                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                        Pursuant to Sixth Circuit I.O.P. 32.1(b)
                               File Name: 13a0312p.06

             UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                              _________________


                                                X
                 Petitioner/Cross-Respondent, -
 NATIONAL LABOR RELATIONS BOARD,
                                                 -
                                                 -
                                                 -
                                                     No. 12-1235/1351
 UNITED ASSOCIATION OF JOURNEYMEN AND
                                                 ,
                                                  >
                                                 -
 APPRENTICES OF THE PLUMBING AND PIPE

 AND CANADA, AFL-CIO; LOCAL 357, UNITED -
 FITTING INDUSTRY OF THE UNITED STATES
                                                 -
                                                 -
 ASSOCIATION OF JOURNEYMEN AND
                                                 -
                                                 -
 APPRENTICES OF THE PLUMBING AND PIPE

                                                 -
 FITTING INDUSTRY; LOCAL 7 OF THE SHEET
                                                 -
 METAL WORKERS INTERNATIONAL
                                                 -
 ASSOCIATION,
                                   Intervenors, -
                                                 -
                                                 -
                                                 -
           v.
                                                 -
 ALLIED MECHANICAL SERVICES, INC.,               -
                 Respondent/Cross-Petitioner. N
 On Application for Enforcement and Cross-Petition for a Review of an Order of the
                          National Labor Relations Board..
                   Nos. 7-CA-41687; 7-CA-41783; 7-CA-41993.
                             Argued: March 15, 2013
                      Decided and Filed: October 30, 2013
       Before: DAUGHTREY, ROGERS, and McKEAGUE, Circuit Judges

                               _________________

                                   COUNSEL
ARGUED: Kira Dellinger Vol, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Petitioner/Cross-Respondent. David M. Buday, MILLER
JOHNSON, Kalamazoo, Michigan, for Respondent/Cross-Petitioner. Nicholas R.
Femia, O’DONOGHUE & O’DONOGHUE LLP, Washington, D.C., for Intervenor
United Association of Journeymen. Tinamarie Pappas, LAW OFFICES OF
TINAMARIE PAPPAS, Ann Arbor, Michigan, for Intervenor UA Plumbers.
ON BRIEF: Kira Dellinger Vol, Julie Broido, Linda Dreeben, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for Petitioner/Cross-Respondent. David M.
Buday, Gregory P. Ripple, MILLER JOHNSON, Kalamazoo, Michigan, for


                                         1
No. 12-1235/1351      NLRB v. Allied Mechanical Services, Inc.                      Page 2


Respondent/Cross-Petitioner. Nicholas R. Femia, O’DONOGHUE & O’DONOGHUE
LLP, Washington, D.C., for Intervenor United Association of Journeymen. Tinamarie
Pappas, LAW OFFICES OF TINAMARIE PAPPAS, Ann Arbor, Michigan, for
Intervenor UA Plumbers.
    ROGERS, J., delivered the opinion of the court, in which McKEAGUE, J. joined.
DAUGHTREY, J. (pp. 14-25), delivered a separate dissenting opinion.

                                  _________________

                                       OPINION
                                  _________________

        ROGERS, Circuit Judge. Allied Mechanical Services, a union contractor, filed
suit against employee unions and their affiliates claiming that the unions improperly
interfered with benefits promised to Allied in an agreement with one of the unions.
Allied alleged breach of the collective bargaining agreement and violations under the
section of the National Labor Relations Act (NLRA) used to punish so-called secondary
boycotts. The district court dismissed Allied’s suit for failure to state any claim upon
which relief could be granted, and the National Labor Relations Board (NLRB) later
determined that the bringing of the federal suit constituted an unfair labor practice.
Applying the substantial evidence test in a way that takes into account this court’s
expertise in both the First Amendment and federal litigation, that test is not met.
Important First Amendment considerations keep us from upholding the Board’s order
in this case.

        This suit appears before this court following two related administrative decisions,
which concluded that Allied violated § 8(a)(1) of the National Labor Relations Act by
bringing a federal suit against a number of local and national labor union entities. An
Administrative Law Judge (ALJ), and later the full National Labor Relations Board,
concluded that the suit was an unfair labor practice in that it “interfere[d] with,
restrain[ed], or coerce[d] employees in the exercise of” their rights to organize and
engage in collective bargaining and related activities. See Allied Mech. Servs., Inc.,
357 NLRB No. 101, 2011 WL 5374170 (Oct. 25, 2011); 29 U.S.C. §§ 157–58.
No. 12-1235/1351          NLRB v. Allied Mechanical Services, Inc.                               Page 3


         Allied Mechanical Services, a Michigan manufacturer and installer of heating,
ventilation, and air-conditioning systems, brought the underlying federal lawsuit against
several defendants. These included:

         •        Local 357 of the United Association of Journeymen and
                  Apprentices of the Plumbing and Pipefitting Industry—the local
                  chapter of plumbers and pipe-fitters, with which Allied had in the
                  past had a tumultuous relationship;
         •        Local 7 of the Sheet Metal Workers’ International
                  Association—the local chapter of sheet metal workers, with
                  which Allied had not had prior problems; and
         •        the United Association of Journeymen and Apprentices of the
                  Plumbing and Pipe Fitting Industry of the United States and
                  Canada, AFL-CIO—Local 357’s umbrella organization, with
                  which Allied had not historically dealt directly.

Allied argued that the two local unions colluded to withhold otherwise available job-
targeting funds from Allied. The job-targeting-fund program provided union contractors
with money that would enable the employers to lower bids on certain jobs so that union
contractors could achieve a competitive advantage over non-union contractors. Under
the program, Local 7 collected dues from its members, including Allied employees, and
used those dues in part to subsidize union contractors who chose to be part of the
program.

         In February of 1998, Local 7 made job-targeting funds available for a job for the
Kalamazoo Red Cross. However, although Allied had previously received job-targeting
funds from Local 7, the union did not allow Allied to receive funds for the Red Cross
job. Allied claimed that following the Red Cross job, Local 7 denied it job-targeting
funds for several other projects, while other union contractors continued to benefit from
the program. According to Allied, Local 7’s business agent informed Allied that it
would not be eligible for funds on the Red Cross job because Allied had not signed a
collective-bargaining agreement with the plumbers and pipe-fitters union (Local 3571).

         1
          Prior to 1998, the plumbers and pipe-fitters were represented by two organizations, Local 337
and Local 357, which merged in March of that year. For purposes of this opinion, we refer to the entities
as “Local 357.”
No. 12-1235/1351        NLRB v. Allied Mechanical Services, Inc.                            Page 4


        Allied’s history with Local 357 was characterized by labor disputes,2 and the two
had consistently failed to reach a collective-bargaining agreement despite years of
negotiations. Based on the information from Local 7’s business manager and on the
company’s history with Local 357, Allied concluded that the two local unions and their
national counterparts were responsible for illegally keeping Allied from getting the job-
targeting funds.

