[graphic][merged small][subsumed][subsumed][subsumed][merged small][merged small][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed]

FIG. 9. Functional organization of the Federal Mediation and Conciliation Service. (Federal Mediation and Conciliation Service, Fourth Annual Report, year ending June 30, 1951, 1952, p. 37.)

voluntary arbitration of grievance disputes which cannot be settled by negotiation." The Act, however, expressly provides that "the Service is directed to make its conciliation and mediation services available in the settlement of such grievance disputes only as a last resort and in exceptional cases."

Mediation and Representation. The Service as a general rule abstains from "any activity in the resolution of representation and like issues." According to the Service, "this policy is based upon the fact that the Labor Management Relations Act, 1947, contains a code of procedures to be administered by the National Labor Relations Board and its General Counsel for the determination of bargaining units, the conduct of elections, and the certification of authorized bargaining agencies," and "no functions or duties of this nature are allocated to the Service." During mediation, the Service does not seek to persuade an employer to negotiate with a labor organization when the employer takes the position that the Act imposes no duty upon him to do so."

Preventive Activities. The Service has adopted the policy of promoting industrial peace through mediatory efforts when the parties are not in dispute, "when tempers are cool, and when the mutual advantage of both parties may the more readily be recognized." These efforts include "searching out and analyzing situations which threaten peaceful industrial relations" and "devising procedures and plans or formulating suggestions which have tended to remove impediments to good labor relations." Such activities tend "to promote the possibility of the parties reaching agreement on the occasion of the next contract reopening." 45 The preventive-activities program of the Service emphasizes the longrange effect of the mediation efforts rather than "the immediate settlement of dispute situations"; and while the tools and techniques used "are fundamentally the same as those used in active dispute mediation, the essential difference is in the timing." Problems dealt with by the mediators include (1) grievance procedures, (2) “unsound attitudes and policies of the parties,” (3) “heavy turnover of workers," (4) "low manhour output or high production costs," (5) "lack of confidence," (6) "personal frictions, animosities, and prejudices between labor and management representatives," (7) "union refusal to recognize and understand management problems," (8) "management refusal actually and in good faith to recognize the union as bargaining agent for its employees," (9) "internal frictions within management or labor groups," and (10) "too frequent occurrence of differences or conditions that develop into formal grievances." 46

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46 Federal Mediation and Conciliation Service, Second Annual Report, 1949, p. 33.

The Service mediates disputes "on the premise that its interest does not cease with the settlement of immediate issues." The Service makes arrangements for further consultations with the parties in order to improve industrial relations, and this "postsettlement phase" of mediation "is now accepted as an integral part of the mediator's functions." Representatives of labor and management increasingly have sought out the services of the mediators to assist in resolving problems which could lead to serious disagreement; and in many communities, according to the Service, mediators are looked upon as a source of assistance throughout the year "as opposed to the prior conception that the Service functions only during contract negotiations." The Service has actively pursued a program "for the long range analysis and study of labor-management relations," including the use of seminars, institutes of industrial relations, and other educational devices." As long as this preventive program does not tend to put the parties into undue dependency upon the Service, and its efforts are not a form of crutch or calculated factor in the bargaining negotiations, it would seem that the efforts of the Service are commendable.

The Processing of Cases. The Taft-Hartley Act requires parties seeking to change or terminate collective agreements to give sixty days' notice to the other party of such intention, and to give the Service at least thirty days' notice if there has been no settlement in the meantime. According to the Service, it is through these dispute notices that most controversies come to its attention. Prior to this notice requirement, the United States Conciliation Service would find out about a dispute after it had reached a stage of conflict, but now it "is informed in advance and has an opportunity to mediate before a dispute reaches its final stage." Parties to a dispute may invoke assistance from the Service at their request, and the Service may "on its own motion intercede in a dispute which threatens to do considerable damage to the public interest." 48

The procedure in the handling of cases should be described. The notice or request for assistance is reviewed by the regional director, who decides whether the Service shall exercise jurisdiction. According to the Service, "during the fiscal year of 1950, a total of 2,589 cases were closed because of lack of jurisdiction, 570 were settled prior to determination of jurisdiction," and 14,367 cases were accepted by the Service. After jurisdiction over the case is determined, the regional director assigns the case to a commissioner for handling. In an active case, the commissioner actually participates in the negotiations between the parties "by

47 Federal Mediation and Conciliation Service, Third Annual Report, 1951, pp. 27– 29.

48 Ibid., pp. 10, 11.

calling separate or joint meetings to be conducted under his sponsorship." In a consultation case, the commissioner does not call meetings of the parties, but gives “advice or assistance, either in person, in writing, or by telephone to either or both parties." In a stand-by case, the services. of the commissioner are not required at the time; he "merely stands ready to intercede if and when his services become necessary." If collective bargaining is progressing satisfactorily and the parties are approaching a settlement, the commissioner "refrains from active participation in the negotiations."

