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Public interest in collective bargaining Jelking, Robert Paul 1969

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THE PUBLIC INTEREST IN COLLECTIVE BARGAINING: AN ANALYSIS OF THE CHANGING ROLE OF THE GOVERNMENT by ROBERT PAUL JELKING B.Sc., University of B r i t i s h Columbia, 19^5 A THESIS SUBMITTED .IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF BUSINESS ADMINISTRATION i n the Department of COMMERCE AND BUSINESS ADMINISTRATION We accept t h i s thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA A p r i l , 1969 In p r e s e n t i n g t h i s t h e s i s i n p a r t i a l f u l f i l m e n t o f t h e r e q u i r e m e n t s f o r an a d v a n c e d d e g r e e a t t h e U n i v e r s i t y o f B r i t i s h C o l u m b i a , I a g r e e t h a t t h e L i b r a r y s h a l l make i t f r e e l y a v a i l a b l e f o r r e f e r e n c e a n d S t u d y . I f u r t h e r a g r e e t h a t p e r m i s s i o n f o r e x t e n s i v e c o p y i n g o f t h i s t h e s i s f o r s c h o l a r l y p u r p o s e s may b e g r a n t e d b y t h e Head o f my D e p a r t m e n t o r b y h i s r e p r e s e n t a t i v e s . I t i s u n d e r s t o o d t h a t c o p y i n g o r p u b l i c a t i o n o f t h i s t h e s i s f o r f i n a n c i a l g a i n s h a l l n o t b e a l l o w e d w i t h o u t my w r i t t e n p e r m i s s i o n . D e p a r t m e n t o f Commerce and Business Administration The U n i v e r s i t y o f B r i t i s h C o l u m b i a V a n c o u v e r 8 , C a n a d a D a t e March,' 1969 ( i ) ABSTRACT Problem This thesis attempts to determine i f the Canadian fede-r a l and p r o v i n c i a l governments are increasing t h e i r assertion of the public i n t e r e s t i n the c o l l e c t i v e bargaining process. The primary concern i s to determine to what extent the govern-ment, through i t s new labour l e g i s l a t i o n w i l l be able to a f f e c t the q u a l i t y of c o l l e c t i v e agreements. The q u a l i t y of c o l l e c t i v e agreements can be affected d i r e c t l y through a r b i t r a t i o n or can be affected i n d i r e c t l y by influencing the power positions of the negotiating p a r t i e s . Method of Investigation The f i r s t problem which i s tackled i s the d e f i n i t i o n of the public i n t e r e s t . The public i n t e r e s t i s a term now being used i n labour l e g i s l a t i o n , f o r which a precise d e f i n i t i o n i s not e a s i l y derived. A l i t e r a t u r e analysis i s undertaken to develop a conceptual framework of the public i n t e r e s t . Since t h i s i s an i n v e s t i g a t i o n of the changing r o l e of the government, i t i s necessary to e s t a b l i s h the t r a d i t i o n a l r o l e of the government i n the c o l l e c t i v e bargaining process. This i s accomplished by examining less recent government l e g i s -l a t i o n as well as case studies of the applications of the U.S. Taft-Hartley Act. The public employees of Canada and the United States are treated as a s p e c i a l case. Recent l e g i s l a t i v e developments i n ( i i ) both countries have resulted i n fed e r a l public servants to be-come active i n c o l l e c t i v e bargaining. These recent develop-ments consist i n Canada of the Public Service S t a f f Relations Act, and i n the United States of the Executive Order 10$99. The new developments i n p r o v i n c i a l labour l e g i s l a t i o n consist of B.C^s B i l l 3 3 , Saskatchewan^ E s s e n t i a l Services Emergency Act, and Ontario's Rand Royal Commission Report. These two Acts and the Royal Commission Report are analyzed c r i t i c a l l y f o r t h e i r p o t e n t i a l e f f e c t upon the c o l l e c t i v e bar-gaining process. Conclusions The l i t e r a t u r e analysis of the public i n t e r e s t reveals that there i s no u n i v e r s a l l y acceptable d e f i n i t i o n of the public i n t e r e s t . The public i n t e r e s t can only be meaningfully used within a s i t u a t i o n a l framework. In other words, the concept i s capable of d e f i n i t i o n only within a s p e c i f i c s i t u a t i o n . Despite the f a c t that the concept i s not l i k e l y ever to be u n i v e r s a l l y defined, i t will..undoubtedly continue to be widely used. The p o l i c y of the Canadian federal and p r o v i n c i a l govern ments regarding c o l l e c t i v e bargaining has t r a d i t i o n a l l y been to a s s i s t the parties to come to an agreement. The role of the government has not been one of interference. I t has consisted s o l e l y of f a c i l i t a t i n g agreements by postponing work stoppages and by providing mediators. Although the effectiveness of these measures can be questioned, the intent i s quite clear. ( i i i ) T h e r e c e n t p r o v i n c i a l l e g i s l a t i o n s e e m s t o r e i n f o r c e t h e p r o p o s i t i o n t h a t t h e s t r i k e i s a n u n d e s i r a b l e f o r m o f s o c i a l c o n f l i c t . I t i s f e l t t o b e u n d e s i r a b l e i n t h e s e n s e t h a t t h e l e g i s l a t i o n e n c o u r a g e s t h e p a r t i e s t o c o l l e c t i v e n e g o t i a t i o n s t o s e t t l e t h e i r d i s p u t e w i t h o u t r e s o r t i n g t o w o r k s t o p p a g e s . A t t h e s a m e t i m e , i t r e c o g n i z e s t h a t t h e t h r e a t o f a w o r k s t o p -p a g e i s p a r t o f t h e c o l l e c t i v e b a r g a i n i n g p r o c e s s . T h e n e w l e g i s l a t i o n f o r m a l i z e s t h e c o n c e p t t h a t t h e r e a r e c e r t a i n k i n d s o f c o l l e c t i v e b a r g a i n i n g r e l a t i o n s h i p s w h i c h a r e h e a v i l y e n d o w e d w i t h t h e p u b l i c i n t e r e s t . W h e r e a s g o v e r n -m e n t a c t i v i t y i n t h e s e k i n d s o f d i s p u t e s h a d o c c u r r e d o n a n a d h o c b a s i s i n t h e p a s t , t h e R a n d R e p o r t , B . G . ' s B i l l 33, a n d t h e S a s k a t c h e w a n l e g i s l a t i o n e s t a b l i s h e d m e c h a n i s m s w h i c h w i l l p r o -v i d e f o r t h e a s s e r t i o n o f t h e p u b l i c i n t e r e s t i n e x t r a o r d i n a r y l a b o u r d i s p u t e s . I n s o m e c a s e s , a n d w h e r e t h e p a r t i e s c a n n o t c o m e t o a n a g r e e m e n t w i t h o u t r e s o r t i n g t o a w o r k s t o p p a g e , t h e n e w l e g i s l a t i o n w i l l p r o v i d e a n a g e n c y o r m e c h a n i s m t h r o u g h w h i c h t h e g o v e r n m e n t c a n s u b m i t t h e d i s p u t e t o c o m p u l s o r y a r b i -t r a t i o n . TABLE OF CONTENTS CHAPTER Page I. INTRODUCTION 1 A. Purpose 2 B. Data 2 1. The Public Interest as an Abstract Concept 2 2. The Tr a d i t i o n a l Role of Government.. 3 3. The United States National Emergency-Disputes 3 4. Federal Public Employment 3 5. The Rand Report, B i l l 33 and the Saskatchewan E s s e n t i a l Services Act 4 I I . DEFINING THE PUBLIC INTEREST 5 A. General 5 B. The V a l i d i t y of the Concept 7 C. Two Typologies of the Public Interest ... 12 1. Niemeyer's Typology 13 2. Schubert's Typology 16 D. Finding a Common Thread- 1$ E. Summary 21 I I I . THE TRADITIONAL ROLE OF GOVERNMENT 24 A. General 24 B. The Federal C o n c i l i a t i o n Act (1900) 25 C. The Railway Disputes Act (1903) 26 D. The I n d u s t r i a l Disputes Investigation Act (1907) 27 E. Wartime Labour L e g i s l a t i o n 2$ F. I n d u s t r i a l Relations & Disputes I n v e s t i -gation Act (1946) 29 G. Conclusions 30 Table of Contents (continued) Page CHAPTER IV. THE TAFT-HARTLEY ACT: EMERGENCY PROVISIONS ... 33 A. Introduction 33 B. The Truman Period 1947-1952 36 1. Meatpacker's Strike 1943 36 2. Coal Miner's Pension Dispute 1943 .. 33 3. The Telephone Dispute 1943 39 C. The Eisenhower Period 1952-1959 40 1. Atomic Energy Disputes 1954 40 2. Basic Steel Industry Strike 1959 ... 42 D. The Kennedy-Johnson Period 1960-1963 44 1. Maritime Industry Dispute 1962 45 2. The I.L.A. Dispute 1964-1965 46 E. Conclusions and Summary 47 V. THE SPECIAL CASE OF THE PUBLIC EMPLOYEE 52 A. Introduction 52 B. The United States Federal L e g i s l a t i o n ... 54 1. Bargaining Substance 55 2. Power Structure 57 C. The Canadian Federal System 59 1. Bargaining Substance 60 2. Power Structure 63 D. Conclusions 67 VI. THE SASKATCHEWAN LABOUR RELATIONS SYSTEM 71 A. Introduction 71 B. The Trade Union Act 72 C. The E s s e n t i a l Services Emergency Act .... 74 D. Summary 75 Table of Contents (continued) CHAPTER Page VII. THE BRITISH COLUMBIA APPROACH - BILL 33 77 A. Before B i l l 33 77 B. The Mediation Commission Act 79 C. The Public Interest 81 D. The Public Service 82 E. Summary and Conclusions 83 VIII. AN ONTARIO PROPOSAL: THE RAND COMMISSION REPORT 87 A. Introduction 87 B. General Recommendations 89 C. Public Employment 91 D. E s s e n t i a l Services and/or Industries ... 92 E. Summary and Conclusions 94 IX. SUMMARY AND CONCLUSIONS 97 A. The Public Interest 97 B. The Tr a d i t i o n a l Role of Government 101 C. The New Role of Government 105 D. The Future of C o l l e c t i v e Bargaining .... 109 1. Banning Strikes 109 2. The Need f o r an Alternative 110 3. Possible Changes i n the Nature of Col l e c t i v e Bargaining I l l 4. Contents of C o l l e c t i v e Agreements.. 112 5. Conclusions 112 BIBLIOGRAPHY 114 Chapter II - The Problems of Defining Public Interest 114 Chapter III - The Tr a d i t i o n a l Role of Govern-ment 117 Chapter IV - Taft-Hartley Emergency Provi-sions 117 Table of Contents (continued) CHAPTER Page BIBLIOGRAPHY (continued) Chapter V - The Case of the Public Servants 119 Chapter VI -.The Saskatchewan Labour Relations Systems 120 Chapter VII - The B.C. Approach - B i l l 33 121 Chapter VIII - An Ontario Proposal: The Rand Commission Report 121 Preliminary Bibliography 122 -1-C H A P T E R I I N T R O D U C T I O N R e c e n t l e g i s l a t i o n i n B r i t i s h C o l u m b i a a n d S a s k a t c h e w a n , a s w e l l a s l e g i s l a t i v e p r o p o s a l s i n O n t a r i o , h a v e s p a r k e d i n t e -r e s t a n d c o n t r o v e r s y i n t h e c o n c e p t o f t h e p u b l i c i n t e r e s t a s i t a p p l i e s t o t h e c o l l e c t i v e b a r g a i n i n g p r o c e s s . T h e p u b l i c i n -t e r e s t i s n o t a n e w c o n c e p t ; P l a t o a n d A r i s t o t l e s p o k e o f i t , a n d s o d i d A d a m S m i t h e v e n t h o u g h h e c a l l e d i t t h e " c o m m o n w e a l " . T h e a s s e r t i o n o f t h e p u b l i c i n t e r e s t i n t h e c o l l e c t i v e b a r g a i n -i n g p r o c e s s i s r e l a t i v e l y r e c e n t , h o w e v e r . W h e n a s t u d y i s m a d e w h i c h i n v o l v e s t h e p u b l i c i n t e r e s t , t w o a s y e t u n a n s w e r e d q u e s t i o n s a l w a y s c r o p u p : 1. W h o s h o u l d d e t e r m i n e t h e p u b l i c i n t e r e s t ? , 2. H o w s h o u l d t h e p u b l i c i n t e r e s t b e d e t e r m i n e d ? M a n y s c h o l a r s h a v e a t t e m p t e d t o a n s w e r t h e s e t w o q u e s t i o n s ; t h o s e s e a r c h i n g f o r e t e r n a l t r u t h s h a v e a l l f a i l e d t o p r o d u c e a u n i v e r s a l d e f i n i t i o n o f t h e p u b l i c i n t e r e s t . T h e a n s w e r s t o t h e s e q u e s t i o n s a r e i n e v i t a b l y v a l u e l a d e n b e c a u s e o f t h e v e r y n a t u r e o f t h e q u e s t i o n s t h e m s e l v e s . A f a r l e s s v a l u e l a d e n a p p r o a c h t o t h e p u b l i c i n t e r e s t i s t o a t t e m p t t o a n s w e r t h e q u e s t i o n : " W h o h a s a s s e r t e d t h e p u b l i c i n t e r e s t , a n d u n d e r w h a t c i r c u m s t a n c e s ? " T h i s k i n d o f a p p r o a c h d o e s n o t s t r a y i n t o t h e a r e a o f ' i v a l u e j u d g e m e n t s b u t p r e s e n t s a p r a g m a t i c a p p r o a c h t o t h e p u b l i c i n -t e r e s t . I t s u f f e r s f r o m t h e d e f i c i e n c y t h a t i t d o e s n o t p r e s e n t a g u i d e f o r t h e f u t u r e a p p l i c a t i o n o f t h e p u b l i c i n t e r e s t . I t - 2 -has the advantage that the public i n t e r e s t can thereby be de-fin e d i n terms of l e g i s l a t i o n and precedents. The public i n t e r e s t i n c o l l e c t i v e bargaining could also be c a l l e d the p u b l i c T s i n t e r e s t . In other words, i t represents the i n t e r e s t s of the party not d i r e c t l y represented during the c o l l e c t i v e bargaining sessions. C o l l e c t i v e bargaining i s , f o r the most part, a confrontation and eventual accommodation of two s e l f i n t e r e s t s . Consequently, the public i n t e r e s t i s asser-ted by forces operating outside of the c o l l e c t i v e bargaining process. These external forces consist of s o c i a l sanctions and l e g a l sanctions. I t i s upon these l e g a l or more formal sanc-tions that t h i s thesis w i l l focus i t s attention. A. Purpose: The purpose of t h i s thesis i s to examine whether recent government l e g i s l a t i o n and l e g i s l a t i v e proposals represent a new i n t e r p r e t a t i o n by the government of what constitutes the public i n t e r e s t . F i r s t of a l l , i t w i l l be necessary to deter-mine the t r a d i t i o n a l nature of the public inte r e s t i n c o l l e c -t i v e bargaining. Secondly, by analyzing new l e g i s l a t i o n and a proposal f o r new l e g i s l a t i o n , i t w i l l be possible to determine^ what, i f any changes have taken place i n the nature of the pu-b l i c i n t e r e s t i n c o l l e c t i v e bargaining. B. Data: 1. The Public Interest as an Abstract Concept A survey of the l i t e r a t u r e w i l l be made to f i n d at least a t h e o r e t i c a l l y acceptable concept of the public i n t e r e s t . I f the public i n t e r e s t cannot be defined as a general concept, then i t w i l l be related to concepts which can be more easily and spec i f i c a l l y dealt with and which relate to the collective bar-gaining process. 2. The Traditional Role of the Government The traditional role of the government in the collective bargaining process can be determined by analyzing past federal and provincial legislation. The provincial legislation by and large follows the pattern of the federal laws governing collec-tive bargaining. Emphasis w i l l therefore be placed upon analy-zing the federal government's ac t i v i t i e s in the collective bar-gaining process. 3. The United States National Emergency Disputes No analysis of the role of the public interest in collec tive bargaining can be complete without including a brief des-cription of the American experience under the Taft Hartley emer-gency dispute provisions. The Taft-Hartley Act has provided the bulk of the case histories related to public interest disputes. From histori c a l data provided by the only available indexed source, The New York Times, case histories w i l l be pieced toge-ther of several national emergency disputes. It i s expected that the American experience w i l l reveal whether the public i n -terest i s an economic, a social, or a p o l i t i c a l concept or whether the public interest i s a combination of these concepts. 4-. Federal Public Employment Two public service collective bargaining systems are br i e f l y described. The data for the U.S.system was obtained from the Executive Order 1093S which created i t . The data for -4 -the Canadian system of c o l l e c t i v e bargaining was obtained from the Heeney Report and from the Public Service S t a f f Relations Act which encompasses not only the Heeney Report's recommenda-tions but also implications not covered i n the Report. The public employees' c o l l e c t i v e bargaining system appears to deserve separate attention primarily because of the inherently s p e c i a l status of the government employer. Only the Canadian and American federal approaches w i l l be examined i n d e t a i l . 5. The Rand Report, B i l l 33, and the Saskatchewan E s s e n t i a l  Services Act The analysis on these three pieces of l e g i s l a t i o n was reasonably simple and straightforward. Neither B i l l 33 nor the Saskatchexiran l e g i s l a t i o n have been operating long enough to i n -clude examples of a p p l i c a t i o n . The Rand report was only r e -leased i n August of 1963, and, although i t does contain recom-mendations fo r l e g i s l a t i o n , the recommendations have not yet been acted upon. The analysis f o r these three items of l e g i s -l a t i o n focussed upon two aspects of government a c t i v i t y : (i ) attempts to influence the content- of c o l l e c t i v e agreements ( i i ) attempts to influence the power positions of the disputants. - 5 -CHAPTER II DEFINING THE PUBLIC INTEREST A. General As f a r back as Adam S m i t h s use of the term commonweal, man has never been able to properly define the nature of the "public i n t e r e s t " . This thesis attempts just such a d e f i n i t i o n despite the generations of recognized scholars who have f a i l e d i n s i m i l a r attempts. The problems of d e f i n i t i o n of the public i n t e r e s t (or commonweal) ar i s e when an attempt i s made to f i n d an a l l encompassing, universal d e f i n i t i o n capable of withstand-ing the changes i n s o c i a l structure brought about by the passage of time. Many scholars have devoted considerable energy to de-f i n i n g t h i s elusive term "public i n t e r e s t " . Few have succeeded i n defining the term i n even the most general terms. The scholars can choose between two positions. Those i n search of precise d e f i n i t i o n s and not w i l l i n g to s e t t l e f o r anything " l e s s " can quit i n f r u s t r a t i o n and suggest that scholars would better spend t h e i r time i n the analysis of concepts l i k e l y to lead to concrete and useful r e s u l t s . Others, despite being equally f r u s t r a t e d , can refuse to abandon the study of the con-cept, merely because i t has eluded precise d e f i n i t i o n . They can chose to l i v e with the present use of the term rather than deny that i t plays any useful r o l e i n our society. More complete arguments f o r these two positions w i l l be examined subsequently i n t h i s chapter. Ideally, a perfect d e f i n i t i o n of the public i n t e r e s t would be an abstract concept capable of being applied to a l l phases of private-public i n t e r a c t i o n . It would lig h t e n the burden of decision makers i n the f i e l d s of economic planning, l e g i s l a t i v e and j u d i c i a r y a c t i v i t y , and s o c i a l planning as well as a s s i s t various regulatory agencies i n t h e i r p o l i c y formula-t i o n s . I d e a l l y a single d e f i n i t i o n would enable us to "prove" that: 1. counter c y c l i c a l f i s c a l measures are required whenever unemployment reaches the 4 percent l e v e l 2. zoning regulations are necessary to protect aesthetic i n t e r e s t s 3. c e r t a i n regulatory agencies are needed to administer certain government p o l i c i e s 4. c e r t a i n s t r i k e s i n the private sector of the economy require government intervention No such precise d e f i n i t i o n of t h i s elusive concept occurs however. Despite t h i s lack of d e f i n i t i o n , both the j u -d i c i a r y and the l e g i s l a t u r e s have f e l t i t necessary to attach to c e r t a i n of t h e i r p o l i c i e s and decisions a certain q u a l i t y of "public i n t e r e s t . " This q u a l i t y has been presented under va-rious names a l l more or less synonimous—if not q u a n t i t a t i v e l y then c e r t a i n l y q u a l i t a t i v e l y . In the United States, f o r example, the Taft-Hartley Act speaks of "The Public Health and Safety," while Saskatchewan*s E s s e n t i a l Services Emergency Act of 1966 prescribes c e r t a i n actions to be taken i n the "public i n t e r e s t " . In B r i t i s h Columbia, as recently as 1963, wide sweeping powers were granted to a regulatory agency to act i n "the public i n -t e r e s t . " -7-"Public i n t e r e s t " p o l i c i e s are not exclusive to the f i e l d of labour r e l a t i o n s . A n t i - t r u s t l e g i s l a t i o n has existed i n Canada since 1889 /Anti Combines Act/ 7 and i n the United States since 16*90 /the Sherman Act/. Both these acts .expressed the public i n t e r e s t by regulating the r e l a t i o n s h i p between busi-nesses themselves as well as between businesses and the p u b l i c . B. The V a l i d i t y of the Public Interest Concept A question comes to mind i n r e l a t i o n to the d e f i n i t i o n a l problem of t h i s "public i n t e r e s t " phrase. I f t h i s phrase has so f a r defied precise d e f i n i t i o n why not abandon i t s use and related attempts to define i t ? There are two schools of thought i n answer to t h i s question. One group i s s c e p t i c a l of the term i t -s e l f , of the people who use i t to j u s t i f y t h e i r p o l i c y decisions, and of the people who continue i n t h e i r attempts to define i t . The other group of scholars are simply reacting to the reality, of the s i t u a t i o n . They argue that as long as t h i s notorious descriptive phrase " i n the public i n t e r e s t " i s being used then scholars have no choice but to be concerned with i t s use and meaning. Frank J. S o r a u f e x p r e s s e s h i s f r u s t r a t i o n with the f a c t that nearly every p o l i t i c a l decision has been j u s t i f i e d by l a b e l l i n g i t " i n the public i n t e r e s t . " He complains that i t means one thing one day and the complete opposite i n another s i t u a t i o n . He concludes h i s discussion with the observation that since the public i n t e r e s t has eluded precise scholarly de-f i n i t i o n "to argue that what i s not good enough fo r the scholar s h o u l d s u i t t h e p o l i t i c i a n d o e s l i t t l e t o f u r t h e r t h e e f f e c t i v e p o l i t i c a l d i a l o g u e w h i c h o u r d e m o c r a t i c p o l i t i c s p r e s u m e s . " S o r a u f d e s c r i b e s h i s p e r c e p t i o n s o f t h e p u b l i c i n t e r e s t i n a f a s h i o n w h i c h d e s e r v e s q u o t i n g h e r e . " I n m u c h o f c o n t e m p o r a r y -u s a g e , p u b l i c i n t e r e s t m e a n s a n i n t e r e s t p o s s e s s e d b y ( a n d , p r e s u m a b l y a t l e a s t d i m l y p e r c e i v e d b y ) ' t h e p u b l i c * o r s o m e s e g m e n t o f i t ; i n t h i s s e n s e i t i s a r e a l , e m p i r i c a l l y i d e n t i -f i a b l e i n t e r e s t . A n d a t t h e s a m e t i m e i t r e f e r s t o a g o a l i n t h e i n t e r e s t o f t h e p u b l i c , w h e t h e r o r n o t t h a t p u b l i c i s o r i s n o t s u f f i c i e n t l y e n l i g h t e n e d t o g r a s p i t . " ( 3 ) I n a l e s s l o a d e d f a s h i o n h e f i n d s t h a t t h e p h r a s e " i n t h e p u b l i c i n t e r e s t " h a s c o m e t o m e a n s o m e c r i t e r i o n o r d e s i d e r a t u m b y w h i c h p u b l i c p o -l i c y m a y b e m e a s u r e d , - s o m e g o a l w h i c h p o l i c y o u g h t i d e a l l y t o p u r s u e a n d a t t a i n . " E s s e n t i a l l y w h a t M r . S o r a u f i s s c e p t i c a l a b o u t i s t h e l a c k o f d e f i n i t i o n o f w h a t g o a l s a r e t o b e p u r s u e d a n d w h o i s t o - s e t t h e s e g o a l s . H e d o e s n o t s e e m t o d e n y t h e e x i s t e n c e o f i a p u b l i c i n t e r e s t b u t m e r e l y i t s o p e r a t i o n a l u s e f u l n e s s . G l e n d o n S c h u b e r t h a s m a d e a v e r y t h o r o u g h a n a l y s i s o f t h e p h i l o s o p h i e s o f p u b l i c i n t e r e s t . ^ H e s u m s u p h i s o p i n i o n o f t h e t e r m " p u b l i c i n t e r e s t " b y c o n c l u d i n g t h a t " t h e p u b l i c i n t e r e s t c o n c e p t m a k e s n o o p e r a t i o n a l s e n s e , n o t w i t h s t a n d i n g t h e e f f o r t s o f a g e n e r a t i o n o f c a p a b l e s c h o l a r s " ( 5 ) a r K i t h a t " p o l i -t i c a l s c i e n t i s t s m i g h t b e t t e r s p e n d t h e i r t i m e n u r t u r i n g c o n c e p t s t h a t o f f e r g r e a t e r p r o m i s e o f b e c o m i n g u s e f u l t o o l s i n t h e s c i e n t i f i c s t u d y o f p o l i t i c a l r e s p o n s i b i l i t y . " ( 6 ) ^ e c r i t i c i z e s t h e u s e o f t h e p u b l i c i n t e r e s t c o n c e p t b e c a u s e i t n e i t h e r a d d s -9-to nor subtracts from the theory and methods otherwise presently ava i l a b l e f o r analyzing p o l i t i c a l behavior. Schubert does not deny the existence of a public i n t e -rest nor the frequent use made by p o l i t i c i a n s of the phrase. He simply questions the wisdom of so many scholars chasing f r u i t -l e s s l y a f t e r an a l l encompassing d e f i n i t i o n f o r t h i s public i n -terest concept when a l l of these searches have ended up i n f a i l -ure. Schubert does, however, admit that there have been many d e f i n i t i o n s of the public interest put forward, but that a l l of these d e f i n i t i o n s have been oriented towards p a r t i c u l a r circums-tances, not toward universal s i t u a t i o n s . Sorauf and Schubert have taken the stand that because the public i n t e r e s t i s a vague concept i t should be dropped from the vocabulary of p o l i t i c i a n s and that scholars too would be better to work on more useful concepts. J.R. Pennock, Gerhard Colm, and C.W. C a s s i n e l l i have taken another p o s i t i o n which i s : as long as the term i s being used, scholars should continue to seek to determine how the term i s being used and what meaning(s) i t i s intended to convey. J.R. P e n n o c k f e e l s that there i s no doubt that the public i n t e r e s t i s a vague concept. He nevertheless f e e l s that i t has some v a l i d i t y . He draws a p a r a l l e l between the term "public i n t e r e s t " and the. word beauty, both being almost impossi-ble to define i n precise terms f o r a l l cases. He makes the point that both, although being vague i n the abstract sense, lose a great deal of t h i s vagueness when applied to s p e c i f i c circumstan-ces. Both words are intended to convey a certain q u a l i t y to -10-whatever i t i s they describe. He points out that students of esthetics are i n notorious disagreement as to what constitutes beauty. Yet much of t h i s disagreement disappears when the terms are placed i n a s i t u a t i o n a l concept. Pennock maintains the usefulness of such a term as pu-b l i c i n t e r e s t . " I t i s a reminder that private r i g h t s are not exhaustive of the public i n t e r e s t ( 3 ) jn other words, he f e e l s that there i s a kind of sy n e r g i s t i c q u a l i t y about the public i n -te r e s t , or that i t i s greater than simply the sum of i n d i v i d u a l s e l f i n t e r e s t s . "A term that plays t h i s r o l e even though i t lacks p r e c i s i o n i s as valuable as i t i s inescapable. Moreover, i n many p a r t i c u l a r applications, the context of the s i t u a t i o n gives the phrase greater d e f i n i t i o n . For such uses i t has the s p e c i a l v i r t u e that i t serves as a receptacle f o r accumulating standards."