Brown

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…

(concurring).

I concur in Judge DENMAN’S opinion, but I wish to add an observation respecting the contention that although the district court did not base its decision, upon that ground, yet its denial of the temporary injunction may be sustained' upon the ground that such denial was within the discretion of that court. At the conclusion of the oral argument I was inclined to take that view. The employer contends that the wording of the March 17 order of the board refusing to authorize a consolidation of the three ORTT units, was calculated to create the impression that the board no longer recognized these as appropriate units for bargaining. So the Company says that while that order was still outstanding and before any attempt was made to amend it, it acted in good faith and in reliance thereon. It says that this circumstance plus the fact that it has agreed that it would take no further steps to alter the status existing on May 11, the date the complaint was filed before the board, warranted the court’s exercise of its discretion in the denial of the' requested injunction.

However valid this contention might, be were we dealing here with private rights in private litigation, I…