Petrochem Insulation, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 13, 2000 Decided January 26, 2001

No. 99-1530

Petrochem Insulation, Inc.,
Petitioner

v.

National Labor Relations Board,
Respondent

United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and
Canada, AFL-CIO, Locals 62, et al.,
Intervenor

On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board

Lawrence W. Marquess argued the cause for petitioner.
With him on the briefs was Darin L. Mackender.

 Heather L. MacDougall and Daniel V. Yager were on the
brief of amici curiae LPA, Inc. and Associated Builders and
Contractors, Inc.

Anne Marie Lofaso, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the
brief were Leonard R. Page, General Counsel, Aileen A.
Armstrong, Deputy Associate General Counsel, and David S.
Habenstreit, Supervisory Attorney.

Peter D. Nussbaum argued the cause and filed the brief for
intervenor.

Before: Edwards, Chief Judge, Williams and Tatel,
Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge: The National Labor Relations Board
found that petitioner committed an unfair labor practice by
bringing a RICO suit against unions that opposed construc-
tion and other permits sought by non-union contractors. The
Board ordered petitioner to pay the legal fees the unions
incurred in defending the suit. Because we agree with the
Board that the unions' activities were protected by the Na-
tional Labor Relations Act, and because the Board's finding
that petitioner's lawsuit was both unmeritorious and retaliato-
ry is supported by substantial evidence, we deny the petition
for review and grant the Board's cross-application for en-
forcement.

I

In the 1980's, construction unions in Northern California
began filing environmental objections to zoning and construc-
tion permits sought by non-union developers and contractors.
Among other things, the unions objected to inconsistencies
between construction proposals and regional development
plans, to the failure to prepare required environmental impact
reports, and to use permits for facilities that the unions
predicted would cause surrounding areas to exceed air pollu-
tion limits under the Clean Air Act. An internal union report
explained: "we have seen irresponsible companies build pro-

jects which have caused more pollution than should be per-
mitted. We are now threatened with construction moratori-
ums in many counties in California." Report by Tom Hunter
& Ray Foreman, Participation in the Permit Process 1 (1987)
("Union Report"). Asserting that "the burden of these mora-
toriums falls on the construction worker," id. at 1, the unions
described their goal in the permitting processes as "advocat-
ing regulatory action which will force construction companies
to pay their employees a living wage, including health and
other benefits, and to meet their responsibilities to the com-
munity and the environment." Id. at 2. A San Francisco
newspaper article further explained that to prevent nonunion
contractors from continuing to hire out-of-state workers at
$10-$12 an hour less than prevailing union wages, "the unions
are arguing [to local governments] that the economic rewards
of development are lost when local people aren't hired at the
prevailing wage. Consequently, environmental shortcomings
such as traffic and pollution should weigh heavy [sic] against
such projects being approved, according to the union line of
reasoning." See Bradley Inman, Unions Launch Attack on
State Homebuilders, S.F. Examiner & Chron., May 31, 1987,
at F1.

A non-union California-based corporation, petitioner Petro-
chem Insulation, Inc. installs, repairs, and removes thermal
insulation in construction and maintenance projects. Accord-
ing to Petrochem, several contractors, seeking to avoid union
permit protests, informed Petrochem that it could neither bid
for nor perform subcontract work on their Northern Califor-
nia construction projects. In response, Petrochem filed suit
in the United States District Court for the Northern District
of California, charging that twenty-one named unions, by
filing environmental objections, were delaying and "threaten-
ing to delay" construction projects "unless and until the
project developers and/or general contractors agreed to boy-
cott open-shop contractors such as Petrochem." Compl. at
23, Petrochem Insulation, Inc. v. N. Cal. & N. Nev. Pipe
Trades Council, No. C-90-3628 (N.D. Cal. filed Dec. 20,
1990). According to the complaint, the unions' actions violat-
ed section 8(e) of the National Labor Relations Act. 29

U.S.C. s 158(e). Instead of seeking relief under the NLRA,
however, the complaint claimed that the union permit objec-
tions amounted to criminal extortion under both state and
federal law and charged that the extortion in turn constituted
a predicate act under the Racketeering and Corrupt Organi-
zation Act. 18 U.S.C. ss 1961-1968. Alleging that the un-
ions had injured Petrochem both by preventing it from ob-
taining contracts and by damaging its goodwill and business
reputation, the complaint sought treble damages pursuant to
RICO section 1964(c). 18 U.S.C. s 1964(c).

