1. BE & K
A lawsuit against a union does not violate Section 8(a)(1) merely because the employer loses the suit even if the suit is filed for retaliatory motives
Importance of right to petition
Board must show that suit “objectively baseless”
Lack of success does not equal “baselessness”
Unsuccessful suits includes suits that are baseless and suits that aren’t baseless; the “unsuccessful” criterion used by the board may penalize some suits that are not baseless
Court essentially applying Bill Johnson’s standard for ongoing suits a violation of NLRA
Baseless
Retaliatory
See concurring opinion by Breyer

2. Rationale Action and motive necessary Like 8(a)(3) not 8(a)(1)
Court worried about infringing on right of er to petition