CORNELL UNIV! 
 
 3 1924 078 7 
 
 1 01 
 
 
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 LAW AND ORDER 
 IN INDUSTRY 
 
 JULIUS HENRY GOHEN 
 
THE 
 
 MARTIN P. CATHERWOOD 
 
 LIBRARY 
 
 OF THE 
 
 SCHOOL 
 
 OF 
 
 INDUSTRLAL AND LABOR 
 
 RELATIONS 
 
 AT 
 CORNELL UNIVERSITY 
 
The original of tliis 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/cu31 92407871 1 01 1 
 
LAW AND ORDER IN INDUSTRY 
 
THE MACMILLAN COMPANY 
 
 NBW YORE • BOSTON • CHICAGO • DALLAS 
 ATLANTA • SAN FRANCISCO 
 
 MACMILLAN & CO., Limited 
 
 LONDON • BOMBAY • CALCUTTA 
 UELBOUENB 
 
 THE MACMILLAN CO. OF CANADA. Ltd. 
 
 TORONTO 
 
LAW AND ORDER IN 
 INDUSTRY 
 
 FIVE YEARS' EXPERIENCE 
 
 BY 
 JULIUS HENRY COHEN 
 
 N*m fork 
 
 THE MACMILLAN COMPANY 
 
 1916 
 
 All rights resened 
 
COPYRIOHT, I916 
 
 Bv THE MACMILLAN COMPANY 
 Set up and electrotyped. Published February, 1916, 
 
TO MAX M. SCHWARCZ, 
 
 OF THE SMALL BAND WHO BLAZED 
 
 A TRAIL THROUGH THE THICK FOREST, 
 
 THE FIRST TO ENTER THE LAND 
 
 OF MYSTERY. 
 
 PROUD, BRAVE, LOYAL, A DEAR AND 
 
 A GOOD FRIEND TO ALL WHO 
 
 LABORED TRULY. 
 
 Property of 
 MARTIN P. CATHEftWOOD inRARt 
 
 NEW YORK STATE SCHOOL Of 
 iNOUSTRIAL AND LABOR REUTiONS 
 
 Cornell University 
 
TO THE READER 
 
 Magazine writers have written sketches and Govern- 
 ment investigators have compiled statistics about the 
 New York experiences with the "Protocol" — a curious 
 animal newly arrived in the industrial menagerie. (He 
 is but five years old.) No one has tried to take his pic- 
 ture in motion. 
 
 The photographer here is a lawyer. Some people 
 think that disqualifies him from being a photographer, 
 or for that matter, from being anything human. Worse 
 still, he is a lawyer for " capitahsts," i. e., men who 
 employ labor, and who, it is assumed, generally do no 
 labor themselves — ^like the lawyer. In common with 
 his kind, the lawyer likes to study the antics of animals. 
 This one is alive, very much alive. Perhaps the picture 
 is not focused as you would like it. You may like it 
 at a different angle. Then run the reels over again and 
 be your own censor. In other words, here are the facts: 
 draw your own inferences if the inferences in the book 
 are not — to your mind — sound. 
 
 vu 
 
CONTENTS 
 
 CHAPTES PAGE 
 
 To THE Reader vii 
 
 Introduction xi 
 
 I. Anarchy i 
 
 II. The Closed Shop 14 
 
 III. The Policy of the Protocol 28 
 
 IV. The Joint Board of Sanitary Control 43 
 
 V. The Board of Grievances 61 
 
 VI. The Chief Clerks and the Deputies 69 
 
 VII. A Sidelight 74 
 
 VIII. The New York Cloak Business 84 
 
 IX. The Crisis of 1913 loi 
 
 X. 1914 — ^The Committee on Immediate Action. ... 124 
 
 XI. Hiring and Discharging 128 
 
 XII. 1914-1915. The Clash 136 
 
 XIII. 1915. The Board on Arbitration. What is 
 
 "Fair and Reasonable" ? 153 
 
 XIV. The Termination of the Protocol 158 
 
 XV. The Mayor's Council of Conciliation 168 
 
 XVI. The New Trial Board 178 
 
 XVII. The Revival of the Protocol 186 
 
 XVIII. Inferences 191 
 
 XIX. Law Breaking 205 
 
 XX. The White Protocol Label 216 
 
 XXI. A Federal Industrial Council 225 
 
 ix 
 
X CONTENTS 
 
 CHAPTER PAGE 
 
 XXII. Vision and Effort 229 
 
 Appendix A — Text of the Protocol Agreement 243 
 
 Appendix B — Rules and Plan of Procedure 249 
 
 Appendix C — ^Decision of Board of Arbitration 258 
 Appendix D — Findings and Recommendations of 
 
 Council of Conciliation 280 
 
 Appendix E — Industrial Agreements 288 
 
 Appendix F — Skeleton Outline of Provisions 
 of a Bill 291 
 
INTRODUCTION 
 
 The business of making clothes for women brings 
 up for the average male a picture of a highly expensive 
 dressmaker's establishment (to which his wife or daughter 
 repairs but too often for his pecuniary comfort), a tene- 
 ment house sewing machine with a sick, overworked 
 mother and a string of helpless children scampering 
 about, or a "sweatshop" that the Board of Health 
 ought to suppress — and why doesn't it? — or possibly 
 a Montague Glass play. But to those who know, it is 
 an industry that employs in New York alone over one 
 hundred thousand people, has a capital investment of 
 $100,000,000, and in the industries of the country ranks 
 eleventh in number of workers employed and fifteenth 
 in value of products manufactured. In New York City 
 alone over half of all the clothing worn by the men and 
 women in the United States is made. It is estimated 
 that seventy per cent of the women's clothing manu- 
 factured in the United States is made in New York City. 
 According to the census for 1909, the annual output of 
 women's clothing was $266,477,000. It is an industry 
 where the dividing line between capitahst and laborer 
 is not easy to locate. With a few hundred dollars a 
 
jdi INTRODUCTION 
 
 worker can buy a machine, rent a small loft, secure 
 cloth on credit, and, if he has executive ability and works 
 hard, become a "boss." As is generally known, it is 
 one of those industries, both on the employers' and on 
 the workers' side, classified as "the Hebrew trades," 
 the percentage of Italian workers being very small. 
 
 The Protocol of Peace in the cloak and suit industry 
 was signed on September 2, 1910, and is to be foimd as 
 Appendix A. It was signed after a very bitter strike 
 that involved nearly sixty thousand people. It has 
 preserved general peace in the industry since 1910, in 
 spite of the fact that during that time serious crises 
 have arisen in the industry. It came about through 
 the intervention, first, of Louis D. Brandeis, and later 
 of Louis Marshall, with the aid of Meyer London, the 
 lawyer for the Union, and myself, as coimsel for the 
 employers. By this document there was created a 
 Board of Arbitration, consisting of the appointee of 
 both sides and a third person chosen by both, a Board 
 of Sanitary Control made up of representatives of the 
 employers, workers, and the public, and a Board of 
 Grievances, made up of representatives of both sides. 
 The agreement in essence is, in its nature, a fundamental 
 constitution for the doing of business between the workers 
 and the employers, with a supreme judicial tribunal, a 
 conciliation and mediation department, a department 
 for the establishment of legislation by consent of both 
 
INTRODUCTION xm 
 
 parties, and an administration department. The Board 
 of Arbitration — the supreme judicial tribunal — was 
 originally made up of Louis D. Brandeis as chairman, 
 Hamilton Holt, and Morris Hillquit. In 191 2 Mr. Hill- 
 quit resigned and his place was taken by Dr. Walter E. 
 Weyl. In 1914 Dr. Weyl resigned and his place was 
 taken by Mr. William O. Thompson (counsel for the 
 United States Commission on Industrial Relations), 
 the other two members of the Board continuing until 
 the termination of the Protocol in May, 1915. The 
 Joint Board of Sanitary Control is made up of Dr. Wil- 
 liam J. Schieffelin, chairman, Miss Lillian D. Wald, 
 and Dr. Henry Moskowitz, as representatives of the 
 public, with two representatives of the employers and 
 two representatives of the unions. The Director of the 
 Board, under whose supervision the work is conducted, 
 is Dr. George M. Price, author of "The Modem Fac- 
 tory." 
 
 Through the institutions created by the Protocol, 
 the industry was lifted to a higher plane of sanitary and 
 health protection regulation, with marked material ad- 
 vances to the workers. Although the Protocol was 
 terminated in May, 1915, a few months later, through 
 the conciUatory efforts of the Mayor's Council of Con- 
 ciliation, consisting of Dr. Felix Adler, the leader of the 
 Society for Ethical Culture, Walter C. Noyes, former 
 judge of the United States Circuit Court of Appeals, 
 
XIV INTRODUCTION 
 
 George W. Kirchwey, a former Dean of the Columbia 
 Law School, Hemry Bruere, the City Chamberlain, 
 Louis D. Brandeis, the former head of the Board of 
 Arbitration, and Charles L. Bernheimer, the chairman 
 of the Committee on Arbitration of the Chamber of 
 Commerce, the Protocol was revived for two more years. 
 
 It was copied in the dress and waist industry in New 
 York, the clothing and cloakmaking industries in Chi- 
 cago, the cloak and dress and waist industries in Boston 
 and in Philadelphia. In New York City it was followed 
 also in three other branches of the needle-working in- 
 dustry — the misses' and children's wear, wrappers and 
 kimonos, and muslin underwear. 
 
 Through Protocol institutions for five and a half 
 years the cloak industry in New York has been an ex- 
 periment station for new methods of dealing with the 
 relations between employer and worker. In consequence, 
 it has been the subject of scientific research, govern- 
 mental investigation,* sanitary regulation,! magazine 
 composition, J and editorial comment, and every fresh 
 immigrant who expects to earn a living with the aid 
 of a needle learns soon after his arrival that the word 
 
 *See Bulletins, Bureau of Labor Statistics, Department of Labor, 
 Nos. 98, 144, I4S. 146, 147- 
 
 t See Reports, Joint Board of Sanitary Control. See Sanitary Con- 
 trol of an Industry by Itself by L. D. Wald, Report of International 
 Congress of Hygiene and Demography, 1913. 
 
 t Munsey, July, 1913; Survey, February i, 1913. 
 
INTRODUCTION xv 
 
 "Protocol" spells something new and mystical in the 
 industrial world. What is it? How came it about? 
 What lessons can be garnered from its experience? These 
 are the questions to which some answer, more or less 
 incomplete, may be found in the pages to foUow. 
 
 There has been much dissatisfaction with the work 
 of the Federal Industrial Relations Commission. But 
 in the testimony and reports (including those of the 
 special investigators) will be found material which it 
 is safe to predict will be drawn upon for many years to 
 come by students and legislators. Though here in the 
 effete east, we dispose of the entire work of the Com- 
 rhission when we satisfy ourselves that the chairman's 
 judicial poise and temperament have disappeared — 
 though he himself is authority for the statement that 
 he never possessed any — yet congressmen will find plenty 
 of material upon which to erect statutory proposals and 
 fill volumes of Congressional Records with debate. 
 
 One contribution the Commission has already made. 
 After careful study, the Commission is unanimous in 
 finding that the best hope for future industrial peace 
 lies in the direction of trades unions working with em- 
 ployers' associations in joint agreements — collective 
 bargaining, so called. Through this method all agree 
 we shall arrive at a better industrial day, meet the real 
 causes of industrial unrest, check abuse of power by em- 
 ployer and worker and bring order out of chaos. 
 
xvi INTRODUCTION 
 
 The Commission's report contains the following: 
 
 We believe that collective bargaining and joint agree- 
 ments are preferable to individual bargaining, and we 
 believe that the general public should support the unions 
 in their efforts to secure collective agreements. But this 
 can only be done through the influence of public opinion 
 without the force of law. It is based on the conclusion 
 that two opposing organizations, equally strong, are able 
 to drive out abuses practiced by the other.* 
 
 The employers on the Commission (Ballard, Wein- 
 stock and Aishton) say that as representatives of em- 
 ployers they agree with the members of the Commission 
 who represent the general public and also with those 
 representing organized labor "in beheving that imder 
 modern industrial conditions, collective bargaioing, 
 when fairly and properly conducted, is conducive to 
 the best good of the employer, the worker, and society."t 
 
 But the work of the Commission is thoroughly disap- 
 pointing to those who have passed the elementary grades 
 of education in the problem of industrial disputes. No- 
 where is the material so collated or put together that 
 the American people (meaning thereby the American 
 employer, the American worker, and the American 
 consumer) can form an intelligent judgment. 
 
 The Commission itself says that though public opinion 
 
 * Report of Federal Commission on Industrial Relations (1915), p. 37S- 
 t Id., p. 414. 
 
INTRODUCTION rvii 
 
 practically decides who shall win, where both sides are 
 fairly well balanced in strength "such public opinion, 
 however, to be of value, must be enlightened. Under 
 prevailing conditions this is almost impossible. All 
 that the public is now able to get, as a rule, are garbled 
 and ex parte statements, more or less misleading and 
 unreliable, which simply tend to confuse the public 
 mind." * The crying need for definite mformation on 
 the actual workings of collective bargaining, its strength, 
 its weaknesses, is not met by any of the reports of the 
 Commission. It has failed to meet the expectations 
 of those who hoped to get a reliable, unbiased survey, 
 such as one finds in the report of the Industrial Council 
 of Great Britain.f 
 
 The majority report (Manly-Walsh-Lennon-O'Con- 
 nell-Garretson) says: 
 
 The fundamental question for the Nation to decide, 
 for in the end public opinion will control here as else- 
 where, is whether the workers shall have an effective 
 means of adjusting their grievances, improving their 
 condition, and securing their liberty, through negotiation 
 with their employers, or whether they shall be driven by 
 necessity and oppression to the extreme of revolt.f 
 
 * Report of Federal Commission on Industrial Relations (igis), 
 pp. 409, 410. 
 
 t Reprinted as Bulletin No. 133, U. S. Department of Labor. 
 
 } Report of Federal Commission on Industrial Relations (1915), 
 p,89. 
 
xviii INTRODUCTION 
 
 But suppose you have the fullest acceptance of the 
 principle and theory of collective bargaining? Suppose 
 you have the two trade organizations, employers' asso- 
 ciation and union, working together, suppose there is 
 the fullest opportunity to adjust grievances, inhibition 
 against strikes and lockouts, the fullest and frankest 
 "recognition of the union." What then? Does it work? 
 If it does, how? If it does not, why? What are the 
 failures as well as the successes? What happens if for 
 the time being either organization is stronger than the 
 other? Are there abuses of power? Where? Where 
 does the public benefit? Where is it hurt? What should 
 the pubhc do about it? These questions the Commission 
 has failed to answer. If experience is the best, if not 
 the only lamp to guide one's feet, perhaps an intensive 
 study of five years' actual experience in one industry 
 may answer these questions. 
 
LAW AND ORDER IN INDUSTRY 
 
LAW AND ORDER IN INDUSTRY 
 CHAPTER I 
 
 ANARCHY 
 
 In 1907 I received my introduction to the cloak and 
 suit industry of New York. At that time, during the 
 lunch hour Fifth Avenue presented a remarkable sight. 
 Where once ladies and gentlemen of fashion promenaded, 
 workingmen and women, showing unmistakable evidence 
 of newness to the ways of the country, crowded the pave- 
 ments and the center of the highway. An eagerness for 
 a breath of fresh air and a sight of the shop windows 
 brought about a condition ruinous to the department 
 stores which had long prospered upon that avenue. Al- 
 ready realty owners along the street had hung out signals 
 of distress. The change in Fifth Avenue below Twenty- 
 third Street, now so pathetically disclosed in vacant 
 buildings and "To Let" signs, was then in process. 
 
 In the hope of alleviating what seemed to be an in- 
 excusable and remediable condition of affairs, an asso- 
 ciation of Fifth Avenue business men prevailed upon 
 some of the factory employers to endeavor to change 
 the lunch hour of the working people. One of the leading 
 
2 LAW AND ORDER IN INDUSTRY 
 
 cloak manufacturers on Fifth Avenue succumbed and 
 issued an order to the workers that the hour for luncheon 
 would thereafter begin earlier than usual. The Czar 
 in Russia never did worse! Without consulting them, 
 in a free country, the employer had actually interfered 
 with the inalienable right of the toilers to eat between 
 twelve and one o'clock and to go upon Fifth Avenue 
 whenever the ten minutes they used for food had ex- 
 pired! 
 
 The strike that followed this effort to redeem Fifth 
 Avenue necessitated the services of a lawyer for the em- 
 ployer. It was my introduction to the Industrial 
 Workers of the World and anarchy in industry. One of 
 the circulars then distributed by the workers was headed 
 in big red letters: "War! War! War!" After weeks of 
 effort in the police courts and with the District Attorney, 
 we were obliged to present the matter to the Supreme 
 Court of the county. An able and fair judge wrote, 
 upon the basis of the evidence we presented to him, the 
 following: 
 
 It is evident that instead of a manJy, self-respecting 
 demand to right a grievance, whether real or believed to 
 be such, fortified by reason and argument, methods have 
 been employed by the defendants that are un-American, 
 intolerable, abhorrent to all ideas of personal liberty 
 and in defiance of the right of the individual to determine 
 for himself under what conditions he prefers to labor. 
 Every individual is free to exercise any lawful calling 
 
ANARCHY 3 
 
 without being subjected to acts of terrorism by those 
 who are not in accord with his conception of the manner 
 in which he is pursuing his vocation.* 
 
 So far as public sympathy was concerned, it went to 
 the side of the strikers. The magistrates before whom 
 the assault cases were brought rarely punished, and if 
 they punished, fined lightly. The District Attorney's 
 o£&ce did its best, — which was very little. The Police 
 Department responded, but infrequently. And when the 
 strike was all over, the employer had scored "a great 
 victory. " He had beaten the working people into sub- 
 mission. It had cost him a pretty penny, but he had 
 won. He paid his lawyer's bill with a little feeling that 
 it was a charge against loss rather than a credit to profit, 
 but, nevertheless, he had won. We both learned that 
 a single employer fighting a mass of work-people, with 
 public opinion against him from the very outset, is at a 
 great disadvantage; and, more important still, we learned 
 that the machinery of the law is whoUy inadequate to 
 meet such situations. 
 
 I advised the formation of an association of employers. 
 I was told that it was impossible. Why? The cloak 
 manufacturers could never agree upon anything, and if 
 they did, they would not live up to their agreements, 
 I had rarely seen so much distrust, outside of politics. 
 
 ' A. Seller & Co. v. Garment Workers' Union, Local No. 6i, Industrial 
 Workers of the World et al.. New York Law Journal, March 27, igo;. 
 
4 LAW AND ORDER IN INDUSTRY 
 
 Apparently not even an enlightened self-interest could 
 induce competitors to sit down with each other and 
 agree upon a plan for cooperation in business, The 
 advice went for naught. Anarchy on the workers' side 
 was matched by anarchy on the employers' side. The 
 difference was one of kind and degree. In the case of 
 the employers it was anarchy in the sense of lawlessness 
 in their competition with each other and in their im- 
 wiUingness to abide by the rules of their own making. 
 But at least the workers knew one thing that the em- 
 ployers did not. The Yiddish and Italian press had 
 put it before them daily in big red headlines, and it had 
 been dinned into their ears night and day by enthu- 
 siastic leaders. It was the simple lesson of organized 
 collective dealing with industrial problems. In 1907, 
 1908, and 1909 a union of cloak manufacturers was 
 something to poke fun at. Around the Hoffman House 
 tables the lunch-hour statesmen smoked their cigars 
 and gave their final and conclusive verdict. "A beauti- 
 ful dream. Who but a lawyer would think it practica- 
 ble?" 
 
 But there were many ferments in the pot. In her 
 story of the Henry Street Settlement Miss LiUian Wald* 
 has given us the iimer history of the beginnings of the 
 East Side socialistic and trades union movement in the 
 garment industry. The trade union does not owe its 
 * "The House on Henry Street." 
 
ANARCHY 5 
 
 origin to the decent employer, considerate of the well- 
 being of the workers in his shop. The real propagandist 
 for trade unionism is the employer who is not yet past 
 the kindergarten stage of shop morality. He furnishes 
 the material for such stories as "Comrade Yetta." He 
 literally makes the existence of a trade union possible, 
 for without him there would be no union. His grasping, 
 his tyranny, his indifference to the ordinary human 
 rights of working men and women make the basis of 
 factory laws, industrial commissions, and clear the field 
 for I. W. W. radicals. These men at least earn our 
 gratitude in one respect; they breed their own cure. 
 W. J. Davis, President of the Trade Union Congress 
 in Great Britain held in 19 14, said: 
 
 Trade unionism took its rise more from the employer 
 than the labor leader. It came from the unjust employ- 
 ers, who, not satisfied with imfair conditions, placed 
 indignity after indignity on the worker until one of their 
 number had the pluck to rebel, and who, by the timid 
 murmurings of the opprest, was secretly proclaimed a 
 leader. By common consent of the employers, and as 
 they or their friends made and administered the laws, 
 he was persecuted. The persecution, however, instead of 
 aimihilating the leader, produced leaders. 
 
 In the manufacture of women's garments in New 
 York City were men of fine culture, fine sensibility, 
 broad and Hberal training, who had come to the top 
 through their sheer irmate intellectual and a:rtistic ability. 
 
6 LAW AND ORDER IN ESTDUSTRY 
 
 These men scorned to treat their working people un- 
 humanely. Many are the stories that could be told of 
 their interest in the personal lives of men and women 
 in their employ. But, unfortunately, in their trade as 
 in our profession, there are men of dififerent standards 
 working side by side, and there was no way of separating 
 the sheep from the goats. That there were grievances 
 on the part of the workers in the industry was beyond 
 question. That they had tried to redress these grievances 
 and had failed was equally beyond question. It was 
 an industry of intermittent strikes. The cure for any- 
 thing wrong was the strike. It was the workingman's 
 panacea for all his ills. During the busy season the 
 workers had the boss by the throat. During the slack 
 season he reciprocated and turned the tables on them. 
 The merry game went on, each side lying in wait for 
 the other. Employers freely signed contracts with the 
 xmion, guaranteeing fine wages and good conditions. 
 The ink was scarcely dry before they became mere 
 scraps of paper. The new standards were secured at 
 great sacrifice. During a strike the working people 
 were enthusiastic imion members, literally ready to die 
 for their imion. As soon as the paper was signed and 
 peace was declared, they lost interest, failed to pay 
 dues to their union, failed to attend meetings, and the 
 union lapsed into decay, to be revived only through 
 another strike. 
 
ANARCHY 7 
 
 A few of the leaders had grasped the philosophy of 
 collective dealing and had some backgroiind of knowledge 
 of trades unionism generally, but so far as the masses 
 of the workers were concerned progress was made by 
 explosion — ^not carefully controlled, as in a motor engine, 
 but as highstrung, emotional men are impelled, — for- 
 ward, then back, then sidewise, with much waste of 
 fuel and oil and very little mileage. Gradually the 
 leaders learned through bitter experience the lesson men 
 learn only through bitter experience — that power, how- 
 ever great, applied without moral intelhgence, is worse 
 than useless because it is dangerous. An automobile 
 with no steering gear or brake will speedily bring destruc- 
 tion to passengers and driver. With steering gear and 
 brake, but under control of a headless chauffeur, it is 
 stiU a dangerous animal. Little by little the influence 
 of reason made itself felt in the union. There was less 
 action and more thought. There was planning, looking 
 ahead. 
 
 One hot day, at the beginning of July, 1910, I was 
 walking up Fifth Avenue when a friend handed me a 
 circular printed in Yiddish. "You will be called into 
 action very soon," he said. It was the circular distrib- 
 uted that very day, calling upon all of the workers in 
 the trade to turn out in a general strike. Within a day 
 or two I was summoned to attend a conference of leading 
 manufacturers, who had decided to form a protective 
 
8 LAW AND ORDER IN INDUSTRY 
 
 employers' association. The time was now ripe for an 
 organization of employers. The experience of my one 
 client in 1907 had been matched by others. It is true 
 the lunch-hour statesmen looked dubious and freely 
 prophesied failure. But a condition confronted the 
 employers en masse. A union, a strong union, had been 
 bom. To meet such a union a strong employers' organi- 
 zation was necessary. The value of an organization 
 of employers was now clearly apprehended. But organi- 
 zation for what purpose? Organization to be pitted 
 against organization, imion against association, associa- 
 tion against union. The dominant thought in the mind 
 of the Union was to wrest power from the employer. 
 The first thought in the minds of the employers was to 
 restrain aggression. So far as could be observed, only a 
 handful beUeved in the practicability of organizing 
 the industry itself, regulating the power of both organiza- 
 tions and making possible cooperation between them. 
 
 The fight was bitter, intensified by the stakes at issue 
 and by the feehng on both sides that each was fighting 
 for its very life. Again the machinery of the law broke 
 down. There were assaults. There was riot. Again 
 there was a resort to the courts. Another judge, pass- 
 ing upon the facts, ruled that the violence must cease: 
 
 In aid pf their purpose, defendants have employed 
 illegal means. From the inception of the strike until the 
 present day, members of the unions who were formerly 
 
ANARCHY 9 
 
 employees of members of plaintiff's association have 
 interfered with the business of the manufacturers by 
 forcible entry of the shops and destruction of property 
 therein, assaults and batteries of a serious nature upon 
 employees who refused to stop work, threats to em- 
 ployees who were not unionists to beat or kill them, 
 similar threats to wives and members of the famihes of 
 such employees, use of opprobrious epithets and picket- 
 ing the streets with unruly throngs. At large expense, 
 the manufacturers have been obliged to hire guards to 
 conduct their employees to and from their homes or to 
 provide sleeping accommodations for them in their 
 shops. These facts are fuUy attested by over fifty 
 afl&davits of employees and manufacturers who have been 
 threatened or whose places of business have been for- 
 cibly entered and by the record of testimony in police 
 courts. . . .* 
 
 The story is not a story limited to the cloak industry, 
 nor to New York City. The Mayor of Cleveland writes: 
 
 As each strike occurs, an opportunist policy is adopted 
 by the police authorities. Things are tided along without 
 any clear aim or method and without any tribunal that 
 can determine the right and wrong of questions involved, 
 until somebody is killed or a serious riot threatens the 
 destruction of property. Then public opinion momen- 
 tarily clarifies; we all agree that we do not want such 
 things, no matter what happens, and the police now have 
 a steadied sentiment to support them; the trouble is 
 over. Until this healing incident has arisen out of the 
 
 *Schwarcz v. International Ladies' Garment Workew' Union, 68 
 Misc. (N. Y.) 528; (S3S. 536, 537). 
 
10 LAW AND ORDER IN INDUSTRY 
 
 troubled waters, about all the police can do is to repress 
 the more serious disturbances. In the surging violence 
 of sentiment which surrounds a strike when the men 
 begin to get desperate, the police are fortunate if they 
 can prevent assaults and the destruction of property; 
 they are powerless to allay the fierce outbursts of emo- 
 tion which stir the participants and lead them to law- 
 lessness.* 
 
 The president of the Employers* Association of Mas- 
 sachusetts, writing on "Conditions Fundamental to 
 Industrial Peace," says: 
 
 . . . government under our present system cannot be 
 relied upon as a compelling force to insure justice and 
 protect the individual and the law-abiding community 
 when corporate capital and organized labor are at war.j 
 
 A close friend of trades unions writes that "A plea 
 of trades unions for immunity, be it from injunction or 
 from liabiHty for damages, is as fallacious as the plea 
 of the lynchers." t And Ex-President Taft is of opinion 
 that trades unions have failed to "condemn in any way, 
 as they ought, the use of criminal methods to which 
 in a lawless spirit their representatives at various times 
 
 * Newton D. Baker: Law, Police, and Social Problems, AUantic 
 Monthly, July 1915, p. 17. 
 
 t George B. Hugo: Conditions Fundamental to Industrial Peace, The 
 Annals of the American Academy of Political and Social Science, Nov., 
 1912, p. 22. 
 
 % Louis D. Brandeis: Arbitration, The Mediator, Axig. 20, 1915, p. 11. 
 
ANARCHY II 
 
 have seen fit to resort." * The employers on the Federal 
 Industrial Relations Commission were satisfied from 
 the testimony before them that one of the main reasons 
 for the opposition of employers to unionism is "the 
 resort on the part of unionists to violence in labor trou- 
 bles, and to the fact that unionists condone such violence 
 when committed in the alleged interest of labor." f 
 The representatives of labor on the Commission reply 
 to this criticism by way of "confession and avoidance" 
 (as we lawyers say) : ' The union, fighting for its right 
 to Uve, is sometimes forced to tolerate acts that would 
 not be coimtenanced if its entity were secure and its 
 energies were not absorbed in fighting for existence." J 
 And the representatives of the public on the Commission 
 say that the strikes accompanied by bloodshed, and 
 attracting the attention of the country for the past 
 quarter of a century "have been revolutions against 
 industrial oppression, and not mere strikes for the im- 
 provements of working conditions." And they list as 
 such "revolutions" the railway strike of the late eighties, 
 the Homestead strike, the bituminous coal strike of 
 1897, the anthracite strikes of 1900 and 1903, the McKees 
 Rocks strike in 1909, the Bethlehem strike in 1910, the 
 
 * William Howard Taft in speech before the National Association of 
 Manufacturers, May 26, 1915. 
 
 t Report of Federal Commission on Industrial Relations (1915), 
 p. 428. 
 
 I Id, p. 280. 
 
12 LAW AND ORDER IN INDUSTRY 
 
 Strikes of the textile workers in Lawrence, Paterson and 
 Little Falls, the strikes in the mining camps of Idaho, 
 Colorado, West Virginia, Westmoreland Co., Pa., and 
 Calumet, Mich., and also "the garment workers' strikes 
 in New York and other cities." * 
 
 Apparently, the representatives of the public upon the 
 Federal Industrial Relations Conmiission believe that 
 by calling a strike a "revolution" violence and law- 
 breaking are excused. 
 
 A recent writer finds in the lessons of the lynching 
 of Leo Frank a striking analogy between that kind of 
 law-breaking and the kind of law-breaking in the case 
 of labor disputes. He finds in both an attitude towards 
 the law symptomatic of "a besetting weakness of the 
 American democracy," and that "back of the physical 
 violence and lawlessness is an insidious and dangerous 
 moral disorder." From eight years' observation and 
 study, I am convinced that his conclusion is accurate: 
 "The inability of American State governments in the 
 case of labor disputes to protect either the strikers or 
 the employers against organized disorder is notorious." f 
 The Mayor of Cleveland has come very close to finding 
 the real cause. He finds first of all that the state of the 
 public mind during the violence is 'confused and hesi- 
 
 * Report of Federal Commission on Industrial Relations (igis). 
 p. 89. 
 t Georgia and the Nation, The New Republic, Sept. 4, 1915, p. 113. 
 
ANARCHY 13 
 
 tant." The public sits by, "blaming one side or the 
 other on such half information or interest as we may 
 have, or wondering what ought to be done about it. . . . 
 We do not like violence, but somehow this seems to us 
 excusable violence, if it be not too violent." We have 
 not yet come to realize that there is "a social loss with 
 just so much human labor and wealth gone and so much 
 less wealth produced," and that "labor loses not only 
 the battles it ought to lose but many it ought to win." 
 And he makes the further observation that "the result, 
 no matter what it is, rests upon no higher sanction than 
 force, and therefore lacks stabihty and will last only 
 until one side or the other feels strong enough to renew 
 the struggle." * 
 
 The Mayor of Cleveland wrote in 1915. What he 
 said was said in 1910, is still said, and said over and over 
 again. But where is the way out? Must there be vio- 
 lence always accompanjdng labor disputes? Is it "revo- 
 lution?" We met these questions face to face in 1910 
 and met them over again in the years following. 
 
 ♦Newton D. Baker: Law, Police and Social Problems, Atlantic 
 Monthly, July, 1915, p. 17. 
 
CHAPTER II 
 
 THE CLOSED SHOP 
 
 The general strike was called without notice to the 
 employers and without presentation of the customary 
 list of grievances. All that the employers knew was that 
 an order to strike had been issued, military fashion, 
 to all of the factory workers, and that subsequently 
 each employer had received in the mails a form of con- 
 tract which, in legal and moral effect, meant to him the 
 surrender of the control of his factory to the union. 
 This contract contained the following remarkable clause: 
 
 I. The said Firm hereby engages the Union to perform 
 all the tailoring, operating, pressing, finishing, cutting 
 and buttonhole making work required to be done by the 
 Firm in its cloak and suit business, during the period 
 commencing with the date of this agreement and ter- 
 minating one year from date, and the Union agrees to 
 perform said work in a good and workmanlike manner. 
 
 The New York Times, commenting upon this contract, 
 said: "The proposed agreement of the Cloakmakers' 
 Union is a reminder of the padrone system." * The 
 great number of people involved in the strike — ^it was 
 
 * Nmi York Times, July i6, 1910. 
 14 
 
THE CLOSED SHOP 15 
 
 said sixty thousand went out for ten weeks — ^its sudden- 
 ness, gave it a dramatic flavor entitling it to a place on 
 the first page of the newspapers. In our newsgathering 
 nothing becomes really important in the nature of a 
 labor dispute until there is a lockout or a strike, and 
 the situation becomes a real newspaper "story" only 
 when some heads are smashed or a murder is committed. 
 But there was more involved in this particular strike 
 than in many similar great strikes. Employer and 
 worker in this industry were bound together by ties 
 of race association and tradition not easily broken. 
 There was real intelligence and sincerity on both sides 
 and a fundamental basis of agreement, hidden, of course, 
 by the noise and the turmoil upon the surface. What 
 were the real differences? Very soon after the organiza- 
 tion of the Employers' Protective Association each mem- 
 ber pledged himself: 
 
 That to the utmost of his ability, with the assistance of 
 the Executive Committee, he will endeavor to adjust all 
 shop grievances his employees may have. 
 
 I can testify from personal knowledge that the leaders 
 of the Association were as earnest and genume in their 
 desire to eliminate the real grievances of the workers 
 in the industry as were the leaders of the Union. They 
 resented the indiscriminate abuse that had been heaped 
 upon the entire industry. They felt keenly the injustice 
 
l6 LAW AND ORDER IN INDUSTRY 
 
 of classing sheep with goats. And there was a very deep- 
 seated determination that out of the strike should come 
 something that would justify its cost. There was a 
 definite and courageous determination to put the indus- 
 try upon a higher plane and to make of the business at 
 least something which would not make the employer 
 shamefaced when admitting to his neighbors or to his 
 children that he was a cloak manufacturer. In the 
 private executive sessions of the employers' association 
 I have heard the president say repeatedly that the asso- 
 ciation stood for justice to the workers as well as to 
 its own members, and that the efforts of its officers 
 would be fruitless unless the industry were raised to a 
 higher plane as the result of this crisis. 
 
 If justice and a higher order of industry were the 
 objective points for both workers' union and employers' 
 association, why, then, a bitter conflict involving great 
 loss and sacrifice? This was the rock-bottom question. 
 A few men, disinterested and impartial, putting this 
 question to both sides, learned that there was a basis 
 for peace and order if both sides could be gotten to- 
 gether. In August, 1910, however, the situation was 
 this: a single issue precluded conference between the 
 parties. At that time the union leaders genuinely be- 
 lieved that no matter what agreement was arrived at 
 between the employers and the union, unless the union 
 controlled the supply of labor it would go to pieces and 
 
THE CLOSED SHOP 17 
 
 the standards would break. Accordingly, the "closed 
 shop," i. e., a shop in which none but union men should 
 be employed, was to them a matter of vital principle; 
 and so thoroughly convinced were they on this score 
 that they made every other issue subordinate. In their 
 publicity campaign they had made much of the un- 
 sanitary conditions of the shops, the long hours, the 
 low wages, the exacting of deposits, the tenement house 
 labor, and the rest, but what they fought for more than 
 anything else was "recognition of the union," which 
 to them meant the "closed shop." To the employer, 
 also, it was a matter of principle. He carried the re- 
 sponsibility for running his enterprise. He knew he 
 could not run it without freedom to select his employees. 
 To him the "closed shop" meant abdication. It spelt 
 ruin. 
 
 The two parties were kept from each other by this 
 apparently impassable barrier. In August, 1910, it 
 seemed impossible to bring them nearer together. To 
 Mr. Louis D. Brandeis is due entirely the credit of cut- 
 ting this Gordian knot. Through the influence of friends 
 of the union, he was called in to advise them. He ad- 
 vised them to waive the demand for the closed shop and 
 to present in writing to the manufacturers their griev- 
 ances and to ask for a conference (having first learned 
 through diplomatic sources that once the barrier was 
 removed such a conference was practicable). Mr. 
 
l8 LAW AND ORDER IN INDUSTRY 
 
 Brandeis secured in the early hours of a midnight session 
 with the executive ofl&cers of the Union authority to 
 assure me, on behalf of the manufacturers, that the 
 issue of the closed shop was eliminated. In his letter to 
 me he wrote: "All of these officers understand fully 
 that under this proposal the closed shop is not a subject 
 which can be discussed at the conference." It was a 
 great pleasure to join with Mr. London, the counsel 
 for the Union, a few days later in inviting Mr. Brandeis 
 to preside over the conference which followed. It lasted 
 for five days. The grievances presented by the Union's 
 representatives were briefly the following: 
 
 Low wages. 
 
 Unreasonable night work. 
 
 Work in tenement houses. 
 
 Disregarding of holidays and Sundays. 
 
 Sub-contracting. 
 
 Discrimination against union men. 
 
 Irregular payment of wages. 
 
 Extracting of security. 
 
 Charging for material and electricity. 
 
 Blacklisting of active union men. 
 At first both sides approached each other with a very 
 marked feeling of distrust. Gradually a better attitude 
 of reasonableness prevailed. Step by step the minds 
 of the parties were brought together. The liberal atti- 
 tude of the leaders on the manufacturers' side, which 
 
THE CLOSED SHOP 19 
 
 was only known to those who were in their confidence, 
 now came out into the open. Indeed, such criticism of 
 their work as came in later days was based upon the 
 score that in August, 1910, they had been too ready to 
 agree. 
 
 On the fifth day of the conference, when practically 
 all other matters had been disposed of, we were startled 
 to hear the union representatives bring the closed shop 
 up again for discussion. Mr. Brandeis very properly 
 said: 
 
 I should rule that the subject of the closed shop could 
 not be discussed at all, except with the absolute consent 
 of everyone who has entered here into the conference, 
 because it was expressly understood, and I gave my 
 assurance upon my own understanding of the written 
 document which I received, that that was a subject which 
 could not be brought up, and we proceeded wholly on 
 that.* 
 
 Notwithstanding all that had been accomplished up 
 to this point, and despite the authorized assurance given 
 to the manufacturers by Mr. Brandeis, the barrier again 
 arose, huge and ominous, between the parties. It was 
 here that in the effort to bring them together, Mr. Brand- 
 eis suggested what afterwards came to be known as 
 the "Preferential Union Shop." I must confess that 
 I did not agree with Mr. Brandeis as to its utiHty. Never- 
 * Minutes of Conference, July 20, 1910. 
 
20 LAW AND ORDER IN INDUSTRY 
 
 theless, I recommended to the ofl&cers of the association 
 that Mr. Brandeis and I discuss fully and frankly be- 
 fore the Executive Board the feasibility of his recom- 
 mendation. Mr. Brandeis argued one way. I argued 
 another, as two lawyers will, each for his own convic- 
 tion. Mr. Brandeis won my clients over. On the ist of 
 August, 1910, 1 was authorized to submit to Mr. London 
 and to Mr. Brandeis the following letter: 
 
 Dear Mr. London — Our conference this morning is 
 fraught with such grave consequences that I believe such 
 matters as I have to submit should be reduced to writing. 
 
 I am prepared to join with you in recoimnending to 
 our respective organizations the following as their joint 
 understanding of the relations between the two, to be 
 agreed upon: 
 
 The conference has developed that the grievances 
 complained of by the Union can be adjusted. Practically 
 every subject has been agreed upon, save that of wages 
 and the year-round Saturday half-holiday (instead of 
 during the four siunmer months), both of which matters 
 the manufacturers are willing to leave to arbitration. 
 A Joint Board of Sanitary Control, composed of repre- 
 sentatives of the Association and the Union and the 
 pubhc, will be formed, whose business it will be to estab- 
 Msh standards of sanitary conditions, to investigate as 
 to the observance of these conditions, and both parties 
 to the conference agree to exercise their powers to the 
 fullest to enforce these standards. 
 
 The manufacturers realize that to estabhsh a standard 
 of sanitary conditions, and standards of wages and 
 hours throughout the industry it is important that there 
 
THE CLOSED SHOP 21 
 
 should be complete cooperation between their Associa- 
 tion and the Union. They are, therefore, ready to 
 strengthen the Union, if it be but well organized and 
 wisely led. If a complete agreement be now reached 
 upon these difficult and delicate matters it will at once 
 establish confidence between the leaders of both sides. 
 
 The manufacturers cannot, of course, surrender the 
 control and management of their factories to the Union. 
 In agreeing to this declaration, the Union indicates that 
 it assents. The manufacturers cannot coerce any one 
 into joining the Union; to this the Union assents. The 
 manufacturers cannot supervise the Union's business. 
 The Union does not ask that they should. But the 
 manufacturers can let it be known that they are in 
 sympathy with the Union, and that as between a Union 
 man and a non-union man of equal abiUty to do the job, 
 they will employ the Union man. They cannot ask each 
 man seeking a job to show his Union card, nor agree to 
 collect the Union dues. On the other hand, they can and 
 will (if this declaration be accepted) annoimce to all of 
 their employees that they believe in the Union and that 
 all who desire its benefits should share in its burdens. 
 
 In signing this declaration, the Union does not seek the 
 "closed shop" as it is understood by the manufacturers. 
 They seek the "union shop" by which they mean, a shop 
 where the majority of the men employed are Union men, 
 arid where the employer is known to be in sympathy 
 with the Union. It is not intended that the employer 
 shall not be free to pick and choose his workers. But it 
 is intended that if in bad faith, he discriminates against 
 Union men or fails honestly to give preference to Union 
 men, then he is not conducting a "Union shop." It is 
 done experimentally, for it has never before been tried in 
 this or any other industry. But the manufacturers be- 
 
22 LAW AND ORDER IN INDUSTRY 
 
 lieve modern conditions justify recognition of a well 
 organized and disciplined union to this extent and that 
 with good faith and wise leadership on both sides, 
 cooperation between the two organizations can bring 
 the industry to a higher position than it occupies even 
 at present. 
 
 On the other hand, the Union recognizes that it cannot 
 hope to accomplish this great social result unless it helps 
 to drive out of the industry the sweatshop "boss," the 
 tenement house worker, and the unscrupulous manufac- 
 turer. 
 
 A joint board of arbitration will be established, upon 
 which representatives of the public will be present. No 
 future strikes or lockouts will take place imtil grievances 
 are first submitted to arbitration. In the saving of the 
 great waste thus eliminated both parties expect to gain 
 much. 
 
 I am aware in submitting this proposed agreement, it is 
 fraught with great danger and that if accepted by my 
 people, it goes "the limit." 
 
 On the other hand I see nothing more that can be 
 asked except the "closed shop" which, as you know, was 
 eliminated before we went into conference. 
 
 Please be good enough to give me your answer in 
 writing by two o'clock today. 
 
 On the same day Mr. Brandeis sent me the following 
 letter: 
 
 Dear Sir — Before submitting your letter of this 
 day to Mr. London, after conferring with both you and 
 Mr. London, I suggest that you modify the proposed 
 declaration in the following respect: 
 
THE CLOSED SHOP 23 
 
 First. Let the clause in the last paragraph on the first 
 page, beginning with "but the manufacturers," read: 
 "But the manufacturers can and wiU declare in appro- 
 priate terms their sympathy with the Union, their desire 
 to aid and strengthen the Union, and their agreement 
 that as between union men and non-union men of equal 
 abiUty to do the job, they will employ the Union men." 
 
 Second. Add to the second Une of the second page: 
 "And that the preference will be given to Union men." 
 
 Third. Insert after the above: "The Union pledges 
 itself to accept into its membership every appUcant of 
 good character on equal terms and keep its initiation 
 fees and dues at a reasonable rate." 
 
 Fourth. Substitute for the second sentence of the first 
 paragraph beginning on page 2 "the majority, etc.," 
 the following: "They seek the Union shop, by which 
 means they mean a shop in which Union standards pre- 
 vail and tie union man is entitled to the preference." 
 
 With these changes I am prepared to join with you in 
 recommending the acceptance of the proposal. 
 
 At the end I wrote "I accept your modifications." 
 
 But this modus vivendi proved to be unacceptable to 
 the union. There can be no question as to the sincerity 
 of the leaders of the union. They were all, personally, 
 brave, self-sacrificing men. But imfortunately they 
 had created a Frankenstein. To have gone back and 
 told the mass of the working people that they had won 
 everything but the closed shop seemed to them im- 
 possible. In consequence, the conferences broke up. 
 The strike was renewed. More heads were smashed. 
 
24 LAW AND ORDER IN INDUSTRY 
 
 more shops stopped work, more shops opened in other 
 cities. Employers signed individual agreements ac- 
 cepting the closed shop, secretly vowing that they would 
 repudiate them immediately after hostiHties were over. 
 Those employers who fought the closed shop as matter 
 of principle continued their fight and lost large sums of 
 money, their less scrupulous competitors manufacturing 
 garments under strictly closed shop agreements. This 
 was the situation which again,' as counsel for the em- 
 ployers, I presented, to the Supreme Court. Upon the 
 evidence presentedT^ncluding the record of the con- 
 ference, the Court said: 
 
 The primary purpose of this strike is not to better the 
 condition of the workman but it is to deprive other men 
 of the opportunity to exercise their right to work and to 
 drive them from an industry in which, by labor, they 
 may have acquired skiU and which they have a right to 
 pursue to gain a Hvehhood without being subjected to 
 the doing of things which may be disagreeable or re- 
 pugnant. That this is the motive which animates the 
 combination of defendants is clear from the correspond- 
 ence, the negotiations, the conferences, and the acts and 
 conduct disclosed in papers before the court.* 
 
 The judge who wrote this opinion was made the sub- 
 ject of ridicule and abuse, and, of course, the lawyer 
 for the association came in for his share. But this ded- 
 
 *Schwarcz v. International Ladies' Garment Workers' Union, 68 
 Misc. (N. Y.) S28; (534). 
 
THE CLOSED SHOP 2$ 
 
 sion sounded the death knell of the dosed shop as part 
 of the propaganda of the garment workers of New York. 
 When later the preferential union shop was accepted 
 in lieu of the closed shop, it was followed by similar 
 protocols in other industries in New York, Philadelphia 
 and Chicago,* and was made the basis of strikes in the 
 men's clothing industry in New York City, Chicago, 
 Rochester, and Baltimore. I think it may be said with 
 accuracy that, so far as the Hebrew trades of New York 
 are concerned, the propaganda of the closed shop as a 
 means for improving the conditioii of the workers has 
 been abandoned. As this chapter is being written, it 
 is reported that the Ladies' Garment Workers have 
 accepted an agreement in Chicago with the cloak man- 
 ufacturers' association on the basis of the preferential 
 union shop instead of the closed shop. In January, 1912, 
 after a year and a quarter's experience, the editor of 
 The Ladies' Garment Worker wrote concerning the closed 
 shop: 
 
 ... we believe that members prefer working at a 
 preferential shop and earning good wages than working 
 at a strictly closed shop, under the full control of the 
 
 * See Bulletins 144 and 14s, Bureau of Labor Statistics, Department 
 of Labor. 
 See agreement. Hart, Schaffner & Marx, Chicago. 
 See George Creel: A Way to Industrial Peace, The Century, July, 
 
 1915- 
 See also proposed agreements. Amalgamated Clothing Workers of 
 
 America. 
 
26 LAW AND ORDER IN INDUSTRY 
 
 union, and go away with poor pay envelopes. After all, 
 the union shop is only a means to increase the em- 
 ployees' earnings and not an end in itself. 
 
 In the hearings before the Industrial Relations Com- 
 mission at Washington in the winter of 1914, the former 
 head of Typographical Union No. 6 stated that if the 
 national master printers' organization, with which the 
 typographers had been at war for many years, was will- 
 ing now to sign an agreement on the preferential union 
 shop basis, similar to the one then existing in the cloak 
 industry, he believed the union would cheerfully accept 
 it. The following resolution adopted by all the members 
 of the Federal Industrial Relations Commission is signif- 
 icant: 
 
 Whereas, The Commission finds that the terms 
 open shop and closed shop have each a double meaning, 
 and should never be used without telb'ng which meaning 
 is intended, the double meaning consisting in that they 
 may mean either union or non-union; Therefore, for the 
 purposes of this report, 
 
 Be it Resolved, That the Commission on Industrial 
 Relations will not use the terms "open shop" and 
 "closed shop," but in lieu thereof wiU use "union shop" 
 and "non-union shop." 
 
 The union shop is a shop where the wages, the hours of 
 labor, and the general conditions of employment are 
 fixed by a joint agreement between the employer and the 
 trade union. 
 
