impact. The authority, however, for intervention by the FMCS is couched in language which is broader than that embodied in the national emergency disputes provisions "substantial interruption of commerce," as contrasted to "imperil the national health or safety."

It should also be noted that the Taft-Hartley Act1 defines "labor dispute" to have the same meaning as that term has in the National Labor Relations Act" (NLRA) and Norris-LaGuardia Act.21

Reading the act technically, the lower threshold for FMCS involvement in any labor dispute, that is, authorizing a proffer of services whenever in the opinion of FMCS a dispute threatens to cause a substantial interruption of commerce, is defeated as a basis for preventive mediation by the requirement that there be a dispute, rather than some more flexible condition of entry.

Recent discussions of collective bargaining developments have focused attention upon the desirability of, and some successes in, avoiding crisis bargaining by early attention to developing prob lems, including "early entry" by the government. At first, it would seem that FMCS has clear statutory authority for early entry into a dispute long before any crisis countdown and certainly before a threat to national health or safety is imminent. However, on the face of the statute, FMCS participation, even upon invitation of a party, depends upon the existence of a controversy, rather than upon the anticipation of one.

The varying specificity with which the duties of the Service are enumerated in section 203, the duties placed upon the parties to a dispute by section 204,22 and the duties imposed upon the parties to a bargaining relationship by section 8(d),23 are formulated so

19 L.M.R.A. § 501, 61 Stat. 161 (1947), 29 U.S.C. § 142 (3) (1964).

20 49 Stat. 450 (1935), as amended, 29 U.S.C. § 152(9) (1964). Section 2(9) of the National Labor Relations Act states:

The term "labor dispute" includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons negotiating, fixing, maintaining, changing, or seeking, to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. Ibid. 21 47 Stat. 73 (1932), 29 U.S.C. § 113 (c) (1964).

22 61 Stat. 154 (1947), 29 U.S.C. § 174 (1964).

23 National Labor Relations Act, as amended, 61 Stat. 142 (1947), 29 U.S.C. S 158 (d) (1964) (The National Labor Relations Act was reenacted as § 101 of the L.M.R.A.). This section states:

(d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the

that the Service's efforts are channeled into extinguishing fires little, if anything, is directed by the statute to fire prevention.

The strongly implied promises in the expansive language of the statement of policy of full and adequate government facilities and assistance in section 20125 are not reflected in the functions specifically given the Service by the statute, except during the countdown before a dispute ripens in a strike or lockout.

We are aware, however, that the Service does engage in preventive mediation. No doubt, the authority for such activity flows from the generous statement of policy, as well as the transfer negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: Provided, That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification

(1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification;

(2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modification;

(3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time; and

(4) continues in full force and effect, without resorting to strike or lock-out, all of the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later: The duties imposed upon employer, employees, and labor organizations by paragraphs (2), (3), and (4) shall become inapplicable upon an intervening certification of the Board, under which the labor organization or individual, which is a party to the contract, has been superseded as or ceased to be the representative of the employees subject to the provisions of section 9(a), and the duties so imposed shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract. Any employee who engages in a strike within the sixty-day period specified in this subsection shall lose his status as an employee of the employer engaged in the particular labor dispute, for the purposes of sections 8, 9, and 10 of this Act, as amended, but such loss of status for such employee shall terminate if and when he is reemployed by such employer. Ibid.

24 Policy statements are not meaningless. See United Steelworkers v. American Mfg. Co., 363 U.S. 564, 566 (1960); International Ass'n of Machinists v. Cameron Iron Works, Inc., 292 F.2d 112, 116 (5th Cir. 1961). No doubt many cases turn on policy statements of the law, but these were the only ones found on § 203; none were found on $201.

25 61 Stat. 152 (1947), 29 U.S.C. § 171 (1964). 26 See FMCS ANN. REPS.

of the functions of the Conciliation Service that was effected with the enactment of Title II. The statutory defect is in failing to clearly provide for this activity in the enumeration of the functions of the Service.

C. Statutory Commands without Sanctions

28

It is the generally accepted canon of statutory construction" that, if at all possible, meaning is to be given to every word of the Presumably, Congress does not enact meaningless words into law. In the prior discussion of section 201, an allusion was made to the implied promises of government assistance in the statute and the lack of implementing machinery or the failure of the law to assign administrative responsibilities. In section 204 we are treated to legal directives couched in mandatory language, which for practical, if not legal reasons, are purely hortatory. But the statute is silent as to if and how these duties are to be enforced. Recognizing that the courts have found a basis for enforcing the commands of law where no sanctions are supplied by Congress," why leave open the possibility of litigation to require a recalcitrant party to arrange conferences, or attend those arranged by the Service, or to determine that a party "had not made every reasonable effort" to make and maintain agreements, and then leave the remedy, if any, to the ingenuity of the litigants or the courts? First, the possi bility that failure or refusal in any of these endeavors might constitute a refusal to bargain, an unfair labor practice under Title I of the act, at least suggests that the courts might be without jurisdic

27 SUTHERLAND, STATUTORY CONSTRUCTION, § 4705 (Horock ed. 1943). 28 L.M.R.A. § 204, 61 Stat. 154 (1947), 29 U.S.C. § 174 (1964).

