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58 t h C o n g r e s s , (H O U SE OF REPRESENTATIVES. rDoc. No. 386,

3d Session.

Part 5.

DEPARTMENT OF COMMERCE AND LABOR.

BULLETIN
OF THE

BUREAU OF LABOR.

No. 60—SEPTEMBER, 1905.
ISSUED EVERY OTHER MONTH.

W A SH IN G TO N :
GOVERNMENT PRINTING OFFICE.

1905.

EDITOR,

CHAS. P. NEILL,
COM M ISSIONER.

ASSOCIATE EDITORS,

G. W. W. HANGER,
CHAS. H. VERRILL, G. A. WEBER.
II

CONTENTS.
Page.

Government industrial arbitration, by Leonard W . Hatch, A . M ........... .
The eight-hour law and enforced labor contracts in the Panama Canal
Z o n e ______ ___________
Digest of recent reports o f State bureaus of labor statistics:
Massachusetts____ ____
Michigan________________________________________________
Minnesota__________________
M ontana....................
New Jersey..................
Digest of recent foreign statistical publications _________i _______________
Decisions of courts affecting labor..................
Laws o f various States relating to labor enacted since January 1, 1904. __

389-655
656-66.2
663-665
665-667
667-670
670,671
671-675
676-691
692-711
712-720

B U L L E T IN
OF TH E

BUREAU
No. 60.

OF L A B O R .

W ASH IN G TO N .

S eptem ber,

1905.

GOVERNMENT INDUSTRIAL ARBITRATION.
B Y LEONARD W . H A T C H , A . M .

IN TRO D U CTIO N .
Briefly characterized this paper is a statistical account o f laws and
their results. Within its scope are included all laws in any land
which have been enacted for the purpose o f providing means for the
settlement o f collective industrial disputes. The aim has been to
present as fully and accurately as possible both the essential features
o f such laws and the important facts as to their operation. The
record has been brought as closely down to date (1905) as the neces
sary reports and documents available would permit, and so far as
possible only official sources have been used. A ll the sources used
will be found referred to either in the text or in footnotes.
G R E A T B R IT A IN .
One characteristic feature of collective industrial disputes being
combined action by employees to better the conditions of labor, there
was naturally no legislation in Great Britain for arbitration or con
ciliation in such cases until the repeal of the combination laws,
which prohibited under severe penalties all combinations of workmen,
in 1824 permitted concerted action on the part of employees. Coinci
dent with that repeal (a) an arbitration act was passed, since known as
the Consolidation A ct.(6) That law, though in force until 1896, did
not contemplate collective disputes, however, and belongs with the
« 5 Geo. IV, ch. 95.

&5 Geo. IV, ch. 96.
389

390

BULLETIN OF THE BUREAU OF LABOR.

earlier regime o f State regulation of the labor contract and suppres
sion o f combination, rather than with the modern system o f free con
tract and combination. A glance at earlier legislation will make
this clear.
Prior to 1824 a long series o f laws, going back as far as the
Statute o f Apprentices in 1562, (°) had contained provisions for the
settlement o f individual disputes between masters and servants.
Prior to 1747 these provisions appear in acts containing various other
labor regulations, but in that year a special law, ( &) dealing solely
with the settlement o f disputes, appears. This law, like all the
earlier provisions, simply referred disputes to the justices of the
peace or local magistrates, in harmony with the existing method o f
State regulation, which, as embodied in the Statute o f Apprentices,
had designated those same officials as the authorities to fix the rates
o f wages for labor generally.
After 1747 the next special act dealing with disputes was passed in
1800. The cotton industry, rapidly growing under the transforming
influence o f the industrial revolution,was the field upon which the strug
gle between the old system of State regulation and the new principle
o f free competition in determining the conditions of labor was fought
out in the closing years of the eighteenth and the opening years o f
the nineteenth centuries. The outward manifestation of this strife
appeared in a multiplication of disputes between masters and
weavers, which inspired four laws providing for their settlement.
These applied only to the cotton trade, the first being passed in 1800
for England, ( c) the second for Scotland in 1803, (d) the third in 1804
replacing the former act for England, (e) while the fourth for Ire
land was passed in 1813. (?) These last three laws were practically
identical. They differed from earlier laws for the settlement o f dis
putes chiefly in providing for arbitration by two referees appointed,
one by the employer and the other by the employee, from nominations
made by a justice of the peace, with reference for final decision
to the justice only when those two could not agree. In common with
the earlier statutes, they made reference of disputes compulsory upon
the complaint o f either party, and decisions were likewise compulsory,
being enforceable by proceedings o f distress and sale, or imprison
ment, before a justice of the peace.
THE CONSOLIDATION ACT, 1824.

When the select committee o f the House o f Commons in 1824
reported in favor of the repeal o f the combination laws, it also
reported that “ the practice of settling disputes by arbitration beg5

Eliz., ch. 4.
&20 Geo. II, ch. 19.
* 39-40 Geo. I l l, ch. 90.

<*43 Geo. I l l, ch. 151.
*44 Geo. I l l, ch. 87.
/ 53 Geo. I l l, ch. 75.

GOVERNMENT INDUSTRIAL ARBITRATION.

391

tween masters and workmen has been attended with good effects, and
it is desirable that the laws which direct and regulate arbitration
should be consolidated, amended, and made applicable to all trades.”
Accordingly, the Consolidation Act was passed, which was nothing
more nor less than a consolidation—hence, its name—o f the three
existing laws for the cotton industry, and simply extended the sys
tem there provided to all trades. Like those acts, it was drawn for
disputes between employers and individual workmen only, but in
one respect its jurisdiction in such cases was narrower than theirs.
Under the system of regulation of wages by justices o f the peace,
there was no occasion in the arbitration acts to draw a distinction
between disputes over existing contracts and those as to future con
tracts. But the principle o f freedom o f contract as to the terms o f
employment having been established by the repeal o f the Statute
o f Apprentices in 1814, a clause was inserted in the Consolidation Act
prohibiting any justice o f the peace in rendering awards to “ establish
a rate o f wages or price o f labor or workmanship at which the work
men shall in future be paid, unless with the mutual consent o f both
master and workmen.”
The Consolidation Act of 1824 remained in force until 1896. It was
slightly amended in some details in 1837 by 1 Viet., ch. 67, and in
1845 by 8-9 Viet., chs. 77 and 128, but it was practically a dead letter
from its passage.
LORD ST. LEONARD’ S ACT, 1867.

In 1867 a law was passed which enabled private councils o f con
ciliation or arbitration, established voluntarily by employers and
workmen, to exercise the powers which had been conferred upon
referees under the Consolidation Act and earlier laws. It embodied
the recommendations o f a select committee o f the House of Commons
appointed in 1856 to 66inquire into the expediency o f establishing
equitable tribunals for the amicable adjustment of differences be
tween masters and operatives.” The mover o f the committee stated
that he made his motion on account o f the “ great inconvenience from
the want o f equitable tribunals by means o f which any difference
between masters and operatives might be satisfactorily adjusted,”
and also in order “ to ascertain whether the conseils des prud’hommes
in France had answered the purpose for which they were established.”
He asserted also that “ great dissatisfaction existed at that time among
operatives o f this country in consequence o f the want o f some such
tribunal.” (a)
The report o f this committee was presented in the same year. ( b)
It stated that a considerable majority o f the large number o f wit-*
o Hansard’s Debates, 3d series, Vol. CXL, pp. 982, 983.
* Parliamentary Papers, 1856, Vol. X III.

392

BULLETIN OF THE BUREAU OF LABOR.

nesses examined concurred in favoring boards o f arbitration. As to
the constitution o f such boards, however, and still more as to what
their jurisdiction should be, they found much difference o f opinion.
It was pointed out that the Consolidation Act o f 1824 had been almost
entirely inoperative mainly because it required parties to go before
a magistrate, by whom the arbitrators were to be appointed, and
this the workmen were very unwilling to do, either because it bore
the appearance o f a criminal proceeding or because the magistrates
in industrial centers, as a rule, belonged to the manufacturing
class. Other objection was found to that law on the ground that, as
the arbitrators were to be appointed as each dispute arose, one must
practically refer his case to an unknown set o f men. Finally, the
committee noted that several attempts had been made to establish sys
tems o f arbitration without the intervention o f law and that these had
been successful while they lasted, but had generally been o f short
duration. In view o f these facts the committee favored councils
voluntarily established by employers and workmen and recom
mended, in order to give such councils permanence and legal standing,
that provision be made for granting them a Government license, undei
which they could exercise the powers specified in the law o f 1824 for
compelling the attendance of witnesses and enforcing awards. Com
pulsory awards, however, the committee thought should be confined
to disputes under existing contracts, and they opposed granting any
power to regulate wages forcibly, though expressing the opinion
that disputes over future wage rates would be frequently referred to
the proposed courts by mutual agreement of the parties.
A bill embodying these ideas was introduced by the committee’s
chairman (a) in 1859, but too late for passage at that session. Seven
years later, in 1866, the same measure was again introduced and
passed the Commons, but died in the House o f Lords. Finally, in
1867, it was again brought forward and became the Councils of Con
ciliation Act o f August 15, 1867, ( 6) often called Lord St. Leonard’s
Act, after the author o f the bill o f 1867.
The general content of this act has already been indicated. It
laid down a number of detailed requirements as to constitution and
procedure which must be fulfilled by private councils in order to
secure the license permitting them to compel the attendance of
witnesses and enforce awards as in the law of 1824. These were
patterned after the French system o f industrial courts in the councils
o f prudhommes, the more important ones being as follows: Coun
cils must consist of not less than two nor more than ten each o f mas
ters and o f workmen, with a chairman chosen by the members, but
who must be 64some person unconnected with trade.” Members must
be elected for terms o f one year, the employers and employees elect«M r. W. A. Mackinnon.

*30-31 Viet., ch. 105.

GOVERNMENT INDUSTRIAL ARBITRATION.

893

ing their respective members in separate assemblies. A register of
electors must be kept by the clerk of each council, upon which every
person properly qualified must, upon application, be registered. The
qualifications for registration, necessary both for voters and members
o f the council, were an age o f 21 years, and, if an employer, six
months’ residence and occupation in the district for which the council
was established; i f an employee, seven years’ residence and occupation,
in the trade over which the council was to have jurisdiction, these
qualifications being specified as rendering eligible any “ inhabitant
householder or part occupier of a house, warehouse, counting-house, or
other property.” These same qualifications, except the age require
ment, were specified also for those who might petition for a council,
the petitioners for any council electing the first members. Councils
were to elect such oflicers as were necessary and to establish rules and
fees, which were to be binding when approved by the home secretary.
Each council was to appoint a “ committee o f conciliation,” com
posed o f one employer and one workman, and all cases were to go first
to this committee, who should endeavor to “ reconcile the parties in
difference.” (°) I f their efforts failed, the case was to go to the
council for hearing and award. In hearings by the council two
members and the chairman were to be a quorum, and no attorneys
were to be heard except by consent o f both parties. Awards were to
be enforced as provided in the Consolidation Act of 1824; that is, by
proceedings of distress and sale, or imprisonment, before a justice o f
the peace.
The exact character of the law o f 1867 is apparent only when its
jurisdiction is noted. In the first place, it applied to disputes involv
ing either one or many workmen; but in the second place, councils
could take cognizance of disputes only when submitted by both
parties. When the bill was before the House o f Commons it was
proposed to amend it so that cases might be acted on by the concilia
tion committee upon application of one party alone, but this amend
ment did not meet with approval and was withdrawn. In the third
place, while no limitation as to subjects o f disputes appears, councils
could not “ establish a rate o f wages or price o f labor or workmanship
at which the workman shall in future be paid.” ( &) Obviously, under
this last restriction, so far as arbitration as distinguished from con
ciliation was concerned, the councils could have but small jurisdiction
in collective disputes, inasmuch as the great majority o f such are con
cerned directly or indirectly with questions o f future wages. As
originally introduced the act had contained a provision enabling coun
cils, with the consent of both parties, to fix rates of wages that should
®This committee of conciliation was the only feature o f importance which was
not in the Mackinnon bill o f 1859.
®Sec. 4 o f the law.

394

BULLETIN OF THE BUREAU OF LABOR.

be binding for a period not exceeding twelve months. The author
explained that this had not been in the original draft, but that both #
the masters and men whom he had consulted wished future wages to
be within the power o f the councils. He had himself objected at first,
but upon reflection had concluded that binding force limited to a year
might be granted, and so had added the clause; but in committee in
the House o f Lords this power was stricken out by the overwhelming
vote o f 9 to 1, the author alone voting for it.
Lord St. Leonard’s Act remained on the statute books until 1896,
but was never anything but a dead letter, and no application for a
license under it was ever made. This complete failure is somewhat
surprising in view o f two facts, the one that the measure had been
widely approved by workmen and employers, and the other that
voluntary joint boards were already coming into existence at the time
the law was passed. Thus, when the bill for the act was introduced
in Parliament its author stated that the principle o f the bill had
received the approval o f a deputation o f operatives representing
100,000 men engaged in the building trades o f the metropolis, who
had an interview with him a short time before, (®) and on the second
reading petitions in favor o f it were presented, “ signed by masters
in the building trade and every description o f labor in that trade,
from Birmingham, Manchester, Stockport, Blapkburn, Coventry, and
other large manufacturing towns.” ( 5) As already noted, the Com
mittee o f the House o f Commons which recommended the law had
found in ,1856 that private boards were being established. Sidney
and Beatrice Webb, in their History o f Trade Unionism,(c) date the
period o f development o f voluntary boards from the year 1867.
Why, then, did the act fail? The only definite answer which has
been offered is to be found in parliamentary debates upon later acts
and in the evidence collected by the Royal Commission on Labor of
1893, which is to the effect that the act was too inelastic, laying
down too many hard and fast rules as to the constitution and proce
dure o f the councils, so that no latitude was left to employers and
workmen who might desire to form them. Such, for example, was
the opinion expressed in Parliament in 1872 by the author of another
measure upon the same subject, (d) and by the president o f the Lon
don conciliation board before the Royal Commission on Labor in
1893.(c)*6
o Hansard’s Debates, 3d series, Vol. C LXXXV, p. 80.
6 Ibid., p. 696.
o P.322.
d Hansard’s Debates, 3d series, Vol. CCXII, p. 1604.
c Report o f the commission, vol. 39, p. 336. The London conciliation board is
maintained by the London Chamber o f Commerce.

GOVERNMENT INDUSTRIAL ARBITRATION,

395

Not the least serious o f the law’s defects would seem to have been
the practical exclusion o f all questions of future wages from arbitra
tion by the licensed councils. As already noted, employers and em
ployees had personally stated to the author o f the act their desire
that such questions should be within the jurisdiction of the councils.
Moreover, such questions were precisely the ones which had called
private boards into existence. Thus the famous board for the Not
tingham hosiery and glove trade, with which the name of Mr. Mundella is associated, was born out of a strike for better wages in 1860,
and the rules o f that board defined its purpose to be “ to arbitrate
on any questions relating to wages that may be referred to it from
time to time by the employers or operatives, and by conciliatory
means to interpose its influence to put an end to any disputes that
may arise.” The license offered by the law of 1867 would have given
private councils most ample powers for the adjudication of disputes
under existing contracts—that is, individual disputes; but for nearly
all disputes as to future terms o f employment— collective disputes—
it would have made them little more than conciliation committees,
for which indeed the detailed requirements o f the law were
superfluous.
THE ARBITRATION (MASTERS AN D W ORKMEN) ACT, 1872.

Five years after Lord St. Leonard’s Act another law was passed,
the Arbitration (Masters and Workmen) Act, 1872. (a) This law
was passed at the instigation o f the Third Trades Union Congress,
held in London in 1871. Resolutions favoring arbitration of indus
trial disputes had been passed at the first two congresses, and at the
third the parliamentary committee was instructed to prepare* a bill
upon the subject. The bill was drafted by Mr. (afterwards Sir)
Rupert Kettle, and approved by the fourth congress. After some
modification through various conferences o f the parliamentary com
mittee with members of Parliament who had consented to support
the bill, with its author and with Mr. Justice R. S. Wright, the bill
was introduced April 17, 1872, by Mr. Mundella.(&) It attracted
little interest in Parliament and was passed without opposition or
amendment, becoming law on August 6,1872.
The important provisions o f this act, so far as collective disputes
are concerned, were as follow s:
(1)
An agreement might be drawn up between individual masters
and workmen, mutually binding upon both when the master gave
« 35-3G Viet., ch. 46.
®These facts as to the framing of this measure are as related by Mr. George
Howell, secretary o f the trades union parliamentary committee at the time, in
his Labor Legislation, Labor Movements and Labor Leaders, London, 1902, pp.
219, 220.

396

BULLETIN OF THE BUBEAU OF LABOB.

and the workman accepted a printed copy o f the same, and binding
during the 64continuance o f any contract of employment and service
which is in force between them at the time of making the agreement,
or in contemplation of which the agreement is made, and thereafter
so long as they mutually consent from time to time to continue to
employ and serve without having rescinded the agreement.” (a) The
agreement might specify what number of days’ notice o f intention
to cease to employ or be employed, not exceeding six, must be given
by the parties to it, and until such time elapsed the agreement was
to be binding. Workmen, however, might announce their withdrawal
from the agreement any time within forty-eight hours after mak
ing it.
(2) The agreement must 44designate some board, council, persons
or person as arbitrators or arbitrator, or define the time and manner
o f appointment o f arbitrators or of an arbitrator; and designate,
by name, or by description of office or otherwise, some person to be,
or some person or persons (other than the arbitrators or arbitrator)
to appoint an umpire in case of disagreement between arbitrators.” ( 6)
(3) The agreement might provide that the parties should be bound
by its rules or those of the arbitrators or umpire in regard to the
44rate o f wages to be paid, or the hours or quantities of work to be
performed, or the conditions or regulations under which work is to
be done, and may specify penalties to be enforced by the arbitrators,
arbitrator, or umpire for the breach of any such rule.” (c)
(4) Power was given to arbitrators under such agreements to com
pel the attendance o f witnesses and the production of books and
papers.
It Ttfill be seen that the principle of this law was to put employers
and workmen under written contract as to the terms of employment,
which contract should bind them to submit disputes to arbitration.
This idea was taken directly from a private arbitration system which
had been in existence for eight years in the building trades o f W ol
verhampton, and o f which Sir Bupert Kettle, who drafted the law,
was the founder. Obviously for the success of this principle employ
ers and workmen must first be brought to make such contracts, and
then, having made them, be held to their fulfillment. But the law
o f 1872 provided nothing either to induce parties to enter into the
proposed contracts or to enforce them when made. It was simply
declared that employers and workmen 44might ” make the contracts
i f they were so disposed, and as for their enforcement, the act
expressly permitted parties to withdraw from them at any time
upon a week’s notice by severing the relation o f employer and em
ployed, and specified no penalty whatever for nonfulfillment o f the
a

Sec. I (3) of the law.

» Sec. I (1) of the law.

Sec. I (4) of the law.

GOVERNMENT INDUSTRIAL ARBITRATION.

397

contract in any other way. The contract itself might lay penalties,
but the law made no attempt to give sanction to them. In fact,
aside from the power to summon witnesses and secure books and docu
ments, it is difficult to see wherein the act opened the way for any
thing which employers and employees might not have done without it.
Like its predecessor o f 1867, the Arbitration Act o f 1872 stood on
the statute books until 1896, but was never put to practical use. As
to why it failed the Royal Commission on Labor could offer no evi
dence except an opinion by the chairman o f the London conciliation
board that its failure to recognize concrete existing bodies or to pro
vide any agency to put it in operation might have had something to
do with it.(a) About all that can be said with certainty is that
employers and employees never chose to make use o f it, a not sur
prising result, however, in face o f the above-noted negative character
o f the law.
THE CONCILIATION ACT, 1896.
HISTORY OE PASSAGE OF ACT.

After the fruitless measure of 1872 no further move to provide by
law for the settlement of industrial disputes was made until 1893.
In that year no less than four bills for arbitration or conciliation
were introduced in Parliament, and the movement thus started was
strong enough to persist through three years of delay and finally to
pass a law.
Two o f the above-mentioned proposals were practically identical,
so that but three different schemes were presented. One of these
was brought forward for the Government by the president o f the
board o f trade. It contained three essential features:
(1) When a dispute should occur or be apprehended, on applica
tion by either party the board of trade might appoint one or more
persons to act as conciliators, who should investigate and endeavor
to bring about a settlement of the case.
(2) Where it should appear to the board of trade that in any
locality where disputes are o f frequent occurrence adequate means
for settling such do not exist, it might appoint one or more persons
to inquire into the circumstances and confer with employers and
workmen with a view to establishing a board o f conciliation or
arbitration, composed o f employers and laborers.
(3) The board o f trade should keep a registry for all boards whose
purpose is the settling o f industrial disputes.
Another o f the bills was presented on behalf o f the London con
ciliation board, and was supported by the London Chamber o f
o Report o f the commission, vol. 39, pp. 338, 341.

398

BULLETIN OF THE BUEEAU OF LABOR.

Commerce and the principal London trades unions. It provided:
(1) For registration o f conciliation and arbitration boards by the
board o f trade, as in the Government bill, and (2) certain powers
were to be granted to registered boards. They might summon and
examine witnesses under oath. Where parties agreed in writing to
submit any dispute arising out o f an agreement enforceable at law
a board’s decision should be final and enforceable as a decision o f
the high court o f justice, except that an award might not fix future
wages. But i f the parties should agree in writing to submit that
question and deposit money forfeits for failure to abide by the
award a compulsory decision as to future wages might be rendered.
Boards were to try conciliation first and then arbitration. I f no
decision should be reached within a given time, an umpire was to
be appointed by them or the board o f trade.
The third measure offered in 1893 was by private parties. It
proposed the establishment by county councils o f boards of concilia
tion and arbitration in every district, composed o f equal numbers
o f employers and laborers and another member belonging to neither
o f those classes, appointed by the county councils. Such boards were
to have power to summon and examine witnesses under oath. They
were to attempt conciliation first, but that failing they were to hold
a hearing for arbitration. They were to report as to the parties
responsible for the dispute and the proper settlement, but their
decision was not to be compulsory.
None o f the bills of 1893 reached a final hearing. A ll three were
reintroduced in 1894, again in 1895, and the Government and London
conciliation board bill for the fourth time in 1896, and in that year
the Government bill was finally passed and became the law o f August
7, known as the Conciliation Act, 1896. But before the Govern
ment measure became law it underwent a number o f alterations which
are worth noting. The bill o f 1894 was identical with that of 1893
except for the addition of a provision that the board of trade might
investigate disputes and try to bring about an amicable settlement
without any application from the parties. But in both 1893 and 1894
considerable criticism was brought against the bill on the ground o f its
inadequacy and that it gave the board o f trade no powers which it did
not already possess. This was admitted by its advocates, though
they urged that the bill gave the board o f trade a locus standi in such
cases not before recognized. The criticism evidently had its effect,
however, for in 1895 the bill was modified, or rather certain features
were added to it, whereby (1) county or borough councils were to
have power to create local boards of conciliation to be constituted as
they saw fit; (2) the board o f trade might grant a guarded power to
local boards to summon and examine witnesses under oath and compel
the production o f papers and accounts; (3) where there was a written

GOVERNMENT INDUSTRIAL ARBITRATION.

399

agreement to submit present or future differences to arbitration,
boards might render compulsory decisions, and if such a case con
cerned future rates of wages, parties should deposit forfeits for breach
o f the award. Manifestly this bill o f 1895 was simply the Government
measure o f 1894, with the addition o f the most distinctive features o f
the other two bills before Parliament and already referred to. It was
certainly not open to the criticism o f previous years, for extensive pow
ers were conferred in it. But when it was again introduced in 1896
several o f these powers had been lopped off, viz, (1) the power o f county
councils to establish courts; (2) authority to render compulsory
decision in any case not concerning “ an agreement enforceable by
la w ;” and (3) authority to fix future wages. And finally the
parliamentary committee o f trade to whom the bill was referred
further amended it so as to drop out everything concerning arbitra
tion except a single provision that when requested so to do by both
parties the board of trade might appoint arbitrators. So that as
finally passed the law contained essentially the same features as the
bill o f 1894. It should be added that it cleared away by repeal the
dead-letter laws o f 1824, 1867, and 1872.
Now the Conciliation Act o f 1896 and the action o f Parliament in
finally refusing to enlarge the powers contained in it are in strict
accord with the recommendations of the royal commission on labor
whose final report was made in 1894. As setting forth the motives
for the act o f 1896, therefore, it will be worth while to quote the
commission’s conclusions upon the subject o f Government action for
the settlement o f collective disputes. The significant portions o f the
recommendations of the majority (°) report of the commission were
as follows:
In the case o f the larger and more serious disputes arising with
regard to the terms of future agreements, frequently between large
bodies o f workmen on one side and employers on the other, we have
had to consider, in the first place, suggestions for the compulsory
reference o f such disputes to State or other boards o f arbitration
whose awards should be legally enforceable. No such proposal, how
ever, appeared to us to be definite or practical enough to bear serious
consideration.
®This portion o f the report was signed by the Duke o f Devonshire, who was
chairman, David Dale, Sir Michael E. Hicks-Beach, A. J. Mundella, Leonard
H. Courtney, Jesse Codings, Sir Frederick Pollock, Sir E. J. Harland, Sir W.
Thomas Lewis, Alfred Marshall, G. W. Balfour, Thos. Burt, J. C. Bolton, Alfred
Hewlett, Thos. H. Ismay, George Livesey, Samuel Plimsoll, Edward Trow, and
William Tunstill. The four labor members o f the commission, William Abra
ham, Michael Austin, James Mawdsley, and Tom Mann, in their minority report
had only the following to recommend: “ The only legislation relating to this sub
ject that appears to be required is the grant o f adequate power to the labor de
partment to obtain the fullest possible information about the facts o f every dis
pute, the actual net wages earned, the cost o f living, the price o f the product, the

400

BULLETIN OF THE BUREAU OF LABOR.

We have, in the next place, discussed a proposal to establish by act
o f Parliament district boards o f conciliation and arbitration, the
chief object o f which would be to bring about the settlement o f ques
tions relating to future agreements. These boards might, it was sug
gested, be established either by a Government department or, as some
think would be a better plan, by town and county councils, subject,
perhaps, in that case, to confirmation by some central authority.
They would have statutory powers o f intervening in trade disputes
in the interest o f the public, as well as that o f the parties, o f holding
inquiries and using necessary means o f procuring information, and,
in cases where their intervention should fail to avert a conflict, would
publish reports which would serve to guide public opinion as to the
merits o f the contest. It was represented that such boards need not
displace existing or future voluntary boards o f conciliation, but would
fill up the void space not covered by those voluntary boards, and
would be especially useful in the case o f small trades or unorganized
workmen.
On the other hand, we have had to consider that such boards, by
whatever public authority they were established, would have an offi
cial character, and might, for that reason, be less popular and less
resorted to than the present voluntary institutions; yet at the same
time their presence might have the bad effect o f arresting the growth
o f these institutions. Even if they did not injuriously interfere with
the further development of boards o f conciliation in large and wellorganized trades, they would probably displace, or at least check,
the extension o f the district boards which are not limited to particu
lar industries.
We are o f opinion that no central department has the local knowl
edge which would enable it to attempt with success the creation of
such institutions, and that the intervention o f local public authorities
can not be usefully extended at present beyond the experimental
action suggested with regard to industrial tribunals to decide cases
arising out o f existing agreements.
We hope and believe that the present rapid extension o f volun
tary boards will continue until they cover a much larger part o f the
whole field o f industry than they do at present. This development
seems to us to be at present the chief matter of importance, and it has
the advantage over any systematic establishment o f local boards, of
greater freedom o f experiment and adaptation to special and varying
circumstances. If, at some future time, the success o f these volun
tary boards throughout the country shall have become well assured,
cost o f manufacture, the salaries and interest paid, the employers’ profits, and
any other details that may seem material. W e recommend that the labor
department should be given power to obtain these facts, voluntarily if possible,
but where necessary, by compulsory inspection o f accounts, etc., in order that
the issues between the contending parties may be impartially and accurately
ascertained, and put fairly before the combatants and the public. The great
and increasing part taken by the press and public opinion in large industrial
disputes, even to the extent o f contributing large sums in support of one or
other party, not to mention the occasional intervention o f the Government,
renders the fullest possible investigation by a public department absolutely
necessary in the interests o f justice.” (Final report o f the commission, Part I,
p. 145.)

GOVERNMENT INDUSTRIAL ARBITRATION.

401

and if any success should attend the experiment previously suggested
o f giving to local authorities the power o f initiating the formation
o f industrial tribunals, it may be found expedient to confer larger
powers either upon voluntary boards or upon such industrial tribu
nals. But, at the present stage o f progress, we are o f opinion that it
would do more harm than good either to invest voluntary boards with
legal powers or to establish rivals to them in the shape or other boards
founded on a statutory basis and having a more or less public and
official character.
Although we are unable to agree in supporting any proposal for
establishing, at the present time, any system o f State or public boards
for intervening in trade disputes, we think that a central department,
possessed o f an adequate staff, and having means to procure, record,
and circulate information, may do much by advice and assistance to
romote the more rapid and universal establishment o f trade and
istrict boards adapted to circumstances o f various kinds.
Mentioning then the two Government bills of 1893 and 1894, the
report goes o n :
We think that discretionary powers o f this kind may with advan
tage be exercised by the board o f trade. There seems to be no legal
reason why the board, even without legislation, may not take steps o f
the kind indicated in the bills o f 1893 and 1894, but a statutory provi
sion o f this character will probably be o f use as giving to the board
a better “ locus standi ” for friendly and experienced intervention in
the case o f disturbed trade relations, and would make it easier for it
to employ a staff suitable and adequate for the purposes in question.
The board o f trade at present possesses advantages xor this task, inas
much as the duty o f collecting labor statistics, which is being dis
charged by its labor department, brings it in many ways in touch
with employers and workmen throughout the country, and the officials
charged with this duty justly enjoy the confidence o f both classes to a
large extent.
Some o f the trade boards of conciliation provide for recourse to
arbitration as the last resort when the representatives o f employers
and workmen fail to agree as to the settlement of future wage rates
or other general issues. The district boards o f conciliation also, as a
rule, make it one o f their objects to induce employers and workmen
who are at issue to refer to arbitration questions upon which they are
unable to agree. Among trades which do not possess formal joint
institutions it is not rarely a rule to offer reference to arbitration
before proceeding to a strike or lockout.
It has been pointed out that even where there is a disposition on
both sides to refer to arbitration there is often a difficulty in finding
suitable arbitrators or umpires. Either the arbitrator is quite uncon
nected with industrial work, and then the process o f informing his
mind upon the matter is too long and costly, or he is in some way
connected with the work, and then one party or the other is apt to
suspect him o f bias and partiality.
We think that this difficulty might in many cases be met if power
were given to a public department to appoint, upon the receipt o f a
sufficient application from the parties interested or from local boards
o f conciliation, a suitable person to act as arbitrator, either alone or

50—No. 60—05

M-----2

402

BULLETIN OP THE BUREAU OP LABOR.

in conjunction with local boards, or with assessors appointed by the
employers and workmen concerned, according to the circumstances
o f each case. We think the arbitrators thus appointed would be
fairly free from suspicion o f bias, and that, if the same persons were
habitually appointed to act, and their services were frequently re
quired, they would acquire a certain special skill and weight in deal
ing with industrial questions. Their decisions, however, would not
possess legally binding effect any more than those of unofficial arbi
trators in industrial questions. (°)
The Conciliation Act o f 1896 as finally passed is as follows:
AN ACT to make better provision for the prevention and settlement o f trade dis
putes [7th August, 1896].

Be it enacted by * * * Parliament assembled, and by the
authority o f the same, as follow s:
Any board established either before or after the passing of this act,
which is constituted for the purpose o f settling disputes between em
ployers and workmen by conciliation or arbitration, or any associa
tion or body authorized by an agreement in writing made between
employers and workmen to deal with such disputes (in this act re
ferred to as a conciliation board), may apply to the board o f trade for
registration under this act.
The application must be accompanied by copies o f the constitution,
by-laws, and regulations o f the conciliation board, with such other
information as the board o f trade may reasonably require.
The board o f trade shall keep a register o f conciliation boards and
enter therein, with respect to each registered board, its name and prin
cipal office and such other particulars as the board o f trade may think
expedient, and any registered conciliation board shall be entitled to
have its name removed from the register on sending to the board o f
trade a written application to that effect.
Every registered conciliation board shall furnish such returns, re
ports o f its proceedings, and other documents as the board o f trade
may reasonably require.
The board o f trade may, on being satisfied that a registered concilia
tion board has ceased to exist or to act, remove its name from the
register.
Subject to any agreement to the contrary, proceedings for concilia
tion before a registered conciliation board shall be conducted in
accordance with the regulations o f the board in that behalf.
Where a difference exists or is apprehended between an employer,
or any class o f employers and workmen, or between different classes of
workmen, the board of trade may, i f they think fit, exercise all or any
o f the following powers, namely:
1.. Inquire into the causes and circumstances o f the difference;
2.
Take such steps as to the board may seem expedient for the pur
pose o f enabling the parties to the difference to meet together, by
themselves or their representatives, under the presidency o f a chair
man mutually agreed upon or nominated by the board o f trade, or by
some other person or body, with a view to the amicable settlement o f
the difference;
Final report o f the commission, Part I, pp. 99-101.

GOVERNMENT INDUSTRIAL ARBITRATION.

403

3. On the application of employers or workmen interested, and
after taking into consideration the existence and adequacy o f means
available for conciliation in the district or trade and the circum
stances o f the case, appoint a person or persons to act as conciliator or
as a board o f conciliators;
4. On the application o f both parties to the difference, appoint an
arbitrator.
I f any person is so appointed to act as conciliator, he shall inquire
into the causes and circumstances o f the difference by communication
with the parties and otherwise shall endeavor to bring about a settle
ment o f the difference, and shall report his proceedings to the board of
trade.
I f a settlement o f the difference is effected either by conciliation or
by arbitration, a memorandum o f the terms thereof shall be drawn up
and signed by the parties or their representatives, and a copy thereof
shall be delivered to and kept by the board o f trade.
The Arbitration Act, 1889, shall not apply to the settlement by
arbitration o f any difference or dispute to which this act applies; but
any such arbitration proceedings shall be conducted in accordance
with such o f the provisions of the said act, or such o f the regulations
o f any conciliation board, or under such other rules or regulations as
may be mutually agreed upon by the parties to the difference or
dispute.
I f it appears to the board of trade that in any district or trade ade
quate means do not exist for having disputes submitted to a concilia
tion board for the district or trade, they may appoint any person or
persons to inquire into the conditions o f the district or trade and to
confer with the employers and employed, and, if the board of trade
think fit, with any local authority or body as to the expediency of
establishing a conciliation board for the district or trade.
The board o f trade shall from time to time present to Parliament a
report o f their proceedings under this act.
The expenses incurred by the board o f trade in the execution o f this
act shall be defrayed out o f moneys provided by Parliament.
The Masters and Workmen Arbitration Act, 1824, and the Councils
o f Conciliation Act, 1867, and the Arbitration (Masters and W ork
men) Act, 1872, are hereby repealed.
This act may be cited as the Conciliation Act, 1896.
ESSENTIAL FEATURES OF TH E ACT.

This act, which is the present law upon the subject in Great Britain,
may be briefly summarized thus. It provides three courses of action
to be taken by the board o f trade, v iz :
(1) Any private conciliation or arbitration board may be regis
tered by the board o f trade upon proper application therefor. Such
registration confers no powers upon the board registered, but the
latter must furnish to the board o f trade such information and docu
ments as to proceedings as the latter may “ reasonably require.”
(2) I f it appears to the board o f trade that there are not adequate
means in any district or trade for the submission o f disputes to a

404

BULLETIN OF THE BUREAU OF LABOR.

conciliation board, it may appoint one or more persons to inquire into
the conditions and confer with employers and employed and with
local authorities as to the expediency o f establishing such a board.
(3)
Whenever differences occur or are threatened between em
ployers and employees, or between different classes o f workmen, the
board o f trade may (a) inquire into the causes and circumstances o f
the difference; (&) take such steps as are deemed expedient for the
purpose o f bringing the parties together with a view to conciliation;
(c) on application of employers or workmen appoint one or more
persons as conciliators or as a conciliation board; and (d) on appli
cation by both parties appoint an arbitrator.
A ll expenses incurred by the board o f trade under the act are
borne by the Government.
REGISTRATION AND ESTABLISH M EN T OF PRIVATE BOARDS UNDER TH E ACT.

Four reports by the board of trade on proceedings under this act
set forth in full what had been acomplished by it up to the middle
o f 1903. (a) Concerning the registration of private boards o f concilia
tion or arbitration, in September, 1896, the board o f trade called the
attention o f all such bodies fo the matter by a circular letter in which
the board said:
The register may, it is hoped, be o f service not only in keeping the
public informed as to the progress o f arbitration and conciliation as
methods o f settling labor disputes, but in enabling the board o f trade
to avoid overlapping the work o f voluntary boards when carrying out
the duties intrusted to them under the act. In discharging these
duties it will be necessary for the board o f trade to have regard to
the work o f existing boards o f conciliation and arbitration, and it is
therefore desirable that the register o f such boards should be as
complete as possible.
In response to this invitation, up to June 30, 1897 (eleven months
from the time the law went into operation), 15 boards had registered,
while 6 stated a decision not to register, 4 o f these, however, express
ing willingness to supply the board o f trade with information.
During the following two years 4 more boards registered, making
a total o f 19 up to July, 1899, and no others had registered up to 1903.
O f the 19, 9 were trade boards, 9 were district boards, and 1 was
a general board. The Annual Report o f the Board o f Trade on
Strikes and Lockouts for 1903 gives the number of private boards
known to have taken action in disputes in that year as 73. It appears,
therefore, that only one-quarter o f the boards in existence have
registered under the act. The failure o f a great majority o f the
« First Report by the Board o f Trade o f Proceedings under the Conciliation
(Trade Disputes) Act, 1896, 1897. Second report, 1899. Third report, 1901.
Fourth report, 1903.

405

GOVERNMENT INDUSTRIAL ARBITRATION.

boards to register, however, has not prevented the board o f trade
from securing all needful information, the third and fourth reports
o f proceedings under the act o f 1896 stating that not only the regis
tered but “ most o f the unregistered boards furnish the department
with annual returns o f the work done by them.”
As regards consultation by the board of trade with employers and
employed, or with local authorities, with a view to the formation o f
boards o f conciliation and arbitration, only the first report mentions
the subject, reporting a single case of very informal and fruitless
action. The report explains that it was “ considered desirable to
await the experience to be gained in the course o f the administration
o f the act with regard to the needs o f the various districts and trades,
and the adequacy o f the existing machinery for the settlement of
disputes, before attempting to any large extent to supplement their
deficiencies by the promotion o f the formation o f additional volun
tary boards o f conciliation. Generally speaking, it may be said that
action under this section o f the act is most likely to be o f service i f
taken with caution and after a careful study o f the conditions o f
particular districts and trades and the organizations o f employers
and employed connected therewith.” (a) This feature o f the act has,
therefore, been practically a dead letter.
SETTLEM ENT OF DISPUTES UNDER TH E ACT.

Considering, now, action by the board with a view to the settlement
o f disputes, the number o f cases in which such action has been either
taken or applied for is as follow s:
CASES UNDER THE CONCILIATION ACT OF 1896, ACTED UPON BY THE BRITISH
BOARD OF TRADE, AUGUST, 1896, TO JUNE, 1903.
Period covered by reports.
August, 1896, to June, 1897 (11 m onths).............................................................
July, 1897, to June, 1899 (2 years)........................................................................
July, 1899, to June, 1901 (2 years).............. .............__.......................... __...........
July, 1901, to June, 1908 (2 y ea rs)........................................................................
T o ta l.................................................................................................................

Cases by
years.

Cases.
35
32

i
46 f

18
14

41 l\

154

There was a considerable increase in the number o f cases under the
law in the two years 1899-1901 over the number for 1897-1899, but
the number for the last two years declined slightly as compared with
1899-1901. It is noticeable that there were more cases during the
first eleven months than in any one year thereafter.
Not all o f the above were disputes involving stoppage o f work, but
i f the total number be compared with the number o f strikes and lock
« First Report by the Board o f Trade o f Proceedings under the Conciliation
(Trade Disputes) Act, 1896, pp. 46, 47.

406

BULLETIN OF THE BUREAU OF LABOR.

outs recorded by the board o f trade for the seven calendar years 1896 to
1902 it appears that the cases under the act have equaled 3 per cent o f
the strikes and lockouts. Carrying out this rough comparison for
years shows the follow ing:
CASES UNDER THE CONCILIATION ACT OF 1896, ACTED UPON BY THE BRITISH
BOARD OF TRADE, 1896-97 TO 190 2 -3 , COMPARED W ITH TOTAL STRIKES AND
LOCKOUTS IN GREAT BR ITAIN, 1896 TO 1902.
Cases under the law.
Year.

Strikes and lockouts, (a)
Number.

1896-97......................................................
1897-98......................................................
1898-99......................................................
1899-1900...................................................
1900-1901............................................ .
1901-2........................................................
1902-3........................................................

35
19
13
14
32
21
20

Total..............................................

154

Year.

Number.

1896........................................................
1897........................................................
1898........................................................
1899........................................................
1900........................................................
1901........................................................
1902........................................................

926
864
711
719
648
642
442

T otal.......................................

4,952
1

a From Reports of the British Board of Trade on Strikes and Lockouts, 1900, p. x ii;
1903, p. 11.

Under the law the board o f trade may take action in disputes either
upon its own motion or upon application from one or both o f the par
ties. As a matter o f fact the board has taken the initiative in very
few cases, as shown in the table below. In this connection it must be
remembered that it was never intended that the act should be aggres
sively applied by the board o f trade where private boards o f con
ciliation or arbitration are available. And the third report states
that “ great care is taken by the board o f trade to avoid any risk o f
interfering with or hindering the activity ” o f such boards. (a)
IN IT IA T IV E IN CASES UNDER THE CONCILIATION ACT OF 1896, ACTED UPON
BY THE BR ITISH BOARD OF TRADE, FOR EACH PERIOD, 1896-97 TO 1901-1903.
Action upon application of—
Period.

Independent
action by
board of
trade.

Total
cases.

Employ
ers.

W ork
men.

Both
parties.

1896-97 .........................................................
1897-1899 ......................................................
1899-1901 ......................................................
1901-1903......................................................

9
4
3
4

16
14
16
8

6
12
24
29

31
30
43
41

4
2
3

35
32
46
41

T otal.................................................

145

154

Total.

This table brings out the fact that workmen have been more in
clined to resort to the act than employers, and the still more striking
fact o f the large increase in joint applications by the parties in the
second and third reports and the great preponderance o f such cases
in the last report. This frequency o f joint applications in later
years was the natural result o f the increased resort to the law for
a Third Report by the Board o f Trade o f Proceedings under the Conciliation
(Trade Disputes) Act, 1896, p. 12.

407

GOVERNMENT INDUSTRIAL ARBITRATION.

arbitration purposes noted below, since by the terms o f the statute
all applications for the appointment o f arbitrators must be joint.
The cases acted upon under the law and their methods o f settlement
are set forth in the following table :
CASES UNDER THE CONCILIATION ACT OF 1896, ACTED UPON BY THE BRITISH
BOARD OF TRADE, BY METHODS OF SETTLEMENT, 1896-97 TO 1901-1903.
Settled by—

Period.

Applica Settled
tion de by par
clined by ties durboard of ingnegotrade. tiations.

1896-97 ......................
1897-1899...................
1899-1901 ...................
1901-1903 ...................

7
5
7
4

4
3
3
4

T otal..............

Concilia
tors ap
pointed
byboard.

3
2
11

Concilia
tion
through Arbitra
tors ap
repre pointed
senta by board.
tives of
board.

Total.

Failed of
settle
ment.

Total
cases.

12
8
3

5
10
23
27

19
22
29
29

5
2
7
3

35
32
46
&41

6154

° In one case the conciliator subsequently acted as arbitrator on request of both parties.
6 Including one case pending at time of report.

During the seven years the board declined to act on 23 appli
cations “ on the general ground that no useful purpose would
be served by any action on the part o f the department,” to quote
the first report. (a) Such, for example, were cases in which em
ployees had found work elsewhere, or new hands bad been employed,
or upon inquiry one or both parties manifested no inclination to
make concessions. Fourteen others out o f the total cases of action
taken or invited are reported as settled by the parties after negotia
tions had been begun by the board. Nine o f these settlements were
already arranged or were under way before action by the board had
gone further than simple communication with the parties or investi
gation o f the facts. In two others the board had arranged for
negotiations— in one case for a conference in the presence o f a rep
resentative o f the board and in the other for a hearing by an arbi
trator appointed by the board—but before the time set therefor the
parties came to terms. In,another case a conference had been held
in the presence o f a representative o f the board, after which the
parties reached a mutual agreement by themselves. In another the
employees were advised by the board to withhold a strike notice
and confer with employers, which advice was taken and resulted in
a settlement. O f the above thirteen cases it would appear that in
the last two the board’s action materially contributed to the termina
tion o f the dispute. The remaining case classified as settled by
parties during negotiations was the great dispute in the engineering
trade in 1897, and the action taken by the board o f trade therein was
a First Report by the Board o f Trade o f Proceedings under the Conciliation
(Trade Disputes) Act, 1896, p. 6.

408

BULLETIN OF THE BUREAU OF LABOR.

as follows :( a) Beginning early in the year the differences reached
the stage o f strike and lockout in July. Through negotiation during
October and November the board of trade arranged for conferences
between the parties. These conferences were held during the last
week in November and the first week in December, and from December
14 to 18, the parties having agreed to suspend all aggression in the
form o f lockouts or strikes pending the result. The board’s efforts
ended with the arrangement o f these conferences, at which repre
sentatives o f the parties alone were present. The negotiations
failed to settle the controversy, however, as the terms arrived at by
the representatives were decisively rejected by the unions, the result
being an ending of the truce and resumption of hostilities. The
matter stood thus until January 13, 1898, when negotiations between
the parties were reopened by the unions, which led to a final agree
ment on January 28, with resumption of work the following week.
This final settlement was reached by the parties alone and a little
over a month after the failure o f the conference arranged by the
board o f trade, but the essential part o f the final agreement was the
same as the proposed agreement o f the earlier conference.
Subtracting the 37 cases in which applications were rejected or
the parties came to terms independently during the negotiations,
leaves 117 disputes in which procedure under the law was carried
out. O f these, 99 were settled and 17 failed of settlement, while 1
was pending at the time of the last report. The number o f disputes
definitely settled under the law, therefore, was equal to 64 per cent of
the total cases in which action was taken or invited, or 85 per cent of
the cases o f full procedure.
As between the different methods of settlement, more disputes
were settled by arbitration than by conciliation. This was not the
case during the first three years, for then the majority o f settlements
were by conciliation. But, as indicated in the table above, from the
first there has been a constant decrease in number of conciliation
cases and increase in arbitrations, so that during the last two years,
outside o f applications declined and disputes settled by the parties
during negotiations, nearly all the cases under the act were arbitra
tions. This development o f the law more and more in the direction
o f arbitration exclusively is the most striking feature o f its applica
tion in practice. One result o f the past success in this field, which at
the same time indicates that extensive activity in it is likely to con
tinue, has been the adoption by many private boards o f conciliation of
rules providing for an appeal to the board o f trade to appoint an
arbitrator or umpire under the conciliation act whenever the private
bo&rd is unable to reach an agreement. In June, 1901, 35 such rules
« As described in Report o f the Board o f Trade on Strikes and Lockouts,
1897, p. lv.

GOVERNMENT INDUSTRIAL ARBITRATION.

409

were known by the board of trade to have been adopted. During the
next two years 1 of these was rescinded, but 7 others were added
to the list, so that in June, 1903, there were 41 conciliation boards, or
agreements for the appointment of such in case o f disputes, which had
made permanent provision for appeal to the board o f trade under the
Conciliation Act. (a) During the two years, July, 1901, to June, 1903,
5 appeals from conciliation boards for arbitrators under such rules
were received and complied with by the board of trade.
O f the 34 successful conciliation cases the great majority were con
ducted directly by representatives o f the board o f trade, outside con
ciliators being appointed but 11 times. In 2 of the 34 cases applica
tions for action came from both sides, in 4 the board took the
initiative without any application, while in the others application
came from one side only.
O f the 17 cases which failed of settlement 16 were failures o f con
ciliation. In 1 o f these application for action came from both
sides, in 3 the board acted on its own initiative, while in 12 one
party only had applied to the board. In 4 o f the 16 (one of these
being the great coal-trade dispute o f 1898) outside conciliators were
appointed, while the efforts for settlement in the others were made
by the board’s representatives. In the one case in which arbitration
failed the dispute was over the size o f boxes for fish packing to be
used by pontoon laborers and over the introduction of certain appli
ances for discharging fish cargoes which the employers wished to use.
It was finally agreed by the employers’ association and the laborers’
union to refer the matter to arbitration, and joint application was
made to the board of trade for an arbitrator; but when the arbi
trator named by the board rendered an award which was in favor o f
the employers the men refused to accept it by declining to handle the
boxes provided in accordance with its terms. This case occurred in
June and July o f 1902, and up to the middle o f 1903 the workmen
still refused to fulfill the award in spite of the efforts o f their union
officials to induce them to abide by it. This, however, was the only
instance known to the board of trade in June, 1903, in which an
award under the Conciliation Act had not been carried out.
O f the 99 disputes settled, in 49 a stoppage o f work occurred, while
in 50 there was no strike or lockout. O f the latter, all but 7 were
arbitration cases in which the parties jointly petitioned the board o f
trade to name an umpire after they had o f their own motion agreed
to submit to arbitration.
» Thirty-seven o f the 41 provided specifically that the board o f trade should
appoint an arbitrator or umpire whose decision should be final. The other
4 simply stated that the matters in dispute should be referred to the board o f
trade for settlement under the act.

410

BULLETIN OF THE BUREAU OF LABOR.

FRANCE.
MEASURES PROPOSED PRIOR TO 1892.

While Government provision for the settlement o f individual dis
putes between employer and employee has existed in France for nearly
a century in the councils of prudhommes, (a) it was not until 1892
that any such provision for collective disputes was made. Legisla
tion upon the subject was proposed, however, as early as 1864. When
the bill for the reform law o f May 25,1864, granting freedom o f coali
tion to employers and work people, was under discussion, the question
o f providing therein for compulsory reference o f collective disputes
to conciliation committees appointed by the parties, with recourse to
the councils o f prudhommes where such committees failed, was con
sidered. But the Government’s fear of establishing tribunals which
would attempt to fix wages prevented the incorporation in the law of
this project, which would have amounted to compulsory arbitration.
After 1864 the next proposal of legislation appeared in the parlia
mentary session o f 1886-87, when three bills for industrial arbitration
and conciliation were introduced. One o f these provided for compul
sory arbitration before four impartial arbitrators, two to be chosen
by each party and each side to be represented at the hearings by two
delegates. In case o f disagreement the four arbitrators were to choose
a fifth, to act as umpire. A second bill was introduced by the min
ister o f commerce and industry on behalf o f the Government. This
contemplated purely voluntary arbitration before temporary boards
chosen by the parties in each dispute, the utilization of mayors of
cities as means o f communication between the parties in forming such
boards, and the recording and publication by the mayors o f all deci
sions rendered. The third measure resembled in part the Government
bill, eliminating, however, the publication o f refusals to arbitrate and
substituting local tribunals o f commerce, civil tribunals, or justices of
the peace for the mayor as intermediary; but it provided also for a
detailed system o f permanent councils to be established by employers
and employees, each council to contain a conciliation committee and
council o f arbitration.
The parliamentary committee to whom these three proposals were
submitted made a report on June 27, 1889—too late for discussion at
that session. The committee was opposed to any form o f compulsory
arbitration, but favored permanent councils for voluntary arbitration
for all trade unions recognized by law; was in favor o f mayors of
cities in preference to other officials as intermediaries for special arbi
trations in case o f strikes, and was in favor of giving agreements made
before councils the force o f law, provided individual employees might

Established in 1806.

GOVERNMENT INDUSTRIAL ARBITRATION.

411

within forty-eight hours o f the making o f such agreements free
themselves therefrom by notice to their employers to that effect.
The first and third of the above-mentioned bills o f 1886-87 were
reintroduced in 1890, that for compulsory arbitration having been so
modified, however, as to eliminate legally enforceable awards, though
still proposing to make reference to arbitration compulsory. In 1891
two more bills were introduced. One of these was almost an exact
copy o f the Belgian law for councils o f industry and labor: the other
was a bill introduced after an exhaustive investigation o f the whole
subject. To prepare this measure the Government had first asked
advice o f chambers o f commerce, chambers o f arts and manufactures,
and the councils o f prudhommes. The superior council o f labor to
whom the information so obtained was submitted found the majority
o f opinions to be against any legislation upon the subject. It was
maintained that existing laws, in particular the trade union act of
March 21, 1884, left employers and employees entirely free to estab
lish tribunals if they chose, and that permanent councils would but
duplicate the councils of prudhommes. It was held to be impossible
to make arbitration awards compulsory, and the fear was expressed
that any legislation would create dangerous agitation and tend rather
to foment than prevent strikes.
Nothing daunted by these adverse opinions, the superior council of
labor turned the whole subject over to a special committee, which
reported in favor of legislation on the ground that while arbitration
was to be looked for chiefly through the agency of trade unions, there
were, nevertheless, many lines o f industry in which organizations did
not, or even could not, exist, and for such a special law was needed.
The committee opposed extension of the jurisdiction o f the councils
o f prudhommes to the field o f collective disputes as a confusion of
two separate and distinct classes, legally enforceable decisions being
entirely practicable in case of individual disputes, but impossible for
collective differences. Justices of the peace were favored as the most
impartial officials for intermediaries between employers and employ
ees, and the committee believed arbitration awards should be made
public by the Government.
THE CONCILIATION AND ARBITRATION L A W OF 1892.

Out o f the investigations of the superior council and further
researches made by the French bureau o f labor («) came a Govern
edThe materials collected by the bureau o f labor were published in 1893 in a
report o f over 600 pages, entitled “ De la Conciliation et de 1’Arbitrage dans les
Conflits Collectifs entre Patrons et Ouvriers en France et a rfitranger.” At
that time it was the most comprehensive review o f the subject in existence, both
for France and foreign countries. The facts for the above account of the in
ception and passage o f the French law are taken therefrom.

412

BULLETIN OF THE BUBEAU OF LABOB.

ment bill, introduced in November, 1891, which contemplated both
temporary and permanent councils. The parliamentary committee
to whom the four bills then before the House o f Deputies were re
ferred reported in 1892 in favor o f the Government measure so far
as concerned temporary councils, but rejected that portion providing
for permanent tribunals, whereby the system contained in the bill,
notwithstanding the investigation and discussion o f the interim, be
came essentially the same as that in the Government measure intro
duced six years earlier, in 1886. Before its passage, however, two
important additions were made, i. e., one giving justices of the peace
power to initiate proceedings independently o f any requests from the
parties, and another providing for the appointment o f an umpire by
the president o f the local civil tribunal where the two arbitrators ap
pointed by the parties could not agree upon one. So amended the
bill became the law o f December 27,1892, (a) which is still the French
law upon the subject in spite of numerous amendments or substitutes
which have from time to time been proposed but never enacted. A
decree o f September 7, 1893, made the law applicable to Algiers.
ESSENTIAL FEATURES OF TH E L A W .

The act applies to all collective disputes concerning the conditions
o f labor. Initiative for action may come from the parties, or, in case
o f strikes and lockouts, from justices o f the peace. A difference
having arisen, either party, or both parties jointly, may apply to the
local justice o f the peace for reference to conciliation. I f the appli
cation comes from one party the justice must within twenty-four
hours give notice thereof to the opposite party, who must reply
within three days, unless notice of need o f longer time be given,
silence to be interpreted as refusal. Each party, either in its appli
cation or in notice o f acceptance, must name not more than five per
sons as its representatives or delegates. In case of strikes, if neither
party makes application it is the duty o f the justice to request the
parties to notify him within three days o f their willingness or refusal
to submit the difference to conciliation or arbitration, and i f the
parties accept either course the same procedure is to be followed as in
case of uninvited application by the parties.
Both sides having agreed to proceedings under the act, the next
step directed is an earnest effort by the justice to organize a concilia
tion committee, with himself as chairman. I f an agreement is
reached in this committee, it is to be embodied in a report drawn up
by the justice and signed by the parties or their representatives. I f
a For an English translation o f the French law see Bulletin o f the United
States Department o f Labor, No. 25, p. 854, or Report o f the United States
Industrial Commission, Vol. X V II, p. 510.

GOVERNMENT INDUSTRIAL ARBITRATION.

413

the conciliation committee fails in its efforts, the justice is to invite
the parties to submit the case to arbitration, each side to name one
or more arbitrators, or one common arbitrator being agreed upon.
I f the arbitrators can not reach a decision, they may name an umpire
to decide the case, and if they can not agree upon an umpire they
are to so report to the justice, who shall in turn notify the president
o f the local civil tribunal, and this official is to name the third
arbitrator. Decisions by arbitrators must be delivered in writing
to the justice o f the peace. A ll expenses o f proceedings are to be
borne by the communes or departments.
The entire procedure from beginning to end, including the keep
ing o f agreements or acceptance o f awards, is absolutely voluntary
for the parties. The only feature of the act designed to bring any
pressure to bear upon them is the requirement that the reports o f
conciliation committees, decisions o f arbitrators, and requests for and
refusals o f proceedings under the act are to be communicated by the
justices to the mayors of the communes in which the disputes occur,
and by the latter officials made public.
The one original feature in the French law, which is not to be
found anywhere else, is the utilization o f justices o f the peace either
as intermediaries where the parties to disputes take the initiative or,
in case o f need, as the means o f independent initiative on behalf o f
the Government. In 1896 there were 2,870 («) justices o f the peace in
France who, under this provision, stood as official mediators in
industrial disputes.
SETTLEM ENT OF DISPUTES UNDER TH E L A W .

The law went into effect upon its approval. In the following
month—January, 1893—the minister o f commerce and industry ad
dressed a letter to all police prefects explaining the purpose and
spirit o f the act and urging those officials, even though not directly
concerned in the execution o f the law, to use all their influence in
its favor. In February the minister o f justice, in a circular sent to
all justices o f the peace, explained in detail their duties under the
act, pointing out that its success depended in large measure upon
them. Finally, in February also, copies o f both the above were sent
to all organizations o f employers and all trade unions, accompanied
by a note from the minister o f commerce and industry, bespeaking
their support for the law.
Beginning with 1893, the French bureau o f labor has each year
incorporated in its annual report on strikes and lockouts statistics
concerning the operation o f the arbitration law o f 1892. ( *6) During
« Annuaire Statistique de la France, 1899, p. 574.
&Statistique des Graves et des Recours a la Conciliation et & rArbitrage.

414

BULLETIN OF THE BUBEAU OF LABOR.

the eleven years from 1893 to 1903 recourse was had to the law 1,413
times, or an average o f 128 per year. Twenty-three o f the total
number were disputes in which no stoppage o f work occurred, while
1,390 were strikes or lockouts, which is equal to 23.7 per cent of the
5,874 such disputes reported by the bureau of labor during the eleven
years. The record, by years, is as follow s:
DISPUTES IN W HICH SETTLEMENT W AS ATTEM PED UNDER THE LAW , COM
PARED W ITH TOTAL STRIKES AND LOCKOUTS IN FRANCE, 1893 TO 1903.
Disputes in which settle
ment was attempted—
Year.

Before
A fter
strike or strike or
lockout. lockout.

Total.

Attempts
Total
to settle •
strikes
per 100
and lock strikes
outs.
and lock
outs.

1893...............................................................................
1894...............................................................................
1895...............................................................................
1896...............................................................................
1897...............................................................................
1898...............................................................................
1899...............................................................................
1900...............................................................................
1901...............................................................................
1902...............................................................................
1903...............................................................................

7
8
5
6
3
2
2
9
6
4
9

102
93
80
98
85
92
195
225
136
103
143

109
101
85
104
88
94
197
234
142
107
152

634
391
405
476
356
368
740
902
523
512
567

17.2
25.8
21.0
21.8
24.7
25.5
26.6
25.9
27.2
20.9
26.8

Total..................................................................

1,352

1,413

5,874

24.1

The largest number o f cases* of resort to the act appears in 1900,
when the total was more than twice that of any previous year except
1899, while the smallest number was in 1895. The most noticeable
variations from year to year appear in the great increases of 1899 and
1900, followed by equally striking decreases in 1901 and 1902, and
then an increase in 1903 to a number higher than in any other outside
o f the exceptional years 1899 and 1900. These variations follow in
general the variations in number of strikes and lockouts so that, as
indicated in the last column o f the table, proportionately to the total
number o f industrial disputes occurring the amount of recourse to
the law varies much less noticeably. While no constant tendency
either upward or downward is discernible throughout the period,
there is a noticeable contrast between the last five years and the pre
ceding six. Thus from 1893 to 1898 the actual attempts to apply
the law averaged 97 per year, or 22.1 per hundred strikes and lock
outs for each year, whereas from 1899 to 1903 the number per year
averaged 166, or 25.6 per hundred strikes and lockouts.
The table above brings out the fact that nearly all action under the
French law has been taken after disputes had developed into strikes
or lockouts. The cases in which proceedings were instituted before
that stage had been reached average less than half a dozen per year,
and in a majority o f these (38 in all), as noted below, stoppage of
work occurred later.

415

GOVERNMENT INDUSTRIAL ARBITRATION.

The following table shows by whom the initiative for procedure
under the law was taken:
IN ITATIVE IN ATTEM PTS TO SETTLE DISPUTES IN FRANCE, 1893 TO 1903.
Disputes, attempts to settle which were initi
ated by—
Year.
Employ W ork
ers.
people.

Justices
Both
of the
parties. peace.

Total.

1893.................................................................................
1894.................................................................................
1895.................................................................................
1896.................................................................................
1897.................................................................................
1898.................................................................................
1899.................................................................................
1900.................................................................................
1901.................................................................................
1902.................................................................................
1903.................................................................................

5
4
2
4
4
3
1
6
5
5
3

56
51
46
57
46
57
112
141
67
60
89

2
2
3
4
1
2
4
8
3
2
2

46
44
34
39
37
32
80
79
67
40
58

109
101
85
104
88
94
197
234
142
107
152

Total....................................................................

782

556

1,413

Employers have shown but little inclination to resort to the act,
while working people have of their own motion appealed to it in over
one-half o f the attempts to apply it. The cases in which the parties
turned to the law by joint agreement have been even fewer than
the cases o f initiative by employers alone. Justices of the peace
have manifested considerable activity in applying the law, having
instigated proceedings independently in over one-third of the total
number. The relative amounts of each kind of initiative remain
very much the same throughout the eleven years.
Many o f the attempts to apply the law get no further than mere
proposal to resort to it, one or other of the parties refusing to join
in the proceedings, thus:
DISPUTES IN W HICH SETTLEMENT W AS REJECTED, AND PER CENT OF REJEC
TIONS OF TOTAL ATTEM PTS TO SETTLE, FRANCE, 1893 TO 1903.
Disputes in which settlement was
rejected by—
Year.

Employ W ork
people.
ers.

Both
parties.

6
4

2
1
2

1893..............................................................
1894..............................................................
1895..............................................................
1896 .............................................................
1897..............................................................
1898...............................................................
1899..............................................................
1900..............................................................
1901...............................................................
1902..............................................................
1908...............................................................

34
24
29
41
20
32
65
88
51
35
46

3
2
1
1
3
4
2
1

Total.................................................

465

Total.

Total at
tempts
to settle
disputes.

Percent
of rejec
tions of
total at
tempts.

3
5
13
5
6
5
8

42
29
31
44
25
38
79
96
61
42
55

109
101
85
104
88
94
197
234
142
107
152

38.5
28.7
36.5
42.3
28.4
40.4
40.1
41.0
43.0
39.3
36.2

542

1,413

38.4

Over 38 per cent of all the attempts in the eleven years failed thus
at the very outset, and these failures, except in a very few cases, were
due to refusal on the part o f employers. The proportion of such

416

BULLETIN OF THE BUREAU OF LABOR.

failures remains fairly constant throughout the period. As a rule
these rejections meant the continuance or the inauguration o f strikes.
But in a few cases each year, amounting to 69 for the eleven years, the
refusal o f employers was followed by the abandonment o f the struggle
by the employees.
Besides the above cases in which proceedings for conciliation were
never reached there were some others each year, amounting to 87 for
the entire period, in which disputes were brought to an end after
procedure under the law had been inaugurated but before the concilia
tion committees had been organized. Some o f these arrangements
were the result o f direct efforts o f justices o f the peace as informal
mediators, the remainder being effected by the parties themselves.
By subtracting the cases o f rejected proceedings and agreements
reached during preliminary negotiations from the total attempts to
apply the law the cases in which full procedure was carried out are
found. The results in those cases are set forth in the following table:
CASES OF FULL PROCEDURE SETTLED BY CONCILIATION AND BY ARBITRA
TION AND CASES W HICH FAILED OF SETTLEMENT, FRANCE, 1893 TO 1903.

Year.

Cases settled by—
Total
cases of
full pro Concilia Arbitra Total.
cedure.
tion.
tion.

Cases
which
cent
failed of Per
settled.
settle
ment.

1893...............................................................
1894...............................................................
1895...............................................................
1896...............................................................
1897..............................................................
1898...............................................................
1899...............................................................
1900...............................................................
1901...............................................................
1902..............................................................
1903...............................................................

54
64
50
53
54
52
109
124
72
59
93

28
37
27
21
25
20
40
64
41
34
51

5
2
8
1
5
2
6
18
8
2
2

33
89
80
22
30
22
46
82
49
36
53

21
25
20
31
24
30
63
42
23
23
40

61.1
60.9
60.0
41.5
55.6
42.3
42.2
66.1
68.1
61.0
57.0

Total.................................................

784

a 388

442

342

56.4

° Thirty-three of these were not definitely arranged in the conciliation committees, but
were arranged in continued negotiations between the parties afterwards. They may
fairly be credited to the law, however.

In over 56 per cent o f the cases in which full trial o f the procedure
provided in the law was made a settlement was effected. As between
different years it will be seen that the proportion o f success from
1896 to 1899 was considerably lower than from 1898 to 1895, but
in 1900 and 1901 the percentage suddenly leaps up much beyond that
o f any earlier year only to decline sharply in 1902 and 1908, so that
the period as a whole does not show an increasing proportion o f
settlements. The table brings out clearly the fact that nearly all the
success o f proceedings under the law has been attained by concilia
tion. Further facts as to the arbitration cases are set forth in the
following table:

417

GOVERNMENT INDUSTRIAL ARBITRATION.

CASES IN W HICH ARBITRATION W AS PROPOSED UNDER THE LAW IN FRANCE,
BY RESULTS, 1893 TO 1903.
Number of cases in which arbitration was—
Year.

Refused by—
Pro
posed.

Employ W ork
ers.
people.

1893..............................................
1894.............................................
1895.............................................
1896..............................................
1897............ .................................
1898..............................................
1899..............................................
1900..............................................
1901..............................................
1902..............................................
1903..............................................

23
18
22
22
23
21
40
51
19
15
20

9
13
7
12
13
9
13
16
5
4
4

Total................................

274

105

Both.

Total.

3
6

3
3
8
5
3
8
20
9
4
4
6

15
16
17
19
18
18
34
30
11
11
16

205

2
2
2

1
1
5
2

Accept Success
ed but
ful.
failed.
3

2
2

3
1
5

2
2

6
18
8
2
2

* One of these successful arbitrations was not exactly by the method prescribed in the
law. The parties submitted the case to the justice of the peace in the first instance,
without the formation of a conciliation committee.

In the great m ajority o f cases where conciliation committees failed
to settle disputes efforts for arbitration were made, as directed by the
law, but out o f 274 cases o f this kind the effort was fruitless in all but
54. Nearly all o f these failures were due to refusal o f arbitration by
the parties at the very outset, and though such refusals have come much
oftener from employers than from work people, they have been by
no means confined to the former class. The fact is, as pointed out
in each o f the first four annual reports on its operation, the French
law encountered a pretty general and strong opposition to arbitration
as distinguished from conciliation. This opposition served not only
to prevent arbitration proceedings after conciliation had failed, but,
owing to a misunderstanding o f the law, proved a serious obstacle to
conciliation. A ll four o f the above-mentioned reports complain o f
a prevalent misconception which interpreted the statute as compelling
resort to arbitration in case conciliation failed, which naturally
operated to keep those opposed to arbitration from conciliation pro
ceedings as well. Evidence o f this appeared, say the reports, in the
fact that the reason oftenest given for refusal to join in conciliation
negotiations was that the dispute in question was not susceptible o f
arbitration, and the report for 1895 asserts that had the law been per
fectly understood there would not have been more than one-third as
many refusals o f conciliation as there were during the first three
years. So far as can be seen in the annual number o f refusals o f
conciliation and refusals o f arbitration above given there is no sign
o f any lessening o f such opposition, with the possible exception o f a
noticeably smaller number o f rejections o f arbitration by employers
in the last three years.
50—No. 60—05 m----- 3

418

BULLETIN OF THE BUREAU OF LABOR.

Where the parties submitted to it, arbitration proved successful
in over three-fourths o f the cases. O f the 15 cases in which it failed,
in 8 the difficulty was in connection with the appointment o f arbi
trators— once the parties were unable to agree upon arbitrators, four
times one or both o f those chosen declined to serve, twice the arbitra
tors could not agree upon an umpire, and once two successive umpires
appointed by the president o f the local civil tribunal refused to act.
O f the other 7 failures, in 3 the arbitrators were unable to agree upon
an award, in 1 the employer announced his acceptance o f the award,
but refused to reemploy the strikers, while in the other 3 the work
people rejected the award, though in one o f these they afterwards
accepted it.
A s already indicated, nearly all that has been accomplished by the
French law has been in connection with disputes which involved
stoppage o f work. During the eleven years to 1903, out o f the 1,413
attempts to apply the law, but 61 were made before work had been
interrupted by strike or lockout, and strikes or lockouts afterwards
occurred in more than half o f these, so that the law served to prevent
stoppage o f work in but 23 cases, with, moreover, no sign o f any
increase o f success in this direction, as indicated by the follow ing
figures:
DISPUTES IN W HICH SETTLEMENT UNDER THE LAW W AS ATTEM PTED BE
FORE STRIKE OR LOCKOUT AND NUMBER OF STRIKES AND LOCKOUTS PRE
VENTED, FRANCE, 1893 TO 1903.

Total
attempts
to settle
disputes.

A t
tempts
before
strike or
lockout.

A t
tempts
followed
by strike
or lock
out.

1898..................................................................................................
1894..................................................................................................
1895..................................................................................................
1896..................................................................................................
1897..................................................................................................
1898
...........................................................................................
1899..................................................................................................
1900..................................................................................................
1901..................................................................................................
1902..................................................................................................
1903..................................................................................................

109
101
85
104
88
94
197
234
142
107
152

7
8
5
6
3

3
2
4
4
2
2
2
6
4

Total....................................................................... ............

1,413

Year.

2
2

9
6
4
9

7
38

Strikes
and lock
outs pre
vented.
4
6
1
2
1
3
2
2
2

I f, follow ing the practice o f the official reports, all cases be classed
either as settlements or failures, the follow ing summary o f results
under the French law may be made:

419

GOVERNMENT INDUSTRIAL ARBITRATION.

TOTAL DISPUTES SETTLED AND W HICH FAILED OF SETTLEMENT UNDER THE
LAW , FRANCE, 1893 TO 1903.
cent
Total Per cent Per
settle
Total at Total disputes of settle ofments
tempts to disputes
wnich
ments
of all
settle
failed of of at
strikes
disputes. settled. settle
tempts and
lock
ment. to settle.
outs.

Year.

1893.................................................................................
1894....................................................................- ...........
1895.................................................................................
1896........................... .....................................................
1897.................................................................................
1898.................................................................................
1899.................................................................................
1900.................................................................................
1901.................................................................................
1902.................................................................................
1903.................................................................................

109
101
85
104
88
94
197
234
142
107
152

51
53
36
37
41
30
59
106
65
47
70

58
48
49
67
47
64
138
128
77
60
82

46.8
52.5
42.4
35.6
46.6
31.9
29.9
45.3
45.8
43.9
46.1

8.0
13.6
8.8
7.8
11.5
8.1
8.0
11.8
12.4
9.1
12.3

Total....................................................................

1,413

595

818

42.1

10.1

Under settlements are here included those disputes terminated be
fore the organization o f committees was completed, and those aban
doned as soon as proposed procedure under the law was rejected, as
well as those settled in full procedure. Failures include cases in
which the dispute was continued, either because the proposition for
conciliation or arbitration had been refused at the outset or the regu
lar negotiations had been unsuccessful. Crediting thus everything
possible to the law it is found to have settled 42.1 per cent o f the
disputes in which any trial was made o f it, and to have terminated
10.1 per cent o f all the strikes occurring during the eleven years. The
proportion o f success to failure and the proportion o f all disputes
settled both fluctuate from year to year, but during the eleven years
to 1903 show no general tendency either upward or downward.
BELG IU M .
A single law o f 1887 comprises Belgian legislation upon the sub
ject o f conciliation and arbitration in collective disputes. The royal
commission on labor appointed in 1886 assigned the subject o f concil
iation and arbitration to one o f its sections for special investigation.
The result was the recommendation by the commission o f a law
which contemplated permanent councils o f conciliation to be estab
lished by the Central Government for single firms or establishments
or for groups o f establishments. Initiative for the formation o f
councils was to be left, so far as possible, to the employers and em
ployees, who were to make request therefor to the local communal
council, by whom, after deliberation, the request was to be trans
mitted to the Central Government. But the way was to be left open
for the communal council, or in case o f existing dispute or strike the

420

BULLETIN OF THE BUBEAU OF LABOR.

Central Government itself to take the initiative. The important con
ditions specified for the constitution and procedure o f the councils
were that they should be composed o f equal numbers o f employers and
workmen, each o f those classes electing their delegates; that the pres
ident, chosen ordinarily by the members, but whose office in case o f
need might be exercised by a justice o f the peace, was to be only a
presiding officer with no vote; that the council might, however, on
request o f all the parties interested, appoint an umpire or arbitrator;
that the councils might meet at any time they chose, but could be
convened at the call o f the mayor o f the commune, and must meet on
demand o f one-half o f the members; and that reports o f the pro
ceedings o f the councils were to be filed with the justice o f the peace.
L A W OF AUGUST 10, 1887.

This plan recommended by the commission was patterned after the
“ joint committees ” for conciliation and arbitration established
under private initiative in England, and was confined simply to the
question o f settlement o f disputes. The Belgian Parliament, how
ever, manifested a decided preference for a very different scheme,
which was embodied in a law o f August 16, 1887, in which the settle
ment o f disputes was but one part, and that a secondary one, in a larger
system. This system was essentially a combination o f suggestions
made to the commission on labor by M. Hector Denis, professor of
political economy in the University o f Brussels, with the features o f
a private arbitration tribunal established for the boot and shoe indus
try, which had also been submitted to the commission. (a)
PROVISIONS OF TH E L A W .

The law o f 1887 provides for councils o f industry and labor, whose
role is declared to be “ to deliberate upon the common interests o f
employers and employees, to prevent, and, if necessary, adjust d if
ferences which may arise between them.” ( &) The essential fea
tures in the constitution and procedure o f these councils, as quite
briefly prescribed in the act, are as follow s: They are to be estab
lished by royal decree in every locality where their utility is clear.
This establishment may be either at the w ill o f the Royal Govern
ment, or upon request o f communal councils, or upon application
a The above facts concerning the passage o f the Belgian law are taken from
the report of the French bureau o f labor, De la Conciliation et de l’Arbitrage
dans les Conflits Collectifs entre Patrons et Ouvriers en France et k l’fitranger,
1893, pp. 432 ff.
» Art. I of the law.

GOVERNMENT INDUSTRIAL ARBITRATION.

421

o f employers or working people. Each council has as many sec
tions as there are distinct •industries in the locality. The section,
which is the unit in the system, represents, therefore, a single indus
try in one locality and is composed o f equal numbers o f representa
tives, not less than six nor more than twelve, elected by employers
and laborers separately, and the members choose a president and a
secretary from their own number. As to procedure for the election
o f members, the statute simply prescribes that the regulations fixed
by law for the election o f members o f the councils o f prudhommes,
or industrial courts, are to be followed. But by royal decrees o f
August 15, 1889, March 10, 1893 (the principal one), and o f March
26 and A pril 11,1897, this whole matter—qualification o f electors and
members, preparation o f electoral lists, nomination o f candidates,
balloting, contested elections, etc.—is regulated in great detail. Each
section must hold at least one meeting a year, at the time and place
indicated by the permanent committee o f the provincial council, but
is to be convened at any time by the said committee upon the request
o f either employers or laborers. The communes are required to fur
nish the necessary meeting places for councils or sections. The coun
cil o f any locality or several sections o f the same or different locali
ties may be summoned at any time by royal decree to a general as
sembly to give their advice upon any subject o f general interest con
cerning labor or industry which the K ing may see fit to submit to
them. These assemblies elect their own president and secretary, but
the Government may appoint a commissioner to take part in the
deliberations. In case o f all the above-mentioned meetings o f coun
cils or sections or o f assemblies, the subject to be considered and the
length o f the session are strictly determined by the convening order
either o f the permanent committee o f the provincial council or the
royal decree, and no other subject may be taken up. Members are
allowed a per diem compensation for attendance at general assemblies,
to be paid by the province in which the assembly is held. Finally,
the one brief section dealing specifically with the subject o f disputes
provides simply that whenever circumstances appear to demand it,
at the request o f either party, the governor o f the province, the
mayor o f the commune, or the president o f the section for the indus
try in which* the dispute occurs must convene that section, which is
to endeavor by conciliation to arrange a settlement. I f this effort is
unsuccessful, a report o f the proceedings is to be made public.
The function o f the Belgian councils o f industry and labor is thus
threefold: (1) T o give information or advice to the Government,
(2) to furnish employers and employees the means for conference and
discussion o f common interests before the emergence o f differences,
and (3) to adjust any disputes that may arise. The first o f these is

422

BULLETIN OF THE BUBEAU OF LABOR.

o f no significance in the present connection, although in practice it
has been increasingly the most important one exercised by the
councils. (a)
The second function o f the councils above noted is here significant
as a means o f preventing disputes. In connection with it two points
in the Belgian law are worthy o f notice: First, members o f a section,
representing the employers and laborers o f a given industry in the
locality, must come together at least once in a year; secondly, a very
close government control is exercised over all consultations o f sections
in that all meetings are convened by the provincial government and
the convening order limits the discussion strictly as to time and
subject.
The third function o f the councils holds a quite subordinate place
in the law, though possibly because much was hoped from the second.
The only mode o f dealing with disputes contemplated is conciliation
o f the most inform al character, this to be applied only upon the re
quest o f one o f the parties.
ESTABLISH M ENT OF COUNCILS OF LABOR AND IN D U STR Y.

Turning to the operation o f this law, the reception accorded it
by the two industrial classes was anything but cordial. F or more
than two years the Government waited in vain for communal au
thorities, employers, or working people to take the initiative in
establishing councils. None o f the interested parties having made
any request therefor, the Government finally, in December, 1889,
took matters into its own hands and, after consulting the communal
authorities, issued decrees for 17 councils, and follow ed this up by
others in the same manner in succeeding years. In a few cases
decrees fo r the establishment o f councils have subsequently been re
scinded, but on January 1,1904, decrees for 76 councils were in force,
these having been issued by years as follow s :( &)
« As a system of Government advisory boards the organization of the institu
tion was completed with the establishment, by royal decree o f April 7, 1892, o f
the “ higher council o f labor” ( c o n s e il s u p £ r i e u r d u t r a v a i l ), a central body
composed o f employers, employees, and experts in economic and labor problems,
whose business it is to prepare the inquiries to be made o f the local councils
and to summarize the results o f such inquiries for presentation to the Govern
ment. It may also be noted that an added importance has been given to the
councils o f industry and labor by a requirement that they shall be consulted in
the administration o f the factory laws, viz, those o f August 16, 1887, concern
ing the payment o f wages, of December 22, 1889, concerning the employment o f
women and children, and o f July 2, 1899, concerning the protection of the health
and safety o f employees.
6 Annuaire Statistique de la Belgique, 1903, p. 343.

GOVERNMENT INDUSTRIAL ARBITRATION.

423

DECREES FOR THE ESTABLISHM ENT OF COUNCILS IN BELGIUM ISSUED EACH
YEAR , 1889 TO 1903, AND IN FORCE JANUARY 1, 1904.
Year.
1889...........................................................
1890...........................................................
1891...........................................................
1892...........................................................
1893...........................................................
1894...........................................................
1895.................
1896...........................................................
1897...........................................................

Number.
16
13
16
9
8
7
2

Year.
1898.............................
............
1899.........................................................
1190.........................................................
1901.1......................................................
1902.
1903......................................................
T otal............................................

Number.
1

1
76

The existence o f these authorizing decrees, however, does not
signify the actual existence o f the councils. Thus on January 1,
1903, in the case o f no less than 23 o f the councils, which should
have comprised 70 sections, no sections at all were organized, which
leaves but 53 councils actually in existence on that date. These 53
were to have comprised a total o f 241 sections, according to their
decrees, but as a matter o f fact 78 o f these sections, belonging to 24
councils, were not organized. There were in existence, therefore, at
the beginning o f 1903, 53 councils with 163 sections. Twenty-nine
o f these councils were composed o f but 1 section, 9 had either 2
or 3 sections, 7 had 4 or 5 sections, 5 had 7 to 9 sections, while o f the
other three 1 had 11 sections, 1 had 13, and the council at Brussels
comprised 19 sections. W ithin the territorial jurisdiction o f 41 o f
the established councils, for which alone the figures are reported,
there was at the end o f 1902 about one-eighth o f the population o f
the Kingdom.
According to the report o f the first general investigation made by
the Government through the councils, the failure o f sections to be
come organized after the Government had issued the* necessary
legal authorization for them was due simply to the failure o f em
ployers and work people to elect their members. (®) Considerable
abstention from elections appears also in the case o f the sections
which were organized. Thus in the case o f 29 councils formed dur
ing the years 1889, 1890, and 1891, for 38 sections for which both
classes elected members the proportion o f those entitled to vote who
actually voted was but 34 per cent for employers and 38 per cent for
the work people. But one-half or less o f the employers voted in
the case o f 22 out o f the 38 sections, and in 13 elections only onefourth o f them, or less, voted. F ifty per cent or less o f the work
people voted in 32 cases, and in 17 o f these only one-fourth or less
voted.(b) This abstention from elections o f members, as well as
« Salaires et Budgets Ouvriers en Belgique au Mois d’Avril," 1891, Brussels,
1892, pp. 7, 8.
^ Report by the French bureau o f labor, De la Conciliation et de 1’Arbitrage
dans les Conflits Collectifs entre Patrons et Ouvriers en France et A TJStranger,
1893, p. 447.

424

BULLETIN OF THE BUREAU OF LABOR.

the fact that the Government was forced to inaugurate the system
upon its own initiative, points to a considerable degree o f indifference
toward the councils on the part o f employers and employees. Signs
o f the same lack o f active interest appear also in more recent years.
Thus the report o f a meeting o f the higher council o f labor in 1898
states that to inquiries addressed to the industrial and labor classes
upon the subject o f the revision o f the law relating to the councils
o f labor and industry “ little attention was paid.” (a) The report
o f a meeting o f one section o f the Ghent council, one o f the four
largest councils in the Kingdom , complains in 1899 that 6 out o f the
14 sections were entirely inactive because the employers had neg
lected to appoint any representatives on them .(6) In 1903 elections
fell due for 26 councils, comprising, according to their decrees, 111
sections. The elections resulted, however, in the formation o f only
29 sections (31 had been organized prior to the elections), and the
failure o f the other 82 to organize was due in the case o f 72 to the
failure o f both employers and work people to present candidates,
while for 8 the employers alone, and for 2 the workers alone, pre
sented no candidates. ( c) Judging by the number o f sections remain
ing thus unorganized each year, it would appear that indifference
toward the councils has grown rather than diminished, as follow s:
SECTIONS DECREED AND UNORGANIZED IN BELGIUM AT VARIOUS DATES,
1894 TO 1904.

Date.
January 1,1894.................
January 1,1897.................
January 1,1900.................
January 1,1901.................

Sections
decreed.

Sections
unorgan
ized.

994
809
806
808

100
109
120
145

Date.

Sections
decreed.

January 1,1902................
January 1,1903................
January 1,1904...............

808
311
311

Sections
unorgan
ized.
149
148
150

SETTLEM ENT OF DISPUTES UNDER TH E L A W .

O f the work o f the councils in the prevention and settlement o f
disputes no statistics for the entire period since their establishment
are available; but the follow ing facts are sufficient to give a fair
measure o f what has been accomplished. T o the report o f the first
general investigation made by the Government through the coun
cils, published in 1892 by the minister o f agriculture, industry, and
public works, is appended a note upon the activity o f the councils in
the way o f conciliation. Therein 14 cases are reported in which sec
tions were convened to adjust differences between employers and
employees during the four years 1889 to 1892. In 6 o f these the sec
tions were called upon to deal with existing strikes, and succeeded
a The monthly Revue du Travail o f the Belgian bureau of labor, 1898, p. 613.
» Idem., 1899, p. 1311.
o Revue du Travail, 1904, p. 550.

425

GOVERNMENT INDUSTRIAL ARBITRATION.

in settling one-half o f them, failing in the other 3. In 4 others sec
tions met to consider differences in which no stoppage o f work had
occurred, and brought about an amicable adjustment in all 4. Twice
sections convened without any special dispute to deal with, and
elaborated general rules regulating conditions o f employment for the
industry represented in the section. These rules covered practically
all the relations between employers and employees, and contained pro
visions requiring that every laborer entering the trades must accept
them; so that these two cases practically realized the law’s aim to
prevent disputes through the formulation o f general agreements in
the councils. The other 2 o f the 14 cases were meetings by sections
representing the tobacco industry to protest against the employment
o f convict labor in cigar making, which had been the subject o f
differences between employers and work people. A protest addressed
to the minister o f justice led to the suppression by him o f the prac
tice complained of. In these 14 cases meetings were held at the
instance o f laborers five times, employers once, both parties once, the
provincial governor or council three times, while one was the regular
annual meeting required by law, and in three the initiative is not
definitely indicated.
A special report on strikes recently published by the Belgian bureau
o f labor yields the follow ing statistics as to the work o f the councils
for the years 1896 to 1900.
TOTAL STRIKES AND NUMBER SETTLED BY COUNCILS, BELGIUM, 1896 TO 1900.
[From Statistique des Graves en Belgique, 1896-1900, Brussels, 1903, pp. xxx, 185.]
Year.

Total
strikes.

Settled by
councils.

1896..............................................................................................................................
1897..............................................................................................................................
1898..............................................................................................................................
1899..............................................................................................................................
1900..............................................................................................................................

189
130
91
104
146

5
4
1

T o ta l..............................................................................................................

610

4
2

This shows that the councils have settled less than 3 per cent o f the
strikes in the Kingdom during the five years. The work o f the
councils has not been confined to strikes, however, as shown by the
follow ing figures, which also indicate the relative degree o f success
attained in interventions:

426

BULLETIN OF THE BUREAU OF LABOR.

INTERVENTIONS BY COUNCILS IN STRIKES AND OTHER DISPUTES AND SET
TLEM ENTS EFFECTED, BELGIUM, 1896 TO 1903.
I Compiled from periodical accounts of conciliation and arbitration by the councils or
others, published by the bureau of labor in its monthly Revue du Travail, except for
1902 and 1903, for which annual reviews of work by the councils given each year since
1901 in the June or July numbers of the Revue have been utilized.]
Interventions by councils—
Year.

In
In other
strikes. disputes.

mn+„i
AotaL

Settlements effected—
In
In other
strikes. disputes.

2
2

6
6

1896—
1897—
1898—
1899—
1900— 1901—
1902—
1903(6).

Total.

5
2

(a)

(«)

Total.

8
4

(«)
(a)

(«)

(a)

(«)

• Not separately reported for 1902.
b That there were no interventions in 1903 is not specifically stated in the review
of that year’s work (cf. Revue du Travail, 1904, pp. 550 et seq.), but is assumed from
the absence of any notice of such intervention, the review being made up in precisely the
same form as in 1902 and 1903.

The table indicates that in general the councils have succeeded not
quite as often as they have failed. They appear to have been espe
cially successful when intervention occurred before the strike stage
had been reached, while in strikes success attended their efforts in
one-third o f the cases.
Action by the councils in the great coal strike o f 1899, which
involved between 50,000 and 60,000 miners, is not included in the
second table above, but should be mentioned. The various sections for
that industry were twice summoned by royal decree to discuss the
subject o f wages in the coal mines, which was the point in dispute.
The thorough examination o f the question thus made contributed in
no small degree, apparently, to the final settlement, though the latter
was not prim arily the work o f the councils.
As an agency for preventing disputes by furnishing ready means
for negotiating terms o f employment it appears that the Belgian
councils o f industry and labor have been o f very little service to judge
by the accounts o f their work for 1901,1902, and 1903, as given in the
Revue du Travail o f the Belgian bureau o f labor. (a) Meetings o f
the councils called at the request o f employers or employees very
rarely occur, only three such (in 1901) being reported in the three
years. In two o f these cases sections drew up a minimum scale o f
wages to be paid on work done for the Government, while in the third
a section was called upon to consider four questions, namely, an
increase o f 50 per cent in wages for work on the seventh day in the
week, furnishing o f tools by the employer, establishment o f the first
day o f May as a holiday, and an eight-hour workday. The result o f
« Revue du Travail, 1902, p. 603; 1903, p. 707; 1904, p. 550.

GOVERNMENT INDUSTRIAL ARBITRATION.

427

the meeting was that the question o f a wage increase was laid aside
by common consent. The employers promised to take experimental
steps in the direction o f supplying tools, but on the question o f May
Day as a holiday and eight hours o f work the section could not reach
an agreement.
The regular annual meetings o f sections summoned by the pro
vincial authorities according to law, which are reported in consider
able numbers for the three years, were devoted chiefly to the consider
ation o f questions o f Government industrial policy or general prob
lems o f industrial betterment, such, for example, as insurance against
involuntary idleness, establishment o f baths and lavatories in mines,
etc. In a number o f cases sections were called upon at these
annual meetings to fix minimum wage scales for Government work,
but not always with favorable results. Thus, in 1901, 4 sections
were asked to establish such scales, but only 2 could come to an
agreement as to the rates to be included. In 1902 out o f 23 sections
asked for similar service in only 4 could the employers’ and the
workers’ representatives reach an agreement as to the rates. No
work o f this kind is reported for 1903. Outside o f fixing wages for
public work, only 3 instances are reported for the three years in
which terms o f employment were up for determination in annual
meetings. Once, in 1901, a section for mining took up the subjects
o f the furnishing o f tools by the employers, May Day holiday, baths
in the mines, and biweekly payment o f wages, but on the first two
points no agreement could be reached, while on the last two the
employers promised to do their best to meet the desires o f the work
men. Sim ilarly in a second case (in 1902) another mining section
had before it four questions, including the suppression o f fines and an
increase o f wages, and could agree on but two, the employers insisting
that fines should be continued and the workers standing out for their
abolition, while on the wages question the employers took the posi
tion that the section had no right to discuss the subject at all. The
third case above referred to, in which a section in annual meeting
considered terms o f employment, was in 1902, and in this instance
positive service toward industrial peace seems to have been rendered
in that the question o f wages in the industry was discussed and the
conclusion reached that existing rates were satisfactory to both
employers and work people.
PROPOSED REVISION OF TH E L A W .

It remains to notice briefly a revision o f the law o f 1887 recom
mended by the higher council o f labor in 1899. Although these
recommendations have not as yet resulted in any amendment o f the
law, they are o f some significance in view o f the careful study upon

428

BULLETIN OF THE BUREAU OF LABOR.

which they were based and as indicating the changes in the system
which, in the opinion o f the higher council, were needed. In Novem
ber, 1897, that body appointed a special commission to examine and
report upon the subject o f revision. This commission, after pro
longed investigation by means o f inquiries addressed to the various
councils and otherwise, presented a preliminary draft for a bill to
the council, where it was gone over in detail and finally adopted in
June, 1899. This bill contemplates a much more detailed regulation
o f the system than the old law, especially in relation to elections,
qualifications o f members and voters, and the organization o f the
councils. It is worthy o f note in this connection that it is proposed,
evidently as a cure for the abstention o f voters from elections above
noted, to make voting compulsory and allow working people free
transportation by rail to the place o f election.
The general functions o f councils were to be in nowise altered by
the revision. As regards conciliation and arbitration, however, sev
eral additions were proposed, the most important being (1) provision
for action by councils when disputes are threatened as well as when
they have actually arisen, which was the reading o f the old law ; (2)
provision that in connection with conciliation councils are not only
to be summoned at the request o f parties, but may be summoned by
the governor, burgomaster, or president, independently o f such
request, and that when a council has been summoned for conciliation,
pending the full meeting, its “ bureau ” or executive committee is to
endeavor to adjust or prevent the dispute; (8) provision for arbi
tration, entirely voluntary in character, either before an arbitrator
named by the section interested or before a commissioner named by
the minister o f industry and labor upon application from the section;
(4 ) provision that where a dispute affects a number o f establishments
in the same industry but affiliated with different councils the minister
o f industry and labor may summon them all to act in the case, and
(5) provision that where c^sputes arise outside the jurisdiction o f
councils the governor o f the province, or the burgomaster, shall make
every possible effort to adjust the difference.
TH E N ETH ERLAN D S.
L A W OF M A Y 2, 1897.

The first move for legislation concerning the settlement o f labor
disputes in the Netherlands was made in 1892 by the introduction
into the lower chamber o f the States-General o f two bills o f similar
tenor, the one to establish “ chambers o f labor and industry,” the
other to establish, under a shorter title, “ chambers o f labor.” The
parliamentary consideration o f these bills led their authors to pre
sent a combined measure just at the close o f 1892. This having

GOVERNMENT INDUSTRIAL ARBITRATION.

429

failed o f passage the same authors again presented separate measures
in 1893 and 1894, but with no better success. The introduction and
discussion o f these projects, however, had the effect o f inciting the
Government to the proposal o f a law for chambers o f labor in Octo
ber, 1895. This accorded with the recommendation o f a royal com
mission on labor, appointed in 1890, which in its report in 1894 had
favored the establishment o f such bodies. This Government bill, as
the result o f discussion in the session to which it was introduced, was
presented in modified form at the next session (1896-97), where it
resulted in the law o f May 2, 1897, (a) which is still in force and
unamended.
GENERAL PROVISIONS OF TH E L A W .

The law provides that a chamber o f labor may be established by
royal decree upon recommendation o f the minister o f waterways,
commerce, and industry, either for one commune or for several com
munes combined, and for a single or several industries, and cham
bers may be abolished in the same way. The mission o f such a cham
ber is fou rfold : (1) To collect information concerning labor condi
tions; (2 ) to give advice to Government authorities, provincial or
communal, concerning questions o f interest to labor either upon
request or o f their own m otion; (3 ) at the request o f interested
parties to advise as to proposed agreements or regulations, and (4) to
prevent or settle labor disputes.
A chamber is composed o f equal numbers o f employers and
employees, each class electing its own representatives for terms o f
five years. The mode o f electing members, qualifications o f members
and electors, etc., are prescribed in detail, elections being under the
direct supervision o f the communal authorities.
Each chamber chooses its own presidents and secretary. Two
presidents are elected, the one by the members representing employ
ers and the other by those representing laborers, and the two alternate
in presiding for periods o f six months. The “ bureau ” o f the cham
ber consists o f a president and two members, one each chosen by and
from among the two classes o f members. Each chamber makes its
own rules o f procedure subject to approval by the Government.
Chambers must meet at least four times a year, and at such other
times as the president deems advantageous, or whenever the two mem
bers o f the bureau or at least two-thirds o f the members o f the entire
chamber request it in writing. One-half the members o f each class
must be present to constitute a quorum, and for any vote an equal
number o f each class must be voting. The bureau meets as often as
the president considers it necessary, or whenever one o f the members
« A French translation o f this law may be found in the Annuaire de la Legis
lation du Travail of the Belgian bureau o f labor, 1897, p. 289.

430

BULLETIN OF THE BUBEAU OF LABOB.

makes written request therefor. Decisions in either body are made by
m ajority vote with deciding vote by the president in case o f a tie,
but when a chamber is making recommendations to the Government
the minority have the right to express a separate opinion. Meetings
are held with closed doors and the chamber may preserve secrecy in
all its proceedings. Each chamber must make an annual report to
the Government, which is to be transmitted in whole or in part to the
States-General. Aside from this report, information is to be fur
nished to the Government under regulations fixed by administrative
decree, such information to be published periodically if desirable.
The communes must provide places o f meeting and bear the costs o f
elections, while the pay o f members for attendance at sessions and
traveling expenses, together with the secretary’s expenses, are pro
vided by the State.
PBOVISIONS FOB INTERVENTION IN DISPUTES.

So much for the general features o f the system. It remains to notice
particularly that part having to do with labor disputes. Chapter V
o f the law, which is devoted to this subject, provides that whenever
a dispute occurs or is threatened in an industry represented in a
chamber, either party may call for the intervention o f a council o f
conciliation by written request to the chamber setting forth the cause
o f the dispute. When the parties belong to an industry not repre
sented on a council, they may make the application to any chamber in
the same or a neighboring commune. But request by one or both the
parties is not a necessity for intervention by a council, as this may
occur at the instance o f the burgomaster o f a commune or the royal
commissioner o f a Province.
Upon receipt o f any such application the bureau o f a chamber, if
it considers the difference to be o f a simple character, shall endeavor
to arrange a settlement. Otherwise, or if the bureau’s efforts prove
fruitless, the matter is to be immediately referred to the fu ll cham
ber. I f the latter considers that intervention w ill prevent or settle
the controversy it is to name a conciliation council consisting o f a
president chosen either from or outside o f the chamber and members
taken in equal numbers from the employers’ and the laborers’ repre
sentatives in the chamber, the secretary o f the latter acting as secretary
o f the council. It is the duty o f the president to use his best endeavors
to persuade the parties not to suspend work during the negotiations
without previous reference o f the matter to him. The council o f
conciliation shall meet as often as the president deems it necessary,
and upon the conclusion o f its investigations shall render a written
opinion upon the dispute and the proper means o f adjusting it,
which is to be transmitted to the parties, and may be published either

GOVERNMENT INDUSTRIAL ARBITRATION.

431

in whole or in part. In the deliberations o f the council the president
has a deciding vote, except as concerns the contents o f this report,
in which the minority, if they so desire, have a right to express their
opinion. Except as contained in the report the proceedings o f the
council are not to be made public. There is no provision as to arbi
tration in the law beyond the simple declaration that the parties to
a dispute may submit it to arbitration if they choose, and that women
may act as arbitrators.
In general plan and purpose these Dutch 46chambers o f labor ”
are very similar to the Belgian 44councils o f industry and labor.”
Indeed, the latter would seem to have served as a model for the
Dutch legislation. The most noteworthy points o f difference be
tween the two systems are (1) the single organization o f the Dutch
chamber in place o f the Belgian council subdivided into sections for
different industries; (2) the provision for the 44bureau ” or executive
committee o f the chamber in the Netherlands; (3) the greater free
dom allowed the Dutch chambers when acting in the capacity o f
standing committees o f employers and employees or o f Government
advisers, there being no Government supervision over meetings as in
Belgium ; (4) the authority given local government authorities in
the Netherlands to initiate conciliation proceedings independently,
whereas Belgium provides for reference only upon the request o f one
or both o f the parties; (5) thb more elaborate procedure in the
Netherlands, including inform al conciliation efforts in minor cases
by the executive committee, decision to refer by the full chamber, and
the form al conciliation by a special committee or council named for
the purpose, instead o f the one procedure by the section in Belgium.
ESTABLISH M ENT OF CHAMBERS OF LABOR.

The reports o f the chambers, as published by the minister o f water
ways, commerce, and industry,(a) and the reports o f strikes and lock
outs published by the central bureau o f statistics o f the Netherlands
in its Journal, ( 6) show the follow ing facts as to the operation o f the
Dutch system, so far as concerns the settlement o f collective disputes:
ITp to January 1, 1904, royal decrees o f establishment had been
issued for 99 chambers. Nine o f these had been abolished before
1904, leaving a total o f 90 in existence at the beginning o f that year.
The follow ing table shows the number o f chambers decreed, abol
ished, and in existence on January 1 for each year since the law went
into effect:
<*Verslagen der Kamers van Arbeid over 1899; idem., 1900, 1901, 1902, 1903.
ft Tijdschrift van het Centraal Bureau voor de Statistiek.

432

BULLETIN OF THE BUREAU OF LABOR.

CHAMBERS OF LABOR DECREED AND ABOLISHED, AND NUMBER IN EXISTENCE
IN THE NETHERLANDS, ON JANUARY 1 OF EACH YEAR, 1898 TO 1904.
Number of chambers of
labor—
Year.
Decreed.

1898..........................
1899.......... ...............
1900
1901..........................
190*2..........................

80
80
19
7
10

Abol
ished.

2
2
5

Number of chambers of
labor—
Year.

In exist
ence Jan
uary 1.

80
60
77
82

1908.........................
1904.........................

Total............

In exist
ence Jan
uary 1.

