organization. The work of the local boards is so laborious and incessant that the great magnates of the industry can not spare time to attend. **Moreover, * in a publicly conducted national conference, formed of equal numbers from each party, neither the representative workmen nor the representative employers dare concede anything to their opponents, or even submit to a compromise. The result is that every important issue is inevitably remitted by the conference to the umpire. Lord James has accordingly found himself in the remarkable position of imposing laws upon the entire boot and shoe making industry, prescribing, for instance, not only a minimum rate of wages but also a precise numerical limitation of the number of boy learners to be engaged by each employer, the conditions under which alone a wholesale trader may give work out to subcontractors, and the extent to which employers shall themselves provide workshop accommodation and the date before which such premises shall be in use. This, it is obvious, goes beyond collective bargaining. The awards of Lord James amount in fact to legislative regulation of the industry, the legislature in this case being not a representative assembly acting on behalf of the whole community, but a dictator elected by the trade." The employers protest against such far-reaching powers being given to one outside the trade. CHAPTER V. ARBITRATION IN OTHER EUROPEAN COUNTRIES. I. INTRODUCTION. Conciliation and arbitration of labor disputes, whether by private initiative, or by public authorities, have been carried much less far in the continental countries of Europe than in Great Britain or in the United States. The working people are far from being strongly organized in most of these countries, and class distinctions are such that employers are less willing to treat with their workingmen upon an equal plane than they are in Anglo-Saxon countries. To a far greater extent than in England or the United States the conditions of labor on the Continent are settled by the employer without consultation with the employees. Indeed, strikes and lockouts are much less common and on the whole less successful in these countries than in English-speaking lands. Voluntary systems of conciliation and arbitration are especially lacking upon the Continent of Europe. What has been accomplished in the direction of the peaceful settlement of labor difficulties has been for the most part through the initiative of the Government. This is possibly an indication of the general dependence of the people in the countries of continental Europe upon the public authorities. The most successful experience in the settlement of the relations of employers and employees by voluntary conciliation has been in Belgium in the great mines of Mariemont and Bascoup. Until very recently the only public machinery for adjusting labor disputes which has existed in most European countries has been after the fashion of the French conseils de prud'hommes (councils of experts), designed merely for the consideration of minor difficulties, chiefly between individual workmen and individual employers, and growing out of the terms of the existing labor contract rather than relating to the terms of future employment. That is, these agencies have nothing to do with settling strikes or with preventing those general disputes which lead to strikes. Their purpose is to avoid the expense, the formality, and the antagonism likely to occur from recourse to ordinary courts of justice for the settlement of minor differences between employers and employees. These councils have compulsory power within their sphere of action, in the same way as ordinary courts. Within the past 10 or 12 years, however, Belgium, France, and Germany have established systems of public boards or courts of arbitration, with a certain amount of power for the settlement of general labor disputes. It is noteworthy that, notwithstanding the tendency toward compulsory governmental action in so many directions in these countries, no attempt has yet been made to compel employers and employees to submit their general differences to arbitration. Apparently the most successful results through these public agencies for settling general disputes have been secured in France.1 The French Labor Department made a very thorough investigation of arbitration in 1891-92 (published by the Office du Travail, 1893). The report describes in detail the methods employed in different countries, both by public authority and private initiative, and the results accomplished. The following extracts from the introductory letter of transmittal give a very satisfactory view of the progress of the arbitration movement at that time: "England is the first of all foreign countries where the practice of arbitration has been introduced and rationally developed, the first also of which our study treats. You will note especially in the chapter which concerns it the extent to which recently the chambers of commerce have taken part in initiating the establishment of permanent councils of conciliation and arbitration, as well as the conditions and the results of the use of the system of sliding scales, by means of which, in the mines and metal industries, wages increase or diminish at the same time with the prices of coal and iron. "Certain English colonies-Australia, Canada-have also already taken the first steps in the direction of arbitration. * * * "In the United States the legislation of a large number of States intervenes in favor of the practice of arbitration. Four among them have even created, for this object, official and permanent boards, * * *The reports (of these boards) contain the most valuable information concerning the infinite variety of difficulties which are encountered in the matter. * * * "Belgium, by its Councils of Industry and Labor, created from 1889 on, offers another example of II. FRANCE. 