Westinghouse Electric & Manufacturing Co.

In the Matter Of WESTINGHOUSE ELECTRIC & MANUFACTURING COM- PANY AND ITS SUBSIDIARIES, WESTINGHOUSE X-RAY COMPANY, INC. AND THE BRYANT ELECTRIC COMPANY and UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF,AMERICA,AND ITS LOCALS Nos. 601, 202, 1207, 107, 111, 130, 1105, 1412, AND 209 Case No. C-1 24J.Decided March 29, 1940 Electrical Machinery and Equipment Manufacturing Industry-Interference, Restraint, and Coercion-Units Appropriate for Collective Bargainting: nine units, each limited to employees in certain classifications at one or more of respondents' plants in one community ; no dispute as to-Representatives: proof of choice : allegations of complaint as to union's majority in each unit admitted in respondents' answer ; no dispute as to-Collective Bargainiing: refusal to enter into oral or written agreements with union, although respond- ents and union reached 'accord on certain subjects ; employer's duty : Act com- pels respondents to embody in binding agreements with union understandings reached; respondents may not bargain with union concerning whether or not understandings reached shall be embodied in contracts ; grounds for refusal of : alleged economic detriment to respondents and their employees is irrelevant in so far as respondents assert it warrants refusal to make binding agreements with union ; circumstances of case, such as economic detriment from alleged boycott of respondents by another labor organization, are not such as to excuse respondents from normal requirement of Act that understandings reached must be incorporated in written agreements with union ; statement of policy under circumstances of case fail to satisfy requirement of Act for : are not contracts between respondents and union ; are at most individual contracts with individual employees, not collective agreement with union as Act re- quires; recognizes union only for purposes of negotiation and not for purposes of contnccting ; contractual nature doubtful and ambiguous ; terminable at pleasure of employer alone ; preclude union assuming responsibilities ; deny union equal status with employer as contracting and contractually bound party ; ordered to bargain with union and, if requested, to embody in written agreement with union any understandings reached-Procedure: petitions by rival labor organization requesting leave to intervene because employees in one unit allegedly changed affiliation and joined it, denied where Board had previously certified other union and where alleged shift occurred after respond- ents' refusal to bargain and after hearing in instant case. Mr. Drexel A. Sprecher, for the Board. Mr. Harold Smith and Mr. Donald C. Swatland, of New York City, for the respondents. Mr. James J. Matles and Mr. Julius Emspak, of New York City, for the United and the Locals. 22 N. L. R B,No.13. 147 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Daniel Car ,ell, of Chicago, Ill., for the Brotherhood, peti- tioner for leave to intervene. Mr. Robert Kramer, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Elec- trical, Radio and Machine Workers of America, herein called the United, and its Locals Nos. 601, 202, 1207, 107, 111, 130, 1105, 1412, and 209, herein collectively called the Locals, with the National Labor Relations Board, herein called the Board, pursuant to per- mission duly granted by an Order of the Board, dated March 31, 1939, in accordance with Article II, Section 37, of National Labor Relations Board Rules and Regulations-Series 1, as amended, the Board issued its complaint, dated August 29, 1939, against Westing- house Electric & Manufacturing Company, Pittsburgh, Pennsyl- vania, and its subsidiaries, Westinghouse X-Ray Company, Inc., Long Island City, New York, and The Bryant Electric Company, Bridgeport, Connecticut, herein collectively called the respondents, alleging that the respondents at their plants located in Bridgeport, Connecticut; Long Island City, New York; Chicago, Illinois; Emery- ville, California; Baltimore, Maryland; East Springfield, Massa- chusetts; Philadelphia, Pennsylvania; South Philadelphia, Penn- sylvania; and East Pittsburgh and Trafford, Pennsylvania, had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (5) and Sec- tion 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notices of hearing, were duly served upon the respondents, the United, and the Locals. In respect to the unfair labor practices the complaint alleged in substance that although a majority of the respondents' employees in each of nine appropriate units had designated some one of the nine Locals as their representative for the purposes of collective bargaining, the respondents, upon request, refused to bargain col- lectively with any of the Locals so designated as the exclusive representative of such employees, in that the respondents refused to enter into any written contract or any binding agreement with any of the Locals; and that by such refusals the respondents interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 149 The respondents filed an answer, dated September 6, 1939, denying that they had engaged in any unfair labor practices. Pursuant to notice, a hearing was held at New York City on September 9, 1939, before James C. Paradise, the Trial Examiner duly designated by the Board. The Board, the respondents, and the United and the Locals were represented by counsel and partici- pated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. On September 9, 1939, counsel for the Board introduced in evidence a stipulation entered into and signed by the respondents, the United, the Locals, and counsel for the Board. This stipulation provided as follows : In order to expedite the preparation and trial of this case, it is hereby stipulated and agreed, for the purpose of this case only, by and between Westinghouse Electric & Manufacturing Company (hereinafter referred to as Westinghouse), Westing- house X-Ray Company, Inc. (hereinafter referred to as West- inghouse X-Ray), the Bryant Electric Company (hereinafter referred to as Bryant Electric), United Electrical, Radio and Machine Workers of America (hereinafter referred to as the United), United's Locals Nos. 601, 202, 1207, 107, 111, 130, 1105, 1412, and 209 (said Locals hereinafter being referred to collec- tively as the Locals), and Drexel A. Sprecher, Attorney for the National Labor Relations Board, as follows: I This stipulation is to be made a part of the record in the above-entitled case and is to be received in evidence with the same force and effect as if the facts herein had been established in open hearing through the sworn testimony of competent wit- nesses, each party reserving the right to object to the admission in evidence of any of the following items, or any part thereof, on the grounds of immateriality or irrelevancy, but not other- wise. The entire agreement among the parties to this stipula- tion is contained within the terms of this stipulation, and there is no verbal agreement of any kind which varies, alters, or adds to this stipulation. II Upon charges filed by the United and amended charges filed by the United and the Locals against Westinghouse, Westing- house X-Ray and Bryant Electric, the National Labor Relations Board, hereinafter referred to as the Board, on August 29, 1939, 2 S 4 033-41-vo1 22--11 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issued its complaint, pursuant to Section 10 (b) of the National Labor Relations Act, hereinafter referred to as the Act, which complaint gave notice of hearing for September 9, 1939. III Westinghouse , Westinghouse X-Ray, Bryant Electric, the United and the Locals waive any right or privilege which they may have to ten (10) days' notice of hearing and to the holding of a hearing, and also waive any right or privilege to the issu- ance of an Intermediate Report, provided that (a) the respond- ents and the United and the Locals , respectively , are afforded an opportunity to file briefs with the Board within thirty (30) days after the effective date of this stipulation , (b) the Board issues proposed findings of fact, proposed conclusions of law, and a proposed order, and (c) said respondents and the United and the Locals, respectively, are afforded an opportunity to file exceptions to said findings, conclusions and order , and to file briefs and to participate in oral argument before the Board prior to the entry of the final decision and order of the Board. IV Westinghouse, Westinghouse X-Ray, and Bryant Electric are engaged in commerce , within the meaning of Section 2 (6) of the Act. V Negotiations with respect to rates of pay, wages, hours of employment and other conditions of employment , between Local 1207 of the United and the management of Westinghouse X-Ray were initiated in May, 1937 , and have continued from time to time since that date . During such period, as the result of such negotiations , various changes have been made by the management of Westinghouse X-Ray in such conditions of employment as indicated in general in the minutes of the June 29, 1939 , confer- ence hereinafter referred to. On February 17, 1939, a confer- ence was held between Local 1207 of the United and Westing- house X-Ray, and a copy of the minutes thereof is attached hereto and incorporated herein, labelled Exhibit A. On Febru- ary 21, 1939, a conference was held between Local 1207 of the United and Westinghouse X-Ray, and a copy of the minutes thereof is attached hereto and incorporated herein, labelled Ex- hibit B. A copy of the proposed contract submitted by Local 1207 of the United for discussion at these conferences is attached hereto and incorporated herein, labelled Exhibit C. WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 151 On June 29, 1939, a conference was held between Local 1207 of the United and Westinghouse X-Ray, and a copy of the min- utes thereof is attached hereto and incorporated herein, labelled Exhibit D. A copy of the memorandum presented in this con- ference by the representatives of Local 1207 of the United, as mentioned in that conference, is attached hereto and incorporated herein labelled Exhibit E. On June 30, 1939, a conference was held between Local 1207 of the United and Westinghouse X-Ray, and a copy of the minutes thereof is attached hereto and incor- porated herein, labelled Exhibit F. A copy of the notice men- tioned in the conferences of June 29 and 30, 1939, between Local 1207 of the United and Westinghouse X-Ray, which notice was given by the representatives of Westinghouse X-Ray to the representatives of Local 1207 at the conference of June 30, 1939, is attached hereto and incorporated herein, labelled Exhibit G. Attached hereto and incorporated herein, labelled Exhibit H, is a copy of excerpts from a complaint filed by the United against the International Brotherhood of Electrical Workers and others on June 15, 1939, in the United States District Court for the Southern District of New York which outline the various causes of such complaint relating to certain boycotts against the prod- ucts of employers in the Electrical Manufacturing Industry. Attached hereto and incorporated herein, labelled Exhibit I, is a statement of further facts concerning boycotts instituted by the International Brotherhood of Electrical Workers or its Locals. VI The paragraph next preceding and the exhibits incorporated therein constitute a full and complete statement of all of the facts on the basis of which the Board, or any court reviewing the decision and order of the Board, is to determine whether or not Westinghouse X-Ray has refused to bargain collectively with Local 1207 of the United, as alleged in paragraph 16 of the said complaint. VII The facts with respect to the alleged refusal of Westinghouse and Bryant Electric to bargain collectively, as set forth in para- graph 16 of the complaint, with the respective Locals of the United, as described in paragraph 5 of the complaint, are sub- stantially similar to the facts with respect to the alleged re- fusal of Westinghouse X-Ray to bargain collectively, as set forth in paragraph 16 of the complaint, with Local 1207 of the United, and the issue (as to the alleged refusal to bargain col- 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lectively, but not as to the conditions of employment involved) between the management of each of such plants of Westinghouse and Bryant Electric and the respective Locals of the United at such plant .is identical with such issue between the manage- ment of Westinghouse X-Ray plant and Local No. 1207. If the Board or any court reviewing the decision and order of the Board shall find that Westinghouse X-Ray has refused to bargain collectively, as set forth in paragraph 16 of the coin- plaint, with Local 1207 of the United, the Board or such court may enter all order applicable not only to the plant of West- inghouse X-Ray but also to the plants of Westinghouse and Bryant Electric concerned in this proceeding and binding not only upon Westinghouse X-Ray, in so far as the alleged refusal to bargain with Local 1207 of the United at the plant of West- inghouse X-Ray is concerned, but also upon Westinghouse and Bryant Electric, in so far as the alleged refusal to bargain with the respective Locals of the United at their said respective plants is concerned. If the Board or any such reviewing court finds that West- inghouse X-Ray has not refused to bargain collectively, as set forth in paragraph 16 of the complaint, with Local 1207 of the United, the Board or such reviewing court may enter an order dismissing the complaint as to all of the respondents. If the Board finds that Westinghouse, Westinghouse X-Ray and Bryant Electric have refused to bargain collectively, as set forth in paragraph 16 of the complaint, with the respective Locals of the United at their respective plants, as described in paragraph 5 of the complaint, and enters an order thereon, Westinghouse, Westinghouse X-Ray, Bryant Electric, the United and the Locals, or any of them, may apply to an appropriate Circuit Court of Appeals to obtain a review of such order, and the Board may petition an appropriate Circuit, Court of Appeals for an enforcement of such order. Westinghouse, Westinghouse X-Ray, Bryant Electric, the United and the Locals, and each of them, reserves all right to