the President with the power to seize the railroads as a way of preventing a nationwide strike. In all probability, organized labor would not have been unfriendly to such legislation.

Some Progress Evidenced in
Voluntary Arbitration in
Other Transportation Industries

Real progress has been made in the last few months with respect to voluntary arbitration being effectuated in new airline and maritime contracts. A recent agreement between Pan American World Airways and the Brotherhood of Railroad Clerks provided that binding arbitration will be substituted for strikes in future disputes. Pan Am also signed no-strike arbitration pacts with the FEIA and the United Plant Guard Workers of America. Secretary Wirtz hailed the agreements as "collective bargaining at its best." Under the airline pacts, disputes will first be negotiated under procedures laid down by the Railway Labor Act. Unresolved issues will then be submitted to binding arbitration by a three-man board representing management, labor and a neutral

third party.

Labor-Management Education

Education may be the answer. Recently representatives of Trans World Airlines and three labor unions met with a labor relations expert in a seminar on how to avoid strikes. At that meeting, Professor Nathan P. Feinsinger stated "contract negotiating is a year long process; if unions and management wait they are likely to work into strike deadlines, but both parties should look ahead and gather data to solve the problems they anticipate." Feinsinger indicated that it is impossible to lay the groundwork for intelligent determination during the

"Report of the Presidential Railroad Commission, cited at footnote 1, at p. 184.

required 60-day negotiating period. This new approach has already proved its worth in the steel industry through the Industry Human Relations Commission as well as in Kaiser Steel with its tripartite board.

To quote from Chapter 13 of the Railroad Commission's Report:

"On the side of management, there is need for considerably greater attention to management development and training. Most railroads have lagged far behind the practices of other large-scale American industry in this respect. Despite the considerable progress that has been made by some carriers-and we have come to know that there is more vigor in management organization that we suspected at the outset-we are strongly of the view that a major task needs to be done in the industry in organizational building or rebuilding and management training and development. There is one other feature of management organization that is of central concern-the way in which the labor relations function is organized within the management of the separate carriers. Far too few first line supervisors, and even those further up the line, exercise authority to settle grievances and disputes." 70

Compulsory Arbitration Award in Rails May Be Obstructed by State Courts

Despite the fact that the arbitration panel, in theory, displaced 90 per cent of the firemen, the railroad carriers will continue to face a battle at the

state level with state laws such as the "full crew" laws. This will require a fight by railroads in each state and should be considered at this time when discussing the entire rail work-rules problem. Sixteen states have laws specifying the size of train crews. In

seven other states, public utility commissions are empowered to regulate crews. In Ohio, for example, carriers must maintain a five-man crew in a diesel cab: an engineer, conductor, fireman and two brakemen. Many states which do not have such statutes

The present work rules crisis stems from an absence of true collective bargaining both in spirit and actuality. For too many years, there has been an overreliance on government mechanisms and government controls.

The President's Rail Commission

laws.

Conclusion

The experience with the Railway Labor Act raises a very serious question. Can the government control collective bargaining without being forced into a position of complete authority? At present the emergency board procedure causes a stoppage of bargaining until the board is activated. Then, after the board makes its report, there are new negotiations, concessions and even mediation. On the fireman issue, the government has gone as far as compulsory arbitration, and even this is not final since the unions are appealing the award to the federal courts.

"Presidential Railroad Commission, cited at footnote 1, at p. 186.

continuing joint machinery to insure that the transition to a new state of affairs in the industry proceeds smoothly and expeditiously." "

Certainly there is good precedent for working together. On October 8, 1963, President Kennedy signed into law a bill to shore up the weakened Railroad Retirement Fund. This bill now requires unions and railroads to pay the fund an additional $35.5 million annually. Carriers and brotherhoods worked together to secure legislation strengthening this fund. Labor peace in railroads would also accrue to the mutual benefit of the parties. [The End]

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

HESE four lines from Swinburne were

THESE

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 con

clusions-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, 1963.5 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.

with the merits of the dispute, it is sufficient to state simply that the issues in the dispute are concerned with various aspects of the employment of firemen in freight and yard service, the consist of crews, interdivisional runs, combination of road and yard service, manning of sel propelled machines, wage structure and fringe benefits, employment security, and training.8

"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 subsequently 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 Representa tives, 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.

10 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.

141bid., p. 119.

181bid. The events set forth in this paragraph are taken from this source.