Jackson, J., dissenting
whether the drivers left the concrete-delivery trucks’ revolving drums turning when they walked off the job. So, too, might it depend on fine legal gradations concerning how imminent or how aggravated the risk of harm must be to trigger the duty to take reasonable precautions. These kinds of determinations cry out for evidentiary hearings, and in this highly fact-sensitive area of the law, which generally develops on a case-by-case basis, the scope of NLRA protection in a given set of circumstances is typically determined once the facts have been established—through discovery, debate, and sometimes the tedious work of making contentious credibility determinations.
Fortunately, in this regard, Congress has gifted our legal system with an expert agency that thoroughly investigates what happened—i.e., the facts of strike-related labor disputes—and then engages in the initial task of answering the sometimes complex, always fact-bound question whether the NLRA protects the strike conduct at issue. Meanwhile, a court that is undertaking Garmon’s arguably-protected analysis is engaged in a fundamentally different inquiry. As explained in Part II–A, supra, while the court is most certainly considering strike conduct arising from a labor dispute, it is not meant to address the merits of these complex questions. Under the NLRA and Garmon, courts must take as a given that the Board is the entity to which Congress has assigned responsibility for initially determining what happened and taking the first crack at deciding whether the NLRA protects the union’s conduct. And far from usurping that Board function, Garmon tasks the court with merely conducting a threshold, gatekeeping assessment of whether the lawsuit before it must be paused, or whether the suit can proceed because it is not even arguable that the conduct at issue in the lawsuit is protected by the NLRA.
To avoid veering into the Board’s assigned territory, it is crucial that the courts have a clear understanding of the
