The Venetian s Troubles Seemed So Far Away

Transcription

1 The Venetian s Troubles Seemed So Far Away On Remand, the Obama Board Revisits Calling the Police to Respond to Demonstrators: Was This Unlawful Interference with Section 7 Activity? Venetian Casino Resort, 355 NLRB No. 165 (2010) Thomas Anthony Swafford MILLER & MARTIN PLLC 1200 One Nashville Place 150 Fourth Avenue North Nashville, Tennessee tswafford@millermartin.com

2 Introduction 1 Over the past decade, the Board and various courts have repeatedly returned to the events of early March 1999, in their attempts to determine whether the response of the Venetian to the presence of protestors on its private property or the precautions taken on threat of the same violated section 8(a)(1) of the Act. While two such actions taken by the Venetian have been laboriously argued and were eventually found to have violated the Act, one issue remains: Did the Venetian violate Section 8(a)(1) of the Act when it summoned the police to issue citations to union demonstrators protesting on its property? More specifically, can the Venetian be held liable under the Act when the action in question summoning the police was a legitimate petition of the courts as protected by the First Amendment s Petition Clause? This paper will not belabor the plethora of public policy arguments supporting the Venetian s actions, as the law itself requires that proper petitions of the government, and activities incidental to such petitioning, are immunized from liability under federal statutes, including the NLRA. Ironically, however, a finding that the Venetian s actions did violate the Act would result in protecting the First Amendment rights of the protestors to speak and assemble, but ignoring the First Amendment rights of any entity (here, the property owner) to seek a redress of grievances. Moreover, such a decision would effectively chill the ability of a property owner and employer even one with neither employees nor applicants to seek assistance from law enforcement officials to perform their quintessential function. Such a finding begs the question: in what circumstances is a plea to law enforcement appropriate? Irrespective of such policy-based arguments, the law is clear. The Venetian s First Amendment right to petition shields it from liability under the Act, provided its petition was legitimate, and neither objectively baseless nor motivated by an unlawful purpose. Background The Venetian, a luxury hotel and casino in Las Vegas, began construction in 1997, in the location previously occupied by the Sands Casino and Hotel. 2 The 1 The author wishes to acknowledge the assistance of Miller & Martin PLLC Associates, Sarah Maxwell, Sara Anne Thomas, and Kyle Young, in the research and preparation of this paper. 2

3 Venetian s construction and resulting traffic required Clark County, Nevada (the County ) to expand the Boulevard to accommodate this projected increase in traffic. Accordingly, prior to commencing construction, the Venetian formed an agreement with the County that it would bear the responsibility of building a private sidewalk on its property to replace the public sidewalk which was demolished as a result of the Boulevard expansion. 3 In the meantime, the Venetian created a temporary sidewalk for use during construction. 4 Shortly thereafter, the Venetian learned that local unions had planned a rally in protest that the Venetian which, at that time, was neither operational nor hiring did not have a union contract. 5 The unions intended to conduct the rally on the Venetian s temporary sidewalk. 6 In anticipation of the protest, a Venetian representative met with the Clark County District Attorney, airing its concerns that the sidewalk was on its private property and, therefore, not available for the protestors use, pursuant to the state trespass statute. 7 The District Attorney, however, responded that his office would not enforce the trespass statute because the rights of the Venetian either to block or remove demonstrators were unclear to him at that time. 8 Soon thereafter, a Venetian representative spoke with the Las Vegas Metropolitan Police Department ( LVMPD ) which also declined to enforce the state trespass statute, indicating that the LVMPD would not arrest any protestors for trespass. 9 The demonstration occurred as planned on March 1, 1999, on the Venetian s temporary sidewalk, despite signs stating the walkway was private property. 10 The protestors cries explicitly mocked the Venetian s property concerns. 11 Throughout the protest, the Venetian played a recorded message on repeat, warning that the protestors 2 Venetian Casino Resort, L.L.C. v. NLRB, 484 F.3d 601, 603 (D.D.C. 2007). 3 Id. 4 Id. at Id. 6 Id. 7 Id. The Nevada unlawful trespass upon land statute provides: [A]ny person who, under circumstances not amounting to a burglary: (a) Goes upon the land or into any building of another with intent to vex or annoy the owner or occupant thereof, or to commit any unlawful act; or (b) Willfully goes or remain upon any land or in any building after having been warned by the owner or occupant thereof not to trespass, is guilty of a misdemeanor. NEV. REV. STAT Venetian Casino Resort, L.L.C. v. NLRB, 484 F.3d at Id. 10 Id. 11 Id. 3

