International Brotherhood of Teamsters Local 947 v. National Labor Relations Board ( 2023 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-12745
____________________
INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL
947,
Petitioner,
MATTHEW C. BROWN,
Intervenor,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent,
ANHEUSER-BUSCH BREWING PROPERTIES, LLC,
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2 Opinion of the Court 19-12745
Intervenor.
____________________
Petition for Review of a Decision of the
National Labor Relations Board
Agency No. 12-CA-094114
____________________
Before GRANT, MARCUS, and JULIE CARNES, Circuit Judges.
JULIE CARNES, Circuit Judge:
After being fired by his employer, Anheuser-Busch Compa-
nies, LLC, Matthew Brown filed suit in federal district court alleg-
ing that his termination reflected racial discrimination and retalia-
tion, in violation of Title VII. In response, Anheuser-Busch filed a
motion seeking to compel arbitration of Brown’s district court
claims, asserting that at the time when he was hired, Brown had
agreed to be bound by the company’s Dispute Resolution Policy,
which policy required Brown to arbitrate any such claims against
the company. Brown disagreed that he was required to arbitrate
his claims, insisting that he was entitled to have his claims adjudi-
cated via district court proceedings, including a jury trial.
There is nothing unusual about an employer seeking to en-
force an arbitration agreement to which the employer argues the
suing employee is subject. Nor is it unheard of for the suing em-
ployee to contest the enforceability of the particular arbitration
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19-12745 Opinion of the Court 3
agreement. And when such disputes arise, the method of resolving
them is fairly routine: the district court interprets the agreement
to determine whether the employee can be required to pursue his
claims via arbitration instead of through a judicial proceeding. Fur-
ther, if the court concludes that the employer’s motion to compel
arbitration was not only unmeritorious, but also frivolous, the
court can levy sanctions against the employer.
That is the standard protocol by which such disputes are re-
solved. What one might not expect to happen is for a federal ad-
ministrative agency to intrude itself into the proceedings and, prior
to resolution by the district court, order the defendant employer to
cease and desist any efforts to require arbitration. But that is what
happened here. And indeed there is precedent permitting the Na-
tional Labor Relations Board (“NLRB” or “Board”) to direct per-
sons under its jurisdiction—either management or a union—to
cease their particular litigation efforts. Moreover, during his em-
ployment with Anheuser-Busch, Brown had been a member of a
bargaining unit represented by a union—the International Broth-
erhood of Teamsters. After Anheuser-Busch asked the district
court to compel arbitration, Brown filed an unfair labor practice
charge with the NLRB, arguing that the defendant-employer’s ef-
forts to enforce its arbitration agreement contravened the collec-
tive bargaining agreement and constituted a unilateral change to
the terms of Brown’s employment, in violation of the National La-
bor Relations Act (“NLRA”). The district court action was stayed
as a result of the filing of this unfair labor practice charge.
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4 Opinion of the Court 19-12745
The Administrative Law Judge (“ALJ”) assigned to rule on
the charge agreed and ordered Anheuser-Busch to withdraw por-
tions of its motion to compel arbitration in the district court litiga-
tion. The matter then moved to a review panel of the NLRB. In a
split two-one decision, the NLRB dismissed the charge. The Board
declined to determine whether Anheuser-Busch’s motion to com-
pel arbitration contravened relevant portions of the NLRA, and
thereby constituted an unfair labor practice. Instead, the Board
held that even if Anheuser-Busch’s efforts to compel arbitration
were unlawful under the NLRA, the Petition Clause of the First
Amendment generally protected its right to give it a try in the dis-
trict court litigation. Further, the Board concluded that Anheuser-
Busch’s motion to compel arbitration did not meet the exception
to a litigant’s First Amendment right to petition that the Supreme
Court had carved out in Bill Johnson’s Restaurants, Inc. v. NLRB, 461
U.S. 731 (1983) [hereinafter “Bill Johnson’s”], which exception per-
mits the Board to enjoin even reasonably-based lawsuits when the
latter have “an objective that is illegal under federal law.” Bill John-
son’s, 461 U.S. at 737 n.5.
After careful review, and with the benefit of oral argument,
we hold that the Board applied an erroneously narrow standard for
determining whether Anheuser-Busch’s motion had an illegal ob-
jective. We therefore grant the petition for review of the Board’s
order dismissing the complaint, vacate the decision of the Board,
and remand for consideration of whether enforcement of the Dis-
pute Resolution Policy against Brown would violate the NLRA.
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19-12745 Opinion of the Court 5
I. BACKGROUND
A. The Terms of Brown’s Employment with An-
heuser-Busch
Anheuser-Busch employed Brown as a “can line depal oper-
ator.” Following disciplinary actions, Anheuser-Busch terminated
Brown’s employment. Brown contends that these actions by An-
heuser-Busch constituted racial discrimination. Any claims Brown
has against his former employer are potentially governed by two
agreements: (1) a Dispute Resolution Policy he agreed to as an ap-
plicant and (2) a Collective Bargaining Agreement that governs his
employment conditions as a union employee.
1. Anheuser-Busch’s Dispute Resolution Policy
Brown signed an employment application when he applied
for a job with Anheuser-Busch. The employment application
states:
I AGREE THAT IF I BECOME EMPLOYED BY THE
COMPANY, AND UNLESS A WRITTEN
CONTRACT PROVIDES TO THE CONTRARY,
ANY CLAIM I MAY HAVE AGAINST THE
COMPANY WILL BE SUBJECT TO FINAL AND
BINDING ARBITRATION IN ACCORDANCE
WITH THE COMPANY’S DISPUTE RESOLUTION
PROGRAM, AND THAT ARBITRATION WILL BE
THE EXCLUSIVE METHOD I WILL HAVE FOR
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6 Opinion of the Court 19-12745
FINAL AND BINDING RESOLUTION OF ANY
SUCH CLAIM.
As to which employees are covered, the Dispute Resolution
Policy (sometimes referred to as the “DRP”) states it applies “to all
salaried and non-union hourly employees of Anheuser-Busch
Companies Inc.” Anheuser-Busch hired Brown. Notably, Brown
was a union employee subject at all times during his employment
to the Collective Bargaining Agreement negotiated between An-
heuser-Busch and the Union.
An employee subject to the Dispute Resolution Policy—that
is, salaried and non-union employees—“must submit his or her dis-
pute to the [Dispute Resolution Program]” when informal efforts
to resolve their dispute are unsuccessful. The dispute resolution
process has three levels for “Covered Claims”: Level 1 – Local Man-
agement Review; Level 2 – Mediation; and Level 3 – Binding Arbi-
tration. Relevant to this appeal, “Covered Claims” include
“[e]mployment discrimination and harassment claims based on . . .
race.” If a covered claim proceeds to Level 3, “[t]he arbitrator’s de-
cision is the final, binding and exclusive remedy for the Employee’s
covered claim(s) and is equally final and binding upon the Com-
pany.” Thus, the Dispute Resolution Policy precludes employees
from bringing employment discrimination claims in federal court,
meaning that, were he subject to the policy, Brown would have
been required to submit his employment discrimination and retal-
iation claims to binding arbitration.
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19-12745 Opinion of the Court 7
2. The Collective Bargaining Agreement
The Collective Bargaining Agreement (sometimes referred
to as the “CBA”) negotiated by the Union on behalf of union em-
ployees like Brown has its own procedures for resolving employee
disputes arising under this contract. Article 8 of the Collective Bar-
gaining Agreement establishes a “Grievance Procedure” to resolve
differences between Anheuser-Busch and the Union or employees
covered by the Agreement regarding: “(a) Any matter relating to
wages, hours of work, or working conditions covered by this
Agreement; or (b) Any matter involving the meaning, interpreta-
tion, application or alleged violation of this Agreement by the
Company.”
The Collective Bargaining Agreement provides that “[t]he
Company and the Union must resort to the use of the grievance
and arbitration procedure established [in Article 8].” The grievance
procedure of Article 8 provides for informal resolution of disputes
followed by a three-step process. The third and final step in the
process is submission of the dispute to a Multi-Plant Grievance
Committee. If a dispute makes it to Step 3, “[d]ecisions of the
M.P.G.C. shall be final and binding on all parties with no further
appeal.”
B. Brown’s EEOC Charge, Termination, and Griev-
ance
Brown was the subject of disciplinary action during his em-
ployment at Anheuser-Busch. He initially received a Notice of
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8 Opinion of the Court 19-12745
Violation of Plant Rules and Regulations grounded on “Refusal to
Perform.” It stated Brown “refused to comply with [his] manager’s
instruction and direct order to go to [his] job assignment on Line 1
Filler.” The Union filed a grievance contesting the notice of viola-
tion and the grievance proceeded to Step 3 before the Multi-Plant
Grievance Committee. The Multi-Plant Grievance Committee de-
nied the grievance, stating “[r]efusal of a work order is one of the
most serious industrial offenses.”