 The non-union shop is one where no joint agreement 
 
THE CLOSED SHOP 27 
 
 exists, and where the wages, the hours of labor, and the 
 general conditions of employment are fixed by the 
 employer without cooperation with any trade union. 
 Wherever the terms are used in this report, they bear 
 the interpretation as set forth above* 
 
 The rejection of the proposal made on August first 
 was a mistake. In industrial matters, as in political 
 matters, mistakes have a way of correcting themselves, 
 but the price paid for the correction is often a very 
 high one. Experience is the most expensive way of 
 correcting such errors. For four weeks after the first of 
 August the strike continued. The newspapers were 
 full of accoimts of disorder and of accounts of the hard- 
 ships of the workers. Finally the pressure upon the 
 charities of the City of New York became so great that 
 leading citizens intervened, and through the good ofl&ces 
 of Mr. Louis Marshall, the distinguished New York 
 lawyer, Mr. London and I were brought together, with 
 the approval of our clients, for conference. The mistake 
 was corrected. The proposal of August i, 1910, became 
 the Protocol of Peace of September 2, 1910. This docu- 
 ment was the governing instrument for the industry 
 until May 17, 1915. It is printed in full as Appendix A. 
 
 * Report of Federal Commission on Industrial Relations (1915), 
 p. 253. 
 
CHAPTER III 
 
 THE POLICY OF THE PROTOCOL 
 
 When a strike is settled, it means that the parties 
 have come to an understanding. As in the case of all 
 other agreements, it is usually reduced to writing, if 
 for no other reason than to preserve ready evidence of 
 the terms. When such agreements are made between 
 a group of employers and a group of workers, the process 
 is called "collective bargaining." Such collective agree- 
 ments are quite prevalent in Great Britain. In the 
 "Report on Collective Agreements between Employers 
 and Workpeople in the United Kingdom" published 
 in 1910, issued by the Board of Trade (Labor Depart- 
 ment), Sir George Askwith reports that there were 
 then in existence one thousand six hundred and ninety- 
 six such agreements involving two miUion four hundred 
 thousand people. In the introduction, Sir George Ask- 
 with says: 
 
 The wide prevalence of these arrangements in our most 
 important industries must have an important influence 
 on industrial enterprise, for when the level of wages, the 
 length of the working day, and other probable conditions 
 of employment are regulated, for specified periods of 
 
 28 
 
THE POLICY OF THE PROTOCOL 29 
 
 greater or less duration, by clearly defined agreements, 
 the employers concerned must be enabled to calculate 
 with precision that part of the cost to production which 
 will be represented by labour; however, when these 
 agreements bind the whole or a very large proportion of 
 the firms engaged in a given trade, the danger of under- 
 cutting by rivals who find it possible to obtain labour at a 
 lower price is materially reduced. 
 
 In the more recent report of the British Industrial 
 Council on its "Enquiry into Industrial Agreements," 
 dated 1913, the Council says: 
 
 18. The value of efficient organization on the part of 
 employers and work-people as a means of securing the 
 due fulfilment of industrial agreements is very clearly 
 demonstrated by the experience of the different trades 
 of the country. 
 
 29. The desirability of maintaining the principle of 
 collective bargaining — which has become so important a 
 constituent in the industrial life of this country — cannot 
 be called into question, and we regard it as axiomatic 
 that nothing should be done that would lead to the 
 abandonment of a method of adjusting the relationships 
 between employers and work-people which has proved so 
 mutually advantageous throughout most of the trades 
 of the country. 
 
 This result has been brought about in Great Britain 
 through encouragement by the Board of Trade of the 
 making of trade agreements, and through the frequent 
 application of the Conciliation Act of 1896, now known 
 
30 LAW AND ORDER IN INDUSTRY 
 
 as the "Trade Disputes Act" (59-60 Vict., Chap. 30, 
 7th of August, 1896). 
 
 The agreement between the International Ladies' 
 Garment Workers Union and The Cloak, Suit and Skirt 
 Manufacturers Protective Association was a "collective 
 agreement." It established a minimum scale of wages 
 for week workers, maximum hours, number of holidays 
 to be observed, limitation of hours of overtime, pro- 
 hibition of home work, requirement for electric instead 
 of foot power, etc. In these various directions thus re- 
 corded the workers made marked advances, as is indi- 
 cated in the following recent statement by the chief 
 executive oflScer of the union: 
 
 The protocol afforded positive gains. Even the seem- 
 ingly petty provisions requiring the abohshment of foot 
 power, and the introduction of electric power for operat- 
 ing machines, was a gain that could be felt in the very 
 bone and marrow. The regulating of deposits for tools 
 abolished another hardship. A cloakmaker suffering 
 starvation for months, upon finding emplo3mient, had 
 to hunt for sums of $3.00 and $5.00 to deposit with the 
 employer for the tools he was to use. From pressers 
 a much larger security was exacted. In practice this 
 amounted to a payment for the privilege of securing the 
 job; and the difficulty of having these sums refunded 
 upon their leaving the firm's employ, was a hardship 
 just as oppressive. The protocol fixed $1.00 as the sum of 
 this deposit, for which the employer was required to give 
 a formal receipt, and introduced similar improvements. 
 These reforms cannot be overestimated. They have 
 
THE POLICY OF THE PROTOCOL 31 
 
 modernized the trade. Add the fifty-hour week, the 
 preferential shop and the Board of Sanitary Control and 
 it must be granted that the reforms were of profound 
 significance.* 
 
 A few illustrations of the betterment of individual 
 workers' conditions are taken as examples, from Bulletin 
 147, Bureau of Labor Statistics, Department of Labor.f 
 
 * B. Schlesinger: Our Recent Struggle and Its Results, The Ladies' 
 Garment Worker, September, 1915, p. 15. 
 
 t "After the settlement of the strike, in September, practically every in- 
 dividual in the 200 studied was earning more than before the strike. . . . 
 
 "Presser No. 5.— Bom in Russia, in 1887; . . . about one year after 
 arrival in the United States, at 21 years of age, entered the industry, 
 learned the trade in the shop, beginning as a piece presser; worked two 
 weeks for nothing as a learner, then 3 weeks at $3, then a few weeks at 
 $3.50, then a few months at $$, and by the end of his first year had 
 worked up to $8 as an upper presser on skirts; in igio he was making 
 $10, which was increased to $16 after the strike; during 1911 he was 
 out of work, except about 3 months while he was with a circus; during 
 1912 he worked as a reefer upper presser at $14, and in 1913 as a jacket 
 imder presser at $18. . . . 
 
 "Presser No. 4. — ^Bom in Russia, in 1878; . . . came to the United 
 States in 1905; . . . after about 2 years in New York, entered the in- 
 dustry at 29 years of age, learning the trade in the shop; began as an 
 under presser, working for s weeks at $4, and then for 2 years at $7; in 
 1910 he made $9 as an under presser, but after the strike made $15 as 
 piece presser; since 1911, under presser at $18. . . . 
 
 "Presser No. 5. — Born in Roumania, in 1861; . . . came to United 
 States in 1902 and entered the industry at once, at 41 years of age; be- 
 gan as piece presser, working 2 weeks for nothing, then for 3 months at 
 $3 per week, then at $7; for 2 years worked at I9; by 1910 was making 
 $12 and $13 per week, and since the strike $19 as skirt upper presser; 
 learned the trade in the shop from other workers. . . . 
 
 "Presser No. 6. — Bom in Russia, in 1874; . . . Came to United States 
 in 1904, where he was a peddler with a pushcart for about a year and a 
 half; after about 2 years in the United States, at 32 years of age, began 
 
32 LAW AND ORDER IN INDUSTRY 
 
 Quite apart, however, from immediate material gains 
 guaranteed by these specific provisions of the Protocol, 
 the document contained general provisions of much 
 
 as skirt under presser, learning the trade in the shop; worked 2 weeks 
 for $5 per week, then several months at $8, then a year at $12, and by 
 1910 was making f 16, and by 1912 became a jacket upper presser at 
 $21. . . . 
 
 "Cutter No. i. — ^Born in Italy in 1890; . . . came to United States 
 in 1900 and 6 years later, at 16 years of age, entered the industry, learn- 
 ing the trade in the shop; began as a learner, making $5 to $8 the first 
 year; worked one year as a canvas cutter at $10, then 2 years as a cloth 
 cutter at $14 and $16; at the time of the strike in 1910 he went into 
 business for himself, manufacturing willow plumes; in 191 2 returned to 
 the industry as a doth cutter at $25. . . . 
 
 "Cutter No. 3. — ^Bom in New York, N. Y., in 1893; ... in 1907 
 went to work as an errand boy at $4 per week; in 1908 was collector for 
 a cotton house at $7, and in 1909 shipping clerk in a cloak house at $7; 
 in 1910, at 17 years of age, he entered this occupation as a learner at the 
 cutting table, starting at $4 and working up to $11 in 6 months; at the 
 time of the strike in 1910 he went to Detroit, where he secured a job as 
 a mechanic in an automobile factory at $15; in 1911 he returned to New 
 York, making $25 as a cloth cutter since that date. . . . 
 
 "Cutter No. 4. — Bom in United States in 1891; ... in 1904 went to 
 work as a stock clerk at $6, the next year making $8; the following year 
 was ofiSce boy and apprentice draftsman in an architect's office at $ro, 
 and then for 2 or 3 years was shipping clerk, stock clerk, and factory 
 bookkeeper at $12; after the strike in 1910 he entered this industry, at 
 19 years of age, as a canvas cutter at $12; during the past 2 years he has 
 been a cloth cutter at $23; learned the trade in the shop, beginning as 
 canvas cutter. . . . 
 
 "Cutter No. 6. — Bom in Russia in 1891; . . . came to United States 
 in 1902 and worked in leather trade 4 years; in 1906, at 15 years of age, 
 entered this industry as canvas cutter; learned the trade in the shop, 
 paying $25 for the privilege and in addition working 4 weeks without pay; 
 after that received $6 per week, and in 2 years was making $14 as trim- 
 ming cutter; since the strike in 1910 has been making $20 as trinmiing 
 cutter. . . . 
 
 "Cutter No. 8. — Bom in Italy in 1874; . . . came to United States 
 
THE POLICY OF THE PROTOCOL 33 
 
 greater import in their ultimate consequences. These 
 were the provisions for the "Preferential Union Shop," 
 the Joint Board of Sanitary Control, the permanent 
 Board of Arbitration, the Board of Grievances, and the 
 prohibition of strikes or lockouts during the life of the 
 agreement. Each one of these phases of the agreement 
 deserves separate treatment; but underlying all of them 
 was a poUcy quite definite and concrete in the minds of 
 those who drew up the document. It is this general 
 policy and the institutions created to carry it forward, 
 now tested by five years of actual experience, which 
 warrant study and reflection. 
 
 The experiences prior to and during 1910 have been 
 reviewed not with any idea of reminding either side of 
 its mistakes, but to put light side by side with shadow. 
 Comparison between the ideal for which we are striving 
 and the gains actually made has its legitimate encourage- 
 in 1877; went to work in 1886 pulling bastings at $1.25 to $2 per week; 
 beginning in 1889 was for several years an operator on men's clothing 
 at $3 to $9, and then jacket tailor at $10; then for 3 years a contractor 
 in men's clothing line; in 1900, at 26 years of age, he entered this occupa- 
 tion, learning the trade by taking private lessons from a cutter in the 
 latter's home; made $20 as cutter on men's clothing and $22 on cloaks 
 and suits up to 1910; since the strike in 1910 has been making $2$ as 
 cloth cutter on cloaks and suits. . . . 
 
 "Cutter No. 10. — Bomin Austrian Poland in 1892; . . . in 1909 came 
 to United States and entered this industry at once, at 17 years of age, 
 learning the trade in the shop as a helper trimming cutter; began at $3 
 and was making $8 in 1910 as assistant trimming cutter; since the strike 
 has been making $18 as trimming cutter. . . ." (Pp. 139, 140, i42j i43. 
 I44-) 
 
34 LAW AND ORDER IN INDUSTRY 
 
 ment; but such comparisons, to be of real value, must 
 mark the difference between two points of progress. 
 
 The Protocol has been called "a lawyer-made instru- 
 ment." This is true. It was but natural that the im- 
 plicit policy underlying its phrasing should be shaped 
 by such experience and learning of the world's efforts 
 to secure justice by law as the framers could bring to 
 their task. A rather warm admirer of its provisions 
 wrote recently that it was of a kind with our Federal 
 Constitution. Of course, he overestimated its value. 
 But it is true that it was the first attempt to introduce a 
 Constitution — a rule of law and order — ^into the industry. 
 Now, no one knows better than the lawyer that, without 
 power to enforce law, law is nugatory. Criminal statutes 
 without penalty have no value. Some of our best citi- 
 zens are only observant of the law because they fear the 
 consequences. No Hague Tribimal can make peace 
 certain without some police power to enforce its deci- 
 sions. The judgment of the United States Supreme 
 Court would be of no value, if there were no United 
 States marshal with the power of the Federal Govern- 
 ment back of him to execute the court's warrant. In- 
 deed, the docmnent authorizing the marshal to act is 
 called a "writ of execution." By the same experience, 
 no one knows better than the lawyer the futility of force 
 as a means of making law or determining the justice 
 of any cause. It seems incredible that there were times 
 
THE POLICY OF THE PROTOCOL 35 
 
 when grave moral issues, grave legal questions were 
 determined only by trial by battle, the ordeal or the duel. 
 It was not imtil 1819 that trial by wager or battle was 
 abolished in England. As late as 1817, one Abraham 
 Thornton, acquitted of the charge of murder, threw 
 down the gauntlet and offered, on an "appeal of murder," 
 to test the validity of the charge by battle. The com- 
 plaining relative of the deceased, refusing to take the 
 challenge, let the appeal drop, and this was the last 
 case of trial by wager of battle. Although the Romans 
 had a system of trials, trial by jury as it is now known 
 did not come into general practice until the latter half 
 of the 12th century, under Henry II.* The ordeal was 
 abolished in 1215.! If ever we are impatient with the 
 results of civilization's efforts to adjust international 
 matters by the processes of reason, let us recall that 
 we are scarcely a century away from the time when the 
 determination of private disputes by the rule of the 
 strong arm was finally abohshed, and we are but seven 
 centuries away from the introduction into EngHsh juris- 
 prudence of the system of trying facts before juries. 
 And let us not forget that even at the present moment 
 we are witnessing the effort of a single nation to demon- 
 strate that power, appUed efficiently, is the only method 
 for making moral progress. If we are so backward in 
 
 * Pollock and Maitland: "History of English Law," Vol. I., p. 144. 
 t7i.,Vol. II,p.S99- 
 
36 LAW AND ORDER IN INDUSTRY 
 
 international relations, is it any wonder that, the flame 
 of faith in the juridical method of administering justice 
 should flicker? 
 
 If this, then, was "a lawyer-made document," we 
 should expect to find in it provisions for a permanent 
 tribunal of some sort that should be constituted as 
 nearly as practicable the supreme court of the industry; 
 and provisions likewise inhibiting resort to war, i. e., 
 strikes and lockouts, so long as such a tribunal existed. 
 The foundation for such a tribunal was first suggested 
 by the union. In its communication looking to the 
 conference of August, 1910, the union stated that to 
 remedy its grievances it was, in its opinion, "neces- 
 sary ... to establish a permanent board of arbitration 
 which is to settle grievances, the imion and employers 
 to be equally represented on the board of arbitra- 
 tion. . . ." One of the striking features of the Protocol 
 is the complete absence of time hmit. It has been fre- 
 quently referred to as a perpetual agreement; but this 
 is a misuse of terms; in fact, it could be terminated in- 
 stanter by either party. So long as the parties had 
 sufficient confidence in each other and in the Board of 
 Arbitration to keep the Protocol alive, it would live. 
 And the Board was selected before any controversy 
 had arisen. The value of a Board of Arbitration selected 
 in advance of any controversy has long been under- 
 stood by students of the larger problem of arbitration. 
 
THE POLICY OF THE PROTOCOL 37 
 
 James Brown Scott, in the introduction to the Proceed- 
 ings of the 191 2 Conference of the American Society 
 for the Judicial Settlement of International Disputes, 
 thus indicates the principal advantages of a truly per- 
 manent court composed of Judges (pp. 9-10) : 
 
 Parties in controversy are not in the frame of mind to 
 create a tribunal, whereas, if the tribunal existed, they 
 might be willing to submit the case to its decision. 
 Those who have had experience in such matters know 
 that it is hard to agree upon judges, yet that nations are 
 unwiUing to submit their disputes to a tribunal whose 
 constitution is unknown. Delays thus occur, whereas 
 the case should be decided promptly and removed from 
 the field of international controversy. Again, judges 
 chosen for a particular purpose are supposed to be 
 friendly to the appointing powers, otherwise they would 
 not have been selected; and international awards often 
 betray traces of compromise. Again, a temporary 
 tribunal does not bind another different temporary 
 tribunal any more than it is bound by its predecessor, if 
 it can be considered to have a predecessor. The decision 
 is not likely to be a precedent, as would inevitably be 
 the case if it were decided by a permanent tribunal com- 
 posed of the same judges passing upon a like question. 
 
 It is common knowledge that international law is not 
 developed by the awards of temporary tribunals. The 
 advantage, in fact the need, of an authoritative interpre- 
 tation of international treaties or agreements requires 
 neither elaborate statement nor argument, and it is 
 obvious that the decisions of a permanent international 
 court constituted by the parties to such treaties or agree- 
 ments would bind all of the contracting parties forming 
 
38 LAW AND ORDER IN INDUSTRY 
 
 the judicial union, just as the, decisions of the Supreme 
 Court of the United States bind the members of the 
 American Union. Finally, the temporary tribunal is 
 costly in comparison with a permanent court. 
 
 In connection with the negotiations for a permanent 
 treaty of arbitration between the United States and 
 Great Britain, Lord Salisbury, writing to Sir Julian 
 Pauncefote in March, 1896, in reference to the class of 
 cases in which differences might arise involving issues 
 which concerned the State itseK, considered as a whole, 
 said: 
 
 K the matter in controversy is important, so that 
 defeat is a serious blow to the credit or the power of the 
 litigant who is worsted, that interest becomes a more or 
 less keen partisanship. According to their sympathies, 
 men wish for the victory of one side or another. 
 
 Under the "preferential union shop" arrangement, 
 the manufacturers undertook to strengthen the union. 
 Their purpose was clearly understood by both parties. 
 If there was to be peace and order in the industry by 
 restraint of the passions of men and resort to reason 
 instead of force, the strong power of the workers' own 
 organization must be welded into some sort of a police 
 department for the industry, and, likewise, the em- 
 ployers' organization must be another arm of such a 
 police department. 
 
THE POLICY OF THE PROTOCOL 39 
 
 For all of the advances granted to the workers by this 
 agreement, the employers received but two substantial 
 considerations in exchange — the promise of a rational 
 and peaceable method for securing adjustment of future 
 controversies and the equal enforcement of standards 
 and wage conditions throughout the entire industry. 
 In the conference over which Mr. Brandeis presided 
 on the 29th of July, 1910, 1 said, on behalf of the manu- 
 facturers: 
 
 Now, one of the things that we welcome, in this situa- 
 tion, is the possibility of establishing standard rates of 
 compensation throughout the industry. We want, if we 
 are going to agree to pay your people a certain standard — 
 we want to be sure that our competitor, Mr. Dyche, will 
 not be able to get the work done for less than that; that is 
 the difficulty. So long as this has been left, not as a 
 matter of regulation, but as a matter of competition, 
 there is nothing to prevent the worker from working 
 for whatever he can get, and there is nothing to prevent 
 the employer from cutting him down to the lowest 
 terms, and we are driven of necessity to compete with 
 the others who are paying the lowest wages, so that the 
 result of it is the constant lowering of the wage instead of 
 increasing it. We recognize that just as you must have 
 recognized it before, and I want to say that in this con- 
 nection of the wage standard we seek in the organization 
 of your Union one of the strongest means by which to 
 prevent the inexorable law of competition, reducing the 
 standard of living in your industry and we welcome your 
 Union for that, if not for a great many other things. All 
 
40 LAW AND ORDER IN INDUSTRY 
 
 we want though is some reasonable expectation that the 
 Union is going to live up to its part and to this promise 
 to us* 
 
 This was the ground-work of the expectation of busi- 
 ness men, looking forward to a better organization of 
 industry and ready to join in an effort to secure it. Ac- 
 cordingly, they agreed to strengthen the union and, in 
 cooperation with it, to bring order out of chaos. If such 
 a result could be accomplished, the social and the business 
 aims of the industry could be harmonized. Of necessity, 
 the problem was one requiring for its solution the help 
 of both parties. There would be conflict of interest, 
 but in spite of the conflict there could be agreement be- 
 tween the manufacturer of broad outlook and the labor 
 leader who sought improvement in the working condi- 
 tions in the industry. Both had a common task. Cloak 
 manufacturers are no better and no worse than lawyers. 
 If the Bar Association had no discipline committee, the 
 roster of convicted and disbarred lawyers would not 
 be so long. It is the associated effort to raise the pro- 
 fession that makes for cleaner conduct generally. It 
 was the conception of the industry, as in a measure, a 
 profession in which mere gain or livelihood was not to 
 be regarded as the sole object of activity, that gave 
 the breath of life to the Protocol and inspired the leaders. 
 This spirit, this ideal, no lawyer could give to his clients. 
 * Minutes of Conference, July 29, 1910. 
 
THE POLICY OF THE PROTOCOL 41 
 
 He could bring method to carry into actual practice 
 and show the way, but he could not furnish the vision 
 or the faith. And the natural method was that of parUa- 
 ment and the law courts — orderly debate, study, con- 
 troversy — but decision by a process of reasoning, not 
 of coercion by one power against another. The men 
 who dreamed of such a program knew well enough that 
 the millennium would stiU be far off. And they knew 
 that the introduction of the parliamentary method into 
 government, like the introduction of the juridical method 
 for the settlement of private disputes, would not bring 
 about complete and uniform justice. They knew that 
 so long as laws must be made and administered by human 
 beings, with the defects of temper and of intellect of 
 human beings, error would be sure to arise. The faith 
 of the parhamentarian and the lawyer that, in the long 
 nm, justice is more approximately secured and progress 
 made with less waste by the parUamentary and juridical 
 method, is based upon the sohd foundation of human 
 experience. 
 
 The Board of Grievances was created to take care of 
 ordinary shop difficulties that would not require the 
 services of the higher tribunal. Its procedure was neb- 
 ulous. The protocol contained the barest outlines of 
 its fimctions. The lawyers who drew the protocol knew 
 the evils of the law's delays and the consequences of 
 complexity of procedure. They sought to devise the 
 
42 LAW AND ORDER IN INDUSTRY 
 
 simplest method possible for ascertaining truth in a 
 shop or factory controversy. 
 
 This, then, was the poHcy of the Protocol: Assuming 
 controversy and conflict between parties having diver- 
 gent interests as iaevitable, that such controversy and 
 conflict should be put upon the plane of procedure of 
 civilized and orderly men; that Justice, however approxi- 
 mate, should be arrived at by the rational method, and 
 that law and order should take the place of anarchy. 
 
CHAPTER IV 
 
 THE JOINT BOARD OF SANITARY CONTROL 
 
 In 1910 the factories of the cloak and suit manufac- 
 turers were distributed in various parts of the city. Some 
 were on the lower East Side, some were in Greene, 
 Wooster and Mercer Streets. But the larger manufac- 
 turers were in loft buildings in what was then known 
 as the "uptown" district. This district embraced Fifth 
 Avenue and the adjacent side-streets as far north as 
 Twenty-seventh and Twenty-eighth Streets. The better 
 sanitary conditions were to be found in these larger loft 
 buildings, where some of the leading manufacturers 
 had already established modem lunch and rest rooms 
 for employees. That there were unsanitary conditions 
 in many shops both in the loft and East Side districts 
 could not be disputed. In the strike of 1910 much 
 publicity was given to both the good and the bad sani- 
 tary conditions in the industry. Newspaper men and 
 women visited the factories and reported upon the very 
 bad conditions in some parts of the city and the very 
 good conditions in others. It was but natural that the 
 representatives of the union should dwell upon the bad 
 conditions and the representatives of the association 
 
 43 
 
44 LAW AND ORDER IN INDUSTRY 
 
 should dwell upon the good conditions. When, how- 
 ever, the list of grievances to be discussed at the con- 
 ference to be held in July, 1910, was submitted by the 
 imion, no mention was made of the sanitary conditions 
 in the industry. 
 
 As coimsel for the manufacturers, I thought it weak- 
 ened their position to be obliged to face this constant 
 criticism. But quite apart from this line of reasoning, 
 it seemed to me that the industry itself ought to assume 
 the responsibility for its own sanitary conditions, as 
 the Bar assumes responsibility for the ethical conduct 
 of its members. State and local inspection had broken 
 down. Only by the cooperation of both the employers 
 and the workers could any marked improvement be 
 made. I believed that both sides should bring the in- 
 fluence of the public to bear upon the problem and to 
 solve it in an intelligent way. The process of reasoning 
 naturally led to the conception of a triangular board, 
 made up on one side of representatives of employers, on 
 the other of the workers, and on the third of the public, 
 vesting in the board all the power that the union and the 
 association could give, and concreting it with all of the 
 power and influence that the public could bring. I pre- 
 sented the matter to my clients and found that they were 
 more than ready to authorize me to offer my suggestion to 
 the union. The record shows that on the 29th of July, 
 1910, the matter was presented in the following language: 
 
THE JOINT BOARD OF SANITARY CONTROL 45 
 
 May I say this, that in the published discussion of this 
 strike emphasis seems to have been laid upon the un- 
 sanitary conditions in the industry, and the better class 
 of manufacturers were very sensitive about that, because 
 of the fact that they had been making earnest efforts 
 to create sanitary conditions and had met considerable 
 difficulties on the part of their employees. Now, un- 
 doubtedly in some of the shops of the cloak manufac- 
 turers unsanitary conditions exist, and we have learned 
 since these contracts have been signed up that contracts 
 have been signed with some manufacturers who, accord- 
 ing to our standards, have unsanitary shops, and we 
 were rather astonished when the statement of grievances 
 came to us that the sanitary conditions were eliminated, 
 as a grievance. In the statement of grievances there was 
 nothing said about sanitary conditions. I was very glad, 
 therefore, when Mr. London, in making up the topic, 
 included that for discussion here. Now, we are very 
 much concerned about this question, because we have 
 some pride in our industry, and we know that it is ex- 
 ceedingly difficult to observe sanitary conditions. I am 
 frank to confess that I do not see that it will make very 
 much progress here to go into the specific details of 
 unsanitary conditions, and I will suggest to my learned 
 brother that he take under advisement with his people 
 the proposition, that both parties establish as the result of 
 this conference a board of sanitary supervision, on which 
 there shall be people representing the public who shall 
 endeavor to establish a standard to which factories in 
 this industry shall conform, and when that board of 
 sanitary control makes its recommendations, we will 
 legislate for our members on our side, so that no worker 
 will work where these conditions do not exist, and no 
 honorable cloak manufacturer will remain a member 
 
46 LAW AND ORDER IN INDUSTRY 
 
 of our Association if he does not observe these con- 
 ditions.* 
 
 The same afternoon the proposition was accepted by 
 the union and a general outline of the method is con- 
 tained in the following statement then made with the 
 full approval of my clients: 
 
 We realize that the suggestion that I made requires a 
 great deal of efl&cient work to carry it into effect. We 
 are prepared, on our part, I may say that if the suggestion 
 is adopted, to establish a corps of inspectors, paid in- 
 spectors. If your organization cannot afford to pay the 
 whole expense, we will bear the larger burden of it. We 
 are perfectly willing that you shall bear half of the ex- 
 pense, if you can do it out of your organization funds, but 
 we want this general board of control to be so effective — 
 to have reliable people, people whom your committee se- 
 lects, whose business it will be to visit, not only the shops 
 of our own members, but as far as possible, the shops of 
 non-members of our association, and let their reports be 
 the reports on which the General Board of Sanitary Super- 
 vision will act. That is going to require efl&cient manage- 
 ment; going to require efficient skill; going to require 
 good inspection, and we expect to get out of it, by way of 
 return, tJie knowledge on our part that no loose criticism 
 can hereafter be made, — but it will have to be definite, 
 and in addition to that, we will be able to make practical 
 the pride that we have in our industry at the present 
 time. Now, we do not pretend to be white-robed angels 
 on our side; we do not pretend that every man in our 
 association has reached the highest stage of human 
 
 * Minutes of Conference, July 29, 1910. 
 
THE JOINT BOARD OF SANITARY CONTROL 47 
 
 development, but we are going to do our level best to 
 raise him to that standard if we can. We are going to do 
 our level best to make the standard clear, and we are go- 
 ing to do our best to make it enforcible, and we want you 
 to feel that all of your people are not white-robed angels; 
 to see that you have your fair share of the job, and you 
 must be willing to undertake it with us. We will join 
 hands, and we will get out of this strike . . . something 
 that will lift the entire standard of civilization in our 
 city.* 
 
 The provision of the Protocol as it was signed on the 
 2d of September, 1910, contained the following: 
 
 The parties hereby establish a Joint Board of Sanitary 
 Control, to consist of seven members, composed of two 
 nominees of the manufacturers, two nominees of the 
 unions, and three who are to represent the public, the 
 latter to be named by Meyer London, Esq., and Julius 
 Henry Cohen, Esq., and, in the event of their inability 
 to agree, by Louis Marshall, Esq. 
 
 Said board is empowered to establish standards of 
 sanitary conditions, to which the manufacturers and the 
 unions shall be committed, and the manufacturers and 
 the unions obligate themselves to maintain such stand- 
 ards to the best of their ability and to the full extent of 
 their power. 
 
 The scheme thus vaguely outlined at the end of July, 
 1910, became an actuality in September. The Board 
 was formed with distinguished representatives of the 
 
 * Minutes of Conference, July 29, 1910, 
 
48 LAW AND ORDER IN INDUSTRY 
 
 public and the two representatives from each side. Ap- 
 propriations were freely voted and a careful survey of 
 the industry made. Such a survey has been regularly 
 made every six months since that time. The gradual 
 inaprovement in sanitary conditions is disclosed in the 
 printed bulletins and reports of the Joint Board of 
 Sanitary Control. The figures showing the gradual 
 elimination of cellar shops, fire traps, pest holes and 
 like conditions in the industry are most graphically 
 displayed. The Board has had exhibits at the First 
 and Second Expositions of Safety and Sanitation and 
 has been awarded Gold Medals. It has had an exhibit 
 at the exposition in San Francisco and has been awarded 
 a Bronze Medal. No one has recognized its efficacy and 
 appreciated its value to the community so well as the 
 Commissioner of Health of the City of New York, who in 
 July, 1915, commenting upon the termination of the 
 Protocol stated publicly: 
 
 The effectiveness of its work (the Board of Sanitary 
 Control) has been universally recognized and com- 
 mended, and the program oj the Joint Board is to-day the 
 official program of the Department of Health for the sanitary 
 regulation of industry generally. 
 
 The need of sanitary industrial regulation is obvious. 
 Regulation by compulsion, however, is not and never can 
 be wholly satisfactory. There is safety in self-respect, 
 and an industry which undertakes to maintain by its 
 own efforts proper sanitary standards, not only protects 
 
THE JOINT BOARD OF SANITARY CONTROL 49 
 
 itself but is an aid to society. For these reasons the 
 Department of Health is endeavoring to arouse a livelier 
 interest in and a better understanding of sanitary mat- 
 ters in various industries. Our two strongest arguments 
 are these: first, that sanitary standards are desirable; and 
 second, that the maintenance of sanitary conditions is 
 practicable through voluntary effort, in proof of which 
 heretofore it has been necessary only to point to the 
 actual record of the Joint Board of Sanitary Control. 
 The discontinuance of that body is a grave loss to the public- 
 health movement* 
 
 Miss Lillian D. Wald, Chairman of the Executive 
 Committee of the Joint Board of Sanitary Control, writ- 
 ing ia her book, " The House on Henry Street," says: 
 
 (P. 283). Since those days (strike of 1910) cloaks 
 are no longer made in New York tenement homes, and 
 the once unhappy, sweated workers, united with other 
 garment-makers, have been lifted into eminence because 
 of the unusual character of their organization. 
 
 (Pp. 284-285). High sanitary standards and a 
 living wage, with reasonable hours of employment, were 
 assured so long as both parties submitted to the terms 
 of the protocol. Whatever changes in the administra- 
 tion of the trade agreement may be made, the protocol 
 has established certain principles invaluable for the 
 present and for future negotiations. The world seemed 
 to have moved since we shuddered over the long hours 
 and the germ-exposed garments in the tenements. 
 
 * Letter, S. S. Goldwater, M. D., to The New Re-public, appearing 
 under heading "Protocol Aided Public Health," issue of July 24, 1915, 
 P- 314- 
 
so LAW AND ORDER IN INDUSTRY 
 
 The success of the Board as an institution must be 
 regarded as unqualified. The verdict is unanimous. 
 When in May, 1915, the employers foimd it necessary, 
 in their judgment, to temunate the Protocol, they felt, 
 nevertheless, that the work of the Board of Sanitary 
 Control should be continued. Though the termination 
 of the Protocol left no legal basis for the institution, 
 yet on the nth day of June, 1915, the employers wrote 
 the Chairman as follows: 
 
 New York, June nth, 1915. 
 Hon. William J. Schieffelin, 
 31 Union Square, East, 
 New York City. 
 
 Dear Sir: — 
 
 The very excellent work done for the cloak industry 
 during the past five years by the Board, of which you 
 were Chairman, should, in our judgment, be continued. 
 Accordingly, we send you our check for the regular 
 quarter due July ist, 1915, and ask that in the present 
 situation, the representatives of the public take the 
 credentials of the Cloak, Suit & Skirt Manufacturers 
 Protective Association and act for them. We have 
 entire confidence in the management and in the work of 
 the directors, and so far as we are concerned will give it 
 our fullest support. 
 
 Very truly yours. 
 The Executive Committee. 
 Chas. Heineman, 
 Chairman. 
 
THE JOINT BOARD OF SANITARY CONTROL 51 
 
 Dr. Schieffelin replied as follows: 
 
 June 2ist, 1915. 
 To the Executive Committee of the 
 Cloak, Suit and Skirt Manufacturers' Protective Assn., 
 Mr. Charles Heineman, Chairman, 
 200 Fifth Avenue, 
 New York City. 
 
 Gentlemen: — 
 
 The representatives of the public on the Joint Board of 
 Sanitary Control in the Cloak, Suit and Skirt Industry 
 beg to acknowledge receipt of your courteous letter of 
 June nth, enclosing check for $1,250.00 and requesting 
 that the work be continued by us for the Cloak, Suit and 
 Skirt Manufacturers' Protective Association. 
 
 Owing to economies of Dr. Price, the Director, we are 
 glad to say that there is sufficient money in the treasury 
 to enable us to continue for fhe next two or three months 
 without contributions from either side heretofore rep- 
 resented in the Joint Board and we are therefore re- 
 turning the check. When the funds now in the treasury 
 are exhausted and should the Cloak and Skirt Makers' 
 Union also indicate its desire to have a continuance of 
 the Joint Board of Sanitary Control, the members 
 representing the public would be happy to serve both 
 organizations. 
 
 We beg to remind your Association that the Joint 
 Board of Sanitary Control owes its existence to the 
 united action of the Manufacturers' Association and the 
 Cloak and Skirt Makers' Union and that we can only 
 act under a joint agreement of both. 
 
 With thaijss for the appreciation you expressed for the 
 
52 LAW AND ORDER IN INDUSTRY 
 
 work done by the Joint Board of Sanitary Control, I beg 
 to remain, 
 
 Very truly yours, 
 (Signed) William Jay Schieffelin, 
 
 Chairman. 
 
 The Board lived from May to August without a vestige 
 of legal authority. When the Mayor's Council of Con- 
 ciliation met a few weeks later to bring about a renewal 
 of relations (see post, i86) the first question put by the 
 Chairman was: "Can we secure the consent now of 
 both parties to the continuance of the Joint Board of 
 Sanitary Control — regardless of what else may be the 
 subject of controversy?" And both sides immediately 
 answered "Yes." 
 
 In outlining the union's conception of the valuable 
 features of the Protocol, its counsel has never failed to 
 list first of all the beneficent work of this institution. 
 Under the jurisdiction created by the few lines in the 
 Protocol, this institution had raised the sanitary stand- 
 ards of the entire city, affecting the health and lives of 
 not less than eighty thousand workers, had established 
 a system of regular fire drills, a system of careful medical 
 examination for the workers who applied for it, had 
 created a Sick Benefit Fund, had worked out measures 
 for fire protection, first aid to the injured, had studied 
 a plan for insurance against tuberculosis and other in- 
 fectious diseases, and had given instruction in hygiene 
 
THE JOINT BOARD OF SANITARY CONTROL 53 
 
 to the workers themselves. One of the inspectors (a 
 former leader of the union) writes in the Bulletin: 
 
 It takes a good many arguments to convince them (the 
 workers) that the body is nourished by fresh air, cleanli- 
 ness and sunlight as well as food." * 
 
 Here, then, is an institution which has demonstrated 
 its soimdness in theory and its utility in practice. Side 
 by side, other institutions created by the Protocol failed 
 to function so well. Careful study and comparison of 
 both success and failure would seem to offer a fruitful 
 method for arriving at sound conclusions. 
 
 It is no part of the work of this voliune — indeed, the 
 intent of the author is quite the reverse — to censure 
 or to praise individuals. But the work of the Board of 
 Sanitary Control cannot be understood unless we un- 
 derstand the Director f and his view-point. He was 
 brought to an institution that existed only in theory, 
 just as our U. S. Supreme Court existed only in the 
 minds of the framers of the Constitution when it was 
 signed. It was pioneer work. He came first as one 
 of the two nominees appointed by the union; very soon 
 thereafter, at the request of the two representatives of 
 the employers and the three representatives of the 
 public, he became the authorized acting head, with 
 
 * Rose Schneiderman. 
 t Dr. George M. Price. 
 
54 LAW AND ORDER IN INDUSTRY 
 
 the title of Director. From the very outset, the in- 
 stitution has had the loyal support of aU three sides, 
 time, money and energy being freely contributed. The 
 Director was a medical man — a doctor who healed sores — 
 but filled with a desire to do something better than 
 alleviating individual cases of physical distress. To 
 Tn'm preventive medicine was more important than heal- 
 ing the sick. Yet he had been a Health Department 
 inspector and knew the practical difl&culties of factory 
 hygiene. The Joint Board offered to him a great oppor- 
 tunity for real social service, and incidentally the ful- 
 fillment of a deep personal ambition. He gave up his 
 private practice for a more precarious position. (Who 
 could tell how long the Protocol would last?) It is 
 but simple fairness to state that the Board owes its 
 unqualified success to this healer of sores. 
 
 The first step in a carefully outlined program prepared 
 by him was to make a careful investigation into the 
 facts. Never before was such a survey made of any 
 industry. Conditions were found to be bad — ^not so 
 bad as the Doctor found later in other industries when, 
 following the same lines, he made surveys for the State 
 Factory Commission — ^but bad enough. Before the 
 great Asch Building fire, the Joint Board of Sanitary 
 Control had already discovered the fire traps in the 
 cloak industry and had given warning to the municipal 
 government. 
 
THE JOINT BOARD OF SANITARY CONTROL 55 
 
 After investigation, the next step was legislation— the 
 making of an Industrial Code of Standards for the indus- 
 try by the parties themselves. Here the Board went 
 slow. It did not seek to bring about the sanitary mil- 
 lenniimi aU at once. To illustrate its conservatism: In 
 1914 the Director appeared before the State Industrial 
 Board in opposition to certain standards offered for 
 acceptance by that Board, because in his opinion they 
 were too drastic for practical utility. The standards 
 he recommended in 1910 were accepted by aU parties, 
 were amended and improved from year to year, and 
 were enforced. How? By rigorous semiannual in- 
 spection, by using the disciphnary power of both or- 
 ganizations, the union and the association, by using 
 the police power of the Labor, Health and Fire De- 
 partments, and by education of employer and worker 
 both. 
 
 In a Bulletin issued by the Health Commissioner of 
 New York City, recommending the Board's work as a 
 model for similar industries, he says: 
 
 How well this organization has succeeded in its work 
 can best be judged by those who have followed from time 
 to time the published reports of its work. Certainly the 
 results have been extremely gratifjdng. Perhaps the 
 most important progress made has been in the education 
 of both workers and employers. In fact, the main 
 difference between the method of inspection and adminis- 
 tration as adopted by the Board of Sanitary Control and 
 
S6 LAW AND ORDER IN INDUSTRY 
 
 as conducted by State Labor Departments lies in the 
 fact that the former have entirely abolished police and de- 
 tective inspection. The object has not been to catch the 
 manufacturer in a violation of the law or of the Board's 
 regulations, or to force sanitation upon an unwilling and 
 unsympathetic object of official attention, but to make 
 employers and workers recognize the fact that sanitary 
 standards are beneficial to both.* 
 
 The Board has published regular Bulletins,t giving 
 outUnes of its methods, comparative tables showing 
 the progress in the betterment of conditions; it has 
 held lectures, mass meetings, and has distributed 
 literature widely among the workers, giving them sug- 
 gestions for the better care of their health. And it 
 has none but friends; employer, worker and social re- 
 former all cooperating and finding in their task a 
 common one. 
 
 What is there about its work peculiar or imique in 
 effectiveness? 
 
 There has been pressure, of course, brought to bear 
 for the enforcement of standards, but no coercion. At 
 no time was there in evidence a pohceman's club of 
 any kind. The method has been the rational method 
 of the doctor, the educator and the lawyer. Compare 
 
 * Weekly Bulletin of the Department of Health, City of New York, 
 November 14, 1914. 
 
 t Copies can be had upon application at 31 Union Square, New 
 York City. 
 
THE JOINT BOARD OF SANITARY CONTROL S7 
 
 its methods with those of the U. S. Coiimiission on 
 Industrial Relations.* Then compare the results. No 
 blare of trumpets, no denunciation of one side or the 
 other, no arousing of prejudices. Just a plain doctor 
 or lawyer-like way of getting of the facts: diagnosis, 
 then a doctor or lawyer-like way of finding a remedy — 
 mind you, with fuU recognition of all the psychological 
 factors involved — and in administering the job, a busi- 
 ness man's efl&ciency producing enough small economies 
 to make the average business man stare. A combination 
 of the world's experience in sanitation and hygiene, 
 brought down to date, with a practical, business-like 
 administration, spurred forward by a deep social and 
 humane impulse. 
 
 There is as much that is dramatic about such an insti- 
 tution as there is about a Red Cross hospital. There is 
 more exhilaration to be found in fljdng an airship over 
 the enemy's camp, but here is the longer-run service, 
 the contribution of real and lasting value. I venture 
 the prophecy that when the contributions of the union 
 to social progress in this industry are inventoried and 
 appraised, a higher mark of performance and merit 
 will be given to the doctor nominated as its first repre- 
 sentative than to the various and sundry persons, who 
 in 1907 and 1910 broke the law and some one's head 
 
 * See editorial, The Short Cut, The Nm Republic, September 18, 191s, 
 p. 168. 
 
S8 LAW AND ORDER IN INDUSTRY 
 
 at the same time, moved, I make no doubt, by a love 
 for their fellows no whit less deep than the Doctor's 
 own. 
 
 Quite apart from the great advance in hygiene and 
 safety in the industry itself, the Board set the example 
 which made it possible, in 1913, to create a similar 
 board in the dress and waist industry (where the Asch 
 Building fire occurred). It brought about the State 
 Industrial Board and furnished, as the Health Com- 
 missioner says, the very necessary example for all other 
 industries. 
 
 But it did more. It demonstrated beyond cavil or 
 criticism what can be done when employer, worker and 
 public jointly utilize and utilize intelligently their power 
 to accomplish a common purpose. The method employed 
 was what the doctor calls the scientific method. The 
 lawyer would call it the parliamentary and juridical 
 method. Get at the truth first by finding and dissecting 
 the evidence. Do it with no prejudice or emotion. Do 
 not blink the facts. Hew straight to the line. Then 
 apply to the facts the best principles of hiunan conduct 
 you can find, those only sustained by the experience 
 of mankind. Put your prescription up in a judicial 
 decree or in a legislative enactment. And where you 
 have an industry in process of self-regulation, provide 
 machinery for securing judicial and legislative determi- 
 nation. 
 
THE JOINT BOARD OF SANITARY CONTROL 59 
 
 But suppose you have no police power to enforce your 
 decree or your legislative enactment? 
 
 And suppose the "principles of human conduct" 
 you seek to apply have not yet been discovered? 
 
6o 
 
 LAW AND ORDER IN INDUSTRY 
 
 FOUR YEARS PROGRESS 
 
 IN THE 
 
 CLOAK AND SUIT INDUSTRY 
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CHAPTER V 
 
 THE BOAED OF GRIEVANCES 
 
 For the purpose of securing some kind of law and 
 order in the industry two institutions were created, 
 the Board of Arbitration * and the Board of Grievances. 
 It is but fair to say that those who devised the scheme 
 of both institutions had nothing more definite in mind 
 than the acceptance frankly of the probabihty of con- 
 troversy and providing some ready machinery to meet 
 it as it arose. Was it practicable to create machinery 
 that would stand the strain of continuous and daily 
 conflict? No one then believed that in the succeeding 
 four and one-half years the jurisdiction of the Board of 
 Arbitration and the Board of Grievances would be ex- 
 ercised in something like 16,000 cases. That cases 
 would arise and that they could not be rationally settled 
 by either the method of the strike or the lockout was 
 clear in the minds of the lawyers who framed the Protocol. 
 The eighteenth paragraph of the Protocol provided: 
 
 The parties hereby estabhsh a Committee on Griev- 
 ances, consisting of four members composed as follows: 
 
 * See paragraphs XVI and XVII of the Protocol. 
 61 
 
62 LAW AND ORDER IN INDUSTRY 
 
 Two to be named by the manufacturers and two by the 
 unions. To said committee shall be submitted all minor 
 grievances arising in connection with the business rela- 
 tions between the manufacturers and their employees. 
 
 It wiU be observed that this created a bi-partisan board. 
 Its niunber was very soon increased from four to six 
 on each side, with alternates. Its jurisdiction was not 
 outlined in detail. Whether it was to be in the nature 
 of a legislative body, a conciliation body, or a judicial 
 body only subsequent events could and did determine. 
 It has since become all three. Obviously the simplest 
 cases to dispose of were those in which an employer had 
 failed to observe the definite standards estabhshed by 
 the Protocol. He had worked overtime when work was 
 prohibited, or he had worked illegally on a holiday or a 
 Sxmday, or he had paid less than the scale. Such cases 
 presented simple questions of fact. It is one of the 
 striking and unique experiences of the workings of this 
 Board that throughout its entire experience there never 
 was a deadlock upon a question of fact.* (This statement 
 was, it is true, controverted during the years 191 2 and 
 1913 between the imion and the association, and since 
 the Board of Arbitration was imable to determine the 
 question without a careful investigation into the records 
 of the Board, such an investigation was made and was 
 
 * See Bulletin 144, Bureau of Labor Statistics, Department of Labor, 
 p. 38. 
 
THE BOARD OF GRIEVANCES 63 
 
 subsequently adopted ofladally by the United States 
 Department of Labor. It is now known as Bulletin 144 
 of the U. S. Department of Labor, Bureau of Labor 
 Statistics, entitled, "Industrial Court of the Cloak, 
 Suit and Skirt Industry of New York City." It demon- 
 strates that upon questions of fact the parties could 
 and did come to an agreement.) 
 
 Bearing in mind that the Board had no chairman, 
 theoretically it was always subject to deadlock. Assum- 
 ing that the representatives of the union would always 
 stand by their member and that the representatives of 
 the employers' association would stand by theirs, there 
 was a strong theoretical probability of deadlock. But 
 it is a high tribute to the resourcefulness of both sides 
 that such deadlocks never, in fact, occurred. Acute 
 controversy in the Board of Grievances and deadlock 
 raged about more fundamental matters, matters of 
 principle, or as they were called, Protocol Law; but for 
 the solution of such controversies the Board of Arbitra- 
 tion was created. The very first session of the Board 
 of Arbitration in March, 191 1, was devoted to a careful 
 study of such fundamental matters and incidentally 
 of the work of the Board of Grievances. Before the 
 Board of Arbitration the association charged that the 
 provisions against strike had been repeatedly violated 
 by members of the imion without redress on the part 
 of the employers. On the other hand, the union charged 
 
64 LAW AND ORDER IN INDUSTRY 
 
 that they had failed to secure adequate redress for com- 
 plaints in "discharge cases." On March 14, 1911, the 
 Board of Arbitration * rendered a decision upon these 
 points and formulated, with the aid of coimsel for both 
 sides, "Rules and Plan of Procedure of the Board of 
 Grievances." This was the first constitution or by-laws 
 of the Board of Grievances. In its decision, the Board 
 of Arbitration, speaking of the workings of the Protocol, 
 stated (March, 191 1): 
 
 From the evidence submitted upon this hearing and 
 the statement of counsel for both sides, the Board is 
 convinced that the Protocol has during the six months 
 of its operation fully justified the expectations of its 
 drafters, and that its operations have on the whole had a 
 most beneficial effect upon the relations of the employers 
 and employees in the cloak industry. 
 
