Byron White

“ First, that Babcock stated that inaccessibility would be a reason to grant access does not indicate that there would be no other circumstance that would warrant entry to the employer's parking lot and would satisfy the Court's admonition that accommodation must be made with as little destruction of property rights as is consistent with the right of employees to learn the advantages of self-organization from others. Of course the union must show that its "reasonable efforts", without access, will not permit proper communication with employees. ”

“ 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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) . When reviewing an agency's construction of a statute, we ask first whether Congress has spoken to the precise question at issue. ”

“ 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. [1]
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." ”