HD 5504- N5 r53 ^:'xf^ g h a. -i r.>H £ a: < P O in K'«^ kfc'? V^SL^. mmsn c; F53 -\ (Qarnell UniaerHttg Slibratg It^ara. ^tm ^mk Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030079663 USE OF FEDERAL POWER IN SETTLEMENT OF RAILWAY LABOR DISPUTES A THESIS PRESENTED TO THE FACULTY OF THE GRADUATE SCHOOL OF CORNELL UNIVERSITY FOR THE DEGREE cJf DOCTOR OF PHILOSOPHY BY CLYDE OLIN FISHER [Printed as Bulletin of the United States Bureau of Labor Statistics, No. 303, March, 1922] H 4 CONTENTS. Page. Chapter VI. — Period of war administration of railroads ^^In Wage determination ' 69-72 Relations with organized labor 72-74 Railway adjustment boards ''^^i ^^ The division of labor 74, 75 Chapter VII. — Transportation act of 1920: Esch-Cummins law 76-97 Congressional consideration from passage of Adamson law to enact- ment of law of 1920 76-78 Passage of Esch-Cummins law 78-86 The House bill 78-80 The Senate bill 80-82 United States Commissioner of Mediation and Conciliation on compulsory arbitration 82, 83 The conference bill 83-85 Act of 1920 and the Newlands law 85, 86 Operation of Esch-Cummins law 86-9®/ Esch-Cummins law versus earlier laws for adjustment of railway . labor disputes ' 96, 97 Appendix A. — Constitutional issues involved in legislation to settle rail- way labor troubles 98-102 Appendix B. — Text of acts regulating railway labor disputes 103-117 Act of October 1, 1888 103-105 Act of June 1, 1898 (Erdman Act) 105,106 Act of July 15, 1913 (Newlands Act) 108-112 Act of September 3, 5, 1916 (Adamson law) 112,113 Transportation act, 1920 (Esch-Cummins law) 113-117 Bibliography 118-121 BULLETIN OF THE U. S. BUREAU OF LABOR STATISTICS. NO. 303 WASHINGTON march, 1922 USE OF FEDERAL POWER IN SETTLEMENT OF RAILWAY LABOR DISPUTES. INTRODUCTION. The transportation act of 1920 has directed attention again to a serious problem in connection with the railroads of the country, the problem of the settlement of railway labor disputes. The observer of contemporary events during the last three decades has seen a de- cided change in the attitude of the public toward the organization and the operation of what are called " public utilities." In no field has this development been more significant than in that of the rail- roads, and especially in the settlement of labor disputes thereon. A condition of affairs that was largely academic 30 years ago has now become one of the most momentous of questions. The general public perhaps realized this difficulty more keenly than ever before in the summer of 1916, when the railroad brotherhoods and the railroads reached such a point in their controversy as to cause grave concern on the part of the public at large — the controversy culminating in the passage of the so-called Adamson law. Instead of a typically laissez faire point of view with reference to this matter, a decided change of opinion has developed. An interest- ing illustration of the present opinion is to be found in the award of the arbitration board that settled the controversy between the en- gineers and the railroads in the eastern section of the United States in 1912. The report contained this, then radical, statement : A strike in the Army or Navy is mutiny and universally punished as such. The same principle Is applied to seamen because of the public necessity involved. A strike among postal clerks, as among the teachers of our public schools, would be unthinkable. In all these cases the employment, to borrow a legal phrase, is afEected with a public use, and thus of necessity qualifies the right of free con- certed action which exists in private employment.' This study will consist of an examination of the general methods, so far as the Federal Government is concerned, that have been adopted for the settlement of railway labor disputes. The experience of the past will be examined in sortie detail. Briefly stated, that experience has found legislative expression in five statutes. The first of these > Report of the Board of Arbitration in the Matter of Controversy Between the Eastern Kallroads and the Brotherhood of Locomotive Engineers, p. 108. 6 6 USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES. was enacted October 1, 1888.= A more important law, from the point of view of its actual operation, was the so-called Erdman Act, passed June 1, 1898.^ Then, in 1913, what was in reality an amendment to and an enlargement of the Erdman law was passed, the law com- monly known as the Newlands law * In 1916, as a result of the largest concerted movement in the history of the railway brotherhoods, came the Adamson law.= - Finally, in 1920, Congress enacted the trans- portation act of 1920, the Esch-Cummins law, a law changing radi- cally the machinery for the adjustment of railway labor contro- versies.'^ This last law was built largely upon the experience of the Government during the war administration of the railroads. This study will treat in some detail the events leading up to the passage of these respective laws, the operation of the laws, -and the attitude of the various interests affected thereby. A brief chapter will also be devoted to the period of the war administration of the railroads — the period ending with the enactment of the transporta- tion act of 1920. It should be borne in mind that the situation dealt with is not one affecting labor in general, but only a special kind of labor in a particular field. It is readily conceded that it would not be desir- able, or even possible, to apply to all classes of labor the plan which would best meet the ends of justice and of expediency in the field of railway labor. No attempt is made here to present or to defend a solution for all the ills of society that may come as a result of the maladjustment of the factions of capital and labor. Eailway labor, and railway labor alone, is the problem under examination. Nor is it proposed to suggest that any device, however well planned and how- ever well administered, will usher in a Utopian railway labor com- monwealth. It is believed, though, that some plans give promise of better results than do others. Doubtless there are objections to any method mentioned. But this holds true with reference to almost any proposed remedy for any condition that needs remedying. All that is attempted here is an examination of the several solutions that have been proposed, a study of the causes leading to each proposal, and the reactions thereto of the classes of people affected, i. e., an examina- tion in the light of the experience in the United States. Incidentally, the critical examination of the methods of Govern- ment intervention will serve the purpose of bringing out the strong points that can be urged in favor of the solution attempted in the transportation act of 1920. A brief discussion, by naeans of an examination of some of the leading cases, of the constitutional issues involved in Government action for the prevention and the settlement of railway labor dis- putes appears in Appendix A. Copies of the act of 1888, of the Erdman Act, of the Newlands law of the Adamson law, and of that section of the transportation act of 1920 in which provision is made for the adjustment of railway labor controversies are set forth in Appendix B. 2 25 Stat., 50th Cong., ch. 1063. "30 Stat., 55th Cong., ch. 370. »38 Stat., 63d Cong., ch. 6. « 39 Stat., 64th Cong., Ft. I, ch. 436. e 41 Stat., 66th Cong., 2a sess., ch. 91. CHAPTER I.— EARLY PERIOD: LAW OF 1888. ATTITUDE OF LABOR AND RAILWAY INTERESTS. Although the first act of the Federal Government for the settle- ment of railway-labor disputes was not passed until 1888, media- tions and arbitration had for a number of years attracted the atten- tion and challenged the thought of men interested in such matters, heveral attempts had been made to pass a law applying to such con- troversies. But the labor problem at that time was relatively simple and the disturbances were relatively infrequent as compared with those that have come in recent yeara. Therefore the issue was a less pressing one then than it has later come to be. It is interesting to note that the early attitude of the railway- labor organizations was quite different from what it has been within the last few years. Most of the labor interests then favored the set- tlement of disputes by arbitration; some of them even went so far as to advocate compulsory arbitration. Charles Wilson, grand chief of the Brotherhood of Locomotive Engineers, as early as 1873, said that his organization had always favored arbitration.^ Eugene V. Debs, editor of the . Firemen's Magazine, expressed himself as op- posed to strikes : We have said we are opposed to strikes as a means of settling controverted labor questions. We are opposed to strikes primarily, because we are satiafled they do not promote the welfare of the laboring man. We are persuaded from readings, observation, and experience that there is a better way out than to "strike" out.' The Brotherhood of Locomotive Engineers' Journal, for February, 1886, printed with evident approval an article by an American in- ventor advocating the introduction of a plan for the amicable settle- ment of labor disputes — a plan binding alike upon employer and em- ployee. The disorganization of industry occasioned by the calling of strikes was given consideration. It should be said, however, that in the main the labor interests favored voluntary arbitration only. At no time in the history of organized labor has there been a majority in favor of compulsory arbitration. But the railway-labor organizations in the early days were comparatively weak. They realized the inequality of any con- flict between themselves and the managers. Therefore the employees welcomed the solution of their difficulties by any agency through which they believed they, had nothing to lose and a possibility of gain. An examination of the evolution of the organizations and of 'The Railroad Gazette, Vol. V, pp. 156, 157. ' Brotherhood of Locomotive Firemen and Enginemen's Magazine, Vol. VIII, p. 279 (May, 1884). 8 USE or FEDEEAL POWER IN EAILWAY LABOR DISPUTES. their attitude toward the successive forms of arbitration will show that they have modified from time to time their attitude toward Gov- ernment intervention and toward the form which arbitration for the settlement of their controversies should take. Along with the m^i'- velous growth of the brotherhoods there has come such a degree of power that they are reluctant to forego the use of collective action, their most effective weapon. But the labor element does not hold a unique position because of having changed its views on arbitration. During the period prior to the passage of the interstate commerce act in 1887 the railroads wanted no interference on the part of the Government. Their ob- jection was not limited to intervention for the purpose of adjusting controversies with the men ; they regarded with disfavor any Gov- ernment activity that would tend to interfere with the fjeedom of action of the managers. One illustration of this position in the year 1874 will suffice to make the point clear. Representative Mc- Crary of Iowa suggested in Congress that a commission be ap- pointed for the purpose of regulating the railroads. He defended the validity of his proposal on the basis of the commerce clause of the Constitution. The Railroad Gazette, which in the main repre- sented the point of view of the railroads, said : If transportation is commerce, it certainly is not all of commerce. Those who buy and sell are engaged in commerce as certainly as those who carry the ma- terials bought and sold ; and if, under this constitutional provision, Congress has the right to determine the prices at which the work shall be done in the case of the latter, so it must have in the case of the former ; and the profits of merchants on goods bought in one State and sold in another are subject to the decision of Congress at Washington." The writer of the above editorial did not have in mind the settle- ment of the labor problem. Yet the theory of noninterference, if subscribed to as to the regulation of rates, would inevitably imply noninterference in the regulation of the labor end of the business. But the Gazette, in theory at least, favored voluntary arbitration; or, rather, it expressed the belief that there was no reason why the opposing interests should not reach an amicable adjustment of what- ever differences might arise between them.^" The Gazette was quite vigorous in its opposition to compulsory arbitration. When a bill was introduced in Congress for the purpose of securing compulsory arbitration, the Gazette, in its issue of April 2, 1886, said : A bill has been introduced in Congress to prevent it [a strike] by Government arbitration, the results of which the railroads and their employees shall be forced to accept. Aside from other objections, the fatal one to this is that the men can not be forced to accept any terms they do not like, and it is beared that there would be no end of strikes or appeals to arbitration if the men stood a chance of gaining by them and no chance of losing." PRELIMINARY CONGRESSIONAL CONSIDERATION AND VTP-wo ON PROPOSALS. viiiwa As early as 1882 Congress began the consideration of methods and devices for the settlement of railway labor disputes. On June 15 1882, Senator Morgan of Alabama offered a resolution calling for "The Railroad Gazette, Vol. VI, p. 113 (Mar. 28, 1874). ""Idem, Vol. IX, pp. 74, 75 (Feb. 16, 1877). " Idem, Vol. XVIII, p. 232. EARLY period: LAW OF 1888. ' 9 the appointmeilt of a committee to investigate and to propose a so- lution for railway labor troubles.^^ The Senators speaking on the resolution agreed that it was an im- portant one and that it should have congressional consideration. They disagreed, however, as to which of the Senate committees should have the resolution referred to it. It was finally agreed to refer it to the Committee on Education and Labor. Mr. Morgan, in advocating the resolution, said : For my part, I confess that I am ignorant of this great industrial agitation in the land, and I am apprehensive as to its results, and I think it is the duty of Congress, in the protection of all the industrial classes of this country, as well as in the protection of the capitalists, to look into this question through one of its select committees." Mr. Morgan mentioned the railrokd strike of March 1, 1882, on a railroad at Omaha, as the kind of trouble to which he made reference. On June 28, Senator Blair, of New Hampshire, for the Committee on Education and Labor, reported a substitute for the Morgan reso- lution.^* In effect, this resolution was that a committee be appointed to investigate the causes of labor troubles and to report remedies therefor. The resolution passed the Senate. Again, on February 26, 1883, at the request of Mr. Blair, the committee was authorized to continue its investigations.^^ While it would be inadvisable to discuss in detail all the bills and resolutions that Congress has had under consideration as measures for meeting the railroad labor problem, attention is called to this one as an illustration of the early recognition by Congress that the railway labor problem was one which should be solved by the Federal Government. Congress seems to have neglected further consideration of the matter until the spring of 1886. This neglect was perhaps due to the fact that in this period railway labor difficulties were not of such importance as to demand congressional action. President Cleveland is commonly believed to have started the con- gressional consideration of railway labor legislation in 1886. How- ever, the Congressional Eecord shows that several bills of this kind were introduced in the House of Representatives in March, whereas the President's recommendation was made in April.^" One of the Taills (H. E. 7479) reported favorably by the Committee on Labor ^^ provided that in any controversy between the railroads and their employees which threatened to interfere with interstate commerce, either party to the dispute might make a written request for arbi- tration. Should the other party accept the proposed arbitration each side was to appoint one representative, and these two were to select a third member of the arbitration board. A great deal of discussion was precipitated as a result of the intro- duction of this measure b.y the committee. Some of the Members of Congress approved the proposal, while others of them pronounced it as so much " buncombe." Its provisions were too stringent to meet with the approval of some of the Members and too lenient to win the indorsement of others. Representative Glover, of Missouri, presented "Congressional Record, Vol. XIII, p. 4924. "Idem, Vol. XIII, p. 5161 (June 21, 1882). "Idem, p. 5430. Ibidem, Vol. XIV, p. 3266. "49th Cong., H. E. 7020; H. E. 7081; H. K 7479. ' "Congressional Record, Vol. XVII, p. 2959 (Mar. 31, 1886). 10 USE OP FEDERAL, POWER IN RAILWAY LABOR DISPUTES. a substitute bill, in which he gave either party the right tO' demand arbitration, the award of which was to be binding upon both. Failure to comply with the decision of the arbitrators was to be punished by fine or imprisonment.^^ Representative Anderson, of Kansas, presented another substituted^ He would have the Presi- dent of the United States appoint a permanent commission of arbi- tration consisting of five meriibers to examine, upon its own initia- tive, into a railway labor controversy and to suggest a settlement to the contending parties. It could appeal to a court for an injunction to enforce the acceptance of its award. Perhaps Eepresentative For an, of Ohio, summarized as well as any Member of the House the feeling of opposition to these bills : I am opposed to all arbitration for tlie adjustment of industrial controversies between labor and capital which is based upon legislative enactment, whether it be voluntary or compulsory. Hence I am opposed to the substitute offered by the gentleman from Missouri [Mr. Glover] and I am opposed to the bill of the gentleman from Kansas [Mr. Anderson] and the bill introduced yesterday by the gentleman from Missouri [Mr. O'Neil]. All these bills, unlike the meas- ure now under consideration by the House, favor and provide for compulsory arbitration. Without the spirit of mutual conciliation, the disinterested desire to amicably adjust differences of opinion, arbitration is a nullity and must necessarily fail. * * * I am not prepared to give the judges of the courts of the United States the right to imprison men for contempt, to coerce by the military arm of the Gov- ernment men who are honestly contending for a principle they believe to be right. Compulsory arbitration would so shackle labor that its freedom and its right to organize for self-protection would eventually disappear.^" The excerpt given above is representative of the feeling expressed by many of the Congressmen in reference to the proposed measures. Other speakers insisted that arbitration was the only way in which the trouble could be settled. And the great majority wanted this arbitration to be voluntary. Some, however, persisted in upholding compulsory arbitration. Representative McKinley, who later became President of the United States, spoke in favor of the adoption of the bill introduced by the committee. He dwelt upon the efficacy of arbitration as a means for the adjustment of difficulties and for the promotion of the right relationships in the industrial field.^^ Consideration of this legislation was not confined to the halls of Congress. Several Congressmen adverted to the public interest in railway labor strikes. Following is an excerpt from a speech by Mr. Glover : Now, I do not speak either in the interest of capital or in the interest of labor. There is besides these two the great body of people whose interests are supreme, and the cry coming from the third party is rising loud enough to be heard in tliis House. That third party is the public.'" Some leading newspapers published editorials calling attention to the public nature of the railroads and insisting that neither party to a dispute should be allowed to subject the jjublic to the incon- venience incident to the calling of strikes on the railroads.^^ " Congressional Record, Vol. XVII, pp.- 2960, 2961 (Mar. 31, 1886) '"Mem, pp. 2980, 2981 (Mar. 31, 1888). ™Idem, p. 2962 (Mar. 31, 1886). 21 Idem, pp. 3038, 3039 (Apr. 2, 1886). == Idem, p. 2970 (Mar. 31, 1886). ^The Chicago Tribune said: "When the parties charged with the duties of oneroH and Iseeping open the railroad highways of the country enter Into combination'! tn, i these avenues of traffic, derange business, and espose the whole American peonl'^ t^ EARLY period: IAW OF 1888. 11 Strange as it may seem, the organization of the Knights of Labor was in favor of compulsory arbitration at the period under observa- tion. The preamble to the constitution of the order demanded " The enactment of laws providing for arbitration between employers and employed and to enforce the decision of the arbitrators."^* Several of the local chapters of the organization petitioned Congress for the passage of arbitration laws.^^ Commissioner of Labor Carroll D. Wright, in his annual report for 1886, advocated the establishment of some sort of Government agency to facilitate the arbitration of disputes in the field of labor.^* Mr. Wright insisted, however, that such arbitration should be vol- untary on the part of the parties to the disputes. At no time did Mr. Wright favor compulsory arbitration. In spite of the vigorous opposition to House bill 7479, with a few amendments of minor importance it passed the House of Eepre- sentatives on April 3, 1886." One hundred and ninety-nine voted in favor of the bill and 30 against it. This bill, as passed by the House, was later — February 28, 1887 — pa,ssed by the Senate without amend- ment.^^ But President Cleveland had views of his own as to what pro- visions should be incorporated in the bill passed by Congress. He therefore refused to approve the measure within the 10-day period provided to make it law. In his message of April 22, 1886, President Cleveland had outlined the terms he thought necessary in such leg- islation.28 He proposed a permanent commission consisting of three members appointed by the President. The permanence of the com- mission was designed to give it stability and to enable the members to acquire skill in the handling of labor controversies. The commis- sion was to have full authority to investigate any difficulty between capital and labor which threatened an interference with interstate commerce : If the usefulness of such a commission is doubted because it might lack power to enforce its decisions, much encouragement is derived from the con- ceded good that has been accomplished by the railroad commissions which have been organized in many of the States, vs^hich, having little more than advisory power, have exerted a most salutary Influence in the settlement of disputes between conflicting interests. harmful disorder and injury, no further argument Is needed to show the necessity of a compulsory settlement of all disputes between common carriers and their employees. It is time for the law to declare that neither party to such controversies, shall use public necessities to force a compliance with Its demands by throttling the lines of commu- nication." The New York World said : " It can be seen at once that railroad strikes are very different things from those arising In business of a private character. It is simply a matter of necessity that the liability of the occurrence be reduced to a minimum, If indeed it can not be ended altogether. » » * Courts of arbitration can determine what Is fair and compel the companies to live up to their contracts with the public accordingly." (In statement by Mr. Glover: Congressional Record, Vol. XVII, p. 2971 (Mar. 31, 1886).) ^ Constitution of the Independent Order, Knights of Labor, Washington, 1888, p. 8. 2s " Resolved, That we call upon our legislatures, both State and National, to enact such measures as will compel the recognition of labor organizations, and compel cor- porations to arbitrate differences between and with themselves and their employees." (Presented by Mr. Glover: Congressional Record, Vol. XVII, p^ 2973 (Mar. 31, 1886).) In the Senate Senator Harrison, of Indiana, presented a petition from 11 ofiScers of the Knights of Labor of Fort Wayne, Ind.. praying for the speedy passage of the bill for the arbitration of all disputes. (Congressional Record, Vol. XVII, p. 3349.) Mr. Blair presented a similar petition from the labor organization at Manchester, N. H. (Congressional Record, Vol. XVII, p. 3375.) =» V. S. Commissioner of Labor. First Annual Report, p. 275. "Congressional Record, Vol. XVII, p. 3066. "» Idem, Vol. XVIII, p. 2376. » Idem, Vol. XVII, pp. 3728-3729. 12 USE OF FEDERAL POWEE IN RAILWAY LABOR DISPUTES. The President suggested that the commission might be composed of the Commissioner of Labor, whose appointment Congress had authorized in 1884, and two other members to cooperate with the commissioner. In his special ■ message of December 6, 1886, Presi- dent Cleveland again recommended the creation of such a com- mission.^" A committee of the House of Eepresentatives, appointed to mvesti- gate railroad strikes, made its report on March 3, 1887. This report emphasized the public nature of the railroad business and the legal basis for the regulation of it. But arbitration did not seem to this coromittee to be the solution of the labor problem on the railroads.'^ During the following session of Congress two bills for the set- tlement of railway labor disputes were considered.^^ The bill which ultimately received the approval of Congress was House bill 8665, introduced by Representative O'Neill, of Missouri. This bill con- tained the provisions of the one passed in the preceding session,, modified, however, in such manner as to comply with the suggestions made by President Cleveland. The President was authorized to appoint a special board to visit the scene of any threatened strike and to report the causes of the trouble. Arbitration under the meas- ure was to be voluntary. Just as in the case of the bill of thp preceding session of Congress, this one elicited expressions of approval and of disapproval from the Members of Congress. Those who opposed the enactment of the law did so, in the main, upon the theory that the new legislation would add nothing to the existing facilities for the adjustment of con- troversies in the railway labor field.^^ On the other hand, the bill was heartily approved by many of the Members. Representative Cannon, of Illinois, said that he con- sidered the most important part of the bill that provision which called for the appointment by the President of a special commission to investigate any controversy that might arise.''* As will appear in the following chapter, Mr. Cannon was correct in his appraisal of the relative merits of the provisions of the bill. '■" Congressional Record, Vol. XVIIl, p. 11. 'V "^hatever remedy will give the proper protection to capital invested in the rail- roads 0;f the country and at the same time protect their employees from iniu'?tice and oppression your committee propose that they shall together, as a single instniment ot our interstate commerce, be looked upon as servants of the people of uie TTnitoii "Jtntefl and as such be regulated and protected by law * * * t"^i''« "i «ie united states. "A majority of your committee can not believe that arbitration caii be effective for the reason that there must be two parties to the arbitration, and either mav ^ociinn And said majority further believe that when disturbances occur it would not be effiSive in immediately redressing wrongs or restore the means of transit of oerson an^ iWrior+S to the people of the country." (H. Eept. 4174, 49th Cong. Pt I d Jil#^ property ^ 60th Cong. : H. E. 1432 ; H. K. 8665. ' ' ^' ^•' "•Kepresentative Parker of New York said: "I am opposed to this bill because in my judgment, it is good. for nothing. It reaches nowhere and it leads nowhrae" hS advocated a measure which would declare unlawful a sti-ike pending the investiea tinn of It and a report thereon by a Government commission. " We should have fli-o? iW^ii+j gallon ; we should have next provision for publicity throughout the countrv SSSSili that,, we should have power to cpmnel arbitration." He opposed this measui-e an thP more ardently because he believed that its enactment would serve as a hn?i.i„. J I? i of a law with teeth in It. Such a law, he thought, could be enacted ^ *° *^ Representative Tillman, of South Carolina, in characteristic terms eTni-oc ^ i,- opposition to the bill : " I hope the House will not pei-mit this ' fraud ' ak. rh^ „ ?? ** from New York called it, to be passed. It is as void of any practical iitiii?S°t ™'^" public, Jx> the railroads, or_ to the ^ofacers_and agents of the railroads as a ball** " _. „„„ „ .^„ , „.^„ „„. „ ,„ .,,, ,,,„ books 3100, and 3105 (1888).) ' "'"^- ^^-X-. Pp. 3099, '^Congressional Record, Vol. XIX, p. 3107 (Apr. 18, 1888). EAB.LY PEKIOD: LAW OE 1888. 13 THE LAW OF 1888. PROVISIONS. The bill discussed above passed the House on April 18, was accepted by the Senate without amendment on September 14, and received the approval of President Cleveland on October 1, 1888.^' The provisions of the law as enacted fall logically into two main categories.^" The first five sections of the act provide for voluntary arbitration whenever any difficulty between railway managers and employees threatens to interfere with the movement of interstate commerce. Either side may apply in writing for arbitration under the law. If the other side to the controversy accepts, each side shall appoint one representative, and these two shall select a third, the three forming the board of arbitration. Power is given to the board to subpcena witnesses, receive testimony, examine records, etc. When an award is made it is to be transmitted to the Commissioner of Labor. This official shall publish the terms of the award. The essential feature of this arbitration is that it is entirely voluntary upon the part of both parties thereto. The act makes no provision for the enforcement of the award rendered. Public opinion is relied upon to force compliance therewith. The second part of the law deals with the appointment of in- vestigation committees in accordance with the recommendations that had been made by President Cleveland. When the President deems it necessary, in order to prevent an interference with inter- state commerce, he m,ay appoint two commissioners one of whom is to be a resident of the State in which the controversy occurs. These two appointees, together with the Commissioner of Labor are to constitute a special investigation committee. The board is to try to ascertain the causes of the trouble investigated and to make recom- mendations for its settlement. This report is to be published, and upon the publication the life of the commission ends. The services of the investigating commission are to be tendered upon the initi- ative of the President, upon an invitation from one of the contend- ing parties, or upon the suggestion of the chief executive of the State in which the trouble arises. The commission has for the secur- ing of information the same power and authority that arbitration boards have in arbitration proceedings. The National Government is to bear all expenses incident to arbitration and investigation pro- ceedings under the law. SIGNIFICANCE. Notwithstanding the great commotion that was occasioned in Congress by the passage of the law the arbitration provision was never used throughout the 10 years in which the law was on the statute books. The investigation authorized by the act — ^the part of the law which seemed to most people at the time of the passage of the law the less important feature, although this was not true of the President — was brought into use in one strike of large pro- ^ Congressional Record, Vol. XIX, pp. 3109, 8609, and 9074. ^-aS Stat., SOth Cong., ch. 1063. 14 USE OF FEDEKAl, POWEE IN RAILWAY LABOE, DISPUTES. portions. This will be the topic of the following chapter, in which the Pullman strike of 1894 is discussed. While the law of 1888 had no apparent effect on the settlement of railway labor disputes in general this does not signify that the law was a complete failure. Many of its main provisions were later incorporated in the laws that were passed for the purpose of meet- ing the situation designed to be remedied by the enactment of this law. Perhaps, the greatest significance of the law lies in the 'fact that this was the initial legislation by the Federal Government with a view to handling the railway labor problem. It served as an enter- ing wedge for the passage of similar laws which were successful in their operation. An examination of the laws enacted in 1898 and in 1913 shows a marked similarity to the old law of 1888. As a background and as a basis for the later laws, then, the one enacted in 1888 has a large place in the history of the activities of the Na- tional Government in the railway labor field. CHAPTER II.— THE PULLMAN STRIKE OF 1894. THE STRIKE, AND ACTION BY FEDERAL OFFICIALS. In 1894, before the passage of any further legislation dealing with the settlement of railway labor disputes, the country was called upon to witness an unprecedented exercise of Federal power in this field. During the latter part of 1893 and the first half of 1894 the Pullman Palace Car Co. had a disagreement with its employees at Pullman, 111. "Wages, rents, and shop conditions were involved in the troubles. On May 10, 1894, the unions voted to' strike. The American Railway Union, under the leadership of Eugene V. Debs, espoused the cause of the Pullman employees, whose union was aiSliated with the Ameri- can Railway Union. Debs asked the Pullman Co. to arbitrate the controversy. The company refused to do this, claiming that there was nothing to arbitrate. As a result of this attitude on the part of the Pullman officials the American Railway Union, in convention in Chicago on June 21, voted unanimously that the members of the union should refuse to haul cars belonging to the offending company. This, in effect, was the declaration of a strike in sympathy with the Pullman employees.^ During the period that followed the calling of the strike the more reckless elements indulged in outbursts of violence and caused serious inconvenience and injury to the public.^ The local officials were either unable or unwilling to handle the situation. Because there was incidental interference with the movement of the mails and with in- terstate commerce, Federal officials intervened in the matter. At- torney General Olney sent the Federal officials throughout the pare of the country affected the following telegram : See that the passage of regular trains carrying United States mails In the usual and ordinary way, as contemplated by the act of Congress and directed by the Postmaster General, is not obstructed. Procure warrants or any other available process from United States courts against any and all persons engaged in such obstruction and direct marshal to execute the same by such number of deputies or such posse as may be necessary." Ordinary police proved inadequate to handle the difficulty in such a manner as to prevent violence. Therefore,. the President ordered Federal troops to Chicago for the purpose of protecting Federal property; preventing the obstruction of the mails; preventing the interruption of interstate commerce; and enforcing the decrees of the Federal courts. -This was all done without any application from the governor of Illinois or from the legislature of the State.* But 'U. S. strike Commission. Eeport of Chicago Strike, S. Ex. Doc. No. 7, 53d Cong., 3d seas. ^ Idem, pp. xliil-xM. , ^ . ^ on« o " V. S. Attorney General. Appendix to annual report for 1896, P- 6. „ _ _„ . _, *U. S. Strike Commission. Report of CUcago Strike, S. Ex. Doc. No. 7, 53fl Cong., 3d sess., p. XX. ..- 16 USE OP FEDERAL POWEE IK RAILWAY LABOR DISPUTES. sections 5298 and 6299 of the Eevised Statutes authorized tne dent to act thus under the conditions then obtaining in Illinois- ATTITUDE OF THE PEOPLE. The action of the President and of the Attorney General raised a storm of protest from some quarters and from o*|??^ sources hearty commendation for the work accomplished. From Mr. Ulney s own State of Massachusetts criticisms came.^ Those who approved the action of the administration saw in it the strengthening of the faith of the people in the institutions of the Government m this country ; " others saw in the whole situation another argument for the stringent legislation already suggested for handling such emer- gencies in the railroad field.'