surely nothing in the

NLRA prevents unions from obtaining commitments from

employers about wages and benefits for future jobs.”).

For its final argument that section 7 does not protect the

demonstrators, the Venetian turns again to language in

Lechmere, Inc. v. NLRB. In Lechmere, the Board concluded

13

that an employer had committed an unfair labor practice by

barring union organizers from handbilling in its parking lot.

502 U.S. at 532-33. The Court reversed the Board and held that

it was not an unfair labor practice for the employer to exclude

nonemployee union organizers from its property “except in the

rare case where the inaccessibility of employees makes

ineffective the reasonable attempts by nonemployees to

communicate with them through the usual channels.” Id. at 537-

38 (emphasis and internal quotations omitted). The Venetian

reads Lechmere to support its argument that its efforts to deny

the union demonstrators access to the sidewalk constituted a

permissible exercise of its own property rights. But Venetian’s

argument misses a fundamental point of Lechmere. Lechmere

allows an employer the right to deny access to its premises only

where it has a property right to do so, and as the Ninth Circuit

held, the Venetian has no property right to the sidewalk that

permits it to prevent people, like the demonstrators here, from

exercising their First Amendment rights by airing to the public

and to prospective employees grievances about the Venetian’s

employment practices. We have seen this issue before and the

Board’s analysis is consistent with our own. In United Food &

Commercial Workers International Union Local 400 v. NLRB,

222 F.3d 1030 (D.C. Cir. 2000), we addressed the question

whether a grocery store was permitted to exclude union

organizers from sidewalks in front of its stores. We adopted the

Board’s reasoning in Indio Grocery Outlet, 323 N.L.R.B. 1138,

1141 (1997), enforced, 187 F.3d 1080 (9th Cir. 1999), that “for

exclusion to be lawful, ‘there is a threshold burden on the

[employer] to establish that it had, at the time it expelled the

Union representatives, an interest which entitled it to exclude

individuals from the property.’” United Food, 222 F.3d at 1034

(quoting Indio, 323 N.L.R.B. at 1141) (internal quotation marks

omitted and emphasis in original). In United Food, the

employer lacked such a property right and we held that its

expulsion of the union representatives from the sidewalks

14

violated their section 7 rights. The case before us is

indistinguishable. The Venetian, like the grocery store chain,

lacks “the requisite property interest” that would permit it to

exclude the union organizers. United Food, 222 F.3d at 1035.

Not surprisingly, the Venetian urges us to disregard the

Ninth Circuit’s holding that the Venetian lacked a property right

in the sidewalk sufficient to permit it to exclude the

demonstrators. Petitioner’s Br. at 40. (“Venetian submits the[]

decision [was] erroneous and should not be followed by this

Court.”). The doctrine of issue preclusion prevents us from

doing so. See Consol. Edison Co. of N.Y. v. Bodman, 449 F.3d

1254, 1257-58 (D.C. Cir. 2006) (“Under the doctrine of issue

preclusion, binding effect is to be given to the first resolution of

an issue.”) (internal quotation marks, alteration and citation

omitted). In Beverly Health & Rehab. Servs. v. NLRB, 317 F.3d

316, 322-23 (D.C. Cir. 2003), we denied a similar request to

disregard a sister circuit’s decision and outlined the familiar and

long-settled standards for determining the preclusive effect of an

earlier holding:

First, the same issue now being raised must have

been contested by the parties and submitted for

judicial determination in the prior case. Second,

the issue must have been actually and necessarily

determined by a court of competent jurisdiction

in that prior case . . . . Third, preclusion in the

second case must not work a basic unfairness to

the party bound by the first determination. An

example of such unfairness would be when the

losing party clearly lacked any incentive to

litigate the point in the first trial, but the stakes

of the second trial are of a vastly greater

magnitude.

15

Id. (citation and quotation omitted). All three requirements are

fully met here. The Ninth Circuit considered the very argument

the Venetian urges us to reconsider here, and clearly and

conclusively rejected it. See Venetian Casino, 257 F.3d at 948.

We can find no basis to conclude that there would be any

unfairness to the Venetian in applying the determination of the

Ninth Circuit. We can discern no difference between the

incentives that the Venetian may have had in its Ninth Circuit

litigation and its incentives here. The stakes in its attempt

before that court were no less than they are now.

