United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 17, 2015 Decided July 10, 2015

No. 12-1021

VENETIAN CASINO RESORT, L.L.C.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 12-1076

On Petition for Review and Cross-Application for

Enforcement of an Order of 

the National Labor Relations Board

John J. Manier and Matthew T. Wakefield argued the 

causes for petitioner. With John J. Manier on the briefs were 

Frederick H. Kraus and Richard S. Rosenberg.

Kellie Isbell, Attorney, National Labor Relations Board, 

argued the cause for respondent. With her on the brief were 

John H. Ferguson, Associate General Counsel, Linda 

Dreeben, Deputy Associate General Counsel, and Ruth E. 

Burdick, Supervisory Attorney. Kira D. Vol, Attorney, 

entered an appearance.
2

Before: BROWN, KAVANAUGH, and WILKINS, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge 

KAVANAUGH.

KAVANAUGH, Circuit Judge: During a union 

demonstration in front of the Venetian Casino Resort, the 

Venetian requested that police officers at the scene issue 

criminal citations to the demonstrators and block them from 

the walkway because they were allegedly trespassing upon 

private property belonging to the Venetian. The National 

Labor Relations Board later determined that the Venetian had

thereby committed an unfair labor practice in violation of the 

National Labor Relations Act. 

The Venetian argues that the Noerr-Pennington doctrine

immunizes it from liability under the Act. The NoerrPennington doctrine originated in the antitrust context but has 

also been applied in labor cases. Under that doctrine, conduct 

that constitutes a direct petition to government, but would 

otherwise violate the Act, is shielded from liability by the 

First Amendment. We agree with the Venetian that its

request to the police was covered by the Noerr-Pennington 

doctrine. We therefore grant the Venetian’s petition for 

review, deny the Board’s cross-application to enforce its 

order, and vacate the Board’s order. That said, the NoerrPennington doctrine has an exception for sham petitions. 

Because the Board failed to address whether the Venetian’s 

petition was a sham, we remand so that the Board may 

consider that question in the first instance.
3

I

In 1999, the Venetian, a luxury hotel and casino complex, 

opened on the famed Las Vegas Strip. A traffic impact study 

commissioned by the Venetian’s developers indicated that the 

new complex would worsen vehicular traffic on the Strip. 

Clark County, the Nevada county in which Las Vegas is 

located, therefore expanded the Strip by one lane. The 

expansion displaced a public sidewalk that had previously run 

along the front of the Venetian’s property. In exchange, the 

Venetian agreed to build a replacement sidewalk, running 

parallel to the Strip, on its property. In February 1999, the 

Venetian built a temporary walkway in the agreed-upon 

location.

Also in February 1999, an ongoing battle between the 

Venetian and two labor unions came to a head. The Nevada 

Department of Transportation issued the unions a permit to 

hold a demonstration against the Venetian on the temporary 

walkway and on one lane of the Strip.

The Venetian strenuously objected to the proposed 

location of the demonstration. A representative of the 

Venetian spoke with the Clark County District Attorney. The 

Venetian took the position that the temporary walkway was 

its private property and that the unions therefore had no right 

to demonstrate there. The District Attorney responded that he 

would not enforce Nevada’s trespass law against the 

demonstrators. The Venetian’s representative then met with 

police department officials. Those officials explained that 

police officers would attend the demonstration to protect 

public safety but would not arrest the demonstrators for 

trespass.
4

On the day of the demonstration, the Venetian took 

several additional measures to protect its alleged 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. And importantly for purposes of this 

case, the Venetian asked police officers at the demonstration 

to issue criminal citations to the demonstrators and to block

them from the temporary walkway.

Soon thereafter, the Venetian filed suit for injunctive and 

declaratory relief against the unions and various government 

entities. See Venetian Casino Resort, LLC v. Local Joint 

Executive Board of Las Vegas, 257 F.3d 937, 939 (9th Cir. 

2001), cert. denied, 535 U.S. 905 (2002). The Ninth Circuit

ultimately held that the temporary walkway was a public 

forum subject to First Amendment protections and that the 

Venetian had no right to impede public access to the 

walkway. See id. at 946, 948.

