[00:00:01] Speaker 00: Case number 12-1021 at L, Venetian Casino Resort, LLC, Petitioner vs. National Labor Relations Board. [00:00:09] Speaker 00: Mr. Monnier and Mr. Wakefield, Petitioner, Venetian Casino Resort, LLC, and Mrs. Isbell for the respondent. [00:00:30] Speaker 03: Good morning, Your Honors, and may it please the Court, John Manier for the petitioner. [00:00:36] Speaker 03: Congress shall make no law abridging the right of the people to petition the government for redress of grievances. [00:00:46] Speaker 03: That is exactly what the Venetian did in this case. [00:00:49] Speaker 03: Its grievance was that demonstrators were using the Venetians' private property to hold their demonstration. [00:00:57] Speaker 03: Its petition was a direct request to the government, specifically the police, who were already present at the demonstration to keep the peace. [00:01:06] Speaker 04: How are you petitioning police officers on the scene or redress of a grievance when you've already met with the DA and they've said that they don't believe that there's a trespass. [00:01:24] Speaker 04: You've met with senior police officials. [00:01:28] Speaker 04: And they said that they don't believe there's a trespass. [00:01:31] Speaker 04: And then you learn, on top of that, that there's a permit that the demonstrators have obtained. [00:01:38] Speaker 04: I mean, even if all of those people were wrong, even if the permit was issued illegally, how are you redressing for the grievance when you say arrest these people for criminal trespass? [00:01:50] Speaker 03: Well, Your Honor, that would go to perhaps the futility of the petition, the merits of the petition, the fact that perhaps it was moot at that point or not going to be a viable act. [00:02:08] Speaker 03: But that doesn't make it any less a petition. [00:02:13] Speaker 03: You could argue that it was a sham petition, but that was not argued by the board. [00:02:18] Speaker 03: It's not raised in their decision. [00:02:20] Speaker 03: They've essentially conceded that the Venetian was making a reasonable effort to preserve its private property rights. [00:02:29] Speaker 03: Now, ultimately, the Venetian was not successful in those efforts, but there were still good faith efforts. [00:02:35] Speaker 03: It doesn't make it any less a petition, the fact that that may not have been their first petition on the matter. [00:02:44] Speaker 04: previously issued some sort of an order saying, you know, allow this demonstration to happen, then the Venetian would be within its First Amendment rights when the demonstration was occurring to ask the local police to arrest the people for trespass. [00:03:05] Speaker 03: In that case, it might have been within its rights, it might not have been within its rights. [00:03:09] Speaker 03: That's a hypothetical. [00:03:10] Speaker 03: It would depend on the facts. [00:03:12] Speaker 04: Well, I gave you the facts. [00:03:14] Speaker 03: Yes. [00:03:14] Speaker 03: OK. [00:03:15] Speaker 03: Well, if there was a final order by the board, if there had been a final ruling, and there was no viable chance for relief, it was a done deal, then the argument would be that the petition is a sham, that it has [00:03:33] Speaker 03: No, it is objectively baseless at that point, and that it was brought for an improper purpose, arguably. [00:03:41] Speaker 03: I'm going to refer that within your hypothetical. [00:03:44] Speaker 03: If that were the case, it would be a sham petition. [00:03:47] Speaker 03: And it comes within the sham petitioning exception. [00:03:50] Speaker 03: And it's not protected. [00:03:52] Speaker 03: That's well-settled case law. [00:03:53] Speaker 03: But that's not our case. [00:03:55] Speaker 03: The board hadn't spoken. [00:03:57] Speaker 03: The courts hadn't spoken. [00:03:58] Speaker 03: The police had said they weren't going to arrest. [00:04:01] Speaker 03: But that certainly wasn't a final word. [00:04:04] Speaker 03: And at that point, the issue had not been resolved. [00:04:10] Speaker 03: And again, I have to emphasize that the Board did not say that this petition was a sham. [00:04:16] Speaker 03: It is a petition. [00:04:17] Speaker 03: You know, the Ninth Circuit has said in 4.0 precision, a case that we've cited, and that the Board has cited, that making citizen communications with police are protected under the Petition Clause. [00:04:33] Speaker 03: It isn't limited to certain petitions as long as you're trying to redress a grievance that you have. [00:04:39] Speaker 03: It is a petition. [00:04:40] Speaker 03: It is protected. [00:04:42] Speaker 03: This is not a case like Shurtan, which the board has relied on. [00:04:46] Speaker 03: In Shurtan, the employer basically was acting as what the law might call an officious intramedler. [00:04:54] Speaker 03: It had no interest in the immigration violations of its employees. [00:05:00] Speaker 03: That