793 F.3d 85
D.C. Cir.2015Background
- Venetian Casino Resort built a temporary walkway on its property after a road expansion; unions obtained a permit to demonstrate there in 1999.
- Venetian asserted the walkway was private, marked boundaries, posted trespass signs, broadcast anti-trespass messages, and sought police intervention during the demonstration (requested criminal citations and to have police block the walkway).
- Unions filed unfair labor practice charges; the NLRB and an ALJ found the demonstration was protected under §7 of the NLRA and that some Venetian conduct violated §8(a)(1).
- On initial appeal, this Court affirmed most of the Board’s findings but remanded the question whether the Venetian’s request to police was protected petitioning under Noerr-Pennington.
- On remand the Board concluded the police request was not a protected petition and again found an unfair labor practice; the Venetian petitioned for review and the Board sought enforcement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether asking on-duty police to issue citations and block demonstrators is a "petition" protected by Noerr-Pennington | Venetian: summoning police to enforce trespass is a direct petition to government entitled to First Amendment/Noerr protection | NLRB: Noerr protects high-level or policy-oriented petitions (e.g., laws, significant enforcement policy); private requests to police on-the-ground enforcement fall outside Noerr | Court: Requesting police enforcement of trespass is a direct petition covered by Noerr-Pennington |
| Whether the sham-petition exception defeats Noerr immunity here | Venetian: its request was a genuine attempt to vindicate property rights | NLRB: (did not address on remand because it concluded Noerr did not apply) | Court: Directed remand—Board must consider in first instance whether the petition was an objectively baseless sham |
| Validity of NLRB’s electronic distribution requirement for remedial notice | Venetian: electronic-posting requirement on remand was arbitrary/exceeded authority | NLRB: imposed requirement as remedial measure | Court: Did not decide because it vacated and remanded the 2011 order for further proceedings |
Key Cases Cited
- Noerr Motor Freight, Inc. v. Eastern R.R. Presidents Conference, 365 U.S. 127 (1961) (establishes Noerr-Pennington petitioning immunity doctrine)
- United Mine Workers v. Pennington, 381 U.S. 657 (1965) (applies petitioning immunity in economic contexts)
- California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972) (petitioning includes attempts to influence enforcement of laws and advocacy of business positions)
- Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983) (Noerr principles applied in labor-law context)
- BE&K Construction Co. v. NLRB, 536 U.S. 516 (2002) (distinguishes protected petitioning from sham litigation in labor cases)
- Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1988) (Noerr does not protect collusive manipulation of a private standard-setting body)
- Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) (refuses First Amendment petition defense where petitioner had no cognizable interest in enforcement at issue)
- Forro Precision, Inc. v. IBM, 673 F.2d 1045 (9th Cir. 1982) (supports protection for citizen communications with police to ensure flow of information to law enforcement)