Petitioners Brief — NLRB v. Curtin Matheson Scientific, Inc.

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No. 88-1685

In the Supreme Court of the United States

jos@ett F. SPANIO

L, JR.

OCTOBER TERM, 1989

NATIONAL LABOR RELATIONS BOARD, PETITIONER

Vv.

CURTIN MATHESON SCIENTIFIC, INC.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUII

BRIEF FOR THE PETITIONER

JOSEPH E. DESIO

Acting General Counsel

D. RANDALL FRYE

Associaie General Counsel

ROBERT E. ALLEN

Associa’. General Counsel

NORTON J. COME

Deputy Associate General

Counsel

LINDA SHER

Assistant General Counsel

PETER WINKLER

Supervisory Attorney

KENNETH W. STARR

Solicitor General

DAVID L. SHAPIRO

Deputy Solicitor General

LAWRENCE S. ROBBINS

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

National Labor Relations Board

Washington, D.C. 20570

QUESTION PRESENTED

Whether, in assessing the reasonableness of an

employer’s asserted doubt that an incumbent union enjoys

continued majority support, the Board may refuse to

apply any presumption regarding the extent of union sup-

port among replacements for striking employees.

(I)

PARTIES TO THE PROCEEDING

In addition to the parties identified in the caption, the

following union also appeared in the proceeding before

the Board and the court of appeals: General Drivers,

Warehousemen and Helpers, Local 968, affiliated with In-

ternational Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America, AFL-CIO.

TABLE OF CONTENTS

Ns ccc esd ces eesenccsees

Statutory provisions involved ......................

Neen ne nn eee ewees

The development of the Board’s no-presump-

B. the present controversy ...................

Introduction and summary of argument .............

Argument:

The Board’s no-presumption rule for assessing

union support among striker replacements is a ra-

tional construction of the National Labor Relations

Act and should therefore be upheld .............

The Board’s interpretations of the Act,

whether based on empirical findings or policy

judgments, are entitled to substantial

deference if they are rational and consistent

Ly he we see ececcs

Under these principles, the no-presump-

tion rule should be upheld .................

1. The no-presumption rule reflects a ra-

tional empirical judgment about the union

sentiments of striker replacements ......

The no-presumption rule reasonably pro-

motes the stability of collective-bargaining

relationships, without impairing the right

of employees to select their bargaining

EEE

3. The no-presumption rule assures that the

Statutory right to strike will not be unduly

chilled by a threat that the union will lose

cc et et ce eee

ace

IV V

Cases — Continued: Page

Great Southern Trucking Co. v. NLRB, 139 F.2d

TABLE OF AUTHORITIES

Cases: Page

Allied Indus. Workers, Local 289 v. NLRB, 476 984 (4th Cir.), cert. denied, 322 U.S. 729 (1944) . 4

F.2d 868 (D.C. Cir. 1973) 20.0.0. 0. 0.000 cece. 26 Ce SA: Ys SRR ee © ae Shee ore Se

American Broadcasting Cos. Vv. Writers Guild of 1989) “SERRAURMECUELORSE RO ORR CREEP ee eee 19, 28

America, West, Inc., 437 U.S. 411 (1978) ...... 14 —— og ed peg ty po par :

American Ship Building Co. v. NLRB, 380 U.S. ee ee Pig ae

sea ay one « A ee . Kure Kesch Ine 286 NARB. No. I31 (Nov. 30

Arthur A. Borchert, 90 N.L.R.B. 944 (1950) ain, 1987), remanded, 865 F.2d 757 (6th Cir. 1989) 2% 21

forced, 188 F.2d 474 (4th Cir. 1951) ....... ee. 4 Laney Seng S Sees Car Can, OFS 0.2.0.

Automated Business Systems v. NLRB, 497 F.2d 464 (1971) coo eee eee ese omer eee eee eeeeeseseses 21

et par ees or ete 24° Lelaape Comp, 071 KL.R.B. 5268 (EES), o-

Belknap, Inc. v. Hale, 463 U.S. 491 (1983) ...... 25-26, 27 forced, 414 F.2d 99 (7th Cir. 1969), cert. denied,

Beth Israel Hosp. Vv. NLRB, 437 U.S. 483 (1978) 7 12, 14, 397 U.S. 920 (1970) S60 05 COS 86 OO Ow 6 0.4 68.6 66 88 26

1S. 16 Laystrom Mfg. Co., 151 N.L.R.B. 1482 (1965) ... 4

Bill Johnson’s Restaurants. Inc. v. NLRB. 461 US. Lyng v. International Union, United Automobile

RES Sie ORIENT te Sac Is Workers, 108 S. Ct. 1184 (1988) .............. 17

Brooks v. NLRB, 348 U.S. 96 (1954) ............ 3 Magic Chef, Inc., 286 N.L.R.B. No. 33 (Mar. 31,

Buckley Broadcasting Corp., Local 51, 284 1986) Sauce feet e nese eect ee ee nee ese ness 21

N.L.R.B. No. 113 (July 27, 1987), application National Plastic Products Co., 78 N.L.R.B. 699

for enforcement pending No. 88-7106 (9th Cir. (1948) eee 3 TRETLECE REEL ee 4

filed Mar. 7, 1988) ............. 5, 6, 8, 11, 16, 17, 25 NLRB v. Baptist Hosp., inc. 42U.S. T3197). NS

C & C Plywood Corp., 163 N.L.R.B. 1022(1967). 4 NLRB vy. Burns International Security Services,

C. H. Guenther & Son, Inc., 174 N.L.R.B. 1202 Inc., 406 U.S. 272 (1972)... Fete t seen seen ss 3

(1969), enforced, 427 F.2d 983 (Sth Cir.), cert. NLRB v. Crimptex, Inc., §17 F.2d 501 (Ist Cir.

denied, 400 U.S. 942 (1970) .................. 3 a Hennes Steet sees sees sees sees 23

Charles D. Bonanno Linen Service, Inc. v. NLRB, NLRB v. Erie Resistor Corp., 313 U.S. 221

454 U.S. 404 (1982) ... 0... cc ccc cece cece uees 14 I ea a ae ee ae alee Oe Baca ee 14, 24, 25, 26

Chevron U.S.A. Inc. v. Natural Resources Defense NLRB v. Fleetwood Trailer Co., 389 U.S. 375

Council, Inc., 467 U.S. 837 (1984) ............ 15 (1967) .. ee Senet e eres 26

Dold Foods, Inc., 289 N.L.R.B. No.156 (July 28 NLRB vy. Financial Institution Employees, Local

RE + sda vk ae ehegs svaeenes ens peehelens aes 18 1182, 475 U.S. 192 (1986) ...... 66.0... eee 19

Fall River Dyeing & Finishing Corp. v. NLRB, NLRB v. Franks Bros., 137 F.2d 989 (Ist Cir.

MUS POM «2... 3, 11, 12, 13, 14, 1943), aff'd, 321 U.S. 702 (1944) .............. 4

19, 20, 21, 22, 23, 24 NLRBv. Frick Co., 423 F.2d 1327 (3d Cir. 1970) . . 24

Ford Motor Co. v. NLRB, 441 U.S. 488 (1979) Lo 14 NLRB vy. Gissel Packing Co., 395 U.S, 575 (1969). ; 23

Gilpin v. AFSCME, 875 F.2d 1310 (7th Cir. 1989). 18 ay Granite State Joint Board, 409 U.S. 213 .

