OCTOBER TERM, 1997
Syllabus
ALLENTOWN MACK SALES & SERVICE, INC.
v.
NATIONAL LABOR RELATIONS BOARD
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
No. 96-795. Argued October 15, 1997-Decided January 26, 1998
Mack Trucks, Inc., sold its Allentown, Pennsylvania, branch to
petitioner Allentown Mack Sales & Service, Inc. Allentown
thereafter operated as an independent dealership, employing 32 of
the original 45 Mack employees. Although the Mack branch's service
and parts employees had been represented by Local Lodge 724 of the
machinists' union, a number of Mack employees suggested to the new
owners, both before and immediately after the sale, that the union
had lost their support or the support of bargaining-unit members
generally. Allentown refused Local 724's request for recognition
and for commencement of collective-bargaining negotiations,
claiming a good-faith reasonable doubt as to the union's support;
it later arranged an independent poll of the employees, who voted
19 to 13 against the union. The union then filed an
unfair-labor-practice charge with the National Labor Relations
Board. Under longstanding Board precedent, an employer who
entertains a good-faith reasonable doubt whether a majority of its
employees supports an incumbent union has three options: to request
a formal, Board-supervised election, to withdraw recognition from
the union and refuse to bargain, or to conduct an internal poll of
employee support for the union. The Administrative Law Judge (ALJ)
held,
inter alia, that because Allentown lacked an
"objective reasonable doubt" about Local 724's majority status, the
poll violated §§ 8(a)(I) and 8(a)(5) of the National Labor
Relations Act. The Board agreed and ordered petitioner to recognize
and bargain with the union. The Court of Appeals enforced the
order.
Held: The Board's "good-faith reasonable doubt" test for
employer polling is facially rational and consistent with the Act,
but its factual finding that Allentown lacked such a doubt is not
supported by substantial evidence on the record as a whole. Pp.
363-380.
(a) This Court rejects Allentown's contention that, because the
"good-faith reasonable doubt" standard for polls is the same as the
standard for unilateral withdrawal of recognition and for employer
initiation of a Board-supervised election, the Board irrationally
permits employers to poll only when it would be unnecessary and
legally pointless to do so. While the Board's adoption of this
unitary standard is in some respects puzzling, it is not so
irrational as to be "arbitrary [or] capri-
360
360 ALLENTOWN MACK SALES & SERVICE, INC.
v. NLRB
Syllabus
cious" under the Administrative Procedure Act. Although it makes
polling useless as a means of insulating withdrawal of recognition
against an unfair-labor-practice charge, there are other reasons
why an employer would wish to conduct a poll. Similarly, although
the Board's avowed preference for Board-supervised elections over
polls should logically produce a more rigorous standard for
polling, there are other reasons why that standard ought to be
less rigorous; since it would be rational to set the polling
standard either higher or lower than the threshold for a
Board-supervised election, it is not irrational for the Board to
split the difference. Pp. 363-366.
(b) On the evidence presented, a reasonable jury could not have
found that Allentown lacked a "good-faith reasonable doubt" about
whether Local 724 enjoyed continuing employee support. The Board's
contrary finding rests on a refusal to credit probative
circumstantial evidence, and on evidentiary demands that go beyond
the substantive standard the Board purports to apply. Accepting the
Board's concession that Allentown did receive reliable information
that 7 of the 32 bargaining-unit employees did not support the
union, the remaining 25 would have had to support the union by a
margin of 17 to 8-a ratio of more than 2 to I-if the union
commanded majority support. The statements of various employees
proffered by Allentown would cause anyone to doubt that degree of
support, and neither the Board nor the AL J discussed any evidence
that Allentown should have weighed on the other side. The Board
cannot covertly transform its presumption of continuing majority
support into a working assumption that
all of a successor's
employees support the union until proved otherwise. Pp.
366-371.
(c) This Court need not determine whether, as Allentown asserts,
the Board has consistently rejected or discounted similarly
probative evidence in prior cases. Such a practice could not cause
"good-faith reasonable doubt" to mean something more than what the
phrase connotes, or render irrelevant to the Board's decision any
evidence that tends to establish the existence of a good-faith
reasonable doubt. Pp. 372-380.
83 F.3d
1483, reversed and remanded.
SCALIA, J., delivered the opinion for a unanimous Court with
respect to Part I, the opinion of the Court with respect to Part
II, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined,
and the opinion of the Court with respect to Parts III and IV, in
which REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ.,
joined. REHNQUIST, C. J., filed an opinion concurring in part and
dissenting in part, in which O'CONNOR, KENNEDY, and THOMAS, JJ.,
joined,
post, p. 380. BREYER, J., filed an opinion
concurring in part and dissenting in part, in which STEVENS,
SOUTER, and GINSBURG, JJ., joined,
post, p. 388.
361
Stephen D. Shawe argued the cause for petitioner. With
him on the briefs were
Earle K. Shawe and
Eric
Hemmendinger.
Jonathan E. Nuechterlein argued the cause for respondent. With
him on the brief were Acting Solicitor General Dellinger, Deputy
Solicitor General Wallace, Linda Sher, Norton
J. Come, and
John Emad Arbab.
*
JUSTICE SCALIA delivered the opinion of the Court. Under
longstanding precedent of the National Labor Relations Board, an
employer who believes that an incumbent union no longer enjoys the
support of a majority of its employees has three options: to
request a formal, Board-supervised election, to withdraw
recognition from the union and refuse to bargain, or to conduct an
internal poll of employee support for the union. The Board has held
that the latter two are unfair labor practices unless the employer
can show that it had a "good-faith reasonable doubt" about the
union's majority support. We must decide whether the Board's
standard for employer polling is rational and consistent with the
National Labor Relations Act, and whether the Board's factual
determinations in this case are supported by substantial evidence
in the record.
I
Mack Trucks, Inc., had a factory branch in Allentown,
Pennsylvania, whose service and parts employees were represented by
Local Lodge 724 of the International Association
*Briefs of
amici curiae urging reversal were filed for
the Chamber of Commerce of the United States by
John S.
Irving, Christopher Landau, Stephen A. Bokat, Robin S.
Conrad, and
Mona C.
Zeiberg; for the American
Trucking Associations, Inc., by
James D. Holzhauer, Timothy
S.
Bishop, and
Daniel R. Barney; and for the Labor
Policy Association by
Robert E. Williams and
Daniel V.
Yager.
Laurence Gold, Jonathan P. Hiatt, and
Marsha S.
Berzon filed a brief for the American Federation of Labor
and Congress of Industrial Organizations as
amicus curiae
urging affirmance.
362
362 ALLENTOWN MACK SALES & SERVICE, INC.
v. NLRB
of Machinists and Aerospace Workers, AFL-CIO (Local 724). Mack
notified its Allentown managers in May 1990 that it intended to
sell the branch, and several of those managers formed Allentown
Mack Sales & Service, Inc., the petitioner here, which
purchased the assets of the business on December 20, 1990, and
began to operate it as an independent dealership. From December 21,
1990, to January 1, 1991, Allentown hired 32 of the original 45
Mack employees.
During the period before and immediately after the sale, a
number of Mack employees made statements to the prospective owners
of Allentown Mack Sales suggesting that the incumbent union had
lost support among employees in the bargaining unit. In job
interviews, eight employees made statements indicating, or at least
arguably indicating, that they personally no longer supported the
union. In addition, Ron Mohr, a member of the union's bargaining
committee and shop steward for the Mack Trucks service department,
told an Allentown manager that it was his feeling that the
employees did not want a union, and that "with a new company, if a
vote was taken, the Union would lose." 316 N. L. R. B. 1199, 1207
(1995). And Kermit Bloch, who worked for Mack Trucks as a mechanic
on the night shift, told a manager that the entire night shift
(then five or six employees) did not want the union.
On January 2,1991, Local 724 asked Allentown Mack Sales to
recognize it as the employees' collective-bargaining
representative, and to begin negotiations for a contract. The new
employer rejected that request by letter dated January 25, claiming
a "good faith doubt as to support of the Union among the
employees."
Id., at 1205. The letter also announced that
Allentown had "arranged for an independent poll by secret ballot of
its hourly employees to be conducted under guidelines prescribed by
the National Labor Relations Board."
Ibid. The poll,
supervised by a Roman Catholic priest, was conducted on February 8,
1991; the union lost 19
363
to 13. Shortly thereafter, the union filed an
unfair-Iabor-practice charge with the Board.
The Administrative Law Judge (ALJ) concluded that Allentown was
a "successor" employer to Mack Trucks, Inc., and therefore
inherited Mack's bargaining obligation and a presumption of
continuing majority support for the union.
Id., at 1203. The
ALJ held that Allentown's poll was conducted in compliance with the
procedural standards enunciated by the Board in
Struksnes
Constr. Co., 165 N. L. R. B. 1062 (1967), but that it violated
§§ 8(a)(1) and 8(a) (5) of the National Labor Relations Act (Act),
49 Stat. 452, as amended, 29 U. S. C. §§ 158(a)(1) and 158(a)(5),
because Allentown did not have an "objective reasonable doubt"
about the majority status of the union. The Board adopted the ALJ's
findings and agreed with his conclusion that Allentown "had not
demonstrated that it harbored a reasonable doubt, based on
objective considerations, as to the incumbent Union's continued
majority status after the transition." 316 N. L. R. B., at 1199.