^ The Eailroad Gazette considered the action of President Cleveland that of a true statesman.* But, ac- cording to Mr. Gompers, president of the American Federation of Labor, the President had been guilty of a violation of our most sacred rights as free men in a free and democratic country.^ VIEWS OE MEMBERS OF CONGRESS. The feeling of the Members of Congress concerning the Pullman interference was divided. Representative Fithian, of Illinois, criti- cized the President for sending troops to Chicago without first having been asked by the governor of the State to do so : Federal troops, in my judgment, can not be sent into a State by the President without permission of the executive of the State or the legislature, when in session, without violating the Constitution and fundamental principles." Representative Bland, of Missouri, said that if we must have im- perialism it should come only with the consent of the Representatives of the people in Congress.^^ Representative Pence, of Colorado, criticized Mr. Olney on the ground that he was a corporation lawyer.^^ = The following message was sent Mr. Oluey on July 8, 1894 : '' A meeting of citizens on Boston Common to-day passed resolution deeply regretting your delivery O'f the United States Government to the railroad kings, and Indorsed the western strikes." (Appendix to Annual Report of U. S. Attorney General for 1896, p. 126.) " The United States Attorney for Utah wrote to Mr. Olney : " I beg to give to you and to the President my congratulations upon the prompt and sturdy manner in which, the emergency was met and dealt with. Public sentiment in this western country was greatly strengthened by such action ; and it is a common thing now upon every street corner, almost, to hear people who, 10 days ago, were trembling for our Institutions, give forth healthy sentiment of confidence in the future of our Government." (Idem, p. 198.) ^ A message from Manchester, N. H., stated : " I think Congress should at once pass a law that whoever shall be guilty of hindering or obstructing the business of any railroad engaged m interstate business or the carrying of tlie United States mails or who aids or abets, directly or indirectly, in attempts so to do, shall be unnrisoned not less ttan 10 years nor more than 20 years." (Idem, p. 153.) •^yimuuKKi uui. I'l*. *, . * It must be clear to every dispassionate mind that Mr. rievRlanfl has acted in this trying occasion not only within constitutional limits, but with cnnSflprahle moderation, forbearance, and dignity. And we shall have the more confldence in the P^JP.'^.S.'*y °* °^'' Government." (The Railroad Gazette, Vol. XXVI, p. 405 i Tniv i stxn i 6 The President of the United States lias no more legal or moral risrht t^ ^ni»+i the constitutional guaranties of the people and our States than the humhio=? Jw,^^ and it IS only in a humble and manly determination to maintain and defend ^„„-i;i-' that we can hope to perpetuate our republic, and hand it down to posteHt-J^^ * '^ i„ unimpaired but Improved." (Report of Proceedings of the Ameritiitr ir„Z "P-* °°'? Labor, 1894, p. 11.) federation or 1° Congressional Record, Vol. XXVII, pp. 2799, 2800 (Feb. 26, 1895). "Idem, Vol. XXVI, p. 7545 (.July 16, 1894). i=Idem, p. 7544 (July 16, 1894). TJlJi J:-ujjl^MAj>r STRIKE OF 1894. 17 But the majority opinion in Congress indorsed the action of the President. On July 11. 1894, the following resolution passed the Senate : Resolved, That the Senate indorses the prompt and vigorous measures adopted by the President of the United States and the members of his administration to repulse and repress, by military force, the interference of lawless men with the due process of the laws of the United States and with the transportation of the mails and with commerce among the States. The action of the President and his administration has the full sympathy and support of the law-abiding masses of the people of the United States, and he will be supported by all departments of the Government and by the power and resources of the entire Nation." A similar resolution was adopted by the House of Representatives on July 16." DECISION OF FEDERAL SUPREME COURT. IN RE DEBS." In 1895 the Federal Supreme Court was called upon to make a decision which involved the validity of the action of President Cleve- land in intervening in the Chicago trouble. This case was the well- known one, In re Debs. In connection with the Pullman strike Debs and others had been enjoined by the circuit court from conspiring to do anything that would interfere with the carrying of the United States mails or with the movement of interstate commerce. They had failed to comply with the terms of the court's order and were ad- judged guilty of contempt of court, having been sentenced to prison therefor. On January 14. 1895, they applied for a writ of habeas corpus, alleging the invalidity of the restraining order because, they contended, the action of the Federal Government in stepping into the local trouble was a violation of the Constitution. Should the court uphold the order of the lower court, that meant approval of the right of Government intervention. Mr. Justice Brewer ruled against the applicants. The issue in- volved the determination of the sphere of Government in this field. A few of the vital sentences in the decision are herewith given : Two questions of importance are presented: First, Are the relations of the General Government to interstate commerce and the transportation of the mails such as to authorize a direct interference to prevent a forcible obstruction thereof? Second, If authority exists, as authority in governmental matters im- plies both power and duty, has a court of equity jurisdiction to issue an injunc- tion in aid of the performance of such duty? The first of these two questions is relevant to the inquiry of this paper. Answering this the court said : As, under the Constitution, power over interstate commerce and the transpor- tation of the mails is vested in the National Government, and Congress by virtue of such grant has assumed actual and direct control, it follows that the National Government may prevent any unlawful and forcible interference therewith. The entire strength of the Nation may be used to enforce in any part of the land the full and free exercise of all national powers, and the security of all rights intrusted by the Constitution to Its care. The strong arm of the National 1" Congressional Record, Vol. XXVI, pp. 7282, 7284. " Idem, pp. 7544, 7546. i°158 U. S. 564. 79994° 18 USE OF FEDERAL POWBE IN RAILWAY LABOR DISPUTES. Government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails. If the emergency arises, the Army of the Nation, and all Its militia, are at the service of the Nation to compel obedience to its laws. So, in the case before us, the right to use force does not exclude the right to appeal to the courts for a judicial determination and for the exercise of all their powers of prevention. The National Government, given by the Constitution power to regulate inter- state commerce, has by express statute assumed jurisdiction over such com- merce when carried upon railroads. It is charged, therefore, with the duty of keeping those highways of interstate commerce free from obstruction, for it has always been recognized as one of the powers of a government to move obstructions from the highways under its control. LABOR'S VIEW OF THE DECISION. This decision fell like a bomb into the field of labor. The labor unionists regarded it as an evidence that the courts were partial to the capitalistic interests of the country. The leaders of the unions have always insisted that they must retain the right to leave their work either individually or collectively. Otherwise, in their view, they should be little better than were the slaves of antiquity. An editorial in the American Federationist for June, 1896, summarized the views of the leaders on the decision of the court : The decision of the United States Supreme Court in the Debs case is the worst ever made by such a court, so far as the interests of labor are concerned. * * * Strikes are the last resort of working people to obtain justice at the hands of unscrupulous employers, and when the right is taken from labor, as now it is by the Federal courts, laboring men know that their liberties have been abridged for no other purpose than that of enlarging the power and privileges of capital. It is safe to say that labor will find redress in some form or other, and that ere long.'° PRESIDENT CLEVELAND'S STATEMENT ON THE DECISION. President Cleveland was very much pleased by the decision in the Debs case. In McClure's Magazine for July, 1904, he concluded his discussion of the case thus : Thus the Supreme Court of the United States has written the concluding words of this history, tragical in many of its details, and in every line provoking sober reflection. As we gratefully turn its concluding page, those most nearly related by Executive responsibility to the troublous days whose story is told may well congratulate themselves, especially on the participation in marking out the way and clearing the path, now unchangeably established which shall hereafter guide our Nation safely and surely in the exercise of its functions which represent the people's trust." ' THE STRIKE COMMISSION.^ PERSONNEL. President Cleveland appointed a commission to investigate the Pullman troubles. The commission consisted of United States Com- missioner of Labor Carroll D._ Wright; John D. Kernan, of New York; and Nicholas E. Worthmgton, of Illinois. The commission began hearings m Chicago on August 15, 1894, and closed on Au- "American Federationist, Vol. II, p. 68 "McClure's Magazine, Vol. XXIII, p. 240. o/jwe-^Julyfiyr^TsaT 'p?^?- '• ""'''^'^ Commission. Report on the Chicago « triSe THE PULLMAN STRIKE OF 1894. 19 gust 30. Another hearing was held in Washington on September 26. A report of the proceedings and the recommendations of the com- mission was transmitted to the President on November 14, 1894. FINDINGS AND REGOICKENSATIONS. The conclusions and recommendations of the commission are of great significance in so far as they deal with the methods of settling railway labor disputes. It was suggested that a permanent com- mission consisting of tthree members be appointed. This commis- sion was to have in the railway labor field power similar to that of the Interstate Commerce Commission in the field of railway rates. The railroads were to be compelled to obey the decisions of such a board. Pending an investigation by the commission no railroad could dis- charge an employee, save for certain specified reasons; nor could the employee aid or abet a strike or boycott against the railroad for a like period. For six months following a decision a railroad could not discharge an employee in whose place another man was put (except that certain specified grounds were to be regarded as justi- fying the discharge of a man). For the same period of time no employee was to leave the employ of the railroad without first having given 30 days' notice of his intention to leave. Some sort of legisla- tion was to be enacted with a view to encouraging the labor organi- zations to become incorporated. The commission stated that it was not prepared to express either approval or disapproval of the sug- gestion made to it that the railroad employees be required to take out a license. It is highly interesting to see so early as 1894 a responsible com- mission, headed by Commissioner Wright, give clear recognition and expression to the paramount interest of the public in interferences with the movement of railroad traffic, and also advocate positive legislative action for the purpose of making such interruptions less likely or even impossible. The report of the commission, in an appendix, gave a digest of the suggestions it had received as remedies for the situation. These recommendations advocated such means as Government ownership and control of the railroads, the licensing of the railroad employees, pensioning the railroad men, the adoption of the single tax, statu- tory regulation of wages, the creation of a Federal commission to deal with the situation, changing the financial system so as to avoid depressions, etc. It will be seen in a later chapter that several of these recommenda- tions have met with favor in recent periods. Especially interesting is it to compare them with the views expressed at the time of the passage of the Adamson law. CHAPTER III— SECOND STAGE OF FEDERAL INTERVEN- TION: THE ERDMAN ACT. EARLY CONSIDERATION AND ATTITUDE OF THE PEOPLE. The passage of the first law for the settlement of railway labor disputes does not appear to have decreased appreciably the agitation for Federal action in this field or the discussion of the best means for effecting a desirable solution of the problem. On December 20, 1889, Mr. Anderson, of Kansas, who had for some time taken an active part in the legislative discussions! of these problems, intro- duced a bill to create a United States commission to arbitrate railway strikes and lockouts.^ On April 5, 1890, Mr. Blair introduced in the Senate a bill the object of which was to settle such controversies.^ Then, on July 12, 1892, a resolution was: introduced by Senator Voor- hees, of Indiana, asking the Committee on Education and Labor to report on the advisability of establishing a commission of labor in accordance with suggestions outlined in the message of President Cleveland on April 22, 1886.^ No action was taken by Congress on any one of these bills, nor was very great attention ^ven to them in the congressional discussions. However, in 1894 the Pullman strike called the attention of Congress to the gravity of the situation and to^ the inadequacy of the then existing legislation to cope with the railway labor problems. During the year a number of bills dealing with the issue were proposed. In June the following bills were introduced in the Fifty-third Conoress • House bill 7351, House bill 7382. In July Senate bill 2185, House bill 7727, House IdIU 7765, and House bill 7697 were proposed. Again in December a bill of the same kind (H. E. 8124) was sugo-ested. In addition to the above bills, several attempts were made by Members of Congress to have amendments made to the original act' which had been passed in 1888. Most of these bills died in the committees to which they were re- ferred. One, however (H. R 7727), was reported favorably to the House by the Committee on Labor, July 30, 1894.* The bill was framed in such a way as to carry out the plan which President Cleve- land had advocated an his first message on the subject. A permanent commission of three men was to be appointed to examine into anv controversy that threatened an interference with interstate commerce The committee in its report insisted that the commission should be a permanent one. The object of the bill was " simply to secure as far as possible, to every person, however humble, a hearing upon the '■ Congressional Record, Vol. XXI, p. 341 2 Idem, p. 3054. 'Idem, Vol. XXIII, p. 6038. < H. Kept. No. 1343, SSd Cong., 2d sesa. 20 SECOND stage: the eedman act. 21 merits of any controversy he may have, and a summary process and means of securing his rights, whatever they may be, under the laws as they now exist?' The report stated that the laborers of the coun- try desired such legislation: The warkingmen of the country at this time are asking, and have been asking for many years heretofore, the establishment of an impartial board for the arbitration of all controversies that may arise between them and their em- ployers. No one of these bills provoked much discussion in Congress. But some of the labor interests" affected by the measures expressed their views of the proposals made. Mr. Debs, editor of the Locomotive Firemen's Magazine, opposed the bill which Mr. Blair had introduced in 1890. This bill provided that the employees could not lawfully order a strike until they had first proposed to the employers that the difference be submitted to arbitration, and they must await an answer for five days before calling the strike. Debs characterized the bill as " unfair, one-sided, and unjust, and as such ought to be opposed by every railroad employee in the land."^ He became very bitter in his opposition to any measure that purported tO' pro- vide compulsory arbitration. In 1894 he said editorially: When the people become so degenerate as to passively submit to have their individuality wiped out, to be herded like cattle, no matter what plausible argu- ments are used to accomplish their degradation, the time will have arrived to sing again the old song addressed to the flag : " Haul down that flaunting lie." ' The editor of the Eailway Conductor in August, 1894, made some comment on the Tawney bill (H. E. 7382), which had proposed the compulsory arbitration of railway labor disputes by a committee of five men to be appointed by the President of the United States. While he objected to the passage of this particular bill, the editor expressed himself in favor of some kind of arbitration of these dis- putes. The men, he said, could not afford to strike for any reason that could not stand arbitrament by an impartial tribunal. And, according to the opinion expressed, the men would gladly consent to such an arbitration proceeding.'' Many of the magazines of the time commented upon the methods of settling railroad labor disputes. As representative of a large number, the following extract from the Outlook of July 21, 1894 (p. 90), may be cited : For ourselves, we think it quite clear that a system which treats the Nation's highways as private property and which leaves the owners and the operators to settle their controversies by a strike is unphilosophical, inconsistent with national welfare or even national peace, and must give place to something better. The remedy proposed by the editor was that the railway employees be placed in a relationship to the roads similar to that of the seamen to a ship ; that a court be established for the hearing of complaints, 6 Brotherhood of Locomotive Firemen and Enginemen's Magazine, Vol. XIV, p. 490 (June, 1890). « Idem, Vol. XVIII (February, 1894). . ^ . i,. j. ,. ^ ' " No body of workingmen can afford to strike in support of a cause that would not stand the test of impartial arbitrament and the great body of them would be the first to repudiate such a cause. Let them be thoroughly assured of a fair hearing before an im-partial tribunal, able and willing to enforce its decree without fear or favor, and the day of the strike and the boycott will have passed forever." (The Railway Conductor, Vol. XI, p. 4ir.) 22 USE OF FEDEEAL POWER IN RAILWAY LABOR DISPUTES. and that, in the event of a failure to accept the award of the court, the employees could leave the service. But they must leave only m such a manner as not to cripple transportation. This meant that no collective action would be tolerated if that action meant a strike. The employers were either to accept the decision or else surrender the operation of the roads. CONGRESSIONAL PRELIMINARIES TO ERDMAN ACT. Throughout the year 1895 Congress continued to consider measures for the settlement of railway labor disputes. Three bills were intro- duced in 1895, two of these being reported upon by the committees to which they had been referred. The bills were House bills 8556 and 8404 (53d" Cong.) and House bill 268 (54th Cong.). On February 2, Eepresentative Erdman, of Pennsylvania, for the Committee on Labor, submitted a favorable report on House bill 8556.** This report showed that the representatives of the five railway brotherhoods all favored the passage of the proposed law. A communication signed by the chiefs of the brotherhoods asked the speedy passage pf the law, saying that the nature of the railway business was such that Congress had jurisdiction in the field.^ A letter from Commissioner of Labor Carroll D. Wright was pre- sented in favor of the passage of the bill.^° Mr. Wright said that he considered the passage of such a law a step in the right direction. For several years he had advocated the settlement of industrial con- troversies without resort to violence or even to the strike. But the arbitration favored by Mr. Wright was to be altogether voluntary. However, he did recognize the paramountcy of the public interest. And in the report of the commission which investigated the Pullman strike, a commission of which Mr. Wright was a member, a consider- able degree of governmental compulsion was advocated.^^ In presenting the report to Congress Mr. Erdman gave to Attorney General Olney the credit for having prepared the original bill, tt contained no provision for compulsion ; all the procedure was to be strictly voluntary upon the part of both parties to the controversy. In this bill, for the first time, mediation and conciliation provisions ranked in importance along with arbitration. A board of mediation and conciliation was to be organized for the purpose of adjusting any controversy that might arise. This board was to be composed of the United States Commissioner of Labor and the chairman of the Interstate Commerce Commission. Hence the recommendation for a permanent commission, advocated in the early days by President Cleveland, was to be carried out in the proposed law.^^ On February 26, after some discussion, in which the voluntary nature of the bill was emphasized, the House of Representatives 8 Congressional Record, Vol. XXVIII, p. 8556. ""Recognizing the Jurisdiction of Congress over all matters pertaining to lntPTman.^® But the unqualified indorsement of the brotherhoods was sufficient to down criticism that otherwise might have had weight with Congress. This bill, like the preceding one, failed to pass the Senate. The failure in this instance, though, was due to the fact that the House was late in passing it and the Senate did not get to the consideration of it before time for adjournment. In the Fifty-fifth Congress new bills were introduced. This time the Senate was as deeply concerned as the House had already shown itself to be. In the Senate the following bills were proposed : Senate bill 122, Senate bill 1014, Senate bill 3653, Senate bill 3662. In the House: House bill 61, House bill 4372. The Committee on Labor of the House again reported the arbitration bill favorably, giving the testimony of Commissioner Wright and of the railway brotherhood leaders as favorable to the proposal.^^ This report was made to accompany House bill 4372. In the Senate the Committee on Education and Labor reported favorably on Senate bill 3662.^" The report of the Senate Committee adverted to the fact that a bill similar to this one had already passed the House at two of its sessions ; that it was indorsed by the representatives of the rail- way labor organizations; by Secretary Mosely, of the Interstate Commerce Commission; by Commissioner Wright, and by others. The letter of the brotherhood chiefs contained one clause which has had some significance in the light of their more recent utterances : It seems to be thorougWy conceded, also, that legislation by Congress, so as to provide arbitration in disputes arising from the semipublic duties in which "Congressional Record, Vol. XXVII, p. 2805. "Idem, Vol. XXVIII, _p. 49. >^H. Kept. No. 1058, 54tli Cong., 1st sess. ,. ^ „ „ ^ « Congressional Record, Vol. XXIX, pp. 2388, 2389 (speech of Mr. Brdman). "Idem, p. 2388. »8Idem, p. 2389. ^ H. Rept. No. 454, 55th Cong., 2d sess. » S. Rept. No. 591, 55th Cong., 2d sess. 24 USE OF FEDERAL POWER IN RAILWAY LABOR ClSPUTES. railway men are engaged is not only appropriate, but in line with the policy of Federal protection and regulation of interstate commerce.^ This is obviously a modification of the attitude formerly main- tained by the brotherhood leaders. The evolution of the labor move- ment in the railway field has caused this modification of position. PASSAGE OF THE ERDMAN ACT. The arguments for and against the passage of the bill providing for arbitration of disputes between the railways and their employ- ees had been given at length in the preceding sessions of the House of Eepresentatives. In this instance, then, the discussion was brief and the bill passed on May 5, 1898.^^ In the Senate a vigorous op- position developed. Senator Allen, of Nebraska, said that the law would operate in such a way as to make bond servants of the rail- way employees.^^ Senator Elkins, of West Virginia, thought that the authority to be conferred on the commission should be vested in the Interstate Commerce Commission and that no new commission should be created.^* Senator Kyle, of South Dakota, who had charge of the bill, emphasized the fact that the arbitration provided for was to be voluntary only.^* In spite of the opposition the bill was approved on May 12 in the Senate by a vote of 47 to 3.^' As indicated above. House bill 4372 had already passed the House. On May 19 the House, upon the recommendation of a conference committee, adopted by a vote of 226 to 5 the bill that had passed the Senate-.^" On June 1, 1898, the bill was approved by the President and became law.^ The legislative history of this bill has been given in detail in order to show that it was no hasty and ill-advised law pushed through Con- gress without having received the consideration due a measure of such significance. As indicated in the preceding pages this law had been before Congress, practically in the form in which it was adopted, for more than three years. During that time all the in- terests affected had ample opportunity to have their case heard on the merits of the plan proposed. And, as already shown, the rep- resentatives of the railway labor organizations were enthusiastic in their approval of the measure. OPINIONS CONCERNING THE LAW. It should not be assumed that there was no opposition outside Congress to the passage of the law in question. The American Fed- eration of Labor brought all the pressure it could in order to defeat the bill. In the annual convention of 1897 the Federation protested' against its passage.^' Mr. Gompers, in an editorial in the American Federationist, insisted that the law would be a mistake. He pub- lished a letter from counsel containing the followino- statement- " We regard the bill as dangerous in its tendencies to the extreme iii =' S. Eept. No. 591, 55tli Cong., 2d sess., p. 3. == Congressional Recoi-d, Vol. XXXI, p. 4649 ^ Idem, p. 4Y90. *" Idem, pp. 4800, 4801. ^ Idem, p. 48.58, =» Idem, p. 5053. -''Idem, p. 5566. =» American Federationist, Vol. Ill, p. 258 (February, 1897). SECOND stsgfe: the ebdman act. 25 that it constitutes an attempt to wed the laborer to his employment, and tlie nearest analogy which occurs to us is that of the serfs who are understood to be bought and sold with the land upon which they live." ^^ Mr. Gompers, testifying before a committee of the House of Rep- resentatives in January, 1917, said that his opposition and that of Mr. Andrew Furuseth were responsible for the elimination of the seamen from the operation of the Erdman law. He finally withdrew his opposition only because the railway men were anxious to have it enacted.^" Eepeatedly in the annual conventions of the American Federation of Labor and in the editorial columns of the Federationist Mr. Gompers protested against the intervention of the Government in the field of labor disputes. In an address to the International Federation of Trade-Unions, however, he commented on the New- lands law, a law in its essentials like the Erdman Act : The voluntary arbitration act for employees on railroads was amended by providing for a permanent office of Arbitration and Conciliation Board. The board has already been helpful in the adjustment of disputes between rail- road managers and the brotherhoods of railroad employees, invariably with beneficial results to the workers." The Railroad Gazette, representing the point of view of the rail- way managers, expressed some doubt as to the good results to come from such a law. Its doubt was due to the fact that only one of the parties to the controversies was responsible; that is, in a posi- tion such that an award could be enforced against it. Only involun- tary servitude could force the laborers to accept the decision of the board, and such servitude was contrary to the Federal Constitution.^^ in a subsequent issue the Gazette said that perhaps no good would come from the law, but that its passage was an encouraging sign of an increasing public interest in grappling with the problem of labor disturbances on the railroads.^^ PROVISIONS OF THE LAW. I The Erdman law,^* so called because Mr. Erdman had charge of the bill, like the law of 1888, contained two principal parts. It will be recalled that the earlier law provided for arbitration and also for investigation by a Federal board. In the Erdman Act the in- vestigation by the Federal board was not provided for. Under its terms no investigation of the Chicago Pullman strike could have been made. But the law of 1888 had made no provision for media- tion and conciliation^ This was the new phase incorporated in the Erdman law. Wlyle the thought of the time seems to have cen- tered mainly upon! the arbitration features of the law, subsequent events, as will appear presently, proved that the mediation and con- '■" Mr. Gompers saifl : " The Erdman administration bill, so called, is a piece of legis- lation destructive of the best interests of labor, ruinous of the liberties of our people ; a step in the direction for the creation of an autocracy or an empire on the one side and a class of slaves or serfs on the other. Against such a condition of the affairs the whole semtiment * * * the entire interest of watre workers «liould be directed " (American Federationist, Vol. Ill, pp. 249-252, 259 (February, 1897). =" TJ S. Congress. Committee on Interstate and Foreign Commerce. Hearings on H. B. '19730, 64th Cong., 2d sess., p. 96. ,,„ ,„ ^ ,„,^, 31 American Federationist, Vol. XXII, p. 118 (February, 1915). 32 The Railroad Gazette, Vol. XXX, p. 343 (May 13, 1898). 33 Idem, p. 376. ai 30 Stat., 55th Cong., ch. 370. 26 USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES. ciliation clauses of the law were to be the more important in the actual operation of the act. The Erdman Act applied only to the interruption in which were in- volved railroads and their employees engaged in the operation of trains in interstate commerce. When such interference of traffic was threatened because of differences arising between employers and em- ployees it was to be the duty of the chairman of the Interstate Com- merce Commission and of the United States Commissioner of Labor, upon application of either party to the controversy, to offer their services in an effort to bring about ^n amicable adjustment of the trouble through mediation and conciliation. Failing in this, they were to try to bring about arbitration proceedings in accordance with the act. Subsequently, when Judge Knapp of the Interstate Com- merce Commission was made a member of the commerce court, the law was amended in such manner as to make it possible to retain Judge Knapp as a mediator.='= The Erdman Act made no provision for the taking of the initiative by the commissioners. In this respect it was weaker than the earlier law under the terms of which the Presi- dent was authorized to investigate any controversy he thought it de- sirable to look into. The entire act contained, 12 sections, only one of which dealt with mediation and conciliation. Yet, in the operation of the law, this one section proved of more significance than did all the other sections combined, notwithstanding the fact that at the time of the passage of the law this section was generally considered the less important part of the legislation. In the event of the acceptance of arbitration under the law each side to the controversy was to select one arbitrator and these two were to select the third or neutral arbitrator. If they could not agree on this third man within a period of five days from their own appoint- ment, this member was to be appointed by the chairman of the Inter- state Commerce Commission and the Commissioner of Labor. The agreement to arbitrate was to be signed by both sides and was to contain the following provisions : 1. The board was to begin its sittings within 10 days from the time of appointment of the third arbitrator and was to file an award within 30 days from the commencement of hearings. Pending the handing down of the decision the existing status should be maintained by the contestants, but no individual was to be forced to remain in the service against his will. 2. The award and a record of all proceedings were to be filed with the Circuit Court of the United States in the district in which the controversy occurred, and this decision was to be conclusive unless set aside for error of law. 3. Courts of equity were to enforce the award, provided that no individual could be forced to work against his will. 4. Employees dissatisfied with the award were not to leave the service withm a period of 3 months unless they gave written notice 30 days before leaving. A like limitation was placed on the employer in the dismissal of the employees. 5. The award was to be in effect for one year from the rendering of the decision of the arbitration board. • 36 Stat., 61st Cong., ch. 285, p. 1397. SECOTTTS STAUK ' : THE EfiDMAN ACT. 27 Within 10 days from the filing of the report with the circuit court the award was to go into effect. The necessary power in the administration of oaths, the subpoena- ing of witnesses, the talcing of testimony, etc., was given the board of arbitration. Unorganized employees, if they satisfied the board of arbitration that they represented a majority of the employees involved in the controversy, were to be permitted to come under the operation of the law. Pending the arbitration proceedings no employer could dismiss an employee, excepting for certain specified reasons; and no employees could combine to leave the service of the employer. For a period of three months after the award neither side to the controversy could terminate the relationship without 30 days' notice of an intention to that effect. Provision was made in the law for employees working on railroads in the hands of Federal receiverships, ■^uch employees could ap- peal to the Federal courts as to the terms of employment, etc. Perhaps the one provision of the law that was most heartily ap- proved by the employees was that contained in section 10, which pro- vided that no employer could exact unjust terms of employment from the worker upon the entrance of the latter into the service — such terms as an agreement not to belong to a labor union, to contribute to an insurance fund, etc. This part of the law was to be the sub- ject of court litigation, the result of which was to cause the laboring man to discount the law. t THE lAW TS THE COTTIITS. CASES DECIDED. Very soon after the Erdman law was put in operation the courts were called upon to pass upon the validity of the section which made it illegal to exact of the workingman a promise not to belong to a labor union, section 10 of the law. The first court adjudication was that of United States v. Scott,^" a Kentucky case, decided in October, 1906. Scott, a train dispatcher of the Louisville & Nashville Rail- road, threatened telegraphers with the loss of their positions if they joined the Order of Railroad Telegraphers. The defendant in this case contended that section 10 of the Erdman act was unconstitu- tional. Judge Evans of the district court held that section invalid. The judge went into a lengthy discussion to show that the section in question was class discrimination : To forbid discriminations against union labor, while discriminations against others, if made, are allowed, would not seem to be a very palpable or conspicu- ous example of equal or exact justice to all, and might be open to the criticism that it is class legislation. The judge said, however, that he did not base his decision on the discrimination in the section, but on the broader ground that this was really not a regulation of interstate commerce. It was only a regulation of certain rights of the employer to choose his own servants regardless of whether they were employed in interstate com- 1=148 Fed. 431. 