In what may be the final chapter in a construction case that started 20 years ago, the National Labor Relations Board has ruled in favor of contractor BE&K Construction Co. and against organized labor. In a 3–2 decision issued Sept. 29, NLRB ruled that filing a “reasonably based” lawsuit does not violate the National Labor Relations Act, even if the suit could be viewed as retaliatory. One of the legal battle’s many stops was at the U.S. Supreme Court, which issued a 2002 ruling that laid the groundwork for NLRB’s decision.

Writing for the majority, NLRB’s Republican members, Chairman Robert J. Battista, Peter C. Schaumber and Peter N. Kirsanow, said that “the filing and maintenance of a reasonably based lawsuit does not violate the [NLRA], regardless of whether the lawsuit is ongoing or is completed and regardless of the motive for initiating the lawsuit.”

Battista Writing for the majority, NLRB’s chairman and its two other Republican members said that “a reasonably based lawsuit” doesn’t violate the National Labor Relations Act, “regardless of whether the lawsuit is ongoing or is completed and regardless of the motive for initiating the lawsuit.”
BATTISTA

NLRB’s two Democratic members, Wilma B. Liebman and Dennis P. Walsh, dissented, saying, “If it stands, the board’s decision... will give employers greater freedom to bring lawsuits that attack the exercise of labor–law rights, that have no legal merit and that are motivated entirely by a desire to intimidate and to punish employees and their unions.”

Associated Builders and Contractors, of which BE&K is a member, hailed the decision as “a landmark ruling” that will let companies defend themselves better against unions’ “corporate campaigns.” Robert Hirsch, ABC’s director of legal and regulatory affairs, says the ruling is “more policy–oriented” than specific to the facts of the case, “which is why we think it’s such a significant and beneficial decision.”

Construction unions are disappointed, says Tom Owens Jr., a spokesman for the AFL–CIO’s Building and Construction Trades Dept. “Discounting and reading out the notion of employer retaliation against employees who are exercising their rights to engage in union activities is just plain wrong,” he says.

The case began in September 1987 when BE&K sued several construction unions in federal district court, claiming they were trying to delay its $350–million project to modernize a California steel mill. The court ruled for the unions and was upheld by an appeals court.

As the cases moved through federal courts, two unions filed NLRB complaints against BE&K. The board’s general counsel issued a complaint against the company, alleging that it violated the labor–relations act by filing its federal suit. A three–member NLRB panel ruled in favor of the general counsel.

BE&K appealed the NLRB decision but lost in appellate court. The company took the case to the Supreme Court, which in 2002 reversed the appellate ruling and remanded it to NLRB.