(9) Gerhard Colm^O) i s even more p o s i t i v e about the desira-b i l i t y of using the term " i n the public i n t e r e s t . " He admits that denying the term any genuine meaning has both methodologi-c a l appeal to the theoris t s i n p o l i t i c a l science and i s welcomed by a l l who are t i r e d of hearing the word bandied about by those who make pretenses to idealism while i n r e a l i t y they are advoca-t i n g p a r t i c u l a r i n t e r e s t s . Nevertheless, Colm argues "that we deal more adequately with problems of economic and s o c i a l p o l i -c i es, public finance, and j u d i c i a l procedures i f we face up squarely to the meaning of the term public int e r e s t than i f we deny t h i s concept or l e t i t i n only by the back door."(H) -11-Colm maintains that p o l i t i c i a n s , statemen, judges and those concerned with the formulation of government p o l i c i e s simply could not do without t h i s "vague, impalpable but a l l c o n t r o l l i n g consideration, the public i n t e r e s t . " d 2 ) Colm further argues that the term loses much of i t s vagueness as a re s u l t of p o l i t i c a l debates, j u d i c i a l interpretations and tran s l a t i o n s into s p e c i f i c goals of economic performance and achievement. C.W. Cassinelli ( 1 3 ) also looks upon the public i n t e r e s t as a necessary t o o l of the p o l i c y maker. He scoffs at the claim that the concept i s useless as a t o o l of analysis or an aid to s c i e n t i f i c study and that therefore i t should be aban-doned from usage. "This statement i s quite i r r e l e v a n t . The public i n t e r e s t as an e t h i c a l concept has functions quite d i f f e r -ent from those of an a l y t i c models."(14) ..."The public i n t e -rest i s the highest e t h i c a l standard applicable- to p o l i t i c a l a f f a i r s . " l1^ C a s s i n e l l i claims that the e t h i c a l standard of the public i n t e r e s t can be applied to a l l phenomena relevant to public p o l i c i e s , despite i t s apparent vagueness. He admits that "the phrase i t s e l f i s expendable; even though men of p o l i t i c a l a f f a i r s continue to use i t , i t could disappear from scholarly prose with no ef f e c t whatsoever on the existence and si g n i f i c a n c e of the idea to which i t refers."(16) He goes on to argue that we cannot escape from t h i s kind of e t h i c a l standard. "The simple f a c t that men d i s t i n g u i s h between good and bad obliges us to think and write about problems of ethics, and the ultimate goals -12-of p o l i t i c a l l i f e are unquestionably among the most important of these problems."(^7) Despite the views of those whom I have chosen to c a l l the sceptics: those who propose dropping the word from current usage, there i s agreement on the following points: 1. The phrase "the public i n t e r e s t " i s i n current usage as an inescapable f a c t of p o l i t i c a l l i f e . 2. The phrase does lack d e f i n i t i o n i n a precise universal sense. 3. I t may be easier to>define f o r s p e c i f i c s i t u a t i o n s . C. Two Typologies of the Public Interest The concept of the public i n t e r e s t i s heavily involved i n p h i losophical and e t h i c a l value systems. In order to have a better conception of how value systems a f f e c t the public i n -te r e s t and hence public p o l i c y , a b r i e f analysis w i l l be made of the d i f f e r e n t kinds of r o l e s assigned to public p o l i c y . Public p o l i c y i s i n v a r i a b l y the r e s u l t of a philosophical or e t h i c a l set of values. A b r i e f description of two typologies of the public i n -t e r e s t w i l l be undertaken. The f i r s t typology i s one undertaken by Niemeyer and s p l i t s up the various theories i n terms of the r e l a t i o n s h i p between private u t i l i t y and the public i n t e r e s t . The second and "somewhat les s appealing typology i s proposed by Schubert. It i s based on W.A.R. Leys typology and concentra-tes on-the functions of public o f f i c i a l s . -13-1. Niemeyer's Typology Niemeyer's Typology(19) compares four concepts of the public i n t e r e s t as exemplified by the philosophies of 1) Plato and A r i s t o t l e , 2) Augustine and Aquinas, 3) Locke, Adam Smith, and J.S. M i l l , and 4) Marx and Lenin. Plato and A r i s t o t l e believed that a government should be run by guardians of the public i n t e r e s t who would them-selves have no private interests either i n the d i s t r i b u t i o n of goods or i n the economic welfare of the community. Material production, under t h i s system, i s relegated to the sphere of private i n d i v i d u a l concerns. A government " i s not an arrange-ment f o r the purpose of communal labour but rather f o r the p h i l o -sophical rule of the community."(20) -p^ g guardians (or the government) of the community are divested of material possessions i n order to divest them of material concerns. Plato and A r i s t o t l e f e l t that there was a r a t i o n a l element i n man's soul and that t h i s element was divine i n cha-r a c t e r . The guardians (philosopher-Kings?) of the community would express t h i s divine element; and, having been re l i e v e d of material concerns, these guardians would therefore express views not related to private interests but to the "public i n t e r e s t . " The second grouping of philosophies i s characterized by the writings of Augustine and Aquinas. This i s sometimes re-ferre d to as the Catholic e t h i c . For Augustine and Aquinas man's destiny was now perceived as the salvation of his i n d i v i -dual soul. Accordingly the a c t i v i t i e s of p o l i t i c a l governments were r e s t r i c t e d to peace order and a minimal j u s t i c e . "Function-- 1 4 -a l l y speaking an entire realm of human l i f e was staked o f f i n which governments must not i n t e r f e r e : the realm of the salvation of souls." ( 2 1 ) " H i e r a r c h i c a l l y speaking, government was l i m i t e d by the higher authority of ' natural law T to which human law ought to defer." According to the l o g i c expressed i n t h i s philosophy, "The r i g h t ordering of i n d i v i d u a l l i v e s was the c r i t e r i o n common to the sphere of the public i n t e r e s t , the e c c l e s i a s t i c a l sphere, and the private sphere. The o v e r a l l purpose of salvat i o n created order overlapping the three spheres: i t invented moral rules f o r private economic a c t i v i t i e s , drove i n d i v i d u a l r u l e r s to public acts of personal penitence and produced such hybrid phenomena as the I n q u i s i t i o n with i t s mixture of concern f o r pu-b l i c order and concern f o r i n d i v i d u a l salvation. u ( 2 2 ) The t h i r d philosophy of the public i n t e r e s t i s characte-r i z e d by the writings of Locke, Smith and M i l l . For them, the p o l i t i c a l community was intended to promote men's i n d i v i d u a l needs and aspi r a t i o n s . C i v i l society f o r Locke existed f o r the sake of private u t i l i t y . Locke f e l t that the possession of pro-perty was the chief reason f o r men un i t i n g to form s o c i e t i e s . Adam Smith added the concept of the " I n v i s i b l e Hand." He suggested that i t was the task of society as a whole to esta-b l i s h a framework of laws such that any i n d i v i d u a l i n pursuing his own s e l f i n t e r e s t would be "l e d by an i n v i s i b l e hand to pro-mote an end which was no part of his intention . . . By pursuing his s e l f i n t e r e s t man frequently promotes that of society more e f f e c t i v e l y than when he r e a l l y intends to promote i t . " ( 2 3 ) - 1 5 -Government a c t i v i t y was to be r e s t r i c t e d to creating a realm of private i n i t i a t i v e and a s p i r a t i o n . Government's a c t i v i t i e s were l i m i t e d by "the natural order of "society;" the s e l f adjusting and s e l f e q u i l i b r a t i n g system of private a c t i v i t i e s to which public laws ought to de-f e r " (24) (the free market f o r c e s ) . Consumer s a t i s f a c t i o n was the c r i t e r i o n common to the sphere of government and the sphere of the i n v i s i b l e hand and i t provided the substance of the standards of judgement: 'good government,' ' e f f i c i e n t economy.' Th e o r e t i c a l l y t h i s philosophy suggests that government a c t i v i t y i s supposed to defer to the 'natural order' of s e l f adjusting private a c t i v i t i e s . In practice however, t h i s natural order of economic private a c t i v i t i e s has lead to 1) breakdowns i n the economic system, 2) undesirable r e s u l t s , 3) f a i l u r e to provide and ensure i n d i v i d u a l s a t i s f a c t i o n . In these three cases "governments i n the name of public u t i l i t y have taken the i n v i s i b l e hand under public management."(25) Public u t i l i t y therefore i s the goal of government hence i t i s even possible to argue that the public i n t e r e s t (when motivated by Public u t i l i t y ) can point i n s o c i a l i s t i c d i r e c t i o n s . Niemeyer points out reassuringly that "retention of p r i -vate property ri g h t s i s not wholly incompatible with public d i r e c t i o n or regulation of large scale industries." ( 2 6 ) j n a n y case i f we have socialism i n the West today, " i t i s then one of the v a r i e t i e s of a l i b e r a l order that assigns to the public i n -terest the task of s a t i s f y i n g private aspirations." ( 2 7 ) -16-The l a s t philosophy of the public i n t e r e s t i s represent-ed by Marx and Lenin. In the pure sense,private property no longer exists and material production i s no longer entrusted to the i n d i v i d u a l s . "The s o c i a l order i s thus e s s e n t i a l l y the order of c o l l e c t i v e labour and i t s management . . . For the future society, the f i r s t society that w i l l be f u l l y human, Marx defines the public inte r e s t as that of labour management. ..US-Lenin (29.) has added a refinement to the ideas of Marx, predicting a period of struggle to bring about t h i s i d e a l so-ciety; he speaks of a "protracted struggle" l a s t i n g perhaps se-v e r a l l i f e t i m e s . From Lenin's ideas have "emerged a peculiar type of public i n t e r e s t , the type of i n t e r e s t that i s connected with the idea of a combat government"(30) ( a government whose purpose seems to be the f i g h t against forces holding back the t r a n s i t i o n to the i d e a l marxian s o c i e t y ) . 2 . Schubert's Typology Schubert ( 3 D developed his typology based upon an i n -vest i g a t i o n of the writings of p o l i t i c a l science t h e o r i s t s since the 1930's. He c l a s s i f i e s his ideas into three broad groups 1) R a t i o n a l i s t s ; 2) I d e a l i s t s ; 3) R e a l i s t s . The r a t i o n a l i s t s according to Schubert "envisage a po-l i t i c a l system i n which the norms are a l l given insofar as pu-b l i c o f f i c i a l s are concerned . . . The function therefore of government and bureaucratic o f f i c i a l s i s to translate the given norms into s p e c i f i c rules of government action." ( 3 2 ) The r a t i o n a l i s t s a l l agree that public p o l i c y should promote the common good which r e f l e c t s the presumed existence of various -17-common - frequently majoritarian - i n t e r e s t s . The theory offers no guidance i n determining the precise nature of the public or common i n t e r e s t s . Schubert's second category i s that of the i d e a l i s t s . He sums up t h e i r ideas of the public i n t e r e s t as follows: "The public i n t e r e s t i s what the e l i t e thinks i s good f o r the masses."(33) I d e a l i s t s apparently conceive of the decision making process as "requiring the exercise of authority i n order to engage i n s o c i a l planning by c l a r i f y i n g a vague criterion" ( 3 4 ) (the public i n t e r e s t ) . Complete reliance i s placed upon the moral and e t h i c a l preconditioning of the i n d i v i d u a l decision maker. The problem with t h i s philosophy i s that there i s no guarantee that the tyrants w i l l remain benevolent. R e a l i s t s are Schubert's l a s t c l a s s i f i c a t i o n . These t h e o r i s t s state that "the function of public o f f i c i a l s i s to engage i n the p o l i t i c a l mediation of disputes (between competing interested groups); the goals of public p o l i c y are s p e c i f i c but i n c o n f l i c t . " Hence the public i n t e r e s t i s derived from the re-solu t i o n or compromise of c o n f l i c t i n g goals. Whereas Niemeyer makes his c l a s s i f i c a t i o n s of public i n t e r e s t theories on the basis of d i f f e r e n t philosophies or s o c i a l goals, Schubert, on the other hand bases his c l a s s i f i c a -t i o n on a more mechanistic l e v e l : who i s to interpret and apply the public interest? It might therefore appear that any d e f i n i -t i o n of the public i n t e r e s t might have to be made i n terms of goals or s o c i a l values and i n terms of implementation of these same goals or s o c i a l values. - X o -D. Finding A Common Thread Despite the d i f f i c u l t i e s encountered i n constructing a single d e f i n i t i o n of the public i n t e r e s t a b r i e f survey of past schol a r l y d e f i n i t i o n s could s t i l l reveal some common ground. Schubert and Niemeyer both concentrated on the differences between uses, and meanings of the public i n t e r e s t . A b r i e f sur-vey of present opinion of the meaning of the public i n t e r e s t could s t i l l reveal a common thread as to what constitutes the public i n t e r e s t . Wayne A.R. Leys (36)- considered the public i n t e r e s t a set of c r i t e r i a f o r putting a value judgement upon public p o l i c y . He f e e l s that public p o l i c y should: " 1 ) maximize in t e r e s t s a t i s f a c t i o n ( u t i l i t y ) 2) be determined by due process 3) be motivated by a desire to avoid destructive s o c i a l c o n f l i c t " ( 3 7 ) Leys admits that seldom w i l l : ' i t be possible to f i n d a l t e r n a t i v e s which w i l l s a t i s f y a l l three of these conditions. John D. Montgomery(33) finds the term i t s e l f impossible to define accurately, yet as a concept, the public i n t e r e s t i s of overwhelming importance. Montgomery f e e l s that the public i n t e r e s t o f f e r s , to the Western mind at lea s t the ultimate e t h i c a l j u s t i f i c a t i o n for demanding the s a c r i f i c e s which the i n d i v i d u a l may be ca l l e d upon to make i n the interests of the state, and i t prescribes certain of the ultimate goals of or-ganized society. " ( 3 9 ) -19-Edgar Bodenheimer has suggested that the public i n t e -rest represents something quite d i s t i n c t from i n d i v i d u a l s e l f i n t e r e s t . "The public i n t e r e s t approach looks primarily to the s o c i a l constituent i n man . . . aware of the fact that he does not l i v e alone i n t h i s world but must adapt his behavior to the i n t e r e s t s of others and the good of the whole." In t h i s connection Walter Lipman defined the public i n t e r e s t as being "what men i n the end would choose i f they saw c l e a r l y , thought r a t i o n a l l y , acted d i s i n t e r e s t e d l y and benevolently."^-^ Both these d e f i n i t i o n s appeal to manTs s o c i a l i n s t i n c t s . J.R. Pennock f e e l s that the use of the public i n t e r e s t i n l e g i s l a t i o n i s necessary. He f e e l s that a d e f i n i t i o n of the public i n t e r e s t i s e s s e n t i a l l y a s i t u a t i o n a l concern and w i l l vary from time to time and from place to place. He f e e l s that the role of the l e g i s l a t u r e can often be quite e f f e c t i v e by simply delegating i t s authority to an administrative agency to administer i n accordance with the public i n t e r e s t . In doing t h i s , Pennock claims that the l e g i s l a t u r e " i s providing the means for applying a dynamic and increasingly precise p o l i c y based on experience (and) continuing contact with s p e c i a l i n t e -r e s t s " ( 4 2 ) a n € j s p e c i a l s o c i a l and economic conditions. J u l i u s Cohen, a lawyer, breaks up the public i n t e r e s t into two separate and d i s t i n c t f a c t o r s . The f i r s t f a c t o r i s that the public i n t e r e s t represents.;.the basic community values or goals. The second fac t o r i s an instrumental one "a p o l i c y would be i n the public i n t e r e s t i f i t s consequences would imple-ment one or more of the established basic values of the commu-n i t y . " ^ ) -20-David B r a y b r o o k ^ ) speaks of the public i n t e r e s t i n terms of s o c i a l goals and public p o l i c i e s . He finds that i t i s d i f f i c u l t i f not impossible to deal with a l l problems with the same concept of the public i n t e r e s t . He deals with more or l e s s "obvious" examples and finds that the public i n t e r e s t r e a l l y d i f f e r s from s i t u a t i o n to s i t u a t i o n . His conclusion i s that de-f i n i t i o n s of the public i n t e r e s t are l a r g e l y s i t u a t i o n a l ones not necessarily applicable i n any two, however si m i l a r , sets of circumstances. The use of the public i n t e r e s t concept appeals to Gerhard Colm^^) p r i n c i p a l l y because i t escapes precise universal d e s c r i p t i o n . He conceives the "public i n t e r e s t " concept as being the bridge between public p o l i c i e s and s o c i a l values. The public i n t e r e s t serves to j u s t i f y both the means and the ends of public p o l i c i e s . R.A. Musgrove has contributed a generally accepted d e f i -n i t i o n of the public i n t e r e s t giving the economist's point of view. "The t r a d i t i o n of economic analysis anchors i n the hedo-n i s t i c proposition whereby i n d i v i d u a l i n t e r e s t s , by courtesy of the i n v i s i b l e hand, coincide with the public i n t e r e s t . " ( ^ 6 ) Yet Musgrove points out that economists have had to reconsider the premise that the "standard of public i n t e r e s t i s provided by the r e s u l t s which would be obtained under perfect competition."(47) P a r t l y as a r e s u l t of the Depression of the 30's and the develop-ment of Keynesian economics, economists have recognized that the public i n t e r e s t must be broadened to include the non-economic implications of economic processes. Musgrove maintains, however, -21-' that t h i s l a t t e r concept of the public i n t e r e s t i s not e n t i r e l y the province of the economist and defines i t more s p e c i f i c a l l y as " e f f i c i e n c y i n the creation and maintenance of material wel-fare. "(A-8) Stephen Bailey views the public i n t e r e s t concept as l a r -gely s i t u a t i o n a l i n nature. He points out that determining the course or p o l i c i e s dictated by public i n t e r e s t usually means re c o n c i l i n g several competing or c o n f l i c t i n g goals. He points out that the phrase "the public i n t e r e s t " i s the decision maker's anchor r a t i o n a l i z a t i o n f o r p o l i c y caused p a i n . " ( ^ ) He adds however, that to have t h i s phrase serve i t s purpose over the long run, "public servants must be able to give i t a r a t i o n -a l content anchored i n widely shared value assumptions."(49) Harold Laswell proposes that public i n t e r e s t consists of-two elements 1) content, 2) procedure. He describes a series of broad goals which human beings have i n common. His d e f i n i -t i o n of the public i n t e r e s t i s best summed up i n his own words: "the s p e c i f r c a t i o n of goals i n reference to the s o c i a l and h i s t o -r i c a l process with a view to the possible improvement of s t r a t e -gies appropriate to t h e i r f u l f i l l m e n t . " ( 5 0 ) E. Summary Whether or not one f e e l s that the public interest con-cept has any v a l i d i t y , one must c e r t a i n l y admit i t s existence. I t exists i n a n t i - t r u s t l e g i s l a t i o n , i n consumer protection l e -g i s l a t i o n and labour l e g i s l a t i o n . Scholars such as Schubert and Sorauf may be quite j u s t i f i e d i n suggesting that the term be - 2 2 -s t r i c k e n from the English language. Nevertheless, notwithstand-ing t h e i r opinions, the phrase "the public i n t e r e s t " has been used by l e g i s l a t u r e s and the j u d i c i a r y . In a l l l i k e l i h o o d i t w i l l continue to be used. There seems to be l i t t l e doubt that i t does serve as a favorable descriptive to tag onto cert a i n kinds of public p o l i c i e s . In any case, i t w i l l do l i t t l e good simply to ignore i t . A search of the l i t e r a t u r e on the public i n t e r e s t has revealed three simple facts r e l a t i n g to the use of the public i n t e r e s t concept. 1. There i s no u n i v e r s a l l y applicable d e f i n i t i o n of what constitutes the public i n t e r e s t . 2. The public i n t e r e s t i s usually used to describe public p o l i c i e s . 3. I t represents a) the p r i o r i t i e s which have been assigned to one or more s o c i a l goals or values b) the manner i n which these goals w i l l be attained. The element of the public i n t e r e s t which has caused so much f r u s t r a t i o n and bewilderment to scholars i s that the goals of "the public i n t e r e s t " p o l i c i e s are forever changing. Changes i n s o c i a l goals occur as a r e s u l t of changing s o c i a l environment. As the s o c i a l environment changes then changes occur i n the p r i o -r i t i e s f o r s o c i a l goals or even the s o c i a l or common values them-selves. Thus the changes i n environment are r e f l e c t e d i n changes i n public p o l i c y . - 2 3 -The r e l a t i o n s h i p between the public i n t e r e s t and s o c i a l values and public p o l i c y i s not a s t a t i c one and t h i s i s the reason i t has thus f a r escaped rigorous d e f i n i t i o n . Any attempt to hold one of these three variables constant only r e s u l t s i n d i s t o r t i o n of the r e s t of the system. One of the analyses which can be done however i s to examine certa i n public p o l i c i e s and to examine the intentions of the l e g i s l a t u r e s who proposed these p o l i c i e s and further to examine how the public p o l i c i e s were applied. Using t h i s kind of inductive analysis i t i s possible to a r r i v e at a more general de-f i n i t i o n of the public i n t e r e s t . Normally, however, t h i s w i l l only be possible f o r a r e l a t i v e l y narrow sphere of a c t i v i t i e s (such as Labour P o l i c y f o r instance). This kind of analysis would concentrate on the l e g i s l a t u r e ' s and the j u d i c i a r y ' s per-ceptions of what s o c i a l goals were important i n chosen case examples. Careful attention would also have to be paid to the nature of the body chosen to administer the public i n t e r e s t . - 2 4 -CHAPTER III THE TRADITIONAL ROLE OF GOVERNMENT A. General Before an examination i s made of the "new thinking" with respect to government influence on the c o l l e c t i v e bargaining pro-cess, i t i s necessary to examine the t r a d i t i o n a l role of govern-ment i n Canada. The word t r a d i t i o n a l i s used here to describe e x i s t i n g l e g i s l a t i o n p r i o r to 1 9 6 5 . There i s nothing t e r r i b l y " t r a d i t i o n a l " about labour l e g i s l a t i o n since most s i g n i f i c a n t pieces of labour l e g i s l a t i o n have only come into being since the turn of t h i s century. The government's a c t i v i t i e s i n the f i e l d of c o l l e c t i v e bargaining through the mediation and i n v e s t i g a t i o n mechanisms provided fo r i n the e x i s t i n g body of l e g i s l a t i o n has sometimes been referred to as intervention. Yet an examination of the l e g i s l a t i o n and i t s intent does not reveal any actual "interven-t i o n " into the c o l l e c t i v e bargaining process. On the contrary, the early l e g i s l a t i o n seemed to have as i t s p r i n c i p a l purpose the prevention of destructive s o c i a l c o n f l i c t (or what was then re-garded as such) through the f a c i l i t a t i o n of C o l l e c t i v e Bargaining. An examination of Canadian labour l e g i s l a t i v e h i s t o r y w i l l show that the intent of the l e g i s l a t i o n was not one of i n t e r -vention as such. In f a c t even since the turn of the century the l e g i s l a t i o n not only of Canada but also cf the U.S.A. and Great B r i t a i n seems to have as i t s axioms the assumptions that strong - 2 5 -trade unions and e f f e c t i v e c o l l e c t i v e bargaining are desirable elements of a healthy i n d u s t r i a l society. B. The Federal C o n c i l i a t i o n Act 1900 Although l e g i s l a t i o n pertinent to labour r e l a t i o n s had been passed before t h i s time, the Federal C o n c i l i a t i o n Act was the f i r s t sign that the Federal government was interested i n the c o l l e c t i v e bargaining process.