Thurgood Marshall

“ Consumers' reaction to a strike will also determine the union's bargaining position. If the employer's customers have no reluctance to cross the picket line and deal with the employer, the union will be in a poor position to bargain for a favorable settlement. Thus, a union's demands will inevitably turn on the strength of the union's hand in negotiations. A union with little bargaining leverage is unlikely to press the employer-at least not very forcefully or for very long-to discharge the replacements and reinstate all the strikers. ”

“ The Board's requirement of some objective evidence indicating replacements' opposition to the union does not amount to a requirement that the employer prove that the union in fact lacks majority status. To show a good-faith doubt, an employer may rely on circumstantial evidence; to show an actual lack of majority support, however, the employer must make a numerical showing that a majority of employees in fact oppose the union. ”

“ Although replacements often may not favor the incumbent union, the Board reasonably concluded, in light of its long experience in addressing these issues, that replacements may in some circumstances desire union representation despite their willingness to cross the picket line. Economic concerns, for instance, may force a replacement employee to work for a struck employer even though he otherwise supports the union and wants the benefits of union representation. ”

“ In addition, a replacement, like a nonstriker or a strike crossover, may disagree with the purpose or strategy of the particular strike and refuse to support that strike, while still wanting that union's representation at the bargaining table.
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. ”

“ 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 it." ”

“ 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:
" [U] nions often demand, at least in the first instance, that the replacements be discharged and the strikers rehired. Frequently, as in the instant case, the union's position may be modified in the course of the negotiations on the issues underlying the strike. Indeed, in the instant case, as the strike wore on, the Union took a progressively weaker position until . ”

“ 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, 107 S.Ct., at 2233 (quoting Brooks v. NLRB, 348 U.S. 96, 103, 75 S.Ct. 176, 181, 99 L.Ed. 125 (1954) ) . ”