Page:Glacier Northwest v. Teamsters.pdf/23

2 the union’s conduct is at least arguably protected by the NLRA. Consequently, where (as here) there is a General Counsel complaint pending before the Board, courts—including this Court—should suspend their examination. Garmon makes clear that we have no business delving into this particular labor dispute at this time.

But instead of modestly standing down, the majority eagerly inserts itself into this conflict, proceeding to opine on the propriety of the union’s strike activity based on the facts alleged in the employer’s state-court complaint. As part of this mistaken expedition, the majority tries its own hand at applying the Board’s decisions to a relatively novel scenario that poses difficult line-drawing questions—fact-sensitive issues that Congress plainly intended for the Board to address after an investigation. And in the course of inappropriately weighing in on the merits of those questions at this stage, the majority also misapplies the Board’s cases in a manner that threatens to both impede the Board’s uniform development of labor law and erode the right to strike.

In my view, today’s misguided foray underscores the wisdom of Congress’s decision to create an agency that is uniquely positioned to evaluate the facts and apply the law in cases such as this one. This case is Exhibit A as to why the Board—and not the courts—should ordinarily take the first crack at resolving contentious, fact-bound labor disputes of this nature. Because the majority’s ruling suggests otherwise, I respectfully dissent.

The majority’s brief opinion quotes Garmon’s “arguably protected” test and endeavors to apply it. , . But the opinion devotes relatively little space to the origins and purpose of that longstanding precedent. That omission is telling. A proper understanding of Garmon’s foundation sheds considerable light on the majority’s sequential missteps in this case.