NLRB v.
CURTIN MATHESON SCIENTIFIC, INC.: ANTI-UNION I
PRESUME? How THE HIRING OF STRIKE REPLACEMENTS AFFECTS
AN EMPLOYER'S DUTY TO BARGAIN IN GOOD FAITH
I.
INTRODUCTION
The National Labor Relations Act (NLRA)1 provides that
an employer must bargain with a union that attains majority
support of its employees. 2 Once a union gains majority support
through an election certified by the National Labor Relations
Board (the Board),3 there is an unrebuttable presumption that
the union's majority support continues for one year.4 Thus, any
failure of the employer to bargain with the union during that
one-year period constitutes an NLRA violation, otherwise known
as an unfair labor practice. 5
Once the one-year period expires, any refusal to bargain
1. 29 U.S.C. §§ 151-531 (1988).
2. See 29 U.S.C. §§ 158(a)(5) and 159(a). According to § 158(a)(5), "[i]t shall be an
unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section [159(a)]." Section 159(a)
provides:
Representatives designated or selected for the purposes of collective bargaining
by the majority of the employees . . . shall be the exclusive representatives of
all the employees . .. for the purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, or other conditions of employment.
Id.
3. See 29 U.S.C. § 153 (1988) (statute enacted by Congress that provides for creation and continuation of National Labor Relations Board).
4. See Brooks v. N.L.R.B., 348 U.S. 96, 103-04 (1954) (Supreme Court affirms
Board ruling that, absent special circumstances such as radical change in number of employees, union majority status is unrebuttably presumed for one year following boardcertified election).
5. See supra note 2. In general, an unfair labor practice is committed whenever the
acts of an employer or*union interfere with an employee's rights under 29 U.S.C. § 157.
Section 157 provides:
Employees must have the right to self-organize, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective bargaining ... and shall have the right to refrain from any or all of such
activities except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of
employment.
Id.
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with the union may still result in an unfair labor practice.8 However, there no longer exists an unrebuttable presumption of majority support for the union. 7 Instead, the employer can rebut
the presumption of majority support by showing (1) that the
union, in fact, no longer enjoys majority support, or (2) that the
employer has a "good faith doubt" as to majority support,
"founded on a sufficient objective basis."" If the presumption is
successfully rebutted, the employer no longer has a duty to bargain with the union.' Determining what constitutes a "good faith
doubt" in union majority support is a question of fact for the
10
Board and the courts.
In NLRB v. Curtin Matheson Scientific, Inc., the United
States Supreme Court addressed the issue of whether, in ruling
on an employer's "good faith doubt," the Board must adopt a
presumption that employees hired to replace strikers do not
support the union.". In a tenuous five-four decision 2 the Court
held that such a presumption could not be the basis for an employer's "good faith doubt" as to union majority support. In doing so, the Court overruled a divided Fifth Circuit opinion 3 and
resolved an issue on which the other circuits were split.'4
6. See supra note 2 and accompanying text for a discussion of how refusing to
bargain with an incumbent union is a violation of the NLRA.
7. Brooks v. N.L.R.B., 348 U.S. 96, 103-04 (1954). See also Fall River Dying &
Finishing Corp. v. N.L.R.B., 482 U.S. 27, 38 (1987) (quoting Court's holding in Burns
Int'l Sec. Servs., Inc. v. N.L.R.B., 406 U.S. 272, 279 n.3).
8. N.L.R.B. v. Curtin Matheson Scientific, Inc., 110 S. Ct. 1542, 1545 (1990). According to Curtin Matheson, the employer must show that the union no longer enjoyed
majority support at the time the employer refused to bargain with it. Id.
9. Id.
10. Id. at 1545 n.2 (Board's findings that employer possessed "good faith doubt" as
to union's majority status must have been based on substantial evidence).
11. Id. at 1545.
12. Curtin Matheson, 110 S. Ct. at 1544. Justice Marshall, in writing the majority
opinion, was joined by Chief Justice Rehnquist and Justices Brennan, White and Stevens. Id. Justice Blackman wrote a dissenting opinion. Id. at 1555 (Blackman, J., dissenting). Justice Scalia, joined by Justices Kennedy and O'Connor, separately dissented. Id.
at 1557 (Scalia, J., dissenting). Finally, Chief Justice Rehnquist wrote a concurring opinion that countenanced the majority's holding, but severely questioned its reasoning. Id.
at 1555 (Rehnquist, C. J., concurring).
13. Curtin Matheson Scientific, Inc. v. N.L.R.B., 859 F.2d 362 (5th Cir. 1988).
14. Curtin Matheson, 110 S. Ct. at 1549 n.7 (listing various circuits' views on issue
of whether employers can show "good faith doubt" about union majority status by
presuming replacement employees are anti-union). The First, Fifth, and Eighth Circuits
endorse the view that strike replacements are anti-union. Id. In contrast, the Second and
Sixth Circuits have rejected the anti-union presumption. Id. The Ninth Circuit has not
1992]
NLRB v. CURTIN MATHESON
This Comment will first provide a brief background to the
history of the American labor movement" and to the development of federal labor statutes."6 The role of the Board in resolving labor disputes, as well as key provisions of the NLRA, will
also be explored. 17 This Comment will next examine the Supreme Court's decision in Curtin Matheson, and compare the
reasoning of the majority opinion with that of the dissenting
opinions.18 Chief Justice Rehnquist's concurrence will also be
discussed.' 9 Finally, this Comment will discuss the potential
negative impact the Curtin Matheson ruling may have on employers in future labor cases.2 0
II.
A.
BACKGROUND
A Brief Look at the American Labor Movement
The constant struggle between labor and management
formed its roots early in the history of American society. 21 Since
the days of the first trade unions in the early 1800's, employee
expressly rejected the anti-union presumption, but has affirmed the Board's no-presumption rule. Id.
15. See infra notes 21 to 38 and accompanying text for a brief discussion of the
history of the American labor movement.
16. See infra notes 39 to 62 and accompanying text for a discussion of the evolution of federal labor law statutes.
17. See infra notes 63 to 78 and accompanying text for a discussion of key NLRA
provisions.
18. See infra notes 108 to 147 and accompanying text for a discussion of the Curtin
Matheson majority opinion.
19. See infra notes 148 to 157 and accompanying text for a discussion of Chief
Justice Rehnquist's concurring opinion in Curtin Matheson.
20. See infra notes 243 to 259 and accompanying text for a discussion on the potential negative impact of Curtin Matheson.
21. See DOUGLAS L. LESLIE. CASES AND MATERIALS ON LABOR LAW 1-11 (1979) (giving brief history of American labor law movement). It is said that the first recognized
strike in America was called by Philadelphia printers in 1796. Id. at 1. The early days of
the labor movement were unstable ones, marked by a substantial lack of formal organization. Id. Often, the early unions were formed, not in an effort to promote better general
working conditions, but to promote issues of particular interest to craftsmen. Id. Skilled
workers organized first, due to their education and commitment to their trade because of
time invested in apprenticeships. Id. The early unions were faced with constant hostility
from employers, as well as the courts. Id. In fact, most courts held that strikes were
actually common law criminal conspiracies. Id. See also 3 COMMONS AND GILMORE. A
DOCUMENTARY HISTORY OF AMERICAN INDUSTRIAL SOCIETY 59 (1910) (discussing famous
PhiladelphiaCordwainer'sCase of 1806, where court found that strike for higher wages
by shoemakers was criminal conspiracy). See infra notes 24 to 40 and accompanying text
for a general discussion of the evolution of labor organizations.
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representatives have sought to secure the most beneficial working conditions for laborers.2 s In contrast, employers have gone to
great lengths in their efforts to retain autonomy over control of
23
their work forces.
Labor unions first began to emerge in this country in its
larger cities at the end of the eighteenth century.24 These early
unions had a distinctly local character, consisting of workers
with one specific skill or craft. 25 Like most organizations in their
nascent stages, the first unions lacked- structure and stability.26
According to one author, "[t]he overshadowing problem of the
American labor movement [was] the problem of staying
27
organized.
Philadelphia saw the formation of the first centralized labor
union in 1827, thus witnessing the introduction of a new labor
organization concept distinct from the independent unions of
the past. 28 The Mechanics Union of Trade Associations, comprised of a group of local Philadelphia unions, represented workers of various trades, rather than workers of just one discipline. 29
City-wide trades' unions, or city centrals, also began to emerge
during this period.3 0 A group of these city centrals coalesced in
1834 to form the National Trades' Union, the first national labor
22. See 11 ARCHIBALD Cox, ET AL, LABOR LAW, CASES AND MATERIALS 12 (1991). The
National Trades' Union, founded in 1834, was formed primarily for the purpose of
achieving the ten-hour work day. Id.
23. See LESLIE, supra note 21, at 4 (describing early incidents where employers
used force to keep unions from infiltrating their ranks).
24. See 2
BERNARD
D.
MELTZER, CASES, MATERIALS, AND PROBLEMS
2 (1977). Unions
naturally evolved in large cities because these cities contained large numbers of workers
engaged in the same trades, and because distinct groups of employees and employers
emerged. Id.
25. Id. The early unions consisted primarily of skilled workers. Id. See also supra
note 22 and accompanying text for reasons why the early unions were formed by mostly
skilled tradesmen.
26. Id. Instability in the early unions can be attributed to waning interest, employer hostility, and economic depressions that compelled workers to constantly relocate
and search for employment. Id.
27. See S. PERLMAN, A THEORY OP THE LABOR MOVEMENT 162 (1928).
28. See LESLIE, supra note 21, at 2. The first centralized union was the Mechanics
Union of Trade Associations. Id. A few such trade associations still exist today; however,
they do not serve as collective bargaining representatives, but offer support to strikers
and engage in political activities. Id.
29. See MELTZER, supra note 24, at 2 (discussing general makeup of trades'
associations).
30. Id. at 3. Most of these city-wide organizations developed in eastern locations.
19921
NLRB v. CURTIN MATHESON
organization . 3
The 1850's witnessed the emergence of international labor
organizations, their formation precipitated by the expansion and
improvement of transportation and communications-3 2 The Civil
War, marked by a tight market, also spurred the labor community to form more labor organizations. 33 With the economic up34
swing of the late 1800's, labor activity continued to increase.
By the turn of the century, two labor organizations dominated the labor scene: the Knights of Labor and the American
Federation of Labor (AFL), although the Knights of Labor were
in a "steep decline, due to . . . 'titanic' lack of leadership."36
Though both organizations were founded on differing philosophies, their presence was representative of the increasingly important role unions were playing in the country by the twentieth
century.36
As the first half of the century progressed, the labor movement experienced vicissitudes in response to wartime economies,
economic depression, and other permutations in the Nation's industrial society.37 However, the role of labor organizations in the
United States became firmly established, and in response to
union influence and impact, Congress enacted a series of legislation intended to protect labor organizations and govern labor
31. Id. See also Cox, supra note 22, at 12 for a discussion of the motive behind
forming the National Trades' Union.