case was issued at a time when immigration law [00:05:06] Speaker 03: federal law did not make it illegal for employers to employ undocumented workers. [00:05:12] Speaker 03: And the employer knew the workers were undocumented. [00:05:16] Speaker 03: They had acquiesced to it. [00:05:17] Speaker 03: They were paying them. [00:05:18] Speaker 03: They only got upset when the workers tried to unionize and got involved into an election campaign. [00:05:24] Speaker 03: Then they wanted to try to blow the whistle. [00:05:28] Speaker 03: But they had no personal interest [00:05:31] Speaker 03: in that issue. [00:05:33] Speaker 03: The Supreme Court saw right through it and held that that was not protected. [00:05:38] Speaker 03: Also, that activity was discriminatory. [00:05:41] Speaker 03: That was an 883 case. [00:05:43] Speaker 04: I guess what I'm trying to get at is, I mean, these cases seem to be very fact and context specific. [00:05:53] Speaker 04: And the context here is that, okay, you've met with the authorities who would prosecute [00:06:02] Speaker 04: You've met with senior police officials. [00:06:05] Speaker 04: Where did they have a permit? [00:06:07] Speaker 04: So exactly how is it that you're petitioning when you tell the cop there, well, arrest these people for trespass despite the fact that all those things have happened and despite the fact that these people have a permit, whether the permit was properly issued or not, [00:06:25] Speaker 04: You know, they've got one. [00:06:27] Speaker 04: So how, what are you petitioning by saying arrest them for trespass when all of those things have transpired and you know that they have occurred? [00:06:36] Speaker 03: Well, Your Honor, I think that, I mean, there is, it is fact-intensive. [00:06:40] Speaker 03: You are correct. [00:06:41] Speaker 03: I would completely agree with that. [00:06:43] Speaker 03: But what the board is trying to do, because this isn't, they've conceded effectively that this was not a sham petition. [00:06:52] Speaker 03: What they have tried to do, and what your question is directed at, is take it outside of the definition of petitioning completely and say it is actually not a petition. [00:07:02] Speaker 03: But definitionally, it doesn't make it any less a petition the fact that they may have previously petitioned in this case. [00:07:11] Speaker 03: It doesn't mean it's not a petition. [00:07:13] Speaker 03: To go back to your hypothetical, if the board had already definitively ruled in this case, [00:07:19] Speaker 03: or if the courts had ruled, as they eventually did, that the union demonstrators had a right to demonstrate. [00:07:27] Speaker 03: That came a good at least two years after this petition was made. [00:07:33] Speaker 03: If that had been the case, it would still be a petition. [00:07:36] Speaker 03: But it would be a sham petition. [00:07:39] Speaker 03: Or maybe it would be like the petition in shirthand. [00:07:42] Speaker 03: But it would still be a petition. [00:07:43] Speaker 03: You wouldn't be defining it out of the definition of petition. [00:07:47] Speaker 04: But don't you have to be petitioning in some sort of way that we're... [00:07:52] Speaker 04: you know, there's a connect of some sort between who you're petitioning and what you're asking for and what the, you know, either potential relief is or reasonable relief is. [00:08:07] Speaker 04: You can't just, you know, call any officer and make any request or arrest and say, oh, you know, my activities are immune because I'm petitioning the government. [00:08:22] Speaker 03: At the risk of being overly repetitive, I would say that, again, what you just said would be a sham. [00:08:28] Speaker 03: And our case was not found to be a sham. [00:08:31] Speaker 03: And it doesn't make it any less a petition the fact that there have been previous petitions. [00:08:36] Speaker 03: But maybe it was as effective as banging your head against a wall. [00:08:40] Speaker 03: We had made different arguments that this was part of an overall strategy to argue that, to try to obtain an injunction. [00:08:50] Speaker 03: And so the reason that they asked again wasn't because they were expecting a different answer. [00:08:56] Speaker 03: It was because they thought that they needed to exhaust any possible remedies, arguably, [00:09:04] Speaker 03: in order to show that there was no other remedy other than an injunction. [00:09:09] Speaker 03: So I mean, that's the real reason why they did that in this case. [00:09:13] Speaker 04: You know, greatly, the ALJ said that he couldn't find that they weren't acting reasonably. [00:09:18] Speaker 04: Right. [00:09:19] Speaker 04: I just don't understand kind of what the petition was. [00:09:23] Speaker 03: It's a direct communication to the police to try to eject and cite the trespassers. [00:09:29] Speaker 03: The fact that they didn't believe the officers would grant