Thomas, J., concurring in judgment
instance to the [NLRB].” 359 U. S., at 242, 244–245. To do otherwise, it feared, “would create potential frustration of national purposes” and invite “the danger of state interference with national policy.” Id., at 244–245.
Justice Harlan concurred in the result, warning that the majority’s rule would “reduc[e] to the vanishing point” States’ “power to redress wrongful acts in the labor field” and provide any “effective remedy under their own laws for … tortious conduct.” Id., at 253–254. The years since have borne out that warning. Garmon elevates “even the remotest possibility of conflict,” thereby “overstat[ing] the likelihood and significance of conflicts and … set[ting] up an unreal goal of doctrinal and factual harmony.” L. Jaffe, Primary Jurisdiction, 77 Harv. L. Rev. 1037, 1053 (1964). In effect, “Garmon doctrine completely pre-empts state-court jurisdiction unless the Board determines that the disputed conduct is neither protected nor prohibited by the [NLRA].” Sears, Roebuck & Co. v. Carpenters, 436 U. S. 180, 199, n. 29 (1978).
The majority opinion today underscores the strangeness of the Garmon regime. Here, the Supreme Court of the United States reassures a state court of its power to adjudicate a state-law tort claim. The Court does so, not based on its own judgment that federal law does not pre-empt the claim, but because the NLRB’s existing precedents adequately remove any “[c]lou[d]” over the matter. 359 U. S., at 246. But, if the Board’s precedents left the matter “arguable” (and the NLRA did not plainly dictate an answer), then the state courts would be “ousted” of jurisdiction. Longshoremen v. Davis, 476 U. S. 380, 396 (1986). The upshot of this approach appears to be that the scope of the NLRA’s pre-emption of state-court jurisdiction over state claims is defined—not by the statutory text—but by “penumbra[s]” that wax and wane as the Board develops, or declines to develop, its own carefully insulated common law
