BE&K Constr. Co. v. NLRB, 536 U.S. 516, 18 (2002)

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

Opinion of the Court

fact that it loses does not mean it is false. At most it means the plaintiff did not meet its burden of proving its truth. That does not mean the defendant has proved—or could prove—the contrary.

Because the Board confines its penalties to unsuccessful suits brought with a retaliatory motive, however, we must also consider the significance of that particular limitation, which is fairly included within the question presented. See 534 U. S. 1074 (2002) (granting certiorari on whether the 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" (emphasis added)).


In the context of employer-filed lawsuits, we previously indicated that retaliatory suits are those "filed in retaliation for the exercise of the employees' [NLRA] 7 rights." Bill Johnson's, 461 U. S., at 747. Because we did not specifically address what constitutes "retaliation," however, the precise scope of that term was not defined. The Board's view is that a retaliatory suit is one "brought with a motive to interfere with the exercise of protected [NLRA ]7 rights." Brief for Respondent NLRB 46 (emphasis added). As we read it, however, the Board's definition broadly covers a substantial amount of genuine petitioning.

For example, an employer may file suit to stop conduct by a union that he reasonably believes is illegal under federal law, even though the conduct would otherwise be protected under the NLRA. As a practical matter, the filing of the suit may interfere with or deter some employees' exercise of NLRA rights. Yet the employer's motive may still reflect only a subjectively genuine desire to test the legality of the conduct. Indeed, in this very case, the Board's first basis for finding retaliatory motive was the fact that petitioner's suit related to protected conduct that petitioner believed was unprotected. App. to Pet. for Cert. 59a-60a. If such


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