33

tiations, and as a result employers tend to keep certain concessions in reserve and not represent as final any offer which may be submitted to the employees by ballot. The union representatives and members understand this strategy of the employer and act accordingly. So the compulsory last-offer ballot puts into motion a “cycle of tactical operations" by both parties which brings about serious delay in efforts to arrive at a prompt settlement of the dispute. According to the Joint Committee on Labor-Management Relations set up by the Act, "the vote upon the last offer has been of little value. It has presented great practical problems for the NLRB and in each instance the vote has been overwhelmingly against acceptance of the offer. Such result must be anticipated, for the calling of a strike of such magnitude as to invoke the nationalemergency procedure will usually involve a strong union." 34 The committee recommended that the Act be amended to eliminate the requirement for the last-offer ballot.

The Act also provides that the Director of the Federal Mediation and Conciliation Service, if unable to bring the parties to agreement within a reasonable time, shall try to induce them "voluntarily to seek other means of settling the dispute without resort to strike, lock-out, or other forms of coercion, including submission to the employees in the bargaining unit of the employer's last offer of settlement for approval or rejection in a secret ballot.” Although it is the policy of the Service to induce the parties to use the last-offer ballot procedure when in the judgment of the mediators the circumstances are appropriate, the Service does not itself conduct such secret ballots for the reason that the Act does not grant it such authority. Moreover the Service is reluctant to conduct such polls "because the necessity of ruling on challenges to votes would place the Service in a position which might interfere with the future usefulness of its staff as mediators." 35

THE FEDERAL MEDIATION AND CONCILIATION SERVICE

Title II of the Taft-Hartley Act declares that "it is the policy of the United States that sound and stable industrial peace and the advancement of the general welfare, health, and safety of the nation and of the best interests of employers and employees can most satisfactorily be secured by the settlement of issues through the processes of conference and collective bargaining between employers and the representatives of their employees," and "the settlement of issues through collective bargaining may be advanced by making available full and adequate govern33 Federal Mediation and Conciliation Service, First Annual Report, 1949, p. 57. 34 S. Rept. 986, Part 3, 80th Cong., 2d Sess., Dec. 31, 1948, p. 22.

35 Federal Mediation and Conciliation Service, First Annual Report, p. 19.

mental facilities for conciliation, mediation, and voluntary arbitration to aid and encourage employers and the representatives of their employees to reach and maintain agreements concerning rates of pay, hours, and working conditions." To carry out this policy, the Act creates an independent governmental agency, the Federal Mediation and Conciliation Service.

Previously the functions of mediation and conciliation were performed by the United States Conciliation Service in the Department of Labor. This service was started during World War I in accordance with the Act of 1913, which established the Department of Labor and provided that "the Secretary of Labor shall have the power to act as a mediator and to appoint commissioners of conciliation in labor disputes wherever in his judgment the interests of industrial peace may require it to be done." 36

Although the United States Conciliation Service established an outstanding record and won the respect of management and labor leaders in its years of public service in mediating labor disputes, there were some who felt that the Service was guilty of prolabor sympathy. According to Senator Taft, "We have set up a Mediation Service. We took it out of the Department of Labor because it was felt, rightly or wrongly, that as long as it was an agency of the Department of Labor it must necessarily take a prolabor slant and therefore could not be as fair in mediating differences between the parties." As a result all mediation and conciliation functions of the Secretary of Labor and all functions of the United States Conciliation Service were transferred to the newly created Federal Mediation and Conciliation Service together with the personnel and records of the United States Conciliation Service. To ensure complete independence of the new agency, the Act expressly provides that it "shall not be subject in any way to the jurisdiction or authority of the Secretary of Labor or any official or division of the Department of Labor." In keeping with this congressional intention, the new Service "has earnestly endeavored to earn a reputation for scrupulous and unquestioned impartiality and devotion to the public interest, exclusively.” Organization of the Federal Mediation and Conciliation Service. The Federal Mediation and Conciliation Service is headed by a Director who is appointed by the President. The Act provides that the principal office of the Service shall be in Washington, D.C., but authorizes the Director to "establish regional offices convenient to localities in which labor controversies are likely to arise"; it also authorizes the Director by order subject to revocation at any time to "delegate any authority

36 Ibid., p. 5. The quotation is found at 37 Stat. 738, Sec. 8.

37 Congressional Record, Vol. 93, 1947, p. 7690.

38 Federal Mediation and Conciliation Service, First Annual Report, p. 7.

"38

and discretion conferred upon him by this Act to any regional director, or other officer or employee of the Service." Subject to the civil-service laws, the Director is also authorized to appoint necessary personnel and make expenditures for supplies, facilities, and services.