contest, before any such Circuit Court of Appeals, the propriety of the decision and the order of the Board. Any party to any such proceeding before a Circuit Court of Appeals may apply to the Supreme Court of the United States for a review of the decision of such Circuit Court of Appeals. Westinghouse, Westinghouse X-Ray, Bryant Electric, the United and the Locals waive all right or privilege to contest, before the Board or any reviewing court, the propriety of ex- tending any order properly entered in this case as to Westing- house X-Ray and Local 1207 of the United to the other plants WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 153 concerned in this proceeding and the respective Locals of the United at such plants, as described in paragraph 5 of the complaint. VIII This proceeding shall be heard upon a record consisting only of the complaint filed in this proceeding on August 29, 1939, the respondents' answers thereto, and this stipulation. This stip- ulation has been entered into in connection with the complaint filed in this proceeding on August 29, 1939, and this stipulation shall become null and void in the event that such complaint is amended or modified in any way or is withdrawn. IX This stipulation shall be of no force and effect until it, or a counterpart thereof, shall have been signed by each of the parties hereto listed below and interchanged between the parties hereto, and until approved by the Board, provided that if the Board shall not approve this stipulation, then the parties hereto will join in a request to the Board to continue the hearing in this cause to a date not less than thirty (30) days after notice to the respondents of the refusal of the Board to approve the same. On October 18, 1939, the Board issued an order approving the above stipulation. Thereafter, pursuant to paragraph III of the stipulation, the respondents and the United and the Locals filed briefs which the Board has considered. International Brotherhood of Electrical ,Workers, Local B-713 (A. F. of L.), hereinafter referred to as the Brotherhood, filed a petition to intervene, dated December 4, 1939, and a supplemental petition to intervene, dated December 19, 1939. For reasons here- inafter set forth,' these petitions are hereby denied. The Board issued and duly served on all parties and the Brother- hood Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, dated February 7, 1940. The respondents and the Brotherhood filed exceptions to the Proposed Findings, Conclu- sions of Law, and Order, and briefs in support of their exceptions. On March 14, 1940, pursuant to notice duly served on all parties and the Brotherhood, oral argument, in which counsel for the respond- ents and the United and the Locals participated, was had before the, Board in Washington, D. C. ' See Section V, infra 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In their exceptions the respondents included a motion to dismiss the complaint . The motion is hereby denied. The Board has considered the briefs of all the parties and of the Brotherhood and has reviewed all the exceptions filed and finds the exceptions to be without merit, except as they are consistent with the findings of fact, conclusions of law, and order set forth below. Upon the above stipulation and the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS Westinghouse Electric & Manufacturing Company, herein called Westinghouse when referred to separately, is a Pennsylvania cor- poration with its principal office and place of business at Pittsburgh, Pennsylvania . It is engaged in the manufacture , sale, and distribu- tion of a wide variety of electrical machinery and equipment and has numerous plants in various parts of the United States. The plants involved in this proceeding are located at Chicago, Illinois; Emeryville, California ; Philadelphia , Pennsylvania ; Baltimore, Maryland; East Springfield, Massachusetts ; South Philadelphia, Pennsylvania ; and East Pittsburgh and Trafford , Pennsylvania. The Bryant Electric Company, herein called Bryant when re- ferred to separately , is a Connecticut corporation with its principal office and place of business at Bridgeport, Connecticut. It is engaged in the manufacture and sale of wiring devices for buildings , appli- ances, and industry ; and plastic molded articles and novelties. It operates two plants located in Bridgeport , Connecticut, which are involved in this proceeding. Westinghouse X-Ray Company , Inc., herein called X-Ray when referred to separately , is a Delaware corporation , with its principal office and place of business at Long Island City , New York. It is engaged in the manufacture and sale of x-ray and allied apparatus for physicians, hospitals , and industrial applications . It operates a plant at Long Island City , New York, which is involved in this pro- ceeding. Both Bryant and X-Ray are wholly owned and controlled subsid- iaries of Westinghouse. Westinghouse, Bryant, and X-Ray each purchase and transport across State lines from the State of purchase into the State of man- ufacture for use in each of their plants involved , in this proceeding large quantities of raw materials and supplies , constituting a sub- stantial percentage of the total purchases of raw materials and sup- plies for use in each of these plants. Westinghouse, Bryant, and WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 155 X-Ray each sell and transport across State lines from each of their plants involved in this proceeding and from the State of manufac- ture wherein each of these plants is located into and through other States than the State of manufacture and into foreign countries large quantities of electrical machinery and equipment. constituting a substantial percentage of the total quantity of such electrical ma- chinery and equipment manufactured at each of these plants.z Westinghouse, Bryant, and X-Ray admit that they are engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The United is a labor organization affiliated with the Congress of Industrial Organizations. The Locals are labor organizations affil- iated, through the United, with the Congress of Industrial Organi- zations. The Locals admit to membership employees of the respond- ents at each of the plants involved in this proceeding, as follows : Local No. 202 admits to membership employees at the East Spring- field, Massachusetts, plant; Local No. 209 admits to membership employees at the two Bridgeport, Connecticut, plants; Local No. 1207 admits to membership employees at the Long Island City, New York, plant, Local No. 111 admits to membership employees at the Philadelphia, Pennsylvania, plant, known as the Philadelphia service shop ; Local No. 107 admits to membership employees at the South Philadelphia, Pennsylvania, plant; Local No. 601 admits to member- ship employees at the East Pittsburgh and Trafford, Pennsylvania, plants; Local No. 130 admits to membership employees at the Balti- more, Maryland, plant; Local No. 1105 admits to membership em- ployees at the Chicago, Illinois, plant, known as the Chicago service shop; and Local No. 1412 admits to membership employees at the Emeryville, California, plant. III. THE UNFAIR LABOR PRACTICES A. The refusals to bargain collectively 1. The appropriate units The answer of the respondents admits the appropriateness for the purposes of collective bargaining of each of the nine units de- scribed in the complaint. These units are normal industrial units. 2 For a detailed description of the business of Westinghouse at its East Pittsburgh, Pennsylvania, and Chicago, Illinois , plants , see, respectively , Matter of Westinghouse Electric & Manufacturing Co and United Electrical & Radio Workers of Amer., Local No. 601, 3 N. L R B. 1 ; Matter of Westinghouse Electric & Manufacturing Co. and United Electrical, Radio & Machine Workers of Amer, 10 N. L. R. B. 794. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We see no reason for departing from the units agreed to by the parties.s We find that each of the following nine groups of employees of the respondents constituted and constitutes a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of work, and that such units, set forth below, insure to employees of the respond- ents the full benefit of their rights to self-organization and to collec- tive bargaining and otherwise effectuate the policies of the Act : (1) All hourly paid employees of X-Ray at its Long Island City, New York, plant; (2) All hourly paid employees, except supervisory employees, of Bryant in the production department of its two Bridgeport, Con- necticut, plants ; (3) All hourly paid employees and the shop clerk of Westing- house at its Philadelphia, Pennsylvania, plant, known as the Phil- adelphia service shop ; (4) The production and maintenance employees of Westinghouse at its East Springfield, Massachusetts, plant, including shop clerical workers, shipping and receiving employees, tool and die makers, tool designers, test and inspection employees, repairmen, firemen and operating engineers, and truck drivers, but excluding executives, general foremen, foremen, superintendents, technical engineers, police, and main-office draftsmen and clerical workers; (5) All production and maintenance employees of Westinghouse at its Baltimore, Maryland, plant, except clerical help, and foremen and other employees in a supervisory capacity; (6) All production, maintenance, and service employees of West- inghouse at its Chicago, Illinois, plant, known as the Chicago service shop, except foremen, clerical employees, watchmen, engineers, ware- house employees, and salaried employees; (7) All employees of Westinghouse in the Insulator Department of its Emeryville, California, plant, except the office force and supervisory employees ; (8) All hourly paid employees of Westinghouse at its East Pitts- burgh, Pennsylvania, plants, including the East Pittsburgh Works, the Trafford Works, and the Homewood Service Works (including Linhart and Copper Mill), except clerical employees and supervisory employees; (9) All hourly paid employees (except the police and employees with power to discharge) of Westinghouse in the Manufacturing Department of the South Philadelphia, Pennsylvania, plant, and 3 The Board in prior decisions has found appropriate two of these units ; the one for employees at the East Pittsburgh, Pennsylvania, plants ; and the one for employees at the Chicago, Illinois , plant. See the cases cited in footnote 2, supra. WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 157 certain salaried employees of Westinghouse (eligible to vote as agreed to by two labor organizations in connection with an election held by the Board's Fourth Regional Office on June 29, 1937) in the Works, Metallurgical, Patent, and Accounting Departments of the South Philadelphia, Pennsylvania, plant. 2. Representation by some one of the nine Locals of a majority in each appropriate unit The answer of the respondents admits the allegations of the com- plaint that each of the nine Locals here involved represents a majority of employees in one and only one of the nine units we have found above to be appropriate for the purposes of collective bar- gaining. Under the circumstances of this case, we are satisfied that each of the Locals represents a majority of the employees in one, and only one, of the appropriate bargaining units., We find that each of the Locals was at all times material for the purposes of this proceeding, and is, the duly designated representa- tive of a majority of the employees in the appropriate unit set forth below after its name, and, pursuant to Section 9 (a) of the Act, was and is the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment : (1) Local No. 202: The unit hereinbefore found appropriate for employees at the East Springfield, Massachusetts, plant; (2) Local No. 209: The unit hereinbefore found appropriate for employees at the two Bridgeport, Connecticut, plants; (3) Local No. 1207: The unit hereinbefore found appropriate for employees at the Long Island City, New York, plant; (4) Local No. 111: The unit hereinbefore found appropriate for employees at the Philadelphia, Pennsylvania, plant, known as the Philadelphia service shop; (5) Local No. 107: The unit hereinbefore found appropriate for employees at the South Philadelphia, Pennsylvania, plant; (6) Local No. 601: The unit hereinbefore found appropriate for employees at the East Pittsburgh, Pennsylvania, plants; (7) Local No. 130: The unit hereinbefore found appropriate for employees at the Baltimore, Maryland, plant; (8) Local No. 1105: The unit hereinbefore found appropriate for employees at the Chicago, Illinois, plant, known as the Chicago service shop ; 4 On July 9 , 1937 , the Board certified Local No . 601 as the exclusive representative of employees in the unit liereinbefore found appropriate for the East Pittsburgh , Pennsyl- vania, plants ; and on December 23, 1938 , the Board certified Local No 1105 as the exclusive representative of employees in the unit hereinbefore found appropriate for the Chicago, Illinois, plant . See respectively the cases cited in footnote 2, supra. 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (9) Local No. 1412: The unit hereinbefore found appropriate for employees at the Emeryville, California, plant. 