The district court dismissed the complaint, finding the
RICO claims preempted because the alleged predicate act
rested on a violation of the NLRA. Order Dismissing Compl.
Without Prejudice, Petrochem Insulation, Inc., No.
C-90-3628, at 12 (N.D. Cal. filed Apr. 30, 1991). Petrochem
sought leave to file an amended complaint realleging the same
conduct but claiming this time that the unions had violated
sections 1 and 2 of the Sherman Antitrust Act, 15 U.S.C.
ss 1, 2, in addition to RICO. Petrochem based this RICO
claim on a different provision of the NLRA, 29 U.S.C. s 186,
which prohibits employers from making payments to unions.
Although the district court denied leave to file the amended
complaint, finding it facially inadequate, the court permitted
Petrochem to file a second amended complaint provided that
the company complied with four specific guidelines for plead-
ing antitrust claims. Order Den. Recons. & Den. Leave to
File First Am. Compl., Petrochem Insulation, Inc., No.
C-90-3628, at 2-3 (N.D. Cal. filed July 30, 1991). The court
also instructed Petrochem that should it again allege a RICO
violation, its complaint had to conform to the court's "Stand-
ing Order re: RICO Actions." Id. at 3.

Petrochem filed a second amended complaint, again alleg-
ing RICO and Sherman Act violations. The district court
dismissed, this time with prejudice, finding that the complaint
failed to conform to the court's instructions and was legally
inadequate for several other reasons. Mem. & Order Grant-
ing Defs' Mot. to Dismiss, Petrochem Insulation, Inc., No.
C-90-3628 (N.D. Cal. filed Mar. 9, 1992). The Ninth Circuit
affirmed in an unpublished opinion, and the Supreme Court

denied certiorari. Petrochem Insulation, Inc. v. United
Ass'n of Journeymen & Apprentices of the Plumbing and
Pipe Fitting Indus., 8 F.3d 29 (9th Cir. 1993), cert. denied,
510 U.S. 1191 (1994).

The NLRB General Counsel then filed a complaint alleging
that by bringing a suit "without merit ... to retaliate"
against the unions for engaging in concerted activity protect-
ed by NLRA section 7, Petrochem committed an unfair labor
practice in violation of NLRA section 8(a)(1). 29 U.S.C.
s 158(a)(1). Granting the General Counsel's motion for sum-
mary judgment, the Board found Petrochem's lawsuit not
only without merit but also "motivated by an intent to retali-
ate against the Unions' protected concerted activity on behalf
of its members and other employees." Petrochem Insula-
tion, Inc., 330 N.L.R.B. No. 10, 1999 WL 1065426, at *7 (Nov.
19, 1999). The Board ordered Petrochem to cease filing such
lawsuits or otherwise interfering with employees in the exer-
cise of their section 7 rights. The Board also ordered the
company to reimburse the unions for the legal expenses they
had incurred. Id.

Petrochem petitions for review and the Board, supported
by union intervenors, cross-applies for enforcement. The
company challenges each of the Board's key findings: (1) that
the unions' participation in permit proceedings was protected
by section 7; (2) that Petrochem's suit was meritless; (3) that
the suit was retaliatory; and (4) that attorneys' fees were
warranted. We consider the first of these arguments in
Section II and the others in Section III. We affirm Board
findings "unless they are unsupported by substantial evidence
in the record considered as a whole, or unless the Board
acted arbitrarily or otherwise erred in applying established
law to the facts." Reno Hilton Resorts v. NLRB, 196 F.3d
1275, 1282 (D.C. Cir. 1999) (internal quotations and citations
omitted).

II

We can easily dispose of Petrochem's argument that the
unions' permit objections were unprotected by section 7. In

relevant part, section 7 states: "Employees shall have the
right to self-organization, to form, join, or assist labor organi-
zations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or other mutual
aid or protection." 29 U.S.C. s 157.

