The Federal Mediation and Conciliation Service was established by Title II of the Labor- Management Relations Act (Taft-Hartley) in 1947 as an independent agency whose major mission was to prevent and minimize labor-management disputes affecting interstate commerce by providing mediation, conciliation, and voluntary arbitration. All mediation and conciliation functions of the Secretary of Labor and the United States Conciliation Service were transferred to FMCS at that time. This mission includes both the private and public sectors, except for the railroad and airline industries, which are covered by the Railway Labor Act and the National Mediation Board.
In 1978, the Civil Service Reform Act directed FMCS to assist with dispute resolution in federal sector labor disputes. The Labor-Management Cooperation Act amended the Taft-Hartley Act in 1978 and authorized and directed FMCS to encourage labor-management cooperative activities. It also authorized the issuance of grants to support joint labor-management activities conducted by plant, area, public sector, and industry-wide committees.
In 1990, the agency was authorized by the Administrative Dispute Resolution Act and the Negotiated Rulemaking Act to assist other Federal agencies in resolving disputes arising out of grants, contracts, licenses, or other agency administrative actions, and to assist in the process of negotiated rulemaking. The Administrative Dispute Resolution Act of 1996 amended and permanently reenacted these 1990 Acts.
The National Performance Review, conducted by Vice President Gore, recommended creation of the National Partnership Council to promote the formation of labor-management partnerships in the Federal government as a way of reforming government. On October 1, 1993, the President issued Executive Order 12871 directing the formation of the Council and naming the Director of Federal Mediation and Conciliation Service as one of its eleven principal members. Guidance on the Executive Order directed Federal agencies to provide systematic training of federal employees in Alternate Dispute Resolution techniques and interest-based bargaining approaches, and named FMCS a training source. FMCS has made its mediation and other services available to federal sector parties in an effort to avoid costly litigation and adversarial disputes. This training of federal employees in government agencies has had a substantial impact on the workload of the Service.
Over the years, Congress and the Executive Branch have authorized FMCS to perform a variety of dispute resolution functions as well as to assist in the improvement of labor-management relationships. Specific statutory and other authorizations of agency programs are described below.
The Labor-Management Relations Act of 1947 (Public Law 80-101, 29 U.S.C. Sec. 173) directs the Service to prevent or minimize interruptions of the free flow of commerce growing out of labor disputes by helping the parties settle such disputes through mediation. Parties are required to notify the Service 30 days prior to a contract termination or modification date so that mediation services may be proffered.
The Act establishes a special procedure for threatened or actual strikes which in the opinion of the President imperil the national health or safety. In such a situation, the President may appoint a board of inquiry to ascertain the facts with respect to the dispute. After receipt of the report, the President may seek to enjoin the strike for not more than 80 days, and a court may do so if it finds that the threatened or actual strike or lockout affects a substantial part or all of an industry and would imperil the national health or safety.
The Health Care Amendments of 1974 (Public Law 93-360, 29 U.S.C. Sec. 158(d) (amending the National Labor Relations Act) include special responsibilities to prevent or minimize work stoppages in the health care industry. In the case of this industry, FMCS must be notified 60 days before the contract termination date. A 30-day notice is required in initial bargaining situations. If, in the opinion of the Director, a strike is threatened which would interrupt the delivery of health care in a locality, the Director may appoint a board of inquiry (29 U.S.C. section 183). The board has 15 days within which to operate and file its report and recommendations; parties must maintain the status quo for 15 days thereafter while further negotiations and mediation take place. The parties are required to cooperate in any mediation efforts by FMCS.
The Civil Service Reform Act of 1978 (Public Law 95-454, 5 U.S.C. Sec. 7119) directs the Service to provide mediation assistance in disputes arising from negotiations between Federal agencies and the exclusive representatives of their employees.
The Postal Reorganization Act of 1970 (Public Law 91-375, 39 U.S.C. Sec. 1207) requires the Service to establish fact-finding panels and arbitration boards if disputes between the Postal Service and the exclusive representatives of its employees are not resolved prior to certain statutory deadlines.