        Allied’s complaint, which it filed in the federal district court for the Western
District of Michigan, named the two local unions and the national unions. Count 1
alleged that the plumbers and pipe-fitters violated § 8(b)(4) of the NLRA by causing
Local 7 to deny job-targeting funds for the jobs. Count 2 alleged that the same provision
of the NLRA was violated because the plumbers and pipe-fitters denied Allied the use
of the funds and thereby created a “barrier” that “restrain[ed]” it from doing business
with potential customers. Count 3 alleged that the local and national sheet metal unions
violated § 301 of the NLRA by breaching Local 7’s collective-bargaining agreement
with Allied. Finally, Count 4 alleged that the plumbers and pipe-fitters (local and
national) “threatened, coerced, or otherwise restrained” Allied’s plumbing and pipe-
fitting employees by preventing Local 7 from awarding Allied job-targeting funds, also
in violation of § 8(b)(4) of the NLRA.

        In a lengthy opinion, the district court dismissed Allied’s complaint in its
entirety. A panel of this court affirmed in a per curiam opinion. Allied Mech. Servs.,
Inc. v. Local 337, 221 F.3d 1333, 2000 WL 924594 (6th Cir. 2000). Three of Allied’s
claims—the ones pertaining to § 8(b)(4)—alleged, in essence, that the unions violated
the so-called “secondary boycott” provisions of the Act, which prohibit any act “whose
sanctions bear, not upon the employer who alone is a party to the dispute, but upon some
third party who has no concern in it.” Local 761, Int’l Union of Elec., Radio & Mach.
Workers v. NLRB, 366 U.S. 667, 672 (1961) (internal quotation marks removed). On de
novo review, this court agreed with the district court that any influence exerted by the


        2
          On four occasions between 1993 and 1998, the NLRB found that Allied had violated the NLRA.
See Allied Mech. Servs., Inc., 357 NLRB No. 101, 2011 WL 5374170, at *1–2.
No. 12-1235/1351         NLRB v. Allied Mechanical Services, Inc.                               Page 5


plumbers and pipe-fitters over Local 7’s use of its job-targeting funds was not sufficient
to trigger the protections of the secondary-boycott provisions of the NLRA. Allied
Mech. Servs., Inc., 2000 WL 924594, at *4–5. Finally, this court affirmed the district
court’s conclusion that Allied’s breach-of-contract claim was not subject to review
because an arbitrator had already reached a final and binding decision on the matter
within his decision-making authority, under the terms of the CBA. On this claim, our
court noted that “[w]ere we free to interpret the contract, or review the claims of factual
or legal error, . . . we would be inclined to view this claim differently than the [arbitral
board].” Id. at *7.

         After the litigation concluded, the unions brought an unfair-labor-practice claim
before the NLRB, claiming that Allied violated the NLRA by filing the federal suit. On
February 21, 2001, an ALJ agreed with the unions and decided that the unions must be
reimbursed for their expenses in litigating the federal suit, but denied “the extraordinary
remedy of reimbursement to the government and the Charging Parties for their costs in
litigating the . . . unfair labor practice.” Allied Mech. Servs., Inc., 357 NLRB No. 101,
2011 WL 5374170, at *30. Several parties filed exceptions to that decision, and the full
Board reviewed the case.

         While the case was pending before the Board, the Supreme Court issued its
decision in BE & K Constr. Co. v. NLRB, 536 U.S. 516 (2002). That decision added to
the body of case law concerning the necessary standards for finding employers liable
under the NLRA for civil suits filed against labor unions, and the opinion suggested that
a more stringent test may be required to avoid implicating First Amendment concerns
related to citizens’ rights to petition the government for the redress of their grievances.3
Accordingly, the Board remanded to the ALJ for reconsideration in light of BE & K. See
Allied Mech. Servs., Inc., 357 NLRB No. 101, 2011 WL 5374170, at *33–40. After the
parties filed briefs, the ALJ issued a supplemental decision.


         3
           The Supreme Court recognized that this right is implicated in these cases. For example, in BE
& K, the majority made clear that “the genuineness of a grievance does not turn on whether it succeeds”
and clarified that “even unsuccessful but reasonably based suits advance some First Amendment rights”
such as the “public airing of disputed facts.” 536 U.S. at 532 (internal quotation marks omitted).
No. 12-1235/1351       NLRB v. Allied Mechanical Services, Inc.                       Page 6


        The ALJ adopted and applied a modified test that, in order to violate the NLRA,
litigation must be both (1) objectively baseless (as opposed to simply unsuccessful) and
(2) retaliatory. In its supplemental decision, the ALJ again concluded that liability under
the NLRA was warranted. As to objective baselessness, the supplemental decision
stated, “[n]o ‘reasonable litigant’ could realistically expect success on the merits of this
lawsuit, filed as it was with no facts ascertained, contract claims clearly precluded by the
final and binding arbitration, the obvious primary nature of the disputes, and no evidence
whatsoever to connect the two international unions with the events complained of.”
Allied Mech. Servs., Inc., 357 NLRB No. 101, 2011 WL 5374170, at *39. The ALJ
found the retaliation prong satisfied on the basis of Allied’s history of unfair labor
practices against the unions and individual employees, the timing of the lawsuit,
“[r]espondent’s avowed purpose to ‘get even’ with the unions,” passages in Allied’s
pleadings maligning the unions’ and employees’ protected activity, and the lack of a
reasonable basis in bringing the suit. Id.

        Over the dissent of one member, the NLRB adopted the recommended
disposition of the ALJ. Id. at *1–22. Although BE & K stopped short of providing a
specific test and focused instead on the type of test that underprotected petitioning rights,
the NLRB adopted the ALJ’s modified test, which it viewed as satisfying the Supreme
Court’s First Amendment concerns. The Board’s test permits liability only when the
challenged legal action was (1) objectively baseless, meaning that no reasonable litigant
would have expected to succeed on the merits of the action, and (2) subjectively
baseless, in this context meaning that it was intended to retaliate against the union for
its protected activity. See BE & K Constr. Co., 351 NLRB 451, 456 (2007). Allied
timely sought review in this court.