Five days before the Multi-Plant Grievance Committee de-
nied his grievance, Brown filed a Charge of Discrimination with
the Equal Employment Opportunity Commission. He alleged ra-
cial discrimination in violation of Title VII, complaining that he
had received a four-week suspension for insubordination whereas a
white male had received only a one-week suspension for insubordi-
nation from a different manager.
A few weeks after returning to work following his suspen-
sion, an incident occurred on Brown’s canning line. Specifically,
Brown failed to notify the Line 3 filler operator of a can/beer
change, causing 1,281 cases of Busch Light to be packaged in Nat-
ural Light cans and resulting in the beer having to be dumped. An-
heuser-Busch charged Brown with “Inattention to Duty” and sub-
sequently terminated his employment.
The Union filed a grievance seeking to “Remove Discipline
and make Matt Brown whole as per the CBA.” The grievance
stated:
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19-12745 Opinion of the Court 9
The grievant did not receive or sign for the split load
in question. The grievant’s previous 4 week suspen-
sion jumped progressive discipline. This incident,
while serious, should not have resulted in termina-
tion. Similar holds this year in Jacksonville have not
resulted in discipline being issued. Therefore Mr.
Brown has not received discipline in a fair and impar-
tial manner for just and sufficient cause. Mr. Brown
has had to endure disparate treatment.
Following the Union’s filing of a grievance, Brown filed a
second Charge of Discrimination with the EEOC, alleging that An-
heuser-Busch discharged him in retaliation for having filed his orig-
inal EEOC charge. He alleged that two of his co-workers were
merely put on notice and not discharged for their actions.
The Union’s grievance on behalf of Brown proceeded
through Step 3 binding arbitration before the Multi-Plant Griev-
ance Committee. Ultimately, a majority of the panel denied the
grievance: “The Panel finds that the Grievant was well aware of
the split load, and that he had the primary responsibility for it. In
this case the Company did not abuse its authority by following its
pattern of progressive discipline.” Thus, the Multi-Plant Grievance
Committee rejected the Union’s grievance and concluded that An-
heuser-Busch’s decision to fire Brown was justified.
C. Brown’s Federal District Court Action
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10 Opinion of the Court 19-12745
Operating on a separate track, the EEOC subsequently is-
sued Brown a “Notice of Right to Sue” regarding each of his
charges of race discrimination and retaliation. Brown thereafter
filed a three-count Complaint in the Middle District of Florida al-
leging racial discrimination and retaliation based on his four-week
suspension and subsequent termination. Count I alleges “Racially
Discriminatory Suspension In Violation of Title VII, § 1981, and
FCRA,” (i.e. the Florida Civil Rights Act). Count II alleges “Racially
Discriminatory Termination In Violation of Title VII, § 1981, and
FCRA.” Count III alleges “Retaliatory Termination In Violation of
Title VII, § 1981, and FCRA.” Brown’s racial discrimination claims
assert that Brown received greater discipline than comparably situ-
ated white employees who had committed similar violations.
Brown’s retaliation claim asserts that he engaged in protected ac-
tivity when he filed his original EEOC charge regarding the four-
week suspension, that Anheuser-Busch managers were aware of
the charge, and that Anheuser-Busch terminated him in retaliation
for filing the charge.
In response, Anheuser-Busch filed a motion to compel arbi-
tration arguing that the Collective Bargaining Agreement and the
Dispute Resolution Policy required Brown to arbitrate his discrim-
ination claims. As to the specific issue now before us, Anheuser-
Busch argued that “Brown agreed to arbitrate his race discrimina-
tion and retaliation claims under the DRP” by virtue of signing his
employment application. Anheuser-Busch acknowledged that the
employment application stated that disputes would be resolved
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19-12745 Opinion of the Court 11
pursuant to the DRP “unless a written contract provides to the con-
trary,” but it maintained that “[t]he CBA does not provide ‘to the
contrary’—like the DRP, it requires mandatory arbitration.” An-
heuser-Busch further acknowledged in a footnote that the Dispute
Resolution Policy states that it applies to “all salaried and non-un-
ion hourly employees,” but argued that the Dispute Resolution Pol-
icy does not prohibit union-represented employees from agreeing
to arbitrate statutory claims pursuant to the DRP.
Brown opposed the motion, arguing that he was not re-
quired to arbitrate his Title VII claims pursuant to the Dispute Res-
olution Policy. He noted that although the Collective Bargaining
Agreement required him to arbitrate any alleged violations of the
contractual obligations set out in the agreement, it did not require
arbitration of Brown’s statutory Title VII discrimination claims. In
support of this position, Brown cited to Supreme Court caselaw
holding that an individual does not forfeit a private statutory cause
of action by pursuing his contractual grievance to final arbitration
under a nondiscrimination clause of a collective-bargaining agree-
ment. See 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 260–64 (2009)
(distinguishing between contractual and statutory rights).
With respect to the Dispute Resolution Policy, Brown ar-
gued that basic contract principles precluded its enforcement, that
it did not compel arbitration because it expressly states it applies
only to salaried and non-union employees, and that Anheuser-
Busch’s “attempt to impose a non-negotiated grievance procedure
differing from the [Collective Bargaining Agreement] constitutes a
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12 Opinion of the Court 19-12745
grievous breach of its obligations under the National Labor Rela-
tions Act.” Brown asserted “[a]s the DRP differs from the griev-
ance procedures of the [Collective Bargaining Agreement] and was
not the product of negotiation with the Union, Defendant’s at-
tempt to now force bargaining-unit members like Plaintiff to resort
to it constitutes a unilateral change by it concerning a mandatory
subject of bargaining.” Brown emphasized that the grievance pro-
cedures of the collective bargaining agreement “do not cover stat-
utory employment claims nor do they provide that in the event em-
ployees pursue such claims they will be obligated to do so under
the terms of [Anheuser-Busch’s] DRP.”
D. Brown’s Unfair Labor Practice Charge
1. The Parties’ Positions
Several months after briefing on the motion to compel arbi-
tration had concluded, Brown filed an unfair labor practice charge
with the National Labor Relations Board. He alleged that An-
heuser-Busch violated Sections 8(a)(5) and 8(a)(1) of the National
Labor Relations Act 1 by applying the Dispute Resolution Policy to
him without having afforded his union an opportunity to bargain
1 Section 8(a) defines unfair labor practices by an employer. 29 U.S.C. § 158(a).
Section 8(a)(5) specifies that it is an unfair labor practice for an employer “to
refuse to bargain collectively with the representatives of his employees.” Id.§ 158(a)(5). Section 8(a)(1) specifies that it is an unfair labor practice “to inter-
fere with, restrain, or coerce employees in the exercise of the rights” to organ-
ize and collectively bargain pursuant to Section 157 (29 U.S.C. § 157) of the
Act. Id. § 158(a)(1).
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19-12745 Opinion of the Court 13
over the question whether such a policy should apply to its mem-
bers.
A Regional Director of the National Labor Relations Board
thereafter issued a complaint and notice of hearing against An-
heuser-Busch. The Director contended that when Anheuser-Busch
filed its motion to compel arbitration of Brown’s federal race dis-
crimination claims pursuant to the Dispute Resolution Policy, it
changed the terms and conditions of employment for union em-
ployees without giving prior notice to the Union and without af-
fording the Union an opportunity to bargain and, as such, violated
Sections 8(a)(5) and (1) of the Act. As relief for this violation, the
Director sought to have Anheuser-Busch withdraw that portion of
its district court motion that requested Brown’s claims be arbi-
trated pursuant to the Dispute Resolution Policy.
In response, Anheuser-Busch argued that “[r]eading Sections
8(a)(5), 8(d), and 9(a) of the Act together, an employer is only re-
quired to bargain with a union over ‘terms and conditions of em-
ployment’ for ‘employees’ in a ‘unit appropriate for such pur-
poses.’” Anheuser-Busch asserted that it did not have an obligation
to bargain with the Union because Brown, who was merely an ap-
plicant for employment, was not a member of the Union when he
agreed to arbitrate claims pursuant to the Dispute Resolution Pol-
icy, and, having been fired, he was “no longer an ‘employee’ as de-
fined by Section 2(3) of the Act” when he filed his Title VII claims.
Anheuser-Busch reasoned that there was “no basis for concluding
that a Section 8(a)(5) violation of the Act occurred when the
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14 Opinion of the Court 19-12745
Respondent’s dispute resolution policy was applied to a non-bar-
gaining unit member” in a way that did not vitally affect current
bargaining members.
