# National Labor Relations Board v. Curtin Matheson Scientific Inc.

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## Dissenting Opinions

    Blackmun
    Scalia
United States Supreme Court
494 U.S. 775
National Labor Relations Board v. Curtin Matheson Scientific Inc.
No. 88-1685 Argued: Dec. 4, 1989. --- Decided: April 17, 1990
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, 95 S.Ct. 959, 967-968, 43 L.Ed.2d 171. Pp. 286-787.
(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 ofre placement opposition is insufficient to justify an antiunion presumption, since the circumstances surrounding each strike and replacements' reasons for crossing a picket line may vary greatly. For example, a replacement who otherwise supports the union and desires its representation may be forced by economic concerns to work for a struck employer. He may also want such representation even though he disagrees with the purpose or strategy of, and refuses to support, the particular strike. Respondent's contention that the Board's position is irrational because the interests of strikers and replacements are diametrically opposed and because unions inevitably side with strikers is unpersuasive. Unions do not invariably demand displacement of all replacements, and the extent to which they do so will depend on the extent of their bargaining power, which will in turn vary greatly from strike to strike. If the union's bargaining position is weak, many of the replacements justifiably may not fear that they will lose their jobs at the end of the strike and may still want the union's representation thereafter. Moreover, even if the interests of strikers and replacements conflict during the strike, those interests may converge after job rights have been settled; replacements surely are capable of looking past the strike in considering whether they want representation. Thus, the Board's approach is not irreconcilable with its position in Service Electric Co., 281 N.L.R.B. 633, 641, and Leveld Wholesale, Inc., 218 N.L.R.B. 1344, 1350, that an employer has no duty to bargain with a striking union over replacements' employment terms. Furthermore, the Board has not deemed picket-line violence or a union's demands that replacements be terminated irrelevant to its evaluation of their union sentiments. Cf. Stormor, Inc., 268 N.L.R.B. 860, 866-867; IT Services, 263 N.L.R.B. 1183, 1185-1188. In both Station KKHI, supra, and this case, the Board noted that the picket line was peaceful, and in neither case did the employer present evidence that the union was actively negotiating for the ouster of replacements. Pp. 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 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.
David L. Shapiro, for petitioner.
James V. Carroll, III, Houston, Tex., for respondent.
Justice MARSHALL delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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