Trump hotel fails in suit against unionizers

Trump Ruffin Commercial, LLC v. Local Joint Executive Board Las Vegas, Culinary Workers Union Local 226, No. 15-cv-01984, 2016 WL 4208437 (D. Nev. Aug. 8, 2016)

Plaintiff corporations own and operate Trump Hotel Las Vegas. Defendants are labor unions attempting to unionize Trump Hotel Las Vegas employees. On October 8, 2015, Trump gave a speech in Las Vegas; Trump Hotel Las Vegas does not have a large enough space to host the event, so Trump’s speech took place at the Treasure Island Hotel.

Plaintiffs alleged that defendants circulated a flyer with a photo of people carrying picket signs with the words “No Contract No Peace” and a banner reading “MAKE AMERICA GREAT AGAIN! MR. TRUMP, START HERE” above Defendants’ names and logos. It continued:

Donald Trump is in Las Vegas this evening. Even though he owns a hotel here, he is staying at the Treasure Island Hotel & Casino (TI). Workers at the TI are members of the Culinary Union. They make an average of $3.33 more per hour than Trump workers, have affordable health insurance, and a secure retirement. Meanwhile, Donald Trump has refused to agree to a fair process for workers at his hotel to form a union. If Trump chooses to stay in a union hotel, why can’t Trump Hotel workers choose to form a union?

The Flyer encouraged its readers to “[t]alk to your committee leaders about your right to participate in Union activities[.]”

Plaintiffs sued for violation of the Lanham Act and deceptive trade practices under Nevada law.  Though plaintiffs adequately alleged falsity, they didn’t allege “commercial advertising or promotion.”  The court cited a definition that included “commercial competition with plaintiff,” but that didn’t matter to its analysis, which is good because of the unlikelihood that competition is required post-Lexmark.  Instead, the court concluded that the alleged statements weren’t commercial speech. They were, according to the complaint, “designed to call attention to the [labor] dispute” and “intended to, and would have the tendency to cause, harm to the reputation of Trump Hotel Las Vegas.” That didn’t make the statements advertisements for a product or service, nor a proposal for commercial transactions nor did that allege that the statements were motivated by defendants’ commercial interests. Further, “[n]egative commentary ... does more than propose a commercial transaction and is, therefore, non-commercial.”

The dismissal was without prejudice, and the court also dismissed the state-law claims as a matter of its discretion.