JUSTICE MARSHALL delivered the opinion of the Court.
This case presents the question whether the National Labor Relations Board (NLRB or Board), in evaluating an employer's claim that it had a reasonable basis for doubting a union's majority support, must presume that striker replacements oppose the union. We hold that the Board acted within its discretion in refusing to adopt a presumption of replacement opposition to the union and therefore reverse the judgment of the Court of Appeals.
Upon certification by the NLRB as the exclusive bargaining agent for a unit of employees, a union enjoys an irrebuttable
A 1974 decision, Peoples Gas System, Inc., 214 N. L. R. B. 944 (1974), rev'd and remanded on other grounds sub nom.
A year later, in Cutten Supermarket, 220 N. L. R. B. 507 (1975), the Board reversed course completely, stating that striker replacements, like new employees generally, are presumed to support the union in the same ratio as the strikers they replaced. Id., at 509. The Board's initial adherence to this new approach, however, was equivocal. In Arkay Packaging Corp., 227 N. L. R. B. 397 (1976), review denied sub nom. New York Printing Pressmen & Offset Workers Union, No. 51 v. NLRB, 575 F.2d 1045 (CA2 1978), the Board stated that "it would be wholly unwarranted and unrealistic to presume as a matter of law that, when hired, the replacements for the union employees who had gone out on strike favored representation by the Unions to the same extent as the strikers." 227 N. L. R. B., at 397-398. See also Beacon Upholstery Co., 226 N. L. R. B. 1360, 1368 (1976) (distinguishing Cutten Supermarket on the ground that the strikers in Beacon Upholstery had been lawfully discharged, so there were no striking employees in the bargaining unit). Nevertheless, in Windham Community Memorial Hospital, 230 N. L. R. B. 1070 (1977), enf'd, 577 F.2d 805 (CA2 1978), the Board explicitly reaffirmed Cutten Supermarket, stating that "[t]he general rule . . . is that new employees, including striker replacements, are presumed to support the union in the same ratio as those whom they have replaced." 230
In 1987, after several Courts of Appeals rejected the Board's approach,
We now turn to the Board's application of its Station KKHI no-presumption approach in this case. Respondent Curtin Matheson Scientific, Inc., buys and sells laboratory instruments and supplies. In 1970, the Board certified Teamsters Local 968, General Drivers, Warehousemen and Helpers (hereinafter Union) as the collective-bargaining agent for respondent's production and maintenance employees. On May 21, 1979, the most recent bargaining agreement between respondent and the Union expired. Respondent made its final offer for a new agreement on May 25, but the Union rejected that offer. Respondent then locked out the 27 bargaining-unit employees. On June 12, respondent renewed its May 25 offer, but the Union again rejected it. The Union then commenced an economic strike. The record contains no evidence of any strike-related violence or threats of violence.
Five employees immediately crossed the picket line and reported for work. On June 25, while the strike was still in effect, respondent hired 29 permanent replacement employees to replace the 22 strikers. The Union ended its strike on July 16, offering to accept unconditionally respondent's May 25 contract offer. On July 20, respondent informed the Union that the May 25 offer was no longer available. In addition, respondent withdrew recognition from the Union and refused to bargain further, stating that it doubted that the Union was supported by a majority of the employees in the unit. Respondent subsequently refused to provide the Union with information it had requested concerning the total number of bargaining-unit employees on the payroll, and the job classification and seniority of each employee. As of July 20, the bargaining unit consisted of 19 strikers, 25 permanent replacements, and the 5 employees who had crossed the picket line at the strike's inception.
First, the Board noted that the crossover of 5 of the original 27 employees did not in itself support an inference that the 5 had repudiated the Union, because their failure to join the strike may have "indicate[d] their economic concerns rather than a lack of support for the union." 287 N. L. R. B., at 352. Second, the Board found that the resignation from their jobs of two of the original bargaining-unit employees, including the chief shop steward, after the commencement of the strike did not indicate opposition to the Union, but merely served to reduce the size of the bargaining unit as of the date of respondent's withdrawal of recognition. Ibid.