        While the Board defends its legal test and the application of it, Allied argues that
the Board’s test for finding liability under § 8(a)(1) of the NLRA underprotects First
Amendment rights to file suit in federal court. Allied also challenges the Board’s
determination, pursuant to its interpretation of § 8(a)(1), that Allied’s lawsuit was
No. 12-1235/1351      NLRB v. Allied Mechanical Services, Inc.                       Page 7


objectively baseless and retaliatory. Finally, Allied challenges the Board’s award of
attorneys’ fees and expenses.

        This case—invoking as it does First Amendment concerns and facts particularly
within the judicial ken—is one of the unusual cases in which the Board’s finding of an
unfair labor practice lacks substantial evidence. This court must enforce a Board
decision when “the record viewed as a whole provides sufficient evidence for a
reasonable factfinder to reach the conclusions the Board has reached.” NLRB v. Galicks,
Inc., 671 F.3d 602, 607 (6th Cir. 2012) (internal quotation marks omitted). Our
application of that scope is of necessity somewhat less deferential in this case, because
each of the primary underpinnings for substantial-evidence deference has little force in
this context. This is neither a case where the agency is in a better position to find facts,
nor a situation where the NLRB’s expertise in labor relations or its special role as a
primary source of national labor policy serves as a basis for deference in fact finding.
See, e.g., NLRB v. Local Union No. 103, Int’l Ass’n of Bridge, Structural & Ornamental
Iron Workers, 434 U.S. 335, 350 (1978).

        Deference to agency fact finding can be justified partly on the agency’s having
heard witnesses and seen the evidence. See generally 2 Richard J. Pierce, Jr.,
Administrative Law Treatise § 11.2 (5th ed. 2010) (discussing the evolution of
substantial-evidence review). This rationale does not apply to the question of whether
the previous lawsuit in this case was reasonable. We are dealing with, after all, the
likelihood of success of a case in federal court, and not with questions of credibility.
Drawing inferences from basic facts can be done just as easily—if not more so—by the
reviewing court as it can be by the Board.

        Deference to the agency is also justified in labor law and in other administrative
law contexts by the agency’s expertise and the agency’s primary role as a policy maker.
See, e.g., Dickinson v. Zurko, 527 U.S. 150, 160–61 (1999); Consolo v. Fed. Mar.
Comm’n, 383 U.S. 607, 620–21 (1966); Rochester Tel. Corp. v. United States, 307 U.S.
125, 145–46 (1939). It is for these reasons, presumably, that court deference is to the
Board rather than the ALJ when the two come to different factual conclusions. See
No. 12-1235/1351           NLRB v. Allied Mechanical Services, Inc.                                    Page 8


Universal Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951); UAW v. NLRB, 514 F.3d
574, 580–81 (6th Cir. 2008); W.F. Bolin Co. v. NLRB, 70 F.3d 863, 870 (6th Cir. 1995).
This level of deference is “firmly established . . . in cases raising issues of fact not within
the conventional experience of judges.” Far East Conference v. United States, 342 U.S.
570, 574 (1952). In contrast, the instant case deeply implicates the First Amendment
right to bring suit, and courts, more than agencies, have expertise in determining the
scope of that right, although the Board has presumed expertise in how protecting that
right will affect labor relations. The court also has more expertise than the Board in
determining the objective merit of federal lawsuits.4

         Related to this “expertise” rationale is the idea that the NLRB is intended to have
a primary role in defining labor policy. See NLRB v. Insurance Agents’ Int’l Union,
361 U.S. 477, 499 (1960); NLRB v. Hartmann Luggage Co., 453 F.2d 178, 183–84 (6th
Cir. 1971). “[T]he function of striking [the] balance to effectuate national labor policy
is often a difficult and delicate responsibility, which the Congress committed primarily
to the [NLRB], subject to limited judicial review.” NLRB v. Local Union No. 103, 434
U.S. at 350 (internal quotation marks omitted). The Board “acts in a public capacity to
give effect to the declared public policy of the [NLRA] to eliminate and prevent
obstructions to interstate commerce by encouraging collective bargaining.” Phelps
Dodge Corp. v. NLRB, 313 U.S. 177, 193 (1941) (internal quotation marks omitted).
This concern with policy often has clear applicability when it comes to the Board’s
leeway to find facts. Thus, for instance, if the relevant fact is whether an employee was
fired for union activity, the fact-related question of how much temporal proximity is
required has a policy component: the ease of showing causation may affect how cautious
employers will be in taking adverse actions following the union activity. This policy-
delegation rationale, however, is also not particularly supportive of deference in the
context of this case. Congress has of course largely delegated labor policy to the NLRB,

         4
            In his concurrence in BE & K, Justice Scalia drew attention to the serious separation-of-powers
concerns at play in these cases: “[Giving deference to the NLRB] makes resort to the courts a risky
venture, dependent upon the findings of a body that does not have the independence prescribed for Article
III courts. It would be extraordinary to interpret a statute which is silent on this subject to intrude upon the
courts’ ability to decide for themselves which postulants for their assistance should be punished.” 536 U.S.
at 538 (Scalia, J., concurring).
No. 12-1235/1351       NLRB v. Allied Mechanical Services, Inc.                       Page 9


but not necessarily policy regarding First Amendment freedoms. See NLRB v. Insurance
Agents, 361 U.S. at 499. It is clear that the Board’s authority does not extend to new
“area[s] of regulation which Congress ha[s] not committed to it.” Id. That these First
Amendment rights are implicated in these types of labor cases is made clear in the
Supreme Court’s discussion in BE & K, which recognized that “whether this class of
suits falls outside the scope of the First Amendment’s Petition Clause . . . presents a
difficult constitutional question . . . .” See 536 U.S. at 531–32.

        Thus, in determining whether substantial evidence supports the Board’s decision
in this case, our deference is limited by the realization that the purposes for the deference
to a large extent do not apply in this case.

        When the record as a whole is viewed with the scrutiny warranted by the
foregoing considerations, substantial evidence does not support the Board’s conclusion
that Allied lacked an objective basis for filing the suit. While Allied may have lost in
court, its claims do not sink to the level that no reasonable litigant could have expected
to succeed on the merits of the case. See Allied Mechanical Servs., Inc., 357 NLRB No.
101, 2011 WL 5374170, at *12; BE & K, 536 U.S. at 532. Although the district court
granted the unions’ motion to dismiss, and although this court affirmed on de novo
review, Allied had reason to believe that it could have succeeded on the merits of the
case, at least with respect to the local union entities. And although the organizational
structure of the union left Allied without hope of success against the uninvolved
international unions, their inclusion in the complaint appears more like thorough
lawyering and less like frivolity. Certainly the entire case cannot be made baseless by
their erroneous inclusion.