Petrochem first argues that unions, as opposed to employ-
ees, enjoy no section 7 rights. In support, it points to the
Supreme Court's statement in Lechmere, Inc. v. NLRB that
"the NLRA confers rights only on employees, not on unions
or their non-employee organizers." 502 U.S. 527, 532 (U.S.
1992). As both the Board and union intervenors correctly
respond, however, Lechmere holds only that non-employee
union representatives have no affirmative NLRA right to
trespass on employer property when they could reach the
employees through usual off-site channels. Indeed, Lechmere
goes on to make clear that when employees are inaccessible,
non-employee union representatives enjoy section 7 rights to
enter employer property. See id. at 537. Of course, we face
no question in this case of union access to private property.
Under such circumstances, the Board has held, as it did here,
that it would be a "curious and myopic" reading of the Act's
core provisions "to hold that, although employees are free to
join unions and to work through unions for purposes of 'other
mutual aid or protection,' the conduct of the unions they form
and join for those purposes is not protected by the Act."
BE & K Constr. Co., 329 N.L.R.B. No. 68, 1999 WL 883851,
at *12 (Sept. 30, 1999). We cannot imagine a more reason-
able interpretation of section 7. See Lucile Salter Packard
Children's Hosp. at Stanford v. NLRB, 97 F.3d 583, 592 (D.C.
Cir. 1996) (assuming that unions possess section 7 rights).

Petrochem next argues that even if unions sometimes enjoy
section 7 protection, the Board had no basis for concluding
that the petitioning activity in this case "was clearly protect-
ed." Petrochem Insulation, Inc., 1999 WL 1065426, at *4.
In so concluding, the Board relied on the unions' statement
that they were intervening before state environmental and
other regulatory permit proceedings in order to "force con-

struction companies to pay their employees a living wage,
including health and other benefits." Union Report at 2. In
view of this objective, the Board found the unions engaged in
a form of "area-standards activity"--concerted activity pro-
tected by section 7 because of the "legitimate interest" unions
have in "protecting the employment standards [they have]
successfully negotiated from the unfair competitive advantage
that would be enjoyed by an employer whose labor cost
package was less than those of employers subjected to the
area contract standards." See Petrochem Insulation, Inc.,
1999 WL 1065426, at *4 (internal quotation omitted). If
successful, the Board found, the unions "would not only
expand union job opportunities for current union members
but also would improve their ability to bargain for higher
wages by mitigating employer resistance based on concerns
about being undercut by non-union competitors." Id.

According to Petrochem, no record evidence supports the
Board's finding that the unions were promoting employment
standards they had negotiated in Northern California. In
particular, Petrochem argues that because the unions object-
ed to permits before projects had begun, the Board had no
idea what wages and benefits actually would have been.
Although this is true, we fail to see how the fact that
construction had not yet started has anything at all to do with
whether, in participating in permitting proceedings, the un-
ions were seeking to protect area standards. Surely nothing
in the NLRA prevents unions from obtaining commitments
from employers about wages and benefits for future jobs.

Citing a 1973 Board decision, Petrochem also argues that
the unions must prove that the terms and conditions of
employment maintained by the employers against whom they
targeted their area standards activity were below those nego-
tiated by the unions. Because the company failed to make
this argument until its reply brief, however, it is not properly
before us. Corson & Gruman Co. v. NLRB, 899 F.2d 47, 50
n.4 (D.C. Cir. 1990) ("We require petitioners and appellants to
raise all of their arguments in the opening brief to prevent
'sandbagging' of appellees and respondents and to provide
opposing counsel the chance to respond."). Even so, Petro-

chem itself supplied the very information it now claims is
missing. The San Francisco newspaper article, see supra at
3, at F1, which Petrochem attached to its answer to the
General Counsel's amended complaint to the Board, reports:
"the prevailing union wage for plumbers is $22.72 per hour.
Hunter [a union official] claims that some contractors are
paying 'out-of-state workers $10-$12 an hour.' "

In its final attempt to convince us that the union permit
challenges were unprotected by section 7, Petrochem points
to NLRA section 8(b)(4)(ii)(B), 29 U.S.C. s 158(b)(4)(ii)(B),
which makes it unlawful for labor organizations to "threaten,
coerce, or restrain" any person engaged in commerce where
"an object thereof" is "forcing or requiring any person ... to
cease doing business with any other person, or forcing or
requiring any other employer to recognize or bargain with a
labor organization as the representative of his employees."
Id. According to the company, the union petitioning activity
violated section 8(b)(4)(ii)(B) because it coerced developers to
cease doing business with Petrochem and other non-union
companies.

