Ashford TRS Nickel, LLC d/b/a The Sheraton Anchorage Hotel & Spa

National Labor Relations Board - Board Decisions

Feb 1, 2018

366 NLRB No. 6 (N.L.R.B. 2018)

366 NLRB No. 6
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Ashford TRS Nickel, LLC a subsidiary of Ashford
Hospitality Trust, Inc. and UNITE HERE! Local
878, AFL–CIO and Ashford Hospitality Trust,
Inc., Ashford Hospitality Limited Partnership,
Ashford OP General Partner LLC, Ashford OP
Limited Partner LLC, Ashford TRS Corpora-
tion, Ashford Anchorage GP LLC, and Ashford
Anchorage LP, Parties at Interest and Single In-
tegrated Enterprise with Respondent. Case 19–
CA–032761
February 1, 2018
DECISION AND ORDER
BY CHAIRMAN KAPLAN AND MEMBERS PEARCE
AND MCFERRAN
The issue presented in this case is whether the Re-
spondent violated Section 8(a)(1) of the National Labor
Relations Act (Act) by filing and maintaining a state-law
based lawsuit against the Union in response to the Un-
ion’s statutorily protected encouragement of a consumer
boycott of the Respondent’s hotel. The administrative
law judge found the Respondent’s lawsuit unlawful on
two independent grounds: because certain of the claims
asserted were preempted by the Act and because all of
the claims were baseless and retaliatory. We affirm the
judge’s findings for the reasons discussed below.1
I.
In December 2006, Ashford TRS Nickel, LLC (the
Respondent), a subsidiary of Ashford Hospitality Trust,
Inc. (AHT), purchased the Sheraton Anchorage Hotel
and Spa (the hotel) in Anchorage, Alaska.2 The Re-
spondent operated as a Real Estate Investment Trust
(REIT), which is material here because that legal status
prevented the Respondent from directly operating the

1 On November 18, 2013, Administrative Law Judge Gerald Etch-
ingham issued the attached decision. The Respondent filed exceptions
and a supporting brief. The General Counsel filed an answering brief,
and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the
exceptions and briefs and has decided to affirm the judge’s rulings,
findings, and conclusions, and to adopt the recommended Order, as
modified below.
In adopting the judge’s remedy, we do not rely on his citation to J.A.
Croson, 359 NLRB 19 (2012), and Federal Security, 359 NLRB 1
(2012), for the calculation of litigation expenses. Instead we rely on
Atelier Condominium & Cooper Square Realty, 361 NLRB No. 111,
slip op. at 1 fn. 2 (2014), enfd. 653 Fed. Appx. 62 (2d Cir. 2016).
2 The Respondent and AHT are a single integrated enterprise.
hotel. Accordingly, the Respondent contracted with Re-
mington Lodging and Hospitality, LLC (Remington) to
operate the hotel and employ its workforce.
The following background details about the relation-
ship between the Respondent and Remington are also
relevant to the present case. Remington is primarily
owned by two individuals, Archie Bennett and Monty
Bennett, both of whom own a 2.3 percent interest in
AHT and are on its Board of Directors; as noted, the Re-
spondent and AHT are a single integrated enterprise.
Monty Bennett is also the CEO of both AHT and Re-
mington. Under a “Management Agreement” between
the Respondent and Remington, the Respondent paid
Remington 3 percent of the gross revenue of the hotel,
plus an incentive fee of 1 percent of the gross operating
profit. All other profits went to the Respondent. Further,
the “Management Agreement” required Remington to
consult the Respondent “on matters of policy concerning
management, sales, room rates, wage scales, personnel,
general overall operating procedures, economics and
operation and other matters affecting the operation of the
Hotels.”
At all relevant times, the employees of the hotel were
represented by UNITE HERE! Local 878 (Union). The
hotel and the Union were parties to a collective-
bargaining agreement, effective March 1, 2005, to Feb-
ruary 28, 2009. Following the Respondent’s acquisition
of the hotel, and enlistment of Remington to operate it,
Remington and the Union began negotiating a new col-
lective-bargaining agreement in October 2008.
Remington, however, quickly demonstrated its hostili-
ty toward the bargaining process and the Union’s repre-
sentation of the hotel’s employees. That hostility mani-
fested itself in a series of unfair labor practices, which we
shall briefly recount in order to provide appropriate con-
text for the present case. In Sheraton Anchorage, 362
NLRB No. 123 (2015) (Sheraton Anchorage I), enfd. sub
nom. UNITE HERE! Local 878 v. NLRB, No. 15-71924,
2017 WL 6617024 (9th Cir. Dec. 28, 2017), the Board
found that in 2010 Remington failed to bargain in good
faith with the Union and unilaterally changed terms and
conditions of employment. The Board also found that
Remington unlawfully solicited employees to decertify
the Union, retaliated against employees by unlawfully
disciplining nine employees and discharging four em-
ployees, and committed a host of other unfair labor prac-
tices.3

3 The judge relied on the findings made by the Board in its initial
decision in Sheraton Anchorage I, 359 NLRB 803 (2013). The panel
that decided Sheraton Anchorage I included two persons whose ap-
pointments to the Board were later determined to be invalid. See NLRB
v. Noel Canning, 134 S.Ct. 2550 (2014). We nevertheless find that the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Subsequently, the Board found that, after the proceed-
ings in Sheraton Anchorage I, Remington discharged and
disciplined employees for engaging in union activity and
testifying at the unfair labor practice hearing in Sheraton
Anchorage I. The Board also found that Remington un-
lawfully made additional unilateral changes, engaged in
surveillance of employees’ union activity, interrogated
employees, and otherwise interfered with employees’
exercise of their Section 7 rights. Sheraton Anchorage,
363 NLRB No. 6 (2015) (Sheraton Anchorage II), enfd.
No. 16-71194, 2017 WL 6617069 (9th Cir. Dec. 28,
2017).
Against that backdrop, we turn to the events underly-
ing the present case. As indicated, Remington and the
Union commenced bargaining in October 2008. In No-
vember 2009, bargaining-unit employees signed a peti-
tion authorizing a consumer boycott of the hotel, in part
to protest Remington’s then-ongoing refusal to bargain in
good faith with the Union.
In response to the consumer boycott, the Respondent
(not Remington) filed a lawsuit against the Union in fed-
eral district court alleging six counts of tortious interfer-
ence with contractual and prospective relations and one
count of defamation. Monty Bennett (the CEO of both
the Respondent and Remington) made the decision to file
the lawsuit, in which the Respondent and Remington
have stipulated they shared a community of interest re-
lated to their common opponent. The asserted factual
bases for the lawsuit were that the Union allegedly had
told prospective customers that the hotel was firing
workers illegally and was trying to strip employees of
core benefits, and that the Union allegedly had informed
potential customers that they would have to cross a “vig-
orous” picket line if they booked a conference at the ho-
tel.
Following a series of motions and amendments to the
complaint, the Union moved to dismiss the Respondent’s
lawsuit. The district court granted the Union’s motion
and dismissed the lawsuit with prejudice. Ashford TRS
Nickel v. UNITE HERE, Local 878, No. 3:10-cv-00213-
HRH (D. Alaska Aug. 8, 2011). With respect to both the
tortious interference and defamation claims, the district
court found that because the statements attributed to the
Union arose from a labor dispute, the Respondent was
required to allege (and eventually prove) that the state-
ments asserted or implied an objective fact, that the
statements were false, that the statements were made
with actual malice, and that the statements were “of and

judge appropriately relied on those findings because a three-member
panel of a validly confirmed Board subsequently affirmed the Board’s
initial Sheraton Anchorage I decision. See Sheraton Anchorage, 362
NLRB No. 123 (2015).
concerning” the Respondent. Id., slip op. at 7-12, citing
Steam Press Holdings, Inc. v. Hawaii Teamsters and
Allied Workers Union, Local 996, 302 F.3d 998, 1004
(9th Cir. 2002), cert. denied, 537 U.S. 1232 (2003) (de-
scribing elements of defamation claim arising during the
course of a labor dispute) and Unelko Corp. v. Rooney,
912 F.2d 1049, 1058 (9th Cir. 1990) (tortious interfer-
ence claims are subject to the same First Amendment
requirements that govern actions for defamation). The
district court found that the Respondent’s complaint fell
short in multiple ways.
First, the district court found that the Union’s alleged
statements about the hotel stripping employees of core
benefits actually concerned a different hotel—the An-
chorage Hilton. Thus, contrary to the complaint allega-
tions, those statements could not have interfered with the
Sheraton Anchorage Hotel’s contractual and prospective
business relations. Second, the court found that even if
the Union’s alleged statements that the hotel was firing
workers illegally implied criminal conduct rather than
merely a civil violation, the statements were nothing
more than rhetorical hyperbole. Third, regarding the
Union’s alleged statements that hotel guests would have
to cross a “vigorous” picket line, the court found that
those statements were protected by Act, that they could
not possibly be perceived as threatening, and that the
Respondent did not adequately plead that those alleged
statements were made with actual malice. In fact, the
court found that the Respondent failed to adequately
plead actual malice as to all the complaint allegations.
Last, the court found that even if the statements attribut-
ed to the Union were plausibly tortious, the tortious inter-
ference claims were preempted by the Act. San Diego
Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959).4
Notably, the Respondent did not appeal the district
court’s decision. The Union thereafter filed unfair labor
practice charges with the Board alleging that the lawsuit
violated Section 8(a)(1) of the Act, and the General
Counsel issued a complaint alleging the same.
II.
The administrative law judge in the present case found
that the Respondent’s lawsuit was unlawful. The judge
found, as a threshold matter, that the Respondent could
be held liable under the Act for the lawsuit even though
Remington (not the Respondent) employed the bargain-
ing-unit employees, because the Respondent exercised
“sufficient control” over the employees’ terms and condi-
tions of employment. Turning to the merits, the judge
found that the Respondent’s tortious interference claims

