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U. S. DEPARTMENT OF LABOR
JAMES J. DAVIS, Secretary

BUREAU OF LABOR STATISTICS
ETHELBERT STEWART, Commissioner

BULLETIN OF THE UNITED STATES )
BUREAU OF LABOR STATISTICS f ..................
CONCILIATION

AND

No. 303

ARBITRATION

SERIES

USE OF FEDERAL POWER IN
SETTLEMENT OF RAILWAY
LABOR DISPUTES

CLYDE OLIN FISHER, A. M., Ph. D.
Associate Professor of Economics, Wesleyan University

MARCH, 1922

WASHINGTON
GOVERNMENT PRINTING OFFICE
1922

CONTENTS.
Page.
Introduction________________________________________________________ 5; 6
Chapter I.—Early period: Law of 1888_______________________________ 7-14
Attitude of labor and railway interests----------------------------------------- 7,8
Preliminary congressional consideration and views on proposals----- 8-12
The law of 1888________________________________________________ 13,14
Provisions-----------------.--------------------------------------------------------- 13
Significance________________________________________________ 13,14
Chapter II.—The Pullman strike of 1894---------------------15-19
The strike, and action by Federaloflicials-----------------------------------------15-17
Attitude of the people---------------------------------------------------------76
Views of Members of Congress______________________ ________ 16,17
Decision of Federal Supreme Court--------------------------------------------- 17,18
In re Debs__________________________________________________ 17,18
Labor’s views of decision____________________________________ 18
President Cleveland’s statement on the decision----------------------18
The Strike Commission-------- _----------------------- ----------------------------18,19
Personnel__________________________________________________ 18,19
Findings and recommendations_____________________________
19
Chapter III.—Second stage of Federal intervention: The Erdman Act----- 20-37
Early consideration and attitude of the people------------------------------ 20-22
Congressional preliminaries to Erdman Act----------22-24
Passage of the Erdman Act-----------------------------------------------------------24-30
Opinions concerning the law_________________________________ 24,25
Provisions of the law________________________________________ 25-27
The law in the courts_________________________________________ 27-30
Cases decided____________________________________________ 27-29
Labor’s views on decisions_______________________________ 29,30
Application of the Erdman Act-----------------------------------------------------30-35
Railway labor organizations_________________________________ 30
Settlements under the law___________________________________ 31,32
Procedure under the law___________________________
32-35
Defects of the law_____________________________________
35
Concerted movements____________________________________________ 35-37
Chapter IV.—Third stage: The Newlands Act--------------------------------- 38-56
Development of legislative consideration and views held after pas-#
sage of law___________________________________________________ * 38-47
Passage of Newlands Act_________________________________________ 47-49
In Congress_________________________________________________ 47,48
Provisions of the law-------------------------- --------------------------------48,49
Expressions of opinion evoked by passage------------------------------ 49
Personnel of the board of mediation and conciliation__________
49
Operation of Newlands Act_______________________________________ 49-56
Chapter V.—Fourth stage: The Adamson law------------------------------------ 57-68
Preliminaries to new legislation_____________________________ ____57, 58
New situation to be met_______
59-66
Issues between the parties___________________________________ 59, 60
Message of President Wilson_________________________________ 60
Passage of the law___________________________________________ 60-62
Public opinion on the law__________________________ _________ 62,63
Responsibility for passage of the law_________________________
63
Why the brotherhoods refused arbitration--------------------------------64,65
Views of unorganized railway employees______________________
65
Brotherhoods and the rights of the public___________ ________ 65,66
Settlement through the Council of National Defense_______________
66
Adamson law in the courts_______________________________________ 66-68
Wilson v . N ew ______________________________________________ 67
Attitude of interests affected___________
68
3

CONTENTS.
P age.

