The Settlement of Work Jurisdictional Disputes by Governmental Agencies

The Settlement of Work Jurisdictional Disputes by Governmental AgenciesAuthor(s): Paul FisherSource: Industrial and Labor Relations Review, Vol. 2, No. 3 (Apr., 1949), pp. 335-359Published by: Cornell University, School of Industrial & Labor RelationsStable URL: http://www.jstor.org/stable/2519073 .

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THE SETTLEMENT OF

WORK JURISDICTIONAL DISPUTES

BY GOVERNMENTAL AGENCIES

PAUL FISHER *

O__ NE of the very few provisions of the Labor-Management Rela- tions Act of 1947 upon which friends and foes' of the Act agree, at least in principle, and which has a fair chance of survival in any changes of the law is section 10(k). It directs the

National Labor Relations Board to determine jurisdictional disputes over work assignments in case the parties fail to adjust them within ten days. A labor organization or its agent that engages in (or induces or encourages the employees of any employer to engage in) a strike, or a refusal to handle or to work on goods or materials, for the purpose of forcing or requiring an employer to assign particular work to employees in a particular labor organization or in a particular trade, craft. or class commits an unfair labor practice unless the employer himself is violating the law by a refusal to comply with a previous board order or certification. Unfair labor practice cases of this type have priority over all others except violations of section 8 (b) (4) (A, B, and C). They may bring forth not merely the usual remedies of the board but may also lead to court injunctions applied for by the board in its discretion (sec. 10 (j) ) and damage suits initiated by "whoever shall be injured in his business or property" (sec. 303). Unless within ten days after notice that a charge of this nature has been filed the parties submit to the board satisfactory evidence that they have adjusted the dispute, or agreed upon methods for the voluntary adjustment of the dispute, the board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen.

* Assistant Professor of Economics, Dartmouth College. MSenate Minority Report No. 205, Pt. 2, on S. 1126, 80th Congress, 1st session in "Legisla-

tive History of the Labor Management Relations Act 1947" (quoted below as LH), pp. 480, 503.



336 INDUSTRIAL AND LABOR RELATIONS REVIEW

Section 10 (k) represents a new departure. It establishes a forum2 for certain types of jurisdictional disputes if they result in strikes or boycotts. Whatever the source of jurisdictional conflicts may be, whether they arise out of jurisdictional claims based on territory, craft, materials, tools, industry, stages of production, ideology (political belief), or other organizational principles, whether they arise out of secessions,3 or earlier organizational successes, like spearhead drives by catch-all organizations,4 whether they are the results of change in methods of production, or the results of the complexity of interdependent business organizations55- they all represent sovereignty claims of two or more unions for exclusive control over certain work tasks or certain workers.6 The contestants may belong to the same international or national union (intraunion disputes7), the same federation (intercoaffiliated union disputes), or to rival (dual) unions either affiliated with different federations or unaffiliated (so-called "in- dependent").

Some of these disputes had to be settled by the old NLRB. Up to the enactment of the LMRA the board decided jurisdictional claims over worker allegiance arising between rival (dual) unions where these claims reached the stage of a demand for recognition in representation cases. More and more the board had to depart from its general policy of refusing to handle representation claims of coaffiliates.8 Delay and inability of the unions and the federations to settle such disputes internally, a representation demand of a third nonaffiliate, and the demands of the unions be- longing to the same parent organization forced the board into this field.9 Although the discussion preceding the LMRA did not address itself to the board's refusal to entertain conflicting representation claims of coaffifiates

2Louis L. Jaffe, "Inter-union Disputes in Search of a Forum," 49 Yale Law Journal, Jan. 1940, p. 434 et seq.; see also "Inter-union Disputes and the Employer," 48 Yale' Law Journal, April 1939, pp. 1053-1082; D. R. Colvin, "Jurisdictional Disputes," 20 Wash. Law Review, Nov. 1945, pp. 217-231.

3Sometimes these sources are intertwined. See the jurisdictional dispute between two CIO affiliates, the United Automobile Workers and the United Electrical, Radio and Machine Workers, reported in the New York Times, Oct. 7, 1948.

4Harbison-Walker Refractories Company (1942), 43 N.L.R.B. 936, involving District 50, U.M.W.

5Moraine Products Division, General Motors Corp., 56 N.L.R.B. 1887. "Clyde E. Dankert, Contemporary Unionism in the United States (1948), p. 170. "Simon Ruttenberg, "Intra-union Disputes over Job Control," Quarterly Journal of Eco-

nomics, Aug. 1947, p. 618 et seq.; Nilan v. Colleran (1941) 283 N. Y. 84, 27 N.E. (2d) 511. "Walter Galenson, Rival Unionism in the United States, p. 243, n. 6; Aluminum Company

of America, 1 N.L.R.B. 530 (1936); Axton-Fisher Tobacco Company, 1 N.L.R.B. 604. "National Labor Relations Board, 8th Annual Report, pp. 44; 9th Annual Report, p. 24;

12th Annual Report, p. 8. "The Influence of the N.L.R.B. upon Inter-union Conflicts," 38 Columbia Law Review, 1243.



WVORK JURISDICTIONAL DISPUTES 337

and to the many exceptions to this rule that all but nullified it, an omission that may be construed as a congressional approval, there is a possibility that the board may have to extend its availability in this respect even further. All of these cases stem from conflicting union demands for control over men, they all present the issue of union recognition, they all can be settled by ordering an election if the unions concerned make a substantial showing of representing the workers in the appropriate bargaining unit. The deciding principle in these cases is the determination of the choice of representatives by the workers (sec. 7 NLRA). In cases of overlapping jurisdictional claims, the well-known principles that apply to the determination of the appropriate bargaining unit, including the Globe doc- trine,10 express the jurisdictional demarcation.

The new section 10 (k) confers upon the new board a different duty. It is now charged with the final determination of jurisdictional claims over work assignment. In these cases the unions are not satisfied with a switch of allegiance, or with the holding of two or more union cards by the men on the job. Here one union seeks work for its members as against the members of other unions. A demand for replacement of workers cannot be settled by polling the votes of those whose jobs are endangered. What principles will the board apply in these cases?

In spite of the relatively small number of jurisdictional strikes and boycotts of this type, these disputes have always aroused intense interest. In the period 1935-1947 jurisdictional strikes (as distinguished from rival union disputes, but not differentiated as to claim for jobs or men) never involved more than 1.6 percent of all workers on strike (1941, 1945) and never resulted in a greater loss than 2.7 percent of the total number of man-days lost by strike activity (645,000 in 1945).11 However, the economic losses, the plight of the displaced workmen and of innocent bystanders - namely, the employer unable to resolve a dispute injuring his business and a public inconvenienced by what most of the time appears to it as a petty and sometimes even slightly ridiculous family squabble - and the injury caused to collective bargaining and responsible unionism repeatedly pro-

:"'For use of the Globe Machine and Stamping Company Case rule (3 N.L.R.B. 294), see Glenn L. Martin Nebraska Company, 54 N.L.R.B. 427; Manganese Ore Co., 54 N.L.R.B. 1192; Keystone Steel and Wire Company, 65 N.L.R.B. 274; Mountain States Power Co., 59 N.L.R.B. 109.

11 Bureau of Labor Statistics, breakdown of strikes by cause in Congressional Record, March 10, 1947, p. 1891; Monthly Labor Review, May 1947 and May 1948. A. F. Whitney claimed in Hearings before the Committee on Labor and Public Welfare, United States Senate, 80th Congress, 1st session, on S. 55 and S.J. Res. 22 (quoted below as S.H.), p. 2116, that jurisdictional disputes since 1927 never had amounted to more than two ten-thousandths of 1 percent of all man-hours available.




duced violent condemnation by management, 12 labor,'3 and representatives of the public'4 alike.

This paper, although addressing itself to the narrow problem of search- ing for a set of principles that could govern the settlement of work jurisdictional strikes and boycotts by the NLRB, finds additional justification in the many fundamental issues that such a search incidentally raises.

