". . . it appears that the Supreme Court's decision in Fibreboard was limited to a particular situation . . . ."
How later courts described this case
- ". . . it appears that the Supreme Court's decision in Fibreboard was limited to a particular situation . . . ."
- ". . . a significant or material relationship to wages, hours, or other conditions of employment"
Written by the judges who cited it.
The opinion
SOBELOFF and CRAVEN, Circuit Judges
(dissenting):
When the Board itself is divided about policy, there is an understandable temptation for judges to declare and implement it. But it is well to remember that the Board’s conclusions (even though not unanimous) may “express an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions.” Chicago, B. & Q. Ry. v. Babcock, 204 U.S. 585, 598 , 27 S.Ct. 326, 329 , 51 L.Ed. 636, 640 (1907). The Board was created for the purpose of using its judgment and its knowledge. As the Supreme Court said in Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 , 61 S.Ct. 845, 852 , 85 L.Ed. 1271, 1283 (1941), “[t]here is an area plainly covered by the language of the Act and an area no less plainly without it * * *. [C]ourts must not enter the allowable area of the Board’s discretion and must guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy.”
It seems to us that whether or not an in-plant cafeteria is a condition of employment involves the fact finding function and the policy formulating function of the Labor Board, and, with all deference to our brethren, we adhere to the majority opinion of the panel as set out in Westinghouse Elec. Corp. v. NLRB, 369 F.2d 891 (4 Cir.1966).