the petition, and in fact had been basically told in advance that it wouldn't be granted, doesn't make it a non-petition. [00:09:40] Speaker 03: You would then have to move into whether it's a sham, and that's already been determined that wasn't the case. [00:09:45] Speaker 02: I want to ask you about a slightly different issue, which is the electronic posting remedy. [00:09:52] Speaker 03: And that's my colleague, Mr. Wakefield, if I can defer to him right now. [00:09:56] Speaker 03: And then I'll reserve any time that I have for rebuttal. [00:09:58] Speaker 03: I want to also clarify that I think we may have goofed up on the timing, and it added up to 13. [00:10:03] Speaker 03: We did want 15 and reserve some time for rebuttal. [00:10:06] Speaker 03: So I'll let Mr. Wakefield take those questions. [00:10:08] Speaker 03: Thank you so much. [00:10:14] Speaker 06: May it please the court, Matthew Wakefield for Petitioner Venetian Casino Resort. [00:10:19] Speaker 06: The board had no jurisdiction to modify the remedy in this case after the court remanded to the board. [00:10:25] Speaker 06: The sole question, whether summoning the police was protected by the North Pennington Dockery. [00:10:30] Speaker 02: Well, before you get to the board's jurisdiction, my question is, the board says this isn't right because we haven't imposed anything. [00:10:41] Speaker 02: Why do you think it is right? [00:10:43] Speaker 06: because in fact that the board has issued a final order in this case, and that order includes the original remedy plus the additional remedy, the additional remedy being the electronic communication [00:10:58] Speaker 06: with the Venetians employees and our position is that the board had no jurisdiction when the case was remanded back to the board. [00:11:08] Speaker 06: It was solely on the single constitutional issue and the board did not have the opportunity to then revisit any part of the [00:11:18] Speaker 06: remainder of the case and modified the remedy. [00:11:21] Speaker 02: When the board added that on, did you seek reconsideration? [00:11:24] Speaker 06: No, we did not seek reconsideration because we didn't believe it was necessary because again, the board didn't have the authority to do that. [00:11:36] Speaker 06: Even under this court's jurisprudence, where a motion for reconsideration would be simply an empty formality, there's no necessity to do so. [00:11:51] Speaker 06: In fact, in the Jake Bassini case, which the board was simply adding that new remedy on from the year before, that case had been fully argued. [00:12:02] Speaker 06: There was a majority opinion, there was a dissent, and the same result was added in this case. [00:12:11] Speaker 06: Had the board in this case wanted to add that remedy, it should have sought that back when the case was before the board in 2005, before it came to this court in 2007. [00:12:22] Speaker 06: So the last opportunity for the general counsel of the board to seek that electronic remedy was to file a motion for reconsideration within 28 days of the board's 2005 decision. [00:12:35] Speaker 06: The board can't be allowed to simply, once it gets a case back on a single narrow issue that this court ruled on, it can't be allowed to simply take it and then add on other things that it didn't have authority to do. [00:12:54] Speaker 06: But as to the actual electronic remedy itself, we think that that is clearly a problem. [00:13:05] Speaker 06: For the Board to try to get something like that added in this case, as this Court has articulated in the United Food and Commercial Workers Union case, the Board must prove that the original remedy was clearly inadequate. [00:13:22] Speaker 06: And it hasn't done so. [00:13:24] Speaker 06: There's a number of problems with the electronic remedy itself. [00:13:28] Speaker 06: For example, the board has in their electronic remedy that the respondent [00:13:36] Speaker 06: is to communicate however it customarily communicates with employees. [00:13:42] Speaker 06: Well, to use the phrase customarily in terms of a posting is very simple and straightforward. [00:13:48] Speaker 06: We know in any business where the posters are hung on the wall. [00:13:51] Speaker 06: But when we're talking about other types of communication, for example, an invitation to the holiday party, is that a customary communication? [00:14:01] Speaker 06: or telling someone what their work schedule is the next week, is that the type of customary communication that the board is talking about? [00:14:08] Speaker 06: There's obviously mandatory types of communications, work rules, schedules, and then permissive types of communications that an employer has with employees. [00:14:17] Speaker 06: And we think that the standard that the board has adopted is too vague to be implemented and is going to only lead to additional problems. [00:14:25] Speaker 04: Isn't that all the more reason why