NLRB v. The Constitution: Constitution Wins

by Seyfarth Shaw LLP
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In early 1999, the Venetian Casino Resort in Las Vegas asked police officers to remove union protesters from a temporary walkway in front of the Venetian — a walkway the Venetian built on its property in exchange for the public expansion of the Las Vegas Strip to accommodate increased vehicular traffic.

Eventually, the Ninth Circuit determined that the walkway was a public forum, so the Venetian had no property right to exclude them.  In turn, the unions behind the protest filed an unfair labor practice charge challenging, among other things, the Venetian’s request that the police remove the protestors from the walkway (even though the police did not oblige).  The Venetian responded that its request was protected by the Petition Clause of the First Amendment to the U.S. Constitution (which protects “the right of the people . . . to petition the Government for a redress of grievances”) and therefore could not be a violation of the National Labor Relations Act (“Act”).  In 2011, the NLRB ruled that: (1) the request to the police was not protected by the First Amendment because it was not a “direct petition to the government” and (2) the request violated the Act.

On July 10, 2015, the D.C. Circuit reversed the NLRB, holding that the Venetian’s request to the police was a “direct petition to the government,” which is generally entitled to the protections of the Petition Clause of the First Amendment.  That said, the case still is not over because “sham petitions” — i.e., petitions that are “objectively baseless” and “brought with the specific intent to further wrongful conduct through the use of governmental process” — are not protected by the First Amendment.  The court remanded the case to the NLRB to determine whether the Venetian’s (16-year-old!) request to the police was a sham petition, in which case it still will be considered a violation of the Act.

Key point for employers:  Keep in mind that the Venetian did commit unfair labor practices by threatening to have the protestors arrested and by having its security officers place protestors under citizen’s arrest.  Neither of those actions could be protected by the First Amendment.  Many employers are quick to evict union protestors from “their property,” but the labor laws permit this only if the public truly has no right to be on the property.  In some cases, the public’s right in that regard is unknown to the employer, or at least unclear, until after the union challenges the eviction — as the Venetian found out in this case.  Further, while the D.C. Circuit’s opinion suggests that perhaps the safest thing to do is to call the police and let them sort it out, that option is often met with the practical reality that the police will not intervene (as in the Venetian’s situation).  To complicate matters further, when employees are involved in the protest, they may well have the right to be on the property, regardless of the employer’s property rights.  So what is an employer to do when faced with a workplace-related protest on or near its property?  First, know your property rights (as well as they can be known) beforehand.  Second, so long as things are peaceful and safe, take the time to think through your reaction very carefully.  Sometimes (though not always), the most successful reaction — and the one that can save you 16+ years of litigation — may be none at all.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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