3. The refusals to bargain collectively Negotiations with respect to conditions of employment were in- itiated in May 1937 between Local No. 1207 and X-Ray. There- after, conferences between Local No. 1207 and X-Ray were held from time to time, including February 17 and 21 and June 29, 1939. The last such conference was held on June 30, 1939. During sub- stantially the same period, conferences were held between the re- spondents and the other Locals with respect to conditions of em- ployment. The position of the respondents during these conferences in re- spect to bargaining collectively with the Locals was as follows : 5 The respondents at all times, upon request, were willing to and did confer with representatives of the Locals. During such con- ferences the respondents stated that they recognized the Locals as exclusive bargaining representatives ; discussed with them grievances, proposed contracts, labor policies, and other subjects brought up by them; stated to them the position of the respondents on any given subject or grievance; and prepared written statements of policy, signed by the respondents, summarizing the position of the respond- ents on the matters discussed. These statements of policy were posted by the respondents in their plants; stated that the respondents recognized the Locals as exclusive bargaining representatives; and stated that the position of the respondents therein set forth had been reached after negotiations and discussions with the Locals' repre- sentatives, and would be in effect until further notice. In fact, these statements of policy did reflect changes in conditions of employment made by the respondents as a result of their negotiations and con- ferences with the Locals. The respondents would not bind them- selves to keep the policies set forth in these statements in effect for any definite period of time ; and, although the respondents asserted that they would always attempt to give the Locals "reasonable no- tice" before changing the policies contained in these statements, the respondents reserved to themselves the right to decide what con- stituted "reasonable notice" under the circumstances. The respond- ents would not permit the Locals, the United, or representatives of either the Locals or the United, to sign these statements of policy. 6 Our findings in regard to the respondents ' position are based upon the negotiations between Local No. 1207 of the United and the respondents at the Long Island City plant of X-Ray . However, in accordance with paragraph VII of the stipulation, we make our findings applicable to all the plants of the respondents here involved , since the facts with respect to tha negotiations at the Long Island City plant aie substantially similar to the facts with respect to the negotiations between the Locals and the respondents at all the other plants here involved. WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 159 In fact, the respondents would not enter into any sort of a binding agreement or contract, written or oral, with the Locals or the United, althought the respondents and the Locals reached an accord on the terms to be embodied in such an agreement or contract. ° The re- spondents, however, were willing to negotiate with the Locals con- cerning the desirability of, and necessity for, a written or oral agree- ment and asserted that subsequently, because of such negotiations, they might alter their policy of -refusing to enter into any binding agreement with the Locals. ' 6 Subsequent to these negotiations and conferences, the respondents for the first time, in briefs filed with the Board , asserted that their statements of policy are binding written agreements with the Locals Whether such statements of policy constitute contracts with the Locals, and, if not, whether they are enforceable against the respondents by the individual employees and satisfy the requirements of Section 8 (5) of the Act , are herein- after discussed. The statement of policy for the Long Island City plant of X-ray read as follows WESTINGHOUSE X-RAY COMPANY, INC NOTICE JUNE 30, 1939. After negotiations and discussions with the Negotiating Committee of Local #1207 of the United Electrical Radio and Machine Workers of America , consisting of Messrs. Matthews , Abbondi, Kaiser , and Subach, representing the employees , the Management of the Westinghouse X-Ray Company, Inc., states that until further notice its position is as follows on the following points 1. That in accordance with notification received from the National Labor Relations Board of May 11, 1937, the United Electrical Radio & Machine Workers of Ameiica includes in its membership more than a majority of our employees and in compliance with the National Labor Relations Act, the Westinghouse X-Ray Company recognizes Local No. 1207, United Electrical Radio & Machine Workers of America as the sole agency for the purpose of collective bargaining and establishment of the standards and hours of labor, rates of pay, and other conditions under which the check employees shall work for the employer. In order to amplify this , we quote Section 9, Paragraph (a) of the National Labor Relations Act : "Representatives designated or selected for the purposes of collective bar- gaining by the majority of the employees in a unit appropriate for such pur- poses, shall be the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment , or other conditions of employment : PROVIDED, that any Individual employee or a group of employees shall have the right at any time to present grievances to their employer." 2. Effective November 1, 1937, a bonus of 10 % above the regular day rate will be paid to all regular nighttime employees 3. Employees who are requested to report for work shall be guaranteed at least four hours pay 4. That, in general , wage rates [sic] be paid equal to or higher than wages rates paid in the industry for comparable work requiring the same skill and efficiency. That rates in the Industry shall govern where community rates are lower and community rates shall govern where industry rates are lower. 5. The Committee advises that the Shop Stewards are elected by the members of Local No. 1207, United Electrical Radio & Machine Workers of America, to represent the first and second floors , respectively 6 (a) That an employee who Is to be dismissed or laid off for lack of work or inefficiency would be given twenty-four hours' notice (b) That the Union shall reserve the right to question and investigate any dismissal or layoff. 7. That when check employees are requested to work overtime , at least two hours' advance notice will be given and the employees will be allowed the use of the telephone to notify their homes. This does not, however , bar shorter notice if the employee is willing to work. 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondents argue that on the basis of the facts summarized in the paragraph above they have bargained collectively with the Locals, within the meaning of Section 8 (5) of the Act. In support of this position, the respondents advance several contentions which we now consider. The respondents assert in their briefs that, assuming that the Act requires that the terms and conditions of employment upon which an employer and the exclusive representative of his employees have reached an accord or understanding be embodied in binding written contracts, their statements of policy, signed only by the respondents, are binding written contracts between the respondents and the Locals, enforceable against the respondents. It is plain from the statements of policy themselves and from the negotiations that neither the respondents nor the Locals regarded themselves as in contractual relations with the other. In form these statements of policy are merely announcements to the employees of the respondents' position and do not purport to be contracts. Moreover, in delivering the statements to the Locals, the respondents stated : "This [the state- ment] we consider a statement of the Company's position and it is not an agreement." 8 And in discussing previous oral and written statements of policy, some of which were posted by the respondents and signed by them, the respondents denied that these were agree- ments with either the Locals or the employees, stating : "That [the notice] is not an agreement I . . . this notice gave the position of the 8. All work performed on Saturday and holidays , or work done in excess of our standard week, which is eight hours a day and five days a week , shall be time and one-half, and the work performed on Sundays , double time will be paid. 9. That semi-annual reviews of rates and occupations be conducted by a joint com- mittee of the U. F R. & M . W A. and the Company, on March 1 and Septem- ber 1. A progressive scheme of development to be observed . All check employees 10 to come under the review. Seniority-In all cases of increase or decrease of forces , the following factors shall be considered , and where factors A ., B, and C. are relatively equal, length of time and service shall govern : A B. C. Length of time. Knowledge , training, ability, skill, and efficiency. Family status, number of dependents, etc. 11. A 63¢ minimum hourly rate shall be paid for mechanics-helpers, learners , appren- 12. tices, store-room attendants , and potters to be paid according to classification. Holidays and Vacations- (a) Holidays will be New Year's Day, Washington's Birthday, Decoration Day, Independence Day, Labor Day, Armistice Day, Thanksgiving Day, and Christmas (b) The Company will grant one week's vacation with pay to employees with five years' service and two weeks' vacation with pay to employees with ten years' service. (c) Vacations will be paid on the average hourly earnings of the employee during the preceding three ( 3) months, and will be based upon the number of hours in the standard work week. (Signed ) L. D. CANFIaLD, Vice President and General Manager. B Italics supplied Italics supplied. WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL . 161 Management in connection with certain terms and conditions of em- ployment . . . we . . . never regarded it as reaching an agreement verbal or otherwise. It was a statement of our position." In fact, when asked if they regarded a former notice as an agreement with the employees, the respondents answered : "No we do not, but we regard it as a notice stating our position on certain subjects." The respondents also stated : "We never considered this as reaching an agreement, verbal or otherwise . . . The Management does not re- gard this notice as the equivalent of a formal written contract .. . I do not consider it as an agreement . . . I have never considered that we had an agreement. I have always considered that it was a, statement of the position of the Management of the Company." When the Locals' representatives pointed out that the points being discussed had been "agreed upon" by inclusion in a statement of policy, the respondents answered : "We had made no agreement, but have endeavored at all times to state the Company's position in connection with various subjects." That the respondents did not consider their statements of policy as binding agreements is also shown by the fact that the respondents included in these statements several matters which the respondents during the conferences in- sisted were not proper subjects for inclusion in any agreement, although expressing a willingness at all times to include them in a statement of policy. Indeed, the respondents' refusal to permit the Locals to sign the statements of policy and the respondents' in- sistence during the negotiations upon the statements of policy rather than agreements with the Locals are proof that the respondents recognized an important difference in the legal effect of the two types of documents. Finally, during the negotiations, the respondents summarized their attitude as follows: "The policy of the Company is not to make or sign an agreement l° but bargain. collectively and if, after such bar- gaining, it is found within the Company's policy or within the thought of the Company to change the policy, they will do so." The respondents further stated : "We will not enter into any agree- ment." 11 When asked if this prohibition applied to both oral and written agreements, the respondents answered : "It specifies any agreement with any organization." And when a United representa- tive inquired, "Is it the Company's policy not to reach an agreement on any subject which the Negotiating Committee [of the Local] brings in for discussion?," the respondents replied : "Yes. But the Company is always willing to state its position in writing with reference to such subjects." 10 Italics supplied 11 Italics supplied. 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the above facts we find that: (1) the respondents' state- ments of policy are not binding contracts between the respondents and the Locals; (2) the respondents, as they repeatedly and unqual- ifiedly told the Locals, during the negotiations and at the time of signing and delivering the statements of policy, did not consider the statements of policy contracts of any kind or binding upon the re- spondents; (3) as shown by the identity of many of the terms in the statements of policy,'which were acceptable to the respondents, with those in the contracts proposed by the Locals, the respondents and the Locals reached an accord on many subjects of collective bar- gaining; and (4) the respondents, professing a willingness possi- bly to modify their attitude at some future date, have adopted a policy of refusing to enter into binding agreements with the Locals, and have at all times, in accordance with this fixed resolve, refused to enter into such agreements. The respondents further contend that by refusing to enter into binding agreements with the Locals, as we have hereinbefore found, they have not refused to bargain collectively, for the reason that the Act does not compel an employer to enter into any binding" agree- ment, written or oral, with the exclusive representatives of his em- ployees, even though the employer has reached an accord or under- standing with such representatives concerning terms and conditions of employment and the representatives have requested him to em- body the understanding in a mutually binding agreement of some sort. This contention was raised in Matter of St. Joseph' Stockyards Company 12 and we rejected it, finding that the employer in that case had engaged in unfair labor practices within the meaning of Section 8 (5) of the Act by refusing to embody understandings in any kind of a binding agreement with the union. In our decision in that case we said : An assertion that collective bargaining connotes no more than discussions designed to clarify employer policy and does not in- clude negotiation looking toward the adoption of a binding agreement between employer and employees is contrary to any realistic view of labor relations. The development of those re- lations had progressed too far when the Act was adopted to permit the conclusion that the Congress intended to safeguard only the barren right of discussion.13 The protection to organi- u Matter of St Joseph Stockyards Co and Amat Meat Cutters and Butcher Workmen of N Amer , Local Union No 159, 2 N L R B 39. ]J Elsewhere in our