 After reviewing and praising the work of the Board of 
 Sanitary Control (it had made its first report), the 
 Board said: 
 
 The work of the Grievance Committee, on the other 
 hand, has not been as successful as that of the Sanitary 
 Board. 
 
 Why? The Board answers: 
 
 ... the fault for the defective operation of the 
 Committee does not lie with its members or with the 
 
 * Then consisting of Louis D. Brandeis, Hamilton Holt, and Morris 
 Hillquit. 
 
THE BOARD OF GRIEVANCES 6$ 
 
 spirit in which the proceedings were conducted. On the 
 contrary, it appears that the members of the Committee, 
 representatives of both sides to the Protocol, were at all 
 times animated by a sincere and earnest desire to adjust 
 all grievances brought before them promptly and equita- 
 bly, and as a matter of fact, they have succeeded in 
 adjusting disputes in a very large niunber of individual 
 cases to the satisfaction of all parties concerned in such 
 disputes. 
 
 The Board refers to the fact that in six months no less 
 than 119 cases were brought before the Grievance Com- 
 mittee, and that of this number 107 had been adjusted, 
 and only twelve were pending at the time of the hearings 
 before the Board of Arbitration. It finds that: 
 
 The decisions in all cases were unanimous or nearly so, 
 and there seem to have been no serious divisions between 
 the representatives of employers and employees in any 
 case. 
 
 Now note the following observation by the Board of 
 Arbitration: 
 
 But the Grievance Committee when established by the 
 Protocol, was largely an experiment. The Protocol was 
 very meager on the question of the jurisdiction of the 
 Committee, and wholly failed to provide for proper rules 
 of its procedure. 
 
 Of course, if at the time of the signing of the Protocol 
 the draughtsmen had stopped to agree upon a set of 
 rules for the Board of Grievances, the strike would not 
 
66 LAW AND ORDER IN INDUSTRY 
 
 have been settled — there would have been no Protocol. 
 Says the Board further: 
 
 The Grievance Committee thus had to evolve its own 
 methods in the light of its experience and the exigencies of 
 the situation as they arose from time to time. 
 
 It foimd that the Committee had endeavored "to adopt 
 a complete and comprehensive set of rules of procedure 
 for the Committee, but in that attempt certain differ- 
 ences of opinion (had) developed between counsel for 
 both sides." These differences of opinion the Board of 
 Arbitration took up and disposed of. 
 
 Its final disposition was the establishment of the rules 
 (Appendix B). The differences between the parties 
 thus disposed of were important. They related to the 
 enforcement of the provisions of the Protocol prohibiting 
 shop strikes, and to the method of investigation into 
 shop disputes. In short, the differences of opinion pre- 
 sented the problem of enforcement of the law and re- 
 quired again the invention of rational and simple ma- 
 chinery. There were no precedents to go by. For the 
 enforcement of the law the following provisions were 
 finally adopted as sections XVII, XVIII and XIX of 
 the Rules and Plan of Procedure of the Board: 
 
 XVII. If a grievance arises because of the general 
 stoppage of work of a shop or department of a shop, 
 either by direction of the employer or because of or by 
 
THE BOARD OF GRIEVANCES 67 
 
 the concurrent action of the employees, upon complaint 
 received, the clerks, or their deputies, shall immediately 
 proceed to the shop or department where the trouble 
 occurs. If the employer is responsible for the stoppage, 
 he shall, upon the demand of the clerks, or their deputies, 
 immediately recall all his employees, pending the adjust- 
 ment by the Board of any grievance he may have, and he 
 shall thereupon frame and present his grievance; if the 
 employees are responsible for the stoppage, notice shall 
 be immediately given to them to return to work pending 
 adjustment of the grievance by the Board and the chair- 
 man of the Price Committee shall immediately direct 
 them to return to work. 
 
 XVIII. A violation of the provision of Section XVII 
 of these rules or of Section XVII of the Protocol, by either 
 employer or employee, shall constitute a grievance to be 
 presented to the Board of Grievances. If, after hearing, 
 the Board finds the defendant guilty, the order of the 
 Board shall be made the basis of prompt discipline in the 
 Association or the Unions as the case may be. Such 
 discipline shall consist of a suitable fine or expulsion. 
 The action so taken shall forthwith be reported in writing 
 to the Board of Grievances. 
 
 Under these rules the name of the tribunal was changed 
 from "Committee" to "Board of Grievances." 
 
 Upon this branch of the subject, it will be observed, 
 reUance is placed entirely upon the enforcement of the 
 law by the party whose member offends. This principle 
 of enforcement appUes to each side. The association is 
 to discipline its own member gxiilty of violating the law; 
 the union is to discipline its own member guilty of vio- 
 
68 LAW AND ORDER IN INDUSTRY 
 
 lating the law. Each reserves the right of trial of its 
 own members. Note here the distinction in method 
 between the workings of the Board of Sanitary Control 
 and the Board of Grievances: The Board of Sanitary 
 Control could call to its assistance the powers of the 
 State and the municipality and could bring to bear 
 the pressure of public opinion. But for the suppression 
 of the shop strike or the enforcement of Protocol stand- 
 ards upon members of the association, each of the parties 
 to the agreement is dependent upon the other for the 
 exercise in good faith of such pressure as it can bring 
 to bear upon its own member. For the enforcement 
 of standards upon employers not members of the asso- 
 ciation, the latter is dependent whoUy upon the union. 
 How far this proved effective we shall see later. 
 
 Upon the other branch of the controversy presented 
 to the Board of Arbitration, namely, the method to be 
 employed for ascertaining the facts and adjusting an 
 ordinary shop controversy, there was devised the sys- 
 tem of shop investigation by clerks and deputy clerks. 
 This introduced an entirely new system, copied, so far 
 as I know, from no other experience and later the sub- 
 ject of much controversy and criticism. It will bear 
 careful analysis. 
 
CHAPTER VI 
 
 THE CHIEF CLERKS AND THE DEPUTIES 
 
 The March, 1911, session of the Board of Arbitra- 
 tion involved debate over a rule proposed by the unions, 
 which meant in effect the authorization of the repre- 
 sentatives of the unions or any persons designated by 
 them to inspect shops, even where no charge had been 
 lodged against the employer, in order, as stated by the 
 union, to ascertain whether the provisions of the Proto- 
 col were being Uved up to in such shops, and in order 
 also to afford the unions an opportunity to investigate 
 informal complaints, so as to determine whether they 
 should be brought before the Grievance Committee. 
 On behalf of the unions it was contended that in the 
 absence of such a rule complete justice could not be 
 done to the employees, for the reason that many of 
 them would fail to present grievances, even if they were 
 fully justified, for fear of being disciplined by the em- 
 ployer; and that, on the other hand, a preHminary in- 
 vestigation by the union representatives would avoid 
 bringing before the Grievance Committee trivial com- 
 plaints. The employers, on the other side, asserted 
 that such a rule would result in frequent and arbitrary 
 
 69 
 
70 LAW AND ORDER IN INDUSTRY 
 
 visits of union representatives in the shops, would stimu- 
 late unnecessary complaints, disturb shop routine and 
 cause needless friction between the employers and the 
 employees. In short, they saw in the proposal of the 
 union the reestablishment of the old-fashioned walking 
 delegate. Doubtless the imion had good reason for 
 believing in the eflScacy of the system it proposed. It 
 seemed simple. Upon complaint of any member of 
 the union the walking delegate would appear and en- 
 deavor to adjust the matter with the employer. If he 
 failed, a shop strike would ensue. But usually the effect- 
 iveness of the threat was the determining factor in 
 the adjustment of the case. If the walking delegate 
 were of a conciliatory temperament and the employer 
 was disposed to be fair, there might be Uttle difficulty. 
 On the other hand, if the walking delegate felt called 
 upon always to fight for his side, the employer could 
 not secure fair treatment, and there would be constant 
 conflict. Justice would be administered, then, upon 
 the basis of the temporary strength and weaknesses of 
 the contestants and not upon the real merits of the 
 controversy. Naturally, such a plan was not acceptable. 
 The Board of Arbitration, to meet both sides' re- 
 qmrements, adopted the method now outlined in Rules 
 IV and XI (Appendix B) . In brief, this system provides 
 first for the submission of a complaint in writing by 
 the organization whose member is aggrieved to the 
 
THE CHIEF CLERKS AND THE DEPUTIES 71 
 
 organization whose member is complained of; then an 
 investigation into the facts at the shops by representa- 
 tives of both sides, attending at the same time, these 
 representatives (the clerks) endeavoring to ascertain 
 the truth, and as often as practicable coming to a joint 
 verdict upon the evidence; finally, an adjustment of 
 the diflSculty by them, if an adjustment can be arrived 
 at. If the clerks agree, it is an end to the case, except 
 that the employer may appeal to the Board of Grievances. 
 If the clerks deadlock, the matter then comes to the 
 Board of Grievances for its consideration. Under this 
 system some fourteen or fifteen thousand complaints 
 were liquidated. 
 
 This system has been carefully studied. In May, 
 1913, the union having requested an amendment to 
 the Protocol which would provide for an additional 
 person to be known as the "Impartial Referee" to sit 
 with the Board of Grievances, the union contended 
 that it did not receive adequate justice under the exist- 
 ing procedure. The manufacturers' association denied 
 the charge, contending that the claun of the unions 
 could easily be disproved "by an examination of the 
 records of the board of grievances; that the system 
 proposed by the unions would be destructive of the 
 existing system of arbitration and conciliation, and 
 would practically put the control of the industry in the 
 hands of a single outside person. . . ." The parties 
 
72 LAW AND ORDER IN INDUSTRY 
 
 having deadlocked on this point, an appeal was taken 
 to the Board of Arbitration under Rule XXI. After 
 numerous hearings before the Board, that body decided 
 that before it could arrive at any decision it would make 
 a careful study of the workings of the Board of Griev- 
 ances, and thus reveal the nature and disposition of 
 the cases it had passed upon, and "further to reveal 
 the efficiency of this organization in fulfilling its primary 
 functions, viz., administering justice in the industry, 
 supervising the adjustment of grievances by the clerks, 
 and adjusting aggravated cases upon which the clerks 
 could not reach a decision." This investigation was 
 carried on by the same representative of the U. S. Gov- 
 enmient * who in 191 2 had made a study of the industry 
 for the United States Department of Labor.f His re- 
 port is Bulletin 144, already alluded to. It contains 
 in detail an analysis of the work of the Board of Griev- 
 ances, a statement of the quality of the legislative and 
 judicial work done by the Board, and an analysis of the 
 character of cases adjudicated upon by the clerks and 
 by the Board of Grievances. The investigation dis- 
 closed that out of a total of 7,656 complaints filed be- 
 tween April 15, 1911, the date of the creation of the 
 Board of Grievances, and October 31, 1913, 7,477, or 
 97.7 per cent, were adjusted by the clerks. The balance, 
 
 * Charles H. Winslow. 
 t Bulletin 98. 
 
THE CHIEF CLERKS AND THE DEPUTIES 73 
 
 179, or 2.3 per cent, were handled by the Board of Griev- 
 ances. Of the latter group, 159 were settled by the 
 Board. The remaining 20, the Board being unable to 
 agree, were referred to the Board of Arbitration for 
 final adjudication. Of these 20 cases, 12 involved the 
 same disputed point — a controversy over the inter- 
 pretation of the Protocol as to the payment for a 
 holiday. As this involved a question of interpreta- 
 tion which could be passed upon finally only by the 
 Board of Arbitration, it left but 9 actually deadlocked 
 cases. In other words, one-tenth of one per cent of all 
 the cases that arose during the entire period of the 
 existence of the Protocol up to that time were dead- 
 locked in the Board of Grievances. Of these nine cases, 
 the investigation showed that they were cases involving 
 serious and fundamental differences. 
 
 The findings of this investigation establish that, upon 
 the whole, the system devised in 191 1 worked satisfac- 
 torily in 99 per cent of the cases; yet because of the 
 I per cent it broke down partially in 19 13 and com- 
 pletely in 1915. Why? 
 
CHAPTER VII 
 
 A SIDELIGHT 
 
 Before proceeding further with the study of the 
 cloak and suit industry, let us turn to another experiment 
 in another city, in an industry very similar, though not 
 precisely the same, but which owes its machinery in 
 very large measure to the experiences in the New York 
 cloak and suit industry. It is the story of the four years' 
 experience of a clothing firm of national reputation,* 
 synchronizing in time and method with the experiences 
 we are studying here. The experience has been graphi- 
 cally reviewed imder the title "A Way to Industrial 
 Peace." f In 191 1 a strike affecting the entire men's 
 clothing industry in Chicago and involving fifty thousand 
 people broke out. The strike was settled, so far as the 
 one firm in question was concerned, by the estabhsh- 
 ment of an arbitration committee of three, one selected 
 by the firm, one by the workers, and the two choosing a 
 third. Provision was made that, "Said committee shall 
 consider and adjust whatever grievances employees may 
 have, and shall fix a method of settlement of grievances 
 
 * Hart, Schaffner and Marx, 
 t George Creel: The Century, July, 1915. 
 
 74 
 
A SIDELIGHT 75 
 
 in the future, findings to be binding on both parties." * 
 On March 13th this Board of Arbitration handed down 
 a decision which contained the following paragraph: 
 
 As to any future grievances, the firm shall establish 
 some method of handling such grievances through some 
 person or persons in its employ, and any employee, either 
 by himself or an individual fellow worker, shall have the 
 right to present any grievance at any reasonable time, 
 and such grievance shall be promptly considered by 
 the person or persons appointed by said firm, and in case 
 such grievance shall not be adjusted, the person feeling 
 himself so aggrieved shall have the right to apply to some 
 member of said firm for adjustment of said grievance, 
 and in case the same shall not be adjusted, such grievance 
 may be presented to Clarence Darrow and Carl Meyer, 
 who shall be constituted as a permanent board of arbi- 
 tration to settle any questions that may arise between 
 any of the employees and said firm, for the term of two 
 years from April i, iQii.f 
 
 After studying the New York experience the employers 
 established a labor department and placed in charge a 
 trained economist and industrial expert. To this depart- 
 ment was given oyer the handling of aU grievances. The 
 work of the Board of Arbitration became so engrossing 
 that it was soon found necessary to establish a sub- 
 ordinate tribunal. This tribunal consisted of a trade 
 
 ♦George Creel: A Way to Industrial Peace, The Century, July, 
 iQiS; P- 436. 
 
 tw. 
 
76 LAW AND ORDER IN INDUSTRY 
 
 court, composed of five foremen, five workers, and an 
 impartial umpire. The head of the labor department 
 for the employers became one of the two chief clerks of 
 this board. The leader of the union became the other 
 chief clerk. In 1913 the same controversy that arose in 
 the New York cloak strike in 1910 came up, the fight 
 of the union for the closed shop. The position of the 
 employers was stated by the head of the firm as follows: 
 
 As long as the unions are working toward the ideal of 
 justice to every interest cormected with the institution 
 and the highest economic efficiency — ^performing duty 
 to everybody inside and outside the institution — em- 
 ployees, stockholders, customers, and the general public, 
 we wish to see them strong. Because there is no guaranty 
 that those who control the unions will hold to this ideal, 
 we do not care to be committed to the "closed shop." * 
 
 After careful study of the workings of the preferential 
 union shop in New York, the parties agreed upon the 
 following tentative working basis: 
 
 That the firm agrees to this principle of preference: 
 they will agree to prefer union men in the hiring of new 
 employees, subject to reasonable restrictions, and also 
 to prefer union men in dismissal on account of slack 
 work, subject to a reasonable preference to older em- 
 ployees, to be arranged by the board of arbitration, it 
 being understood that all who have worked for the firm 
 six months shall be considered old employees.* 
 
 * George Creel: A Way to Industrial Peace, The Century, July, 191S1 
 p. 438. 
 
A SIDELIGHT 77 
 
 The Board of Arbitration held also that the door of the 
 union must be kept open for the reception of non-union 
 workers; that initiation fees and dues must be main- 
 tained at a reasonable rate, and that if any rules be 
 passed that impose unreasonable hardship or that operate 
 to bar desirable persons, there may be instant appeal 
 to the Trade Board or to the Board of Arbitration. 
 
 The verdict upon the experience in this industry is 
 stated in the language of the head of the firm: 
 
 Industrial peace will never come so long as either 
 employer or employee believes that he is being deprived 
 of rights honestly belonging to him. 
 
 Arbitration and conciliation should be applied to all 
 departments of a business wherever there is a conflict 
 of interest. If nothing, more, it insures exhaustive dis- 
 cussion of every matter of importance, gives everybody 
 an opportunity to express his opinions, frequently brings 
 to light valuable suggestions, and makes possible a higher 
 degree of cooperation and team-work. It is a method to 
 be employed continuously to secure harmony and satis- 
 faction. 
 
 Patience and self-control are essential in administering 
 a business on this basis. It is human nature to resent 
 interference and to desire unrestricted liberty of action, 
 but these conditions are not necessary and are often 
 inimical to true success. Few men can use unUmited 
 power wisely, and no wise man wiU dispense with checks 
 which tend to keep him in the right path; certainly he 
 will approve of checks calculated to restrain his agents 
 from ^arbitrary and unjust acts to fellow employees. I 
 have found that disputes once settled, even if one side 
 
78 LAW AND ORDER IN INDUSTRY 
 
 loses, are seldom causes of trouble. It is the unsettled 
 disputes that are dangerous. This failure of adjustment 
 is largely due to the lack of means for determining what 
 is right or wrong, the lack of a common code, and the 
 absence of a disinterested authority whose judgment is 
 respected by both sides. 
 
 We did not realize, and we believe the majority of 
 employers do not yet realize, the extent to which the 
 attitude and conduct of their organized employees reflect 
 their own policies and conduct. 
 
 In our own business, employing thousands of persons, 
 some of them newly arrived immigrants, many of them 
 in opposition to the wage system and hostile to em- 
 ployers as a class, we have observed astonishing changes 
 in their attitude during the four years under the influence 
 of our labor arrangement. They have come to feel that 
 they can rely upon promises made by the company, 
 and that justice will be done them by a system in which 
 they themselves have a voice; and as a result, they are 
 proud of their own honor, careful of their promises, and 
 equally eager for justice to all.* 
 
 I heard this gentleman testify during the winter of 
 1914 before the United States Commission on Industrial 
 Relations, and I heard him say then that he would not 
 care to go back to the old system for any price. I know 
 from personal inquiry and study of the reports of the 
 firm that there is increased efl&ciency and productivity, 
 higher wages and larger dividends. From both employer 
 and union leader I have learned that the system works 
 
 * George Creel: A Way to Industrial Peace, The Century, July, 
 
 1915, p. 440. 
 
A SIDELIGHT 79 
 
 to the complete satisfaction of both. The representa- 
 tive of the union in Chicago was, in 1914, called to New 
 York to take charge for the Cloakmakers' Union of 
 their interests, and would have continued, if he had 
 not been called away to become the leader of the Amal- 
 gamated Clothing Workers of America, a new and in- 
 surgent organization with a membership close to one 
 hundred thousand, made up of clothing workers in the 
 men's line. In 1913, when I intimated to the head of 
 the firm that the Chicago union leader with whom he 
 dealt might be called to New York to take active part 
 in the cloak situation, he told me that he would regard 
 it as a distinct loss to Chicago, for, as he put it, it was 
 due to the xmion leader's common sense and fair way of 
 handling matters that the collective agreement had 
 worked so well. He modestly refrained from mentioning 
 his own part. Notwithstanding this approval on the 
 part of the employer, this yoimg leader retained the sup- 
 port and confidence of his own constituents, and, more- 
 over, as I have stated, was later elected to the highest 
 position to which they could advance him.* 
 
 The principles underlying the Chicago experience 
 were the same as those \mderlying the New York ex- 
 perience. The machinery in each case was substantially 
 the same. A Trade Board (Board of Grievances), a 
 Board of Arbitration, and the dual clerk method of 
 * Sidney Hillman. 
 
8o LAW AND ORDER IN INDUSTRY 
 
 investigation and conciliation; the preferential union 
 shop and joint working of union and employer, with an 
 agreement to substitute the methods of reason and or- 
 der for the strike and lockout. In the Chicago instance 
 we find the system working to the complete satisfaction 
 of the employer, the union and the public. It is a busi- 
 ness as well as a social success. In New York it does 
 not achieve the same complete result. Why not? If 
 we find in the one case factors absent in the other, it 
 may give the clew to the completer explanation. 
 
 Observe that the Chicago firm had a monopoly of a 
 brand. Its name had been blazoned forth in magazine 
 and newspaper pages for over a decade. It had boldly 
 come to New York and challenged competition with 
 the best of its New York competitors upon their own 
 ground. Its brand or trade-name had cost — I am sure — 
 at least a million dollars of advertising. It had keen 
 competition, to be sure, but in addition to its application 
 of modern methods of salesmanship to its business, it 
 had introduced efficiency methods into its factory. 
 
 Observe that it was one firm dealing with a union — 
 not two or three hundred different employers of varying 
 ideals, education and business training. The head of 
 the house and the imion leader dealing with each other 
 single-handed and when these two agree, the policy 
 settled; moreover, certain to be carried out; no short 
 circuiting and no crossing of wires. From the public 
 
A SIDELIGHT 8 1 
 
 Utterances of the head of the house we learn that he 
 began by distrusting collective bargaining and ended, 
 by slow degrees, in a plan to strengthen the union. He 
 found it to the business interest of his firm to accord 
 the fullest cooperation to the union leader. Observe 
 that he must meet the keen competition not only of his 
 Chicago associates but the competition of New York, 
 Rochester and Baltimore. Yet he freely admits that 
 he finds it much easier to work alone than to work in 
 association with a group of his competitors. Observe, 
 also, that the competition is the competition of large 
 units, not small ones, where the strike is a more effective 
 weapon. Observe that the same xadon leader represented 
 the union in its deaUng with the competitor shops, and 
 the same standards are effectively maintained through- 
 out the entire city. 
 
 Note the type of men on both sides. The head of the 
 house, a man of education, of faith and of vision, and 
 open to reason; the union leader, a man of faith and of 
 vision, and open to reason, the latter outspoken ia his dis- 
 approval of violence and all other kinds of law breaking, 
 courting the approval of the disinterested public and 
 trusting entirely to the reasonableness of. the positions 
 he takes to win their way, never blatant, never threaten- 
 ing, never coercive, qtiietly persistent and absolutely 
 trustworthy in his statements and in his promises. 
 Though it is known throughout Chicago that he and the 
 
82 LAW AND ORDER IN INDUSTRY 
 
 head of the house are in frequent intimate consultation, 
 he retains, as we observe, the entire confidence of a union 
 made up of more than a dozen different nationalities — to 
 such an extent that later, with no effort on his part, in- 
 deed, without his preknowledge, he is chosen the national 
 leader of the tailors. He trusts the head of the house 
 and the head of the house trusts him. Each carries 
 out his promises to the other. The head of the house, 
 a man open to every new idea that can be tested by the 
 standards of common sense. There is no newspaper 
 agitation against the employer, no klassenkampf . There 
 is a joint effort, by methods of reason, to achieve a 
 common object: to improve the industry and thus im- 
 prove the condition of the workers. The Chicago ma- 
 chinery moves with the same smoothness as does the 
 machinery of the Joint Board of Sanitary Control in 
 New York. The joint work of the head of the house 
 and the union leader in Chicago bears striking resem- 
 blance to the work of the Director of the Sanitary Board 
 in New York. 
 
 Perhaps we have gone far enough to set down for sub- 
 sequent test at least three hypotheses consistent with 
 the facts in the Chicago situation: 
 
 I. Given institutions for preserving law and order in 
 industry and for improving the welfare of the industry, the 
 enterprise will prove valuable to employer and worker alike, 
 provided it is carried out in a spirit of mutual helpfulness 
 
A SIDELIGHT 83 
 
 and with a recognition of the business factors in the joint 
 problem. Given leaders on both sides who trust each other, 
 the underlying spirit of the institutions will find expres- 
 sion in day to day progress. 
 
 2. Let either side seek to impose its will upon the other 
 by coercion; let either side play unfair, and the institu- 
 tions — however well-planned — will crumble and fall. 
 
 3. The consumer is an important factor in the problem, 
 
CHAPTER VIII 
 
 THE NEW YORK CLOAK BUSINESS 
 
 The competition between the man's personally se- 
 lected tailor and the manufacturer of ready-to-wear 
 garments is less than fifty years old. The Civil War 
 created a demand for military garments in large quanti- 
 ties to be made up on short-time requisitions. This 
 stimulated cutting many garments with one cut of the 
 shears, and the experience led to the manufacture in 
 large quantities of cheap civilian clothes ready to "put 
 on your back," cheaper than you could buy them at 
 the tailor's. It is within the memory of the present gen- 
 eration that handsome college youths first appeared on 
 magazine pages wearing immaculately fitting dress suits, 
 or teiuiis coats, or warm ulsters, and bade us discharge 
 our tailors. From these advertisings grew the great 
 men's clothing manufacturers whose brands are now 
 known throughout the entire country, even abroad. 
 
 A half century ago a few enterprising clothing manu- 
 facturers conceived the notion of making women's 
 mantles or wraps; first a woman's simple cape, then a 
 tailor-like coat, then (when the shirt waist came in) a 
 woman's separate skirt. They succeeded in making 
 
 84 
 
THE NEW YORK CLOAK BUSINESS 85 
 
 the beginnings of an industry. With the introduction 
 of finer art in women's wear, there came into being and 
 grew with steam-engine rapidity the industry whose 
 workers now number over a hundred and fifty thousand 
 and whose product nms into millions annually. The 
 men who developed the men's clothing industry were 
 in most instances sons of immigrants. The men who 
 developed the women's clothing industry were also 
 sons of immigrants. But the workers in the shops were 
 for the most part immigrants, though in the early 
 period there were some Americans. There was quick 
 transition from worker to employer. Among the em- 
 ployers to-day, few can be found who did not in their 
 earlier days actually work in a factory. And many of 
 them — ^perhaps the hardest taskmasters — have a history 
 as strike leaders. In the early days, skill consisted in 
 making large quantities cheap. It was an asset to have 
 a large stock made up, ready for quick delivery. To- 
 day, with styles changing overnight, large stocks are 
 liabilities; the buyer waits till the last bell rings for the 
 season's opening, then orders a few of each design to 
 try out on the public, expecting re-orders to be filled 
 on telephone, but knowing they must be made up for 
 his order. To design all the varying morning, afternoon 
 and evening clothes that beckon from beautiful shop 
 windows or adorn handsome ladies in the Sunday sup- 
 plement requires a high degree of artistic skill, a ready 
 
86 LAW AND ORDER IN INDUSTRY 
 
 and constant touch with the centers of fashion, a knowl- 
 edge of textiles and their values, and an adniinistrative 
 ability of high order.* To lead in the industry in 19 lo 
 meant to have taste, skill, resourcefulness, imagination 
 and courage. On the other hand, there was not much 
 of that fine degree of factory efl&ciency nor that persist- 
 ent search for small economies that now characterizes 
 the successful factory of 191 5. 
 
 The industry is a style industry. It is also a seasonal 
 industry. This makes it part of the great unem- 
 ployment problem of the country, upon which latter 
 point we shall be called to dwell later. But because it 
 is a seasonal industry, there is feverish work for six 
 months and comparative idleness for the rest of the 
 year and obviously twelve months' overhead charges 
 for six months of operation. 
 
 The rents are enormously high. Factory must be 
 near salesroom. The successful manufacturer is at once 
 salesman, designer, factory manager, financier and in- 
 dustrial expert. All his departments, therefore, must 
 be within his immediate reach. High-priced lofts near 
 the city's hotel and railroad centers offer him his only 
 opportunity. 
 
 He must have shapely and attractive mannequins to 
 march about his salesroom and carry his creations be- 
 
 * See extract from Bulletin 147, U. S. Department of Labor, post, 
 pp. 131-2. 
 
THE NEW YORK CLOAK BUSINESS 87 
 
 witchingly. He must make frequent visits abroad, 
 studyiag the Parisian designs and purchasing high- 
 priced models. 
 
 All this takes head-work, nervous energy, and capi- 
 tal. According to all economic philosophy, the cloak 
 manufacturer is a capitalist, but he has more hours of 
 actual work to his daily stint than a day laborer, and 
 if nervous condition is a fair test of physical well-being, 
 he is Uttle better off than the cutter or presser in his 
 shop. He is bound to die young, because he bums him- 
 self up. The industry is far behind others of older 
 growth in these important respects: 
 
 It lacks sub-division of responsibility. Each business 
 is a one-man institution. It lacks ofl&ce and factory 
 eflSciency. And — ^prior to 1910 — ^it lacked organization. 
 It has now had only five years of training in ordinary 
 methods of trade organization. 
 
 There has been no effort to create brands, only one 
 or two houses, and those outside of New York, following 
 the example of the manufacturers of men's clothing. 
 
 The dealings between the manufacturers and the re- 
 tailers are full of all kinds of trade abuses: cancellation 
 of orders, unreasonable claims for damages, imjustified 
 discounts, etc. 
 
 On top of all these difficulties comes another: It is to be 
 noted that the law of copjaight has never yet been apphed 
 to fashion. The Paris designer, a student of the compre- 
 
88 LAW AND ORDER IN INDUSTRY 
 
 hensive foreign libraries, copies from the ancients. The 
 American designer copies from the Parisian. Just as the 
 lawyer freely quotes from the briefs written by his pred- 
 ecessors (without making any acknowledgment), so the 
 designer of women's wear freely copies without any by- 
 your-leave. This freedom of copying designs has gone 
 to such lengths within the past two decades that it is one 
 of the menacing evils of the industry. To amplify . . . 
 I have given my life to a study of design. ... I have 
 gone abroad and purchased the Parisian products of the 
 best fashion artists in the world. . . . My bill leaps into 
 the thousands of dollars, both for expenses abroad and 
 such models as I must purchase. ... I have employed 
 expensive artists here. ... As the result of their work 
 and mine and the labors of my high-priced sample-making 
 department, I have created something which I believe 
 will appeal to the American woman. . . . Yet I know 
 that within forty-eight hours after the first copy is 
 exhibited in a retail department store, it will be purchased 
 by one of my competitors and copied. I know more. . . . 
 I know that at the corner of Twenty-third Street and 
 Fifth Avenue they are selling in market sketches of such 
 of my designs as can be secretly captured. What pro- 
 tection have I? . . . My only escape is multiplicity and 
 rapidity of design at such frequent intervals that my com- 
 petitors lag behind me. 
 But all the garments made in the women's wear in- 
 
THE NEW YORK CLOAK BUSINESS 89 
 
 dustry are not made for ladies of fashion, you will say. 
 The answer is that all ladies are ladies of fashion. Ameri- 
 can women are reputed to be the best dressed women in 
 the world. The very large bulk that goes to make up 
 the millions recorded in the census tables is worn by 
 working girls and women. But their tastes, too, are 
 determined by the trend of fashion. The design of the 
 popular-priced garment follows closely in the wake of 
 the finer and more exclusive model. Before the strike of 
 1910 few of the manufacturers confined themselves whoUy 
 to the manufacture of exclusive designs. Nearly all 
 carried a supplemental line of popular-priced goods. 
 But in addition to the high-grade and popular-priced 
 garments, there were quantities and quantities of gar- 
 ments of very cheap quality made for consumption 
 throughout the country. The popular song in New York 
 City to-day will be heard in some Western town three 
 years from now. The sheet of music that now brings its 
 forty or fifty cents in New York will then be sold in the 
 Five and Ten Cent Store. The same spread of the new 
 design takes place with the popular woman's garment. 
 
 We are thrown, then, into an industry, broadly speak- 
 ing, where two elements control — the element of design 
 and the element of cost of production; one group of 
 manufacturers bent upon rapidly executing movements 
 in the direction of high-priced and excellently made 
 garments; another in the direction of producing large 
 
90 LAW AND ORDER IN INDUSTRY 
 
 quantities at the lowest possible cost, but none making 
 up stock in quantities in advance of sales. Neither of 
 these trade movements is independent of the other. 
 Each reacts upon the other. In a general way it can be 
 assumed that the cost of material is approximately 
 the same to the manufacturer of high-grade goods as 
 it is to the manufacturer of the popular-priced goods, 
 given the same quality and texture of material. But 
 there is a very marked divergence in overhead charges 
 and cost of labor. The old-fashioned sweatshop operator 
 could successfully compete against the uptown manu- 
 facturer, first, because his overhead charges were low- 
 far below the uptown man's, and secondly, because his 
 cost of labor was very much less. His hours of labor 
 were longer and the price of labor was lower. If he had a 
 small shop and fewer people to deal with, he had very 
 much less rent to pay, he made no trips abroad, he 
 bought no designs, employed no mannequins, and was 
 his own designer, salesman, and often his own cutter. 
 Indeed, the biography of many of the big manufacturers 
 of to-day begins as employers at the point where they 
 stopped cutting or pressing garments as employees of 
 others, became "contractors" for some larger employer, 
 then graduated into the employers' group, accumulated 
 capital out of small profits, lived on the most economical 
 scale, and captured the styles of others as freely as their 
 present competitors now capture theirs. 
 
THE NEW YORK CLOAK BUSINESS 91 
 
 The day of the specialty store, that is, the store where 
 nothing but women's garments is sold, in 1910 had not 
 yet arrived. The retail disposition of women's garments 
 was wholly in the hands of the department stores. The 
 manufacturer was to a great extent at the mercy of the 
 department store management, unless he could produce 
 something of such rare excellence and beauty that the 
 retailer was obliged to come to him. That the depart- 
 ment stores had much to do with the copying of styles 
 and the establishment of new manufacturers is not dis- 
 puted by those who know the trade. The finger is fre- 
 quently pointed at specific department store owners who 
 in the past made a specialty of buying fine garments 
 from leading manufacturers and then establishing others 
 in business, furnishing them with successful "numbers" 
 to make up for sale at "bargain-counter prices." 
 
 Into this industry came a union. Another nuisance 
 to add to the plagues of the manufacturer! Is there any 
 wonder that at first it was ignored, then fought, and only 
 with reluctance accepted as a factor? Then, if, through 
 the union, some order could be brought out of this chaos, 
 hailed with hope ! If all paid the same price for the same 
 labor, as all paid for the same merchandise, efficiency 
 as manufacturers would count for something against 
 unscrupulous competitors. If we could be sure that 
 everybody would observe fifty hours a week, pay double 
 pay for overtime, and close up on hohdays when we 
 
92 LAW AND ORDER IN INDUSTRY 
 
 did, we could readily raise the standards of working 
 conditions. In 1910, at the time of the Brandeis con- 
 ferences, this was the dominant note on the part of 
 the manufacturers. As stated in Chapter III, the 
 consideration for the great advances given to the work- 
 ers was the promise of a rational and peaceable method 
 for securing adjustment of future controversies and 
 the equal enforcement of standards and wage condi- 
 tions throughout the entire industry.* The standards 
 were established. Under the preferential union shop 
 provisions, the union secured almost complete control 
 of the workers. Theoretically, the law of the Protocol 
 was the law of the industry. In the Employers' Associa- 
 tion, if a member violated the Protocol, complaint was 
 made by the union and investigation followed. If he 
 underpaid the scale his own books would disclose the 
 evidence; there was no constitutional protection against 
 furnishing self-incriminating evidence. He was obliged 
 to comply with the rules. His first offense would be 
 followed by a warning; his second by a fine, and his 
 third by expulsion. In the non-Association shops the 
 imion was (theoretically) in complete control. These 
 were the shops of the closed shop agreements, where the 
 walking delegate was free to enter and where the right 
 to strike was unabridged. 
 In 191 2 something new happened. Manufacturers 
 * See page 39. 
 
THE NEW YORK CLOAK BUSINESS 93 
 
 began buying goods from manufacturers. Prior to 1912 a 
 "jobber," so called, was a man who bought job lots of 
 undisposed of garments, either directly from manufac- 
 turers or at auction sale, and sold them to retailers for 
 bargain-counter sales. In 1912, 1913, 1914, and 1915 
 jobbers became more mmierous and their annual business 
 mounted into the millions. Manufacturers who had been 
 in the industry for years, who had established splendid 
 organizations, were offered garments, complete and 
 ready for delivery, at prices so far below what they could 
 produce them for in their own shops that they opened 
 their eyes in amazement. This was particularly true of 
 the popular-priced garment. Steadily but certainly 
 the great volimie of work, the "bundles" as they are 
 called in the trade, began to go from the "inside" to 
 the "outside" shop. Why manufacture when you can 
 job? By 1913 the matter had become one of grave con- 
 cern both to the leaders of the union and to the lead- 
 ers of the manufacturers' association. It was a subject 
 of repeated conference and discussion. The remedy 
 proposed by the union was simple. It was to throw upon 
 the members of the employers' association the burden 
 of maintaining standards in all the shops whose merchan- 
 dise they bought. From the manufacturers' view-point 
 this meant an inevitable diminution in the membership 
 of the employers' association and an increase in the 
 number of jobbers. There was no law by which a man- 
 
94 LAW AND ORDER IN INDUSTRY 
 
 ufacturer could be compelled to remain a manufacturer 
 and a member of the association. What was the ex- 
 planation for this trade movement? It has been offered 
 by one of the manufacturers: 
 
 The cloak industry is not a "capitalistic" industry in 
 the usually accepted meaning of this term; only a few 
 hundred dollars are reqiured to organize a shop. A 
 worker or foreman, having saved the necessary amount, 
 engages in business, and makes up his staff of workers 
 from relatives or friends, immigrants who work under any 
 and all conditions, only too ready to accept employment 
 below union standards. This so-called "social" shop 
 the union is unable to control. The union allegiance in 
 such a shop is naturally weak, and the union officials 
 naturally prefer the easier work of enforcing conditions 
 in the larger shop units. In the "social" shop everything 
 is easy. The boss gets along with his people and there 
 are no "grievances." The union hears of no complaints 
 and on paper everything is lovely. The small shops, 
 therefore, increase in number; new employers spring 
 up over night, and the cost of manufacturing teUs the 
 tale to the association employer. The difference in cost of 
 labor cannot be accounted for by the difference in piece 
 prices. It is made up by the opportunity in the "social" 
 shop to work people longer hours, Saturday afternoons, 
 holidays, to cut by piece (instead of upon a week-work 
 basis), to press by piece, and to do many other things 
 forbidden by the Protocol, impossible in the association 
 shop, but quite practicable in the "social" shop.* 
 
 If the manufacturers blamed the union for these con- 
 * Letter of Max Meyer, New York Times, July 8, 1915. 
 
THE NEW YORK CLOAK BUSINESS 95 
 
 ditions, the union, with equal facility, blamed the man- 
 ufacturers. The reply to the manufacturer by the 
 imion was that the conditions existed because skilled 
 workers were discharged at the end of every season and 
 were thus induced to "borrow a little money from their 
 friends and relatives and start a small 'social' shop, or 
 some semblance to it" and that the larger manufacturers 
 "aid these small shops financially, purchase their product 
 or place with them direct orders for goods" and thus 
 "are themselves responsible for the cut- throat compe- 
 tition abounding in the industry." * It will be observed 
 that though each throws the responsibility upon the other, 
 both agree upon the fact of the existence of the evil and 
 the prime and pressing necessity for its elimination. (Ob- 
 viously, if both are so far agreed, why not a joint 
 remedy?) 
 
 It has frequently been assimied that the real cause of 
 the diflSculty is the absence of standards for piece rates.j 
 It is true that as to seventy-five per cent of the prices for 
 labor there is no standard, and each garment is separately 
 estimated upon before it can be put into operation. The 
 difficulties inherent in this problem for the shop can be 
 imagined when it is recalled that the success of the 
 high-grade shop is dependent upon the variety of styles it 
 
 * Sidelights on the Recent Controversy, The Ladies' Garment Worker, 
 September, igis, p. 8. 
 
 t See letter of George W. Alger, The New Republic, June 19, 1915, 
 p. 179. 
 
96 LAW AND ORDER IN INDUSTRY 
 
 creates. The price of labor is determined in each case 
 by a process of haggling between the representatives of 
 the shop on the so-called "price committee" and the 
 employer. So far as this fixing of piece rates is con- 
 cerned, it is hterally true that the employers deal with 
 two thousand unions instead of with one. In the lan- 
 guage of the President of the union: 
 
 Prices for one and the same garment varied in every 
 shop. The stronger party at the bargaining invariably 
 prevailed. Our Union controls some two thousand shops 
 in New York; yet it was not the Union that controlled 
 the prices but two thousand separate "unions," each 
 shop acting independently of the other. 
 
 This method had a doubly-unfortunate effect on the 
 condition of the trade.* 
 
 Though seventy-five per cent of the prices of labor are 
 fixed by this process of haggling, it does not foUow that 
 the piece price operation is seventy-five per cent of the 
 labor cost of the product. The difference between the 
 piece rate in one shop and the piece rate in another in 
 the cloak industry could not possibly make for the wide 
 divergence in the wholesale marketing price of the gar- 
 ment. It is the contention of manufacturers who have 
 studied the matter that the marked difference is due to 
 the freedom the non-Association employer enjoys from 
 the exacting conditions of the Protocol. On the other 
 
 * B. Schlesinger: Our Recent Struggle and Its Results, The Ladies' 
 Garment Worker, September, 1915, p. 16. 
 
THE NEW YORK CLOAK BUSINESS 97 
 
 hand, there is a very prevalent fear on the part of a con- 
 siderable number of manufacturers that, just as the 
 specialty shop has in many respects the advantage over 
 the high-priced department store, so the Uttle manu- 
 facturer has a natural advantage. As this chapter is 
 being written, a Philadelphia manufacturer is reported 
 to express the fear that "in five years the large cloak 
 and suit shops wiU have disappeared" and bases this 
 prediction upon his beUef that "the manufacturer, by 
 giving his work out, can have it done much cheaper than 
 he can do it himself with high-priced cutters and other 
 more expensive employees and heavier overhead ex- 
 penses, rent," etc. "The time is coming," he says, "when 
 they will cease manufacturing in their own plants, give 
 the work out, and become jobbers." * 
 
 In a study of the problem of standardizing piece 
 rates in the dress and waist industry,! now published 
 as Bulletin 146 of the United States Department of 
 Labor, Bureau of Labor Statistics, very much the same 
 problem is disclosed. The director of the investigation 
 states: 
 
 The chief difl&culty with a piece-rate schedule for the 
 making of garments is in finding a satisfactory basis that 
 will meet the varying conditions under which the prod- 
 
 * See Women's Wear, September 18, igis, under heading "Coats and 
 Suits." 
 t Made by Dr. N. I. Stone. 
 
98 LAW AND ORDER IN INDUSTRY 
 
 ucts of the garment industry are made. Styles of gar- 
 ments change very radically, and the amount of work 
 necessary to produce two garments selling at the same 
 price may differ one hundred per cent, and sometimes a 
 great deal more. In one case there will be comparatively 
 little labor and finer material, and more or better trim- 
 mings. In the other case there will be relatively more 
 labor with a consequent saving in the cost of material 
 and trimmings.* 
 
 Again: 
 
 A scale of rates paid in shops in which efficiency is the 
 keynote, in which the operator is able to work steadily 
 through the day without waste of time, with up-to-date 
 machinery and appliances, and amid sanitary surround- 
 ings, may be fully adequate to enable the workers to earn 
 good wages in that shop. The same schedule of piece 
 rates may prove totally inadequate for operators of equal 
 skill working in a shop where lack of system on the part 
 of the management results in frequent interruptions and 
 stoppages of work. . . .f 
 
 It may be that the small shop is economically the more 
 efficient tmit for the manufacture of the popular-priced 
 garment and that instead of its being regarded as an 
 outlaw to be dealt with simimarily, it should be legiti- 
 matized and regulated. 
 
 I am not here attempting a complete analysis of this 
 
 * Bulletin 146, Bureau of Labor Statistics, Department of Labor, 
 p. 193- 
 
 t Bulletin 146, p. 293. 
 
THE NEW YORK CLOAK BUSINESS 99 
 
 technical problem of the industry. It is a problem that 
 sooner or later must be thoroughly studied and solved. 
 I have presented it, however, with sufficient concreteness 
 to give to the student or the casual reader some picture 
 of the business difficulties inherent in the riuming of this 
 industry. Now, add to the business difficulties the high- 
 strung temperament of the workers on both sides — I 
 mean, of course, to include the "boss" as well as the 
 operators — and it becomes apparent that to bring law 
 and order into this industry was to make the attempt in 
 perhaps the most difficult and most handicapped of all 
 the young industries. Compare this industry with 
 industries where large plants are required, large invest- 
 ments of capital are necessary before there can be a 
 beginning. Take the steel, the coal, any of the mining 
 industries, for example. The problem is obviously much 
 simpler. 
 
 The Protocol undertook to better industrial conditions 
 by rational and peaceable methods. Upon the sanitary 
 side it succeeded. Upon the business side, while it did 
 not wholly fail, it did not meet the expectations of those 
 who framed it. The hope of the decent manufacturer 
 in 1910 that the Protocol would make the high-grade 
 manufacturer's position more certain has not yet ma- 
 tured. Under the rigorous enforcement of standards by 
 the Association of which he is a member, he is obliged 
 to observe standards while his competitor outside of the 
 
lOO LAW AND ORDER IN INDUSTRY 
 
 Association nins the risk only of the occasional strike. 
 What then? Shall we go back to the anarchy of 1909? 
 
 Beginning with 1913, as we shall see, the strain upon 
 the ofl&cers on both sides became so great that it broke 
 them down. 
 
CHAPTER rx 
 
 THE CRISIS OF 1913 
 
 The failure to bring about equality of standards in 
 the industry developed an anti-Protocol party within the 
 ranks of the manufacturers. Just as the business man 
 blames the national administration in power for bad 
 business conditions, so the business men iu the industry 
 cast upon the Protocol entire responsibility for aU their 
 business troubles. 
 
 In the imion ranks, a stronger anti-Protocol party 
 flourished. Remember, the Protocol had not promised 
 the miUemiium, but it had been very much over-praised. 
 Too much had been promised in advance and the trum- 
 pets of victory had sounded too long after the march was 
 over. The feeling that the employers had been whipped 
 into submission was freely encouraged. The Protocol 
 was in truth a successful outcome for the imion; but it 
 was far from a defeat for the employers. The policy 
 implicit in the Protocol, the spirit back of its institutions, 
 the peace methods — all these were without meaning, 
 indeed, had not been translated over to the great masses 
 of the working people. The process of educating them 
 to its true value had not yet been devised, and the hand- 
 
102 LAW AND ORDER IN INDUSTRY 
 
 ful of men in the union who understood its philosophy 
 felt genuinely that time and experience were the only 
 true processes of education. There were, in addition, 
 outside influences at work. 
 
 You cannot build up a working creed for ten years and 
 then suddenly throw it to the winds. The employers 
 were the enemies of the workers. Each belonged to a 
 separate class. There could be no peace between them. 
 There must be eternal warfare. The klassenkampf 
 was here, right here in the cloak industry. The Protocol? 
 Yes, it was a temporary truce to give us more power 
 with which ultimately to smite the employer and so 
 triumph over the whole capitalistic tribe. Our employers 
 are our masters, we are poor slaves. Does the Protocol 
 say you cannot strike? Then a plague upon it; you are 
 "slaves of the Protocol." 
 
 Two groups developed within the union itself; one, the 
 men who had spent their lives in sacrifice for the working 
 people and who regarded the Protocol as a great advance, 
 who knew from actual experience the inutility of the 
 strike and the ineffectiveness of violence, who, to meet 
 the pressing and obvious needs of to-day, studied ex- 
 isting business factors and tried to meet them squarely 
 and looked to a better order of society, yes, Socialism 
 itseK, as an ultimate but far distant goal to be reached 
 only after years of slow preparation in which the Pro- 
 tocol itself might play a part. These were the Con- 
 
THE CRISIS OF 1913 103 
 
 servatives. The other group were — shall we call them? — 
 the Impatients. Quite opposed to all the methods, the 
 institutions, the philosophy of the parliamentarians or 
 the jurists, they saw in all their schemes and plans noth- 
 ing but spiders' webs in which to ensnare them, and who, 
 genuinely enough, believed that the joinder of the leaders 
 of the union with the leaders of the employers' association 
 in a common task was, so far as the union leaders were 
 concerned, a traitorous surrender of their class and a 
 betrayal of vital principles. How can you dine with 
 your enemy? How make agreements with him that you 
 must keep? You are but postponing the Great Day of 
 our Triumph. You sold our precious birthright when you 
 bade us keep forever to a system of arbitration! By 
 such a process you have weakened the cause of labor. 
 