4 would be subject to arrest for trespass. 12 Venetian security guards also told the protest leader that he was under citizen s arrest, though they did not take him into custody. 13 Following the protest, the Venetian immediately sought assistance from the courts, in a continued effort to protect its property rights. 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. 14 The district court rejected the Venetian s argument holding that because the walkway performed an essential function the Venetian could not lawfully restrict the demonstrators exercise of their First Amendment rights. 15 The Ninth Circuit affirmed the District Court s decision. 16 The United States Supreme Court denied the Venetian s petition for writ of certiorari. 17 On January 23, 2003, the National Labor Relations Board ( NLRB ) issued a complaint alleging that the Venetian violated section 8(a)(1) of the NLRA ( 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. 18 An administrative law judge ( ALJ ) tried the case on April 3, The ALJ issued a decision on June 12, 2003 concluding that because the walkway was a public forum and the demonstrators were engaged in NLRA protected activity, the Venetian violated the Act by committing an unfair labor practice when it interfered with the demonstration. 20 The Board affirmed the ALJ s decision on September 30, The Venetian filed a timely petition for review to the United States Court of Appeals, District of Columbia Circuit, and the Board filed a cross-application to enforce its order. 22 The Court of Appeals denied the Venetian s petition for review and granted 12 Id. at Id. 14 Id. 15 Id.; see also Venetian Casino Resort v. Local Joint Executive Bd., 45 F.Supp.2d 1027 (D. Nev. 1999). 16 Id. at Id.; see also Venetian Casino Resort v. Local Joint Executive Bd., 535 U.S. 905 (2002). 18 Id. at Id.; see also Venetian, 2005 WL , at * Venetian, 484 F.3d at Id. 22 Id. 4

5 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. 23 The Court remanded that issue to the Board. 24 After the Court s remand, the General Counsel, the Local Joint Executive Board, and the Venetian filed statements of position. 25 The two (2) sitting members of the Board issued a Supplemental Decision and Order in the proceedings on April 29, Following the two (2) member Board s Supplemental Order and Decision, the Venetian filed for review in the United States Court of Appeals for the District of Columbia. 27 On June 17, 2010, the United States Supreme Court issued its decision in New Process Steel, L.P. v. NLRB, holding that under section 3(b) of the Act, a delegee group of at least three (3) members must be maintained in order to exercise the delegated authority of the Board. 28 The Board then issued an order setting aside the two (2) member Board s Supplemental Decision and Order, and retained this case on its docket for further action. 29 The three (3) member Board reconsidered the finding and decided to sever the remanded finding for further consideration. 30 As such, the only remaining issue before the Board on remand is whether the Venetian s summoning the police invoked the Petition Clause of the First Amendment such that it was protected by the Noerr-Pennington doctrine and immunized from liability under Section 8(a)(1) of the NLRA. I. The Venetian Said Something Wrong, Now It Longs for Yesterday? 31 The Venetian s attempt to summon the police was a proper invocation of the Petition Clause of the First Amendment, therefore immunizing it from liability under Section 8(a)(1) of the NLRA. The First Amendment of the Constitution of the United States preserves the right of an individual or entity to petition the government for the redress of grievances Id. at Id. 25 Venetian Casino Resort, LLC v. Local Joint Executive Bd., 355 NLRB No. 165, at *1 (Aug. 27, 2010). 26 Id.; see also 354 NLRB No Venetian, 355 NLRB No. 165 at * S.Ct (2010). 29 Venetian., 355 NLRB at *1. 30 Id. 31 Adapted from Yesterday, written by Paul McCartney and John Lennon, as performed by The Beatles. 32 U.S. Const. amend. I. 5