4 The judge did not explicitly consider whether the defamation
claims were also preempted.
ASHFORD TRS NICKEL, LLC 3
were unlawful because they targeted protected activity
and were preempted by the Act. Further, he found that
both the tortious interference and defamation claims were
independently unlawful because they were baseless and
motivated by a desire to retaliate against the Union. The
Respondent filed exceptions to each of these findings.
We affirm the judge’s decision for the following reasons.
III.
A.
We agree with the judge that the Respondent may be
found to have violated the Act even if the Respondent
had no employment relationship with the hotel’s em-
ployees.5 It is well settled that a statutory employer un-
der Section 2(2) of the Act may be held liable for inter-
fering with the Section 7 rights of statutory employees
even if that employer does not employ the affected em-
ployees. Section 2(3) of the Act defines employee to
“include any employee, and shall not be limited to the
employees of a particular employer, unless the Act ex-
plicitly states otherwise.” Likewise, Section 2(9) defines
“labor dispute” as including any “controversy . . . regard-
less of whether the disputants stand in the proximate re-
lationship of employer and employee.”
Accordingly, the Board, with court approval, has con-
sistently held that third-party employers may be liable for
interfering with the protected rights of the employees of
another employer.6 Indeed, the Board has specifically
rejected the argument that the lack of an employer-
employee relationship absolves a statutory employer of
liability for filing a retaliatory lawsuit. See BE & K Con-
struction Co., 329 NLRB 717, 725 (1999) (BE & K I),
enfd. 246 F.3d 619 (6th Cir. 2001), revd on other
grounds 536 U.S. 516 (2002). For those reasons, we find
that the Respondent may be held liable for filing a base-
less and retaliatory lawsuit even assuming that it had no
employment relationship with the hotel’s employees.
The Respondent further argues that it should not be
held liable for filing the lawsuit because the Respondent
was merely trying to protect its investment interest in the
hotel and had no control over Remington’s collective-
bargaining relationship with the Union. We reject this

5 We need not decide whether the judge correctly found that that
there was no employment relationship.
6 See, e.g., New York New York Hotel & Casino, 356 NLRB 907,
911 (2011), enfd. 676 F.3d 193 (D.C. Cir. 2012), cert. denied 133 S.Ct.
1580 (2013); Five Star Transportation, Inc. v. NLRB, 522 F.3d 46, 50
(1st Cir. 2008), enfg. Five Star Transportation, 349 NLRB 42 (2007);
QSI Inc., 346 NLRB 1117, 1118 (2006), enf. denied in part on other
grounds sub nom. Smithfield Packing Co. v. NLRB, 510 F.3d 507 (4th
Cir. 2007); International Shipping Assn., 297 NLRB 1059, 1059
(1990); Dews Construction Corp., 231 NLRB 182, 182 fn. 4 (1977),
enfd. mem. 578 F.2d 1374 (3d Cir. 1978).
argument. As we explain in more detail below, the Re-
spondent’s lawsuit targeted employee activity that plain-
ly was protected by the Act. Moreover, the Respond-
ent’s characterization of its role here as somehow tangen-
tial to the labor dispute is unpersuasive. As the owner of
the hotel, the Respondent not only had a significant fi-
nancial interest in the hotel’s profitability—which was
threatened by the employees’ protected activity—but it
also had taken steps to protect its interest via its “Man-
agement Agreement” with Remington, which required
Remington to consult the Respondent on various matters,
including management, wage scales, personnel, and gen-
eral overall operating procedures. Indeed, the Respond-
ent stipulated that it and Remington had a shared interest
in prosecuting the lawsuit. Nothing in the Act or its poli-
cies, then, precludes holding the Respondent liable under
Section 8(a)(1) for the filing of its lawsuit.
B.7
The judge found that the Respondent’s lawsuit was un-
lawful insofar as it asserted claims for tortious interfer-
ence with contractual and prospective relations because
those claims were preempted by the Act. In its excep-
tions, the Respondent argues that, even if its lawsuit was
preempted, preempted lawsuits are no longer necessarily
unlawful under Supreme Court precedent. There is no
merit to that argument. And, as explained below, the
Respondent’s lawsuit clearly was preempted.
1.
The Supreme Court addressed the status of preempted
lawsuits in connection with labor disputes in Bill John-
son’s Restaurants v. NLRB, 461 U.S. 731 (1983). There,
the Court held that the Board could enjoin baseless litiga-
tion, but, in light of the First Amendment, could not en-
join a reasonably based ongoing lawsuit even if the law-
suit interfered with employees’ Section 7 rights. The
Court, however, was careful to delineate the limited
scope of its holding, making clear that preempted law-
suits were a different matter altogether:
It should be kept in mind that what is involved here is
an employer's lawsuit that the federal law would not
bar except for its allegedly retaliatory motivation. We
are not dealing with a suit that is claimed to be beyond
the jurisdiction of the state courts because of federal-
law preemption, or a suit that has an objective that is il-
legal under federal law. Petitioner concedes that the
Board may enjoin these latter types of suits. . . . Nor

7 Chairman Kaplan finds no need to rely on a preemption analysis in
finding that the Respondent’s lawsuit was unlawful. Accordingly, he
joins his colleagues only with respect to the analysis and finding, set
forth in Section C. below, that both the tortious interference claims and
defamation claims in the lawsuit were baseless and retaliatory.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
could it be successfully argued otherwise, for we have
upheld Board orders enjoining unions from prosecuting
court suits for enforcement of fines that could not law-
fully be imposed under the Act, . . . and this Court has
concluded that, at the Board's request, a District Court
may enjoin enforcement of a state-court injunction
“where [the Board's] federal power pre-empts the
field.”
461 U.S. at 737 fn. 5 (citations omitted). Thus, Bill John-
son’s expressly preserved the Board’s authority to condemn
a preempted lawsuit. As explained below, that authority
remains intact today.
Since Bill Johnson’s, the Board and reviewing courts
have consistently held that preempted lawsuits enjoy no
special immunity from condemnation under the Act.8 As
the Third Circuit has stated, “[t]he basic holding of Bill
Johnson’s was subject to a large exception, for the Court
indicated that it was not dealing with a suit beyond a
state court’s jurisdiction because of federal preemption or
a suit that has an object that is illegal under federal law.”
Teamsters Local 776 v. NLRB, 973 F.2d at 235 (internal
quotations omitted).
The Respondent argues that the Supreme Court itself
eliminated that “large exception” for preempted lawsuits
when it revisited this area of the law some 19 years after
Bill Johnson’s in BE & K Construction Co. v. NLRB, 536
U.S. 516 (2002). The judge rejected this argument, and
rightly so.9 In BE & K, the Court held that, even with
respect to completed lawsuits, the Board could not de-
clare unlawful a reasonably based but unsuccessful law-
suit, notwithstanding evidence of a retaliatory motive.10
Rather, the Court concluded that the First Amendment
interests at stake warranted shielding even an unsuccess-
ful lawsuit, unless the lawsuit was found to be both base-
less and retaliatory. The Court, however, did not revisit
or otherwise retreat from its position on lawsuits that are
preempted by Federal law.

8 See, e.g., Bakery Workers Local 6 (Stroehmann Bakeries), 320
NLRB 133, 138 (1995); Teamsters Local 776 (Rite Aid), 305 NLRB
832, 834 (1991), enfd. 973 F.2d 230 (3d Cir. 1992), cert. denied 507
U.S. 959 (1993).
9 Here, the administrative law judge relied upon the Board’s deci-
sions in J.A. Croson, supra, 359 NLRB 19, and Federal Security, supra,
359 NLRB 1, in which the Board restated that preempted lawsuits may
be found to violate the Act without regard to their objective merits,
notwithstanding the BE & K decisions. But both J.A. Croson and Fed-
eral Security were issued at a time when the composition of the Board
included two persons whose appointments were later determined to be
invalid. See NLRB v. Noel Canning, 134 S.Ct. 2550 (2014). Accord-
ingly, we do not rely on the Board’s decision in those cases.
10 The Court did leave open the question whether a reasonably
based lawsuit filed with the sole purpose of imposing litigation costs on
the opposing party could be the basis of an unfair labor practice find-
ing.
The continued vitality of the Bill Johnson’s exemption
for preempted lawsuits was later recognized by the Court
of Appeals for the District of Columbia Circuit in Can-
Am Plumbing v. NLRB, 321 F.3d 145 (D.C. Cir. 2003).
In that case, the court considered whether a state court
lawsuit challenging a job targeting program under Cali-
fornia’s prevailing wage statute violated Section 8(a)(1).
Like the Respondent, the employer argued that the Su-
preme Court in BE & K had extended the baseless-and-
retaliatory standard to the analysis of preempted lawsuits.
The court rejected that argument. First, the court ob-
served that the Board had consistently declined to apply
the Bill Johnson's analysis to lawsuits that were preempt-
ed by the Act. Second, the court endorsed the Board’s
interpretation that BE & K was “not relevant” because it
did not affect the Bill Johnson’s exemption for preempt-
ed lawsuits. Id. at 151. See also Small v. Plasterers Lo-
cal 200, 611 F.3d 483, 492 (9th Cir. 2010) (quoting Can-
Am, “BE & K did not affect the footnote 5 exemption in
Bill Johnson’s”).
For those reasons, we reject the Respondent’s argu-
ment that preempted lawsuits must be analyzed under the
standard adopted by the Supreme Court in BE & K. Ra-
ther, we reaffirm the Board’s consistently held view that
a preempted lawsuit enjoys no special protection under
the First Amendment and may be found to violate the
Act if it is unlawful under traditional NLRA principles;
that is, it may be found unlawful if it has a tendency to
interfere with the free exercise of a Section 7 right.11
And as we explain below, the Respondent’s tortious in-
terference claims in fact were wholly preempted by the
Act as they targeted conduct that is plainly protected by
the Act.
2.
The Respondent’s tortious interference allegations
were preempted because they were based on, and target-
ed, the Union’s consumer boycott of the hotel. As a gen-
eral matter, an action brought under state law is preempt-
ed when “it is clear or may fairly be assumed that the
activities which a State purports to regulate are protected
by [Section] 7 of the National Labor Relations Act.” San
Diego Bldg. Trades Council v. Garmon, supra, 359 U.S.
at 244. The Garmon Court’s express concern was that
“allow[ing] the States to control activities that are poten-
tially subject to federal regulation involves too great a
danger of conflict with national labor policy.” Id. at 246.

