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NLRB holds hotel owner REIT liable as a “statutory employer” for otherwise lawful lawsuit against union

Companies that own properties, such as hotels, may find themselves being damaged by the activities of unions who represent or seek to represent workers on the property, even workers who are employed by other companies. Such property owners may have legal rights at-issue and may sue unions and workers for violation of those rights. However, in response, unions and workers can file charges at the NLRB alleging that the real reason for the lawsuit was to retaliate for lawfully protected concerted activities.  That kind of NLRB charge is often called a Bill Johnson charge after the Supreme Court case recognizing the theory behind such a charge. The NLRB will permit a Bill Johnson charge even when it was proven in the underlying lawsuit that the union had violated the property owner’s rights. In a recent decision, the NLRB revisited multiple doctrines involved with that kind of scenario.

As an initial matter, the hotel owner argued before the NLRB that it was not subject to the National Labor Relations Act because it was not the “employer” of the workers, it had no collective bargaining relationship with their union. Indeed it was undisputed that the company, being a REIT (Real Estate Investment Trust), could not have employed the workers. The Board rejected the argument finding that the owner was a “statutory employer,” subject to the NLRA, along with the operator that actually employed the workers. First the Board held the owner had “a significant financial interest in the hotel’s profitability.” More importantly the operator was an affiliate of the hotel owner; it was owned by two of the same individuals who were owners in the REIT/property owner. And, perhaps most importantly to the Board, the REIT/property owner had a management agreement with the operator, in which it required the operator to consult with it over personnel matters, including wages.

Next, the Board rejected the hotel owner’s argument that it had a meritorious basis for its lawsuit against the union. The Board explained that whether the owner’s lawsuit against the union had a “reasonable basis” or not was simply not an issue in the case. The Board said that its “reasonable basis” test did not apply where, as here, the owner’s lawsuit had been directed specifically at activity protected by the NLRA. Here, the REIT/property owner’s lawsuit was, the Board held, entirely focused on the union’s boycott and related activities and speech by the Union and the workers. In so holding, the Board distinguished cases where the underlying lawsuit had targeted unprotected activities, such as defamatory statements made with malice, threats to the public order, or violence. Finally the Board held, that even if the “reasonable basis” test applied, it would not find the underlying lawsuit as having had a reasonable basis.

The decision is a sharp reminder that the NLRB may punish companies who exercise their otherwise lawful right to pursue litigation against a union. The Board’s ruling that a “reasonable basis” for the underlying lawsuit is not a defense arguably has increased the potential for future Bill Johnson charges.

Source: Ashford TRS Nickel, LLC, 366 NLRB No. 6 (2/1/18).