32. See LESLIE, supra note 21, at 3. These unions were labelled "international"
because of their Canadian affiliates. Id. The railroad industry was primarily responsible
for the development of international unions; railroads allowed goods to be shipped to
compete with goods in other areas, thus creating competition and its attendant
problems. Id. The international unions were formed to deal with these problems, as well
as to work out rules for the transfer from one local union to the other. Id.
33. Id. The National Labor Union was formed in 1866, comprised of "local unions
in various crafts, central city federations and international unions." Id.
34. See id. at 2-3 (noting that, while depression of 1870s hurt unions, economic
upturn of later 1800's regenerated them).
35. . See Cox, supra note 22, at 12-13. The AFL and the Knights of Labor promulgated opposing philosophies; while the Knights of Labor supported humanitarian, reformist action by political means, the AFL was a proponent of aggressive bargaining,
with the ultimate goal being the securing of the best wages and working conditions. Id.
at 13.
36. See LEE BALLIET. SURVEY OF LABOR RELATIONS 29 (1981) (noting that from
1890s to 1920, union membership increased to over five million workers, representing 12
percent of the work force).
37. See generally id. at 30-37 (providing survey of labor movement's development
from post-World War I to 1950s).
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disputes."
B.
Highlights of Federal Labor Legislation
1.
The Norris-LaGuardiaAct
The Norris-LaGuardia Act 3" was the first piece of federal
legislation that clearly supported labor union activity. 40 The Act
was designed to remove labor activities out of the ambit of the
antitrust laws, which, inter alia, prohibited contracts that restrained trade.4 1 The Act also denied federal courts jurisdiction
over issuing injunctions in ordinary labor disputes and severely
limited their jurisdiction over boycotts, pickets, and strikes. 42 In
addition, section 103 of the Act rendered unenforceable contract
to join
freedom
limited employees'
provisions that
organizations.43
2.
The Wagner Act
The Wagner Act, enacted in 1935, is the legislative underpinning upon which all present federal labor law was built.44 The
Act constituted an unequivocal statement of federal policy that
the government's role was to promote and regulate collective
38. See generally id. at 45-56 (describing congressional purpose behind enacting
statutes that effected labor movement, from Norris-LaGuardia to Landrum-Griffin Act).
39. 29 U.S.C. §§ 101-15 (1988).
40. See BALLIET, supra note 36, at 50.
41. See Cox, supra note 22, at 32. Although the antitrust laws were passed primarily to preclude suppliers and manufacturers from price-fixing and regulating the supply
of goods, they were more often invoked in efforts to stop union activity. Id.
42. 29 U.S.C. § 105 (1988). See also BALLIET, supra note 36, at 50.
43. The text of 29 U.S.C. § 103 reads:
Any undertaking or promise, such as is described in this section, or any other
undertaking or promise in conflict with the public policy . . . of this Act, is
hereby declared to be contrary to the public policy of the United States, and
shall not be enforceable in any court of the United States.
Id.
The public policy of the Norris-LaGuardia Act was embodied in section 102:
[Tihe public policy of the United States is... that fall employees shall] have
full freedom of association, self-organization, and designation of representatives of [their] own choosing, to negotiate the terms and conditions of ...
employment, and that [they] shall be free from the interference, restraint, or
coercion of employers ..-in the designation of such representatives or in selforganization.
44.
See 29 U.S.C. §§ 151-69 (1988).
NLRB v. CURTIN MATHESON
1992]
The Wagner Act's key labor provisions were de-
bargaining."
rived from the National Industrial Recovery Act (NIRA), a piece
of New Deal legislation deemed unconstitutional by the Supreme Court.4 6 The most notable NIRA provision embodied in
the Wagner Act was section 157, which set forth the substantive
rights of all employees as follows: "Employees shall have the
right to form self-organizations, join, or assist labor organizations, to bargain collectively through. representatives of their
own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
47
protection."
In addition to setting forth employees' general rights, the
Act proscribed certain types of employer conduct. 48 The following employer conduct was deemed an unfair labor practice:
(1) Interference with employee rights of self-organization; (2) Domination of or interference with formation and administration of unions;
45. See 29 U.S.C. § 151. The language of the statute in pertinent part is as follows:
It is hereby the policy of the United States to eliminate the causes of certain
substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice
and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.
Id.
See also BALLIET, supra note 36, at 52. According to the author:
Congress, in the Wagner Act, declared that the policy of the United States was
to encourage the practice of collective bargaining and full freedom of worker
organization. The (statute] placed the full power of the federal government
behind trade unionism.
Id.
The aggressive role adopted by the government in the Wagner Act was "an
[albandonment altogether [of] the remnants of the laissez-faire philosophy calling for
government neutrality with respect to economic enterprise." Id.
46. See Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (invalidating
National Industrial Recovery Act as attempt by Congress to regulate business transactions not part of interstate commerce).
47. 29 U.S.C. § 157 (1988). See supra note 5 and accompanying text for a discussion
of the interference of section 157 rights as an unfair labor practice. See also N.L.R.B. v.
Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (upholding constitutionality of labor
provisions of Wagner Act derived from defunct NIRA).
48. See 29 U.S.C. § 158(a)(1)-(5) (1988). Violations of these statutory provisions are
unfair labor practices under today's NLRA. Id. See infra notes 68 to 74 and accompanying text for a discussion of sections 158(l)(a) and 158(a)(5) of the National Labor Relations Act.
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(3) Discrimination to encourage or discourage union membership; (4)
Employee discrimination or discharge for filing unfair labor practice
charges or giving testimony under the [NLRA] and (5) Refusal to bargain with the duly chosen representative of employees."'
The Wagner Act also created procedures by which allegedly
unfair labor practices could be brought before the newly created
National Labor Relations Board for investigation and adjudication. 5° Board decisions, however, could only be enforced by a
federal court, as the Act provided.5 ' In addition, any party "aggrieved by a final order of the Board granting or denying ...
relief sought," could also seek review in federal court.5 2
3.
The Taft-Hartley Act
The Taft-Hartley Act was passed as a series of amendments
to the Wagner Act, and represented the government's efforts to
abate the exponential growth of union power and activism that
existed after World War 1I.5 The Act imposed on unions the
same prohibitions against interference with workers' rights that
the Wagner Act imposed on employers.5 4 The Taft-Hartley Act
also made it clear that employees were free not to engage in
union activity if they so desired, a concept unaddressed in previ49.
BALLIET, supra note 36, at 53.
50. See MELTZER, supra note 24, at 32 (noting that the then three-member NLRB
had a duel role of prosecutor and judge). Sections 152 to 156 of the Wagner Act created
the NLRB. 29 U.S.C. §§ 153-56 (1988).
51. 29 U.S.C. § 160(e)(1988). The statute provided that:
"[tihe Board shall have power to petition any [United States] court of appeals ... for
the enforcement of [their] orders] and for appropriate temporary relief or [a] restraining order." Id.
52. 29 U.S.C. § 160(0 (1988).
53. See MELTZER, supra note 24, at 32-33. According to the author, "[a]n important
factor in [the Taft-Hartley Act's] enactment had been . . .a rash of postwar strikes,
which had deepened concern about union 'power' and which ... caused unions to be
blamed for price increases." Id. The Act is codified at 29 U.S.C. §§ 141-97 (1988).
54. 29 U.S.C. §§ 158(b)(1)-(4) (1988). An example of one of these union prohibitions
is § 158(b)(1): "It shall be an unfair labor practice for a labor organization or its agents (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section
157 ....
" Id. See also Note, Some Aspects of the Labor Management Recovery Act, 61
HARV. L. REV. 1, 24-25 (1947) (discussing 29 US.C. § 158(b)(1) (Supp. July, 1947) TaftHartley Amendments). Under Taft-Hartley, it is an unfair labor practice for unions to
"restrain or coerce employees in the exercise of the rights guaranteed by [the Wagner
Act]." Id. at 25. Compare with 29 U.S.C. § 158(a)(1) (1988) (proscribing employer interference with employee rights).
1992]
NLRB v. CURTIN MATHESON
ous statutes.5 In addition, the Act provided for the exercise of
an employer's free expression concerning its views on unions,
subject to some limitation.5 6 The Act also incorporated other restrictive provisions into the existing legislation to further curb
union influence.5 " Essentially, the passage of Taft-Hartley
evinced a reversal of federal labor policy; where the Wagner Act
explicitly encouraged union activity and collective bargaining,
the Taft-Hartley Act-represented a "more neutral government
posture" as to labor relations. 8
4.
The Landrum-Griffin Act
In 1959, further amendments to labor legislation were enacted."9 Codified at 29 U.S.C. sections 401-531, the LandrumGriffin Act was enacted to counter union corruption that had
proliferated during the 1950's.60 The Act contained complex and
exacting union reporting procedures, designed to cure financial
malfeasance and regulate union affairs.6 1 Landrum-Griffin also
promulgated a bill of rights for union members, which gave unionized employees the right to attend, participate in, and vote
on union business. 2
55. See 29 U.S.C. § 157 (1988). Section 157 provides that "[e]mployees shall have
the right ...to refrain from any or all [union] activities except to the extent that such
right may be affected by an agreement requiring membership in a labor organization as a
condition of employment." Id.
56. 29 U.S.C. § 158(c). According to section 158(c): [t]he expressing of any views,
argument, or opinion, or the dissemination thereof, whether in written, printed, graphic,
or visual form, shall not constitute ... an unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of
benefit. Id. See also N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969) (in deciding
whether employer's statements about union are protected under section 158(c), court
must judge impact of statements on election climate).
57. See LESLIE, supra note 21, at 10 for a discussion of other limitations the TaftHartley Act imposed upon labor organizations.
58. Id. (recognizing reversal of government policy through passage of TaftHartley).
59. See BALIS'T, supra note 36, at 56. The Landrum-Griffin Act is officially named
the Labor Management Reporting and Disclosure Act. Id.
60. Id. (noting that public attention in 1950's was focused on corruption and lack
of democracy in union operations). The Teamsters, one of the most powerful unions, was
a primary target for legislation under Landrum-Griffin. Id.
61. See BALIgr, supra note 36, at 56 (brief explanation of Landrum-Griffin Act's
provisions).
62. See 29 U.S.C. § 411 (1988). See also LESLIE, supra note 21, at 56 (discussing
Act's bill of rights).
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C. Key Provisions of the National Labor Relations Act
The present National Labor Relations Act (the Act) is comprised of the original Wagner Act and all subsequent amendments. 3 The goal behind the Act is as follows: to ensure employee freedom in engaging in, or not engaging in, union
activities; to preclude employer interference with employees'
rights under the Act; and to prevent unwarranted union activity
aimed at obstructing commerce."' Pertinent to this Comment
are Sections 157, 158(a)(1), 158(a)(5), 159(a), and 159(c).
1. Section 157
As discussed earlier, section 157 embodies the general rights
of an employee under the Act.6 5 Pursuant to this section, employees are free to engage in, or not to engage in, union activities. 6 Any interference with an employee's section 157 rights is
an unfair labor practice.6 7
2. Section 158(a)(1)
Pursuant to section 158(a)(1), an employer commits an unfair labor practice by interfering with, restraining, or coercing
employees in the exercise of their section 157 rights. 8 This section is most frequently invoked by unions alleging employer unfair labor practices.69 Given its broad scope, section 158(a)(1) is
frequently invoked by unions as a back-up provision when alleging other, narrower violations.7
3. Section 158(a)(5)
Under Section 158(a)(5), an employer commits an unfair la63. 29 U.S.C. §§ 151-531 (1988).