Cases — Continued:

NLRB vy. Great Dane Trailers, Inc., 388 U.S. 26

ERR ee Did ba tibu Sane awe-adit

NLRB vy. Hearst Publications, Inc., 322 U.S. 111

hs tha Oe eae ae i ek ce ie

NLRB vy. Insurance Agents’ Int’l Union, 361 U.S.

SPC cheu diay sk yad ys uwsuden eek Ks eine

NLRB vy. Local Union No. 103, Iron Workers, 434

ED os cede ease heceeeuheucaeudes

NLRB v. Mackay Radio & Telegraph Co., 304 U.S.

I eo ei ecu dbue yee dee bo SER ees t'e

NLRB v. Murray Products, Inc., 584 F.2d 934

I Ni a ee ee aks «ws

NLRB vy. Seven-Up Bottling Co., 344 U.S. 344

ee Re a RSS aed ge

NLRB vy. Truck Drivers, 353 U.S. 87 (1957) ......

NLRB vy. J. Weingarten, Inc., 420 U.S. 251

NGS ol ne 5 Vwidhs cane tas sate Neo eo ae eke

Pattern Makers’ League of North America vy.

a A eee

Pennco, Inc., 250 N.L.R.B. 716 (1980), enforced,

684 F.2d 340 (6th Cir.), cert. denied, 459 U.S.

RE FC ne ayer aemry FER rome me 3, 5, 18

Peoples Gas System, Inc., 214 N.L.R.B. 944

(1974), rev’d and remanded sub nom. Teamsters

Local Union 769 v. NLRB, 532 F.2d 1385 (D.C.

I Re ee

Randall, Div. of Textron, Inc. v. NLRB, 687

F.2d 1240 (8th Cir. 1982), cert. denied, 461 U.S.

dt eos hive whey cn aecas @ ge

Republic Aviation Corp. v. NLRB, 324 U.S. 793

ER RRO RS Ry eee ee coe

Retired Persons Pharmacy v. NLRB, 519 F.2d

wc race bea euee REG ea ees A

Stoner Rubber Co., 123 N.L.R.B. 1440 (1959) ....

Titan Metal Mfg. Co., 135 N.L.R.B. 196 (1962) ...

Page

14,

Vil

Cases — Continued: Page

Trans World Airlines, Inc. v. Independent Federa-

tion of Flight Attendants, 109 S. Ct. 1225

EE ied edt bacon gue ix Ges wn ha sdebanes dae 17-18, 27

United States Gypsum Co., 157 N.L.R.B. 652

DN ae CEE Gad ne educa nein he aaa 3

Windham Community Memorial Hosp., 230

N.L.R.B. 1070 (1977), enforced, 577 F.2d 805

TN 0 Bi Be aloes: 3, 4-5

Whisper Soft Mills, Inc. v. NLRB, 754 F.2d 1381

I cucu drccebhwideds 3

Statutes and regulation:

National Labor Relations Act, 29 U.S.C. 151 ef

seq.:

PCRS ae) re ee 26

Oe a i ok oc 40a E 2

rh Se oe ee 2,3,9

fe BIR ST ot. ree 2 i..&9

es a a dey ace use wens 2

eS aban en 24

eit oS Vinay a lO os hg ed 3

Miscellaneous:

Estreicher, Strikers and Replacements, 38 Lab.

is Bi TTD cic cctesesctanesccee Bie ae

Flynn, The Economic Strike Bar: Looking Beyond

The “Union Sentiments” Of Permanent Replace-

ments, 61 Temple L. Rev. 691 (1988) .......... 21, 26

R. Gorman, Labor Law (1976) ................. 10, 23

Weiler, Striking a New Balance: Freedom of Con-

tract and the Prospects for Union Representa-

tion, 98 Harv. L. Rev. 351 (1984) ............. 21

Legislative History of the Labor-Management

Reporting and Disclosure Act of 1959 (GPO 1959) 23

In the Supreme Court of the United States

OCTOBER TERM, 1989

No. 88-1685

NATIONAL LABOR RELATIONS BOARD, PETITIONER

Vv.

CURTIN MATHESON SCIENTIFIC, INC.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE PETITIONER

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-24a)

is reported at 859 F.2d 362. The decision arid order of the

National Labor Relations Board (Pet. App. 25a-54a) are

reported at 287 N.L.R.B. No. 35.

JURISDICTION

The judgment of the court of appeals (Pet.-App. 55a)

was entered on November 4, 1988, and a petition for

rehearing was denied on December 22, 1988 (Pet. App.

56a-57a). On March 8, 1989, Justice White extended the

time within which to file a petition for a writ of certiorari

to and including April 21, 1989. The petition was filed on

April 17, 1989, and was granted on June 26, 1989. The

jurisdiction of this Court rests on 28 U.S.C. 1254(1).

(1)

STATUTORY PROVISIONS INVOLVED

Section 8(a)(1) and (5) of the National Labor Relations

Act (NLRA), 29 U.S.C. 158(a)(1) and (5), provides:

(a) It shall be an unfair labor practice for an

employer —

(1) to interfere with, restrain, or coerce

employees in the exercise of the rights guaranteed

in section 157 of this title;

(5) to refuse to bargain collectively with the

representatives of his employees, subject to the

provisions of s° .on 159(a) of this title.

Section 7 of the NLRA, 29 U.S.C. 157, provides:

Employees shall have the right to self-

Organization, 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 or other mutual aid or pro-

tection, and shall also have the right to refrain

from any or all of such activities except to the ex-

tent that such right may be affected by an agree-

ment requiring membership in a labor organization

as a condition of employment as authorized in sec-

tion 158(a)(3) of this title.

STATEMENT

A. The Development Of The Board’s No-Presumption Rule

1. Pursuant to Section 9 of the National Labor Rela-

tions Act, 29 U.S.C. 159, the National Labor Relations

Board may certify a particular labor organization as the

exclusive bargaining representaiive for a company’s

employees. Once the Board has done so, the union “usual-

ly is entitled to a conclusive presumption of majority

status for one year following the certification.” Fall River

Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 37

(1987). Accord NLRB vy. Burns International Security

Services, Inc., 406 U.S. 272, 279 n.3 (1972); Brooks v.

NLRB, 348 U.S. 96, 98-99 (1954). See also 29 U.S.C.

159(c)(3). “{A]fter this period, the union is entitled to a

rebuttable presumption of majority support.” Fall River

Dyeing, 482 U.S. at 38; Burns International, 406 U.S. at

279 n.3. An employer may rebut that presumption and

withdraw recognition from the union by showing either (1)

that the union did not in fact enjoy majority status, or (2)

that there was a sufficient, objective basis for a reasonable

doubt of the union’s majority status.' The question

presented in this case is whether, in evaluating an

employer’s claim that it has an objective, reasonable basis

for doubting a union’s majority status, the Board must

presume that striker replacements. oppose the union.

The Board has long held that new employees in general

(as opposed to striker replacements in particular) may be

presumed to support an incumbent union in the same pro-

' See, e.g., Whisper Soft Mills, Inc. v. NLRB, 754 F.2d 1381, 1387

(9th Cir. 1984); NLRB v. Pennco, Inc., 684 F.2d 340, 342 (6th Cir.),

cert. denied, 459 U.S. 994 (1982); NLRB v. Windham Community

Memorial Hosp., 577 F.2d 805, 811 (2d Cir. 1978); Retired Persons

Pharmacy v. NLRB, 519 F.2d 486, 489 (2d Cir. 1975). Cf. Fall River

Dyeing, 482 U.S. at 41 n.8. If the union contests the withdrawal of

recognition and the employer is unable to sustain his burden, the

Board will find a violation of Section 8(a)(5) and (1) of the Act.

