FMCS mediators are called Commissioner because of the language in the Act that created the U.S Department of Labor in 1913.

That Act states in part:

“…. (T)he Secretary of Labor shall have the power to act as a mediator and to appoint commissioners of conciliation in labor disputes whenever in his judgement the interests of industrial peace may require it to be done …”

Therefore, from the beginning of the United States Conciliation Service (USCS) in the Department of Labor, staff members assigned to assist labor and management in resolving their collective bargaining disputes were called Commissioners of Conciliation.

In 1947 when FMCS replaced the USCS, the first Director of FMCS, Cyrus Ching, considered changing that title because he thought the title Commissioner would be off-putting for labor and management representatives, and therefore unhelpful in resolving labor management disputes.

When informed of the historic basis of the title, Ching did not attempt to make that change. However, he did change the title from conciliator to mediator since the latter had gained popular usage by 1947.

Director Ching presenting the 1951 version of the FMCS credential to Commissioner # 277 Bill Rose who was assigned to the Tampa, FL, Field Office.

While performing mediation, FMCS mediators will occasionally be addressed by the parties as Commissioner. But more often, they will be addressed simply as mediator.

Jim Elmore, a newly hired mediator in 1964, told fellow new mediator class members, including me, that when he proudly told his Irish father his new job title, his father responded: “That sounds like you’re the guy who runs the city water and sewer department.”

The photo above shows a wallet that mediators use for their official credentials. These badges were first issued in the year 2000 by Director Barnes and designed by Special Assistant Giacolone.  All active mediators at that time were issued this credential.  The response to the badge was mixed at that time but has become a tradition that is much treasured by Commissioners. Many retired mediators requested and were issued a badge with their number at cost.   In 2017 a decision by the place holder leaders of the Agency required all retiring mediators to return the badge.  That decision was not well received and eventually overturned under Director Giacolone’s tenure. Upon retirement all mediators receive a framed certificate of retirement which includes their Commissioner Badge.

Commissioner Barry Brown # 936 receives his retirement certificate with the incorporated badge.

Note the word Commissioner and the number in the center. Each mediator from the beginning was assigned a number in sequence. When Jerry Barrett was hired in 1965, he was assigned the number 489. The number 723 was hired in 1970s and was issued to Eileen Hoffman.  Currently the badges are in the 1200’s.

In 1971, William E. Simkin wrote Mediation and the Dynamics of Collective Bargaining. Published by the Bureau of National Affairs, it included: 410 pages, 16 chapters, 6 appendixes, and an index. Simkin wrote his book after being the Director of FMCS for almost eight years, the longest serving FMCS Director. His tenure in the 1960s oversaw the golden years of collective bargaining in the U.S. He was also a nationally known arbitrator for many years, and President of the National Academy of Arbitrators. While he wrote his book, he was on the Harvard Business School faculty. The Foreword written by George Taylor who Simkin referred to as his mentor when he was a student and a young arbitrator. As a life long Quaker, Simkin appeared to all as a calm, peace loving man.

In 1986, Simkin wrote a second edition with the same title: Mediation and the Dynamics of Collective Bargaining. For this edition, his coauthor was nationally known FMCS mediator Nicholas A. Fidandis. This volume included 300 pages, 8 parts, 13 chapters, and an addendum on non-labor mediation, an expansion of mediation use in other conflict arenas.

Also in 1971, Walter A. Maggiolo wrote Techniques of Mediation in Labor Disputes. This volume included 192 pages, 11 chapters, a 6 page bibliography, eleven appendixes, and a preface by Secretary of Labor J.D.Hodgson, with this interesting quote: “The task of the mediator has seldom been an enviable one. Mercutio, unable to achieve useful accommodation between the warring Montagues and Capulets, could only exclaim in exasperation: ‘A plague on both your houses.” This book focuses primarily on mediation and arbitration. Maggiolo’s long mediation career with FMCS included General Counsel, Special Assistant to Cyrus Ching, and Director of Office of Mediation in the National Office. The latter involved a team of mediators who handled major disputes throughout the U.S. They were often referred to as Paratroopers.

In 1985, Walter A. Maggiolo wrote Techniques of Mediation in Labor Disputes.

I helped Walter by writing seven chapters and a 15 page bibliography. I also edited other chapters, selected and prepared 116 pages of Appendixes. This edition is greatly expanded to 458 pages. Like the first edition, this one was published by Oceana Publications, Inc. Dobbs Ferry, NY

At the 1963 annual ALMA conference, an agreement was reached to develop a code of conduct for mediators. William Simkin, the newly appointed Director of FMCS, was a driving force behind this imitative. As a long time arbitrator, Simkin saw the need for the mediation profession to have a code of conduct similar to the arbitration profession. The stated reason the conference decided to develop a code of conduct was to insure mediator professional behavior toward the disputing parties, the public and among mediators.

The liaison committee appointed at the conference to develop a draft code held a series of meetings. At the September 1964 annual conference, liaison committee’s a draft code was presented, discussed, and adopted. The code was put into immediate effect with this title: “Code of Professional Conduct for Labor Mediators.”

