OCTOBER TERM, 2001
Syllabus
BE&K CONSTRUCTION
CO. v. NATIONAL LABOR
RELATIONS BOARD ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No. 01-518. Argued April 16, 2002-Decided June 24, 2002
Petitioner, who had a contract to modernize a steel mill, and
the mill owner filed a federal lawsuit against respondent unions,
claiming that the unions had engaged in lobbying, litigation, and
other concerted activities in order to delay the project because
petitioner had nonunion employees. Ultimately, petitioner lost on
or withdrew each of its claims. In the meantime, two unions lodged
complaints against petitioner with respondent National Labor
Relations Board (Board). After the federal court proceedings ended,
the Board's general counsel issued an administrative complaint,
alleging that petitioner, by filing and maintaining its lawsuit,
had violated § 8(a)(I) of the National Labor Relations Act (NLRA),
which prohibits employers from restraining, coercing, or
interfering with employees' exercise of rights related to
self-organization, collective bargaining, and other concerted
activities. 29 U. S. C. §§ 157, 158(a)(I). The Board ruled in the
general counsel's favor, finding that the lawsuit was unmeritorious
because its claims were dismissed or voluntarily withdrawn with
prejudice, and that it was filed to retaliate against the unions,
whose conduct was protected under the NLRA. It ordered petitioner
to cease and desist from prosecuting such suits, to post notice to
its employees acknowledging the Board's finding and promising not
to pursue such litigation in the future, and to pay the unions'
legal fees and expenses incurred in the lawsuit. The Sixth Circuit
granted the Board's enforcement petition. Relying on
Bill
Johnson's Restaurants, Inc. v.
NLRB, 461 U. S. 731, 747, it
held that because the Judiciary had already found petitioner's
claims against the unions unmeritorious or dismissed, evidence of a
simple retaliatory motive sufficed to adjudge petitioner of
committing an unfair labor practice. It also rejected petitioner's
argument that under
Professional Real Estate Investors, Inc.
v.
Columbia Pictures Industries, Inc., 508 U. S. 49, only
baseless or sham suits can restrict the otherwise unfettered right
to seek court resolution of differences, finding that case
inapplicable because its immunity standard was established in the
antitrust context.
517
Held: The Board's standard for imposing liability is
invalid. Pp. 524-537.
(a) The right to petition is one of the most precious liberties
safeguarded by the Bill of Rights. This Court has considered that
right when interpreting federal law, recognizing in the antitrust
context, for example, that genuine petitioning is immune from
liability, but sham petitioning is not. The two-part definition
adopted in
Professional Real Estate Investors requires that
sham antitrust litigation must be objectively baseless such that no
reasonable litigant could realistically expect success on the
merits, and that the litigant's subjective motivation must conceal
an attempt to interfere directly with a competitor's business
relationship through the use of the governmental process as an
anticompetitive weapon. 508 U. S., at 60-61. This suit raises the
same underlying issue of when litigation may be found to violate
federal law, but with respect to the NLRA. Recognizing the
connection, the Court has previously decided that the Board can
enjoin lawsuits by analogizing to the antitrust context, holding
that the Board could enjoin ongoing baseless suits brought with a
retaliatory motive. Here, however, the issue is the standard for
declaring completed suits unlawful. In
Bill Johnson's, the
Court addressed that issue in dicta, noting a standard which would
allow the Board to declare that a lost or withdrawn suit violated
the NLRA if it was retaliatory. However, at issue in
Bill
Johnson's were ongoing suits, and the Court did not consider
the precise scope of the term "retaliation." Although its
statements regarding completed litigation were intended to guide
further proceedings, the Court did not expressly order the Board to
adhere to its prior unlawfulness finding under the stated standard.
Exercising its customary refusal to be bound by dicta, the Court
turns to the question presented. Pp. 524-528.
(b) Because of its objective component,
Professional Real
Estate Investors' sham litigation standard protects reasonably
based petitioning from antitrust liability; because of its
subjective component, it also protects petitioning that is
unmotivated by anticompetitive intent, whether it is reasonably
based or not. The Board argues that the broad immunity necessary in
the antitrust context, with,
e. g., its treble
damages remedy and privately initiated lawsuits, is unnecessary in
the labor law context where,
e. g., most adjudication
cannot be launched solely by private action and the Board cannot
issue punitive remedies. At most, those arguments show that the
NLRA poses less of a burden on petitioning, not that its burdens
raise no First Amendment concerns. If the Board may declare that a
reasonably based, but unsuccessful, retaliatory lawsuit violates
the NLRA, the resulting illegality finding is a burden by itself.
The finding also poses a threat of reputational harm that is
518
Syllabus
different and additional to any burden imposed by other
penalties. Having identified this burden, the Court must examine
the petitioning activity it affects. The
Bill Johnson's
Court said that the Board could enjoin baseless retaliatory suits
because they fell outside the First Amendment and thus were
analogous to "false statements." 461 U. S., at 743. At issue here,
however, is a class of reasonably based but unsuccessful lawsuits.
Whether this class falls outside the Petition Clause at least
presents a difficult constitutional question, given the following
considerations. First, even though all lawsuits in this class are
unsuccessful, the class includes suits involving genuine grievances
because genuineness does not turn on whether the grievance
succeeds. Second, even unsuccessful but reasonably based suits
advance some First Amendment interests. Finally, the analogy of
baseless suits to false statements does not directly extend to
suits that are unsuccessful but reasonably based. Because the Board
confines its penalties to unsuccessful suits brought with a
retaliatory motive, this Court must also consider the significance
of that particular limitation, which is fairly included within the
question presented. pp. 528-533.