11 See, e.g., Can-Am Plumbing, Inc., 335 NLRB 1217, 1217 (2001),
enf. denied on other grounds and remanded 321 F.3d 145 (D.C. Cir.
2003), reaffd. 350 NLRB 947 (2007), enfd. 340 Fed. Appx. 354 (9th
Cir. 2009)
ASHFORD TRS NICKEL, LLC 5
Here, the consumer boycott of the hotel clearly was
protected by Section 7. The boycott consisted of the
Union and its members notifying potential hotel custom-
ers of the Union’s labor dispute with the hotel and of the
prospect of picketing at the hotel in connection with that
dispute. Those communications constituted protected
activity.12 The Union also requested that customers not
patronize the hotel because of the ongoing labor dispute,
and it is well established that such requests are protected
by the Act. See, e.g., Sears, Roebuck & Co., 168 NLRB
955, 956–957 (1967).
To be sure, as the Respondent argues, there are cir-
cumstances in which otherwise protected conduct con-
cerning a labor dispute may be deemed unprotected or
lose the protection of the Act. In those situations, a state
court lawsuit may not be preempted. For example, in
Linn v. United Plant Guard Workers of America, Local
114, 383 U.S. 53 (1966), the Court concluded that de-
famatory statements made in connection with a labor
dispute may be actionable under state law if the com-
plainant establishes that the statements were made with
actual malice, meaning that the statements were made
“with knowledge of their falsity or with reckless disre-
gard of whether they were true or false.” Id. at 65.
Likewise, state law actions may proceed against conduct
marked by violence or conduct presenting an imminent
threat to the public order. See San Diego Building
Trades Council v. Garmon, supra, 359 U.S. at 247.
These exceptions are potentially applicable to state law
based tortious interference claims.13 But there is no basis
for applying an exception in the present case.14

12 See Edward J. DeBartolo Corp. v. Florida Building & Construc-
tion Trades Council, 485 U.S. 568 (1988); D’Alessandro’s, Inc., 292
NLRB 81, 83 (1988) (holding that Sec. 7 protects peaceful distribution
of handbills informing the public that the employer does not employ
union members, or have a contract with the union, and asking custom-
ers not to patronize the employer); NLRB v. Servette, 377 U.S. 46, 57
(1964) (providing customers with notice that lawful conduct, such as a
consumer boycott, will occur is also protected under the Act).
13 See, e.g., Beverly Hills Foodland, Inc. v. United Food and Com-
mercial Workers Local 655, 39 F.3d 191, 196 (8th Cir. 1994) (applying
the Linn requirement of actual malice to tortious interference claims);
Wilkes-Barre Publishing Co. v. Newspaper Guild of Wilkes-Barre, 647
F.2d 372, 381-382 (3d Cir. 1981), cert. denied 454 U.S. 1143 (1982)
(recognizing that “where parties to a labor dispute are charged with
tortious interference with a collective bargaining agreement, at least in
the absence of outrageous or violent conduct, state law causes of action
are preempted”).
14 The Respondent argues that under Alaska state law, tortious inter-
ference claims do not require a showing of actual malice. But the cases
it cites do not involve labor disputes and have no bearing on the ques-
tion whether an Alaska state law tortious interference claim stemming
from a labor dispute is federally preempted absent evidence of actual
malice. In those circumstances, federal courts have required a showing
of actual malice to avoid preemption. Chicago District Council of
Carpenters Pension Fund v. Reinke Insulation Co., 464 F.3d 651, 657
Notably, the Respondent’s complaint filed in state
court did not even plead actual malice until it was
amended a third time. And even then, the complaint ut-
terly failed to articulate any ground for finding that the
Union acted with actual malice or otherwise engaged in
conduct that was so outrageous or violent as to fall out-
side the protection of the Act. Under Linn, those circum-
stances cripple the Respondent’s attempt to avoid a
preemption finding.
Nor may the Respondent find relief in its further ar-
gument that its complaint adequately pled that the Union
threatened violence or committed acts of intimidation.
The complaint alleged that the Union threatened violence
by telling potential hotel customers that they would face
a “vigorous picket line” at the hotel. But we agree with
the judge that the Union’s description of the picket line
as “vigorous” was merely a rhetorical flourish that did
not raise the specter of violence. The statement was
therefore not so outrageous or threatening as to exceed
the protections of the Act.
The Respondent’s complaint also included a declara-
tion from its general manager, Denis Artiles, with an
attached letter addressed to Artiles from Laura Badeaux
of the Louisiana Center for Women in Government (Cen-
ter) alleging that certain individuals who were scheduled
to attend a Center sponsored event at the hotel had re-
ceived “threatening phone calls” from the Union. The
district court found, however, that the phrase “threaten-
ing phone calls” was too vague and inconclusive to satis-
fy the Respondent’s burden. We agree. Indeed, the al-
leged “threats” may have been protected speech, such as
a “threat” that panelists would have to cross a “vigorous”
picket line.15
For those reasons, we find, in agreement with the ad-
ministrative law judge, that the Respondent’s lawsuit was
based on activity that was protected by the Act, and that
the Respondent failed to articulate any basis for conclud-
ing that the Union may have forfeited that protection by
acting with actual malice or threatening violence. Ac-
cordingly, we affirm the judge’s finding that the Re-

(7th Cir. 2006); Beverly Hills Foodland, Inc. v. United Food and Com-
mercial Workers Local 655, supra, 39 F.3d at 196.
15 Artiles’ declaration also stated that Badeaux had told him that a
prospective panelist at the event had told Badeaux that she, the prospec-
tive panelist, had received a phone call warning her to be concerned for
her safety. This additional statement is not meaningful evidence of a
threat of violence. As to this statement, Artiles’ declaration is double
hearsay: it describes what Badeaux told Artiles about what a panelist
had told Badeaux. As such, the district court judge did not find this
evidence reliable and neither do we. In any event, the statement at
issue bears on only one of the six counts of tortious interference. For
the five remaining counts, the Respondent points only to the description
of a “vigorous picket line.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
spondent’s lawsuit, insofar as it asserted claims of tor-
tious interference with contractual and prospective rela-
tions, was preempted by the Act. Further, because those
claims plainly had a tendency to interfere with conduct
that is protected by Section 7 (the Union’s consumer
boycott), the Respondent violated Section 8(a)(1) of the
Act by filing and maintaining them.
C.
We also agree with the judge that those tortious inter-
ference claims, as well as the Respondent’s defamation
claim, violated Section 8(a)(1) on the independent
ground that they were baseless and retaliatory.
1.
Following the Supreme Court’s decision in BE & K,
discussed above, the Board, on remand, clarified the
standard for determining whether a lawsuit was “base-
less.” In BE & K Construction Co., 351 NLRB 451
(2007) (BE & K II), the Board explained that it would
find a lawsuit objectively baseless if “no reasonable liti-
gant could realistically expect success on the merits.” Id.
at 457 (quoting Professional Real Estate Investors, Inc.
v. Columbia Pictures Industries, 508 U.S. 49, 60 (1993)).
In Ray Angelini, Inc., 351 NLRB 206 (2007), a decision
issued concurrently with BE & K II, the Board further
explained that in applying this standard it would be
“guided by the Supreme Court’s discussion, in Bill John-
son’s, of the reasonable-basis inquiry in the context of
ongoing suits.” Id. at 208. There, the Court observed
that a lawsuit would lack a reasonable basis if “the plain-
tiff’s position is plainly foreclosed as a matter of law or
is otherwise frivolous.” Bill Johnson’s, above, 461 U.S.
at 747. The Bill Johnson’s Court also provided that,
“[i]n making reasonable-basis determinations, the Board
may draw guidance from the summary judgment and
directed verdict jurisprudence.” Id. at 745 fn. 11.
Applying the “baseless” standard here, we find in
agreement with the judge that no reasonable litigant
could realistically have expected success on the merits of
the Respondent’s lawsuit. As discussed, because the
Respondent’s lawsuit was based on Union activity pro-
tected by the Act, the Respondent was required to estab-
lish that the Union acted with actual malice. But not
only did the Respondent fail to adequately plead actual
malice, the Respondent did not assert any facts that, if
proven, would have established actual malice, despite
multiple opportunities to amend its complaint. Thus,
from the beginning, an essential element of the lawsuit
was lacking, preordaining the lawsuit’s failure. See Mi-
lum Textile Services Co., 357 NLRB 2047, 2050
(2011).16
Moreover, as did the judge, we find it significant that
the Respondent’s defamation claim was based in part on
information contained in a flyer that was not about the
hotel involved in this case. The Respondent alleged that
the Union had informed potential customers that the ho-
tel had stripped employees of their core benefits. But the
documentary evidence submitted to support this claim
showed that the relevant statement actually concerned a
different hotel, not owned by the Respondent - the Hilton
Anchorage, which also was involved in a labor dispute.
An essential element of a defamation claim is that the
challenged statement be “of and concerning” the plain-
tiff. See Steam Press Holdings, Inc. v. Hawaii Teamsters
and Allied Workers Union, Local 996, supra, 302 at
1004. Plainly, the Respondent’s defamation claim was
fatally flawed to the extent it relied on the Union’s
statements about a different hotel. See Atelier Condo-
minium, supra, 361 NLRB No. 111, slip op. at 4 (the
General Counsel may demonstrate baselessness by show-
ing that there is an absence of evidence to support an
element in the plaintiff’s claim); Milum Textile Services,
supra, 357 NLRB at 2050.17
Last, we reject the Respondent’s argument that its law-
suit may be found baseless only if it was sanctioned un-
der Rule 11 of the Federal Rules of Civil Procedure. The
Respondent’s view obviously is contrary to controlling
Supreme Court and Board precedent.
For all of those reasons, we find that the Respondent’s
lawsuit against the Union was baseless.
2.
We also agree with the judge’s finding that the Re-
spondent’s lawsuit was filed with a retaliatory motive.
The judge thoroughly analyzed this element of the Gen-
eral Counsel’s case, so we need only briefly summarize
the judge’s key findings. As found by the judge, the Re-
spondent’s lawsuit plainly targeted protected conduct;
chiefly, the consumer boycott and the Union’s related
communications with the public. Thus, the lawsuit was
retaliatory on its face.