The foregoing discussion showing that the demonstrators

were protected by section 7 serves as a lengthy prelude to the

central question of this appeal, which can now be phrased easily

and answered succinctly. Did the Venetian interfere with the

demonstrators’ section 7 rights? Yes. “An employer’s

statement violates the NLRA if, considering the totality of the

circumstances, the statement has a reasonable tendency to coerce

or to interfere with [section 7] rights.” Tasty Baking Co. v.

NLRB, 254 F.3d 114, 124 (D.C. Cir. 2001). We afford the

Board deference in making this determination “recogniz[ing] the

Board’s competence in the first instance to judge the impact of

utterances.” NLRB v. Gissel Packing Co., 395 U.S. 575, 620

(1969). It is not difficult for us to conclude that the Board

reasonably held that the Venetian’s efforts to disrupt the

demonstration were attempts to “interfere with [or] restrain” the

demonstrators’ “exercise” of their section 7 rights. Playing the

trespass warning message and telling union agent Arnodo that

he was under “citizen’s arrest” each “had a reasonable tendency

to . . . interfere” with the demonstration. Unfair labor practices

have been found in similar efforts. See United Food, 222 F.3d

at 1039 (grocery store’s policy barring solicitation on sidewalks

in which it lacked a sufficient property interest to do so violated

the Act); NLRB v. Calkins, 187 F.3d 1080, 1083 (9th Cir. 1999)

(threats to have nonemployee put under “citizen’s arrest” for

16

handbilling and picketing violated section 8(a)(1)); Wild Oats

Markets, Inc., 336 N.L.R.B. 179, 181 (2001) (“It is beyond cavil

that had the Respondent directly ordered the union

representatives to cease picketing and vacate the premises . . .

the Respondent would have engaged in unlawful interference

with Section 7 rights.”); D’Alessandro’s, Inc., 292 N.L.R.B. 81

(1988) (employer violated section 8(a)(1) by threatening arrest

and posting a sign on its premises disallowing pickets). We

decline, however, to decide whether the Venetian’s summoning

of the police violated section 8(a)(1). As we discuss next, the

Venetian has argued that summoning the police was directly

petitioning government and therefore protected activity.

Because the Board did not address this argument, we cannot

conclude that it was a violation of section 8(a)(1) without

knowing the Board’s reasoning.

Finally, we turn to the Venetian’s argument that the

Supreme Court’s Noerr-Pennington doctrine should be extended

to create a safe harbor for its actions. The doctrine provides that

in certain contexts otherwise illegal conduct—such as concerted

activity among business competitors—is protected by the First

Amendment when it is part of a direct petition to government or

“incidental” to a direct petition. The Supreme Court created the

doctrine in the context of antitrust law. In Eastern Railroad

Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S.

127, 136-38 (1961), the Supreme Court held that collaboration

among railroad companies lobbying for legislation that would

limit competition in the trucking industry did not violate

antitrust laws because it was part of an exercise of their First

Amendment right to petition the government. In United Mine

Workers of America v. Pennington, 381 U.S. 657, 669-70

(1965), the Court held that the First Amendment protected mine

operators and workers from antitrust laws when they

collaborated to petition the Tennessee Valley Authority to

increase minimum wages. The First Amendment protection was

17

not diminished in that case, even though the mine operators’

purpose was to reduce competition by forcing smaller

competitors out of business because they could not afford to pay

higher wages. The Noerr-Pennington doctrine has since been

used to “insulate[] from antitrust challenge competitors’ decision

to combine to petition the government, even if their underlying

intention is to restrain competition or gain advantage over

competitors.” Andrx Pharms., Inc. v. Biovail Corp. Int’l, 256

F.3d 799, 817 (D.C. Cir. 2001).

Central to the Venetian’s argument here is the fact that

the Court has not limited Noerr-Pennington immunity to the

direct petitioning of government. Included within its ambit is

conduct “‘incidental’ to a valid effort to influence governmental

action.” Allied Tube & Conduit Corp. v. Indian Head, Inc., 486

U.S. 492, 499 (1988) (quoting Noerr, 365 U.S. at 143).

Noerr itself immunized from Sherman Act liability activity that

was not direct government petitioning. The protected activity in

Noerr was the railroad industry’s “publicity campaign” against

the trucking industry that included “[c]irculars, speeches,

newspaper articles, editorials, magazine articles, memoranda and

. . . other documents.” Noerr, 365 U.S. at 142.