Finally, regarding respondent's hiring of striker replacements, the Board stated that, in accordance with the Station KKHI approach, it would "not use any presumptions with respect to [the replacements'] union sentiments," but would instead "take a case-by-case approach [and] require additional evidence of a lack of union support on the replacements' part in evaluating the significance of this factor in the employer's showing of good-faith doubt." 287 N. L. R. B., at 352. The Board noted that respondent's only evidence of the replacements' attitudes toward the Union was its employee relations director's account of a conversation with one of the replacements. The replacement employee reportedly told her that he had worked in union and nonunion workplaces and did not see any need for a union as long as the company treated him
The Board therefore concluded that "the evidence [was] insufficient to rebut the presumption of the Union's continuing majority status." Ibid. Accordingly, the Board held that respondent had violated §§ 8(a)(1) and 8(a)(5) by withdrawing recognition from the Union, failing to furnish the requested information, and refusing to execute a contract embodying the terms respondent had offered on May 25, 1979. The Board ordered respondent to bargain with the Union on request, provide the requisite information, execute an agreement, and make the bargaining-unit employees whole for whatever losses they had suffered from respondent's failure to execute a contract.
The Court of Appeals, in a divided opinion, refused to enforce the Board's order, holding that respondent was justified in doubting the Union's majority support. 859 F.2d 362 (CA5 1988). Specifically, the court rejected the Board's decision not to apply any presumption in evaluating striker replacements' union sentiments and endorsed the so-called "Gorman presumption" that striker replacements oppose the union.
This Court has emphasized often that the NLRB has the primary responsibility for developing and applying national labor policy. See, e. g., Beth Israel Hospital v. NLRB, 437 U.S. 483, 500-501 (1978); NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 (1963); NLRB v. Truck Drivers, 353 U.S. 87, 96 (1957).
This Court therefore has accorded Board rules considerable deference. See Fall River Dyeing & Finishing Corp. v.
Before assessing the Board's justification for rejecting the antiunion presumption, we will make clear precisely how that presumption would differ in operation from the Board's current approach. As noted above, see supra, at 777-778, the starting point for the Board's analysis is the basic presumption that the union is supported by a majority of bargaining-unit employees. The employer bears the burden of rebutting that presumption, after the certification year, either by showing that the union in fact lacks majority support or by demonstrating a sufficient objective basis for doubting the union's majority status. Respondent here urges that in evaluating an employer's claim of a good-faith doubt, the Board must adopt a second, subsidiary presumption — that replacement employees oppose the union. Under this approach, if a majority of employees in the bargaining unit were striker replacements, the employer would not need to offer any objective evidence of the employees' union sentiments to rebut the presumption of the union's continuing majority status. The presumption of the replacements' opposition to the union would, in effect, override the presumption of continuing
We find the Board's no-presumption approach rational as an empirical matter. Presumptions normally arise when proof of one fact renders the existence of another fact "so probable that it is sensible and timesaving to assume the truth of [the inferred] fact . . . until the adversary disproves
Respondent insists that the interests of strikers and replacements are diametrically opposed and that unions inevitably side with the strikers. For instance, respondent argues, picket-line violence often stems directly from the hiring of replacements. Furthermore, unions often negotiate with employers for strike settlements that would return the strikers to their jobs, thereby displacing some or all of the replacements. See Belknap, Inc. v. Hale, 463 U.S. 491, 513-514 (1983) (BLACKMUN, J., concurring in judgment). Respondent asserts that replacements, aware of the union's loyalty to the strikers, most likely would not support the union. See, e. g., Leveld Wholesale, Inc., 218 N. L. R. B. 1344, 1350 (1975) ("Strike replacements can reasonably foresee that, if the union is successful, the strikers will return to work and the strike replacements will be out of a job"). In a related argument, respondent contends that the Board's no-presumption
These arguments do not persuade us that the Board's position is irrational. Unions do not inevitably demand displacement of all strike replacements. In Dold Foods, Inc., 289 N. L. R. B. 1323 (1988), the Board based its refusal to presume that the replacements opposed the union in part on this ground:
The extent to which a union demands displacement of permanent replacement workers logically will depend on the union's bargaining power. Under this Court's decision in NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938), an employer is not required to discharge permanent replacements at the conclusion of an economic strike to make room for returning strikers; rather, the employer must only reinstate strikers as vacancies arise. The strikers' only chance for immediate reinstatement, then, lies in the union's ability to force the employer to discharge the replacements as a condition for the union's ending the strike. Unions' leverage to compel such a strike settlement will vary greatly from
Furthermore, the Board has not deemed picket-line violence or a union's demand that replacements be terminated
In sum, the Board recognized that the circumstances surrounding each strike and replacements' reasons for crossing a picket line vary greatly. Even if replacements often do not support the union, then, it was not irrational for the Board to conclude that the probability of replacement opposition to the union is insufficient to justify an antiunion presumption.