16 There is no merit to the Respondent’s argument that the district
court judge wrongly denied it discovery to support its claims. As de-
scribed, the district court judge dismissed the Respondent’s lawsuit on
a motion filed pursuant to FRCP 12(b)(6); in other words, on a pre-
discovery motion. If the Respondent disagreed with that disposition, it
could have appealed the judge’s decision. It did not, however, and
cannot complain about that decision now.
17 We do not rely on the judge’s additional rationale that the lawsuit
was objectively baseless because the Sheraton Anchorage hotel did not
suffer actual damages from the boycott, but rather led the region in
sales during the time in question. It is possible that, absent the boycott,
the hotel’s sales would have been even greater.
ASHFORD TRS NICKEL, LLC 7
The Respondent’s unlawful motive is also supported
by our finding that its lawsuit was objectively baseless.
As discussed, the lawsuit failed to adequately plead actu-
al malice, a necessary element for each claim, and was
partially predicated on conduct that did not concern the
hotel involved in this case. Under our precedent, “a gen-
uine desire to obtain [judicial relief] on baseless grounds
barring clearly protected conduct is a retaliatory, not a
proper motive.” Milum Textile Services, supra, 357
NLRB at 2051 fn. 17.
Finally, in agreement with the judge, we find that the
record of widespread unfair labor practices directed at
the Union and the hotel’s employees strongly supports
finding that the Respondent’s lawsuit was retaliatory.18
Indeed, we agree with the judge that the Respondent’s
lawsuit was just another instance of unlawful retaliation
in response to the hotel employees’ continued support for
the Union.19
IV.
In sum, we find that the Respondent may be held liable
under the Act for the consequences of filing its lawsuit
against the hotel employees’ protected activity, even as-
suming that the Respondent had no employment relation-
ship with those employees. As to the lawsuit itself, the
Respondent’s tortious interference claims were preempt-
ed by the Act, and both those claims and the Respond-
ent’s defamation claim were baseless and retaliatory.
Accordingly, we affirm the judge’s finding that the law-
suit violated Section 8(a)(1) of the Act.

18 The Respondent argues that this record of “bad acts” is attributa-
ble to Remington, not the Respondent. We agree with the judge, how-
ever, that in the circumstances of this case, Remington’s “bad acts” are
probative of the Respondent’s motive in filing the lawsuit. As de-
scribed, Monty Bennett, the CEO of both the Respondent and Reming-
ton made the decision to file the lawsuit and the Respondent and Re-
mington stipulated that they shared a community of interest in the law-
suit.
In finding that the Respondent filed its lawsuit with an unlawful re-
taliatory motive, Chairman Kaplan relies on the fact that the lawsuit, on
its face, targeted conduct protected by Sec. 7 of the Act, and on the
record of widespread unfair labor practices committed in response to
the hotel employees’ support for the Union. He does not rely on the
finding that the lawsuit was objectively baseless as evidence of an
unlawful retaliatory motive.
19 Contrary to the Respondent’s argument, the Sixth Circuit’s deci-
sion in NLRB v. Allied Mechanical Services, 734 F.3d 486 (2013), does
not preclude a finding that the Respondent’s lawsuit violated the Act.
On the facts of that case, the court simply disagreed with the Board’s
finding that the employer’s lawsuit lacked a reasonable basis. As the
Respondent points out, the court did note Justice Scalia’s suggestion in
BE & K that the Court might someday raise the standard for finding
retaliatory motive to require evidence that an employer filed its lawsuit
solely to impose litigation costs on the union. But the court expressly
found no need to decide that question because the evidence failed to
show such a motive in any event.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Ashford TRS Nickel, LLC,
Ashford Hospitality Trust, Inc., and all AHT affiliated
enterprises, a single business enterprise and single em-
ployer, Dallas, Texas, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Dated, Washington, D.C. February 1, 2018
______________________________________
Marvin E. Kaplan, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT file or maintain any lawsuit that is
preempted by federal labor law or that lacks a reasona-
ble basis and is motivated by an intent to retaliate
against activity protected by Section 7 of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL reimburse UNITE HERE! Local 878 for all
legal and other expenses incurred in the defense of our
September 23, 2010 Federal District Court Lawsuit filed
against the Union, with interest compounded daily.
ASHFORD TRS NICKEL AND ITS
AFFILIATED ENTERPRISES
The Board’s decision can be found at
www.nlrb.gov/case/19-CA-032761 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
Rachel Cherem and Mara Anzalone, for the Acting General
Counsel.
Karl M. Terrell (Stokes Wagner Hunt Maretz & Terrell), for the
Respondent.
Larry Schwerin (Schwerin Campell Barnard Iglitzin & Lavitt),
for the Charging Party.
DECISION
STATEMENT OF THE CASE
GERALD M. ETCHINGHAM, Administrative Law Judge. This
case was tried in Seattle, Washington, on July 16, 2013.
UNITE HERE! Local 878, AFL–CIO (the Union) filed the
charge in case 19–CA–32761 on September 27, 2010. The
Union filed an amended charge in the same case on May 8,
2012. On June 14, 2013, the Acting General Counsel issued a
second amended complaint (the complaint) setting hearing for
July 16, 2013.
The complaint alleges that Ashford TRS Nickel, L.L.C., a
subsidiary of Ashford Hospitality Trust, Inc. (AHT), and a
member of AHT’s affiliated entities (collectively known here
as “Respondent or Ashford”)1 violated Section 8(a)(1) of the

1 The parties stipulated and I find that Respondent, AHT, and
AHT’s affiliated entities, other than Remington and its successor, con-
stitute a single-integrated business enterprise and a single employer
within the meaning of the Act because they have common officers,
ownership, directors, management, and supervision; have administered
a common labor policy; have shared common premises and facilities;
have provided services and made sales to each other; have interchanged
National Labor Relations Act (the Act)-when on September 23,
2010, it filed and maintained a lawsuit in the Federal District
Court for the District of Alaska (Federal District Court Law-
suit) against the Union alleging defamatory statements and
tortious interference related to the Union’s boycott of Respond-
ent’s hotel. The complaint further alleges that this Federal
District Court Lawsuit is preempted, lacks reasonable basis,
and was motivated by a desire to retaliate against activity pro-
tected by Section 7 of the Act.
On July 1, 2013, Respondent filed its answer denying that it
violated the Act through its filing of the Federal District Court
Lawsuit.
The parties entered into numerous stipulations of fact, which
I approved. They are in the record as Joint Exhibit 1 as well as
Joint Exhibits 2 and 3.2 (Tr. 8–14.)
On the entire record, including my observation of the de-
meanor of the witness, and after considering the briefs filed by
the Acting General Counsel and Respondent, I make the fol-
lowing.
FINDINGS OF FACT
A. Jurisdiction
The parties stipulate and I find that Respondent owns and/or
leases hotel properties throughout the United States including
Anchorage, Alaska, where it annually derives gross revenues in
excess of $500,000. (Jt. Exh. 1 at 3.) Respondent further ad-
mits and I find that at all material times, it is, and has been, an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. (Jt. Exh. 1 at 2–5.) I further find
and the parties stipulate that at all material times, Respondent
has been an employer engaged in commerce within the mean-
ing of Sections 2(2), (6), and (7) of the Act. Id.
B. Background
Respondent, a Delaware limited liability corporation with its
principal office and place of business in Dallas, Texas, is a
subsidiary of AHT, a publicly traded Maryland company en-
gaged in the investment ownership of hotels. (Jt. Exh. 1 at 1–2;
Tr. 21:9–12, 21–23.) AHT and its affiliated entities, including
Respondent, constitute an integrated business enterprise or
single employer, which operates as a real estate investment
trust (REIT). (Tr. 31:8–13; Jt. Exh. 1 at 2.)
In December 2006, Respondent purchased the Sheraton An-
chorage Hotel (Hotel) and contracted with Remington Lodging
& Hospitality, LLC (Remington), also a Dallas based company
that shares the same office building location in Dallas with