64. See 29 U.S.C. § 151 (enumerating policies behind NLRA).
65. 29 U.S.C. § 157 (1988). See also supra note 5 and accompanying text for an
example of the section 157 text.
66. 29 U.S.C. § 157 (1988).
67. 29 U.S.C. § 158. (discussing what constitutes unfair labor practices).
68. 29 U.S.C. § 158(a)(1) (1988). The analogue to section 158(a)(1) pertaining to
unions is section 158(b)(1).
69. See N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969) (implying that
158(a)(1) is most frequently invoked by labor unions).
§
70. Id. Gissel Packing Co. 395 U.S. at 595 (giving example of four cases where
unions alleged violations of § 158(a)(1) with violations of § 158(a)(5)).
1992]
NLRB v. CURTIN MATHESON
bor practice by refusing to collectively bargain with representatives of its employees. 1 This section is frequently cited when
employers refuse to recognize a union's majority support obtained by means other than a board-certified election.72 Courts
have held that violations of section 158(a)(5) also give rise to
violations under section 158(a) (1).7 3 An employer's duty to barto unions that have atgain under this section only pertains
74
tained employee majority support.
4.
Sections 159(a) and 159(c)
These sections provide that a representative that attains
majority support of employees shall be those employees' exclusive bargaining representative.7 5 A union can show majority support by winning a board-certified election as prescribed by section 159(c) of the Act.76 Unions can also demonstrate majority
support by other methods, such as obtaining a majority of signatures on authorization cards, or by organizing a strike by a majority of the workers." Once majority status is established, the
union is entitled to bargain with the employer.78
III.
A.
THE DECISION
The Facts
Curtin Matheson Scientific, Inc. (the Company) is engaged
71.
29 U.S.C. § 158(a)(5)(1988).
72. See Gissel Packing Co. 395 U.S. at 575 (finding § 158(a)(5) violation by employers who refused to recognize union majority status obtained through employee signatures on authorization cards).
73. Gissel Packing Co. 395 U.S. at 575 (discussing cases that allege violations of a §
158(a)(1) and § 158(a)(5) concurrently).
74. 29 U.S.C. § 159(a) (1988).
75. 29 U.S.C. §§ 159(a), (c).
76. 29 US.C. § 159(c). Under section 159(c), if the Board finds that a question of
representation exists, it "shall direct an election by secret ballot and shall certify the
results thereof." Id. See also 5 KENNETH C. McGun ,ss & JEFFERY A. NORRIS, How To
TAKE A CASE BEFORE THE NLRB 180-231 (1986). The authors give a comprehensive explanation of union election procedures under the Act. Id.
77. See Gissel Packing Co., 395 U.S. 575 (1969) (holding that unions can gain majority support by having majority of employees fill out cards that state employees' desire
to have union represent them).
78. See 29 U.S.C. § 158(a)(5) (1988). See also supra notes 1-10 and accompanying
text for a discussion of how long employers must recognize union majority status.
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in selling laboratory instruments and supplies.7 As part of its
operations, it maintains a warehouse in Houston, Texas.80 In
1970, the Board certified Local 968, General Drivers, Warehousemen and Helpers (the Union), as the bargaining representatives for those company employees working at the Houston
warehouse.8 1
On May 21, 1979, the last bargaining agreement between
the Company and the Union expired."2 Upon expiration of the
agreement, the parties tried unsuccessfully to enter into a new
contract.13 On May 25, 1979, the Company made a final offer as
to wages which the Union rejected on May 29, 1979.84 The Company subsequently "locked out" all twenty-seven of its unionized employees from June 4 to June 12, 1979.85 On June 12,
1979, the Company again renewed its offer of May 25, but the
Union again rejected it."
The Union began an economic strike on June 13, 1979,
which continued for over one month. 7 Five out of the twentyseven unionized employees crossed the picket line and returned
to work. 8 With the strike still in progress, the Company put
into affect the wage schedule previously rejected by the Union, 9
and hired twenty-nine replacement personnel. s° On July 16,
1979, the Union ceased to strike and unconditionally offered to
have all employees return to work. e1 The Union also informed
79. Curtin Matheson Scientific, Inc. v. N.L.R.B., 859 F.2d 362, 364 (5th Cir. 1988).
80. Id.
81. Id. Local 968 was affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. Id.
82. Id. A collective bargaining agreement is a contract between the employer and
the union setting forth the terms and conditions of employment. Id.
83. Curtin Matheson, 859 F.2d at 364.
84. Id.
85. Id. "Lockout" is a stratagem employed by management to countermand strikes.
Essentially, the employer disallows its unionized employees to come to work if it fails to
reach an agreement with the striking union. Id.
86. Id.
87. Curtin Matheson, 859 F.2d at 364. Though about 20 percent of the employees
crossed the picket lines, there was, no evidence of strike-related violence. Id.
88. Id.
89. Id. The wage schedule which the union rejected on May 25, 1979 was put into
effect on June 17, 1979. Id.
90. Id. Although 22 employees went on strike, the Company hired 27 new replacements to "compensate for the new workers' inexperience and to allow for attrition." Id.
91. Curtin Matheson, 859 F.2d at 364. About the time the Union made its offer, 19
employees were still on strike. Id. The five cross-over employees, and 25 out of the 29
NLRB v. CURTIN MATHESON
19921
the Company that it accepted the May 25, 1979 wage proposal
and requested that the parties execute a new bargaining agreement.2 On July 20, 1979, the Company informed the Union that
the May 25, 1979 offer was no longer available; the Company
also stated that it was withdrawing recognition of the Union as
its employees' bargaining representative, and refused to bargain
any further.9 3 The Company based its refusal to bargain on its
doubt as to whether the union still retained majority support.,
On the same day the Union was informed of the Company's
refusal to bargain, the Union requested that the Company furnish a list of the total number of unionized employees on the
payroll. 95 The Company did not supply this information to the
Union.96 Based on the Company's refusal to bargain or execute a
contract, and its subsequent refusal to furnish the information
concerning the unionized employees, the Union filed an unfair
labor practice claim with the Board on July 30, 1979.97
B,
Procedure
The Union alleged violations of sections 158(a)(1) and
158(a)(5) of the Act in bringing charges of unfair labor practices
against the Company." The Board ruled that the Company violated section 158(a)(5) by withdrawing recognition of union majority status and refusing to bargain.9
The Board applied the Brooks v. NLRB 10 0 rule which provided the following: once the Union's initial attainment of majority status had passed the one-year mark, the Company could
replacement workers, were still with the Company. Id.
92. Id.
93. Id.
94. Id. See supra notes 8 to 10 and accompanying text for a discussion about when
an employee can refuse to bargain with an incumbent union, based on a doubt about
whether the union still enjoys majority support from employees.
95. Curtin Matheson, 859 F.2d at 364. The Union also requested that the Company furnish information concerning the job classification and seniority of each union
employee. Id.
96. Id.
97. Id. See infra notes 98 to 107 and accompanying text for a discussion of the
procedural aspects of this case.
98. Id.
99. Curtin Matheson Scientific, Inc., 287 N.L.R.B. 35 (1987).
100. 348 U.S. 96, 103-04 (1954) See supra notes 1 to 10 and accompanying text for
a discussion of the Brooks rule.
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rebut current majority status by showing a "good faith doubt"
as to whether majority support currently existed.1 01 The Board
held that the Company could not satisfy the Brooks rule of
"good faith doubt" by presuming that its replacement workers
were anti-union. The Board also held that the Company violated
Section 158(a)(1) of the Act by refusing to execute a contract
and furnish the requested employee information to the Union.0 2
The Company appealed the Board's decision to the United
States Court of Appeals for the Fifth Circuit.' 0a The Court of
Appeals reversed the Board's decision in a divided opinion,
holding that the Company's "good faith doubt" as to majority
status was justified.10 4 Thus, the Company had no duty to bargain with the Union, supply it with information, or execute a
union contract. 0 5
The Supreme Court granted certiorari based on the Union's
petition.10° The Court wished to resolve a circuit split on the
question of whether the Board must presume anti-union sention an employer's
ment in replacement employees when ruling
"good faith doubt" under the Brooks rule.10 7
C.
The Majority Opinion
In its decision, the majority first acknowledged the Brooks
test, holding that it was applicable to this case. 0 8 The majority's
view of the rule was as follows: (1) One year after a certified
election, a union enjoys a rebuttable presumption of employee
majority support; (2) an employer wishing to cease bargaining
with the union has the burden of showing that the union no
longer has such "support in fact," or that the employer has a
"good faith doubt" whether such majority support exists; (3) to
101. See Curtin Matheson Scientific, Inc., 287 N.L.R.B. 356, 357 (1987).
102. Id. at 358.
103. Id. at 362. See 29 U.S.C. §§ 160(e), (f) (giving court jurisdiction to hear Company's appeal).
104. CurtinMatheson, 859 F.2d at 367 (supporting Company's good faith doubt as
to union majority status, since over 80 percent of employee work force was replaced during strike).
105. Id.
106. 109 S. Ct. 3212 (1989).
107. N.L.R.B. v. Curtin Matheson Scientific, Inc., 110 S. Ct. 1542, 1548-49 (1990).
108. Id. at 1545 (citing Brooks-rule as enumerated by Buckley Broadcasting System (Station KKHI), 284 N.L.R.B. 1339 (1987)).
19921
NLRB v. CURTIN MATHESON
see if the employer met its burden, the Board looks at the individual circumstances of the dispute. 0 9
The majority then discussed the Board's prior decisions in
applying the Brooks rule to labor disputes analogous to the instant case, where an employer based a "good faith doubt" as to
majority status on its hiring of replacement workers.110 The majority noted that the Board had equivocated on the issue., Initially, the Board held that it "was most improbable" that
replacements desired union representation."' Later, the Board
reversed its view, ruling that "it is of course possible that
replacements... might favor representation." 1 The Board continued to vacillate on the issue1 14 until the late 1980's, when it
decided Buckley'Broadcasting Corp. (Station KKHI).11 5 In Station KKHI, the Board held that no presumption about replacement employees' union views, either for or against unions, was
1
valid. '
Before deciding on the instant case, the majority briefly reviewed the Board's decision. 7 The Board, before addressing the
Company's presumption of replacements' anti-unionism, had rejected the Company's other justifications for having a "good
109. Id. at 1549-50.
110. Id. at 1545.
111. Curtin Matheson, 110 S. Ct. at 1545 (noting that Board's approach had been
inconsistent).
112. See Titan Metal Mfg. Co., 135 N.L.R.B. 196, 215 (1962) (holding that employer had "good faith cause to doubt union majority" because no evidence demonstrated that replacement employees would have sought union representation).
113. Peoples Gas Systems, Inc., 241 N.L.R.B. 944 (1974). Compare National Plastics Products Co., 78 N.L.R.B. 699, 706 (1948) (holding that where nonstriking employees are replaced, Board has long presumed that new hires support union).