Abol
ished.

Decreed.

87
90
9

The system was extended quite rapidly down to 1901, but since
then has grown much more slowly.
The 90 chambers in existence on January 1, 1904, were in 38 differ
ent localities, namely: Amsterdam, with 11 for as many different
industries; Rotterdam, with 9; Utrecht, with 6; Haarlem and The
Hague, with 5 each; 6 other localities with 3 chambers in each;
9 localities with 2 chambers each, and 18 places with a single chamber
in each.
SETTLEM ENT OF DISPUTES UNDER TH E L A W .

In their work under the law’s provision for intervention in disputes
between employer and employed, the chambers have dealt with a
large number o f individual disputes, that is, controversies over the
rights o f the individual worker and his employer under existing
terms o f employment. This work o f the chambers corresponds to
that o f the industrial courts found in France, Germany, and other
European countries, and need not be considered here, although it has
constituted in practice the major part o f their work in the field
o f industrial disputes.
An examination o f the reports o f the individual chambers and the
reports on strikes and lockouts published by the central bureau o f
statistics (a) yields information in considerable detail concerning in
tervention by chambers in strikes and lockouts. A summary o f all
such cases found is as follow s:
. SUMMARY OF INTERVENTIONS BY CHAMBERS OF LABOR IN STRIKES AND
LOCKOUTS IN THE NETHERLANDS, 1899 TO 1904.
1899.
Total chambers in existence (Jan. 1 )......................
N umber of chambers which intervened or offered
to intervene in strikes and lockouts.....................
Total interventions, actual or proposed.................
Total strikes and lockouts in the Kingdom............
Interventions per 100 disputes....................................

1900.

1901.

1903.

1904.

3
8

7
7

8
9
122
7.4

16
19
142
13.4

13
18
163
11.0

12
13
102
12.7

(*)
(»)

(*)
w

• Tijdschrift van het Centraal Bureau voor de Statistiek.

1902.

* Not reported.

GOVERNMENT INDUSTRIAL ARBITRATION.

433

W ith respect to any comparison between years it should be ex
plained at once that the figures for 1899 and 1900 were compiled from
the reports o f the chambers alone, no reports o f strikes and lockouts
having been published for years prior to 1901. For 1901, 1902, and
1903 both the reports o f the chambers and reports on strikes and
lockouts were available, while for 1904 the strike reports alone were
at hand, as the annual reports o f the chambers had not been pub
lished at the time this chapter was completed. As the two sources
have been found to be slightly supplementary in respect o f total num
ber o f interventions, the figures here given for 1904 are not exactly
comparable with those o f 1901, 1902, and 1903. It would appear,
however, on the basis o f the differences between reports discovered in
the earlier years that the total actual or proposed interventions in
1904 at the most did not exceed those in 1902 or 1903.
During the four years 1901 to 1904 interventions o f chambers were
proposed in 59 out o f a total o f 529 strikes and lockouts, or in a little
more than one in 10 cases. The total 69 proposed interventions for
the entire six years were distributed among 40 different chambers, 24
o f which had but one case, 9 had two apiece, 4 had three cases each,
while 1 chamber had intervened in four cases, 1 in five, and another in
six instances. It w ill be seen that since 1901 more than half the
chambers have not intervened in strikes or lockouts at all, and that
in any one year four-fifths o f all the chambers, or more, have not
intervened in such disputes. That this nonintervention was by no
means all due to the absence o f strikes or lockouts within the juris
diction o f the chambers may be inferred from the fact that, according
to the report on strikes and lockouts for 1903, there were 81 strikes
during that year in industries under the jurisdiction o f chambers o f
labor, whereas in that year there were but 18 proposed interventions
by 13 chambers.
As a rule intervention has been proposed or accomplished in the
case o f strikes and lockouts only after the stoppage o f work, that
having been apparently the case in all but 8 o f the 69 interventions
above noted. In those 8 cases (one each in 1901 and 1902 and
three each in 1903 and 1904) a strike or lockout occurred* after
action had been taken by the chambers, although in two the chambers
finally settled the dispute.
It appears from the accounts as given in the reports that in twothirds o f the cases (45 out o f 69) the initiative fo r action by the
chambers was taken by one or other o f the parties, there being twice
as many cases o f initiative by the workers alone (30) as by employers
only (14), while in one instance both parties applied to a chamber.
In 23 cases the chambers themselves appear to have taken the first
steps. Only one case is reported in which the mayor o f a commune
50—No. 60—05 m ------4

434

BULLETIN OF THE BUREAU OF LABOR.

called upon the chamber to intervene.
initiative are as follow s:

By years these figures as to

IN ITIA TIV E OF INTERVENTION BY CHAMBERS OF LABOR IN STRIKES AND
LOCKOUTS IN THE NETHERLANDS, 1899 TO 1904.

The follow ing table gives a summary o f the results o f the above
actual or proposed interventions by chambers in strikes or lockouts,
these figures, like those above, being obtained by an analysis o f the
accounts o f the individual cases as given in the reports.
PROPOSED AND ACTUAL INTERVENTIONS BY CHAMBERS OF LABOR IN STRIKES
AND LOCKOUTS IN THE NETHERLANDS, BY RESULTS, 1899 TO 1904.
Proposed inter
ven tion s n o t
carried out ow
ing to—

Year.

Actual interventions.

Total
Refusal Settle number.
Settle
by par ment by
ment.
ties.
parties.
1899...............................................................
1900............ .................................................
1901...............................................................
1902...............................................................
1903..............................................................
1904...............................................................
T otal.................................................
a Not reported.

i
l
l ............ 2
4
2
2
9

Settlements
per 100
strikes
and lock
outs.
Failure.

Resulting in—

3
6
8
16
12
11

3
4
8
9
8
5

(a)
(a)

5
7
4
6

2.5
6.3
4.9
4.9

&6.G

6 Four years.

In 7 o f the 9 cases in which proceedings were blocked at the outset
by refusal o f the parties the offer o f intervention appears to have
been made to both, neither accepting. In the other instances offer to,
and rejection by, the employer only is mentioned.
In 1 o f the 4 cases settled by the parties the chamber had offered its
services to the employer, who agreed that if the strike did not soon
end, as he anticipated, he would call upon the chamber to act, but the
dispute ended without need for the chamber’s services. In the other
3 cases application for intervention had been made by one o f the par
ties. In one o f these the chamber’s executive committee was consid
ering the case when a settlement was reached independently by the
parties; in another a conciliation council had been appointed by the

GOVERNMENT INDUSTRIAL ARBITRATION.

435

chamber, but before it could act the parties had reached an agree
ment; while in the third case the chamber declined to intervene, on
the ground that the employer, who had applied for the intervention,
had already agreed to the demands o f his employees, and all that
remained was for him to carry out his expressed intention.
In 13 o f the 32 settlements the proceedings were conducted either by
the executive committee (bureau) or other representative (an offi
cer, a member, or a special committee named for the case) o f the
chamber; in 10 instances the chamber itself conducted the case, while
in 9 a conciliation council was appointed as specially provided in the
law. In 25 o f the 32 settlements the procedure may be said to have
been conciliation alone, the parties being brought to an agreement by
conference or through the chamber as intermediary. O f the remain
ing cases, in 4 a conciliation council rendered a form al decision which
both the parties accepted—twice in accordance with agreement to
accept, and in one o f these also with resumption o f work pending
such decision. In 2 cases decisions were rendered by the chambers
themselves, the parties having agreed beforehand to accept them; in
one o f these cases also having resumed work pending the decision,
while in the other case the chamber persuaded the parties to submit
the case to arbitration by a board o f seven persons, two o f whom only
were members o f the chamber, the others being outsiders, all, however,
chosen by the chamber.
O f the 24 disputes in which the chambers’ intervention failed to
bring about a settlement, in 4 the action taken was by the executive
committee or a representative o f the chamber, in 9 the chamber itself
conducted the proceedings, while for 11 resort was had to a concilia
tion council. A comparison o f these figures as to mode o f procedure
with those for the settlements as above gives, o f course, no indication
o f the relative efficiency o f procedure by a chamber or its represent
ative and o f that by a conciliation council. The relatively greater
number o f failures by conciliation councils reflects rather the fact that
as intended by the law itself these councils are usually a second
resort for more serious disputes, and frequently are appointed only
after preliminary effort by the chamber’s executive committee or
other representative has proved insufficient.
A ll but two o f the failures may be regarded as failures o f concilia
tion. In one o f these two cases the failure o f procedure by a concilia
tion council was due to the fact that none o f the members o f the/
chamber from the employing class would serve on the council. The
other case was the one in which both parties had applied to the
chamber asking it to render a decision as to wages, which was the
question at issue, the parties having agreed to accept such decision.
The projected arbitration failed, however, owing to a disagreement

436

BULLETIN OE THE BUREAU OF LABOR.

in the chamber, two members favoring one rate, a third another* and
the fourth member still another, and no compromise decision could be
reached. In the cases in which conciliation efforts by a conciliation
council failed it appears that as a rule the decision or final opinion
o f the conciliation council on the dispute and the best means o f
adjusting it, which the law prescribes, was transmitted only to the
chamber and the parties. In three such cases, however, the reports
state that the council’s findings were made public, without, however,
causing a settlement o f the controversy.
As was indicated in the analysis o f the law governing the chambers
o f labor, their function is not only the settlement but the prevention
o f industrial disputes by furnishing a convenient agency for the
negotiation o f terms o f employment. An examination o f their re
ports shows that the Dutch chambers have accomplished not a little
in the last-mentioned direction. Indeed, their activity in this field
appears to have considerably exceeded that in the settlement o f strikes
and lockouts above considered. A count o f all cases o f collective
bargaining between employer and employed in which the chambers
appear to have assisted directly or indirectly, or endeavored to assist,
shows the follow ing totals, by years, divided as to whether the nego
tiations concerned work done by or for the Government, State or
local, or concerned private undertakings.
NEGOTIATIONS CONCERNING EMPLOYMENT IN W HICH CHAMBERS OF LABOR
ASSISTED IN THE NETHERLANDS, :1899 TO 1903.
Negotiations concerning employ
ment—
Year.

On Gov In private
ernment undertak
work.
ings.

Total.

1899..........................................................................................................
1900..........................................................................................................
1901...........................................................................................................
1902..........................................................................................................
1908..........................................................................................................

6
8
8
12
28

7
87
45
46
45

13
45
53
58
73

Total................................................................................_...........

180

242

These figures include all cases in which the chambers assisted in
any way or were called upon to assist in determining the conditions
o f employment for a body o f workers collectively—that is, for those
in a given establishment, trade, or class. The cases included vary all
the way from intervention with a view to settling well-developed
differences over the terms o f employment or the amicable negotiation
o f general agreements for an entire trade to simply furnishing
advice or inform ation upon the request o f one party. Taking these
figures as a very rough measure o f the extent o f the work done by
the chambers in the way o f preventing industrial disputes, it would

GOVERNMENT INDUSTRIAL ARBITRATION.

437

appear that such work has increased down to 1903 at least, but the
increase o f 1902 and 1903 was almost entirely in the way o f assistance
in determining conditions on Government work. This latter class
o f cases, it may be observed, has much less significance with respect
to the general problem o f preventing industrial disputes than the
cases o f negotiation between employers and employed in other under
takings ; and the chambers, being created by the Government for the
especial purpose o f furnishing the latter with information concerning
labor and industry, would be the natural agency to assist in deter
mining conditions o f employment for Government undertakings or
Government contract work. It is not surprising to find, therefore,
that in some 17 o f the 40 negotiations touching employment on
Government work during 1902 and 1903 the chambers formulated
schedules o f wages or hours o f labor for such work.
O f the degree o f success achieved in these cases o f collective bar
gaining which came before the chambers it is impossible to present
even a rough measure, either because o f the nature o f the cases or from
lack o f sufficient information in the reports as to the outcome o f the
chambers’ efforts. It appears, however, that the work in this field
has been done chiefly by the chambers themselves, their executive
committees, or one or more members as their representatives, since
in but 22 (one only in negotiations touching Government work) o f
the total 242 cases noted was resort had to a conciliation council.
Am ong the occasional comments concerning their work by the
chambers themselves, which are to be found in the reports, none is
more significant in the present connection than one found repeatedly,
in different years and by different chambers, to the effect that the
chambers found a large degree o f indifference or even pronounced
opposition on the part o f the employers and work people within their
jurisdiction. I f the number o f employers or workers who take
part in the elections o f members o f chambers may be taken as an indi
cation o f their attitude, it would appear that the serious difficulty in
the way o f successful work, especially in the field o f conciliation and
arbitration, suggested by the above comments, is a very real one for
the chambers generally. For it appears that, as a rule, but a small
proportion o f the employers and work people have enough active
interest in the chambers to vote for members o f them, as shown by
the follow ing table, which has been made up from the numbers o f
electors and voters as given in the reports:

438

BULLETIN OF THE BUREAU OF LABOR.

PERCENTAGE OF PERSONS ENTITLED TO VOTE WHO VOTED IN ELECTION OF
MEMBERS OF CHAMBERS OF LABOR IN THE NETHERLANDS, 1898 TO 1903.
Percent Number of elections in
which of those entitled to
Cham
age of
vote there voted—
bers
those enholding titedto
vote
Oneelec
Less
One-half fourth
to than onetions.
who
voted. or more. one-half. fourth.

Year.

Em ylojers’ elections:
1 8 9 9 . ..............................................................
1900..........................................................................
1901..........................................................................
1909...........................................................................
1908..........................................................................

5
33
30
90
19
99

39.4
95.5
16.7
18.3
16.6
90.1

1
5
1
5

Total....................................................................

199

90.7

W orkers’ elections:
1898..........................................................................
1899.:.......................................................................
1900...........................................................................
1901......... .................................................................
1909..........................................................................
1903......... .'...............................................................

5
33
96
18
10
19

37.9
39.5
96.0
31.0
15.1
90.5

111

97.5

Total...................................................

......

3
11
14
5
3
6

1
17
15
10
9
13

9
5

4
19
7
9
1
5

1
11
19
7
7
9

10
7
2

G ERM AN Y.
L A W OF JULY 2 9 , 1890.

The first German law dealing with arbitration or conciliation for
collective disputes was that o f July 29, 1890, regulating the indus
trial courts (Gewerbegerichte). These courts are o f the same type
as the French councils o f prudhommes, and are designed for indi
vidual disputes. They had existed in various parts o f Germany
since the first quarter o f the nineteenth century, the oldest ones being
in the Rhine Province and o f French origin. Previous to 1869, three
States—Prussia, Saxony, and Saxe-Weimar—had passed laws pro
viding for such tribunals, and the Industrial Code o f 1869 adopted
by the North German Union contained a brief section authorizing
local authorities to establish them, specifying only that there must
always be equal representation o f employers and employees on them,
and this section was retained in the amended code o f July 17, 1878.
Being left thus to the regulation o f various laws and governments,
the result was great diversity o f form and procedure in the courts,
and it was dissatisfaction therewith which, after numerous efforts
beginning with the early seventies, finally led to the law o f 1890,
which created no new institution but simply specified uniform regu
lations for the courts established by the various local authorities.
None o f the State laws nor the imperial code before 1890 had con
templated other than individual disputes. Nevertheless three courts
in existence before that year—in Leipzig, Frankfort, and Berlin, all

GOVERNMENT INDUSTRIAL ARBITRATION.

439

three being o f one model—were empowered by the local acts estab
lishing them to intervene under certain conditions in cases o f strike
or lockout; and although it does not appear that any o f the three
had ever made use o f that power, (a) the law o f 1890, which follow s
in many parts the local statute for the Frankfort court, copied there
from the provision for intervention in cases o f collective disputes
which became Part I I I o f the new law.
The provisions o f this law aside from Part I I I need not be reviewed
here. O f the general character o f the courts suffice it to say that they
must be composed o f equal numbers o f representatives chosen by
employers and employees, respectively, with a president and deputy
appointed by the local authorities; that their prime function is the
settlement o f individual disputes upon complaint by either party,
by conciliation if possible, otherwise by compulsory awards; and that
their jurisdiction extends to factory employees only.
PROVISIONS OF TH E LA W RELATIVE TO COLLECTIVE DISPUTES.

Part I I I ( *6) o f the law o f 1890 specified that courts may act as
conciliation bureaus in case o f disputes concerning “ the terms o f
continuation or renewal o f the labor contract ” (art. 61), but only on
condition that both parties request such action and, where they num
ber more than three, appoint delegates to the hearing. Such dele
gates must be 25 years o f age and in the enjoyment o f full legal
rights. The conciliation bureau consists o f the president o f the court
and at least four members, two employers and two workingmen, but
there may be added, and must be when the delegates o f the two par
ties so request, representatives in equal numbers named by the em
ployers and employees. Both these representatives and the members
o f the bureau must not be concerned in the dispute in question.
The first step in the procedure is a determination o f the facts by
hearing o f the delegates from each side and the examination o f w it
nesses, the bureau having power to summon and examine witnesses,
though no penalty is provided to compel their presence. Follow ing
this each side must formulate in conference its opinion upon the alle
gations made by the other party and the witnesses, and then an effort
at conciliation is to be made. I f this succeeds, the agreement signed
by the bureau and the delegates is to be published. I f not, the court
®Report o f French bureau o f labor, De la Conciliation et de rArbitrage dans
les Conflits Collectifs entre Patrons et Ouvriers en France et a l’lStranger, 1893,
p. 476.
&Reichsgesetzblatt, 1890, No. 24. A French translation o f Title III is given in
De la Conciliation et de 1’Arbitrage, etc., p. 477. Amendments o f the law in 1901
are noted later.

440

BULLETIN OF THE BUBEAU OF LABOR.

is to render a decision by m ajority vote, though in case o f a tie the
president may decline to vote and declare that no decision could be
rendered. When a decision has been given, the delegates must de
clare within a specified time either acceptance or rejection thereof,
failure to make declaration to be taken as refusal. A t the end o f the
time allowed the bureau is to publish the decision. It w ill be seen
that everything in the proceedings is absolutely voluntary for the
parties in dispute.
SETTLEM ENT OF DISPUTES UNDER TH E L A W

1890.

Inquiring as to the practical results accomplished by the German
industrial courts under the above provisions, which went into effect
A pril 1, 1891, the follow ing table presents a* general view o f such
work for the eight years, 1893 to 1900.
STATISTICS OF INTERVENTION BY INDUSTRIAL COURTS IN COLLECTIVE
DISPUTES, GERMANY, 1893 TO 1900.
[This table is made up from figures given in Das Gewerbegericht, a monthly periodical
published by the Verband Deutscher Gewerbegerichte. That association was formed in
1893, its aim being the interchange of information concerning the work of courts,
important decisions, etc. The above figures, except for 1900 and for the number of
courts in existence, were quoted by Das Gewerbegericht as those presented by a Govern
ment official to a parliamentary committee in 1901, when an amendment to the law of
1890 was under consideration. The same figures for 1893 to 1896 had been laid before
the Reichstag in 1 89 7 -9 8.]
Settle
Courts in Applica ments
ef Deci
exist tions for fected
sions ren
ence Jan inter
by
con
uary 1. vention. ciliation. dered.

Year.

1893..............................................................
1894...............................................................
1895..............................................................
1896...............................................................
1897...............................................................
1898..............................................................
1899..............................................................
1900...............................................................

154
217
«272
275
285
<>b)

(&)
c316

Total.................................................
• In August.

6 Not reported.

Deci
sions ac Total
cepted cases set
byliotb
tled.
parties.

5
16
19
44
27
30
50
80

3
7
13
18
12
9
16
28

3
8
11
4
6
5
9

2
2
1
2
5

3
8
13
20
14
10
18
33

271

106

119

c On December 31.

Only those disputes are here included in which form al application
came to the courts. Besides such it appears that many cases have
occurred in which presidents o f courts intervened inform ally without
any request from the parties. How much there has been o f this inter
vention, which is not provided for in the law, can not be estimated,
but it is stated that in 1896, for example, there were no less than 23
such instances, equal to one-half the number o f form al actions in that
year.(a)
As a supplement to the above table the follow ing figures, from the
annual reports on strikes and lockouts, published by the imperial
statistical bureau, are given:
« Das Gewerbegericht, vol. 6 (1901), p. 187.

441

GOVERNMENT INDUSTRIAL ARBITRATION.
TOTAL

STRIKES

AND

LOCKOUTS AND NUMBER SETTLED
COURTS, GERMANY, 1899 TO 1901.
1899.

Total strikes and lockouts.......................................................
Number settled by industrial courts under law of 1890 («).

1900.

1,364
55

1,500
45

INDUSTRIAL

1901.
1,109
39

Total.
3,973
139

* Apparently these figures include some cases settled informally by presidents, being larger
than the figures above. Or they may include settlements by guild courts (In n u n g sc h ied s
g e r i c h t e ) , which are not represented in the first table.

Compared with the number o f courts in existence and with the
number o f disputes occurring, the foregoing tables show but limited
activity by the industrial courts in the field o f collective disputes.
Nevertheless, there has been an increasing amount o f such action,
as indicated by the first table, the second being less trustworthy for
comparison on this point, although it would seem to show that inter
ventions in strikes and lockouts have not increased during the last
three years.
The proportion o f successful to unsuccessful intervention is not
indicated in the above table, for the reason that the difference between
the 119 settlements and the 271 applications does not represent the
number o f failures, but includes other cases. Just what are included
therein does not appear in the published returns, nor is the number
o f definite failures o f conciliation ascertainable, except for 1900.
The record for that year (a) gives 9 as the number o f cases in which
conciliation failed and no decision was rendered, leaving 34 classed
as “ other cases,” including apparently applications by one side only,
disputes withdrawn by the parties, etc.
It w ill be seen that settlements were effected almost entirely by
conciliation and that two-thirds o f the form al decisions rendered
after conciliation had failed were rejected by one or other o f the
parties. W hile both parties have frequently rejected the decisions,
it appears that work people have been, at least in recent years, much
more favorable to action by the courts than employers, as a brief
comment in Das Gewerbegericht ( &) on the work o f the courts in
collective disputes during 1901 states that applications came chiefly
from employees, the employers frequently declining negotiations.
The same note remarks also that 1901 showed an increasing inter
vention inform ally by courts without any application from parties,
and that such independent initiative was increasingly successful.
The records o f individual courts vary greatly. Thus the Dresden
court during the ten years 1892 to 1901 acted as conciliation board
in collective disputes but five times— once in 1896, twice in 1899, and
once in 1900 and in 1901— although in the three years 1899 to 1901
o Das Gewerbegericht, vol. 6, p. 274.

* Vol. 7, p. 164.

442

BULLETIN OF THE BUREAU OF LABOR.

alone, 61 strikes or lockouts occurred in the city .(a) Similarly in
the Kingdom o f Wurttemberg from 1892 to 1895 no case o f such
intervention occurred, though there were during those years from 8
to 14 courts in the Kingdom , and there were but 8 such cases during
1896 to 1900 among 16 to 19 courts. (*6) On the other hand, the
Berlin court, whose record far surpasses that o f any other, intervened,
or attempted or was requested to intervene, during the five years
1895 to 1899 in no less than 103 disputes. O f these, in 60 action
got no further than preliminary negotiation, while in 16 application
came from one side only, leaving 27 cases in which intervention was
accepted by both parties. In 18 o f the 27 cases settlements were effected
by conciliation, and in the other 9 decisions were given, though how
many were accepted is not stated. Am ong the strikes settled was
one involving 2,000, and 3 others involving from 700 to 900 work
people. ( c)
AM E N D M E N T OF 1901.
Such work as that o f the Berlin court inspired, in 1901, some im
portant changes in the law with reference to action in collective
disputes. These appear in an extensive amendment to the general
law o f 1890, made by act o f June 30, 1901, (*) which went into force
January 1, 1902. Therein is provided in the first place that where
but one party applies to the court for action the president shall
make every effort to induce the other to join in the application, and
if neither applies he is likewise to endeavor to persuade them to
refer the case to the court. So far the new law simply makes legal
the independent initiative which some courts, as noted above, had
been before exercising in an inform al way. In the next place an
important change is made in the constitution o f the conciliation
bureau. Instead o f being composed o f members o f the court, with
the possible addition o f representatives named by the parties as
form erly, the bureau is to consist o f the president o f the court, with
four or more representatives named by the parties in equal numbers,
who may or may not be members o f the court, but who, as form erly,
®Statistisches Jahrbuch fur die Stadt Dresden, 1901, pp. 130, 132.
&Wiirtemburgisches Jabrbuch fur Statistik und Landeskunde, 1900, III, p.
104.
cT be above facts as to tbe Berlin court are taken from a review o f the
court's work by one o f its members, published in Sociale Praxis for March 1,
1900, and from Das Gewerbegericht, vol. 6, p. 107, and vol. 7, p. 164. Tbe
above is tbe complete record o f tbe Berlin court down to 1899, inclusive, as no
case of action occurred before 1895.
Reichsgesetzblatt, 1901, No. 29. This amendment is given in full in the
monthly publication o f the Austrian bureau o f labor statistics, Sociale Rund
schau, 1901, II, p. 297. The entire industrial court's law, with the amendments
o f 1901, in French, may be seen in Annuaire de la Legislation du Travail, 5*
annee, 1901, p. 9.

443

GOVERNMENT INDUSTRIAL, ARBITRATION.

must not be concerned in the dispute. I f they be not named by the
parties, the president may appoint them. He may appoint also,
after consulting the parties, one or two persons not concerned in the
dispute to have simply an advisory voice in the proceedings. In the
third place the president o f the court is given power, when applica
tion for action was originally made by one or both parties, to impose
a fine not exceeding 100 marks ($23.80) upon any person concerned
in the dispute for failure to appear when summoned to give evidence.
From such fine appeal may be taken to the civil courts, however.
Fourth, and less important, one limitation is put upon the courts in
that no application to them for action may be made except by joint
action o f the parties when all the employers in a dispute are members
o f a guild which has a conciliation board whose constitution and
procedure conform to the requirements o f the law. Finally, it may
be noted that in addition to the changes above indicated, the amend
ment makes the establishment o f courts compulsory in all cities with
a population o f more than 20,000. According to Das Gewerbegericht («) this last provision made necessary the establishment o f 54
new courts, that many out o f 221 cities with over 20,000 inhabitants
being without them in 1901.
SETTLEM ENT OF DISPUTES UNDER TH E AM E N D M E N T OF

1901.

The monthly Keichs-Arbeitsblatt, issued since A pril, 1902, by the
imperial statistical bureau, publishes annually statistics o f the work
o f the industrial courts, and affords the follow ing with reference to
intervention in collective disputes for the period since the amend
ments o f 1901 went into effect.
STATISTICS OF INTERVENTION BY INDUSTRIAL COURTS IN COLLECTIVE
DISPUTES, GERMANY, 1902 AND 1903.
[From Reichs-Arbeitsblatt, I Jahrgang, pp. 6 6 3 -6 6 9 ; II Jabrgang, pp. 5 26 -5 3 3.]
1902.

1903.

Total.

Number of industrial courts at end of the year..................... .............
Total applications for intervention................... ........................ .............
Applications from one side only.... ................................................... ........
Settlements by conciliation.......................................................................
Decisions rendered.......................................................................................
Decisions accepted........................................................................................

373
144
119
35
10
4

400
174
135
54
13
7

318
254
89
23
11

Decisions rejected—
By employers................................................. .........................................
By workers..............................................................................................
By both parties............................................................................. .........

12
1
2

10
4
1

22
5
3

T otal.......................................................................................................

Cases in which conciliation failed, but no decision was rendered. . .

A comparison o f these figures with those for preceding years given
above shows clearly a continued growth o f activity by the industrial

« Vol. 6, p. 230.

444

BULLETIN OF THE BUREAU OF LABOR.

courts in the field o f collective industrial disputes. Concerning the
character o f the work done these latest returns show, as did those
for the earlier years, that most o f the settlements are reached by
conciliation; that after efforts along that line fail in a large number
o f cases no decision is rendered, and that o f the comparatively few
decisions rendered a large proportion fail to settle the dispute because
o f their rejection by one or other o f the parties. The figures for
1902-3 bring out another fact not shown in the preceding table,
namely, that rejections o f decisions by employers occur far more fre
quently than those by the work people. (®) The fact that so large a
proportion o f the applications for action come from one party only,
taken in connection with the fact that submission to proceedings
before the courts is absolutely voluntary for both parties, would indi
cate that in a considerable number o f cases the courts’ presidents
successfully persuade one o f the parties to accept the procedure,
which the amendment o f 1901 made it their duty to attempt to do
whenever one party only applies for intervention by the court.
A n examination o f the reports on strikes and lockouts for 1902
and 1903 shows an increase in number o f settlements by industrial
courts in both years, as follow s:
TOTAL STRIKES AND LOCKOUTS AND NUMBER SETTLED BY INDUSTRIAL
COURTS, GERMANY, 1902 AND 1903.
1902.
Total strikes and lockouts_________________________________________
Number settled by industrial courts________ ________ ____ _________

1,135
43

1903.
1,501
55

Total.
2,636
96

It w ill be seen, however, that the total settlements o f strikes and
lockouts in 1902 does not exceed the total for 1900 in a preceding
table, nor does the 1903 record surpass that o f 1899. Proportionately
to the total strikes and lockouts occurring, settlements by the indus
trial courts have not in any succeeding year surpassed the record o f
1899, nor was there an increase in 1903 over 1902, the settlements
per 100 strikes and lockouts having been for the five years 1899 to
1903, respectively, 4.0, 3.0, 2.9, 3.8, and 3.7.
The Berlin court continues to show far the largest amount o f
intervention in collective disputes, and its record in this field since
the changes in the law made in 1901 is shown in the follow ing
table:
a No explanation appears in the reports for the fact that the total rejections
•f decisions is far larger than the total decisions rendered, minus those
accepted. Since for some courts rejections o f decisions are tabulated where no
decisions were rendered, it may be that the total of rejections includes cases
in which parties indicated unwillingness to accept a decision before it could
be rendered.

445

GOVERNMENT INDUSTRIAL ARBITRATION.

STATISTICS OF INTERVENTION BY BERLIN INDUSTRIAL COURT IN COLLEC
TIVE DISPUTES, 1900-1901 TO 1903-4.
[From Statistisches Jahrbuch der Stadt Berlin, 28 Jahrgang, 1903, p. 187. The months
making up each year are not indicated in the report, hut they are nearly the calendar
months or the first year in each case, i. e., 1900, 1901, 1902, 1903.]
1900-1901. 1901-2.
Cases in which the court sought to intervene
without application from either party.............
Applications from one party only.........................
Cases in which both parties applied for inter
vention .....................................................................
Settlements effected by conciliation....................
Decisions rendered ana accepted.........................
Decisions rendered, but not accepted by either
p a rty ........................................................................
No decision rendered...............................................

1902-3.

1903-4.

5
1

13
9

1
1

Total.

16
44

9
al

5
2

“ This decision was accepted by the work people, but rejected by all but one of the
employers.
L A W OF

1904

FOR M ERCANTILE COURTS.

The latest development o f the German industrial courts consists
o f an extension o f the system to mercantile pursuits by an act o f July
6,1904. (a) This law makes the same provisions for the establishment
o f courts generally upon the voluntary initiative o f local authorities
as are to be found in the law regulating the courts for factory indus
tries, and requires, likewise, that a mercantile court must be estab
lished in every city with a population o f over 20,000. W ith very
little modification o f details, to fit the different conditions in mercan
tile industries, the new law simply reenacts for the mercantile courts
(Kaufmannsgerichte) the existing regulations o f the law o f 1890, as
amended in 1901, governing the courts for factory industries ( Gewerbegerichte). The new courts, like the old, may take cognizance o f
•ollective disputes, and for these all the regulations (Part I I I ) o f the
old law are simply reenacted entire and without even verbal changes.
A U STK IA .
No act dealing prim arily with conciliation or arbitration for strikes
or similar disputes has thus far been passed in Austria, but two laws
now in force make provision therefor incidentally, and deserve brief
notice.
M INING GUILDS L A W OF AUGUST 14, 1890.

Considering first the least notable o f the two, an act o f August 14,
1896, (b) establishing guilds for the mining industry, declares the
purpose o f such guilds to be, among other things, the prevention or
settlement o f disputes between employers and employees. Provision
is made for both individual and collective disputes. F or the latter
the “ grand committee ” o f the guild is to act as a board o f concilia-*
« Given in full in Reichs-Arbeitsblatt, II Jahrgang (1904), No. 4, p. 326.
* Reichsgesetzblatt, No. 156. Summaries o f the law may be found in the
British Labor Gazette, 1897, p. 104, and in the Belgian Revue du Travail, 1896,
p. 1159.

446

BULLETIN OF THE BUREAU OF LABOR.

tion. Each guild is composed o f two assemblies, the one including
all the proprietors o f mines in a district, the other their employees,
represented by one delegate for each 100 miners. Each o f these
assemblies elects an executive committee o f from five to nine members,*
and these two committees together constitute the “ grand committee,”
representing the guild as a whole. In case o f collective disputes,
actual or threatened, the grand committee is to intervene as a board
o f conciliation at the request o f either o f the assemblies or o f either
o f the parties, or in exceptional cases at the order o f the district min
ing authorities. The parties are to appoint representatives in equal
numbers, the hearing is to be oral, and witnesses and experts may be
examined. I f an agreement is reached, it is to be put in w riting and
signed by the members o f the board and the parties’ representatives
and made public. Otherwise the board is to render a decision, and
the parties must signify their acceptance or rejection o f this within
a specified time.* A t the end o f this period the decision, with the par^
ties’ opinions thereon, is to be published by the board. From begin
ning to end the procedure is absolutely voluntary for the parties.
SETTLEM ENT OF DISPUTES B Y M IN IN G GUILDS.

The above conciliation process for peaceably settling disputes is
available for the entire mining industry in Austria, as by the terms
o f the act every mine owner and every miner must belong to a guild,
and hence be represented on a grand committee; but when search is
made for practical results it is found that very little has been accom
plished by the provision. The Austrian bureau o f labor statistics
publishes annual reports on strikes and lockouts, ( a) compiled from
returns made out on schedules in which one inquiry calls for the mode
o f settlement, asking specifically for report thereunder o f settlements
by conciliation boards. But. while 221 strikes were reported in the
mining industry for the six years 1897 to 1902, in one only (in 1900)
is a conciliation board credited with contributing to the settlement.
The annual reports do not give any indication as to how many attempts
at settlement may have been made. Quarterly returns o f strikes in
mines, published in the monthly Sociale Rundschau o f the bureau,
give for 1900, ( 6) however, more detailed statements than the annual
report. These show attempts made by eight different boards, with
all but the one above mentioned resulting in failure. In that one the
dispute was settled by conciliation before the board. In six o f the
others hearings were held before boards, but in the remaining case
"D ie Arbeitseinstellungen und Aussperrungen im Gewerbebetriebe in Oesterreich.
» The year 1900 was the first for which these quarterly returns were pub
lished, and for subsequent years the quarterly tables are more condensed in
form and furnish fewer details. The returns for 1900 may be seen in Vol. I,
part 1, p. 848; part 2, p. 518; Vol. II, part 1, p. 444.

447

GOVERNMENT INDUSTRIAL ARBITRATION.

proceedings were blocked at the start by the refusal o f one party
to appoint representatives for the hearing. Whether any form al
decisions were rendered ^by boards the published returns do not show.
Five o f the total eight cases were in connection with the coal strike
o f 1900, the greatest industrial dispute in Austrian history, all five
attempt^ being notably fruitless.
THE FACTORY-INSPECTION L A W OF JUNE 7, 1883.

A much less explicit, but, as the outcome has proved, a much more
fruitful provision than that o f the mining-guilds act, is a section o f
the Austrian factory-inspection law o f June 7, 1.888. Section 12 o f
that law directs that “ in the fulfillment o f their duties the factory
inspectors shall endeavor, by kindly, authoritative action, not only to
secure the benefits o f the law to employees, but also tactfully to aid
employers in the fulfillment o f the requirements laid upon them by
the law ; to mediate im partially between the interests o f employers
and employees through the aid o f their technical knowledge and
official experience, and to gain such a position o f confidence in rela
tion to both classes as w ill put them in a position to maintain and
foster friendly relations between them.”
SETTLEM ENT OF DISPUTES B Y FACTORY INSPECTORS.

So well have the Austrian factory inspectors carried out this direc
tion that no small part o f their duties consists in the adjustment o f
differences between employers and employees; so much so, in fact,
that the inspectors make it a practice to appoint regular consultation
days for the hearing o f such matters which are most frequently
brought before them by working people. Most o f the cases are o f
the nature o f individual disputes, but not a few have to do with
collective disputes, as shown by the amount o f intervention by
inspectors indicated in the annual reports on strikes and lockouts, as
follow s:
TOTAL STRIKES AND LOCKOUTS AND NUMBER OF INTERVENTIONS BY FAC
TORY INSPECTORS, AUSTRIA, 1894 TO 1902.
[Compiled from the annual reports on strikes and lockouts published by the Austrian
bureau of labor statistics.]

Year.

Number in which inspectors
intervened—
Total
strikes
W ith
and lock
Alone. other au Total.
outs.
thorities.

1894..................................................................................................
1895 ...................................................... .........................................
1896
....................................................................................
1897..................................................................................................
1898..................................................................................................
1899..................................................................................................
1900..................................................................................................
1901..................................................................................................
1902..................................................................................................

172
217
315
257
255
316
313
273
272

36
39
45
38
28
59
26
26
35

16
29
35
22
31
53
25
13
17

52
68
80
60
59
112
51
39
52

Total.....................................................................................

2,390

332

241

573

448

BULLETIN OF THE BUREAU OF LABOR.

More complete for the years since 1898 are the follow ing figures
from the reports o f the inspectors themselves:
INTERVENTIONS OF FACTORY INSPECTORS IN STRIKES AND LOCKOUTS, AUS
TR IA, 1899 TO 1903.
[From the annual reviews of the factory inspection reports given in the monthly Sociale
Rundschau of the Austrian bureau of labor statistics, to be found in the July number of
1901 and the August numbers of 1902, 1903, and 1904.]

Year.

Strikes
and lock
outs of Number in
which in which they
spectors intervened.
were cog
nizant.

1899..............................................................................................................................
1900................................ ..............................................................
................
1901...................... .......................................................................................................
1902...............................................................................................................................
1903...............................................................................................................................
Total............ .........................................................................

231
161
125
141
180

131
53
55
68
110

838

417

The reports do not indicate in what proportion o f these cases they
could be credited with having effected settlements, and particulars
o f their interventions are not given, as a rule. It is stated, however,
in the review o f their work for 1903 that requests for their interven
tion came from work people, from employers, or from both together,
and also from local political authorities. Two interesting cases are
noted in the report o f strikes and lockouts for 1902, in which a set
tlement was effected by form al arbitration before boards consisting
o f equal numbers o f employers and workers, with a factory inspector
as president.
SW ITZE R LA N D .
Six o f the Swiss Cantons have made some provision by legislation
fo r the settlement o f strikes and lockouts. In three— Geneva, BaselStadt, and St. Gallen—there are special acts dealing with the matter,
while in the other three—Vaud, Lucerne, and Bern—the provision is
in connection with the industrial courts for individual disputes, and
such provision existed in Geneva also up to 1900.
L A W S CONCERNING INDUSTRIAL COURTS.

Considering first the laws for industrial courts which deal but
incidentally with collective disputes, that o f October 19, 1882, in
Geneva was the earliest, and served in fact as model for those in the
other Cantons. The Geneva system, however, was by no means orig
inal, being itself patterned after the French councils o f prudhommes. An amending law o f February 1, 1890, further developed
the system in Geneva, and a law o f May 12, 1897, consolidated the

GOVERNMENT INDUSTRIAL ARBITRATION.

449

two earlier statutes. (a) It will be necessary here to trace only so
much o f the outlines o f the general system as will indicate clearly the
provision made for collective disputes, though the latter is in fact a
quite subordinate feature o f the system. A ll industries and trades
in the jurisdiction o f the court are divided into twelve groups, and
for each group a branch o f the court or “ council ” is established.
This council is composed of 30 members, 15 chosen by employers and
15 by working people. The members elect their own officers from
among themselves. Each council organizes within itself four dis
tinct bodies: (1) A conciliation bureau, composed o f 2 members; (2)
an arbitration tribunal, with a president and 4 members; (3) a court
o f appeals, with a president and 6 members, and (4) a committee of
8 members. The first three bodies have to do with individual dis
putes, their functions being indicated by the terms used to designate
them. The committee o f eight is for the supervision o f apprentice
ship relations and factory hygiene. In all these bodies the member
ship is equally divided between representatives o f employers and
representatives o f workmen.
In addition, now, to the above organization o f the court there is a
central committee composed o f two delegates from each council’s
committee o f eight, one representative each of employers and of
workmen. One o f the functions o f this central committee is to act
as a board o f conciliation in case of threatened or existing strikes.
The brief provision for such cases was part o f article 74 o f the law of
1897. This directed that whenever a strike was threatened, before its
declaration the party intending to make it should inform the presi
dent o f the department o f commerce and industry, who should sum
mon forthwith the central committee and delegates in equal numbers
from the employers and workmen involved. The central committee,
presided over by the president o f the department o f commerce and
industry, was to endeavor then to arrange a settlement by conciliation,
and a report o f the proceedings was to be made to the council o f state.
The two brief paragraphs containing the above provisions were
repealed by the special law o f 1900; but, as will be seen in the
account o f that law (**&), certain functions in collective disputes are
still assigned to the central committee.
The Vaud law o f November 26,1888, amended by act of November
25, 1892, follows the Geneva law and makes the same provision for
conciliation in collective disputes through the agency o f the central
committee.
a This law may be found in the Annuaire de Legislation l&trang£re o f the
French Society o f Comparative Legislation, vol. 27 (1897), p. 634.
&Infra, pp. 455, 456.
50—No. 6 0 -0 5

M -----5

450

BULLETIN OP THE BUREAU OP LABOR.

The laws concerning industrial courts o f February 16, 1892, in
Lucerne and o f February 1, 1894, in Bern do not follow quite so
closely the Geneva model, none of the German Cantons, in fact, hav
ing patterned so closely after the Geneva law as the French Cantons.
In both Lucerne and Bern there is the same division o f industries
into groups with a council or branch for each as in the Geneva
arrangement; but in neither is the body which is to act in case
o f strikes made up as in Geneva, there being in neither a permanently
organized body therefor. In Lucerne the conciliation board for
collective disputes is composed o f all the “ conciliation committees ”
o f the various councils, the conciliation committee o f each council
consisting o f two members and corresponding exactly to the concilia
tion bureau o f the Geneva court. (a) For conciliation purposes the
general president o f the court, who also acts as president o f each
council, summons the committees when necessary. In Bern,(*6) on
the other hand, the conciliation board consists o f a committee of
from five to fifteen members, appointed from their own number by
the general assembly o f the court, which includes the members o f
all the councils, the assembly being called together for this purpose
by the general president o f the court as occasion requires.
Geneva has one industrial court, Yaud four, and Bern and Lucerne
each one, which are authorized by the above provisions to inter
vene in collective industrial disputes. It does not appear, however,
that any considerable activity in this field has been developed by any
o f them. In some cases courts have intervened. Thus the Bern
court in 1896 mediated in four collective differences, arranging a
settlement in three ; ( c) but, on the other hand, the Geneva court,
the largest and most important o f the seven, had not accomplished
so much but that a special law upon the subject was passed in 1900,
and the provision for its intervention (except as a court o f appeal as
noted below) was abolished.
SPECIAL L A W S FOB COLLECTIVE DISPUTES.

Much more important here than the incidental provisions above
noted are the two laws in Basel-Stadt and Geneva and a decree in
St. Gallen dealing exclusively with collective disputes.
BASEL-STADT.

When the Canton o f Basel-Stadt established industrial courts in
1889 no provision was made for collective disputes, but this class
Cf. supra, p. 449.
&The Bern law in French may be found in the Annuaire de Legislation
fitrangfcre, vol. 24 (1894), p. 595.
o According to an account in Der Griitlianer o f September 30, 1897, as quoted
in the British Labor Gazette, 1897, p. 297.

451

GOVERNMENT INDUSTRIAL ARBITRATION.

o f differences was dealt with by a law of May 20, 1897. (a) This
brief statute o f six articles provides for conciliation only. It pre
scribes that in case o f disputes which either have produced or threaten
to produce a stoppage o f work the council o f state o f the Canton,
either upon the request of one o f the parties, or in grave cases on its
own motion, shall appoint a board o f conciliation consisting of an
equal number o f employers and employees either from among those
directly concerned or from others in the same line of industry, with
a president who must be either a member of the council o f state or
a disinterested person. I f the dispute concerns a single establish
ment, the council o f state may direct one o f its members or some
other disinterested individual to act alone as conciliator. Requests
for conciliation must be addressed to the president o f the council,
and that officer decides in what cases the Government shall intervene
upon its own initiative. Upon receipt o f a report o f the negotiations
from the president o f the board o f conciliation the Government shall
publish a notice (a) when conciliation is refused by one or both parties,
showing the principal reasons for refusal; (6) when the conciliation is
successful, giving the essential points o f the agreement; (c) when
the agreement reached before the board is repudiated by one or
both parties, showing the nature o f the agreement and the chief
reasons for its rejection. Everything in the procedure is entirely
voluntary for the parties, except so far as the announcement by the
Government o f the course taken by them may bring the pressure of
public sentiment to bear.
Down to the year 1902 the Basel-Stadt law o f 1897 was applied in
but a single instance, in 1899. Beginning with 1902, however, there
has been more frequent resort to the law, as indicated by the following
summary, which shows both the number o f disputes in which resort
was had to the act and the results of proceedings therein:
TOTAL DISPUTES ACTED UPON AND NUMBER SETTLED UNDER BASEL-STADT
LAW , 1897-98 TO 1905.

Year.

1897-96.......................................
1809............................................
1900-1901
1909............................................
1908............................................

Total
cases Disputes
settled.
(dis
putes).

Year.

Total
cases Disputes
(dis
settled.
putes).

1904..........................................
1905(a).....................................

6
6

8
8

Total.............................

•January to May.

From the reports o f the results o f proceedings in the various cases,
published by the council o f state as required by the law, the following
facts appear.
For one o f the 1905 cases a partial report only is at
®Published in the Bulletin de TOffice du Travail (France), 1897, p. 404

452

BULLETIN OF THE BUBEAU OF LABOR.

hand, which accounts for the uncertainty in that case noted in one
or two instances below.
In the case which occurred in 1899 the employers were petitioners
for application o f the law, but in all the others, save possibly the one
in 1905, for which full report is not at hand, the work people applied
for the appointment o f conciliators under the law.
It is not clear from the reports in how many of the disputes
stoppage o f work occurred, but at least 11 out o f the total 19 cases
were strikes, and the request for application o f the law in 7 o f these
was not made until after the suspension o f work. In 3 cases the
application was made before, but strikes followed, while in 1 case
(the 1905 case, for which only partial report is at hand) whether
application was before or after strike does not appear. The 11 set
tlements include 9 o f the above strike cases.
The procedure followed was essentially the same in all the cases.
In each instance the council o f state, in response to the application
received from one o f the parties, appointed one o f its own members to
conduct the conciliation proceedings and be president o f the board.
This member then took the necessary steps for the formation of a
conciliation board or conference. In three instances, in addition to
a member o f the council as president o f the conciliation board, the
council named one or two other members to act with the president on
the board. It is not clear from the reports in just how many cases
there was formal appointment o f a board by the council o f state or
in how many the procedure was in the nature o f a conference o f the
parties’ representatives before the members o f the state council as
conciliator. It appears, however, that in either case the parties’ rep
resentatives were designated in the first instance by the parties them
selves, whether with or without formal appointment by the council
afterwards.
Out o f 18 cases for which full reports concerning the matter are
at hand, in 15 cases conferences of representatives o f the parties under
the presidency o f the members of the state council were held. In
the other 3 cases no conferences were held because of the opposi
tion o f the employers, who in two instances refused to name repre
sentatives, while in the third case their representatives announced at
the first meeting that the employers had decided to treat only with
their own workers and not with the union, which was party to the
proceedings. O f the 15 cases in which it is clear that conferences
were held, in 8 the representatives of the parties came to an agreement
which ended the dispute, while in 7 no agreement could be reached.
In 3 o f the cases in which a settlement was effected the first confer
ences resulted in failure and the council published the required report
to that effect. Afterwards, second proceedings and conferences were
instituted, twice at the instance o f the council o f state itself, and once

GOVERNMENT INDUSTRIAL ARBITRATION.

453

by joint agreement and request of the parties, who after the first
procedure had come to an agreement on much the same terms as had
been arranged by the representatives at the first conferences, but
which had been rejected by the employers, and who wished for a
conciliation board under the law to receive, record, and publish the
agreement. A ll three o f these second proceedings resulted in final
settlements, though the last mentioned, reckoned as a settlement in the
table above, should be regarded, perhaps, as only a partial settlement
under the law.
In another case, however, the Government instituted a second pro
cedure under the law, which resulted, like the first, in failure. This
is the 1905 case above alluded to, for which report o f the first pro
ceedings is not at hand. In the second proceedings no conference
o f the representatives was held, but two members o f the council of
state, delegated for the purpose, held interviews with the parties’
representatives separately, but could not secure from them sufficient
concessions to make a settlement possible.
ST. GALLEN.

In 1902 the same method of conciliation as that just described for
Basel-Stadt was adopted by the Canton o f St. Gallen, in a decree
issued by the council o f state under date o f February 25. (a) The only
changes made in the Basel-Stadt plan touch no essential features, and
consist in provision that the Government may intervene in the absence
o f application from the parties only upon request o f local, municipal,
or district authorities instead o f directly upon its own motion, and in
a provision that the president o f the conciliation committee, named
by the council o f state, shall make up a list o f members subject to the
approval o f the council, instead o f all being named directly by the
council. One or two minor details are added by the St. Gallen decree,
specifying that in making up committees the wishes o f the parties are
to be considered so far as possible, that decisions are to be reached by
majority vote, and that reports of proceedings are to be signed by
all the members.
The annual reports o f the council of state of St. Gallen show that
under the above decree o f 1902 there was intervention during that
year in 4 strikes, during 1903 in 3 strikes, and during J904 in 3, or a
total o f 10 for the three years. The reports do not show the details
o f procedure, save that in the 1902 cases intervention was requested
three times by workingmen and once by employers. As to results,
intervention under the decree brought about settlements twice in 1902
« Published in full in the Bulletin de l’Office International du Travail, Nos.
4-5, 1902, p. 175.

454

BULLETIN OF THE BUREAU OF LABOR.

and once in 1904, or three times altogether, while 1 case in 1902 was
settled by the parties before the representative appointed by the coun
cil could take action.
GENEVA.

A far broader and much more radical measure than the Basel-Stadt
law was the act o f February 10, 1900 (°), in Geneva, which went into
effect on March 21 o f that same year, and which has since been revised
by act o f March 26, 1904. (l) The revision o f last year, which went
into effect on May 28,1904, did not change the general features of the
system laid down in the 1900 act, though adding or altering some de
tails. So far as modifications of importance were made by the re
vision, they are noted in the following description o f the system:
The Geneva law embodies a general method o f negotiation between
employers and employees, which, in the absence o f any special agree
ment, may be followed both for the arrangement o f the conditions of
labor when there is no dispute and for the settlement o f disputes when
they arise. Three distinct stages in such negotiation are provided
for, viz, (1) a conference o f delegates representing the two parties,
(2) in case o f disagreement in such conference, mediation between the
delegates for the purpose o f conciliation by an outside agency, and
(8) where such conciliation fails, arbitration.
The parties to a negotiation under the law are, where such exist,
the employers’ and employees’ associations, which have been duly
registered and whose rules have been approved by the council o f state,
which approval is to be granted only upon the condition (a) that an
association’s rules contain nothing contrary to law and especially
nothing infringing the freedom o f labor; (5) that all members of
the trade shall have the right to become members o f the organization,
except that general conditions of admission or exclusion may be pre
scribed, provided they are not of an arbitrary character; ( c ) that its
executive committee shall be elected by majority vote o f the members;
and ( d ) that its rules may at any time be amended upon the demand
o f a majority o f the members. The original law of 1900 made no
mention o f any limitation upon the right o f membership, the quali
fication above noted having been added in 1904. So far as trade
organizations do not exist the parties to an agreement under the law
shall be all employers and workmen who have been regularly en
gaged in the trade for more than three months within the Canton,
and who respond to the call o f the council o f state for an assembly, as
specified below.
« May be found in the Belgian Revue du Travail, 1900, p. 615, or in the Annuaire de Legislation du Travail, 1900, p. 837.
&May be seen in the Revue du Travail, 1904, p. 1099, or Bulletin de TOffice
International du Travail, third year, p. 309.

GOVERNMENT INDUSTRIAL ARBITRATION.

455

For conferences to determine upon wages and labor conditions,
where the parties are organized, the employers’ associations and the
trade unions shall elect delegates in separate assemblies convened for
that purpose. In trades where either party is unorganized the council
o f state shall call these assemblies upon the written request of one-fifth
o f those members o f either class who are entitled to vote for members
o f the industrial court o f the Canton, or “ in urgent cases ” the counfil
o f state may call such assemblies upon its own initiative, this last
provision for the initiation of proceedings by the Government itself in
the case o f unorganized trades being a feature added to the law in
1904. Each assembly is to elect 7 delegates, unless by agreement
a smaller number be fixed, and alternates; which delegates must be
persons who have been engaged in the trade in question for at least
twelve (formerly eighteen, under the act o f 1900) months within the
Canton.
The delegates so chosen are to meet in conference “ with as little
delay as possible,” as a clause o f the 1904 act orders. They shall
decide questions by a three-fourths vote o f all the delegates, such
decisions to be signed by those voting for them and embodied in a
report, o f which each party’s delegates shall have a copy, and one copy
each shall be filed with the industrial court and the department o f
commerce and industry.
Wage scales and conditions of employment thus determined are to
remain in force for a stipulated period not to exceed five years, and
are to continue in force from year to year thereafter until one party
or the other withdraws from the agreement, in which case notice of
withdrawal must be given at least one year in advance, as a rule.
The delegates may, however, by mutual consent make the duration
o f the agreement and the notice required less than a year, but in any
case, until a new agreement is made, the old one shall remain in force.
When a conference as above described does not result in an agree
ment, upon written request by either party the council of state shall
appoint one or more o f its own members as conciliators, who shall
summon a meeting o f the employers’ and workmen’s delegates and
endeavor to bring them to the required agreement of three-fourths
o f their number. I f these conciliators fail in their efforts they shall
report the failure to the central committee (*) o f the industrial court.
In addition to this duty o f acting as conciliator upon appeal of par
ties whose delegates have failed to reach an agreement, the council
o f state is given power, whenever a dispute arises in any trade, to
initiate conciliation proceedings itself, and in such cases it shall call
upon the parties to name delegates in the same manner as above
described for cases in which the parties initiate proceedings. I f in

«C f. supra, p. 449.

456

BULLETIN OF THE BUREAU OF LABOR.

such a case o f dispute either party refuses or is unable to choose
the proper delegates, the council of state shall report failure of
conciliation to the central committee o f the industrial court in the
same way as for failure upon appeal from the parties. Under the
original act o f 1900 this power to initiate conciliation proceedings
with the council o f state was limited to disputes involving unorgan
ised workers, but the clause containing this restriction was dropped
in 1904.
Upon the receipt of a report of failure of conciliation the central
committee o f the industrial court is within six days to summon the
parties’ delegates for arbitration, and i f either party still refuses,
or is unable, to appoint delegates the central committee shall name
them. In case any members o f the central committee belong to the
trade affected by the difference, the committee is to replace them for
the hearing with other members o f the court from the same group of
industries(a) as are represented by those displaced. The central com
mittee and the delegates of the parties together constitute the board
o f arbitration. Each member is entitled to the same daily compensa
tion for service on the board as is allowed members o f the industrial
court, and may not absent himself from the arbitration proceedings
without just cause, under pain of a fine of 50 francs ($9.65), to be
imposed by the central committee. Under a clause added to the law
in 1904 the arbitration hearings must be public. Decisions of the
board are to be reached by a majority vote o f the members present.
In case they are deciding the terms o f employment in a trade for
which no previous agreement exists, their award may not come into
force until at least six months after it is rendered, except by mutual
consent o f the parties.
The act provides that the same procedure as above is to be followed
whenever it is necessary to alter an agreement because o f the intro
duction o f new methods o f production or whenever any dispute arises
o f a character likely to involve a general or partial suspension of
work. In the case of a dispute o f the last-mentioned character it is
provided by a new clause in the act o f 1904 that the central committee
o f the industrial court may declare itself incompetent to decide the
issues and simply make a report as ip whether conciliation has suc
ceeded or failed.
The law forbids the declaration o f “ any general suspension of
work ” by employers or work people—that is, a strike or lockout—
for the purpose o f modifying a schedule arranged under the law or a
decision rendered under it in settlement o f a dispute, and makes any
public appeal to a partial or general suspension o f work during con
ciliation or arbitration proceedings or before an effort for such con-

Of. supra, p. 449.

GOVERNMENT INDUSTRIAL ARBITRATION.

457

ciliation or arbitration has been made, whether in case of amicable
negotiation o f general agreements or in case o f disputes, punishable
with police penalties or such other penalties as may be applicable
under the general penal code or other laws, and it is expressly
declared that editors or publishers are liable to these penalties. The
changes made by the act o f 1904 in regard to the prohibition o f strike
and lockout and the punishment of incitement thereto are o f interest.
Thus, the law o f 1900 specified as forbidden only suspension o f work
for the purpose o f modifying an existing schedule under the law,
while the later statute specifies also suspension which contravenes any
decision rendered in case o f a dispute. Again, the earlier act pre
scribed penalties only for appeals for suspension o f work “ in viola
tion o f an existing schedule or in contravention of the provisions o f
this law,” whereas under the 1904 law the penalties are applicable
in practically any case o f public appeal for suspensiQn o f work which
occurs before an effort at settlement, whether o f general schedule or
dispute, shall have been made in the maimer prescribed by the
law, or which occurs after such a settlement has been made. Finally,
the act o f 1900 declared the penalties for every appeal for suspension
o f work, while the law o f 1904 specifies them only for every 'public
appeal, the law itself italicizing the word.
Four general features of this Geneva system are especially note
worthy. In the first place, its aim is prevention as well as cure o f
disputes; that is, it does not propose simply a mode o f settlement for
industrial disputes as they may arise, but seeks primarily to prevent
their occurrence by means of regular periodic joint agreements be
tween employers and workmen. In the second place, the law recog
nizes the principle of collective bargaining and aims to utilize the
advantages to be derived from trade organization in the negotiation
of the terms o f employment. Thirdly, while the making o f agree
ments by the method prescribed is entirely voluntary for the parties,
it is possible, in the case of disputes, for the Government itself to
initiate the procedure and require that it be carried out. But, in the
fourth place, though the application of the law and an arbitration
decision might thus be practically compelled, there is nothing to
compel the acceptance of the decision when made, since no penalty
whatever is specified for its nonobservance. There is a general pro
hibition o f strike or lockout in contravention o f such a decision, but
no penalty is specified in connection therewith. The only penalty
provided is for “ public appeal ” (appel public) to such strike or
lockout, and though this rather notable but somewhat indefinite pro
vision suggests some degree o f compulsion in connection with deci
sions, it is still far from making the Geneva statute a compulsory
arbitration law.

458

BULLETIN OF THE BUREAU OF LABOR.

Reports published by the Geneva department of commerce and
industry (a) show the following facts concerning the operation of the
above-described Geneva statutes.
Down to 1905 neither law had been applied for the settlement of a
strike or lockout, but there were seven cases o f their application in
other differences. Up to the 15th o f October, 1903, the law o f Feb
ruary 10, 1900, was invoked six times for the establishment of work
ing schedules, namely, once in 1900, once in 1901, thrice in 1902,
and once in 1903. In all o f these intervention by the council o f state
occurred at the request o f one of the parties, the application coming
once from an employers’ association and in the other cases from work
ers and, save in one, from workers’ unions.
The full procedure laid down in the law for both conciliation and
arbitration was carried out in all six cases. That is, in each instance
the council o f state designated one o f its members as conciliator, who
endeavored to bring the parties’ representatives to an agreement, but
without success. Thereupon the case went to the central committee of
the industrial court for arbitration and a final decision was rendered,
signed in each case by the representatives o f the parties and the
officers o f the central committee. These decisions were put in the
usual form o f working schedules. In one the terms o f employment
were fixed for one year, in one for three years, in two for four, and
in two for five years unless altered in accordance with the law’s
provisions.
The reports at hand do not indicate how many employers’ or
workers’ unions had submitted their statutes to the council o f state
for approval, as provided in the arbitration law. But during the
year 1904 there were 8 such—2 employers’ associations and 6 workers’
unions— all o f whose rules, with modifications in some cases, were
duly approved.
Only one case o f the law’s application in industrial differences is
reported for 1904. In this, request for intervention came to the
council o f state from the workers. A member o f the council was
duly appointed as conciliator, and his efforts resulted in the unan
imous adoption by the parties o f terms formulated by the president
o f the department o f commerce and industry. This case is notable as
the first in which a settlement under the law was reached by con
ciliation.
IT A L Y .
L A W OP JUNE 15, 1893.

The only provision made by law for the settlement o f strikes in
Italy is in connection with the statute governing industrial courts

a Application^ de la Loi du 10 FSvrier, 1900, published in 1903, and general
report o f the department for 1904, pp. 242-245.

459

GOVERNMENT INDUSTRIAL ARBITRATION.

bearing date o f June 15, 1893. (a) The general system closely resem
bles the French councils of prudhommes, ( *6) which have served as
models for nearly all similar institutions in Europe. The courts are
established by royal decree for a given district, and are composed of
equal numbers o f representatives elected by employers and workmen,
respectively, with a president appointed by the Government. There
are two divisions in each court—the one a board of conciliation and the
other a court o f arbitration—the principle o f equal representation of
the two industrial classes being preserved in both. The board of
conciliation is ordinarily composed of the president and two members,
and the court o f arbitration o f the president and four members,
but in especially serious cases the president may designate two addi
tional members to act on the board of conciliation.
The procedure in case of individual disputes includes, first, an
effort by the conciliation board to bring about a voluntary agreement
between the parties personally appearing for that purpose, but if
this fails the case goes to the arbitration court where a compulsory
decision is rendered. There is no special section of the law devoted
to collective disputes. They are brought definitely under the juris
diction o f the courts, however, by the inclusion, in the list of subjects
o f which the board o f conciliation may take cognizance, of questions
concerning future wages and hours o f work. But such questions are
expressly excluded from the jurisdiction o f the arbitration court,
except as the parties may agree to refer them to that body. Arbitra
tion, therefore, as well as conciliation is voluntary in such cases.
SETTLEMENT OF DISPUTES UNDER TH E L A W .

Up to 1897 no court had acted in a collective dispute.
J898, and 1899 the record was as follow s:

For 1897,

TOTAL STRIKES AND NUMBER OF INTERVENTIONS BY INDUSTRIAL COURTS,
ITALY, 1897 TO 1899.
[Compiled from an account Of the Italian courts by Prof. C. F. Ferraris, in Das Gewerbegericht, August, 1901, Verhandlungs Beilage, p. 380. The figures for number of strikes
are from the annual report on strikes for 1899 by the minister of agriculture, industry,
and commerce, as summarized in Sociale Rundschau, Vol. II, part 2, p. 343.]

Year.

1897...............................................................
1898..............................................................
1899...............................................................
Total.................................................

Interventions in strikes.
Number
of courts
in active Total Success Unsuc Settled
exist number.
by the
ful.
cessful. parties.
ence.
28
32

1
11
4

9
4

1
1

Total
strikes.

217
256
259
732

Five o f the 13 settlements (3 in 1898 and 2 in 1899) were reached
by conciliation, while in the remainder (6 in 1898 and 2 in 1899)
©Published in French in the Annuaire de Legislation Etrangere, vol. 23 (1893),
p. 300.
6 The Italian title of the courts is precisely the same—“ Collegi di probi viri.”

460

BULLETIN OF THE BUREAU OF LABOR.

arbitration decisions were rendered. In the one case o f failure a
decision was given but the workmen refused to abide by it and con
tinued on strike. In the strikes settled by the parties, agreements
were reached while the issues were before the court for decision.
The quarterly returns of the work of the Italian industrial courts
given in the Bollettino dell5Ufficio del Lavoro (first published in 1904),
show the records o f the courts as to intervention in collective disputes
for the year 1904. In each quarter from 32 to 42 courts (32 in the
first quarter, 35 in the second, 42 in the third, and 37 in the fourth)
sent in reports o f their work, out of some 60 in existence (59 in the
third quarter and 63 in the fourth). All, however, reported no
cases o f intervention in collective disputes, save one in the fourth
quarter, which attempted to settle a strike by conciliation, but with
out success. Monthly statistics o f industrial disputes published by
the bulletin show a total o f 377 strikes which occurred in the K ing
dom during the same year; This record for 1904 would indicate,
therefore, that the activity o f the courts in connection with collective
industrial disputes has not increased, and apparently has decreased
since 1899. Certainly very meager results have been achieved under
the provision o f the Italian law for intervention in such cases.
DEN M ARK.
ACT OF APRIL 3 , 1900.

Denmark has not provided by law any procedure for settling
industrial disputes, but an act o f April 3, 1900, (°) conferring certain
powers upon private courts of arbitration deserves a brief notice.
In the agreement between the employers’ association and the trade
unions, which terminated the lockout in the building trades of Den
mark in 1899, a special provision was inserted whereby all questions
as to infringement o f the agreement were to be settled by the court
o f appeals o f Copenhagen. But the decision o f such questions was
to lie with that court only—
until such time as there shall be established by law a permanent arbi
tration court (invested with the same authority as the ordinary courts
o f the country for deciding upon evidence causes brought before i t ) ,
with power to determine finally matters of dispute between the
employers and workmen represented by their respective central
organizations.
This arbitration court shall consist of 7 members, o f whom each of
the parties will elect 3, who are not members o f the committee o f the
organization in question; the chairman shall be elected by these 6, and
must be one o f the jurists of the country.
« Published in French in the Bulletin de POffiee du Travail (F ran ce), Vol. V II
(1900), p. 725, and in the Annuaire de Legislation du Travail, 1900, p. 427.

GOVERNMENT INDUSTRIAL ARBITRATION.

461

As soon as this arbitration court has been established, it will take
the place o f the court o f appeals in all matters concerning the above
agreement. (a)
The Danish Government did not see fit to set up the court contem
plated in the above passage from the agreement, preferring to leave
its establishment to the parties who founded such a court January
27, 1900. To this court, however, the Government lent its sanction
and aid through the passage by the Folkething o f a law bearing date
o f April 3, 1900, which was proposed by the minister of the interior.
The act, which is drawn in general terms, provides that power to
summon witnesses may be conferred by royal decree upon any arbi
tration tribunal charged with settling questions concerning the ful
fillment o f agreements made between a general association o f employ
ers and a general organization of workingmen. In order to receive
this power, however, it is required that the arbitration tribunal shall
be located in Copenhagen, and that its president shall possess all the
qualifications required by law o f a permanent judge of an ordinary
court, and before the president can act he must receive from the min
ister o f justice a certificate that he possesses these qualifications.
sThe rules as to the admission of witnesses and the obligation to tes
tify are to be, in general, the ordinary rules in civil cases. The power
conferred by the royal decree may be withdrawn whenever the organ
izations or the tribunal established by them undergo any essential
modifications, or when the president o f the tribunal no longer pos
sesses the above-mentioned qualifications, or when the power con
ferred has given rise to abuses. The associations are required to
give immediate notice to the minister o f justice of any change in the
terms o f their agreement.
SETTLEMENT OF DISPUTES B Y TH E ARBITRATION COURT.

The following facts as to results in practice under this Danish
court o f arbitration are taken from an account published in the
British Labor Gazette. ( *6) The law conferring power to summon
witnesses was drawn in general terms, but contained such conditions
as practically to limit it to the court already referred to, which grew
out o f the great lockout o f 1899, and which was established jointly by
the General Danish Employers’ Association and the Danish Trade
Union Federation. Certainly up to the end of'1903, at least, no other
court o f arbitration had acquired the power provided for by the law.
The jurisdiction o f the one court, which was particularly contem
a The agreement in full may be seen in the Bulletin of the New York State
Bureau^of Labor Statistics, Vol. I, p. 198.
&February, 1904, p. 38. The account is based on information compiled in the
labor department o f the British Board of Trade or on notes furnished by the
British vice-consul at Copenhagen.

462

BULLETIN OF THE BUREAU OF LABOR.

plated by the act, however, is very wide, as indicated by the fact that
most o f the local organizations o f employers or work people o f the
Kingdom have become affiliated with one or the other o f the two gen
eral organizations which set up the court. Thus, out o f a total o f 1,213
trade unions, with 88,098 members, in Denmark in 1903, no less than
989 unions with 64,621 members were affiliated with the Trade
Union Federation. (a)
Up to the close of the year 1903 the court o f arbitration had ren
dered 7 awards, 4 in 1900 and 1 each in 1901, 1902, and 1903. In 5
cases the employers were the plaintiffs, in 1 the trade unions, while
in 1 case each party lodged a complaint against the other. The sub
ject in dispute was in 4 cases strikes which had been illegally declared,
in 1 case the refusal o f the men to work with nonunionists, in 1 an
illegal lockout, while in the remaining case dock laborers had struck
in sympathy with firemen who were on strike and the employers had
declared a lockout against all o f the dock laborers. Four decisions
were in favor o f the employers, 2 in favor o f the unions, while in the
seventh case, in which both parties had complained, both complaints
were declared to be without cause.
N EW ZEALAN D .
L A W OF AUGUST 3 1 , 1 894, AN D AMENDMENTS.

New Zealand holds the distinction of having first put compulsory
arbitration to the full test o f practical application. This she did in
her first law dealing with the peaceable settlement o f industrial dis
putes, the Industrial Conciliation and Arbitration Act, 1894, bearing
date o f August 31 o f that year. This act, in both its framing and its
passage through Parliament, was almost entirely the work o f one
man, Mr. W. P. Reeves, the then minister o f labor for the colony.
The measure was first introduced by him in 1892 and was the outcome
o f a study o f the problems brought forcibly to view by the great
maritime strike o f 1890, which devastated New Zealand as well as
the Australian colonies.
Before it became law in 1894 the bill twice passed the lower house
o f Parliament, only to be so amended by the upper chamber as to
eliminate all compulsion and the arbitration court, and stood the test
o f a general election as part of the policy o f the administration
supporting it.
The debates upon the measure in Parliament turned almost entirely
upon the question o f compulsion, the policy o f the opposition being
to accept the voluntary features o f the law, but to reject compulsion.
« Cf. the German Reiehs-Arbeitsblatt, September, 1904, p. 501.

GOVERNMENT INDUSTRIAL ARBITRATION.

463

This, however, was precisely the point which the author regarded as
most vital and upon which he refused to make any concession, so
that the law finally passed was essentially the same as the bill first
introduced. Parliament passed it not so much through conviction
that it would succeed as out of willingness to give the system a trial.
The author frankly admitted that the law would be an experiment
pure and simple, but maintained that it was well worth trying and
urged Parliament to enact it and then, if it proved a failure, they
could repeal it. “ Very much in that temper,” states the author,
“ Parliament allowed it to become a law.” (a)
According to Mr. Beeves at no time during the contest for its pas
sage did the measure “ arouse the least enthusiasm or attract very
much public attention.” ( 6) The general public took no particular
interest in it. O f the two industrial classes most directly concerned
in such a law the employers opposed it throughout. The trade
unions, however, took up the measure and gave it their support
unwaveringly. This support o f the work people seems to have been
born o f their hope o f securing by legislative reforms what the crush
ing defeat suffered by organized labor in the maritime strike had left
them powerless to gain by their own strength.
The original law o f 1894 was amended by acts o f October 18, 1895,
October 17, 1896, and November 5, 1898. In 1900 all earlier laws
were replaced by a consolidating statute, the Industrial Conciliation
and Arbitration Act, 1900, approved October 27, which further
amended the system, and this law has been amended by acts of Novem
ber 7, 1901, September 4, 1903, September 24, 1903, November 20,
1903, and November 8, 1904. In the following summary the essen
tial features o f the system as it is at present are set forth, with notice
o f such important changes as have been made since the original law
o f 1894.
It may be noted in passing that numerous sections of the New Zea
land law closely resemble similar provisions in the South Australian
act o f 1894 and in the New South Wales law o f 1892, being in many
cases the same, verbatim. The more important features which thus
appear to have been borrowed from those statutes are provisions for
the registration o f unions and industrial agreements such as are found
in the South Australian law and provisions for industrial districts
and clerks o f awards such as are found in the New South Wales law.
But, passing by any comparison with those two-colonies as to details,
the prime features o f the New Zealand system may be grouped under
the following heads:
o National Review, vol. 30, p. 366.

» Ibid., p. 365.

464

BULLETIN OP THE BUREAU OP LABOR.
ADMINISTER TION.

The general administration of the act is in the hands o f the minister
o f labor. The machinery for conciliation and arbitration consists
o f local boards o f conciliation and one general court o f arbitra
tion. The colony is divided by the governor into “ industrial dis
tricts,” for each o f which he appoints a clerk o f awards. In each
district is a board of conciliation composed o f three or five members.
The chairman is chosen by the other members, one-half of whom are
employers elected by the employers’ associations in the district which
have registered under the act, and one-half employees elected by the
registered trade unions in the district, unregistered organizations
having no voice in the matter whatever. The elections o f members
are under the direct supervision o f the clerk o f awards, and detailed
directions therefor are prescribed in the act. The chairman must be
“ some impartial person.” The term of office o f both members and
chairman is three years. In case the registered organizations neglect
or refuse to elect members or the members fail to elect a chairman,
such members or chairman may be appointed by the governor. The
jurisdiction o f these permanent boards in any district is not exclu
sive, as special boards may be appointed for special cases. Until
1901 such boards were to be appointed whenever all parties to a dis
pute applied therefor. But the amendment o f that year requires
their appointment upon the application of either party alone. A
special board, when constituted and chosen in the same manner as
a regular district board, possesses all the powers o f the latter, but its
term o f office expires with the settlement of the dispute for which it
was created.
The court o f arbitration for the whole colony consists of three
members appointed by the governor—one from nominations made by
the registered trade unions in the colony, each union presenting one
nominee; one from similar nominations*made by the registered em
ployers’ associations; while the third, who is president of the court,
is chosen directly by the governor from the judges of the supreme
court o f the colony. In case employers or workers fail to make
nominations within a month after request therefor, or if persons duly
nominated decline to act, the governor shall appoint members directly.
Amendments o f the law made in 1903 provide for the appoint
ment o f “ acting,” or alternate, members in addition to the regular
members, by requiring that each industrial union shall nominate
two persons, and from such nominations made by the employers’
and workers’ unions, respectively, the governor shall appoint two
persons, one as “ member ” and the other as “ acting member.” No
provision is made for an alternate president. An acting member,
representing employers or workers, as the case may be, takes the

GOVERNMENT INDUSTRIAL ARBITRATION.

465

place o f the regular member for the same class whenever the latter,
by reason o f illness or otherwise, is unable to attend a sitting on the
date fixed therefor and it appears that he will continue to be unable
to attend for seven days thereafter. The acting member is sum
moned to duty by the president, when the latter is informed by the
clerk o f the regular member’s inability to attend as above, and his
duties cease when the regular member notifies the clerk of his ability
to resume his duties, provided that if the acting member be at the time
employed on the hearing of a case he shall continue as member until
such hearing is completed. The amendment o f 1904 extended the
functions o f acting members by providing that they shall act in place
o f the regular member for any case in which the latter is a party to
the dispute or proceedings, and if in such a case there is no duly
appointed acting member who can attend and act, then the governor
may, on the recommendation o f the president, appoint a fit person
to act for that case in place o f the regular member.
The term o f members o f the court is three years. Its officers are
appointed by the governor. The compensation o f members o f boards
and o f the court and o f the chairmen o f boards consists o f fees for
time while sitting and traveling expenses. The president of the court,
being salaried as supreme court judge, is allowed traveling expenses
only, under the act.
PROCEDURE.

To refer a dispute for settlement under the act, application by
either party to the clerk of awards is all that is necessary. Prior to
the amendment o f 1901 disputes ordinarily were required to go first
to procedure before a board of conciliation, the only exceptions to this
being cases where the parties had made an agreement to go direct to
the court o f arbitration or where the dispute was in a district in
which no board had been established, in which cases it could be re
ferred to the court. Now, however, a party to any dispute is able to
carry it either to a conciliation board or to the arbitration court direct,
as the 1901 amendment provides that at any time after reference to
a board has occurred and before the hearing has begun either party
may require that the case be transferred to the court of arbitration.
As will be seen later, this change was made because in practice it was
found that a majority o f the cases went up to the court o f arbitration
in spite o f proceedings before boards.
Once a dispute has been referred to a board or the court, pending
the final settlement, anything by the parties in the nature o f a strike
or lockout or the discontinuance of the relation of employer and em
ployed on account of the dispute is unlawful. The amendment of
1901 adds that the dismissal of any worker or discontinuance of work
by a worker shall be deemed to be a misdemeanor under this sec50—No. 60—05

m ----- 6

466

BULLETIN OF THE BUREAU OF LABOR.

tion, unless the one charged with the default shall satisfy the court
that the dismissal or discontinuance was not on account of the dis
pute. Previous to 1900 no penalty was prescribed for infringement
o f this prohibition, but the consolidation act of that year makes any
union or any person “ committing or concerned in committing ” such
default liable to a penalty not exceeding £50 ($243.33), recoverable
in a summary way before the court o f arbitration.
Boards of conciliation are to investigate cases referred to them and
make every effort to bring the parties to an amicable settlement. I f
they are successful in this, the terms are to be put in the form o f an
industrial agreement under the act, which agreement is compulsory
to the extent and in the same manner as awards of the court of arbi
tration.^). If, however, the parties can not be brought to the execu
tion o f such an agreement, the board is to “ make such recommenda
tion for the settlement of the dispute, according to the merits and
substantial justice o f the case, as the board thinks fit.” ( &) This recom
mendation is to be filed with the clerk o f awards within two months,
as a rule, or at the most three months, of the time when the applica
tion for a hearing was filed. The decisions of boards are by majority
vote, the chairman, however, having no vote except in case of a tie.
A quorum consists o f the chairman and one-half of the members,
including one representative each of employers and work people.
A t any time before a board’s recommendation is filed any of the
parties may by memorandum agree to accept it, whereupon the recom
mendation as soon as filed operates as a compulsory industrial agree
ment. A t any time within a month after it is filed if any of the
parties are willing to accept the same in wThole or with modification,
they may file an industrial agreement or memorandum o f settlement
to that effect, either of which carries full compulsion with it. Finally,
at any time within the month the way is also open to any party, by
application to the clerk o f awards, to refer the case to the court of
arbitration for settlement, but if no such application for reference to
the court is made at the end of the month the board’s recommendation
operates as an industrial agreement with full compulsion. It will
be seen thus that even settlements by conciliation before the boards
must result in terms which are compulsory. This necessary result
was made a part of the system by the consolidation act o f 1900.
Before that settlements by conciliation could be put into either volun
tary or compulsory agreements at the option of the parties, and a*
board’s recommendation was never binding of itself, though the
parties could, o f course, incorporate it in an industrial agreement if
they chose.
« Such compulsory agreements under the law may be made at any time by
direct negotiation of employers and employees.
» Act of 1900, sec. 53 (7 ).

GOVEHEMENT INDUSTRIAL ARBITRATION.

467

When cases are taken to the court of arbitration, not less than three
days’ notice o f hearing must be given to the parties, and within one
month, as a rule, of the beginning of the hearing the court’s final
award must be made, which is then to be filed with the clerk of
awards o f the district wherein the case arose. A majority vote of the
court is sufficient for an award. I f one member fails to attend with
out good cause shown, the other member and the president are compe
tent to act as a full court, the president’s decision being final in case
o f a division of opinion. No award, or the proceedings o f the court
in making it, can be “ challenged, appealed against, reviewed, quashed,
or called in question by any court of judicature on any account what
ever.” (a)
Both the boards of conciliation and the court -of arbitration are
given full powers to compel the presence and testimony of witnesses
and parties, and to enter and inspect premises and interrogate any
persons therein. The court has power also to compel the production
o f books and papers, and may even allow their inspection by parties,
but no information so gained may be made public. In cases involv
ing technical questions each party may nominate an expert to sit as a
member of a board or of the court. Parties may appear before either
body in person or by representatives, though neither party may be
heard by counsel except with the consent of the other. The failure
o f either party to attend except for good cause shown is, however, no
hindrance to the proceedings. Hearings of board or court are to be
public as a rule, but may be private if either body so decides.
A few fees, incidental to proceedings under the act, are required of
parties, the law leaving their size to be fixed by the governor o f the
colony. The court o f arbitration may in its award apportion the
costs o f proceedings before it between the parties or direct one to pay
costs to the other, such costs not to include any counsel fees. The
general expenses o f administering the law are met by annual appro
priations o f Parliament.
ENFORCEMENT OF AWARDS AND AGREEMENTS.

As indicated above, proceedings under the New Zealand system
to-day must end either in an industrial agreement or an award, both
equally compulsory. Before the consolidation act o f 1900 agreements
or awards were to remain in force simply for the period specified in
them, which should not exceed three years for agreements and two
years for awards. (b) But the law o f 1900 enacts that both agree
ments and awards shall continue in full force, notwithstanding the
« Act of 1900, sec. 90.
»T he act of 1900 makes tlie term which may be specified in an award three
years, the same as for agreements.

468

BULLETIN OF THE BUREAU OF LABOR.

expiration o f the period specified in them, until, in case o f the former,
a new agreement or an award, in case of the latter, a new award has
been made.
Agreements are enforced in precisely the same manner as awards.
Whenever a breach of an award is committed by any party to the
award, the registrar o f industrial unions or the factory inspector in
the district affected by the award may apply to the court of arbitra
tion for its enforcement. Since the first law o f 1894 three important
changes have been made in this matter. Originally it depended upon
the parties alone to move for enforcement. In 1900 power to initiate
proceedings therefor was given also to the registrar. In 1901 it was
further provided that factory inspectors “ might ” institute proceed
ings for the enforcement of agreements, awTards, or orders of the
court. Finally, in 1903 (by the amendment of November 20), every
factory inspector and every mining inspector in the colony was made
an u inspector o f awards ” under the arbitration law and “ charged
with the duty o f seeing that the provisions o f any industrial agree
ment or award or order o f the court are duly observed,” and for
this duty were given the power to require employers and employees
to produce for their examination wages and overtime books and the
same powTer to enter and examine premises and make inquiry of per
sons therein as inspectors o f factories have under the factories act.
Upon application for enforcement the court may dismiss the case
or may impose such fine, not exceeding £500 ($2,433.25), upon the
offending party as it deems just. A certificate by the court specifying
such fine may be filed in any civil court of competent jurisdiction, and
shall thereupon operate as a final judgment of such court. In the
execution o f such a judgment the property o f a party may be seized,
and if that o f a union is insufficient its members are individually
liable for the difference up to but not exceeding £10 ($48.67)
apiece. Before 1898 the determination of infringements and impo
sition o f fines was not in the hands of the arbitration court, but was,
delegated to certain o f the regular civil courts o f the colony. By the
amendment o f that year, however, the court of arbitration, which has.
always been the sole authority in the making o f awards, became the
sole authority also for their enforcement.
In the November amendment of 1903 are two provisions designed to
prevent the defeat o f an award through combined action on the part
o f employers or workers, or through the dismissal of employees by
employers. The one of these (sec. 5) provides that—
I f during the currency o f an award any employer, worker, indus
trial union or association, or any combination o f either employers or
workers, has taken proceedings with the intention to defeat any o f the
provisions o f the award, such employer, worker, union, association, or

GOVERNMENT INDUSTRIAL ARBITRATION.

469

combination, and every member thereof, respective!}7, shall be deemed
to have committed a breach of the award and shall be liable accord
ingly.
The other provision (sec. 6) specifies that—
Every employer who dismisses from his employment any worker

by reason merely o f the fact that the worker is a member of an indus
trial union, or who is conclusively proved to have dismissed such
worker merely because he is entitled to the benefit of an award, order,
or agreement, shall be deemed to have committed a breach of the
award, order, or agreement, and shall be liable accordingly.
JURISDICTION.

The law enumerates the matters which may be the subject of
disputes under it, but suffice it to say that no subject o f industrial
disputes outside of indictable offenses is beyond the law’s jurisdic
tion. In 1900 an attempt was made to overthrow the arbitration
court’s authority to deal with the question of preference to unionists
over nonunionists in employment.^) The employers in a case made
application to the supreme court of the colony to prevent the arbitra
tion court from awarding preference in employment to the unions
involved, on the ground that that question was beyond the jurisdiction
of the arbitration court. The supreme court decided against the
employers, who then carried the matter to the court of appeals, only
to find the authority of the arbitration court again sustained. In the
chief justice’s opinion it was declared that “ every kind o f possible
dispute that can arise between an employer and his workmen ” was
within the scope o f the laW.(&) Concerning the particular subject
involved in this appeal, Parliament left no further room for question
by mentioning it specifically in the consolidation act as under the
jurisdiction o f the law.
A ll industries are under the law. Previous to 1900, however, just
what the term “ industry ” included was not clear. In 1899 and 1900 the
arbitration court decided that a grocers’ assistants’ union and a tram
drivers’ union could not bring cases before it on the ground that the
sale and distribution of merchandise and the transportation of pas
sengers were not industries within the meaning of the law .(c) This
decision, which turned entirely upon the definition of the word
“ industry,” was criticised at the time, however, as being too narrow,
and the act o f 1900, together with the amendment of 1901, swept
« Cf. Report of the New Zealand Department of Labor, 1900, p. iii.
^ Awards, Recommendations, Agreements, etc., made under the Industrial
Conciliation and Arbitration Act, published by the New Zealand Department of
Labor, Vol. I, p. 305.
c Awards, etc., Vol. I, pp. 275, 279.

470

BULLETIN OF THE BUREAU OF LABOR.

away this restriction and put the broadest possible interpretation
upon the term by specifying as included under it “ any business,
trade, manufacture, undertaking, calling, or employment in which
workers are employed,” and defining “ workers ” as “ any person of
any age or either sex employed by any employer to do any skilled or
unskilled manual or clerical work for hire or reward.” (a)
A ll government departments are specially exempted from the law,
except that the government railways are under the jurisdiction o f the
court o f arbitration in the same manner as private industries, but not
within the jurisdiction o f boards o f conciliation. ( 6)
The law’s jurisdiction extends not only to disputes within any
given industry touching the conditions therein, but covers also dis
putes between employers and work people in “ related industries.”
Industries are “ related,” according to the terms of the act, when they
are “ so connected that industrial matters relating to the one may
affect the other. Thus, bricklaying, masonry, carpentering, and
painting are related industries, being all branches o f the building
trade, or being so connected as that the conditions of employment or
other industrial matters relating to one o f them may affect the
others.” ( c) The governor o f the colony may from time to time de
clare industries to be thus related, or in the case o f any particular
dispute the court o f arbitration has power to declare industries re
lated. The inclusion o f this class o f disputes under the law is an
extension o f jurisdiction made by the act o f 1900. Its effect is to
enable employers or work people in one industry to demand o f those
in other industries such conditions as shall not injure the conditions
secured in their own trade, and the statute expressly stipulates that
even though such a dispute were between a labor organization and
employers none o f whose employees were members o f the union it
would be within the law’s jurisdiction.
One limitation upon its jurisdiction is fundamental to the New
Zealand system, namely, its restriction to disputes involving labor
organizations registered under the arbitration law. Organization of
labor is, in fact, the foundation o f the system. The title o f the
original law o f 1894 was “ An act to encourage the formation o f
industrial unions and associations, and to facilitate the settlement o f
industrial disputes by conciliation and arbitration,” and though the
first half o f that title was dropped by the amendment of 1898, the
statute now, as formerly, begins with provisions for the registration
a Act o f 1900, sec. 2.
a The original act of 1894 included governmnet railways, as now, but a change
in their administration from commissioners to a minister took them out from
under the law until the consolidation act of 1900 expressly included them again
under the new form o f administration.
c Act of 1900, sec. 23 (2 ).

GOVERNMENT INDUSTRIAL ARBITRATION.

471

o f unions. These follow closely, as before indicated, similar pro
visions in the South Australian arbitration law ,(a) and their purpose
is the same, namely, to enable unions to put themselves under the
jurisdiction o f the law and to make them responsible bodies for the
purposes o f compulsory agreements and awards. Registration is
absolutely voluntary, but a registered union becomes, for the pur
poses o f the arbitration act, “ a body corporate* by the registered
name, having perpetual succession and a common seal until the regis
tration is canceled.” ( *6) I f may hold real estate, sue and be sued,
and its officers may sue any member for fines and dues.
The above statement that the law applies only to disputes in which
unions registered under it are concerned, is true now and has been
since the act o f 1900. Before that the law covered also disputes
involving any union registered under the Trade-Union Act o f 1878.
Registration under this latter act, which is entirely voluntary, simply
enables unions to hold real estate and makes the trustees o f a union’s
funds responsible therefor to the organization, and, so far from
increasing a union’s responsibility, expressly exempts it from any
legal liability under agreements and exempts its members from any
liability for dues. As will be seen below, in connection with the sub
ject o f extension o f awards, the New Zealand system does at present
involve, under certain conditions, the enforcement o f awards upon
unions registered only under the Trade-Union Act o f 1878 and not
under the arbitration act. But since 1900 only the unions registered
under the latter law may bring disputes before the boards or court,
and it has always been true that only such may have a voice in naming
the members o f such boards or court. While the privileges of the
system, so to speak, are thus limited to those work people who are
organized and who register their unions under it, it is made easy for
the unorganized to secure those privileges since any 7 of them may
form a union and register under the law .(c)
The same provisions for organization and registration apply to
employers as well as work people, any two persons,(d) even a single
firm with two members, being sufficient to register under the act as an
employers’ union. The fact o f registration, however, makes no differ
ence whatever as to the jurisdiction of the law over employers, the
unregistered being just as free to refer disputes for settlement and as
a Cf., pp. 536, 537. The only Important variation from the South Australian
provisions lies in the omission of fines, summarily recoverable before magis
trates, for the infraction o f a union’s rules by its members.
6 Act of 1900, sec. 7 (1 ).
c The law o f 1894 made the number 7, which was changed to 5 by the amend
ment of 1895 but restored to 7 again by the act of 1900.
&The number was originally 7, but was reduced to 5 in 1895 and finally to 2 in
the act o f 1900.

472

BULLETIN OF THE BUREAU OF LABOR.

subject to awards as the registered. The one difference in the status
of the two under the law lies in the fact that only registered employ
ers may vote for members of the boards and court.
E XTENSION OF AWARDS.

The parties to proceedings before the court of arbitration and those
who are subject to its awards are not necessarily the same under the
present law. Originally awards were compulsory simply upon such
of the parties to proceedings as were named in it. But a most impor
tant extension was given to the jurisdiction of awards by the consolida
tion act o f 1900 and the amendments o f 1901 and November 20, 1903.
The law o f 1900 provided in the first place that awards 44by force o f
this act shall be binding upon every registered union and every
employer who, not being original party thereto, is at any time while
the award is in force connected with or engaged in the industry to
which the award applies within the industrial district to which the
award relates.” (a) Taken by itself, the language o f this provision
would seem to have but one possible meaning, namely, that an award
always covers throughout its term the entire industry and industrial
district in which it is rendered, no matter how many of those in the
industry or district may have been parties to the proceeding before
the court. But the secretary for labor, in his 1904 report,(*6) states
tfyat opinions concerning this provision, even legal opinions, are decid
edly at variance. 64 Some read this section,” says the secretary, 44as
implying that only those employers cited in the award are under its
provisions, holding that it is unfair to bind a person who has not
received notice that he was pecuniarily interested in the case. Others
hold that the section binds all employers in the district, whether
cited or not, whether original parties or not, and that the unfairness
lies on those who would bind certain employers and leave others free
to pay what wages, etc., they choose.”
The secretary stated also that there had even been cross-rulings in
the court o f arbitration on the subject, but a decision given by the
court on May 27, 1904, ( c) puts beyond question the later attitude o f
the court on the question, and shows that its position, which, so far
as actual practice is concerned, is, of course, controlling, considerably
modifies the apparent meaning above noted. The court holds that
under the provision quoted an award does bind automatically any
employer who, after the award has come into existence, enters upon
business in the industry to which the award relates, but that in respect
o f those already engaged in the industry before the reference, an
a Act

of 1900, sec. 86 (3 ).
&Report o f the New Zealand Department of Labor, 1904, p. v.
c Awards, etc., V, p. 190.

GOVERNMENT INDUSTRIAL ARBITRATION.

473

award applies only to such as were cited as parties to the proceedings.
Because o f the importance of the question involved, the grounds for
this decision o f the court are worth noting. These were not found in
the provision itself—the court conceding “ that, looked at singly, it
is widely enough worded to include in terms persons already engaged
in the industry ”—but in general considerations of justice and of the
general scheme o f the arbitration law. “ I f this subsection,5’ said
the court, “ is to be read as binding a person who was not made a
party to the proceedings, its operation is manifestly unfair and con
trary to all our ideas of the proper mode of forming binding judg
ments. It is the first and most important rule insisted upon by all
courts o f justice that all persons who are to be bound by a judgment
shall have an opportunity of being heard before it is pronounced.”
Examining the statute, therefore, to discover whether such a pal
pably unfair provision must nevertheless be accepted, the court found
on the contrary that all the necessary proceedings down to the actual
rendering o f an award are binding solely on the parties cited, and
are “ substantially the same as those to obtain a judgment of any
court acting in personam; ” that the award “ when formed has the
nature and characteristic of a judgment between the parties, resem
bling in this respect other classes of statutory awards with which our
law is fam iliar; ” and throughout the rest of the act “ nothing is
found to lead to a suggestion that an award is either in the nature o f
a judgment in rem binding all persons, whether parties or not, or o f
a law binding a particular industry and the parties engaged in it
without naming them.” Therefore, since the legislature could have
made its meaning perfectly clear by a few words, if it had intended
that parties should be bound without being named, it must be con
cluded that it purposely-abstained from using these words. The court
held that the position of the employer coming into a district to start
business was quite different, declaring that “ the language o f the
section aptly and without unfairness ” applied to him, since “ it
is no hardship to enact that any person who enters into business shall
be charged with the duty of ascertaining what awards are in existence
affecting that business just as he finds himself obliged to inquire as
to all acts o f Parliament and all other incidents affecting it.”
Interpreted in the light of this decision, the above-quoted provision
for extension o f awards to all the employers in the given district
means that the court may, if it sees fit, cite all the employers of a
district in a given industry as parties to any proceeding for an award
in that industry.
In the second place, as to extension of awards, since the act of 1900
awards are to some extent binding upon unorganized working people
through a provision that awards “ by force o f this act [act of 1900,

474

BULLETIN OF THE BUREAU OF LABOR.

sec. 87, subsec. 3] shall also extend to and bind every worker who, not
being a member o f any individual union on which the award is bind
ing, is at any time whilst it is in force employed by any employer
on whom the award is binding,” and any breach of an award by such
a worker is punishable by a fine not exceeding £10 ($48.67) in the
same manner as though he were a party to the award.
Finally, in the third place, under the consolidation act of 1900 and
the amendment o f November 20, 1903, awards may be extended so as
to cover the whole of an industry throughout the colony. Such ex
tension may be made only when an award “ relates to a trade or
manufacture the products o f which enter into competition in any
market with those manufactured in the industrial district where the
award is in force.” (a) The law of 1900 specified in addition, os
necessary condition for such extension, that a majority o f the em
ployers and o f the unions in the industry should be already bound
by the award, but the 1903 amendment swept away this condition,
leaving the court free to extend an award beyond an industrial
district at its own discretion. Application may be made to the
court to extend an award by any party bound thereby. Thirty days’
notice o f such application shall be given to all other parties who will
be affected by the extension and objection may be made by any of
the latter, which objection shall be heard by the court in the indus
trial district whence it comes.
In respect to extended awards the act of 1900 observed the general
limitation o f the law to labor organizations registered under it and
permitted extension, as above indicated, only to such unions. The
amendment o f 1901 carries the matter much further by putting all
trade unions registered under the Trade-Union Act o f 1878 under the
same provisions. So that now an award in a given industry neces
sarily binds all unions registered under either law which are within
the district, and may be extended to all such within the colony.
This, as well as the above-noted application of awards to unorganized
employees, manifestly involves for the New Zealand system now,
as before 1900, the enforcement of awards upon work people who
have put themselves in no such position o f responsibility as is in
volved in the quasi incorporation o f those registered under the
arbitration law. The same thing is also involved in another pro
vision o f the 1901 amendment, which permits trade unions under
the 1878 act to make industrial agreements enforceable under the
arbitration law, which was also true prior to 1900.
Two other additions to the power o f the court in fixing the juris
diction o f awards were made in 1901. One o f these permits an ex
ception to the general rule that awards shall apply throughout an
« Amendment o f November 20, 1903, sec. 4.

GOVERNMENT INDUSTRIAL ARBITRATION.

475

industrial district by allowing the court to limit an award’s operation
to a city, town, or part of a district, but in such case the court may
afterwards, on applieation from any employer or union registered
under the arbitration act within the district, extend the award to any
person, employer, or registered union in the district. The other addi
tion provides that where workers engaged upon different trades are
employed in the general business of one employer the court may make
an award covering the whole or any part of the business, provided due
notice has been given to all the registered unions engaged in any
branch o f it.
DEPENDENCE UPON ATTITUDE OF ORGANIZED LABOR.

This fact has been indicated already, perhaps, bqt will bear em
phasis, as it is absolutely essential to a correct idea of what the New
Zealand law attempts to do. There is nothing in the system requiring
the settlement o f disputes under it if neither employers nor work peo
ple so desire. One party at least must be favorably disposed and refer
its disputes to it if it is to be operative at all. But more than, this,
the one party which must be favorable is the work people. Employers
are within the law’s jurisdiction whether they choose to be or no,
and must, therefore, submit to proceedings under it if the workers so
will. But the work people are subject to the system only as they are
organized and their unions register under it, which is a purely vol
untary matter for them. Manifestly, therefore, until organized labor
chose to register, the system could never come into operation, how
ever much employers or the Government might desire its use. But it
is equally true that after labor organizations have once registered and
the system is in operation its continuance in use is also dependent
upon their will, for any union is free to cancel its registration at any
time except during actual proceedings under the law in which it is
concerned. Such cancellation would not, indeed, free it as a body or
its members individually from the binding force of agreements or
awards already made, as the law expressly declares; but it would
free them from the possibility of future awards or proceedings and
would limit the force of those already made to three years or less, as
that part o f the law making awards and agreements binding beyond
the term specified in them reads that they shall so continue “ except
where * * * the registration of an industrial union of workers
bound by such award (or agreement) has been canceled.” (a) The
New Zealand compulsory arbitration law is absolutely dependent for
its operation, therefore, upon a favorable attitude toward it on the
part o f organized labor.
a Act o f 1900, sec. 24 (4 ), and 86 (1) (d ).

476

BULLETIN OF THE BUREAU OF LABOR.
OPERATION OF ARBITRATION SYSTEM. («)

The law went into operation slowly. It was in force from January
1) 1895, but it was not till May, 1896, that a dispute was referred for
settlement under it. Meanwhile, however, the colony had been divided
into seven industrial districts, the arbitration court had been ap
pointed, and conciliation boards formed. In case of the latter it
was necessary in several instances for the governor of the colony to
exercise the power conferred upon him by the act and fill vacancies by
direct appointment, employers having failed to elect their members.
REGISTRATION OF U N IO N S.

The table below showTs the number of unions registered under the
arbitration law for the alternate years since the law went into
force:
MEMBERSHIP OF EMPLOYERS’ AND WORKERS’ UNIONS, NEW ZEALAND, 1896
TO 1904.
[Figures for 1896 to 1902 compiled by Dr. Victor S. Clark from returns to Parliament by
the registrar (Bulletin of the United States Bureau of Labor, No. 49, p. 1226) ; for
1904, Annual Report of Department of Labor, 1904, p. viii.]
Number and membership of registered unions.
Year.

Employers’
unions.

Workers’
unions.

Num Member Num Member
ber.
ship.
ber.
ship.
January 1,1896....................................... .........
January 1,1898.................................................
January 1,1900....................................... ........
January 1,1902.................................................
March 31,1904...................................................

1
12
33
68
106

15
849
ft11,586
1,824
3,080

75
103
133
219
266

8,230
12,515
14,481
23,768
27,640

Total.
Num
ber.
76
115
166
287
372

Member
ship.
8,245
13,364
ft26,067
25,592
30,720

« The following are the chief sources which have been used in the preparation
of this part of the report, all of these being either official New Zealand docu
ments or reports o f official or private investigations made in New Zealand byinvestigators from other countries. The first six are the most important sources
for the subject:
New Zealand Department of Labor, Awards, Recommendations, Agreements,
etc., made under the Industrial Conciliation and Arbitration Act, published in
annual volumes.
New Zealand Department of Labor, Annual Reports.
The Monthly Journal of the Department o f Labor.
Judge Alfred P. Backhouse’s Report o f the Royal Commission of Inquiry into
the Working of Compulsory Conciliation and Arbitration Laws, Sydney, New
South Wales, 1901.
Report of the Royal Commission Appointed to Investigate and Report on the
Operation of the Factories and Shops Law o f Victoria, presented to the Parlia
ment of Victoria, Australia, in 1903, pp. xiv-xxvi.
Victor S. Clark, Ph. D., Labor Conditions in New Zealand, in Bulletin No. 49
(November, 1903) of the United States Bureau of Labor, being the results of
an official investigation for the Bureau made by the author in New Zealand.
W. P. Reeves, The Long White Cloud, pp. 386 et seq.
H. D. Lloyd, A Country Without Strikes (1900 ed.).
Sidney and Beatrice Webb, Industrial Democracy, Introduction to 1902 edi
tion, pp. xliv et seq.
ft Shareholders in companies included.