(c) The Board's definition of a retaliatory suit as one brought
with a motive to interfere with the exercise of protected NLRA § 7
rights covers a substantial amount of genuine petitioning. For
example, an employer's suit to stop what the employer reasonably
believes is illegal union conduct may interfere with or deter some
employees' exercise of NLRA rights. But if the employer's motive
still reflects a subjectively genuine desire to test the conduct's
legality, then declaring the suit illegal affects genuine
petitioning. The Board also claims to rely on evidence of antiunion
animus to infer retaliatory motive. Yet ill will is not uncommon in
litigation, and this Court, in other First Amendment contexts, has
found it problematic to regulate some demonstrably false expression
based on the presence of ill will. Thus, the difficult
constitutional question is not made significantly easier by the
Board's retaliatory motive limitation. The final question is
whether in light of the NLRA's important goals, the Board may
nevertheless burden an unsuccessful but reasonably based suit that
was brought with a retaliatory purpose. While the speech burdens
are different here than in the antitrust context, the Court is
still faced with the difficult constitutional question whether a
class of petitioning may be declared unlawful when a substantial
portion is subjectively and objectively genuine. This Court avoided
a similarly difficult First Amendment issue in
Edward
J. DeBartolo Corp. v.
Florida Gulf Coast
Building &
Constr. Trades Council, 485 U. S. 568,
575, by adopting a limiting construction of the relevant NLRA
provision. Section 158(a)(I)'s prohibition on interfering,
restraining, or coercing is facially as broad as the prohibition in
DeBartolo, and it need
519
not be read so broadly as to reach the entire class of cases the
Board has deemed retaliatory. Because nothing in § 158(a)(1)'s text
indicates that it must be read to reach all reasonably based but
unsuccessful suits filed with a retaliatory purpose, the Court
declines to do so. And because the Board's standard for imposing
NLRA liability allows it to penalize such suits, its standard is
invalid. pp. 533-537.
246 F.3d
619, reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined.
SCALIA, J., filed a concurring opinion, in which THOMAS, J.,
joined,
post, p. 537. BREYER, J., filed an opinion
concurring in part and concurring in the judgment, in which
STEVENS, SOUTER, and GINSBURG, JJ., joined,
post, p.
538.
Maurice Baskin argued the cause and filed briefs for
petitioner.
Deputy Solicitor General Wallace argued the cause for
respondents. With him on the brief for the National Labor Relations
Board were Solicitor General Olson, Austin C. Schlick, Arthur F.
Rosenfeld, John H. Ferguson, Norton
J. Come, and John Emad
Arbab. Sandra Rae Benson, Theodore Franklin, Jonathan P. Hiatt,
James B. Coppess, Peter D. Nussbaum, Meera Trehan, and Laurence
Gold filed a brief for respondent Unions. *
JUSTICE O'CONNOR delivered the opinion of the Court. Petitioner
sued respondent unions, claiming that their lobbying, litigation,
and other concerted activities violated federallabor law and
antitrust law. After petitioner lost on or withdrew each of its
claims, the National Labor Relations Board decided petitioner had
violated federal labor law by prosecuting an unsuccessful suit with
a retaliatory motive. The Court of Appeals affirmed. Because we
find the Board
*Briefs of
amici curiae urging reversal were filed for
the Chamber of Commerce of the United States et al. by
Stanley
R. Strauss, Stephen A. Bokat, Robin S.
Conrad, and
Joshua A. Ulman; and for the Society for Human Resource
Management et al. by
Mark A. Carter and
Daniel V.
Yager.
520
lacked authority to assess liability using this standard, we
reverse and remand.
I
Petitioner, an industrial general contractor, received a
contract to modernize a California steel mill near the beginning of
1987.
246 F.3d
619, 621
(CA6 2001). According to petitioner, various
unions attempted to delay the project because petitioner's
employees were nonunion.
Ibid. That September, petitioner
and the mill operator filed suit against those unions in the
District Court for the Northern District of California. App. to
Pet. for Cert. 33a. The suit was based on the following basic
allegations: First, the unions had lobbied for adoption and
enforcement of an emissions standard, despite having no real
concern the project would harm the environment. 246 F. 3d, at 621.
Second, the unions had handbilled and picketed at petitioner's
site-and also encouraged strikes among the employees of
petitioner's subcontractors-without revealing reasons for their
disagreement.
Ibid. Third, to delay the construction project
and raise costs, the unions had filed an action in state court
alleging violations of California's Health and Safety Code.
Id., at 621-622. Finally, the unions had launched grievance
proceedings against petitioner's joint venture partner based on
inapplicable collective bargaining agreements.
Id., at
622.
Initially, petitioner and the mill operator sought damages under
§ 303 of the Labor-Management Relations Act, 1947 (LMRA), 61 Stat.
158, as amended, 29 U. S. C. § 187, which provides a cause of
action against labor organizations for injuries caused by secondary
boycotts prohibited under § 158(b)(4). 246 F. 3d, at 622. But after
the District Court granted the unions' motion for summary judgment
on the plaintiffs' lobbying- and grievance-related claims, the
plaintiffs amended their complaint to allege that the unions'
activities violated §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as
amended, 15 U. S. C. §§ 1-2, which prohibit certain agree-
521
ments in restraint of trade, monopolization, and attempts to
monopolize. 246 F. 3d, at 622. The District Court dismissed the
amended complaint, however, because it realleged claims that had
already been decided.