ARE JURISDICTIONAL DISPUTES AMENABLE TO ANY SETTLEMENT OTHER THAN ONE BY AGREEMENT?*

The LMRA does not list a set of principles for the guidance of the board in settling section 10 (k) conflicts. The common law yields no answer. Very little enlightment can be found in the legislative history of the Taft- Hartley act. The practices of the old National Labor Relations Board15 and of the Railroad Boards are hardly applicable to work assignment conflicts.16 Agreements and decisions reached by organized labor17 and by

12Representative are the utterances of W. Homer Hartz on behalf of the Chamber of Commerce of the U. S., S.H., p. 551; Ira Mosher, then president of the NAM., ibid., p. 938.

13 The long list of such utterances beginning with Samuel Gompers, in "The Steamfitter," April 1903, p. 2, does not end with Philip Murray's and William Green's statements before the Senate (S.H., p. 1102 and p. 986).

14 Even such a friend of labor as the late Fiorello H. LaGuardia was quite impatient with jurisdictional disputes (S.H., p. 2022). See also President Truman's message to Congress on the State of the Union, Jan. 6, 1947: "In such strikes the public and the employer are innocent bystanders who are injured by a collision between rival unions. This type of dispute hurts production, industry and the public -and labor itself. I consider jurisdictional strikes indefensible." Labor economists are equally outspoken in their criticism; see, for instance, Philip Taft, "Jurisdictional Disputes," Annals, Nov. 1946, p. 37; Dale Yoder, Personnel Management and Industrial Relations, 3rd ed., p. 742; George W. Taylor, "Government Regulations of Industrial Relations," pp. 247, 325; D. R. Colvin, op. cit., p. 218.

[* See agreement establishing national joint board for settlement of jurisdictional disputes in building and construction industries, published as a document in this issue of the Indus- trial and Labor Relations Review. - EDITOR]

:'As indicated in the text, the old NLRB. decided jurisdictional disputes of coaffiliates only in exceptional cases. See Jacob 0. Hyman and Louis L. Jaffe, "Jurisdictional Disputes," in Proceedings of New York University, First Annual Conference on Labor, 1948, p. 426.

:6The National Mediation Board, which, like the old NLRB, determines the bargaining representative by majority vote, has no authority to determine "which of two crafts encom- pass a particular occupation, where each craft is represented by a different union, and both unions claim that the particular occupation falls within the craft it represents, unless such a dispute also entails the question as to who shall represent one of the crafts." (Comment, 1938, 38 Columbia Law Review, 1243, n. 5; 1245, n. 16; S. 3266, 73rd Congress 2nd session.)

17The richest source of information is provided by the American Federation of Labor. Almost since its creation the federation and its departments have developed a succession of elaborate and as far as the number of settlements is concerned extremely successful apparatus to deal with jurisdictional claims. These various procedures have been fully described and evaluated in the current literature (Dankert, op. cit., p. 170 et seq.; Richard A. Lester, Eco- nomics of Labor, pp. 581-586; Cummins and DeVyver, The Labor Problem in the United States, pp. 169 et seq., etc.). But the only common principles that emerge from the study of



WORK JURISDICTIONAL DISPUTES 339

voluntary arbitration's reveal no consistent body of rules that could be adopted by the board.

A policy that the board could accept must, therefore, be based on a clear understanding of the nature of such disputes, which in turn depends on an understanding of the nature of the unions and their relationship to organized society.

For purposes of economic analysis unions have been repeatedly likened to monopolies, they have been construed as instrumentalities of their members to obtain a wage-employment bargain that will maximize the income of all their constituents, or at least of those who are currently em- ployed. Job jurisdictional disputes, following this view, are grounded in the promise of benefit that they hold for the members of the victorious union. The self-interest of the members whose jobs, wage standards, working conditions, and economic security are at stake explains partly the ardor with which such disputes are carried on.'9 In periods of job scarcity it is a matter of vital importance for union members to know who gets the job. Neither is the union wage always secure. Union spokesmen have alleged that contending unions undercut the established wage scales in order to secure the jobs for their members.20

Besides the search for economic security for the membership, there is generally recognized a second basic reason for these disputes: the union's and their leaders' "lust for power." This has been expressed in terms of conflicting desires for building up, maintaining, and expanding organizational strength (and leadership control) by means of increasing control

the proceedings of the federation and its departments are of a procedural nature. No common rule going to the substance can be found in the decisions, agreements, and awards. In the few cases where these settlements give any indications of the grounds upon which they have been reached, only one common element can be distilled. They seem to rest upon an evaluation of the respective strength, power, willingness to fight of the contending unions, and their relative importance to the deciding organization. In accord: Lester, op. cit., p. 586, and Millis and Montgomery, Organized Labor (The Economics of Labor, Vol. III), p. 292; Haber, Industrial Relations in the Building Industry, pp. 187, 177-178, 183-184. Acceptability is an important but cannot be the only ingredient for NLRB determination.

'sVery few arbitration awards referring to jurisdictional disputes have been made public. See Hyman and Jaffe, op. cit., p. 448.

"I "The extensive detail and fine distinction of jurisdictional disputes have evoked amaze- ment and ridicule from the onlooker but they do not appear ludicrous or hair splitting to the men who depend on jurisdictional lines to guarantee them work where very little or even none at all would otherwise be available and certainly not at such high rates of remunera- tion." Anthony P. Dawson, "Hollywood's Labor Troubles," Industrial and Labor Relations Review, July 1948, p. 643.

I The IAM claimed that the Amalgamated Association of Street and Electrical Railway Employees of America entered into agreements with the employer at rates 20-30 percent below the IAM scale (Proceedings A.F. of L. Convention, 1941, p. 511).




over jobs and men, and consequent swelling of the treasury by initiation fees and dues.

A considerable number of jurisdictional strikes are not only conducted with an emotional intensity far exceeding other strikes and with a fanat- icism normally associated with religious and national conflicts but are also protracted for such long periods that the economic losses inflicted upon the worker are far greater than the gains that victory could bring in the member's working life span. The economic calculus of measuring sacrifice and risk against the expected higher income (the product of wage and employment) is clearly unsatisfactory as an explanation of such strikes. If the economic interest of the members is not the only source of jurisdictional disputes, if these disputes seem also motivated by the institutional interests of labor organizations and their leadership, the abstract economic model of the trade union must be amended by considerations of the sociological and political aspects of labor organizations. Professors John R. Commons and Selig Perlman were the first to show that the American union's aim of conserving and conquering employment opportunities for a membership conscious of job security must lead to the concept of the exclusive job empire, to a political unit comparable to a modern state with all the attributes and problems of sovereignty and nationalism.2' The power aspect of the union seen as a social organism was recently stressed by the Chicago group, which used it to explain union-management relations.22 Professor Bakke approaches the same problem on the basis of union (and management) claims for survival.23 The search for a better understanding of union wage policies led the writers associated with the Institute of Industrial Relations of the University of California to consider the union primarily as "a political agency operating in an economic environment,"24 an "essentially political rather than economic institution'"25 demanding and receiving a loyalty from its members similar to national patriotism.24 Like other social institutions in the economic world, unions not only represent the benefits accruing to their members, but also pursue institutional objectives like survival and growth of the organization. Since they act through their leaders, some of the union ac-

I Selig Perlman, A Theory of the Labor Movement, pp. 237-253; Labor in the New Deal Decade, Educational Department, International Ladies' Garment Workers' Union, 1945, p. 8.

22 Frederick H. Harbison, Robert K. Burns, and Robert Dubin, "Toward a Theory of Labor-Management Relations," in Lester and Shister, Insights into Labor Issues, pp. 15-16.