The Board's refusal to adopt an antiunion presumption is also consistent with the Act's "overriding policy" of achieving " `industrial peace.' " Fall River, 482 U. S., at 38 (quoting Brooks v. NLRB, 348 U.S. 96, 103 (1954)).
The Board's approach to determining the union views of strike replacements is directed at this same goal because it limits employers' ability to oust a union without adducing any evidence of the employees' union sentiments and encourages negotiated solutions to strikes. It was reasonable for the Board to conclude that the antiunion presumption, in contrast, could allow an employer to eliminate the union merely by hiring a sufficient number of replacement employees. That rule thus might encourage the employer to avoid good-faith bargaining over a strike settlement, and instead to use the strike as a means of removing the union altogether. Cf. id., at 40 ("Without the presumptions of majority support. . . , an employer could use a successor enterprise as a way of getting rid of a labor contract and of . . . eliminat[ing the union's] continuing presence"). Restricting an employer's
Furthermore, it was reasonable for the Board to decide that the antiunion presumption might chill employees' exercise of their statutory right to engage in "concerted activities," including the right to strike. See 49 Stat. 452, as amended, 29 U. S. C. § 157 ("Employees shall have the right. . . to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection"). If an employer could remove a union merely by hiring a sufficient number of replacements, employees considering a strike would face not only the prospect of being permanently replaced, but also a greater risk that they would lose their bargaining representative, thereby diminishing their chance of obtaining reinstatement through a strike settlement. It was rational for the Board to conclude, then, that adoption of the antiunion presumption could chill employees' exercise of their right to strike.
We hold that the Board's refusal to adopt a presumption that striker replacements oppose the Union is rational and consistent with the Act. We therefore reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion.
It is so ordered.
The Board's "no-presumption" rule seems to me to press to the limit the deference to which the Board is entitled in assessing industrial reality, but for the reasons stated in the opinion of the Court I agree that limit is not exceeded. The Court of Appeals did not consider, free from the use of any presumption, whether there was substantial evidence on the record as a whole to support the Board's determination here, and I believe that is a question best left for the Court of Appeals on remand.
By refusing to allow the employer to resort to what would seem to be commonsense assumptions about the views of an entire class of workers — those hired to replace strikers — the Board sharply limits the means by which an employer might satisfy the "good-faith doubt" requirement. Although the Board's opinion in this case does not preclude a finding of good-faith doubt based on circumstantial evidence, some recent decisions suggest that it now requires an employer to show that individual employees have "expressed desires" to repudiate the incumbent union in order to establish a reasonable doubt of the union's majority status. See Tube Craft, Inc., 289 N. L. R. B. 862, n. 2 (1988); Johns-Manville Sales Corp., 289 N. L. R. B. 358, 361 (1988); Tile, Terrazzo & Marble Contractors Assn., 287 N. L. R. B. 769, n. 2 (1987). It appears that another of the Board's rules prevents the employer from polling its employees unless it first establishes a good-faith doubt of majority status. See Texas Petrochemicals Corp., 296 N. L. R. B. 1057, 1064 (1989) (the standard for employer polling is the same as the standard for withdrawal of recognition). I have considerable doubt whether the Board may insist that good-faith doubt be determined only on the basis of sentiments of individual employees, and at the same time bar the employer from using what might be the only effective means of determining those sentiments. But that issue is not before us today.