The Board ordered Allentown to recognize and bargain with Local
724.
On review in the Court of Appeals for the District of Columbia
Circuit, Allentown challenged both the facial rationality of the
Board's test for employer polling and the Board's application of
that standard to the facts of this case. The court enforced the
Board's bargaining order, over a vigorous dissent.
83 F.3d
1483 (1996). We granted certiorari. 520 U. S. 1103 (1997).
II
Allentown challenges the Board's decision in this case on
several grounds. First, it contends that because the Board's
"reasonable doubt" standard for employer polls is the same as its
standard for unilateral withdrawal of recognition and for employer
initiation of a Board-supervised election (a so-called
"Representation Management," or "RM," election), the Board
irrationally permits employers to poll only when it would be
unnecessary and legally pointless to do so. Sec-
364
364 ALLENTOWN MACK SALES & SERVICE, INC.
v. NLRB
ond, Allentown argues that the record evidence clearly
demonstrates that it had a good-faith reasonable doubt about the
union's claim to majority support. Finally, it asserts that the
Board has,
sub silentio (and presumably in violation of
law), abandoned the "reasonable doubt" prong of its polling
standard, and recognizes an employer's "reasonable doubt" only if a
majority of the unit employees renounce the union. In this Part of
our opinion we address the first of these challenges; the other
two, which are conceptually intertwined, will be addressed in Parts
III and IV.
Courts must defer to the requirements imposed by the Board if
they are "rational and consistent with the Act,"
Fall River
Dyeing &
Finishing Corp. v.
NLRB, 482 U. S. 27, 42 (1987),
and if the Board's "explication is not inadequate, irrational or
arbitrary,"
NLRB v.
Erie Resistor Corp., 373 U. S. 221, 236
(1963). Allentown argues that it is irrational to require the same
factual showing to justify a poll as to justify an outright
withdrawal of recognition, because that leaves the employer with no
legal incentive to poll. Under the Board's framework, the results
of a poll can never supply an otherwise lacking "good-faith
reasonable doubt" necessary to justify a withdrawal of recognition,
since the employer must already have that same reasonable doubt
before he is permitted to conduct a poll. Three Courts of Appeals
have found that argument persuasive.
NLRB v.
A. W
Thompson, Inc., 651 F.2d
1141, 1144 (CA5 1981); see also
Mingtree Restaurant,
Inc. v.
NLRB, 736 F.2d
1295 (CA9 1984);
Thomas Industries, Inc. v.
NLRB,
687 F.2d
863 (CA6 1982).
While the Board's adoption of a unitary standard for polling, RM
elections, and withdrawals of recognition is in some respects a
puzzling policy, we do not find it so irrational as to be
"arbitrary [or] capricious" within the meaning of the
Administrative Procedure Act, 5 U. S. C. § 706. The Board believes
that employer polling is potentially "disruptive" to established
bargaining relationships and "unsettling" to employees, and so has
chosen to limit severely the circum-
365
stances under which it may be conducted.
Texas Petrochemicals
Corp., 296 N. L. R. B. 1057, 1061 (1989), enf'd as modified,
923 F.2d
398 (CA5 1991). The unitary standard reflects the Board's
apparent conclusion that polling should be tolerated only when the
employer might otherwise simply withdraw recognition and refuse to
bargain.
It is true enough that this makes polling useless as a means of
insulating a contemplated withdrawal of recognition against an
unfair-labor-practice charge-but there is more to life (and even to
business) than escaping unfair-labor-practice findings. An employer
concerned with good employee relations might recognize that abrupt
withdrawal of recognition-even from a union that no longer has
majority support-will certainly antagonize union supporters, and
perhaps even alienate employees who are on the fence. Preceding
that action with a careful, unbiased poll can prevent these
consequences. The "polls are useless" argument falsely assumes,
moreover, that every employer will
want to withdraw
recognition as soon as he has enough evidence of lack of union
support to defend against an unfair-Iabor-practice charge. It seems
to us that an employer whose evidence met the "good-faith
reasonable doubt" standard might nonetheless want to withdraw
recognition only if he had conclusive evidence that the union
in
fact lacked majority support, lest he go through the time and
expense of an (ultimately victorious) unfair-labor-practice suit
for a benefit that will only last until the next election. See
Texas Petrochemicals, supra, at 1063. And finally, it is
probably the case that, though the standard for conviction of an
unfair labor practice with regard to polling is identical to the
standard with regard to withdrawal of recognition, the chance that
a charge will be filed is significantly less with regard to the
polling, particularly if the union wins.
It must be acknowledged that the Board's avowed preference for
RM elections over polls fits uncomfortably with its unitary
standard; as the Court of Appeals pointed out, that
366
366 ALLENTOWN MACK SALES & SERVICE, INC.
v. NLRB
preference should logically produce a more rigorous standard for
polling. 83 F. 3d, at 1487. But there are other reasons why the
standard for polling ought to be
less rigorous than the
standard for Board elections. For one thing, the consequences of an
election are more severe: If the union loses an employer poll it
can still request a Board election, but if the union loses a formal
election it is barred from seeking another for a year. See 29 U. S.
C. § 159(c)(3). If it would be rational for the Board to set the
polling standard either higher or lower than the threshold for an
RM election, then surely it is not irrational for the Board to
split the difference.
III
The Board held Allentown guilty of an unfair labor practice in
its conduct of the polling because it "ha[d] not demonstrated that
it held a reasonable doubt, based on objective considerations, that
the Union continued to enjoy the support of a majority of the
bargaining unit employees." 316 N. L. R. B., at 1199. We must
decide whether that conclusion is supported by substantial evidence
on the record as a whole.
Fall River Dyeing, supra, at 42;
Universal Camera Corp. v.
NLRB, 340 U. S. 474 (1951).1
Put differently, we must decide whether on this record it would
have been pos-
IJUSTICE BREYER'S opinion asserts that this issue is not
included within the question presented by the petition.
Post, at 388 (opinion concurring in part and dissenting in
part). The question reads: ''Whether the National Labor Relations
Board erred in holding that a successor employer cannot conduct a
poll to determine whether a majority of its employees support a
union unless it already has obtained so much evidence of no
majority support as to render the poll meaningless." Pet. for Cert.
i. The phrase "so much ... as to render the poll meaningless" is of
course conclusory and argumentative. Fairly read, the question asks
whether the Board erred by requiring
too much evidence of
majority support. That question can be answered in the affirmative
if either (1) the Board's polling standard is irrational or
inconsistent with the Act, or (2) the Board erroneously found that
the evidence in this case was insufficient to meet that
standard.
367
sible for a reasonable jury to reach the Board's conclusion.
See,
e. g., NLRB v.
Columbian Enameling &
Stamping Co., 306 U. S. 292, 300
(1939);
Consolidated Edison Co. v.
NLRB, 305 U. S. 197, 229
(1938).
Before turning to that issue, we must clear up some semantic
confusion. The Board asserted at argument that the word "doubt" may
mean either "uncertainty" or "disbelief," and that its polling
standard uses the word only in the latter sense. We cannot accept
that linguistic revisionism. "Doubt" is precisely that sort of
"disbelief" (failure to believe) which consists of an uncertainty
rather than a belief in the opposite. If the subject at issue were
the existence of God, for example, "doubt" would be the disbelief
of the agnostic, not of the atheist. A doubt is an uncertain,
tentative, or provisional disbelief. See,
e. g.,
Webster's New International Dictionary 776 (2d ed. 1949) (def. 1:
"A fluctuation of mind arising from defect of knowledge or
evidence; uncertainty of judgment or mind; unsettled state of
opinion concerning the reality of an event, or the truth of an
assertion, etc."); 1 The New Shorter Oxford English Dictionary 734
(1993) (def. 1: "Uncertainty as to the truth or reality of
something or as to the wisdom of a course of action; occasion or
room for uncertainty"); American Heritage Dictionary 555 (3d ed.
1992) (def. 1: "A lack of certainty that often leads to
irresolution").
The question presented for review, therefore, is whether, on the
evidence presented to the Board, a reasonable jury could have found
that Allentown lacked a genuine, reasonable uncertainty about
whether Local 724 enjoyed the continuing support of a majority of
unit employees.2 In our
2JU8TICE BREYER suggests that we have focused on the wrong
words, and that the explanation for the Board's holding here is not
that portion of its polling standard which requires "reasonable
doubt" but that which requires the doubt to be "based on objective
considerations." The Board has not stressed the word "objective" in
its brief or argument, for the very
368
368 ALLENTOWN MACK SALES & SERVICE, INC.
v. NLRB
view, the answer is no. The Board's finding to the contrary
rests on a refusal to credit probative circumstantial evidence, and
on evidentiary demands that go beyond the substantive standard the
Board purports to apply.
