completed. In cases of intoxication on duty, insubordination, or of vicious conduct, employees will be taken out of the service pending final decision. Superintendents will issue bulletins from time to time, posting the same at district and division terminals. These bulletins are intended to be educational. They will give a brief account of each case which has resulted in discipline, stating how the trouble or damage could have been avoided—omitting names of the persons at fault. Employees are enjoined to study these bulletins with care, that they may profit by the experience of others.

This system of discipline, it is hoped, will prove of mutual advantage to the company and its employees. Those guilty of offenses not requiring dismissal will not suffer loss of time beyond that required for investigation, and will be given an opportunity by subsequent good service to clear their records.

The operation of the system should engender a feeling of security, in the confidence that faithful service is recognized and will be rewarded by uninterrupted employment and the certainty that reward and promotion will not follow indifferent service.

The company expects the system to promote harmony and to stimulate employees to an earnest cooperation with its officers in attaining a more efficient service.

A. W. SULLIVAN,
General Superintendent.

There are many signs that the railway corporations are being forced to take every precaution against the employment of incompetent men, and that they are becoming more severe in their regulations concerning the conduct of their employees. In view of the strict accountability to which the corporations are held when accidents occur through their men, renewed effort has been made of late on the Vandalia Line and also on other lines to weed out the employment of any men who use intoxicants at all. In the last year an order issued by the Southern Railway system in South Carolina declares that all employees that smoke cigarettes must cease to do so or lose their positions, and that in the future no one will be engaged by the road who is a cigarette smoker.

The Atlanta Division of the Southern Railway has also the same rule, which is based on the ground that the habitual cigarette smoker is untrustworthy. The brotherhoods cooperate with the corporations in discouraging the use of intoxicating liquors by their members, and lend their aid in anything that tends to improve the moral conduct of the railroad men.

The question of discharge has, however, other aspects than those provided for in a system of discipline by record and in general regulations for the improvement of the labor force. It involves a discussion of some of the most perplexing legal and economic questions relating to the right of discharge from what is essentially more than an ordinary form of employment. This question will be taken up in the next section.

§ 9. THE BLACKLISTING OF RAILWAY EMPLOYEES-THE COMMON AND STATUTE LAW CONCERNING THE RIGHT TO QUIT WORK AND TO STRIKE.

The question of blacklisting of railroad employees relates primarily to the practice of some roads of keeping a list of employees discharged for serious offenses and of sending such a list to other employers of the same class of labor, with a view to preventing such discharged employees from obtaining employment elsewhere.

It is asserted by many witnesses before the Industrial Commission (see Vol. IV, Transportation, Digest of Evidence and General Index) that such practice has been quite common in the past, although most railroad officials claim that it is now entirely done away with, especially since the passage of the United States arbitration act of 1898, which made it illegal. It is a point upon which, however, railroad employees feel very bitterly. It is very easy for a discharged employee, who finds it difficult to get work because he does not have a satisfactory recommendation from his last employer, to imagine that that employer is working aggressively to prevent him from obtaining employment, even when that is not the case. Such a supposition is perfectly natural, and undoubtedly much of the feeling that exists among railroad employees as to the prevalence of blacklisting is due to such figments of imagination. The president of a prominent railroad, who has been connected with a large number of railroads in different parts of the United States, who himself was accused of having written a letter of recommendation upon a sheet of water-marked paper, which was supposed to be notice to his fellow railroad officers that his words of general commendation were to be taken with an opposite meaning, was as much astonished to see the evidences of water-mark in the paper as those to whom it was shown for the first time as positive evidence of a conspiracy against an innocent workingman. The fact that such stories circulate at par value among railroad employees is sufficient indication that the subject needs investigation, if for no other reason than to show clearly the unreasonableness of such suppositions. No one will deny, however, that there is the possibility of serious injury being inflicted through the blacklist. A corporation has an undoubted right to discharge an employee for any cause that it deems sufficient, even if it be merely because such employee has sympathized with interests inimical to the corporation, or because he has joined a labor organization, or has taken part in a strike, direct or sympathetic. The workingman, on the other hand, has the undoubted right to strike, to quit work, to sever his connection with the corporation, for any cause he deems sufficient. The corporation, however, insists that the man who strikes shall not interfere with its right to employ other men in his place; and the employee has an equal right to insist that the corporation shall not interfere with his seeking employment elsewhere. These rights are mutual and equal, and the courts will sustain them.