Employee members of the bargaining unit may petition for a decer-

tification election upon a showing that at least 30% of the unit

employees do not want to be represented by the bargaining represen-

tative. 29 C.F.R. 101.18(a). An employer who has a good faith doubt

of continuing majority status may also petition for a decertification

election. United States Gypsum Co., 157 N.L.R.B. 652, 655-656

(1966).

portion as the employees they replace. National Plastic

Products Co., 78 N.L.R.B. 699, 706 (1948); C & C

Plywood Corp., 163 N.L.R.B. 1022, 1028 (1967). See also

Great Southern Trucking Co. v. NLRB, 139 F.2d 984,

985-986 (4th Cir.). cert. denied, 322 U.S. 729 (1944);

NLRB vy. Franks Bros., 137 F.2d 989, 995 (ist Cir. 1©43),

aff'd, 321 U.S. 702 (1944).? At least initially, however, the

Board did not apply that presumption in assessing the

union sentiments of striker replacements. In its earliest

decisions, the Board held that, in establishing a good faith

doubt, it was not “unreasonable [for an employer] to

assume that none of [its] permanent replacements were

union adherents” (Stoner Rubber Co., 123 N.L.R.B. 1440,

1444 (1959)). Accord Jackson Mfg. Co., 129 N.L.R.B.

460, 478 (1960) (“most improbable” that “the replacements

hired during the strike had chosen the Union to represent

{them]”); Titan Metal Mfg. Co., 135 N.L.R.B. 196, 215

(1962) (same). But cf. Arthur A. Borchert, 90 N.L.R.B.

944, 946 (1950), enforced in relevant part, 188 F.2d 474

(4th Cir. 1951) (“no certainty” that replacements not

themselves union adherents).

In a 1974 decision, however, the Board recognized that

“replacements, who had chosen not to engage in the strike

activity, might nevertheless have favored union represen-

tation” (Peoples Gas System, Inc., 214 N.L.R.B. 944, 947

(1974), reversed and remanded on other grounds sub nom.

Teamsters Local Union 769 v. NLRB, 532 F.2d 1385, 1391

(D.C. Cir. 1976)). And by the late 1970s, the Board,

breaking entirely with its earlier decisions, extended the

presumption regarding other employees to striker re-

placements. See Windham Community Memorial Hosp.,

2 For that reason, the Board has historically held, an employer may

not base an assertion of good faith douvi on “[e]mployee turnover

standing alone.” Laystrom Mfg. Co., 151 N.LLR.B. 1482, 1484

(1965).

230 N.L.R.B. 1070 (1977), enforced, 577 F.2d 805 (2d Cir.

1978); Pennco, Inc., 250 N.L.R.B. 716 (1980), enforced,

684 F.2d 340 (6th Cir.), cert. denied, 459 U.S. 994 (1982);

James W. Whitfield, 220 N.L.R.B. 507, 509 (1975). As the

Board stated in Windham Community Memorial Hosp.,

“(t]he general rule * * * is that new employees, including

striker replacements, are presumed to support the union in

the same ratio as those whom they have replaced” (230

N.L.R.B. at 1070).

2. In its 1987 decision in Buckley Broadcasting Corp.,

Local 51, (Station KKH1I), 284 N.L.R.B. No. 113 (July 27,

1987), application for enforcement pending, No. 88-7106

(9th Cir. filed Mar. 7, 1988) (Pet. App. 58a-9la), the

Board revisited the issue. Based on its empirical judgment

and considerations of policy, the Board held that no

presumption is warranted regarding the extent of union

support among striker replacements. Noting that the

courts of appeals had “uniformly rejected” its prior posi-

tion—that permanent replacements are presumed to sup-

port the union in the same ratio as the striking employees

whom they replaced—the Board “carefully reviewed [its]

past decisions and assessed [its] experience to determine if

they suggest generalizations about the views of permanent

strike replacements that are so universal that they support

one overall presumption that can be applied when evalu-

ating a union’s majority status” (Pet. App. 72a, 74a). The

Board concluded that no such “universal” generalizations

could be drawn. It therefore found “no basis for presum-

ing that strike replacements who have accepted employ-

ment and are therefore willing to cross a picket line in

order to go to work favor union representation” (/d. at

75a).

Correspondingly, the Board found “the contrary

presumption” —that “permanent replacements who cross a

picket line * * * repudiate the union” —“equally unsup-

portable” (Pet. App. 75a). It noted that a striker replace-

ment “may be forced to work for financial reasons, or may

disapprove of the strike in question but still desire union

representation and would support other union initiatives”

(ibid.). In addition to the fact that the contrary presump-

tion is “not factually compelling” (ibid.), the Board

Observed that “adoption of this presumption would

disrupt the balance of competing economic weapons long

established in strike situations and substantially impair the

employees’ right to strike by adding to the risk of replace-

ment the risk of loss of the bargaining representative as

soon as replacements equal in number to the strikers are

willing to cross the picket line” (id. at 75a-76a).

In short, the Board in Station KKHI “discern{ed] no

overriding generalization about the views held by strike

replacements and therefore * * * decline[d] to maintain or

create any presumptions regarding their union sentiments”

(Pet. App. 76a). Instead, the Board held that it would

henceforth “review the facts of each case” and “require

‘some further evidence of union non-support’ before con-

cluding that an employer’s claim of good-faith doubt of

the union’s majority is sufficient to rebut the overall

presumption of continuing majority status” (/bid.).

B. The Present Controversy

1. Respondent in a Texas corporation that trade, in

laboratory instruments and supplies and maintains a

warehouse in Houston. On April 15, 1970, the Board cer-

tified Local 968, General Drivers, Warehousemen and

Helpers (the Union) as the collective bargaining agent for

respondent’s production and maintenance employees. On

May 21, 1979,} the latest collective-bargaining agreement

between the parties expired, and on May 25 the company

made its final offer. The Union rejected that offer on May

> All dates given are in 1979 unless otherwise noted.

29. Respondent locked out all 27 bargaining-unit

employees from June 4 to June 12, when respondent

renewed its offer of May 25. The Union again rejected it.

Pet. App. 2a-3a.

On June 13, the Union began an economic strike. Five

of the 27 bargaining-unit employees immediately crossed

the picket line and returned to work. On June 17, respond-

ent put into effect the wage schedule proposed in its May

25 offer. On June 25, with the strike still in progress,

respondent hired 29 new employees to replace the 22

strikers.4

On July 16, the Union ended its strike, offering uncon-

ditionally to accept the May 25 offer. On July 19, the

Union asked respondent to execute a contract embodying

the May 25 terms. The following day, July 20, respondent

notified the Union that the May 25 offer was unavailable.

It also stated that because it entertained doubts about the

Union’s continued majority status, it was withdrawing

recognition and refusing to bargain further. As of that

date, the bargaining unit consisted of 19 employees who

had participated in the strike, 25 replacements, and five

“crossover” employees who had crossed the picket line and

were then working for the company. Pet. App. 3a.

Also on July 20, the Union asked the respondent to fur-

nish information regarding the total number of

bargaining-unit employees on the payroll, and the job

classification and seniority of each of those employees.

Respondent refused. Pet. App. 3a-4a.

