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type of railroad strike. That consideration is a necessary ingredient in explaining the difference in the government's role in the firemen's issue as compared, for example, to the airlines strike in the summer of 1966. In the latter situation the strike, to be sure, was of great inconvenience and troublesome, but it was still short of intolerable to the public at large. To avoid the trap of public intolerability in the future, the firemen's union-even if in some kind of merged form with other unions-will tend to seek negotiations on a carrier-by-carrier basis instead of on a national or even regional basis. In that way, by being less visible publicly, it may hope to use the strike weapon while avoiding compulsory settlements through government intervention. The historic trend of broadening the geographic scope of bargaining in the industry will be under pressure of reversal.

The government and collective bargaining. The entire development of the firemen's issue illustrates the government's application of what might be termed the "Hippomenes formula." In Greek mythology Hippomenes won the race against swift-footed Atalanta by intermittently tossing aside some golden apples. She paused to retrieve the apples and lost the race, but at least retained what she retrieved. In the case at hand, the Carriers would have preferred to have all firemen's jobs subject to their unilateral disposition. Then the government came into the picture: The Rifkind Commission proposed a guarantee of jobs for firemen with ten or more years of service; next, the Rosenman Board

added the provision on comparable jobs for those with two to ten years of service; finally, the Seward Board added the 10 per cent-veto provision on the blanking of jobs. To be sure, all of these considerations could not obtain the acquiescence of the BLFE

as an organization to the compulsory resolution of the firemen's issue. But at least the job guarantees and severance allowances assuaged the feelings and served the needs of a great many firemen who were affected.

But the Hippomenes formula has some side effects which bode ill for the future of collective bargaining as an institution. Once the likelihood of government intervention of an extraordinary kind is established, the parties in dispute will tend to "discount" the future application of the formula. Management will hold back from making concessions so as to preserve something of value for government boards to recommend or award; whereas organized labor will not agree to terms until, in its calculation, it has reached the level of public intervention where benefits proffered by third parties are at a maximum. It may well be, of course, that genuine collective bargaining cannot be preserved in any case where strikes as a practical matter are intolerable to the public.

The next question which seems to follow then is, has compulsory arbitration in this case set a precedent for the resolution of major labor disputes in the railroad industry or even perhaps in those industries generally that are of high-priority consequence to the economy? As the record here indicates, the Carriers would choose to answer this question affirmatively; the unions, as indicated by testimony before the above-described Senate Committee hearings, would hope otherwise. In one sense the case does represent a "breakthrough." From now arbitration in peacetime has never on it cannot be argued that compulsory

been tried and cannot meet with tolerable success. In this case the affair has largely been concluded with a great deal of practical success: The Carriers seem enthusiastic about the results; the affected firemen by and

large have arrived at least at a grudging acceptance of those same results; and the public, sensing the sentiments of those other two parties and having been spared a major strike, is now indifferent to the matter. Only the firemen's union remains alienated. From the public point of view, the solution here has been a viable one and hence successful.

But beyond the fact that arbitration has been "tried and found appropriate," it is too late in the hour now to suggest that the government can confine itself to mere mediation in those highly visible labor disputes of major economic consequence. Its commitment to see to the proper functioning of the economy is too firmly established. Given another case where a strike of some duration is intolerable and the issue completely intractable by voluntary processes, what else suggests itself but a government-imposed settlement? This means at the extreme

end of the spectrum compulsory arbitration in fact if not by law. Such a consequence is not likely to be seen in a collective bargaining issue like wages (unless, of course, the government has a policy of wage restraint, by which it in effect becomes a disputant). It would likely develop in an issue, like the one in this case, where there is an apparent need and demand for the wholesale elimination of jobs. To be sure, the government, being a "politically sensitive animal," has little liking for the making of drastic decisions; but the suggestion here is that in certain situations it will find itself with little if any choice. Over the years this lack of choice will express itself with increased frequency should the government expand its concern over the economy, as seems likely.

The story of the firemen's issue is an excellent presentment of why the Railroad Work Rules Dispute, cited at footnote 4, at pp. 416-417.

quest for job security seems currently to be taking on highest-priority consideration by organized labor not only in the railroad industry but in industry generally. During the course of the firemen's dispute, for example, and apparently in response to its implication, a number of railroad shop-craft unions won a far-reaching job-security agreement. Likewise, the BLE

itself has taken somewhat similar precautions for engineers with respect to railroad mergers.1 The impact of automation and related technological developments will compel the attention of organized labor to this matter; and in the collective bargaining process, arguments about the worker's "property right in his job" will reassert themselves. Regardless of how the government reacts to automation in terms of public policy, in the collective bargaining arena the solution

achieved in the firemen's case-that is, lifetime tenure for high-seniority employees and generous separation allowances for those with lesser seniority is likely to assume increasing popularity.

The BLFE and the BLE.-There remains the final question of the future of the BLFE as an organization. The arbitration award has dealt it a blow which is a bit short of lethal. Either singularly or in contribution to some merger with other unions, it will have few members. Eventually, after the attrition principle under the award has run its course, only those few thousand firemen whose jobs are in passenger service and those whose jobs are covered by the 10 per cent-veto provision will be left in the craft. To this must be added, as has been mentioned, the not-happy prospects for jobs currently in passenger service.

