Supreme Court gives nod to petition in labor case

Tuesday, June 25, 2002

The petition clause of the First Amendment is rarely the subject of a Supreme Court ruling. But it got some favorable mention yesterday in a little-noticed labor law decision that was a significant win for employers over unions.

The Court handed down a decision in BE&K Construction Co. v. National Labor Relations Board, in which it overturned a longstanding National Labor Relations Board policy that discouraged employers from suing unions in the course of labor disputes. Companies that face concerted “corporate campaigns” by unions seeking to damage employers’ businesses will now be more willing to challenge the unions in court, labor law experts said after reading the opinion.

The Court noted that it has long viewed the right to sue as a form of petitioning the government that deserves First Amendment protection. “We have recognized this right to petition as one of the most precious of the liberties safeguarded by the Bill of Rights,” Justice Sandra Day O’Connor wrote for the Court, “and have explained that the right is implied by the very idea of a government, republican in form.”

Alabama company BE&K Construction claimed in court that two unions that represented workers at one of its projects in California had engaged in tactics aimed at delaying the project. Ultimately all the claims made in court by the company were withdrawn or defeated. At the same time, the unions responded by going to the NLRB claiming that the company lawsuit interfered with their right to organize and bargain collectively.

The unions won before the NLRB because of a policy that meant, in effect, that if a lawsuit by an employer against a union failed in court, it must have lacked merit and was aimed at retaliating against the union, thereby violating federal labor laws. The NLRB ordered BE&K to pay the unions’ legal costs and imposed other penalties on the company as well.

The NLRB rule, according to BE&K and other employers, has had a chilling effect on companies’ right to petition because it results in heavy penalties for losing lawsuits.

In analyzing the First Amendment aspects of the dispute, the Supreme Court made an analogy with the freedom of speech, which the Court has said needs “breathing space” in order to be freely exercised. Citing Gertz v. Welch, the Court said, “The First Amendment requires that we protect some falsehood in order to protect speech that matters.” Similarly in the petition context, the Court suggested that even litigation that is ultimately unsuccessful deserves some First Amendment protection.

“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,” O’Connor wrote. “Second, even unsuccessful but reasonably based suits advance some First Amendment interests.”

In its ultimate ruling yesterday, the Court sidestepped the First Amendment issue, preferring instead to reinterpret the NLRB policy in a way that strikes down the part that penalizes reasonably based but unsuccessful lawsuits.

But in the meantime, the Court’s language amounted to a reaffirmation of the usually ignored First Amendment right to petition government.