BE&K CONSTRUCTION CO. v. NATIONAL LABOR RELATIONS BOARD et al.

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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 ac-
tivities 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 peti-
tioner 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)(1) 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)(1). 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were dismissed or voluntarily withdrawn with prejudice, and that it was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 prac-
tice. 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 unfet-
tered right to seek court resolution of differences, finding that case inap-
plicable because its immunity standard was established in the antitrust
context.

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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 safe-
guarded 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 motiva-
tion 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 unlawful-
ness finding under the stated standard. Exercising its customary re-
fusal to be bound by dicta, the Court turns to the question presented.
Pp. 524–528.
(b) Because of its objective component, Professional Real Estate In-
vestors’ sham litigation standard protects reasonably based petitioning
from antitrust liability; because of its subjective component, it also pro-
tects petitioning that is unmotivated by anticompetitive intent, whether
it is reasonably based or not. The Board argues that the broad immu-
nity 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 pri-
vate action and the Board cannot issue punitive remedies. At most,
those arguments show that the NLRA poses less of a burden on peti-
tioning, 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

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518 BE&K CONSTR. CO. v. NLRB
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 unsuc-
cessful 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 unsuc-
cessful, 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 unsuc-
cessful suits brought with a retaliatory motive, this Court must also
consider the significance of that particular limitation, which is fairly in-
cluded 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 cov-
ers a substantial amount of genuine petitioning. For example, an em-
ployer’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 ille-
gal affects genuine petitioning. The Board also claims to rely on evi-
dence 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 constitu-
tional 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 con-
text, the Court is still faced with the difficult constitutional question
whether a class of petitioning may be declared unlawful when a substan-
tial 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)(1)’s prohibition on interfering, restraining, or
coercing is facially as broad as the prohibition in DeBartolo, and it need

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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 be-
cause 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, Theo-
dore 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 lob-
bying, litigation, and other concerted activities violated fed-
eral labor 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.

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lacked authority to assess liability using this standard, we
reverse and remand.
I
Petitioner, an industrial general contractor, received a con-
tract to modernize a California steel mill near the beginning
of 1987. 246 F. 3d 619, 621 (CA6 2001). According to peti-
tioner, various unions attempted to delay the project because
petitioner’s employees were nonunion. Ibid. That Sep-
tember, 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 dis-
agreement. 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 griev-
ance proceedings against petitioner’s joint venture part-
ner 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 plain-
tiffs amended their complaint to allege that the unions’ activ-
ities violated §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as
amended, 15 U. S. C. §§ 1–2, which prohibit certain agree-

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ments in restraint of trade, monopolization, and attempts to
monopolize. 246 F. 3d, at 622. The District Court dis-
missed 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 evi-
dence 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 in-
cluded 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 dis-
missed 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 ille-
gitimate purpose, but found the error harmless since the
unions had antitrust immunity when lobbying officials or pe-
titioning 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 petition-
ing of governmental bodies . . . without regard to . . . the
merits of said petitions.” Ibid. (internal quotation marks
omitted; emphasis added). The Ninth Circuit allowed that

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petitioner’s claim, if proved, could overcome the unions’ anti-
trust 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 with-
out 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, coerc-
ing, or interfering with employees’ exercise of rights related
to self-organization, collective bargaining, and other con-
certed activities. 29 U. S. C. §§ 157, 158(a)(1).
A three-member panel of the Board addressed cross-
motions for summary judgment and ruled in favor of the gen-
eral counsel. The panel determined that petitioner’s federal
lawsuit had been unmeritorious because all of petitioner’s
claims were dismissed or voluntarily withdrawn with preju-
dice. 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

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the NLRA. The panel first concluded that the unions’ con-
duct was protected activity, id., at 50a–59a, and then decided
that petitioner’s lawsuit had been unlawfully motivated be-
cause 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 59a–
60a. The panel found additional evidence of retaliatory mo-
tive 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 deter-
mining that petitioner’s suit had violated the NLRA because
it was unsuccessful and retaliatory, the panel ordered peti-
tioner 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 or-
dered 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 [petition-
er’s] claims against the unions were unmeritorious or dis-
missed, evidence of a simple retaliatory motive . . . suffice[d]
to adjudge [petitioner] of committing an unfair labor prac-
tice.” 246 F. 3d, at 628. The court rejected petitioner’s ar-
gument 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.”