Chapter VI.—Period of war administration of railroads__________________69-75
Wage determination_________________________________________________ 69-72
Relations with organized labor_______________________________________ 72-74
Railway adjustment boards_____________________________________ 73, 74
The division of labor________________________________________________74, 75
Chapter VII.—Transportation act of 1920: Esch-Cummins law__________76-97
Congressional consideration from passage of Adamson law to enact
ment of law of 1920________________________________________________76-78
Passage of Esch-Cummins law_______________________________________ 78-86
78-80
The House bill__________________________________________
The Senate bill__________________________________________________ 80-82
United States Commissioner of Mediation and Conciliation on
compulsory arbitration__________ ________________________ !___ 82, 83
The conference bill:___________________
83-85
Act of 1920 and the Newlands law_____________________________ 85, 86
Operation of Esch-Cummins law__________ 1________________________ 86-96
Esch-Cummins law versus earlier law s for adjustment of railway
labor disputes_____________________________________
96,97
Appendix A.—Constitutional issues involved in legislation to settle rail
way labor troubles___________________________________________________98-102
Appendix B.—Text of acts regulating railway labor disputes_________ 103-117
Act of October 1, 1888______________________________________________103-105
Act of June 1, 1898 (Erdman A ct)-------------------------------------------------- 105,106
Act of July 15, 1913 (Newlands A ct)-----------------------------------------------108-112
Act of September 3, 5, 1916 (Adamson la w )______________________ 112,113
Transportation act, 1920 (Esch-Cummins la w )____________________ 113-117
Bibliography----------------------------------------------------------------------------------------- 118-121

BULLETIN OF THE
U. S. BUREAU OF LABOR STATISTICS.
no.

303

WASHINGTON

m arch,

1922

USE OF FEDERAL POWER IN SETTLEMENT
OF RAILWAY LABOR DISPUTES.
INTRODUCTION.

The transportation act of 1920 has directed attention again to a
serious problem in connection with the railroads of the country, the
problem of the settlement of railway labor disputes. The observer
of contemporary events during the last three decades has seen a de
cided change in the attitude of the public toward the organization
and the operation of what are called “ public utilities.” In no field
has this development been more significant than in that of the rail
roads, and especially in the settlement of labor disputes thereon. A
condition of affairs that was largely academic BO years ago has now
become one of the most momentous of questions. The general public
perhaps realized this difficulty more keenly than ever before in the
summer of 1916, when the railroad brotherhoods and the railroads
reached such a point in their controversy as to cause grave concern on
the part of the public at large—the controversy culminating in the
passage of the so-called Adamson law.
Instead of a typically laissez faire point of view with reference to
this matter, a decided change of opinion has developed. An interest
ing illustration of the present opinion is to be found in the award of
the arbitration board that settled the controversy between the en
gineers and the railroads in the eastern section of the United States
in 1912. The report contained this, then radical, statement:
A strike in the Army or Navy is mutiny and universally punished as such.
The same principle is applied to seamen because of the public necessity involved.
A strike among postal clerks, as among the teachers of our public schools, would
be unthinkable. In all these cases the employment, to borrow a legal phrase, is
affected with a public use, and thus of necessity qualifies the right of free con
certed action which exists in private employment.1

This study will consist of an examination of the general methods,
so far as the Federal Government is concerned, that have been adopted
for the settlement of railway labor disputes. The experience of the
past will be examined in some detail. Briefly stated, that experience
has found legislative expression in five statutes. The first of these

1 R e p o r t o f th e B o a r d o f A r b itr a tio n in th e M a tte r o f C o n tr o v e r sy B e tw e e n th e
E a s te r n R a ilr o a d s a n d th e B r o th e r h o o d o f L o c o m o tiv e E n g in e e r s , p. 1 0 8 .

