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

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 17, 2015 Decided July 10, 2015

No. 12-1021

VENETIAN CASINO RESORT, L.L.C.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 12-1076

On Petition for Review and Cross-Application for

Enforcement of an Order of

the National Labor Relations Board

John J. Manier and Matthew T. Wakefield argued the

causes for petitioner. With John J. Manier on the briefs were

Frederick H. Kraus and Richard S. Rosenberg.

Kellie Isbell, Attorney, National Labor Relations Board,

argued the cause for respondent. With her on the brief were

John H. Ferguson, Associate General Counsel, Linda

Dreeben, Deputy Associate General Counsel, and Ruth E.

Burdick, Supervisory Attorney. Kira D. Vol, Attorney,

entered an appearance.

2

Before: BROWN, KAVANAUGH, and WILKINS, Circuit

Judges.

Opinion for the Court filed by Circuit Judge

KAVANAUGH.

KAVANAUGH, Circuit Judge: During a union

demonstration in front of the Venetian Casino Resort, the

Venetian requested that police officers at the scene issue

criminal citations to the demonstrators and block them from

the walkway because they were allegedly trespassing upon

private property belonging to the Venetian. The National

Labor Relations Board later determined that the Venetian had

thereby committed an unfair labor practice in violation of the

National Labor Relations Act.

The Venetian argues that the Noerr-Pennington doctrine

immunizes it from liability under the Act. The Noerr-

Pennington doctrine originated in the antitrust context but has

also been applied in labor cases. Under that doctrine, conduct

that constitutes a direct petition to government, but would

otherwise violate the Act, is shielded from liability by the

First Amendment. We agree with the Venetian that its

request to the police was covered by the Noerr-Pennington

doctrine. We therefore grant the Venetian’s petition for

review, deny the Board’s cross-application to enforce its

order, and vacate the Board’s order. That said, the Noerr-

Pennington doctrine has an exception for sham petitions.

Because the Board failed to address whether the Venetian’s

petition was a sham, we remand so that the Board may

consider that question in the first instance.

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I

In 1999, the Venetian, a luxury hotel and casino complex,

opened on the famed Las Vegas Strip. A traffic impact study

commissioned by the Venetian’s developers indicated that the

new complex would worsen vehicular traffic on the Strip.

Clark County, the Nevada county in which Las Vegas is

located, therefore expanded the Strip by one lane. The

expansion displaced a public sidewalk that had previously run

along the front of the Venetian’s property. In exchange, the

Venetian agreed to build a replacement sidewalk, running

parallel to the Strip, on its property. In February 1999, the

Venetian built a temporary walkway in the agreed-upon

location.

Also in February 1999, an ongoing battle between the

Venetian and two labor unions came to a head. The Nevada

Department of Transportation issued the unions a permit to

hold a demonstration against the Venetian on the temporary

walkway and on one lane of the Strip.

The Venetian strenuously objected to the proposed

location of the demonstration. A representative of the

Venetian spoke with the Clark County District Attorney. The

Venetian took the position that the temporary walkway was

its private property and that the unions therefore had no right

to demonstrate there. The District Attorney responded that he

would not enforce Nevada’s trespass law against the

demonstrators. The Venetian’s representative then met with

police department officials. Those officials explained that

police officers would attend the demonstration to protect

public safety but would not arrest the demonstrators for

trespass.

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On the day of the demonstration, the Venetian took

several additional measures to protect its alleged property

rights. The Venetian marked its property boundaries with

orange paint and posted signs indicating that the temporary

walkway was private property. As over 1,000 demonstrators

marched on the walkway, the Venetian played a recorded

message over a public address system. The message stated

that the demonstrators were subject to arrest for trespass. The

Venetian’s security guards placed the demonstration’s leader

under citizen’s arrest. And importantly for purposes of this

case, the Venetian asked police officers at the demonstration

to issue criminal citations to the demonstrators and to block

them from the temporary walkway.

Soon thereafter, the Venetian filed suit for injunctive and

declaratory relief against the unions and various government

entities. See Venetian Casino Resort, LLC v. Local Joint

Executive Board of Las Vegas, 257 F.3d 937, 939 (9th Cir.

