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based on sex be eliminated, while at the same time efforts be made to preserve State legislation establishing standards for the employment of women.
WOMEN AND CHILD LABOR COMMITTEE
DOUGLAS N. AJER, Wisconsin, Chairman
L. C. BUTCHER, Georgia [Accepted.]
President CATHERWOOD. Thank you, Mr. Ajer, for this very effective summary of a complicated subject and one that is now appreciated by the members of this group.
I noted your suggestion that it would be desirable to reiterate last year's resolution. If you, as chairman of the women and child labor committee, have not already done so, I would suggest that you pass this suggestion to the chairman of the resolutions committee so that it will not go by default.
The subject is open for discussion.
DISCUSSION Commissioner Boggs. I would like to make a suggestion. I do not object to accepting the report. I do object to passing the law on a national level. Regardless of what you say or what we think, that is the law. We have more complaints from women in our State who say they are being discriminated against because they are not allowed to work overtime. Therefore, we amended our law to provide all businesses engaged in interstate commerce, or any business under the Federal Fair Labor Standards Act, to include hours for women. Therefore, they will have to pay time-and-a-half after 40 hours.
Now, this is the only way I know that we can get around it. I know that there are a lot of people who have real deep feelings about it. One commissioner was talking about it and said, all they are doing is evading the law. They are not quoting the law. They are saying, "We will take one case at a time.” And you have 50 or 75 people making a complaint because they are not allowed to do certain things to work overtime hours. I say that if you do not do it, you are in violation of that law, if they want to convict you.
President CATHERWOOD. Thank you for your observations, Commissioner Boggs. I think it is fair to say that different States are taking somewhat different attitudes and paths here in a situation that likely will require some years for clarification before we really know what the law in question fully means to certain activities in the States in relationship to interpretations by the Commission.
I would like to observe, collaterally also, that we are delighted to have attending this convention, as she has on a number of occasions in the past, Mrs. Mary Keyserling, Director of the Women's Bureau. It is good to have you here, Mrs. Keyserling.
Mrs. KEYSERLING. Thank you.
President CATHERWOOD. We will now have the Report of the Mediation and Conciliation Committee. Chairman Cochrane of Manitoba is unable to be with us, so Vice Chairman Larry Barker of West Virginia will read the report.
Report of the Mediation and Conciliation Committee
Chairman: N. D. COCHRANE, Deputy Minister, Manitoba Department of
(In the absence of Mr. Cochrane, the report was read by Lawrence Barker,
Commissioner, West Virginia Department of Labor.) Let me say at the outset that the entire relationship between labor departments and the Mediation and Conciliation Board is becoming more and more important. The Association of Labor Mediation Agencies will meet the last of August in Mackinac Island, Mich. Of course, many States have laws that have been or are being passed relative to public employees organizing. There have been many seminars on public employees and collective bargaining. There are two schools of thought as to the right of public employees to strike or not to strike.
My feelings on the subject are for the former. I will probably get much dissent and argument there, but I believe the public employee has the same right to strike as anyone else in any other industry.
I will now read the report.
In accordance with the wishes of the association as indicated by President Catherwood, this report gives a brief description of the United States and Canadian systems of mediation and conciliation and a review of the way they are functioning in the light of current problems.
The committee has not had an opportunity to meet; therefore, our report has been prepared without the benefit of consultation and discussion.
Before proceeding with a review of our respective conciliation systems, the committee would like to comment briefly on the constitutional bases from which they have developed.
Under the Canadian Constitution, the Federal Government has exclusive jurisdiction and responsibility in labour disputes in interprovincial and international transportation and communication facilities and in a few other well-defined undertakings. Other disputes embracing by far the largest number of industries and employees fall under the exclusive jurisdiction of the Provinces. The accepted clear-cut constitutional allocation of responsibility in respect to labour disputes in Canada has resulted in almost no duplication or overlapping of conciliation services between the Federal and Provincial authorities.
In the United States, the picture seems to be much less clear. The service which has jurisdiction over a dispute is often in question. In some cases more than one service may have the legal right to act. This gives rise to friction between the two levels of government with the State agencies feeling at times that their rights are being infringed upon.
The committee is not prepared to do more than point out the difference between the United States and Canada in this regard and to suggest that a continuing effort be made to avoid unnecessary duplication and overlapping.
We feel sure there is consensus in this association if not complete agreement that such overlapping and duplication as does exist is a source of serious irritation and frustration and tends to reduce the effectiveness of the conciliation and mediation system at a time when it is being called upon to cope with huge and critical problems.
