The Federal Mediation and Conciliation Service (FMCS), founded in 1947, is an independent agency of the United States government, and the nation's largest public agency for dispute resolution and conflict management, providing mediation services and related conflict prevention and resolution services in the private, public, and federal sectors. FMCS is tasked with mediating labor disputes around the country; it provides training and relationship development programs for management and unions as part of its role in promoting labor-management peace and cooperation. The Agency also provides mediation, conflict prevention, and conflict management services outside the labor context for federal agencies and the programs they operate. The FMCS headquarters is located in Washington, D.C., with other offices across the country.
FMCS was created by Congress as a neutral and independent government agency upon enactment of the Labor-Management Relations Act of 1947 (Taft–Hartley Act) and mandated to resolve industrial conflict and promote labor-management peace and cooperation, minimizing the impact of these disputes on the free flow of commerce. With its headquarters in Washington, D.C., and offices across the country, the agency has, for decades, been providing dispute resolution and conflict management services for employers and unions across industries and work activities in the private, public, and federal sectors. FMCS has also been involved in facilitating negotiated rulemaking processes and providing conflict prevention and conflict management for a wide range of agencies in the federal sector. The Agency also has an international program, partnering with more than 60 countries to provide consulting and training in labor dispute resolution and the design of conflict management systems.
Role under the Taft–Hartley Act
Former Federal Mediation and Conciliation Service headquarters in Washington, D.C. (now demolished)
The Federal Mediation and Conciliation Service was created as an independent agency of the federal government under the terms of the Labor Management Relations Act of 1947 (better known as the Taft–Hartley Act) to replace the United States Conciliation Service that previously operated within the Department of Labor.[2] Under Taft-Hartley, FMCS may offer its services "in any labor dispute in any industry affecting commerce, either upon its own motion or upon the request of one or more of the parties to the dispute, whenever in its judgment such dispute threatens to cause a substantial interruption of commerce."[3] By statute, FMCS receives advance notification any time a party to a collective bargaining agreement intends to terminate or modify the contract upon expiration. No modification or termination of a collective bargaining agreement is permitted unless the party wishing to modify or terminate notifies the other party at least 60 days prior to expiration and, within 30 days after notice to the other party, notifies FMCS and applicable state mediation agencies. For healthcare institutions, the notice times are extended to 90 and 60 days respectively.[4]
FMCS also has a large labor arbitration program. The Agency maintains a roster of approximately 1,000 private arbitrators who are vetted based on their background, experience, and training in issues arising under collective bargaining agreements. Typically, more than 10,000 requests for arbitrator panels are received by FMCS each year from parties to labor-management grievance disputes. Panels are randomly drawn from the FMCS Roster based on specified parameters, and the parties select an arbitrator who is then officially appointed by FMCS. Arbitrators must abide by the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes, to which FMCS is a signatory; the Code is incorporated by reference in the Agency's federal regulations.
Formation and first director
On August 7, 1947, President of the United StatesHarry S. Truman appointed Cyrus S. Ching as the first director of the FMCS. As Director of the FMCS, he received $12,000, placing the position at par with the National Labor Relations Board. Ching had been a member of the National War Labor Board until 1943, and had been an employee of the United States Rubber Company since 1919, serving as the firm's director of industrial and public relations in 1929. Ching would take office as of August 22, 1947, the date established in the Taft–Hartley Act for the creation of the FMCS as an independent agency, and would assume the role of the nation's top labor mediator from Edgar L. Warren, who had filled the senior mediation role for the U.S. Conciliation Service within the Labor Department.[5] After conferring with the President in August, Ching stated that he would assume his role as director in early September upon the completion of his duties at U.S.Rubber. Ching stated that his role was to settle labor disputes at the level when and where they develop.[6]
Ching was sworn into office on September 5, 1947, with an oath administered by Judge Henry White Edgerton at ceremonies also attended by Howard T. Colvin, who served as acting head from the August 22 creation of the FMCS, as well as other representatives of labor, industry and government.[7]
Directors
Directors of the Federal Mediation and Conciliation Service (with the date they took office listed and the President who made the appointment shown in parentheses), are as follows:[8]
Representatives of the FMCS played a role in negotiations between Bethlehem Shipbuilding Corporation and the Marine and Shipbuilding Workers in a strike that started in June 1947.[10]
In 1973, a Relationship-by-Objectives (RBO) program is developed for use in extreme cases of poor labor-management relations, when continued deterioration of the relationship could have drastic economic effect. The first RBO program is delivered in Maine on behalf of the Georgia-Pacific Company and Paperworkers Local 27.[11]