The unions, in turn, filed unfair labor practice complaints

against the Venetian with the Board. An administrative law 

judge found that the demonstration was protected activity

under Section 7 of the National Labor Relations Act. See 

Venetian Casino Resort, LLC, 345 N.L.R.B. 1061, 1061 

(2005).1

 The ALJ concluded that the Venetian had committed 

 1 Under Section 7 of the Act, employees have “the right to 

self-organization, to form, join, or assist labor organizations, to 

bargain collectively through representatives of their own choosing, 

and to engage in other concerted activities for the purpose of

collective bargaining or other mutual aid or protection.” 29 U.S.C. 
5

unfair labor practices under Section 8(a)(1) of the Act by 

interfering with the demonstration. See id. The Board, in its 

2005 Decision and Order, affirmed the ALJ’s decision. See 

id. 

On appeal, we affirmed the Board’s 2005 Decision and 

Order on all but one issue. See Venetian Casino Resort, LLC 

v. NLRB, 484 F.3d 601, 603 (D.C. Cir. 2007). We agreed that 

the union demonstration was protected activity under Section 

7. Id. at 607-08. The Venetian argued, however, that its 

conduct during the demonstration was an exercise of its First 

Amendment right to petition the government. See id. at 611. 

We rejected that theory with respect to two aspects of the 

Venetian’s conduct: its broadcast of an anti-trespass message 

and its attempted citizen’s arrest. See id. at 614. We 

therefore affirmed the Board’s conclusion that the Venetian 

had violated Section 8(a)(1) by engaging in those activities. 

See id.

By contrast, we did not decide whether a third aspect of 

the Venetian’s conduct – its request that the police officers at 

the demonstration issue criminal citations to the 

demonstrators and block them from the walkway – was a 

protected petition because the Board had not previously 

addressed that question. See id. at 610, 614. We therefore 

remanded that question to the Board for consideration in the 

first instance. Id. at 614.

On remand, the Board issued its 2011 Decision and 

Order. Venetian Casino Resort, LLC, 357 N.L.R.B. No. 147 

 

§ 157. Section 8(a)(1) of the Act makes it an “unfair labor practice 

for an employer . . . to interfere with, restrain, or coerce employees 

in the exercise of the rights guaranteed in” Section 7. 29 U.S.C. 

§ 158.
6

(Dec. 21, 2011). The Board surveyed the case law and 

determined that only “petitions that seek the passage of a law 

or rule, or a significant policy decision regarding 

enforcement,” are entitled to protection under the NoerrPennington doctrine. Id. at 3. Applying that standard, the 

Board found that the Venetian’s conduct was not a direct 

petition to government protected by the Noerr-Pennington 

doctrine. See id. at 3-4. The Board concluded that the 

Venetian had committed an unfair labor practice in violation 

of Section 8(a)(1). See id.

The Venetian petitioned this Court for review of the 2011

Decision and Order. The Board cross-applied for 

enforcement of the 2011 Decision and Order.

II

We review the Board’s resolution of constitutional 

questions de novo. See J.J. Cassone Bakery, Inc. v. NLRB, 

554 F.3d 1041, 1044 (D.C. Cir. 2009). Here, we conclude 

that the Board erred in its Noerr-Pennington analysis. The 

Venetian’s request that the police officers at the 

demonstration issue criminal citations to the demonstrators 

and block them from the walkway qualifies as a direct petition 

to government.

A

The First Amendment’s Petition Clause protects “the 

right of the people . . . to petition the Government for a 

redress of grievances.” U.S. Const. amend. I; see generally 

Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2498-2500, 

slip op. at 13-17 (2011) (summarizing scope and history of 

Petition Clause). When “a person petitions the government” 

in good faith, “the First Amendment prohibits any sanction on 
7

that action.” Nader v. Democratic National Committee, 567 

F.3d 692, 696 (D.C. Cir. 2009).

The Noerr-Pennington doctrine implements that general 

principle. 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.” Venetian Casino Resort, LLC v. NLRB, 484 

F.3d 601, 611 (D.C. Cir. 2007); see generally BE&K 

Construction Co. v. NLRB, 536 U.S. 516 (2002); Bill 

Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983); 

United Mine Workers of America v. Pennington, 381 U.S. 657 

(1965); Eastern Railroad Presidents Conference v. Noerr 

Motor Freight, Inc., 365 U.S. 127 (1961).

