|ALLENTOWN MACK SALES & SERVICE, INC. v. NLRB (96-795)|
83 F.3d 1483, reversed and remanded.
[ Scalia ]
[ Rehnquist ]
[ Breyer ]
Opinion of Breyer, J.
ALLENTOWN MACK SALES AND SERVICE, INC., PETITIONER v. NATIONAL LABOR
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[January 26, 1998]
Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, concurring in part and dissenting in part.
I concur in Parts I and II and dissent from Parts III and IV of the Courts opinion. In Parts III and IV, the Court holds unlawful an agency conclusion on the ground that it is not supported by substantial evidence. Ante, at 19; see 29 U.S.C. § 160(e); 5 U.S.C. § 706(2)(E). That question was not presented to us in the petition for certiorari. In deciding it, the Court has departed from the half-century old legal standard governing this type of review. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 490491 (1951). It has rewritten a Board rule without adequate justification. It has ignored certain evidentiary presumptions developed by the National Labor Relations Board (Board) to provide guidance in the application of this rule. And it has failed to give the kind of leeway to the Boards factfinding authority that the Courts precedents mandate. See, e.g., Beth Israel Hospital v. NLRB, 437 U.S. 483, 504 (1978).
To decide whether an agencys conclusion is supported by substantial evidence, a reviewing court must identify the conclusion and then examine and weigh the evidence. As this Court said in 1951, [w]hether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals. Universal Camera, supra, at 491. The Court held that it would intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied. Ibid.; see Beth Israel Hospital, supra, at 507 (
The majority opinion begins by properly stating the Boards conclusion, namely that the employer, Allentown, did not demonstrate that it
held a reasonable doubt, based on objective considerations, that the Union continued to enjoy the support of a majority of the bargaining unit employees. Ante, at 6 (emphasis added).
The opinion, however, then omits the words I have italicized and transforms this conclusion, rephrasing it as:
Allentown lacked a genuine, reasonable uncertainty about whether Local 724 enjoyed the continuing support of a majority of unit employees. Ante, at 8.
Key words of a technical sort that the Board has used in hundreds of opinions written over several decades to express what the Administrative Law Judge (ALJ) here called objective reasonable doubt have suddenly disappeared, leaving in their place what looks like an ordinary jury standard that might reflect, not an agencys specialized knowledge of the workplace, but a courts common understanding of human psychology. The only authority cited for the transformation, the dictionary, in fact offers no support, for the majority has looked up the wrong word, namely doubt, instead of the right word, objective. In any event, the majoritys interpretation departs from settled principles permitting agencies broad leeway to interpret their own rules, see, e.g., Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (courts must give substantial deference to an agencys interpretation of its own regulations); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413414 (1945) (same), which may be established through rulemaking or adjudication, see NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974); SEC v. Chenery Corp., 332 U.S. 194, 202 (1947) (same).
To illustrate the problem with the majoritys analysis, I must describe the factual background, the evidence, and the ALJs findings, in some detail. In December 1990, three managers at Mack Trucks (and several other investors) bought Mack. All of the 45 employees in the Unions bargaining unit were dismissed. The new owners changed the companys name to Allentown and then interviewed and rehired 32 of the 45 recently dismissed workers, putting them back to work at jobs similar to those they previously held. The Union, which had represented those employees for 17 years, sought continued recognition; Allentown refused it; the Boards general counsel brought unfair labor practice charges; and the ALJ found that Allentown was a successor corporation to Mack, 316 N. L. R. B. 1199, 1204 (1995), a finding that was affirmed by the Board, id., at 1199, and was not challenged in the Court of Appeals. Because Allentown was found to be a successor employer, the Union was entitled to a rebuttable presumption of majority status. See Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 41 (1987). Absent some extraordinary circumstance, when a union enjoys a rebuttable presumption of majority status, the employer is obligated recognize the union unless 30% of the unions employees petition the Board for a decertification election, (and the union loses), Texas Petrochemicals Corp., 296 N. L. R. B. 1057, 1062 (1989), enf
Allentown took the last-mentioned of these options. According to the ALJ, it sought to show that it had an objective good-faith doubt primarily by presenting the testimony of Allentown managers, who, in turn, reported statements made to them by 14 employees. The ALJ set aside the statements of 5 of those employees as insignificant for various reasonsfor example because the employees were not among the rehired 32, because their statements were equivocal, or because they made the statements at a time too long before the transition. 316 N. L. R. B., at 12061207. The majority does not take issue with the ALJs reasoning with respect to these employees. The ALJ then found that statements made by six, and possibly seven, employees (22% of the 32) helped Allentown show an objective reasonable doubt. Id., at 1207. The majority does not quarrel with this conclusion. The majority does, however, take issue with the ALJs decision not to count in Allentowns favor three further statements, made by employees Marsh, Bloch, and Mohr. Id., at 12061207. The majority says that these statements required the ALJ and the Board to find for Allentown. I cannot agree.
