Washington, DC . . .On April 16, 2002, Maurice Baskin, a partner in Venable's Labor and Employment Law Practice Group, argued the case of BE&K Construction Co. v. NLRB, No. 01-518, before the United States Supreme Court. The case addresses the interplay between the Petition Clause of the First Amendment and the National Labor Relations Act, i.e., whether employers who file good faith lawsuits against unions can be found to have committed an unfair labor practice if they do not "prevail." The U.S. Court of Appeals for the Sixth Circuit upheld a National Labor Relations Board ruling that required BE&K to pay attorneys fees to California construction unions against which BE&K had filed a lawsuit.
The case dates back to 1987, when BE&K sued the Contra Costa Building Trades Council for seeking to delay construction on a $350 million project for USS-POSCO Industries through a campaign that included picketing and seeking an environmental ordinance that would delay the construction process. The U.S. Court of Appeals for the Ninth Circuit, though "troubled" by some of the unions' actions, ultimately found no violation of the antitrust laws. However, the unions' conduct stopped as a result of BE&K's suit, and BE&K completed the project. The NLRB subsequently ruled that BE&K's lawsuit was retaliatory because BE&K lost the underlying case, regardless of the company's good faith belief in the merits of its suit. The NLRB ordered the firm to pay the unions' attorneys fees. BE&K argued that the lawsuit was not retaliatory and had been filed with an objective basis for believing the suit was justified.
Baskin argued to the Supreme Court that the NLRB and appeals court had "made it impossible for employers to bring suit without 100 percent certainty of success in their claims, something that no one can guarantee in advance." Baskin said the NLRB ruling had undercut basic protections provided by the First Amendment and ran counter to established Supreme Court rulings in other areas, such as antitrust law.
The Supreme Court is expected to render a decision in June. The outcome could have a considerable impact on labor-management disputes throughout the country.
Baskin is a partner in Venable's Washington, D.C. office. He focuses on all aspects of labor and employment law representing management and has appeared previously before the Supreme Court, as well as many other courts and the NLRB.
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