305 inous coal industry304 and the introductory sentence of his message to Congress is exactly the same. The President's report on the labor dispute in the nonferrous metal industry in the message to Congress, February 14, 1952, also begins in exactly the same way. In the report on the bituminous coal industry, both of the coal disputes of 1948 are covered. In none of these instances was there a resumption of the strike after the expiration of the injunction, although in the 1948 atomic energy dise, the settlement was not reached until four days after the injunction was dissolved. In the 1951 nonferrous metal dispute, the strike ended four months before the President reported to Congress. Thus, although it is often suggested that the Presidential report to the Congress is to be made only if the dispute is unsettled after the procedures have run, in the three earlier instances in which a report was filed by the President, the disputes had ended prior to the filing of the report, and in no instance was there any strike activity after the injunction expired. The fourth instance of a Presidential report on an emergency dispute 30 is in a recent dispute in the maritime industry. It is interesting that in this dispute the injunction was dissolved on the 25th of September, but the effective date of the injunction was the 21st of September, which was the eightieth day of the cooling-off period. This was an instance in which the NLRB certification of the election was not filed with the Attorney General until the eightieth day. Here again, there is no indication of any strike activity following the dissolution of the injunction, and the President's report to Congress indicated that all the disputes had been settled by the time the report was filed. On the basis of experience, there would seem to be no rational explanation for the filing of reports by the President with Congress in some instances and the failure to file such reports in others, except that after the dispute has been disposed of, the impetus to perform administrative actions, though clearly commanded by the statute, is diminished. In addition, there being no agency with central responsibility for attending to the details of the procedures under sections 206-210, of the LMRA, it is always easy to assume that some other agency legitimately involved in the activity is performing the particular function. A further and perhaps more practical explanation is that even though a statute commands or uses 304 See H.R. DOC. No. 738, supra note 301, at 1. 305 H.R. Doc. No. 354, 82d Cong., 2d Sess. 1 (1952). language of command directed toward the President, who is to enforce this command? Also, what is the point of the filing of a report that would be primarily a chronology of events with perhaps the various reports of the board of inquiry and the certification of the NLRB attached, if there is no intention to suggest any legisla tive action to Congress? There is one reason, perhaps insignificant in terms of practical effect, which is that the statute directs that the act be done. Compliance with the statute presents no substantial difficulty and failure to comply by the august office of the President contributes to a climate which makes disregard of the law in more substantial things easier to excuse. VI. SUMMARY AND CONCLUSIONS Title II of the Taft-Hartley Act, which received advanced billing as the provisions for the settlement of labor disputes, is a mixed bag of fragmented devices and incomplete theories, some of which are at war with each other. The scheme of the settlement producing device is concocted of six basic elements, all of which depend in varying degrees upon the force of public opinion for their effectiveness: (a) Presidential action heralding a national emergency and appointing a board of inquiry; (b) an initial board report aimed at the parties through the public; (c) an injunction and cooling-off period; (d) a second board report, again to be made public, including the employer's last offer; (e) employee balloting upon the last offer with the threat of employee rejection of the union leadership; and, (f) discharge of the injunction, with a Presidential report to Congress transmitting the prior reports of the board of inquiry and his recommendations for remedial action. The theory underlying this device misjudges the power of the various publics307 upon which it relies and the effectiveness of the devices provided to mobilize those opinions. The design is an inept one. At the outset, the grand promise of the declaration of policy is not sufficiently implemented in the specific grant of functions to the Federal Mediation and Conciliation Service. The operative language of the agency's authority depends upon "disputes" which clouds the mandate for "preventive mediation" - by far the most promising of the Service's activities.808 307 (1) The general public through the news media, (2) the peers of the party disputants, (3) union members, and (4) members of Congress. 308 LM.R.A. S 201 (c), 61 Stat. 153 (1947), 29 U.S.C. § 171(c) (1964). This section promises adequate governmental facilities for assistance inter alia in avoiding The policy pronouncement looks to the advancement of collective bargaining by making available full and adequate governmental facilities for arbitration, as well as concilation and mediation. The provision regarding the functions of the Service avoids including arbitration as one of the specific devices to be recommended by the Director. It does include the last offer ballot, a device not noted for its contribution to sound and stable industrial peace. It is suggested that arbitration of grievance disputes, as opposed to new contract terms and interest disputes, is to be encouraged. However, the term "arbitration"309 is avoided in the language. Then there is the command of the statute in section 204 that the parties bargain in good faith. It seems to be a nonenforceable duty — a conceptual conflict; and any enforcement attempt would raise questions of consistency with the exclusive jurisdiction of the National Labor Relations Board. The duty, which smacks of surplusage when considered with section 8(d), is repeated in part in different language in section 209. Other than its general disuse, one comment only on section 205 - it fails to reflect, particularly where the general welfare of the country might be affected by controversies, that four distinct interests might warrant representation: labor, management, government, and some neutral representatives of the "public interest." It is suggested that representatives of the government, particularly if they come from dispute-settlement-oriented agencies, may have a certain parochialism which will manifest itself in a view that may differ from the disinterested "objective" view of a knowledgeable neutral. Although the procedures for settlement of national emergency disputes begin with section 206, section 202(d) is most relevant to a discussion of the defects built into the statute. First, the attempted insulation of the Secretary of Labor and the White House from major labor disputes by establishing an independent Federal Mediation and Conciliation Service was a misunderstanding of the essentially political nature of dispute settlement by government in tervention. Second, there was a failure to appreciate that the governmental structure, with the Secretary of Labor as the only cabinet level of controversies and also working out contracts to prevent subsequent controversies. These are policy "pegs" for preventive mediation, but in specifying duties and functions, the statute fails to be expansive enough. 