decision in the St Joseph case, we reviewed the relevant precedents in the decisions of the old National Labor Relations Board , which administered Section 7 (a) of the National Industrial Recovery Act We cited the decisions of the old Board in the I7oude Enptineerinq Corporation (1 N. L R B [old ] 35) and National Aniline <f Chemical Company ( 1 N L R B [old ] 114) cases, as well as in other cases, determining that "collective bargaining" as used in Section 7 (a), which guaranteed to employees "the WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 163 zation of employees afforded by the first four subdivisions of Section 8 can have meaning only when the ultimate goal is viewed as the stabilization of working conditions through gen- uine bargaining and agrements between equals. That such is the goal is made clear by Section 1 of the Act, wherein the policy of the United States is stated to be the protection of self-organi- zation of workers and the designation of their representatives for the purpose of negotiating the terms and conditions of their employment. With respect to the attitude of employers who refuse to enter into binding agreements with unions, we said : The solution of the problem lies in the recognition of that attitude. Such an attitude grows out of an antipathy toward organization of workers and a refusal to concede that the policy of the United States shall be the policy of the respondent. It is designed to thwart,and slowly stifle the Union by denying to it the fruits of achievement. It is based upon the knowledge that in time employees will grow weary of an organization which cannot point to benefits that are openly credited to its aggressive- ness and vigilance and not to an employer's benevolence which on the surface may appear genuine but in truth is forced upon the employer by the organization. To many his unwillingness to enter into an agreement with a labor organization may seem no more than a harmless palliative for the employer's pride and to amount only to a petty refusal to concede an unimportant point purely as a face-saving device. But the frequency with which the old Board was compelled to denounce such a policy on the part of employers indicates its potency as a device subtly calculated to lead to disintegration of an employee organization. Viewed from the other side, the main objective of organized labor for long has been the collective agreement and the history of organization and collective bargaining may be written in terms of the constant striving for union recognition through right to organise and bargain collectively through representatives of their own choosing,' meant a process of negotiations looking toward the making of agreements and required the employer , upon request. to embody any understandings in a binding agreement with the union We fuithei pointed out that the similarity in wording of the present Act and Section 7 (a) indicated clearly that the Congress in Sections 7 and 8 ( 5) of the Act intended the language there used to carry the same obligation as Section 7 (a). We found that the Reports of the Congressional Committees on the Act supported this inter- pretation The House Report (House Report of Committee on Labor, 74th Cong, 1st Sess, Rep No 1147 , at p 20 ) we pointed out, speaks of Section 8 (5) as designed to "encourage collective bargaining and the making of agreements," and states that collective bargaining is but a means to an end , the end being "the making of collective agreements stabilizing employment relations " The Senate Report ( Senate Repoit of Comnattee on Education and I abor 74th Cong , 1st Sess , Rep No 573, at p 13). Nie noted. states • "The object of collective baigainng is the making of agreements that will stabilize business conditions and fix fair standards of working conditions " 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement. In many cases employees have left their employ- ment and struck solely because of the employer's refusal to enter into a collective agreement. An objective which has been so bitterly contested by employer and employee, that has been the cause of many long and costly strikes, must be evaluated in the light of the conflict it has produced . . . In our view of the Act, the minds of the parties having met, it imposed upon the respondent a definite obligation to embody the understand- ing in an agreement. We have reaffirmed this interpretation of the Act in all subsequent cases involving this question, 14 and reviewing courts have indicated their accord. 15 14 Matter of The Louisville Refining Co. and Int Ass'n, Oil Field, Gas Well and Refinery 11"orl eis of Amer , 4 N. L R . B 844, enf'd , as modified as to other issues, N. L R. B v The Louisville Refinery Co, 102 F. (2d) 678 (C C. A. 6, 1939), cert. den 308 U S 568; Matter of Federal Carton Corp and New York Printing Pressmen's Union No. 51, 5 N. L R. B. 879; Matter of Globe Cotton Mills and Textile Workers Organ. Comm, 6 N. L. R. B 461, enf'd, as modified as to other issues, Globe Cotton Mills v N. L. R. B, 103 F ( 2d) 91 (C C. A 5, 1939 ) ; Matter of Sunshine Mining Co and Int Union of Mine, Mill, and Smelter Workers, 7 N L. R B. 1252; Matter of Harnischfeger Corp. and Amal. Ass'n of Iron, Steel & Tin Workers of N. Amer, 9 N L. R B 676; Matter of Inland Steel Co and Steel Workers Organ Comm , 9 N L R B 783 ; Matter of Western Felt Works and Textile Workers Organ . Comm., 10 N. L It . B. 407, Matter of American Numbering Machine Co. and Int Ass'n of Machinists, District #15, 10 N L R B 536; Matter of H. J. Heinz Co . and Cannery and Pickle Workers , Local Union No. 825, 10 N. L. It. B. 963; Matter of Sigmund Freisinger and Textile Workers Organ Comm , 10 N L. It. B 1013; Matter of Bethlehem Shipbuilding Corp. and Industrial Union of Marine and Shipbuilding Workers of Amer, Local No 5, 11 N L It. B 105 ; Matter of Chesapeake Shoe Manufacturing Co. and United Shoe Workers of Amer., 12 N. L. R B 832 ; Matter of Harry Schwartz Yarn Co , Inc. and Textile Workers Organ Comm , 12 N L . R B 1139 ; Matter of Highland Park Manufacturing Co. and Textile Workers Organ Comm , 12 N L. R B 1238, enf' d, N L. R. B. v Highland Park Manufacturing Co, C C A. 4, March 11, 1940; Matter of Art Metal Construction Co and Int Assn of Machinists, Local 1559, 12 N. L. R B 1307, enf'd as modified as to other issues , Art Metals Construction Co v. N L R. B., 110 F. (2d) 148 (C. C A 2) ; Matter of Nathan Chester and Novelty Mirror Workers' Union, Local No. 7, 13 N L. It. B 1; Mutter of Holston Manu facturing Co and American Federation of Hosiery Workers, 13 N L R B 783 ; Matter of Aronsson Printing Co and Detroit Printing Pressmen's and Assistants' Union, No 2, 13 N L R B 799; Matter of Fort Wayne Corrugated Paper Co and Local No. 182, Int Brotherhood of Pulp, Sulphite, and Paper Mill Workcrs , 14 N L R B 1; Matter of Dallas Cartage Co. and Int'l Brotherhood of Teamsters, Chauffeurs, Stablemen, & Helpers of Amer , Local 745, 14 N L R B . 411; Matter of Stewart Die Casting Corp and United Automobile Woikers of Amer , Local 298, 14 N . L R B 872 ; Matter of Independent Pneumatic Tool Co . and Steel Workeis Organ Comm , 15 N. L R B 106 , Matter of Blanton Co and United Oleomargarine Workers Local Industrial Union No 1,89, 16 N L R B 951; Matter of Gulf Public Service Co and Inter Brotherhood of Electrical Workers, Local 790, 18 N. L R B 562; Matter of Theurer Wagon Woiks, Inc. and Inter Union United Automobile Workers of Amer., 18 N L R . B 837; Matter of Amer. Hair and Felt Co. and Textile Workers Union of Amer , Local No 9, 19 N L R B 202, Matter of National Motor Rebuilding Corp and Inter Assn of Machinists, District No 15, 19 N L. R B . 503; Matter of Wilson and Co and United Packinghouse Workers, 19 N. L R B 990; Matter of Pittsburgh Metallurgical Co, Iiic and Local 12077 Gas and By-Products Coke and Chemical Workers Union, 20 N L. , R B. 1077 16 In N. L. R. B v. Highland Park Manufacturing Co., C. C. A 4, March 11, 1940, footnote 14, supra, the Court said : The requirement to bargain collectively is not satisfied by mere discussion of grievances with employees ' representatives It contemplates the making of agree- ments between employer and employee which will serve as a working basis for the carrying on of the relationship . The act, it is true , does not require that the parties WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 165 We conclude that the Act requires that the respondents, upon request, embody in binding agreements with the Locals as the ex- clusive representatives of the employees, any understandings reached during the negotiations between the respondents and the Local. Our conclusion above also disposes of two other contentions of the respondents which are in effect corollaries of its primary contention discussed above. The first of these corollary contentions is that the respondents have been and are willing to bargain with the Locals concerning whether or not the understandings reached shall be embodied in a binding agreement and that the Act requires no more than this of the respondents. This contention has validity only if the embodiment in a binding agreement of understandings reached is a subject matter for negotiations, in other words, a matter which the respondents could refuse to grant in consonance with their obli- gation under the Act to bargain collectively. As pointed out above, the embodiment in a binding agreement of understandings reached is an essential element of the statutory duty, does not in any way depend on the respondents' views or good faith, and is, therefore, not a subject matter for negotiation. In the St. Joseph, case 16 we definitively set forth the distinction between this element of the statu- tory obligation and those aspects of the obligation which relate to the negotiations of the terms and conditions of employment con- cerning which the employer must negotiate in good faith in an en- agree; but it does require that they negotiate in good faith with the view of reaching an agreement if possible ; and mere discussion with the representatives of employees, with a fixed resolve on the part of the employer not to enter into any agreement with them , even as to matters as to which there is no disagreement , does not satisfy its provisions . .'. And that Congress contemplated that collective bargaining should be pursued with the end and aim of arriving at trade agreements , so important to giving labor a proper voice in industry , does not admit of doubt . . In Globe Cotton Mills v. N. L R B, 103 F, (2nd ) 91 (C C. A 5, 1939 ), footnote 14, supra, the court stated : ". . . there is a duty on both sides ... to enter into discussion with an open and fair mind , and a sincere purpose to find a basis of agreement touching wages and horns and conditions of labor, and if found to embody it in a contract as specific as possible , which shall stand out as a mutual guarantee of conduct , and as a guide for the adjustment of grievances " In Consolidated Edison Co . v. N. L R. B., 305 U. S. 197 ( 1938 ), the United States Supreme Court said: "The Act contemplates the making of contracts with labor organizations . That is the manifest objective in providing for collective bargaining " And, in the same case , Mr Justice Reed, concurring in part and dissenting in part, said : "It is agreed that the 'fundamental purpose of the Act is to protect interstate and foreign commerce from interruptions and obstructions caused by industrial strife.' This is to be accomplished by contracts with labor organizations , reached through collective bargaining " Similarly, in N L R B. v The Sands Manufacturing Co , 306 U S . 332 (1939), the United States Supreme Court observed that • "The legislative history of the Act goes far to indicate that the purpose of the statute was to compel employers to bargain collectively with their employees to the end that employment con- tracts binding on both parties should be made." Cf. N L R B. v. Griswold Mfg Co, 106 F ( 2d) 71 3 , 723 (C C A 3, 1939 ) ; Ai t Metals Construction Co v. N L, R B., 110 F (2d) 148 , C C A. 2. The United States Circuit Court of Appeals for the Seventh Circuit has reached a contrary conclusion Inland Steel Co v N L R B 109 F (2d) A (C. C. A. 7). 16 Footnote 12, supra 283033-41-vol 22--12 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deavor to reach an understanding. In our decision in that case, we said : . . . an employer is not required to sign the specific agree- ment presented to him by representives of his employees. Nor is he obligated to agree to any of their demands solely for the sake of reaching some agreement when genuine accord is im- possible although both sides are acting in good faith. But the line between these privileged areas and the duties imposed by the Act is distinct; the employer must negotiate in good faith in an endeavor to reach an understanding, and that understand- ing if eventually achieved must be incorporated into an agree- ment if the representatives of the employees so request.'7 The second corollary contention of the respondents is that they are not required under the Act to enter into binding agreements with the Locals, if such agreements in the opinion of the respondents, or for various reasons, would be detrimental to the interests of the respondents and of their employees. The respondents assert that the making of binding agreements with the Locals would intensify a boycott, already in effect; instigated by another labor organiza- tion against the respondents' products, and would thus decrease the respondents' business and the work available for employees. The respondents further assert that such agreements would deprive the respondents of the flexibility they deem necessary for the proper operation of their business; would not be able to cover all the prob- lems arising out of the employment relationship, and would cause disputes concerning interpretation. This contention and supporting assertions are irrelevant, since the respondents cannot avoid the man- date of the statute by asserting their belief, or introducing support- ing evidence, that compliance with Section 8 (5) of the Act would result in economic loss or other detriment, of the kind here asserted, to the respondents or their employees- 's Business exigencies may render difficult the process of arriving at an understanding satis- factory to both parties, and may account for their inability, though acting in entire good faith, to reach any agreement either as to 17 For a similar holding, see Matter of Inland Steel Co and Steel Workers Oi gait. Comm., 9 N L R B 783. 