USE QF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

was enacted October 1,1888.2 A more important law, from the point
of view of its actual operation, was the so-called Erdman Act, passed
June 1, 1898.3 Then, in 1913, what was in reality an amendment to
and an enlargement of the Erdman law was passed, the law com
monly known as the Newlands law.4 In 1916, as a result of the largest
concerted movement in the history of the railway brotherhoods, came
the Adamson law.5 Finally, in 1920, Congress enacted the trans
portation act of 1920, the Esch-Cummins law, a law changing radi
cally the machinery for the adjustment of railway labor contro
versies.6 This last law was built largely upon the experience of the
Government during the war administration of the railroads.
This study will treat in some detail the events leading up to the
passage of these respective laws, the operation of the laws, and the
attitude of the various interests affected thereby. A brief chapter
will also be devoted to >the period of the war administration of the
railroads—the period ending with th§ enactment of the transporta
tion act of 1920.
It should be borne in mind that the situation dealt with is not
one affecting labor in general, but only a special kind of labor in a
particular field. It is readily conceded that it would not be desir
able, or even possible, to apply to all classes of labor the plan which
would best meet the ends of justice and of expediency in the field of
railway labor. No attempt is made here to present or to defend a
solution for all the ills of society that may come as a result of the
maladjustment of the factions of capital and labor. Railway labor,
and railway labor alone, is the problem under examination. Nor is
it proposed to suggest that any device, however well planned and how
ever well administered, will usher in a Utopian railway labor com
monwealth. It is believed, though, that some plans give promise of
better results than do others. Doubtless there are objections to any
method mentioned. But this holds true with reference to almost any
proposed remedy for any condition that needs remedying. All that
is attempted here is an examination of the several solutions that have
been proposed, a study of the causes leading to each proposal, and
the reactions thereto ox the classes of people affected, i. e., an examina
tion in the light of the experience in the United States.
Incidentally, the critical examination of the methods of Govern
ment intervention*will serve the purpose of bringing out the strong
points that can be urged in favor of the solution attempted in the
transportation act of 1920.
A brief discussion, by means of an examination of some of the
leading cases, of the constitutional issues involved in Government
action for the prevention and the settlement of railway labor dis
putes appears in Appendix A.
Copies of the act of 1888, of the Erdman Act, of the Newlands law,
of the Adamson law, and of that section of the transportation act
of 1920 in which provision is made for the adjustment of railway
labor controversies are set forth in Appendix B.

CHAPTER I.—EARLY PERIOD: LAW OF 1888.
ATTITUDE OF LABOR AND RAILWAY INTERESTS.

Although the first act of the Federal Government for the settle
ment of railway-labor disputes was not passed until 1888, media
tions and arbitration had for a number of years attracted the atten
tion and challenged the thought of men interested in such matters.
Several attempts had been made to pass a law applying to such con
troversies. But the labor problem at that time was relatively simple
and the disturbances were relatively infrequent as compared with
those that have come in recent years. Therefore the issue was a less
pressing one then than it has later come to be.
It is interesting to note that the early attitude of the railwaylabor organizations was quite different from what it has been within
the last few years. Most of the labor interests then favored the set
tlement of disputes by arbitration; some of them even went so far
as to advocate compulsory arbitration. Charles Wilson, grand chief
of the Brotherhood of Locomotive Engineers, as early as 1873, said
that his organization had always favored arbitration.7 Eugene Y.
Debs, editor of the Firemen’s Magazine, expressed himself as op
posed to strikes:
We have said we are opposed to strikes as a means of settling controverted
labor questions. We are opposed to strikes primarily, because we are satisfied
they do not promote the welfare of the laboring man. We are persuaded from
readings, observation, and experience that there is a better way out than to
“ strike ” out.8

The Brotherhood of Locomotive Engineers’ Journal, for February,
1886, printed with evident approval an article by an American in
ventor advocating the introduction of a plan for the amicable settle
ment of labor disputes—a plan binding alike upon employer and em
ployee. The disorganization of industry occasioned by the calling
of strikes was given consideration.
It should be said, however, that in the main the labor interests
favored voluntary arbitration only. At no time in the history of
organized labor has there been a majority in favor of compulsory
arbitration. But the railway-labor organizations in the early days
were comparatively weak, "they realized the inequality of any con
flict between themselves and the managers. Therefore the employees
welcomed the solution of their difficulties by any agency through
which they believed they had nothing to lose and a possibility of
gain. An examination of the evolution of the organizations and of
7 T h e R a ilr o a d G a z e tte , V o l. V , p p . 1 5 6 , 1 5 7 .
8 B r o th e r h o o d o f L o c o m o tiv e F ir e m e n a n d E n g in e m e n ’s M a g a z in e , V o l. V I I I , p. 2 7 9
(M a y , 1 8 8 4 ).

USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

their attitude toward the successive forms of arbitration will show
that they have modified from time to time their attitude toward Gov
ernment intervention and toward the form which arbitration for the
settlement of their controversies should take. Along with the mar
velous growth of the brotherhoods there has come such a degree of
power that they are reluctant to forego the use of collective action,
their most effective weapon.
But the labor element does not hold a unique position because of
having changed its views on arbitration. During the period prior
to the passage of the interstate commerce act in 1887 the railroads
wanted no interference on the part of the Government. Their ob
jection was not limited to intervention for the purpose of adjusting
controversies with the men; they regarded with disfavor any Gov
ernment activity that would tend to interfere with the freedom of
action o f the managers. One illustration of this position in the
year 1874 will suffice to make the point clear. Representative Mc
Crary of Iowa suggested in Congress that a commission be ap
pointed rfor the purpose of regulating the railroads. He defended
the validity of his proposal on the basis of the commerce clause of
the Constitution. The Railroad Gazette, which in the main repre
sented the point of view of the railroads, said:

If transportation is commerce, it certainly is not all of commerce. Those who
buy and sell are engaged in commerce as certainly as those who carry the ma
terials bought and sold; and if, under this constitutional provision, Congress
has the right to determine the prices at which the work shall be done in the
case of the latter, so it must have in the case of the former; and the profits
of merchants on goods bought in one State .and sold in another are subject to
the decision of Congress at Washington.9

The writer of the above editorial did not have in mind the' settle
ment of the labor problem. Yet the theory of noninterference, if
subscribed to as to the regulation of rates, would inevitably imply
noninterference in the regulation of the labor end of the business.
But the Gazette, in theory at least, favored voluntary arbitration;
or, rather, it expressed the belief that there was no reason why the
opposing interests should not reach an amicable adjustment of what
ever differences might arise between them.10 The Gazette was quite
vigorous in its opposition to compulsory arbitration. When a bill
was introduced in Congress for the purpose of securing compulsory
arbitration, the Gazette, in its issue of April 2, 1886, said:

A bill has been introduced in Congress to prevent it [a strike] by Government
arbitration, the results of which the railroads and their employees shall be
forced to accept. Aside from other objections, the fatal one to this is that the
men can not be forced to accept any terms they do not like, and it is feared
that there would be no end of strikes or appeals to arbitration if the men stood
a chance of gaining by them and no chance of losing.11

PRELIMINARY CONGRESSIONAL CONSIDERATION AND VIEWS
ON PROPOSALS.

As early as 1882 Congress began the consideration of methods and
devices for the settlement of railway labor disputes. On June 15,
1882, Senator Morgan of Alabama offered a resolution calling for
8 T h e R a ilr o a d G a z e tte , V ol. V I, p. 1 1 3 (M a r. 2 8 , 1 8 7 4 ) .
10 Id e m , V o l. I X , p p. 7 4 , 7 5 (F e b . 1 6 , 1 8 7 7 ) .
11 Id e m , V o l. X V I I I , p. 2 3 2 .

9
the appointment of a committee to investigate and to propose a so
lution for railway labor troubles.12
The Senators speaking on the resolution agreed that it was an im
portant one and that it should have congressional consideration.
They disagreed, however, as to which of the Senate committees
should have the resolution referred to it. It was finally agreed to
refer it to the Committee on Education and Labor. Mr. Morgan, in
advocating the resolution, said:
EARLY PERIOD: LAW OF 1888.

For my part, I confess that I am ignorant of this great industrial agitation
in the land, and I am apprehensive as to its results, and I think it is the duty
of Congress, in the protection of all the industrial classes of this country, as
well as in the protection of the capitalists, to look into this question through
one of its select committees.13