* Respondent’s director of employee relations “testified that 29

replacements were hired although only 22 jobs had been opened up by

the strike because the Respondent anticipated that some of the hirees

would not cross the picket line, that there would be some turnover

within a group of new employees that large, and that additional

workmen would be needed during the initial training period.” Pet.

App. 30a n.9.

2. On July 30, the Union filed an unfair labor practice

charge with the Board, alleging violations of Section

8(a)(5) and (1) of the NLRA, 29 U.S.C. 158(a)(5) and (1).

J.A. 112. On September 7, following an investigation, the

General Counsel issued a complaint. J.A. 114; Pet. App.

4a.

The Board, reversing the Administrative Law Judge,

held that respondent lacked a reasonable doubt concern-

ing the Union’s majority status. Pet. App. 25a-54a. The

Board found that “the fact that 5 of the 27 unit employees

crossed the picket line does not in itself support an in-

ference that the 5 repudiated the Union as the collective-

bargaining representative” (id. at 32a). The Board ex-

plained that “[t}he failure of employees to join an

economic strike may indicate their economic concerns

rather than a lack of support for the union” (id. at

32a-33a). The Board also found that certain statements of

six employees did not clearly evince “repudiations of the

Union as the collective-bargaining representative” (id. at

34a), and that even if they did, “it would merely signify

that 6 employees of a total bargaining unit of approx-

imately S50 did not desire to keep the Union as the

collective-bargaining representative” (id. at 34a-35a).°

Finally, relying on its decision in Station KKHI, the

Board explained (Pet. App. 33a) that it would not “use any

presumptions with respect to the[] union sentiments” of

the 25 striker replacements. The Board stated that it would

“instead * * * take a case-by-case approach,” requiring

“additional evidence of a lack of union support on the

replacements’ part in evaluating the significance of this

factor in the employer’s showing of good-faith doubt”

> The Board found that the remarks of a seventh employee “con-

veyed only a disapproval of the Union’s conduct of the strike,” rather

than a general “repudiation of the Union as the employees’ represen-

tative” (Pet. App. 33a).

(ibid.). Applying that standard, the Board concluded that

“{t)Jaking into account all the factors relied on by the

Respondent to support its asserted reasonable doubt of the

Union’s majority status, * * * the evidence is insufficient

to rebut the presumption of the Union’s continuing ma-

jority status” (id. at 35a).° It therefore held that respond-

ent had violated Section 8(a)(5) and (1) by withdrawing

recognition from the Union, by refusing to furnish the in-

formation that the Union had requested, and by refusing

to execute the collective-bargaining agreement proposed

by the Union on July 19 and embodying the terms offered

by respondent on May 25 (Pet. App. 35a-38a). The Board

ordered the company to cease and desist; on request, to

bargain with the Union and to execute an agreement based

on the May 25 terms; to furnish the requested informa-

tion; and to post an appropriate notice (/d. at 39a-42a).

3. The court of appeals denied enforcement by a di-

vided vote, concluding that respondent had established a

reasonable doubt of the Union’s majority status (Pet.

App. la-24a). The court first noted (/d. at 6a-8a) that

several employees who crossed the picket line, and others

who remained on the picket line, had expressed anti-union

sentiments to respondent’s director of employee relations.

The court next rejected the Board’s decision to apply no

presumption regarding the preferences of the replace-

ments. The court instead approved (/d. at 9a & n.1) the so-

called “Gorman presumption”—drawn from Professor

Gorman’s labor law text—according to which “ ‘it is

® In particular, the Board found that the replacements’ crossing of a

peaceful picket line and the Union’s failure to contact those

replacements during the strike constituted insufficient evidence from

which to infer that they opposed the Union. The Board further found

that the arguably anti-union comment of One striker replacement was

no basis for inferring the union sentiments of the replacements as a

whole. Pet. App. 33a-34a.

generally assumed that [a replacement] does not support

the Union and that he ought not to be counted toward a

Union majority’” (id. at 9a n.1, quoting R. Gorman,

Labor Law 112 (1976)).’ The court found that the Gorman

presumption was warranted in this case because “a

substantial percentage of the bargaining unit employees

[was] replaced on the same day, and the striker replace-

ments cross[ed] a picket line” (Pet. App. 10a). Applying

that presumption, the court held that “the Company is

justified in counting the striker replacements as employees

whom they doubt support the Union” (ibid.).

Judge Williams dissented (Pet. App. lla-24a). “The

outcome of this case,” he explained (id. at 12a), “turns on

the significance attached to the hiring of permanent

replacement workers during an economic strike.” In his

view, the Board had offered “compelling” reasons for

adopting a rule according to which it would “refuse[] to

presume that the replacement workers are for or against

the union” (id. at 13a, 15a). Judge Williams noted that the

Board’s approach permits it “to take into account the par-

ticular circumstances surrounding each strike and the hir-

ing of replacements, while retaining the long-standing re-

quirement that the employer must come forth with some

objective evidence to substantiate his doubt of continuing

majority status” (id. at 1Sa). Observing that “there is a

conflict among the circuits” regarding which, if any,

presumption should be applied (/d. at 17a-18a), Judge

Williams concluded that “[t}he refusal to attach any

presumptive weight to the hiring of replacement workers

is, at the very least, a reasonable policy choice which is not

’ The term “Gorman presumption” is a misleading one, since it does

not appear that Professor Gorman was advocating such a presump-

tion, only that he was reporting the Board’s approach as he then

understood it. See R. Gorman, Labor Law 112-113 (1976).

inconsistent with the National Labor Relations Act” (/d. at

16a). Accordingly, he stated, “even if this Court prefers a

different approach the only proper course is to enforce the

Board’s view because of the deference we are required to

afford the Board’s policy decisions” (ibid.). Applying the

Board’s no-presumption rule for replacements, Judge

Williams would have enforced the Board’s order requiring

respondent to recognize and bargain with the Union (/d. at

20a-24a).

INTRODUCTION AND SUMMARY OF ARGUMENT

The question presented in this case is whether, in seek-

ing to justify its withdrawal of recognition on the basis of

a reasonable doubt of a union’s majority status, an

employer may invoke a presumption that permanent

replacements for striking workers do not support the

union. Relying on its decision in Station KKHI, the Board

held in the present case that no such presumption may be

invoked. The Board’s “no-presumption” rule is plainly “ra-

tional and consistent” with the National Labor Relations

Act. The rule was therefore “entitled to deference from the

courts.” Fall River Dyeing & Finishing Corp., 482 U.S. at

42.

Nevertheless, the court of appeals rejected the Board’s

rule in favor of the so-called Gorman presumption,

according to which striker replacements are presumed to

oppose the incumbent union. The court’s decision

misconstrues the no-presumption rule; it substitutes a con-

trary rule that lacks sufficient empirical or policy support;

and it impermissibly second-guesses the Board’s ac-

cumulated expertise in administering the statute. The

judgment of the court of appeals should therefore be

reversed.

A. This Court has repeatedly held that “[i]f the Board

adopts a rule that is rational and consistent with the Act

*** then the rule is entitled to deference from the

courts.” Fall River Dyeing, 482 U.S. at 42. Where the

Board’s decision is based on a reasonable empirical deter-

mination, “fashion[ed] * * * in light of its experience”

(Beth Israel Hosp. v. NLRB, 437 U.S. 483, 500 (1978)),

this Court has consistently accorded substantial deference

to the Board’s judgment. Deference is likewise appropriate

where the Board’s decision is based on a policy judgment

designed to implement the broad purposes of the statute.