'AN. L. R B. V Star Publishing Co, 97 F (2c1) 465 (C C. A 9, 1938) ; Matter o/ Simmons Co. and Steel Workers Organ Conan, 6 N L R B 208 ; Matter of Jacob A Hunkele and Local No 1,0, United Laundry Workers Union, 7 N L. R B 1276, Matter of Arcade-Sunshine Co, Inc and Laundry IVoike,s Cleaners & Dyors Union, 12 N L R. B. 259, Matter of Trawler Marts Stella, Inc and American Communications Assn, 12 N. L R B 415; Matter of Phelps Dodge Corp and Ame)tcan Federation of Labor, 15 N. L R. B 732 , Matter of Electric Vacuum Cleaner Co , Inc. and United Elect, teal C Radio Workers of America. Local 720, 18 N L R B 591 , Matter of West Oiegon Lumber Co and Lumber and Sawmill Woikcis Local Union No 1, 20 N L R B 1, Matter of Pittsburgh Metallurgical Co, Inc and Local 1207"7, Gas and By-Products Cole and Chemical Workers Union, 20 N L R B 1077 WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 167 terms and conditions of employment or as to the duration of terms and conditions agreed upon. On the other hand, as we have held, such factors as changing and uncertain business conditions,19 or the competitive nature of an employer's business'20 do not afford any justification for failure to seek to arrive at an understanding, or to embody such an understanding, if reached, in a contract binding upon both parties. The requirements and policies of the Act are paramount and the judgment of the parties must yield to that of the Congress. The next contention of the respondents is that under the circum- stances of this case they could, in consonance with their duty under the Act, decline to embody understandings in written agreements. The statements of the respondents' agents during their negotiations with the Locals indicate that the respondents objected primarily to entering into binding agreements with the Locals, rather than to the reduction to writing of any contracts, as is shown by the fact that the respondents were willing to and did present their statements of policy in writing. We shall, however, consider this contention of the respondents which is predicated upon certain language in our de- cision in Matter of Inland Steel Company.21 In that case we held that the Act required an employer normally, upon request, to embody understandings in,a written agreement signed by him and the em- ployees' representatives, but we left open the question whether un- der certain. circumstances an employer, under the Act, might re- fuse to`embody understandings in such a written contract 22 In all subsequent cases, we have reaffirmed this interpretation of the Act.23 19 Matter of Holston Manufacturing Co and American Federation of Hosiery Workers, 13 N L R B 783 20 Matter of Harbor Boat Building Co and Ship Carpenters Local Union No. 1335, 1 N. L. R. B 349; Matter of Harry Schwartz Yarn Co., Inc and Textile Workers. Organ, Comm , 12 N L R B 1139 ; Matter of Amei loan Range Lines , Inc and Marine Engineers' Beneficial Ass'n, 13 N L R B 139; Matter of George P Pilling d Son Co and Dental. Surgical .C Allied Workers Local Industrial Union No . 119, 16 N L R B 650 21Matfer of'Inland Steel Co and' Steel Workers Organ Comm , 9 N. L. R. B. 783 22 In the Inland case we said : ". . . we hold that under the circumstances such as are pi esented here, it is the employer's obligation to accede to a request that understandings reached be embodied in a signed agreement The present controversy is projected on the background of a long struggle of labor organizations to attain full recognition of their right to recognition as collective bargaining agencies with a dignity equal to that of the employers with whom they deal We take judicial notice of the fact that today thousands of employers have accorded unions their right to normal contractual relationships, and that , as shown by the record , the signed collective bargaining agreement is the prevailing practice From the viewpoint of harmonious and coopeiative labor relations , as well as of sensible business practice, the importance of embodying understandings in signed agiee- ments is obvious . Whether there may be. in some future case , circumstances indicating that the employer there involved may under the Act decline to embody understandings in a signed agreement , we need not here decide " 23 Matter of Western Felt Works and Textile Workers Organ Comm , 10 N L R B 407; Matter of H J Heinz Co and Cannery and Pickle Workeis, Local Union No 325, 10 N_ L. R B 963: Matter of Sigmund Fveisi-nger and Textile Workers Organ . Conim, 10 N L R B 1042 : Matter of Bethlehem Shipbuilding Corp and Industrial Union of Marine and Shipbuilding Workers of Amer, Local No, 5, 11 N L R . B 105 , Matter of Chesapeake Shoe Manufacturing Co. and United Shoe Workers of Amer , 12 N L R B 832 . Matter 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We now consider the circumstances in this case which, the respon- dents maintain, keep their refusals to embody understandings in written agreements with the Locals from being an unfair labor prac- tice within the meaning of the Act. The respondents state that they believe that the making of written agreements with the Locals would intensify a boycott against the respondents' products, instigated by another labor organization, the International Brotherhood of Electrical Workers, hereinafter called the Brotherhood. The respondents also urge that written agree- ments would deprive the respondents of the flexibility required for the proper management of their business, would be inadequate to of Hairy Schwartz Yarn Co., Inc and Textile Workers Organ. Comm, 12 N. L. R B 1139; Matter of Highland Park Manufacturing Co and Textile Workers Organ. Comm., 12 N L R B 1238, enf'd , N. L. R. B. v. Highland Park Manufacturing Co, C. C. A. 4, March 11, 1940; Matter of Art Metal Construction Co. and Int Assn of Machinists, Local 1559, 12 N L R. B. 1307, enf'd as modified as to other issues, Art Metals Construction Co. v. N. L. R. B., C. C. A. 2, Feb . 26, 1940; Matter of Holston Manufacturing Co. and Ameri- can Federation of Hosiery Workers, 13 N L. R. B. 783 ; Mattel of Aronsson Printing Co and Detroit Printing Pressmen's and Assistants' Union No 2, 13 N. L R B 799; Matter of Fort Wayne Corrugated Paper Co . and Local No 182, Int. Brotherhood of Pulp, Sulphite, and Paper Mill Won kers, 14 N L R B 1; Matter of Stewart Die Casting Corp. and United Automobile Workers of Amer., Local 298, 14 N. L. R. B 872; Matter of Independent Pneumatic Tool Co and Steel Workers Organ. Comm , 15 N. L R B 106; Matter of Blanton Co and Oleomargarine Workers Local Industiial Union No 489, 16 N. L R. B. 951; Matter of Hartsell Mills Co and Textile Workers Organ. Comm, 14 N L R B. 268; Matter of Gulf Public Service Co and Inter Brotherhood of Electrical Workers, Local 750, 18 N L R. B 562; Matter of Theurer Wagon Works, Inc and Inter Union, United Automobile Workers of Amer, 18 N. L. R B. 837; Matter of Wilson and Co and United Packinghouse Workers , 19 N L. R. 13. 990. In the Art Metals Construction Co. case, supra, the court, finding that a refusal to embody an oral agreement in a written contract was a refusal to bargain collectively said : "It is indeed true, and for that matter a truism , that a stipulation in an oral contract that it shall be put into writing is one of its terms , and that if an employer must put it in, he is not free pro tanto But he is no longer wholly free anyway; before the act he was not obliged to bargain with his employees collectively ; he was at liberty to refuse to negotiate with them at all , or otherwise than severally The act Impaired that freedom; it meant to give to the employees whatever advantage they would get from collective pressure' upon their employer ; and the question here is what are the fair implications of that grant They should include whatever is reasonably appropriate to protect it, and no one can dispute that a permanent memorial of any negotiation which results in a bargain , is not only appropriate , but practically necessary , to its preservation ; it is hardly necessary to observe that without It the fruits of the privilege are exposed to the sport of fugitive and biased recollection. The purpose of a contract is to define the promised performance , so that when it becomes due, the parties may know the extent to which the promisor is bound ; and It is the merest casuistry to argue that the promisor 's freedom to contract includes the opportunity to put in jeopardy the ascertainment of what he has agreed to do, or indeed whether he has agreed to anything at all . The freedom reserved to the employer is freedom to iefuse concessions in working conditions to his employees, and to exact concessions from them ; it is not the freedom , once they have in fact agreed upon these conditions , to compromise the value of the whole proceeding , and probably make it nugatory " In the Highland Park Mfg Co case, supra, the court said : "Respondent's repeated declaration that it would sign no written agreement with the union is a pertinent circumstance for consideration on the issue of refusal to bargain . It is argued that since no agreement was reached between respondent and the union there was nothing to put in writing ; but the attitude of respondent towards signing a written contract was of a piece with its refusal , as found , to make even an oral agreement regarding matters as to which there was no real disagreement Both arose out of a determination not to enter into real collective bargaining with the union. If some valid reason had been advanced for unwilling- ness to reduce agreements to writing, this conclusion would not necessarily follow ; but in the absence of explanation , it clearly indicates respondent 's hostility to the whole process of collective bargaining " WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 169 cover all questions which arise out of the relations between the re- spondents and their employees, and would cause disputes between the respondents and their employees. The objections of the respondents to written agreements with the Locals appear to be equally applicable, in large part, to their signed statements of policy. Moreover, 50 per cent of the respondents' com- petitors, including their largest competitor, General Electric Com- pany, have entered into written agreements with the United. The circumstances advanced by the respondents as reasons for not mak- ing written agreements with the Locals appear to be present in the case of these competitors. The fact that these competitors have entered into written agreements with the United despite these cir- cumstances and the fact that the respondents have issued the state- ments of policy are strong indications that such circumstances do not justify the respondents' refusal to embody understandings reached in written agreements signed by the respondents and the Locals. The Brotherhood's boycott has been in effect against the respond- ents' products since 1935, despite the fact that the respondents have not entered into binding agreements, oral or written, with any of the Locals. The boycott is also in effect against other employers, who have not entered into agreements with the Brotherhood, irrespective of whether or not their employees are organized by, or covered by a a contract with, it labor organization other than the Brotherhood. The bill of complaint in a suit instituted in 1939 by the United against the Brotherhood indicates that the boycott is designed to prevent any collective bargaining whatsoever between employers and the United, and is not aimed primarily or solely at the entering into of binding agreements or written agreements between! employers' and the United. We find that the boycott thus far has had no relation either to the making of any binding agreements or to the making of written agreements between employers and labor organizations other than the Brotherhood. We also find that the evidence fails to establish that the boycott will be materially affected by the making of written rather than oral agreements with the Locals. 24 The other circumstances referred to by the respondents are not such as to justify their refusals to enter into written agreements with the Locals. The statements of policy which the respondents have issued cover no more subjects than written contracts, and are as likely to cause disputes between the respondents and their employees. Moreover, as we have pointed out elsewhere, 25 a written agreement 24 See footnote 26, infra 2e In the Inland Steel case, footnote 21, supra, we said : "We take judicial notice of the fact, which is also shown by the record , that in circumstances like those here Involved- when the bargaining is directed toward a comprehensive set of terms covering labor rela- tions in a large industrial plant-the prevailing practice is reduction of such terms to a signed collective agreement . . . the difficulties inherent in an oral agreement In a situa- 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is capable of covering more questions than an oral one, is less likely to cause disputes between employers and employees, and may be as flexible as an oral one. We find that under the circumstances of the present case, Section 8 (5) of the Act requires the respondents, upon request, to enter into, written agreements, signed by the respondents and the Locals, embodying any understandings reached .211 As hereinbefore pointed out, the respondents' contention that their statements of policy are binding agreements with the Locals cannot be upheld. The question remains whether such statements of policy, signed only by respondents, may not be binding written contracts with the individual employees, enforceable by them against the respondents, and if so, whether such contracts satisfy the require- ments of the Act in regard to embodying understandings reached in binding written agreements. Assuming, arguendo, that, as asserted in the respondents' briefs, the statements of policy in some sense constitute agreements or create legally enforceable rights in the employees against the respondents, we are of the opinion that these statements of policy are not the kind of agreements required by the Act to achieve its purposes and policies. The fundamental aim of the Act is the elimination of cer- tain substantial obstructions to the free flow of commerce by remov- ing what the Congress deemed to be two of the primary causes of industrial unrest, strife, and instability-namely, the refusal of em- ployers to accept the procedure of collective bargaining and the inequality of bargaining power between employers and employees. To achieve this end, the Act is designed both to encourage "the practice and procedure of collective bargaining" and to protect "the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection." 