The Board adopted the ALJ's finding that 6 of Allentown's 32
employees had made "statements which could be used as objective
considerations supporting a good-faith reasonable doubt as to
continued majority status by the Union." 316 N. L. R. B., at 1207.
(These included, for example, the statement of Rusty Hoffman that
"he did not want to work in a union shop," and "would try to find
another job if he had to work with the Union."
Id., at
1206.) The Board seemingly also accepted (though this is not
essential to our analysis) the ALJ's willingness to assume that the
statement of a seventh employee (to the effect that he "did not
feel comfortable with the Union and thought it was a waste of $35 a
month,"
ibid.) supported good-faith reasonable doubt of his
support for the union-as in our view it unquestionably does. And it
presumably accepted the ALJ's assessment that "7 of 32, or roughly
20 percent of the involved employees" was not alone sufficient to
create "an objective reasonable doubt of union majority support,"
id., at 1207. The Board did not specify
good reason that the meaning of the word has nothing to do with
the
force, as opposed to the
source, of the
considerations supporting the employer's doubt. See Webster's New
International Dictionary 1679 (2d ed. 1949) (def. 2: "Emphasizing
or expressing the nature of reality as it is apart from
self-consciousness"). Requiring the employer's doubt to be based on
"objective" considerations reinforces the requirement that the
doubt be "reasonable," imposing on the employer the burden of
showing that it was supported by evidence external to the
employer's own
(subjective) impressions. JUSTICE BREYER
asserts, instead, that the word "objective" has been redefined
through a series of Board decisions ignoring its real meaning, so
that it now means something like "exceedingly reliable." As we
shall discuss in Part IV, the Board is entitled to create higher
standards of evidentiary proof by rule, or even by explicit
announcement in adjudication (assuming adequate warning); but when
the Board simply repeatedly finds evidence not "objective" that is
so, its decisions have no permanent deleterious effect upon the
English language.
369
how many express disavowals would have been enough to establish
reasonable doubt, but the number must presumably be less than 16
(half of the bargaining unit), since that would establish
reasonable
certainty. Still, we would not say that 20%
first-hand-confirmed opposition (even with no countering evidence
of union support) is alone enough to
require a conclusion of
reasonable doubt. But there was much more.
For one thing, the ALJ and the Board totally disregarded the
effect upon Allentown of the statement of an eighth employee,
Dennis Marsh, who said that "he was not being represented for the
$35 he was paying."
Ibid. The ALJ, whose findings were
adopted by the Board, said that this statement "seems more an
expression of a desire for better representation than one for no
representation at all."
Ibid. It seems to us that it is,
more accurately, simply an expression of dissatisfaction with the
union's performance-which
could reflect the speaker's desire
that the union represent him more effectively, but
could
also reflect the speaker's desire to save his $35 and get rid
of the union. The statement would assuredly engender an
uncertainty whether the speaker supported the union, and so
could not be entirely ignored.
But the most significant evidence excluded from consideration by
the Board consisted of statements of two employees regarding not
merely their own support of the union, but support among the work
force in general. Kermit Bloch, who worked on the night shift, told
an Allentown manager that "the entire night shift did not want the
Union."
Ibid. The ALJ refused to credit this, because "Bloch
did not testify and thus could not explain how he formed his
opinion about the views of his fellow employees."
Ibid.
Unsubstantiated assertions that other employees do not support the
union certainly do not establish
the fact of that disfavor
with the degree of reliability ordinarily demanded in legal
proceedings. But under the Board's enunciated test for polling, it
is not the fact of disfavor that is at issue (the poll itself is
meant to establish that), but rather the existence of a reason-
370
370 ALLENTOWN MACK SALES & SERVICE, INC.
v. NLRB
able uncertainty on the part of the employer regarding that
fact. On that issue, absent some reason for the employer to know
that Bloch had no basis for his information, or that Bloch was
lying, reason demands that the statement be given considerable
weight.
Another employee who gave information concerning overall support
for the union was Ron Mohr, who told Allentown managers that "if a
vote was taken, the Union would lose" and that "it was his feeling
that the employees did not want a union."
Ibid. The ALJ
again objected irrelevantly that "there is no evidence with respect
to how he gained this knowledge."
Id., at 1208. In addition,
the Board held that Allentown "could not legitimately rely on [the
statement] as a basis for doubting the Union's majority status,"
id., at 1200, because Mohr was "referring to Mack's existing
employee complement, not to the individuals who were later hired by
[Allentown],"
ibid. This basis for disregarding Mohr's
statements is wholly irrational.3 Local 724 had never won an
election, or even an informal poll, within the actual unit of 32
Allentown employees. I ts claim to represent them rested entirely
on the Board's presumption that the work force of a successor
company has the same disposition regarding the union as did the
work force of the predecessor company, if the majority of the new
work force came from the old one. See
id., at 1197, n. 3;
Fall River Dyeing, 482 U. S., at 43, 46-52. The Board cannot
rationally adopt that presumption for purposes of imposing the duty
to bargain, and adopt precisely the opposite presumption (i.
e., contend that there is no relationship between the
sentiments of the two work forces) for purposes of determining what
evidence tends to establish a reasonable doubt regarding union
support. Such
3JUSTICE BREYER points out that the ALJ did not disregard Mohr's
statement entirely, but merely found that it was insufficient to
establish a good-faith reasonable doubt. That observation is
accurate but irrelevant. The Board discussed Mohr's statement in
its own opinion, and the language quoted above makes it clear that
the Board gave it no weight at all.
371
irrationality is impermissible even if, as JUSTICE BREYER
suggests, it would further the Board's political objectives.
It must be borne in mind that the issue here is not whether
Mohr's statement clearly establishes a majority in opposition to
the union, but whether it contributes to a reasonable uncertainty
whether a majority in favor of the union existed. We think it
surely does. Allentown would reasonably have given great credence
to Mohr's assertion of lack of union support, since he was not
hostile to the union, and was in a good position to assess
antiunion sentiment. Mohr was a union shop steward for the service
department, and a member of the union's bargaining committee;
according to the ALJ, he "did not indicate personal dissatisfaction
with the Union." 316 N. L. R. B., at 1208. It seems to us that
Mohr's statement has undeniable and substantial probative value on
the issue of "reasonable doubt."
Accepting the Board's apparent (and in our view inescapable)
concession that Allentown received reliable information that 7 of
the bargaining-unit employees did not support the union, the
remaining 25 would have had to support the union by a margin of 17
to 8-a ratio of more than 2 to i-if the union commanded majority
support. The statements of Bloch and Mohr would cause anyone to
doubt that degree of support, and neither the Board nor the ALJ
discussed any evidence that Allentown should have weighed on the
other side. The most pro-union statement cited in the ALJ's opinion
was Ron Mohr's comment that he personally "could work with or
without the Union," and "was there to do his job."
Id., at
1207. The Board cannot covertly transform its presumption of
continuing majority support into a working assumption that
all of a successor's employees support the union until
proved otherwise. Giving fair weight to Allentown's circumstantial
evidence, we think it quite impossible for a rational factfinder to
avoid the conclusion that Allentown had reasonable, good-faith
grounds to doubt-to be
uncertain about-the union's
retention of majority support.
372
372 ALLENTOWN MACK SALES & SERVICE, INC.
v. NLRB
IV
That conclusion would make this a fairly straightforward
administrative-law case, except for the contention that the Board's
factfinding here was not an aberration. Allentown asserts that,
although "the Board continues to cite the words of the good faith
doubt branch of its withdrawal of recognition standard," a
systematic review of the Board's decisions will reveal that "it has
in practice eliminated the good faith doubt branch in favor of a
strict head count." Brief for Petitioner 10. The Board denies (not
too persuasively) that it has insisted upon a strict head count,4
but does defend its factfinding in this case by saying that it has
regularly rejected similarly persuasive demonstrations of
reasonable good-faith doubt in prior decisions. The Court of
Appeals in fact accepted that defense, relying on those earlier,
similar decisions to conclude that the Board's findings were
supported by substantial evidence here. See 83 F. 3d, at 1488. That
the current decision may conform to a long pattern is also
suggested by academic commentary. One scholar, after conducting
"[a] thorough review of the withdrawal of recognition case law,"
concluded:
"[C]ircumstantial evidence, no matter how abundant, is rarely,
if ever, enough to satisfy the good-faith doubt test. In practice,
the Board deems the test satisfied only if the employer has proven
that a majority of the bargaining unit has expressly repudiated the
union. Such direct evidence, however, is nearly impossible to
gather lawfully. Thus, the Board's good-faith doubt
4 The Board cited in its brief a number of cases in which it
found circumstantial evidence sufficient to support a "good-faith
reasonable doubt." See Brief for Respondent 31-32, n. 8. Those
cases do indeed reveal a genuine interest in circumstantial
evidence, but the most recent of them,
J &
J
Drainage Products Co., 269 N. L. R. B. 1163 (1984), was decided
more than a decade ago. Allentown contends that the Board has
abandoned the good-faith-doubt test, not that it never
existed.
