Jackson, J., dissenting
to the Board to address in the first instance.[1]
It is clear to me that Congress plainly intended for the Board’s factfinding function to be at the forefront of this kind of legal evaluation. Thus, in my view, when a court undertakes the Garmon analysis in a context such as this one, it should take care to limit itself to its own assigned responsibility: the mere determination of whether, given the union’s evidence and legal interpretation, the Board could possibly conclude that the union had taken reasonable precautions. If yes, the court should suspend the pending legal action to let the Board decide the question. To conclude no, given the fact-bound nature of the reasonable-precautions analysis, a court in all but the most exceptional circumstances will need to be able to point to a reasonable-precautions case from the Board that is on all fours with the facts of the case before it and that found the conduct unprotected. In that circumstance, the court can proceed with the suit, without breaking new legal ground on the scope of the right to strike.
In all events, then, courts can properly decide the Garmon issue without making law in this area, precisely as Congress intended. Indeed, I think we best respect congressional intent regarding the Board’s authority to develop uniform labor law by leaving the application of the Board’s reasonable-precautions principle to the Board itself. The majority’s contrary approach opens up the possibility that courts around the country will now act on bare allegations
- ↑ Justice Blackmun warned that a formulation of the Garmon test that directs attention to a party’s evidence might lead some courts to make such an errant assessment, “under the guise of weighing the sufficiency of the evidence.” Longshoremen v. Davis, 476 U. S. 380, 404 (1986) (opinion concurring in part and dissenting in part) (expressing the concern that a future court might misunderstand its role and mistakenly undertake “[to] mak[e] precisely the determination that Garmon makes clear is for the Board, and only the Board, to make”). That warning was prescient.
