Page:Glacier Northwest v. Teamsters.pdf/32

Rh The majority’s reason for declining to address this argument is noteworthy. It explains that, because the General Counsel’s complaint was filed after the Washington Supreme Court had affirmed the dismissal of Glacier’s complaint on Garmon grounds, “[t]he lower courts have not addressed the significance, if any, of the Board’s complaint with respect to Garmon preemption.” And since we are “ ‘a court of review, not of first view,’ ”  (quoting Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005)), the majority declines to “do so in the first instance.”

This rationale is inconsistent with the broader approach that the majority takes in this case. It would be one thing if the Court simply noted the filing of the General Counsel’s complaint and authorized the lower courts to evaluate the impact of that complaint on the Garmon question in the first instance. But it goes further: The majority also inserts itself into the midst of this labor dispute now (despite the General Counsel’s complaint), proceeding to apply the Board’s cases to novel and difficult line-drawing questions and ultimately concluding that the strike conduct alleged in Glacier’s complaint is not even arguably protected.

The majority cannot have it both ways. A concern about the Court’s institutional role justifies, at most, vacating the judgment below and remanding for the lower court to consider the import of the General Counsel’s complaint. The same observation that compels the majority to allow for such lower-court consideration—that we are “ ‘a court of review, not of first view,’ ” —should have likewise led it to decline to intrude into this labor dispute while it is pending before the Board.

For the reasons discussed above, I would have vacated the Washington Supreme Court’s judgment and remanded