Jackson, J., dissenting
nature of the Garmon assessment and what it requires. The court asks, first of all, whether the party invoking Garmon has “advance[d] 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.” Davis, 476 U. S., at 395. This inquiry involves merely comparing the union’s claim about the scope of its protection to the broad protective language of the statute and deciding whether the union’s interpretation has already been definitively rejected either by courts or by the Board.
The second task is to determine whether the party invoking Garmon has “put forth enough evidence to enable the court to find that the Board reasonably could uphold a claim based on such an interpretation.” Davis, 476 U. S., at 395. Again, this is not an invitation to supplant the Board’s fact-finding role or to usurp the authority that Congress has given the Board to make the initial underlying protected-or-unprotected determination. Rather, the point of this part of the Garmon assessment is simply to determine whether it is arguable that the Board—in the exercise of its discretion to develop labor law and aided by its investigation into the facts—could conclude that the strike conduct at issue is protected by the NLRA. See 359 U. S., at 245.
Thus, consistent with a statutory scheme that gives primacy to the agency’s expertise, a court’s task under Garmon is unmistakably modest. It must merely assess whether, in light of existing law and the evidence that has been amassed related to this strike, it is possible that the union could prevail before the Board. Put another way, instead of stepping into the Board’s shoes as primary factfinder, or even prognosticating about what the Board is likely to decide concerning the extent of NLRA coverage, a court that stands down upon a proper Garmon analysis has simply determined (1) that existing law does not plainly and authoritatively prohibit the strike conduct at issue, and (2) that evidence exists concerning how the strike was conducted
