tiable. Since neither side would accept the pre-conditions of the other, effective negotiations could not proceed.

It seems elementary that these negotiations did involve the public interest. Like a Greek tragedy, events were moving the country inevitably to a virtually complete stoppage of production in one of the most basic industries. It would be farfetched to say that there was no public interest in such negotiations. The kind of bargaining initiated after the creation of a public emergency might well have been carried on before a critical state had been reached if there had been a compelling reason, and perhaps some strong pressure, for the parties to do so. A need for more effective preventive measures seems apparent. But, is there any procedural rule that would perhaps induce the parties fully to utilize private negotiating procedures and, thus, hopefully do everything possible to prevent a national emergency from arising? One possibility that comes to mind is, long before the day of crisis, to provide for a Board of Public Accountability charged with the responsibility of reviewing the manner in which the parties are meeting their collective bargaining responsibilities.

BOARD OF ACCOUNTABILITY Such a Board of Accountability would represent essentially a modification of the generally accepted idea that mediation is an adjunct to a rather exclusively private negotiation. An extension of the role of mediation along these lines would be consonant with expressed national policy. As stated in Section 201 of the Taft-Hartley Act, it is the policy of the United States to recognize collective bargaining and to advance the effectiveness of this process "by making available full and adequate governmental facilities for conciliation, mediation and voluntary arbitration to aid and en

courage employers and the representatives of their employees to reach and maintain agreements. . . ." Implementation of this policy is the indicated course to follow. "Adequate governmental facilities" to encourage private agreement-making would seem to require an extension of the mediation concept explicitly to encompass a Board of Public Accountability to encourage the parties precisely to define the issues and to work at their reconciliation. This is a sort of public mediation as distinct from the traditional private mediation. A case can be made to show that negotiation procedures are not entirely of private concern if their failures can precipitate a national emergency. There should be, moreover, an avenue of information to the public beyond the private fact-finding by means of such advertising as the parties may deem appropriate.

USE OF RECOMMENDATIONS

The second question here singled out for consideration is whether or not a public board appointed by the President in a public emergency dispute should be estopped from making any recommendations even in the most persistent public emergency dispute. The duties of a Board of Inquiry are specified under Section 206 of the TaftHartley where it is provided that the report of the Board to the President "shall not contain any recommendations." This seems to reflect the view that recommendations would be an undue governmental intrusion into an essentially private negotiation. Many persons who have had public responsibility for dealing with the emergency disputes area. the writer included, have long been averse to such an intrusion. Since there are few, if any, criteria for reaching sure conclusions by reference to universally accepted, objective standards, the issuance of more or less authoritative

recommendations represents a degree of arbitrary imposition. A staunchly held position of one party or the other could be weakened while the objectives of the other could gain support as a result of recommendations. In addition, if a recommendation could ultimately be anticipated, one party or the other might feel impelled to seek it in order to gain an advantage. In other words, the In other words, the availability of recommendations by a governmental agency could possibly encourage an additional tactical step in the bargaining process. In consequence, the negotiation process prior to the issuance of recommendations could be enervated. It is frequently said nowadays that this is just what has happened in the railroad industry-that collective bargaining does not begin in earnest until after a Presidential Emergency Board has made its recommendations. Contending that such recommendations tend to become a floor for collective bargaining rather than the basis for negotiating a settlement, representatives of the railroads have expressed the view that the findings of the public board should have the status of compulsory arbitration awards.

Despite numerous possible disadvantages, there are also some potential values in having recommendations made by a governmental board in some emergency disputes. And, perhaps, the disadvantages can be minimized. In any event, the recommendation approach is surely more consonant with the basic principles of life in our kind of democracy than is compulsory arbitration. Agreement would still be required where recommendations are made and, in itself, this embodies an important restraint upon those making the recommendations in the first place. The restraints would likely be of lesser magnitude under compulsory arbitration. If so, this is a critical difference.

The question remains. Can the rec

ommendation device be utilized without enervating collective bargaining, that is, can the possibility of its tactical uses in negotiation be minimized? This suggests the need for a high degree of uncertainty about whether or not a board in a particular case would be accorded the authority to make recommendations. If prior collective bargaining operates to bridge the differences between the parties to a considerable extent, the risks as a result of recommendations or of voluntary arbitration, for that matter-are correspondingly minimized. The aversion of one party or the other to the procedures of recommendations, or of voluntary arbitration, would seem to be greatest when the issues have not been narrowed at all and when there is even a possibility that differences may be further widened by the activities of outsiders. There is a good chance that the operation of a Public Board of Accountability in ways previously described would actually result in a narrowing of differences and thereby make more acceptable the use of recommendations or of voluntary arbitration as a final resort. A defined course through which a public board might secure the power to recommend in a particular case could, in itself, possibly strengthen the mediation efforts of the government agencies involved. This could be the case if either direct settlement or an agreement for voluntary arbitration should appear to be preferable to a recommendation. Also involved would be the intensity of the desire to preserve the private nature of agreement-making even regarding an area where the public interest is so pronounced.

VOLUNTARY ARBITRATION

A virtually unexplored field is that of recommendations for voluntary arbitration in specific terms as distinct from recommendations as to the substantive

terms of employment. It is customary for mediators in persistent disputes to suggest voluntary arbitration as a very general proposition. To a large extent this becomes a pro forma step because the suggestion is not often taken up by the parties, and the details never get filled in. That ends the matter as long as the private aspects of the negotiation dominate rather than the public interests. Perhaps a greater attention could be given to the possibility that a mediating agency could recommend in specific terms the use of voluntary arbitration in the public interest. The proposed terms of arbitration would include a precise statement of the issues to be resolved, a panel of persons from which a selection of arbitrators could be made, and other pertinent details. The implicit question to the parties would be: why should a public emergency work stoppage be deemed preferable to arbitration along the specific lines suggested?

Whatever might be said about the undesirability in a public emergency dispute of outside recommendations— whether for a specific type of voluntary arbitration or regarding substantive terms of employment-the certainty that no recommendations can be made under any circumstances can impede the

mediation upon which, to an overwhelming extent, the public interest depends. One way of strengthening mediation would be to spell out the circumstances under which a governmental board could request and be granted the authority to make recommendations in a particular case after other available efforts to secure an agreement had failed. If the public interest is to be effectively recognized, some modification of the concept of negotiations as a private matter is unavoidable.

The possibilities of using, in public emergency disputes, a Public Board of Accountability and, further, of providing for a grant of authority to a governmental agency to make recommendations in a particular case are related to the most recent experience in trying to deal effectively with this kind of a dispute. These proposals are set forth with no idea that through such devices the problem of public emergency disputes will be solved. But, there ought to be some better way than what is now available. It should not be too much to hope that by an exercise of social inventiveness we will be able to move forward in dealing with critical disputes by developing more effective ways and means that are also consonant with the American way of life.