GOVERNMENT INDUSTRIAL ARBITRATION.

477

Labor organizations registered in considerable numbers very soon
after the law went into effect. Sixty-one such unions registered dur
ing the first nine months under the law, and its author, Mr. W. P.
Peeves, asserted in Parliament that they represented the “ pick and
flower o f the labor of the colony.” (a)
The increase in number of registered labor unions was about the
same from 1898 to 1900 as it was from 1896 to 1898, but represented
a* much smaller gain in the total membership of registered unions.
The large gain, both in number and membership o f registered trade
unions from 1900 to 1902, was due in part to a rush to register by those
in transportation and mercantile trades as soon as the passage of the
act o f 1900 put beyond question the jurisdiction o f the law over them.
Taking into account this special reason for growth in registration by
labor organizations from 1900 to 1902, it can not be said that the last
two years, 1902 to 1904, show any weakening o f the inclination o f
the laboring class to support the system, as indicated by their enroll
ment o f themselves within its jurisdiction by registration, but rather
the contrary, if comparison be made with the years prior to 1900. ( *6)
Employers, in contrast to work people, were slow to actively sup
port the system by registration. But while only 12 employers’ asso
ciations were registered three years after the law went into force,
succeeding years have shown a wider tendency of this class to regis
ter, and the increase in the number o f their registered unions was
greater in the last two than in any preceding two years.
A few local or national federations o f unions have been registered
under the law. Thus, in 1904 there were 17 such, o f which 14 repre
sented workers and 3 employers. (c) Most, if not all, of their con
stituent unions, however, were registered individually.
The increase in number o f registered unions shown in the table
above is net, as there have been some withdrawals from registration.
Dr. Victor S. Clark (d) gives figures based on the registrar’s returns
ta Parliament, which show that for 1896 to 1902, 43 unions were
dropped from the rolls, 26 by voluntary cancellation and 17 by allow
ing their registration to lapse.
Just what proportion of the work people and employers in the
colony are now registered under the law it is impossible to say.
Judge Backhouse, the New South Wales commissioner, who was in
New Zealand in 1901 to investigate the working of the system, re
ported that then there was “ still a large number of the workers ” and
a Lloyd, A Country Without Strikes, p. 32.
6 A somewhat different opinion, expressed in the report of the Victoria com
mission (p. x x i), is erroneous, due to the incorrect figures there used.
o See list o f unions registered up to September 30, 1904, in the October, 1904,
Journal of the Department o f Labor.
d Bulletin of the United States Bureau of Labor, No. 49, p. 1226.

478

BULLETIN OF THE BUREAU OF LABOR.

“ a very large percentage of employers ” who were outside of any reg
istered organization. (a) Doctor Clark, ( *&) notes that the New Zea
land, census o f 1901 showed a total of 132,895 employees in industrial,
commercial, and mining pursuits, and that there was less than onesixth that many members of registered workers’ unions in 1902 if
2,602 government railway employees therein be excluded. The 27,640
members o f such unions in 1904, which include many seamen, rail
way employees, miners, and employees in commercial pursuits, it may
be noted, amounted to less than half the total factory employees alone,
the latter numbering 63,968, according to the Report of the Depart
ment o f Labor for 1904. But whatever the proportion of all work
ers who have come under the law, from statements by Mr. Reeves,
author o f the law, and Mr. Henry D. Lloyd, both writing in
1900, ( c) it appears that organized labor in the colony is nearly all
registered under it and that such of the workers as are outside are
entirely unorganized.
Thus far it has been almost solely the unions o f work people who
have referred disputes for settlement under the law. The published
reports do not indicate in how many cases, if at all, employers have
made the references, but any such have certainly been rare.(d). As
already indicated in connection with the registration of unions, the
law was early received with favor by work people, while employers
held aloof from it. To this may be added that thus far the law has
operated in a period of prosperity in the colony when the work peo
ple would naturally be the plaintiffs in disputes, and, as indicated
later on, the results of references have thus far been, as a rule, suffi
ciently favorable to the workers to encourage them in further use -of
the law.
W ORK OF CONCILIATION BOARDS.

The following table shows the amount and results o f the work done
by the conciliation boards up to the end of June, 1901, or approx
imately the period (prior to the amendment of 1901) in which the
law required that disputes referred for settlement under the act must
go first to the boards o f conciliation. This is practically the record
for five boards only, the other two having had but one case each dur
ing the six years.
« Report of the New South Wales commission, p. 10.
&Bulletin of the United States Bureau o f Labor, No. 49, p. 1226.
c Lloyd, A Country Without Strikes, pp. x, 157.
a Cf. Reeves and Lloyd in A Country Without Strikes, pp. x, 108. Of twenty
cases described in the Report of the Department o f Labor for the year ended
March 31, 1898, with more detail than appears in later reports, in none was the
dispute referred by employers. Judge Backhouse states that he heard o f but
one case in which employers appealed to boards or court.

479

GOVERNMENT INDUSTRIAL ARBITRATION.

STATISTICS OF WORK DONE BY CONCILIATION BOARDS, NEW ZEALAND, 1896
TO 1901.
[Compiled from an analysis of the cases as reported in Awards, etc., Yols. I, II.]

Year ended June 30—

Total
cases be Settled
by
fore
boards. boards.

1896..............................................................
1897........................................................... 1898 .............................................................
1899..............................................................
1900..............................................................
1901..............................................................

30
33
35
46

1
3
7
9
10
13

Total .................................................

156

2
10

Oases
Percent
age of
with
to cases
Settled
or Sent
set
court.
in part. drawn
tled by
dis
missed.
boards.
1
7
2

50.0
30.0
23.3
27.3
28.6
28.3

104

27.6

3
2

23
20
22

Cases settled by the boards mean those in which the formal recom
mendations were accepted by all the parties and embodied in indus
trial agreements under the law. In two instances the recommenda
tion was accepted after some modification by the parties, and in one
o f these after the time limit for acceptance had expired. In the two
disputes settled in part in 1899 some o f the parties accepted the
boards’ findings, but the refusal of others necessitated a reference
finally to the court. The seven cases withdrawn or dismissed include
one (in 1899) in which the board recommended that no action be
taken, one (in 1901) in which the board advised the withdrawal, two
(in 1900) in which the parties withdrew of their own motion (once
after a formal recommendation had been made by the board and
once after the case had been sent to the court), and three (one in each
o f the three years) in which the dispute was sent to the court, but was
terminated outside by an agreement of the parties, in one case the
terms being arranged in an informal conference in the presence of the
court o f arbitration. Cases sent to court are those in which the
boards failed entirely and which were carried to the court for formal
award. To complete the above record o f work by boards there should
be mention o f four decisions rendered by chairmen of boards, during
1901, upon points which existing awards or agreements directed
should be referred to them.
Since the amendment o f 1901 made it possible to pass by the boards
entirely in references under the law, the number of cases referred to
boards has rapidly decreased, so that for the year ended March 31.
1904, the conciliation boards had but 15 cases before them, and two of
these were not original disputes, but cases of interpretation of exist
ing awards or industrial agreements. “ The result of the statutory
amendment made in 1901,” says the secretary for labor, (a) “ has been
to practically suspend the operations of the boards.”
Two-thirds o f the disputes referred to the boards have failed en
tirely o f settlement and have been transferred to the court for an
®Report of the New Zealand Department o f Labor, 1904, p. vii.

480

BULLETIN OF THE BUBEATJ OF LABOR.

arbitration award. This is a far different result from that hoped for
by the author o f the law, who expressed the opinion in Parliament,
when the bill for the original act was being debated, that ninety cases
out of one hundred would be settled by the boards. (°) Comparing
one year with another, the actual number of cases settled by the
boards increased slowly throughout the period covered by the table
above, but the proportion o f settlements to total disputes referred
shows no marked increase save that in the last three years it was con
siderably higher than in 1898, which, however, appears to have been
an exceptional year. The percentage was but slightly higher for
1900 than for 1899, and for 1901 was no higher than the year before.
The proportion of settlements effected by the different boards varies
considerably, as indicated by the following table given by Doctor
Clark, which shows the number of disputes settled by the board
and the number settled by the court in each district down to June 30,
1902:
DISPUTES SETTLED BY BOARDS OF CONCILIATION AND BY THE ARBITRATION
COURT IN EACH DISTRICT, NEW ZEALAND, APRIL, 1896, TO JUNE 30, 1902.
[From Bulletin of the United States Bureau of Labor, No. 49, p. 1191.]
Number of cases settled—
District.

Ry
board.

By
court.

Total.

Auckland................................................- ................... ...................................
Wellington.....................................................................................................
Canterbury..................................................................... ..............................
Otago and Southland....................................................................................
W estland.........................................................................................................

19
5
10
16
4

IT
41
40
41
4

36
46
50
57
8

Total..................................................................... .................................

143

197

Several causes have contributed to the failure o f boards to settle
a larger proportion of disputes. One connected with the constitu
tion o f the boards lies in the fact that being permanent and consist
ing o f but five members they are frequently called upon to consider
disputes in trades with which few or none o f their members have any
intimate acquaintance, and that the assistance o f experts for such
cases as provided in the law is costly and slow. As the secretary
for labor put i t :
Much time is now wasted wtien, say, a tailor, a baker, a butcher, and
a carter, with a clergyman or lawyer in the chair, have to decide on
technical points o f dispute concerning, say, bootmakers, wharf labor
ers, or printers. ( 6)
It would seem that special boards appointed as disputes arose, for
which the law has always provided, would have met such difficulties.
But as a matter o f fact no such special boards have ever been called
in. The requirement (prior to the amendment of 1901) that both
®Cf. Lloyd, A Country Without Strikes, p. 30.
t Report of the New Zealand Department o f Labor, 1900, p. iv.

GOVERNMENT INDUSTRIAL ARBITRATION.

481

parties must consent to the naming of such a board may have hin
dered their utilization and it is said (a) that the work people have
objected to them for fear that those who served on them would be
blacklisted by employers and that there has been opposition on the
ground that after a dispute has developed the parties are likely to
name for members strong partisans, so that no conciliation could be
hoped for from such boards. Another reason given for the non
employment o f special boards is that too much effort is required to
put into motion the cumbersome machinery for constituting such
boards. ( *6*9
)
A second obstacle to the success of boards has to do with the char
acter o f the members elected to them. According to Judge Back
house ( c) the chairmen of some boards have lacked entirely the
qualities o f tact, impartiality, etc., requisite for the position, and
some of the members have considered it proper to champion one side
or the other in disputes in a partisan manner both within the board
and outside. Still worse, it appears, according to the same authority,
that disputes have even been fomented by members in some instances
with a view to securing the fees allowed them for each sitting of the
board. (d)
A third handicap upon the work of boards has been the style of
procedure adopted by some of them.(e) Instead of informal con
ference there has been formal argument by each side after the man
ner o f arbitration proceedings,* which would seem to have been the
result o f attaching more influence to formal recommendation by the
board than to facilitating conciliation between the parties them
selves.
Fourth, the failure of employers, in large measure, to register under
the law and elect members to the boards has been a source of weakness,
pointed out by both Judge Backhouse (a) and Mr. Reeves. (?) In
these cases members are named by the Government, but such would
naturally have less influence with employers than members named by
themselves. ( 0)
Finally, in the fifth place, many cases have been foredoomed to
failure in the boards because one or other of the parties intended from
the outset to carry the case to the court of arbitration, whatever the
« Judge Backhouse, report of the New South Wales commission, p. 12.
&Clark, Bulletin o f the United States Bureau of Labor, No. 49, p. 1195.
c Report o f the New South Wales commission, p. 11.
&Cf. also Clark, Bulletin of the United States Bureau of Labor, No. 49, p. 1190.
<*Cf. Judge Backhouse, report of the New South Wales commission, p. 12,
and Reeves, The Long White Cloud, p. 390.
f The Long White Cloud, p. 389.
9 Cf. also report of the Victoria commission, p. xiv.
50—No. 60—05

M ------ 7

482

BULLETIN" OF THE BUREAU OF LABOR.

boards’ recommendations might be. The secretary o f labor reported
in 1898 that “ much time is now wasted” before boards on just such
cases, and again in 1900 pointed out the same difficulty. (a) So far as
employers have taken this attitude, it would seem to have arisen from
distrust o f the boards, inspired by the causes above noted. The same
consideration may also have influenced work people in this matter,
but it would appear that the motive to such action with them has been
to a considerable extent entirely different, and goes back to the fact
previously noted that appeals to the law frequently occur when there
is no special controversy on between employers and employees, and
simply for the purpose of securing uniform regulations or “ common
rules ” in a trade, or to try for some betterment of conditions by pro
ceedings under the law. For either of these ends what would be
sought would be an award of the court, for whatever that granted
would necessarily be binding, while nothing could be gained before a
board to which the other party did not agree, especially prior to 1900,
when no recommendation of a board was of itself binding. It may be
added that the large power to extend awards conferred on the court
by the acts o f 1900 and 1901 would seem to offer greater inducement
than ever to use the law for the establishment of “ common rules,” and
hence to aim solely at securing court awards. ( *6)
Over against the above unfavorable side of the boards’ record it
may be noted in their favor that in the period to 1901 they after all
disposed successfully of more than one-fourth of the disputes referred
for settlement under the law. Judge Backhouse, after his investiga
tions, expressed the opinion that the boards, “ as a whole, had done
much good work,” and found that some of them were “ held in the
highest repute.” He points out that even in cases sent to the court
the proceedings before the board were frequently far from useless, as
they had involved a thorough threshing out of the facts, which proved
o f great assistance to the court later, in some cases the boards’ recom
mendation being practically adopted in the award, and quotes the
opinion o f the president of the court in 1901 to the effect that the
boards are a “ very necessary ” part of the system. To this may be
added the statement of the secretary of labor, writing in 1902, that—
So carefully and well have conciliation boards in many cases
worked in this colony, so many are the occasions in wThich they have
wiped out dozens o f disputed points (leaving a few only for the arbi
tration court), sifted evidence, and given recommendations only
requiring adoption by the higher court, that very many, if not the
« Report of the New Zealand Department o f Labor, 1898, p. v ; 1900, p. iv.
&The proportion of cases carried to the court was, in fact, as previously noted,
higher in the year ended June 30, 1901, than in any other year save 1898, and
the law o f 3900 went into force in October, 1900.

GOVERNMENT INDUSTRIAL ARBITRATION.

483

majority, o f people who have really studied the subject would view
the abolition of the boards with regret. (a)
Notwithstanding all that could be said for the boards, experience
with them and their failure to settle more than one in three disputes
early led to proposals to amend the law with reference to them, some
of wffiich advocated their total abolition. Out of these came the
amendments already noted,(&) by wdiich (1) in 1900 the recommenda
tions o f boards vTere made compulsory unless appealed from ; (2)
since 1901 special boards are to be appointed whenever one party
so desires, and (3) since 1901, also, it is possible to pass the board
entirely and begin the case in the court. The second of these, it
vTill be seen, is aimed at the first of the difficulties in the work of
boards above mentioned and is calculated simply to increase the
chances o f successful conciliation; but the other tw o are of very d if
ferent significance, and so far from facilitating conciliation they are
both designed solely to enlarge the arbitration possibilities o f the
statute, inasmuch as formal recommendation of a board uncondi
tionally compulsory, unless appealed from, amounts practically to an
arbitration award.
Doctor Clark ( c) reports that opinion in New Zealand “ as to the
wisdom of practically superseding the boards is divided, and neither
workingmen nor employers are agreed as a body on the subject,” and
cites a great many opinions from a variety of sources illustrating this
diversity o f viewT. He notes, however, the interesting fact (d) that
it was the employers who were responsible for the amendment of 1901,
permitting direct reference to the court without recourse to the
boards, and that they insisted on its passage against the opposition
of the labor politicians.
WTORK OF COURT OF ARBITRATION.

Experience has revealed no such difficulties as to constitution and
procedure in case of the court of arbitration as have been noted in
the record o f the conciliation boards. Judge Backhouse found
“ generally the greatest satisfaction expressed ” wTith the composi
tion and proceedings o f the court. The later report o f the Victoria
commission put on record its opinion “ of the high character of
this arbitration court and o f the care and thoroughness w-ith which
its varied duties are carried out.” It will be recalled that a justice
o f the supreme court of the colony, as chairman, is always the final
a Report of the New Zealand Department o f Labor, 1902, p. y.
®Supra, pp. 464-466.
c Bulletin o f the United States Bureau o f Labor, No. 49, p. 1192.
d Noted also in the report o f the Victoria commission, p. xv.

484

BULLETIN OF THE BUREAU OF LABOR.

authority in the court of arbitration, and the New South Wales
commissioner found that all parties most emphatically approved of
this, and that it was agreed that no other than an active member of
the supreme court bench, the highest court o f the colony—no judge
appointed purely for the purposes of the arbitration law, from what
ever class— could so acceptably fill the position of president o f the
court. This was the verdict after experience under five different
justices in the position. Favorable testimony also concerning the
two members chosen by employers and work people is given by the
Victoria commission to the effect that “ it is admitted on all sides
that the two lay members have invariably exercised their functions
with strict impartiality as well as ability, and have thus given the
public confidence in the industrial law which they assist to inter
pret.”
The law left the court entirely free to choose its own mode of
procedure. In general it may be said that directness and simplicity
have characterized it. Primarily, o f course, the proceedings con
sist o f hearings for the ascertainment o f facts and the formulation
o f awards; but to this arbitration work the court has added much
in the way o f conciliation, its regular practice being to aim at an
understanding between the parties as well as an equitable decision,
for which purpose it is not unusual for the president of the court,
at the request o f parties, to confer with them outside of hearings.
Judge Backhouse reports (a) that frequently the court’s conciliatory
efforts bring the-parties to an understanding, in which cases mani
festly the awards are practically accepted before they are rendered.
Counsel are permissible by the law only as both parties consent
thereto. As a matter o f fact such consent has been rare, the workers
especially objecting, and as a rule the cases are conducted entirely
by the parties’ representatives directly concerned. The Victoria
commission suggests as the reasons for this objection to counsel the
tendency o f their employment to prolong and increase the cost of
proceedings before the court. To the general practice o f excluding
counsel the court has made an exception in proceedings for enforce
ment o f awards, on the ground that the necessity o f settling legal
points in such cases makes hearing o f counsel desirable, although
the employees are opposed to it even in such cases.
The court’s large powers as to the production o f books and docu
ments have been so exercised that Judge Backhouse could report that
he found no serious objection to it on the part o f any employer with
whom he spoke. The point at which the gravest abuse o f the court’s
power could occur, namely, allowance o f inspection o f books by par
ties, is closely guarded by the court, if one may judge by the defini
a

Report of the New South Wales commission, p. 14.

GOVERNMENT INDUSTRIAL ARBITRATION.

485

tion o f its position in this matter given by the president in May, 1901,
to the effect that—
A very strong case would have to be made by any party before the
court would allow the books o f an employer to be inspected by any
other person. It is, o f course, impossible to say that the court would
in no case exercise its discretion, but the principle on which the court
will act will be that no inspection of books produced to the court will
be allowed to any o f the parties unless the court is first satisfied that
such inspection is absolutely essential in the interests of justice, and
that it will be only in cases of the most extreme necessity that such
power will be exercised. (a)
Doctor Clark reports that in practice the court visits the offices
of employers when it is necessary to inspect a firm’s books, and that
information so obtained is in the confidence o f the court. The same
investigator notes also that the court customarily avails itself of its
right to enter and take evidence in work places in order to ascertain
the conditions o f work in an industry. The provision for calling in
expert assistants the Victoria commission reports is seldom availed of
by the court, and the commission intimated that experience with
them had not encouraged their use, instancing a case in 1902 in which
the court, in announcing its decision in a bookbinders’ dispute, said:
The court has experienced
to making its award in this
experts; but, unfortunately,
item, instead o f assisting the

very considerable difficulty in reference
dispute. It had to call in the help of
the experts have disagreed upon every
court to arrive at a decision. (**&)

One serious practical difficulty in court proceedings has developed
in later years through the growth o f the court’s business to such an
extent as to cause much delay in the disposition of cases. Although
the law (sec. 84, act of 1900) provides that the award shall be made
within one month after the court begins a case “ or within such
extended time as in special circumstances the court thinks fit,”
instances were reported to the Victoria commission (1902) in which
nine to twelve months had elapsed between the hearing of a dispute
and the award. The Report of the Department of Labor for 1903
(p. iv) points out this congestion of the court’s work, remarking
that—
The court has made herculean efforts to overtake the large number
o f cases brought before it, and has been incessantly in motion from
one end o f the colony to the other; but the variety as well as the
importance o f the subjects engaging its attention, have prevented the
delivery o f awards with the celerity which suitors awaiting decisions
with anxiety naturally desire.
o Quoted by Judge Backhouse, report of the New South Wales commission,
p. 15.
&Report o f the Victoria commission, p. xvii. Cf. also Report o f the New
Zealand Department of Labor, 1902, p. 5, and Awards, etc., I l l, p. 349.

486

BULLETIN OF THE BUREAU OF LABOR.

And the report for 1904 (p. iv) states that—
There are continual complaints made as to the delays in hearing
cases caused by the accumulation of work in the arbitration court.
Several causes have contributed to increase the amount o f work
to be done by the arbitration court. In. the first place, besides the
natural increase in number of references, which wTas to be expected as
the law became known and more fully applied to the disputes natu
rally arising in the industrial world, it appears that, as noted more
fully later on,(a) the very possibilities of the law itself have incited
to the creation of issues simply for the purpose of securing a reference
under the law and invoking its powers.
As already indicated in the table showing the work of conciliation
boards up to 1901,( &) the number of formal disputes sent up from the
boards to the court increased from 7 in the year ended June 30, 1897,
to 31 in the year ended June 30, 1901. The summaries of work done
by the court, published by the department of labor,(c) show still
larger numbers for 1902 and 1903, since during the fourteen months
from April 22, 1901, to June 13, 1902, the court gave hearings in 67
different disputes, and in the next ten months to April 25, 1903, heard
47 disputes, or, proportionately to the length of period, as many as
in the preceding fourteen months. The report of the department of
labor for 1904 gives a summary o f the court’s work for the year
ended March 31, 1904, but in somewhat different form from that of
the two earlier years, so that instead o f figures for total disputes
heard, comparable with those above, only the number of awards ren
dered by the court (25) is given.
Secondly, with the increase in number of existing awards and
agreements under the law, the number of enforcement cases and cases
o f interpretation, amendment, or extension of awards or agreements
has naturally increased. Enforcement cases have, in fact, increased
very greatly in numbers, there having been 12 such before the court
in the year ended June 30, 1900, 58 during the fourteen months from
A pril 22, 1901, to June 13, 1902, and no less than 121 during the year
ended March 31, 1904. O f interpretation and other cases under the
arbitration law, there were 16 in the fourteen months from April 22,
1901, to June 13, 1902, 16 during the ten months June 13, 1902, to
A pril 25, 1903, and 21 during the year ended March 31, 1904.
In the third place the amendment of 1901, which enabled parties to
pass boards and refer direct to the court in the first instance, has
increased the work o f the court either by bringing to it the disputes
which might formerly have been settled by the boards or depriving
« See p. 487.
&Cf. supra, p. 479.
o Reports o f the New Zealand Department o f Labor, 1902, p. x x v ; 1903, p.
xxvi.

GOVERNMENT INDUSTRIAL ARBITRATION.

487

the court o f the time gained by the preliminary sifting of cases in the
boards. (a) This is the cause given most prominence by the secre
tary for labor in this connection, his report for 1903 (p. iv ), remark
ing that—
A t present, either through the wish to win time and prevent change,
* * * or through desire for economy in only appearing once in a
case instead o f twice, the power of initiating proceedings in the higher
court is fully taken advantage of, the conciliation boards have little
chance o f exercising their functions, and the court has its hands
overfull.
In the fourth place, the Workers’ Compensation for Accidents Act
o f 1900 provided that any questions under that law which can not be
settled by agreement shall be settled by the court of arbitration in
the same way as an industrial dispute. The court heard 17 of these
cases in the fourteen months—April 22, 1901, to June 13, 1902; 20 in
the next ten months, to April 25, 1903, and 19 during the year ended
March 31, 1904.
That the overburden of work in the arbitration court is generally
recognized as a serious evil is evidenced by the remark o f the secre
tary for labor in 1904 ( *6) that “ many resolutions passed by socie
ties and suggestions of private individuals have been sent to the
department o f labor in the direction of easing* the work o f the
arbitration court by allowing stipendiary magistrates to adjudicate in
minor cases o f breach of award.” Besides the remedy thus proposed
the secretary suggests another through the “ appointment o f another
judge o f the supreme court, which would, by easing off the work
o f the court o f appeals, sensibly assist the arbitration court,” whose
president has his share of work to do in the court of appeals as well
as in the arbitration court.
The awards of the court are usually put in the form of a schedule,
drawn in the same manner as any agreement between employers and
employees, to which is prefixed the court’s declaration o f the parties
to be bound by it, the date and length of its term, and the limit o f
penalties for its infraction. The schedule may include anything from
a single item in the terms o f employment to, as is frequently the case,
all the conditions in detail for a trade.
Thus far nearly all of the court’s decisions have been in some meas
ure favorable to the employees. It is impossible, from the nature of
the reports, to quote exact figures upon this point, but the secretary
for labor is authority for the statement made in 1900 that the em
ployees have gained some advantage in about nine out of ten cases. (c)
o Cf. supra, p. 486.
&Report of the New Zealand Department o f Labor, 1904, p. iv.
c Edward Tregear in letter to the Bricklayer and Mason, November, 1900, p. 3.

488

BULLETIN OF THE BUREAU OF LABOR.

Mr. Lloyd affirms that where cases concerned increase of wages a the
applications o f the men for higher wages have been uniformly
granted, at least in part.” (a) Mr. Reeves testifies that “ most of the
decisions have granted concessions of more or less value ” to the work
m en.^) Judge Backhouse’s report in 1901 is to the same effect. ( c)
It should be said at once that there is no reason to infer that this
result in awards has been due in any degree to a priori prejudice in
favor o f labor as opposed to capital on the part of the court, or that
the latter has been influenced by any other than disinterested consid
erations o f justice and public policy. It must be remembered that
the final arbiter o f awards is always a member of the highest court
o f justice in the colony, whose social position and training would in
no wise tend to predisposition in favor o f the working classes. Fur
ther, as a matter o f fact no charge of partisan prejudice has ever
been laid against the court even by adverse critics, so far as the writer
has been able to discover.
So far as decisions have dealt with wages or allied questions the
fact that the work people have generally gained some portion of their
demands is doubtless due to the fact that the decisions have been ren
dered in an era o f good times, and concessions to the demands of labor
have been but the natural result of an impartial consideration of the
conditions o f a rising market. As the wage question always holds the
central place in industrial disputes, a large part of the favorable re
sults secured to employees by awards may be thus explained. But
prosperity can not be cited to explain such a result on one notable
question o f principle rather than remuneration, namely, preference in
employment for union members. Yet this claim is constantly coming
before the court and in the majority of cases has been conceded in
awards. Thus such preference is to be found in 48 o f the 67 awards
made up to June, 1901, and it has been granted quite as frequently in
later years for it was granted in 20 out of the 29 awards filed during the
year 1904. This is, perhaps, the most radical position that has been
taken by the court and two or three things should be noted in con
nection with it. In the first place, the court has discriminated be
tween individual cases and has not hesitated to refuse preference
where conditions did not seem to warrant it. It has been refused
most often on the ground that the unionists asking it constituted a
minority o f the workers in the trade and Doctor Clark reports ( d)
that the guiding principle o f the court seems to be that a union shall
a Lloyd, A Country Without Strikes, p. 132.
» Lloyd, A Country Without Strikes, p. x.
o Report o f the New South Wales commission, p. 25.
Bulletin o f the United States Bureau o f Labor, No. 49, p. 1217.

GOVERNMENT INDUSTRIAL ARBITRATION.

489

have the right to preference only “ when the members of the union
form, if not a literal majority, at least a dominant element in the
body o f workers employed in the trade under consideration.”
Other considerations have also led the court to disallow preference.
Thus it was refused in the case of seamen as inimical to good dis
cipline on shipboard; it was refused to a carters’ union on the ground
that so many different businesses were involved that the employers,
who were generally opposed to it, would be unduly embarrassed by
granting the preference; in another case it was refused on the ground
that the employers affected were in competition with those in other
places where the preference would not be in force; and it was denied
timber workers and dredgemen, in two different cases, on the ground
that it was impracticable because the sawmills or dredges were scat
tered over wide areas of country, and it would be too great a restric
tion upon the employers to require them to communicate with the
union headquarters some distance away whenever new hands were to
be hired. But while these examples illustrate the court’s discrimina
tion in this matter, nevertheless it must be said that they are the
exceptions after all, and preference is the general rule to the extent
o f being granted in two-thirds of the awards.
In the second place, to the preference allowed by the court impor
tant conditions are attached which appear in certain set clauses
regularly employed in awards covering this subject. (a) Thus the
preference holds only “ provided there are members of the union who
are equally qualified with nonmembers to perform the particular
work required to be done, and are ready and willing to undertake it.”
Then the unions must— .
keep, in some convenient place * * * a book, to be called the
u employment book,” wherein shall be entered the names and exact
addresses o f all members o f the union for the time being out of
employment, with a description of the branch of the trade in which
such member claims to be proficient, and the names, addresses, and
occupations o f every employer by whom such member shall have been
employed during the preceding one year. Immediately upon such
member obtaining employment, a note thereof shall be entered in
such book. The executives o f the union shall use their best endeavors
to verify all the entries contained in such book, and the union shall
be answerable as for a breach of this award in case any entry therein
shall in any particular be willfully false to the knowledge of the
executive o f the union, or in case the executive o f the union shall not
have used reasonable endeavor to verify the same. Such book shall
be open to every employer without fee or charge, at all hours between
8 a. m. and 5 p. m. on every working day except Saturday, and on
that day between the hours of 8 a. m. and noon. I f the union fail to
keep an employment book in manner provided by this clause, then
and in such case and so long as such failure shall continue any ema The quotations in this connection are taken directly from awards.

490

BULLETIN OF THE BUREAU OF LABOR.

ployer may, if lie so thinks fit, employ any person or persons, whether
a member o f the union or not, to perform the work required to be
performed, notwithstanding the foregoing provision.
So much to protect the employer. For the sake of the workmen
outside the union another regular condition permits the preference
only—
if and so long as the rules o f the union shall permit any person now
employed in the trade in this industrial district and any person who
may hereafter reside in this industrial district, and who is a com
petent journeyman, to become member of such union upon payment
o f an entrance fee not exceeding 5s. ($1.22), and of subsequent con
tributions, whether payable weekly or not, not exceeding 6d. (12
cents) per week, upon a written application of the person so desiring
to join the union, without ballot or election, and shall give notice in
writing of such amendment, with a copy thereof, to the employers.
Finally, it is the rule that preference, when granted, is not to inter
fere with nonmembers already employed. In several cases awards
have put this in express terms, ordering that the preference clause
u shall not interfere with engagements subsisting between employers
and nonunionists,” and the position o f the court upon this point was
clearly defined in a ruling by the president in 1900, thus:
Under no award wras a man ever forced into a position whereby the
employer wras compelled to discharge him. Where the unionist got
the advantage was when fresh hands were taken on. In a case of
pressure, where an employer took on a nonunionist, he was not sub
sequently compelled in the face of the preference claims to discharge
the man to make room for a unionist. (®)
Regularly included in awards, both those granting preference and
others, is a clause directing that “ when members of the union and
nonmembers are employed together there shall be no distinction
between members and nonmembers, and both shall work together in
harmony and shall receive equal pay for equal work.” On the other
hand, there is a set clause usually inserted in awards in which
preference is not granted, providing that the “ employer shall not in
the engagement or dismissal o f workers discriminate against members
o f the union, nor do anything for the purpose of injuring the union
directly or indirectly.”
There is one notable exception in the court’s practice thus far to
the rule that awards granting preference do not permit of the dis
charge of nonunionists to make way for union members. An award
o f May 4, 1901, in the boot trade, granted preference, and added:
When a nonunion workman is engaged by an employer in conse
quence o f the union being unable to supply a workman of equal
ability willing to undertake the work, at any time within twelve
a Quoted by Judge Backhouse, report o f the New South Wales commission,
p. 20. .

GOVERNMENT INDUSTRIAL ARBITRATION.

491

weeks thereafter the union shall have the right to supply a man
capable of performing the work, provided the workman first, engaged
declines to become a member of the union. This provision shall also
apply to those nonunion workmen already employed. (a)
There is the same provision also in another award in the same
industry given September 24, 1903. A ll the more notable is the
exceptional form of preference in both these cases because of the
fact that each o f the awards applied to the whole colony, being
the only colonial awards thus far issued. The only explanation
which has been offered for this most radical form of preference is
one noted by the secretary for labor in 1904, to the effect th a t64practi
cally all o f the members of the boot trade were unionists when the
awards were given.” The secretary states also that the 1903 award
but ratified the terms of an agreement already settled between em
ployers and employed in the industry. Except for ten nonassociated
employers in the 1901 award, the parties named in both awards tvere
simply the national associations, respectively, of employers and work
ers in the boot trade, and the preference section of the award contains
also a clause providing that 44on the part of the union preference
o f service shall be given to members of the employers’ federation.”
Thirdly, with respect to preference to unionists, it must be remem
bered that the New Zealand arbitration law wrs purposely made
dependent upon organized labor for its operation and was expressly
designed to encourage organization. So that preference to unionists
conditioned as above is, after all, simply in line with the general
policy o f the system.
One apparently quite unexpected effect of the granting of pref
erence to unionists by the court of arbitration has been a movement
among New Zealand trade unions to secure a law making preference
universally compulsory. The chief reason for the desire for pref
erence by statute in place of that granted by the court of arbitration,
as indicated by the secretary for labor, ( *&) are, first, that the clause
in preference awards specifying that members of unions must be
44equally qualified with nonmembers ” to perform the work in ques
tion really tends to nullify the preference, since the employer is left
the sole judge as to such equal competency, and, second, that since,
under the arbitration law, it is the unionists who must bear all the
responsibility and expense (including the danger of offending
employers) o f securing improved conditions o f employment by bring
ing cases under the arbitration act, it is only fair that they should
have some advantage over the nonunionist, who enjoys the improved
conditions without sharing in the costs or risks involved in procuring
them.
« Awards, etc., II, p. 212.
6 Reports of the New Zealand Department o f Labor, 1902, p. v ; 1903, p. iv.

492

BULLETIN OF THE BUREAU OF LABOR.

The movement for compulsory preference for unionists by statute
was influential enough in 1903 to secure a motion to that effect in the
House o f Representatives in the legislative session of 1903, but the
motion was defeated, and the secretary for labor reports (a) that
several members who were friendly to the unions voted against the
motion on the ground that “ the unions would be stronger composed
o f volunteers united in one cause, as at present, than if composed o f
conscripts forced to join the union by legal process,” and that there
fore preference left to the decision of the arbitration court as now
was preferable. That the movement for statutory preference is
strong among the unions, however, is indicated by a statement of the
secretary in the same connection that “ at meetings of trades and
labor councils and by delegates at the labor conference there has
been expressed an intention to work toward making preference for
unionists compulsory.” (a)
The chief question handled by the court in making its awards is,
o f course, that of wages. The fact that the rates it fixes are neces
sarily compulsory has not relieved the court of the two fundamental
problems necessarily involved in determining wages for a given
trade and locality—namely, (1) the necessity of allowing for the
varying efficiency of individual workers, and (2) the necessity o f
protecting the employers involved from unequal competition with
those not affected by the award. Indeed, the very fact that from the
rates it declares there is no appeal tends to increase the responsibility
o f the court in both directions. How has it met these problems ?
In respect o f the former the court fixes general rates for a trade, of
course, and not for particular individuals, but they are always, in the
case of time wages, given as minimum rates. The schedules read
that wages shall be “ not less than ” «uch and such per hour, week, or
day. There is nothing in the law to prevent the court’s fixing max
imum wages also, but as a matter of fact it has from the first uni
formly restricted awards to naming the minima. But while the
court’s rate for a given occupation reads as the minimum therefor
this does not necessarily mean that it is fixed as for the least pro
ductive worker only. As a matter of fact the contrary is the case,
for it is usual for the awards to specify that “ any worker who con
siders himself incapable of earning” the minimum may be paid a
lower wage, which, as a rule, is to be determined either by an agree
ment o f the worker or the employer with the officers o f the union con
cerned in the award, or, if they do not reach an agreement promptly,
by the chairman o f the local concilation board, and such lower rate
is then permissible for only six months, or until the secretary o f the
union by fourteen days’ notice shall require that his wage be again
a Report of the New Zealand Department of Labor, 1904, p. v.

GOVERNMENT INDUSTRIAL ARBITRATION.

493

fixed in the same manner. This practice of the court, though fo l
lowed before 1900, received definite sanction in the act of that year
by a clause (a) specifically authorizing the fixing of minimum wages,
with such special provisions for lower rates attached.
But wThile the court’s rates are not fixed as for the poorest workman,
neither are they designed for the most productive workers. On the
contrary, it is a “ fair minimum wage,” to borrow a term used repeat
edly by the court, for workmen generally in the trade—that is, a rate
as for the average worker, which the court fixes, with nothing to pre
vent those o f exceptional efficiency from competing for a higher
return for their more productive labor. The attitude of the court
with respect to this point is clearly indicated in the following extract
from remarks made by the court in connection with an award in 1902,
in the case o f grocery clerks, a trade in which differences in capacity
between individual employees are especially marked. Said the court,
apropos o f its refusal to classify grocers’ clerks and prescribe a rate
for each grade:
Merit and ability will always find, in such an occupation as the one
we are now dealing with, its legitimate award, and it is not in the
interests o f either party that in a trade such as this is an automatic
rate o f payment for those who may have to take the more responsible
positions in a grocer’s shop should be prescribed by this court. Some
reasonable latitude must be allowed for individuality.
We have
therefore provided a minimum rate o f wages for assistants generally,
and the rate o f payment for those who may occupy positions of a
higher responsibility than that of a general assistant we have left to
the employer and the particular employee. ( *&)
What has been said above as to the court’s mode of fixing wages
refers to time rates. With piece rates there is, of course, no question
o f maximum and minimum, and the prices set by the court are the
only ones to be paid. But the adjustment o f earnings to efficiency is
automatic wTith them, being higher or lower according to the worker’s
output. It may be noted in this connection that Doctor Clark ( c)
finds that “ there appears to be a disposition on the part of the
court to discourage this form of payment for services [piecework],”
a view which seems to be corroborated by the frequent limitation or
entire prohibition o f that form of payment in recent awards.
Turning to the second problem mentioned as fundamental in
determining wages, the court appears to have clearly recognized the
necessity o f preserving fair competition between capital in different
localities or trades, whatever its notion o f the interests of the workers
in a particular case might be. Evidence of this is to be found in
various opinions expressed by the court, o f which the three following
Sec. 92.
&Awards, etc., I ll, p. 529.
0 Bulletin of the United States Bureau o f Labor, No. 49, p. 1215.

494

BULLETIN OF THE BUBEAU OF LABOB.

may be cited. In a letter to the ‘London Times the first president of
the court, Judge Williams, wrote as follows concerning the general
point in hand: 7
It has been justly said that you can not compel a workman to work
or an employer to carry on his business under conditions which are
intolerable to either. But the duty o f the arbitration court is to pro
nounce such an award as will enable the particular trade to be
carried on, and not to impose such conditions as would make it better
for an employer to close his works or for the workmen to cease work
ing than to conform to them.(a)
A very explicit opinion appears in a memorandum filed by Judge
Edwards with an award in the engineering trade in July, 1898. The
court had declined to grant, among other things, a demand for an
increase in wages, and the memorandum thus sets forth the grounds
for the refusal:
It was not contested on the part of the union that if the concessions
demanded by the union were made prices must be advanced. The
evidence, however, satisfies me that ft is impossible that there can be
any advance in prices which would recoup the additional cost to the
employers of conceding the demands of the union, or any substantial
part o f such cost. The employers are working in competition not
only with each other, but with other similar establishments in other
centers in the colony, and not only with these, but also with im
portations.
Quoting then the figures which had been given in evidence by an
employer as to the additional cost which the union demands would
entail, the judge continues:
No attempt was made to discredit these figures or other similar
figures, and I see no reason to doubt that they arc substantially cor
rect. Nor was any attempt made to prove, either by cross-examina
tion of the employers or otherwise, that these burdens could be borne
by the employers out o f their profits. On the other hand, each of
the employers who gave evidence deposed that he could not carry on
business under these conditions. The claims o f the union would bear
even mere hardly upon the agricultural-implement manufacturers.
The evidence showed, in my opinion, conclusively that these manufac
turers have to cope with very keen competition from foreign importa
tions, and that this competition is becoming more severe year by year.
I am satisfied that the result of granting union demands wTould, so
far as those manufacturers are concerned, result in the bulk of* the
goods now manufactured by them being imported from beyond the
colony, and consequently in the throwing out o f employment a large
number o f men who are now employed in the agricultural-machinery
shops. ( 6)
Again, in a case in the iron-molding trade in 1899, wherein it had
been shown that there was keen competition in the trade between
different localities in the colony, Judge Edwards declared that in
« Quoted by Lloyd, A Country Without Strikes, p. 166.
» Report o f the New Zealand Department of Labor, 1899, p. 19.

GOVERNMENT INDUSTRIAL ARBITRATION.

495

fixing the wages for the locality concerned in the dispute the court
“ ought to be very careful not to cause an interference with trade and
drive it from one part of the colony to the other, a possibility disas
trous to employers and employees alike. * * * It was no doubt
a misfortune that they could not take into consideration all parts o f
the colony and fix a wage for a ll; not necessarily the same wage, but
one that would do justice to the workers while not inflicting injustice
on employers; but all they could do in this case at present was to see
that, while the men got a fair living wage, the masters were not
injured.” (a)
Other expressions of the same tenor might be added, but these are
sufficient to indicate the spirit of the court with respect to the limita
tion referred to. It wTill be recalled that the desideratum mentioned
in the last quotation is precisely what was granted by the consolida
tion act o f 1900, which permits the court to extend awards over the
whole o f an industry throughout the colony, removing thereby the
limitations upon the court’s choice in fixing wages so far as com
petition between different localities within the colony is concerned.
On five occasions up to the end of 1904 this power to extend awards
had been invoked by the court. Two of these have already been
alluded to, namely, the two colonial awards in the boot trade of
1901 and 1903. In both these cases, however, the award was made to
apply to the entire industry at the time it was given, all employers
in the trade being parties to the reference and the extension in the
1903 award being made “ by the consent and express agreement ” of
both employers’ and workers’ organizations. Two o f the other three
cases o f extended awards were in the same industry and were for the
purpose o f extending the two colonial awards just mentioned to the
same boot firm in one of the lesser industrial districts. The orig
inal awards, it should be explained, read as applying to the four
chief industrial districts only, though evidently covering thereby the
entire boot and shoe industry of the colony at the time of the 1901
award and being regarded as colonial in character, that for 1903
being expressly referred to as such by the secretary for labor. ( 6)
Apparently a new boot and shoe business had been started in another
district, whereupon the workers’ national union applied to the court
to extend the award thereto, which, after due notice and hearing,
the court did, April 17, 1903, subject to certain modifications in the
award for the firm to be affected, to which the workers’ union had
agreed, and the same extension to the same firm was made in the case
o f the 1903 award without modification in April, 1904, this time at
the request o f both workers’ union and employers.
The fifth case o f extended award is, however, the most interesting,
a Quoted by Lloyd, A Country Without Strikes, p. 134.
6 Report of the New Zealand Department of Labor, 1904, p. v.

496

BULLETIN OF THE BUREAU OF LABOR.

because it presents the spectacle o f both employers and employees in
one section o f the colony demanding extension o f an award in force
upon them to another section, against the combined opposition o f
both employers and employed in the latter. In 1902 identical awards
for the tailoring industry were given by the court in the three chief
southern industrial districts of the colony. Competition existed,
however, in the markets o f these southern districts between the manu
facturers there and those in the northern industrial district, where,
owing apparently to superior processes o f manufacture, piece rates
o f wages ruled lower than in the south, but employees were able to
earn as high or even higher wages than those in the other districts.
Both employers and employed in the southern districts, therefore,
were anxious to have their awards extended to the northern district,
in order to hold for themselves the trade in their own districts. But
to this, as naturally threatening to curtail their existing business,
employers and employed in the north strenuously objected, and the
situation was complicated by the fact that two months before the
awards for the southern districts were made the employers’ and
workers’ unions in the tailoring trade in the northern district had
filed an industrial agreement under the arbitration act which fixed
the conditions o f employment in that district. Extension of the
awards to this district, therefore, would involve the abrogation to
some extent o f this perfectly valid agreement under the law. The
question o f whether under these circumstances the court had jurisdic
tion to extend the awards was taken up separately by the court, and
after hearing arguments by counsel on each side was decided in the
affirmative, though the court remarked that—
The question is one of considerable difficulty and importance and
is by no means free from doubt, and if we are wrong in law in assum
ing jurisdiction, the right of the objectors to apply for prohibition
exists, our decisions being conclusive only in cases within the juris
diction conferred on us by the act.(tt)
This judgment was rendered in December, 1902, and in June, 1903,
the question o f extension, after due hearing on its merits, was decided.
The result was almost a complete victory for the northern district
employers and employees. Upon the chief question o f piece rates of
wages the court declared:
The main question to be decided is whether the Auckland [north
ern] “ log ” [scale of wage rates] produces to the Auckland workers
substantially the same rate of earnings as the southern “ log ” does to
the southern workers. We have carefully examined the earnings of
the Auckland workers and contrasted them with the material sup
plied to us by the employers bound by the award, and the result is

<*Awards, etc., I ll, p. 109.

GOVERNMENT INDUSTRIAL ARBITRATION.

497

that, in our opinion, the Auckland workers can, under their “ log,”
earn substantially as good wages as the southern workers under their
“ log.” We therefore can not extend the piecework “ log ” contained
in the award to the Auckland manufacturers. The earnings being
in each case substantially at equal rates, the Auckland manufacturers
are not competing in this respect on unfair terms with the southern
manufacturers. (a)
In the same manner the court found weekly wage rates in the two
schedules essentially the same and declined to extend the awards.
In the matter o f preference to unionists, which was in the awards, but
not in the agreement, the court also declined extension, on the ground
that preference had been agreed to by the parties in the south for
years, but was not an issue in the north. On two points only (save
for one formal change o f no significance) did the court grant exten
sion, ordering the agreement changed accordingly, viz, the limitation
o f apprentices, which was in the awards, but not in the agreement,
and the award rate of wages for pressers, a class not mentioned in
the agreement. Otherwise the court ordered that the agreement
should remain in force as it stood.
Finally, concerning the preservation of fair competition between
employers, it is the practice of the court under the power to extend
awards given it by the act o f 1900, to require that a union making
a reference shall cite as parties all the employers in the industry
within the district who are likely to compete with each other. “ It
not infrequently happens,” remarked the court in 1904, “ that the
court has to order others to be cited in order fully to protect those
already before it, and in doing so the court has hitherto acted on the
assumption that this course was not merely desirable, but neces
sary.” ^ )
It remains to note, in connection with the subject o f the fixing of
wages by the court, how the special provisions made for exceptions
to award rates in the case of slow or incompetent workers have worked
in actual practice and the effect of award rates upon previously exist
ing higher rates.
Concerning the former point, it appears that the provisions made for
incompetent workers have not always worked satisfactorily, and that
some hardship has resulted for those workers who are not able to
earn the minimum wages fixed by the court awards. This has come
about either through the refusal of union officials to grant the neces
sary permits for lower wages or through the disinclination of employ
ers to employ workers who can not earn* the award minimum. As
to the refusal o f union officers to issue the permits, both the Victoria
« Awards, etc., IV, p. 177.
50—No. 60—05

----- 8

6 Awards, etc., V, p. 191.

498

BULLETIN OF THE BUREAU OF LABOR.

commission and Doctor Clark found evidence that such refusals had
occurred, the former noting that in 1902 the president of the arbitra
tion court took occasion to severely criticize a union for such refusal.
Doctor Clark reports also that it was said that the chairmen o f
conciliation boards hesitated to override the decisions of union officers
in such cases, which would obviously tend to make the appeal to such
chairmen, usually provided in the awards, of little value. But Doc
tor Clark’s conclusion, however, is that such refusals have been chiefly
in the case o f workmen coming as strangers into a locality and that
in the case o f local workmen “ as a rule the unions seem to have been
fairly liberal in granting special concessions to real incompetents.” (a)
It thus appears that it is the inclination of employers to hire only
those able to earn the award rate, and so avoid the inconvenience and
practical difficulties of the special proceedings necessary in case of
poorer workmen, which has been the chief cause of whatever hard
ship the incompetents have suffered, and this attitude of employers is
noted by both the investigators just mentioned. It is in order to note
that the secretary for labor alluding to this question in 1902, inclined
to a very optimistic view and, although admitting that it would be
“ only human nature, as well as good business ” for employers to
leave out the slow or poor worker, declared that “ there has been no
proof presented that during the last two or three years— during which
most o f the awards have been made— any suffering has been caused
by the institution of a minimum wage.” ( &) Not so favorable as to
this phase o f the subject, however, is the evidence of Doctor Clark,
who found that this “ question of the wages of incompetent and slow
workers has been one o f the most vexatious that has arisen under the
arbitration law,” and still less optimistic is the opinion o f the Victoria
commission that—
It is clear that the problem how to effectually protect and provide
a livelihood for the slow and inferior worker without impairing
or breaking down the principle o f the minimum wage has not yet
been properly solved in New Zealand.
Concerning the second question suggested above—whether there is
any tendency for employers not to pay higher wages than those fixed
by the court—the evidence is rather inconclusive. The secretary
for labor, writing in 1902, ( 6) inclined strongly to a negative answer,
asserting that “ in practice * * * it is found that the best men
leave the mimimum wage far behind,” and that although it was
“ true * * * that when a workman leaves his old employer and
gets new work he often has to start on a minimum wage,” neverthe
less, “ i f he is a valuable man he does not long remain at that rate.”
« Bulletin of the United States Bureau o f Labor, No. 49, p. 1211.
&Report of the New Zealand Department o f Labor, 1902, p. iv.

GOVERNMENT INDUSTRIAL ARBITRATION.

499

But Doctor Clark, who alone of outside investigators has given
especial attention to this question, (a) points out that such a tendency
was recognized by the court in 1902 in the case of two awards,
at least, as shown by the court’s remarks in one instance, and in an
other by a clause in the award forbidding employers to reduce the
wages o f any employee who at the date of the award was earning
more than the minimum. ( *&) Doctor Clark notes, however, that the
relation o f maximum wages to award minima varies in different
trades and localities, and that the opinions of persons familiar with
the working o f the law were generally based on knowledge of condi
tions in a single trade, and therefore differed very greatly upon this
subject, as illustrated by a considerable number quoted by him. The
results o f his own effort at some comparison of award rates with
actual rates in certain trades, by means of the wage statistics pub
lished in the annual reports of the department of labor, showed that
out o f 13 cases in which reasonably exact comparisons could be made
in 4 the actual maximum paid was the same as the award rate, while
in 9 cases the maximum rates exceeded award rates by from 49 cents
to $2.43 per week.
On the question of hours o f work the court’s awards, though no
doubt tending on the whole to shorten hours, appear not to have
departed radically from general conditions in the colony prior to
the passage o f the arbitration law. In 1890 eight hours per day
was the prevailing wTorking time in the colony. ( c) An examination
o f the 30 awards touching this subject in the two years from June,
1899, to June, 1901, shows weekly hours fixed at from 52 to 56 in
3 cases, from 44 to 48 in 25, and at 42 in 2. That is, the prevailing
hours in awards were from 44 to 48. O f these, in 16 the hours were
47 or 48, and in 9 from 44 to 46^, but in all but 1 the awards really
provided for an 8-hour day (in 3 for 8J or 8-J), and the difference
between the two grades is simply the result o f the presence or ab
sence o f the Saturday half holiday. The 48-hour week prevailed
in awards for factory trades and mining, while in the building trades,
through the half day on Saturday, 44 hours prevailed. In this con
nection it may be noted that the hours o f labor of women and minors
in factories are by the factory acts limited to 48 per week. The
awards o f more than 48 hours were for bakers and butchers, trades
which have never shared the 8-hour day generally prevalent in the
colony. Very similar to the above for 1899 to 1901 are the hours
found in the awards of 1904. Thus, o f 24 awards in that year which
fixed the working time, in one (for compositors) the weekly hours
« Cf. his account, Bulletin of the United States Bureau o f Labor, No. 49, pp.
1207-1209.
&Cf. Awards, etc., I ll, pp. 41 and 82.
o British Royal Commission on Labor, Foreign Reports, Vol. II, pp. 25, 26.

bOO

BULLETIN OF THE BUREAU OF LABOR.

were 42 (the same as in 2 awards in the same trade before 1902) ; in
5, all in the building trades, the hours were fixed at 44; in 12 awards
(o f which 8 were in factory trades), at 47 to 48; in 4 (bakers, carters,
shearers, and street railway employees), at 48 to 54, and in 2 (livery
employees and cooks and waiters), at 62 to 84. As to the Saturday
half holiday it is found specified unconditionally in 10 o f the 24
awards o f 1904, and is left optional for each establishment in 1
other. It appears in all 6 o f the building-trade awards o f 1904,
and in 5 factory trades the 1 optional case being among the latter.
This is much the same general result as in the 30 awards o f 1899 to
1901, when the half day on Saturday was granted in all the build
ing-trade awards (8) and in 4 factory trades, or 12 times altogether.
The half holiday in factory trades appears, however, relatively
more often in 1904 than in 1899 to 1901, having been granted in 5
out o f 9 awards in such trades in the former year as compared
with 4 out o f 13 in the earlier period. According to Doctor Clark,
the unions are constantly pressing upon the court for Saturday half
holiday, and a movement is afoot to make it compulsory by legisla
tive enactment. Finally, concerning hours in awards, it should be
said that while general results touching hours have been as above,
the court has considered each case on its own merits, for different
hours are found in different awards in the same trade. Thus, to cite
a single example, of 5 awards for compositors in 1899 to 1901, in 2
hours were fixed at 42, in 1 at 44, and in 2 at 48.
The last remark, touching the fixing o f hours of work, applies also
to the question o f apprentices and youths in awards. The court has
often been called upon to fix their number, and in many cases, though
not always, has done so and has frequently prescribed that they shall
be indentured for a term o f years. But there is no regularity in the
limit set in different awards, the number being determined in each
case according to its special circumstances. The attitude of the court
on this whole question is very clearly and amply set forth in the fol
lowing, from the court’s remarks in connection with an award for
grocers’ assistants, rendered in May, 1902:
We have been asked to limit the number of youths to be employed
in a grocer’s shop. We know of no sufficient reason which can justify
us in so doing. There are some occupations where it is advisable to
limit youths in number. But there are other occupations where no
such limit is either reasonable or necessary, and, as we have said on
more than one previous occasion, it is our duty to see that the avenues
for suitable work are not closed to the youth o f this colony. We owe
a duty to the boys and to the community, as well as to the adult
workers o f the colony, and that duty we must perform to the best of
our ability. In practically every occupation the regulation of which
has been submitted to this court we have been asked to exclude youths
beyond a limited proportion to the adults employed. That propor

GOVERNMENT INDUSTRIAL ARBITRATION.

501

tion is generally stated at either one youth to three or one youth to
four adults employed. Thoughtful workingmen, we think, must
recognize that if their boys are debarred from obtaining suitable
employment in trades from which there is no natural right for their
exclusion, a wrong is done to these boys, and the difficulties surround
ing the bringing up o f a family are very much increased. The inter
ests o f this colony demand that there must be no improper shutting
out from a legitimate means of earning a livelihood the youth of this
colony, and we think that we are amply justified, in the interests of
the working classes themselves, in again emphasizing this principle.
While, therefore, we do not in any way limit the employment of
youths in this trade, we prescribe a scale of wages to be paid to them
according to age, which we think will prevent any abuse. (a)
The fixing o f a special scale o f wages for youths according to age
or years o f service as in this case, it may be added, is the regular prac
tice o f the court in cases where their employment is permitted, and
their employment without pay is always prohibited.
ENFORCEMENT OF AWARDS AND AGREEMENTS.

As already noted in another connection, no part o f the work of the
court o f arbitration has grown so rapidly as that which has .to do
with the enforcement of awards and industrial agreements under the
arbitration law. Thus from 12 actions for breach of awards or agree
ments brought before the court in the year ended June 30, 1900, the
number had multiplied to 121, or tenfold, in the year ended March 31,
1904. This increase in enforcement cases, it may be noted, has been
entirely in connection with enforcement of awards rather than agree
ments under the act. Thus the volumes of Awards, etc., show that
o f cases for enforcement o f agreements disposed o f by the court
there were 6 in the year ended June 30, 1900, 7 in the year and a half
ended December 31, 1902, and 1 in the year ended December 31, 1904.
During the period prior to 1898, when the enforcement of awards
lay with the regular civil courts, 5 actions for enforcement were
brought, 2 o f which were dismissed on technical grounds, while in 3
the result was conviction and fines were imposed, but in 2 o f these the
employers appealed to higher courts. ( 6)
Subsequent to the transfer of all such actions to the arbitration
court, the most important change in the procedure for enforcement
cases was made by the amendments o f 1901 and 1903, the first of
which permitted and the second of which made it the duty of the
factory inspectors to see that awards are enforced. Prior to these
amendments the responsibility of moving for proceedings to secure
« Awards, etc., I ll, p. 337.
^ These cases were reported in the Annual Reports o f the New Zealand De
partment of Labor. Later enforcement cases are reported in the volumes o f
Awards, etc.

502

BULLETIN OF THE BUREAU OF LABOR.

enforcement o f awards or agreements lay with the parties thereto,
since the registrar o f unions under the act, who was given power in
1900 to institute such proceedings, was obviously in "no position to
take extensive cognizance o f infringements. The motive for the
change in 1901 and 1903 appears to have been the fact that often
trade union officials shrank from conducting proceedings against an
employer for fear o f being “ blacklisted ” therefor. (a)
The report o f the secretary for labor in 1902 indicates the style of
procedure which was adopted by inspectors under the 1901 amend
ment. The report (presented in March, 1902, five months after the
amendment) noted that several breaches had been reported to in
spectors. In such cases the inspectors, acting under instructions from
the secretary, exercised discretionary powers. Instead o f at once
laying any complaint before the court, the local inspector first in
vestigated the case, and i f he found evidence that a breach had been
committed made report to the chief inspector for the colony, and then,
if so instructed, laid the case before the court. I f he found the com
plaint without basis or trivial, or that evidence to prove the case
could not be had, he took no action, leaving the complainants to act
or not as they chose. This style of procedure was similar to that fol
lowed in cases o f breach o f the factory acts, but inspectors were not
permitted by the amendment to use any o f their powers o f investiga
tion under the latter in actions under the arbitration law. To this
should be added that inspectors have frequently been able to bring
about an amicable settlement between the parties o f the matter com
plained o f without recourse to the court. Thus, the inspector in
Christchurch reported for the year ended March 31, 1904, that out
o f 40 cases o f alleged breaches brought to his attention it was only
necessary for the department of labor to proceed against 1 em
ployer in the court; in 4 other cases the parties themselves went to the
court by agreement to secure an interpretation of the award in respect
of the claims made, while in all the other cases where a bona fide
breach o f award had occurred the inspector was himself able to effect
a settlement agreeable to both parties. (6)
While it appears that the amendment of 1901 entailed considerable
work for some o f the inspectors, that of 1903 brought a far larger
amount o f work, so that the secretary for labor remarked in 1904
that the inspectors “ have had their hands full in some districts.”
The chief deputy inspector reported that during the year ended
March 31, 1904, inspectors brought a total of 110 enforcement cases
before the arbitration court. The secretary for labor in his 1904
a CL Report of the New Zealand Department of Labor, 1904, p. iv, and Judge
Backhouse in report o f the New South Wales commission, p. 22.
®Report o f the New Zealand Department of Labor, 1903, p. xiv.

GOVERNMENT INDUSTRIAL ARBITRATION.

503

report (p. vi) expressed satisfaction with the working of the 1903
amendment, declaring:
The result o f appointing inspectors [factory inspectors as inspect
ors o f awards] fully justifies such appointment, as the operatives
have been greatly benefited and protected, not only by the cases
actually taken to the court, but by the existence of oflicers whose duty
it is to see that the law is not evaded or abrogated.
The secretary notes that the power given inspectors by the 1903
amendment to examine wages, books, etc., had been of great service,
since—
Formerly, even when it was known by documentary evidence to an
inspector o f factories that the awarded wages were not being paid, he
was powerless to use that knowledge for the purpose of the arbitra
tion act, while now, as an inspector of awards, he can do so.
The same style of procedure by inspectors was continued under
the larger powers and duties of the 1903 amendment as under the
earlier provision, the chief deputy inspector reporting in 1904 that—
Not the least important part of the work in connection with this
act [the arbitration act] is the number of personal interviews between
the inspectors, employers, secretaries, and members of unions, and
these interviews in many cases save endless trouble and annoyance,
owing to the advice and assistance given in settling minor disputes
and giving clear interpretations on points in question. (a)
Certain remarks made by the president of the arbitration court on
two occasions in 1904 throw considerable light on the condition of
things relative to enforcement cases in that year. ( *6) They indicate,
for one thing, that the laying of the responsibility for enforcing
awards and agreements upon the factory inspectors was no small
factor in the increase of enforcement cases in recent years, which has
been already noted. In the second place, it appears that the increase
was not in cases of serious breach of awards and agreements, but
rather in less serious or even trivial cases. “ Many o f the cases,”
said the court in one district, “ which we have heard during the last
few months appeared to be small cases, and a great amount of the
court’s time has been taken up in investigating matters which ap
peared to be small matters.” And commenting on the large number
o f cases in another district the court remarked incidentally that
“ none o f the cases here was serious; indeed, some of the breaches
were small ones.” In the third place, the court’s opinion was that
on the whole the inspectors were carrying out their new duties in
praiseworthy fashion. Apropos of the number of cases being brought
by the inspectors, the court had taken occasion to call their attention
to the necessity o f using their own judgment and not carrying up to
o Report of the New Zealand Department of Labor, 1901, p. viii.
&Cf. Awards, etc., V, pp. 221, 383.

5*04

BULLETIN OF THE BUREAU OF LABOR.

the court complaints by unions unless there was good ground for
them, and when one o f the inspectors called the court’s attention to
the fact that its remarks had been interpreted as adverse criticism
upon the manner in which the inspectors were performing their
duties, the court said emphatically tl^at its remarks were never
intended as unfavorable criticism of the inspectors and that “ they
had sat in several places * * * since the system of inspection
came into existence, and in every place they had found, so far as
they could see, that the inspectors were doing their duty efficiently
and in a perfectly reasonable way.” In the fourth place, the cause
o f the breaches which were coming up in such large numbers appears
to have been chiefly careless ignorance of awards by employers, rather
than willful disregard. Thus, in closing its hearings in one district,
in December, 1904, the court took the employers therein to task for
the large number of breaches of which the court had been compelled
to take cognizance, in the following terms:
Last February we * * * found that employers constantly
raised their own ignorance o f the awards or the agreements under
which they worked as excuses and as grounds either for the dis
missal o f charges or for mitigated penalties. Over and over again
we spoke to them on the subject. Our remarks became public, and
ought to have been noticed by employers, but what we said on that
occasion and the leniency we showed seems to have had little or no
effect. * * * Under the circumstances it seems to us that employ
ers have been, to say the least, inattentive to the terms o f the awards
and agreements. We hope this will be the last o f that sort o f thing.
* * * We expect employers to take the trouble to ascertain the
terms o f the awards and agreements by which they are bound, and we
wish them to understand that the leniency we have shown on this occa
sion will not be shown on future occasions.
While these are the most emphatic remarks of the court on this
point, others o f the same significance and even more general in their
application might be quoted from the statement on the other occasion
which has been referred to. Finally, the court’s idea o f the whole
situation in 1904 was that it represented after all a natural and neces
sary but probably a temporary stage in the process of securing obedi
ence to awards and agreements. The court compared the situation
with experience under the shop-hours act thus:
Everyone here will remember that time. The magistrate’s court
was filled with prosecutions under the shop-hours act. When once
the employers came into touch with the inspectors and all the little
points o f difference were discussed between them, the friction gradu
ally died out, and we find this act is observed now. We expect to see
the same in regard to these awards. There is no great difficulty in the
matter if the people take the trouble to master the awards, and
there ought to be in the near future a great reduction in the number
o f these cases. A t present there appears to be a considerable increase,

GOVERNMENT INDUSTRIAL ARBITRATION.

505

but, I take it, that is largely due to the fact that proceedings are
instigated by the inspectors really in the nature of a caution, so as
to induce people to study their awards and obey them.
Corroborating the opinion expressed in the last sentence are the
remarks o f the Auckland factory inspector in his report for the
year ended March 31, 1904, apropos o f his having cited before the
court 20 employers charged with 40 breaches o f awards, thus:
I trust this will have the desired effect of acting as a deterrent, and
I am sanguine that, now that employers are aware that responsible
officers, with power to acquire information, are enforcing conformity
to awards, breaches in future will be greatly lessened and the pro
visions o f this act will be adhered to with as small a degree o f fric
tion as in the case of other acts controlled by this department. (a)
The kinds o f breaches o f awards and agreements have been almost
as various as the different items covered in such instruments, but the
great majority o f the cases have very naturally concerned the alleged
payment o f lower than the prescribed rates o f wages. In this latter
class o f cases, when an employer has been convicted o f paying less
than the prescribed rate it is customary for the court to require him
to pay to the workers in question all back wages at the award or
agreement rate, this either as sole penalty, aside from costs, or it may
be in addition to fine. In his 1904 report (*&) the secretary for labor
raises the question whether a limit should not be set to the time for
which back wages should be paid, instancing two cases, in one of
which £73 ($355.25) and in another £88 ($428.25) of back pay were
allowed by the court. The secretary points out the possibility that
“ unless there has been proof o f continued remonstrance as to wages
[by the worker] a policy more characterized by cunning than hon
esty may dictate silent acceptance o f less pay than the award pre
scribed, while there is concealed the purpose o f claiming the differ
ence as a lump sum in the arbitration court.” This matter the secre
tary evidently brought up as a possible evil only, for he adds:
I do not infer or suggest that such has hitherto been the case in
any action for breach o f award, but the weak place is there and should
be exposed.
Another mode of procedure in cases o f conviction, however, seems
to have given rise to some actual practice of an evil sort. When
penalties are inflicted the law directs (c) that the cou rt44shall specify
the parties liable to pay the same and the parties or persons to whom
the same are payable.” When fines have been imposed upon em
ployers it has been the practice to order the fines to be paid to the
worker’s union interested. Apparently as an outgrowth of this prac« Report o f the New Zealand Department o f Labor, 1904, p. x.
&Report o f the New Zealand Department o f Labor, 1904, p. v.
o Sec. 94 (4) of the act o f 1900.

506

BULLETIN OF THE BUREAU OF LABOR.

tice, or suggested by it, there have been eases in which union officials
have collected “ fines ” from employers directly in lieu of enforcement
proceedings in the court of arbitration. Doctor Clark (®) notes that
as a result of such practices by the secretary of one union “ a large
dejDutation o f sawmillers from various parts of the colony ” called
upon the premier to ask for remedial legislation to prevent any union
official from “ receiving anything but a fixed salary, to prevent fines
being awarded to unions, and to prevent the private settlement of
breaches o f award.” In the same year, also, the president of the court
took occasion, in Wellington, to express condemnation of the practice
o f “ compromising in enforcement cases,” declaring that “ the practice
o f taking a lump sum in lieu of penalties before proceedings are com
menced is a dangerous one,” and noting that “ cases of compromises
o f the several kinds to which the court objects have been in evidence
before us.” ( 6) It thus appears that, although there is no evidence
that such practices have been at all general, there have been enough
o f them to emphasize the possibilities of this sort o f evil under the
system.
Dow7n to the year 1904 enforcements were almost solely against
employers, as indicated by the following summary from a return to
the legislative council of the colony.
NUMBER OF BREACHES BY EMPLOYERS AND BY WORKERS CHARGED AND
CONVICTED, NEW ZEALAND, 1901 TO 1903, AND TOTAL 1896 TO 1903.
[Quoted in the British Labor Gazette, December, 1901, p. 381.]
Number of breaches.
Year.

By employers.

By workers.

Con Charged.
Charged. victed.
1901..................................................................................................
1902.................................................................................................
1903..................................................................................................
1896-1903..........................................................................................

19
63
74
213

14
52
57
a 171

3
1
4

Con
victed.

a Thirty-five others dismissed and 7 withdrawn.
Total fines in the 171 convictions.
£512 ($2,491.65).
6 One other dismissed. Total fines in the 3 convictions, £32 ($155.73).

In 1904 there appears to have been some change in policy and a dis
position to treat the employee who accepts wages lower than awards
or agreements allowed as guilty with the employer who pays such
lower rates. This question was brought up by the secretary for
labor in his 1904 report, presented in the forepart of that year. Thus,
he remarks:
A ll men in a union are not its whole-hearted supporters, and some
o f them either willfully or inadvertently accept wages or earnings
not permitted by the award. I f there is a case proved against an
« Bulletin of the United States Bureau of Labor, No. 49, p. 1243.
&Awards, etc., IV, p. 336.

GOVERNMENT INDUSTRIAL ARBITRATION.

507

employer who breaks an award by paying less than specified wages,
the recipient of such wages is also a defaulter and should be prose
cuted. Although in a few cases this has been done in order to make
an example, still, in the large majority o f cases, the employer alone
is prosecuted, as it is considered that there is probably pressure from
several directions before a man will accept less for his work than that
to which he is properly entitled.
During the year 1904 the cases such as the “ examples ” to which
the secretary refers greatly multiplied, for in the volume of Awards,
etc., for the calendar year 1904, no less than 27 enforcement cases
against employees appear. A ll but one of these were against indi
vidual employees. Two wTere actions for leaving an employer with
out the prescribed notice (conviction in both), one for working at
longer than the prescribed hours (convicted), one case against a
union in wdiich the character of the charge is not reported, and
which was dismissed, while 23 were for accepting less than the pre
scribed wTage, and all but 5 of these resulted in convictions.
The cases against workers just referred to really represent, of
course, actions in the interest of the unions or workers as a whole,
and do not, therefore, throw any light upon the problem of enforce
ment as against workers generally if awards were unfavorable to
them. In fact, the test of the system as to enforcement against work
people has not yet been made. But there have been one or two inci
dents which have a bearing upon the possibilities in that direction.
In the first place, the New South Wales commissioner found two
instances in which it was certain and a third in which it was prob
able that workmen who were dissatisfied with the wages awarded by
the court had deliberately limited their output to the amount they
deemed proper for the wages fixed. (a) These three cases were in
different trades and under three different awards. In one instance
such action by compositors greatly hampered a newspaper in getting
out its issues. ( *&) In the second place Judge Backhouse reports an
instance in which a union applied for cancellation of its registration
under the arbitration act upon the rendition of an unfavorable award
in its trade. Cancellation coidd have no effect, o f course, upon the
binding force o f the award already made, but it would put the union
beyond the law for the future. An occurrence in connection with the
award in 1901 in the boot and shoe industry, which applied to the
entire colony, is significant in this connection. The decision was
adverse to the union’s demands, and the trades and labor council of
Christchurch, the chief seat of the industry, gave free expression to
Report of the New South Wales commission, pp. 24, 26.
&In this particular instance Judge Backhouse reports that the men had
special provocation, as the award put wages actually lower than those which
had been offered by the employers, and they were later raised by agreement of
the parties, but this does not alter the significance of the action.

008

BULLETIN OF THE BUEEAU OF LABOE.

its disapprobation by passing a motion finding fault with it. The
Victoria commission(«) reports a case in June, 1902, in which a
Wellington union, incensed at an interpretation given an award by
the court, passed a resolution “ that the time has arrived when the
workers o f the colony should consider methods other than the use
o f the court to obtain justice,” and declared that if it were true that
the court’s decision had been unanimous “ the representative of the
union on the court has forfeited all right to the confidence o f the
workers,” Doctor Clark reports:
Employees have shown in a number of instances a disposition to
criticise the court, and to try to secure control over the court through
the ministry when dissatisfied with awards. Unions at times meet
and pass resolutions condemning the court. They have sent dele
gations to the premier with complaints as to the awards of the court,
even asking for the removal of the judge. A labor member intro
duced a resolution into the upper house of Parliament calling for an
investigation o f the court because a few unions were dissatisfied with
some recent awards and decisions. ( *6)
It must be said that such cases as the above have been altogether
exceptional. The Victoria commission declares they are the acts of
the extremists only, and that unionists “ as a body, we believe, loy
ally accept and carry out the awards of the court when they are in
favor o f employers,” and cites a case in which, when the president of
a union had demanded o f the minister of justice the dismissal of the
judge o f the arbitration court because an important award had given
the union but a small portion o f what they asked for, the members,
who, though disappointed, had quietly accepted the award, immedi
ately called for and received the president’s resignation. But it
must be remembered that the significance o f the unfavorable incidents
above alluded to is considerably heightened by the fact that awards
unfavorable to the work people have thus far been relatively few.
They at least emphasize the uncertainties of the future and indicate
grave possibilities if awards shall ever become to a considerable extent
unfavorable to employees. And Doctor Clark indicates that doubts
as to the future under such circumstances are prevalent in New
Zealand itself by the fact that he met “ the frequent statement from
both laboring men and employers that the arbitration act may fail
in a time o f depression, when the awards must be revised so as to lower
wages or restrict the other advantages previously gained by the
workers.” ( 6)
« Report of the Victoria commission, p. x x y .
&Bulletin o f the United States Bureau o f Labor, No. 49, p. 1254.

GOVERNMENT INDUSTRIAL ARBITRATION.

509

DEGREE OF INDUSTRIAL PEACE SECURED.

The purpose of the New Zealand system was to eliminate the costly
warfare o f strikes and lockouts from industrial life. This it can be
said to have accomplished for the most part. There have been some
strikes since the law went into force. Judge Backhouse in 1901
reported eight that to his knowledge had occurred since 1894, («) and
Doctor Clark ( *&) reports that there have been some small difficulties
since 1901. So long as any work people shall be unorganized, or if
organized, shall prefer not to register under the arbitration act,
strikes and lockouts beyond the jurisdiction o f the court or boards
will always be possible. Nevertheless, it is certainly true that under
the arbitration system strikes have thus far been comparatively rare,
and none have been of large dimensions. Doctor Clark sums up
the matter thus:
The true statement o f the case is that, while there have been diffi
culties o f this character, they have been as a rule exceedingly unim
portant; they have not occurred among workers directly subject to
the act, and with the extension of the jurisdiction o f the, court
through amendments to the law to cover allied industries, and the
increasing number of awards and the growth of organization among
the workers, such troubles as have occurred are becoming more and
more rare.(&)
Doctor Clark adds, however, that in weighing these facts it must
be borne in mind that the years just prior to the passage of the
arbitration law in 1896 were also comparatively free from industrial
disputes, the record of strikes begun by the department o f labor in
1894 showing but five unimportant cases in the two years 1894 and
1895. So that, although the rapid industrial expansion in the colony
which has gone on ever since the arbitration system was established
creates the probability that strikes and lockouts might have greatly
multiplied without the system, nevertheless the contrast between the
years since 1896 and those before is not, as a matter o f fact, so
great as might at first thought be inferred.
Doctor Clark points out that the entire absence o f strikes by the
unions subject to the arbitration act, although they have frequently
been dissatisfied with awards, is all the more notable by reason of the
fact that up to 1908 it was generally held by them that nothing in the
law prevented their striking after an award had been rendered. It is
true, as indicated in the analysis of the law ,(c) that the statute prohib
its strikes or lockouts or the discontinuance o f the relation o f employer
« Report of the New South Wales commission, p. 420.
6 Bulletin of the United States Bureau of Labor, No. 49, p. 1228.
o Cf. supra, p. 465.

510

BULLETIN OF THE BUREAU OF LABOR.

and employed only during the period while proceedings under the act
are pending. A very few cases are reported in which actions have been
brought against employers for dismissing workmen while disputes
were pending before a board of conciliation or the court. The volumes
o f Awards, etc., show one such in 1898 (apparently dismissed), one in
1900 (convicted), one in 1902 (convicted), and one in 1904 (dismissed).
These cases were all evidently within the plain meaning of the statute.
But in 1903 occurred a notable case, in which the question o f the legal
ity o f such action after an award had been rendered came up. In
February, 1903, the court rendered an award in the Auckland furni
ture trade, which raised the wages o f certain workers 4 cents per hour
over those in an industrial agreement wThich had previously regulated
conditions and which expired when the award went into effect.
Thereupon two firms, employing about 175 out of the 250 to 300
workers affected by the award, discharged or suspended 17 men on the
ground that they were unable to earn the higher award rate o f 30
cents per hour; but the firms were willing to reemploy them at
the former agreement rate o f 26 cents which they had been
receiving, if they would secure permits for such lower rate as
incompetents, in the manner, specified in the award. The union
secretary, however, to whom one or two appealed for the permits,
refused to consider as incompetents men who had been earning
the minimum wages under the agreement up to the time the award
went into force, and the union maintained that the action of the
employers amounted to a breach o f the award. Efforts were made
by the government to induce the employers to reinstate the men,
but unsuccessfully, and finally the registrar o f industrial unions,
who is also the secretary of the department o f labor, brought an action
against the two employers for breach o f the award, and against the
employers’ association of which the two firms were members, it being
alleged that, since the employers’ association had expressly approved
the action of the two firms and promised to support them therein,
there had been a combined effort to defeat the award.
The ease had attracted wide attention, both in New Zealand and
abroad, through its interpretation in the public press as a “ lockout ”
by the employers to defeat the award. For this reason the court
went into the case at length in its decision, (a) but dismissed the com
plaint, holding that—
The dismissal or suspension of these 13 men under the circumstances
disclosed in the evidence adduced before the court can in no reason
able sense be called a lockout or be held to be a contravention of the
provisions o f the award.

®Cf. Awards, etc., IV, p. 135.

GOVERNMENT INDUSTRIAL ARBITRATION.

511

Apropos o f the notoriety which had been given the case and the
significance which had been popularly attached to it, the court took
occasion to say in its decision that—
These applications have been clothed with an importance and with
proportions which they do not merit. * * * I entirely disagree
with the suggestion made by the counsel for the applicants that in
these proceedings the efficacy of the industrial conciliation and arbi
tration act is on its trial, or that an adverse decision to the appli
cants emasculates the court’s award and destroys the efficiency o f our
present system o f labor disputes. I entertain no doubt as to the
power and jurisdiction of the court to effectively enforce its awards
and to carry out in all matters within its jurisdiction the true intent,
meaning, and spirit of the statute.
In the decision itself nothing was said about the question o f the
legality o f strikes or lockouts after awards have been rendered, but
-in remarks made in the course o f the case the president o f the court
took occasion to affirm that, to quote the statement as given by the
secretary for labor—
I f a combined and concerted action, such as a strike, took place, he
would consider such action a breach of award and punish it severely;
* * * he should act in the spirit and not in the letter o f the law ;
and that as the spirit o f the act was in the direction o f preventing
industrial strife, he had power to punish organized infractions of
award.
The secretary concluded from this that the law “ appears to be that,
although an individual employer is competent to dismiss his work
man, or an individual workman is free to leave his employer’s service,
there must be no concerted action on either side in this direction, or,
if so, such action will constitute a strike or lockout and be punishable
under the arbitration act.” (a) This inference of the secretary, it
may be noted, was specifically incorporated into the law by one of the
1903 amendments, which makes any action, including specifically
combined action, by employers or workers, for the purpose of defeat
ing awards or agreements at any time during their currency, equiva
lent to breaches of the awards or agreements and punishable accord
ingly, and which also makes dismissal of a worker because he is en
titled to the benefit o f an award or agreement equivalent to breach
o f the award or agreement.
While the elimination of strikes and lockouts, for which the New
Zealand system was established, has been practically attained, it is
to be noted that this attainment has been accompanied by a quite
unexpected amount of interference by the system itself in industrial
relations. The secretary for labor, in his report of 1898, remarked
* Report of the New Zealand Department o f Labor, 1903, p. v.

512

BULLETIN OF THE BUREAU OF LABOR.

that the principal argument used against the law was that it seemed
44to stir up rather than settle strife, by enabling every petty mis
understanding to be dragged into the full light of day and become
serious; that the boards and court foment enmity between employer
and employed by binding employers under harassing restrictions
and wasting the time o f both parties in litigious proceedings.” This
statement o f the case, it is safe to say, is overdrawn. Nevertheless it
does appear that to a considerable extent references under the arbi
tration act have been made in the absence of any previously developed
dispute between employers and employees, and that the very possi
bilities o f the law itself have inspired the making of issues for refer
ence under it. To this effect is the testimony o f Judge Back
house,^) the New South Wales commissioner, and of Sidney and
Beatrice W ebb,(*&) and the fact has been recognized by both the
author o f the law, Mr. Reeves, ( c) and the colonial secretary of
labor. (d) The original aim o f the law was to eliminate the industrial
warfare o f strike or lockout; but, says Judge Backhouse:
It goes far beyond settling disputes in which, but for its provisions,
there would have been strikes. It is used as a means of fixing the
wages and general conditions o f labor in many industries, and with
out doubt will eventually be so used in all.
According to the Webbs, such use o f the system was the natural
result o f the discovery by the labor organizations that it was pos
sible by proceedings under the law to secure uniform conditions of
employment in a trade and thereby realize the trade-union principle
o f the 64common rule.” But it is also true that in industries which
have once come under the law references have to some extent been
multiplied simply in the hope of better terms by renewed proceed
ings. Judge Backhouse states that—
Generally, when an accepted recommendation or an award ex
pires there is a tendency on the part of the men to immediately make
a reference, and demand more than they expect to get, in the hope
that some improvement will be made in their condition. (a)
As pointed out by Doctor Clark, ( e) who also notes the fact of the
unexpected multiplication o f cases under the law, the effect o f this
condition o f things has been, especially in later years, when the crush
o f business in the arbitration court has greatly delayed awards, to
render uncertain the future conditions o f production and to that extent
to hamper employers. 44There is no more finality,” says he, 44in the
« Report o f the New South Wales commission, p. 23.
&Industrial Democracy (1902 ed.), p. xlv.
c The Long White Cloud, p. 389.
& Report o f the New Zealand Department o f Labor, 1898, p. v.
« Bulletin o f the United States Bureau of Labor, No. 49, pp. 1241, 1242.

GOVERNMENT INDUSTRIAL ARBITRATION.

513

labor situation under the existing awards than there was when the
law went into operation. Quite the reverse.”
In connection with this matter of multiplication o f cases, one ex
treme abuse o f the law has occurred which grows out o f the fact that
any seven men may form a union and register, and then a majority of
the seven, or but four, may secure a reference of a case, which will
affect the entire industry. Judge Backhouse reports that there have
been instances, though apparently rare, in which a handful of men
have by this means caused great annoyance where before no friction
between employers and employees existed, and that labor “ agitators ”
have made use o f such possibilities to stir up trouble.
On the other side of the record, with reference to strife created by
the arbitration system, is the number of cases in which employers
and employees have by themselves come to agreements concerning
terms o f employment and of their own motion put these agreements
under the compulsion of the system as to enforcement by registering
them as industrial agreements under the arbitration act. Thus up
to the close o f 1904 a total o f 124 such voluntary agreements under the
law are recorded in the volumes of Awards, etc., including, by years
ended June 30, 2 in 1897, 2 in 1898, 6 in 1899, 16 in 1900, 28 in 1901;
for the eighteen months July, 1901, to December, 1902, 35; and by
calendar years, 16 in 1903 and 19 in 1904. Besides the above, four
cases are reported in 1904 in which additional employers registered
their concurrence in already existing agreements. The great ma
jority of these industrial agreements, it may be noted, were for the
renewal with or without modification of expired awards or agree
ments made before boards, or for the making o f terms in one district
on the basis o f an award or recommendation in another.
EFFECT ON INDUSTRIAL PROSPERITY.

Perhaps the most serious general charge made by adverse critics of
the New Zealand system is that, even though it has practically done
away with strikes and lockouts, it has been a serious drag upon the
industrial development o f the colony. The charge, however, does
not appear, upon examination, to have any substantial basis in fact.
In the first place it is certainly true that the period of the law’s
operation has been one of prosperity and marked expansion of indus
try. The secretary o f the department of labor reported in 1895 that
signs o f a revival after the depression of 1893-94 were then visible,
and in 1896 that the upVard tendency had been sustained, and
annually thereafter repeats his report of a year o f pronounced pros
perity. The growth in manufacturing industries is indicated by the
50—-No. 60—05

------- 9

514

BULLETIN OF THE BUREAU OF LABOE.

following figures, showing the number of employees in factories
registered under the factory la w :
EMPLOYEES IN FACTORIES REGISTERED UNDER THE FACTORY LAW, NEW
ZEALAND, 1895 TO 1904.
[From the Report of the New Zealand Department of Labor, 1904, for number of em
ployees, and report for each year for number of factories.]

Year.

1895.........................
1896..........................
1897..........................
1898.........................
1899..........................

Number Number Increase
in em
of facto of em
ployees. ployees.
ries.
(a)

4,647
5,177
5,601
6,386

29,879
32,387
36,918
39,672
45,305

(«)
2,508
4,531
2,754
5,633

Number Number Increase
in em
of facto of em
ries.
ployees. ployees.

Year.

1900..........................
1901..........................
1902..........................
1903..........................
1904..........................

6,438
6,744
7,203
7,675
8,373

48,938
53,460
55,395
59,047
63,968

3,633
4,522
1,935
3,652
4,921

* Not reported.

This shows an increase o f 114.1 per cent in number of employees
during the ten years under the law. By means of the quinquennial
census figures a comparison of 1901 with the year 1891—a prosperous
year before the crisis of 1893—may be made, which shows for 1901,
with* 23.3 per cent greater population, 40.3 per cent more establish
ments and 62.8 per cent more employees, nearly all of this increase
having occurred under the arbitration system in the last half of the
decade.
EMPLOYEES IN FACTORIES AT EACH QUINQUENNIAL PERIOD, NEW ZEALAND,
1891 TO 1901.
[The figures in this table are from the census of 1901 and differ from those in the pre
ceding table because the definition of a factory as used by the census officials includes
less than that adopted by the labor department.]
Number Number Increase Popula
tion of
of facto of em
in em
col
ries.
ployees. ployees. the
ony.

Year.

1891..................................................................................................
1896..................................................................................................
1901..................................................................................................

2,254
2,459
3,163

25,633
27,389
41,726

(«)
],756
14,337

626,658
(a)
772,719

« Not reported.

To indicate how general among the different industries the growth
has been the table below is given, which shows the increase in employ
ees between 1895 and 1904 for the manufacturing industries which
employed 1,000 or more persons in the latter year. The reports
o f the secretary o f labor, it may be added, show that other lines
besides manufacturing—notably the building trades—have shared in
the growth.

515

GOVERNMENT INDUSTRIAL ARBITRATION.

EMPLOYEES IN NEW ZEALAND MANUFACTURING INDUSTRIES EMPLOYING
1,000 PERSONS OR OVER IN 1904, COMPARED WITH TOTAL EMPLOYEES IN
1895.
[From figures in the Report of the New Zealand Department of Labor, 1904, chart oppo
site p. 94.]

Industry.

Total employ
ees.
1895.

1904.

Bread and confectionery............
Butter and cheese........................
Boots and shoes............................
Cabinetmaking and upholster-

1,380
231
2,568

3,187
1,233
3,081

Coach building and blacksmithing.....................................
Dressmaking................................
Engineering..................................
Flax milling..................................
Laundries............................' .......
Meat, fish, and bacon preserv
ing ...............................................

718

1,975

1,739
2,563
1,222
261
209

3,570
5,282
3,047
2,639
1,245

1,661

3,060

Industry.

Total employ
ees.
1895.

Plumbing, tinsmithing, and
gas fitting..................................
Printing and publishing............
Saddlery.......................................
Sawmilling, joinery, sash, and
cooperage..................................
Tanning, currying, fellmongering, and wool scouring___
Tailoring and clothing..............
Woolen-milling...........................

1904.

709
2,289
486-

1,643
2,990
1,093

2,627

6,434

1,091
3,214
1,039

2,147
5,966
1,692

The above figures certainly indicate general prosperity in the col
ony. They do not, of course, prove that the prosperity might not
have been even greater i f there had been no arbitration law. But
bearing upon this there is the testimony o f the impartial investigators
upon the ground, which is very positive. Thus Sidney and Beatrice
Webb say:
We can only add our personal testimony to that given by every
careful investigator into the circumstances of New Zealand, that
there is so far no evidence of injury to its industrial prosperity. (a)
Judge Backhouse, speaking generally, says:
I should say that my investigation showed that, with possibly one
exception, industries have not been hampered by the provisions of
the act.(*&)
The New South Wales commissioner took pains to collect as much
evidence as possible upon this question. He made it a point to look
up cases in which it was alleged that capital had stayed out o f an
enterprise because of awards of the court, and he reports that he
“ found it more than difficult to get specific instances,” and that “ any
cases which were mentioned1, on investigation, hardly bore out the
view put forward ” and cites specific examples of that kind. Fur
ther, he examined especially as to the condition of the principal in
dustries which have been affected by awards (mentioning specific
ally in his report building, coal mining, shipping, clothing manu
facture, and the iron trades), but could find no evidence that any of
them, with perhaps one exception, “ had been crippled or hampered
seriously by the introduction of compulsory arbitration.” (°) The
Victoria commission (d) reports that “ We obtained no definite evi
esIndustrial Democracy (1902 ed.), p. xlvii.
&Report of the New South Wales commission, p. 15.
o Report of the New South Wales commission, pp. 15,17.
d Report of the Victoria commission, p. xxii.

516

BULLETIN OF THE BUREAU OF LABOR.

dence that the fixing o f wages under the law has impeded or pre
vented the expansion o f commercial undertakings in the colony,”
with one exception. Finally, Doctor Clark, (a) in a discriminating
consideration o f the question, finds the general facts thus:
It would seem to an observer coming from outside the colony that
the effect o f the arbitration law upon industrial development and
general business prosperity had been very greatly exaggerated by
both its advocates and its opponents. There is no more occasion to
attribute the expanding commerce and manufactures o f the colony to
labor legislation than there is to ascribe the rise and fall of the
tides on our Atlantic coast to the river and harbor bill. * * *
D n the othjer hand, there is.no evidence to show that the labor laws o f
New Zealand have seriously hampered industry as a whole, or have
prevented the investment o f capital sufficient to maintain her indus
trial growth, even during the period o f abnormal expansion that has
just preceded. * * * There is no evidence to prove that the gen
eral flow o f capital to and from the colony has been materially affected
by the-passage o f that act [the arbitration law] or by its subsequent
operation. * * * There are probably special instances where
investors have hesitated to put money into enterprises and where new
undertakings have been discouraged by the fear that they might be
hampered by the regulations o f the court. * * * But cases o f this
sort reported were not numerous nor important, and they were greatly
outweighed by the instances where new factories had been started and
old ones extended since arbitration had been legally enforced.
’ The one notable exception in the colony’s general prosperity, sev
eral times alluded to above, is the boot and shoe industry, which all,
including the colony’s secretary for labor, agree has not prospered in
recent years. This fact does not appear so distinctly in the above
table, comparing number o f employees in 1904 and 1895, as in the
following comparison o f number o f employees in the industry in the
years 1898 to 1904, the figures being as given in the annual reports
o f the department o f labor:
EMPLOYEES IN BOOT AND SHOE INDUSTRY, NEW ZEALAND, 1898 TO 1904.
Year.
1898.........................................................
1899..........................................................
1900..........................................................
1901..........................................................

Total em
ployees.
3,158
3,230
3,136
3,087

Year.

Total em
ployees.

1902..........................................................
1903.........................................................
1904..........................................................

(a)
3,050
3,081

° Not reported.

Judge Backhouse, the Victoria commission, and Doctor Clark all
gave special consideration to the condition o f the boot and shoe
industry, and all agree that the evidence shows that under the con
ditions fixed by the court’s awards this industry has been unable
to hold its own against the* keen competition o f the foreign, especially
«Bulletin of the United States Bureau o f Labor, No. 49, p. 1235. et seq.

GOVERNMENT INDUSTRIAL ARBITRATION.

517

American, made goods with which the industry has had to contend.
That wage conditions alone, as fixed by the court, have been the sole
factor in producing this situation does not seem a warrantable con
clusion, however. Another important factor has been the more highly
specialized processes of manufacture on a large scale, which character
ize the industry in the United States and Europe. This the secre
tary for labor, discussing this subject in 1902, (°) was inclined to
give as the chief explanation of the situation in the boot and shoe
industry o f the colony, and the Victoria commission reports(*6) that
importers and manufacturers in New Zealand admitted that— The decline in home manufactures is largely attributable to special
ization o f work in the processes of bootmaking and diminished cost of
production by the use of the finest machinery at places like Boston
and Northampton.
Aside from the boot trade, doctor Clark states(c) that “ a number
of minor instances wTere reported where, after an award had been
granted, the price of articles produced under the awards was in
creased to an extent that discouraged home production,” but that spe
cific instances o f this kind were not important in themselves, and
Doctor Clark remarks in this connection that “ the court takes trade
conditions into account in making awards (as heretofore indicated)
and it is only when inexperience with the details of a case or deficient
information as to real trade conditions leads to an error in an award ”
. that such cases as the above occur.
Such cases as that in the boot trade and the others just alluded to,
it will be seen, represent a class in which the power o f the court to
impose at will what it may consider fair conditions for labor is
strictly limited by foreign competition, and there is no remedy avail
able by any provision for extension o f awards which has preserved
the court’s freedom in this direction so far as any competition
within the colony is concerned.
It is generally conceded that there has been an increase in the cost
o f living in New Zealand as a result o f the higher wages awarded
by the court. Doctor Clark remarks in this connection that the
United States “ has experienced perhaps an equal relative rise in
prices within the last eight years,” and the secretary for labor in
his 1902 report urged that the rise in wages really carried little dis
advantage since its effect was to increase the workman’s capacity
as a buyer in the colony’s markets, and so contributed to general
prosperity. Doctor Clark, however, points out that there may be a
problem ahead in these rising prices, since the New Zealand farmers
sell their goods in a foreign market in competition with goods pro
fitReport of the New Zealand Department o f Labor, 1902, p. ii.
&Report of the Victoria commission, p. xxiii.
c Bulletin o f the United States Bureau of Labor, No. 49, p. 1238.

518

BULLETIN OF THE BUREAU OF LABOR.

duced by nonaward protected wage-earners, and what the farmers,
who thus have the prices o f their commodities fixed by foreign
markets, might think o f rising prices o f other commodities at home
under award wages in case the foreign prices o f theirs should fall
is problematical and all the more serious a question because the
farmer holds the dominant vote in the colony. A t present, however,
this seems to be mainly a possible problem for the future, since now
the New Zealand farmers are enjoying a high degree o f prosperity,
although the Victoria commission reported (a) that complaints were
heard from farmers over their position, as above indicated.
ATTITUDE OF PUBLIC OPINION.

In conclusion, it remains to notice the attitude of public opinion in
New Zealand toward the arbitration system. On this, Doctor Clark’s
testimony-, ( 6) as being the latest and, on the whole, most complete
and discriminating, is perhaps most authoritative and, it may be
added, is not controverted in any important respect by other outside
observers. His general conclusion is that opinion is divided, that
u workingmen as a class are in favor of, and employers as a class are
opposed to, the present arbitration law.” He says, however:
It is doubtful if there is an employer of importance in New Zealand
who would return voluntarily to the system o f strikes. They would
amend and modify, probably entirely remodel, the present legislation,
but they would retain in some form or other its* essential principle.
Public opinion in the colony has been cultivated into a position
where it would hardly tolerate again a free fight between employers
and employees.
A U S T R A L IA .
Four Australian colonies and the Commonwealth o f Australia have
enacted laws with a view to the peaceable settlement of collective dis
putes between employers and workmen. The first to pass such a law
was Victoria in 1891, followed by New South Wales in 1892, South
Australia in 1894, while the fourth, Western Australia, passed its
first act in 1900, and the Commonwealth passed an arbitration law in
1904. The inspiration to such legislation in the first three mentioned
came from the great maritime strike of 1890, which seriously affected
all Australia and ranks as the greatest industrial dispute ever known
in that country.
VICTORIA.

In Victoria as early as 1887 a royal commission on employees in
shops recommended the establishment of courts of conciliation for all
a Report of the Victoria commission, p. xxvi.
&Bulletin of the United States Bureau of Labor, No 49, pp. 1248, 1249.

GOVERNMENT INDUSTRIAL ARBITRATION.

519

disputes, patterned after the French councils of prudhommes.(a)
Nothing came o f this recommendation of the commission, but in 1890
a bill was introduced in the legislative assembly and after failing
o f passage that year and being reintroduced the following year, be
came the law o f December 22,1891.
act

1891.

This act is an adaptation of the English Councils of Conciliation Act,
1867, much o f it being taken verbatim from that law. The funda
mental difference between the English and the Victorian acts lies in
the fact that while the former was so drawn as to be confined mainly
to individual disputes for which compulsory arbitration was pro
vided, the latter is designed solely for collective disputes and the
voluntary principle is preserved throughout.
Though involving some repetition o f the description o f the English
act, for the sake o f clearness the Victorian law in full is here summa
rized. Any number o f employers and employees o f a locality may
agree to form a council of conciliation and jointly petition the gov
ernor in council for a license to be issued at the discretion o f the gov
ernor. Every licensed council must be composed of equal numbers
o f employers and workmen, not less than two nor more than ten of
each, the number of members and the trade or trades for which the
council is established to be inserted in the license. Within thirty
days o f the granting of the license the petitioners shall elect the mem
bers o f the council at a time and place specified by the governor.
Each council shall elect its own chairman and clerk and such other
officers as it chooses. The chairman, who may take part in delibera
tions but has no vote, is not to be chosen from the members of’ the
council. In case there is failure to elect members or chairman, the
governor in council may appoint them.
After the formation of a council there shall be annual elections of
members, employers and workmen electing their members in sepa
rate assemblies. For the purpose o f elections the clerk of each coun
cil shall keep a register o f employers and employees in separate lists,
whereon he must register, under pain of fine, all qualified voters. A ll
persons may register who have been occupied in the trade within the
district for six months previous to the election, except uncertificated
insolvents and convicted criminals. Anyone entitled to vote may be
elected to membership in the council. The clerk of the council shall
be the returning officer of elections.
Whenever any dispute arises between employers and workmen,
either party or both may bring the matter before a council by written
a The final report of the Victoria commission is reproduced in the Report of
the New South Wales Royal Commission on Strikes, 1891, pp. 78, 79.

520

BULLETIN OF THE BUREAU OF LABOR.

complaint to the chairman. When so submitted the case shall first
be referred to a committee o f conciliation, consisting of one employer
and one workman, appointed by the council, who shall endeavor to
bring the parties to an agreement. I f this effort fails, the matter
shall be laid before the council sitting with at least one-half the mem
bers and with equal numbers o f employers and workmen present.
A t hearings before the council evidence may be taken on oath and books
and papers called for, “ and every means used to show to the parties in
difference what ought to be done in the matter in dispute,” (a) and
the council may make written suggestions or recommendations
thereon. Counsel or agents shall not be allowed at hearings except
by consent o f both parties.
I f the dispute remains still unsettled, the council may, at a subse
quent meeting, called for the purpose by a three-fourths vote of the
members present at the first hearing, submit the case for arbitration
to “ some indifferent person ” appointed by the council and approved
by the parties. The arbitrator may take evidence on oath, and shall
deliver his award to the clerk of the council, by whom it is to be laid
before the council, and the council shall inform the parties of its
purport. It is expressly declared that “ no such award shall be taken
into or enforced by any court of law.”
The Victoria act of 1891 went into effect on January 1, 1892, but
with a view o f its provisions its history is complete, as, like the Eng
lish law, which it copied, it was never anything but a dead letter,
since, according to a statement by the undersecretary o f the colony
in 1896* no resort to the law had been made up to that time, and none
has occurred since.
PROPOSED COMPULSORY ARBITRATION.

In connection with the colony of Victoria it remains to note the
recommendation o f a compulsory arbitration system made by that
colony’s royal commission on its Factories and Shops Acts, to whose
report frequent reference has already been made in the chapter on
New Zealand. The special subject of investigation before this com
mission was the minimum wage boards established in Victoria by the
Factories and Shops Act of 1896. By an amending act of 1900 it was
provided that the act of 1896 and subsequent amendments should
remain in force for two years and thereafter to the close of the next
ensuing session of Parliament, and also that within twelve months of
the commencement of the act of 1900 a royal commission should be
appointed to investigate and report at pleasure upon the working
o f the law. Such a commission was appointed in June, 1900, and pre
sented its report in February, 1903.

o Sec. 12 o f the law.