114. See Beacon Upholstering Co., 226 N.L.R.B. 1360, 1368 (1976) (holding that
presumption of replacement employees' union support was unwarranted). But see
Windham Community Memorial Hospital, 230 N.L.R.B. 1070 (1977) (holding that the
general rule is that replacement workers are presumed to support union).
115. 284 N.L.R.B. 1339 (1987).
116. Id. The Board found that the pro-union presumption was untenable because
"incumbent unions and strikers... have shown hostility toward .. replacements," and
because "replacements are typically aware of . . . [unions'] primary concern for the
striker's welfare, rather than that of the replacements." Id. at 1344. The Board equally
rejected the anti-union presumption concerning replacement employees' sentiments. Id.
According to the Board, even though a replacement employee might disapprove of the
strike, or be forced to cross the picket line, he may generally approve of union representation. Id.
117. Curtin Matheson, 110 S. Ct. at 1547-49.
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faith doubt" as to the Union's majority status. 18 The Board had
then applied its Station KKHI no-presumption rule, asserting
that the question of possible anti-unionism by replacement employees should be addressed on a case-by-case basis.111 According to the Board, additional evidence must have been introduced
to show anti-union sentiment by replacements. 20 In this case,
the Company failed to introduce such evidence.' 21 Thus, the
Board concluded that, pursuant to Brooks, the Company had
failed to rebut the presumption
of Union majority status based
22
on a "good faith doubt.'
The majority based its own opinion on two premises: (1)
that the promulgation of Board rules creates national labor policy; and, (2) that the Board's no-presumption approach announced in Station KKHI was a Board rule. 2 3 Thus, according
to the majority, the issue the case turned on was whether the
24
Board's no-presumption rule was valid in light of the NLRA.
In answering this question, Justice Marshall, writing for the
majority, first acknowledged the Court's longstanding deference
118. Id. at 1547-48. The Company had also based its "good faith doubt" on two
other factors: (1) that the five nonstriking employees were anti-union; and, (2) that
strong anti-union statements were made by six striking employees. Id. at 1548. According
to the Board, the five nonstriking employees may have had other grounds for crossing
the picket line rather than anti-unionism. Id. at 1547-48.
119. Id. at 1548.
120. Id.
121. Curtin Matheson, 110 S. Ct. at 1548. According to the Board, the only evidence concerning the replacements' union views were the allegedly anti-union comments
made by one replacement worker. Id. The Board was not convinced that the comments
evinced the replacement worker's anti-unionism. Id. Moreover, even if the comment did
prove the replacement's anti-unionism, it was not dispositive of the anti-unionism of all
the replacements. Id.
122. Id. Accordingly, the Board held that the Company violated sections 158(a)(1)
and 158(a)(5) of the Act. Id.
123. Id. at 1549-50. According to the majority, the Board, via a congressional mandate, has the "primary responsibility for developing and applying national labor policy."
Id. at 1549. In order to meet this responsibility, the Board "must have authority to formulate rules that fill the interstices of the (Act's] broad statutory provisions." Id. (quoting Beth Israel Hospital v. N.L.R.B., 437 U.S. 483, 500-01 (1978)). The majority considered the no-presumption approach a Board rule because it analyzed the approach as it
would any other Board rule. Id. at 1549-50.
124. See Curtin Matheson, 110 S. Ct. at 1549 (holding that the court will uphold
Board rule if it is, inter alia, consistent with the NLRA). But see infra note 160 and
accompanying text for a discussion of Justice Scalia's dissenting view that the issue in
this case is one of fact, whether the Company had substantial evidence to have "good
faith doubt" as to union majority status. Id.
1992]
NLRB v. CURTIN MATHESON
to Board rules."' Historically, the Court would "uphold a Board
rule as long as it [was] rational and consistent with the Act.' 2 6
Even rules that departed from prior Board policy, like the nopresumption rule, would be upheld if, as stated above, it was
rational and consistent with the Act.127
The majority then analyzed the no-presumption rule and
found that it was rational. 2 8 The Court arrived at this conclusion because it found no sufficient basis for a presumption of
anti-union sentiment by replacement employees.2 M The Court,
like the Board, concluded that replacement workers are not always anti-union; they often desire union representation even
though they cross the picket line, and they are often compelled
by economic pressures not to strike.'30
The majority also rejected the Company's argument that replacement workers' interests are diametrically opposed to those
of strikers, and that incumbent unions always side with strikers. 1' The Company had primarily based this argument on the
view that, in negotiations, unions inevitably demand the discharge of all replacements. 32 The majority refused to embrace
125. Id. at 1549.
126. Id. (quoting Fall River Dyeing & Finishing Corp. v. N.L.R.B., 482 U.S. 27, 42
(1987)).
127. Id. The Court cited N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251, 265-66
(1975), in support of its view that deference should be given to Board rules that seem
inconsistent with prior Board policy. Id. According to Weingarten,: "The use of an administrative agency of the evolution approach is particularly fitting. To hold that the
Board's earlier decisions froze the development of this important aspect of the national
labor law would misconceive the nature of administrative decisionmaking." J. Weingarten, Inc., 420 U.S. at 265-66.
128. Curtin Matheson, 110 S. Ct at 1550.
129. See id. at 1550-53. A presumption is normally valid if the "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.' " Id. (quoting
EDWARD W. CLEARY, MCCORMICK ON EVIDENCE 969 (1984)).
130. Id. at 1550.
131. See id. at 1550-51. The Company argued that strike violence often results
from the hiring of replacements. Id. at 1551. Moreover, when unions are successful in
negotiating a settlement that returns strikers to their jobs, many replacement workers
are displaced. Id.
132. See Curtin Matheson, 110 S.Ct. at 1551. According to the Company, replacements would not support the incumbent union because they are aware of the union's
loyalty to the strikers in resecuring the striker's jobs. Id. Thus, "[s]trike 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. (quoting Leveld Wholesale, Inc.,
218 N.L.R.B. 1344, 1350 (1975)).
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this notion.1 3s Instead, the Court found that, in many strike negotiations, unions did not demand the release of replacement
employees."
In a final argument, the Company had contended that the
no-presumption approach was irreconcilable with an earlier
Board rule, one that removed an employer's duty to bargain
with a striking union over replacement workers' employment
terms because of the inherent conflict between strikers and
replacements.'3 " The Company had felt that this earlier rule
evinced the Board's acknowledgement of replacement employees' intrinsic anti-unionism.1 3 The majority disagreed. It found
that, even if strikers and replacements had conflicting interests
during the strike, their interests might converge after the strike,
once job rights were resolved. 137 Thus, replacement workers
could not automatically be considered anti-union because, if
secure, they might desire post-strike
their jobs were
38
representation.1
Justice Marshall then addressed the issue as to whether the
Board's no-presumption rule comported with the overall policy
of the Act. 39 This policy, according to the Court, was to achieve
industrial peace and to ensure employees' freedom to engage in
labor organization activities.1 40 The Court held that the no-pre133. Curtin Matheson, 110 S. Ct. at 1551.
134. Id. The extent to which unions do demand the discharge of replacements depends on union bargaining power and the circumstances of each dispute. Id. Unions with
weak leverage during strike negotiations may not be able to demand the blanket release
of replacements. Id. In addition, the Supreme Court has held that the circumstances of
some strikes dictate that the employer need only reinstate strikers as vacancies arise,
rather than reinstating all strikers and releasing all replacements. Id. E.g., N.L.R.B. v.
Mackay Radio & Telegraph Co., 304 U.S. 333 (1938)(same).
135. Curtin Matheson, 110 S. CL at 1551. The Board has held that because of this
inherent conflict between strikers and replacements, unions are incapable of "bargain[ing] simultaneously in the best interests of both strikers and their replacements."
Service Electric Co., 281 N.L.R.B. 633, 641 (1986).
136. See Curtin Matheson, 110 S. Ct. at 1551.
137. Id. at 1552.
138. Id.
139. Id. at 1553.
140. Curtin Matheson, 110 S. Ct. at 1553. See also Brooks v. N.L.R.B., 348 U.S. 96,
103 (1954). The notion of "industrial peace" was discussed in Brooks. 348 U.S. at 103.
One of the policy reasons behind the Brooks presumption of union majority support was
to promote stability in collective bargaining. Id. The majority-support presumption enables a union to concentrate on obtaining and administering labor agreements without
being concerned about losing majority support if immediate favorable results are not
NLRB v. CURTIN MATHESON
19921
sumption rule was consistent with the Act's overall policy for
two major reasons. First, without such a rule, an anti-union presumption might flourish, tempting employers to forgo good-faith
bargaining and to simply hire a sufficient number of replacements to raise a "good faith doubt". 1" Second, if an anti-union
presumption existed, labor organizations would be reluctant to
strike as a means to promote labor settlements. 142 Unions would
know that once a strike was called, an employer unwilling to settle could discharge organized workers and hire enough replacements to raise the "good faith doubt." 3 The effect of this would
be to "chill employees' exercise of their right to strike [under the
NLRA]."144
In applying the no-presumption rule, the majority held that
the Company could not base its "good faith doubt" as to union
majority status on a presumption that replacement employees
were anti-union.145 The Court found the no-presumption rule
"rational and consistent with the Act."' 46 In the majority's view,
the no-presumption rule "protect[ed] the bargaining process and
147
preserv[ed] employees' right to engage in concerted activity."
D.
Chief Justice Rehnquist's Concurring Opinion
In his concurring opinion, Chief Justice Rehnquist initially
questioned the level of deference the majority gave to the
Board's no-presumption rule, but concluded that it was barely
within acceptable boundaries."48 The Chief Justice then considered the basis of the Court of Appeals ruling. He concluded that
the lower court erred in not considering, apart from any presumption, whether there was substantial evidence to support the
produced. Id. at 100. See supra note 2 and accompanying text for a discussion, inter alia,
of the NLRA provision that provides for an employee's freedom to engage in labor
activities.
141. See generally Curtin Matheson, 110 S. Ct. at 1553.
142. Id. (holding that anti-union presumption might "chill employees' exercise of
their statutory right to ... strike.").
143. Id. at 1554.
144. Id.
145. Curtin Matheson, 110 S. Ct. at 1554.
146.
147.
148.
Id.
Id.
See Curtin Matheson, 110 S. Ct. at 1554 (Rehnquist, C.J., concurring). Inter-
estingly, Chief Justice Rehnquist gave no indication as to when the Court might exceed
the acceptable level of deference it should afford to board decisions. Id.
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Board's decision. 149 According to Chief Justice Rehnquist, the
substantial evidence question should have been remanded to the
1 50
court of appeals for a final determination.