Mr. Morgan mentioned the railroad strike of March 1, 18825 on a
railroad at Omaha, as the kind of trouble to which he made reference.
On June 28, Senator Blair, of New Hampshire, for the Committee
on Education and Labor, reported a substitute for the Morgan reso
lution.14 In effect, this resolution was that a committee be appointed
to investigate the causes of labor troubles and to report remedies
therefor. The resolution passed the Senate. Again, on February
26, 1883, at the request of Mr. Blair, the committee was authorized
to continue its investigations.15
While it would be inadvisable to discuss in detail all the bills and
resolutions that Congress has had under consideration as measures
for meeting the railroad labor problem, attention is called to this
one as an illustration of the early recognition by Congress that the
railway labor problem was one which should be solved by the Federal
Government. Congress seems to have neglected further consideration
of the matter until the spring of 1886. This neglect was perhaps due
to the fact that in this period railway labor difficulties were not of
such importance as to demand congressional action.
President Cleveland is commonly believed to have started the con
gressional consideration of railway labor legislation in 1886. How
ever, the Congressional Record shows that several bills of this kind
were introduced in. the House of Representatives in March, whereas
the President’s recommendation was made in April.16 One of the
bills (H. R, 7479) reported favorably by the Committee on Labor17
provided that in any controversy between the railroads and their
employees which threatened to interfere with interstate commerce,
either party to the dispute might make a written request for arbi
tration. Should the other party accept the proposed arbitration each
side was to appoint one representative, and these two were to select
a third member of the arbitration board.
A great deal of discussion was precipitated as a result of the intro
duction of this measure by the committee. Some of the Members of
Congress approved the proposal, while others of them pronounced
it as so much “ buncombe.” Its provisions were too stringent to meet
with the approval of some of the Members and too lenient to win the
indorsement of others. Representative Glover, of Missouri, presented
12 C o n g r e ssio n a l R ec o rd , V ol. X I I I , p. 4 9 2 4 .
13 Id em , V ol. X I I I , p. 5 1 6 1 (J u n e 2 1 , 1 8 8 2 ).
14 Id em , p. 5 4 3 0 .
15 Id e m , V ol. X IV , p . 3 2 6 6 .
10 4 9 t h C on g ., H . R . 7 0 2 0 ; H . R . 7 0 8 1 ; TI. R 7 4 7 9 .
17 C o n g r e s s io n a l R ec o rd , V ol. X V I I , p . 2 9 5 9 (M a r. 3 1 , 1 8 8 6 ) .

USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

a substitute bill, in which he gave either party the right to* demand
arbitration, the award of which was to be binding upon both.
Failure to comply with the decision of the arbitrators was to be
punished* by fin$ or imprisonment.18 Representative Anderson, of
Kansas, presented another substitute.19 He would have the Presi
dent of the Upited States appoint a permanent commission of arbi
tration consisting of five members to examine, upon its own initia
tive, into a railway labor controversy and to suggest a settlement to
the contending parties. It could appeal to a court for an injunction
to enforce the acceptance of its award.
Perhaps Representative Foran, of Ohio, summarized as well as
any Member of the House the feeling of opposition to these bills:

I am opposed to all arbitration for the adjustment of industrial controversies
between labor and capital which is based upon legislative enactment, whether
it be voluntary or compulsory. Hence I am opposed to the substitute offered
by the geptleman from Missouri [Mr. Glover] and I am opposed to the bill of
the gentleman from Kansas [Mr. Anderson] and the bill introduced yesterday
by the gentleman from Missouri [Mr. O’Neil]. All these bills, unlike the meas
ure now under consideration by the House, favor and provide for compulsory
arbitration. Without the spirit of mutual conciliation, the disinterested desire
to amicably adjust differences of opinion, arbitration is a nullity and must
necessarily fail. * * *
I am not prepared to give the judges of the courts of the United States the
right to imprison men for contempt, to coerce by the'm ilitary arm of the^Government men whp are honestly contending for a principle they believe to be
right. Compulsory arbitration would so shackle labor that its freedom and its
right to organize for self-protection would eventually disappear.20

The excerpt given above is representative of the feeling expressed
by many of the Congressmen in reference to the proposed measures.
Other speakers insisted that arbitration was the only way in which
the trouble could be settled. And the great majority wanted this
arbitration to be voluntary. Some, however, persisted in upholding
compulsory arbitration.
Representative McKinley, who later became President of the
United States, spoke in favor of the adoption of the bill introduced
by the committee. He dwelt upon the efficacy of arbitration as a
means for the adjustment of difficulties and for the promotion of the
right relationships in the industrial field.21
Consideration of this legislation was not confined to the halls of
Congress. Several Congressmen adverted to the public interest in
railway labor strikes. Following is an excerpt from a speech by Mr.
Glover:

Now, I do not speak either in the interest of capital or in the interest of
labor. There is besides these two the great body of people whose interests are
supreme, and the cry coming from the third party is rising loud enough to be
heard in this House. That third party is the public.22

