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.