In writing separately, the Chief Justice did not disagree
with the majority's specific ruling, yet he viewed the no-presumption rule as a sharp limitation upon the means by which an
employer could show "good faith doubt" as to union majority
status.15 Absent any presumption as to replacements' union
views, "good faith doubt" could only be proven by circumstantial evidence. 52 Yet the Chief Justice pointed out that earlier
Board decisions required employers to specifically show that individual employees desire to repudiate the union.1 13 One Board
rule required employers wishing to establish a "good faith
doubt" to show that individual employees had expressed desires
to repudiate the union.8 4 However, another Board rule precluded employers from polling their employees to ascertain their
views until a "good faith doubt" as to majority status could be
established. 55 The net effect of these two rules was to make it
almost impossible for an employer to show that its individual
employees expressly desired to repudiate the union.1 56 According
to the Chief Justice, in light of this anomaly, the no-presumption rule remains the only viable means by which an employer
can establish "good faith doubt."'' 6
149. See id. at 1554-55 (Rehnquist, C.J., concurring) (lower court should have considered record as whole).
150. Id. at 1555 (Rehnquist, C.J., concurring).
151. See id. (Rehnquist, C.J., concurring) (questioning whether no-presumption
rule ever allows for "good faith doubt" as to union majority status). According to the
Chief Justice, the no-presumption rule precludes the employer from resorting to "common sense assumptions about the views of... [replacement employees]." Id.
152. Curtin Matheson, 110 S. Ct. at 1555 (Rehnquist, C.J., concurring).
153. Id. (Rehnquist, C.J., concurring). See infra note 154 and accompanying text
for a discussion of the two other rules the Chief Justice referred to.
154. Id. (Rehnquist, C.J., concurring) (citing Tube Craft, Inc., 289 N.L.R.B. 122 n.2
(1988); Tile Terazzo &.Marble Contractors Ass'n, 287 N.L.R.B. 79 n.2 (1987)).
155. Id. at 1555 (Rehnquist, C.J., concurring) (citing Texas Petrochemicals Corp.,
296 N.L.R.B. 136 (1989) (equating standard for employer polling with standard for withdrawal of recognition).
156. See Curtin Matheson, 110 S. Ct. at 1555 (Rehnquist, C.J., concurring). According to Chief Justice Rehnquist "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 . . . ." Id.
157. See generally Curtin Matheson, 110 S. Ct. at 1555 (Rehnquist, C.J.,
NLRB v. CURTIN MATHESON
19921
E.
The Dissents
1. Justice Scalia's Dissent'5"
Justice Scalia rejected the majority view that the issue in
this case turned on the validity of a Board rule.159 Rather, the
true question for him was whether there was sufficient evidence
to support the Board's finding that the circumstances of the case
did not establish the Company's "good faith doubt."1 0 Justice
Scalia's view of the issue stemmed from his characterization of
the Board's unfair labor proceedings as formal adjudications
governed by the Administrative Procedure Act (APA) and the
NLRA. 6e' Under the APA, agency opinions based on formal adjudications must be set aside if they are not supported by substantial evidence."6 2 In addition, the NLRA itself requires that
Board findings be "supported by substantial evidence on the
record considered as a whole."'6 3 Thus, the question in Justice
Scalia's opinion was whether the Board's finding met the provisions of the above statutes. 61 4 According to Justice Scalia, it did
not.
165
concurring).
158. Id. at 1557-66 (Scalia, J., dissenting). Justice Scalia was joined in his dissent
by Justices O'Connor and Kennedy. Id. at 1557. In the text of the entire Court opinion,
Justice Scalia's dissent follows Justice Blackman's dissent. Id. at 1555. However, Justice
Scalia's dissent is discussed first because Justice Blackman makes reference to the Scalia
dissent in his separate opinion. Id.
159. See id. at 1563 (Scalia, J., dissenting). According to Justice Scalia, the majority's view of the issue "invites us to confuse factfinding with policymaking." Id. The
majority view of the issue was one of Board policy, whether the Board must adopt a
general presumption of replacement anti-unionism in assessing the validity of an employer's "good faith doubt" as to union majority status. Id. at 1545 n.2. The majority
based its view on the question presented which the Court granted certiorari on:
"Whether, in assessing the reasonableness of an employee's asserted doubt that an incumbent union enjoys continual majority support, the Board may refuse to apply any
presumption regarding the extent of union support among replacements for striking employees." Id. According to the majority then, the question as to whether the Board based
its decision on substantial evidence was not the issue. Id.
160. Id. at 1557 (Scalia, J., dissenting) (stating that the question presented is
whether Board's factual findings were supported by substantial evidence).
161. Curtin Matheson, 110 S. Ct at 1558 (Scalia, J., dissenting). The Administrative Procedure Act (APA) is codified at 5 U.S.C. §§ 556-7203 (1988).
162. See 5 U.S.C. § 706(2)(E) (1988).
163. 29 U.S.C. § 160(0 .(1988).
164. See generally Curtin Matheson, 110 S. CL at 1558-59 (Scalia, J., dissenting).
165. Id. at 1559 (Scalia, J., dissenting). In arriving at his conclusion, Justice Scalia
first reiterated the majority's rule that courts must consider the totality of the circum-
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Justice Scalia concluded that the Board's decision was not
based on sufficient evidence by first discounting the majority's
capital arguments in support of its holding.16 First, Justice
Scalia noted that, in contrast to the majority's view, unions and
replacement workers almost always have diametrically opposed
interests. 6 7 Indicative of this conflict is the notion that unions,
in negotiating strike settlements, regularly demand the discharge of replacements." 8 Justice Scalia criticized the majority
for not giving "reasonable probative effect to [this] reality" in
considering whether the Company established a "good faith
doubt."'
Turning to the instant case, Justice Scalia fervently argued
that the circumstances of the strike demonstrated the diametrically opposed interests of the Company's replacements and the
Union. 170 It was readily apparent to him that the Union had
stances in assessing an employer "good faith doubt" as to union majority status. Id. at
1559. The essence of Justice Scalia's dissent is that there was not substantial evidence to
support the majority's finding that the totality of the circumstances did not establish the
Company's "good faith doubt." Id. at 1559 (Scalia, J., dissenting).
166. See generally Curtin Matheson, 110 S. Ct. at 1559-62 (Scalia, J., dissenting)
(analyzing majority's discussion of diametrically opposed interests of unions and replacements and possible pro-union views of replacement workers).
167. Id. at 1559 (Scalia, J., dissenting) (citing Board decision in Leveld Wholesale,
Inc., 218 N.L.R.B. 1344 (1975), which holds that strike replacements reasonably foresee
conflict between themselves and strikers returning to work). According to Justice Scalia,
the reality of these diametrically opposed interests is acknowledged by the Board in its
promulgation of two rules. One rule, announced in Service Electric Co., is that an employer does not commit an 158(a)(5) violation by refusing to negotiate the employment
terms of replacements with the union, 281 N.L.R.B. 633 (1986). The second rule, also
announced in Service Electric Co., is that the union need not consider the best interests
of replacements in negotiating with the employer. Id.
168. Curtin Matheson, 110 S. Ct. at 1560. Justice Scalia believes that the reality of
the diametrically opposed interests alone is enough to establish an employee's "good
faith doubt" as to union majority status. Id.
169. Id. The majority had treated this issue by stating that "[u]nions do not inevitably demand displacement of all strike replacements." Id. at 1551. In Justice Scalia's
view, the majority's treatment of the question was "embarrassingly wide of the mark."
Id. at 1560. Whether unions inevitably demand the discharge of strike replacements is
not the relevant inquiry according to Justice Scalia. Id. (Scalia, J., dissenting). Rather, a
"good faith doubt" can be established by showing that "it is almost certain [the unions]
demand displacement of as many strike replacements as is necessary to reinstate former
employees." Id. (Scalia, J., dissenting).
170. Id. at 1559 (Scalia, J., dissenting) (pointing out that facts of case showed a
"deep and inherent conflict between the interests of [the replacements] and the interests
of the union."). The majority had argued that, even if unions and replacements had opposing interests during a strike, the parties' interests could converge after the strike,
19921
NLRB v. CURTIN MATHESON
sought to have the replacement employees discharged when it
tried to negotiate a strike settlement."'1 Although the Union did
not specifically request the discharge of the replacements in at1 72
tempting to settle, it did make an offer to return to work.
Such an offer, if accepted, would logically have required the discharge of the replacements, a factor both the Union and the
Company were aware of.113 Assuming the Union did not specifically negotiate the release of the replacements because it
planned to address that issue later, Justice Scalia asserted that
there was still enough of a basis to support the Company's "good
faith doubt.117 4 As long as the replacement workers anticipated
that the Union would require their discharge in the future, the
Company could1 reasonably doubt whether the replacements
were pro-union.
71
Justice Scalia also rejected the majority's notion that replacement workers are not always anti-union because such workers may be forced to cross the picket lines for financial reasons. 6 He conceded that economic conditions might indeed
once job rights of the replacements were secured. Id. at 1561 (Scalia, J., dissenting).
Justice Scalia's treatment of this majority view borders on the bitterly sarcastic:
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' ..
. the same way that a man who is offered one million dollars 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 one million dollars if he should
survive.
Id. at 1562 (Scalia, J., dissenting).
171. Id. at 1561 (Scalia, J., dissenting). Justice Scalia opined that the only logical
conclusion to be drawn was that the Union's offering to return to work would mean the
ultimate discharge of the replacements. Id. In an incredulous manner, Justice Scalia posited the following question:
Does the Court really mean to interpret the Union's actions as an agreement
that strike replacements shall stay on the job under terms of the ... collectivebargaining 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 ... ?
Id.
172. See Curtin Matheson, 110 S. Ct. at 1561 (Scalia, J., dissenting).
173. Id.
174. See id. at 1560 (Scalia, J., dissenting).
175. Id.
176. Curtin Matheson, 110 S. Ct. at 1560 (Scalia, J., dissenting) (pointing out that
the.same economic reasons that compel -replacements to cross picket lines may also lead
them to oppose a union that would likely seek their discharge).
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compel replacements to cross the lines.177 However, this was not
an inquiry germane to the critical question, whether the replacements desired union representation by the striking union at the
specific time the employer withdrew recognition. 17 8 In the instant case, Justice Scalia found it illogical to conclude from the
facts that the replacement workers desired representation
by the
179
recognition.
withdrew
Company
the
time
the
at
Union
Before addressing the Board's no-presumption rule directly,
Justice Scalia reiterated that the Company's burden was merely
to show a reasonable "good faith doubt" as to majority status. 8 0
Based on the totality of the circumstances surrounding the case,
Justice Scalia held that it was "absurd to deny that [the Company] sustained [its] burden." 181 In making it clear that the issue was one of substantial evidence, Justice Scalia firmly rejected the Board's framing of the question presented as one of
18 2
policymaking.
Justice Scalia categorically rejected the no-presumption rule
for numerous reasons. 83 First, as discussed earlier, he disagreed
with the majority's characterization of the issue as whether the
Board should adopt a no-presumption rule in the circumstances
of this case. 8 4 According to Justice Scalia, applying the "presumption" term to the issue was misleading; the court of appeals
177. Id.
178. Id. at 1560 (Scalia, J., dissenting) (rejecting the notion that relevant inquiry
was whether replacements desired union representation in the abstract).
179. Id. at 1560 (Scalia, J., dissenting). According to Justice Scalia, the replacement workers:
(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 the union, and indeed (3) in light of their status as breakers of the
union's strike, would have been foolish not to expect their best interests to be
subverted by that union when-ever possible.
Id. (emphasis added).