The new Service includes a number of divisions:

1. The Administrative Management Division deals with "organization and methods analysis, budgetary and financial administration, personnel administration, services and supply, and operations audit."

2. The Assistant to the Director and General Counsel acts as "liaison with legislative and executive agencies, administers the arbitration program," provides legal counsel, and participates "in the mediation of nationally significant and national-emergency disputes."

3. The Associate Director "shares with the Director the administration of the Service," but puts "primary emphasis on internal administration direction and coordination of program and management activities."

4. The Assistant Director deals with the "direction and coordination of mediation activities in nationally significant, interregional, and other assigned disputes"; maintains "liaison wth national defense and other Federal procurement agencies"; and mediates national-emergency disputes.

5. The Consultant to the Director handles "special assignments for the Director."

6. The field representatives deal with the "planning and coordination of preventive activities, and the organized study program."

39

In setting up the new Service, the aim of the Director was "to restrict the national office staff to minimum size in order to make available to the field, where the bulk of the work of the Service is performed, the maximum amount of staff and funds" (see Fig. 8). The national office staff was limited to the function of "establishing basic policies and coordinating the activities of the field staff." Only disputes of “outstanding national significance" were directly handled in the national office.40 An organization and management survey was made in the first year of operation, which resulted in proposals for the decentralization of the operations of the Service and for the introduction of a simplified organizational structure. Decentralization was accomplished by (1) increasing the regional offices from eight to twelve, (2) requiring that all requests for the assignment of commissioners and all dispute notices be filed directly with the regional offices, and (3) discontinuing conciliationreport files in the national office and providing that all conciliation re

39 Federal Mediation and Conciliation Service, Fourth Annual Report, 1952, p. 37. 40 Federal Mediation and Conciliation Service, First Annual Report, p. 8.

ports by commissioners be filed only with the regional offices. Positions of district representatives were established to serve as liaison officers between the field and the national office. The functional organization of the Service is indicated in Fig. 9.

Jurisdiction of the Federal Mediation and Conciliation Service. The Taft-Hartley Act limited the jurisdiction of the Service by providing that it "may proffer its services in any labor dispute in any industry affecting commerce, either upon its own motion or upon the request of any one or more of the parties to the dispute, whenever in its judgment such dispute threatens to cause a substantial interruption of commerce." Accordingly the Service enters "only those cases in which a significant or considerable interruption of commerce is threatened and in which the interest of the Federal government to provide mediation services is clear." A further limitation upon the exercise of jurisdiction by the Service is contained in the provision of the Act stating that "the Director and the Service are directed to avoid attempting to mediate disputes which would have only a minor effect on interstate commerce if state or other conciliation services are available to the parties." The Service has construed this direction as being "less than a flat prohibition and interdiction" and as indicating that "Congress recognized that there might be exceptional cases" in which the Service might offer its services. The policy of the Service in exercising jurisdiction is that "the primary responsibility for industrial peace is on the parties" to the dispute. Responsibility in decreasing degree rests upon the community, the state, and the Federal government.42

Grievance Cases. The Taft-Hartley Act declares that "the desirable method for settlement of grievance disputes arising over the application. or interpretation of an existing collective-bargaining agreement" is by means of "a method agreed upon by the parties." The Act also states that:

it is the policy of the United States that certain controversies which arise between parties to collective-bargaining agreements may be avoided or minimized by making available full and adequate governmental facilities for furnishing assistance to employers and the representatives of their employees in formulating for inclusion within such agreements provision for . . . the final adjustment of grievances or questions regarding the application or interpretation of such agreements, and other provisions designed to prevent the subsequent arising of such controversies.

Accordingly, when appropriate, the mediators of the Service suggest to the parties the use of grievance machinery and procedures, "and the

41 Ibid., p. 15.

42 Ibid., pp. 15, 16.