23 E. Wight Bakke, Mutual Survival. 24Arthur M. Ross, Trade Union Wage Policy, pp. 12, 21, and 24. 25 Clark Kerr, "Economic Analysis and the Study of Industrial Relations," in Training and

Research in Industrial Relations, Industrial Relations Center, University of Minnesota, 1947, pp. 13-14.




tions are more easily explained in terms of the personal objectives of the leadership.26 (There is nothing necessarily sinister in the leader's quite legitimate goal of maintaining his office and expanding his functions.) The union is different from its members, it (and its leaders) has its own institutional requirements, its own survival need, its own sovereignty and integrity. Should union and leader objectives clash with the economic demands of the membership, the latter may have to stand back.27

If unions pursue policies, if they conduct jurisdictional warfare not only to further but also against membership interests, if their institutional objectives of growth, integrity, and survival lead to sovereignty claims, if they behave as if they were sovereign nations, then the question ought to be considered: To which structural unit in the labor movement belongs this characteristic of sovereignty, to the national (international) or the federation that granted the charter to the former? Professor Perlman28 and William Green29 would attribute only to the federation the government of job kingdoms, the characteristic quality of legitimacy and sovereignty. However, the record of the federation's attempts to settle jurisdictional disputes would rather indicate that the affiliated unions claim exclusive job sovereignty even against the federation. True, they received the charter from the parent organization, but for its interpretation and all actions under it they claim an even greater immunity than Dartmouth College claimed against the State of New Hampshire. Based upon Gompers' principles of union autonomy and self-direction of the chartered union, the federation's right to decide jurisdictional claims was repeatedly ques- tioned30 by those unions that could survive outside the federation's fold. Where such an international was not powerful enough to force the federation to reverse an unacceptable decision, it seceded. Trade union dis- cipline when applied to the extent of expulsion from the AFL was signifi-

26 Arthur M. Ross, "The Trade Union as a Wage Fixing Institution," American Economic Review, Sept. 1947, p. 571.

'2Clark Kerr, ibid., "If the chips are down it [the union] will even sacrifice the wealth of its members for the power of the institution." See also Leo Wolman, Industrywide Bargaining, p. 18.

!' Selig Perlman, Labor in the New Deal Decade, p. 18 et seq. 2"When the Brewery Workers repudiated in a referendum an award made by the AFL

convention by a vote of 24,161 to 170, William Green stated that a union cannot determine its own jurisdiction (Proceedings A.F. of L. Convention, 1933, p. 115), he also expressed the idea that in jurisdictional conflicts the wishes of the workers were immaterial (reported in Jaffe, op. cit., p. 582).

3"Matthew Woll opposed an AFL-convention-ordered referendum in a union on the question of amalgamation as a method of ending a jurisdictional dispute as "in derogation of the autonomous rights of the organizations-leading nowhere" (Proceedings A.F. of L. Conven- tion, 1940, p. 474).




cantly unsuccessful in preventing further flouting of AFL jurisdictional awards by affiliates inbued with an indomitable will for sovereignty.

Sovereignty claims can be compromised by the powers themselves, but cannot be adjusted against their will by outsiders. Hence settlement of jurisdictional disputes by agreement, conference, even by voluntary amalgamation and merger (all this promoted by the federation) or voluntary submission to arbitration are acceptable to unions holding this view. But any attempt to impose a settlement upon them, be it by the federation itself3' or by the government, would be branded not merely as a violation of the principles of voluntarism and autonomy, but also as an attack on "the house labor built."32 Regardless of whether labor leaders associate the characteristics of sovereignty with the federation or with the inter- nationals, they are rarely willing to concede to the government the right to settle jurisdictional disputes.33 When the management members of the President's National Labor-Management Conference of 1945 proposed settlement of jurisdictional disputes by the NLRB, the labor members insisted upon the traditional ways of settlement by the parent organization and interunion committees. No agreement was reached.34 Continuing a long-standing tradition,35 labor's spokesmen expressed the same negative attitude a year later, when the Taft-Hartley Act was under deliberation.36 The same point also found expression in the President's veto message of June 20, 1947.37

81At almost every convention of the AFL resolutions were submitted with the purpose of strengthening the AFL machinery of settlement of jurisdictional disputes. Every time these proposals were reported out unfavorably by the committee on resolutions, always with reference to the principle of voluntarism (Proceedings A.F. of L. Convention, 1939, p. 440; 1940, pp. 233, 474; 1944, pp. 265, 295, 351; 1946, p. 499; 1947, p. 49). "This is autonomy coupled with irresponsibility" (Hyman and Jaffe, op. cit., p. 430).

32 John P. Frey, President, Metal Trades Department, AFL, stated this view most forcefully in his report to the Department convention, Sept. 30, 1946 (No Strikes over Juris- dictional Disputes, Publication of the 37th Convention in Chicago, Sept. 30-Oct. 2, 1946, p. 4).

" When the Brewery Workers refused to abide by an AFL convention award giving jurisdiction over beer-wagon drivers to the teamsters and successfully petitioned the courts for an injunction that would prevent the enforcement of the adverse AFL decision, the Executive Council of the AFL and Matthew Woll described such an attempt to settle jurisdictional disputes "outside the family" as an attack on the fundamental structure of the AFL (Proceed- ings A.F. of L. Convention, 1939, p. 55). The decision of the District Court granting the injunction was later reversed in Smith v. Obergfell 121 F (2d) 46 (Ct. Ap. D.C. 1941).

34 The President's National Labor Management Conference, Nov. 5-30, 1945, U. S. Depart- ment of Labor Bulletin No. 77, pp. 65-67, 70-71, Committee III, Item 7 of the agenda; George W. Taylor, Government Regulation of Industrial Relations, pp. 240-241.

35Jaffe, op. cit., p. 427. ""William Green, S.H., p. 983; Philip Murray, ibid., p. 1102. 87H. Doc. No. 34: To turn over the task of determining jurisdictional disputes to the

NLRB would run counter to the "accepted and traditional methods of settling such disputes" (L.H., pp. 916-918).




Brought to a logical conclusion, the foregoing analysis would, were it complete, result in the position that jurisdictional disputes defy any other than voluntary settlement. Whether such disputes arise out of conflicting claims for economic security of the members, or out of the institutional needs of unions and their leaders, they represent clashes of interest, which can be resolved by agreement, by overwhelming of the opponent,38 by removing the basic causes,39 but never by judicial process. It would almost appear that no rules exist and that no rules can be devised that could serve as a basis for an outsider decision.

THE SETTLEMENT OF SPECIFIC DISPUTES AND GOVERNMENT INTERVENTION

But the line of reasoning just elaborated, suffers from two important defects: (1) It assumes that jurisdictional disputes arise in the abstract instead of considering the fact that the claims refer mostly to a specific situ- ation in a given plant at a given time, concerning a certain number of jobs. (2) It mistakes the resemblance of jurisdictional claims to sovereign claims of nation-states for identity.

Although incompatible organization principles may preclude a final and general settlement of all existing and future demarcation claims, the contenders may be willing to agree to a settlement or to accept a decision rendered by a third party that presents a stop-gap arrangement but that is not recognized as a precedent.40 This explains the remarkably successful record of the AFL and its departments (at least as far as number of settlements is concerned).41 There is, hence, no theoretical reason to assume that

38Amalgamation of a weaker union with a more powerful union amounts in many cases to surrender (Dankert, op. cit., p. 184).

Insofar as jurisdictional disputes arise out of member insecurity, nothing short of a guarantee of full employment at wage rates commensurable with labor's ideals would remove this basis (John R. Commons in Wertheim Lectures on Industrial Relations, p. 97 et seq.; A. F. Whitney, S.H., p. 2116; William Green, S.H., p. 983). To remove union interests, national unions would not have to disappear but would have to yield their sovereignty claims to all contenders, or to the federation and - to avoid rival union claims - even better, to one big union. Giving up sovereignty, widening of the narrow structural setup, and exchanging the economism of job scarcity and the struggle for job empire for class consciousness (Dan- kert, op. cit., p. 176; Lester, op. cit., p. 586) are hardly immediate prospects. See also Ludwig Teller, New York Times, Oct. 5, 1941.

4 The 1946 Convention of the Metal Trades Department (No Strikes over Jurisdictional Disputes, p. 4) accepted President John P. Frey's policy of prohibiting work stoppages in local jurisdictional disputes, which provided that such "stop-gap arrangements shall not act as a precedent" "nor change, restrict or interpret the established jurisdiction of the affected international unions."