373
standard, although ostensibly a highly fact-dependent
totality-of-the-circumstances test, approaches a per se rule
in application .... " Flynn, The Costs and Benefits of "Hiding the
Ball": NLRB Policymaking and the Failure of Judicial Review, 75 B.
U. L. Rev. 387, 394-395 (1995) (footnotes omitted).
See also Weeks, The Union's Mid-Contract Loss of Majority
Support: A Waivering Presumption, 20 Wake Forest L. Rev. 883, 889
(1984). Members of this Court have observed the same phenomenon.
See
NLRB v.
Curtin Matheson Scientific, Inc.,
494 U. S. 775,
797 (1990) (REHNQUIST, C. J., concurring) ("[S]ome recent decisions
suggest that [the Board] 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");
id., at 799 (Blackmun, J.,
dissenting) ("[T]he Board appears to require that good-faith doubt
be established by express avowals of individual employees").
It is certainly conceivable that an adjudicating agency might
consistently require a particular substantive standard to be
established by a quantity or character of evidence so far beyond
what reason and logic would require as to make it apparent that the
announced standard is not
really the effective one.
And it is conceivable that in certain categories of cases an
adjudicating agency which purports to be applying a preponderance
standard of proof might so consistently demand in fact more than a
preponderance, that all should be on notice from its case law that
the genuine burden of proof is more than a preponderance. The
question arises, then, whether, if that should be the situation
that obtains here, we ought to measure the evidentiary support for
the Board's decision against the standards consistently applied
rather than the standards recited. As a theoretical matter (and
leaving aside the question of legal authority), the Board could
certainly have raised the bar for employer polling or
374
374 ALLENTOWN MACK SALES & SERVICE, INC.
v. NLRB
withdrawal of recognition by imposing a more stringent
requirement than the reasonable-doubt test, or by adopting a formal
requirement that employers establish their reasonable doubt by more
than a preponderance of the evidence. Would it make any difference
if the Board achieved precisely the same result by formally leaving
in place the reasonabledoubt and preponderance standards, but
consistently applying them as though they meant something other
than what they say? We think it would.
The Administrative Procedure Act, which governs the proceedings
of administrative agencies and related judicial review, establishes
a scheme of "reasoned decisionmaking."
Motor Vehicle Mfrs. Assn.
of United States, Inc. v.
State Farm Mut. Automobile Ins.
Co., 463 U. S.
29, 52 (1983). Not only must an agency's decreed result be
within the scope of its lawful authority, but the process by which
it reaches that result must be logical and rational. Courts enforce
this principle with regularity when they set aside agency
regulations which, though well within the agencies' scope of
authority, are not supported by the reasons that the agencies
adduce. See
SEC v.
Chenery Corp., 318 U. S. 80 (1943);
SEC v.
Chenery Corp., 332 U. S. 194 (1947). The
National Labor Relations Board, uniquely among major federal
administrative agencies, has chosen to promulgate virtually all the
legal rules in its field through adjudication rather than
rulemaking. See,
e. g., NLRB v.
Bell Aerospace Co.,
416 U. S.
267,294-295 (1974). (To our knowledge, only one regulation has
ever been adopted by the Board, dealing with the appropriate size
of bargaining units in the health care industry. See 29 CFR §
103.30 (1997).) But adjudication is subject to the requirement of
reasoned decisionmaking as well. It is hard to imagine a more
violent breach of that requirement than applying a rule of primary
conduct or a standard of proof which is in fact different from the
rule or standard formally announced. And the consistent repetition
of that breach can hardly mend it.
375
Reasoned decisionmaking, in which the rule announced is the rule
applied, promotes sound results, and unreasoned decisionmaking the
opposite. The evil of a decision that applies a standard other than
the one it enunciates spreads in both directions, preventing both
consistent application of the law by subordinate agency personnel
(notably ALJ's), and effective review of the law by the courts.
These consequences are well exemplified by a recent
withdrawal-of-recognition case in which the Board explicitly
reaffirmed its adherence to the preponderance-of-the-evidence
standard. One of the Board's ALJ's, interpreting the agency's prior
cases as many others have, had concluded that the Board in fact
required "'clear, cogent, and convincing'" evidence that the union
no longer commanded a majority.
Laidlaw Waste Systems, Inc.,
307 N. L. R. B. 1211 (1992). On review the Board rejected that
standard, insisting that "in order to rebut the presumption of an
incumbent union's majority status, an employer must show by a
preponderance of the evidence ... objective factors sufficient to
support a reasonable and good-faith doubt of the union's majority."
Ibid. So far, so good. The Board then went on to add,
however, that "[t]his is not to say that the terms 'clear, cogent,
and convincing' have no significance at all in withdrawal of
recognition cases."
Ibid. It then proceeded to make the
waters impenetrably muddy with the following:
"It is fair to say that the Board will not find that an employer
has supported its defense by a preponderance of the evidence if the
employee statements and conduct relied on are not clear and cogent
rejections of the union as a bargaining agent, i. e., are simply
not convincing manifestations, taken as a whole, of a loss of
majority support. The opposite of 'clear, cogent, and convincing'
evidence in this regard might be fairly described as 'speculative,
conjectural, and vague'-evidence that plainly does not meet the
preponderance-of-the-evidence burden of proof." Id., at
1211-1212.
376
376 ALLENTOWN MACK SALES & SERVICE, INC.
v. NLRB
Each sentence of this explanation is nonsense, and the two
sentences together are not even compatibly nonsensical.
"Preponderance of the evidence" and "clear and convincing evidence"
describe well known, contrasting standards of proof. To say, as the
first sentence does, that a preponderance standard demands "clear
and convincing manifestations, taken as a whole" is to convert that
standard into a higher one; and to say, as the second sentence
does, that whatever is not "speculative, conjectural, and vague"
meets the "clear, cogent, and convincing" standard is to reconvert
that standard into a lower one. And the offsetting errors do not
produce rationality but compounded confusion. If the Board's
application of the preponderance standard is indeed accurately
described by this passage, it is hard for the ALJ to know what to
do with the next case.
A case like
Laidlaw, or a series of cases that exemplify
in practice its divorcing of the rule announced from the rule
applied, also frustrates judicial review. If revision of the
Board's standard of proof can be achieved thus subtly and
obliquely, it becomes a much more complicated enterprise for a
court of appeals to determine whether substantial evidence supports
the conclusion that the required standard has or has not been met.
It also becomes difficult for this Court to know, when certiorari
is sought, whether the case involves the generally applicable issue
of the Board's adoption of an unusually high standard of proof, or
rather just the issue of an allegedly mistaken evidentiary judgment
in the particular case. An agency should not be able to impede
judicial review, and indeed even political oversight, by disguising
its policymaking as factfinding.
Because reasoned decisionmaking demands it, and because the
systemic consequences of any other approach are unacceptable, the
Board must be required to apply in fact the clearly understood
legal standards that it enunciates in principle, such as good-faith
reasonable doubt and preponderance of the evidence. Reviewing
courts are entitled to
377
take those standards to mean what they say, and to conduct
substantial-evidence review on that basis. Even the most consistent
and hence predictable Board departure from proper application of
those standards will not alter the legal rule by which the agency's
factfinding is to be judged.
That principle is not, as JUSTICE BREYER suggests, inconsistent
with our decisions according "substantial deference to an agency's
interpretation of its own regulations."
Thomas Jefferson
Univ. v.
Shalala, 512 U. S. 504, 512
(1994). Substantive review of an agency's interpretation of its
regulations is governed only by that general provision of the
Administrative Procedure Act which requires courts to set aside
agency action that is "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law," 5 U. S. C. §
706(2)(A). It falls well within this text to give the agency the
benefit of the doubt as to the meaning of its regulation.
On-the-record agency factfinding, however, is also governed by a
provision that requires the agency action to be set aside if it is
"unsupported by substantial evidence," § 706(2)(E)-which is the
very specific requirement at issue here. See also 29 U. S. C. §
160(e) ("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 "substantial evidence" test
itself already gives the agency the benefit of the doubt,
since it requires not the degree of evidence which satisfies the
court that the requisite fact exists, but merely the degree
which
could satisfy a reasonable factfinder. See
Columbian Enameling & Stamping Co., 306 U.
S., at 300. This is an objective test, and there is no room within
it for deference to an agency's eccentric view of what a reasonable
factfinder
ought to demand. We do not, moreover (we could
not possibly), search to find revisions of the agency's
rules-revisions of the requisite fact that the adjudication is
supposed to determinehidden in the agency's factual findings. In
the regime envisioned by JUSTICE BREYER-a regime in which
inadequate
378
378 ALLENTOWN MACK SALES & SERVICE, INC.
v. NLRB
factual findings become simply a revision of the standard that
the Board's (adjudicatorily adopted) rules set forth, thereby
converting those findings into rule interpretations to which judges
must defer-the "substantial evidence" factual review provision of
the Administrative Procedure Act becomes a nullity.
