BE&K Constr. Co. v. NLRB, 536 U.S. 516, 24 (2002)

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

Opinion of Breyer, J.

interfere with protected union conduct. See ante, at 532- 533. The Court holds that the National Labor Relations Act (NLRA or Act) does not permit the National Labor Relations Board to declare unlawful under 8(a) of the Act, 29 U. S. C. 158(a), an employer's filing suit in the circumstances present here, which is to say, in the kind of case in which the Board rests its finding of "retaliatory motive" almost exclusively upon the simple fact that the employer filed a reasonably based but unsuccessful lawsuit and the employer did not like the union. Ante, at 522-524. The Court expressly leaves open other circumstances in which the evidence of "retaliation" or antiunion motive might be stronger or different, showing, for example, an employer, indifferent to outcome, who intends the reasonably based but unsuccessful lawsuit simply to impose litigation costs on the union. Ante, at 536-537; see also Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U. S. 49, 73-76 (1993) (Stevens, J., joined by O'Connor, J., concurring in judgment) (discussing colorable suits that would not be filed but for an illegal purpose). And it does not address at all lawsuits the employer brings as part of a broader course of conduct aimed at harming the unions and interfering with employees' exercise of their rights under 7(a) of the NLRA, 29 U. S. C. 157.

I concur in the Court's opinion insofar as it holds no more than I have just set forth. While I recognize the broad leeway the Act gives the Board to make findings and to determine appropriate relief, 10(c), 29 U. S. C. 160; see NLRB v. Gissel Packing Co., 395 U. S. 575, 612, n. 32 (1969); Shepard v. NLRB, 459 U. S. 344, 349 (1983), I concur because the descriptions given by the Board and the Court of Appeals of the Board's reasons for finding unlawful employer activity here, insofar as they are probative, seem to me to rest on little more than the fact that the employer filed a reasonably based but ultimately unsuccessful lawsuit. See 329 N. L. R. B. No. 68 (1999), App. to Pet. for Cert. 59a-61a


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