What constitutes a direct petition to government? As a 

starting point, a petition “conveys the special concerns of its 

author to the government and, in its usual form, requests 

action by the government to address those concerns.” 

Guarnieri, 131 S. Ct. at 2495, slip op. at 7-8. In modern 

usage, “to petition” means to “make a request or supplication 

to,” Oxford English Dictionary (3rd ed. 2005), and the term 

has had that meaning since before the Founding. See 

Guarnieri, 131 S. Ct. at 2499, slip op. at 14 (“[T]he Petition 

of Right of 1628 drew upon centuries of tradition and Magna 

Carta as a model for the Parliament to issue a plea, or even a 

demand, that the Crown refrain from certain actions.”). The 

Supreme Court has specified that, for purposes of the NoerrPennington doctrine, parties exercise their right to petition 

when they “advocate their causes and points of view 

respecting resolution of their business and economic 

interests,” California Motor Transport Co. v. Trucking 

Unlimited, 404 U.S. 508, 511 (1972), or attempt to “influence 

the passage or enforcement of laws,” Noerr, 365 U.S. at 135.
8

Whether conduct constitutes protected petitioning activity 

“depends not only on its impact, but also on the context and 

nature of the activity.” Allied Tube & Conduit Corp. v. Indian 

Head, Inc., 486 U.S. 492, 504 (1988).

Applying those principles, we conclude that the act of 

summoning the police to enforce state trespass law is a direct 

petition to government subject to protection under the NoerrPennington 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.

As the Supreme Court has stated, the Noerr-Pennington 

doctrine protects petitions directed at “all departments of the 

Government.” California Motor Transport Co., 404 U.S. at 

510. And as the Ninth Circuit has persuasively explained, the 

interests embodied by the Petition Clause are “served by 

ensuring the free flow of information to the police.” Forro

Precision, Inc. v. International Business Machines Corp., 673 

F.2d 1045, 1060 (9th Cir. 1982). It “would be difficult indeed 

for law enforcement authorities to discharge their duties if 

citizens were in any way discouraged from providing 

information.” Id. Those considerations support applying the 

Noerr-Pennington doctrine “to citizen communications with 

police.” Id.; see Ottensmeyer v. Chesapeake & Potomac 

Telephone Co. of Maryland, 756 F.2d 986, 993-94 (4th Cir. 

1985).

The Board offers a few responses, but none is persuasive.
9

The Board contends that Noerr-Pennington immunity 

applies primarily to petitions made to public officials in 

service of high-level political or policy-oriented aims. See 

Board Br. at 21 (doctrine applies to “efforts to influence the 

passage or enforcement of laws or a significant policy 

decision”); see also id. at 23 (“political activity designed to 

‘influence public officials’” is typically “immune under 

Noerr-Pennington”); Venetian Casino Resort, LLC, 357 

N.L.R.B. No. 147, at 3 (Dec. 21, 2011) (Noerr-Pennington 

doctrine protects “petitions that seek the passage of a law or 

rule, or a significant policy decision regarding enforcement”). 

By that standard, according to the Board, a property owner’s 

request that police officers on the beat enforce private 

property rights does not count as a petition to government for 

purposes of the Noerr-Pennington doctrine.

The primary authority cited by the Board is the Supreme 

Court’s decision in Allied Tube. That antitrust case involved 

the standard-setting process of a private organization (the 

National Fire Protection Association), whose standards were

in turn frequently adopted by state and local governments. 

486 U.S. at 495. Several members of the organization 

colluded to manipulate the organization into setting favorable 

standards that restrained competition. See id. at 496-97. The 

Court held that such collusion did not constitute either a direct 

petition to government or conduct incidental to a petition. Id.

at 501-02, 504-07. The Court therefore concluded that the 

Noerr-Pennington doctrine did not immunize the colluding

members from antitrust liability. See id. at 509-10.

As support for its theory, the Board picks up on the 

Court’s explanation in Allied Tube that the alleged petitioning 

activity was not an “effort[] to persuade an independent 

decisionmaker.” Id. at 507. But that statement simply 

explains why collusion to manipulate a private organization 
10

into excluding competition is classic anti-competitive 

commercial activity, and not conduct incidental to a petition. 

See id. Nowhere in its opinion does the Supreme Court 

suggest that everyday attempts to influence government 

action – say, by summoning the police – are excluded from 

the Noerr-Pennington doctrine’s ambit. 