The Board can, of course, forthrightly and explicitly adopt
counterfactual evidentiary presumptions (which are in effect
substantive rules of law) as a way of furthering particular legal
or policy goals-for example, the Board's irrebuttable presumption
of majority support for the union during the year following
certification, see,
e. g., Station KKHI, 284
N. L. R. B. 1339, 1340 (1987), enf'd,
891 F.2d
230 (CA9 1989). The Board might also be justified in
forthrightly and explicitly adopting a rule of evidence that
categorically excludes certain testimony on policy grounds, without
reference to its inherent probative value. (Such clearly announced
rules of law or of evidentiary exclusion would of course be subject
to judicial review for their reasonableness and their compatibility
with the Act.) That is not the sort of Board action at issue here,
however, but rather the Board's allegedly systematic undervaluation
of certain evidence, or allegedly systematic exaggeration of what
the evidence must prove. See,
e. g., Westbrook
Bowl, 293 N. L. R. B. 1000, 1001, n. 11 (1989) ("The Board has
stated that 'testimony concerning conversations directly with the
employees involved ... is much more reliable than testimony
concerning merely a few employees ostensibly conveying the
sentiments of their fellows' "), quoting
Sofco, Inc., 268 N.
L. R. B. 159, 160, n. 10 (1983). When the Board purports to be
engaged in simple factfinding, unconstrained by substantive
presumptions or evidentiary rules of exclusion, it is not free to
prescribe what inferences from the evidence it will accept and
reject, but must draw all those inferences that the evidence fairly
demands. "Substantial evidence" review exists precisely to ensure
that the Board achieves minimal compliance with this obliga-
379
tion, which is the foundation of all honest and legitimate
adjudication.
For the foregoing reasons, we need not determine whether the
Board has consistently rejected or discounted probative evidence so
as to cause "good-faith reasonable doubt" or "preponderance of the
evidence" to mean something more than what the terms connote. The
line of precedents relied on by the ALJ and the Court of Appeals
could not render irrelevant to the Board's decision, and hence to
our review, any evidence that tends to establish the existence of a
good-faith reasonable doubt. It was therefore error, for example,
for the ALJ to discount Ron Mohr's opinion about lack of union
support because of "the Board's historical treatment of unverified
assertions by an employee about another employee's sentiments." 316
N. L. R. B., at 1208. And it was error for the Court of Appeals to
rely upon the fact that "[t]he Board has consistently questioned
the reliability of reports by one employee of the antipathy of
other employees toward their union." 83 F. 3d, at 1488, citing
Westbrook Bowl, supra, at 1001, n. 11;
Sofco, Inc.,
supra, at 160, n. 10. Assuming that those assessments of the
Board's prior behavior are true, they nonetheless provide no
justification for the Board's factual inferences here. Of course,
the Board is entitled to be skeptical about the employer's claimed
reliance on secondhand reports when the reporter has little basis
for knowledge, or has some incentive to mislead. But that is a
matter of logic and sound inference from all the circumstances, not
an arbitrary rule of disregard to be extracted from prior Board
decisions.
The same is true of the Board precedents holding that "an
employee's statements of dissatisfaction with the quality of union
representation may not be treated as opposition to union
representation," and that "an employer may not rely on an
employee's anti-union sentiments, expressed during a job interview
in which the employer has indicated that there will be no union."
83 F. 3d, at 1488, citing
Destileria Ser-
380
380 ALLENTOWN MACK SALES & SERVICE, INC.
v. NLRB
Opinion of REHNQUIST, C. J.
ralles, Inc., 289 N. L. R. B. 51 (1988), enf'd,
882 F.2d
19 (CA1 1989), and
Middleboro Fire Apparatus, Inc., 234
N. L. R. B. 888, 894, enf'd,
590 F.2d
4 (CA1 1978). It is of course true that such statements are not
clear evidence of an employee's opinion about the union-and if the
Board's substantive standard required clear proof of employee
disaffection, it might be proper to ignore such statements
altogether. But that is not the standard, and, depending on the
circumstances, the statements can unquestionably be probative to
some degree of the employer's good-faith reasonable doubt.
***
We conclude that the Board's "reasonable doubt" test for
employer polls is facially rational and consistent with the Act.
But the Board's factual finding that Allentown Mack Sales lacked
such a doubt is not supported by substantial evidence on the record
as a whole. The judgment of the Court of Appeals for the District
of Columbia Circuit is therefore reversed, and the case is remanded
with instructions to deny enforcement.
It is so ordered.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE O'CONNOR, JUSTICE
KENNEDY, and JUSTICE THOMAS join, concurring in part and dissenting
in part.
I concur in the judgment of the Court and in Parts I, III, and
1\1. However, I disagree that the National Labor Relations Board's
standard is rational and consistent with the National Labor
Relations Act, and I therefore dissent as to Part II.
The Board's standard for employer polls requires a showing of
reasonable doubt, based on sufficient objective considerations,
that the union continues to enjoy majority support.
Texas
Petrochemicals Corp., 296 N. L. R. B. 1057, 1061 (1989), enf'd
as modified,
923 F.2d
398 (CA5 1991);
Auciello Iron Works, Inc. v.
NLRB, 517 U.
S. 781, 786-787 (1996);
381
NLRB v.
Curtin Matheson Scientific, Inc., 494 U. S. 775, 778
(1990). While simply stated, what this rule means in practice is
harder to pin down. As suggested by the Court's opinion,
ante, at 371-373, despite its billing as a "good-faith
reasonable doubt" standard, this test appears to be quite rigorous.
The Board so concedes: "It is true that the Board's 'reasonable
doubt' standard is sufficiently rigorous and fact-specific that
employers often cannot be certain in advance whether their
evidentiary basis either for taking a poll or for withdrawing
recognition will ultimately be deemed to have met that standard."
Brief for Respondent 38.
The Board's standard is sufficiently stringent so as to exclude
most circumstantial evidence (and quite a bit of direct evidence)
from consideration and therefore to preclude polling except in
extremely limited circumstances-ironically, those in which a poll
has almost no practical value. It requires as a prerequisite to
questioning a union's majority support that the employer have
information that it is forbidden to obtain by the most effective
method. See
Curtin Matheson, supra, at 797 (REHNQUIST, C.
J., concurring) ("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"); 494 U. S., at 799, and n. 3
(Blackmun, J., dissenting). The Board's argument that polls are
still valuable in ensuring that the union lacks majority support
in fact, effectively concedes that polls will have only
extremely limited scope. The Board's standard also leaves little
practical value for employers in polling, since a losing union can
ex post challenge a poll on the same grounds as a withdrawal
of recognition, as happened here.
The Board argues first that its employer polling standard is
authorized by, and consistent with, the Act because it promotes the
overriding goal of industrial peace. Polling purportedly threatens
industrial peace because it "raises si-
382
382 ALLENTOWN MACK SALES & SERVICE, INC.
v. NLRB
Opinion of REHNQUIST, C. J.
multaneously a challenge to the union in its role as
representative and a doubt in the mind of an employee as to the
union's status as his bargaining representative."
Texas
Petrochemicals, supra, at 1061-1062; Brief for Respondent 27.
This threatened disruption to the stability of the bargaining
relationship and the unsettling effect on employees, it is argued,
impair employee rights to bargain collectively. The Board also
asserts that its employer polling standard may be the same as the
standard for unilateral withdrawals of recognition, and yet be
rational, because it still allows the employer to use polls to
confirm a loss of majority support for the union before withdrawal
of recognition. And the same standard for Representative Management
(RM) elections is valid, the Board claims, because RM elections and
polling have common practical and legal consequences. See
Texas
Petrochemicals, supra, at 1060; Brief for Respondent 36-37, n.
12.
I think the Board's reasoning comes up short on two counts.
First, there is no support in the language of the Act for its
treatment of polling, and second, its treatment of polling even
apart from the statute is irrational.
The Act does not address employer polling. The Board's authority
to regulate employer polling at all must therefore rest on its
power to prohibit any practices that "interfere with, restrain, or
coerce employees in the exercise" of their right to bargain
collectively under § 8(a)(1), 29 U. S. c. § 158(a)(1).1 The Board
fails to demonstrate how employer polling, conducted in accord with
procedural safeguards and with no overt coercion or threats of
reprisal, violates
1 The Board argues in the alternative that its standard is
authorized by § 8(a)(5), even though a violation of that section
was not alleged in this case. But the Board provides no explanation
as to how the authority it is granted or the protection extended
employees under § 8(a)(5) differs from that of § 8(a)(1). Section
8(a)(5) states: "It shall be an unfair labor practice for an
employer-(5) to refuse to bargain collectively with the
representatives of his employees .... " 29 U. S. C. §
158(a)(5).
383
the terms of the Act. Such polling does not directly restrain
employees' rights to bargain collectively or affect the
collective-bargaining relationship. If the union loses the poll,
its status as collective-bargaining representative would certainly
be affected, but that outcome is not necessarily one the Act
prevents. That a poll may raise "doubts" in the minds of employees
as to the union's support would not appear to interfere with
employees' rights, particularly since a poll is permissible only
once the presumption of majority support becomes rebuttable. See
Fall River Dyeing & Finishing Corp. v.