The difficulty discussed under the head of Blacklisting" has arisen very largely since the Chicago strike in 1894. Many of the men who participated in that organized movement against the railroads of the country found great difficulty in securing employment anywhere, and charges of blacklisting were very frequent and probably not entirely unfounded. Mr. William J. Strong, in his testimony before the commission (Volume IV, page 503), has reviewed at considerable length the history of some of the strongest cases of alleged blacklisting. It is not necessary to add here anything to his statement. It states clearly the opinions of the most radical railroad employees. If they are well founded, the remedies for such illegal use of the blacklist, or for the abuses charged, are, under the common law, uncertain. Mr. F. J. Stimson, in his Handbook of the Labor Laws of the United States, says that it is difficult for a person injured by a boycott, blacklist, or conspiracy, whether employer or employee, to get redress in the criminal courts, and hence the popularity of the remedy given under courts of equity known as the injunction. He seems to think that criminal courts might construe an exchange of blacklists to be an unlawful combination, but in view of the uncertainty of judicial procedure in this direction 17 States and 1

1

Territory have passed statutes forbidding blacklisting, by which is meant the exchange of a list of employees against whom an employer has a complaint, with other employers, for the purpose of preventing them from employing such employees. North Dakota and Utah are the only States which prohibit such an exchange of blacklists between corporations by constitutional enactment. Iowa, Indiana, Wisconsin, Alabama, Virginia, Montana, and Georgia make it a penal offense willfully to prevent discharged employees from obtaining new situations. The Florida and Georgia laws apply only to corporations. The Virginia law provides a penalty for any "corporation, manufacturer, or manufacturing company" using the blacklist. The laws of all the other States mentioned apply to all classes of employers. In Illinois and Minnesota it is the conspiracy or combination of two or more persons to use the blacklist that is declared unlawful. Indiana, Montana, and Georgia have also required by statute the employer to furnish the employee with a written statement of the cause of his discharge, although this feature of the Georgia law has been declared unconstitutional. The case was one in which a man by the name of Wallace, who was employed July 9, 1892, by the Georgia, Carolina and Northern Railway Company as chief car inspector, brought suit to recover $5,000 damages because he was discharged while performing his duties on August 12, 1892, and on August 18 made a written request for a specific statement in writing of the reasons, which request was duly delivered to the local agent of the company, and brought no reply within the next 20 days. The suit was dismissed by the city court of Atlanta, and the judgment affirmed by the Georgia supreme court, June, 1894, which declared the act unconstitutional. The argument of the decision was as follows:

"The public, whether as many or one, whether as a multitude or a sovereignty, has no interest to be protected or promoted by a correspondence between discharged agents or employees and their late employers, designed not for public but for private information, as to the reasons for discharges and as to the import and authorship of all complaints or communications which produced or suggested them. A statute which undertakes to make it the duty of incorporated railroad, express, and telegraph companies to engage in correspondence of this sort with their discharged agents and employees, and which subjects them in each case to a heavy forfeiture under the name of damages for failing or refusing to do so, is violative of the general private right of silence enjoyed in this State by all persons, natural or artificial, from time immemorial, and is utterly void and of no effect. Liberty of speech and of writing is secured by the Constitution, and incident thereto is the correlative liberty of silence, not less important nor less sacred. Statements or communications, oral or written, wanted for private information can not be coerced by mere legislative mandate at the will of one of the parties and against the will of the other. Compulsory private discovery, even from corporations, enforced not by suit or action but by statutory terror, is not allowable where rights are under the guardianship of due process of law.