In 1975, FMCS officially entered a new arena: Alternative Dispute Resolution (ADR). Congress passes Public Law 93-531, directing the Service to mediate a 100-year old land dispute between the Hopi and Navajo Indian Tribes in Arizona.[11]
In 1978, Congress extended the FMCS charter to mediate disputes beyond the private sector to the Federal government.[11]
In November,1979, FMCS began mediating age discrimination complaints.[12]
In 1983, FMCS was the first agency to provide the service of negotiated rulemaking, or “reg-neg.” Conducted with the Federal Aviation Administration and Department of Transportation, regulations were developed to deal with flight and duty time of pilots.[11]
The institutionalization of Alternative Dispute Resolution (ADR) came with the passage of the ADR Act of 1990 which created the responsibility of every federal agency to look at its mission and to see what could be resolved through ADR techniques; also to establish an ADR coordinator, and to promote these efforts.FMCS testified and described the kind of work it did both for promoting ADR and negotiated rulemaking.[13]
In 1996, representatives from FMCS facilitated an ADR process in Minnesota regarding land use issues in the Boundary Waters Canoe Area Wilderness (BWCAW) and in Voyageurs National Park (VNP). In addition to agreements reached on the BWCAW, the mediation team also announced agreements on strategies to handle problems in the park having to do with public safety, improved Park Service consultation with local people, and other issues.[14]
In 1997, representatives from FMCS mediated negotiations between United Parcel Service and the International Brotherhood of Teamsters. It required three weeks of mediation to bring an end to the largest national strike in two decades.[15]
In June 2002, representatives from FMCS facilitated National Institute of Standards and Technology (NIST) discussions in New York City regarding the scope of the subsequent building and fire safety investigation following the Sept. 11, 2001 terrorist attacks. The meetings, which were conducted over the course of five sessions, featured more than 30 speakers, many of whom had family members and friends who were killed in the collapse of the World Trade Center towers. The impact of FMCS’ role was a successful discussion which provided important data for NIST's assessment and investigation.[16]
In December 2015, representatives from FMCS facilitated a regulatory negotiations process with the US Department of Energy involving industry, labor groups, and environmentalists to help produce the biggest energy savings standards in US history.[19]
In 2015, representatives of the FMCS mediated negotiations and agreement between the International Longshore and Warehouse Union (ILWU) and the Pacific Maritime Association covering operations at 29 U.S. ports on the Pacific coast. Subsequently, an extension to the contract was announced in with a July 1, 2022 expiration date.[20]
In February 2019, representatives of the FMCS mediated negotiations and agreement between the Denver Classroom Teachers Association and Denver Public School District, ending not only “the first teachers' strike in Denver in 25 years -- it concludes 15 months of sometimes acrimonious negotiations.” [21]
From January to April 2019, FMCS facilitated regulatory negotiations meetings with the Department of Education. The meetings proposed changes/new regulations for the Federal Student Aid programs authorized under Title IV of the Higher Education Act of 1965 as amended. These particular negotiations were on the topic of Accreditation and Innovation, including TEACH grant requirements, Distance Learning and Faith-Based Institutions. The meetings were live-streamed and open to the public with time at the end of each day for public comment.[22]
In April 2019, FMCS and the Equal Employment Opportunity Commission (EEOC) officially committed to work together to resolve federal workplace disputes by utilizing ADR as a means of efficiently reducing the backlog of federal sector charges, [23]
In June 2019, FMCS and the Federal Labor Relations Authority (Authority) announced a new commitment to work together to provide labor organizations and agencies with an opportunity to resolve negotiability appeals before they are considered by the Authority's Members for a decision.[24]
In August 2019, representatives of FMCS mediated negotiations between the State of Alaska and the Inlandboatmen's Union, ending a nine-day strike.[25]
In August 2020, representatives from Bath Iron Works and International Association of Machinists Local S6 signed an agreement with FMCS’ assistance to end the shipyard worker strike in Bath, Maine. The 63-day strike drew national attention against the backdrop of a global pandemic and in an election year.[26]
Shared Neutrals program
In 2019, FMCS began administrative management of the Federal Shared Neutrals Program, an interagency collaborative effort in support of alternative dispute resolution, formerly operated as Sharing Neutrals by the U.S. Department of Health and Human Services (HHS). FMCS administers the program in the National Capital Region, in coordination with participating federal agencies that contribute to, and make use of, a pool of collateral-duty federal employees to mediate cases outside their own agency. In many regions of the country, Federal Executive Boards (FEBs) have created individual programs modeled after the DC-based program but run through each FEB. These programs continue separate operations, except for those who may wish to have FMCS administer their regional Shared Neutrals program.