NLRB, 482 U. S.
27, 37-38 (1987) (recognizing the nonrebuttable presumption of
majority support for one year after certification). And such
"doubts" hardly appear so unsettling for employees or so disruptive
of the bargaining relationship as to warrant severe restrictions on
polling.
A poll conducted in accord with the Board's substantial
procedural safeguards would not coerce employees in the exercise of
their rights. In
Struksnes Constr. Co., 165 N. L. R. B.
1062, 1063 (1967), the Board, in addressing the validity of an
employer poll during a union's organizing drive, held that polling
does not violate the Act if "(1) the purpose of the poll is to
determine the truth of the union's claim to majority, (2) this
purpose is communicated to employees, (3) assurances against
reprisal are given, (4) the employees are polled by secret ballot,
and (5) the employer has not engaged in unfair labor practices or
otherwise created a coercive atmosphere." In
Texas
Petrochemicals, 296 N. L. R. B., at 1063-1064, the Board
imposed an additional requirement of advance notice of the time and
place of the poll. These substantial safeguards make coercion or
restraint of employees highly unlikely.2
2 The Board contends the
Struksnes standard is not
appropriate where the union is already established and enjoys a
presumption of majority support, as opposed to the organizing phase
where the union must establish its majority support. Brief for
Respondent 28. But the safeguards
384
384 ALLENTOWN MACK SALES & SERVICE, INC.
v. NLRB
Opinion of REHNQUIST, C. J.
Additionally, the Board's rationale gives short shrift to the
Act's goal of protecting employee choice.
Auciello Iron
Works, 517 U. S., at 790-791. By ascertaining employee support
for the union, a poll indirectly promotes this goal. Employees are
not properly represented by a union lacking majority support.
Employers also have a legitimate, recognized interest in not
bargaining with a union lacking majority support.
Texas
Petrochemicals, supra, at 1062. The ability to poll employees
thus provides the employer (and the employees) with a neutral and
effective manner of obtaining information relevant to determining
the employees' proper representative and the employer's bargaining
obligations. See
Curtin Matheson, 494 U. S., at 797
(REHNQUIST, C. J., concurring); see also
id., at 799
(Blackmun, J., concurring). Stability, while an important goal of
the Act, see
Fall River, supra, at 37, is not its be-all and
end-all. That goal would not justify, for example, allowing a
nonmajority union to remain in place (after a certification or
contract bar has expired) simply by denying employers any effective
means of ascertaining employee views. I conclude that the Board's
standard restricts polling in the absence of coercion or restraint
of employee rights and therefore is contrary to the Act.
Quite apart from the lack of statutory authority for the Board's
treatment of polling, I think this treatment irrationally equates
employer polls, RM elections, and unilateral withdrawals of
recognition. The Board argues that having
protect against the potentially disruptive or coercive effects
of polls equally in both situations. If anything, polling would
seem more unsettling before the union is established. And in both
situations, a poll serves the purpose of providing a neutral
determination of the employees' support for the union, where such
information is clearly relevant to employers in making legitimate
decisions regarding their bargaining obligations under the Act.
Moreover, to raise the bar to polling on the basis of the
presumption of majority support would in effect make that
presumption unassailable by denying employers the most effective,
and least coercive, way to obtain information on the actual level
of union support.
385
the same standard for polls and unilateral withdrawals is
reasonable because the employer can still use polls to confirm a
loss of majority support. As a practical matter, this leaves little
room for polling,
supra, at 381. But even conceding some
remaining value to polling, the Board's rationale fails to address
the basic inconsistency of imposing the same standard on two
actions having dramatically different effects. Surely a unilateral
withdrawal of recognition creates a greater disruption of the
bargaining relationship and greater "doubts" in the minds of
employees than does a poll. Consistent with the Board's reliance on
such disruption to justify its polling standard, the standard for
unilateral withdrawals should surely be higher.
The Board also asserts that having the same standard for RM
elections and employer polls is justified by common practical and
legal consequences, i.
e., the risk of the union's loss of
its position as bargaining representative. But this argument fails
as a factual matter. As the Board admits, an RM election is binding
on a losing union for one year, 29 U. S. C. § 159(c)(3), while a
union losing a poll may petition for a Board election at any time.3
Brief for Respondent 40, n. 12. These differing consequences
suggest the standard for polling should be lower. The Board's
"avowed preference for RM elections," without some further legal or
factual grounds for support, would not appear to justify a higher
standard for polling. See
ante, at 365. But in any event,
that the Board
could perhaps justify a higher standard for
polling does not mean that it is rational to have the two standards
equal, especially since doing so results in RM elections and
3 On the other hand, if the union wins an employer poll, the
employer apparently must recognize the union,
Nation-Wide
Plastics, Inc., 197 N. L. R. B. 996 (1972), which is then
entitled to a conclusive presumption of majority support for a
reasonable time to permit bargaining. If an agreement is reached, a
contract bar will apply.
Auciello Iron Works, Inc. v.
NLRB, 517 U.
S. 781,791 (1996). A losing employer thus would be barred for
some time from conducting another poll.
386
386 ALLENTOWN MACK SALES & SERVICE, INC.
v. NLRB
Opinion of REHNQUIST, C. J.
unilateral withdrawals of recognition having the same standard
as well. The Board thus irrationally equates the standard for
polling with the standards for both unilateral withdrawals of
recognition and RM elections.
The conclusion that the Board's standard is both irrational and
without support in the Act is reinforced by longstanding decisions
from this Court. In
NLRB v.
Gissel Packing Co.,
395 U. S. 575,
616-617 (1969), an employer challenged the Board's determination
that the employer's communications to its employees attempting to
dissuade them from supporting the union violated § 8(a)(5). While
upholding the finding of a violation on the facts presented, the
Court noted that an employer's free speech right to communicate his
views to his employees is firmly established and cannot be
infringed by a union or the Board. Thus, § 8(c), 29 U. S. C. §
158(c), merely implements the First Amendment by requiring that the
expression of "any views, argument, or opinion" shall not be
"evidence of an unfair labor practice," so long as such expression
contains "no threat of reprisal or force or promise of benefit" in
violation of § 8(a)(1). 395 U. S., at 617. See also
Thomas
v.
Collins, 323 U. S. 516, 537 (1945)
(union solicitation of employees is protected by First Amendment);
NLRB v.
Virginia Elec. &
Power Co.,
314 U. S. 469,
477-478 (1941) (employer's attempts to persuade employees with
respect to joining or not joining union are protected by First
Amendment). The Court thus concluded that First Amendment rights,
codified in § 8(c), limited the Board's regulatory authority to
cases where the employer's speech contained a threat of reprisal or
coercion.
Under
Gissel's reasoning, employer solicitation of
employee views is protected speech, although such solicitation can
constitutionally be prohibited where it amounts to coercion or
threats of reprisal. There is no logical basis for a distinction
between soliciting views, as in the instant case, and communicating
views. Our decisions have concluded that First Amendment protection
extends equally to the
387
right to receive information,
Kleindienst v.
Mandel,
408 U. S. 753, 762-763 (1972), and to the right to solicit
information or responses,
Edenfield v.
Fane, 507 U. S. 761, 765-766
(1993); Virginia Bd. of Pharmacy v.
Virginia Citizens
Consumer Council, Inc., 425 U. S. 748, 761
(1976). More specifically, we concluded in
Thomas, supra, at
534, that
union solicitation of employee views and support
is protected First Amendment activity. In finding union
solicitation protected,
Thomas relied on
Virginia
Elec. &
Power Co., supra, as establishing that
employer's attempts to persuade employees were protected
First Amendment activity. 323 U. S., at 536-537.
It is not, however, necessary to resolve whether the Board's
standard violates the First Amendment in this case. It is
sufficient that the Board's interpretation of § 8(a)(1) to limit
sharply employer polling raises difficult constitutional issues
about employers' First Amendment rights. We have held that when an
interpretation raises such constitutional concerns, the Board's
interpretation of the Act is not entitled to deference.
Edward J. DeBartolo Corp. v.
Florida Gulf
Coast Building &
Constr. Trades Council, 485 U. S. 568, 574-577
(1988);
NLRB v.
Catholic Bishop of Chicago, 440 U. S.
490, 506-507 (1979); see also
Rust v.
Sullivan,
500 U. S. 173,
190-191 (1991).
In
DeBartolo, we held that the Board's interpretation of
the Act to proscribe peaceful handbilling by a union was not
permissible. The Court acknowledged the Board's special authority
to construe the Act and the normal deference it is therefore
accorded. The Court nevertheless concluded that the Board's
interpretation was not entitled to deference because, "where an
otherwise acceptable construction of a statute would raise serious
constitutional problems, the Court will construe the statute to
avoid such problems." 485 U. S., at 575. See also
Bill Johnson's
Restaurants, Inc. v.
