The National Labor Relations Act's irrebuttable presumption of
majority support for a certified collective-bargaining agent
becomes rebuttable after one year. According to the National Labor
Relations Board, an employer may rebut the presumption by showing,
inter alia, that it had a "good-faith" doubt, founded on a
sufficient objective basis, of the union's majority support.
Station KKHI, 284 N.L.R.B. 1339. Although the Board has
changed its position over the years as to whether, in determining
the good-faith doubt question, it should apply a presumption that
striker replacements either oppose the union or support it in the
same ratio as the strikers they replaced, the Board presently
follows a no-presumption approach and determines replacements'
union sentiments on a case-by-case basis.
Id. at
1344-1345. Applying this approach in the present case, the Board
concluded that respondent employer's evidence of its striker
replacements' union sentiments was insufficient to rebut the
presumption of the union's majority support. Among other things,
the Board therefore held that respondent had violated the Act by
withdrawing recognition from the union and ordered respondent to
bargain upon the union's request. In refusing to enforce the
Board's order, the Court of Appeals held that the Board must
presume that striker replacements oppose the union, and that,
accordingly, respondent was justified in doubting the union's
majority support.
Held: The Board acted within its discretion in refusing
to adopt a presumption of replacement opposition to the union. Pp.
494 U. S.
786-796.
(a) Since Congress has entrusted the Board with the primary
responsibility for developing and applying national labor policy, a
Board rule is entitled to considerable deference so long as it is
rational and consistent with the Act, even if it represents a
departure from the Board's prior policy.
See, e.g., NLRB v. J.
Weingarten, Inc., 420 U. S. 251,
265-266. Pp.
494 U. S.
786-787.
(b) The Board's refusal to adopt an antiunion presumption is
rational as an empirical matter. Although replacements often may
not favor the incumbent union, the Board reasonably concluded, in
light of its considerable experience in addressing these issues,
that the probability of replacement
Page 494 U. S. 776
opposition is insufficient to justify an antiunion presumption,
since the circumstances surrounding each strike and replacements'
reasons for crossing a picket line may vary greatly. For example, a
replacement who otherwise supports the union and desires its
representation may be forced by economic concerns to work for a
struck employer. He may also want such representation even though
he disagrees with the purpose or strategy of, and refuses to
support, the particular strike. Respondent's contention that the
Board's position is irrational because the interests of strikers
and replacements are diametrically opposed and because unions
inevitably side with strikers is unpersuasive. Unions do not
invariably demand displacement of all replacements, and the extent
to which they do so will depend on the extent of their bargaining
power, which will in turn vary greatly from strike to strike. If
the union's bargaining position is weak, many of the replacements
justifiably may not fear that they will lose their jobs at the end
of the strike, and may still want the union's representation
thereafter. Moreover, even if the interests of strikers and
replacements conflict during the strike, those interests may
converge after job rights have been settled; replacements surely
are capable of looking past the strike in considering whether they
want representation. Thus, the Board's approach is not
irreconcilable with its position in
Service Electric Co.,
281 N.L.R.B. 633, 641, and
Leveld Wholesale, Inc., 218
N.L.R.B. 1344, 1350, that an employer has no duty to bargain with a
striking union over replacements' employment terms. Furthermore,
the Board has not deemed picket line violence or a union's demands
that replacements be terminated irrelevant to its evaluation of
their union sentiments.
Cf. Stormor, Inc., 268 N.L.R.B.
860, 866-867;
IT Services, 263 N.L.R.B. 1183, 1185-1188.
In both
Station KKHI, supra, and this case, the Board
noted that the picket line was peaceful, and in neither case did
the employer present evidence that the union was actively
negotiating for the ouster of replacements. Pp.
494 U. S.
788-793.
(c) In light of the considerable deference accorded the Board's
rules, its refusal to adopt an antiunion presumption is consistent
with the Act's overriding policy of achieving industrial peace. The
Board's approach furthers this policy by promoting stability in the
collective bargaining process. It was reasonable for it to conclude
that the antiunion presumption could allow an employer to eliminate
the union entirely merely by hiring a sufficient number of
replacements and thereby to avoid good-faith bargaining over a
strike settlement. It was also reasonable for the Board to decide
that the antiunion presumption might chill employees' exercise of
their statutory right to engage in concerted activity,
including
Page 494 U. S. 777
the right to strike, by confronting them not only with the
prospect of being permanently replaced, but also with the greater
risk that they would lose their bargaining representative, thereby
diminishing their chance of obtaining reinstatement through a
strike settlement. Pp.
494 U. S.
794-796.
859 F.2d 362 (CA5 1988), reversed and remanded.
MARSHALL, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and BRENNAN, WHITE, and STEVENS, JJ., joined.
REHNQUIST, C.J., filed a concurring opinion,
post, p.
494 U. S. 797.
BLACKMUN, J., filed a dissenting opinion,
post, p.
494 U. S. 798
SCALIA, J., filed a dissenting opinion, in which O'CONNOR and
KENNEDY, JJ., joined,
post, p.
494 U. S.
801.
Justice MARSHALL delivered the opinion of the Court.
This case presents the question whether the National Labor
Relations Board, in evaluating an employer's claim that it had a
reasonable basis for doubting a union's majority support, must
presume that striker replacements oppose the union. We hold that
the Board acted within its discretion in refusing to adopt a
presumption of replacement opposition to the union, and therefore
reverse the judgment of the Court. of Appeals.
I
Upon certification by the NLRB as the exclusive bargaining agent
for a unit of employees, a union enjoys an irrebuttable
Page 494 U. S. 778
presumption of majority support for one year.
Fall River
Dyeing & Finishing Corp. v. NLRB, 482 U. S.
27,
482 U. S. 37
(1987). During that time, an employer's refusal to bargain with the
union is
per se an unfair labor practice under §§ 8(a)(1)
and 8(a)(5) of the National Labor Relations Act, 49 Stat. 452,
as amended, 29 U.S.C. §§ 158(a)(1), 158(a)(5) (1982 ed.).
[
Footnote 1]
See Celanese
Corp. of America, 95 N.L.R.B. 664, 672 (1951); R. Gorman,
Labor Law, Unionization and Collective Bargaining 109 (1976). After
the first year, the presumption continues, but is rebuttable.
Fall River, supra, at
482 U. S. 38.
Under the Board's longstanding approach, an employer may rebut that
presumption by showing that, at the time of the refusal to bargain,
either (1) the union did not in fact enjoy majority support or (2)
the employer had a "good faith" doubt, founded on a sufficient
objective basis, of the union's majority support.
Station
KKHI, 284 N.L.R.B. 1339 (1987),
enf'd, 891 F.2d 230
(CA9 1989). The question presented in this case is whether the
Board must, in determining whether an employer has presented
sufficient objective evidence of a good-faith doubt, presume that
striker replacements oppose the union. [
Footnote 2]
Page 494 U. S. 779
The Board has long presumed that new employees hired in
nonstrike circumstances support the incumbent union in the same
proportion as the employees they replace.
See, e.g., National
Plastic Products Co., 78 N.L.R.B. 699, 706 (1948). The Board's
approach to evaluating the union sentiments of employees hired to
replace strikers, however, has not been so consistent. Initially,
the Board appeared to assume that replacements did not support the
union.
See, e.g., Stoner Rubber Co., 123 N.L.R.B. 1440,
1444 (1959) (stating that it was not "unreasonable [for the
employer] to assume that none of the . . . permanent replacements
were union adherents");
Jackson Mfg. Co., 129 N.L.R.B.
460, 478 (1960) (stating that it was "most improbable" that
replacements desired representation by the strikers' union);
Titan Metal Mfg. Co., 135 N.L.R.B. 196, 215 (1962)
(finding that employer had "good cause to doubt the Union's
majority" because "no evidence that any of the replacements had
authorized the Union to represent them" had been presented);
S
& M Mfg. Co., 172 N.L.R.B. 1008, 1009 (1968) (same).
A 1974 decision,
Peoples Gas System, Inc., 214 N.L.R.B.
944 (1974),
rev'd and remanded on other grounds sub
nom.
Page 494 U. S. 780
Teamsters Local Union 769 v. NLRB, 174 U.S.App.D.C.
310, 316, 532 F.2d 1385, 1391 (1976), signalled a shift in the
Board's approach. The Board recognized that "it is of course
possible that the replacements, who had chosen not to engage in the
strike activity, might nevertheless have favored union
representation." 214 N.L.R.B. at 947. Still, the Board held
that
"it was not unreasonable for [the employer] to infer that the
degree of union support among these employees who had chosen to
ignore a Union-sponsored picket line might well be somewhat weaker
than the support offered by those who had vigorously engaged in
concerted activity on behalf on [sic] Union-sponsored
objectives."
Ibid.
A year later, in
Cutten Supermarket, 220 N.L.R.B. 507
(1975), the Board reversed course completely, stating that striker
replacements, like new employees generally, are presumed to
support the union in the same ratio as the strikers they
replaced.
Id. at 509. The Board's initial adherence to
this new approach, however, was equivocal. In
Arkay Packaging
Corp., 227 N.L.R.B. 397 (1976),
review denied sub nom. New
York Printing Pressmen & Offset Workers Union, No. 51 v.
NLRB, 575 F.2d 1045 (CA2 1978), the Board stated that
"it would be wholly unwarranted and unrealistic to presume as a
matter of law that, when hired, the replacements for the union
employees who had gone out on strike favored representation by the
Unions to the same extent as the strikers."
227 N.L.R.B. at 397-398.
See also Beacon Upholstery
Co., 226 N.L.R.B. 1360, 1368 (1976) (distinguishing
Cutten
Supermarket on the ground that the strikers in
Beacon
Upholstery had been lawfully discharged, so there were no
striking employees in the bargaining unit). Nevertheless, in
Windham Community Memorial Hospital, 230 N.L.R.B. 1070
(1977),
enf'd, 577 F.2d 805 (CA2 1978), the Board
explicitly reaffirmed
Cutten Supermarket, stating that
"[t]he general rule . . . is that new employees, including
striker replacements, are presumed to support the union in the same
ratio as those whom they have replaced."
230 N.L.R.B. at 1070. The Board distinguished
Arkay
Packaging as a "limited exception" to this rule based on "the
unique circumstance that the union had apparently abandoned the
bargaining unit." 230
Page 494 U. S. 781
N.L.R.B. at 1070. Finally, in 1980, the Board reiterated that
the presumption that new employees support the union applies
equally to striker replacements.
