"We thank with brief thanksgiving
Whatever gods may be...
That even the weariest river
Winds somewhere safe to sea."

TH

HESE four lines from Swinburne were quoted by the Secretary of Labor, W. Willard Wirtz, in an address before the National Academy of Arbitrators, after referring to the long-drawn-out proceedings in the airline industry and East Coast longshoremen disputes.1 The Secretary pointed out that "the last round of contract disputes in the airline industry (not yet quite completed) took over two years, and involved the President of the United States, the Secretary of Labor, the Under Secretary of Labor, the National Mediation Board, a Special Presidential Commission, nine Presidential Emergency Boards, and three Boards of Arbitration—a total of 36 pub

The author is professor of economics at The Pennsylvania State University and has written frequently on problems of railway labor. Research for this article was conducted during the tenure of a Ford Foundation Faculty Research Fellowship. The Ford Foundation is, however, in no way responsible for the analysis and conclusions.-EDITOR

lic representatives." He also pointed out that in "the recent longshore case, the public participants, during its twelvemonth course, were the President, the Secretary of Labor, an Assistant Secretary of Labor, the Director of the Federal Mediation and Conciliation Service, his Deputy, fifteen FMCS mediators, a TaftHartley Board of Inquiry, the Attorney General, the Federal District Court, the Mayors of numerous port cities, a Special Presidential Board which was appointed but never convened, and another Special Board under the chairmanship of a U. S. Senator."2

The Secretary referred to these disputes as "marathons of maneuver" and indicated that such procedures could not be described as "a wholly satisfactory, or efficient, government procedure.”3 Hẹ concluded that "such a program of improvisation clearly offers nothing for the

'W. Willard Wirtz, "The Challenge to Free Collective Bargaining," in Mark L. Kahn, ed., Labor Arbitration and Industrial Change, Proceedings of the Sixteenth Annual Meeting, National Academy of Arbitrators (Washington: BNA, 1963), p. 302.

Ibid., pp. 301-302. Ibid., P. 302.

1101

long-run future." The procedures followed in attempting to settle the railroad work rules dispute can be similarly characterized.

The railroad labor dispute over work rules was initiated on November 2, 1959 when the railroads submitted a series of proposals to the five railroad operating labor organizations. The proposals were concerned with the use of firemen on diesels, the basis of pay, the assignment of employees, and the consist of crews. On November 2, 1963, a special railroad arbitration board completed hearings on two issues-the firemen and new consist questions-and issued its award on November 26, 1963. The remaining issues, including proposals of the railroad labor organizations, were tentatively settled on April 22, 1964, subject to ratification procedures of the unions, by mediation under the supervision of the office of the President of the United States. The award of the special arbitration board, which was challenged in the courts by the labor organizations, was upheld by the federal courts, the Supreme Court denying certiorari on April 27, 1964.7

We have, in the railroad labor dispute, a classic illustration of what the Secretary of Labor has described as "maneuver" and "improvisation." The purpose of this article is (1) to describe the process of "maneuver" and "improvisation"; (2) to analyze why the procedures, both under the Railway Labor Act and ad hoc boards, have failed; and (3) to discuss the problem of governmental intervention in labor disputes. In view of the fact that this article is not concerned

'Ibid.

"See Railroads v. Operating Brotherhoods, 41 L.A. 673.

'New York Times, April 23, 1964. "Brotherhood of Locomotive Firemen and Enginemen, et al. v. Certain Carriers, et al., April 27, 1964, 84 S. Ct. (1964), p. 1181.

"MANEUVER" AND
“IMPROVISATION”

Since the inception of the dispute in November 1959, a number of procedures have been followed, some of which have been pursuant to the procedures of the Railway Labor Act, as amended, and others which have been "ad hoc" and outside of the provisions of the law.

It is unnecessary to describe in detail the procedures followed pursuant to law. These included, in the early phases of the dispute, the filing of notices by the railroad on November 2, 1959, and the filing of notices by the employee organizations on September 7, 1960. The usual conferences, as required by law, were held on the individual properties of the carriers as well as on a national basis. On October 17, 1960 the parties entered into an agreement which provided for the establishment of a Presidential Railroad Commission and which was subse quently created by executive order of the

"For the specific proposals of both parties, see Report of the Presidential Railroad Commission, Washington, D.C., February 1962, pp. 287-304. For a summary of these proposals, as well as the various recommendations made by different boards and individuals, see Report of the Com mittee on Interstate and Foreign Commerce, Railroad Labor Dispute, House of Representatives, 88th Cong., 1st sess., Report No. 713, pp. 8-12. (Hereafter referred to as House Report on Railroad Labor Dispute.)