NLRB, 461 U. S. 731, 742-743
(1983) (the Board's interpretation of the Act is untenable in light
of First Amendment concerns
388
388 ALLENTOWN MACK SALES & SERVICE, INC.
v. NLRB
Opinion of BREYER, J.
and state interests, even though its interpretation is a
rational construction of the Act). As in
DeBartolo, I
conclude that § 8(a)(1) "is open to a construction that obviates
deciding whether a congressional prohibition of [employer polling]
on the facts of this case would violate the First Amendment." 485
U. S., at 578.
In my view, cases such as
Gissel, supra, Thomas, supra,
and
Virginia Elec. &
Power Co., supra, mean that
the Board must allow polling where it does not tend to coerce or
restrain employees. The Board must decide how and when in the first
instance, but its decision must be rational, it must have a basis
in the Act, and, of course, it may not violate the First
Amendment.
The Court, however, concludes that the Board's standard is
lawful. Accepting that conclusion,
arguendo, I agree that
the Board's findings are not supported by substantial evidence. I
therefore join Parts I, III, and IV of the Court's opinion.
JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE SOUTER, and
JUSTICE GINSBURG join, concurring in part and dissenting in
part.
I concur in Parts I and II and dissent from Parts III and IV of
the Court's opinion. In Parts III and IV; the Court holds unlawful
an agency conclusion on the ground that it is "not supported by
substantial evidence."
Ante, at 380; see 29 U. S. C. §
160(e); 5 U. S. C. § 706(2)(E). That question was not presented to
us in the petition for certiorari. In deciding it, the Court has
departed from the half-century old legal standard governing this
type of review. See
Universal Camera Corp. v.
NLRB,
340 U. S. 474,
490-491 (1951). It has rewritten a National Labor Relations Board
(Board) rule without adequate justification. It has ignored certain
evidentiary presumptions developed by the Board to provide guidance
in the application of this rule. And it has failed to give the kind
of leeway to the Board's factfinding authority
389
that the Court's precedents mandate. See,
e. g., Beth Israel
Hospital v.
NLRB, 437 U. S. 483, 504
(1978).
To decide whether an agency's conclusion is supported by
substantial evidence, a reviewing court must identify the
conclusion and then examine and weigh the evidence. As this Court
said in 1951, "[w]hether on the record as a whole there is
substantial evidence to support agency findings is a question which
Congress has placed in the keeping of the Courts of Appeals."
Universal Camera, 340 U. S., at 491. The Court held that it
would "intervene only in what ought to be the rare instance when
the standard appears to have been
misapprehended or grossly
misapplied." Ibid. (emphasis added); see
Beth Israel
Hospital, supra, at 507 (" 'misapprehended or grossly
misapplied' ");
Golden State Bottling Co. v.
NLRB,
414 U. S. 168,
173 (1973) (" 'misapprehended or grossly misapplied' ").
Consequently, if the majority is to overturn a court of appeals'
"substantial evidence" decision, it must identify the agency's
conclusion, examine the evidence, and then determine whether the
evidence is so
obviously inadequate to support the
conclusion that the reviewing court must have seriously
misunderstood the nature of its legal duty.
The majority opinion begins by properly stating the Board's
conclusion, namely, that the employer, Allentown Mack Sales &
Service, Inc., did not demonstrate that it
"held a reasonable doubt, based on objective
considerations, that the Union continued to enjoy the support
of a majority of the bargaining unit employees." Ante, at
366 (emphasis added; internal quotation marks omitted).
The opinion, however, then omits the words I have italicized and
transforms this conclusion, rephrasing it as:
"Allentown lacked a genuine, reasonable uncertainty about
whether Local 724 enjoyed the continuing support of a majority of
unit employees." Ante, at 367.
390
390 ALLENTOWN MACK SALES & SERVICE, INC.
v. NLRB
Opinion of BREYER, J.
Key words of a technical sort that the Board has used in
hundreds of opinions written over several decades to express what
the Administrative Law Judge (ALJ) here called
"objective
reasonable doubt" have suddenly disappeared, leaving in their place
what looks like an ordinary jury standard that might reflect not an
agency's specialized knowledge of the workplace, but a court's
common understanding of human psychology. The only authority cited
for the transformation, the dictionary, in fact offers no support,
for the majority has looked up the wrong word, namely, "doubt,"
instead of the right word, "objective." In any event, the
majority's interpretation departs from settled principles
permitting agencies broad leeway to interpret their own rules, see,
e. g., Thomas Jefferson Univ. v.
Shalala, 512
U. S. 504, 512 (1994) (courts "must give substantial deference
to an agency's interpretation of its own regulations");
Bowles v.
Seminole Rock &
Sand Co.,
325 U. S. 410,
413-414 (1945) (same), which may be established through rulemaking
or adjudication, see
NLRB v.
Bell Aerospace Co.,
416 U. S. 267,
294 (1974);
SEC
To illustrate the problem with the majority's analysis, I must
describe the factual background, the evidence, and the ALJ's
findings in some detail. In December 1990, three managers at Mack
Trucks (and several other investors) bought Mack. All of the 45
employees in the union's bargaining unit were dismissed. The new
owners changed the company's name to Allentown and then interviewed
and rehired 32 of the 45 recently dismissed workers, putting them
back to work at jobs similar to those they previously held. The
union, which had represented those employees for 17 years, sought
continued recognition; Allentown refused it; the Board's general
counsel brought unfair labor practice charges; and the ALJ found
that Allentown was a "successor" corporation to Mack, 316 N. L. R.
B. 1199, 1204 (1995), a finding that was affirmed by the Board,
id., at 1199, and was not challenged in the Court of
Appeals. Because Allen-
391
town was found to be a "successor" employer, the union was
entitled to a rebuttable presumption of majority status. See
Fall River Dyeing &
Finishing Corp. v.
NLRB, 482 U. S.
27, 41 (1987). Absent some extraordinary circumstance, when a
union enjoys a rebuttable presumption of majority status, the
employer is obligated to recognize the union unless 30% of the
union's employees petition the Board for a decertification election
(and the union loses),
Texas Petrochemicals Corp., 296 N. L.
R. B. 1057, 1062 (1989), enf'd as modified,
923
F.2d 398 (CA5 1991); see 29 U. S. C. § 159(c)(1)(A)(ii); 29 CFR
§ 101.18(a) (1997), or the employer shows that "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," see
NLRB v.
Curtin Matheson Scientific, Inc., 494 U. S. 775, 778 (1990)
(emphasis deleted; internal quotation marks and citations
omitted).
Allentown took the last mentioned of these options. According to
the ALJ, it sought to show that it had an "objective" good-faith
doubt primarily by presenting the testimony of Allentown managers,
who, in turn, reported statements made to them by 14 employees. The
ALJ set aside the statements of 5 of those employees as
insignificant for various reasons-for example because the employees
were not among the rehired 32, because their statements were
equivocal, or because they made the statements at a time too long
before the transition. 316 N. L. R. B., at 1206-1207. The majority
does not take issue with the ALJ's reasoning with respect to these
employees. The ALJ then found that statements made by six, and
possibly seven, employees (22% of the 32) helped Allentown show an
"objective" reasonable doubt.
Id., at 1207. The majority
does not quarrel with this conclusion. The majority does, however,
take issue with the ALJ's decision not to count in Allentown's
favor three further statements, made by employees Marsh, Bloch, and
Mohr.
Id., at 1206-1207. The majority says that these
392
392 ALLENTOWN MACK SALES & SERVICE, INC.
v. NLRB
Opinion of BREYER, J.
statements
required the ALJ and the Board to find for
Allentown. I cannot agree.
Consider Marsh's statement. Marsh said, as the majority opinion
notes, that "'he was not being represented for the $35 he was
paying.'"
Ante, at 369; 316 N. L. R. B., at 1207. The
majority says that the ALJ was wrong not to count this statement in
the employer's favor.
Ante, at 369. But the majority fails
to mention that Marsh made this statement to an Allentown manager
while the manager was interviewing Marsh to determine whether he
would, or would not, be one of the 32 employees whom Allentown
would reemploy. The ALJ, when evaluating all the employee
statements, wrote that statements made to the Allentown managers
during the job interviews were "somewhat tainted as it is likely
that a job applicant will say whatever he believes the prospective
employer wants to hear." 316 N. L. R. B., at 1206. In so stating,
the ALJ was reiterating the Board's own normative general finding
that employers should not "rely in asserting a good-faith doubt"
upon "[s]tatements made by employees during the course of an
interview with a prospective employer."
Middleboro Fire
Apparatus, Inc., 234 N. L. R. B. 888,894, enf 'd,
590 F.2d
4 (CA5 1978). The Board also has found that" '[e]mployee
statements of dissatisfaction with a union are not deemed the
equivalent of withdrawal of support for the union.'"
Torch
Operating Co., 322 N. L. R. B. 939, 943 (1997) (quoting
Briggs Plumbingware, Inc. v.