Pennco, Inc., 250
N.L.R.B. 716, 717-718 (1980),
enf'd, 684 F.2d 340 (CA6),
cert. denied, 459 U.S. 994 (1982).
In 1987, after several Courts of Appeals rejected the Board's
approach, [
Footnote 3] the
Board determined that no universal generalizations could be made
about replacements' union sentiments that would justify a
presumption either of support for or of opposition to the union.
Station KKHI, 284 N.L. R.B. 1339 (1987). On the one hand,
the Board found that the prounion presumption lacked empirical
foundation because "incumbent unions and strikers sometimes have
shown hostility toward the permanent replacements" and
"replacements are typically aware of the union's primary concern
for the striker's welfare, rather than that of the replacements."
Id. at 1344. On the other hand, the Board found that an
antiunion presumption was "equally unsupportable" factually.
Ibid. The Board observed that a striker replacement
"may be forced to work for financial reasons, or may disapprove
of the strike in question but still desire union representation and
would support other union initiatives."
Ibid. Moreover, the Board found as a matter of policy
that adoption of an antiunion presumption would
"substantially impair the employees' right to strike by adding
to the risk of replacement the risk of loss of the bargaining
representative as soon as replacements equal in number to the
strikers are willing to cross the picket line."
Ibid. See also Pennco, Inc., 250 N.L.R.B. at
717. Accordingly, the Board held that it would not apply any
presumption regarding striker replacements'
Page 494 U. S. 782
union sentiments, but would determine their views on a
case-by-case basis. 284 N.L.R.B. at 1344-1345.
II
We now turn to the Board's application of its
Station
KKHI no-presumption approach in this case. Respondent Curtin
Matheson Scientific, Inc., buys and sells laboratory instruments
and supplies. In 1970, the Board certified Teamsters Local 968,
General Drivers, Warehousemen and Helpers as the collective
bargaining agent for respondent's production and maintenance
employees. On May 21, 1979, the most recent bargaining agreement
between respondent and the Union expired. Respondent made its final
offer for a new agreement on May 25, but the Union rejected that
offer. Respondent then locked out the 27 bargaining-unit employees.
On June 12, respondent renewed its May 25 offer, but the Union
again rejected it. The Union then commenced an economic strike. The
record contains no evidence of any strike-related violence or
threats of violence.
Five employees immediately crossed the picket line and reported
for work. On June 25, while the strike was still in effect,
respondent hired 29 permanent replacement employees to replace the
22 strikers. The Union ended its strike on July 16, offering to
accept unconditionally respondent's May 25 contract offer. On July
20, respondent informed the Union that the May 25 offer was no
longer available. In addition, respondent withdrew recognition from
the Union and refused to bargain further, stating that it doubted
that the Union was supported by a majority of the employees in the
unit. Respondent subsequently refused to provide the Union with
information it had requested concerning the total number of
bargaining unit employees on the payroll and the job classification
and seniority of each employee. As of July 20, the bargaining unit
consisted of 19 strikers, 25 permanent replacements, and the 5
employees who had crossed the picket line at the strike's
inception.
Page 494 U. S. 783
On July 30, the Union filed an unfair labor practice charge with
the Board. Following an investigation, the General Counsel issued a
complaint alleging that respondent's withdrawal of recognition,
refusal to execute a contract embodying the terms of the May 25
offer, and failure to provide the requested information violated §§
8(a)(1) and 8(a)(5) of the NLRA, 29 U.S.C. §§ 158(a)(1), 158(a)(5)
(1982 ed.). In its defense to the charge, respondent claimed that
it had a reasonably based, good faith doubt of the Union's majority
status. The Administrative Law Judge agreed with respondent and
dismissed the complaint. The Board, however, reversed, holding that
respondent lacked sufficient objective basis to doubt the Union's
majority support. 287 N.L.R.B. No. 35 (1987).
First, the Board noted that the crossover of 5 of the original
27 employees did not in itself support an inference that the 5 had
repudiated the Union, because their failure to join the strike may
have "indicate[d] their economic concerns rather than a lack of
support for the union." 287 N.L.R.B. at 352. Second, the Board
found that the resignation from their jobs of two of the original
bargaining unit employees, including the chief shop steward, after
the commencement of the strike did not indicate opposition to the
Union, but merely served to reduce the size of the bargaining unit
as of the date of respondent's withdrawal of recognition.
Ibid. [
Footnote 4]
Third, the Board discounted statements made by six employees to a
representative of respondent during the strike. Although some of
these statements may have indicated rejection
Page 494 U. S. 784
of the Union as the bargaining representative, the Board noted,
others "appear[ed] ambiguous at best."
Id. at 353.
Moreover, the Board stated,
"[e]ven attributing to them the meaning most favorable to the
Respondent, it would merely signify that 6 employees of a total
bargaining unit of approximately 50 did not desire to keep the
Union as the collective bargaining representative."
Ibid. [
Footnote
5]
Finally, regarding respondent's hiring of striker replacements,
the Board stated that, in accordance with the
Station KKHI
approach, it would "not use any presumptions with respect to [the
replacements'] union sentiments," but would instead
"take a case-by-case approach [and] require additional evidence
of a lack of union support on the replacements' part in evaluating
the significance of this factor in the employer's showing of
good-faith doubt."
287 N.L. R.B. at 352. The Board noted that respondent's only
evidence of the replacements' attitudes toward the Union was its
employee relations director's account of a conversation with one of
the replacements. The replacement employee reportedly told her that
he had worked in union and nonunion workplaces and did not see any
need for a union as long as the company treated him
Page 494 U. S. 785
well; in addition, he said that he did not think the Union in
this case represented the employees.
Id. at 351;
see n 4,
supra. The Board did not determine whether this statement
indicated the replacement employee's repudiation of the Union, but
found that the statement was, in any event, an insufficient basis
for "inferring the union sentiments of the replacement employees as
a group." 287 N.L.R.B. at 353.
The Board therefore concluded that "the evidence [was]
insufficient to rebut the presumption of the Union's continuing
majority status."
Ibid. Accordingly, the Board held that
respondent had violated §§ 8(a)(1) and 8(a)(5) by withdrawing
recognition from the Union, failing to furnish the requested
information, and refusing to execute a contract embodying the terms
respondent had offered on May 25, 1979. The Board ordered
respondent to bargain with the Union on request, provide the
requisite information, execute an agreement, and make the
bargaining unit employees whole for whatever losses they had
suffered from respondent's failure to execute a contract.
The Court of Appeals, in a divided opinion, refused to enforce
the Board's order, holding that respondent was justified in
doubting the Union's majority support. 859 F.2d 362 (CA5 1988).
Specifically, the court rejected the Board's decision not to apply
any presumption in evaluating striker replacements' union
sentiments, and endorsed the so-called "Gorman presumption" that
striker replacements oppose the union. [
Footnote 6] We granted certiorari, 492 U.S. 905 (1989), to
resolve
Page 494 U. S. 786
a circuit split on the question whether the Board must presume
that striker replacements oppose the union. [
Footnote 7]
III
A
This Court has emphasized often that the NLRB has the primary
responsibility for developing and applying national labor policy.
See, e.g., Beth Israel Hospital v. NLRB, 437 U.
S. 483,
437 U. S.
500-501 (1978);
NLRB v. Erie Resistor Corp.,
373 U. S. 221,
373 U. S. 236
(1963);
NLRB v. Truck Drivers, 353 U. S.
87,
353 U. S. 96
(1957).
"Because it is to the Board that Congress entrusted the task of
'applying the Act's general prohibitory language in the light of
the infinite combinations of events which might be charged as
violative of its terms,' that body, if it is to accomplish the task
which Congress set for it, necessarily must have authority to
formulate rules to fill the interstices of the broad statutory
provisions."
Beth Israel Hospital, supra, at
437 U. S.
500-501 (quoting
Republic Aviation Corp. v.
NLRB, 324 U. S. 793,
324 U. S. 798
(1945)). This Court therefore has accorded Board rules considerable
deference.
See Fall River Dyeing &
Finishing Corp. v.
Page 494 U. S. 787
NLRB, 482 U. S. 27,
482 U. S. 42
(1987);
NLRB v. Iron Workers, 434 U.
S. 335,
434 U. S. 350
(1978). We will uphold a Board rule as long as it is rational and
consistent with the Act,
Fall River, supra, 482 U.S. at
482 U. S. 42,
even if we would have formulated a different rule had we sat on the
Board,
Charles D. Bonanno Linen Service, Inc. v. NLRB,
454 U. S. 404,
454 U. S. 413,
454 U. S. 418
(1982). Furthermore, a Board rule is entitled to deference even if
it represents a departure from the Board's prior policy.
See
NLRB v. J. Weingarten, Inc., 420 U. S. 251,
420 U. S.
265-266 (1975) ("The use by an administrative agency of
the evolutional approach is particularly fitting. To hold that the
Board's earlier decisions froze the development of this important
aspect of the national labor law would misconceive the nature of
administrative decisionmaking").
Accord, Iron Workers,
supra, 434 U.S. at 3
434 U. S.
51.
B
Before assessing the Board's justification for rejecting the
antiunion presumption, we will make clear precisely how that
presumption would differ in operation from the Board's current
approach. As noted above,
see supra at
494 U. S.
777-778, the starting point for the Board's analysis is
the basic presumption that the union is supported by a majority of
bargaining unit employees. The employer bears the burden of
rebutting that presumption, after the certification year, either by
showing that the union in fact lacks majority support or by
demonstrating a sufficient objective basis for doubting the union's
majority status. Respondent here urges that, in evaluating an
employer's claim of a good faith doubt, the Board must adopt a
second, subsidiary presumption -- that replacement employees oppose
the union. Under this approach, if a majority of employees in the
bargaining unit were striker replacements, the employer would not
need to offer any objective evidence of the employees' union
sentiments to rebut the presumption of the union's continuing
majority status. The presumption of the replacements' opposition to
the union would, in effect, override the presumption of
continuing
Page 494 U. S. 788
majority status. In contrast, under its no-presumption approach,
the Board
"take[s] into account the particular circumstances surrounding
each strike and the hiring of replacements, while retaining the
long-standing requirement that the employer must come forth with
some objective evidence to substantiate his doubt of continuing
majority status."