Recognizing the importance of identifying articulable

limits on the reach of the immunity created by Noerr-

Pennington, the Court in Allied Tube attempted to explain the

scope of protected “incidental” activity. Allied Tube involved

the efforts of the Nation’s largest steel electrical conduit

manufacturer to influence a decision of the National Fire

Protection Association (“NFPA”), a private, voluntary

organization that promulgates the National Electric Code, which

is routinely adopted by “[a] substantial number of state and local

governments . . . with little or no change,” Allied Tube, 486 U.S.

at 495. The steel conduit manufacturer recruited individuals to

join the NFPA who would vote against a competitor’s proposal

18

to amend the code. The proposal was rejected, and the

competitor brought suit alleging violation of the Sherman Act.

Id. at 497. The steel conduit manufacturer defended by arguing

that “because state and local governments rely so heavily on the

Code and lack the resources or technical expertise to second-

guess it, efforts to influence the [NFPA’s] standard-setting

process” were “incidental” to direct petitions of state and local

governments. Id. at 502. In rejecting the steel conduit

manufacturer’s “absolutist position that the Noerr doctrine

immunizes every concerted effort that is genuinely intended to

influence governmental action,” id. at 503, the Court explained

that “incidental” activity is not protected by Noerr-Pennington

if its “context and nature . . . make it the type of commercial

activity that has traditionally had its validity determined by the

antitrust laws themselves.” Id. at 505. The Court found that

given the “context and nature” of the steel conduit

manufacturer’s activity, it was “more aptly [] characterized as

commercial activity with a political impact” that resembled

conduct “normally held violative of the Sherman Act,” and was

therefore not entitled to Noerr-Pennington immunity. Id. at 507.

The Venetian urges us to extend Noerr-Pennington’s

protection of “incidental” conduct to what it describes as its

“pre-litigation activities,” i.e., broadcasting the trespass message

and attempting to make the “citizen’s arrest.”8 It argues that this

conduct was “incidental to and inextricably intertwined” with its

lawsuit, which was, without question, a valid government

petition. See Cal. Motor Transp. Co. v. Trucking Unlimited, 404

U.S. 508, 510 (1972) (“The right of access to the courts is

indeed but one aspect of the right of petition.”). In this respect,

the Venetian asks us to follow the example of the Ninth Circuit,

8

The Venetian argues that its summoning of the police was

direct petitioning activity.

19

which recently applied Noerr-Pennington’s protection of

“incidental” activity to shield a company’s pre-litigation

settlement demand letters from RICO liability. See Sosa v.

DIRECTV, Inc., 437 F.3d 923 (9th Cir. 2006). The Supreme

Court has extended Noerr-Pennington immunity into labor law

only to protect direct petitioning, i.e., employer lawsuits, see Bill

Johnson’s Rests. v. NLRB, 461 U.S. 731 (1983); BE & K Constr.

Co. v. NLRB, 536 U.S. 516 (2002); it has yet to do so in labor

law for “incidental” conduct. We do not decide this question,

however, because of the Venetian’s inability to show that its

conduct was in fact “incidental” to its lawsuit under the holding

of Allied Tube.

To determine whether the Venetian’s pre-litigation

activities are protected as “incidental” conduct, we look to the

“context and nature of [the] activity” to determine whether it is

the type of activity “that has traditionally had its validity

determined by the [NLRA itself].” Allied Tube, 486 U.S. at 505.

The proper inquiry is whether the conduct can be characterized

as typical “pre-litigation” activity, or is “more aptly []

characterized as [NLRA] activity” that happens to have an

impact on litigation. Id. at 507. So stated, this is not a close

call. The Venetian claims that its actions were “necessary

prerequisite[s] to establishing the elements for injunctive relief,”

but cites to no case or statute that supports that contention. At

oral argument, the Venetian’s counsel made the claim that under

the Nevada trespass statute, the property owner must give notice

to the trespasser in order to establish a trespass claim. Although

that may be true, it is irrelevant to this case because the Venetian

never filed a trespass lawsuit. Its lawsuit sought an injunction

and declaratory judgment—forward-looking relief. There is no

evidence that this conduct is customary “pre-litigation” activity.

