Brown v. Pacific Telephone and Telegraph Company

• Decision Date: 27 January 1955
• Docket Number: No. 14475.,14475.
• Citation: 218 F.2d 542
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

218 F.2d 542 (1954)

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.

No. 14475.

United States Court of Appeals, Ninth Circuit.

December 30, 1954.

As Amended on Denial of Rehearing January 27, 1955.

George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, Marcel Mallet-Prevost, Winthrop A. Johns, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Louis S. Penfield, Chief Law Officer, N.L.R.B., San Francisco, Cal., Walter N. Moldawer, Atty., N.L.R.B., Washington D. C., for appellant.

Pillsbury, Madison & Sutro, Charles F. Prael, Nathan R. Berke, Jay A. Darwin, San Francisco, Cal., for appellees.

Before DENMAN, Chief Judge, and BONE and POPE, Circuit Judges.

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 case 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 Repeatermen 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, appellees 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...