2001), cert. denied, 535 U.S. 905 (2002). The Ninth Circuit

ultimately held that the temporary walkway was a public

forum subject to First Amendment protections and that the

Venetian had no right to impede public access to the

walkway. See id. at 946, 948.

The unions, in turn, filed unfair labor practice complaints

against the Venetian with the Board. An administrative law

judge found that the demonstration was protected activity

under Section 7 of the National Labor Relations Act. See

Venetian Casino Resort, LLC, 345 N.L.R.B. 1061, 1061

(2005). 1 The ALJ concluded that the Venetian had committed

1

Under Section 7 of the Act, employees 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.” 29 U.S.C.

5

unfair labor practices under Section 8(a)(1) of the Act by

interfering with the demonstration. See id. The Board, in its

2005 Decision and Order, affirmed the ALJ’s decision. See

id.

On appeal, we affirmed the Board’s 2005 Decision and

Order on all but one issue. See Venetian Casino Resort, LLC

v. NLRB, 484 F.3d 601, 603 (D.C. Cir. 2007). We agreed that

the union demonstration was protected activity under Section

7. Id. at 607-08. The Venetian argued, however, that its

conduct during the demonstration was an exercise of its First

Amendment right to petition the government. See id. at 611.

We rejected that theory with respect to two aspects of the

Venetian’s conduct: its broadcast of an anti-trespass message

and its attempted citizen’s arrest. See id. at 614. We

therefore affirmed the Board’s conclusion that the Venetian

had violated Section 8(a)(1) by engaging in those activities.

See id.

By contrast, we did not decide whether a third aspect of

the Venetian’s conduct – its request that the police officers at

the demonstration issue criminal citations to the

demonstrators and block them from the walkway – was a

protected petition because the Board had not previously

addressed that question. See id. at 610, 614. We therefore

remanded that question to the Board for consideration in the

first instance. Id. at 614.

On remand, the Board issued its 2011 Decision and

Order. Venetian Casino Resort, LLC, 357 N.L.R.B. No. 147

§ 157. Section 8(a)(1) of the Act makes it an “unfair labor practice

for an employer . . . to interfere with, restrain, or coerce employees

in the exercise of the rights guaranteed in” Section 7. 29 U.S.C.

§ 158.

6

(Dec. 21, 2011). The Board surveyed the case law and

determined that only “petitions that seek the passage of a law

or rule, or a significant policy decision regarding

enforcement,” are entitled to protection under the Noerr-

Pennington doctrine. Id. at 3. Applying that standard, the

Board found that the Venetian’s conduct was not a direct

petition to government protected by the Noerr-Pennington

doctrine. See id. at 3-4. The Board concluded that the

Venetian had committed an unfair labor practice in violation

of Section 8(a)(1). See id.

The Venetian petitioned this Court for review of the 2011

Decision and Order. The Board cross-applied for

enforcement of the 2011 Decision and Order.

II

We review the Board’s resolution of constitutional

questions de novo. See J.J. Cassone Bakery, Inc. v. NLRB,

554 F.3d 1041, 1044 (D.C. Cir. 2009). Here, we conclude

that the Board erred in its Noerr-Pennington analysis. The

Venetian’s request that the police officers at the

demonstration issue criminal citations to the demonstrators

and block them from the walkway qualifies as a direct petition

to government.

A

The First Amendment’s Petition Clause protects “the

right of the people . . . to petition the Government for a

redress of grievances.” U.S. Const. amend. I; see generally

Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2498-2500,

slip op. at 13-17 (2011) (summarizing scope and history of

Petition Clause). When “a person petitions the government”

in good faith, “the First Amendment prohibits any sanction on

7

that action.” Nader v. Democratic National Committee, 567

F.3d 692, 696 (D.C. Cir. 2009).

The Noerr-Pennington doctrine implements that general

principle. Under the Noerr-Pennington doctrine as it applies

in the labor law context, employer conduct that would

otherwise be illegal may be “protected by the First

Amendment when it is part of a direct petition to

government.” Venetian Casino Resort, LLC v. NLRB, 484

F.3d 601, 611 (D.C. Cir. 2007); see generally BE&K

Construction Co. v. NLRB, 536 U.S. 516 (2002); Bill

Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983);

United Mine Workers of America v. Pennington, 381 U.S. 657

(1965); Eastern Railroad Presidents Conference v. Noerr

Motor Freight, Inc., 365 U.S. 127 (1961).

