Cite as: 522 U. S. 359 (1998)
Opinion of the Court
standard, although ostensibly a highly fact-dependent totality-of-the-circumstances test, approaches a per se rule in application . . . ." Flynn, The Costs and Benefits of "Hiding the Ball": NLRB Policymaking and the Failure of Judicial Review, 75 B. U. L. Rev. 387, 394-395 (1995) (footnotes omitted).
See also Weeks, The Union's Mid-Contract Loss of Majority Support: A Waivering Presumption, 20 Wake Forest L. Rev. 883, 889 (1984). Members of this Court have observed the same phenomenon. See NLRB v. Curtin Matheson Scientific, Inc., 494 U. S. 775, 797 (1990) (Rehnquist, C. J., concurring) ("[S]ome recent decisions suggest that [the Board] now requires an employer to show that individual employees have 'expressed desires' to repudiate the incumbent union in order to establish a reasonable doubt of the union's majority status"); id., at 799 (Blackmun, J., dissenting) ("[T]he Board appears to require that good-faith doubt be established by express avowals of individual employees").
It is certainly conceivable that an adjudicating agency might consistently require a particular substantive standard to be established by a quantity or character of evidence so far beyond what reason and logic would require as to make it apparent that the announced standard is not really the effective one. And it is conceivable that in certain categories of cases an adjudicating agency which purports to be applying a preponderance standard of proof might so consistently demand in fact more than a preponderance, that all should be on notice from its case law that the genuine burden of proof is more than a preponderance. The question arises, then, whether, if that should be the situation that obtains here, we ought to measure the evidentiary support for the Board's decision against the standards consistently applied rather than the standards recited. As a theoretical matter (and leaving aside the question of legal authority), the Board could certainly have raised the bar for employer polling or
373
Page: Index Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 NextLast modified: October 4, 2007