Employers Given Right to Use Lawsuits to Punish Unions

October 13, 2007 by Beeson Tayer & Bodine

In BE&K Construction Company, 351 NLRB No. 29 (September 29, 2007), the National Labor Relations Board majority held that the filing and maintenance of a reasonably based lawsuit never violates the NLRA regardless of the motive for bringing the suit.

For many years the Board has found unlawful employer lawsuits brought against unions or employees where the lawsuit lacks merit and is filed for retaliatory purposes. The Board’s decision in this case modifies that rule so that it no longer applies to any case where the employer can show that it had a “reasonable basis” for filing and pursuing the lawsuit, even if the lawsuit is ultimately determined to be without merit.

As the dissent points out, the majority’s decision means that it is no longer a violation of the NLRA for “an employer, indifferent to outcome, who intends the reasonably based but unsuccessful lawsuit simply to impose litigation costs on the union.” Nor is there now a violation of the NLRA when a lawsuit is brought by an employer “as part of a broader course of conduct aimed at harming the union and interfering with employees’ exercise of their rights under” the Act.

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