“It is the Board,” not the courts, “on which Congress con-

ferred the authority to develop and apply the fundamental

national labor policy.” /bid. If the Board is to accomplish

_that task, it “necessarily must have authority to formulate

rules to fill the interstices of the broad statutory provi-

sions.” Jd. at 501. .

B. The no-presumption rule is plainly “rational and

consistent with the Act” (Fall River Dyeing, 482 U.S. at

42). Three independent grounds support the Board’s rule.

First, the rule reflects a reasonable empirical judgment

about the union sentiments of striker replacements.

Workers may cross a picket line for any number of

reasons, several of which do not suggest opposition to the

incumbent union. After “carefully review[ing] [its] past

decisions and assess[ing] [its] experience,” the Board con-

cluded that no “universal” generalizations could be drawn

(Pet. App. 74a). That judgment is surely a rational one.

Second, the no-presumption rule promotes the stability

of collective-bargaining relationships. By requiring the

employer to estabish the replacements’ views on a case-by-

case basis, the no-presumption rule limits the employer’s

ability to oust the incumbent union simply by replacing a

sufficent number of the striking employees. By contrast,

the Gorman presumption creates incentives for employers

to stonewall negotiations, hire unnecessary replacement

workers, and withdraw recognition ffom the bargaining

representative. As such, the Gorman presumption

significantly disserves the policy of “ ‘promot{ing] stability

in collective-bargaining relationships, without impairing

the free choice of employees’ ” (Fa// River Dyeing, 482

U.S. at 38 (brackets in original)).

Finally, the Gorman presumption, imposed by the court

below, threatens to chill the exercise of the statutory right

to strike. Although striking workers know that they may

be lawfully and permanently replaced by their employer,

they also know that, through negotiation, they may

achieve a settlement agreement that entitles them to

reclaim their jobs. Imposition of the Gorman presumption

would make it easier for the employer to withdraw

recognition from the bargaining representative, and

thereby to thwart the strikers’ efforts to achieve a back-to-

work agreement, as well as a variety of other post-strike

benefits. If an unsuccessful strike carries with it the likely

loss of representation—in addition to the loss of a

job—the strike may become a total defeat for the

employees, not just one battle in an ongoing contest. That

added risk is apt to chill the exercise of the protected right

to strike.

Withdrawal of recognition is not simply the use of an

“economic weapon” by an employer; it is an attempt to

revoke a status conferred on the union by law in order to

effectuate the policies of the Act. Thus, the question of the

appropriate grounds for withdrawal is one on which the

Board’s judgment is especially entitled to deference. And

the Board’s judgment here — that the Gorman presumption

is without sufficient empirical support and would “disrupt

the balance of competing economic weapons long

established in strike situations” (Pet. App. 74a-76a)— was

entirely reasonable.

ARGUMENT

THE BOARD’S NO-PRESUMPTION RULE FOR ASSESS-

ING UNION SUPPORT AMONG STRIKER

REPLACEMENTS IS A RATIONAL CONSTRUCTION OF

THE NATIONAL LABOR RELATIONS ACT AND

SHOULD THEREFORE BE UPHELD

A. The Board's Interpretations of the Act, Whether Based

on Empirical Findings Or Policy Judgments, Are En-

titled To Substantial Deference If They Are Rational

And Consistent With The Siatute

“The function of striking [the] balance to effectuate na-

tional labor policy is often a difficult and delicate respon-

sibility, which the Congress committed primarily to the

National Labor Relations Board, subject to limited

judicial review.” NLRB v. Truck Drivers, 353 U.S. 87, 96

(1957). See also Beth Israel Hosp. v. NLRB, 437 U.S. 483,

501 (1978); American Broadcasting Cos. v. Writers Guild

of America, West, Inc., 437 U.S. 411, 431 (1978); NLRB

v. Local Union No. 103, Iron Workers, 434 U.S. 335, 350

(1978). Accordingly, the Board’s judgment, when “apply-

ing the general provisions of the Act to the complexities of

industrial life,” is entitled to substantial deference. NLRB

v. Erie Resistor Corp., 373 U.S. 221, 236 (1963). As this

Court has repeatedly held, “{i]f the Board adopts a rule

that is rational and consistent with the Act * * * then the

rule is entitled to deference from the courts.” Fall River

Dyeing, 482 U.S. at 42. Accord Charles D. Bonanno

Linen Service, Inc. v. NLRB, 454 U.S. 404, 413 (1982);

Ford Motor Co. v. NLRB, 441 U.S. 488, 495, 497 (1979);

Beth Israel Hosp., 437 U.S. at 500-501.

* Deference is owed decisions of the Board even where the Board’s

position represents a change from prior policy. NLRB v. Local Union

No. 103, Iron Workers, 434 U.S. 335, 351 (1978); NLRB v. J. Wein-

garten, Inc., 420 U.S. 251, 265-266 (1975) (“To hold that the Board’s

Deference is fully due the Board’s empirical judgments

that “fashion generalized rules in light of its experience”

(Beth Israel Hosp., 437 U.S. at 500). The Board’s “[e]very-

day experience in the administration of the statute gives it

familiarity with the circumstances and backgrounds of

employment relationships in various industries, with the

abilities and needs of the workers for self-organization

and collective action, and with the adaptability of collec-

tive bargaining for the peaceful settlement of their

disputes with their employers” (NLRB v. Hearst Publica-

tions, Inc., 322 U.S. 111, 130 (1944)).-And the Board’s

“ ‘(cJumulative experience’ begets understanding and in-

sight by which judgments not objectively demonstrable are

validated or qualified or invalidated” (NLRB v. Seven-Up

Bottling Co., 344 U.S. 344, 349 (1953)). This Court has,

accordingly, given substantial deference to the Board’s

empirical judgments, as the agency seeks to “apply[] the

Act’s general prohibitory language in the light of the in-

finite combinations of events which might be charged as

violative of its terms” (Republic Aviation Corp. v. NLRB,

324 U.S. 793, 798 (1945)). See, e.g., id. at 803-804; Beth

Israel Hosp., 437 U.S. at 500-501. Cf. NLRB v. Baptist

Hosp., Inc., 442 U.S. 773, 789 (1979) (“the development

of * * * presumptions is normally the function of the

Board”).

earlier decisions troze the development of this important aspect of the

national labor law would misconceive the nature of administrative

decisionmaking”). See also Bill Johnson’s Restaurants, Inc. v. NLRB,

461 U.S. 731, 742 (1983). Cf. Chevron U.S.A. Inc. vy. Natural

Resources Defense Council, Inc., 467 U.S. 837, 863-864 (1984) (“An

initial agency interpretation is not instantly carved in stone. On the

contrary, the agency, to engage in informed rulemaking, must con-

sider Varying interpretations and the wisdom of its policy on a contin-

uing basis”).

Deference is also required when the Board’s decisions

are based on policy judgments designed to effectuate the

broad purposes of the statute. “It is the Board on which

Congress conferred the authority to develop and apply the

fundamental national labor policy,” and if the Board is to

accomplish that task it “necessarily must have authority to

formulate rules to fill the interstices of the broad statutory

provisions.” Beth Israel Hosp., 437 U.S. at 500-501. Par-

ticularly where the Board’s policy judgment reflects the

agency’s “ ‘difficult and delicate responsibility’ of reconcil-

ing conflicting interests of labor and management,” that

judgment “is ‘subject to limited judicial review’ ” (NLRB

v. J. Weingarten, Inc., 420 U.S. 251, 267 (1975)). “The

rule which the Board adopts is judicially reviewable for

consistency with the Act, and for rationality, but if it

satisfies those criteria, the Board’s application of the rule,

if supported by substantial evidence on the record as a

whole, must be enforced.” Beth Israel Hosp., 437 U.S. at

SOL.