'It follows from the foregoing that the act of October 21, 1891, entitled 'An act to require certain corporations to give their discharged employees or agents the causes of their removal or discharge when discharged or removed,' is unconstitutional, and that an action founded thereon for the recovery of $5,000 as penalty or arbitrary damages, fixed by the statute for noncompliance with its mandates, can not be supported."

In Iowa, Missouri, Montana, Georgia, and California blacklists are especially prohibited eo nomine.

The language of the constitutional enactment, in article 16, section 4, in the constitution of Utah, adopted November 5, 1895, is as follows: "The exchange of blacklists by railroad companies or other corporations, associations, or persons, is prohibited."

The constitution of North Dakota (sec. 23, Art. I) declares: "Every citizen of this State shall be free to obtain employment wherever possible, and any person, corporation, or agent thereof maliciously interfering or hindering in any way any citizen from obtaining or enjoying employment already obtained from any other corporation or person shall be deemed guilty of a misdemeanor;" and section 212 of article 17 of the constitution of North Dakota reads: "The exchange of blacklists between corporations shall be prohibited.'

The constitution of Utah, in section 19 of article 12, in addition to article 16, section 4, already quoted, contains also a general guaranty of freedom to obtain

1 Alabama, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Minnesota, Missouri, Montana, Nevada, North Dakota, Utah, Virginia, Wisconsin, Washington, and Oklahoma.

The main provisions of these laws will be found quoted in an article by Mr. S. D. Fessenden in the U. S. Labor Bulletin, January, 1900, pp. 7-18.

* See Southeastern Reporter, vol. 22, p. 579; also, U. S. Bulletin of Labor, Vol. I, p. 203.

employment similar to that of section 23, Article I, of the constitution of North Dakota.

The laws of the United States relating to blacklisting are contained in a single Federal statute enacted by Congress, being part of the general arbitration act, chapter 370 of the acts of 1897-98, and referring only to certain employers. Sections 1 and 10 of the act referred to cover the subject in question, and read as follows:

"SECTION 1. 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 4612, 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 in 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, 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.

* *

*

"SEC. 10. Any employer subject to the provisions of this act, and any officer, agent, or receiver of such employer * * who shall, after having discharged an employee, attempt or conspire to prevent such employee from obtaining employment, or who shall, after the quitting of an employee, attempt or conspire to prevent such employee from obtaining employment, is hereby declared to be guilty of a misdemeanor, and upon conviction thereof in any court of the United States of competent jurisdiction in the district in which such offense was committed shall be punished for each offense by a fine of not less than one hundred dollars and not more than one thousand dollars."

This legislation has been effective in preventing a recurrence of some of the worst abuses of blacklisting as it formerly existed; and it is the opinion of most of the witnesses, both those representing the railroad corporations and those representing organizations of railroad employees, which have appeared before the Industrial Commission, that this legislation is sufficient-at least if it is made general-to check open blacklisting; but the grand chiefs of the leading railway orders, in replying to the schedule of inquiries concerning railway labor, asked that the national arbitration law of June 1, 1898, be strengthened and reenforced, and that the penalties for blacklisting be made sufficiently strong to entirely stop the secret practice by making the fear of the penalty outweigh the desire to violate the law. The real difficulty which it is sought to remedy by legislation reaches down to the roots of the conflict between labor and capital, employer and employee, which has always been an unequal struggle whenever the question of protecting the acknowledged rights of both parties was concerned. In railroad employment, for example, a man upon leaving his work, on account of discharge for cause, or where the road no longer needs his services, cr because he desires voluntarily to quit his work-in all such cases it is customary for the employee to ask for a clearance paper on which is certified the length of time he has been in the employ of the corporation, the kind of work that he has done, and the reasons for quitting the service. Upon seeking reemployment he is asked to deposit this clearance paper with his application blank, and usually he can not get employment without first securing the clearance from the last road on which he was employed. If the reason why he left his last employer was that he struck to protect what may have been an essential right, the mere record of that fact, or the date of the clearance paper if it was at the time of a general strike, may be sufficient to close to him forever the doors of his chosen occupation. This can take place so long as the custom of the clearance paper prevails, without the railroad corporation committing any offense whatever under the most severe law to prevent blacklisting. The clearance paper, furthermore, is a necessity for the protection of the public, because it has always been the custom of railroad companies, and one which the public and the most intelligent employees will probably justify, to warn each other against incompetent men who might otherwise be placed in responsible positions, endangering the lives of many persons. In order,