27 tion of this sort are manifest An attempt to rely on memory alone would undoubtedly pave the way for prolonged haggling over what actually was agreed to .. In insisting on a signed agreement , the S. W. O. C. was merely asking what any prudent businessman would expect as a matter of course from those with whom he deals . . . From the standpoint of harmonious and cooperative labor relations , as well as of sensible business practice, the importance of embodying understandings in signed agreements is obvious . . . To say that there is something impracticable about a signed collective bargaining agreement with a large steel manufacturing concern, justifying an exception from the general practice, would be to shut our eyes to facts of common knowledge concerning recent labor history." See also the remarks of the Court in the Art Metals Construction Co case, quoted in footnote 23, supra. 21 It should be noted that, since the respondents contend in their briefs that their signed statements of policy are binding written agreement with the Locals , the respondents them- selves cannot believe that the circumstances are such that all agreements , or all written agreements , between the respondents and the Locals are detrimental to the respondents and their employees. rr ". .. the refusal by employers to accept the procedure of collective bargaining leads to strikes and other forms of industrial strife or unrest ... The inequality of bargaining WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 171 A statement of policy of the type involved in this case is not a collective agreement, but at most is a unilateral, individual agree- ment. At best, it runs between the employer and the individual employees, and not between the employer and the representatives chosen by the employees collectively. It therefore denies to the labor organization designated by the employees status, dignity, and responsibility equal to that of the employer as a contracting and contractually bound party-an equality expressly set forth as one of the Act's objectives. It precludes the tulion, as a quid pro quo for the obligation assumed by the employer, from binding itself to a set procedure for the peaceful determination Of grievances and other disputes. Such commitments by unions are frequent in the normal trade agreement, that is, the bilateral, mutually binding agreement between the employer and the union, and obviously fulfill the purposes of the Act by insuring industrial peace and stability. 28 The employees naturally resent the denial to their chosen rep- resentatives of a position of equality in bargaining with the em- power between employees . . and employers . tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries . . . protection by law of the right of employees to . . . bargain collectively safeguards commerce . . . by removing certain recognized sources of industrial strife and unrest, by encouraging practices fundamental to the friendly adjust- ment of labor disputes . . . and by restoring equality of bargaining power between em- ployers and employees . . . It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce . by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and condi- tions of their employment or other mutual aid and protection " Section 1 of the Act 28 In N L. R B v. Highland Park Mfg. Co, C C A 4, March 11, 1940, the Court sum- marized the function of the normal trade agreement, that is, a bilateral collective one, as tollows : "The purpose of the written trade agreement is, not primarily to reduce to writing settlements of past differences, but to provide a statement of principles and rules for the orderly government of the employer-employee relationship in the future The trade agree- ment thus becomes, as it were, the industual constitution of the enterprise, setting forth the broad general principles upon which the relationship of employer and employee is to be conducted. Wages may be fixed by such agreements and specific matters may be provided for, but the thing of importance is that the agreement sets up a modus vivendi, under which employer and employee are to carry on It may be drawn so as to be binding only so long as both parties continue to give their assent to it; but the mere fact that it provides a framework within which the process of collective bargaining may be carried on is of incalculable value in removing the causes of industrial strife. If reason and not force is to have sway in industrial relationships, such agreement should be welcomed by capital as well as by labor. They not only provide standards by which industrial disputes may be adjusted, but they add dignity to the position of labor and remove the feeling on the part of the worker that he is a mere pawn in industry subject to the arbitrary power of the employer" The proposed contract submitted to X-Ray by Local No. 1207 provided that the Local would "not cause or officially sanction its members to cause, or take pait in any sit-down, stay-in, or slow-down, or any other stoppage of work within the terms" of the contract. The proposed contract also provided for arbitration pro- cedure to settle disputes between X-Ray and the Local. In Consolidated Edison Co. v N. L. R. B , 305 U. S. 197 (1938), the United States Supreme Court said: "Moreover the fundamental purpose of the Act is to protect interstate and foreign commerce from interruptions and obstructions caused by industrial strife This purpose appears to be served by these contracts in an important degree Representing such a'large percentage of the employees of the companies, and precluding stiikes and providing for arbitration of disputes, these agreements are highly protective to interstate and foreign commerce " 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer. Also, the ambiguous nature of the statement of policy arising from the fact that great doubt exists whether it constitutes an agreement of any kind is bound to create misunderstandings and disputes as to the type and enforceability of the rights, if any, created by the statement.29 With such conditions as inevitable con- comitants, statements of policy tend to lead and have led to distrust and rejection by employees and unions of the practice and procedure of collective bargaining-a consequence fundamentally at variance with the purposes of the Act. A statement of policy also confuses the employees as to the union's role in the collective bargaining process. The term collective bar- gaining connotes a collective, not an individual agreement. The right of employees to bargain collectively through representatives of their own choosing becomes confused and attenuated if, after having formed their union and negotiated through it with the em- ployer, the understandings reached are not embodied in an agree- ment between the employer and the union, but are cast in a form that at best runs between the employer and the individual enmployee. Indeed, the respondents' position is analogous to that of the em- ployers in a series of cases decided by this Board.30 In each of these cases the employer pursued the policy of dealing with a committee of the union representing the employees but refusing to embody understandings arrived at in a collective agreement with the union, seeking instead to embody the terms and conditions of employment in contracts between himself and the individual employees. In each case we found that the employer's willingness to enter into such contracts failed to satisfy his obligation under the Act to bargain collectively.31 20 The ambiguous nature of the statement of policy is illustrated in the present proceed- ing During their negotiations with the Locals , as hereinbefore set forth , the respondents emphasized only the noncontractual aspects of the statement, refusing to refer to it as a contract or agreement of any kind whatsoever ; in their briefs for the Board, the respondents emphasize only the contractual aspects of the statement. 30 Matter of The Louisville Refining Co and Int. Ass'n Oil Field, Gas Well and Refinery Worlers of Amer, 4 N. L. R B 844 , enf'd, as modified as to other issues, N. L. R. B. v. The Louisville Refining Co., 102 F. (2d) 678 ( C C. A 6, 1939), cert. den, 308 U S 568; Matter of Hopwood Retinning Co, Inc and Metal Polishers, Buffers, Platers and Helpers Int. Union, Local No. 8, 4 N. L. R. B 922, enf'd, as modified as to other issues , N. L. R B. v. Hopwood Retinning Co, Inc, 98 F ( 2d) 97 (C. C. A. 2, 1938 ) ; Matter of American Manufacturing Co and Textile Workers Organ . Comm, 5 N. L. R B. 443, enf'd, as modi- fied as to other issues , N. L. R B v. American Manufacturing Co, 106 F. (2d) 61 (C. C. A. 2, 1939), affirmed as modified as to other issues, 309 U. S. 629 ; Matter of National Licorice Go. and Bakery and Confectionery Workers Int. Union of Amer , Local Union 1,05, 7 N L. R. B. 537, enf'd, as modified as to other issues , N L R B. v. National Licorice Go, 104 F. (2d) 655 (C C A. 2, 1939 ), affirmed , as modified as to other issues, 309 U. S 350; Matter of American Numbering Machine Co . and Int . Ass'n of Machinists, District #15, 10 N. L. R B. 536; Matter of Independent Pneumatic Tool Co. and Steel Workers Organ. Comm, 15 N L. it. B. 106; Matter of National Motor Rebuilding Corp. and Inter Assn of Machinists, District No. 15, 19 N. L. It B 503. ° 31 In the Hopwood case, supra, footnote 30, the Circuit Court of Appeals for the Second Circuit stated that the contract which the employer sought to substitute for that intended WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 173 It seems plain that by presenting the results of their dealings with the Locals in a unilateral statement of the respondents' posi- tion, signed only by the respondents, they in effect withheld recog- nition of the Locals as the authorized representatives of the em- ployees, at the strategic point where the bargaining process had reached its normal fruition. By this procedure the Locals were not accorded the status of an equal bargaining party and were reduced to the role of an advisory body to the management.3- We think it plain that the respondents' duty to recognize the Locals as the au- thorized representatives of the employees existed when the bargain- ing reached the point of embodying the understandings arrived at in a mutually binding agreement as well as during the prior nego- tiations. In other words, it was the respondents' duty to recognize the Locals as the representatives of the employees for purposes of contracting as well as negotiating.- To hold otherwise would be to hold that recognition by the employer of the representative of the employees, which is a "pivotal factor" in collective bargaining 94 grants only the right to discuss, and that the employees' repre- sentative must step aside at the final stage, abandoning its status as a responsible participant in the transaction. Such involuntary relinquishment by the employees' representative of recognition by and equality with the employer at the climax of the negotiations between them virtually compels the representative, in order to main- by the Act was not "a collective agreement with representatives of the employees, as provided by the Act." [Italics supplied.1 34 Thus respondents stated during the conferences • "The Policy of the Company is not to make or sign an agreement but bargain collectively and if , after such bargaining, it is found within the Company's policy or within the thought of the Company to change the policy, they will do so." The "company's policy" was defined by respondents as "nothing more than the opinion of the Manager of the branch at Westinghouse .. . at all times subject to negotiations and bargaining " 3i In Consolidated Edison Co. v. N. L. R. B., 305 U. S. 197 ( 1938 ), the United States Supreme Court said : "The Act contemplates the making of contracts with labor organiza- tions That is the manifest objective in providing for collective bargaining ." [ Italics supplied ] In his opinion , concurring in part and dissenting in part, in this case, Mr. Justice Reed said : "It is agreed that `the fundamental purpose of the Act is to protect interstate and foreign commerce from interruptions and obstructions caused by industrial strife.' This is to be accomplished by contracts with labor organizations, reached through collective bargaining." [ Italics supplied ] In N. L. R. B. v. The Sands Manufacturing Co., 306 U S . 