2. The Administrative Law Judge Finds That An-
heuser-Busch Committed an Unfair Labor
Practice by Moving to Enforce the Dispute
Resolution Policy Against Brown
Following an evidentiary hearing, the ALJ assigned to the
case issued a decision finding that Anheuser-Busch violated both
Sections 8(a)(5) and 8(a)(1) of the Act by applying the Dispute Res-
olution Policy to Brown while he was an employee without prior
notice to the Union and without affording the Union an oppor-
tunity to bargain over the policy. The ALJ concluded that “[t]he
establishment of a dispute resolution program, or, the unilateral
application, or attempted application, of such a program for unit
employees is a mandatory subject of bargaining because it requires
employees to arbitrate terms and conditions of their employment,
including suspension and discharge.” The ALJ noted that “[t]he
Company does not dispute it took the unilateral action.”
The ALJ rejected Anheuser-Busch’s argument that it had no
duty to bargain because Brown was not a union “employee” during
his pre-employment application process and that Brown did not
meet the requirements to qualify as an employee under section 2(3)
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19-12745 Opinion of the Court 15
after he was terminated. 2 The ALJ noted that the Act’s definition
of “employee” was broad and included applicants and former em-
ployees. Accordingly, the ALJ concluded that Brown was an “em-
ployee” within the meaning of the Act when he was an applicant
and that he was still an “employee” when Anheuser-Busch filed its
motion to compel arbitration two years after Brown’s termination
for cause. Among other remedies, the ALJ ordered Anheuser-
Busch to withdraw that portion of its defense to Brown’s lawsuit
requesting the district court to compel arbitration of Brown’s
claims.
3. The Board Holds That Anheuser-Busch’s Mo-
tion Is Protected by the First Amendment’s Pe-
tition Clause
Objecting to enforcement of the ALJ’s order, Anheuser-
Busch filed exceptions to that decision with the Board. Among
other arguments, Anheuser-Busch asserted that the ALJ misapplied
labor law principles in two respects. First, Anheuser-Busch argued
2 Section 2(3) provides in part:
The term “employee” shall include any employee, and shall
not be limited to the employees of a particular employer, un-
less this subchapter explicitly states otherwise, and shall in-
clude any individual whose work has ceased as a consequence
of, or in connection with, any current labor dispute or because
of any unfair labor practice, and who has not obtained any
other regular and substantially equivalent employment . . . .
29 U.S.C. § 152(3).
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16 Opinion of the Court 19-12745
that the ALJ had misinterpreted the relevant NLRA provisions
when it concluded that Brown was at all relevant times an “em-
ployee” within the meaning of the Act and, as a result, had deter-
mined that Anheuser-Busch violated Section 8 when it sought to
arbitrate Brown’s district court claims without negotiating with the
Union. Anheuser-Busch also argued that the ALJ had erred when
it failed to determine whether applying the Dispute Resolution Pol-
icy to Brown significantly affected current bargaining unit employ-
ees.
The above issues are not before this Court on appeal. What
is before the Court arises from Anheuser-Busch’s remaining claim
of error: specifically, that the ALJ’s order requiring Anheuser-
Busch to withdraw its motion to compel arbitration pursuant to
the Dispute Resolution Policy violated Anheuser-Busch’s First
Amendment Right to Petition.
Defending the ALJ’s decision, the NLRB’s General Counsel
contended that the ALJ’s order did not violate the First Amend-
ment because Anheuser-Busch’s motion to compel arbitration fell
within Bill Johnson’s footnote 5 provision, which permits the NLRB
to enjoin lawsuits that have “an objective that is illegal under fed-
eral law.” Bill Johnson’s, 461 U.S. at 737 n.5. Specifically, the General
Counsel maintained that Anheuser-Busch’s motion to compel arbi-
tration had an illegal objective because it sought to enforce a Dis-
pute Resolution Policy that it had sprung on an employee applicant
without having ever given the Union an opportunity to bargain
concerning whether its members would be required to arbitrate all
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19-12745 Opinion of the Court 17
statutory causes of action. That being so, Anheuser-Busch’s posi-
tion “affected the rights of bargaining unit employees in violation
of Section 8(a)(5) of the Act.”
Upon review, the Board disagreed with the General Counsel,
issuing a two-to-one decision reversing the ALJ’s determination
that Anheuser-Busch had engaged in an unfair labor practice. No-
tably, the Board declined to address the merits of Brown’s charge—
that is, whether Anheuser-Busch had engaged in an unfair labor
practice by seeking to enforce an arbitration agreement that the
Union had never okayed via a collective bargaining agreement.3
Rather than address the merits, the Board determined that An-
heuser-Busch’s motion to compel was protected by the Petition
Clause of the First Amendment in accordance with Bill Johnson’s
reasoning. In essence, the Board concluded that the filing before a
judicial forum of a motion to compel arbitration could not, by it-
self, trigger the illegal objective exception that would permit the
Board to enjoin the motion’s prosecution.
After reviewing prior Board decisions—albeit none of the
cases cited in Bill Johnson’s footnote 5 as examples of suits having an
illegal objective—the Board concluded that “the enforcement of a
3 The Board stated in footnote 9 that “[i]n light of our conclusion that the
Petition Clause resolves this case, a finding that does not turn on Brown’s em-
ployment status or membership in the bargaining unit at the time the Motion
to Compel was filed, we need not address those issues. Further, our dismissal
of the complaint moots the General Counsel’s and Charging Party’s cross-ex-
ceptions seeking additional remedies.”
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18 Opinion of the Court 19-12745
policy or contractual provision is not an illegal objective if the pol-
icy or provision is not itself illegal.” The majority concluded:
Here, the DRP is not alleged to be facially unlawful.
The sole violation alleged is the manner in which the
Respondent sought to apply it to Brown, i.e., by filing
a motion in court without giving the Union notice
and an opportunity to bargain. The General Counsel
cites no case in which the Board has found that a court
filing had an “illegal objective” solely because the fil-
ing itself amounted to a unilateral change. Compare
Regional Construction Corp., 333 NLRB [313,] 320
[(2001)] (referring to “an[] underlying act by the Re-
spondent which would be a violation of some federal
law”) (emphasis added). Here, there is no “underly-
ing act,” only the Motion to Compel itself.
Thus, the majority found an injunction appropriate only if there is
an illegal “underlying act.” And the majority “position is that the
filing of the motion did not have an illegal objective within the
meaning of the Supreme Court’s Petition Clause jurisprudence be-
cause the DRP is lawful, and therefore [Anheuser-Busch], by filing
its motion, did not ask the court ‘to countenance an[] underlying
act by the Respondent which would be a violation of some federal
law.’” To hold otherwise, the majority declared, “would swallow
the rule of Bill Johnson’s and turn the Petition Clause of the First
Amendment into an empty promise.”
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19-12745 Opinion of the Court 19
A dissenting Board member strongly disagreed, arguing that
Anheuser-Busch’s motion clearly had an illegal objective because
Anheuser-Busch “sought to impose its Dispute Resolution Policy
(DRP) on a discharged bargaining unit employee . . . after he filed
a racial-discrimination lawsuit challenging his termination,” appli-
cation of which policy “was directly contrary to the applicable col-
lective-bargaining agreement that governed Brown’s employment,
and it unilaterally changed his terms and conditions of employ-
ment in violation of the National Labor Relations Act.” In short,
the dissent concluded that the Board could and should enjoin pros-
ecution of Anheuser-Busch’s motion as a violation of Sections
8(a)(5) and (1) of the Act because Anheuser-Busch “sought to im-
plement—with the aid of the federal court’s authority—a unilat-
eral change that it could not lawfully implement otherwise.” The
dissent further noted that “advocating for a result that would violate
the law does, in fact, constitute an illegal objective.”
II. DISCUSSION
The Petitioner Union, joined by Intervenor Brown, petitions
for review of the Board’s decision that the First Amendment’s Pe-
tition Clause protects Anheuser-Busch’s motion to compel arbitra-
tion pursuant to the Dispute Resolution Policy. Petitioner contends
that the NLRB’s decision to the contrary is not the product of rea-
soned decision-making, noting that Anheuser-Busch’s motion to
compel clearly had an illegal objective: that is, to change the terms
of Brown’s employment in contravention of the Collective Bar-
gaining Agreement without first bargaining with the Union.
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20 Opinion of the Court 19-12745
We review the Board’s legal conclusions de novo and its find-
ings of fact for substantial evidence. Ridgewood Health Care Ctr., Inc.
v. NLRB, 8 F.4th 1263, 1274 (11th Cir. 2021). We will not enforce a
Board decision that fails to engage in reasoned decisionmaking. Id.
at 1275; see also Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S.
359, 374–75 (1998).
A. Caselaw Concerning Arbitration of Legal Causes
of Action by Union Members Against an Employer
Collective bargaining agreements between a union and an
employer govern the conditions of employment for the employee
members of that union. Typically, such agreements call for arbi-
tration of any grievance that arises from a dispute between the un-
ion and the employer as to the parties’ compliance with the terms
of the agreement. Thus, when Anheuser-Busch fired Brown, his
union filed a grievance contesting the fairness of that decision and
seeking Brown’s reinstatement. An arbitration board then resolved
that grievance, concluding that Anheuser-Busch had just cause to
fire Brown.