 So ran the song. The journal of the International 
 body was The Ladies' Garment Worker. The journal of 
 the Joint Board was the New Post. The Joint Board 
 represented the Cloakmakers' Union of New York City. 
 The International was the parent body for all the cloak- 
 makers' locals the country over. Between the editor of 
 the New Post (supported by the Joint Board) and the 
 editor of the Garment Worker developed a sharp journal- 
 istic controversy, with the advantage to the New Post 
 that the latter, a cheap weekly, reached practically 
 every member of the union, while the former, published 
 monthly, reached only a comparative few. Here are 
 
104 LAW AND ORDER IN INDUSTRY 
 
 illustrations of the manner of debate and the points in 
 controversy: In January, 1913, the Garment Worker 
 contained the following editorial (p. 13) : 
 
 A Word with Our " Irreconcilables" 
 
 We have had occasion more than once to refer to the 
 discontented and irreconcilable element in our organiza- 
 tion. Every organization has this element. By their 
 discontent with prevailing conditions they often do a 
 useful service. By clamoring for more than we have they 
 only illustrate a law of human progress. But at times 
 this element becomes dangerous, particularly when they 
 fall into the hands of demagogues, who in order to main- 
 tain their position in the organization, pander to their 
 prejudices, stir up discontent, and magnify it, and try to 
 force the organization to demand from the employer the 
 impossible. . . . 
 
 In the Garment Worker for November, 1912, under the 
 heading of "Everything or Nothing," after referring to 
 the difi&culties which the union had experienced in the 
 past in organizing the workers of the trade, ia that "our 
 people insisted upon either getting everything they 
 desired in a union shop, or no union shop at all," and 
 observing that "it is impossible to achieve all that we 
 want, the best we can get is some kind of a suitable 
 compromise for which our people would not stand," 
 the editor continues: "The result was that in the past 
 we got nothing." He finds that the success of the general 
 
THE CRISIS OF 1913 105 
 
 strike of 1910 came from the fact that "our people were 
 wise enough to accept what we considered to be a suit- 
 able compromise" and points out with pride that "after 
 two years the Organization is much stronger and on a 
 more soM footing than it was two years ago." He 
 then prophesies that "success in the future wiU largely 
 depend upon our ability to accept a part of what we 
 demand and keep on clamoring for more." The "old 
 story of either 'everything or nothing'" being revived, 
 he complains: "We have been told lately that unless the 
 imion will get all that is coming to us, . . . the union 
 wiU remain a 'comedy and a fraud.' ... we have 
 pointed out on several occasions the danger of urging . . . 
 what is physically impossible to get. It has been our weak- 
 ness in the past to promise our people more than it was 
 possible to get for them." He refers to the then pending 
 agitation against the Protocol as "a pernicious and dan- 
 gerous form of agitation and if successfid will lead to the 
 destruction of the Union. Especially in a trade like ours, 
 with such a huge immigration, with so many garment 
 workers outside of it, working under much inferior con- 
 ditions, . . . leakages of either one form or another" are 
 bound to occur "... to carry on an agitation amongst 
 our people, that unless we can stop all leakages the 
 union is worthless, is practically the worst thing which 
 can be done, especially when this agitation is carried on 
 by responsible officers of the imion," 
 
I06 LAW AND ORDER IN INDUSTRY 
 
 In reciting the history of this agitation in his report 
 to the International Ladies' Garment Workers' Union 
 in the Cleveland Convention, June, 1914, the President 
 said that "a crusade was started against the Proto- 
 col .. . and against those who ventured to hold that the 
 Protocol had brought to the cloakmakers improvements 
 and advantages. All sorts of grievances against the 
 Association were imearthed. Every petty case that a 
 business agent with common sense could easily settle was 
 made into a general issue." 
 
 As we shall see later, this agitation brought to a focus 
 in 1915 the so-called "discharge issue." The foresight of 
 the union President in issuing the warning is apparent 
 from the following quotation: 
 
 A hue and cry was raised that all active union mi6n 
 were being discharged, notwithstanding the evidetice 
 afforded by the records that in three years less than 
 five hundred employees had been discharged, and of 
 these a large number were reinstated. Such exaggerated 
 reports were persistently spread until belief in their 
 veracity became almost general.* 
 
 The description of the President of the attacks upon the 
 manufacturers in the official organ of the Jomt Board is 
 significant. 
 
 . . . the official organ of the Joint Board, on the one 
 
 * Report and Proceedings — ^Twelfth Convention of the International 
 Ladies' Garment Workers' Union, p. 16. 
 
THE CRISIS OF 1913 107 
 
 hand, attacked the manufacturers, and, on the other, 
 published Industrialist and Syndicalist articles, em- 
 phasizing the workers' abstract rights and declaring 
 them to be justified, even when they are glaringly un- 
 justified.* 
 
 He refers to the fact that this agitation had "inflamed the 
 minds of the cloakmakers, who for the last two years 
 have had bad seasons and very little work" and that 
 several times the ofl&cers of the International had brought 
 to the attention of the Joint Board "that it was not a 
 question of justice and rights in the abstract, but rather 
 one of possibility of achievement." He says: "being 
 irritable and disappointed by reason of troubles and 
 difl&culties for which the Union was not responsible, 
 the workers' minds were not open to logic and reason, 
 especially when the logic and reason came from the inter- 
 national officers, who are widely known for their con- 
 servatism and moderation." f 
 
 Here, then, we have conflict between the experienced 
 leaders who went through the strike of 1910 and the newer 
 element in the union, who were at once seeking to over- 
 throw the Conservatives and the Protocol. Contests 
 of this sort are usual in political affairs and are accepted 
 as part of the process of education by which men arrive 
 at soimd policies. But while this conflict of opinion was 
 
 * Report and Proceedings — Twelfth Convention of the International 
 Ladies' Garment Workers' Union, p. 16. 
 
I08 LAW AND ORDER IN INDUSTRY 
 
 raging within the union, the industry was suffering. 
 The Chief Clerk for the employers' association once made 
 up a chart which showed the direct effect upon the tem- 
 perature of the industry of this difficulty in the blood. 
 The more heated the debate, the more frequent the 
 shop strikes. In other words, the more articles were 
 written against the Protocol, read by the workers, the 
 greater the difficulty of preserving order in the in- 
 dustry. 
 
 By January, 1913, the fever reached its height. A 
 certain shop broke the law and went on strike. Upon 
 appeal to the Chief Clerk for the imion, the manufactur- 
 ers received no relief and when the Chief Clerk was in- 
 formed that an appeal would be made to the International, 
 he disputed the power of the national body to intervene. 
 In effect he said that the "Joint Board was the substance 
 of the union and the International the shadow." He 
 was not so far wrong as a statement of the fact, but as a 
 statement of the legal responsibility of the International 
 he was in error. By February, 1913, the Board of Arbitra- 
 tion had decided that the International was responsible 
 for the preservation of order in the industry and for the 
 observance of its contracts by the Joint Board. 
 
 In September, 1913, another strike occurred in an 
 Association shop. On appeal to the Chief Clerk no relief 
 was secured. Soon the strikers were found picketing the 
 shop, though the union had not authorized any strike. 
 
THE CRISIS OF 1913 109 
 
 The Chief Clerk for the union defended both the strike 
 and the picketing. Upon appeal to the International, 
 the International found itseK unable to abate the strike. 
 Again the Association appealed to the Board of Arbitra- 
 tion. That Board sat for two days, October 3d and 
 4th, 1913, reviewed the entire history of the transac- 
 tions during 1912 and 1913, rebuked the Chief Clerk of 
 the Joint Board for his conduct, rebuked the Interna- 
 tional officers for failing to intervene, made strong 
 admonition to both parties that law and order must be 
 maintained under the Protocol, and admonished the 
 union with reference to the articles that appeared at- 
 tacking the Protocol, that this kind of "miseducation" 
 must cease. After this utterance from the Board of 
 Arbitration the Association felt called upon, in a com- 
 munication to the union, to review the decision of the 
 Board made the previous February and to bring the 
 seriousness of the situation to the attention of the Inter- 
 national. In this commimication the Association said 
 
 The situation is a most critical one. The conditions 
 disclosed by the record presented to the Board of Arbi- 
 tration in February last have become more aggravated 
 during the past eight months. There has been a com- 
 plete breaking down of that relationship of "mutual 
 respect and confidence," which the Board of Arbitration 
 says is essential to the life of the Protocol, and there has 
 been not only a complete failure to educate the members 
 of your Union to an understanding of the difficulties of 
 
no LAW AND ORDER IN INDUSTRY 
 
 the problem presented, but, through the columns of the 
 Neiie Post and through the work of some of the represent- 
 atives of the Joint Board, there has been (as the Board 
 of Arbitration now finds) a campaign of "misedu cation." 
 
 We must now — after three years of experience with 
 the Protocol — call upon you for direct and specific an- 
 swers to the following questions: 
 
 First. Does the International Ladies' Garment Work- 
 ers' Union accept the interpretation of its relationship 
 to the Protocol as laid down by the Board of Arbitration? 
 
 Second. Does it accept the obligations imposed upon 
 the parties to the Protocol as laid down by the Board of 
 Arbitration specifically with reference to 
 
 (a) The conduct of the Grievance Board; 
 
 (b) The conduct of the representatives of the Union 
 who deal directly with the Association; 
 
 (c) The use of the columns of the Neue Post and other 
 organs reaching the members of the Union? 
 
 Third. Does the International accept the decision 
 made by the Board of Arbitration, that while the power 
 resides in either party to the Protocol to abrogate it, that 
 it does not he in either side to suspend its operations, and 
 that "picketing" and calling men "scabs" and "strike 
 breakers," and suffering local shop strikes, must cease, 
 and that the entire power of the Joint Board and the 
 International must be used to discipline the members 
 and prevent the recurrence of such situations? 
 
 Fourth. Has the International the power actually to 
 do the things it has undertaken to do? 
 
 Fifth. Is it wilhng, if it has the power? 
 
 Upon your answer to these questions depends, in our 
 judgment, the continuance of the Protocol as a working 
 instrmnent between us. 
 
 As this letter is sent by direction of the Executive 
 
THE CRISIS OF 1913 HI 
 
 Committee of the Association, we must ask you for an 
 answer that is approved by the General Executive Board 
 of your organization. 
 
 At this time the Association had no idea of breaking off 
 relations with the union. It sought merely to secure the 
 carrying on of the institutions created by the Protocol. 
 The communication, however, was seized upon by the 
 then Chief Clerk of the union and his adherents as the 
 basis for further agitation against the Protocol. The en- 
 tire anti-Protocol sentiment in the luiion rallied about 
 the Chief Clerk as its leader, imtil, on the i6th of 
 December, 1913, the Association was obliged to write the 
 union: 
 
 We are informed that Dr. Hourwich is to continue to 
 represent the Joint Board in their dealings with our 
 Association under the Protocol. We regret to be obliged 
 to ask you to designate someone else with whom we may 
 have ofl&cial relations. Dr. Hourwich has publicly 
 charged our Association with having offered him an 
 inducement to work for the Association; has publicly 
 charged us with having connived to warp the statistical 
 inquiry of the Board of Arbitration; has attacked the 
 good faith of our Association, the Board of Arbitration, 
 the Board of Grievances, your International Officers and 
 your Joint Board, and stated in the presence of the 
 Board of Arbitration that, in view of its recent decisions, 
 he could not work in harmony either with the Board or 
 with us. We recognize fully the right of each party to the 
 Protocol freely to select its own agents, but since it is of 
 the essence of the Protocol that there shall be mutual 
 
112 LAW AND ORDER IN INDUSTRY 
 
 respect in the daily dealings of the parties, it is obvious 
 that neither party can have deahngs with a representa- 
 tive of the other, whose deliberate purpose it is to create 
 distrust and ultimately destroy the Protocol. Since we 
 desire fully to perform our part of the duty of upholding 
 the Protocol and abiding by the decisions of the Board 
 of Arbitration, we prefer not to be obHged to deal with 
 one who has both insulted us and assumed an attitude of 
 dictatorship in the industry. 
 
 We regret exceedingly, therefore, to be obliged to ask 
 you to designate someone with whom we may continue 
 business relations, so that the daUy business may be con- 
 ducted without friction. 
 
 Copies of this communication having been sent to the 
 International Union, it sought the advice of leading 
 trades unionists of the entire country, including Samuel 
 Gompers and John Mitchell, and after careful review of 
 the entire situation they advised the International Union 
 to withdraw its guarantee of the Protocol imless the local 
 board removed the then Chief Clerk. 
 
 On the 7th of January, 1914, the International ofl&cers 
 wrote the manufacturers as follows, in response to their 
 demand that the Protocol be enforced: 
 
 . . . you are well acquainted with our opinion as to 
 the fitness of Dr. Hourwich as mediator and concilia- 
 tor. . . . 
 
 With our best intentions to continue the Protocol, we 
 must admit that at this time we are powerless to take a 
 hand in this controversy. . . . 
 
THE CRISIS OF 1913 1 13 
 
 To this the Association replied: 
 
 The Clerks of the Board of Grievances are, as you 
 know, officers of the Board of Grievances, who must 
 follow and obey decisions of the Board of Arbitration, 
 who must be mediators and conciliators, and must, of 
 necessity, work together. It seems to us, not as a matter 
 of personality, but as a matter of principle involving the 
 very life of the Protocol, that either side has the right to 
 call the attention of the other to the actual fact that one 
 of the Clerks is an impossible person ia the situation. 
 
 Under the advice of Messrs. Gompers, Mitchell and 
 other leading trade unionists, the General Executive 
 Board of the International adopted a resolution recogniz- 
 ing the decision of the Board of Arbitration of the pre- 
 vious February to the effect that the International 
 was guarantor for the Joint Board in its dealings with 
 the manufacturers' association, and that under the de- 
 cision of the Board of Arbitration of October the guar- 
 antee impUed joint responsibility and joint cooperation 
 of the oflScers of the International Union with repre- 
 sentatives of the Joint Board in carrjdng out the provi- 
 sions of the Protocol and 
 
 Whereas, The present Chief Clerk, Dr. Hourwich, 
 who since he attached his signature to this arrangement 
 made by the Joint Board of Arbitration has persistently 
 and systematically attacked the policies of the Interna- 
 tional Union and openly denounced its officers as the 
 agents of the Manufacturers' Association and has in 
 
114 LAW AND ORDER IN INDUSTRY 
 
 every way tried to discredit them before our members and 
 thus brought about a condition of affairs whereby he has 
 made it impossible for the International officers to work 
 in cooperation and harmony with him; and 
 
 Whereas, His poKcies are radically and fundamentally 
 opposed to the policies and methods heretofore pursued 
 by the International officers; and 
 
 Whereas, It is the firm belief of the G. E. B. that the 
 methods pursued by Dr. Hourwich are detrimental to the 
 best interests of the members of our organization; there- 
 fore, be it 
 
 Resolved, That the Joint Board of the Cloak and 
 Skirt Makers' Unions be informed that under the clerk- 
 ship and guidance of Dr. Hourwich the International 
 Union cannot remain the guarantor for the Protocol. 
 
 The adoption of these resolutions for the time being only 
 increased the storm. It hailed epithets and rained 
 slander. The East Side press was in all the glory of a 
 strike campaign, though no strike had actually been 
 called. One daily set itself out to discredit another. 
 Through it aU the learned doctor's controversial skiU 
 was the wonder of the day. He was the natural hero of 
 the irreconcilables. He laid the President of the Inter- 
 national low, he laid its Secretary low, he drove out the 
 lawyer for the International. These were the three men 
 who in 1910 were hailed as demi-gods by the cloakmakers 
 and carried upon their shoulders in triumph. 
 
 The Federal Commission on Industrial Relations, 
 studying collective bargaining in practice, came to the 
 
THE CRISIS OF 1913 115 
 
 city and held public hearings in the City Hall, and came 
 to the conclusion that the Protocol had brought great 
 good to the industry. For weeks the industry was on the 
 verge of a strike. Everyone interested trembled lest 
 1910 be repeated and there be a relapse into anarchy. 
 The industry lay like a sick patient tossing about, while 
 the doctors disputed and argued. Finally, the Board of 
 Arbitration held a session (January 11, 1914). After 
 hearing and conferring with the three parties — the 
 manufacturers, the Joint Board, and the International 
 officers — and having been advised by the manufacturers 
 that they intended to give notice of the termination of 
 the Protocol, the Board publicly announced that the 
 Chief Clerk could avert "the certainty of great suffering 
 for tens of thousands of men, women and children" by 
 withdrawing from the situation. Its recommendation of 
 a truce of eight days was accepted by both parties, and 
 before the eight days had expired the Chief Clerk 
 resigned. 
 
 Six months later, at the Convention in Cleveland of 
 the International Union, where every local in the coun- 
 try was represented, the matter was thoroughly thrashed 
 out. The International officers were fully supported in 
 their action by the vote of the convention. The resolu- 
 tions are important: 
 
 Whereas, Dr. Hourwich together with some irre- 
 sponsible persons carried on an agitation against the 
 
Il6 LAW AND ORDER IN INDUSTRY 
 
 ofl&cers of the International Union, accusing them of 
 treason and of being agents of the Cloak Manufacturers' 
 Association, because at their Quarterly Meeting held on 
 December 20, 1913, they decided to inform the Joint 
 Board, its afl&liated locals and its members that "under 
 the clerkship and guidance of Dr. Hourwich, the Inter- 
 national Union cannot remain the guarantor for the 
 Protocol" and because of this decision Dr. Hourwich 
 and the said persons accused the International ofl&cers of 
 having helped the manufacturers in an alleged attempt 
 to dictate to the Union who its representatives shall be, 
 and 
 
 Whereas, From the evidence and statements pre- 
 sented at this convention the delegates are convinced 
 that Dr. Hourwich has for some time prior to the date 
 of the receipt of the said letter done everything in his 
 power to provoke strife, dissension and ill wiU both 
 inside the organization, between the members and the 
 oflScers, as well as outside the organization, between the 
 Manufacturers' Association and the Union and that he 
 further tried to induce the Cloak Makers' Union of 
 New York to abrogate the Protocol and, after having 
 utterly failed in his attempts, he assmned an attitude 
 and pursued a pohcy in his dealings with the manufac- 
 turers, calculated to provoke them and compel them to 
 take the initiative to abrogate the Protocol and has 
 raised the fictitious issue that the manufacturers' associa- 
 tion tried to dictate to the Union who its representatives 
 shall be and thereby brought about a condition of affairs 
 which made a conflict between the Union and the Associa- 
 tion almost inevitable, and 
 
 Whereas, It is the judgment of the delegates to this 
 convention that to undertake a fight with employers 
 because of Dr. Hourwich would have been a senseless act 
 
THE CRISIS OF 1913 1 17 
 
 of folly and a crime against the interest and welfare of 
 the workers engaged in the cloak trade in particular and 
 against the International Union in general, therefore be it 
 Resolved, That the delegates to this Twelfth Conven- 
 tion go on record as expressing their approval of the 
 action of the General Executive Board for having through 
 their efforts succeeded in restraining and preventing the 
 Cloak and Skirt Makers' Unions from entering into an 
 unnecessary, unwarranted and useless fight with the 
 Manufacturers' Protective Association and congratulates 
 the entire membership because the International ofl&cers 
 were able to maintain the integrity of the International 
 Union so that it can carry on in the future the work of 
 solidifying the rank and file of our workers and thereby 
 promote their interest under the authority of the Inter- 
 national Ladies' Garment Workers' Union.* 
 
 In addition, the convention went on record as deciding 
 unanimously: 
 
 That until some other form of agreement has been 
 presented to us which will better safeguard and protect 
 the interests and welfare of our members we are in favor 
 of the Protocol agreement.! 
 
 Sufficient time has elapsed to review the crisis of 1913 
 and to make some deductions therefrom in the light of 
 the experience. The Chief Clerk of the union, around 
 whom centered the storm, was a man of fine intellect, 
 
 * Report and Proceedings, Twelfth Convention of the International 
 Ladies' Garment Workers' Union, p. 204. 
 t Id., p. 182. 
 
Il8 LAW AND ORDER IN INDUSTRY 
 
 broad culture, a lawyer, a statistician, an economist, a 
 journaKst of international repute, and it was common 
 knowledge that he did not in fact accept the philosophy 
 \ of the anti-Protocolists. He beheved in the Protocol and 
 believed in it as an instrument for preserving law and 
 order. He conceived of it, however, as substituting in 
 place of the strike and lockout a system of industrial 
 courts in which all controversial matters could be dis- 
 posed of, with a lawyer fighting the cause of principals, 
 case by case. He believed that the existing institutions 
 were inadequate. The Board of Arbitration, as he saw 
 it, had failed fully to supply a medium for litigation. 
 The Board of Grievances, evenly balanced in nimiber, 
 was to his mind always subject to deadlock and con- 
 sequently could not function properly, and in the imme- 
 diate contact between the two Chief Clerks he saw not 
 an opportunity for the exercise of great diplomacy and 
 conciliation, but a matching of wit and skill and the 
 pitting of the power of one organization against the 
 other. He was, indeed, ready to join in revising the 
 constitution of the industry by installing what to him 
 seemed to be a more complete system of judicature. 
 The real agitation against the Protocol had begun long 
 before his arrival in New York. He became, however, 
 the natural leader of the anti-Protocolists in the union. 
 In emphasizing the judicature points in the Protocol 
 problem, he made the mistake that others have made of 
 
THE CRISIS OF 1913 119 
 
 ignoring the fundamental business factors in the indus- 
 try, and in addition accepted the theory of continuous f 
 antagonism of interest between the workers and the 
 manufacturers as a working hypothesis. In endeavoring 
 to make the juridical and parliamentary methods cover 
 the daily nmning of factories, he had failed to learn the 
 lessons which the breaking down of such systems in 
 political life, when applied to similar problems, had 
 taught both laymen and lawyers. Of course, in his 1 
 theory of the justifiable shop strike and picketing he 
 was utterly unsound, and when this theory came up for 
 analytical examination by the Board of Arbitration it 
 was easily shattered. Indeed, the basis for the Board's 
 decision on this phase of Protocol law was to be found 
 in the precedent established by the doctor himself. 
 Upon a previous occasion when the shop strike fever 
 broke and abatement of the strikes could not be readily 
 secured, after repeated demands, the President of the 
 Employers' Association issued an order to the clerks of 
 the Association that none of them should attend to any 
 grievances until the shop strikes were abated. The 
 Chief Clerk for the union (the doctor hunseh) charged 
 the President with having taken the law in his own 
 hands, and since the Protocol was to establish law and 
 order this was an offense. The Board of Arbitration 
 sustained the doctor and rebuked the President of the 
 Employers' Association. In substance they said: "You 
 
120 LAW AND ORDER IN INDUSTRY 
 
 believed you were justified and we can understand how 
 you were aggravated, but we must emphasize that so 
 I long as the Protocol is in existence neither side must 
 I take the law into its own hands. While either party may 
 terminate the Protocol at any time, until it is terminated 
 it is the law of the industry and neither party may sus- 
 pend its operation." This point scored by the doctor 
 against the employers was turned upon him when, in 
 effect, he suspended the Protocol in suffering and de- 
 fending shop strikes. 
 
 Comparing now the trying experiences of 19 13 with 
 the two other experiences we have studied — the Board of 
 Sanitary Control and the Chicago clothing situation — we 
 observe the following facts in the New York experience: 
 \ The absence of uniform, rational, cooperative move- 
 ment — the very essence of success in the Board of 
 Sanitary Control and Chicago experiences. We find a 
 failure to take complete measure of the business factors 
 r in the industry. We find a definite and organized oppo- 
 \ sition within the ranks of one of the parties against the 
 I scheme itself. We find that though the leaders of the 
 International have profited by experience, their lessons 
 had not yet simk into the minds of their constituents. 
 \ There had been a complete failure to educate the workers 
 to the meaning of the Protocol, and as a final result the 
 officers of experience, indeed, the men who had brought 
 about the Protocol in 1910, were overthrown. 
 
THE CRISIS OF 1913 12 1 
 
 We may say, upon the basis of this study, that Hy- 
 potheses I and II which we suggested in Chapter VII 
 are fully sustained by the New York experience. 
 
 On the other hand, when we examine with care the 
 proceedings of the International Convention in the 
 succeeding June, we find that after six months of re- 
 flection and discussion the conservative representatives 
 of the union are sustained and the convention denounces 
 all those who were guilty of raising false issues and who 
 sought "to provoke them (the manufacturers) ... to 
 abrogate the Protocol." There is progress toward an 
 understanding and realization of the value of the in- 
 stitutions, but a process of education fearfully expensive 
 to the industry itself. To destroy the tendency towards 
 Syndicalism in the industry brought the industry to the 
 very brink of a strike, resulted in eliminating from the 
 situation men who had enjoyed confidence as leaders of 
 the entire union, who themselves possessed a fund of 
 valuable practical knowledge and experience. Ap- 
 parently, the rule of progress is three steps forward, then 
 two back, and a fresh start all over again. The Board of 
 Arbitration wholly justifies itself as an existing institu- 
 tion. It focuses attention upon error, and though it is 
 without power to enforce its decisions, it remedies by 
 applying clear reason to confusion. Yet if there had 
 been no publicity, no intervention of national labor 
 leaders, no hearings before the Industrial Relations 
 
122 LAW AND ORDER IN INDUSTRY 
 
 Commission, the Board of Arbitration itseK would have, 
 fallen. The Protocol proves its tenacity in times of great 
 crises. As we shall see, though it was terminated in 191 5 
 when another crisis arose, it came into immediate being 
 again; and though the failures are known in more or less 
 complete detail to employers and local unions in Boston, 
 Philadelphia and Chicago, Protocol institutions are 
 estabhshed in these cities, the language of the instru- 
 ment itself is copied almost verbatim, and its plan is 
 carried over to four or five other branches of the needle 
 industries. Indeed, as this chapter is written,* Chicago 
 cloak manufacturers are following the example of New 
 York, and Boston is renewing its agreement, utilizing the 
 latest experience of its sister city in the East. 
 
 In short, when both are brought to the brink of dis- 
 ruption and are face to face with the possibility of rever- 
 sion to the anarchical conditions preceding 1910, they ac- 
 cept the principle that the methods of Law and Order are 
 after all best for securing Justice and Welfare. Between 
 crises, however, we find a lack of that fiber and dis- 
 cipline necessary to the daily observance of law and 
 order. There is no police department and no sheriff. 
 Public opinion comes into play only when there is an 
 acute situation. The lessons of self-government are 
 learned through suffering, and the training of the people 
 interested is at the expense of the industry itself. The 
 * September, 1915. 
 
THE CRISIS OF 1913 1 23 
 
 student of municipal reform — indeed, the student of 
 democratic institutions generally — will find in the fail- 
 ures of this industrial development much of similarity 
 to the failures of democratic government generally. 
 
CHAPTER X 
 
 I914 — THE COMMITTEE ON IMMEDIATE ACTION 
 
 On the union side the men who carried upon their 
 shoulders the heavy problems of the workers, gave their 
 entire time to the work. It was their business. On the 
 employers' side, however, the leaders were men whose 
 time was devoted primarily to the management of the 
 single-headed institutions described in Chapter VIII. 
 This voluntary contribution of service by employers 
 in an industry of such strain had its limitations. The 
 men who in 1910 were propelled forward by their vision 
 and faith, made unusual sacrifices. It could not last. 
 One of the expensive results of the crisis of 1913 was the 
 departing from activity on both sides of leaders who 
 had had experience in dealing with each other. With 
 these men went a fund of knowledge and a background 
 purchased at the expense of great energy. Human 
 memory is a slate on which the chalk marks rub out all 
 too easily; only those lessons engraved with hot and 
 sharp needles of suffering remain. New leaders bring 
 new vitality, and if they utilize and value the expe- 
 riences of their seniors in service and have some reverence 
 for the lessons of the past, they can do much to move 
 
 124 
 
1914— THE COMMITTEE ON IMMEDIATE ACTION 12$ 
 
 things forward; but if, with the enthusiasm of youth, 
 they throw overboard the accumulated experience and 
 wisdom of years and resolve to get all things new and 
 fresh for themselves, they will but make the age-old 
 blimder of Aladdin's wife. There is not much difference 
 in outward semblance between tablets of bicarbonate of 
 soda and bichloride of mercury. The inexperienced may 
 easily take one in place of the other. Why is education so 
 costly? Why do we not learn by others' experience? 
 Dr. Dewey, in "Schools of To-morrow," believes that 
 this is the only true process of education. "Learn by 
 doing." It is one of the striking features of the New 
 York experience that education on both sides is acquired 
 by the expensive repetition of failures. 
 
 Following the resignation of the doctor, the Board of 
 Arbitration, taking into account the feelings and senti- 
 ments on both sides, and the strain upon employers of 
 work upon the Board of Grievances, offered as an experi- 
 ment the device of the "Committee on Immediate] 
 Action." There had been much cry of deadlocks arising 
 from the evenly-balanced constituency of the Board of 
 Grievances, and though the fear proved, upon subse- 
 quent examination,* to be wholly unfounded, it did in 
 fact create distrust and seemed upon the surface to have 
 some basis. With some hesitancy and as an experiment, 
 
 * See Bulletin 144, Bureau of Labor Statistics, U. S. Department of 
 Labor. 
 
126 LAW AND ORDER IN INDUSTRY 
 
 the Board of Arbitration adopted the following rule under 
 which this new Protocol piece of machinery was created: 
 
 30. Committee on Immediate Action. If the chief 
 clerks shall, after due effort to conciliate, fail to agree in 
 any case arising under the Protocol, they shall, together 
 with a third impartial person (chosen hereunder by both 
 parties) constitute a committee on immediate action, 
 which committee shall decide all matters submitted by the 
 chief clerks, except such matters as involve Protocol law. 
 
 The committee on immediate action shall, in all in- 
 stances, aid in the work of mediating and conciliating and 
 in the enforcement of decisions made. 
 
 Either party may appeal to the board of arbitration, 
 direct from any award made by said committee on 
 immediate action, but the award shall stand pending the 
 determination of the appeal. 
 
 But the committee on immediate action shall in no 
 case take up the complaint of the workers wherein a 
 stoppage of work exists until those stopping work shall 
 have returned to work. 
 
 31. The parties shall immediately agree upon the 
 third impartial person provided for in the preceding rule. 
 In case the parties shall be unable to agree upon such 
 third impartial person, he shall be selected by a com- 
 mittee consisting of the following: 
 
 (a) The president of the American Federation of Labor. 
 
 (b) The head of the Pohtical Science Department of 
 Columbia University. 
 
 (c) The chairman of the Committee on Arbitration of 
 the Chamber of Commerce of the State of New York. 
 
 The person so selected shall receive adequate com- 
 pensation, to be borne equally by both parties. 
 
1914— THE COMMITTEE ON IMMEDIATE ACTION 127 
 
 32. Each of the parties shall designate its own chief 
 clerk, who shall have power to designate aj&rst_depiut^ I 
 Each chief clerk shall have power to request his first 
 deputy to act for him as a member of the committee on 
 immediate action, if circumstances prevent his personal 
 attendance.* 
 
 This machine worked as it was expected to work. 
 During the following year, through the work of the com- 
 mittee, ordinary situations were handled with expedition 
 and with good result, and to those fundamental issues 
 that had been latent in the situation for some time the 
 Committee on Immediate Action acted like a poultice 
 plaster — ^it brought the inflammation to the surface. 
 Whether this was good or bad or timely, remains to be 
 determined. Under the rule, though the committee is, 
 f'\ in theory, a trial board of three, two of the members are 
 frankly partisans; indeed, act at once as advocates and as 
 judges. In case of deadlock, therefore, the burden of 
 final decision falls upon the single chairman. It was 
 carefully provided that this committee had no power to 
 make Protocol law. Its power was limited to deciding 
 controverted questions of fact. It was during the exist- 
 ence of the Committee on Immediate Action that the 
 "discharge issue," so called, arose and brought about 
 the experiences of 1914 and 1915. These experiences 
 were pregnant with lessons for the participants. Perhaps 
 
 recital of them will help others. 
 
 * Proceedings of the Board of Arbitration, Jan. 24, 1914. 
 
CHAPTER XI 
 
 HIRING AND DISCHARGING 
 
 "Now I shall lose my job" was the first exclamation 
 from an imconscious workman carried out of a subway 
 cave-in to a neighboring place of relief. The impulse 
 to retain the place which provides a means of support is 
 an impulse strong enough to make reason and judgment 
 give way before it. For the man with wife and child 
 dependent upon his earnings to philosophize concerning 
 the alternate effectiveness of parUamentary and juridical 
 methods as compared with anarchy is diflSicult. The 
 burning thought in mind is "How shall my wife and 
 child be fed?" Contact with daily situations on the 
 part of the social reformer creates a natural impatience 
 with existing conditions. With more than enough to go 
 round in the world and with many overfed, starving 
 people are to be found wherever one turns. This impulse 
 for security of tenure took on acute form in the cloak 
 industry. Small wonder, when we bear in mind the 
 characteristic temper of the people engaged in it — great 
 ambition, nervous worry, and a keen desire for better 
 things generally. The impulse for security of tenure 
 is not limited to the day or week worker. We know 
 
 128 
 
HIRING AND DISCHARGING 129 
 
 perfectly well that it operates in everyone who works 
 and lives by his labor. The civil service employee, who 
 never feels certain that his salary will not, in the interest 
 of public economy, be cut or his position wholly abol- 
 ished; the doctor, the lawyer, the literary man whose 
 income is not within his control, dependent very con- 
 siderably on chance; and the minister, who never knows 
 when devotion to principle will find, in his expression of 
 views not entirely consistent with the notions of his 
 congregation, the necessity for decision between main- 
 taining self-respect and maintaining a position. Nor 
 will any but those ignorant of business conditions assume 
 that the average employer is free from the worry, where 
 entire savings are locked up in business at the risk of 
 financial panic, bank or market slump; and if for security 
 there be investment ia real estate or stock and bonds, let 
 those who know the effect of the present war upon both 
 income and values speak upon the precariousness of 
 returns from such holdings. The bankruptcy court tells 
 abundantiy the tale of the rich man grown poor over- 
 night, rarely by his own fault. The larger the business, 
 the greater the habilities and the greater the risk at 
 which the assets are held. Like the colleges, we should 
 all like to be amply endowed, for service free from 
 financial worry. 
 
 Uncertainty of income, insecurity of reward for 
 service and relative impermanence of employment is to 
 
I30 LAW AND ORDER IN INDUSTRY 
 
 those who are dependent upon their work for their 
 living, something always in front of the eyes. Yet as 
 industry is conducted to-day and likely to be conducted 
 for some time to come, security of tenure and certainty 
 of income must be for hundreds of thousands only a 
 distant aim. It is a rare enterprise which can fix def- 
 initely the number of people which it can employ from 
 year to year and provide continuous employment for 
 them. In an industry so seasonal in character as the 
 manufacture of women's wear, so fluctuating in the 
 demands, it is one of the cruel business factors that 
 large numbers of people must constantly be taken on 
 and laid off. No business in this industry could stand 
 the strain of supporting the peak-load for the entire 
 year. 
 
 But there is another phase of this unemployment 
 problem. Quite apart from the incidents of casuality of 
 employment due to the seasonal nature of the business is 
 the necessary unemployment arising from demands for 
 new and greater efl&ciency in the work. In the study 
 of the needs of the industry for better industrial train- 
 ing, the United States Department of Labor concludes: 
 "The industry faces the possibility of reaching the upper 
 limits of development at an early date unless a supply 
 of better-trained workers can be assured." * This con- 
 
 * Bulletin 147, Bureau of Labor Statistics, Department of Labor, 
 p. 181. 
 
HIRING AND DISCHARGING 131 
 
 elusion is so important that I have ventured to quote 
 it in full in a footnote.* 
 
 * What the industry needs is a new class of workers — designers, cut- 
 ters, tailors, etc. — who are able not only to adjust themselves to rapidly 
 changing styles and turn readily and skillfully from the construction 
 of one kind of garment to another, but also to originate and execute new 
 ideas. 
 
 A second and equally important need is for workers piossessing a higher 
 degree of artistic temperament and appreciation, since the possession of 
 the artistic quality of style means the difference between success and 
 failure. The decision as to the lines of a garment is too often left to 
 men who have no conception of the rules of design or the principles of 
 art; the responsibility for choosing and adapting color schemes is fre- 
 quently intrusted to those who lack even a rudimentary understanding 
 of color harmony; and the details of ornamentation are often worked 
 out with no more intelligence and esthetic appreciation than is required 
 to manipulate a patchwork puzzle. Too much reliance is placed on 
 rules of thimib and formulas whose meaning and derivation are quite 
 beyond the comprehension of those who resort to them. 
 
 The obvious remedy, and the only remedy, for these conditions is 
 more and better training for the workers. The requisite skill in work- 
 manship, artistic appreciation, and creative ability can be secured in 
 no other way. It is equally obvious that very little can be accomplished 
 in these directions by attempting to transform adult workers. Some- 
 thing can be done that is worth while, perhaps, but the hope of the in- 
 dustry is in the training of younger workers than those who constitute 
 the vast majority in this industry. An efiEort must be made to find all 
 those who are still young enough to be susceptible to the influence of 
 training and to concentrate attention upon them. 
 
 The industry has undergone a significant evolution during the past 
 10 or 15 years, because of the tremendous increase in the demand for 
 ready-made garments. The perfection of manufacturing processes, 
 the development of factory organization, and the economies of large scale 
 production have now made available for the great mass of the people 
 garments of quality and serviceability that 25 years ago were within 
 the reach of only the wealthy. It is very diflScult to realize the enor- 
 mous expansion in the volume of business that has taken place in recent 
 years. The ready-made garment made its first appeal to the wearer of 
 cheap clothing, and the product was inferior to that of the custom tailor 
 
y 
 
 132 LAW AND ORDER IN INDUSTRY 
 
 The demand of the industry for workers of a higher and 
 better training is one of its immediately crying needs, 
 and it is obvious that to meet this requirement there is 
 inevitable a constant elimination of lesser-trained for 
 better- trained workers. "Very Httle can be accomplished 
 in these directions by attempting to transform adult 
 workers" is the verdict of the expert for the government. 
 
 Now, turn to the other side. The imderlying feeling, 
 if not principle, of union organization is solidarity. Its 
 rallying cry is "All for one and one for aU." Through it 
 it has built up its membership. The very raison d'etre 
 of its existence is that it is organized for the protection 
 of even the poorest of its members. It must be against 
 
 both in materials and workmanship. With the development of the 
 industry, however, the manufacturer has not only improved his product 
 but he has steadily striven for higher and higher classes of customers. 
 Some of the best designers and mechanics in the business are now in 
 the employ of the better-grade cloak and suit manufacturers. The 
 product of some of these factories contains materials of as high quality 
 as the market affords, and the operatives who make the garments repre- 
 sent skill of as high grade as any at the command of the custom tailor. 
 Since the differences in quality of material and workmanship have been 
 so largely done away with, practically the only things that the custom 
 tailor can supply his patron that can not be had from the manufacturer 
 of ready-made garments are a certain exclusiveness and a kind of per- 
 sonal service. Even the advantage of exclusiveness is of short duration, 
 in many cases, for the enterprising designer readily and promptly copies 
 new ideas that give promise of becoming popular. 
 
 This invasion of the field of the mediimi and high-priced garment, 
 however, has created a real demand for workers with higher degrees of 
 skill, and more of them. The industry faces the possibility of reaching 
 the upper limits of development at an early date unless a supply of 
 better-trained workers can be assured. 
 
HIRING AND DISCHARGING 133 
 
 the creation of any "aristocracy" in the industry among 
 its members. This, though it accepts a minimum scale, 
 recognizes fully that higher-skilled workers will receive 
 a higher rate of pay, accepts a piece-rate basis in which 
 compensation is affected by differences in skill and 
 reward. Indeed, the Protocol freely recognized and 
 adopted this principle of discrimination among workers 
 and freedom of selection on the basis of skiU. Linked 
 in the same paragraph with the preferential imion 
 shop is the provision that "since there are differences 
 in degrees of skill among those employed in the trade, 
 employers shall have freedom of selection as between 
 one union man and another, and shall not be confined 
 to any list, nor bound to follow any prescribed order 
 whatever." 
 % In addition is the factor of shop discipline. Before 
 the days of the trades union, shop discipline was main- 
 tained through government by the employer. He was 
 the general of the army. His was the voice that decided. 
 The abuse of the power he held imperiously led ultimately 
 to the organization of the trades union. Suddenly he 
 finds confronting him a vigorous, militant organization 
 of working people. He cannot, in theory, question the 
 right of his workers to organize and deal with him col- 
 lectively. He cannot question the right of all the workers 
 in the industry to organize. He himself organizes with 
 other employers. He cannot question the right of these 
 
 < 
 
134 LAW AND ORDER IN INDUSTRY 
 
 organizations to work to raise the standards of living 
 conditions for the workers, and he must freely concede 
 the great good such organizations have done. But the 
 discipline of the factory must still be jnaintained. The 
 raising of standards and providing for machinery for 
 redressing grievances has not obviated the necessity 
 of esprit de corps in the factory. No factory can be run 
 y' without it. In the old days the employer got the dis- 
 cipline either through winning over the workers to a 
 sense of personal loyalty to him or by the sheer brutal 
 exercise of the power to discharge; but for the moment 
 the important fact to be considered is that the disci- 
 pline was secured. 
 
 Now arrives the union on the scene, organizes the 
 people in the shop, breaks down the shop feeling and sub- 
 stitutes an industrial feeling of comradeship, eliminates 
 the sense both of loyalty to and fear of the employer. 
 What is substituted in place of the older methods for 
 securing shop discipline? The discipline must be se- 
 cured and maintained. Acceptance of the principle of 
 collective bargaining does not imply the surrender by 
 the employer of the power to maintain discipline nor the 
 power to maintain efl&ciency. Though this may be mis- 
 understood by workers generally, and though they may 
 believe that through collective bargaining they can find 
 that security of tenure so much to be desired, the power 
 to maintain efficiency and discipline must still be left 
 
HIRING AND DISCHARGING 13S 
 
 with the employer. It is the checking of the abuse ofX 
 the power only that, in the present order of society, 
 unions may insist upon. The unemployment problem 
 is not a shop problem — ^it is a community problem. To 
 keep individual workers in any shop or even in any in- 
 dustry, will not solve the problem. 
 
CHAPTER XII 
 
 I914-I915. THE CLASH 
 
 In Chapter X we analyzed the opposing tendencies in 
 both directions. In the latter part of 1914, before these 
 tendencies came to a clash, in reviewing the institutions 
 of the Protocol and the prospects of the future, I said: 
 
 As one who has been on deck, may I suggest that the 
 great big problem of the hour is — How can the national 
 movement for efl&ciency and economy be united with the 
 national movement for democracy in industry? How 
 can the discipline and efl&ciency of the shop be main- 
 tained, yet the workers be granted a larger share in the 
 management of industry? No greater problem faces 
 this or any other country at the moment, though it may 
 be overshadowed for the time being by the smoke of the 
 battlefield and the thin, small voice "be hushed in the 
 noise of the drums." * 
 
 The government meteorological service watches the 
 development of storm centers and fixes with remarkably 
 definite accuracy the point and time of contact between 
 impending storms. So accurate is its information and 
 
 * National Sodety for the Promotion of Industrial Education, Bulletin 
 No. 20. Proceedings Eighth Annual Meeting, Richmond, Virginia, 
 December 9-12, 1914, p. 131. 
 
 136 
 
1914-1915. THE CLASH 137 
 
 forecast that sailors will not go out upon the Great Lakes 
 or the oceans when storm warnings are given. We need 
 a "storm service" for industrial difficulties. In 1914 
 storm signals were out in the cloak industry. 
 
 The chairman of the Committee on Immediate Action, 
 though successful in averting conflict in something like 
 ninety per cent of the cases, soon found himself in dif- 
 ficulty. His duty was to apply existing law to facts. 
 He did not find that in the "hire and discharge" issue 
 there was a law sufficiently explicit for him to apply. He 
 himself became convinced that the rule had not yet been 
 devised which he could apply to such cases. So far as the 
 law outside of the industry was concerned, as established 
 by the law courts, there was no doubt. A Kansas statute 
 made it illegal to discharge men for belonging to a union. 
 When its constitutionality was attacked, the United 
 States Supreme Court held that it was imconstitutional. 
 The basis of the prevailing opinion is that, since the 
 employee in the case was an employee hired "at will" 
 and therefore could himseK leave at any time, the em- 
 ployer was free to discharge him at any time; and since 
 the employer was free to discharge, he could discharge 
 for any or no reason, and therefore could discharge him 
 upon the ground that he belonged to a miion. "Yes," 
 held the minority, "where the hiring is at will neither 
 party is bound for any definite period and therefore may 
 terminate the relation at any time; but it does not follow 
 
138 LAW AND ORDER IN INDUSTRY 
 
 that the discharge may be based upon any reason. If 
 the discharge is because the worker belongs to the union, 
 it may be against the public interest, just as it may be 
 against the pubKc interest if he is discharged because he 
 belongs to the militia, and we carmot say that the de- 
 termination of what constitutes the public interest in 
 such directions is not for the State." The minority 
 judges said upon this score: 
 
 There is nothing in the statute now under considera- 
 tion which prevents an employer from discharging one 
 in his service at his will. The question now presented is. 
 May an employer, as a condition of present or future 
 employment, require an employee to agree that he will 
 not exercise the privilege of beconaing a member of a 
 labor union, should he see fit to do so? In my opinion, 
 the cases are entirely different, and the decision of the 
 questions controlled by different principles. The right 
 to join labor unions is undisputed, and has been the sub- 
 ject of frequent affirmation in judicial opinions. Acting 
 within their legal rights, such associations are as legiti- 
 mate as any organization of citizens formed to promote 
 their common interest. They are organized under the 
 laws of many states, by virtue of express statutes passed 
 for that purpose, and, being legal, and acting within 
 their constitutional rights, the right to join them, as 
 against coercive action to the contrary, may be the 
 legitimate subject of protection in the exercise of the 
 police authority of the states. This statute, passed in the 
 exercise of that particular authority called the police 
 power, the limitations of which no court has yet under- 
 taken precisely to define, has for its avowed purpose the 
 
1914-1915. THE CLASH 139 
 
 protection of the exercise of a legal right, by preventing 
 an employer from depriving the employee of it as a 
 condition of obtaining employment. I see no reason 
 why a state may not, if it chooses, protect this right, as 
 well as other legal rights. . . . 
 
 There is a real, and not a fanciful, distinction between 
 the exercise of the right to discharge at will and the 
 imposition of a reqmrement that the employee, as a 
 condition of employment, shall make a particular agree- 
 ment to forego a legal right. The agreement may be, or 
 may be declared to be, against public policy, although 
 the right of discharge remains. When a man is dis- 
 charged, the employer exercises his right to declare such 
 action necessary because of the exigencies of his business, 
 or as the result of his judgment for other reasons sufl&cient 
 to himself. When he makes a stipulation of the char- 
 acter here involved essential to future employment, he 
 is not exercising a right to discharge, and may not wish 
 to discharge the employee when, at a subsequent time, 
 the prohibited act is done. What is in fact accomplished, 
 is that the one engaging to work, who may wish to pre- 
 serve an independent right of action, as a condition of 
 employment, is coerced to the signing of such an agree- 
 ment against his will, perhaps impelled by the necessi- 
 ties of his situation. 
 
 The majority judges, quoting the opinion of Mr. Justice 
 Harlan in the Adair case (208 U. S. 161) said: 
 
 While, as already suggested, the right of liberty and 
 property guaranteed by the Constitution against dep- 
 rivation without due process of law is subject to such 
 reasonable restraints as the common good or the general 
 
I40 LAW AND ORDER IN INDUSTRY 
 
 welfare may require, it is not within the functions of 
 government — at least, in the absence of contract be- 
 tween the parties — to compel any person in the course of 
 his business and against his will to accept or retain the 
 personal services of another, or to compel any person, 
 against his will, to perform personal services for another. 
 The right of a person to sell his labor upon such terms as 
 he deems proper is, in its essence, the same as the right 
 of the purchaser of labor to prescribe the conditions upon 
 which he will accept such labor from the person offering 
 to sell it. So the right of the employee to quit the service 
 of the employer, for whatever reason, is the same as the 
 right of the employer, for whatever reason, to dispense 
 with the services of such employee. It was the legal 
 right of the defendant Adair — however unwise such a 
 course might have been — to discharge Coppage (the 
 employee in that case) because of his being a member of 
 a labor organization, as it was the legal right of Coppage, 
 if he saw fit to do so, — however unwise such a course on 
 his part might have been, — to quit the service in which 
 he was engaged, because the defendant employed some 
 persons who were not members of a labor organization. 
 In all such particulars the employer and the employee 
 have equality of right, and any legislation that disturbs 
 that equality is an arbitrary interference with the liberty 
 of contract, which no government can legally justify 
 in a free land.* 
 
 Thus we find judges of the highest court in the land imit- 
 ing in agreement that it is a corollary of the principle 
 of human liberty that where the worker is free to leave 
 at any time, the employer is equally free to let him go, 
 * Coppage II. Kansas, 236 U. S. i. 
 
1914-1915. THE CLASH 141 
 
 the exception of the minority judges being based solely 
 upon the ground that if the employer would keep the 
 worker but for the man's membership in the union, 
 there is imderlying this kind of discharge an infringement 
 of the liberty of the worker, in that he is prevented from 
 joining a union — thus the constitutional basis for legis- 
 lative enactment upon the subject. 
 
