employers who signed the President's Reemployment Agreement. Employers not covered by a code or agreement remained unaffected by the mandates of section 7(a). Unrestrained by statutory prohibition, they might compel their employees to abstain from union activity.

In the next few years several labor boards succeeded each other for the purpose of administering section 7(a). There were also created labor boards which handled cases arising in particular industries under section 7(a). These boards through their decisions defined the rights and duties created by the statute. Through application of the provisions of section 7(a) to particular cases, they developed a law of collective bargaining.

Majority rule. The prime requisite for any technique of collective bargaining is the selection of representatives, and the selection must be free from interference. In Matter of Houde Engineering Corporation the National Labor Relations Board formulated the "majority rule" which was to govern the determination of who would be the representatives of a given unit. In this case, an election had been held under the auspices of the Board, in which the union had been chosen by a majority of the employees eligible to vote. The company contended that it was under a duty to deal with the association (an intracompany association) chosen by the minority as well as with the union designated by a majority. This the Board denied. It stated that the basic aim of section 7 (a) was to encourage collective bargaining as a means of making and maintaining collective agreements and thus "to stabilize, for a certain period, the terms of employment, for the protection alike of employer and employee" (p. 35). The Board stated that an interpretation of section 7 (a) permitting any practice which "would hamper self-organization and the making of collective agreements cannot be sound" (p. 37).

60 This was an agreement between the President and the individual employer whereby the employer promised to establish minimum working conditions including an observance of the principles of section 7 (a). It was devised to serve as a blanket code covering industry until individual codes had been formulated in pursuance of the statute.

et The National Labor Board, established by the President on August 5, 1933, was a bipartisan board of which Senator Wagner, an impartial member, was chairman. The first National Labor Relations Board was created on June 29, 1934, in compliance with a congressional resolution (Public Res. 44, 73d Cong.). This board was empowered to investigate controversies, hold elections and hearings, and make findings of fact regarding violations of section 7 (a) of the N. I. R. A. Unless otherwise specified, the term "Board" when used in this section on the National Industrial Recovery Act refers to the first National Labor Relations Board.

62 Chief among the special boards were the Petroleum Labor Policy Board, the Automobile Labor Board. and the Textile and Steel Labor Boards. The findings of these boards were turned over to the Compliance Division of the N. R. A. for enforcement.

631 N. L. R. B. (1) 35. Decisions of the National Labor Board and of the National Labor Relations Boards are cited by the abbreviations N. L. B. and N. L. R. B., respectively, with the volume and the page number of the pamphlet series printed by the Government Printing Office in which the case may be found. To distinguish the citations of the first National Labor Relations Board from the citations of cases decided by its successor established pursuant to the act of July 5, 1935 (49 Stat. 449), the designation (1) will follow the abbreviation N. L. R. B. in the citations of the first Board's cases.

The Board further stated that the policy of dealing first with one and then with the other organization destroyed the effectiveness of collective bargaining. This policy enabled the company to favor one group to the detriment of the other. It prevented the formation of agreements—the aim of collective bargaining. Nor did the Board agree that a composite committee including representatives of both the majority and the minority sufficed.64

But whether or not the workers' representation by a composite committee would weaken their voice and confuse their counsels in negotiating with the employer, in the end whatever collective agreement might be reached would have to be satisfactory to the majority within the committee. Hence the majority representatives would still control, and the only difference between this and the traditional method of bargaining with the majority alone would be that the suggestions of the minority would be advanced in the presence of the majority. The employer would ordinarily gain nothing from this arrangement if the two groups were united, and if they were not united he would gain only what he has no right to ask for, namely, dissension and rivalry within the ranks of the collective-bargaining agency (p. 40).

The Board held that the purpose of section 7 (a) favoring collective bargaining compelled an interpretation of that section embodying the majority rule as a necessary device in the selection of representatives. Thus:

When a person, committee or organization has been designated by the majority of employees in a plant or other appropriate unit for collective bargaining, it is the right of the representative so designated to be treated by the employer as the exclusive collective bargaining agency for all employees in the unit, and the employer's duty to make every reasonable effort, when requested, to arrive with this representative at a collective agreement covering terms of employment of all such employees (p. 44).

