Jackson, J., dissenting
with directions to stay proceedings or dismiss Glacier’s complaint without prejudice, on the straightforward ground that the General Counsel’s complaint triggers the jurisdictional hiatus that Garmon requires.[1]
The majority sidesteps my preferred resolution of this matter and instead proceeds to engage in Garmon’s “arguably protected” test by applying a series of fact-intensive Board decisions to the bare allegations in Glacier’s state-court complaint. To do this, the majority invokes the Board’s “reasonable precautions” principle. Ante, at 6–8. That principle (discussed in Part IV, infra) is derived from the Board’s determination that striking workers must take reasonable precautions to protect persons, the employer’s premises, and its equipment from foreseeable, aggravated, and imminent harm due to the sudden cessation of work. The majority has taken it upon itself to apply the Board’s reasonable-precautions principle to the factual allegations about the Union’s conduct that Glacier alleges in this lawsuit, and it thereby concludes that the drivers’ conduct is not even arguably protected by the NLRA.
This course of action (which is already confounding given that the Board itself is currently considering the challenged strike conduct with the benefit of developed facts and labor law expertise) reflects an analytical approach to the issues presented that cannot be squared with Garmon.
A
Whether the NLRA protects particular strike conduct often turns on subtle factual disputes and nuanced legal distinctions. Here, for example, whether the Union’s strike conduct is protected or unprotected might well depend on
- ↑ The Washington Supreme Court affirmed the dismissal of Glacier’s claims. Because only a pause of the state-court litigation is necessary under Garmon, the proper disposition is either a stay of proceedings or dismissal without prejudice.