The Board rejected this argument, relying on DeBartolo
Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council,
where the Supreme Court interpreted section 8(b)(4)(ii)(B)'s
coercion ban as not barring handbilling that urged consumer
boycotts of secondary employers. Any other interpretation of
section 8(b)(4), the Court warned, would pose "serious ques-
tions ... under the First Amendment." See 485 U.S. 568,
575 (1988). Concluding here that petitioning the government
qualifies as political expression, the Board stated "in order to
avoid the potentially serious First Amendment problems that
would result if the Unions' governmental petitioning were
found to constitute 'coercion' under Section 8(b)(4)(ii)(B), we
shall follow DeBartolo and conclude that such conduct is
lawful and, hence, protected by the Act." 1999 WL 1065426,
at *5. The Board emphasized that it was not deciding
"whether the Unions' petitioning could be found to be coer-
cive for 8(b)(4) purposes if, as [Petrochem] alleges, the Un-
ions had filed, or threatened to file, 'sham' petitions and
meritless environmental objections with a secondary objec-

tive." Id. at *5. Pointing out that the California federal
district court had found that Petrochem failed to identify a
single meritless objection to any construction project, the
Board concluded that all of the petitioning was protected by
the First Amendment and thus not barred by section
8(b)(4)(ii)(B). Again, we cannot imagine a more reasonable
interpretation of the Act. See NLRB v. United Food &
Commercial Workers Union, Local 23, 484 U.S. 112, 123
(1987) (explaining that courts must defer to the NLRB's
"interpretation of the NLRA as long as its interpretation is
rational and consistent with the statute").

III

Having found no basis for upsetting the Board's conclusion
that the permitting activity was protected by section 7, we
turn to Petrochem's arguments that its lawsuit did not violate
section 8(a)(1). 29 USC s 158(a)(1). To constitute an unfair
labor practice, Petrochem's lawsuit must have both lacked
merit and have been brought to retaliate against the unions'
exercise of section 7 rights. See Summitville Tiles, Inc., 300
N.L.R.B. 64, 65 (1990).

Considering the first question--Did the company's lawsuit
lack merit?--the Board relied on Bill Johnson's Restaurants,
Inc. v. NLRB: "If judgment goes against the employer in the
state court ... or his suit is withdrawn or is otherwise shown
to be without merit, ... the Board may then proceed to
adjudicate the ... unfair labor practice case[, t]he employer's
suit having proved unmeritorious...." 461 U.S. 731, 747
(1983). The Supreme Court, in other words, equates failing
in state court with lacking merit, and the Board has found
that reasoning applicable to failure in federal court as well.
See BE & K Construction Company, 1999 WL 883851 at *8
(finding that there is "no reason not to regard the rulings of
the federal courts ... as equally determinative on the ques-
tion of whether the [employer's] federal court lawsuit lacked
merit"). Applying the Bill Johnson's standard here, the
Board found Petrochem's suit meritless because the Califor-

nia federal district court dismissed it and the Ninth Circuit
affirmed. 1999 WL 1065426, at *4.

Petrochem argues that instead of relying on Bill Johnson's,
the Board should have applied the more rigorous standard
used to determine whether a suit is so baseless as to rob a
plaintiff of normal "Noerr-Pennington" antitrust immunity.
See Professional Real Estate Investors, Inc. v. Columbia
Pictures Industries, Inc., 508 U.S. 49, 60-61 (1993) (defining
"sham" litigation as a lawsuit, brought with the intent to
interfere directly with the business of a competitor, that is so
objectively baseless that "no reasonable litigant could realis-
tically expect success on the merits" and that therefore fails
to receive Noerr-Pennington immunity). The company bases
this argument on a sentence from Professional Real Estate
Investors: "[B]y analogy to [the antitrust] sham exception,
we held [in Bill Johnson's] that even an improperly motivated
lawsuit may not be enjoined under the National Labor Rela-
tions Act as an unfair labor practice unless such litigation is
baseless." 508 U.S. at 59 (internal quotations omitted). As
the Board points out, however, see Petrochem Insulation,
Inc., 1999 WL 1065426, at *3, this passage concerns when an
active lawsuit can be "enjoined"; Bill Johnson's establishes a
different standard for determining whether an adjudicated
lawsuit was meritless. Compare Bill Johnson's, 461 U.S. at
744 (finding that baseless litigation can be enjoined as an
unfair labor practice), with id. at 747 ("If judgment goes
against the employer in the state court, however, or if his suit
is withdrawn or is otherwise shown to be without merit, ...
the Board may then proceed to adjudicate the ... unfair
labor practice case."). Under the standard for adjudicated
litigation, like Petrochem's, if the employer lost, the lawsuit is
deemed unmeritorious.