        While this court ultimately concluded that the secondary-boycott claims were
untenable against organizations that did not engage in commerce with Allied, Allied’s
effort to extend the reach of § 8(b)(2) to inter-union coercion was not entirely
unreasonable. The Supreme Court recognized that an unsuccessful lawsuit may yet have
had an objective basis,
No. 12-1235/1351      NLRB v. Allied Mechanical Services, Inc.                    Page 10


       because the genuineness of a grievance does not turn on whether it
       succeeds. Indeed, this is reflected by our prior cases which have
       protected petitioning whenever it is genuine, not simply when it
       triumphs. 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.”

BE & K, 536 U.S. at 532 (internal citations omitted). There may exist baseless suits in
which the plaintiff claims to be seeking an expansion of a legal theory and yet such an
expansion is plainly and objectively foreclosed. But this is not such a case.

       The function of secondary-boycott protection for employers is twofold: “the
preservation of the right of labor organizations to place pressure on employers with
whom there is a primary dispute as well as the protection of neutral employers and
employees from the labor disputes of others.” Int’l Longshoremen’s Ass’n v. Allied Int’l,
Inc., 456 U.S. 212, 223 n.20 (1982). Allied argues that it believed that such pressure,
exerted on another union with a relationship with Allied—and a relationship the health
of which had a serious effect on Allied’s ability to obtain and conduct its business—may
have been deemed actionable under the secondary-boycott provisions of the NLRA.

       Allied conceived of this liability in several possible ways, at least some of which
may have been colorable. For example, Allied claimed that Local 357 conducted an
illegal secondary boycott by threatening or coercing Local 7 into “ceas[ing] doing
business,” 29 U.S.C. § 158(b)(4)(i)(B), with Allied by withholding job-targeting funds.
There is logic in this argument, despite the fact that this court ultimately rejected it
through a narrow construction of the term “doing business.” See Allied Mech. Servs.,
2000 WL 924594, at *5. To be sure, in affirming the district court’s dismissal of
Allied’s suit with respect to this claim, this court needed to distance itself from several
decisions that lent credence to Allied’s theory. Id. at *5 n.7 (“We are not persuaded that
a contrary result is dictated by the decisions in Limbach Co. v. Sheet Metal Workers
International Ass’n, 949 F.2d 1241 (3d Cir. 1991) (en banc); Mine Workers (New
Beckley Mining Corp.), 138 L.R.R.M. 1334 (1991) enforced 977 F.2d 1470 (D.C. Cir.
1992); or George E. Hoffman & Sons, Inc. v. Teamsters Local 627, 617 F.2d 1234 (7th
Cir. 1980).”). But our narrow construction does not require a conclusion that an
No. 12-1235/1351           NLRB v. Allied Mechanical Services, Inc.                                  Page 11


alternate, broad construction was not a possible outcome of the litigation. This chance
of success—even if small—makes clear that Allied’s secondary-boycott claims, while
unsuccessful, were not objectively baseless.5

         This presence of objective basis is in itself enough to warrant reversal if, as
Justice Scalia predicted in his concurrence, “in a future appropriate case, we will
construe the [NLRA] . . . to prohibit only lawsuits that are both objectively baseless and
subjectively intended to abuse process.” BE & K, 536 U.S. at 537 (Scalia, J.,
concurring). However, we recognize that the majority opinion in BE & K leaves open
the possibility, however unlikely, that liability may still exist even though the
unsuccessful suit has an objective basis, if the suit is retaliatory in the heightened sense
that the motive is only to impose the costs of litigation on the opposing party. BE & K,
536 U.S. at 536–37. After stating that “there is nothing in the statutory test indicating
that § 158(a)(1) must be read to reach all reasonably based but unsuccessful suits filed
with a retaliatory purpose,” the Court nevertheless explicitly declined to “decide
whether the Board may declare unlawful any unsuccessful but reasonably based suits
that would not have been filed but for a motive to impose the costs of the litigation
process.” Id. at 538. This possibility is problematic because “it poses a difficult
question under the First Amendment: whether an executive agency can be given the
power to punish a reasonably based suit filed in an Article III court whenever it
concludes—insulated from de novo judicial review . . .—that the complainant had one
motive rather than another.” Id. at 538 (Scalia, J., concurring). However, we need not
address this troubling possibility here, because the NLRB made no finding that Allied’s
suit was retaliatory in this stricter sense, nor is there evidence apparent in the record to
support such a finding.


         5
           The breach-of-contract claim was rejected because of the insufficiency of Allied’s allegations
that the arbitrator’s determination departed from the essence of the CBA and was not supported by the
CBA. Allied’s argument was more colorable then than it would be today. The law of this Circuit was
much freer at that time with respect to the ability to review an arbitrator’s interpretation of a contract. For
instance, an arbitral decision could be overturned if the award “conflict[ed] with express terms of the
collective bargaining agreement.” Cement Divisions, Nat. Gypsum Co. (Huron) v. United Steelworkers
of Am., AFL-CIO-CLC, Local 135, 793 F.2d 759, 766 (6th Cir. 1986). Such comparatively nondeferential
review of arbitral awards was explicitly overruled in Michigan Family Res., Inc. v. Serv. Employees Int'l
Union Local 517M, 475 F.3d 746, 753 (6th Cir. 2007) (en banc), but that occurred after the litigation at
issue in this case.
No. 12-1235/1351           NLRB v. Allied Mechanical Services, Inc.                                Page 12


         The evidence of retaliation cited by the ALJ does not permit the conclusion that
Allied brought the suit in order to impose the costs of litigation on the unions. Rather,
it shows the more run-of-the-mill type of animus that the Court was reluctant to penalize
in its discussion in BE & K. See Id. at 533–35.6 The Board cited Allied’s historically
“tumultuous relationship with Local 357,” noting Allied’s prior labor-law violations and
the conduct that led to those penalties. Allied Mechanical Servs., Inc., 357 NLRB No.
101, 2011 WL 5374170, at *13. The Board also suggested that Allied’s inclusion of the
international unions in its complaint was evidence that the suit was driven by the same
“hostility” Allied “clearly demonstrated in its relationship with Local 357.” Id. The
Board also concluded that “[i]ndependently, the lawsuit was . . . retaliatory on its face”
because “[i]t sought an award of money damages from the unions based on their
statutorily protected conduct—acting in concert to induce [Allied] via lawful pressure
to reach an agreement with Local 357.” Id at *14. The Board found further evidence
of retaliatory motive in Allied’s complaint. The Board noted that Allied mentioned the
unions’ prior unfair-labor-practices complaints and mini-strikes, and the Board
concluded that because of these references the “complaint by its very terms
demonstrated that [Allied’s] lawsuit was motivated by a desire to retaliate against the
protected activity of Local 357 and the employees it represented.” Id. Finally, the Board
cited the evidence of objective baselessness as proof in itself that the suit was
subjectively retaliatory in that “the lawsuit’s obvious lack of merit is further evidence
that [Allied] sought to retaliate against the Unions by imposing on them the costs and
burdens of the litigation process.” Id.

