BE&K Constr. Co. v. NLRB, 536 U.S. 516, 12 (2002)

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

Opinion of the Court

and prosecution of a well-founded lawsuit" from being "en-joined as an unfair labor practice, even if it would not have been commenced but for the plaintiff's desire to retaliate against the defendant for exercising rights protected by the [NLRA]." Id., at 737, 743. We also held that the Board may not decide that a suit is baseless by making credibility determinations, as the ALJ had done, when genuine issues of material fact or state law exist. Id., at 745, 746-747. In recognition of our sham exception to antitrust immunity, however, we reasoned that "[w]e should follow a similar course under the NLRA" and held that the Board could enjoin baseless suits brought with a retaliatory motive, id., at 744 (citing California Motor Transport, supra), and then remanded for further proceedings, 461 U. S., at 749.

At issue today is not the standard for enjoining ongoing suits but the standard for declaring completed suits unlawful. In Bill Johnson's, we remarked in dicta about that situation:

"If judgment goes against the employer in the state court, . . . or if his suit is withdrawn or is otherwise shown to be without merit, the employer has had its day in court, the interest of the State in providing a forum for its citizens has been vindicated, and the Board may then proceed to adjudicate the . . . unfair labor practice case. The employer's suit having proved unmeritorious, the Board would be warranted in taking that fact into account in determining whether the suit had been filed in retaliation for the exercise of the employees' [NLRA] 7 rights. If a violation is found, the Board may order the employer to reimburse the employees whom he had wrongfully sued for their attorney's fees and other expenses. It may also order any other proper relief that would effectuate the policies of the [NLRA]." Id., at 747.

Under this standard, the Board could declare that a lost or withdrawn suit violated the NLRA if it was retaliatory. In


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