BE&K Constr. Co. v. NLRB, 536 U.S. 516, 8 (2002)

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Cite as: 536 U. S. 516 (2002)

Opinion of the Court

the NLRA. The panel first concluded that the unions' conduct was protected activity, id., at 50a-59a, and then decided that petitioner's lawsuit had been unlawfully motivated because it was "directed at protected conduct" and "necessarily tended to discourage similar protected activity," and because petitioner admitted it had filed suit " 'to stop certain [u]nion conduct which it believed to be unprotected,' " id., at 59a- 60a. The panel found additional evidence of retaliatory motive because petitioner had sued some unions that were not parties to the state court lawsuit. Id., at 60a. The panel also found evidence of retaliatory motive because petitioner's LMRA claims had an "utter absence of merit" and had been dismissed on summary judgment. Id., at 61a. After determining that petitioner's suit had violated the NLRA because it was unsuccessful and retaliatory, the panel ordered petitioner to cease and desist from prosecuting such suits and to post notice to its employees admitting it had been found to have violated the NLRA and promising not to pursue such litigation in the future. Id., at 65a-67a. The panel also ordered petitioner to pay the unions' legal fees and expenses incurred in defense of the federal suit. Id., at 65a.

Petitioner sought review of the Board's decision in the United States Court of Appeals for the Sixth Circuit, and the Board cross-petitioned for enforcement of its order. The Sixth Circuit granted the Board's petition. Relying on Bill Johnson's Restaurants, Inc. v. NLRB, 461 U. S. 731, 747 (1983), the Sixth Circuit held that "because the judicial branch of government had already determined that [petitioner's] claims against the unions were unmeritorious or dismissed, evidence of a simple retaliatory motive . . . suffice[d] to adjudge [petitioner] of committing an unfair labor practice." 246 F. 3d, at 628. The court rejected petitioner's argument that under Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U. S. 49 (1993), "only baseless or 'sham' suits serve to restrict the otherwise unfettered right to seek court resolution of differences."


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