Venetian Casino Resort, LLC

National Labor Relations Board - Board Decisions

Apr 29, 2009

354 N.L.R.B. 120 (N.L.R.B. 2009)

354 NLRB No. 9
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Venetian Casino Resort, LLC and Local Joint Execu-
tive Board of Las Vegas, Culinary Workers Un-
ion, Local 226 and Bartenders Union, Local 165,
affiliated with Hotel Employees and Restaurant
Employees International Union. Case 28–CA–
16000
April 29, 2009
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On September 30, 2005, the National Labor Relations
Board, by a three-member panel, issued a Decision and
Order1 in this proceeding, in which it adopted all of the
administrative law judge’s findings. The judge had
found that the Respondent violated Section 8(a)(1) of the
Act by: (1) summoning the Las Vegas Metropolitan Po-
lice and requesting that they issue trespass citations to
peaceful union demonstrators and exclude them from the
sidewalk in front of the Respondent’s facility; (2) repeat-
edly informing the demonstrators, via a recorded mes-
sage broadcast over a public address system, that they
were subject to arrest for trespassing on private property;
and (3) informing Union Business Agent Glen Arnodo, a
participant in the demonstration, that he was being
placed under citizen’s arrest, and the following day con-
tacting the police to report the incident. The Board or-
dered the Respondent to cease and desist from this activ-
ity and to take certain affirmative action.
Thereafter, the Respondent filed a petition for review
with the United States Court of Appeals for the District
of Columbia Circuit, and the Board filed a cross-
application for enforcement of its Order. The court en-
forced the portions of the Board’s Order addressing the
broadcasting of the trespass message and the attempt to
effect a citizen’s arrest. The court, however, held that the
Board had failed to consider the Respondent’s conten-
tion, in defense of its summoning the police, that its con-
duct constituted direct petitioning of the Government,
and as such was protected by the First Amendment. The
court remanded that issue to the Board.2 Subsequently,
the General Counsel, the Charging Party, and the Re-
spondent filed statements of position.

1 345 NLRB 1061.
2 484 F.3d 601, 610, and 614 (2007), cert. denied 128 S.Ct. 1647
(2008).
The National Labor Relations Board3 has reconsidered
the remanded finding. Based on the particular circum-
stances of this case, we have decided to withdraw the
finding, and we therefore respectfully decline to resolve
the issues it presents.
The central events underlying this case occurred on
March 1, 1999, a little more than 10 years ago. Those
events and the controversies leading up to them have
now been considered, not only in this proceeding, but in
Federal civil litigation between the Respondent and the
Union culminating in a decision of the United States
Court of Appeals for the Ninth Circuit and the Supreme
Court’s denial of the Respondent’s request for certiorari.4
Under the unusual circumstances of this case, we do
not believe that it would be a good use of the Board’s
limited resources to determine the lawfulness of the Re-
spondent’s call to the police and requests for action.
Determining their legality would require the Board to
decide difficult legal issues not previously decided by the
Board or the courts, and in circumstances where the em-
ployees’ Section 7 rights have been effectively vindi-
cated.5
It will more fully effectuate the policies of the Act to
require the Respondent to comply immediately with the
enforced provisions of the Order in this case. By requir-
ing the Respondent to cease and desist from playing a
trespass message directed at peaceful union demonstra-
tors, and to cease and desist from informing them that
they are being placed under citizen’s arrest, or engaging
in any like or related conduct that interferes with Section
7 rights, we substantially affirm the rights of individuals
to engage in Section 7 activities on the sidewalk in front
of the Respondent’s facility. That is particularly true
here because, in non-Board litigation, the courts have
resolved the property rights issue and found that the
sidewalk in front of the Respondent’s facility is a “public
forum” from which the Respondent may not exclude
individuals engaged in permissible exercises of their

3 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh. Pursuant to this delegation, Chairman Liebman and
Member Schaumber constitute a quorum of the three-member group.
As a quorum, they have the authority to issue decisions and orders in
unfair labor practice and representation cases. See Sec. 3(b) of the Act.
4 See Venetian Casino Resort v. Local Joint Executive Board., 257
F.3d 937 (2001), cert. denied 535 U.S. 905 (2002). In its decision, the
Ninth Circuit upheld the determination of the district court that the
sidewalk alongside the Respondent’s property is a “public forum,” from
which the Respondent may not exclude individuals engaged in expres-
sive activity protected by the First Amendment. Id. at 940, 948.
5 See Harrison Steel Castings Co., 293 NLRB 1158, 1159 (1989),
pet. for review dismissed 923 F.2d 542 (7th Cir. 1991).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
right to expression under the First Amendment. Venetian
Casino Resort v. Local Joint Executive Board., 45
F.Supp.2d 1027, 1036 (D.Nev. 1999), affd. 257 F.3d 937
(9th Cir. 2001), cert. denied 535 U.S. 905 (2002). The
ruling and Order we issue today are sufficient to protect
the Section 7 rights implicated in this case. We therefore
withdraw the finding that the Respondent violated Sec-
tion 8(a)(1) by summoning the police.
We will modify the Board’s original order in confor-
mity with this decision.
ORDER
The Board’s Order, reported in 345 NLRB 1061
(2005), is reaffirmed as modified below.
1. Delete paragraph 1(a) and reletter the subsequent
paragraphs.
2. Substitute the attached notice for that attached to
the Board’s original Decision and Order.
Dated, Washington, D.C. April 29, 2009
______________________________________
Wilma B. Liebman, Chairman
______________________________________
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT do anything that interferes with these
rights.
Specifically:
WE WILL NOT read or play a recording of a trespass
message over a loudspeaker directed to individuals who
are peacefully demonstrating and engaging in lawful
conduct on behalf of the Union, or any other labor or-
ganization, on the sidewalk in front of our property ad-
joining Las Vegas Boulevard South, Las Vegas, Nevada.
WE WILL NOT place agents of the Union, or any other
individuals, who are engaged in a peaceful demonstration
and lawful conduct on behalf of the Union, or any other
labor organization, on the sidewalk in front of our prop-
erty adjoining Las Vegas Boulevard South, Las Vegas,
Nevada, under citizen’s arrest, or contact the Las Vegas
Metropolitan Police Department to report the incident.
WE WILL NOT in any similar manner interfere with, re-
strain, or coerce individuals in the exercise of the rights
guaranteed them by Section 7 of the Act.
VENETIAN CASINO RESORT, LLC