BE&K Constr. Co. v. NLRB, 536 U.S. 516, 28 (2002)

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

Opinion of Breyer, J.

Congress initially passed the Clayton Act, 15 U. S. C. §§ 12-27, 44, to prevent employers from using the law, particularly antitrust law, in this way. In doing so, Congress hoped to "substitut[e] the opinion of Congress as to the propriety of the purpose [of union activities] for that of differing judges" who were "prejudicial to a position of equality between workingman and employer." Duplex Printing Press Co. v. Deering, 254 U. S. 443, 485-486 (1921) (Brandeis, J., joined by Holmes and Clarke, JJ., dissenting). When the Clayton Act proved insufficient, Congress passed the Norris-LaGuardia Act, 29 U. S. C. § 101, which made the labor injunction unlawful. See United States v. Hutcheson, 312 U. S. 219, 235-236 (1941) ("The underlying aim of the Norris-LaGuardia Act was to restore the broad purpose which Congress thought it had formulated in the Clayton Act but which was frustrated, so Congress believed, by unduly restrictive judicial construction"); see also Marine Cooks v. Panama S. S. Co., 362 U. S. 365, 369-370, n. 7 (1960) (enactment of Norris-LaGuardia "was prompted by a desire . . . to withdraw federal courts from a type of controversy for which many believed they were ill-suited"). Similar objectives informed Congress' later enactment of the NLRA, which took from the courts much of the power to regulate "the relations between employers of labor and workingmen" by granting authority to an administrative agency. Duplex Printing, supra, at 486 (Brandeis, J., dissenting); see Mine Workers v. Pennington, 381 U. S. 657, 703 (1965) (Goldberg, J., dissenting from opinion but concurring in reversal) (describing how Justice Brandeis' dissent in Duplex Printing "carried the day in the courts of history" when Congress passed Norris-LaGuardia and the NLRA).

The upshot is that an employer's antiunion lawsuit occupies a position far closer to the heart of the labor law than does a defendant's anticompetitive lawsuit in respect to antitrust law. And that fact makes all the difference. Indeed,

543

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