332 (1939 ), the United States Supreme Court said . "The legislative history of the Act goes far to indicate that the pur- pose of the statute was to compel employers to bargain collectively with their employees to the end that employment contracts binding on both parties should be made." [ Italics supplied.] In Globe Cotton Mills v. N. L R B, 103 F. (2d) 91 ( C. C. A. 5, 1939), the court stated : ". . . there is a duty on both sides . . . to enter into discussion with an open and fair mind, and a sincere purpose to find a basis of agreement touching wages and hours and conditions of labor, and if found to -embody it in a contract as specific as possible, which shall stand as a mutual guarantee of conduct, and as a guide for the adjustment of grievances ." [ Italics supplied ] 34 The United States Supreme Court has repeatedly emphasized this as a "pivotal factor." N. L. R. B. v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261, 266-268 ( 1938) Texas if N. C. R. Co. v. Brotherhood of Railway if S. S. Clerks, 281 Virginian By. Co. v. System Federation No. 40, 300 U S 515, ( 1937). U. S. 548 ( 1930) 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tarn its hold upon the employees, to resort to other and more drastic methods than collective bargaining to obtain full credit from the employees for its achievements on their behalf. The respondents, during their conferences with the Locals, insisted that their statements of policy should be in effect only until further notice, and should be terminable at the will of the respondents, after the respondents had given the Locals what in the judgment of the respondents constituted reasonable notice under the circumstances. The respondents indicated that in certain situations notice of ter- mination might not be given the Locals until but a few hours before such termination, or until such termination had actually occurred. Such a statement of policy, since it may be terminated at the will of the employer and virtually without notice to the employees, fails, in so far as the employees are concerned, to stabilize their relations with the employer.35 Moreover, collective bargaining concerning the termination or alteration of the terms of an agreement is apt to be much less successful, and therefore less frequently used by labor or- ganizations, in cases where the employer by unilateral action, without conferring with the labor organization, has already changed the terms of the agreement. Such unilateral changes induce employees, who naturally resent such treatment, to resort to strikes and other methods of industrial warfare rather than collective bargaining to obtain their demands.36 33 In Matter of Harnisclifeger Corp . and Amal. Ass'n of Iron, Steel d Tin Workers of N Amer, Lodge 1111, 9 N. L R. B 676, we said • "An essential purpose of collective bargaining is to stabilize labor relations , so that workers may deal as business equals with their employers as to their terms and conditions of employment If the employer is at all times to be free to change such terms and conditions unilaterally, collective bargaining will have failed to achieve one'of its tundamental aims" We have.repeatedly held it a refusal to bargain where , at a tune when the employees ' designated representa- tives are attempting to bargain collectively , an emplover unilateially acts with respect to matters which normally are the subject matters of collecti'se bargaining See Matter of Wilson d Company and United Packinglroiise Woikoie . 19 N L R B 990, and cases cited in footnote 11 therein ; Matter of John J Oughton and Textile Workers Organ. Comm, 20 N L R B 301 Insistence by the respondents upon the statement of policy, rather than a binding agreement, differs only in the immaterial circumstance that by taking such a position the respondents , in effect , threatened unilateral action in the future. The threat, however, was immediate and at once ci eated a situation antithetical to the stable relationship envisaged by the Act. ae Cf footnote 35. supra. The old National Labor Relations Board dealing with the right to bargain collectively under Section 7 (a) of the National Industrial Recovery Act reached a substantially similar conclusion In the Matter of Houde Engineering Corp , 1 N. L R B ( old) 35, that Board said : "Collective bargaining, then, is simply a means to an end. The end is an agreement . . . The purpose of every such agreement has been to stabilize, for a certain period, the terms of employment , for the protection alike of employer and employee . When it [Section 7 (a) l speaks of `collective barga.ning ' it can only be taken to mean that long-observed process whereby negotiations are conducted for the purpose of arriving at collective agreements, governing , terms of employment for some specified period ." [ Italics supplied ] And also in Matter of National Aniline d Chemical Co, 1 N. L R. B. (old) 114, the same Board said* "It [Section 7 (a)] contemplates that the demands . . if acceptable to the emplover , be embodied in an agreement , and that such an agreement bind both WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 175 The fact that the contractural nature of the statement of policy is doubtful and ambiguous; the fact that its obligations may be changed or terminated at the pleasure of the employer alone, irrespective of the desires of the employees or of their representa- tives and without prior negotiation with them; the fact that it recognizes the union as the representative of employees for the pur- poses of negotiation only and not for the purposes of contracting, thereby denying the union recognition at the most vital point of the bargaining process; the fact that it precludes the employees' repre- sentative accepting responsibility for, and agreeing to prevent, strikes by the peaceful adjustment of disputes; the fact that it denies the employees' representative equal status and dignity with the em- ployer as a contracting and contractually bound party; all lead us to find that such a statement will defeat the policies and purposes of the Act by discouraging the practice and procedure of collective bargaining and thereby increasing costly and destructive industrial strife and instability. We find that the signed statements of policy of the respondents do not satisfy the requirements for collective bargaining of Section 8 (5) of the Act.31 We find that the respondents, by refusing to enter into any bindh.g agreements with them, have refused to bargain collectively with each of the following Locals of United Electrical, Radio and Machine Workers of America-Nos. 601, 202, 1207, 107, 111, 130, 1105, 1412, and 209-as the exclusive representative of their employees in an appropriate bargaining unit described in Section III-A,--1, above, and listed after the name of the Local in Section III-A-2, above, in respect to rates of pay, wages, hours of employment, and other conditions of employment. We find that the respondents, by refusing to enter into written agreements with them, have refused to bargain collectively with each parties for a certain period of time If such an agreement did not run for a definite period of time it would be without legal validity as an agreenten't." [ Italics supplied ] The Report of the House of Representatives Committee on Labor, 74th Congress, 1st Session , Report No . 1147 , at page 20 states in regard to Section 8 ( 5) of the Act "As has been frequently stated , collective bargaining is not an end in itself , it is a means to an end, and that end is the making of collective agreements stabilizing employment relations for a period of time, with results advantageous both to the worker and the employer." [Italics supplied.] The Report of the Senate Committee on Education and Labor, 74th Congress, 1st Session, Report No 573. at page 13 states in regard to Section 8 (5) of the Act. "The object of collective baigaining is the making of agreements that will stabilize business conditions [Italics supplied] .11 37 Matter of Pittsburgh Metallurgical Co , Inc and Local 12,077 Gas and By-Products Coke and Chemical Workers, 20 N. L. R B 1077 Cf Matter of United States Stamping Co. and Enamel Workers Union, No 18630, 5 N. L R. B 172 ;'Matter of H H Heinz Co. and Canning and Pickle Workers, Local Union No 325, 10 N . L. R. B. 963 ; Matter of Fort Wayne Corrugated Paper Co. and Local No. 182, Int. Brotherhood of Pulp, Sulphite, and Paper Mill Workers, 14 N L R. B 1; Matter of Dallas Cartage Co and Int'l Brother- hood of Teamsters , Chauffeurs, Stablemen it Helpers of Amer, Local 7115, 14 N L R B. 411. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the following Locals of United Electrical, Radio and Machine Workers of America-Nos. 601, 202, 1207, 107, 111, 130, 1105, 1412, and 209-as the exclusive representative of their employees in an appropriate bargaining unit described in Section III-A-1, above, and listed after the name of the Local in Section III-A-2, above, in respect to rates of pay, wages, hours of employment, and other conditions of employment. We find that the respondents, by the acts and conduct set forth in the preceding two paragraphs, have failed to bargain collectively in good faith with each of the following Locals of United Electrical, Radio and Machine Workers of America-Nos. 601, 202, 1207, 107, 111, 130, 1105, 1412, and 209-as the exclusive representative of their employees in an appropriate bargaining unit described in Section III-A-1, above, and listed after the name of the Local in Section III-A-2, above, in respect to rates of pay, wages, hours of employment, and other conditions of employment. We find that by the refusals to bargain collectively set forth in the three preceding paragraphs, the respondents have interfered with, coerced, and restrained their employees in the exercise of their rights to self-organization, to form, join, or assist labor organiza- tions, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining and other mutual aid and protection as guaran- teed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondents set forth in Section III above, occurring in connection with the operations of the re- spondents described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and with foreign countries, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE PETITIONS OF THE BROTHERHOOD TO INTERVENE As hereinbefore stated, the Brotherhood filed a petition, dated December 4, 1939, and a supplemental petition, dated December 19, 1'939, requesting leave to intervene in these proceedings. These petitions relate solely to the Chicago, Illinois, plant of the respondents. On December 23; 1938, after a hearing in which the Brotherhood participated and was represented by counsel, the Board found that all the production, maintenance, and service employees, exclusive of foremen, clerical employees, engineers, watchmen, warehouse em- ployees, and salaried employees, of Westinghouse at its Chicago, WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 177 Illinois, plant, known as the Chicago service shop, constituted an appropriate bargaining unit and certified Local No. 1105 of the United, which it found represented a majority of employees in this unit, as the exclusive representative of the employees for collective bargaining purposes.38 As previously set forth, on August 31, 1939, the Board issued its complaint in the instant proceeding, Case No. C-1241, alleging, inter alia, that Westinghouse had refused to bar- gain collectively with Local No. 1105 of the United as the exclusive representative of employees in the unit, found appropriate by the Board in its Decision of December 23, 1938, and also in the present Decision, for employees at the Chicago service shop. The Brotherhood's petitions allege in substance that of the 160 employees in the unit we have hereinbefore found appropriate for employees at the Chicago service shop, no less than 90 have desig- nated the Brotherhood as their representative for the purposes of collective bargaining, as is evidenced by cards designating the Brotherhood as their representative for the purposes of collective bargaining signed by 47 employees in August 1939, 23 employees in September 1939, 9 in October 1939, and 11 in November 1939. Assuming that the above allegations in the Brotherhood's petitions are true, we are of the opinion that the petitions must be denied for failure to show sufficient cause to allow the Brotherhood to intervene in the present proceeding. The Board having found that Local No. 1105 of the United represented a majority of employees on Decem- ber 23, 1938, and having certified it as exclusive bargaining agency, the established majority of Local No. 1105 must be presumed to con- tinue until the contrary is clearly shown; no such showing has been made by the Brotherhood for any period prior to November 1939. The complaint in Case No. C-1241 was issued on August 31, 1939, the hearing held and stipulation signed on September 9, 1939, and the stipulation approved by the Board on October 18, 1939. We have hereinbefore found that the negotiations and refusals to bargain by the respondents with the United occurred during the period from May 1937 to June 30, 1939. None of the Brotherhood's cards are alleged to have been signed until August 1939, nor did a majority of employees, according to the allegations of the petitions, sign the cards until November 1939. According to its petitions, the Brotherhood could not have represented a majority of employees, therefore, until after the respondents, as we have found, by their refusals to bargain collectively with the United engaged in unfair labor practices with- in the meaning of Section 8 (1) and (5) of the Act. The allegations in the Brotherhood's petitions, consequently, cannot affect our find- ings that at the time of the respondents' refusal to bargain collec- °Matter of Westinghouse Electric & Manufactuitnq Company and United Electrical, Radio 4 Machine Worhers of Amer. 10 N L R. B 794. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tively with Local No. 1105 of the United, this Local represented a majority of employees in,the appropriate unit. Furthermore, accepting as true the allegations in the petitions indicating that, subsequent to the commission of unfair labor prac- tices by the respondents, Local No. 1105 of the United ceased to rep- resent a majority of employees, we are of the opinion that our Order hereinafter set forth directing the respondents to cease and desist from their refusals to bargain collectively with the Local and to bargain collectively with it, should not, therefore, be modified. The respondents' refusal to bargain collectively with the United obviously discouraged membership in that organization. Since em- ployees join labor organizations to secure collective bargaining, whether or not the employer recognizes and bargains with the agency selected by the employees is a decisive factor affecting the ability of that representative to. secure or retain constituents. The natural effect of a refusal to recognize and bargain with the employees' representa- tive, thereby precluding the exercise of its principal and essential function, is to direct the employees to a second choice. So long, therefore, as the respondents' refusal to bargain is not effectively remedied, we cannot regard any asserted shift away from the freely chosen representative as the uninfluenced and voluntary action of the employees. The shift might not, and normally would not, have occurred if the respondents had bargained with the United, the rep- resentative first chosen, as required by the Act. 39 As we have else- where pointed out,40 therefore, the fact that a labor organization which represents a majority of employees at the time when the em- ployer refuses to bargain collectively with it, thereafter loses this majority, cannot affect our Order, which is designed to remove and avoid the effects of the unfair labor practices. Moreover, we are of the opinion that effective administration of Section 8 (5) of the Act requires the denial of the petitions, since the granting of them would necessitate, at the request of any alleged employees' representative, successive inquiries which might delay in- definitely any bargaining order. 