-1- Under various criminal code amendments the Canadian Parliament had by t h i s time already provided conditions allowing trade unions to pursue lawful aims without fear of the criminal law. P r i o r to 18*92, unions whether, registered or unregistered, could be harrassed through the c r i -minal code whenever any picketing a c t i v i t y was taking place. Unions had even been subject to r e s t r a i n t of trade regulations under our a n t i combines l e g i s l a t i o n . The new l e g i s l a t i o n was the f i r s t provision made f o r the settlement of i n d u s t r i a l disputes. It appears to have been modelled a f t e r the B r i t i s h C o n c i l i a t i o n Act of 1 8 9 6 . The act provided f o r c o n c i l i a t i o n and a r b i t r a t i o n but contained no compulsory provisions. In addition to the c o n c i l i a t i o n and ar-b i t r a t i o n provisions i t provided f o r the creation of a depart-ment of labour. The minister of labour was empowered to gather and publish facts and s t a t i s t i c s pertaining to labour. The minister was instructed "to take such steps as seems to him expedient" i n order to help the parties to a dispute to s e t t l e t h e i r disagreement. To t h i s end, he could appoint a c o n c i l i a t o r or c o n c i l i a t i o n board at the request of either party or an a r b i -t r a t o r at the request of both p a r t i e s . - 2 6 -C. The Railway Labour Disputes Act 1903 This act added another twist to the labour r e l a t i o n s scene i n Canada. The act arose out of a dispute between the CPR and i t s employees over the company's r e f u s a l to deal with the union representative. The l e g i s l a t i o n i t s e l f took two years to get through parliament and underwent considerable r e v i s i o n before f i n a l l y being passed. When f i n a l l y passed i t provided f o r postponements of s t r i k e s and lockouts u n t i l the "procedures" of the act had been complied with. The procedures of the act included a c o n c i l i a t i o n committee and an a r b i t r a t i o n board. The act allowed a c o n c i l i a t i o n committee to be set up on the i n i t i a -t i v e of the minister or upon the request of e i t h e r party to a dispute. I f the conciliation-procedure f a i l e d to bring about agreement, then the minister could appoint an a r b i t r a t i o n board. Although the parties to a dispute were forced to face each other during mediation, they were not forced to bargain c o l l e c t i v e l y . Neither were they compelled to accept the a r b i t r a t i o n board's awards. The act applied only to the Railroad industry,yet i t i s of s i g n i f i c a n t importance i n that i t applied to what was then regarded as somewhat of an e s s e n t i a l industry. The r a i l r o a d at t h i s time was the only l i n k binding the country together and as such was f e l t to be a v i t a l artery of commerce as well as being of no small p o l i t i c a l importance. Despite the importance of the r a i l r o a d , the act s t i l l placed a great deal of emphasis s o l e l y on the influence of public opinion. The act substituted f o r compulsory a r b i t r a t i o n "the p r i n c i p l e of compulsory i n v e s t i g a t i o n -27-and i t s recognition of the influence of our informed public opi-nion upon matters of v i t a l concern to the public i t s e l f . " 2 At t h i s stage of the l e g i s l a t i o n , ho compulsion was made upon the parties to bargain c o l l e c t i v e l y nor was there any withdrawal of the r i g h t to s t r i k e nor was there any compulsion with respect to acceptance of the a r b i t r a t i o n award despite the b e l i e f that the r a i l r o a d s were a " v i t a l " industry. D. The I n d u s t r i a l Disputes Investigation Act 1907 This federal act i s l a r g e l y of a consolidative nature incorporating features from both the Federal C o n c i l i a t i o n Act (1900) and the Railroad Disputes Investigation Act (1903). The intent of the act was directed p r i n c i p a l l y towards industries coming under fe d e r a l j u r i s d i c t i o n : mining, r a i l r o a d s , and public u t i l i t i e s . The act generally provided f o r compulsory mediation before a s t r i k e could take place. This act had an i n t e r e s t i n g side e f f e c t of almost fo r c i n g the parties to a dispute to engage i n c o l l e c t i v e bargaining. W.L. McKenzie King was the deputy minister of Labour at t h i s time and i s generally credited with the d r a f t i n g of the act. He comments on i t : "The Act by i t s very nature often led to what was tantamount to c o l l e c t i v e bargaining but i t was a de facto not a de jure process."^ Aside from wartime l e g i s l a t i o n , t h i s act remained i n force f o r some f o r t y years. The act was declared u l t r a v i r e s i n 1925 by v i r t u e of the f a c t that labour l e g i s l a t i o n under the B.N.A. Act was p r o v i n c i a l r e s p o n s i b i l i t y . Soon a f t e r 1925 a l l -28-the provinces except agricultural P.E.I, passed "enabling legis-lation" making the Federal legislation applicable within the provinces. Major changes in labour legislation were not to be seen u n t i l after the passage of the United States' Wagner Act of 1935. E. Wartime Labour Legislation The influence of the Wagner Act was f e l t in Canada through a series of executive orders. PC 7307 in 1941, for instance, prohibited the calling of a strike u n t i l the dispute had been investigated and a strike vote had been taken. The most famous of these executive orders was PC 1003 in Feb. 1944. PC 1003 had as i t s objective "the maintenance of indus-t r i a l peace and the promotion of collective bargaining satisfac-tory both to employers and employees." PC 1003 expressed the i desirability that 1) "employers and employees should freely discuss matters of mutual interest with each other" 2) "differences arising out of industrial disputes be settled by peaceful means" (no strike or lockout) 3) "both employers and employees should be free to organize for the conduct of negotiations between them and that a procedure should be established for such negotiations." The orders applied for the duration of the war and co-vered v i r t u a l l y every industry whether under federal or provin-c i a l jurisdiction. - 2 9 -More specifically the executive orders provided for the peaceful settlement of grievance disputes through compulsory arbitration. It also made collective bargaining compulsory be-fore a strike could take place. F. Industrial Relations and Disputes Investigation Act 1948 Following World War II the I. R. & D. I. Act was passed by parliament to replace PC 1003 and the I.D.I. Act. Various forms of i t appear as part of provincial labour legislation. The act has remained virtu a l l y unchanged during the past 20 years and, in fact, f a i r l y represents the state of labour legis-lation across Canada, except, of course, for the relatively recent developments in B.C. and Saskatchewan. Specifically the act provides for: 1. A guarantee that employers and employees have the right to belong to collective bargaining organiza-tions. 2. Either party to serve notice to the other to begin collective bargaining "in good faith". 3. The settlement of grievance disputes without a work stoppage - by compulsory arbitration i f necessary. 4. No strike or lockout u n t i l after the conciliation process. In addition to these points, the act created the Labour Relations Board to administer the legislation, as well as defining such terms as employee, and trade union. Section four describes what constitutes unfair labour practices and i s designed to protect -30-the employees and t h e i r trade union from any steps which the employer might take i n an attempt to hinder or intimidate any employee i n the exercise of his " r i g h t s " . Our own B.C. Labour Relations Act contains very much the same provisions even though the I n d u s t r i a l C o n c i l i a t i o n and A r b i t r a t i o n Act from which i t i s derived preceded the federal l e g i s l a t i o n by over ten years. Compulsory c o n c i l i a t i o n was made part of the act i n 1943 through an amendment of the In d u s t r i a l C o n c i l i a t i o n and A r b i t r a t i o n Act. After World War I I the whole act was revised and to i t was added the concept of a regulatory agency - the Labour Relations Board - to administer the new l e g i s l a t i o n : The Labour Relations Act. G. Conclusions Thus nowhere i n any government l e g i s l a t i o n has there been any evidence of government intention to " i n t e r f e r e " i n the c o l l e c t i v e bargaining process (excepting of course the wartime experience). On the contrary most of the early l e g i s l a t i o n i n Canada was intended to promote the growth of Trade Unions and the use of Co l l e c t i v e Bargaining. Unions were f i r s t of a l l exempted from our anti-combines laws. Secondly, picketing as a re s u l t of an i n d u s t r i a l dispute was made l e g a l where previously such a c t i v i t i e s would have come under the "watching and besetting" sections of the criminal code. Two basic concepts which dominate labour l e g i s l a t i o n today are l ) the r i g h t to contract, 2) the r i g h t to property. In fact nearly a l l of the provisions of labour l e g i s l a t i o n can be r a t i o n a l i z e d i n terms of these concepts. The B.C. Labour Rela'--31-tions Act, f o r example, expresses the view that every employee has the r i g h t to organize f o r the purpose of c o l l e c t i v e bargain-ing. This i s nothing more than a restatement of a basic human right under B r i t i s h c i v i l law - the r i g h t to contract or not to contract and the r i g h t to delegate to someone else one's ri g h t to contract i . e . to enter into a principal-agent r e l a t i o n s h i p . The employer too has the r i g h t to p a r t i c i p a t e i n an "employer's organization." I t could be said that Section 16 of the B.C. Labour Relations Act, f o r example, i n t e r f e r e s with the employer's r i g h t not to contract. This i s i n fact not the case, the section does not compel the employer to contract, but merely to bargain with his employees or t h e i r representative. There i s a long h i s t o r y of employers refusing to bargain with, or even to recognize, the representative of his employees. This section merely forces the employer to deal with his employees c o l l e c t i v e l y just as he would normally have to deal with each one i n d i v i d u a l l y . The act also provides f o r enforcement of the c o l l e c t i v e agreement as a l e g a l contract. Section 22 of the B.C.L.R. Act expresses the opinion that there should be no stoppage of work during the l i f e of the agreement. Grievances a r i s i n g out of the i n t e r p r e t a t i o n of a current contract must be s e t t l e d by bar-gaining or by a r b i t r a t i o n . The parties have complete freedom to s e t t l e any grievances by any means they should choose except a  work stoppage. By f a r the:, most contentious issue i n the present labour l e g i s l a t i o n i s the concept that there should be no s t r i k e u n t i l the parties have submitted to compulsory c o n c i l i a t i o n . This - 3 2 -provision r a i s e s the question as to whether the government i s a c t u a l l y i n t e r f e r i n g i n the c o l l e c t i v e bargaining process i t s e l f . I f one i s to accept the idea that a great deal of the e f f e c t i v e c o l l e c t i v e bargaining i s c a r r i e d out i n an "eleventh hour" c r i s i s atmosphere ( i . e . just p r i o r to a s t r i k e deadline), then there can be l i t t l e doubt that compulsory c o n c i l i a t i o n has some ef f e c t on the bargaining process. The p r i n c i p a l e f f e c t , however, i s directed at the timing of the process. There i s no question of government withdrawal of the r i g h t to s t r i k e or the r i g h t to lockout. Compulsory c o n c i l i a t i o n , therefore, does not constitu-te "intervention" i n the c o l l e c t i v e bargaining process. Before there could be "intervention" i n the c o l l e c t i v e bargaining process there would have to be a t h i r d point of view presented during the actual c o n c i l i a t i o n process. In actual f a c t there i s no room f o r the government or anyone else to pre-sent a t h i r d point of view under the established c o n c i l i a t i o n process. Both the federal and p r o v i n c i a l l e g i s l a t i o n s are very s p e c i f i c i n t h e i r wording on t h i s issue. The federal act out-l i n e s the function of a c o n c i l i a t i o n board to "endeavour to bring about agreement between the parties i n r e l a t i o n to the matters referred to i t " ( S 3 2 ( l ) ) . The B.C. Labour Relations Act contains i d e n t i c a l wording regarding the function of a C o n c i l i a -t i o n Board. Nowhere i s there any mention that the c o n c i l i a t i o n process should Concern i t s e l f with the q u a l i t y of an agreement. The i n s t r u c t i o n s are very clear: the purpose of c o n c i l i a t i o n i s to help the parties to s e t t l e t h e i r dispute; the terms of the settlement are of no concern to the c o n c i l i a t i o n board. -33-CHAPTER IV THE TAFT-HARTLEY ACT: EMERGENCY PROVISIONS A. Introduction It i s not the purpose of t h i s chapter to enter into lengthy discussions of the Taft-Hartley Act (properly c a l l e d the Labour Management Relations Act). There has already been a great deal of discussion and controversy regarding such questions as i t s c o n s t i t u t i o n a l i t y , i t s merits and e s p e c i a l l y i t s i n t e r p r e t a -t i o n . There has been enough discussion i n f a c t to f i l l a great many volumes. It i s the purpose of t h i s chapter to describe some of the applications of the Taft-Hartley Act's emergency provisions as case studies i n order to demonstrate the inter-relatedness of s o c i a l economic and p o l i t i c a l factors relevant to the applica-t i o n of the Act. There are few arguments that provisions should not e x i s t to deal with certain kinds of unusual labour disputes, yet there has been vigorous controversy regarding the s p e c i f i c a p p l i c a t i o n of the Taft-Hartley emergency provisions. The word-ing of the Act allows f o r administrative f l e x i b i l i t y ; hence, the Act has been applied i n a v a r i e t y of "emergency" circumstances, including some where the question of emergency could be s e r i o u s l y challenged. The emphasis of t h i s chapter w i l l be placed on bringing out those elements of the United States federal govern-ment domestic and foreign p o l i c y which were d i r e c t l y or i n d i r e c t -l y promoted through the a p p l i c a t i o n of the emergency provisions of the Taft-Hartley Act. - 3 4 -I t w i l l be necessary to b r i e f l y describe those sections of the Taft-Hartley Act which w i l l be pertinent to the subse-quent discussion. The discussion w i l l center upon those sections which have been used to deal with disputes generally c l a s s i f i e d as National Emergency disputes. Section 206 of the Taft-Hartley Act permits the President to appoint a board of inquiry to inquire into a labour dispute and make a report to him thereon. The dispute must a f f e c t "an entire industry or a substantial part thereof" which i s engaged i n i n t e r s t a t e or i n t e r n a t i o n a l commerce. The President must further be of the opinion that a s t r i k e i n such industry "would, i f permitted to occur or to continue, imperil the national health and safety." The report i s not to contain any recommend-ations and i s to be made available to the pu b l i c . Section 208 provides that: upon rec e i v i n g the board's report, a D i s t r i c t Court may be petitioned to enjoin the s t r i k e . The courts are empowered to enjoin such s t r i k e s or lockouts i f they f i n d that such s t r i k e s would indeed (i) a f f e c t an entire industry or substantial part thereof, engaged i n commerce... ( i i ) i f permitted to occur or to continue w i l l imperil the national health and safety. From 1947 to 1 9 6 5 , the act has been used 24 times by a t o t a l of four P r e s i d e n t i a l administrations i n a li m i t e d number of industries but under a great v a r i e t y of s o c i a l , economic and p o l i t i c a l conditions. I t i s the inten t i o n of t h i s chapter to determine whether the Act was given a consistent d e f i n i t i o n i n - 3 5 -i t s a p p l i c a t i o n . It i s hoped that such questions w i l l be answered as: "Is the national health and safety synonymous with b i o l o g i c a l health and national defense?" "Is there .an element of economic health i n the a p p l i c a t i o n of national health?" "Does national safety also imply an element of public order?" In other words: i s there a single d e f i n i t i o n of the public i n t e -rest or of the national health and safety? I t has already been shown i n Chapter II that the scholars have f a i r l y unanimously f a i l e d to describe the public i n t e r e s t i n precise quasi mechanical terms. This chapter w i l l attempt to determine whether or not there i s at least an operational d e f i -n i t i o n of the public i n t e r e s t or the national health and welfare. The bulk of the information presented i n t h i s chapter has been gathered from the New York Times. Despite the c r i t i c i s m s which can be leveled at newspaper reporting the New York Times was the most objective form of indexed f i r s t hand information av a i l a b l e at the time and place of w r i t i n g . For the purposes of tying i n a l l the i n t e r r e l a t e d factors surrounding the decisions to invoke the Taft-Hartley emergency provisions, the analysis w i l l be sub-divided into three a r b i t r a -r i l y chosen periods of time.- These.subdivisions roughly corres-pond to three P r e s i d e n t i a l administrations and hence i t follows that they can be l a b e l l e d as the Truman period, the Eisenhower period and the Kennedy-Johnson period. Each administration was faced with i t s own p a r t i c u l a r problems; some involving interna-t i o n a l p o l i t i c s ; some involving domestic problems; while some are simply problems of public order. -36-It must be remembered here, by the reader, that the pro-blems faced by the United States especially on the international p o l i t i c a l front, are of a far greater magnitude than those which we in Canada face, under normal circumstances. For quite some time since World War II, for example, the United States has adopted the role of major guardian of the Western social system. Consequently, there i s a very strong interrelationship not only between domestic affairs in the U.S.A. and i t s foreign policies, but also between domestic affairs in the U.S.A. and the global p o l i t i c a l situation. B. The Truman Period: 1947-1952 President Truman during whose administration the Act was f i n a l l y brought into force used the emergency provisions of the Taft-Hartley Act a total of 1G times during his administration. In fact i t was used a total of seven times in 1948 alone, in a variety of situations. 1) Meat packers strike 1948 On March 15, 1948, President Truman ordered a board of inquiry to look into a meat packers dispute between the United Packinghouse Workers C.I.O. and five major meat packing compa-nies.! The actual strike involved 83,000 workers and was directed against the five biggest meat packing companies in the United States. The dispute was f i n a l l y settled at four of these plants about 10 weeks after the beginning of the strike with the union's acceptance of the company offer. The report of the Inquiry Board found that the company's" offer was f a i r . Both companies and labour submitted their -37-dispute to the Federal Mediation Service, thereby avoiding a Taft-Hartley injunction. The background to t h i s s t r i k e o f f e r s a great deal more insi g h t into why the dispute was of such s i g n i f i c a n c e . 194-8 was the year of the Russian takeover i n Czechoslovakia as well as being a year when B e r l i n was s t i l l considered threatened by Communist powers. It was suggested i n e d i t o r i a l s that t h i s was no time to have such a s t r i k e " j u s t as the rest of the nation was r a l l y i n g to face a f a t e f u l c r i s i s i n Europe." Thus suggesting that the external threats upon the security of the western world demanded a stable domestic s i t u a t i o n . When the s t r i k e ended, i t was discovered that union s t r i k e funds were depleted, and that there had never been a se-rious meat shortage i n the United States. Possibly a c r u c i a l factor i n the c a l l i n g of the s t r i k e was the r i v a l r y between two unions employed i n the meat packing industry. At the time that the C.I.O. was going on s t r i k e to back up t h e i r demands, the A.F.L. unions decided to remain at work and not to honour the C.I.O. picket l i n e s . The unrest was not r e s t r i c t e d to r i v a l r y between the two unions, the s t r i k e was characterized by public disorder and violence including the k i l l i n g of a picketer, r e s u l t i n g i n the National Guard being c a l l e d out i n Minnesota and Iowa to restore order. Another ex-ample that public order was being jeopardized was the conviction of a l o c a l of the C.I.O. f o r refusing to bargain (the f i r s t such conviction under the Taft-Hartley Act). I t appears therefore that c r u c i a l consideration i n the invoking of the Taft-Hartley emergency provisions were: - 3 8 -1) a desire to maintain stable conditions on the domestic scene i n order to better cope with the country's i n t e r n a t i o n a l problems; 2) warnings that the public order was going to be threatened - as indeed i t was. (The union no-t i f i e d the Federal Mediation Service 90 days before the s t r i k e that "there might be trouble a r i s i n g out of the packinghouse negotiations".) 2) Coal Miners' Pension Dispute 1 9 4 8 ^ This i s the well known s t r i k e i n which John L. Lewis was convicted of Contempt of Court, i n that he was found to have in s t i g a t e d coal miners to walk o f f t h e i r jobs i n defiance of a Court order. President Truman, i n attempting to maintain economic s t a b i l i t y on the home front was forced to consider the following' facts presented to him by hi s Secretary of Labour. The Secretary estimated that a 30 day s t r i k e i n the coal industry would (i) shut down or c u r t a i l 36% of the nation's power output ( i i ) cut down 56% of the nation's production of coke byproduct ( i i i ) cut down 56% of the nation's s t e e l and r o l l i n g m i l l s production (iv) a f f e c t 69% of the Class I Railroads (v) a f f e c t 36% of the cement m i l l s (vi) a f f e c t 43% of a l l other industries - 3 9 -The s t r i k e had begun on March 1 5 ; the s i t u a t i o n on A p r i l 9 had become c r i t i c a l . Four hundred thousand miners had walked o f f the job, and an estimated 1 6 4 , 0 0 0 other workers had been i d l e d , including 7 0 , 0 0 0 r a i l r o a d workers. I t was further e s t i -mated that coal-using t r a i n s would have t h e i r operations cut back by 5 0 $ , by A p r i l 1 6 . P a r t l y on the basis of these f a c t s , therefore, on A p r i l 9 , President Truman pledged the f u l l force of the law to bring about an end to the s t r i k e . 3) The Telephone Dispute 191+8 O) This dispute i s very d i f f i c u l t to i n t e r p r e t i n terms of p r e s i d e n t i a l intent i n appointing a Board of Inquiry. Negotia-tions between company and employees had not broken down at the time, and, i n f a c t , the Board of Inquiry agreed to postpone i t s hearings to allow negotiations to proceed unimpeded. As a r e -s u l t of t h i s a ction by the Board of Inquiry, the inquiry never took place, and the company and union concluded a contract by themselves. The dispute involved only the long distance operators or le s s than 5% of the t o t a l communication industry work force. Neither company nor union seemed to understand how t h e i r dispute could create a national emergency a f f e c t i n g the '.'national health and welfare." One can only speculate that the dispute could have affected the e f f i c i e n c y of the government of the United States at a time when i t depended upon a l l of i t s resources. - 4 0 -C. The Eisenhower Era 1952-1959 1) Atomic Energy Disputes 1954^ Generally speaking, these kinds of disputes are much more easily connected with national emergencies and national defense than most others. The employees involved were actually employed by private contractors working directly for the Atomic Energy Commission (a government agency). It was the government's contention that these employees did not possess the right to strike as they were working for private contractors who were in i effect government agents. The two plants involved at Oakville and Peducah were producing the fissionable material used in making Atomic and Hydrogen Bombs (Uranium-235)• At the time of this dispute the Cold War was s t i l l in high gear, and the United States was attempting to maintain i t s Atomic arms lead over Russia. Clearly, therefore, the opera-tions of the Atomic Energy Commission were of direct concern to the President in that they affected the defense programs of the U.S.A. It was claimed by the Atomic Energy Commission, that a work stoppage by the employees involved in the dispute, would cause irreparable damage to equipment and processes. In retro-spect, however, i t was pointed out that such a strike would have cut down auxiliary operations of the plant but would not have affected the continuous process of making U-235 which was the process of direct concern to the defense of the United States. - 4 2 -2) Basic Steel Industry Strike 1 9 5 9 ( 5 ) This particular strike is worth devoting some attention to in this paper, primarily because there i s a large amount of data available on i t . A great deal of emphasis was placed by the government upon the defense effects of a strike in this i n -dustry, yet President Eisenhower was nevertheless very reluctant to use the emergency provisions of the Taft-Hartley Act. Some background information to this dispute i s essential at this point. It must be pointed out that the year prior to this dis-pute was 1958 and was generally recognized to have been a year of economic recession. One of the concerns of the nation as re-flected in the editorials of the New York Times, appeared to be inf l a t i o n . One of these editorials explained the attitude of President Eisenhower as believing that "in the steel industry, both prices and wages are administered i.e. subject to change (normally increase) without any relationship to either supply or demand." A -March 15 editorial suggested that the outcome of the negotiations "... w i l l determine the national level of wages and prices. The course of the Cold War may be shaped by the a b i l i t y of the negotiators to evolve a pattern that w i l l strengthen the competitive position of the West in the production duel, which Krushchev had proclaimed as the decisive battleground between East and West." The perceived importance of these negotiations is thus well established, and i t i s therefore not surprising that the President f e l t obligated to remind the parties of the public interest in this dispute. - 4 2 -The intervention of President Eisenhower i n t h i s dispute was not clear cut and d i r e c t at f i r s t however. During the ne-gotiations, the President made personal pleas to both parties to continue t h e i r negotiations, and impressed upon them the pu-b l i c i n t e r e s t i n "price and wage s t a b i l i t y . " F i n a l l y on June 2 7 , negotiations had reached a deadlock. On t h i s same day the union leaders requested the President to e s t a b l i s h a f a c t - f i n d i n g board, but the President refused, giving as reasons that "...by passing the Taft-Hartley Act, Congress, s p e c i f i c a l l y l i -mited the use of such p r e s i d e n t i a l Boards of Inquiry to national emergencies..." On July 1 5 , 18 days a f t e r the union plea, the threatened s t r i k e f i n a l l y began. On October 9 , the President f i n a l l y f e l t j u s t i f i e d i n invoking the emergency provisions of the Taft-Hartley Act. Pre-sumably an 84 day s t e e l s t r i k e now imperiled the "national health and safety." The Board of Inquiry reported ten days l a t e r on October 1 9 , that: "There i s a growing national i n t e r e s t i n ways of achieving both price s t a b i l i t y and economic growth; the public i n t e r e s t has put an unusual s t r a i n on c o l l e c t i v e bar-gaining, the values of which the nation,nevertheless also seeks to preserve." This suggested that perhaps i n t h i s case, c o l l e c -t i v e bargaining by i t s e l f was not capable of coping with the "public i n t e r e s t " . On October 2 0 , the day a f t e r the Inquiry Board's report, the Attorney General applied to enjoin the s t r i k e r s . Most of the evidence presented i n court i s d i r e c t l y r e l a t e d to the de-fense programs of the nation, yet an impressive amount of the -43-evidence i s purely economic i n nature. The following i s a summary of the evidence presented: (i) The Board of Inquiry concluded that i t could see no prospect at a l l f o r an early settlement of the s t r i k e ; ( i i ) S t r i k e has resulted i n the depletion of s t e e l inventories to 2/5 of t h e i r o r i g i n a l l e v e l ; ( i i i ) There are 765,000 employees i d l e d as a r e s u l t of the s t r i k e , supporting an ad d i t i o n a l 2,000,000 persons; (iv) The planned program of space a c t i v i t i e s under N.A.S.A. (project Mercury - which had at t h i s time the highest national p r i o r i t y ) i s being de-layed; (v) Also delayed i s the production of s t e e l components needed i n the construction of m i l i t a r y missiles and weapons systems, e s s e n t i a l to the national defense plans of the United States; (vi) The nuclear submarine and naval shipbuilding programs are being delayed which could i r r e p a -rably injure the national defense and imperil the national safety; ( v i i ) There has been a cutback of exported s t e e l pro-ducts, v i t a l to the support of U.S. bases over-seas ( i . e . , NATO). This s t e e l s t r i k e , i f per-mitted to continue w i l l s e r i o u s l y imperil the national safety. -44-( v i i i ) The s t r i k e has adversely affected m i l l i o n s of small businesses without the resources to stock large inventories. Thus the national health w i l l be imperilled i f permitted to continue. Thus there was no evidence presented that the b i o l o g i c a l health of the nation was ever imperilled although the Court did f i n d and accept evidence to show that the economic health of the nation was s e r i o u s l y affected by the s t r i k e or the continuation thereof. I t i s s u r p r i s i n g to f i n d an administration so reluctant to get involved i n private negotiations, i n t e r p r e t i n g the "national health or safety" to include the economic health of the nation. D. The Kennedy-Johnson period 1961-1968 Two court decisions w i l l be used here to determine the grounds on which the f e d e r a l government sought to enjoin. The f i r s t of these s t r i k e s occurred on the West Coast, involved the maritime industry, and began to immobilize the American Shipping f l e e t on March 16, 1962. The second s t r i k e was c a l l e d by the I.L.A. (International Longshoreman's Association) and affected the A t l a n t i c and Gulf coasts; the work stoppage began on October 1, 1964. The arguments used by the United States government i n i t s p e t i t i o n to the D i s t r i c t Courts to enjoin the s t r i k e r s w i l l y i e l d valuable clues as to how, i n the view of the administration, the s t r i k e i m p e r i l l e d the national health or safety. Both these s t r i -- 4 5 -kes involved a v i r t u a l shutdown of normal shipping a c t i v i t i e s . 