Page:United States Reports 502 OCT. TERM 1991.pdf/704

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

employees have a right to learn from others about selforganization, 351 U. S., at 113, and itself recognized that in some circumstances, §§ 7 and 8 required the employer to grant the union access to parking lots. So have later Courts, and so does the Court today. That being the case, the Babcock Court should have recognized that the Board’s construction of the statute was a permissible one and deferred to its judgment. Instead, the Court simply announced that as far as access is concerned, third parties must be treated less favorably than employees. Furthermore, after issuing a construction of the statute different from that of the Board, rather than remanding to the Board to determine how third parties should be dealt with, the Babcock Court essentially took over the agency’s job, not only by detailing how union organizer access should be determined but also by announcing that the records before it did not contain facts that would satisfy the newly coined access rule. Had a case like Babcock been first presented for decision under the law governing in 1991, I am quite sure that we would have deferred to the Board, or at least attempted to find sounder ground for not doing so. Furthermore, had the Board ruled that third parties must be treated differently than employees and held them to the standard that the Court now says Babcock mandated, it is clear enough that we also would have accepted that construction of the statute. But it is also clear, at least to me, that if the Board later reworked that rule in the manner of Jean Country, we would also accept the Board’s change of mind. See NLRB v. Curtin Matheson Scientific, Inc., 494 U. S., at 787; NLRB v. J. Weingarten, Inc., 420 U. S. 251, 265–266 (1975). As it is, the Court’s decision fails to recognize that Babcock is at odds with the current law of deference to administrative agencies and compounds that error by adopting the substantive approach Babcock applied lock, stock, and barrel. And unnecessarily so, for, as indicated above, Babcock certainly