28 USE OF FEDEEAL POWER IN RAILWAY LABOR DISPUTES. merce or otherwise ; and the section was so broad in its scope that it would apply to employees engaged in intrastate commerce as well as to those engaged in interstate commerce. For the latter part of the opinion he cited the precedent of the Trade-Mark cases. In November, 1906, the Order of Railroad Telegraphers asked Judge Evans for an injunction to prevent the use of intimidation by the Louisville & Nashville Railroad Co. This railroad attempted to prevent its employees from joining the Order of Telegraphers.^' Judge Evans denied the petition on the ground that, regardless of the right of action under the law, the plaintiff was not a party to the controversy and therefore had no right to benefit from the operation of the law. The railroad and the employees alone, not the Order of Telegraphers, Judge Evans said, were parties to this controversy. A more important case, as it went to the Federal Supreme Court for final adjudication, arose in the Eastern District of Kentucky in 1907.^^ The contention in this case was that Adair, a master me- chanic in the employ of the Louisville & Nashville Railroad Co., had discriminated against a man named Coppage. He had done this by threatening to discharge, and later by discharging, Coppage be- cause of the membership of the latter in a labor union. The case involved the validity of section 10 of the law. Judge Cochran upheld the section in question. He denied the three main contentions of the railroad: That the statute was un- constitutional as an interference with private rights; that the law applied to intrastate commerce and was therefore without the scope of the powers of Congress ; and that it was a denial of the equal pro- tection clause of the Constitution. A person engaged in a lawful private business and a common carrier engaged in interstate commerce occupy entirely different positions. The former has a fundamental right upon his choice to engage in and carry on such, business. The latter has no such right. It exercises a public function and has" no right to exercise it except by consent of the National Government, express or implied. As to the second objection, the judge said that it was altogether unlikely that an employee in intrastate commerce had nothing to do Avith the movement of goods over the road as a part of interstate commerce. That there was class discrimination he said was no ground for declaring the law invalid, because there was nothing in the Consti- tution forbiddmg class discrimination by the Federal Government But, aside from that, the classification made here was reasonable and was based on sound public policy. Upon appeal to the Federal Supreme Court the decision in the Adair case was reversed.^^ Mr. Justice Harlan held that the section in question was unconstitutional. He said : In our opinion that section, in the particular mentioned, is an inva « Statement of Mr. Clark. (Report of the Industrial Commission, Vol. iv, p no_lia " Brotherhood of Locomotive Firemen and Enginemen. Constitution, ©to „„ o o (1916). ^^■' pp. 2, 3 •'^Brotherhood of Railroad Trainmen. Constitution and General Rules, pp, i 2 (iqif-^ SBCUKD-STJTOE : THE ERDMAN ACT. 31 SETTLEMENTS UNDER THE LAW." For eight and a half years after its passage the use of the Erdman Act was attempted only once. And this resulted in a complete fail- ure. The first attempt to use the law came in a movement on the part of the trainmen and the conductors in and about Pittsburgh in 1899. Mr. P. H. Morrissey, grand master of the Brotherhood of Railroad Trainmen, requested mediation by the commission. The railroads refused to enter into mediation proceedings, and thus the first attempt to use the law ended in failure. No further effort was made to use the act until December, 1906. In a controversy with the firemen on the Southern Pacific Railroad the company, after a strike had been ordered for the following day, requested mediation by Judge Knapp and Commissioner Neill. From that time until the passage of the Newlands law in 1913 61 cases were settled under the Erdman Act. Twenty-six of these cases were adjusted through mediation, 10 by mediation and arbi- tration and six by arbitration alone. Of the remaining 19 cases some were settled without the inter- vention of the mediators but after their aid had been invoked, and others were cases in which the second party refused to accept the mediation by this commission.*'^ In some cases both parties to the controversy asked the aid of the mediators. Thus, in all, 61 requests for mediation were made to the board. The cases ranged in importance from those in whicli less than 100 employees were involved to those with more than 40,000 employees in one controversy. In the year 1910 there were nearly 80,000 employees and about 300,000 miles of road involved in 16 cases. The total of 61 cases affected more than 680,000 miles of trackage and over 250,000 employees. From 1906 to 1911 there were only 4 cases in which mediation was invoked directly and only 8 had to go to arbitration for a settlement. And even in those 8 cases only a part of the issues were settled by arbitration ; through mediation and conciliation the contestants had already agreed upon most of the points of difference between them and had submitted to arbitration only those on which they could not reach an agreement. There was never a repudiation of an award made by an arbitration board under the Erdman law. And in only one case was there an appeal to the courts from the decision of the arbitrators. In that case the employees appealed, filing exceptions to only a part of the award. They requested that the other parts of the decision be put into operation as rendered. The court, however, took the position that no part of the award could be enforced pending the adjudication of the controverted points. After four months the court handed down its decision in which some of the points were favorable to the men and other points were in favor of the railroad. Thereupon the employer appealed and the case was not settled a year after the original award had been handed down by the board of arbitration. Both parties had become exas- perated by this time and reopened the negotiations with each other. ™ Except where otherwise noted, data in this section are from D. S. Bureau of Labor Bui. No. 98, pp. 1-63. " U. S, Oommissloner of Mediation, ftnfl Conciliatipo, Annual Report, 1920. 32 USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES. In this way they finally reached an agreement, but 14 months had elapsed since the decision of the arbitration tribunal. This single instance, Commissioner Neill said, proved that the provision ot ttie law granting an appeal to the courts was of no real value. And, m the majority of the cases arbitrated subsequently to this experience, the parties agreed beforehand to waive the right of appeal to tne • courts. , It has already been mentioned that for a period of more tnan eight years from the passage of the law no proceedings, excepting that of the one case in which there was a failure, were held under the act. Judge Knapp explains this failure to use the act upon two grounds : First, the years following the passage of the law were years of general prosperity, a period when strikes are not to be expected ; second, the change was in part due to the great advance m public sentiment which demanded some sort of peaceable settlement of such controversies.*^ The application for mediation under the Erdman law was usually made by the employees in those cases in which the number of men involved was small and the railroad mileage short. This Com- missioner Neill attributed to the fact that in such cases the men believed that the railroads would be able to defeat them in the event of a strike. However, in the large movements, cases in which the men had the advantage and in which the employers could ill afford to run the risk incident to a stoppage by the employees, the management as a rule applied for mediation. ^° PROCEDURE UNDER THE LAW. In view of the relative importance of mediation under the law something should be said of the procedure adopted. The mediators refused to intervene in any case until they were satisfied that the contending parties had exhausted all their own resources to reach an agreement. If the application were made before the respective interests had done all within their power to effect a settlement, as it appeared to the mediators, Judge Knapp and Commissioner Neill refused to con- sider the dispute. In such cases they suggested to the contesting parties that they continue their own efforts toward an agreement.'" Had the mediators followed any other course it is likely that they would have been overwhelmed with insignificant matters that could better have been adjusted without outside intervention. Then, too, the action of the mediators was all the more effective because of the relative inf requency with which it was put to use. Commissioner Neill and Judge Knapp adopted early in their ad- ministration of the law a method of procedure which, as the results show, was a happy one. The contending representatives were never brought together until they had made such concessions to the me- diators that the difference could be adjusted. Commissioner Neill and Judge Knapp made it a practice to meet the representatives of each side separately and to find out what was the best that each ■^ National Association of Railway Commissioners. Ptoceedings of the Twentieth Anniinl Convention, p. 38 (October, 1908). ">V. S. Congress. House of Representatives. Committee on Imterstate and Foreipn Commerce, nlarings » • * H. R, 22018. pp. 2.4, 25 (1912). *orelgA s»Idem, p. 35. SECOND stage: the eedman act. 33 would concede. If the proposals from the two sides were such as to make agreement possible,, the commissioners would draw up a plan to be accepted by the disputants. However, as a rule, several meet- ings were required before things came to the point that the mediators could make a proposition to both sides. Commissioner Neill said that this procedure was responsible, in large measure, for the success of the mediation under the law. In the event of a failure to reach an agreement neither side knew what concessions the other side had been willing to make. Then, when the case went to arbitration, it would not be prejudiced for or against either side because of the points already yielded in mediation. Neither side could use as a lever the concessions already made by the other.^^ Something of the difficulty of operating the law can be- gathered from the testimony of Commissioner Neill. This testimony also shows what a tremendous strain the mediators were laboring under in the negotiations : I have sat for 14 days, beginning before 10 o'clock every morning and never concluding the last conference until after midnight any day, including both Sun- days, and on more than one night not getting through until 3 or 4 o'clock the following morning. I have sat through one conference beginning at 9 o'clock in the morning and eating sandwiches during the conferences, and adjourn- ing at 4 o'clock in the morning, and that at the end of a 10-day siege of it. Not only is there the physical strain, but in many cases * * * and I remember one case particularly in which, for four successive days, some representative of the organizations was sitting in a room across the hall from mine in the hotel with a strike order written on a telegram and signed by the head of the organi- zation calling a strike, with the instruction that the moment he received notice that the negotiations had failed the strike was to be put on the wire."^ The testimony of Judge Knapp is to the same effect : * * * But on more than one occasion it has been a nerve-rackiag expe- rience for days and nights — day after day and long into the night ; and I have sat around the table with a committee of men, discussing the question for days, when I feared that within the next 60 minutes every railroad in a large area would be tied up. No one who has not had that nerve-racking experience and felt the tremendous responsibility, because the public interests are greatly in- volved, can realize the satisfaction which comes when a settlement is reached, a settlement with good feelings on both sides and which restores a more friendly relation between the two parties than before existed for a long time."'' A valid objection to this kind of settlement is that it is based on what seems to be the easier plan rather than on the merits of the con- troversy; expediency rather than justice is the ultimate standard or basis for settlement. Judge Knapp was conscious of this weakness in the administration of the law. But he was so deeply concerned to protect the public interests in jeopardy that he considered it de- fensible to inflict a little of hardship in some instances if this be- came necessary. In other words, the individual should be willing to suffer for the common good in a' measurable degree.^* 5' U. S. Bureau of Labor Bui. No. 93, pp. 13, 14. ^2 U. S. Congress. House of Kepresentatires. Committee on Interstate and Foreign Commerce. Hearings on ♦ * * H. E. 22012, pp. 22, 23 (1912). =»Idem, p. 15. " " The most that we can do is to aim at a fair adjustment and in protection of tlie large Interests of the public bring the parties together on the best terms possible, which will end the controversy without delay. The commanding interest which we have in the controversy Is that it shall be settled and ended. The dangers attendant upon con- troversy are more serious as affecting public interests tlian the abstract rights of the contending parties. When large public Interests are involved, good citizens may properly be called upon for concessions of their purely private rights in the public interests." (.Tudge Knapp, in Proceedings of Twentieth Annual Convention of National Association of Railway Commissioners, p. 39. 1908). 79994°— 22 3 34 USE OF FEDERAL POWER IN RAILWAY LABOR, DISPUTES. But whatever may have been the objections to the action of Messrs. Knapp and Neill, they succeeded in preventing many strikes tnat otherwise would have come. In no case did a strike ever toilow a dispute m which -they had intervened.^^ And there was no instance in which the disappointed party to an arbitration award failed to comply with the decision of the board for the period agreed upon- In the arbitrations under the act the most difficult part ^as the selection of the neutral arbitrators. Although the law provided that the two representatives of the contestants should select the third member of the board within a period of five days from their own appointment, Commissioner Neill said there had been no case m which the mediators had not been called upon to select this third arbitrator. The two parties could not agree upon the neutral arbi- trator within the five-day period prescribed by law." It _^as very difficult for the mediators to select this third arbitrator. Dr. JNeill said he had traveled over the country and had spent weeks m the effort to find a satisfactory man.^^ Perhaps the greatest improvement made in the Erdman law as compared with the statute of 1888 was the provision made for the permanent commission of mediation and conciliation. In the law of 1888 the only commission provided for was that of the special in- vestigating board which was temporary and ceased to exist upon the filing of its report in the particular controversy investigated by it. In the Erdman act, however, Commissioner Neill and Judge Knapp were able- to make use of their experience in one controversy m the settlement of subsequent ones." In this way they acquired a high degree of skill and technique in the handling of labor dis:putes. They were easily able to separate the wheat from the chaff in the deman'ds made by each of the parties to a controversy, to know just how much each side would concede and what was demanded for the purpose of bargaining and higgling with a view to getting something by compromise. The members of the railroad brotherhood organizations frequently expressed their confidence in the members of the commission.^^ The ^ statement by Judge Knapp, in Mediation, conciliation, and arbitration in contro- Tersies between railway employers and their employees, S. Eept. No. 72, 63d Cong., 1st sess., p. 36. ^'Idem, p. 30. s'TJ. S. Congress. House of Representatives. Committee on Interstate and Foreign Commerce. Hearings on * * • H. R. 22012, p. 13 (1912). •" " I have traveled from one end of the country to the other two or three times and probably Interviewed five or six men, to be turned down by each one of them. I have spent SIX weeks in trying to select arbitrators and nearly four-flfths of that time I was trying to get a third arbitrator and was unable to And a man." (Idem, p. 20.) ^ Mr. Garretson, president of the Order of Railway Conductors, said, in 1913 : " The success or failure of anjr act of this character will always depend upon the personality of the men who administer it, and unless these men develop the qualities that are necessary for successfully acting the part of mediators the act is not worth the ink that it took to print it." " My own connection with the men who have acted as administrators lias grown up under the application of this act, and it is the personal qualities of those men tliat have contributed so largely, first, to successful settlement, where the mediator is able to make a successful settlement on account of the peaceful qualities that invoke confidence — abso- lute — on both parties, because mediation is absolutely founded on good faith and confidence and no other features will ever make it a success." (Hearings on S. 2517, S. Eept No' 72, 63d Cong., 1st sess., pp. 43, 44.) Mr. Stone, president of the Brotherhood of Locomotive Btigineers, offered his testimony ■ " If we could always be assured that Judge Knapp and Dr. Neill would be the two men who meditate and pass on these cases,, I would not care where you put it [the oflSce of mediation]." (Idem, p. 76.) siacoND sxage: the erdman act. 35 managers of the railroads also indicated gratification at the adminis- tration of the law by Messrs. Knapp and Neill.^" DEFECTS OF THE lAW. So far all the discussion in this paper would indicate that the Erd- man law was an unqualified success. That, though, would be putting the case too strongly. From time to time many suggestions were made for the improvement of the law. The number of arbitrators under the law, it was said, was too small. Q.uestions of such moment should not be intrusted to the decision of one neutral arbitrator. It Avas held that the public should haA'e a representation on the board that was larger than that of either party to the dispute. Objections were made to the provision for a court review of the award of the arbi- tration boards. It was suggested that the mediation and conciliation -commission should be composed of men who could devote their entire time and energy to the problem. The mediators, it was said, should be authorized to take the initiative in the work of mediation, and not have to wait supinely until called into the controversy, etc. AH these proposed changes and modifications will be discussed in the following chapter in connection with the legislative developments from the time of the passage of the Erdman law until the enactment of the Newlands law, which superseded it. CONCERTED MOVEMENTS. Before leaving the discussion of the Erdman Act, however, some consideration should be given the new development in the method of handling the labor situation by the railway labor brotherhoods. This device, because of the number of employees and the extent of the railway mileage involved, came to be known as the " concerted move- ment."' The employees had learned through experience that they had a better chance of winning if they grouped themselves together on a number of roads and presented their demands as a unit to the managers. The first of the concerted movements which the United States Mediation and Conciliation Board had to handle was that of the conductors and trainmen in the western territory. This case involved 42,500 employees and 101,500 miles of railroad. On March 28, 1907, the railroad companies applied to the Mediation Board for mediation. The conference began in Chicago on March 30, and on August 4 a settlement was effected by the Government officials.*^ Not until 1909 was there another important concerted movement by the railway employees. As a result of a controversy between the railways of the West and the firemen and enginemen, the railways appealed to the board for intervention, with a view to a settlement of the difficulty. Here 26,000 men and 110,000 miles of road were affected. On March 17 the board began proceedings in Chicago, and on March 23, after mediation and a settlement of some of the con- "> Vice President Atterbury, of the Pennsylvania Railroad, said : " The Erdman Act has been successful for the last five or six years, but it is due to the personal equation of Messrs. Knapp and Neill. Their handling of all the contentions thnt^avp been submitted to them has been of such an impartial and fair character that they haTOg^n^d til" "aspect not only of the railroads, but of the employees of the ''^"''^Comniissionw'keiil, in Bureau of Labor Bui. No.' 98, case 4, pp. 44, 45, 36 USE OF FEDERAL POWEB IN RAILWAY LABOR DISPUTES. troversy by mediation and the rest of it by arbitration, the settlement was made."^ . The men were so much pleased with the result of this movement that the conductors and trainmen of the East decided to launch a concerted movement in the hope of attaining a like result, ine railroad managers, however, refused to join the concerted action and meet the men as a body. Thereupon the men decided to center their efforts on one road at a time, in this manner Covering the entire ter- ritory ultimately. The Baltimore & Ohio Railroad was selected as the road on which to make a beginning.''^ The railroad asked the mediation board to intervene. On March 11 a settlement was effected through mediation.*"* The New Haven and the Boston & Maine Railroads settled on the basis agreed upon with the Balti- more & Ohio.''^ The next case involved the New York Central, ihis road made three propositions to the men : That the Federal medi- ators decide the controversy ; that it be referred to the chairman of . the chambers of commerce in the cities through which the road passed; that it be submitted to the Public Service Commission of New York State. The men refused to accept any one of these three proposals. Finally it was arranged that the whole matter should be referred to Mr. E. E. Clark, chairman of the Interstate Commerce Commission, and Mr. P. H. Morrissey."" The road accepted this plan as the only means for warding off what to the railroad would have been a less desirable situation. In the meantime the Lackawanna, the Delaware & Hudson, the Erie, and other railroads had agreed to abide by the decision ren- dered in the New York Central case. The result of this settlement was to standardize and to give to the men concerned practically the award that had been rendered in the Baltimore & Ohio case."^ Thus ■ the employees finally secured by action with the separate roads what they had planned to get by dealing with all the roads of the section as a unit. Another concerted movement was undertaken by the engineers of the western roads in 1910, 24,000 engineers and 115,000 miles of track . being involved in this controversy. The railroads applied for medi- ation, and on December 17 negotiations were begun in Chicago. This resulted in a settlement by mediation on December 24."* Probably the most interesting of the concerted movements of the period was the one begun by the Brotherhood of Locomotive Engi- neers on the 52 railroads or the East in the spring of 1912. 'Die parties concerned agreed to submit the dispute to a new type of arbi- tration board. This board was to consist of seven members, two of whom should represent the respective interests to the controversy. These two were to choose five neutral arbitrators. Should they fail within 15 days from the time of their appointment to agree upon the neutral members, these five were to be appointed by the Chief Jus- tice of the Federal Supreme Court, the presiding judge of the Com- "2 Commissioner Neill, in Bureau of Labor Bui. No. 98, case 29, pp. 50, 53. "" Locomotive Engineers' Arbitration, by W. J. Cunningham, in Quarterly Journal nf Economics,, Vol. XXVll, pjj^. 274-276 (Feb., 1913). Juurnai or »* Commissioner Neill, in Bureau of Labor Bui. No. 98, case 28, pp. 50, .51. '^Locomotiye Engineers' Arbitration, by W. J. Cunningham, in Quarterly Jonmni «f Economics, Vol. XXVIl, p. 276. ^ Journal of »» Idem, pp. 276, 277. «'.Idem, p. 277. «< Commissioner Neill, in Bureau of Labor Bui. No. 98, cnse 40, pp. 54, 55. SECOND stage: the ebdman act. 37 merce Court, and the United States Commissioner of Labor. In fact, they were appointed in the latter manner. This arbitration was the first one in which the public had received such a large representation on the board. Because of its report and the novel recommendations contained therein this was one of the most important arbitrations of railway labor disputes in the history of the country. Some of the recommendations and conclusions of the board. will be considered in the following chapter. The award was rendered on November 2, 1912. Early in 1912 the firemen and enginemen of the East made de- mands on the railroads. The roads were the same ones as those on which arbitration was had with the engineers. In all there were 67,000 miles of track, on which was hauled approximately 40 per cent of all the traiSc of the country. The roads proposed that they arbitrate the matter in the manner in which the engineers had done. To this the men objected on the ground that the neutral arbi- trators knew nothing about the technical side of railroading. The employees insisted upon arbitration under the Erdman law. The managers objecte4-that this method gave too much power to the one neutral arbitrator. When it looked as though a strike would be inevitable the roads yielded and agreed to arbitration under the Erdman law.'® The roads appointed W. W. Atterbury, of Philadel- phia, as their representative, and the employees selected Albert Phijlips, of Sacramento.'" The proceedings began on March 10, in New York City, and lasted .until April 5. On April 23 the arbi- trators handed down an award ''^ which was in the nature of a com- promise. This was the last of the arbitrations effected under the Erdman Act. The series of arbitrations has been given in some detail to show that the scope of the act was wide and that some significant results were reached through its operation. In another connection some of these arbitrations will be discussed to show how sentiment had changed with reference to arbitration and the kind of arbitra* tion desired. This, however, belongs to the next chapter. In studying the operation of the Erdman Act one can not escape the conclusion that it marked a great step forward in the evolution of a sane' method for the settlement of railway labor troubles in the United States. That it was a perfect piece of legislation was not believed even by its most ardent advocates. In fact, the law_ adapted to one period would not, perhaps, have suited a later period in which the conditions had changed radically. But for the period in which this law was on the statute books it probably met the needs of the time as well as any sort of legislation that might have been enacted at that time could have done. True, an act of this kind may not be adequate any longer to adjust the controversies on the rail- roads. But it has helped greatly in marking out the way that was to follow its operation, and ttiere are suggestions in the act which can well serve as a guide in shaping legislation in the future. Note —The report of the United States Board of Mediation and Conciliation (S. Doc. No. 493, 64th Cong., 2d sess. (1916)), contains a brief history and a description of the arbitrations under the Erdman law. =» L. W. Hatch, in American Yearbook, 1913, p. 415. ■ ^ »^ „ ^,, ^ ., - ™ Proceedings, Arbitration Between the Eastern Railroads and the Brotherhood of Locomotive Firemen and Enginemen, Vol. I, p. 3 (1913). CHAPTER IV.— THIRD STAGE: THE NEWLANDS ACT. DEVELOPMENT OF LEGISLATIVE CONSIDERATION AND VIEWS HELD AFTER PASSAGE OF LAW. The third stage in the development of Federal power in the settle- ment of railway labor disputes was reached in the passage ot the Newlands law on July 15, 1913.^ Before going into a discussion ot this law as such it will be well to note what consideration had been given to this question since the passage of the Erdman Act. iioth in Congress and in the world at large a great deal of discussion pre- ceded the passage of the law of 1913. . As early as December 6, 1899, a bill concerning carriers engaged m interstate commerce and their employees was -introduced m the Senate.^ This bill, however, did not get any consideration m the Senate, having died in the committee to which it was referred. In 1900 several evidences pointed to the popularity of the idea of arbitration. The platform of the Democratic Party for that year contained a plank m which arbitration of railway labor disputes. was advocated. And it was proposed that this arbitration be effected through legislative enactment.^ The same view was expressed by Mr. E. E. Clark, grand chief con- ductor of the Order of Railway Conductors, in a speech which he made to the Chicago Conference on Conciliation in 1900. He said that the experience of the men was such that they favored this plan for the settlement of their disputes.* Grand Master Sargent of the Brotherhood of Locomotive Engineers expressed his approval of arbitration as a means of adjusting these troubles.® The final report of the Industrial Commission in 1902 also com- mented on the settlement of railway labor .troubles. It was recom- mended in this report that the Erdman Act be made more specific and that some penalty be imposed on any party calling a strike or lockout before having submitted the controversy to a board of arbitration, or in the event of a refusal to arbitrate when arbitration was offered." 138 V. S. Stat., 63d Cong., ch. 6. ' Congressional Eecorfl, Vol. XXXIII, p. 90. ^ " We are in favor of arbitration of differences between employers engaged in interstate commerce and their employees, and recommend such, legislation as is necessary to carry out this principle." (National Democratic Campaign Handbook, presidential election of 1900,, p. 12.) * " We have submitted a good many cases and disputed points to arbitration and onr experience has been such as to commend the employment of that agency in settling sucli disputes." (National Conference on Industrial Conciliation, under the auspices of the National Civic Federation (December, 1901). Papers read at the Chicago conference of 1900, p. 222.) ^ " If each party to the controversy believes that its position' is fair, neltlier should „ object to the matter being presented to a disinterested party or parties to determine the merits of the case and to make the award. " To-day 175,000 railway employees stand pledged to arbitration, and in all questions affecting their wages or hours of labor, stand ready at any time, when unable to reach > a satisfactory conclusion with their employers through the medium of committees of the i employees, to submit any and all questions to arbitration." (Brotherhood of Locomotive; Firemen and Enginemen's Magazine. Vol. XXX, pp. 96, 97, January, 1901.) "n-nvt., = U. S. Industrial Commission. Final report. Vol. XIX, pp, 952, 953. 38 THIRD stage: the newlands act. 39 In the House of Representatives on June 18, 1902, a bill (H. E. 15157) to authorize the appointment of boards of arbitration and investigation, was introduced. The Committee on Labor made a favor- able report on the proposed bill.^ This measure was to secure the appointment of investigation committees such as were authorized by the law of 1888 — a provision which had been omitted in the Erdman Act. The committee making the report insisted that the force of public opinion would operate to prevent a strike or a lockout pending investigation under the auspices of the Government. However, no action was taken by Congress on this proposal. In 1903 the report of the Anthracite Coal Strike Commission, a commission appointed by President Eoosevelt to investigate and to recommend legislation to remedy the coal-strike situation, contained a recommendation similar to the one in the bill referred to above.^ Credit 'was given Mr. Charles F. Adams' for the conception of this plan. The man making this rqport advocated compulsory investi- gation. However,' this plan did not contemplate the outlawing of strikes prior to an investigation by the Government officials. The authors of the report thought that the mere existence of this machinery would operate to prevent strikes ; th6 force of public opinion would be so strong that no party could defy it in calling a strike or lockout. Mr. John Mitchell recognized the tremendous force of public opinion to accomplish such an end. He stated to the commission that no organi- zation could oppose with any degree of success a well-informed public sentiment, either as to a particular controversy or as to the methods of conducting a fight.^ In 1904 several bills were introduced for this kind of settlement (H. E. 9491, H. E. 11513, and S. 3259) . A subcommittee of the Com- mittee on Labor of the House of Eepresentatives held hearings on House bill 9491.^° According to the terms of this bill a national arbitration tribunal, consisting of the Secretary of Commerce and Labor and of five other meriibers tO' be appointed by the President of the United States, by and with the consent of the Senate, was to offer to investigate any controversy that threatened to interfere with the movement of interstate commerce. Although the railroad em- ployees were not the only ones to come under the operation of this law, their controversies would have constituted a large part of those with which the tribunal would have had to deal. ' H Kept. No. 2722, 57th Cong., 1st sess. ' U. S. Anthracite Coal Strike Commission. Eeport. S. Doc. No. 6, 58th Cong., special The committee said : " We do believe, however, that the State and Federal Govern- ments should provide the machinery for what may be called compulsory investigation of controversies when they arise. The State can do this, whatever the nature of the' con- troversy The Federal Government can resort to some such measure when difficulties arise by reason of which the transportation of the United States mails, the operation, civil or military,, of the Government of the United States, or the free and regular movement of commerce among the several States, and with foreign nations, are interrupted or directly affected, or are threatened with being interrupted or affected." (Idem, p. 85.) "• * * the public has the right, when controversies like that of last year cause it serious loss and suffering, to know all the facts and to be able to fix the responsibility. In order to do this power must be given the authorized representatives of the people to act for them by conducting a thorough investigation into all the matters involved in the controversy." (Idem. p. 87.) „ „ „ .. . „ , ,. „ ..^ » In statement by Dr. Neill : U. S. Congress. House of Representatives. Committee 'on Interstate and Foreign Commerce. Hearings * * • on H. E. 10840, p. 71 (December, 1906-January, 1907). „ .^^ ^ , „ , 1" U S Congress. House of Representatives. Committee on Labor. Hearings on national arbitration bill, H. E. 9491 (1904). 40 USE OF FBDEKAl, POWER IST RAILWAY LABOR DISPUTES. President Gompers, of the American Federation of Labor, opposed the passage of the bill, because, he said, it would simply be an entCT- ing wedge for the enactment of a compulsory arbitration law." On the other hand, many of the labor leaders of the country advocated the passage of the law.