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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 with-
out 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 ques-
tions. 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 em-
ployer could show the suit was not objectively baseless
under Professional Real Estate Investors, Inc. v. Co-
lumbia Pictures Industries, Inc., 508 U. S. 49 (1993)?”
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

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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 inter-
preting 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 offi-
cials 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 busi-
ness 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 ex-
plicit 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 influenc-
ing 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

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genuine petitioning is immune from antitrust liability, sham
petitioning is not.
In Professional Real Estate Investors, we adopted a two-
part 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 proc-
ess—as opposed to the outcome of that process—as an anti-
competitive weapon.” 508 U. S., at 60–61 (internal quota-
tion marks omitted; emphasis in original). For a suit to
violate the antitrust laws, then, it must be a sham both objec-
tively and subjectively.
This case raises the same underlying issue of when litiga-
tion may be found to violate federal law, but this time with
respect to the NLRA rather than the Sherman Act. Recog-
nizing this underlying connection, we previously decided
whether the Board could enjoin state court lawsuits by anal-
ogizing to the antitrust context. In Bill Johnson’s, a restau-
rant 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 up-
held 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

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and prosecution of a well-founded lawsuit” from being “en-
joined 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 unmeritori-
ous, 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

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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 rea-
sonably based suits that were ultimately unsuccessful. In-
deed, the Board had yet to declare such a suit unlawful: It
had attempted to enjoin an uncompleted suit that it had de-
clared 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 re-
instate 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, ex-
ercising 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 rea-
sonably based petitioning from antitrust liability. Because
of its subjective component, it also protects petitioning that
is unmotivated by anticompetitive intent, whether it is rea-
sonably based or not. The Board admits such broad immu-
nity 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 anti-
trust claims may be privately initiated and may impose high

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discovery costs. Brief for Respondent NLRB 40–41. Ac-
cording 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 adminis-
trative 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 discov-
ery.” 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 peti-
tioning 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 injunc-
tion penalties upon a finding of illegality, but did challenge
the Board’s authority to award attorney’s fees, albeit un-
successfully. 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

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530 BE&K CONSTR. CO. v. NLRB
Opinion of the Court
violates the NLRA even if reasonably based. If it may, the
resulting finding of illegality is a burden by itself. In addi-
tion to a declaration of illegality and whatever legal conse-
quences flow from that, the finding also poses the threat of
reputational harm that is different and additional to any bur-
den 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 peti-
tioning activity it affects. In Bill Johnson’s, we held that
the Board may not enjoin reasonably based state court law-
suits 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 enjoin-
ing ongoing litigation than when penalizing completed litiga-
tion. 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, 553–
554 (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 in-
junctions 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 penal-
ties on various classes of nonbaseless suits.
We said in Bill Johnson’s that the Board could enjoin base-
less 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-

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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 Amend-
ment 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 free-
doms of speech and press [receive] that ‘breathing space’ es-
sential 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” prin-
ciples that we have never held that the entire class of objec-
tively baseless litigation may be enjoined or declared unlaw-
ful 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 re-
quires any “breathing room” protection, for what is at issue
here are suits that are not baseless in the first place. In-
stead, 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-

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532 BE&K CONSTR. CO. v. NLRB
Opinion of the Court
ment’s Petition Clause at the least presents a difficult consti-
tutional question, given the following considerations.
First, even though all the lawsuits in this class are unsuc-
cessful, the class nevertheless includes a substantial propor-
tion of all suits involving genuine grievances because the
genuineness of a grievance does not turn on whether it suc-
ceeds. 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 In-
vestors, 508 U. S., at 58–61 (protecting suits from antitrust
liability whenever they are objectively or subjectively genu-
ine); 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 ad-
vance 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 pro-
mote 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

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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)).
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 in-
terfere 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 sub-
stantial 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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534 BE&K CONSTR. CO. v. NLRB
Opinion of the Court
a belief is both subjectively genuine and objectively reason-
able, then declaring the resulting suit illegal affects genu-
ine 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 (Ste-
vens, 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 re-
course 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 invali-
dated a criminal statute prohibiting false statements about
public officials made with ill will. See Garrison v. Louisi-
ana, 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”). In-
deed, 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, 776–
777 (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 pub-
lic 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

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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 bur-
dens 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 objec-
tively 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 hand-
billing that urged customers not to shop at a mall where the
purpose of the handbilling was to convince the mall’s proprie-
tor to influence a tenant to quit dealing with a nonunion con-
tractor. 485 U. S., at 574. A prior case had held that the
same statutory prohibition on threats, coercion, and re-
straints 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 statu-
tory provisions and their legislative history indicated no
clear intent to reach the handbilling in question, 485 U. S., at
578–588, and so we simply read the statute not to cover it,

