BE & K CONSTRUCTION COMPANY v. NATIONAL LABOR RELATIONS BOARD

Legal Principle at Issue

Did the Court of Appeals err in holding that under Bill Johnsons Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983), the NLRB may, consistent with the First Amendment, impose liability on an employer for filing a losing retaliatory lawsuit, even if the employer could show the suit was not objectively baseless?

Action

Reversed and remanded. Petitioning party received a favorable disposition.

Facts/Syllabus

Petitioner, who had a contract to modernize a steel mill, and the mill owner filed a federal lawsuit against respondent unions, claiming that the unions had engaged in lobbying, litigation, and other concerted activities in order to delay the project because petitioner had nonunion employees. Ultimately, petitioner lost on or withdrew each of its claims. In the meantime, two unions lodged complaints against petitioner with the National Labor Relations Board. 

After the federal court proceedings ended, the NLRB's general counsel issued an administrative complaint, alleging that petitioner, by filing and maintaining its lawsuit, had violated the National Labor Relations Act, which prohibits employers from restraining, coercing, or interfering with employees' exercise of rights related to self-organization, collective bargaining, and other concerted activities. The NLRB ruled in the general counsel's favor, finding that the lawsuit was unmeritorious because its claims were dismissed or voluntarily withdrawn with prejudice, and that it was filed to retaliate against the unions, whose conduct was protected under the NLRA. It ordered petitioner to cease and desist from prosecuting such suits, to post notice to its employees acknowledging the Board's finding and promising not to pursue such litigation in the future, and to pay the unions' legal fees and expenses incurred in the lawsuit. 

The U.S. Court of Appeals for the Sixth Circuit granted the NLRB's enforcement petition. Relying on Bill Johnson's Restaurants, Inc. v. NLRB, it held that because the judiciary had already found petitioner's claims against the unions unmeritorious or dismissed, evidence of a simple retaliatory motive sufficed to adjudge petitioner of committing an unfair labor practice. It also rejected petitioner's argument that under Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., only baseless or sham suits can restrict the otherwise unfettered right to seek court resolution of differences, finding that case inapplicable because its immunity standard was established in the antitrust context.