^^ But the gravity of the situation did not impress Congress sufRcientlv to bring about the enactment of the law. Although there was no congressional action of these bills, similar ones were introduced from time to time for the next few years Thus on January 12, 1906, Representative Foss, of Illinois, proposed House bill 11649. On February 5 of the same year Eepresentative McDermott, of New Jersey, introduced House bill 14003. On June 13 Eepresentative Beall, of Texas, proposed House bill 20180. In 1907 the following bills were introduced : House bill 4857, House bill 9172, and House bill 6246. No one of these bills received any report from the committees to which they had been referred. But during this period one bill did receive the careful considera- tion of the Committee on Interstate and Foreign Commerce. Hear- ings were held on House bill 10840 on December 14, 1906, and on January 22, 1907." The bill was practically a repetition of the one drawn in accordance with the ideas of Mr. Charles F. Adams, a plan calling for compulsory investigation. Many prominent men, including United States Commissioner of Labor Neill, appeared before the committee in advocacy of the bill. Commissioner Neill emphasized the desirability of getting publicity for the issues of the controversy. However, he did not want to deny to the men the right to strike pending the report of the investigating commission." Representative Townsend, of Michigan, for the com- mittee, reported the measure favorably to the House on February 25, 1907.^° But no action was taken on this report. Mr. Townsend did not despair of having his ideas incorporated in legislation by Congress. On January 28, 1908, he introduced another bill (H. R. 16447), which was substantially the same as the one which Congress had failed to consider previously. The committee reported the bill favorably on February 3. Mr. Townsend said : It is believed that in every strike or lockout one or tlie other of the parties is at fault, and. probably both are in a degree wrong. In these contests the public has no voice, and owing to its ignorance of the causes and conditions it can not exert the sentiment which would be controlling in controversies if it could be exerted." Incidentally, it is interesting to note that Representative W. C. Adamson, of Georgia, author of the Adamson law of 1916, in a mi- nority report opposed the passage of this bill. He declared that the law would result practically in compulsory arbitration. In the debate in the House on December 10 Mr. Townsend in- sisted that the bill did not provide for compulsory arbitration, but only for the investigation and the publication of the facts. He added, however: "U. S. Congress. House of Representatives. Committee on Labor. Hearinira nn national arbitration bill, H. E. 9491 (1904), p. 63. aimss iMdem, pp. 17-30. >" U. S. Congress. House of Representatives. Committee on Interstate and Wnreii^n ■ Commerce. Hearings on • • * H. .E. 10840. oreign » Idem, pp. 56, 67. ^ H. Rept. No. 8077, 59th Cong., 2d sess. i» H. Rept. No. 621, 60tli Cong., Ist sess., p. 1. THIRD stage: the newlands act. 41 * * * whatever may be the effect upon the employers and employees, it is our duty to legislate for the people. Special interests, however powerful, must, if needs be, give way to the public good. Neither capital nor labor would be safe under a Government controlled by any other principle. * * * We simply ask by this bill for a fair, just, and impartial publicity of the causes which bring disaster to the people whom we serve." The debate was somewhat spirited, but in the main centered around the question as to whether this would constitute compulsory arbitra- tion.^' A letter from Mr. Gompers to a Member of Congress con- demned the bill. A similar letter was sent by the representatives of the railway brotherhoods. On December 12, 1908, the House by a close vote refused to consider the Townsend bill.^^ Both President Roosevelt and the Eepublican Party were favor- able to the passage of a law similar to the ones which had been intro- duced in Congress. On December 5, 1905, President Roosevelt in his message to Congress said that every labor trouble involving inter- state commerce should be investigated by a Government commission and that the facts in the case should be reported to the public.^" In his message of December 4, 1906, he asked Congress to enact a law such as had been considered already. He gave his reasons as follows : In this age of great corporate and labor combinations, neither employers nor employees should be left completely at the mercy of the stronger party to a dis- pute, regardless of the righteousness of their respective claims. The proposed • measure would be in the line of securing recognition of the fact that in many strikes the public has itself an interest which can not wisely be disregarded; an interest not merely of general convenience, for the question of a just and proper public policy must also be considered. In all legislation of this kind it is well to advance cautiously, testing each step by the actual results ; the step proposed can surely be safely taken, for the decisions of the commission would not bind the parties in legal fashion, and yet would giye a chance for public opinion to crystallize and thus to exert its full force for the right."^ Again, in his message of December 3, 1907, Mr. Roosevelt com- mented upon the provision for the settlement of railway labor con- troversies.^^ He thought that the Erdman Act had been a success and that it should then be amended by legislation for compulsory investigation in those cases in which mediation and comciliation had failed. The framers of the platform of the Eepublican Party in 1908 called the Erdman Act " one of the most commendable accomplish- ments of the present administration." ^^ The failure of Cbngress to consider favorably the measures pro- posed served only to increase the zeal with which Mr. Townsend fought for the enactment of legislation of this kind. In 1909 he introduced in the House three bills for this purpose.^* But he again failed to get consideration of his bills. The Congressional Record shows that two similar bills were introduced by other Members of the House in 1909.== In 1910, House bill 22159 and House bill 25506 came before the House, and in 1911 three more bills, all dealing with this same sub- ject, were introduced.^^ "Congressional Record, Vol. XLIII, p. 117. ^ Idem, pp; 114-134. 1" Idem, p. 165. » Idem. Vol. XL, p. 94. 2^ Idem; Vol. XLI, p. 26. ••^Idem, Vol. XLII, p. 73. ^„^^ ■is Eepublican Campaign Text-Book, 1908 p. 463. ■^eist Cong. : H. E. 3038 ; H. R. 12221 ; H. R. 12376. » Idem, H. E. 18905 ; H. E. 3 6028. 42 USE OF FEDEEAL POWER IN RAILWAY LABOR DISPUTES. While no one of the above bills went further than the committees to which they were referred, this was not true of those introduced m 1912. During that year Senate bill 5901, House bill 22012, and House resolution 404 were introduced. The Committee on Interstate and Foreign Commerce of the House of Eepresentatives held hearings on House bill 22012. The bill had been proposed by Eepresentative Lee, of Pennsylvania. Ihe oc- casion for its introduction, Mr. Lee said, was the threatened strike of the coal miners in his State.^'' The bill was in reality an amend- ment to the Erdman Act. This act was to be extended m scope so as to bring within its operation the laborers in coal mines and all rail- way employees engaged in interstate commerce, whereas the Lrdman Act applied only to the railway employees in the train service. The work that had been done by the Commissioner of Labor and by the presiding judge of the Commerce Court was to be transferred to a commissioner of mediation and conciliation. This official, together with two other Government officials, appointed by the President, by and with the advice of the Senate, was to constitute a United States board of mediation and conciliation. The Erdman law had provided for an arbitration board of three members. The amend- ment was to increase the number to five, three of whom would repre- . sent the public. The court review, as provided in the original law, was to be eliminated.^^ The bill, as presented to Congress, had been framed by Judge Knapp and Commissioner N'eill. Both these men ap- peared before the committee and urged the passage of the measure. ^^ Judge Knapp told the committee .why he and Commissioner Neill had proposed the changes to be made in the law : * * * In proposing the measure to take the place of the Erdman law, , so-called, and as a result of our experience, Commissioner Neill and myself have had In mind three principal things: First. To enlarge the scope of the law so as to afford wider dpportunity for its useful application. Second. To simplify the law by leaving out everything not deemed essential to the accomplishment of its purpose; and this includes some minor changes of procedure, designed to give the law greater flexibility, so that it may be more readily adapted to varying conditions and different controversies. Third. To provide in place of the present mediators a board of mediation and conciliation, so constituted as to be able to meet this greatly increased demand which must certainly result from the proposed extension of the law. Judge Knapp insisted that five arbitrators, three of whom repre- sented the public, would be more desirable than the old arrangement with only one neutral member. It seemed to him that such a change would make the law more agreeable to both the managers and to the men. Commissioner Neill thought likewise. Judge Knapp and Commissioner Neill said that the court review provided for in the Erdman law had been a liability rather than an asset ; that there was no place for court action in an arbitration pro- ceeding; and that a law with this clause omitted would be more acceptable to all parties concerned. Commissioner Neill said that the objection of railroad managers to arbitration under the Erdman =" 62d Cong. : H. E. 54 ; H. E. 1238 ; H. E. 5139. ^ D. S. Congress. House ol Eepresentatives. Committee on Interstate and Foreiim :ommerce. Hearings • • <■ H. E. 22012 (1912), p. 3. uibisu ™Idem, p. 12 (statement by Judge Knapp). 2»Idem, pp. 6-36. THIRD stage: the newlands act. 43 law was due largely to the tremendous influence exercised by one neutral arbitrator. The measure .proposed by Messrs. Knapp and Neill was not passed in Congress at the time of the hearings noted. But in the law which was later enacted as the Newlands law many of the provisions pro- posed here- for the first time were incorporated. It is interesting, then, to note the provisions of this measure in some detail, for in it we find the origin of the amendments that later became law. The services of Judge Knapp and Conunissioner Neill have been dis- cussed in connection with the application of the Erdman law. Their long experience, an experience that was eminently successful, quali- fied them to appraise the Erdman Act at its real worth and to sug- gest the manner in which it should be amended. Representative Lee, of Pennsylvania, had also proposed another biU in the House. This one (H. R. 25109) contained the same pro- visions as did House bill 22012. On June Y, 1912, the Committee on Interstate and Foreign Commerce made a favorable report on the bill.^" It said that the new law was to be only an enlargement of the Erdman Act, so as to include coal miners and all the employees of the roads doing an interstate commerce business. The voluntary feature of the act was to be retained. No court review of the award should be had and the number of arbitrators might be changed, at the option of the contestants, to five. The new commission of media- tion and conciliation, as recommended by Messrs. Knapp and Neill, was to take over the work that had been done by these men under the old law. The committee insisted that the proposed changes would operate successfully and they gave the United States mediators the credit for having suggested the changes to be made. But the House took no action on the report of the committee. On February 15, 1913, Representative Berger, of "Wisconsin, pro- posed House joint resolution 401, to the effect that the Government take over and operate the railroads in the event of a strike.^^ On June 28 the Committee on the Judiciary of the House reported favor- ably, without comment, a bill to amend the Erdman Act.^^ But the proposition that finally led to action on the part of Congress was a bill (S. 2517, 63d Cong.) introduced by Senator Newlands, of Nevada, on June 13, 1913. Before giving any analysis of the above bills it will be well to note what consideration the people outside the halls of Congress had been giving to the question of strikes on the railroads and the remedies that had been suggested by them ; and also to examine the reasons for the demand that new legislation be enacted. President F. A. Delano, of the Wabash Railroad, expressed his criticism of the existing system and proposed a new agency.'''* His =»H. Rept. No. 853, 62d Cong., 2d sess. 31 Congressional Record, Vol. XLIX, p. 3222. ■^ H. Rept. No. 30, 63d Cong., 1st sess. ^' " As a matter of fact the decision of these questions InYolves a great deal of study. The man or men who should decide them should be largely freed from other responsi- bilities and chosen for a reasonably long term. A single able man, as has been demon- strated in the case of Canada, giving his whole time and thought to the adjustment of controversies between employers and employees, can do an Immense amount of good ; and where a law exists such as the Lemieux act of Canada, which provides for mediation and uses the authority of the Government to compel both sides to a dispute to desist from open hostilities until the matter has been fully ventilated and carefully Investi- gated, is an excellent thing," (The Railway Age Gazette, Vol. L, No. 14, pp. 825, 826. Apr. 7, 1911.) 44 USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES. statement was made in 1911 and represented the general attitude of the railway managers. He wanted to have a permanent arbitration court with authority to compel arbitration and to enforce the awarcl. Mr. Delano considered the problem one the nature of which callea for the administration of specialists, of men who, through tiieir handling of this kind of problem, had acquired the skill requisite to the realization of the purposes of the laW. The ^xperience of Canada in the operation of the Lemieux act seemed to Mr. Delano a safe guide for the United States in the provisions that should be made. . , , . ,, In answer to Mr. Delano, Mr. W. S. Carter, president of the Brotherhood of Locomotive Firemen and Enginemen, admitted the many defects of the Erdman law. However, he objected to t^i® ■'-'e- lano plan even more strenuously than to the Erdman Act, with all the shortcomings which he conceded to be present m the operation of the latter law.''* Mr. Carter said that nothing could be more objec- tionable to the laboring man than compulsory arbitration. Such a method of settlement, he said, would mean that the laborer would revert to a condition like that of the serf in the Middle Ages. Mr. Delano and Mr. Carter can fairly be said to represent,, respec- tively, the attitude of the managers and of the workers. In a refer- endum taken by the Eailway Age Gazette in December, 1912, a large majority of the managers expressed themselves in favor of some plan for the fixation of wages of railway labor by the Government .^= The majority of those of this opinion wanted to have one and the same authority fix wages and rates for traffip^. According to that plan the Interstate Commerce Commission woirld have had its scope en- larged. But if the work could not be doiie by the Interstate Com- merce Commission, they wished at least to have it done by some agency in cooperation with the Interstate Commerce Commission. They wanted coordination in the regulation of the income and the outgo of the roads — a proposition which made a very effective appeal on the basis of its logical analysis. Thus, it appears how radically the managers and the men had ex- changed positions with reference to the method of settling labor dis- putes. At the period under observation it was the managers who invoked the assistance of the Government and the employees who opposed Government activity as proposed. The reasons for the change in the attitudes of the managers and the men can be con- jectured with some degree of certainty. In the earlier period when the roads were opposing arbitration under the auspices of the Gov- ernment the railroads had not as yet been subjected to such stringent regulation. In such a condition the roads, should they lose in a con- test with the men for higher wages, could increase rates and there- with make up the deficit. Also the railway managers had been the stronger of the contestants in the earlier period. They felt them- =* " I know of no proposition which would be so distasteful to working people In any class of employment as compulsory arbitration, even though it could be legally enforced. Without assuming the role of a ghoul and digging from history's graveyard the skeletons of the workingmen a century old, it can readily be shown that when the courts dictated the wages and working conditions of the working people they enjoyed but little ^eater privileges than those of serfs. • • • Summing up the entire matter, it is evident that arbitration is a complex problem ; that it has many features tp be admired, others that can rightfully be questioned, and some that are justly feared by the working people." (The Railway Age Gazette, Vol. L, No. 17, pp. 979, 980. (igii i =«The Railway Age Gazette, Vol. LIII, pp. 1247-1255. "' THiED stage: the nbwlands act. , 45 selves able to win out in a fight with the men. Since that time the public has not only taken over the control of the rates charged by the roads, but it has become far more exacting in its demands as to the kind of service rendered. On the other hand, the employees formerly felt that they were too weak to secure their demands by the strike and that it was necessary to look to some higher authority in order to secure justice. Therefore, they preferred to risk their case in the hands of a board working under Government supervision. This new device of the concerted movement helped produce this change of view. This is such an effective weapon that the brotherhood leaders, after the discovery of its effects, no longer felt themselves on the de- fensive. They considered that in a contest on the larger scale they had a decided advantage of the managers. Therefore their reluctance to give up this weapon for their cause. No explanation of the passage of the Newlands law would be ade- Juate if it failed to take into account two controversies which were ought out in 1912 and in 1913, respectively. These were the contro- versy between the engineers and the railroads in the East and that of the firemen and enginemen with the roads in the same territory. Both these settlements have been adverted to in the preceding chapter. But it is necessary to discuss them from another point of view in this connection. Early in 1912 there was a concerted action by the Brotherhood of Locomotive Engineers on 52 railroads in the East.^" They demanded an increase in wages. When a strike vote was taken more than 93 per cent of the men voted to go out on strike in case the roads refused to grant their demands. Messrs. Knapp and Neill offered their serv- ices in an attempt to settle the dispute through mediation. In this they failed to get the desired results. However, they did arrange for a board of arbitration, to consist of seven members. One member should be appointed by each side to the contest and these two members should select the five neutral arbitrators. Should they fail within a period of 15 days from their own appointment to agree upon the neu- tral members these should be appointed by the Chief Justice of the Federal Supreme Court, the presiding judge of the Commerce Court, and the Commissioner of Labor. As it worked out, they were ap- pointed in the latter manher. The roads appointed Daniel Willard, president of the Baltimore & Ohio Eailroad ; the men appointed P. H. Morrissey, grand master of the Brotherhood of Railroad Trainmen. The neutral members were Oscar S. Strauss, Dr. Albert Shaw, Otto M. Eidletz, all of New York ; President Charles R. Van Hise, of the Uni- versity of Wisconsin ; and Frederick N. Judson, of St. Louis. This was one of the largest cases ever to arise in this country. In it were involved 52 railroads, aggregating more than 66,000 miles of track. The roads in question had nearly 40 per cent of the aggregate revenues and expenses of all the roads in the United States, and they had 47 per cent of the traffic ; they served a population numbering 42 per cent of that of the entire country. These figures show that the trouble was one the settlement of which was a matter of moment to the country and to the business »8 ExppDt where otherwise noted, data for the remainder of this section are from Report of the Board of Arbitration on Eastern Kailroads and the Brotherhood of Lpco- jiiotlve Firemen and Enginemen (1912). 46 USE OF. FEDERAL POWER IN RAILWAY LABOR DISPUTES. interests especially. But the part of the report that is of significance in this study is that containing the recommendations made by the commission, recommendations in their nature obiter dicta. In. all contests of this kind the commission insisted the interests of the public must be held to be paramount; "it is an mtolerable situa- tion when any grdup of men, whether employees or employers, have the power to decide that a great section of the country, as populous as all of France, shall undergo great loss of life, unspeakable suffer- ing, and loss of property beyond power of description through stoppage of a necessary public service." The report included an appraisal of the Erdman Act, which commended that clause making it unlawful for either side to an arbitration to^ call a strike or to inaugurate a lockout following the award unless 30 days' notice were given to that effect. But the two great weaknesses, it appeared to the commission, were the one making it obligatory to hand down a deci- sion within 30 days from the appointment of the board of arbitration and the failure to give the public adequate representation on the board. The remedy proposed by the commission was that the wages of all railway employees be fixed by a Government commission to be appointed for that specific purpose. This would have meant some qualification of the right of free contract, but a modification, it seemed to the members of the commission, justified on the basis of the public necessity involved. Mr. Morrissey presented a minority report in which he disagreed with many of the findings of the commission. He objected to the statistics used by the board as a basis, for the award, to the standard ;;; accepted, and to the analogy drawn by the board between the French ' strike, in which the men were called into Government service and detailed to run the trains, and a strike in this country. The last objection raised by Mr. Morrissey has been subjected to critical analysis. He based his position partly on the ground that the French strike involved all the railway employees, and not simply those in one branch of the service, a condition that could not end otherwise than in a tie-up of the entire transportation system of the jjj country. It has been suggested that the point raised by Mr. Mor- rissey is irrelevant; that the result isi tKe same in either event, a breakdown of the traffic; that a train can no more run without an engineer than it can run without any employees at all. The primary interest of the public is the movement of trains without interruption. Mr. Morrissey agreed with the majority that the Erdman law ■ needed amendment; that the number of arbitrators should be in- creased if the parties so wished ; and that the administrators of the law should be given the right, upon their own initiative, to intervene without first having been requested to do so by one of the parties to the dispute. He thought that it might be desirable to have a com- mission collect data to be used as a basis for the fixing of wages but he objected to giving such a commission the power to fix wages a power in effect, he said, to force arbitration on the employees. In general, it may be said that the award and the report met with' the approval of the majority of the railroad managers and of the public at large. The report of Mr. Morrissey probably expressed the attitude of the employees throughout the country, both those engao-ed THIRD stage: the newlands act. 47 in the operation of trains and those in other lines of employment. President W. G. Lee, of the Brotherhood of Railroad Trainmen, characterized the decision as " one of the most pronounced failures that had ever been experienced in the labor field." " The chief ob- jection of the brotherhoods seemed to be that the board went out of its way to make recommendations which did not pertain to this par- ticular controversy. This position of the railway labor organiza- tions resulted in the limitation placed upon the boards of arbitration authorized by the Newlands law, a provision to the effect that the arbitration board must limit its tindmgs to the particular issues in- volved. It will appear also in the discussion of the Adamson law .that the same attitude of the railway labor organizations was re- sponsible for the definite limitation placed upon the scope of activity of the Eight- Hour Commission authorized by that law. This arbi- tration was significant, however, 'because it had much to do with the shaping of public opinion in this matter and its influence was felt in framing the Newlands law and also in the legislation that has been proposed in Congress since that time. The other controversy referred to above was that between the Brotherhood of Locomotive Firemen and Enginemen and the Eastern railroads. Negotiations had begun between the parties in 1912, at the same time that the engineers began the consideration of a strike. The firemen and enginemen, as a result of a failure to make an agree- ment with the managements, voted by over 96 per cent to go out on strike.^' The employers proposed arbitration like that accepted by the engineers. The men objected to arbitration except under sanction of the law and proposed arbitration under the Erdman law. But the employers considered the issue of too great importance to be in- trusted to the arbitrament of one neutral arbitrator. Finally, in order to prevent the strike, the managers yielded and accepted arbi- tration under the Erdman law.^^ In accepting the arbitration as per the plan of the men the railroad, managers did not express approval of that method of settlement. It was simply a case of accepting arbitration under the Erdman law or else having upon their hands a strike of large proportions. The roads were not in a position to fight the issue to a successful conclu- sion, and this was a situation in which discretion proved the better part of valor. The settlement effected was not satisfactory to either of the parties involved. This was shown clearly in the agitation that increased among both the men and the employers for a change in the Erdman law. PASSAGE OF THE NEWLANDS ACT. IS CONGRESS. During the arbitration of the firemen's case the conductors and trainmen in the East presented demands to the roads for increased pay and for changes in working conditions. Failing to get assent to their demands, they ordered a strike vote. The result showed that " U S Coneress. House of RepresentatlYes. Committee on Interstate and Foreign Commerce. Hearings * » • on H. K. 19730, 64th C5ong 2d sess., p. 46 (1917). =» Proceedings, Arbitration Between the Eastern Railroads and the Brotherhood of LocomotiTe Firemen and Enginemen, Vol. I, p. 3 (1913). ., '" Li. W. Hatch, in American Tearbook, 1913, p. 415. 48 USE OF FEDERAL, POWER IN RAILWAY LABOR DISPUTES. nearly all the men f avorea striking in order to force the acceptance of their demands.^" In order to prevent a strike that would have Deen a serious matter for the entire country, President Wilson caUea a conference of the two parties to meet him in Washington. ims was the first of such conferences called by President Wilson, but it was not to be the last one. The representatives of the contestants agreed that if the bill then before Congress (S. 2517) were enacted they would submit the controversy to arbitration under the ternas ot the new act.*^ This supplied the stimulus that was the immediate cause of the passage of the law known as the Newlands law. The Senate- Committee on Interstate Commerce held public hear- ings on this bill on June 20.^^ At this meeting Hon. teeth l^ow, Judge Knapp, and members of the railway brotherhoods testihed. All these men, without exception, advocated the adoption of the changes proposed in the Erdman law. These changes are the ones that have already been suggested, namely : An increase in the number of arbitrators that might be used ; the creation of a United btates commission of mediation and conciliation to take over the work that had been done by Judge Knapp and Commissioner Neill ; authoriza- tion for the board to take the initiative in settling controversies; provision for the interpretation of the award in the event of a mis- understanding of it ; permission to extend the length of time v^ithin which the board must reach a decision, etc. Senator Newlands, of Nevada, on June 23 reported the bill to the Senate, recommending its immediate passage.** Several of the Sen- ators, speaking for the adoption of the measure without delay, em- phasized the importance of the controversy then being waged and asked that the bill be enacted into, law without any needless dis- cussion the following day. The only point on which there seemed to be any real difference of opinion was that of the amount of com- pensation to be granted the members of the new commission.*^ The bill passed the Senate without amendment on June 26.*" On July 15 the House of Representatives began consideration of the bill that had passed the Senate. The speakers to the proposition were unanimous as to the advisability of passing the bill presented. Some members expressed regret that there was not time in which to incorporate into the law an amendment giving the public a larger representation on boards of arbitration. Since the bill in its then form had already passed the Senate and the approval of those to be affected had been secured, and since the speedy enactment was desired to avert the impending strike, the House passed the measure.*^ The President approved the bill on the same day.** PROVISIONS OP THE LAW. The law as enacted should in reality not be regarded as a piece of new legislation. It is the old Erdman Act amended and amplified. ■" L. W. Hatch, In American Yearbook, 1913, p. 416. *' Idem. ^ U. S. Commissioner of Mediation and Conciliation. First Annual Report H Dnc No. 1423, 63d Cong., 3d sess., pp. 5, 6. 1914. «S. Rept. No. 72, 63d Cong., 1st sess. (1913). "Congressional Record, Vol. L. pp. 2133-2135. «Idem, pp. 2178-2182 (June 26, 1913). "Idem, p. 2182. "Idem, pp. 2430-2442. '"Idem, p. 2471 (July 18, 3813). THiKD stage: the newlands act. 49 As a result of the recommendations made in the engineers' award and the disappointment of the labor interests thereat the new law pro- vided that the board of arbitration should limit its decision to the issues involved and not make any excursions into obiter dicta. ) Con- gress did not adopt the amendment which had been recommended by the administrators of the Erdman Act involving the removal of the provision calling for a review of the decision of the arbi- tration board by a court. Enough has already been said in con- nection with the discussion of the bills as they came up for the consideration of Congress to make it unnecessary to state in detail the terms of the new law. For its provisions the reader is referred to the appendix of this monograph. EXPRESSIONS or OPINION EVOKED BY PASSAGE. There does not seem to have been any very unfavorable criticism of the Newlands law when it was enacted. To say that it met the needs of. the situation adequately would be to state the case too strongly, however. Probably as clear an expression of the growing public sentiment as can be found is given in an editorial of the Ke- view of Eeviews for August, 1913 (p. 146) : It will be necessary some time to put the railway service in a position where the concerted strike will be impossible. Railroads are just as essentially a public character as are forces of policemen and firemen or the postal clerlss and carriers. The strike is not a proi)er weapon to be used by men in such employ- ments. A concerted railroad strike would necessitate the operation of the rail- roads by military power, in order to supply the people of the cities with food and other necessities. Since, however, the strike is not. morally permissible under these circumstances, there is the more reason why the public should see that railroad servant*' have exceptionally good treatment as regards wages and all conditions of employment and service. On reasonable terms and at proper intervals they should have opportunity to secure arbitration of all well-formu- lated claims and demands. PERSONNEL OF THE BOARD OF MEDIATION AND CONCILIATION. The members of the Board of Mediation and Conciliation ap- pointed by President Wilson were Judge Martin A. Knapp, who, with Commissioner Neill, had administered the Erdman law, and Judge William L. Chambers, who had been the chairman of the ar- bitration board in the controversy between the railways and the fire- men and enginemen of the East. Mr. G. W. W. Hanger was to be assistant commissioner of mediation and conciliation, Judge Cham- bers having been designated as the commissioner.*^ OPERATION OF THE NEWLANDS ACT. There is nothing novel in the procedure under the Newlands law. Already, in the administration of the Erdman Act, Judge Knapp and Dr. Neill had formulated a plan by which they proceeded in the adjustment of disputes. This method has, in the main, been followed in the administration of the Newlands law. The presence of Judge "US Commissioner of Mediation and Conciliation. First Annual Report. H. Doc. No. 1423, 63d Cong., 3d sess., p. 2. 1914. 79994°— 22 4 50 USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES. Knapp on the board made it possible to profit by the experience m the operation of the earlier law. _, The case which occasioned the passage of the law was adjusted under its terms. Immediately upon the appointment of the new board its services were offered to the contestants. The effort to settle the dispute by mediation failed, but as the parties to the controversy had promised to do in the event of the enactment of the law, they agreed to arbitrate under its terms. This agreement, however, was carried out only with great difficulty. The railroad managers pre- sented counterclaims, which they insisted should be arbitrated along with the demands of the men. To this the men objected, and the managers finally yielded and agreed to arbitrate only the demands made by the men and which were the immediate cause of the contro- versy. The neutral arbitrators in this case were Hon. Seth Low, of the National Civic Federation, and President John H. Finley, of the City College of New York. The award of the board was rendered on November 10, 1913, and went into effect immediately.^" But this arbitration did not prove altogether satisfactory to the men. Mr. Sheppard, who served on the board as the representative of the men, said that the arbitration was a failure. He admitted that the men serving as neutral arbitrators were of the highest char- acter. However, not being trained in the technique of railroading, they were unable to write a decision which was not subject to the wrong interpretation by the managers. Mr. Sheppard said that the men had never been able to get a satisfactory award except when their representatives sat face to face with the representatives of the managers and told them exactly what each proposition meant.^^ Mr, Garretson, in 1916, said that the men objected to arbitration because the interpretation of the award was always left to' the employer. And this, according to Mr. Garretson, was equivalent to a denial of the real benefits contemplated for the men in the award.^^ Experience has shown that in the operation of the Newlands law, just as in that of the Erdman Act, mediation has been of more importance than arbitration. In the 4-year period ending June 30, 1917, the board served in 71 controversies. Fifty-two of these were settled wholly by mediation, six by mediation and arbitration, three by the contestants without the aid of the mediators, one by act of Congress, and one at the time of making the report was yet unset- tled.^^ It will be seen, therefore, that the board had succeeded in getting adjustments in 58 of the 70 cases settled up to June 30, 1917. ™U. S. Commissioner of Mediation and Conciliation First Annual Report. H. Doe. No. 1423, 63d Cong. 3d sess., pp. 5, 6. 