859 F.2d at 370 (Williams, J., dissenting). [
Footnote 8]
C
We find the Board's no-presumption approach rational as an
empirical matter. Presumptions normally arise when proof of one
fact renders the existence of another fact "so probable that it is
sensible and timesaving to assume the truth of [the inferred] fact
. . . until the adversary disproves
Page 494 U. S. 789
it." E. Cleary, McCormick on Evidence § 343, p. 969 (3d
ed.1984). Although replacements often may not favor the incumbent
union, the Board reasonably concluded, in light of its long
experience in addressing these issues, that replacements may in
some circumstances desire union representation despite their
willingness to cross the picket line. Economic concerns, for
instance, may force a replacement employee to work for a struck
employer even though he otherwise supports the union and wants the
benefits of union representation. In this sense, the replacement
worker is no different from a striker who, feeling the financial
heat of the strike on herself and her family, is forced to abandon
the picket line and go back to work.
Cf. Lyng v. Automobile
Workers, 485 U. S. 360,
485 U. S. 371
(1988) (recognizing that "a striking individual faces an immediate
and often total drop in income during a strike"). In addition, a
replacement, like a nonstriker or a strike crossover, may disagree
with the purpose or strategy of the particular strike and refuse to
support that strike, while still wanting that union's
representation at the bargaining table.
Respondent insists that the interests of strikers and
replacements are diametrically opposed, and that unions inevitably
side with the strikers. For instance, respondent argues, picket
line violence often stems directly from the hiring of replacements.
Furthermore, unions often negotiate with employers for strike
settlements that would return the strikers to their jobs, thereby
displacing some or all of the replacements.
See Belknap, Inc.
v. Hale, 463 U. S. 491,
463 U. S.
513-514 (1983) (BLACKMUN, J., concurring in judgment).
Respondent asserts that replacements, aware of the union's loyalty
to the strikers, most likely would not support the union.
See,
e.g., Leveld Wholesale, Inc., 218 N.L.R.B. 1344, 1350 (1975)
("Strike replacements can reasonably foresee that, if the union is
successful, the strikers will return to work and the strike
replacements will be out of a job"). In a related argument,
respondent contends that the Board's no-presumption
Page 494 U. S. 790
approach is irreconcilable with the Board's decisions holding
that employers have no duty to bargain with a striking union over
replacements' employment terms because the "inherent conflict"
between strikers and replacements renders the union incapable of
"bargain[ing] simultaneously in the best interests of both strikers
and their replacements."
Service Electric Co., 281
N.L.R.B. 633, 641 (1986);
see also Leveld Wholesale,
supra, at 1350.
These arguments do not persuade us that the Board's position is
irrational. Unions do not inevitably demand displacement of all
strike replacements. In
Dold Foods, Inc., 289 N.L.R.B. No.
156 (July 28, 1988), the Board based its refusal to presume that
the replacements opposed the union in part on this ground:
"[U]nions often demand, at least in the first instance, that the
replacements be discharged and the strikers rehired. Frequently, as
in the instant case, the union's position may be modified in the
course of the negotiations on the issues underlying the strike.
Indeed, in the instant case, as the strike wore on, the Union took
a progressively weaker position until . . . it requested only that
the Respondent discharge those replacements (about 32 out of 201
total replacements) who had not yet completed the probationary
period."
Ibid.
The extent to which a union demands displacement of permanent
replacement workers logically will depend on the union's bargaining
power. Under this Court's decision in
NLRB v. Mackay Radio
& Telegraph Co., 304 U. S. 333
(1938), an employer is not required to discharge permanent
replacements at the conclusion of an economic strike to make room
for returning strikers; rather, the employer must only reinstate
strikers as vacancies arise. The strikers' only chance for
immediate reinstatement, then, lies in the union's ability to force
the employer to discharge the replacements as a condition for the
union's ending the strike. Unions' leverage to compel such a strike
settlement will vary greatly from
Page 494 U. S. 791
strike to strike. If, for example, the jobs at issue do not
require highly trained workers and the replacements perform as well
as the strikers did, the employer will have little incentive to
hire back the strikers and fire the replacements; consequently, the
union will have little bargaining power. Consumers' reaction to a
strike will also determine the union's bargaining position. If the
employer's customers have no reluctance to cross the picket line
and deal with the employer, the union will be in a poor position to
bargain for a favorable settlement. Thus, a union's demands will
inevitably turn on the strength of the union's hand in
negotiations. A union with little bargaining leverage is unlikely
to press the employer -- at least not very forcefully or for very
long -- to discharge the replacements and reinstate all the
strikers. Cognizant of the union's weak position, many if not all
of the replacements justifiably may not fear that they will lose
their jobs at the end of the strike. They may still want that
union's representation after the strike, though, despite the
union's lack of bargaining strength during the strike, because of
the union's role in processing grievances, monitoring the
employer's actions, and performing other non-strike roles. Because
the circumstances of each strike and the leverage of each union
will vary greatly, it was not irrational for the Board to reject
the antiunion presumption and adopt a case-by-case approach in
determining replacements' union sentiments. [
Footnote 9]
Page 494 U. S. 792
Moreover, even if the interests of strikers and replacements
conflict
during the strike, those interests may converge
after the strike, once job rights have been resolved.
Thus, while the strike continues, a replacement worker whose job
appears relatively secure might well want the union to continue to
represent the unit regardless of the union's bargaining posture
during the strike. Surely replacement workers are capable of
looking past the strike in considering whether or not they desire
representation by the union. [
Footnote 10] For these reasons, the Board's refusal to
adopt an antiunion presumption is not irreconcilable with its
position in
Service Electric, supra, and
Leveld
Wholesale, supra, regarding an employer's obligation to
bargain with a striking union over replacements' employment
terms.
Furthermore, the Board has not deemed picket line violence or a
union's demand that replacements be terminated
Page 494 U. S. 793
irrelevant to its evaluation of replacements' attitudes toward
the union. The Board's position, rather, is that
"the hiring of permanent replacements who cross a picket line,
in itself, does not support an inference that the
replacements repudiate the union as collective bargaining
representative."
Station KKHI, 284 N.L.R.B. at 1344 (emphasis added). In
both
Station KKHI and this case, the Board noted that the
picket line was peaceful,
id. at 1345;
Curtin Matheson
Scientific, 287 N.L.R.B. at 352; and in neither case did the
employer present evidence that the union was actively negotiating
for ouster of the replacements. To the extent that the Board
regards evidence of these factors relevant to its evaluation of
replacements' union sentiments, then, respondent's contentions ring
hollow.
Cf. Stormor, Inc., 268 N.L.R.B. 860, 866-867
(1984) (concluding that replacements' crossing of picket line in
face of continued violence, together with other evidence, overcame
Board's former presumption that replacements favored the union);
IT Services, 263 N.L.R.B. 1183, 1185-1188 (1982) (holding
that picket line violence and union's adamant demand that
replacements be terminated, together with antiunion statements by
most of replacements, overcame prounion presumption). [
Footnote 11]
In sum, the Board recognized that the circumstances surrounding
each strike and replacements' reasons for crossing a picket line
vary greatly. Even if replacements often do not support the union,
then, it was not irrational for the Board to conclude that the
probability of replacement opposition to the union is insufficient
to justify an antiunion presumption.
Page 494 U. S. 794
D
The Board's refusal to adopt an antiunion presumption is also
consistent with the Act's "overriding policy" of achieving
"
industrial peace.'" Fall River, 482 U.S. at
482 U. S. 38
(quoting Brooks v. NLRB, 348 U. S. 96,
348 U. S. 103
(1954)). [Footnote 12] In
Fall River, the Court held that the presumption of
continuing majority support for a union
"further[s] this policy by 'promot[ing] stability in collective
bargaining relationships, without impairing the free choice of
employees.'"
Ibid. (citation omitted). The Court reasoned that this
presumption
"enable[s] a union to concentrate on obtaining and fairly
administering a collective bargaining agreement without worrying
that, unless it produces immediate results, it will lose majority
support."
Ibid. (citing
Brooks v. NLRB, supra, at
348 U. S. 100).
In addition, this presumption
"remove[s] any temptation on the part of the employer to avoid
good faith bargaining in the hope that, by delaying, it will
undermine the union's support among the employees."
482 U.S. at
482 U. S.
38.
The Board's approach to determining the union views of strike
replacements is directed at this same goal, because it limits
employers' ability to oust a union without adducing any evidence of
the employees' union sentiments and encourages negotiated solutions
to strikes. It was reasonable for the Board to conclude that the
antiunion presumption, in contrast, could allow an employer to
eliminate the union merely by hiring a sufficient number of
replacement employees. That rule thus might encourage the employer
to avoid good faith bargaining over a strike settlement, and
instead to use the strike as a means of removing the union
altogether.
Cf. id. at
482 U. S. 40
("Without the presumptions of majority support . . . , an employer
could use a successor enterprise as a way of getting rid of a labor
contract and of . . . eliminat[ing the union's] continuing
presence"). Restricting an employer's
Page 494 U. S. 795
ability to use a strike as a means of terminating the bargaining
relationship serves the policies of promoting industrial stability
and negotiated settlements.
Cf. NLRB v. Erie Resistor
Corp., 373 U. S. 221,
373 U. S.
233-234 (1963) ("[The Act's] repeated solicitude for the
right to strike is predicated upon the conclusion that a strike
when legitimately employed is an economic weapon which in great
measure implements and supports the principles of the collective
bargaining system").
Furthermore, it was reasonable for the Board to decide that the
antiunion presumption might chill employees' exercise of their
statutory right to engage in "concerted activities," including the
right to strike.
See 49 Stat. 452, as amended, 29 U.S.C. §
157 (1982 ed.) ("Employees shall have the right . . . to engage in
. . . concerted activities for the purpose of collective bargaining
or other mutual aid or protection"). If an employer could remove a
union merely by hiring a sufficient number of replacements,
employees considering a strike would face not only the prospect of
being permanently replaced, but also a greater risk that they would
lose their bargaining representative, thereby diminishing their
chance of obtaining reinstatement through a strike settlement. It
was rational for the Board to conclude, then, that adoption of the
antiunion presumption could chill employees' exercise of their
right to strike. [
Footnote
13]
Page 494 U. S. 796
Although the Board generally may not act "as an arbiter of the
sort of economic weapons the parties can use,"
NLRB v.
