Retaliatory Lawsuits, the NLRA, and the First Amendment: A Proposed Accommodation of Competing Interests

Employer lawsuits motivated by a desire to retaliate against employees exercising their self-organization rights under the National Labor Relations Act\u27 (NLRA or the Act) raise difficult problems. On the one hand, the National Labor Relations Board (NLRB or the Board) and the courts have construed section 8(a)(1) of the Acts to prohibit a wide range and variety of conduct designed to defeat employees\u27 organizational rights. On the other hand, courts have construed the first amendment to protect a litigant\u27s .right of access to the courts. Moreover, a prohibition on civil suits involving state law claims ignores substantial state interests traditionally asserted to protect the general welfare. In the NLRA context, the employer\u27s right to sue employee-organizers during a union-organizing campaign is in tension with the right of employees to organize. When employees seek to improve their bargaining status by attempting to band together, their attempts are undercut if their employer hales them into court for conduct and activities carried out in furtherance of their efforts to persuade other employees to join with them. But under the petition clause of the first amendment, to protect employees from retaliatory lawsuits by prohibiting and enjoining such suits would impinge upon an employer\u27s right of access to seek judicial redress of wrongs that it has suffered notwithstanding any retaliatory motive. The Supreme Court in Bill Johnson\u27s Restaurants, Inc. v. NLRB recently resolved this tension in favor of the employer by holding that the filing and prosecution of a well-founded, albeit retaliatory, lawsuit may not be enjoined permanently as an unfair labor practice. Employers may misperceive the Bill Johnson\u27s decision as tacit permission to initiate nonfrivolous, retaliatory law-suits in response to union-organizing campaigns without fear of NLRB intervention. Consequently, the likelihood exists that employers may begin using this weapon in a sophisticated fashion to thwart organizing drives by their unorganized employees. The national labor policy of encouraging collective bargaining will be threatened if the use of retaliatory suits to deter workers from organizing becomes widespread. In the wake of Bill Johnson\u27s the Board must be prepared to respond to the retaliatory suit tactic in a manner that safeguards employees\u27 statutory self-organization rights without impinging impermissibly upon employers\u27constitutional petition rights or ignoring the states\u27 interest in maintaining domestic peace. The purpose of this Article is to examine the right of an employer to commence a nonfrivolous, retaliatory suit during an organizational campaign, and to suggest a reasonable reconciliation of the conflict between the employees\u27 right to form and join unions without employer interference and the employer\u27s right to petition the judiciary for redress of wrongs. Part II describes the Court\u27s Bill Johnson\u27s decision and its accommodation of competing interests. Part III addresses the weaknesses of the current remedies available to the Board and proposes an accommodation that better promotes the national labor policy of. encouraging collective bar-gaining. This proposal regulates the timing of the employer\u27s suit during a union organizing drive without altogether prohibiting such a suit. Part IV examines the history of the Board\u27s effort to regulate retaliatory lawsuits. This history reveals that giving employers an unfettered right to sue is unsatisfactory but that the right of access to the courts is an important interest that must be protected. Part V analyzes the constitutional aspects of the Court\u27s decision in Bill Johnson\u27s and suggests that the constitutional right of access to the courts is not as clear cut as Bill Johnson\u27s might indicate. Finally, part VI explains why the proposed accommodation is neither insensitive to the state\u27s interest in protecting the health and welfare of its citizens nor an impermissible infringement of the employer\u27s right to sue