4 Philip Taft, Economics and Problems of Labor, p. 553, gives an excellent historical account and appraisal of the rather successful record of the AFL Building and Construction




a government agency could not also be entrusted with such non-precedent- making settlement of specific disputes, even if its inability to settle the underlying general principles is conceded.42

The second theoretical obstacle to governmental settlement stipulates unions as social organizations equipped with a sovereignty equal to or even transcending the state. Gompers' economism (his opposition to re- liance upon the political weapon, his attempt to disassociate the fate of labor from a government that can just as easily deprive labor of its victories as bestow favors upon it) was a rule of strategy. It has been sometimes dis- torted into the dogma that unions are a law in themselves and outside the pale of the laws of society.43 This represents a type of anarchistic pluralism that cannot be accepted. Labor unions are not sovereign states, they have to conform their actions to the general principles of fair conduct established by the nation that every subject, be it person, corporation, or voluntary association, has to obey. They may be political organizations of "pro- ducers," but they do not stand on an equal footing with the state, the association of "consumers."44 The state is the supreme sovereign, the highest of all power structures; its law represents the pinnacle in the hierarchy of legal orders. Consequently the state can subject labor organizations to its general command and also to a particular set of rules sanctioning some and prohibiting other actions. Under the NLRA unions still remain pri- vate parties (voluntary associations), although for purposes of collective bargaining the law has delegated to them certain narrowly defined norm- setting powers.45 But since such delegation amounts to approval, it can be refused, as, for instance, to company-dominated unions or unions representing merely a minority, or granted only upon conditions, like the filing of certain reports and affidavits, or made subject to certain obligations, like liability and suability for breaches of collective agreements and respon- sibility for unfair labor practices. Furthermore, jurisdictional strikes are not only an internal affair of labor. Neither employer nor the public nor

Department. Similarly positive is Dankert's (op. cit., pp. 180-183) presentation of AFL and CIO achievements in this respect. President Fred N. Aten of the Railway Employees' Depart- ment, AFL, expressed the belief that since the 1940 "agreement for the settlement of jurisdictional disputes on all Railroads" (signed by now by all department affiliates) between 1,500 and 2,000 agreements have been signed and adhered to (letter to the author of October 22, 1948).

42 Jaffe, op. cit., p. 431. 43 Professor Perlman (in Labor in the New Deal Decade, p. 16) described this union senti-

ment with admirable clarity. "G. D. H. Cole, Self Government in Industry, Ch. v. 45For an elaboration of the ideas expressed in this paragraph, see the writer's "Trade

Unions under the Wagner Act," 21 Oregon Law Review (1941), pp. 54-61, and particularly footnotes 68-70, 83, and 84.




nonaffiliated workers have agreed to submit their interests to the AFL, the CIO, or their joint committees (which were never very successful).46

Although these theoretical arguments against governmental settlement of jurisdictional disputes are removed, such intervention may not be needed if the traditional methods of settlement established by organized labor suffice, or if they could be effectively improved.

Organized labor's handling of jurisdictional disputes showed, in spite of the great number of successful settlements, grave defects. The federations lack control over affiliates; consequently suspension and expulsion threats are, as a rule, defied for a long time by strong unions or evaded by disaffiliation and the formation of dual (rival) unions. Agreements for peaceful settlement were reached through the efforts of the parent organizations in many cases only after exasperating delay, characterized by end- less commands to engage in conferences year after year. Their consumma- tion is a record of failure in many instances.47 Voluntarism had failed in such a considerable number of irritating cases that the public demand for government intervention became irresistible.48 Even labor itself became restless. As mentioned above, some unions forced the old NLRB to breach its policy of noninterference in jurisdictional disputes of coaffiliates by waiving this impediment to the processing of representation cases.49 The demand for federal intervention grew to such an extent that it gained recognition by both the major political parties. In his State of the Union message of January 6, 1947, the President not only branded jurisdictional disputes indefensible, but asked for federal legislation to prevent jurisdictional strikes intended to compel employers to bargain with a minority union instead of one representing the majority, and for a law providing for peaceful and binding determination of jurisdictional disputes over which union is to perform a particular work task.50

46Jaffe, op cit., p. 431. The war-time (1943) AFL-CIO agreement for the arbitration of jurisdictional disputes was repeatedly sabotaged by AFL political actions (Hyman and Jaffe, op cit., p. 438, n. 25).

4' Philip Taft, "Jurisdictional Disputes," Annals, Nov. 1946; Jaffe, op. cit., p. 433; Taylor, op. cit., p. 240; Dankert, op. cit., p. 183; Proceedings A.F. of L. Convention, 1926, p. 45, 1928, p. 65; 29 Geo. L. J., p. 1077; Hyman and Jaffe, op. cit., p. 429.

48 Public irritation found its expression first in state laws. The bitter warfare between AFL Carpenters and CIO International Woodworkers for control of the lumber workers in the Pacific Northwest led to passage by public referendum of a stringent antistrike and anti- picketing law, Oregon Laws 1939, ch. 2 paragraph 1, 3. Sec. 102-906 was later held unconstitutional in A.F. of L. v. Bain (1940) 106 Pac (2nd) 544; see Lester, op. cit., p. 585.

49 William W. Fitzhugh, Inc. (1943) 47 N.L.R.B. 606; Manganese Ore Company (1944) 54 N.L.R.B. 1192. "The rule of abstention underwent a course of erosion rather than sudden uprooting" is Hyman and Jaffe's verdict (op. cit., p. 435, n. 19) based upon a comparison of the various annual reports of the NLRB.

5064 M.L.R., p. 255. Reiterated in his State of the Union message of Jan. 5, 1949.




METHODS OF GOVERNMENT INTERVENTION PROMOTING SETTLEMENT BY LABOR

There is still no agreement as to the precise method that the government should use to prevent jurisdictional strikes and produce a settlement of the disputes. On the one extreme stands Ira Mosher, who, for the sake of managerial efficiency, proposed that the employer should have the sole and exclusive right of determining such disputes;51 on the other extreme are William Green, who preferred to maintain the status quo (ante- LMRA), and other labor leaders, who suggested the setting up of a board made up exclusively of labor representatives.52

Strong arguments can be marshaled for a type of governmental regulation that, without deciding the dispute, would force the unions themselves to reach somehow an agreement.53 The states have pioneered in this field. To deny to a state labor relations board the authority to investigate any question or controversy between individuals or groups within the same labor organization or affiliated with the same parent organization was thought to exert sufficient pressure upon the unions.54 Some states have exposed strikes and boycotts arising out of such disputes to court injunction by eliminating them from the definition of the term "labor dispute" in state anti-injunction statutes.55 Other states have attempted to suppress jurisdictional strikes by adding them to their list of unfair labor practices56 or by declaring them unlawful and against public policy or even criminal acts.57 Suppression of work jurisdictional strikes could also be achieved as a by-product of making the legality of all strikes dependent upon a major-

S.H., p. 939. 52S.H., p. 724 bottom of the page. 0 The employer and the public have principally one interest, to have a jurisdictional

strike avoided. Neither the innocent bystander nor the law (society) is primarily interested in the rationale of the settlement.

" Compare the New York (sec. 705 (3) ) and Rhode Island (sec. 6 (3) ) Acts. The Massachu- setts Commission adopted a similar policy: Costello Distributing Company Inc. C.R. 175.

65 Colorado Labor Peace Act, sec. 2 (7); Delaware Regulations of Labor Unions Act, sec. 1 (1); Idaho, sec. 434A 112 as amended by ch. 266 L. 1947; Wisconsin Employment Peace Act, sec. 111.02 (8); Utah, Labor Rel. Act, sec. 49-1-10 (9). A number of states, some without anti- injunction statutes, never followed the "Stillwell Theater, Inc. v. Kaplan rule" (259 N. Y. 405) and held jurisdictional disputes directed to an unlawful purpose, or not "labor disputes." Compare Jaffe, op. cit., n. 142-144, 148, 179. California expressly granted injunctive relief - C. 1388 (1947).-so does Iowa, ch. 297 L. 1947 (S1112)

6Wisconsin Employment Peace Act, sec. 111.07 (2) (1) ch. 530, L. 1947; Pennsylvania State Labor Relations Act, sec. 6 (2) (E), Act No. 558, 1947.