Insurance Agents, 361 U. S. 477,
361 U. S. 497
(1960), it may adopt rules restricting conduct that threatens to
destroy the collective bargaining relationship or that may impair
employees' right to engage in concerted activity.
See, e.g.,
Charles D. Bonanno Linen Service v. NLRB, 454 U.
S. 404,
454 U. S. 412,
454 U. S.
418-419 (1982) (upholding Board rule prohibiting
employer's unilateral withdrawal from multi-employer bargaining
unit during impasse, "although it may deny an employer a particular
economic weapon," because rule advanced "preeminent goal" of
stability in bargaining process);
NLRB v. Erie Resistor Corp.,
supra, 373 U.S. at
373 U. S.
230-237 (upholding Board decision prohibiting employers
from granting super-seniority to strike replacements and strike
crossovers because of damage super-seniority would do to concerted
activity and to future bargaining relationship);
NLRB v. Great
Dane Trailers, Inc., 388 U. S. 26,
388 U. S. 34-35
(1967) (upholding Board decision that employer's payment of
vacation benefits to replacements, crossovers, and nonstrikers but
not to strikers violated Act because of its destructive effect on
concerted activity). The Board's no-presumption approach is
rationally directed at protecting the bargaining process and
preserving employees' right to engage in concerted activity. We
therefore find, in light of the considerable deference we accord
Board rules,
see supra at
494 U. S.
786-787, that the Board's approach is consistent with
the Act.
IV
We hold that the Board's refusal to adopt a presumption that
striker replacements oppose the union is rational and consistent
with the Act. We therefore reverse the judgment of the Court of
Appeals and remand for further proceedings consistent with this
opinion.
It is so ordered.
Page 494 U. S. 797
[
Footnote 1]
Section 8 of the National Labor Relations Act provides, in
pertinent part:
"(a) It shall be an unfair labor practice for an employer --
"
"(1) to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 157 of this title; . .
."
"
* * * *"
"(5) to refuse to bargain collectively with the representatives
of his employees, subject to the provisions of section 159(a) of
this title."
29 U.S.C. §§ 158(a)(1), 158(a)(5) (1982 ed.).
[
Footnote 2]
Justice SCALlA's assertion,
post at
494 U. S. 801,
807 (SCALIA, J., dissenting), that the question presented is
whether "substantial evidence" supported the Board's "factual
finding" that a good faith doubt was not established in this case
misconstrues the issue. The question on which we granted the
Board's petition for certiorari is whether, in assessing whether a
particular employer possessed a good faith doubt, the Board must
adopt a general presumption of replacement opposition to the union.
See Pet. for Cert. I ("Whether, in assessing the
reasonableness of an employer's asserted doubt that an incumbent
union enjoys continued majority support, the Board may refuse to
apply any presumption regarding the extent of union support among
replacements for striking employees").
Accord, Brief for
Petitioner I. Whether the Board permissibly refused to adopt a
general presumption applicable to all cases of this type is not an
evidentiary question concerning the facts of this particular case.
The substantial evidence standard is therefore inapplicable to the
issue before us. Rather, we must determine whether the Board's
refusal to adopt the presumption is rational and consistent with
the Act.
NLRB v. Baptist Hospital, Inc., 442 U.
S. 773,
442 U. S. 787
(1979) ("[T]he courts have the duty to review the Board's
presumptions both
for consistency with the Act, and for
rationality'") (quoting Beth Israel Hospital v. NLRB,
437 U. S. 483,
437 U. S. 501
(1978)). Whether substantial evidence supports the Board's finding
that respondent did not possess an objectively reasonable doubt is
a question for the Court of Appeals to consider, without applying
any presumption about replacements' views, on remand.
[
Footnote 3]
See n 6,
infra.
[
Footnote 4]
The Board also found that statements made by chief shop steward
Shady Goodson before his resignation did not indicate his lack of
support for the Union. Goodson reportedly told respondent's
employee relations director that he was in the middle of an
uncomfortable situation in that the employees did not want the
strike, that he was having difficulty staffing the picket line, and
that the Union was not providing sufficient assistance in
maintaining the picket line. The Board found that these statements
"conveyed only a disapproval of the Union's conduct of the strike,"
and could not be "reasonably interpreted as a repudiation of the
Union as the employees' representative." 287 N.L.R.B. at 352.
[
Footnote 5]
According to respondent's director of employee relations,
Elizabeth Price, two of the crossover employees, Tony Lopez and
Bill Lee, told her that the Union had done nothing for the
employees, and that they would not pay their union dues because
they would not support the Union. Price also stated that striker
J.R. Blackshire expressed his anger over the Union's handling of
strike payments and requested reinstatement. Blackshire also
reportedly said that
"there was no union . . . that people were not supporting it . .
. [and] that there were other striking employees who wanted to
return to work."
287 N.L.R.B. at 351. Price also stated that striker Clint Waller
told her that he was not walking the picket line because he felt
that the Union was not representing the employees, and that he
wanted the strike to end. Waller later resigned from the Union.
Striker Raymond Brunner reportedly told Price that he had thought
about retiring because he no longer wanted to work with the Union.
Price stated that striker replacement David Schneider told her that
he did not think that the Union supported the employees, and did
not see any need for a union as long as the employer treated him
well.
Ibid.
[
Footnote 6]
The "Gorman presumption" derives its name from Professor Robert
Gorman's statement in his labor law treatise that
"if a new hire agrees to serve as a replacement for a striker
(in union parlance, as a strikebreaker, or worse), it is generally
assumed that he does not support the union and that he ought not be
counted toward a union majority."
R. Gorman, Labor Law, Unionization and Collective Bargaining 112
(1976). In context, however, this statement does not appear to
endorse a presumption, but seems merely to describe the Board's
former approach to evaluating replacements' union sentiments.
Id. at 112-113 (citing
Titan Metal Mfg. Co., 135
N.L.R.B. 196 (1962)).
[
Footnote 7]
In addition to the Fifth Circuit in this case, the First and
Eighth Circuits have endorsed the presumption that striker
replacements oppose the union, albeit in cases in which the Board
had applied the contrary presumption rather than its present
no-presumption approach.
Soule Glass & Glazing Co. v.
NLRB, 652 F.2d 1055, 1110 (CA1 1981);
National Car Rental
System, Inc. v. NLRB, 594 F.2d 1203, 1206 (CA8 1979). The
Second and Sixth Circuits, however, have rejected the antiunion
presumption in cases in which the Board had applied its prounion
presumption.
NLRB v. Windham Community Hospital, 577 F.2d
805, 813 (CA2 1978);
NLRB v. Pennco, Inc., 684 F.2d 340
(CA6),
cert. denied, 459 U.S. 994 (1982). The Ninth
Circuit has not expressly rejected the antiunion presumption, but
has approved the Board's no-presumption approach.
See NLRB v.
Buckley Broadcasting Corp., 891 F.2d 230, 233-234 (1989).
[
Footnote 8]
Contrary to respondent's assertion, the Board's no-presumption
approach does not constitute an unexplained abandonment of the good
faith doubt defense to a refusal to bargain charge. The Board's
requirement of some objective evidence indicating replacements'
opposition to the union does not amount to a requirement that the
employer prove that the union in fact lacks majority status. To
show a good faith doubt, an employer may rely on circumstantial
evidence; to show an actual lack of majority support, however, the
employer must make a numerical showing that a majority of employees
in fact oppose the union.
See, e.g, Stormor, Inc., 268
N.L.R.B. 860, 866-867 (1984) (noting that employer need not show
actual loss of majority support to prove good faith doubt). There
is no basis for assuming, then, that the Board has,
sub
silentio, forsaken the good faith doubt standard.
The AFL-CIO, as
amicus curiae, urges us to reject the
good faith doubt standard and hold that an employer, before
withdrawing recognition of the union, must show actual loss of
majority status through a Board-conducted election.
See
also Flynn, The Economic Strike Bar: Looking Beyond the "Union
Sentiments" of Permanent Replacements, 61 Temple L.Rev. 691, 720
(1988). This Court has never expressly considered the validity of
the good faith doubt standard.
Cf. Fall River Dyeing &
Finishing Corp. v. NLRB, 482 U. S. 27,
482 U. S. 41, n.
8 (1987) (citing Board's good faith doubt standard without passing
on its validity). We decline to address that issue here, as both
parties assume the validity of the standard, and resolution of the
issue is not necessary to our decision.
See United Parcel
Service, Inc. v. Mitchell, 451 U. S. 56,
451 U. S. 60, n.
2 (1981).
[
Footnote 9]
Justice SCALIA characterizes this view as "embarrassingly wide
of the mark" and asserts, without any factual support, that unions
"almost certain[ly]" demand displacement of striker replacements.
Post at
494 U. S. 808
(dissenting opinion). We are confident that the Board, with its
vast reservoir of experience in resolving labor disputes, is better
situated than members of this Court to determine the frequency with
which unions demand displacement of striker replacements.
Furthermore, the facts of this case belie Justice SCALIA's
sweeping characterization of the inevitability of such demands, as
the Union did not negotiate for the discharge of replacements as a
condition for settling the strike.
See infra at
494 U. S. 793.
Contrary to Justice SCALIA's assertion,
post at
494 U. S. 809,
an unconditional offer to return to work is hardly the same thing
as a demand that the employer discharge all the replacements and
rehire the strikers as a condition for ending the strike. Here, at
the time of respondent's withdrawal of recognition from the Union,
there were only 19 strikers and 25 replacements. Thus, it is
unlikely that
all the replacements would have lost their
jobs even if all the strikers were reinstated. Depending on their
particular jobs and skills, some replacements might not have felt
threatened by the Union's offer to have the strikers return to
work. More importantly, a union's
offer turns into a
demand only if the union can back up its position with a
credible show of economic force. As explained above,
supra, at
494 U. S.
790-791, a union with little bargaining power is
unlikely to be able to pressure the employer to reinstate the
strikers. Absent record evidence to the contrary, then, we have no
basis for questioning the Board's factual finding that the Union
was not pressing for discharge of the replacements in this
case.
[
Footnote 10]
Justice SCALIA appears to misunderstand our position.
See
post at
494 U. S.
810-811 (SCALIA, J., dissenting). We do not mean that
the replacements' attitudes toward the union
after the
strike are relevant to the Board's determination. Rather, we mean
only that,
during the strike, a replacement may foresee
that his interests favor representation by the union after the
strike. Thus, even if he opposes the strike itself, he may
nevertheless want the union to continue to represent the unit
because of the benefits that will accrue to him from representation
after the strike.
