VOL. 116 | NO. 114 | Thursday, June 13, 2002
Supreme Court hears right to organize case
High court hears employers right-to-sue case
By MARY DANDO
The Daily News
The U.S. Supreme Court is currently hearing a case centering on whether employers can legally file lawsuits against unions.
The case holds great significance for all open-shop employers, and might have a ripple effect in Memphis in relation to building and construction firms.
The case involves a member of the Association of Builders and Contractors, or ABC BE&K Construction Co. of Birmingham, Ala.
ABC is a national trade association representing about 23,000 contractors, subcontractors, material suppliers and related firms and has a chapter in Memphis.
ABCs general counsel, Maurice Baskin of Venable, Baetjer, Howard and Civiletti, argued the National Labor Relations Board had applied an incorrect legal standard against BE&K. The NLRB also had violated BE&Ks constitutionally protected rights, he said.
The case centers on whether employers can legally file lawsuits against unions.
However, because the lawsuit has been drawn out for so long, the issue before the court is now limited to the question of attorneys fees, and would not have much relevance to employer/union relations in the Mid-South, said Charley Maresca, an attorney with ABCs national office in Rosslyn, Va.
"The issue is really a question of attorneys fees and not whether you can or cannot sue a union, although it has a profound effect on whether you will or will not. The other legal issues in the case were long ago decided," he said.
More recently, the NLRB decided it was unfair labor practices for BE&K to pursue what it believed to be a good faith lawsuit and take it to court, he said.
The Bill Johnsons Restaurants case established liability if a retaliatory lawsuit is pursued against unions, Maresca said.
The question before the high court April 16 was "Did the Court of Appeals err in holding that under Bill Johnsons Restaurants Inc. v. NLRB (1983), the NLRB may impose liability on an employer for filing a losing retaliatory lawsuit, even if the employer could show the suit was not objectively baseless under Professional Real Estate Inventors Inc. vs. Columbia Pictures Industries Inc. (1993)."
Last year, the U.S. Court of Appeals for the Sixth Circuit upheld a NLRB ruling requiring 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 actions stopped as a result of BE&Ks suit. The company completed the project.
The NLRB subsequently ruled BE&Ks lawsuit was retaliatory because BE&K lost the underlying case, regardless of the companys good faith belief in the merits of its suit. It ordered the firm to pay the unions attorneys fees.
BE&K argued the lawsuit was not retaliatory but had been filed with an objective basis for believing the suit was justified.
Although the current case is narrowly focused, it has broader significance and implicates the rights of employers to pursue their rights in court, Maresca said.
"The kind of lawsuit being pursued by BE&K should not be considered retaliatory and therefore they should not be liable for attorneys fees," he said.
The court is expected to render a decision in June.
Deborah Godwin, a labor rights attorney with the local firm Allen, Godwin, Morris, Laurenzi and Bloomfield, agreed with Maresca the only issue before the Supreme Court is whether the Sixth Circuit erred in upholding the decision in the Bill Johnsons Restaurants case.
"I dont think the decision is going to have that big an impact either way because of the limits of the issue. But, certainly if the Supreme Court upholds the Sixth Circuit then its going to discourage employers even more so than in the past from trying to stop union organized activity by filing lawsuits," she said.
In relation to the construction of the NBA arena, Godwin said she didnt think this case would have much relevance as to whether the labor used is union or non-union.
Earlier this year, the city council voted for a project labor agreement for the building of the new arena, making it a closed shop, but the county commission subsequently voted against it, she said.
"If there isnt a project labor agreement and you have some union contracts, which you will here because of some of the more skilled crafts unions that have large apprenticeship programs, in all likelihood those jobs are going to end up going to union contractors," she said.
A situation in which union and non-unionized employees are working on the same project has the potential for disputes, Godwin said.
The case before the Supreme Court relates specifically to retaliatory lawsuits, she said.
"Lets say you have an organizing effort. Some of the non-union contractors get on the job and the union will try and organize that contractors employees. In that event, some of these employers could potentially file these retaliatory lawsuits," she said.
If the Supreme Court decides to side with the Sixth Circuits ruling it would discourage employers even more from filing such lawsuits against unions, and might help the effort to organize, Godwin said.