GOVERNMENT INDUSTRIAL ARBITRATION.

521

Besides examining into the working of the minimum wages boards
o f Victoria the commission made a study of the compulsory arbitra
tion systems o f New Zealand and New South Wales, visiting the
former colony at least, for this purpose. This attention was not given,
to the New Zealand and New South Wales systems, because these cor
responded in purpose with the system of minimum wage boards in
Victoria. On the contrary, the former were designed to eliminate
the industrial warfare of strike and lockout, while the latter was set
up to abolish sweating conditions in various industries by providing
a method for fixing minimum wages, with the way perfectly open for
labor disputes and strikes and lockouts over questions o f higher
wages or other conditions.
But while differing thus fundamentally in purpose, both systems
involved, especially in their practical operation, the essential principle
o f State regulation of the labor contracts, the one as respects any of
the terms o f employment, the other as respects wages. As already
indicated the most conspicuous feature in the practical operation of
the New Zealand arbitration system (recognized as its logical out
come by New South Wales, as noted below) was the constant develop
ment o f the compulsory features of the system, with the State regula
tion necessarily involved therein, to the exclusion o f the voluntary,
and as a matter o f fact the Victoria minimum wage boards, established
originally to deal only with those industries where sweating was a
conspicuous evil, have in practice developed beyond this original
antisweating purpose and more and more in the direction o f the
regulation o f wages generally. (°)
The results o f the commission’s comparison o f systems led them to
recommend the adoption of compulsory arbitration in place of the
existing minimum wage-board system, and they presented a detailed
plan for proposed arbitration tribunals. This was an adaptation of
the New Zealand and New South Wales systems, and the following
summary by the commission ( *6) reveals the important changes which
it was proposed to make in those systems:
In deciding to recommend the establishment o f conciliation and
arbitration tribunals in this State to deal with industrial disputes
and other matters which, at the present time, are only partially dealt
with by wage boards, we have taken great pains to adapt to the
requirements o f our local conditions the best features of the New
Zealand and New South Wales acts. One of the most important
changes in the constitution of the lower tribunals is the proposed
creation o f these bodies as courts and not as boards, with power to
deal in the first instance with all industrial disputes referred to them,
®Cf. Doctor Clark’s report on “ Labor conditions.in Australia” in Bulletin of
the United States Bureau of Labor, No. 56 (January, 1905), pp. 61, 62.
6 Report o f the Victoria commission, p. lxvi.

522

BULLETIN OF THE BUREAU OF LABOR.

and to either confirm an industrial agreement between the parties
when such can be arrived at, or, failing such agreement, after an
interval o f fourteen days, to make an award for a period of six
months. This proposal commends itself to reason and common
sense, as one o f the chief defects of the New Zealand law is the want
o f power o f the boards to make awards even for the shortest term.
This causes many appeals to the arbitration court which should be
quite unnecessary. In dealing with the important position of chair
men o f the conciliation courts we provide that they shall be in each
case police magistrates, nominated for appointment by the chief jus
tice o f the supreme court. Under procedure we propose to exclude
lawyers from practicing in the courts in order that the proceedings
may be as plain and simple as possible and free from undue delays
or postponements. The court o f arbitration is to be a court of appeal
only, reviewing the conciliation courts’ awards, and is to consist o f a
supreme court judge and two lay members. In providing for the choice
o f members o f both tribunals we recommend the double-election sys
tem, viz, first, the employers and employers’ [employees’] unions are
respectively to elect delegates, and then the delegates on each side
elect persons to be nominated as members of the courts. A ll refer
ences o f disputes to the courts, we propose, shall be made by an
employer, a two-thirds majority of the members o f an industrial
union, or by the registrar of the arbitration court. In the matter o f
registration o f industrial unions of employees, to enable them to come
under the provisions of the act, we provide that not less than 15 must
register when there are 30 or more bona fide workers in an industry.
When there are less than 30, not less than one-half of the total number
must .register. Two or more employers, or any employer, company,
corporation, or association who, or which, during the previous six
months has had not less than 50 employees, may also register. Trade
unions are to be parties to industrial agreements, and to be bound by
awards o f the courts. The stringent provisions o f the New South
Wales law fixing heavy penalties for strikes or lockouts, or breaches
o f awards, are embodied, and, under the definition of terms, it is pro
posed to exclude rural industries and domestic service from the opera
tion o f the act.
The Victoria Parliament has not seen fit so far to adopt the recom
mendation o f the commission in favor of compulsory arbitration.
Instead the Factories and Shops Act (providing for the wage boards),
which expired by limitation on October 31, 1903, was replaced the
same year by a pew act continuing the same system, amended in some
points (chiefly by a provision for a court of appeals to which appeals
from board decisions as to wage rates may be taken), but without
change of its essential character.
N E W SOUTH W AL ES.

The earliest proposal of legislation on the subject of industrial
arbitration and conciliation in New South Wales was in 1887, when
a bill was introduced for permanent councils of conciliation and for

GOVERNMENT INDUSTRIAL ARBITRATION.

523

voluntary arbitration, but with compulsory awards where the parties
should agree to be bound thereby. (a) This bill got little beyond
introduction, however, and no further measure was proposed until
the maritime strike of 1890 forcibly directed attention to the subject.
That conflict led to the appointment in New South Wales o f a
royal commission on strikes in November, 1890, to investigate the
whole subject o f the causes of strikes and the means of avoiding or
settling such disputes. This commission reported in May, 1891, and
a bill based upon its recommendations was introduced in August of
the same year. Owing to a change of administration this bill failed
of passage, but in 1892 another measure, embodying much that was
in the former bill, though by no means identical with it, was intro
duced and, being speedily passed with very little opposition, became
the law o f March 31, 1892, known as the Trade Disputes Conciliation
and Arbitration Act, 1892.
TH E TRADE DISPUTES CONCILIATION AND ARBITRATION ACT,

1892.

This act provided that the colony should either be divided by the
governor into industrial districts, not more than five in number, or
the governor might decide that the wThole colony should be treated
as one district, and in each district a council o f conciliation should be
established, and for each the governor should appoint a clerk of
awTards. I f the colony should be divided into districts, each council
o f conciliation was to be composed of four members appointed by the
governor, two* upon recommendation of a majority o f the employers’
organizations and two upon similar recommendation by the employ
ees’ unions o f the district. In case the colony was treated as one dis
trict, the one council o f conciliation was to be composed of not less
than 12 nor more than 18 members, appointed in the same manner
as above. Recommendation of members could be made only by such
employers’ and workmen’s organizations as were registered under the
Trade Union Act of 1881. Members of councils were to hold office for
two years. For the entire colony one council o f arbitration was pro
vided, consisting of three members appointed by the governor for
two-year terms. Two of these members were to be appointed in the
same manner as members of councils o f conciliation—that is, one each
on recommendation of the employers’ and the workmen’s organiza
tions. The third member, who was to be president of the council,
was to be an “ impartial person ” appointed either upon recommenda
tion of the other two or, failing such recommendation, independently
by the governor. The president must not be engaged in any employ
ment outside the duties of his office.
« This bill may be found in the Report o f the New South Wales Royal Com
mission on Strikes, p. 68.

524

BULLETIN OF THE BUREAU OF LABOR.

The act contemplated the reference o f disputes first to the council
o f conciliation, and then, if no settlement could be reached before that
body, to the council o f arbitration. The parties might, however, by
mutual agreement, refer the case directly to the council o f arbitration
in the first instance. Reference o f a dispute to the council o f con
ciliation was to be made by either (1) a joint agreement o f the par
ties to so refer it or (2) an application for reference by one party,
the application in either case being made to the clerk o f awards and
by him laid before the council summoned by him for the purpose.
The above is all that was specified in the statute as to the mode of
reference. But under subsequent regulations, issued by the governor
with approval o f Parliament, as authorized by the law ,(a) it was pro
vided that where but one party applied for reference to conciliation
the clerk o f awards was to notify the,opposite party, specifying a
limit o f fourteen days within which a “ reply ” agreeing to the refer
ence might be made. It is to be noted that the other party was per
fectly free to make no reply and refuse assent to the reference and
that in such a case the reference was blocked. Practically, therefore,
cases could be brought before councils o f conciliation only by consent
o f both parties.
For the hearing o f a case when referred to it, the council o f .con
ciliation was always to consist o f four members. In case the colony
were treated as one district the parties to the dispute were each to
designate two members from the one standing council for the colony
or any two persons from outside that body, the latter ’to be approved
by the governor o f the colony. The duty o f the conciliation coun
cil was to seek to bring the parties to an amicable agreement. I f it
failed in this, its powers and duties were to end and the result was
to be reported to the clerk o f awards. The case could then be car
ried to the council o f arbitration by an application from one party
to the clerk o f awards. For the hearing o f cases referred for arbi
tration the four members o f the council o f conciliation might sit
with the council o f arbitration, but only for the purpose o f informing
the latter when called upon and were to have no voice in the deci
sion. Within one month after the completion o f a hearing the
council o f arbitration was to render its award, signed by a majority
o f its members, and this was to be made ’public. The award was
to have no compulsory force except as the parties had previously
agreed in writing to be bound by *it. I f both parties had so agreed,
the award might be made a rule of the supreme court upon applica
tion by either party.
A t hearings no counsel or attorneys were to appear, but parties
might each appoint not more than three persons to conduct their
a Two such regulations were issued, one of June 23 and the other o f Sep
tember 6, 1892.

GOVERNMENT INDUSTRIAL ARBITRATION.

525

cases, and these representatives might be paid agents i f they them
selves were directly interested in the dispute. Hearings before a
council o f conciliation might be either public or private, but those
before the council of arbitration were always to be public.' To both
councils full power was given to compel the attendance and testi
mony o f witnesses, and they might enter and inspect premises for
the purpose o f securing evidence. Members of councils of concilia
tion were to receive remuneration for each sitting while engaged in
hearings, but members of the council of arbitration were to receive
salaries as well as fees for sittings. The expenses under the act,
except those o f the parties and witnesses, which were to be borne by
the parties, were to be met by appropriations o f Parliament.
Finally, as to the disputes within the jurisdiction of the act, the
only limitation set was in the exclusion o f all those in which fewer
than 10 employees were concerned. One section of the law enumer
ated the subjects o f dispute within its scope, but the classes therein
mentioned covered essentially all subjects of collective disputes.
By the terms o f the act it was to continue in force for four years
from March 31, 1892, the date upon which it became law. It went
into practical operation with the issuance of the regulations o f June
23 following. It’ was decided to treat the whole colony as one district,
and one clerk o f awards was appointed therefor. It was: further de
cided that the standing council of conciliation should number 16
members. A ll the trades of the colony were grouped iii 8 classes,
and two members of the council, one representing employers and the
other employees, were appointed from each class. The organizations
registered under the Trade Union Act up to June 30, and which were,
therefore, entitled to make recommendation o f members, comprised
124 employees’ unions and 7 employers’ associations. O f these, how
ever, but 55 of the former and 4 of the latter made recommendation
within the required time limit. (a) The proportion of workmen’s
unions making recommendations is not, however, correctly repre
sented by the above figures, for the reason that 124 was the number
o f unions on the books of the registrar of trade unions and friendly
societies, and included many lapsed organizations which had failed
to withdraw their names. The registrar reported at the time that
“ it was certain that nearly all the organizations which have failed
to vote are defunct.” ( 6) A considerable majority, at least, of the
unions actually in existence made recommendations.
« Eight other employees’ unions sent in recommendations after the expira
tion of the time limit.
ft Manual of the Trade Disputes Conciliation and Arbitration Act, 1892 (pub
lished by the clerk o f awards in 1892), p. 52. In 3893 the clerk estimated, on
the basis o f returns to inquiries addressed by him to the unions, that the num
ber then in existence was not over, and probably under, 92, although there were
134 on the books of the registrar o f trade unions at that time.

526

BULLETIN OF THE BUREAU OF LABOR.

The clepk o f awards and members of both councils having been duly
appointed and offices established, the system Yvas fully organized on
October 13, 1892, when the president x>f the council of arbitration
delivered an inaugural address before the members of both councils,
Within the next few weeks systematic efforts were made to bring
employers and employees generally to the support o f the system, but
with scant success. In November a meeting of employers’ repre
sentatives was held, to which 14 associations o f employers had been
invited to send delegates. Only 4, however, responded, the rest
sending either refusals or apologies. A week later a more successful
meeting o f trade unions was held, 44 organizations being represented.
The president o f the council o f arbitration laid before this meeting a
proposal that the unions should make it a rule to refer all disputes
likely to lead to strikes to one or other of the councils, and copies of
such a rule suggested for incorporation into the laws of each organi
zation were distributed to those present. Subsequently copies were
sent to all the trade unions in the colony with request for a report as
to the result of its consideration. Out of 102 unions to whom copies
were addressed acknowledgments were received from but 28, and of
these only 5 adopted the rule. Five others said they already had
provision in their rules for reference of disputes to conciliation, 10
declined to adopt the rule, and 8 reported that the number of their
members employed by any one firm was less than 10, and hence they
did not come under the act.
This inauspicious beginning proved to be but the forerunner of a
record o f almost complete failure of the law, as appears in a report
by the clerk o f awards made October 1, 1893. (a) Up to that date—
that is, one year from the time that the machinery for procedure
under the act had been fully established— attempts to apply the law
had been made in 16 disputes. In only 2 of the 16 was a settlement
effected. In one o f these an agreement was brought about before a
council o f conciliation and in the other by an award of the council
o f arbitration to which the case had by mutual agreement been sub
mitted in the first instance.
In the other 14 cases not only was no settlement effected under the
act, but in none o f them did proceedings get as far as a hearing before
either council. In 8 cases a formal application for conciliation or
arbitration was made by the employees, but in every case was refused
by the employers, while in the other 6 the proceedings got no further
than informal negotiation by the clerk o f awards with a view to
inducing parties to resort to the act, which they declined to do, how
ever, as being either unacceptable or unnecessary. This informal
negotiation by the clerk of awards was not authorized by the law,
a Report on Industrial Disputes and Claims, 1893.

GOVERNMENT INDUSTRIAL ARBITRATION.

527

but was nevertheless undertaken as being very desirable and not
prohibited by the act. Finally, it is to be noted that out of the 14
cases for which details are given in the report, in none did employers
o f their own motion turn to the act, while in 8 the workmen resorted
to it upon their own initiative. In the other cases the clerk o f awards
took the first steps to bring the act into play. Further, aside from
the two disputes which were settled, in no case did workmen decline
to resort to the act, their readiness therefor being reported in all but
two, in fact, while in every one the employers did so decline.
The above facts indicate the chief cause of the failure o f the act,
namely, an unfavorable attitude toward it on the part o f employers.
As either party to a dispute was free at all times to refuse proceed
ings, such opposition was necessarily fatal to the law.
The explanation o f this attitude on the part of employers, as sug
gested by the clerk of awards in his report, is to be found in the
fact that at the time the act went into effect circumstances in the
colony were such as to place the employers, as compared with the
working people, in an altogether dominant position. This was the
result o f two chief factors. In the first place, the great maritime
strike in 1890 ended with victory for the employers, and gave a great
impetus to the principle of association among them in the next suc
ceeding years, while the trade unions came out of that struggle
defeated and impoverished. Second, the years after 1890 were years
of general commercial depression, culminating in the crisis of 1893,
which put the unions at the further disadvantage of having to face
a falling labor market. So decisively superior was the strength of
employers under these circumstances that, according to the statement
o f the clerk of awards, during the years 1891 to 1893, a period notable
for the number and bitterness of its industrial disputes, “ every strike
that could be regarded as significant had failed to attain its
purpose.” ^®) The employers, being thus in a position to enforce
their oWn terms, and with the prevailing hard times furnishing either
sound reason or ready excuse for refusing concessions to employees,
were little inclined to adopt methods of conciliation and arbitration,
and the fact that previous to 1890 conditions had been just the reverse
with the unions dominant was by no means calculated to soften that
attitude.
The Trade Disputes Conciliation and Arbitration Act of 189*2 hav
ing proved so unfruitful, Parliament refused to appropriate further
funds for its expenses after 1894, and the councils of conciliation and
arbitration went out of existence with the close of that year. The
system, therefore, failed to survive the four experimental years for
which it wxas passed. Early in 1895 an effort was made to amend the
« Report on Industrial Disputes and Claims, 1893, p. 3.

528

BULLETIN OF THE BUREAU OF LABOR.

act so as to give the council of arbitration power to compel parties to
a dispute to come before it for the purposes of public investigation
into the causes o f the controversy. This attempt to open the way for
positive interference by the council, instead o f leaving all initiative
to the parties, was unsuccessful, however, and the act expired by
limitation on March 31,1896.
TH E CONCILIATION AND ARBITRATION ACT,

1899.

Four years and one month later another law went into effect,
namely, the Conciliation and Arbitration Act of 1899, assented to
April 22 o f that year and in force on May 1 following. This act con
fers upon the minister of public instruction, labor, and industry in
New South Wales the same pdwers with reference to conciliation and
arbitration proceedings (a) as are conferred upon the board of trade in
England by the act of 1896, the corresponding sections being taken
verbatim from the Englisbr act.(**6) That is, whenever a difference
.between an employer and his workmen “ exists or is apprehended ”
the minister may (1) direct inquiry into the causes and circumstances
o f the difference; (2) take any steps he deems expedient to bring the
parties together for amicable negotiation; (3) on the application of
either party appoint one or more conciliators; and (4) on the applica
tion, o f both parties appoint an arbitrator. The colonial act adds to
the above, however, one very important provision by providing that
where efforts for an amicable settlement of a dispute fail the minister
may direct a public inquiry into the causes and circumstances of the
difference upon the application of either party, such inquiry to be
conducted by a judge of the supreme or district courts or the presi
dent o f the land court. The original bill made this inquiry obliga
tory upon the conditions named, but Parliament, after devoting most
of its discussion of the measure to this point, amended it so as to
leave the inquiry to the discretion of the minister. The only other
important provision o f the act confers upon “ any arbitrator or per
son authorized by the minister to conduct a public inquiry ” the right
to enter and inspect premises, and full power to compel witnesses,
including the parties, to appear and testify. This latter provision
was copied from the old act of 1892, as were also one or two others
dealing with minor details.
Compared with the law of 1892 this act of 1899 is notable on the
one hand for its simplicity, on the other for the larger possibility of
its utilization. The old law set up elaborate machinery, but made its
operation contingent upon the acquiescence of both parties to a dis
« The English provisions for registration of conciliation and arbitration boards
and for Government aid in their establishment are omitted in New South Wales.
6 Of. supra, pp. 402,403.

GOVERNMENT INDUSTRIAL. ARBITRATION.

529

pute. The later statute creates no machinery, but opens the way for
government mediation without application from contestants and for
public investigation upon the desire o f either one of the parties.
The law o f 1899 went into operation in May o f that year and is still
in force. Up to the close o f the year 1900 there had been but four
cases under it, three in 1899 and one in 1900, although the annual
report o f the department o f labor and industry for 1899 states that
the department record of a dozen or more o f strikes and disputes
probably did not by any means exhaust the list of controversies
which occurred in that year alone. (®) In all four cases under the
act there had been stoppage o f work, three being strikes, the fourth
a lockout. In one the minister of labor and industry intervened upon
his own motion and arranged a conference of the parties, which did
not result in a settlement, however. In another a request for inter
vention was made by the work people, but an attempt by the minister
to bring about a conference failed because o f the refusal of the
employers to participate in it. Thereupon, by request o f the employ
ees, a public investigation was held. But the report made failed to
settle the dispute, because the employers refused to take back the
strikers in a body, which the latter insisted upon, although willing to
accept the report, which was adverse to their demand for higher
wages. In the third and fourth cases settlements were effected by
arbitration. In the one the parties agreed to submit the dispute to
arbitration and at their request the minister appointed an umpire to
preside over a board named by the parties, who had agreed to abide
by the award. In the other the minister took the initiative and
arranged a conference presided over by a conciliator agreed upon by
the parties. No settlement was reached at the conference, but subse
quently, through the mediation of the conciliator, an agreement was
made to refer the case for arbitration to a district court judge. Work
in this case was not resumed pending the decision. When the award
was given the men returned to work, but on their next pay day did
not receive the wages to which they considered the award entitled
them. They therefore took police-court proceedings to recover the
additional sum which they regarded as due them and secured a find
ing in their favor. Thereupon the employer attempted to secure a
writ o f prohibition from the supreme court, but without success, the
court holding that the men’s claim was in accordance with the
award. (b)*
&
a Report on the Working of the Factories and Shops Act, Conciliation andr
Arbitration Act, etc., 1899, p. 10.
&These facts as to results under the law of 1899 are from a statement by the
clerk in charge o f the New South Wales department o f labor and industry in
1900 and the annual reports of the department for 1899 and 1900.

50—No. 60—05

m -----10

530

BULLETIN OF THE BUREAU OF LABOR.

No more favorable results under the act o f 1899 appear for the
year 1901 than for the year and a half preceding. The annual report
o f the department of labor and industry for 1901 could record but
three interventions under the act during that year. Apparently the
department itself took the initiative in all three cases. In one case
(a strike) its efforts were blocked by the refusal o f the employers
to accept either conciliation efforts or arbitration; in another case
(apparently not a strike or lockout) the department opened communi
cation with the parties, but the latter came to a settlement by them
selves; in the third instance (a strike) a conference of the parties was
arranged by the department under the presidency of the minister of
public instruction, labor, and industry, at which a settlement of the
dispute was effected.
Although the New South Wales law o f 1899 still remains on the
statute book, it is altogether likely, as remarked in the report o f the
labor department for 1901, that its record in practical operation will
not extend beyond the above seven cases, owing to the establishment
at the close o f 1901 o f a compulsory-arbitration system, as described
below.
TH E COMPULSORY ARBITRATION L A W OF 1901.
Having essayed voluntary conciliation and arbitration under two
different laws, one o f which had issued in complete failure, while the
other had produced but very meager results, New South Wales turned
her attention to compulsory arbitration, the inspiration thereto com
ing from the experience of her neighboring colony, New Zealand. In
1900 a bill for a compulsory system passed the legislative assembly,
but was defeated in the council. (a) Its discussion, however, led to the
appointment in February, 1901, of a special government commissioner
to investigate and report upon the working o f the New Zealand arbi
tration law in particular and o f the laws o f such other colonies as he
considered necessary. Judge Alfred P. Backhouse, of the district
court of the colony, was named for this mission. Several weeks were
spent by him in New Zealand in a study o f that colony’s arbitration
system, and Victoria was also visited for an examination of its mini
mum-wage boards, and the commissioner’s report was presented to the
lieutenant-governor in July. This report ( *6) makes a printed docu
ment o f 31 quarto pages, 20 of which are devoted to New Zealand and
8 to Victoria. It is marked throughout by an exceedingly judicial
tone and the utmost impartiality.
« Cf. Annual Report of the Department of Labor and Industry, 1900, p. 9.
&Report o f Royal Commission o f Inquiry into the Working o f Compulsory Con
ciliation and Arbitration Laws, Sydney, 1901. Cf. in this connection the chapter
on New Zealand, where extensive use has been made of the report. That por
tion of it dealing with New Zealand may be found in full in the Fifteenth Annual
Report of the New York State Board of Mediation and Arbitration (1901), p. 381.

GOVERNMENT INDUSTRIAL ARBITRATION.

531

Judge Backhouse confined himself solely to the determination and
presentation o f facts as to the working of the laws studied, without
any attempt at criticism or discussion of principles, and made no
recommendation whatever as to legislation in his own colony. In the
light o f his report, however, the New South Wales Parliament voted
for a compulsory-arbitration bill introduced by the attorney-general
o f the colony, Hon. B. R. Wise, who had framed the bill introduced
a year earlier, the result being the Industrial Arbitration Act, 1901,
assented to December 10 of that year. Although amendments have
been proposed, this law of 1901 stood unamended as late at least as
the opening o f the session of Parliament which began in August, 1904.
The author o f the law states that it was carried through Parlia
ment without material alteration, so that it embodies his ideas with
logical completeness. (a) It is based on the New Zealand system, but
with important alterations, calculated, in the opinion o f its framer,
to avoid the “ defects in method and errors o f principle ” which
experience had revealed in that system. The most fundamental of
these changes consists in the elimination o f conciliation entirely,
leaving compulsory arbitration, pure and simple, as the one method
for all disputes. This represents, in principle, a radical departure
from the New Zealand system, but is by no means so wide a departure
from the developments of actual practice in that colony, as may be
seen by reference to the chapter on New Zealand. As there noted,
New Zealand experience has revealed a constant tendency toward
arbitration as the chief function o f its system, a tendency so strong
as to compel concessions in that direction in amendments to the law.
The logic o f this has been interpreted in New South Wales as point
ing to the complete elimination of conciliation features from a com
pulsory arbitration system.
While abandoning the conciliation boards, New South Wales has
retained the same sort o f provision as in New Zealand for industrial
agreements under the law, to be made voluntarily by the parties, but
enforceable like an award o f the court.
As respects arbitration, no such radical departure from the New
Zealand system appears as that with reference to conciliation, but
a number o f important differences appear in the development o f
details. In the constitution of the court o f arbitration no change
o f any account was made save in the mode o f nomination of members
by the unions o f employers or work people. Instead of each union
making a nomination independently, each sends delegates to a con
vention by which the nomination is made. While each convention
may nominate more than one person, it may name but one, so that
this arrangement makes it possible for the representatives o f each
a B. R. Wise, The Industrial Arbitration Act o f New South Wales, in National
Review, 39 : 880 (August, 1902).

532

BULLETIN OF THE BUREAU OF LABOR.

class actually to choose their own member upon the board, and is
evidently designed to secure in any case more general agreement
upon nominees.
Concerning procedure (a) in cases referred to the court, but two
changes o f moment were made. In the first place no limitation is
put upon the employment o f counsel in New South Wales, whereas
New Zealand prohibits their appearance on behalf o f any party with
out the consent o f all the others. In the second place, and more
important, a provision is added in New South Wales for preliminary
hearings before the court’s president to prepare the case for its for
mal hearing by the court. It is provided that any party to a refer
ence may at any time take out a summons returnable before the presi
dent, at the hearing o f which the president may issue such order as
he deems just with respect to all “ interlocutory proceedings to be
taken before the hearing by the court—the issues to be submitted, the
persons to be served with notice o f the proceedings, particulars o f the
claims o f the parties, admissions, discovery, interrogatories, inspec
tion o f documents, inspection o f real or personal property, commis
sions, examination of witnesses, and the place and mode o f hearing.” (b)
In connection with this New South Wales provision it may be noted
that in New Zealand some threshing out o f cases before they reached
the court was necessarily involved in the hearings before conciliation
boards, which, prior to the amendment of 1901, were required in every
case.
It is in the jurisdiction and powers ( c) o f the court that the most
numerous variations from the New Zealand law occur. As respects
jurisdiction there is, in the first place, no specific provision, as in New
Zealand, for disputes in related trades; secondly, not only the gov
ernment railways, as in New Zealand, but also the government tram
ways and certain government harbor, water-supply, and sewerage
undertakings are under the law’s jurisdiction; third, not only must
work people be organized and incorporated by registration under the
law in order to refer disputes to the court, as in New Zealand, but
employers must likewise be registered in order to enjoy the right of
reference, whereas in New Zealand that privilege is open to all
employers whether registered or n ot; further, the right o f registration
for employers is in New South Wales restricted to individuals, firms,
or associations employing in the aggregate at least 50 work people;
finally, in the fourth place, while the right o f reference to the court
is thus strictly limited to those who have registered under the law,
disputes involving those who have not registered, whether employers
or employees, may be at any time referred to the court by the regis
o Cf., supra, p. 467.
&Sec. 30 (1) o f the Industrial Arbitration Act, 1901.
c Cf., supra, pp. 470-475.

GOVERNMENT INDUSTRIAL ARBITRATION.

533

trar, the parties having no option as to the reference. This jurisdic
tion over cases involving unregistered work people and the power of
the government to compel a settlement independently of the parties
are both new to the New Zealand system.
Turning to the powers o f the court, the following, which are pecu
liar to New South Wales as compared with New Zealand, appear:
First, and most important, the court may “ declare that any practice,
regulation, rule, custom, term o f agreement, condition o f employment,
or dealing whatsoever in relation to an industrial matter shall be a
common rule o f an industry affected by the proceedings,” and “ direct
within what limits o f area and subject to what conditions and excep
tions such common rule shall be binding upon persons engaged in the
said industry, whether as employer or as employee, and whether mem
bers o f an industrial union (that is, a registered union) or not,” and
“ fix penalties for any breach or nonobservance o f such common rule
* * * and specify to whom the same shall be paid.” (a) The
author o f the law states(6) that this device of the 46common ru le”
was suggested to him by Sidney and Beatrice Webb in their Indus
trial Democracy. ( c) It takes the place of all the New Zealand pro
visions for the extension of awards, but goes much further, giving
the court the fullest powers for the general regulation o f the condi
tions o f employment. Such general regulation the author deemed to
be the normal development toward which New Zealand experience
pointed and the logical necessity of a compulsory arbitration system
to enable the court to do justice to the demands of labor without
doing injustice between employers. He therefore boldly adopted it,
anticipating that “ it will be the method of compulsion most usually
adopted—that the court will become a sort o f elastic and self-acting
factory act, which will assimilate the conditions o f employment in
each trade to those which prevail in the best conducted establish
ments.” ( 6)
In this provision for the declaration of common rules it will be seen
that the New South Wales court possesses much broader powers than
the New Zealand court with respect to those who have not put them
selves under its authority by registration. It may be added that
this is especially true in the case o f unorganized work people, inas
much as the New Zealand law applies in a very limited degree to
them. (a) But the New South Wales court possesses very much larger
authority also over those who are organized and registered under
the law, whether work people or employers. Thus, for the purpose
o f securing obedience to its award or direction the court may order
« Sec. 37, Industrial Arbitration Act, 1901.
®B. R. Wise, in National Review, 39 : 880.
c Cf. Industrial Democracy (ed. 1902), Part III, Chap. III.
<*Cf. supra, p. 471.

534

BULLETIN OF THE BUREAU OF LABOR.

the suspension o f any member from a registered union for any speci
fied period, or it may order the union’s registration to be canceled.
Further, it is made the duty of the registrar to apply to the court for
cancellation o f a union’s registration whenever he considers there is
good reason therefor or finds that the provisions of its rules which
are required by the law are not lived up to, or that dues or fines are
not being collected, or that the union’s accounts are not being prop
erly kept, and the court may order the cancellation. This power
to cancel a union’s registration independent of its will does not exist
in New Zealand, where cancellation is provided for only upon appli
cation o f the union. Another provision not found in New Zealand
gives the president o f the New South Wales court power to order
the payment by any member of a registered union of any subscrip
tion or fine not exceeding £10 ($48.67), due under the union’s rules,
when applied to by the proper officials of the union.
New South Wales has gone much further than New Zealand in pro
hibition o f strike or lockout. The latter colony simply forbids any
such action or the discontinuance of employment or service while
proceedings under the law are pending. New South Wales applies
the prohibition not only during the pendency o f proceedings but for
bids any such course or the instigation o f or aiding in it “ before a
reasonable time has elapsed for a reference to the court o f the matter
in dispute.” Infringement of this prohibition is punishable by fine
up to £1,000 ($4,866.50) or imprisonment up to two months in New
South Wales, as compared with a fine not exceeding £50 ($243.33) in
New Zealand.
Finally, New South Wales has added a provision to prevent evasion
o f awards by employers, which makes it illegal for any employer to
dismiss an employee because he is a member o f a registered union or
because he is entitled to the benefit of an award, and such employer
is liable to a penalty not exceeding £20 ($97.33) for each employee
so dismissed.
The New South Wales statute is more concisely drawn than that o f
New Zealand, and many points of minor detail covered in the latter
do not appear in the former. The above, however, include all the
important differences between the two statutes, and they mark that
o f New South Wales as the most radical arbitration law in
existence. How radical is perhaps nowhere more clearly indicated
than in the following declaration o f the basic principle o f the law
and its functions in the industrial world made by the court of arbitra
tion, which was established under it, in connection with its first deci
sion in case o f a dispute between employer and employees as to terms
o f employment:
The attitude assumed by the company was, we understand, the out
come of its belief, and no doubt an honest one, that this court could

GOVERNMENT INDUSTRIAL ARBITRATION.

535

not take cognizance of the dispute, and that as a matter of contract,
inasmuch as the union laborers were not bound to work when called
upon, the company was under no obligation to employ them. As a
matter o f contract, apart from the industrial arbitration act, it may
be conceded the view of the company was right, but the absolute free
dom o f contract that existed prior to the passage o f that act has been
considerably modified by its provisions. Freedom o f contract remains
unimpaired in this sense, that parties may still make their voluntary
agreements and may mutually agree to vary or cancel them; but so
far as employer and employed who come within the scope o f the act
are concerned, existing terms and conditions of employment can not
be disturbed at the will o f one party only. The basic principle of the
act is continuity o f industrial employment and operation, with a pro
hibition o f industrial warfare, and o f anything in the nature of a
strike or a lockout, which experience has proved to be a method of
attempting to remedy grievances disastrous to those immediately con
cerned and most inimical to the general welfare. This court is the
sole statutory arbiter of the fairness or justice o f any proposed altera
tions in existing terms and conditions of employment, as applied to
persons within the purview o f the act, and to it resort must be had if
no agreement as to those alterations can be arrived at, subject, how
ever, to the rights o f the court to dismiss any matter if it thinks the
dispute too trivial, or that an amicable settlement can and should be
come to .(a)
The New South Wales act went into effect on December 10, 1901,
and by its terms was to continue in force until June 30, 1908, or six
and one-half years. From reports published by the New South Wales
labor commissioners ( *&) it appears that by March 3, 1902, 50 unions o f
work people and a considerable number o f employers’ unions had
registered or applied for registration under the law, and by the
20th o f that month the total numbered 104 for employers and 75 for
work people. Delegates from these unions, in separate convention,
on March 24 made nominations for members o f the court. In each
convention but three names were presented for the nomination, and in
the balloting there were in the case of the employers 183 votes cast
out o f a total o f 197 delegates, while in the workers’ convention 132
out of 136 delegates voted. The nominee receiving the highest num
ber o f votes was in each case reported as recommended for the court,
and on April 1 was duly appointed. These two members were, re
spectively, a civil engineer and the secretary o f the National Seaman’s
Union, the latter being also a member o f the legislative assembly of
the colony. A judge of the supreme court having been named as
president, the court of arbitration organized at once, proceeded to
the formulation o f its rules of procedure, and since April, 1902, the
a Newcastle and Hunter River Steamship Co. v . Newcastle Wharf Laborers*
Union, reported in New South Wales Labor Bulletin, No. 5 (July, 1902), p. 311.
6 In the Labor Bulletin, published monthly by the commissioners from March
to August, 1902, and thereafter discontinued.

536

BULLETIN OF THE BUREAU OF LABOR.

New South Wales system of compulsory arbitration has been in full
operation, with a continued growth in the court’s business. (a)
SOUTH A U STR A LIA .

The first proposal of arbitration legislation in South Australia was
in 1890, consequent upon the great maritime strike. A bill was intro
duced in the legislature on December 12 of that year, designed, accord
ing to its title, “ To encourage the formation of industrial unions and
associations and to facilitate the settlement of industrial disputes.” (6)
Four years later, after the bill had formed part of the policy of four
different governments and, with some amendments, been twice passed
by the house o f assembly, only to fail o f passage in the legislative
council, this measure became the South Australian Conciliation Act,
1894, assented to December 31 o f that year. The author o f this meas
ure was Mr. C. C. Kingston, ex-attorney-general and afterwards chief
secretary and minister o f labor o f the colony, and it was chiefly to his
efforts that the ultimate passage o f the act was due.
The provisions o f this elaborate South Australian law, containing
10 parts and 86 sections, may be summarized under the following 6
heads:
1,
Registration of trade unions and employers’ associations.—The
act provides for an industrial registrar, appointed by the governor,
with whom any single organization may register as an “ industrial
union,” or several affiliated organizations may register as an “ indus
trial association.” The effect o f registration is threefold: (a) It
gives the union power to enter into legally enforceable agreements;
(&) it makes the rules o f the organization legally enforceable upon its
members, and (c) it renders the union subject to compulsory arbitra
tion, and makes strikes or lockouts by it or its members illegal. The
manner in which this third result is secured will appear later. In
« For an account of the practical operation o f the New South Wales compul
sory arbitration system, it has been deemed best to simply refer the reader to
the very recent and authoritative report by Dr. Victor S. Clark on “ Labor con
ditions in Australia,” in Bulletin o f the United States Bureau o f Labor, No. 56
(January, 1905) (pp. 93-153 especially for New South W ales). This is done
both because Doctor Clark's account is practically complete to date, so far as
evidence available in this country at this writing is concerned, and because his
report is equally accessible with any summary of it which might be presented
here, such summary being, in fact, of somewhat doubtful desirability as com
pared with the detailed account, since, as emphasized by Doctor Clark, expe
rience under compulsory arbitration in Australia has as yet been too short to
warrant any very general conclusions as to resuits.
&A copy o f this bill is printed in the report of the New South Wales Royal
Commission on Strikes, 1891, p. 71.

GOVERNMENT INDUSTRIAL ARBITRATION.

537

regard to the first two it is necessary to note that the South Austra
lian Trade Union Act o f 1876 (a) prevented unions from exercising
any legal rights over members and from making legally enforceable
contracts with employers. To clear away this restriction and enable
unions to undertake responsible negotiations with employers is the
design o f the registration provisions of the Conciliation Act. Unions
or associations registered under the act may sue and be sued, and any
member, whether an individual or a union, making default in com
pliance with their rules, is punishable by a fine not exceeding £5
($24.33) in case o f an individual, or £10 ($48.67) in case of a union,
enforceable by summary proceedings before magistrates or justices
o f the peace.
2. Industrial agreements.—Agreements under the act may be drawn
up between registered organizations, between such organizations and
individuals, or between individuals, in relation to any industrial
matters or for the prevention and settlement o f industrial disputes.
Such agreements must be made for a term not exceeding three years.
They may be altered, renewed, or canceled by the parties bound
thereby, but while they are in force they are binding “ on the parties
thereto and on every person at any time during the term o f such
agreement a member o f any organization party thereto, and on every
person who in manner prescribed above shall signify to the registrar
concurrence therein,” all such being likewise entitled to the benefit
o f agreements. Compulsion is given to agreements by making any
infringement o f them an offense punishable by fines either in sums
specified by the agreement or, where not so fixed, of not more than
£500 ($2,433.25) for an organization and not more than £50 ($243.33)
for an individual.
3. Boards of conciliation.—The act provides for two classes of
boards, private and public. The former are those constituted by
industrial agreement with such jurisdiction over the parties making
the agreement as is specified therein, and within the limits set thereby
exercising the same powers as public boards.
Public boards o f conciliation are o f two kinds, local boards and the
state board. Local boards are to be set up voluntarily by employers
and employees for particular localities and industries. Petition for
such a board must be made to the minister of industry and a license
issued by the governor, such license to be granted, however, only after
proof to the registrar that the board is desired by at least one-half,
respectively, o f the employers and employees of the locality and in
dustry concerned. The members of the board, except the chairman,
are to be elected annually, one-half each by employers and employees,
o The South Australian law on the point here considered follows the English
Trade Union Act of 1871.

538

BULLETIN OF THE BUREAU OF LABOR.

voting separately, and the members are to choose a chairman outside
o f their own number for a term o f two years. To vote for members
registration as a voter is necessary. Such registration, which is
entirely voluntary, is open, upon written application, to all employers
and employees who have been engaged in the industry and locality
fo r the two months preceding the time o f registration.
The state board o f conciliation is composed o f seven members ap
pointed by the governor. Three o f these may be recommended to
the governor by the registered employers’ organizations and three by
the registered employees’ organizations, these six holding office for
two years. But the seventh, who is president o f the board, is to be
appointed independently by the governor for five years. Provision
is made for the temporary appointment for any particular case o f
members other than the regular members, either in addition to or in
place o f the latter.
A local board may take cognizance o f any dispute within the trade
and locality for which it was established, upon the application o f one
party, (a) or any dispute referred to it by an industrial agreement or
any dispute referred to it by what the act terms compulsory con
ciliation.” The state board has jurisdiction over all disputes referred
to it by the industrial agreement or by compulsory conciliation and
o f cases transferred to it from local boards. The transfer of cases
which would otherwise go before a local board may be made by the
president o f the state board at the request o f the local board, when
it appears to the president that the case can be more satisfactorily
disposed o f before the state board. The reference o f cases by com
pulsory conciliation applies only to registered unions or associations.
In case o f any dispute involving such organizations the president o f
the state board may at any time after investigation certify to the
governor o f the colony that the dispute “ is one which should be
settled by compulsory conciliation,” whereupon the governor may by
proclamation refer the case to the state board.
In cases before them all boards are to “ carefully and expedi
tiously ” investigate the dispute, “ make all such suggestions and do
all such things as shall appear to them as right and proper ” to bring
about an amicable agreement o f the parties, and that failing, shall,
u by an award, decide the question according to the merits and sub
stantial justice o f the case.” Cases may be temporarily referred by
a board to a committee o f its members, composed o f equal numbers
o f employers’ and employees’ representatives, for purposes o f con
ciliation. Decisions o f boards are by majority vote o f members, five
constituting a quorum, the chairman or president not voting except
«T h e law itself does not definitely state that application by one party alone
is sufficient, but regulations issued by the governor under date o f January 30,
1S95, do so specify.

GOVERNMENT INDUSTRIAL ARBITRATION,

539

in case o f a tie. Boards are given full power to compel the attend
ance and examination o f witnesses. No counsel or agent shall appear
before a board unless he is personally interested in the dispute in
hand.
4. Enforcement of awards.—A ll awards under the act are com
pulsory. They must specify the organization or persons upon whom
they are to be binding and a period not exceeding two years during
which they shall be enforceable. In cases decided by local boards
or by the state board upon transfer to it from a local board, awards,
unless they otherwise specify, are binding upon all persons enrolled
as voters for the local board at the time the award is made. The
members o f a registered organization named in an award can not
escape from it by withdrawing from registration. It is expressly
provided that any such withdrawal, which may occur in any case
only upon the desire o f two-thirds o f the members and after two
months’ public notice, shall not relieve any union or association or
any o f its members “ from the obligation o f any industrial agreement
or industrial award.”
Duplicates o f awards are to be filed with the registrar, who is to
take the necessary steps for their enforcement whenever called upon
by parties interested, and all courts and officers of the province are
to aid him therein. To enforce an award, process may be issued for
the payment by an organization or person o f not more than £1,000
($4,866.50), or by an individual on account o f membership in an
organization o f not more than £10 ($48.67). Further, any person
willfully defaulting in compliance with an award, unless the award
specifies to the contrary, is guilty o f an offense punishable by fine of
not over £20 ($97.33), or by imprisonment for not more than three
months. A ll these provisions for enforcing awards apply to indus
trial agreements as well, except as expressly limited by the latter.
5. Reports on industrial disputes.—A ll o f the above provisions
have to do with methods o f conciliation and arbitration in the strict
sense. One further process is provided for. In the case o f any
industrial dispute the president of the state board may, after investi
gation, certify to the governor that the case is one which should be
“ investigated and reported upon ” by the state board, whereupon the
governor may by proclamation refer the case to that board for such
purpose. Thereupon the state board is to make investigation and,
in place o f an award, embody its decision on “ the merits and sub
stantial justice o f the case ” in a report to be filed with the registrar,
but which is in no wise compulsory upon the parties. Also, any pub
lic board in any case where an award might be issued may, i f it seems
preferable, make and publish a report in place o f the award.
6. Penalties upon strike or lockout.— In the case o f any dispute
for the settlement o f which any board o f conciliation has jurisdic

540

BULLETIN OF THE BUREAU OF LABOR.

tion the act makes it an offense for any registered organization or
member thereof to “ take part in, support, or assist directly or in
directly ” any lockout or strike. Such an offense is punishable by
a fine o f not more than £500 ($2,433.25) against an organization or
not over £20 ($97.33) against an individual. For this, as for all
offenses against the act, proceedings may be had before any special
magistrate or two justices o f the peace, with appeal to the local
court o f Adelaide o f full jurisdiction.
Put in a word, this South Australian system may be described as
permissive compulsory arbitration. That is, while it provides for
arbitration compulsory both as to award and reference even to the
extent o f compelling reference independent o f the desire o f either
party to a dispute, nevertheless the whole plan can be operated only
as employers and employees choose to put themselves under it either
by entering into agreements so to do, by enrolling as voters for a
local board, or by registering as unions. To those choosing to submit
to it, the act offers compulsory arbitration. For all others the possi
bilities o f the law are limited to the friendly mediation o f a govern
ment official in the person o f the president o f the state board, or a
public investigation o f disputes by that board at the instance o f the
government.
The South Australian law o f 1894 went into force on January 30,
1895, and has never been repealed. It proved a complete failure
from the first, however, for the reason that neither employers nor
work people chose to accept what it offered them. No union ever
registered under it, no local board was ever established, and no formal
agreement under the act was ever made. The state board was
appointed by the governor and organized, but its record is limited
to a single case o f investigation, which was o f no service toward a
settlement o f the dispute. In this instance, which occurred during
March and April, 1895, the parties were under formal agreement
as to wages. This agreement had been reached by arbitration follow
ing a strike in 1890, and bound the employees5 union to support no
strikes and to submit disputes to arbitration. When, however, the
employer in March, 1895, suddenly reduced wages a strike fol
lowed. Thereupon, in the interests of the public and without formal
application from either party an investigation was undertaken by
the state board. When the board* called upon the employer to appear
and testify, the latter promptly refused, challenged, the jurisdiction
o f the board to inquire into the dispute, and demanded that his coun
sel be heard on the latter point. The board declined to consider the
question o f its authority, nor did it deem it advisable to attempt
compulsion in the case, but proceeded to investigate without the
employer’s testimony and made a report with unanimous recom
mendation as to each point at issue, which report was made public*

GOVERNMENT INDUSTRIAL ARBITRATION.

541

This had no effect upon the parties, however, and the strike was con
tinued and new hands were hired by the employer. (°)
The testimony o f those who have investigated the matter on the
ground is to the effect that the unfavorable reception accorded the
law was inspired, in the case o f employers, by a general opposition
to anything like government investigation into, or interference with,
their business affairs, while the working people were afraid o f cur
tailing their liberty o f action, not being certain as to what submission
to the act might ultimately involve. One o f the latter has explained
the support given the measure in Parliament by the representatives
o f the workingmen as due to their personal respect for the author of
the law rather than to any faith in it as a practical measure. ( *&)
W ESTERN AU STRALIA.

This colony first legislated with reference to the settlement of
industrial disputes in 1900, in which year the New Zealand compul
sory arbitration system was adopted by act o f December 5. This
was replaced by a second law, assented to February 19, 1902, which
stood unamended down to the year 1905. Each o f these statutes is
so nearly identical, section for section, with the New Zealand laws in
force at the time o f their passage that no account o f Western Aus
tralian legislation is necessary beyond mention o f the changes intro
duced in copying the New Zealand acts.
Comparing the systems of the two countries as they are at present,
it is found that the differences, aside from matters o f altogether
minor detail, lie chiefly in the omission by Western Australia of the
following New Zealand features :( c) (1) Cognizance by the boards
and court o f disputes in related trades; (2) extension of awards to
the entire colony; (3) extension o f awards to unions not registered
under the arbitration law; (4) extension of awards to apply to the
whole o f a firm’s business where different trades would be involved;
(5) continuance o f awards in force beyond the period stated therein,
and (6) enforcement o f awards at the instance o f the state factory
inspectors. A ll o f these, it may be noted, are features added to the
New Zealand system after its establishment(d) and enlarging its
®The facts as to the one case under the law are set forth in the Adelaide
Advertiser of April 19, 1895. For other information as to the law’s failure
reference may be made to a report published by the French bureau of labor in
1901, entitled “ Legislation Ouvriere et Sociale en Australie et Nouvelle Zelande,”
which contains the results of a special mission by Prof. Albert Metin, pp. 105
et seq.
&Of. Metin, op. cit., p. 110, and article “ Quelque Experiences de Conciliation
par l’Etat en Australie,” in the Revue d’Economie Politique, X I : 539, by M. An
tonie Bertram, who wrote from personal knowledge o f conditions in the colonies.
* Cf. supra, pp. 467,468,470,473-475.
* By the amendments o f 1900 or 1901.

542

BULLETIN OF THE BUREAU OF LABOR.

scope. To the extent indicated by their omission, therefore, the
Western Australian system is less radical. A ll these omissions, save
the first mentioned, it will be seen, have to do with arbitration.
But while the Western Australian statute is narrower than the New
Zealand, as above indicated, in two directions it goes much farther.
In the first place, Western Australia not only puts her railway servants
within the jurisdiction o f the court o f arbitration, (a) which is as far
as New Zealand has gone, but puts all government employees in the
same position, so far as they are members o f unions registered under
the law. In the second place, and this constitutes the most important
departure from the New Zealand model, Western Australia undertakes
to prohibit strikes and lockouts entirely. New Zealand simply pro
hibits such action after a reference to board or court has been made,
but Western Australia has enacted that “ any person who takes part
in or is concerned ” in a strike or lockout, or, before a reasonable
time has elapsed for reference o f a dispute to a board or the court
or during the pendency o f proceedings after a reference, suspends
or discontinues employment or work on account o f that dispute, or
instigates to or aids in any o f the above acts, is guilty of an offense
and, upon summary conviction, on the information or complaint of the
registrar, or o f any registered union, is liable to a penalty not exceed
ing £50 ($243.33).( 6) In support o f this prohibition the Western
Australian law requires that the rules of every registered union shall
provide that no part o f its property or funds shall be applied to aid
or assist any person engaged in a strike or lockout and that all dis
putes in which its members are concerned which can not be settled
by mutual consent shall be referred for settlement under the arbitra
tion law .(c)
The above include all the differences o f any importance between
the present laws o f the two countries. (**) In addition to these, three
features in the Western Australian law of 1900, likewise new to the
New Zealand laws which were copied, may be noted, though all three
were dropped in 1902. One of these required that before any union
o f workers could commence proceedings in the arbitration court it
must deposit with the registrar of the supreme court o f the colony
£25 ($121.66) if its members numbered 50 or less, £50 ($243.33) if its
members numbered from 50 to 100, and £100 ($486.65) for a member
« But not of boards of conciliation.
6 Act o f 1902, sec. 98. This prohibition o f strikes and lockouts apparently
follows the New South Wales act o f 1901.
o Act o f 1902, sec. 4.
* Of other variations suffice it to say that the most notable one consists in a
limitation o f the privilege o f registration and consequent use of the system
in the case of labor unions to organizations with at least 15 members in West
ern Australia as compared with 7 in New Zealand.

GOVERNMENT INDUSTRIAL ARBITRATION.

543

ship above 100, or give security in those sums, and any employers’
union must deposit or find security for £100 ($486.65). By this means
the union’s ability to meet any order o f the court as to cost of the
procedure or enforcement of awards was to be assured. Another pro
vision in the 1900 act prohibited any union which had not satisfied a
judgment o f the court as to costs o f an award or penalty from again
moving the court under any circumstances until such judgment should
be satisfied. The third provision o f the earlier law, above alluded to,
gave the court o f arbitration power to grant injunctions and prohi
bitions and issue writs o f mandamus. While this provision, like the
other two, does not appear in the later law, it should be said that its
omission scarcely indicates any curtailment o f the court’s power for
the purposes o f the act.
The Western Australian act of 1900 became law on December 5 of
that year. According to the Annual Report o f Proceedings under the
Industrial Conciliation and Arbitration Act, by the registrar of
friendly societies for the year ended June 30,1903, the work of organ
izing the boards and court was completed about seven months after
the law went into force. On the 1st o f February, 1901, the colony
was by proclamation divided into four industrial districts and a clerk
o f awards was appointed in each district. On the same date the regu
lations for procedure were published also. («) The four boards o f con
ciliation were organized, respectively, on April 19, June 21, July 5,
and September 19, and the court of arbitration on June 28. Since the
middle o f 1901, therefore, the Western Australian eompulsory arbi
tration system has been actively, and, it may be added, in constantly
increasing measure, in operation. (z>)
COMMONWEALTH OF AU STRALIA.

The latest development o f legislation for the settlement o f indus
trial disputes in Australia is to be found in the Commonwealth
Conciliation and Arbitration Act, which was assented to December 15,
1904. ( c) This law was passed under specific authority for such*6
® The regulations o f February 1, 1901, were amended on March 15 and Novem
ber 8 o f the same year. Regulations under the act o f 1902 were issued May 6
of that year, and these received amendment on October 10, 1902, February 13,
May 1, and September 11, 1903.
6 For information as to the operation of the Western Australian system the
author can not do better than simply refer the reader to the very recent and
full account given by Dr. Victor S. Clark in his report on “ Labor conditions in
Australia,” in Bulletin o f the United States Bureau of Labor, No. 56 (January,
1905), pages 78-153. This is done here for precisely the same reasons given for
a similar reference in the case o f New South Wales.
cActs o f 1904, No. 13.

544

BULLETIN OF THE BUREAU OF LABOR.

legislation given by a clause of the Commonwealth constitution
which conferred upon the Parliament power to pass laws for “ con
ciliation and arbitration for the prevention and settlement o f indus
trial disputes extending beyond the limits o f any one state.” (a)
Doctor Clark ( *&) notes that the act was passed only after two years’
parliamentary debate and after it had caused the fall of two min
istries.
The Commonwealth statute is almost entirely made up of features
taken with more or less modification from one or another o f the
arbitration laws o f New Zealand, New South Wales, Western Aus
tralia, or South Australia, which have been described in preceding
pages. The main features of the Federal system are outlined in the
following summary under four heads.
ADM INISTRATION.

Only one permanent tribunal is set up— a court of conciliation and
arbitration— composed o f a single member, styled the president, who
is appointed directly by the governor-general from among the justices
o f the high court (the supreme court) o f the Commonwealth, with
out any nomination by employers or employees. The president may
appoint any justice of the high court or judge o f the supreme court
o f any state to act as his deputy for such functions as the president
may assign to him in any part o f the Commonwealth. Besides the
court, there is provision for a permanent industrial registrar and, if
necessary, deputy registrars in charge o f registry districts, for the
purpose o f registering organizations under the act as in the state
laws. There may be appointed also temporary local industrial boards
as noted below.
JURISDICTION.

In accordance with the constitutional limitation above quoted, the
jurisdiction is limited to disputes extending beyond the limits o f any
one state, including disputes affecting any industry carried on by or
under the control o f the Commonwealth or any state government.
As to subject-matter the court’s jurisdiction is all-inclusive o f indus
trial disputes o f any kind between employer and employed.
In connection with the question o f preferences to unionists it is spec
ified that the union must be nonpolitical and that preference shall
not be granted unless “ the application for such preference is, in the
opinion o f the court, approved by a majority of those affected by
the award who have interests in common with the applicants.”
« Constitution o f 1900, Part V, sec. 51-xxxv.
&Bulletin o f the United States Bureau o f Labor, No. 56, p. 155.

GOVERNMENT INDUSTRIAL ARBITRATION.

545

As to parties, the court’s jurisdiction extends to disputes between
individual employers, or organizations of employers registered under
the law, and organizations o f employees registered under the law,
or to any dispute “ certified by the registrar as proper in the public
interest to be dealt with by the court.” Under this latter provision
it appears that disputes involving only unorganized workers might
be referred to the court. In order to register under the Common
wealth act it is required that an association o f employers must have
employed for six months prior to application for registration an
average o f not less than 100 employees, and that a workers’ union
must have not less than 100 members, and registered organizations
must be nonpolitical in character.
In this matter o f registration the Commonwealth has adopted one
new feature in a provision whereby the governor-general may, on the
recommendation o f the president o f the court, by proclamation de
clare the act to apply to any trade union or employers’ association,
which shall ^thereupon become a registered organization under the
act, for the purposes o f the act generally or as specified in the
proclamation, until such time as such proclamation may be revoked by
the governor at the president’s recommendation. It is thus possible
for the government upon its own motion to put any unregistered
organization under the jurisdiction o f the law. The right o f refer
ring disputes to the court, so far as the parties are concerned, is speci
fied only for registered organizations, so that unless a single employer
with 100 or more employees should be deemed eligible for registration
as an organization, it appears that individual employers have no
power to make a reference. As to extension o f awards, the “ commonrule ” provision o f New South Wales has been incorporated in the
Commonwealth system, so that the court, after notice and, i f desired,
hearing o f the parties to be affected, and with “ due regard to the
extent to which the industries or the persons affected enter or are
likely to enter into competition with one another ” may declare that
“ any practice, regulation, rule, custom, term o f agreement, condition
o f employment, or dealing whatsoever determined by an award in
relation to any industrial matter ” (sec. 38) shall be a common rule
o f the industry, subject to such conditions or exceptions as the court
may see fit to impose out o f regard for local circumstances.
Finally, with reference to jurisdiction, one o f the purposes o f the
act is declared to be “ to enable states to refer industrial disputes to
the court and to permit o f the working o f the court and o f state indus
trial authorities in aid o f each other.” Under the definitions con
tained in the act the state industrial authorities mentioned mean
industrial conciliation or arbitration boards, or wage boards like
those in Victoria. In accordance with the above provision, it is not
50—No. 60—05 M-----11

546

BULLETIN OF THE BUREAU OF LABOR.

only possible for any such state industrial authority, or the governor
in council in any state having no such agency, to refer any dispute
cognizable by the Commonwealth court to that court, but the said
court, if it considers that any state industrial authority is dealing
or about to deal with an industrial dispute cognizable by itself, may
direct the transfer o f the case to the Commonwealth court, and the
case shall be so transferred to the exclusive jurisdiction o f that court.
It is also provided that i f any state law or an award or order o f a
state industrial authority is inconsistent with an order or award o f
the Commonwealth court, then the latter shall supersede the former
to the extent o f the inconsistency. The jurisdiction o f the Common
wealth court is thus made exclusive on matters o f which it may take
cognizance.
PROCEDURE.

As already indicated, disputes come before the court either on
reference by registered organizations o f employers or workers, party
thereto, on reference by the registrar, or by transfer from a state
board or court. The courts functions embrace both conciliation
and arbitration. Thus section 16 o f the act charges the president o f
the court with the duty “ o f endeavoring at all times, by all lawful
ways and means, to reconcile the parties to industrial disputes, and
to prevent and settle industrial disputes, whether or not the court
has cognizance o f them, in all cases in which it appears to him that
his mediation is desirable in the public interest.” Section 23 further
directs that in the course o f hearings on cases which have been re
ferred to it, “ the court shall make all such suggestions and do all
such things as appear to it to be right and proper for reconciling the
parties and for inducing the settlement o f the dispute by amicable
agreement.” It is also provided that the court may temporarily
refer any dispute before it to a conciliation committee composed o f
equal numbers o f representatives o f the two parties who shall en
deavor to reconcile the two sides. I f the court’s conciliation efforts
result in an agreement the latter shall be put in writing and when
certified by the president and filed with the registrar, unless other
wise ordered by the court, “ shall, as between the parties to the dis
pute, have the same effect as, and be deemed to be, an award.” Simi
lar enforceable agreements may also be made by parties in cases
aside from those referred to the court.
I f no settlement by conciliation be effected, the court shall pro
ceed to render an award, from which there is no appeal.
The
court may, either with or without application from parties, appoint
two assessors, one nominated by each side, or without such nomina
tion, i f necessary, to assist by advice. The court may refer any dis
pute for investigation and report to any state industrial authority

GOVERNMENT INDUSTRIAL ARBITRATION.

547

willing to act or to a special local board, composed o f equal numbers
o f representatives of employers and employed, with a justice o f the
high court o f the Commonwealth or o f a state supreme court as
chairman. The court may delegate to such a board any of its powers,
including authority to effect a settlement by conciliation,* and upon
the board’s report the court may render its decision with or without
hearing further evidence or argument. The Commonwealth court,
like the state courts, is fully endowed with authority to compel the
presence and testimony o f witnesses, the production of documents,
and for securing evidence by inspection of premises.
ENFORCEM ENT OF AW ARDS.

Strikes and lockouts are absolutely prohibited by the Common
wealth law under penalty o f £1,000 ($4,866.50). Ceasing to work
or dismissal o f an employee by an individual worker or employer
because o f an award is punishable by fine o f £20 ($97.33). The
court is given power to fix penalties for breaches o f its orders or
awards up to £1,000 ($4,866.50) in the case o f an organization or
individual employer, or £10 ($48.67) for a member o f an organiza
tion. A penalty o f £20 ($97.33) is prescribed for willful breach o f
an order or award by any person. A t any time during the hearing
o f a case referred by an organization the court may require the latter
to furnish security not exceeding £200 ($973.30) for the performance
o f the award. The court has authority, on the application o f any
party to an award, to issue an injunction to compel observance of the
award under pain o f a fine o f £100 ($486.6,5) or imprisonment for
three months. For all offenses under the law for which a pecuniary
penalty is specified there is a general provision under which a second
offense is punishable by imprisonment not exceeding three months
in addition to the pecuniary penalty.
Penalties for the breach o f an order or award of the arbitration
court may be imposed either by that court or by any court o f sum
mary jurisdiction, and such penalties may be sued for and recovered
by either the registrar, any registered organization affected by the
breach, or by any member o f such an organization. The penalties
are recoverable in any Federal or state court o f competent jurisdic
tion by filing the registrar’s certificate specifying the penalty, which
thereupon becomes enforceable as any final judgment of such a court.
The property o f an organization, or, i f necessary, that o f members
to the extent o f £10 ($48.67) each, is liable for the payment of
penalties.
Finally, in addition to the above penalties, the Commonwealth law
provides that any person guilty o f any o f the offenses specified as
to strike or lockout, severance o f the relation o f employer or em

548

BULLETIN OF THE BUREAU OF LABOB.

ployed, or willful default in compliance with an order or award o f
the court, is liable also, at the discretion o f the court and for such
time as the court thinks fit, to the loss o f (a) any benefits or privi
leges accruing under the Conciliation or Arbitration Act, (&) member
ship in any registered organization, or ( c) rights to any payment
out o f the funds o f any registered organization; and any or all o f
these disabilities may be incurred at once, and a penalty o f £20
($97.33) is specified for the infringement o f any such disability.
This Commonwealth compulsory arbitration law is too recent to
afford as yet any evidence as to results in practice.
CAN AD A.
Four o f the Canadian Provinces— Ontario, Nova Scotia, British
Columbia, and Quebec— together with the Dominion government,
have legislated with a view to the peaceable settlement o f industrial
disputes.
THE DOMINION GOVERNMENT.

In 1886 the Dominion government of Canada appointed a royal
commission on labor, and one subject upon which this commission
was directed to report was the “ practical operations o f courts o f
arbitration and conciliation in the settlement o f disputes between
employers and employees, and on the best mode o f settling such
disputes.” (a)
The result o f the commission’s investigations in this field was a
recommendation in favor o f local boards, combined with one central
board. It was proposed that the local boards should be appointed
by the government in all the larger trade centers, to be composed o f
three members— one employer, one workingman, and a third chosen
by these two. On the central board there should also be three mem
bers, one o f whom should be a member of a labor organization. Both
local and central boards should have powrer to summon and examine
witnesses on oath and to compel the production of books and papers.
In case o f dispute the central board should send immediately one o f
their number to the locality to endeavor to settle the case by media
tion. Should he fail in this, he should urge the parties to submit the
case to either the local or the central board. I f one party refused
to submit the c^se to either board, the arbitrator, who should have
power to summon and examine witnesses under oath, should make
report to the central board setting forth the facts and stating which
party was responsible or blameworthy for the dispute. It was also
recommended that parties should be free to refer cases to temporary
boards o f their own choosing. In case either party should be dis-

0 Report o f the commission, 1889, p. 3.

GOVERNMENT INDUSTRIAL ARBITRATION.

549

satisfied with the decision o f such a board or one of the local boards,
there should be an appeal to the central board. Decisions o f the cen
tral board, either on cases in the first instance or on appeal, should be
“ final and conclusive and to have the same effect as a decision given
by any court o f record.”
The recommendations of the commission o f 1886, though elaborated
with considerable detail, bore no fruit in legislation, and apparently
no bill based on those recommendations was ever introduced in Par
liament. (a) In 1892 and 1893 numerous petitions from trade unions
to the House o f Commons prayed for legislation upon the subject, but
these also were fruitless, and no such legislation occurred until the
Conciliation Act o f July 18, 1900, the bill for which was introduced
on June 27, passed July 6, and received the royal assent July 18. ( 6)
TH E CON CILIATIO N ACT OF

1900.

This law created a department o f labor for the collection and pub
lication o f labor statistics, but assigns to it also the same functions
with reference to conciliation and arbitration as are conferred upon
the board of trade in England by the English law o f 1896. (c) A ll
the provisions o f the English statute are copied without change,
save in some o f the wording, and three new sections are added. Two
o f the latter are o f little importance, one simply declaring that
conciliators, in endeavoring to effect amicable settlements, may invite
others to assist them, and the other setting forth the general duty of
conciliators to be 44to promote conditions favorable to a settlement
by endeavoring to allay distrust, to remove causes o f friction, to pro
mote good feeling, to restore confidence, and to encourage the parties
to come together and themselves effect a settlement, and also to pro
mote agreements between employers and employees with a view to the
submission o f differences to conciliation or arbitration before resort
ing to strikes or lockouts.” (*) The third new section provides that
in any proceeding for conciliation under the act, the conciliator
(either individual or a board), before a settlement has been reached,
may request o f the minister o f labor, who is the head o f the labor
department, an inquiry under oath into the causes and circumstances
o f the dispute with a view to removing misunderstanding or disagree
ment concerning facts. I f both parties consent thereto, the governor
in council may, upon recommendation o f the minister, appoint the
« No such bill is mentioned in either the Journal of the House o f Commons or
the Senate debates o f the period.
ft 63-64 Viet., chap. 24. The law in full is reprinted in the Seventeenth An
nual Report o f the New York State Board of Mediation and Arbitration, 1903,
p. 357.
o Cf. supra, pp. 402-405.
<*Sec. 5.

55©

BULLETIN OF THE BUREAU OF LABOR*

conciliator for the purposes o f such inquiry a commissioner under
the general law respecting inquiries concerning public matters. (*)
which would give the conciliator the same powers to compel witnesses
to attend and testify and produce documents as are exercised by civil
courts o f record.
The annual reports o f the Canadian department o f labor set forth
each year the work accomplished under the Conciliation A ct o f 1900.
The law permits the department to intervene in disputes, either upon
its own initiative or upon request from the parties to disputes, but
from the first it has followed the principle o f intervening only upon
application.
Thus the first report states that—
The department has proceeded on the assumption that an oppor
tunity being afforded for either party to a dispute to make applica
tion for its friendly intervention to aid in effecting a settlement, it
would be inexpedient for the department itself to take the initia
tive^*6)
And the latest report(c) reiterates:
The attitude o f the department o f labor toward industrial dis
putes has been from the outset to intervene only when requested by
one o f the parties or some responsible person or persons on their
behalf, or on behalf o f the community, and in all cases only where it
appears that the parties immediately concerned, or one o f them, are
desirous o f the department’s intervention.
A summary o f intervention, and general results by years shows
the following totals:
RESULTS OF INTERVENTIONS BY THE DEPARTMENT OF LABOR IN STRIKES
AND LOCKOUTS, CANADA, 1901 TO 1904.

Year ended June 30—

Requests
for in
terven
tion.

Com
plete set
tlements
by dedepart
ment’s
inter
vention.

Settle No set
Total
ments
strikes
aided by tlement
effected
and
lock
depart by de o u ts^
)
ment’s
part
m Do
inter
ment.
minion.
vention.

1901 ............................................................................
1902........................... - ........ ..........................................
L903.................................................................................
1904 ............ ...............................................................

5
11
13
4

5
6
4
2

1
6

4
3
2

104
128
160
108

Total....................................................................

496

® That is, the number reported to the department during the calendar .year.

Requests for intervention have come to the department chiefly from
the work people, the reports showing definitely that 27 o f the 33 re
quests were made by them, and presumably three others (in 1901-2),
« Cf. Revised Statutes of Canada, 1886, chap. 114.
&Report of the Canadian Department of Labor for the year ending June 30,
1901, p. 31.
o Id., year ending June 30, 1904, p. 46.

GOVERNMENT INDUSTRIAL ARBITRATION.

551

whose source is not definitely stated, were from them also. In one in
stance (in 1901-2) application came from employers, and in two cases
(in 1902-3) third parties—members o f Parliament in each instance—
requested the department to intervene.
In all but three cases (one in 1901-2 and .two in 1902-3) the appli
cation for intervention was made after strike or lockout had occurred.
The department’s intervention in the three cases before suspension
resulted twice in complete settlement and in the third instance (one
o f those in 1902-3) aided to a settlement, and so, according to the
reports, averted or helped to avert threatened strikes.
O f the nine strikes or lockouts in which neither complete nor par
tial settlement was effected by the department, in one (1902-3) a
settlement was effected by the mayor of the town and a member of
Parliament (the latter o f whom had requested the intervention),
while the deputy minister o f labor was on his way to the scene o f the
dispute, and in another (1903-4) request for intervention from a
trade union was withdrawn before the deputy minister could reach
the scene, and in accordance with the department’s policy o f non
intervention without desire o f at least one side no intervention oc
curred. In the other seven cases negotiations under the law failed to
effect any settlement in whole or in part. In all o f these the reports
state that the employers claimed either to have filled the places o f the
strikers or to be no longer embarrassed by their absence, so that nego
tiations with a view to conciliation were either impossible or useless.
A ll o f the work thus far done under the Canadian Conciliation Act
o f 1900 has been in the nature o f conciliation pure and simple, no
request for the appointment o f an arbitrator under the law ever
having been received and no formal commission of inquiry as pro
vided for in the act ever having been asked for or issued. In the
cases o f intervention above noted the work o f conciliation was done
in a few instances by the minister of labor, who is the head o f the
department o f labor, but in all the others, constituting the great
majority o f the cases, by the deputy minister as conciliator under the
act, so that no conciliator from outside the department was appointed.
The methods followed by the minister or his deputy in their inter
ventions have been in most instances the usual ones in such work, con
sisting o f efforts either to bring the parties together in conference or
to formulate terms acceptable to both. Three cases appear in the
reports o f the four years’ work here reviewed in which, after such
procedure was found to offer no prospect o f settlement, the deputy
minister o f labor made a careful investigation into the causes and
status o f the dispute, the results being in each case published in the
department’s monthly Labor Gazette. One o f these special inquiries
(in 1901-2) does not appear to have contributed to the termination

552

BULLETIN OF THE BUREAU OF LABOR.

o f the strike, which did not end until a month later; but the report of
the department’s intervention in this case asserts that “ there can be
no doubt that an important service was rendered to the mining inter
ests o f British Columbia (where the dispute was) and to the working
men o f that Province by the investigation.” ^ ) The other two such
investigations (in 1902-3) were o f service toward settling the dis
putes. In one, made in connection with a railway dispute over non
payment o f wages, the investigation was made the basis for further
correspondence o f the department with the railway company, and
this correspondence wTas finally laid before Parliament by order o f the
latter, and the department’s report(6) o f this case asserts:
There is no doubt that the publicity given to the facts in this way,
as well as in the statement published m the numbers o f the Labor
Gazette, * * * together with the investigation made by the
department under the Conciliation Act, had a great deal to do with
hastening the settlement of the claims in question and bringing
about a resumption of operations by the road.
In the other case the report states that the facts ascertained by the
investigation “ were set forth at length in an official report to the
honorable the minister o f labor, which report, being published in
the Labor Gazette and circulated in the local press, became one of
the features which subsequently assisted in effecting a termination
o f the dispute.” ( c) Interesting in this connection is a point noted in
the report o f the first year’s work under the law to the effect that
the element o f publicity was found to be a valuable adjunct in all
of the conciliator’s work. The report says:
It is to be noted that the power of the conciliator, though the
acceptance o f his services be voluntary, is not as dependent" upon the
willingness o f each o f the parties to avail itself o f his good offices as
may at first sight appear. The strength o f his position, as the experi
ence o f the past year has shown, lies in the provision made by another
clause o f the act, that the conciliator must present to the minister of
labor a report o f his proceedings, which report, as contemplated
though not expressed in the act, is published in the Labor Gazette, the
official journal o f the department. The knowledge by each o f the
parties to a dispute that its case, in so far as the position can be
learned by the conciliator, must appear in an official record o f the
government, which serves as a focus o f public opinion, has a tendency
to cause each party to submit a fair statement or its case at the outset,
and to refrain from any delay in granting reasonable concessions or
from holding out for excessive demands, once this statement has been
made and an effort toward a settlement is under way. (fI)
®Report of the Canadian Department o f Labor, 1902, p. 39.
&Id., 1903, p. 41.
c Id., 1903, p. 48.
* Id., 1901, p. 32.

GOVERNMENT INDUSTRIAL ARBITRATION.
TH E R A IL W A Y LABOR DISPUTES AC T,

553

1903.

A more original and significant contribution to legislation for the
settlement o f industrial disputes than the Conciliation Act o f 1900
has been made by Canada in a law of 1903, known as the Eailway
Labor Disputes Act. An account o f the framing and passage o f this
act, given by the department of labor in its report for 1903, (tf)
shows that that department was primarily responsible for the meas
ure. A protracted strike on the Canadian Pacific Eailway in the
summer o f 1902 having called attention to the need o f legislation to
prevent such interruption o f the means o f transportation and com
munication, and compulsory arbitration having for some time been
advocated by a considerable number o f organizations, both o f capital
and o f labor, the minister o f labor introduced in the next session o f
Parliament (1902) a compulsory-arbitration bill ( &) for railway dis
putes. The minister, however, stated expressly that he did not in
tend to press the bill, and that its introduction was mainly for the
purpose o f calling forth an expression o f opinion from interested
parties and the public generally, which might serve as a guide to
further legislation. In fulfillment of this purpose, therefore, the de
partment o f labor proceeded to give the largest possible publicity to
the bill by extensive distribution of copies and to secure as many ex
pressions o f opinion concerning it as possible, especially from the
railway companies and the various brotherhoods o f railway employ
ees. Eesponses from the railway companies were few, but numerous
expressions o f opinion were received from the labor organizations, and
most o f the latter were strongly opposed to the bill. By special atten
tion to press opinions the department endeavored to ascertain the atti
tude o f the general public toward the measure, finding in this direction
a less general opposition to compulsory arbitration than among the
trade unions, but finding at the same time considerable doubt expressed
as to the advisability o f adopting the principle on account o f the
serious practical difficulties involved, especially in the matter of
enforcing awards and securing just decisions on questions which must
ultimately be determined by economic forces.
But while this investigation o f public opinion and the sentiment of
interested parties tended to discourage the idea of compulsory arbi
tration, experience under the Conciliation Act o f 1900 had shown the
department that in some disputes the power to compel testimony and
the production o f documents was necessary to a correct under
standing o f the situation and therefore a necessary preliminary to
any settlement, and that such power in order to be effective must be
a Pages 58-60.
^ Published in full as an appendix to the June (1902) Labor Gazette.

554

BULLETIN OF THE BUREAU OF LABOR*

available independently of the will of the parties. Consideration o f
public sentiment and experience together, therefore, led the minister
o f labor to introduce at the next session of Parliament a new measure
44carrying as far as was possible the principle o f voluntary concilia
tion, but substituting for compulsory arbitration, with its coercive
penalties, the principle o f compulsory investigation, and its recogni
tion o f the influence o f an informed public opinion upon matters o f
vital concern to the public itself.” (®) The bill was introduced
March 17, passed May 6, and received the royal assent July 10,
1903. ( &)
The Railway Labor Disputes Act, 1903, applies only to railways; but
to all such, whether operated by steam, electricity, or other motive
power, and whether private or government roads, the law is appli
cable in any 44dispute, disagreement, or dissension ” between any rail
way and any o f its employees 46which, in the opinion of the minister
[o f labor], may have caused or may cause a lockout or strike, * * *
or which has interfered or may interfere with the proper and efficient
transportation o f mails, passengers, or freight, or the safety o f per
sons employed upon any car or train.”
The agency through which the machinery provided for in the law
is to be set in motion is the minister of labor, and whenever, in his
opinion, such a dispute as above described exists he may start pro
ceedings under the act either upon application o f any party to the
difference or upon application from the corporation o f any munici
pality directly affected by the dispute, or o f his own motion. The
first step in the procedure is the establishment, under the hand and
seal o f the minister, o f a 44committee o f conciliation, mediation, and
investigation,” composed o f three persons, one each named by the
railway employers and the employees who are parties to the dispute
and the third by the other two or by the parties, i f they can agree
upon, some one. I f either party fails to appoint its member within
the time set by the minister o f labor, which may not be over five days,
then the minister, or, in case of the two government railways, the
lieutenant-governor in council o f one o f the Provinces, may appoint
such member, and the same provision applies in case o f failure o f the
parties’ members to name a third.
It is the duty o f the conciliation committee 44to endeavor by con
ciliation and mediation to assist in bringing about an amicable set
tlement of the difference to the satisfaction o f both parties, and to
report its proceedings to the minister.” I f they fail in this effort,
« Report o f the Canadian Department o f Labor, 1903, p. 59.
*3 Edward VII, chap. 55. The act is printed in full in the Seventeenth
Annual Report of the New York State Board of Mediation and Arbitration,
1903, p. 359.

GOVERNMENT INDUSTRIAL ARBITRATION.

555

the minister may then refer the case to arbitration under the
act before a “ board o f arbitrators,” to be established, like the con
ciliation committee, under the hand and seal o f the minister. I f
both parties agree thereto the conciliation committee may act as the
board o f arbitrators, but if either party objects to its representative,
or the third member on the committee acting on the board, then
these shall be replaced by new members, named in precisely the same
manner as the original members o f the committee. The constitution
o f the board o f arbitrators is, therefore,' exactly the same as that of
the conciliation committee, but the members may be the same or
different persons. The law specifies that the third member shall be
chairman o f the board. It is the duty o f the board of arbitrators
to “ promptly convene * * * and * * * in such manner
as it thinks advisable make thorough, careful, and expeditious
inquiry into all the facts and circumstances connected with the d if
ference and the cause thereof, and shall consider what would be
reasonable and proper to be done by both or either o f the parties
with a view to putting an end to the difference, and to prevent
ing its recurrence,” and shall with all reasonable speed make a re
port o f its procedure, findings of fact, and recommendations to the
minister o f labor. The decision o f a majority o f the members shall
be the decision o f the board. The minister o f 'labor is forthwith
upon its receipt to cause the report o f the board to be filed in the
department o f labor and a copy to be sent free o f charge to each
party to the dispute, to any municipal corporation which may have
applied for action under the law, and to any newspaper in Canada
which may apply for a copy, and copies shall be furnished at cost to
any others who desire, them. The report shall also be published
without delay in the Labor Gazette, and shall be included in the
annual report o f the department o f labor. The findings o f the board
o f arbitrators carry only such force as public opinion may give them,
and it is expressly stipulated in the law that n6 court may “ recognize,
enforce, or receive in evidence ” any report o f the board o f arbitrators
or committee o f conciliation against any person for any purpose,
except in case o f prosecution for perjury.
For the purposes o f its inquiry a board o f arbitrators under the law
has the same power to summon witnesses and require them to give
evidence on oath or produce documents as any Canadian court of
record in civil cases. The board may conduct its proceedings in
public or in private, as it chooses; it may decline to allow counsel
for parties to appear before it, though otherwise such counsel may
appear if both parties agree thereto, and in all cases a class o f em
ployees may be represented before board or committee by a limited
number, chosen by a majority, or by agents other than counsel, and

556

BULLETIN OF THE BUREAU OF LABOR.

the board may place any person guilty o f any unlawful contempt in
the face o f the board in custody until the board rises.
The department o f labor is to pay the expenses o f proceedings
under the act, including, for either committee o f conciliation or
board o f arbitrators, traveling expenses o f members, compensation o f
$10 per day for members other than chairman, and for the latter
such compensation as the governor in council deems reasonable, and
the expense o f a stenographer, secretary, and any other clerical as
sistance which may seem to'the minister of labor to be necessary.
The first case o f practical application of the Railway Labor Dis
putes Act occurred in 1904 in connection with a dispute between the
Grand Trunk Railway Company and the telegraphers in its em
p lo y .^ ) In 1903 the telegraphers had sought and finally, in the
autumn, secured conferences with the railway management with a
view to securing better terms of employment, but these conferences
ended on November 10 without any agreement being reached. On
A pril 25, 1904, the telegraphers appealed to the minister o f labor to
refer the dispute for settlement under the Railway Labor Disputes
Act. Before making such reference, however, the minister arranged for
another conference between the parties in the hope that they might
yet come to agreement by themselves. This conference, which began
June 1 and extended over six days, resulted in an agreement on 19
ppints in the schedule, but on three points—overtime pay for Sun
day work, allowance of an annual vacation with pay, and increase in
minimum salaries—the company would make no concessions, and the
conference ended in disagreement. An appeal to the general manager
o f the road having failed to alter the situation, the telegraphers
again applied for reference under the law, asserting that a strike
would occur unless such a reference were made. On July 21, there
fore, the minister of labor served notice on the parties to name mem
bers for a conciliation committee under the act. Within five days
the parties appointed their representatives for the conciliation com
mittee, and a fortnight later these two chose a civil court judge as
third member and chairman. On August 22 and 23 the committee
endeavored in private conferences to arrange an amicable settlement,
but on the 24th reported to the minister o f labor that they were
unable to cofne to an agreement. Thereupon the minister decided to
refer the dispute to arbitration under the act, and the parties having
expressed approval o f their representatives on the conciliation com
mittee and its chairman to act as arbitrators, the minister on August
27 established the board, composed o f the same persons as the com
mittee.
o Details of this first case under the act are given in the Canadian Labor
Gazette, numbers from August, 1904, to March, 1905.

GOVERNMENT INDUSTRIAL ARBITRATION.

557

Owing to engagements of the chairman, the first meeting o f the
board did not occur until September 19. On that day*and on the 23d
and 24th sessions were held, at which it was decided by the chairman
that, as the telegraphers’ representatives had objected thereto, no
counsel should appear for the parties before the board, and that the
hearings should be public. After the presentation o f a statement o f
the claims o f the telegraphers, in the form o f 25 proposed rules, an
adjournment was taken to October 13. A t a meeting on October 14
it was decided by a majority o f the board to reverse the earlier ruling
as to public hearings and to hold them in private, for the reason that
it appeared that much o f the inquiry would involve the use o f books,
papers, and documents, and that the section of the law giving the
board power to require the production o f such evidence at the same
time prohibited making any o f it public, and the protection o f such
information from publicity could best be insured by making all hear
ings private. A t the same meeting it was also decided that only the
three points above noted (overtime pay for Sunday work, vacation
with pay, and increase in minimum salaries), on which the parties
had been unable to agree, should be considered, with a reservation by
the telegraphers o f the right to present later an argument on their
claims as a whole. The taking o f evidence began on October 15, was
continued in sessions on two other days in October, on three days in
November, and in daily sessions, both morning and afternoon, from
December 28 to January 6, except that no sessions were held on Janu
ary 1 and 2 and only one was held on January 3. On December 28
the chairman o f the board notified the parties that the current and
following weeks had been set aside by the arbitrators for daily sit
tings to complete the case; that 46the parties must be ready,” and
that 44no excuse for postponement on either side will prevail unless
occasioned by unavoidable accident.” Witnesses were heard first on
behalf o f the telegraphers (14 in all), then on behalf of the company
(11 in a ll), then on behalf o f the employees in rebuttal. On January
7, each side having presented its final argument, the case was closed,
and six weeks later (February 20,1905), or ten months after the first
application for reference under the act, the board made public its
award.
The award was signed by only two members of the board, the
chairman and the telegraphers’ representative. It covered only the
three points on which the parties had failed to agree before the refer
ence and decided entirely in favor o f the telegraphers on two points
and wholly against them on the third. In other words, it recom
mended in favor o f extra pay for Sunday work and increase in mini
mum salaries exactly as the telegraphers had demanded, but against
any leave o f absence with pay. With the award was filed a minority

558

BULLETIN OF THE BUREAU OF LABOR.

report by the company’s representative, who dissented from the
majority decision on the two points in which the latter favored the
contention o f the telegraphers, declaring that the evidence presented
to the board failed to justify any increase of salaries, and that, while
for certain cases the evidence showed the. claim for extra pay for Sun
day work to be justified, in other cases it was not well founded, and
therefore the majority decision on this point went too far in award
ing such extra compensation for all cases.
Whether the award o f the board o f arbitrators was adopted by the
railway company is not stated in any of the official reports of this case
up to April, 1905, but apparently it was. Inasmuch as work con
tinued as usual during the proceedings under the law and has
continued since, and since the telegraphers themselves asserted at the
outset that a strike was imminent unless the law should be invoked,
it seems certain that this first practical application o f the Railway
Labor Disputes Act o f 1903 served to avert what would otherwise in
all probability have been a very serious strike both for the parties
and for the general public. Down to the middle o f 1905 no other
case under this law had arisen.
ONTARIO.
TH E TRADES ARBITRATION A C T,

1873.

B y law o f March 29, 1873, the Province o f Ontario adopted the
English Councils of Conciliation Act, 1867,(a) copying the law of*
the mother country for the most part verbatim and with no changes
o f any significance. Like the English act, however, the Ontario
Trades Arbitration Act, 1873, as it was officially styled, was a total
failure. The royal commission on labor, appointed in 1886 by the
Dominion government, reported that the law “ had never been used,
and that even its very existence seems to have been forgotten.” ( 6)
In the opinion o f the commission the cause o f its failure was the
clause declaring that the act in no way authorized a board “ to estab
lish a rate o f wages or price o f labor or workmanship at which the
workmen shall be paid.” “ Inasmuch,” says the commission, “ as
ninety-five one-hundredths o f the disputes which arise between the
employer and employee relate to the rate o f remuneration, it is diffi
cult to see what object it was hoped to achieve by an arbitration act
containing such a section.”
To remedy the defect pointed out by the commission the act was
amended in 1890 so as to permit employers and workmen, who had
drawn up the agreement to form a board under the act, to authorize
the board “ to establish a rate o f wages or price o f labor or workman
«C f. supra, pp. 391-395.

&Report of the commission, 1889, p. 95.

GOVERNMENT INDUSTRIAL ARBITRATION.

559

ship at which the workmen shall in future be paid.” The amend
ment also provided penalties for failure to abide by such agreements.
This change was, however, of no avail and the act remained a dead
letter.
TH E TRADE DISPUTES ACT, 1894.
In 1894 another law was passed by Ontario, known as the Trade
Disputes Act, 1894. Like the earlier law, however, this act was not
original with Ontario, and this time the Province turned to the New
South Wales law o f 1892 for a model. The Ontario act is so nearly
identical with the New South Wales law already described (for the
most part verbatim), that reference to the latter, with an indication
o f the few differences o f moment between the two, will be sufficient
for an understanding o f the Ontario law.
In the matter o f the machinery for conciliation and arbitration the
only important alteration made in the New South Wales system con
sisted in the omission o f industrial districts and a permanent council
o f conciliation from which parties might choose a board for any par
ticular case, thus leaving it to the parties to name any persons they
choose for a board. Inasmuch as the New South Wales law per
mitted the omission of industrial districts (as was actually done in
practice) and also gave the parties in any case the alternative of
selecting a council outside the standing general council, it will be seen
that the difference between the statutes on this point lies in the adop
tion by Ontario o f but one o f two courses offered in New South Wales
rather than in any new features.
In the matter o f procedure, however, one entirely new and im
portant provision appears in the Ontario law in that where one party
to a difference has applied for conciliation and named its conciliators
and the other party has not after a reasonable time named them, then,
provided the party applying has not resorted to strike or lockout,
the council o f arbitration may proceed to a hearing and render a
decision as to the proper mode o f settlement, and, i f they think fit,
add a statement as to the origin and causes o f the dispute, with an
opinion as to what parties are mainly responsible for it. A minor
point in procedure which is new in the Ontario law is a requirement
that in conciliation the parties shall before the hearing make a written
statement o f the case jointly, i f possible, otherwise separately. But
one other point o f difference between the two laws need be mentioned,
namely, that Ontario provides for two councils of arbitration— one
to deal with all cases except those in railroad construction or service,
the other for disputes in the latter industry.
A short amendment to the Ontario act was made in 1897 in no
wise modifying the original act, but making additions thereto, as fol
lows: (1) The lieutenant-governor of the Province may appoint

560

BULLETIN OF THE BUBEAU OF LABOR.

members o f the council of arbitration directly whenever either em
ployers or employees fail to make recommendations therefor; (2)
whenever the mayor o f a city or town is notified that a strike or lock
out is threatened or has occurred in the municipality he shall at
once notify the registrar (a) thereof, giving, if possible, the name of
the employer, nature o f the dispute, and number of employees in
volved; (3) whenever the council o f arbitration is informed in any
way, whether by a mayor or otherwise, of a threatened -or actual
strike or lockout, the amendment makes it the council’s duty to place
itself in communication with the parties and endeavor by mediation
to effect an amicable settlement, and i f it seems in the council’s judg
ment best it shall inquire into the causes o f the dispute, proceeding
as in case o f an ordinary reference; (4) finally, any two members o f
the council o f arbitration are to be a quorum, and the council may
order that an examination or investigation shall be made before a
single member, though any decision of his shall not hold until ap
proved by the council.
This amendment opens the way for a system quite different from
that contemplated by the principal act. Under the latter, concilia
tion was to be had only before councils named by parties in dispute
and the permanent arbitration council could be established only as
members were nominated by employers and employees, and was for
arbitration alone. Under the amendment the government can ap
point a permanent council independently, which can act for both
arbitration and conciliation, and for the latter purpose is not only
permitted to act without any application from parties, but it is made
its duty to intervene upon knowledge o f a dispute. The Ontario
arbitration council becomes thus much the same sort o f an agency
as the State boards o f arbitration in the United States. ( 6)
In practical results the Ontario act o f 1894 barely escapes the
category o f total failure. Down to 1902 action under it had oc
curred but three times and all o f these were prior to March, 1900.
The first case occurred in 1896 and constitutes the only instance in
which either o f the arbitration councils, which were duly appointed,
was ever formally applied to by parties in dispute. In that year,
during a strike in the tailoring trade o f Toronto, the tailors’ union
called upon the council for action. But the employers, deeming
this a sign o f weakness on the part o f the strikers, refused to join
in the reference or appear before the council. So that, although
the council investigated and reported, successful arbitration was out
o f the question. It will be observed that this one experience revealed
the same difficulty with the system as was found in New South
« The registrar in Ontario corresponds to the clerk o f awards in New South
Wales.
&Cf. infra, pp. 591-606.

GOVERNMENT INDUSTRIAL ARBITRATION,

561

Wales, namely, that opposition on the part o f either o f the parties
in dispute blocked all procedure. Just this, apparently, inspired the
amendment o f 1897 and the other two cases o f action above referred
to were precisely o f the kind contemplated by that amendment. In
each o f these, upon the registrar’s receiving informal notice o f antici
pated trouble, a member o f the council promptly and successfully
intervened in the capacity o f mediator and thereby prevented a
strike. (®)
Further amendment of the Ontario law was made by an act bear
ing date o f March 21, 1902. This added two sections to the act o f
1894, the important one reading as follow s:
I f any difference shall arise between any corporation or person,
employing ten or more employees, and such employees, threatening
to result, or resulting in a strike or lockout, * * * it shall be the
duty o f the registrar, when requested in writing to do so by five or
more o f said employees, or by the employers, or by the mayor or reeve
o f the municipality in which the industry is situated, to visit the
place o f such disturbance and diligently seek to mediate between such
employer and employees. ( 6)
This, like the amendment o f 1897, has to do with conciliation as
distinguished from arbitration. The earlier amendment opened the
way for such procedure by the arbitration councils. Here the regis
trar alone, as well as the arbitration councils, is enabled to intervene
for conciliation purposes. The second section o f the amendment,
which simply directs the registrar in a general way to endeavor to
allay distrust, promote good feeling, etc., when he intervenes in dis
putes, is copied verbatim from section 5 of the Dominion Conciliation
A c t.(c)
This amendment has proved far more fruitful o f results than that
o f 1897. The Ontario bureau o f labor was established in 1900, and
since 1901 the secretary in charge thereof has held also the office o f
registrar under the Trades Disputes Act. His report for 1902 ( d)
states that during the year he had officially intervened as conciliator
in 12 disputes, and the report for 1903 ( e) shows similar intervention
during that year in 11 disputes. Most, if not all, o f these were
strikes or lockouts o f which the same reports show that there were in
Ontario a total o f 75 in 1902, and 82 in 1903. The reports simply
enumerate the cases in which intervention occurred, with no details to
show the manner o f intervention or results. In each o f the reports
« These facts as to results under the Ontario law o f 1894 are as set forth in
a statement by the registrar under the act in 1900, and in the Dominion Labor
Gazette, Vol. II, p. 611.
®Sec. 4. The amendment in full is in the Labor Gazette, Vol. II, p. 610.
c Cf. supra, p. 549.
^ Pages 88, 89.
®Page 113.
50—No. 60—05

m -----12

562

BULLETIN OF THE BUREAU OF LABOR.

the secretary remarks that besides the above official cases he inform
ally 44 assisted in the prevention and adjustment o f a number o f
other disputes ” (1902) or 44acted in the capacity of adviser in a num
ber o f other cases in which disputes have been averted and adjusted ”
(1903). In both years, however, his experience led him to note that
the existence o f a provincial conciliator was unknown to many.
NOVA SCOTIA.
TH E M IN E S ARBITRATION ACTS.

In 1888 Nova Scotia enacted a law, bearing date o f April 16, deal
ing with collective disputes, but applying only to coal mines owned
or leased from the Crown. This statute declared th a t44whenever any
dispute shall arise between employers and employed o f such mines
in regard to wages the employer shall not dismiss or lock out the em
ployed, nor shall the employed strike or abandon work, until after
complaint in writing to the commissioner [o f works and mines] and
adjudication.” ^ ) Disputes are to be brought before the commis
sioner either on complaint o f one party (the employer or a majority
o f the employees) or by a joint application of both. In the former
case the commissioner may summon both parties to come before
him and present evidence, upon which he shall determine whether
the dispute shall be submitted to arbitration. I f he decides in the
affirmative, the commissioner shall forthwith refer the dispute for
arbitration.
Cases referred in either o f the above ways go to a board o f arbi
trators composed o f five members, two appointed permanently by
the governor in council, the other three being chosen for each case as
it arises, one by each o f the parties, and these two naming a third.
I f either fails to appoint an arbitrator the two permanent members
may act as a board, and i f there is a failure to name a fifth arbitrator
in the regular way he may be appointed by a judge o f the supreme
court or the commissioner o f works and mines.
Every employer within the jurisdiction o f the law must register
with the commissioner the name o f a recognized manager or agent,
and employees when applying for arbitration must name a represent
ative, and in any procedure these two act for the parties, and service
o f notices or processes upon them is service upon the parties. The
books and accounts o f employers are to be open to the inspection of
the board through any person delegated for the purpose, who, to
gether with the members o f the board, must take an oath o f secrecy
as to the employer’s affairs. Every award o f the board is to be
signed by at least three members and filed with the commissioner,

« Sec. 7.

GOVERNMENT INDUSTRIAL ARBITRATION.

563

who is to notify both parties o f its nature, and a copy is to be filed
with the prothonotary o f the county. The board may refer any case
for decision to a committee o f three o f their number, including' the
two appointees o f the parties, but their award must be unanimous.
Records o f all proceedings are to be kept, and an annual report made
by the chairman to the commissioner, who is to lay it before the legis
lature. A ll records are to be open to th^ commissioner’s inspection.
A unique form o f money forfeit is provided for failure to abide by
an award. Section 15 of the act prescribes that the employer “ on
receiving notice that arbitration is asked for by the employed may
retain the wages o f all the employed for the fourteen days preced
ing.” I f the award when made is not at once submitted to by the
employed, the sum retained, minus the costs o f the arbitration (cover
ing practically all the expenses o f the act, including members’ per
diem compensation), is forfeited to the employer. I f , on the other
hand, the employer does not submit to the award, he must pay the
retained wages and forfeit an equal sum in Addition, which, minus
the costs, goes to the employed. The same forfeiture is also to occur
for any breach o f the prohibition o f strike and lockout. Resides
such forfeits, awards may, upon motion o f either party, be made a
rule o f the supreme court, which may enforce them by ordinary legal
process, directing a judgment to be entered or execution to issue for
the amount thereof, and awards against an employer act as an attach
ment against his property. Appeal from decisions of arbitrators
to the supreme court is allowed.
Providing, as it does, for reference o f disputes upon the complaint
o f one party to be followed by enforceable awards, it will be seen that
this is a compulsory arbitration system, and the act is notable as
the earliest one providing that method for collective disputes. As
indicated, however, it applied only to a limited field, namely, ques
tions o f wages in the coal mines under the direct control of the gov
ernment.
With an analysis of its provisions the history of the Nova Scotia
law o f 1888 is complete, inasmuch as it was never put to practical use
nor was the board o f arbitration ever appointed. After two years
that act was replaced by another with the same title and nearly iden
tical with it, this second act and a short amendment to it bearing the
same date, April 15,1890.
The only noteworthy changes or additions introduced by the law of
1890 were as follows: First, the employees at each mine are to be
divided into two classes, those working above ground and those em
ployed below, and either class alone may apply for arbitration; fur
ther, a certificate signed by the chairman and secretary of a meeting
called for the purpose by at least five o f the employed, and notice of
which shall have been for three days posted in three public places

564

BULLETIN OF THE BUREAU OF LABOR.

about the mine, is declared to be sufficient notice to the commissioner
o f a desire for arbitration; thirdly, in deciding whether a case shall
be submitted to arbitration the commissioner under the new act need
summon only the party making complaint to appear and submit evi
dence, instead o f both parties, as under the former law; fourth, a
fine o f $100 is imposed upon employers for refusal to register a man
ager and an additional $100 for every succeeding refusal upon request
o f the commissioner; finally, the provision for forfeit is changed so
that instead o f the employer retaining the fourteen days’ wages o f the
employed, he is to deposit the amount, together with an equal sum in
addition, in a chartered bank o f the Province, all subject to the order
o f the commissioner and to be applied by him in accordance with the
same provisions as before.
In 1901 two brief amendments to the law o f 1890, bearing date o f
A pril 4, were passed. The only important change made thereby con
sisted in an alteration of the forfeit plan, so that employers are to
retain wages equal to not more than $3 for each employee instead o f
fourteen days’ pay for each as before, to be deposited together with an
equal sum from the employers, as formerly.
The record made by the law o f 1890, which is still in force, is
scarcely better than that o f the earlier act, for up to the middle o f
1905 it had been put in force in only two cases. (a) The only one
o f these for which details are at hand was in the early part of 1901
and was proceeding just at the time the amendments of that year
were passed. In January a demand for an advance in wages had
been made by all the coal miners o f the Province. In many collieries
the increase was readily granted, but in some it was refused. After
deliberation, the employees at one o f the latter applied to the com
missioner o f public works and mines for arbitration under the act
o f 1890. The commissioner having approved the application, the
board o f arbitrators was appointed and its award, rendered April 25,
settled the dispute and averted a threatened strike. In connection
with this case it should be observed that in the same general dispute
the miners o f another company in the same locality appealed to the
Dominion Conciliation A c t(6) for the appointment o f a conciliator,
preferring that to arbitration. ( c)
TH E CON CILIATIO N ACT,

1903.

In 1903 the Province of Nova Scotia made provision for peaceable
settlement o f industrial disputes in any industry by a law which re« According to a statement by the commissioner o f public works and mines in
1905.
a Cf. supra, pp. 549, 550.
eThis case is described in the Canadian Labor Gazette, Vol. I, p. 507, and
Vol. II, p. 21.

GOVERNMENT INDUSTRIAL ARBITRATION.

565

ceived the royal assent on April 11 and which is known as the Con
ciliation Act, 1903. For this statute the British Conciliation Act of
1896 (a) was copied practically entire and without alteration, save
for the substitution o f the provincial secretary for the British Board
o f Trade as government administrator o f the act. To the law of
the mother country, however, the provincial statute adds certain
specifications with reference to the district or trade boards of con
ciliation whose establishment both laws make it the duty o f the
government to assist.
Under the Nova Scotia act such a board is to consist of six members,
three named by the employers and three by the employees. In the
first week in January of each year each o f those classes is to send to
the other the names of six persons for representatives on the board,
three o f whom shall be designated as members for the current year,
the other three being available for appointment in case o f death or
resignation o f any of the first three. Boards shall have jurisdiction
for “ all questions arising between the employer and the workmen,
including any question between one trade and another ” (sec. 6 ); but
for disputes affecting more than one trade a joint conciliation board
must be formed, composed o f the three employees’ representatives
from each trade and an equal number o f representatives of the em
ployers. Conciliation boards are left free to establish their own rules
o f procedure. Section 5 o f the act directs that a board o f conciliation,
“ if unable to agree, shall make application to the provincial secretary
for the appointment of a person to act as arbitrator.” Finally, the
law makes no provision for any compulsion in connection with either
reference o f disputes or acceptance o f decisions; but it declares that
“ upon any difference arising between an employer and any o f his
workmen, or upon the works o f an employer, from any cause what
ever, the subject-matter of dispute shall be referred to the board of
conciliation, which shall be summoned within seven days, and if prac
ticable shall give its decision within the next six working days,” and
also declares that the decision o f a board or o f an arbitrator “ shall
be final and binding on both parties.”
The provincial secretary of Nova Scotia states that up to June, 1905,
the provisions, o f the Conciliation Act of 1903 had not been invoked in
any dispute.
BRITISH COLUMBIA.

