Page:Glacier Northwest v. Teamsters.pdf/36

Rh that might ultimately favor the union, such that the lawsuit should pause to allow the Board to gather the facts and apply its expertise to determine whether the strike was lawful.

The majority seems to misunderstand all this in the context of this case. It correctly concludes that the Union has carried its burden of “advancing an interpretation of the [NLRA] that is not plainly contrary to its language and that has not been authoritatively rejected by the courts or the Board.” (internal quotation marks omitted). But it finds that the Union has failed to satisfy the second Garmon step, and it does so after undertaking its own assessment of the facts alleged in Glacier’s complaint and endeavoring to apply the Board’s fact-bound reasonable-precautions precedents. See, e.g., (determining, based on alleged facts, that “[t]he drivers engaged in a sudden cessation of work that put Glacier’s property in foreseeable and imminent danger” and that the risk of harm to the concrete-delivery trucks was “both foreseeable and serious”); ibid. (concluding that “[t]he Union failed to ‘take reasonable precautions,’ ” after hypothesizing various steps that, according to the majority, the Union should have taken but did not).

Given what I have already said about Garmon’s purpose and what it calls for, the majority’s error in proceeding in this fashion is obvious. To my mind, if a court that is evaluating what to do per Garmon finds itself weighing in on such fact-bound matters as whether the strike posed a risk of harm that was aggravated enough or imminent enough to remove NLRA protection, or starts contemplating whether the precautions that the striking employees took to address any such risk were reasonable enough to allow them to retain the right to strike, it has unwittingly wandered into a domain that Congress intentionally assigned