purposes). It must pay the bills and provide other services. This raises legal questions as to the nature of a board of inquiry. Of course, the individual members are federal employees, albeit special employees within the definition of that term in Title 5 of the United States Code,180 However, the relationship of the board as an entity

to FMCS is less than clear.

On the face of the statute, members of the board of inquiry are responsible directly to the President, keeping in mind that the Presi dent, in another statute, has ample authority for delegating responsibility. 181 However, the actual operation of a board may be to some extent controlled by the requirements that the Federal Mediation and Conciliation Service must pay its bills, provide for compensation of the board members, and supply services and personnel to assist the board in the performance of its functions. Under these circumstances, what control, if any, is appropriate for the Federal Mediation and Conciliation Service to assert over a board of inquiry? In the case of an intransigent board of inquiry, what could the Service do to delimit the scope, duration, or nature of its investigation? These questions are raised without regard to certain practical answers which may inhere in the system. Whether or not they are more than academic questions, it would be helpful to know how they could be met or avoided under present law, if any problem of a "runaway" board did occur. Moreover, in any revision of Title II, it seems that they ught to be anticipated and resolved by the

statute.

Contemporaneous construction of a statute is generally considered to have great weight in determining its meaning. When administrative practices of long standing conform to the contemporaneous construction, the weight to be given the interpretation becomes stronger. It can also be argued that when Congress ap propriates funds for the administration of a program by an agency, particularly with full explanation of the method of operation intended, and continues over a period of years to so appropriate funds, it has confirmed and ratified the executive action.182

180 60 Stat. 810 (1946), 5 U.S.C. § 55 (a) (1964); 60 Stat. 808 (1946), 5 U.S.C. § 73 (b) (2) (1964). See also 18 U.S.C. § 202 (1964).

181 3 U.S.C. § 301 (1964).

2 See Fleming v. Mohawk, 331 U.S. 111, 116 (1947); Brooks v. Dewar, 313 U.S. 354, 361 (1941); Isbrandtsen-Moller Co. v. United States, 300 U.S. 139, 147 (1937); Wells v. Nickles, 104 U.S. 444, 447 (1882). But see Greene v. McElroy, 360 US 474, 505-07 (1959) (hearing procedures). Congressional ratification cannot be im plied from continued appropriation of funds to finance activities (hearing procedures) where the description of the activities is insufficient to constitute notice to Congress of

184

With these concepts in mind, the following materials were examined: (1) the first and second reports of the Federal Mediation and Conciliation Service for the fiscal years 1948 and 1949;18 (2) selected appropriation hearings for Federal Mediation and Conciliation Service budgets;' (3) the appropriation bills for that agency from 1949 to 1963;15 (4) the report of the Joint Committee on Labor Management Relations, 1G pursuant to section 401 of the Taft-Hartley Act; and (5) hearings related to such report.17 The reports, along with selected hearings and debates on S. 2491 were also scrutinized. Senate Bili 249 was a bill intended to rewrite the Labor Management Relations Act of 1947.

188

186

There have been other attempts at major revisions and amendments of that act, notably in 1953. However, somewhat arbitrarily, the exploration has been limited to the materials from the 81st Congress, with the exception of the Federal Mediation and Conciliation Service appropriation bills. Post-1949 interpretations can hardly qualify as "contemporaneous" with the statute enacted in June of 1947, although discussions during subsequent attempts to amend the act would contribute to the establishment of the "continuousness" of an interpretation.

190

(i) FMCS Filling the Procedural Gaps.-The first annual report of the Federal Mediation and Conciliation Service, as a preface to the summary of the disputes during 1948 which had occasioned the use of sections 206-210, reported that the service had reluctantly played a more active role in the settlement of disputes than the language of the act required.

191

their nature. While FMCS reports and the three early reports (two in 1948, one in 1951; see discussion of § 210- the President and Congress infra p. 215) of the Presi dent to Congress on national emergency disputes referred to boards of inquiry, they did A sufficiently describe board procedures to provide any basis for ratification.

153 1948 & 1949 FMCS ANN. KEPS.

184 See authorities cited notes 212-13, 215, 218 infra.

185 See authorities cited note 224 infra.

186 S. REP. No. 986, 80th Cong., 2d Sess. (1948).

17 Hearings Before the Joint Committee on Labor-Management Relations, 80th Cong., 2d Sess., pts. 1-2 (1948).

188 Hearings on S. 249 Before a Subcommittee of the Senate Committee on Labor and Public Welfare, 81st Cong., 1st Sess., ser. 49, pts. 1-6 (1949).