But that was not the end of the story. Brown then chose to
file a race discrimination and retaliation claim under Title VII in
federal court based on the same termination that was the subject
of the grievance arbitration proceeding. The initial question a nov-
ice to this process might ask is whether an employee whose griev-
ance has been rejected can even file a subsequent legal action given
that the arbitrator has already ruled that the termination was based
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19-12745 Opinion of the Court 21
on just cause. The answer to that question is “yes,” an employee
can still pursue such a legal action.
In Alexander v. Gardner-Denver Company, 415 U.S. 36, 49
(1974), the Supreme Court rejected an employer’s election-of-rem-
edies argument that an employee has forfeited his right to a judicial
forum for claimed discriminatory discharge when that employee
has first pursued a grievance to final arbitration under the nondis-
crimination clause of a collective bargaining agreement. The Su-
preme Court explained that a grievance is designed to vindicate a
“contractual right” under a CBA, while a lawsuit under Title VII
asserts independent statutory rights accorded by Congress.4 Id. at
49–59. Thus, a union’s acceptance of a collective bargaining agree-
ment provision calling for arbitration of grievances arising from an
alleged contractual breach does not constitute a waiver of the em-
ployee’s right to subsequently file a judicial action asserting a stat-
utory Title VII violation based on the same adverse action that the
grievance arbitrator had deemed to be justified, as “there can be no
prospective waiver of an employee’s rights under Title VII.” Id. at
51.
The next question is whether, as a condition of employ-
ment, the employer can require the union employee to arbitrate
4 “In submitting his grievance to arbitration, an employee seeks to vindicate
his contractual right under a collective-bargaining agreement. By contrast, in
filing a lawsuit under Title VII, an employee asserts independent statutory
rights accorded by Congress.” Alexander, 415 U.S. at 49–50.
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22 Opinion of the Court 19-12745
any such statutory employment claims. Certainly, when a non-un-
ion employee has agreed to arbitrate a statutory discrimination
claim, that waiver of the employee’s right to a judicial forum for
the claim can be enforced unless the statute itself forbids arbitra-
tion. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26–27
(1991) (holding that because Congress has not precluded the waiver
of a judicial forum for ADEA claims, a plaintiff employee’s agree-
ment to arbitrate any controversy arising out of his employment
or termination thereof was enforceable as to the employee’s age
discrimination lawsuit).
When, however, an employee pursuing a statutory employ-
ment discrimination claim was a member of a union at the time of
the alleged discrimination, the question whether that employee can
be required to arbitrate the claim depends on what the collective
bargaining agreement provides. As part of a collective bargaining
agreement, a union can agree that its members be required to ar-
bitrate statutory claims that would otherwise be litigated in a judi-
cial forum. For such a waiver to be enforced, however, the agree-
ment to arbitrate statutory antidiscrimination claims must be “ex-
plicitly stated” in the collective bargaining agreement and the
agreement must “clearly and unmistakably” require the union
member to arbitrate such claims. See 14 Penn Plaza LLC, 556 U.S. at
274.
As noted, Brown was a member of the Union’s bargaining
unit and there was nothing in its collective bargaining agreement
with Anheuser-Busch calling for arbitration of an employee’s Title
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19-12745 Opinion of the Court 23
VII claims filed as a cause of action in federal court. Given the lim-
ited ruling by the Board relying solely on constitutional grounds, it
is not our task to review the contractual merits of Anheuser-
Busch’s motion to compel arbitration. That said, the above Su-
preme Court authority, coupled with the absence of any express
language in the Collective Bargaining Agreement calling for arbi-
tration of statutory claims, would seemingly provide strong sup-
port for Brown’s position that the Dispute Resolution Policy could
not be enforced against him. 5
But rather than advance these particular objections to arbi-
tration in the district court, Brown and the Union chose to pursue
the more indirect route of asking the NLRB to enjoin any efforts
by Anheuser-Busch to enforce the purported arbitration agree-
ment between it and Brown. As noted, the Board declined to re-
solve the unfair labor practice charge against Anheuser-Busch on
5 Indeed, in a somewhat recent Title VII case filed against Anheuser-Busch, a
district court refused to compel arbitration of the Dispute Resolution Policy
as a matter of both contractual interpretation and in reliance on 14 Penn Plaza’s
requirement that a collective bargaining agreement must clearly and unmis-
takably require union members to arbitrate their statutory discrimination
claims in order for a court to require arbitration of those claims. The district
court concluded that Anheuser-Busch met neither test. See Ode v. Anheuser-
Busch, LLC, No. 19-cv-00233, 2020 WL 5405666 (N.D. Ga. Aug. 19, 2020) (Ray,
J.), aff’g Ode v. Anheuser-Busch, LLC, No. 19-cv-00233, 2020 WL 10692080 (N.D.
Ga. Apr. 9, 2020) ( Johnson, Mag. J). The union in that case apparently did not
pursue an unfair labor practice complaint based on Anheuser-Busch’s effort to
enforce its arbitration agreement. And Anheuser-Busch declined to pursue an
appeal of the district court’s refusal to compel arbitration following the jury
trial that resulted in a defense verdict.
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24 Opinion of the Court 19-12745
the merits, instead determining that the First Amendment pre-
cluded it from enjoining Anheuser-Busch’s efforts to compel arbi-
tration even if the arbitration of Brown’s Title VII claims would
violate the NLRA. That being so, the above caselaw regarding the
impact of collective bargaining agreements on arbitration agree-
ments provides context to this dispute, but it cannot resolve the
constitutional question that is before us. We therefore proceed to
analyze judicial and Board precedent addressing the impact of the
First Amendment on the Board’s power to enjoin litigation pursued
by either a union or management.
B. The Bill Johnson’s Standard and Its Exceptions
The First Amendment provides that “Congress shall make
no law . . . abridging the freedom of speech, or . . . the right . . . to
petition the Government for a redress of grievances.” U.S. Const.
amend. I. “The First Amendment right to petition the government
for a redress of grievances includes a right of access to the courts.” 6
6 Brown argues that the Petition Clause does not apply to Anheuser-Busch’s
motion to arbitrate because it is a defensive motion and “arbitration as be-
tween non-governmental parties is a matter of contract, not a procedure pro-
tected by the Petition Clause.” However, none of the parties raised this argu-
ment before the Board. In any event, we see no reason why the Petition
Clause should not apply to Anheuser-Busch’s defensive motion. See Freeman
v. Lasky, Haas & Cohler, 410 F.3d 1180, 1184 (9th Cir. 2005) (“[A]sking a court
to deny one’s opponent’s petition is also a form of petition.”); In re Burlington
N., Inc., 822 F.2d 518, 532 (5th Cir. 1987) (finding with respect to Noerr-Penning-
ton protection of litigation activities, “no reason to apply any different standard
to defending lawsuits than to initiating them”).
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19-12745 Opinion of the Court 25
DeMartini v. Town of Gulf Stream, 942 F.3d 1277, 1288 (11th Cir.
2019) (quoting Bank of Jackson Cnty. v. Cherry, 980 F.2d 1362, 1370
(11th Cir. 1993)). The right to petition the government for a redress
of grievances is “one of the most precious of the liberties safe-
guarded by the Bill of Rights,” BE & K Constr. Co. v. NLRB, 536 U.S.
516, 524 (2002) and is “high in the hierarchy of First Amendment
values.” DeMartini, 942 F.3d at 1288.
One can reasonably assume that the filing of a motion to
compel arbitration will typically be protected as an exercise of the
First Amendment right to petition. But in the context of labor re-
lations law, that right is not absolute. Specifically, this case turns on
whether Anheuser-Busch’s filing of its motion to compel arbitra-
tion constituted “an objective that is illegal under federal law.” Bill
Johnson’s, 461 U.S. at 737 n.5. If so, the NLRB possessed the author-
ity to direct Anheuser-Busch to cease pursuing that motion, not-
withstanding what would otherwise be its right under the First
Amendment’s Petition Clause to utilize that defense in the federal
action brought against it by Brown.
