CHAPTER III.

GOVERNMENTAL ARBITRATION IN THE UNITED STATES.

DIGEST OF STATE AND NATIONAL LAWS ESTABLISHING STATE BOARDS OF ARBITRATION AND PROVIDING FOR LOCAL BOARDS OF ARBITRATION, WITH SUMMARY OF THE WORKING OF SUCH BOARDS.

UNITED STATES.

1. Act of 1888.-The Congress of the United States has enacted legislation with a view to promoting the peaceful settlement of labor disputes as regards interstate cominerce. The first on this subject was passed in 1888. One portion of the act was of a strictly voluntary character, permitting the parties to labor disputes on railways and other transportation lines to agree to the establishment of a board of arbitration for the settlement of that particular dispute. Each party was to appoint one arbitrator, and these were to select a third. A board thus constituted was given power to administer oaths and subpoena witnesses, and to require the production of papers. There was no provision regarding the enforcement of awards, but the arbitrators were directed to announce their findings of facts and decisions in a public manner and to file them with the Commissioner of Labor of the United States for further publication. Publicity was thus the only means of enforcing such decisions under this act. Another provision of the act authorized the President of the United States, in case of any particular controversy, to select two commissioners who, together with the United States Commissioner of Labor, should investigate the controversy, with a view to ascertaining the causes and conditions, and the best means of adjusting the dispute. The result of the examination of such a commission was to be immediately reported to the President and to Congress. These special commissioners were given authority to take testimony and require the production of books and papers. They might advise the parties what ought to be done to adjust the dispute, and might make a written decision, which should be made public.

It does not appear that any use was ever made of the provisions for voluntary arbitration under this act. In connection with the great railway strikes of 1894, however, the President saw fit to appoint a special commission under the authority of this act, and it made an elaborate investigation regarding the Chicago strike and the others growing out of it. Most of the investigations of this United States Strike Commission were made after the dispute had actually been settled, and therefore had no influence in bringing about an adjustment. The investigations of the commission, as well as the direct experience of the public of the evils of the strike, led to a desire to establish more effective means of preventing such disputes in the future. The recommendations of the Strike Commission on this subject are more fully set forth elsewhere. (See Appendix.)

2. Act of 1898.-Largely through the influence of the Strike Commission, Congress passed an act in 1898, by which it was hoped to secure more effective intervention in strikes and lockouts on interstate carriers. This act provides that whenever any controversy arises either party may request the intervention of the chairman of the Interstate Commerce Commission and the Commissioner of Labor. These officials shall at once use their best efforts by mediation and conciliation to bring about a settlement, and if unsuccessful shall try to persuade the parties to submit to arbitration.

The act provides, as did the law of 1888, for the voluntary establishment of boards of arbitration, differing mainly in the fact that it makes their decisions binding. If the parties agree to establish such a board, one member shall be named by the employer, a second by the labor organization or organizations to

1 Ch. 1063, 25 Stats. at Large, 501.

2 Acts of 1898, ch. 370.

which the employees belong, while a third arbitrator shall be named by the chairman of the Interstate Commerce Commission and the Commissioner of Labor. The recognition of labor organizations in this provision for arbitration is significant. The agreement for submission to arbitration shall contain a provision that pending the rendering of a decision, which must be made within 30 days from the date of the appointment of the third arbitrator, work shall be continued under the conditions existing prior to the dispute. The parties must agree to abide by the decision, and the decision may be enforced by the United States courts by equity process, although a special proviso declares that no injunction or legal process shall be issued to compel the performance by any laborer of a contract for personal service. It is somewhat difficult to reconcile this proviso with the further declaration that employees, if dissatisfied with the award, shall yet not quit the service of the employer before 3 months, without giving 30 days' notice of intention to quit. Similarly the employer may not dismiss any employee because of dissatisfaction with the award without giving 30 days' notice. Subject to these provisions, the award is binding for a year upon the employers and upon the members of the labor organization taking part in the arbitration, or upon workingmen who are not members in case they assent to the award. The act provides for appeal to the United States courts from the decisions of arbitrators as regards matters of law.

