BE & K Construction Company v. National Labor Relations Board

PETITIONER:BE & K Construction Company
RESPONDENT:National Labor Relations Board
LOCATION:The Cleveland Metropolitan School District

DOCKET NO.: 01-518
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 536 US 516 (2002)
ARGUED: Apr 16, 2002
DECIDED: Jun 24, 2002

Deputy Solicitor General Wallace – argued the cause for respondents
Lawrence G. Wallace – Argued the cause for the respondents
Maurice Baskin – Argued the cause for the petitioner

Facts of the case

In filing suit against a group of unions, BE&K Construction Company alleged that the unions had engaged in lobbying, litigation, and other concerted activities in order to delay a project it had been hired for because it employed nonunion workers. After BE&K lost on or withdrew each of its claims, the National Labor Relations Board issued an administrative complaint, alleging that BE&K, by filing and maintaining its lawsuit, had violated the National Labor Relations Act (NLRA), which prohibits employers from restraining, coercing, or interfering with employees’ exercise of rights related to self-organization, collective bargaining, and other concerted activities. Finding that the lawsuit was filed to retaliate against the unions, whose conduct was protected under the NLRA, the Board ordered BE&K to cease and desist from prosecuting such suits. In granting the Board’s enforcement petition, the Court of Appeals held that because the Judiciary had already found BE&K’s claims against the unions unmeritorious or dismissed, evidence of a simple retaliatory motive sufficed to adjudge BE&K of committing an unfair labor practice.


Did the Court of Appeals err in holding that the National Labor Relations Board may impose liability on an employer for filing a losing retaliatory lawsuit, even if the employer could show the suit was not objectively baseless?

Media for BE & K Construction Company v. National Labor Relations Board

Audio Transcription for Oral Argument – April 16, 2002 in BE & K Construction Company v. National Labor Relations Board

Audio Transcription for Opinion Announcement – June 24, 2002 in BE & K Construction Company v. National Labor Relations Board

William H. Rehnquist:

The opinion of the Court in No. 01-518, BE & K Construction Company versus National Labor Relations Boars will be announced by Justice O’Connor.

Sandra Day O’Connor:

This case comes here on writ of certiorari to the Court of Appeals for the Sixth Circuit.

Petitioner is an industrial contractor which received a contract to modernize a California Steel Mill.

The petitioner and the mill owner later filed a federal law suit against several unions claiming the labor unions had engaged in lobbying, litigation, and other activities in order to delay the project because the petitioner employed non-union employees.

The petitioner eventually lost or withdrew each of its claims in the law suit.

In the meantime, two labor unions lodged complaints against the petitioner with the National Labor Relations Board.

The Board’s general counsel then issued a complaint alleging that the petitioner had violated the National Labor Relations Act by filing and maintaining it federal law suit.

The Board ruled in favor of the general counsel finding that petitioner’s law suit had not been meritorious and had been filed to retaliate against the unions.

The Board ordered the petitioner to pay the union’s legal fees to stop prosecuting such suits and to post notices of the Board’s findings at appropriate places.

The Sixth Circuit Court of Appeals enforced the Board’s order.

We granted certiorari, and in an opinion filed today with the Clerk of the Court, we reverse and remand.

The First Amendment’s petition clause protects the right to petition the Government for a redress of grievances.

We have considered this right in the past when interpreting certain federal laws.

For example, in the anit-trust context, we have held that genuine petitioning is immune from anti-trust liability.

This case raises the same basic issue of when litigation, a form of petitioning, may be found to violate federal law, but this time, we deal with it in the labor law context.

Previously, we have held that the Labor Relations Board may enjoin baseless lawsuits brought with the retaliatory motive, but the issue here is the standard for declaring completed law suits unlawful with respect to a class of lawsuits that are not baseless.

In the anti-trust context, our standard for immunity protects all reasonably based petitioning or lawsuits as well as all petitioning unmotivated by anti-competitive intent.

The Labor Relations Board argues that such broad immunity is unnecessary here because most labor law adjudications cannot be launched solely by private action and because the Board’s remedies are not punitive.

But this does not mean that the Board’s penalties raise no First Amendment concerns for if the board can declare a suit unlawful, the finding of illegality alone is a burden on petitioning.

Here, such a burden affects a class of reasonably based but unsuccessful lawsuits that the Board finds to be retaliatory.

Although we have analogized baseless lawsuits, default statements that are outside the scope of the First Amendment, that analogy does not directly extend to reasonably based but unsuccessful lawsuits.

The Board confines its penalties to retaliatory suits which it defines as suit brought with a motive to interfere with the exercise of rights protected by federal labor law, but even with this limitation, the Board’s standard is still broad enough to cover many suits that are genuine attempts to test the legality of conduct the plaintiff reasonably believes to be illegal under other federal law.

Thus, there is a serious constitutional question under the First Amendment.

Since nothing in the relevant statutory text requires that the statute be read so broadly as to reach all reasonably based but unsuccessful lawsuits filed with a retaliatory purpose, we decline to do so.

We hold that the Board’s standard is invalid under the applicable statute.

We reverse the Sixth Circuit’s judgment and remand for further proceedings consistent with our opinion.

Justice Scalia has filed a concurring opinion in which Justice Thomas joined; Justice Breyer has filed an opinion concurring in part and concurring in the judgment which Justices Stevens, Souter, and Ginsburg have joined.