[
Footnote 11]
Thus, assuming for the sake of argument that Justice SCALIA's
supposition,
post at
494 U. S. 808
(dissenting opinion), that unions "almost certain[ly]" demand
displacement of all strike replacements is true, such demands will
be a factor in the Board's analysis in most cases. There is no
reason, however, to force the Board to apply a presumption based on
the premise that unions always make such demands when cases such as
the one before us demonstrate that this premise is false.
[
Footnote 12]
We do not mean to imply that adoption of the antiunion
presumption would be inconsistent with the Act's policy. That
question is not before us.
[
Footnote 13]
Justice SCALIA entirely ignores the Board's policy
considerations, apparently on the rationale that policy is an
illegitimate factor in the Board's decision.
See post at
494 U. S.
812-813 (dissenting opinion). This argument is founded
on the premise that the issue before us is the factual question
whether substantial evidence supports the Board's finding that
respondent lacked a good faith doubt. As stated earlier, however,
see supra at
494 U. S.
778-779, n. 2, the real question is whether the Board
must, in assessing the objective reasonableness of an employer's
doubt, adopt a particular presumption. Certainly the Board is
entitled to consider
both whether the presumption is
factually justified and whether that presumption would disserve the
Act's policies.
See Baptist Hospital, 442 U.S. at
442 U. S. 787.
We need not determine whether the Board's policy considerations
alone would justify its refusal to adopt the presumption
urged by respondent, because we find the Board's decision not
irrational as a factual matter.
See supra at
494 U. S.
788-793.
Chief Justice REHNQUIST, concurring.
The Board's "no-presumption" rule seems to me to press to the
limit the deference to which the Board is entitled in assessing
industrial reality, but for the reasons stated in the opinion of
the Court, I agree that limit is not exceeded. The Court of Appeals
did not consider, free from the use of any presumption, whether
there was substantial evidence on the record as a whole to support
the Board's determination here, and I believe that is a question
best left for the Court of Appeals on remand.
By refusing to allow the employer to resort to what would seem
to be common-sense assumptions about the views of an entire class
of workers -- those hired to replace strikers -- the Board sharply
limits the means by which an employer might satisfy the "good faith
doubt" requirement. Although the Board's opinion in this case does
not preclude a finding of good faith doubt based on circumstantial
evidence, some recent decisions suggest that it now requires an
employer to show that individual employees have "expressed desires"
to repudiate the incumbent union in order to establish a reasonable
doubt of the union's majority status.
See Tube Craft,
Inc., 289 N.L.R.B. 862, n. 2 (1988);
Johns-Mansville Sales
Corp., 289 N.L.R.B. 358, 361 (1988);
Tile, Terrazzo &
Marble Contractors Assn., 287 N.L.R.B. 769, n. 2 (1987). It
appears that another of the Board's rules prevents the employer
from polling its employees unless it first establishes a good faith
doubt of majority status.
See Texas Petrochemicals Corp.,
296 N.L.R.B. No. 136 (1989) (slip op. at 10) (the standard for
employer polling is the same as the standard for withdrawal of
recognition). I have considerable doubt whether the Board may
insist that good faith doubt be determined only on the basis of
sentiments of individual employees, and at the same time bar the
employer from using what might be the only effective means of
determining those sentiments. But that issue is not before us
today.
Page 494 U. S. 798
Justice BLACKMUN, dissenting.
I agree with much that Justice SCALIA says in his dissent, but I
write separately because, in certain respects, his approach differs
from mine. As Justice SCALIA ably demonstrates, the Board's
analysis in this case cannot be reconciled with its decisions in
cases such as
Service Electric Co., 281 N.L.R.B. 633
(1986), and
Leveld Wholesale, Inc., 218 N.L.R.B. 1344
(1975). Those decisions rest upon the premises that a striking
union inevitably will tend to favor its own members at the expense
of replacement workers; that the union cannot reasonably be
expected to give balanced representation to the two groups; and
that the replacements "can reasonably foresee that, if the union is
successful, the strikers will return to work and the strike
replacements will be out of a job."
Id. at 1350. Those
premises are, to say the least, in considerable tension with the
Board's refusal to presume, without direct evidence of employee
preferences, that an employer may in good faith doubt that
replacement workers support the striking union.
Justice SCALIA's dissent, as I read it, rests upon the belief
that the Board was
correct in
Service Electric
and
Leveld Wholesale, and that its decision in the instant
case is therefore
substantively irrational. Certainly the
views expressed in
Service Electric and
Leveld
Wholesale accord with my own understanding of industrial
reality. It seems to me eminently foreseeable that a striking union
will disfavor the workers who have been hired to break the strike;
that the union will attempt, as an element of the ultimate
settlement, to secure the discharge of replacement employees; and
that the replacements will be aware of the antagonism between the
union's interests and their own. [
Footnote 2/1] But if the expert agency were to determine
that the participants in the
Page 494 U. S. 799
collective bargaining process no longer behave in this fashion,
and if it consistently acted upon this determination, I cannot say
at this juncture that the Board's decision would be irrational. To
invalidate the Board's order in the present case, it is not
necessary to assert that the decision is based upon an implausible
assessment of industrial reality. Rather, it is enough to say that
the Board in this case has departed, without explanation, from
principles announced and reaffirmed in its prior decisions. The
agency has made no effort to explain the apparent inconsistency
between the decision here and its analyses in
Service
Electric and
Leveld Wholesale, and its order is
invalid on that basis alone. [
Footnote
2/2]
I am struck, moreover, by the Board's lack of empirical support
for its position -- a significant point in view of the fact that,
for 25 years, the Board presumed that replacement workers opposed
the striking union. If the Board's refusal to adopt such a
presumption is based, at least in part, on policy concerns
(
e.g., the fear that employers would abuse the bargaining
process by "hiring their way out" of their statutory duty), it
seems reasonable to expect the Board to show (or at least to
assert) that such abuses actually occurred during the period the
presumption was in place. I am also troubled by the fact, noted in
the CHIEF JUSTICE's concurring opinion,
ante at
494 U. S. 797,
that while the Board appears to require that good faith doubt be
established by express avowals of individual employees, other Board
policies make it practically impossible for the employer to amass
direct evidence of its workers' views. [
Footnote 2/3] The point, I emphasize, is that the
propriety
Page 494 U. S. 800
of the no-presumption rule cannot be determined simply by asking
whether the rule, in isolation, is irrational or rests on a
demonstrably misguided view of the facts. Rather, the reviewing
court also must ask whether the agency's decision is the product of
an adequate deliberative process and is consonant with other agency
pronouncements in analogous areas.
Perhaps the difference between my approach and that of Justice
SCALIA is one only of emphasis, but I think that the difference is
worth noting. Rarely will a court feel so certain of the wrongness
of an agency's empirical judgment that it will be justified in
substituting its own view of the facts. But courts can and should
review agency decisionmaking closely to ensure that an agency has
adequately explained the bases for its conclusions, that the
various components of its policy form an internally consistent
whole, and that any apparent contradictions are acknowledged and
addressed. This emphasis upon the decisionmaking
process
allows the reviewing court to exercise meaningful control over
unelected officials without second-guessing the sort of expert
judgments that a court may be ill-equipped to make. Such an
approach also affords the agency a broad range of discretion.
Confronted with a court's conclusion that two of its policy
pronouncements are inconsistent, the agency may choose for itself
which path to follow, or it may attempt to explain why no
contradiction actually exists.
This Court has never held that the Board is required by statute
to recognize the good faith doubt defense, and the Board's power to
eliminate that defense remains an open
Page 494 U. S. 801
question. The Board has not purported to take that step,
however, and the agency has articulated no legitimate basis for its
conclusion that the employer in this case lacked a good faith doubt
as to the union's majority support. The Board may not assert in one
line of cases that the interests of a striking union and
replacement workers are irreconcilably in conflict, and proclaim in
a different line of decisions that no meaningful generalizations
can be made about the union sentiments of the replacement
employees. I therefore conclude that the judgment of the Court of
Appeals should be affirmed.
I respectfully dissent.
[
Footnote 2/1]
See Belknap, Inc. v. Hale, 463 U.
S. 491,
463 U. S. 513,
463 U. S. 514
(1983) (opinion concurring in the judgment) ("During settlement
negotiations, the union can be counted on to demand reinstatement
for returning strikers as a condition for any settlement").
[
Footnote 2/2]
See Greater Boston Television Corp. v. F.C.C., 143
U.S.App.D.C. 383, 394, 444 F.2d 841, 852 (1970) ("[A]n agency
changing its course must supply a reasoned analysis indicating that
prior policies and standards are being deliberately changed, not
casually ignored, and, if an agency glosses over or swerves from
prior precedents without discussion, it may cross the line from the
tolerably terse to the intolerably mute") (footnote omitted),
cert. denied, 403 U.S. 923 (1971).
[
Footnote 2/3]
The NLRB has recently reaffirmed its rule that an employer must
meet the same good faith doubt standard in order to poll its
employees, petition the Board for an election, or withdraw
recognition from the union.
Texas Petrochemicals Corp.,
296 N.L.R.B. No. 136, slip op. 10 (September 29, 1989). If good
faith doubt can be established only by the express statements of
individual workers, the employer is placed in a difficult bind.
See Mingtree Restaurant, Inc. v. NLRB, 736 F.2d 1295, 1297
(CA9 1984) ("By the Board's reasoning, an employer in doubt of the
union's majority status would be allowed to take a poll only when
it had no actual need to do so, that is, when it already had
sufficient objective evidence to justify withdrawal of
recognition").
Justice SCALIA, with whom Justice O'CONNOR and Justice KENNEDY
join, dissenting.