67 California C. 1388 (1947) grants in addition injunctive relief and damages. Florida, sec. 481.09, 1945 Supp. 8. Kansas State L. Rel. Act, sec. 44-809 (13) was held unconstitutional in Stapleton v. Mitchell (D.C. Kan. (1945) 60 F. Supp. 51). Missouri, S.B. 79 L. 1947, sec. 6, declares jurisdictional strikes a misdeameanor. See also Iowa, ch. 297, S 1112, 1947, and Kansas State L. Rel. Act, sec. 8 (13).




ity vote of the employees on the job.58 These types of legislation found numerous supporters in the discussion of the Taft-Hartley bill.59

A different legislative device (besides declaring work jurisdictional disputes unfair labor practices and providing for NLRB injunction and for damage suits), based upon the idea of forcing labor to settle its own squabbles finally found expression in the law. It relied upon the experiences of the National War Labor Board. The NWLB had elaborated a number of procedural steps, stressing first of all voluntary settlement by the contending unions, and, upon failure, settlement by labor members of the board. If settlement could not be reached within a reasonably short time, an attempt was made to get a specific voluntary arbitration agreement from the disputing unions; only when all these procedures failed came final determination by a public member or the board.60 The expectation was that labor's determination to solve such disputes without outside interference would be so powerful, the urge to avoid the penalty imposed upon labor for failure to meet its obligations so strong, and the shock so great,6' that there would never arise the need for NWLB decision. Minne- sota and Missouri apply the same principle in their settlement procedures.62

Delaware, Regulation of Labor Unions Act, sec. 2 (e) and 5; Florida, sec. 481.09 1945 Supp. 3; Kansas State L. Rel. Act, sec. 44-809 (3); North Dakota, sec. 11, ch. 242 L. 1947; Utah State Labor Relations Act, sec. 49-1-16 (2) (c); Alabama, Title 26, sec. 388 was held unconstitutional in Ala. State Fed. of Labor v. McAdory, cert. dismissed 325 U.S. 450, 65 S. Ct. 1384. Massachusetts, ch. 214, sec. 9 B, as added by ch. 571 L. 1947 promotes voluntary arbitration of jurisdictional disputes by granting an injunction against the party that fails to abide by the award. Compare also Wisconsin Employment Peace Act, sec. 111.07 (2) d.

59Ludwig Teller, Labor Policy for America, p. 114. Slichter, Trade Unions in a Free Society, and the Smith Bill (H.R. 8) recommended the unfair labor practice approach. Philip Taft, Annals, 1946, p. 43, recommended prohibition of jurisdictional strikes; Metz, A National Labor Policy, p. 158, and the Hoffman Bill (H.R. 880) wanted to declare them unlawful. Even a representative of labor, Walter N. Generazzo, National President of the American Watch- workers Union, proposed prohibition since it would force the creation of arbitration machinery by the unions involved (S.H., p. 1595). Metz introduced in addition the added sanc- tions of suspension of bargaining rights of the unions concerned, their liability for damages, and discharge of the employees. Similarly Charles E. Wilson favored employer injunction, loss of legal employee status if the disputants failed to reach an agreement or resolve the dispute by conciliation (S.H., p. 487). The Case bill (H.R. 725) combined loss of status as labor organizations with civil damage liability.

OON.W.L.B. Press Release, July 25, 1942; Paul Fisher, "The National War Labor Board and Postwar Industrial Relations," Quarterly Journal of Economics, Aug. 1945, p. 516, and n. 9.

e1 George W. Taylor, op. cit., pp. 147, 274. 02 Minnesota State Labor Rel. Act, sec. 170.083; Missouri S.B. 79 L. 1947 sec. 2. Since 1943,

when the Minnesota statute became law, only one case arose where the governor appointed a referee, who handed down a temporary decision. Even in this case the parties settled the dispute forthwith with the aid of the AFL Building Trades Council (Hyman and Jaffe, op. cit., p. 442).




Section 10 (k) threatens NLRB determination only in case the parties fail to submit to the board within ten days satisfactory evidence that they have adjusted the dispute, or agreed upon methods for the voluntary adjustment of the dispute. The legislative history of the act reveals clearly that the Senate hoped that labor would find board arbitration so distaste- fu163 that it would abstain from jurisdictional strikes and set up effective settlement procedures. It is too early to say whether these hopes, which some observers believe constitute the only salutary and constructive aspect of the LMRA arrangement,64 have a chance of realization in the long run.

In the second half of 1947, 27 jurisdictional strikes ended, involving 2,840 workers and resulting in 72,000 man-days idle. In the comparable 1946 period 26 strikes were brought to a conclusion, which affected 4,700 workers. In the first half of 1947, 35 strikes, involving 6,320 workers and 586,000 man-days idle, were counted.65 The great decrease in number and intensity of jurisdictional strikes between the first and second half- year of 1947 may, however, be due partly to the seasonal decline of all strike activity in late fall and winter66 and partly to the decline of all strike activity following the enactment of the Taft-Hartley Act67 -the natural but perhaps shortlived reaction of a watchful and concerned labor movement vis-ai-vis a new set of rules. There is no sufficient evidence as yet that would permit one to attribute to section 10 (k) by itself a deterring effect upon jurisdictional strikes.

The voluntary settlement of jurisdictional strikes by labor organizations present a more encouraging picture. In the period of Aug. 22, 1947 to June 1948, 52 cases involving section 10 (k) were brought to a conclusion by the regional offices. Only 6 were adjusted by the regional offices, 29 were withdrawn - these were presumably settled by the labor organizations themselves - 15 were dismissed, and two were withdrawn after a formal hearing. So far only one case, the Moore Drydock Company case, reached the Na-

63Senate Minority Report, L. H., p. 480; Wayne L. Morse, L.H., p. 1555. " George W. Taylor, op. cit., pp. 274, 327. 65The figures for the second half of 1947 were computed by deducting the figures for the

first half of the year (M.L.R., Jan. 1948) from the annual figures (M.L.R., May 1948, p. 385). Figures for 1946 were taken from L.H., p. 952.

Yoder, Personnel Management and Industrial Relations, 3rd ed., p. 450, and "Economic Changes and Industrial Unrest," 48 Journal of Political Economy (1940), 227-237.

67 Taking the ratio of man-hours lost over man-hours worked as a yardstick of strike activity, the average for the months of September-December 1947 of 0.17 shows clearly the restraint that labor imposed upon itself. The ratio for 1946 was 1.43 and for 1945, 0.47, and the 1935-1939 average was 0.27. Some of the decrease in strike activity is due to the fact that the new law hampered particularly organizational drives and union expansions (see Taft, Economics and Problems of Labor, p. 521).




tional (Washington) Labor Relations Board.68 Again, one year's experience, and particularly the first, is hardly conclusive.

The greatest success that the policy of promoting voluntary settlement of jurisdictional disputes by threatening labor with compulsory arbitration has reaped up to date is the setting up of the National Joint Board for Settlement of Jurisdictional Disputes in the Building and Construction Industry, the industry that accounts for the greatest number of work jurisdictional disputes. The fortieth annual convention of the Building and Construction Trades Department, AFL, in co-operation with the Asso- ciated General Contractors and other employers announced on May 1, 1948, the setting up of joint machinery that promised speedy settlement. Professor John T. Dunlop was designated chairman of the board and impartial umpire. A considerable number of disputes have already been dis- posed of by this board, mostly upon the basis of the "law" of the trade as it appears in around fifty previous agreements and decisions.69 The history of the various preceding settlement procedures established by the Building and Construction Department of the AFL tends however to dampen the enthusiasm for the present achievement. Too many cases are on record where various unions dissatisfied with the decisions simply withdrew from the department, thereby sometimes wrecking the settling mechanism.70 There are already some indications that history may repeat itself. In September 1948, five months after the establishment of the new board, the convention of the International Brotherhood of Electrical Workers (AFL) authorized the union to withdraw from the Building Trades Department "to protect union interests."7'

FINAL SETTLEMENT BY GOVERNMENTAL AGENCIES

There is considerable likelihood that in the long run the NLRB will not be able to avoid determination of work jurisdictional disputes and may be called upon at an ever-increasing rate to evaluate the merits of the contesting positions. The harder the times, the scarcer well-paying jobs

""Louis G. Silverberg, Director of Information NLRB in letter of Sept. 30, 1948, to the author.

69"Plan for Settling Jurisdictional Disputes Nationally and Locally," A.F. of L. Buildings and Constructions Department, May 1, 1948; Labor, Feb. 21, 1948; New York Times, April 9, 1948; Business Week, April 9, 1948, p. 100.

70The Bricklayers withdrew in 1927, the Carpenters in 1909, 1918, and 1929, the Electri- cians in 1931 (Lorwin, The American Federation of Labor, pp. 378-383; Proceedings A. F. of L. Convention, 1934, pp. 152, 488 et seq.).