Id., at 622-623. The District Court
also dismissed the plaintiffs' claim regarding the unions' state
court lawsuit since the plaintiffs had no evidence that the suit
was not reasonably based and because two unions that the plaintiffs
sued were never parties to that state court action.
Id., at
623.
The plaintiffs filed a second amended complaint. It included
their remaining claims but again realleged claims that had already
been decided.
Ibid.; App. 32-33. The District Court
dismissed the decided claims and imposed sanctions on the
plaintiffs under Federal Rule of Civil Procedure 11. 246 F. 3d, at
623. At that point, the mill operator dismissed its remaining
claims with prejudice.
Ibid. The District Court then granted
summary judgment to the unions on petitioner's antitrust claim once
petitioner was unable to show the unions had formed a combination
with nonlabor entities for an illegitimate purpose.
Ibid.
Petitioner dismissed its remaining claims and appealed.
Id.,
at 623-624.
The United States Court of Appeals for the Ninth Circuit
affirmed the dismissal of petitioner's antitrust claim. It held
that the District Court erred in requiring petitioner to prove that
the unions combined with nonlabor entities for an illegitimate
purpose, but found the error harmless since the unions had
antitrust immunity when lobbying officials or petitioning courts
and agencies, unless the activity was a sham.
USS-POSCO
Industries v.
Contra Costa County Bldg. & Const.
Trades Council, AFL-CIO,
31 F.3d
800, 810
(CA9 1994). Petitioner did not argue that the
unions' litigation activity had been objectively baseless, but
maintained that "the unions [had] engaged in a pattern of
automatic petitioning of governmental bodies ...
without
regard to ... the merits of said petitions."
Ibid.
(internal quotation marks omitted; emphasis added). The Ninth
Circuit allowed that
522
petitioner's claim, if proved, could overcome the unions'
antitrust immunity, but rejected it nonetheless because "fifteen of
the twenty-nine [actions filed by the unions] ... have proven
successful. The fact that more than half of all the actions ...
turn out to have merit cannot be reconciled with the charge that
the unions were filing [them] willy-nilly without regard to
success."
Id., at 811 (footnote omitted).
The Ninth Circuit reversed the District Court's award of Rule 11
sanctions, however, after petitioner explained that it had
realleged decided claims based on Circuit precedent suggesting that
doing so was necessary to preserve them on appeal.
Ibid.
Although the Ninth Circuit decided that rule did not apply to
amended complaints following summary judgment, it held that
petitioner's view was not frivolous and that its counsel could not
be blamed for "err[ing] on the side of caution."
Id., at
812.
In the meantime, two unions had lodged complaints against
petitioner with the National Labor Relations Board (Board), 246 F.
3d, at 624, and after the federal proceedings ended, the Board's
general counsel issued an administrative complaint against
petitioner, alleging that it had violated § 8(a)(1) of the National
Labor Relations Act (NLRA), 49 Stat. 452, as amended, 29 U. S. C. §
158(a)(1), by filing and maintaining the federal lawsuit. App. to
Pet. for Cert. 29a. Section 8(a)(1) prohibits employers from
restraining, coercing, or interfering with employees' exercise of
rights related to self-organization, collective bargaining, and
other concerted activities. 29 U. S. C. §§ 157, 158(a)(1).
A three-member panel of the Board addressed crossmotions for
summary judgment and ruled in favor of the general counsel. The
panel determined that petitioner's federal lawsuit had been
unmeritorious because all of petitioner's claims were dismissed or
voluntarily withdrawn with prejudice. App. to Pet. for Cert. 30a,
47a, 49a. The panel then examined whether petitioner's suit had
been filed to retaliate against the unions for engaging in
activities protected under
523
the NLRA. The panel first concluded that the unions' conduct was
protected activity,
id., at 50a-59a, and then decided that
petitioner's lawsuit had been unlawfully motivated because it was
"directed at protected conduct" and "necessarily tended to
discourage similar protected activity," and because petitioner
admitted it had filed suit" 'to stop certain [u]nion conduct which
it believed to be unprotected,'"
id., at 59a60a. The panel
found additional evidence of retaliatory motive because petitioner
had sued some unions that were not parties to the state court
lawsuit.
Id., at 60a. The panel also found evidence of
retaliatory motive because petitioner's LMRA claims had an "utter
absence of merit" and had been dismissed on summary judgment.
Id., at 61a. After determining that petitioner's suit had
violated the NLRA because it was unsuccessful and retaliatory, the
panel ordered petitioner to cease and desist from prosecuting such
suits and to post notice to its employees admitting it had been
found to have violated the NLRA and promising not to pursue such
litigation in the future.
Id., at 65a-67a. The panel also
ordered petitioner to pay the unions' legal fees and expenses
incurred in defense of the federal suit.
Id., at 65a.
Petitioner sought review of the Board's decision in the United
States Court of Appeals for the Sixth Circuit, and the Board
cross-petitioned for enforcement of its order. The Sixth Circuit
granted the Board's petition. Relying on
Bill Johnson's
Restaurants, Inc. v.
NLRB, 461 U. S. 731, 747
(1983), the Sixth Circuit held that "because the judicial branch of
government had already determined that [petitioner's] claims
against the unions were unmeritorious or dismissed, evidence of a
simple retaliatory motive ... suffice[d] to adjudge [petitioner] of
committing an unfair labor practice." 246 F. 3d, at 628. The court
rejected petitioner's argument that under
Professional Real
Estate Investors, Inc. v.
