Lechmere, Inc. v. NLRB, 502 U.S. 527, 19 (1992)

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Cite as: 502 U. S. 527 (1992)

White, J., dissenting

The majority today asserts that "[i]t is only where [reasonable alternative] access is infeasible that it becomes necessary and proper to take the accommodation inquiry to a second level, balancing the employees' and employers' rights." Ante, at 538. Our cases, however, are more consistent with the Jean Country view that reasonable alternatives are an important factor in finding the least destructive accommodation between 7 and property rights. The majority's assertion to this effect notwithstanding, our cases do not require a prior showing regarding reasonable alternatives as a precondition to any inquiry balancing the two rights. The majority can hardly fault the Board for a decision which "conflates . . . two stages of the inquiry," ante, at 538, when no two-stage inquiry has been set forth by this Court.

Third, and more fundamentally, Babcock is at odds with modern concepts of deference to an administrative agency charged with administering a statute. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). When reviewing an agency's construction of a statute, we ask first whether Congress has spoken to the precise question at issue. Id., at 842. If it has not, we do not simply impose our own construction on the statute; rather, we determine if the agency's view is based on a permissible construction of the statute. Id., at 843. Babcock did not ask if Congress had specifically spoken to the issue of access by third parties and did not purport to explain how the NLRA specifically dealt with what the access rule should be where third parties are concerned. If it had made such an inquiry, the only basis for finding statutory language that settled the issue would have been the language of 7, which speaks only of the rights of employees; i. e., the Court might have found that 7 extends no access rights at all to union representatives. But Babcock itself recognized that

the extent that it addressed the relevant issues, it reaffirmed the refined and more detailed guidance offered by Hudgens.

545

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