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536 BE&K CONSTR. CO. v. NLRB
Opinion of the Court
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 col-
lectively through representatives of their own choosing,
and to engage in other concerted activities for the pur-
pose 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. In-
deed, 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 refus-
ing 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

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537 Cite as: 536 U. S. 516 (2002)
Scalia, J., concurring
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 John-
son’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 au-
thorized under Rule 11 of the Federal Rules of Civil Proce-
dure—or the validity of statutory provisions that merely au-
thorize 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 ques-
tion (which is not presented in this case), I agree with Jus-
tice Breyer that the implication of our decision today is
that, in a future appropriate case, we will construe the Na-
tional 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 Sher-
man Act, all of which suggest to him that a complainant en-
joys 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-

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538 BE&K CONSTR. CO. v. NLRB
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 execu-
tive 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 Ar-
ticle III courts. It 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 circum-
scribed statement that “nothing in our holding today should
be read to question the validity of common litigation sanc-
tions 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 em-
ployer lawsuits that are (1) reasonably based, (2) unsuccess-
ful, and (3) filed with a “retaliatory motive,” i. e., a motive to

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539 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 Rela-
tions Board to declare unlawful under § 8(a) of the Act, 29
U. S. C. § 158(a), an employer’s filing suit in the circum-
stances present here, which is to say, in the kind of case in
which the Board rests its finding of “retaliatory motive” al-
most exclusively upon the simple fact that the employer filed
a reasonably based but unsuccessful lawsuit and the em-
ployer did not like the union. Ante, at 522–524. The Court
expressly leaves open other circumstances in which the evi-
dence of “retaliation” or antiunion motive might be stronger
or different, showing, for example, an employer, indifferent
to outcome, who intends the reasonably based but unsuccess-
ful lawsuit simply to impose litigation costs on the union.
Ante, at 536–537; see also Professional Real Estate Inves-
tors, Inc. v. Columbia Pictures Industries, Inc., 508 U. S. 49,
73–76 (1993) (Stevens, J., joined by O’Connor, J., concur-
ring 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 interfer-
ing 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 lee-
way the Act gives the Board to make findings and to deter-
mine 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 de-
scriptions 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 reason-
ably 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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540 BE&K CONSTR. CO. v. NLRB
Opinion of Breyer, J.
(finding retaliatory motive because the suit was “directed at
protected conduct,” “necessarily tended to discourage simi-
lar protected activity,” was admittedly brought to stop con-
duct BE&K Construction Company thought was unpro-
tected, 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 pro-
tected 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 adjudi-
cate the § 8(a)(1) and § 8(a)(4) unfair labor practice case”
when an employer brings a merely “unmeritorious” retalia-
tory 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 de-
termining 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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(2001); Diamond Walnut Growers, Inc. v. NLRB, 53 F. 3d
1085, 1088 (CA9 1995); NLRB v. International Union of Op-
erating Engineers, Local 520, AFL–CIO, 15 F. 3d 677, 679
(CA7 1994); Braun Elec. Co., 324 N. L. R. B. 1, 2 (1997); Sum-
mitville Tiles, 300 N. L. R. B. 64, 65, and n. 6 (1990); Machin-
ists 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 char-
acterizing Bill Johnson’s is itself dicta.
For another thing, I do not believe that this Court’s anti-
trust precedent determines the outcome here. See Profes-
sional 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 Es-
tate, 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 law-
suits. To apply antitrust law to a defendant’s reasonably
based but unsuccessful anticompetitive lawsuit, for example,
threatens the defendant with treble damages—a consider-
able 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 unsuc-
cessful 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

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542 BE&K CONSTR. CO. v. NLRB
Opinion of Breyer, J.
before a congressionally authorized and politically account-
able 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 his-
tory, are major and determinative. Antitrust law focuses
generally upon anticompetitive conduct that can arise in
myriad circumstances. Anticompetitively motivated law-
suits occupy but one tiny corner of the anticompetitive-
activity 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 regu-
late an employer’s antiunion lawsuits much of its histori-
cal 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 Move-
ment 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 (con-
servatively 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 Injunc-
tion (1930).

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543 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, partic-
ularly antitrust law, in this way. In doing so, Congress
hoped to “substitut[e] the opinion of Congress as to the pro-
priety of the purpose [of union activities] for that of differing
judges” who were “prejudicial to a position of equality be-
tween 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) (enact-
ment 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 in-
formed 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., dissent-
ing 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 occu-
pies a position far closer to the heart of the labor law than
does a defendant’s anticompetitive lawsuit in respect to anti-
trust law. And that fact makes all the difference. Indeed,

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544 BE&K CONSTR. CO. v. NLRB
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.