Consider Marshs statement. Marsh said, as the majority opinion notes, that
I do not see how, on the record before us, one could plausibly argue that these relevant general findings of the Board fall outside the Boards lawfully delegated authority. The Board in effect has said that an employee statement made during a job interview with an employer who has expressed an interest in a nonunionized work force will often tell us precisely nothing about that employees true feelings. That Board conclusion represents an exercise of the kind of discretionary authority that Congress placed squarely within the Boards administrative and fact-finding powers and responsibilities. See Radio Officers v. NLRB, 347 U.S. 17, 4950 (1954). Nor is it procedurally improper for an agency, rather like a common law court, (and drawing upon its accumulated expertise and exercising its administrative responsibilities) to use adjudicatory proceedings to develop rules of thumb about the likely weight assigned to different kinds of evidence. Cf. Bell Aerospace, 416 U.S., at 294; Chenery, 332 U.S., at 202.
Consider next Blochs statement, made during his job interview with Worth, that those on the night shift (five or six employees) did not want the Union. 316 N. L. R. B., at 1207. The ALJ thought this statement failed to provide support, both for reasons that the majority mentions (
The majority says that reason demands that Blochs statement be given considerable weight. Ante, at 10. But why? The Board, drawing upon both reason and experience, has said it will view with suspicion and caution one employees statements purporting to represent the views of other employees. Wallkill Valley General Hospital, 288 N. L. R. B. 103, 109 (1988), enf
How is it unreasonable for the Board to provide this kind of guidance, about what kinds of evidence are more likely, and what kinds are less likely, to support an objective reasonable doubt (thereby helping an employer understand just when he may refuse to bargain with an established employee representative, in the absence of an employee-generated union decertification petition)? Why is it unreasonable for an ALJ to disregard a highly general conclusory statement such as Blochs, a statement that names no names, is unsupported by any other concrete testimony, and was made during a job interview by an interviewer who foresees a nonunionized workforce? To put the matter more directly, how can the majority substitute its own judgment for that of the Board and the ALJ in respect to such detailed workplace-related matters, particularly on the basis of this record, where the question of whether we should set aside this kind of Board rule has not even been argued?
Finally, consider the Allentown managers statement that Mohr told him that if a vote was taken, the Union would lose. 316 N. L. R. B., at 1207. Since, at least from the perspective of the ALJ and the Board, the treatment of this statement presented a closer question, I shall set forth the ALJs discussion of the matter in full.
The ALJ wrote,
Should Respondent be allowed to rely on Mohrs opinion? As opposed to Bloch who offered the opinion that the night shift employees did not support the Union, Mohr, as union steward, was arguably in a position to know the sentiments of the service employees in the bargaining unit in this regard. However, there is no evidence with respect to how he gained this knowledge, or whether he was speaking about a large majority of the service employees being dissatisfied with the Union or a small majority. Moreover, he was referring to the existing service employee members of the Mack bargaining unit composed of 32 employees, whereas the Respondent hired only 23 of these men. Certainly the composition of the complement of employees hired would bear on whether this group did or did not support the Union. He also was not in a position to speak for the 11 parts employees of Mack or the 7 parts employees hired by Respondent. Mohr himself did not indicate personal dissatisfaction with the Union. Id., at 1208.