therefore, to inake the situation of the discharged employee equal with respect to rights with the corporation, it would be necessary to enable the applicant for work to ask of the corporation a clearance paper from the rank and file of its employees, at least in the department of service to which he sought admission, stating that the corporation had treated its men fairly and wisely. Of course such a requirement would be absurd in practice. A corporation employing a new hand must know something of his previous record. Even, therefore, if the clearance paper was done away with, it would be necessary to inquire where the man had worked; and if he gave the name of the corporation whose employment he had quit while on a strike, subsequent inquiry of that corporation would probably lessen his chances of securing new employment. The difficulty, therefore, is a very real one to the workingman, and one which can not be met readily in all fairness to the interests of both corporations and employees without many miscarriages of justice, even where the intention to do so is present.

In view of the Federal law prohibiting blacklisting, it may seem to have been almost an impertinence in the circulars of inquiry sent out by the expert agent of the Industrial Commission to railroad corporations to have asked the question, "Do you have a black list for employees discharged for serious offenses?" The answers to this question, received from 40 railroads operating 112,353 miles of line and employing a total of 633,023 men, were, of course, all in the negative. The Atchison, Topeka and Santa Fe Railway System called attention to the fact that the Brown' system of discipline is used on its system, under which a record of the performance of every man is kept, which is open to inspection to those entitled to see it. This would probably apply to a large number of roads where the Brown system of discipline is used. The Chicago, Burlington and Quincy Railroad stated that it had no black lists and did not receive or promulgate them. The practice of the Illinois Central Railroad Company is probably typical of general conditions. In the transportation, machinery, and road departments that company keeps no black list, but a record of men who have been discharged from the service of the company for the guidance of its employing officers, so that persons who have been found unworthy or undesirable will not be permitted to reenter the service of the company. The International and Great Northern Railroad also keeps a record of all employees for its own information and protection, and if any responsible railroad official writes to the company asking for the record of an employee who has left its service, and who has made application to him for employment, the record of the party while in the company's service, whether the party inquired about was discharged or left the service of his own accord, is given. No influence, however, in any way, shape, or form, is used to prevent such person who has been in the service of the company from obtaining employment from any other company, and any employee who thinks he has been unjustly discharged has the privilege of asking for an investigation, which is granted him, and if he can show that he has been unjustly dealt with he is reinstated. The Missouri Pacific Railway also keeps a record of employees discharged for serious offenses, in order that they may not be reemployed by other officers of the company not acquainted with the faults of the party discharged at some future time, and in order that the company and its patrons may not be subjected to accidents, loss, or damage by the careless acts of incompetent employees. The Northern Pacific Railway Company, on which the Brown system of discipline is in use, has on the basis of this system a record which will show whether an employee has been dismissed from its service for incompetency, extreme carelessness, or other well-established reasons, and will thus prevent him from being reemployed in the same capacity on some other section of the line. So far as the qualifications, as shown by this record, permit, the company is prepared to reemploy one who has been in its service or recommend him for employment upon other lines. The Southern Pacific Company has no black list, but for its own information and protection informs its officers of the names of those retired for serious offenses. The New York, New Haven and Hartford Railroad Company has a similar rule. and notices of discharges are sent to the officers of that company only.

From these statements the general practice of the railroads of the country will be readily understood.

The attitude of the courts in interpreting both the common law which might apply to cases of blacklisting and such statutory legislation as now exists may be clearly seen by a few of the cases that have come before our various courts. The first case in which an award of damages was made and paid is probably that of Willett v. Jacksonville, St. Johns and Indian River Railroad Company, in which the United States circuit court for the southern district of Florida on January 21,

1 See p. 797ff for further discussion of the Brown system of discipline.