The order required the company to recognize the union as the exclusive bargaining agency of its employees and to enter into negotiations with the union in an effort to arrive at a collective agreement covering conditions of employment. However, it did not require the minority to join the organization which represented the majority. The Board utilized the technique of election by secret ballot in order to designate representatives for a given unit.65 Although its predecessor, the National Labor Board, very early began to hold elections, no express legislative authority for this existed until the passage of Public Resolution No. 44, which set up the Board.66 Any board established by the President pursuant to the resolution had

Also see Matter of the Denver Tramway Corporation, 1 N. L. B. 64, Mar. 1, 1934, where the Wagner Board announced the majority rule.

6 The Board did not decide in any of its cases what constitutes a majority whose representatives are entitled to speak for the entire group in matters of collective bargaining. See p. 249 for subsequent clarification of this problem in a decision of the second National Labor Relations Board, and p. 252 for court decisions arising under the 1934 amendments of the Railway Labor Act.

Space does not permit a summary of the cases dealing with the question as to what constitutes an appropriate collective-bargaining unit.

66 48 Stat. 1183. Public Res. 44, 73d Cong,

the power to hold elections, when it appeared "in the public interest."'67 The Petroleum Board ruled that any appropriate method of ascertaining the representatives of the employees was permissible and that the method of formal election was not indispensable.68

Collective bargaining. The N. I. R. A. did not define the rights and obligations concerning collective barganing which were established by section 7 (a). That section merely stated "that employees shall have the right * to bargain collectively * The decisions of the different boards interpreted this to mean that there existed a correlative duty for employers to bargain collectively.

The subjects of collective bargaining were to be wages, hours, and working conditions.69

Toilet facilities, safety measures, lighting and ventilation, coat racks, slippery stairs, and so on * * in no sense constitute the recognized subjects of collective bargaining, namely, wages, hours and basic working conditions.70

The duty to bargain collectively involves more than merely meeting with representatives of the workers. The employer must "negotiate actively in good faith to reach an agreement." 71 He must "discuss differences with the representatives of the employees and

72

exert every reasonable effort to reach an agreement on all matters in dispute." " There is no duty to make any particular agreement, but where a proposal is not satisfactory it should be met by counterproposals rather than a flat refusal to continue further negotiation. The law contemplates

that both parties will approach the negotiations with an open mind and will make a reasonable effort to reach a common ground of agreement. The definite announcement of the company that it will not make an oral or written agreement deprives collective bargaining of any content or objective.73

The Board stated that agreements usually should be in writing, although circumstances of a particular case might create an exception. An agreement

unless reduced to writing, will be so impractical of enforcement and so fruitful of disputes concerning terms, that an insistence by an employer that he will go no

67 Elections have long been used by different agencies of the Government to determine questions of representation. The National War Labor Board and the various railroad boards found it necessary to hold elections. The order upheld by the Supreme Court in the Railway Clerks' case (see p. 221) required the company to reinstate the brotherhood as representative "until such time as these employees, by a secret ballot taken in accordance with the further direction of the Court • ⚫ should choose other representatives."

69 Thus on an appeal in the case of Magnolia Co. (case no. 2, decision, Feb. 6, 1934; decision on appeal, Feb. 28, 1934), certification was made upon the basis of an election petition signed by a majority of the employees in the collective-bargaining unit. The company had agreed to recognize the person or agency designated in the petition by the majority as representative for the unit.

6 Matter of Art Metal Construction Co., 1 N. L. B. 24, Nov. 1, 1933; Matter of Houde Engineering Corporation, supra.

70 Matter of Houde Engineering Corporation, supra, at 38.

71 Matter of Eagle Rubber Co., 2 N. L. B. 31, 33, May 16, 1934.

72 Matter of National Lock Co., 1 N. L. B. 15, 19, Feb. 21, 1934.

73 Matter of Connecticut Coke Co., 2 N. L. B. 88, 89, June 30, 1934.

further than to enter into an oral agreement may be evidence, in the light of other circumstances in the case, of a denial of the right of collective bargaining." Collective bargaining is the means to an end.