As yet there has been no case of arbitration under the act of 1898. In one or two instances the chairman of the Interstate Commerce Commission and the Commissioner of Labor have put themselves in communication with the parties to a dispute, but the railway companies have refused to arbitrate. It is by no means impossible, however, that should any dispute of so serious a nature as that of 1894 arise public opinion would virtually force the parties to submit to arbitration in accordance with the provisions of the United States law.

The provisions of the act of 1898, as far as they have to do with arbitration, are in full as follows:

AN ACT Concerning carriers engaged in interstate commerce and their employees.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the provisions of this act shall apply to any common carrier or carriers and their officers, agents, and employees, except masters of vessels and seamen, as defined in section forty-six hundred and twelve, Revised Statutes of the United States, engaged in the transportation of passengers or property wholly by railroad, or partly by railroad and partly by water, for a continuous carriage or shipment from one State or Territory of the United States or the District of Columbia to any other State or Territory of the United States or the District of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States.

The term "railroad" as used in this act shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corporation operating a railroad, whether owned or operated under a contract, agreement, or lease; and the term "transportation' shall include all instrumentalities of shipment or carriage.

The term "employees" as used in this act shall include all persons actually engaged in any capacity in train operation or train service of any description, and notwithstanding that the cars upon or in which they are employed may be held and operated by the carrier under lease or other contract: Provided, however, That this act shall not be held to apply to employees of street railroads and shall apply only to employees engaged in railroad train service. In every such case the carrier shall be responsible for the acts and defaults of such employees in the same manner and to the same extent as if said cars were owned by it and said employees directly employed by it, and any provisions to the contrary of any such lease or other contract shall be binding only as between the parties thereto and shall not affect the obligations of said carrier either to the public or to the private parties concerned.

SEC. 2. That whenever a controversy concerning wages, hours of labor, or conditions of employment shall arise between a carrier subject to this act and the employees of such carrier, seriously interrupting or threatening to interrupt the business of said carrier, the chairman of the Interstate Commerce Commission and the Commissioner of Labor shall, upon the request of either party to the controversy, with all practicable expedition, put themselves in communication with the parties to such controversy, and shall use their best efforts by mediation and conciliation to amicably settle the same; and if such efforts shall be unsuccessful, shall at once endeavor to bring about an arbitration of said controversy in accordance with the provisions of this act.

SEC. 3. That whenever a controversy shall arise between a carrier subject to this act and the employees of such carrier which can not be settled by mediation and conciliation in the manner provided in the preceding section, said controversy may be submitted to the arbitration of a board of three persons, who shall be chosen in the manner following: One shall be named by the carrier or employer directly interested; the other shall be named by the labor organization to which the employees directly interested belong, or, if they belong to more than one, by that, one of them which specially represents employees of the same grade and class and engaged in services of the same nature as said employees so directly interested: Provided, however, That when a controversy involves and affects the interests of two or more classes and grades of employees belonging to different labor organizations, such arbitrator shall be agreed upon and designated by the concurrent action of all such labor organizations; and in cases where the majority of such employees are not members of any labor organization, said employees may by a majority vote select a committee of their own number, which committee shall have the right to select the arbitrator on behalf of said employees. The two thus chosen shall select the third commissioner of arbitration; but, in the event of their failure to name such arbitrator within five days after their first meeting, the third arbitrator shall be named by the commissioners named in the preceding section. A majority of said arbitrators shall be competent to make a valid and binding award under the provisions hereof. The submission shall be in writing;

shall be signed by the employer and by the labor organization representing the employees; shall specify the time and place of meeting of said board of arbitration; shall state the questions to be decided, and shall contain appropriate provisions by which the respective parties shall stipulate, as follows:

First. That the board of arbitration shall commence their hearings within ten days from the date of the appointment of the third arbitrator, and shall find and file their award, as provided in this section, within thirty days from the date of the appointment of the third arbitrator; and that pending the arbitration the status existing immediately prior to the dispute shall not be changed: Provided, That no employee shall be compelled to render personal service without his consent.

Second. That the award and the papers and proceedings, including the testimony relating thereto, certified under the hands of the arbitrators, and which shall have the force and effect of a bill of exceptions, shall be filed in the clerk's office of the circuit court of the United States for the district wherein the controversy arises or the arbitration is entered into, and shall be final and conclusive upon both parties, unless set aside for error of law apparent on the record.