The committee's review of the development of United States and Canadian legislation and administrative practices in the mediation and conciliation of labour disputes shows some important differences and some strong similarities. There are indications of a definite trend in Canada away from the general use of tripartite boards and toward the more widespread use of single conciliators and mediators, which, of course, has been the consistent practice in the United States for many years.
In the development of its legislation and policy, undoubtedly each country has been influenced to some extent by the other's experience. There seems, however, to be good reason to believe that the important influence has been the assessment in each country of the results of its own experience.
Since the turn of the century, Canadian legislation has reflected what Canadian legislators have seemed to feel was a strong public desire to avoid or minimize work stoppages of any kind. In all Canadian jurisdictions except one, legislation has for many years provided for government intervention in all disputes by requiring that the parties submit each dispute to conciliation before there could be a legal work stoppage. In the U.S. legislation, there seems to have been more reliance placed on the resolution of differences by the parties themselves and a reluctance to insist upon government intervention, except where it was felt that the public interest was quite strongly affected.
The Canadian system of conciliation which is commonly referred to as compulsory conciliation has two features: A procedure consisting of conciliation and investigation first by a conciliation officer and in some cases by a conciliation board; and a compulsory waiting period insofar as a work stoppage is concerned between the time of a breakdown in direct negotiations and the completion of the conciliation procedures.
The role of the conciliation officer in Canada may be described generally as entirely accommodative. With few exceptions, it is his sole duty to help the parties to come to an agreement satisfactory to them.
If the conciliation officer is not successful in bringing about an agreement, the Minister of Labour may appoint a conciliation board consisting of a representative of each of the parties and an impartial chairman. These boards have a dual role. Initially, they have the same function as a conciliation officer. If, however, they fail to bring about an agreement, they may make recommendations as to the terms of settlement. Canadian conciliation boards not only have powers of investigation, but in most cases in Canada, they are expected to render a judgment on the issues. Their function may, therefore, be described as both accommodative and normative.
In the Canadian case we find what amounts to a general built-in cooling-off period, because a legal strike cannot take place while conciliation officers and conciliation boards are carrying out their duties.
One of the differences between United States and Canada is that U.S. policy appears to be exclusively accommodative. In fact, much care seems to be taken to place restraint on, if not outright prohibition against, U.S. conciliators and mediators performing any normative function that is judging the issues and making recommendations as to the terms of settlement. Another difference is that while the U.S. mediation services are readily available to the parties, there is no requirement that these services be utilized before strike action is taken. Unlike Canada, there is in the United States no general built-in legislative cooling-off period.
A significant departure from this general approach in the United States occurs in disputes affecting the national economy. In such disputes, under Federal law, the President may appoint an investigating committee which reports on the facts surrounding a work stoppage, and while such investigating committee is barred from making any recommendations about the basis for a settlement, the President on the strength of such a report may direct the Attorney General to obtain a court injunction to delay the strike for a specified cooling-off period.
It is important to note also that in both countries situations develop from time to time where the Government without specific legislative authority deems it to be in the public interest to intervene to settle a labour dispute and does so rather firmly.
A further examination of actual practice provides additional indication that the United States and Canadian systems are coming closer together.
For example, there has developed in recent years in Canada a recognition that compulsory conciliation in all disputes by both a conciliation officer and a conciliation board and the imposition of a cooling-off period, while they both functioned, tended to defer realistic bargaining until after these procedures had been employed.
So, in Canada in recent times there has been a trend away from the automatic use of both a conciliation officer and a conciliation board. One jurisdiction has dispensed altogether with the conciliation board. Some others rarely appoint conciliation boards. And in some cases, provision is made that the entire conciliation machinery may be replaced by independent mediators agreed to by the parties and paid for out of public funds. Usually these mediators have been selected from outside the public service and they usually recommend the terms of settlement.
The committee has noted in recent years a recognition on the part of labour, management, and government in both countries that not all the current problems in the labour-management relations field can be dealt with effectively by traditional collective bargaining procedures. As a result, several attempts have been made by the parties themselves particularly in the United States to supplement the collective bargaining process by setting up machinery to foster joint consultation and problem-solving in a broader area on a year-round basis. The importance of these experiments is that they are based on a belief that despite conflicting interests, voluntary joint continuous study and action can be effective in mitigating industrial unrest and crippling strikes. These developments are too recent and complex for us to attempt a general assessment of their significance at this time. They are, however, related to the matter of conciliation and mediation and may greatly influence its role and function.
Today the demands on conciliation services are great. In the future it seems that they will increase. As a result of a variety of factors—a booming economy, acceleration of technological change, inflationary pressures and a tight labour market—both union strength and unrest in the labour-management relations field are on the