(a) In order to prevent or minimize interruptions of the free flow of commerce growing out of labor disputes, employers and employees and their representatives, in any industry affecting commerce, shall

(1) exert every reasonable effort to make and maintain agreements concerning rates of pay, hours, and working conditions, including provision for adequate notice of any proposed change in the terms of such agreements;

(2) whenever a dispute arises over the terms or application of a collective bargaining agreement and a conference is requested by a party or prospective party thereto, arrange promptly for such a conference to be held and endeavor in such conference to settle such dispute expeditiously; and

(3) in case such dispute is not settled by conference, participate fully and promptly in such meetings as may be undertaken by the Service under this Act for the purpose of aiding in a settlement of the dispute. Ibid.

29 Virginian Ry. v. System Fed'n 40, Ry. Employees Dep't, 300 U.S. 515, 544-45 (1937); Texas & N.O.R.R. v. Brotherhood of Ry. & S.S. Clerks, 281 U.S. 548 (1930).

tion to enforce such duties.30 More basically, can there be a more destructive factor to eventual agreement (which is, after all, the goal that section 204 seeks) than litigation mounted on a theory that the law orders your cooperation, and, therefore, the courts should require it? If compulsory mediation were intended by this section, a more direct route could easily be envisioned.

Given certain relationships between FMCS and boards of inquiry under sections 206 through 209,31 a case for the authority for compulsory mediation can be made.32 But, with this to one side, what effect are we to ascribe to section 204? It appears to add nothing to the functions of FMCS that was not covered in section 203 except for casting unenforceable duties upon the parties. The concepts are somewhat incompatible. A legal duty, as opposed to a moral obligation, necessarily implies enforceability. Perhaps the section has done no harm, or even may have proved useful. However, except for a kind of congressional, moral preachment33 (which should not be dismissed as worthless) section 204 smacks suspiciously of surplusage. It seems that the possibility of judicial enforcement is remote, and a comparison of section 204 duties and those imposed in section 8(d) of the NLRA will probably leave the reader as dubious as the writer of the benefit of section 204.34

D. Coordinating the Executive Function Formal Delegation or Ad Hoc Improvisation?

Section 205, providing for the establishment of the National Labor-Management Panel, is outstanding for its lack of material assistance in making meaningful the provisions of section 201.3

86

Perhaps the Congress intended no substance in the statement of policy. That section was in S. 112637 and was adopted in conference without change. In fact, most of Title II follows the Senate

30 Cf. Weber v. Anheuser-Busch, Inc., 348 U.S. 468 (1955); Garner v. Teamsters Union, 346 U.S. 485 (1953).

31 61 Stat. 155 (1947), as amended, 29 U.S.C. §§ 176-79 (1964).

32 See text accompanying notes 52-71 infra on powers of the board of inquiry.

33 Cf. NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152 (1956).

34 See discussion of § 209 at text accompanying notes 286-87 infra.

35 61 Stat. 154 (1947), 29 U.S.C. § 175 (1964).

36 William E. Simpkin, Director of FMCS, has recently revived the panel and started to use it to more creative ends. The panel was appointed by President Kennedy, May 25, 1963, and made its first report to the Director in July, 1964.

87 80th Cong., 1st Sess. § 205(a) (1947); 1 U.S. NLRB, LegislatiVE HISTORY OF THE LABOr Management Relations ACT, 1947, at 145 (1948).

38

version. The Senate report on S. 11263 reflects qualms over too much government. The committee thought the role of government should be limited to mediation except in dire emergencies. The discussion also indicated the intent to specifically exclude factfinding boards, overall mediation tribunals, and any recommendations.

It could be argued, and probably has been, that the LMRA in creating the FMCS as an independent agency, gave to it certain specific functions to perform in connection with active disputes. Therefore, to the extent that the declaration of policy of the United States in section 201 requires further implementation, the President presumably may seek other legal means to effectuate that policy, limited only by the available supply of creative innovations and funds, and the political realities within which he operates.

Regardless of the concern of the congressional committee, the dynamics of labor-management relations since 1947 have made more government participation necessary. From this juncture, it appears that the future may well place increasing strains upon the collective bargaining process that will make that "third chair at the bargaining table" permanent furniture, albeit not always occupied.

While section 201 of the LMRA provides a policy basis, even if by legislative accident, to support "creative" government assistance, it is unfortunate that the executive branch, even if it is disposed to acknowledge the need and responsibility, must "ad lib" to implement the policy. Programs are likely to be sporadic and uncoordinated, and to be considered fair game fet any ambitious agency, or part thereof, that can find the slightest justification in its basic mission for undertaking some activity in the labor-management relations

arena.

The Supreme Court decision in Youngstown Sheet and Tube Co. v. Sawyer, voiding a Presidential order of seizure of the steel mills to avert an emergency created by a strike under inherent constitutional powers of the President, created some sensitiveness and caution in the use of the Presidential authority in labor-management relations. However, it has not prevented, as indeed it is not authority for any prohibition, various executive-branch ventures designed

38 H.R. REP. NO. 510, 80th Cong., 1st Sess. 62 (1947); 1 U.S. NLRB, LEGISLA TIVE HISTORY OF THE Labor MANAGEMENT RELATIONS ACT, 1947, at 566-69 (1948).

39 S. REP. NO. 105, 80th Cong., 1st Sess. 13, 14 (1947); 1 U.S. NLRB, LEGISLA TIVE HISTORY OF THE LABor ManagemENT RELATIONS ACT, 1947, at 407, 420 (1948).

40 343 U.S. 579 (1952).