Cases may also be classified as involving a work stoppage, which refers to "an actual cessation of work or operations" at the place of business of the employers; a threatened work stoppage, which refers to the situation in which "one of the parties has set a specific date for a work stoppage to begin but an actual stoppage was averted"; and a controversy, in which "a dispute exists but there is neither a work stoppage nor a threatened work stoppage."

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According to the Service, "government mediators do not, and should not, possess authority or powers other than those which flow from the respect with which the parties regard them and the persuasiveness of their logic. A mediator is a bridge over the gap separating the parties which they may traverse if they have a will to do so." 50 He is a counselor and adviser and is not generally regarded as a "representative of the government acting in its sovereign law-enforcing capacity." Conciliation and mediation activities, however, are of such a nature that detailed disclosures of them in particular disputes "can only tend to impair the effectiveness of the Service and its personnel in the future. This is so because mediation is so much more than a matter of holding formal record meetings at which public statements and announcements are made. The most effective mediation, in many disputes, takes place in the course of private discussions, the content of which would be a breach of confidence for the mediator to divulge." 51 The mediator "is not necessarily wiser or more able than the representatives of the parties," but his middle position "gives him the advantage of objectivity,' which they frequently do not possess; this advantage enables him to prevent each party from "underestimating the strength and determination of the other," and his possession of confidential information of what the parties may give and take allows him to be of assistance “in narrowing the issues and bringing about an agreement which might otherwise be withheld until there is an actual trial of economic strength."

49 Ibid., pp. 13, 19.


50 Federal Mediation and Conciliation Service, Second Annual Report, p. 5. 51 Ibid., p. 23.

52 Federal Mediation and Conciliation Service, First Annual Report, p. 4.

Arbitration and the Federal Mediation and Conciliation Service. If parties to a dispute have been unable to compose their differences and all efforts toward mediation of the issues and conciliation of the parties have failed, the mediators attempt to persuade the parties to arbitrate their differences. This policy is favored by the Service in the belief that "the public interest, as well as the interest of the parties themselves, requires that all methods for the peaceful solution of labor difficulties be exhausted before the parties resort to a test of economic strength." 53 The Service declares, however, that "as a matter of policy" it "does not permit mediators on its staff to accept arbitration assignments," nor does it assume any responsibility for arbitration awards. To do so would impair its effectiveness as a mediation agency. The role of the arbitrator is to render a quasi-judicial award which sides with one of the parties and at times results in the losing party acquiring strong feelings of resentment against the arbitrator. On the other hand, the role of the mediator is that of "confidential adviser and counselor of the disputants"; his successful functioning depends on maintaining the confidence of both sides in his own impartiality and fairness. Accordingly the Service feels that the roles of mediator and arbitrator are in conflict, and that if its primary goal of successful mediation is to be achieved, it cannot risk the dangers of assuming the function of arbitration.5+

If the parties have agreed to arbitrate their dispute, the Service attempts to offer them impartial assistance in their choice of an umpire. The policy of the Service is to have the parties themselves "agree upon and assume the responsibility for the selection" of an arbitrator, so when the parties request the appointment of an arbitrator, they are informed that "the Service prefers to submit the names of five qualified individuals in the area" from whom the arbitrator may be chosen. "If the parties are unable to agree upon a selection from the list submitted by the Service, the Service will designate an arbitrator not on the list, if the parties agree to this procedure." Such arbitrators owe "no responsibility to the Service, other than to act in accordance with certain maximum fee and other basic administrative rules prescribed for arbitrators whom the Service nominates." 55 The scale of suggested arbitration fees ranges "from $50 to $100 a day for time spent in travel, hearing, and preparation of the award, except in difficult and complex contract arbitrations in which the parties may agree to higher compensation." 56 According to the Service, it "maintains an extensive file of the names of qualified arbitrators located throughout the country, and gathers information re

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54 Federal Mediation and Conciliation Service, Second Annual Report, p. 38.
55 Federal Mediation and Conciliation Service, First Annual Report, p. 21.
56 Federal Mediation and Conciliation Service, Second Annual Report, p. 38.

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