Page:United States Reports 502 OCT. TERM 1991.pdf/702

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LECHMERE, INC. v. NLRB White, J., dissenting

occasion to provide direct guidance to the Board on this issue. In that case, we emphasized Babcock’s necessity-toaccommodate admonition, pointed out the differences between Babcock and Hudgens, and left the balance to be struck by the Board. “The locus of that accommodation. . . may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance.” 424 U. S., at 522. Hudgens did not purport to modify Babcock and surely indicates that Babcock announced a more flexible rule than the narrow, ironclad rule that the Court now extracts from that case. If Babcock means what the Court says it means, there is no doubt tension between that case and Hudgens. If that is so, Hudgens, as the later pronouncement on the question, issued as a directive to the Board, should be controlling.* again reaffirmed the accommodation language, as refined by Hudgens. The language we quoted in text in Sears was that of Hudgens, not Babcock. Thus, notwithstanding the majority’s assertion that Sears laid to rest any question whether Hudgens changed § 7 law, ante, at 534–535, Sears in fact endorsed the Hudgens refinement of the § 7 property rights accommodation analysis, recognizing that the accommodation may fall at differing points, and that the Board should evaluate the nature and strength of property and § 7 rights. Sears was a pre-emption case, and only peripherally involved substantive principles of § 7 accommodation by the Board. Unlike Hudgens, in Sears we did not remand for ultimate disposition by the Board, but rather remanded to the state court. Thus, we had no occasion in that case, as we did in Hudgens, to provide further guidance to the Board in its interpretation of the NLRA (and of Babcock, Hudgens, and other decisions). Our “general rule” language recounting the rarity of Board decisions allowing access should be taken for what it was, a descriptive recounting of what “experience. . . teaches,” Sears, supra, at 205, about the way that the Board had exercised its authority, and not any prescription from this Court as to the analysis the Board should apply. That analysis had already been cited. 436 U. S., at 204. Contrary to what the majority suggests, Sears did not clear up any false ambiguity created by Hudgens; to
 * In Sears, Roebuck & Co. v. Carpenters, 436 U. S. 180 (1978), we once