By a law o f April 12, 1893, the Province o f British Columbia pro
vided for a bureau o f labor statistics and at the same time for con
ciliation and arbitration in labor disputes. So far as concerns the
latter subject, the act simply copies the New South Wales law o f
1892 entire, being for the most part word for word identical with it.

« Cf. supra, pp. 402,403.

566

BULLETIN OF THE BUREAU OF LABOR.

Such variations from the New South Wales act as do appear concern
matters o f insignificant detail only and need not therefore be men
tioned in particular save to note that the functions delegated to the
clerk o f awards in the New South Wales law were to be performed
by the commissioner o f labor statistics or his deputy in British
Columbia.
The measure in British Columbia was from the first naught but a
dead letter, as the councils for which it provided were never even
established. The year after it became law it was repealed by the
Labor Conciliation and Arbitration Act, 1894. Abandoning the
permanent councils o f the former law, this act provides for concilia
tion and arbitration before councils appointed for each case as it
arises, thus:
Reference o f disputes is entirely voluntary, and may be accom
plished either by a joint agreement o f the parties or by an applica
tion made by one and assented to by the other. Reference may be
made either to conciliation, to be followed by arbitration i f necessary,
or to arbitration direct. Applications are to be made to the com
missioner o f councils o f labor conciliation and arbitration, which
office is to be filled by the secretary of the Province, upon designation
thereto by the governor.
Members o f conciliation councils are to be appointed by the gov
ernor upon nomination o f the parties. I f the reference is by joint
agreement,'each party is to appoint two members, four making up
the council. I f one party alone takes the initiative, it is to name its
two members at the time o f application, whereupon the commissioner
shall request the other party to name two, and if the other two be
not nominated within ten days the reference is voided; but either
party may again apply for a reference. I f the conciliation council
fails to arrange an amicable agreement it must so report to the com
missioner, who shall notify each party o f the result, whereupon the
two may jointly require him to refer the ease to an arbitration council
with which all records shall then be filed.
Councils o f arbitration consist o f three members appointed by the
governor, two (one for each party) being nominated by the con
ciliation council before considering a ease, and the third being chosen
by the other two, within four days of their appointment, from the
judges o f the supreme court o f British Columbia, or if he be not
agreed upon by the other two, to be designated directly by the gover
nor. I f disputes are referred to arbitration in the first instance, the
parties are to name the two arbitrators. Members of the conciliation
council may sit with the council o f arbitration, but only in an
advisory capacity. No counsel or paid agents may appear. Decisions
are to be by majority vote, to be rendered within seven days after

GOVERNMENT INDUSTRIAL ARBITRATION.

567

hearings close, and to be filed with the commissioner and made public.
I f both parties agree beforehand to be bound by it the award may be
made a rule o f the supreme court on the application o f either party.
Members o f either council may request the commissioner to summon
iwitnesses and anyone refusing to attend and testify may be fined not
over $20 by any justice o f the peace. The compensation o f members
o f councils and all other expenses, except those of the parties and their
witnesses, are to be paid by the government. Finally, one limitation
is put upon the jurisdiction of the act in that no dispute affecting less
than 15 employees may be the subject of conciliation or arbitration
under it.
As to practical results no more can be said for this law of 1894
than for its predecessor. No proceedings for conciliation or arbitra
tion under it had been taken down to 1901, according to a statement
by the deputy provincial secretary in that year, and none have oc
curred since.
QUEBEC.

A law o f March 28, 1901, comprises Quebec’s legislation concerning
conciliation and arbitration. It is unnecessary to more than mention
the statute, however, as it is simply a copy o f the unsuccessful
Ontario law o f 1894 without the subsequent amendments. Beyond
slight variations in phraseology but four changes were made in the
copying, and these touch no points of any consequence.
By act o f A pril 25, 1903, (®) the Quebec law of 1901 was amended
in much the same manner as was the Ontario law in 1902, ( b) the
Ontario amendment manifestly having served as model for Quebec
legislation just as the principal Ontario act had. By the amendment
in Quebec, as in Ontario, provision was made for intervention by the
registrar alone, that oflicial being directed to intervene and endeavor
to effect a settlement by conciliation in any dispute in which a strike
or lockout has occurred or is threatened whenever he is requested so
to do by five or more employees, or by the employers, or by the mayor
o f the municipality in which the dispute exists. In one important
respect, however, the Quebec amendment goes further than that of
Ontario by making it the duty o f the registrar, whenever such a dis
pute as above described comes to his knowledge, “ either from the
newspapers or otherwise,” to visit the locality for purposes of inter
vention “ without awaiting for a request in writing to be made to
him.” The remainder o f the Quebec amendment simply gives general
directions as to what the registrar is to do when intervening either
by request or on his own motion, these being somewhat more specific
but to practically the same intent as those laid down in the Ontario
« Edward VII, chap. 25.

»C f. supra, p. 561.

568

BULLETIN OF THE BUREAU OF LABOR.

amendment, the registrar being directed to “ inquire into the causes
and circumstances o f the dispute, take such steps as to him seem
expedient for prevailing upon the parties to meet and settle their
disputes themselves, and promote agreements between employers and
workmen with a view of inducing them to submit their disputes to a
council o f conciliation or arbitration before having recourse to strikes
or lockouts.”
Under the Quebec act o f 1901 a registrar, under the title of “ clerk
o f the councils o f conciliation and arbitration,” was duly appointed,
and his annual reports to the minister o f colonization and public
works reveal the facts as to the operation o f the law.
By public notice and circulars the clerk called upon the various
organizations or persons entitled to vote for nominees to the arbitra
tion councils to piit themselves in communication with him for the
purpose o f such nomination. For the councils for disputes outside
o f railways, 28 persons or associations representing employers, and
52 labor organizations claimed the right to vote, but o f these only
12 o f the former and 28 o f the latter actually made nominations from
which appointments were made, and the council o f arbitration for
other than railway disputes was duly organized March 8, 1902. The
council o f arbitration for railway disputes was never organized, as
no employers or employees in that industry made any reply to the
clerk’s communication. In view of the results as to the formation
o f the arbitration councils, the clerk in his first annual report, made
in June, 1902, remarked that the act “ has not, therefore, at the start
yielded all the results that we had a right to expect from it.”
Even more discouraging, if anything, was the first report as to the
conciliation provisions o f the law. The clerk reported that “ since
the putting in force of this law several conflicts have arisen in which,
I regret to say, the employers have refused to have recourse to it,”
and cited specifically five such cases in which he had called the
employers’ attention to the law, and proposed the formation of a
council o f conciliation thereunder, thrice upon his own motion and
twice upon request o f the workers, only to be met in every case by
the employers’ refusal. The clerk therefore urged the need of an
amendment “ to provide for less complicated means of execution in
order to attain the object aimed at by the law,” and suggested that
the clerk should be empowered to proceed to the locality of disputes
and act as conciliator upon his own initiative. As already noted,
the recommendation o f the clerk was carried out in the amendment of
A pril 25, 1903.
For the year ended June 30, 1903, five cases under the law are
reported by the clerk. One o f these, which occurred before the
amendment o f 1903, is the only instance in which the conciliation
method provided by the original law o f 1901 was ever carried out.

GOVERNMENT INDUSTRIAL ARBITRATION.

56.9

In this instance a strike was threatened, but the men appealed ,to the
clerk, whose proposal to the employer o f a council o f conciliation
under the law was accepted, the council was duly formed, and the
dispute settled therein without any strike intervening. The other
four cases in 1902-3 occurred subsequent to the 1903 amendment. In
one (a strike) the men asked for a conciliation council under the act,
but the employer refused; in two the clerk intervened o f his own
motion and reported, “ I have reason to believe that my intervention
contributed to the final settlement o f these two strikes,” since in each
the mode o f settlement suggested by him was ultimately followed,
though his efforts at the time of intervention were unavailing; and
in the remaining case (a strike) the clerk proposed to intervene, but
found the dispute already on the way to a settlement.
For the year ended June 30,1904, nine specific cases o f proposed or
actual intervention under the law are reported. To judge by a some
what indefinite allusion, there may have been some other cases in this
year in which the clerk offered his services, but it. is stated that “ in
none o f those cases would the parties have recourse to conciliation.”
Five o f the above nine cases were strikes. The action taken in all nine
cases was by the clerk alone, and upon his own initiative, save in one
instance (not a strike), when the workers requested his intervention,
and in all o f the strike cases action was not taken until after the stop
page o f work. In one case (a strike) the clerk succeeded in effecting
a settlement by conciliation; in one case (not a strike) he found that
the dispute was already settled; in one case he found the strike vir
tually terminated by the hiring of new hands; while o f the remaining
six cases in, which the clerk intervened, in five his efforts failed to
effect a settlement and in the remaining case the result is not indi
cated by the report.
SOU TH AM ERIC A.
AR GENTINA.

Notable chiefly as being the first legislation o f the kind in South
America is a recent decree (a) of Argentina, bearing date of Octo
ber 20, 1904, which provides for conciliation and arbitration in
certain cases o f collective industrial disputes, namely, disputes over
questions o f Sunday rest or the maximum day’s work.
When such differences arise it is made the duty o f the chief o f
police o f Buenos Ayres, the capital, to intervene and offer his services
as mediator to the parties. In such intervention that official is
directed to inquire into the causes o f the dispute, and then request
The present account o f this decree follows that in the British Labor Gazette,
December, 1904, p. 361, which was based on information furnished by the
British minister at Buenos Ayres.

570

BULLETIN OF THE BUREAU OF LABOR.

o f the parties or their representatives an interview in which each side
may state its view of the motive and origin of the controversy. I f
the offer o f mediation by the chief o f police is accepted, he shall
endeavor to bring the parties to an amicable agreement, and if such
a settlement be effected a written agreement shall be drawn up which
shall contain both the terms o f settlement and the obligation o f either
side o f complying therewith.
I f the offer o f mediation by the chief o f police be not accepted, or
i f his conciliation efforts fail, he is authorized to offer his services as
arbitrator or for the purpose o f forming an arbitration tribunal com
posed o f one or more persons agreed upon by the parties. I f either
mode o f arbitration be accepted, a written submission o f the case shall
be drawn up setting forth the issues and the obligation of both parties
to abide by the award. The arbitration tribunal (chief of police or
board) is to receive the claims o f each party and consider those
which it thinks necessary, in order to render a decision within the
period stated by written submission. The award, when given, must
be signed by both parties, or their representatives. I f the chief of
police acts as arbitrator he may request the services, if necessary,
o f the procurator fiscal to the federal courts as assessor.
It is worthy o f note that the designation of a police officer to fulfill
the functions o f conciliator or arbitrator in industrial disputes is
unique in legislation upon the subject. A ll the proceedings specified
by the Argentine decree, however, are entirely voluntary for the
parties.
T H E U N ITED STA TE S.
FEDERAL LA W S.

In 1885 the number o f strikes in the United States, which previous
to that year had been under 500 per annum, involving less than
155,000 work people, rose to 645, and threw 242,705 employees out o f
work, and in 1886 the number o f strikes leaped up to 1,432, involving
508,044 workers. (a) On April 22, 1886, President Cleveland sent a
special message to Congress, calling attention to this “ problem which
recent events and a present condition have thrust upon us,” and
recommending legislation by Congress to provide for the adjustment
o f labor controversies. Such legislation, it was pointed out, was
entirely proper for disputes touching interstate commerce, and in the
President’s opinion should proceed along the lines o f voluntary arbi
tration. A commission of three, composed o f the United States
Commissioner o f Labor, with two other arbitrators to be attached
to the Commissioner’s Department as a permanent arbitration body,
« See Sixteenth Annual Report o f United States Commissioner o f Labor, p. 16.

GOVERNMENT INDUSTRIAL ARBITRATION.

571

was suggested. It was also recommended that this commission should
be given power “ to investigate the causes o f all disputes as they
occur, whether submitted for arbitration or not, so that information
may always be at hand to aid legislation on the subject when necessary
and desirable.” (°)
Several bills dealing with the settlement o f industrial disputes had
been introduced in Congress in March, previous to'the transmission
o f this message, and one o f these passed the House before the close
o f the session. In the succeeding session this bill also passed the
Senate (February, 1887), but failed to receive the President’s signa
ture. This defeat led to the introduction of the bill once more in the
House, but altered, according to its introducer, “ to conform to the
views o f the President” by the addition o f a provision for inde
pendent initiative by the Government for either arbitration or
investigation o f disputes. With some amendment this measure finally
passed both Houses, and was approved by President Cleveland Octo
ber 1, 1888.
TH E L A W OF 1888.
The law o f 1888 applied only to disputes between “ railroad or other
transportation companies ” engaged in interstate traffic or commerce
within the Territories or the District of Columbia and their employ
ees, whenever such disputes “ may hinder, impede, obstruct, interrupt,
or affect transportation o f property or passengers.” It provided two
distinct lines o f action, the one voluntary arbitration to be instituted
by the parties, the other public investigation o f disputes and media
tion upon the initiative of the Government.
For arbitration purposes it was provided that upon the written
proposition o f one party to a dispute, if the other agreed, a board of
arbitration might be formed, the railroad to appoint one member, the
employees another, and these two members to choose a third, as
chairman, all three to be “ citizens of the United States and wholly
impartial and disinterested in respect to such differences or controver
sies.” Such a board was to “ possess the same power as to subpoena
ing witnesses, compelling their attendance, administering oaths, pre
serving order during sittings, and compelling production o f papers
and writings relating to disputes, as are possessed by United States
commissioners appointed by a United States circuit court.” Its
duties were to organize at once at the nearest practicable point
to the place o f origin of the controversy and “ to hear and deter
mine the matters o f difference which may be submitted to them
in writing by all the parties,” giving all parties full opportunity
to be heard in person or by witnesses, and, if so desired, repreo Senate Ex. Doc. No. 130, 49th Cong., 1st sess.

572

BU LLETIN OF TH E BUREAU OF LABOR.

scnted by counsel. The board’s decision, a majority vote being suffi
cient therefor, was to be publicly announced and transmitted, together
with the testimony taken, to the United States Commissioner o f
Labor and be immediately published by him. With the rendition of
the decision the board’s duties were to cease, and the acceptance of
the award was left entirely to the will of the parties.
So much o f the act of 1888, it will be seen, was simply permissive in
character, and save for the power it granted with reference to wit
nesses and the production of evidence and the publication o f decisions
by the Commissioner of Labor did no more than lend Government
sanction to a procedure which parties in dispute could have carried
out without the law. As a matter o f fact, in no dispute did employers
or employees ever attempt to make use o f these provisions.
The remainder o f the statute provided for more positive action by
the Government and gave the President power, in case of any dispute
affecting interstate or territorial commerce, to appoint two commis
sioners, one at least from the State or Territory in which the contro
versy arose, who, with the Commissioner o f Labor as chairman, should
constitute a “ temporary commission for the purpose of examining the
causes o f the controversy, the conditions accompanying and the best
means for adjusting it, the result of which examination shall be imme
diately reported to the President and Congress, and on the rendering
o f such report the services of the two commisioners shall cease.”
Such a commission was to have the same powers as the above de
scribed arbitration boards appointed by the parties. Further defin
ing the commission’s duties, it was prescribed, in precisely the same
terms as are used in directions for arbitration in several State
laws,(a) that “ upon the direction of the President * * * the
commission is to visit the locality of the pending dispute, * * *
make careful inquiry into the cause thereof, hear all persons inter
ested therein who may come before it, advise the respective parties
what, i f anything, ought to be done or submitted to by either or both
to adjust such dispute, and make a written decision thereof,” such
decision to be made public and to be recorded by the Commissioner o f
Labor. The services o f such a commission might be tendered by the
President either upon his own motion, upon request from one of the
parties, or upon request from the executive o f a State.
In this second portion o f the law o f 1888 the way was opened for
Government intervention independent o f the parties for the purpose
o f authoritative investigation and publication o f the facts regarding
disputes, together with some measure o f conciliation. Only once did
such intervention occur. The great railroad strike at Chicago in
1894 in sympathy with the workmen at Pullman began on June 26

®Cf. infra, pp. 588-591.

GOVERNMENT INDUSTRIAL ARBITRATION.

573

and was virtually ended by July 13. On July 26 President Cleve
land issued a commission appointing United States Commissioner of
Labor Carroll D. Wright, John D. Kernan, o f New York, and
Nicholas E. Worthington, of Illinois, as commissioners, under section
6 o f the law o f 1888, and directing them to proceed to Chicago to
carry out the duties prescribed by that section, viz, to examine “ the
causes o f the controversy, the conditions accompanying, and the best
means for adjusting it; the result o f which examination shall be im
mediately reported to the President and Congress.” (a) Manifestly
this commission, appointed two weeks after the close o f the strike,
could be o f no service toward settling that dispute. It could, how
ever, carry out the terms o f the statute to the extent o f examining
as to the facts in the controversy and the best means o f settling such
disputes in general.
The commission convened in Washington on July 31 and adopted
a resolution fixing August 15 as the date for assembling at Chicago.
Sessions were held in Chicago for thirteen days, August 15 to 30,
with a subsequent session in Washington on September 26. W it
nesses to the number of 109 were examined, 28 o f whom were called
by the commission, the others being presented by the parties to the
dispute, save one who volunteered his testimony. November 14 the
commission made its report to the President, who laid the same before
Congress on December 10.
Printed in an octavo volume, the document contains the general
report o f the commission in 42 pages, 651 pages o f testimony given
before the commission in Appendix A, and a second appendix o f 25
pages containing a summary o f remedies for and methods of settling
industrial disputes, suggested in various communications received by
the commission. The general report presented an extensive review
o f the strike and the commission’s conclusions and recommendations.
The former was not simply historical, but critical as well, with fre
quent criticism by the commission of the acts or attitude o f the par
ties in various stages of the dispute. The recommendations o f the
commission were addressed in three directions, viz, to Congress, to
the States, and to employers. O f those along the latter two lines
suffice it to say that the commissioii urged the States generally to
adopt some system o f conciliation and arbitration like that o f the
State board in Massachusetts, and to make illegal all contracts requir
ing employees, as a condition o f employment, to agree to leave or not
to join labor organizations, and urged employers to recognize labor
organizations and the reciprocal relations o f employer and employed
and to voluntarily consider the interests of labor as well as those of
capital.

o Sec. 6 o f the law.

574

BULLETIN OF THE BUREAU OF LABOR.

It was through its recommendations to Congress that the commis
sion’s work was most likely to produce tangible results. In these
the commission urged in general that there should be a permanent
tribunal always ready to deal with railroad disputes; that such a tri
bunal should have the power to intervene upon its own motion as
well as upon request from parties in dispute; that it should aim first
at conciliation, but where that failed should investigate and fix
responsibility for the dispute in a published report for the guidance
o f public sentiment. Specifically, it was proposed:
(1) That a permanent strike commission be established, consisting
o f three members, with duties and powers of investigation and recom
mendation in case o f disputes similar to those o f the Interstate Com
merce Commission in respect to rates, etc.; that the United States
courts should be given power to compel railroads to obey the decisions
o f the commission; that railroads and incorporated trade unions
engaged in any controversy should each have the right to appoint a
representative to serve as temporary member o f the commission for
that dispute; that during the pendency o f a proceeding before the
commission strike or lockout should be unlawful, and for six months
after a decision had been rendered it should be unlawful for the rail
road to discharge workmen in whose places others were to be
employed, except for inefficiency, violation of law, or neglect o f duty,
or for said employees to quit the service without thirty days’ notice,
or for a union to order or counsel otherwise.
(2) The commission recommended that existing statutes be so
amended as to require that national trade unions should provide in
their articles o f incorporation and in their constitutions, rules, and
by-laws that a member should forfeit all his rights and privileges as
such for participating in or instigating force or violence against
persons or property during strikes or boycotts, or for seeking to
prevent others from working by violence, threats, or intimidation,
but that at the same time the members of such incorporated unions
should be no more liable personally for corporate acts than are stock
holders in corporations.
Eight days after the report o f the Chicago commission had been
laid before Congress, a bill for an act to replace the law o f 1888,
drafted by two members of the commission at the request o f the
House Committee on Labor, was introduced in the House of Kepresentatives. In every session for the next three years this or similar
bills were before Congress, but not until 1898 was a law passed.
There does not appear to have been any serious opposition in either
House to these measures, committee reports were favorable, and twice
bills were passed by the House. Both the national political parties
in 1896 inserted planks in their platforms in favor of legislation to
provide for the settlement o f railroad disputes. The long delay in

GOVERNMENT INDUSTRIAL ARBITRATION.

575

securing such legislation was apparently simply the result o f the
crowding out o f the subject by other matters. In 1898, however,
a bill was finally gotten through both Houses, and received the
President’s approval on June 1.
TH E L A W OF

1898.

The act o f 1898 superseded that o f 1888, and is the law now in force.
Compared with the earlier statute, the law o f 1898 is much more pre
cise and detailed in its provisions. Comparison o f the main features
o f the two measures shows that while the act o f 1888 provided for
(1) arbitration, (2) authoritative investigation, and, more or less
incidentally to the second, (3) conciliation, that o f 1898 provides only
for (1) conciliation and (2) arbitration.
Section 1 o f the law o f 1898 defines carefully its jurisdiction,
which is, however, essentially the same as was that o f the law of
1888, extending to all railroads engaged in interstate commerce and
such o f their employees as are engaged in train service.
The provisions for conciliation are contained in section 2 and sim
ply direct that in case o f disputes concerning wages, hours o f labor,
or conditions o f employment which seriously interrupt or threaten to
seriously interrupt the business of a railroad the chairman of the
Interstate Commerce Commission and the Commissioner o f Labor
shall, upon request from either party, promptly endeavor to settle
the controversy by mediation and conciliation, and i f such efforts
prove unsuccessful they shall endeavor to secure an arbitration as
provided for in the law. It will be observed that in place of a
temporary body for each dispute, as in the law of 1888, there is here a
permanent agency always ready to act; but that, on the other hand,
while under the old law the Government could intervene independ
ently o f the parties, under the present law the Government may
intervene only upon request from at least one o f the parties.
A ll but three o f the remaining twelve section^ o f the act are devoted
to arbitration. As in the act o f 1888, so here, arbitration under the
law is absolutely voluntary as to submission thereto and can occur
only by agreement o f both parties. The arbitrating body remains
essentially the same as before, consisting o f three persons, one each
named by the parties and the third chosen by these two. The
later law adds, however, that when the employees are members of a
labor organization that organization shall name their member, and
that in case the two members fail to choose a third within five days
after their first meeting the odd member shall be appointed by the
chairman o f the Interstate Commerce Commission and the Commis
sioner o f Labor. Again, as in the old law, the board o f arbitration
is given full power to secure testimony and documentary evidence.

576

BULLETIN OF THE BUREAU OF LABOR.

But when it comes to the procedure for arbitration, and the matter
o f enforcement especially, the law of 1898 departs widely from the
earlier act. Whereas the old law specified simply that the case
should be submitted in writing, that all parties should be heard
and a written decision published, with nothing said o f enforcement,
the present statute requires that the parties shall bind themselves
under pain o f liability for damages to refrain from strike or lockout
pending the arbitration, not to evade the award for a month at least
by ceasing to hire or be employed, and, if work and employment are
continued, to fulfill its terms for a year, and the award is made
enforceable as the judgment o f a United States court.
Examining further these arbitration features peculiar to the law of
1898, it is found that the parties in their signed submission, besides
stating the questions at issue and the time and place o f hearing, must
stipulate five things, namely: (1) That pending the arbitration the
status immediately prior to the dispute shall not be changed, with the
proviso that the hearing of the case shall begin within ten days and
the award shall be filed within thirty days after the third arbitrator
is chosen; (2) that the award, when filed in the clerk’s office o f the
United States circuit court of the district, shall be final and conclu
sive upon the parties, unless set aside for error o f law apparent on
the record; (3) that the parties will faithfully execute the award,
and that it may be enforced in equity so far as the powers o f a court
o f equity permit; (4) that for three months after the award is ren
dered employers and workpeople who may be dissatisfied therewith
shall not, on account o f such dissatisfaction, sever the relation of
employer and employed without thirty days’ written notice; and (5)
that the award shall continue in force for one year and no new arbi
tration on the same subject between the same parties shall be had
during the year unless the award be set aside on appeal. This strong
agreement is to be acknowledged by the parties before a notary and
a copy filed with the chairman o f the Interstate Commerce Commis
sion. It is to be signed for the employees by their labor organization
or by them individually i f unorganized. In the latter case upon
receipt o f the agreement the chairman o f the Interstate Commerce
Commission is to notify the arbitrators o f the time and place of the
hearing, but he shall do so only when he is satisfied that the signers
represent a majority o f all the employees in the same grade and
class in the service o f the same employer, and that an award can
justly be regarded as binding upon all such employees.
For the enforcement o f the first and fourth stipulations of the
agreement it is made unlawful during the arbitration proceedings
for the employer to discharge his employees except for inefficiency,
violation o f law, or neglect o f duty, or for the organization o f the

GOVERNMENT INDUSTRIAL ARBITRATION.

577

employees to order a strike, or for such employees individually to
unite in, aid, or abet a strike; and for a period o f three months after
the rendering o f an award it is illegal for an employee to leave his
employer or for the employer to discharge an employee without thirty
days’ notice, or for an employees’ organization to order or counsel
otherwise, except that this restriction applies only to leaving employ
ment “ without just cause ” and to discharges for reasons other than
“ inefficiency, violation o f law, or neglect o f duty.” The penalty for
violation o f the above prohibitions is liability for damages, provided,
however, that nothing in them shall be construed to prevent an em
ployer from reducing his force o f employees “ whenever, in his judg
ment, business necessities require.”
For the enforcement o f the awards it is provided that they shall
become operative as soon as filed in the clerk’s office o f the United
States circuit court, and judgment shall be entered upon them accord
ingly within ten days. During these ten days either party may
file exceptions for matters o f law apparent on the record, which
shall be decided by the circuit court, subject, however, to appeal
to the circuit court o f appeals, whose decision on the exceptions
shall be final. I f exceptions are sustained judgment setting aside
the award shall be entered, but in such case the parties may, if they
choose, agree upon a judgment to be entered, which shall have the
same force as an award. It is expressly provided in connection with
the enforcement o f awards that “ no injunction or other legal process
shall be issued which shall compel the performance by any laborer
against his will o f a contract for personal labor or service.”
The above covers that portion o f the act o f 1898 dealing with
conciliation and arbitration. It remains to note three special pro
visions o f the law. By one it is directed that where a receiver ap
pointed by a Federal court is in control o f a railway the employees
o f the road shall have the right to be heard by such court upon all
questions affecting the terms and conditions o f their employment,
and such receiver shall not reduce wages without the authority o f the
court given after due notice to the employees. A.gain, it is enacted
that in every incorporation o f a national trade union under the
Federal law therefor, (a) the articles o f incorporation and the con
stitution, rules, and by-laws o f the union must provide that a member
shall cease to be such by participating in or instigating force or
violence against persons or property during a strike, lockout, or
boycott, or by seeking to prevent others from working through
violence, threats, or intimidations. A t the same time members o f
such incorporated unions are relieved o f all personal responsibility
a Laws

50—No. 60—05

m ------ 13

o f 1885-86, chap. 567.

578

BULLETIN OF THE BUREAU OF LABOR,

for the acts, debts, or obligations o f the organization, and the organi
zation may not be held liable for illegal acts o f members. Finally,
it is made a misdemeanor punishable in United States courts by a
fine o f from $100 to $1,000 for a railroad subject to the act to require
o f an employee an agreement not to join a labor organization, or to
threaten him with loss o f employment or unjustly discriminate
against him for such membership, or to require o f employees con
tributions to any fund for charitable, social, or beneficial purposes,
or to require employees to release the employer from legal liability
for injuries because o f contributions to such a fund, or to “ blacklist ”
discharged employees.
Recapitulating, so far as concerns the settlement o f industrial dis
putes the Federal law o f 1898 provides for (1) conciliation by a per
manent Government agency with power to intervene upon request
from one party, and (2) arbitration, by a board to be appointed for
each dispute by the parties, the arbitration after the case has been
submitted being compulsory in character but the submission thereto
being entirely voluntary for both parties. One general characteristic
o f the act may here be emphasized also in that it not only recognizes
but encourages organization o f railway employees, as affording better
opportunity for successfully dealing with disputes.
Compared with the recommendations of the Chicago commission of
1894, the law o f 1898 is found to follow many of them quite closely,
and to contain practically all of them with three important excep
tions. In the first place, the law o f 1898 contains no provision for
authoritative investigation and report as to the causes o f disputes,
which was considered important by the commission for the sake o f
enlisting public sentiment as a force toward settlement. In the sec
ond place, the law permits no independent initiative on the part of
the Government for conciliation purposes, whereas the commission
emphasized the need o f an independent agency to promptly intervene
without waiting for a request from one o f the parties. Thirdly, and
most important o f all, the commission was in favor o f a permanent
Government commission for purposes of arbitration, with powers
similar to those o f the Interstate Commerce Commission—that is, able
to intervene upon the complaint o f one party and render a decision
enforceable in the courts (against the employer), whereas the law pro
vides no permanent or Government arbitrating body at all, and its
temporary arbitration board can act only upon consent o f both parties.
The difference here is fundamental and amounts essentially to the d if
ference between compulsory arbitration before a Government tribunal
and voluntary arbitration before a private tribunal. The difference
as to the compulsory character of the arbitration hangs upon the sub
mission which in the law is absolutely voluntary, but which the com

GOVERNMENT INDUSTRIAL ARBITRATION.

579

mission evidently intended should be compulsory upon the complaint
o f one party. («)
The United States Industrial Commission in 1901 reported that in
one or two instances the chairman o f the Interstate Commerce Com
mission and the Commissioner o f Labor, acting under the law o f 1898.,
had put themselves in communication with the parties to a dispute,
but that in all such cases the railway companies had refused to arbi
trate.
Aside from this the present Jaw has never been put in use
for the settlement o f disputes.
STATE L A W S .

A t the beginning of the year 1905, 24 States had passed laws
for industrial arbitration or conciliation, and 1 other State by its
constitution directed such legislation. The earliest law upon the
subject was passed in Maryland in 1878*, and the second by New
Jersey in 1880. In 1883 Pennsylvania passed her first arbitration
act, and the first Ohio statute was enacted in 1885. New York,
Massachusetts, Kansas, and Iowa all legislated upon the subject in
1886, followed by Montana and Colorado in 1887, Missouri and Mich
igan in 1889, North Dakota in 1890, California in 1892, and Louis
iana in 1894. In 1895 Wisconsin, Texas, Minnesota, Connecticut,
and Illinois were added to the list, with Utah in 1896, Indiana and
Idaho in 1897, and Washington in 1903. In Wyoming the consti
tution o f 1890 directs such legislation, which has not as yet been
enacted, however. The laws o f Utah and Idaho, it may be noted,
accord with express provisions in the constitutions o f those States.(c)
A very little comparison o f the State laws reveals marked similari
ties in many cases, so that they may all be grouped in four classes,
as follows, the States whose laws are included and the years in which
their earliest acts providing for the system in question were passed
being given in each case:
1.
Laws providing for local arbitration, with no permanent agency
therefor: M aryland,^) 1878; New Jersey,(e) 1880; Pennsylvania,^)
1893; Texas, 1895.*&
« The commission was not entirely specific as to thi^ matter of submission, but
its language in the discussion of recommendations and its use o f the Interstate
Commerce Commission as a model for the proposed strike commission scarcely
leave any other interpretation possible.
&Report of United States Industrial Commission, Vol. X V II, p. 424.
c Compilations o f American laws may he found in the reports of several of
the State hoards of arbitration. These include only those statutes remaining
In force at the time o f publication. The most complete, perhaps, may be found
in the Massachusetts and New York reports.
f See also under 2.
^ See also under 3.
« See also under 4.

580

BULLETIN OF THE BUREAU OF LABOR.

2. Laws providing for permanent district or county boards estab
lished by private parties: Pennsylvania, 1883; O hio,(a) 1885; Iowa
and Kansas, 1886.
3. Laws providing for arbitration or conciliation through the
agency o f State commissioners of labor: Colorado,(a) 1887; Mis
souri,^) 1889; North Dakota, 1890; Washington, 1903; Maryland,
1904.
4. Laws providing for a special State board or commission for the
settlement o f industrial disputes: New York, 1886; Massachusetts,
1886; Montana, 1887; Michigan, 1889; California, 1891; New Jersey,
1892; Ohio, 1893; Louisiana, 1894; Connecticut, Illinois, Minnesota,
and Wisconsin, 1895; Utah, 1896; Colorado, Idaho, and Indiana,
1897; Missouri, 1901.
In the following pages these groups are taken up in the order
named above for an analysis o f the various State laws. The quota
tions used in the course o f the analysis are from the laws under
consideration.
L o cal A r b it r a t io n w i t h No P e r m a n e n t A g e n c y .

This was the earliest system tried in the United States, having been
established in Maryland by act o f April 1,1878. ( 6) This law, which
is still in force, provides three modes o f procedure for arbitration in
industrial disputes: First, the parties may by agreement refer the
dispute to a judge or justice o f the peace, whereupon the judge or
justice may “ hear and finally determine in a summary manner ” said
dispute; second, the parties may agree to submit the case to arbitra
tion, whereupon any judge or justice o f the peace, upon application,
is to appoint two or four persons, one half employers and the other
half employees, who, with the judge or justice, “ shall have full power
finally to hear and determine such dispute;” third, the parties may
by agreement adopt any other mode o f arbitration, and the award
“ shall be final and conclusive between the parties.” In case o f the
first two methods provision is made for enforcing awards in that, after
four days for opportunity to show fraud or malpractice or failure to
give the parties due notice in the arbitration, the decisions are to be
entered as judgments *of the judge or justice rendering them or
appointing the arbitrators, and “ execution thereon shall be awarded
as upon verdict, confession, or nonsuit.” The costs o f any arbitration
are to be borne equally by the parties.
The Maryland law makes special provision for disputes to which
any corporation incorporated by the State and in which the State is
interested as a stockholder or creditor is a party. In such a case the
State board o f public works has-power, i f it considers that the dispute
o See also under 4.

&Code o f Public Laws, art. 7.

GOVERNMENT INDUSTRIAL ARBITRATION.

581

will tend to “ impair the usefulness or prosperity of such corporation,”
to demand and receive a statement o f the case from the parties, to pro
pose arbitration to them if it thinks fit, and provide for the carrying
out o f the same if accepted. In case either party declines such a pro
posal, it is the duty o f the board to “ examine into and ascertain the
cause ” o f the dispute and report to the next general assembly. (a)
The New Jersey law of March 10, 1880, (*>) provides that if a
majority o f the employees in any manufacturing establishment give
notice to the employer that they are dissatisfied with existing or
proposed conditions o f labor and that they propose to submit the mat
ter to arbitration and have appointed an arbitrator to represent
them, “ it shall be the duty ” o f the employer, in case he can not
adjust the dispute and if he “ chooses to accept ” arbitration, to name
another arbitrator. These two are then to select a third, and the
three are to hear and examine the case, for which purpose they may
administer oaths, and render a written decision, which shall be
“ deemed to be binding upon both parties submitting the matters in
dispute to arbitration.” Parties may be represented by counsel at
hearings. Costs are to be apportioned as the parties agree or the
arbitrators decide.
In 1886 the above was supplemented by another law dated April
23. (c) Thereby it was provided that any dispute between employers
and employees engaged in manufacturing may “ by mutual consent o f
the parties ” be submitted in writing to a board o f five arbitrators,
two named by the employer and two by a majority o f the employees
at a special meeting held for the purpose, these four selecting a fifth,
who shall be chairman. These arbitrators shall take an oath to faith
fully and impartially discharge their duties. They are given power to
compel the attendance of witnesses and the production o f books and
papers by means o f subpoenas issued by local courts. Proceedings
u shall be, as far as possible, voluntary,” and counsel are not permit
ted to appear under the act o f 1886, and the costs of arbitration
under that law are to be met by “ voluntary subscription.” Within
five days after the completion o f hearings the board is to render a
written decision, which the law declares “ shall be a final settlement ”
and “ binding and conclusive between the parties.”
The laws o f 1880 and 1886 still stand on the New Jersey statute
books. Besides these there is also provision for local arbitration
in the act o f 1892, which established a State board of arbitration.
The local arbitration features o f this law o f 1892 are considered
below in connection with similar provisions in several other States.*&
®See also, infra, p. 590, for law providing for intervention of the chief o f the
bureau o f industrial statistics.
&Public laws of 1880, chap. 138.
o Laws o f 1886, p. 315.

582

BULLETIN OF THE BUREAU OF LABOR.

The State o f Pennsylvania had in 1883 established the second o f
the four systems indicated in the above classification o f laws, but
in 1893 provided also for loeal arbitration without permanent agency
in an act bearing date o f May 18. (a) This law is still in force.
Though by no means identical with either, it resembles the Maryland
statute much mord than that of New Jersey. It provides for but
one mode o f arbitration, but prescribes for that with considerable
detail. Whenever a difference arises either party, or both parties
jointly, may apply to the loeal court o f common pleas to constitute a
board o f arbitration. When this application is made jointly the
court may at its discretion “ grant a rule on each o f the parties
* * * to select three citizens of the county o f good character
and familiar with all matters in dispute ” as members of the board,
and when these have been appointed the court is to name three more
u o f well-known character for probity and general intelligence, and
not directly connected with the interests o f either party to the dis
pute,” the board thus consisting o f nine members. The chairman is
to be named by the court and to be one of the three members ap
pointed by it. I f but one party applies to the court, the latter is to
u give notice by order of court to both parties,” requiring each o f
them within ten days to appoint the three members as above, and if
either party then refuses or neglects to make the appointments, the
court is to name the six persons necessary to make up the board.
The law prescribes the fullest possible hearing o f cases, the board
having power to compel attendance o f witnesses and the production
o f evidence. Parties are allowed counsel i f they so desire. The
decision o f the board, reached by a majority vote o f the members, is
to be filed in the court where the application was made, and, as the
law declares, “ shall be final and conclusive o f all matters brought
before them for adjustment.” Costs, including compensation to. the
members o f the board, are to be paid by the county. ( 5)
The fourth State in the first group o f laws as here classified is
Texas, whose one statute dealing with arbitration of disputes bears
date o f April 24, 1895,( c) and is still in force. This provides for
arbitration “ upon mutual consent o f all parties ” before a board of
five persons, two each chosen by employers and employees, these four
to select a fifth as chairman. The appointment o f the two arbitrators
by employees is to be made so far as possible through the medium of
labor organizations. Where the employees belong to a union which
is a member o f a federation, the central body is to make the appoint
ment. In case their union is not a member o f any such central body *&
« Laws o f 1893, No. 55.
&See also, infra, p. 586, for law providing for district boards.
©Laws of 1894-95, chap. 379.

GOVERNMENT INDUSTRIAL ARBITRATION,

583

the union itself is to make the appointment, and in case they are not
organized a majority o f them, at a meeting held for the purpose, shall
make the selection, provision being also made for representation of
nonunion men as well as union where such are involved. When the
four arbitrators can not agree upon the fifth, the latter, upon appli
cation by the four, may be named by the judge o f the judicial district.
When the board has been duly appointed it may apply to the dis
trict judge o f the county for a license, whereupon the judge, if all the
provisions o f the law have been complied with, shall “ make an order
establishing such a board o f arbitration and referring the matters in
dispute to it for hearing, adjudication, and determination.” The sub
mission o f the dispute must be in writing, and the law requires that
in the agreement for submission the parties shall bind themselves to
five conditions: (1) That pending the arbitration the status existing
prior to the dispute shall be maintained; (2) that the award, properly
filed in the district court, shall be final, except for “ error o f law
apparent on the record; ” (3) that they will execute the award, and
that the same may be “ specifically enforced in equity so far as the
powers o f a court o f equity permit; ” (4) that the employees will not
leave the employment o f the employer on account o f dissatisfaction
with the award without thirty days’ written notice to him; and (5)
that the award shall stand in force for one year, with no new arbitra
tion upon the same subject during that time.
The members o f a board must sign a consent to act and take oath
to act faithfully and impartially. Full powers for the summoning
of witnesses and compelling the production of evidence are conferred
upon the chairman. The costs of the arbitration, including per diem
compensation and traveling expenses o f members of the board and
witnesses, are to be taxed upon the parties, either or' both, as the
board may decide, and before the arbitration the parties must give
bond for the payment o f the same.
The award, filed with the district court, shall go into effect, and
judgment be entered upon it accordingly, ten days after the date
o f filing, during which time the parties may file exceptions “ for
matter o f law apparent on the record,” which exceptions shall be
decided by the district court, or, on appeal therefrom, by the court o f
civil appeals. Finally, it is declared unlawful for the employer to
discharge the employees during the pendency o f arbitration, “ except
for inefficiency, violation of law, or neglect o f duty, or where reduc
tion o f force is necessary,” or for the employees “ to unite in, aid,
or abet strikes or boycotts ” against the employer.
The provisions o f this Texas law, so far as concerns the mode of
appointing members o f the board, its licensing by a local court, and
its powers to secure the presence o f witnesses and the production o f

584

BULLETIN OF THE BUREAU OF LABOR.

evidence, are taken direct from the New Jersey law o f 1892 or the
New York statute o f 1886, these provisions being original with the
latter act. But the conditions to which parties must bind them
selves in their submission, the taxing o f costs upon the parties, the
compulsory force o f awards, and the prohibition of interruption o f
employment or work pending the arbitration are peculiar to the
Texas statute.
Maryland, New Jersey, Pennsylvania, and Texas are the only
States which have passed laws providing for the local arbitration
system here considered. A number o f other States, however, have
made similar provision, but as supplementary to a State board, and
while their statutes are therefore classified in the fourth group
above, their provisions for local arbitration may properly be consid
ered here. The States referred to, with the dates o f their earliest
acts containing local arbitration features, are New York, 1886; Mas
sachusetts, 1886; Montana, 1887; California, 1891; Ohio, 1893; W is
consin, 1895; Minnesota, 1895; Idaho, 1897, and Colorado, 1897. The
similar law o f 1892 in New Jersey has already been referred to. (a)
The provisions in six of these States—Massachusetts, Montana, Ohio,
Wisconsin, Idaho, and Colorado—are precisely alike, the Massachu
setts law manifestly having served as model for the others. They
provide that any dispute may be referred to a board whose members
may be mutually agreed upon by the parties to the difference, or each
side may choose one and these two appoint a third. This board is to
have, in respect to matters referred to it, all the powers which the
State board might exercise, and their decision has whatever binding
effect the parties may agree upon in the submission. Such a board
may ask and receive the advice and assistance o f the State board, and
a copy o f its decision is to be filed with the latter, but its jurisdiction
on matters referred to it is exclusive. The members o f such local
boards are entitled to compensation from the city or town in which
the dispute occurs on approval by the mayor or board o f selectmen.
The board’s decision must be rendered within ten days o f the close
o f the hearing. The Minnesota law contains the same provisions,
but requires a consent to act and an oath o f office o f the arbitrators.
It also adds a clause making it the duty o f the State board to aid in
the formation o f such local boards before a strike or lockout has
occurred if the appointment of such a board will tend to prevent a
cessation o f work.
The provisions for local arbitration in the New Jersey law o f 1892
are identical with those o f the earlier New York law o f 1886. These
have already been described as copied in the Texas act o f 1895.
Briefly summarized here, they legalize the submission of disputes to a

« Supra, p. 581.

GOVERNMENT INDUSTRIAL ARBITRATION.

585

board o f arbitration consisting of five members, two each appointed
by the employer and the employees, these four choosing the fifth. I f
the employees are members of a labor organization represented in a
central body, this central body is to appoint their representatives; if
their union be not so affiliated, then the union is to select them; and
i f the employees are unorganized their representatives are to be
chosen at a meeting of a majority of them held for the purpose.
When thus constituted a majority of the board may ask and receive
from the county judge of the county an order establishing and
approving the board and referring the dispute to it. The members
are to sign a consent to act and take oath, and the board is given
summary power to compel the attendance of witnesses and the pro
duction o f evidence. The decision o f the board it is declared shall be
a settlement o f the matters referred to it, except that an appeal may
be taken to the State board of arbitration, in which case the latter
shall promptly hear the case and render a final decision thereon.
The New York act of 1886 was replaced in the following year by
another law, but the same local arbitration features appear in the lat
ter act and are still in force except for the omission o f the licensing of
the local board by a county judge and the reduction of the number o f
members on the board from five to three.
The provision for local arbitration in California is very brief,
specifying simply that if parties do not wish to submit a dispute to
the State board, each may choose an arbitrator and these two a third,
and the three shall constitute a board for the case and may exercise
the same powers as the State board.
A comparison o f the above-described laws in 13 States, which con
stitute the first group in the classification here made, shows the fol
lowing general features common to all o f them. First, the action con
templated by them is arbitration as distinguished from conciliation;
second, such arbitration is voluntary in character in that either the
reference o f disputes to it or the acceptance of decisions is entirely
voluntary for the parties; third, the arbitrating body specified is a
temporary board constituted for each dispute as it arises and com
posed o f equal numbers of members named (except in Maryland) by
the parties, with an odd member (in Pennsylvania three other mem
bers) chosen (except in Maryland and Pennsylvania) by the others;
fourth, (save in California) the law confers upon such boards power
to compel the presence of witnesses and the production of evidence.
D is t r ic t or C o u n t y B oards E stab lish e d b y P r iv a t e P a r tie s .

The four statutes falling in the group of laws under this heading
are so nearly alike, being :in large part exactly the same, that the
earliest one, the so-called Wallace Act o f 1883 in Pennsylvania,

586

BULLETIN OF THE BUREAU OF LABOR.

plainly served as model for the others. A description o f this, with
notation of the variation of the others from it, will suffice for all,
therefore.
The Pennsylvania law o f A pril 26, 1883, (a) which still stands on
the statute books, provides for “ voluntary tribunals ” in each o f the
State’s judicial districts. For the establishment o f such a tribunal
a license is to be obtained from the local court o f common pleas by
joint petition from at. least 50 work people and either 5 employers,
each employing not less than 10 work people, or 1 employer with 75
or more employees. Such a petition may be presented by either
party, but in that case the license can not be issued unless the other
party assents thereto within sixty days. The petition must contain
the names o f not less than 4 persons to compose the tribunal, one-half
from each side, with an umpire chosen by these members. Upon
receipt o f the petition the court is to issue a license authorizing the
tribunal and fixing a date for its first meeting. I f at the time a
petition is received a dispute exists which has already caused, or
threatens to cause, a suspension o f work, the court shall verify the
representative character o f the petitioners, and if it is found that they
do not represent a majority, or at least one-half, o f each party to the
dispute, the petition may in such case be denied.
The law requires that members o f such a tribunal shall be United
States citizens, shall have resided in the district for a year, and shall
have been engaged in the industry for two years i f work people, and
one year i f employers, and the latter must have at least 10 employees.
Members are to receive no compensation for their services. The ex
penses o f tribunals, except for offices, which are to be paid by the city
or county where located, are to be met by “ voluntary subscription.”
The tribunal is to choose its own officers, and has full power under
the law to compel the presence o f witnesses and the production of
evidence. It is to continue in existence for one year and take cogni
zance o f all disputes between the parties represented in the petition,
or any others who shall submit their disputes to it in writing.
The procedure before a tribunal may consist in (a) hearing and
decision by the tribunal (without the um pire); or (5) reference of
the case to a committee of the tribunal’s members equally represent
ing both parties, whose decision, i f unanimous, is final, but who other
wise shall refer the case back to the tribunal; or (e) reference of the
case to the umpire for final decision, which shall occur only when the
tribunal, after three meetings and full discussion, can not agree.
No counsel or paid agents may appear at any of the hearings. When
a case goes to the umpire the submission must be in writing signed
by the members o f the tribunal or the parties, and shall contain a

a Laws o f Pennsylvania, 1883, p. 15.

GOVERNMENT INDUSTRIAL ARBITRATION.

587

provision that the umpire’s award, 44after hearing, shall be final.”
The umpire is to be sworn to impartiality and to render his award
within ten days after the submission. Provision is made for the
enforcement o f umpires’ awards, but in this matter a slight incon
sistency appears in the statute. One section provides that the award
signed by the umpire 44may be made a matter o f record, by producing
the same within thirty days, with the submission in writing, to the
proper judge. I f he approves the same, he shall indorse his approval
thereon, and direct the same to be entered of record. When so
entered o f record it shall be final and conclusive, and the proper court
may, on motion o f anyone interested, enter judgment thereon, and
when the award is for a specific sum of money may issue final and
other process to enforce the same.” In another section, however, it
is expressly stipulated that the award 44shall in no case be binding
upon either employer or workmen, save as they may acquiesce or
agree therein after such award.” Whence it would appear that for
enforcement not only joint submission, but acquiescence in the award
by both parties as well, would be necessary. (®)
Two years after Pennsylvania, Ohio adopted the same system o f
local tribunals in the so-called Ryan Act of February 10, 1885. ( *6)
This law was in force until 1893, when it was repealed by an act
creating a State board o f arbitration. It copied the Pennsylvania
statute with but slight modifications in details, as follows: The
Ohio law specified all 44manufacturing, mechanical, or mining
industries ” as within its jurisdiction, required as signers o f the
petition for a license 40 work people and 4 employers, with not less
than 10 employees each, or one with at least 40, and omitted the
Pennsylvania provision for petition by one party, directed verifica
tion o f the character o f the petitioners, in case suspension o f work
existed or threatened, simply 44on motion,” stipulated no qualifica
tions for members o f tribunals, and, finally, made provision for the
enforcement o f awards by record in local courts, as in Pennsylvania,
only when the award was for a specific sum o f money, and no acqui
escence by the parties after the award was made was required.
In 1886 Iowa adopted the Ohio statute in toto with the variation
o f but a few words, the only change made in the system being a
reduction o f the number o f petitioners required for license to 20
workers and 4 employers, with not less than 5 employees, or one with
20 or over. The Iowa law was approved March 6, 1886,( c) and is
still in force.
o See also, supra, p. 582, for law providing for local arbitration with no perma, nent agency.
&Laws o f Ohio, vol. 82, p. 45.
c Acts of 1886, chap. 20.

588

BULLETIN OF THE BUREAU OF LABOR.

In the same year as Iowa, Kansas adopted the local tribunal
system by the act o f February 25, 1886, (a) which is the present law,
and which is somewhat condensed as compared with the statutes of
the other States in this group. It follows in general the* Ohio and
Iowa statutes, but with these points o f difference, viz., the number
o f petitioners required is reduced to 5 workmen and 2 employers;
the umpire, instead of being appointed by the members o f the tri
bunal, is to be appointed by the court issuing the license; members
are allowed compensation* per diem o f actual service, to be paid by
the county; counsel are not prohibited at hearings; there is no pro
vision for the settlement o f cases by special committee o f the tribunal;
the award o f the umpire must be made within five days o f the sub
mission instead o f ten; and, finally, the awards o f the tribunal are
enforceable in the same way as those of the umpire.
The characteristic features common to all in this second group o f
laws are : (1) Provision for permanent tribunals; (2) the establish
ment o f such tribunals by employers and employees acting jointly;
(3) licensing o f tribunals by local civil courts, and endowment o f
them with power to compel the presence o f witnesses and the pro
duction o f evidence; (4) procedure o f the nature o f arbitration vol
untary in character inasmuch as reference o f disputes is always
voluntary for both parties, even though provision is made for the
enforcement o f awards in certain cases.
I n t e r v e n t io n of S t a t e L abor C o m m is s io n e r s .

Five States have at some time provided for the settlement of
industrial disputes through the intervention o f commissioners of
bureaus o f labor statistics.
When Colorado established her bureau of labor statistics in 1887,
section 9 o f the law provided that in case o f any industrial dispute
involving an employer with 25 or more employees, involving or
threatening to involve a strike or lockout, the commissioner of the
bureau, when requested by the employer or 15 or more o f the work
people, should at once proceed to the place “ and diligently seek to
mediate between such employer and employees.” ( 5) In 1890 North
Dakota, in creating the office of commissioner o f agriculture and
labor, copied the law o f the Colorado bureau, including the above
section 9, which became section 7 in the North Dakota act.(c)
In Missouri somewhat more elaborate provision for action by the
commissioner o f labor statistics was made by a special act o f April
« Laws o f 1886, chap. 28.
»A cts of 1887, p. 62. This law was superseded, however, by the establish
ment of a State board in 1897 (Laws of 1897, chap. 2, amended by Laws of
1903, chap. 136).
c Acts of 1890, chap. 46. This law was repealed by the Revised Code o f 1895.

GOVERNMENT INDUSTRIAL ARBITRATION.

589

11, 1889.(a) Upon reliable information of a dispute which “ may
result in a strike or lockout ” the commissioner was to at once visit
the place and seek to mediate between the parties, “ if, in his discre
tion, it was necessary so to do.” I f the mediation of the commis
sioner proved fruitless he might then “ direct the formation o f a
board o f arbitration,” composed o f 2 employers and 2 employees
engaged in the same line o f industry, but not parties to the dispute,
with the commissioner as president. This board, the law declared,
should have power to summon and examine witnesses, was to inves
tigate the case and within three days thereafter render a decision,
which was to be made public. This decision, the act declared,
“ should be final, unless objections were made by either party within
five days thereafter; provided that the only effect o f the investiga
tion * * * shall be to give the facts leading to such dispute to
the public through an unbiased channel.” The law expressly stipu
lated that no board o f arbitration should be formed after suspension
o f work had occurred, except in case a strike or lockout had begun
before the commissioner could be notified when he “ might order the
formation o f a board o f arbitration upon resumption o f work.”
Under the Washington law of 1903 ( *6) the State labor commis
sioner has authority to intervene only upon application from an
employer or employee, party to the dispute, but when requested it
becomes his duty to promptly visit the locality, inquire into the causes
o f the controversy, and advise the parties what ought to be done by
each to settle their differences. I f such mediation fails to effect a
settlement the commissioner is to endeavor to persuade the parties to
submit the case to arbitration before a board composed o f three mem
bers, one named by the employers, one by the workers, and a third
chosen by these two, with the commissioner as chairman without the
privilege o f voting. The board, through the commissioner as chair
man, may issue subpoenas and administer oaths to witnesses, and the
law directs that any notice or process issued by the board shall be
served by any sheriff, coroner, or constable to whom it may be di
rected. Under the terms of the statute the board’s award is to “ be
final.”
I f the labor commissioner can not bring the parties to submit to
arbitration as above provided, it is his duty “ to request a sworn state
ment ” from each party as to the facts in the case and their reasons
for refusing arbitration, which statements are to be “ for public
use and shall be given publicity in such newspapers as desire to
use it.”
a Revised Statutes o f 1899, chap. 121, art. 2. This law was repealed and a
State board established in 1901 (Laws of 1901, p. 195, amended by Laws of 1903,
p. 218).
&Laws o f 1903, chap. 58.

590

BULLETIN OF THE BUREAU OF LABOR.

Somewhat similar to the Washington law, but more extensive in
its provisions, is the recent act o f 1904 in Maryland. ( a) This directs
that u upon information furnished by an employer * * * or by
a committee o f employees, or from any other reliable source,” that a,
difference exists which involves ten or more persons and which
threatens to result in a strike or lockout, the chief o f the bureau
o f industrial statistics, or one o f his subordinates deputized by
him, shall, if he consider it necessary, at once visit the scene o f the
dispute and seek to mediate between the parties.
I f such mediation proves unsuccessful, the chief, or his deputy,
may at his discretion endeavor to secure the consent o f the parties
to arbitration before a board of three persons, employers and
employees each to choose one member, who shall be from the same
industry or trade affected but no parties to the dispute, and these
two to name the third, who shall be president. I f the two can not
agree upon the other member, then the chief, or his deputy, as
the case may be, shall act as the third arbitrator. With reference
to the powers and procedure o f the board the statute prescribes
only that “ the president o f said board * * * shall have power
to summon witnesses, enforce their attendance, and administer oaths
and hear and determine the matter in dispute, and within three
days after the investigation render a decision thereon,” a copy o f
which shall be furnished each party and shall be final. While speci
fying thus a mode o f arbitration, the law stipulates that the parties
may agree upon some other method if they choose, and the latter
shall also be valid.
Whenever the chief or his deputy is unable to effect a settlement
by mediation and the parties will not submit to arbitration, then
the chief or his deputy is directed “ to thoroughly investigate the
cause o f the dispute,” for which purpose he “ shall have the authority
to summon both parties to appear before him and take their state
ments in writing and under oath, and having^ ascertained which
party is, in his judgment, mainly responsible and blameworthy for
the continuance o f the controversy or dispute, shall publish a report,
in some daily newspaper, assigning such responsibility or blame
over his official signature.” To secure the necessary evidence in such
an investigation the chief (or deputy) is given u power to administer
oaths, to issue subpoenas for the attendance o f witnesses, and to
enforce the attendance o f witnesses, production o f papers and books
to the same extent that power is possessed by courts o f record or
judges in the State,” but it is directed that all information o f a per
sonal character or pertaining to the private business o f any party
must be treated as confidential.^)*&
Laws o f 1904, chap. 671.
&See also, supra, p. 581, for law providing for local arbitration.

GOVERNMENT INDUSTRIAL ARBITRATION.

591

Comparing the five statutes in this group it will be seen that the
field o f action opened to the commissioner in Colorado and North
Dakota is much narrower than in the other three States, being limited
to intervention at the request of at least one party and mediation
being the only purpose mentioned. The Washington law also speci
fies intervention only upon application from a party to the contro
versy, but both that law and those of Missouri and Maryland, which
permit the commissioner to intervene upon his own initiative as well
as upon request, make provision both for mediation and for arbitra
tion and, most notable of all, the two latest laws (Washington and
Maryland) go still further and provide for an authoritative investi
gation o f the dispute and public report by the commissioner in every
case in which his mediation has proved fruitless and the parties
refuse arbitration. The Maryland law, in fact, gives the commis
sioner o f labor in that State essentially the same powers and possible
courses o f action with reference to intervention in labor disputes as
are possessed by any o f the State boards of conciliation and arbitra
tion considered below.
Intervention by commissioners of labor statistics as a means o f set
tling labor disputes has been actually or virtually abandoned by
three (the three earliest) of the five States which have made trial of
it. North Dakota repealed her provision in 1895, Missouri substituted
for hers a State board of arbitration in 1901, and Colorado, though
the provision still stands on her statute books, practically displaced
it by the establishment of a State board in 1897.
S t a t e B oards of C o n c il ia t io n a n d A r b it r a t io n .

The distinguishing characteristic of the laws in this fourth group
is provision for a permanent board created and maintained by the
State for intervention in industrial disputes. This is the most com
mon form o f provision for the settlement o f such controversies in the
United States, no less than 17 States having adopted it.(a) A ll
o f the 17, it may be added, still retain the system, at least in law.
The first States to adopt this system were New York and Massa
chusetts in 1886, the former by an act approved May 18, the latter
by a law o f June 2. These two States are the sources from which the
other 15, except Indiana, and Idaho in her latest act, have drawn
nearly all the material for their laws. In fact, in every one o f the
latter are to be found verbatim transcriptions from the New York
and Massachusetts acts, made either directly or by the copying of
each other’s statutes, entire laws in some cases having been so cona While provision for local arbitration is to be found in nearly as many
States, 13 in all, that feature is in 10 o f these secondary to a State board system.
(Cf. supra, p. 584.)

592

BULLETIN OE THE BUREAU OF LABOR,

structed. With so many features common, therefore, to several or
all o f the States, the plan adopted for the following account o f the
laws in this group consists of a description o f all features (a) to be
found in them, with notation under each o f the States in which it
exists. The only exception to this method are the Indiana law, which
varies considerably from the others, and the present Idaho law ,(**&)
which follows the Indiana statute, these two being described sep
arately. The original laws have in several States been amended, and
where changes o f consequence have been made they are noted.
Otherwise reference is always to the statutes as in force on January 1,
1905. (o)

The name used to designate the board is in California, Louisiana,
Massachusetts, Minnesota, Montana, Ohio, and Wisconsin the board
o f arbitration and conciliation; in Connecticut, Missouri, and New
York it is the board o f mediation and arbitration; in Michigan, the
<*Except those providing for local arbitration, which have already been noted.
(Supra, p. 584.)
&The present Idaho law o f 1901 superseded one of 1897. Of this earlier law,
w’hieh is in the same class with those included in the general description below,
suffice it to say that it is precisely the same as the Massachusetts statute with
out the provisions for expert assistants and the amendments o f 1902 and 1904.
<>The list o f acts and amendments in the several States, except Idaho and
Indiana, arranged chronologically, is as follow s:
New Y ork : Laws o f 1886, chap. 410 (May 18) ; amended by Laws of 1887,
chap. 63; became Art. X o f the labor law, Laws of 1897, chap. 415; amended by
Laws o f 1901, chap. 9.
Massachusetts: Acts o f 1886, chap. 263 (June 2) ; amended by Statutes o f
1887, chap. 269; Statutes o f 1888, chap. 261; Statutes o f 1890, chap. 385; Stat
utes o f 1892, chap. 382; became chap. 106 o f Revised Laws o f 1901; amended by
Statutes o f 1902, chap. 446, and Statutes o f 1904, chaps. 313, 399.
Montana: Statutes of 1887, p. 614; became Chap. X IX of Title VI of Pt. I l l
of the Political Code o f 1895.
Michigan: Public Acts o f 1889, No. 238, being secs. 559-568 o f the Compiled
Laws o f 1897, as amended by Acts o f 1903, No. 69.
C alifornia: Laws o f 1891, chap. 51.
New Jersey: Public Laws of 1892, chap. 137; amended by Public Laws of
1895, chap. 341.
Ohio: Laws o f 1893, p. 83; amended by Laws of 1894, p. 373, and Laws of
1896, p. 324; Statutes o f 1902, sec. 4364-90.
Louisiana: Laws o f 1894, No. 139.
Wisconsin: Laws o f 1895, chap. 364 (April 19) ; amended by Laws o f 1897,
chap. 258.
Minnesota: Laws o f 1895, chap. 170 (April 25).
Connecticut: Laws o f 1895, chap. 239 (June 28).
Illinois: Laws o f 1895, special session, p. 5 ; Statutes o f 1896, chap. 48, sec. 8 ;
amended by Laws of 1899, p. 75, 1901, p. 90, and 1903, p. 84.
U tah: Laws o f 1896, chap. 62; superseded by Laws o f 1901, chap. 68.
Colorado: Laws o f 1897, chap. 2 ; amended by Laws o f 1903, chap. 136.
Missouri: Laws of 1901, p. 195, as amended by Laws of 1903, p. 218.

GOVERNMENT INDUSTRIAL ARBITRATION,

593

court o f mediation and arbitration; in Colorado, Illinois, and New
Jersey, simply the board o f arbitration; while Utah uses the longer
title o f board o f labor, conciliation, and arbitration.
Except in New York, the members o f the board are appointed by
the governor in all the States, and must be confirmed by the senate
in all save California, Colorado, and Wisconsin. Similar appoint
ment and confirmation were true for New York until 1901, when the
law consolidating the former bureau of labor statistics, State factory
inspector’s office, and board of mediation and arbitration into the
department o f labor delegated the powers and duties of the old board
to the commissioner of labor (the head of the department, appointed
by the governor) and his two deputies (appointed by the commis
sioner) as a board, whereby it results that one member of the board
is appointed l?y the governor and the other two by the first. (a)
The number o f members on the board is three in all the States
except Louisiana, where it is five, with terms of one year in Cali
fornia, two years in Colorado, Connecticut, Minnesota, Montana, and
Wisconsin, three years in Illinois, Massachusetts, Michigan, Missouri,
New Jersey, and Ohio, and four years in Louisiana, New York, and
Utah. (*)
In the composition of boards many of the States lay down certain
restrictions. California, Colorado, Illinois, Louisiana, Massachusetts,
Minnesota^ Missouri, Montana, Ohio, Utah, and Wisconsin require
that the employing class and the labor class shall each be represented
by one member (in Louisiana two members) upon the board, and
California, Colorado, Louisiana, Minnesota, Montana, Utah, and Wis
consin further specify that the odd member shall be a “ disinterested ”
person as regards the two industrial classes. Illinois and Utah pro
hibit the appointment of more than two members from the same
political party. Connecticut requires that one member each shall be
chosen from the two largest political parties in the State and the
third from a labor organization, this being identical with the require
ment in New York prior to the merging of the board in the new
department o f labor in 1901, which practically annulled the restric-*&
<*The consolidation law created one department with three bureaus, corre
sponding to the three offices absorbed, the entire department being under the
general direction of the commissioner of labor, with the first deputy in special
charge of the bureau of factory inspection, the second deputy in special charge
of the bureau of labor statistics, and the commissioner himself in special charge
of the bureau of mediation and arbitration, the three officials together to be a
board for the purposes o f the old board of mediation and arbitration.
&The first New Jersey law made the term five years and the original laws of
Massachusetts and New York made it one year. From 1887 to 1901 the term
was three years in New York, but was virtually changed to four by the consoli
dation of 1901.
50—No. 60—05

-----14

594

BULLETIN OF THE BUREAU OF LABOR.

tion as to politics and representation of organized labor on the board.
New Jersey requires only that one member of the board shall be from
a labor organization, while no limitation as to the make-up of the
board appears in Michigan.
In Colorado, Louisiana, Massachusetts, Minnesota, Ohio, and W is
consin the odd member o f the board is to be recommended by the other
two, though if no recommendations be made within a specified time
the appointment shall be made directly by the governor. In Louisi
ana it is also provided that the two members representing employers
are to be recommended by “ some association or board representing
employers ” and the two labor representatives are to be recommended
by “ the various labor organizations,” though here again, failing such
nomination, the appointments are to be made direct.
A t present Colorado, Illinois, Massachusetts, New Jersey, and
New York provide annual salaries for the members. A ll the others
(and the same was true o f the first laws in Massachusetts, New Jersey,
and New York) pay only a per diem compensation for actual and
necessary services. Traveling and other necessary expenses, in addi
tion to compensation of members, are allowed in all the States except
Michigan and Minnesota. The entire cost of the boards is everywhere
borne by the State save in Utah, where the per diem pay of members
is to be paid in each case by the parties in dispute in such proportion
as the board shall decide, other expenses being paid out of the State
treasury. (a)
A ll o f the States except Minnesota require an oath o f office o f mem
bers of the board. A ll boards must make report o f their work to the
governor or State legislature—biennially in Louisiana, Missouri, and
Wisconsin, annually in the other States.
W ith the single exception o f California, whose statute says nothing
upon the subject, all the States confer some authority upon their
boards for the purpose of securing evidence. In Colorado, Connect
icut, Illinois, Michigan, Missouri, New Jersey, New York, and
Utah the boards have authority to issue subpoenas, administer oaths,
and call for books and papers generally. In Louisiana, Massachu
setts, Montana, and Wisconsin the power to summon is limited to
operatives in the department of business affected by the dispute and
persons who keep the records of wages paid, and only such wage
records in the way of documents may be called for. In Minnesota
only the persons keeping records o f wages may be summoned and
only such records may be called for, while in Ohio any person may be
subpoenaed, but only wage records may be called for. In eight States
only do the laws go any further than a simple declaration that the
boards shall have such authority. The Louisiana statute adds a
« Before the revision o f 1901 in Utah, traveling expenses were also to be paid
by the parties.

GOVERNMENT INDUSTRIAL ARBITRATION.

595

clause affirming that the board “ shall have the right to compel the
attendance o f witnesses or the production o f papers,” but by what
means is not specified. Michigan and New Jersey stipulate that their
boards shall have the same authority to compel the attendance of
witnesses and the production o f documents “ as is possessed by the
courts o f record or judges ” in the State. (°)
In Ohio sheriffs, constables, or police officers are to serve subpoenas
and notices for the board. But the most specific powers for securing
evidence appear in Colorado, Illinois, Missouri, and Utah, whose
provisions therefor are all very similar, that of Utah dating from
its first law o f 1896, that o f Illinois from an amendment o f 1899, and
those o f Colorado and Missouri from amendments of 1903. These
provisions permit the boards to invoke the aid o f the civil courts (dis
trict or county courts in Colorado, circuit or county courts in Illinois,
circuit courts in Missouri, and district courts in Utah) in case o f
refusal o f witnesses to obey the board’s subpoenas, and such courts
“ shall, upon application by the board,” in Colorado, Illinois, and
Missouri, “ may ” in Utah, issue orders requiring witnesses to appear
before the board and give testimony or produce books and papers,
and the court may punish for contempt in such cases as in case of
refusal to obey its own processes. (**&) In addition to this, the Mis
souri provision goes a step further, and makes it a misdemeanor for
any person to willfully neglect or refuse to obey the process or sub
poena o f the board, for which such person is liable to arraignment in
any court o f competent jurisdiction, and on conviction shall be pun
ished by fine o f not less than $20 nor more than $500, or by imprison
ment not exceeding thirty days, or both. The Missouri provision for
enabling the board to compel the presence and testimony o f witnesses
through the power of the courts to punish for contempt has, how
ever, been declared unconstitutional by the supreme court of that
State in a decision rendered June 2, 1904. (c) Certain employers
had declined to obey a subpoena of. the board, whereupon the latter
obtained an attachment from a circuit judge to compel their presence.
When brought before the board they made certain objections when
the evidence o f the trade unions involved in the dispute was being
heard, and when the board ruled against them they withdrew, alleg
ing violation o f their constitutional rights. The board then secured
from the circuit court the issuance o f citation to the said employers
to show cause why they should not be punished for contempt, where
upon the employers in question applied to the supreme court for a
« Such was the provision also in Colorado and Missouri until the amendments
of 1903.
&Cf. similar provisions in Indiana and Idaho, infra, pp. G04, 605.
c In the case of State ex rel Haughey et al v . Ryan et al. (81 S. W., 425, or
182 Mo., 349).

596

BULLETIN OF THE BUREAU OF LABOR.

writ against the circuit judge and the board to prohibit the con
tempt proceedings. The supreme court unanimously granted the
writ, holding that the amendment of 1903, “ in so far as it attempts
to require the circuit court to use its power to punish for contempt,
to compel witnesses to attend and testify before the board, is an un
warranted invasion o f the judicial power conferred exclusively on
the courts in section 1, article 6, o f the constitution o f Missouri.5’
The grounds for this decision may be summarized by the following
extracts from i t :
The power to punish for contempt is essentially a judicial power,
and except in the limited degree in which it inheres in legislative
bodies it can be exercised only by a tribunal exercising judicial
functions. * * * A ll the judicial power in this State is by our
constitution vested in certain courts therein named. The general
assembly has no authority to create any other tribunal and invest it
with judicial power. * * * This board o f mediation and arbi
tration is not a court; it can not exercise any power that is purely
judicial in its character. * * * The power to punish for con
tempt is not given to the circuit court for the purpose o f maintaining
the authority of any tribunal but itself, especially not to maintain the
authority o f a board upon whom it would be unconstitutional to con
fer such a power. * * * The power to punish for contempt is
not a power conferred on the court by the legislature, but is inherent
in the court for one purpose only— that is, to maintain its own au
thority.
This decision refers only to the amendment of 1903, but as expressly
intimated in it the same grounds o f unconstitutionality applied to
the earlier provision, which simply declared that the board itself
should have power to punish for contempt. This Missouri decision
is, therefore, especially interesting, as it throws out both the pro
visions for enabling the board to enforce its summons which the
Missouri law has had in common with several other States, as above
noted. It is to be observed, however, that the decision does not
nullify the special provision in the Missouri statute which makes a
misdemeanor of refusal to obey the board’s processes, for it distinctly
says:
It is not disputed that in a case where a board or a committee o f
a legislative body has the lawful authority to summons witnesses
the legislature may enact that the refusal o f a witness to appear and
testify shall be a misdemeanor, and that upon conviction thereof in
a court o f competent jurisdiction he may be punished by fine and
imprisonment.
Aside from the exclusion from arbitration by the board of ques
tions which may be the subject of a civil action (a) in Illinois, Lou
isiana, Massachusetts, Montana, Ohio, and Wisconsin the only gen
eral limitations upon the jurisdiction of boards consist in restrictions
o The same exclusion held in Utah until the amendment o f 1901.

GOVERNMENT INDUSTRIAL ARBITRATION.

597

to disputes involving establishments with not less than 25 employees
in Massachusetts and Wisconsin, not less than 20 in Louisiana and
Montana, and not less than 10 in Minnesota and Utah; to disputes
involving 25 employees or more in Illinois, 10 or more work people
in Missouri, and to disputes 44which, if not arbitrated, would involve
a strike or lockout ” in California.
Three kinds o f action may be taken by State boards when inter
vening in industrial disputes: (a) Mediation or conciliation; (&)
arbitration, and ( c) investigation for the purpose o f public report as
to the causes o f disputes or responsibility for them. The last-men
tioned may be conveniently referred to as 44authoritative ” or 44pub
lic ” investigation. The California law provides for arbitration and
authoritative investigation only, the law of Utah for conciliation and
arbitration, but in all the other States all three courses are provided
fo r .(a)
A ll the statutes which provide for mediation and conciliation spec
ify sufch action only for cases o f strike or lockout, either actual or
threatened, ( 6) but for such cases it is made the duty o f the board
to intervene upon knowledge o f the disputes. Wisconsin directs
mediation only when the strike or lockout 44threatens to or does in
volve the business interests of a city, village, or town.” Two general
directions as to procedure for mediation and conciliation appear in
the statutes. In Colorado, Connecticut, Michigan, Missouri, New
Jersey, and New York the board is directed to visit the locality of
the dispute and endeavor to bring the parties to an amicable agree
ment. In the other States (Illinois, Louisiana, Massachusetts, Min
nesota, Montana, Ohio, Utah, and Wisconsin) the board is simply
44to put itself in communication with ” the parties, and is to endeavor
either to arrange an amicable settlement or to induce the parties to
submit to arbitration before a local or the State board. In Massa
chusetts, Montana, and Wisconsin the effort to persuade the parties
to adopt arbitration is directed as an alternative only on the express
condition that a strike or lockout has not actually occurred or is not
continuing.*
a This is true of the statutes now in force. The first Massachusetts, Montana,
and New York laws provided for arbitration only. The first amendments in
Massachusetts and New York (1887) incorporated the other two courses.
Montana adopted them in 1895. In Illinois conciliation and arbitration only
were specified until an amendment of 1901 added authoritative investigation.
* &Mediation is directed in Illinois, Missouri, and Utah simply when strike or
lockout is “ seriously t h r e a t e n e d in the other States when strike or lockout
threatens or occurs. By an amendment in the Wisconsin law in 1897 it was
intended to empower the board to mediate in any dispute between employer
and employed. As the amendment stands in the law, however, such authority
is given only in connection with the procedure for arbitration. (Cf. infra,
p. 599.)

598

BULLETIN OF THE BUREAU OF LABOR.

With the duty o f initiating proceedings for mediation and con
ciliation laid upon the boards, prompt information of the existence
of industrial disputes becomes a matter o f importance. As a means
thereto the statutes o f Illinois ,(a) Louisiana, Massachusetts/*6)
M ich ig a n //) Montana,(d) Ohio, U ta h /6) and Wisconsin require cer
tain local authorities to immediately notify the board of any strike
or lockout, threatened or existing, which comes to their knowledge.
Such duty is laid upon mayors of cities in all of these States. It
devolves also upon presidents of towns in Illinois, town or village
boards in Massachusetts and Wisconsin, supervisors of townships
and village presidents in Michigan, county commissioners in Mon
tana, sheriffs o f counties in Utah, probate judges in Ohio, and dis
trict court judges in Louisiana. Illinois also has a unique provision
requiring that similar notice shall be given to the board by presidents
o f labor organizations in case o f strike or lockout involving any of
their members. In none o f these States does the board’s duty of
intervention depend upon notice from such sources. In all the ^States
that duty exists simply upon knowledge of a dispute without condi
tion as to its source save in Colorado, where the law directs media
tion only upon written notice to the board from one of the parties
to the dispute, from the mayor or clerk of a city or town, or from the
local justice of the peace, although the law does not require any such
notice from any of them. The Massachusetts law by amendment of
1902 expressly gives the employer or employees concerned in a strike
-or lockout the privilege of notifying the board of the dispute, and
thereby laying the duty of intervention upon the board.
Provision for the arbitration o f disputes by the board is a feature
common to all the laws governing State boards. For such arbitration
the statutes o f Colorado, Connecticut, Michigan, Missouri, New Jer
sey, New York, and U t a h /) prescribe simply a full hearing and the
rendering o f a decision upon the question in dispute. Utah also
directs that the decision shall be published. In the other States
(California, Illinois, Louisiana, Massachusetts, Minnesota, Montana,
Ohio, and Wisconsin) it is directed that the board shall hear the case,
advise the parties what ought to be done by each to effect a settlement,
and render a decision, which decision shall be made public. In
Louisiana and Ohio it is expressly stipulated that the decision is to
be rendered only where the board’s advice as to an adjustment has not
a By amendment of 1899.
&By amendment o f 1887.
o By amendment o f 1903.
d By amendment of 1895.
e By amendment of 1901.
f This is true for Utah since 1901.
that of Massachusetts.

Prior to that year the Utah law was like

GOVERNMENT INDUSTRIAL ARBITRATION.

599

been accepted. A ll the laws direct that the boards shall visit the
locality o f a dispute in arbitration proceedings, except in California,
where such visit shall be made “ if necessary,” and in New York and
Utah, whose laws since 1897 and 1901, respectively, say nothing on
this point, though before those years they directed visitation. Arbi
tration decisions may be rendered by either unanimous or majority
vote o f the board in Colorado, Connecticut, Michigan, Missouri, New
Jersey, and New York. The laws of other States say only that the
decision shall be by “ the board.”
When properly applied to it is in all the States made the duty of
the board to act as arbitrator. In Colorado, Connecticut, Michigan,
New Jersey, New Y ork ,(a) and (since 1901)Utah application by both
the parties in dispute is required. In all the other States the board
is directed to carry out the procedure for arbitration upon applica
tion by one party only, and the Wisconsin law as amended in 1897
really provides that the board may so act “ without any application
therefor.” ( &) Except in Minnesota and Missouri, it is the evident
intent o f all the laws that arbitration by the State board shall be had
only before a strike or lockout has occurred or if afterwards only
upon resumption o f work. Since its amendment in 1901 the Utah
law is most specific on this point, definitely requiring that applica
tion to the board must precede any lockout or strike or that work must
be resumed if the board is to arbitrate. In all the other States,
outside o f Minnesota and Missouri, it is required that the written
application for arbitration shall contain a promise to continue in busi
ness or at work until the board’s decision is rendered. California,
Louisiana, Massachusetts, Montana, Ohio, and Wisconsin further
stipulate that if this promise be broken by either party the arbitration
shall not proceed except upon consent o f the other party—a provision
which, although permitting exceptions thereto, emphasizes the gen
eral principle o f nonsuspension o f work during arbitration before the
boards. In Minnesota and Missouri there is nothing in the laws to
hinder arbitration as well during as before or after strike or lockout.
In the matter o f arbitration Massachusetts made a noteworthy addi
tion to her law by two amendments, o f 1890 and 1892. The earlier
one provided that each party to the dispute might nominate a person
whom the board might appoint as an “ expert assistant,” who “ shall
be skilled in and conversant with the business or trade concerning
which the dispute has arisen,” and whose duty it is, at the direction
« During its first year the New York law provided arbitration by the State
board only for cases appealed from local arbitration boards. This limitation
was removed by the amendment of 1887, however.
» This amendment of the Wisconsin law was made with intent to enlarge the
board’s authority to intervene in disputes without application from the parties,
but the clause was actually added to the section dealing with arbitration.

600

BULLETIN OF THE BUREAU OF LABOR.

o f the board, “ to obtain and report to the board information concern
ing the wages paid and the methods and grades o f work prevailing in
manufacturing establishments in the Commonwealth o f a character
similar to that in which the matters in dispute have arisen.” The
assistants are to be sworn and to be paid for their services, and the
board may appoint others in addition to those nominated by the par
ties i f it thinks fit. The amendment of 1892 went still further and
provided that the board “ shall ” appoint such assistants when nomi
nated by the parties, and that they may submit to the board at any
time before the decision “ any facts^ advice, argument, or suggestions
which they may deem applicable to the case.” It was further speci
fied that where such an assistant has acted in a case no decision o f the
board is to be announced until after he has been given an opportunity
for final conference with the board concerning the case. A further
change as to the appointment o f such assistants was made by a 1904
amendment, so that now it is directed that each party “ may ” nomi
nate “ fit persons ” for the purpose and the board “ may ” appoint one
from those so nominated by each party. The only other States to
follow this plan are Montana, which in 1895 copied the Massachusetts
amendment o f 1890, and Wisconsin, which simply provides that the
board may appoint two expert assistants, one to be nominated by each
side, or a larger number if the board thinks fit, who shall be sworn to a
faithful discharge o f their duties.
Concerning means for making the decision of boards effective,
the statutes o f Connecticut, Louisiana, and Minnesota are silent.
The laws o f Michigan, New Jersey, New York, and U tah(a) contain
nothing except a requirement that the application for arbitration,
which in those States must be joint, shall include an agreement to
abide by the decision. ( *6) California, Massachusetts, Montana, and
Wisconsin simply declare that decisions shall be binding upon the
parties who join in the application for six months or until the expira
tion o f sixty(c) days’ notice by either party o f intention to be no
longer bound. Four States only— Colorado, Illinois, Missouri, and
Ohio—make provision for the enforcement of awards. By amend
ment o f 1894 Ohio provided that when the application for arbitration
is made jointly by the parties this application may stipulate to what
extent the decision is to be binding, whereupon “ such decision to
such extent may be made and enforced as a rule o f court in the court
« Before 1901 such promise was not required in Utah, but decisions were
declared ^binding until the end o f ninety days’ notice to the contrary by either
party.
&This was also true o f the Illinois law prior to the amendment of 1899, and
o f the Colorado law before the 1903 amendment.
c California adds “ or any time agreed upon by the parties.”

GOVERNMENT INDUSTRIAL ARBITRATION.

601

o f common pleas of the county from which such joint application
comes, as upon a statutory award.” In Illinois, under an amendment
o f 1899, (a) where both parties join in an application for arbitration
any person who was a party thereto may present a petition to the
circuit court o f the county where the hearing was had showing that
the decision has been violated and by whom and in what respect.
The court is thereupon to grant a rule against the party so charged
to show cause why the decision has not been obeyed. Upon return
to this rule the court is to hear and determine the questions presented
and make such order, directed to the parties before him in personam,
as shall give effect to the award. Disobedience to such order is to
be deemed contempt o f court and may be punished accordingly,
except that in no case may imprisonment be resorted to. The Mis
souri law provides that when application for arbitration is mutual, or
both parties have agreed to submit to the decision, the board’s award
shall be final and binding. It shall also be binding upon both parties
even when one refuses to accept arbitration, unless exceptions are filed
with the board’s clerk within five days after the award is rendered.
When the award is binding under the above conditions any “ em
ployer, employer’s agent, employee, or authorized committee of
employees ” who shall violate its conditions “ shall be deemed guilty
o f a misdemeanor, and upon conviction thereof in any court o f com
petent jurisdiction shall be punished by a fine of not less than fifty
nor more than one hundred dollars, or by imprisonment in jail not
exceeding six months, or by both such fine and imprisonment.” Colo
rado in her amendment o f 1903 copied verbatim the above Illinois pro
vision for enforcement, with the single change o f qualifying the
prohibition o f imprisonment for disobedience to the court’s order, so
that such punishment is forbidden “ except in cases of willful and
contumacious disobedience.” ( *6) The Colorado amendment also makes
the period during which decisions shall be binding on the parties who
joined in the application for arbitration one year unconditionally
instead o f six months, with provision for notice o f termination as in
Illinois.
It is to be observed that none o f these provisions relative to the
enforcement o f awards amounts to compulsory arbitration. For in
all four States the compulsion provided either can be applied only
when both parties have voluntarily agreed to the arbitration or (in
Missouri) it can be applied upon a party who did not accept the arbi
tration only when that party has voluntarily acquiesced in the award.
a This Illinois provision for enforcement is the same as that in Indiana.
infra, p. 604.)
&On this point the Colorado amendment follows the Indiana law.

(Of.

602

BULLETIN OF THE BUREAU OF LABOR.

It may also be noted that in those States without enforcement pro
visions all o f the laws which declare that awards shall be binding limit
such declaration to those parties who voluntarily accept the arbitra
tion by joining in the application therefor.
Investigation o f disputes, as distinct from conciliation or arbitra
tion proceedings, is provided for in all o f the States except Utah.
The laws of Colorado, Connecticut, Michigan, Missouri, New Jersey,
and New York specify for such an authoritative investigation simply
an inquiry into the causes o f the dispute, but the statutes o f Cali
fornia, Louisiana, Massachusetts, Minnesota, Montana, Ohio, and
Wisconsin mention both the determination o f causes and the fixing
o f responsibility for disputes as the object o f the examination. In
Illinois, whose provision for investigation was added in 1901, “ all
facts bearing upon ” the dispute are to be investigated. In Colorado,
Connecticut,. New Jersey, and Michigan nothing is said concerning
a report o f the board’s investigations, but in all o f the other States (a)
there is provision for a report o f the board’s findings and, except in
New York, for publication of the same. In Illinois, Missouri, and
New York such report is to contain both findings of fact and rec
ommendations by the board for a settlement of the questions in dis
pute between the parties. In all the other States the laws simply
call for the board’s findings as to the causes of the dispute and, where
it is mentioned as within the scope o f the investigation, responsibility
for the dispute’s existence.
Authority to conduct investigation o f disputes is limited to cases
o f actual or threatened strike or lockout in all o f the States save
California, where it extends to any “ complaints o f grievances ” sub
mitted to the board by employers or employees. In Wisconsin it is
further restricted to probable or existing strike or lockout “ which
threatens to or does involve the business interssts o f a city, village, or
town.” In Illinois the authority is even more limited, extending
only to cases o f existing strike or lockout “ wherein, in the judgment
o f a majority o f said board, the general public shall appear likely to
suffer injury or inconvenience with respect to food, fuel, or light, or
the means o f communication or transportation, or in any other
respect,” and in which conciliation efforts have failed and the parties
refuse to submit to arbitration before the State board. In connec
tion with this last-mentioned restriction in Illinois, it may be noted
that the laws o f all the other States except California, although c o n
taining no definite limitation to that effect, manifestly assume that
investigations will be undertaken only after conciliation efforts have
failed, the provision for investigation always appearing in the same
section with and immediately following the directions for concilia
tion.

In New York only since 1897.

GOVERNMENT INDUSTRIAL ARBITRATION.

603

The making o f investigations and publication o f reports thereon
are both entirely optional with the boards in all o f the States except
California, Louisiana, Massachusetts, Missouri, and Ohio. In Cali
fornia investigation is provided for only upon request from employ
ers or employees, but such an application makes it obligatory upon
the board, and a report must be published. In Louisiana both in
vestigation and report are required in all cases where the board
intervenes for conciliation purposes, the failure of the latter being
implied. In Massachusetts, by an amendment of 1902, the investiga
tion became obligatory as in Louisiana, but the report is optional.
A further amendment o f 1904 in Massachusetts provides that the
board “ shall, upon the request o f the governor, investigate and
report upon a controversy if in his opinion it seriously affects or
threatens seriously to affect the public welfare.” In Missouri the
investigation and report are both obligatory, but are expressly con
ditioned upon failure of conciliation efforts. In Ohio the report is
always optional and the investigation also, except that when both
conciliation and arbitration have failed because of the opposition o f
one party, an investigation must be made if the other party re
quests it.
The State agency for intervention in labor disputes in Indiana
differs considerably from the State boards above described. It is
styled a labor commission and was established by a law o f March 4,
1897,( a) since amended by act of February 28, 1899.( *6) It may be
said o f the Indiana statute in general that it is more detailed in its
provisions than similar laws in other States. The commission con
sists o f two members appointed for terms of fou r(c) years by the
governor, with confirmation by the senate. One must have been for
at least ten years an employer, the other for an equal period an em
ployee; both must be not less than forty years old, and they must
not be members o f the same political party. The commisioners re
ceive annual salaries under the present law, a change from per diem
compensation for time of actual service having been made in 1899.
Provision is made for conciliation, arbitration, and authoritative
investigation by the commission. For the first the commission acts
alone, and is directed whenever any “ strike, lockout, boycott, or other
labor complication ” (d) comes to its knowledge, to proceed at once
to the place and offer its services as mediator. I f no settlement is
thus reached, they shall seek to induce the parties to submit to arbi
tration. It is also expressly provided that “ any employer and his
« Laws of 1897, chap. 88.
6 Laws o f 1899, chap. 228.
0 Formerly two years under the law o f 1897.
* In the 1897 law this direction applied only to disputes affecting 50 or more
employees, but this limitation was dropped in 1899.

604

BULLETIN OF THE BUREAU OF LABOR.

employees, between whom differences exist which have not resulted
in any open rupture or strike, may o f their own motion apply to the
labor commission for arbitration. ” (a)
F or arbitration under the law there must be an agreement signed
by both parties, or their duly authorized representatives, and this
agreement has the effect o f an agreement to abide by the award.
The arbitrating body is composed o f the two labor commissioners
and the judge o f the circuit court o f the county in which the dispute
is, to whom may be added, at the desire of the parties, two others—one
appointed by each party. A ll the arbitrators must take an oath to
act impartially and render a just award. The circuit judge is the
presiding member of the board and as such may “ issue subpoenas for
witnesses who do not appear voluntarily, directed to the sheriff o f the
county, whose duty it shall be to serve the same without delay.” The
arbitration proceeding is to be informal in character, and a majority
vote o f the board is sufficient for a decision, which shall be served
upon each party and filed, together with the agreement for arbitra
tion, with the clerk o f the circuit court o f the county. When so filed
the award may be enforced precisely as has been described for Illi
nois,^) i. e., upon application from any party to the arbitration the
court may grant a rule against any person charged with infringement
o f the award to show cause for such disobedience, and upon return
thereto may make such order as shall give effect to the award and
may punish disobedience to such order as for contempt o f court,
which punishment may in Indiana, though not in Illinois, extend to
imprisonment in case o f “ willful and contumacious disobedience.”
This provision for enforcement, it should be noted, does not make
arbitration under the Indiana law compulsory in character, since
submission to it in the first instance is always voluntary for both
parties.
Whenever the parties to a dispute fail to come to an amicable agree
ment or to submit their differences to arbitration, within five days
after the first communication of the labor commission with them, it
becomes the commission’s duty to investigate immediately the facts
of the case. In such investigation the commission, if it so desires, shall
receive the assistance of the State’s attorney-general, either in person
or by deputy. The powers o f the commission to secure evidence are
larger for public investigations than for arbitration proceedings. In
case o f disobedience to its subpoena or refusal o f a witness to testify
in an investigation the circuit court o f the county, on application
from the commission, may grant a rule against the offending witness
to show cause for his disobedience or be judged in contempt, and thq

a in 1897 this provision was limited to employers with not less than 25
employees, but the act o f 1899 dropped this restriction.
fc Of. supra, p. 601.

GOVERNMENT INDUSTRIAL ARBITRATION.

605

court may exercise the same power in such a case as in the case o f its
own subpoena or testimony before itself. (a) The law permits any
employer called upon for evidence in an investigation to submit in
writing facts whose publication might be injurious to his business,
and such must be held by the commission as confidential. Upon the
completion o f an investigation the commission must immediately
present a condensed report of “ the facts disclosed thereby affecting
the merits o f the controversy ” to the governor of the State, who shall
at once authorize its publication unless he sees good reason to the
contrary.
Idaho has passed two entirely different laws for State intervention
in labor disputes, but neither was original with her. Her first stat
ute was the act o f March 20, 1897, (6) which simply copied verbatim
the Massachusetts statute then in force without that portion provid
ing for expert assistants in arbitration cases. In 1901 another system
wds substituted for that of Massachusetts, and this time Indiana fur
nished the model to be copied. The Idaho act(c) is almost in toto
the same, word for word, as the Indiana law o f 1897. O f the few
variations from the original but two demand mention, viz: First,
while the first Indiana law contained directions for conciliation pro
ceedings only for disputes involving 50 or more employees, the Idaho
law provides in addition that the commission may, if it thinks fit,
intervene in smaller disputes also; and, second, there is no provision
in Idaho requiring the governor, except for good reason to the con
trary, to make public the results of authoritative investigations by
the commission.
A statute which contained provision for the termination o f rail
road strikes, but which can scarcely be called legislation for industrial
arbitration or conciliation in the usual sense, was that which created
the Kansas Court of Visitation, and which, for the sake of complete
ness in the present review, may here be mentioned. This law was
passed in 1898 (chapter 28 of the laws of that year) and created a
court o f record, called the “ court of visitation,” composed o f a chief
judge and two associate judges. The function of this court was the
regulation o f railroad rates and operation in the interests of the gen
eral public. In order to protect the latter against interruption of
traffic by strikes, section 48 of the law provided in substance as
follow s:
In case o f a strike o f railroad employees which was obstructing
commerce or threatening the public tranquillity, upon affidavit thereof
the court was to cite the railroad company to appear and set forth
a Cf. similar provisions in Colorado, Illinois, Missouri, and Utah, supra, p. 595.
»T he 1897 act became law without the approval o f the governor. It was
repassed and approved by the executive February 18, 1899.
c Approved March 12, 1901.

606

BULLETIN OF THE BUREAU OF LABOR.

the strike’s “ extent, the cause or causes thereof, what conduct, if any,
of such corporation or its officers led to such strike, and the precise
point or points o f dispute between said corporation and its striking
employees.” After hearing the matter upon evidence if the court
found the company “ free from fault in the premises and the strike
unreasonable, the court shall so find, and the said proceedings shall
be dismissed; and thereupon, and upon public notice as ordered
by the court given o f such decision, it shall be unlawful for said
strikers, or any o f them, to interfere in any manner whatever, by
word or deed, with any other employees said corporation may employ
and set to work. But if the court shall find that the said corpo
ration has failed in its duty toward its employees, or any of them,
or has been unreasonable, tyrannical, oppressive, or unjust, and the
strike resulted therefrom, the court shall so find specifically, and
shall enter a decree commanding such corporation to proceed forth
with to perform its usual functions for the public convenience, and
to the usual extent and with the usual facilities, as before said strike
occurred; and if said decree shall not be implicitly obeyed, in full
and in good faith, the court may take charge o f said corporation’s
property and operate the same through a receiver or receivers ap
pointed by said court until the court shall be satisfied that said cor
poration is prepared to fully resume its functions; all costs to be
paid by said corporation.”
This peculiar provision for the termination of railroad strikes was
never put in use. In 1900 the entire statute was declared unconsti
tutional by the supreme court of Kansas on the ground that “ in
the powers conferred on that tribunal, legislative, judicial, and
administrative functions are commingled and interwoven in a manner
violative o f the constitutional requirement that the three great
departments o f government be kept separate and the powers and
duties o f each exercised independently of the others.” (The State v.
Johnson, 61 Kansas Reports, p. 803.)
RESULTS UNDER STATE LA W S.
L o cal A r b it r a t io n w i t h no P e r m a n e n t A g e n c y .

The laws in this group have all turned out to be practically dead
letters. The Maryland law of 1878, according to the chief of the
Maryland bureau of industrial statistics, in 1900 had “ never been
availed of.” The New Jersey acts o f 1880 and 1886 were never put
to practical use(°), and were repealed in 1892. In 1900 the chief
®Cf. Second Report Wisconsin Bureau of Labor and Industrial Statistics,
1885-86, p. 392, and First Report Colorado Bureau of Labor Statistics, 1887-88,
p. 174.

GOVERNMENT INDUSTRIAL ARBITRATION.

607

o f the Pennsylvania bureau of industrial statistics had “ no knowl
edge o f any effort to make use o f the act of 1893 ” in that State.
The nearest and, so far as appears, the only approach to practical
application o f the Pennsylvania law is reported by a former presi
dent o f the Amalgamated Association of Iron and Steel Workers,
who stated before the United States Industrial Commission that his
organization had on one occasion desired to invoke the law, but the
employers had refused to join in that course. (a) In Texas, five years
after the law o f 1895 was passed, neither the commissioner of agri
culture nor the State’s attorney-general had any knowledge that the
statute had ever been used.
O f the 10 States (*6) with laws for State boards which provide also
for local arbitration, in none of the reports of such boards is any
trace to be found that the latter provision was ever made use of
except in Massachusetts and Ohio. In the former State in 1887 two
decisions by local arbitration boards were filed with the State board,
as required by law, and one was filed in 1904, the dispute having
been settled by the award in each case.(°) Beyond these three cases,
however, such provision has been a dead letter in Massachusetts. In
Ohio the only indication o f practical use made of the provision for
local boards is to be found in the report of the State board for
1902 (<*), in which that board complains that it had happened that
local boards organized on its advice had not been able to secure any
pay from city or county authorities under the provision for payment
o f members o f local boards formed under the authority o f the law,
and the State board recommended that the law should be amended
so that members of local boards would be assured of payment by
county authorities upon proper certification by the State board. It
is not entirely clear, however, that the local boards referred to in
this Ohio report were boards formed specifically under the provision
of law therefor, and there is no reference elsewhere in the reports
o f the Ohio State board to any local boards having been formed
under the law, nor is there any mention of any decision of a local
board having been filed with the State board, as required by the law.
D is t r ic t or C o u n t y B oards E s tab lish ed b y P r iv a t e P a r t ie s .

Much the same verdict of failure as above must be pronounced
upon the second group of laws. In Pennsylvania alone was any
thing accomplished under this system. Under the Wallace Act of
« Report of United States Industrial Commission, Vol. X II, Testimony, p. 87.
&Cf. supra, p. 584.
cC f. Second Report o f Massachusetts Board o f Arbitration, 1887, pp. 74, 75,
and Nineteenth Report, 1904, p. 166.
Page 6

608

BULLETIN OF THE BUREAU OF LABOR.

1883 a tribunal for the coal trade in the fifth judicial district was
licensed on May 19,1883, composed of 5 representatives of the miners,
5 representatives o f the operators, and an umpire chosen by unani
mous vote o f the 10 members. This tribunal was established during
a strike and at once set about settling the dispute. Work was re
sumed immediately, on the understanding that the price for mining
to be fixed by the tribunal should date from the resumption o f work.
In order to secure a decision it was found necessary to refer to the
umpire, who fixed a price to be in force until October 1, 1883. This
award was “ apparently a disappointment to both sides,” but was
nevertheless accepted by both. In September the tribunal under
took to set the price for the next six months and again the umpire
was called upon. His decision, as in the first instance, was a com
promise between the demands of the two parties, though involving
some advance for the miners. It “ did not appear to be satisfactory
to all, but was accepted.” In March, 1884, the rate for the half year
to October 1, 1884, was to be set, and the tribunal, without the aid of
the umpire this time, decided upon a rate which was a reduction
from the two previous rates which it had fixed. 44To many miners
this action was unsatisfactory, although the price was generally ac
cepted.” TJnder the law a new tribunal was to be established every
year, but although the first ceased to exist in May, 1884, a new one
was not licensed until October of that year. To this the operators
returned four o f their former representatives, but the miners, appar
ently as a result o f the third award o f the first tribunal, chose new
men for all five places. This second tribunal decided that the price
last fixed by the first tribunal should continue in force indefinitely,
but that they would meet for the purpose o f considering changes in
the price whenever three of nine members so desired. (a) In January,
1885, the services o f the tribunal were invoked for the fourth time,
this time to decide upon a permanent sliding scale of wages for coal
mining. The question was finally referred to the umpire, who made
his award on February 11, 1885. ( *&) In this award it is remarked
that the tribunal had secured industrial peace for the trade in that
district since its establishment. Similar evidence of the success of
this tribunal up to 1885 is to be found in a statement by one o f the
miners’ representatives on the tribunal, made in December, 1884, that
the tribunal had “ done more good during the last twenty months for
o The above facts concerning the coal-trade tribunal to 1884 are given in a
letter by a member of the tribunal (an employer), written in 1884, and published
by the New South Wales commission on strikes (Report, 1891, Conciliation
Appendix D (4 ), p. 60), whence it was quoted by the British royal commission
on labor (Foreign Reports, Vol. I, p. 44).
6 A copy of this award is to be found in the Third Report o f the New York
State Bureau of Labor Statistics, 1885, p. 422.

GOVERNMENT INDUSTRIAL ARBITRATION.

609

the railroad miners and operators than it gets credit for doing.
There have been no strikes where there used to be every summer, last
ing from two to five months. There have been no i exiles’ made by
being *4*victim ized’ for taking active part in strikes to keep wages
up. The trade, though dull this year, has suffered none through
uncertainty, and contracts have been kept that properly belong to
the district.” (a) One valuable piece o f testimony concerning a
detail o f the system is given by the employing member o f the tri
bunal already quoted concerning its work up to 1885, who said:
Having been connected with all efforts here to settle differences be
tween employers and employees in'the coal trade by arbitration, I
would call your attention to one very valuable provision o f the W al
lace Act, one which I regard as essential to success, viz, the pro
vision that the umpire shall be chosen before any other steps are taken
except the choosing o f the members o f the tribunal proper. In all
previous attempts at arbitration in the coal trade the plan has been
to choose the representatives o f the two sides, who, if they could not
agree regarding the point at issue, were to choose the umpire to
decide. The result has been in every case that the arbitrators failed
to agree, and such a spirit o f distrust was engendered that they
would not agree upon an umpire; hence failure.
This two years’ successful work by the coal-trade tribunal for the
fifth, or Pittsburg, district appears to constitute the history o f the
Wallace Act so far as practical results are concerned. No evidence
has been found that anything further was ever done by that tribunal,
or that any other tribunal under the law was ever established.
A year after the Ryan Act o f 1885 in Ohio was passed, the bureau
o f labor statistics o f that State reported that “ no effort was made to
put its provisions into practical use, largely for the reason that com
pulsory arbitration is generally regarded as impracticable.” ( 6) No
use was ever made o f it subsequently, and the act was repealed in
1893 upon the creation o f a State board o f arbitration. The acts o f
Iowa and Kansas (1886) present the same record o f total failure,
neither having been put into practice. ( c) The Kansas commissioner
o f labor in 1900 expressed the opinion that the complicated machin
ery o f the law nullified it.
I n t e r v e n t io n b y S t a t e L abor C o m m is s io n e r s .