7- Business Week, Sept. 25, 1948, p. 107. For another case of union recalcitrance see N.Y.U. Proceedings, First Annual Labor Conference, 1948, p. 462.




become, the stronger unions grow, the more prevalent will become work assignments disputes that defy voluntary settlement. To declare jurisdictional disputes illegal cannot stop them....There is nothing unlawful about honest differences of opinion as to which union is entitled to perform a certain task....Attempting to make them illegal is not going to remove the conflict.... What is needed for their settlement is a decision as to the rights of the disputants based on the merits of the controversy.72

The need for setting up a governmental settling agency had been recognized by the NWLB, by the states of Michigan, Minnesota, and Missouri, by the Case bill, by Senator Morse, and by the Senate of the United States.73 In the Senate the discussion centered primarily upon the question of what governmental agency should be entrusted with the task. This problem, however, could have been answered only if a clear understanding of the nature of the decision required had been reached. To this question only scant attention was paid, which may account for the irrationality of the discussion and the inadequacy of the final solution.

The way a specific, localized work jurisdictional dispute presents itself is a pertinent consideration. Where there exist conflicting collective bargaining contracts between the employer and the disputants, where they themselves have entered previously in demarcation agreements, or where a federation has in the past decided the issues successfully (that means that the unions have complied with this decision in the past), the task of the governmental agency is basically the judicial act of interpretation and application of existing rules. But where the governmental tribunal is called upon to reconcile charter provisions,74 no such rules are available. "There is no overwhelming logic which dictates whether a metal door is to be done by a carpenter or a sheet metal worker, whether the nature of the job or the material is the decisive factor."75 To solve such questions "general considerations" will have to be resorted to. Comparison and history applied to the specific employer-union relationship and to the interunion relationship are not always conclusive. They are apt to produce conflicting answers.76 Since a selection must be made, and a settlement must

72 Paraphrased from Wayne L. Morse, "Will We Have Industrial War or Peace with the Taft-Hartley Law," 33 Cornell Law Review, June 1948, p. 551. See Matthew Woll in S.H., p. 1348 et seq.

73 For NWLB machinery see text to footnote 60. Michigan State Labor Relations Act, sec. 9 (c), added by Public Act No. 318, 1947, addresses itself only to those jurisdictional disputes which arise in connection with representation cases; hence does not apply to work jurisdictional disputes. For the former it provides for election after compulsory mediation has failed.

74 See Minnesota Statute sec. 170.083 (sec. 6 ch. 624 L. 1943). 75 Jaffe, op. cit., p. 436. 76Which is more decisive, the "background and history of the contending unions with

particular reference to their craft functions" (Charles 0. Gregory, Labor and the Law, p. 410;




be provided, the need for a set of rules for the guidance of the governmental settling agency becomes apparent. Such principles do not emerge from the nature of the demarcation struggle in its general form as a conflict of organizational principles. Power and economic interests in the abstract cannot be reconciled by the government or any outsider without the consent of the parties. In this field there is no room for the development of the much-heralded "jurisdictional jurisprudence" or for "the working rules of an economic government";77 otherwise, years of experience with many jurisdictional disputes that must have displayed a sufficient number of common characteristics to permit a common rule to emerge would have provided such a code. What can be settled are merely the isolated, specific clashes of interests. Such settlements effected without precedence for the general positions of the parties involved78 must be based upon a clear understanding of the technological and economic facts of the given problem in "industrial relations." It requires a type of decision that not merely settles the given conflict, but also looks into the future and establishes a modus vivendi for the parties. Finally, the decision must be speedy and expedient.

Expediency requires not merely acceptability to the principals of the dispute, the contending unions, but, in addition, to all other parties who have an interest in or are affected by the settlement, i.e., the members, the nonunion workers, the employer, and, above all, the public. The principles that apply to such isolated jurisdictional disputes must not only identify these interests of the parties for which an acceptable (expedient) solution is sought, but also indicate in what order and to what extent they should be satisfied. Since neither the facts of a given dispute, nor its general nature, nor the common law yield such a body of rules, the tribunal may be tempted to substitute its own value judgments, shaped by the socioeco-

see also Minnesota Statute sec. 170.083) or the estimated ability to provide "most effective representation for collective bargaining" (Minn. Statute, ibid.)? The application of these two criteria may yield conflicting results; each of them may disagree with the result of another analysis based upon the prospect of "harmonious operation of the industry" (Minn. Statute, ibid.). In the absence of a definite priority schedule it remains debatable whether the historical or the pragmatic comparative approach, the emphasis upon union-employer or upon interunion relations, should be given greater weight.

77 Sumner H. Slichter, Union Policies and Industrial Management, pp. 1-2; John R. Com- mons in Wertheim Lectures on Industrial Relations; Jaffe, op. cit., p. 436; Daugherty, op. cit., p. 414; Millis and Montgomery, op. cit., p. 292; Lester, op. cit., p. 586.

78 One of the modern maxims in the field of international relations may be applicable: "You don't solve the problems, you learn to live with them." Since a nonprecedental settlement is all that can reasonably be expected to be acceptable to the principals of the dispute (text to footnotes 40 and 42 supra), the danger that a wide and general application of governmental rulings would cause rigidities, inflexibilities, and a uniformity which would upset the traditional local and regional practices (George W. Taylor, op. cit., p. 327) is not too great.




nomic views of its members, for principles. Such vaguely formulated views, existing merely in the minds of the arbiters or judges, account for a body of inconsistent case law. Unless the body politic entrusts the tribunal with the formulation of economic polices, or provides a consistent body of objectives, embodied in a law for the tribunal's administration, these socioeconomic views are likely to prove too inconsistent and vague to serve as safe guideposts.79

Courts are least able to serve as tribunals for the settlement of work jurisdictional disputes. In general, judges do not possess sufficient technical and economic knowledge or experience in union-management relations to guarantee a correct analysis of the facts,80 nor should they be asked to undertake the nonjudicial task8' of deciding a contest for empire. In such disputes the court's traditional task of applying and interpreting laws does not suffice. Some students hold that in these cases there are no laws for the courts to apply or interpret.82 Although courts have more and more displayed an awareness of economic issues, they are hardly willing and able83 to formulate those broad social and economic policies upon which the expedient settlement is to rest. Rarely are courts in a position to render and supervise a decision that not only settles an existing dispute but also leads to harmonious future relations. The best way to determine the fairness and equity of a viable settlement is to achieve its acceptance by the parties.84 This the courts are badly equipped to secure. Except for the injunctive process, courts cannot supply speedy solutions. Courts have, therefore, always displayed great hesitancy about coming to grips with jurisdictional conflicts.85

79The greatest difficulty lies in the identification of these interests. What are legitimate union interests? Since the criteria of legitimacy cannot be applied to each disputant, should it be measured against the federation's or the labor movement's aspirations? Are these respective aspirations clearly established? Would not a settling agency substitute its own interpretation of what is in the best interest of organized labor for labor's will?

80 The late Lewis B. Schwellenbach, Secretary of Labor, S.H., p. 1973. 81 Wayne L. Morse, S.H., p. 1963, and in 33 Cornell Law Review, June 1948. 82Jaffe, op. cit., pp. 448-449; Schwellenbach, S.H., p. 1973. 83Wayne L. Morse expressed some apprehension as to the effects of a tendency of allow-

ing the judiciary to determine economic questions. "There is no worse regimentation than a regimentation by the judiciary" (S.H., pp. 725, 1973).

81G. W. Taylor in "Summary of Comments by N.W.L.B. Board and Staff Members" to Dexter Keezer's article in the Amer. Econ. Rev.; see also Chafee, "The Internal Affairs of Associations Not for Profit," 43 Harvard Law Review (1936): "Legal supervision must often be withheld for fear that it may do more harm than good. The principle of freedom and growth is easily overlooked by the judges."