What constitutes a direct petition to government? As a

starting point, a petition “conveys the special concerns of its

author to the government and, in its usual form, requests

action by the government to address those concerns.”

Guarnieri, 131 S. Ct. at 2495, slip op. at 7-8. In modern

usage, “to petition” means to “make a request or supplication

to,” Oxford English Dictionary (3rd ed. 2005), and the term

has had that meaning since before the Founding. See

Guarnieri, 131 S. Ct. at 2499, slip op. at 14 (“[T]he Petition

of Right of 1628 drew upon centuries of tradition and Magna

Carta as a model for the Parliament to issue a plea, or even a

demand, that the Crown refrain from certain actions.”). The

Supreme Court has specified that, for purposes of the Noerr-

Pennington doctrine, parties exercise their right to petition

when they “advocate their causes and points of view

respecting resolution of their business and economic

interests,” California Motor Transport Co. v. Trucking

Unlimited, 404 U.S. 508, 511 (1972), or attempt to “influence

the passage or enforcement of laws,” Noerr, 365 U.S. at 135.

8

Whether conduct constitutes protected petitioning activity

“depends not only on its impact, but also on the context and

nature of the activity.” Allied Tube & Conduit Corp. v. Indian

Head, Inc., 486 U.S. 492, 504 (1988).

Applying those principles, we conclude 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.

Requesting police enforcement of state trespass law is an

attempt to persuade the local government to take particular

action with respect to a law. As we see it, that fits squarely

within the traditional mold of a petition to government

protected by the Noerr-Pennington doctrine.

As the Supreme Court has stated, the Noerr-Pennington

doctrine protects petitions directed at “all departments of the

Government.” California Motor Transport Co., 404 U.S. at

510. And as the Ninth Circuit has persuasively explained, the

interests embodied by the Petition Clause are “served by

ensuring the free flow of information to the police.” Forro

Precision, Inc. v. International Business Machines Corp., 673

F.2d 1045, 1060 (9th Cir. 1982). It “would be difficult indeed

for law enforcement authorities to discharge their duties if

citizens were in any way discouraged from providing

information.” Id. Those considerations support applying the

Noerr-Pennington doctrine “to citizen communications with

police.” Id.; see Ottensmeyer v. Chesapeake & Potomac

Telephone Co. of Maryland, 756 F.2d 986, 993-94 (4th Cir.

1985).

The Board offers a few responses, but none is persuasive.

9

The Board contends that Noerr-Pennington immunity

applies primarily to petitions made to public officials in

service of high-level political or policy-oriented aims. See

Board Br. at 21 (doctrine applies to “efforts to influence the

passage or enforcement of laws or a significant policy

decision”); see also id. at 23 (“political activity designed to

‘influence public officials’” is typically “immune under

Noerr-Pennington”); Venetian Casino Resort, LLC, 357

N.L.R.B. No. 147, at 3 (Dec. 21, 2011) (Noerr-Pennington

doctrine protects “petitions that seek the passage of a law or

rule, or a significant policy decision regarding enforcement”).

By that standard, according to the Board, a property owner’s

request that police officers on the beat enforce private

property rights does not count as a petition to government for

purposes of the Noerr-Pennington doctrine.

The primary authority cited by the Board is the Supreme

Court’s decision in Allied Tube. That antitrust case involved

the standard-setting process of a private organization (the

National Fire Protection Association), whose standards were

in turn frequently adopted by state and local governments.

486 U.S. at 495. Several members of the organization

colluded to manipulate the organization into setting favorable

standards that restrained competition. See id. at 496-97. The

Court held that such collusion did not constitute either a direct

petition to government or conduct incidental to a petition. Id.

at 501-02, 504-07. The Court therefore concluded that the

Noerr-Pennington doctrine did not immunize the colluding

members from antitrust liability. See id. at 509-10.

As support for its theory, the Board picks up on the

Court’s explanation in Allied Tube that the alleged petitioning

activity was not an “effort[] to persuade an independent

decisionmaker.” Id. at 507. But that statement simply

explains why collusion to manipulate a private organization

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into excluding competition is classic anti-competitive

commercial activity, and not conduct incidental to a petition.