We understand that this sets the bar for sham litigation--
litigation not protected by the First Amendment--lower than
in Noerr-Pennington cases; on proof of retaliation, employer
suits that are better than baseless under Noerr-Pennington
(ones for which "there is any realistic chance that the plain-
tiff's legal theory might be adopted," id. at 747), may evident-
ly be classified as sham litigation after the employer-plaintiff

loses. Perhaps the Supreme Court will one day create a
uniform standard for sham litigation governing both NLRA
and non-NLRA cases (or explain why the First Amendment
protects erring litigants less in the NLRA context than
others), but until that day the language in Bill Johnson's
must control.

This brings us to the second question and the only tricky
issue in this case: Did Petrochem file its lawsuit to retaliate
against the unions for engaging in section 7 protected activi-
ties? Answering affirmatively, the Board relied on three
factors: (1) Petrochem filed the lawsuit "in direct response"
to the unions' participation in the permit proceedings; (2) the
lawsuit had no merit; and (3) Petrochem sought RICO and
antitrust treble damages instead of pursuing only compensa-
tory damages under the NLRA. See 1999 WL 1065426, at *6.

We agree with Petrochem that the first factor cannot
support the Board's retaliatory motive finding. Every law-
suit seeking to recover damages caused by union activity is,
by definition, filed "in direct response" to that activity. Yet
not all meritless suits against unions or employees amount to
unfair labor practices. Otherwise, Bill Johnson's would not
have required the Board to determine whether unmeritorious
lawsuits were filed for retaliatory reasons. Because the
Board's directly-in-response-to factor exists in every case, it
cannot help distinguish those suits that amount to unfair
labor practices from those that do not.

Challenging the second basis for the Board's finding, Petro-
chem argues that considering the loss of its suit as evidence
of retaliatory motive collapses the first prong of the unfair
labor practice analysis (lack of merit) into the second (retalia-
tion). This is true, but also precisely what Bill Johnson's
permits: "The employer's suit having proved unmeritorious,
the Board would be warranted in taking that fact into account
in determining whether the suit had been filed in retaliation
for the exercise of the employees' s 7 rights." 461 U.S. at
747. Calling this language dicta, Petrochem urges us to
ignore it, arguing that it threatens to deter employers from
exercising their First Amendment right to petition the gov-
ernment through litigation. We share this concern, particu-
larly if Bill Johnson's is read literally to mean, for example,

that an employer who files a colorable lawsuit could be guilty
of an unfair labor practice simply because the suit happens to
lose, and the Board, relying on the loss, concludes that the
suit was meritless and therefore retaliatory. We need not
face this issue, however, for although we are bound by Bill
Johnson's, this case does not involve a colorable, or even just
an unsuccessful, lawsuit. The Board found that Petrochem's
suit was utterly meritless:

[Petrochem's] lawsuit was found not just to have lacked
merit--that would be a charitable characterization of its
outcome. The lawsuit's claims did not even get to a jury
... because it was unable to plead a legally cognizable
cause of action, notwithstanding that the District Court
provided ... three opportunities to do so. This degree
of failure undermines [Petrochem's] claim that it filed the
suit to defend its legally protectable interests and dem-
onstrates instead its retaliatory purpose.

1999 WL 1065426, at *6 (internal quotations and citations
omitted). Thus, whatever merit Petrochem's First Amend-
ment argument might have in the abstract, it has no applica-
bility where, as here, the employer's suit was completely
without merit.