The basis for the Board’s authority to enjoin litigation, and
limitations on that authority, arise from the Supreme Court’s deci-
sion in Bill Johnson’s. In that case, a restaurant owner had filed a
state court tort lawsuit alleging that individuals protesting the fir-
ing of a waitress were engaged in harassing and dangerous picket-
ing outside his establishment, as well as the distribution of a libel-
ous leaflet. Id. at 733–34. In response, the waitress filed an unfair
labor practice charge with the Board claiming that her termination
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26 Opinion of the Court 19-12745
and the lawsuit were done in retaliation for her participation in pro-
tected activities: that is, her efforts to organize a union. Id. at 734–
35. After considering the evidence, the ALJ issued a decision con-
cluding that the owner’s suit lacked a reasonable basis and that it
was filed with the intent to penalize protected activity. Id. at 736,
744. The Board upheld the ALJ decision and ordered the owner to
withdraw his suit. Id. at 737. The Ninth Circuit Court of Appeals
enforced that order. Id.The question before the Supreme Court on certiorari was
whether the NLRB could enjoin as an unfair labor practice “an [on-
going] employer’s lawsuit that the federal law would not bar except
for its allegedly retaliatory motivation.” Id. at 737 n.5. The Court
concluded that the existence of a retaliatory motive, by itself, was
insufficient to permit the NLRB to enjoin the litigation: “The filing
and prosecution of a well-founded lawsuit may not be enjoined . .
. even if it would not have been commenced but for the plaintiff’s
desire to retaliate against the defendant for exercising rights pro-
tected by the [NLRA].” Id. at 743. Instead, Bill Johnson’s established
a general rule that the NLRB can enjoin such a lawsuit only if the
latter both lacked a reasonable basis and was filed with a retaliatory
motive. Id. at 748–49 (“[r]etaliatory motive and lack of reasonable
basis are both essential prerequisites” for enjoining litigation).
Nevertheless, the Court carved out two exceptions to Bill
Johnson’s restriction of the Board’s power to enjoin litigation—or to
state the matter affirmatively, two situations in which the Board can
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19-12745 Opinion of the Court 27
enjoin litigation even if the litigation was not both retaliatory and
baseless. The Court outlined the exceptions in footnote 5:
It should be kept in mind that what is involved here is
an employer’s lawsuit that the federal law would not
bar except for its allegedly retaliatory motivation. We
are not dealing with a suit that is claimed to be beyond
the jurisdiction of the state courts because of federal-
law preemption, or a suit that has an objective that is
illegal under federal law. Petitioner concedes that the
Board may enjoin these latter types of suits. Nor
could it be successfully argued otherwise . . . .
Id. at 737 n.5 (emphasis added and internal citations omitted).
Translating the above, even if a lawsuit is not both baseless and filed
with a retaliatory motive—which would typically mean that it
could not be enjoined—it may still be enjoined (1) if it is a state suit
that is preempted by federal law or (2) if it is a suit that has an ob-
jective that is illegal under federal law.
In the present case, there seems to be no serious contention
that Anheuser-Busch filed its district court motion to compel out
of any retaliatory motive. Like many employers, it simply prefers
arbitration of Title VII claims over litigation in a judicial forum.7
7 Whether the motion to compel arbitration is baseless is another question.
Cf. DeMartini, 942 F.3d at 1300–01, 1304 (probable cause to initiate a civil law-
suit requires “no more than a reasonable belief that there is a chance that a
claim may be held valid upon adjudication,” and the presence of such probable
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28 Opinion of the Court 19-12745
Instead, the issue on appeal is whether Anheuser-Busch’s motion
to compel arbitration was filed with “an objective that is illegal un-
der federal law,” and, if it was, the Board should have then directed
Anheuser-Busch to cease its litigation of that motion. Id. As to this
question, the Board concluded that the mere filing by an employer
of a motion to arbitrate an employee’s statutory discrimination
claim does not meet the above standard. That is, the Board major-
ity reasoned, there is nothing inherently illegal about arbitration
agreements, as a general matter, and certainly nothing facially ille-
gal about the particular arbitration agreement Anheuser-Busch
was attempting to enforce in response to Brown’s federal Title VII
suit. Thus, the Board concluded, absent some other illegal under-
lying act, an employer’s efforts to enforce such an agreement in the
court where it has been sued by a purported party to that agree-
ment does not constitute an objective that is illegal under federal
law, and it therefore cannot give rise to an unfair labor practice.
As explained below, the Board’s reasoning is at odds with its
own precedent, as well as that of federal courts that have been
called on to apply the Bill Johnson’s illegal-objective exception.
cause will generally defeat, as a matter of law, a § 1983 First Amendment re-
taliation claim based on the civil suit). But even assuming that Anheuser-
Busch’s motion was baseless, this would not necessarily defeat application of
the general Bill Johnson’s rule disallowing an injunction of the litigation be-
cause the latter must be both baseless and filed with a retaliatory motive; and,
as noted in text, there appears to be no basis for inferring a retaliatory motive
on Anheuser-Busch’s part.
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19-12745 Opinion of the Court 29
C. Application of Bill Johnson’s “Illegal Objective”
Standard by Federal Courts and the NLRB
On occasion, federal courts have been called upon to deter-
mine whether litigation-type activity by unions or management—
that is, the filing of grievances, a request for arbitration before the
NLRB, or the filing of lawsuits or motions in a judicial forum—
constitutes litigation that has an objective that is illegal under fed-
eral law, meaning the litigation would lose protection under the
Petition Clause and consequently the NLRB would be empowered
to direct the filing party to cease that litigation.
In Truck Drivers, Oil Drivers, Filling Station & Platform Workers’
Union Local 705 v. NLRB (Emery Air Freight), 820 F.2d 448 (D.C. Cir.
1987), the union had filed a grievance with the NLRB asking it to
enforce a provision of the collective bargaining agreement that it
argued required the employer to cease doing business with a sub-
contractor that the union had tangled with in an unrelated labor
matter. See id. at 451. Concluding that the union filed the grievance
with the motivation to improperly exert pressure on the employer
to boycott a subcontractor who was not represented by the union,
in violation of section 8(b)(4)(ii)(B), the Board ruled that the griev-
ance was filed with an objective that was illegal under federal law.
Id. Accordingly, per Bill Johnson’s, the Board concluded that the un-
ion had thereby committed an unfair labor practice. Id.The D.C. Circuit opinion, authored by Judge Silberman,
agreed that the grievance may well have run afoul of Bill Johnson’s
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30 Opinion of the Court 19-12745
unlawful objective provision, but it clarified the analysis that should
be used in deciding this question. See id. at 452. Specifically, the
court noted that it was irrelevant whether or not the union’s moti-
vation was benign. Id. Instead, the focus had to be on whether the
relief it was seeking was a lawful one. Id. And for the grievance to
have had an illegal objective, the collective bargaining agreement
provision that it sought to enforce must itself have been illegal. Id.Thus, the proper inquiry was whether the union’s interpretation of
the provision in question would run afoul of the NLRA should that
interpretation be adopted by the body deciding the merits of the
grievance. Id. Moreover, an interpretation that would give rise to
an illegal, “hot cargo” agreement would certainly violate Section
8(e) of the Act and would therefore constitute litigation with an
unlawful objective. Id. The court therefore remanded for the
Board to “explicitly deal with [the union’s] primary argument that
by filing a grievance it was merely seeking enforcement of a lawful
provision of its collective bargaining agreement.” Id. at 453.
The D.C. Circuit confirmed this approach again a few years
later in Local 32B-32J, Service Employees International Union (Service
Employees) v. NLRB, 68 F.3d 490 (D.C. Cir. 1995). There, in another
secondary boycott situation, the union had sought arbitration over
its claim that the employer had breached the collective bargaining
agreement by failing to require a subcontractor to take certain ac-
tions with regard to its own labor force. See id. at 493. With Judge
Silberman again authoring the court’s opinion, the D.C. Circuit
agreed that, like other forms of litigation, a request for arbitration
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19-12745 Opinion of the Court 31
can constitute an unfair labor practice if it has an illegal objective
under federal law. Id. at 495. And to rule that a particular arbitra-
tion request has an illegal objective, the Board must determine that
the particular interpretation being advanced by the party seeking
arbitration would lead to an unlawful result should that interpreta-
tion be accepted. Id. Therefore, in the context of the case before
it, the precise question was whether the interpretation of the con-
tract proposed by the union would violate § 8(e), as a “hot cargo”
agreement—that is, an agreement that the employer would cease
doing business with another person. Id. And the D.C. Circuit
agreed with the Board’s conclusion that, if acceded to, the interpre-
tation posed by the union would violate that provision of the Act.
Id. at 495–96. Accordingly, the court concluded that the Board had
correctly found that the union’s request for arbitration constituted
an unfair labor practice. Id; see also Road Sprinkler Fitters Local Union
No. 669 v. NLRB, No. 17-1159, 2018 WL 3040513, at *4 (D.C. Cir.