180. Id. at 1562 (Scalia, J., dissenting). Justice Scalia clearly stated that the Company's burden was "not to demonstrate 100% assurance that a majority of the bargaining unit did not support the union." Id.
181. Curtin Matheson, 110 S. Ct. at 1562 (Scalia, J., dissenting).
182. Id. at 1563 (Scalia, J., dissenting) (asserting that the Board confused factfinding with policymaking). See supra note 160 and accompanying text for a discussion of
the Board's framing of the issue in this case.
183. See Curtin Matheson, 110 S. Ct. at 1562-66 (giving reasons for rejecting the
no-presumption rule).
184. See supra note 159 and accompanying text for a discussion of the Scalia dissent's rejection of the majority's view of the issue in this case.
19921
NLRB v. CURTIN MATHESON
applied the "presumption" term in its holding only because the
probative effect of the evidence was so persuasive that the Board
had to adopt the anti-union presumption. 185 The true underlying
issue was whether the facts supported the Board's decision, regardless of whether this issue of fact was characterized as a
question of presumption.""'
In rejecting the no-presumption rule, Justice Scalia distinguished between presumptions of law and evidentiary inferences. 87 Justice Scalia characterized the pro-union view about
replacement sentiments as a presumption of law, while he considered the anti-union ,view as a product of inference. 18 As a
product of inference, the anti-union notion could have only been
proven by evidence sufficient to have allowed the Board to reasonably draw such an inference.8 9 In Justice Scalia's view, the
185. See Curtin Matheson, 110 S. Ct. at 1562-63 (Scalia, J., dissenting)(giving reasons why court of appeals was compelled to use "presumption" term). See also Curtin
Matheson Scientific Inc. v. N.L.R.B, 859 F.2d 362, 367 (5th Cir. 1988). In its holding, the
court of appeals adopted the "Gorman Presumption." Id. The Gorman Presumption is as
follows: "[hf a new hire agrees to serve as a replacement for a striker (in union parlance,
a strike breaker, or worse), it is generally assumed that he does not support the union
and that he ought not be counted toward a Union majority." Id. at 367 n.1. See also
ROBERT A. GORMAN, LABOR LAW 112 (1976) (discussing his presumption as to replacement workers' union sentiments).
186. CurtinMatheson, 110 S. Ct. at 1562 (Scalia, J., dissenting). For Justice Scalia,
viewing the issue in the case as turning on the adoption of a presumption was:
the equivalent of characterizing the appeal of a criminal conviction, in which
the defendant asserts . . . 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.
Id.
187. Id. at 1563 (ruling that in decisionmaking, courts should not consider presumptions of law in same manner they consider inferences to be drawn from evidence).
188. Id. at 1564. Presumptions of law are distinguishable from inferences (known
as presumptions of fact). Id. Presumptions of law are used by the Board "as [a] means of
implementing authorized law or policy in the course of [Board] adjudication." Id. An
example of a presumption of law is the Brooks unrebuttable presumption of union support during the first year following Board certification. Id. The Board can apply such
presumptions, regardless of the varying facts of each dispute, as a way to enforce labor
policy. Id. However, inferences (presumptions of fact) are different. Justice Scalia quoted
Black's Law Dictionary and defined inferences of fact as: "[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." Id. at 1563 (quoting
BLACK'S LAW DICTIONARY 700 (5th ed. 1979)).
189. See generally Curtin Matheson, 110 S. Ct. at 1564 (Scalia, J., dissenting) (defining presumption of fact as inference). Justice Scalia quoted Station KKHI in support
of his view that replacements' anti-union sentiments should be based on inference,
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Board erred because it ignored the only reasonable inference the
facts of the case supported, that the Company had a "good faith
doubt" because the replacements were anti-union.190
Justice Scalia also rebuffed the majority's use of policy arguments in support of its application of the no-presumption
rule.1 91 Justice Scalia did not question the substance of the majority's policy arguments; rather, he argued that application of
the no-presumption rule itself was an improper use of policy in a
procedural sense. 192 It was improper policy usage because the
Board applied the rule after it had already engaged in a factual
inquiry as to the replacements' union views; according to Justice
Scalia, a decision based on policy application should not be influenced by facts at all. 19 3 Finally, the Scalia dissent considered
the Board's application of policy in its decision improper in light
of the Board's historic role as adjudicator."" Since the Board
settled labor disputes primarily through adjudication, its decision should have been based on substantial evidence, rather
than on the refusal to adopt any presumption as to replacements' union sentiments.195
2. Justice Blackmun's Dissent
The pith of Justice Blackmun's dissent was that the Board,
in promulgating the no-presumption rule, exercised faulty decirather than presumption. Id. The Board held in Station KKHI that "the hiring of permanent replacements who cross a picket line, in itself, does not support an inference that
the replacements repudiate the union." Station KKHI, 284 N.L.R.B. 1339, 1344 (1987).
190. Curtin Matheson, 110 S. Ct. at 1557 (Scalia, J., dissentipg). Of course, Justice
Scalia disagreed with the Board in that he felt a reasonable inference was that replacement unions were anti-union. Id. at 1564 (Scalia, J., dissenting).
191. Id. at 1564-66 (Scalia, J., dissenting) (rejecting policy reasons because of considerations of administrative law). See supra notes 139 to 144 and accompanying text for
a discussion of the majority's policy reasons for adopting the no-presumption rule in this
case.
192. See id. at 1565. See infra note 193 and accompanying text for an explanation
of what Justice Scalia considers appropriate, versus inappropriate, uses of policy.
193. Curtin Matheson, 110 S. Ct. at 1564-66 (Scalia, J., dissenting). Justice Scalia
used a model to describe the Board's improper use of the no-presumption rule as policy:
"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." Id. The following is a
proper use of policy according to Justice Scalia. "Even though the facts require conclusion X, we reject it for policy reasons." Id.
194. Id. at 1566 (Scalia, J., dissenting).
195. Id.
19921
NLRB v. CURTIN MATHESON
sionmaking as an administrative agency.1 9 The no-presumption
rule was in direct conflict with other Board rules that recognized
a conflict between unions and replacements. 197 For example, in
Service Electric Co.,19s the Board held that striking unions had
no duty to consider replacements' interests in negotiating labor
disputes because of the inherent conflict between the two par-
ties. 199 Thus, the no-presumption rule represented a departure
from the Board's practice of recognizing the union-replacement
conflict.20 0 The problem was that the Board, as an administra-
tive agency, effectuated this change in policy without adequate
explanation.2 0 1
Justice Blackmun further criticized the Board's decision in
this case because he found a "lack of empirical support for its
position. ' 20 2 The Board showed no evidence supporting its con196. Id. at 1556-57 (Blackmun, J., dissenting) (pointing out that no-presunIption
rule directly conflicts with other Board rules, and that Board gave no explanation for
departing from its principles announced and reaffirmed in prior decisions). See infra
note 199 and accompanying text for a discussion of how the no-presumption rule conflicts with prior rules.
197. Curtin Matheson, 110 S. Ct. at 1555 (holding that the Board's analysis in
instant case cannot be reconciled with the rule that the Board announced in previous
cases). See also id. at 1559 (Scalia, J., dissenting)(Justice Scalia makes same argument
that no-presumption rule is invalid due to conflict with previous Board rules addressing
union-replacement worker relationships).
198. 281 N.L.R.B. 633 (1986).
199. Id. at 639. The Board held that "it is not logical to expect the [striking union]
to negotiate in the best interests of strike replacements during the pendency of the
strike." Id. at 641.
200. Id. (no-presumption rule "in considerable tension" with other Board rules
that recognize inherent conflict between unions and strike replacements).
201. Curtin Matheson, 110 S. Ct. at 1556. In support of his view that administrative agencies must offer cogent explanations for reversals in their policy, Justice Blackmun cited Greater Boston Television Corp. v. F.C.C., 444 F.2d 841, 852 (1970). According
to the court in Greater Boston: "[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 [policy] without
discussion it may cross the line from the tolerably terse to the intolerably moot." Id.
(footnote omitted). Justice Blackmun emphasized the importance of "exercising meaningful control" over the decisionmaking process of administrative agencies, especially
when they make changes in policy. Id. As unelected officials, agency decisionmakers
should be subjected to close scrutiny by the courts, apparently to protect the public from
capricious rulemaking. Id. But see N.L.R.B. v. Weingarten, Inc., 420 U.S. 251, 265-66
(1975). In this case, the Court held that a Board rule is entitled to considerable deference
even if the rule represents a departure from prior Board policy. Id. The Curtin Matheson majority relied on the Weingarten case in support of its opinion. See Curtin Matheson, 110 S. Ct. at 1547.
202. Curtin Matheson, 110 S. Ct. at 1556 (Blackmun, J., dissenting).
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tention that employers, in applying the anti-union presumption,
would violate their duty to bargain in good faith by "hiring their
way out" of union majority status."' In addition, Justice Blackmun echoed Chief Justice Rehnquist's concern that the no-presumption rule would eviscerate a employer's ability to show
"good faith doubt. ' 20 4
IV.
ANALYSIS
In comparing the majority opinion with the Scalia dissent,
the contrasting views of the Justices in this case become readily
apparent. The majority based its holding on notions of adminis-
trative law when it affirmed the Board's decision, thus according
deference to the Board's rulemaking functions as a federal
agency. 205 The issue, according to the majority, was whether the
Board's no-presumption rule was rational and consistent with
the Act.20 The Scalia dissent, also referring to administrative
law issues, opposed the majority view and framed its holding
around questions of agency fact-finding. 207 According to Justice
Scalia, the issue was whether there was sufficient evidence to
support the Board's finding that the employer failed to show a
"good faith doubt" as to the Union's majority status.2 0 8
The majority opinion's most salutary characteristic was its
policy argument that applying an anti-union presumption would
203. Id. In essence, Justice Blackmun was attacking the Board's policy reasons for
adopting the no-presumption rule. See supra notes 141 to 147 and accompanying text for
a discussion of the Board's and the majority's policy reasons for adopting the no-presumption rule.
204. Curtin Matheson, 110 S. Ct. at 1556 (Blackmun, J., dissenting). See supra
notes 153 to 157 and accompanying text for a discussion of Justice Rehnquist's concurrence, where he claims that, in light of two other Board rules, application of the nopresumption rule would eliminate an employer's ability to establish a "good faith doubt"
as to union majority status.
205. Id. (asserting that Court has always given considerable deference to Board's
rules).
206. See supra notes 120 to 144 and accompanying text for a discussion of whether
the no-presumption rule was rational and consistent with the Act.
207. Curtin Matheson, 110 S. Ct at 1557 (Scalia, J., dissenting) (question
presented as to employer's "good faith doubt" is whether factual findings are supported
by substantial evidence).
208. See supra notes 156 to 161 and accompanying text for a discussion about Justice Scalia's view on the issue in this case. See also supra notes 163 to 176 and accompanying text for an explanation of why Justice Scalia held that sufficient evidence did not
exist to support the Board's findings in this case.