Citing a law review article that mentions in one sentence
the possibility of RICO and antitrust suits against unions, see
Stanley J. Brown & Alyse Bass, Corporate Campaigns: Em-
ployer Responses to Labor's New Weapons, 6 Lab. Law. 975,
983 (1990), Petrochem asserts that its suit was novel, not
baseless. "Novel" may well be one way to describe the
company's suit. Novelty, however, is not necessarily inconsis-
tent with meritlessness; indeed, in view of the district court's
total rejection of the suit, we agree with the Board that
describing it as meritless would be "charitable." Not only did
the district court dismiss the company's first two complaints,
but the many reasons it gave for dismissing the second
amended complaint with prejudice demonstrate that, in the
court's view, the suit had absolutely no merit. In particular,
the court gave three independent reasons for dismissing the
RICO claim: (1) Petrochem's theory that the manner in

which the unions collected money to support their petitioning
activity somehow violated NLRA section 186 was not only
contrary to Ninth Circuit precedent but also unsupported by
section 186's text, Mem. and Order Granting Defs' Mot. to
Dismiss, at 5-6; (2) even if the unions' activities did violate
section 186, Petrochem would nonetheless have lacked stand-
ing to challenge such a violation, id. at 8; and (3) the
company failed to comply with the district court's specific
orders for filing RICO claims, id. at 11. The court gave two
reasons for dismissing the Sherman Act section 1 claim: (1)
Petrochem failed to identify the parties to and contents of any
alleged contract, combination, or conspiracy in restraint of
trade, thus violating the specific instructions the court gave
when rejecting the company's first amended complaint, id. at
12; and (2) Petrochem failed to plead an injury to competition
resulting from the alleged contracts, id. at 16. Apparently
unconvinced even by the company's allegations of its own
injuries, the court noted, "[a]t most, [the complaint] alleges
that [Petrochem] could not submit bids to four projects out of
the approximately 93 projects identified in the complaint. It
does not allege that [Petrochem] actually submitted a low bid,
nor that any project awarded [the company] was withdrawn."
Id. at 17. Dismissing Petrochem's Sherman Act section 2
claim, the court found: (1) the company failed to identify the
contractors who allegedly combined with the unions to mo-
nopolize the construction market, id. at 23; and (2) despite
having "premised its monopolization claim upon the theory
that [the unions] engaged in sham petitions and baseless
environmental objections," and having been warned by the
court that it needed to provide factual support for that claim,
Petrochem failed to identify a single meritless objection "or
allege why such objection should be considered meritless,"
id. at 25.

Had Petrochem offered some reason other than the novelty
of its approach to believe that, notwithstanding the district
court's firm rejection of its claims, the suit was nevertheless
not without merit, we would of course have taken it into
consideration. But in the absence of any such explanation
and in view of the reasons the district court gave for dismiss-

ing Petrochem's complaints, we have no basis for questioning
the Board's assessment of the company's litigation.

Petrochem also challenges the Board's third basis for infer-
ring retaliatory motive: the company's effort to obtain treble
damages by trying to convert labor law claims into RICO and
antitrust actions. As the Board saw it, seeking treble dam-
ages undermined Petrochem's claim that it filed suit not to
retaliate, but to "recover the economic losses caused by the
Unions' illegal conduct." Pet'r Br. at 40. The Board ex-
plained:

It was the selection of the RICO and antitrust claims,
with their provisions for treble damages, which under-
scores the [company's] retaliatory intent. [Petrochem]
had available a less drastic means of recovering its
alleged losses; it could have filed suit in Federal district
court under Section 303 of the Act to recover its actual
damages by alleging as unlawful what it now argues was
unprotected conduct, i.e., that the Unions' conduct violat-
ed Section 8(b)(4). Instead, its RICO and antitrust
claims constituted an attempt to obtain three-times its
actual damages. In comparable circumstances where an
employer has sought punitive damages in addition to
alleged actual damages, the Board has inferred retaliato-
ry intent. We draw the same inference here.