1914. SI " The two gentlemen, well known and wen versed In most of the sciences and Ideas of the day, found themselves completely at sea, and so admitted, in regard to the technique and details of the railway problem. They wrote in very choice English, U you please, rules that they thought would serve the purpose." But, Mr. Sheppard went on to say, the raUroad managers placed the wrong Intemreta- tions on these rules. " The only time the brotherhoods have been able to get a satisfactory settlement of any question which we have had up has been when the brotherhoods' representatives have sat face to face with the managers and said to them : ' This rule means so and so It should be agreed m such and such a way.' The railroad managers have flnallv said, ' Yes. Even then we have difficulty in having their memory serve them properly '' (U. S. Congress. House of Representatives. Committee on Interstate and ' iforpien Commerce. Hearings on H. R. 19730, 64th Cong., 2d sess., p. 162. (January, 1917 1 ^ 5^8. Doc. No. 549, 64th Cong., 1st sess., p. 32. ^- ^'■(■) »U. S. Board oif Mediation and Conciliation. Report for 1913-1917, p. 3 (1918). THIRD stage: the newlanCs act. 51 The report submitted to the President by the commissioner of mediation and conciliation on December 1, 1919, presents the follow- ing tabulated summary of the results of its activities : ^^ NUMBER or CASES, AND OP RAILROADS AND EMPLOYEES INVOLVED THEREIN, CONSIDERED BY THE UNITED STATES BOARD OF MEDIATION AND CONCILIATION, 1913 TO 1919. Item. Number of cases. Railroads involved. Employees Involved. Services of board requested by- Railroads Employees Jointly , The public Services of board tendered to railroads and employees jointly in the absence of any request Total 392 85 60 2 67 477,667 23,211 21,401 135 98,396 620,810 The same report gives the disposition of the cases : Settled by- Mediation alone 70 Mediation and arbitration 21 91 The parties before mediation began 11 The parties after mediation began 8 19 Congressional action (Adamson law) 1 Ill Mediation suspended or discontinued 3 No action taken by board because existing controversy did not come within provisions of Newlands law 11 Controversy abandoned by employees 2 Agreements on some points reached in mediation and mediation discon- tinued because of the roads being taken under Federal control 2 Removed from jurisdiction of board before mediation began because of roads being tal'en under Federal control 14 Services of board declined by — Railroads 2 Employees 1 3 — r- 35 Cases pending 2 Total number of cases 148 A comparison of the board's figures as given for June 30, 1917, and for June 30, 1919, shows that the settlements by mediation had increased by the addition of 18 cases and those by mediation and arbitration by the addition of 15 cases. These additions represent, therefore, the work of the board for a period of two years. It should be noted, however, that the settlements through the agency of the board in the years 1918 and 1919 did not, as a rule, involve large numbers of employees. The maximum number of employees in any single case in which the aid of the board was invoked in the year 1918 was 2,939.^= From this maximum the number ranged to a mini- mum of six.^" The controversy in which the 2,939 employees were » D S Board of Mediation and Conciliation. Report on Operations, 1913-1919, pp. 24, 25. ^= Idem, p. 50. 68 Idem, p. 51. 52 USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES. involved, however, was not settled by the mediation board, the road having been taken under Federal control before any settlement was made. The largest number of employees reported in any contro- versy in 1918 in which the board actually svicceeded in getting a settlement was 393, a controversy between the telegraphers and the Denver & Eio Grande.®' The figures for the first half of 1919 show only two cases settled by mediation of the board, the total number of employees being only loS.*^* Only one arbitration under the law was held in 1918 and no case is rejjorted for 1919.^^ During these two years, however, ma- chinery was set up by the Railroad Administration to deal with the specific problems of adjustment arising during the war period and this machinery was quite extensively utilized. These figures show that the Newlands law has been called into operation more, frequently than the Erdman Act was ever used throughout its entire history. This can be explained, however, by reason of the fact that the Newlands law happened to be on the statute books at a time when contestants to disputes of the kind dealt with under the law were willing, to' try this method of settle- ment. It will be recalled that the Erdman Act was not used at all for more than eight years after its passage. But after its first use in 1906 it was invoked with increasing frequency. The report of the Board of Mediation and Arbitration for 1914 says that from 1901 to 1905 there were 329 Strikes affecting railway employees.^" It should be remembered, however, that of these 329 strikes not all were called by men in the train service, the only railway employees coming within the scope of the operation of the Erdman law. Yardmen and employees of the roads other than those actually engaged in the oper- ation of trains were not affected by the law. Further, it should be noted that in the period in which these strikes occurred the parties to railway labor controversies had not as yet accustomed themselves to the use of governmental machinery in the settlement of their disputes. Because of its direct bearing on the opinions of the several inter- ests to railway labor controversies something should be said of one arbitration in particular, that between the Brotherhood of Locomo- tive Engineers and the Brotherhood of Locomotive Firemen and En- ginemen and the railroads of the West." This controversy involved 98 roads. In October, 1913, the railway labor organizations re- quested an improvement in working conditions and an increase in wages. The United States Board of Mediation and Conciliation failed to get the contestants to settle through mediation, but did suc- ceed m having them agree to arbitrate under the Newlands law. The appointment of the neutral arbitrators was made by the Media- tion Commission. It selected Judge Pritchard, of North Carolina, and Hon. Charles Nagel, of St. Louis. Mr. Nagel had been Secre- tary of Commerce and Labor in a former administration The pro- ceedings began on November 30, 1914, in Chicago. The agreement =«Fdem ^"'"s °' *^r"^^°°'^ *''?' Congress has been the submissive victim of a ?hi iS?«„t,'= \;X\^ ^= l*'^^'' ^? averting of the strike was worth such a sacrifice of ^»^hrfr nwn^nli,„L?-.'"'?^*i'"'xT"??'' ""^^""^ w«^ l^avB it to patriotic Americans to P®I?..*,SS"^ °^° 3i'3f°jent. (The Nation, Vol. CIII, p. 213 Sept 7 1916.) ,r,pt n^^^n^fl'„\^?=inJ'°^ °^'"°/^I,,<"^ "^t"'^' "S^^t *» Srgailie, or^to control the lives of ?,?' °/J:° ^^ business, or to further the interests of a class in defiance of the general will of the people organized as a sovereign State uBua.uv.e ui lub geuciiii i,^"J^<.^t^I^''„?h J ^^^^7 °f men in overweening confidence, asserts a right and proceeds ^IZiS.fSL?! ^^^cf "^h'^*"V?^*y civilized order, as Chairman Straus ft *?i^ ^S^ti^uZV^^ Commission admirably put it the other day, is tHe supreme right. rouuTH b'i'AGt;: the adamson law. 63 hood leaders to the leaders of the French Eevolution and pictured them as imposing their wills upon the whole American people.^^ A referendum taken by the Chamber of Commerce of the United States in June, 1916, showed the feeling of the business interests of the country toward the impending strike. In that referendum the vote was more than 97 per cent in favor of an investigation of the railway labor situation by the Interstate Commerce Commission.^" Later, in a referendum vote taken in February, 1917, more than 98 per ce;it voted in favor of requiring Government investigation before the ordering of a strike or a lockout on a railroad. More than 95 per cent voted to give the public, as having paramount interest, a majority representation on any investigation commission. It was also voted to recommend to Congress the establishment of a statistical division of the Interstate Commerce Commission to study and to compile statistics as to wages and as to conditions of service on the railroads. These statistics were to be made available for the use of the investigation commissions.^' BESPONSIBIIITY FOR PASSAGE OF THE LAW. As to the responsibility of the labor organization for the passage of the Adamson law, Mr._ W. S. Carter, president of the Brotherhood of Locomotive Firemen and Enginemen, testifying before a com- mittee of Congress in January, 1917, said : I want to say that at no time during the negotiations with the managers committee, at no time when we were before the President of the United States or before Congress, did we invite legislation, but we did not hesitate, and I do not hesitate to say here that when we were asked if the Adamson law were enacted if it would prevent a strike we said " Yes." '* Mr. Warren S. Stone, president of the Brotherhood of Locomotive Engineers, in his testimony of September 23, 1919, at a Senate hear- ing, insisted that the railway labor men did not ask the passage of the Adamson law ; they only consented to its passage. He said : But it was not our law ; we did not have anything to do with the framing of it ; we did not want it, and it was simply choked down our throats as a settle- ment of the case * * * and it never tasted good, and it does not taste good yet. I want to make that clear."® Similar statements have been made from time to time by the other leaders of the railway brotherhoods as they had occasion to express themselves on the Adamson law. President W. G. Lee, of the Brotherhood of Railroad Trainmen, in answer to a question as to whether he had ordered a strike prior to the passage of the law, replied : Absolutely ; and now I wish to God that, regardless of the Adamson law, I had never recalled it.™ ■-^The Railway Age Gazette, Vol. LXI, p. 394 (Sept, 8, 1916). ,„ -,aia '" Chamber of Commerce of the United States. Special Bulletin, June 16, 1916. 2»TT^W' Conerpss " House of ' Representatives. Committee on Interstate and Foreign Commerce H^finks 5i * • * H. R. 19730, 64tli Cong., ?d sess., p. 107.. S^U S Senate 66th Cong. Committee on Interstate Commerce. Hearings on S. '^Vf ConFresl°° House"of Re?retent"tlves. Committee on Interstate and Foreign Commerce. Hearings on • • » "^ H. R 19730, 64th Cong., 2d sess., p. 71. 64 USE OF FEDBEAL POWER IN RAILWAY LABOR DISPUTES. WHY THE BROTHERHOODS REFUSED ARBITRATIOW. Mr. Carter, in January, 1917, prepared what is, perhaps, the most complete statement of the position of the men as to why they had refused to accept arbitration with the managers.^*^ He gave six rea- sons for the position taken : (1) The roads had manufactured a pub- lic opinion that would have been hostile to the men; (2) the stand- ard of the United States Board of Mediation and Conciliation for the selection of neutral arbitrators had proved in the Nagel case to be unfair and partial; (3) the statistical evidence presented by the roads, although partisan and not scientific, would have overwhelmed the neutral arbitrators ; (4) the influence of precedent would have operated against the men; (5) "the railroads, while proposing arbitration, refused to permit about 75 of the smaller roads to participate in the arbitration. Where these roads believed that the small number of employees made it possible for them to win a strike they refused to delegate authority to the railroads' com- mittee to include them in the arbitration. The employees were not willing to arbitrate for only the larger roads. Furthermore, the railroads refused to permit the locomotive hostlers of about 18 roads to participate in the proposed arbitration. Also, the railroads re- fused to include in their proposed arbitration white foremen, brake- men, and hostlers on many railroads and no colored employees. No Negro employee was to benefit by. the arbitration"; (6) the award would have been administered by the managers in accordance with their own interpretation of its meaning. Most of these objections have been alluded to already in other con- nections. The objections stated in No. 5 have been given in Mr. Carter's own words, because they should be examined with more care. First, as to the failure of the railroads to include the smaller roads in the arbitration. Mr. Elisha Lee, for the conference com- mittee of the railroads, said that some of these roads had been un- willing to enter the arbitration ; the employees on some of them had not wished to enter ; and on many of them the managers had agreed that, in the settlement with their own employees, they would abide by the result of the arbitration. Mr. Lee said that the conditions were quite different on the smaller roads from those on the larger roads and this in itself justified the course that had been followed by the managers.**^ The altruism of Mr. Carter's objection that the managers did not include certain classes in the proposed arbitration, prominent amon^ which was the Negro, has been questioned in view of the fact that none of the four leading railway brotherhoods at the time this claim was made would admit Negroes to membership in their ranks.^^ Considering the question froni all aspects, it seems that the railroad officials recognized that a nation-wide concerted movement stood every chance to defeat the managers if a strike were called. For that reason they were anxious to have the trouble arbitrated. On the other hand, the men recognized the powerful economic weapon they had in the concerted movement, and they were unwilling to exchange this "Bui. No. 1, Publicity Dept. Brotherliooa of Locomotive Firemen and Enelnprnor, i„ Locomotive Firemen and Enginemen's Magazine, Vol. LXII, p. 14 (Jan Ifi tIiti ' * "' S. Doc. No. 549, 64th Cong., 1st sess., pp. 81, 82. ' ^^-^ ' ' ■ «»U. S. Industrial Commission, Report, Vol. IV, p. 118 (1900). FOURTH stage: THE ADAMSON LAW. 65 for a method which had not given them all they wanted in the past. Both sides, after having reached a conclusion as to what would best serve their purposes, readily found reasons which they presented to the public in justification of the positions assumed by them. This is not to impugn the motives or the integrity of the men on either side. But, serving in the capacity of counsel to themselves, they presented their respective cases in the light that would best serve the pur- pose they had in mind, i. e., winning out in the contest. It appears that this was not an instance in which the conclusion was reached as a result of weighing the evidence in the scales of justice, but rather in the practical scales of expediency. VIEWS OF UNORGANIZED RAILWAY EMPLOYEES. The railway laborers who were not members of the brotherhoods did, not favor the passage of the Adamson law. In July a petition was started by these employees as a protest against an increase in wages for the members- of the brotherhoods unless wages for the un- organized employees were also increased. They wanted to share in the good fortune that was to come to their fellow workers. This pe- tition was presented to President Wilson with nearly 100,000 signa- tures. The petition said : We should not be made to sufEer for the purpose of obtaining an increase of pay (for that is the sum and substance of the demands) of that 16 per cent already receiving wages far in excess of the average received by us, the 84 per cent. We appeal to the sense of justice of the American people, of whom we are and with whom we rest our case, shall this injustice be permitted.** On December 5, 1916, a petition from the so-called 80 per cent was sent to Senator Newlands.^® The petition asked: (1) That a Government commission make a thorough investigation of hours of service and the wages paid to all railway employees; (2) that this commission be empowered to fix the wages paid railway men ; (3) that in order to prevent strikes the law should provide compulsory arbitra- tion. Similar petitions were presented from others who claimed to represent the 80 per cent.'" Representatives of organized employees contended that these peti- tions had heen signed by the unorganized employees at the direction of the managers and through fear that they would lose their posi- tions if they refused to sign,'^ but no proof was offered in support of this statement. BROTHERHOODS AND THE RIGHTS OF THE PUBLIC. The report of the Straus commission which arbitrated the con- troversy in the East in 1912 had, as indicated, given a great deal of consideration to the interests of the third party, the public, in contro- versies between the roads and their employees. In the earlier period the leaders of the brotherhoods were ready to admit the priority of the public interest in such controversies. As recently as 1913 Mr. A. B. Garretson, president of the Order of Railway Conductors, MThe Railway Age Gazette, Vol. LXI, pp. 251, 252, 338. «5 Congressional Record, Vol. LIV, p. 37 (Dec. 6, 1916). soidem, pp. 38, 137 (Dec. 6, 8, 1916). « B. Doc No. 549, 64tli Cong., 1st sess., p. 29. 79994°— 22 5 66 USE OF FEDEEAL POWER IN BAILWAY LABOR DISPUTES. said that the public had an interest.^^ He went so far as to agree that the interests of the public, where threatened by a strike, were as great as those of the men and of the managers, and that the pub- lic should have representation on the boards of arbitration. But, Mr. Garretson held, the public did not have a right in the case unless there was some danger to the public. This would seem to have been an admission of the public to a right in all strikes, because a strike without the possibility of inconvenience to the public and of inter- ruption of traffic would be no strilie worth calling. Whatever may have been the position of the railway employees in the early days of labor difficulties, some of the labor leaders have since affirmed that the public had nothing to do with a proposition of this nature in which it was not involved as one of the parties directly connected with the dispute."*^ SETTLEMENT THROUGH THE COUNCIL OF NATIONAL DEFENSE. According to its provisions the Adamson law was to become effec- tive on January 1, 1917. When a lower court declared the law un- constitutional the men again threatened to go out on strike to secure the demands made originally.*" The strike was to begin March 17 at 7 p. m. President Wilson appointed a committee representing the Council of National Defense to settle the trouble. The committee consisted of Franklin K. Lane, Secretary of the Interior; William B. Wilson, Secretary of Labor; Daniel Willard, president of the Baltimore & Ohio Railroad ; and Samuel Gompers, president of the American Federation of Labor. The committee secured a postpone- ment of the strike until March 19. On that day a settlement was reached. The terms of the agreement gave the men what the Adam- son law had provided for them. This law was still in the courts. Thus, the men finally secured the eight-hour day without getting it through legislation. But the passage of the Adamson law probably made it easier to force the managers to accede to this solution. How- ever that may be, it remains true that this trouble was settled by mediation, a mediation proceeding greatly influenced by the fact that the European War made it absolutely necessary to get together on some working basis. But this settlement was in no manner af- fected by the United States Board of Mediation and Conciliation established by the Newlands law. ADAMSON LAW IN THE COURTS. In the latter part of 1916 the railroads, began many siuits in the courts for the purpose of testing the validity of the Adamson law. =" " The public has an interest, bear in mind. We all recognize that the public has an interest whenever the public interest is threatened. As long as the public interest is not threatened, then it is a private war between employer and employees but the minute that the private war threatens the' public, the public comes into exactly the same relation to it as we do, and their rights are as great as ours ; and we sav that they are entitled to just the same representation on this board that the other intpreata are." (S. Rept. No. 72, 63d Cong., 1st sess., pp. 44, 45.) interest » The Railroad Trainman said : " • • • It seems unnecessary to sav that the Trainman does not agree with the notion that the public has a right to be represented in a presentation of a case before a board of arbitration between the railroad comnanips and their employees any more than it has a right to such represemtatiou on anv board of arbitration with the business of which it has nothing to do." (The Railroad TTninmoTi A^ol. XXXIII, p. 91 (January, 1918).) J-rdinman, « Report of the Eight-Hour Commission, p. 10 (1918), JJUUKXil aXACJE: THE ADAMSONLAW. 67 The Attorney General of the United States made an agreement with toe railroads whereby one of these was to be a test case before the l^ederal buprema Court. The managers agrBed to keep their books in such maimer that the men could be paid their back wages from January 1, 1917, should the law be upheld by the court.*" WILSON V. NEW. The case selected to test the law was Wilson v. New." Arguments in this case were heard on January 9 and 10, and on March 19, the day upon which the controversy had been settled by the Council of Rational Defense, the Supreme Court of the United States handed down its decision upholding the validity of the Adamson law. Mr. Chief Justice White, in giving the decision of the court, upheld the law as an emergency measure. The question which the Chief Justice asked as a basis for the decision was: * * » x)ia it [Congress] liaye the power in order to prevent the interruption of interstate commerce to exert its will to supply the absence of a wage scale resulting from the disagreement as to wages between the employers and em- ployees and to make its will on that subject controlling for the limited period provided for? Mr. Chief Justice White said that he would pass over the question of the authority of Congress to establish an 8-hour day. That was so clearly sustained, he said, as to make it indisputable. We are of opinion that the reasons stated conclusively establish that from the point of view of inherent power the act which is before us is clearly within the legislative power of Congress to adopt, and that in substance and effect it amounted to an exertion of its authority to compulsorily arbitrate the dispute between the parties by establishing as the subject matter of that dispute a legis- lative standard of wages operating and binding as a matter of law upon the parties * * *^ a power none the less efficaciously exerted by direct legisla- tive act instead of by the enactment of other and appropriate means providing for the bringing about of such result. The capacity to exercise the private right free from legislative interference afeords no ground for saying that legislative power does not exist to protect the public interest from injury resulting from a failure to exercise that private right. In this particular instance, the Chief Justice said, there was: no abuse of the power such as to constitute a denial of the equal protec- tion of the laws, or a violation of the due process clause of the Con- stitution. Mr. Justice Day, in his dissenting opinion, agreed that Congress could fix the wages of railroad employees doing an interstate traffic, but he considered the fixing done in the Adamson law, without any in- vestigation, a denial of the due process clause and thus a violation of the fifth amendment of the Constitution. He was not prepared, he said, to admit that Congress could compel arbitration, as held in the majority opinion of the court. Justices Pitney and VanDevanter dissented on the ground that the legislation had no substantial relation to interstate commerce and was therefore invalid. Mr. Justice McEeynolds also said that this did not constitute a regulation of commerce. ""> Report of the Eight-Hour Commission, p. 10 (1918). *i243 U. S, 332, 68 USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES. ATTITUDE OF INTERESTS AFFECTED. The railroad interests were pleased by the decision of the court. Some of them regarded this as the entering wedge for the enactment of a compulsory arbitration law. The Railway Age Gazette, on March 23, commended the decision but expressed doubt as to whether the Members of Congress would have the courage to meet the needs of the time.''^ But the joy of the managers was matched by the keen disappoint- ment of the railway employees. Mr. Gompers, for the workers, exjjressed his disappointment at this turn of affairs. So bitter was his regret that he advocated curbing the power of the Supreme Court, which, he considered, had played into the hands of the employing class.*^ 12 " Tjjg important question now is, will our politics-ridden Congress have the patriot- ism and the courage to enact the legislation for the passage of which the Supreme Court has opened the way, and which the brotherhoods have so conclusively demonstrated is vitaUy necessary for the protection of the public?" (The Railway Age Gazette, Vol. LXII, p. 612.) '= " The court's decision came as an anticlimax too long delayed to be helpful In the purpose for which the law was enacted. Has the court permanently abandoned the field of Justice, to play into the hands of the employing class, the wealth producers of our country, by taking away from the working people the only effective power they possess to compel a decent regard for their rights, their freedom, the American standard of life? " Would it not be well for the Nation to consider the necessity of curbing the assump- tion of power of the Supreme Court rather than to supinely permit the court to ' curb ' the freedom of the masses « * * the workers?" (American Federationist, Vol. XXIV, p. 291 (April, 191T).) " CHAPTER VI.— PERIOD OF WAR ADMINISTRATION OF RAILROADS. The entrance of the United States into the European war brought with it peculiar problems in the railway labor field. An examina- tion of the period discloses a commendable zeal and a marked de- gree of success in the conception and in the application of devices to remove all possible friction between the railroad officials and the em- ployees. This was, accurately speaking, not so much a period in which disputes were settled as one in which difficulties were prevented from coming into existence. An act of Congress approved August 29, 1916,^ had authorized the President of the United States to take over the transportation system of the country and operate it in the event of war. Acting by virtue of the authority so conferred upon him, President Wilson, on De- cember 26, 1917, issued a proclamation that he would take possession of the railroads of the country on December 31.- At the same time he announced the appointment of Secretary McAdoo, of the Treas- ury, as Director General of Railroads. WAGE DETERMINATION. Immediately prior to this proclamation of the President there had been a movement for increases in wages of the railroad employees. On December 11, 1917, the conductors and trainmen demanded an increase and requested that they be given an answer within 30 days.^ Before the expiration of the 30 days and, consequently, before an answer had been given to the workers, the Government took over the operation of the railroads as a war emergency. Subsequently other employees of the railroads asked increased pay.* In General Order Xo. 1, given out December 29, 1917,' Director General McAdoo had asked that all the officers and the employees con- tinue in the performance of their duties just as though there had been no change in the control of operation of the roads. One of the earliest acts of the newly appointed Director General was the promise given the railway labor leaders that their demands for increased pay would be investigated and that any increase allowed should be retroactive to January 1.^ He announced his plan of procedure in the wage mat- ter in General Order No. 5, given out January 18, 1918.'^ In this > Pub. Law No. 242, 64th Cong. ^ , ^, ^ . , „ « „ 2 U S Railroad Administration. Bui. No 4_revised, pp. 6-9. = Tiie Railroad Trainman, Vol. XXXV, p. 20o (Mar., 1918). E uT' Railroad Administration. Bui. No 4 revised, pp. 145, 146. sBrotiiCTSood of Locomotive Firemen and Enginemen^s Magazine, Vol. LXTV, ^o. 2, ^' ■'^V. s!*Eailroad^Administration. Bui. No. 4 revised, p. 148. ^^ 70 USE OF FEDERAL, POWER IN RAILWAY LABOR DISPUTES. order he announced the appointment of a commission of four men whose duty it was to make a thorough investigation into the question of wages and to make recommendations for the guidance of the Di- rector General. The personnel of this board was such as to command the respect and the confidence of all the parties concerned. The mem- bers were Franklin K. Lane, Secretary of the Interior; Chanes 0. McChord, member of the Interstate Commerce Commission ; J. Harry Covington, Chief Justice of the Supreme Court of the District of Columbia ; and William E. Willcox, of New York. This action by Mr. McAdoo met with the hearty approval of the representatives, of the railway brotherhoods. In March, before any decision had been handed down, the Brotherhood of Locomotive En- gineers' Journal said : * * *, The Wage Commission, it seems to us, is an excellent one, and we look for as much increase in wages as the real needs require and in harmony with the increased cost of a decent living condition. We believe that the President and the Director General desire to be fair, and that the Wage Commission will bring a liberal report on needed increases in wages, and the future of the workingman has an agreeable look.^ The other magazines published by the railway brotherhoods com- mented in like manner upon the new agency. The Wage Commission, after a painstaking and careful investiga- tion covering a period of about four months, made its report to the director general." Thereupon Mr. McAdoo, on May 25, 1918, issued General Order No. 27.^° A substantial increase in wages was granted. The year ending December 31, 1915, had been taken by the Wage Commission as the base year upon which the increases were com- puted. And the increases were relatively larger for the employees gettin^the lower rates of pay. TheT)irector General carried out the recommendations of the Wage Commission with very few changes. In the preamble to General Order No. 27, putting these wage recommendations into effect, he men- tioned specifically, however, the issue as to the number of hours con- stituting a day. The Commission had expressed the judgment that, in view of the war emergency, the hours of service on the roads should not be at that time changed. Mr. McAdoo further stated that — I am convinced that no further inquiry is needed to demonstrate that the principle of the basic 8-hour day is reasonable and just and that all further contentions about it should be set at rest by a recognition of that principle as a part of the decision. Recognition of the principle of the basic 8-hour day in railroad service is, therefore, hereby made." The railroad employees were much pleased at the outcome of the investigation by the Wage Commission. One aspect of the report, however, was a disappointment to some of them. The selection of December, 1915, as the basic date upon which to calculate the in- creases meant that the commission had disregarded the standardiza- tion of wages which had come from the concerted movements of the employees during the years 1916 and 1917.^^ s Brotherhood of Locomotive Engineers' Journal, Vol. LII, No. 3, pp. 239 940 » U. S. Eailroad Administration. Report of the Railroad Wage Commission, Apr 30, 1918. i°U. S. Railroad Administration. Bui. No. 4 revised, p. 198. " Idem, p. 199. ^ V. S. Eailroad Administration. Annual report, 1918-1919, Dlyision of Labor PEBIOG OP WAf!, ADMINISTHATION. 71 The Director General commented upon the intricacy of the problem of doing justice to the 2,000,000 railway employees. The numerous supplements, addenda, recommendations, and interpretations to Gen- eral Order No. 27 ^^ indicate the difficulty the Railroad Administra- tion experienced in adjusting inequalities in the wage scale. In order to have the machinery to settle the many wage questions that might arise thereafter the director general in this general order announced the creation of a Board of Railroad Wages: and Working Conditions. Recommendations of this new board were submitted to the Director General for approval before they could be put into effect. In circular No. 31, June 1, 1918, Mr. McAdoo outlined the duties of this board as follows : It shall be the duty of the board to hear and investigate matters presented by railroad employees or their representatives affecting — (1) Inequalities as to wages and working conditions, whether as to individual employees or classes of employees. (2) Conditions arising from competition with employees in other industries. (3) Rules and working conditions for the several classes of employees, either for the country as a whole or for the ditlerent parts of the country. The board shall hear and investigate other matters affecting wages and con- dition of employment referred to it by the Director General." The last of the supplements to General Order No. 27 granting an increase in wages was issued in the early months of 1919. The direc- tor general at that time announced that this action completed the " war cycle " of wage increases and that any further increases would " have to be considered in the light of the new conditions." " Early in 1919j and especially m the month of August of that year, there was a series of unauthorized strikes on the roads. President Wilson, through the Director General, refused to order advances in wages until facts were available on which to determine whether or not the then price level was a permanent one. Some modifications, however, were made in the way of removing inequalities.^^ Mr. Carter, in charge of the division of labor, attributed these unauthor- ized strikes to the fact that the men did not realize that their con- troversies could be handled through his office in such a way as to get justice." His division did succeed in settling many of the troubles. It should be remembered that even these unauthorized strikes came after the signing of the armistice and when the urge of patriotism no longer acted as a controlling force. Director General Hines has insisted that there has been a great deal of misconception " as to the amount of wage increases resulting from the machinery put in operation by the Railroad Admimstra- tion.i^ According to Mr. Hines the average increase over the 1913 and' 1914 level of wages was approximately 100 per cent, whereas that for the workers in the iron and steel industry for the correspond- ing period was 120 per cent. He explained the few abnormal cases, "U S. Railroad Administration. General Order No. 27, with supplements, addenda, amendments, and interpretations (1919). 14TT « Rnilroafl Administration. Bui. No. 4 revised, p. .?72. , ^ ^. «Eepdrf to lie^esWent by W. D. Hines, Director General of Railroads, for 14 months '"«l!,^ll- EepOTt^'o" W."D"^'Hfnes,^-Dlrector General of Railroads, 1919, Division of ^^^Rmorf to the President by W. D. Hines. Director General of Railroads, for 14 months ending Mar. 1, 1920, revised ed., p. 19. 72 USE OF FEDEBAL POWER IN RAILWAY LABOR DISPUTES. both of high wages and of low wages, as a result of the application of general rules to the different lines of work, a part of which work had not been standardized. The analysis and the figures presented by Mr. Hines are of interest in connection with the assertion, frequently made, that the Govern- ment purchased peace on the roads by giving unwarranted increases in wages. Mr. Hines's conclusions indicate that the comparative freedom from labor disturbances during the war period can not be explained by the payment of unreasonable wages. His statement has been verified by the following statement, which appeared on, July 20, 1920, in the decision of the United States Rail- road Labor Board, created by the transportation act of 1920 : It has been found by this board generally that the scale of wages paid rail- road employees is substantially below tliat paid for similar work in outside industry, that the increase in living cost since the effective date of General Order No. 27 and its supplements has thrown wages below the prewar standard of living of these employees, and that justice, as well as the maintenance of an essential industry in an efficient condition, require a substantial increase to practically all classes." A statistical presentation showing the wages paid prior to the period of Federal control, those allowed during that period, and those granted by the Eailroad Labor Board,^" further bears out the con- tention of Mr. Hines. RELATIONS WITH ORGANIZED LABOR. From time to time the Director General of Railroads made new regulations and issued ne^^ orders setting forth the policy of the administration. General Order No. 8, issued Februarj- 21, 1918, was one of the most important of the kind under discussion.