The Code described these five mediator responsibilities:

1. Responsibility of the Mediator to the Parties.
2. Responsibility of the Mediator Toward Other Mediators.
3. Responsibility of the Mediator Toward Their Agency and other Professions.
4. Responsibility of the Mediator Toward the Public.
5. Responsibility of the Mediator Toward the Mediation Process.

Since FMCS is also involved in maintaining a roster of private arbitrators for the use of labor and management, FMCS has an interest in a code of conduct for arbitrators. The American Arbitration Association (AAA) also maintains an arbitration roster. While FMCS and AAA might be viewed as competitors, they also have reason to cooperate in the interest of the labor and management they both serve. A third organization in this field is an organization composed of the arbitrators, which is called the National Association of Arbitrators (NAA).

These three organizations have jointly developed a code for arbitrators.

Periodically, both the mediator and arbitrator codes have been updated and reissued by the sponsoring organizations.

In recent years, several organizations of private sector mediators and other ADR practitioners have created ethical guidance documents. For example: Ombudsman Association, ADR Institute of Canada, and JAMS.

The Taft-Hartley Act of 1947 removed labor-management mediation from the Department of Labor (DoL) and placed it in the newly created Federal Mediation and Conciliation Service (FMCS). Not everyone favored the new arrangement. Labor Secretary Lewis Schwellerbach urged Congress to return the mediation function to DoL. In Congressional testimony, the first FMCS Director Cyrus Ching favored the mediation function being in an independent agency such as FMCS. President Truman’s 1948 Democratic Platform favored the DoL position.

As the first FMCS Director, Ching took over the offices and staff of DoL’s United States Conciliation Service (USCS), which included the office of the last Director of USCS. That office was located next to the Secretary of Labor on mahogany row in DoL headquarters. FMCS Director Whitney McCoy (7-53 to 11-54) found that location uncomfortable and inappropriate for an independent agency head. He also objected to being told to attend the Secretary’s staff meetings with the Assistant Secretaries of Labor.

This antidote illustrates the problem: All offices on mahogany row had large outer office for staff. When the Secretary wanted to talk to the Director face to face, he had to leave his office, walk through his outer office, down the hallway, through the outer office and into the Director’s office. Bothered by this inconvenience when he wanted an update on a labor dispute, the Secretary ordered that a door be made in the common wall between their offices so the Director would be only “a holler away” from the Secretary.

When Director McCoy’s problem reached the White House, McCoy was asked to resign, and the Secretary selected a more compatible Director, Joseph Finnegan, who had been the Secretary’s lawyer in New York City when they were both in the private sector.

Such a problem would not have occurred for Director Ching since at the White House was Assistant to the President John Steelman, who had been Director of USCS, and had urged President Truman to appoint Ching FMCS Director.

But one White House problem that might have distressed Ching was Steelman willingness, actually eagerness, to mediate major national disputes rather than allowing Ching to handle them. This upstaging of FMCS occurred with other Labor Secretaries and Assistant Secretaries who wanted to mediate big headline grabbing disputes. That was the case with Bill Usery as Assistant Secretary Labor for Labor-Management Relations. He effectively put a stop to that practice when he became FMCS Director, but when he later became Secretary of Labor, he likely reconsidered that.

In this photo, FMCS mediator Gil Seldon is caucusing with the union negotiating committee in the men’s room. Notice the urinals on the right. This caucus may have been arranged earlier or it might simply be opportunistic on the mediator’s part.

In the photo, the mediator is wearing a white shirt and tie. The men’s hats suggest this caucus occurred in the 1950s, and meeting in men’s room implies that there there no women on the union committee. For some viewers, the window dividers might suggest they are meeting in a church. The caucus occurred in fact in the main Federal Building in Cleveland, Ohio.

1. Three men standing.

The man in the center is the famous Jimmy Hoffa, the leader of the International Brotherhood of Teamsters (IBT). The other two are FMCS mediators. On the left, is Walter Maggiolo, Director of Office of Mediation. The other is C.K. Call, the Regional Director of FMCS in Chicago. Jimmy Hoffa’s son now heads the IBT.

2. Three men walking toward the camera.

These three top FMCS mediators are smiling for a good reason. They have just existed a conference room where they achieve a settlement of a labor-management dispute. They are from left to right: Gil Seldon, Assistance Director the Office of Mediation, Walter Maggiolo, Director Office of Mediation, and Bill Simkin.  FMCS Director Bill Simkin was appointed FMCS Director by President John Kennedy in 1961. He served until 1969, making him the longest serving FMCS Director before or since.

Director Simkin hired me in April 1964, and Regional Director C.K. Call was my boss during the four years I mediated in Milwaukee (1965 to 1969). In 1985, I helped Walter Maggiolo write the second edition of his book Techniques of Mediation in Labor Disputes (1985). Bill Simkin wrote Mediation and the Dynamics of Collective Bargaining (1971).