1999 WL 1065426, at *6 (citations omitted).

Petrochem argues that the Board should not have drawn
any inferences from its decision to seek a remedy expressly
authorized by federal law. Had this been the sole basis for
the Board's decision, Petrochem's argument might have some
appeal. The record is clear, however, that the Board did not
rely solely on Petrochem's request for treble damages. The
Board specifically stated that "retaliatory motive can be
inferred, in part, from the treble damages [Petrochem]
sought." Id. (emphasis added). Because the Board's princi-
pal finding was that Petrochem's suit was utterly meritless, it
was not improper for the Board to cite the company's decision
to seek treble damages as additional evidence of retaliatory
motive. Cf. Diamond Walnut Growers, Inc. v. NLRB, 53

F.3d 1085, 1089 (9th Cir. 1995) (finding the fact that an
employer sought punitive damages in its suit against a union
to be evidence that the suit was retaliatory); Kline v. Cold-
well Banker & Co., 508 F.2d 226, 235 (9th Cir. 1974) (charac-
terizing antitrust treble damages as punitive).

Given the special deference we owe NLRB findings of
motive, Reno Hilton Resorts, 196 F.3d at 1282 (citing Laro
Maintenance Corp. v. NLRB, 56 F.3d 224, 229 (D.C. Cir.
1995)), we find the lawsuit's complete lack of merit together
with Petrochem's effort to obtain treble damages sufficient to
support the Board's finding of retaliatory motive. Of course,
were the circumstances different--for example, had the suit
not been so meritless--our view might be different. See
NLRB v. International Union of Operating Engineers, Local
520, 15 F.3d 677, 679-80 (7th Cir. 1994) (finding that although
the employer's original lawsuit was ultimately dismissed on
the basis of a privilege and so was deemed meritless under
Bill Johnson's, the suit was not retaliatory because it was not
entirely without merit). But on the facts of this case, we
have no basis for upsetting the Board's determination that
Petrochem filed suit in retaliation for the unions' exercise of
section 7 rights.

Last, Petrochem challenges the requirement that it "reim-
burse the Unions for all legal and other expenses incurred in
defending against [Petrochem's] lawsuit." 1999 WL 1065426
at *7. Section 10(c) of the NLRA authorizes the Board, upon
finding an unfair labor practice, to "take such affirmative
action ... as will effectuate the policies of [the Act]." 29
U.S.C. s 160(c). Not only does the Board have broad discre-
tionary power under this section to fashion remedies that
effectuate the policies of the Act, but the Board's exercise of
its discretion is subject to quite limited judicial review. See
Fibreboard Paper Prod. Corp. v. NLRB, 379 U.S. 203, 216
(1964). We will not disturb a remedy ordered by the Board
"unless it can be shown that the order is a patent attempt to
achieve ends other than those which can fairly be said to
effectuate the policies of the Act." See Va. Elec. & Power Co.
v. NLRB, 319 U.S. 533, 540 (1943).

 Petrochem argues that the fee award violates the "Ameri-
can rule," under which "attorney's fees are not ordinarily
recoverable in the absence of a statute or enforceable con-
tract providing therefor." Fleischmann Distilling Corp. v.
Maier Brewing Co., 386 U.S. 714, 717 (1967). As the Board
correctly explains, however, the fee award in no way conflicts
with the American rule because the award responds not to
the company's loss of its suit, but to the fact that the suit
itself amounted to an "illegal act." See Local 32B-32J, Serv.
Employees Int'l Union v. NLRB, 68 F.3d 490, 496 (D.C. Cir.
1995) (finding that an award of attorneys fees did not violate
the American rule because the litigation that the fees were
incurred in defending against was itself illegal); Gibson
Greetings, Inc. v. NLRB, 53 F.3d 385, 394 (D.C. Cir. 1995)
("The NLRB can award a union the costs and fees it incurs in
defending against an employer's baseless, retaliatory lawsuit
... if it determines that the filing or maintenance of the
lawsuit was an unfair labor practice."). Indeed, Bill John-
son's expressly authorizes the Board to award attorneys' fees
in just such situations: "If [a labor law] violation is found, the
Board may order the employer to reimburse the employees
whom he had wrongfully sued for their attorney's fees and
other expenses." 461 U.S. at 747.

IV

We deny Petrochem's petition for review and grant the
Board's cross-application for enforcement.

So ordered.