^' This order was issued in part to correct wrong impressions given in the earlier ones concerning the question of a change in wages, etc. But by far the most significant part of the new order was section 5. Here the Director General declared that no discrimination of any kind should be made against a worker because of his membership or non- membership in a labor organization. This, it will be recalled, was the essence of section 10 of the Erdman law, the section declared un- constitutional by the Supreme Court in the case of Adair v. U. S.^^ The brotherhoods approved such a ruling and the result was to confirm them in their belief that the Railroad Administration would give them a square deal. Mr. Carter, the director of the Division of Labor, said that this resulted in the addition to the ranks of union labor of many railway employees who had not theretofore been permitted to afiiliate with organized labor.^ General Order No. 8 also directed that, where possible, excessive hours of work be avoided and that proper safety appliances be used on the railroads. "tr. S. Railroad Labor Board. Decision No. 2, p. 7. ="D. S. Railroad Lal)or Board. Wage Series, Report No. 1 (August, Ifl-^O) ^ tJ. S. Railroad Administration. Bui. No. 4 revised, p. 167. =2 See pp. 28, 29. '"U. S. Railroad Administration. Annual report, 1918-1919, Divjsion of Labor p 7. Period of war administration. 73 «!illt!'Trn' RATLWAY ADJirSTMENT BOARDS. xllP ID- A gi-eatTleal of tlie dissatisfaction of the railway workers in the past has arisen from the interpretation of the awards made by arbi- tration boards and of the agreements entered into by the contesting parties. One of the objections to arbitration which the brotherhood leaders had urged was that the employer alone assmned the role of the interpreter. In Order Xo. 13 Mr. McAdoo approved machinery which was designed to handle matters of interpretation and the ad- justment of personal differences.-* He indorsed an agreement entered into by the i"egional directors and the representatives of the four brotherhoods. The adjustment board was to consist of eight men, four to be selected by and paid by the railroads and four to be selected by and paid by the employees. This board was to assume the functions formerly vested in the committee of eight in disputes arising from the interpretation of the S-hour law; to decide controversies growing out of the in- terpretation of wage agreements (excepting those passed upon by the Eailroad Wage Commission) ; to adjust all personal differences and disputes arising between the men and the roads if they had failed to adjust these through the usual conference committees of employers and employees. The disputants could not refer a matter to the Rail- way Adjustment Board imtil they had exhausted all their own re- sources in an attempt to arrive at an agreement. If they were unable to agree it then became obligatory upon them to refer the difficulty to the adjustment board through the medium of the Division of Labor of the EaUi-oad Administration. A decision upon any matter within its jurisdiction could be rendered by a majority of the board. In case there was no majority any four of the members could refer the controversy to the Director Greneral of Eailroads for final settle- ment. General Order Xo. -29. issued May 31, 1918,=^ authorized a similar board for disputes arising between the managers and the machinists, boUer makers, and other like classes of railway-shop labor where organized in. unions. Finally, on November 13, 1918, General Order Xo. 53 -" created, in like manner, a railway adjustment board to handle the cases of the telegraphers, switchmen, clerks, and maintenance- of-way employees. These bipartisan boards were created throu^ agreement between the managers and the men. Director General Hines was warranted in calling this a recognition of the principle of collective bargain- ing. A plan like this one had been suggested by the labor leaders in 1917.-^ In this case the suggestion came from the settlement by the Council of Xational Defense in 1917. The railroads and the men then agreed to set up a commission of eight, four from each side, to pass upon controversies growing out of the application of the award.=' There seems to have been no doubt as to the successfid operation of the adjustment boards. Mr. Doak. of the Brotherhood of Rail- »U S. Bailroad Administration. Bnl. Xo. i rcTised, p. ITS. »Idem, p. 300. «r*''s cdl?^ House of Eepresenmttves. Comminee on Interstate and Foreign ^°^%-Rj£^fa^\^t^ti^rV^n"al"?&--^^^^^^^ - --■ P- - Also SMkte hearings on S. 2906. 66tli Cong., 1st sess.. p. bO. 74 USE OF FEDERAL POWER IN RAILWAY LABOr.^p^^c road Trainmen, in his testimony to a Senate comnutteo-wplica, -oiss 24, 1919, said that there had never been a deadlock in^'-^ :w,_^ < Adjustment Board No. 1 and that there had never been a minfe"^ report.^" Mr. Doak was a member of this board. Mr. Hines calle'a the work of the boards " eminently satisfactory." ="> He reported that there had been agreement in practically every instance and that on many of the largest roads all the disagreements had been settled by conference without having to bring them to the attention of the adjustment boards at all. He recommended that, following the period of Federal control, this plan of the bipartisan boards be con- tinued.^^ Mr. Carter was, if possible, even more enthusiastic in his report concerning the work of these boards. He wrote : The wort of these boards demonstrates not .only the advisability of the creation of such boards, but the necessity of their continuance, either under Federal control of railroads or thereafter. The fact that boards are bipartisan without any " umpire " or " neutral member " and all of which members are experts in railroad agreement matters have led both officials and employees to have confidence not only in the fairness of decisions reached but as to the tecli- nical ability of the members of the boards to pass intelligently upon all contro- versies submitted for decision.'^ THE DIVISION OF LABOR. In the early part of the administration, on February 9, 1918, Mr. McAdoo created the Division of Labor, with a director of labor at its head, as one of the five departments of his administration.^' In charge of this division he placed Mr. W. S. Carter, president of the Brotherhood of Locomotive Firemen and Enginemen. It was to be his duty to advise the Director General in all matters concerning labor and to exert his influence to bring about harmonious relations between the employer and the employees of the railroads. The former connection of Mr. Carter with labor movements gave him a decided advantage in this field. His long experience with railway labor and the confidence reposed in him by the employees augured well for his success. In addition to his work as general supervisor of all labor matters, Mr. Carter had certam specific duties. It has already been shown that he acted as an intermediary in bringing disputes from the con- ference committees to the railway adjustment boards in those cases m which the conferees had not been able to reach an agreement One important duty of the dii^ector of the Division of LaboV was that of acting for those employees who were not represented by any railroad adjustment board. And for some time only the members of the four, brotherhoods were so represented. Even at the end of the period of Government control there were some employees who were not represented on the adjustment boards. Whenever controversies' arose between the unorganized employees and the roads on which they worked they were instructed that they were to try to reach an 2° U. S. Congress. Senate. Committee on Interstate Commerce. Hearino-c o, „r.^o eeth Cong., let sess., p. 78. neanngs on S. 2906, ■"Report of W. D. HInes, Director General of Railroads, to the Prp^irior,* . months ending Mar. 1, 1920, p. 15. , >■ >= Jr-reswent for the 14 ^ Idem, pp. .39, 40. ^Annual Report of W. D. Hines, Director General of Railroads, 191!) I)ivi<.i, p. 50. ' "'"'"n of Labor, ^ U. S. Railroad Administration. Bui. No. 4 revised, p. 357. PEBIOD OF WAR ADMINIStEAtION. V5 agreement with the management. Failing to reach such an agree- ment, th^ matter was to be referred to the director of the Division of Labor. The latter would appoint a representative of his office to try- to bnng about an adjustment. As a last resort the matter was to be referred agam to the director of the Division of Labor. Personal grievances were to be handled in the same way.^* Special agents were sent out to make investigations into com- plamts made by employees; to make arrangements for conferences between the opposing interests; and to advise the railroad employees on strike as to how they could present their grievances to the proper agencies. In many instances this work was done so effectively that the anticipated strikes did not materialize.^^ This work was con- sidered highly important in that it brought the Eailroad Administra- tion into close personal contact with the men and served to show them that their welfare was properly safeguarded and that the value of their services was fully appreciated by the authorities. Some of the railroad executives are of the opinion that organized labor was humored to an unnecessary extent during the .period of the war. Mr. Howard Elliott, chairman of the Northern Pacific Railway Co., in his testimony to a Senate committee on May 25, 1921, quoted with approval an excerpt from an article by ex-President Taft. In this article Mr. Taft criticized the administration for the passage of the Adamson law and also for the negotiation of the national agree- ments with the railway employees. He insisted that the controversies should have been adjusted on the railroads sejJarately.^^ Mr. Elliott attributes much of the controversy of the present time to the work done during the period of Federal control. Mr. Elliott subscribed heartily to the position taken by Mr. Taft in this respect. But whether labor was pampered or whether the workers received only fair play, the fact remains that during the Federal control of the railroads labor difficulties on the roads were at the minimum, and this spirit of cooperation undoubtedly promoted the successful prosecu- tion of the war. " Annual Report of W. D. Hines, Director General of Eallroads 1919, Division of Labor, pp. 11-13. See also Eailroad Administration Bui. No. 11, pp. 303, 304. 35 Annual Report of W. D. Hines, Director General of Railroads, 1919, Division of Labor, p. 36. ™ " The present administration, by forcing the Adamson law through, and by its subse- quent administration of the railways, enthroned the national leaders of the railway labor organizations in power. The framing, execution, and construction of labor pro- visions and regulations in the railroad administration were largely intrusted to labor leaders, and there was no active Interest really adverse to that of the labor organizations in the Government operation. During the war such a condition had to be endured, but now. the situation is different. The railroad executives, restored to possession of the properties and responsible for their efficient and economic management, are seeking a readjustment and a basis for operating the properties in which much-needed discipline and a fairly proportionate rate of wages may be restored and maintained. They propose that each company shall be permitted to deal collectively with the men in its employ and shall not be required to deal in the first Instance with the national heads of labc- organizations. This is a real collective bargaining. The principle is that the employer and a body of his employees .shall come as near together as possible in their conference.^, so that looking into each other's eyes and hearing each other's voices, so to speak, they may have a clear understanding, each of the other's position and condition. The primary unit of action is the shop or railroad system in which the dispute arises. This has never been denied until now by either side. " Experience has shown that with full liberty to deal with their respective employees by themselves,, many railway executives can fully and satisfactorily adjust working conditions and wages, too. In such matters, local self-govei-nment is the essence of collective bargaining and not a straw should be put in the way of It." (Hearings on S Res 23 by Senate Committee on Interstate Commerce, 67th Cong., 1st sess., p. 410, 1921.)' CHAPTER VII.— TRANSPORTATION ACT OF 1920: ESCH- CUMMINS LAW. CONGRESSIONAL CONSIDERATION FROM PASSAGE OF ADAMSON LAW TO ENACTMENT OF LAW OF 1920. Congress, it will be recalled, had put into the Adamson law only two of the five recommendations made by President Wilson in his message of August 29, 1916. In his address to Congress he recom- mended and urged the passage of a provision which would prevent the calling' of a strike prior to an investigation of the merits ot ttie case by a Government commission. On December 5 of that year the President again addressed Congress on the subject : I can see nothing in that proposition but the justifiable safeguarding by society of the necessary process of its very life. There is nothing arbitrary or unjust in it unless it be arbitrarily and unjustly done. It can and should be done with a full and scrupulous regard for the interests and liberties ot all concerned as well as for the permanent interests of society itself. Following the address of the President a number of bills were in- troduced in the Sixty-fourth Congress, for the purpose of amending the Adamson law and the Newlands law. On December 5 Senator Underwood, of Alabama, proposed a bill (S. 7031) to give the Inter- state Commerce Commission power to fix hours and wages for rail- way employees. Senator Townsend, of Michigan, introduced a bill (S. 7066) to provide for the investigation of controversies affecting interstate commerce. On December 8 Senator Hardwick, of Georgia, proposed (S. 7239) that the Adamson law be amended. Senator Sher- man, of Illinois, on December 13 submitted an amendment to the bill proposed by Mr. Townsend.^ On December 14 Senator Sterling, of South Dakota, introduced a bill (H. E. 18906) as an amendment to the Newlands law. The Committee on Interstate Commerce of the Senate on January 2, 1917, began hearings on tentative bills to amend the Newlands law.' Representatives of labor appeared before the committee and opposed legislation along the line of compulsory investigation of dis- putes before a strike could be called. They also opposed the Under- wood amendment to give the Interstate Commerce Commission the power to fix wages for railway employees and to establish the hours of work for them. Mr. Doak, vice president and legislative repre- sentative of the Brotherhood of Railroad Trainmen, said that the result of such an amendment would be to enslave the workingmen and to deprive them of their only effective weapon.* He said that 1 Congressional Record, Vol. LIV, pp. 16, 17. 2 Idem, p. 253. ' V. S. Congress. Senate. Committee on Interstate Commerce. Government Investi- gation of Railvpay Labor Disputes. Hearings on Tentative Bills to Amend » » » (1917), 64tli Cong., 2d sess. * " If this law goes into effect you have tied us and enslaved us, to the detriment of these employees, and simply taken away from us, in the interests of society, the only weapon that we have to defend ourselves with, without giving us a recourse, possdblv, in the end." (Idem, p, 186.) 76 ■ TRANSPORTATION ACT OF 1920 : BSCH-CUMMINS LAW. 77 the Underwood amendment would be the equivalent to slavery for the men.s Mr. Gompers objected to any legislative action and in- sisted that the men be permitted to use their economic power in the settlement of their differences with the managers." The Committee on Interstate and Foreign Commerce of the House of Kepresentatives also held hearings on the proposed measures.^ The representatives of labor here again objected to any legislation by Congress. Finally, when asked what he would do about the mat- ter, Mr. Lee said that he would abolish the Newlands law as it was no longer of any value : Then institute instead of it a clearing house or commission consisting of, say, four men on one side tliat are practical men, men out of the service, conductors, brakemen; engineers, or something of that kind, four gentlemen who are practical operating officers, who ought to know when they sit across the table just what is meant when something is asked, who can pick up any schedule now in effect upon any railroad and in a moment, aside from their personal feelings, either for the organizations or for the railroad companies, give a fair interpretation of it. Something of that kind, in my opinon, will do away with practically all of the threatened strikes, even of the transporta- tion employees, and still leave it in the hands of practical men.' Mr. Sheppard, for the conductors, and Mr. Stone, for the engi- neers, both subscribed to the views expressed by Mr. Lee.^ None of the men wanted anything done by Congress, but said that if something had to be done, then the action taken should be what Mr. Lee had suggested. Mr. Sheppard did, however, propose other action on the part of Congress. He suggested that the roads be allowed to charge what they wished for the hauling of freight, etc., but that everything made in excess' of 6 per cent on the investment should be divided equally between the public and the employees. Government owner- ship, Mr. Sheppard said, would probably force this kind of solution ultimately. This suggestion of Mr. Sheppard is of interest in its bearing upon the later movement of the railway laborers for the Plumb plan and especially with reference to the principle for the adjustment of disputes contemplated by that plan. On February 10, 1917, Mr. Newlands, for the committee, reported favorably Senate bill 8201, which he had introduced the preceding day.^" This bill provided that in those cases in which the United States Board of Mediation and Conciliation failed to effect a set- tlement, the President should appoint two additional members — representing the railway employees and the railway officials, respec- tively — and the board thus enlarged should investigate and make a report on the controversies. The right to strike pending the investi- gation and the rendering of the report was not to be taken from the men, although Mr. Newlands said that he, personally, was in favor of such a limitation. , . , tx , tit A similar bill (H. E. 20752) was introduced m the House by Mr. Adamson on February 5. The committee reported this bill on the = " My objeotions and our objections to this are that it is absolute slaTery and that it discriminates." (Idem, p 209/) on Interstate Commerce. Government Investi- gation (if Eaffwfy Labor iWsputes. Hearings on Tentative Bills to Amend • * * (1917), 64th Cona, 2d sess pp. 239-285.^^.^^^ Committee on Interstate and Foreign Commence nfartags on h' E. 197l?0 (1917), 64tb Cong., 2d sess. s Idem, pp. 54, 55. Vc^ngv^&ioZ- B^cord, Vol. LIV, PP. 2980-2982. 78 USE OP FEDERAL POWER IN RAILWAY LABOR DISPUTES. following day." No action was taken on these bills in either branch of Congress. Two other bills (H. E. 20844 and H. E. 20907) met a similar fate. The failure to secure legislation vmtil after the war was due, in part at least, to the amount of business with which Con- gress had to deal as a result of the war with Germany, business that left little time to be devoted to the legislation to prevent railway labor controversies. Then, too, it was decided to handle the railroad problems through the Railroad Administration during the war period. The Sixty-fifth Congress did pass a law, however, which seems to apply to strikes on railroads. ^^ This was the enactment of Senate bill 2356. This law made it a misdemeanor to obstruct the movement of any train in interstate commerce during the war. Certainly a strike by a group of railway laborers does constitute an interference with the movement of such trains. Senator Newlands, in answer to a criticism that this law would, if enacted, interfere with the right of the men to strike, replied that the legislation was not so designed and that the Committee on Interstate Commerce did, not desire to take up the question of strike legislation at that session of the Con- gress.^^ PASSAGE OF ESCH-CUMMINS LAW. In the early part of 1919 Congress began to consider the future status of the railroads and to devise some plan for their operation after the anticipated peace with Germany and the automatic termina- tion of Federal control of the roads which would follow the declara- tion of peace. It is not necessary for the purpose of this study to enter into a detailed discussion of all the bills introduced with this end in view. Mr. McAdoo, together with other proponents of Gov- ernment operation, urged Congress to continue the Government con- trol for a period of five years." Representative Sims, of Tennessee, on January 7, 1919, introduced a bill (H. R. 13707) to authorize the extension of Federal control until 1924. Had this measure passed, the machinery for settlement of railway labor disputes would probably have continued as under the period of Government administration of the roads. THE HOUSE BILL. But Congress took no action on this important issue before having given It lengthy and detailed consideration in its committees The bill which served as the basis for the hearings by the Committee on Interstate and Foreign Commerce of the House of Representatives was the Esch-Pomerene bill (H. R. 4378) , introduced on June 2 « A bill embodying the so-called Plumb plan for the operation and control of the railroads was also discussed in the hearings. This was the bill introduced by request by Mr. Sims (H. R. 8157, 66th Cong ) The sec- tion of the latter bill applying to the settlement of railway labor dis- " Congressional Record, Vol. LIV, p. 2726 (Feb fi ]qi7l ^ Pub. Law No. 39, 65th Cong. . j, J-»ii j . 18 Congressional Record, Vol. LV, pp. 3151, 3152, 3341 (June 1 8 lfl17^ "In pamphlet, "Extending Period of Control of Railroads "' nrintprt Vnr tv, Tllwj °° I-iterstate and Foreign Commerce, H. R xI'tOT, 65th hon^%ri^^. "H.'Rept. No. 456, 66th Cong., 1st sess., p. 1. TKAJMSPOKTATION ACT OF 1920 : ESCH-C'UMMINS LAW. 79 putes provided that wages should be fixed by the directors, composed of representatives of the managers and of the men. In the event that any dispute arose it was to be adjusted by a conference committee of the managers and the men. If these were unable to adjust the differ- ence an appeal was to be taken to the directors. The Plumb plan, it will be recalled, was the one approved by the members of the railway brotherhoods. In their testimony to the House committee they reiterated their adherence to this plan. Various other plans were also considered by the committee. The hearings began on J\ily 15 and continued until September 27. Testimony to the extent of more than 3,000 words was taken from experts and from those especially interested in the proposed legisla- tion.^" A considerable part of the testimony concerned the question of the adjustment of labor controversies when the railways should have reverted to private management. An analysis of the different proposals made to the committee would require too lengthy a discussion for the purpose of this paper. An examination of the testimony taken shows that all kinds of plans, ranging from a policy of laissez faire to one in which the Govern- ment should fix the wages and determine working conditions, were brought forward by individuals and by groups of individuals. Com- pulsory arbitration was again defended by its adherents and was attacked by the labor leaders. After giving consideration to all the testimony taken and deliberat- ing at length the committee, through Mr. Esch, presented House bill 10453 and submitted a report to accompany it.^^ In this report the committee analyzed the bill and presented the reasons for its passage. Title III was termed "Disputes between carriers and their em- ployees." The committee reported that it did not deem it advisable to present a recommendation for an antistrike provision. It asked the establishment of two boards, a railway adjustment board and a railway labor board of appeals. The Eailway Adjustment Board was to consist of representatives of the employers and representatives of the employees. These mem- bers were to be selected by and paid by the interests which they repre- sented, respectively. If any group of employers or of employees failed, within a given time, to name a representative to this board the President of the United States was to make the appointment. It was thought that such a board would consist of approximately 30 members. In the event of a dispute between the employer and the employee the board was to refer the matter to a conference commit- tee representing the contesting sides. The conference committee was to report the findings to the Board of Labor Appeals, to the con- testants, and to the President of the United States. FuU publicity was to be given the report. .. 4= • The Eailway Board of Labor Appeals was to consist of nine mem- bers-three representing the employers, three the workers and three the public. The employee members were to be appointed by the President, one from each of three groups of six names suggested by the employee members of the Adjustment Board. The employer members were to be appointed in a like manner from a list of names ™i Kept. No. 456, 66th Cong., 1st sess. 80 VSE OF FEDEEAL POWER IN EAILWAY LABOR DISPUTES. suggested by the employer members of the Adjustment Board. In appointing the third group the President was to be instructed to give due consideration to the agricultural, to the commercial, and to the unorganized employee interests. The last three members were to be named directly by the JPresident. No man could hold membership in the Board of' Labor Appeals and on the Adjustment Board at the same time. Members, after the initial appointees, were to hold office for a period of six years, thus securing a continuity of policy in the board. Although all the nine members of the Board of Labor Appeals were to take part in the hearings and the discussion of any dispute presented to them, only the members representing the employers and the employees were to have the right to vote on a question. Five of these six votes were to be necessary to a decision. Publicity was to be given the decisions reached. The board was also to make investigations of a general nature into the relations of the railroads to the employees and was to publish information thereon from time to time. Certain records and documents were to be turned over to the Labor Board by the United States Board of Mediation and Conciliation created under the Newlands law. Any railroad employer breaking a contract based upon the de- cision of the board and any union counseling such a breach of con- tract were to be liable to damages in a manner prescribed. The bill provided no means of enforcement. In this respect the voluntary cooperation of the roads and of the men was to be relied upon exclusively. As will appear in the discussion of the Senate proposal, this was in marked contrast with the proposal favored by the latter body. The penalty for the breaking of contracts, as pro- vided in the House bill referred to above, was to apply only in those cases in which the contestants had agreed to submit the con- troversy to the Adjustment Board. In this respect it was analogous to the provision for a court review incorporated in the Erdman law in 1898. THE SENATE BILL. While the House of Representatives was engaged in an attempt to provide for the return of the railroads to private management, simi- lar action was being considered in the Senate. Senate bill 2906 had been introduced by Senator Cummins, of Iowa, on Septem- ber 2, 1919. A subcommittee of the Committee on Interstate Commerce held hearings on this bill from September 23 to October 23.^' At these hearings representatives of the railway brotherhoods were given an opportunity to present their views. These men centered their attack mainly upon section 29 of the bill, the section making a strike unlawful. Mr. Stone, of the Brother- hood of Locomotive Engineers, indicated the attitude of the em- ployees in his testimony : This legislation, speaking of Senate bill No. 2906, is, in my opinion, by all odds the most reactionary that has been proposed in Congress in connection with the railroad question. * * * "tJ. S. Congress. Senate. Committee on Interstate Commerce. Prevention of Striito« Hearings on S. 2906, 66th Cong., 1st sess. (1919). otriiteb. TBANSPOBTATION ACT OF 1920: ESCH-CTJMMINS LAW. 81 It is wholly, solely, and entirely in the Interests of capital and can never be supported by any intelligent group of informed public opinion." Mr. Doak, of the Brotherhood of Raih'oad Trainmen, protested vigorously against the antistrike clause, insisting that the enactment of this legislation would do more than anything else to destroy the power of the more conservative elements in the labor world, the destruction of which would bring on strikes against the law; that this would force the laboring men into the ranks of the radicals in self-defense.=" Without a single exception the labor leaders at the hearings expressed similar views. The subcommittee concluded its hearings, and on November 10 Mr. Cummins presented a report and Senate bill 3288!^^ Sections 25, 26, 27, and 28 of the new bill applied to the railway labor problem. In spite of the opposition expressed by labor leaders the bill included an antistrike provision. It was made unlawful to " aid, abet, counsel, command, induce, or procure the commission or performance of any act" which would interfere with interstate conunerce. Senator La FoUette, of Wisconsin, in his minority report, held that the scope of this bill was so broad as to make it unlawful to give assistance to the famishing members of the family of a man on strike.-- The bill provided for three regional boards of adjustment and for one conunittee on wages and working conditions. These boards were to have jurisdiction over all controversies between the roads and the men which were incapable of settlement by conference. Each of the four boards was to be composed of an equal number of represen- tatives of the men and of the managers, being nominated by these interests, respectively. The adjustment boards were to have juris- diction over all disputes other than those involving wages and work- ing conditions. The latter were to be under the special jurisdiction of the board established for that purpose. But no decision was to be final until approved by the transportation board, a new board the members of which were to be appointed by the President. This board was to take over a great deal of the administrative work there- tofore done by the Interstate Commerce Commission. One can see the analogy between .the Senate plan and that applied during the Government administration of the railroads. The three agencies correspond roughly to the Eailway Adjustment Boards, the Board of Eailroad Wages and Working Conditions, and the Direc- tor General of Eailroads, respectively. Disputes that could not be settled otherwise were to be appealed to the transportation board just as thev had been appealed to the Director General of Eailroads. And, likewise, the approval of the transportation board was neces- sary to make effective any decision arrived at by the subordinate agencies as the approval of the Director General had been necessary under Federal control. Senator La. FoUette probably expressed the feeling of the many people opposed to this bill when he said : T submit that this bill which they have prepared and reported to the Senate containrevery, vice wh ich is supposed to inhere in Government ownership and 10 T- •^ Con20 : KSOH-CUMMINS ].AW. 95 unfairly the matter that could be presented at such hearing; that the fundamental issue was the right of the employer and the em- ployee to deal with each other directly; and that his road denied the authority of the Labor Board to invade the province of the man- agement of the company.^" The railroad again asserted, through its managemeht, that it would continue to deal directly with its em- ployees as to the determination of wages and the rules and working conditions on the road. At the time of the present writing (Oct. 1, 1921) there is no indication as to how this controversy will end. In this case, rightly or wron^y, the Pennsylvania has refused to carry out the mandates of the Kailroad Labor Board. This will afford, therefore, an opportunity to test the transportation act of 1920 as to its efficacy in the settlement of railway labor disputes. Unfor- tunately for the purposes of generalization, the industrial depression and conditions of unemployment of the present make this test one which can not be used, probably, as a safe guide to any prediction of what will happen when conditions become normal again. Simultaneously with the negotiations on the Pennsylvania Kail- road the federated shop crafts were conferring with other railways with a view to securing agreement upon new rules and working con- ditions. When they failed to reach an agreement the controversy was referred to the Kailroad Labor Board. A decision was handed down on August 11, 1921.°' The board approved seven rules and decided that they should apply to all the carriers in this controversy, 137 in number, unless some of the carriers had already agreed with their men upon rules governing these problems. Overtime was to be paid at the rate of time and one-half in certain instances and at the regular rate in other circumstances. Work on Sundays and holidays was to be paid at the rate of time and one-half excepting in specified cases where the work, was necessary to certain operations. The board asserted that the lack of uniformity in the period prior to Federal control made it possible to find precedents for almost any rule: The board has therefore felt constrained to consider the principles of right and wrong involved in the proposals and counterproposals submitted to it, in the light of present conditions and industrial history. This decision marks a distinct departure in the policy of the board in that it was the first one in which any member of the board had rendered a public dissenting opinion. Mr. A. O. Wharton, represent- ing the federated shop crafts on the board, wrote a minority report in which he insisted that injustice had been done the men m that they were denied certain things that had been conceded them by the man- agement voluntarily in the past: It does not appear either just or reasonable that conditions which have been in effect- from 10 to 20 years and even longer, established as a result of nego- tiation and mutual agreem^t between employers and employees, and not infre- quently established where no organization of employees existed, can now be de- cided as unjust and unreasonable. While they have not often become enthusiastic over the work of the Railroad Labor Board, both sides have indicated their approval m 5= Railway Age, Vol. LXXI, p. 639 (Oct. 1, 1921). K US Railroad Labor Board. Decision No, 222. 96 USK OF FBDEBAL POWER IN RAILWAY LABOR DISPUTES. general. Mr. F. W, Sargent, solicitor general of the Chicago & North Western Railroad, at a meeting of the board on June 9, 1921, called the Railroad Labor Board the greatest experiment ever undertaken in a civilized form of government." *^ He promised, for his road, abso- lute compliance with the orders of the board, even though this might mean insolvency. The labor leaders present expressed a similar de- sire to cooperate with the board. The accord seemed to be so com- plete that it was characterized as a " love feast." But it should not be forgotten that this antedated the order post- poning the abrogation of national agreements. Mr. Howa,rd Elliott, of the Northern Pacificj on May 25, 1921, testified it to be his belief that no further legislation should be enacted before the law of 1920 had been given a fair trial under business conditions more nearly normal than those at the present time.