NLRB, 877 F.2d
1282, 1288 (CA6 1989)); see also
Destileria Serralles,
Inc., 289 N. L. R. B. 51 (1988),
882 F.2d
19 (CA1 1989). Either of these general Board findings
(presumably known to employers advised by the labor bar), applied
by the ALJ in this particular case, provides more than adequate
support for the ALJ's conclusion that the employer could not
properly rely upon Marsh's statement as help in creating an
"objective" employer doubt.
I do not see how, on the record before us, one could plausibly
argue that these relevant general findings of the Board
393
fall outside the Board's lawfully delegated authority. The Board
in effect has said that an employee statement
made during a job
interview with an employer who has expressed an interest in a
nonunionized work force will often tell us precisely
nothing about that employee's true feelings. That Board
conclusion represents an exercise of the kind of discretionary
authority that Congress placed squarely within the Board's
administrative and factfinding powers and responsibilities. See
Radio Officers v.
NLRB, 347 U. S. 17, 49-50
(1954). Nor is it procedurally improper for an agency, rather like
a common-law court, (and drawing upon its accumulated expertise and
exercising its administrative responsibilities) to use adjudicatory
proceedings to develop rules of thumb about the likely weight
assigned to different kinds of evidence. Cf.
Bell Aerospace,
416 U. S., at 294;
Chenery, 332 U. S., at 202.
Consider next Bloch's statement, made during his job interview
with Worth, that those on the night shift (five or six employees)
"did not want the Union." 316 N. L. R. B., at 1207. The ALJ thought
this statement failed to provide support, both for reasons that the
majority mentions (" 'Bloch did not testify and thus could not
explain how he formed his opinion about the views of his fellow
employees' "),
ante, at 369; 316 N. L. R. B., at 1207, and
for reasons that the majority does not mention ("no showing that
[the other employees] made independent representations about their
union sympathies to [Allentown] and they did not testify in this
proceeding"),
ibid.
The majority says that "reason demands" that Bloch's statement
"be given considerable weight."
Ante, at 370. But why? The
Board, drawing upon both reason and experience, has said it will
"view with suspicion and caution" one employee's statements
"purporting to represent the views of other employees."
Wallkill
Valley General Hospital, 288 N. L. R. B. 103, 109 (1988), enf'd
as modified,
866 F.2d
632 (CA3 1989); see also
Louisiana-Pacific Corp., 283 N.
L. R. B.
394
394 ALLENTOWN MACK SALES & SERVICE, INC.
v. NLRB
Opinion of BREYER, J.
1079, 1080, n. 6 (1987);
Bryan Memorial Hospital, 279 N.
L. R. B. 222, 225 (1986), enf'd
814 F.2d
1259 (CA8 1987). Indeed, the Board specifically has stated that
this type of evidence does not qualify as "objective" within the
meaning of the "objective reasonable doubt" standard.
Wallkill
Valley General Hospital, supra, at 109-110 (finding that
statement by one employee that other employees opposed the union
"cannot be found to provide
objective considerations"
because statement was a "bare assertion," was "subjective," and
"lacking in demonstrable foundation"; statement by another employee
about the views of others was similarly "insufficiently reliable
and definite to contribute to a finding of
objective
considerations" (emphases added)).
How is it unreasonable for the Board to provide this kind of
guidance, about what kinds of evidence are more likely, and what
kinds are less likely, to support an "objective reasonable doubt"
(thereby helping an employer understand just when he may refuse to
bargain with an established employee representative, in the absence
of an employee-generated union decertification petition)? Why is it
unreasonable for an ALJ to disregard a highly general conclusory
statement such as Bloch's, a statement that names no names, is
unsupported by any other concrete testimony, and was made during a
job interview by an interviewer who foresees a nonunionized
workforce? To put the matter more directly, how can the majority
substitute its own judgment for that of the Board and the ALJ in
respect to such detailed workplacerelated matters, particularly on
the basis of this record, where the question whether we should set
aside this kind of Board rule has not even been argued?
Finally, consider the Allentown manager's statement that Mohr
told him that "if a vote was taken, the Union would lose." 316 N.
L. R. B., at 1207. Since, at least from the perspective of the ALJ
and the Board, the treatment of this statement presented a closer
question, I shall set forth the ALJ's discussion of the matter in
full.
395
The ALJ wrote:
"Should Respondent be allowed to rely on Mohr's opinion? As
opposed to Bloch who offered the opinion that the night shift
employees did not support the Union, Mohr, as union steward, was
arguably in a position to know the sentiments of the service
employees in the bargaining unit in this regard. However, there is
no evidence with respect to how he gained this knowledge, or
whether he was speaking about a large majority of the service
employees being dissatisfied with the Union or a small majority.
Moreover, he was referring to the existing service employee members
of the Mack bargaining unit composed of 32 employees, whereas the
Respondent hired only 23 of these men. Certainly the composition of
the complement of employees hired would bear on whether this group
did or did not support the Union. He also was not in a position to
speak for the 11 parts employees of Mack or the 7 parts employees
hired by Respondent. Mohr himself did not indicate personal
dissatisfaction with the Union." Id., at 1208.
The ALJ concluded:
"Given the almost off-the-cuff nature of [Mohr's] statement and
the Board's historical treatment of unverified assertions by an
employee about other employees' sentiments, I do not find that
Mohr's statements provides [sic] sufficient basis, even when
considered with the other employee statements relied upon, to meet
the Board's objective reasonable doubt standard for withdrawal of
recognition or for polling employees." Ibid.
One can find reflected in the majority opinion some of the
reasons the ALJ gave for discounting the significance of Mohr's
statement. The majority says of the ALJ's first reason (namely,
that "'there is no evidence with respect to how'" Mohr "'gained
this knowledge''') that this reason is "irrelevan[t]."
Ante,
at 370. But why so? The lack of any
396
396 ALLENTOWN MACK SALES & SERVICE, INC.
v. NLRB
Opinion of BREYER, J.
specifics provides some support for the possibility that Mohr
was overstating a conclusion, say, in a job-preserving effort to
curry favor with Mack's new managers. More importantly, since the
absence of detail or support brings Mohr's statement well within
the Board's pre-existing cautionary evidentiary principle (about
employee statements regarding the views of other employees), it
diminishes the reasonableness of any employer reliance.
The majority discusses a further reason, namely, that Mohr was
referring to a group of 32 employees of whom Allentown hired only
23, and "the composition of the complement of employees hired would
bear on whether this group did or did not support the Union." 316
N. L. R. B., at 1208. The majority considers this reason "wholly
irrational," because, in its view, the Board cannot "rationally"
assume that
"the work force of a successor company has the same disposition
regarding the union as did the work force of the predecessor
company, if the majority of the new work force came from the old
one," ante, at 370,
while adopting an opposite assumption
"for purposes of determining what evidence tends to establish a
reasonable doubt regarding union support," ibid.
The irrationality of these assumptions, however, is not obvious.
The primary objective of the National Labor Relations Act is to
secure labor peace.
Fall River Dyeing &
Finishing
Corp. v.
NLRB, 482 U. S., at 38. To preserve the status
quo ante may help to preserve labor peace; the first presumption
may help to do so by assuming (in the absence of contrary evidence)
that workers wish to preserve that status quo, see
id., at
38-40; the second, by requiring detailed evidence before dislodging
the status quo, may help to do the same. Regardless, no one has
argued that these presumptions are contradictory or illogical.
397
The majority fails to mention the ALJ's third reason for
discounting Mohr's statement, namely, that Mohr did not indicate
"whether he was speaking about a large majority of the service
employees being dissatisfied with the Union or a small majority."
316 N. L. R. B., at 1208. It fails to mention the ALJ's belief that
the statement was "almost off-thecuff."
Ibid. It fails to
mention the ALJ's reference to the "Board's historical treatment of
unverified assertions by an employee about other employees'
sentiments" (which, by itself, would justify a considerable
discount).
Ibid. And, most importantly, it leaves out the
ALJ's conclusion. The ALJ did not conclude that Mohr's statement
lacked evidentiary significance. Rather, the ALJ concluded that the
statement did not provide
"sufficient basis, even when
considered with other employee statements relied upon, to meet the
Board's objective reasonable doubt standard."
Ibid.
(emphasis added).
Given this evidence, and the ALJ's reasoning, the Court of
Appeals found the Board's conclusion adequately supported. That
conclusion is well within the Board's authority to make findings
and to reach conclusions on the basis of record evidence, which
authority Congress has granted, and this Court's many precedents
have confirmed. See,
e. g., Beth Israel Hospital v.
NLRB, 437 U. S., at 504.
In sum, the majority has failed to focus upon the ALJ's actual
conclusions, it has failed to consider all the evidence before the
ALJ, it has transformed the actual legal standard that the Board
has long administered without regard to the Board's own
interpretive precedents, and it has ignored the guidance that the
Board's own administrative interpretations have sought to provide
to the bar, to employers, to unions, and to its own administrative
staff. The majority's opinion will, I fear, weaken the system for
judicial review of administrative action that this Court's
precedents have carefully constructed over several decades.
For these reasons, I dissent.
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