The NLRB will reconsider its earlier ruling on whether the Venetian Casino Resort committed an unfair labor practice by asking the Las Vegas police to cite a union agent for trespassing and to remove union protestors.  The case has followed a winding path and is based on the Venetian Casino’s response to a union demonstration in 2003.  At that time, the union organized nearly 1,000 protestors outside the casino’s temporary walkway entrance to publicize that the Venetian did not have a union contract with its workers.  To counter the demonstration, the casino posted signs that its walkway was private property, played a taped announcement that protesters could be arrested, and the casino’s private security guards placed a union agent under “citizen’s arrest” for illegally trespassing.  The casino also contacted the Las Vegas police and requested that police issue trespass citations to protestors and remove them from the casino’s temporary walkway entrance.  The union filed charges with the NLRB claiming that the casino’s actions violated section 8(a)(1) of the National Labor Relations Act, which prohibits activities that “threaten, restrain or coerce” union members in the exercise of their labor organizing rights under federal law.

The NLRB and the United States Court of Appeals for the D.C. Circuit agreed that the casino’s posted signs and broadcasted message violated section 8(a)(1) and ordered that the casino cease and desist those actions.  In a procedural twist, the Court of Appeals remanded the question of whether the casino’s request to the Las Vegas police was protected by the First Amendment.  Although the Board’s two-member panel reviewed this limited issue on April 29, 2009, the Supreme Court vacated the Board’s ruling as part of the New Process Steel, L.P. decision that the Board must have a three-member panel.  On August 27, 2010, and with a three-member panel in place, the NLRB issued its determination that it will sever the limited issue of the casino’s summoning of the Las Vegas police for further consideration.  Given the NLRB’s current composition, it seems unlikely that the NLRB would stray from its pro-union view on this issue.  However, the First Amendment question presented by the employer’s appeal could outweigh the union’s claim and result in a ruling that the casino’s appeal to the Las Vegas police was constitutionally-protected and therefore proper.

Despite the winding procedural path of this case, there are a few practical pointers for employers to consider when evaluating responses to union protestors or apparent union trespassing issues.  First, employers can prevent protestors from entering private property, but have limited ability to restrict quasi-public areas such as the temporary walkway entrance location in the Venetian Casino decision.  Second, a “citizen’s arrest” of trespassing demonstrators or union agents is likely to draw close scrutiny from the NLRB.  Last, depending on the NLRB’s final resolution of the casino’s calls to police, employers should consider the timing for seeking police assistance when faced with apparent union trespassers or demonstrators on private property.