6 Hendren v. Curtis (1937), 164 Misc. 20, 297 N.Y.S. 364. Significant are the cases where the courts refused to enter into the problems as long as there was only the slightest chance to submit the case to other tribunals, particularly the Railway Labor Boards (General Committee of Adjustment, Brotherhood of Locomotive Engineers v. M.K.T. RR (1943), 320 U.S. 323:




Congress must have been aware of these facts. Perhaps this is the reason why it refused to adopt the declaratory judgment provision proposed by the Case bill.86 The more surprising is it then that section 10 (k) leaves the decision ultimately to the courts. Not only will the courts have to decide work jurisdictional disputes when presented in discretionary injunction suits or in damage suits, but, what is more important, the only way in which the board can enforce its award of jurisdiction is by issuing an unfair labor practice order reviewable by the courts. To make things worse, the courts have been especially admonished to take no notice of the board's expert knowledge in interpreting facts, thereby depriving the procedure of much of its value. As indicated above, court review ends all hope for a speedy denouement.87

Congress considered also88 (and rejected in conference) arbitration. Sec- tion 10 (k) in the Senate version (S. 1126) left it up to the board to determine such disputes or to appoint an arbitrator for this purpose whose award "shall be deemed a final order of the Board." This last clause would have subjected the award to court review. Hence the same objections of loss of speed, of loss of the advantage of expert knowledge, and of the general inability of courts to provide satisfactory solutions apply. Govern- ment-provided arbitration, if final, would have been an understandable choice. Not only is labor well acquainted with this procedure from its own voluntary referee schemes, but it had also some experience with compulsory arbitration under the National War Labor Board. The informality

"Such disputes are not justicable"; Order of Railway Conductors v. Pitney, 326 U.S. 561) or to the unions (Missouri-Kansas-Texas Ry. v. Randolph, 164 F. (2d) 4, (1947). When confronted by demands for injunctions, courts are prone to dodge the problem of awarding jurisdiction to either union (Hansen v. Local No. 373, 55 A (2d) 298 (N.J. 1947) et al.).

86 note 73 supra. 7Wayne L. Morse in 33 Cornell Law Review, June 1948, p. 551, estimates two years as

the time necessary for receiving a final decision. According to the General Rules and Regula- tions, Series 5 of the NLRB (29 Code of Fed. Reg. ch. II, 203.74-203.78), the NLRB gives the parties ten days to prove agreement or agreement on methods of settlement. If this step remains fruitless, a hearing on the merits of the case is held before a staff member. The parties have the right to file briefs within seven days, whereupon the full board decides the issue either on the basis of the record or upon oral argument. The decision takes the form of a certification of that labor organization or particular trade, craft, or class of employees which shall perform the particular work tasks in issue. This certification is not subject to review. But now the regional director ascertains the intentions of the parties in regard to compliance. If compliance is not forthcoming, the second act unfolds. The board starts unfair labor practice procedure under sec. 8 (b) 4-D. The eventually emerging board order is reviewable by the federal courts. Two years seem a modest estimate for the time involved.

18 Senator Wayne L. Morse not only submitted S. 858 but also fought valiantly in and out of the Senate for the adoption of arbitration. The proposal was revived in sec. 106(e) of the (Truman) National Labor Relations Bill of 1949, S. 249, 81st Congress. New York Times, Jan. 30, 1949.




of proceedings, so conducive to amicable settlement, is of tremendous importance, as is also the possibility of gaining speedy settlement by experts in the field.89 Arbitrators are very much aware of the fact that their award not merely adjudicates a past event, but also establishes a pattern for future behavior;90 that their task is to seek for an enforceable decision that is acceptable to all parties, one that does not create lasting dissatisfaction, in- viting parties to further strife at the next occasion.9' Particular attention should have been given to Louis Waldman's proposal92 for the creation of a tripartite arbitration commission, the decision of which was to be final. Although there is still some controversy on the merits of tripartite bodies,93 George W. Taylor's94 argument in their favor carries the weight of long experience.* Adjusted to the problem under discussion, not merely the contending unions but also the employer would have to be represented on such a tribunal. Representative agencies of similar character have worked tolerably well under the Railway Labor Act.95

SOME QUESTIONS

Two questions remain: (1) How could such an agency prevent effectively strikes and boycotts? (2) Would such a tribunal, although certainly able to develop solutions acceptable to unions, and eventually to the employer, also develop those social and economic criteria that are needed if the decision is to be acceptable to the public and the nonrepresented workers? The first question is difficult but may yield a positive answer. The second cannot be answered affirmatively. And here is the crux of the problem. The experiences of the War Labor Board are not applicable. The NWLB had a definite frame of reference. Its duty was the peaceful ad-

89 Morse, L. H., pp. 1554, 1963. 90Harry Shulman, "The Role of the Impartial Umpire," American Management Associ-

ation, Personnel Series No. 82, pp. 6-10. 91 Ibid. 92S.H., p. 418. 3Dexter M. Keezer, "Observations on the Operations of the National War Labor Board,"

Amer. Econ. Rev., June 1946, pp. 238-246, and "Comments by Board and Staff Members," pp. 2-4, 13.

9 George W. Taylor, op. cit., pp. 154-159; in accord, Paul Fisher, Quarterly Journal of Economics Aug. 1945, p. 520.

[* See "Tripartitism in the National War Labor Board," by Robert G. Dixon, in this issue of the Industrial and Labor Relations Review. - EDITOR]

96 Representative tribunals are slightly less subjected to attacks by the losers and enjoy a certain amount of immunity from political attack (Keezer, p. 242). Does this offer a partial explanation for the stability of railway labor legislation, which according to H.R. Northrup, "The Railway Labor Act and Railway Labor disputes in Wartime," Amer. Econ. Rev., June 1946, p. 324, is not above criticism, if compared with the tough sledding the nonrepresentative NLRB had in literature and Congress?




justment of disputes causing interruption of any work that contributed to the effective prosecution of the war,96 interruptions that might have led to substantial interference with the war effort.97 No such singleness of purpose, no such guidepost, exists for the arbitrators. It is far easier for them to consider themselves mere agents of the parties98 than the representatives of the public with an uncertain mandate to guard the undefined and con- troversial "public interest."

The National Labor Relations Board does not suffer from this deficien- cy. Were its determination of the dispute final, it could proffer speedy settlement. Its personnel can offer expert knowledge, at least in the general field of industrial relations, and it can familiarize itself with the necessary technical knowledge.99 As an administrative agency, it is better equipped than the courts, not only to render expert services, but also to frame and enforce industrial policies and to use practical judgment in the selection of desirable and pragmatic methods. It could provide uninterrupted supervision, so pertinent when not merely a historical set of facts but a continuous relationship has to be adjusted.'00 Not unlike arbitration tribunals, administrative agencies can perfect the mechanism of informal adjudication and render expeditious settlements.'0' To the extent that the character of the NLRB as a quasi-judicial administrative agency has been changed by the LMRA, as it assumes more and more the functions of a labor court, the board has been robbed of some of the advantages the administrative character otherwise would have offered. The board certainly has the means to prevent jurisdictional strikes and boycotts. But the

96 Executive Order No. 9017, Jan. 12, 1942, preamble. 97War Labor Disputes (Smith-Connally Anti-Strike) Act, sec. 7 (1). 98 George Soule, Wage Arbitration, p. 6.

Compare Senator Murray's statement in L.H., p. 1585. Secretary Schwellenbach (S.H., p, 1965) doubted the board's expertness as much as the efficacy of its procedure. He doubted whether trial examiners taking testimony, reporting to regional offices, or the regional and national board could ever get results. "You have to have people with particular knowledge about that particulr problem." This line of reasoning is not completely convincing. The board has and can further change its procedures. It is no stranger to the field of jurisdictional disputes. The specific knowledge is obtainable. Fairness, disinterest and ability were considered of greater importance by the Building and Construction Department and by the Metal Trades Department, AFL, than technical knowledge. The former has called upon outsiders with experience in labor relations, lawyers, professional arbitrators, and university teachers, the latter as disinterested referees, to procure a settlement where those steeped in the particular technical knowledge did not succeed. The Railway Employees' Department's (AFL) machinery culminates in a referee, who, although disconnected with the parties, ought to have "a fair knowledge of the work of some trade similar to the trades involved in the dispute." To the extent such knowledge is needed for settlement, it probably could be acquired, eventually by local inspection, for which the Railway Labor Department's scheme provides.

1?James M. Landis, The Administrative Process, pp. 23, 33, 26. ?0 Gellhorn, Federal Administrative Proceedings, p. 58.




main reason why the board has been consistently proposed'02 as the settling agency lies in its unique ability to produce a set of principles that allow the reconciliation of the various interests involved in a decision. For the NLRB the "legitimate union or member interests," the interests of the employer that deserve protection, and the "public interest" are identifia- ble, and their relative priority position may be determined. They are determined by the very law that this board has to administer and to which it owes its existence. Because of its greater familiarity with this law, the NLRB appears better equipped than any other tribunal to serve."oa

What remains to be shown is how the NLRA and LMRA define these interests in a way in which their administration becomes feasible and what priority it assigns to them.