Annually, the Shared Neutrals Program provides workplace mediation services for hundreds of cases across more than 50 participating agencies and sub-agencies, supported by a pool of more than 250 collateral-duty federal employees who are dedicated to assisting in the resolution of workplace disputes.[27]
Awards and accolades
FMCS received the top ranking among small Federal agencies as a Best Place to Work in the Federal Government, according to the 2018 rankings by the nonprofit Partnership for Public Service and Boston Consulting Group.
With rankings first being held in 2003, 2018 marks the fifth time FMCS was selected for the top spot, having also earned this distinction in 2005, 2007, 2015, and in 2017. Additionally, the Agency has consistently ranked in the top 4 since the “small agency” category rankings were first included in 2007. Data points from the FEVS revealed that FMCS's 2018 employee engagement score is 87.2 out of 100, which placed FMCS at 1 out of 29 small agencies. By 2022, the score had dropped to 63.6 out of 100, placing FMCS as the 24th out of 30 small agencies.[28]
National Labor-Management Conference (NLMC)
FMCS hosts a biennial conference to promote better relationship and dispute management as a proactive means for preventing conflict that can impair organizational success. Historically, the NLMC attracts over 1000 industrial relations professionals, representatives of labor and management, academics, arbitrators and legal professionals across the labor relations and employment spectrum. The conference was most recently held virtually in 2020 due to the COVID-19 pandemic.[29] The next conference, “Challenges and Choices at Work in a Time of Heightened Worker Activism”, is scheduled for June 26-30, 2024.[30]
2013 Washington Examiner Series
In 2013, The Washington Examiner alleged in a series of articles that employees at the agency had made improper purchases such as auto leases and spouses' cellular phones using government credit cards.[31]
In response, the FMCS issued the following statement: "These items which the Examiner is inquiring about appear to have been the subject of a now-settled employment dispute involving a disgruntled FMCS employee. These purchasing issues were addressed in the settlement, but must remain confidential under federal personnel rules, as noted, in the absence of a release from the employee.
"When FMCS became aware of this employee’s concerns about the Agency’s procurement practices, we took immediate actions. These actions included taking steps to ensure that the Agency’s internal processes meet federal regulations. Additionally, we obtained a review by an outside, independent authority regarding FMCS procurements made over a period of years. We conducted a prompt and thorough investigation and a review of our own internal processes. With the settlement of the employment dispute, the conclusion of our own investigation and reviews by outside authorities, the allegations were dropped and outside authorities indicated they would take no further action."[31]
Subsequently, Congressional committee staff in both the House and Senate looked into the allegations that prompted the articles in the Examiner and concluded their inquiries without making any findings against the agency or its employees.
Arbitration, in the context of the law of the United States, is a form of alternative dispute resolution. Specifically, arbitration is an alternative to litigation through which the parties to a dispute agree to submit their respective evidence and legal arguments to a third party for resolution. In practice, arbitration is generally used as a substitute for litigation. In some contexts, an arbitrator has been described as an umpire.
Dispute resolution or dispute settlement is the process of resolving disputes between parties. The term dispute resolution is sometimes used interchangeably with conflict resolution.
Mediation is a structured, interactive process where an impartial third party neutrally assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. All participants in mediation are encouraged to actively participate in the process. Mediation is a "party-centered" process in that it is focused primarily upon the needs, rights, and interests of the parties. The mediator uses a wide variety of techniques to guide the process in a constructive direction and to help the parties find their optimal solution. A mediator is facilitative in that they manage the interaction between parties and facilitates open communication. Mediation is also evaluative in that the mediator analyzes issues and relevant norms ("reality-testing"), while refraining from providing prescriptive advice to the parties. Due to its voluntary nature, a person cannot be compelled to use mediation to resolve their dispute. However, a suggestion from the Court may be difficult to resist.
The Labor Management Relations Act of 1947, better known as the Taft–Hartley Act, is a United States federal law that restricts the activities and power of labor unions. It was enacted by the 80th United States Congress over the veto of President Harry S. Truman, becoming law on June 23, 1947.
William Julian Usery Jr. was an American labor union activist and government appointee who served as United States secretary of labor in the Ford administration.
Online dispute resolution (ODR) is a form of dispute resolution which uses technology to facilitate the resolution of disputes between parties. It primarily involves negotiation, mediation or arbitration, or a combination of all three. In this respect it is often seen as being the online equivalent of alternative dispute resolution (ADR). However, ODR can also augment these traditional means of resolving disputes by applying innovative techniques and online technologies to the process.
The National Mediation Board (NMB) is an independent agency of the United States government that coordinates labor-management relations within the U.S. railroads and airlines industries.
The Federal Labor Relations Authority (FLRA) is an independent agency of the United States government that governs labor relations between the federal government and its employees.
George W. Taylor was a professor of industrial relations at the Wharton School at the University of Pennsylvania, and is credited with founding the academic field of study known as industrial relations. He served in several capacities in the federal government, most notably as a mediator and arbitrator. During his career, Taylor settled more than 2,000 strikes.
