Gerald A. BROWN, Regional Director of the Twentieth Region of the National Labor Relations Board, for and on behalf of The NATIONAL LABOR RELATIONS BOARD, Appellant, v. PACIFIC TELEPHONE AND TELEGRAPH COMPANY, a corporation, and Bell Telephone Company of Nevada, a corporation, Appellees, 218 F.2d 542

DENMAN, Chief Judge. The Board appeals from a judgment denying its petition for a temporary restraining order, sought under

Section 10 (

j) of the National Labor Relations Act, as amended 29 U.S.C.A. § 160(j), hereafter the Act, pending the final disposition of a ease pending before the Board, in which it is considering whether certain designated units of appellees’ employees are still appropriate units for union organization.

In the pending case the complaint charged the employers with a violation of the Act in entering into, on April 27, 1953, an agreement with the Communications Workers of America, C.I.O., hereafter CWA, a union composed of a majority of the telephone plant workers in the Northern California-Nevada area of the appellees’ area not designated by the Board as an appropriate unit of union organization.

They also refused and are still refusing to bargain with each of three units of the Order of Repeater-men and Toll Testboardmen, hereafter ORTT, — namely, the union of the Washington-Idaho area, the Oregon area and the California-Nevada area, heretofore designated by the Board as the proper units to deal with the employers.

It is obvious that if the Board’s order designating these units is still valid, ap-pellees have violated the order and that the district court erred in denying the injunction and holding it is “unable to find that there is reasonable cause to believe that a violation of the Act has occurred and for that reason the application for an injunction is denied and the petition is dismissed.” This decision in effect holds that the Board’s as yet untried complaint in the instant case does not state a cause of action in its charge that the employers refused to deal with the units of ORTT.

This although the Act provides that the determination of a charge of violation of the Act is for the Board itself to decide. It is contended that the lapse of time since the Board designated the units warrants the employer to disregard the designations. The date of the last Board certificate of the ORTT California-Nevada unit was on April 27, 1940. That for the Washington unit, November 23, 1944, and for the Oregon unit September 27, 1949. Thus the latest designation of any of these units was over four years before the contract with CWA and the refusal to bargain with ORTT.

At the hearing the Board stated, and it was not controverted, that in the instant case now before it several thousand pages of testimony have been taken and it may not be decided for some months and to this may be added the time consumed in its enforcement application to this court and the likely certiorari proceedings to follow. Two of the functions of the board regarding certifications are, first, that a proposed group of employees constitutes an appropriate unit and, second, that a majority in the unit desire it to be its bargaining agent. In respect to the appropriateness of the unit, 29 U.S.C.A. § 159(

b) and (c) (5) provide: “The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof * * * ****** “(c)

(5) In determining whether a unit is appropriate for the purposes specified in subsection (

b) of this

section the extent to which the employees have organized shall not be controlling.” The Board has nowhere held as to the unit established by it that a lapse of time warrants the employers to disregard it. In this the Board’s designation of the unit differs from its determination of the majority control of a union. As to the latter, the Board in Celanese Corp v.

United States, 95 N.L.R.B. 664, at page 672 stated that after the lapse of a year’s time the presumption as to the majority control is rebuttable, and the employer may bargain with another union if “in good faith” he doubts the majority control of the designated union. Of this the Supreme Court said in the last sentence of Brooks v. N.L.R.B., decided December 6, 1954, “Furthermore, the Board has ruled that one year after certification the employer can ask for an élection or, if he has fair doubts about the union’s continuing majority, he may refuse to bargain further with it.

This, too, is a matter appropriately determined, by the Board’s administrative authority.” (Emphasis added.) Nowhere has the Board exercised such administrative authority with respect to its designated units, a much more involved and complicated matter, here, inter alia, technological changes in telephonic instruments, than the determining of the mere number constituting a majority control of a union.

The very fact that in the instant proceeding the Board contends that the employers are not entitled to recognize any but the designated units, indicates that the Board considers the mere lapse of time and good faith of the employers in feeling a doubt as to the present validity of designations does not warrant their dealing with another union. The employers further contend that the granting or denial of such injunctive relief is within the discretion of the district court and cites our opinion in Bankers’ Utilities Co. v.

National Bank Supply Co., 9 Cir., 53 F.2d 432, at page 433, which states: “By an application for a temporary injunction, the discretion of the court is appealed to, and, unless the showing presented on undisputed facts is such as to entitle the moving party as a matter of law to the writ sought, the decision of the trial judge may not be disturbed.

That rule needs no citation of authorities to support it.” In view of the irreparable harm which the designated unions may suffer by the drifting away of their members to the union favored by the employers, we think the law entitles the Board to the injunctive relief sought. Cf. Le Baron v. Los Angeles Building & Const. Trades Council, D.C., 84 F.Supp. 629, 636, affirmed 9 Cir., 185 F.2d 405. The judgment is reversed and the district court ordered to grant the relief sought by the Board in paragraphs (a), (b), (

c) and (d), of its prayer for relief.