First Amendment Requires Police to Respond to Employer’s Complaint about Union Trespassers

When over 1,000 demonstrators showed up on the Venetian Casino Resort’s property in Las Vegas, the casino believed they were trespassers and asked them to leave. The resort then asked the police to intervene. The union filed an unfair labor practice charge with the National Labor Relations Board alleging that the Venetian interfered with the demonstration and employees’ rights in violation of the National Labor Relations Act. In response, the Venetian argued that its conduct in calling the police was protected by the First Amendment, which protects “the right of people…to petition the government for redress of grievances.”

The Noerr-Pennington doctrine interprets the First Amendment and insulates a company from liability where its conduct is a direct petition to the government. The D.C. Circuit Court of Appeals concluded that the Venetian’s “request that the police officers at the demonstration issue criminal citations to the demonstrators and block them from the walkway” was a protected petition to the government. However, that is not the end of this case. The Court remanded the case to the Board and directed the Board to consider whether the Venetian’s request for police intervention was a sham. If the Board determined that the petition was a sham, or that it was “objectively baseless,” then the Venetian’s request for police intervention would not be protected by the First Amendment.

Companies should not expect that all calls to police related to union activity are protected by the First Amendment. However, in some circumstances, such as when a company is trying to protect its property interests, the protection offered by the First Amendment and the Noerr-Pennington doctrine is a powerful tool in a company’s toolkit.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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