we should have sought reconsideration so that the board could have potentially clarified or, I mean, we can't, we shouldn't be in the business of figuring out what customarily means, should we? [00:14:41] Speaker 06: Well, I think we believe your honor that is a basis for not enforcing the board's order because of that vague and ambiguous standard that the board has established and so It's not something that should have should be the basis for a motion for reconsideration because clearly the board would not have [00:15:03] Speaker 06: done anything different in this case. [00:15:05] Speaker 06: I mean, the board, when they established that in 2010, they've just simply added that onto every case. [00:15:11] Speaker 06: That is now their standard remedy. [00:15:14] Speaker 06: So the board's not going to reconsider it until this court or another court tells the board that it's not going to enforce such an order. [00:15:22] Speaker 04: But reconsideration could also mean, well, tell us what. [00:15:26] Speaker 04: We don't know what that means, because it's vague. [00:15:28] Speaker 04: And they can say, OK, we'll tell you what it means. [00:15:30] Speaker 04: You just have to, if you have an email address on file, then send it as an email attachment, and that's it. [00:15:39] Speaker 06: And the board has taken the position, in its brief in this case, [00:15:45] Speaker 06: those things are to be addressed in a subsequent hearing. [00:15:49] Speaker 06: And we believe that, obviously, that's going to result in even more additional problems as we set forth in our brief. [00:15:56] Speaker 05: Can I just ask a roadmap question so I'm clear on this? [00:15:59] Speaker 05: If we agree with your co-counsel on the first point, and I'm not saying I do, just if we do, do we not, we don't get to this issue, correct? [00:16:08] Speaker 05: That's correct, Your Honor. [00:16:09] Speaker 05: Okay. [00:16:11] Speaker 05: I see my time is up. [00:16:12] Speaker 05: Thank you. [00:16:14] Speaker 02: Thank you. [00:16:22] Speaker 01: May it please the court, Kelly Isbell here on behalf of the National Labor Relations Board. [00:16:28] Speaker 01: The company concedes that by asking the police to cite and remove demonstrators, it violated the National Labor Relations Act. [00:16:37] Speaker 01: And here it concedes that it didn't ask those policemen to cite and remove demonstrators because it actually thought those policemen could do something. [00:16:45] Speaker 01: It knew those policemen could not do anything about it. [00:16:49] Speaker 01: The board, of course, found that by asking the cops on the beat to do something they had no authority to do, that the Venetian was not engaged in direct petitioning under the Act. [00:17:01] Speaker 05: Doesn't that sound more like a sham? [00:17:03] Speaker 01: Well, Your Honor, in this particular case, of course, the board did not reach, did not do a sham analysis. [00:17:09] Speaker 01: And here's why. [00:17:11] Speaker 01: In the context of North Pennington, there have been very few cases that apply North Pennington to the National Labor Relations Act. [00:17:21] Speaker 01: Bill Johnson's in B, E, and K, and those are in the context of lawsuits. [00:17:25] Speaker 01: And the sham analysis set out in B, E, and K [00:17:28] Speaker 01: talks about whether the lawsuit is objectively based and for a subjectively bad reason. [00:17:33] Speaker 01: In the context of removing protesters, lawful, peaceful protesters from property you don't have a right to, the board does not do a motive analysis. [00:17:42] Speaker 01: It doesn't have to. [00:17:43] Speaker 01: For 75 years it has not done a motive analysis. [00:17:46] Speaker 01: If you don't have the right to remove those protesters, you violate the National Legal Relations Act. [00:17:51] Speaker 01: The other issue is that although the company says they had an objective basis, [00:17:57] Speaker 01: because the lawsuit was still pending in the Ninth Circuit. [00:18:00] Speaker 01: In the removal context, under 8A1, they did not have an objective basis. [00:18:05] Speaker 01: As this Court pointed out in its remand decision, if you remove protesters, you have to have the right at the time you try to eject them. [00:18:14] Speaker 01: If you don't have the right at the time you try to eject them, [00:18:17] Speaker 01: you violate 8A1. [00:18:19] Speaker 01: So in this particular context, the analysis around objective basis doesn't really make any sense. [00:18:26] Speaker 01: And as the Court cautioned in the remand decision, expanding North Pennington to the labor context can be problematic because you can eviscerate [00:18:36] Speaker 01: employees' rights under Section 7. [00:18:38] Speaker 01: And remember, the union had a permit, and they were exercising their rights under the Act and their First Amendment rights to engage in a lawful peaceful protest. [00:18:46] Speaker 