^" Since the controversy with the Pennsylvania Railroad, and the decision in which Mr. Wharton dissented, both sides have been less optimistic in their view of the work of the Railroad Labor Board. Some of them have gone so far as to challenge the adAdsability of the compliance with the awards of such an agency. These are illustrations of the criticism which such an agency alwaj^ en- counters as soon as its decisions do not meet with the expectations of the parties affected thereby. ESCH-CUMMINS LAW VERSUS EARLIER LAWS FOR ADJUSTMENT OF RAILWAY LABOR DISPUTES. The transportation act of 1920 marks a new departure in the means adopted to adjust labor difficulties on the railways. It will be recalled that the law of 1888 provided for voluntary arbi- tration and for the appointment of Government investigation com- mittees; the Erdman Act provided for mediation and conciliation and for voluntary arbitration; the Newlands law was merely an amplification of the Erdman law. A distinct step was taken in 1916 when, in passing the Adamson law to settle a railroad labor dispute, _ Congress assumed the responsibility of fixing the hours of service on the railroads by legislative enactment. Further changes were made during Federal control of the railroads when ' the Director General exercised the power to determine wages and working conditions, consulting and advising with the interested parties, however. Prior to the period of Federal control the emphasis in all these ineasures had been placed upon the voluntary nature of the negotia- tions. The public, it is true, was represented on the investigation commissions to be created by the statute of 1888, as it was on the boards of arbitration to be established by that act and by the Erd- man and the Newlands laAvs. It was also represanted on the media- tion boards of the latter two acts. But in all these cases the public representation was more in the nature of that of an impartial judge rather than that of an interested party. This public interest became i» Railway Age, Vol. LXX, p. 1390. ™ U. S. Congress, Senate. Committee on Interstate Commerce. Hearlnffa « » • on S. Res. No. 23, 67tli Cong., 1st sess., p. 404. neaungs TRANSPOKTATlOJSr ACT OF 1920: ESCH-CtrMMINS LAW. 97 the paramount one in the passage of the Adamson law and also in the machinery set up by the Director General of Eailroads during the -bederal control era. The law of 1920 marks the final stage in the establishment of the primacy of the public interest. It is true that, in this respect, it does no more than was done under Federal control. But Federal control was exercised in a period of war emergency and is not to be considered apart from the extraordinary circumstances which gave rise to it. The 1920 statute, it seems, applies the same theory to the adjustment of controversies in time of peace. Even now the voluntary cooperation of the contending parties is relied upon to settle these disputes in so far as possible by means of conference committees. But such settlement can be set aside by the Kailroad Labor Board if it is of such a nature as to necessitate a change in traffic rates, charged by the railroads. Here, then, is the final capstone placed upon the recognition of the welfare of the gen- eral public. Again, the terms of the law indicate that the enforcement of the awards is to be secured through the cooperation of the disputants. But with the present provisions for the giving of publicity to the awards of the Railroad Labor Board it would, indeedi, be a rash contestant who would defy an enlightened public opinion crystallized by the information given out by the Railroad Labor Board. Practically, then, the Government has taken the step which the logic of the situation demanded. The regulation of the income of the carriers by public authority implies the obligation to regulate the expenses also. Congress has now assumed that responsibility, an assumption, however, which makes use of the force of public opinion to effect a realization of the object had in view. What the ultimate result of such a transition and development is to be, it would be folly to predict. It looks now as if controversies on the railroads will never again be settled as though the contending parties were alone int-olved. Slowly, step by step. Congress has assumed a position from which the people will not allow it to recede. And it is possible that the legislation of the future will have to go even further in the way of an enforcement of the awards. Whether the end will be that of Government ownership, or a system of rigid and stringent Government regulation such as to minimize the danger of an interruption of interstate commerce, need not matter for the purpose. The problem is by no means a simple one nor can it be said that the final and the best solution has been reached. There is still the possibility that the present arrangement will fail or that it will be subjected to abuse. But enough has been done to indi- cate the growing feeling on the part of the public that this is a prob- lem for governmental activity. If the present machinery, therefore, proves to be inadequate, new experiments will doubtless be tried. 79994°— 22 7 APPENDIXES. APPENDIX A.— CONSTITUTIONAL ISSUES INVOLVED IN LEGIS- LATION TO SETTLE RAILWAY LABOR DISPUTES. The United States Government has sufficient power to grapple with the problem of disputes and controversies on the railroads. That is, the provisions of the Constitution are such as to make valid any action necessary for the attainment of the end in view. This can be shown by reference to the pro- visions of the Constitution Itself and by reference to the decisions of the Federal Supreme Court in which the powers of the Government in this field have been interpreted. The re are severa l grounds on which action b y the Federal Government can be sustained! Siege are t ne Tnt eretat e com merce clauseof _the Constitution ; th e power of Congre^ to establish post offices and post roads; the_gower_to^establish military roads; andJhejwllcejSwerT Throughout the discussion of the Iabof~pfoblem on the railroads it has been held that the nature of the railway made this a peculiar field in which action by the Government was warranted. Munn v. Illinois^ (1876) gave explicit recognition to this fact. The State of Illinois enacted a statute for the regulation of public warehouses. Justice Waite, giving the decision of the court, indicated that the public nature of the business regulated was such as to call for special legislation: When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled for the common good to the extent of the interest he has created. He may withdraw his grant by discontinuing the use; but so long as he maintains the use he must svibmit to the control. The above reasoning has been applied to the employee as well as to the one who has invested his capital in an undertaking devoted to the public use. The argument is that the worker upon entering the employ of a public-service corpo- ration has to that extent given the public an interest in his work. Therefore the public, in the interest of self-preservation, should have the power to require an uninterrupted performance of the work contracted for by such worker. No worker, it is contended, is forced to enter the service of the public utilities. And if he goes into it with his eyes open as to his duties and as to his responsi- bilities he can expect that the public will insist upon some degree of regulation of his work, if such regulation becomes necessary as a means of securing con- tinuity of operation. r^TERSTATE COUMEKGE. Under the interstate commerce clause of the Constitution regulation of labor difficulties on railroads can be defended. It is not considered necessary that the Constitution express specifically the right of the Government in this particu- 1 94 V. S. 113. 98 Ai-PBJSTUIX A CONSTITUTIONAL ISSUES INVOLVED. 99 lar. The decision in McGullocli v. Maryland ' has established firmly the doctrine of implied power. On that basis the Federal Government, admitting the right to regulate interstate commerce, can adopt any means appropriate for the proper safeguarding and protection of that commerce. The court has defined the things that come within the meaning of the term " interstate commerce." Justice Johnson, one of the justices giving a decision in Gibbons v. Ogden (1824), said explicitly that labor legislation came within that power : Commerce, in its simplest significance, means an exchange of goods; but in the advancement of society, labor, transportation. Intelligence, care, and various mediums of exchange, become commodities and enter into commerce; the sub- ject, the vehicle, and their various operations, become the object of commercial legislation.* The decision in Gilman v. Philadelphia, although applying especially to com- merce on water, defined the power of Congress in such a way as to make it an interesting one in connection with transportation on the railroads. Justice Swayne said : The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are public property of tie Nation, and subject to all the requisite legislation by Congress. This necessarily includes the power to keep them open •and free from any obstruction to their navigation, interposed by the States or otherwise ; to remove any obstructions when they exist ; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders. For these purposes Congress possesses all the powers which existed in the States before the adoption of the National Consti- tution, and which have always existed in the Parliament of England.* The contention here is that there is no reason to think that the power of Con- gress in legislating for the prevention of strikes, or rather of a tie-up of the transportation system of the country, is less than that which it has for keeping open the waterways over which it has jurisdiction. INTERSTATE COMMERCE AND TRANSPORTATION OF MAILS. Reference to one case will suffice to show to what length the power of Con- gress extends for the purpose of preventing an interruption of interstate com- merce and the carrying of the mails. This case, In re Debs,' is one of the most interesting, as well as one of the most important, which the Federal Supreme Court has ever decided in the matter of the regulation of the labor end of in- terstate commerce and the carrying of the mails. The decision of the court was discussed in Chapter II of this bulletin. Debs and others had been enjoined by a Federal court from combining for the pur- pose of interfering with the movement of trains in and around Chicago dur- ing the Pullman strike of 1894. They failed to obey the Injunction and were adjudged guilty of contempt of court. The Federal Supreme Court refused to grant a writ of habeas corpus to the offenders. Mr. Justice Brewer asked whether the relation of the National Government to the movement of interstate com- merce and the transportation of tlie mails authorized the Government in taking whatever means were necessary to prevent an interruption of such commerce and the movement of the mails. He said: = 4 Wheat. 316. 39 Wheat. 229, 230. 43 Wall. 724, 725. E158 U. S. 564. 100 USE OF FEDERA.L POWER IN RAILWAY LABOE DISPUTES. As under the Constitution, power over interstate commerce and the trans- portation of the malls is vested in the National Government, and Congress by virtue of such grant has assumed actual and direct control, it follows that the National Government may prevent any unlawful interference therewith. The entire strength of the Nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights intrusted by the Constitution to its care. The strong arm of the National Government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails. If the emergency arises the army of the Nation and all its militia are at the service of the Nation to compel obedience to its laws. This would appear to be a clear recognition of the powers and of the obliga- tion of the Government to secure the uninterrupted and continuous movement of interstate commerce and of the mails. Measures for the prevention of a tie-up of traffic because of a strike would come within the bounds of this decision. THE POLICE POWER. The police power is another basis upon which legislation for the prevention of railway labor troubles can be supported. A decision apparently adverse to the extension of the power of Congress in legislating for the prevention of railway labor troubles was made in 1908, in Adair v. V. S." The case involved the constitutionality of section 10 of the Erdman Act, the section which made it unlawful for a railroad to discharge an employee because of membership or nonmembership in a labor union. Mr. Justice Harlan held that the provision was invalid as an interference with the freedom of contract and a deprivation of property without due process of law : * * * We hold that there is no such connection between interstate com- merce and membership in a labor organization as to authorize Congress to make it a crime against the United States for an agent of an interstate car- rier to discharge an employee because of such membership on his part. In obiter dicta, Mr. Justice Harlan said that in the individual wage contract the employer and the employee were on an equal basis and that no inter- ference in this contract by the Government was justified. In his dissenting opinion, however. Mi-. Justice Holmes held that this act was justified under the police power ; that the employer and the employee were not of equal power in the individual wage contract: I confess that I think the right to make contracts at will that has been derived from the word " liberty " in the amendments has been stretched to its extremes by the decisions; but they agree that sometimes the right may be restrained. Where there is, or generally is believed to be, an important ground of public policy for restraint, the court does not forbid it, whether this court agrees or disagrees with the policy pursued. It can not be doubted that to prevent strikes, and in so far as possible, to foster its scheme of arbitration might be deemed by Congress an important point of policy, and I think it is impossible to say that Congress might not reasonably think that the provision in questioa would help a good deal to carry its policy along. Mr. Justice Holmes dissented in the similar case of Coppage v. Kansas ' (1915) A statute of Kansas made it illegal for an employer to declare the employment of a workingman conditional upon his agreement not to join a labor union The statute was held invalid for the reasons that were said to apply in the Adair case. Mr. Justice Holmes said that the former case should be overruled ]\Ir. .Justice Hughes concurred with Mr. Justice Day in a dissenting opinion • 208 U. S. 161. '236 U. S. 1. APPENDIX A — CONSTITUTIONAL ISSUES INVOLVED. 101 It is therefore the thoroughly established doctrine of this court that liberty of contract may be circumscribed in the interests of the States and the welfare of the people. Whether a given exercise of such authority transcends the limits of the legislative authority must be determined In each case as it arises. The preservation of the police power of the States, under the authority of which that great mass of legislation has been enacted which has for its purpose the promotion of the health, safety, and welfare of the public, is of the utmost importance. The constitutionality of two employers' liability acts (1906, 1908) has been before the United States Supreme Ck)urt. Both these cases involved the police power of the Federal Government. The first decision" (1908) declared the law as enacted by the Federal Government invalid. This was done, however, on the ground that the law applied to employees doing only an intrastate commerce, as well as to those engaged in Interstate commerce. But the dissenting opinion of Justice Moody is relevant to the query here. He said : It would seem, therefore, that when persons are employed in interstate or foreign commerce, as the employment is an essential part of that commerce, its terms and conditions and the rights and duties which grow out of it, are under the control of Congress, subject only to the limits on the exercise of that control prescribed by the Constitution. This has been the view always expressed or implied by this court. The second employers' liability law was upheld by the Federal Supreme Court" (1912). The decision of the court as given by Mr. Justice Van Devanter defined the power of Congress over interstate commerce : This power over commerce among the States, so conferred upon Congress, is complete in itself, extends incidentally to every instrument and agent by which such commerce is carried on, may be exerted to its utmost extent over every part of such commerce, and is subject to no limitations save such as are prescribed in the Constitution. But, of course, it does not extend to any matter which does not have a real or substantial relation to such commerce. It would appear that this substantial relationship does exist between inter- state commerce and the prevention of an interruption of the movement of such commerce because of strikes on the railroads. Further evidence of the power of Congress to grapple with the situation is apparent in the decision of the Supreme Court in upholding the Adamson law in 1917.'° Mr. Chief Justice White said that the establishment of the 8-hour day for railway employees was so evidently within the power of Congress that he would not discuss the matter. The law was upheld strictly as an emergency measure for the prevention of an interruption of interstate commerce. After having given a description of the threatened interruption, Mr. Chief Justice White said: We are of opinion that the reasons stated establish that from the point of view of inherent power the act which is before us was clearly within the, legislative power of Congress to adopt, and that in substance and effect it amounted to an exertion of its authority under the circumstances to com- pulsorily arbitrate the dispute between the parties by establishing as the subject matter of that dispute a legislative standard of wages operative and binding as a matter of law upon both parties, * * * a power none the less efficaciously exerted by direct legislative act instead of by the enactment of other and appropriate means providing for the bringing about of such result. The decision of Adair v. U. S., in so far as the right to contract was in- volved, seems to have been overruled by this later decision r In other words, considering comprehensively the situation of the employer and the employee in the light of the obligations arising from the public interest S207 tr. S. 463. 9 ooq TT S 1. 10 Wilson V. New, 243 U. S. 332 (1917). 102 USE OF FEDEEAL POWER IN EAILWAY LABOE DISPUTES. and of the work In which they are engaged and the degree of legislation which may be lawfully exerted by Congress as to the business, it must follow that the exercise of the lawful governmental right is controlling. * * * The capacity to exercise the right free from legislative interference affords no ground for saying that legislative power does not exist to protect the public interest from the injury resulting from a failure to exercise the private right. An examination of the cases cited shows that the power of Congress in legislating for the prevention of railway labor strikes, or for the prevention of an interruption of the movement of interstate commerce for any reason, is ample to meet the situation at the present time in the United States. The only limitation is that placed upon the method of regulation, i. e., that it shall not violate any constitutional provision. Since the question of constitutionality is no. barrier to the organization of some preventive agency, it remains for the American people, through Congress, to decide which of the possible methods is, in the long run, the best one and the one calculated to produce the desired results. APPENDIX B.— TEXT OF ACTS REGULATING RAILWAY LABOR DISPUTES. ACT OF OCTOBER 1, 1888. [25 Stat. 501.] Section 1. Whenever differences or controversies arise between railroad or other transportation companies engaged in the transportation of property or passengers between two or more States of the United States, between a Terri- tory and State, within the Territories of the United States, or within the Dis- trict of Columbia, and the employees of said' railroad companies, which differ- ences or controversies may hinder, impede, obstruct, interrupt, or affect such transportation of property or passengers, if, upon the written proposition of either party to the controversy to submit their differences to arbitration, the other party shall accept the proposition, then and in such event the railroad com- pany is hereby authorized to select and appoint one person, and such employee or employees, as the case may be, to select and appoint another person, and the two persons thus selected and appointed to select a third person, all three of whom shall be citizens of the United States and wholly impartial and dis- interested in respect to such differences or controversies ; and the three persons thus selected and appointed shall be, and they are hereby, created and consti- tuted a board of arbitration, with the duties, powers, and privileges hereinafter set forth. Sec. 2. The board of arbitration provided for in the first section of this act shall possess all the powers and authority in respect to administering oaths, subpoenaing witnesses and compelling their attendance, preserving order during the sittings of the board, and requiring the production of papers and writings relating alone to the subject under investigation now possessed and belonging to the United States commissioners appointed by the circuit court of the United States ; but in no case shall any witness be compelled to disclose the secrets or produce the records or proceedings of any labor organization of which he may be an officer or member ; and said board of arbitration may appoint a clerk and employ a stenographer, and prescribe all reasonable rules and regulations, not inconsistent with the provisions of this act, looljing to the speedy advancement of the differences and controversies submitted to them to a conclusion and de- termination. Bach of said arbitrators shall take an oath to honestly, fairly, and faithfully perform his duties, -and that he is not personally Interested in the subject matter in controversy, which oath may be administered by any State or Territorial officer authorized to administer oaths. The third person so selected and appointed as aforesaid shall be president of said board ; any order, finding, conclusion, or award made by a majority of such arbitrators shall be Of the same force and effect as if all three of such arbitrators concurred therein or united in making the same. Sec. 3. It shall be the duty of the said board of arbitration, immediately upon their selection, to organize at the nearest practicable point to the place of the origin of the difficulty or controversy, and to hear and determine the matters of difference which may be submitted to them in writing by all the parties giving them full opportunity to be heard on oath, in person and by witnesses and also granting them the right to be represented by counsel ; and after concluding its investigations said board shall publicly announce its de- cision which, with the findings of fact upon which it Is based, shall be reduced to writing and signed by the arbitrators concurring therein, and, together with the testimony taken in the case, shall be filed with the Commissioner of Labor of the United States, who shall make such decision public as soon as the same shall have been received by him. 104 TJSE OF FEDEEAL POWER IN RAILWAY LABOR DISPUTES. Sec. 4. It shall be the right of any employees engaged in the controversy to appoint, by designation in writing, one or more persons to act for them in the selection of an arbitrator to represent them upon the board of arbitration. Sec. 5. Each member of said tribunal of arbitration shall receive a com- pensation of ten dollars a day for the time actually employed. That the clerk appointed by said tribunal of arbitration shall receive the same fees and com- pensation as clerks of United States circuit courts and district courts receive for like services. The stenographer shall receive as full compensation for his services ten cents for each folio of an hundred words of testimony taken and reduced to writing before said arbitrators. United States marshals or other persons serving the process of said tribunal of arbitration shall receive the same fees and compensation for such services as they would receive for like services upon the process issued by the United States commissioners. Witnesses attend- ing before said tribunal of arbitration shall receive the same fees as witnesses attending before United States commissioners. All of said fees and compensa- tion shall be payable by the United States in like manner as fees and compen- sation are payable in criminal causes under existing laws : Provided, That the said tribunal of arbitration shall have power to limit the number of witnesses in each case where fees shall be paid by the United States : And provided further, That the fees and compensation of the arbitrators, clerks, stenog- raphers, marshals, and others for service of process, and witnesses under this act shall be examined and certified by the United States district judge of the district in which the arbitration is held before they are presented to the account- ing officers of the Treasury Department for settlement, and shall then be sub- ject to the provisions of section eight hundred and forty-six of the Revised Statutes of the United States ; and a sufiicient sum of money to pay all expenses under this act and to carry the same into effect is hereby appropriated out of any money in the Treasury not otherwise appropriated. And provided likewise. Not more than five thousand dollars shall be expended in defraying the costs of any single investigation by the commission hereinafter provided for. Sec. 6. The President may select two commissioners, one of whom at least shall be a resident of the State or Territory in which the controversy arises, who, together with the Commissioner of Labor, shall constitute a temporary commission for the purpose of examining the causes of the controversy, the conditions accompanying, and the best means for adjusting it ; the result of which examination shall be immediately reported to the President and Congress, and on the rendering of such report the services of the two commissioners shall cease. The services of the commission, to be ordered at the time by the Presi- dent and constituted as herein provided, may be tendered by the President for the purpose of settling a controversy such as contemplated, either upon his own motion, or upon the application of one of the parties to the controversy, or upon the application of the executive of the State. Sec. 7. The commissioners provided in the preceding section shall be entitled to receive ten dollars each per day for each day's service rendered, and the expenses absolutely incurred in the performance of their duties; and the expenses of the Commissioner of Labor, acting as one of the commission; shall also be reimbursed to him. Such compensation and expenses shall be paid by the Treasurer of the United States, on proper vouchers, certified to by the Commissioner of Labor and approved by the Secretary of the Interior. Sec. 8. Upon the direction of the President, as hereinbefore provided, the commission shall visit the locality of the pending dispute, and shall have all the powers and authority given in section 2, to a board of arbitration, and shall make careful inquiry into the cause thereof, hear all persons .interested therein who may come before it, advise the respective parties what if any- thing, ought to be done or submitted to by either or both to adjust such' dispute and make a written decision thereof. This decision shall at once be made public, shall be recorded upon proper books of record to be kept in the oflSce of the Commissioner of Labor, who shall cause a copy thereof to be filed with the secretary of the State or Territory, or States or Territories, in which the con- troversy exists. Sec. 9. In each case the commissioners who may be selected as provided shall before entering upon their duties, be sworn to the faithful discharge thereof' The Commissioner of Labor shall be chairman ex officio of the commission and may appoint one or more clerks or stenographers to act in each controversy only which clerks or stenographers shall be compensated at a rate not exceeding six dollars per day each, and actual expenses incurred shall be reimbursed APPENDIX B TEXT OF ACTS. 105 Sec. 10. The Commissioner of Labor shall, as soon as possible after the passage of this act, establish such rules of procedure as shall be approved by the ^resident; but the commission shall permit each party to a controversy to appear m person or by counsel, and to examine and cross-examine witnesses All Its proceedmgs shall be transacted in public, except when in consultation for the purpose of deciding upon the evidence and arguments laid before It The chairman of the commission is hereby authorized to administer oaths to wit- nesses in all investigations conducted by the commission, and such witnesses shall be subpoenaed in the same manner as witnesses are subpoenaed to appear before United States courts and commissioners, and they shall each receive the same fees as witnesses attending before United States commissioners : Provided That said temporary board of commissioners shall have the power to limit the number of witnesses in each case where fees shall be paid by the United States Sec. 11. All fees, expenses, and compensation of -this commission shall be paid as hereinbefore provided in section five of this act. ACT OE JUNE 1, 1898 (ERDMAST ACT). [30 Stat 424.] The provisions of this act shall apply to any common carrier or carriers and their officers, agents, and employees, except masters of vessels and seamen, as defined In section forty-six hundred and twelve, Revised Statutes of the United States, engaged in the transportation of passengers or property wholly by railroad, or partly by railroad and partly by water, for a continuous carriage or shipment, from one State or Territory of the United States, or the District of Columbia, to any other State or Territory of the United States, or the District of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States. The term " railroad " as used in this act shall incljide all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corporation operating p railroad, whether owned or operated under a contract, agreement, or lease ; and the term " transportation " shall include all instrumentalities of shipment or carriage. The term " employees " as used in this act shall include all persons actually engaged in any capacity in train operation or train service of any description, and notwithstanding that the cars upon or in which they are employed may be held and operated by the carrier under lease or other contract : Provided, however, That this act shall not be held to apply to employees of street railroads and shall apply only to employees engaged in railroad train service. In every such case the carrier shall be responsible for the acts and defaults of such employees in the same manner and to the same extent as if said cars were owned by it and said employees directly employed by it, and any provisions to the contrary of any such lease or other contract shall be binding only as between the parties thereto and shall not affect the obligations of said carrier either to the public or to the private parties concerned. Sec. 2. That whenever a controversy concerning wages, hours of labor, or conditions of employment shall arise between a carrier sul3,1ect to this act and •the employees of such carrier, seriously interrupting or threatening to inter- rupt the business of said carrier, the chairman of the Interstate Commerce Commission and the Commissioner of Labor shall, upon the request of either party to the controversy, with aU practicable expedition, put themselves in communication with the parties to such controversy, and shall use their best efforts, by mediation and conciliation, to amicably settle the same ; and if such efforts shall be unsuccessful, shall at once endeavor to bring about an arbitration of said controversy in accordance with the provisions of this act. Sec. 3. That whenever a controversy shall arise between' a carrier subject to this act and the employees of such carrier which can not be settled by mediation and conciliation in the manner provided in the preceding section, said controversy may be submitted to the arbitration of a board of three per- sons, who shall be chosen In the manner following : One shall be named by the carrier or employer directly interested; the other shall be named by the labor organization to which the employees directly interested belong, or, if they belong to more than one, by that one of them which specially represents em- ployees of the same grade and class and engaged in services of the same nature as said employees so directly Interested : Provided, Tioioever, That when a con- 106 USE OF FEDEEAL POWER IN EAILWAY LABOR DISPUTES. troversy involves and affects the interests of two or more classes and grades of employees belonging to different labor organizations, such arbitrator shall be agreed upon and designated by the concurrent action of all such labor organ- izations ; and in cases vs^here the majority of such employees are not members of any labor organization, said employees may by a majority vote select a committee of their own number, which committee shall have the right to select the arbitrator on behalf of said employees. The two thus chosen shall select the third commissioner of arbitration ; but, in the event of their failure to name such arbitrator within five days after their first meeting, the third arbitrator shall be named by tlie commissioners named in the preceding. A majority of said arbitrators sliall be competent to make a valid and binding award under the provisions hereof. The submission shs^U be in writing, shall be signed by the employer and by the labor organization representing the employees, shall specify the time and place of meeting of said board of arbitration, shall state the questions to be decided, and shall contain appropriate provisions by which the respective parties shall stipulate, as follows : First. That the board of arbitration shall commence their hearings within ten days from the date of the appointment of the third arbitrator, and shall find and file their award, as provided in this section, within thirty days from the date of the appointment of the third arbitrator ; and that pending the arbi- tration the status existing Immediately prior to the dispute shall not be changed : Provided, That no employee shall be compelled to render personal service without his consent. Second. That the award and the papers and proceedings, including the testi- mony relating tliereto certified under the hands of the arbitrators and which shall have the force and effect of a bill of exceptions, shall be filed in the clerk's office of the circuit court of the United States for the district wherein the controversy arises or the arbitration is entered into, and shall be final and conclusive upon both parties, unless set aside for error of law apparent on the record. Third. That the respective parties to the award will each faithfully execute the same, and that the same may be specifically enforced in equity so far as the powers of a court of equity permit : Provided, That no injunction or other legal process shall be issued which shall compel the performance by any laborer against his will of a contract for personal labor or service. Fourth. That employees dissatisfied with the award shall not by reason of such dissatisfaction quit the service of the employer before the expiration of three months from and after the making of such award without giving thirty days' notice in writing of their intention so to quit. Nor shall the employer dissatisfied with such award dismiss any employee or employees on account of such dissatisfaction before the expiration o* three months from and after the making of such award without giving thirty days' notice in vsTiting of his intention so to discharge. Fifth. That said award shall continue in force as between the parties thereto for the period of one year after the same shall go into practical operation and no new arbitration upon the same subject