National Labor Relations Board v. Curtin Matheson Scientific Inc./Dissent Blackmun
Justice BLACKMUN, dissenting.
I agree with much that Justice SCALIA says in his dissent, but I write separately because in certain respects his approach differs from mine. As Justice SCALIA ably demonstrates, the Board's analysis in this case cannot be reconciled with its decisions in cases such as Service Electric Co., 281 N.L.R.B. 633 (1986), and Leveld Wholesale, Inc., 218 N.L.R.B. 1344 (1975). Those decisions rest upon the premises that a striking union inevitably will tend to favor its own members at the expense of replacement workers; that the union cannot reasonably be expected to give balanced representation to the two groups; and that the replacements "can reasonably foresee that, if the union is successful, the strikers will return to work and the strike replacements will be out of a job." Id., at 1350. Those premises are, to say the least, in considerable tension with the Board's refusal to presume, without direct evidence of employee preferences, that an employer may in good faith doubt that replacement workers support the striking union.
Justice SCALIA's dissent, as I read it, rests upon the belief that the Board was correct in Service Electric and Leveld Wholesale, and that its decision in the instant case is therefore substantively irrational. Certainly the views expressed in Service Electric and Leveld Wholesale accord with my own understanding of industrial reality. It seems to me eminently foreseeable that a striking union will disfavor the workers who have been hired to break the strike; that the union will attempt, as an element of the ultimate settlement, to secure the discharge of replacement employees; and that the replacements will be aware of the antagonism between the union's interests and their own.  But if the expert agency were to determine that the participants in the collective-bargaining process no longer behave in this fashion, and if it consistently acted upon this determination, I cannot say at this juncture that the Board's decision would be irrational. To invalidate the Board's order in the present case, it is not necessary to assert that the decision is based upon an implausible assessment of industrial reality. Rather, it is enough to say that the Board in this case has departed, without explanation, from principles announced and reaffirmed in its prior decisions. The agency has made no effort to explain the apparent inconsistency between the decision here and its analyses in Service Electric and Leveld Wholesale, and its order is invalid on that basis alone. 
I am struck, moreover, by the Board's lack of empirical support for its position-a significant point in view of the fact that for 25 years the Board presumed that replacement workers opposed the striking union. If the Board's refusal to adopt such a presumption is based, at least in part, on policy concerns (e.g., the fear that employers would abuse the bargaining process by "hiring their way out" of their statutory duty), it seems reasonable to expect the Board to show (or at least to assert) that such abuses actually occurred during the period the presumption was in place. I am also troubled by the fact, noted in THE CHIEF JUSTICE's concurring opinion, ante, at 797, that while the Board appears to require that good-faith doubt be established by express avowals of individual employees, other Board policies make it practically impossible for the employer to amass direct evidence of its workers' views.  The point, I emphasize, is that thepropri ety of the no-presumption rule cannot be determined simply by asking whether the rule, in isolation, is irrational or rests on a demonstrably misguided view of the facts. Rather, the reviewing court also must ask whether the agency's decision is the product of an adequate deliberative process and is consonant with other agency pronouncements in analogous areas.
Perhaps the difference between my approach and that of Justice SCALIA is one only of emphasis, but I think that the difference is worth noting. Rarely will a court feel so certain of the wrongness of an agency's empirical judgment that it will be justified in substituting its own view of the facts. But courts can and should review agency decisionmaking closely to ensure that an agency has adequately explained the bases for its conclusions, that the various components of its policy form an internally consistent whole, and that any apparent contradictions are acknowledged and addressed. This emphasis upon the decisionmaking process allows the reviewing court to exercise meaningful control over unelected officials without second-guessing the sort of expert judgments that a court may be ill equipped to make. Such an approach also affords the agency a broad range of discretion. Confronted with a court's conclusion that two of its policy pronouncements are inconsistent, the agency may choose for itself which path to follow, or it may attempt to explain why no contradiction actually exists.
This Court has never held that the Board is required by statute to recognize the good-faith doubt defense, and the Board's power to eliminate that defense remains an open question. The Board has not purported to take that step, however, and the agency has articulated no legitimate basis for its conclusion that the employer in this case lacked a good-faith doubt as to the union's majority support. The Board may not assert in one line of cases that the interests of a striking union and replacement workers are irreconcilably in conflict, and proclaim in a different line of decisions that no meaningful generalizations can be made about the union sentiments of the replacement employees. I therefore conclude that the judgment of the Court of Appeals should be affirmed.
I respectfully dissent.
^1 See Belknap, Inc. v. Hale, 463 U.S. 491, 513-514, 103 S.Ct. 3172, 3184-3185, 77 L.Ed.2d 798 (1983) (opinion concurring in judgment) ("During settlement negotiations, the union can be counted on to demand reinstatement for returning strikers as a condition for any settlement").
^2 See Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 394, 444 F.2d 841, 852 (1970) ("[A]n agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored, and if an agency glosses over or swerves from prior precedents without discussion it may cross the line from the tolerably terse to the intolerably mute") (footnote omitted), cert. denied, 403 U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971).
^3 The NLRB has recently reaffirmed its rule that an employer must meet the same good-faith doubt standard in order to poll its employees, petition the Board for an election, or withdraw recognition from the union. Texas Petrochemicals Corp., 296 N.L.R.B. No. 1057, 1064 (1989). If good-faith doubt can be established only by the express statements of individual workers, the employer is placed in a difficult bind. See Mingtree Restaurant, Inc. v. NLRB, 736 F.2d 1295, 1297 (CA9 1984) ("By the Board's reasoning, an employer in doubt of the union's majority status would be allowed to take a poll only when it had no actual need to do so, that is, when it already had sufficient objective evidence to justify withdrawal of recognition").