BE&K Constr. Co. v. NLRB, 536 U.S. 516, 14 (2002)

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

Opinion of the Court

discovery costs. Brief for Respondent NLRB 40-41. According to the Board, however, such broad protection is unnecessary in the labor law context because, outside of the LMRA, enforcement of the NLRA requires the Board's general counsel to first authorize the issuance of an administrative complaint; thus, an adjudication cannot be launched solely by private action. See 29 U. S. C. 153(d); NLRB v. Food & Commercial Workers, 484 U. S. 112, 118-119 (1987). Nor can the Board issue punitive remedies, see Republic Steel Corp. v. NLRB, 311 U. S. 7, 10-12 (1940), and instead is limited to restoring the previolation status quo, see id., at 12-13; NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U. S. 258, 265 (1969). The Board also allows "little prehearing discovery." NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214, 236 (1978).

At most, however, these arguments demonstrate that the threat of an antitrust suit may pose a greater burden on petitioning than the threat of an NLRA adjudication. This does not mean the burdens posed by the NLRA raise no First Amendment concerns. To determine if they do, we must first isolate those burdens.

Here, the Board's determination that petitioner's lawsuit violated the NLRA resulted in an order requiring petitioner to post certain notices, refrain from filing similar suits, and pay the unions' attorney's fees. Petitioner did not challenge below the Board's authority to impose the notice and injunction penalties upon a finding of illegality, but did challenge the Board's authority to award attorney's fees, albeit unsuccessfully. 246 F. 3d, at 631-632. Although petitioner sought review of the fee issue, Pet. for Cert. i, we did not grant certiorari on that specific question, instead asking the parties to address whether the Board may impose liability for a retaliatory lawsuit that was unsuccessful even if it was not objectively baseless. 534 U. S. 1074 (2002).

As we see it, a threshold question here is whether the Board may declare that an unsuccessful retaliatory lawsuit

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