1. Councils of experts.-The first systematic attempt on the part of any government to establish tribunals for the settlement of labor disputes was made in France. The so-called conseils de prud'hommes, or councils of experts, however, by no means correspond to the arbitration boards established in the United States. Their functions seldom if ever extend to the settlement of general labor disputes, strikes, or lockouts. They have to do rather with disputes between individual workmen and their employers, and in many cases regarding matters which would in this country be brought before courts of law. The first council of experts was created in 1806 for the city of Lyons at the solicitation of the silk merchants, but the law was so framed that similar councils might be organized by executive decree in other cities, and this privilege was quickly availed of. Other laws extending and modifying the system were passed in 1853, 1864, 1880, 1881, 1883, and 1884. Councils of experts are created for particular localities, and particular industries or groups of industries by decrees of the central government upon the recommendation of local bodies. They must be composed of not less than 6 members, exclusive of the president and vice-president. An equal number of members is elected by employers and by employees. Every employer 25 years of age who has carried on his trade for 5 years is entitled to vote for employer members, while superintendents, foremen, and workingmen of the same age and experience vote for representatives of the employees. Only persons 30 years of age or over are eligible for election. The term of service of members is 6 years, and one-half the members retire every 3 years. The members serve in general without pay. The president and vice-president of a council are elected by the council itself from among its own members. When the president is a representative of the employers, the vice-president must be a representative of the employees, and vice versa. A "special bureau" is established within each council, consisting of 1 employer and I employee, whose duty it is to terminate minor disputes by means of conciliation, if possible, with appeal to the "general bureau or bureau of judgment. This general bureau is composed of the president and vicepresident of the council and an equal number, not less than 2, of employer and workingman members. The procedure before both of these bureaus is simple and inexpensive. The decisions are given by a majority vote of the members. The jurisdiction of these councils of experts relates exclusively to matters arising out of the labor contract or out of apprenticeship. When the amount involved in the dispute does not exceed 200 francs, the judgment of the council is final. These boards have undoubtedly performed a very useful function in avoiding the expense and the antagonism which would arise if the countless minor disputes between employers and their individual employees were brought before the ordinary law courts. In a large proportion of these cases conciliation is effected without a formal decision of the council, while when such decisions are rendered they have the force of orders of court. a legal and official organization of industrial arbitration; but in the same country the collieries of Mariemont and Bascoup possess councils of conciliation and arbitration due to private initiative, the operation of which, constantly improved, dates back 15 years, and has produced the most fortunate results. * **In the other European States the question which occupies us has been, hitherto, less clearly defined and less clearly solved. Although in the German and Austrian laws concerning industry there are found some provisions regarding arbitration in case of strikes, their application as yet has been only very limited. We can point out only certain instances of recourse to arbitration which have taken place, aside from all legal formalities, in Germany, Austria, Holland, and Sweden, and refer to two industrial establishments at Berlin where councils of conciliation exist, established upon the type of Mariemont. "The history of arbitration in France ends the volume. This history, although little rich as yet in established and conclusive results, nevertheless presents already numerous and interesting attempts which show the existence of a current of opinion decidedly in favor of the peaceful settlement of industrial disputes. As indicating this general tendency of thought, I cite only the provisions in the by-laws of a large number of unions of employers and unions of workmen, the existence since 1874 of a joint board in the Paris paper industry, the creation in 1877 of a permanent arbitration commission by the printers of Rouen, the persistently pursued efforts during the past 10 years on the part of the French Federation of Book Workers in favor of the methods of conciliation, and, finally, the repeated appeals made to arbitration in the cases of important strikes." It is interesting to observe that nearly one-third of this report of 600 pages is taken up with an account of arbitration and conciliation in Great Britain, and about as much more with the description of arbitration in the United States. The amount of space given to Belgium is less than one-third as great as that given to either of these countries, while to Germany, Austria, the Netherlands, and Sweden only a few pages each are given. 