         Despite this last conclusory statement, the evidence in the record is not
substantial enough to show that Allied’s motive was specifically to punish the unions


         6
           The majority did not entirely foreclose the Board’s ability to penalize “unsuccessful suits
brought with a retaliatory motive” but held that finding a “retaliatory motive,” without more, was not
sufficient with respect to a suit that was unsuccessful but nonetheless objectively reasonable. If such suits
are sanctionable, there must be a greater showing of animus. The majority noted that the Board’s then-
applicable definition of retaliation “broadly cover[ed] a substantial amount of genuine petitioning,” since
an employer’s suit challenging union conduct that it reasonably believed to be illegal would nevertheless
“interfere with or deter some employees’ exercise of NLRA rights.” BE & K, 536 U.S. at 533. The Court
recognized that “[a]s long as a plaintiff’s purpose is to stop conduct he reasonably believes is illegal,
petitioning is genuine both objectively and subjectively.” Id. at 534.
No. 12-1235/1351          NLRB v. Allied Mechanical Services, Inc.                              Page 13


through litigation costs. Rather, the record indicates that the retaliatory motive, if any,
related to the “ill will [that] is not uncommon in litigation.” See BE & K, 536 U.S. at
534.7 In BE & K, the Court reaffirmed its precedent that “[d]ebate on public issues will
not be uninhibited if the speaker must run the risk that it will be proved in court that he
spoke out of hatred.” Id. (quoting Garrison v . Louisiana, 379 U.S. 64, 73–74 (1964)).
The evidence cited by the Board may have proved that there was such ill will between
Allied and Local 357 as to rise to the level of “hatred.” But none of the evidence offers
support for the proposition that Allied’s reasonably based suit was filed without regard
for the merits and was instead only intended to cost the unions money.

         For the foregoing reasons, we deny the Board’s petition for enforcement of its
order.




         7
           Even Justice Souter, who wrote separately to note that he would limit the extent to which BE
& K is read to encourage a strict test, warned that the Board cannot find “‘retaliatory motive’ almost
exclusively [based] upon the simple fact that the employer filed a reasonably based but unsuccessful
lawsuit and the employer did not like the union.” 536 U.S. at 539 (Souter, J., concurring). He and the
three Justices who joined him left open the possibility that “the evidence of ‘retaliation’ or antiunion
motive might be stronger or different, showing, for example, an employer, indifferent to outcome, who
intends the reasonably based but unsuccessful lawsuit simply to impose litigation costs on the union.” Id.
No. 12-1235/1351      NLRB v. Allied Mechanical Services, Inc.                     Page 14


                                  _________________

                                        DISSENT
                                  _________________

        MARTHA CRAIG DAUGHTREY, Circuit Judge, dissenting. Because my
colleagues have reached the decision not to enforce the National Labor Relations
Board’s order against defendant Allied Mechanical Services by ignoring both the
evidence in the record and sound principles of administrative law, I respectfully dissent.

        In BE&K Construction Co. v. NLRB, 536 U.S. 516 (2002), the United States
Supreme Court recognized that an employer’s First Amendment right to petition the
courts might be infringed if lawsuits against unions filed by such employers were
deemed to be unfair labor practices simply because those lawsuits proved to be
unsuccessful. Id. at 536. Indeed, the Court noted that nothing in the text of the National
Labor Relations Act (NLRA), 29 U.S.C. §§ 151-169, indicates that statutory restrictions
on an employer’s interference with employee rights “must be read to reach all
reasonably based but unsuccessful suits filed with a retaliatory purpose.” Id. (emphasis
added). Notably, however, the Supreme Court did “not decide whether the Board may
declare unlawful any unsuccessful but reasonably based suits that would not have been
filed but for a motive to impose costs of the litigation process, regardless of the outcome,
in retaliation for NLRA protected activity.” Id. at 536-37.

        Because the Court in BE&K Construction did not formulate the appropriate
framework to be used in such challenges, on remand the Board exercised its discretion
to do so on its own. Utilizing its expertise in matters of labor law, the Board held that
employer-initiated lawsuits against unions violate the protections afforded by section
8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1), if the employer’s lawsuit against an
employee union “lacks a reasonable basis and was brought with the requisite kind of
retaliatory purpose.” BE&K Const. Co., 351 NLRB 451, 458 (2007). In this case, the
majority does not disagree with the application of the Board’s framework; instead, my
colleagues attempt to justify their decision to reverse the Board’s holding by reference
to Allied Mechanical’s First Amendment rights and this court’s apparently supernatural
No. 12-1235/1351       NLRB v. Allied Mechanical Services, Inc.                     Page 15


ability to decipher precepts of the applicable substantive law. In doing so, the majority
ignores salient facts in the record and dangerously subverts long-standing principles of
administrative-law jurisprudence.

I. The Lawsuit Was Objectively Baseless

        In August 1998, Allied Mechanical filed suit against two local unions and the
unions’ international organizations, in essence challenging the decision by Local 7 of the
Sheet Metal Workers International Association to deny job-targeting funds to Allied
Mechanical on various jobs in western Michigan. The district court dismissed the
complaint in its entirety, and a panel of this court affirmed that conclusion in a per
curiam opinion. See Allied Mech. Servs., Inc. v. Local 337, et al., 221 F.3d 1333, 2000
WL 924594 (6th Cir. 2000). The majority contends, however, that “[w]hile Allied may
have lost in court, its claims [d]o not sink to the level that no reasonable litigant could
have expected to succeed on the merits of the case.” However, a fair review of the
record and a proper application of relevant legal principles establishes just the opposite:
that the suit was purely and simply a sham.

A. Baseless Claims Against the International Union Organizations

        Astoundingly, the majority declares that “although the organizational structure
of the union left Allied Mechanical without hope of success against the uninvolved
international unions, their inclusion in the complaint appears more like thorough
lawyering and less like frivolity.” But this statement is a radical, internally inconsistent,
and legally specious proposition. First, from a purely factual standpoint, Allied
Mechanical’s inclusion of the international unions as defendants in the complaint is the
height of frivolousness and an exemplar of how not to draft a complaint if one hopes to
avoid sanctions under Rule 11 of the Federal Rules of Civil Procedure. Rule 11(b)(3)
explicitly states that by signing a complaint and filing it with a federal court, an attorney
certifies that “the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable opportunity for further
investigation or discovery.” Here, however, Allied Mechanical is patently unable to
No. 12-1235/1351       NLRB v. Allied Mechanical Services, Inc.                    Page 16


make such assertions truthfully. For example, Allied Mechanical’s claims against the
Sheet Metal International were dismissed by the district court because the complaint
itself failed to indicate that any acts of Local 7 were undertaken as an agent of the
international union.

