01-518 BE&K Construction co. v. NLRB, et al.

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The Board’s definition of a retaliatory suit as one brought with a motive to interfere with the exercise of protected NLRA º7 rights covers a substantial amount of genuine petitioning. For example, an employer’s suit to stop what the employer reasonably believes is illegal union conduct may interfere with or deter some employees’ exercise of NLRA rights. But if the employer’s motive still reflects a subjectively genuine desire to test the conduct’s legality, then declaring the suit illegal affects genuine petitioning. The Board also claims to rely on evidence of antiunion animus to infer retaliatory motive. Yet ill will is not uncommon in litigation, and this Court, in other First Amendment contexts, has found it problematic to regulate some demonstrably false expression based on the presence of ill will. Thus, the difficult constitutional question is not made significantly easier by the Board’s retaliatory motive limitation. The final question is whether in light of the NLRA’s important goals, the Board may nevertheless burden an unsuccessful but reasonably based suit that was brought with a retaliatory purpose. While the speech burdens are different here than in the antitrust context, the Court is still faced with the difficult constitutional question whether a class of petitioning may be declared unlawful when a substantial portion is subjectively and objectively genuine. This Court avoided a similarly difficult First Amendment issue in Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575, by adopting a limiting construction of the relevant NLRA provision. Section 158(a)(1)’s prohibition on interfering, restraining, or coercing is facially as broad as the prohibition in DeBartolo, and it need not be read so broadly as to reach the entire class of cases the Board has deemed retaliatory. Because nothing in sec. 158(a)(1)’s text indicates that it must be read to reach all reasonably based but unsuccessful suits filed with a retaliatory purpose, the Court declines to do so. And because the Board’s standard for imposing NLRA liability allows it to penalize such suits, its standard is invalid.

246 F.3d 619, reversed and remanded.

Local effect:

The decision does not change the standard for determining whether a suit is baseless in the Seventh Circuit. Geske & Sons, Inc. v. NLRB, 103 F.3d 1366, 1372 (7th Cir. 1997).

O’Connor, J.; Scalia, J., concurring; Breyer, J., concurring in part and concurring in the judgment.