O f the five States in this group, North Dakota may be dismissed
with a word, 'since the provision o f law authorizing intervention by
the commissioner was in force there but a year (1890-91) and during
« Statement made in letter published by the New South W ales commission
on strikes, loc. cit., p. 61, and quoted by British royal commission on labor,
loc. c it
&Ninth Report o f the Ohio Bureau o f Labor Statistics, 1886, p. 241.
c A ccording to the commissioner o f labor in each o f these States in 1900.
50—No. 60—05 m----- 15

610

BULLETIN OP THE BUREAU OP LABOR.

that time there was no occasion for the commissioner to mediate. (•)
In Colorado the provision has never been stricken from the statute
book, but was naturally superseded by the act o f 1897 creating a
State board o f arbitration. Examining the reports o f the commis
sioner o f labor for evidence o f action taken by him in industrial
disputes the statement is found for the years 1895-96 that “ whereever difficulties o f any kind have occurred between employers and
employees your commissioner has invariably been called upon as a
mediator, and in nearly all instances his efforts have resulted in
a speedy and satisfactory adjustment o f all difficulties.” ^ ) The
“ difficulties ” referred to in this* general statement, however, must
be other than strikes or lockouts, inasmuch as the same report contains
accounts o f twelve strikes, in but one o f which is interposition by
the commissioner mentioned, and in that case his mediation was
unsuccessful. For the entire ten years from 1887, when the bureau
was created, to 1897, the reports give account o f 71 strikes in the
State, and in three only o f these is intervention by the commissioner
reported. In one case he interposed at the request o f the governor
o f the State, in one upon his own motion, and in the third “ by
request,” presumably o f one o f the parties. In none o f the three
disputes, however, did he succeed in effecting a settlement.
In Missouri considerably more appears to have been accomplished
under the provision for intervention by the commissioner o f labor
than in Colorado. It may be noted in passing that before the pro
vision o f 1889 gave him special authority therefor, the Missouri com
missioner o f labor statistics had on occasion intervened in labor
disputes, his ninth report for 1887 referring to “ active labor in the
attempt to settle disputes and differences peaceably between employ
ers and employees.” ( c) A summary made up from the reports o f the
commissioner for the eleven years, 1890 to 1900, gives the following
record o f results under the Missouri provision o f 1889:
In 1890, in accounts o f 9 strikes, in one only is action by the com
missioner noted, that consisting o f an investigation at the request o f
employees, which did not, however, settle the controversy. In 1891
20 strikes and 2 other disputes are described, but no notice o f action
by the commissioner appears. In 1892 15 strikes are noted, the com
missioner having intervened in one unsuccessfully. In 1893 19 dis
putes (17 strikes) are noticed, in 4 o f which there was intervention
by the commissioner, twice before and twice after suspension o f work
had occurred, resulting in a settlement in all 4 cases. In 1894 no
action is mentioned, though 6 strikes are reported. In 1895, 1896,
« Statement by the commissioner o f labor in 1900.
a Biennial R eport o f Colorado Bureau o f Labor Statistics, 1895-96, p. iv.
c Ninth Report, Missouri Bureau o f Labor Statistics and Inspection, 1887, p. 9.

GOVERNMENT INDUSTRIAL ARBITRATION.

611

and 1897 no disputes or interventions are reported. In 1898 no action
is reported for 6 strikes noted, but in 2 other disputes the commis
sioner intervened and settled 1 controversy. In 1899 no action is
mentioned, though 31 strikes are summarized in tabular form in the
report. In 1900 the only dispute described is the St. Louis street-car
strike, in which the commissioner endeavored to mediate, but with
no success. In recounting his experience in the last-mentioned dis
pute the commissioner alludes to “ our most inefficient law regarding
arbitration.” (a) Altogether, therefore, in the 11 reports out o f 105
strikes and 6 other controversies noted, action by the commissioner
is recorded in case o f 6 o f the former and 3 o f the latter, and was suc
cessful in 6 out o f the 9 cases. It would appear from the accounts
that the commissioner intervened in 4 cases o f his own motion, acting
in the other 5 upon request or complaint of the workingmen. Seven
o f the 9 disputes were in the mining industry, and in 4 o f these the
controversy concerned alleged violation o f labor laws. Finally, it may
be noted that in all cases the action consisted o f mediation only, and
the provision o f the law for the appointment o f boards o f arbitration
.by the commissioner ( b) was never put to use.
In addition to the above there should be noted a statement made by
the commissioner in 1900 that “ A great many lesser labor troubles,
such as disputes about wages, hours o f labor, union rules, etc., in the
city o f St. Louis, also in Kansas City, have been amicably adjusted by
this bureau during the past four years.” Nevertheless, the same com
missioner, speaking o f the law o f 1889 in general, declared it to be
u very indefinite, incomplete, and unsatisfactory, but is a little better
than none—is about all we can say for it.” So that notwithstanding
some substantial results attained through intervention by the com
missioner it is not surprising to find the 1889 provision abandoned
for a State board in 1901.
The provision in the State o f Washington for intervention by the
labor commissioner went into effect March 9, 1903, and the Fourth
Biennial Eeport o f the Bureau o f Labor (°) sets forth in full the
action taken by the commissioner in this field for the period to Jan
uary 1, 1905, or a year and ten months from the time the act took
effect. The commissioner intervened in 12 disputes during the entire
period, or in 6 each in the ten months o f 1903 and the year 1904.
Twice in each year employers requested the commissioner’s interven
tion, the work people being the applicants in the other cases. One
case in each o f the two years was a dispute in which intervention
occurred before stoppage o f work, and the commissioner effected a
settlement in both cases, so that no strike occurred. The other 10
cases were strikes or lockouts, and application for intervention was
« Report for 1900, p. 432.

&Cf. supra, p. 589.

0 Pages

67-111.

612

BULLETIN OP THE BUREAU OP LABOR,

made after the suspension o f work in all but 1. In 4 o f the strikes or
lockouts the commissioner’s intervention resulted in a settlement,
while in 6 (including the case o f intervention before stoppage of
work) his efforts were unsuccessful.
One o f the strikes was terminated by arbitration under the law at
the instance o f the commissioner, each side naming one member and
these two the third for an arbitration board o f three persons. In all
the other cases the intervention was in the nature o f conciliation.
One case is reported in which the commissioner endeavored to per
suade the employers to agree to the arbitration proposed by the work
people, and on the employers refusing he demanded and received for
publication a sworn statement o f their reasons for the refusal, as
directed by the law.
Summing up the two years’ record under the Washington provi
sion, there were 12 cases o f intervention by the commissioner, result
ing in 6 settlements (2 disputes without strike or lockout) and 6
failures.
The Maryland law o f 1904 for intervention by the commissioner o f
labor is as yet too recent to afford evidence as to its results in practice,
the annual report o f the bureau o f industrial statistics for the year
1904 stating that up to the time the report was presented (February
28,1905) the arbitration law “ had not been tested.”
S t a t e B oards op C o n c il ia t io n a n d A r b it r a t io n . (° )

Judged by results in practice, the 17 State boards provided for by
the laws in this group may be divided into two classes, the one includ
ing those which have been active relatively little or not at all; the
a Inform ation as to the work o f the State boards, so far as such have been
active, is to be found in their official reports. A t the same time it must be said
that these reports are almost without exception in such form as to necessitate
very laborious analysis and compilation in order to arrive at any general results
concerning the work o f boards. The plan universally follow ed in the reports
has been to present an account o f each controversy by itself in simple narrative
form , and, save in one Indiana report (1897-98), two Massachusetts reports
(1901 and 1902), one Ohio report (1898), and the New York reports after 1900,
no attempt has been made to summarize results or tabulate the essential facts
common to the individual cases. Further, in the accounts as given there is fre
quently lack o f precise statement as to the details o f action taken and results,
so that much is left to inference and interpretation in any attempt to analyze
cases fo r statistical purposes. The figures with reference to the work o f the
State boards in the follow ing pages, therefore, can be taken as only approximate.
Even if but roughly approximate, however, they are believed to be o f value as
the only means whereby a comprehensive general view o f the work o f boards
may be presented. It should be added that fo r the sake o f a uniform interpre
tation throughout the author has used everywhere only his own analysis o f the
individual cases as described in the reports, except fo r the New York board
since 1900.

GOVERNMENT INDUSTRIAL ARBITRATION.

613

other those with records o f some considerable activity ever since their
establishment. The former class includes the following 9 States:
California, Colorado, Connecticut, Idaho, Louisiana, Michigan, Min
nesota, Montana, and Utah.
CALIFORNIA.

A board was appointed under the California law o f 1891, three
months after the act was passed, but continued in existence for only
a year and never had a successor. (a) The Tenth Biennial Keport of
the California Bureau o f Labor Statistics, (*6) referring to the short
lived board o f 1901, states that “ there is no record o f any work ever
having been done by the board, or any report having been published
by it as to its work.”
COLORADO.

A board o f arbitration has been maintained in Colorado ever since
the passage o f the law of 1897. Just how much has been accom
plished by this board can not be stated from the information avail
able,^) but results have certainly been meager.
The United States Industrial Commission in 1900 referred (d)
only to the second annual report o f the board for the year ended
November 11, 1898, and notes the board’s statement that practically
no labor difficulties had arisen in Colorado during that year, except
in the coal fields in the northern part of the State, and in a more or
less general strike in that industry in January, 1898, the board
actively intervened, this being the one case mentioned by the com
mission in its reference to the board’s work, and apparently the only
important action o f the board that year. In this case the miners’
union requested the State board to investigate the controversy, and
the employers having at about the same time expressed a willingness
to submit to arbitration the parties entered into a formal agreement
for arbitration by the State board, pending which the miners resumed
work. The board completed its investigation on February 11, and
rendered a decision granting practically all the miners’ demands
for an increase o f wages. The board’s report, as quoted by the
industrial commission would indicate that the dispute was thus set
tled by the board’s arbitration. Later information, however, shows
that the board’s decision was subsequently repudiated by the employ
ers. This is, in fact, the statement o f a legislative committee
appointed in 1901 to investigate another serious strike in the same
region and industry in 1900, which reported (e) that when the board’s
o Statement o f the California commissioner o f labor in 1905.
&Page 134.
c Repeated requests for the board’s reports, addressed to the secretary, have
met with no response.
Report o f United States Industrial Commission, Vol. X V II, p. 427.
• Cf. Report o f Colorado Bureau o f Labor Statistics for 1901-2, p. 138.

614

BULLETIN OF THE BUREAU OF LABOR.

decision in 1898 was found to be entirely in favor of the work people
the employers refused to abide by it, and though the miners were
forced by an importation of foreign labor to accept the terms offered
by the employers, this action laid the foundation for the dissatisfac
tion which later culminated in the strike o f 1900.
The Biennial Report of the Colorado Bureau o f Labor Statistics
for 1899-1900 throws considerable light on the work of the board o f
arbitration in those years. The report (a) in reviewing the indus
trial disputes o f these years gives account of 67 strikes, in but 2 o f
which is any action by the arbitration board noted. In both cases
the board intervened upon request of the striking workmen. In one the
board settled the controversy by arbitration; in the other, the great
smelter strike o f 1899, the board held an investigation of the contro
versy and published a decision on the points at issue. The working
men, who had announced a similar intention before the investigation,
reaffirmed their willingness to abide by the board’s findings, but the
employers, in accordance also with previously expressed intention,
declined to accept them, and no settlement was effected. One other
dispute, not involving stoppage o f work, is reported, in which, by
joint agreement o f the parties, the board settled the difference by
arbitration. This record led the commissioner o f labor to express
the opinion that in practical application the Colorado law providing
for the board o f arbitration “ has been almost a dead letter so far,”
and that “ as for the moral effect, it would be difficult to show in what
way it has been good.”
The Sixth Annual Report of the State Board o f Arbitration o f
Colorado, (b) for the year ended November 15, 1902, reports that but
four disputes came before the board in that year. The report states
that the work o f the board was seriously hampered during the year
by an opinion o f the attorney-general, given in October, 1901, that
the board had “ no power to enforce obedience to its subpoenas or to
punish a refusal to testify, and, furthermore, had no power to enforce
its decisions.” The board therefore recommended that the law be
amended so as to remedy these defects in its powers, and this, as pre
viously noted (c) in the analysis of State laws, was done in 1903.
Still later evidence as to the work o f the Colorado board is found in
the Ninth Biennial Report o f the Colorado Bureau o f Labor Statis
tics for the two years ended November 15, 1904. In that report(*)
the commissioner o f labor cited the great conflict o f 1903 in the
Cripple Creek mining district (recounted at length in a chapter on
strikes and lockouts) as ample evidence o f need o f better provision *&
« Page 170 et seq.
&Cf. notice thereof in Bulletin o f the United States Bureau o f Labor No. 50,
January, 1904, p. 158.
4 Pages 8 and 297.
o Cf. supra, p. 595.

GOVERNMENT INDUSTRIAL ARBITRATION.

615

for intervention in disputes by the bureau o f labor statistics, and
recommended that the law creating the State board o f arbitration
should be so amended as to provide that the deputy commissioner o f
labor should be secretary o f the board and that the employees o f the
office o f the deputy commissioner should be members o f the arbitra
tion board, and, to quote the recommendation, “ thus secure the
services paid for and at the present time very seldom availed of.”
CONNECTICUT.

In accordance with the act of 1895, the Connecticut board o f arbi
tration was organized on September 18 of that year. The first and
only annual report of this board, a brief document of two pages, pre
sented September 30, 1895, and appended to the Eleventh Report of
the Bureau o f Labor Statistics, recounts one case of action as the
record for the first two weeks’ work of the board. In this instance
the board intervened in a strike at the request o f the employees and
brought about an amicable agreement of the parties. The Report of
the Bureau o f Labor Statistics for the next year (1896) announced
that the board o f arbitration presented no report because it had acted
in but one case during the year, and then unsuccessfully.^) For the
year following likewise the bureau announced no report from the
board, and this time because there was no action o f any kind to be
reported; and in no subsequent year was anything ever done by this
first board, although it appears to have been nominally in existence
as late as 1900. ( *6)
The chief explanation o f the inactivity of the first Connecticut
board is to be found in its decision to take no action except as one or
other o f the parties to a dispute requested it. Section 4 o f the law
made it the board’s duty to intervene for the purpose o f mediation
“ whenever a strike or lockout shall occur, or is seriously threatened,
in any part o f the State and shall come to knowledge o f the
board.” In their first report the board stated that the word “ knowl
edge,” above, was interpreted as meaning “ a notification from one or
both o f the parties concerned in a strike or lockout.” W hy this
interpretation was adopted it is difficult to understand, unless it was
suggested by the fact that in preceding sections a notice from the
parties was required for cases of arbitration. In this connection it
is proper to note the statement" o f the secretary o f the board to the
United States Industrial Commission to the effect that the courts had
so interpreted the law as to deprive the board of all important
powers. ( &)
a Tw elfth

Report o f the Bureau o f Labor Statistics, 1896, p. 14.
&Report o f United States Industrial Commission, Vol. X V II, p. 42T.

616

BULLETIN OF THE BUREAU OF LABOR.

In 1903 the Connecticut board of mediation and arbitration was
revived by the appointment o f a new board in May o f that year.
This board has made two annual reports, one covering the six months
June to November, 1903, the other the year ended November 30,1904.
The 1903 report gives account o f 7 strikes in which intervention by
the board, or one o f its members, occurred. Mention is made also of
8 other cases in which correspondence occurred with a view to inter
vention, only to find that the disputes were trivial or in a way to be
settled by the parties. The 1904 report recounts only 6 cases of
active intervention, five times in strikes and once in a difference in
which no stoppage of work occurred.
O f the 13 cases for the year and a half covered by the two reports,
in 2 the work people asked for the board’s intervention; in 1 both
parties applied, but in the other the board took the initiative. In
4 o f the 13 cases (2 in each year) the board’s intervention led directly
to a settlement o f the disputes, or (in 1 case) was “ materially in
fluential ” in bringing about a settlement. These 4 settlements
include the 1 case of intervention before strike or lockout; 3 were
effected by conciliation, while in 1 the parties submitted to arbitra
tion by the board. In this last case the arbitration decision was
finally accepted, although it was necessary for the board, after its
decision was given, to settle by conciliation a difference which arose
almost immediately over the interpretation o f one clause o f the
award.
IDAHO.

Although the law providing for a board in Idaho was passed in
1897 no board was ever appointed under that act, or the one identical
with it passed in 1899. Under the more recent law o f 1901, however,
a commission as thereby provided was appointed, (a) but as late as
August, 1903, no report had been made by it, and at that time the
governor o f Idaho stated that the board was rather perfunctory than
otherwise.
L O U ISIAN A.

In Louisiana a board was appointed under the act o f 1894, but
after a short period in which apparently the board was active to some
extent, it lapsed into inactivity. This is to be inferred from a state
ment by the former president o f the board made in 1900 that he had
resigned his office “ several years ago,” and that the board had “ had
no meeting for several years,” and that “ the last meeting was in
reference to a threatened strike of the street railroad employees of
New Orleans, which was adjusted satisfactorily to both employers
®Statement o f commissioner o f the bureau o f immigration, statistics, and labor
in 1901.

GOVERNMENT INDUSTRIAL ARBITRATION.

617

and employees.” So far as can be ascertained there has never been
any revival o f the Louisiana board.
M IC H IG A N .

Although the Michigan law was passed in 1889 no court under it
was appointed until May, 1897, but ever since that time such a court
has been maintained. A complete account of such action as the court
may have taken in the years prior to 1901 is not possible, however, as
no reports were published by the court down to that year. The
evidence available indicates, however, but meager results accom
plished in that period. In December of 1897, a half year after its ap
pointment, all the court had to say of its work was that “ while its
opportunities have been limited, it has gradually succeeded in impress
ing upon employers and employees alike that it is thoroughly im
partial and anxious to do justice, heal dissatisfaction, and /help to
bring about a better understanding between the men who pay wages
and those who receive them.” (a) In the reports of the Michigan
bureau o f labor and industrial statistics (&) are to be found accounts
o f 57 strikes which occurred in the State during 1899, and o f 33 others
in 1900. But o f these 90 disputes in but 2, both in 1899, is any men
tion made o f action by the court o f arbitration. In one case the court
settled the controversy; in the other the dispute was still before the
board at the time the report was made.
For the years 1901 to 1904 the record of the Michigan court of
mediation and arbitration may be seen in its first annual report cover
ing the year ended June 1, 1902, and its first biennial report for the
calendar years 1903 and 1904. (c) For the year ended June 1, 1902,
the court reported that 13 strikes had come to its notice. Except
for one o f these, which was settled by the court, as noted below, there
is, however, no information in the report as to the action taken by
the court in connection with them, except a statement in one that the
court offered its services, but they were refused, and a general state
ment that “ in several instances the efforts o f the court were inef
fectual, as the disputants could not be induced to confer with each
other. In other cases the parties settled their grievances among
themselves, a method o f solution highly commendable.” Appar
ently, therefore, one settlement out o f the 13 cases was the record for
the year. The case settled was characterized by the court as the
most important dispute o f the year, being a strike o f bituminous
coal miners. The court succeeded in bringing about a conference
a See letter o f the court published in the Fifteenth Annual Report o f the
Michigan Bureau o f Labor and Industrial Statistics, p. 273.
» Seventeenth report, 1900, p. 251; Eighteenth report, 1901, p. 241.
o The first biennial report is published as Chap. X I o f the Twenty-second
Annual Report o f the Michigan Bureau o f Labor and Industrial Statistics.

618

BULLETIN OF THE BUREAU OF LABOR.

o f the parties, at which an agreement was reached which terminated
the dispute.
The report for 1903 and 1904 describes 15 disputes (13 strikes) in
the former year and 8 ( 6 strikes) in the latter. In the case of 5 out of
the 23 cases, however, no action by the court is mentioned. In 3 others
the only action indicated is informal investigation o f the situation,
and in 5 more cases it is stated only that the court offered its services,
but they were declined by one or other of the parties, once by the
workers and four times by the employers. In the other cases (7 in
1903, 3 in 1904) definite conciliation or arbitration action is stated.
In 4 cases only was such action successful, all o f these being in 1903.
In 2 instances the court effected a settlement by conciliation and in 2
by arbitration. In one o f the latter the parties to the dispute applied
jointly to the board, having agreed to the arbitration and the men
having resumed work pending the decision. In the other arbitration
case the parties had agreed on local arbitration, and the two arbitra
tors chose a member of the State court as third member and chairman.
In this last case no stoppage o f work had occurred.
M IN N ESO TA.

Under the act o f 1895 Minnesota had a board appointed in May o f
that year. This board’s term of office expired in 1897, and no suc
cessor to it was appointed until 1901. The only dispute which ever
came before the first board was one between the printers and publish
ers o f daily newspapers in St. Paul and Minneapolis. A joint request
for arbitration was accepted by the board and a decision rendered,
but, according to the recollection o f the former president of the
board, the award was unsatisfactory to both parties and is said to
have been disregarded in part by the employers. (»)
Very little different has been the record o f the board which has
been maintained since 1901. Its secretary stated in August, 1903,
that up to that time the board had accomplished nothing, although it
had offered its services in several instances, and the secretary o f state
o f Minnesota reported in 1905 that the board had never made a report
to the State, and that, according to his information, the board did
very little work.
M ONTANA.

In Montana under the laws o f 1887 and 1895 a board of arbitration
was in existence up to the later nineties. The commissioner o f the
Montana bureau o f agriculture, labor, and industry in 1895 reported
that “ so far as known the Montana board from 1887 to 1895 was never
« Statement o f form er member o f first board and statement o f the secretary o f
the later board, in Report o f United States Industrial Commission, Vol. X V II,
p. 447.

GOVERNMENT INDUSTRIAL ARBITRATION.

619

called on but once, and then the parties declined to arbitrate. The
law was to all intents and purposes a dead letter, because it could only
intervene when called upon by the employer or a majority o f his
employees, and then only after tedious delays and circumlocution.” (a)
At the commissioner’s suggestion, therefore, the revised law of 1895
was enacted, whereunder the board could intervene of its own motion
for purposes o f mediation, the older law having provided only for
arbitration on request of one party . (h) The change, however, had
no effect in practical results, for in 1900 the commissioner of the
bureau stated that the law was “ a dead letter * * * and no case
ever came before the board.” Further, at the latter date the board
was incomplete, existing vacancies not having been filled by the
governor. The commissioner of agriculture, labor, and industry in
1905 states that the 1895 law has always been inoperative because no
appropriation for the board has ever been made by the State.
UTAH .

Under the act o f 1896 a board was organized in 1897. The presi
dent o f the board, writing to the United States Industrial Commis
sion in July, 1901, stated that as to its work there was “ nothing of
any consequence to report,” that the only important dispute which
had occurred during the life of the board vas a coal-miners’ strike
in 1901, in which the miners applied to the board for arbitration,
but that as they refused to resume work pending a decision, as
required by the law, unless the employers would first agree to join
in the application, and not to discriminate against individual strik
ers, which the company declined to do, the procedure before the board
could not be carried out. The president added that conciliation in
differences before a rupture had occurred had been the chief function
of the board, and asserted that “ in this direction it had been gratifyingly successful.” ( c) The secretary o f state of Utah reported, in
August, 1903, that the arbitration board had never been called upon
to act and had never made any report. So far as ascertained there
has been no more action by the Utah board since 1903 than before.
The remaining eight State boards not only have been more active
than the nine above considered, but also, fortunately, have all pub
lished regular reports, as required by their laws, whence something
like comprehensive accounts o f their work may be gleaned. The
eight are here considered in order according to the length o f time
they have been in existence, beginning with the oldest, and are as fol
lows: New York, Massachusetts, New Jersey, Ohio, Wisconsin, Illi
nois, Indiana, and Missouri.*6
« Third Annual Report o f the Montana Bureau o f Agriculture, Labor, and
Industry, 1895, p. 17.
6 Cf. supra, p. 598.
0 Report o f United States Industrial Commission, Vol. X V II, p. 462.

620

BULLETIN OF THE BUBEAU OF LABOR.
N E W YO R K .

The first State board o f arbitration in the United States was
appointed in New York June 2,1886. The law o f 1886, under which
this board was created, as already noted, (a) contemplated action in
the first instance by local boards appointed by the parties to each
dispute and made the State board simply a court o f appeal to which
arbitration cases might be carried from such local boards. The
State board’s experience during the six months o f 1886 is chiefly note
worthy as demonstrating the error of so limiting its jurisdiction.
No local board was ever appointed under the law, neither in these first
six months nor at any subsequent time, wherefore the board’s history
would have forever remained a blank if it had confined itself to the
action contemplated by the law. As a matter o f fact, it did not so
limit itself, the pressure of public opinion having led it at the very
outset to intervene in disputes upon its own motion. At the time
the board was appointed a serious strike, involving some 10,000 work
people, was in existence in the city of Troy, 6 miles from the capital,
and the public press and private citizens, with little heed to the read
ing o f the law, at once called upon the board to intervene. Upon
request the State’s attorney-general expressed the opinion that such
action by the board on its own initiative could not find even “ a sem
blance o f authority ” in the law. In spite o f this, however, the board,
taking its sanction from the generally expressed desire, proceeded to
Troy and offered its services as mediator, the outcome being a joint
conference o f the parties and the settlement o f the strike. Similarly,
the board took action in six other cases before the end o f 1886 and in
all but two o f these acted upon its own motion.
The necessity o f a change in the law having been thus demon
strated, upon recommendation of the board the legislature of 1887,
by act o f March 10 o f that year, amended the law so as to give the
board jurisdiction without reference to local boards, not only for arbi
tration but for mediation and authoritative investigation also, and
made it its duty to intervene as mediator upon knowledge o f threat
ened or existing strike or lockout, and so the law has remained ever
since.
The fact has already been noted in connection with the analysis
o f State laws ( &) that with the year 1901 the New York board of
mediation and arbitration became a subordinate division of the
department o f labor then created and underwent a radical change in
organization. Partly on this account, but more especially because
the authoritative summaries of its work given in the board’s reports
since 1900 include only cases of aggressive intervention, while com
pleteness in the analyses and tabulations which have had to be made
a

Of. supra, p. 584.

&Cf. supra, p. 593.

621

GOVERNMENT INDUSTRIAL ARBITRATION.

for earlier years has required the inclusion of some other cases (cases
o f preliminary action, as noted below, so that some o f the result
ant figures, in particular those in the first three o f the follow
ing tables, are not fairly comparable with those of the board’s later
summaries, it has seemed best to consider separately the board’s work
for the period prior to 1901, during which it existed as an independent
State office, and its work since 1900, when it has been one o f three
bureaus in the State department of labor.
The table below shows, by years, the total number of disputes in
which action with a view to intervention was taken by the New York
board, as shown by its annual reports down to 1901:
DISPUTES ACTED UPON BY THE NEW YORK BOARD OF M EDIATION AND ARBI
TRATION, 1886 TO 1900.
Year.
1886 («).....................................................1887 (&)......................................................
1888...........................................................
1889...........................................................
1890...........................................................
1891...........................................................
1892...........................................................
1898...........................................................
1894...........................................................

Disputes
acted
upon.
7
14
20
26
38
27
18
18
25

Disputes
• acted
upon.

Year.
1895...........................................................
1896...........................................................
1897...........................................................
1898..........................................................
1899(c)...................................................
1900...........................................................

30
22
47
30
46
46

Total..............................................

409

° Seven months, June to December.
6 Ten months, the official year closing October 31, from 1887 to 1898.
c Fourteen months, November, 1898, to December, 1899, official year being changed to
correspond with calendar year in 1899 and 1900.

In the thirteen years, 1888 to 1900, an average o f 30 cases a year is
reported. The figures indicate larger activity in later as compared
with earlier years, averaging 35 in the last seven years, as against 21
in the first six, while the numbers in each of the last four years
except one are considerably larger than in any previous year. In the
next table may be seen whence the initiative for the board’s action
came.
IN IT IA T IV E IN CASES ACTED UPON BY THE NEW YORK BOARD OF MEDIATION
AND ARBITRATION, 1886 TO 1900.
Number of cases in which the board acted—
U p on req u est—
Y e a r.

1888....................................................................
1889_____________________________________
1890_________ _______ _____________________
1891................................... .....................
1892
1803111111"" I l i r i l l l l l l l - I I l I I I I I I I I I I Z I
1894
......................................................
1895
.......... ............................................
1896
......................................................
1897
......................................................
1898
......................................................
1899....................................................................
1900....................................................................
T o ta l......................................................

O f its
ow n m o F rom
tio n .
e m p lo y
ers.

F rom
F rom
w o rk b o th p a r
ties.
p e o p le .

......... .......
4
2
2
1
1
1

1
1
3
.
2
2
5 ............T
2
3
1
1
1
I

T o ta l.

40 ..............i ‘
41
l

...........

2
7
4
5
7
3
4
1
3
5
1
4
1
6
5

?
16
21
26
24
14
1
21

............. 2
1

............. i '
............ ?

351

G ra n d to
ta l.

7
14
20
26
33
27
18
18
25
30
22
47
30
46
46
409

622

BULLETIN OF THE BUREAU OF LABOR.

As was found for the first year, so thereafter, the board’s interven
tion was almost entirely upon its own initiative, action* having been
taken by request o f the parties in only one in seven cases for the
entire period, and the proportion shows no upward tendency during
the fifteen years. So far as the board was called in by parties in dis
pute, requests came more frequently from work people than from
employers, and the cases where the parties applied to the board by
mutual agreement are rare.
Nearly always intervention by the board has not occurred until
disputes have reached the acute stage o f strike or lockout, as appears
from the following figures:
STRIKES AND LOCKOUTS ACTED UPON BY THE NEW YORK BOARD OF M EDIA
TION AND ARBITRATION, BEFORE AND AFTER SUSPENSION OF WORK, 1886
TO 1900.
Cases of intervention.

Total
Total in strikes Interven
terven and lock tions per
tions in outs in
100
A fter
strikes
State
strikes
strike or and lock (calen and lock
Fol
lowed by lockout.
dar
outs.
outs.
strike or
year), (a)
lockout.

Before suspension
of work.
Year.
Total.

1886
...............................................
1887..............................................................
1888..............................................................
1889..............................................................
1890...............................................................
1891..............................................................
1892...............................................................
1893...............................................................
1894.............................................................
1895...............................................................
1896...............................................................
1897...............................................................
1898...............................................................
1899...............................................................
1900...................... .......................................
Total.................................................

1
1
2
5

1
1
i

_____i _

2
2 i ________
1
1
3
1
2
4
1
2
6
2
3
2

6
13
18
21
33
27
18
16
23
27
20
43
29
40
43

6
14
19
24
33
27
18
18
23
28
21
43
29
42
45

350
520
283
437
822
769
465
387
424
362
216
248
280
299
327

1.7
2.7
6.7
5.5
4.0
3.5
3.9
4.7
5.4
7.7
9.7
17.3
10.4
14.0
13.8

377

390

6,189

6.3

Intervention before suspension o f work occurred in but 32 out of
the 409 cases, and the strike or lockout stage had practically been
reached in 13 o f that number, as shown by stoppage of work very
soon after the board’s intervention. The difficulty o f securing prompt
information o f disputes, as a means to its early intervention, has been
the subject o f frequent complaints by the New York board. Since,
• See Sixteenth Annual Report of United States Commissioner of Labor, pp. 92, 626.
Since 1888 the New York board has presented in its reports brief accounts of all disputes
in the State of which it could learn, whether intervention occurred or not. The total of
strikes and lockouts in the State, given in the reports for 1894 to 1900, varies consider
ably from the figures given by the United States Commissioner of Labor. The board’s
figures for total strikes and lockouts would show the follow ing:

Year.

1894 ............................................
1895 ......... a. ...............................
1896 .........................................
i m ............................................

Inter
Total ventions
strikes per 100
and
strikes
lockouts. and lock
outs.
425
417
246
245

5.4
6.7
8.5
17.6

Year.

1898..........................................
1899..........................................
1900..........................................

Inter
Total ventions
strikes per 100
strikes
and
lockouts. and lock
outs.
271
455
547

10.7
9.2
8.2

623

GOVERNMENT INDUSTRIAL ARBITRATION.

as already noted, the parties to disputes have shown very little inclina
tion to call upon the board, the latter has had to depend for its knowl
edge o f the existence o f disputes upon newspaper reports, which ordi
narily chronicle them only when open hostilities occur and frequently,
even in such cases, so tardily that the board has failed to hear of
strikes until several days after they had occurred. This difficulty has
led the board to urge the incorporation in the New York law of a
provision, found in several other States, (a) requiring local public
authorities to notify the board of existing or threatened strikes and
lockouts. Thus far, however, the legislature has not acted upon this
recommendation.
In the table above comparison is made of the total number o f inter
ventions by the board in strikes and lockouts with the total number
o f the latter occurring in the State. The last four years, it will be
seen, show higher percentages than any earlier years, but no general
upward tendency appears after 1897, when the highest proportion was
reached.
The nature o f the action taken by the board in the cases above
enumerated varied all the way from mere request to the parties for
information concerning the controversy to formal arbitration or
public investigation. They may, therefore, be divided into two
classes: First, those in which no more than action preliminary to
actual intervention was taken, and second, those wherein there was
positive intervention by the board. The former class includes all
instances o f mere inquiry for information, simple tender o f services
without other effort to induce its acceptance, action taken after a
dispute was ended, proposed interventipn where the controversy was
settled before the board reached the locality, etc. Such a division,
with a further division of the second class according to the board’s
success or failure in each case, gives the following results:
DISPUTES ACTED UPON BY THE NEW YORK BOARD OF M EDIATION AND
ARBITRATION, BY RESULTS, 1886 TO 1900.
Total
cases
acted
upon.

Year.

Positive intervention result
Prelim
ing in—
inaryaction
only.
Failure. Settle
Total.
ment.

Disputes
settled
without
strike or
lockout.
1

1886..............................................................
1887.......................................... ...................
1888...............................................................
1889...............................................................
1890...............................................................
1891...............................................................
1892...............................................................
1893...............................................................
1894...............................................................
1895...............................................................
1896...............................................................
1897...............................................................
1898...............................................................
1899...............................................................
1900..............................................................

7
14
20
26
33
27
18
18
25
30
22
47
30
46
46

3
10
16
20
7
8
7
3
5
17
11
15
13

10
9
11
10
6
7
6
6
20
13
14
8
14
21

7
4
8
5
7
1
4
4
12
7
4
16
11
17
12

7
14
17
16
17
7
11
10
18
27
17
30
19
31
33

2
2
1
4
1
4
1

T o ta l.................................................

409

135

155

119

274

a C t supra, p. 598.

1
2

624

BULLETIN OF THE BUREAU OF LABOR.

It should be borne in mind that the cases here classed as showing
preliminary action only are as a rule the least important disputes
coming to the board’s notice, also that while these cases can not add
anything to the board’s record in actually adjusting differences, no
more can many o f them be classed as positive failures on the part of
the board. In several the board found controversies already so near
to a settlement that intervention was not needed, and in a majority
o f them the dispute was found to be already terminated by the time
the board secured information of it or could reach the scene.
Likewise concerning the number o f cases settled, it may be said at
once that the above figures scarcely represent all that the board has
accomplished. A numerical measurement of the moral influence a
State board may have exerted, even where its efforts failed utterly,
by bringing to the attention o f industrial classes *and the public the
subject of conciliatory methods, and by its very existence as well as
active operations suggesting such methods—in short, the educational
effect o f its activities—is, o f course, impossible. A t the same time,
the chief end o f such a board being the settlement of disputes a
statement o f the number actually settled does properly measure its
most important work, and to a considerable degree its educational
influence is proportionate to its success in interventions.
In fifteen years the New York board aggressively intervened in 274
disputes, and o f these settled 119, or 43.4 per cent. The average
number o f such interventions and settlements per year was 19 and 8,
respectively. (a) It will be observed that the absolute numbers in
respect o f both these items are considerably larger in later as com
pared with earlier years, the total number for the last five years being
130 cases o f intervention and 60 disputes settled, against 144 interven
tions and 59 settlements for the entire ten years previous to 1896.
In 19 cases the board actively intervened in disputes before any
strike or lockout had occurred, and in every case adjusted the differ
ence without any suspension o f work.
To properly indicate how far the board has met the need for such
work as it is designed to perform it is necessary to compare the amount
o f its aggressive action and the number o f times its intervention was
successful with the total disputes occurring in the State. Leaving
out the 19 cases o f intervention in which no suspension o f work
occurred, the number of aggressive interventions and settlements
per 100 strikes and lockouts are found to be as follow s:
a Disregarding

1886-87, which were not fu ll years.

625

GOVERNMENT INDUSTRIAL ARBITRATION,

AGGRESSIVE INTERVENTIONS AND SETTLEMENTS BY THE NEW YORK BOARD
OF M EDIATION AND ARBITRATION PER 100 STRIKES AND LOCKOUTS, 1886
TO 1900. (°)

Year.

Aggressive Settlements
interven
per 100
tions per 100 strikes
and
strikes and
lockouts.
lockouts.

1886...............................
1887...............................
1888...............................
1889...............................
1890...............................
1891...............................

2.0
2.7
6.0
3.7
2.1
.9
24
&6
4.2

1892

1893...............................
1894...............................

2.0
.8
2.8
1.1
.9
.1
9
1.0
2.8

Aggressive Settlements
interven
per 100
tions per 100 strikes
and
strikes and
lockouts.
lockouts.

Year.

1895.............................
1896.............................
1897.............................
1898.............................
1899.............................
1900.............................

7.5
7.9
12.1
6.8
10.4
10.1

1.9
1.9
6.5
3.9
5.7
3.7

T otal...............

4.4

1.9

It is seen that in the fifteen years the board intervened aggressively
in 4.4 per cent o f the strikes and lockouts in the State and succeeded
in terminating 2 per cent. The proportions are higher for the last
four years than for earlier years, but are highest for 1897, in which
year the largest number of interventions but two and the lowest num
ber but one of strikes and lockouts occurred. Prior to 1897 the pro
portion o f settlements remained constantly below 3 per cent.
So far as the board has settled disputes it has done so in the great
majority o f cases by conciliation as distinguished from arbitration, as
indicated in the following table:
DISPUTES SETTLED BY THE NEW YORK BOARD OF M EDIATION AND ARBI
TRATION, BY METHOD OF SETTLEMENT, 1886 TO 1900.
Num b er of dispiates settlesd by—
Year.

Public
Concilia Arbitra investi
tion.
tion.
gation.
3

2
2

1886 ..................................................................................................
1887 ..................................................................................................
1888 ..................................................................................................
1889..................................................................................................
1890..................................................................................................
1891..................................................................................................
1892 ..................................................................................................
1893 ....................................... ..........................................................
1894 ..................................................................................................
1895 ..................................................................................................
1896 ..................................................................................................
1897 ..................................................................................................
1898 ..................................................................................................
1899 ..................................................................................................
1900 ..................................................................................................

6
1
6
1
3
4
10
5
4
13
11
16
12

T o ta l.....................................................................................

4
1
1
2
2
3

1
1

Total.
7
4
8
5
7
1
4
4
12
7
4
16
11
17
12
119

° If the number of strikes and lockouts reported by the board be taken for comparison
instead of the number reported by the United States Commissioner of Labor as above, the
results for 1894-1900 are as follow s:

Year.

Aggressive Settlements
interven
per 100
tions per 100 strikes
and
strikes and lockouts.
lockouts.

1894...............................
1895.................
1896
1897...............................
1898...............................

4.2
6.4
69
12.2
7.0

50—No. 60—05 m----- 16

2.8
1.7
16
&5
4.1

Year.

Aggressive Settlements
interven
per 100
tions per 100 strikes
and
strikes and
lockouts.
lockouts.

1899.............................
1900.............................

6.8
6.0

3.7
2.6

T otal...............

6.7

3.0

626

BULLETIN OF THE BUREAU OF LABOR.

Arbitration was the means used in not quite 1 in 5 o f the cases
settled, that method appearing oftener in earlier than in later years.
In 7 o f the 21 instances the arbitration was by a local board arranged
with the assistance o f the State board, and in case o f 4 o f these, with
a member o f the latter as chairman or umpire, so that regular arbi
tration by the State board occurred but 14 times. In 3 o f these
I member o f the board alone was the arbitrator, while the full board
acted in 11 cases. In this connection it may be noted that in cases
o f conciliation 1 member o f the board or its secretary frequently
acted alone, though the full board was convened, as a rule, for all the
more serious disputes.
In 5 o f the arbitration cases there was no suspension o f work (1
before a local board with member o f the State board as chairman, 1
before a single member o f the board, and 3 before the full board), in
II cases strike or lockout had occurred, but work was resumed pend
ing the decision, while in 5 work was not resumed until after the
decision was rendered (a) (once before the board as a whole, once
before 1 member, and twice before a local board on which a member
o f the State board sat as chairman or umpire). In every case where
arbitration was submitted to by the parties the dispute was settled
by the decision, and only one instance appears in which an award was
subsequently broken, that occurring in 1887, when an award o f the
year before was repudiated by the work people.
When conciliation efforts fail, and the parties will not refer to
arbitration o f any sort, a third course is open to the New York
board, viz, a public investigation into the causes and circumstances
o f the controversy. Thirty-one times altogether such action was
commenced, at least, by the board. The greatest number in any one
year was 6 in 1899; 4 cases occurred in 1887, the first year that the
law provided for public investigation, while in other years from 1
to 3 appear, except in 1893 and 1898, when there were none. Such
investigations occurred in later years less frequently than in earlier
years and were resorted to in about 1 in 5 o f the cases in which the
board failed to effect a settlement by conciliation or arbitration,
being confined entirely to the largest and most serious disputes.
O f the 31 cases 1 was abandoned at the outset as the result o f the
withdrawal o f one o f the parties, and without a settlement of the
dispute; in one the hearings were postponed to allow parties to secure
counsel, and during the adjournment they came to a settlement inde
pendently o f the board; in 1 (the only public investigation o f a dis
pute not involving suspension o f work) the parties, with the assista This was not strictly in accord with the letter o f the law whfrh prescribes
that the parties shall “ continue in business or at work without a strike or
lock ou t” pending the decision. (C f. supra, p. 599.)

GOVERNMENT INDUSTRIAL ARBITRATION.

627

ance o f a member of the board, effected an amicable agreement during
the investigation;^) while in 28 cases the investigation was fully
carried out. As to the results o f these 28 full investigations, in 1 the
board’s decision at the close was promptly adopted by both parties,
but in the other 27 the investigation failed to settle the dispute. In
2 o f these it is true the strike was declared off shortly after the con
clusion o f the investigation, but it appears from the report that in
neither was this the effect o f the board’s findings. On the contrary,
in both instances the board’s recommendation was definitely refused
by one o f the parties (in one by the employers, in the other by the
work people), and the declaring off o f the strike appears simply as
the final surrender of the strikers. But while the board’s public in
vestigations were thus failures so far as putting an end to the strikes
or lockouts is concerned, it is asserted by the board that in some
cases such investigations were o f service in that they “ developed
conditions not generally known to exist, and public sentiment has
been thereby aroused to such a degree as to cause a change for the
better o f those conditions which led to the controversy.” (**6) It must
be said, however, that any such service was rendered in most cases
late in the course o f disputes, the investigations being undertaken only
after protracted struggles between employers and employed.
Previous to 1898 the board, as a rule, published no findings or
recommendations after an investigation, such not being required by
law, and the avowed policy o f the board being against their publica
tion .^ ) In two cases before that time special reports were made to
the State legislature, and in a third case a report was given out to the
public, but no report was made in the other 19 cases. After the
change o f law in 1897 requiring the report,(d) however, a finding of
fact, with recommendations to the parties, was made and published
in each o f the investigations, 6 in all, down to 1901.
Below is a summary of the work of the New York board of
mediation and arbitration since its incorporation in the department
o f labor, made up from the summary statements given in the annual
reports. It is to be remembered that these figures are fairly com
parable only with those o f earlier years which have reference to
u positive interventions.”
a In this case the board undertook the investigation at the request o f the
employees without any previous mediatory efforts, as the dispute concerned an
alleged infringem ent o f an agreement reached at the conclusion o f a strike
some time before. In all the other investigations conciliation had been tried
and failed, the investigation being a last resort adopted as a rule only after
protracted struggle between the parties.
&Annual Report, 1897, p. 14.
o Cf. Annual Reports, 1890, p. 381; 1891, p. 830.
C f. supra, p. 602.

628

BULLETIN OF THE BUREAU OF LABOR.

DISPUTES ACTED

UPON BY THE NEW YORK BOARD OF M EDIATION
ARBITRATION, BY RESULTS, 1901 TO 1904.
Positive interventions re
sulting in—

Year.

AND

Inter
Settle*
Total
ments
strikes vention
per
100
per
100
and lock strikes
strikes
outs re and lock and
lock
corded.
outs.
outs.

Settle
ment.

No set
tlement.

1901(a)..........................................................
1902...............................................................
1903..............................................................
1904...............................................................

6
12
8
8

11
20
20
5

17
32
28
8

126
142
202
129

13.5
22. 5X
13.9
6.2

4.8
8.5
4.0
2.3

T otal.................................................

599

14.2

4.8

Total.

"N in e months January to September, the official year closing September 30.

In connection with the cases classed as resulting in “ no settle
ment,” it may be noted that concerning 3 o f these in 1902 and 2 in
1903 it is stated that upon intervention the board found matters
already on the way to a settlement, so that its services were not re
quired, and that concerning 2 others o f these cases in 1903 it is re
marked that though the board’s efforts “ had no perceptible immedi
ate effects ” they “ may have helped toward a settlement.”
A ll o f the above interventions, save one in 1902, were in disputes
involving strike or lockout, and in all but one o f these (in 1901)
intervention did not occur until after stoppage of work. The 1903
report notes one other instance, not included in the summary o f work
for that year, in which a member of the board assisted other concil
iators in the arrangement o f a conference which finally prevented a
serious strike which was threatened. In all but 16 instances out of
the 85 cases summarized above the board intervened upon its own
initiative. Twice (once each in 1901 and 1902) employers alone
took the first steps for the board’s intervention, and 14 times (2 in
1901, 5 in 1902, 6 in 1903, and 1 in 1904) the workers alone.
A ll o f the board’s interventions were in the nature o f conciliation,
as distinguished from arbitration, save one case in 1902. In that case,
upon the initiative o f the workers, the parties submitted a wage ques
tion to the arbitration o f a member o f the board under a signed
agreement, and his decision settled the dispute without a strike or
lockout, this being the one case in the summary o f interventions
above noted for 1901 to 1904 in which no suspension o f work
occurred. No public investigation of the causes of a dispute has
been made by the board since 1900.
M ASSACHUSETTS.

But two months later than the New York board, in the summer of
1886, the Massachusetts board of arbitration was organized. Its
first four months’ work, like the first experience o f the New York
board, served to demonstrate the futility o f establishing a board with
no power to intervene in disputes upon its own motion. The original
law provided for action only upon application from one or both o f

629

GOVERNMENT INDUSTRIAL ARBITRATION.

the parties. The action to be taken was chiefly in the nature of
arbitration, and it was apparently expected that parties would apply
before strike or lockout had occurred, since the law required o f those
applying that they should promise “ to continue on in business or
at work,” and directed the board, after visiting the locality and in
quiring into the cause of the dispute, to advise the parties what they
ought to do for a settlement, and render a written decision on the
case, which was declared should be binding upon those joining in the
application for six months, or until either party gave the other a
sixty-day notice o f refusal to abide by it. No power was given the
board to summon witnesses. They could simply hear all persons who
might come before them.
Under this law, during the four months o f 1886 the board acted
in five cases, settling two, failing in two, with one pending at the close
o f the year. This four months’ experience resulted in an amendment
o f the law in 1887 giving the board its present powers, including, in
addition to its jurisdiction for arbitration, as before, power to inter
vene o f its own motion for conciliation purposes or for public investi
gations and power to summon witnesses and require the production
of books and papers and requiring local city and town authorities to
assist the board to prompt intervention by notice to it of threatened
or existing strikes and lockouts.
The extent o f the Massachusetts board’s activities under this larger
authority may be seen in the following table:
STRIKES AND LOCKOUTS ACTED UPON BY THE M ASSACHUSETTS BOARD OP
ARBITRATION BEFORE AND AFTER SUSPENSION OF WORK, 1886 TO 1904.
Action take:a—

Year.

Total
cases
acted
upon.

Total in Total
Inter
terven strikes ventions
tions in and
t>er
100
lock strikes
A fter
strikes
Fol
strike or and lock outs in and lock
lowed by lockout. outs. State. («) outs.
strike or
lockout.

Before suspension
of work.

Total.
1886 (6) .......................................
1887..............................................
1888..............................................
1889..............................................
1890.............................................
1891..............................................
1892..............................................
1898..............................................
1894..............................................
1895................................. ............
1896..............................................
1897........................ ....................
1898..............................................
1899..............................................
1900..............................................
1901..............................................
1902..............................................
1903..............................................
1904..............................................

4
21
41
28
84
29
40
32
88
32
29
36
19
26
50
94
106
167
122

3
11
11
10
8 »
9
16
9
16
13
14
19
8
5
15
24
49
105
74

Total.................................

948

419

1
2
1
4
2
8
8
6

1
10
30
13
26
20
24
23
22
19
15
17
11
21
35
70
57
62
48

2
10
31
15
27
20
25
23
23
19
15
18
13
22
39
72
65
70
54

135
142
100
130
158
145
162
175
131
74
47
65
43
77
79
274
276
217
198

1.5
7.0
31.0
11.5
17.1
13.8
15.4
13.1
17.6
25.7
31.9
27.7
30.2
28.6
49.4
26.3
23.6
32.3
27.3

524

563

2,628

21.4

1
1
2
1
1
1

•Figures for 1886 to 1900 from Sixteenth Annual Report of United States Commis
sioner of Labor, pp. 76, 5 5 4 ; for 1901 to 1904, from annual reports of the Massachusetts
bureau of labor statistics. The figures for the last four years are made up on a different
basis from those of earlier years, and are therefore not comparable with the former.

* Four months only.

630

BULLETIN OF THE BUREAU OF LABOR.

In its report for the year 1897(«) the board remarked that “ the work
o f the board, taken one year with another, remains about the same in
character and extent, without any special enlargement o f the sphere
o f its influence.” The above table would seem to bear out this state
ment very well down to the year 1900. But the years 1900 to 1904
show a much larger amount o f intervention, possibly on account o f
fuller reports, though there is no evidence of this in the reports them
selves, and on the whole an increasing activity during the five years.
In 44 per cent o f the cases intervention took place before disputes
had involved stoppage o f work. The proportion of such cases was
very much larger in the last five years, and this kind of intervention
has increased in recent years much more than interventions in strikes
and lockouts. Adding to the cases o f action after suspension o f work
had occurred those instances in which stoppage occurred after inter
vention gives a total o f 563 strikes and lockouts in which the board
intervened, or 21.4 per cent of the 2,628 reported for the State. It
should be noted that in the percentages for the different years there
appears little chance for valid comparison except within the periods
1886 to 1894, 1895 to 1900, and 1901 to 1904, on account o f the great
variations in number o f reported strikes and lockouts.
In connection with the question o f early intervention in disputes,
it is o f interest to note how often the board has been notified o f im
pending or existing strikes by the mayors of cities or town selectmen.
As a matter o f fact, out o f the 943 cases of action reported such
notice was received, so far as the reports show, in but 21 (4 in 1893,
3 in 1904, 2 each in 1890, 1901, and 1903, and 1 each in 1888, 1889,
1892, 1894, 1896, 1897, 1898, and 1902), and the notice in each o f
these instances, save once each in 1902 and 1903, was not given until
suspension o f work had occurred. That provision o f the Massachu
setts law has, therefore, been very largely a dead letter.
In almost exactly one-half of the cases it appears from the reports
that initiative for the board’s intervention was taken by one or both
o f the parties in dispute, thus:

« P&ge 8.

631

GOVERNMENT INDUSTRIAL ARBITRATION.

IN IT IA T IV E IN CASES ACTED UPON BY THE M ASSACHUSETTS BOARD OF
ARBITRATION, 1886 TO 1904.

Total
cases
acted
upon.

Year.

1886(a)..........................................................
1887............... ...............................................
1888..............................................................
1889..............................................................
1890..............................................................
1891..............................................................
1892........ .....................................................
1893................. ............................................
1894..............................................................
1895..............................................................
1896..............................................................
1897...............................................................
1898...........................................................
1899...............................................................
1900..............................................................
1901..............................................................
1902..............................................................
1903..............................................................
1904.............................................................

4
21
41
23
34
29
40
32
38
32
29
36
19
26
50
94
106
167
122

Total................................................

943

Number of cases in which action was taken
upon initiative of—
Employ W ork
ers.
people.

Both
Total by
parties. parties.

The
board.

2
5
2
7
12
4

3
1
11
5
6
5
9
8
7
4
5
5
1
5
9
17
21
22
10

1
8
5
5
3
7
9
4
10
9
12
15
5
1
2
11
25
68
55

4
11
25
17
15
12
21
14
19
16
17
23
6
8
16
30
53
102
69

10
16
6
19
17
19
18
19
16
12
13
13
18
34
64
53
65
53

154

255

478

465

2
9
7
6
3
2
2
3
3

° Four months only.

It appears that work people have called upon the board somewhat
more than twice as often as employers, but that in a still larger num
ber o f cases both parties united in turning to the board for assistance
in settling their differences. Partly explaining the above figures is
the fact that the boot and shoe industry has furnished a large
majority o f the cases which have come before the board, (a) and
that the labor organizations in that industry are very favorably
disposed toward the board. Indicative o f that disposition is the
statement made by the general secretary-treasurer o f the Boot and
Shoe Workers’ Union to the United States Industrial Commis
sion in 1899, th a t 66in Massachusetts, I think, we have about the best
board o f arbitration in the country. * * * Still, of course, the
decisions o f the State board in Massachusetts are not always to our
liking. We get the short end o f it quite frequently, yet on the whole we
have a good deal of respect for that institution, and I should prefer
that, in a general way, in Massachusetts, to the local boards that have
not had the experience and do not understand the methods o f arriving
at a right conclusion. The methods employed by the Massachusetts
board are excellent.” ( *6) To some degree also the employers in that
industry share this attitude, so that some o f the principal manufac
turers have standing agreements with their employees to refer dis
a Report

o f United States Industrial Commission, Vol. V II, Testimony, p. 919.
&Report o f United States Industrial Commission, Vol. V II, Testimony, p. 374.

632

BULLETIN OE THE BUREAU OF LABOR.

putes to the State board whenever agreement can not be reached by
direct negotiations, and according to the board’s report for 1903—
Both employers and employees have manifested in recent years a
growing disposition to define their relations by industrial trade agree
ments, embodying a provision that controversies arising should be
submitted to the State board o f conciliation and arbitration for
settlement.
The results o f intervention by the board are set forth in the follow
ing table:
DISPUTES ACTED UPON BY THE MASSACHUSETTS BOARD OF ARBITRATION,
BY RESULTS, 1886 TO 1904.

Year.

Prelim
inary
action
only.

Total
cases
acted
upon.

Positive interven
Percent
tion resulting in— Disputes
of
Strikes age
settled and
total
lock
without outs set strikes
Settle Failure. strike or
tled. and lock
ment.
lockout.
outs set
tled.

1886(a).........................................
1887..............................................
1888..............................................
1889..............................................
1890..............................................
1891..............................................
1899..............................................
1898..............................................
1894..............................................
1895..............................................
1896..............................................
1897..............................................
1898..............................................
1899..............................................
1900..............................................
1901..............................................
1902..............................................
1903..............................................
1904..............................................

4
21
41
28
84
29
40
32
88
32
29
86
19
26
50
94
106
167
122

1
4
2
8
5
11
5
10
4
4
6
8
7
7
25
18
39
26

16
24
16
15
16
16
12
15
15
15
18
7
12
17
48
59
77
66

2
4
13
6
11
8
13
15
13
13
10
12
9
7
26
26
29
51
30

7
7
3
7
9
6
9
10
12
12
5
3
5
14
31
65
57

7
17
8
12
9
7
6
6
5
3
6
2
9
12
29
28
12
9

4.9
17.0
6.2
7.6
6.2
4.3
3.4
4.6
6.8
6.4
9.2
4.7
11.7
15.2
10.6
10.1
5.5
4.5

Total................................

943

185

460

298

273

187

7.1

2
9

"F o u r months only.

For the entire period of eighteen and one-third years the board
settled 49 per cent o f the total cases in which any action was taken,
or 61 per cent o f the cases of positive intervention. A considerable
majority o f the disputes settled by the board were terminated with
out strike or lockout, while the strikes and lockouts settled amounted
to a little over 7 per cent o f the total number reported.
A comparison o f the last four years, in which the amount o f inter
vention has been so largely increased, with the earlier years shows
that while in the period from 1886 to 1900 there were settlements in
57 per cent o f the cases of positive intervention, o f which about onehalf were effected without strike or lockout, during the last four years
(1901 to 1904), 64 per cent o f the positive interventions produced
settlements, and two-thirds o f these were without strike or lockout.
The increased work o f later years has, therefore, been especially in
the direction o f settling controversies with avoidance o f stoppage o f
work.

633

GOVERNMENT INDUSTRIAL ARBITRATION.

Examining as to the methods by which disputes have been settled,
the following results appear:
DISPUTES SETTLED BY MASSACHUSETTS BOARD OF ARBITRATION, BY
METHOD OF SETTLEMENT, 1886 TO 1904.
Number of disputes settled by—
Decision
on sub Public
Concili Arbitra mission
investi
ation.
tion.
by one gation.
party.

Year.

1
7
12
9
8
9
7
8
7
5
4
5

1886 (a)...........................................................................
1 8 8 7 ..............................................................................
1888.................................................................................
1889.................................................................................
1890.................................................................................
1891................................................................................
1892.................................................................................
1893.................................................................................
1894.................................................................................
1895.................................................................................
1896.................................................................................
1897.................................................................................
1898.................................................................................
1899.................................................................................
1900.................................................................................
1901.................................................................................
1902.................................................................................
1903.................................................................................
1904.................................................................................

11
15
36
35
26
22

Total....................................................................

229

1
9
9
6
5
7
8
4
8
10
11
12
5
1

7
24
51
44
224

Total.

16
24
15
15
16
16
12
15
15
15
18
7
12
17
43
59
77
66
460

a Four months only.

One-half o f the settlements have been effected by conciliation,
leaving, however, a notably large number o f arbitrations. In 199
o f the 224 successful arbitrations the board acted upon the joint
initiative o f the two parties in the first instance (joint formal appli
cation must ultimately be made in all arbitrations under the law, of
course), and in 198 o f the 224 there was no strike or lockout. Com
parison o f these figures with those in previous tables shows that it is
these arbitration cases which chiefly explain both the large number
o f instances in which the Massachusetts board has acted upon appli
cation from both parties and the large number of disputes which have
been settled without any stoppage of work. An examination o f the
arbitration cases for the years down to 1900, inclusive, shows that
80 out o f the 98 successful arbitrations in that period were in the boot
and shoe industry. The same thing appears in later years also.
Thus the board’s report for 1902 (°) notes an “ increasing tendency to
arbitrate differences rather than strike, as shown by the fact that
the board has been called upon to render decisions in more than
twice as many cases as in the previous year,” and states that “ most ”
o f these cases were in the shoe industry and were presented to the
board in accordance with agreements to that effect between employers
and employed. An examination o f the 44 arbitrations o f 1904 shows

<*Page 12.

634

BULLETIN OF THE BUREAU OF LABOR.

that all but 1 were in the boot and shoe industry. The notable success
o f the Massachusetts board in the direction o f arbitration has thus
been chiefly due to the favorable opinion it has won in the great boot
and shoe industry o f the State.
Almost invariably the board’s decisions in cases o f arbitration have
been accepted and carried out by the parties. -Besides the 224 success
ful cases above mentioned there have been but 2 other arbitrations by
the board, both in the boot and shoe industry. In each o f these the
award was rejected by the work people, who in the first case (in 1889)
went on strike again immediately after the award was rendered, and
without any notice to the employers, but in the other (in 1894) pre
ceded their rejection by the sixty-day notice of such intention, as
required by law. In one other case (in 1898) the sixty-day notice o f
rejection was given by the work people, but before that period expired
they came to an agreement with the employer on substantially the
same terms as the award, and in another (in 1887) five months after
the board’s decision a strike in contravention o f it occurred, but upon
the board’s report, made at the request o f the employer, that the
strike was illegal under the award, work was promptly resumed.
The last two cases must be considered as practically successful, and
are included in the total of 224 settlements by arbitration above. The
same thing has been done also with one other case in 1904, in which,
three weeks after the board’s decision was rendered, the representa
tive o f the workers advised the board that he had given the employer
the sixty-day notice o f intention not to be bound by the award, but
the board heard nothing further of the controversy.
O f the 27 cases (a) of arbitration in strikes and lockouts, in all but
one work was resumed pending the decision, as required by law, and
in that one the parties had agreed to resume on a fixed date, although
that date fell later than the board’s hearing o f the case. In but a
single instance was an agreement to resume work broken before the
award was given, and in that case, the work people having struck, the
hearing was continued with the employer’s consent, as provided by
law, and the decision, when rendered, was accepted by both parties.
Besides the above cases, in which arbitration was fully carried out,
there have been a number o f others in recent years in which the parties
formally agreed to submit the case to the board, but the arbitration
procedure was not carried out. There were 2 o f these in 1901, 5 in
1902, 14 in 1903, and 9 in 1904, or a total of 30. One of these
occurred (in 1901) in connection with a strike in which the board had
intervened at the request of the workers and had persuaded the par
ties to jointly submit to the board?s arbitration, work being resumed
as required by the law. In all o f the other cases the parties applied
aIncluding one o f the cases o f arbitration, that o f 1889, which failed.

GOVERNMENT INDUSTRIAL ARBITRATION.

635

jointly, o f their own motion, before any stoppage of work. In 12
cases (1 in 1901, 3 in 1902, 2 in 1903, and 6 in 1904) hearings were
given by the board in the regular order for arbitration, but these
hearings led to an amicable settlement between the parties. In one
or two instances an agreement was reached at the hearing, but more
frequently the boafrd, seeing possibility o f amicable settlement, advised
conferences, which resulted in agreements. These 12 cases, which
include the one in connection with a strike above noted, are reckoned
in the table above as settlements by the board by conciliation. In
the other 18 cases the board really took only action preliminary to the
regular arbitration, no hearings being held save in one case, and these
18 cases are reckoned above in the class of “ preliminary action only.”
In 13 o f these, before the board could proceed to a hearing, the parties
jointly announced a settlement and requested that the arbitration
proceedings be discontinued; in one a hearing had been given and the
case referred to experts when the parties made similar joint announce
ment; in one case the employer alone announced the settlement and
withdrew the application; in the three remaining cases no settlement
was announced, but the arbitration proceedings could not be carried
out— once because the firm involved went out o f business, once because
the employer withdrew from the joint submission, and once because a
strike by the workers intervened as the result o f a dispute with a rival
labor organization.
Nearly all o f the board’s arbitration work has been in disputes con
cerning wages. Thus out of the 98 cases in which arbitration
occurred, down to and including the year 1900, in 89 the board was
called upon to determine wages alone, and the same is true for 76 of
the 82 arbitrations in the boot and shoe industry during the same
period. Similarly 43 of the 44 arbitrations in 1904 concerned wage
questions only.
In wage questions especially technical knowledge o f the trade is
obviously o f great importance, and the provisions o f the law for
expert assistants have been found of great value by the Massachusetts
board. Since 1892 such assistants have always been appointed in
arbitration, as required by the amendment o f that year; but as a
matter o f fact, before that and before 1890, when they were first
provided for by law, the board frequently called in assistants to fur
nish technical information, so that the law o f 1890-1892 was the
direct outgrowth o f practical experience. Testimony to the value
o f such assistance is to be found in the board’s reports and in
its evidence before the United States Industrial Commission in
1900. (a) The aid o f such experts has not enabled the board, howa CL Report o f United States Industrial Commission, Vol. V II, Testimony, pp.
907, 908; Report o f the Board, 1900, p. 13.

636

BULLETIN OF THE BUREAU OF LABOR.

ever, to carry out one intention o f the law as to arbitration, viz, that
the decision o f the board should be rendered within three weeks o f
the date o f the filing o f an application for arbitration, the section o f
the law requiring a promise o f the parties to continue at work pend
ing the award containing the proviso “ i f it (the decision) shall be
made within three weeks.” This has in practice been a dead letter,
the board having found it impossible to properly pass upon a long
list o f wage rates within that time,(a) but this failure has not pre
vented the observance o f the law’s requirement o f resumption o f
work, as already noted.
Finally, concerning arbitration it is worthy o f note that in some
cases the influence o f the board’s decisions has apparently gone be
yond the particular case in hand, and wage rates decided by the
board in one instance have been o f service in the arrangement o f
schedules by the parties in other cases. Thus the report for 1890 ( &)
notes that not infrequently manufacturers or employers had applied
to the board for copies o f wage lists recommended by the board in
cases some time before to be used in settling questions o f wages.
Besides the regular arbitration cases above, the board carried out
the arbitration procedure in 7 cases (twice in 1888, once each in
1890, 1892, and 1895, and twice in 1897) upon submission by one
party only. The applicant in each o f these cases was the work
people, and reference to the board was made 5 times without any
cessation o f work and twice after strikes had occurred. In 5 o f
the disputes the board made its decision public, but in one instance
publication was withheld at the request o f the work people and in
another the board informed the applicants that it did not deem a
formal decision necessary. Out o f the 7 cases, in 4, including 1 o f
the strikes, the board’s decision was accepted and terminated the
dispute, while in one strike and two other differences no settlement
was affected.
In the table above three disputes are recorded as terminated through
a public investigation made by the board; in all, 11 such investigations
have been undertaken, 5 in 1888,1 each in 1889 and 1890, 2 in 1895, 1
in 1896, and 1 in 1903. Only 1 o f these, that o f 1903, in the great
Lowell cotton-mills strike, was instituted independently o f any appli
cation from the parties, that being made by the board at the direc
tion o f the governor o f the State. O f the others, 5 were made at the
instance o f employers and 5 upon application from employees, and
all were begun after strike or lockout had occurred. Public hearings
were held in all but 3 cases, and the board’s findings were published
« Cf. Report o f United States Industrial Commission, Vol. V II, Testimony, p.
909.
» Page 13.

GOVERNMENT INDUSTRIAL ARBITRATION.

637

in every instance and were accepted by the parties in 3 (2 in 1888 and
1 in 1890) out o f the 11 cases.
Finally, concerning the work o f the Massachusetts board it is in
order to note the opinion and recommendation concerning it o f the
legislative committee on relations between employer and employed,
appointed in July, 1903, by the governor in accordance with a reso
lution o f the State legislature approved June 5, the committee having
made its report in January, 1904. It was made the duty o f the com
mittee to examine existing and proposed legislation in the Common
wealth touching the legal relations o f employer and employed, and
among other things a bill for compulsory arbitration came before it.
The committee reported strongly against any such measure and in
favor o f continuing the present system, as follow s:
In Massachusetts the work o f arbitration is by statute intrusted to
a State board, whose functions, though difficult and delicate, have
been increasingly useful. W e consider that in the matter o f labor
difficulties this increasing voluntary use o f the principle o f arbitra
tion is o f great promise for the future and that the State, in providing
efficient machinery for the carrying out o f the wishes o f the parties
to a controversy who may desire to arbitrate their differences, is per
forming invaluable service. Everything should be done to maintain
and increase the efficiency o f the board provided by the State for the
purposes o f arbitration and to encourage and make easy the submis
sion o f industrial differences to it. Whether substitution o f the form
o f an industrial court for the board as at present constituted would
lead to a larger and a more general use o f the opportunity afforded is
purely a practical question and may admit o f doubt. The committee
sees no reason to suppose that the change to judicial form would
increase the confidence now felt by the public in the present board o f
arbitration or increase the number o f cases submitted for adjudica
tion. W e recommend rather the continuance o f the present board,
with such modifications in the statutes relating thereto as may seem
directly to increase its dignity and usefulness as well as the simplicity
and ease o f method in the submission o f matters brought before it. "
*
*
*
$
• $
$
$
It is obvious that controversies do from time to time arise whose
effect upon the public interest is so momentous as to make the public
to all intents and purposes a third party to the controversy. This is
especially true where the difficulties in question involve the pro
duction or distribution o f the necessaries of life or the transportation
o f the people. In such instances we are far from believing that the
State should be precluded from some form o f intervention by a reluc
tance, however justifiable in principle, to interfere in private dis
putes. We are o f the opinion, however, that compulsory investiga
tion on the part o f the State, supplemented by a public finding as
to the merits o f the case, will accomplish the object, through its
appeal to the public, fully as effectively and without the objection
able interference with private rights and the often futile attempt at
arbitration under compulsion. Such investigation in cases where

638

BULLETIN OF THE BUREAU OF LABOR.

the controversy is such as to threaten the public interest is already
provided for by the statutes of Massachusetts, and furnishes an
important part o f the duties o f the State board o f conciliation and
arbitration. ( a)
In accordance with these recommendations the committee proposed
certain minor changes in the law, which resulted in the amendments
o f 1904, the most important of which have already been noted in con
nection with the analysis o f laws in the preceding chapter.
N E W JERSEY.

New Jersey was the third State to establish a State board of arbi
tration, which was done by act o f March 24, 1892. How much was
accomplished by the first board appointed under this law does not
appear. ( *6) That its record was not entirely blank is evidenced by
two cases o f action by it mentioned in the report o f the New York
board for 1893. ( c) In one the New Jersey board acted alone, in the
other (a railroad dispute) jointly with the New York board, the
strike in each case being terminated by the boards. But whatever
its record, this first board o f three members, appointed for five-year
terms at a per diem compensation, were after three years legislated
out o f office by the supplementary act of March 25, 1895, and a new
board o f five members, named in that law, with three-year terms and
annual salaries, were legislated into office.
Since 1895 there is a continuous record in annual reports of the
work o f the New Jersey board. Only for the years prior to 1901,
however, do the reports describe each case o f action by the board,
the information in later reports consisting only o f general statements
as to its work. The period to 1901, therefore, may be considered by
itself with advantage. An analysis o f the reports for these earlier
years shows that the board’s work consisted for the most part of
services offered, with but few cases of actual intervention or results
accomplished. The plan pursued by the board was to divide the
State into five sections, each member having charge o f a section and
offering the board’s services in every dispute coming to his notice,
the entire board being called together only in case o f special need,
though meeting once monthly to receive reports from each member.
From March, 1895, when the board was organized, to October 31,
1899, (*) the number o f disputes in which action by the board is
specifically reported was as follow s:
o Report, pp. 12,13.
6 No report o f this first board appears in the legislative documents o f the
State, although annual reports were required by the law.
o Report o f New York Board o f Mediation and Arbitration, 1893, pp. 184, 236.
The year 1900 is not included here for the reason that the annual report for
that year is now out o f print.

GOVERNMENT INDUSTRIAL ARBITRATION.

639

DISPUTES ACTED UPON BY THE NEW JERSEY BOARD OF ARBITRATION, 1895
TO 1899.
Year ended October 31.
1895 (7 months)
1896 ...............
1897 ...............
1898 ...............
TotalI

Cases acted
upon.

21
123

These figures do not include every case o f action, to judge by gen
eral remarks made in introductions to the reports. Thus the board
says, in 1895, that “ about a score ” of minor troubles were inquired
into, but it was found the board’s services were not needed. Likewise
the board reports, in 1897, that 68 strikes came to its attention and its
services were offered in every case, and in 1899 that 40 strikes came to
its notice. But o f the 123 cases in the table above some particulars
are given showing the nature of action taken and its results.
It is found that out o f the 123 cases, most o f which were strikes or
lockouts, all that was done in the case of 5 was to make inquiry con
cerning the facts, such inquiry being reported as made by a member
in person in but two instances. In 104 cases all the action reported
consisted o f a formal offer o f the board’s services, made as a rule by
mail, only 3 cases, in fact, being reported as made by one or more
members in person. Out of these 104 offers the employers in 4 ex
pressed a willingness to have the board act, and the laborers re
sponded favorably in 7, but in none did both accept. In 14 disputes—
I in 1895, 2 in 1896, 4 in 1897, and 7 in 1899— something more than
simple offer o f services is reported. In all of these the board’s action
was o f the nature of conciliation, no dispute ever having been sub
mitted to the board for arbitration and no public investigation of a
dispute ever having been made, though the latter was once requested
by employees. In 3 intervention was by the full board upon its own
motion, its efforts resulting in a settlement of the strike in one case.
In the other 11 disputes action was taken by one member alone and
upon his own initiative in all but three, request for action in those 3
cases coming from the work people. In 4 instances the mediation was
conducted by correspondence with the employer after the laborers
had accepted the member’s intervention, but in all these was unsuc
cessful. In 6 the member personally intervened and settled 4 o f the
disputes, in one case thereby preventing a strike. In the eleventh
case a member o f the board materially assisted in the adjustment o f a
general dispute in the glass industry without strike or lockout. Alto
gether, therefore, the reports show a total o f 4 strikes and 2 other dis-

640

BULLETIN OF THE BUREAU OF LABOR.

putes settled in four years and a half. During the five years 1895
to 1899, 250 strikes and lockouts occurred in the State. (a)
In part, at least, explaining **the above record o f the New Jersey
board are two facts. In the first place, as pointed out in the board’s
first report,(b) under the supplemental law of 1895 the members
receive only their salaries, with no allowance for traveling expenses.
It was supposed that they would receive free transportation from the
railroads, but the contrary proved true, so that the members have had
to pay any traveling expenses out o f their $1,200 salaries, a condition
o f things not calculated to stimulate personal intervention outside o f
their places o f residence. The same lack o f any fund for expenses is
complained o f by the board in 1898 ( c) as standing in the way o f
formal investigations o f the causes o f disputes, although it was at
the same time claimed that no case had arisen in which such investi
gation was necessary.
In the second place, and more important, is the narrow construc
tion the board has put upon its powers o f independent intervention
in disputes. It is repeatedly asserted in the reports (d) that the board
has no power to go further upon its own initiative than a simple offer
o f services, and that “ if either does not wish to accept the offer, we
have no authority to go any further.” This, it must be said, hardly
seems to correspond with the plain meaning and intent o f the law,
which directs that “ whenever a strike or lockout shall occur or is
seriously threatened in any part o f the State, and shall come to the
knowledge o f the board, it shall be its duty to proceed, as soon as
practicable, to the locality o f such strike or lockout and put itself in
communication with the parties to the controversy, and endeavor by
mediation to effect an amicable settlement o f such controversy.” ( e)
In March, 1901, there was a reorganization o f the New Jersey
board with appointment o f 4 new members out o f *the 5 on the
board. But the annual reports of this board for 1901, 1902, and
1903 (year ended October 31) show no larger results accomplished
than in earlier years. The three reports give lists o f industrial dis
putes which came to the notice o f the board (with brief details of
each, without reference, however, to the board’s action in any case),
which show a total o f 379 for the three years—4? in 1901 (seven
months for the new board), 95 in 1902, and 237 in 1903. O f the
action taken in these cases, the 1901 report states:
The board has attended a number o f meetings o f the strikers and
individual members o f the board have addressed such meetings. The
a See Sixteenth Annual Report o f United States Commmissioner o f Labor, pp.
88,558.
&Report, 1895, p. 5.
c Report, 1898, p. 6.
d See, for example, Reports, 1897, p. 3 ; 1898, p. 6.
* A ct o f 1892, sec. 10.

GOVERNMENT INDUSTRIAL ARBITRATION.

641

board has also conferred with the manufacturers and their counsel
and has offered its services for the purpose o f mediation or arbitra
tion to those interested in the various local labor disturbances occur
ring in this State. * * * In no case was the assistance o f the
board requested, and where its good offices were offered the usual
reply on the part o f the employers was declination because there was
nothing to arbitrate. The employees also were generally disinclined
to accept the proffered aid until further developments had occurred.
In none o f the controversies was there any inclination by both parties
to allow the board to mediate.
The 1902 report states only that—
The board has held its periodical meetings during the year, and in
the strikes which have come to its notice * * * it has en
deavored, as far as was practicable and advisable, to offer its good
services in the spirit o f mediation to both parties concerned.
Similarly the report for 1903:
While none (o f the disputes) has been arbitrated or investigated,
on its own initiative the board has offered its mediatory services
wherever practicable, and it is believed in some cases with good
results.
The board’s comment on its work in all three o f these latest reports
show plainly that the explanation o f the meager record o f results
accomplished is precisely the same for the years since 1900 as before,
namely, disinclination to intervene aggressively on its own motion for
conciliation purposes and the handicap o f no means o f paying expenses
for purposes either of such intervention or for independent investiga
tion o f disputes. The latter—lack o f means to make formal investi
gations—the board declared both in 1902 and 1903 to be a serious
obstacle in its work, and legislative action was urged to remedy the
defect. “ This defect,” says the 1902 report, “ virtually has reduced
the board to one o f mediation or to a tribunal taking cognizance of
cases voluntarily submitted to it. Experience has proved that such
cases are rare and that mere mediation generally is o f little efficacy
in bringing industrial disputes to a close.”
OHIO.

The first State board in Ohio was organized for work on May 29,
1893. As may be seen by the table below, which covers all the cases
set forth in, the published reports, (a) the board’s work— 144 out of
160 cases for the ten and one-half years—has been for the most part
with strikes or lockouts. Small disposition on the part of employ
« From general statements made in the reports (1898, pp. 1 0 ,1 4 ; 1903, p. 7 and
elsewhere) it appears that the board has dealt with some minor cases not
described in the reports. Apparently, however, all the more important cases
o f action are reported and here included.
50—No. 60—05

m ----- 17

642

BULLETIN OF THE BUREAU OF LABOR.

ers and employees to appeal to the board is shown in the figures, such
as there is appearing chiefly among the work people. Further, the
table shows that while the board has had to depend upon its own
initiative for intervention in disputes, the provision o f law similar to
that in Massachusetts, requiring mayors of cities and judges o f
probate courts to inform the board o f existing or threatened strikes
or lockouts, has not been of any considerable assistance. The cases
o f notice from such officials, given in but a single instance before
stoppage o f work had occurred, have been so few as to call forth
repeated complaints from.the board, but with little effect, apparently,
toward increased cooperation on the part o f local authorities.
IN ITIA TIV E IN CASES ACTED UPON BY THE OHIO BOARD OF ARBITRATION,
1893 TO 1903.

Cases in which action was taken upon initia
tive of—
Year.
Board.

Em
ployers.

Work
people.

Both
parties.

1893(a).....................
1894.........................
1895..........................
1896..........................
1897..........................
1898..........................
1899..........................
1900..........................
1901..........................
1902..........................
1903..........................

2
6
11
9
14
15
18
11
15
18
18

1
1
1
1
1

T ota l.............

137

1
1
2

Total.

1
1

1
4

Notices
received
from
Before
After m ayoror
strike or strike or probate
lockout. lockout. judge.
Interventions.

6
9
12
11
16
17
20
12
17
20
20

3
1
3

3
8
10
9
14
17
17
11
14
17
19

139

1
2
2
b2
8

160

3
3

3
1
4

« Seven months.
* Strike or lockout occurred later in 1.
c Strike or lockout occurred later in 2.

During the eight years a little over one-third o f the cases o f inter
vention by the board were successful, all but 6 o f the 59 such ter
minating disputes after stoppage o f work had occurred. The num
ber o f strikes and lockouts settled by the board down to 1901 was as
1 to 25 o f the total number which occurred in the State.
DISPUTES SETTLED BY THE OHIO BOARD OF ARBITRATION, 1893 TO 1903.

Year.

1893..............
1894...............
1895..............
1896 ___ __
1307
1898.........
1899................

Disputes
settled
without
strike or
lockout.
1
1
1

Total
Strikes
and lock strikes and
outs set lockouts in
State, (a)
tled.
2
3
4
5
7
4
7

102
107
no
109
71
91
154

Year.

Disputes
settled
without
strike or
lockout.

Strikes
Total
and lock strikes and
outs set lockouts in
tled.
State, (a)

1900...............
1901................
1902...............
1903................

1
1
1

3
4
7
7

T otal..

(b)

(6)
(b)

• See Sixteenth Annual Report of United States Commissioner of Labor, pp. 96, 562.
* Not reported.

134

643

GOVERNMENT INDUSTRIAL ARBITRATION.

The action taken by the Ohio board has from the first been almost
entirely that of conciliation, and since 1896, with but a single excep
tion, no other procedure appears in its practice, as shown below.
STRIKES AND LOCKOUTS ACTED UPON BY THE OHIO BOARD OF ARBITRATION,
BY METHODS AND RESULTS, 1893 TO 1903.

Year.

Total
cases
acted
upon.

1898...........
1894...........
1895...........
1896...........
1897...........
1898...........
1899...........
1900..........
1901...........
1902..........
1903..........

6
9
12
11
16
17
20
12
17
20
20

Total.

160

Cases of conciliation.
Prelimi
nary
action Success Unsuc
only.
cessful. Total.
ful.

Decision on sub
Public
Arbitra- mission by one
investi
tion (all
party.
gations
success
(success
fu l).
Success Unsuc
ful).
ful.
cessful.

3
7
9
3
3
3
2

4
3
«7
4
7
4
5
8
6

4
3
3
6
6
4
5
9
9
11

3
6
7
6
13
10
11
9
14
17
17

&51

113

1
5
2

1
1

1
2

° One case settled by local arbitration on recommendation of the State board.
b Two cases settled by local arbitration on recommendation of the State board.

The board succeeded along conciliation lines in nearly one-half
the disputes where positive negotiations o f that character were insti
tuted. Three times only were differences brought to the board for
arbitration by joint agreement of the parties, the board’s award
terminating the dispute in each case. In two of these the arbitration
occurred after a suspension of work, while in the other there was
no interruption o f employment. In four instances (once in 1893,
twice in 1894, and once in 1903) the board investigated and rendered
a decision as in arbitration, but with submission o f the case by one
party only, twice by work people after strikes had occurred, once by
employers in a controversy not involving strike or lockout, and once
by employers in a strike, there being in this last instance an existing
agreement o f the parties to submit differences to arbitration. In two
of the strike cases both parties attended the hearing; in the other the
men only, but in the latter and one o f the former the proceedings
failed to terminate the dispute, once because the employers refused
to accept the board’s recommendation and once because both declined
it, the last being the only case of procedure of this sort in which
publication o f the board’s decision is mentioned in the reports. In
both the differences (one strike and one other) submitted by the
employers the board’s findings were accepted by the employees, and
the controversy so ended.
Twice only in the ten and one-half years did the Ohio board under
take formal investigation to determine causes and fix responsibility
for disputes. Both were in cases of strike, and both were requested
by the work people. In both instances, also, the hearings were never

644

BULLETIN OF THE BUBEAU OF LABOB.

completed, because the parties came to an amicable agreement in the
course thereof. In this connection it is worth noting that although
the Ohio board has never undertaken an authoritative investigation
independently o f the parties, its report for 1895 (a) mentions two
cases which in its judgment called for such action, but the board
found itself at the time without means for paying the expenses
thereof.
WISCONSIN.

Pursuant to the law approved April 19, 1895, the Wisconsin State
board o f arbitration and conciliation was organized on July 1, 1895.
The first biennial report o f the board, made in January, 1897, shows
very meager results accomplished for the first eighteen months o f
the board’s existence. This was due to the board’s uncertainty as to
its power o f intervention upon its own initiative. “ While the law
seems to give the board,” says the first report,^) “ the privilege o f
offering their services wherever and whenever it is known that there
is trouble impending, yet it has seemed to be the opinion o f some
that it would be something o f an impertinence to offer our services
in advance o f their being called for.” The direction o f the law
in the matter was that the board should “ endeavor by mediation
to effect an amicable settlement ” upon receipt o f knowledge from any
source o f a threatened or existing strike or lockout “ which threatens
to or does involve the business interests o f any city, village, or town.”
The indefiniteness o f this last clause may have raised doubt as to
what would otherwise be a very definite direction to intervene inde
pendently. But whether so or not the board, as a matter o f fact,
kept on the conservative side and took action only upon notice from
the parties or from town or city officials, the latter being required,
as in Massachusetts and Ohio, to notify the board o f threatened or
existing strikes or lockouts. Inasmuch as during the first eighteen
months but four notices were received by the board, all from mayors
o f cities, that interpretation o f the statute opened the way for but
very limited activity.
Accordingly, the board in its first report recommended that the
law be amended, first, so as to make its power o f initiative perfectly
clear, and, second, so that notices to the board might be addressed to
the governor and by him communicated to the board to avoid the
difficulty o f reaching the board owing to the fact that its members
were “ employed daily in their chosen occupations, and their respec
tive addresses have not been known to the public generally.” ( c) By
an amendment o f April, 1897, these two suggestions were incor
porated in the law.
« Pages 88, 89.

&Page 3.

c First

Biennial Report, p. 4.

645

GOVERNMENT INDUSTRIAL ARBITRATION.

The result o f this amendment was a very much larger activity on
the part o f the board, not, however, because o f more frequent notice
from city officials or applications from parties in dispute, but due
entirely to the initiative o f the board. Aside from the four cases
in the first report (one in 1895 and three in 1896), but one other
instance (in 1898) o f notice from city or town officials is mentioned
in the reports, and only one instance (in 1898) is reported in which
one o f the parties (an employer) called upon the board to act.
The work o f the Wisconsin board, down to June 30, 1904, as
revealed by the cases set forth in its biennial reports, may be thus
summarized:
DISPUTES ACTED UPON BY THE W ISCONSIN BOARD OF CONCILIATION AND
ARBITRATION, 1895 TO 1904.
Oases acted upon by
b o a rd Year ended—

December 31,1895b
December 31,1896.
December 31,1897.
December 31,1898.
December 31,1899.
December 31,1900.
September30,1901<z
September 30,1902
June 30,1903...........
June 30,1904...........
Total............

Before A fter
strike strike
or lock or lock
out.
out.

CO
cl
e2

1
9

Positive interventions.

Prelim
inary
Successful in—
action
Unsuc
only.
Total.
Strikes Other
cessful. or
lock
dis
Total.
outs.
putes.

1
3
4
13
11
15
7
10
13
9

1
3
9
14
11
15
9
10
14
9

5
8
4
5
3
1
6
2

1
3

1
1
3
5
9
5
9
6
4

3
2

1
1

Total
strikes
and
lockouts in
State.
(«)

8
8
4
5
3
1
7
2

(/)

32
13
28
29
53
40

(/)

a Sixteenth Annual Report of the United States Commissioner of Labor, pp. 116, 574.
6 Six months.
c Strike occurred later in 1 case.
* Nine months.
9 Strike occurred later in 2 cases.
f Not reported.

The work has been entirely that o f concilation, no case o f arbitra
tion or formal investigation o f the causes o f disputes being reported.
It has dealt almost exclusively in the reported cases with strikes or
lockouts, with very few cases reported o f disputes settled before that
stage. (a)
IL LIN O IS.

The establishment .of the Illinois board o f arbitration was inspired
chiefly by the great Chicago strike of 1894, which led to the introduc
tion o f numerous bills for the settlement o f industrial disputes in the•
• From a general remark in the introduction to the second report (p. 4) it
would appear that some work in the way o f settling disputes before suspension
o f work may have been done which is not reported in full. Evidently such cases
were o f very minor importance, however, and the reported cases as above seem
to fairly represent the board's work.

646

BULLETIN OF THE BUREAU OF LABOR.

State legislature o f 1895, and finally to the inclusion o f that subject
in a call for a special session o f the legislature which passed the law
o f August 2, 1895. Under this a board was promptly appointed and
organized on August 14.
Not the least interesting o f the results in practice in Illinois are the
changes which were made in the law by the amendments of April 12,
1899, and May 11,1901. The amendment o f 1899 touched four points^(1) jurisdiction o f the board; (2) prompt information of disputes;
(3) power to secure evidence; and (4) enforcement o f awards. Con
cerning the first o f these, the original law had restricted the board’s
jurisdiction to disputes involving establishments with not less than 25
employees. It was found in practice, however, that some important
disputes involved no one establishment with as many as 25 hands,
though involving several smaller firms. A t the board’s instance,
therefore, the limitation was altered so as to exclude only disputes
involving less than 25 work people altogether, whether in one or
several firms.
After experiencing the same difficulty as other State boards in
securing early information o f disputes the Illinois board secured the
incorporation into its law not only o f the provision found in other
States requiring mayors of cities and presidents o f towns and villages
to notify the board of impending or existing strikes and lockouts, but
also o f a requirement, found nowhere else, that presidents o f labor
organizations shall notify the board of actual or threatened strikes or
lockouts involving any o f their members. It does not appear, how
ever, that this amendment was of any considerable benefit. The
annual reports for the next three years mention seven cases of such
notice received (all in 1901-2), four times from local authorities,
twice from union officers, and once from both sources, and all given
after stoppage o f work had occurred.
The original law o f 1895 gave the board power to issue subpoenas *
to secure the presence of witnesses or the production o f books con
taining records o f wages paid, but specified no means o f making
such subpoenas effective in case anyone saw fit to ignore them. In
their report for the year ended March 1, 1898, the board pointed out
this fact and suggested that although no such difficulty had actually
arisen in their experience, nevertheless it would be well if the law
were so amended as to enable the board to invoke the aid of the
courts should such a contingency arise. Before the close o f the year
added force was given to this recommendation by the employers in a
serious dispute refusing to testify before the board and completely
ignoring its subpoenas. Accordingly the governor of the State in
his next annual message (1899) recommended legislation in line with
the board’s suggestion, the result being the amendment o f 1899,

GOVERNMENT INDUSTRIAL ARBITRATION.

647

which requires circuit or county courts when applied to by the board
to compel obedience to the board’s subpoenas. (a) The amendment
also permits the board to require the production, not only of record
books o f wages, but any other books and papers deemed necessary.
The report o f the board made in March, 1900, stated that no occasion
for appeal to the courts had arisen up to that time, all witnesses
desired having responded promptly, and no such appeal is mentioned
in the reports down to 1903.
Another subject to which the board called attention in 1898 was
the question o f power to enforce its awards, the matter being brought
up by a case during the preceding year in which one party to a joint
application refused to abide by the board’s decision. The law simply
declared that such decisions should be binding for six months, or
until one party withdrew from it after sixty days’ notice. In re
sponse to an inquiry by the board the State’s attorney-general gave an
interesting opinion to the effect that—
The decision o f the board upon application joined in by both parties
would be in the nature of an award made by arbitrators chosen by
the parties, and usually such awards are enforced by suits at law in
the courts o f the county in which the parties reside * * *. Each
case, so far as the remedy is concerned, must depend upon its own
peculiar facts and circumstances and resort be had for enforcement
either to a court of law or to a court of equity, as such facts or cir
cumstances may warrant; but usually I think the remedy must be
found in a court o f law in the courts o f the county where the parties
reside. ( 6)
The board, however, was o f the opinion that resort to such judicial
process for the enforcing of a decision was usually unnecessary.
Cases o f refusal to abide by arbitrator’s decisions both in Illinois and
in other States were rare and they could find no case in other States
where enforcements o f awards by judicial process had been attempted.
“ A t the present time,” concludes the board ,(c) “ we are not prepared
to recommend legislation which would give this board specific power
to enforce its decisions through the medium o f the courts. We doubt
both the practicability and the wisdom o f the exercise o f such power.”
Three months after this report was made, however, the board was
called upon to render a decision on joint application of the parties
in the famous Virden coal dispute. The board’s award was disre
garded by the operators, which action was followed by a continuance
o f the dispute and ultimately rioting and bloodshed. This startling
exception to the general experience quoted by the board in its recom
mendation, led the governor o f the State to urge in his message to
« Of. supra, p. 595.
* Report o f the Board o f Arbitration, 1898, p. 12.
c Idem., p. 13.

648

BULLETIN OF THE BUBEAU OF LABOB.

the legislature o f 1899 that some provision be made for enforcing
awards, the result being the most important portion o f the amending
act o f 1899, whereby provision is made for the punishment of parties
infringing the board’s awards by circuit or county courts. (a) Up
to July, 1902, no case is reported in which this power o f enforcement
was invoked.
The amendment o f 1901 first gave the Illinois board power of
formal investigation into disputes. Such authority was recom
mended by the board in its 1899 report, but general considerations
rather than any special experience appear to have inspired the
amendment. Prior to 1901 the board could carry out the arbitration
procedure, involving investigation and rendering o f a decision, if
either party so requested, but under the amendment the board may
proceed independently o f the parties and formally investigate and
publish findings. One restriction was put upon this power of inde
pendent investigation in Illinois, however, which does not appear in
other States, in that it may be exercised only when in the majority
opinion o f the board “ the general public shall appear to suffer injury
or inconvenience ” from the dispute.
The reports o f the Illinois board for 1900 and 1901 differ from
those o f other years in that they set forth, with a single exception (an
unsuccessful conciliation case in 1900), only the cases o f formal arbi
tration or decision rendered on application o f one party. The follow
ing table, therefore, summarizes the work only for 1896 to 1899, and
for 1902, ( 6) for which years the action taken is more fully described.
The reports for these years, it is to be noted, do not set forth more or
less informal work done by individual members, but they apparently
contain all the more important cases of action, and those included are
expressly stated to be representative o f the board’s work.
Cf. supra, p. 601.
®Requests for reports o f later years addressed to the board have not been
answered.
a

649

GOVERNMENT INDUSTRIAL ARBITRATION.

DISPUTES ACTED UPON BY THE ILLINOIS BOARD OF ARBITRATION, 1896 TO
1899 AND 1902.
Year ending March 1—
1896. («) 1897. 1898. 1899. 1902. (&)
Interventions by board:
On its own initiative........................................................
A t request of—
Em ployers______________________ ____ - ...............
W o rk p e o p le .___ ________________________ __
Both parties......................... ........... ..........................

XlMjaii.

1
7

i
3

6
1

1
16
5

8
68

Total interventions...............................................

Interventions:
Before strike or lookout___________ _ ___________
A fter strike or lockout...................................................
Total strikes and lockouts in State (d).............. ................
Preliminary action only........................................................

11
124
2

7
291
1

4
7
154
3

1
14
168

Cases of conciliation:
Successful..........................................................................
Unsuccessful.....................................................................

4
6

3
1

29
(e)
V ^4

4
2

4
6

14
9

29
24
53

T o ta l........................................................................

Cases of arbitration:
Successful..........................................................................
Unsuccessful.....................................................................

1
1

---

T o ta l.........................................................................

1
1

1
2

Decisions upon submission by one party resulting in—
Settlem ent.........................................................................
N o settlement...................................................................
T o ta l.........................................................................
Differences settled before strike or lockout.....................
Strikes and lockouts settled................................................

Total disputes settled by board.........................

1
4

Six months.
6 Seventeen months— March, 1901, to July, 1902.
0 Strike occurred later.
a See Sixteenth Annual Report of United States Commissioner of Labor, pp. 60, 546.
Figures are for the calendar years 1895-1899.
e Not reported.
f Chairman of State board acted as umpire on local board of arbitration in demarcation
dispute between two unions.
a

In addition to the 8 arbitration cases above, there were 3 others
in 1900 and 2 in 1901, making a total o f 13 for the seven years 1896
to 1902. A ll o f these were successful, save 1 each in 1898 and 1899.
In 4 o f these successful arbitrations no stoppage o f work occurred,
while in the 7 others the submission to arbitration was not made
until after strike or lockout. O f the 2 cases o f arbitration which
resulted in failure, in that of 1898 the board’s decision was rejected
by the working people, and they immediately went on strike, the
application in this case having been made by the parties before
stoppage o f work had occurred. Within a few hours, however,
the strikers reconsidered their action and returned for work, only to
find their places filled by new hands, and the best they could secure
was the promise o f preferment in case o f vacancies. The case o f 1899
was the famous Virden dispute already alluded to. Although mining
operations had been resumed pending the board’s decision, as re

650

BULLETIN OF THE BUBEAU OF LABOB.

quired by law, that decision when rendered was rejected by the emr
ployers, and the lockout was resumed.
Three cases o f arbitration procedure on application by one side
only are reported for 1900 and 1901, making a total o f 6 for the en
tire seven years. In the two 1900 cases no settlement o f the dispute
was effected, while the decision rendered in 1901 settled the contro
versy, so that in 2 out o f the total o f 6 cases such procedure re
sulted in settlements. The submission o f the dispute to this procedure
was made five times by work people after suspension o f work, and
once by employers in a difference not involving strike or lockout.
The two cases settled were both strikes. O f the others, in three
instances the decision was rejected by the party not making applica
tion, though the applicants were ready to abide by it, while in one
case the employers who had refused to join in the application accepted
the award, but the work people who had applied for it rejected it.
One feature o f the work o f the Illinois board since 1901 is quite
unique and worthy of particular mention. In the year just men
tioned there was a general reorganization o f the board, and the new
board adopted the plan of holding frequent meetings with employers
and work people in Chicago, the chief seat o f labor controversies in
the State, in the absence of any disputes, and simply for the purpose
o f bringing the board into touch with the two industrial classes, so
as to pave the way for more efficient service when differences should
arise. The 1902 report, (a) which notes the adoption o f this plan,
records it as having proved o f benefit to the board in its work.
IN D IA N A .

The Indiana labor commission was organized for work on June 17,
1897, three months after the act establishing it became a law. Four
biennial reports o f the commission set forth quite fully the work done
to the end o f September, 1904. Interventions in 148 disputes during
the seven and a quarter years are set forth in detail. In addition to
these, the first report mentions that the commission during 1897-98
had succeeded in having two boycotts declared off and in five other
instances had prevented strikes by early intervention, no accounts o f
which were published, in accordance with the expressed wish of the
parties in most o f the cases. The second report also notes two wide
spread controversies in the State during 1899-1900, one between d if
ferent branches o f the organized window-glass workers and one be
tween union and nonunion glass-bottle blowers, in both o f which,
although not disputes between capital and labor, the commission
made repeated efforts at mediation, but without success. The third
report (for 1901-2) explains that the recital is incomplete “ for the

©Page 7.

GOVERNMENT INDUSTRIAL ARBITRATION.

651

reason that many employers, and workmen as well, prefer to have
their business affairs adjusted without what they regard as the
unpleasant notoriety which publication would give them. This is
especially true where, as a board o f arbitration, the commission’s
services have been invoked to fix wage contracts at times when no
strike or lockout was contemplated, but to establish conditions prece
dent to starting new enterprises or at the beginning o f a working
season, so as to make such settlements matters o f official record, and
thereby give to them the legal status provided for in section 9 o f the act
creating and governing the labor commission. An additional reason
for the incompleteness o f this report is that in a number o f instances
negotiations are still in progress and no complete statement o f them
can be made until they will have been consummated.” (°) Notwith
standing these statements, however, it would seem only reasonable,
from the nature o f the cases that are reported, to infer that the 148
disputes described in the four reports include all the more important
cases o f action by the commission, a view to which support is given
by the fourth report (1908-4), which makes no mention o f other cases
dealt with by the commission, but explains that “ all the industrial
troubles that have occurred in the State during the two years ” are
not reviewed because “ there are still times when two or three prevail
simultaneously in different localities, often remotely situated,” in
which case “ it is the aim to render official aid where it seems most
imperative.” ( 6)
An analysis o f the 148 detailed cases shows that in the great major
ity the commission took the initiative for intervention, and that so
far as the parties in dispute did so the work people were the most
frequent applicants to the board. In every instance but four the com
mission’s intervention occurred after work had been interrupted by
strike or lockout. In 45 cases the reports show nothing done by
the commission save to inform itself o f the facts in the dispute.
The action taken in all the other cases save two was in the nature
o f conciliation, those two being the sole instances o f arbitration (so
far as reported) by the commission during the period. In one of
these arbitrations submission was made by the work people only; in
the other by both sides jointly. In one other dispute the parties had
agreed to arbitration, and the judge o f the local court had been sum
moned to sit with the commission, as required by law, but upon the
board’s assembling to begin the hearing it was found that the
employers had reconsidered and refused to proceed, wherefore the
arbitration had to be abandoned. No special investigation for the
purpose o f authoritative determination o f the facts for publication,
as provided for in the law, was undertaken.
a Report 1901-2, p. 5.

&R eport 1903-4, p. 5.

652

BULLETIN OF THE BUREAU OF LABOR.

In 63 per cent o f the cases in which positive efforts for a settlement
are reported the commission was successful. Both the arbitrations
were among these successful cases. O f the 4 cases in which the inter
vention occurred before stoppage of work, in 2 the differences were
adjusted without strike or lockout— 1 in 1898 by arbitration, and 1
in 1901 by conciliation; in 1 instance, in 1901, the commission’s efforts
were unsuccessful, and a strike occurred later; while in the fourth
case no strike or lockout occurred, but the dispute was in the nature
o f a boycott, in which the commission was unable to bring about a
settlement.
The work o f the Indiana commission is set forth by years in the
following summary:
STATISTICS OF WORK DONE BY THE INDIANA LABOR COMMISSION, 1897
TO 1904.
Interventions in disputes on initia
tive of—
Year ended—

Com
mis
sion.