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NLRB v. CURTIN MATHESON
disrupt industrial peace and collective bargaining.2 0 9 If "good
faith doubt" as to union majority status could be raised simply
by hiring strike replacements presumed to be anti-union, an employer wishing to escape the duty to bargain could simply hire
enough replacements to constitute a majority. 10 It seems logical
to conclude, as the majority did, that giving an employer such an
ability could "chill employees' exercise of their rights to . . .
strike."2 ' By supporting the no-presumption rule then, the majority sought to protect employees' right to strike, a strategy
em21 2
ployed by unions to promote collective bargaining.
In its approach, however, the majority focused on addressing the propriety of the Board's no-presumption rule, rather
than addressing whether the Company's "good faith doubt" was
founded on sufficient evidence. 1 In adopting this approach, the
majority relied on the Board's framing of the issue as whether,
in assessing the Company's "good faith doubt," a presumption
that the strike replacements were anti-union had to be applied. 214 Here, as Justice Scalia stated in his dissent, the Board
215
confused issues of policymaking with issues of fact-finding.
There was no need to couch the issue of whether a "good faith
doubt" was raised in terms of a presumption of one sort or an209. See supra notes 139 to 145 and accompanying text for a discussion of the
majority's policy argument in support of the no-presumption rule.
210. See Curtin Matheson, 110 S. Ct. at 1553-54 (asserting that anti-union presumption rule might allow employers to avoid good-faith bargaining by removing union
through hiring of enough strike replacements).
211. Id. at 1554. Employees might be afraid to strike because:
[i]f 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.
Id.
212. Id. See also N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, 233-34 (1963)
(NLRA is predicated upon employees' right to strike).
213. See Curtin Matheson, 110 S. Ct. at 1562 (Scalia, J., dissenting). According to
Justice Scalia, the majority never discussed whether "there was substantial evidence to
support the Board's conclusion that [the Company] had not established a reasonable
good faith doubt of the [U]nion's majority status." Id.
214. Id. at 1545 (articulating Board's view of the issue in this case). See also supra
notes 124 to 147 and accompanying text for a discussion of the majority's analysis of the
case according to the Board's view of the issue. But see supra notes 159 to 160 and
accompanying text (discussing Justice Scalia's rejection of Board's view of issue in this
case).
215. Curtin Matheson, 110 S. Ct. at 1563 (Scalia, J., dissenting).
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other." ' In attempting to rebut the Union's majority status, the
Company had to show that it had a sufficiently objective basis
for doubting such status. 1 7 In other words, as Justice Scalia
wrote, the Company must have had "reasonable grounds for believing that the Union had lost its majority status."2 1 It was unnecessary for the employer to prove that all the replacements
were anti-union, but rather, that it was very likely that the balance of them were.2" 9 Thus, the question was really whether the
facts of the case supported the Company's contention that "good
faith doubt" existed at the time the Company refused to bargain.2 When the facts show, as they did in this case, that a
majority of strike replacements were hired, a sufficiently objective basis arguably existed to doubt the union's continued majority support, especially in light of the obvious inherent conflict
between replacements and the striking union.221 Since the Company did not have to show that all the replacements were antiunion, a blanket anti-union presumption was an unnecessary analytical tool for addressing the validity of the employer's "good
'222
faith doubt.
216. See supra notes 183 to 190 and accompanying text for a discussion of why
Justice Scalia concluded that application of a presumption was inappropriate in this
case. In Justice Scalia's view, no presumption was necessary because the true issue was
whether the facts supported the Board's ruling that the Company had not established
"good faith doubt." Curtin Matheson, 110 S. Ct. at 1562 (Scalia, J., dissenting).
217. Curtin Matheson, 110 S. Ct. at 1545 (citing Station KKHI, 284 N.L.R.B. 1339
(1987) (applying Brooks test)).
218. Curtin Matheson, 110 S. Ct. at 1559 (Scalia, J., dissenting) (quoting Celanese
Corp. of America, 95 N.L.R.B. 664, 671-73 (1951).
219. Curtin Matheson, 110 S. Ct. at 1562 (Scalia, J., dissenting). According to Justice Scalia: "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." Id.
220. Id. at 1557 (Scalia, J., dissenting). Justice Scalia rejected assessing the Company's "good faith doubt" on presumptions alone. Id. The issue of "good faith doubt"
was a question of fact, and, as Justice Scalia stated: "[b]y its very nature, the issue of
whether an employer has questioned a union's majority in good faith cannot be resolved
by resort to any simple formula. It can only be answered in the light of the totality of all
the circumstances involved in a particular case."- Id. at 1559.
221. Id. at 1559 (Scalia, J., dissenting). At the time the Company withdrew recognition of the Union, it had hired 25 replacement workers out of a total of 49 employees.
Id. See supra notes 170 to 175 and accompanying text for a discussion of the opposing
interests of unions and strike replacements.
222. See Curtin Matheson, 110 S. Ct. at 1562 (Scalia, J., dissenting) (asserting that
employer, in demonstrating "good faith doubt," need only have shown that majority of
employees rejected Union).
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The majority's refusal to adopt an anti-union presumption
per se was not what the dissenters took issue with.223 Rather, the
dissenting Justices believed that the application of such a presumption was not necessary to support the Company's 'good
faith doubt in this particular case;" absent such a presumption,
the facts surrounding the replacements' hiring were sufficient to
raise the "good faith doubt. ' 22 4 Twenty-five of the total forty2 25
nine employees of the Company were strike replacements.
Five of the actual strikers crossed back over the picket line and
returned to work.2 In addition, there was no evidence suggesting any contact between the replacements and the Union.227
This evidence, considered
cumulatively, was sufficient to support
"good faith doubt. ' 228
Justice Scalia's treatment of this case comports with the
APA's 22 9 provisions governing agency rulemaking through adjudication. 23 1 It is generally agreed upon that the Board, in decid223. Id. at 1555 (Blackmun, J., dissenting). Justice Blackmun conceded that the
no-presumption rule might be acceptable if the nature of industrial reality was such that
striking unions and replacements did not have such conflicting interests. Id.
According to Justice Blackmun:
[ilt
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..
. 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 [Board] were to determine that the participants in the collectivebargaining process no longer behave in this fashion ...I cannot say at this
juncture that the Board's [no-presumption rule] would be irrational.
Id. (footnote omitted).
224. Id. at 1557 (Scalia, J., dissenting) (concluding that record clearly showed employer established "good faith doubt").
225. Id. at 1559.
226. Curtin Matheson, 110 S.Ct. at 1559. Justice Scalia conceded that it was not
definite that the five cross-over employees were anti-union. Id. However, there was evidence that these cross-overs were unhappy with the Union. See Curtin Matheson Scientific, Inc. v. N.L.R.B., 869 F.2d 362, 366 (1988) (giving examples of cross-over employees'
negative statements about their union). Two of the cross-over employees stated that they
refused to pay their union dues because they felt the Union was not supporting the
workers. Id.
227. Curtin Matheson, 859 F.2d at 364.
228. See Curtin Matheson, 110 S. Ct. at 1557 (Scalia, J., dissenting) (concluding
that record as a whole supported inference that Union lacked majority support).
229. The APA is an acronym for the Administrative Procedure Act, codified at 5
U.S.C. §§ 551-7521 (1988).
230. See 5 U.S.C. § 554 (1988) (provision that allows for rulemaking through formal
adjudications). Under the APA, an adjudication is an "agency process for the formulation of an order." 5 U.S.C. § 551(7) (1988).
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ing labor cases, is really engaging in rulemaking through adjudication.23 ' Thus, the Board must abide by the APA provision that
rulemaking by adjudication must be based on substantial evidence.23 2 In this case, there was a dearth of evidence in support
of the view that the strike replacements were pro-union.2 33 In
fact, there was sufficient evidence in support of the contrary notion, that the replacements were most likely anti-union.2 34 Thus,
the Board's conclusion that "[the Company] had not established
a... 'good faith doubt' of the union's majority status" was probably not supported by substantial evidence in satisfaction of the
APA.23 5
Another troubling feature of the Board's no-presumption
rule is its obvious dissonance with prior Board treatment of the
union-replacement worker dynamic.2 3s The Board has historically recognized the truism that striking unions and strike
replacements are natural adversaries.231 Board rules germane to
this subject reflect this understanding.2 3 8 The no-presumption
rule, in contrast, fails to embody this same understanding, and is
predicated on the view that replacement workers are not necessarily anti-union. 239 Agency rules that are in direct conflict with
231. See N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759 (1969) (Black, J., concurring) (concluding that Board rule requiring employers to provide unions with employee
lists prior to elections was "incident to the adjudication of a specific case before it").
232. Curtin Matheson, 110 S. Ct. at 1558 (Scalia, J., dissenting).
233. Id. at 1560. According to Justice Scalia, "[t]here was... not a shred of affirmative evidence that any strike replacement supported the union." Id.
234. See supra notes 224 to 228 and accompanying text for a discussion of the facts
supporting the view that the strike replacements were anti-union.
235. See generally Curtin Matheson, 110 S. Ct. at 1558-62 (Scalia, J., dissenting)
(discussing proposition that Board's ruling did not satisfy substantial evidence requirement of APA). See supra note 162 and accompanying text for a discussion of the substantial evidence requirement under the APA.
236. See supra notes 197 to 200 and accompanying text for a discussion of how the
no-presumption rule conflicts with other Board rulings pertinent to the union-replacement worker relationship.
237. See Leveld Wholesale, Inc., 218 N.L.R.B. 1344, 1350 (1975) (holding that unions do not favor persons who cross picket lines and perform work of strikers); Beacon
Upholstery, Co., 226 N.L.R.B. 1360, 1368 (1976) (holding that interests of strike replacements diametrically oppose those of striking union).
238. See Service Electric Co., 281 N.L.R.B. 633, 641 (1986) (holding union does not
breach duty of fair representation by refusing to negotiate terms of strike replacements).
239. See Station KKHI, 284 N.L.R.B. 1339 (1987) (promulgating no-presumption
rule). The Board announced the no-presumption rule because it found that neither a
pro-union presumption, nor an anti-union presumption, was based on an empirical foundation. Id. at 1344. See supra note 116 and accompanying text for further discussion on
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NLRB v. CURTIN MATHESON
903
other pronouncements may indicate a lack of "an adequate deliberative process" in agency adjudication.24 0 In applying the nopresumption rule in this case, the Board failed to give any explanation for its abrupt departure from acknowledging the conflict
between unions and replacements."" Thus, the Board may not
have given adequate weight to the facts supporting the view that
the replacements were anti-union." 2
V.
IMPACT
If an employer cannot base its "good faith doubt" on the
commonsense notion that most of its strike replacements are
anti-union, there is "serious question whether 'good faith doubt'
could ever be demonstrated." 4 3 In a prior decision, the Board
held that employee anti-unionism could only be shown with specific evidence.2 44 Absent the ability to base "good faith doubt"
on the hiring of strike replacements, Chief Justice Rehnquist
aptly pointed out a vexing problem associated with the "specific
evidence" requirement mentioned above. 245 The common
method used to gather specific evidence of an employee's antiunion views is to poll the employee. 246 However, as the Chief
Justice emphasized, the Board has held that an employer cannot
poll its employees concerning union views without first estabwhy the Board announced the no-presumption rule.