June 1, 2018) (court affirmed NLRB’s finding of an unfair labor
practice under section 8(b)(4)(ii) based on the union’s filing of a
lawsuit and grievance against a neutral employee, noting that it did
not matter that the merits of the claim had not previously been
determined as “the interpretation the Union seeks is ‘itself ’ ille-
gal—such as by interjecting contract obligations into employment
relations where they do not apply;” and, accordingly, Bill Johnson’s
footnote 5 applies); Small v. Operative Plasterers’ & Cement Masons’
Int’l Ass’n Local 200, 611 F.3d 483, 492–93 (9th Cir. 2010) (union en-
gaged in unfair labor practice by seeking, in state court, an order
that employer had to assign certain work to its union employees
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32 Opinion of the Court 19-12745
even though the Board had determined that a different union
should be assigned the work under section 10(k); accordingly, a law-
suit seeking to countermand that determination had an unlawful
objective); Chauffeurs, Teamsters and Helpers Local 776 v. NLRB, 973
F.2d 230, 236 (3rd Cir. 1992) (union that sued in district court to
enforce an arbitration award that required employer to recognize it
as the bargaining agent for employees committed an unfair labor
practice in persisting in litigation efforts, as union was pursuing an
action it could not win, given the Board’s earlier rulings, and its
continuing litigation sought an objective that was not lawful).
Finally, in Bill Johnson’s footnote 5 itself, the Supreme Court
offered an example of the type of legal action that could be en-
joined by the NLRB as seeking an illegal objective, stating, “we
have upheld Board orders enjoining unions from prosecuting court
suits for enforcement of fines that could not lawfully be imposed
under the [National Labor Relations] Act.” 461 U.S. at 737 n.5. In
support of that statement, the Court cited two cases: Granite State
Joint Board, Textile Workers Union of America, 187 N.L.R.B. 636, 637
(1970) (Textile Workers I), enforcement denied, 446 F.2d 369 (1st Cir.
1971) (Textile Workers II), rev’d, 409 U.S. 213 (1972) (Textile Workers
III) and Booster Lodge No. 405, Int’l Ass’n of Machinists & Aerospace
Workers v. NLRB, 412 U.S. 84, 85 (1973).
In Textile Workers, the union had fined its former members
for strikebreaking conduct engaged in by them after the latter’s res-
ignations as union members. Thereafter, the union sought judicial
enforcement of these fines in New Hampshire state court, which
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19-12745 Opinion of the Court 33
prompted the filing of an unfair labor practice as a result of this
action. See Textile Workers II, 446 F.2d at 371. The Board ruled that
the union’s filing of this litigation violated Section 8(b)(1)(A) of the
Act. Textile Workers III, 409 U.S. at 215. Section 8(b)(1)(A) makes it
unlawful for a labor organization “to restrain or coerce . . . employ-
ees in the exercise of the rights guaranteed [them] in [Section 7 of
the Act].” 29 U.S.C. § 158(b)(1)(A). One right guaranteed in Sec-
tion 7 of the Act is the right to refuse to undertake union activities.
Id. § 157. Accordingly, the Board found that the union had com-
mitted an unfair labor practice and, to remedy this violation, the
Board ordered that the union cease and desist from seeking judicial
enforcement of fines against these former union members. Textile
Workers I, 187 N.L.R.B. at 637. The Court of Appeals denied en-
forcement of the Board’s decision concluding that “no federal labor
policy would be overridden by judicial enforcement of union fines
in the context of this case” because it interpreted the Act to permit
employees to waive their right to refuse to undertake union activi-
ties and the employees had done so by previously voting to levy
fines against anyone aiding or abetting the company during the
strike. Textile Workers II, 446 F.2d at 374.
The Supreme Court reversed, agreeing with the Board that
the union’s imposition of a fine against former members violated
those members’ rights, as protected by the NLRA, and that the un-
ion had, by seeking enforcement of those fines in court, committed
an unfair labor practice. Textile Workers III, 409 U.S. at 217–18. In
short, the Court concluded that the Board could properly enjoin a
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34 Opinion of the Court 19-12745
lawsuit filed to enforce a remedy that was unlawful under the
NLRA. In the parlance of Bill Johnson’s, the union’s suit to enforce
the strikebreaking fine against former union members had the ille-
gal objective of restraining those former members from exercising
their statutory right to refuse to undertake union activities. That
being so, the Board could enjoin the suit seeking to achieve a result
that contravened the NLRA.
As noted, the Supreme Court also cited Booster Lodge as an
example of a suit that could be enjoined as seeking an illegal objec-
tive. As in Textile Workers, the Board had held that a union violated
Section 8(b)(1)(A) of the Act by fining employees who had resigned
from the union before returning to work during a strike, and ac-
cordingly the Board ordered the union to cease its litigation seeking
court enforcement of these fines. See Booster Lodge, 412 U.S. at 87.
The Court of Appeals affirmed the Board decision. See id. As with
Textile Workers, the Supreme Court agreed that the Board decision
correctly concluded that the union had engaged in an unfair labor
practice by initiating law suits to collect fines against former union
members because success on such claims would violate the NLRA.
Id. at 89–90.
In short, in the context of litigation implicating labor law,
federal courts have followed the directive of the Supreme Court in
concluding that the filing of litigation—be it a lawsuit before a ju-
dicial forum or a grievance or request for arbitration before the
NLRB—can be enjoined by the NLRB when the object of that liti-
gation is unlawful. And to determine whether the standard has
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19-12745 Opinion of the Court 35
been satisfied, these courts have looked to see whether the ruling
that the litigant seeks before a court or the Board is one that, if
granted by the decisionmaker, would violate the NLRA. We adopt
and follow that same principle in deciding this case.
Yet, the Board here made no inquiry whether compelled ar-
bitration in this case would violate the NLRA. Instead, as noted,
the Board concluded that to trigger the illegal-objective ground for
enjoining litigation, there must be some additional “underlying
act” beyond the filing of the particular litigation in question. Un-
fortunately, the Board offered no hint as to what such an act might
possibly be. Further, leaving aside the absence of any federal judi-
cial authority in support of this “underlying act” gloss that the
Board has placed on the Bill Johnson’s footnote 5 provision, it is
seemingly a novel approach within the Board’s own precedent. In-
deed, we are aware of no Board decision prior to this case that has
shown any reluctance to enjoin 8 litigation to enforce a contract if
enforcement in the manner advocated would violate the Act.
For example, in Long Elevator, the Board found the union to
have engaged in an unfair labor practice when it filed a grievance
seeking the Board’s endorsement of the union’s particular interpre-
tation of the collective bargaining agreement. Int’l Union of
8 We recognize that the Board lacks power to enjoin conduct in the same
sense that a court does, but we use the term “enjoin” as shorthand for the
Board’s directive that a party cease and desist from particular litigation activ-
ity.
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36 Opinion of the Court 19-12745
Elevator Constructors (Long Elevator), 289 N.L.R.B. 1095, 1095–96
(1988), enforced, NLRB v. Int’l Union of Elevator Constructors, 902 F.2d
1297, 1308 (8th Cir. 1990). Although acknowledging the general
rule articulated in Bill Johnson’s that would prohibit the Board from
enjoining, as an unfair labor practice, a lawsuit that was not both
baseless and retaliatory, the Board also noted the exception to this
general rule when the litigation in question has an objective that is
illegal under federal law. Id. And because the union’s interpreta-
tion of the agreement, if accepted, would violate federal labor law,
the Board directed the union to cease and desist from the particular
litigation at issue. Id.The Board later recognized Long Elevator as illustrating a
“category of cases which do fit within the footnote 5 exception” of
Bill Johnson’s when the Board adopted the ALJ’s decision in Regional
Construction Corporation, 333 N.L.R.B. 313, 319 (2001). That deci-
sion stated that when “the underlying contract is either facially il-
legal or would be illegal as enforced, a lawsuit or grievance seeking
to enforce such an illegal contract provision would itself be illegal
under the footnote 5 exception of Bill Johnson’s.” Id. (emphasis
added).
Likewise, in Road Sprinkler, which is the D.C. Circuit case
cited above, the NLRB had adopted an ALJ’s order enjoining a un-
ion’s grievance and lawsuit to enforce its interpretation of a collec-
tive bargaining agreement. Road Sprinkler Fitters Loc. Union 669, 365
N.L.R.B. No. 83, 2017 WL 2274720, at *1 (May 23, 2017). Respond-
ing to the union’s argument that its grievance and lawsuit should
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19-12745 Opinion of the Court 37
not be enjoined because they were arguably meritorious, the order
noted that even if the union’s reading of the agreement was cor-
rect, a lawsuit or grievance with an illegal object is not protected
by the Petition Clause, per the Supreme Court’s Bill Johnson’s and
the Board’s Long decision. Id. at *3. And the order further found
that the interpretation of the agreement advocated by the union
would render that agreement violative of a provision of the NLRA
(Section 8(e)), and hence unlawful: “Use of the grievance proce-
dure and the court system in this manner constitute unlawful
means [in violation of a provision of the NLRA].” Id. Notably,
there is no language in the order adopted by the Road Sprinkler
Board indicating that some additional illegal underlying act—be-
yond the litigation itself that seeks to secure an interpretation of
the agreement that would violate the NLRA—would be necessary
before one could describe the litigation as having an illegal objec-
tive.