05: So the Ninth Circuit, you're familiar, of course, with the 4.0 case, which said that North Pennington does apply to petitions to the police, said that the public policy is served by ensuring the free flow of information to the police, [00:19:04] Speaker 05: Although somewhat different from those served by Nora Pennington are equally strong, difficult indeed for law enforcement authorities to discharge their duties if citizens were in any way discouraged from providing information and then apply Nora Pennington to. [00:19:19] Speaker 05: conversations with the police. [00:19:22] Speaker 05: So why should we disagree with the Ninth Circuit? [00:19:28] Speaker 01: You don't have to disagree with the Ninth Circuit. [00:19:29] Speaker 01: The Ninth Circuit based its decision on strong public policy interests in encouraging the free flow of information from the citizen to police. [00:19:40] Speaker 01: They conceded they were not trying to impart any information to the police. [00:19:44] Speaker 01: If the union had been blocking traffic, if they'd been throwing rocks, that's a completely different case. [00:19:48] Speaker 01: You might then be asking the police to do something about it. [00:19:51] Speaker 01: That's not here. [00:19:52] Speaker 01: They had met with a district attorney more than once and with police officials to ask them to remove and cite these protesters. [00:19:59] Speaker 01: And every time they asked, they got the answer from the police officials who had the authority to make the decision. [00:20:05] Speaker 01: Those cops on the beat were not the officials with the authority to make the decision. [00:20:09] Speaker 05: Okay, and I'm still, this will be repetitive, I'm going back then to my first question. [00:20:13] Speaker 05: Why, it still sounds like a petition, but a petition that's not going to succeed. [00:20:18] Speaker 01: I think in this, in the labor context, having a sham analysis here related to police doesn't really work. [00:20:30] Speaker 01: I mean, there is no sham analysis that's been devised. [00:20:33] Speaker 05: Why? [00:20:33] Speaker 05: When you say they petitioned the police even though they knew there was no chance of the police responding, which, by the way, then there's separate issues there. [00:20:45] Speaker 05: But anyway, that's still a petition. [00:20:49] Speaker 05: But it's a sham petition because it's objectively unreasonable. [00:20:53] Speaker 05: to and subjectively unreasonable to seek the police's aid in those circumstances when you've been told you can't get the police's aid. [00:21:02] Speaker 01: If you look for example at the Hilton case, which describes [00:21:08] Speaker 01: Petitioning government employees, you need to petition the person who has the authority. [00:21:12] Speaker 01: Not every government employee is a petition receiver. [00:21:16] Speaker 01: Not every request to a government employee is a petition. [00:21:21] Speaker 01: And for 75 years, the board and the courts have found that if you try to eject peaceful, lawful protesters, you're violating the national labor legislation. [00:21:29] Speaker 05: Well, there's not a lot of precedent on this precise North Pennington issue. [00:21:32] Speaker 01: There is not. [00:21:33] Speaker 05: In the court system. [00:21:34] Speaker 01: Even on just calling the police, let's take it out of the labor context, there are very, very few cases that talk about calling the police as being a petition. [00:21:44] Speaker 01: And here, what you're suggesting is that every call to police for every lawful demonstration [00:21:51] Speaker 01: should be a petition. [00:21:53] Speaker 05: What's the harm? [00:21:55] Speaker 01: It chills employees' rights to protest. [00:21:59] Speaker 01: If every time someone's on a public sidewalk, the employer can lawfully call the police, that is a very serious evisceration of rights. [00:22:07] Speaker 05: And you don't think the sham can [00:22:10] Speaker 05: can help maintain the line between appropriate calls and inappropriate calls to the police. [00:22:16] Speaker 05: Because you conceded, I think, there could be times when it's appropriate for the employer to call the police. [00:22:21] Speaker 01: And those are times when the board finds it's not an 881 violation. [00:22:24] Speaker 01: We don't even get to the First Amendment. [00:22:26] Speaker 01: If the union's blocking traffic and you call the police, [00:22:29] Speaker 01: Unless, you know, those are just the bare facts. [00:22:31] Speaker 01: It's not an 81 violation. [00:22:32] Speaker 05: But aren't there going to be a lot of gray areas? [00:22:34] Speaker 05: That's going to be the... In the real world, as you know better, there are going to be a lot of gray areas where one side thinks it's doing nothing problematic and the employer, I mean, the employees think they're doing nothing problematic and the employer thinks they are. [00:22:48] Speaker 