Cyrus S. Ching was a Canadian-American who became an American industrialist, federal civil servant, and noted labor union mediator. He was the first director of the Federal Mediation and Conciliation Service (FMCS) and the Wage Stabilization Board.
Frank E. A. Sander was an American professor emeritus and associate dean of Harvard Law School. He pioneered the field of alternative dispute resolution and is widely credited with being a father of the field in the United States as a result of his paper, The Varieties of Dispute Processing, presented at the Pound Conference in 1976 in Minneapolis, Minnesota. Sander's book, Dispute Resolution: Negotiation, Mediation, and Other Processes, which he coauthored with Stephen B. Goldberg, Nancy H. Rogers, and Sarah Rudolph Cole, is used in law schools throughout the United States.
Alternative dispute resolution (ADR), or external dispute resolution (EDR), typically denotes a wide range of dispute resolution processes and techniques that parties can use to settle disputes with the help of a third party. They are used for disagreeing parties who cannot come to an agreement short of litigation. However, ADR is also increasingly being adopted as a tool to help settle disputes within the court system.
Arnold M. Zack has served as an arbitrator and mediator of labor management disputes since 1957. Born on October 7, 1931, in Lynn Massachusetts, he is a graduate of Tufts College, Yale Law School and the Harvard University Graduate School of Public Administration. He was a Fulbright Scholar, a Wertheim Fellow, President of the National Academy of Arbitrators and member of the College of Labor and Employment Lawyers. He served as a judge of the Asian Development Bank Administrative Tribunal and was President of the Tribunal since 2010. He also served and taught as senior research associate at the Labor and Worklife Program of Harvard Law School and the Harvard Trade Union Program since 1985.
See Wayne Horvitz for the musician.
William Edward Simkin was an American labor mediator and private arbitrator who worked on resolving strikes in major nationwide industries as the longest-serving head of the Federal Mediation and Conciliation Service, the nation's top labor mediator.
Wilma B. Liebman is an American lawyer and civil servant who is best known for serving as a member of the National Labor Relations Board (NLRB). She was designated chair of the board by President Barack Obama on January 20, 2009, becoming only the second woman to lead the NLRB.
Theodore Woodrow Kheel was an American attorney and labor mediator who played a key role in reaching resolutions of long-simmering labor disputes between managements and unions and resulting strikes in New York City and elsewhere in the United States, including the 114-day-long 1962–63 New York City newspaper strike that crippled the city's traditional media.
The National Defense Mediation Board (NDMB) was a United States federal agency established by Executive Order 8716 on March 19, 1941, that settled disputes between labor and management during the prewar defense period. The executive order established the NDMB as a tripartite agency of eleven representatives, four each from labor and industry and three from the public. The order vested in the agency the power to “exert every possible effort to assure that all work necessary for national defense shall proceed without interruption and with all possible speed.” The Board could use either mediation or voluntary arbitration to resolve disputes between management and labor in defense industries. If these methods failed, the Board was empowered to investigate controversies, conduct fact-finding, and formulate recommendations. During the ten months of its existence, the Board received a total of 118 cases of labor disputes. Since strikes were usually in progress when the Board received its cases, the NDMB's basic policy was to persuade unions to call off strikes in return for wage retroactivity and a promise of a hearing. This was successful in most cases, but, in the rare instances when parties did not heed Board recommendations, the Board forwarded matters to the White House. The NDMB ultimately collapsed because of a dispute involving the “captive mines,” during which the Board refused to grant union shop to the United Mine Workers (UMW). On January 12, 1942, the National Defense Mediation Board was superseded by the National War Labor Board.
Jean Trepp McKelvey was an American economist specialising in arbitration and industrial relations. McKelvey was an esteemed tenure professor at Sarah Lawrence College (1932–1945) and Cornell University (1946–1976) where at the latter she was a founding faculty member for the School of Industrial and Labor Relations, developing the curriculum and teaching five courses including arbitration, labor law and labor practices. Coined the "mother of arbitration", in 1947 McKelvey was the first woman admitted to the National Academy of Arbitrators, in 1970 became its first woman president and established an arbitration training program for women and minorities. In addition to her successful published research career, McKelvey served on the New York State Board of Mediation (1955–1966) and Federal Services Impasses Panel (1979–1990) and received numerous accolades including the Federal Mediation and Conciliation Service's Special Award for Distinguished Service in Labor Management Relations (1973) and Arbitrator of the Year Award from the American Arbitration Association (1983).
The United States Conciliation Service was an agency within the U.S. Department of Labor that existed from 1913 until 1947 whose role was to bring labor disputes to a settlement through mediation.
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