Calling the Police: Can This Be an Unfair Labor Practice?

Four years ago, the NLRB issued a decision finding, among other things, that a Las Vegas hotel interfered with protected employee rights by summoning the Las Vegas police and requesting that they issue trespass citations to employees who were picketing on a sidewalk in front of the hotel. The DC Circuit Court of Appeals denied enforcement of this order and sent the case back to the Board to consider whether the Board’s order violated the hotel’s constitutionally-protected right to petition the government directly. On remand, the Board decided to withdraw its finding on this issue based “on the particular circumstances of this case,” thereby leaving the issue open for consideration in a future case. Venetian Casino Resort, 354 N.L.R.B. No. 9 (April 29, 2009). The Board reiterated its related finding that the employees unlawfully were prevented from picketing by the hotel (irrespective of whether the hotel called the police) because the location of the picketing was a public sidewalk, and concluded that since the employee rights had been protected effectively by the portion of its order that prohibited the hotel from limiting picketing, it was unnecessary at this juncture for the Board to consider whether the hotel had a right to summon the police. That issue, which sits at the intersection of constitutional and NLRB law, remains open at the Board and will presumably be addressed in a subsequent decision.