1) Maritime Industry Dispute 1962 (West Coast) The Court found that the national defense of the U.S. was threatened by virtu e of the fact that (i ) a s t r i k e would se r i o u s l y disrupt the foreign a i d program designed to provide m i l i t a r y , economic and tec h n i c a l assistance to f r i e n d l y foreign nations under the Mutual Security Act of 1954; ( i i ) a s t r i k e would have serious adverse e f f e c t upon the nation's Food f o r Peace programs under the A g r i c u l t u r a l Trade Development and Assistance Act of 1954 designed to furnish emergency assistance to f r i e n d l y nations to meet famine and urgent r e l i e f requirements; ( i i i ) a s t r i k e would have an adverse e f f e c t upon the state of Hawaii (whose governor had already declared a state of emergency) which occupies an e s s e n t i a l p o s i t i o n i n the defense of the nation; (iv) a s t r i k e would immobilize the American merchant marine which i s required to be available as a m i l i t a r y a u x i l i a r y i n time of war or national emer-gency; (v) a s t r i k e would have "an adverse impact upon the nation's economy and thereby s e r i o u s l y impair the nation's o v e r a l l defense pos i t i o n , since the defense e f f o r t of the United States i s dependent upon the strength of the economy of the United States".($) - 4 6 -The Court also found that the national health and safety of the United States was imperilled i n view of the f a c t that a s t r i k e would have an adverse e f f e c t upon the maintenance i n the U.S.A. of an "adequate supply of petroleum products which.is e s s e n t i a l to transportation, both m i l i t a r y and c i v i l i a n , and f o r the operation of i n d u s t r i a l plants, and e l e c t r i c u t i l i t i e s and f o r heating". ( 9 ) Thus i t can be seen that the arguments presented to the Court were pri m a r i l y of an economic nature. The national de-fense of the nation was affected only insofar as the disruption i n the economy might generally weaken the a b i l i t y of the nation to quickly react to a defense c r i s i s . 2) The I.L.A.* Dispute 1 9 6 4 - 6 5 (East Coast) The Court decision regarding the government's p e t i t i o n f o r a s t r i k e injunction reveals that a substantial part of the testimony was almost purely economic i n nature. The testimony contained roughly the same subject matter as that which was pre-sented regarding the West Coast shutdown to show that the na-t i o n a l s e c u r i t y of the nation was involved. The f u l l text of the opinion of the Court i n giving the reasons f o r granting the injunction emphasizes the economic as-pects of the shutdoxvn on the East coast. (i) The testimony of the Maritime Administrator contained mostly v i t a l s t a t i s t i c s regarding the e f f e c t of an East Coast Shipping shutdown "thereby adversely a f f e c t i n g the national ^International Longshoreman's Association - 4 7 -economy, with attendant p e r i l to the national health and sa-fetyn(11) The testimony of the Acting Maritime Administrator James W. Gulick stressed that the people of Puerto Rico would be se-r i o u s l y affected by even a short s t r i k e as a r e s u l t of depletion of food stocks. The report of the board of inquiry was also entered as testimony i n the hearing and reported that "with respect to the same ports and as between the same parties, there exists a hi s t o r y i n the l a s t decade of f a i l i n g to reach agreement i n ne-(12) g o t i a t i o n s " . x ' The Board further concluded, "The r i g i d i t y of positions on many of the main issues plus the complexity of items concerned with related c r a f t s , makes the p o s s i b i l i t y of an early settlement most remote."(13) The President of the I.L.A. (A.F.L.-C.I.G.), Thomas Gleason, t e s t i f i e d that notwithstanding the s t r i k e , the I.L.O. had agreed to handle such cargoes as would be e s s e n t i a l "to our national needs f o r defense and government functions."(13) In view of the testimony presented to the Courts, by the government, i t i s clear that t h i s administration placed a great deal of emphasis upon the economic e f f e c t s to the remainder of the nation of a s t r i k e i n the maritime or, i n t h i s case, i n the longshore industry. E. Conclusions and Summary There are some obvious differences i n the way i n which each of the three administrations chose to use the Act. To Truman, i t appeared to be a way of keeping the domestic labour -43-situation under control in order to cope with national and i n -ternational problems. President Truman was faced with several problems which required a stable labour situation such as Marshal aid plan, the Berlin Crisis, the Russian takeover in Czechoslovakia (1948), as well as the return to the labour force of several million veterans. The meat packers* strike was characterized by violence and clashes with law enforcement officers and was therefore a threat to the public order. The technical argument was, however, that i f the strike went on long enough there would not be any meat to eat. The telephone strike on the other hand i s somewhat puzzling, there appeared to be no real emergency; the only effect would have been an inconveniencing and slowdown in government communications. The use of the Taft-Hartley injunction, in the case of the coal miners* pension dispute, w i l l meet with less controversy than the previous two uses. Nevertheless the strike was enjoined not merely because Americans were going to suffer physically but because the strike was affecting the economy of the nation, as well as because the strike was affecting the nation's foreign commitments. President Eisenhower's administration was characterized by a greater reluctance to use the Taft-Hartley provisions. Nevertheless when he did use i t , his reasons for using i t were very similar to those used by Truman. The strike of the atomic energy plants used as one of the examples i s reasonably straight-forward. Clearly the national defense of the United States was far too involved for the government to allow a crippling shut--49 -down of either plant at a time when the United States was stock-p i l i n g atomic bombs andvtrying to r e t a i n i t s atomic lead over the U.S.S.R. The s t e e l s t r i k e created somewhat of a c r i s i s . President Eisenhower and his administration were t r y i n g to get the economy r o l l i n g again following the 1958 recession. It was f e l t that the s t e e l negotiations were going to set the standard f o r sub-sequent wages, i n other areas of the economy. After an already lengthy s t r i k e , i t became clear that s t e e l stocks were almost depleted and that, unless the government asserted the public i n -t e r e s t , the government's economic goals were going to be serious-l y and adversely affected. Add to these reasons, the f a c t that there was s t i l l no prospect of an early settlement, and the f a c t that defense construction was beginning to " f e e l the pinch"; thus there was no way f o r the government to stay out of t h i s d i s -pute any longer. Whereas Eisenhower was reluctant to step into a labour dispute u n t i l i t was a clear cut case of emergency, the Kennedy-Johnson administration's record shows that i t would step into labour disputes i f i t was s a t i s f i e d that the p o s s i b i l i t y of an emergency developing existed. I t issued injunctions, f o r i n s -tance, i n a dispute involving the S t e l l i t e d i v i s i o n of Union Carbide. S t e l l i t e was producing an a l l o y used i n manufacturing engine parts of c e r t a i n a i r c r a f t and helicopters. A s t r i k e was never even allowed to begin, because of the "Vietnam buildup" at t h i s time. Both injunctions issued respecting the West Coast m a r i t i -me dispute and the East Coast longshoremen's dispute were issued -50-not so much because of the possible s u f f e r i n g of the American people but because of these s t r i k e ' s widespread e f f e c t s upon the economy generally and the widespread e f f e c t s upon American commitments abroad, both economic and m i l i t a r y . The reader w i l l r e c a l l that t h i s chapter would attempt to answer some questions; here are some of the answers: 1. Are the terms "national health and safety" synonymous  with b i o l o g i c a l health and national defense? It has c l e a r l y been shown that the U.S. administrations have a l l agreed thatr. when the defense of the nation i s affected, the Taft-Hartley provisions should be applied. In nearly every s i t u a t i o n where injunctive r e l i e f was sought, testimony was presented to show that the de-fense of the nation could or was being affected. No conclusions can be reached as to whether or not the term national health and welfare includes the b i o l o g i c a l health of the people. The only case where t h i s aspect could have been tested i s i n the case of the meatpackers' dispute. There was never any r e a l case to prove that there was even a serious meat shortage. 2. Is there an element of economic health included i n the  a p p l i c a t i o n of the "national health" c r i t e r i o n ? There has existed i n many "emergency disputes" substantial and adverse implications to the economic health of the U.S.A. The economic implications were present i n conjunction with equally serious m i l i t a r y i m p l i -cations and i t would be d i f f i c u l t to determine which of these two considerations the Courts f e l t were more important. It would be important to consider the economic and defense aspects of a d i s -pute separately were i t not f o r the f a c t that, i n more than one dispute, the government argued that a healthy economy was -51-e s s e n t i a l to the e f f e c t i v e defense of the United States and i t s overseas i n t e r e s t s . Thus i t i s safe to conclude that the econo-mic s t a b i l i t y of the U.S. i s covered by the general term "natio-nal health and safety", at l e a s t as i t has been interpreted by fed e r a l administrations. 3. Is there a single d e f i n i t i o n of the "national health and safety? The answer to t h i s question i s of course: no there i s not! Sometimes, by careful scrutiny, i t w i l l be possible to i s o l a t e one f a c t o r as being of greater concern than the other factors contributing to an administration's decision to invoke the emergency provisions of the Taft-Hartley Act. Generally speaking, however, one i s faced with a web of interwoven relation-ships including m i l i t a r y and defense considerations, domestic, and i n t e r n a t i o n a l implications and economic and p o l i t i c a l factors, and combinations thereof. - 5 2 -CHAPTER V THE SPECIAL CASES OF THE PUBLIC EMPLOYEES V . . . . A. Introduction I t i s the intent of t h i s chapter to examine the Canadian i and United States systems of c o l l e c t i v e bargaining with federal public servants. This chapter w i l l d i f f e r somewhat i n emphasis from other chapters. Whereas other chapters were dealing prima-r i l y with labour management r e l a t i o n s i n the private sector, t h i s chapter w i l l examine the attempts at e s t a b l i s h i n g c o l l e c t i v e bar-gaining i n the federal public service. In the private sector, i t i s possible to speak of government influence or a t h i r d party point, of view i n the c o l l e c t i v e bargaining process, i t becomes meaningless to do t h i s type of analysis when the government i t -s e l f i s the employer. An examination can be made however, of the kind of concessions which the government has made i n terms of l e t t i n g public employees determine t h e i r own working conditions. The analysis w i l l examine two aspects of c o l l e c t i v e bar-gaining i n the public service. The f i r s t aspect i s the constraint which has been placed upon the employee groups with respect to the actual substance of bargaining. Both the U.S. and Canadian systems of f e d e r a l c i v i l service systems of bargaining have fenced o f f areas which are not to become the subject of c o l l e c t i v e bar-gaining. The second aspect of public service c o l l e c t i v e bargain-ing c r u c i a l to an understanding of the system i s the power balance between the management and employee groups. Since the functioning of c o l l e c t i v e bargaining i s often strongly influenced by the a b i --53-l i t y of one party to impose a cost of disagreement upon the other, the power p o s i t i o n of both management and employee groups i s of s i g n i f i c a n t importance. There can be l i t t l e doubt "that bargaining i n the public sector w i l l present the government with some rather unique pro-blems; unique i n that these problems w i l l be more pronounced than they would be i n normal c o l l e c t i v e bargaining s i t u a t i o n s i n the private sector. The p r i n c i p a l source of these differences i s inherent i n the s p e c i a l status of the state as an employer. The state i s often looked upon as an a r b i t e r of labour management r e l a t i o n s , not necessarily i n the sense that i t w i l l dictate "reasonable" terms and conditions of employment, but i n the sense that i t attempts to create conditions leading to the successful conclusion of negotiations between disputants. This function i t must perform i n the case of public employees. In addition to t h i s , however, the state must s i t across the "table" from i t s employees' representatives, and bargain with them on behalf of the public. Although i t i s sometimes suggested that one of the differences between private and public employment i s that private employees are p r o f i t seeking, i t would be inaccurate to suggest that governments are free from the f i n a n c i a l squeeze created by r i s i n g costs. I t could be suggested i n f a c t that the government too i s under pressure to produce more ( i n t h i s case more services) at a lower cost to the taxpayer. Thus we see the dual role of government, on the one hand to f a c i l i t a t e agreement, on the other hand to drive as hard a bargain as possible. -54-B. The United States Federal L e g i s l a t i o n The public i n t e r e s t i n c o l l e c t i v e bargaining between f e -deral employees and the state finds o f f i c i a l expression as Execu t i v e Order 10988 dated February 1962.(!) Despite the fact that permanent associations of manual employees had existed i n the U.S. federal c i v i l service since the turn of the century, p r i o r to 1962, the government had not expressed any opinions concernin such associations although, l e g a l l y , such associations were en t i t i e d to exist and p e t i t i o n the government. (2) It was not u n t i l President Kennedy signed Executive Order 10988 that any kind of formal mechanism was established to deal with c o l l e c t i v e employee action f o r the purpose of c o l l e c t i v e bargaining. Machinery and procedures were established f o r the c e r t i f i c a t i o n of bargaining agents and the granting of o f f i c i a l recognition to the employee representatives. Although the word-ing of the order seems to shy away from the use of terms common to the labour management f i e l d i n the private sector (union-employee association, bargaining u n i t — a p p r o p r i a t e unit, labour relations—employee management cooperation), nevertheless there i s an unmistakable intent to unionize the federal public service The preamble to the Executive Order outlines the purpose of the order. I t suggests that the " p a r t i c i p a t i o n of employees i n the formulation and implementation of personnel p o l i c i e s a f f e c t i n g them contributes to e f f e c t i v e conduct of public busi-ness" and that "... the e f f i c i e n t administration of the Govern-ment . . . requires that orderly and constructive relationships be maintained between employee organizations and management -55-o f f i c i a l s ; . . . " These statements precede the actual regula-tions and statement of righ t s and r e s p o n s i b i l i t i e s of employees and managers and are presumably intended to denote the s p i r i t of the regulations. I. Bargaining Substance F i r s t of a l l , i t must be made clear that E.O.* 109^8 does not speak s p e c i f i c a l l y about bargaining i n the pure sense of the word. Bargaining as i t sometimes takes place i n private industry, bargaining i n the sense that both parties w i l l attempt to maximize gains and minimize losses, does not appear to be part of the i n -tent of E.O. 10988. The federal employer has reserved certain ri g h t s which are not to become subjects f o r bargaining. Never-theless a great many areas of labour management rel a t i o n s w i l l apparently be the subject of bargaining sessions. The f i r s t suggestion of what the employees of the fed e r a l public service are to be interested i n , i s contained i n Section 5(b). This section i n s t r u c t s the agencies to consult with i t s employees on the (i) formulation and implementation of personnel p o l i c i e s and practices; ( i i ) matters a f f e c t i n g general working conditions; but i t also adds that the agency must not consult i t s employees on matters which would not normally be part of the c o l l e c t i v e negotiations. ^Executive Order -56-A further section (S. 6(b)) adds that employee Associa-tions s h a l l be given the opportunity to be represented at d i s -cussions between management and employees concerning: (i) grievances, ( i i ) personnel p o l i c i e s and practices, ( i i i ) other matters related to general working conditions. As broad and a l l encompassing as these areas f o r bargaining appear to be, they are li m i t e d i n scope. Section seven l i s t s c e r t a i n "management prerogatives, which the c i v i l service managers have more or less reserved as t h e i r own area of decision making. They r e t a i n f o r themselves the r i g h t to h i r e , promote, transfer, demote and discharge employees within any government agency. Presumably, t h i s p r o v i -sion might have the r e s u l t of dampening discussion i n these areas during bargaining sessions. Normally, these points would provide fo r vigorous discussions during bargaining sessions i n private employment. Another area given s p e c i a l status during bargaining sessions i s the area of "determining the methods, means and per-sonnel by which operations of the government" are to be conducted. / J 3 . 7 ( l ) _ 7 This i s rather curious wording i n view of the f a c t that many private businesses have p r o f i t e d from a good number of union i n i t i a t e d changes. One explanation of the reserving of certa i n management prerogatives has been proposed by Hart. (3) j|e suggests that the government might have f e l t that closed shops simply could not be tolerated i n the Public Service. The government would c e r t a i n l y want to r e t a i n the merit system of h i r i n g p o l i c y and may have feared that l e t t i n g a union control i t s manpower supply would -57-have had detrimental e f f e c t s . Whatever the explanation, the regulations c e r t a i n l y r e s t r i c t somewhat the scope of bargaining discussions. A further r e s t r i c t i o n upon the content of any c o l l e c t i v e agreement i s contained i n Section 7(1). This section expresses the d e s i r a b i l i t y that a l l employees be governed by the p o l i c i e s of various agency regulations as well as p o l i c i e s set f o r t h i n the Federal Personnel Manual, none of which are matters subject to c o l l e c t i v e negotiations. I I . Power Structure No examination of c o l l e c t i v e bargaining can be complete without a description of the r e l a t i v e power p o s i t i o n of the two p a r t i e s . This examination w i l l be r e s t r i c t e d to describing those parts of the executive order which d i r e c t l y a f f e c t s the p a r t i e s ' bargaining p o s i t i o n . It w i l l be most useful i f one can extract from t h i s Executive Order, the q u a l i t y of the government's attitude towards the employee organization and c o l l e c t i v e bar-gaining. The regulations of the executive order contain a number of r e s t r i c t i o n s upon the employee organizations. The f i r s t r e s t r i c t i o n , and perhaps the most c r i t i c a l one, i s contained i n Section 2 . The order s p e c i f i e s any employee or-ganization w i l l not receive recognition i f i t ". . . asserts the r i g h t to s t r i k e against the Government of the United States or any agency thereof, or to a s s i s t or p a r t i c i p a t e i n any such s t r i k e . . . " It remains to be seen whether t h i s no s t r i k e order can or w i l l be enforced. In any case i t cannot but influence -58-the bargaining p o s i t i o n of the employee organization, i n view of the f a c t that i t has removed the threat of s t r i k e . Another r e s t r i c t i o n i s one which r e s t r i c t s the type of association which w i l l receive recognition by the government. Excluded are organizations " . . . which advocate the overthrow of the c o n s t i t u t i o n a l form of government i n the United States. "(S . 2 ) Presumably t h i s would thereby exclude cer t a i n types of. p o l i t i c a l l y i n c l i n e d organizations - such as f a r l e f t and f a r r i g h t wing organizations. Also excluded are organizations which discriminate on the basis of race, color, creed or national o r i -gin. Section three describes another kind of "objectionable" employee organization as one whoseUeader i s ". . . subject to corrupt influences or influences opposed to basic democratic p r i n c i p l e s . " These r e s t r i c t i o n s upon the type of association which w i l l be accepted as representing the employees are e s p e c i a l l y s i g n i f i -cant i n view of the f a c t that i t i s the agency i n question which must determine which unit w i l l be appropriate f o r c o l l e c t i v e bar-gaining. Section eleven as well as Section f i v e of E.O. 10988 make i t quite clear that whenever an employee organization applies f o r o f f i c i a l recognition on behalf of a l l or part of the employees of a government agency i t i s the agency i t s e l f which must deter-mine whether the organization i s q u a l i f i e d to represent the bar-gaining u n i t i n question. Although not d i r e c t l y a f f e c t i n g the c o l l e c t i v e bargaining process but c e r t a i n l y a s i g n i f i c a n t i n d i c a t o r of the government's attitude towards' the unions i s Section 8 dealing with grievance -59-procedures. "Procedures f o r the consideration of grievances . . . s h a l l conform to standards issued by the C i v i l Service Commission." _3".8(a)(l_7 This indicates i n fac t that the fede-r a l government has retained some degree of control over g r i e -vance procedures. This same section goes on to say that c o l l e c -t i v e agreements may include provisions f o r the a r b i t r a t i o n of grievances but that "Such a r b i t r a t i o n . . . s h a l l be advisory i n nature, with any decisions or recommendations subject to the approval of the agency head." _S.8(b_7 Another i n t e r e s t i n g provision i s contained i n Section 13; although i t does not deal d i r e c t l y with c o l l e c t i v e bargaining, i t c e r t a i n l y w i l l a f f e c t the pos i t i o n and.behavior of the par-t i e s . Section 13 provides f o r the dra f t i n g of (1) proposed standards of conduct f o r employee organizations (2) a proposed code of f a i r labour practices. The c r u c i a l part of t h i s section provides that these standards of behavior w i l l be set by the Department of Labour and the C i v i l Service Commission. C. The Canadian Federal System In August 1963 the federal government appointed a committee c a l l e d "The Preparatory Committee on C o l l e c t i v e Bargaining i n the Public S e r v i c e . " ^ ) This committee was composed primarily of senior government o f f i c i a l s and was to make preparation f o r the introduction into the Public Service of appropriate forms of c o l l e c t i v e bargaining and a r b i t r a t i o n . The o f f i c i a l report was published i n July 1965 and contained recommendations f o r sub-sequent l e g i s l a t i o n to be named the Public Service S t a f f Rela-t i o n s Act. -60-In February 1967, Parliament approved the new act which i s to govern the c o l l e c t i v e bargaining r e l a t i o n s h i p between the government and the federal public employees. The act makes pro-vi s i o n s f o r c e r t i f i c a t i o n of employee organizations as well as s e t t i n g up a form of c o l l e c t i v e bargaining f o r the public em-ployees. In addition, the act sets up the Public Service S t a f f Relations Board to administer the various provisions of the Act. The actual l e g i s l a t i o n follows the recommendations of the Heeney Report* reasonably c l o s e l y . I. Bargaining Substance There do not appear to be too many r e s t r i c t i o n s upon the parties to c o l l e c t i v e negotiations to r e s t r i c t the areas f o r '~ bargaining. Nevertheless the government has s p e c i f i e d i n Sec-t i o n 56 of the P.S.S.R.