Presidential Statement, March 24, 1953. The Atomic Energy Labor-Management Relations Panel was established within the Service in March 1953, by President Eisenhower, in order to ensure the uninterrupted functioning of the Atomic Energy Program without strikes or lockouts due to labor-management disputes. This Panel was moved to the Atomic Energy Commission in March 1956 but was returned to FMCS under President Carter in April 1980 and renamed the Energy Labor-Management Relations Panel (ELMRP).
Executive Order 11374, dated October 11, 1967, transferred the responsibilities of the Missile Sites Labor Commission (created by Executive Order 10946) to FMCS.
The Federal Insecticide, Fungicide and Rodenticide Act of 1978 (Public Law 95-396, 7 U.S.C. 136a(c)(f)(ii)) requires the Service to provide for the appointment of arbitrators to decide disputes concerning compensation for the use or development of pesticide registration data.
VIII. The Labor-Management Cooperation Act of 1978 (Public Law 95-524, 29 U.S.C. 175a) amended sections 175 and 302 of the Labor -Management Relations Act and authorizes and directs the Service to encourage and support joint labor-management activities conducted by plant, area, and industry-wide committees designed to improve labor-management relationships, employment security, and organizational effectiveness. The Act authorizes the Service to provide grant funds to assist in the establishment and operation of these labor-management committees.
The Administrative Dispute Resolution Act of 1996 (Public Law 104-320) 5 U.S.C., 571,et seq. authorizes and encourages agencies to use various alternative means of dispute resolution in the federal administrative process in order to avoid the time and expense of litigation. The 1996 Act amended and permanently reenacted the Administrative Dispute Resolution Act of 1990 as well as the Negotiated Rulemaking Act of 1990. The repeal of the sunset date (expiration dates) and the reporting requirements of the Acts suggest that the ADR and regulatory-negotiation "experiments" have become well accepted processes of Federal agencies.
A lead agency or interagency committee will be designated by the President to facilitate and encourage use of alternative dispute resolution. Federal agencies are now required to consult with that lead agency or committee and are now permitted to participate in binding arbitration in some situations. Under the 1996 Act, coverage has been expanded to include additional dispute resolution techniques, such as "ombudsmen," and the use of ADR in some workplace conflicts, including Hatch Act violations, retirement, insurance, certain suspensions, removals, examinations and appointments. The 1996 Act directs FMCS to develop guidelines to expedite the acquisition of neutrals and to encourage use of alternative dispute resolution in the Federal government. Lastly, this legislation amends the Labor- Management Relations Act of 1947 (Taft-Hartley) by permanently adding section 173(f) of Title 29 of the United States Code so that FMCS may provide all forms of ADR assistance to Federal agencies. Under this legislation, FMCS continues to assist agencies in negotiated rulemaking processes as well as other ADR procedures by providing training, facilitation, mediation, and other neutral skills.
The U.S. Code of Federal Regulations at 45 CFR 90.43, issued by the Department of Health and Human Services, implementing its authority under the Age Discrimination Act of 1975, 42 U.S.C. 6101 et seq., authorizes the Service to provide mediation assistance for the resolution of age discrimination charges.
Executive Order 12871, dated October 1, 1993, established the National Partnership Council in the federal sector to foster a new form of labor-management relations throughout the executive branch and promote the principles and recommendations of the National Performance Review. The Director of FMCS serves as a member of this Council. The goal is to foster good government through the formation of labor-management partnerships.
Executive Order 12983, dated December 21, 1995, extends the National Partnership Council in the federal sector for two more years and continues the FMCS role.
The Air Traffic Management Performance Improvement Act of 1996 (Public Law 104-264, 49 U.S.C. Section 40122, directs the FMCS to mediate disputes between the Administrator of the Federal Aviation Administration and its employee representatives if these bargaining parties fail to reach a negotiated agreement.