The Court makes heavy weather out of what is, under well
established principles of administrative law, a straightforward
case. The National Labor Relations Board (NLRB or Board) has
established as one of the central factual determinations to be made
in § 8(a)(5) unfair labor practice adjudications, whether the
employer had a reasonable, good faith doubt concerning the majority
status of the union at the time it requested to bargain. The Board
held in the present case that such a doubt was not established by a
record showing that, at the time of the union's request, a majority
of the bargaining unit were strike replacements, and containing no
affirmative evidence that any of those replacements supported the
union. The question presented is whether that factual finding is
supported by substantial evidence. Since the principal
employment-related interest of strike replacements (to retain their
jobs) is almost invariably opposed to the principal interest of the
striking union (to replace them with its striking members), it
seems to me impossible to conclude on this record that the employer
did not have a reasonable good faith doubt regarding the union's
majority status. The Board's factual finding being unsupported by
substantial evidence, it cannot stand. I therefore dissent from the
judgment
Page 494 U. S. 802
reversing the Fifth Circuit's refusal to enforce the Board's
order.
I
As the Court describes, the union was certified in 1970. In
1979, before the strike, the bargaining unit was composed of 27
employees. After the strike began, 5 employees crossed the picket
line and 29 new employees were hired to replace the strikers. On
July 16, the union offered to return to work under the terms of
respondent's last prestrike proposal. On July 20, respondent
rejected this offer, withdrew recognition from the union, and
refused to bargain further, stating that it doubted that the union
represented a majority of the employees in the bargaining unit. On
that date, according to the Board, the bargaining unit consisted of
49 employees: 19 strikers, 5 employees who had crossed the picket
line to return to work, and 25 strike replacements. The union filed
an unfair labor practice charge with the Board, and the Board's
General Counsel filed a complaint charging that respondent had
violated § 8(a)(5) (and thereby § 8(a)(1)) of the National Labor
Relations Act (NLRA), 49 Stat. 452,
as amended, 29 U.S.C.
§ 158(a)(1) and (5) (1982 ed.). After a formal hearing, the
Administrative Law Judge (ALJ) found that respondent, at the time
it withdrew recognition, had an objectively reasonable, good faith
doubt that the union represented a majority of the employees in the
bargaining unit. The General Counsel introduced no evidence that
the union in fact commanded the support of a majority of the
employees, and the ALJ dismissed the complaint.
The Board reversed, and entered an order finding that respondent
had violated the Act. The Board began by reciting its longstanding
rule that
"'[a]n employer who wishes to withdraw recognition after a year
may do so . . . by presenting evidence of a sufficient objective
basis for a reasonable doubt of the union's majority status at the
time the employer refused to bargain.'"
287 N.L.R.B. 350, 352 (1987) (quoting
Station KKHI, 284
N.L. R.B. 1339, 1340 (1987)).
Page 494 U. S. 803
Purporting to evaluate respondent's action under this standard,
the Board concluded that respondent had not established a
reasonable basis for doubting the union's majority status. First,
the Board stated that there was no cause to doubt that the five
strikers who crossed the picket line to return to work supported
the union, because "[t]he failure of employees to join an economic
strike may indicate their economic concerns, rather than a lack of
support for the union." 287 N.L.R.B. at 352. Second, relying on its
decision in
Station KKHI, the Board stated that the fact
that 25 employees in the bargaining unit were strike replacements
provided "no evidentiary basis for reasonably inferring the union
sentiments of the replacement employees as a group."
Id.
at 352-353. Third, the Board discounted the statements of six
employees criticizing the union, because,
"[e]ven attributing to them the meaning most favorable to the
Respondent, it would merely signify that 6 employees of a total of
approximately 50 did not desire to keep the Union as the collective
bargaining representative."
Id. at 353 (footnote omitted).
The Fifth Circuit denied enforcement of the Board's order on the
ground that respondent "was justified in doubting that the striker
replacements supported the union," and that the Board's contrary
conclusion was not supported by substantial evidence. 859 F.2d 362,
365, 367 (1988).
II
An NLRB unfair labor practice action is the form of
administrative proceeding known as formal adjudication, governed by
the Administrative Procedure Act (APA), 5 U.S.C. §§ 556, 557.
See 5 U.S.C. § 554(a). In fact, it is even somewhat more
judicialized than ordinary formal adjudication, since it is
governed in addition by the procedural provisions of the NLRA
itself, which provide,
inter alia, that the proceeding
"shall, so far as practicable, be conducted in accordance with
the rules of evidence applicable in the district courts of the
United States under the rules of civil procedure for the
Page 494 U. S. 804
district courts of the United States,"
29 U.S.C. § 160(b) (1982 ed.). Among the attributes of formal
adjudication relevant here, the agency opinion must contain
"findings and conclusions, and the reasons or basis therefor, on
all the material issues of fact, law, or discretion presented on
the record," 5 U.S.C. § 557(c), and a reviewing court must "hold
unlawful and set aside agency action, findings, and conclusions
found to be . . . unsupported by substantial evidence," 5 U.S.C. §
706(2)(E);
accord, 29 U.S.C. § 160(f) (1982 ed.) ("the
findings of the Board with respect to questions of fact if
supported by substantial evidence on the record considered as a
whole shall . . . be conclusive").
The Board's factual finding challenged in the present case is
that there was no "
sufficient objective basis for a reasonable
doubt of the union's majority status at the time of the employer
refused to bargain.'" 287 N.L.R.B. at 385 (quoting Station
KKHI, 284 N.L.R.B. at 1340). The Board has held for many years
that an employer's reasonable, good faith doubt as to a certified
union's continued majority status is a defense to an unfair labor
practice charge for refusal to bargain, in the sense that it shifts
to the General Counsel the burden to
"come forward with
evidence that, on the
refusal-to-bargain date, the union in fact did represent a majority
of employees in the appropriate unit."
Stoner Rubber Co., 123 N.L.R.B. 1440, 1445 (1959)
(emphasis in original). The leading case on the subject, cited
approvingly in the
Station KKHI opinion that formed the
basis for the Board's holding here, described the good faith doubt
defense as follows:
"We believe that the answer to the question whether the
Respondent violated Section 8(a)(5) of the Act . . . depends not on
whether there was sufficient evidence to rebut the presumption of
the Union's continuing majority status or to demonstrate that the
Union in fact did not represent the majority of the employees, but
upon whether
the Employer in good faith believed that
Page 494 U. S. 805
the Union no longer represented the majority of the employees. .
. . "
"
* * * *"
"By its very nature, the issue of whether an employer has
questioned a union's majority in good faith cannot be resolved by
resort to any simple formula. It can only be answered in the light
of the totality of all the circumstances involved in a particular
case. But among such circumstances, two factors would seem to be
essential prerequisites to any finding that the employer raised the
majority issue in good faith in cases in which a union had been
certified. There must, first of all, have been some reasonable
grounds for believing that the union had lost its majority status
since its certification. And secondly, the majority issue must not
have been raised by the employer in a context of illegal antiunion
activities. . . ."
Celanese Corp. of America, 95 N.L.R.B. 664, 671-673
(1951). The Board purported to be proceeding on the basis that
Celanese was still the law, and thus that "the totality of
all [
sic] the circumstances" in the present case did not
establish reasonable grounds for doubting majority status. The
precise question presented is whether there was substantial
evidence to support this factual finding. There plainly was
not.
As described above, of the 49 employees in the bargaining unit
at the time of respondent's refusal to bargain, a majority (25)
were strike replacements, and another 5 were former employees who
had crossed the union's picket line. It may well be doubtful
whether the latter group could be thought to support the union, but
it suffices to focus upon the 25 strike replacements, who must be
thought to oppose the union if the Board's own policies are to be
believed. There was a deep and inherent conflict between the
interests of these employees and the interests of the union. As the
Board's cases have explained:
Page 494 U. S. 806
"Strike replacements can reasonably foresee that, if the union
is successful, the strikers will return to work and the strike
replacements will be out of a job. It is understandable that unions
do not look with favor on persons who cross their picket lines and
perform the work of strikers."
Leveld Wholesale, Inc., 218 N.L.R.B. 1344, 1350
(1975).
"The Union had been bargaining agent for those discharged
employees, and there can be no question that the Union's loyalty
lay with these employees. The interests of the discharged employees
were diametrically opposed to those of the strike replacements. If
the discharged employees returned to work, the strike replacements
would lose their jobs."
Beacon Upholstery Co., 226 N.L. R.B. 1360, 1368 (1976)
(footnote omitted). The Board relies upon this reality of
"diametrically opposed" interests as the basis for two of its
rules: First, that an employer does not commit an unfair labor
practice by refusing to negotiate with the incumbent union
regarding the terms and conditions of the replacements' employment.
See Service Electric Co., 281 N.L.R.B. 633, 641 (1986).
Second, that the union's duty of fair representation does not
require it to negotiate in the best interests of the strike
replacements regarding the terms and conditions of their employment
-- in other words, that the union may propose "negotiations leading
to replacements being terminated to make way for returning
strikers,"
ibid. See id. at 639 ("it is not logical to
expect [the striking bargaining] representative to negotiate in the
best interests of strike replacements during the pendency of a
strike") (internal quotation; citation omitted);
id. at
641 (even after the strike has ended, the "inherent conflict
between the two groups remains" until the underlying contractual
dispute has been resolved);
Leveld Wholesale, supra, at
1350 ("It would be asking a great deal of any union to require it
to negotiate in the best interests of strike replacements
Page 494 U. S. 807
during the pendency of a strike, where the strikers are on the
picket line").
The respondent in this case, therefore, had an employee
bargaining unit a majority of whose members (1) were not entitled
to have their best interests considered by the complainant union,
(2) would have been foolish to
expect their best interests
to be considered by that union, and indeed, (3) in light of their
status as breakers of that union's strike, would have been foolish
not to expect their best interests to be subverted by that union
wherever possible. There was, moreover, not a shred of affirmative
evidence that any strike replacement supported, or had reason to
support, the union. On those facts, any reasonable factfinder must
conclude that the respondent possessed, not necessarily a
certainty, but at least a reasonable, good faith doubt, that the
union did not have majority support. At least three Circuit Courts
of Appeals have effectively agreed with this assessment,
considering strike replacements as opposed to the union in
reversing Board findings of no reasonable, good faith doubt.
See Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055,
1110 (CA1 1981);
National Car Rental System, Inc. v. NLRB,
594 F.2d 1203, 1206-1207 (CA8 1979);
NLRB v. Randle-Eastern
Ambulance Service, Inc., 584 F.2d 720, 728-729 (CA5 1978).
In making its no-reasonable doubt finding, the Board relied upon
its decision in
Station KKHI, which stated:
"[T]he hiring of permanent replacements who cross a picket line,
in itself, does not support an inference that the replacements
repudiate the union as collective bargaining representative. . . .