See id. Nowhere in its opinion does the Supreme Court

suggest that everyday attempts to influence government

action – say, by summoning the police – are excluded from

the Noerr-Pennington doctrine’s ambit.

The Board also points to Sure-Tan, Inc. v. NLRB as

evidence that reports of legal violations are not necessarily

petitions to government within the scope of the Noerr-

Pennington doctrine. In Sure-Tan, an employer embroiled in

a labor dispute reported some of its employees to the

Immigration and Naturalization Service in retaliation for their

union activity. See 467 U.S. 883, 886 (1984). The Board

concluded that the employer had committed an unfair labor

practice. See id. at 888. Reviewing that decision, the

Supreme Court held that the employer’s request for

enforcement of federal immigration laws was not an exercise

of its First Amendment petitioning right. See id. at 897. The

Court reasoned that the employer “did not invoke the INS

administrative process in order to seek the redress of any

wrongs committed against them. Indeed, private persons”

have “no judicially cognizable interest in procuring

enforcement of the immigration laws by the INS.” Id.

(citation omitted).

Sure-Tan offers no support for – and indeed contradicts –

the Board’s position. Where employers assert a private

property right and ask the police to enforce that right against

demonstrators, employers are seeking “redress of . . . wrongs

committed against them,” to use Sure-Tan’s words. Id.

In short, the Board erred when it determined that the

Venetian’s request that the police issue criminal citations to

the demonstrators and block them from the walkway did not

11

qualify as a direct petition to government protected by the

Noerr-Pennington doctrine.

B

That said, the Noerr-Pennington doctrine “does not cover

activity that was not genuinely intended to influence

government action.” United States v. Philip Morris USA Inc.,

566 F.3d 1095, 1123 (D.C. Cir. 2009) (quoting Allied Tube,

486 U.S. at 508 n.10) (internal quotation marks omitted). In

other words, while “genuine petitioning is immune from”

Section 8(a)(1) liability under the Noerr-Pennington doctrine,

“sham petitioning is not.” BE&K Construction Co., 536 U.S.

at 526. A petition is a sham if it is “objectively baseless” and

is “brought with the specific intent to further wrongful

conduct through the use of governmental process.” Nader,

567 F.3d at 696 (internal quotation marks omitted); cf. Octane

Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749,

1757, slip op. at 9-10 (2014).

The Venetian, of course, contends that its request for

assistance from the police officers at the scene was a valid

attempt to secure its private property rights.

We will not reach that issue at this time. In its 2011

Decision and Order, the Board never addressed whether the

Venetian’s attempt to summon the police constituted a sham

petition. See Venetian Casino Resort, 357 N.L.R.B., at 3

n.11. Contrary to the Venetian’s claim, the Board did not

waive reliance on the sham exception; it never had occasion

to reach the sham exception given its conclusion that the

Noerr-Pennington doctrine did not apply in the first place.

We will therefore remand that issue for the Board’s

consideration in the first instance.

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III

The Board’s 2005 Decision and Order instructed the

Venetian to post a remedial notice “in conspicuous places

including all places where notices to employees are

customarily posted.” Venetian Casino Resort, LLC, 345

N.L.R.B. 1061, 1070 (2005). The Board’s 2011 Decision and

Order also contained a remedial notice requirement, but with

modified terms. Venetian Casino Resort, LLC, 357 N.L.R.B.

No. 147, at 4-5 (Dec. 21, 2011). The 2011 Decision and

Order specified that, in “addition to physical posting of paper

notices, notices shall be distributed electronically, such as by

email, posting on an intranet or an internet site, and/or other

electronic means, if the Respondent customarily

communicates with its employees by such means.” Id.

The Venetian argues that the 2011 Decision and Order’s

electronic posting requirement was arbitrary and capricious,

an abuse of discretion, and in excess of the Board’s authority

on remand. But we have already determined that we must

vacate the Board’s 2011 Decision and Order and remand this

case to the Board for further proceedings. As a result, we

need not decide whether the Board erred by imposing an

electronic posting requirement in the 2011 Decision and

Order.

***

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

Board’s cross-application to enforce its order, and vacate the

Board’s order. Because the Board did not address whether

the Venetian’s petition was a sham, we remand so that the

Board may consider that question in the first instance.

So ordered.