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.
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.
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
I respectfully dissent.
JUSTICE SCALIA, with whom JUSTICE O'CONNOR and JUSTICE KENNEDY join, dissenting.
The Court makes heavy weather out of what is, under well-established principles of administrative law, a straightforward case. The National Labor Relations Board (NLRB or Board) has established as one of the central factual determinations to be made in § 8(a)(5) unfair-labor-practice adjudications, whether the employer had a reasonable, good-faith doubt concerning the majority status of the union at the time it requested to bargain. The Board held in the present case that such a doubt was not established by a record showing that at the time of the union's request a majority of the bargaining unit were strike replacements, and containing no affirmative evidence that any of those replacements supported the union. The question presented is whether that factual finding is supported by substantial evidence. Since the principal employment-related interest of strike replacements (to retain their jobs) is almost invariably opposed to the principal interest of the striking union (to replace them with its striking members) it seems to me impossible to conclude on this record that the employer did not have a reasonable, good-faith doubt regarding the union's majority status. The Board's factual finding being unsupported by substantial evidence, it cannot stand. I therefore dissent from the judgment
As the Court describes, the union was certified in 1970. In 1979, before the strike, the bargaining unit was composed of 27 employees. After the strike began, 5 employees crossed the picket line and 29 new employees were hired to replace the strikers. On July 16, the union offered to return to work under the terms of respondent's last prestrike proposal. On July 20, respondent rejected this offer, withdrew recognition from the union, and refused to bargain further, stating that it doubted that the union represented a majority of the employees in the bargaining unit. On that date, according to the Board, the bargaining unit consisted of 49 employees: 19 strikers, 5 employees who had crossed the picket line to return to work, and 25 strike replacements. The union filed an unfair-labor-practice charge with the Board, and the Board's General Counsel filed a complaint charging that respondent had violated § 8(a)(5) (and thereby § 8(a)(1)) of the National Labor Relations Act (NLRA), 49 Stat. 452, as amended, 29 U. S. C. §§ 158(a)(1) and (5). After a formal hearing, the Administrative Law Judge (ALJ) found that respondent, at the time it withdrew recognition, had an objectively reasonable, good-faith doubt that the union represented a majority of the employees in the bargaining unit. The General Counsel introduced no evidence that the union in fact commanded the support of a majority of the employees, and the ALJ dismissed the complaint.
The Board reversed and entered an order finding that respondent had violated the NLRA. The Board began by reciting its longstanding rule that " `[a]n employer who wishes to withdraw recognition after a year may do so . . . by presenting evidence of a sufficient objective basis for a reasonable doubt of the union's majority status at the time the employer refused to bargain.' " 287 N. L. R. B. 350, 352 (1987) (quoting Station KKHI, 284 N. L. R. B. 1339, 1340 (1987)).
The Fifth Circuit denied enforcement of the Board's order on the ground that respondent "was justified in doubting that the striker replacements supported the union," and that the Board's contrary conclusion was not supported by substantial evidence. 859 F.2d 362, 365, 367 (1988).