1 Bulletin, Department of Labor, vol. iv, pp. 851-854. The following is an extract from the last official report available as to the working of the councils: "In 1897 the special bureaus of the councils of experts have had before them 51,326 disputes between employers and workmen, 32,926 being in regard to ques tions of wages. They have brought about conciliation between the parties in 21,317 cases, or 57 per cent of those decided. In 15,652 cases, or 43 per cent, their efforts have failed. The other cases have been withdrawn or remain unsettled. In the general bureau the councils have had before them 15,881 cases, of which they have decided 6,592, the parties withdrawing in 9,045 cases, and 244 remaining unsettled at the close of the year. There were 803 appeals to the tribunals of commerce; in 195 cases the judgment was affirmed and in 506 it was reversed." (Bulletin de l'Office du Travail, 7me année (1900), p. 690.) 2. Arbitration tribunals under law of 1892.-It must be remembered that the French councils of experts do not undertake to settle general labor disputes or to deter mine in any way the future conditions of employment. The first attempt to establish in France public tribunals for the settlement of general labor disputes dates from 1892. The law passed in that year provides that any dispute between employers and employees may be submitted to a board of conciliation or of arbitration. The employers or employees may, either jointly or separately, address a declaration to the justice of the peace of the canton setting forth the character of the dispute. The justice of the peace must give notice of the receipt of this declaration to both the opposing parties and they must, within 3 days, send their responses. If they accept the overtures for conciliation each party must designate delegates to represent it, not to exceed 5 persons. The justice of the peace must urge these delegates or the parties to organize a committee of conciliation. The meeting of the committee must take place in the presence of the justice of the peace, who may be appointed by the committee to preside over its discussions. If an agreement can not be reached by such a committee of conciliation, the justice of the peace invites the parties to appoint one or more arbitrators on each side, or to select a common arbitrator. If arbitrators co chosen can not reach a solution of the dispute they may choose a new arbitrator to act as umpire. If they fail to agree upon an umpire he shall be named by the president of the civil tribunal (a higher court than that of the justice of the peace). Aside from the provisions for the initiation of conciliatory measures by the parties, the law prescribes that the justice of the peace must, in the absence of action on their part, invite the employers and employees to state to him the matter in dispute and to enter upon procedure for conciliation and arbitration. There is no provision for enforcing the decision of arbitrators, further than a requirement that the decision shall be made a matter of record. The statute of 1892 in full is as follows: The Senate and the Chamber of Deputies have adopted, the President of the Republic promulgates, the following law: ARTICLE 1. Employers, workmen, or employees, between whom a dispute of a collective character relating to conditions of employment has arisen, may submit the questions which divide them to a committee of conciliation, or, in default of an agreement of this committee, to a council of arbitration, and these shall be constituted in the following manner. ART. 2. The employers, workmen, or employees may, together or separately, in person or by proxy, address a declaration in writing to the justice of the peace (juge de paix) of the canton or one of the cantons in which the dispute has arisen, and shall contain 1. The names, capacities, and domiciles of the applicants or their proxies. 2. The matter of dispute, with a succinct account of the motives pleaded by the other side (partie). 3. The names, capacities, and domiciles of the persons to whom the proposal of conciliation or arbitration should be notified. 