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.
 3
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.
 4
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
 10
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.
 12
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.