An NLRB unfair-labor-practice action is the form of administrative proceeding known as formal adjudication, governed by the Administrative Procedure Act (APA), 5 U. S. C. §§ 556, 557. See 5 U. S. C. § 554(a). In fact, it is even somewhat more judicialized than ordinary formal adjudication, since it is governed in addition by the procedural provisions of the NLRA itself, which provide, inter alia, that the proceeding "shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States under the rules of civil procedure for the
The Board's factual finding challenged in the present case is that there was no " `sufficient objective basis for a reasonable doubt of the union's majority status at the time of the employer refused to bargain.' " 287 N. L. R. B., at 352 (quoting Station KKHI, 284 N. L. R. B., at 1340). The Board has held for many years that an employer's reasonable, good-faith doubt as to a certified union's continued majority status is a defense to an unfair-labor-practice charge for refusal to bargain, in the sense that it shifts to the General Counsel the burden to "come forward with evidence that on the refusal-to-bargain date the union in fact did represent a majority of employees in the appropriate unit." Stoner Rubber Co., 123 N. L. R. B. 1440, 1445 (1959) (emphasis in original). The leading case on the subject, cited approvingly in the Station KKHI opinion that formed the basis for the Board's holding here, described the good-faith doubt defense as follows:
The Board purported to be proceeding on the basis that Celanese was still the law, and thus that "the totality of all [sic] the circumstances" in the present case did not establish reasonable grounds for doubting majority status. The precise question presented is whether there was substantial evidence to support this factual finding. There plainly was not.
As described above, of the 49 employees in the bargaining unit at the time of respondent's refusal to bargain, a majority (25) were strike replacements, and another 5 were former employees who had crossed the union's picket line. It may well be doubtful whether the latter group could be thought to support the union, but it suffices to focus upon the 25 strike replacements, who must be thought to oppose the union if the Board's own policies are to be believed. There was a deep and inherent conflict between the interests of these employees and the interests of the union. As the Board's cases have explained:
The Board relies upon this reality of "diametrically opposed" interests as the basis for two of its rules: First, that an employer does not commit an unfair labor practice by refusing to negotiate with the incumbent union regarding the terms and conditions of the replacements' employment. See Service Electric Co., 281 N. L. R. B. 633, 641 (1986). Second, that the union's duty of fair representation does not require it to negotiate in the best interests of the strike replacements regarding the terms and conditions of their employment — in other words, that the union may propose "negotiations leading to replacements being terminated to make way for returning strikers," ibid. See id., at 639 ("[I]t is not logical to expect [the striking bargaining] representative to negotiate in the best interests of strike replacements during the pendency of a strike") (internal quotation omitted; citation omitted); id., at 641 (even after the strike has ended, the "inherent conflict between the two groups remains" until the underlying contractual dispute has been resolved); Leveld Wholesale, supra, at 1350 ("It would be asking a great deal of any union to require it to negotiate in the best interests of strike replacements
The respondent in this case, therefore, had an employee bargaining unit a majority of whose members (1) were not entitled to have their best interests considered by the complainant union, (2) would have been foolish to expect their best interests to be considered by that union, and indeed (3) in light of their status as breakers of that union's strike, would have been foolish not to expect their best interests to be subverted by that union wherever possible. There was, moreover, not a shred of affirmative evidence that any strike replacement supported, or had reason to support, the union. On those facts, any reasonable factfinder must conclude that the respondent possessed, not necessarily a certainty, but at least a reasonable, good-faith doubt, that the union did not have majority support. At least three Courts of Appeals have effectively agreed with this assessment, considering strike replacements as opposed to the union in reversing Board findings of no reasonable, good-faith doubt. See Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1110 (CA1 1981); National Car Rental System, Inc. v. NLRB, 594 F.2d 1203, 1206-1207 (CA8 1979); NLRB v. Randle-Eastern Ambulance Service, Inc., 584 F.2d 720, 728-729 (CA5 1978).