6 The United States Supreme Court noted that this right is one of the most precious liberties safeguarded by the Bill of Rights. 33 This right is not limited to access to courts alone access to courts is but one aspect of the right of petition indeed, the broad right extends to petitions to all departments of the Government. 34 In a seminal antitrust decision, E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., the United States Supreme Court held that, where a party acted in a genuine effort to influence legislation and law enforcement practices therefore constituting a valid petition to the government those actions cannot provide a basis for a violation of federal antitrust statutes. 35 This broad right to petition is not limited merely to antitrust law. In fact, the right to petition has twice been safeguarded by the Supreme Court in the face of challenges by the National Labor Relations Board. In both Bill Johnson s Restaurants, Inc. v. NLRB 36 and BE & K Construction. Co. v. NLRB, 37 the Court held that the filing of a lawsuit by the employer could not be found to violate the National Labor Relations Act ( NLRA ). In both instances, the Court specifically relied on Noerr s holding that genuine petitioning is immune from antitrust liability, and extended it to immunize genuine petitioning from liability under other federal statutes. 38 A. The Venetian s Act of Summoning the LVMPD Was a Direct Petition of the Government In anticipation of the protest, the Venetian called the LVMPD and requested that they enforce Nevada s trespass statute 39 and protect the Venetian s private property rights in the face of an impending protest. This action was a direct petition to the government and an exercise of the Venetian s First Amendment right. The LVMPD is a governmental law enforcement body charged specifically with enforcing the laws of Nevada and protecting the rights of the people of Nevada. The Venetian communicated with them for no reason other than to influence law enforcement practices by requesting 33 BE & K Constr. Co. v. NLRB, 536 U.S. 516, 517 (2002). 34 Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 511 (1972). 35 E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 144 (1961) U.S. 731, 743 (1983) U.S. 516 (2002). 38 Id. at 525; Bill Johnson s, 461 U.S. at Venetian Casino Resort, L.L.C. v. NLRB, 484 F.3d 601, 604 (D.D.C. 2007). 6

7 their attention to the violations of law in progress. 40 Therefore, the Venetian s call is clearly a petition explicitly covered by the First Amendment. As discussed above, the right to petition is not limited solely to the filing of lawsuits. Indeed, it extends to the petitioning of all branches of government. 41 The First Amendment does not limit the right to petition the government to filing lawsuits. As the Court notes in BE & K, the NLRA is federal law, as is the Sherman Act, and relies on interpretation of the First Amendment right found within the antitrust context. 42 The actions upheld as petitioning in cases relied upon in both BE & K and Bill Johnson s were not limited merely to the filing of lawsuits. Instead, in Noerr, the court found that the banding together to create a publicity campaign with the intent to influence lawmakers was protected petitioning. 43 If actions influencing decisions on new laws is held to be petitioning activity, certainly a direct call to a law enforcement agency requesting the enforcement of applicable and existing law is such a direct petition. B. Alternatively, The Venetian s Summoning of the LVMPD Is Protected As An Act Incidental to the Direct Petition of Filing Suit Although the Venetian s call to the police was protected as a direct petition to the government, in the alternative, the call was protected as conduct incidental to another direct petition of the government: the Venetian s filing of an action seeking declaratory relief and a preliminary injunction to bar future demonstrations. Indeed, the Supreme Court has recognized that anticompetitive restraints incidental to direct petitions to the government cannot be considered antitrust violations. 44 This doctrine was expanded beyond the realm of antitrust matters in Sosa v. DIRECTV, Inc., which involved an action challenged as a RICO violation. 45 In Sosa, the Ninth Circuit found that restrictions on pre-suit demand letters may raise Petition Clause issues, as the letters constituted conduct incidental to a future suit, even though no existing petition yet 40 See E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 144 (1961). 41 Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 511 (1972). 42 BE & K Constr. Co. v. NLRB, 536 U.S. 516, 526 (2002). 43 E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, (1961). 44 Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499 (1988) (citing Noerr, 365 U.S. at 143). 45 Sosa v. DIRECTV, Inc., 437 F.3d 923 (9th Cir. 2006). 7

8 existed. 46 Accordingly, the Noerr-Pennington doctrine applies in various legal contexts, but the extent of its immunity varies with the context and nature of the activity. 47 Here, the Venetian summoned the District Attorney and the LVMPD in order to enforce its property rights. Furthermore, within three days of the protest, the Venetian filed for declaratory relief stating that the protest constituted a taking under the Fifth Amendment and violated the Venetian s constitutional property rights. 48 The Venetian also included in its initial action a request to enjoin County Officials from authorizing more demonstrations on its property and from refusing to enforce its private property rights, as the District Attorney and LVMPD had done. 49 The District Court s findings that the Venetian s attempts to provide notice to the protestors that they were in violation of the trespass statute were not pre-litigation activities because the Venetian never filed a suit for trespass against the protestors is contrary to Sosa where there was no suit ongoing, and thus, no existing petition to which the demands were incidental. 50 There, the pre-suit settlement letter was drafted with the intent, as here, to obviate the very need for a lawsuit. Simply because the Venetian ultimately did not file a trespass suit neither diminishes its good-faith and reasonable belief that it was well within its rights to do so, nor does it diminish its ability to preserve its right to take such action pursuant to the Nevada trespass statute. That is, at the time it called the police, the Venetian sought to preserve its rights against infringement by any party, and its eventual decision not to pursue action against the individual protestors cannot invalidate its right of preservation. The Venetian s communications to the proper governmental authorities not only constituted a direct petition to the government for aid, but also constituted a precondition to filing an injunction in this context. That is, the Venetian s certainty that the LVMPD and District Attorney were unable or unwilling to furnish adequate protection was a statutory requirement for the issuance of an injunction where the 46 Id. at Allied Tube, 486 U.S. at Venetian Casino Resort, L.L.C. v. NLRB, 484 F.3d 601, 605 (D.D.C. 2007). 49 Allied Tube, 486 U.S. at Venetian Casino Resort, L.L.C. v. NLRB, 484 F.3d at 612; Sosa, 437 F.3d at 935 8