Columbia Pictures Industries,
Inc., 508 U. S.
49 (1993), "only baseless or 'sham' suits serve to restrict the
otherwise unfettered right to seek court resolution of
differences."
524
246 F. 3d, at 629. Instead, the court decided
Professional
Real Estate Investors was inapplicable because its immunity
standard had been established in the antitrust context without
reference to any standard for determining if completed litigation
violates the NLRA. 246 F. 3d, at 629. The Sixth Circuit found that
substantial evidence supported the Board's inference of retaliatory
motive because petitioner had filed an unmeritorious suit,
realleged previously decided claims, sought treble damages on its
antitrust claim, and sought damages from unions not parties to the
state court suit.
Id., at 629-631. The court also upheld the
Board's award of attorney's fees.
Id., at 632.
Petitioner sought review of the Sixth Circuit's judgment by a
petition for certiorari that raised four separate questions. We
granted certiorari on the following rephrased question:
"Did the Court of Appeals err in holding that under Bill
Johnson's Restaurants, Inc. v. NLRB, 461 U. S. 731 (1983), the
NLRB may impose liability on an employer for filing a losing
retaliatory lawsuit, even if the employer could show the suit was
not objectively baseless under Professional Real Estate
Investors, Inc. v. Columbia Pictures Industries, Inc.,
508 U. S. 49
(1993)7" 534 U. S. 1074 (2002).
We now reverse the judgment of the Sixth Circuit and remand.
II
The First Amendment provides, in relevant part, that "Congress
shall make no law ... abridging ... the right of the people ... to
petition the Government for a redress of grievances." We have
recognized this right to petition as one of "the most precious of
the liberties safeguarded by the Bill of Rights,"
Mine
Workers v.
Illinois Bar Assn., 389 U. S. 217, 222
(1967), and have explained that the right is implied
525
by "[t]he very idea of a government, republican in form,"
United States v.
Cruikshank, 92 U. S. 542, 552
(1876).
We have also considered the right to petition when interpreting
federal law. In the antitrust context, for example, we held that
"the Sherman Act does not prohibit ... persons from associating ...
in an attempt to persuade the legislature or the executive to take
particular action with respect to a law that would produce a
restraint or a monopoly."
Eastern Railroad Presidents
Conference v.
Noerr Motor Freight, Inc., 365 U. S. 127, 136
(1961). We based our interpretation in part on the principle that
we would not "lightly impute to Congress an intent to invade ...
freedoms" protected by the Bill of Rights, such as the right to
petition.
Id., at 138. We later made clear that this
antitrust immunity "shields from the Sherman Act a concerted effort
to influence public officials regardless of intent or purpose."
Mine Workers v.
Pennington, 381 U. S. 657, 670
(1965).
These antitrust immunity principles were then extended to
situations where groups "use ...
courts to advocate their
causes and points of view respecting resolution of their business
and economic interests
vis-a-vis their competitors."
California Motor Transport Co. v.
Trucking Unlimited,
404 U. S. 508, 511 (1972) (emphasis added). We thus made
explicit that "the right to petition extends to all departments of
the Government," and that "[t]he right of access to the courts is
... but one aspect of the right of petition."
Id., at
510.
Even then, however, we emphasized that such immunity did not
extend to "illegal and reprehensible practice[s] which may corrupt
the ... judicial proces[s],"
id., at 513, hearkening back to
an earlier statement that antitrust immunity would not extend to
lobbying "ostensibly directed toward influencing governmental
action [that] is a mere sham to cover what is actually nothing more
than an attempt to interfere directly with the business
relationships of a competitor."
Noerr, supra, at 144. This
line of cases thus establishes that while
526
genuine petitioning is immune from antitrust liability, sham
petitioning is not.
In
Professional Real Estate Investors, we adopted a
twopart definition of sham antitrust litigation: first, it "must be
objectively baseless in the sense that no reasonable litigant could
realistically expect success on the merits"; second, the litigant's
subjective motivation must "concea[l] an attempt to interfere
directly with the business relationships of a competitor ...
through the use [of] the governmental
process-as opposed to
the
outcome of that process-as an anticompetitive weapon."
508 U. S., at 60-61 (internal quotation marks omitted; emphasis in
original). For a suit to violate the antitrust laws, then, it must
be a sham
both objectively and subjectively.
This case raises the same underlying issue of when litigation
may be found to violate federal law, but this time with respect to
the NLRA rather than the Sherman Act. Recognizing this underlying
connection, we previously decided whether the Board could enjoin
state court lawsuits by analogizing to the antitrust context. In
Bill Johnson's, a restaurant owner had filed a state court
lawsuit against individuals who picketed its restaurant after a
waitress was fired. 461 U. S., at 733-734. The owner alleged that
the picketing was harassing and dangerous and that a leaflet
distributed by the picketers was libelous.
Id., at 734. The
waitress filed a charge with the Board claiming the suit had been
filed in retaliation for participation in protected activities.
Id., at 735. The Administrative Law Judge (ALJ) decided that
the owner's suit lacked a reasonable basis and was intended to
penalize protected activity based on his assessment of the evidence
and its credibility.
Id., at 736, 744. The Board upheld this
determination and ordered the owner to withdraw its suit and pay
the defendants' legal expenses.
Id., at 737. The Court of
Appeals enforced the order.
Ibid.
We vacated the judgment, however, holding that First Amendment
and federalism concerns prevented "[t]he filing
527
and prosecution of a well-founded lawsuit" from being "enjoined
as an unfair labor practice, even if it would not have been
commenced but for the plaintiff's desire to retaliate against the
defendant for exercising rights protected by the [NLRA]."
