Venetian Casino Resort, LLC

National Labor Relations Board - Board Decisions

Feb 5, 2018

366 NLRB No. 14 (N.L.R.B. 2018)

366 NLRB No. 14
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–
016000
February 5, 2018
THIRD SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN KAPLAN AND MEMBERS PEARCE
AND MCFERRAN
This case is before us once again on remand from the
United States Court of Appeals for the District of Co-
lumbia Circuit to determine whether the Respondent vio-
lated Section 8(a)(1) of the National Labor Relations Act
when it summoned police officers to remove individuals
engaged in a peaceful union demonstration from a side-
walk situated on the Respondent’s property.
This is the third time the National Labor Relations
Board has addressed this issue. In its first decision, is-
sued in 2005, the Board found three alleged Section
8(a)(1) violations, based on the protected character of the
union demonstration under Section 7 of the Act and a
Ninth Circuit decision finding the sidewalk where the
demonstration took place to be “‘a public forum subject
to the protections of the First Amendment.’” 345 NLRB
1061, 1061 (2005) (quoting Venetian Casino Resort v.
Local Joint Executive Board of Las Vegas, 257 F.3d 937,
948 (9th Cir. 2001), cert. denied 535 U.S. 905 (2002)).
Specifically, the Board found that the Respondent violat-
ed the Act by (1) summoning the police to cite the de-
monstrators for trespass and to block them from the
walkway; (2) playing a trespass warning over a loud-
speaker system; and (3) attempting to place union agent
Arnodo under “citizen's arrest.” The Respondent filed a
petition for review in the District of Columbia Circuit,
and on May 8, 2007, that court issued its first decision in
this case. See Venetian Casino Resort, LLC v. NLRB,
484 F.3d 601 (D.C. Cir. 2007), cert. denied 552 U.S.
1257 (2008). The court upheld the Board’s determina-
tion that the demonstrators were engaged in Section 7
activity and that the Respondent’s actions in playing the
trespass warning and attempting a “citizen's arrest” were
unlawful. The court also agreed with the Board that
summoning the police to remove the demonstrators inter-
fered with their Section 7 rights. Id. at 610. The court
remanded the case to the Board, however, to determine
whether the Respondent’s summoning of the police, alt-
hough otherwise unlawful, was protected by the First
Amendment under the Noerr-Pennington doctrine.1 Id.
at 614. The Respondent subsequently complied fully
with notice-posting requirements for the two actions
found unlawful.
On December 21, 2011, 6 years after its first decision,
the Board issued a Second Supplemental Decision and
Order in this case. 357 NLRB 1725 (2011). The Board
found that the Respondent’s summoning of the police
was not protected by the First Amendment on the basis
that it “did not constitute direct petitioning within the
meaning of the Noerr-Pennington doctrine.” Id. at 1725.
Accordingly, the Board reaffirmed its earlier conclusion
that by summoning the police to remove the union de-
monstrators from its sidewalk, the Respondent violated
Section 8(a)(1). Id. at 1728.
Once again, the Respondent filed a petition for review
in the District of Columbia Circuit, and on July 10, 2015,
that court issued its second decision in this case. Vene-
tian Casino Resort, LLC v. NLRB, 793 F.3d 85 (D.C. Cir.
2015). Disagreeing with the Board, the court found that
the Respondent’s act of summoning the police qualified
as direct petitioning of the government shielded from
liability under the Noerr-Pennington doctrine unless it
was “sham petitioning.” 793 F.3d at 92. As the court
explained,
the Noerr-Pennington doctrine does not cover activity
that was not genuinely intended to influence govern-
ment action. In other words, while genuine petitioning
is immune from Section 8(a)(1) liability under the
Noerr-Pennington doctrine, sham petitioning is not. 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.
Id. (internal citations and quotation marks omitted). The
District of Columbia Circuit remanded the case to the
Board to consider in the first instance whether the Re-
spondent had engaged in sham petitioning. Id. On Oc-
tober 2, 2015, the Board notified the parties that it had
accepted the remand and invited them to file position
statements. Only the Respondent filed a position state-
ment.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.

1 See Eastern Railroad Presidents Conference v. Noerr Motor
Freight, Inc., 365 U.S. 127 (1961); United Mine Workers of America v.
Pennington, 381 U.S. 657 (1965). The Noerr-Pennington doctrine
protects otherwise illegal activity that nevertheless constitutes a genu-
ine “‘attempt to persuade the legislature or the executive to take partic-
ular action.’” Professional Real Estate Investors, Inc. v. Columbia
Pictures Industries, Inc., 508 U.S. 49, 56 (1993) (quoting Eastern Rail-
road Presidents Conference v. Noerr Motor Freight, 365 U.S. at 136).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The central events underlying this case occurred on
March 1, 1999, over 18 years ago. As discussed above,
those events and the controversies leading up to them
have now been considered, not only in this proceeding
before the Board and the District of Columbia Circuit,
but also in Federal civil litigation between the Respond-
ent and the Union culminating in a decision of the Ninth
Circuit and the Supreme Court's denial of the Respond-
ent's request for certiorari. Considering the unusual cir-
cumstances of this case, including the very long passage
of time since the underlying events occurred and the con-
siderable administrative resources already consumed, we
find that it would not effectuate the purposes of the Act
to resolve the remaining legal question whether the Re-
spondent’s summoning of the police constituted sham
petitioning and likely prolong what has already been ex-
traordinarily protracted litigation. In particular, we ob-
serve, again, that the underlying events here occurred
over 18 years ago and that the Respondent has fully im-
plemented the remedies for the Board’s unfair labor prac-
tice findings that were enforced by the District of Co-
lumbia Circuit, which included orders to cease and desist
from playing a trespass message directed at peaceful un-
ion demonstrators, to cease and desist from informing
them that they are being placed under citizen's arrest, and
to cease and desist from engaging in any like or related
conduct. Further, there has been no showing or sugges-
tion that Respondent has repeated its unlawful conduct in
the long intervening period and following the latest re-
mand from the District of Columbia Circuit. We thus
conclude that by imposing those remedies, and requiring
the Respondent to post a notice affirming its commitment
to abide by them, we substantially affirmed the rights of
individuals engaged in Section 7 activities on the side-
walk in front of the Respondent's facility, and that further
action in this case would not effectuate the purposes of
the Act.
ORDER
The Board's Order, reported in 345 NLRB 1061
(2005), is modified by deleting paragraph 1(a) and relet-
tering the subsequent paragraphs.
Dated, Washington, D.C. February 5, 2018
______________________________________
Marvin E. Kaplan, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD