Friday, July 24, 2015
Ticketing Trespassing Union Protesters Lawful
By: Thomas Eden
In February 1999, an ongoing battle between the Venetian, a Las Vegas luxury hotel and casino complex, and two labor unions came to a head. The Nevada Department of Transportation had issued the unions a permit to hold a demonstration against the Venetian on the temporary walkway in front of the hotel and on one lane of the Las Vegas Strip.
On the day of the demonstration, the Venetian took several additional measures to protect its property rights. The Venetian marked its property boundaries with orange paint and posted signs indicating that the temporary walkway was private property. As over 1,000 demonstrators marched on the walkway, the Venetian played a recorded message over a public address system. The message stated that the demonstrators were subject to arrest for trespass. The Venetian’s security guards placed the demonstration’s leader under citizen’s arrest. The Venetian then asked police officers at the demonstration to issue criminal citations to the demonstrators and to block them from the temporary walkway.
The unions, in turn, filed unfair labor practice complaints against the Venetian with the National Labor Relations Board. An administrative law judge found that the demonstration was protected activity under Section 7 of the National Labor Relations Act and ruled against the Venetian; who appealed the case to the District of Columbia Court of Appeals.
In ruling for the Venetian, the Court held that “the First Amendment’s Petition Clause in the U.S. Constitution protects the right of the people . . . to petition the Government for a redress of grievances… and when a person petitions the government in good faith, the First Amendment prohibits any sanction on that action.” This principle arises out of a U.S. Supreme Court doctrine called the Noerr-Pennington doctrine. Under the Noerr-Pennington doctrine as it applies in the labor law context, employer conduct that would otherwise be illegal may be “protected by the First Amendment when it is part of a direct petition to government.”
Applying those principles, the Court concluded that the Venetian’s act of summoning the police to enforce state trespass law is a direct petition to government subject to protection under the Noerr-Pennington doctrine. “Requesting police enforcement of state trespass law is an attempt to persuade the local government to take particular action with respect to a law. As we see it, that fits squarely within the traditional mold of a petition to government protected by the Noerr-Pennington doctrine,” ruled the Court.
Common Sense Counsel: This ruling gives employers an excellent road map to protect their rights and their property. Self help against trespassers is a bad decision during a heated union campaign that will get you an NLRB charge. It is critical to successfully win this battle that you now place “no trespassing” signs at all the entrances to your property so you can enforce your rights later.
Tommy Eden is a partner working out of the Constangy, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at firstname.lastname@example.org or 334-246-2901. Blog at www.alabamaatwork.com and follow on twitter tommyeden3