Id., at 737, 743. We also held that the Board may not decide
that a suit is baseless by making credibility determinations, as
the ALJ had done, when genuine issues of material fact or state law
exist.
Id., at 745, 746-747. In recognition of our sham
exception to antitrust immunity, however, we reasoned that "[w]e
should follow a similar course under the NLRA" and held that the
Board could enjoin baseless suits brought with a retaliatory
motive,
id., at 744 (citing
California Motor Transport,
supra), and then remanded for further proceedings, 461 U. S.,
at 749.
At issue today is not the standard for enjoining ongoing suits
but the standard for declaring completed suits unlawful. In
Bill
Johnson's, we remarked in dicta about that situation:
"If judgment goes against the employer in the state court, ...
or if his suit is withdrawn or is otherwise shown to be without
merit, the employer has had its day in court, the interest of the
State in providing a forum for its citizens has been vindicated,
and the Board may then proceed to adjudicate the ... unfair labor
practice case. 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' [NLRA] § 7 rights. If a violation is
found, the Board may order the employer to reimburse the employees
whom he had wrongfully sued for their attorney's fees and other
expenses. It may also order any other proper relief that would
effectuate the policies of the [NLRA]." Id., at 747.
Under this standard, the Board could declare that a lost or
withdrawn suit violated the NLRA if it was retaliatory. In
528
Bill Johnson's, however, the issue before the Court was
whether the Board could enjoin an ongoing state lawsuit without
finding that the suit lacked a reasonable basis in law or fact.
Id., at 733. To resolve that issue, we had no actual need to
decide whether the Board could declare unlawful reasonably based
suits that were ultimately unsuccessful. Indeed, the Board had yet
to declare such a suit unlawful: It had attempted to enjoin an
uncompleted suit that it had declared
baseless. Id., at
736-737. Nor did we have occasion to consider the precise scope of
the term "retaliation." See
infra, at 533, 537.
Moreover, although our statements regarding completed litigation
were intended to guide further proceedings, we did not expressly
order the Board to adhere to its prior finding of unlawfulness
under the standard we stated. See 461 U. S., at 749-750, n. 15
("[O]n remand the Board
may reinstate its finding that
petitioner acted unlawfully ...
if the Board adheres to its
previous finding that the suit was filed for a retaliatory purpose"
(emphasis added)). Thus, exercising our "customary refusal to be
bound by dicta,"
U. S.
Bancorp Mortgage Co. v.
Bonner Mall Partnership, 513 U. S. 18, 24 (1994), we turn to
the question presented.
III
Because of its objective component, the sham litigation standard
in
Professional Real Estate Investors protects reasonably
based petitioning from antitrust liability. Because of its
subjective component, it also protects petitioning that is
unmotivated by anticompetitive intent, whether it is reasonably
based or not. The Board admits such broad immunity is justified in
the antitrust context because it properly "balances the risk of
anticompetitive lawsuits against the chilling effect" on First
Amendment petitioning that might be caused by "the treble-damages
remedy and other distinct features of antitrust litigation," such
as the fact that antitrust claims may be privately initiated and
may impose high
529
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
530
violates the NLRA even if reasonably based. If it may, the
resulting finding of illegality is a burden by itself. In addition
to a declaration of illegality and whatever legal consequences flow
from that, the finding also poses the threat of reputational harm
that is different and additional to any burden posed by other
penalties, such as a fee award. Because we can resolve this case by
looking only at the finding of illegality, we need not decide
whether the Board otherwise has authority to award attorney's fees
when a suit is found to violate the NLRA.
Having identified this burden, we must examine the petitioning
activity it affects. In
Bill Johnson's, we held that the
Board may not enjoin reasonably based state court lawsuits in part
because of First Amendment concerns. 461 U. S., at 742-743. We
implied those concerns are no longer present when a suit ends
because "the employer has had its day in court."
Id., at
747. By analogy to other areas of First Amendment law, one might
assume that any concerns related to the right to petition must be
greater when enjoining ongoing litigation than when penalizing
completed litigation. After all, the First Amendment historically
provides greater protection from prior restraints than
after-the-fact penalties, see
Alexander v.
United
States, 509 U. S.
544, 553554 (1993), and enjoining a lawsuit could be
characterized as a prior restraint, whereas declaring a completed
lawsuit unlawful could be characterized as an after-the-fact
penalty on petitioning. But this analogy at most suggests that
injunctions may raise greater First Amendment concerns, not that
after-the-fact penalties raise no concerns. Likewise, the fact that
Bill Johnson's allowed certain
baseless suits to be
enjoined tells little about the propriety of imposing penalties on
various classes of
nonbaseless suits.
We said in
Bill Johnson's that the Board could enjoin
baseless retaliatory suits because they fell outside of the First
Amendment and thus were analogous to "false statements." 461 U. S.,
at 743. We concluded that "[j]ust as false state-
531
ments are not immunized by the First Amendment right to freedom
of speech, baseless litigation is not immunized by the First
Amendment right to petition."
Ibid. (citations omitted).
While this analogy is helpful, it does not suggest that the class
of baseless litigation is
completely unprotected:
At most, it indicates such litigation should be unprotected
"just as" false statements are. And while false statements may be
unprotected for their own sake, "[t]he First Amendment requires
that we protect some falsehood in order to protect
speech that
matters." Gertz v.