189 81st Cong., 1st Sess. (1949).

190 1948 FMCS ANN. REP.

191 Id. at 40-59. This report states:

The congress imposed no special statutory duties upon the Service in the national emergency provisions of the act (§§ 206-210) other than to assist the parties in reaching a settlement in national emergency disputes (S 209(a)). However, the experience of the Service with the background of

194

The summaries of the several instances in which the procedures were used during 1948 contain evaluations of the effectiveness of the procedures. Those cases were the atomic energy dispute,192 the meat packing dispute, 193 the first bituminous coal dispute, the telephone dispute (long lines),105 the maritime dispute,19 the second bituminous coal dispute,197 and the longshore dispute on the Atlantic coast. Since this article is primarily concerned with powers, procedures, and functions under the law, "effectiveness" will be left for another day.

198

Suffice it to note here that the Service expressed reluctance to

such disputes, the issues involved and the positions of the parties thereon, and its knowledge of facts required by other agencies of Government called upon to perform functions prescribed by the national emergency provisions, have made it necessary for the Service to play a more active role in the adminis tration of those provisions than appears to be required by the language of the act. The Service plays this role reluctantly, because it is fully aware of the fact that its value to the public as a mediation agency should not be jeopardized by any activity associating it with law-enforcement provisions. On the other hand, it was clear that if the national emergency provisions of the act were to be given practical, realistic and efficient administration, in order that the national safety and health might be protected, it could not withhold from other agencies of Government that administrative and infor mational assistance which they requested.

Thus, the Service is called upon, with respect to labor disputes it is engaged in mediating, to furnish information to the President, boards of inquiry, and the Attorney General, all of whom have duties to perform under the national emergency provisions of the act. It should be emphasized that the Service scrupulously refrains from participating in the decision or policy making of such other agencies of Government and restricts its assistance to them to the furnishing of information.

It is evident that the central position occupied by the Service in national emergency labor disputes, before and uuring the injunction period and even after the discharge of the injunction, qualify [sic] it perhaps better than any other agency of Government excepting the Chief Executive, to report on the disputes which occurred during the past year. In view of the fact that no other agency of Government has the responsibility of making an over-all report of this character, the Service will undertake to do so as briefly as possible.

In recounting events which occurred in the national emergency disputes discussed in this report, the Service should not be understood to be assessing blame or responsibility on either unions or employers or their representatives, for acts committed, damage done, or failure to take any particular course of action. It is no part of the duty or authority of the Service to do so. In this account the Service has endeavored to restrict itself to facts which were given publication in Government documents, to private publications of news and to other sources which were, more or less, matters of public knowledge. Id. at 40-41.

192 Id. at 41-42.

193 Id. at 42-43.

194 Id. at 43-45.

195 Id. at 45-46.

190 Id. at 46-49.

197 Id. at 49-51.

198 Id. at 51-54.

engage in any activity associating it with the law-enforcement procedures and refrained from participating in the policy-making or decision-making of the other agencies (i.e., the President, the boards of inquiry, and the Attorney General). However, from a practical rather than a legal point of view, it did interpret the statute to require the Service to supply other agencies with information.199 As indicated earlier, the President could direct the Federal Mediation and Conciliation Service and other agencies to supply boards of inquiry with information. However, the Service, because of its central position, undertook to fill the void with respect to the overall reports on national disputes activity.2

200

In the summary of experiences, the first annual report of the FMCS asserts that Congress attempted for the first time a "rather detailed exposition of the duties and activities"201 of such a Service. Noting that one year provided an insufficient basis for legislative recommendations, the Director evidenced his intent to be prepared to make such recommendations when called upon. He then noted that it is the function of an annual report to bring matters which may warrant consideration and study in connection with further legislation to the attention of Congress, and set forth observations202

199 See text accompanying notes 61-71 supra, dealing with subpoena powers. 200 No doubt other related agencies also undertook to "fill the void." See, e.g., U.S. BUREAU Of Labor Statistics, Dep't OF LABOR, BULL. No. 963, WORK STOPPAGES CAUSED BY LABOR-MANAGEMENT DISPUTE IN 1948, at 23-25 (1948); U.S. BUREAU OF LABor Statistics, Dep't of Labor, Rep't No. 169, NATIONAL EMERGENCY DISPUTES UNDER THE LAbor ManagemENT RELATIONS (TAFT-HARTLEY) ACT 1947-1962 (rev. 1963).