However, this type of conduct has long been held to be governed

by the NLRA. The “context and nature” of the Venetian’s

conduct shares more with the line of section 7 cases we have

20

cited, see cases cited supra p. 16, than it does with “pre-

litigation” activity. It is worth noting what the Venetian asks us

to do by expanding the scope of Noerr-Pennington immunity in

labor law. Unlike many other contexts, expanding First

Amendment protection in labor law for an employer’s arguably

expressive conduct may result in constricting the scope of

employees’ expressive activity protected by section 7. That is

one reason why, as Allied Tube is so careful to point out, context

matters when a party urges the expansion of Noerr-Pennington.

See Allied Tube, 486 U.S. at 503-04 (citing a long list of

prohibited antitrust conduct that would be protected if the Court

accepted “petitioner’s absolutist position that the Noerr doctrine

immunizes every concerted effort that is genuinely intended to

influence governmental action”). Were we to interpret

Noerr-Pennington to protect an employer’s conduct that has as

little connection to actual petitioning activity as the Venetian’s,

we would effectively eviscerate the fundamental protection

section 7 seeks to provide for expressive activities by labor

unions.

The Venetian’s reliance on the Ninth Circuit’s opinion

in Sosa v. DIRECTV, Inc., 437 F.3d 923 (9th Cir. 2006), is

unavailing. The Sosa court held that a satellite television

company was immune from liability under RICO for sending

letters to individuals who had improperly tapped into its

satellite signal. The letters demanded payment and threatened

litigation in response to noncompliance. The court held this to

be pre-litigation activity within the scope of the protection

afforded by the Noerr-Pennington doctrine. 437 F.3d at 942.

The Ninth Circuit had held that “in the litigation context, not

only petitions sent directly to the court in the course of litigation,

but also ‘conduct incidental to the prosecution of the suit’ is

protected by the Noerr-Pennington doctrine,” id. at 934 (quoting

Columbia Pictures Indus., Inc. v. Prof’l Real Estate Investors,

Inc., 944 F.2d 1525, 1528-29 (9th Cir. 1991)). That principle,

21

however, had been limited specifically to antitrust cases, id. at

937, and protected “incidental” conduct only “so long as [it was]

sufficiently related to petitioning activity,” id. at 935. In

extending the doctrine to protect pre-litigation activities outside

of the antitrust context, the Sosa court closely examined the

relation between the “incidental” action—the demand

letters—and the lawsuit, which was a lawful direct petition to

the government. It determined that “the connection between

presuit demand letters and access to the courts is sufficiently

close” to apply Noerr-Pennington immunity. Id. at 936.

But Sosa is of no help to the Venetian. The holding there

was limited to a narrow category of “incidental” activity:

“[p]relitigation communication[] demanding settlement,” that

the court found had a “sufficiently close” connection to the

lawsuit. Id. The Sosa court cited several reasons in support of

this determination. The first two are telling. “First, preceding

the formal filing of litigation with an invitation to engage in

negotiations to settle legal claims is a common, if not universal,

feature of modern litigation . . . . Second, many states, including

California, protect prelitigation communications under

statutorily granted litigation privileges.” Id. By contrast,

broadcasting the trespass warning message and making the

“citizen’s arrest” have nothing at all to do with the right to

“access [] the courts.” They are neither common features of

litigation nor statutorily protected litigation privileges. Even

were we to adopt the reasoning of the Sosa court as the Venetian

urges, its argument would still fail because it cannot show that

its “pre-litigation” activities are “sufficiently close” to its

lawsuit.

Of the three activities the Board determined were unfair

labor practices—summoning the police, broadcasting the

trespass message, and attempting to effect a “citizen’s

arrest”—we conclude that broadcasting the trespass warning

22

message and trying to effect the “citizen’s arrest” are not

protected by the Noerr-Pennington doctrine. Venetian has

failed to show that these activities were in any sense

prerequisites to its lawsuit. Regarding the summoning of the

police, the Venetian argues that was a direct effort to “influence

. . . law enforcement practices,” Petitioner’s Br. at 24 (quoting

Noerr, 365 U.S. at 144), and is therefore protected activity under

the First Amendment. Because the Board did not address this

argument in reaching its conclusion, we remand that issue for

the Board’s consideration.

III.

We deny the Venetian’s petition for review and grant the

Board’s cross-application to enforce its order in all respects

except on the issue whether summoning the police was protected

by the Noerr-Pennington doctrine. We remand that issue to the

Board.

So ordered.