       Even more egregious and blatantly without factual basis were Allied
Mechanical’s claims against the United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry (UA).           Indeed, Daniel Huizinga, Allied
Mechanical’s co-owner, testified before an administrative law judge that he had
absolutely “no personal knowledge” that the UA “authorized or approved any of the
specific acts alleged in the Complaint,” and that no individual from Local 7 had ever told
him “that officials of the UA had requested that they deny job-targeting funds to Allied
Mechanical.” Furthermore, Huizinga admitted that he had no memory of ever asking
Local 7 officials “whether UA Local 357 was coercing [them] to withhold job-targeting
funds.” Despite that stark lack of any evidentiary support, Allied Mechanical did not
hesitate to allege that the internationals were liable for the actions of the local unions.

       As the majority itself asserts, Allied Mechanical was, both objectively and
subjectively, “without hope of success against the uninvolved international unions.” I
am at a complete loss to understand how the majority can acknowledge the hopelessness
and baselessness of such claims and yet assert, without the slightest recognition of the
inherent irony, that such pleading “appears more like thorough lawyering.” “Thorough
lawyering”does not now, and has never before, justified the advancement of claims
without any factual or legal basis. Such actions smack not of thoroughness but of
sanctionable misrepresentation.

B. Baseless Claims Against the Local Unions

       Similarly, despite the majority’s claims to the contrary, Allied Mechanical had
no hope of success on its equally baseless claims against the local union affiliates.
Without question, litigants may seek to extend the reach of statutory and constitutional
rights and responsibilities. As even the majority asserts, however, “There may exist
baseless suits in which the plaintiff claims to be seeking an expansion of a legal theory
No. 12-1235/1351       NLRB v. Allied Mechanical Services, Inc.                     Page 17


and yet such an expansion is plainly and objectively foreclosed.” Although the majority
concludes that “this is not such a case,” I view Allied’s attempt to haul the local unions
into court as nothing other than the most thinly veiled attempt to extract precious time,
energy, and funds from the locals.

        The very fact that Allied Mechanical sought to use the NLRA’s prohibitions on
secondary boycotts to prosecute the local unions proves the point. As we have
recognized consistently, “[d]uring . . . a secondary boycott, a union brings economic
pressure to bear on a primary employer to do something the union wants . . . by inducing
a secondary employer doing business with the primary employer to bring economic
pressure on the primary employer.” Shafer Redi-Mix, Inc. v. Chauffeurs, Teamsters &
Helpers Local Union #7, 643 F.3d 473, 477 (6th Cir. 2011) (quoting F.A. Wilhelm
Constr. Co. v. Ky. State Dist. Council of Carpenters, 293 F.3d 935, 938 (6th Cir. 2002))
(internal quotation marks omitted) (emphasis added). Absolutely nothing in Allied
Mechanical’s complaint against the local unions alleged, or even intimated, that those
organizations brought any economic pressure whatever on a “secondary employer” or
neutral party. In fact, Allied Mechanical fails to allege that any threats or restraints were
directed toward any entity other than Allied Mechanical itself.

        Instead, Allied Mechanical argues “that Local 357 conducted an illegal
secondary boycott by threatening or coercing Local 7 into ‘ceas[ing] doing business,’
29 U.S.C. § 158(b)(4)(i)(B), with Allied Mechanical by withholding job-targeting
funds.” However, Local 7 is not a “secondary employer” for purposes of this litigation.
Rather, both Local 7 and Local 357 represent individual employees of the same company
– Allied Mechanical. Allied Mechanical cannot simply redefine a secondary boycott as
something it is not in order to twist the unambiguous meaning of a statute and then
argue, perversely, that it is seeking a good-faith expansion of existing law. We would
deem objectively baseless a claim by an apple farmer that he is entitled to subsidies
allotted to growers of oranges because apples and oranges both are fruits. Similarly,
Allied Mechanical’s claim that the local unions violated the secondary-boycott
provisions of the NLRA because they allegedly engaged in concerted action against their
No. 12-1235/1351         NLRB v. Allied Mechanical Services, Inc.                  Page 18


primary employer is an effort to create a cause of action merely by the misuse of well-
defined terms and should likewise be considered baseless.

           Allied Mechanical’s breach-of-contract cause of action against Local 7 comes
no closer to being a legitimate claim. Pursuant to Article X of the collective bargaining
agreement between Allied Mechanical and Local 7, all disputes of contract interpretation
are subject to a specific grievance framework. Allied Mechanical availed itself of that
procedure regarding the Kalamazoo Red Cross job, presenting its argument through
various stages until it was rejected unanimously by the National Joint Adjustment Board.
Because that rejection was unanimous, the decision was “final and binding” on the
parties.

           Allied Mechanical nevertheless continues to insist before this panel that the
decision reached at the final stage of the grievance procedure was incorrect. The parties
to the labor contract bargained, however, not for a court adjudication of their dispute, but
for settlement through a contractually defined grievance process that was allowed to run
its course. Consequently, we could not now overturn the arbitration decision, even if we
were convinced that serious error had been committed, “as long as the [grievance panel]
is even arguably construing or applying the contract and acting within the scope of [its]
authority.” United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38 (1987).

           As recognized in our June 2000 opinion affirming the district court’s dismissal
of Allied Mechanical’s lawsuit against the various labor organizations:

           [A]n award fails to derive its essence from a CBA [collective bargaining
           agreement] when it conflicts with express terms of a CBA; imposes
           additional requirements not expressly provided for in the CBA; is not
           rationally supported by or derived from the CBA; or is based upon
           “general considerations of fairness and equity,” rather than the exact
           terms of the CBA.

Allied Mech. Servs., Inc., 221 F.3d 1333, 2000 WL924594, at *6 (citing Monroe Auto
Equip. Co. v. Int’l Union, United Auto., Aerospace, and Agric. Implement Workers,
981 F.2d 261, 268 (6th Cir. 1992)). None of those justifications for replacing the
No. 12-1235/1351      NLRB v. Allied Mechanical Services, Inc.                     Page 19


bargained-for adjudication of the contract dispute with a court decision are present in
this matter.

