(The letter and memorandum referred to are here printed in full, as follows:) VIEWS OF PROF. JOHN R. COMMONS, OF THE UNIVERSITY OF Hon. FRANCIS G. NEWLANDS, THE UNIVERSITY OF WISCONSIN, Chairman Interstate Commerce Committee, Washington, D. C. DEAR SIR: Since your joint committee was not able to get around to my testimony on railway labor disputes, in December, I am submitting memorandum of points I had prepared after receiving your invitation, and should be pleased to have you lay the same before your committee which is now considering amendments to the Newlands Act. The memorandum is accompanied by a rough draft of proposed amendments. Identical letter is forwarded to Hon. William C. Adamson. Respectfully, JOHN R. COMMONS. MEMORANDUM FOR AMENDMENTS TO FEDERAL MEDIATION, CONCILIATION, AND ARBITRATION LAW. I. Instead of resorting to new and radical or reactionary principles, such as compulsory arbitration or compulsory postponement of strikes, investigate the reasons why the present law has broken down and then amend the law at those points, but retain its fundamental principle. II. Principles of the present Newlands Act and of all State legislation (except that of Colorado): 1. Conciliation and mediation. 2. Voluntary agreement. 3. Investigation and voluntary arbitration. 4. Public interest safeguarded without depriving labor of the only weapon that has secured improvement in conditions. III. Present law has broken down partly because it has two provisions inconsistent with the principle of voluntary agreement. These are: 1. Court review and court enforcement of award of arbitration board. 2. Reconvening the board of arbitration to interpret its award and thereby help the court in enforcing it. These inconsistent provisions should be repealed as follows: (1) Stipulations 11 and 12 of section 3. (2) Parts of sections 6, 7, and 8, relating to court procedure and reconvening the board of arbitration. IV. Substitute for above provisions: 1. A permanent joint national board of adjustment selected in equal numbers by the railway brotherhoods and the railway companies (say four on each side) to interpret all awards and to decide. all disputes. (Provision for subordinate boards on railway divisions and individual railways, with appeal to the national board, if necessary.) 2. In case of disagreement on any point the board of adjustment to select an umpire, or, in case they can not agree on an umpire, a district court to appoint an umpire. The umpire not to be permanent, but to be appointed anew on occasion of each disagreement. (Agreement of both sides to notify a district court which shall appoint this umpire and to abide by the umpire's decision should be made one of the stipulations in section 3 of the act.) V. Reasons for substituting a permanent joint board of adjustment and occasional umpire in place of court review and court enforcement. 1. A similar board has existed for 14 years in the anthracite coal industry and has worked successfully. The plan is well known in other industries and is a recognized method of handling disputes. 2. A court of law can not or will not enforce a collective bargain. This has been held even in Canada. A collective bargain is different from a legal contract, and the existing law is inconsistent with its own principles when it attempts to secure enforcement through courts. 3. Neither can a court successfully interpret and review a collective bargain, mainly on account of the long delay and technical procedure. 4. Neither can a board of arbitration interpret its own award when it is reconvened. This has been proven by experience under the present law. 5. It is the failure of these inconsistent provisions in the present law which justifies the brotherhoods in refusing arbitration. 6. But a joint board selected voluntarily by each side, with an occasional umpire, has following advantages: (1) It is always in session. (2) It is composed of men who know the technical problems and the collateral effects of awards and interpretations. (3) The knowledge that they must refer to an umpire in case of disagreement tends to prevent deadlocks, rather than have their business confused by an outside ignorant party, however fair minded he may be. (4) With such a joint board in existence it may be expected that it will settle most disputes which in the past have been submitted to outside boards of arbitration. This has been the experience in the anthracite industry. VI. Retain something like the present Federal Board of Mediation and Conciliation, but make its business solely that of confidential adviser and mediator to bring together both sides in case the joint board of adjustment and umpire threaten to break down, but especially to deal with disputes of other employees not included in the brotherhoods. (This board might be reduced to one member with power to call in temporary mediators if necessary.) VII. Retain present provisions for temporary boards of arbitration, to be resorted to only in case the joint board and umpire break down. VIII. Create a division of railroad labor statistics in the Interstate Commerce Commission, composed of one statistician appointed by the commission and two advisory statisticians, nominated one by the railway companies and one by the brotherhoods, for the following purposes: 1. To assemble and maintain up to date all facts which either side considers will be needed in future disputes. 2. To secure agreement in advance by both sides as far as possible on the facts. 3. To assist boards of mediation, arbitration, or investigation under the act and give information to Congress and the public. 4. To advise boards of arbitration or investigation as to procedure, codes, standards, pitfalls, etc., of preceding boards. (This division should be merely statistical, and the Interstate Commerce Commission should have no power whatever to fix wages. Other departments of Government should be required also to aid the statistician when called upon within the scope of their official duties. The statistical division would avail itself of the present powers of the Interstate Commerce Commission to get reports from the railways.) IX. Reasons for a division of railroad labor statistics: 1. At present boards of arbitration waste much time in disputes over facts, and are then so confused by the mass of figures that they tend to decide disputes regardless of all the facts. 2. This proposed division of railroad labor statistics is practically identical with the statistical staff that each arbitration board sets up after it assembles. It is proposed only to make the staff permanent instead of occasional. 3. The proposed division is also practically identical with the statistical staff which the present Goethals commission has created for the purposes of the eight-hour law. The proposal would practically make this statistical staff a division of the Interstate Commerce Commission after the Goethals commission disbands. 