0D In N L R B. v Highland Park Mfg, Co, C C A 4, March 11, 1940, the Court said. "It is reasonable to assume, moreover, that any decline in union membership has been due in large measure to refusals of respondent to bargain with the Union as representative of the employees in the manner contemplated by the Act of Congress ; and, in such a situation, an order requiring respondent to bargain as contemplated by the Act is rea- sonably necessary to overcome the effect of the interference with self-organization result- ing from the refusal to bargain." In Matter of the Gates Rubber Co. and Denver Printing Pressmen and Assistants Union No 40, 15 N L R B. 158, 164, we pointed out : "The refusal to bargain collectively disrupts the morale of the men, has a deterring effect upon the organizational activity of the unions and a discouraging influence on members already gained which tends to induce them to drop from the ranks." 90 See for example, Matte) of the Gates Rubber Co and Denver Printing and Pressmen and Assistants Union No 40, 15 N. L. R B. 158, 163-164; Matter of P. Lorillard Co. and Local Union No 201, Tobacco Workers' International Union, 16 N. L. R. B 703. WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 179 We do not mean by our ruling to foreclose the right of the Broth- erhood to seek to represent the employees after genuine freedom of selection has been restored by removing the impediments the re- spondents have created. The sole issue here involved is whether we should determine a new question of representation before the re- spondents' unfair labor practices have been effectively remedied. We believe that such determination should wait until conditions permit- ting a free choice have been reestablished by remedying the violations of the Act here involved.41 VI. THE REMEDY Having found that the respondents engaged in certain unfair labor practices, we shall order them to cease and desist therefrom. We have found that the respondents have refused to bargain collec- tivelv with the Locals, in that they have refused to enter into any binding agreements or any written contracts with the Locals. We shall address our order specifically to the wrongs sought to be rem- edied. In order, therefore, to effectuate the purposes and policies of the Act, we shall order the respondents, upon request, to bargain col- lectively with each of the Locals in respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached on any such matters, to embody said un- derstanding in a signed agreement with the respective Local, if re- quested to do so by the Local. Upon the basis of the above stipulation and foregoing findings of fact, and upon the entire record in the case, the Board makes the following : 41 In Inter. Ass'n of Machinists v N. L R B., 110 F ( 2d) 29 (C. A, D. C ), the court sustained the Board 's refusal to investigate an alleged change of affiliation by the em- ployees subsequent to the hearing and prior to the Board 's order. The court said : "There is nothing to Indicate that the unfair practices , which the Board and (as will appear) we have found existed, were remedied until after the order was entered . Therefore, any shift in majority affiliation between the hearing and the decision , had It occurred, pre- sumably must have been affected or effected by them Furthermore , the case is not one in which the majority at the time of the hearing was doubtful or improperly constituted, as by the employer's aid or inclusion of ineligible members whatever may be the rule when such defects exist , in their absence the presumption arises that the freely established majority continues until the Board has an opportunity to make its decision . In its discre- tion it may hear additional evidence as to the majority 's continued existence. But these presumptions , when sustained by the facts, should prevent its refusal to do so from being arbitrary , as against mere ex parte and selt-serving assertions that a shift has occurred Any other rule would make a mercy-go-round of the Act, since like representations could be made in turn following each new one by the contending unions in order to prevent or delay a decision contrary to their interests , with no other result than to maintain the proceeding in a state of indefinite suspension and indecision . This view does no more than afford the Board a reasonable opportunity to perform its functions under the Act It does not deprive employees of the power to select their representatives by choice of the majority If conditions have changed and a majority now wish to join a local I A M, they may do so and call for an election " Cf. N L. R B v BLles-Coleman Lumber Co , 06 F. (2d ) 197 (C C A 9) ; N. L. R. B v Remington Rand Inc, 94 F (2d) 862 (C C A 2), cert. den 304 U. S. 576. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLusIONs OF LAW 1. United Electrical, Radio and Machine Workers of America and its Locals Nos. 601, 202, 1207, 107, 111, 130, 1105, 1412, and 209 are labor organizations, within the meaning of Section 2 (5) of the Act. 2. Each of the following nine groups of employees of the respond- ents constitutes a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act: (a) All hourly paid employees of X-Ray at its Long Island City, New York plant; (b) All hourly paid employees, except supervisory employees, of Bryant in the production department of its two Bridgeport, Con- necticut, plants ; (c) All hourly paid employees and the shop clerk of Westinghouse at its Philadelphia, Pennsylvania, plant, known as the Philadelphia service shop ; (d) The production and maintenance employees of Westinghouse at its East Springfield, Massachusetts, plant, including shop clerical workers, shipping and receiving employees, tool and die makers, tool designers, test and inspection employees, repairmen, firemen and oper- ating engineers, and truck drivers, but excluding executives, super- intendents, foremen, general foremen, technical engineers, police, and main-office draftsmen and clerical workers; (e) All production and maintenance employees of Westinghouse at its Baltimore, Maryland, plant, except clerical help, and foremen and other employees in a supervisory capacity; (f) All employees of Westinghouse in the Insulator Department of its Emeryville, California, plant, except the office force and super- visory employees; (g) All the production, maintenance, and service employees of Westinghouse at its Chicago, Illinois, plant, known as the Chicago service shop, except foremen, clerical employees, watchmen, engineers, salaried employees, and warehouse employees; (h) All hourly paid employees of Westinghouse at its East Pitts- burgh, Pennsylvania, plants, including the East Pittsburgh Works, the Trafford Works, and the Homewood Service Works (including Linhart and Copper Mill), except supervisory and clerical employees; (i) All hourly paid employees of Westinghouse in the Manufac- turing Department (except the police and employees with power to discharge) of the South Philadelphia, Pennsylvania, plant, and certain salaried employees of Westinghouse (eligible to vote as agreed to by two labor organizations in connection with an election held by the Board's Fourth Regional Office on June 29, 1937) in the Works, Metallurgical, Patent, and Accounting Departments of the South Philadelphia, Pennsylvania, plant. WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 181 3. By virtue of Section 9 (a) of the Act each of the Locals of United Electrical, Radio and Machine Workers of America, listed below, having been selected as their representative by a majority of the employees in an appropriate unit set forth below after its name, was, at all times material for the purposes of this proceeding, and is the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment : (a) Local No. 1207: the unit described in paragraph 2 (a) above; (b) Local No. 209: the unit described in paragraph 2 (b) above; (c) Local No. 111: the unit described in paragraph 2 (c) above; (d) Local No. 202: the unit described in paragraph 2 (d) above; (e) Local No. 130: the unit described in paragraph 2 (e) above; (f) Local No. 1412: the unit described in paragraph 2 (f) above; (g) Local No. 1105: the unit described in paragraph 2 (g) above; (h) Local No. 601: the unit described in paragraph 2 (h) above; (i) Local No. 107: the unit described in paragraph 2 (i) above. 4. By refusing to bargain collectively with each of the nine Locals of United Electrical, Radio and Machine Workers of America, listed in paragraph three above, as the exclusive representative of their em- ployees in the appropriate unit listed after the name of the Local in said paragraph three, the respondents have engaged in and are en- gaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in and are engaging in unfair labor prac- tices, within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above stipulation, findings of fact, and con- clusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondents, Westinghouse Electric & Manufacturing Com- pany; Pittsburgh, Pennsylvania, Westinghouse X-Ray Company, Inc., Long Island City, New York, and The Bryant Electric Com- pany, Bridgeport, Connecticut, and their officers, agents, successors. and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with each of the following Locals of United Electrical, Radio and Machine Workers of America-Nos. 601, 202, 1207, 107, 111, 130, 1105, 1412, and 209- 28.:032-41-vol 22-1.1 182 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD as the exclusive representative of the employees in a unit described and listed below after the name of said Local: (1) Local No. 1207: All hourly paid employees of X-Ray at its Long Island City, New York, plant; (2) Local No . 209: All hourly paid employees , except supervisory employees, of Bryant in the production department of its two Bridge- port, Connecticut , plants ; (3) Local No. 111: All hourly paid employees and the shop clerk of Westinghouse at its Philadelphia, Pennsylvania, plant, known as the Philadelphia service shop; (4) Local No . 202: The production and maintenance employees of Westinghouse at its East Springfield , Massachusetts, plant, in- cluding shop clerical workers, shipping and receiving employees, tool and die makers , tool designers, test and inspection employees, repairmen, firemen and operating engineers, and truck drivers, but excluding executives , superintendents , foremen, general foremen, technical engineers, police, and main office draftsmen and clerical workers ; (5) Local No. 130: All production and maintenance employees of Westinghouse at its Baltimore , Maryland, plant, except clerical help and foremen and other employees in a supervisory capacity; (6) Local No. 1412: All employees of Westinghouse in the In- sulator Department of its Emeryville , California, plant, except the office force and supervisory employees ; (7) Local No. 1105: All the production, maintenance, and service employees of Westinghouse at its Chicago , Illinois, plant, known as the Chicago service shop , except-foremen, clerical employees , watch- men, engineers, salaried employees , and warehouse employees ; (8) Local No. 601: All hourly paid employees of Westinghouse at its East Pittsburgh, Pennsylvania, plants, including the East Pittsburgh Works, the Trafford Works, and the Homewood Service Works (including Linhart and Copper Mill), except supervisory and clerical employees; (9) Local No. 107: All hourly paid employees of Westinghouse in the Manufacturing Department (except the police and employees with power to discharge ) of the South Philadelphia, Pennsylvania, plant, and certain salaried employees of Westinghouse (eligible to vote as agreed to by two labor organizations in connection with an election held by the Board's Fourth Regional Office on June 29, 1937) in the Works, Metallurgical, Patent, and Accounting Depart- ments of the South Philadelphia , Pennsylvania, plant; (b) In any other manner interfering with, restraining , or coercing their employees in the exercise of the rights of these employees to self-organization , to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, 0 WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 183 and to engage in concerted activities for the purposes of collective bargaining or other mutual aid and protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with each of the follow- ing Locals of United Electrical, Radio and Machine `Yorkers of America-Nos. 601, 202, 1207, 107, 111, 130, 1105, 1412, and 209- as the exclusive representative of the employees in the unit described and listed after the name of said Local in paragraph 1 (a) of this Order, in respect to rates of pay, wages, hours of employment, and other conditions of employment; and, if an understanding is reached on such matters, embody said understanding in a signed agreement with the respective Local, if requested to do so by said Local; (b) Post immediately notices to their employees in conspicuous places throughout their plants involved in this proceeding, located at Long Island City, New York; Bridgeport, Connecticut; East Springfield, Massachusetts; Chicago, Illinois; Baltimore, Maryland; East Pittsburgh, Pennsylvania; South Philadelphia, Pennsylvania; Philadelphia, Pennsylvania; and Emeryville, California, stating: (1) that the respondents will cease and desist as provided in para- graphs 1 (a) and (b) of this Order; and (2) that the respondents will take the affirmative action required by paragraph 2 (a) of this Order; (c) Maintain such notices for a period of at least sixty (60) consecutive days from the date of posting.