Em W ork Both
ploy people.
ers.

Interven
tions—

Total
strikes
and
Before A fter lock
strike strike outs in
Total. or
lock orlock State.
out.
out.
(«)

October 81,1897 (&)...
October 31,1898........
October 31,1899........
October 31,1900.........
September 30,1901(c)
September 30,1902...
September 30,1903...
September 30,1904...
Total.................

Year ended—

d2
124

Cases of
informal in
vestigation
only.

144

148

Conciliation cases.
Success Unsuccess
ful.
ful.

Arbitrations
(successful).

Total.

October 31,1897 (b) - - October 31,1898.........
October 31,1899.........
October 31,1900-----September 30,1901 («)
September 30,1902
September 30,1903...
September 30,1901__

4
2
5
5
7
6
8
8

4
17
14
7
10
6
4
1

1
5
4
13
5
4
5
1

5
22
18
20
15
10
9
2

Total.................

101

ft Sixteenth Annual Report of United States Commissioner of Labor, pp. 69, 550.
ures are for calendar years.
6 Four and one-half months.
c Eleven months.
d Strike occurred later in one case.
• Not reported.
t Arbitration procedure on submission by workers alone.

1
fl

2
Fig

Not a little o f the time o f the Indiana labor commission during the
years 1899 to 1903 was consumed in the fulfillment o f duties outside
o f its chief function o f State conciliator and arbitrator in industrial
disputes. By an act o f 1899 («) weekly payment of wages was re
quired o f all employers in Indiana. The enforcement o f this law lay
with the State factory inspector, but one clause provided that the

« Laws o f 1899, chap. 124.

658

GOVERNMENT INDUSTRIAL ARBITRATION.

labor commission might, after notice and hearing, exempt from the
requirement o f weekly payments any employer whose employees pre
ferred a less frequent payment of wages if in the commission’s opin
ion the interest o f the public and the employees would not suffer
thereby. This law was finally declared unconstitutional by the
supreme court o f Indiana, but during the years 1899 to 1903, while it
was in force, 84 cases under it came before the labor commission,
whose report for 1899 and 1900 noted that the investigation and deci
sion of such cases had involved for the commission many miles o f
travel and many conferences with employers and employed.
M ISSOURI.

Under the Missouri law o f 1901 a board o f mediation and arbitra
tion was appointed in May o f that year. Two biennial reports o f
this board set forth its work up to the close o f 1904, and therefrom
the following summary o f the various cases acted upon, by years, has
been compiled:
STATISTICS OF WORK DONE BY MISSOURI BOARD OF MEDIATION AND ARBI
TRATION, 1901 TO 1904.
Number of interventions—
Year
ended No Total cases
vember reported.
30-

Before
strike or
lockout.

1901(a) —
1902—
1908___
1904-----

On initiative of—

A fter
strike or
lockout.

Board.

Employers.

W ork
people.

Both
parties.

" !
57

Total.

(*)»

Number of cases of—

Prelim
inary
action
only.

Year.

in
Decision on sub Independent
vestigation and
mission by one
Total
d
e
c
isio
n
b
y
settle
Arbitra sid e, resulting
board, result ments.
in—
tion (suc
ing in—
cessful).
Settle No set
Success Unsuc
Settle No set
ful.
ment. tlement. ment. tlement.
cessful.
Conciliation.

1901 ( a ) ...
1902...........
1908...........
1904..........

i
11

1
5
4

3
3
7
3

Total.

° Seven months.

3
2
7

1
1
1
1

1
1
3
1

2
2

4
9
9
1
23

6 Settled by conciliation without strike or lockout.

In addition to the above, mention should be made o f one case o f
intervention—in May, 1903—not described in detail in the report.
The board’s statement is simply that in view o f the fact that the labor
situation in St. Louis appeared to be threatening a meeting was held
there and conferences had with a number o f labor leaders and em
ployers, with the result that “ we believe some troubles which threat

654

BULLETIN OF THE BUBEAU OF LABOR.

ened were amicably adjusted by the men and their employers as the
result o f these conferences.” Except for this one instance it would
appear that the cases summarized above include all the work done
by the board.
The most notable feature o f the work o f the Missouri board is the
frequent use o f the method o f formal hearing o f evidence and render
ing o f a decision or opinion as a means o f inducing settlements, such
procedure in one form or another having been adopted in one-third
o f the total number o f interventions reported. In seven such cases
the procedure was arbitration in regular form with submission by
both parties, all o f the seven cases being strikes, in but one o f which
was work resumed pending the decision, though all seven disputes
were terminated by the decisions when rendered.
In 10 cases the board conducted hearings and rendered decisions
when only one o f the parties was willing to submit to the board’s
arbitration. In three o f these it was the employers and in seven the
work people who expressed their willingness to submit the case to
decision by the board, but both parties submitted evidence at the
hearings in all o f these cases save twice, when the employers refused
to give testimony, and possibly one other instance in which this point
is not clear from the report, though apparently both sides gave evi
dence in this case also. Four o f these one-sided arbitrations resulted
in a settlement o f the dispute, twice as the result o f immediate accept
ance o f the board’s findings by the employers who had declined arbi
tration and twice by agreement o f the parties following the rendering
o f the decision, once explicitly with the board’s findings as the basis
o f agreement and once apparently as direct result o f the decision,
though the parties made their own terms. In the other six cases of
submission by one side only no settlement was effected, three times
through rejection o f the decision by the party which declined arbi
tration, once because both parties rejected the findings, and twice
because the procedure was blocked as result o f the refusal o f the
employers to testify.
Twice it appears that the board investigated disputes and rendered
a decision or finding independently o f any submission by the parties,
and in both instances such decision led to an immediate settlement
by the parties, once through prompt acceptance by the employer o f a
finding favorable to the employees and once by a conference o f par
ties, as recommended by the board. Not less notable than the two
cases in which the investigation was carried out to a decision is
another case (in 1903), in which the expressed intention o f the boai*d
to make such an investigation definitely caused the parties to get
together and settle their dispute, for which purpose they'asked a
postponement o f the first hearing by the board. This case is counted
in the summary above as settled by conciliation.

GOVERNMENT INDUSTRIAL ARBITRATION.

655

The inclination o f the Missouri board to use freely its authority for
purposes o f arbitration or investigation makes all the more significant
the decision o f the supreme court o f the State in 1904 (noted in the
analysis o f State laws, supra, p. 596), which deprived the board o f its
power to compel the presence and testimony of witnesses. The spe
cial power for this purpose in the amendment o f 1903 was given the
board upon its own recommendation made in its first report, the
special occasion therefor having been apparently the board’s experi
ence in the very first dispute in which it intervened in 1901. The
work people had agreed to arbitration by the board, but the employers
refused on the ground that the law creating the board was unconsti
tutional. When the board attempted to proceed without the em
ployers’ submission, the latter’s witness refused to testify and was
committed for contempt. Upon habeas corpus proceedings the case
was taken to the circuit court in Kansas City, where the law was
upheld, but with doubts expressed as to the constitutionality thereof,
and the decision was given against the employers expressly in order
that the case might be taken to the supreme court for decision. The
employers thereupon appealed to the supreme court, but withdrew the
case before a decision could be rendered, as a result o f the settlement
o f the strike. This is the only instance reported by the board in
which its powers to compel testimony was invoked until 1904, after
its authority in that direction had been amplified by the 1903 amend
ment. Then again the board attempted to proceed after the workers
alone had expressed willingness to arbitrate, and again with an
appeal by the employers to the supreme court against the board’s
effort to compel their testimony, this time with the result that, to
quote the board’s second report,(a) “ these amendments, conferring
upon the board the power which seemed so necessary to its efficiency,
were declared unconstitutional by that tribunal.” “ The effect of
that decision,” continues the report, “ has been to practically end the
usefulness o f this board unless it was possible for the board to induce
both sides to a controversy to submit their differences to it for arbi
tration. Knowing how difficult it is to secure such an agreement in
any case where misunderstandings have been aggravated by unwise
action and unreasoning prejudice, this board has in the past six
months (the balance o f the official year 1904 after the supreme court
decision) refrained from exercising the functions to which it was
appointed.” Still believing, however, in the value o f such functions,
the board recommended that the State constitution be so amended as
to make it possible to give the board power to compel the attendance
and testimony o f witnesses.

aPage 4.

THE EIGHT-HOUR LAW AND ENFORCED LABOR CONTRACTS IN
THE PANAMA CANAL ZONE.

The undertaking o f the construction o f the Panama Canal by the
Government o f the United States raises certain questions as to the
application o f the laws o f the United States to laborers and employees
within the Canal Zone. Two o f these questions, relative to the eighthour law o f August 1, 1892, and the enforcement of the labor con
tract, have recently been considered by the Attorney-General o f the
United States, and the following is presented as setting forth the con
clusions reached:
On March 21,1905, the Secretary o f War addressed to the AttorneyGeneral the following questions:
1. Do the provisions o f the act approved August 1, 1892 (27 Stat.,
340), entitled “ An act relating to the limitation of the hours o f daily
service o f laborers and mechanics employed upon public works o f
the United States and the District o f Columbia,” apply in the in
stance o f public works constructed in territory outside o f the terri
torial limits o f the United States as they existed at the time said act
was passed?
2. Do the provisions o f said act apply to the office force o f the
Isthmian Canal Commission stationed on the Isthmus o f Panama,
and the employees o f the government o f the Canal Zone ?
The opinion is prefaced by a definition o f the relations of the Canal
Zone to the United States and an inquiry as to legislation affecting
it, from which the following is quoted:
By the act approved June 28,1902 (32 Stat., 481), the President was
“ authorized to acquire * * * for and on behalf o f the United
States * * * perpetual control o f a strip o f land * * * not
less than six miles in width, * * * and to excavate, construct,
and to perpetually maintain, operate, and protect thereon a canal
* * * ; and also jurisdiction over said strip and the ports at the
ends thereof; to make such police and sanitary rules and regulations
as shall be necessary to preserve order and preserve the public health
thereon; and to establish such judicial tribunals as may be agreed
upon thereon as may be necessary to enforce such rules and regula
tions.” An Isthmian Canal Commission was created to enable the
President to construct the canal.
By a treaty with the Republic of Panama, the ratifications of
which were exchanged on the 26th day o f February, 1904 (33 Stat., p.
148, Treaties), Panama granted “ to the United States in perpetuity
the use, occupation and control o f a zone o f land and land under
656

EIGHT-HOUB LAW ON PANAMA CANAL.

657

water,” o f a defined extent, for the construction of the canal. The
United States acquired “ all the rights, power, and authority within
the zone mentioned * * * which the United States would possess
and exercise i f it were the sovereign o f the territory * * * to the
entire exclusion o f the exercise by the Republic o f Panama of any
such sovereign rights, power or authority.”
By the act o f Congress approved April 28, 1904 (33 Stat., 429), it
was provided that until the expiration o f the Fifty-eighth Congress
“ all the military, civil, and judicial powers, as well as the power to
make all rules and regulations necessary for the government of the
Canal Zone, and all the rights, powers, and authority granted by the
terms o f said treaty to the United States, shall be vested in such per
son or persons, and shall be exercised in such manner as the President
shall direct for the government o f said zone and maintaining and
protecting the inhabitants thereof in the free enjoyment of their
liberty, property, and religion.”
By a letter o f the President to the Secretary of War, dated May 9,
1904, in pursuance of the authority vested in him by this act, the
Isthmian Canal Commission was placed under the supervision and
direction o f the Secretary o f War, and the jurisdiction and functions
o f the Commission were defined.
The President further directed that the laws o f the land, with
which the inhabitants were familiar, should continue in force in the
Canal Zone until altered or annulled by the Commission, and enumer
ated certain fundamental principles of government which he re
quired should be observed as essential to the maintenance of law and
order. He gave the Commission authority to legislate on all rightful
subjects o f legislation not inconsistent with the laws and treaties of
the United States, so far as they apply to said zone and other places.
In pursuance or this authority the Commission has enacted a con
siderable body o f laws, none o f which affects the question under con
sideration.
From this statement it is clear that there is nothing in the manner
o f the acquisition o f this territory, or in any subsequent action taken,
which has had the effect o f putting the laws o f the United States,
generally, or the act under consideration, particularly, in force within
the Canal Zone, and this act, therefore, is not a part o f the municipal
law o f that region. Although the Canal Zone is now within the
sovereign jurisdiction of the United States, and hence within the
legislative power o f Congress, Congress has not legislated for it,
except so far as I have indicated, and the case stands, so far as the
applicability o f the act o f 1892 is concerned, exactly as if the territory
were beyond the legislative power of the United States.
But although Congress has no power to enact laws which shall
operate beyond the jurisdiction o f the United States, still it has the
power to determine what shall be the length o f a day’s work o f any
and all persons employed by the Government or by contractors upon
any public works undertaken by the United States anywhere. Con
gress may, if it chooses, fix the hours of labor on the work of the
United States wherever it is conducted and make the law binding on
the officers o f the United States and, through the agency o f a contract,
upon the contractors with the United States. In other words, it may
direct the action o f its own officers and agents and dictate the terms
o f the contracts made with the Government. The law thus becomes
50—No. 60—05 M ----- 18

658

BULLETIN OF THE BUEEAU OP LABOR.

operative everywhere, not because it operates over territory beyond
the jurisdiction o f Congress, but because Congress has full jurisdic
tion over the officers and agents of the United States and full author
ity to prescribe the terms of any contract which shall be entered into
by the United States. Having, then, such authority, the sole ques
tion in this case is how far Congress has exercised it in this law.
The law is then given in full, after which the Attorney-General
said:
The first section o f the law provides that eight hours shall be the
maximum day’s work 44o f laborers and mechanics ” employed by the
Government o f the United States, the District o f Columbia, or by any
contractor or subcontractor 44upon any o f the public works o f the
United States or o f the said District o f Columbia.” I f Congress had
intended to limit the hours o f labor o f laborers and mechanics em
ployed by the Government anywhere, or by contractors on all the
public works o f the Government of the United States wherever they
were undertaken, it would be difficult to find more apt words to accom
plish that purpose than those which are used in this act.
It should be observed that although Congress has full legislative
authority over the Territories, it did not limit the hours o f labor o f
their employees on the public works undertaken by them through con
tractors. The scope o f the act was not limited by the territorial juris
diction o f Congress, and it is not, therefore, coextensive with that
jurisdiction. The scope o f the act is, on the other hand, limited by
the jurisdiction which Congress has over the subject-matter to which
it was directed, which is the conduct, in respect to the employment o f
laborers and mechanics, of officers and agents o f the United States
and o f the District o f Columbia, and the terms o f the contracts, in
respect to the hours o f labor of laborers and mechanics, which shall
be entered into with contractors upon all public works of the United
States. I f the Government of the United States should itself con
struct the canal, certainly the laborers and mechanics employed upon
it would be 44employed by the Government o f the United States.”
Nor could it be contended for a moment that the construction o f a
canal through territory over which the United States has sovereign
jurisdiction, to the exclusion o f all other powers, is not a public work
o f the United States, or that a contractor for such canal was not a
contractor upon a public work o f the United States. By the letter
o f the law, therefore, the hours o f labor of all laborers and mechanics
engaged in the construction o f the canal are limited to eight hours in
any one calendar day, whether employed directly by the United States
or by a contractor or subcontractor with the United States.
Reference is then made to the alien contract labor law o f 1885,
which contains a prohibition against the importation or entrance o f
contract laborers to perform labor 44in the United States, its Terri
tories, or the District o f Columbia.” Continuing, the AttorneyGeneral said:
I f Congress had intended to include only such laborers and me
chanics as were employed within the United States, its Territories,
or the District o f Columbia, here was apt phraseology in a statute
dealing with the same subject-matter ready for its adoption. It is

EIGHT-HOUR LAW OH PANAMA CANAL.

659

significant that the language used in 1885 was omitted in 1892. * * *
I can see nothing in any extraneous circumstances which would re
quire me to write into this statute such qualifying words as were used
in the act o f 1885, but deliberately omitted in the act of 1892, for the
purpose o f carrying out some supposed intention o f Congress. As I
can ascertain no such intention from any circumstances to which my
attention has been drawn, I do not feel at liberty to conjecture it.
Accordingly, I answer your first question in the affirmative.
In answer to your second question, it is my opinion that the act of
1892 does not apply to the office force of the Isthmian Canal Commis
sion stationed on the Isthmus o f Panama, or to any of the employees
o f the Government who are not within the ordinary meaning of the
words u laborers and mechanics.”
On the receipt by the Secretary o f War o f the above opinion, he
addressed the following additional questions to the Attorney-Gen
eral, as to the application o f the same law to specified classes o f em
ployees within the Canal Zone:
1. Do the provisions o f said act apply to the hours o f labor o f
“ mechanics and laborers ” paid by the month, particularly to that
class o f monthly employees whose services are necessary before and
after the regular hours of work, in order to enable the ordinary me
chanics and laborers to render eight hours’ service ?
For instance, in the machine shops certain classes o f employees are
paid by the month on account of the necessity o f requiring them to
perform each day certain services in connection with the machinery,
to have the same m readiness for the workmen on arrival at the shops.,
and to leave the machinery in proper condition at the close o f the
day’s w ork; for example, to get up steam in the morning and to clean
the machinery at night. Another example would be the tool men
who distribute the small tools in the morning and collect and clean
them at night.
A great many instances o f this character might be cited in connec
tion with the undertaking, but these are sufficient to advise you of
the practical difficulties which must be overcome.
2. Do the provisions of said act apply to the hours o f labor of
“ mechanics and laborers” employed in the construction, mainte
nance, and operation of the Panama Railroad and Steamship Line?
The Panama Railroad and Steamship Line is a corporation organ
ized and existing under the laws of the State of New York. It op
erates a line o f steamers plying between New York and Colon, and the
Panama Railroad between the cities of Colon and Panama. The
United States acquired by purchase practically all o f the stock o f
said corporation. A few shares are still in the hands o f private
owners, and each o f the directors owns one share, so as to qualify him
to act as a director, but the United States has an option on these
shares, which it may exercise at any time. The bonded indebtedness
o f said railroad and steamship line, now outstanding, aggregates
about $4,000,000. The title to the property continues to be in the cor
poration, and the business continues to be done by the officers and
employees o f the corporation.
The Panama Railroad and Steamship Line is a common carrier
engaged in commercial business, and is an important instrumentality

660

BULLETIN OF THE BUREAU OF LABOR.

o f commerce. The Isthmian Canal Commission avails itself of the
services of the railroad and steamship line, but deals with the cor
poration as a separate and independent entity, and pays for its serv
ices as would a private individual. The necessities o f commerce,
and the volume o f business arising from the construction o f the
canal, has induced the directors o f the corporation to doubletrack
the road, and largely increase its equipment. The road will continue
to act as a common carrier for the general public, and will also haul
and dispose o f the excavation along the line o f the canal, more espe
cially at Culebra Cut. The road will also be utilized in hauling the
employees to and from the location o f their work. It will be neces
sary for engineers, firemen, and trackmen to prepare the trains for
the business of the day, in advance o f the regular hours o f labor, and
to haul the men to their work, returning them to their boarding
houses in the evening, and perform the labor necessary for the proper
disposition o f engines, cars, etc., during the night.
The proposition seems to be: Is a common carrier subject to the
provisions o f the law above referred to, if while engaged in commer
cial business it hauls freight or passengers intended to be utilized by
the United States Government, or contractor o f that Government, in
the construction o f a public work o f the United States or District
o f Columbia ?
The operation o f trains must be had with due regard to the loading
and unloading o f vessels whose movements are determined by tides,
atmospheric conditions, and the many uncertainties of ocean navi
gation.
The Panama Railroad Company can not be considered as a con
tractor for the construction of the work. Its employment relates
simply to the transportation of materials and supplies, and the exca
vation above referred to, and a rule which would impose the provi
sions o f the “ eight-hour law” upon that corporation would apparently
impose the same provisions upon railroads in the United States that
are called upon to render transportation service to the Commission.
In reply to the first question the Attorney-General said:
The act o f August 1, 1892 (27 Stat., 340), applies to “ all laborers
and mechanics ” that come within its description. It, therefore,
includes persons who are paid by the month or year, as well as those
who are paid by the day, if they are laborers and mechanics. On the
other hand, the statute applies only to those persons who may fairly
come' within the description of laborers and mechanics. Beyond
these general statements, it is impossible for me, consistently with the
well-established rules governing the giving o f opinions by this
Department, to go, in answering your first question. * * *
It is believed that, giving to the words the meaning which is ordi
narily accepted for them and having in mind that the act should not
be extended beyond its plain terms, the Commission will have no diffi
culty in determining in each case as it arises whether the employee is
a laborer or mechanic, or whether his duties are such as to warrant
some other designation o f his employment.
The answer to the second question was premised by extracts from
an opinion o f Chief Justice Marshall, in which the status o f a State
as a corporator is considered. The ruling o f the Supreme Court, as

EIGHT-HOUR LAW ON PANAMA CANAL.

661

set forth in this opinion, is that “ The State does not, by becoming a
corporator, identify itself with the corporation. * * * It is, we
think, a sound principle that when a government becomes a partner
in any trading company it divests itself, so far as concerns the trans
actions o f that company, o f its sovereign character and takes that o f
a private citizen. Instead o f communicating to the company its
privileges and its prerogatives, it descends to a level with those with
whom it associates itself, and takes the character which belongs to its
associates and to the business which is to be transacted.”
In accordance with these views, the second question was answered
as follow s:
The act o f August 1, 1892 (27 Stat., 340), prescribes an eight-hour
day for laborers and mechanics “ employed by the Government of
the United States, by the District o f Columbia, or by any contractor
or subcontractor upon any o f the public works o f the United States
or o f the said District of Columbia.” Upon the facts stated by you,
those who are in the service o f the Panama Railroad and Steamship
Line are not “ employed by the United States; ” they are employed
by the corporation itself. Nor does the corporation appear to be “ a
contractor upon any public work o f the United States.” I am there
fore o f the opinion that the act in question does not apply to laborers
and mechanics in the employment of the Panama Railroad and
Steamship Line.
On the 15th o f May, 1905, the Secretary of War addressed a com
munication to the Attorney-General, conveying the desires of the
executive committee of the Canal Commission that the AttorneyGeneral wTould formulate a series o f rules or regulations, the ob
servance o f which would enable that committee, in making its con
tracts for the furnishing of labor, to avoid a condition o f peonage
under the authority of the United States. Without responding
directly to the request, fye Attorney-General presented a general
statement o f his views on the subject, leaving to the Commission the
actual drafting o f such rules as might be found necessary, which
should accord with the principles set forth.
From the Attorney-General’s opinion the following is quoted:
Your request does not refer to me any question of policy or ex
pediency, but only leads me to consider the effect upon labor on the
Isthmian Canal o f the thirteenth amendment to the Constitution of
the United States, the first section of which is as follow s:
“ Neither slavery nor involuntary servitude, except as a punish
ment for crime whereof the party shall have been duly convicted,
shall exist within the United States, or any place subject to their
jurisdiction.”
This is the only provision in the Constitution which expressly ex
tends to every place subject to the jurisdiction o f the United States.
There is no room for debate or occasion for interpretation of doubtful
words. Wherever the jurisdiction of the United States extends there
the prohibitions o f this article accompany it. By the treaty with the

662

BULLETIN OF THE BUREAU OF LABOR.

Republic o f Panama, the ratifications o f which were exchanged on
the 26th day o f February, 1904 (33 Stat., 2234), the United States
acquired the land known as the Canal Zone and “ all the rights,
power and authority within the zone mentioned * * * which
the United States would possess and exercise if it were the sovereign
o f the territory * * * to the entire exclusion o f the exercise by
the Republic o f Panama o f any such sovereign rights, power or
authority.” By this treaty the Canal Zone became subject to the
jurisdiction o f the United States and therefore this amendment is in
force there. Its prohibitions are self-executing in the sense that
they render all laws, contracts, customs, usages, and practices in viola
tion o f them null and void.
* * * It is enough to say that the thirteenth amendment is in
force there, and must be observed in the employment o f all persons.
It therefore becomes necessary to consider the meaning o f this consti
tutional provision. The word “ slavery ” is used in it as descriptive
o f the chattel slavery which once existed in this country. That any
such condition would be established by any officer o f the United States
is so inconceivable that it need receive no attention. But the words
“ involuntary servitude ” are much broader than slavery, and include
within their meaning many forms of service which can not properly
be described as slavery. * * *
* * * A laborer .may agree to serve for a specified time, and is
liable for damages for the breach o f his contract, and may, in certain
extreme cases, be made by law punishable for the willful abandonment
o f his labor. But when he is held by compulsion o f law or force to
complete the labor which he has engaged to perform, he is thereby
held in a condition o f involuntary servitude. A laborer may agree
to reside in a specified place, to perform only specified work, and to
remain in the territory a specified time, but if he is compelled by force
to comply with his obligations in these respects he, while thus under
compulsion, is in a condition o f involuntary servitude.
In the employment of labor upon the canal the utmost care should
be taken to exclude the conditions which have been indicated as those
o f involuntary servitude or any other conditions o f like effect or
tendency. This care should be exercised not only in making the con
tracts to which the United States is a party, but in scrutinizing the
contracts, usages, and practices between those who agree to furnish
contract labor to the United States and the laborers themselves.
What rules, regulations, officers, and inspectors may be needed in
order that the employment of labor may not be violative o f the thir
teenth amendment may well be left to the discretion o f the Com
mission.
It may be added that at the date of this publication no such rules
have been found needful, the supply o f volunteer labor from the adja
cent territory and from the West Indies having thus far proved suf
ficient to meet the needs of the Commission, and no importation agree
ments have been as yet considered.

RECENT REPORTS OE STATE BUREAUS OF LABOR STATISTICS.

MASSACHUSETTS.
Thirty-fourth Annual Report of the Bureau of Statistics of Labor.
March, 1904.

Charles F. Pidgin, Chief,

xix, 436 pp.

This report consists of four parts, as follow s: Part I, “ Race in
industry,” 130 pages; Part II, “ Free employment offices in the
United States and foreign countries,” 83 pages; Part III, “ Social
and industrial condition o f the Negro in Massachusetts,” 105 pages;
Part IY , “ Labor and industrial chronology for the year ending
September 30,1903,” 107 pages.
R ace i n I n d u s t r y .—The object o f this study was to ascertain to
what extent and in what manner persons of foreign descent have
fitted themselves into the industrial life o f Massachusetts. The
study was based on the returns made by the latest State and Fed
eral censuses. Only productive industries are included, meaning
not simply those which produce or manufacture articles, but also
those which supply the persons following them with a livelihood.
The presentation is made up o f 13 productive classes o f occupations,
with 115 subdivisions, and shows (1) occupations o f persons of
specified descent, by sex, with classifications by classes and subdi
visions o f productive industries; (2) recapitulation o f the foregoing,
for the State, by classes of occupations only, with percentages, and
(3) a recapitulation for the State, by sex and occupation classes,
showing also native born for Massachusetts and “ other States,” and
foreign born by specified countries and “ other countries.”
In the analysis of the facts brought out by the study is the follow
ing:
The fact is plain that the strong industrial condition o f Massa
chusetts has been secured and is held not by the labor of what is
called the “ native stock,” but by that o f the immigrants from all
climes, who have left their native lands to seek here opportunities
for financial advancement and political and religious liberty.
F ree E m p l o y m e n t O f f ic e s .—This report on the free employment
offices o f the United States and foreign countries was prepared in
compliance with an act o f the legislature of 1903 directing the bureau
o f labor to consider the expediency o f establishing in the State o f
Massachusetts free employment offices, and, further, to report such

663

664

BULLETIN OP THE BUREAU OP LABOR.

information as it could obtain in respect to such offices in other
States and countries, and to offer such recommendations as it deemed
proper concerning the establishment o f like offices in the State.
The information secured from the 13 States having free employ
ment offices is presented under four general heads, viz, (1) laws o f
the States; (2) organization, number o f officers, amount o f appro
priations, etc.; (3) work o f the offices, applications for help, persons
supplied with situations, etc.; (4) reports and opinions of officers in
charge o f free employment offices. The report respecting free em
ployment offices in foreign countries embraces Austria, Belgium,
Canada, Denmark, France, Germany, Great Britain, New South
Wales, and New Zealand.
It is stated that the reports from the 13 States which have estab
lished free employment offices show that the offices have been uni
formly successful, and in foreign countries the results seem to have
been as successful as in the United States. The conclusion is reached
that it would appear to be good public policy for the State to establish
free employment offices to assist the unemployed in obtaining work.
Recommendations are submitted as to the method o f establishment,
organization, and management of such offices by the State.
S o c ia l a n d

I n d u s t r ia l

C o n d it io n

th e

N egro in

M assach u

— The subjects treated in this part of the report are the early
history and condition o f the Negro in Massachusetts, population, occu
pations, vital statistics, ownership of farms and homes, pauperism
and crime, education, and churches and social organizations, together
with ^data regarding a recent conference at Tuskegee, Ala. The
occupations and social statistics were obtained for 8,335 persons in 8
cities, whose Negro population in 1900 was 14,140. The canvass for
births, marriages, and deaths included 37 cities and towns whose
Negro population in 1900 was 26,932, or 84.23 per cent o f the total
Negro population o f the State. The presentations are purely sta
tistical, and no deductions are made respecting the social equation of
the white and black races.
L a b o r a n d I n d u s t r ia l C h r o n o l o g y .— This chronology for the
year ending September 30, 1903, presents for the different cities and
towns o f the State information relative to strikes and lockouts, wages
and hours o f labor, trade unions, industrial changes, and working
men’s benefits. A t the end o f the chronological presentation is a
reprint of the labor laws enacted in 1903.
During the year covered by the chronology there were 217 labor
disputes in the State, 10 of which were lockouts. The total number
o f disputes showed a decrease of 59 over the preceding year. The
largest number o f strikes and lockouts, viz, 47, occurred in the build
ing trades, followed by boot and shoe workers with 29, textile opera
tives with 28, laborers with 17, and metal workers with 12. The
setts.

REPORTS OF STATE BUREAUS OF LABOR---- MASSACHUSETTS.

665

question of wages alone entered into 79 o f the total number of strikes
and lockouts. As to results of strikes and lockouts, 56 succeeded,
60 were compromised, 90 failed (44 where men were reinstated and
46 where places were filled), 8 were pending at the close o f the period,
and o f 3 the results were not reported. In 133 strikes and lockouts,
involving 28,709 workmen, the total working time lost was 1,316,859
days.
The information pertaining to wages and hours o f labor gives the
principal instances of increases in wages and changes in working
time for the different cities and towns o f the State; that for trade
unions gives new organizations formed during the year, and the
action o f unions with respect to the principal propositions which they
indorsed or disapproved; that for industrial changes gives new
incorporations, new constructions, extensions, and improvements in
existing manufacturing plants, changes in management of plant, etc.;
and that for workingmen’s benefits gives brief accounts o f the action
o f employers for the benefit of their employees, o f various movements
intended to improve the conditions o f wage earners, and o f bequests
or gifts from whatever source intended primarily to improve indus
trial conditions.
M ICH IGAN.

Twenty-first Annual Report of the Bureau of Labor and Industrial
Statistics, including the Eleventh Annual Report of the Inspection
of Factories. 1904. Scott Griswold, Commissioner, xiv, 589 pp.
In addition to factory, store, hotel, tenement-house, and coal-mine
inspection, the work of women inspectors, and labor laws (359
pages), the following subjects are presented in this report: Statistics
o f cities and villages, 9 pages; manufacture of paper, 7 pages; beetsugar industry, 26 pages; manufacture of beer, 6 pages; manufacture
o f pickles, 6 pages; butter and cheese industry, 44 pages; production
o f copper and iron, 31 pages; penal and reformatory institutions, 21
pages; mediation and arbitration, 10 pages; organized labor, 34
pages; important special industries, 20 pages; successful industrial
business firms, 16 pages.
M a n u f a c t u r e o f P a p e r .—During 1903 a canvass was made of 29
paper mills of the State, which represented an aggregate capital in
vestment o f $4,190,221. Four of the mills were conducted by indi
viduals, 2 by firms, and 23 by corporations. The average daily wages
o f 2,190 male employees was $1.71, and o f 467 female employees
$0.93. The value o f all paper manufactured in 1902 amounted to
$6,211,975.
B e e t - S u g a r I n d u s t r y .—The 19 beet-sugar factories of the State
represent an aggregate cost o f $12,866,000. In 1903 there were 643,358
tons o f beets used, from which 135,793,627 pounds o f sugar were made.

666

BULLETIN OF THE BUREAU OF LABOR.

During the year the plants were in operation an average o f 66 days,
and employed 1,082 skilled laborers at an average wage of $2.92 per
day, and 3,425 common laborers at an average wage of $1.76 per day,
or a total of 4,507 persons at an average wage o f $2.04 per day.
M a n u f a c t u r e o f B e e r .— Returns from a canvass of the 69 brew
eries o f the State showed that 18 were operated by individuals, 8 by
firms, and 43 by corporations, and that the capital invested aggre
gated $5,704,000. The value o f product for 1903 amounted to
$3,983,980. An average of $2.41 for a day averaging 8.6 hours was
paid to 887 employees.
B u t t e r a n d C h e e s e I n d u s t r y .— In 1903 there were 166 cream
eries in operation in the State, representing an invested capital o f
$689,790. In 1902 15,557,999 pounds of butter were manufactured,
valued at $3,344,053, and employment was given to 404 persons at an
average monthly wage o f $40.90. In 1903 there were 150 cheese
factories in operation, representing an invested capital o f $286,212.
In 1902 14,044,575 pounds o f cheese valued at $1,473,517 were manu
factured, and employment was given to 298 persons at an average
monthly wage o f $40.26.
P r o d u c t io n o f C o p p e r a n d I r o n . — This chapter consists o f a brief
history o f the copper and iron mines o f the Upper Peninsula,
together with a general account of existing economic and social
conditions. Brief reports o f each o f the 28 copper mines and o f the
51 iron mines give number and occupation o f employees, cost per
month for board, medical and surgical attendance, etc., number of
fatal accidents, underground conditions, and production for the
year 1902. The average wages per day in copper mines was $2.14,
and in iron mines $2.11.
M e d i a t i o n a n d A r b it r a t io n .—During the year 1903 the State
court o f mediation and arbitration intervened or offered its services
in the settlement o f 16 labor disputes. In order, to increase the
efficiency o f the court the State legislature in 1903 passed the follow
ing act: “ It shall be the duty of the mayor of any city, the supervisor
o f any township, or the president o f any village to promptly furnish,
or cause to be furnished to the court provided for in this act, infor
mation o f the threatened or actual occurrence o f any strike or lock
out within his jurisdiction.”
O r g a n iz e d L a b o r .—A canvass by the bureau secured returns from
589 unions, or about 90 per cent o f all the unions in the State, whose
membership on July 1, 1903, aggregated 43,069. The average daily
wages for all unions reporting in 1902 was $2.41, and in 1903 the
average was $2.50, an increase o f 9 cents. O f the 589 unions, 230
reported hours o f labor shortened and 359 hours o f labor not short
ened ; 420 reported differences settled by arbitration, and 169 differ
ences settled otherwise; 331 reported having agreements with em

REPORTS OP STATE BUREAUS OP LABOR— MICHIGAN.

667

plovers, and 258 having no agreements; 520 reported haying no
strikes during the year, and 69 having strikes, o f which 55 resulted
favorably to unions, 4 unfavorably, 4 were compromised, and 6
were still pending. The sum o f $24,099.30 was paid out in strike
benefits during the year by the 141 unions reporting the payment o f
such benefits; by the 219 unions having sick benefit funds there was
paid out during the year the sum o f $25,099.30 for such benefits.
Summaries o f suggestions o f the unions as to needed legislation are
presented.
S p e c ia l I n d u s t r ie s .— The concluding chapters o f the report are
devoted to accounts of some o f the special industries o f the State, and
brief descriptions o f 26 firms engaged in various manufacturing
enterprises. Among the industries given special mention are the
manufacture o f Portland cement, the growth and manufacture of
flax, the growth and manufacture o f chicory, the Solvay process of
making soda ash, the products o f gypsum, the manufacture o f grape
juice, sandstone brick, automobiles, cut glass, etc., and the canning
o f peas and corn.
M INNESOTA.

Ninth Biennial Report of the Bureau of Labor of the State of Minne
sota. 1903-4. John O ’Donnell, Commissioner. Vol. I, 639 pp.;
Yol. II, 458 pp.
The subjects presented in this report are: State institutions, 59
pages; child labor, 23 pages; the junk and rag industry, 14 pages;
women wage-earners, 50’ pages; business openings in Minnesota, 6
pages; electric street railways, 8 pages; electric light and power sta
tions, 11 pages; retail drug stores, 13 pages; meat markets and
butcher shops, 13 pages; factory inspection, 8 pages and 452 pages
(Yol. I I ) ; accidents to labor, 13 pages; strikes and lockouts, 16 pages;
court decisions, 14 pages; labor organizations, 59 pages; mines and
quarries, 25 pages; railroad organizations 7 pages; wage statistics,
236 pages.
C h i l d L a b o r .— This chapter contains a general review o f the con
ditions o f employment o f children in the various industries o f the
State. Conditions for the years 1902, 1903, and 1904 may be ex
pressed in the following summarized statement: There was employed
in 1902, in all industries, trades, and vocations, 1 child to 91 adults;
in 1903, 1 child to 113 adults, and in 1904, 1 child to 148 adults. In
the manufacturing and mechanical industries there was employed
in 1902, 1 child to 110 adults; in 1903, 1 child to 135 adults, and in
1904, 1 child to 192 adults. In nonmanufacturing establishments
there was employed in 1902, 1 child to 48 adults; in 1903, 1 child to
59 adults, and in 1904,1 child to 65 adults.

668

BULLETIN OF THE BUREAU OF LABOR.

The number o f wage-earners and of children under 16 years o f age
employed in manufacturing and in nonmanufacturing industries in
which children are employed is shown in the table follow ing:
NUMBER OF CHILDREN UNDER 16 YEARS OF AGE EMPLOYED AS W AGEEARNERS IN ESTABLISHM ENTS EMPLOYING CHILDREN, 1902, 1903, AND 1904.
1902.

1903.

1904.

Total Children
Total Children
Total Children
under 16 persons
under 16
16 persons
persons under
years
years
years
em
em
em
em
em
em
ployed. ployed.
ployed. ployed.
ployed. ployed.

Industry.

Manufacturing..........................................
N onmanufacturing..................................

88,232
15,959

747
828

94,189
16,820

691
281

97,536
17,549

505
265

T o ta l.................................................

99,191

1,075

111,009

972

115,085

770

T h e J u n k a n d R a g I n d u s t r y .—This presentation shows the num
ber o f persons employed, volume o f business done, and conditions
under which labor is performed in the junk and rag industry of the
State.
In St. Paul about 400 people find employment through the han
dling (collecting, sorting, and shipping) of 50,000 tons o f junk; in
Minneapolis, between 400 and 500 people in the handling of 100,000
tons, and in Duluth about 90 people in the handling of 25,000 tons.
In the State it is estimated that there are 1,500 people engaged in the
industry, and they and their' families, making 7,500 people, depend
upon the collection o f waste for a living.
W o m e n W a g e - E a r n e r s .— Under this title are given the results of
an inquiry relative to female wage-earners in stores, factories, and
shops in Minnesota. There were developed by the inquiry the sanitary
and other conditions surrounding their labor, their hours o f work,what
they earn, cost o f living, etc., and why store and factory employment
is preferred to domestic. It is estimated that there are employed in
the stores and factories of St. Paul approximately 6,000 women and
girls, 7,000 in Minneapolis, and 16,000 in the entire State.
B u s i n e s s O p e n i n g s i n M i n n e s o t a .— Under this caption is pre
sented a list o f 151 villages and towns, giving for each village and
town its population in 1900, on what railroad situated, and the nature
o f the industrial and mercantile opportunities offered.
E l e c t r ic

S tr eet

R a il w a y s

and

L ig h t

and

P ow er

S t a t i o n s .—

The information relating to these utilities in Minnesota is reproduced
from bulletins issued by the United States Department of Commerce
and Labor.
R e t a i l D r u g S t o r e s a n d M e a t M a r k e t s .—The inquiry into the
condition o f wage-earners employed in these branches o f trade
embraces the working time and wages o f 1,090 persons employed in
412 retail drug stores and o f 1,925 persons employed in 574 retail meat

REPORTS OF STATE BUREAUS OP LABOR---- MINNESOTA.

669

markets. In both drug stores and meat markets the hours o f employ
ment on week days ranged in most cases reported from 10 to 15, while
the hours on Sunday were so varied that little attempt at classification
was made. In drug stores the wages o f registered pharmacists
ranged from $52 to $100 per month and o f registered assistants from
$25 to $50 per month. From the returns it would seem that the wages
paid meat cutters and butchers ranged from $30 to $100 per month.
A c c id e n t s t o L a b o r .—The State bureau o f labor, during the year
from October 1,1902, to September 30,1903, received reports of 1,154
accidents, 117 o f which were fatal; during the year from October 1,
1903, to September 30, 1904, the bureau received reports o f 881 acci
dents, 53 o f which were fatal.
S t r i k e s a n d L o c k o u t s .— Under this head are given brief accounts
o f 49 labor disputes occurring in the State during 1903 and 21 during
1904.
C o u r t D e c i s i o n s .— During the years 1903 and 1904 there were
numerous decisions given in the various courts of the State which had
a direct bearing on the interests o f wage-earners. Several decisions
o f the most general interest are reproduced.
L a b o r O r g a n i z a t i o n s .— Statistics of labor organizations in the
State for the year 1904 are presented in this section. Tables show,
by localities, names of organizations, with date o f organization and
membership; hours of labor per day and per week; average daily
wages o f male and female members, how paid, increase in wages since
1902, and decrease in hours of labor since organization; and monthly
dues, and character and amount o f benefit features o f organizations.
The State as a whole showed an increase in number o f organizations,
but a decrease in membership, there being, in 1904, 318 organizations,
with a membership of 25,432, as compared with 297 organizations in
1902, with a membership o f 28,338. The decrease in membership was
largely due to the failure o f two strikes, one being that of the flour
mill employees in Minneapolis and the other that of the packing
house employees in South St. Paul, which practically disrupted the
unions interested and indirectly affected affiliated organizations. The
foregoing statistics do not include railway organizations and delegate
bodies.
For railway organizations a directory of the 68 lodges and divi
sions is given, showing name and location, and address of secretary.
The membership in 1904 was, for Brotherhood of Locomotive En
gineers, 1,060; Brotherhood o f Locomotive Firemen, 1,403; Order of
Bailway Conductors; 838, and Brotherhood o f Bailroad Trainmen,
1,432. This is an increase over 1902 o f 5 divisions and lodges and
1,118 members. There are also tables showing time worked and
wages for the year ending June 30, 1903, for engineers, firemen, con
ductors, and trainmen on the various railroads o f the State.

670

BULLETIN OF THE BUREAU OF LABOR.

M i n e s a n d Q u a r r ie s .— Under this caption are presented compre
hensive statistics o f the iron-ore mining industry of the State. Pro
duction o f ore in tons, number and occupation o f employees, wages,
etc., are given. The average number o f wage-earners for 52 mines in
operation during 1903 is given as 8,240; for 44 mines in operation
during 1904, as 9,406.
W a g e S t a t i s t i c s .—The wage statistics for the year 1904, forming
the subject o f this chapter, relate to 11 industries, and for pur
poses o f comparison have been grouped into four parts, viz, for St.
Paul, Minneapolis, Duluth, and the cities and towns outside these
three places. The wage-earners in each industry are classified accord
ing to occupation, and the statistics show working hours per day and
per week, weekly wages, and the percentage of persons employed at
the various wTeekly rates. The returns from St. Paul embraced 184
establishments, with 8,169 employees; those from Minneapolis, 248
establishments, with 15,482 employees; those from Duluth, 38 estab
lishments, with 1,806 employees, and those from other cities and
towns, 987 establishments, with 15,411 employees.

MONTANA.

Ninth Report [ Third Biennial] of the Bureau of Agriculture, Labor,
and Industry of the State of Montana. 1903-1904. J. A. Fer
guson, Commissioner,

viii, 571 pp.

Following are the general titles of the subjects treated in this
report: Montana (general review of conditions in the State), 4
pages; lands, 33 pages; irrigation, 24 pages; agriculture, 30 pages;
horticulture, 9 pages; live stock, 48 pages; labor, 59 pages; the indus
tries, 53 pages; miscellaneous, 163 pages.
L a b o r .— A variety o f subjects relating to labor are presented under
this general head.
The people o f the State are becoming actively interested in coop
erative institutions, o f which there is a large number in successful
operation, the most prominent examples being irrigating ditches,
built and maintained through cooperative effort. Many of the labor
unions own halls, the Missoula unions owning the building used as
an opera house and the Helena unions owning and conducting a
steam laundry. There are three cooperative farmers’ stores in the
State, while every fruit-growing district maintains an incorporated
cooperative association for the marketing of crops, community pur
chase o f needed supplies, and various other measures of protection.
There is one grain elevator in the State owned by farmers and coop
eratively managed, while much o f the recent activity displayed in
creamery enterprises has been along the same lines.

REPORTS OF STATE BUREAUS OF LABOR---- MONTANA.

671

O f the fifty or more labor disputes occurring during the period
covered by the report, only a record o f historic facts has been pre
sented.
The following statement shows the transactions of the Butte free
public employment office for the years ending November 30, 1903,
and November 30, 1904:
TRANSACTIONS OF BUTTE FREE PUBLIC EMPLOYMENT OFFICE, 1903 AND 1904.
Applications for work.
Year ending—
Male.
November 30,1903....................................
November 30,1904....................................

3,572
5,999

Positions secured.
Appli
cations
for
Female. Total. help. Male. Female. Total.
2,769
5,105

6,341
11,104

4,140
7,803

1,647
3,762

1,901
3,863

3,548
7,125

During the first year there were 972 males who secured employ
ment as laborers and 1,115 females who secured employment as do
mestics. During the second year there were 2,126 males who secured
employment as laborers and 2,229 females who secured employment
as domestics.
Other subjects considered under the general title “ L abor” are
workingmen’s hospitals, farm labor, wage scales, child labor, labor
legislation, the Chinese and Japanese, etc.
I n d u s t r ie s .— The amount, value, etc., of production of the various
mineral resources o f the State for 1902 and 1903 are extensively de
tailed under this general head; also the product of breweries and
creameries, and the production o f lumber and o f brick and other clay
products. During the year 1902 there were produced by the coal
mines in the State 1,502,115 tons o f coal, the mines paying a total of
$1,439,371 for labor. The coal production in 1903 was 1,553,285
tons, and the amount paid for labor $1,712,082. In the production
o f brick and other clay products there was expended for labor
$166,484 during 1902 and $177,849 during 1903.
N EW JE E S E Y .

Twenty-simth Annual Refort of the Bureau of Statistics of Labor
and Industries of New Jersey, for the year ending October 31,
1903. W. C. Garrison, Chief, viii, 629 pp.
The following subjects are presented in this report: Statistics of
manufactures, 129 pages; steam railroads, 11 pages; fruit and vege
table* canning, 10 pages; the Negro in manufacturing and mechanical
industries, 53 pages; cost o f living, 21 pages; child labor, 181 pages;
labor legislation and decisions o f courts, 23 pages; labor chronology,
179 pages.

672

BULLETIN OF THE BUREAU OF LABOR.

S t a t is t ic s o f M a n u f a c t u r e s .—This presentation o f the statistics
o f manufactures is based on returns secured for the year 1902 from
1,811 establishments, 1,753 representing 88 specified industries and
58 grouped as unclassified. The facts are set out in nine tables, which
show management o f establishments, capital invested, value o f
materials and o f products, number o f employees, wages and earnings,
daily hours of labor, days establishments were in operation during the
year, proportion o f business done, and a special presentation o f the
foregoing facts for nine principal industries. Additional tables show
for the year the aggregate quantities o f specified articles o f stock
used, with their aggregate cost value, and the aggregate quantities of
specified articles o f goods made, with their aggregate selling value.
O f the 1,811 establishments, 1,809 reported $327,148,806 capital
invested; 1,802 establishments reported value o f materials used at
$298,918,930, and value o f products at $501,797,405. The average
number o f employees in all establishments was 217,929. A total o f
$101,800,338 was paid in wages during the year, and the average
yearly earnings o f employees were $467.13. For the total establish
ments considered, the average days in operation for the year were
289.70, the average hours worked per day 9.72, and the average pro
portion o f business done o f total capacity was 77.76 per cent.
The table following presents, by sex, the total number of persons
employed in 1902 in all industries (1,811 establishments) at the
specified weekly rates of wages:
EMPLOYEES OF EACII SEX IN ALL INDUSTRIES (1,811 ESTABLISH M ENTS), BY
CLASSIFIED W EEKLY RATES OF W AGES, 1902.
Classified weekly wages.

Males. Females.

Total.

Under $5............
|5 or under $6...
$6 or under $7...
$7 or under $8...
$8 or under $9...
$9 or under $10..
$10 or under $12.
$12 or under $15.
$15 or under $20.
$20 or over....... .

16,755
7,177
8,345
16,131
16,195
24,912
25,182
27,887
28,416
12,481

22,401
11,334
8,758
6,159
4,044
2,660
2,556
1,528
539
65

39,156
18,511
17,103
22,290
20,239
27,572
27,738
29,415
28,955
12,546

Total

183,481

60,044

243,525

The table following, embracing 38 selected industries, is presented
in order to show how the product o f industry is divided between
capital and labor, or, in other words, what proportion goes to the
workmen in the form of wages and what proportion is reserved by
the employer to meet all other charges against the business, including
a fair profit for himself. In brief, it may be stated that the industry
product is the selling value of the goods or articles made, less the cost
value o f the materials used, or the value created above the cost value
o f stock or materials used.

REPORTS OF STATE BUREAUS OF LABOR---- NEW JERSEY.

673

AMOUNT AND PER CENT OF INDUSTRY PRODUCT DEVOTED TO WAGES AND TO
PROFIT AND OTHER EXPENSES IN 38 SELECTED INDUSTRIES.

Industries.

Estab Per
Industry
sons
lish
em
product.
ments. ployed.

Artisans’ tools..............
Boilers...........................
Brewing (beer,ale, and
porter)........................
Brick and terra cotta..
Carpets and ru g s.........
Chemical products___
Cigars and tobacco___
Cotton goods.................
Drawn wire and wire
cloth.............................
Electrical appliances..
Food products......... .
Foundry (iron)............
Furnaces, ranges, and
heaters........................
Glass (window and
bottle).........................
Hats (fe lt).....................
High explosives............
Jewelry..........................
Knit goods.....................
Leather ..........................
Lamps.............................
Machinery.....................
Metal goods...................
Oil cloth (floor and
table)...........................
Oils..................................
Paints.............................
Paper...............................
Pig iron.........................
Pottery...........................
Rubber goods...............
S h o e s............................
Shirts.............................
Silk (broad and rib
bon) .............................
Silk dyeing.....................
Steel and iron (struc
tural) ...........................
Steel and iron (bar) . . .
Steel and iron (forg
ing)...............................
Watches, cases, and
material......................
Woolen and worsted
goods...........................

Per cent of in
dustry product
Industry
Amount Profit and product devoted to—
paid in expenses. per em
Profit
wages.
ployee. Wages. and
ex
penses.
$914,973
742,693

$728,942
644,110

$948.59
1,047.43

55.66
53.55

44.34
46.45

1,869
5,341
1,557
5,004
4,029
4,611

8,945,889 1,624,151
4,254,893 2,285,746
975,870
552,405
7,557,369 2,411,856
6,435,660 1,297,386
2,285,552 1,339,945

7,321,738
1,969,147
423,465
5,145,513
5,138,274
945,607

4,786.45
796.65
626.76
1,510.27
1,597.33
495.67

18.16
53.72
56.61
31.91
20.16
58.83

81.84
46.28
43.39
68.09
79.84
41.37

4,638
4,397
2,001
4,852

3,467,477
4,862,838
2,555,076
4,062,657

2,723,336
2,063,791
841,481
2,629,583

744,141
2,799,047
1,713,595
1,433,074

747.62
1,105.94
1,276.90
887.32

78.54
42.44
32.93
64.73

21.46
57.56
67.07
35.27

1,530

2,283,794

1,008,254

1,275,540

1,492.68

44.15

55.85

6,138
22
6,726
25
8 1,239
79
2,821
1,369
11
62 5,259
8
3,235
95 15,674
61 5,519

3,992,834
4,683,275
1,963,428
4,022,307
679,361
5,533,219
2,219,467
14,450,507
3,808,782

3,174,566
3,060,987
628,842
1,672,917
377,878
2,606,743
1,166,733
9,365,484
2,293,150

818,268
1,622,288
1,334,586
2,349,380
301,483
2,926,476
1,052,734
5,085,023
1,515,632

650.51
696.29
1,584.69
1,425.84
496.25
1,052.14
686.08
921.94
690.12

79.51
65.36
32.03
41.59
55.62
47.11
52.57
64.81
60.21

20.49
34.64
67.97
58.41
44.38
52.89
47.43
35.19
39.79

35
13

1,733
1,324

32
58
9
42
31
28
6
25
24

$1,643,915
1,386,803

8
12
8
33
3
34
33
34
21

887
3,010
617
1,959
623
3,872
4,549
4,061
2,941

1,072,994
6,993,648
772,803
2,694,930
508,618
3,709,306
4,722,313
2,615,610
1,588,082

423,484
1,816,804
299,590
943,208
310,038
2,271,873
2,116,255
1,586,207
877,622

649,510
5,176,744
473,213
1,751,722
198,585
1,437,433
2,606,058
1,029,403
710,460

1,209.69
2,323.47
1,252.52
1,375.67
816.40
957.98
1,038.10
644.08
539.98

39.47
25.98
38.77
35.00
60.96
61.25
44.81
60.64
55.26

60.53
74.02
61.23
65.00
39.04
38.75
55.19
39.36
44.74

123
20

21,445
3,900

16,775,616
2,800,030

8,835,402
1,819,185

7,940,214
980,845

782.26
717.96

52.67
64.97

47.33
35.03

19
7

3,318
1,157

2,959,555
817,603

1,789,273
554,514

1,170,282
263,089

891.97
706.66

60.46
67.82

39.54
32.18
41.36

2,680

2,731,907

1,601,970

1,129,937

1,019.37

58.64

2,101

1,683,737

1,126,079

560,658

802.83

66.76

33.24

634.47

54.66

45.34

8,438

5,353,624

2,926,268

2,427,356

S t e a m R a ilro ad s .— For the year ending June 30, 1903, the seven
railroads in the State employed 38,363 persons for an average of 297
days per person, each working an average of 10.5 hours per day.
The total paid in wages amounted to $21,923,260, the average wages
per day being $1.92 and the yearly earnings $571.47. Four of the
companies reported the number o f employees injured during the
year as 1,891. The injuries of 83 resulted in death.
F r u it a n d V egetable C a n n i n g .—In 1902 the 52 canneries in op
eration in the State reported an invested capital of $1,035,482. They
gave employment to 7,361 work people—2,891 males and 4,470 fe
males. Fifty-one o f them paid out in wages a total of $367,100. The
selling value o f the product of 51 was $2,164,299.
50—No. 6 0 -0 5 M------19

674

BULLETIN OF THE BUREAU OF LABOR.

T h e N egro i n M a n u f a c t u r in g a n d M e c h a n ic a l I n d u s tr ie s .—

This section o f the report constitutes an inquiry into the extent to
which Negroes are employed in the manufacturing and mechanical
industries o f the State. Also, as a help to an understanding of the
capacity o f Negro boys for skilled or semiskilled employment, an
inquiry was made as to their aptness and ability in manual training
schools.
Inquiries were sent to 475 establishments, including all the largest
ones in each o f the principal industries. Replies were received from
398 establishments, employing 128,412 persons, a number considerably
in excess o f 50 per cent of the total employed in all kinds of manu
facturing in the State. It was found that only 83 establishments
employed Negro labor in any capacity. These 83 employed 38,364
persons, o f whom 963 were Negroes, 234 being either skilled or semi
skilled workers and the remaining 729 being common laborers, stable
men, or team drivers. Inquiry was also made as to the attitude of
organized labor toward the Negro as a workman and colaborer. The
majority o f answers indicate a readiness to receive applicants on
equal terms, without regard to color. Few Negroes were found to
be members of unions, however, as it is apparent that they would be
admitted only because of the necessity of guarding against the reduc
tions o f wages following their competition as nonunionists.
C ost of L iv in g .—This is a continuation of the presentation of
previous years and shows the retail prices o f 49 items o f food and
other commodities in the principal markets in all counties of the
State in the month o f June, 1903. Comparisons with retail prices
in 1898 are also given, showing a decrease o f 6.1 per cent for the year
1903 on the list o f articles presented.
C h il d L ab or .— This inquiry respecting child labor in New Jersey
is confined to a study of the social and industrial conditions of 938
children (485 males and 453 females) employed in the principal fac
tory towns. A summary of the more important facts developed by
the inquiry shows that the average age at time o f starting to work
was 13.6 years; at the time the canvas was made, 15.2 years for males
and 15.3 for females. The average working hours per day were 9.6
for males and 9.9 for females, while the average weekly earnings for
both were $4.22. O f the total employed, 21 males were regularly
apprenticed. The average time at school before starting to work was
4.2 years. There were 94.7 per cent o f the children who could read,
84.3 per cent who could read and write, and 78.4 per cent who could
read, write, and calculate; 38 per cent were in attendance at night
schools. The parents of 55 per cent were foreign born and o f 45 per
cent native born. Only 7 out o f the total reported their work as a
kind which required them to carry heavy loads; 33 per cent reported
having to stand continuously while at work.

REPORTS OF STATE BUREAUS OF LABOR---- NEW JERSEY.

675

L abor L e g is la tio n a n d D e c isio n s of C o u rts .— This consists of a
reproduction o f the labor legislation enacted at the session o f 1903
and extracts from recent (1902-3) decisions o f the New Jersey courts
on cases affecting the interests o f labor.
L abor C h r o n o l o g y .— This record is for the year ending September
30, 1903. During the period there were 115 corporations created for
manufacturing purposes, 106 reporting capital stock amounting to
$£1,672,000; 62 new buildings were erected and equipped for manu
facturing purposes and 79 old plants more or less enlarged; 14
industrial plants (none employing less than 100 persons) were
moved into New Jersey from other States; 8 manufacturing plants
were permanently closed and 10 closed for a considerable period; 75
plants suffered from fire, some being totally destroyed; wages were
increased voluntarily in amounts ranging from 5 to 25 per cent in 24
establishments; 560 employees were injured while at work, o f which
number 76 died from the injuries received; there were 52 new labor
unions established; 120 strikes of greater or less duration occurred
during the year, o f which 48 were for an increase o f wages, 14 for a
reduction in the hours o f labor, 13 against the employment of non
union men, 9 to compel recognition of union, 8 against reduction of
wages, and the remainder for other causes.

RECENT FOREIGN STATISTICAL PUBLICATIONS.

A U S T R IA .

Die Arbeitszeit in Handelsbetrieben mit Ausschluss des DetailWarenhandels. A u f Grand einer Umfrage bei Kaufmannischen
Genossenschaften und Vereinen herausgegeben vom k. k. Arbeitsstatistischen Amte im Handelsministerium. 1903. xix, 103 pp.
In conformity with a resolution adopted by the permanent labor
council at its session held October 28, 1902, to consider a measure
presented by the Government relative to a proposed amendment to
the industrial code providing for regular hours of rest and noon
intermissions for certain classes of employees in mercantile establish
ments, the Austrian bureau o f labor statistics, in the early part o f
1903, made an investigation into the hours o f labor o f persons em
ployed in mercantile establishments conducting a wholesale business,
private banking establishments, and shipping and express agencies.
The investigation was conducted by means o f schedules of inquiry
prepared by the bureau and transmitted to the chambers of commerce
and industry, mercantile organizations, and mercantile employees’ as
sociations in the principal towns and cities of Austria. Information
was received from the officers of these organizations concerning es
tablishments located in 60 different cities o f Austria ranging in popu
lation from 1,297 in the case of Nowosielitza Bukowina, to 1,674,957
in Vienna. It relates to the hours of labor o f employees grouped
according to the following classification: (1) Salaried employees,
such as bookkeepers, cashiers, clerks, salesmen, commercial travelers,
etc.; (2) apprentices; (3) subordinate employees, such as porters,
packers, messengers, hostlers, drivers, servants, etc.
The returns show that mercantile establishments engaged exclu
sively in the wholesale business were generally found only in the
larger cities. In smaller cities such establishments were frequently,
and in some places entirely, conducted in connection with retail de
partments.
In establishments engaged in the wholesale business only, the hours
o f labor o f salaried employees, exclusive of intermissions, ranged
mostly between 7 and 10 per day. In general, the hours were short676

FOREIGN STATISTICAL PUBLICATIONS---- AUSTRIA.

677

ast in the large cities, especially in Vienna, where they were reported
as short as 6 and 6^ per day, with the 7 and 8 hour day largely pre
dominating. In wholesale establishments with retail departments
the hours o f employees in the wholesale branch were usually affected
by the longer hours of employees in the retail section, the hours being
frequently as long as 12 and 13 per day.
As a rule, the hours of apprentices in wholesale establishments
were of the same duration as the hours of salaried employees. Cases,
however, were reported where the hours of apprentices were of
longer duration, due to their beginning work earlier in the morning,
to briefer periods o f intermissions, or to later hours in the evening.
Hours o f shorter duration were noted in cases of apprentices attend
ing the continuation schools.
With regard to the hours o f subordinate employees, only a few
instances were found where they were shorter than the hours o f sal
aried employees. They were usually longer, owing to the fact that
the character o f the work required them to be on duty earlier and
later than the clerks and officials. In some cases their intermissions
were also shorter for the same reason. In Vienna the hours o f this
class of employees ranged from 6J to 12^, although hours in excess of
10 per day were exceptional. A similar ratio o f increase over the
hours of salaried employees prevailed in other cities, the hours gen
erally ranging between 8 and 12 per day, with a few exceptional cases
reporting 13 hours or over.
The returns showed that in a great majority of cases the noon intermission was from one to two hours in length. In 17 localities addi
tional recesses during the morning and afternoon were reported.
The total duration of these additional recesses did not exceed one
hour, and in the majority of cases was thirty minutes or less.
The hours o f labor on Sundays were, as a rule, restricted to con
form to the provisions of the law and the local regulations governing
Sunday labor. In some localities, especially in Vienna, Gratz,
Prague, Klagenfurth, Eeichenberg, Brunn, and Trieste, many estab
lishments were entirely closed on Sunday, either during the entire
year or only during the summer months. In cases where Sunday
labor was reported the hours were usually from 8 or 9 a. m. to 11
a. m. or 12 m. Only in rare instances did they exceed 5 hours.
On holidays the hours o f labor were generally less restricted than
on Sundays, but they were rarely as long as on other week days.
In 37 cities a temporary increase in the regular number of hours
was reported at certain seasons of the year. The increase was usually
influenced by special conditions prevailing in the business in which
the establishments were engaged and occurred most frequently before
the Easter and Christmas holidays and at periods o f taking inven

678

BULLETIN OF THE BUBEAU OF LABOR.

tories. As a rule, the increase lasted only a few days, seldom exceed
ing 2 or 3 hours on any one day, and it applied, as a rule, only to
employees directly affected by the special conditions requiring extra
hours. A reduction from the usual hours was reported in 17 cities,
the reduction usually occurring during the dull season or on Sat
urdays.
The returns show that, as a rule, the shortest hours o f labor were
found to prevail in the banking institutions. In a majority of cases
the hours o f salaried employees ranged from 6 to 8, only a few
instances being reported where they exceeded 9 hours per day. The
hours o f subordinate employees usually corresponded with those o f
salaried employees, being slightly longer in a few cases on account
o f the character o f the employment. On Sundays and holidays labor
was either entirely or partially suspended. In the latter case work
was limited to the morning hours. In some establishments employees
worked in turns on alternate Sundays.
The working hours in shipping and express agencies were usually
somewhat longer than the hours prevailing in wholesale mercantile
establishments or banking institutions. Salaried employees were in
no case engaged less than 8 hours per day, while 9 to 11 hours pre
dominated in a majority o f cities. Only one instance, however, was
reported in which the hours were as long as 12| per day. The hours
o f apprentices were, as a rule, of the same duration as the hours of
salaried employees, except that in a few isolated cases they were from
one-half to 1 hour longer. For subordinate employees the hours were
rarely less than 9 per day. In the majority of cases they ranged from
10 to 11 and over, with several instances of 12 and 13 hours, especially
in the case o f drivers and hostlers. As regards Sunday and holiday
labor or the temporary increase or decrease of hours during certain
seasons o f the year, the same conditions generally prevailed as in the
cases o f wholesale mercantile establishments.
Leaves o f absence of 2 to 30 days’ duration were given in some
establishments regularly, in others only on request during the dull
season, in cases o f sickness, or for special reasons, the duration o f the
leave frequently depending on the length of the term of service of
the employee and the character of employment, the data relating to
this subject indicating that persons employed in banking institutions
were more favorably treated than those employed in the other
classes o f establishments.

679

FOREIGN STATISTICAL PUBLICATIONS---- FINLAND,

FIN LAN D .

Jndustri-Statistik 18. A r 1901. Forra delen. Bergshandtering och
Maskin-industri; Mynt- och Kontrollverket. Senare delen. Fabriker och Handtverkeriev. Bidrag till Finlands Officiela Statistik.
X V II I.

ix, 56 pp.

x, 127 pp.

This is the eighteenth annual report on industrial statistics in Fin
land, and covers the year 1901. The first part relates to the mining
and metal-working industries and to coinage, and the second part to
factory and hand-working industries. Each part contains an analysis
and summary o f the statistics, followed by detailed tables showing
the facts for each industry and for each district.
The following table shows, for the year 1901, the number of estab
lishments in the mining and metal-working industries, the number of
employees, and the value of the product:
ESTABLISHMENTS, EMPLOYEES, AND VALUE OF PRODUCT OF THE MINING
AND METAL-WORKING INDUSTRIES OF FINLAND, 1901.
Establishments.

Trade or industry.
Blacksmithing and fine iron working.........................................
Coppersmithing............................................... ...............................
Shot m aking....................................................................................
Type founding.................................................................................
Engraving.........................................................................................
Gold and silver smithing..............................................................
Brass founding...............................................................................
Gilding, plating, and enameling.................................................
Galvanizing......................................................................................
Tin and sheet-iron working..........................................................
File cutting......................................................................................
Metal-card m aking........................................................................
Needle and fishhook making........................................................
Ship and boat building..................................................................
W atch and clock making..............................................................
Organ building...............................................................................
Musical-instrument making.........................................................
Optical-instrument making.........................................................
Electrical-apparatus making............................................ c .........
Total metal working in factories and handicraft trades .
Mines, foundries, machine shops, and state railway shops .

801
69

2,035
839

4
5
380

1
2
1

22
12
1
129

6
9

4
156
12
4
6
4

101

Total mining and metal-working industries (a)............
a

Employees.

Value of
product.

$548,062.10
142,839.80
12.467.80
1.891.40
1,659.80
245,708.30
37.268.30
51.067.80
22, 002.00
284,906.60
7,990.20
8,106.00
5.365.40
44,274.20
110,280.20
31.188.80
1.698.40
8,974.50
51.357.30

4,460
12,759

1,617,108.40
7,182,624.31

17,219

8,799,732.71

102
115
39
687
27

27
144
360
90
7

Not including bog iron-ore extraction, which was valued at $99,305.06.

The following table shows the number of establishments, the value
o f the products, and .the number o f employees in the factory and
hand-working industries other than the metal trades since 1891:
TOTAL ESTABLISHMENTS, VALUE OF PRODUCT, AND NUMBER OF EMPLOYEES
IN INDUSTRIES OTHER THAN MINING AND METAL WORKING, 1891 TO 1901.
Year.
1891............
1892............
1893............
1894............
1895............
1896............

Establish
ments.

Employ
ees.

5,478
5,623
5,580
5,825
6,012
6,054

49,467
47,250
46,085
47,783
53,185
59,182

Value of
products.

Year.

$27,699,836
26,901,947
26,435,976
28,387,175
31,362,472
36,179,375

1897............
1898............
1899............
1900............
1901............

Establish
ments.

Employ
ees.

6,165
6,331
6,581
6,677
6,795

64,927
73,857
83,844
80,556
78,636

Value of
products.
$41,359,599
46,132,465
49,904,491
55,405,702
52,170,425

680

BULLETIN OF THE BUREAU OF LABOR.

The following table shows the number of employees and the gross
value o f the product o f each of the industrial groups for the years
1900 and 1901, together with the per cent o f increase:
NUMBER OF EMPLOYEES AND VALUE OF PRODUCT, BY GROUPS OF INDUSTRIES, 1900 AND 1901.
Employees.
Industries.

1900.

1901.

Value of product.

Increase
,( + ) or
decrease
(-).

1900.

1901.

P er cent.

Increase
(+ ) or
decrease
(-).
P er cent.

Stone, earthenware, glass, e tc. . . 7,578
Chemical products........................ 2,805
Leather and hides.........................
8,514
Textiles............................................ 11,614
Paper, cardboard work, and
bookbinding................................
7,079
Woodworking, bone, cork, e tc. . . 25,816
Building trades............................... 3,736
Food products................................ 11,177
Clothing.......................................... 5,240
Printing and allied trades............ 2,497

7,149
2,279
3,327
10,851

-5 .7
-1 .1
-5 .3
-6 .6

$2,175,043.41
1,663,838.72
2,933,770.23
6,753,981.54

$2,111,901.73
1,740,601.38
2,927,637.46
6,374,013.37

- 2.9
+ 4.0
- .2
-M

7,381
25,516
3,634
10,883
5,116
2,500

+4.3
-1 .2
-2 .7
-2 .6
-2 .4
+ .1

5,761,093.62
17,090,882.82
1,263,953.14
14,647,334.91
1,936,752.49
1,179,951.47

6,110,208.42
14,315,463.50
1,364,370.84
14,058,594.78
1,916,688.60
1,250,944.94

+ 6.1
-1 6 .2
+ 7.9
- 4.0
- 1.0
+ 6.1

T otal....................................... 80,556

78,636

-2 .4

55,405,702.35

52,170,425.02

- 5.8

FRANCE.

Rapport sur VApprentissage dans VImprimerie, 1899-1901. Office du
Travail, Ministere du Commerce, de l’lndustrie, des Postes et des
Telegraphes. 1902. xcvi, 320 pp.
During the year 1898 the French minister o f commerce decided
that an investigation should be made by the bureau o f labor concern
ing the industrial apprenticeship conditions in France, the actual
status o f trade instruction in workshops, and the results o f the vari
ous methods employed in the training o f workmen. It was found
impracticable, however, to undertake such an investigation to cover
all industries, and the bureau o f labor therefore confined itself to
apprenticeship in the printing and lithographing trades. The pres
ent volume is the result of this investigation.
The report consists of a history of apprenticeship regulation in
France, with detailed statistical tables, an analysis of the tables, and
an account o f the method o f work adopted in this investigation.
The report shows the present condition of apprentices engaged in
the printing establishments visited; the proportion of apprentices
to the total number of workmen employed in the various printing
trades; and the age, length of service, and wages o f employees, classi
fied according to the character o f their training or apprenticeship. It
also contains a compilation of information furnished by trade schools
for the printing trades, showing their functions and the present occu
pations o f their graduates, and a summary o f the opinions of officers
o f trade unions, employers’ associations, and proprietors o f printing
establishments.

FOREIGN STATISTICAL PUBLICATIONS— FRANCE.

681

In the printing trades, as in many other trades in France, much
attention is being given to a revival of the apprenticeship contract
system, the establishment of an efficacious supervision over the instruc
tion given apprentices, and the encouragement of trade courses; and
on the part o f the working people, to a limitation o f the number of
apprentices. With regard to the first and last points much has been
accomplished by agreements between the employers’ federation
( Union syndicate patronale) and the federation of workingmen in
the printing and publishing trades (Federation ouvriere des travail-

leurs du livre).
According to the census of March 26,1896, there were in France on
that date 56,000 persons employed in 3,500 printing and lithograph
ing establishments, besides a considerable number of persons in these
trades who employed no help. I f the bookbinding, photographing,
and other allied industries are included, the number of persons
amounts to about 84,000, of whom 36,000 were employed in the
Department o f the Seine (Paris and vicinity). The statistics con
tained in the present report are based upon data obtained from 762
printing establishments, employing 15,500 persons. O f these estab
lishments 194, employing 6,700, were in the Department of the
Seine.
O f the 762 establishments 567 reported the existence of apprentice
ship contracts. In 409 establishments the contracts were verbal, in
41 written, and in 117 the character of the contract was not reported.
In 7 establishments the terms of apprenticeship were for 1 year or
under; in 2, from 1 to 2 years; in 63, from 1 to 3 years; in 19, from
2 to 3 years; in 381, 3 years; in 46, from 3 to 4 years; in 76, from 3 to
5 years; in 7, from 4 to 5 years; in 17, from 4 to 6 years; in 3, from 5 to
10 years. This inquiry was not answered by 141 establishments.
About three-fourths of the apprentices completed their terms of
apprenticeship; the proportion in the Department of the Seine, how
ever, was only about one-half. O f about 2,000 apprentices, 8 per
cent were the sons of persons engaged in printing trades, 12 per cent
were sons o f other employees in establishments where the apprentices
were indentured, and 80 per cent were sons of persons in other em
ployments. Twenty-five apprentices had graduated from trade
schools, 7 had attended trade courses, 164 had done manual work
before being indentured, and 215 attended trade courses during their
apprenticeship. Less than one-tenth of the apprentices were over 18
years o f age.
With regard to stability of employment, it was found tlfat of
5,847 persons who had entered upon apprenticeship in the estab
lishments enumerated during the past 10 years, 246 did not remain
in service more than 1 year—that is, quitted the establishment before
they acquired the rudiments of the trade; 407 remained from 1 to 2
years; 436 from 2 to 3 years; 1,049 over 3 years; 2,394 were still in

682

BULLETIN OF THE BUREAU OF LABOR.

the same establishment where they were apprenticed; 680 had left
and returned to the establishment, and in the case of 635 this inquiry
was not answered.
The relative number of apprentices and workmen employed varied
with the different trades and with the size o f the establishment. In
the compositors’ and pressmen’s trades there were 1,182 apprentices
and 5,454 workmen, or about 1 to 5. Among lithographers and
transferers there were 138 apprentices and 670 workmen, or about 1
to 5. Among other employees in printing establishments there were
797 apprentices and 7,084 workmen, or about 1 to 9. The variation of
this proportion with the size of the establishment is observed in the
following table:
NUMBER OF APPRENTICES PER 100 COMPOSITORS AND PER 100 LITHOGRA
PHERS IN FRANCE, GROUPED ACCORDING TO SIZE OF ESTABLISHMENT.
Apprentices per
100 compositors.

Apprentices per
100 lithographers.

Depart Other Depart Other
ment of Depart
ment of Depart
the
the
ments.
ments.
Seine.
Seine.

Number per establishment.

1 .......................................................................................................
2
.....................................................................................
3 .......................................................................................................
4 .......................................................................................................
5 .......................................................................................................
6-10 ................................................................................................
11-20 ................................................................................................
21-50 ................................................................................................
51-100 .............................................................................................
Over 100___________ ______________________________ _______

67
42
40
30
20
18
15
6
8
15

78
49
39
36
34
27
18
18
11
10

5
22
14
33
13
12

25
38
28
27
20
24
21
18

............. r ..........

« Over 20 per establishment.

With regard to sex, it was found that where women were employed
it was mostly as feeders or in accessory work, such as folding, stitch
ing, binding, etc. O f 5,451 compositors, 476, or about 9 per cent,
were females. O f the 15,333 persons enumerated, 2,973, or 19 per
cent, were females.
The following tables show, for each of the five prinoipal occupa
tions, the number of employees reported (not including apprentices),
by age groups and by length of service:
EMPLOYEES OF PRINTING AND LITHOGRAPHING ESTABLISHMENTS, OTHER
THAN APPRENTICES, IN 5 PRINCIPAL OCCUPATIONS, BY AGE GROUPS.
Compositors.
Age (years).

Male.

Female.

Lithogra
phers, en
Foremen of
pressmen, gravers, de
printing.
signers, and
transferers.

Pressmen.

Feeders,
printing and
lithograph
ing.

Num Per Num Per Num Per Num Per Num Per Num Per
ber. cent. ber. cent. ber. cent. ber. cent. ber. cent. ber. cent.
3.2
25.6
57.4
12.8
1.0

71
173
206
12

15.3
37.4
44.7
2.6

6
88
419
95
9

1.0
14.3
68.0
15.2
1.5

18
147
429
131
11

2.4
20.0
58.3
17.8
1.5

21
99
197
66
6

5.4
25.5
50.5
17.0
1.6

91
291
220
30
1

14.4
46.0
34.7
4.7
0.2

T otal. . . 4,167 |100.0

462

100.0

617

100.0

736

100.0

389

100.0

633

100.0

134
12 to 17............
18 to 24............ 1,068
25 to 44............ 2,392
532
45 to 64............
41
65 or over.......

683

FOREIGN STATISTICAL PUBLICATIONS---- FRANCE.

EMPLOYEES OF PRINTING ESTABLISHMENTS, OTHER THAN APPRENTICES,
IN 5 PRINCIPAL OCCUPATIONS, BY LENGTH OF SERVICE.
Lithogra
Foremen of phers, en
pressmen, gravers, de
printing.
signers, and
transferers.

Compositors.
Length of
service
(years).

Female.

Male.

Pressmen.

Feeders,
printing and
lithograph
ing.

Num Per Num Per Num Per Num Per Num Per Num Per
ber. cent. ber. cent. ber. cent. ber. cent. ber. cent. ber. cent.
Less than 1 ...
346
lt o 5............... 1,775
6 to 10..............
893
11 to 30............ 1,169
Over 30..........
108

8
41
21
27
3

30
252
93
87
1

6.4
54.4
20.0
19.0
.2

55
237
107
182
23

9
39
18
30
4

82
325
126
164
28

11
45
17
23
4

38
138
70
109
17

10
37
19
29
5

83
319
132
79
5

13
52
21
13
1

Total. . . 4,291

100

463

100.0

604

100

725

100

372

100

618

100

The next table shows the methods of wage payments employed in
the establishments answering this inquiry:
EMPLOYEES UNDER EACH METHOD OF WAGE PAYMENT IN PRINTING AND
LITHOGRAPHING ESTABLISHMENTS, BY OCCUPATIONS.
Employees under eacli method of wage payment in
Department of the
Seine.

Other Departments.

Total.

occupation.

Compositors:
M a l e ................................... .

Female...........................
Foremen of pressmen,
printing...........................
Pressmen............................
Feeders:
M ale..............................
Female...........................
Lithographers, etc.......... .
Foremen of pressmen,
lithographing.................

Time Piece
work. work.

Time
and
piece
work.

847
11

1,006
120

289
100

Time Piece
work. work.

Time
and
piece
work.

Time Piece
work. work.

Time
and
piece
work.

1,832
64

698
210

109
46

2,679
75

1,704
330

189
46

2
66

285
302

3
8

574
402

5
74

354
8
187

59
69

172
443
531

10
11
26

526
453
718

69
11
95

112

It will be observed that with the exception o f those of the female
compositors and the male compositors in the Department of the Seine,
the wages were mostly paid for time work. This is usually for a
10-hour day.
The table which follows shows, by age groups and principal occupa
tions, the average wages o f employees who, at the time of the investi
gation, were employed in the establishments where they had served
their apprenticeship, and the wages o f those who had received their
training elsewhere.

684

BULLETIN OF THE BUREAU OF LABOR.

AVERAGE DAILY WAGES OF EMPLOYEES IN PRINTING AND LITHOGRAPHING
ESTABLISHMENTS, BY AGE GROUPS AND OCCUPATIONS.
12 to 17 years of age.
Total wage Apprenticed
in same
workers.
establish
ment.

Occupation.

18 to 24 years of age.

Trained
elsewhere.

Apprenticed
m same
establish
ment.

Trained
elsewhere.

Aver
Aver
Aver
Aver
Aver
Num age Num age Num age Num age Num age
ber.
daily ber.
daily ber.
daily ber. daily
daily ber.
wages.
wages.
wages.
wages.
wages.
Compositors:
Mai©.......................... 4,538
459
Female....................
Foremen of pressmen,
618
printing......................
391
Pressmen......................
555
Feeders...........................
Lithographers
and
757
transferers.................
Foremen of pressmen,
146
lithographing............

$1.14
.61

100
66

$0.51
.34

31
2

$0.60
.48

588
119

$0.84
.54

466
49

$0.91
.66

1.39
1.09
.86

4
12
38

.45
.44
.50

2
6
28

.48
.56
.63

52
57
135

.81
.86
.79

36
35
103

.90
.92
.81

1.39

.56

.77

.89

1.15

1.30

.58

1.00*

1.03

25 to 44 years of age.

Occupation.

Apprenticed
in same
establish
ment.

Trained
elsewhere.

45 to 64 years of age.
Apprenticed
in same
establish
ment.

Trained
elsewhere.

Aver
Aver
Aver
AverNum age
Num age Num age Num
daily
daily ber. daily ber.
ber. daily ber.
wages.
wages.
wages.
wages.
Compositors:
M a le ....................................................
Female.................................................
Foremen of pressmen, printing............
Pressmen...................................................
Feeders......................................................
Lithographers and transferers............
Foremen of pressmen, lithographing..

621
101
126
65
57
93
27

$1.08
.64
1.24
1.04
.91
1.26
1.24

1,715
102
292
117
160
327
57

$1.22
.79
1.40
1.20
.95
1.43
1.48

73
4
13
12
5
19
4

65 years of age or over.

Occupation.

Apprenticed
in tame
establish
ment.
Num
ber.

Compositors:
M a le ....................................................
Female.................................................
Foremen of pressmen, printing..........
Pressmen...................................................
Feeders......................................................
Lithographers and transferers............
Foremen of pressmen, lithographing..

Trained
elsewhere.

$1.22
.82
1.49
.97
.89
1.25
1.03

448
8
82
49
23
106
17

$1.30
.76
1.60
1.24
.92
1.50
1.56

Age unknown.
Apprenticed
in same
establish
ment.

Trained
elsewhere.

Aver
Aver
Aver
Aver
age Num age Num age Num age
daily ber.
daily ber.
daily ber.
daily
wages.
wages.
wages.
wages.

$1.03

$1.06

1
1

1.16
.77

1
1

1.21
.58

8
5
1
9

1.20
1.47
.58
1.55

38
6

$1.15
.77

419

1
1
19

.68
.68
1.31

31
3
18
3

2
2

$1.49
.77
1.33
1.07
.74
1.31
1.47

It will be observed that in almost every case the average daily
wages o f persons trained elsewhere were higher than the wages of
persons who remained in the establishment^ where they had served
their apprenticeship. While the number of persons over 44 years o f

FOREIGN STATISTICAL PUBLICATIONS----FRANCE.

685

age was relatively small, the wages of persons in the age group 45 to
64 years were in most cases higher than those in any other age group.
The report further shows that in general, at least in the Depart
ment o f the Seine, workmen in the printing industry who have grad
uated from trade schools or have attended trade courses are better
paid than other workmen.
The schools for the printing trades at present in existence in France
are o f four kinds, namely: (1) Those organized and conducted as pub
lic institutions, o f which 1 is in Paris, 1 in Montevrain, 1 in Lisle,
and 1 in Nimes; (2) schools and courses organized by trade associa
tions, of which there were 2 by employers in Paris, and 8 by trade
unions, namely, 1 each in Paris, Lyon, Grenoble, Marseille, Toulouse,
Bordeaux, Nantes, and Havre; (3) trade courses organized in print
ing establishments, o f which there was 1 each reported in Paris, Dole,
Poitiers, and Havre; (4) trade schools and courses organized by
charitable and religious societies, o f which there were 5 in Paris and
1 each in Asnieres, Auteuil, Bordeaux, lie St. Honorat, Lisle, Mar
seille, Montpellier, Nice, and St. Etienne. A school at Paris and one
at Autun prepare females for printing trades. The schools above
enumerated are not all exclusively devoted to the printing and litho
graphing trades, but many of them teach other trades also.
The responses o f trade unions, employers’ associations, and indi
vidual employers to inquiries agree that there is a decline in trade
instruction. Among the reasons given the most frequent are the influ
ence o f machinery and the specialization o f work. Another reason
given is that parents do not care to pay the cost o f an appren
ticeship, but, on the contrary, want their children to earn wages as
soon as possible. As a result the young persons learn the rudiments
o f the work, but do not become finished workmen. The existence o f
many small establishments where the work is of an inferior grade
and is largely done by apprentices, and the desire for cheap labor on
the part o f larger establishments, have resulted in an excessive num
ber o f apprentices, and as a consequence the latter do not obtain the
training necessary for good workmen. In the lithographing trade
employers complain that the lack o f good workmen is due to the lim
itation placed by employees upon the number of apprentices. A n
other complaint is that the trade schools turn their best pupils toward
more intellectual careers. Owing to the decline in the standard of
apprenticeship and the excessive number of apprentices, with the con
sequent overstocking o f the labor market and insufficient wages,
workmen in the printing trade rarely have their children adopt their
own vocation, and as a result the children do not have the benefit of
the experience and direction of their parents.

686

BULLETIN OF THE BUREAU OF LABOR.

The custom o f signing written contracts is rapidly disappearing.
Some employers say that they do not want written contracts because
apprentices do not carry out their part of the agreement and there are
no practicable means for enforcing compliance on the part o f the
apprentice. In accordance with an agreement made between the
federations o f the employers and o f the employees in the printing
trades concerning compositors, all beginners in this trade are consid
ered as apprentices, with the exception o f young persons whose occu
pations consist exclusively o f unskilled manual labor. The work
men seem to be desirous of extending this arrangement to the other
printing trades.
Inquiries concerning the most satisfactory apprenticeship condi
tions elicited a considerable variety o f opinions. In the printing
trade proper some employers and most employees responding to the
inquiry appear to favor the mixed system of placing apprentices in
establishments and requiring them to attend complementary trade
courses in school. Special trade schools are regarded unfavorably by
many employers, because, they claim, the graduates are too preten
tious, even though their training is deficient, and because the teachers
are inclined to confine the instruction to the special work with which
they are most familiar. On the other hand, some employers consider
the trade school as preferable to the workshop, because the owner of
the shop does not have the time properly to look after the instruction
o f the apprentice. A t any rate, it is claimed that even if the trade
schools are useful it is only in the large centers that apprentices can
derive profit from them. Among partisans o f the shop apprentice
ship some prefer the small shops and others the large ones. In small
shops, it is claimed, the apprentice is better guided and is treated more
paternally, but he has less opportunity to familiarize himself with a
large variety o f work. In the large establishment he has less super
vision, but his trade instruction is more varied and extensive.
There were 40 employers of printing establishments who responded
in favor o f and 22 against trade schools; 4 declared exclusive shop
apprenticeship defective, while 91 preferred it. Only a few
employers expressed their opinions concerning the mixed system, and
o f these 12 were in favor o f and 17 against it. The workmen seemed
mostly to favor the mixed system. The trade unions generally
refrained from expressing their opinions upon the trade schools, the
lithographers, however, having declared against them.
Taken all in all, the employers and employees do not seem to have
any settled opinions, this being doubtless due to the fact that the effi
cacy o f any system o f apprenticeship depends largely upon the man
ner in which it is applied.

FOREIGN STATISTICAL PUBLICATIONS---- GERMANY.

687

GEKM ANY.

Erhebung uber die Arbeitszeit in gewerblichen Fuhrwerksbetrieben.
Yeranstaltet im Sommer 1902. Drueksachen des Kaiserlichen Statistischen Amts, Abteilung fur Arbeiterstatistik, Erhebungen Nr.
2. Berlin, 1904. cxii, 173 pp.
This report gives the results o f an investigation conducted by the
German commission o f labor statistics in June, 1902, into the hours
o f labor o f persons employed as teamsters or drivers and stablemen in
establishments engaged in the business of operating omnibus lines,
hacks, carriages, stagecoaches, furniture vans, baggage express, etc.
The investigation was limited to establishments regularly employ
ing at least one person rendering services for wages. An estimate
made by the commission, based upon the industrial census o f 1895,
placed the number of such establishments at about 29,000. Estab
lishments in which only the proprietor or members o f his family were
engaged in the occupations under consideration were excluded.
Schedules o f inquiry were sent to the various States of the Em
pire for distribution among the cities, towns, and rural communities.
O f these 3,143 were returned in such condition as to be available for
tabulation. A number of establishments made returns for tlie summer
months only. Hence in the tables given the returns for the summer and
for the winter months are mostly given separately. For this purpose,
the summer months include the period from April 1 to September 30,
and the winter months the rest of the year. O f the available sched
ules returned, 51.9 per cent had been filled out by employers and 48.1
per cent by employees. The total number of persons employed in the
establishments reported was 24,119. O f this number 18,433 were em
ployed as teamsters and drivers, 3,925 as stablemen, and the remaining
1,761 in office work. Classified according to age, 18,197 teamsters and
drivers and 3,858 stablemen were over 16 years of age and 236 team
sters and drivers and 67 stablemen were under 16 years o f age. The
following two tables show the number o f establishments and the
number o f teamsters, drivers, and stablemen over 16 years o f age
grouped according to the hours o f labor, including periods of rest:

688

BULLETIN OE THE BUREAU OF LABOR.

NUMBER OF ESTABLISHMENTS AND TEAMSTERS AND DRIVERS OVER 16
YEARS OF AGE EMPLOYED, GROUPED ACCORDING TO HOURS OF LABOR
PER DAY.
Summer months.
Hours of labor per day.

10 or under____ ____ _____ ______ ______
12 or over 10..............................................
14 or over 12.............................................. .
16 or over 14....... ........................................
18 or over 16.................................... ..........
Over 1 8 ........................................................
Total _ ..............................................
a 34 establishments employing 41
months only.

Winter months, (a)

Team
Team
cent
Estab sters and Per
sters and Percent
of team Estab
of team
lish
drivers sters
lish
drivers
and ments. over 16 sters and
ments. over 16 drivers.
years. drivers.
years.
34
1,443
8,898
5,927
1,850
45

0.2
7.9
48.9
32.6
10.2
.2

140
883
1,373
521
140
23

386
3,557
8,919
3,781
1,474
39

2.2
19.6
49.1
20.8
8.1
.2

3,114 | 18,197

100.0

3,080

18,156

100.0

persons were in operation during the

summer

15
252
1,545
1,038
237
27

NUMBER OF ESTABLISHMENTS AND STABLEMEN OVER 16 YEARS OF AGE
EMPLOYED, GROUPED ACCORDING TO HOURS OF LABOR PER DAY.
Summer months.
Hours of labor per day.

Winter months.

Estab
Stable Per cent Estab
Stable Per cent
lish men over of stable lish men over of stable
men.
men.
ments. 16 years.
ments. 16 years.

10 or under.................................................
12 or over 10...............................................
14 or over 12................................................
16 or over 14...............................................
18 or over 16.................................. .............
Over 18.......................................................

7
104
362
110
41
5

8
657
2,389
724
74
6

0.2
17.0
61.9
18.8
1.9
.•2

29
208
274
84
29
4

45
1,107
1,897
747
57
4

1.2
28.7
49.1
19.4
1.5
.1

T otal.................................................

629

3,858

100.0

628

3,857

100.0

O f the stablemen, 61.9 per cent, and of the teamsters, 48.9 per cent,
worked from 12 to 14 hours per day in the summer, and 49.1 per cent
o f the stablemen as well as o f the teamsters worked from 12 to 14
hours per day in the winter season.
O f the persons working what may be considered as comparatively
short hours—namely, 12 per day or less—the proportion o f stablemen
was greater than that o f the teamsters both in the summer and in the
winter season. In general, a larger proportion of teamsters and
drivers worked 12 hours per day or less in towns or villages o f under
2,000 population than in the large cities. The same is true in the
case o f stablemen in the winter season.
In general, the proportion of employees working 12 hours or less
was greater in the small establishments—that is, those employing
from 1 to 8 persons each—than it was in the larger establishments.
O f the 18,197 adult teamsters and drivers for whom returns were
received, 3,941 were engaged during the summer months in the trans
portation o f passengers— that is, on omnibus lines, hacks, carriages,
and stagecoaches— and 3,916 during the winter months. These are
grouped according to hours o f labor and according to the class o f
service in the following table;

FOREIGN STATISTICAL PUBLICATIONS---- GERMANY.

68#

NUMBER AND PER CENT OF DRIVERS, OVER 16 YEARS OF AGE, ENGAGED IN
THE TRANSPORTATION OF PASSENGERS, WORKING A SPECIFIED NUMBER OF
HOURS, BY CLASS OF SERVICE.
A c tu a l nu m ber.

Summer months.
Class of service.

Public omnibus lines___
Public hacks.....................
Carriages..........................
Stagecoaches...................
Hotel omnibuses..............

Winter months.

10
or 14 or 16 or 18 or Over 10 ! 12 or 14 or 16 or 18 or
hrs. 12
hrs. over over over over Over
over over over 18
or over
or
18
10
12
14
10
16
12
16
14
un hrs.
un
hrs.
hrs.
hrs.
hrs. hrs.
der.
der. hrs. hrs. hrs. hrs.

3
1
5

80
444
15
28
4

7
792
326
177
20

118
455
24
81
86

995
86
15
66
88

21
11
5
3

80
489
167
32
4

7
907
182
169
20

116
281
13
83
87

994
69
4
66
81

1.2
2.9
1.4
1.4

6.7
27.6
44.3
9.0
1.8

0.6
51.3
48.3
47.5
9.3

9.7
15.9
3.4
23.3
40.5

82.9
3.9
1.1
18.5
37.7

2
2
1
20

P e r cen t.

Public omnibus lines___
Public hacks.....................
Carriages..........................
Stagecoaches...................
Hotel omnibuses..............

0.2
.3
1.4

6.6
24.9
3.9
7.3
1.8

0.6
44.5
85.6
49.7
9.1

9.8
25.5
6.3
22.8
39.1

82.8
4.8
3.9
18.5
40.0

0.2
.1
.3
10.0

0.1
.1
.3
9.3

The foregoing table shows that the duration of the hours of work
per day varies greatly with the class of service. Thus in establish
ments which observe regular fixed time schedules or whose operations
depend upon the arrival and departure of railway trains, the hours
are longer than in establishments which operate independently o f
such schedules. This is strikingly illustrated in the case o f the public
omnibus lines. O f 1,202 drivers engaged in this service in the sum
mer season, 997, or 83 per cent, were employed over 16 hours per day,
and 1,115, or 92.8 per cent, over 14 hours per day. Only 6.6 per cent
of the public omnibus drivers were employed 12 hours or less per day.
In general, the table shows that of each class of drivers employed in
the summer more than 16 hours per day, the public omnibus drivers
are represented by 83 per cent, the hotel omnibus drivers by 50 per
cent, the stagecoach drivers by 18.8 per cent, the hack drivers by 4.9
per cent, and the carriage drivers by 3.9 per cent. In the winter
season the relative hours of labor were very nearly the same.
The number o f young persons employed during the summer season
as drivers and stableboys was only 1.36 per cent of the total number
o f both classes of employees reported. In the winter season the pro
portion was 1.35 per cent. The majority of the young persons were
employed in large establishments with more than 20 employees, their
hours o f labor ranging between 8 and 12 hours per day, exclusive o f
periods o f intermission. O f the drivers 70.8 per cent were thus em
ployed from 8 to 12 hours per day during the summer months and
69.8 per cent during the winter months. O f the stableboys 77.6 per
cent were employed from 8 to 12 hours per day during the summer
months and 67.1 per cent during the winter months.
50—No. 60—05 M-----20

690

BULLETIN OF THE BUREAU OF LABOR.

With regard to Sunday and holiday labor, the returns show that
work on these days was performed by 17,841 teamsters and drivers
and 2,836 stablemen, including persons under 16 years of age. Com
paring these figures with the total number of employees of each class
for which returns were received, it is found that of the teamsters and
drivers only 592, or 3.2 per cent, and o f the stablemen 1,089, or 27.7
per cent, were entirely exempted from labor on these days. As a rule
the hours for each class of employees were shorter on Sundays and
holidays than on week days. For 9,617, or 52.2 per cent, of the team
sters and drivers and 1,426, or 36.3 per cent, o f the stablemen the
Sunday and holiday labor did not exceed six hours.
The data relating to the housing of the employees show that 3,855,
or 17.5 per cent, o f the adults and 40, or 13.2 per cent, o f the young
persons under 16 years of age resided with their employers. O f the
adults, 2,930, or 13.3 per cent, received board in addition to lodging,
the remaining 925, or 4.2 per cent, received only lodging. The num
ber o f adults who merely boarded with their employers was compara
tively small, being 362, or 1.6 per cent.
The report shows that the relative number o f employees who
boarded and lodged with their employers increased as the population
o f the community in which they were employed decreased. While in
cities with a population of 100,000 or over only 2.6 per cent o f the
adult employees received board and lodging from their employers, the
number o f such persons employed in communities of less than 2,000
population is represented by 71.2 per cent. Similar conditions are
found to prevail when reference is made to the size of establishments.
While in establishments with 21 or more employees, only 1.1 per cent
o f the adult employees boarded and lodged with their employers, the
number o f such persons employed in establishments with only one
employee was 56.5 per cent.

Die Fortschritte der amtlichen Arbeitsstatistik in den wichtigsten
Staaten. Erster Theil. Beitrage zur Arbeiterstatistik Nr. 1.
Bearbeitet im Kaiserlichen Statistisclien Amt, Abteilung
Arbeiterstatistik. 1904. viii, 212 pp. .

fiir

This publication is Part I of the first o f a series of monographs to
be issued by the division of labor statistics of the German imperial
statistical bureau, and relates to the development o f official labor sta
tistics in the United States, Great Britain and Ireland, France, Bel
gium, Austria, and the German Empire.
The report gives for each o f the countries named a brief outline of
the official statistical work undertaken before the organization o f the
regular bureau o f labor statistics, an account of the causes and o f the
several steps which led to the establishment o f the latter, and a

FOREIGN STATISTICAL PUBLICATIONS---- GERMANY.

691

description o f its present organization. This is followed in each case
by a list and a concise review o f the publications of the bureau from
the time o f its organization to the year 1903, and a review o f the pub
lications o f other official authorities and commissions concerning
labor.
G R E A T B R IT A IN .

Directory of Industrial Associations in the United Kingdom in 1903.
Published by the Labor Department of the British Board o f Trade.
193 pp.
The present volume is the third edition of the Directory o f Indus
trial Associations, and brings the information up to the end of July,
1903. The first and second editions were published in 1899 and 1901,
respectively.
The directory gives the title of each organization and the name and
address o f the secretary. The organizations are arranged according
to their character and in most cases according to the industries to
which they pertain. With regard to character they are classified as
follows: Employers’ associations, trade unions, trades councils, fed
erations o f trade unions, federations of trades councils, trade union
congresses, conciliation and arbitration boards and joint committees,
free labor associations, central cooperative associations, workmen’s
cooperative distributive societies, workmen’s cooperative productive
societies, cooperative agricultural societies, cooperative credit banks,
and friendly societies. The employers’ associations include only those
which are concerned with matters relating to the employment of
labor, associations having purely commercial or technical objects
being excluded.

DECISIONS OF COVETS AFFECTING LABOE.
[This subject, begun in Bulletin No. 2, has been continued in successive issues.
All material parts o f the decisions are reproduced in the words of the courts,
indicated when short by quotation marks, and when long by being printed solid.
In order to save space, matter needed simply by way of explanation is given in
the words of the editorial reviser.]

D ECISION S U N DER S T A T U T O R Y LAW .
E m ployers’

L i a b i l i t y — R ailro ad

C o m p a n ie s — F e l l o w - S e r v a n t

Lodwich Lumber Company v. Taylor,
Court of Civil Appeals of Texas, 87 Southwestern Reporter, page
858.— This case arose under the Texas statute abolishing the commonL a w — L ogging R ailro ad —

law rule as to fellow-servants on railroads and street railways (Art.
4560f, Civ. Stat., 1897). The lumber company owned and operated,
purely in connection with its business and not as a common carrier, a
few miles o f road, a locomotive, and some logging and lumber cars,
and the case hinged on the application of the above statute to such a
road.
Taylor was acting as brakeman on this road when he received the
injuries for which this action was brought, and judgment had been in
his favor in the district court of Marion County. This judgment was,
on appeal, reversed on errors of no special interest. The court ruled,
however, that the fellow-servant law applied to the road in question.
With reference to this point, Judge Eidson, speaking for the court,
said:
Appellant’s insistence is that the words, “ a railroad,” as used in
article 4560f (supra), relate only to such railroads as are common
carriers, and that the reason for the enactment of this article in favor
o f employees o f railroads was the interest the public had in the con
tinuous operation o f these agencies. We do not think appellant’s
contention is sound, nor is the reason it advances in support o f same.
W e think the principal and paramount reason for the enactment of
the article under consideration was the protection o f the employees o f
persons or corporations operating railroads, by encouraging and mak
ing it to the interest o f such persons or corporations to procure com
petent, safe, and reliable persons to operate their cars, locomotives,
and trains. This evidently is the view o f our supreme court as to the
reason upon which said article was based. Judge Brown, delivering
692

DECISIONS OF COURTS AFFECTING LABOR.