9 situation involved a labor dispute. 51 Before issuing an injunction in a any case involving or growing out of a labor dispute, a court must find: (a) That unlawful acts have been threatened and will be committed unless restrained or have been committed and will be continued unless restrained...;... (c) That complainant has no adequate remedy at law; and... (e) That the public officers charged with the duty to protect complainant s property are unable or unwilling to furnish adequate protection. 52 A labor dispute is defined as any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment. 53 As the protest was organized by local unions ostensibly concerned the Venetian s future hiring decisions, and the Board has since evaluated the Venetian s actions in the context of Section 8(1)(a) of the NLRA, the Venetian s actions in accordance with 29 U.S.C. 107 to preserve its ability to file for an injunction in a case involving a labor dispute were certainly reasonable. The Venetian s call was both an attempt to restrain the protestors trespass on its private property, and an attempt to enlist the protection of the public officers charged with the duty to protect its property rights and enforce the trespass law. The District Attorney and the LVMPD s unwillingness to do so was a prerequisite to injunctive relief where the underlying dispute was a labor dispute. In sum, these actions were not only common practice prior to the filing of a suit, like the demand letter in Sosa, but also prerequisites to seeking injunctive relief. As such, they were clearly incidental to the filing for injunctive relief, which the Venetian did within three days of the protest. While the Venetian attempted to seek an injunction against County Officials and the LVMPD, in addition to the Union, this fact is no hindrance to the application of 29 U.S.C The statute does not apply only to the U.S.C. 107(e). 52 Id. (emphasis added) U.S.C. 113(c). 9

10 issuance of injunctions against the other party involved in the labor dispute, but broadly states that it applies to any case involving or growing out of a labor dispute. Therefore, even a case involving an injunction against a third-party, such as the County Officials, is still under the purview of the statute, as the violation of property rights is occurring in the name of employee and union rights, clearly invoking a labor dispute. Furthermore, applying the factors set forth in Sosa, the Noerr-Pennington doctrine encompasses the Venetian s actions. First, the sham exception to the doctrine, excluding actions which are not actually petitions but mere shams to cover violations of law, 54 still protects against pre-litigation activities leading up to mere sham litigation. 55 Further, Sosa protected activity considered a common feature of litigation in that instance, a demand letter. 56 The Venetian s conduct was more than merely common to litigation; it was a prerequisite to the very action filed. And finally, protecting the requisite conduct of the Venetian necessarily protects the same interests involved in litigation, which were identified by the Supreme Court as worthy of protecting, including the public airing of disputed facts and the ability to lawfully prosecute even unsuccessful suits. 57 Accordingly, the Noerr-Pennington doctrine immunizes the Venetian s summoning of the police and District Attorney, as it was clearly conduct incidental to the filing of a lawsuit. II. Such an Easy Game to Play: 58 The Venetian Calling to Police to Issue Citations to Union Demonstrators Was Reasonable and Not Pursued for Unlawful Motives. As discussed above, the Venetian did not violate Section 8(a)(1) of the Act by summoning the local law enforcement because it maintained a reasonable concern that the Union demonstrators were trespassing on its private property. 59 Summoning local law enforcement to remove union demonstrators and to issue trespass citations was not objectively baseless or motivated for unlawful purposes E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 144 (1961). 55 Sosa v. DIRECTV, Inc., 437 F.3d 923, 936 (9th Cir. 2006). 56 Id. 57 See Sosa, 437 F.3d at Adapted from Yesterday, written by Paul McCartney and John Lennon, as performed by The Beatles. 59 Nation s Rent, Inc., 342 NLRB 179, 181 (2004)(trespass by picketers)(citing Great American, 322 NLRB 17, 21 (1996)(hand-billing causing interference with vehicular traffic). 60 See Prof l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49 (1993). 10