** Act that no c o l l e c t i v e agreement s h a l l contain provisions which "would require . . . the enactment or amendment of any l e g i s l a t i o n by Parliament, except f o r the pur-pose of appropriating moneys required f o r i t s implementation." This same section s p e c i f i e s the pieces of l e g i s l a t i o n which, des-pi t e the f a c t that they are pertinent to the status of the em-ployees, are not to be a l t e r e d through the process of c o l l e c t i v e bargaining. These include: l)The Government Employees Compensa-t i o n Act, 2) Government Vessels Compensation Act, 3) Public Service Employment Act, 4) Public Service Superannuation Act. E s s e n t i a l l y what the government i s saying i s that they are pre-*The report of the Preparatory Committee on C o l l e c t i v e Bargaining/in the Public Service. **Public Service S t a f f Relations Act. -61-pared to discuss such "bread and butter" issues such as rates of pay, hours of work, leave and d i s c i p l i n e but are not prepared to amend the present system of h i r i n g and promotion (the merit sys-tem) nor i s i t .prepared to discuss the general f i n a n c i a l admin-i s t r a t i o n of the government, nor w i l l i t discuss the present scheme of superannuation. It w i l l be i n t e r e s t i n g to watch the development of c o l l e c -t i v e bargaining i n the federal c i v i l s ervice. E s p e c i a l l y i n t e -r e s t i n g w i l l be the developments concerning the issue of the sp e c i f i e d l i m i t s of c o l l e c t i v e bargaining. Pension schemes, f o r instance, have often been the subject of f a i r l y vigorous bargain-ing sessions, e s p e c i a l l y i n the private sector. Nevertheless the government's decision not to involve these "fringe issues" i n the actual c o l l e c t i v e bargaining sessions does not preclude the employees from making representation to the government through other channels. The government has taken a rather i n t e r e s t i n g stand with respect to boards of a r b i t r a t i o n , not a r b i t r a t i o n of grievance disputes, but a r b i t r a t i o n a r i s i n g out of a s i t u a t i o n where the parties to c o l l e c t i v e negotiations are not able to conclude an agreement. Section 70 outlines the subjects with which a r b i t r a l awards may deal: "rates of pay, hours of work, leave entitlements, standards of d i s c i p l i n e , and other terms and conditions of employment d i r e c t l y related thereto." _S.70(lT7 This same section goes on to outline those subjects which are not to be incorporated i n a r b i t r a l awards such as: "standards, procedures or processes governing the appointment, appraisal, promotion, demotion, transfer, l a y - o f f or release of employees." _^S.70(3_7 -62-This l a t t e r part of Section 70 i s an apparent attempt to protect the "merit system" of h i r i n g and promotion, i t remains to be seen whether the merit system can be kept outside the arena of c o l l e c t i v e bargaining. As an a d d i t i o n a l guide to boards of a r b i t r a t i o n there i s Section 68 which prescribes those considerations which the government f e e l s are important i n making awards. The f u l l text of t h i s section follows: 68. In the conduct of proceedings before i t and i n rendering an a r b i t r a l award i n respect of a matter i n dispute the A r b i t r a t i o n Tribunal s h a l l consider (a) the needs of the Public Service f o r q u a l i f i e d - employees; (b) the conditions of employment i n s i m i l a r occu-pations outside the Public Service, including such geographic, i n d u s t r i a l or other variations as the A r b i t r a t i o n Tribunal may consider r e l e -vant ; (c) the need to maintain appropriate relationships i n the conditions of employment as between d i f f e r e n t grade l e v e l s within an occupation and as between occupations i n the Public Ser-vice ; (d) the need to e s t a b l i s h terms and conditions of . employment that are f a i r and reasonable i n r e l a t i o n to the q u a l i f i c a t i o n s required, the work performed, the r e s p o n s i b i l i t y assumed and the nature of the services rendered; and (e) any other f a c t o r that to i t appears to be re-, levant to the matter i n dispute. Despite the s p e c i f i c suggestions made as to what the government f e e l s are important considerations i n making a r b i t r a l awards, there does not appear to be any lack of f l e x i b i l i t y i n t h i s portion of the l e g i s l a t i o n i n view of S.68(e) which allows the a r b i t r a t o r s to consider any other factors which they deem re-levant. -63-I I . The Power Structure Under the P.S.S.R. Act there has been a somewhat d i f f e r -ent delegation. :of power than occurred i n the United States under Executive Order 10988. Whereas i n the United States the res-p o n s i b i l i t y f o r administering the labour r e l a t i o n s system has been placed i n the hands of the i n d i v i d u a l agencies, the Cana-dian system i s to be administered by an e s p e c i a l l y created board named the P.S.S.R. Board. This Board i s i n e f f e c t the key to the new system of c o l l e c t i v e bargaining as f a r as federal public servants are concerned. The Board's chairman as well as the other members are appointed by the Governor General i n Council. The Chairman and vice-chairman are not to be representative of any interested groups. The remainder of the members are to be chosen as being representative i n equal numbers of the in t e r e s t s of employees and the interests- of the employer respectively. The Board w i l l administer the process of c e r t i f i c a t i o n _S.2_7« It w i l l determine what units are appropriate f o r c o l l e c t i v e bargaining as well as determine those employees who w i l l be designated as being excluded from the provisions of the act (managerial personnel e t c . ) . The Board i s also empowered to deny c e r t i f i c a t i o n from any organization which i s a f f i l i a t e d or donates funds to any p o l i t i c a l party _S.3_7« T n e Board i s further empowered under Section 20 and 19 to make regulations of a general nature as well as make i n q u i r i e s into suspected v i o l a -tions of the Act. (Unfair labour practices, u n f a i r employer practices, etc.) - 6 4 -T h e . B o a r d ' s f u n c t i o n s a l s o i n c l u d e t h e s e t t l e m e n t o f d i s -p u t e s a r i s i n g o u t o f q u e s t i o n s o f l a w . T h e s e m a y b e q u e s t i o n s o f l a w r e l a t e d t o a r b i t r a t i o n o f g r i e v a n c e d i s p u t e s o r t h e y m a y b e q u e s t i o n s o f l a w t h a t , m a y b e r e f e r r e d t o i t a s a r e s u l t o f a r b i t r a t i o n c o n c i l i a t i o n o r a d j u d i c a t i o n . T h e B o a r d i n f a c t i s e m p o w e r e d n o t o n l y w i t h s e t t i n g i t s o w n r u l e s a n d p r o c e d u r e s , b u t a l s o t h o s e o f t h e a r b i t r a t i o n t r i b u n a l . T h e p o w e r s o f t h e B o a r d a r e n o t r e s t r i c t e d s i m p l y t o m a t t e r s o f l e g a l i n t r e p r e t a t i o n . T h e B o a r d a p p o i n t s t h e m e m b e r s o f t h e a r b i t r a t i o n t r i b u n a l w h i l e t h e c h a i r m a n o f t h e a r b i t r a -t i o n t r i b u n a l i s a p p o i n t e d b y t h e G o v e r n o r i n C o u n c i l u p o n t h e a d v i c e o f t h e B o a r d . A n y c o n c i l i a t o r a p p o i n t e d u n d e r S e c t i o n 52 o r a n y c o n c i l i a t i o n b o a r d a p p o i n t e d u n d e r S e c t i o n 78 i s a p p o i n t e d b y t h e c h a i r m a n o f t h e B o a r d . W h a t w i l l u n d o u b t e d l y - b e c o m e a k e y t o t h e o p e r a t i o n o f t h e a c t i s t h e q u e s t i o n o f t h e s e l e c t i o n o f t h e m e t h o d o f r e s o -l u t i o n o f d i s p u t e s . A c c o r d i n g t o S e c t i o n s 37 a n d 38, t h e b a r -g a i n i n g a g e n t w h e n a p p l y i n g f o r c e r t i f i c a t i o n o n b e h a l f o f a g r o u p o f e m p l o y e e s m u s t s p e c i f y t h e m e t h o d b y w h i c h s u b s e q u e n t c o n f l i c t s w i l l b e r e s o l v e d s h o u l d b a r g a i n i n g n o t b r i n g a b o u t a n a g r e e m e n t . H e h a s t h e c h o i c e o f t w o m e t h o d s : t h e f i r s t b e i n g c o n c i l i a t i o n w h i l e t h e s e c o n d i s a r b i t r a t i o n . T h i s s e l e c t i o n o f t h e p r o c e s s o f r e s o l u t i o n o f c o n f l i c t s t h e n b e c o m e s p a r t o f t h e c e r t i f i c a t i o n f o r t h a t b a r g a i n i n g a g e n t . T h e c h o i c e m a d e b y t h e b a r g a i n i n g a g e n t m a y b e a l t e r e d u p o n a p p l i c a t i o n t o t h e B o a r d b u t t h e r e a r e s o m e t i m e c o n s t r a i n t s i m p o s e d u p o n t h i s c h a n g e o f p r o c e s s f o r r e s o l u t i o n o f a d i s p u t e . -65-T h e i n t e n t i o n o f S e c t i o n 38 i s t o c o m p e l t h e b a r g a i n i n g a g e n t t o s t i c k t o t h e c h o i c e o f p r o c e s s o n c e h e h a s g i v e n n o t i c e t o b a r g a i n c o l l e c t i v e l y u n t i l t h e n e g o t i a t i o n s i n q u e s t i o n h a v e b e e n s u c c e s s f u l l y t e r m i n a t e d . I t a p p e a r s t h a t t h e p r o c e s s m a y b e c h a n g e d o n c e a c o n t r a c t h a s b e e n s i g n e d , b u t c a n n o t b e c h a n -g e d o n c e n o t i c e t o b a r g a i n h a s b e e n g i v e n u n t i l t h e n e x t c o l l e c -t i v e a g r e e m e n t c o m e s u p f o r r e n e g o t i a t i o n . T h i s s e c t i o n e f f e c t -i v e l y k e e p s t h e p r o c e s s f o r t h e r e s o l u t i o n o f c o n f l i c t s i n f o r c e t h r o u g h o u t a n y o n e s e r i e s o f n e g o t i a t i o n s . A s f a r a s t h e a c t u a l p r o c e s s o f c o n c i l i a t i o n i s c o n c e r n e d , t h e r e i s v e r y l i t t l e t h a t i s u n u s u a l a b o u t i t . O n c e t h e p r o c e s s h a s b e e n c h o s e n b y t h e b a r g a i n i n g a g e n t , i t c a n b e b r o u g h t i n t o a c t i o n b y e i t h e r p a r t y . I t c o n s i s t s o f t w o s t e p s : a c o n c i l i a -t i o n o f f i c e r a n d a c o n c i l i a t i o n b o a r d . T h e c o n c i l i a t i o n o f f i c e r c a n b e b r o u g h t i n t o a d i s p u t e a t t h e r e q u e s t o f e i t h e r p a r t y a n d r e p o r t s t o t h e c h a i r m a n o f t h e B o a r d h i s s u c c e s s o r f a i l u r e t o y b r i n g t h e ; p a r t i e s t o a n a g r e e m e n t . T h e c o n c i l i a t i o n b o a r d s t e p c a n b e a c t i v a t e d a t t h e r e q u e s t o f e i t h e r p a r t y o r a l t e r n a t e l y , a t t h e r e q u e s t o f t h e B o a r d . T h e c o n c i l i a t i o n b o a r d ' s r e p o r t i s t o c o n t a i n i t s f i n d i n g s a s t o t h e f a c t s o f t h e d i s p u t e a s w e l l a s r e c o m m e n d a t i o n s r e g a r d i n g t h e m a t t e r s i n d i s p u t e . S e c -t i o n 89 f u r t h e r p r o v i d e s t h a t , i f b o t h p a r t i e s s o a g r e e , t h e r e c o m m e n d a t i o n s o f t h e c o n c i l i a t i o n b o a r d c a n b e m a d e b i n d i n g u p o n t h e p a r t i e s a n d e n f o r c e d a c c o r d i n g l y . T h e s e c o n d p r o c e s s o f r e s o l u t i o n s p e c i f i e d b y t h e P . S . S . R . A c t i s A r b i t r a t i o n . I n t h i s c a s e t h e r e c o m m e n d a t i o n s o f t h e A r b i t r a t i o n T r i b u n a l a r e b i n d i n g u p o n b o t h p a r t i e s t o -66-the dispute /_S.7_,7 with no resort to strike action permitted, /_T01(l)p_7 Once notice to bargain has been given by the bargain-ing agent, and the negotiations have subsequently broken down, then either party to the dispute can make a request to go to arbitration. Although,the findings and recommendations of the Arbitration Tribunal are binding, Section 67(2) provides that i f the parties can agree with respect to one or more of the matters in dispute then the Tribunal is not to make an award with respect to these matters. The Arbitration Tribunal i s guided in making i t s awards by Sections 68 and 70. Section 70 makes clear those matters which are to be subject to becoming part of a r b i t r a l awards as well as those matters which may not be dealt with. This section allows the" a r b i t r a l awards to con-tain recommendations about wages and hours of work, etc., but not about matters covered in the Public Service Employment Act and related to the "merit system" of hiring and promotion. Section 68, which has already been reproduced (p. 62) suggests consider-ations which the tribunal must make in making i t s awards. Of special interest is the absence of a consideration which, i t has often been suggested, should be of concern to an arbitration tribunal - the economic condition of the country. The government of Canada has, through the P.S.S.R. Act, placed i t s e l f in much the same position that employers in the private sectors have been accustomed to for some time. The Treasury Board w i l l be responsible for the bargaining as well as a host of other management functions as described in the new Financial Administration Act. The administration of the federal - 6 7 -labour r e l a t i o n s system i s delegated to the quasi-autonomous body, the P.S.S.R. Board. The Parliament of Canada retains the ri g h t to veto any f i n a n c i a l commitment made by the government-employer (the Treasury Board). D. Conclusions It should be obvious from the foregoing discussion that there are some v i t a l differences between the system under which the United States federal c i v i l servants w i l l bargain and the new Canadian system introduced i n February 1967. The differences between the two systems do not occur i n the area of bargaining substance. Both the Canadian and U.S. systems s p e c i f i c a l l y ex-clude from the bargaining process any matters e s s e n t i a l to the functioning of the "merit system" of appointment and promotion. In speaking on the House of Commons b i l l E-1&1, which was l a t e r to become the Public Service Employment Act, the Minister of National Revenue, the Rt. Hon. E.J. Benson s a i d : " . . . This measure w i l l not only r e t a i n the merit system of appointment and promotion, and the type of job secu r i t y long enjoyed by c i v i l servants, but w i l l extend them to thousands of ad d i t i o n a l (5) employees." w / The Report of the Preparatory Committee also i n -s i s t e d that c e r t a i n matters be given s p e c i a l status i n c o l l e c t i v e b a r g a i n i n g . T h e y suggested that no subject a c t u a l l y be exclu-ded from bargaining although the matters rel a t e d to superannua-t i o n , appointment, promotion and d i s c i p l i n e should under no c i r -cumstance form part of an a r b i t r a l award. It should be remembered, however, that the Committee was making recommendations without knowing that there was to be a new d i v i s i o n of power as a re s u l t -68-of the new Public Service Employment Act and the new F i n a n c i a l Administration Act. It i s the new d i v i s i o n of power which gives the Canadian fed e r a l system such a d i f f e r e n t outlook compared to the American system. Under the U.S. E.O. 10988, most of the power during bar-gaining sessions w i l l be i n the.'hands of the Agency representative. I t w i l l be r e c a l l e d that i t i s the agency which i s responsible f o r a great deal of the actual administration of the Executive Order, exclusive of grievance procedures. Not only must the agency assume the role of employer and management during c o l l e c -t i v e negotiations, but i t must also administer the system. This leaves unanswered the question of what happens i n case there i s a c o n f l i c t of i n t e r e s t between the administration function and the bargaining function. The Canadian system makes an attempt to avoid t h i s possi-ble c o n f l i c t of i n t e r e s t . Through the introduction of three b i l l s simultaneously, there has been a substantial r e d i s t r i b u t i o n of powers. Parliament has retained the r i g h t of veto over any f i n a n c i a l arrangements; i t i s a f t e r a l l the ultimate authority of the land. Under the F i n a n c i a l Administration Act, the Treasury Board assumes the r o l e of management. I t i s responsible, among other things, " f o r the determination of rates of pay, hours of work, leave and other conditions of employment; f o r the c l a s s i f i -cation of positions and employees, fo r the establishment of standards of d i s c i p l i n e ; and f o r the promotion of safe and s u i t -able working conditions. "(7) In other words, the r e a l employer w i l l be the Treasury Board, and i n t h i s r ole the Treasury Board w i l l be i n much the same p o s i t i o n as any large employer i n the -69-private sector. The problems of administering the regulations and generally running the system has been delegated to the P.S.S.R. Board, a quasi-independent body. Despite the differences i n regulations both the U.S. and Canadian governments have some common philosophies towards fede-r a l c i v i l servants. They both assert the idea that the l e g i s l a -t i v e bodies cannot r e l i n q u i s h t h e i r authority as national sove-reigns. In neither system.is there any way f o r the employee associations to force upon the country anything i t does not wish. In Canada, the Treasury Board i s responsible f o r c o l l e c t i v e bar-gaining; i n the U.S.A., the agencies perform t h i s function; i n both cases any agreements are subject to the overriding authority of the l e g i s l a t u r e s . In both countries there i s unequivocal approval f o r the functioning of a form of c o l l e c t i v e bargaining i n the c i v i l s ervice. There are some differences i n p o l i c i e s between the United States and Canada. Perhaps the most obvious of these i s the case when c o l l e c t i v e bargaining by i t s e l f i s not capable of re-s u l t i n g i n a c o l l e c t i v e agreement. In the United States, there i s an outright ban on s t r i k e s and an insistence that any form of a r b i t r a t i o n must be advisory i n nature. In Canada, the govern-ment has recognized that there are many government services which could conceivably be interrupted without causing anything much worse than a public nuisance. Consequently there has been no outright ban on s t r i k e s other than s t r i k e s of the armed forces and the R.C.M.P. It may well be that the absence of a s t r i k e -70-ban i s l i t t l e more than a r e a l i z a t i o n that a ban on s t r i k e s i s d i f f i c u l t i f not impossible to enforce e f f e c t i v e l y . -71-CHAPTER VI THE SASKATCHEWAN LABOUR RELATIONS SYSTEM A. Introduction This chapter w i l l examine the E s s e n t i a l Services Emergency-Act which was recently passed by the Saskatchewan l e g i s l a t u r e . The Act i s only a portion of the whole labour r e l a t i o n s system presently operating i n that province. I t w i l l be looked at i n conjunction with the Trade Unions Act because i t too contains un-usual features. The emphasis of t h i s chapter w i l l be placed upon determining the kind of attitude which the Saskatchewan l e -g i s l a t u r e has taken towards the c o l l e c t i v e bargaining process. It can be s a f e l y sa i d that compared to many provinces Sas-katchewan has adopted a kind of l a i s s e z - f a i r e approach to labour r e l a t i o n s . The new l e g i s l a t i o n s t i l l i s very moderate i n outlook yet i t nevertheless e f f e c t s a step towards increased government int e r e s t i n the c o l l e c t i v e bargaining process. Both the changes i n the Trade Union Act and the E s s e n t i a l Services Emergency Act were suggested i n a report made to the government by a s p e c i a l Inquiry Commission. Most of the report's recommendations were implemented. Among other-things, the report suggested strongly that ". . . labour negotiations should be l e f t to management and the trade union with a minimum of outside i n t e r -f e r e n c e . " ^ ) I t further expressed the hope that labour and mana-gement approach the bargaining table with good, w i l l and attempt to resolve t h e i r differences without resort to the s t r i k e or lockout. i I t added, however, that there were cases where the public could - 7 2 -f e e l j u s t i f i e d i n not l e t t i n g the parties to a dispute s e t t l e t h e i r difference completely on t h e i r own but that, nevertheless, "only i n those areas where the public inte r e s t places a duty upon the Government that any interference with t h i s process could be j u s t i f i e d . " F i n a l l y t h i s report summed up i t s fee l i n g s that any l e g a l amendment to the exis t i n g body of laws ought to give consideration to giving maximum protection and freedom to the i n d i v i d u a l worker. Nowhere i n the report i s there any recommendation that the government ought to i n t e r f e r e i n the c o l l e c t i v e bargaining process except under exceptional circums-tances . B. The Trade Unions Act The Trade Union Act contains an unusual feature regarding the settlement of grievance disputes. Other provinces and the federal government have l e g i s l a t i o n requiring that a l l c o l l e c t i -ve agreements provide f o r the compulsory a r b i t r a t i o n of grievance disputes. This provision i s intended to outlaw s t r i k e s during the l i f e of a v a l i d c o l l e c t i v e agreement. When a c o l l e c t i v e agreement contains no provision to submit grievance disputes to private a r b i t r a t i o n then the l e g i s l a t i o n normally requires that the parties submit t h e i r dispute to a Labour Relations Board f o r a r b i t r a t i o n whose award then becomes binding upon both p a r t i e s . The Trade Union Act contains no such provision. Saskatchewan never has banned and s t i l l does not ban s t r i k e s during the l i f e of a c o l l e c t i v e agreement. A recent amendment to the Trade Union Act provides f o r the enforcement of a r b i t r a t i o n clauses v o l u n t a r i l y included i n -73-any c o l l e c t i v e agreement /S.23A/. Under t h i s section a r b i t r a -t i o n awards s h a l l be enforceable as orders of the Labour Rela-tions Board, and no stoppage of work w i l l be allowed during the l i f e of an agreement whenever such agreement provides that griev-ance disputes are to be s e t t l e d by a r b i t r a t i o n . In addition, i n cases where a c o l l e c t i v e agreement pro-vides f o r the settlement of grievance disputes by a r b i t r a t i o n , but the parties have not agreed upon an a r b i t r a t i o n procedure, then Section 2 3 B applies. This provides f o r an a r b i t r a t i o n pro-cedure to be followed whenever the parties cannot agree upon a procedure of t h e i r own. When one party f a i l s to nominate i t s representative then the other party may apply to the courts to appoint a member i n behalf of the f i r s t party. The two nominees choose a chairman with both parties paying hal f of the chairman's expenses. The Act contains no requirements as to how the a r b i t r a -t i o n process i s to be conducted. Once the parties agree before-hand that t h i s should be the process f o r the resolution of griev-ance disputes, then the parties must, honour t h e i r agreement, instead of resorting to s t r i k e action. Despite the government's unwillingness to get involved i n the actual a r b i t r a t i o n process, the message of the government to labour and management i s clear: "We would prefer you s e t t l e your disputes through a r b i t r a t i o n rather than by a s t r i k e , but above a l l we would rather you s e t t l e d your own disputes." -74-C. The E s s e n t i a l Services Emergency Act The E s s e n t i a l Services Emergency Act was passed during a s p e c i a l session of the Saskatchewan Legislature on September 7, 1966. The session was c a l l e d to "deal with an emergency the Government feared would develop i f a s t r i k e of gas supply workers of the Saskatchewan Power Commission . . . were allowed to con-t i n u e . " ^ ) The s t r i k e had begun on September 2; the l e g i s l a t i o n received Royal Assent on September 8 and was proclaimed i n force on September 12, thereby making any further s t r i k e action by these workers i l l e g a l . The Act recognizes that there should not be any s t r i k e under c e r t a i n s p e c i f i c circumstances of "emergencies." The c r i -t i c a l section of the Act i s Section 3 . 