693

the opinion o f that court in Railway Co. v. Howard (Tex. Sup.; 80
S. W., 229), uses this language:
“ I f we consider the perilous position o f men while actually engaged
in the work o f operating trains, and their attitude toward other
employees, whether upon the same trains or not, which renders it very
difficult to protect themselves against the negligence o f others, the
discrimination appears to be just as a provision for such employees
and their families, i f injured, and a wise policy, tending to excite the
diligence o f their employers to procure safe and reliable persons to
perform the work affecting the safety of train service.”
The reason for the enactment of this statute excludes the idea that
the legislature did not intend it to apply to all railroads, but intended
to limit its application only to such railroads as are common carriers.
The service in the operation o f railroads that are common carriers is
no more dangerous than that in the operation o f other railroads.
While the persons or corporations operating railroads which are not
common carriers may not be entitled to the privileges which are pos
sessed by those that are common carriers, they are liable for al| inju
ries resulting from their negligence to property or persons by the
operation o f such railroads. (1 W ood’s R. R. Law, sec. 2; 1 Elliott
on Railroads, sec. 1.)
In treating o f the construction to be placed upon words in employ
ers’ liability acts, it is stated in Elliott on Railroads (vol. 3, sec. 1338),
that where a municipal corporation hired a railroad train, and used
it on a temporary track constructed on its own property, it was held
to be engaged in operating a railroad, and that it was liable, as the
operator o f a railroad, to an employee who received an injury while
riding on the train. And in support of this statement a number of
decisions o f the supreme court of Massachusetts are cited. The State
o f Massachusetts has a statute giving an employee in the service of a
railroad company a right of action where, “ by reason o f the negli
gence o f any person in the service o f the employer, who has the charge
or control o f any signal, switch, locomotive engine, or train upon a
railroad, the employee, or in case the injury results in death, the legal
representatives o f such employee, shall have the same right o f compen
sation and remedies against the employer as if the employee had not
been an employee of, nor in the service of the employer, nor engaged
in its work.” (St. Mass. 1887, ch. 270, sec. 1, subd. 3.) And the
supreme court o f that State, in passing upon the meaning o f the
words “ a railroad,” as used in that statute, in the case of Coughlan v.
City o f Cambridge (Mass.) (44 N. E., 218), say:
“ A t the time of the accident the defendant was engaged, by means
of a locomotive and train, and hands to manage the same, hired by it
from the Fitchburg Railroad, in transporting gravel from one portion
to another o f certain premises held and owned by it in connection
with its waterworks, for the purpose of improving the same. The
track was laid by, and with the exception of the ties belonged to, the
railroad, and was to be removed by it when the work was finished.
The improvement which the defendant was engaged in making was
for its own benefit and on its own premises; and when the relation o f
master and servant exists between employer and employee, as it did
here between the plaintiff and defendant and others engaged in the
work, we see no reason why St. 1887, ch. 270, should not apply to the
city or town. The track was a short and temporary affair, and the

694

BULLETIN OF TH E BUREAU OF LABOR.

use o f it and o f the locomotive and cars was to continue only for a
short time, but we think that it was a railroad, within the meaning
o f the act.”
We conclude that the words “ a railroad,” used in said article 4560f,
apply to and include the railroad operated by appellant, as shown by
the record in this case.

E m p l o y e r s ’ L i a b i l i t y — R a il r o a d
H ours

C o m p a n ie s — S t a t u t e

S e r v ic e — C o n s t r u c t io n — C o n t r ib u t o r y

L im it in g

N e g l ig e n c e —

Smith v. Atchison, Topeka and Santa Fe Railway Company, Court
of Civil Appeals of Texas, 87 Southwestern Reporter, page 1052.—
This was an action by A. E. Smith to recover damages for injuries
received while in the service o f the railway company above named
as engineer. The injury was received in the Territory o f Arizona. A
law o f the Territory prohibits the employment of certain classes of
railroad employees, including engineers, for more than sixteen con
secutive hours, except in cases of casualty or actual necessity, without
allowing an interval of nine hours for rest. An agreement was also
alleged to be in existence between the railroad company and its
engineers to the effect that after sixteen hours’ service an engineer
could register and claim eight hours’ actual rest before again going
to work.
According to the evidence, Smith registered for eight hours’ rest
on May 1, 1903, after nearly seventeen hours’ continuous service, and
went to his home. He was soon sent for by the master mechanic o f
the road and asked to take out a train. Smith protested, saying he
needed rest, but on the representation of the master mechanic that
the run would require not more than five or six hours, he agreed to
go. The run actually occupied a much longer time, due in part to the
alleged negligence of the company in employing an incompetent
telegraph operator. On the return, after more than thirty-one
hours’ service, the train on which Smith was working collided wTith
another train on the company’s road, the accident being caused by
the failure o f Smith to run his train on a siding, which failure he
alleged was due to his unavoidable drowsiness caused by his unlawful
employment for a period almost twice as long as that prescribed by
statute.
Judgment in favor o f the railroad company was rendered in the
district court o f E l Paso County, Tex., from which an appeal was
taken, with the result that the judgment o f the lower court was a f
firmed. The grounds for this affirmance and the construction of the
statute in question are presented in the following extracts from the
opinion o f the court, which was delivered by Judge F ly :
The allegation that the laws o f Arizona prohibit railway com
panies from working their employees for more than sixteen consecu

DECISIONS OF COURTS AFFECTING LABOR.

695

tive hours, except in case of casualty or actual necessity, and also
provide a fine for a violation, would not excuse the contributory
negligence of appellant [Smith], which arose from his working for
such a length o f time that he was unfitted for business. He knew his
physical condition far better than the railway company could know it,
and can not excuse his carelessness in falling asleep on his engine
while it was standing on the main track by the fact that he was re
quested by the master mechanic to take out a train after he had been at
work for about seventeen hours. Neither is it any excuse to say that
he was detained longer on the trip than he expected to be by the care
lessness o f a telegraph operator. It may have been a violation o f the
statute upon the part of the appellee to require appellant to work
over sixteen hours, unless there was actually necessity for it, and in
case others had been injured through the violation o f law appellee
would doubtless be held liable; but appellant voluntarily acted with
appellee in the violation o f the statute, and will be held to have as
sumed all risks arising from such act. The allegations fail to show
that there was no actual necessity for requiring the extra work.
Appellant in this case was a skillful engineer, and does not allege
that he did not fully appreciate the dangers o f running an engine for
so long a time as he did. There is no allegation showing that appel
lant was compelled to make the trip that he did, but it appears that
he was requested to go, and was induced to consent by a representa
tion that it would take only six hours to make the trip. He alleged
that he was detained three hours at Pinta, and there is nothing to
show that he could not have slept, or did not sleep, there while so
delayed.
The petition presents a clear case of appellant having been hurt
through his own negligence in stopping his engine on the main line
instead o f taking a siding, as he should have done.
The judgment is affirmed.

P e o n a g e — C o n s t i t u t i o n a l i t y o f S t a t u t e — S c o p e o f L a w —Glyatt
v. United States, United States Supreme Court, 25 Supreme Court
Reporter, page 429.—This case was before the Supreme Court on a

writ to the circuit court of appeals for the fifth circuit to review a
judgment o f conviction for violation of the law against peonage in
the circuit court for the northern district of Florida. The judgment
was reversed on account o f lack of evidence to support the indictment,
but the constitutionality o f sections 1990 and 5526, Revised Statutes,
under which the action was brought, was affirmed. These sections
provide for the abolition o f peonage in New Mexico and in other
Territories and States of the Union and fix penalties for violation of
the statute.
The following is quoted from the opinion o f the court, as delivered
by Justice Brewer:
The constitutionality and scope of sections 1990 and 5526 present
the first questions for our consideration. They prohibit peonage.
What is peonage? It may be defined as a status or condition of

696

BULLETIN OF TH E BUREAU OF LABOR.

compulsory service, based upon the indebtedness o f the peon to the
master. The basal fact is indebtedness. But peonage, however cre
ated, is compulsory service—involuntary servitude. The peon can
release himself therefrom, it is true, by the payment o f the debt, but
otherwise the service is enforced. A clear distinction exists between
peonage and the voluntary performance of labor or rendering o f
services in payment o f a debt. That which is contemplated by the
statute is compulsory service to secure the payment of a debt. Is
this legislation within the power of Congress? It may be conceded,
as a general proposition, that the ordinary relations o f individual
to individual are subject to the control of the States and are not
intrusted to the General Government; but the thirteenth amendment,
adopted as an outcome o f the civil war, reads:
“ S e c . 1. Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly con
victed, shall exist within the United States, or any place subject to
their jurisdiction.
“ Sec.

2. C on gress

s h a ll

have

pow er

e n fo rc e

th is

a r tic le

a p p r o p r i a t e l e g i s l a t i o n .”

This amendment denounces a status or condition, irrespective o f
the maner or authority by which it is created.
It is not open to doubt that Congress may enforce the thirteenth
amendment by direct legislation, punishing the holding o f a person
in slavery or in involuntary servitude except as a punishment for
crime. In the exercise o f that power Congress has enacted these
sections denouncing peonage, and punishing one who holds another
in that condition o f involuntary servitude. This legislation is not
limited to the Territories or other parts o f the strictly national
domain, but is operative in the States and wherever the sovereignty
o f the United States extends. We entertain no doubt o f the validity
o f this legislation, or its applicability to the case o f any person
holding another in a state o f peonage, and this whether there be a
municipal ordinance or State law sanctioning such holding. It
operates directly on every citizen o f the Bepublic, wherever his
residence may be.
Section 5526 punishes “ every person who holds, arrests, returns,
or-causes to be held, arrested, or returned.” Three distinct acts are
here mentioned—holding, arresting, returning. The disjunctive
■
“ or ” indicates the separation between them, and shows that either
one may be the subject o f indictment and punishment. A party
may hold another in a state of peonage without ever having arrested
him for that purpose. He may come by inheritance into the pos
session o f an estate in which the peon is held, and he simply con
tinues the condition which was existing before he came into pos
session. He may also arrest an individual for the purpose o f placing
him in a condition o f peonage, and this whether he be the one to
whom the involuntary service is to be rendered or simply employed
for the purpose o f making the arrest. Or he may, after one has
fled from a state o f peonage, return him to it, and this whether he
himself claims the service or is acting simply as an agent of another
to enforce the return.

DECISIONS OF COURTS AFFECTING LABOR.

697

P u b l ic C o n t r a c t s — U se o f S t o n e D r essed O u t s id e t h e S t a t e —
O r d i n a n c e — C o n s t i t u t i o n a l i t y — Allen v. Labsap et al., Su
preme Court of Missouri, 87 Southwestern Reporter, page 926.—This
C it y

was an action to enforce a lien for street improvements in the city o f
St. Louis, the cost of which was assessed against abutting property.
Among the defenses offered by the protesting owners was an objec
tion to an ordinance which requires all dressed rock, granite, or stone
used in public works to be dressed within the State of Missouri, the
defendants claiming that the ordinance is unconstitutional.
The tax had been held valid in the St. Louis circuit court, and this
judgment was affirmed on appeal. Only the matter of the ordinance
above referred to is of interest here, and the following extracts from
the opinion of the court, as delivered by Judge Lamm, show the
grounds on which the constitutionality o f this ordinance was main
tained :
Appellants insist that the ordinance included in the foregoing con
tract provision rendered the tax bill void because (1) it is in viola
tion o f section 27, article 6, of the scheme and charter [o f the city o f
St. Louis], which provides that the board o f public improvements
shall “ let out said work by contract to the lowest responsible
bidder * * * ; ” (2) because it is violative o f section 4, article
2, o f the State constitution, providing: “ That all persons have a
natural right to life, liberty and the enjoyment of the gains of their
own industry; that to give security to these things is the principal
office o f government, and that when government does not confer this
security, it fails o f its chief design; ” (3) because it is violative of
section 30, article 2, o f the State constitution, directing “ that no
person shall be deprived o f life, liberty or property without due
process o f law; ” (4) because it violates section 1, article 14, o f the
Federal Constitution, providing that “ no State shall make or enforce
any law which shall abridge the privileges or immunities o f citizens
o f the United States, nor shall any State deprive any person o f life,
liberty, or property without due process of law, nor deny to any per
son within its jurisdiction the equal protection of the la w s ;” (5)
because it violates section 2, article 4, of the Federal Constitution,
providing that “ the citizens o f each State shall be entitled to all
privileges and immunities of the citizens o f the several States; ” and
(6) because it violates the interstate commerce clause of the Federal
Constitution, providing that “ the Congress shall have power * * *
to regulate commerce * * * among the several States, * * * n
(sec. 8, art. 1). The learned counsel for appellants does not seem to
have been able to refer us to any line o f authoritative or persuasive
utterances o f the recognized oracles o f the law holding that a regula
tion o f the^ character in question impinges upon the constitutional
right o f Congress to regulate commerce between the several States.
In New York, by a divided court, some consolation may be found for
the theory advanced (People ex rel. v . Coler, 166 N. Y. 144, 59 N. E.
776; People ex rel. v. Coler, 166 N. Y. 1, 59 N. E. 716; 52 L. R. A .
814,82 Am. St. Rep. 605) [see Bulletins No. 35, p. 805; No. 40, p. 615] ;

698

BULLETIN OF TH E BUREAU OF LABOR.

but these were cases where by direct proceedings the right to enforce
a State labor law wTas challenged, and the authority of the cases is
greatly weakened by Atkin v. Kansas, 191 U. S. 207, 24 Sup. Ct. 124,
48 L. Ed. 148 [see Bulletin No. 50, p. 177], in which the Supreme Court
o f the United States held that, as to public improvements (the con
stitutionality o f such law, so far as private work was concerned, not
being decided), it was within the power of the State, as guardian and
trustee o f its people, to prescribe the conditions upon which it will
permit public work to be done. On its face, it must be conceded the
ordinance is innocent of blame in this regard, for it in no wise and
nowhere relates to interstate commerce, nor is the right o f any citizen
o f the United States to at any time ship stone o f any character,
dressed or undressed, anywhere by rail, water, or otherwise, referred
to or interfered with, directly or indirectly, nor is the traffic in such
rock regulated, unless it can be said that the extent o f the market
for rock dressed elsewhere than in the territorial limits o f Missouri
may be inferentially lessened by excluding such rock from place in
the public improvements o f St. Louis. But on this score it may be
said that the reasonable right to select material for street improve
ments exists and is to be accorded to a municipal government under
the repeated adjudications of this court.
For the present, in order to crystallize the assignments of error, we
call attention to the fact that, excluding the interstate commerce con
tention, the insistence o f appellants in their first objection, to wit,
that the ordinance tends to restrict competition and to impair the
right o f the citizen to have the contract let to the lowest responsible
bidder, includes the root of the matter involved in the other conten
tions relating to due process o f lawr, to the enjoyment o f the gains o f
one’s own industry, and to the abridging of the privileges and immu
nities o f citizens of the United States, and may be logically treated
together. Considering that objection, it may be said, in limine, that
appellants have no case here directly involving the ordinance in ques
tion as the owners of the stone dressed outside the territorial limits o f
the State, nor as dealers in such stone, nor as contractors whose right
to do business in such stone have been interfered with. Appellants’
right to complain would seem to be based on the theory that they have
been compelled to pay more for this street improvement by virtue o f
the existence o f that ordinance than they vTould be otherwise com
pelled to pay. I f the ordinance tended to prevent competition and to
increase the price, they have suffered injury and have cause o f com
plaint. Otherwise, not. It was in evidence that the rock used in this
street improvement was shipped as undressed granite from the State
o f Georgia, and that it was dressed at this end of the line. Evidence
was introduced below on the question of restricting competition and
the increase o f price, appellants showing such a condition o f things by
one witness that an increase o f price and a restriction o f competition
might be inferred. On the other hand, respondent introduced coun
tervailing testimony tending to show the contrary, and that the rock
could be dressed as cheaply in Missouri as it could be at the quarries
in Georgia, that the freight on undressed rock was greater [sic] than
on dressed, and that when rock was shipped, dressed, the vicissitudes
o f the trip resulted in broken edges, thereby necessitating expense for
redressing on the ground. Appellants treated the issues as riding off

DECISIONS OF COURTS AFFECTING LABOR.

699

on a question o f fact rather than on a mere construction of the lan
guage o f the ordinance, and therefore asked, and the court gave them,
the following instruction:
“ The court declares the law to be that, under the contract offered in
evidence, it was required that all the work of dressing rock, granite, or
stone required by said contract should be done within the territorial
limits o f the State o f Missouri, and said work could not under said
contract be done in any other portion of the United States. The
court further declares the law to be that, if it shall find from the
evidence that the effect o f the provision in said contract above men
tioned was to prevent competition and to increase the cost of doing
the work referred to in the evidence, and that said provision could not
in any way tend to procure a better class or quality of work under the
contract referred to in the evidence, the said contract was in violation
o f the provision o f the charter o f the city of St. Louis, and was illegal
and void as against defendants in this case, and the special tax bill
issued in payment o f said contract was also illegal and void.”
And, having given that instruction, the court found the facts
against appellants. With evidence sustaining and warranting the
court to so find, we are not at liberty to disturb the finding.
(Comer
v. Stratham, 173 Mo. 246, 72 S. W. 1074; Butler County v. Bank, 143
Mo. 13, 44 S. W. 1047.)
The case then, on this point, must be decided here with the fact found
that appellants suffered no injury from the existence of the ordinance,
that the right o f competition was not restricted nor the price of the
improvements increased thereby, and in the face o f the axiomatic
principle o f law that wrong done (or duty neglected) and injury
suffered must coincide to be actionable. It has been held that the
selection o f a patented cement as a binding for the macadam used in a
street improvement does not militate against the charter provision
now under consideration. (Sw ift v. City o f St. Louis, 180 Mo. 80,
79 S. W. 172.) So, too, it has been held that the designation o f
Trinidad Lake asphalt, although the whole natural supply o f that
article was exclusively owned by a given group of persons, was not
obnoxious to the clause in question. ('Verdin v. St. Louis, 131 Mo. 26,
33 S. W. 480, 36 S. W. 52; Barber Asphalt Co. v. Hunt, 100 Mo. 22,
13 S. W. 98, 8 L. R. A. 110,18 Am. St. Rep. 530; Barber Asphalt Co.
v. Field, 86 S. W. 860, handed down March 30, 1905, but not yet
officially reported.) Without facts before us justifying the distin
guishing o f these cases from the one at bar, the doctrine there
announced would seem to be decisive o f the point under consideration,
for the mischief o f a lack of competition and an increased price is
much more readily apparent under the facts in the Verdin case, the
Hunt case, and the Field case than in the case at bar. It results
from these views that the contention of appellants must be disallowed.

R a il r o a d

C o m p a n ie s — P a y m e n t

S tatutory

P e n a l t y — St.

W ages

D is c h a r g e d

E m

Louis Southwestern Railway
Company v. Brown, Supreme Court of Arkansas, 86 Southwestern
Reporter, page 99£.—This case arose under the provisions o f section
ployees—

700

BU LLETIN OF TH E BUREAU OF LABOR.

6243, Sand. & H. Dig., which directs the payment of all wages due at
the discharge o f an employee of a railroad company under penalty of
a continuation o f the daily wage for sixty days or until prior pay
ment. Brown sued the company above named under this statute and
secured a judgment in the circuit court of Miller County. The com
pany appealed and the judgment was affirmed.
The balance due Brown at his discharge on August 27, 1902, was
$3.25. The company required an identification certificate and ar
ranged with Brown to send his check by mail to Texarkana, agreeing
to have it there within three days. A t the time set and twice sub
sequently at intervals of two or three days Brown called at the com
pany’s office, but the check was not at hand. It arrived on the 5th of
September and was held by the cashier until the 21st and then
returned to the superintendent’s office at Pine Bluff, as Brown did not
call again after the 5th. On these facts a judgment was rendered
for the wages due and for a penalty of $67.50.
In sustaining this judgment, Judge Hill, speaking for the court,
used in part the following language:
It was an act of indulgence to the railroad company that Brown
consented to receive his check at Texarkana three days after dis
charge, instead o f standing on his statutory right for immediate pay
ment. He made, beginning the third day after his discharge, three
trips for his check. The indulgence of three days was lengthened into
nine. The statute was passed to prevent railroads thus delaying the
payment o f their debts to their employees, especially the helpless
class dependent upon their labor for their daily sustenance. The
general assembly o f 1903, recognizing the impossibility o f large rail
road corporations paying instantly and at the place o f discharge,
without disarranging their orderly system of bookkeeping, amended
this act so a.s to give them seven days from the discharge to have the
check sent to any station desired by the creditor. (K irby’s Dig., sec.
6649.) This action is controlled by the former law, but it is note
worthy that, had the present more lenient statute been in force, the
appellant delayed the employee beyond its term. There is no finding
that Brown absented or secreted himself so as to avoid payment, and
take the case into the exception o f section 6650, Kirby’s Dig. The
contention is that he should have continued calling at the cashier’s
desk. The statute does away with that method of collection, and it
puts the duty on the railroad company o f paying at once: and it
would have been more consonant to its spirit for the cashier to have
been calling on Brown, instead of Brown calling on the cashier, after
the railroad was in default.
The constitutional questions touching this statute were settled in*
Leep v. Ry. Co., 58 Ark. 407, 25 S. W. 75, 23 L. R. A. 264, 41 Am. St.
Rep. 109, and Ry. v. Paul, 64 Ark. 83, 40 S. W. 705, 37 L. R. A. 504,
62 Am. St. Rep. 154. [See also Bulletin No. 23, p. 585.]
The judgment is affirmed.

DECISIONS OF COURTS AFFECTING LABOR.

701

D ECISIO N S U N DER COMMON LAW .
E m plo yers’

L i a b i l i t y — R a il r o a d

C o m p a n ie s — R e l e a se — C o n

Texas and Pacific
Railway Company v. DashieTl, Supreme Court of the United States,
25 Supreme Court Reporter, page 737.— George Dashiell was injured
s t r u c t io n

G eneral and

P a r t i c u l a r W o rd s—

by the collision o f two trains on the road o f the company named
while in its employment. A verdict for damages was secured in the
United States circuit court for the northern district o f Texas for
injuries affecting his vision and his “ entire mental and nervous
system.” This judgment was affirmed by the circuit court o f appeals
and afterwards by the Supreme Court, Justices Brewer, Brown, and
Peckham dissenting.
The chief ground o f the company’s appeal was that Dashiell had
signed a release subsequent to the accident and that a proper inter
pretation o f the same would defeat the claims made for damages.
Dashiell’s claim was that the release extended only to the injuries
named therein and did not relate to the injuries to sight, nervous
system, etc., for which action for damages was brought. The terms
o f the release and the construction put on it by the Supreme Court
appear in the following extracts from the opinion o f the court, which
was delivered by Justice McKenna:
Let us analyze the release. It commences with the recital o f the
relation o f defendant in error [Dashiell] with plaintiff in error, and
that he “ sustained certain personal injuries in the manner and o f
the character described, to the best of his knowledge and ability.”
Then follows this: “ Extra east eng. 189 struck caboose of extra
east eng. 255, 2| miles east o f Eastland, bruising my body, right leg,
right arm, and giving me a scalp wound.” For the injuries com
pensation was fixed at $30, with the additional consideration, let us
say, in order to fully exhibit the contention o f plaintiff in error, o f
the desire mutually entertained by him and defendant in error (we
quote from the release) “ to maintain amicable and pleasant rela
tions and avoid all controversy in respect to said matter.” Upon
the word “ matter ” plaintiff in error puts its main reliance; indeed,
makes it dominant o f the meaning o f the release. The contention
is that it refers to the accident, not to the injuries, the latter serving
only to identify the accident which “ was the cause o f the action.”
This is an attempt to separate the inseparable. The negligence o f
plaintiff in error caused the accident which resulted in injuries to
defendant in error, and constituted his right or cause o f action, and
was the matter to which the release was addressed; but the extent
o f the release, whether [it is] confined to the injuries enumerated or
includes other injuries, depends upon the other words o f the release.
They are as follow s:
“ I hereby release and acquit, and by these presents bind myself
to indemnify and forever hold harmless, said Texas and Pacific
Railway Company, from and against all claims, demands, damages,

702

BULLETIN OF TH E BUREAU OF LABOR.

and liabilities of any and every kind or character whatsoever, for
or on account o f the injuries and damages sustained by me in the
manner or upon the occasion aforesaid, and arising or accruing or
hereafter arising or accruing any way therefrom.”
We may admit that there is some ambiguity in these words. The
release is “ o f all claims of every kind and character whatsoever,”
arising, not from all injuries and damages sustained, but from “ the
injuries and damages sustained.” That is, the specific or enumerated
injuries sustained a in the manner or upon the occasion aforesaid,”
and the results o f those injuries. The words “ in the manner and
upon the occasion ” are a mere tautological identification of the col
lision and cause o f the injuries. They add nothing else whatever to
the meaning o f the release. This construction gives purpose to the
enumeration o f the injuries and to all o f the provisions o f the release.
And the rule o f construction should not be overlooked that general
wrords in a release are to be limited and restrained to the particular
words in the recital.
In Union Pacific Railway Company v. Harris (158 U. S. 326, 39
L. ed. 1003, 15 Sup. Ct. Rep. 843) a written release was set up in bar
o f an action for damages against the railway company. Several de
fenses were made to the release, among others, “ that the minds o f the
parties never met on the principal subject embraced in the release,
namely, the damages for which the action was brought.” This de
fense was complicated in the instructions of the court with the de
fenses o f fraud and mental incompetency to understand the terms and
extent o f the release, and it is difficult to make satisfactory extracts
from the charge of the trial court. Enough, howTever, appears to
show that the court submitted to the jury the fact of mistake of in
juries received as bearing on the effect of the release, and this action
*was affirmed by this court.
It follows from these views that judgment should be and it is
affirmed.
I n t e r f e r e n c e w i t h E m p l o y m e n t — P r o c u r in g D is c h a r g e o f E m
ployee—

D am ages— C ontracts

E m ploy

N one

but

M embers

Berry v. Donovan, Supreme Judicial Court of Mas
sachusetts, .7.4 Northeastern Reporter, page 603.—This action was
L abor U n io n s —

brought by one Berry, a shoe worker, against Donovan, representa
tive o f the National Boot and Shoe Workers* Union, to recover dam
ages for the wrongful procurement of Berry’s discharge. The em
ploying firm, Goodrich & Co., had entered into a contract with the
Boot and Shoe Workers' Union, the second clause of which reads as
follow s:
“ In consideration o f the foregoing valuable privileges, the employer
agrees to hire, as shoe workers, only members of the Boot and Shoe
Workers’ Union in good standing, and further agrees not to retain
any shoe worker in his employment after receiving notice from the
union that such shoe worker is objectionable to the union, either on
account o f being in arrears for dues, or disobedience o f union rules
or laws, or from any other cause.”

DECISIONS OF COURTS AFFECTING LABOR.

703

Berry was working for Goodrich & Co. under a contract termina
ble at will, and had been so employed for about four years prior to
the making o f the above agreement with the union. A few days
after this agreement was made he was discharged at the instance
o f Donovan, and the evidence tended to show that it was solely on
the ground that he was not a member of the union and had failed
to join after repeated suggestions that he should do so. Damages
were awarded him in the supreme judicial court of Essex County,
which action was affirmed on appeal to the supreme judicial court of
the State.
The basis o f the appeal and the disposition made of the points of
law raised appear in the following quotations from the opinion of
the court as announced by Judge Knowlton:
A t the close o f the evidence the defendant [Donovan] asked for the
following instructions, which the judge declined to give:
“ (1) Upon all the evidence in the case the plaintiff is not entitled to
recover.
“ (2) Upon all the evidence in the case the defendant was acting as
the legal representative of the Boot and Shoe Workers’ Union, and
not in his personal capacity, and therefore the plaintiff can not
recover.
“ (3) The contract between the Boot and Shoe Workers’ Union and
Hazen B. Goodrich & Co. was a valid contract, and^the defendant, as
the legal representative o f the Boot and Shoe Workers’ Union, had a
right to call the attention of Hazen B. Goodrich & Co., or any mem
ber of the firm, to the fact that they were violating the terms of the
contract in keeping the plaintiff in their employment after the con
tract was signed, and insisting upon an observance o f the terms of the
contract, even if the defendant knew that the observance o f the terms
o f the contract would result in the discharge of the plaintiff from
their employment.
“ (4) The contract referred to was a legal contract, and a justifica
tion o f the acts o f the defendant, as shown by the evidence in this
case. * * *
u(6) The defendant can not be held responsible in this action unless
it appears that the defendant used threats, or some act o f intimida
tion, or some slanderous statements, or some unlawful coercion to or
against the employers of the plaintiff, to thereby cause the plaintiff’s
discharge; and upon all the evidence in the case there is no such evi
dence, and the plaintiff can not recover.”
The defendant excepted to the refusal, and to the portions of the
charge which were inconsistent with the instructions requested. The
jury returned a verdict of $1,500 for the plaintiff. These exceptions
present the only questions which were argued before us by the
defendant.
The primary right o f the plaintiff to have the benefit of his con
tract and to remain undisturbed in the performance o f it is uni
versally recognized. The right to dispose o f one’s labor as he will,
and to have the benefit of one’s lawful contracts, is incident to the
freedom o f the individual, which lies at the foundation of the gov
ernment in all countries that maintain the principles o f civil liberty.

704

BULLETIN OF TH E BUREAU OF LABOR.

Such a right can lawfully be interfered with only by one who is acting
in the exercise o f an equal or superior right which conies in conflict
with the other. An intentional interference with such a right with
out lawful justification is malicious in law, even if it is from good
motives and without express malice. (Walker v. Cronin, 107 Mass.
555-562; Plant v. Woods, 176 Mass. 492-498, 57 N. E. 1011, 51 L. R.
A. 339, 79 Am. St. Rep. 330 [see Bulletin No. 31, p. 1294]; Allen v.
Flood, 1898, A. C. 1-18; Mogul Steamship Company v, McGregor, 23
Q. B. D. 598-613 •; Read v. Friendly Society of Operative Stone
Masons, 1902, 2 K. B. 88-96; Giblan v. National Amalgamated
Union, 1903, 2 K. B. 600-617.) In the present case the judge sub
mitted to the jury, first, the question whether the defendant inter
fered with the plaintiff’s rights under his contract with Goodrich
& C o.; and, secondly, the question whether, if he did, the interference
was without justifiable cause. The jury were instructed that, unless
the defendant’s interference directly caused the termination of the
plaintiff’s employment, there could be no recovery. The substance o f
the defendant’s contention was that if he acted under the contract
between the Boot and Shoe Workers’ Union and the emplover in pro
curing the plaintiff’s discharge, his interference was lawful.
This contention brings us to an examination of the contract. That
part which relates to the persons to be employed contains, first, a pro
vision that the employer will hire only members o f the union. This
has no application to the plaintiff’s case, for it is an agreement only
for the future, and the plaintiff had been hired a long time before.
The next provision is that the employer will not retain in his employ
ment a worker, after receiving notice that he is objectionable to the
union, “ either on account o f being in arrears for dues, or disobe
dience o f union rules or laws, or from any other cause.” The first
two possible causes for objection could not be applied to persons in
the situation o f the plaintiff, who were not members o f the union or
amenable to its laws. As to such persons the only provision appli
cable was that the firm would not retain a worker who was objec
tionable to the union from any cause, however arbitrary the objection
or unreasonable the cause might be. This provision purported to
authorize the union to interfere and deprive any workman of his
employment for no reason whatever, in the arbitrary exercise of its
power. Whatever the contracting parties may do i f no one but
themselves is concerned, it is evident that, as against the workman, a
contract o f this kind does not of itself justify interference with his
employment by a third person who made the contract with his
employer. (Curran v. Galen, 152 N. Y. 33, 46 N. E. 297, 37 L. R. A.
802, 57 Am. St. Rep. 496.) [See Bulletin No. 11, p. 529.] No one can
legally interfere with the employment o f another unless in the exer
cise o f some right o f his own, which the law respects. His will so to
interfere for his own gratification is not such a right. The judge
rightly left to the jury the question whether, in view of all the cir
cumstances, the interference was or was not for a justifiable'cause.
I f the plaintiff’s habits or conduct or character had been such as to
render him an unfit associate in the shop for ordinary workmen of
good character, that would have been a sufficient reason for inter
ference in behalf of his shopmates. W e can conceive o f other good
reasons. But the evidence tended to show that the only reason for
procuring his discharge was his refusal to join the union. The ques

DECISIONS OP COURTS AFFECTING LABOR.

705

tion, therefore, is whether the jury might find that such an interfer
ence was unlawful.
The only argument that we have heard in support o f interference
by labor unions in cases o f this kind is that it is justifiable as a kind
o f competition. It is true that fair competition in business brings
persons into rivalry, and often justifies action for one’s self which
interferes with proper action of another. Such action on both sides
is the exercise by competing persons of equal conflicting rights. The
principle appealed to would justify a member of the union, who was
seeking employment for himself, in making an offer to serve on such
terms as would result, and as he knew would result, in the discharge
of the plaintiff by his employer, to make a place for the newcomer.
Such an offer, for such a purpose, would be unobjectionable. It
would be merely the exercise of a personal right, equal in importance
to the plaintiff’s right. But an interference by a combination of
persons to obtain the discharge o f a workman because he refuses to
comply with their wishes, for their advantage, in some matter in
which he has a right to act independently, is not competition. In
such a case the action taken by the combination is not in the regular
course o f their business as employees, either in the service in which
they are engaged or in an effort to obtain employment in other serv
ice. The result which they seek to obtain can not come directly from
anything that they do within the regular line o f their business as
workers competing in the labor market. It can only come from
action outside o f the province o f workingmen, intended directly to
injure another, for the purpose of compelling him to submit to their
dictation. It is difficult to see how the object to be gained can come
within the field o f fair competition. I f we consider it in reference to
the right o f employees to compete with one another, inducing a per
son to join a union has no tendency to aid them in such competition.
Indeed, the object o f organizations of this kind is not to make compe
tition o f employees with one another more easy or successful. It is
rather, by association, to prevent such competition, to bring all to
equality and to make them act together in a common interest.
Plainly, then, interference with one working under a contract, with
a view to compel him to join a union, can not be justified as a part of
the competition o f workmen with one another.
We understand that the attempted justification rests entirely upon
another kind o f so-called competition, namely, competition between
employers and the employed, in the attempt o f each class to obtain
as large a share as possible o f the income from their combined efforts
in the industrial field. In a strict sense this is hardly competition.
It is a struggle or contention o f interests o f different kinds, which are
in opposition, so far as the division o f profits is concerned. In a
broad sense, perhaps, the contending forces may be called competi
tors. A t all events, we may assume that, as between themselves,
the principle which warrants competition permits also reasonable
efforts, o f a proper kind, which have a direct tendency to benefit one
party in his business at the expense of the other. It is no legal objec
tion to action whose direct effect is helpful to one o f the parties in
the struggle that it is also directly detrimental to the other. But
when action is directed against the other primarily for the purpose
o f doing him harm, and thus compelling him to yield to the demand
50—No. 60—05

m ----- 21

706

BULLETIN OF THE BUREAU OF LABOR.

o f the actor, and this action does not directly affect the property or
business or status o f the actor, the case is dinerent, even if the actor
expects to derive a remote or indirect benefit from the act. The
gam which a labor union may expect to derive from inducing others
to join it is not an improvement to be obtained directly in the con
ditions under which the men are working, but only added strength
for such contests with employers as may arise in the future. An
object o f this kind is too remote to be considered a benefit in business,
such as to justify the infliction o f intentional injury upon a third
person for the purpose o f obtaining it. I f such an object were
treated as legitimate, and allowed to be pursued to its complete ac
complishment, every employee would be forced into membership in
a union, and the unions, by a combination o f those in different trades
and occupations, would have complete and absolute control o f all
the industries o f the country. Employers would be forced to yield
to all their demands or give up business. The attainment o f such
an object in the struggle with employers would not be competition,
but monopoly. A monopoly, controlling anything which the world
must have, is fatal to prosperity and progress. In matters o f this
kind the law does not tolerate monopolies. The attempt to force all
laborers to combine in unions is against the policy o f the law, because
it aims at monopoly. It therefore does not justify causing the dis
charge, by his employer, of an individual laborer working under a
contract. It is easy to see that for different reasons an act which
might be done in legitimate competition by one or two or three per
sons, each proceeding independently, might take on an entirely d if
ferent character, both in its nature and its purpose, if done by hun
dreds in combination.
W e have no desire to put obstacles in the way o f employees who
are seeking by combination to obtain better conditions for themselves
and their families. We have no doubt that laboring men have de
rived and may hereafter derive advantages from organization. We
only say that under correct rules o f law, and with a proper regard
for the rights o f individuals, labor unions can not be permitted to
drive men out o f employment because they choose to work independ
ently. I f disagreements between those who furnish the capital and
those who perform the labor employed in industrial enterprises are to
be settled only by industrial wars, it would give a great advantage
to combinations o f employees, if they could be permitted by force
to obtain a monopoly o f the labor market. But we are hopeful that
this kind o f warfare will soon give way* to industrial peace, and
that rational methods o f settling such controversies will be adopted
universally.
The fact that the plaintiff’s contract was terminable at will,
instead o f ending at a stated time, does not affect his right to
recover. It only affects the amount that he is to receive as damages.
(Moran v. Dunphy, 177 Mass. 485-487, 59 N. E. 125, 52 L. R. A. 115,
83 Am. St. Rep. 289 [see Bulletin No. 37, p. 1202] ; Perkins v. Pendle
ton, 90 Me. 166-176, 38 Atl. 96, 60 Am. St. Rep. 252 [see Bulletin No.
14, p. 115] ; Lucke v. Clothing Cutters’ Association, 77 Md. 396,26 Atl.
505, 19 L. R. A. 408, 39 Am. St. Rep. 421; London Guarantee Com
pany v . Horn, 101 111. App. 355; id., 206 111. 493, 69 N. E. 526, 99 Am.
St. Rep. 185 [see Bulletin No. 55, p. 1674].)

DECISION'S OF COURTS AFFECTING LABOR.

707

The conclusion which we have reached is well supported by author
ity. The principle invoked is precisely the same as that which lies at
the foundation o f the decision in Plant v. Woods (supra). In that
case, although the power that lies in combination and the methods
often adopted by labor unions in the exercise of it were stated with
great clearness and ability, the turning point o f the decision is found
m this statement:
“ The necessity that the plaintiff should join this association is not
so great, nor is its relation to the rights o f the defendants, as com
pared with the right of the plaintiffs to be free from molestation,
such as to bring the acts of the defendants under the shelter o f the
principles o f trade competition.”
Carew v, Rutherford, 106 Mass. 1, 8 Am. Eep. 287; Walker v.
Cronin, 107 Mass. 555, and the other cases cited in Plant v. Woods,
ubi supra, as well as the latter case o f Martell v. White, 185 Mass.
255, 69 N. E. 1085, 64 L. R. A. 260 [see Bulletin No. 53, p. 958], all
tend to support us in our decision.
We have long had a statute forbidding the coercion or compulsion
by any person o f any other “ person into a written or verbal agree
ment not to join or become a member of a labor organization as a
condition o f his securing employment or continuing m the employ
ment o f such person.” (Rev. Laws, ch. 106, sec. 12.) The same prin
ciple would justify a prohibition o f the coercion or compulsion o f a
person into a written or verbal agreement to join such an organiza
tion as a condition o f his securing employment, or continuing in the
employment o f another person.
The latest English cases, which explain and modify Allen v. Flood
(1898), A. C. 1, seem in harmony with our conclusion. (Giblan v.
National Amalgamated Union, 1903, 2 K. B. 600; Quinn v. Leatham,
1901, A. C. 495.) In the first of these it was held that a labor union
could not use its power to deprive one o f employment, in order to
compel him to pay a debt in which the union was interested. The case
o f Curran v. Galen (supra), in the decision o f which the judges o f the
court o f appeals were unanimous, fully covers the present case.
The principle involved in each o f the two cases is the same, and the
language o f the opinion in that case, in its application to this, is
decisive. From the decision of National Protective Association v.
Cumming, 170 N. Y. 315, 63 N. E. 369, 58 L. R. A. 135, 88 Am. St.
Rep. 648 [see Bulletin No. 42, p. 1118], three of the seven judges dis
sented, and the result is to leave the law o f New York in some
uncertainty. The majority distinguished that case from Curran v.
Galen, just referred to, and held that their decision was not incon
sistent with it. They seem to have treated the arrangement to exclude
persons not belonging to the union as entered into for legitimate
purposes, having reference to actual or probable conditions in the
employment; while the minority treated it as similar to the arrange
ment that appears in Curran v. Galen. (See, also, Jacobs v. Cohen,
Sup., 90 N. Y. Supp. 854; Mills et al. v. United States Printing
Company, Sup., Dec. 15,1904, 91 N. Y. Supp. 184.)
The law o f Illinois is in accord with our conclusion. In London
Guarantee Co. v. Horn (supra), it was held that a refusal of a work
man to accede to the request o f another in a matter affecting the
pecuniary interest o f the other would not justify the procurement of

708

BULLETIN OF THE BUREAU OF LABOR.

his discharge from the employment in which he was engaged under
a contract terminable at will. See, also, for kindred doctrines,
Doremus v. Hennessey, 176 111. 608, 52 N. E. 924, 54 N. E. 524, 43
L. R. A. 797, 802, 68 Ain. St. Rep. 203 [see Bulletin No. 22, p. 463];
Christensen v. The People, 114 111. App. 40 [see Bulletin No. 53, p.
961] ; Matthews v. The People, 202 111. 389, 67 N. E. 28, 63 L. R. A. 73,
95 Am. St. Rep. 241 [see Bulletin No. 50, p. 188] ; Erdman v. Mitchell,
207 Pa. 79, 56 Atl. 327, 63 L. R. A. 534, 99 Am. St. Rep. 783 [see
Bulletin No. 51, p. 450] ; Perkins v. Pendleton (supra). Other cases
bearing more or less directly upon the general subject are Lucke v.
Clothing Cutters’ Association, 77 Md. 396, 26 Atl. 505, 19 L. R. A.
408,39 Am. St. Rep. 421; Holder v. Cannon Manufacturing Company,
135 N. C. 392, 47 S. E. 481, 65 L. R. A. 161 [see Bulletin No. 56, p.
313] (but see also this case in 50 S. E. 681 [Bulletin No. 60, p. 709]) ;
Chipley v. Atkinson, 23 Fla. 206,1 South. 934, 11 Am. St. Rep. 367;
Blumenthal v. Shaw, 77 Fed. 954, 23 C. C. A. 590; Barr v. The
Essex Trades Council, 53 N. J. Eq. 101, 30 Atl. 881; Jersey City
Printing Company v. Cassidy, 63 N. J. Eq. 759, 53 Atl. 230 [see
Bulletin No. 45, p. 383]; Crump v. Com., 84 Va. 927, 4 S. E. 721, 10
Am. St. Rep. 839 ;• Old Dominion Steamship Company v. McKenna
(C. C .), 30 Fed. 48; Brown and Allen v. Jacobs Pharmacy Com
pany, 115 Ga. 429, 41 S. E. 553, 57 L. R. A. 547, 90 Am. St. Rep.
126; Bailey v. Master Plumbers’ Association, 103 Tenn. 99, 52 S. W.
853, 46 L. R. A. 561 [see Bulletin No. 26, p. 194] ; Pelz v. Winfree,
80 Tex. 400, 16 S. W. I l l , 26 Am. St. Rep. 755. It will be seen
that in the different courts there is considerable variety and some
conflict o f opinion.
W e hold that the defendant was not justified by the contract with
Goodrich & Co., or by his relations to the plaintiff, in interfering with
the plaintiff’s employment under his contract. How far the princi
ples which we adopt would apply, under different conceivable forms
o f contract, to an interference with a workman not engaged, but seek
ing employment, or to different methods o f boycotting, we have no
occasion in this case to decide.
The defendant contends that the judge erred in his instruction to
the jury in response to the defendant’s special request at the close of
the charge. The judge said, in substance, that if the defendant
caused the firm to discharge the plaintiff by giving the members to
understand that, unless they discharged him, they “ would be visited
with some punishment, under the contract or otherwise, then that
interference would not be justifiable.” This instruction, taken liter
ally and alone, would be erroneous. Some grounds o f interference
would be justifiable, while others would not. But considering the
instruction in connection with that which immediately preceded it,
and with other parts o f the charge, it is evident that the judge was
directing the attention of the jury to what would constitute an inter
ference, not to what would justify an interference. He had just told
them that, if all the defendant did was to call the attention o f the
firm to the provision of the contract, and the firm then, o f their own
motion, discharged the plaintiff, the defendant would not be liable.
He then pursued the subject with some elaboration, and ended as
stated above. Instead o f saying, “ then that interference would not
be justifiable,” he evidently meant to say, “ then that would be inter

DECISIONS OF COURTS AFFECTING LABOR.

709

ference which would create a liability, unless it was justifiable.”
Taking the charge as a whole, we think the jury were not misled by
the inaccuracy ot this statement.
Exceptions overruled.
I n t e r fe r e n c e w i t h E m p l o y m e n t — P r o cu rin g D isc h a r g e o f E m
M a l ic e —Holder v. Gannon Manufacturing Company, Su

plo y e e —

preme Court of North Carolina, 50 Southeastern Reporter, page
681.—This case was before the supreme court on a petition for a
rehearing, a judgment against the defendant company having pre
viously been affirmed by the supreme court. (See Bulletin No. 56, p.
313.) Holder, an employee o f the company above named, had pro
cured a judgment for alleged false and malicious charges brought
by the Cannon Company, which led to his discharge by the Gibson
Company, in whose employ he had been. The doctrine that malice
was sufficient ground of damages was followed in the first hearing
by the court with some dissent, but on rehearing it was held that
if no unlawful act was occasioned no right o f action accrued to the
discharged party.
The legal grounds for this conclusion are set forth in the following
extract from the remarks o f Judge Connor, who delivered the opinion
o f the court:
If, as testified by the plaintiff (H older), the Gibson mill had the
legal right to discharge him at night—that his contract was to work
by the day—it is not easy to see how he sustained any actionable
wrong by any conduct of the defendant. He could not have sued
the Gibson mill for discharging him at the end o f the day. How,
then, can he sue the defendant company for procuring the Gibson
mill to do something which it had the legal right to do? The case
comes clearly within the principle announced by this court in Rich
ardson v. R. R. (126-N. C. 100, 35 S. E. 235):
“ Persuading or inducing a man, without unlawful means, to do
something he has a right to do, though to the prejudice o f a third
person, gives that person no right o f action, whatever the persuader’s
motives may have been.” (Pollock on Torts (6th ed.), p. 317.)
In Haskins v. Royster (70 N. C. 601, 16 Am. Rep. 780), Rodman,
J., quoting the opinion in Walker v. Cronin (107 Mass. 555), says:
“ One who entices away a servant, or induces him to leave his mas
ter, may be held liable in damages therefor, provided there exists a
valid contract for continued service, known to the defendant.”
The plaintiff does not allege any special damage other than loss o f
wages. As he had no contract right with the Gibson mill, it is clear
that, conceding his allegation that defendant company procured his
discharge, it did him no actionable wrong, because there was no inter
ference with any legal right. He does not aver that he was pre
vented from renewing his contract o f service by any conduct o f the
defendant, and, if he had, it would seem that no right o f action
accrued therefor. “ A recent decision o f the court o f appeals that
procuring persons, not to break a contract, but not to renew expiring
contract or to make a fresh contract, may b§ actionable, i f done

710

BULLETIN OF THE BUREAU OF LABOR.

maliciously, without any allegation that intimidation or other unlaw
ful means were used, is now overruled.” (Pollock on Torts, 316;
Temperton v. Russell, 1 Q. B. 715, 62 L. J. Q. B. 412.)
Clark, J., in Richardson’s Case, supra, says:
“ Upon the plaintiff’s own showing, his discharge was within the
right o f the defendant, and not wrongful, and malice disconnected
with the infringement o f a legal right can not be the subject o f an
action.” (State v. Van Pelt, 136 N. C. 633, 49 S. E. 177.)
We are also o f the opinion that there is a total absence o f evidence
that any agent or servant o f the defendant company, acting as such,
and within the scope and sphere o f his duties, procured the discharge
o f the plaintiff. A corporation acts only by and through its agent,
and, before they can be held liable, the alleged wrongful act must
be traced to its agents while acting within the scope o f their employ
ment.
R ailro ad C o m p a n ie s — B r e a c h of C o n t r a c t fo r M ed ic a l A t t e n
E m pl o y e e s — M ea su re of D a m a g e s —Scanlon v. Galveston,
Harrisburg and San Antonio Railway Company, Court of Civil
Appeals of Texas, 86 Southwestern Reporter, page 930.—John Scan
t io n for

lon had sued in the district court of Bexar County to recover damages
from the railroad company above named, and from a judgment in
favor o f the company this appeal was taken. The judgment of the
lower court was reversed and the case remanded for a new trial. The
facts in the case, as well as the points o f law involved, are presented in
the following extracts from the opinion o f the court, delivered by
Judge James:
The petition alleged that plaintiff went into defendant’s employ
about January 6, 1901, as a machinist’s apprentice; that monthly the
defendant, with his consent, deducted from his wages the sum of 50
cents, and, in consideration thereof, was to furnish plaintiff with all
hospital services and benefits that he might need by reason of any
illness or injury that should be sustained by plaintiff while in the
employ o f defendant; that about January 29, 1902, while in defend
ant’s employ, he sustained serious injury by the bruising and mangling
o f his right hand, and fracturing the bones thereof; that he was sent
by defendant to the Santa Rosa Hospital, at San Antonio, to receive
said benefits, at defendant’s expense, and there remained until March
12, 1902, receiving such benefits, but on the last-named date defend
ant, acting through Doctor Graves, who was authorized by defendant
to have its sick and injured employees discharged from such hospital
treatment and services, refused to pay for plaintiff’s further treat
ment, etc., and ordered him discharged from the hospital, although
defendant knew at that time that plaintiff was not well, and that the
bones in his hand were still broken and fractured; that said bones
were still broken and fractured, and so remained for six months
thereafter, and plaintiff constantly required treatment, medicines,
nursing, maintenance, and hospital accommodations, which defendant
failed and refused to furnish him; that defendant owed him those
things, and, by reason o f its conduct and refusal in the premises,
plaintiff has suffered great mental and physical pain; that his right

DECISIONS OP COURTS AFFECTING LABOR.

711

hand has been permanently injured by the shrinkage or tightening
o f the muscles and tendons; that his capacity to earn a living in the
future has been decreased, and this occupation as a railway machinist
totally destroyed, and that he is further debarred thereby from pur
suing such w ork; and that he has been damaged thereby in the sum o f
$14,500. After the testimony was in, the court charged the jury to
find for the defendant.
Plaintiff has mistaken his case. The extent o f his allegations is
that defendant was under a contract obligation to render him the
benefits claimed, and that by withdrawing such benefits before he
was well o f his injury, and thus violating the contract, it became lia
ble for all the consequences thereof, in the same manner and to the
same extent as if he had sustained injury through a tortious act of
defendant. The measure o f damages in the two classes o f cases is
essentially different. Defendant, if it had in the first place refused
to supply the plaintiff any o f the benefits which the contract contem
plated, would simply have committed a breach o f the contract; and
this was all it did when, after giving him such benefits for a month,
it refused to proceed further in doing so. The measure o f damages
for such breach would be what it might have reasonably cost plaintiff
to obtain the same benefits. (Illinois Cent. Ry. Co. v. Gheen, Ky.,
66 S. W. 639, 68 S. W. 1087.) It follows that the judgment should
be reversed and the cause remanded.
The testimony o f plaintiff was sufficient to show that the monthly
deduction o f wages was made with the understanding that the em
ployee, when sick or injured, should be entitled to the hospital bene
fits at defendant’s expense. This would imply and mean, in the
absence o f an understanding to the contrary, the continuance o f the
benefits while the sickness or injury required same.
It was shown that defendant had rules regulating the matter of
admission and treatment of its sick or injured employees. One rule
was that “ treatment for sickness or injury will continue as long as
in the opinion o f the attendant or chief surgeon, it is necessary.”
Another was, “ Benefits will not be given for ailment due to * * *
injuries received in a fight or brawl,” etc. Defendant says that the
evidence undisputably shows that plaintiff was bound by these pro
visions, as a part o f the contract, and that it undisputably shows that
plaintiff received his injury in a fight, and also that he was dis
charged upon the judgment o f the surgeon in charge that his case
did not need further treatment. We are unable to agree with this
contention o f defendant,* because the rules bore date January 1, 1902,
and seem not to have originated until then, and plaintiff was injured
about January 29, 1902, and, according to his testimony, he had not
had notice o f their existence, or o f any change in the relations and
understanding from what seems to have previously existed. Had
he known o f the establishment o f such rules, and that his money was
being deducted in view o f same, then the contention would be sound.
As it is, defendant could not, by secret rules, or rules not communi
cated to its employees, change its relation to them.
Plaintiff in error, in his motion for rehearing, refers to our opinion
in the case o f Railway v. Rubio (65 S. W. 1126 [see Bulletin No. 40, p.
638]), as holding the contrary o f what is held in the present opinion.
In so far as that opinion differs from the one now delivered, we think
it incorrect.

LAWS OF VARIOUS STATES RELATING TO LABOR ENACTED
SINCE JANUARY 1, 1904.
[The Tenth Special Report of this Bureau contains all laws o f the various States and
Territories and o f the United States relating to labor in force January 1, 1904. Later
enactments are reproduced in successive issues o f the Bulletin from time to time as
published.]

IO W A .
ACTS OF 1904.
C h a p t e r 85.— B u r e a u o f la b o r s t a t is t ic s — F a c t o r y in s p e c t o r .
S ection 1. Section twenty-four hundred and seventy-seven (2477) o f the code
is hereby repealed and the following enacted in lieu th erof:
“ The commissioner o f the bureau o f labor statistics shall receive a salary of
fifteen hundred dollars per annum and shall be allowed a deputy at a salary of
twelve hundred dollars per annum payable monthly; he shall also be allowed
one factory inspector at a salary o f one hundred dollars per month, one office
clerk at a salary of sixty-five dollars per month. The appointment by the
commissioner o f such factory inspector shall be subject to the approval o f the
executive council. Said commissioner shall be allowed necessary postage, sta
tionery and office expenses; the said salaries and expenses shall be paid as the
salaries and expenses of other State officers are provided for. The commis
sioner or any officer or employee of the bureau o f labor statistics shall be
allowed, in addition to his salary, his actual and necessary traveling expenses
while in the performance o f his duties, said expenses to be audited by the
executive council and paid out o f the general fund o f the State upon a voucher
verified by the commissioner or his deputy; but the total o f the expense for the
officers and employees o f said bureau, other than the salaries o f the commis
sioner, his deputy, the factory inspector and clerk, shall not exceed fifteen hun
dred dollars per annum.”
Approved April 13, A. D. 1904.
C h a p t e r 124.— E x e m p t i o n o f w a g e s f r o m g a r n i s h m e n t .
S ectio n 1. Wages earned outside o f this State by a nonresident o f this State,
and payable outside o f this State, shall in all cases where the garnishing cred
itor is a nonresident o f this State, be exempt from attachment or garnishment
where the cause of action arises outside o f this State; and it shall be the duty
o f the garnishee in such cases to plead such exemption, unless the defendant
shall be personally served with original notice in this State.
Approved March 7, A. D. 1904.
C h a p t e r 136.— F i r e e s c a p e s o n f a c t o r ie s .
S ectio n 1. The owners, proprietors and lessees o f all buildings, structures or
enclosures o f three or more stories in height, now constructed or hereafter to be
erected, shall provide for and equip said buildings and structures witfi such
protection against fire and means o f escape from such buildings as shall here
after be set forth in this bill.
S ec . 2. The buildings, structures and enclosures contemplated in this act shall
be classified as follow s:
First. Hotels office buildings or lodging rooms of three or more stories in
height.
$
$
$
$
$
$
$
Fifth. Manufactories, warehouses and buildings of all character [s] o f three
or more stories in height, not specified in the foregoing sections.
S ec . 3. Each twenty-five hundred (2,500) superficial feet o f area, or fractional
part thereof, covered by buildings or structures specified under classification

712

LABOR LAWS---- IOWA---- ACTS OF 1904,

713

one, o f section 2, o f this act, shall be provided with one ladder fire escape of
steel or wrought iron construction, attached to the outer wall thereof, and
provided with platforms o f steel or wrought iron construction of such size and
dimensions and such proximity to one or more windows o f each story above the
first with all doors leading thereto o f half glass locked in such manner as to
render access to such ladder from each story easy and safe, and with red lights
to designate location of escapes said ladder to start about five feet from the
ground and extend above the roof, or a drop ladder may be hung at the second
story in such a manner that it can be easily lowered in case of necessity, pro
vided, however, that where such buildings shall be occupied by more than
twenty (20) persons, the said building shall as a substitute for one ladder be
provided with one stairway o f steel or wrought iron construction with above
described platforms, accessible from each story with a drop or counterbalance
stairway from the second story balcony to the ground, or a stationary stairway
may be carried down to within five feet from the ground. * * * Each five
thousand (5,000) superficial feet o f area, or fractional part thereof covered by
buildings under classification 6, [5] section 2 of this act, shall be provided with
at least one above described ladder, and platforms at each story, if not more
than twenty (20) persons be employed in the same. I f more than twenty (20)
persons be employed, then there shall be at least two o f the above described lad
ders, and platforms attached, or one such stairway, and platforms o f sufficient
size at each story, and if more than forty (40) persons be employed in said
building, then there shall be at least two, or such number o f the above described
outside stairways as the chief o f fire department, or the mayor o f any city or
town where no such chief of fire department exists, may from time to time
determine. * * *
Sec. 4. In buildings under all above classification [si signs indicating location
of fire escapes shall be posted at all entrances to elevators, stairway landings
and in all rooms.
Sec. 5. It is hereby made the duty o f commissioner o f the bureau o f labor sta
tistics, the chief o f fire department, or the mayor of each city or town where no
such chief o f fire department exists, or the chairman of the board o f supervisors,
in case such building is not within the corporate limits of any city or town, to
adopt uniform specifications for fire escapes hereinbefore provided, and keep
such specifications on file in their respective offices, and to serve or cause to be
served a written notice in behalf o f the State o f Iowa upon the owner or owners,
or their agents or lessees, o f buildings within this State not provided with fire
escapes in accordance with the provisions o f this act, commanding such owner,
owners, or agents or either of them, to place or cause to be placed upon said
buildings, such fire escape or fire escapes as are provided in this act within
sixty days after service o f such notice, pursuant to the specifications estab
lished. Any such owner, owners’ agents, trustees and lessees or either or any
o f them so served with notice as aforesaid, who shall not within sixty days after
the service o f said notice upon him or them, place or cause to be placed such fire
escape or fire escapes upon such buildings as required by this act and the terms
o f said notice, shall be subject to a fine not less than fifty ($50) dollars, and not
more than one hundred ($100) dollars, and shall be subject to a further fine of
twenty-five ($25) dollars for each additional week o f neglect to comply with
such notice.
Sec. 6. All fire escapes erected under the provisions of this act shall be sub
ject to inspection and approval or rejection in writing, by the person named in
section 4 of this act who has caused such written notice to be served.
Approved April 6, A. D. 1904.
RHODE ISLAND.
ACTS OF 1904.
C h a pteb 1142.— I n s p e c t i o n o f f a c t o r i e s — W a s h r o o m s , etc., i n f o u n d r i e s .
S ection 1. Every foundry in this State employing ten or more men shall pro
vide suitable toilet rooms, containing wash-bowls or sinks, provided with water,
water-closets, and a room wherein the men may change their clothes, said rooms
to be within the building used for said foundry, and shall be protected from the
weather, heated and ventilated.

714

BULLETIN OF THE BUREAU OF LABOR,

S ec . 2. Any person or corporation failing to comply with section 1 o f this act
shall be deemed guilty o f a misdemeanor, and upon conviction thereof shall be
fined not less than fifty nor more than one hundred dollars, one-half thereof to
the use o f the complainant, one-half thereof to the use o f the State.
S ec . 3. This act shall go into effect on and after September 1st, A. D. 1904.
Passed March 3, 1904.

SOUTH CAROLINA.
ACTS OF 1904.
A ct No. 236.— P r o t e c t i o n o f e m p l o y e e s o n s t r e e t r a ilw a y s — I n c l o s e d p l a t f o r m s .
S ection 1. Section 1 o f an act entitled “ An act to require electric street rail
way companies to affix vestibules to their cars for the protection o f motor men,”
approved the 26th day o f February, A. D. 1902 [shall] be amended by striking out
the proviso; so that the said section, as amended, shall read as follow s:
S ectio n 1. Electric street railway companies shall affix to their cars or coaches ‘
suitable vestibules for the protection o f the motormen during the months o f
December, January, February and March. Any corporation running and oper
ating electric street railway cars or coaches who fails to comply with the provi
sions of this act, within six months, shall be subject to a penalty o f ten dollars
per day, to be recovered by any citizen in the city or town where such corpora
tion does business, for the benefit o f the State.
Approved the 22d day o f February, A. D. 1904.
A ct N o . 242.— C o n t r a c t o f e m p l o y m e n t — V io la t io n a f t e r r e c e i v i n g s u p p lie s .
S ectio n 1. The Criminal Code (vol. 2, Code o f Laws, 1902), [shall] be
amended by adding after section 357 a section, to be known as section 357a, to
read as follow s:
S e c t io n 357a. A conviction o f either party mentioned in * * * section 357
o f the Criminal Code (vol. 2, Code of Laws, 1902), for violation o f such contract
as is mentioned in said sections, shall not operate as a release or discharge o f
such person from the performance o f any part of said contract which is to be per
formed subsequent to the date o f the breach for which such conviction was h a d :
P r o v i d e d , h o w e v e r , That such person shall not be criminally liable for the non
performance of any obligation due to be performed during the period o f time such
person may be undergoing imprisonment.
Approved the 25th day o f February, A. D. 1904.
A ct No. 243.— C o n t r a c t o f e m p l o y m e n t — V io l a t i o n a f t e r r e c e i v i n g s u p p lie s .
S ectio n 1. Section 357, Criminal Code, Code o f Laws, 1902, vol. 2, [shall] be
amended * * * so that said section, when amended, shall read as follow s:
Section 357. Any laborer working on shares o f crop, or for wages in money or
other valuable consideration, under a verbal or written contract to labor on farm
lands, who shall receive advances, either in money or supplies, and thereafter
willfully and without just cause fail to perform the reasonable service required
o f him by the terms o f the said contract, shall be liable to prosecution for a mis
demeanor: P r o v i d e d , That prosecution shall be commenced within thirty days
after the alleged violation, and on conviction, shall be punished by imprisonment
o f thirty days, or to be fined in the sum o f not less than fifty dollars nor more
than one hundred dollars, in the discretion o f the cou rt: P r o v i d e d , The verbal
contract herein referred to shall be witnessed by at least two disinterested wit
nesses : P r o v i d e d , That such contracts shall be valid only between the original
parties thereto, and any attempted transfer or assignment of any rights there
under shall be null and void.
Approved the 25th day o f February, A. D. 1904.
A ct N o. 254.— P a y m e n t o f w a g e s i n s c r i p .
S ectio n 1. Section 2720 o f the Civil Code, is hereby amended * * * so
that said section, when thus amended, shall read as follow s:
S ection 2720. Any officer or agent o f any corporation, or any person, firm or
company, engaged in the business of manufacturing or mining in this State, who

LABOR LAWS---- SOUTH CAROLINA---- ACTS OF 1904.

715

by themselves or agent shall issue or circulate in payment for wages o f labor
any order, check, memorandum, token or evidence o f indebtedness, payable in
whole or in part otherwise than in lawful money o f the United States without
being negotiable and payable at the option o f holder in goods, wares, mer
chandise. supplies or lawful money o f the United States, as required by section
2719, or shall fail to redeem the same when presented for payment within thirty
days from date o f delivery thereof, by the said company or its agents, at his or
their office or place o f business, in lawful money o f the United States, or who
shall compel or attempt to coerce any employee o f any such corporation, shall
forfeit to the employee or legal owner and holder o f such order, check, memo
randum, token or evidence o f indebtedness, fifty dollars, to be recovered in
any court o f competent jurisdiction: P r o v i d e d , That in establishments for manu
facturing lumber or brick such checks shall not be redeemable in cash except on
regular pay days.
Approved the 25th day of February, A. D. 1904.
VERMONT.
ACTS OF 1904.
Act No. 91.— R a il r o a d s — B r i d g e s , e t c .
Section 1. Section 3883 o f the Vermont Statutes is hereby amended so as to
read as follow s:
Section 3883. All single track railroad bridges in this State except the two
bridges over the track in the village o f Middlebury, shall, when built or rebuilt,
be hereafter so constructed as to leave a clear space of not less than fifteen feet
between the inner sides o f said bridges, and also a clear space of not less than
twenty-two feet from the lowest timbers, boards, or irons in the covering o f said
bridges, and the top of the rails under the sam e; and in all double track bridges
the clear space of inside width shall be not less than twenty-seven feet. All
over-head highway bridges, wires, ropes, or other obstructions shall be not less
than twenty-two feet above the top o f the rails under the same.
Approved December 10, 1904.
A ct No. 92.— S a f e t y a p p lia n c e s o n r a ilr o a d s — T e l l t a l e s .
1. Section 3884 of the Vermont Statutes is hereby amended so as to
read as follow s:
A person or corporation operating a railroad, or part of a railroad, in this
State, shall place at the approaches o f all its bridges, the highway bridges and all
other structures o f whatever kind or nature which cover or extend over its track
that do not leave a clear height of twenty-two feet from the top o f the rails
and lowest parts of said bridges or other structures directly over said rails,
such telltale warnings, o r other safety devices o f uniform pattern for warning
trainmen o f their approach thereto, as shall be commended by the board o f rail
road commissioners.
Approved December 10, 1904.
S e c t io n

Act No. 115.— I n t o x i c a t i n g li q u o r s — S a l e to e m p l o y e e s — E m p l o y m e n t o f w o m e n ,
etc.
Section 23. Licenses shall be subject to the following conditions and prohi
bitions.
That no liquor shall be sold or furnished to * * * a person whose * * *
employer has given notice in writing to the licensee.
*

That no female person, nor any person under the age o f twenty-one years,
shall be employed in the bar room in which a license is operated.
Sec. 92. A husband, wife, child, guardian, employer or other person who is
injured in person, property or means of support by an intoxicated person, or in
consequence of the intoxication of any person, shall have the right of action in
his or her own name, jointly or severally, against any person or persons who by
selling or furnishing intoxicating liquor have caused in whole or in part such
intoxication. * * *
Sec. 117. This act shall take effect March first, 1905.
Approved December 10,1904.

716

BULLETIN OF THE BUREAU OF LABOR.
A ct N o. 155.— E m p l o y m e n t o f c h i l d r e n — A g e lim it — S c h o o l a t t e n d a n c e .

Sectio n 1. No child under the age o f twelve years shall be employed, per
mitted or suffered to work in any mill, factory or workshop, or in carrying or
delivering messages for any corporation or company. No child under the age
o f fifteen years shall be employed, permitted or suffered to work in any mill,
factory or workshop, or in carrying or delivering messages for any corporation
or company during the school hours in any part o f the term during which the
public schools o f the town, city or incorporated school district in which the child
resides are in session, or after eight o’clock in the evening o f any day.
S ec . 2. Section seven hundred and twelve o f the Vermont Statutes is hereby
amended so as to read as follow s:
S ection 712. No child under sixteen years o f age shall be employed in any
mill, factory or workshop unless such child has attended public school twentyeight weeks during the current year, and deposited with the owner or superin
tendent o f such mill, factory or workshop a certificate o f such attendance at
school, signed by the teacher thereof, or unless such child has attended a private
or parochial school, for the same length of time and, deposited with such owner
or superintendent a certificate from the superintendent o f school or some mem
ber of the board of school directors of the town or city where he is so employed
showing such school attendance.
Sec. 3. Any person who shall employ or suffer to be employed in any mill,
factory or workshop of which he is the owner, or owner in part, or of which he
is the superintendent or manager, any child in violation of the provisions of this
act, and a parent or guardian who allows or consents to such employment, shall
be fined fifty dollars.
Sec. 4. County courts, municipal courts and justices of the peace shall have
concurrent jurisdiction of offenses under this act and truant officers and all
informing officers are authorized to make complaint for violation of this act.
Sec. 5. Sections seven hundred and thirteen and five thousand one hundred
and forty-six of Vermont Statutes, and all other acts or parts o f acts inconsist
ent herewith are hereby repealed.
Approved December 6, 1904.

V IR G IN IA .
ACTS OF 1904.
C h a p t e r 20.— R e v e n u e la w — L a b o r a g e n t s .
S ectio n 128. Any person who hires or contracts with laborers, male or female,
to be employed by persons other than himself, shall be deemed to be a labor
agent; and no person shall engage in such business without having first obtained
a license therefor. Every person who shall without a license conduct business
as a labor agent, shall pay a fine o f not less than one hundred dollars, nor more
than five hundred dollars.
S ec . 129. Every person who engages in the business o f a labor agent shall pay
twenty-five dollars for the purpose o f transacting said business, but before any
such license shall be issued, the applicant shall produce a certificate from the
corporation court of the city, or the circuit court o f the county in which such
labor agent proposes to have his office, or o f the county in which he proposes
to do business, that to the personal knowledge o f the judge of such court or
from the information o f credible witnesses under oath before such court, the
court is satisfied that the applicant is a person o f good character and honest
demeanor.
Approved February 19, 1904.
C h a p t er 43.— S u n d a y la b o r .
S ectio n 1. Section thirty-seven hundred and ninety-nine of the Code of
Virginia, [shall] be amended and reenacted so as to read as follow s:
S ec . 3799.— I f a person, on a Sabbath day, be found laboring at any trade
or calling, or employ his apprentices or servants in labor or other business, ex
cept in household or other work o f necessity or charity, he shall forfeit two
dollars for each offense. Every day any servant or apprentice is so employed
shall constitute a distinct offense. From any judgment heretofore or hereafter
rendered under this section, the right of appeal shall lie to the defendant

LABOR LAWS---- VIRGINIA---- ACTS OP 1904.

717

within ten days, to the corporation or hustings court of the city, or to the circuit
court o f the county wherein said judgment appealed from is rendered; and when
taken shall be proceeded in as appeals in misdemeanor cases.
Approved March 2, 1904.
C h apter

186.— E m p l o y e e s o n p u b l i c w o r k s — V a c c i n a t io n .

S e c t io n 1. Any person, firm, or corporation employing large bodies o f laborers
in the State o f Virginia constructing works o f public improvement shall, unless
said persons, firm, or corporation has its own physician for that purpose, be re
quired to have a regular inspection by the board of health of the counties in which
said laborers are employed at such times as said board o f health may determine.
And the said person, firm, or corporation shall pay to the physician designated
to make such inspection by the board o f health of said county the sum of ten
dollars for such inspection; in the discretion of the examining officer the laborers
shall be vaccinated at the expense of the said person, firm, or corporation; the
said obligation of ten dollars and cost o f vaccination to have the force and effect
of a fee bill o f an officer and be collected by the sheriff as any such fee bills may
be collected.
Approved March 14, 1904.

UNITED STATES.
ACTS OF THIRD SESSION, 58TH CONGRESS— 1904-1905.
C h apter

778.— S e c u r i t y o f w a g e s o f e m p l o y e e s o n p u b l i c w o r k s — C o n t r a c t o r s '
bonds.

The act entitled “An act for the protection o f persons furnishing materials
and labor for the construction o f public works,” approved August thirteenth,
eighteen hundred and ninety-four, is hereby amended so as to read as follow s:
“ Hereafter any person or persons entering into a formal contract with the
United States for the construction of any public building, or for the prosecution
and completion o f any public work, or for repairs upon any public building or
public work, shall be required, before commencing such work, to execute the^
usual penal bond, Tvith good and sufficient sureties, with the additional obliga
tion that such contractor or contractors shall promptly make payments to all
persons supplying him or them with labor and materials in the prosecution o f
the work provided for in such contract; and any person, company, or corpora
tion who has furnished labor or materials used in the construction or repair o f
any public building or public work, and payment for which has not been made,
shall have the right to intervene and be made a party to any action instituted
by the United States on the bond o f the contractor, and to have their rights and
claims adjudicated in such action and judgment rendered thereon, subject, how
ever, to the priority o f the claim and judgment o f the United States. I f the
full amount o f the liability o f the surety on said bond is insufficient to pay the
full amount o f said claims and demands, then, after paying the full amount due
the United States, the remainder shall be distributed pro rata among said inter
veners. I f no suit shall be brought by the United States within six months
from the completion and final settlement of said contract, then the person or
persons supplying the contractor with labor and materials shall, upon applica
tion therefor, and furnishing affidavit to the Department under the direction o f
which said work has been prosecuted that labor or materials for the prosecution
o f such work has been supplied by him or them, and payment for which has not
been made, be furnished with a certified copy o f said contract and bond, upon
which he or they shall have a right o f action, and shall be, and are hereby,
authorized to bring suit in the name o f the United States in the circuit court of
the United States in the district in which said contract was to be performed
and executed, irrespective of the amount in controversy in such suit, and
not elsewhere, for his or their use and benefit, against said contractor and
his sureties, and to prosecute the same to final judgment and execution:
P r o v i d e d , That where suit is instituted by any o f such creditors on the bond
o f the contractor it shall not be commenced until after the complete per
formance o f said contract and final settlement thereof, and shall be com
menced within one year after the performance and final settlement o f said
contract, and not later: A n d p r o v i d e d f u r t h e r , That where suit is so insti
tuted by a creditor or by creditors, only one action shall be brought, and

718

BULLETIN OF THE BUREAU OF LABOR.

any creditor may file his claim in such action and be made party thereto within
one year from the completion o f the work under said contract, and not later.
I f the recovery on the bond should be inadequate to pay the amounts found due
to all o f said creditors, judgment shall be given to each creditor pro rata o f the
amount o f the recovery. The surety on said bond may pay into court, for distri
bution among said claimants and creditors, the full amount o f the sureties’ lia
bility, to wit, the penalty named in the bond, less any amount which said surety
may have had to pay to the United States by reason o f the execution o f said
bond, and upon so doing the surety will be relieved from further liability:
P r o v i d e d f u r t h e r , That in all suits instituted under the provisions o f this act
such personal notice o f the pendency o f such suits, informing them o f their
right to intervene as the court may order, shall be given to all known creditors,
and in addition thereto notice o f publication in some newspaper of general circu
lation, published in the State or town where the contract is being performed,
for at least three successive weeks, the last publication to be at least three
months before the time limited therefor.”
Approved February 24, 1905.
C h a p t e r 1434.— P r o t e c t i o n o f e m p l o y e e s o n s t r e e t r a ilw a y s — I n c l o s e d p l a t f o r m s —
D i s t r i c t o f C o lu m b ia .

S ection 1. Every person or corporation operating street cars in the District of
Columbia shall provide each o f the same with a glass vestibule, surrounding, as
nearly as possible, the place where the motorman operating said car stands, so
that said motorman shall be protected from inclement weather.
S ec . 2. Every person or corporation who or which shall violate the provisions
o f this act shall be guilty o f a misdemeanor, and upon conviction shall be fined
not less than one hundred nor more than five hundred dollars for each and
every day any street car is operated not provided with the vestibule required
by this act: P r o v i d e d , h o w e v e r , That the requirements o f this act shall not
apply to cars operated from the first day o f April to the first day o f November
o f each and every year.
Sec. 3. This act shall take effect from and after the thirtieth day o f November,
anno Domini nineteen hundred and five.
Approved, March 3, 1905.
C h a p t e r 1454.— I n s p e c t i o n o f s t e a m v e s s e ls — n e g l i g e n c e o f e m p l o y e e s .
S ectio n 1. Section forty-four hundred and seventeen of the Revised Statutes
o f the United States [shall] be amended to read as follow s:
“ S ec . 4417. The local inspectors shall, once in every year, at least, carefully
inspect the hull of each steam vessel within their respective districts, and shall
satisfy themselves that every such vessel so submitted to their inspection is o f a
structure suitable for the service in which she is to be employed, has suitable
accommodations for passengers and the crew, and is in a condition to warrant
the belief that she may be used in navigation as a steamer, with safety to life,
and that all the requirements o f law in regard to fires, boats, pumps, hose, lifepreservers, floats, anchors, cables, and other things are faithfully complied w ith ;
and if they deem it expedient they may direct the vessel to be put in motion, and
may adopt any other suitable means to test her sufficiency and that o f her
equipment. * * *
S ec . 2. Section forty-four hundred and fifty-three o f the Revised Statutes o f
the United States is hereby amended to read as follow s:
“ S ec . 4453. In addition to the annual inspection, the local inspectors shall
examine, at proper times, steamers arriving and departing to and from their
respective ports, so often as to enable them to detect any neglect to comply with
the requirements o f law, and also any defects or imperfections becoming ap
parent after the inspection aforesaid, and tending to render the navigation o f the
vessels unsafe; and if they shall discover any omission to comply with the law,
or that repairs have become necessary to make the vessel safe, the inspectors
shall at once notify the master, in writing, stating in the notice what is
required; and if the master deems the requirements unreasonable or unneces
sary, he may apply for a reexamination o f the case to the supervising inspector,
as provided in the preceding section. All inspections and orders for repairs
shall be promptly made by the inspectors, and, when it can be safely done in
their judgment, they shall permit repairs to be made where those interested can

LABOR LAWS— UNITED STATES— AOTS OE 1904-1905.

7 19

most conveniently do them. And whenever any local inspector or supervising
inspector ascertains to his satisfaction that any vessel, subject to the provisions o f this title, has been or is being navigated or operated without comply
ing with the terms o f the vessel’s certificate o f inspection regarding the number
and class o f licensed officers and crew, or without complying with the provisions
o f law and her said certificate as to the number or kind o f life-saving or fire=
fighting apparatus, or without maintaining in good and efficient condition her
lifeboats, fire pumps, fire hose, and life-preservers, or that for any other reason
said vessel can not be operated with safety to life, the said local or supervising
inspector shall order the owner or master of said vessel to correct such unlaw
ful conditions, and may require that the vessel at once cease navigating and be
submitted to reinspection; and in case the said orders o f such inspector shall
not at once be complied with, the said inspector shall revoke the said vessel’s
certificate o f inspection and shall immediately give to the owner, master, or
agent o f said vessel notice, in writing, o f such revocation; and no new certifi
cate o f inspection shall be again issued to her until the provisions o f this title
have been complied with. Any vessel subject to the provisions o f this title
operating or navigating or attempting to operate or navigate after the revoca
tion o f her certificate of inspection and before the issuance o f a new certificate,
shall, upon application by the inspector to any district court o f the United
States having jurisdiction, and by proper order or action of said court in the
premises, be seized summarily by way o f libel and held without privilege o f
release by bail or bond until a proper certificate o f inspection shall have been
issued to said vessel: P r o v i d e d , That the master or owner o f any vessel whose
certificate shall have been so revoked may within thirty days after receiving
notice o f such revocation appeal to the Secretary of Commerce and Labor for a
reexamination o f the case, and upon such appeal the said Secretary shall have
the power to revise, modify, or set aside such action o f the local or supervising
inspector and direct the issuance to such vessel of her original certificate or o f a
new certificate of inspection; and in case the said Secretary shall so direct the
issuance of a certificate, all judicial process against said vessel based on this
section shall thereupon be o f no further force or effect, and the vessel shall
thereupon be released.”
S ec . 5. Section fifty-three hundred and forty-four o f the Revised Statutes of
the United States is hereby amended to read as follow s:
“ S ec . 5344. Every captain, engineer, pilot, or other person employed on any
steamboat or vessel, by whose misconduct, negligence, or inattention to his
duties on such vessel the life o f any person is destroyed, and every owner, char
terer, inspector, or other public officer, through whose fraud, neglect, connivance,
misconduct, or violation o f law, the life o f any person is destroyed, shall be
deemed guilty o f the felony of manslaughter, and upon conviction thereof, before
any circuit court of the United States, shall be sentenced to pay a fine o f not
more than ten thousand dollars, or to confinement at hard labor for a period o f
not more than ten years, or either, or both: P r o v i d e d , That when the owner or
charterer o f any steamboat or vessel shall be a corporation, any executive officer
of such corporation, for the time being actually charged with the control and
management o f the operation, equipment, or navigation o f such steamboat or
vessel, who has knowingly and willfully caused or allowed such fraud, neglect,
connivance, misconduct, or violation o f law, by which the life o f any person is
destroyed, shall be deemed guilty of the felony o f manslaughter, and upon con
viction thereof, before any circuit court of the United States, shall be sentenced
to confinement at hard labor for a period o f not more than ten years.”
S ec . 6. This act shall take effect and be in force on and after the first day o f
July, nineteen hundred and five.
Approved, March 3, 1905.
C h a pter 1456.— I n s p e c t i o n o f s t e a m v e s s e l s .
S ection 1.— Section forty-four hundred and eighteen o f the Revised Statutes
of the United States is hereby amended to read as follow s:
“ S ec . 4418. The local inspectors shall also inspect the boilers and their appur
tenances in all steam vessels before the same shall be used, and once at least in
every year thereafter, and shall subject all boilers to the hydrostatic pressure.
All such vessels shall comply with the following requirements, namely: That
the boilers are well made, o f good and suitable material; that the openings for
the passage o f water and steam, respectively, and all pipes and tubes exposed to

720

BULLETIN OF THE BUREAU OF LABOR.

heat, are o f proper dimensions and free from obstructions; that the spaces
between and around the flues are sufficient; that flues, boilers, furnaces, safety
valves, fusible plugs, low-water indicators, feed-water apparatus, gauge cocks,
steam gauges, water and steam pipes connecting boilers, means o f prevention o f
sparks and flames from fire doors, low-water gauges, means o f removing mud
and sediment from boilers, and all other such machinery and appurtenances
thereof, are o f such construction, shape, condition arrangement, and material
that the same may be safely employed in the service proposed without peril to
li f e ; and the local inspectors shall satisfy themselves by thorough examination
that said requirements o f law and regulations in regard thereto have been fully
complied with. All boilers used on steam vessels and constructed o f iron or steel
plates, inspected under the provisions o f section forty-four hundred and thirty,
shall be subjected to a hydrostatic test, in the ratio o f one hundred and fifty
pounds to the square inch to one hundred pounds to the square inch o f the
working steam power allowed. No boiler or flue pipe, nor any o f the connections
therewith, shall be approved, which is made, in whole or in part, o f bad mate
rial, or is unsafe in its form, or dangerous from defective workmanship, age, use,
or other cause.”
Approved, March 3, 1905.
C h a p t e r 1457.— I n s p e c t i o n o f s t e a m v e s s e l s .
S ection 4. Section forty-four hundred and twenty-six o f the Revised Statutes
o f the United States, as amended by act o f January eighteenth, eighteen hun
dred and ninety-seven, is hereby further amended to read as follow s:
“ S ec . 4426. The hull and boilers of every ferryboat, canal boat, yacht, or other
small craft o f like character propelled by steam, shall be inspected under the
provisions of this title. Such other provisions o f law for the better security of
life as may be applicable to such vessels shall, by the regulations of the board
o f supervising inspectors, also be required to be complied with before a. certifi
cate o f inspection shall be granted, and no such vessel shall be navigated
without a licensed engineer and a licensed pilot: P r o v i d e d , h o w e v e r , That in
open steam launches o f ten tons burden and under, one person, if duly qualified,
may serve in the double capacity of pilot and engineer. All vessels o f above
fifteen tons burden carrying freight or passengers for hire, propelled by gas,
fluid, naphtha, or electric motors, shall be, and are hereby, made subject to all
the provisions o f section forty-four hundred and twenty-six o f the Revised
Statutes of the United States relating to the inspection o f hulls and boilers and
requiring engineers and pilots, and for any violation of the provisions o f this
title applicable to such vessels, or o f rules or regulations lawfully established
thereunder, and to the extent to which such provisions o f law and regulations
are so applicable, the said vessels, their masters, officers, and owners shall be
subject to the provisions o f sections forty-four hundred and ninety-six, fortyfour hundred and ninety-seven, forty-four hundred and ninety-eight, forty-four
hundred and ninety-nine, and forty-five hundred, relating to the imposition and
enforcement of penalties and the enforcement o f law.”
Approved, March 3, 1905.

CUMULATIVE INDEX OF LABOR LAWS AND DECISIONS RELATING
THERETO.
[This index includes all labor laws enacted since January 1, 1904, and published in the
Bulletin. Laws enacted previously appear in the Tenth Special Report of the Commis
sioner of Labor. The decisions indexed under the various headings relate to the laws on
the same subjects without regard to their date of enactment and are indicated by the letter
“ D ” in parenthesis following the name of the State.]
Bulletin.
No.
Accidents in factories:
New Jersey...............................
Accidents m mines:
O h io..........................................
Arbitration of labor disputes:
Maryland..................................
Massachusetts..........................
Assignment of wages:
New Y o r k ................................
Bakeries, hours of labor of em
ployees in. (See Hoursof Labor.)
Barbers, examination, etc., of.
(See Examination, etc.)
Boycotting. (See Interference
with employment.)
Bribery, etc., of employees:
Massachusetts.........................
Bribery of representatives of
labor organizations:
New Y ork ................................
Bureau of labor:
Iow a________ ______________
New Jersey________________
United States.........................
Children and women, employ
ment of, in barrooms:
Vermont...................................
Children and women, hours of
labor of:
Massachusetts.........................
Children, employment of, age
limit for:
Illinois ( D ) ..............................
New Jersey....... ....................
O hio..........................................
Vermont...................................
Children, employment of, gen
eral provi«ions:
Massachusetts.........................
New Jersey........................ .
O h io..........................................
Vermont....................................
Children, hiring out, to support
parents in idleness:
Mississippi............... ........ ........
Children, hours of labor o f:
New Jersey............ ...............
Chinese, exclusion, etc., of:
United States..........................
Citizens preferred for employ
ment on public works:
Massachusetts.........................
Combinations to fix wages:
Louisiana........................ ..........
Conspiracy. (See Interference;
Intimidation.)
Contracts of employees with in
tent to defraud:
South Carolina........................

1015

379
707,708
708-710

712

710

718

60
58
57

712
1018,1019
719

715

711

59
58
59
60

335-337
1012
381
716

57
58
59
60

711
1012,1013
381,382
716

712

1013

719,720

708

704

714

50—No. 60—05 M----- 22

No. 1 Page.

Page.

57
57

Bulletin.

Contractors’ bonds. (See Pro
tection of wages.)
Death. (See Injuries causing.)
Eight-hour day:
Nevada (D )...............................
New York (D ).........................
Porto Rico................................
Washington (D )......................
Emigrant agents:
Georgia.....................................
North Carolina ( D ) ...............
Employees, bribery, etc., of:
Massachusetts.........................
Employers’ advances, repay
ment of:
South Carolina......................
Employers’ liability. (See Lia
bility, etc.)
Employment offices:
California (D )............... _........
New Y o rk _________ ________
O h io______________ ____ ____
Virginia .................... ..............
See , also , Emigrant agents.
Examination, etc., of barbers:
Maryland.... .............................
Maryland (D) *.......................
Oregon (D ).............. ...............
Washington (D )......................
Examination, etc., of horseshoers:
Washington (D )......................
Examination, etc., of steam en
gineers:
Ohio..........................................
Exemption of wages from exe
cution, etc.:
Iow a..........................................
Louisiana..................................
Porto Rico................................
Factories, etc., inspection of.
(See Inspection.)
Fellow-servants. (See Liability
of employers.)
Fire escapes on factories:
Iow a...................... - .................
New Jersey...............................
Horseshoers, examination, etc.,
of. (See Examination, etc.)
Hours of labor of children and
women. (See Children, etc.)
Hours of labor of employees in
bakeries:
New York (D)______________
Hours of labor of employees in
mines, smelters, etc.:
Nevada (D )..............................

59
57
59
57

334,335
687,688
385
685-687

59
57

378
688

710

714

57
57
59 \f
60

693-896
713-715
379.380,
382,383
716

57
59
57
58

705-707
338-3-10
696-698
992-994

994,995

378,379

CO
57
59

712
704
385

60
58

712,713
1016-1018

698-700
340-3,55

334,335

721

722

BULLETIN OF THE BUREAU OF LABOR,

C u m u la t iv e i n d e x o f la b o r la ic s a n d d e c is io n s r e l a t i n g t h e r e t o — Concluded.
Bulletin.
No.
Hours of labor of employees on
railroads:
Arizona ( D ) .............................
Hours of labor on public works:
Porto Rico................................
Immigration, regulation, etc., of:
United States...........................
Injuries causing death, right; of
action for:
Alabama ( D ) ...........................
Inspection of factories:
Maryland ( D ) .........................
Massachusetts..........................
New Jersey.............................
New Y o r k ................................
Rhode Island...........................
Washington (D )......................
Inspection of steam vessels:
United States.........................
Inspectors, factory:
Iow a..........................................
New J ersey.............................
O hio..........................................
Insurance, cooperative:
Maryland ( D ) .........................
Interference with employment:
Wisconsin (D ).........................
Intimidation:
Connecticut (D )......................
Intoxicating liquor. (See Liq
uor.)
Labor, bureau of. (See Bureau
of Labor.)
Labor Day:
Mississippi................................
Labor organizations, bribery of
representatives of:
New Y o r k .............................. .
Labor organizations, incorpora
tion, regulation, etc., of:
Ma ssachusetts........................ .
Liability of employers for in
juries to employees:
Arizona ( D ) ...........
Indiana (D ).
Ohio .
Ohio (D )....................................
Texas (D )..................................
Virginia (D ).............................
Washington (D )......................
Wisconsin (D ).........................
License tax, exemption of me
chanics, etc., from:
Louisiana..................................
Liquor, sale of, to employees:
Vermont....................................
Lodging houses, sailors’:
United States...........................
Mechanics, exemption of, from
manufacturers’ taxes:
Philippine islands...................
Mine regulations:
Ohio............................................
Payment of wages due dis
charged employees:
Arkansas (D )...........................
Payment of wages in scrip:
Missouri (D ).............................
South Carolina........................
Payment of wages, modes and
times of:
Maryland................................ .
New Jersey..............................
Peonage:
United States ( D )................. .

Page.

694,695
385

720
995-998
999-1002
711
1013-1019
r 712,713,
L 715-718
713,714
990-992
718-720
712
1018,1019
383,384

678-680
681-684

712
718
710

384

297-299
690-693
985,986
990-992
986-988
57

703
715

719

379
699,700
309-311
714,715
704,705
1019

Bulletin.
No.
Protection of employees as
members of labor organiza
tions:
Kansas ( D ) ............................... 56
Protection of employees on
street railways:
District of Columbia..............
Louisiana
.........................
South Carolina........................
Protection of wages:
Massachusetts.........................
United States...........................
Public works, preference of res
ident laborers on:
Massachusetts.........................
Public works, use of domestic
materials for:
Missouri (D ).............................
Public works, vaccination of em
ployees on:
Virginia...................................
Railroad bridges, etc.:
Vermont...................................
Railroads, illiterate employees
on:
Ohio............................................
Railroads, safety appliances on:
Ohio...........................................
Vermont.................................. .
United States (D)...................
Railroads, structures near tracks
of:
Ohio............................................
Scrip. (See Payment of wages.)
Seamen:
United States...........................
Seats for female employees:
Maryland..................................
Statistics, collection of:
Hawaii............................ ..........
Steam engineers, examination,
etc., of. (See Examination,
etc.)
Stone worked within State, use
of, on public works. (See
Public works, use of domestic
materials for.)
Sunday labor:
Massachusetts.........................
V irginia...................................
Sweating system:
Maryland ( D ) .........................
New Jersey..............................
New Y o r k ................................
Time for meals to be allowed em
ployees: *
. Louisiana..................................
Time to vote to be allowed em
ployees:
Massachusetts.........................
Ohio............................................
Trade-marks of trade unions:
New Y ork ................................
Vaccination of employees on
public works:
Virginia...................................
Wages, assignment of. (See As
signment.)
Wages, combinations to fix:
Louisiana..................................
Wages, exemption of (See Ex
emption, etc.)
Wages, payment of. (See Pay
ment, etc.)
Women and children. (See Chil
dren and women.)

Page.

311
718
703,704
714
711
717,718
7C8
697-699
717
715
379
384
715
299-339
359-361
380,381
719
707
703

711
716,717
999-1002
1015,1016
715-718
704
710
380
715
717

704

LEADING ARTICLES IN PAST NUMBERS OF THE BULLETIN
No. 1. Private and public debt in the United States, by George K. Holmes.
Employer and employee under the common law, by V. H. Olmsted and
S. D. Fessenden.
No. 2. The poor colonies of Holland, by J. Howard Gore, Ph. D.
The industrial revolution in Japan, by William Eleroy Curtis.
Notes concerning the money of the U. S. and other countries, by W. C. Hunt.
The wealth and receipts and expenses of the U. S., by W. M. Steuart.
No. 3. Industrial communities: Coal Mining Co. of Anzin, by W. F. Willoughby.
No. 4. Industrial communities: Coal Mining Co. of Blanzy, by W. F. Willoughby.
The sweating system, by Henry White.
No. 5. Convict labor.
Industrial communities: Krupp Iron and Steel Works, by W. F. Willoughby.
No. 6. Industrial communities: Familist£re Society of Guise, by W. F. Willoughby.
*
Cooperative distribution, by Edward W. Bemis, Ph. D.
No. 7. Industrial communities: Various communities, by W. F. Willoughby.
Rates of wages paid under public and private contract, by Ethelbert Stewart.
No. 8. Conciliation and arbitration in the boot and shoe industry, by T. A. Carroll.
Railway relief departments, by Emory R. Johnson, Ph. I).
No. 9. The padrone system and padrone banks, by John Koren.
The Dutch Society for General Welfare, by J. Howard Gore, Ph. D.
No. 10. Condition of the Negro in various cities.
Building and loan associations.
No. 11. Workers at gainful occupations at censuses of 1870,1880, and 1890, by W. C.
Hunt.
Public baths in Europe, by Edward Mussey Hartwell, Ph. D., M. D.
No. 12. The inspection of factories and workshops in the U. S., by W. F. Willoughby.
Mutual rights and duties of parents and children, guardianship, etc., under
the law, by F. J. Stimson.
The municipal or cooperative, restaurant of Grenoble, France, by C. O. Ward.
No. 13. The anthracite mine laborers, by G. 0. Virtue, Ph. D.
No. 14. The Negroes of Farmville, Va.: A social study, by W. E. B. Du Bois, Ph. D.
Incomes, wages, and rents in Montreal, by Herbert Brown Ames, B. A.
No. 15. Boarding homes and clubs for working women, by Mary S. Fergusson.
The trade-union label, by John Graham Brooks.
No. 16. Alaskan gold fields and opportunities for capital and labor, by S. C. Dunham.
No. 17. Brotherhood relief and insurance of railway employees, by E. R. Johnson,
Ph. D.
The nations of Antwerp, by J. Howard Gore, Ph. D.
No. 18. Wages in the United States and Europe, 1870 to 1898.
No. 19. Alaskan gold fields and opportunities for capital and labor, by S. C. Dunham.
Mutual relief and benefit associations in the printing trade, by W. S. Waudby.
No. 20. Condition of railway labor in Europe, by Walter E. Weyl, Ph. D.
No. 21. Pawnbroking in Europe and the United States, by W. R. Patterson, Ph. D.
No. 22. Benefit features of American trade unions, by Edward W. Bemis, Ph. D.
The Negro in the black belt: Some social sketches, by W. E. B. Du Bois, Ph. D.
Wages in Lyon, France, 1870 to 1896.
No. 23. Attitude of women’s clubs, etc., toward social economics, by Ellen M. Ilenrotin.
The production of paper and pulp in the U. S. from January 1 to June 30,1898.
No. 24. Statistics of cities.
No. 25. Foreign labor laws: Great Britain and France, by W. F. Willoughby.
No. 26. Protection of workmen in their employment, by Stephen D. Fessenden.
Foreign labor laws: Belgium and Switzerland, by W. F. Willoughby.
No. 27. Wholesale prices: 1890 to 1899, by Roland P. Falkner, Ph. D.
Foreign labor laws: Germany, by W. F. Willoughby.
No. 28. Voluntary conciliation and arbitration in Great Britain, by J. B. McPherson.
System of adjusting wages, etc., in certain rolling mills, by J. H. Nutt.
Foreign labor laws: Austria, by W. F. Willoughby.
No. 29. Trusts and industrial combinations, by J. W. Jenks, Ph. D.
The Yukon and Nome gold regions, by S. C. Dunham.
Labor Day, by Miss M. C. de Graffenried.
No. 30. Trend of wages from 1891 to 1900.
Statistics of cities.
Foreign labor laws: Various European countries, by W. F. Willoughby.
No. 31. Betterment of industrial conditions, by V. H. Olmsted.
Present status of employers’ liability in the U. S., by S. D. Fessenden.
Condition of railway labor in Italy, by Dr. Luigi Einaudi.

No. 32. Accidents to labor as regulated by law in the U. S., by W. F. Willoughby.
Prices of commodities and rates of wages in Manila.
The Negroes of Sandy Spring, M d.: A social study, by W. T. Thom, Ph. D.
The British workmen’ s compensation act and its operation, by A. M. Low.
No. 33. Foreign labor laws: Australasia and Canada, by W. F. Willoughby.
The British conspiracy and protection of property act and its operation, by
A. M. Low.
No. 34. Labor conditions in Porto Rico, by Azel Ames, M. D.
Social economics at the Paris Exposition, by Prof. N. P. Gilman.
The workmen’s compensation act of Holland.
No. 35. Cooperative communities in the United States, by Rev. Alexander Kent.
The Negro landholder of Georgia, by W. E. B. Du Bois, Ph. D.
No. 36. Statistics of cities.
Statistics of Honolulu, H. I.
No. 37. Railway employees in the United States, by Samuel McCune Lindsay, Ph. D.
The Negroes of Litwalton, V a.: A social study of the “ Oyster Negro,” by
William Taylor Thom, Ph. D.
No. 38. Labor conditions in Mexico, by Walter E. Weyl, Ph. D.
The Negroes of Cinelare Central Factory and Calumet Plantation, La., by
J. Bradford Laws.
No. 39. Course of wholesale prices, 1890 to 1901.
No. 40. Present condition of the hand-working and domestic industries of Germany,
by Henry J. Harris, Ph. D.
Workmen’ s compensation acts of foreign countries,' by Adna F. Weber.
No. 41. Labor conditions in Cuba, by Victor S. Clark, Ph. D.
Beef prices, by Fred C. Croxton.
No. 42. Statistics of cities.
Labor conditions in Cuba.
No. 43. Report to the President on anthracite coal strike, by Carroll D. Wright.
No. 44. Factory sanitation and labor protection, by C. F. W. Doehring, Ph. D.
No. 45. Course of wholesale prices, 1890 to 1902.
No. 46. Report of Anthracite Coal Strike Cohimission.
No. 47. Report of the Commissioner of Labor on Hawaii.
No. 48. Farm colonies of the Salvation Army, by Commander Booth Tucker.
The Negroes of Xenia, Ohio, by Richard R. Wright, jr., B. D.
No. 49. Cost of living.
Labor conditions in New Zealand, by Victor S. Clark, Ph. D.
No. 50. Labor unions and British industry, by A. Maurice Low.
Land values and ownership in Philadelphia, by A. F. Davies.
No. 51. Course of wholesale prices, 1890 to 1903.
The union movement among coal-mine workers, by Frank J. Warne, Ph. D.
No. 52. Child labor in the United States, by Hannah R. Sewall, Ph. D.
No. 53. Wages and cost of living.
No. 54. The working of the United States Bureau of Labor, by Carroll D. Wright.
Bureaus of statistics of labor in the United States, by G. W. W. Hanger.
Bureaus of statistics of labor in foreign countries, by G. W. W. Planger.
The value and influence of labor statistics, by Carroll D. Wright.
Strikes and lockouts in the United States, 1881 to 1900, by G. W. W. Hanger.
Wages in the United States and Europe, 1890 to 1903, by G. W. W. Hanger.
Cost of living and retail prices in theU. S., 1890 to 1903, by G. W. W. Hanger.
Wholesale prices in the United States, 1890 to 1903, by G. W. W. Hanger.
Housing of the working people in theU. S. by employers, by G. W. W. Hanger.
Public baths in the United States, by G. W. W. Hanger.
Trade and technical education in the United States.
Hand and machine labor in the United States.
Labor legislation in the United States, by G. A. Weber.
Labor conditions in Hawaii.
No. 55. Building and loan associations in the U. S., by G. W. W. Hanger.
Revival of handicrafts in America, by Max West, Ph. D.
No. 56. Influence of trade unions on immigrants, by Carroll D. Wright.
Labor conditions in Australia, by Victor S. Clark, Ph. D.
No. 57. Course of wholesale prices, 1890 to 1904.
Street railway employment in the United States, by Walter E. Weyl, Ph. D.
No. 58. Labor conditions in the Philippines, by Victor S. Clark, Ph. D.
Labor conditions in Java, by Victor S. Clark, Ph. D.
The new Russian workingmen’s compensation act, by I. M. Rubinow.
No. 59. Wages and hours of labor in manufacturing industries, 1890 to 1904.
Retail prices of food, 1890 to 1904.

Full text of Bulletin of the United States Bureau of Labor, Nos. 1 - 100 : September 1905 : Bulletin of the United States Bureau of Labor, No. 60, Volume XI

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