President of the United States. An evaluation of the work of the Commission will be undertaken later. At this point it should be noted that, after the issuance of the Presidential Railroad Commission Report, the National Mediation Board entered into the dispute. Subsequently, the President of the United States created a statutory emergency board which issued its report on May 13, 1963.10 The formal, statutory intervention by the government took place despite the fact that the parties had agreed that "the proceedings of the [Presidential] Commission, including its mediatory efforts and its report, shall be considered and accepted as in lieu of the mediation and emergency board procedures provided by Sections 5 and 10 of the Railroad Labor Act."11

During the period between the issuance of the Report of the Presidential Railroad Commission and the report of the emergency board, the parties were involved in court litigation. The labor organizations sought to enjoin the carriers from promulgating changes in the work rules. After considerable legal maneuvering and litigation, the United States Supreme Court ruled "that the Railway Labor Act procedures had been exhausted" and therefore the proposed

'The agreement and executive order are reproduced in Report of the Presidential Railroad Commission, pp. 279-283.

Report to the President by the Emergency Board, Washington, D.C., May 13, 1963, Emergency Board No. 154. This report is reprinted in Hearings before the Committee on Interstate and Foreign Commerce, House of Representatives, 88th Cong., 1st sess., on H.J. Res. 565, Railroad Work Rules Disputes, 1963. (Hereafter referred to as House Hearings on Railroad Work Rules Dispute.)

"See Report of the Presidential Railroad Commission, p. 282. Apparently it was decided that private parties could not, by agreement, change the procedures required by law.

changes were "proper."12 It is important to note that the Supreme Court did not pass on the merits of the dispute nor did it question the good faith of the parties.13

Subsequent to issuance of the report of the emergency board, conferences were resumed between the parties. On June 1, 1963, the Secretary of Labor was advised by the parties of their inability to resolve the dispute, whereupon the Secretary of Labor, along with the National Mediation Board, intervened.14

For over a month, from June 4 to July 10, 1963, according to a statement by the railroads, about one-hundred meetings were held under these auspices.15 During this period a variety of events took place. On or about June 15, 1963, the President was advised by the Secretary of Labor that there was "no progress," whereupon the President obtained an agreement from the parties to maintain the status quo until July 10, during which time further bargaining was to take place. Various proposals were put forth during this period by the Secretary for the settlement of the dispute, without results. On July 3, 1963, the carriers announced that the revised work rules would be put into effect at 12:01 a.m. on Thursday, July 11. Again the Secretary, without success, made additional proposals for settlement. On July 9, 1963-one day prior to the deadline-the President of the United States proposed that the parties "agree to sub

"For a reproduction of the decisions of the United States Court of Appeals (310 F. 2d 503) and the United States Supreme Court (372 U.S. 284), see Hearings before the Committee on Commerce, United States Senate, Railroad Work Rules Dispute, 88th Cong., 1st sess., on S.J. Res. 102, pp. 302-324. (Hereafter referred to as Senate Hearings on Railroad Work Rules Dispute.)

Ibid., pp. 323–324.

"Ibid., p. 119.

18Ibid. The events set forth in this paragraph are taken from this source.

mit all issues in dispute between them for final settlement to Associate Justice of the Supreme Court Arthur J. Goldberg."1 The carriers accepted but the unions rejected the proposal. On July 10, 1963, on the eve of the deadline, the President created a special subcommittee of six persons, selected from his LaborManagement Advisory Committee, "to undertake, immediately, in full consultation with the parties, a comprehensive review and report limited to the facts and issues in this case and the respective positions of the parties." At the same time, the parties agreed to maintain the status quo until July 29, 1963.

The special committee issued its unanimous report on July 19, 1963.18 The committee, which consisted of two union representatives, two management representatives, and the Secretaries of Commerce and Labor, set forth the facts and positions of the parties with respect to eight issues.

On July 22, 1963-seven days before the next deadline-the President of the United States transmitted a special message to the Congress, in which he set forth the background of the dispute and made recommendations to Congress for legislation to dispose of the dispute.10 There were extensive hearings by the Senate Committee on Commerce and the House Committee on Interstate and Foreign Commerce. While these were in progress (1) the carriers were urged (and

19For the complete statement of the President, see ibid., pp. 337-338.

"For a complete statement of the President, see ibid., p. 339.

18 Report of the President on the Railroad Rules Dispute, by the Special Subcommittee of the President's Advisory Committee on LaborManagement Policy, Washington, D.C., 1963, reprinted in Senate Hearings on Railroad Work Rules Dispute, pp. 15-19.