 In another case the union was sued for conspiracy by a 
 former member, claiming that he had been discharged 
 by reason of the request of the union. The decision of 
 the court in effect was a statement to the complainant 
 that since he was an employee at will and could leave at 
 any time, the employer could discharge him at any time. 
 "That he discharged you because the union requested 
 it gives you no cause of action. You never had a per- 
 manent right to your job; therefore, you could not lose 
 it." Thus the law of the courts is clear. The principle 
 of Uberty of contract is applied equally to employer and 
 to worker. "If you are free to go at any time, your 
 employer is free to let you go at any time." * 
 
 The Protocol did not change the "hiring at will" 
 relationship between individual employer and individual 
 worker. Except later by agreement in the specific 
 cases of a few week workers, there was no term of em- 
 
 * Any man, in the absence of a contract to work a definite time, is 
 held in Roddy a. United Mine Workers, 41 Okla. 621, 139 Pac. 126, 
 L. R. A. igis D, 789, to have a right to quit whenever he chooses, 
 for any reason satisfactory to him, or without any reason. 
 
142 LAW AND ORDER IN INDUSTRY 
 
 ployment, and it was the practice for workers to leave 
 even at the height of the season to seek new employ- 
 ment, if they could better their positions. While in 
 some small shops where the workers were relatives and 
 friends of the employer, it might be true that employees 
 continued during the slack season, playing cards or 
 otherwise amusing themselves club- fashion in the factory 
 while waiting for work, this was not true in the industry 
 generally. It was not practicable in plants of loo or 
 200 employees. 
 
 The chairman of the Committee on Immediate Action, 
 recognizing the gravity of this conlBict between both 
 parties to the Protocol, himself presented the issue to 
 the Board of Grievances for determination. In the fac- 
 tory of Nathan Schuss, the employer had laid off 52 
 men at the end of the season. He had had in his employ 
 a foreman who was about to go into partnership with 
 somebody else. This foreman had been with the con- 
 cern for twelve years. During the latter part of his 
 administration, the employer foimd that a large portion 
 of his product had been returned by customers as im- 
 perfectly made. In one instance an entire biU of $1,200.00 
 had been returned upon the ground of poor workman- 
 ship. In discharging the foreman, he discovered that a 
 very considerable number of men in the department were 
 either relatives or friends of the foreman. The foreman 
 having announced that he was going to begin his own 
 
1914-1915. THE CLASH 143 
 
 factory, the employer decided that he would reorganize 
 the department entirely. He claimed the right to dis- 
 charge such of his employees as he chose at the end of 
 the season and to reemploy such of them as he should 
 think proper, or to fail to reemploy such as he might 
 not wish to reemploy. The imion charged that this act 
 in itself constituted "a direct present violation of the 
 Protocol"; that after the worker was hired and retained, 
 after trial, he had a right to the position "imtil such time 
 as the employer remains in the same business, and the 
 employee is not (afi&rmatively) guilty of any misconduct, 
 and has not become incompetent to perform his work." 
 This situation having been presented to the impartial 
 chrirman, he certified "that the issues presented in 
 these cases are not the kind that were intended to be 
 passed on by him, that he is not clothed with adequate 
 power to decide them, and he shrinks from exercising a 
 prerogative not clearly conferred upon him." In sub- 
 mitting the problem to the Board of Grievances, the 
 chairman made the following suggestion: 
 
 The issues submitted herein relate primarily to the 
 division of power between the employers and their 
 association and the workers and their union. They 
 belong to the class of cases that are in the highest degree 
 provocative and calculated to promote strife. They 
 cannot be settled by either side forcing its own interest 
 to the disregard of the interest of the other. A true 
 solution is only possible if both interests are recognized 
 
144 LAW AND ORDER IN INDUSTRY 
 
 and their divergent lines are made to converge. This 
 can be better done by thinking than by fighting; by 
 ingenuity, by invention, by construction, rather than by 
 force. In the present instance, the interest of employers 
 seems to center on securing of mobility, economy, and 
 efficiency in the selection of their working force; while 
 that of the union centers around protection against 
 discrimination and loss of power. It does not appear that 
 these two interests are incompatible or irreconcilable, 
 and it is believed that an earnest effort to find a solution 
 in mutual good faith and good feeling may be expected to 
 give a working solution. 
 
 The parties deadlocked and the matter went to the Board 
 of Arbitration.* It was thrashed out in December, 1914, 
 before the full Board. In the course of the argument, 
 counsel for the union said: 
 
 In regard to retaining men, we absolutely militate 
 against the principle of recognizing merit as a ground for 
 retention, as a ground for preference over the man that 
 is less skilled, and we say this, that this is the principle 
 upon which our organization rests, and with which it will 
 have to stand or to fall, and that is the principle that the 
 organization is not here in order to allow the so-called 
 free play of nature or competitive forces, which will 
 pick out twenty thousand men out of fifty thousand 
 men, or women for that matter, and secure them con- 
 stant, permanent and lucrative employment and leave 
 the thirty thousand other men and women to smaller 
 remuneration during seasons, and to no earnings of any 
 kind, and starvation, after season, f 
 
 * Louis D. Brandeis, Hamilton Holt, William O. Thompson, 
 t Proceedings, Board of Arbitration, December 19, 1914, p. 84. 
 
1914-1915. THE CLASH 14S 
 
 Again: 
 
 I do not know whether the Board fully appreciates the 
 importance of these questions, and I want to impress 
 upon you that, as far as we are concerned, it is not 
 merely a question of substantial relief that we demand, 
 but for us it is, and let us be perfectly plain and frank 
 about it, a question of the existence or non-existence of 
 the Protocol and of our established relations with our 
 employers. . . . 
 
 In other words, as far as we are concerned, and I 
 cannot make it too plain, it is the question of the life or 
 death of the Protocol.* 
 
 This issue, thus forced to the front, was accepted in 
 the same seriousness by the manufacturers. Indeed, 
 as both sides saw it, the discharge issue meant, imsolved, 
 the life or death of the Protocol. The name "discharge 
 issue" was a misnomer. It implied that the employers 
 desired entire abandonment of the policy of redress of 
 grievances that had been in force for five years and that 
 they wished the free exercise of their legal rights to dis- 
 charge at will, without review. As matter of fact, they 
 were ready to review any discharge where a real griev- 
 ance existed or was asserted. The real issue was, What 
 is a grievance? At the time of signing the Protocol the 
 "grievances" in mind were those commonly accepted 
 as such by employers and employees generally. It was 
 
 * Proceedings, Board of Arbitration, December 19, 1914, pp. 107, 108, 
 
 1X0. 
 
146 LAW AND ORDER IN INDUSTRY 
 
 not suspected that in time the mere act of discharge in 
 itself would be regarded as a grievance. Quite apart 
 from the law of the situation, the termination at will of 
 an employment which has no time limit was not looked 
 upon as something morally wrong. The underlying 
 theory of the union's position in 1915 was, in truth, 
 that by virtue of retention for a period of more than 
 two weeks, the worker acquired a status in the shop. 
 
 Two of the investigators for the Federal Industrial 
 Relations Commission agree that in cases of strike the 
 workmen "feel that they have a property interest in 
 their jobs, and that other workmen who take their 
 places are fit subjects for abuse, ridicule and violence.* 
 "They want thp jobs which they think are theirs. In 
 order that they may get the jobs, it is necessary to pre- 
 vent others from taking them." f Again, "to the union 
 man, the union means something more than a machine 
 to maintain fair wages and working conditions. It means 
 an agency for securing employment, if employment is to 
 be had ia his particular craft. The union man pays 
 dues into his imion for protection." | "The aim of the 
 union is to have a monopoly of work in a particular 
 trade." § Now it was this precise issue that in the 
 
 * Report on the Colorado Strike, George P. West, p. 103; Report on 
 Bridge and Structural Ironworkers, Luke Grant, p. 109. 
 t Luke Grant: Id., pp. 109-110. 
 t Luke Grant: Id., p. 134. 
 § Luke Grant: Id., p. 135. 
 
1914-1915. THE CLASH 147 
 
 cloak industry was fought out in 1910 under the title of 
 "the closed ghop." It was precisely this monopoly that 
 the employers would not assent to. And if we refer back 
 {ante, p. 21) to the proffer of the "preferential union 
 shop" we will find that one of its essential elements was 
 that not only should the union be open to all workers in 
 the trade, but that the employer should have the utmost 
 "freedom of selection." In 1915, the issue, mark you, 
 was not over the substitution of a non-union man for a 
 union man, but the substitution of one union man for 
 another, or by reduction of staff the substitution of none 
 in place of the men laid off. This point of view of union 
 men is to be distinguished from the aim at security of 
 tenure discussed in Chapter XI. The latter is a common 
 and a justifiable aim, but it recognizes that so long as 
 industry is run by employers as administrators and the 
 administrative function requires for its exercise the 
 freedom to decide — the freedom to choose, a decision 
 made bona fide by the employer should not be reversed, 
 even if it result in misfortune to the worker. To turn 
 over to a tribunal general review of the exercise of 
 administrative power is to run industry by tribunals. 
 Some day we may be able to create a judicial system 
 adequate to review all administrative acts, but it is not 
 yet in sight. No tribunal could be invented to-day that 
 could function in such a capacity in a large industry. 
 If the employee had a status, it is clear that he could snap 
 
148 LAW AND ORDER IN INDUSTRY 
 
 his fingers at discipline and need not care about the 
 eflSciency of his work. And in an industry so complex, so 
 full of inherent difficulties as the cloak industry, so 
 utterly without tests of efficiency upon which judicial 
 review could be based, the policy contended for by the 
 union would have destroyed the industry. The em- 
 ployers so believed. They believed that so long as they 
 were charged with the duties of administrators, it was a 
 corollary of the principle of liberty that they should 
 have the necessary freedom to decide. They regarded it, 
 therefore, as much a matter of principle to them as their 
 fight in 1910 over the closed shop. On the other hand, it 
 was quite obvious that the union sentiment upon this 
 subject was so strong that no group of leaders could have 
 agreed upon modification of its position without losing 
 the confidence of the membership. To them also it was a 
 matter of principle. When counsel for the union said in 
 effect: "The imion is here to stand for all its members; 
 by this we stand or fall," he was expressing truly the 
 voice of the union. 
 
 Here, then, was conffict of principles, such conflict as 
 makes for war, international and civil. The North says, 
 "You may not treat men as property." The South says, 
 "We have done so under the Constitution; we shall con- 
 tinue to do so hereafter as matter of right." War re- 
 sults. One European nation says, "The self-interest of a 
 nation is higher than a treaty of neutrality." Another 
 
1914-1915. THE CLASH 149 
 
 says, "A treaty is a treaty, to be observed at any cost." 
 War results. In international relations our only estab- 
 lished method for deciding such conflicts of principle is 
 by war. In 191 5 the generally accepted method for 
 deciding similar conflicts in industry is by force. Says 
 the Erectors' Association, "We will not grant you the 
 closed shop." Says the union, "We must have it; it is 
 essential to our life." There being no other solution 
 apparent, there is war — ^murder, anarchy, culminating 
 finally in the dynamite outrages and the MacNamara 
 convictions. Say the Colorado operators, "We will not 
 deal with your union." Say the miners, "You must, for 
 it is our very life, social, political, industrial; aU depends 
 upon it." Then follows war, murder, the breaking down 
 of civil government, with its culmination in the Ludlow 
 killings. The world stands aghast, yet with more or 
 less complacency pays the price (as it is doing on the 
 battlefields of Europe) and accepts the solution of force 
 as the only way of "practical men." 
 
 To the student of judicature, it aU seems stupid, for 
 great moral issues are settled by debate both in courts of 
 law and in parliaments, and progress is made even 
 through error and failure. The rights of men are defined 
 by process of reasoning, decision, criticism, reversal, 
 decision. Take the whole present trend of the law on 
 social questions — how changed it is from what it was 
 half a century ago. Only a decade ago, the United 
 
ISO LAW AND ORDER IN INDUSTRY 
 
 States Supreme Court was criticised as the resting place 
 of old men of obsolete economic views; to-day its deci- 
 sions sustaining the "essential human rights" of men are 
 quoted by every social reformer. So to the lawyer, the 
 gravity of the issue does not make him despair of its 
 solution by the processes of reason, and he accepts 
 temporary defeat of the principle itself, for he knows that 
 in the end the right will triumph by this process. The 
 minority becomes the majority view sooner than the 
 pubhc suspects — if the minority view is the soimd one. 
 The recorded opinion of the minority judge is read and 
 re-read and when its truth becomes clear, spreads over 
 and conquers the field of error.* The same rule applies to 
 legislation. The protests of this year's minority are the 
 controlling view of next year's majority. 
 
 How can force accomplish an equivalent result? 
 The conflict of principles is not determined. Right does 
 not become right because superior force strengthens 
 wrong. It may be beaten down for the time being, but 
 "truth crushed to earth will rise again." So the conclu- 
 sion is inevitable that though "many instances might be 
 cited in the industrial world, where the use of physical 
 force has for a time won advantage for the side that has 
 used it. Such gains, however, are temporary and do not 
 make for permanent industrial peace. . . . Force may 
 subjugate one side or the other in an industrial dispute, 
 * See Abbot: "Justice and the Modem Lavyyer." 
 
1914-1915. THE CLASH 151 
 
 but it will not remove discontent. It will not establish 
 Justice. When one side is all-powerful and the other 
 side is subservient, there is sure to be injustice. Where 
 there is injustice, there wiU be discontent." * 
 
 The advocates of collective bargaining, in pressing 
 their method forward as the way to industrial peace, 
 fail, however, to make sufficient allowance for the fact 
 that latent in aU industrial situations are grave moral 
 issues still unsolved, — ^principles not yet dejBined; grave 
 issues like the ones dramatically arising in the cloak 
 industry in 1910, 1914 and 1915 and asserting them- 
 selves in the structural iron trades and in the Colorado 
 naines as in the cloak industry in New York. Moreover, 
 in industrial matters these moral issues are of the most 
 elementary nature; — ^we are yet in the kindergarten 
 stage of education upon this branch of our ethics. Mere 
 "bargaining" will not settle such matters; mere com- 
 promise, negotiation, mediation, conciliation. These 
 fail, as they did in 1910, 1914 and 1915 in the cloak in- 
 dustry, as they did in the structural iron and coal in- 
 dustries. They must fail. How can it be otherwise? 
 Shall either side sacrifice its convictions? The world's 
 charter of liberties is made up of the sacrifices for, not 
 of, convictions. It may be true that so far as political 
 liberty is concerned, revolution was necessary, and we 
 
 ♦Report on Bridge and Structural Ironworkers, by Luke Grant, 
 p. 139. 
 
1S2 LAW AND ORDER IN INDUSTRY 
 
 are to-day enjoying the fruits of the revolutionists' 
 sacrifices. But revolution in industry, as we have seen, 
 does not and cannot make for real progress, and if it 
 does not, who shaU say that either union or employers' 
 association, acting under joint agreement, shall surrender 
 convictions honestly believed in? Far better were it 
 that all Protocols — all trade agreements — should go 
 than that men shall consciously compromise what they 
 believe to be their principles. Shall, then, the alternative 
 be — for either side — Compromise of Principle or Con- 
 test of Force? 
 
CHAPTER XIII 
 
 1915. the boaed of arbitration, 
 reasonable"? 
 
 If "bargaining" fails, what then? Under the Protocol 
 both sides were committed to the submission to the 
 existing Board of Arbitration for judicial determination 
 of just such controversies as these. For nearly five years 
 this method had been employed successfully. The Board 
 had made all of its decisions unanimously and all of its 
 decisions had been accepted by both parties. The 
 serious action of the Board in January, 1914, in urging the 
 representative of the union to resign — ^probably one of 
 the most remarkable recommendations ever made in a 
 labor controversy by an impartial tribunal — ^was ac- 
 cepted by the union and, as we have seen, received ul- 
 timately the ofl&cial endorsement of the union convention. 
 The Board had never lacked courage in meeting issues 
 squarely, though it employed tact and diplomacy wher- 
 ever it could and sought always to conciliate rather than 
 to arbitrate. 
 
 The decision of the Board of Arbitration on the "dis- 
 charge" issue was handed down on the 21st of January, 
 1915. It is quoted in full as Appendix C. After review- 
 
 153 
 
154 LAW AND ORDER IN INDUSTRY 
 
 ing the history of the Protocol and the purposes under- 
 lying its making, the Board found that "of the essence 
 of its existence, must be a spirit of fairness" and that 
 it must be xmderstood "as a basis for any proper inter- 
 pretation of it and application of it that the parties 
 desire by its provisions to promote, foster and develop 
 square dealings in all of the relations of employer and 
 employee; . . . that unreasonable acts or demands are 
 not to be expected from either of the parties, and that 
 anything of that nature would be in violation of the funda- 
 mental purpose of the Protocol." That applying these 
 basic principles, "the spirit of fairness and the rule of 
 reason be used to determine whether or not an employee 
 should be discharged; that the right of determining this 
 must in the first instance rest with the employer, and 
 that any employee, deeming himself unjustly treated, 
 has a right to make his complaint and have his grievance 
 heard in the regular manner." The Board then decides 
 that in the hearing of discharge cases the parties ad- 
 ministering the Protocol are "to look into all the facts 
 and to apply the same standards for determining the 
 case, thus eliminating the burden of proof from all 
 consideration." The Board then said: "The power 
 of administration, discipline and discharge, vested in 
 the employer shall be exercised in a fair and reasonable 
 manner, and if the propriety of the action is questioned, 
 shall be subject to review." For the purpose of determin- 
 
THE BOARD OF ARBITRATION 155 
 
 ing what is "fair and reasonable" the Board said that 
 the spirit and purpose of the Protocol included the fol- 
 lowing: 
 
 First. To assist the employer in the peaceful and 
 uninterrupted operation of his factory, in establishing 
 and maintaining reasonable discipline, and in promoting 
 such economy and efl&ciency of production as may be 
 secured by cooperative effort. 
 
 Second. To assist the Union in estabHshing the 
 strength and efl&ciency of its organization, and raise the 
 standard throughout the trade, to the end that the 
 Union power may be adequate to carry the responsibili- 
 ties and perform the duties imposed upon it by the 
 Protocol, and to promote the cooperation and good will 
 between the Union and the Association, so essential to 
 the successful operation of the Protocol, and to the 
 solution of the problems of the industry. 
 
 Third. Subject to the foregoing provisions, to assist 
 the individual worker in obtaining such security and 
 continuity in his employment, such equity in the dis- 
 tribution of work and such fairness of general treatment 
 and of conditions as may be possible and practicable, 
 having regard to the unavoidable fluctuations and 
 exigencies of the work, and the imperfections and limita- 
 tions of ordinary human nature by which this enor- 
 mously difl&cult industry must be administered. 
 
 The Board then went on to discuss the fundamental 
 problems of the industry — the matters of standardiza- 
 tion of prices, the enforcement of standards throughout 
 the industry, and the need for devising ways and means 
 
IS6 LAW AND ORDER IN INDUSTRY 
 
 to release the energies and the time of those now engaged 
 in the disposition of individual grievances for attention 
 to the larger problems of the industry. 
 
 It will be observed that the Board said nothing about 
 the term of hiring except that the rights of the parties, 
 imless modified by the Protocol, remained as they were 
 before. The Board said: "It was not intended by the 
 Protocol to change the relation of the employer to the 
 employee, otherwise than as I (we) have stated and as is 
 expressly stated in the Protocol. In aU other respects 
 the legal rights were to remain what they had been 
 before." The Board, however, found that by signing 
 the Protocol, the union "relinquished its right to secure 
 by strike more than it was getting, and there was sub- 
 stituted for that relinquished power of strike, the powers 
 created under this agreement, which constitutes a govern- 
 ment to control the relations between employer and 
 employee"; and that the Protocol had substituted for 
 the strike as a means by which the union might enforce 
 "the fair, just and reasonable exercise by the employer 
 of his legal rights in regard to the administration of 
 business, and in regard to hiring and discharging," 
 the machinery for redressing grievances. 
 
 It will be seen that the Board does not sustain the 
 appeal of the union. It places its reliance upon the rule 
 of "fair and reasonable" applied to the facts of each 
 case as it arises, and gives to the union the right to re- 
 
THE BOARD OF ARBITRATION 157 
 
 view every case where it feels aggrieved. It did not order 
 the reinstatement of the Schuss workers. On the other 
 hand — as became clearer with the lapse of time — the 
 determination of what is "fair and reasonable" in the 
 circumstances of the case could only be made with a 
 clear, definite guiding principle as a base. With the 
 underlying clash of philosophies of employment in the 
 situation— the union fighting for one theory, the em- 
 ployers for another — the decision of the Board of Arbitra- 
 tion, as practically applied, meant inevitably a series of 
 litigated test cases, through which might be evolved a 
 guiding set of principles. The impartial chairman had 
 no power to make "Protocol Law": therefore he could 
 not begin the process of evolution. The decision of the 
 Board of Arbitration, as we shall see later, did actually 
 bring about further litigation. It came up for the con- 
 sideration of an entirely new tribunal — the Mayor's 
 Council of Concihation {post, Chapter XV). The crea- 
 tion of this Council and the circumstances leading up to 
 it make in themselves an instructive chapter. 
 
CHAPTER XIV 
 
 THE TERMINATION OF THE PROTOCOL 
 
 After the rendition of the decision of the Board of 
 Arbitration, its lack of conclusiveness as a ruling prec- 
 edent became more and more apparent as cases came 
 before the impartial chairman. Issues arose in four 
 distinct cases in which the union took the position that 
 "regular" employees had been, by the Board's decision, 
 granted substantial permanence of employment and the 
 right to retention during the slack season, and that all 
 who were primarily dependent upon the industry for 
 their earnings must be regarded as such "regular" em- 
 ployees. Another appeal was taken to the Board of 
 Arbitration; several sessions were held, and the Board 
 on the 5th of February, 1915, again reiterated the rule 
 of "fair and reasonable," directed that each question 
 should be taken up as a question of fact, and left the 
 parties with no more definite rule than it had annoimced 
 before. Later conferences of both parties with the Board 
 were pending when the crash came. 
 
 It is quite likely that in the course of time, by bringing 
 up case by case as a test, a code would have been de- 
 veloped, clearly defining the rights of the parties. But 
 
 is8 
 
THE TERMINATION OF THE PROTOCOL 159 
 
 the repeated litigations, coupled with bad business 
 conditions generally and an increasing feeling on the 
 part of the members of the manufacturers' association 
 that they were being penalized and that the industry 
 was being treated as an experiment station for society 
 generally, instead of as a business, resulted this time in 
 the creation of a strong anti-Protocol party in the man- 
 ufacturers' group. Other causes contributed. There 
 was in existence another manufacturers' association 
 with which the union sought an agreement. This action 
 the manufacturers believed was not in consonance with 
 the spirit of the Protocol. After the ist of January, 1915, 
 there was enough tinder in the situation for a single 
 spark to start a conflagration. 
 
 On the third of May a stoppage of work occurred in 
 one of the shops of the Association. (This was while 
 the Board of Arbitration was still wrestling with the 
 problem of hiring and discharge.) The usual complaint 
 was sent to the imion on that day and repeated during 
 the following week. The two Chief Clerks ordered the 
 people back to work. They returned to work and a 
 second and a third time stopped. Picketing of the shop 
 began, lasted for a week, and though repeated protest was 
 made to the union, no relief was accorded. Later, 
 when the facts became public, the counsel for the Inter- 
 national Union accepted for his client frank responsibility 
 for negligence in the premises, and careful examination 
 
l6o LAW AND ORDER IN INDUSTRY 
 
 then made demonstrated that the negligence was not 
 willful nor deliberate. Several of the ofl&cers of the union 
 had been indicted by the Grand Jury — (they were sub- 
 sequently acquitted) — and the arrests following the 
 indictment took place during the week of the strike and 
 picketing in this particular shop. It is probably the 
 fact that failure to give to the Association the redress to 
 which it was entitled was due entirely to the distraction 
 of the attention of the ofl&cers to this other matter. 
 
 Coming at a time, however, when the relations be- 
 tween the parties were so tense, this failure was the death 
 of the Protocol. On the 17th of May, the Association 
 wrote the imion, reviewing the experiences of 1913 and 
 the action of the Board of Arbitration at that time * and 
 stated: 
 
 Within the past year, you have questioned the right 
 of the employer to select his staff, to hire and discharge 
 freely upon the basis of efl&ciency and economy, or dis- 
 charge for insubordination in the shop. 
 
 The Association in this letter stated that although the 
 Board had decided that both the power of management 
 and administration of discipline within the shop remained 
 with the employer, as it was before the signing of the 
 Protocol, the original contentions were revived, "making 
 necessary more conferences, more litigation and more 
 sessions of the Board of Arbitration." Reviewing the 
 
 * See Chapter K. 
 
THE TERMINATION OF THE PROTOCOL l6l 
 
 facts relating to the shop strike and picketing, the Asso- 
 ciation said: 
 
 This flagrant disregard officially of your duties and our 
 rights, after repeated warning, gives us no alternative, 
 except to regard your present conduct as an abandon- 
 ment of the Protocol and a repudiation of its obligations. 
 These matters have gone beyond the point of endurance. 
 We see no sense in securing decisions of the Board of 
 Arbitration if these decisions are ignored. . . . 
 
 ... we fail to see anything to be gained by further 
 appeals or decisions of the Board of Arbitration or by 
 conferences. 
 
 We deeply regret that after nearly five years of effort 
 to join in a cooperative work with you, we should now be 
 obliged to come to these conclusions. 
 
 The union replied, regretting that the Association had 
 "not seen fit to state its position and intentions in a 
 franker and more direct manner." It contested the 
 assertion of the Association that the union had "denied 
 or are denying the right of the employer 'to select his 
 staff, to hire and discharge freely upon the basis of 
 efficiency and economy, or to discharge for insubordina- 
 tion in the shop. ' " But it contended that the Board had 
 decided "in clear and unmistakable language that the 
 employers' right to discharge must be exercised in a just, 
 fair and reasonable maimer; that any worker deeming 
 himself treated unreasonably and unjustly has the right 
 to make complaint, and that all grievances of discharged 
 
l62 LAW AND ORDER IN INDUSTRY 
 
 workers must be investigated and adjusted on their 
 merits." The union in this letter insisted that it was 
 not they who questioned "the right of the employer to 
 discharge his workers contrary to the decision of the 
 Board of Arbitration," but that it was the Association 
 which questioned "the right of a discharged worker to 
 complain against an unfair discharge in clear defiance 
 of the decision of the Board." The union took the posi- 
 tion "that the workers are clearly entitled to a method 
 of redress of their grievances based upon any acts of 
 alleged imfairness and injustice on the part of the em- 
 ployer in view of the fact that they are required to sur- 
 render their only other instrument for the redress of 
 such grievances, the right to strike." The union as- 
 serted that it was ready "to defend this very reason- 
 able position before the Board and is prepared to abide 
 by the decision of the latter." It further stated: "That 
 we should hold different views on the subjects of your 
 communication is a position neither novel or striking. 
 Disputes on various points have often arisen between 
 our respective organizations, and the agreement between 
 us provides for a method of settlement of such disputes. 
 What is novel and striking in your communication is 
 your expressed determination to withdraw the present 
 disputes from the decision of the Board of Arbitration 
 and to take their adjustment into your own hands." 
 The union concludes by saying: 
 
THE TERMINATION OF THE PROTOCOL 163 
 
 The Protocol gives each party the right to abrogate 
 the instrument at will. We have not chosen to exercise 
 that right, and we certainly cannot recognize your 
 power to exercise that right for us and in our behalf. 
 If your Association has decided to abrogate the Protocol, 
 it must do so in its own behalf, taking all the respon- 
 sibihty for the act. 
 
 It then called upon the Association definitely to state 
 whether or not the communication meant that "your 
 Association has chosen to abrogate the Protocol between 
 us." To this, on the 20th of May, the Association re- 
 phed: "Our letter was intended to convey to you in 
 simple language that our mutual, official relations were 
 severed and severed by your acts." ". . . we regard 
 further conferences with your organization or sessions 
 of the Board of Arbitration as useless. We shall not ask 
 the gentlemen of the Board who have made so many 
 sacrifices to spend more of their valuable time making 
 decisions, which you admit now you cannot enforce 
 upon your members, even in so simple a matter as 
 picketing and shop strikes." 
 
 With the termination of the Protocol, all of its in- 
 stitutions fell — the Board of Arbitration, the Board of 
 Sanitary Control,* the Board of Grievances, the Com- 
 mittee on Immediate Action. The union believed that 
 the termination of the Protocol, coming at the time it did, 
 
 *This Board, notwithstanding, continued its work in the manner 
 indicated in Chapter IV. 
 
l64 LAW AND ORDER IN INDUSTRY 
 
 was a deliberate attempt on the part of the manufacturers' 
 association to destroy the union. Subsequent events 
 showed clearly that this was not the intention of the 
 manufacturers. They had been aggravated beyond 
 measure. All of the efforts that had been made to de- 
 velop constructive legislation were blocked by the "dis- 
 charge issue" and the unrestrained shop strike. As a 
 matter of fact, the manufacturers wanted to settle once 
 and for all these two fundamental matters and to secure 
 real peace through law and order. 
 
 With the death of the Protocol, it seemed that the in- 
 dustry would relapse into the old anarchical conditions 
 of pre-Protocol days. The union immediately began 
 preparations for a strike. It mobilized its forces, held 
 great mass meetings, denounced the manufacturers, and 
 a general strike similar to the 1910 strike seemed im- 
 minent. During the interval there was more law and 
 order in the shops than there had been at any one time 
 in the previous five years. The union demonstrated 
 completely its power of discipline in the hour of crisis. 
 It instructed its members to refrain from strike until 
 orders were given. On the other hand, the fear of whole- 
 sale discharges if the employers were given the right of 
 discharge without ready review was found to be unjusti- 
 fied. Fewer people, in fact, were discharged at this 
 particular time than at any other time. 
 
 On the 28th of June, 1915, the union addressed to the 
 
THE TERMINATION OF THE PROTOCOL 165 
 
 manufacturers' association a communication which, after 
 reciting the pendency of various matters of wages and 
 other issues before the Board of Arbitration and the fact 
 that "the instruments through which our grievances 
 have been settled and our mutual relations have been 
 regulated for the past five years" have been destroyed, 
 stated: 
 
 . . . now our industry faces the grave question as to 
 what is to take their place. 
 
 The situation, as we view it, admits of but one answer: 
 Either the employers and workers will get together on a 
 fair and reasonable working agreement for at least the 
 near future, or our industry will find itself involved in 
 an embittered labor struggle, which may spell ruin for 
 many manufacturers, and suffering and privation for 
 tens of thousands of workers and many more thousands 
 of persons, directly or indirectly dependent upon our 
 industry. 
 
 The workers fully realize their share of responsibility 
 for such a public calamity, and are ready to make every 
 reasonable effort to avert it. But the responsibility rests 
 upon the manufacturers as fully as upon the workers. 
 
 It proposed that, "In order to secure a complete and 
 speedy adjustment of all disputes and to avoid any pro- 
 longed and fruitless discussions and negotiations, . . . 
 our respective contentions be forthwith submitted to a 
 Committee or Board of unbiased persons under the 
 presidency of Mr. Louis D. Brandeis, or Mayor Mitchel, 
 
l66 LAW AND ORDER IN INDUSTRY 
 
 or any other person of recognized standing in the com- 
 munity." The Association responded, on July second, 
 by sa3dng, "We are willing to go before a Coimcil of 
 Conciliation, to be made up of disinterested and neutral 
 parties, and to lay our case before them, with the imder- 
 standing that arbitrable questions may be left to a 
 Board of Arbitration, to be subsequently formed, if 
 necessary." This proposition was accepted by the union. 
 In offering to submit its case to a disinterested tribunal 
 the union accomplished a master stroke of diplomacy. It 
 placed the Association in a position of apparently de- 
 clining to accept the juridical method of adjustment of 
 difficulties, after five years of experience. The communi- 
 cation of June 28th, 1915, by the union to the Association, 
 is le grand triomphe of the Protocol experience. Face 
 to face with the crisis, with grave issues involved, the 
 union accepts as an alternative to the strike, the decision 
 of a public body and the determination of public opinion 
 intelligently exercised, for its guidance. If the Associa- 
 tion was criticised for halting and for hedging about its 
 acceptance with reservations as to non-arbitrable ques- 
 tions, it will be recalled that there was involved a fimda- 
 mental principle, namely, the Hberty of the manufacturer 
 freely to select the workers in the establishment. This, 
 to the manufacturers, seemed so vital that it feU within 
 the scope of non-arbitrable matters. 
 To select such a Council presented immediately a 
 
THE TERMINATION OF THE PROTOCOL 167 
 
 task for both parties, and though relations between 
 the two had been broken by the termination of the Pro- 
 tocol, they were resumed for the purpose of agreeing 
 upon the method of bringing the Council of Conciliation 
 iato being. 
 
CHAPTER XV 
 
 THE mayor's council OF CONCILIATION 
 
 The plan promptly assented to by both parties pro- 
 vided for the creation of a Council of six, to be appointed 
 by the Mayor of the city. This plan was approved by 
 the Mayor and he inamediately appointed as the members 
 of the Council the leader of the Society for Ethical Cul- 
 ture, a former judge of the United States Circuit Court 
 of Appeals, a former dean of the Columbia Law School, 
 the City Chamberlain, the former head of the Board 
 of Arbitration, and the chairman of the Committee 
 on Arbitration of the Chamber of Commerce.* The 
 Council held twenty-one sessions, public and executive. 
 The opening words of its chairman are significant: "... 
 the appointment of this Mayor's Committee is an event 
 of some importance in the history of New York. . . . 
 twenty years ago a Mayor of New York would not have 
 appointed a committee to assist the two parties in the 
 removing of the causes of industrial friction. The fact 
 that your Chief Executive officer deems it a part of his 
 
 * Felix Adler, Walter C. Noyes, George W. Kirchwey, Henry Bruere, 
 Louis D. Brandeis, Charles L. Bernheimer. Dr. Adler was chosen as 
 chairman. 
 
 i6S 
 
THE MAYOR'S COUNCIL OF CONCILIATION 169 
 
 official duty to call upon a number of citizens for the 
 purpose of tendering their friendly offices in this fashion 
 indicates the new social note that is being struck in our 
 politics. . . ." In this address, the chairman described 
 the functions of the Council. He said: "... we are not 
 here to arbitrate; we are not here to decide. We are here 
 on the part of the City, representing the community, to 
 tender our friendly offices with a view to industrial peace. 
 And . . . with a view to industrial progress. Yet, de- 
 spite the fact that our function is purely that of sugges- 
 tion and advice, there is a certain invisible authority 
 lodged in this volunteer body; it represents a certain 
 pressure, though it does not represent and is not equipped 
 with coercive power. It is this distinction between 
 power and pressure; and in this Committee, in a way, 
 is lodged a certain pressure; that is, the pressure of the 
 whole upon the part, the pressure of the whole City upon 
 a certain fraction of citizenship of this town, the press- 
 ure of a community that seeks peace and welfare upon 
 that portion of the community in which peace and wel- 
 fare are for the moment endangered. It is the pressure 
 of the forces of integration in a community upon a point 
 where disintegration is about to or possibly may set in." 
 Let us stop for a moment to consider the significance of 
 this thought. The old Board of Arbitration derived its 
 powers from "the consent of the governed," that is, 
 the employers' association and the imion. It had no 
 
I70 LAW AND ORDER IN INDUSTRY 
 
 power of enforcing its decisions or judgments. When 
 either party terminated the Protocol, the Board of Ar- 
 bitration fell. If, in January, 1914, it foimd great efl&cacy 
 in a mere recommendation to one of the parties, it was 
 because at the moment of crisis the Board was environed 
 by an aroused and informed public opinion. Unlike the 
 Board, the Mayor's Council, though created upon the 
 initiative of the parties in interest, owed them after its 
 creation no duty whatsoever, save to render accurate, 
 intelligent judgment and to employ such tact and con- 
 sideration as would result in bringing about a new treaty 
 of peace. On the other hand, it owed to the community 
 a weightier duty — the duty to prevent strife, to find 
 firmer solutions for existing issues and to create a better 
 base for future relations. It brought to this task "the 
 pressure of the entire community upon a part." The 
 estabHshment of the Mayor's Council marks a real 
 step forward in the invention of machinery for the solu- 
 tion of industrial controversies. It represents the intelli- 
 gently organized power of the commimity applied to the 
 rational solution of an industrial crisis. It is public 
 opinion based upon knowledge, ascertaining the facts, 
 arriving at conclusions, and stating them in the name 
 of the entire community. 
 
 After it had rendered its findings, the l^ew York 
 Times, editorially commenting upon the work of the 
 Council, said: 
 
THE MAYOR'S COUNCIL OF CONCILIATION 171 
 
 Neither side can get on without the support of public 
 opinion, and that will go to the side which comports 
 itself most nearly in accord with the Council. The 
 Protocol had its faults but it kept a sort of armed peace 
 for five years. The new treaty possibly wiU surpass it, 
 not only in endurance under stress, but perhaps in pro- 
 ducing better relations than those of avowed hostility.* 
 
 The Evening Post said: 
 
 The city now has a permanent board of arbitration for 
 all disputes between the Cloak Manufacturers' Associa- 
 tion and the needle-workers' unions. This points to the 
 passing of the stage in which the public is a suppliant 
 for peace, and to the acceptance by the disputants of the 
 authority of the public to forbid war and to impose, in 
 an impartial spirit, new terms of cooperation.f 
 
 May we not say, as the executive head of the manu- 
 facturers' association said, upon the announcement of 
 the creation of the Council: "This is a better way of 
 getting at the truth than a costly strike, which gets 
 nowhere and settles nothing, and brings only violence 
 and hatred in its train." % 
 
 The first task to which the Council addressed itself, 
 after giving both sides ample opportunity to present 
 their claims and contentions was to settle the issues which 
 were still pending before the Board of Arbitration. The 
 
 * New York Times, August 7, 1915. 
 t Evening Post, August 5, igiS- 
 t New York Times, July 10, 1915. 
 
17.2 LAW AND ORDER IN INDUSTRY 
 
 Council obtained this result by clearly formulating its 
 own opinion, disregarding every statement that had gone 
 before. The fundamental rule was thus stated by the 
 Council: 
 
 . . . the principle of industrial efficiency and that of 
 respect for the essential human rights of the workers 
 should always be appUed jointly, priority being assigned 
 to neither. Industrial efficiency may not be sacrificed 
 to the interests of the workers, for how can it be to their 
 interest to destroy the business on which they depend 
 for a hving, nor may efficiency be declared paramount to 
 the human rights of the workers; for how in the long run 
 can the industrial efficiency of a country be maintained 
 if the human values of its workers are diminished or 
 destroyed. The delicate adjustment required to recon- 
 cile the two principles named must be made. Peace 
 and progress depend upon complete loyalty in the effort 
 to reconcile them.* 
 
 Applying this fimdamental rule, the Council laid out a 
 definite application of rights and obligations in the 
 relationship between employers and workers. With 
 reference to the freedom of the employer to make se- 
 lection of workers, to hire and discharge, the Council 
 laid down: 
 
 I. Under the present competitive system, the principle 
 of industrial efficiency requires that the employer shall 
 
 ♦Findings and Recommendations of the Comicil of Concdliation, 
 handed down July 23, 1915, and accepted by union and Association, 
 August 4i iQiS- 
 
THE MAYOR'S COUNCIL OF CONCILIATION 173 
 
 be free and unhampered in the performance of the 
 administrative functions which belong to him, and this 
 must be taken to include: 
 
 (c) That he is entirely free to select his employees at 
 his discretion. 
 
 (b) That he is free to discharge the incompetent, the 
 insubordinate, the inefficient, those unsuited to the shop 
 or those unfaithful to their obKgations. 
 
 (c) That he is free in good faith to reorganize his shop 
 whenever in his judgment, the conditions of business 
 should make it necessary for him to do so. 
 
 (d) That he is free to assign work requiring a superior 
 or special kind of skill to those employees who possess 
 the requisite skill. 
 
 With regard to the equal distribution of work and the 
 "right to the job," the Council declared: 
 
 (e) That while it is the dictate of common sense, as 
 well as common humanity, in the slack season to dis- 
 tribute work as far as possible equally among wage 
 earners of the same level and character of skill, this 
 practice cannot be held to imply the right to a permanent 
 tenure of employment, either in a given shop or even in 
 the industry as a whole. A clear distinction must be 
 drawn between an ideal aim and a present right. 
 
 The Council was not forgetful of the legitimate desire 
 for security of tenure nor of the prime need for better 
 regulation of emplojmient in the industry, but it said: 
 "A clear distinction must be drawn between an ideal 
 aim and a present right" and explained: 
 
174 LAW AND ORDER IN INDUSTRY 
 
 The constant fluctuations — the alternate expansions 
 and contractions to which the cloak-making industry is 
 so peculiarly subject, and its highly competitive char- 
 acter, enforce this distinction. But an ideal aim is not, 
 therefore, to be stigmatized as Utopian, nor does it 
 exclude substantial approximations to it in the near 
 future. Such approximations are within the scope of 
 achievement, by means of earnest efforts to regularize 
 employment and by such increase of wages as will secure 
 an average adequate for the maintenance of a decent 
 standard of living throughout the year. 
 
 And it clinched the thought with this firm statement: 
 
 The attempt, however, to impose the ideal of a per- 
 manent tenure of employment upon the cloak-making 
 industry in its present transitional stage is impracticable, 
 calculated to produce needless irritation and injurious 
 to all concerned.* 
 
 When we lay the findings of the Mayor's Council 
 side by side with the findings of the Board of Arbitra- 
 tion (Appendix C), it will be seen that what is "fair and 
 reasonable" is no longer in doubt. With all due regard 
 for the legitimate aim towards greater security of tenure, 
 the status and "permanent right to the job" theory is 
 blasted by clear analysis and statement of the situation 
 of both parties. The need for efliciency in the industry 
 is emphasized, though efl&ciency is not to be forwarded 
 
 • The full text of the Findings and Recommendations will be found 
 in Appendix D. 
 
THE MAYOR'S COUNCIL OF CONCILIATION 175 
 
 at the expense of "the essential human rights of the 
 worker" — ^which are defined. The freedom of the em- 
 ployer to decide, the recognition of his administrative 
 function imder the existing order of industry, is stated 
 clearly and beyond misconstruction. In spirit and in 
 fundamental purpose, the Board of Arbitration and the 
 Council were in complete harmony. On the other hand, 
 like many decisions of the courts, the decision of the 
 Board of Arbitration required modification of statement 
 and clarification. The Mayor's Council, in a sense, an 
 appellate tribunal, with power to affirm, reverse or 
 modify, did (without saying so) materially modify and 
 clarify the statement of the rule by the Board of Arbi- 
 tration. It may not be far wrong even now to say that it 
 required the intervening period of time and the crisis 
 itself to bring about such clarification of thought and 
 statement. 
 
 So was a great industrial conflict disposed of — not 
 by force, not by compromise of principle, but in a forum 
 of the parties' own making, by clear declaration of prin- 
 ciple, so clear that its own inherent soundness compelled 
 acceptance from both sides. 
 
 Not only did the union accept the findings of the 
 Mayor's Council as applied to the cloak situation in 
 New York, but a few months later made them the basis 
 of Protocol agreements in Boston and Chicago.* It 
 
 * See the issues of Women's Wear for S^tember 22 and 27, 1915. 
 
176 LAW AND ORDER IN INDUSTRY 
 
 is not too soon to say that the principles laid down by 
 the Mayor's Council are as certain to become a general 
 modus Vivendi in industry as the preferential union shop. 
 By destro3dng the status theory, the mere act of dis- 
 charge is no longer basis for litigation, and, in conse- 
 quence, the discharge issue, like the closed shop, should 
 no longer stand as a stumbling block in the way of better 
 relations between the parties. They can now turn their 
 attention once again to their Joint problems — the prob- 
 lems of enforcement of standards, the repression of the 
 shop strike, the solution of the piece price dilemma, and 
 the better regularization of employment. But note this: 
 The final result, so valuable to all parties concerned, could 
 not have been accomplished by mutual agreement. It 
 reqmred judgment, impartial judgment, by a tribunal 
 in which both sides had confidence and before which 
 each side might have a full and complete hearing. Before 
 such a tribunal there could be battle, not the battle of 
 war, but the battle of ideas. The prime lesson of the 
 1915 experience is that great conflict over vital principles 
 will arise even under joint agreements. Such conflicts 
 cannot he settled by force. Neither the strike nor the lock- 
 out will help. They cannot be settled by courts of law; 
 courts of law are not constituted to take care of them. They 
 cannot be settled — indeed, should not be settled — by com- 
 promise. They must be beaten out in a forum of reason. 
 If such a forum does not exist, it must be created. And 
 
THE MAYOR'S COUNCIL OF CONCILIATION 177 
 
 even though it exist, errors of judgment, like errors of courts, 
 must be expected. Such errors will require correction, 
 modification, or even reversal. Through error, progress will 
 be made. The rule for the forum, like the rule for the judge, 
 would seem to be: "Hew to the line; let the chips fall where 
 they may." 
 
CHAPTER XVI 
 
 THE NEW TRIAL BOARD 
 
 In the i6,ocx3 or 17,000 cases that went through the 
 machinery of the Protocol, no effort had ever been made 
 to introduce any kind of formalism. When the rules for 
 the Board of Grievances (Appendix B) were adopted, 
 none of the lawyers attempted to apply the formahty 
 of legal procedure. In consequence, the complaints 
 from one side to the other were in the simplest form. 
 When the discharge issue came to be serious, it was 
 found that this looseness of practice resulted in the 
 filing of complaints containing no other statement than 
 that So-and-So had been unjustifiably discharged, or 
 that So-and-So had been unjustly discriminated against, 
 and requesting an investigation. Upon such a bare 
 conclusion, the clerks would go out to the shop, investi- 
 gate, and, in case of their disagreement, the Committee 
 on Immediate Action would take charge. The study 
 made by the Department of Labor of the workings of the 
 Board of Grievances* developed that a vast number 
 of discharge cases was brought without any real founda- 
 
 * See Bulletins 98 and 144, Bureau of Labor Statistics, U. S. Depart- 
 ment of Labor. 
 
 178 
 
THE NEW TRIAL BOARD 179 
 
 tion. The records submitted to the Board of Arbitra- 
 tion in 1 9 14 showed that of 11,893 cases during the 
 years 1911, 1912, 1913 and 1914, but 142 "discharge" 
 cases went to adjudication, all the rest being either 
 withdrawn, dropped or adjusted through the good 
 offices of the clerks. In 191 1, 5% of the "discharge" 
 cases were withdrawn, 54% were dropped, 26% were 
 adjusted. In 1912, 12% were withdrawn, 48% were 
 dropped, 36% were adjusted. In 1913, 23% of the cases 
 were dropped, 19% were withdrawn, and 45% were 
 adjusted. In 1914, 22% were dropped, 18% were with- 
 drawn, and only 54% were adjusted. These figures 
 sufficiently indicate the very substantial mass of com- ■ 
 plaints either dropped or withdrawn. When the Mayor's 
 Council came to consider this problem, it made the follow- 
 ing application of its fundamental rule to the rights of 
 the workers: 
 
 (a) . . . the workers have an inalienable right to 
 associate and organize themselves for the purpose of 
 maintaining the highest feasible standard as to wages, 
 hours and conditions, and of still further raising the 
 standards already reached. 
 
 (&)... no employee shall be discharged or dis- 
 criminated against on the ground that he is participating 
 directly or indirectly in union activities. 
 
 (c) . . . the employees shall be duly safeguarded 
 against oppressive exercise by the employer of his func- 
 tions in connection with discharge and in all other 
 dealings with the workers. It is to be carefully noted 
 
l8o LAW AND ORDER IN INDUSTRY 
 
 that the phrase "oppressive exercise of functions" need 
 not imply a reflection on the character and intentions of 
 the high-minded employer. 
 
 And the Council said, "A tribunal of some kind is neces- 
 sary, in case either of the parties to this covenant be- 
 lieves itself to be unjustly aggrieved," but "the con- 
 struction of such a tribunal is a delicate and difficult 
 task, demanding the greatest care, lest on the one hand 
 the movements of industry be clogged by excessive litiga- 
 tion, and lest on the other hand the door of redress be 
 closed against even the most real and justified com- 
 plaint." It therefore recommended that: 
 
 (a) Every complaint from either organization to the 
 other shall be in writing, and shall specify the facts which, 
 in the opinion of the complaining organization, constitute 
 the alleged grievance, and warrant its presentatioii by one 
 organization to the other. Such complaints shall be 
 investigated in the first instance by the representatives 
 of the two associations, chosen for the purpose, it being 
 impressed upon them that they use and exhaust every 
 legitimate effort to bring about an adjustment in an 
 informal manner. In case, however, an adjustment by 
 them be not reached, the matters in dispute shall be 
 referred for final decision to a 
 
 (J) Trial Board of three, consisting of one employer, 
 one worker and one impartial person, the latter to be 
 selected by both organizations, to serve at joint expense 
 and to be a standing member in all cases brought before 
 the Board. The remaining two members shall be se- 
 lected as follows: 
 
THE NEW TRIAL BOARD i8i 
 
 The Association and the Union shall each make up a 
 list of ten persons, to be approved by the other. From 
 these two lists, as each case arises, each party shall select 
 one person. 
 