01: That's true. [00:22:50] Speaker 01: And when the board gets those cases, it looks to state law to determine who had the right to the sidewalk. [00:22:57] Speaker 01: And if the employer didn't have the right to the sidewalk, and they remove those or try to remove those protesters, it's an 8-A-1 violation. [00:23:04] Speaker 05: The problem I have is to rule your way, I think. [00:23:08] Speaker 05: I have to say that North Pennington doesn't apply to calls to the police. [00:23:12] Speaker 01: I don't think you do, Your Honor. [00:23:14] Speaker 01: And I think the Board was very careful not to say that all calls to the police are not immune under North Pennington. [00:23:22] Speaker 01: This is a very specific, fact-intensive case. [00:23:26] Speaker 01: And under AllyTube, I would suggest you look at the context and nature of this particular dispute. [00:23:31] Speaker 01: The Board is not saying all calls to the police are not protected. [00:23:34] Speaker 04: How would the board view factual scenario if the call were, you know, these people are getting out of hand and there's pushing and shoving and rocks being thrown or whatever. [00:23:49] Speaker 04: And that were what the call to the police was about. [00:23:55] Speaker 04: How would the board view that? [00:23:58] Speaker 01: Of course, as you know, I can't exactly predict what they'll say, but on those facts, it's not an 8-8-1 violation. [00:24:02] Speaker 01: We never get to the First Amendment because the board would not find a violation of the National Labor Relations Act. [00:24:08] Speaker 01: You can call the police to protect your property. [00:24:10] Speaker 01: You can call the police if the union protesters infringe on your property. [00:24:14] Speaker 01: But if they're on the public sidewalk and they're peaceful and lawfully demonstrating, you can't eject them. [00:24:20] Speaker 01: And that's what this case is about. [00:24:22] Speaker 01: And remember, as you pointed out in your remand decision, you have to have the right at the time. [00:24:28] Speaker 01: The fact that they thought they had the right and were going to raise it in the Ninth Circuit under the National Labor Relations Act is irrelevant. [00:24:36] Speaker 01: And the Supreme Court cautioned in B, E, and K that considerations under the Act, the National Labor Relations Act, are different than those in the antitrust context. [00:24:45] Speaker 01: It would be very difficult to just take the antitrust sham analysis and plop it down on this situation when, as I've explained, the board doesn't make [00:24:55] Speaker 01: motive determinations in these cases and the objective basis analysis would be different here than it would be in the antitrust context because you don't have to, as long as you don't have the right at the time, what you think you have is irrelevant. [00:25:10] Speaker 02: So are you saying you could never really have a bright line here because it would sort of depend, you know, in other words, if you call the police you are taking the chance that you are violating the act because [00:25:25] Speaker 02: you know, they may read the facts differently than you do. [00:25:29] Speaker 01: That's true. [00:25:29] Speaker 01: And that happens in a lot of labor cases. [00:25:33] Speaker 01: If you, for example, make unilateral changes to a contract, you're sort of, even if you believe you can because the union has no more support, you're taking that on yourself. [00:25:45] Speaker 01: It might turn out that you're right and you don't have [00:25:48] Speaker 01: You don't violate the act. [00:25:49] Speaker 01: But it also might turn out that you couldn't make those unilateral changes. [00:25:51] Speaker 01: So it happens a lot. [00:25:52] Speaker 02: But the difference here would be that perhaps you're infringing on the First Amendment right, whereas in the other circumstance, it would just be a legal right, perhaps. [00:26:02] Speaker 01: Right. [00:26:03] Speaker 01: And if the employer does not have the right, they are also infringing on the Union's First Amendment rights. [00:26:09] Speaker 01: I mean, the Union also has the right to protest. [00:26:13] Speaker 04: What happens in the case where, say, there's a strike in a picket line by a union, and there are workers who are crossing the picket line, and the employer says, you know, the union's making physical threats to harm, you know, people crossing the picket line. [00:26:35] Speaker 04: How does Nora Pennington fit into that analysis? [00:26:39] Speaker 01: I think we probably get back to where we were before it doesn't, because if there are actual threats against those strike, the line crossers, there's no 81 violation. [00:26:51] Speaker 01: And if there are actual threats, we don't get to the First Amendment. [00:26:54] Speaker 01: We don't find a violation of the National Labor Relations Act. [00:26:56] Speaker 04: What if the