B. Under These Principles, The No-Presumption Rule Should Be

Upheld

i. The no-presumption rule reflects a rational empirical

judgment about the union sentiments of Striker

replacements

As the Board explained in Station KKHI, “presump-

tions should arise when it is believed that proof of one fact

renders the inference of the existence of another fact so

probable that it is sensible and timesaving to assume the

truth of the inferred fact until it is affirmatively

disproved” (Pet. App. 74a). Guided by that principle, the

Board in Station KKHI revisited the question whether per-

sons who cross the picket line during an economic strike

must be presumed to oppose the incumbent union. The

Board “carefully reviewed [its] past decisions and assessed

[its] experience to determine if they suggest generalizations

about the views of permanent strike replacements that are

sO universal that they support one overall presumption

that can be applied when evaluating a union’s majority

status” (/bid.). The Board concluded that no such “univer-

sal” generalizations could be drawn. It reasoned that a

striker replacement “may be forced to work for financial

reasons, Or may disapprove of the strike in question but

still desire union representation and would support other

union initiatives” (id. at 75a). The Board therefore found

the so-called Gorman presumption — imposed by the court

below —“not factually compelling” (ibid.).

The Board’s empirical judgment is entirely rational.

Persons may cross a picket line for any number of reasons,

some of which do not suggest opposition to the incumbent

union. For example, strikes can exact a severe economic

toll frou: those who participate in them. “[A] striking in-

dividual faces an immediate and often total drop in in-

come during a strike” (Lyng v. International Union,

United Automobile Workers, 108 S. Ct. 1184, 1192

(1988)). Both strikers and potential replacements may be

moved by economic need to work for a struck employer.

“[T]he specter of hardship to * * * family” (NLRB v.

Granite State Joint Board, 409 U.S. 213, 217 (1972)) may

therefore cause persons to cross a picket line even though

they otherwise support the union and the balance of the

union’s agenda. See, e.g., International Union, i108 S. Ct.

at 1189 nn. 3, 4. Moreover, strikeg are, by their nature,

controversial, and “in virtually every strike situation there

will be some employees who disagree with their union’s

decision” and “either refuse[] to strike or abandon[] the

strike.” Trans World Airlines, Inc. v. Independent Federa-

tion of Flight Attendants, 109 S. Ct. 1225, 1232 (1989).

Thus even when a worker’s refusal to participate in a strike

represents a profound disagreement with the union’s

strategy and tactics at that time, that disagreement may

not endure, and may not signify a fundamental opposition

to union representation. It is not unreasonable to suppose

that replacement workers, like the workers they replace,

are often motivated by such considerations, and would

also value union representation at the conclusion of the

strike. Cf. Gilpin v. AFSCME, 875 F.2d 1310, 1313 (7th

Cir. 1989) (class action certification not appropriate

because there are “[t]wo distinct types of employees” who

decline to join a union: those who are ideologically oppos-

ed, and those free riders who are “happy to be represented

by a union” but who do not want to pay for its services).?

It is true that replacements generally know that the union’s

primary allegiance is to the striking employees and indeed may be at-

tempting to secure the replacements’ discharge. However, as the

Board noted in Dold Foods, Inc., 289 N.L.R.B. No. 156 (July 28,

1988), in declining to presume that replacements oppose the union

(slip op. 3 (footnote omitted)):

Unions often demand, at least in the first instance, that the

replacements be discharged and the strikers rehired. Frequently,

as in the instant case, the union’s position may be modified in the

course of the negotiations on the issues underlying the strike. In-

deed, in the instant case, as the strike wore on, the Union took a

progressively weaker position until, at the bargaining session of

October 23, it requested only that the Respondent discharge those

replacements (about 32 out of 201 total replacements) who had

not yet completed the probationary period.

See also NLRB v. Pennco, 684 F.2d at 342 (since less than hal: of the

replacements would lose their jobs if the strike were settled, there was

“no indication” that any particular replacement feared loss of employ-

ment).

Because the reasons for crossing a picket line vary from

industry to industry, from strike to strike, and from

worker to worker, the Board plainly acted rationally in

refusing, as an empirical matter, to allow an employer to

invoke a presumption that striker replacements oppose the

incumbent union. The present case illustrates the wisdom

of the Board’s determination. As Judge Williams noted in

dissent, of the 15 replacement workers interviewed by

respondent’s personnel director, only one “volunteered

any animus toward or opposition to the Union” (Pet. App.

23a-24a & n.8). “The failure of most replacement

employees to state an opinion either way lends credence to

the Board’s position that these workers should not be

presumed to be for or against the Union” (id. at 23a-24a

n.8). See also Hajoca Corp. v. NLRB, 872 F.2d 1169,

1174-1175 (3d Cir. 1989).

2. The no-presumption rule reasonably promotes the stability of

collective-bargaining relationships, without impairing the right

of employees to select their bargaining representatives

“The overriding policy of the NLRA is ‘industrial

peace.’ ” Fall River Dyeing, 482 U.S. at 38. Accord NLRB

v. Financial Institution Employees, Local 1182, 475 U.S.

192, 202-203 (1986). Indeed, as the Court explained in Fall

River Dyeing, the presumption of a union’s majority

Status following its certification is “based not so much on

an absolute certainty that the union’s majority status will

not erode following certification, as on a particular policy

deeision”—the policy of “‘promotf{ing] stability in

eollective-bargaining relationships, without impairing the

free choice of employees.’” 482 U.S. at 38 (citation

omitted; brackets in original). As the Court noted, the

presumptions of continued majority support —irrebut-

table during the first year, and rebuttable thereafter —

“enable a union to concentrate on obtaining and fairly ad-

ministering a collective-bargaining agreement without

worrying that, unless it produces immediate results, it will

lose majority support and will be decertified.” J/bid.

Moreover, the presumptions “remove any temptation on

the part of the employer to avoid good-faith bargaining in

the hope that, by delaying, it will undermine the union’s

support among the employees.” /bid. “The upshot of the

presumptions,” the Court concluded, “is to permit unions

to develop stable bargaining relationships with employers,

which will enable the unions to pursue the goals of their

members, and this pursuit, in turn, will further industrial

peace.” Jd. at 38-39.

The no-presumption rule for gauging the union sen-

timents of striker replacements promotes the same pur-

poses. By requiring the employer to establish the

replacements’ views on a case-by-case basis, the no-

presumption rule limits the employer’s ability to oust an

incumbent union simply by replacing a sufficient number

of its members. Only by demonstrating that the replace-

ments are actually opposed to the union may an employer

carry his burden of proving a good-faith doubt of majori-

ty status. The no-presumption rule is thus in harmony with

the overall rebuttable presumption of continued majority

support for the union, and accordingly furthers the in-

terest in bargaining stability.