Robert Welch, Inc., 418 U. S. 323, 341 (1974)
(emphasis added);
id., at 342 (noting the need to protect
some falsehoods to ensure that "the freedoms of speech and press
[receive] that 'breathing space' essential to their fruitful
exercise" (quoting
NAACP v.
Button, 371 U. S. 415, 433
(1963))). An example of such "breathing space" protection is the
requirement that a public official seeking compensatory damages for
defamation prove by clear and convincing evidence that false
statements were made with knowledge or reckless disregard of their
falsity. See
New York Times Co. v.
Sullivan, 376 U. S. 254, 279-280,
285 (1964).
It is at least consistent with these "breathing space"
principles that we have never held that the entire class of
objectively baseless litigation may be enjoined or declared
unlawful even though such suits may advance no First Amendment
interests of their own. Instead, in cases like
Bill
Johnson's and
Professional Real Estate Investors, our
holdings limited regulation to suits that were both objectively
baseless
and subjectively motivated by an unlawful purpose.
But we need not resolve whether objectively baseless litigation
requires any "breathing room" protection, for what is at issue here
are suits that are not baseless in the first place. Instead, as an
initial matter, we are dealing with the class of reasonably based
but unsuccessful lawsuits. But whether this class of suits falls
outside the scope of the First Amend-
532
ment's Petition Clause at the least presents a difficult
constitutional question, given the following considerations.
First, even though all the lawsuits in this class are
unsuccessful, the class nevertheless includes a substantial
proportion of all suits involving genuine grievances because the
genuineness of a grievance does not turn on whether it succeeds.
Indeed, this is reflected by our prior cases which have protected
petitioning whenever it is genuine, not simply when it triumphs.
See,
e. g., Professional Real Estate Investors, 508 U. S.,
at 58-61 (protecting suits from antitrust liability whenever they
are objectively or subjectively genuine);
Pennington, 381 U.
S., at 670 (shielding from antitrust immunity any "concerted effort
to influence public officials"). Nor does the text of the First
Amendment speak in terms of successful petitioning-it speaks simply
of "the right of the people ... to petition the Government for a
redress of grievances. "
Second, even unsuccessful but reasonably based suits advance
some First Amendment interests. Like successful suits, unsuccessful
suits allow the" 'public airing of disputed facts,'"
Bill
Johnson's, supra, at 743 (quoting Balmer, Sham Litigation and
the Antitrust Law, 29 Buffalo L. Rev. 39, 60 (1980)), and raise
matters of public concern. They also promote the evolution of the
law by supporting the development of legal theories that may not
gain acceptance the first time around. Moreover, the ability to
lawfully prosecute even unsuccessful suits adds legitimacy to the
court system as a designated alternative to force. See Andrews, A
Right of Access to Court Under the Petition Clause of the First
Amendment: Defining the Right, 60 Ohio St. L. J. 557, 656 (1999)
(noting the potential for avoiding violence by the filing of
unsuccessful claims).
Finally, while baseless suits can be seen as analogous to false
statements, that analogy does not directly extend to suits that are
unsuccessful but reasonably based. For even if a suit could be seen
as a kind of provable statement, the
533
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)).
IV
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
534
a belief is both subjectively genuine and objectively
reasonable, then declaring the resulting suit illegal affects
genuine petitioning.
The Board also claims to rely on evidence of antiunion animus to
infer retaliatory motive. Brief for Respondent NLRB 47. Yet ill
will is not uncommon in litigation. Cf.
Professional Real Estate
Investors, 508 U. S., at 69 (STEVENS, J., concurring in
judgment) ("We may presume that every litigant intends harm to his
adversary"). Disputes between adverse parties may generate such ill
will that recourse to the courts becomes the only legal and
practical means to resolve the situation. But that does not mean
such disputes are not genuine. As long as a plaintiff's
purpose is to stop conduct he reasonably believes is
illegal, petitioning is genuine both objectively and subjectively.
See
id., at 60-61.
Even in other First Amendment contexts, we have found it
problematic to regulate some
demonstrably false expression
based on the presence of ill will. For example, we invalidated a
criminal statute prohibiting false statements about public
officials made with ill will. See
Garrison v.
Louisiana, 379
U. S. 64, 73-74 (1964) ("Debate on public issues will not be
uninhibited if the speaker must run the risk that it will be proved
in court that he spoke out of hatred"). Indeed, the requirement
that private defamation plaintiffs prove the falsity of speech on
matters of public concern may indirectly shield much speech
concealing ill motives. See
Philadelphia Newspapers, Inc. v.
Hepps, 475 U.
S. 767, 776777 (1986); see also
Hustler Magazine, Inc.
v.
Falwell, 485 U. S. 46, 53 (1988) (prohibiting use of ill
motive to create liability for speech in the realm of public debate
about public figures).
For these reasons, the difficult constitutional question we
noted earlier,
supra, at 531-533, is not made significantly
easier by the Board's retaliatory motive limitation since that
535
limitation fails to exclude a substantial amount of petitioning
that is objectively and subjectively genuine.
The final question is whether, in light of the important goals
of the NLRA, the Board may nevertheless burden an unsuccessful but
reasonably based suit when it concludes the suit was brought with a
retaliatory purpose. As explained above,
supra, at 525-526,
we answered a similar question in the negative in the antitrust
context. And while the burdens on speech at issue in this case are
different from those at issue in
Professional Real Estate
Investors, we are still faced with a difficult constitutional
question: namely, whether a class of petitioning may be declared
unlawful when a substantial portion of it is subjectively
and objectively genuine.
