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.

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