The LMRA's "short title and declaration of policy" postulates as the

102Jaffe, op. cit., p. 429; Florence Peterson, Survey of Labor Economics, p. 655; S. H. Slicht- er, Trade Unions in a Free Society.

103An additional reason for entrusting the NLRB with the settlement of work jurisdictional disputes lies in the fact that the board had even before the Taft-Hartley Act been active in the settlement of jurisdictional claims over men. To assign these two types of conflicts to different tribunals would only add to the bewildering proliferation of governmental agencies which so often leads to contradictory results. (For a different view see Herzog in S.H., p. 1890). Generally speaking the board has discharged its duty in the membership rivalry cases with a reasonable degree of success. The use of the election order as the only remedy is, however, subject to some objections. The election device determines the desire of the employees for self-representation, hence expresses their interest, but fails to take into accord the interests of all other parties involved (public, unions, and employer). The results of an election in one plant may violate the distribution of men as it appears in the nation-wide charters. A local solution may put the local conflict at rest at the expense of creating many more conflicts in the nation. A weakening or the destruction of national unions, thus caused, may in the long run be not even of benefit for the workers involved in the election. Such atomization may lead to the lowering of wage and work standards (Jaffe, op cit., p. 452). To the extent that industry- wide bargaining appears as a method of assuring industrial peace (Richard A. Lester and Edward A. Robie, Wages under National and Regional Collective Bargaining; Clark Kerr and Lloyd H. Fisher, "Multiple Employer Bargaining, The San Francisco Experience," in Lester and Shister, Insights into Labor Issues, pp. 53 et seq.), the latter would be endangered by such atomization. Even without industry-wide bargaining, strong, secure national unions seem better able to enter into co-operation with management and are more conducive to increased and uninterrupted productive efforts. Leo Wolman in his attack on industry-wide bargaining (op. cit., p. 31 ff.) and Charles F. Lindblom in "The Union as a Monopoly" (Quarterly Journal of Economics, Nov. 1948, pp. 671-697), both following the line of reasoning set forth by the late Henry C. Simons, "Some Reflections on Syndicalism" (now reprinted from the Journal of Political Economy in Economic Policy for a Free Society), do not deny the salutary effect that strong unions engaged in industry-wide bargaining may have upon the maintenance of industrial peace, the paramount guide for the NLRB. They merely raise, but fail to answer, the question of the economic cost of such a policy. It is doubtful whether the economist has at present the tools to compare the cost of a policy stressing uninterrupted production with one that takes labor unrest in its stride. Obviously no complete socioeconomic cost comparison, taking into account also sociological, political, and philosophical factors, is feasible at this time. In its absence, it hardly seems wise to abandon light-heartedly the present positive program for industrial peace, developed after so many centuries of strife.




main goal of the law the maintenance of industrial peace, the suppression of industrial strife that interferes with the normal flow of commerce and with the full production of articles and commodities for commerce. This is the paramount consideration. It establishes the priority of the public interest and it narrows this concept in a way that makes its administration workable. The same approach is used by the Minnesota statute, the only state law on record that establishes guideposts for the decisions of the referee.'04 Where interpretation of collective contracts, interunion agreements, and previous awards and charter provisions fail, where comparative and historical analyses do not yield an unequivocal answer, the one union should prevail that has the better record of and shows greater promise for the maintenance of industrial peace.

Industrial peace, so the "Findings and Policies" of the Wagner Act state, is best served by strengthening the institution of collective bargaining, which in turn necessitates the legal protection of the employees' right to organize. Protection and strengthening of labor organizations appear as the second principle of the law, which the board may apply when other criteria fail. As the law stands today, not all unions receive board consideration. Neither company-sponsored nor dominated unions nor those that fail to comply with the law will be protected. Hence, the comparison of the re. cent record of the contenders, as well as of their probable future actions in regard to compliance with the law, may serve as a useful yardstick. Again, the term union interest becomes meaningful and applicable only when related to the standard of the rules that a democratic society imposes upon itself voluntarily.

The many provisions of the NLRA and LMRA that avowedly protect the interest of the employees (members and nonmembers) as well as of the employer follow in that order. In the preamble to the Taft-Hartley Act, "the legitimate rights of employees. . in their relations with labor organizations" precede the law's concern with the "right of employers." The content of these employee and employer interests is again removed from the field of vague economic and social ideals and circumscribed by the

104 Minn. Statute, sec. 179.083: In the absence of an agreement or charter, the proper construction of which would be determining (see footnotes 73, 74, 76, supra), the referee is to "make such decisions as, in consideration of the past history of the organizations, harmonious operations of the industry, and most effective representation for collective bargaining will best promote industrial peace." (Italics supplied.) Sec. 106 (e) National Labor Relations Bill of 1949 follows the Minnesota example. Board or arbiters are called upon to consider not merely any prior board certification, union charters, interunion agreements, decisions of union agencies established to consider such disputes, and past work history, but particularly the policies of the act.




recognition that society is willing to extend to them in the law.'05 To take an example, a union that charges an excessive or discriminatory initiation fee may be found less deserving of a jurisdictional award - always assum- ing that interpretation of collective agreements, interunion agreements, etc., have not yielded a conclusive answer - than a union that charges a reasonable sum. If the union has violated the law, it has forfeited consideration because of noncompliance. Regardless of the existence of a union shop, the protection of applicants for membership, identified with their protection against excessive and discriminatory initiation fees, must be presumed to be one of the guideposts that the present labor law provides.

Furthermore, all these interests, clarified and their respective rank established by the law, are intertwined. Public interest, for instance, permeates all others. Hence priority in rank does not preclude but merely invites consideration of the other criteria. The difficulties facing the board in settling work jurisdictional disputes remain great, but at least some guid- ing principles have been uncovered in the labor law itself.

CONCLUSIONS

Conflicting claims of unions over men and jobs are likely to be with us for quite some time. So far, attempts on the part of organized labor to prevent the accompanying strikes, picketing, and boycotts, and to settle these disputes, even where prompted by government action, have failed in such a considerable number of cases that the setting up of a government tribunal is a necessity in the interest of all parties concerned. Unemploy- ment in any given industry may accentuate the conflict in a way that may increase the number of cases that defy settlement by labor and that then will be presented to the public in the form of strikes and boycotts. There is some doubt whether the labor movement is in a position to produce enforceable decisions and whether it would not secretly welcome an oppor- tunity to shift to an outsider the burden of a settlement that is bound to be unpopular with the loser. Although the outsider may not be able to settle the irreconcilable basic claims in the abstract, although no general solution may be possible, a specific strike and boycott can be prevented,

105 Those interests that are not recognized by the law deserve no consideration by the board in settling jurisdictional disputes. It is of course true that, for instance, "Different classes of workers receive different rates of pay, that they adhere to varying working conditions that affect the cost of production" (George W. Taylor, op. cit., p. 326) and that hence the employer has an interest in board determination as to who will perform disputed work. But the employer's desire to reduce labor cost and payroll has not found expression in any law. Fortunately so, since it would put any tribunal which would have to administer such laws before extremely difficult problems. (Compare Hyman and Jaffe, op. cit., pp. 454-455.)




and the specific dispute can be settled, on the basis of existing contracts, agreements, and awards and on the basis of an interpretation of charter provisions. Comparative and historical analysis may yield conflicting results, which can be resolved by resorting to a clear understanding of the nature of the decision, of the interests involved, and of their relative importance. The only source productive of a workable identification and priority scheme of this interest is the existing labor law itself. The NLRB is the logical tribunal for the settlement of all types of jurisdictional disputes. The arrangement made by section 10 (k), sound in principle, could be improved by making the decisions of the board final (without subjecting them to court review), thereby assuring speedy disposition of the case, and binding upon the courts called upon to deal with the same questions in injunction and damage cases. Much could be gained for a desirable solution by restoring the essentially administrative character of the agency, by re- casting its rules and regulations, and eventually by providing for representation of the parties, at least in some if not in all stages of procedure.



The Settlement of Work Jurisdictional Disputes by Governmental Agencies

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