201 1948 FMCS ANN. REP. 54.

202 1948 FMCS ANN. REP. 55-58:

Boards of inquiry.—The current provisions of the act (§ 208(a)) make the submission of a report by a statutory board of inquiry a condition precedent to the President requesting the Attorney General to apply for an injunction. If the dispute threatens a national stoppage of critical proportions, it becomes necessary for the President to appoint the board a sufficient period of time in advance of the deadline date in order to afford it an opportunity to convene, to investigate, to hold hearings, to prepare and submit its report, and to give the Attorney General a reasonable opportunity to apply to the courts for an injunction in anticipation of a stoppage. Experience under the current provisions demonstrates that approximately 10 days to 2 weeks is required, as a minimum, to enable boards of inquiry satisfactorily to perform their statutory duties in most national emergency situations.

The Service has found that appointment of a board of inquiry in advance of a stoppage deadline and the scheduling of hearings before such a board, has the effect of interfering with the collective bargaining of the parties, particularly in relationships in which it is traditional not to reach a settlement until the eleventh hour. Mediation cannot be performed effectively when either the representatives of the Service or of the parties are before a board of inquiry, or when the parties await the report of the investigations of such a board. Further, the record will disclose that the relatively short

relating to national emergency disputes for the attention of Congress in its review of the law.

It would at least appear that both the Director of the Federal Mediation and Conciliation Service and the Secretary of Labor

period of time afforded to such boards to investigate the facts relevant to a dispute has exposed them to criticism and has afforded them insufficient time to operate at maximum efficiency and effectiveness.

Experience has also demonstrated that despite the great national importance of several disputes, relatively l:tle publicity was given to, or public notice taken of, the reports of boards of inquiry. This may have been due to the fact that these boards were forbidden to make recommendations which might reasonably be expected to be given wide publicity, and restricted themselves to an exposition of the issues in controversy and the positions of the parties thereon. Although the facts relevant to a dispute may not have been known in the detail in which they were set forth in the reports of the boards of inquiry, it is believed that they were generally matters of public knowledge. Apparently the Congress required board of inquiry reports to be submitted and made public because of the desirability of mobilizing public opinion behind a settlement of the controversy. This desire has not been fulfilled to a satisfactory degree.

It should also be observed that under current provisions of law, if the Federal Mediation and Conciliation Service does not make a public recommendation of settlement (a procedure it will normally refrain from adopting be cause nonacceptance of its recommendation might destroy its future usefulness to the parties) a dispute might well run the 60-day period prior to the deadline date and the 80-day period of the injunction - a period of 20 weeks without any public recommendation of settlement calculated to bring public opinion to bear on the parties.

Use of the injunction.—It is the experience of the Service that in some of the national emergency disputes occurring in the last year the issuance of an injunctive order did much to forestall a national crisis and to assist in achieving a peaceful settlement. Similar claims for the utility of injunctions, such as are provided in current law, as a means of protecting the national welfare, cannot be made in respect of other national emergency disputes. Indeed, the final report of the board of inquiry in the maritime dispute involving the Pacific coast longshoremen's union observed that the employers and unions in that dispute regarded the injunction period as a "warming up" rather than a "cooling off" period (p. 27). National emergency disputes vary widely in their facts and circumstances, and it is unlikely that any machinery can be devised that will guarantee satisfactory handling in all situations.

One of the conclusions which the Service is undoubtedly justified in drawing from its experience of the last year is that provision for an 80-day period of continued operations, under injunctive order of a court, tends to delay rather than facilitate settlement of a dispute. Parties unable to resolve the issues facing them before a deadline date, when subject to an injunction order, tend to lose a sense of urgency and to relax their efforts to reach a settlement. They wait for the next deadline date (the date of discharge of the injunction) to spur them to renewed efforts. In most instances efforts of the Service to encourage the parties to bargain during the injunction period, with a view to early settlement, falls on deaf ears. Further, the public appears to be lulled into a sense of false security by a relatively long period of industrial peace by injunction and does not give evidence of being aware of a threat to the common welfare which would produce a climate of public opinion favorable to settlement. Whether this experience dictates the desirability of a shorter injunction period or an injunction period of indefinite duration, the Service expresses no opinion at this time.

Last offer ballots (§ 209(b)).—In every national emergency dispute to