In a prior labor law case, we avoided a similarly difficult
First Amendment issue by adopting a limiting construction of the
relevant NLRA provision. See
Edward J. DeBartolo
Corp. v.
Florida Gulf Coast Building &
Constr.
Trades Council, 485 U. S. 568, 575
(1988). At issue there was the scope of § 8(b)(4) of the NLRA, 29
U. S. C. § 158(b)(4), which limits unions from "threaten[ing],
coerc[ing], or restrain[ing] any person engaged in commerce or in
an industry affecting commerce" with respect to certain prohibited
purposes. § 158(b)(4)(ii). The Board read this provision to cover
handbilling that urged customers not to shop at a mall where the
purpose of the hand billing was to convince the mall's proprietor
to influence a tenant to quit dealing with a nonunion contractor.
485 U. S., at 574. A prior case had held that the same statutory
prohibition on threats, coercion, and restraints was "'nonspecific,
indeed vague,' and [thus] should be interpreted with 'caution' and
not given a 'broad sweep.'"
Id., at 578 (quoting
NLRB
v.
Drivers, 362 U. S. 274, 290
(1960)). Likewise, in
DeBartolo, we found that the statutory
provisions and their legislative history indicated no clear intent
to reach the hand billing in question, 485 U. S., at 578-588, and
so we simply read the statute not to cover it,
536
thereby avoiding the First Amendment question altogether,
id., at 588.
Here, the relevant NLRA provision is § 8(a)(1), 29 U. S. c. §
158(a)(1), which prohibits employers from "interfer[ing] with,
restrain[ing], or coerc[ing] employees in the exercise of the
rights guaranteed in [29 U. S. C. § ]157." Section 157 provides, in
relevant part:
"Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection .... "
Section 158(a)(1)'s prohibition on interfering, restraining, or
coercing in connection with the above rights is facially as broad
as the prohibition at issue in
DeBartolo. And while it might
be read to reach the entire class of suits the Board has deemed
retaliatory, it need not be read so broadly. Indeed, even
considered in context, there is no suggestion that these provisions
were part of any effort to cover that class of suits. See §§
158(a)(2)-(5) (generally prohibiting employers from interfering
with the formation and administration of a union, from
discriminating in employment practices based on union membership,
from discharging employees who provide testimony or file charges
under the NLRA, and from refusing to bargain collectively with
employee representatives).
Because there is nothing in the statutory text indicating that §
158(a)(1) must be read to reach all reasonably based but
unsuccessful suits filed with a retaliatory purpose, we decline to
do so. Because the Board's standard for imposing liability under
the NLRA allows it to penalize such suits, its standard is thus
invalid. We do not decide whether the Board may declare unlawful
any unsuccessful but reasonably based suits that would not have
been filed but for a motive to impose the costs of the litigation
process, regardless of the
537
outcome, in retaliation for NLRA protected activity, since the
Board's standard does not confine itself to such suits. Likewise,
we need not decide what our dicta in
Bill Johnson's may have
meant by "retaliation." 461 U. S., at 747; see
supra, at
527-528. Finally, nothing in our holding today should be read to
question the validity of common litigation sanctions imposed by
courts themselves-such as those authorized under Rule 11 of the
Federal Rules of Civil Procedure-or the validity of statutory
provisions that merely authorize the imposition of attorney's fees
on a losing plaintiff.
The judgment of the Court of Appeals for the Sixth Circuit is
therefore reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring.
Although the Court scrupulously avoids deciding the question
(which is not presented in this case), I agree with JusTICE BREYER
that the implication of our decision today is that, in a future
appropriate case, we will construe the N ational Labor Relations
Act (NLRA) in the same way we have already construed the Sherman
Act: to prohibit only lawsuits that are
both objectively
baseless
and subjectively intended to abuse process. See
Professional Real Estate Investors, Inc. v.
Columbia
Pictures Industries, Inc., 508 U. S. 49, 60-61
(1993).
Choosing to make explicit what is implied, and then disagreeing
with that result, JUSTICE BREYER describes a number of differences
between the NLRA and the Sherman Act, all of which suggest to him
that a complainant enjoys greater First Amendment rights to file a
lawsuit in the face of the latter than the former.
Post, at
541-544 (opinion concurring in part and concurring in judgment).
Missing from his list, however, is the most important difference of
all, which suggests-indeed, demands-precisely the oppo-
538
Opinion of BREYER, J.
site conclusion. Under the Sherman Act, the entity making the
factual determination whether the objectively reasonable suit was
brought with an unlawful motive would have been an Article III
court; even with that protection, we thought the right of access to
Article III courts too much imperiled. Under the NLRA, however, the
entity making the factual finding that determines whether a
litigant will be punished for filing an objectively reasonable
lawsuit will be an executive agency, the National Labor Relations
Board. That this difference undermines JUSTICE BREYER'S analysis,
there can be no doubt. At the very least, it poses a difficult
question under the First Amendment: whether an
executive
agency can be given the power to punish a reasonably based suit
filed in an Article III court whenever
it
concludes-insulated from
de novo judicial review by the
substantial-evidence standard of 29 U. S. C. §§ 160(e), (f)-that
the complainant had one motive rather than another. This makes
resort to the courts a risky venture, dependent upon the findings
of a body that does not have the independence prescribed for
Article III courts. I t would be extraordinary to interpret a
statute which is silent on this subject to intrude upon the courts'
ability to decide
for themselves which postulants for their
assistance should be punished.