The end is an agreement. And, customarily, such an agreement will have to do with wages, hours, and basic working conditions, and will have a fixed duration. 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. By contrast, where all that transpires is a demand by employees for better terms and an assent by the employer, but without any understanding as to duration, there has been no collective agreement, because neither side has been bound to anything.75

Interference through various forms of discrimination.—Section 7 (a) specifically forbade interference with self-organization of workers. In so doing it limited the employer's right to discharge employees; it prohibited antiunion discrimination in all its various forms. The National Labor Board recognized that

There obviously is no more effective way of interfering with the self-organization of employees than to discharge those who are active in the union of their own choosing. The statutory requirement (which forbids dismissal for union activity) may not be evaded by the ready reliance on other grounds for discharge. The employer, in dismissing an employee, must not be actuated in any degree whatsoever by the latter's union affiliation or activities. The statute does not impair the freedom of employers of labor to discharge their employees for infractions of company rules or for other proper and adequate business reasons. To safieguard the privileges conferred by the statute, however, it is imperative that the circumstances of the discharge be carefully scrutinized and that its validity be determined by the appropriate agencies of the Government entrusted with the administration and enforcement of the law.76

The Board never clearly defined the extent to which the employee might be required to sustain the burden of proving antiunion discrimination. The remedy for unlawful discharge was reinstatement with back pay.

Other forms of interference also received the attention of the Board. Among these were the bribery of union officials which the Board described as—

A flagrant interference by [the employer] with the right of his employees to strike and to agitate by other lawful means in advancing their legitimate self-interest.77 Another form of interference was employer negotiation with employees for individual contracts requiring them not to strike.

The strike is, of course, the most effective weapon in the arsenal of an aggressive labor organization, and by the same token the most effective manner in which an employer can interfere with the self-organization of his employees and can prevent them from assisting labor organizations is to require them to agree not to strike.78 74 Matter of Anilene & Chemical Co., 1 N. L. R. B. (1) 114, 116, Oct. 3, 1934.

75 Matter of Houde Engineering Corporation, supra, pp. 35–36.

76 Matter of General Cigar Co., 1 N. L. B. 71, Feb. 6, 1934. A large proportion of the cases arising under section 7 (a) dealt with discharge for union activity.

77 Matter of North Carolina Granite Corporation, 1 N. L. R. B. (1) 89, 92.

78 Matter of John E. Lucey Shoe Co., 2 N. L. R. B. (1) 251,254, et seq., where the Board found such contracts to be in violation of both subsections (1) and (2) of section 7 (a).

Company unions. In addition to discharge for union activity, the most important and prevalent form of interference is employer participation in and sponsorship of company unions. Section 7 (a) did not ban company unions. The only direct mention of such associations occurred in subdivision (2) and provided "that no employee and no one seeking employment shall be required as a condition of employment, to join any company union

* * * ""

In Matter of Tamaqua Underwear Company," a closed-shop agreement between the company and the company union was held invalid. The company had sponsored the formation of Tamaqua Employees' Union. A poll was taken during working hours on the initiative of the management. Secret ballot was not used at this election. Those who did not vote to join the employees' union were locked out, but following the intervention of the Board, they were permitted to resume work. Subsequently an election was held under the supervision of the Board at which the employees' union was selected by a majority of the employees to represent them. With respect to the characteristics of this organization, the Board stated:

The hands which guided its organization were those of employees who were in an executive or supervisory position; *. If he (the general manager) did not initiate the union, he has at least fostered its growth with considerable enthusiasm by advising his employees to affiliate therewith and by permitting it to use the plant for meetings and his office equipment for certain typing (p. 11).

The association's president and the general manager signed a closedshop agreement which merely read:

It is hereby agreed that the Tamaqua Underwear Company agrees to recognize the demand of the Tamaqua Employees' Union for a closed shop, beginning June 22, 1934 (p. 10).

Subsequently, 61 employees who refused to join the organization were dismissed in conformity with the agreement. The Board, considering the company's efforts to foster the union, found it to be a company union within the meaning of section 7 (a), subdivision (2). It therefore held that the closed-shop agreement violated section 7 (a) in that it required employees as a condition of employment to join a company union and accordingly ordered the company to reinstate the 61 men who had been dismissed.

The company-union cases before the Board have presented a series of acts which in the aggregate have been held to constitute interference in violation of the statute. No single factor such as financial domination by the employer or the drafting of the constitution by management has been singled out as the sole cause of a decision. The decisions of the Board have considered and prescribed conduct which leads to employer domination of employee organizations. Such conduct includes the suggestion of the form of organization by

79 1 N. L. R. B. (1) 10.