In this regard, an employee may be forced to work for financial
reasons, or may disapprove of the strike in question but still
desire union representation and would support other union
initiatives. The presumption of union disfavor is therefore not
factually compelling."
284 N.L.R.B. at 1344 (footnotes omitted).
Page 494 U. S. 808
The Court finds this reasoning persuasive:
"Economic concerns, for instance, may force a replacement
employee to work for a struck employer even though he otherwise
supports the union and wants the benefits of union
representation."
Ante at
494 U. S. 789.
These responses are entirely inadequate. The question is not
whether replacement employees accept employment for economic
reasons. Undoubtedly they do -- the same economic reasons that
would lead them to oppose the union that will likely seek to
terminate their employment. Nor is the question whether
replacements would like to be represented by a union. Some perhaps
would. But what the employer is required to have a good faith doubt
about is majority support, not for "union representation" in the
abstract, but for representation
by this particular complainant
union, at the time the employer withdrew recognition from the
union.
Also embarrassingly wide of the mark is the Court's observation
that "[u]nions do not inevitably demand displacement of all strike
replacements."
Ante at
494 U. S. 790.
It is not necessary to believe that unions
inevitably
demand displacement of
all strike replacements in order to
doubt (as any reasonable person must) that strike replacements
support a union that is under no obligation to take their
employment interests into account, and that is
almost
certain to demand displacement of as many strike replacements
as is necessary to reinstate former employees. The Court does not
accurately describe my position, therefore, when it suggests that I
seek "to force the Board to apply a presumption based on the
premise that unions
always make such demands."
Ante at
494 U. S. 793,
n. 11. I seek to force the Board, as the APA requires, to give
objectively reasonable probative effect to the reality (expressed
in the Board's own opinions and made the basis for rules of law it
has adopted) that unions
almost always make such demands,
and that replacement employees know that. That is enough to
establish this employer's good faith doubt.
Page 494 U. S. 809
The Court asserts that "the facts of this case" belie the
proposition that a union "is almost certain to demand the
displacement of as many strike replacements as is necessary to
reinstate former employees," because the union in this case "did
not negotiate for the discharge of replacements as a condition for
settling the strike."
Ante at
494 U. S. 808,
n. 9. That is not true, and even if it were true, it would not be
determinative of the issue here. According to the Board, this is
what happened:
"On 16 July, the Union,
on behalf of the striking
employees, made an unconditional offer
to return to
work, thereby ending the strike. Later on the same day, the
Union notified the Respondent that the bargaining unit employees
had accepted the Respondent's 25 May collective bargaining
proposal."
287 N.L.R.B. at 351 (emphasis added). Surely an offer "on behalf
of the striking employees . . . to return to work" can only be
accepted by allowing the striking employees to return to work. Does
the Court really mean to interpret the Union's action as agreement
that the strike replacements shall stay on the job under the terms
of the May 25 collective bargaining proposal, and the strikers
remain unemployed? Or as a proposal that the employer should double
its work force, paying both the replacement workers and the
returning strikers under the terms of the May 25 offer? Surely the
very most that can be said is that the Union's offer
left the
status of the replacement workers for later negotiation. No
more is necessary to establish a reasonable doubt that the
replacement workers would support the union -- which, in any such
negotiations, could be expected (indeed, would have a legal
obligation) to seek displacement of the strikebreakers by the
returning strikers. As the Board said in Service Electric:
"[E]ven if the strike be deemed to have ended by virtue of the
Union's announcement that it had been terminated,
Page 494 U. S. 810
there is no basis for concluding that the Union suddenly is
better able 'to negotiate in the best interests of strike
replacements,'
Leveld Wholesale, . . . 218 NLRB 1344, than
it previously had been able to do. The inherent conflict between
the two groups remains."
281 N.L.R.B. at 641.
The Court mentions only as an afterthought the fundamental
conflict of interests that is at the center of this case:
"Moreover, even if the interests of strikers and replacements
conflict
during the strike, those interests may converge
after the strike, once job rights have been resolved.
Thus, while the strike continues, a replacement worker whose job
appears relatively secure might well want the union to continue to
represent the unit regardless of the union's bargaining posture
during the strike."
Ante at
494 U. S. 792
(emphasis in original). The trouble with this is that it posits a
species of replacement worker that will rarely exist unless and
until the union has agreed (as it had not in this case) to accept
the replacements' employment status --
i.e., until "job
rights have been resolved." How can there be "a replacement worker
whose job appears relatively secure" when the employer agrees to
negotiate in good faith with a union that will surely seek the
reinstatement of all its strikers? Even a replacement worker who
has clear seniority over other replacement workers, and who somehow
knows (by what means I cannot imagine) that some of the striking
workers no longer want their jobs back, [
Footnote 3/1] has no means of assurance that the union
will do
Page 494 U. S. 811
him the favor of bargaining for the employer to honor his
seniority among strikebreakers. It seems overwhelmingly likely that
the union will want its returning members to have their old jobs
back, or better jobs, regardless of the relative seniority of the
strikebreakers who would thereby be displaced. I do not dispute
that "replacement workers are capable of looking past the strike in
considering whether or not they desire representation by the
union,"
ante at
494 U. S. 792
-- in the same way that a man who is offered one million dollars to
jump off a cliff is capable of looking past the probable
consequence of his performance to contemplate how much fun he would
have with one million dollars if he should survive. Surely the
benefits strike replacements anticipate from their post-strike
representation by
this particular union must be expected
to weigh much less heavily in their calculus than the reality that,
if
this particular union does the bargaining and gets its
way, they will not have post-strike jobs.
The Court's only response to this is that the union's ability to
achieve displacement of the strike replacements will depend upon
its bargaining power. Its bargaining power could conceivably be so
weak, and a strike replacement might conceivably so prefer
this union over other alternatives, that he would be
willing to take the chance that the union will try to oust him.
Ante at
494 U. S.
790-791. I suppose so. It might also be that one of the
strike replacements hopes the union will continue as the bargaining
representative because, as the employer knows, the union president
is his son-in-law. The Board Counsel is entirely free to introduce
such special circumstances. But unless they appear in the record,
the reasonableness of the employer's doubt must be determined on
the basis of how a reasonable person would assess the probabilities
-- and it is overwhelmingly improbable that a
Page 494 U. S. 812
strikebreaking replacement so much prefers the incumbent union
to some other union, or to no union at all, that he will bet his
job the union is not strong enough to replace him. The wager is
particularly bad because it is so unnecessary, since he and his
fellow replacements could achieve the same objective, without
risking their jobs in the least, by simply voting for that union,
after the strike is over, in a new certification election.
I reiterate that the burden upon the employer here was not to
demonstrate 100% assurance that a majority of the bargaining unit
did not support the union, but merely "reasonable doubt" that they
did so. It seems to me absurd to deny that it sustained that
burden.
III
The Court never directly addresses the question whether there
was substantial evidence to support the Board's conclusion that
respondent had not established a reasonable good faith doubt of the
union's majority status. Indeed, it asserts that that question is
not even at issue, since
"[t]he question on which we granted the Board's petition for
certiorari is whether, in
assessing whether a particular
employer possessed a good faith doubt, the Board must adopt a
general presumption of replacement opposition to the union."
Ante at
494 U. S. 778,
n. 2. That is the equivalent of characterizing the appeal of a
criminal conviction, in which the defendant asserts that the
indictment should have been dismissed because all the evidence
demonstrated that he was not at the scene of the crime, as
involving, not the adequacy of the evidence, but rather the
question whether the jury was required to adopt the general
presumption that a person cannot be in two places at the same time.
No more in administrative law than in criminal law is the
underlying question altered by characterizing factual probabilities
as presumptions. The two are one and the same. The only reason
respondents assert, and the Fifth Circuit held, that the Board
had to adopt the "presumption"
Page 494 U. S. 813
of replacement opposition to the union (I place the word in
quotation marks because, as I shall describe, that terminology is
misleading) is that to refuse to apply that "presumption" for the
reason the Board gave (
viz., that it is not in fact an
accurate assessment of probabilities) is to deny evidence its
inherently probative effect, and thus to produce a decision that is
not supported by substantial evidence. The Board's framing of the
question presented, like its opinion in this case, invites us to
confuse factfinding with policymaking. The Court should not so
readily have accepted the invitation.
Prior to its decision in
Station KKHI, the Board well
understood the inevitable logic set forth in Part II above, and had
held that an employer has an objectively reasonable basis for
doubting the union's majority status when the majority of employees
in the bargaining unit are permanent replacements, and there is no
other indication regarding the replacements' sentiments toward the
union.
See Beacon Upholstery Co., 226 N.L.R.B. at 1368;
Titan Metal Mfg. Co., 135 N.L.R.B. 196, 215 (1962);
Stoner Rubber Co., supra, at 1445. In a case called
Cutten Supermarket, 220 N.L.R.B. 507 (1975), the Board
departed, in dictum, from this well established precedent. There,
as the Board describes the case in
Station KKHI, 284
N.L.R.B. at 1341, the Board "inexplicably stated," with respect to
strike replacements:
"[I]t is a well-settled principle that new employees are
presumed to support the union in the same ratio as those whom they
have replaced."
220 N.L.R.B. at 509. This dictum became a Board holding in
Pennco, Inc., 250 N.L.R.B. 716 (1980), where the Board
stated:
"The Board has long held that [the presumption of strike
replacement support for the union]
applies as a matter of
law, and it is incumbent upon Respondent to rebut it even, and
perhaps especially, in the event of a strike."
Id. at 717 (emphasis added). As the Board acknowledged
in
Station KKHI:
Page 494 U. S. 814
"The Board in
Pennco cited no cases in support of its
assertion that the presumption in question was 'long held.' Indeed,
. . . this presumption was not 'long held' at all, but in fact was
not articulated in any fashion until
Cutten Supermarket in
1975, only 5 years prior to
Pennco, and even then
(
i.e., in
Cutten) in dictum and without
supporting rationale or precedent."
284 N.L.R.B. at 1343. Unsurprisingly, given the feeble support
for this presumption, the Circuit Courts (I am still repeating the
account in
Station KKHI) "uniformly rejected it."
Ibid.
In
Station KKHI, which is the case that established the
framework of reasoning for the decision we review today, the
principal issue before the Board was the
Pennco
presumption of replacement support for the union.
See 284
N.L.R.B. at 1340. The Board abandoned it.
See id. at 1344.