personnel with each other; have interrelated operations regarding the
ownership and/or leasing of hotel properties; and have generally held
themselves out to the public as a single-integrated business enterprise.
Jt. Exh. 1 at 2-3.
2 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “Jt. Exh.” for joint exhibit; “R. Exh.” for Respondent’s exhibit;
“GC Exh.” for Acting General Counsel’s exhibit; “GC Br.” for the
Acting General Counsel’s brief; “R. Br. for the Respondents’ brief.
Although I have included several citations to the record to highlight
particular testimony or exhibits, I emphasize that my findings and con-
clusions are based not solely on the evidence specifically cited, but
rather are based my review and consideration of the entire record.
ASHFORD TRS NICKEL, LLC 9
Respondent, to operate the Hotel under a Hotel Master Man-
agement Agreement (Management Agreement). (Jt. Exh. 1
at 3; Jt. Exh. 2 at 61–71; Tr. 23, 58–59.) Since January 1, 2011,
Respondent has engaged Remington Anchorage Employers,
LLC (“Remington Anchorage”) to succeed Remington in oper-
ating the Hotel pursuant to the same Management Agreement.
(Jt. Exh. 1 at 4.)
The Management Agreement provides that Respondent “ap-
points Manager [Remington] as its sole, exclusive and continu-
ing operator and manager to supervise and direct, for and at the
expense of [Respondent], the management, and operations of
the premises.” (Jt. Exh. 2 at 17.) The Management Agreement
further provides that Remington “shall consult with [Respond-
ent] on matters of policy concerning management, sales, room
rates, wage scales, personnel, general overall operating proce-
dures, economics and operations.” (Jt. Exh. 2 at 31–32.)
Remington is privately held and owned primarily by two in-
dividuals, Archie Bennett and Monty Bennett. (Jt. Exh. 2.)
The Bennetts each own a noncontrolling 2.3 percent interest in
AHT and serve on AHT’s Board of Directors. Id. Monty Ben-
nett, an admitted agent of Respondent, serves as CEO of AHT
and CEO of Remington. (Tr. 116:1–117:9; R Exh. 1, pp. 5–6;
Jt. Exh. 2 at 56; Tr. 58:24–59:1.)
When the underlying Federal District Court lawsuit was filed
by Respondent against the Union in September 2010, Reming-
ton was managing the Hotel and was the employer of the em-
ployees. Remington Anchorage has also been the manager of
the Hotel and the employer of the employees since January 1,
2011. (Jt. Exh. 1 at 3–4.) Respondent is not an employer of the
employees of the Hotel. (Jt. Exh. 1.)
C. Consumer Boycott, Prior Litigation, and Bad Acts
Against Union
When Respondent purchased the Hotel, the Union was party
to a collective-bargaining agreement (CBA), effective March 1,
2005, to February 28, 2009, with the Hotel’s former operator.
(Jt. Exh. 1 at 5; GC Exh. 4, p. 12). In October 2008, the Union
and Remington began negotiations for a new CBA (Jt. Exh. 1 at
20.) In light of Remington’s then-alleged failure to bargain in
good faith and unilateral implementation of changes to working
conditions, unit employees signed a petition authorizing a con-
sumer boycott in protest in November 2009.3 (Jt. Exh. 1 at 5–6;
GC Exh. 2; GC Exh. 4, p. 27).
On November 17, 2009, during a Union rally for the boycott,
Remington issued unlawful discipline to employees. (GC Exh.
4, pp. 27, 49–51). Remington also unlawfully suspended and
fired Unit members who had distributed boycott flyers to hotel
guests and others entering and exiting the Hotel on February 2,
2010. (GC Exh. 4, p. 30.) In the subsequent months, Reming-
ton’s managers unlawfully solicited signatures for a decertifica-
tion petition at the Hotel, conducted extensive surveillance of
employees, and disciplined employees for participating in un-
ion activity (GC Exh. 4, pp. 63-66; GC Exh. 5, pp. 6–12, 19–

3 Respondent incorrectly states in its posthearing brief that the Un-
ion’s consumer boycott started in November of 2010 rather than in
November 2009. R. Br. at 7. The Federal District Court Lawsuit was
filed in late September 2010.
21, 25–28). In July of 2010, Remington illegally withdrew
recognition of the Union, unilaterally and unlawfully barred
union representatives from Hotel grounds, ceased making pay-
ments to the Union Pension Plan, and changed long-established
scheduling practices in the banquet department. (GC Exh. 4,
pp. 63–66; GC Exh. 5, pp. 6–12, 19–21, and 25–28)
The above-mentioned unfair labor practices were addressed
at the hearing in Sheraton Anchorage, 359 NLRB 803 (2013)
(Remington I,) before Administrative Law Judge Gregory
Meyerson in Anchorage, Alaska, between August 17, 2010, and
January 28, 2011 (GC Exh. 4, p.11). The Board affirmed Judge
Meyerson’s decision and found that Remington, as operator of
the Hotel, engaged in numerous unfair labor practices, includ-
ing unlawful withdrawal of recognition from the Union, unlaw-
ful discipline to nine employees for violating the Hotel’s em-
ployee handbook when delivering the boycott petition to the
General Manager, unlawful refusal to bargain, enforcement of
overbroad and unlawful work rules, multiple unlawful discipli-
nary actions and terminations, intentional misrepresentation of
financial records and multiple unilateral changes in terms and
conditions of employment without notice to or bargaining with
the Union. Remington I, 359 NLRB 803, at 828–832, 848–353,
865–868 (2013).4
Respondent’s counsel admits that it is “hard to untangle” the
Remington I litigation from the instant proceeding and that
Remington and Respondent share a community of interest re-
lated to the Union, their common opponent. (Tr. 61:7-17; 77:9-
24.) Respondent and Remington have shared counsel with
regard to proceedings involving the Union. (Tr. 60:5-21;
57:13-58:10; 23:3-6). Respondent’s counsel further admitted
and opined that “We’re dealing with one hotel as to which [Re-

4 As has been argued frequently over the past year, the Respondent
also argues that the Board’s Order denying Respondent’s motion for
summary judgment and the Board’s affirming of Judge Meyerson’s
decision in Remington I are void because the Board lacked a valid
quorum when it issued the decision. This argument derives from the
D.C. Circuit’s decision in Noel Canning v. NLRB, 705 F.3d 490 (D.C.
Cir. 2013), which the Board has rejected and so must I. See, e.g.,
Bloomingdale's Inc., 359 NLRB 1015 (2013); Belgrove Post Acute
Care Center, 359 NLRB 633, slip op. at fn.1 (2013). Though the
Fourth Circuit recently agreed with Noel Canning when it decided
NLRB v. Enterprise Leasing Co. Southeast, LLC, Nos. 12–1514, 12–
2000, 12–2065, 2013 WL 3722388 (4th Cir. 2013), the Board has noted
that at least three courts of appeals have reached a different conclusion
on similar facts. Bloomingdales, supra, (citing Evans v. Stephens, 387
F.3d 1220 (11th Cir. 2004), cert. denied 544 U.S. 942 (2005); U.S. v.
Woodley, 751 F.2d 1008 (9th Cir. 1985); U.S. v. Allocco, 305 F.2d 704
(2d Cir. 1962)). This argument obviously has no merit since, at present,
the Board has five members, all of whom were confirmed by the Senate
on July 30, 2013, and duly sworn in on various dates in August 2013.
In making this finding, I have taken administrative notice of Board’s
Press Release dated July 31, 2013, and August 12, 2013, publicly an-
nouncing these facts. Also, while there is a current valid Board to re-
view this decision, if applicable, this valid quorum question remains in
litigation, and pending a definitive resolution, the Board is charged to
fulfill its responsibilities under the Act. Earlier in the hearing, I orally
rejected the same argument by Respondent for the same reasons and I
cited many of these cases. Tr. 14-18. Consistent with Board precedent,
the Respondent’s affirmative defenses based on Noel Canning and a
lack of valid Board quorum arguments are rejected.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
spondent] is the owner, Remington is the management compa-
ny.” (Tr. 63:15-18.)
Remington and the Union were again opposite each other be-
fore Administrative Law Judge John J. McCarrick in a second
case tried in Anchorage, Alaska between October 16 and De-
cember 14, 2012 (Remington II). Judge McCarrick further
found that Remington violated the Act in numerous ways, in-
cluding maintaining and enforcing unlawful employee conduct
rules, interrogating employees about their union activities, en-
gaging in surveillance of employees’ union activities, unlawful-
ly disciplining and discharging employees involved with union
activities and the adverse NLRB hearing testimony. Sheraton
Anchorage, 19–CA–32599, et. al., [JD(SF)-22-13( ALJ McCar-
rick, June 6, 2013)](Remington II).
D. The Federal District Court Lawsuit
On September 23, 2010, Respondent filed the Federal Dis-
trict Court Lawsuit, a lawsuit (Initial complaint or Respond-
ent’s complaint) in the Federal District Court of Alaska (Dis-
trict Court) against the Union alleging tortious interference with
the Hotel’s existing and prospective clients and defamation
against Hotel management in an alleged scheme to damage the
Hotel. (Jt. Exh. 3 at Doc. 1, p. 2.) Respondent filed the suit
based on the decision of Monty Bennett, CEO to AHT and
Remington. (Tr. 116; Jt. Exh. 3; Tr. 63.) Respondent’s counsel
conceded that they discussed this filing with Remington.5 (Tr.
63.)
In this initial filing, Respondent defined “Plaintiff” as the
“Hotel” or the “Sheraton Anchorage” and did not distinguish
itself from Remington. (Jt. Exh. 3 at Doc 1, p. 2.) In the initial
complaint, Respondent claimed that through its consumer boy-
cott the Union threatened and harassed individuals in and
around the Hotel with the aim of damaging the Hotel’s business
and bringing the Hotel back to the bargaining table. Id. Re-
spondent did not allege “malice” on the part of any union repre-
sentative at all and also did not specify who made the alleged
threats and did not mention when or where these events took
place. (GC Br. at 8-9.) The initial complaint also sought dam-
ages in an amount to be proven at trial, and its litigation ex-
penses, including reasonable attorney’s fees under Alaska state
law.
On the same day the Initial Complaint was filed, during the
ongoing Remington I hearing, Remington filed a Petition for
Writ of Mandamus in the District Court against the Regional
Director of Region 19 of the NLRB. The Writ, which was
denied, sought to stay the Remington I hearing until a vote on
the decertification petition, reopen Remington’s unfair labor
practice charges due to new evidence, and dismiss unfair labor