4. This statistical division would be looked to by the public for complete and accurate statement of facts in case of threatened strikes, and the present practice of each side in giving out misleading statements to influence public opinion would be stopped. X. Authorize the President when, in his judgment, a threatened strike is a public menace to appoint a President's board of investigation without waiting for the consent of both sides. Give this board same powers as present boards of arbitration in so far as getting evidence is concerned, but authorize it only to make a report and recommendations, and do not provide penalties or injunctions against a strike and do not authorize enforcement of recommendations by penalties or injunctions. Retain present provisions of the law against compulsory personal service. Board dissolves on submitting its recommendations. Provide that the joint board of adjustment (and the umpire, if needed) shall carry out and interpret the recommendations of the President's board of investigation. (The present boards of arbitration under the Newlands Act have powers to take testimony and get evidence, but this power exists only if both sides agree to the creation of such a board. The proposed President's board would be created and would have this power of taking testimony even if one or both sides refused to give consent. In this respect the proposition goes beyond the powers granted under the present law.) XI. Reasons for a President's board of investigation and against compulsory prohibition of strikes (or lockouts): 1. Similar laws already exist in some 20 American States where a State board has power to take testimony without waiting for consent of both sides, but not power to enforce an award nor to prohibit strikes or lockouts pending investigation. Hence this is not a new principle so far as State legislation is concerned and is not incon sistent with voluntary arbitration. The board would be somewhat similar to the one appointed by the President at the time of the anthracite coal strike of 1902 and similar to the present Goethals commission under the eight-hour law. 2. Compulsory prohibition of strikes either can not be enforced or will not be enforced by public officials, because they will shrink from imposing wholesale penalties and imprisonment. A Canadian minister of labor has publicly stated that they do not prosecute for violations. 3. To try to take away from labor the right to strike or to threaten to strike will make the election of President and Congressmen turn on the effort to get the labor vote and will tend to drive labor and capital more actively into politics. The enforcement of penalties will be likely to depend on campaigns and elections. 4. By perfecting the present system at the points where it is inconsistent or incomplete the law will be just as likely to avoid strikes as will the threat of fines and imprisonment. 5. The President's board of investigation is proposed only as an emergency measure and a last resort, and would be used only when one side or the other had refused all the other steps-namely, appointment of the joint board of adjustment, appointment of umpire, appointment of board of arbitration-and had determined to "put it up" to the President. The President's board of investigation would then give the leaders of that side a place to "get off" without yielding to the other side and give the President a place to "get off" without deciding in favor of either side. It is submitted that the advantage of providing such a place will be recognized by those who are familiar with the facts and motives. ROUGH DRAFT OF PROPOSED AMENDMENTS. Section 4. Strike out the following: "Eleventh. Shall provide that the award and the papers and proceedings, including the testimony relating thereto, certified under the hands of the arbitrators, and which shall have the force and effect of a bill of exceptions, shall be filed in the clerk's office of the district court of the United States for the district wherein the controversy arises or the arbitration is entered into, and shall be final and conclusive upon the parties to the agreement unless set aside for error of law apparent on the record. "Twelfth. May also provide that any difference arising as to the meaning or the application of the provisions of an award made by a board of arbitration shall be referred back to the same board or to a subcommittee of such board for a ruling, which ruling shall have the same force and effect as the original award; and if any member of the original board is unable or unwilling to serve, another arbitrator shall be named in the same manner as such original member was named." and substitute: Eleventh. Shall provide that any difference arising as to the meaning or the application of the provisions of an award made by a board of arbitration shall be referred for interpretation and enforcement to a board of adjustment, composed of an equal number of representatives selected, respectively, by the employees and the em ployers; and that if said board of adjustment disagrees on any interpretation the same shall be referred for final decision, within 30 days therefrom, to an umpire chosen by said board; and that if said. board disagrees upon the choice of an umpire any district court of the United States shall be notified, within 30 days, of such disagreement; and that if the said board of adjustment disagrees on the selection of a district court then the district court of the district shall be so notified; thereupon such district court shall appoint the umpire, who shall decide, within 30 days, such disputed interpretation or application of the award; that the compensation and expenses of said umpire shall be paid by the parties to the agreement; and, further, that the decisions of such umpire shall be final and conclusive upon the parties to the agreement." (Other time limits. should probably be inserted.) Section 6. Strike out: "before a notary public or a clerk of the district or the circuit court of appeals of the United States, or * "If the parties to an arbitration desire the reconvening of a board to pass upon any controversy arising over the meaning or application of an award, they shall jointly so notify the Board of Mediation and Conciliation, and shall state in such written notice the question or questions to be submitted to such reconvened board. The Board of Mediation and Conciliation shall thereupon promptly communicate with the members of the board of arbitration, or a subcommittee of such board appointed for such purpose pursuant to the provisions of the agreement of arbitration, and arrange for the reconvening of said board or subcommittee, and shall notify the respective parties to the controversy of the time and place at which the board will meet for hearings upon the matters in controversy to be submitted to it." Section 7, strike out: 66 and a transcript of the testimony taken at the hearings, certified under the hands of the arbitrators, to the clerk of the district court of the United States for the district wherein the controversy arose or the arbitration is entered into, to be filed in said clerk's office as provided in paragraph 11 of section 4 of this act. And said board. shall also furnish a certified copy of its award and the papers and proceedings, including the testimony relating thereto. Section 8, strike out: * * "That the award, being filed in the clerk's office of a district court of the United States as hereinbefore provided, shall go into practical operation, and judgment shall be entered thereon accordingly at the expiration of 10 days from such 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 district court or on appeal therefrom. At the expiration of 10 days from the decision of the district court upon exceptions taken to said award as aforesaid, judgment shall be entered in accordance with said decision unless during said 10 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. |