This message appears in Senate Hearings on Railroad Work Rules Dispute, pp. 4-13.

eventually agreed) to withdraw their promulgation of the revised work rules until August 29; and (2) further negotiations and mediation took place, without success. The Congress, therefore, on August 28, 1963, approved a joint resolution which, in effect, called for the arbitration of two of the eight issues and for the further negotiation of the remaining six issues.20 The award of the arbitration board on two issues—the fireman and the crew consist questions—was challenged in the courts, and negotiations were carried on by the parties on the remaining six basic issues, with little success until the President of the United States intervened again and, with the assistance of two private mediators, brought about a settlement of the issues.

the

In this recital of events we observe that the Presidential Railroad Commis sion, after 96 days of hearings, a record of 15,306 pages of transcript, a total of 319 exhibits aggregating 20,319 pages, presentation of many visual exhibits, the preparation of 22 technical monographs by members of the Commission's staff as well as by outside consultants, and a large number of field inspection trips, failed to dispose of the dispute."

Similarly, the Presidential Emergency Board, which functioned primarily as a mediatory body, failed to produce a settlement. In fact, there appeared to be some disagreement among the members of the emergency board itself. The letter of transmittal states that two members (out of three) of the board "note their realization that there may be some differences of opinion as to the exact scope of the terminal procedures contained in

Public Law 88-108, 88th Cong., 1st sess., S.V. Res. 102. For a full discussion of the bill, see the Congressional Record of August 26, 27, and 28, 1963.

"Report of the Presidential Railroad Commission, pp. 16-19.

Section 6 of the Report, but express their confidence that procedures for the resolving of any such differences can be developed in the course of the negotiation period."22 Although this statement is relatively mild, it might be noted that it has significance, considering the delicacy of the entire matter.

Again, the extensive and intensive intervention of the Secretary of Labor also failed to produce any results, despite an illusory ray of hope when the Secretary of Labor announced on August 16, 1963 that "the carrier parties to the dispute accepted and the organization parties to the dispute accepted with certain reservations the Secretary of Labor's suggestion that the Firemen (Helper) and Crew Consist issues be resolved by binding arbitration...."23 This agreement to arbitrate the dispute collapsed when the parties did not agree on the specific terms of the arbitration agreement.

Further, the extensive hearings by both committees of Congress, in addition to informal efforts by congressional leaders,24 also failed to produce results. In addition, the intensive efforts of President Kennedy and the White House Staff were also unsuccessful. The award of the arbitration board has been unsuccessfully challenged in the courts. Eventually, the intervention of President Johnson produced a settlement.

Why did all these measures, except for the final Presidential intervention, fail? Why was the intervention of President Johnson successful? These are the

"Emergency Board Report No. 154, p. i.

"This appears in the preamble to Public Law 88-108 and is discussed in Report of the Senate Committee on Commerce, Railroad Work Rules Dispute, 88th Cong., 1st sess., Report No. 459, p. 9. (Hereafter referred to as Senate Report on Railroad Work Rules Dispute.) Italics added. "See Congressional Record, August 26, 1963, p. 15050.

questions with which this article is concerned.

THE PROCEDURES OF THE
COMMISSION

It is not necessary to document the assertion that the very existence of procedures for the resolution of collective bargaining disputes tends to destroy the process of collective bargaining itself, even though there might be a minority dissent from this conclusion. The fact is that the procedures under the Railway Labor Act, as amended, have been severely criticized because they have, in the past, failed to resolve disputes. One critic said recently:

the emergency board procedures of the Railway Labor Act have grown increasingly formal, cumbersome, expensive, and unproductive. The nature of presenting the case to the board is as stylized as the courtship dance of the great crested grebe. The board, immobilized by hours of hearings during which prepared testimony is literally read into the record and smothered by an avalanche of printed exhibits and briefs, has no time for open, forthright mediation; at best it can make only a few tentative, sometimes clandestine, efforts to bring the parties together. Genuine collective bargaining seldom begins until after the board's report and recommendations have been released. The latter are invariably denounced by one or both sides; nevertheless, they have usually provided the basis for the eventual settlement.25

The present writer concluded, in an analysis of the emergency board pro

Benjamin Aaron, "Observations on the United States Experience," Labor Law Journal, August 1963, p. 747. See also Jacob J. Kaufman, "Emergency Boards Under the Railway Labor Act," Labor Law Journal, December 1958, pp. 910-920, 949. The author has, in the preparation of this portion of this article, with the kind permission of the publisher, relied on some passages of his review of the "Report of the Presidential Railroad Commission" published in 48 Cornell L. Q. 594 (1963).