 In establishing the rule that the complaint should specify 
 the facts which constitute the alleged grievance, the 
 Council was borrowing from the lessons of judicature. 
 It is the experience of all courts that where the doors 
 of the tribunal are always open, litigation multiplies 
 beyond all reason. Without in any sense being technical 
 or too formal, there would seem to be no reason why 
 any complainant should not be required to set forth, 
 at the time of the assertion of the grievance, the facts 
 upon which he rests his claim. This simple rule must un- 
 doubtedly eliminate a very large mass of the litigation 
 that existed under the old system. Another change 
 of procedure took place. The Committee on Immediate 
 Action (as was pointed out in Chapter X) consisted of 
 two partisans and one non-partisan, the non-partisan 
 being neither a manufacturer nor a worker. The prob- 
 lems coming before such a tribunal are shop problems, 
 requiring the technical knowledge possessed only by a 
 manufacturer or a workman. In recommending that 
 the trial board itself should be made up of three, of whom 
 one should be an employer and one should be a worker, 
 the Council undoubtedly took a step forward. By so 
 doing, it left the Chief Clerks as advocates to fight out 
 
l82 LAW AND ORDER IN INDUSTRY 
 
 their respective claims before the tribunal and brought 
 into each situation the technical shop knowledge of the 
 employer and worker, at the same time putting all 
 three of the members of the board, upon their honor as 
 judges. 
 
 Another change: — The impartial chairman of the 
 old Committee on Immediate Action had been retained 
 at an annual salary. When this procedural change was 
 carried over into the dress and waist industry in New 
 York in 19 14, the employers' association and the local 
 union in that industry agreed that the impartial chair- 
 man should be employed hy the case at a fixed stipend, 
 each side to pay half. This expense item in the adminis- 
 tration of the law had the beneficent effect of forcing 
 the clerks to agree diplomatically and thus avoided 
 useless litigation. Influenced by this experience, when, 
 after the acceptance of the recommendations of the 
 Mayor's Council, the list of impartial men was made up, 
 both employers' association and union agreed in the 
 cloak industry that there, too, payment should be 
 made according to the service rendered in each case. 
 This should have the effect of preventing useless liti- 
 gation. 
 
 It is yet too soon to draw any deductions covering the 
 relative efl&ciency of the new method of procedure over 
 the methods of the old Committee on Immediate Action. 
 Since the acceptance of the recommendations of the 
 
THE NEW TRIAL BOARD 183 
 
 Council, the new machinery has been tried in several 
 cases coming up before trial boards* In the shop of 
 Charles Lavine & Co., it appeared that it became nec- 
 essary for the employer to curtail the number of people 
 in one of his departments, and accordingly five operators 
 were discharged. The union immediately filed a com- 
 plaint, charging that four operators had been discrimi- 
 nated against for union activity. One was a former 
 shop chairman, another was a member of the price com- 
 mittee, while a third was then a member of the execu- 
 tive board of the union. After hearing the evidence of 
 both sides, the chairman of the trial board f rendered 
 the following decision for that body: 
 
 In the matter of the complaint against the firm of 
 Charles Lavine & Co., of 126 West 2 2d street, for dis- 
 charging operators Boxer, Gopen, Lorber and Kaplan, 
 all active members of the price committee and former 
 shop chairman, claiming that they intend to curtail their 
 factory, while the remainder of the employees such as 
 finishers, pressers and cutters, have not been approached 
 in this regard, wherein it is charged that the action of this 
 firm is one of discrimination against the above mentioned 
 people for union activity, I beg to say that, after a full 
 hearing of the case, I have come to the conclusion that 
 the discharge of these four operators was legitimately for 
 
 * International Cloak Co. case — Women's Wear, September 15, 1915; 
 Prakin & Lebofsky case — Women's Wear, September 16, 1915; Charles 
 Lavine & Co. case — Women's Wear, October 11, 1915. 
 
 t CsTus L. Sulzberger, chairman; William Dann for employers, and 
 J. Sepin for workers. 
 
l84 LAW AND ORDER IN INDUSTRY 
 
 the purpose of reorganizing the factory and that no dis- 
 crimination for union activity has been shown. 
 
 These cases would seem to indicate that the rule in 
 cases of discrimination and discharge was stated by the 
 Council with sufficient clarity and definiteness to reduce 
 the issues for trial boards to simple questions of fact. 
 The Lavine case is significant, for in that case the dis- 
 charged employees occupied official positions as repre- 
 sentatives of the imion, and this was not taken as con- 
 clusive evidence of intention to discharge for "union 
 activity," but considered together with all the other 
 facts in the case. Undoubtedly, the ruling by the Council 
 upon the fundamental issue that had disturbed the re- 
 lations of the parties for nearly five years will of itself 
 relieve the strain and make unnecessary much of the 
 complex machinery of the Protocol. Indeed, when the 
 imion in its communication of June 28th suggested a new 
 agreement, it said: "We do not desire to revive the Pro- 
 tocol with its intricate machinery." The experiences 
 of the parties leading up to the termination of the Pro- 
 tocol convinced both that the machinery for redressing 
 grievances was too free of access. If we turn back these 
 pages to the consideration of the 1913 experience, we 
 will find that at that time the union was torn with con- 
 flict over belief that the machinery was inadequate to 
 redress grievances. Thus we do learn our lessons by 
 bitter experience only. In 1913 the leaders of the union 
 
THE NEW TRIAL BOARD 185 
 
 were ready to destroy the Protocol because of the inade- 
 quacy of the machinery to redress grievances. In 191 5 
 they would simplify procedure in order to revive the 
 Protocol. The explanation, of course, is that there is no 
 way of determining whether machinery of this character 
 is either adequate or inadequate, except by actual ex- 
 perimentation. We " learn by doing." One lesson has 
 been learned: Too much opportunity for litigation is 
 quite as bad as not enough. 
 
CHAPTER XVII 
 
 THE REVIVAL OF THE PROTOCOL 
 
 When the Mayor's Council first called the parties 
 into executive session, the chairman asked: Can we not 
 secure your immediate assent to the continuance of the 
 Joint Board of Sanitary Control? Both sides answered, 
 Yes. Thus the work of the Board, described in Chap- 
 ter rV, was continued — certainly a high tribute to its 
 management. Then the Council took up tentatively the 
 various provisions of the Protocol,* and foimd, if the "dis- 
 charge" issue were disposed of satisfactorily. Articles I, 
 II, III, IV, V, VI, VII, VIII, IX, X, XI, XII, XIII, 
 XIV and XV could again be made acceptable to both 
 parties. In consequence, the CoimcU first took up this 
 issue, then considered the questions relating to immediate 
 increases of wages and establishment of standard rates 
 per hour for piece workers, and thereafter made recom- 
 mendations upon these branches of the subject.f It also 
 recommended that the parties submit to the arbitra- 
 ment of the Council two questions, one involving over- 
 
 * See Appendix A. 
 t See VI, Appendix D. 
 
 i86 
 
THE REVIVAL OF THE PROTOCOL 187 
 
 time work on Saturday and the other the number of 
 legal holidays to be observed in the industry. 
 
 Thus, with the disposition of the "dischai'ge" issue, 
 the revision in machinery for redressing grievances, the 
 advance in wages and the matters reserved for arbitra- 
 tion, the old Protocol was revived — save in two further 
 important respects. First, the new agreement was 
 tentative and for a definite time. It was to continue 
 "for the period of two years" from the date of the 
 recommendations and "thereafter for like periods of 
 two years, imless terminated by either party on two 
 months' notice," with provision for modifications to be 
 presented at least two months before the termination 
 of any period. 
 
 Next, in making these recommendations as to wages 
 and machinery, the Council frankly admitted its own 
 inability within the time at its disposal to grapple fully 
 with the problems presented to it. Therefore, in addi- 
 tion to securing the assent of both parties to the re- 
 establishment of the Board of Sanitary Control, at 
 the very outset it secured also their assent to the con- 
 tinuance of the Council as a Commission for the purpose 
 of "investigating thoroughly the fundamental problems 
 of regularization, standards of wages and enforcement of 
 standards throughout the industry, of trade education, 
 of a more thorough organization of the industry; and 
 on the basis of such investigation to submit a construe- 
 
l88 LAW AND ORDER IN INDUSTRY 
 
 tive policy to both organizations." This assent of both 
 parties was subsequently ratified by formal appoint- 
 ment by the Mayor. In its recommendations, it will 
 be noted that the Council, referring to its continuance in 
 existence for study and constructive recommendations, 
 said: "... the Coimcil . . . wiU be available when- 
 ever the parties desire to consult with it, and if either 
 organization feels aggrieved against the other, such 
 organization may address the Council upon the subject, 
 and the Council will do the best it can to assist." Ques- 
 tions of interpretation did arise even before both parties 
 accepted the recommendations, and the manufacturers 
 asked the Council to make supplementary interpreta- 
 tions before filing their acceptance. This the Council 
 declined to do, stating that in its opinion its recom- 
 mendations were sufficiently clear, and unofl&cial inter- 
 pretations need not be considered. It did say, however, 
 that if the recommendations were accepted, it would 
 hold itself in readiness to interpret any of the provisions 
 of the recommendations at any time actual controversy 
 arose. 
 
 When both parties accepted the recommendations in 
 Mo, the old Protocol provisions enumerated were re- 
 vived, the Council of Conciliation became the new Board 
 of Arbitration, and besides became the impartial com- 
 mission to aid both parties in the rational study and 
 solution of their joint problems. In securing a body of 
 
THE REVIVAL OF THE PROTOCOL 189 
 
 men as arbitrators not one of whom was under obliga- 
 tion to either of the parties because of his selection, 
 thus backed by the appointment of the Mayor and public 
 opinion, we must admit that a change took place in the 
 direction of industrial progress in this industry. In 
 securing the aid of impartial and outside study for the 
 better solution of the problems affecting the industry, 
 the parties surrendered in exchange some part of their 
 independence as organizations. The old Protocol was 
 called "perpetual" because it had no definite time limit. 
 It was less perpetual than the newer docmnent, for it 
 could be terminated at any time. Every two years the 
 new document is subject to revision, and it may be ex- 
 pected that controversy will be left to accumulate for 
 such occasions and possibly make for serious friction 
 again. On the other hand, under the old agreement there 
 might be controversy at any time. Whether or not this 
 change is to the advantage of either party or both re- 
 mains to be seen; but it is not too optimistic to believe 
 that the issues which tore up the industry and the Pro- 
 tocol having been disposed of, attention will be con- 
 centrated from now on upon the constructive legis- 
 lation required for the upbuilding of the industry as a 
 whole. If both Join in such a work with the aid of the 
 Mayor's Council (now Commission), they should lose 
 something of the old feeling of antagonism — at least 
 vmtil some new large issue comes to the surface. Of 
 
igo LAW AND ORDER IN INDUSTRY 
 
 one thing we can be certain. The precedent of sub- 
 mitting in the hour of crisis to an impartial tribunal 
 appointed by the Mayor and backed by public opinion 
 the most vital conflict of principles that could arise in 
 industry will never be forgotten. 
 
CHAPTER XVIII 
 
 USTFEEENCES 
 
 The two assumptions made at the end of Chap- 
 ter VII would seem to be fully estabKshed: 
 
 1. Given institutions for preserving law and order in in- 
 dustry and for improving the welfare of the industry, the 
 enterprise will prove valuable to employer and worker alike, 
 provided it is carried out in a spirit of mutual helpfulness 
 and with a recognition of the business factors in the joint 
 problem. Given leaders on both sides who trust each other, 
 the underlying spirit of the institutions will find expression 
 in day to day progress. 
 
 2. Let either side seek to impose its will upon the other 
 by coercion; let either side play unfair, and the institutions — 
 however well planned — will crumble and fall. 
 
 The process is slow, too slow for impatient people, but 
 the faith of the framers of the Protocol is not wholly 
 misplaced. The line of direction in the way of bringing 
 a better peace and a higher welfare in industry, is shown 
 to be in the clearer recognition of the underljdng principles 
 of judicature and parliamentarism. In other words, that 
 reason and debate with impartial tribunals {voluntarily 
 selected) furnish the way out. 
 
 191 
 
192 LAW AND ORDER IN INDUSTRY 
 
 Experience in the cloak situation demonstrates con- 
 clusively that the faith in collective bargaining is justified 
 and that the system is practicable, provided adequate 
 machinery is established and there is leadership on 
 both sides fuUy expressing the spirit of the arrange- 
 ment. 
 
 What can be done then to facilitate the maJung of 
 collective agreements generally? The failure "to recog- 
 nize the union" brought upon the head of young Mr. 
 Rockefeller criticism not only from trades unionists, 
 but from those who undertook to speak for the public. 
 But Mother Jones foimd in half an hour that it was not 
 from greed that Rockefeller spoke. She found that he 
 was himian and that there was imderlying his opposi- 
 tion to trades unions a genuine desire to improve the 
 conditions of all workers, and particularly the Colorado 
 mine workers. His refusal to accept personal respon- 
 sibility for conditions in the mining camps in Colorado 
 was criticized by the public, of course.* But while 
 this chapter is being written he is in Colorado with the 
 assistance of an industrial expert,! engaged now in 
 meeting this personal responsibility, and in devising 
 machinery recognizing the right of the workers to have 
 their grievances redressed and to have their standards 
 improved. The machinery, it may be noted, is similar to 
 
 * See John Fitch's article in The Survey, August 21, 191s- 
 t Mackenzie King. 
 
INFERENCES I93 
 
 the machinery outlined in Chapter VI. Representatives 
 of the workers and representatives of the employers 
 join in investigating the facts and endeavor to arrive at 
 an agreement. If they fail, the matter then goes to 
 two chief representatives. The representatives of the 
 workers are selected by the people actually employed. 
 They are not selected through the organization of the 
 United Mine Workers of America. Mr. King is reported 
 to have said during Mr. Rockefeller's visit to the mines, 
 when this method of adjusting grievances was outliaed 
 to the press: 
 
 There is to be no recognition of the United Mine 
 Workers as a result of Mr. Rockefeller's visit to Colorado. 
 Our new system of welfare work under which employees 
 are allowed to name grievance committees to protest to 
 mine superintendents over conditions they don't like 
 is the company's answer to demands of the union for 
 recognition. It is democratic and successful. 
 
 The plan does not contemplate official dealings with 
 the United Mine Workers in the same frank and open 
 way in which the cloak manufacturers deal with the 
 cloakmakers' union, or the Chicago clothing firm deals 
 with the garment workers. On the other hand, it does 
 recognize the underlying principle of collective bargain- 
 ing, in that it recognizes that the workers are entitled to 
 be organized and to deal with their employers in organ- 
 ized fashion; and further recognizes the necessity for 
 
194 LAW AND ORDER IN INDUSTRY 
 
 machinery for the adjustment of grievances and for the 
 improvement of standards by juridical and parliamentary 
 processes. Up to the very point of dealing with the 
 union itself, the plan is a fuU acceptance of the princi- 
 ples imderlying the Protocol. Whether or not the plan will 
 work, remains to be seen. Already the leader of the 
 mine workers, is reported to have said: 
 
 I believe Mr. Rockefeller is sincere. I believe he is 
 honestly trying to improve conditions among the men in 
 the mines. His efforts probably will result in some 
 betterments which I hope may prove to be permanent. 
 
 However, Mr. Rockefeller has missed the fundamental 
 trouble in the coal camps. Democracy never has existed 
 among the men who toil underground. The coal com- 
 panies have stamped it out. Now Mr. Rockefeller is not 
 restoring democracy, he is trying to substitute paternal- 
 ism for it. 
 
 I am glad to assume that Mr. Rockefeller is earnest in 
 his desire to do something for the miners, but Mr. Rocke- 
 feller will be here only a week or two. After he is gone 
 what then? The miners will have neither organization 
 nor contracts to protect them. They will be at the mercy 
 of whatever superintendent or pit bosses the company 
 may select. 
 
 When I talked with Mr. Rockefeller in New York I 
 told him that if he really wanted to do something for the 
 miners he ought to talk with President White of the 
 United Mine Workers of America and sign a contract 
 with the organization. Yes, I mean recognition of the 
 union. That is the only remedy which will permanentiy 
 cure the trouble in Colorado. Without union recogni- 
 
INFERENCES 19S 
 
 tion I fear, I gravely fear, that all of Mr. Rockefeller's 
 efforts will count for little* 
 
 In the report of the representatives of the employers 
 upon the Federal Industrial Relations Commission, ten 
 explanations are offered for employers' opposition to 
 dealing with trades unions, viz.: 
 
 (o) Sympathetic strikes. 
 
 (b) Jurisdictional disputes. 
 
 (c) Labor imion poUtics. 
 
 (d) Contract breaking. 
 
 (e) Restriction of output. 
 
 (/) Prohibition of the use of non-union made tools and 
 materials. 
 
 (g) Closed shop. 
 
 (k) Contests for supremacy between rival unions. 
 
 (i) Acts of violence against non-iuiion workers and the 
 properties of employers. 
 
 (j) Apprenticeship rules.f 
 
 Perhaps the cause of more conflicts than any other of 
 those mentioned, is the "closed shop." The "preferential 
 union shop" established through the Protocol in 1910, 
 would seem to furnish the modus vivendi for elimination 
 of this obstacle, (e), (/) and (j) relating to the conflict 
 between what we may call "the efficiency principle," 
 and "control of the work," is substantially the same 
 
 * New York Times, September 23, 1915. 
 
 t Report of Federal Commission on Industrial Relations (1915), p. 414. 
 
196 LAW AND ORDER IN INDUSTRY 
 
 kind of issue that produced the 191 5 clash in the cloak 
 industry. The principles laid down by the Mayor's 
 Council, and now accepted by the garment workers' 
 union, would seem here to furnish the way out. 
 
 (b) Jurisdictional disputes, (c) Labor union politics, 
 and (h) Contests for supremacy between rival unions, are 
 obstacles to be overcome by strong national self-super- 
 vision and self-control of unions generally. Only the 
 trades unions themselves can change this. It wiU come 
 about when they recognize that the federationist theory 
 will not suffice to meet the growing obligations of great 
 national miions dealing collectively with employers. 
 They must vest in the national Federal body power simi- 
 lar to that Vested by the states in the Federal Govern- 
 ment. To-day the American Federation of Labor oc- 
 cupies the same position with reference to its power to 
 make good in dealing with associated employers, that the 
 colonies occupied in dealing with other nations before 
 we created a Federal Government. 
 
 But of the great obstacles enumerated in the employers' 
 schedule, (d) Contract breaking, and (i) Acts of violence 
 against non-union workers and the properties of employ- 
 ers, are the most serious. 
 
 As to contract breaking, trades unionists themselves 
 are more and more coming to realize its seriousness. The 
 employers' representatives on the Federal Commission 
 quote from two official union journals, one the Coal 
 
INFERENCES 197 
 
 Age of pecember 20, 1913, issue by the Association 
 of Bituminous Coal Operators of Central Pennsylvania, 
 and the other from the United Mine Workers' Journal, 
 official organ of the United Mine Workers of America, 
 in each of which the ofl&dals clearly recognize and con- 
 demn violations of contracts by members of the union. 
 On this point the ofl&cial organ says: 
 
 I believe I am safe in saying that no problem has given 
 them (the officials of the union) so much concern as the 
 problem of local strikes in violation of agreements. 
 
 Thousands of dollars are expended every year in an 
 effort to organize the 250,000 non-union miners in the 
 United States, while hundreds of our members go on 
 strike almost every day in absolute, unexcusable viola- 
 tion of existing agreements.* 
 
 And in the other, where suspension of work was resorted 
 to in order to compel a complete unionizing of the mine: 
 
 This conduct is in direct violation of the contract, 
 and specifically interferes with and abridges the right of 
 the operator to hire and discharge; of the management of 
 the mine, and of the direction of the working forces; this 
 conduct in violation of contract on the part of the Mine 
 Workers, as weU as that mentioned in the preceding 
 paragraph, has resulted in more than one hundred strikes 
 during the life of our scale agreement, t 
 
 The Protocol in the cloak industry, after five years of 
 
 * Report of Federal Commission on Industrial Relations (1915), p. 420. 
 t/(i.,p.42i. 
 
1 98 LAW AND ORDER IN INDUSTRY 
 
 operation, was terminated on account of a shop strike 
 unmitigated in time. Why should an entire industry 
 suffer on both the workers' and the employers' side, and 
 why the public, because of the law-breaking of a small 
 anarchically-minded group? 
 
 In those industries where the employers control the 
 output and are not affected by competition, the prob- 
 lems of collective bargaining are simple. It makes no 
 difference what wages the competitor pays nor what 
 standards of labor he observes. But in those indus- 
 tries where the competition in labor cost is vital and de- 
 terminative of success or failure in business, employers 
 will not accept willingly the methods of collective bar- 
 gaining until this competitive obstacle is overcome. 
 This is, indeed, the crux of the difficulties in the cloak 
 industry. 
 
 Mr. Grant, in his study of the building trades, finds the 
 following process taking place: The employer of union 
 men complains to the union that a competitor is allowed 
 to go on under non-union conditions. Naturally, he 
 feels that it is not fair to him to be obliged to observe 
 all the union rules and regulations when his competitors 
 are free from like restrictions. When the union's busi- 
 ness agent comes along and complains because of some 
 more or less important violation of a rule, the employer 
 is apt to get angry and say, "Why don't you go after the 
 non-union work and leave me alone? Mr. Smith and Mr. 
 
INFERENCES 199 
 
 Jones are employing non-union men. They can under- 
 bid me on every job I estimate against them. They are 
 not paying the wages. But you don't bother them. 
 You keep after me. I am growing tired of it, and if 
 something is not done soon, I shall quit employing union 
 men." * 
 
 The same story can be told in the cloak industry. 
 Mr. Grant says: 
 
 The argument is logical and the union business agent 
 knows it. If he does not make some effort to stop the 
 non-union work, another firm, probably, will be lost to 
 the union. He is pressed by the members of his union 
 demanding protection from the unfair competition of 
 the non-union man, and he is pressed by the union em- 
 ployer who demands protection against his unfair com- 
 petitor. Neither suggests violence, but if the non-union 
 firms will not meet the business agent or discuss condi- 
 tions with him, he resorts to the only expedient which 
 appears open to him. Either the non-union men are 
 assaulted, or an attempt is made to destroy the 
 work. 
 
 The structural ironworkers tried both methods and the 
 latter seemed most effective and least dangerous. In the 
 beginning of the trouble, when the slugging of non-union 
 men was the rule, the arrests were numerous and many 
 convictions were obtained. The dynamiters carried on 
 their work of destruction for five years before they were 
 caught.f 
 
 * Report on the International Association of Bridge and Structural 
 Ironworkers, by Luke Grant, pp. 136, 137. 
 t Id., p. 137- 
 
20O LAW AND ORDER IN INDUSTRY 
 
 No self-respecting employers' association and no self- 
 respecting union can resort to methods of this sort for 
 meeting competition. We seem to be running around 
 within two vicious circles: either (a) The Protocol em- 
 ployer breaks his agreement because the non-Protocol 
 employer is breaking his agreement; or the workers 
 break their agreement by going on strike because the 
 employer breaks his agreement, — an attempt to cure 
 contract-breaking by contract-breaking — Or, (b) The 
 Protocol employer breaks his agreement because the non- 
 Protocol employer breaks his. The union gets after the 
 non-Protocol employer and calls a strike. Strike means 
 violence. If the parties were perfectly frank with each 
 other, the conversation would run something like this: 
 
 Employers: We will make an agreement with you 
 
 provided you can enforce the same standards against 
 
 our competitors. 
 The Union: We are willing to obligate ourselves to do 
 
 that. 
 Employers : How can you do it? 
 The Union: By strikes. 
 Employers : Well, your strikes without violence are not 
 
 generally successful. 
 The Union: Then we will have to use violence. 
 Employers : Then we can't join with you. 
 The Union: Then we'll strike against you. 
 Employers: Well, your strikes against us won't be 
 
 successful unless you use violence. 
 The Union: We know that. 
 
INFERENCES 201 
 
 Employers: Well, if you use violence we will too. 
 The Union: All right, let's have it out. 
 
 Of course, no conversation of this sort ever actually 
 takes place, for the obvious reason that neither party 
 would be so frank, yet that the process goes on as a 
 mental process, is too true to be disputed. As Mr. Grant 
 says: "Mr. St. John gave public expression to views that 
 are privately entertained by tens of thousands." * 
 
 Notwithstanding the clear understanding of what 
 constitutes peaceful picketing, in practice it is not 
 carried out. Mr. Grant says: 
 
 The pickets know that; so do the employers. It is not 
 necessary that the pickets actually assault the employees 
 who desire to enter the factory. If the pickets assemble 
 in sufficient niimbers, it is possible to intimidate those 
 seeking employment, without actually assaulting them. 
 But it is the fear of possible assault that brings results; 
 not moral suasion. The "moral suasion" argument is 
 good in the courtroom or on the public platform, but 
 around the factory it counts for practically nothing. 
 Every one with practical experience of conditions knows 
 that.t 
 
 "It is better to meet the facts squarely than to dodge 
 them by subterfuge and hypocrisy." The truth of the 
 matter is, that if strikes cannot be conducted success- 
 
 * Report on the International Association of Bridge and Structural 
 Ironworkers, by Luke Grant, p. iii. 
 t/d., p. no. 
 
202 LAW AND ORDER IN INDUSTRY 
 
 fully without violence, nor successfully resisted without 
 violence, both sides continue to move in a vicious circle. 
 The business factor of competition is at the bottom of 
 the whole difficulty. Its solution is the key to the whole 
 problem. A careful study of the experience with col- 
 lective agreements in Great Britain led the Industrial 
 Council, made up of representative employers and rep- 
 resentative trades imions, to say: 
 
 In cases where, however, there is a considerable 
 minority outside the Employers' Association, and the 
 work-people's organization is not sufl&ciently strong to 
 deal with such minority, there is a real danger that 
 effective voluntary agreements cannot be maintained 
 even as regards the majority. Where the agreement 
 provides for a particular rate of wages (and the industry 
 is one in which the wages-bill is a prominent factor in the 
 cost of production) the members of the Employers' 
 Association who are parties to the agreement, and who 
 comply with its terms, are at a distinct disadvantage as 
 compared with those non-associated firms who, while not 
 being bound to pay the rate of wages fixed by the agree- 
 ment, are competitors with them. The influence of such 
 a non-compl3dng and competitive minority is likely to 
 endanger the continuance of the agreement, and we are 
 of opinion that means should be provided whereby, at 
 the request of the parties to an agreement, and after 
 suitable inquiry, its operation should be extended to 
 include the minority and its terms made applicable to 
 them.* 
 
 * Reprinted in Bulletin 133, U. S. Department of Labor, Par. 47. 
 
INFERENCES 203 
 
 In the history of the refonn of municipal politics, we 
 have learned some lessons from the experiences of the 
 last quarter of a century. The "guilt is personal" 
 theory was carried out in the attack upon Tweed and 
 upon Croker. With our perspective modified in the 
 light of experience, we now realize that Tweed and 
 Croker were merely applying to municipal affairs the 
 general ethical standards of their own friends in mer- 
 cantile affairs. The community applied a different 
 ethical standard to municipal affairs than men applied 
 to their own private business. We had waves of reform. 
 The battle ranged about moral standards and their 
 enforcement. Little attention was paid to the business 
 standards and the administration of a city. When the 
 reformers were swept into power, they made "reform 
 hideous" because they failed to recognize and face the 
 business factors in the municipal problems. It did not 
 seem that sound financial management and eflicient 
 business administration could be squared with high 
 moral purpose and principles. When the municipal 
 reformers got to meeting the facts squarely and studied 
 the factors that made for better government, they 
 began to make real progress. The Citizens' Union 
 established a Legislative Bureau in Albany, got at the 
 facts, reported them to the community and then and 
 there in New York began a steady improvement in the 
 tone and character of legislators and legislation. The 
 
204 LAW AND ORDER IN INDUSTRY 
 
 publication of the records of the legislators made for the 
 advancement or retardation of men in politics, accord- 
 ing to their deserts. Similarly, the Bureau of Municipal 
 Research found the facts in reference to municipal ad- 
 ministration, disclosed them, and made for better under- 
 standing and sounder judgment upon issues relating to 
 the management of the city. 
 
 Is it not possible that the social reformer needs still 
 to learn the lesson that the municipal reformer has al- 
 ready learned? Industrial peace and welfare is not to 
 be secured by acquiescence in violence as a method, nor 
 by attacking personally individual employers, or even 
 the whole class. Employers generally already are aware 
 of the value of collective bargaining to society generally. 
 They accept it in theory and in principle. What they 
 want to know is how to run business by it. We will get 
 more collective agreements when we solve the problem of 
 enforcement of standards. Those who from the outside 
 believe in the social value of joint agreements between 
 unions and employers' associations, must not rely upon 
 violence or law-breaking as the means for securing them. 
 They must face the business factors squarely. When 
 we shall do this we shall make progress, — as we did in 
 municipal reform. 
 
CHAPTER XrX 
 
 LAW BREAKING 
 
 To strike without orders from his union, is for the union 
 member to break the law of his own organization. To pay 
 under the accepted scale is for the association member 
 to break the law of his own organization. For the em- 
 ployer outside of the association under a union agree- 
 ment, imder-pajonent of scale is plain violation of his 
 pledged word. 
 
 Violations of agreements are simply the efforts of men 
 dissatisfied with their bonds to make short-cuts through 
 the law — the law of their own making. The employer 
 who breaks the law invites the workers to follow his ex- 
 ample. The worker who breaks the law incites the em- 
 ployer to hit back. The formula each comes to employ is, 
 
 wrong + wrong = right. 
 This formula is not new in industry. Two recent studies, 
 each by trained investigators,* made under the direction 
 of the Federal Industrial Relations Commission, confirm 
 the impression that the lines of strength and weakness 
 
 * Report on the Colorado Strike, by George P. West; and Report on 
 the International Association of Bridge and Structural Ironworkers, 
 by Luke Grant. 
 
 20S 
 
2o6 LAW AND ORDER IN INDUSTRY 
 
 we find in the cloak industry, are common to other in- 
 dustries. No truth is so completely demonstrated as the 
 futility of law-breaking as a method of accomplishing 
 results, whether employed by workers or by employ- 
 ers. 
 Robert Hunter says: 
 
 The problem of methods has always been a vital 
 matter to the labor movement, and, for a hundred years 
 at least, the quarrels now dividing syndicalists and 
 socialists have disturbed that movement. In the Chart- 
 ist days the "physical forcists" opposed the "moral 
 forcists," and later dissensions over the same question 
 occurred between the Bakouninists and the Marxists. 
 Since then anarchists and social democrats, direct 
 actionists and political actionists, syndicalists and 
 socialists have continued the battle.* 
 
 After a cahn study of the entire history of the labor 
 movement, Mr. Hunter concurs with the conclusion of 
 Morris HiUquit (now counsel for the Cloakmakers' 
 Union). Says Mr. Hxmter: "Condemning without re- 
 serve every resort to lawbreaking and violence, and in- 
 sisting that both were 'ethically unjustifiable and tactic- 
 ally suicidal,' Mr. Hillquit pointed out that whenever 
 any group or section of the labor movement has em- 
 barked upon a policy of 'breaking the law' or using 'any 
 weapons which will win the fight,' whether such policy 
 
 * "Violence and the Labor Movement," by Robert Hunter, Preface, 
 p. iz. 
 
LAW BREAKING 207 
 
 was styled 'terrorism,' 'propaganda of the deed,' 'direct 
 action,' 'sabotage,' or 'anarchism,' it has invariably- 
 served to demoralize and destroy the movement, by 
 attracting to it professional criminals, infesting it with 
 spies, leading the workers to needless and senseless 
 slaughter, and ultimately engendering a spirit of dis- 
 gust and reaction. It was this advocacy of 'law-break- 
 ing ' which Marx and Engels fought so severely in the 
 International and which finally led to the disruption of 
 the first great international parliament of labor, and the 
 socialist party of every country in the civilized world 
 has since uniformly and emphatically rejected that 
 poKcy." * 
 In the Ironworking Industry: 
 
 Diplomacy was out of the question, so dynamite was 
 tried. It proved to be a colossal blunder, as was the 
 rejection of the peace terms offered in the beginning of 
 the fight. 
 
 The campaign of violence was a failure because of the 
 determination and financial resources of the employers 
 opposing the union. Had the ironworkers expended the 
 same money and energy in trying to organize the open 
 shop men by legitimate methods, the results might have 
 been different.! 
 
 Mr. Grant gives as one of his conclusions, that though 
 
 * Violence and the Labor Movement," by Robert Hunter, Preface, 
 p. viii. The New York Call, November 20, 1911. 
 
 t Report on the International Association of Bridge and Structural 
 Ironworkers, by Luke Grant, p. 138. 
 
208 LAW AND ORDER IN INDUSTRY 
 
 there may be found many instances where the "use of 
 physical force has, for a time, won advantage for the 
 side that has used it," the gains "are temporary and do 
 not make for permanent industrial peace"; that though 
 an employer through force of circumstances submits 
 "to certain conditions which he believes are imjust," 
 and the "fear of violence and the destruction of property 
 may cause him to make terms with a imion against 
 his will and business judgment," submission through such 
 fear or business necessity will lead him to "break from 
 the restraint on the first opportunity." The same rule 
 applies to workingmen. "Force may subjugate one side 
 or the other in an industrial dispute, but it will not re- 
 move discontent. It will not establish justice." * 
 
 Before the United States Commission on Industrial 
 Relations, the Secretary of the Industrial Workers of 
 the World said that he believed in violence if it were 
 necessary to accomplish a victory; that if destroying 
 property was essential to produce the result, he was 
 ready to join in the destruction of property. And, in 
 justification of the views he expressed, he asserted that 
 employers did not hesitate to use their power to oppress 
 workers and that their action in forcing child labor, 
 limiting the opportunities of children to obtain an edu- 
 cation and working their workers long hours, thus 
 
 * Report on the International Association of Bridge and Structural 
 Ironworkers, by Luke Grant, p. 139. 
 
LAW BREAKING 209 
 
 destro)mig their health and efl&dency, was a brutal 
 application of force as bad as the workers' resort to 
 violence. Mr. Grant says that though "the views of 
 Mr. St. John are extreme and most labor leaders will 
 openly repudiate them," he did, in fact, give "public 
 expression to views that are privately entertained by 
 tens of thousands. It is results that the workers are 
 striving for and the history of the labor movement 
 proves that they have been compelled to fight for every 
 important improvement in conditions which they now 
 enjoy." * Again, that "Had the workers always taken 
 the course which the letter of the law requires them to 
 take, they would, in aU probability still be working twelve 
 or fourteen hours a day." f 
 
 In Colorado we find employers freely violating the law. 
 If one per cent of what they are charged with by Mr. 
 West be true, they deserve his severe condemnation. 
 From breaking one's word and breaking the law, to con- 
 doning violence, is an easy descent, and from condoning 
 violence to the employment of hired "sluggers" or 
 "thugs" is the next easy step. As Mr. Grant says: 
 "Violence grows. From 'punching the nose of a scab' 
 openly, where he has a chance to strike back, it is only a 
 few steps to lying in ambush for him and trying to brain 
 
 * Report on the International Association of Bridge and Structiual 
 Ironworkers, by Luke Grant, p. in. 
 f/i., p. 112. 
 
2IO LAW AND ORDER IN INDUSTRY 
 
 him with a bludgeon." There has been a marked change 
 (as Mr. Grant finds) in the building trades in the nature 
 of the violence committed and in the methods used, and 
 the ordinary workman who in former days was apt to 
 use his fists on the head of the "scab" for the sake of 
 "the cause," seldom does so now. "His place has been 
 taken by the professional thug and gunman. Violence has 
 become commercialized and made more brutal." * As 
 Mr. Grant says: "It is puerile to contend that force and 
 violence are not accompaniments of strikes and lock- 
 outs." t Strikes in the cloak industry, as we have seen, 
 furnish no exception to this rule. 
 
 "On one side is the employer who rightly or wrongly 
 believes that he is justified in refusing to accede to the 
 demands of the workers. He recognizes that if they are 
 not satisfied with these demands they may leave their 
 places and he may substitute others. This is the theory 
 of the law and the justification for organized withdrawal 
 from employment. But this is not the whole of the 
 matter. On the other side are the workers, who "feel 
 they have a property right in the jobs they formerly 
 held. That the law holds they have no such right, and 
 that anyone who is willing to accept the conditions, shall 
 have a right to fill the jobs, without fear or molestation, 
 
 * Report on the International Association of Bridge and Structural 
 Ironworkers, by Luke Grant, pp. iis, ii6. 
 t Id., p. io8. 
 
LAW BREAKING 21 1 
 
 does not alter the situation in the minds of the workers. 
 They look upon the new employees as enemies, who are 
 taking the bread and butter out of their mouths and the 
 mouths of their families. They cannot see the justice 
 of the law. . . . They refuse to accept the dictum of the 
 law and of the employer, that they no longer have any 
 claim on their former jobs. They want the jobs, which 
 they think are theirs. . . . What is the natural thing 
 for the strikers to do? Prevent new employees from 
 taking the jobs in that factory, of course. If that can be 
 done by peaceful methods, so much the better. If it 
 cannot, then it must be done by violent methods. The 
 important thing is that it be done. That is the way the 
 workers view the situation, the law to the contrary not- 
 withstanding." * 
 
 When they reach this point the employer feels justified 
 in repelling their attacks by similar use of force. Thus 
 serious industrial problems are settled by hired strong- 
 arm men, fighting it out on the streets! 
 
 The study of these other industries helps us to un- 
 derstand the Protocol problem. Without peace agree- 
 ments we are face to face with law-breaking, running 
 to riot and murder. With peace agreements we are again 
 face to face with law-breaking, but law-breaking of a 
 lesser kind, though inherently of the same moral nature. 
 
 * Report on the International Association of Bridge smd Structural 
 Ironworkers, by LiJie Grant, pp. 109, no. 
 
212 LAW AND ORDER IN INDUSTRY 
 
 The experience of the cloak industry demonstrates that 
 where large numbers of people are involved, there are 
 bound to be breaches of faith, breaches of the law of the 
 parties' own making. But there is clear progress. Since 
 1910, as we have seen, there has been nothing approach- 
 ing the reign of anarchy of pre-Protocol days. On the 
 contrary, the gravest issues arising in industry have been 
 met and disposed of in parliamentary and juridical 
 fashion. There has been no general strike since igio. 
 Both sides have been driven by the force of bitter expe- 
 rience to prefer the method of law and order, even when 
 imder ordinary circumstances, either might have pre- 
 ferred to test the other's strength. Yet it would be a 
 perversion of the truth if we failed to schedule those 
 manifestations of anarchy that still persist, and persist in 
 spite of provision for orderly redress of grievances. 
 
 The anarchy that we are here now considering, how- 
 ever, is not the anarchy prevailing only in industrial 
 relations nor in immigrant industries. It is, — to quote 
 a keen writer on American politics — vindicative of an 
 "insidious and dangerous moral disorder," rumiing 
 through the whole of American life. It is, indeed, the 
 "hypocritical homage to a law" which the American 
 democracy does "not intend to obey except when con- 
 venient." 
 
 The Frank murder took place in Georgia. It was an 
 American outrage. The offenders were neither immi- 
 
LAW BREAKING 213 
 
 grants nor sons of immigrants. It was " in a deeper sense 
 only an unusually sharp and shameless illustration of a 
 besetting weakness of the American democracy." The 
 local communities in our country "have wished more 
 than anything else to be left alone"; though they did not 
 attempt to get along without law, they did in fact wish 
 "freedom to do things in their own way, no matter whether 
 that way was right or wrong.'" They promoted law "into 
 a kind of disembodied coadjutor of Bang Demos. But 
 they wanted on suitable occasion to he able to exempt them- 
 selves from the reign of the law. . . . The people set up an 
 impersonal king, whom they could unite to worship, but 
 whom they did not have to obey. . . . The American 
 democracy submitted to legalism only because legalism 
 did not forbid a liberal measure of license outside of the 
 law. ..." And this writer observes that "Instead of 
 pajdng hypocritical homage to a law which it did not 
 intend to obey except when convenient, the future 
 American democracy must above all be sincere and 
 thoroughgoing. It caimot afford to place a pretender on 
 a throne in order to have a plausible excuse for escaping 
 now and then from his authority." * No, anarchy and 
 lawlessness in our coimtry are not confined to workers or 
 to employers. It is in the very atmosphere in which we 
 live. 
 
 * Georgia and the Nation, The New Republic, September 4, 1915, 
 pp. 113, 114. (Italics ours.) 
 
214 LAW AND ORDER IN INDUSTRY 
 
 The mere making of collective agreements or the inven- 
 tion of new industrial appliances for redressing grievances 
 or for establishing law and order in industry will not 
 wholly eliminate this anarchical tendency. Protocols 
 cannot bring to industry the moral backbone, nor invest 
 it with the moral fiber lacking in American life generally. 
 While its philosophy will gradually enter the dim re- 
 cesses of minds already saturated with the strong drink 
 of license, until employers and workers generally learn 
 that drunkenness does not pay, temperance will not 
 become a steady daily diet. The prime value of Protocol 
 institutions lies in their educational influence upon those 
 actually engaged in the work. It takes time and much 
 suffering, but it leads more and more to an acceptance 
 of law and order as something binding in and for their 
 own sake. We are, of course, not in this instance speak- 
 ing of law in the sense of organized legalism or formalism. 
 We are here dealing with law of the parties' own making, 
 i. e., the law of the contract, freely made, and we are 
 speaking of defaults in the observance of one's own obli- 
 gations. The employer who "cancels his orders" is as 
 low in the scale as the worker who goes out on "shop- 
 strike" in violation of the Protocol. If we, in America, 
 would not exchange our political philosophy with the 
 Germans, we must get the discipline of " est ist verboten" 
 in some other way. We take the position that a pledge 
 or a treaty is not a mere "scrap of paper." This is the 
 
LAW BREAKING 215 
 
 standard by which we in America judge the great inter- 
 national crisis now before us. Yet, we ourselves, put 
 law "as a pretender on a throne in order to have a 
 plausible excuse for escaping now and then from his 
 authority." 
 
 The lawyer in these industrial situations may perform 
 his duty as advocate for either side in such controversial 
 matters as are sure to arise. He may invent new ma- 
 chinery to eliminate friction. He may join in carrying 
 out the policies assented to by both parties and in finding 
 solutions for joint problems. But beyond all these 
 things, the lawyer's job primarily is one of education in 
 first principles — the principles of law and order in 
 democratic society. He must emphasize the sanctity of 
 the pledged word and the adopted rule. He must secure 
 more and more the ready acceptance of the slower, 
 orderly way of redressing wrongs. The "short-cut" is a 
 snare and a delusion. It leads to the woods. 
 
CHAPTER XX 
 
 THE WHITE PROTOCOL LABEL 
 
 Within six months after it had gotten under way, the 
 Board of Sanitary Control determined to encourage the 
 maintenance of sanitary conditions by awarding a cer- 
 tificate to employers complying with its standards. In 
 effect it was a "good ticket" for good behavior. This 
 certificate was of value. It gave a sense of personal 
 pride to the employer. When the system had been in 
 operation for a short time, it occurred to me that if 
 instead of a good ticket for the shop, we could have a good 
 ticket for the garment, it would have a greater value. I 
 assumed that there were enough women who would 
 prefer to wear clothes made under sanitary and fair con- 
 ditions to give the preference to such garments. At 
 present, the power of the consumer is not effectively 
 utilized to affect sanitary and other working condi- 
 tions. My thought was the same in general as the one 
 underlying the National Consumers' League. Indeed 
 that organization was quick to encourage us by offering 
 cooperation. Instead of a union label imder the con- 
 trol and disposition of the vmion, it seemed to me that a 
 joint label issued under the supervision of the triangular 
 
 216 
 
THE WHITE PROTOCOL LABEL 217 
 
 board, the representatives of the public, the workers 
 and the employers, could be transformed into a commer- 
 cial as well as a social asset. It should not be made com- 
 pulsory. It should be available to all manufacturers who 
 meet the conditions tmderlying its issuance. 
 
 Then, if the women of the coimtry instead of expressing 
 sympathy with the garment workers only at times of 
 strike, could be induced regularly to apply their power 
 at the really effective point, namely the moment of 
 purchase of the garment, we should secure a really prac- 
 ticable way of meeting the competition of the below 
 standard manufacturer. Before the National Conference 
 of Charities and Corrections at Cleveland in June, 1912, 
 I laid the matter out as follows: 
 
 The responsibility for the existence of conditions that 
 are unsafe for the worker is a responsibility resting upon 
 the entire community. It should be shifted neither to the 
 shoulders of the employers nor to the workers, nor to 
 both combined. The pubKc itself is responsible. If 
 women's wear is manufactured under such conditions as 
 to make for unsound men and women, society as a whole 
 is responsible. It seems to the writer that before we get 
 right standards of living for the community, the whole 
 basis of purchase by the consumer must be changed, and 
 he believes that the time is almost at hand when this 
 would seem practicable. The present basis of purchase 
 is, as it has been for centuries, almost wholly a matter of 
 price and adaptability to use. The question that the 
 buyer asks is, how cheap is the garment and does it fit. 
 
2l8 LAW AND ORDER IN INDUSTRY 
 
 The result of this is a demand on the part of the public 
 for "bargains" and inevitably leads to an attitude on the 
 part of the retailer of entire indifference to the condi- 
 tions or surroundings under which the garment is made. 
 The most scrupulous buyer of a department store must 
 shut his eyes to the environment under which the gar- 
 ment is made. He concerns himself solely with the 
 question of price and the style, texture and work in the 
 product. Whether it contain germs of disease, or has 
 injured the operative in the making, must concern Vii'm 
 not at all. The result is pressure upon the manufacturer 
 from the consumer's end — to manufacture as cheaply as 
 possible, regardless of the conditions under which the 
 worker operates, and from the same consuming public 
 pressure from another direction — higher wages and 
 shorter hours for the worker. There is justice in the plea 
 of the enlightened manufacturer that he is being squeezed 
 between two opposing forces and that he is penahzed 
 whenever he attempts to raise conditions. The remedy 
 would seem to be at hand if all of the parties would 
 agree to it, that is, the employer, the employee and the 
 pubKc. It is this. Whenever complete and regular 
 inspection of an industry is under way by all three par- 
 ties, as in the cloak industry, and certificates are issued 
 to shops maintaining adequate standards, the chain of 
 evidence should be carried one link farther — the garment 
 itself should be certified by the Board, so that the con- 
 sumer will know what garment is made under "Protocol" 
 conditions and what is not. An extensive advertising 
 campaign, conducted by both parties, would inevitably 
 educate the public to a realization of its responsibility 
 for the maintenance of unsanitary conditions. The re- 
 sponsibility from consumer to producer would be made 
 direct and real and could not be evaded. A label on each 
 
THE WHITE PROTOCOL LABEL 219 
 
 garment would furnish the purchaser with unmistakable 
 evidence of its conformance or non-conformance with 
 the standards of living maintained by the best in the 
 industry. Already in the cloak industry, the union is 
 making a campaign throughout the country for the 
 exclusion from the industry of what is called "Non- 
 Protocol" cloaks; that is to say, for the exclusion of 
 garments made in factories that have not come under the 
 Protocol. This work is ineffective now because there is 
 no way of furnishing the consumer with prompt and 
 satisfactory evidence of the facts concerning each gar- 
 ment. The retailer to-day is not called upon to distin- 
 guish between "Protocol" cloaks and "Non-Protocol" 
 cloaks. Looking at the situation critically, it would seem 
 that the work of controlling the label is no more difi&cult 
 than the work of controlKng the shop. It is a mere exten- 
 sion of the principle of certification.* 
 
 The idea gained favor with manufacturers and union 
 leaders. When it was first presented, it met with the 
 general approval of the leading cloak manufacturers. 
 It was opposed by the imion leaders. Gradually, they 
 began to see its value, imtil in 1913, when in drawing 
 the Protocol in the dress and waist industry, I secured 
 the acceptance of both sides to the following: 
 
 To make more effective the maintenance of sanitary 
 conditions throughout the industry, to insure equality of 
 minimum standards throughout the industry, and to 
 guarantee to the public garments made in the shops 
 certificated by the Board of Sanitary Control, the parties 
 
 * " Control of Sanitary Standards," published by National Conference 
 of Charities and Corrections, 191 2. 
 