between the same employer and the same class of employees shall be had until the expiration of said one year If the award Is not set aside as provided in section four. That as to individual employees not belonging to the labor organization or organizations which shall enter into the arbitration, the said arbitration and the award made therein shall not be binding, unless the said individual employees shall give assent in« writing to become parties to said arbitration. Sec. 4. That the award being filed in the clerk's office of a circuit court of the United States, as hereinbefore provided, shall go into practical operation and' judgment shall be entered thereon accordingly at the expiration of ten days from such filing, unless within such ten days either party shall file exceptions thereto for matter of law apparent upon the record, in which case said award shall go into practical operation and judgment be entered accordingly when such exceptions shall have been finally disposed of either by said circuit court or on appeal therefrom. At the expiration of ten days from the decision of the circuit court upon exceptions taken to said award, as aforesaid, judgment shall be entered in accordance with said decision unless during said ten days either party shall appeal therefrom to the circuit court of appeals. In such case only such portion of the record shall be transmitted to the appellate court as is necessary to the proper understanding and consideration of the questions of law presented hv said exceptions and to be decided. ^ APPENDIX B — TEXT OF ACTS. ' 107 The determination of said circuit court of appeals upon said questions shall be final, and being certified by the clerk thereof to said circuit court, judgment pursuant thereto shall thereupon be entered' by said circuit court. If exceptions to an award are finally sustained, judgment shall be entered setting aside the award. But in such case the parties may agree upon a judgment to be entered disposing of the subject matter of the controversy, which judgment when entered shall have the same force and efEect as judgment entered upon an award. Sec. 5. That for the purposes of this act the arbitrators herein provided for, or either of them, shall have power to administer oaths and affirmations, sign subpoenas, require the attendance and testimony of witnesses, and the produc- tion of such books, papers, contracts, agreements, and documents material to a just determination of the matters under investigation as may be ordered by the court ; and may invoke the aid of the United States courts to compel wit- nesses to attend and testify and to produce such books, papers, contracts, agree- ments, and documents to the same extent and under the same conditions and penalties as is provided for in the act to regulate commerce, approved February fourth, eighteen hundred and eighty-seven, and the amendments thereto. Sec. 6. That every agreement of arbitration under this act shall be acknowl- edged by the parties before a notary public or clerk of a district or circuit court of the United States, and when so acknowledged a copy of the same shall be transmitted to the chairman of the Interstate Commerce Commission, who shall file the same in the office of said commission. Any agreement of arbitration which shall be entered into conforming to this act, except that it shall be executed by employees individually instead of by a labor organization as their representative, shall, -when duly acknowledged as herein provided, be transmitted to the chairman of the Interstate Commerce Commission, who shall cause a notice in writing to be served upon the arbi- trators, fixing a time and place for a meeting of said board, which shall be within fifteen days from the execution of said agreement of arbitration : P^ro- vided, however, That the said chairman of the Interstate Commerce Commission shall decline to call a meeting of arbitrators under such agreement unless it be shown to his satisfaction that the employees signing the submission repi'esent or include a majority of all employees in the service of the same employer and of the same grade and class, and that an award pursuant to said submission can justly be regarded as binding upon all such employees. Sec. 7. That during the pendency of arbitration under this act it shall not be lawful for the employer, party to such arbitration, to discharge the em- ployees, parties thereto, except for inefficiency, violation of law, or neglect of duty ; nor for the organization representing such employees to order, nor for the employees to unite in, aid, or abet, strikes against said employer; nor, during a period of three months after an award under such an arbitration, for such employer to discharge any such employees, except for the causes aforesaid, without giving thirty days' written notice of an intent so to dis- charge ; nor for any of such employees, during a like period, to quit the service of said employer without just cause, without giving to sa4d employer thirty days' written notice of an intent so to do ; nor for such organization represent- ing such employees to order, counsel, or advise otherwise. Any violation of this section shall subject the offending party to liabUity for damages : Pro- vided, That nothing herein contained shall be construed to prevent any em- ployer, party to such arbitration, from reducing the number of its or his em- ployees whenever in its or his judgment business necessities require such re- duction. ^ „ Sec 8 That in every incorporation under the provisions of chapter five hundred and sixty-seven of the United States Statutes of eighteen hundred and eighty-five and eighteen hundred and eiglity-six it must be provided in the articles of incorporation and in the constitution, rules, and by-laws that a member shall cease to be such by participating in or by instigating force or violence against persons or property during strikes, lockouts, or boycotts, or by seeking to prevent others from working through violence, threats, or intimida- tions Members of such incorporations shall not be personally liable for the acts, debts, or obligations of the corporations, nor shall such corporations be liable for the acts of members or others in violation of law ; and such corpora- tions may appear by designated representatives before the board created by this act, or in any suits or proceedings for or against such corporations or their members in any of the Federal courts. 108 USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES. , Sec. 9. That whenever receivers appointed by Federal courts are in the possession and control of railroads, the employees ppon such railroads shall have the right to be heard in such courts upon all questions affecting the terms and conditions of their employment, through the officers and representatives of their associations, whether incorporated or unincorporated, and no reduc- tion of wages shall be made by such receivers without the authority of the court therefor upon notice to such employees, said notice to be not less than twenty days before the hearing upon the receivers' petition or application, and to be posted upon all customary bulletin boards along or upon the railway operated by such receiver or receivers. Sec. 10. That any employer subject to the provisions of this act and any officer, agent, or receiver of such employer who shall require any employee, or any person seeljing employment, as a condition of such employment, to enter into an agreement, either written or verbal, not to become or remain a member of any labor corporation; association, or organization ; or shall threaten any employee with loss of employment, or shall unjustly discriminate against any employee because of his membership in such a labor corporation, association, or organization ; or who shall require any employee or any person seeking employ- ment, as a condition of such employment, to enter into a contract whereby such employee or applicant for employment shall agree to contribute to any fund for charitable, social, or beneficial purposes; to release such employer from legal liability for any personal injury by reason of any benefit received from such fund beyond the proportion of the benefit arising from the employer's con- tribution to such fund ; or who shall, after having discharged an employee, attempt or conspire to prevent such employee from obtaining employment, or who shall, after the quitting of an employee, attempt Or conspire to prevent such employee from obtaining employment, is hereby declared to be guilty of a mis- demeanor, and, upon conviction thereof In any court of the United States of competent jurisdiction in the district in which such offense was committed, shall be punished for each offense by a fine of not less than one hundred dollars and not more than one thousand dollars. Sec. 11. That each member of said board of arbitration shall receive a com- pensation of ten dollars per day for the time he is actually employed, and his traveling and other necessary expenses ; and a sum of money sufficient to pay the same, together with the traveling and other necessary and proper expenses of any conciliation or arbitration had hereunder, not to exceed ten thousand dollars in any one year, to be approved by the chairman of the Interstate Com- merce Commission and audited by the proper accounting officers of the Treasury, is hereby appropriated for the fiscal years ending June thirtieth, eighteen hun- dred and ninetr-eight, and June thirtieth, eighteen hundred and ninety-nine, out of any money In the Treasury not otherwise appropriated. Sec. 12. That the act to create boards of arbitration or commission for set- tling controversies and differences between railroad corporations and other com- mon carriers engaged in interstate or territorial transportation of property or persons and their employees, approved October first, eighteen hundred' and eighty-eight, is hereby repealed. ACT OF JULY 15, 1913 (NEWIANDS ACT). [38 Stat, 63a Cong., ch. 6.] The provisions of this act shall apply to any common carrier or carriers and their officers, agents, and employees, except masters of vessels and seamen, as defined in section forty-six hundred and twelve, Revised Statutes of the United States, engaged In the transportation of passengers or property wholly by railroad, or partly by railroad and partly by water, for a continuous car- riage or shipment from one State or Territory of the United States or the District of Columbia to any other State or Territory of the United States or the District of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States. The term " railroad" as used in this act shall Include all bridges and ferries used or operated in connection > with any railroad, and also all the road In use by any corporation operating a railroad, whether owned or operated under a contract, agreement, or lease ; and the term " transportation" shall include all instrumentalities of shipment or carriage. The term " employees " as used in this act shall Include all persons actually engaged in any capacity in train operation or train service of any description AJi-jr-iiJN jjix JJ — TJiXT OF ACTS. 109 and notwithstanding that the cars upon or in which they are employed may be held and operated by the carrier under lease or other contract : Provided, however, That this act shall not bQ held to apply to employees of street rail- roads and shall apply only to employees engaged in railroad train service. In every such case the carrier shall be responsible for the acts and defaults of such employees in the same manner and to the same extent as If said cars were owned by it and said employees directly employed by it, and any pro- visions to the contrary of any such lease or other contract shall be binding only as between the parties thereto and shall not atfect the obligations of said carrier either to the public or to the private parties concerned. A common carrier subject to the provisions of this act is hereinafter referred to as an "employer," and the employees of one or more of such carriers are hereinafter referred to as "employees." Sec. 2. That whenever a controversy concerning wages, hours of labor, or conditions of employment shall arise between an employer or employers and employees subject to this act interrupting or threatening to interrupt the busi- ness of said employer or employers to the serious detriment of the public interest, either party to such controversy may apply to the Board of Mediation and Conciliation created by this act and involie its services for tlie purpose of bringing about an amicable adjustment of the controversy ; and upon the request of either party the said board shall with till practicable espedition put itself in communication with the parties to such controversy and shall use its best efforts, by mediation and conciliation, to bring them to an agree- ment ; and if such efforts to bring about an amicable adjustment through mediation and conciliation shall be unsuccessful, the said board shall at once endeavor to induce the parties to submit their controversy to arbitration in accordance with the provisions of this act. In any case in which an interruption of traffic is imminent and fraught with serious detriment to the public interest, the Board of Mediation and Conciliation may, if in its judgment such action seem desirable, profOer its services to the respective parties to the controversy. In any case in which a controversy arises over the meaning or the application of any agreement reached through mediation under the provisions of this act either party to the said agreement may apply to the Board of Mediation and Conciliation for an expression of opinion from such board as to the meaning or application of such agreement and the said board shall upon receipt of such request give its opinion as soon as may be practicable. Sec. 3. That whenever a controversy shall arise between an employer or employers and employees subject to this act, which can not be settled through mediation and conciliation in the manner provided in the preceding section, Such controversy may be submitted to the arbitration of a board of six, or, if the parties to the controversy prefer so to stipulate, to a board of three persons, which board shall be chosen in the following manner: In the case of a board of three, the employer or employers and the employees, parties respectively to the agreement to arbitrate, shall each name one arbitrator ; and the two arbitrators thus chosen shall select the third arbitrator; but in the event of their failure to name the third arbitrator within five days after their first meeting, such third arbitrator shall be named by the Board of Mediation and Conciliation. In the case of a board of six, the employer or employers and the employees, parties respectively to the agreement to arbitrate, shall each name two arbitrators, and the four arbitrators thus chosen shall, by a majority vote, select the remaining two arbitrators; but in the event of their failure to name the two arbitrators within fifteen days after their first meeting the said two arbitrators, or as many of them as have not been named, shall be named by the Board of Mediation and Conciliation. In the, event that the employees engaged in any given controversy are not members of a labor organization, such employees may select a committee which shall have the right to name the arbitrator, or the arbitrators, who are to be named by the employees as provided above in this section. Sec. 4. That the agreement to arbitrate — First. Shall be in writing; . . . ^ j ^ 4., Second. Shall stipulate that the arbitration is had under the provisions of this sot ' Third.' Shall state whether the board of arbitration is to consist of three °''Fourtt^"shau' be signed by duly accredited representatives of the employer or employers and of the employees ; no USE OF PEDEBAL POWER IN RAILWAY LABOR. DISPUTES. Fifth. Shall state specifically the questions to be submitted to the said board for decision ; Sixth. Shall stipulate that a majority of said board shall be competent to make a valid and binding award ; Seventh. Shall fix a period from the date of the appointment of the arbi- trator or arbitrators necessary to complete the board, as provided for in the agreement, within which the said board shall commence its hearings ; Eighth. Shall fix a period from the beginning of the hearings within which the said board shall make and file its award : Provided, That this period shall be thirty days unless a different period be agreed to ; Ninth. Shall provide for the date from which the award shall become effec- tive and shall fix the period during which the said award shall continue in force ; Tenth. Shall provide that the respective parties to the award will each faith- fully execute the same ; Eleventh. Shall provide that the award and the papers and proceedings, including the testimony relating thereto, certified under the hands of the arbitrators, and which shall have the force and effect of a bill of exceptions, shall be filed in the clerk's office of the district court of the United States for the district wherein IJie controversy arises or the arbitration is entered into, and shall be final and conclusive upon the parties to the agreement unless set aside for error of law apparent on the record ; Twelfth. May also provide that any difference arising as to the; meaning or the application of the provisions of an award made by a board of arbitra- tion shall be referred back to the same board or to a subcommittee of such board for a ruling, which ruling shall have the same force and effect as the original award ; and if any member of the original board is unable or unwilling to serve another arbitrator shall be named in the same manner as such original member was named. Sec. 5. That for the purposes of this act the arbitrators herein provided for, or either of them, shall have power to administer oaths and affirmations, sign subpcenas, require the attendance and testimony of witnesses and the produc- tion of such books, papers, contracts, agreements, and documents material to a just determination of the matters under investigation as may be ordered by the court ; and may invoke the aid of the United States courts to compel witnesses to attend and testify and to produce such books, papers, contracts, agreements, and documents to the same extent and under the same conditions and penalties as is provided for in the act to regulate commerce, approved February fourth, eighteen hundred and eighty-seven, and the amendments thereto. Sec. 6. That every agreement of arbitration under this act shall be acknowl- edged by the parties thereto before a notary public or a clerk of the district or the circuit court of appeals of the United States, or before a member of the Board of Mediation and Conciliation, the members of which are hereby authorized to take such acknowledgments; and when so acknowledged shall be delivered to a member of said board or transmitted to said board to be filed in its office. When such agreement of arbitration has been filed with the said board, or one of Its members, and when the said board, or a member thereof, has been furnished the names of the arbitrators chosen by the respective parties to the controversy, the board, or a member thereof, shall cause a notice in writing to be served upon the said arbitrators, notifying them of their appointment, requesting them to meet promptly to name the remaining arbitrator or arbi- trators necessary to complete the board, and advising them of the period within which, as provided in the agreement of arbitration, they are empowered to name such arbitrator or arbitrators. » When the arbitrators selected by the respective parties have agreed upon the remaining arbitrator or arbitrators, they shall notify the Board of Media- tion and Conciliation; and in the event of their failure to agree upon any or upon all of the necessary arbitrators within the period fixed by this act they shall, at the expiration of such period, notify the Board of Mediation and Conciliation of the arbitrators selected, if any, or of their failure to make or to complete such selection. If the parties to an arbitration desire the reconvening of a board to pass upon any controversy arising over the meaning or application of an award they shall jointly so notify the Board of Mediation and Conciliation, and shall state in such written notice the question or questions to be submitted to such APPENDIX B TEXT OF ACTS. Ill reconvened board. The Board of Mediation and Conciliation shall thereupon promptly communicate with the members of the board of arbitration or a sub- committee of such board appointed for such purpose pursuant to the provisions of the agreement of arbitration, and arrange for the reconvening of said board or subcommittee, and shaU notify the respective parties to the controversy of the time and place at which the board -tyill meet for hearings upon the mat- ters in controversy to be submitted to it. Sec. 7. That the board of arbitration shall organize and select its own chair- man, and. make all necessary rules for conducting its hearings ; but in its award or awards the said board shall confine itself to findings or recommenda- tions as to the questions specifically submitted to it or matters directly bear- ing thereon. All testimony before said board shall be given under oath or afBrmation, and any member of the board of arbitration shall have the power to administer oaths or affirmations. It may employ such assistants as may be necessary in carrying on its work. It shall, whenever practicable, be sup- plied with suitable quarters in any Federal building located at its place of meeting or at any place where the board may adjourn for its deliberations. The board of arbitration shall furnish a certified copy of its awards to the respective parties to the controversy, and shall transmit the original, together with the papers and proceedings and a transcript of the testimony taken at the hearings, certified under the hands of the arbitrators, to the clerk of the district court of the United States for the district wherein the controversy arose or the arbitration is entered into, to be filed in said clerk's office, as provided in paragraph eleven of section four of this act. And said board sliall also furnish a certified copy of its award, and the papers and proceedings, including the testimony relating thereto, to the Board of Mediation and Con- ciliation, to be filed in its office. The United States Commerce Court, the Interstate Commerce Commission, and the Bureau of Labor Statistics are hereby authorized to turn over to the Board of Mediation and Conciliation upon its request any papers and docu- ments heretofore filed with them and bearing upon mediation or arbitration proceedings held under the provisions of the act approved June first, eighteen hundred and ninety-eight, providing for mediation and arbitration. Sec. 8. That the award, being filed in the clerk's office of a district court of the United States as hereinbefore provided, shall go into practical opera- tion, and judgment shall be entered thereon accordingly at the expiration of ten days from such filing, unless within such ten days either party shall file exceptions thereto for matter of law apparent upon the record, in which case said award shall go into practical operation, and judgment be entered accord- ingly, when such exceptions shall have been finally disposed of either by said district court or on appeal therefrom. At the expiration of ten days from the decision of the district court upon ex- ceptions taken to said award as aforesaid judgment shall be entered in accord- ance with said decision, unless during said ten days either party shall appeal therefrom to the circuit court of appeals. In such case only such portion of the record shall be transmitted to the appellate court as is necessary to the proper understanding and consideration of the questions of law presented by said exceptions and to be decided. The determination of said circuit court of appeals upon said questions shall be final, and, being certified by the clerk thereof to said district court, judgment pursuant thereto shall thereupon be entered by said district court. If exceptions to an award are finally sustained, judgment shall be entered set- ting aside the award in whole or in part ; but in such case the parties may agree upon a judgment to be entered disposing of the subject matter of the contro- versy, which judgment when entered shall have the same force and effect as judgment entered upon an award. . Nothing in this act contained shall be construed to require an employee to render personal service without his consent, and no injunction or other legal process shall be issued which shall compel the performance by any employee against his will of a contract for personal labor or service. _ Sec 9 That whenever receivers appointed by a Federal court are in the pos- session and control of the business of employers covered by this act the em- nlovees of such employers shall have the right to be heard through their rep- resentatives in such court upon all questions affecting the terms and con- ditions of their employment ; and no reduction of wages shall be made by such receivers without the authority of the court therefor, after notice to such em- ployees said notice to be given not less than twenty days before the hearing 112 USE OF FEDEEAL POWER IN RAILWAY LABOE. DISPUTES. upon the receivers' petition or application, and to be posted upon all customary bulletin boards along or upon the railway or in the customary places on the premises of other employers covered by this act. Sec. 10. That each member of the board of arbitration created under the pro- visions of this act shall receive such compensation as may be fixed by the Board of Mediation and Conciliation, together witb his traveling and other necessary expenses. The sum of $25,000 or so much thereof as may be necessary, is hereby appropriated, to be immediately available and to continue available until the close of the fiscal year ending June thirtieth, nineteen hundred and fourteen, for the necessary and proper expenses incurred in connection with any arbitration or with the carrying on of the work of mediation and conciliation, including per diem, traveling, and other necessary expenses of members or employees of boards of arbitration and rent in the District of Columbia, furniture, ofiice fixtures and supplies, books, salaries, traveling expenses, and other necessary expenses of members or employees of the Board of Mediation and Conciliation, to be approved by the chairman of said board and audited by the proper ac- counting officers of the Treasury. Sec. 11. There shall be a Commissioner of Mediation and Conciliation, who shall be appointed by the President, by and with the advice and consent of the Senate, and whose salary shall be $7,500 per annum, who shall hold his office for a term of seven years and until a successor qualifies, and who shall be re- movable by the President only for misconduct in office. The President shall also designate not more than two other officials of the Government who have been appointed by and with the advice and consent of the Senate, and the offi- cials thus designated, together with the Commissioner of Mediation and Con- ciliation, shall constitute a board to be known as the United States Board of Mediation and Conciliation. There shall also be an Assistant Commissioner of Mediation and Conciliation, who shall be appointed by the President, by and with the advice and consent of the Senate, and whose salary shall be $5,000 per annum. In the absence of the Commissioner of Mediation and Conciliation, or when that office shall become vacant, the assistant commissioner shall exercise the functions and perform the duties of that office. Under the direction of the Commissioner of Mediation and Conciliation, the assistant commissioner shall assist in the work of media- tion and conciliation and when acting alone in any case he shall have the right to take- acknowledgments, receive agreements of arbitration, and cause the notices in writing to be served upon the arbitrators chosen by the respective parties to the controversy, as provided for in section five of this act. The act of June first, eighteen hundred and ninety-eight, relating to the media- tion and arbitration of controversies between railway companies and certain classes of their employees is hereby repealed : Provided, That any agreement of arbitration which, at the time of the passage of this act, shall have been exe- cuted in accordance with the provisions of said act of June first, eighteen hun- dred and ninety -eight, shall he governed by the provisions of said act of June first, eighteen hundred and ninety-eight, and the proceedings thereunder shall be conducted in accordance with the provisions of said act. ACT 01" SEPTEMBER 3, 5, 1916 (ADAMSON LAW). [39 Stat, 64tli Cong., Part I, ch. 436.] Beginning January first, nineteen hundred and seventeen, eight hours shall, in contracts for labor and service, be deemed a day's work and the measure or standard of a day's work for the purpose of reckoning the compensation for serv- ices of all employees who are now or may hereafter be employed by any common carrier by raUroad, except railroads independently owned and operated not exceeding one hundred miles in length, electric street railroads, and electric interurban railroads, which is subject to the provisions of the act of February fourth, eighteen hundred and eighty-seven, entitled "An act to regulate com- merce," as amended, and who are now or may hereafter be actually engaged in any capacity in the operation of trains used for the transportation of persons or property on railroads, except railroads independently owned and operated not exceeding ohe hundred miles in length, electric street railroads, and electric interurban railroads, from any Sta!te or Territory of the United States or the District of Columbia, to any other State or Territory of the United States or the District of Columbia, or from one place in a Territory to another place in the same Territory, or from any place in the United States to an adjacent foreign APPENDIX B TEXT OF ACTS. 113 country, or from any place in the United States through a foreign country to any other place in the United States : Provided, That the above exceptions shall not apply to railroads though less than one hundred miles in length whose prin- cipal business is leasing or furnishing terminal or transfer facilities to other railroads, or are themselves engaged in transfers of freight between railroads or between railroads and industrial plants. Sec. 2. That the President shall appoint a commission of three, which shall observe the operation and effects of the institution of the eight-hour standard workday as above defined and the facts and conditions affecting the relations between such common carriers and employees during a period of not less than six months nor more than nine months, in the discretion of the commission, and within thirty days thereafter such commission shall report its findings to the f resident and Congress ; that each member of the commission created under the revisions of this act shall receive such compensation as may be fixed by the President. That the sum of $25,000, or so much thereof as may be necessary, be, and hereby is, appropriated, out of any money in the United States Treasury not otherwise appropriated, for the necessary and proper expenses incurred in connection with the work of such commission, including salaries, per diem, traveling expenses of members and employees, and rent, furniture, office fixtures and supplies, books, salaries, and other necessary expenses, the same to be ap- proved by the chairman of said commission and audited by the proper account- ing officers of the Treasury. Sec. 3; That pending the report of the commission herein provided for and for a period of thirty days thereafter the compensation of railway employees subject to this act for a standard eight-hour workday shall not be reduced below the present standard day's wage, and for all necessary time in excess of eight hours such employees shall be paid at a rate not less than the pro rata rate for such standard eight-hour workday. Sec. 4. That any person violating any provision of this act shall be guilty of a misdemeanor and upon conviction shall be fined not less than $100 and not more than $1,000, or imprisoned not to exceed one year, or botli. ( TRANSP0B.TATI01T ACT, 1920 (ESCH-CTIMMrNS XAW). [U. S. Stat., eCtli Cong., 2d sess., ch. 01, Title III.] Section 300. When used in this title — (1) The term "carrier" includes any express company, sleeping car com- pany, and any carrier by railroad, subject to the interstate commerce act, except a street, interurban, or suburban electric railway not operating as a part of a general steam railroad system of transportation ; (2) The term "adjustment board" means any railroad board of labor adjustment established under section 302 ; (3) The term "Labor Board" means the Railroad Labor Board; (4) The term "commerce" means commerce among the several States or between any State, Territory, or the District of Columbia and any foreign nation or between any Territory or the District of Columbia and any State, or between any Territory and any other Territory, or between any Territory and the District of Columbia, or within any Territory or the District of Columbia, or between points in the same State but through any other State or any Territory or the District of Columbia or any foreign nation ; and (5) The term "subordinate ofllcial " includes officials of carriers of such class or rank as the commission shall designate by regulation formulated and issued after such notice and hearing as the commission may prescribe, to the carriers, and employees and subordinate officials of carriers, and organizations thereof 'directly to be affected by such regulations. Sec 301 It shall be the duty of all carriers and their officers employees, and agents to exert every reasonable effort and adopt every available naeans to flvnid anv interruption to the operation of any carrier growing out of any msputfbetweenihe carrier and' the employees or subordinate officials thereof. Alf such disputes shall be considered and, if possible, decided in conference ^e weln repreLSatives designated and authorized so to confer by the carriers, or the employees or subordinate officials thereof, directly interested m the dLpute If any dispute is not decided in such conference, t shall be referred by the parties thereto to the board which, under the provisions- of this title, is authorized to hear and decide such dispute. 79994°— 22 8 114 USE OF FEDEEAL POWER IN RAILWAY LABOR DISPUTES. Sec. 302. Railroad boards of labor adjustment may be established by agree- ment between any carrier, group of carriers, or the carriers as a whole, and any employees or subordinate official of carriers, or organization or group of organizations thereof. Sec. 303. Each such adjustment board shall, (1) upon the application of the chief executive of any carrier or organization of employees or subordinate ofiicials whose members are directly interested in the dispute, (2) upon the written petition signed by not less than 100 unorganized employees or subordi- nate officials directly interested in the dispute, (3) upon the adjustment board's own motion, or (4) upon the request of the Labor Board whenever' such board is of the opinion that the dispute is likely substantially to inter- rupt commerce, receive for hearing, and as soon as practicable and with due diligence, decide any dispute involving only grievances, rules, or working con- ditions, not decided as provided in section 301, between the carrier and its employees or subordinate officials, who are, or any organization thereof which is, in accordance with the provisions of section 302, represented upon any such adjustment board. Sec. 304. There is hereby established a board to be known as the " Railroad Labor Board " and to be composed of nine members, as follows : (1) Three members constituting the labor group, representing the employees and subordinate officials of the carriers, to be appointed by the President, by and with the advice and consent of the Senate, from not less than six nominees whose nominations shall be made and offered by such employees in such man- ner as the commission shall by regulation prescribe ; (2) Three members, constituting the management group, representing the carriers, to be appointed by the President, by and with the advice an:;:^', J.^ ■oi a: ;«^.