240. Curtin Matheson, 110 S. Ct. at 1556 (Blackmun, J., dissenting).
241. Id. Justice Blackmun found that the Board "departed, without explanation,
from principles announced and reaffirmed in its prior decisions." Id. See supra notes 197
to 200, 237 and accompanying text for examples of prior Board decisions that embodied
principles counter to that behind the no-presumption rule.
242. See Curtin Matheson, 110 S.Ct. at 1556 (Blackmun, J., dissenting). Justice
Blackmun implied that when an agency fails to give a tenable explanation for its abrupt
change in policy, this might be indicative of a lack of thorough and rational deliberation.
Id.
243. Id. at 1555 (Rehnquist, C.J., concurring). See infra notes 244 to 250 and accompanying text for a discussion about why the no-presumption rule seriously limits an
employer's ability to show "good faith doubt."
244. See supra note 154 and accompanying text for a discussion about Board decisions requiring employers to show specific evidence demonstrating individual employees'
repudiation of the union. See Johns-Mansville Sales Corp., 289 N.L.R.B. 358 (1988) (exemplifying type of decision mentioned above).
245. See infra notes 247 to 250 and accomlianying text for a discussion of an employer's problem associated with the "specific evidence" requirement.
246. See Curtin Matheson, 110 S.Ct. at 1555 (Rehnquist, C.J., concurring) (implying that employers poll their employees to ascertain their union sentiments).
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lishing a "good faith doubt" as to majority status. 2s4 Hence, in
order to show "good faith doubt," an employer must poll employees to ascertain their union views. 48 Yet, employee polling is
not authorized unless the employer first establishes "good faith
doubt! 2 4' The employer's dilemma speaks for itself.
The Court's ruling in Curtin Matheson also blurred the distinction between the two prongs of the Brooks test.250 The
Brooks test, as discussed earlier, allows an employer to rebut an
incumbent union's presumed majority support by either (1)
showing, in fact, that the union does not enjoy majority Support,
or (2) by demonstrating a "good faith doubt" as to such support. 51 The Court interpreted the empl6yer's burden under each
prong of the test as follows: "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 the employees in fact oppose the union. ' 252 Thus, to show that the union, in fact, did not
have majority support, an employer would be required to give an
accounting of the number of its anti-union employees. 5 3 On the
other hand, the "good faith doubt" prong requires less exacting
proof; the employer's doubt as to majority status can be based
on circumstantial evidence. 5 4 Hence, the "good faith doubt"
prong of Brooks would not require an actual accounting of the
247. Texas Petrochemicals Corp., 296 N.L.R.B. 136 (1989) (holding standard for
employee polling same as standard for employer withdrawal of union recognition).
248. See Curtin Matheson, 110 S. Ct. at 1555 (Rehnquist, C.J., concurring). The
Chief Justice pointed out that an employer would have to poll his employees in order to
satisfy the "specific evidence" test required to show employee anti-unionism. See supra
note 154 and accompanying text for a discussion of the specific evidence requirement to
show employee anti-unionism.
249. See supra note 247 and accompanying text for a discussion of the "good faith
doubt" recuirement employers must meet in order to poll workers about their union
views.
250. See supra notes 100 to 101 and accompanying text for a discussion of the
Brooks test. The Brooks test is applied to ascertain whether an employer successfully
rebuts an incumbent union's majority support. Brooks, 348 U.S. 96, 103-04 (1954).
251. Brooks, 348 U.S. at 103-04. The Brooks test, as discussed earlier, allows an
employer to rebut an incumbent union's presumed majority support by either (1) showing, in fact, that the union does not enjoy majority support, or (2) by demonstrating a
"good faith doubt" as to such support. Id.
252.
253.
254.
Curtin Matheson, 110 S. Ct. at 1550 n.8.
Id.
Id.
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NLRB v. CURTIN MATHESON
number of anti-union employees.2 5 5 Inexplicably, in this case the
majority did just the opposite in ruling on the Company's "good
faith doubt." The Court held that "good faith doubt" was not
established because, inter alia, the Company failed to prove that
a majority of the replacements and cross-over employees were,
in fact, anti-union. 25 6 By not allowing the Company to base its
"good faith doubt" on the reasonable inference that the replacements were anti-union, the Court contravened its view that such
doubt could be based on circumstantial evidence.
57
Based on
the majority's ruling, employers wishing to show "good faith
doubt" would arguably have to show more than circumstantial
evidence; employers would have the additional burden of proving actual repudiation of the union by a majority of the workers. 258 The result of this is an abrogation the "good faith doubt"
29
prong of the Brooks test.
VI.
CONCLUSION
Curtin Matheson is a manifest example of how the Board
often promulgates rules without considering their impact on existing labor policy. 260 The majority, in paying considerable defer255. See, e.g., Stormer, Inc., 268 N.L.R.B. 860, 866-67 (1984) (noting that employer
need not show actual numerical loss of majority support to demonstrate "good faith
doubt").
256. See Curtin Matheson, 110 S. Ct. at 1547-48. In applying the Board's reasoning, the Court held that the Company did not show a "good faith doubt" because there
was evidence suggesting that only six out of forty-nine employees made anti-union
statements.
257. See supra note 254 and accompanying text for a discussion of how the employer can show "good faith doubt" with circumstantial evidence.
258. See supra note 256 and accompanying text for a discussion of the Court's
ruling that the Company did not establish "good faith doubt" because it failed show a
majority of employee anti-unionism.
259. See supra notes 243 to 249 and accompanying text for a discussion of how the
combination of the no-presumption rule with prior Board rules effectively removes an
employer's ability to show "good faith doubt." See Curtin Matheson, 110 S. Ct. at 1555
(Rehnquist, C.J., concurring) (concluding same as above).
260. Curtin Matheson, 110 S. Ct. at 1556 (Blackmun, J., dissenting). The words of
Justice Blackmun underscore the notion that Board rules should be promulgated in a
manner that promotes consistency in labor policy:
[T]he propriety 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 . .. consonant with other agency pronouncements in
analogous areas.
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ence to the Board's administrative functions, countenanced a
rule that will severely limit, if not expunge, an employer's ability
to show "good faith doubt."261 Employers with valid reasons to
doubt that its workers support the union may still be forced to
bargain because they cannot produce specific evidence of individual employee anti-unionism. 62
In light of Curtin Matheson, an employer may not be limited in pursuing its workers' best interests and may be compelled to deal with a union arguably lacking a worker majority. 63 Therefore, serious question exists as to whether the nopresumption rule would actually promote industrial peace and
collective bargaining. 264 Continuity in bargaining and representation would be disrupted if a labor agreement were entered into
with a bargaining representative whose majority support was
25
tenuous at best.
Further, Curtin Matheson has effectively undermined employers' future ability to achieve advantageous bargaining positions in labor negotiations. Unions armed with the knowledge
that employers have scant recourse to prove an anti-union majority may be inclined to wield more pressure to obtain desired
Id.
261. Id. at 1548 (discussing Court's practice of paying deference to Board rules
because of Board's Congressional mandate to set labor policy). See supra notes 125 to
127 and accompanying text for a discussion of the Court's long-standing deference to
Board rulemaking.
262. See supra notes 153 to 156 for a discussion of Chief Justice Rehnquist's criticism of the Board's view that employers must show specific evidence of employee antiunionism to establish "good faith doubt."
263. A union may arguably not be backed by an employee majority because, although an employer would be hardpressed to show specific anti-union sentiments in light
of the no-presumption rule, the balance of employees may actually not support the
union. See supra notes 153 to 156 and accompanying text for a discussion of how the nopresumption rule eliminates an employer's ability to show "good faith doubt," thus making it impossible to rebut union majority status.
264. See The National Labor Relations Act, 29 U.S.C. § 157 (1988). The seminal
purpose of the act is to give employees the right to "bargain collectively through representatives of their own choosing." Id. By promoting such freedom of collective bargaining, the Act discourages "industrial strife or unrest." 29 U.S.C. § 151. Employees' free
choice of collective bargaining, and arguably industrial peace, may be compromised because the no-presumption rule "sharply limits the means by which an employer might
[show the lack of union majority status through] good-faith doubt." Curtin Matheson,
110 S. Ct. at 1555 (Rehnquist, C.J., concurring).
265. See supra note 262 and accompanying text for a discussion of how the nopresumption rule might force on employer to bargain with a union that lacks majority
support..
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NLRB v. CURTIN MATHESON
results. Although this may not be an inherently bad consequence, it tends to run counter to national labor policy, a tenet
of which is to preserve a level playing field for labor
negotiations. 66
The debate over how much power administrative agencies
should be afforded is a dated one.28 1 However, courts still have
the responsibility 6f insuring that agency decisions are reasonable, consistent, and supported by sound factual analysis. 28 8 The
Court's affirmation of the no-presumption rule in this case does
not comport with these considerations. 8 9 This is unfortunate,
especially considering the fundamental role national labor relations plays
in preserving stability and peace in contemporary
27 0
society.
.Perhaps, as Justice Scalia suggested in his dissent, the
Court's decision in Curtin Matheson permitted the Board to engage in unscrupulous administrative decisionmaking that is best
summed up in these words:
266. See 29 U.S.C. § 151 (1988). A primary goal of national labor policy, as embodied in the Act, was to restore "equality of bargaining power between employers and employee[ ] [representatives]." Id.
267. See Woodrow Wilson, The Study of Administration,2 POL. ScL Q: 197 (1887)
(discussing whether administrative agency influence should be excluded from political
arena). Commentators have touted Woodrow Wilson's article as having "launched the
modern study of public administration." RONALD A. CASS & COLIN S. DIVER, ADMINISTRATIVE LAW, 267 (1987). Wilson's view was that administrative agencies were not to make
policy, but were to implement it. CASS & DIVER at 267. However, a counter school of
thought began to emerge in the 1940s. Id. Proponents of this counter-revolution viewed
the role of administrative agencies as that of makers, as well as implementors, of public
policy. Id. See, e.g., D. WALDO, THE ADMINISTRATIVE STATE (1948) (exposition of counterrevolutionary view of administrative agencies).
268. Curtin Matheson, 110 S. Ct. at 1556 (Blackmun, J.,.dissenting).
269. See supra notes 229 to 242 and accompanying text for a discussion of how the
Board's no-presumption rule does not comport with notions of consistency and sound
factual analysis.
270. See Cox supra note 22, at 1. According to the authors:
Among the more intricate and vital relationships in our society-along with the
relationship of individual to family and of citizen to state- is that of a worker
to his or her job. Employment is more than a source of income. One's sense of
worth and accomplishment is shaped largely by one's workplace responsibilities ... and rewards. It is therefore natural for workers to wish to participate
in the shaping of the rules that govern the workplace, or at least to be treated
'fairly' under these rules.
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Let me find the facts for the people of my country, and I care little
who lays down the general principles.271
Mark R. Giuliani
271. Curtin Matheson, 110 S. Ct. at 1566 (Scalia, J., dissenting)(quotingChief Justice Hughes, Address before Federal Bar Association, February 12, 1931, quoted by
Frank, J., in United States v. Forness, 125 F.2d 928, 942 (2d Cir. 1942)).