In making its no-reasonable-doubt finding, the Board relied upon its decision in Station KKHI, which stated:
Also embarrassingly wide of the mark is the Court's observation that "[u]nions do not inevitably demand displacement of all strike replacements." Ante, at 790. It is not necessary to believe that unions inevitably demand displacement of all strike replacements in order to doubt (as any reasonable person must) that strike replacements support a union that is under no obligation to take their employment interests into account, and that is almost certain to demand displacement of as many strike replacements as is necessary to reinstate former employees. The Court does not accurately describe my position, therefore, when it suggests that I seek "to force the Board to apply a presumption based on the premise that unions always make such demands." Ante, at 793, n. 11. I seek to force the Board, as the APA requires, to give objectively reasonable probative effect to the reality (expressed in the Board's own opinions and made the basis for rules of law it has adopted) that unions almost always make such demands, and that replacement employees know that. That is enough to establish this employer's goodfaith doubt.
Surely an offer "on behalf of the striking employees . . . to return to work" can only be accepted by allowing the striking employees to return to work. Does the Court really mean to interpret the union's action as agreement that the strike replacements shall stay on the job under the terms of the May 25 collective-bargaining proposal, and the strikers remain unemployed? Or as a proposal that the employer should double its work force, paying both the replacement workers and the returning strikers under the terms of the May 25 offer? Surely the very most that can be said is that the union's offer left the status of the replacement workers for later negotiation. No more is necessary to establish a reasonable doubt that the replacement workers would support the union — which, in any such negotiations, could be expected (indeed, would have a legal obligation) to seek displacement of the strikebreakers by the returning strikers. As the Board said in Service Electric:
The Court mentions only as an afterthought the fundamental conflict of interests that is at the center of this case:
The trouble with this is that it posits a species of replacement worker that will rarely exist unless and until the union has agreed (as it had not in this case) to accept the replacements' employment status — i. e., until "job rights have been resolved." How can there be "a replacement worker whose job appears relatively secure" when the employer agrees to negotiate in good faith with a union that will surely seek the reinstatement of all its strikers? Even a replacement worker who has clear seniority over other replacement workers, and who somehow knows (by what means I cannot imagine) that some of the striking workers no longer want their jobs back,
The Court's only response to this is that the union's ability to achieve displacement of the strike replacements will depend upon its bargaining power. Its bargaining power could conceivably be so weak, and a strike replacement might conceivably so prefer this union over other alternatives, that he would be willing to take the chance that the union will try to oust him. Ante, at 790-791. I suppose so. It might also be that one of the strike replacements hopes the union will continue as the bargaining representative because, as the employer knows, the union president is his son-in-law. The Board Counsel is entirely free to introduce such special circumstances. But unless they appear in the record, the reasonableness of the employer's doubt must be determined on the basis of how a reasonable person would assess the probabilities — and it is overwhelmingly improbable that a
I reiterate that the burden upon the employer here was not to demonstrate 100% assurance that a majority of the bargaining unit did not support the union, but merely "reasonable doubt" that they did so. It seems to me absurd to deny that it sustained that burden.
