The opinion
STEPHENS, Associate Justice
(dissenting) .
The National Labor Relations Act confers upon employees “the right ... to bargain collectively through representatives of their own choosing.” (Italics supplied) Act of Tuly 5, 1935, c. 372, § 7, 49 Stat. 452 , 29 U.S.C.A. § 157 . And in Section 8 the Act, 29 U.S.C.A. ■§ 158, makes it an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees ----” It is the duty of the Board and the courts to enforce these provisions. Under them the employer is required to bargain collectively with the chosen representatives of his employees and deals at his peril with anyone else; and under them no one can lawfully represent employees in collective bargaining except such persons as the employees have themselves chosen. There can be no lawful bargaining with or by self-constituted agents.
In order to convict the appellant of the unfair labor practice of refusing to bargain collectively with representatives of its employees, the Board was obliged to prove that S. W. O. C. had been authorized by a majority of the employees to represent them. I think its proof failed. It was shown that a-majority of the employees had *410 signed check-off cards exemplified by Exhibit 5, reading as follows:
“Wage Deduction Authority “No. 1106 Dated 11-13
“To the paymaster of
“I hereby authorize you to deduct from my wages one dollars ($1.00) per calendar month, beginning with the month of ............, 19...., provided I have worked a total of five (5)- days or more during the calendar month.
“This payment to be sent to the Secretary-Treasurer of S. W. O. C., David J. McDonald, 1500 Commonwealth Building, Pittsburgh, Pa.
“This authority to be effective during the life of the agreement. This authority will automatically be cancelled if, as and when the labor and working agreement between your Company and the S. W. O. C. terminates.
“Charles Achenback 510 N. Lincoln Ave.
“(Signature) (Address)”
The authenticity of the signatures on these cards as signatures of employees was not disputed by the appellant. But the Board concedes that the cards do not constitute an express authorization to bargain collectively ; it urges, however, that they imply such an authorization. It urges also that proof of usage was sufficient to show that the cards were intended by both the employees and S. W. O. C., and understood by the appellant, to be such an authorization.
I think it clear that the check-off cards say nothing expressly on the subject of authority for collective bargaining, and I am unable to conclude that they imply anything on that subject. If that is true, reliance must be upon proof of usage, and this must show that the cards, although without committal either express or implied in respect of collective bargaining authority, nevertheless actually meant to the employees of the appellant a choice of S. W. O. C. as collective bargaining representative. If the cards did not have this meaning to the employees who signed them, they can have no legal effect to constitute collective bargaining authority.
It is of course true that usage may annex terms to an agreement provided they are consistent with the express language or other manifestation of intention therein. See 3 Williston, Contracts (Rev. ed. 1936) § 648. But usage is a fact-—defined as habitual or customary practice among a certain class of people, or in a trade, or neighborhood, or geographical area. Usage derives its efficacy from the assent thereto of the parties to the transaction in question. Williston, op. cit. supra § 649. A party cannot be bound by usage unless he either knew, or ought to have known, of its existence and nature. “Accordingly, one who seeks either to define language or to annex a term to a contract by means of usage must either show that the other party was actually aware of the usage, or must show that there was a well-defined usage generally adopted by those engaged in the business to which the contract relates, at the place where the contract was made or was to be performed. It must, if not known, be so notorious that a person of ordinary prudence in the exercise of reasonable care would be aware of it.” Williston, op. cit. supra § 661.
The testimony concerning usage amounts to no more than the following: Harold E. Fritchman, district representative of S. W. O. G, testified:
“In all the plants which have been organized in the Reading district, since the time I have been looking after organization, which is a period of over two years, every plant which was organized, was organized on the basis of those white cards [the check-off cards]. We have been in the practice of signing those cards, and in six or seven plants in the city of Reading, the seventh being one which was organized before I came into it—
* * * * Jjt
“We have used the white cards in signing up members, and they have been accepted by all companies, without question, as proof that we represented a majority of the employees.”
In the first place this testimony fails to establish a definite usage generally adopted because it fails to specify how many plants there were in the Reading district. It refers to six or seven in the city of Reading. For all the record shows there may have been many more in the district. But apart from this the testimony shows that the plants were organized on the basis of the check-off cards, that S. W. O. C. has used these cards in signing up members, and that they have been, accepted by all conupanies, without question, as proof that S. W. O. C. represented a majority of the employees. This is no testimony that the cards constituted in the minds of the appellant’s employees (or indeed in the minds of employees in the Reading district gen- *411 orally) a collective bargaining authorization. To the extent that the testimony establishes usage in respect of the checkoff cards it establishes that usage only to the knowledge of S. W. O. C. and such plants and companies as it had organized. It does not at all establish the usage to the knowledge of, or bring it home at all to the employees of, the appellant; it does not show the usage to have been so notorious in the community that such employees must be charged with knowledge of it. I can give no weight to the argument of the Board and of the majority that the testimony concerning usage was uncontradicted. If the testimony was, as I think, ineffective to prove that the employees knew or ought to have known that the check-off cards, although lacking express or implied collective bargaining authorization upon their face, nevertheless were meant to constitute a collective bargaining authorization, it cannot be strengthened by an absence of contradiction.
I am unable to find anything persuasive in the majority view that no special formula or form of words is required by the National Labor Relations Act to evidence authority to bargain collectively for employees—that the Act is not a statute of frauds nor a statute prescribing the formalities of conveyancing and that lawyers’ formulae and formalities are not requisite. This argument I think but sets up a straw man to knock down. There is no contention by the appellant that a collective bargaining choice has to be evidenced by a technically worded document, and no such contention can I think be fairly attributed to the insistence that there must be some substantial evidence of authority to bargain. The precisions of language necessary to the art of conveyancing and the like are of course not requisite. All that is necessary is simple words clearly indicating an intention on the part of the employees to choose as their collective bargaining representatives the persons claiming to have been so chosen. Not even such words are shown in this case.
The reliance of the majority upon the indifference of the appellant is also I think beside the point. However indifferent the appellant may have been toward bargaining with S. W. O. C., the existence of authority in the latter to represent the employees for collective bargaining purposes cannot be founded upon such indifference. It must be founded upon proof of the existence of authority, not upon proof of the asserted indifference of the employer.
I think there was no evidence that the appellant’s employees had chosen S. W. O. C. to represent them for collective bargaining, and that therefore the Board’s charge that the appellant had committed the unfair labor practice of refusal to bargain collectively with the chosen representatives of its employees failed of proof.