In short, the above caselaw establishes that a lawsuit’s at-
tempt to enforce a contract in a manner that would violate the
NLRA if the lawsuit were successful constitutes litigation that has
an illegal objective and that may therefore be enjoined, even if the
litigation is not both retaliatory and baseless. As noted, we are
aware of no Board decision prior to the present case that has devi-
ated from this principle.
D. We Reject The Board’s Narrowing of the Standard
Governing Bill Jackson’s Footnote 5 Provision
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38 Opinion of the Court 19-12745
As discussed above, in the context of litigation implicating
labor law, the Supreme Court, other federal courts, and the NLRB,
have concluded that the filing of litigation—be it a lawsuit before a
judicial forum or a grievance or request for arbitration before the
NLRB—can be enjoined by the NLRB when the object of that liti-
gation is unlawful. And to determine whether this standard has
been satisfied, these bodies have looked to see whether the ruling
that the litigant seeks before a court or the Board is one that, if
granted by the decisionmaker, would violate the NLRA. Yet, the
Board here made no inquiry whether compelled arbitration of
Brown’s Title VII claims would violate the NLRA. Instead of uti-
lizing its labor law expertise to answer that question, the Board
took it upon itself to add a gloss that greatly narrowed—if not evis-
cerated—what had been understood to be Bill Johnson’s illegal-ob-
jective principle.
On that score, the Board concluded that because a litigant’s
filing of a motion to compel arbitration is not inherently unlawful,
the mere filing of such a motion by Anheuser-Busch could not by
itself constitute an illegal objective under Bill Johnson’s. That the
ultimate object of that motion to compel arbitration may well have
violated the NLRA did not alter the Board’s thinking. According
to the Board, neither a motion to compel arbitration nor the par-
ticular arbitration agreement at issue here was facially invalid; after
all litigants regularly file such motions and the Dispute Resolution
Policy looked fine on its face. That being so, the Board concluded,
the filing of a motion to compel enforcement of an arbitration
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19-12745 Opinion of the Court 39
agreement would not, by itself, be sufficient to trigger the Bill John-
son’s illegal-objective ground and thereby permit the Board to en-
join the particular litigation. See Anheuser-Busch, LLC, 367 N.L.R.B.
No. 132, 2019 WL 2232899, at *4–5 (May 22, 2019).
Accordingly, the Board reasoned, there must be some addi-
tional illegal “underlying act” beyond the filing of the particular lit-
igation in question, albeit it offered no hint what such an act might
be. See id. And a hint would have been helpful as we cannot envi-
sion a realistic example where the filing of a motion to enforce a
contractual agreement will be accompanied by an additional illegal
underlying act. For sure, we can safely assume that a motion to
enforce a murder-for-hire contract or any agreement whose en-
forcement would itself constitute a crime would be a motion that
would not get very far in any jurisdiction. But absent such far-out
hypotheticals that would likely never arise in NLRB disputes, the
logical import of the Board’s reasoning is to conclude that all types
of litigation must be allowed to go forward, even if the relief
sought would violate the NLRA. After all, there is no meaningful
distinction between the motion to compel arbitration here based
on a purported contractual agreement between Brown and An-
heuser-Busch and the efforts to enforce a union or management’s
interpretation of a particular contract in the cases discussed above.
Brown says that if Anheuser-Busch succeeds in his litigation to en-
force the Dispute Resolution Policy, this outcome would violate the
NLRA; likewise, the litigants in the above-cited cases made the
same argument when seeking to enjoin their adversaries’ litigation
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40 Opinion of the Court 19-12745
to enforce a particular contractual agreement. Yet, in contrast with
the Board’s approach here, those litigants obtained from the NLRB
an injunction of the particular litigation based solely on their show-
ing that victory by the litigation’s proponent would result in a vio-
lation of the NLRA.
That is, in the two cases the Supreme Court cited in Bill John-
son’s footnote 5 as examples of litigation with an unlawful objec-
tive—Textile Workers and Booster Lodge—the union had filed suit in
court to enforce fines that it had levied on former members. There,
the Supreme Court had upheld the Board’s determination that, be-
cause the fines were illegal under the NLRA, the effort to enforce
them in court constituted an unfair labor practice that could
properly be enjoined. And it was these two cases that the Supreme
Court cited in Bill Johnson’s as an example of litigation with an ille-
gal objective that could be enjoined by the NLRB, notwithstanding
the Petition Clause of the First Amendment. Bill Johnson’s said
nothing about the need for any additional underlying illegal act; the
litigation itself was sufficient to meet the illegal objective because
success in the litigation would give rise to a remedy that violated
the NLRA. For these purposes, we find no meaningful distinction
between the Board’s ability to enjoin the prosecution of a lawsuit
in Textile Workers and Booster Lodge and its power to require An-
heuser-Busch to cease its prosecution of a motion to compel arbi-
tration of Brown’s statutory claims upon a finding by the Board
that the granting of Anheuser-Busch’s requested relief would vio-
late the NLRA.
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19-12745 Opinion of the Court 41
Similarly, when reviewing the Board’s finding that a union
had committed an unfair labor practice in requesting arbitration
seeking endorsement of the union’s interpretation of a provision
of its collective bargaining agreement with the employer, the D.C.
Circuit in Emery Air Freight and Service Employees held that to deter-
mine whether Bill Johnson’s illegal-objective exception applied to
bar litigation that would otherwise be protected by the Petition
Clause, one had to determine whether the litigant’s interpretation
of the contract—if acceded to by the Board—would lead to a result
that was unlawful under the NLRA. There was no indication by
the D.C. Circuit that the litigant had to engage in some additional
“underlying” unlawful act beyond the filing of litigation that
sought a result at odds with the NLRA.
Finally, in Long Elevator, the Board took the same approach
as the above- cited cases, looking only to the question whether the
contract interpretation advanced by the litigant union would vio-
late federal labor law should the litigant be successful in the litiga-
tion. Again, the Board offered no suggestion that some additional
underlying unlawful act would be required before Bill Johnson’s
footnote 5 provision could be applied.
Thus, there is no indication in prior judicial or Board deci-
sions that to run afoul of the illegal objective prohibition, a litigant
would have to engage in some independent, unlawful “underlying
act” in addition to the filing of litigation whose end goal would
constitute a violation of the NLRA. Notably, Bill Johnson’s never
indicated such a prerequisite or used the phrase “underlying act.”
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42 Opinion of the Court 19-12745
The absence of any such requirement prompts the question how
the Board here arrived at its new standard. The Board’s majority
opinion indicates that the requirement derives from a sentence in
Regional Construction, an NLRB decision which the Board charac-
terized as establishing that “in order to have [an] illegal objective,
respondent’s motion ‘has to have involved a matter . . . which if
granted would commit the court to countenance an[] underlying
act by the Respondent which would be a violation of some federal
law.’” Anheuser-Busch, 367 N.L.R.B. No. 132, 2019 WL 2232899, at
*4 (quoting Regional Construction Corp., 333 N.L.R.B. at 313, 320
(2001)) (emphasis added).
It is true that the Regional Construction opinion used the
phrase “underlying act” in summarizing its understanding of the
Supreme Court’s directive in footnote 5 of Bill Johnson’s.9 Our own
reading of Regional Construction, however, does not support the in-
terpretation that the Board gives to this phrase. In Regional Con-
struction, an employer had filed suit in state court alleging tortious
conduct by the union in blocking ingress and egress to construction
site entrances. The state court agreed and issued an order directing
the union to cease those activities and abide by specified picketing
sites. No one argued that the employer had acted wrongly in
9 The full quotation is as follows: “In order to fit within the exception of
footnote 5 of Bill Johnson’s, the motion to amend the previous court orders has
to have involved a matter which is either preempted or which if granted would
commit the court to countenance [an] underlying act by the [employer] which
would be a violation of some federal law.” Regional Construction Corp., 333
N.L.R.B. at 320.
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19-12745 Opinion of the Court 43
violation of the NLRA in pursuing this litigation. Later, the em-
ployer sought an amendment of the order to address changed cir-
cumstances with the entryways. At this point, the union and the
NLRB General Counsel cried foul, alleging that the union was en-
titled to engage in lawful picketing at some of the entrances iden-
tified in the employer’s amended motion; accordingly, the General
Counsel filed an unfair labor practice complaint against the em-
ployer. The state court judge determined that the employer’s
claims were preempted by federal law, and two days after the Gen-
eral Counsel had filed the unfair labor practice charge against the
employer, the judge therefore dismissed the amended motion. See
Regional Construction Corp., 333 N.L.R.B. at 313–16.
