§ 1208.2 Place at which information may be obtained. Any individual, carrier, or labor organization desiring information regarding the operations of the NMB should communicate directly with the Executive Secretary of the NMB. General inquiries for information concerning the Board should also be addressed to the Executive Secretary, National Mediation Board, Washington, D.C. 20572. § 1208.3 General policy. (a) Public policy and the successful effectuation of the NMB's mission require that Board members and the employees of the NMB maintain a reputation for impartiality and integrity. Labor and management and other interested parties participating in mediation efforts must have assurance, as must labor organ`zations and individuals involved in questions of representation, that confidential information disclosed to Board members and employees of the NMB will not be divulged, voluntarily or by compulsion. (b) Notwithstanding this general policy, the Board will under all circumstances endeavor to make public as much information as can be allowed. § 1208.4 Material relating to representation function. (a) The documents constituting the record of a case, such as the notices of hearing, motions, rulings, orders, stenographic reports of the hearing, briefs, exhibits, findings upon investigation, determinations of craft or class, interpretations, dismissals, withdrawals, and certifications, are matters of official record and are available for inspection and examination during the usual business hours at the Board's offices in Washington. (b) This part notwithstanding, the Board will treat as confidential the evidence submitted in connection with a representation dispute and the investigatory file pertaining to the representation function. § 1208.5 Material relating to mediation function-confidential. (a) All files, reports, letters, memoranda, documents, and papers (hereinafter referred to as confidential documents) relating to the mediation function of the NMB, in the custody of the NMB or its employees relating to or acquired in their mediatory capacity under any applicable section of the Railway Labor Act of 1926, as amended, are hereby declared to be confidential. No such confidential documents or the material contained therein shall be disclosed to any unauthorized person, or be taken or withdrawn, copied or removed from the custody of the NMB or its employees by any person or by any agent of such person or his representative without the explicit consent of the NMB. (b) However, the following specific documents: Invocation or proffer of mediation, the reply or replies of the parties, the proffer of arbitration and replies thereto, and the notice of failure of mediatory efforts in cases under section 5, First, of the Railway Labor Act, as amended, are matters of official record and are available for inspection and examination. (c) Interpretations of mediation agreements by the NMB, arising out of section 5, Second, of the Railway Labor Act, as amended, are public records and are therefore open for public inspection and examination. § 1208.6 Compliance with subpoenas. (a) No person connected in any offiIcial way with the NMB shall produce or present any confidential records of the Board or testify on behalf of any party to any cause pending in any court, or before any board, commission, committee, tribunal, investigatory body, or administrative agency of the U.S. Government, or any State or Territory of the United States, or the District of Columbia, or any municipality with respect to matters coming to his knowledge in his official capacity or with respect to any information contained in confidential documents of the NMB, whether in answer to any order, subpoena, subpoena duces tecum, or otherwise without the express written consent of the Board. (b) Whenever any subpoena or subpoena duces tecum calling for confidential documents, or the information contained therein, or testimony as described above shall have been served on any such person, he will appear in answer thereto, and unless otherwise expressly permitted by the Board, respectfully decline, by reason of this section, to produce or present such confidential documents or to give such testimony. [32 F.R. 15831; Nov. 17, 1967] APPENDIX C Railway Labor Legislation 1888-1934 An analysis of the amendments to the Railway Labor Act, adopted June 21, 1934, is given in the opening section of the Board's report. In the second section the legislation that preceded these amendments was referred to but not discussed because of limitation of space. Following is a review of this legislation showng the development of the various provisions from the first law of 1888 to the Railway Labor Act of 1926 which was the subject of the amendments. 1. THE FIRST ACT DEALING WITH RAILWAY LABOR, 1888 The first of the laws dealing with labor relations on the railroads was approved by President Cleveland on October 1, 1888. This law provided two methods of adjusting disputes between railway companies and their employees which threatened to interrupt interstate commerce: (1) Voluntary arbitration, (2) investigation. At the request of either party, and if the other party accepted, a dispute was to be submitted for decision to a board of three arbitrators, one appointed by each party, and a chairman selected by the two. The creation of such a board was not only dependent upon the consent of both parties, but no provision was made for enforcement of any award rendered. The act also authorized the appointment by the President of a temporary commission to investigate the causes of any labor dispute on the railroads, of which the United States Commissioner of Labor was to be chairman, with two additional commissioners appointed by the President. The services of the commission might be tendered by the President for the purpose of settling a controversy or might be applied for by one of the parties or by the executive of a State. During the 10 years that the law was on the statute books the arbitration provisions were never used, although this was considered the most important feature of the law and was the subject of prolonged debate in Congress. The investigation provisions of the act were used only once, during the famous Pullman strike of 1894. The investigating com. mission could do little to settle the strike, but it made recommendations for a permanent commission of three members to be appointed, which was to have, in the field of railway labor, authority similar to that of the Interstate Commerce Commission in the field of railway rates— the decisions of such a commission to be binding on the parties. It also recommended legislation to encourage the incorporation of labor organizations. No action was taken on these and other recommendations made by the commission, but later legislation did embody some of its suggestions.1 2. ERDMAN ACT OF 1898 The ineffectiveness of the Act of 1888 was generally recognized for all through the 10 years of its existence bills were being introduced and discussed in Congress for additional railway labor legislation. Finally the Erdman Act was adopted on May 19, 1898, and approved by the President on June 1, 1898. The essential differences between this law and the previous act were that it inaugurated, for the first time, the policy of Government mediation and conciliation of labor disputes on the ralroads. The United States Commissioner of Labor and the Chairman of the Interstate Commerce Commission were