BE&K Construction Co. v. National Labor Relations Board

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 *539interfere 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 Relations Board to declare unlawful under §8(a) of the Act, 29 U. S. C. § 158(a), an employer’s filing suit in the…