For this reason, I am able, unlike JUSTICE BREYER, to join the
Court's opinion in full-including its carefully circumscribed
statement that "nothing in our holding today should be read to
question the validity of common litigation sanctions
imposed by
courts themselves," ante, at 537 (emphasis added).
JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE SOUTER, and
JUSTICE GINSBURG join, concurring in part and concurring in the
judgment.
As I understand the Court's opinion, it focuses on employer
lawsuits that are (1) reasonably based, (2) unsuccessful, and (3)
filed with a "retaliatory motive," i.
e., a motive to
539
interfere with protected union conduct. See
ante, at
532533. 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
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
(CAD C), cert. denied, 534 U. S. 992
541
(2001); Diamond Walnut Growers, Inc. v.
NLRB, 53 F.3d
1085, 1088
(CA9 1995);
NLRB v.
International
Union of Operating Engineers, Local 520, AFL-CIO, 15 F.3d
677, 679
(CA71994); Braun Elec. Co., 324 N. L. R.
B. 1,2 (1997);
Summitville Tiles, 300 N. L. R. B. 64, 65,
and n. 6 (1990);
Machinists Lodge 91
(United
Technologies), 298 N. L. R. B. 325, 326 (1990), enf'd,
934 F.2d
1288 (CA2 1991). I can find no good reason to
characterize the statements in
Bill Johnson's as
dicta-though I recognize that the Court's language so
characterizing
Bill Johnson's is itself dicta.
For another thing, I do not believe that this Court's antitrust
precedent determines the outcome here. See
Professional Real
Estate, supra; Eastern Railroad Presidents Conference v.
Noerr Motor Freight, Inc., 365 U. S. 127 (1961).
That precedent finds all but sham lawsuits exempt from the reach of
the
antitrust laws. Professional Real Estate, supra, at
60-61;
Noerr, supra, at 144. It does not hold employers
enjoy a similar exemption from the reach of the
labor laws.
And it should not do so, for antitrust law and labor law differ
significantly in respect to their consequences, administration,
scope, history, and purposes.
Certain differences, while minor, are worth noting given the
Court's concern to avoid discouraging legitimate lawsuits. To apply
antitrust law to a defendant's reasonably based but unsuccessful
anticompetitive lawsuit, for example, threatens the defendant with
treble damages-a considerable deterrent. See
ante, at 528.
To apply labor law to an employer's reasonably based but
unsuccessful retaliatory lawsuit threatens the employer only with a
shift in liability for attorney's fees. See
ante, at 529.
Similarly, to apply antitrust law to a defendant's reasonably based
but unsuccessful anticompetitive lawsuit threatens the defendant
with high court-defense costs against any and all who initiate
suit. To apply labor law to an employer's reasonably based but
unsuccessful retaliatory lawsuit threatens the employer only with
the typically far lower costs of defending the charge
542
Opinion of BREYER, J.
before a congressionally authorized and politically accountable
administrative agency that acts as a screen for meritless
complaints. See
ibid.; see also 64 NLRB Ann. Rep. 5 (1999)
(showing that of 27,450 unfair labor practice cases closed in 1999,
only 1.4% were resolved by an order of the Board in a contested
case).
Other differences, those related to scope, purpose, and history,
are major and determinative. Antitrust law focuses generally upon
anticompetitive conduct that can arise in myriad circumstances.
Anticompetitively motivated lawsuits occupy but one tiny corner of
the anticompetitiveactivity universe. To circumscribe the
boundaries of that corner does not significantly limit the scope of
antitrust law or undermine any basic related purpose.
By way of contrast, the NLRA finds in the need to regulate an
employer's antiunion lawsuits much of its historical reason for
being. Throughout the 19th century, courts had upheld prosecutions
of unions as criminal conspiracies. C. Tomlins, The State and the
Unions 36-45 (1985). They had struck down protective labor
legislation-for, say, shorter working hours or better working
conditions. W. Forbath, Law and the Shaping of the American Labor
Movement 38, and n. 7 (1991) (by 1900, courts had struck down
roughly 60 labor laws, and by 1920, roughly 300). They had granted
injunctions against employees and labor unions that weakened the
unions' ability to organize.
Id., at 61-62 (conservatively
estimating at least 4,300 injunctions issued in labor conflicts
between 1880 and 1930). And in the process they had reinterpreted
federal statutes that Congress had not intended for use against the
organizing activities of labor unions. See,
e. g.,
In re Debs, 158 U. S. 564 (1895)
(applying Interstate Commerce Act of 1887 to union activities);
Loewe v.
Lawlor, 208 U. S. 274 (1908)
(applying Sherman Act); see generally F. Frankfurter & N.
Greene, The Labor Injunction (1930).
543
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
NorrisLaGuardia 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,
544
Opinion of BREYER, J.
given these differences of history and purpose, I do not see how
the Court could treat labor law, which sought to give the Board
power to regulate an employer's antiunion conduct, including
retaliatory lawsuits, as if it were antitrust law, where no
comparable purpose is evident. Perhaps that is why this Court
previously made clear that these two areas of law significantly
differ. Compare
Professional Real Estate, 508 U. S., at
55-60, with
Bill Johnson's, 461 U. S., at 747.
I do not know why the Court reopens these matters in its opinion
today. See
ante, at 528, 536-537. But I note that it has
done so only to leave them open. It does not, in the end, decide
them. On that understanding, but only to the extent that I describe
at the outset, see
supra, at 538-540, I join the Court's
opinion.
Comments
Be the first to comment
Leave a Comment