540
Opinion of Breyer, J.
(finding retaliatory motive because the suit was "directed at protected conduct," "necessarily tended to discourage similar protected activity," was admittedly brought to stop conduct BE&K Construction Company thought was unprotected, involved unions other than those parties to certain suits against the company, and was unmeritorious); 246 F. 3d 619, 629-630 (CA6 2001). Bill Johnson's Restaurants, Inc. v. NLRB, 461 U. S. 731, 747 (1983), suggested that "the Board would be warranted in taking . . . into account" for unfair labor practice purposes the fact that an employer had lost its suit, but it did not suggest, as it seems the Board thought here, that losing a lawsuit against a union, in and of itself, virtually alone, shows retaliation. See id., at 743 (suggesting that retaliatory suits might be those that "would not have been commenced but for the plaintiff's desire to retaliate against the defendant for exercising rights protected by the Act").
Insofar as language in the Court's opinion might suggest a more far-reaching rule, see ante, at 524-533, I do not agree. For one thing, I believe that Bill Johnson's decided many of the questions the Court declares unanswered. See ante, at 527-528, 537. It held that while the Board may not halt the prosecution of a lawsuit unless the suit lacks an objectively reasonable basis, it nonetheless "may . . . proceed to adjudicate the § 8(a)(1) and § 8(a)(4) unfair labor practice case" when an employer brings a merely "unmeritorious" retaliatory suit and loses. 461 U. S., at 747. It added that 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' § 7 rights." Ibid. (emphasis added). The courts, the Board, the bar, employers, and unions alike have treated the Court's discussion of completed lawsuits in Bill Johnson's as a holding and have followed it for 20 years. See, e. g., Petrochem Insulation, Inc. v. NLRB, 240 F. 3d 26, 32 (CADC), cert. denied, 534 U. S. 992
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