11 A. Protecting Genuine Petitioning Activity: The BE & K Decision The Court in BE & K opined that the First Amendment protects legitimate petitioning of the government. 61 According to the BE & K Court, the genuineness of a petition should be determined by the reasonableness of the petition from the perspective of the plaintiff at the time the petition was filed. 62 As a result, the fact that a petition was ultimately unsuccessful is no longer determinative. Instead, the inquiry is whether the petition was reasonable from the outset. 63 As a result, there can be no retaliatory motive in a reasonably based suit if it attacked unprotected conduct. 64 The BE & K Court held that such a policy would prevent legitimate petitioning where it was directed at conduct that a petitioner reasonably believed was illegal. 65 The Court also explained that inferring a retaliatory motive from evidence of animus would condemn legitimate petitioning in instances where the petitioner's "purpose is to stop conduct he reasonably believes is illegal." 66 That is, the mere fact that the petitioner dislikes or disagrees with the respondent does not prevent the petitioner from asserting its constitutional right to petition to stop conduct it reasonably believes is illegal, e.g., trespassing on private property. 67 B. Employing Both An Objective and Subjective Test - The Standard Following Professional Real Estate Investors The Supreme Court set forth the standard to determine whether a lawsuit is reasonably based. 68 The antitrust standard provides that "a lawsuit lacks a reasonable basis, or is 'objectively baseless,' if 'no reasonable litigant could realistically expect 61 BE & K Constr. Co. v. NLRB, 536 U.S. 516, (2002). 62 Id. at 526 (citing Prof l Real Estate Investors, 508 U.S. at 60-61). 63 BE & K Constr. Co. v. NLRB, 536 U.S. at ; see also Case Handling Instructions for Cases Concerning Bill Johnson s Restaurants and BE & K Construction Co., Memo. GC 02-09, dated September 20, BE & K, 536 U.S. at 527; see also Carol Rice Andrews, After BE & K: The Difficult Constitutional Question of Defining the First Amendment Right to Petition Courts, 39 Houston L. Rev (2003) (discussing the term merit under the First Amendment debate). 65 Id. 66 Id. 67 Id. 68 BE & K Constr. Co. v. NLRB, 536 U.S. 516, 526 (2002) (citing Prof l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, (1993). 11

12 success on the merits.' 69 The United States Supreme Court explained in Professional Real Estate Investors that it always has held that improper use alone could not transform otherwise legitimate activity into a sham. 70 The Professional Real Estate Investors Court established a two-part test for sham litigation: 71 First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under Noerr, and an antitrust claim premised on the sham exception must fail. Only if challenged litigation is objectively meritless may a court examine the litigant s subjective motivation. 72 The Professional Real Estate Investors test emphasizes the objective merit of the underlying petition activity. 73 Therefore, if a claim has objective merit when filed, the subjective motive of a plaintiff is irrelevant. 74 C. The Venetian Showed A Reasonable Concern That the Demonstrators Were Interfering with Its Legally Protected Interests An employer 75 may seek to have the police take action against demonstrators where the employer is motivated by a reasonable concern, e.g., public safety or interference with its legally protected interests. 76 Provided the employer is acting on the basis of a reasonable concern, Section 8(a)(1) is not violated merely because the police determine that, under all the circumstances, taking action is unwarranted. 77 Moreover, as the Administrative Law Judge held in Spain Brook Manor Nursing Home, 69 Prof l Real Estate Investors, 508 U.S. at Id. at Carol Rice Andrews, After BE & K: The Difficult Constitutional Question of Defining the First Amendment Right to Petition Courts, 39 Houston L. Rev. 1299, 1312 (2003) (discussing the term merit under the First Amendment debate). 72 Prof l Real Estate Investors, 508 U.S. at (alteration in original) (emphasis added) (citations and footnote omitted). 73 Id. 74 Id. 75 Although the reviewing Courts have concluded that the Venetian is an employer as defined under the National Labor Relations Act, we disagree. However, for purposes of this paper we will argue assuming that the Venetian is, in fact, an employer as defined under the NLRA. 76 Nation s Rent, Inc., 342 NLRB at 181 (citing Great American, 322 NLRB at 21). 77 Id. 12