The Board also points to Sure-Tan, Inc. v. NLRB as 

evidence that reports of legal violations are not necessarily

petitions to government within the scope of the NoerrPennington doctrine. In Sure-Tan, an employer embroiled in 

a labor dispute reported some of its employees to the 

Immigration and Naturalization Service in retaliation for their 

union activity. See 467 U.S. 883, 886 (1984). The Board 

concluded that the employer had committed an unfair labor 

practice. See id. at 888. Reviewing that decision, the 

Supreme Court held that the employer’s request for 

enforcement of federal immigration laws was not an exercise 

of its First Amendment petitioning right. See id. at 897. The 

Court reasoned that the employer “did not invoke the INS 

administrative process in order to seek the redress of any 

wrongs committed against them. Indeed, private persons”

have “no judicially cognizable interest in procuring 

enforcement of the immigration laws by the INS.” Id.

(citation omitted).

Sure-Tan offers no support for – and indeed contradicts –

the Board’s position. Where employers assert a private 

property right and ask the police to enforce that right against 

demonstrators, employers are seeking “redress of . . . wrongs

committed against them,” to use Sure-Tan’s words. Id.

In short, the Board erred when it determined that the 

Venetian’s request that the police issue criminal citations to 

the demonstrators and block them from the walkway did not 
11

qualify as a direct petition to government protected by the 

Noerr-Pennington doctrine.

B

That said, the Noerr-Pennington doctrine “does not cover 

activity that was not genuinely intended to influence 

government action.” United States v. Philip Morris USA Inc., 

566 F.3d 1095, 1123 (D.C. Cir. 2009) (quoting Allied Tube, 

486 U.S. at 508 n.10) (internal quotation marks omitted). In 

other words, while “genuine petitioning is immune from” 

Section 8(a)(1) liability under the Noerr-Pennington doctrine, 

“sham petitioning is not.” BE&K Construction Co., 536 U.S. 

at 526. A petition is a sham if it is “objectively baseless” and 

is “brought with the specific intent to further wrongful 

conduct through the use of governmental process.” Nader, 

567 F.3d at 696 (internal quotation marks omitted); cf. Octane 

Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 

1757, slip op. at 9-10 (2014).

The Venetian, of course, contends that its request for 

assistance from the police officers at the scene was a valid 

attempt to secure its private property rights.

We will not reach that issue at this time. In its 2011

Decision and Order, the Board never addressed whether the 

Venetian’s attempt to summon the police constituted a sham 

petition. See Venetian Casino Resort, 357 N.L.R.B., at 3 

n.11. Contrary to the Venetian’s claim, the Board did not 

waive reliance on the sham exception; it never had occasion 

to reach the sham exception given its conclusion that the 

Noerr-Pennington doctrine did not apply in the first place. 

We will therefore remand that issue for the Board’s 

consideration in the first instance.
12

III

The Board’s 2005 Decision and Order instructed the 

Venetian to post a remedial notice “in conspicuous places 

including all places where notices to employees are 

customarily posted.” Venetian Casino Resort, LLC, 345 

N.L.R.B. 1061, 1070 (2005). The Board’s 2011 Decision and 

Order also contained a remedial notice requirement, but with 

modified terms. Venetian Casino Resort, LLC, 357 N.L.R.B. 

No. 147, at 4-5 (Dec. 21, 2011). The 2011 Decision and 

Order specified that, in “addition to physical posting of paper 

notices, notices shall be distributed electronically, such as by 

email, posting on an intranet or an internet site, and/or other 

electronic means, if the Respondent customarily 

communicates with its employees by such means.” Id.

The Venetian argues that the 2011 Decision and Order’s

electronic posting requirement was arbitrary and capricious, 

an abuse of discretion, and in excess of the Board’s authority 

on remand. But we have already determined that we must 

vacate the Board’s 2011 Decision and Order and remand this 

case to the Board for further proceedings. As a result, we 

need not decide whether the Board erred by imposing an 

electronic posting requirement in the 2011 Decision and 

Order.

* * *

We grant the Venetian’s petition for review, deny the 

Board’s cross-application to enforce its order, and vacate the 

Board’s order. Because the Board did not address whether 

the Venetian’s petition was a sham, we remand so that the 

Board may consider that question in the first instance.

So ordered.