3 . Where at any time i n the opinion of the Lieutenant Governor i n Council a state of emergency exists i n the province or i n any area of the province i n such c i r -cumstances that l i f e , health or property could be i n se-rious jeopardy by reason of a labour dispute involving: (a) employees engaged i n the operation of any system, plant or equipment f o r furnishing or supplying water, heat, e l e c t r i c i t y or gas service to the public or any part of the public; or (b) employees engaged i n the provision of h o s p i t a l services anywhere i n the province; the Lieutenant Governor i n Council may by proclamation declare that from and a f t e r a date f i x e d i n the procla-' mation a l l further action and procedures i n the dispute are to be replaced by the emergency procedures provided i n t h i s Act. This means that government actions under t h i s Act are l i -mited to conditions of "emergency" where the circumstances are such that " l i f e , health or property" could be i n serious jeopardy. The Act i s not very s p e c i f i c as to what i t means by these terms. -75-I t c e r t a i n l y does not answer the i n e v i t a b l e question of whether these emergencies also include such things as the economic health of the Province. (It i s t h i s very question which has plagued the United States i n i t s a p p l i c a t i o n of the Taft-Hartley emergency provisions.) Despite the lack of s p e c i f i c d e f i n i t i o n s , i t i s clear that the Act was intended to provide procedures f o r dealing with labour disputes surrounded by unusual circumstances. The actual emergency procedures consist of banning any present or impending s t r i k e and subsequently to s e t t l e the d i s -pute through compulsory a r b i t r a t i o n . One wonders from the word-ing of the Act whether the a r b i t r a t i o n procedures once started are intended to replace c o l l e c t i v e bargaining or are intended to supplement i t . There i s no provision i n t h i s piece of l e g i s l a t i o n f o r the parties to substitute t h e i r own settlement regarding one or more of the matters i n dispute, f o r part of the a r b i t r a t i o n award (as i s sometimes provided i n s i m i l a r l e g i s l a t i o n elsewhere). D. Summary Despite a general attempt to maintain a " l a i s s e z - f a i r e " approach to labour r e l a t i o n s , Saskatchewan too has chosen to i n -crease public involvement:1 i n the c o l l e c t i v e bargaining process. As f a r as the average c o l l e c t i v e negotiations are concerned, there i s l i t t l e government i n t e r e s t other than requiring the enforcement of a r b i t r a t i o n clauses already forming part of the c o l l e c t i v e agreement. The E s s e n t i a l Services Emergency Act i s directed to-wards labour disputes i n certain s p e c i f i c i n d u s t r i e s . The under-l y i n g philosophy i s simply that there are certain kinds of labour - 7 6 -disputes the resolution thereof simply cannot be l e f t completely up to the parties involved. The l e g i s l a t i o n recognizes that the government must be able to prevent or stop s t r i k e s i n organiza-tions providing e s s e n t i a l services, as well as provide a t r i b u n a l to prescribe the terms of employment, should the parties not be able to conclude t h e i r own c o l l e c t i v e agreement. - 7 7 -CHAPTER VII THE BRITISH COLUMBIA APPROACH—BILL 33 A. Before B i l l 33 On December 2, 1968, a brand new shiny framework f o r the processing of c o l l e c t i v e bargaining disputes went into operation i n B r i t i s h Columbia. In the spring of t h i s same year the B.C. Legislature passed a b i l l commonly known as B i l l 33, but o f f i c i a l -l y c a l l e d the Mediation Commission Act. The passing of the act resulted i n the repeal of many sections of the B.C. Labour Rela-tions Act which had previously been the regulator of the labour r e l a t i o n s system i n B r i t i s h Columbia. The B.C. Labour Relations Act w i l l s t i l l govern the pro-cesses of c e r t i f i c a t i o n and grievance a r b i t r a t i o n . The new B i l l 33 has reasserted the requirement that a l l c o l l e c t i v e agreements provide f o r the compulsory a r b i t r a t i o n of disputes a r i s i n g out of interpretations of v a l i d c o l l e c t i v e agreements _S.2_7. The new l e g i s l a t i o n i s directed primarily at streamlining the c o l l e c t i v e bargaining process, a step long advocated by both labour and management. At t h i s point of time, i t i s not yet possible to gauge the e f f e c t which the B i l l w i l l have upon the c o l l e c t i v e bargaining process. Nevertheless i t i s possible to detect some dr a s t i c changes i n the climate which the new b i l l w i l l create. Before one can examine the "new climate," however, i t w i l l be necessary to backtrack somewhat and describe the old process very b r i e f l y . Under the regulations of the B.C. Labour Relations Act, a s t r i k e was prevented from occurring not only u n t i l a s t r i k e -78-vote had been taken, but also u n t i l a complex c o n c i l i a t i o n pro-cess had been complied with. This c o n c i l i a t i o n process was a two step one each normally requiring cert a i n periods of time statuto-r i l y defined. The f i r s t step i n t h i s elaborate c o n c i l i a t i o n process was the appointment of a c o n c i l i a t i o n o f f i c e r who would subsequently report to the Minister of Labour eith e r : 1) that the parties had readied an agreement or 2) that the parties had not reached agreement, i n which case he would make "recommendations as to the matters i n dispute." The second step i n the c o n c i l i a t i o n process involved the appointment of a c o n c i l i a t i o n board consisting of one represent-at i v e from each of the disputing p a r t i e s and one chairman nomina-ted by the f i r s t two representatives. The duties of the board were simply to a s s i s t the parties to conclude an agreement, and, f a i l i n g t h i s , to "make recommendations regarding the matters i n dispute." The system as i t was being used resulted i n a major pro-blem. Despite the fact that the "machinery was provided merely to f a c i l i t a t e agreement,"(1) the machinery i n fact delayed e f f e c t i v e c o l l e c t i v e bargaining. The timing and regulations go-verning the two step c o n c i l i a t i o n procedures were such that u n i -l a t e r a l action, by either union or management (such as s t r i k e s or lockouts), was not allowed u n t i l usually long a f t e r the actual expiry date of the c o l l e c t i v e agreement. Neither party was able to apply economic sanctions u n t i l these c o n c i l i a t i o n procedures had been complied with. - 7 9 -Since the function of both c o n c i l i a t i o n board and c o n c i l i a -t i o n o f f i c e r was to f i n d "terms and conditions that the parti e s (2) can agree t o " v ' t h i s usually meant f i n d i n g some sort of a com-promise between the company's o f f e r and the union's demands.(3) The bargaining usually started p r i o r to c o n c i l i a t i o n ; at t h i s point the f l o o r f o r bargaining was the company's o f f e r . The con-c i l i a t i o n o f f i c e r ' s and the c o n c i l i a t i o n board's recommendations both had a tendency to raise the e f f e c t i v e f l o o r f o r c o l l e c t i v e bargaining. When c o l l e c t i v e bargaining f i r s t got under way, management was faced with a lengthy and cumbersome c o n c i l i a t i o n process. Each of these steps usually raised the e f f e c t i v e l e v e l of bargain-ing somewhat; consequently ^ management was often unwilling to lay a l l of i t s cards on the table u n t i l a f t e r the c o n c i l i a t i o n board's recommendations were released. And, i n f a c t , i t was often sub-sequent to t h i s point arid frequently just before a s t r i k e dead-l i n e that a good deal of the e f f e c t i v e bargaining took place.(4) The new legislation.'does away with the old two step conci-l i a t i o n process. B. The Mediation Commission Act ( B i l l 33) The main thrust of the B i l l i s directed at providing the parties to a c o l l e c t i v e bargaining dispute with new machinery to deal with these disputes. The central core of the new l e g i s l a t i o n i s the creation of the Mediation Commission to administer the provisions of the Act (Mediation Commission Act); e s p e c i a l l y im-portant, are the terms of reference of the Commission. A b r i e f -80-desc r i p t i o n of the Act w i l l s u f f i c e to point out the c r u c i a l e l e -ments of the new l e g i s l a t i o n . There are e s s e n t i a l l y two ways i n which the Mediation Commission can become involved i n a labour dispute. The f i r s t way i s associated with unusual circumstance where the Minister of Labour "considers that the public i n t e r e s t i s or may be a f f e c t -ed by the dispute" _S.11(2_7 or a l t e r n a t i v e l y when the Lieutenant Governor i n Council f e e l s that the public i n t e r e s t and welfare are s u f f i c i e n t l y involved i n a labour dispute. The second way fo r the Commission to become involved i n a labour dispute i s by request of eith e r party. Section 11(b) provides that, at the request of either party to a c o l l e c t i v e negotiation, the Commission may appoint a Mediation O f f i c e r . There i s no compulsion on the part of the Commission to follow t h i s course of action. Once the Commission has appointed a Mediation O f f i c e r , there exists the p o s s i b i l i t y that, should the Mediation O f f i c e r not be successful i n getting the parties to conclude an agreement, the f u l l Commission w i l l be brought into the dispute. The Commission may hold f u l l hearings into any dispute f o r which a Mediation O f f i c e r has been appointed. The decision of whether or not the f u l l Commission i s to get involved i n a labour dispute i s normally l e f t up to the Commission i t s e l f . * While the Mediation O f f i c e r ' s report does not contain any recommendations regarding any of the matters i n dispute, the report of the Media-*Except where the Lt. Gov. i n Council r e f e r s a dispute to the Commission under Sections 18, 19. -81-t i o n Commission i s to contain recommendations of just such a na-ture. The Act s p e c i f i e s that: "The Decision s h a l l state the terms and conditions which i n the opinion of the Commission would be a f a i r and reasonable c o l l e c t i v e agreement between the p a r t i e s , together with reasons supporting the opinion held by the Commis-sion." _S".15(1_7« I n other words the recommendations w i l l not be arr i v e d at on the same basis used by the old C o n c i l i a t i o n Boards. Whereas C o n c i l i a t i o n Boards were instructed to bring the parties to an agreement, there was no d i r e c t i o n as to the q u a l i t y of such agreements. The Commission has no such d i s c r e t i o n i n view of the wording of Section 15; i t must recommend terms and conditions which would constitute a " f a i r and reasonable c o l l e c -t i v e agreement." C. The Public Interest The new B i l l 33 introduces the concept that what i s i n the best i n t e r e s t s of two disputing p a r t i e s to c o l l e c t i v e negotiations' i s not necessarily i n the i n t e r e s t of the public at large. The government f e l t i t necessary to provide a mechanism through which parties to a dispute would have a contract providing f o r the terms and conditions of employment whenever the parties could not agree among themselves on such matters. The emphasis of the B i l l appears to be on preventing a s t r i k e , presumably when a s t r i k e would have excessively harmful e f f e c t s upon t h i r d p a r t i e s , i . e . , the community at large exclusive of the disputing p a r t i e s . The controversial Section 1&V provides that the Lieutenant Governor i n Council may r e f e r any labour d i s -pute to the Commission whenever i t i s necessary to protect the -82-"public i n t e r e s t and welfare." The Commission then takes over the dispute and handles i t on the "adversary system" s i m i l a r to that which i s practiced i n a court room (not necessarily using the same rules and procedures). The Commission handles labour disputes i n much the same manner as l e g a l disputes would be handled i n a court room. The Commission determines those matters which are i n dispute with the help of the parties involved. The Commission then assigns the burden of proof to either party regarding each of the matters i n dispute. Presumably, the Commission hands down an award (or recommendation) based upon the merit of the r a t i o n a l arguments presented to i t by the disputing p a r t i e s . Once an award i s made, i t i s f i n a l and binding upon both pa r t i e s "except to the extent that the part i e s agree to vary the same". /_S.18(1) (b) ( i i _ 7 D. The Public Service Public Service employees are treated i n much the same way that employees would be i f they were working i n industries heavily endowed with the public i n t e r e s t . There i s one d i f f e r -ence, however, i n that Section 50 provides that any person em-ployed i n the Public Service "who takes part i n a s t r i k e . . . i s g u i l t y of an offence under t h i s Act." The Executive Council (the Cabinet) has been set up as the employer f o r the purposes of c o l l e c t i v e bargaining. A l l the provisions of the Act, pertinent to employers also apply to the "government-employer" (the Executive Council). The awards of the Commission, when handed down, are binding upon the government and - 8 3 -i t s employees. Even i n the public service, however, the parties to a bargaining dispute may s t i l l modify the decision of the Commission as they wish. E. Summary and Conclusion P r i o r to the introduction i n the B.C. Legislature of B i l l 3 3 , i t was f e l t that any changes i n the current l e g i s l a t i o n would embody some of the recommendations of the Nemetz R e p o r t . w / When the l e g i s l a t i o n was f i n a l l y presented to the House, i t con-tained very l i t t l e reference to the Swedish labour r e l a t i o n s system. In f a c t there appeared to have been substantial borrow-ings from the workings of the Aust r a l i a n A r b i t r a t i o n Commission.(6) Nevertheless, some of the recommendations of the Nemetz report were implemented. Nemetz seemed to have recognized that the C o n c i l i a t i o n Board system had i t s problems i n view of the fa c t that "the de c i -sions of these c o n c i l i a t i o n boards have a s i g n i f i c a n t influence upon the trend of settlements throughout our economy."(?) He showed concern that the terms of reference of C o n c i l i a t i o n Boards were inadequate, that f i n d i n g "terms and conditions that the parti e s can agree to" was simply not enough. Nemetz further pointed out that a permanent body should be established to administer mediation procedures and thereby give some s t a b i l i t y and continuity to the mediation function. Through i t s l e g i s l a t i o n , the government has indicated that the people would be well served through the implementation of these two r e -commendations . 1 -84-The Mediation Commission was formed t o provide a perma-nent f o r c e of h i g h l y q u a l i f i e d men t o d e a l w i t h labour d i s p u t e s . The Commission i s of a semi-independent nature. The government can order the Commission when and where t o act i n unusual c i r - cumstances , but i t cannot d i r e c t l y tamper w i t h the q u a l i t y of i t s judgements or awards. The new system of labour r e l a t i o n s has s e v e r a l a s s e t s . The f i r s t asset i s the e l i m i n a t i o n of the o l d two-step c o n c i l i a -t i o n process w i t h the r e s u l t a n t "step f u n c t i o n " ( r a i s i n g the f l o o r f o r c o l l e c t i v e bargaining) every time a c o n c i l i a t i o n r e p o r t was made. The second asset i s th a t the government i s now f r e e d from a d m i n i s t e r i n g the mediation procedures, and, i n f a c t , of g e t t i n g i n v o l v e d i n labour d i s p u t e s at a l l , except i n unusual circumstances. The t h i r d asset of the new system i s the a c t u a l terms of reference of the Commission—the concept of making recommenda-t i o n s on the b a s i s of what c o n s t i t u t e s "a f a i r and reasonable c o l l e c t i v e agreement." This i s the concept which has great po-t e n t i a l t o i n f l u e n c e the labour r e l a t i o n s c limate i n B.C. " C o l l e c t i v e b a r g a i n i n g as i t i s c u r r e n t l y p r a c t i c e d i n Canada i s not, by and l a r g e responsive to l o g i c a l r a t i o n a l argu-ment . . . i n f a r too many cases, wage increas e s r e f l e c t the raw economic power of e i t h e r labour or management."^) This i s how the present c o l l e c t i v e b a r g a i n i n g system has been described by Dr. Noel H a l l . He f u r t h e r went on t o e x p l a i n t h a t " c o l l e c t i v e b a r g a i n i n g i s very much a v e h i c l e f o r a c t i v a t i n g l a t e n t power: power s p r i n g i n g from a monopoly p o s i t i o n ; power derived from -85 -control over access to p a r t i c u l a r s k i l l s ; power a r i s i n g from holding a s t r a t e g i c p o s i t i o n i n the economy; power based on (Q) widespread public support . . . " V 7 / The Commission's recommendations are intended to r e s u l t i n much the same thing which would normally have been arr i v e d at through c o l l e c t i v e bargaining, i . e . , "a c o l l e c t i v e employment contract." (One can hardly c a l l the Commission's recommendations a c o l l e c t i v e agreement.) The process through which the Commis-sion w i l l a r r i v e at i t s conclusions w i l l , i n some cases, contain s t r i k i n g l y d i f f e r e n t provisions than those which would normally have been contained i n a c o l l e c t i v e agreement had c o l l e c t i v e bargaining been allowed to follow i t s course to conclusion. This then i s the most i n t e r e s t i n g aspect of the new l e g i s l a t i o n : the prospect that c o l l e c t i v e bargaining w i l l be influenced by another process with a greater r a t i o n a l content. I t may well be that c o l l e c t i v e bargaining, i n general, w i l l undergo a subtle change i n emphasis. I t may be that r e s u l t s during c o l l e c t i v e negotia-tions w i l l be obtained less through the use or the threat of eco-nomic sanctions and more through the use of r a t i o n a l argument and persuasion. Whether t h i s change of emphasis a c t u a l l y occurs or not i s at the moment pure speculation. Nevertheless i t i s an i n t e r e s t i n g aspect of the l e g i s l a t i o n . Neither i s i t possible, at t h i s time, to know whether the government, in..drafting the l e g i s l a t i o n , i n -tended to influence the c o l l e c t i v e bargaining process as widely as t h i s . A f i n a l comment should be made here regarding the compul-sory feature of the A c t — t h e feature contained i n Section 18 -86-which has been the target of so much controversy. Despite the controversy about t h i s section, i t gives the p r o v i n c i a l l e g i s l a -ture no power which i t did not have before the passage of the Act. This section simply delegates power from the l e g i s l a t u r e to the Cabinet. Whether i t was a necessary step or not can be debated, but i t i s c e r t a i n l y not an i n d i c a t i o n that the govern-ment intends to put an end to a l l s t r i k e s . In commenting on the B i l l i n general, the B.C. Minister of Labour and now Attorney-General, the Hon. L e s l i e R. Peterson, said that the l e g i s l a t i o n was aimed at preventing a "possible d i s l o c a t i o n of services e s s e n t i a l to the public (at which time) a s t r i k e or lockout i s v i r t u a l l y not acceptable to the public. n(10) "Nor does i t have any intention of taking away or i n h i b i t i n g the r i g h t of labour to s t r i k e i n cases that do not have widespread implications f o r the province as a whole." (-^ The government obviously has no intention of applying the a r b i t r a t i o n provisions i n l i e u of f r e e l y negotiated c o l l e c t i v e agreements. The Act c l e a r l y provides that the parties may sub-s t i t u t e t h e i r own terms and conditions of employment, at any time, f o r those suggested by the Commission i n i t s recommendations. The Minister of Labour himself asserted that: "a f r e e l y negotia-ted c o l l e c t i v e agreement i s preferable to any other. "(12) -87-CHAPTER VIII AN ONTARIO PROPOSAL: THE RAND COMMISSION REPORT A. Introduction In August 1966, the government of Ontario appointed the Honourable I.C. Rand to head a Royal Commission Inquiry to "inquire into the means of enforcement of the r i g h t s , duties and obligations and l i a b i l i t i e s of employees and employers, . . . and of trade unions and t h e i r members, . . . with r e l a t i o n to each other and to the general public . . ., and the use of s t r i k e s . . ., and to report thereon and to make such recommendations as he may deem f i t . . . " ( D The Royal Commission Inquiry termina-ted with the release of i t s report which w i l l be referred to simply as the Rand Report. The Rand Report contains recommendations on v i r t u a l l y every aspect of labour relations,yet i t i s the intent of t h i s chapter to r e s t r i c t i t s e l f to discussion of those recommendations which d i r e c t l y concern the c o l l e c t i v e bargaining ^process i t s e l f . As i n p r i o r chapters, t h i s discussion has a r b i t r a r i l y chosen two points of focus: 1) the ef f e c t upon the bargaining substance, and 2) the ef f e c t upon the power positions of the disputants. The report i t s e l f makes recommendations f o r three d i s t i n c t types of employment: 1) general i n d u s t r i a l employment; 2) public service employment; 3) e s s e n t i a l industries or services employment. This chapter w i l l deal with each of these types of employment s i t u a -tions i n turn. -88-The kind of c o l l e c t i v e bargaining with which the Rand Report seems to be most concernedlis the s i t u a t i o n where an agreement i s f i n a l l y concluded through an i n t e r p l a y of economic coercion or, ultimately, economic power. The f o c a l point of his concern i s the regretable s i t u a t i o n which almost always r e s u l t s when two parties cannot reach agreement, the t h i r d party i n the dispute - the public - bears a sizeable portion of the costs of disagreement. He c r i t i c i z e s the commonly asserted desire to maintain "free c o l l e c t i v e bargaining." The Rand Report says that t r u l y free c o l l e c t i v e bargaining " . . . may be assumed to imply that the p a r t i e s , l e f t to themselves come to an agreement of t h e i r own v o l i t i o n without other compulsion other than r a t i o n a l persuasion . . . " ( 2 ) itA t- t n e s a m e time i t i s admitted by both labour and management that economic coercion generated by them i s the decisive factor i n the 'agreement' . . . What the i n -sistence . . . (on free c o l l e c t i v e bargaining) . . . means i s that they demand to be l e t alone to f i g h t i t out with t h e i r own weapons, regardless of the e f f e c t on the public or any other i n -t e r e s t ; 'free' means from the r u l e s of s o c i e t y . " ( 3 ) i t would appear, therefore, that the Rand Report i s not overly sympathetic toward those who would advocate that labour and management should be allowed to s e t t l e t h e i r contract disputes on t h e i r own terms. In f a c t , the Rand Report has taken p a r t i c u l a r l y dead aim at s t r i k e s i n general, describing them as economic struggles, . . . t r a i l i n g . . . wastage and turmoil. It further adds that the s t r i k e w i l l soon be regarded as a "barbarian" form of s o c i a l struggle. - 8 9 -B. General Recommendations The Rand Report would create an A r b i t r a t i o n Tribunal to oversee the Ontario labour-relations scene. This Tribunal would create i t s own rules of practice and procedure subject to the approval by the Governor General i n Council. The Report proposes that the Tribunal not be bound by l e g a l rules of evidence, but that the proceedings be carried out under an atmosphere of i n -formality, i f possible. This same Tribunal would have wide sweeping- powers with respect to handing down a r b i t r a t i o n awards, ending s t r i k e s l a s t i n g longer than 6 months, and suspending or making modifica-tions of the provisions of the Labour Relations Act. The Tribu-nal may also declare i t s award binding upon the parties as a c o l l e c t i v e agreement. Since these powers of the Tribunal are so wide sweeping i t w i l l be necessary to examine these c a r e f u l l y i n order to determine the p o t e n t i a l e f f e c t of the report upon the c o l l e c t i v e bargaining process. Section 25 empowers the Tribunal to declare a s t r i k e ended. Under t h i s provision, the temporary replacements which the employer may have hired during the s t r i k e , become permanent employees at the d i s c r e t i o n of the employer. This section f u r -ther provides that s t r i k i n g employees may return to t h e i r employ-ment. The reader should be reminded here that i t i s not the purpose of t h i s paper to question the wisdom and c l a r i t y of pur-pose of such a provision. The implications of t h i s section are clear, however—if i n only one s e n s e — t h a t employees remaining - 9 0 -on s t r i k e f o r a period i n excess of 6 months could wind up i n a very awkward s i t u a t i o n regarding t h e i r jobs. Section 21+ of the recommendations of the Report provides another occasion f o r the Tribunal to go into action. When a s t r i k e (or lockout) has been i n progress f o r 90 days, then either party may request that the dispute be s e t t l e d by compulsory a r b i -t r a t i o n . The second party i s not compelled to accept the award. If the second party does not accept the award, however, then the f i r s t party may also request that the Tribunal make "such modifi-cations and suspensions of the Act r e l a t i n g to picketing, the status-of s t r i k e r s , the employment of replacements or the re-employment of s t r i k e r s which may appear to i t (the Tribunal) to be just and to be conducive to the conclusion of an agreed c o l l e c -t i v e agreement." ^_S.24(b_7 This same section allows the T r i -bunal to declare the a r b i t r a l award binding upon both the parties to the dispute i f i t i s s a t i s f i e d that the party r e j e c t i n g the award " . . . has f a i l e d to bargain i n good f a i t h , or has acted c l e a r l y unreasonably . . . " /S. 24(c__7'. The other i n t e r e s t i n g provision suggested by the Rand Report i s that contained i n Section 2 1 . Section 21 provides that an employer /.may attempt to convince the Tribunal, beyond a reason-able doubt, that economic terms proposed by the union are such that the most probable r e s u l t would be the bankruptcy of the employer. Should the employer succeed i n so convincing the T r i -bunal, then the Tribunal may use i t s discretionary powers to change or suspend any provisions of the Act r e l a t i n g to picketing and the status of s t r i k i n g employees . . . "as may appear j u s t . " -91 -A union may also make s i m i l a r a p p l i c a t i o n to the Tribunal should i t be threatened with destruction. Clearly, therefore, the Tribunal would be used whenever, at i t s d i s c r e t i o n , the power positions of employer and unions showed a g l a r i n g discrepancy, and one of the parties was attempt-ing to take advantage of the inequity of power. The powers of the Tribunal would be exerted i n cases when c o l l e c t i v e bargaining had c l e a r l y broken down or when the parties have contravened re-gulations of the Act or when either party has f a i l e d to act i n good f a i t h . C. Public Employment The bulk of the recommendations regarding public employees are contained i n Section 54 of the Rand Report. The essence of t h i s section i s simply that public servants have not been given the r i g h t to s t r i k e p r i o r to t h i s and that at the present time there appears to be no reason why they should expect to be able to s t r i k e . The Rand Report recognizes that a form of c o l l e c t i v e bargaining can be practiced i n the public service, but that s t r i k e s of public employees cannot be tolerated. The reasoning offered by the Rand Report i s somewhat insul a r i n nature as i f l i t t l e consideration had been given to the advantages of allowing c i v i l servants to s t r i k e . Some quotations from the report w i l l serve to i l l u s t r a t e the kind of attitude which the authors of the Rand Report hold towards public employment. Before t h i s i s done however, i t must be pointed out that i n no way does the report suggest a mechanism through which public employees would be able to bargain e f f e c t i -- 9 2 -vely. There i s a passing reference that "Generally speaking, . . . i n public employment, a r b i t r a t i o n has proved reasonably s a t i s f a c t o r y , and the fac t that i n ce r t a i n cases i t i s compulso-ry does not detract from the q u a l i t y of the r e s u l t s . " ^ ) The Rand Report suggests that perhaps c i v i l servants have cer t a i n advantages over employees i n the private sector. "Per-manence of economic sec u r i t y i n private enterprise i s today being sought by workers as never before; annual incomes, pensions, i n -surance, and other benefits demonstrate the l i f e outlook that has supplanted the day to day concern. This desideratum i n employ-ment i s most f u l l y s a t i s f i e d i n the public sector . . . ; .