By contrast, the Gorman presumption, adopted by the

court below, would disserve the policy of stable bargaining

relationships in two respects. First, it would discourage

employers from engaging in good-faith bargaining with

the union, see Fall River Dyeing, 482 U.S. at 38; by in-

viting a strike, employers would be creating an opportun-

ity to hire striker replacements who would be presumed to

be anti-union. And once a strike had begun, the Gorman

presumption would discourage employers from reaching

settlements with the incumbent union, encouraging them

instead “to withdraw from bargaining upon the mere addi-

tion of the requisite number of permanent replacements to

the payroll.” Flynn, The Economic Strike Bar: Looking

Beyond The “Union Sentiments” Of Permanent

Replacements, 61 Temple L. Rev. 691, 706 (1988). Second

and relatedly, by relieving the employer of the burden of

coming forth with evidence that the striker replacements

actually oppose the union, the Gorman presumption

would make it easier for an employer to justify a

withdrawal of recognition. The Gorman presumption

thereby increases the chances that the incumbent union

would be ousted by the employer once the strike began.'°

The interest in bargaining stability— promoted by the

no-presumption rule, but strongly disserved by the Gor-

man presumption —is vitally at stake in the context of an

economic strike. Strikes are “part and parcel of the system

'° As in the present case, employers sometimes hire more

replacements than strikers, asserting concerns Over inexperience or an-

ticipated attrition; it is particularly important to assure that those

decisions are not made for the purpose of unseating the union. See

Flynn, The Economic Strike Bar: Looking Beyond the “Union Sen-

timents” of Permanent Replacements, 61 Temple L. Rev. 691, 692

n.7, 705 (1988) (noting increased willingness of employers to hire per-

manent replacements and the opportunity this provides to “oust”

union). See also Weiler, Striking a New Balance: Freedom of Contract

and the Prospects for Union Representation, 98 Harv. L. Rev. 351,

362, 390 (1984). The willingness of some employers to Oust a union is

reflected in cases in which the Board has found a violation based on

the hiring of excessive replacements for the purpose of depriving

strikers of reinstatement rights. See Magic Chef, Inc., 286 N.L.R.B.

No. 33 (Mar. 31, 1986), slip op. 21-22. See also Aurz-Aasch, Inc., 286

N.L.R.B. No. 131 (Nov. 30, 1987), slip op. 42-47, remanded, 865 F.2d

757 (6th Cir. 1989) (discriminatory failure to reinstate strikers as

vacancies occurred); Laher Spring & Electric Car Corp., 192

N.L.R.B. 464, 464-466 (1971).

that the Wagner and Taft-Hartley Acts have recognized”

(NLRB v. Insurance Agents’ Int’l Union, 361 U.S. 477,

489 (1960)), and Congress intended them to be part of col-

lective bargaining, not the engine of its destruction.''

Where economic strikers have been permanently replaced,

however, the post-strike union—as in the successorship

situation considered in Fall River Dyeing—“is in a

peculiarly vulnerable position” (482 U.S. at 39).'? Because

the workforce, and the sentiments of the employees, are in

a state of flux, the post-strike union cannot be certain

whether it will command sufficient support to continue as

the exclusive representative. “[D]uring this unsettling tran-

sition period” (ibid.), the no-presumption rule reduces the

employer’s incentive to stonewall negotiations, and limits

the employer’s ability to oust the union by the simple expe-

dient of replacing its membership.'?

Even as it promotes the stability of the bargaining rela-

tionship, the Board must also be responsive to the “ ‘free

choice’ of employees” in selecting or rejecting a bargaining

'' As one commentator has put it (Estreicher, Strikers and

Replacements, 38 Lab. L. J. (CCH) 287, 288 (1987)):

[W]hile economic conflict is an essential, legitimate feature of our

collective bargaining system, a strike should ordinarily not pro-

vide an occasion for terminating the bargaining relationship. The

strike is a means of resolving a dispute, not destroying the

underlying bargaining structure. * * *

[W]e are dealing with a form of limited warfare, cabined by a set

of rules to make sure that the relationship survives the conflict.

'2 The present case illustrates that vulnerability. At the conclusion

of the strike, when the Union capitulated and agreed to accept respon-

dent’s May 25 contract offer, respondent nevertheless refused to

renew that offer and instead withdrew recognition from the Union.

'} Congress’s 1959 amendment of Section %c)(3) of the Act, 29

U.S.C. 1§9%(c)(3), reflects the statutory policy of encouraging stability

representative (Fa// River Dyeing, 482 U.S. at 38). The no-

presumption rule is fully consistent with that objective.

Although the rule does not entitle an employer

automatically to treat replacements as union opponents,

the employer remains free to marshal evidence concerning

the replacements’ sentiments, and thereby to establish its

good-faith doubt of the union’s majority status.'+ Similar-

ly, the employees “are not powerless to reject a union that

they believe no longer commands their support” (id. at 50

n.16). All employees, including striker replacements, are

free to invoke the Board’s election procedures during or

after a strike by filing a decertification petition. See NLRB

v. Gissel Packing Co., 395 U.S. 575, 613 (1969).'5

in the bargaining unit. Prior to 1959, Section 9(c)(3) provided that

“{e]mployees on strike who are not entitled to reinstatement shali not

be eligible to vote” for a bargaining representative. Characterizing

that provision as “an unfair, ‘union busting’ rule,” that could be used

“ ‘to destroy a union’ during an economic strike” ( Legislative History

of the Labor-Management Reporting and Disclosure Act of 1959, at

427-429, 452, 1064-1065, 1070, 1138 (GPO 1959)), Congress in 1959

amended Section 9(c)(3) to permit replaced economic strikers to vote

in any election conducted within 12 months after commencement of

the strike. The no-presumption rule regarding striker replacements is

consistent with Congress’s evident desire to foster continuity and

Stability in the bargaining relationship during the course of an

economic strike. See C.H. Guenther & Son, Inc., 174 N.L.R.B. 1202,

1203 (1969), enforced, 427 F.2d 983 (Sth Cir.), cert. denied, 400 U.S.

942 (1970); NLRB v. Crimptex, Inc., 517 F.2d 501, 504 (ist Cir.

1975).

'* For a summary of instances in which such a showing has been

made in the past, see R. Gorman, Labor Law 110-111 (1976).

'* If the petition is supported by a majority of the bargaining unit,

it will probably justify the employer's withdrawal of recognition. See

3. The no-presumption rule assures that the statutory right to

strike will not be unduly chilled by a threat that the union will

lose recognition

Section 13 of the Act, 29 U.S.C. 163, states that

“(njothing in this subchapter, except as specifically pro-

vided for herein, shall be construed so as either to interfere

with or impede or diminish in any way the right to strike

***” The Act’s “solicitude for the right to strike is

predicated upon the conclusion that a strike when

legitimately employed is an economic weapon which in

great measure implements and supports the principles of

the collective bargaining system.” NLRB vy. Erie Resistor

Corp., 373 U.S. 221, 223-234 (1963). To be sure, this

“solicitude for the right to strike” does not immunize

strikers from all adverse consequences, for the employer is

entitled to use economic weapons of its own. Thus, in the

interests of carrying on its business during an economic

strike, an employer may permanently replace its striking

workers, NLRB v. Mackay Radio & Telegraph Co., 304

U.S. 333, 345-346 (1938), and may use the lockout offen-

sively, American Ship Building Co. v. NLRB, 380 U.S.

300, 310 (1965), even though such tactics may diminish the

effectiveness of a strike.

Automated Business Systems v. NLRB, 497 F.2d 262, 270 n.6 (6th

Cir. 1974). If supported by a 30% showing, it vill ordinarily trigger a

Board election. See Retired Persons Pharmacy v. NLRB, 519 F.2d

486, 490 (2d Cir. 1975) (“When an employer refuses to engage in col-

lective bargaining allegedly in defense of the rights of his employees, it

is proper for the Board to strike the balance differently from the situa-

tion when the employees themselves assert their own rights ana de-

mand a decertification election.”) Cf. Fall River Dyeing, 482 U.S. at

$0 n.16 (disapproving employer's reliance on employees’ rights in

justifying refusal to bargain); NLRB v. Frick Co., 423 F.2d 1327,

1334-1335 (3d Cir. 1970).