Third. That the respective parties to the award will each faithfully execute the same, and that the same may be specifically enforced in equity so far as the powers of a court of equity permit: Provided, That no injunction or other leading process shall be issued which shall compel the performance by any laborer against his will of a contract for personal labor or service.

Fourth. That employees dissatisfied with the award shall not by reason of such dissatisfaction quit the service of the employer before the expiration of three months from and after the making of such award without giving thirty days' notice in writing of their intention so to quit. Nor shall the employer dissatisfied with such award dismiss any employee or employees on account of such dissatisfaction before the expiration of three months from and after the making of such award without giving thirty days' notice in writing of his intention so to discharge.

Fifth. That said award shall continue in force as between the parties thereto for the period of one year after the same shall go into practical operation, and no new arbitration upon the same subject between the same employer and the same class of employees shall be had until the expiration of said one year if the award is not set aside as provided in section four. That as to individual employees not belonging to the labor organization or organizations which shall enter into the arbitration, the said arbitration and the award made therein shall not be binding, unless the said individual employees shall give assent in writing to become parties to said arbitration.

SEC. 4. That the award being filed in the clerk's office of a circuit court of the United States, as hereinbefore provided, shall go into practical operation, and judgment shall be entered thereon accordingly at the expiration of ten days from such filing, unless within such ten days either party shall file exceptions thereto for matter of law apparent upon the record, in which case said award shall go into practical operation and judgment be entered accordingly when such exceptions shall have been finally disposed of either by said circuit court or on appeal therefrom.

At the expiration of ten days from the decision of the circuit court upon exceptions taken to said award, as aforesaid, judgment shall be entered in accordance with said decision unless during said ten days either party shall appeal therefrom to the circuit court of appeals. In such case only such portion of the record shall be transmitted to the appellate court as is necessary to the proper underStanding and consideration of the questions of law presented by said exceptions and to be decided. The determination of said circuit court of appeals upon said questions shall be final, and being certified by the clerk thereof to said circuit court, judgment pursuant thereto shall thereupon be entered by said circuit court.

If exceptions to an award are finally sustained, judgment shall be entered setting aside the award. But in such case the parties may agree upon a judgment to be entered disposing of the subject-matter of the controversy, which judgment when entered shall have the same force and effect as judgment entered upon an award."

SEC. 5. That for the purposes of this act the arbitrators herein provided for, or either of them, shall have power to administer oaths and affirmations, sign subpoenas, require the attendance and testimony of witnesses, and the production of such books, papers, contracts, agreements, and documents material to a just determination of the matters under investigation as may be ordered by the court; and may invoke the aid of the United States courts to compel witnesses to attend and testify and to produce such books, papers, contracts, agreements, and documents to the same extent and under the same conditions and penalties as is provided for in the act to regulate commerce, approved February fourth, eighteen hundred and eighty-seven, and the amendments thereto.

SEC. 6. That every agreement of arbitration under this act shall be acknowledged by the parties before a notary public or clerk of a district or circuit court of the United States, and when so acknowledged a copy of the same shall be transmitted to the chairman of the Interstate Commerce Commission, who shall file the same in the office of said commission.

Any agreement of arbitration which shall be entered into conforming to this act, except that it shall be executed by employees individually instead of by a labor organization as their representative, shall, when duly acknowledged as herein provided, be transmitted to the chairman of the Interstate Commerce Commission, who shall cause a notice in writing to be served upon the arbitrators, fixing a time and place for a meeting of said board, which shall be within fifteen days from the execution of said agreement of arbitration: Provided, however, That the said chairman of the Interstate Commerce Commission shall decline to call a meeting of arbitrators under such agreement unless it be shown to his satisfaction that the employees signing the submission represent or include a majority of all employees in the service of the same employer and of the same grade and class, and that an award pursuant to said submission can justly be regarded as binding upon all such employees. SEC. 7. That during the pendency of arbitration under this act it shall not be lawful for the employer, party to such arbitration, to discharge the employees, parties thereto, except for inefficiency, violation of law, or neglect of duty; nor for the organization representing such employees to order, nor for the employees to unite in, aid, or abet, strike against said employer; nor, during a period of three months after an award under such an arbitration, for such employer to discharge any such employees, except for the causes aforesaid, without giving thirty days' written notice of an intent so to discharge; nor for any of such employees, during a like period, to quit the service of said employer without just cause, without giving to said employer thirty days' written notice of an intent so to do; nor for such organization representing such employees to order, counsel, or advise otherwise. Any violation of this section shall subject the offending party to liability for damages: Provided, That nothing herein contained shall be construed to prevent any employer, party to such arbitration, from reducing the number of its or his employees whenever in its or his judgment business necessities require such reduction.