5 Respondent’s attorney admits that “this [was] a situation where it’s
obviously logical that the Ashford [Respondent] and Remington [Hotel]
people are coming together to discuss this with counsel” and that there
was “communication back and forth between Remington [Hotel] and
Ashford [Respondent] related to this underlying lawsuit.” Tr. At 63.
Specifically, Respondent’s counsel identified emails dated July 16,
2010, and September 14, 2010. Tr. 57. Respondent’s counsel further
admitted that “the initial discussion of the idea of bringing this [Federal
District Court [L]awsuit . . . didn’t arise until July of 2010, didn’t arise
back in November 2009, when the boycott first began. Tr. 53.
practice charges relating to the discharge of 4 employees who
had been subsequently reinstated and delay further unfair labor
practice hearings to allow Remington to participate in the in-
vestigation of new charges filed by the Union (the litany of
unlawful acts alleged and proven in Remington I and Reming-
ton II along with the filing of the denied writ of mandamus
referred to above are collectively referred to hereafter as “Bad
Acts”). (Jt. Exh. 3, Doc. 46 at 43.)
On October 25, 2010, the Union filed a motion to dismiss the
initial complaint, arguing that the defamation and tortious inter-
ference claims lacked sufficient specificity and failed to
demonstrate plausible entitlement to relief given the pleading
standard for First Amendment rights. The Union argued that
the tortious interference claims should be independently dis-
missed because they are preempted by the Act. (Jt. Exh. 3 at
Doc. 20, p. 8.)
On November 24, 2010, Respondent filed its First Amended
Complaint to clarify its relationship with Remington (Jt. Exh. 3
at Doc. 23, p. 2). Respondent filed an opposition to the Un-
ion’s motion to dismiss, arguing that Alaska tort and defama-
tion law governed because the Union’s conduct removed the
consumer boycott from the bounds of protected activity. (Jt.
Exh. 3 at Doc. 24, pp. 1-16.) In addition to the opposition,
Respondent included a sworn statement from the Hotel’s gen-
eral manager, Dennis Artiles, who described a conversation
with a representative for the Louisiana Center for Women in
Government and included a flier entitled “Anchorage Hotel
Workers Rising Fight,” which discussed the ongoing labor
disputes at both the Hotel and the Anchorage Hilton, a nearby
hotel not involved here. (Jt. Exh. 3, Doc. 31-4 at 15.) Artiles
referenced and attached 3 letters dated December 2009, Febru-
ary 2010, and May 2010, received by the Hotel from potential
customers; none of the letters mention violence or specific
threats. (Jt. Exh. 3, Doc 24-1 at 5-7.) The representative pur-
portedly told Artiles that a union representative told her that
their attendees would be required to cross “vigorous picket
lines” and Artiles stated he believed that the individual under-
stood this to be a threat to the safety of her attendees.
Respondent then moved to file a second amended complaint,
which was filed on January 18, 2011, in order to further speci-
fy its allegations. (Jt. Exh. 3 at Docs. 36-37.) The Respondent
added that the Union told Hotel guests and clients that the Hotel
was “doing illegal things,” by firing workers and that the Hotel
intended to “strip its employees of their core benefits.” Re-
spondent also added that the Union made repeated, uninvited
and harassing phone calls to the Alaska Primary Care Associa-
tion. (Jt. Exh. 3 at Doc. 31-1, p. 13.)
On May 5, 2011, in response to the Union’s statement of
supplemental authority, Respondent filed its third amended
complaint, which the Union moved to dismiss, again arguing
that Respondent failed to allege unlawful statements or con-
duct.
E. District Court Findings Regarding the Federal District
Court Lawsuit
On August 4, 2011, the District Court granted the Union’s
motion to dismiss the third amended complaint and dismissed
the lawsuit (the “Federal District Court Lawsuit”) with preju-
ASHFORD TRS NICKEL, LLC 11
dice. (Jt. Exh. 3 at Doc. 58.) With regard to the defamation
claims, the District Court found the statements were made dur-
ing the course of a labor dispute and that traditional Alaska
state law standards do not apply. The District Court further
found the amended complaint lacking and that the Respondent,
as operating lessee of the Hotel, must prove that a statement,
made during the course of a labor dispute, of or concerning the
complainant, contained an actual or implied assertion of objec-
tive fact, which was not true and was made with actual malice.
(Jt. Exh. 3 at Doc. 58, pp.1 & 7.) The District Court dismissed
the claim that the statement that the Hotel “proposed to strip
[the employees] of their core benefits” because the statement
was referencing the Anchorage Hilton, not the Respondent. (Jt.
Exh. 3 at Doc. 58, p. 7-8.) The District Court also concluded
that the statement that the Hotel was “guilty of doing illegal
things, by illegally terminating workers” would be understood
as nothing more than rhetorical hyperbole and as the Union’s
subjective view rather than a statement of fact given the context
of a labor dispute. (Jt. Exh. 3 at Doc. 58, p. 8-9.) The District
Court found that even if the statement were a statement of fact,
the Respondent failed to sufficiently allege the element of actu-
al malice. (Jt. Exh. 3 at Doc. 58, p. 10-11.)
As with the defamation claim, the District Court found that
in the context of a labor dispute, tortious interference claims
must be a statement of or concerning the complainant, contain-
ing an actual or implied assertion of objective fact, which was
false and made with actual malice. (Jt. Exh. 3 at Doc. 58, at 7,
12.) The District Court found that the Union’s statements about
vigorous picket line, and repeated unwelcome phone calls were
protected by the First Amendment and the National Labor Rela-
tions Act. (Jt. Exh. 3 at Doc. 58, p. 12.) The District Court
also noted that the Respondent did not provide any factual sup-
port for the essential element of actual malice and the tortious
interference claims were found to be facially implausible. (Jt.
Exh. 3 at Doc. 58, p. 12.)
The District Court further found that even if Respondent had
alleged plausible tortious interference claims, the claim would
be dismissed as preempted by federal labor law under San Die-
go Building Trades Council v. Garmon, 359 U.S. 236 (1959),
and that no exception to preemption existed, particularly be-
cause Respondent failed to identify any specific conduct
marked by violence and imminent threats to the public order.
(Jt. Exh. 3 at Doc. 58, p. 13-16.) Respondent decided to forgo
its appeal of these District Court findings and so they have
become final. (Tr. 96.)
II. ISSUES
1. Whether Respondent can be held liable under Section
8(a)(1) of the Act, even though it is not the immediate employ-
er of the employees of the Sheraton Anchorage Hotel?
2. Whether Respondent’s tortious interference state law
claims are preempted by the Act and therefore their filing vio-
lates Section 8(a)(1) of the Act?
3. Whether Respondent’s defamation claim is objectively
baseless and filed with retaliatory motive and therefore in viola-
tion of Section 8(a)(1) of the Act?
III. ANALYSIS
1. Respondent can be held liable under Section 8(a)(1) because
of its control over the employees of Sheraton Anchorage Hotel.
Respondent argues that it cannot be held liable for the al-
leged 8(a)(1) charge asserted here because it is not the employ-
er of the employees of the Sheraton Anchorage Hotel.
That an employer is not the employer of the employees
claiming 8(a)(1) protection, does not relieve them of statutory
responsibility under the Act. Fabric Services, Inc., 190 NLRB
540, 542 (1971). In Fabric Services, Respondent Fabric Ser-
vices, Inc. owned the plant facility on which Southern Bell
Telephone and Telegraph Company, a New York corporation,
conducted its operations. Id. at 541. A Fabric Services person-
nel manager ordered Gerald Smoak, a Southern Bell employee
at this plant, to remove union supporting insignia on his pocket
protector. Id. Fabric Services defended itself against the al-
leged unfair labor practice charge by relying entirely and solely
on the grounds that it cannot be found to have violated Section
8(a)(1) because it was not Smoak’s employer. Id. The Board
held that Fabric Services was liable because by virtue of its
ownership of the plant facility and its power to evict Smoak
from its premises, Fabric Services was in a position of “suffi-
cient control” to remove his union supporting pocket protector
or otherwise directly interfere with his ability to show such
support while performing his work. Id. at 542. To support its
broad reading of the Act, the Board cited Section 2(3) of the
Act, which states “The term employee shall include any em-
ployee, and shall not be limited to the employees of a particular
employer, unless the Act specifically states otherwise.” Id. In
addition, Section 2(9) of the Act defines “labor dispute” as
including “any controversy . . . regardless of whether the dispu-
tants stand in the proximate relationship of the employer and
employee.” Id. The Board emphasized that Fabric Services,
“having knowingly participated in the effectuation of an unfair
labor practice, [Fabric Services] placed itself within the orbit of
the Board’s corrective jurisdiction.” Id.
Here, as in Fabric Services, I find that sufficient control is
met because Respondent owns the Hotel that Remington is
operating per their Management Agreement. Beyond merely
owning the Hotel, Respondent was the operating lessee of the
Hotel. (Jt. Exh.3, Doc. 58 at 1.) Moreover, the Management
Agreement states that Remington is required to consult with
Respondent in matters of policy concerning management, sales,
room rates, wage scales, personnel, general overall operating
procedures, economics, and operations.6 The management
agreement also provides for Respondent’s involvement and
management and thus presents an even more compelling case
of sufficient control over Hotel employees than the relationship
scrutinized in Fabric Services.