       Indeed, it is impossible for the arbitrator’s ruling regarding Local 7’s distribution
of job-targeting funds to conflict with the express terms of the parties’ contract because
that agreement never once mentions the term “job-targeting funds” or even references
such a concept. Ironically, to reach the result Allied Mechanical asks of this court, we
would be required to create new contractual terms or resort to equitable principles not
envisioned by the parties when they bargained for the specific grievance procedure
employed here – exactly the type of judicial overreaching that federal arbitration and
grievance-procedure precedents forbid. Given that prohibition, it is impossible for
Allied Mechanical to set aside the “final and binding” decision of the National Joint
Adjustment Board. Because no reasonable litigant thus could have expected to prevail
on the breach-of-contract cause of action and obtain the relief requested in the complaint,
Allied Mechanical’s claims in this regard are also objectively baseless.

II. Allied Mechanical’s Subjectively Retaliatory Lawsuit Against the Union
    Defendants

       Even if Allied Mechanical’s lawsuit against the unions is deemed objectively
baseless, the Board’s finding that the company committed an unfair labor practice by
filing the action cannot be upheld unless the administrative record also contains
substantial evidence in support of the Board’s conclusion that Allied Mechanical
possessed a subjectively retaliatory motive in pursuing the course of action it did. As
in almost any effort to divine subjective intent, it is difficult, if not impossible, to
pinpoint testimony in which an alleged violator of a protective statute directly states a
desire to contravene the dictates of the enacted legislation. Indeed, what is more often
the case, an administrative or appellate record contains self-serving statements
contradicting any implication of bias or retaliatory motive. Such is the situation here as
well. During his testimony before the administrative law judge, for example, Daniel
Huizinga maintained that prior disagreements with labor unions were irrelevant to the
company’s litigation decision, even though Allied Mechanical’s complaint specifically
No. 12-1235/1351       NLRB v. Allied Mechanical Services, Inc.                      Page 20


referenced the fact that Local 357’s predecessor, Local 337, “has filed numerous unfair
labor practice charges and engaged in mini-strikes and other activities in an attempt to
disrupt and damage the business operations of [Allied Mechanical].”

        Given the obvious motive for a party to the litigation to sanitize comments
bearing on a crucial component of the litigation, agencies and courts are tasked with the
responsibility of scrutinizing the records before them in an attempt to discern, from
indirect evidence, the true intentions of sometimes bitter adversaries. In this case, the
NLRB and the unions advanced three reasons for concluding that Allied Mechanical did
indeed prosecute its court action with a motive to retaliate against the unions for
engaging in protected activity. The company counters by separating the Board’s three
stated bases for finding that Allied Mechanical harbored a retaliatory motive in filing its
suit and then argues that each one, by itself, is insufficient to justify a subjective finding
of retaliation. I reject such disaggregation and instead would analyze each of the unions’
arguments as integral parts of an overarching indictment of Allied Mechanical’s motives.

        The Board and the unions first asserted that the presence of anti-union animus
on the part of Allied Mechanical helps to justify the determination that the company
possessed a retaliatory motive in filing its federal-court complaint. The majority gives
credence, however, to Allied Mechanical’s argument that animosity between labor and
management will almost always precede the filing of such a court action; otherwise, the
parties would have been able to reconcile their differences without resort to time-
consuming, expensive litigation. The mere presence of anti-union animus thus cannot,
according to Allied Mechanical, justify a finding of subjective baselessness. Moreover,
contends the company, its longstanding collective bargaining agreement with Local 7
negates any implication that Allied Mechanical harbored ill will toward labor unions in
general.

        Although Allied Mechanical is correct that the mere existence of anti-union
animus alone would seldom justify a finding that a company possessed an improper
motive in filing a lawsuit against a labor union, additional factors are brought to bear in
this dispute. The evidence of the tumultuous relationship between Allied Mechanical
No. 12-1235/1351      NLRB v. Allied Mechanical Services, Inc.                     Page 21


on one hand and the UA and Local 357 on the other lends great support to the Board’s
conclusion that such animus should be considered an important factor in gauging the
company’s retaliatory motivation in filing its 1998 lawsuit. It is undisputed that Local
357 (and its predecessor, Local 337), despite being recognized as the representative of
Allied Mechanical’s pipe fitters, was unable to negotiate a collective bargaining
agreement with the company from 1991 through the time of the filing of Allied
Mechanical’s lawsuit in 1998. Indeed, John Huizinga, Allied Mechanical’s vice-
president, was quoted as saying that he did not believe the company would ever sign
such an agreement with Local 357.          Moreover, the relationship between Allied
Mechanical and the union was so fraught with continued bitterness and animosity that
the Board, on numerous occasions, found that the company committed unfair labor
practices against the union and the employees that Local 357 represented.

        In the absence of an outright admission by a company executive that the lawsuit
was filed solely to retaliate against the unions for their protected activities, perhaps the
most damning indirect evidence of such an improper motive was the claim by John
Huizinga to a Local 357 officer that “[s]omeday, you guys are going to make a mistake
over there and I’m going to get even with you.” The majority conveniently ignores this
indication of retaliatory motive in its discussion, failing even to mention the context in
which the comment was made. According to testimony before the administrative law
judge, Huizinga had just finished complaining to the union official that the local’s
activities had “cost the Company a lot of money.” Obviously, his avowal to “get even”
with the union, expressed immediately thereafter, can have only one logical implication
– that Allied Mechanical would take whatever opportunity was available to impose a
financial burden on the coffers of the labor organization in return. Such an overt threat
of retaliation, in conjunction with other evidence of Allied Mechanical’s dislike and
mistreatment of Local 357, clearly was properly considered by the Board in ascertaining
the true motivation of the company in bringing suit against Local 357, Local 7, and the
locals’ international unions.
No. 12-1235/1351      NLRB v. Allied Mechanical Services, Inc.                    Page 22


       Second, the Board and unions pointed to the fact that Allied Mechanical brought
suit against the unions for the exercise of protected activities as further evidence of the
company’s improper motives. Allied Mechanical argued, however, that even though
protected conduct might be targeted in a lawsuit, no retaliatory motive can be presumed
because “the employer’s motive may still reflect only a subjectively genuine desire to
test the legality of the conduct” that the employer believed was unprotected. See BE&K
Constr., 536 U.S. at 533. But, in this case, Allied Mechanical did not merely “test the
legality of [otherwise protected] conduct.” The true motive for the company’s suit can
be gleaned from the fact that, while ostensibly challenging the legitimacy of Local 7's
denial of job-targeting funds, Allied Mechanical’s complaint gratuitously mentioned that
Local 357 “has filed numerous unfair labor practice charges and engaged in mini-strikes
and other activities.” Those activities, clearly protected under the provisions of the
NLRA and, in fact, the subject of some Board rulings in the union’s favor, were in no
way germane to the gravamen of Allied Mechanical’s federal-court suit. The Board thus
found that such references in the company’s complaint “demonstrated that [the] lawsuit
was motivated by a desire to retaliate against the protected activity of Local 357 and
employees it represented” for conduct completely unrelated to the basis of the court
action. Allied Mech. Servs., Inc., 357 NLRB No. 101, 2011 WL 5374170, at *14 (2011).