SEC. 8. That in every incorporation under the provisions of chapter five hundred and sixty-seven of the United States Statutes of eighteen hundred and eighty-five and eighteen hundred and eighty-six it must be provided in the articles of incorporation and in the constitution, rules, and by-laws that a member shall cease to be such by participating in or by instigating force or violence against persons or property during strikes, lockouts, or boycotts, or by seeking to prevent others from working through violence threats, or intimidations. Members of such incorporations shall not be personally liable for

the acts, debts, or obligations of the corporations, nor shall such corporations be liable for the acts of members or others in violation of law, and such corporations may appear by designated representa tives before the board created by this act, or in any suits or proceedings for or against such corporations or their members in any of the Federal courts.

SEC. 9. That whenever receivers appointed by Federal courts are in the possession and control of railroads, the employees upon such railroads shall have the right to be heard in such courts up on all questions affecting the terms and conditions of their employment, through the officers and representa tives of their association, whether incorporated or unincorporated, and no reduction of wages shall be made by such receivers without the authority of the court therefor upon notice to such employees, said notice to be not less than twenty days before the hearing upon the receivers' petition or application, and to be posted upon all customary bulletin boards along or upon the railway operated by such receiver or receivers.

SEC. 11. That each member of said board of arbitration shall receive a compensation of ten dollars per day for the time he is actually employed, and his traveling and other necessary expenses; and a sum of money sufficient to pay the same, together with the traveling and other necessary and proper expenses of any conciliation or arbitration had hereunder, not to exceed ten thousand dollars in any one year, to be approved by the chairman of the Interstate Commerce Commission and audited by the proper accounting officers of the Treasury, is hereby appropriated for the fiscal years ending June thirtieth, eighteen hundred and ninety-eight, and June thirtieth, eighteen hundred and ninety-nine, out of any money in the Treasury not otherwise appropriated.

SEC. 12. That the act to create boards of arbitration or commission for settling controversies and differences between railroad corporations and other common carriers engaged in interstate or territorial transportation of property or persons and their employees, approved October first, eighteen hundred and eighty-eight, is hereby repealed.

Approved, June 1, 1898.

CALIFORNIA.

California enacted in 1891' an act providing for a State board of arbitration similar in general nature to the State boards in Massachusetts, New York, and other States. The board was to consist of 3 members, was to have authority to investigate when either or both parties to a dispute should request it, and to render a decision binding for 6 months, if both parties should join in the application. Local boards of arbitration were also authorized.

It is stated, however, by the commissioner of labor statistics of California that, although a board was appointed at first under the act, it does not appear that it ever held a meeting or exercised any functions, and that no successors to the original board were ever appointed. The law seems to be a complete dead letter.

COLORADO.

1. Statutory provisions.-Composition of board.-The governor, with the consent of the senate, is to appoint a State board of 3 members, one an employer or representative of an employers' association, one selected from some labor organization, and a third appointed upon the recommendation of these two, who shall act as secretary. The term of office is two years.

Investigation on application of parties.-In this State there is no provision for investigation on the application of one party only, although perhaps this would be covered by the authority of the board to endeavor to mediate in any strike coming to its knowledge. The law simply provides that it is lawful for the parties to any labor dispute to submit it jointly to its decision. In this case they must agree to abide by the decision of the board and to continue at work pending such decision, provided it shall be given within 10 days after the completion of the investigation. The decision would thus nominally be binding, but the law contains no special provision as to the time in which it shall continue in force or as to the method of compelling obedience.

