The First Amendment to the United States Constitution protects the right of the people “to petition the Government for a redress of grievances.”  Courts have concluded that when a person petitions the Government in good faith, the First Amendment prohibits any sanction for that conduct.  Applied in the labor law context, therefore, employer conduct that would other­wise be illegal may be protected by the First Amendment, and thus legal, when it is part of a direct petition to the Government.

In a case involving a Las Vegas hotel, a federal court of appeals recently applied these concepts.  As a result of what was then an ongoing battle between the hotel and two different labor unions, the labor unions decided to hold a large demonstration on one lane of the road in front of the hotel, and on a temporary walkway adjacent to the road.  As over a thousand demonstrators marched on the walkway, the hotel asked police officers to issue criminal citations to the demonstrators and to block them from the walkway.  The hotel maintained, based upon a property quirk arising from the construction of the hotel, that the walkway on which the demonstrators were marching was private property.

Examining the constitutional question of whether the request to police officers present on the scene was a “petition” to the Government, the Court held that it was.  “Requesting police enforcement of state trespass law is an attempt to persuade the local government to take particular action with respect to a law.”  Accordingly, even if the request to the police officers was illegal under the NLRA, it would be protected by the First Amendment.

The Court, however, sent the case back to the NLRB to determine whether the hotel’s request was a “sham” petition.  If so, it would not be protected.  The NLRB had not addressed this question because it held that the request to enforce the trespass law was not a petition.  Therefore, the factual record was inadequate for the Court to decide the question.

The Court’s holding is significant for legal professionals dealing with labor/management conflicts.  The holding could be applied to not only union demonstrations, but also potentially union strikes and other forms of union protest.

But, two important caveats are necessary.  First, the facts here are somewhat unique.  It was the property quirk that arose during construction that made the extent of the hotel’s property rights unclear.  Without this fact, there would have been no private property right for the hotel to ask the police to enforce.

Second, the interest that the employer seeks to redress with its request to the police must be one that is unique to the employer.  It cannot be simply a request that the police enforce another law (e.g., immigration) where there is no direct connection between the law being enforced and the employer’s interest.  Thus, while the decision is helpful, a cautious approach and advice from qualified labor counsel is a good idea.