required, upon request of either party to a controversy concerning wages, hours, or conditions of employment that seriously interrupted or threatened to interrupt interstate commerce, to "put themselves in communication with the parties to such controversy, and * use their best efforts, by mediation and concilation to amicably settle the same." The investigation features of the act of 1888 were omitted from the new law, but the provisions for voluntary arbitration were retained and strengthened in several respects. It was provided that if the mediation and conciliation efforts of the commissioners should be unsuccessful, then the commissioners should "at once endeavor to bring about an arbitration of said controversy," and the act went on to provide details for such arbitrations. A board of 3 was to be appointed as in the previous act, but if the 2-party arbitrators could not agree on a neutral chairman within 5 days, he was to be appointed by the 2 commissioners of conciliation. The awards of such arbitraton boards were made final and conclusive upon the parties, were to remain in effect for a period of 1 year, and provision was made for their enforcement. The act provided that the parties should enter into an agreement to arbitrate and acknowledge the same before a notary public or a clerk of a Federal court. While such arbitration was pending "the status existing immediately prior to the dispute shall not be changed." It was also made unlawful for the carrers to discharge employees and for employees or organizations to engage in strikes during the pendency of arbitration under the act. And for 3 months after an award was rendered 30 days' 1 Bulletin, U.S. Bureau of Labor Statistics, No. 303-Use of Federal Power in Settlement of Railway Labor Disputes, pp. 13–14. notice was required of intention to quit by an employee or to discharge by the carrier A distinction was made between employees who belonged to labor organizations and those who did not. Arbitration awards to which a labor organization was a party were not binding upon individual employees not members of the organizations, "unless the said individual employees shall give assent in writing to become parties to said arbitration." Further, arbitration agreements were to be executed only by labor organizations, except that individual employees might sign such agreements when they could show that they "represent or include a majority of all employees in the service of the same employer and in the same group or class, and assurance given that awards would be lived up to by all such employees." The law was made applicable only to those who were engaged in train operation or train service where organization was most extensive. A curious provision appeared in this law that has been eliminated from all the succeeding acts. It required any trade unions which had been incorporated under an act of Congress, adopted in 1886, to expel any member who participates in or instigates force or violence during strikes, lockouts, or boycotts, or who attempts to prevent others from working through violence, threats, or intimidation.2 Another important feature of this act was that it prohibited what are now known as "yellow-dog contracts." It was made a misdemeanor for any carrier to "require any employee or any persons seeking employment, as a condition of such employment, to enter into an agreement, either written or verbal, not to become or remain a member of any labor corporation, association, or organization; or (to) threaten any empoyee with loss of employment or (to) unjustly discriminate against any employee because of this membership in such labor corporation, association, or organization;" or to conspire to prevent employees who quit or were discharged from obtaining other employment. This section of the law was declared unconstitutional by the United States Supreme Court in the case of Adair v. United States (208 U. S. 161, 1908). The first attempt to use the mediation and conciliation provisions of the Erdman Act was unsuccessful, the railroads refusing to enter into any proceedings. Thereafter for about eight years no use whatever was made of the law. But beginning in December 1906 with a dispute on the Southern Pacific Railroad and until the law was repealed in 1913, 61 cases were settled under the provisions of the act: 26 by mediation alone, 10 by mediation and arbitration, and 6 by arbitration alone. All the 2 An act to Legalize the Incorporation of National Trade Unions, ch. 567, U.S. Stat. L., vol. 24, 1885-87, p. 86, approved June 29, 1886. This act was repealed 1932, when it was discovered that no trade unions were incorporated under it, but that it had been used only to incorporate 28 Texas insurance companies. (House Reports on Public Bills, vol. III, 72d Cong., 1st sess. Rept. No. 1763). awards were fully complied with except one which was questioned in the courts, but which was later settled by agreement of the parties.3 3. NEWLANDS ACT, 1913 This experience during the last half of the period the Erdman Act was in effect made it evident that it was mediation and not arbitration on which the Government must place its main reliance for the settlement of labor disputes. The Newlands Act, adopted in 1913, established a permanent Board of Mediation and Conciliation, consisting of a commissioner of mediation and conciliation to be appointed by the President, and who was to give his full time to the work, together with two additional commissioners designated by the President from among other officials of the Government. The act also created the position of an assistant commissioner of mediation and conciliation and authorized him to act for the Board in individual cases. The same duties of using the best efforts to bring the parties to disputes to agreement by mediation and conciliation were imposed on this permanent Board and its staff as were formerly exercised by the Commissioner of Labor and the Chairman of the Interstate Commerce Commission. And when these efforts proved unsuccessful, they were "to endeavor to induce the parties to submit their controversy to arbitration," as in the Erdman Act. The arbitration provisions were changed in the new act to permit the appointment of boards of six members instead of three, in order to avoid objections that had been raised against "one-man decisions" made by the third or neutral arbitrator; and the time within which arbitration boards were required to render their decisions was extended beyond the limit of 30 days fixed in the Erdman Act. If the parties failed to select any arbitrators the Board of Mediation and Conciliation was authorized to name them. The new law did not extend the jurisdiction of the Board beyond the employees engaged in train operation or train service, but it added a provision which went a step beyond mediation toward compulsory adjudication of certain kinds of disputes. Whenever a controversy arose over the meaning or application of any agreement, that had been reached through mediation under the provisions of the act, then either party to such agreement might apply to the Board for an expression of opinion on the question and it was obligatory upon the Board, upon receipt of such request, to give its opinion as soon as practicable. This would have made the Mediation and Conciliation Board a quasi-judicial body for interpreting and applying agreements reached through mediation similar to the present National Railroad Adjustment Board. But |