Jackson, J., dissenting
so because the entire point of Garmon’s arguably-protected test is to permit the court to assess the facts and relevant labor law in service of a gatekeeping function. The answer to the Garmon question simply (and solely) establishes whether the court can continue to entertain a lawsuit that relates to the challenged strike conduct, or whether the legal action must be suspended to allow the Board to make an initial assessment of the matter. The court evaluates the existing evidence and the law for a specific reason: to determine whether the lawsuit attacks arguably-protected conduct such that entertaining the legal action will interfere with the Board’s prerogative to develop the facts and adjudicate the merits of the dispute as part of the Board’s broader authority to develop national labor law.
If the General Counsel investigates the matter and files a complaint with the Board alleging that the union’s conduct is protected, it becomes indisputable that the pending legal action might interfere with the Board’s authority. Thus, a General Counsel complaint relieves the court of the burden of having to make the arguably-protected assessment based on its own understanding of the evidence and labor law—it is “arguable” that the union’s conduct is protected because the General Counsel is arguing just that. To be sure, we have said that the arguably-protected test is “not without substance” and is “not satisfied by a conclusory assertion of pre-emption.” Davis, 476 U. S., at 394. But an allegation from the Board’s General Counsel after a thorough investigation is a far cry from a “conclusory assertion” of protection.[1]
What is more, by virtue of the General Counsel’s complaint, the Board is, at this very moment, exercising its authority to adjudicate the merits of this dispute. On January
- ↑ This is not to suggest that the General Counsel’s complaint is the end of the story, as the Board may ultimately disagree with the factual or legal basis of that pleading. But the complaint is surely sufficient to establish arguable protection, such that a court should stay its hand.