board finds that, you know, they called and said that there were threats, but, you know, we hear all the evidence and we conclude that, you know, there weren't any threats. [00:27:06] Speaker 04: They made that up. [00:27:08] Speaker 01: then that might be a harder case. [00:27:12] Speaker 01: The board might very well find that if they had a reasonable basis, that it's... I don't know. [00:27:19] Speaker 01: This is the very first North Pennington case. [00:27:21] Speaker 01: You would... North Pennington, 1960s, this is the first one. [00:27:25] Speaker 05: So... That's good. [00:27:26] Speaker 05: In that sense... So have fun with it. [00:27:30] Speaker 05: But, and I hesitate to suggest another round of this litigation, but analytically it does seem cleaner, clearer to say Noor Pennington generally can apply to calls to the police, but there may be circumstances where it's a sham that probably map very well onto what you're talking about in terms of general [00:27:54] Speaker 05: labor law principles. [00:27:56] Speaker 05: So just hypothetically, and I'm not saying I'm there, but if I conclude that North Pennington does apply to calls to the police and think therefore we have to vacate and remand, what could happen on the remand? [00:28:08] Speaker 01: Well, I would ask that you do remand for the board to get the first crack at trying to decide what the correct analysis would be, because as I've discussed, B, E, and K doesn't really work. [00:28:17] Speaker 01: So what would happen on the remand? [00:28:18] Speaker 05: Who knows? [00:28:19] Speaker 01: Right. [00:28:20] Speaker 05: Right, but some, okay. [00:28:21] Speaker 05: But some, okay, that answers it. [00:28:26] Speaker 01: Would you like to discuss electronic notice posting? [00:28:41] Speaker 03: Thank you, Your Honors. [00:28:41] Speaker 03: Mr. Wakefield has graciously agreed to cede his rebuttal time to me. [00:28:45] Speaker 03: So I just want to address some points that counsel just made. [00:28:50] Speaker 03: Let me be clear. [00:28:51] Speaker 03: We have made no concessions in this case other than those that we are required to make under the law of the case doctrine in terms of holding this court previously made when I argued before this court nine years ago. [00:29:05] Speaker 03: We've not conceded that we violated the NLRA. [00:29:07] Speaker 03: That's why we're here, because we're saying that we didn't. [00:29:10] Speaker 03: Now, if we were in a world where there was no First Amendment and no right to petition in that world, I can see how this would be deemed an NLRA violation. [00:29:19] Speaker 03: But again, that's the basis of our doctrine. [00:29:22] Speaker 03: Our argument is that this falls into the [00:29:24] Speaker 03: nor Pennington Doctrine, and that there is no sham here. [00:29:29] Speaker 03: I want to make clear, too, that while the board is entitled to deference on how to interpret the NLRA, it is not entitled to deference on how to interpret the Constitution in general or the First Amendment Doctrine in particular. [00:29:43] Speaker 03: And I think this argument gives a very good illustration of why that's not the case. [00:29:48] Speaker 03: The fact that a petition may not succeed does not make it any less a petition. [00:29:52] Speaker 03: And let me borrow from the argument about the electronic posting notice. [00:29:56] Speaker 03: Let's assume the court were to agree with our position that it would have been futile for the Venetian to do a motion for reconsideration, and therefore it was not required for exhaustion purposes. [00:30:09] Speaker 03: But then let's suppose that the Venetian had decided to do that anyway and make the motion for reconsideration, even though it knew that it had a 100% chance of failure because Jay Pacini was extremely clear that it's going to require electronic posting in all cases. [00:30:24] Speaker 03: It wouldn't make the motion for reconsideration any less a petition. [00:30:27] Speaker 03: It wouldn't make it unprotected activity. [00:30:30] Speaker 03: Now, I can't imagine how it would violate the NORA, but it's still a petition. [00:30:33] Speaker 03: The lawyers make petitions all the time that they know are going to fail. [00:30:39] Speaker 03: And they do it mainly because they either out of an overbundance of caution, which is very much a province of our profession, or because they really think they have to do it in order to preserve a certain right. [00:30:53] Speaker 04: There are petitions and there are petitions, though. [00:30:57] Speaker 04: I mean, a petition to a police officer saying, arrest that man, deprive him of his liberty, put him in handcuffs and take him away and put him in a secure jail cell. [00:31:11] Speaker 04: is a lot different than filing in the middle of a union protest demonstration is a lot different than filing some piece of paper with the war. [00:31:23] Speaker 03: No, sir. [00:31:25] Speaker 