The historic rivalry of the BLFE and BLE now seems to be closing in

1 The Locomotive Engineer, BLE, Vol. 99, No. 42, Oct. 15, 1965, p. 5.

virtual triumph for the latter. Both unions seek the membership of both firemen and engineers, but the BLE consistently has rebuffed proposals of the BLFE to merge with it. The Engineers' Union, being traditionally the smaller of the two in membership, has been fearful of what the admission of firemen en bloc would mean for it in terms of majority vote. Moreover, in a merger agreement it would be expected to share union office and decision-making authority with officials of the Firemen's Union. Ever since dieselization, in the view. of the BLE, the BLFE has been an interloper anyway: As has been intimated above, the fireman is really not a fireman but an apprentice engineer and consequently should belong to the engineers' craft-that is, to the BLE. The position of the BLE has been, then, that if a single union of engine crew members is desired, all that firemen need do, as firemen, is to become members of, and vote for collective bargaining representation by, the Engineers Union. This would effectively eliminate the BLFE. In response, the latter union has reversed the argument: It has pointed to the advanced age of engineers generally and to their correspondingly high attrition rate from their jobs, and has added the advice that all the firemen need do upon promotion to engineers is to retain membership in, and representation by, the BLFE, so that in time it would remain as the only union for engine crew members.

During the course of the development of the firemen's issue, as here

related, the relationship between the two unions, which in the immediate past had been somewhat becalmed, began to deteriorate. The BLFE seems to be convinced that the BLE and the Carriers have joined in collusion to get rid of it. It was offended by the assertion of the BLE that the job of the engineer had not changed significantly in the absence of the firemen, thereby implying that indeed the fireman was superfluous; and during the meeting of the Joint Board the representatives of both unions were in open hostility. Add to this the fact that the BLE joined the Carriers in signing the majority report of the Joint Board, which in substance vindicated the arbitration award. As would be expected, by 1965, in the arena of union organization, both unions abandoned their existing gentlemen's agreement and began conducting raids against each other's collective bargaining representation rights. The last straw in the entire rivalry seems to be the yet-to-be adjudicated issue of which of the two unions has the right to bargain with the Carriers on an apprentice-engineer training program. Apparently in an anticipatory attempt to strengthen its own position on this point, the BLE some years ago renounced an agreement which it had with the BLFE on the training of firemen for jobs as engineers and their promotion thereto. Although it is difficult to speculate on the prospective judicial decision on this issue, if the Firemen's Union loses, another reason for its existence will have vanished. [The End]

-f. (Source: W. Willard Wirtz. In Emergency Disputes and National Policy. New York, N.Y., Harper & Bros., Publishers, 1955, pp. 149-165)

THE "CHOICE-OF-PROCEDURES" APPROACH

TO NATIONAL EMERGENCY DISPUTES

BY W. WILLARD WIRTZ
Stevenson, Wirtz, Blair, and Minow

One possible conclusion from the debate about whether “emergency labor disputes" should be handled by injunction, seizure, compulsory arbitration, fact finding, or mediation is that the answer to this riddle lies perhaps less in any one of these devices than it does in all of them. Increasing emphasis is being placed upon "flexibility" as the essential quality in any satisfactory governmental approach to national crisis resulting from a collective bargaining stalemate. The key feature of a number of recent proposals is that the executive agency charged with responsibility in this area should be authorized to invoke, in a particular case, not a single preordained procedure but rather any one of several procedures. This line of thinking starts from the simple fact that the elements in labor disputes, their causes and consequences, are invariably different. "Emergency" and "dispute" and "public interest" are being recognized as imprecise words, and "emergency dispute” as a term which is meaningless because it can mean so many different things. Experience with the procedure established in Title II of the TaftHartley Act has revealed its basic defect as being the prescription of a single form of compulsion for all "emergency disputes," regardless of circumstance or broader equities. There is a growing sense that there has been committed here the old mistake of assum

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ing that since the language offers a single phrase to lahel a set of troubles, there must be a single remedy available

COLLECTIVE BARGAINING AND EMERGENCY DISPUTES

nem.

These proposals for flexible procedures depend, too, upon a more subtle and refined logic. If the function of government in the area of industrial dispute were simply to stop strikes when the public interest becomes sufficiently affected, there would appear neither need nor justification for consideration of a variety of procedures. The labor injunction does that job, usually with great dispatch. If, at the other extreme, government's function here were to fix the terms upon which arguments will be settled, then some form of compulsory arbitration would be the only thing worth talking about. The "choice of procedures" theory develops from the reasoning that the function of government in this area is neither just to stop a fight nor to settle an argument, but is rather to implement and possibly even to force the settlement of serious disputes by the collective bargaining process. It is realization of the protean nature of collective bargaining and of the desirability of making this process work even in crisis which gives the argument of governmental "flexibility" whatever strength it has.

Americans are fond of reiterating the oneness of labor and management interests, the interdependence of their prosperity. The truth expressed here is likely to obscure the equal truth that there are real differences as to how this oneness of interest is to be effectuated. A thousand pies are to be cut, with no scientific or unalterable way of cutting them. The identity of interests really creates only an area of latitude within which there is room for serious differences of opinion. These differences may be resolved in various ways. Russian labor and management are today denied independent status; all questions are resolved by government fiat. Germany experiments with codetermination. The British have been having a go at nationalization. We in the United States have settled, for the time being at least, on the theory that even with its defects, collective bargaining best fits our idea and ideal of free economic institutions.

The essential quality of collective bargaining theory is that the

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