220 LAW AND ORDER IN INDUSTRY 
 
 agree that there shall be instituted in the industry a 
 system of certificating garments by a label to be aflSxed 
 to the garment. Recognizing the difl&culties of working 
 out the details of such a plan at this time, but believing 
 that the plan has been sufficiently developed and con- 
 sidered in the Cloak Industry, they beheve that a com- 
 plete plan can be worked out in the Dress and Waist 
 Industry within a year. To this end each party agrees 
 to cooperate to the full extent of its power in the formu- 
 lation and effectuation of a system for the certification of 
 garments adequately safeguarding the employers, the 
 workers, and the consuming public* 
 
 In 1915, the Board of Arbitration in the Cloak In- 
 dustry, reviewing the difi&culties of that industry, and 
 mindful of the necessity for equal enforcement of stand- 
 ards through the industry, said: 
 
 We are dealing specifically with the problems of only a 
 part of the garment trade; but your problems are in large 
 measure the problems of all industry. You are leaders in 
 the attempt to work out these problems, and are entitled 
 not only to the sympathetic consideration, but to the 
 help of the rest of the community. Protocol conditions 
 are conditions which the community desires to have 
 established generally. There are scarcely any, whether 
 employers or employees or consumers, who do not wish to 
 accomplish exactly what those who are in this industry 
 are seeking to accomplish by way of bettering the rela- 
 tions of employer and employees. Some method ought 
 to be devised of enlisting the cooperation of the com- 
 munity in the great and difl&cult task of working out 
 
 * Protocol of Peace in the Dress and Waist Industry, January i8, 1913. 
 
THE WHITE PROTOCOL LABEL 221 
 
 these problems. The Protocol label has been suggested 
 as one of the means of accomplishing such cooperation. 
 However valuable the suggestion, it is obvious that its 
 practical application is a matter of great but not of 
 insuperable difficulty.* 
 
 The label has not yet been established. It waits for 
 public sentiment. It will not bring the millennium. Its 
 efl&cacy will depend almost entirely upon the consuming 
 public. If the women of the country would to-morrow 
 with one voice say, "We will not wear clothes that are 
 made under imsanitary conditions and unless we are cer- 
 tain that the workers who have them receive proper 
 wages and fair treatment," they would accomplish in 
 twenty-four hours a bloodless revolution. They would, 
 by this one act, save enough waste in strikes and lock- 
 outs, ultimately to reduce the cost of their garments and 
 would, at the same time, raise working conditions higher 
 than aU the state and local Factory and Health Boards 
 have done in twenty years. No manufacturer could af- 
 ford to do without the label — no department store could 
 sell any other than labelled garments. We should be cer- 
 tain, too, that neither association nor union would be un- 
 reasonable or arbitrary or anarchical. The public would 
 be represented and would bring pressure to bear where 
 it was justified. The Board of Arbitration would have a 
 sheriff, and the withdrawal of the label (after fair hearing) 
 * Decision of Board of Arbitration, January 21, 1915. 
 
222 LAW AND ORDER IN INDUSTRY 
 
 would be sufficient enforcement of a decision, and would 
 be as effective against the non-association employer as 
 association discipline is now effective against the associa- 
 tion member. 
 
 In Chapter VII, in reviewing the Chicago experience, 
 we set down the following tentative hypothesis: 
 
 The consumer is an important factor in the problem. 
 Of course, care must be taken to prevent fraud in the 
 use of the label, and to see to it that it acquires its full 
 value through thorough and systematic advertising. If 
 it received the support of the women of the coimtry 
 the additional fee for each label would bring in more 
 than enough to pay for all the advertising and the main- 
 tenance of the machinery of administration. 
 
 To-day there is no machinery for enforcing standards 
 throughout the entire industry. The shop strike, the 
 general strike is futile. 
 
 In the August Garment Worker (immediately follow- 
 ing the adoption of the recommendations of the Mayor's 
 Coimcil) appears the following: 
 
 EQUALIZING CONDITIONS THROUGHOUT THE COUNTRY 
 
 The need of equalizing conditions throughout the 
 coimtry is as great as ever, and President Schlesinger 
 intends forthwith to start on an organizing tour to 
 Middle Western centers of our industry to supervise 
 urgent movements for better conditions.* 
 
 * The Ladies' Garment Worker, August, 191S1 pp. Sj 6. 
 
THE WHITE PROTOCOL LABEL 223 
 
 Who should be against the Protocol label? Those who 
 believe in the power or force theory — those unionists 
 and those employers who each have the same fear — the 
 fear of the consequence of joining permanently in the 
 establishment of a joint asset and who prefer " the good 
 old " pre-Protocol days? Of course, there may be de- 
 partment store managers so short-sighted as to fear the 
 consequences to them of this control of the industry 
 by the worker, the manufacturer and the consumer. 
 But the wise and far-sighted department store manager 
 will think dififerently. It took a long time for adver- 
 tisers of meritorious wares to realize that telling the 
 truth had a commercial value. It has taken a long time 
 for advertising medimns to realize that publishing truth- 
 ful advertisements was of commercial value. Now we see 
 a New York daily building up its entire advertising power 
 through: first, its guarantee of the complete truthfulness 
 of representations made in its columns by advertisers, 
 and secondly, by a campaign generally against fraudu- 
 lent advertising. Another is specializing in foods, giving 
 the strength of its approval to such as stand the test 
 of its own investigation and attacking those who fall 
 below standard. The first department store head who 
 will thoroughly realize the commercial value of squarely 
 meeting the demand of the consumer for garments made 
 under sanitary and fair conditions, will secure a reputa- 
 tion and standing that will put him in advance of his 
 
224 LAW AND ORDER IN INDUSTRY 
 
 competitor. The first mail-order house that offers to 
 the country shirt waists certified to by representatives 
 of the workers, the employers and the consumers as 
 having been made imder sanitary and fair conditions, 
 will establish a tremendously valuable clientele. A little 
 specialty house in the retail dry goods district of New 
 York found it to advantage to put in its advertisements: 
 "A member of the Dress and Waist Manufacturers' As- 
 sociation. Garments made under sanitary conditions." 
 
 The White Protocol label is more than a consumer's 
 label. It is a producer's label. If it be true that more 
 than seventy-five per cent of the garments are worn by 
 working men and working women, are they not interested 
 in the maintenance of sanitary and fair conditions of 
 work? It is more than the union label, for the reason 
 that it is not a dispensation by the union, based upon a 
 determination made by the union. 
 
 Here, then, is something to consider and weigh. If the 
 public is interested in preserving peace in industry and 
 seciulng the welfare of working people, why should it 
 not make its great power effective? The Chicago brand 
 gave to the clothing concern the power to meet its com- 
 petitors effectively. Why not create a brand that con- 
 sumers wUl award to those who observe the law and thus 
 make society's aim square with the aim of legitimate 
 business? 
 
CHAPTER XXI 
 
 A FEDEEAL INDUSTRIAL COUNCIL 
 
 Study of the proceedings and report of the Industrial 
 Council of Great Britain* led me to the conviction that 
 at the root of the difficulty in both the making and ob- 
 servance of joint agreements lay the problem of equal 
 enforcement of standards throughout the industry. I 
 found that the Council had considered various methods 
 proposed, and that on the whole, the best opinion seemed 
 to be (as quoted on p. 202) in favor of extending the 
 standards by law to cover the entire industry. J. Ram- 
 sey MacDonald in 1912 introduced in Parliament a Bill 
 (Appendix E) covering the Port of London, which pro- 
 vided that where an agreement was "come to volunta- 
 rily" by employers and workmen, and covered sufficient 
 numbers, the standards of wages, or hours, or conditions 
 of employment should be "the implied terms of every 
 contract for employment of a workman in the Port of 
 London." The bill, though hardly in form to meet the 
 requirements of our Constitution, furnished the basis for 
 a tentative recommendation I submitted to the United 
 
 * Bulletin 133, U. S. Department of Labor. 
 22s 
 
226 LAW AND ORDER IN INDUSTRY 
 
 States Industrial Relations Commission in 1914 (Ap- 
 pendix F). 
 
 It seemed to me that if, imder the jurisdiction of Con- 
 gress over interstate commerce, we could create a national 
 industrial board, constituted of leading trades unionists, 
 employers and public men and women, we should find a 
 method for applying intelligently and cpnstantly to trade 
 agreements the force of public opinion and at the 
 same time utilize Federal power in making such agree- 
 ments "voluntarily come to" binding upon the xmscrupu- 
 lous and illegitimate minority employer. Such a board 
 could at any time, at the instance of either party, review the 
 conduct of both parties and make findings based thereon. 
 If the agreement were in the public interest and the 
 Board so certified, its certificate could be made presump- 
 tive evidence of good faith protecting both parties against 
 harassing litigation. In addition, the failure of either 
 an employers' association or a trades union to observe 
 the agreement would result in public disapproval and be 
 sufficient ground for refusal to approve subsequent agree- 
 ments. The trades union or employers' association which 
 observed treaties would be encouraged, and the other 
 kind gradually driven out. In addition, to make the 
 standards "voluntarily come to" of a clear majority 
 of the industry on both sides binding upon all in the in- 
 dustry and to do it by law, instead of by force — after 
 full opportunity for hearing to the minority — seemed to 
 
A FEDERAL INDUSTRIAL COUNCIL 227 
 
 be a more rational way of getting and maintaining de- 
 cent standards. As to hours of labor, such action by the 
 Board would be in the nature of legislation fixing con- 
 ditions of labor, and as to minimmn standards of wages 
 would be in nature the same as the action of minimum 
 wage boards. As to the constitutionality of such an 
 act with reference to wage standards for men, though I 
 am familiar with the decisions adverse, I believe that 
 even here the time is coming when this kind of legislation 
 will be upheld. (Although the courts have sought to 
 distinguish between men and women upon the ground of 
 the physical dififerences in sex, there seems to me to be 
 no inherently sound legal reason for denying to men the 
 same protection that is granted to women.*) Since the 
 recommendation was made, there has been created the 
 Federal Reserve Board, with broad supervisory powers 
 over our banking institutions, and a Trade Commission 
 with similar supervision over trade agreements. We 
 have abready come to the time when we freely acknowl- 
 edge the right of the entire country to insist that no part 
 shall break down through interstate commerce the living 
 standards necessary for the protection of the whole 
 people. This is the basis of our Federal pure food and 
 health laws, and we shall ultimately apply the same 
 reasoning to laws regulating the working conditions of 
 
 * The prindples of " Fatigue and Efficiency " (Goldmark) apply to 
 men as well as to women. 
 
228 LAW AND ORDER IN INDUSTRY 
 
 labor. If we give the principal factors in each industry, 
 i. e., the majority employers and the majority workers the 
 first say, by permitting them to come to joint agreements 
 volimtarily, and then guarantee them against the un- 
 dermining of standards by unscrupulous competitors, 
 we shall be rendering the entire country a real service. 
 We shall hasten the day of industrial welfare as well 
 as industrial peace. The outline submitted to the In- 
 dustrial Relations Commission is not submitted here as a 
 final plan, nor is it the purpose of this chapter to make 
 immediate propaganda for it. I am conscious that we 
 are a long way oflf from an exact piece of legislation upon 
 the subject. But the realization that it took us more 
 than half a century to work out sound currency legisla- 
 tion makes me confident that some day there will come 
 Paul Warburgs into industry who will find the means of 
 preventing the losses of industrial warfare as in the enact- 
 ment of the Federal Reserve Act we have prevented the 
 losses of financial panics. The suggestion is reprinted 
 for reflection. If it inspires others to think in the same 
 general direction, it will have accomplished its purpose. 
 
 We must not rest content with present alternatives. 
 
 We must invent new ways. If we have not yet found 
 the right ones, we must try until we do find them. But 
 we must not wince if the facts as we face them are not 
 wholly to our liking. 
 
CHAPTER XXII 
 
 VISION AND EFFORT 
 
 The man of reflection, detached from interest or ac- 
 tivity in a given social or poKtical situation, has the ad- 
 vantage of long-range perspective and by virtue of his 
 detachment and disinterestedness may be a safe guide. 
 But if the man of action pays the penalty of short range 
 vision, he at least has a firmer base in the intimate knowl- 
 edge of the factors of the situation. The true combina- 
 tion for statesmanship is, of course, to be found in an 
 alignment of both. 
 
 Of the students of industrial problems, those who 
 speak with the authority of deep reflection agree that 
 progress lies in the direction of greater industrial de- 
 mocracy. John Graham Brooks, after a review of Ameri- 
 can Syndicalism, writes that the remedy for lawlessness 
 and the way to peace and welfare of aU concerned is in 
 " the open, declared purpose to admit labor to manage- 
 ment first at safe and possible points" — ^note the quali- 
 fying words — "with aU that this means of banished 
 secrets; to admit it fearlessly and with no reserves as 
 far as labor proves its fitness; * we then and there connect 
 
 * Italics ours. 
 229 
 
230 LAW AND ORDER IN INDUSTRY 
 
 ourselves with the cooperative regime." This, he says, 
 "does not close the fist, it opens the arms." And to 
 adopt this policy of including labor "in the control of 
 business" requires not only that we give it "every 
 opportunity of training to this end" but wiU require 
 "the severe schooling of a century." I agree with him 
 in his estimate of time. "But," says Professor Brooks, 
 "every strong man who openly sets his face that way, 
 who tries consentingly and forbearingly to prove the 
 policy wise is the helper to whom we look." * 
 
 Two other clever students, Englishmen (Watney and 
 Little) write in a book entitled "Industrial Warfare" that 
 "Industrial unrest cannot be treated as an isolated irre- 
 sponsible manifestation." True. ..." it assimies spe- 
 cific forms according to its local conditions, and more 
 particularly to its method of treatment by those who have 
 the power to influence it." So we find in the experiences 
 dealt with in this book. "Nothiag," say they in England, 
 "can do more harm to the body politic than a policy 
 of unreflecting and intractable hostility from above to the 
 impulses and aspirations from below; you cannot with 
 safety — and the truism is so apt that it barely needs 
 apology — 'sit on the safety valve.'" Quite right. 
 Now observe the complementary thought: "At the 
 same time, nothing can do less harm to it than the policy 
 of unreflecting and uncompromising hostility from below 
 
 * John Graham Brooks: "American Syndicalism," p. 252. 
 
VISION AND EFFORT 23 1 
 
 to the just claims and due recognition of the great 
 directing and controlling influences in the business of the 
 country, provided the latter realize that, with the devel- 
 opment of thought and the advancement in the popular 
 ideals of happiness and comfort, has come a greater and 
 legitimate desire on the part of the worker for better 
 all-round opportimities for both himself and his class."* 
 Mr. Brandeis certainly has had opportunity for both 
 long and short range observation. Called as an expert 
 before the Industrial Relations Commission, he expressed 
 the opinion that industrial unrest never could be re- 
 moved, "and fortunately never can be removed, by 
 mere improvement of the physical and material condi- 
 tion of the working man"; that we must bear in mind 
 all the time that no matter how much one may wish 
 for material improvement and must desire it for the indi- 
 vidual's comfort, "we are a democracy" and therefore, "we 
 must have, above all things, men." And, accordingly, he 
 believes that it is towards the development of manhood 
 that any industrial or social system must be directed. 
 Not only are we committed, in our country, Mr. Brandeis 
 told the Commission, to "social Justice in the sense of 
 avoiding things which bring suffering and harm and un- 
 equal distribution of wealth; but we are committed 
 primarily to democracy, and the social justice to which 
 we are headed is an incident of our democracy, not an 
 * Charles Watney and James A. Little: " Industrial Warfare," pp. 8, 9. 
 
232 LAW AND ORDER IN INDUSTRY 
 
 end itseK. It is the result of democracy, but democracy 
 we must have." * Therefore, said Mr. Brandeis, we must 
 recognize industrial democracy "as the end to which we 
 are to work." And that means to Mr. Brandeis what it 
 means to Professor Brooks, "the problems are not any 
 longer, or to be any longer, the problems of the employer. 
 The problems of his business — ^it is not the employer's 
 business." f This same thought was in the minds of a 
 group of ministers and leading citizens of New York,J 
 who said to a group of (men's, not women's) clothing 
 manufacturers in 191 2 who refused to confer or arbitrate 
 with the union: "You seem to think that your particular 
 business, and the capital you have therein invested, 
 should be your main consideration; whereas the public, 
 while desiring your welfare, insists also that you shall 
 take such steps as are necessary to secure conditions which 
 are now recognized as indispensable in those industries 
 where employers and employees are at peace. Such 
 being the present state of the public mind, is it not for 
 your own interest to be more forward in taking such 
 steps as the public now expects of you? " § Mr. Brandeis 
 said also — doubtless influenced by his experience as 
 
 * Italics ours. 
 
 t Report of Federal Commission on Industrial Relations (1915)1 
 pp. 83-84. 
 
 t Drs. George William Douglas, Frank Oliver Hall, George U. Wen- 
 ner, Henry E. Cobb, John Haynes Holmes, Rabbis Samuel Schulman 
 and Stephen S. Wise. 
 
 § Evening Post, February 20, 1913. 
 
VISION AND EFFORT 233 
 
 chairman of the Arbitration Board in our industry — 
 "The union cannot shift upon the employer the respon- 
 sibility for the conditions, nor can the employer insist 
 upon solving, according to his will, the conditions which 
 shall exist; but the problems which exist are the problems 
 of the trade; they are the problems of employer and 
 employee." * He was repeating here what he had fre- 
 quently said as chairman of our Board of Arbitration. 
 The ministers and leading citizens said to the clothing 
 manufacturers: "And why should you not organize 
 also a proper system for settling the daily questions be- 
 tween your workers and yourselves in a manner which is 
 thoroughly modern, and takes cognizance of the trade 
 conditions, both here and in competing markets, which 
 must be considered in order to preserve and develop your 
 business in this city, of which all true citizens desire to 
 be proud? And further, when questions arise which are 
 too large to be settled by this method in your own shops, 
 why should you not arrange to refer them to a board 
 operating somewhat on the arbitration system of the 
 Chamber of Commerce? " t 
 
 Thus is set in apparent conflict the view of the man of 
 vision with the man of daily business. The man of 
 vision sees not in the remote distance, but in the im- 
 mediate present the approach — the inevitable approach 
 
 * Report of Federal Commission on Industrial Relations (1915). ?• 84. 
 ^Evening Post, February 20, 1913. 
 
234 LAW AND ORDER IN INDUSTRY 
 
 of industrial democracy. The man of daily business 
 sees ahead only the shoals and rocks upon which industry 
 may be wrecked. How shall we reconcile them? For 
 reconciled they must be if progress is to be made. Rec- 
 onciliation of these views is statesmanship in industry. 
 It was Lloyd George's job in England^ — a thankless one 
 at best. We shall be obliged to record repeated failure 
 before we succeed. 
 
 Writing in 1866 (just after our Civil War), Lord Acton, 
 realizing that "the experience of the Americans is nec- 
 essarily an impressive lesson to England," wondered 
 whether the Americans would be successful in revers- 
 ing "the verdict of history," "that that which ancient 
 Rome and modern France attempted and failed to ac- 
 complish is really impossible; that Democracy, to be 
 consistent with liberty, must subsist in solution and com- 
 bination with other qualifying principles, and that complete 
 equality is the ruin of liberty, and very prejudicial to the 
 most valued interests of society, civilization and religion." * 
 
 * If they (the Americans) could demonstrate that to be possible which 
 was deemed a chimera, because it is contradicted by the experience of 
 ages, — ^if they showed us that the objects aimed at by our political and 
 social system may be enjoyed still more amply without the penalty 
 which Europe has always paid, in the shape of so much iniquity and 
 so much suffering, by irresponsible authorities, sanguinary wars, and 
 wanton injury, in the oppression of class by class, of race by race, and of 
 religion by religion, — in the elaborate, deliberate, intentional degrada- 
 tion of the weaker party, for reasons of state, or religious zeal, or by the 
 pride of blood, or by the blind and resistless action of superior wealth 
 and force — if they could exhibit to the world the spectacle of a coimtry 
 
VISION AND EFFORT 235 
 
 In fifty years the idea of political democracy has found 
 deeper roots in England than Lord Acton ever expected. 
 In the Far East, in China, political democracy as an ideal 
 takes root but fails to live. If recent experiences have 
 taught us anything, it is the lesson that to apply ideals, 
 without taking account of the actual facts, spells failure. 
 Our own American political scientist, called as expert 
 adviser by the Chinese Government, says: "China's 
 history and traditions, her social and economic conditions, 
 her relations with foreign Powers, aU make it probable 
 that the country would develop that constitutional 
 government which it must develop if it is to preserve its 
 independence as a State more easily as a monarchy than 
 as a republic." * But we need not go to China for our 
 lessons in the failures of democracy. We have failed in 
 municipal politics and we know that we have failed. We 
 are gradually learning to understand why we failed. We 
 have failed in state politics. Our late senior Senator f in 
 his keen analysis of the ejEfect of "invisible government" 
 upon state management furnished no new information 
 
 as extensive as Russia, as secure from aggression as France, as intellec- 
 tual as Germany, as free and as obedient to law as Great Britain, cursed 
 with no restrictions on personal freedom, without fleets or armies, with- 
 out pauperism or national debt, — if, in short, America could give the 
 light without the shade of political life, then I beheve that the venerable 
 institutions of European polity would go down before that invincible 
 argimient. Lord Acton: "Historical Essays and Studies," Chapter IV; 
 "The Civil War in America," pp. 125, 126. 
 
 * Prof. Frank L. Goodnow: New York Sun, September 27, 1915. 
 
 t Elihu Root: Constitutional Convention, New York, 1915. 
 
236 LAW AND ORDER IN INDUSTRY 
 
 to the reformer who has actual experience in poKtics. 
 Frankly facing all of these known failures in political 
 democracy, we go on with our faith as we did before 
 Lord Acton wrote, and as we did afterwards — some- 
 times we go on with but Stevenson's 
 
 HaK of a broken hope for a pillow at night 
 
 That somehow the right is the right 
 
 And the smooth shall bloom from the rough. 
 
 With our failures in industrial democracy, we act dif- 
 ferently. If the scheme does not work one hundred per 
 cent perfect, we abandon our whole faith. Why? There 
 is a difference. We accept political democracy as some- 
 thing fixed; something here and now, never to be aban- 
 doned as an ideal and to be wrestled with in practice; to 
 be worked out at whatever cost; and we accept industrial 
 democracy as nothing but a dream of the future. We 
 have no fixed public policy on the subject. Not until 
 individual men are thrown into the vortex of a huge 
 industrial conflict — ^until they grip the very vitals of 
 industry — do they realize the nearness of a new order of 
 industrial society and their utter unpreparedness for it. 
 The average employer knows nothing about "industrial 
 democracy." To him it spells nothing but Socialism, 
 with a capital "S." "Let everybody mind his own busi- 
 ness and I will mind mine," says he. The intrusion of 
 social workers, literary gentlemen, religious leaders, into 
 
VISION AND EFFORT 237 
 
 his labor difficulties, is to him utterly uncalled for. "We 
 know our business better than these ladies and gentlemen. 
 Why don't they leave us alone? " The truth is that the 
 employer who knows nothing and cares less about "in- 
 dustrial democracy," and sticks to it, is the most con- 
 sistent and logical of aU. He starts with but one simple 
 object — that is, profits — and he persists. Labor, like 
 material, is for him regulated by the "law of supply and 
 demand." If he drives hard bargains with his customers, 
 he sees no reason for not doing the same with his workers. 
 When the workers organize into a union it is against his 
 interest. It gives them a power with which to oppose 
 his power. Therefore, quite consistently, he turns his 
 attention to preventing the formation of such an organ- 
 ization. And if spies or law breaking are necessary to 
 accomplish the result, why, of course, he must not be 
 squeamish about it. It is the employer of imagination, 
 of education, who carries, in industry as elsewhere, the 
 pains of birth in bringing forth new ideas and new in- 
 stitutions. For example, once he accepts the principle 
 that workers, like employers, have the right to organize 
 and deal collectively, he is gone — as we have seen both 
 in Chicago and in New York. If he starts forward, he 
 can never turn back, no matter what the cost. And 
 he win find cold comfort in much of the company of his 
 colleagues. 
 Recent studies are to the effect that the savage is our 
 
238 LAW AND ORDER IN INDUSTRY 
 
 mental equal. "One may display as much intelligence 
 in tracking a kangaroo through the bush as in solving a 
 problem in algebra." * The difference between the 
 civilized man and the savage is in the imagination. 
 "Civilized races are progressive and their systems of 
 thought and life are changing, but the savage prefers to 
 remain fixed in the culture of a long past age, which, 
 conserved by the inertia of custom and sanctified by 
 rehgion, holds him helpless in its inexorable grasp. Im- 
 agination rules the world, and the world to the savage is 
 dominated by a nightmare of tradition. . . ." When a 
 man of imagination steps in among the Fijis, the wonder 
 is that they do not eat him alive. It is the man of 
 imagination in industry whom we must help, whose bur- 
 dens we must lighten, for upon him depends much of the 
 progress to be made in the immediate future. Let us 
 then frankly admit that we are, in truth, imprepared for 
 the new order of industry. Let us seek, so far as prac- 
 ticable, to avoid repetition in industry of the costly 
 failures of democracy in politics. We do not need the' 
 lesson of far-off China to teach us. It does not pay in the 
 long run to travel faster than existing economic and psycho- 
 logical conditions will warrant. 
 
 If the United States Commission on Industrial Re- 
 lations had but given us a full and complete survey of 
 the experiences of this country in collective bargaining 
 
 * "History of Fiji," Dt. A. G. Mayer, Popular Science Monthly, 1915. 
 
VISION AND EFFORT 239 
 
 to match the report of the Industrial Council of Great 
 Britain upon the same subject, we should have had a 
 larger background of experience for our perspective. 
 However, the experiences reviewed in these pages may 
 at least contribute an approximate inventory of failure 
 and success in one difi&cult and complex industry from 
 which we may learn. Let us enumerate roughly : — 
 
 The General Strike eliminated. 
 
 The "Closed Shop" eliminated. 
 
 The judicial and legislative method of determining 
 controversy accepted. 
 
 The value of organization on both sides appreci- 
 ated. 
 
 Better sanitary and working standards. 
 
 Success in joint effort where the effort is whole-hearted. 
 Failure where it is not. 
 
 Success in applying new institutions based upon Law 
 and Order. 
 
 Elimination of the "right to the job." 
 
 Recognition of "efl&ciency and economy as a duty of 
 worker as well as employer in industry." 
 
 Failure to equalize competitive labor conditions. 
 
 Failure to eliminate sporadic shop strikes. 
 
 Failure to secure whole-hearted and mutual endorse- 
 ment of the plan by both organizations. 
 
 In 1910 the cloak industry of New York fights out the 
 "closed shop" issue. The modus vivendi of the "preferen- 
 
240 LAW AND ORDER IN INDUSTRY 
 
 tial union shop" then adopted makes peace possible in 
 Chicago, in Boston, in Philadelphia and in seven or 
 eight other industries. 
 
 In 1915 the cloak industry of New York fights out the 
 battle over "the right to the job." The solution (the 
 findings of the Mayor's Council of ConciHation) furnishes 
 the basis of settlement in other cities.* 
 
 Thus the industry suffers that others may progress. 
 Its very failures help to make for progress. The verdict 
 must be that the experiences were successful — are now 
 successful. If the business results were not as good as 
 the sanitary and social results, it meant that we had not 
 yet found the complete harmonization of aU the ideals 
 nor the perfect modus vivendi. But shall we not be en- 
 couraged by our great successes (considering the difficul- 
 ties) almost beyond our dreams? 
 
 The further experiences of this industry, like those of 
 the past five years, must be of profit to the industries of 
 this and other countries. Effort must be made — constant 
 effort. Vision and faith alone wiU not suffice. Invention 
 of new methods — constant attention to all the factors of 
 the problem — or we shall go back as certain as without 
 similar effort we shall go back in our poUtics. There is 
 one safe rule — not to deceive ourselves. Bravely to set 
 failure side by side with success. And when all is in- 
 
 * Chicago agreement, Women's Wear, September 27, 1915 — Boston 
 agreement, Women's Wear, September 22, 1915. 
 
VISION AND EFFORT 241 
 
 ventoried, both the failures and the successes, to retain 
 the faith of the men of vision — for blundering though 
 our steps may be, their light does shine and must lead on. 
 We shall learn by doing. We cannot go back to savagery 
 in industry, whatever it costs to go forward. 
 
APPENDIX A 
 
 TEXT OF THE PROTOCOL AGREEMENT 
 
 Made September 2, 1910 
 
 Protocol of an agreement entered into this 2d day 
 of September, 1910, between the Cloak, Suit and Skirt 
 Manufacturers' Protective Association, herein called the 
 manufacturers, and the following locals of the Inter- 
 national Ladies' Garment Workers' Union, namely: 
 Cloak Operators' Union No. i. Cloak and Suit Tailors' 
 No. 9, Amalgamated Ladies' Garment Cutters' Associa- 
 tion No. 10, Cloak and Skirt Makers' Union of Browns- 
 ville No. II, New York Reefer Makers' Union No. 17, 
 Skirt Makers' Union No. 23, Cloak and Skirt Pressers' 
 Union No. 35, Buttonhole Makers' Union of New York 
 (Local No. 64), Cloak and Suit Pressers of Brownsville 
 No. 68, hereinafter called the unions. 
 
 Whereas differences have arisen between the manu- 
 facturers and their employees who are members of the 
 unions with regard to various matters which have re- 
 sulted in a strike, and it is now desired by the parties 
 hereto to terminate said strike and to arrive at an 
 understanding with regard to the future relations be- 
 tween the manufacturers and their employees, it is 
 therefore stipulated as follows: 
 
 First. So far as practicable, and by December 31, 
 1910, electric power be installed for the operation of 
 machines, and that no charge for power be made against 
 any of the employees of the manufacturers. 
 
 243 
 
244 APPENDIX A 
 
 Second. No charge shall be made against any em- 
 ployee of the manufacturers for material except in the 
 event of the negligence or wrongful act of the employee 
 resulting in loss or injury to the employer. 
 
 Third. A uniform deposit system, with uniform de- 
 posit receipts, shall be adopted by the manufacturers, 
 and the manufacturers will adopt rules and regulations 
 for enforcing the prompt return of aU deposits to em- 
 ployees entitled thereto. The amount of deposit shall 
 be$i. 
 
 Fourth. No work shall be given to or taken to em- 
 ployees to be performed at their homes. 
 
 Fifth. In the future there shall be no time contracts 
 with individual shop employees, except foremen, de- 
 signers, and pattern graders. 
 
 Sixth. The manufacturers will discipline any member 
 thereof proven guilty of unfair discrimination among his 
 employees. 
 
 Seventh. Employees shall not be required to work 
 during the ten legal holidays as established by the laws 
 of the State of New York; and no employee shall be 
 permitted to work more than six days in each week, those 
 observing Saturday to be permitted to work Sunday in 
 Ueu thereof; all week workers to receive pay for legal 
 holidays. 
 
 Eighth. The manufacturers will establish a regular 
 weekly pay day and they will pay for labor in cash, and 
 each piece worker will be paid for all work delivered as 
 soon as his work is inspected and approved, which shall 
 be within a reasonable time. 
 
 Ninth. All subcontracting within shops shall be 
 abolished. 
 
 Tenth. The following schedule of the standard mini- 
 mum weekly scale of wages shall be observed : 
 
TEXT OF THE PROTOCOL AGREEMENT 245 
 
 Machine cutters $25 
 
 Regular cutters 25 
 
 Canvas cutters 12 
 
 Skirt cutters 21 
 
 Jacket pressers 21 
 
 Underpressers 18 
 
 Skirt pressers 19 
 
 Skirt underpressers 15 
 
 Part pressers 13 
 
 Reefer pressers 18 
 
 Reefer underpressers 14 
 
 Sample makers 22 
 
 Sample skirt makers 22 
 
 Skirt basters 14 
 
 Skirt finishers 10 
 
 Buttonhole makers, class A, a minimum of $1.25 per 
 
 100 buttonholes. 
 Class B, a minimum of 80 cents per 100 buttonholes. 
 As to piecework, the price to be paid is to be agreed 
 upon by a committee of the employees in each shop, and 
 their employer. The chairman of said price committee 
 of the employees shall act as the representative of the 
 employees in their deahngs with the employer. 
 
 The weekly hours of labor shall consist of 50 hours in 
 6 working days, to wit, 9 hours on all days except the 
 sixth day, which shall consist of 5 hours only. 
 
 Eleventh. No overtime work shall be permitted be- 
 tween the 15th day of November and the 15th day of 
 January or during the months of June and July, except 
 upon samples. 
 
 Twelfth. No overtime work shall be permitted on 
 Saturdays except to workers not working on Saturdays, 
 nor on any day for more than two and one-half hours, 
 nor before 8 a. m. nor after 8.30 p. m. 
 
246 APPENDIX A 
 
 Thirteenth. For overtime work all week workers shall 
 receive double the usual pay. 
 
 Fourteenth. Each member of the manufacturers is to 
 maintain a union shop; a "union shop" being understood 
 to refer to a shop where union standards as to working 
 conditions, hours of labor and rates of wages as herein 
 stipulated prevail, and where, when hiring help, union 
 men are preferred; it being recognized that, since there 
 are differences in degrees of skill among those employed 
 in the trade, employers shall have freedom of selection 
 as between one union man and another, and shall not be 
 confined to any Kst, nor bound to follow any prescribed 
 order whatever. 
 
 It is further understood that all existing agreements 
 and obligations of the employer, including those to pres- 
 ent employees, shall be respected; the manufacturers, 
 however, declare their belief in the union, and that all 
 who desire its benefits should share in its burdens. 
 
 Fifteenth. The parties hereby establish a Joint Board 
 of Sanitary Control, to consist of seven members, com- 
 posed of two nominees of the manufacturers, two nomi- 
 nees of the unions, and three who are to represent the 
 pubhc, the latter to be named by Meyer London, Esq., 
 and Julius Henry Cohen, Esq., and, in the event of their 
 inability to agree, by Louis Marshall, Esq. 
 
 Said board is empowered to establish standards of 
 sanitary conditions, to which the manufacturers and the 
 unions shall be committed, and the manufacturers and 
 the unions obhgate themselves to maintain such stand- 
 ards to the best of their ability and to the full extent of 
 their power. 
 
 Sixteenth. The parties hereby establish a Board of 
 Arbitration to consist of three members, composed of 
 one nominee of the manufacturers, one nominee of the 
 
TEXT OF THE PROTOCOL AGREEMENT 247 
 
 unions, and one representative of the public, the latter 
 to be named by Meyer London, Esq., and Julius Henry 
 Cohen, Esq., and, in the event of their inability to agree, 
 by Louis Marshall, Esq. 
 
 To such board shall be submitted any differences 
 hereafter arising between the parties hereto, or between 
 any of the members of the manufacturers and any of 
 the members of the unions, and the decision of such 
 Board of Arbitration shall be accepted as final and con- 
 clusive between the parties to such controversy. 
 (,■ Seventeenth. In the event of any dispute arising 
 between the manufacturers and the unions, or between 
 any members of the manufacturers and any members of 
 the unions, the parties to this Protocol agree that there 
 shall be no strike or lockout concerning such matters in 
 controversy until full opportunity shall have been given 
 for the submission of such matters to said Board of 
 Arbitration, and in the event of a determination of said 
 controversies by said Board of Arbitration, only in the 
 event of a failure to accede to the determination of said 
 board. 
 
 Eighteenth. The parties hereby establish a Committee 
 on Grievances, consisting of four members composed 
 as follows: Two to be named by the manufacturers 
 and two by the unions. To said committee shall be 
 submitted all minor grievances arising in connection 
 with the business relations between the manufacturers 
 and their employees. 
 
 Nineteenth. In the event of any vacancy in the afore- 
 said boards or in the aforesaid committee, by reason of 
 death, resignation, or disability of any of the members 
 thereof, such vacancy in respect to any appointee by the 
 manufacturers and unions, respectively, shall be filled by 
 the body originally designating the person with respect 
 
248 APPENDIX A 
 
 to whom such vacancy shall occur. In the event that 
 such vacancy shall occur among the representatives of 
 the public on such boards, such vacancy shall be filled 
 by the remaining members representing the public in the 
 case of the Board of Sanitary Control, and in the case of 
 the Board of Arbitration both parties shall agree on a 
 third arbitrator, and in case of their inabiUty to agree, 
 said arbitrator shall be selected by the governor of the 
 State of New York. 
 
APPENDIX B 
 RULES AND PLAN OF PROCEDURE 
 
 Adopted by the Board of Grievances 
 
 Established under the Protocol of Peace between the 
 Cloak, Suit and Skirt Manufacturers' Protective Asso- 
 ciation and the various Local Unions represented by 
 the Joint Board. 
 
 For brevity, the Manufacturers' Association is herein 
 referred to as the "Manufacturers," the Local Unions 
 and Joint Board are referred to as the "Unions," and 
 where both parties are meant they are referred to as the 
 "Parties." 
 
 The Board of Grievances 
 
 I. Immediately upon the adoption of these rules and 
 plan of procedure, the members of the Grievance Com- 
 mittee, appointed pursuant to the Protocol of Peace, 
 shall constitute themselves into a Board, and shall there- 
 after be known as "The Board of Grievances." 
 
 Hereafter in these rules it will be referred to as the 
 "Board." 
 
 II. The Board shall immediately elect two chairmen, 
 one from each side, who shall preside alternately, for two 
 weeks. 
 
 249 
 
2SO APPENDIX B 
 
 Term of Office 
 
 III. These officers shall hold office for one year, or 
 until their successors are elected. 
 
 Office of Clerks 
 
 TV. The clerks shall hold office for one year or until 
 their successors are elected. Each clerk shall appoint as 
 many deputy clerks as shaU be required for the expe- 
 ditious transaction of the business of the Board. 
 
 Upon the written request of any members of the 
 Board of Grievances a committee of two, consisting of 
 members of the Board or clerks or deputy clerks, one 
 representing each side, shall visit any shop for the pur- 
 pose of ascertaining whether the provisions of the Pro- 
 tocol are being observed, and report on the conditions 
 of such shop to the Board. 
 
 V. A chairman shall preside at all meetings. 
 
 Quorum 
 
 VI. The Board shall consist of five members from 
 each side. Three members from each party (the Manu- 
 facturers and the Union) shaU constitute a quorum of the 
 Board. 
 
 Regular Meetings 
 
 VII. The Board shall meet regularly at designated and 
 appointed times and places once a week. Meetings may 
 be postponed by mutual consent and records of such 
 postponement shall be recorded on the minutes. 
 
rules and plan of procedure 251 
 
 Special Meetings 
 
 VIII. Special meetings of the Board shall be called 
 only in cases of emergency, or where prompt or imme- 
 diate action is necessary, and may be called by the 
 chairman of either side. 
 
 Calendar 
 
 IX. The Board shall have a regular calendar at each 
 regular meeting. The clerks shall prepare a calendar of 
 cases to be disposed of, and such cases shall be disposed 
 of in regular order, unless special rules be made by the 
 Board. 
 
 Order of Trial 
 
 X. Cases shall be placed upon the calendar in the 
 order in which they are received, i. e., in the order of the 
 date of the filing of the complaints. 
 
 Trials and Hearings 
 
 XI. No case shall be taken up by the Board until a 
 complaint is filed in writing. As soon as a complaint is 
 filed the clerks or their deputies shall make every effort 
 to adjust the controversies. If the clerks agree their 
 decision shall be binding on both parties, but either party 
 has the right to appeal to the Board if dissatisfied with the 
 decision of the clerks. If the clerks fail to agree on a 
 verdict, the complaint, together with the report of the 
 clerks, setting forth their findings as to the facts, shall 
 be presented at the next meeting of the Board. If the 
 reports of the clerks agree, the Board shall then dispose 
 of the matter. If issues are raised by the two reports, the 
 
252 APPENDIX B 
 
 case shall be placed upon the calendar for trial, and the 
 issues shall be the issues thus raised by the reports of the 
 clerks. At the time of trial both sides shall be heard and 
 both parties shall offer their proofs, and the Board shall 
 receive and consider them. The Board shall refer dis- 
 puted questions of fact to any sub-committee of the 
 Board, equally constituted from both parties, who shall 
 report their decisions in writing to the Board. If both 
 parties agree the decision shall be final; but in case any 
 question of principle is involved in the decision, the party 
 deeming itself aggrieved may take an appeal to the 
 Board of Grievances, which appeal shall be heard by the 
 Board of Grievances, as any other matter presented to 
 them. 
 
 Decisions 
 
 XII. A majority vote shall be necessary to a decision. 
 Both sides shall have an equal nmnber of votes. In the 
 event of a failure to arrive at such decision, the issues 
 undecided shall be immediately framed and presented to 
 the Board of Arbitration, as hereinafter provided. 
 
 Orders and Entries of Decisions 
 
 XIII. All decisions of the Board shall be reduced to 
 writing and orders thereon shall be entered by the clerks. 
 
 The filing of an order with the clerks shall constitute 
 notice to each party. 
 
 Duplicate Records 
 
 XrV. All records of the Board shall be kept in dupli- 
 cate by the clerks, one to be filed with the Manufacturers 
 and one to be filed with the Unions. 
 
rules and plan of procedure 253 
 
 Sanitary Matters 
 
 XV. The Board will not consider any grievances relat- 
 ing to sanitary conditions. These should be addressed to 
 the Board of Sanitary Control. 
 
 Wrongful Discharge of Employee or Discrimi- 
 nation 
 
 XVI. If the grievance arises because of the wrongful 
 discharge of an employee, or because of discrimination on 
 the part of the employer, the finding of the Board in favor 
 of the employee shall entitle him to back pay, in full, 
 during the period of his non-employment, pending hear- 
 ing and determination of the grievance. 
 
 Shop Strike, Lockout or General Refusal to Work 
 
 XVII. If a grievance arises because of the general 
 stoppage of work of a shop or department of a shop, either 
 by direction of the employer or because of or by the 
 concurrent action of the employees, upon complaint re- 
 ceived, the clerks, or their deputies, shall immediately 
 proceed to the shop or department where the trouble 
 occurs. If the employer is responsible for the stoppage, 
 he shall, upon the demand of the clerks, or their deputies, 
 immediately recall all his employees, pending the adjust- 
 ment by the Board of any grievance he may have, and he 
 shall thereupon frame and present his grievance; if the 
 employees are responsible for the stoppage, notice shall 
 be immediately given to them to return to work pending 
 adjustment of the grievance by the Board and the 
 chairman of the Price Committee shall immediately 
 direct them to return to work. 
 
254 APPENDIX B 
 
 Violation of Paragraph XVII of the Peace Pro- 
 tocol 
 
 XVIII. A violation of the provision of Section XVII 
 of these rules or of Section XVII of the Protocol, by 
 either employer or employee, shall constitute a grievance 
 to be presented to the Board of Grievances. If, after 
 hearing, the Board finds the defendant guilty, the order 
 of the Board shall be made the basis of prompt discipline 
 in the Association or the Unions as the case may be. 
 Such discipline shall consist of a suitable fine or expulsion. 
 The action so taken shall forthwith be reported in writing 
 to the Board of Grievances. 
 
 All names of candidates for membership in the Associa- 
 tion shall be submitted by the latter to the Unions before 
 the admission of such candidates, in order to afford such 
 Unions an opportunity to acquaint the Association with 
 the records of such candidates in respect to the conditions 
 of their factories and their treatment of employees. 
 
 Posting of These Notices 
 
 XIX. Copies of the three preceding paragraphs and of 
 Section XVII of the Protocol in EngHsh, and translations 
 thereof in Italian and Yiddish, shall be posted in every 
 shop of the Manufacturers, and in all of the meeting 
 rooms of the Unions, immediately upon the adoption of 
 this plan. 
 
 Matters for the Board of Arbitration 
 
 XX. Matters for the Board of Arbitration, (a) If 
 the Board of Grievances shall find after the hearing of 
 any case before it, that it cannot arrive at a decision in 
 accordance with the rules herein provided, it shall imme- 
 
RULES AND PLAN OF PROCEDURE 255 
 
 diately request the Board of Arbitration to convene and 
 hear the case. Wherever practicable it shall reduce the 
 issue to an agreed statement of facts, or prepare and 
 submit for decision specified questions. So far as prac- 
 ticable it shall relieve the Board of Arbitration of the 
 necessity of taking testimony upon the disputed ques- 
 tions of fact. 
 
 General Abuses or Grievances 
 
 (6) If the Board of Grievances shall find any general 
 grievances or abuse, which either party has failed, after 
 due opportunity, to correct, or if either party fails ade- 
 quately to discipline members found guilty by the Board 
 of Grievances, such matters may be presented by the 
 party aggrieved to the Board of Arbitration for redress, 
 either through its counsel or through its ofl&cers, and 
 the hearings thereon shall be public. 
 
 Conference of Both Parties Called by the Board 
 OF Grievances 
 
 XXI. Whenever, in the opinion of the Board of 
 Grievances, a general situation arises requiring adjust- 
 ment by both organizations, or revision or amendment of 
 the Protocol, it shall call a conference of both organiza- 
 tions by duly authorized representatives to consider and 
 discuss such matters. If such conference fails to agree, 
 the situation shall be presented to the Board of Arbitra- 
 tion for adjustment, pursuant to the terms of the Pro- 
 tocol. 
 
 Violation of These Rules 
 
 XXII. Failure to observe any of the provisions of this 
 plan and rules shall constitute a grievance to be tried 
 before the Board. 
 
2S6 APPENDIX B 
 
 Complaint to the Board of Arbitration 
 
 XXIII. Failure to respond in due course to any notice 
 given by the clerks shall constitute a grievance to be tried 
 before this Board. Repeated violations shall be the 
 basis of complaint to the Board of Arbitration. 
 
 Failure to Comply with Orders of This Board 
 
 XXIV. Failure to comply with any decision or order 
 of the Board shall constitute a grievance against the 
 party to be presented to the Board of Arbitration. 
 
 Neglect of Duty on the Part of Members of the 
 
 Board 
 
 XXV. Neglect of duty on the part of any member on 
 the Board shall be a grievance to be presented to the 
 Board of Arbitration. 
 
 Disqualification of Members 
 
 XXVI. No member of the Board interested in a case 
 shall sit in review thereof. 
 
 Failure to Attend Meeting or Refusal to Vote 
 
 XXVII. Any member of the Board failing to attend a 
 meeting of the Board or refusing to vote in a case heard 
 by him, shall furnish such explanation, or in case it shall 
 be deemed inadequate by either party, the matter may 
 be presented to the Board of Arbitration by the aggrieved 
 party, either through its counsel or through its ofl&cers. 
 
rules and plan of procedure 257 
 
 Appeals 
 
 XXVIII. Either party deeming itself aggrieved may 
 appeal to the Board of Arbitration from any order or 
 decision made by the Board of Grievances, upon giving 
 notice thereof to the clerks within thirty days after the 
 service of a copy of such order or decision. 
 
 Order of Business 
 
 XXIX. Until further revised, the order of business of 
 the Board shall be as follows: 
 
 1. Report of clerks on adjusted matters. 
 
 2. New complaints. 
 
 3. Old complaints adjourned for answer. 
 
 4. Trials of issue presented. 
 
 5. Matters for the Board of Arbitration. 
 
 6. Matters for Conferences. 
 
 I, Morris Hillquit, Secretary of the Board of Arbitra- 
 tion of the Cloak, Suit and Skirt Manufacturers' Protec- 
 tive Association and Cloakmakers' Union, hereby certify 
 that the foregoing is a true and complete copy of the rules 
 and plan of procedure of the Board of Grievances under 
 the Protocol of September 2d, 1910, as amended and 
 settled by the said Board of Arbitration. 
 
 Dated, New York, March nth, 191 1. 
 
 Morris Hillquit, 
 Secretary. 
 
APPENDIX C 
 DECISION OF BOARD OF ARBITRATION 
 
 January 21, igi^ 
 
 Chairman Beandeis: Gentlemen, the Board has 
 given consideration to the very able and informing argu- 
 ments which have been presented, and is now ready to 
 give its opinion. 
 
 There were presented to the Board in this proceeding 
 three questions of fundamental importance. The first, 
 relating to the respective rights of employers and em- 
 ployees in regard to the distribution of work. 
 
 The second, relating to the respective rights of em- 
 ployers and employees in regard to the discharge of 
 individual employees. 
 
 The third, relating to the respective rights of employer 
 and employees in relation to the discharge and employ- 
 ment of help in the case of what is called reorganization 
 in the shops. 
 
 These questions were submitted to us as questions on 
 the one side and the other of alleged existing rights under 
 the Protocol. We are consequently called upon to decide, 
 judicially, existing rights, and not to legislate, we having 
 no power to legislate concerning these matters under the 
 present circumstances. 
 
 As we are to pass upon what these rights are under the 
 Protocol, it seems necessary that we should consider the 
 situation prior to the formation of the Protocol, the cir- 
 cumstances which led up to the signing of the Protocol, 
 
 258 
 
DECISION OF BOARD OF ARBITRATION 259 
 
 what it was expected to accomplish, and what it appears 
 to have accomplished, all of course as bearing upon what 
 the rights are on the various subjects as to which we are 
 requested to render a decision. 
 
 Now, what the situation was which led to the forma- 
 tion of the Protocol appears in the request or statement 
 presented of the grievances of the Union. The statement 
 was presented in July, 1910, prior to or at the time of 
 entering upon the conferences which ultimately led to 
 the formation of the Protocol. These grievances, as 
 stated by the Union, are as follows: 
 
 "Our main grievances are low wages, unreasonable 
 night work, work in tenement houses, the disregarding of 
 Sundays and hohdays, sub-contracting, discrimination 
 against Union men, the irregular payment of wages, the 
 exacting of security, the charging for material and 
 electricity, and the blacklisting of active Union men. 
 