4. The names, capacities, and domiciles of the delegates chosen from amongst those concerned by the applicants, in order to assist or represent them, the number of these delegates not exceeding 5. ART. 3. The justice of the peace delivers acknowledgment of the receipt of this declaration, with indication of the date and hour of the deposit, within 24 hours, to the opposing party or its representatives by letter or, if need be, by notices posted on the gates of the courts of justice of the canton and on those of the mayoralty of the commune in which the dispute has arisen. ART. 4. On receipt of this notification or within 3 days those concerned must send their reply to the justice of the peace. The period having passed, their silence is taken as a refusal. If they accept, they give in their reply the names, capacities, and domiciles of the delegates chosen to assist or represent them, the number of these latter not exceeding 5. If the departure or absence of the persons to whom the proposal is notified or the necessity of consulting the principals (mandants), partners, or an administrative council does not permit of a reply within 3 days, the representatives of the said persons should within the 3 days declare what is the delay necessary for arrangement of a reply. This declaration is transmitted by the justice of the peace to the applicants within 24 hours. ART. 5. If the proposal is accepted, the justice of the peace urges (invite d'urgence) the parties or their delegates to form among them a committee of conciliation. The meetings take place in the presence of the justice of the peace, who may be appointed by the committee to preside at the debates. ART. 6. If an agreement is arrived at as to the conditions of conciliation, the conditions are set down in a report drawn up by the justice of the peace and signed by the parties or their delegates. 1 Bulletin Department of Labor, Vol. IV, p. 854. ART. 7. If an agreement is not arrived at, the justice of the peace invites the parties to appoint either one or more arbitrators each or a common arbitrator. If the arbitrators do not agree as to the solution of the dispute, they may choose a new arbitrator to act as umpire. ART. 8. If the arbitrators can neither decide on the solution of the dispute nor agree as to the new arbitrator, they must declare the fact in the report, and this arbitrator will be named by the presi dent of the civil tribunal after inspection of the report, which shall be sent to him forthwith by the justice of the peace. ART. 9. The decision on the points at issue (fond) which has been arrived at, revised and attested by the arbitrators, is sent to the justice of the peace. ART. 10, When a strike occurs, in default of initiative on the part of those concerned in it, the justice of the peace, ex officio, and by the means indicated in article 3, invites the employers, workmen, or employed, or their representatives, to make known to him within 3 days 1. The matter of dispute with a succinct account of the alleged motives. 2. The acceptance or refusal of conciliation and arbitration. 3. The names, capacities, and domiciles of the delegates chosen, where the case occurs (le cas echeant), by the parties, the number of the persons chosen by each side not exceeding 5. The delay of 3 days may be increased for the reasons and under the conditions indicated in article 4. If the proposal is accepted, it shall proceed conformably to articles 5 and following. ART. 11. The reports and decisions mentioned in articles 6, 8, and 9 above are preserved in the minutes at the office of the justice of the peace, who sends a copy free of charge to each of the parties and addresses another to the minister of commerce and industry through the prefect. ART. 12. The demand for conciliation and arbitration, the refusal or failure to reply of the opposing party, the decision of the committee of conciliation or of the arbitrators notified by the justice of the peace to the mayor of each of the communes over which the dispute is spread, are made public by each of these mayors, who post them up in the place assigned to official notices. The posting up of these decisions may be done by the parties concerned. The notices are exempted from stamp duty. ART. 13. The premises necessary for the meetings of the committees of conciliation or councils of arbitration are provided, heated, and lighted by the communes in which they meet. The expenses arising therefrom are included among the compulsory expenses of the communes. The outlay of the committees of conciliation and arbitration shall be fixed by a notice of the prefect of the department, entered among the compulsory departmental expenses. ART. 14. All deeds executed in carrying out the present law are exempt from stamps and registered gratis. ART. 15. The arbitrators and the delegates nominated under the present law must be French citizens. In professions or trades where women are employed they may be chosen as delegates on the condition that they are of French nationality. ART. 16. The present law applies to the colonies of Guadaloupe, Martinique, and the Reunion. 3. Working of arbitration law of 1892.-This new French law has already proved very advantageous. The French people are probably somewhat more disposed to accept Government intervention than those of Saxon descent. The following statement gives a summary in the cases in which recourse has been had to the law of 1892 regarding conciliation and arbitration for the year 1898 and for the preceding 5 years collectively:1 Summary of cases in France in which recourse was had to conciliation and arbitration, 1893 to 1897, and 1898. The 487 cases of recourse to the law related to but 486 disputes. There were but 126 disputes settled by committees of conciliation, 3 of them being counted twice, because 2 committees were formed in each of these 3 cases. *Figures here apparently should be 123; those given, however, are according to the original. As This table shows that the law was applied in 197 cases during the year 1899. 1 Bulletin Department of Labor, V, p. 400. |