       The Board and the unions additionally relied on the objective baselessness of the
suit to shed light on Allied Mechanical’s subjective intent. The company argued that
such a consideration improperly conflates the two prongs of the BE&K Construction
analysis by permitting the mere fact that the suit was objectively baseless to serve also
as evidence for a finding that the company filed the suit with a retaliatory motive. If the
objective baselessness of Allied Mechanical’s suit were the only indication of the
company’s retaliatory motive, that argument would have more force. In this instance,
however, additional considerations bolster the conclusion that the purpose in filing the
suit was less than pure. In conjunction with the other bases already mentioned as
support for the Board’s conclusion, the baselessness of the suit itself is in fact telling
evidence of the motive behind its filing. As the NLRB argues in its appellate brief,
“Common sense dictates that because the Company could have no realistic expectation
No. 12-1235/1351      NLRB v. Allied Mechanical Services, Inc.                    Page 23


of prevailing on the merits of its lawsuit, it must have filed the lawsuit for some other
reason.” Br. of NLRB at 47. Stated differently:

       [A] complete lack of any reasonable basis to expect success – as opposed
       to lack of success despite a reasonable basis – is undeniably relevant to
       motive. The fact that a litigant could not reasonably hope for – i.e.,
       should have known he had no realistic chance of – success on the merits
       of his lawsuit necessarily undermines any argument that he sincerely
       sought relief through that lawsuit.

Br. of NLRB at 49 (citing Petrochem Insulation, 330 NLRB 47, 50 (1999), enforced,
240 F.3d 26 (D.C. Cir. 2001)).

       Without doubt, substantial evidence in the record supports the administrative
determination that three articulated bases combined to provide irrefutable support for the
proposition that Allied Mechanical’s suit against the unions was motivated by an
improper, retaliatory objective. Not only does the record contain evidence of the
company’s threats of retaliation and other anti-union animus and evidence of Allied
Mechanical’s attempt to target protected activity that was not at issue in the dispute, but
the utter lack of any reasonable basis to expect success in the suit betrays Allied
Mechanical’s fraudulent intent.

       Nevertheless, the majority somehow concludes that the record contains no
evidentiary support “for the proposition that Allied Mechanical’s reasonably based suit
was filed without regard to the merits and was instead only intended to cost the unions
money.” (Emphasis added.) The only way such a conclusion can be reached is by
beginning with the wholly untenable position that Allied Mechanical’s suit was
“reasonably based,” which under all the circumstances of this case is a premise
supported only by fantasy. The Board correctly concluded that Allied Mechanical had
absolutely no chance for success on the merits of the company’s claims. To argue that
Allied Mechanical was merely seeking an extension of existing law by arguing that the
local unions violated the NLRA’s secondary-boycott provisions completely ignores the
plain meaning of the term “secondary boycott.” Furthermore, no evidence was adduced
by Allied Mechanical to support its inclusion of the international unions as parties
No. 12-1235/1351      NLRB v. Allied Mechanical Services, Inc.                    Page 24


defendant, and it is inconceivable that the company reasonably could have believed that
it could advance its breach-of-contract claims in light of the binding arbitral decision of
the National Joint Adjustment Board that clearly interpreted the terms of the relevant
contract.

       In light of the majority’s determination that Allied Mechanical’s purpose in filing
the suit against the unions was mere “hatred” and not based upon a retaliatory motive,
I am constrained to believe that my colleagues would never find sufficient evidence of
retaliation in any case, absent a direct statement from a company official that retaliation
for exercise of protected rights was the actual basis for the suit. This record is replete
with evidence that Allied Mechanical indeed harbored “hatred” for labor organizations.
The majority has chosen not to notice, however, that the hatred that was proven spilled
over into such vituperation that Allied Mechanical was willing to challenge at every turn
the very bases of American labor law and take any action necessary to “get even with”
the workers and their representatives merely because of the workers’ success on claims
against Allied Mechanical that alleged repeated violations of the principles underlying
protective labor legislation.

       I am convinced beyond all doubt that Allied Mechanical’s lawsuit was both
objectively baseless and subjectively motivated by an unlawful, retaliatory purpose. I
thus would hold that the Board appropriately concluded that Allied Mechanical violated
the provisions of 29 U.S.C. § 158(a)(1) by haling the local unions and their international
organizations into court.

III. Deference Owed to Certain Administrative Findings

       Brief mention must also be made regarding the majority’s effort to undermine
the legitimacy of the NLRB and of administrative decision-makers in general by
asserting that this court owes no deference whatever to findings of the Board that differ
from the result that the majority would rather reach. According to the majority, “This
is neither a case where the agency is in a better position to find facts, nor a situation
where the NLRB’s expertise in labor relations or its special role as a primary source of
labor policy serves as a basis for deference in fact finding.”
No. 12-1235/1351       NLRB v. Allied Mechanical Services, Inc.                   Page 25


       I agree that we as a court have a duty to protect the First Amendment rights of
Allied Mechanical (and of Allied Mechanical’s employees). Given the decisional
framework set up in the wake of the Supreme Court’s decision in BE&K Construction,
we are also required to determine whether the claims advanced by Allied Mechanical
were objectively baseless. I cannot subscribe, however, to the majority’s contention that
the NLRB should be stripped of any meaningful role in this litigation.

       As part of our analysis, we should examine whether Allied Mechanical acted
with a retaliatory, anti-union animus in bringing suit against the labor organizations in
1998. In a case like this one, the Board is in an unique position to examine the parties’
histories and evaluate whether actions undertaken by either party are motivated by “mere
hatred” or by retaliation for past successes in vindicating workers’ rights. Of course, we
are not compelled to accept the decision of the Board in all instances. When, however,
substantial evidence in the record supports the conclusion of the administrative agency
on an issue that requires examination of the motivation of a party, we should defer to that
finding.

       The majority opinion in this case seeks to upset the carefully crafted balance of
responsibilities that characterizes judicial review of administrative determinations. For
that reason, and because the majority unreasonably validates the baseless, blatantly anti-
union, retaliatory allegations levied by Allied Mechanical against the local and
international unions, I respectfully dissent from the majority’s decision and would
enforce the well-reasoned order of the Board, while denying Allied Mechanical’s
petition for review.
