Harry Blackmun

“ 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." ”

“ 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. ”

“ 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: "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. It is understandable that unions do not look with favor on persons who cross their picket lines and perform the work of strikers." ”

“ It seems overwhelmingly likely that the union will want its returning members to have their old jobs back, or better jobs, regardless of the relative seniority of the strikebreakers who would thereby be displaced. I do not dispute that "replacement workers are capable of looking past the strike in considering whether or not they desire representation by the union," ibid.-in the same way that a man who is offered $1 million to jump off a cliff is capable of looking past the probable consequence of his performance to contemplate how much fun he would have with $1 million if he should survive. ”

“ The wager is particularly bad because it is so unnecessary, since he and his fellow replacements could achieve the same objective, without risking their jobs in the least, by simply voting for that union, after the strike is over, in a new certification election.
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. ”

“ 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 strikebreaking replacement so much prefers the incumbent union to some other union, or to no union at all, that he will bet his job the union is not strong enough to replace him. ”

“ Nor is the question whether replacements would like to be represented by a union. Some perhaps would. But what the employer is required to have a good-faith doubt about is majority support, not for "union representation" in the abstract, but for representation by this particular complainant union, at the time the employer withdrew recognition from the union.
Also embarrassingly wide of the mark is the Court's observation that " [u] nions do not inevitably demand displacement of all strike replacements." ”

“ According to the Board, this is what happened:
employees, made an unconditional offer to return to work, thereby ending the strike. Later on the same day, the Union notified the Respondent that the bargaining unit employees had accepted the Respondent's 25 May collective-bargaining proposal." 287 N.L.R.B., at 351 (emphasis added) .
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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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." ”

“ 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. ”