Cite as: 522 U. S. 359 (1998)
Opinion of the Court
how many express disavowals would have been enough to establish reasonable doubt, but the number must presumably be less than 16 (half of the bargaining unit), since that would establish reasonable certainty. Still, we would not say that 20% first-hand-confirmed opposition (even with no countering evidence of union support) is alone enough to require a conclusion of reasonable doubt. But there was much more.
For one thing, the ALJ and the Board totally disregarded the effect upon Allentown of the statement of an eighth employee, Dennis Marsh, who said that "he was not being represented for the $35 he was paying." Ibid. The ALJ, whose findings were adopted by the Board, said that this statement "seems more an expression of a desire for better representation than one for no representation at all." Ibid. It seems to us that it is, more accurately, simply an expression of dissatisfaction with the union's performance—which could reflect the speaker's desire that the union represent him more effectively, but could also reflect the speaker's desire to save his $35 and get rid of the union. The statement would assuredly engender an uncertainty whether the speaker supported the union, and so could not be entirely ignored.
But the most significant evidence excluded from consideration by the Board consisted of statements of two employees regarding not merely their own support of the union, but support among the work force in general. Kermit Bloch, who worked on the night shift, told an Allentown manager that "the entire night shift did not want the Union." Ibid. The ALJ refused to credit this, because "Bloch did not testify and thus could not explain how he formed his opinion about the views of his fellow employees." Ibid. Unsubstantiated assertions that other employees do not support the union certainly do not establish the fact of that disfavor with the degree of reliability ordinarily demanded in legal proceedings. But under the Board's enunciated test for polling, it is not the fact of disfavor that is at issue (the poll itself is meant to establish that), but rather the existence of a reason-
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