—

Forging the appropriate balance between these com-

peting economic weapons is one of the Board’s central

tasks. It is the Board, and not the courts, that must

“weigh[] the interests of employees in concerted activity

against the interest of the employer in operating his

business in a particular manner” (NLRB vy. Erie Resistor

Corp., 373 U.S. at 229). Thus, in Erie Resistor, the Court

upheld the Board’s judgment that an offer of supersenior-

ity to replacement employees and crossovers was

unlawful, noting that “[s]uper-seniority renders future

bargaining difficult, if not impossible, for the collective

bargaining representative” (/d. at 231). And the Court em-

phasized that striking the appropriate balance is the

Board’s responsibility, in light of its “special understan-

ding of ‘the actualities of industrial relations’ ” (id. at 236).

Performing that function in Station KKHI, the Board

reasonably concluded that adopting the Gorman presump-

tion “would disrupt the balance of competing economic

weapons long established in strike situations and substan-

tially impair the employees’ right to strike by adding to the

risk of replacement the risk of loss of the bargaining

representative * * *” (Pet. App. 75a-76a). As a practical

matter, the Board noted, the Gorman presumption would

allow employers to terminate a bargaining relationship

whenever a strike occurs, simply by hiring sufficient per-

manent replacements to constitute a majority of the unit.

If adopted, the Gorman presumption would therefore

threaten striking workers with more than the risk of job

loss. Although employees know that they risk being per-

manently replaced when they undertake an economic

Strike, they also know that many strikes ultimately result

in a Strike setthkement agreement that entitles the strikers to

reclaim their jobs. See Belknap, Inc. v. Hale, 463 U.S.

491, 503-504 (1983).'* If employers are permitted to cease

recognizing the union during a strike once they have hired

sufficient permanent employees to doubt the union’s ma-

jority status, the employees may lose not only their jobs,

but also a representative to negotiate a satisfactory strike

settlement. And once the strike has ended, the loss of a

bargaining representative diminishes the chances that

strikers — who remain employees under the statute — will

be notified of vacancies when they occur, and restored to

their positions. See NLRB v. Fleetwood Trailer Co., 389

U.S. 375 (1967); Laidlaw Corp., 171 N.L.R.B. 1366

(1968), enforced, 414 F.2d 99 (7th Cir. 1969), cert. denied,

397 U.S. 920 (1970); 29 U.S.C. 152(3) (“employee” in-

cludes “any individual whose work has ceased as a conse-

quence of, or in connection with, any current labor

dispute”).'’

‘6 As Professor Estreicher has noted, a strike is a “period in flux,

when the status of both replacements and strikers has yet to be fixed

because the strike has not ended, and much will turn on the manner in

which the strike is settled.” 38 Lab. L. J. (CCH) at 293. See also

Flynn, 61 Temple L. Rev. at 705-706.

'? The termination of an economic strike may generate a variety of

other issues that the union can play an instrumental role in resolving.

Once reinstated, strikers are entitled to receive all former rights and

privileges as employees, including seniority. Erie Resistor, 373 U.S. at

233. They may need the union to realize those rights when reinstated.

Other questions may arise as to (1) whether striker replacements are

“permanent,” and thus whether strikers are entitled to an immediate

offer of reinstatement (see, e.g., NLRB v. Murray Products, Inc., 584

F.2d 934, 938-939 (9th Cir. 1978)); (2) whether the employer’s offer of

reinstatement was invalid, either because the reinstatement or the of-

fer itself was improperly conditional (see, e.g., NLRB v. Great Dane

Trailers, Inc., 388 U.S. 26, 27-32 (1967); NLRB v. Erie Resistor

Corp., 373 U.S. at 223, 225); (3) whether strikers have forfeited

reinstatement due to misconduct (see, e.g., Allied Indus. Workers,

Local 289 v. NLRB, 476 F.2d 868, 878-881 (D.C. Cir. 1973)); or (4)

Threatening strikers with a loss of their representative,

as well as their jobs, greatly enhances the risks of an un-

successful strike. As long as the union remains the

representative of the bargaining unit, the striking

employees, upon their ultimate return to work, will obtain

whatever benefits the union is able to secure, and may con-

tinue their collective efforts. If, on the other hand, an un-

successful strike carries with it the likely loss of representa-

tion, the strike becomes not just one battle in an ongoing

contest, but potentially a total defeat — one that concludes

the contest with a loss of the bargaining relationship. That

added risk is likely to chill the exercise of the right to

Strike.

* * * * *

An employer’s withdrawal of a union’s recognition as

bargaining representative is not simply the use of an

“economic weapon”; it is an attempt to revoke a status

conferred on the representative by law in order to effec-

tuate the policies of the Act. Thus the question of the ap-

propriate grounds for withdrawal is one on which the

Board’s expert judgment is especially entitled to deference.

In the present case, the Board has exercised its judgment

by declining to allow invocation of the Gorman presump-

tion and by following instead a no-presumption rule. That

determination—based on both empirical and_ policy

grounds —is entirely reasonable, and the decision of the

Whether limited jobs, promotional opportunities, or other benefits

belong to strikers, replacements, or crossovers (see, e.g., Trans World

Airlines, Inc. v. Independent Federation of Flight Attendants, 109 S.

Ct. 1225 (1989); Belknap, Inc. v. Hale, 463 U.S. 491 (1983); Randall,

Div. of Textron, Inc. v. NLRB, 687 F.2d 1240, 1241-1249 (8th Cir.

1982), cert. denied, 461 U.S. 914 (1983)). The absence of a union may

mean, as a practical matter, that such often complex issues may not be

resolved properly or, indeed, raised at all by unrepresented employees.

court of appeals, resting solely on its own preference for

the Gorman presumption, should be reversed. '*

'® A preference for the Gorman presumption does not, of course,

justify a departure from the no-presumption rule adopted by the

Board. As this Court has explained, “[w]here the Board’s construction

of the Act is reasonable, it should not be rejected ‘merely because the

courts might prefer another view of the statute.’ ” Pattern Makers’

League of North America v. NLRB, 473 U.S. 95, 114 (1985).

The court of appeals also seems to have misunderstood the way in

which the no-presumption rule operates. The court surmised that the

no-presumption rule “has the same effect as the presumption that

striker replacements support the union in the same ratio as the

employees they replace” (Pet. App. 9a). As Judge Williams explained

in dissent (id. at 17a), however, the two standards operate quite dif-

ferently. To be sure, under the no-presumption rule the employer

must still overcome the general rebuttable presumption that the union

enjoys majority support. But unlike the Board’s prior standard, the

no-presumption rule does not require the employer to overcome the

additional “presumption that the replacement workers * * * support

the union” (ibid.). See also Hajoca Corp. v. NLRB, 872 F.2d 1169,

1174-1175 (3d Cir. 1989) (“Station KKHI removed the employer’s ini-

tial hurdle of having to come forward with evidence sufficient to show

that replacement workers did not support the union, and then further

evidence to carry its burden to show an objective basis for a good faith

doubt”). The court of appeals’ failure to recognize the practical dif-

ferences between the Board’s present and prior standards apparently

contributed to the court’s unwillingness to accept the no-presumption

rule in this case.

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.