 "To remedy these grievances, it is in our opinion 
 necessary to establish a living standard of wages, to 
 regulate the hours of labor, to limit night work, to pre- 
 vent work on hohdays, to abolish all charges for elec- 
 tricity and appliances, to do away with tenement house 
 work, to prevent discrimination, to provide for the 
 regular payment of wages in cash both by manufacturers 
 and outside contractors, to do away with inside sub- 
 contracting, to establish a permanent Board of Arbitra- 
 tion which is to settle grievances, the Unions and the 
 employers to be equally represented on the Board of 
 Arbitration, the appointment of shop committees and 
 shop delegates. 
 
 "We are ready to enter into a discussion with you of 
 these grievances, and if a satisfactory adjustment of 
 them is reached, are prepared to recommend a settlement 
 of the strike. In the event of such settlement, every 
 
26o APPENDIX C 
 
 employee who participated in the strike to be reinstated, 
 the terms of any settlement which may be reached to be 
 reduced to writing and to be signed by both parties 
 through their representatives." 
 
 The strike there referred to was a strike which in- 
 volved about fifty thousand workers in this trade, and 
 upwards of 1,500 employers. Before the agitation which 
 led to the strike, only a small part of those fifty thousand 
 workers were members of the Union. It was stated at 
 the time that there were probably not more than three 
 thousand members in good and regular standing before 
 the agitation which led to the strike began. 
 
 About July 24, 1910, the conference began which re- 
 sulted in the signing of the Protocol on September 2, 1910. 
 That Protocol had four definite purposes. In the first 
 place, the Protocol undertook to remove specifically 
 the grievances enumerated. That is, the parties met to 
 decide by agreement upon the specific things that should 
 be done with reference to each of these grounds of com- 
 plaint: and each matter agreed upon became a specific 
 provision of the Protocol. 
 
 The result of that was to raise the industry as a whole, 
 practically each and every part of it, to the standard 
 which it is said was already observed by those shops 
 in the industry which were most advanced. Its effect 
 was to create the uniformly high standing provided by 
 the Protocol — which theretofore had been reached only 
 in individual instances. 
 
 The second result which was sought by the Protocol 
 was to create, through the strengthening of the' Em- 
 ployers' Association on the one hand, and of the Union on 
 the other, bodies which should be able to enforce com- 
 pliance with the terms of the agreement which was made. 
 It was recognized that without a strong Union ^pf em- 
 
DECISION OF BOARD OF ARBITRATION 261 
 
 ployees on the one side, and a strong Employers' Associa- 
 tion on the other, the agreement could not attain the 
 desired results. 
 
 Therefore, each party bound itself to aid the other in 
 strengthening the organization of that other, to the end 
 that what both had in mind and both purposed, the 
 improvement of the conditions in the industry, might be 
 effectually carried out. 
 
 In the third place, it was proposed, in creating the 
 Protocol, to insure to the individual employee not only 
 the compliance with the specific provision named in the 
 Protocol, which involved changes in a large part of the 
 shops, but to secure to the individual employee, through 
 the Protocol, the enforcement of fair, reasonable and 
 just treatment by his employer; such treatment which, 
 independently of the Protocol, could ordinarily have been 
 enforced only through strikes. That is, the Protocol was 
 devised to enforce for the benefit of the employee a right 
 to fair and just treatment; or, to put it in another way, 
 to secure, through the instrumentality of the Protocol, 
 the reasonable certainty that the employer would not 
 exercise his legal rights oppressively or unfairly. 
 
 In the fourth place, it was the purpose of the Protocol 
 to introduce into the relations of the employer and the 
 employee a whole new element; that is, the element of 
 industrial democracy; that there should be a beginning, 
 at least, of a joint control, and with joint control a joint 
 responsibility for the conduct of this industry: that we 
 should pass from that condition where the employer de- 
 termined alone what was to be deemed proper, and where 
 the employer alone was held responsible for things that 
 were improper in the trade; and that in place thereof we 
 should impose upon all those in the trade, the employer 
 as weU as the employee, the obligation of removing 
 
262 APPENDIX C 
 
 through constructive work, those conditions which prop- 
 erly caused discontent, and which prevented the em- 
 ployer and employee alike from attaining that satisfac- 
 tory living within the industry which it must be the aim 
 of all effort in business to secure. 
 
 It therefore was an essential part of this Protocol that 
 it should look forward to improvement; and that the 
 condition arrived at, although it was very much higher 
 than that which had prevailed before the Protocol was 
 adopted, was merely a stage in that development of the 
 trade which the parties believed to be possible, that the 
 higher steps were to be attained through cooperation, 
 through a removal of that sense of antagonism of inter- 
 ests which had prevailed, and must necessarily prevail 
 under other conditions, and which was believed to be an 
 important cause of the discontent and of the unsatisfac- 
 tory results hitherto prevailing. 
 
 Those who entered into the Protocol, therefore, looked 
 forward to advances and, as has been said in one of the 
 earlier opinions of this Board, a constant improvement 
 in the condition of the worker was a part of the standard 
 to which we were bound to look forward. It was recog- 
 nized at that time, that the attainment of the end sought 
 required not only the cooperation between this par- 
 ticular Union and this particular Employers' Association, 
 but involved also the ability on the part of the Union to 
 raise the standards in other shops in this city and in other 
 places which would naturally be in competition with 
 those members of the Protective Association; and the 
 effort of the Union was pledged to secure, so far as possi- 
 ble, that improvement of standard elsewhere. 
 
 Now, those, as we conceive it, were the purposes sought 
 to be accomplished. It was not intended by the Protocol 
 to change the relation of the employer to the employee, 
 
DECISION OF BOARD OF ARBITRATION 263 
 
 otherwise than as I have stated and as is expressly stated 
 in the Protocol. In all other respects the legal rights 
 were to remain what they had been before. 
 
 The Union, by signing the Protocol, relinquished its 
 right to secure by strike more than it was getting, and 
 there was substituted for that relinquished power of 
 strike, the powers created under this agreement, which 
 constitutes a government to control the relations between 
 employer and employee. And as this Union and other 
 Unions had frequently exercised their right to enforce 
 the fair, just and reasonable exercise by the employer of 
 his legal rights in regard to the administration of busi- 
 ness, and in regard to hiring and discharging, so this 
 instrument involved in its creation the right to secure, 
 through its provisions, the same thing. But it substi- 
 tuted for the strike the machinery of the Protocol as a 
 means of securing the fair and reasonable exercise by the 
 employer of those rights which were, by law, vested in 
 him. 
 
 We are of the opinion, therefore, that underl)dng the 
 Protocol, and of the essence of its existence, must be a 
 spirit of fairness, that it must be understood as a basis 
 for any proper interpretation of it and application of it; 
 that the parties desire by its provisions to promote, 
 foster and develop square dealings in all of the relations 
 of employer and employee; that its purpose must be 
 read in the light of an honest attempt to eliminate un- 
 conscionable and unjust conditions in this important 
 and necessary relationship; that unreasonable acts or 
 demands are not to be expected from either of the parties, 
 and that anything of that nature would be in violation 
 of the fundamental purpose of the Protocol; that in the 
 light of these basic principles, the Board decides, as bear- 
 ing upon the questions of discharge: 
 
264 APPENDIX C 
 
 That no employee who can be considered as a regular 
 employee, should be discharged unfairly or without 
 reasonable grounds. In other words, that the spirit of 
 fairness and the rule of reason be used to determine 
 whether or not an employee should be discharged ; 
 
 That the right of determining this must in the first 
 instance rest with the employer, and that any employee, 
 deeming himself unjustly treated, has a right to make 
 his complaint and have his grievance heard in the regular 
 manner. And in the hearing of such cases, it is under- 
 stood that the parties administering the Protocol are to 
 look into all the facts and to apply the same standards for 
 determining the case, thus eliminating the burden of 
 proof from all consideration. 
 
 That statement, and what bears upon the other 
 branches, may perhaps be amplified by this further 
 statement: 
 
 The power of administration, discipline and discharge 
 vested in the employer shall be exercised in a fair and 
 reasonable manner, and if the propriety of the action is 
 questioned, shall be subject to review. 
 
 The words "fair" and "reasonable," as used herein, 
 shall be interpreted in the light of the spirit and of the 
 purpose of the Protocol as stated, and that spirit and 
 purpose includes, among other things, the following: 
 
 First: To assist the employer in the peaceful and unin- 
 terrupted operation of his factory, in estabUshing and 
 maintaining reasonable discipline, and in promoting such 
 economy and eflficiency of production as may be secured 
 by cooperative effort. 
 
 Second: To assist the Union in establishing the strength 
 and efl&ciency of its organization, and raise the standard 
 throughout the trade, to the end that the Union power 
 may be adequate to carry the responsibilities and perform 
 
DECISION OF BOARD OF ARBITRATION 265 
 
 the duties imposed upon it by the Protocol, and to pro- 
 mote the cooperation and good will between the Union 
 and the Association, so essential to the successful opera- 
 tion of the Protocol, and to the solution of the problems 
 of the industry. 
 
 Third: Subject to the foregoing provisions, to assist 
 the individual worker in obtaining such security and 
 continuity in his employment, such equity in the dis- 
 tribution of work and such fairness of general treatment 
 and of conditions as may be possible and practicable, 
 having regard to the unavoidable fluctuations and 
 exigencies of the work, and the imperfections and limita- 
 tions of ordinary human nature by which this enormously 
 difficult industry must be administered. 
 
 And as bearing upon the question of what is "fair and 
 reasonable," in the division of the work, the following 
 may be of assistance as a guide: 
 
 The equal division of work is to be regarded as desirable 
 and necessary in this industry, for it must be acknowl- 
 edged that it should be made possible for the people 
 called into the industry, and who are regularly employed 
 therein, to earn a reasonable livelihood, but the principle 
 of the equal division of the work is inseparably bound 
 up with the principle of control of labor supply. The 
 industry may be able to sustain the burden of supporting 
 fifty thousand workers while the burden of supporting 
 seventy-five thousand might break down the industry. 
 
 This makes it indispensable that the question of the 
 control of labor supply must be considered in any per- 
 manent treatment of this question. 
 
 We recommend, therefore, that this question shall be 
 taken up for consideration and disposition by a joint 
 committee. 
 
 You will see, therefore, that in reference to what is a 
 
266 APPENDIX C 
 
 regular employee and in undertaking to indicate what 
 would be a fair and reasonable application of the com- 
 monly practiced rule of equitably distributing work, that 
 we have not undertaken to lay down a definite rule or to 
 express in a specific code what is fair and what is reason- 
 able. For we beheve that any attempt to define what is 
 fair and reasonable with reference to discharge or in the 
 administration of the shop, would, in the long run, lead 
 rather to injustices than to justice. What is fair and 
 reasonable, all things and all interests considered, is 
 something which, in the absence of specific agreement 
 between the parties, must be left to the judgment of men 
 familiar with the particular facts, and the facts will vary 
 in particular cases. 
 
 We are confronted with a situation which is similar to 
 that with which courts and juries have constantly to 
 deal — the question of what is reasonable care, with the 
 question of what is reasonable notice, and with the ques- 
 tion of what is reasonable cause for action. Any attempt 
 to codify what is reasonable would have to make provi- 
 sion and take into consideration so many possible condi- 
 tions and such remote possibilities that the mind of man 
 could not justly determine in advance the rule to be 
 applied. Indeed, the rules, if determined in advance, 
 would prove so numerous that the mere selection of the 
 rule to be applied would present a difficulty almost 
 insurmountable. 
 
 It is perfectly possible, however, that in respect to 
 certain of the questions bearing upon this subject, the 
 parties may come together, and reach an agreement, 
 which will in the first instance relieve the employers and 
 employees, and then the clerks or the Committee on 
 Immediate Action, from the necessity of passing upon 
 certain classes of individual cases. The parties could do 
 
DECISION OF BOARD OF ARBITRATION 267 
 
 this by la3ang down some rule which should in certain 
 well-defined classes of cases be accepted as the reasonable 
 and fair course of action. 
 
 And this suggestion as to what parties may be able to 
 do in simplifying by agreement the determination of the 
 rule to be followed, applies perhaps even more strongly 
 to the questions which have been presented to us in 
 connection with the reorganization of shops. On that 
 subject we feel ourselves unable as stated to lay down any 
 rule except that the action shall be what is fair and rea- 
 sonable. But it is perfectly possible that if you gentle- 
 men wiU come together in conference to consider certain 
 well-defined classes of cases, you may be able to deal 
 with them comprehensively, and to that extent narrow 
 the field in which the discretion of the employer, of the 
 clerk and of the Committee on Immediate Action would 
 otherwise have to be exercised. 
 
 We feel, however, that there are other matters even 
 more far-reaching, and of deeper significance, upon which 
 it is essential that the parties should get together: the 
 particular questions in connection with the distribution 
 of work, discharge and the reorganization of shops, which 
 have brought you here before us. Underlying these 
 matters are some fundamental difficulties in the trade, 
 for which neither the one side nor the other can be held 
 wholly responsible, and for which both sides must, in our 
 opinion, be held responsible, not in the sense of being 
 culpable for their existence, but in the sense of having the 
 responsibility of removing by careful, persistent thinking 
 and experimentation, the causes of the trouble. These 
 causes cannot possibly be removed by shifting burdens 
 from one side to the other. The difficulties and incidental 
 suffering are inherent in the trade. And of these difficul- 
 ties the three of greatest importance are: 
 
268 APPENDIX C 
 
 First: the matter of standardizing prices. 
 
 We feel that on the questions of discharge and re- 
 organization, particularly, this subject of a standardiza- 
 tion of prices has the most definite and indeed controlling 
 bearing. At present collective bargaining exists in the 
 trade only nominally. There was collective bargaining 
 in fixing upon the week rates when this Protocol was 
 confirmed; but there is not in any proper sense collective 
 bargaining in dealing with the subject of piece rates, and 
 the wages of at least three-fourths of the employees rest 
 upon piece rates. 
 
 It has been stated here that there ought not to be 
 competition within the Union, but we have here in a sense 
 1,500 or 2,000 different competing units; for the piece 
 prices are made independently in each shop. Some way 
 must be found of standardizing prices. It does not seem 
 to us to be at all beyond the realm of human achievement 
 in this industry to solve that problem. But the members 
 of the Union on the one hand, and of the Manufacturers 
 on the other, should accept the burden involved in solv- 
 ing this problem and devote themselves persistently to 
 working out some standard. It is perfectly clear that in 
 working out some general standard, they will not be able 
 to solve, in many instances, an individual case as satis- 
 factorily as one of the two thousand manufacturers 
 might satisfy it for himself. But the parties can secure, 
 and they must secure, some approach to reasonable 
 uniformity in the fixing of piece prices acceptable as a 
 working basis. 
 
 The second matter has important relation not only to 
 questions of discharge and reorganization, but also to the 
 regularization of employment, the question of distribu- 
 tion of work. The Board realizes the difl&culties inherent 
 in that problem as this is a seasonable industry: and we 
 
DECISION OF BOARD OF ARBITRATION 269 
 
 are convinced, that it is inevitably bound up with the 
 question of control of the labor supply. It involves the 
 question of apprenticeship in this industry. This in- 
 dustry cannot be made either what the employers or the 
 employees have the right to insist that it should become, 
 unless some way is found, through invention, experi- 
 mentation and broad processes of education, of mitigating 
 in large measure the present barbaric conditions which 
 prevail in this industry. The irregularity of employment 
 not only involves terrible waste for employer and em- 
 ployee, and ultimately for the community also, but also 
 brings about unhappiness and demoralization on the part 
 of all affected by it. 
 
 Third, and as bearing upon the possible solution of 
 these questions, and also the necessary relation of these 
 Protocol shops with those who are outside the Protocol, 
 whether in this city or any other cities, the Board recom- 
 mends the careful consideration by the parties of the 
 Protocol label. 
 
 The achievements of the past four years and a half 
 in which those engaged in liis industry have been en- 
 deavoring to work out their problems, and in a certain 
 sense the problems of all industries, justify them in 
 calling upon the public to aid in making possible the 
 solution of the problems involved. We are dealing 
 specifically with tJie problems of only a part of the gar- 
 ment trade; but your problems are in large measure the 
 problems of all industry. You are leaders in the attempt 
 to work out these problems, and are entitled not only to 
 the sympathetic consideration, but to the help of the rest 
 of the community. Protocol conditions are conditions 
 which the community desires to have established gen- 
 erally. There are scarcely any, whether employers or 
 employees or consumers, who do not wish to accompUsh 
 
270 APPENDIX C 
 
 exactly what those who are in this industry are seeking 
 to accomplish by way of bettering the relations of em- 
 ployer and employees. Some method ought to be devised 
 of enhsting the codperation of the community in the 
 great and difficult task of working out these problems. 
 The Protocol label has been suggested as one of the 
 means of accomplishing such cooperation. However 
 valuable the suggestion, it is obvious that its practical 
 application is a matter of great but not of insuperable 
 difficulty. 
 
 We believe that that fourth purpose, stated at the 
 outset of the Protocol, of the careful working together by 
 the two parties of the problems of this industry, as being 
 joint problems of employer and employee, is the key to 
 the ultimate solution of most difficulties. New questions 
 will constantly arise, partly because of the changes which 
 come in the trade from time to time, and more largely, it 
 is hoped, because of the growing demand which should 
 properly be made for an improvement in the condition of 
 the worker. But those problems can never be adequately 
 solved; the relief can never be given to any appreciable 
 extent by the shifting of the burdens either from the 
 employers to the employees, or from the employees to the 
 employers. We may all look forward to the time — as was 
 suggested in one of the papers read here — ^when labor 
 will employ capital, instead of capital employing labor; 
 but whether labor employs capital or capital employs 
 labor, we must meet the fundamental problem of ade- 
 quate production — of such an increase of productivity 
 and diminution of waste as shall make the total product 
 sufiEicient to reasonably satisfy the desires as well as needs 
 of those actually engaged in the industry. In the opinion 
 of the Board, it is necessary that the parties should be 
 constantly directing their attention to the improvement 
 
DECISION OF BOARD OF ARBITRATION 271 
 
 of fundamental conditions. We realize that in this in- 
 dustry, with all of its diflBiculties, and with the very large 
 number of persons engaged in it as the employers and 
 employees, there will inevitably be many persons who 
 consider themselves aggrieved, and many who are ac- 
 tually aggrieved. We believe that every case in which 
 an employer or employee considers himself aggrieved, 
 should receive careful and adequate consideration; be- 
 cause that is an essential part of the Protocol, indeed 
 the life of the Protocol, Nevertheless that it ought to be 
 possible now to devise methods and means so as to re- 
 lease the energies and the time of those who are best able 
 to give attention to the larger problems of the industry. 
 The individual grievances should be investigated and 
 adjusted mainly through the efforts of the clerks or the 
 Committee on Immediate Action. The time of the other 
 officers in high stations among both employers and em- 
 ployees should be reserved for the consideration of the 
 fundamental difficulties referred to, and the solution of 
 which seems to us to be absolutely necessary to the 
 satisfactory adjustment of the mutual relations, and a 
 satisfactory result to all concerned. 
 
 There are a few words that perhaps could be added to 
 what I have said, on the one hand by Mr. Thompson, 
 and on the other by Mr. Holt. 
 
 Mr. Thompson: It perhaps might properly be said at 
 this time, in regard to the third proposition which was 
 submitted to the Board for adjudication — I am referring 
 to that one relating to the equal distribution of work, as 
 far as possible — that in the consideration of that ques- 
 tion, the Board feels that it has adequately answered it 
 by the laying down of the principles which have been 
 read to you by Mr. Brandeis. I might refer to a portion 
 of the language which must necessarily be taken alone, 
 
272 APPENDIX C 
 
 which will help in elucidating what I am referring to. 
 That is to say, the Protocol is for the purpose of assisting 
 the individual workers in obtaining such security and 
 continuity of employment and such equity in the dis- 
 tribution of work, and such fairness of general treatment 
 and conditions as may be possible and practicable. The 
 Board feels that the laying down of those general prin- 
 ciples will furnish an adequate guide for the carrying out 
 of the Protocol, and that it is not necessary at this time 
 to go into the laying down of rules or the settlement of 
 definite matters which might properly be left to the 
 parties themselves. We feel that this will give an ade- 
 quate guide to the employer, to the clerks, to the Com- 
 mittee on Immediate Action, and if it should be that any 
 question should still exist, of course an appeal from the 
 Committee on Immediate Action to this Board would 
 permit the Board to pass on the proposition. 
 
 Chairman Brandeis: I ought to add simply this, 
 which the Board had requested me before to say that if, 
 after the parties have come together in their conferences 
 to consider any of these questions in which the Board 
 can in any way aid the parties, it stands ready to meet 
 again at as early a date as is practicable for that purpose. 
 
 Mr. Holt says that he has nothing to add to what has 
 been stated by Mr. Thompson and myself. 
 
 Mr. Hillquit: Mr. Chairman, Mr. Thompson and 
 Mr. Holt — In behalf of the Union, which was the moving 
 party in this proceeding, I wish once more to thank the 
 Board, and all its members, for the time, attention and 
 consideration given to our requests laid before them, and 
 also for the opinion rendered to-day. We accept the 
 opinion, gentlemen, in the spirit in which it was rendered. 
 We have submitted to you certain specific requests for 
 interpretation, certain ^edfic requests for rules of con- 
 
DECISION OF BOARD OF ARBITRATION 273 
 
 duct. You have not given us definite, concrete direc- 
 tions, but we feel that you have done more. You have 
 given us a guide, a guide of general conduct in our rela- 
 tions to each other, based upon the highest principles of 
 fairness and justice. We could not expect more, we did 
 not expect more, and we promise you, gentlemen of the 
 Board, that we shall make honest efforts to make this 
 guide the standard of our relations, the test of our rela- 
 tions with the employers. And I wish to say here, per- 
 haps to some extent for the information of you gentlemen 
 of the Board, that our position when we come before you 
 is necessarily somewhat unfortunate, and may perhaps 
 tend to give you an erroneous impression of the actual 
 relations existing between us, and the actual situation of 
 the industry. We come before you with our difl&culties. 
 We come before you after some clash or another which is 
 bound to arise, but I am happy to say we do not come 
 very often before you. But it is natural. We have no 
 occasion to apply to you for intervention and guidance 
 and assistance when everything is harmonious between 
 us. Our industry is, as the Chairman of your Board well 
 remarked, one beset with extreme difficulties, the usual 
 difficulties of every industry in these times, difficulties 
 created by fierce competition among the employers, 
 and other conditions, conditions of labor generally, and 
 economic conditions. We have yet the special and pe- 
 culiar difficulties of a highly seasonal industry, and 
 perhaps other difficulties inherent in our industry alone, 
 and based, to a large extent also, upon the character both 
 of the employers and the employees. 
 
 And I want you to remember, gentlemen, that these 
 relations that arise or spring from this situation are such 
 as may be classified and generalized and brought before 
 you, or laid before the public as an abstract proposition. 
 
274 APPENDIX C 
 
 but that in actual life they find expression in the daily 
 relations of about two thousand employers with about 
 fifty thousand employees, of both sexes, and all ages; 
 and both the employers and the employees are vitally 
 interested in every question that arises in their relations. 
 All of these workers have to look for their living to the 
 industry, and the conduct of the industry, and the em- 
 ployers likewise. Thus we have thrown against each 
 other in daily contact the interests of more than fifty 
 thousand human beings, the vital interests of such a 
 large army of men and women, both employers and em- 
 ployees. And with that we have managed, in the course 
 of more than four years, to not only maintain the rela- 
 tions between us, in the spirit in which we attempted 
 to express it in our Protocol, but to improve those rela- 
 tions on the whole. It is a most eloquent testimony of 
 how well those who have given us this Protocol have per- 
 formed their work. I say, on behalf of the organization I 
 have the honor to represent, that it shall be our effort to 
 continue this work, the work of improving the conditions 
 of the industry and protecting the men and women jn the 
 industry, from day to day, imder the Protocol. I know it 
 is a difi&cult task. We all realize it. We know we caimot 
 create ideal conditions satisfactory to both parties within 
 a very short time, but I am free to say that some of the 
 recommendations mentioned by the Chairman we have 
 had under consideration. In some of them, as my friend 
 Mr. Cohen has stated to the Board, we have made a 
 beginning at least of what we hope will be a perfectly 
 feasible and workable plan. Others, as far as we are con- 
 cerned, we shall take up as speedily as possible and give 
 them our earnest consideration. In our future dealings 
 with each other, the opinion of this Board rendered here 
 to-day will very often have to be referred to. I hope that 
 
DECISION OF BOARD OF ARBITRATION 275 
 
 no effort will be made on the part of either of the two 
 parties to ossify this beautiful living principle enunciated 
 by the Chairman; that no effort will be made to codify, 
 as the Chairman has expressed it, those general princi- 
 ples, but that both sides, and particularly the men 
 charged with the machinery for the adjustment of all 
 grievances, large or small — and they are bound to come 
 up from day to day — ^will bear the spirit of this decision 
 in mind, rather than try to analyze the exact expressions. 
 As far as we are concerned, we are not only willing but 
 absolutely determined to live up to that spirit, and I 
 hope it will not become necessary for either side to con- 
 vene another session of this Board, with the request for 
 supplemental legislation or rules. We hope, with the 
 general rules of guidance given to us, we shall be able to 
 settle our few, and, after all, insignificant controversies, 
 from time to time, and to continue our period of con- 
 structive work for the benefit of the industry and both 
 of the parties concerned in it. 
 
 Once more I thank you, gentlemen of the Board, in 
 behalf of the Unions. 
 
 Mr. Julius Henry Cohen: I must share with my 
 colleague the expressions of gratitude for the great service 
 that the Board has given. I suppose that it will be 
 inevitable, in the reading of your opinion, as in the hear- 
 ing of it, that each side will put emphasis upon those 
 portions which it regards of interest to it. But so far as 
 the expressions from my colleague with reference to the 
 desire to heed the injimction of the Board, to do con- 
 structive thinking, planning and invention, I need only 
 say that my friend — and may I say that I need no such 
 injunction. From the moment that my colleague entered 
 into the consideration of this question, I have found him 
 ready to consider every proposition for the improvement 
 
276 APPENDIX C 
 
 of the industry and to consider it frankly and construc- 
 tively and to share in the carrying of the burden. And in 
 his expressions to-day he has merely continued the spirit 
 that began with his entrance into this situation. 
 
 I am very glad indeed that the Board has impressed 
 both sides with the importance of spending more time 
 upon the root problems of this industry than the spending 
 of time upon the smaller Htigations. As you have ob- 
 served from my presentation, we are of the opinion that 
 there is much waste of time in tmnecessary litigation. 
 The time of the Executive officers should be released for 
 the consideration of the big problems of the industry. 
 We feel it is a burden to ask men who have to carry the 
 responsibilities of factory and office Hfe here, with the 
 tremendous ordinary wear and tear, and the extraordi- 
 nary wear and tear of abnormal situations, and then ask 
 them to give service to an industry in the sense in which 
 we lawyers give service to our profession. We are for- 
 tunately situated, we lawyers. Our time is arranged so 
 that we can give service to our profession, and yet per- 
 form our usual vocations, but business men have diffi- 
 culty in doing that, especially those men whose livelihood 
 is dependent on the business. Our friends are more 
 fortunately situated, not merely that their duties are less 
 arduous or less exacting but that this is their only duty 
 to consider these propositions from an industrial point of 
 view, and, as I say, we are very glad to have you bring 
 home the importance of separating the time spent upon 
 small matters and devoting it to large matters. 
 
 We would have been glad, as my friend would have 
 been glad, to have had more definite and specific rulings 
 from the Board. As an expression of the spirit that 
 should animate the attitude of both parties, neither of us 
 can take exception to what you have said. And might 
 
DECISION OF BOARD OF ARBITRATION 277 
 
 I say on behalf of my clients, that so far as the Associa- 
 tion and its officers are concerned, that is the spirit that 
 we have sought to carry out in the last four and a half 
 years, and we rest upon our record of performance in that 
 regard. We do not claim that all of our members are 
 perfect. If they were perfect, there would be no need for 
 the machinery or the institution we have created, but we 
 accept that general obligation, and we have sought by 
 the most rigorous means to carry it out in the conduct 
 of our members. We are very glad to think your Board 
 has seen the importance of those provisions, if not ex- 
 pressed, implied in the Protocol, for equalizing the 
 standards throughout the industry, for whatever our 
 dreams may be in the future form of industrial society, 
 we are living to-day in a condition of industrial society 
 where neither these institutions nor these factories can 
 subsist without some recognition of the competitive prob- 
 lem, and certainly no Protocol can exist, no associa- 
 tion can exist, if the practical operation of the Protocol 
 is to penalize the member of the Association and to offer 
 a reward to the non-member. We are very glad to see 
 that you have referred to the importance of considering 
 that matter, and in presenting again the matter of the 
 Protocol label, you have merely carried out the inventive 
 thoughts of some of the men who have been with the 
 problem for these four and a half years. 
 
 May I, with the same respect I hope always to show, 
 bring to the attention of the Board the fact it has not 
 passed upon one matter that may be of consequence in 
 the future handling of these matters. You will recall 
 my friend made the contention that unless there was 
 specific reservation of the rights of the parties, the hand- 
 ling of cases by the clerks would establish by acquies- 
 cence certain propositions of Protocol law. Upon that 
 
278 APPENDIX C 
 
 matter we have taken our stand, and he has taken his. 
 I don't see how I can very well agree with him. I don't 
 see how he can very well agree with me, and the Board 
 has not aided us in that regard. 
 
 Mr. Hillquit: Just to clarify the situation before the 
 Chair answers that: Mr. Cohen has obviously mis- 
 understood my contention. It never was my contention 
 that any service rendered or course followed without 
 specific reservation creates a precedent. I never based 
 my contention upon the theory of legal precedent in the 
 technical sense. The only time the question of prece- 
 dence was at all discussed by me was in connection with 
 the practice of equal distribution of work, which I claim 
 was so uniform, and so clearly acquiesced in by both 
 sides as to definitely establish a custom which has not 
 existed before. I do not claim now and I did not claim 
 at any time that any act done by either side, by the 
 Association or by the Union, perhaps contrary to its 
 definite and concrete rights, would constitute a waiver of 
 such rights in the future. 
 
 Chairman Brandeis: The explanation which Mr. 
 HUlquit has given perhaps relieves the Board of the 
 necessity of adding anything, but we do wish to say this: 
 We have at all times urged upon the representatives of 
 both manufacturers and the Union, to consider, in the 
 first place, not so much rights as duties, and to bear 
 in mind that this is a hirnian institution; and that in 
 order to make it work satisfactorily to both parties, it is 
 essential that they should seek adjustments and to re- 
 fram from raising issues unnecessarily and from insisting 
 upon positions as legal rights. We therefore feel that 
 what the clerks were doing in adjusting these problems 
 coming up from day to day, should clearly not consti- 
 tute precedents, except so far as they might be precedents 
 
DECISION OF BOARD OF ARBITRATION 279 
 
 for their own action through growing wisdom and judg- 
 ment in dealing with the necessarily difi&cult problems 
 which arise. But in no sense should these good offices 
 which we were constantly urging upon the clerks be 
 construed as creating rights. Indeed, we have on several 
 occasions complimented the clerks on their great success 
 in efifecting these adjustments. It seems to us clear that 
 the course hitherto pursued by the clerks of effecting 
 adjustments should be continued imhampered. 
 
APPENDIX D 
 
 FINDINGS AND RECOMMENDATIONS OF 
 COUNCIL OF CONCILIATION 
 
 Appointed by the Mayor of the City of New York to con- 
 ciliate matters in controversy between the Cloak, Suit and 
 Skirt Manufacturers' Protective Association, and the 
 International Ladies' Garment Workers' Union and the 
 Joint Board of the Cloak and Skirt Makers' Unions. 
 
 July 23, 1915 
 
 The Council appointed by the Mayor of the City of 
 New York to assist the Cloak, Suit and Skirt Manufac- 
 turers' Protective Association and the International 
 Ladies' Garment Workers' Union to reach an agreement 
 on the matters at present in controversy between them, 
 record on behalf of the general public, their appreciation 
 of the peaceful and progressive relations which have 
 existed in the cloak-making industry during the past 
 five years, a state of things due not only to the enlight- 
 ened self-interest of the employers and wage earners, but 
 also to the large social ideals which have animated both 
 sides. If this fair prospect has for the moment been 
 clouded, and these friendly relations have suffered a 
 temporary interruption, it is the aim and the hope of this 
 Council to pave the way for their resumption, not only 
 to prevent ground previously gained from being lost, 
 but to bring about advances in new directions. 
 
 280 
 
FINDINGS, ETC., OF COUNCIL OF CONCILIATION 281 
 
 The Council remind both sides of the very notable 
 achievement already to their credit in the creation of the 
 covenant known as the "Protocol." And if this instru- 
 ment has been found defective in certain particulars it 
 should be modified, reconstructed or some more suitable 
 agreement put in its place. In the endeavor to work out 
 the plan of a new compact of this sort, the Council has 
 laid down the following fundamental rule: 
 
 That the principle of industrial efficiency and that of 
 respect for the essential human rights of the workers 
 should always be applied jointly, priority being assigned 
 to neither. Industrial efficiency may not be sacrificed to 
 the interests of the workers, for how can it be to their 
 interest to destroy the business on which they depend 
 for a living, nor may efficiency be declared paramount to 
 the human rights of the workers; for how in the long run 
 can the industrial efficiency of a country be maintained 
 if the human values of its workers are diminished or de- 
 stroyed. The dehcate adjustment required to reconcile 
 the two principles named must be made. Peace and 
 progress depend upon complete loyalty in the effort to 
 reconcile them. 
 
 We, therefore, find: — 
 
 I. — Under the present competitive system, the prin- 
 ciple of industrial efficiency requires that the employer 
 shall be free and unhampered in the performance of the 
 administrative functions which belong to him, and this 
 must be taken to include: 
 
 (a) That he is entirely free to select his employees at 
 his discretion. 
 
 (b) That he is free to discharge the incompetent, the 
 insubordinate, the inefficient, those unsuited to the shop 
 or those unfaithful to their obligations. 
 
 (c) That he is free in good faith to reorganize his shop 
 
282 APPENDIX D 
 
 whenever in his judgment, the conditions of business 
 should make it necessary for him to do so. 
 
 (d) That he is free to assign work requiring a superior 
 or special kind of skill to those employees who possess the 
 requisite skiU. 
 
 (e) That while it is the dictate of common sense, as 
 well as common humanity, in the slack season to dis- 
 tribute work as far as possible equally among wage 
 earners of the same level and character of skill, this 
 practice cannot be held to imply the right to a permanent 
 tenure of employment, either in a given shop or even in 
 the industry as a whole. A clear distinction must be 
 drawn between an ideal aim and a present right. 
 
 The constant fluctuations — the alternate expansions 
 and contractions to which the cloak-making industry is 
 so peculiarly subject, and its highly competitive char- 
 acter, enforce this distinction. But an ideal aim is not, 
 therefore, to be stigmatized as Utopian, nor does it 
 exclude substantial approximations to it in the near 
 future. Such approximations are within the scope of 
 achievement, by means of earnest efforts to regularize 
 emplo3mient and by such increase of wages as will seciu-e 
 an average adequate for the maintenance of a decent 
 standard of living throughout the year. The attempt, 
 however, to impose the ideal of a permanent tenure of 
 employment upon the cloak-making industry in its 
 present transitional stage is impracticable, calculated to 
 produce needless irritation and injurious to all con- 
 cerned. 
 
 II. — In accordance with the rule above laid down, that 
 the principle of efficiency and that of respect for the 
 human rights of the workers must be held jointly and 
 inseparably, we lay down: 
 
 (a) That the workers have an inalienable right to 
 
FINDINGS, ETC., OF COUNCIL OF CONCILIATION 283 
 
 associate and organize themselves for the purpose of 
 maintaining the highest feasible standard as to wages, 
 hours and conditions, and of still further raising the 
 standards already reached. 
 
 (b) That no employee shall be discharged or discrim- 
 inated against on the ground that he is participating 
 directly or indirectly in union activities. 
 
 (c) That the employees shall be duly safeguarded 
 against oppressive exercise by the employer of his func- 
 tions in coimection with discharge and in all other deal- 
 ings with the workers. It is to be carefully noted that 
 the phrase "oppressive exercise of functions" need not 
 imply a reflection on the character and intentions of the 
 high-nainded employer. 
 
 An action may be oppressive in fact, even though in- 
 spired by the most benevolent purpose. This has been 
 amply demonstrated by experience. No human being 
 is wise enough to be able to trust his sole judgment in 
 decisions that affect the welfare of others; he needs to be 
 protected, and if he is truly wise, wiU welcome protection 
 against the errors to which he is liable in common with 
 his kind, as well as against the inspirations of passion or 
 selfishness. 
 
 For this reason, a tribunal of some kind is necessary, 
 in case either of the parties to this covenant believes itself 
 to be unjustly aggrieved. And because the construction 
 of such a tribunal is a delicate and difficult task, demand- 
 ing the greatest care, lest on the one hand the movements 
 of industry be clogged by excessive litigation, and lest 
 on the other hand the door of redress be closed against 
 even the most real and justified complaint; therefore 
 
 III. — In accordance with these general principles, the 
 Council propose that an agreement be entered into by 
 the Cloak, Suit and Skirt Manufacturers' Protective 
 
284 APPENDIX D 
 
 Association, and the International Ladies' Garment 
 Workers' Union and the Joint Board of Cloak and Skirt 
 Makers' Unions, embodying these principles and provid- 
 ing the following: 
 
 (a) Every complaint from either organization to the 
 other shall be in writing, and shall specify the facts which, 
 in the opinion of the complaining organization, consti- 
 tute the alleged grievance, and warrant its presentation 
 by one organization to the other. Such complaints shall 
 be investigated in the first instance by the representa- 
 tives of the two associations, chosen for the purpose, it 
 being impressed upon them that they use and exhaust 
 every legitimate effort to bring about an adjustment in 
 an informal manner. In case, however, an adjustment 
 by them be not reached, the matters in dispute shall be 
 referred for final decision to a 
 
 (6) Trial Board of three, consisting of one employer, 
 one worker and one impartial person, the latter to be 
 selected by both organizations, to serve at joint expense 
 and to be a standing member in all cases brought before 
 the Board. The remaining two members shall be selected 
 as follows: 
 
 The Association and the Union shall each make up a 
 Ust of ten persons, to be approved by the other. From 
 these two lists, as each case arises, each party shall select 
 one person. 
 
 IV. — ^The articles of the Protocol numbered First, 
 Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, 
 Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Four- 
 teenth and Fifteenth are hereby incorporated in this 
 agreement except as herein expressly revised and except 
 as hereafter modified after the recommendations of the 
 Council. 
 
 V. — This Council has been requested by the Mayor 
 
FINDINGS, ETC., OF COUNCIL OF CONCILIATION 285 
 
 to continue as a commission to investigate thoroughly 
 the fundamental problems of regularization, standards of 
 wages and enforcement of standards throughout the 
 industry, of trade education, and of a more thorough 
 organization of the industry, and on the basis of such 
 investigation it shall submit a constructive policy to both 
 organizations. 
 VI. — Wages. 
 
 I. As a temporary arrangement until a maturer study 
 of the industry shall lead to a final adjustment, the 
 standard observed for piece workers in fixing piece-work 
 rates shall be at the rate of 70 cents an hour for each 
 hour of continuous work for operators and piece tailors, 
 and 50 cents an hour for each hour of continuous work 
 for finishers, taking the worker of average skill as the 
 basis of computation and making no allowance for idle- 
 ness. 
 
 Piece prices shall be settled between the employer 
 and a price committee. If the parties cannot agree, they 
 shall call in price adjusters furnished by both sides. 
 Wages for week workers shall be as follows: 
 
 For cutters $27 . 50 
 
 For skirt cutters 23 . 50 
 
 For jacket upper pressers 25.00 
 
 Skirt upper pressers 23 .00 
 
 Skirt under pressers 18.00 
 
 Jacket under pressers 21 .co 
 
 Sample tailors 23 . 00 
 
 Skirt basters 15 • 00 
 
 Part pressers iS • 5° 
 
 Canvas cutters 13 • 00 
 
 Skirt finishers $11.00, provided each department be 
 permitted to have one learner to six finishers. 
 Reefer pressers and under pressers to be paid as other 
 
286 APPENDIX D 
 
 pressers providing the Unions prove their contention 
 that such wages have been paid outside of the Associa- 
 tion houses. 
 
 Piece prices for buttonhole makers: Class A, $1.30 per 
 hundred buttonholes; Class B, 90 cents per htuidred. 
 
 VII. For Determination by Arbitration. 
 
 That the following questions shall be submitted to the 
 arbitration of this Council, their decision to be rendered 
 within thirty days, and to be accepted as final and bind- 
 ing. 
 
 (o) Whether the pressers and piece workers shall 
 during eight weeks in each season be permitted to work 
 overtime on Saturdays until four o'clock. 
 
 (6) What legal holidays shall be observed in the 
 Cloak, Suit and Skirt Industry, and under what condi- 
 tions they shall be observed. 
 
 VIII. — It is distinctly understood that there shall be 
 no shop strike nor general strike, nor individual nor 
 general lockout during the term of this agreement. 
 
 IX. — The Union and the Association, with the assist- 
 ance of the Council, will, as soon as practicable, create a 
 Joint Board of Supervision and Enforcement of Stand- 
 ards throughout the industry. 
 
 X. — Since the Coxmcil will continue in existence for 
 study and constructive recommendations, it will be 
 available whenever the parties desire to consult with it, 
 and if either organization feels aggrieved against the 
 other, such organization may address the Council upon 
 the subject, and the Council wiU do the best it can to 
 assist. 
 
 Finally, since peace in industry, as in families and 
 among states, is the offspring of good will, and since no 
 peace can be sound or enduring that is not based on this 
 indispensable prerequisite, it is agreed that the leaders 
 
FINDINGS, ETC., OF COUNCIL OF CONCILIATION 287 
 
 on both sides shall exert their utmost endeavors to create 
 a spirit of mutual good will among the members of 
 their respective organizations, such good wiU taking the 
 specific form of a disposition to recognize the inherent 
 difficulties which each side has to meet — a spirit of large 
 patience under strain, and, withal, a belief in the better 
 elements which exist in human nature, be it among em- 
 ployers or wage earners, and the faith that an appeal 
 to these elements will always produce beneficent results. 
 These recommendations, when accepted by both 
 parties, shall constitute the agreement between them. 
 This agreement to enter into force on the date hereof 
 and to continue for the period of two (2) years, and 
 thereafter for like periods of two (2) years, unless ter- 
 minated by either party on two months' notice. 
 
 Any modification of the terms of the agreement, re- 
 quested by either party, shall be presented to the other 
 at least two (2) months before the termination of any 
 period. 
 
 Felix Adlee {Chairman), 
 Chahles L. Bernheimer, 
 Louis D. Brandeis, 
 Henry Bruere, 
 George W. Kirchwey, 
 Walter C. Noyes, 
 
 Council on Conciliation. 
 July 23, 1915. 
 
APPENDIX E 
 
 INDUSTRIAL AGREEMENTS 
 
 (Introduced 1912 by J. Ramsey MacDonald) 
 
 A Bill 
 
 TO 
 
 Make Agreements come to voluntarily between Employers 
 and Workmen in the Port of London legally enforcible on 
 the whole Trade. 
 
 Be it Enacted by the King's most Excellent Majesty, 
 by and with the advice and consent of the Lords Spiritual 
 and Temporal, and Commons, in this present Parliament 
 assembled, and by the authority of the same, as fol- 
 lows: — 
 
 1. Whenever and so long as an agreement between 
 employers and workmen in or about the Port of London 
 concerning wages, hours, or other conditions of labour is 
 registered by the Board of Trade under the provisions of 
 this Act, the terms of such an agreement shall be implied 
 terms of every contract for the employment of a work- 
 man in the Port of London, and any agreement applying 
 thereto concerning wages, hours, or other conditions of 
 labour, in so far as it is in contravention of this pro- 
 vision, shall be void. 
 
 2. (i) Any representative body of employers and 
 workmen in the Port of London who have made an 
 agreement regarding any of the matters referred to in 
 
 288 
 
INDUSTRIAL AGREEMENTS 289 
 
 the first section of this Act may apply to the Board of 
 Trade to have such an agreement registered under this 
 Act. 
 
 (2) The appKcation must be accompanied by copies 
 of the agreement, particulars of the representative char- 
 acter of the persons who have made the agreement, with 
 such other information as the Board of Trade may rea- 
 sonably require. 
 
 (3) The Board of Trade, on being satisfied that such 
 an agreement has been come to by persons representative 
 of employers and workmen in the trade, shall register 
 such agreement, but in no case shall the Board of Trade 
 refuse to register if the persons making application to be 
 registered either — 
 
 (a) Represent one-third of the employers and work- 
 men directly affected by the agreement; or 
 
 (b) Are persons who deal with at least one-half of the 
 total volume of the trade; 
 
 provided that if the representatives of the employers 
 and the workmen are appointed by unions, or federa- 
 tions, or other combinations, any employer or firm of 
 employers, and any workman engaged in the trade or 
 section of the trade subject to the agreement, is at liberty 
 to join the union, federation, or combination on reason- 
 able conditions. 
 
 (4) Any body of persons who have registered an agree- 
 ment under this Act shall be entitled to have their agree- 
 ment removed from the register on sending to the Board 
 of Trade a written application to that effect, and the 
 Board of Trade, on being satisfied that the persons who 
 made the agreement are no longer representative persons, 
 may themselves remove the agreement from the register. 
 
 3. In this Act the expression "Port of London" has 
 the hke meaning as it has in the Port of London Act, 
 
290 APPENDIX E 
 
 1908. The expression "workman" means a workman 
 who works wholly or in part within the area of the Port of 
 London. The expression "employer" means any person 
 or body of persons who employs workmen either wholly 
 or in part within the area of the Port of London. 
 
 4. This Act may be cited as the Lidustrial Agreements 
 Act, 1912. 
 
APPENDIX F 
 SKELETON OUTLINE OF PROVISIONS OF A BILL 
 
 I. Create a "National Industrial Board" with powers 
 analogous to those of the English Industrial Council 
 under the English "Trade Disputes Act." 
 
 II. Equal representation to organized labor, organized 
 employers, and the public, appointed by the President 
 for long terms. 
 
 III. Adequate salary paid to the Chairman (to be a 
 man of the type of Sir George Askwith). 
 
 IV. In addition to the powers included in the English 
 "Trade Disputes Act," give power to 
 
 {a) Consider and investigate all matters concerning 
 sanitation and safety. 
 
 (&) To revise trade agreements upon the appeal of the 
 parties. 
 
 (c) To hear appeals from Boards of Conciliation or 
 Arbitration estabhshed under trade agreements. 
 
 {d) To gather statistics upon all matters involving 
 wage increase. 
 
 V. All trade agreements to be validated by registra- 
 tion with the "National Industrial Board." 
 
 VI. Whenever it shall appear that the agreement 
 covers a substantial portion of the industry, the parties 
 to the agreement may apply for its extension to the entire 
 industry. Upon proper hearings, to those not yet 
 affected, the Industrial Board may make an order e«- 
 tending the agreement to cover the entire industry. 
 
 VII. Trade agreements to be authorized which may 
 
 291 
 
292 APPENDIX F 
 
 provide for the preferential employment of members of 
 the trades union party to the agreement, and for Wage 
 Scale Boards, Boards of Conciliation and Arbitration, 
 Grievance Boards, Boards of Sanitary Control, Boards of 
 Apprentices, etc., etc. 
 
 VIII. The National Industrial Board, before register- 
 ing any trade agreement, to make careful investigation of 
 the surrounding facts, and if it finds that the agreement 
 is made in good faith, and is for the best interests of the 
 working people and the employers in the industry, it 
 may certify to the fact, and its certificate shall raise an irre- 
 buttable presumption in any court of law or equity that such 
 agreement was in fact entered into in good faith, and not in 
 restraint of trade. 
 
 IX. Where agreements create methods of arbitration 
 by Boards of Arbitration, ConciUation, Grievances, or 
 the like, the decision in writing of such Board may be 
 filed in the ofiice of the clerk of any federal court, and a 
 motion may be made to confirm the report on notice to 
 the party against whom the decision has been rendered, 
 and when such decision shall be confirmed, a copy of the 
 decree may be entered in the clerk's ofiice. 
 
 X. An appeal may be taken from any award by a 
 Board of Arbitration to the National Industrial Board. 
 
 XI. Where any agreement voluntarily entered into 
 provides methods of arbitration or conciliation, it shall 
 be lawful for either party to terminate the same, upon 
 three months' notice, but if not terminated, it shall not 
 be lawful for either party to engage in any strike, walk- 
 out, or lockout before the controversy is submitted to 
 such tribunal. 
 
 Printed la the United States of America. 
 
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