6 Respondent argues that the Respondent “turned all management
duties–including all matters related to the employment of the employ-
ees–over to Remington [the Hotel].” R. Br. at 36. I reject this argument
based on the aforementioned management agreement language and the
consulting requirement between the Hotel and Respondent and due to
the admitted “community of interest,” the Union being a common op-
ponent, the joint privilege, and overall interconnected relationship
between the two.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
While it is not necessary to prove an interconnected relation-
ship between Respondent and Remington, their proximity and
overlapping dealings in litigation add legitimacy to the argu-
ment that Respondent exercised sufficient and significant con-
trol over Remington employees. Respondent’s counsel, Mr.
Terrell, represented Remington in Remington I and the Writ of
Mandamus. Remington’s in house counsel, Todd Stoller, is
designated custodian of records here. Respondent’s counsel
also asserted a joint privilege with Remington with regard to
documents and communications, recognizing the Union as a
common opponent and that Respondent and Remington also
shared a community of interest for this “common opponent.”
(Tr. 23, 57, 60, 63, 77.) As Acting General Counsel notes,
Respondent defined “Plaintiff” as the “Hotel” or “Sheraton
Anchorage” in its Initial Complaint in the Federal District
Court Lawsuit.
Moreover, as stated above, Respondent’s counsel admits
that it is “hard to untangle” the Remington I litigation from the
instant proceeding and that Remington and Respondent share a
community of interest related to the Union, their common op-
ponent. (Tr. 61:7-17; 77:9-24.) Respondent and Remington
have shared counsel with regard to proceedings involving the
Union for almost 5years now. (Tr. 60:5-21; 57:13-58:10; 23:3-
6.) Respondent’s counsel further admitted and opined that
“We’re dealing with one hotel as to which [Respondent] is the
owner, Remington is the management company.” (Tr. 63:15-
18.) “It’s the employees in the [H]otel and the collective bar-
gaining relationship that is at issue.” (Tr. 72.)
Respondent contends that Fabric Services is outdated and
should be reversed. Any arguments regarding the legal integri-
ty of Board precedent, however, are properly addressed to the
Board. I am bound to follow Board precedent that has not been
reversed by the Supreme Court or the Board itself. See Path-
mark Stores, 342 NLRB 378 fn. 1 (2004); Hebert Industrial
Insulation Corp., 312 NLRB 602, 608 (1993); Lumber & Mill
Employers Assn., 265 NLRB 199 fn. 2 (1982), enfd. 736 F.2d
507 (9th Cir. 1984), cert. denied 469 U.S. 934 (1984).
Thus, while Respondent is not the direct employer of the
employees of Sheraton Anchorage, I find that Respondent is
liable under the Act as an employer for the 8(a)(1) charges
asserted here for the reasons explained below.
2. Respondent’s allegations of tortious interference of: (1)
contractual relations; and (2) prospective economic advantage
under Alaskan state law are preempted by the Act and its filing
violates Section 8(a)(1) because consumer boycott activity is
protected under Section 7 of the Act.
The Supreme Court concluded that the Act does not prohibit
lawsuits filed in state or federal courts, unless they are both
objectively baseless and contain retaliatory motive. BE&K
Construction Co. v. NLRB, 536 U.S. 516 (2002); Bill Johnson’s
v. NLRB, 461 U.S. 731 (1983). However, footnote 5 in Bill
Johnson’s creates an exception for lawsuits beyond the jurisdic-
tion of the state courts due to federal preemption. (Id. at 737,
fn. 5.) Moreover, the Board has interpreted this footnote to
mean that preempted lawsuits are outside the scope of First
Amendment protection. Federal Security, Inc., 359 NLRB 1
slip op. at 13 (2012).
The threshold question in any preemption analysis involving
the Act is whether “it is clear or may fairly be assumed” that
the activity which a State purports to regulate is protected or
prohibited by the Act. Federal Security, Inc. at 7, citing San
Diego Building Trades Council v. Garmon, 359 U.S. 236, 244
(1959). If that question is answered in the affirmative, the in-
quiry is at an end and “state jurisdiction must yield.” Id.
Section 7 of the Act provides that Employees shall have the
right to self-organization, to join, form, or assist labor organiza-
tions, to bargain collectively through representation of their
choosing, and to engage in other concerted activities, for the
purpose of collective bargaining or other mutual aid or protec-
tion. 29 U.S.C. Section 157. The Board has held that the pro-
tection of consumer boycott activity falls within Section 7 of
the Act. Sears, Roebuck & Co., 436 U.S. 180 at 206 fn. 42, 98
S.Ct. 1745 (1978); NLRB v. Calkins, 187 F.3d 1080, 1086 (9th
Cir. 1999). As pointed out by the General Counsel, the Board
has long held that a request that customers not patronize an
employer in the context of a labor dispute constitutes Section 7
activity (Valley Hospital Medical Center, Inc., 351 NLRB
1250, 1252–1254 (2007); Arlington Electric, 332 NLRB 845,
846 (2000)) and that providing notice that lawful conduct, such
as a protected consumer boycott, will occur is also protected
under the Act (NLRB v. Servette, Inc. 377 U.S. 46, 57 (1964).
Respondent’s Federal District Court Lawsuit did not merely
involve some peripheral concern of the Act because it targeted
the Union’s consumer boycott activity that, as stated above,
contacting an Company’s customer’s, giving notice, and partic-
ipating in a consumer boycott are protected within Section 7 of
the Act. See Federal Security, Inc., at 10 (“We cannot construe
the Respondents’ lawsuit as ‘a merely peripheral concern’ of
the Act, because it targets activities that are ‘at the heart of
Board processes.’”).
I note that, in the past, the Board has found unlawful under
the Act union conduct such as throwing of rocks and placing
tacks in the roads, assaulting employees and supervisors, dam-
aging vehicles, preventing people and vehicles from entering
onto company premises, threats from pickets, fights; beatings,
and mass picketing activity that, when directed at employees,
would unlawfully restrain and coerce them. In contrast, I note
the Board has found that lesser conduct directed at employees,
where “[n]o one is injured, nothing was thrown, no one was
prevented from going to work or leaving, and no vehicle was
harmed or excluded from the premises,” remains protected
under the Act. In the context of strikes and boycotts, the Board
has only found extreme conduct, such as actual physical vio-
lence, threats of actual violence, outrageous behavior; or mali-
ciously untrue or reckless statements to lose Section 7 protec-
tion under the Act. Detroit Newspaper Agency, 342 NLRB 223
(2004); Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978). Ab-
sent outrageous or violent conduct, tortious interference claims
are wholly preempted in the context of labor disputes. Milum
Textile Services Co., 357 NLRB slip op. at 4 (citing In re Sew-
ell, 690 F.2d 403, 408 (4th Cir. 1982)).
Respondent’s argument is that the Union’s consumer boycott
lost its Section 7 protection because its representatives threat-
ened the Hotel’s actual and prospective clients. Respondent’s
only specific example is Remington Hotel General Manager
ASHFORD TRS NICKEL, LLC 13
Artiles’ unsubstantiated belief that the remark to potential
guests about having to cross vigorous picket lines was per-
ceived as a threat.7 The District Court found that the statement
about crossing “vigorous” picket lines cannot possibly be per-
ceived as threats and were protected under the Act because they
did not constitute outrageous or violent conduct. (Jt. Exh. 3,
Doc. 58 at 13.) Since the only statement specified was not a
threat, the Union’s consumer boycott remained protected by the
Act. See also GC Exhs. 2-3.
The filing and maintenance of a preempted lawsuit may vio-
late Section 8(a)(1) if it tends to interfere with, restrain, or co-
erce employees in the exercise of their Section 7 rights, regard-
less of motive or whether the lawsuit is objectively baseless.
J.A. Croson Co., 359 NLRB 19, 25 (2012); Webco Industries,
337 NLRB 361, 363 (2001). Lawsuits that punish and deter
conduct protected by Section 7 are unlawful. Federal Security,
Inc., 359 NLRB 1 (2012).
Here, in filing its Federal District Court Lawsuit claiming
economic injury due to the consumer boycott, notice thereof,
and the Union’s contact with the Hotel’s customers which
sought to impose damages including Respondent’s attorney’s
fees against the Union, I find that Respondent intended to pun-
ish and deter employees from participating in the protected
activity as the lawsuit, though ultimately proven unsuccessful,
imposed a costly and prohibitive burden on the Union’s invoca-
tion of and participation in the protected consumer boycott. As
a result, I find that the Federal District Court Lawsuit was
barred by Federal labor law in the absence of any evidence of
actual malice. Thus, Respondent’s filing and maintenance of its
preempted tortious interference claims as part of its Federal
District Court Lawsuit violates Section 8(a)(1) of the Act.
3. Respondent’s Federal District Court Lawsuit also violates
section 8(a)(1) because the lawsuit is both objectively baseless
and filed with retaliatory motive
As stated above, when a lawsuit lacks a reasonable basis of
law or fact and contains retaliatory motive, the Board may pro-
hibit it as an unfair labor practice. BE&K Construction Co. v.
NLRB, 536 U.S. 516 (2002); Bill Johnson’s v. NLRB, 461 U.S.
731, 748–749 (1983). To avoid chilling the First Amendment
right to petition, the Board in BE&K concluded that the Act
only prohibits lawsuits that are both objectively and subjective-
ly baseless. BE&K at 528.
A lawsuit is objectively baseless or lacks a reasonable basis
of law or fact if no reasonable litigant could realistically expect

7 Artiles’ credibility was further shown to be unreliable in Reming-
ton I, where the Board affirmed ALJ Meyerson’s credibility finding
that in November 2009, Artiles instructed the Hotel’s former director of
catering “to fabricate numbers” or “pad” and intentionally misrepresent
the Hotel’s loss because of the Union boycott when, in fact, instead of
losing money, the Hotel was making money and leading the region in
sales at the time of the boycott. (GC Exh. 4 at 27-28.) As discussed
further in the next section of this decision, I find that this misleading
conduct on the part of Respondent’s Hotel’s management before the
filing of the Federal District Court Lawsuit is extraordinary and when
combined with the litany of Bad Acts alleged and found against the
Hotel and its management from 2009-2013 evidence Respondent’s
retaliatory motive in filing its baseless Federal District Court Litigation.
success on the merits. BE&K II, 351 NLRB 451, 457 (2007)
(quoting Professional Real Estate Investors, Inc., v. Columbia
Pictures Industries, Inc., 508 U.S. 49, 60 (1993)). The Board
has held that retaliatory motive may be inferred from, among
other things, the fact that the lawsuit was filed in response to
protected activity; that the employer-plaintiff bore animus to-
ward the union-defendant and particularly toward its protected
activity; and that the lawsuit obviously lacked merit. Allied
Mechanical Services, 357 NLRB 1223, 1232–1233 (2011),
enforcement denied, NLRB v. Allied Mechanical Services, Inc.,
___F.3d ___ (6th Cir. Oct. 30, 2013).8
In Milum Textile Services Co., 357 NLRB 2047, 2050–2051
(Dec. 30, 2011), the Board found that an employer’s failure to
present any factual evidence of actual malice is an indication of
a baseless suit where libel and tortious interference claims were
alleged. The Board concluded that no reasonable litigant could
reasonably expect success on the merits when a litigant has no
evidence to establish a critical element of its case. Id. at 2051.
Here, as in Milum, I find that Respondent had no hope of
success on its equally baseless claims against the Union as it
failed to properly allege actual malice with factual support.
The term ‘actual malice’ did not appear in the Federal District
Court Lawsuit until the Third Amended Complaint was filed.
One of the allegedly defamatory statements did not even relate
to the Hotel, but rather to the Anchorage Hilton. After Re-
spondent’s numerous attempts to allege defamation, the District
Court granted the Union’s Rule 12(b)(6) motion and found that
Respondent did not sufficiently allege actual malice and finally
dismissed the amended complaint with prejudice. The Re-
spondent decided to forgo its appeal of these District Court
findings and so they have become final. 9 (Tr. 96.)
As stated above, the tortious interference claims were obvi-
ously preempted by Federal labor law and never had merit. In
addition, the defamation cause of action was also objectively
baseless as there was a similar lack of actual malice on the part
of the Union in publishing any statements. Furthermore, there
was the lack of actual damage suffered by the Respondent as
the result of any statements or acts by the Union given the fact