The Board went further, however, and here is the error that infects
the present opinion:
"On the other hand, we find the contrary presumption equally
unsupportable. Thus, the hiring of permanent replacements who cross
a picket line, in itself, does not support an inference that the
replacements repudiate the union as collective bargaining
representative."
Ibid. The mistake here is to treat as equivalent
elements of decisionmaking the presumption that strike replacements
do support the union, and the evidentiary inference that
strike replacements do
not support the union. They are not
different applications of the same device, and it does not display
a commitment to be governed only by the "real facts" to reject both
the one and the other. The former was applied "as a matter of law,"
Pennco, supra, at 717, and not as the product of
inference, which is "[a] process of reasoning by which a fact or
proposition sought to be established is deduced as a logical
consequence from other facts, or a state of facts, already proved
or admitted." Black's Law Dictionary 700 (5th ed.
Page 494 U. S. 815
1979). One can refer to the product of an inference as a
presumption: If one knows the identity of the sole Englishman in a
certain remote part of Africa, and encounters there a white man in
pith helmet sipping a gin and tonic, it is perfectly appropriate to
say "Dr. Livingston, I presume." But that sort of presumption,
which the text writers used to call "presumption of fact,"
see 9 J. Wigmore, Evidence § 2491, p. 304 (J. Chadbourn
rev. ed. 1981), is quite different from the
Pennco-type
"presumption of law" insofar as concerns both agency power and
judicial review, as I shall proceed to explain.
It is the proper business of the Board, as of most agencies, to
deal in both presumptions (
i.e., presumptions of law) and
inferences (presumptions of fact). The former it may create and
apply
in the teeth of the facts, as means of implementing
authorized law or policy in the course of adjudication. An example
is the virtually irrebuttable presumption of majority support for
the union during the year following the union's certification by
the Board,
Station KKHI, 284 N.L.R.B. at 1340. The latter,
however -- inferences (or presumptions of fact) -- are not
creatures of the Board, but its masters, representing the dictates
of reason and logic that must be applied in making adjudicatory
factual determinations. Whenever an agency's action is reversed in
court for lack of "substantial evidence," the reason is that the
agency has ignored inferences that reasonably must be drawn, or has
drawn inferences that reasonably cannot be. As I have discussed
above, that is what happened here. [
Footnote 3/2]
Page 494 U. S. 816
Of course, the Board may choose to implement authorized law or
policy in adjudication by
forbidding a
rational
inference, just as it may do so by
requiring a
nonrational one (which is what a presumption of law is).
And perhaps it could lawfully have reached the outcome it did here
in that fashion -- saying that,
even though it must
reasonably be inferred that an employer has good faith doubt of
majority status when more than half of the bargaining unit are
strike replacements whose job rights have not been resolved, we
will not permit that inference to be made. (This would produce an
effect close to a rule of law eliminating the good faith doubt
defense except for cases in which the employer can demonstrate, by
employee statements, lack of support for the union.) But that is
not what the agency did here. It relied on the reasoning of
Station KKHI, which rested upon the conclusion that,
as a matter of logic and reasoning,
"the hiring of permanent replacements who cross a picket line,
in itself, does not support an inference that the replacements
repudiate the union as collective bargaining representative."
Id. at 1344. That is simply false. It is bad
factfinding, and must be reversed under the "substantial evidence"
test.
It is true that
Station KKHI added, seemingly as a
make-weight:
"Moreover, adoption of this presumption would disrupt the
balance of competing economic weapons long established in strike
situations and substantially impair the employees' right to strike
by adding to the risk of replacement the risk of loss of the
bargaining representative as soon as replacements equal in number
to the strikers are willing to cross the picket line."
Ibid. There are several reasons why
Page 494 U. S. 817
we cannot allow this seeming policy justification to suffice for
sustaining the agency's action.
First of all, it is set forth as a reason for not adopting a
counter-factual presumption, rather than (what would have been
necessary to validate the agency's action) a reason for ignoring
legitimate factual inferences. It is one thing to say:
"The facts do not support conclusion X, and we decline to impose
conclusion X as a matter of law, since that would have adverse
policy consequences."
It is quite another thing to say: "Even though the facts require
conclusion X, we reject it for policy reasons." The former is what
the Board has said here, and the latter is what it would have to
say to support its decision properly on policy grounds. The agency
has set forth a reason for
rejecting the suggestion that
it ignore the facts; having found that, on the record, the facts
were the opposite of what the agency believed (
i.e., there
was reasonable good faith doubt), we have no idea whether the
agency would regard the same reason as adequate basis for now
accepting a suggestion that it ignore the facts. Under
long-established principles of judicial review, we cannot make that
yet-to-be-made decision on the agency's behalf, but must remand so
that the Board may do so.
SEC v. Chenery Corp.,
318 U. S. 80,
318 U. S. 88
(1943).
Second, by upholding as a counterfactual policy determination a
ruling that was made, and defended before the Fifth Circuit, as
ordinary factfinding plus the refusal to adopt a counterfactual
policy determination, we would be depriving respondent of possible
legal defenses that it had no occasion to present to the courts.
Section 8(a)(5) of the NLRA is violated only if the employer
refuses to bargain "with the representatives" of his employees. 29
U.S.C. § 158(a)(5) (1982 ed.). The Act does not define the term
"representatives," except to say that it "includes any individual
or labor organization." 29 U.S.C. § 152(4) (1982 ed.).
Specifically, it does not say or anywhere suggest that a certified
union is the "representative" for purposes of § 158(a)(5) unless
and until it is decertified. Because the Board has
Page 494 U. S. 818
long acknowledged the good faith doubt defense, there has been
no occasion to test in the courts the proposition that the employer
can be liable for refusing to bargain with a certified union that
patently does not have majority support. The only presumption of
law that is applied to effect a policy exception to this defense --
the almost irrebuttable presumption of union support for one year
after its certification -- is arguably authorized as an
implementation of the policy of 29 U.S.C. § 159(e)(2) (1982 ed.),
which precludes certification elections more frequently than
annually. Even if, moreover, the Board can generally require the
employer to bargain with a union that is not a "representative" in
the sense of having majority support, there is the further question
whether it can require him to bargain with a union that is a
"representative"
neither in that sense
nor in the
sense that it is obligated to bargain in the best interests of the
majority of employees.
See my earlier discussion of the
Board's rule that the union has no duty to represent the interest
of replacement employees,
supra, at
494 U. S.
806-807. The Board did not have to confront these issues
in the present case, because it did not purport to be deciding the
case on the assumption that the union lacked majority support. It
found respondent guilty of an unfair labor practice on the ground
that there was,
in fact, no reasonable doubt of the
union's majority status; and it is exclusively
that
finding which respondent challenged, both here and in the Fifth
Circuit. If we permitted the Board's order to be enforced on the
quite different ground that it does not matter whether respondent
had a reasonable, good faith doubt, we not only would be making for
the Board a decision it has not yet reached, but also would be
depriving respondent of judicial review of that decision. [
Footnote 3/3]
Page 494 U. S. 819
* * * *
Despite the fact that the NLRB has explicit rulemaking
authority,
see 29 U.S.C. § 156 (1982 ed.), it has chosen
-- unlike any other major agency of the federal government -- to
make almost all its policy through adjudication. It is entitled to
do that,
see NLRB v. Bell Aerospace Co., 416 U.
S. 267,
416 U. S.
294-295 (1974), but it is not entitled to disguise
policymaking as factfinding, and thereby to escape the legal and
political limitations to which policymaking is subject. Thus, when
the Board purports to find no good faith doubt because the facts do
not establish it, the question for review is whether there is
substantial evidence to support that determination. Here there is
not, and the Board's order should not be enforced. What the Court
has permitted the Board to accomplish in this case recalls Chief
Justice Hughes' description of the unscrupulous administrator's
prayer: "
Let me find the facts for the people of my country,
and I care little who lays down the general principles.'" Address
before Federal Bar Association, February 12, 1931, quoted by Frank,
J. in United States v. Forness, 125 F.2d 928, 942 (CA2
1942), reprinted in 13 The Owl of Sigma Nu Phi 9, 12 (1931). I
respectfully dissent.
[
Footnote 3/1]
The Court emphasizes that, "at the time of respondent's
withdrawal of recognition from the union, there were only 19
strikers and 25 replacements."
Ante at
494 U. S. 792,
n. 9. It is easy for the Court to know this, following a full-dress
formal adjudication inquiring into the historical fact. One wonders
how or why the replacement workers could be thought to have known
it at the time. Surely the union did not advertise the fact that
its strike force was dwindling, and it is unlikely that the
strikebreakers learned it from the remaining strikers in the course
of routine fraternization. Perhaps they knew, but they most
probably did not; and whether the employer's doubt about
replacement support for the union was reasonable depends, of
course, upon whether he reasonably assessed the probabilities.
[
Footnote 3/2]
The Court apparently believes that it is all right for the Board
to ignore proper factfinding now, so long as it promises to make
proper factfinding later. The Court says that,
"assuming for the sake of argument that . . . unions 'almost
certain[ly]' demand displacement of all strike replacements . . . ,
such demands will be a factor in the Board's analysis in most
cases. There is no reason, however, to force the Board to apply a
presumption based on the premise that unions
always make
such demands. . . ."
Ante at
494 U. S. 793,
n. 11. This presumably means that, when the respondent, having been
compelled by the Board to negotiate with this union, is presented
with a proposal for displacement of strike replacements, it may
then break off negotiations on the grounds that it has a
good faith doubt of the union's majority status. I doubt very much
that this is what the Board has in mind. But even if it is, it does
not justify the Board's compelling the respondent to negotiate in
the first place, when any reasonable person must have entertained a
"reasonable doubt" of the union's majority status -- which the
Board continues to affirm is enough.
[
Footnote 3/3]
The Court says that it
"need not determine whether the Board's policy considerations
alone would justify its refusal to adopt the presumption urged by
respondent, because we find the Board's decision not irrational as
a factual mater."
Ante at
494 U. S.
795-796, n. 13. For the reasons just discussed in text,
the Board's policy considerations alone could not possibly be held
to have justified the refusal in the present case. The Court's
statement does make perfectly clear, however, that today's judgment
ultimately rests upon the determination that it was "not irrational
as a factual matter" for the Board to deny on the present record
that respondent had a reasonable, good faith doubt. That
determination is simply not credible.