388
Opinion of Breyer, J.
and state interests, even though its interpretation is a rational construction of the Act). As in DeBartolo, I conclude that § 8(a)(1) "is open to a construction that obviates deciding whether a congressional prohibition of [employer polling] on the facts of this case would violate the First Amendment." 485 U. S., at 578.
In my view, cases such as Gissel, supra, Thomas, supra, and Virginia Elec. & Power Co., supra, mean that the Board must allow polling where it does not tend to coerce or restrain employees. The Board must decide how and when in the first instance, but its decision must be rational, it must have a basis in the Act, and, of course, it may not violate the First Amendment.
The Court, however, concludes that the Board's standard is lawful. Accepting that conclusion, arguendo, I agree that the Board's findings are not supported by substantial evidence. I therefore join Parts I, III, and IV of the Court's opinion.
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 Court's 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 380; 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, 490ñ491 (1951). It has rewritten a National Labor Relations Board (Board) rule without adequate justification. It has ignored certain evidentiary presumptions developed by the Board to provide guidance in the application of this rule. And it has failed to give the kind of leeway to the Board's factfinding authority
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