-.there i s no reason why that permanency should be excluded as a consider-a t i o n to be taken into account i n public c o l l e c t i v e bargaining." (5) Rand goes on: "When individuals . . . v o l u n t a r i l y undertake these r e s p o n s i b i l i t i e s (of the public service) they enter a f i e l d of v i r t u a l monopoly."(6) Because the public develops r i g h t s of expectations and because a society i s based on a "structure of interwoven t r u s t , credit and obligation, good f a i t h and r e l i a b i -l i t y are es s e n t i a l to i t s mode of operation." It i s for these reasons that the authors of the Rand Report have suggested that there should not be any s t r i k e s tolerated i n the public service. The Report would ban s t r i k e s i n the public service while o f f e r i n g a system of a r b i t r a t i o n as the only presently viable a l t e r n a t i v e to the s t r i k e whenever the parties cannot reach an agreement. D. E s s e n t i a l Services and/or Industries The Rand Report also gives s p e c i a l consideration to employ-ment s i t u a t i o n i n what i t c a l l s e s s e n t i a l i n d u s t r i e s . /S.567. - 9 3 -No s t r i k e would be allowed a f t e r an industry i s declared essen-t i a l , and the Tribunal would step into the dispute; determine the matters which were i n dispute and eventually hand down an award which would normally constitute a c o l l e c t i v e agreement as f a r as the Act i s concerned. Despite the fact that the Rand Report recommends that there should be no s t r i k e subsequent to an industry being de-clared e s s e n t i a l , there:Ms no other compulsion placed upon the disputing parties other than f o r c i n g them to f i n d areas of agree-ment. The parties may elect to a r r i v e at t h e i r own c o l l e c t i v e agreement without any help, or they may elect to submit t h e i r dispute to a private a r b i t r a t i o n process. Should the gears of the Tribunal have been put i n motion the parties may s t i l l sub-s t i t u t e t h e i r own settlement f o r any or a l l of the Tribunal's re-commendations on the matters i n dispute. During i t s hearings the Tribunal may even hear arguments from the government as well as from both disputants. There i s an obvious lack of d e f i n i t i o n i n Section 5 6 . F i r s t of a l l there are no c r i t e r i a set f o r the Tribunal's awards. Secondly there i s only a loose d e s c r i p t i o n of what constitutes an " e s s e n t i a l industry, business or s e r v i c e " which i s such as owing to i t s public involvement, and the e f f e c t upon i t of a s t r i k e may be declared so by the Lt. Governor-in-Council. The declara-t i o n s h a l l depend upon the " e x i s t i n g actual or imminent degree of danger to the health, safety, convenience or v i t a l i n t e r e s t of the p u b l i c . " _3.5_Z--94-Another discretionary power which the Tribunal possesses deals with stoppages of work i n e s s e n t i a l services. Although the recommendations of the report are that there should be no s t r i k e s i n industries declared to be " e s s e n t i a l , " the Tribunal " i n i t s d i s c r e t i o n may permit the temporary cessation of such part of the work or service involved as i t may specify . . . as not being to the maintenance of substantial service f o r the health, safety, convenience or v i t a l i n t e r e s t of the p u b l i c . " _S\ 56._7 E. Summary and Conclusions The Rand Report's recommendations are an unashamed attempt to influence the outcome of the c o l l e c t i v e bargaining process. An attempt i s made not so much to influence the q u a l i t y of the agreements but rather to encourage the signing of agreements. Nevertheless there are provisions i n the recommendations which could a f f e c t the q u a l i t y of a c o l l e c t i v e agreement. The Rand Report shows concern over i n d u s t r i a l disputes of the kind which have resulted i n the closing of a business because the union's demands were simply greater ..than the company's a b i l i -t y (willingness) to pay. The case described i n the Report i s the recent case of the New York Herald-Tribune which was forced into bankruptcy p a r t i a l l y as a r e s u l t of the demands made by s t r i k i n g employees. In order to deal with t h i s p a r t i c u l a r type of s i t u a -t i o n , the recommended l e g i s l a t i o n would allow the Tribunal to make a r b i t r a r y changes i n picketing regulations, and the status of s t r i k i n g and replacement employees—an obvious mechanism ,to_ -95-weaken the p o s i t i o n of the union. This same regulation would apply to an employer attempting to break a union. The Tribunal i s allowed to make or suspend e x i s t i n g regu-la t i o n s with respect to picketing etc. . . .; the aim of the Tribunal being to take steps which i n i t s opinion seem " j u s t " and w i l l be conducive to the conclusion of a c o l l e c t i v e agreement. The Rand Report has assumed that the essence of a s t r i k e i s that employees f i n d the terms of employment unsatisfactory and hence stop working while they i n s i s t upon r e t a i n i n g t h e i r status as employees. Being very concerned with s t r i k e s and t h e i r e f f e c t upon t h i r d p a r t i e s , Rand has aimed most of the report's f i r e -power at the tools of coercion of both labour and management. The fundamental concern i s that c o l l e c t i v e agreements be concluded. The Report explains that: "The ordinary incidents of s t r i k e s : picketing, replacement and reemployment of s t r i k e r s as supplement-ary features of coercion may be made e f f e c t i v e to that end by just and f a i r modifications (of the regulations) to meet the par-t i c u l a r circumstances of any case, . . . For that, a f l e x i b l e j u r i s d i c t i o n of the Tribunal i s c a l l e d f o r . Either the employer or the union should therefore be permitted . . . to apply f o r such modifications (of the regulations) as may be found to be just and appropriate." The powers of the Tribunal would be "designed to meet si t u a t i o n s where s p e c i a l circumstances are present such as lack of good f a i t h , i n e q u a l i t y of power or unreasonableness  i n terms proposed."(7) The objectives of the recommendations are, i n the words of the Report: -96-1) "To confine legitimate economic pressures, so f a r as i s reasonably possible, to the employer and his employees . . . involved i n a dispute, to the exclusion of t h i r d persons. n(8) 2) "To induce, the parties towards an agreement with the minimum of disruption of t h e i r normal working a c t i v i t i e s and r e l a t i o n s , " ( i . e . strikes)(9) 3) "Within the l i m i t s of fairness to both pa r t i e s , to increase the pressures toward agreement with the minimum of external i n t e r v e n t i o n " ^ ) As f a r as es s e n t i a l services and public service employ-ment i s concerned, the Report's opinion i s that the public i s too strongly affected f o r employees i n these categories to be allowed to s t r i k e . - 9 7 -CHAPTER IX SUMMARY AND CONCLUSIONS Summarizing a paper such as t h i s i s , of course, rather more d i f f i c u l t than summarizing a quantitative analysis. This paper was a f t e r a l l a q u a l i t a t i v e analysis of the new wave of opinion which tends to support or argue the philosophy that there i s a need f o r increased government i n t e r e s t i n the c o l l e c t i v e bargaining process. The opinion i n question i s that the public i n t e r e s t should i n some fashion be asserted i n certain or a l l c o l l e c t i v e bargaining r e l a t i o n s h i p s . Before the conclusions respecting t h i s new wave of opinion can be made, however, i t may be wise to review our findings with respect to two topics: 1) t h i s problem of what constitutes the public i n t e r e s t ; 2) what i s the t r a d i t i o n a l r ole of government. A. The Public Interest B i l l 33 speaks of the "public i n t e r e s t " , the Taft-Hartley Act speaks of the "national health and safety", the Rand Report also speaks of the public i n t e r e s t so that avoidance of the term i s not p r a c t i c a l i n a study of t h i s s o r t . Some scholars have attempted to convince us to stay away from t h i s vague and unde-finabl e (at any rate not i n any precise mathematical sense) con-cept of the public i n t e r e s t . There i s no doubt that, on the basis of the opinions reviewed i n t h i s stud}', one simply cannot assign any single meaning or d e f i n i t i o n to the public i n t e r e s t . The i n e v i t a b l e question a r i s e s , of what use, then, i s t h i s con--98-cept of the public i n t e r e s t i f i t cannot be defined. To say, unequivocably, that the concept i s incapable of being defined and that i t s use should be abandoned i s to be f a r too harsh. A s a t i s f a c t o r y d e f i n i t i o n of the public inte r e s t may never be found, but there i s l i t t l e doubt that i t w i l l continue to be used by p o l i t i c i a n and l e g i s l a t o r . The public inte r e s t i s capable of being applied i n s p e c i f i c circumstances; i n other words, i t possesses a s i t u a t i o n a l meaning. Furthermore, i t i s a convenient descriptive to be attached to c e r t a i n kinds of public p o l i c i e s - often those kinds of p o l i c i e s applied by governments which r e s u l t i n personal costs to some portion of the individ u a l s i n our society but which, i t i s alleged, w i l l eventually r e s u l t i n greater benefits to the whole of society. Public i n t e r e s t p o l i c i e s imply a kind of sy n e r g i s t i c approach to the d i s t r i b u -t i o n of s o c i a l benefits i . e . the sum of the personal costs of a p o l i c y are l e s s than the t o t a l s o c i a l benefit. Once a public i n t e r e s t p o l i c y has been formulated i t usual-l y involves an evaluation of the extent to which certain s o c i a l l y acceptable s o c i a l goals or values are or would be affected. Its app l i c a t i o n involves choosing between these goals or v a l u e s — choosing which i s morer important or which should be given higher p r i o r i t y . Sometimes these goals or values w i l l appear to be p u l l i n g i n d i f f e r e n t d i r e c t i o n s . What are these goals and values which we have been throwing about so freely? In the f i e l d of labour r e l a t i o n s there are some goals or fundamental concepts to which we c l i n g despite the f a c t that we must sometimes compromise these treasured values. - 9 9 -We c l i n g f o r instance to the r i g h t of in d i v i d u a l s or groups of individu a l s to contract or not to contract. We uphold the right of i n d i v i d u a l s or groups of ind i v i d u a l s to use property f o r p r o f i t within the l i m i t s of c i v i l i z e d law. We assert the de s i r a -b i l i t y of in d i v i d u a l s being able to pursue wealth of various kinds be i t material, s p i r i t u a l or otherwise; i n other words, there should be some incentive f o r in d i v i d u a l s to "better" them-selves. These are values very dear to our c a p i t a l i s t i c way of l i f e and represent a l a i s s e z - f a i r e kind of philosophy. There are other values, however, which also form part of our s o c i a l structure. Most of these values are designed to main-t a i n the s o l i d a r i t y of the society and are contained i n our sys-tem of laws and unwritten codes of behavior. Individuals, f o r instance, are protected from the destructive acts of other i n d i -v iduals. We uphold the d e s i r a b i l i t y of having a competitive business atmosphere and i n s t i t u t e anti-combines laws which are i n f a c t , r e s t r i c t i o n s upon the in d i v i d u a l ' s (counting corporations as individuals) a b i l i t y to s t r i v e f o r greater p r o f i t . There exists an intangible sense of f a i r play i n our system of values and laws. When companies were powerful and employee associations weak, we made laws to weaken-the power po s i t i o n of i n d u s t r i a l organizations r e l a t i v e to t h e i r employees. The anti-combines laws are another example of t h i s intangible sense of f a i r play, these laws place l i m i t s upon the extent to which individuals may increase t h e i r u t i l i t y (to use an economic term) at the expense of other i n d i v i d u a l s e s p e c i a l l y when the gains i n private u t i l i t y are obtained at the expense of the rest of society. Society has many such protective devices. -100-Part of the e x i s t i n g public i n t e r e s t i s directed toward protecting the r i g h t s of the i n d i v i d u a l which we hold dear; part of the public i n t e r e s t i s directed toward regulating the a c t i v i -t i e s of i n d i v i d u a l s (or somehow r e s t r i c t i n g these a c t i v i t i e s ) to maximize the benefits of our c i v i l i z a t i o n f o r the whole community. Therein l i e s the e s s e n t i a l problems of determining what i s i n the public i n t e r e s t : (i) It i s d i f f i c u l t to measure the benefits of a l t e r n a t i v e p o l i c i e s and thereby determine which goals are to be given p r i o r i t y , ( i i ) These goals and values have changing p r i o r i t i e s over time. ( i i i ) Once i t i s agreed that a c e r t a i n goal i s i n the public i n t e r e s t , we must s t i l l face the problem of how t h i s w i l l be implemented. Since i t i s c l e a r l y d i f f i c u l t to speak s p e c i f i c a l l y about the public i n t e r e s t i n labour disputes, i t i s e s s e n t i a l there-fore that one r e a l i z e s that there are things d i r e c t l y related to the public i n t e r e s t about which one can speak s p e c i f i c a l l y . The only way one can speak s p e c i f i c a l l y upon the subject of the public i n t e r e s t i s to r e l a t e i t to s p e c i f i c public p o l i c i e s , s o c i a l goals or fundamental values. When one i s speaking about the public i n -terest, one i s i n v a r i a b l y r e f e r r i n g to public p o l i c i e s or a public consensus or the public good. Government i n s t i t u t e d p o l i c i e s (including the absence of them) d i r e c t l y a f f e c t and r e s u l t from our values and community goals. I t i s important therefore when analyzing labour r e l a t i o n s l e g i s l a t i o n to recognize that there -101-are e s s e n t i a l s o c i a l values involved; and i t i s equally import-ant to consider that new l e g i s l a t i o n or public p o l i c y often re-f l e c t s a change i n s o c i a l values or a change i n the p r i o r i t i e s of the community's goals. B. The T r a d i t i o n a l Role of Government Generally speaking, governments concerned themselves very l i t t l e with the c o l l e c t i v e bargaining process. Nevertheless, the l e g i s l a t i o n already on the books did imply that c o l l e c t i v e bar-gaining i t s e l f was a desirable process. Laws were made to en-courage the organization of employees to enable them to take c o l l e c t i v e action during wage negotiations. C e r t i f i c a t i o n proce-dures were set up to give o f f i c i a l recognition to the employees' chosen representative. Laws were passed to force the employers to bargain c o l l e c t i v e l y with t h e i r employees, and penalties were provided f o r anyone found g u i l t y of u n f a i r labour practices. Although we upheld the employer's r i g h t not to contract with his newly organized employees, the employer was forced to bargain i n good f a i t h with his employees. One might well ask: what i s the purpose of bargaining other than to conclude a contract. This i s where one notices the f i r s t apparent c o n f l i c t of s o c i a l values or goals. On the one hand we do not want to force the employer to enter into a contract; on the other hand we up-hold the d e s i r a b i l i t y of e f f e c t i v e c o l l e c t i v e bargaining. Hence we see values which are generally acceptable when taken i n the abstract, coming into c o n f l i c t when they are applied. There are countless case h i s t o r i e s dating as f a r back as the turn of the -102-present century, of employees and employers locked i n v i r t u a l combat over whether the employer should have to bargain with the employee representative. One group f e l t that they were merely attempting to assert t h e i r r i g h t s , while the other group f e l t i t s right s were being infringed upon. Management f e l t that i t was being forced to contract i n a new and d i f f e r e n t way - i n a c o l l e c -t i v e contract. This i s , i n e f f e c t , exactly what the r e s u l t of the government's p o l i c y on bargaining " i n good f a i t h " resulted i n . The p o s i t i o n of the employees was very simple. Employees, each facing a large corporate management on an i n d i v i d u a l basis, had no bargaining power; hence e f f e c t i v e c o l l e c t i v e bargaining was not possible. The choice, which was made then by the l e g i s -l a t o r s , was c l e a r l y to ensure e f f e c t i v e c o l l e c t i v e bargaining at the cost to management of having one of i t s rights (that of not contracting) somewhat c u r t a i l e d . It appears that s t r i k e s are accepted by federal and a l l p r o v i n c i a l governments* as an unavoidable part of the c o l l e c t i v e bargaining process because no government has yet banned s t r i k e s outright. There does exist, however, the underlying theory which seems to indicate that a l l e f f o r t s should be made to avoid s t r i k e s whenever possible. As long as c o l l e c t i v e bargaining i s to remain the acceptable process f o r the determination between employee and employer of terms and conditions of employment, the s t r i k e s may be unavoidable i n some cases. Nevertheless every e f f o r t i s made by the government to avoid the actual s t r i k e by a s s i s t i n g the parties to conclude a c o l l e c t i v e agreement. The federal and most ^Applies to a l l provinces except Saskatchewan -103-p r o v i n c i a l governments* have set up two step c o n c i l i a t i o n proce-dures which must be followed before a work stoppage can occur. The theory was that i t would give both parties more time to bar-gain as well as give s k i l l e d c o n c i l i a t o r s a chance to attempt to resolve the differences between the p a r t i e s . Another r e s t r i c -t i o n * regarding the s t r i k e was the enforcement of c o l l e c t i v e agreements as binding contracts once they were agreed upon. In other words, parties to a v a l i d c o l l e c t i v e agreement were expected to reserve any differences a r i s i n g out of the i n t e r p r e t a t i o n of that agreement without resorting to the s t r i k e . One of these s t r i k e r e s t r i c t i o n s has been e f f e c t i v e i n cutting down wildcat s t r i k e s and generally s t a b i l i z i n g the r e l a -tionship between employee and employer during the l i f e of the c o l l e c t i v e agreement. The r e s u l t has been that most of the d i s -putes which do become f u l l scale grievances eventually are s e t t l e d by a r b i t r a t i o n either private a r b i t r a t i o n or a r b i t r a t i o n of the Labour Relations Boards. The success of t h i s provision i s e v i -denced by the fact that, i n Saskatchewan, where there i s no l e g a l requirement to s e t t l e grievance disputes without work stoppages, most c o l l e c t i v e agreements v o l u n t a r i l y include provisions to s e t t l e grievances through a r b i t r a t i o n . The other s t r i k e r e s t r i c t i o n i s generally conceded to have been well intentioned but completely i n e f f e c t i v e . The e f f e c t of delaying the s t r i k e u n t i l the statutory c o n c i l i a t i o n procedures have been complied with has not been such as to give the parties more time to complete t h e i r negotiations. The o v e r a l l e f f e c t has *Applies to a l l provinces except Saskatchewan •104-been to delay effective negotiations u n t i l the conciliation pro-cedures have been complied with. It is widely acknowledged by both labour and management thatimany of the really substantial issues are often settled at the "eleventh hour" of bargaining. The net effect of the two step compulsory conciliation procedures has simply been to delay this eleventh hour c r i s i s from the expi-ry date of the contract to a point in time usually long past this natural eleventh hour - to the time when the conciliation proce-dures have been complied with. There have been four other instances where a government has asserted the public interest, in this case, in specific dis-putes. It was decided that specific strikes simply would no longer be tolerated by the public. They were dealt with through extra legal steps requiring the passage of special legislation; the disputes were: (i) 1950 ( i i ) 1958 ( i i i ) 1961 (iv) 1959 - National Railroad strike (CNR & CPR) - B.C. coast steamships strike - a threatened strike of the railroads - Newfoundland I.W.A. dispute The role of government toward public employees was tradi-tionally very simple. With the exception of Saskatchewan's pro-vinc i a l government, governments generally denied their public employees, both effective collective bargaining and the right to strike. Saskatchewan, on the other hand, has been successfully bargaining with i t s public employees without ever having had to deny them the right to strike. -105-In conclusion, therefore, t r a d i t i o n a l l y the government has attempted to stay out of c o l l e c t i v e bargaining disputes. The only kinds of involvement, which can be detected stems from a de-s i r e or p o l i c y to encourage employees to bargain c o l l e c t i v e l y and a p o l i c y to encourage the settlement of c o l l e c t i v e bargaining d i s -putes without work stoppage. Governments have generally passed l e g i s l a t i o n , i . e . , u n f a i r labour practice laws, which have gene-r a l l y resulted i n the c u r t a i l i n g of the economic power which could have been exerted, by the employer, against employees attempting to organize f o r the purposes of bargaining. The only remaining involvement by the p r o v i n c i a l and the federal govern-ments has resulted from the enforcement of those laws which re-quire that grievance disputes be s e t t l e d without work stoppages. These laws i n e f f e c t t r e a t the c o l l e c t i v e agreement as a l e g a l and binding contract between the employees and the employer. C. The New Role of the Government 1. The new r o l e of the government has been generally characterized by the r e a l i z a t i o n that there are certain kinds of labour disputes, the settlement of which cannot be l e f t complete-l y to the two disputing p a r t i e s . In a l l cases where new l e g i s l a -t i o n has been passed there has been no attempt to substitute any form of compulsion f o r c o l l e c t i v e negotiations. Whenever two parties sign an agreement of t h e i r own accord, then public p o l i c y has expressed'jthe opinion that t h i s i s i n the public i n t e r e s t . There i s no attempt to i n t e r f e r e with the contents of a f r e e l y negotiated c o l l e c t i v e agreement, UNLESS, there exists a threat -106-that a work stoppage w i l l occur or a work stoppage has actually-occurred. The Taft-Hartley Act r e s t r i c t s government action to pre-s i d e n t i a l action and court action i n those areas where a national emergency exists and where the national health and safety are imp e r i l l e d . Clearly these provisions r e s t r i c t government action to highly unusual circumstances generally c l a s s i f i e d as emer-gencies, and only where a s t r i k e i s threatened. Whereas the Taft-Hartley's provisions allow f o r adminis-t r a t i v e f l e x i b i l i t y i n determining emergencies, Saskatchewan's E s s e n t i a l Services Act leaves no such administrative f l e x i b i l i t y . The l e g i s l a t i o n prejudges those sit u a t i o n s which w i l l be regarded as emergencies; emergencies i n t h i s case are those disputes a f f e c t i n g public u t i l i t i e s and h o s p i t a l services. These emergen-cies are f a r more s p e c i f i c and le s s ambiguous than those emergen-cies r e f e r r e d to i n the Taft-Hartley Act. The B.C. B i l l 33 and the Rand Report's recommendations provide mechanisms f o r the statutory involvement of public bodies or agencies i n disputes involving the public i n t e r e s t . These disputes need not necessarily be c l a s s i f i e d as emergencies. In both these labour r e l a t i o n s systems, provisions are made for pu-b l i c involvement i n disputes other than emergency disputes. In neither system i s there any interference with the c o l l e c t i v e bar-gaining process unless i t appears that the process has f a l t e r e d s u f f i c i e n t l y that a s t r i k e has occurred or i s threatening to occur. In both systems agreement between the parties takes pre-cedence over any externally imposed terms and conditions of em-- 1 0 7 -ployment (subject of course to the law of the land). Both B i l l 33 and the Rand Report provide f o r government involvement i n unusual labour disputes only, and do not provide a system where the government agency i s automatically involved with making r e -commendations i n every labour dispute. In other words, B i l l 33 and the Rand Report prescribe public p a r t i c i p a t i o n i n labour d i s -putes only when: (i) the parties cannot agree amongst themselves AND ( i i ) the dispute i s of such.a nature that the settlement thereof cannot be l e f t to the disputing p a r t i e s . 