13 LLC, 78 an employer can take reasonable steps to prevent non-employees from trespassing onto private property. On June 30, 2010, the Associate General Counsel Division of Advice for the NLRB issued an Advice Memorandum to the Regional Director for Region 5, concluding that because the Gaylord National Hotel and Convention Center ( Gaylord ) had a reasonable concern about picketers trespassing on its private property, summoning the police did not violate Section 8(a)(1). 79 In Gaylord, the evidence in the record indicated that the picketers were not on Gaylord s private property. 80 A city engineer provided a drawing that showed the property where the picketing occurred months earlier. 81 The engineer s drawing illustrated that there existed a sixty-foot public right-of-way covering the whole of the property, including the sidewalks, the street, and the grassy areas on both sides of the sidewalk. 82 However, because the parties were uncertain and confused regarding the width of the public right-of-way at the time of picketing, the NLRB found that the Gaylord had a reasonable concern that the picketers were trespassing on its private property. 83 The Advice Memorandum provided in the Gaylord case held that in light of the confusion at the time of picketing and the continuing uncertainty during the Region s investigation, Gaylord s concern that the picketers were trespassing on its private property was at least reasonable. 84 The Venetian s concern that the Union demonstrators were trespassing on its private property was reasonable. 85 Soon after the Union announced that it planned to demonstrate on the temporary sidewalk located on the Venetian property, a Venetian representative visited the Clark County District Attorney to argue that the Union had no NLRB 75 (2007); see also Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992)(employer may lawfully bar nonemployee union organizers from private property unless the employees are inaccessible through usual channels). 79 Gaylord Nat l Hotel and Convention Ctr., Case 5-CA-35330, Advice MEMORANDUM, dated June 30, Id. at Id. 82 Id. 83 Id. at Id. at See id. 13

14 right to use the sidewalk to demonstrate. 86 Prior to the meeting, the District Attorney issued a press statement stating that the walkway was quasi-private property, and that it was unclear whether the Venetian had the right to block or remove demonstrators from using the area to picket. 87 Following the meeting between the Venetian representative and the District Attorney, the District Attorney informed the Venetian representative he would not intervene to enforce the Nevada trespass statute. 88 The Las Vegas Police Department followed suit and told the Venetian representative it did not intend to arrest demonstrators or issue citations for trespassing on private property. 89 Like the Gaylord, the Venetian s uncertainty and confusion at the time of the picketing created concern that the demonstrators were trespassing on Venetian property. This concern, at the very least, was reasonable. 90 Based on the Venetian s understanding of the Nevada trespass statute, the advice of outside counsel, and the federal court findings in the MGM Grand litigation, the Venetian clearly had a reasonable basis for claiming its private sidewalk was private property. 91 Indeed, one of the Judges on the Ninth Circuit, Circuit Judge Brunetti, agreed with the Venetian s position entirely further proof that the Venetian s representations were at least reasonable. 92 Moreover, the District Attorney s press statement that it was unclear whether the Venetian had the right to block or remove demonstrators from using the area shows the facts were unclear at the time. 93 These facts represent exactly the type of uncertainty and confusion that surrounded the picketing of Gaylord s property. 94 Thus, 86 Venetian Casino Resort, L.L.C. v. NLRB, 484 F.3d 601, 604 (D.C. Cir. 2007). 87 Venetian Casino Resort, L.L.C. v. NLRB, 484 F.3d at Id. 89 Id. 90 See id.; see also Gaylord Nat l Hotel and Convention Ctr., Case 5-CA-35330, Advice MEMORANDUM, dated June 30, Id. 92 Brief of Petitioner-Appellant at 27, Venetian Casino Resort, LLC v. NLRB, No (D.C. Cir. Apr. 24, 2006). 93 Venetian Casino Resort, 484 F.3d at See Gaylord Nat l Hotel and Convention Ctr., Case 5-CA-35330, Advice MEMORANDUM, dated June 30,

15 the Venetian s summoning of the police to enforce a legally protectable interest was objectively reasonable at the time of the petitioning activity. 95 Conclusion The decisions below cannot diminish the strength of the Noerr-Pennington doctrine as applied in BE & K and properly extended in Sosa, and the Board s own advisement in Gaylord, all of which support the conclusion that the Venetian s summoning of the police did not violate Section 8(a)(1). Rather, that conduct was immunized as conduct protected by the Petition Clause of the First Amendment. 95 Prof l Real Estate Investors, 508 U.S. at