Page:Glacier Northwest v. Teamsters.pdf/29

8 With respect to Glacier’s tort suit, the Washington courts engaged in the standard Garmon inquiry, ultimately resulting in a determination by the Washington Supreme Court that the lawsuit could not proceed because the Union’s strike conduct was arguably protected by the NLRA. Glacier sought, and we granted, certiorari to review that decision. Notably, however, after the Washington Supreme Court issued its decision, the regional director acting on behalf of the Board’s General Counsel filed an administrative complaint against Glacier. In my view, for the reasons explained below, that subsequent event has greatly simplified the Garmon question.

The filing of the General Counsel’s administrative complaint necessarily suffices to establish that the Union’s strike conduct is “arguably protected” within the meaning of Garmon. Thus, the General Counsel’s complaint should have marked the end of any court involvement in this matter at this time.

The General Counsel’s complaint alleges that Glacier interfered with strike conduct protected by §7 when it disciplined its drivers for walking off the job and when it filed this tort suit. That complaint represents the General Counsel’s conclusion—reached after an extensive independent investigation involving collecting testimony and other evidence, and after careful consideration of the competing legal principles and policy concerns—that the Union’s claim that its strike conduct was protected “appears to have merit.” 29 CFR §§101.4, 101.8. One “cannot credibly contend that a claim that makes it through this gauntlet does not concern conduct ‘arguably’ protected by the NLRA.” Davis Supermarkets, Inc. v. NLRB, 2 F. 3d 1162, 1179 (CADC 1993); accord, Makro, Inc., 305 N. L. R. B. 663, 670 (1991).

A court presented with a General Counsel complaint should therefore find Garmon inherently satisfied. This is