The Court never directly addresses the question whether there was substantial evidence to support the Board's conclusion that respondent had not established a reasonable good-faith doubt of the union's majority status. Indeed, it asserts that that question is not even at issue, since "[t]he question on which we granted the Board's petition for certiorari is whether, in assessing whether a particular employer possessed a good-faith doubt, the Board must adopt a general presumption of replacement opposition to the union." Ante, at 778, n. 2. That is the equivalent of characterizing the appeal of a criminal conviction, in which the defendant asserts that the indictment should have been dismissed because all the evidence demonstrated that he was not at the scene of the crime, as involving, not the adequacy of the evidence, but rather the question whether the jury was required to adopt the general presumption that a person cannot be in two places at the same time. No more in administrative law than in criminal law is the underlying question altered by characterizing factual probabilities as presumptions. The two are one and the same. The only reason respondent asserts, and the Fifth Circuit held, that the Board had to adopt the "presumption"
Prior to its decision in Station KKHI, the Board well understood the inevitable logic set forth in Part II above, and had held that an employer has an objectively reasonable basis for doubting the union's majority status when the majority of employees in the bargaining unit are permanent replacements, and there is no other indication regarding the replacements' sentiments toward the union. See Beacon Upholstery Co., 226 N. L. R. B., at 1368; Titan Metal Mfg. Co., 135 N. L. R. B. 196, 215 (1962); Stoner Rubber Co., 123 N. L. R. B., at 1445. In a case called Cutten Supermarket, 220 N. L. R. B. 507 (1975), the Board departed, in dictum, from this well-established precedent. There, as the Board describes the case in Station KKHI, 284 N. L. R. B., at 1341, the Board "inexplicably stated," with respect to strike replacements: "[I]t is a well-settled principle that new employees are presumed to support the union in the same ratio as those whom they have replaced." 220 N. L. R. B., at 509. This dictum became a Board holding in Pennco, Inc., 250 N. L. R. B. 716 (1980), where the Board stated: "The Board has long held that [the presumption of strike replacement support for the union] applies as a matter of law, and it is incumbent upon Respondent to rebut it even, and perhaps especially, in the event of a strike." Id., at 717 (emphasis added). As the Board acknowledged in Station KKHI:
Unsurprisingly, given the feeble support for this presumption, the Courts of Appeals (I am still repeating the account in Station KKHI) "uniformly rejected it." Ibid.
In Station KKHI, which is the case that established the framework of reasoning for the decision we review today, the principal issue before the Board was the Pennco presumption of replacement support for the union. See 284 N. L. R. B., at 1340. The Board abandoned it. See id., at 1344. The Board went further, however, and here is the error that infects the present opinion:
The mistake here is to treat as equivalent elements of decisionmaking, the presumption that strike replacements do support the union, and the evidentiary inference that strike replacements do not support the union. They are not different applications of the same device, and it does not display a commitment to be governed only by the "real facts" to reject both the one and the other. The former was applied "as a matter of law," Pennco, supra, at 717, and not as the product of inference, which is "[a]process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved or admitted." Black's Law Dictionary 700 (5th ed.
It is the proper business of the Board, as of most agencies, to deal in both presumptions (i. e., presumptions of law) and inferences (presumptions of fact). The former it may create and apply in the teeth of the facts, as means of implementing authorized law or policy in the course of adjudication. An example is the virtually irrebuttable presumption of majority support for the union during the year following the union's certification by the Board, Station KKHI, 284 N. L. R. B., at 1340. The latter, however — inferences (or presumptions of fact) — are not creatures of the Board but its masters, representing the dictates of reason and logic that must be applied in making adjudicatory factual determinations. Whenever an agency's action is reversed in court for lack of "substantial evidence," the reason is that the agency has ignored inferences that reasonably must be drawn, or has drawn inferences that reasonably cannot be. As I have discussed above, that is what happened here.
It is true that Station KKHI added, seemingly as a makeweight: "Moreover, adoption of this presumption would disrupt the balance of competing economic weapons long established in strike situations and substantially impair the employees' right to strike by adding to the risk of replacement the risk of loss of the bargaining representative as soon as replacements equal in number to the strikers are willing to cross the picket line." Ibid. There are several reasons why
First of all, it is set forth as a reason for not adopting a counterfactual presumption, rather than (what would have been necessary to validate the agency's action) a reason for ignoring legitimate factual inferences. It is one thing to say: "The facts do not support conclusion X, and we decline to impose conclusion X as a matter of law, since that would have adverse policy consequences." It is quite another thing to say: "Even though the facts require conclusion X, we reject it for policy reasons." The former is what the Board has said here, and the latter is what it would have to say to support its decision properly on policy grounds. The agency has set forth a reason for rejecting the suggestion that it ignore the facts; having found that, on the record, the facts were the opposite of what the agency believed (i. e., there was reasonable good-faith doubt), we have no idea whether the agency would regard the same reason as adequate basis for now accepting a suggestion that it ignore the facts. Under long-established principles of judicial review, we cannot make that yet-to-be-made decision on the agency's behalf, but must remand so that the Board may do so. SEC v. Chenery Corp., 318 U.S. 80, 88 (1943).