Investigation and mediation on initiative of board.-Wherever it shall come to the knowledge of the board, by notice from a mayor or other local officer or in any other way, that a strike is threatened, or has occurred, it is the duty of the board to communicate with the employer and employees and to try by mediation to effect a settlement. It is the implied duty of the mayor or other local officer to give notice of strikes.

The State board may, if it deems advisable, in default of other settlement, investigate the cause of the controversy and publish a report stating the cause and assigning the responsibility or blame.

Compensation.-Two members are paid $500 each annually, and the secretary

$1,200.

Power to summon witnesses.-The board of arbitration is given, without very specific provisions, general power, such as that of a court, to summon witnesses and require the production of books and papers.

Local boards of arbitration and conciliation.-The parties to any controversy may agree to submit their dispute to a local board, the composition of which may either be mutually agreed upon or the employer may designate one member, the

employees another, and the two may select a third, who shall be the chairman. This board shall have all the powers of the State board, and its jurisdiction is exclusive, although it may ask advice of the State board. The decision is binding to whatever extent may have been agreed upon by the parties in making the submission. These local arbitrators are paid by the town or county $3 per day, not exceeding 10 days for any one arbitration.

2. Work of Colorado board.-The State board of arbitration of Colorado was established in the latter part of 1896. Its second annual report, covering the period from November 11, 1897, to November 11, 1898, stated that practically no labor difficulties had arisen in Colorado during that time except in the coal-mining industry in the northern part of the State, and in settling the difficulties there the State board took active part. This one district, which comprises a considerable number of mines, has been the scene of several strikes during recent years. In January, 1898, the workmen at one of the mining centers demanded an increase in wages, which finally brought about a suspension at several other points in the northern Colorado coal district, involving about 700 men. The district union of miners applied to the State board for investigation of the difficulty, and about the same time the operators expressed a willingness to submit the dispute to arbitration. Both sides accordingly entered into a formal agreement to arbitrate, and the State board made an investigation, which was completed on February 11. The miners had meantime gone back to work, the strike being only of 9 days' duration. The intervention of the State board probably prevented the continuation of the strike for a long period. The decision, it is to be noted, granted practically all the demands of the men for an increase in wages at the mines particularly involved. (Second Annual Report State Board of Arbitration of Colorado, pp. 3-12.)

CONNECTICUT.

Statutory provisions. It is stated by the secretary of the Connecticut board of arbitration, that while the board is organized the courts have so interpreted the law as to deprive it of ail important powers, and that therefore no practical use has been made of the provisions in the Connecticut law. The law is, however, summarized for the sake of completeness.

Composition of board.-The board of arbitration is to consist of three members, one being chosen from the political party casting the highest number of votes, one from the party casting the next highest number, and a third from an incorporated labor organization of the State.

Investigation on application of parties.-In this State there is no provision for investigation on the application of one party only, although perhaps this would be covered by the authority of the board to endeavor to mediate in any strike coming to its knowledge. The law simply provides that it is lawful for the parties to a labor dispute to submit it jointly to its decision. In this case they must agree to abide by the decision of the board and to continue at work pending such decision, provided it shall be given within 10 days after the completion of the investigation. The decision would thus nominally be binding, but the law contains no special provision as to the time in which it shall continue in force or as to the method of compelling obedience.

Investigation and mediation on initiative of board. -Whenever it shall come to the knowledge of the board in any way that a strike is threatened or has occurred, it is the duty of the board to communicate with the employer and employees and to try by mediation to effect a settlement.

The State board may, in default of other settlement, investigate the cause of the controversy.

Compensation of board.-Five dollars per day of actual service, and expenses. Power to summon witnesses.-The board of arbitration is given, without very specific provisions, general power, such as that of a court, to summon witnesses and require the production of books and papers.

IDAHO.

1. Statutory provisions-Composition of State labor commission.-The governor, with the consent of the senate, is to appoint a State board of three members, one an employer or representative of an employers' association, one selected from some labor organization, and a third appointed on the recommendation of these two. The term of office is 6 years.

Investigation on application of parties.-The board is bound to take cognizance

1 Public Laws, 1895, ch. 239.

2 Laws of 1897, p. 141; 1899, p. 430.