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The Supreme Court held 6/24/02 that the National Labor Relations Board (“Board”) may not sanction an employer that brought an unsuccessful suit against a union unless the Board first finds, at a minimum, that the suit was brought for the purpose of “impos[ing] the costs of the litigation process” on the union, “regardless of the outcome, in retaliation for NLRA protected activity.” In reaching this holding, the Court rejected the Board’s view that the Board may sanction an employer for committing an unfair labor practice if (1) a court earlier found an employer’s suit unmeritorious, and (2) the Board subsequently finds that the “suit is one ‘brought with a motive to interfere with the exercise of protected” union activity.’” The Court reasoned that “the Board’s definition broadly covers a substantial amount of genuine petitioning,” such as when an employer files “suit to stop conduct by a union that [the employer] reasonably believes is illegal under federal law, even though the conduct would otherwise be protected under the [National Labor Relations Act].” From there, the Court concluded that the Board’s definition of retaliation cuts into the First Amendment right to petition the government and, therefore, violates the Constitution. In casting about for a permissible definition of retaliation, the Court stated that “evidence of antiunion animus” is insufficient “to infer retaliatory motive” because, as a practical matter, most “[d]isputes between adverse parties generate” ill will. Rather, the Court made clear that the touchstone for prohibited retaliatory suits is whether the suit was brought simply to “impose the costs of the litigation process” on the union. This case is particularly important to employers that may want to challenge labor-union activities directed at them in response to an employer-union dispute.