2 . Another stand which the government has taken seems to be that the s t r i k e i s an undesirable form of s o c i a l c o n f l i c t . Taft-Hartley's provisions would delay s t r i k e s i n order to give the p a r t i e s a cooling-off period and perhaps give public opinion a chance to force the parties to a settlement. The Saskatchewan l e g i s l a t i o n prescribes that there should be no s t r i k e s i n "essen-t i a l i n d u s t r i e s . " The Rand recommendations prescribe much the same thing except that e s s e n t i a l industries w i l l be defined by the Lt. Governor-in-Council instead of by statute as i s the case i n the Saskatchewan system. B i l l 33 prohibits s t r i k e s when the dispute involves the "public i n t e r e s t " . The inevitable problem a r i s e s when one comes to decide which disputes are " s p e c i a l " enough to warrant asserting the public i n t e r e s t . In one case, the problem has been made easy by c a r e f u l d e f i n i t i o n of an e s s e n t i a l industry. The Rand Report contains several s p e c i f i c descriptions of conditions under which s t r i k e s may be ended through t h i r d party intervention. In most -108-cases, there w i l l have to be a period when the " t h i r d party" to a dispute i s groping f o r an answer to the question of when t h i s t h i r d party must assert the Public Interest i n labour disputes. Because of the lack of d e f i n i t i o n i n t h i s area, the best one can hope f o r , i s consistent a p p l i c a t i o n of the various l e g i s l a t i o n s . 3. The public employees of both Canada and the United States are i n a s u f f i c i e n t l y special; p o s i t i o n to deserve separate consideration. The American proposal i n E.O. 10988, c l e a r l y i n -dicates that, at t h i s point, public employees w i l l not be granted t r u l y e f f e c t i v e c o l l e c t i v e bargaining. The federal agencies responsible f o r the bargaining have been instructed to enter discussions with t h e i r employees, but they have not relinquished enough power to the employee associations to make e f f e c t i v e bar-gaining possible. The employees have no ri g h t to s t r i k e and ar-b i t r a t i o n i s provided on an advisory basis only. I f an agreement between agency and employees cannot be reached through consulta-t i o n and discussion then, the employees have no recourse to sanctions of any sort (except the increasingly popular "slowdown" or "work to rule") against the agency-employer. The Canadian Public Service S t a f f Relations Act at lea s t promises e f f e c t i v e c o l l e c t i v e bargaining. The d i v i s i o n of powers brought about through the passage of the Fi n a n c i a l Administration Act makes ef f e c t i v e c o l l e c t i v e bargaining possible. The Public Service S t a f f Relations Board, an independent body, w i l l administer the system, while the Treasury Board w i l l be able to bargain e f f e c -t i v e l y on behalf of the government. A l l t h i s has been provided without challenging the authority of Parliament. -109-A word of warning about the Canadian federal system should be included here. The system has not yet survived a r e a l test of f i r e . I t remains to be seen whether the government can continue to give public employees the option of either s t r i k i n g or going to compulsory a r b i t r a t i o n . I t i s quite possible f o r instance to v i s u a l i z e a s i t u a t i o n where employees have chosen to exercise t h e i r r i g h t to s t r i k e , and that the public eventually f e e l s that the s t r i k e can no longer be tolerated. Despite i t s weaknesses, t h i s Canadian system shows great promise of being capable of d e l i v e r i n g the public employees, the same benefits of c o l l e c t i v e bargaining which private employees already possess. D. The Future of C o l l e c t i v e Bargaining I t i s clear that e x i s t i n g public p o l i c y wishes to r e t a i n c o l l e c t i v e bargaining as the basis f o r the determination of terms and conditions of employment. I t i s also clear that s t r i k e s are regarded as somewhat of a "necessary e v i l " and that there are .  i ndications that s t r i k e s w i l l not always be tolerated by the public. The question therefore remains to be answered: What i s to become of c o l l e c t i v e bargaining i f i t i s to be stripped of the s t r i k e ? Since c o l l e c t i v e bargaining i s responsive by and large to the threat or use of raw economic power, can c o l l e c t i v e bargaining continue to be an e f f e c t i v e process? 1. Banning Strikes F i r s t of a l l , there i s no i n d i c a t i o n that s t r i k e s w i l l ever be completely outlawed or banned. The l e g i s l a t i o n presently -110-being t r i e d out only provides a mechanism fo r the assertion of the public i n t e r e s t i n certa i n kinds of s p e c i a l disputes. There i s not as yet any i n d i c a t i o n that s t r i k e s should be banned simply as a matter of p r i n c i p l e (although t h i s i s neither a strange nor new theory to those f a m i l i a r with the labour r e l a t i o n s l i t e r a t u r e ) . It i s u n l i k e l y that any such general s t r i k e ban w i l l ever be implemented i n the near future i n Canada - i f f o r no other reason than that i t would be almost impossible to enforce. The indications are that a s t r i k e should be an action of l a s t r e s o r t . The implication i s that the s t r i k e i s an undesirable form of s o c i a l c o n f l i c t . There are, however, precious few a l t e r -natives to s t r i k e action, once i t has been firml y established that neither party w i l l soften his stand during c o l l e c t i v e nego-t i a t i o n s . Nevertheless i t would seem reasonable that alterna-t i v e s to the s t r i k e be sought f o r and that attenpts be made to make them work, as long as we maintain that the s t r i k e i s an "unavoidable e v i l " . 2. The Need f o r an Alternative The need f o r an al t e r n a t i v e to s t r i k e action w i l l grow greater and greater as our tolerance of the t h i r d party effects of a s t r i k e decreases. At the.moment, machinery has been created to prevent s t r i k e s i n industries of an es s e n t i a l charac-t e r . How much longer w i l l i t be before we t r y to ban s t r i k e s causing merely general public inconvenience? (the Rand Report's recommendations l e f t the door open f o r such action to be taken). The only a l t e r n a t i v e to the s t r i k e at the moment appears to be compulsory a r b i t r a t i o n . Compulsory a r b i t r a t i o n may be a s a t i s -- I l l -f a ctory a l t e r n a t i v e whenever both'parties agree to be bound by the decision of the a r b i t r a t i o n t r i b u n a l . Surely, however, when disputants cannot agree upon compulsory a r b i t r a t i o n as an alterna t i v e s o l ution, some e f f o r t w i l l have to be expended, by both scholars and p r a c t i t i o n e r s i n the labour r e l a t i o n s f i e l d , to f i n d more imaginative solutions to the problem. As long as c o l l e c t i v e bargaining remains responsive to the threat or use of coercion, then ways must be found to allow the parties to impose upon each other a cost of disagreement, other than the s t r i k e . 3. Possible Changes i n the Nature of C o l l e c t i v e Bargaining There i s some hope that through the use of compulsory ar-b i t r a t i o n i n c r i t i c a l industries i n B r i t i s h Columbia, we may evolve a. new kind of dispute settlement process. In B r i t i s h Columbia, there w i l l exist the p o s s i b i l i t y that a labour dispute may be exposed to c r i t i c a l and r a t i o n a l a nalysis. The Mediation Commission, once i t holds hearings, bases i t s decisions upon what constitutes a f a i r and reasonable c o l l e c t i v e agreement and not upon the a b i l i t y of one party to impose a cost of disagreement upon the other. The awards of the Commission w i l l not be respon-sive to coercion but to r a t i o n a l argument. There exists the pos-s i b i l i t y that the Mediation Commission w i l l i n d i r e c t l y change the character of c o l l e c t i v e bargaining i f only i n those s e n s i t i v e industries which are l i k e l y to be affected by the "public i n t e r -est" aspects of the Act. The character of c o l l e c t i v e bargaining may well be i n -fluenced not only by B.C.'s Mediation Commission, but also by -112-Rand's a r b i t r a t i o n t r i b u n a l and the federal c i v i l service a r b i -t r a t i o n t r i b u n a l . One should not expect to see immediate and r a d i c a l changes i n the character of the c o l l e c t i v e bargaining process. The changes, i f any, are more l i k e l y to be subtle changes i n emphasis from a coercive atmosphere to a more r a t i o n a l one. 4 . Contents of C o l l e c t i v e Agreements There i s no evidence i n any of the recent l e g i s l a t i o n to support the view that Canadian governments are at a l l concerned with the contents of c o l l e c t i v e agreements signed i n the private sector. It seems surp r i s i n g that an organization entrusted with the economic helmsmanship of a nation would f a i l to express some inte r e s t i n the contents of the actual agreements signed. One need only remember the repercussions across the nation of the 1966 St. Lawrence Seaway workers' 30% (over two years) wage i n -crease, to r e a l i z e the importance of even one" such s i g n i f i c a n t wage agreement. 5. Conclusion In conclusion, therefore, i t may be said that governments are showing increasing concern with the t h i r d party effects of s t r i k e s i n e s s e n t i a l industries and.those industries which are heavily endowed with the public i n t e r e s t . Governments have ne-vertheless asserted that f r e e l y negotiated c o l l e c t i v e agreements are to be preferred to any other method of determining terms and conditions of employment. In the future, however, changing -113-s o c i a l , economic, and p o l i t i c a l factors may well bring about increasing government assertion of the public i n t e r e s t i n the qu a l i t y of actual c o l l e c t i v e agreements. -114-BIBLIOGRAPHY CHAPTER II THE PROBLEMS OF DEFINING PUBLIC INTEREST 1. Sorauf, F.J., "The Conceptual Muddle" in Friedrich, C.J., Nomos V: The Public Interest, Atherton Press, N.Y., 1962, pp..183-190. 2. Ibid., p. 190. 3. Ibid., p. 186. 4. Schubert, Glendon, The Public Interest: A Critique of the Theory of a P o l i t i c a l Concept, 1961. 5. Schubert, Glendon, "Is there a Theory of the Public Interest?" in.Friedrich, C.J., op. c i t . , p. 176. 6. Ibid., p. 176. 7. Pennock, J.R., "The One and the Many: A Note on the Concept" in.Friedrich, C.J., op. c i t . , pp. 177-182. 8. Ibid., p. 182. 9. Ibid., p. 182. 10. Colm, Gerhard, "The Public Interest: Essential Key to Public Policy," in Friedrich, C.J., op. c i t . , pp. 115-128. -11. Ibid., p. 117. 12. Frankfurter, Felix, Felix Frankfurter Reminisces, ed. Harlan B. Philips,p. 7 2 , quoted in Colm, ibid., p. 128. 13. Cassinelli, C.W., "The Public Interest in P o l i t i c a l Ethics" in Friedrich, C.J., op. c i t . , p. 44. 14. Ibid., p. 45. 15. Ibid., p. 4 6 . 1 6 . Ibid., p. 47. 17. Ibid., p. 47. 1 8 . Leys, W.A.R., "Ethics in Administrative Discretion", Public Administration Review, Vol. 3, 1943, p. 18. -115-Chapter II (cont'd) 19. Niemeyer, Gerhart, "Public Interest and Private U t i l i t y " in Friedrich, C/J., op. c i t . , p. 1. 20. Ibid., p. 3. 21. Ibid., p. 4. 22. Ibid., pp. 4, 5. 2 3 . Smith, Adam, Wealth of Nations, Bk. IV, Chapter 2, cited in Friedrich, C.J., op. c i t . , p. 6. 2 4 . Niemeyer, G., op. c i t . , p. 7 . 2 5 . Ibid., p. 8. 26. Ibid., p. 9. 27. Ibid., p. 10. 28. Ibid., p. 10. 2 9 . Ibid., p. 11. 30. Ibid., p. 11. 31. Schubert, Glendon, in Friedrich, C.J., op. c i t . , p. 162. 3 2 . Ibid., p. I 6 4 . 33. Ibid., p. 167. 3 4 . Ibid., p. I 6 4 . 35. Ibid., p. I64. 3 6 . Leys, W.A.R., "The Relevance and Generality of 'The Public Interest'" in Friedrich, C.J., op. c i t . , pp. 2 3 7 - 2 5 6 . 37. Ibid., p. 256. 38. Montgomery, J.D., "Public Interest in the Ideologies of National Development," in Friedrich, C.J., op. c i t . , p. 218. 39. Ibid., p. 218. 4 0 . Bodenheimer, in Friedrich, C.J., op. c i t . , p. 217. 41. Lipman, W. in Friedrich, C.J., op. c i t . , p. 217. -116-Chapter II (cont'd). 4 2 . Pennock, J.R., i n F r i e d r i c h , C.J., op. c i t . , p. 182. 43. Cohen, J u l i u s , "A Lawman's View of the Public Interest," i n F r i e d r i c h , C.J., op. c i t . , pp. 155-161. 44. Braybrook, David, "The Public Interest: The Present and the Future of.the Concept," i n F r i e d r i c h , C.J. pp. 1 2 9 - 1 5 4 . 45. Colm, Gerhard, i n F r i e d r i c h , C.J., op. c i t . , pp. 115-128. 4 6 . Musgrave, R.A., i n F r i e d r i c h , C.J., op. c i t . , p. 107. 47. Ibid., p. 108. 48. Ibid., p. 114. 49. Bailey, Stephen, "The Public Interest: Some Operational Dilemmas" i n . F r i e d r i c h , C.J., op. c i t . , pp. 96-106. 50. Ibid., p. 97. 51. Ibid., p. 97. 5 2 . Laswell, H.D., "The Public Interest: Proposing P r i n c i p l e s of Content-and Procedure" i n F r i e d r i c h , C.J., op. c i t . , pp. 54-79. 5 3 . Ibid., p. 57. Additional Bibliography 1. B a l l , J.A., Canadian Anti-Trust L e g i s l a t i o n , Williams and Wilkins Co., Baltimore, 1934. 2. Berle, A.A., Economic Power and the Free Society, The Fund fo r the Republic Pamphlet, 1957. 3. Berle, A.A., The American Economic Republic, Harcourt, Brace, and World, 1963. 4. Berle, A.A., and Means, G.C, The Modern Corporation and Private Property, McMillan Co,, New York, 1944. 5. Flatham, R.E., The Public Interest, J. Wiley & Sons, 1966. 6. Kaplan, A.D.H. Big Enterprise in Competitive System The Brookings I n s t i t u t e , Washington, D.C., 1954. -117-Chapter II (cont'd). 7. Means, G.C., Pricing Power and the Public Interest Harper and Brothers, New York,. 1962. '. " CHAPTER III The Traditional Role of Government 1. Anton, F.R., Role of Government in Settlement of Industrial Disputes. C.C.H. Canadian Limited, Don Mills, Ontario, 1962, p. 65. 2. Deputy Minister of Labour. Annual Report. Department of Labour for f i s c a l year 1902-1903, p. 59. 3. McKenzie King, W.L. Industry and Humanity. McMillan Co., Toronto, 1947, p. xxvi. 4. . Logan, H.A. State Intervention and Assistance in Collective Bargaining. University of Toronto Press: 1956. Additional Bibliography 1. Anton, F.R. Government Supervised Strike Votes. C.C.H. Canadian Limited, Montreal, 1961. 2. Bernstein, Enarson and Fleming. Emergency Disputes and National Policy, Harper and Brothers, 1955. 3. Carrothers, A.W.R. Labour Arbitration in Canada. Butterworths, Toronto, 1961. 4. Northrup and Bloom. Government and Labour. R.D. Irwin Inc., Homewood, I l l s . , 1963, pp. 455-478. CHAPTER IV Taft-Hartley Emergency Provisions 1. Meatpacking Dispute, 1948 - United Packinghouse Workers (CIO) v. five major meatpacking firms, New York Times Jan. 27, Feb. 20, 21, Mar. 4, 13, 15, 16, 17, 18, 19 21, 24, April 9, 10, 11, May 15, 18, 19, 21, 22, 1948, -118-Chapter IV (cont'd). 2. Bituminus Coal Miners' Pension Dispute, 1948 - United Mine Workers of America (Ind.) v. bituminous coal mine operators, New York Times:-Mar. 2 4 , A p r i l 4, 8, 9, 10, 1948. 3. Telephone Dispute. 1948 - American Union of Telephone Workers (CIO) v. -American Telephone & Telegraph Co. New York Times: - May 19, 20, 27, June.5, 1943. 4. Atomic Energy Dispute, 1954 - Carbide and Carbon Chemicals Co., a D i v i s i o n of Union Carbide & Carbon Corp. v. United Gas, Coke and Chemical Workers (CIO) and v. Atomic Trades and Labour Council (AFL). New  York Times:- July 7, 8, 9, 10, 11, 12, 13, August 5, 6,.12, 10, 18, October 31, November 7, 8, 11. 5. Basic S t e e l Industry Dispute, 1959 - United Steel Workers of America (AFL-CIO) v. basic s t e e l industry New York Times:- Feb. 26, 27, March 15, 20, 27, May 6, June 26, 27, 28:, July 12, 15, 16, 19, August 20, 29, Oct. 10, 11, 20, 21, Nov. 4, 8, 9, 1959; Jan. 3, 4, 5, I960. 6. Labour Relations Reference Manual, Vol. 48, pp. 3018, 3019. 7. "Maritime Industry Dispute, West Coast & Hawaii, 1962-Seafarers International Union of North America v. Shipowners and operators represented by the P a c i f i c Maritime Association," i n National Emergency Disputes  Under Labour Management Relations (Taft-Hartley)  Act 1947-1965, United States Department of Labour, March 1966, pp. 41-44. 8. Labour Relations Reference Manual, Vol. 48, pp. 2638-9 9. Ibid. 10. Longshoring Dispute on the A t l a n t i c and Gulf Coasts, 1964^-05, - International Longshoremen's Association (AFL-CIO) v. Shipping and stevedoring companies, New York Times:- Oct. 1, 2, Nov. 7, 27, Dec. 1, 17. 11. Labour Relations Reference Manual, Vol. 57, p. 2600-2603. 12. Ibid., p. 2601. 13. Ibid., p. 2601 14. Ibid., p. 2603. -119-Chapter IV (cont'd). Additional Bibliography 1. Bernstein, I., et a l . , Emergency Disputes and National Policy, Harper & Brothers, New York, 1955. 2. Northrup, H.R., and Bloom, G.F., Government and Labour, R.D. Irwin Inc.., Homewood, I l l s . , 1963. 3. National Emergency Disputes under Labour Management Relations (Taft-Hartley) Act. 1947-6"5~" U.S. Department of Labour, March, 1966. CHAPTER V The Case of the Public Servants 1. President J.F. Kennedy. "Executive Order 10988, Jan. 7, 1962," f u l l text in Industrial and Labour Relations Review, Vol. 15, No. 4, July, 1962, pp. 548-553. 2. Schneider, B.V.H. "Collective Bargaining and the Federal C i v i l Service,5-' in Industrial Relations: A Journal of- Economy and Society, Vol. 3, No. 3, May, 1964, PP. 97-120. 3. Hart, W.R. "The U.S. C i v i l Service learns to live with Executive Order 10988: An Interim Appraisal," in Industrial and Labour Relations Review, Vol..17, No. 2, Jan., 1964, pp. 203-220. 4. Report of the Preparatory Committee on Collective Bargaining in the Public Service (Heeney Report), Queen's Printer, Ottawa, July, 1965. 5 . Benson, E.J., Rt. Hon., cited i n : "New Legislation and the Federal Government Service," in The Labour Gazette, May , 1967, p. 291, 319. 6. Report of the Preparatory Committee on Collective Bargaining in the Public Service, op. c i t . , p. 34. 7 Benson, E.J., Rt. Hon. Minister of National Revenue, op_. c i t . , p. 291. -120-Chapter V (cont'd). Additional Bibliography 1. Cunningham, W.B. "Public Employment, Collective Bargaining and the Collective Wisdom U.S.A. and Canada," in Relations Industrielles, Vol. 21, 1966, pp. 406-433. 2. Cunningham, W.R. "Collective Bargaining in the Public Service," in Labour Gazette, October, 1967, p. 6 2 6 . 3. "The First Public Service Collective Agreements," in Labour Gazette. July, 1968. 4. Government of Canada. The Public Service Staff Relations Act. Queen's Printer, February, 1967. 5. Hart, Wilson, R. "The Impasse in Labour Relations in the Federal Civil-Service," i n Industrial and Labour  Relations Review. Vol. 14, No. 2, January, 1966, p. 175. 6. Independent Study Group. The Public Interest in National Labour Policy. Committee for Economic Development, December, 1961, pp. 75-79. 7. Taylor, George W. "Public Employment: Strikes or Procedures," in Industrial and Labour Relations Review, Vol. 20, No. 4, July, 1967. 8. "The Case of the Public Employees" in Canadian News Facts, February, 1968, p. 28. CHAPTER VI The Saskatchewan Labour Relations Systems "Labour Legislation in 1966", Labour Gazette, Feb. 1966, p. 101. Ibid., p. 101. Ibid., p. 103. The Essential Services Emergency Act, 1966. Queen's Printer, Regina, Saskatchewan, 1966. The Saskatchewan Trade Union Act, 1966. Queen's Printer, Regina, Saskatchewan, 1966. 1. 2. 3. 4-5. -121-CHAPTER VII The B.C. Approach - B i l l 33 1. Hall, Noel A. Contemporary Public Policy Issues in Industrial Relations. Industrial Administration Division, Faculty of Commerce, University of British Columbia, 1968, p. 6. 2 . Ibid., p. 6. 3. Ibid., p. 6. 4. Hall, Noel A. Lecture series, Jan., Feb., 1968, University of British Columbia. 5. Nemetz, N.T. The Honourable Justice. Report of Swedish Labour Laws and Practices. Department of Labour, Victoria, B.C., 1968. , 6. Kirby, Sir Richard. "Some Comparisons between Compulsory Arbitration and Collective Bargaining," Journal of Industrial Relations. Vol. 7, No. 1, March, 1967. 7. Kleinsorge, Paul L. "The Public Interest as a Criterion in Settling Labour Disputes: The Australian Experience," Journal of Industrial Relations. Vol. 6, No. 2 , . July, _____ 8. Nemetz, N.T. The Honourable Justice, o_p_. c i t . , p. 10. 9. Hall, Noel A. op_. c i t . , p. 5. 10. Ibid., p. 5. 11. Peterson, Hon. Leslie R. B.C. • Minister of Labour, in Labour Gazette, July, 1968, p. 3 9 2 . 12. Ibid., p. 3 9 2 . 13. Ibid., p. 3 9 2 . CHAPTER VIII An Ontario Proposal: The Rand Commission Report 1. Order in Council, Province of Ontario, l&th August, 1966. -122-Chapter VIII (cont'd). 2. Rand, the Hon. Ivan C, Commissioner. Report of the Royal  Commission Inquiry into Labour Disputes. Queen's Printer, Ontario, August, 1968, p. 41. 3. Rand, I. C , ibid. J P- 41. 4. Rand, I. C., ibid. > P- 112. 5. Rand, I. c . , i b i d . J P- 111. 6. Rand, I. c . , i b i d . » P. 106. 7. Rand, I. c . , i b i d . J P. 38. 8. Rand, I. c , i b i d . > P. 75. 9. Rand, I. c , i b i d . > P. 75. 10. Rand, I. c . , i b i d . > P. 68. PRELIMINARY BIBLIOGRAPHY A recommended reading l i s t of articles and books contri-buting to the understanding of the Government's role in Collective Bargaining: 1. Bakke, E.W., "Labour Management and the Public Interest," Industrial and Labour Relations Review, Vol. 16, No. 4, July 1963, p. 573. : -2. Bakke, E.W., Mutual Survival, Archon Books, Hamden Connecticut, .1966. 3. Brown, Emily Clark, Soviet Trade Unions and Labour Relations Harvard University Press, Boston, Mass. 1966, pp. 48-71. 4. Brown, Emily Clark, "Interests and Rights of Soviet Industrial Workers and the-Resolution of Conflict." Industrial and  Labour Relations Review, Vol. 16, No. 2, Jan. 1963. i 5. Chamberlain, N.W., The Labour Sector: An Introduction to Labour in the American Economy, McGraw-Hill, 1965. 6. Chamberlain, Neil W. and Shilling, Jane M., The Impact of Strikes: Their Social and Economic Cost, Harper Brothers, New York, 1954. -123-Preliminary Bibliography (cont'd). 7. Chamberlain, N.W., Social Responsibilities and Strikes Harper and Row, New Tork, 1953. 8. Cox, Archibald, Emergency Disputes and National Policy, Bernstein, Irving, Enarson, H.L., Fleming, R.W., (Eds.), Harper and Row, New York, 1955. 9. Congressional Record, Feb. 20, 1963, p. 2442. 10. -Drucker, Peter, The New Society: The Anatomy of Industrial Order, Harper and Row, New York, 1962, pp. 332-333. 11. Felner, William et a l . , The Problem of Rising Prices, Organization for European Economic Corporation, 1961, pp. 51-55. 12. Goble, George, "The Non-Stoppage Strike," Current Economic Comment, Vol. 20, Aug. 1950, pp. 3-12. 13. Habeler, Gottfried, "Wage Policy, Employment and Economic Stabilit y , " D. McC. Wright, ed., in The Impact of  the Union,-Harcourt, Brace & World Inc., New York, 1951, P. 39-. 14. Jensen, Vernon H., "The Process of Collective Bargaining and the Question of Obsolescence," Industrial and  Labour Relations Review, Vol. 16,..No. 4, July 1963. 15. Kirby, Sir Richard, "Some Comparisons between Compulsory Arbitration and-Collective Bargaining," Journal of  Industrial Relations, Vol. 7, No. 1, March, 1965. 16. Kleinsorge, Paul L., "The Public Interest as a Criterion in Settling Labour Disputes: The Australian Experience," Journal of Industrial Relations Vol. 6, No. 2, July 1964. 17". Kleinsorge, Paul L., "Singapore's Industrial Arbitration Court: Collective Bargaining with Compulsory Arbitration," Industrial and Labour Relations Review, Vol. 17, No. 4, July 1964. 18. McCalmont, D.B., "The Semi Strike," The Industrial and Labour Relations Review, Vol. . 15~, Jan., 1962. 19. Mabry, Bevars Dupre, "The Pure-Theory of Bargaining," Industrial and Labour Relations Review, Vol. 17,-No. 4, July, 1964. -124-Preliminary Bibliography (cont'd). 20. Marceau, LeRoy, Musgrave, R.A., "Strikes in Essential Industries: A Way Out," in Harvard Business Review, Vol. 27, May, 1949; p.-287. 21. Morton, Walter.A., "Trade Unionism, Fu l l Employment and Inflation," American Economic Review, vol. 740, pp. 13-19.-22. Northrup, H., and Bloom,-G., Government and Labour, Irwin Inc., 1963, pp. 273-478. 23. Oberer, Walter E., "Freedom and Public Policy: The Rule of Law and a 'Court of Economies' for Price-Wage Problems," in Industrial and Labour Relations Review, Vol. 16, No. 4, July, 1963. 24. Phelps, Orme W., "Compulsory Arbitration: Some Perpectives" in Industrial and Labour Relations Review, Vol. 1$, No... 1, Oct., 1964. 25. P h i l l i p s , A.W., "The Relationship between Unemployment and the Rate of-Change of Money Wage Rates in the U.K. ' 1861-1957," Economica, Nov. 1958, pp. 283-299. 26. Samuelson, Paul and Solow, Robert, "Problems of Achieving and Maintaining a Stable Price Level," American  Economic Review, Vol. 70, May i 9 6 0 , pp. 192-193. 27. Sosnick, Stephen H., "Non-Stoppage Strikes: A New Approach," in Industrial and Labour Relations Review Vol. IS, No. 1, Oct. 1964. 28. Steiber, Jack, "The President's Committee on Labour Manage-ment Policy," Industrial Relations, Berkeley University, Vol. 5, No. 2, Feb. 1966, pp. 1-19. 29. Stern, James L., "Declining U t i l i t y of the Strike," in Industrial and Labour Relations Review, Vol. 18, No. 1, Oct. 1964. 30. Stevens, Carl M., "Is Compulsory Arbitration Compatible with Collective Bargaining," Industrial Relations,- Berkeley University, Vol. 5, No. 2, Feb. 1966, p. 50. 1 

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