The ALJ concluded:
Given the almost off-the-cuff nature of [Mohrs] statement and the Boards historical treatment of unverified assertions by an employee about other employees sentiments, I do not find that Mohrs statements provides [sic] sufficient basis, even when considered with the other employee statements relied upon, to meet the Boards objective reasonable doubt standard for withdrawal of recognition or for polling employees. Ibid.
One can find reflected in the majority opinion some of the reasons the ALJ gave for discounting the significance of Mohrs statement. The majority says of the ALJs first reason (namely that there is no evidence with respect to how Mohr gained this knowledge) that this reason is irrelevan[t]. Ante, at 10. But why so? The lack of any specifics provides some support for the possibility that Mohr was overstating a conclusion, say, in a job-preserving effort to curry favor with Macks new managers. More importantly, since the absence of detail or support brings Mohrs statement well within the Boards pre-existing cautionary evidentiary principle (about employee statements regarding the views of other employees), it diminishes the reasonableness of any employer reliance.
The majority discusses a further reason, namely that Mohr was referring to a group of 32 employees of whom Allentown hired only 23, and the composition of the complement of employees hired would bear on whether this group did or did not support the Union. 316 N. L. R. B., at 1208. The majority considers this reason wholly irrational, because, in its view, the Board cannot rationally assume that
the work force of a successor company has the same disposition regarding the union as did the work force of the predecessor company, if the majority of the new work force came from the old one, ante, at 11.
while adopting an opposite assumption
for purposes of determining what evidence tends to establish a reasonable doubt regarding union support, ibid.
The irrationality of these assumptions, however, is not obvious. The primary objective of the National Labor Relations Act is to secure labor peace. Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S., at 38. To preserve the status quo ante may help to preserve labor peace; the first presumption may help to do so by assuming (in the absence of contrary evidence) that workers wish to preserve that status quo, see id., at 3840; the second, by requiring detailed evidence before dislodging the status quo, may help to do the same. Regardless, no one has argued that these presumptions are contradictory or illogical.
The majority fails to mention the ALJs third reason for discounting Mohrs statement, namely, that Mohr did not indicate whether he was speaking about a large majority of the service employees being dissatisfied with the Union or a small majority. 316 N. L. R. B., at 1208. It fails to mention the ALJs belief that the statement was almost off-the-cuff. Ibid. It fails to mention the ALJs reference to the Boards historical treatment of unverified assertions by an employee about other employees sentiments (which, by itself, would justify a considerable discount). Ibid. And, most importantly, it leaves out the ALJs conclusion. The ALJ did not conclude that Mohrs statement lacked evidentiary significance. Rather, the ALJ concluded that the statement did not provide sufficient basis, even when considered with other employee statements relied upon, to meet the Boards objective reasonable doubt standard. Ibid. (emphasis added).
Given this evidence, and the ALJs reasoning, the Court of Appeals found the Boards conclusion adequately supported. That conclusion is well within the Boards authority to make findings and to reach conclusions on the basis of record evidence, which authority Congress has granted, and this Courts many precedents have confirmed. See, e.g., Beth Israel Hospital v. NLRB, 437 U.S., at 504.
In sum, the majority has failed to focus upon the ALJs actual conclusions, it has failed to consider all the evidence before the ALJ, it has transformed the actual legal standard that the Board has long administered without regard to the Boards own interpretive precedents, and it has ignored the guidance that the Boards own administrative interpretations have sought to provide to the bar, to employers, to unions, and to its own administrative staff. The majoritys opinion will, I fear, weaken the system for judicial review of administrative action that this Courts precedents have carefully constructed over several decades.
For these reasons, I dissent.