An ALJ subsequently held a hearing on the unfair practice
charge and issued an order that was subsequently adopted by the
Board. See id. at 313–20. In considering whether the employer had
committed an unfair labor practice by pursuing the amended mo-
tion, the ALJ stated that the only relevant part of the Bill Johnson’s
footnote 5 provision authorizing intervention by the Board in this
state court litigation was that part recognizing preemption as a
ground for doing so, and the ALJ found that the employer’s
amended state court motion was preempted by federal law. Id. at
320.
Nevertheless, the Board in this case seized on the way in
which the Regional Construction opinion described Bill Johnson’s foot-
note 5 exception relating to an illegal objective. As noted above,
the ALJ had indicated that for the illegal-objective exception in
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44 Opinion of the Court 19-12745
footnote 5 of Bill Johnson’s to have applied, the motion before the
state court would have had to involve a matter that, if granted,
would commit the court to countenance an underlying act that
would violate federal law. Applying this sentence to the present
case, it means that the motion to compel arbitration, if granted,
would result in a violation of federal law: which is exactly what the
Union is arguing. The arbitration motion is the matter; arbitration
itself is the underlying act.
But this isolated sentence is not the only statement the Re-
gional Construction opinion made concerning the illegal-objective
standard. Prior to this summary sentence, the Regional Construction
decision acknowledged the existence of a line of NLRB cases that
had held that a lawsuit or grievance seeking to enforce a contract
provision that was “either facially illegal or would be illegal as en-
forced” would constitute litigation that “would itself be illegal un-
der the footnote 5 exception of Bill Johnson’s.” Id. at 319 (emphasis
added). That is precisely the Union’s position in this case: that ar-
bitration pursuant to the contract that Anheuser-Busch was at-
tempting to enforce in court would violate the NLRA.
And significantly, when discussing in more detail the cate-
gory of cases “where the underlying acts constitute unfair labor
practices and the lawsuit is simply an attempt to enforce the under-
lying act,” the Regional Construction decision actually cited Long Ele-
vator as its example of a case illustrating this category. Id. The de-
cision described Long Elevator as holding that litigation seeking to
enforce a contract provision “predicated on a reading of the
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19-12745 Opinion of the Court 45
collective-bargaining agreement that, if successful, would have
[been illegal under the NLRA]” would be illegal under Bill Johnson’s
footnote 5. Id. Again, Long Elevator, cited favorably in Regional Con-
struction, disfavors the Board’s rationale in this case.
Given all the above, we do not read Regional Construction to
have articulated a new standard for gauging the existence of an il-
legal objective. Indeed, it seems quite a stretch for the Board here,
based on a strained—and we think incorrect—parsing of Regional
Construction’s casual phrasing, to proclaim that an underlying act in
addition to litigation seeking an objective is now an “indispensa-
ble” 10 prerequisite to application of the Bill Johnson’s footnote 5.
Thus, Regional Construction does not support the Board’s conclu-
sion that an unlawful underlying act in addition to the challenged
litigation must be present before the illegal-objective provision in
Bill Johnson’s footnote 5 can be satisfied.
Moreover, implicit in the Board’s articulation of this newly-
discovered requirement is its own disagreement with Bill Johnson’s
footnote 5. In the Board’s own words:
But it cannot be the case that the “illegal objective”
exception applies without an underlying unlawful act.
Otherwise, the “illegal objective” exception would ap-
ply whenever the litigation act itself—e.g., the filing
10 According to the Board’s majority opinion in the present case, “[t]he ‘un-
derlying act’ requirement is indeed legally significant. In fact, it is indispensa-
ble.” Anheuser-Busch, 367 N.L.R.B. No. 132, 2019 WL 2232899, at *5.
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46 Opinion of the Court 19-12745
of a lawsuit or, as here, of a defense motion—could
be condemned as an unfair labor practice, absent the
protection afforded by the Petition Clause. And if
that were the case, it would not matter that the law-
suit or motion was reasonably based, and it would not
matter that the lawsuit or motion was not impermis-
sibly motivated. It could still be condemned as an un-
fair labor practice under the “illegal objective” excep-
tion, which, on this view, would swallow the rule of
Bill Johnson’s and turn the Petition Clause of the First
Amendment into an empty promise. That is the po-
sition the dissent embraces.
Anheuser-Busch, 367 N.L.R.B. No. 132, 2019 WL 2232899, at *5 (em-
phasis added).
In short, the Board in the present case complains that the
Union’s interpretation of Bill Johnson’s footnote 5 illegal-objective
exception would lessen the First Amendment’s protection against
NLRB interference in litigation that Bill Johnson’s text would other-
wise offer to the entity pursuing that litigation had there been no
footnote 5. Well, yes, that’s obviously true. Exceptions to a rule
tend to restrict the breadth of that rule. But that was obviously the
Supreme Court’s purpose, else it would not have included the foot-
note in the opinion. In Bill Johnson’s, the Supreme Court an-
nounced the principle to be applied in a case in which the ground
prompting the Board’s injunction of pending litigation was the re-
taliatory motive of the proponent of the litigation. When that is
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19-12745 Opinion of the Court 47
the case, the Court held, the Board can enjoin the litigation only
when the particular litigation is both baseless and motivated by the
desire to retaliate: “The filing and prosecution of a well-founded
lawsuit may not be enjoined as an unfair labor practice, even if it
would not have been commenced but for the plaintiff’s desire to
retaliate against the defendant for exercising rights protected by the
Act.” Bill Johnson’s, 461 U.S. at 743.
But in footnote 5, the Court made clear that this standard
did not apply in situations where the retaliatory motivation of the
litigant was not the basis for the Board’s injunction. Specifically,
said the Court, “It should be kept in mind that what is involved here
is an employer’s lawsuit that the federal law would not bar except
for its allegedly retaliatory motivation. We are not dealing with a
suit . . . that has an objective that is illegal under federal law. Peti-
tioner concedes that the Board may enjoin these latter types of
suits.” Id. at 737 n.5.
Certainly, the right to petition under the First Amendment
would have been more strongly protected had the Supreme Court
made the rule it announced in text applicable to all situations in
which the Board is asked to enjoin litigation by an employer or a
union. Had the Court done so, the NLRB would be empowered to
enjoin pending litigation only when that litigation was both base-
less and prompted by a retaliatory motive; whether or not the liti-
gation sought an unlawful objective would be irrelevant. But that
is not what the Court did, and it is the Supreme Court itself that
must alter footnote 5 should it someday determine that the “illegal
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48 Opinion of the Court 19-12745
objective” exception strikes the wrong balance between the First
Amendment Right to Petition and deference to the NLRB’s power
to enforce the NLRA.
Further, even though the Board majority’s real disagreement
appears to be with the unlawful-objective exception itself, the ma-
jority, like the parties, nonetheless acknowledges that when the ob-
ject of the litigation at issue seeks an unlawful objective, the Board
can enjoin it. See Anheuser-Busch, 367 N.L.R.B. No. 132, 2019 WL
2232899, at *3, *4 n.11. This is a concession that the Board was
compelled to make as it has consistently acknowledged the contin-
uing applicability of the unlawful-objective standard when deter-
mining whether to enjoin particular litigation as an unfair labor
practice. See, e.g., Road Sprinkler Fitters Local Union 669, 365 N.L.R.B.
No. 83, 2017 WL 2274720, at *3; Operative Plasterers & Cement Ma-
sons’ Int’l Ass’n Local 200 (Standard Drywall), 357 N.L.R.B. 1921, 1923
n.11, 1924 (2011), enforced, 547 F. App’x 809 (9th Cir. 2013); Dilling
Mech. Contractors, Inc., 357 N.L.R.B. 544, 546 (2011); Mfrs. Wood-
working Ass’n of Greater New York, Inc., 345 N.L.R.B. 538, 540 n.7
(2005).
That being so, there must be some type of litigation for
which the standard would apply. Yet, the Board’s gloss on this
standard—requiring an additional unlawful underlying act in addi-
tion to the litigation itself—appears to create an empty set. As
noted, we are unclear what example the Board might proffer as an
example of litigation that would meet its new standard. In short,
we conclude that the Board erred when it injected this new
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19-12745 Opinion of the Court 49
“underlying act” requirement into the inquiry whether Anheuser-
Busch’s motion to compel arbitration constituted litigation with an
unlawful objective. On remand, the Board should instead deter-
mine whether the outcome sought by Anheuser-Busch’s motion—
the compelled arbitration of Brown’s Title VII claims under the
Dispute Resolution Policy—would violate the NLRA. If the Board
decides that the answer to that question is “yes,” it should then or-
der all relief that is appropriate based on Anheuser-Busch’s unlaw-
ful conduct.
III. CONCLUSION
For the reasons explained above, we GRANT the Union’s
petition for review, VACATE the Board’s decision, and REMAND
to the Board, consistent with the directive set out above, to deter-
mine whether Anheuser-Busch’s motion to compel arbitration pur-
suant to the Dispute Resolution Policy may be enjoined as having
an objective that is illegal under federal law.