494 U.S. 775 (1990), 88-1685, National Labor Relations Board v. Curtin Matheson Scientific, Inc.

Docket NºNo. 88-1685
Citation494 U.S. 775, 110 S.Ct. 1542, 108 L.Ed.2d 801
Party NameNational Labor Relations Board v. Curtin Matheson Scientific, Inc.
Case DateApril 17, 1990
CourtUnited States Supreme Court

Page 775

494 U.S. 775 (1990)

110 S.Ct. 1542, 108 L.Ed.2d 801

National Labor Relations Board

v.

Curtin Matheson Scientific, Inc.

No. 88-1685

United States Supreme Court

April 17, 1990

Argued Dec. 4, 1989

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

Syllabus

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. 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. 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 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 [110 S.Ct. 1544] 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. 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 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. 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. 797. BLACKMUN, J., filed a dissenting opinion, post, p. 798 SCALIA, J., filed a dissenting opinion, in which O'CONNOR and KENNEDY, JJ., joined, post, p. 801.

MARSHALL, J., lead opinion

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 778

presumption of majority support for one year. Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 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.).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 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.2

Page 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 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 [110 S.Ct. 1546] 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...

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    ...FAA, the Norris-LaGuardia Act indi-cated that the FAA would have to yield. Id. at 364–365. 38 NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786–787 (1990). is built on the principle that workers may act collective-ly—at work and in other forums, including the courts—to improve the......
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    ...a good faith doubt founded on sufficient objective evidence that the union has lost majority support (NLRB v. Curtin Matheson Scientific, 494 U.S. 775, 110 S. Ct. 1542, 108 L. Ed. 2d 801 [1990]). In cases where the employer doubts that a union enjoys majority support, the employer may "......
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    ...a good faith doubt founded on sufficient objective evidence that the union has lost majority support (NLRB v. Curtin Matheson Scientific, 494 U.S. 775, 110 S. Ct. 1542, 108 L. Ed. 2d 801 [1990]). In cases where the employer doubts that a union enjoys majority support, the employer may "......
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