03: Asking someone for an arrest is a very serious matter. [00:31:28] Speaker 03: Now, this petition, there was the citizen's arrest, which has already been decided in this case. [00:31:33] Speaker 03: So that's not an issue before this court. [00:31:36] Speaker 03: It's the request of the police. [00:31:38] Speaker 03: And my understanding, it was only to cite and eject [00:31:41] Speaker 03: what the Venetian believed were the trespassers. [00:31:45] Speaker 03: Mrs. Bell called it a public sidewalk. [00:31:47] Speaker 03: Again, that was the subject of the litigation. [00:31:49] Speaker 03: Our view was that it wasn't public. [00:31:51] Speaker 03: We had the right to exclude. [00:31:53] Speaker 03: We had substantial legal basis for that argument. [00:31:56] Speaker 03: The Ninth Circuit even agreed with that. [00:31:58] Speaker 03: They just said that it was a public forum for a bunch of issues that aren't really pertinent to our discussion. [00:32:03] Speaker 03: But this wasn't the same as if we had said, you know, they're trespassing at Caesar's Pax, which obviously the Venetian would have no concern with, or if they're jaywalking across Las Vegas Boulevard, or that they're conducting their picket across the street, but it's obviously directed at the Venetian. [00:32:19] Speaker 03: If the Venetian had called the police in those circumstances, then clearly there would have been no objective basis, because the Venetian wouldn't have been trying to assert its own rights in its private property. [00:32:29] Speaker 03: it would have simply been trying to interfere with the union demonstration, and therefore the sham petitioning doctrine would have applied. [00:32:37] Speaker 03: And while there is no prior case that is held that [00:32:41] Speaker 03: that basically weds the Forco case or Foro case with the NLRA context. [00:32:49] Speaker 03: There is case law on sham petitioning in the NLRA. [00:32:53] Speaker 03: Bill Johnson's and B, E, and K are North Pennington cases. [00:32:57] Speaker 03: They apply to lawsuits. [00:32:59] Speaker 03: that were alleged to have been unfair labor practices. [00:33:03] Speaker 03: So the only thing different about this case is that it applies specifically to police activities. [00:33:08] Speaker 03: And if you have malicious calls for unfounded arrests or things like that that an employer does, that's going to fall within the sham petitioning doctrine. [00:33:18] Speaker 03: There's no basis for a different conclusion. [00:33:21] Speaker 03: And it's interesting, because on the one hand, the board says that the sham analysis should not apply to the NLRA. [00:33:29] Speaker 03: And I'm simply not persuaded that there's anything unique about the NLRA that changes the constitutional sham petitioning analysis that applies to other statutes, including the NLRA under Bill Johnson's and BE and K. And to the extent that the board is also saying now, [00:33:45] Speaker 03: that we had no objective basis to contact the police and ask them to site and inject the demonstrators. [00:33:53] Speaker 03: That argument's about 16 years late in this case. [00:33:57] Speaker 03: This demonstration occurred in 1999, and today is the first time that they have said that we had no objective basis. [00:34:06] Speaker 03: We would obviously prefer a remand to enforcement of the decision. [00:34:10] Speaker 03: But the board had its chance. [00:34:13] Speaker 03: They already had one remand. [00:34:14] Speaker 03: And we made these arguments to the board. [00:34:17] Speaker 03: And I think it's time to just say that the board got it wrong. [00:34:21] Speaker 03: I think the court's certainly capable of crafting a decision that's not going to encourage employers to just maliciously call up and try to arrest people for no reason. [00:34:31] Speaker 03: But if the employer, and again, this is a very unique case. [00:34:35] Speaker 03: There was a lot of litigation going on about the Venetians' property rights, and they filed a whole big federal lawsuit about this, and they thought that asking the police, they knew the police would say no, but they thought that asking them would help them to show that they were entitled to an injunction because there was no adequate remedy at law. [00:34:56] Speaker 03: And lawyers, we know that it's difficult to get injunctions. [00:34:59] Speaker 03: And you have to show that injunction is really the only remedy. [00:35:04] Speaker 03: And so they thought that. [00:35:05] Speaker 03: Now, this court actually disagreed with that, in a sense, when it issued its last decision, that that was really an adequate basis. [00:35:15] Speaker 03: But it was still good faith. [00:35:16] Speaker 03: I mean, they made it wrong. [00:35:17] Speaker 03: They lost. [00:35:18] Speaker 02: Thank you, counsel. [00:35:19] Speaker 03: Thank you so much, your honor. [00:35:20] Speaker 02: Your case will be submitted.