8 On application for enforcement to the U.S. Court of Appeals for
the Sixth Circuit, the Appellate Court on October 30, 2013, in a 2-1
decision denied the petition for enforcement of the Board’s order and
disagreed with the Board’s earlier analysis in the same case. For the
same reason stated earlier in this decision challenging the ongoing
validity of the Board’s Fabric Services decision, the Board’s Allied
Mechanical Services decision remains binding legal precedent and any
questions concerning the legal integrity of the October 2011 Board
Decision in Allied are properly addressed to the Board. I am bound to
follow Board precedent that has not been reversed by the Supreme
Court or the Board itself. See Pathmark Stores, 342 NLRB 378 fn. 1
(2004); Hebert Industrial Insulation Corp., 312 NLRB 602, 608
(1993); Lumber & Mill Employers Assn., 265 NLRB 199 fn. 2 (1982),
enfd. 736 F.2d 507 (9th Cir. 1984), cert. denied 469 U.S. 934 (1984).
9 “The showing of lack of merit required in order to prevail on a
Rule 12(b)(6) motion to dismiss is more demanding than the showing
required for summary judgment or a directed verdict in that the allega-
tions of the complaint are assumed to be true for purposes of a motion
to dismiss, while a plaintiff must have evidence to support its material
allegations in order to survive a motion for summary judgment or di-
rected verdict.” Allied Mechanical Services, slip op. at 7, fn. 37.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
that the Hotel and Respondent did not actually lose money from
the protected activities referenced in the lawsuit but, instead,
made money and lead the region in sales at the time of the pro-
tected consumer boycott.10 (See GC Exh. 4 at 27-28; fn. 4
herein.) Thus, Respondent’s Federal District Court Lawsuit
which challenges the Union’s consumer boycott through its
allegations of preempted tortious interference claims and defa-
mation is objectively and subjectively baseless as these legal
theories are not colorable and no reasonable litigant could real-
istically expect success on the merits of the lawsuit especially
when Respondent had no evidence to establish actual malice - a
critical element of each claim in its Federal District Court Law-
suit.
Respondent argues that because its Federal District Court
Lawsuit was reasonably based, its motive for filing the lawsuit
is irrelevant and its filing protected by the First Amendment.
As stated above, I find that Respondent’s filing of it Federal
District Court Lawsuit was not reasonably based and was, in-
stead, baseless. Moreover, I further find that Respondent is not
entitled to First Amendment protection in the filing of its law-
suit because it is both objectively and subjectively baseless.
Here, Respondent demonstrates the requisite retaliatory mo-
tive in multiple ways. First, the lawsuit was retaliatory on its
face as it targeted protected conduct and sought money damag-
es and attorney fees from the Union based on its statutorily
protected conduct–conducting a consumer boycott and com-
plaining about unlawful suspensions for collective-bargaining
purposes. See Allied Mechanical Services, slip op. at 10 (law-
suit that on its face addressed protected strikes and job targeting
programs unlawful and supports a finding of retaliatory mo-
tive). See also Petrochem Insulation, 330 NLRB 47, 50 (1999),
enf. 240 F.3d 26 (D.C. 2001) (Because the litigant could have
no realistic expectation of prevailing on the merits of its law-
suit, it must have filed the lawsuit for some other reason.). The
pleading itself makes mention of a series of union acts, includ-
ing participation in and advertising of the consumer boycott and
complaints of illegal suspensions, allegedly to bring the Hotel
back to the bargaining table. (Jt. Exh. 3 at 2-5.)
Secondly, as established above, the lawsuit was not simply
“unsuccessful,” it was baseless and obviously lacked merit
because a necessary element of each claim was consistently
deficient despite multiple opportunities to amend. See Allied
Mechanical Services, slip op. at 12 (Filing of baseless action
though not in and of itself dispositive suggests a retaliatory
motive.). Finally, the timing of the Federal District Court Law-
suit filing in September 2010, in light of the filed ULP charges,
the 2009 consumer boycott, numerous NLRB hearings and
testimony, and prior findings that the Hotel and its management
acted unlawfully against the Union through its litany of Bad
Acts beginning in 2009 through at least 2011, strongly suggests

10 Respondent argues that “the evidence points only to a non-
employer hotel owner which filed a lawsuit because it had suffered,
over the preceding 10 months, real losses as a consequence of an over-
zealous boycott by [the Union’s] national and local leadership. R. Br.
At 36. I dismiss this argument as it is baseless and contrary to the fact
that Respondent and the Hotel actually led the region in sales during the
stated time period.
an extraordinary type of unlawful animus against the Union, an
admitted common opponent, as an added tactic to further pun-
ish and financially injure the Union and restrict its protected
activities. I find that Respondent had a retaliatory motive in
bringing the Federal District Court Lawsuit against the Union
under these unique circumstances.
Stated differently, I find that Respondent’s Federal District
Court Lawsuit was nothing more than one more baseless, yet
retaliatory, act in the Respondent’s and the Hotel’s continued
retaliatory efforts to conduct an extraordinary full out financial
war against the Union to punish it and deplete its resources as
part of their overall strategy of nonstop unfair labor practices
and Bad Acts against the Union in 2009-2011. While it may not
be uncommon for ill will or animus to exist between litigants in
a single garden variety legal dispute or when a new own-
er/employer inherits the presence of an unwanted union at its
establishment, the admitted “community of interest” retaliatory
motives displayed here by Respondent and its Hotel against the
Union as evidenced by the multitude of Bad Acts and the filing
of the unsupported Federal District Court Litigation are ex-
treme, unique, and extraordinary. I further find that Respond-
ent’s unlawful animus against the Union became known as part
of Respondent’s strategy once charges were filed by the Union
alleging and later proving unlawful acts and continued to be
proven with alarming regularity as the NLRB hearings com-
menced and Union members testified from 2010-2012. In par-
ticular, the filing of the Federal District Court Litigation was
the well-orchestrated retaliatory response to the Union’s at-
tempt to bargain in good faith for a new CBA, the continuing
ULP’s, the Union’s protected consumer boycott, the NLRB
hearings, the failed attempt to illegally withdraw recognition of
the Union, the general manager’s misstatement of Hotel sales
over the 10 month period leading to the lawsuit, and the denied
filing of a Writ of Mandamus. Thus, I am convinced beyond
all doubt and find that Respondent’s retaliatory motive has been
proven and Respondent violated Section 8(a)(1) when it filed
and maintained its baseless Federal District Court Lawsuit.
CONCLUSIONS OF LAW
1. Ashford TRS Nickel, LLC, Ashford Hospitality Trust,
Inc., and the AHT affiliated entities, a single business enter-
prise and single employer (Respondent) is and has been an
employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union, UNITE HERE!, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By instituting and pursuing its Federal District Court
Lawsuit against the Union on September 23, 2010, that is
preempted by federal law or that lacks a reasonable basis and is
motivated by an intent to retaliate against activity protected by
Section 7 of the Act, Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act and has violated Section 8(a)(1) of the
Act.
REMEDY
Having found that Respondent has engaged in certain unfair
ASHFORD TRS NICKEL, LLC 15
labor practices, I shall recommend that it cease and desist there-
from and take certain affirmative action designated to effectu-
ate the policies of the Act.
The Respondent, having unlawfully instituted and pursued a
lawsuit against the Union, shall also reimburse the Union for
any litigation expenses directly related to its defense in the
Federal District Court Lawsuit filed on September 23, 2010,
plus interest. J.A. Croson Co., 359 NLRB 19, 31 (2012). Inter-
est is to be computed in the manner prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 8 (2010), enf.
denied on other grounds sub. nom., Jackson Hospital Corp. v.
NLRB, 647 F.3d 1137 (DC Cir. 2011). Such a remedy is stand-
ard in cases, where the respondents have filed unlawful law-
suits or arbitrations under Board law. Federal Security, supra,
359 NLRB at 14; Standard Drywall, supra, 357 NLRB at 5;
Duane Reade, supra, 342 NLRB at 1015.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended11
ORDER
The Respondent, Ashford TRS Nickel, L.L.C., Ashford Hos-
pitality Trust, Inc. (AHT), and all AHT affiliated enterprises, a
single business enterprise and single employer, its officers,
agents, and representatives shall
1. Cease and desist from
(a) Instituting and pursuing any lawsuit against the Union
that is preempted by Federal law or that lacks a reasonable
basis and is motivated by intent to retaliate against activity
protected by Section 7 of the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Reimburse the Union for all legal and other expenses in-
curred related to the defense in the Federal District Court Law-
suit filed by Respondent against the Union on September 23,
2010, with interest compounded on a daily basis as described in
the remedy section of this decision.
(b) Within 14 days after service by the Region, post at its
Sheraton Anchorage, Alaska Hotel (Hotel), copies of the at-
tached notice marked “Appendix.”12 Copies of the notice, on
forms provided by the Regional Director for Region 19, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. In addition to

11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. If the Respondent has gone out of business or closed
the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current Hotel employees and former Hotel employees em-
ployed by the Respondent at any time since September 23,
2010.
(c) Within 21 days after service by the Region, file with the
Regional Director for Region 19 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated, Washington, D.C. November 18, 2013
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising the
above rights.
WE WILL NOT in any like or related manner interfere with
your rights under Section 7 of the National Labor Relations Act
(the “Act”).
WE WILL NOT institute, pursue, and/or maintain any lawsuit
against UNITE HERE! Local 878 (the “Union”) that instituting
and pursuing its Federal District Court Lawsuit against the
Union on September 23, 2010, that is preempted by Federal law
or that lacks a reasonable basis and is motivated by an intent to
retaliate against activity protected by Section 7 of the Act.
WE WILL reimburse the Union for all legal and other expens-
es incurred in the defense of our September 23, 2010, Federal
District Court Lawsuit filed against the Union, with interest
compounded daily.
ASHFORD TRS NICKEL AND ITS AFFILIATED
ENTERPRISES
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/19-CA-032761 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-
1940.