309 See L.M.R.A. § 203 (c), 61 Stat. 154 (1947), 29 U.S.C. § 173(c) (1964). Compare L.M.R.A. $ 203 (d), 61 Stat. 154 (1947), 29 U.S.C. § 173(d) (1964). ficial for labor affairs, would ultimately dictate the involvement of the Secretary in any substructure (ie., statutory dispute settlement machinery) which involved the President. Third, there was a failure to anticipate that the political pressure toward, and political value of, settling major labor disputes would make it nearly impossible for an active Secretary of Labor to refrain from involvement. Consequently, the statute creates practical prob lems for the President in securing and retaining either an able Secretary of Labor or an able Director of FMCS, or both.310 It is not suggested that the problem is insurmountable, but it is merely pointed out that it is a "personnel problem" which the statutory scheme foists upon the President and his executive family. The attempt to remove the Secretary from the dispute settling arena was an abortive one. It failed to remove the Secretary's authority to investigate the causes of and facts relating to all controversies between employers and employees as they may occur and which may tend to interfere with the welfare of the people of the different states.311 Admittedly, since the passage of the Taft-Hartley Act, this specific investigative function was lodged in the Commis sioner of Labor Statistics. But the 1950 action transferring all func tions of other Departmental officers to the Secretary, which is more recent than the Taft-Hartley Act, leaves little doubt about the Secretary's legal authority. Moreover, the President is authorized to delegate to officials appointed with the advice and consent of the Senate any function that is vested in the President by law.312 The act did not limit any existing right of the President to delegate, but wholly excluded from its scope any presidential functions which are by statute affirmatively prohibited from delegation.313 Under this statute, even some matters of judgment or discretion were intended to be subject to delegation,314 It would be simple for the President to delegate the functions 810 Former Secretary James P. Mitchell, who viewed the FMCS as a part of his do main despite the Taft-Hartley Act, related that upon being approached regarding his interest in being Director of FMCS he indicated that he would only consider the job with the absolute assurance that the entire dispute-settling activity would be under his jurisdiction. (Interview, in San Francisco, Aug. 17, 1964). 25 311 Act of June 13, 1888, 25 Stat. 183, as amended, 29 U.S.C. § 4 (1964), amended by Reorganization Plan No. 6, 63 Stat. 1069 (1949), 5 U.S.C. § 1332-15 (1964). 812 3 U.S.C. §§ 301-03 (1964). 313 See 2 U.S. CODE CONG. & AD. NEWS 2931 (1950) (legislative history). 814 Id. at 2932; but see, 35 OPS. ATT'Y GEN. 17, 19 (1925). committed by the Taft-Hartley Act to presidential action to his Secretary of Labor. This would still comply with the strictures of the Taft-Hartley Act regarding the freedom of the Service from the jur isdiction and authority of the Secretary of Labor, yet formally provide for cabinet level coordination of national emergency disputes activity. 315 316 If the "opinion" of the President is the "triggering" device for the emergency procedures, the statute failed to indicate who supplies the "cartridge." The attempts by the government lawyers, aided and abetted by the courts," to convert presidential expression of an opinion and consequent action to a "finding" of legal significance, emphasizes the theoretical conflicts of the device. Since the statute provides no transmission belt between the President and FMCS, although practice has supplied one, it leaves the basis for the President's opinion, or finding, dangling in mid-air. The board of inquiry and its investigation comes after the President's first action, and the board is the only entity supplied by the legislature with the power (subpoena) to assemble those facts upon which that action ought to depend. But the statute317 does not give to the board the function of determining the existence of a threat to the national health or safety. Since there is little evidence of factual requirements before appointing a board, logic has led many boards, with or without a request from the government, to make findings on that issue. Rarely, however, have such boards solicited information from the government departments that would be in the best position to assess the threat to national health or safety before making initial reports. Any such solicitation, usually by the Department of Jus tice, has generally occurred during the preparation of, or after, the initial report and is done in connection with the government's litigation. It is assembled after the decision on the threat to the health or safety has been made and is rarely considered in making that judgt.318 This makes the information supplied by departments subject to the charge that it is self-serving. ment. 315 Informal coordination by the Office of the Secretary has been publicly acknowl edged. See, e.g., Steel Dispute, 1959; Maritime Disputes, 1961, 1962. 316 See, e.g., United Steelworkers v. United States, 361 U.S. 39, 48 (1959) (Frankfurter, J., concurring); United States v. National Maritime Union, 196 F. Supp. 374, 381 (S.D.N.Y. 1961) (finding of fact No. 3). Subsequent to Steelworkers, the Government's complaints and memoranda in support thereof allege that the President's ac tion is a "finding." 317 L.M.R.A. § 206, 61 Stat. 155 (1947), 29 U.S.C. § 176 (1964). 318 See United Steelworkers v. United States, 361 U.S. 39, 48 (1959). There, the concurring opinion asserts that the President's judgment was presumably based upon the affidavits of his Cabinet officers. The presumption was unwarranted. |