In the case of BE & K Construction Company v. National Labor Relations Board et al., 2001, the U.S. Supreme Court ruled in favor of BE & K Construction Co., reversing a decision by the National Labor Relations Board (NLRB). The NLRB had found that BE & K violated federal labor law when it sued unions for damages caused by their protests against its nonunion hiring practices, even though these lawsuits were unsuccessful and later deemed as retaliatory. However, the Supreme Court held that because BE&K's lawsuits were not objectively baseless, they could not be considered an unfair labor practice under federal law unless proven to have been filed with a retaliatory motive. This ruling clarified that filing a lawsuit alone does not constitute an unfair labor practice and emphasized First Amendment rights to petition courts for redress of grievances without fear of violating labor laws.

In the dissenting opinion for BE & K Construction Company v. National Labor Relations Board, Justice Breyer argued that the majority's decision to allow companies to sue unions without fear of violating labor laws could potentially undermine important federal labor policy objectives. He contended that this ruling would encourage frivolous lawsuits aimed at deterring union activity and draining their resources, thereby weakening workers' rights and protections under the law. Furthermore, he disagreed with the majority's interpretation of Bill Johnson’s Restaurants v. NLRB case precedent as allowing such suits even when they are not reasonably based in fact or law - a view which he believed was inconsistent with previous court rulings on this issue.