Second, by upholding as a counterfactual policy determination a ruling that was made, and defended before the Fifth Circuit, as ordinary factfinding plus the refusal to adopt a counterfactual policy determination, we would be depriving respondent of possible legal defenses that it had no occasion to present to the courts. Section 8(a)(5) of the NLRA is violated only if the employer refuses to bargain "with the representatives" of his employees. 29 U. S. C. § 158(a)(5). The Act does not define the term "representatives," except to say that it "includes any individual or labor organization." § 152 (4). Specifically, it does not say or anywhere suggest that a certified union is the "representative" for purposes of § 158(a) (5) unless and until it is decertified. Because the Board has
* * *
Despite the fact that the NLRB has explicit rulemaking authority, see § 156, it has chosen — unlike any other major agency of the Federal Government — to make almost all its policy through adjudication. It is entitled to do that, see NLRB v. Bell Aerospace Co., 416 U.S. 267, 294-295 (1974), but it is not entitled to disguise policymaking as factfinding, and thereby to escape the legal and political limitations to which policymaking is subject. Thus, when the Board purports to find no good-faith doubt because the facts do not establish it, the question for review is whether there is substantial evidence to support that determination. Here there is not, and the Board's order should not be enforced.
What the Court has permitted the Board to accomplish in this case recalls Chief Justice Hughes' description of the unscrupulous administrator's prayer: " `Let me find the facts for the people of my country, and I care little who lays down the general principles.' " Address before Federal Bar Association, February 12, 1931, quoted by Frank, J., in United States v. Forness, 125 F.2d 928, 942 (CA2 1942), reprinted in 13 The Owl of Sigma Nu Phi 9, 12 (Feb. 1931). I respectfully dissent.
Briefs of amici curiae urging affirmance were filed for the Chamber of Commerce of the United States by John S. Irving and Stephen A. Bokat; and for the Manville Corporation by William J. Rodgers.
"(a) It shall be an unfair labor practice for an employer —
"(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
"(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title." 29 U. S. C. §§ 158(a)(1), 158(a)(5).
The American Federation of Labor and Congress of Industrial Organizations, as amicus curiae, urges us to reject the good-faith doubt standard and hold that an employer, before withdrawing recognition of the union, must show actual loss of majority status through a Board-conducted election. See also Flynn, The Economic Strike Bar: Looking Beyond the "Union Sentiments" of Permanent Replacements, 61 Temple L. Rev. 691, 720 (1988). This Court has never expressly considered the validity of the good-faith doubt standard. Cf. Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 41, n. 8 (1987) (citing Board's good-faith doubt standard without passing on its validity). We decline to address that issue here, as both parties assume the validity of the standard, and resolution of the issue is not necessary to our decision. See United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 60, n. 2 (1981).
Furthermore, the facts of this case belie JUSTICE SCALIA'S sweeping characterization of the inevitability of such demands, as the Union did not negotiate for the discharge of replacements as a condition for settling the strike. See infra, at 793. Contrary to JUSTICE SCALIA'S assertion, post, at 809, an unconditional offer to return to work is hardly the same thing as a demand that the employer discharge all the replacements and rehire the strikers as a condition for ending the strike. Here, at the time of respondent's withdrawal of recognition from the Union, there were only 19 strikers and 25 replacements. Thus, it is unlikely that all the replacements would have lost their jobs even if all the strikers were reinstated. Depending on their particular jobs and skills, some replacements might not have felt threatened by the Union's offer to have the strikers return to work. More importantly, a union's offer turns into a demand only if the union can back up its position with a credible show of economic force. As explained above, supra, at 790-791, a union with little bargaining power is unlikely to be able to pressure the employer to reinstate the strikers. Absent record evidence to the contrary, then, we have no basis for questioning the Board's factual finding that the Union was not pressing for discharge of the replacements in this case.