Some leading newspapers published editorials calling attention to
the public nature of the railroads and insisting that neither party
to a dispute should be allowed to subject the public to the incon
venience incident to the calling of strikes on the railroads.23
“ C o n g r e s s io n a l R ec o rd , V o l. X V I I , p p . 2 9 6 0 , 2 9 6 1 (M a r . 3 1 , 1 8 8 6 ) .
16 Id em , p p . 2 9 8 0 , 2 9 8 1 (M a r . 3 1 , 1 8 8 6 ).
20 Id em , p. 2 9 6 2 (M a r. 3 1 , 1 8 8 6 ) .
N
21 Id em , p p . 3 0 3 8 , 3 0 3 9 (A p r . 2, 1 8 8 6 ) .
22 Id em , p . 2 9 7 0 (M a r . 3 1 , 1 8 8 6 ) .
28 T h e C h ic a g o T rib u n e s a i d : “ W h e n th e p a r tie s c h a r g e d w it h th e d u tie s o f o p e r a tin g
a n d k e e p in g o p e n th e r a ilr o a d h ig h w a y s o f th e c o u n tr y e n te r in to c o m b in a tio n s t o c lo s e
th e s e a v e n u e s o f tra ffic, d e r a n g e b u sin e ss , a n d e x p o s e th e w h o le A m e r ic a n p e o p le to

EARLY PERIOD: LAW OF 1888.

Strange as it may seem, the organization of the Knights of Labor
was in favor of compulsory arbitration at the period under observa
tion. The preamble to the constitution of the order demanded “ The
enactment of laws providing for arbitration between employers and
employed and to enforce the decision of the arbitrators.”24 Several of
the local chapters of the organization petitioned Congress for the
passage of arbitration laws.25
Commissioner of Labor Carroll D. Wright, in his annual report
for 1886, advocated the establishment of some sort of Government
agency to facilitate the arbitration of disputes in the field of labor.26
Mr. Wright insisted, however, that such arbitration should be vol
untary on the part of the parties to the disputes. At no time did
Mr. Wright favor compulsory arbitration.
In spite of the vigorous opposition to House bill 7479, with a few
amendments of minor importance it passed the House of Repre
sentatives on April 3, 1886.27 One hundred and ninety-nine voted in
favor of the bill and 30 against it. This bill, as passed by the House,
was later—February 28, 1887—passed by the Senate without amend
ment.28
But President Cleveland had views of his own as to what pro
visions should be incorporated in the bill passed by Congress. He
therefore refused to approve the measure within the 10-day period
provided to make it law. In his message of April 22,1886, President
Cleveland had outlined the terms he thought necessary in such leg
islation.29 He proposed a permanent commission consisting of three
members appointed by the President. The permanence of the com
mission was designed to give it stability and to enable the members
to acquire skill in the handling of labor controversies. The commis
sion was to have full authority to investigate any difficulty between
capital and labor which threatened an interference with interstate
commerce:

If the usefulness of such a commission is doubted because it might lack
power to enforce its decisions, much encouragement is derived from the con
ceded good that has been accomplished by the railroad commissions which have
been organized in many of the States, which, having little more than advisory
power, have exerted a most salutary influence in the settlement of disputes
between conflicting interests.
h a r m fu l d iso r d e r a n d in ju r y , n o fu r th e r a r g u m e n t is n e e d e d to s h o w th e n e c e s s ity o f a
c o m p u ls o r y s e ttle m e n t o f a ll d is p u te s b e tw e e n com m o n c a r r ie r s a n d th e ir e m p lo y e e s. I t
is tim e f o r t h e la w t o d e c la r e t h a t n e ith e r p a r ty t o su c h c o n tr o v e r s ie s s h a ll u s e p u b lic
n e c e s s it ie s t o fo r c e a c o m p lia n c e w ith i t s d e m a n d s b y t h r o t tlin g t h e lin e s o f com m u
n ic a t io n .” T h e N e w Y ork W o r ld s a i d : “ I t c a n b e se e n a t o n c e t h a t r a ilr o a d s tr ik e s a re
v e r y d iffe r e n t th in g s fr o m th o s e a r is in g in b u sin e ss o f a p r iv a te c h a r a c te r . I t is sim p ly a
m a tte r o f n e c e s s ity t h a t th e lia b ility o f th e o c c u r r e n c e b e r ed u c ed to a m in im u m , i f in d e e d
i t ca n n o t be e n d e d a lto g e th e r . * * * C o u r ts o f a r b itr a tio n c a n d e te r m in e w h a t is
fa ir a n d c o m p el th e c o m p a n ie s to liv e u p to th e ir c o n tr a c ts w it h th e p u b lic a c c o r d in g ly .”
(I n s ta te m e n t b y M r. G lo v e r : C o n g r e ssio n a l R ec o rd , V ol. X V I I , p. 2 9 7 1 (M a r. 3 1, 1 8 8 6 ) .)
24 C o n s titu tio n o f th e In d e p e n d e n t O rd er, K n ig h ts o f L ab o r, W a s h in g to n , 1 8 8 8 , p. 8.
25 “ R e s o lv e d , T h a t w e c a ll u p o n o u r le g is la tu r e s , b o th S t a t e a n d N a tio n a l, to e n a c t
s u c h m e a s u r e s a s w ill c o m p el t h e r e c o g n itio n o f la b o r o r g a n iz a tio n s , a n d c o m p el cor
p o r a tio n s to a r b itr a te d iffe r e n c e s b e tw e e n a n d w it h th e m s e lv e s a n d th e ir e m p lo y e e s .”
(P r e se n te d b y M r. G lo v e r : C o n g r e s s io n a l R ec o rd , V o l. X V I I , p. 2 9 7 3 (M a r . 3 1 , 1 8 8 6 ) .)
In th e S e n a te S e n a to r H a r r is o n , o f I n d ia n a , p r e s e n te d a p e titio n fr o m 11 o fficers o f
th e K n ig h ts o f L ab o r o f F o r t W a y n e, Ind.,, p r a y in g fo r th e sp e e d y p a s s a g e o f th e b ill
fo r t h e a r b itr a tio n o f a ll d isp u te s . (C o n g r e s sio n a l R eco rd , V ol. X V I I , p. 3 3 4 9 .)
M r. B la ir p r e s e n te d a s im ila r p e titio n fr o m th e la b o r o r g a n iz a tio n a t M a n c h e ste r , N . H .
(C o n g r e s sio n a l R ec o rd , V o l. X V I I , p. 3 3 7 5 .)
28 U . S. C o m m issio n e r o f L ab o r. F ir s t A n n u a l R e p o r t, p . 2 7 5 .
27 C o n g r e s s io n a l R ec o rd , V ol. X V I I , p. 3 0 6 6 .
28 Id em , V o l. X V I I I , p . 2 3 7 6 .
28 Id e m , V o l. X V I I , p p . 3 7 2 8 - 3 7 2 9 .

12 USE OF FEDERAL POWER IK RAILWAY LABOR DISPUTES.
The President suggested that the commission might be composed
of the Commissioner of Labor, whose appointment Congress had
authorized in 1884, and two other members to cooperate with the
commissioner. In his special message of December 6, 1886, Presi
dent Cleveland again recommended the creation of such a com
mission.30
A committee of thfe House of Representatives, appointed to investi
gate railroad strikes, made its report on March 3, 1887. This report
emphasized the public nature of the railroad business and the legal
basis for the regulation of it. But arbitration did not seem to this
committee to be the solution of the labor problem on the railroads.31
During the following session of Congress two bills for the set
tlement of railway labor disputes were considered.32 The bill which
ultimately received the approval of Congress was House bill 8665,
introduced by Representative 0 ?Neill, of Missouri. This bill con
tained the provisions of the one passed in the preceding ses^on,
modified, however, in such manner as to comply with the suggestions
made by President Cleveland. The President was authorized to
appoint a special board to visit the scene of any threatened strike
and to report the causes of the trouble. Arbitration under the meas
ure was to be voluntary.
Just as in the case of the bill of the preceding session of Congress,
this one elicited expressions of approval and of disapproval from the
Members of Congress. Those who opposed the enactment of the law
did so, in the main, upon the theory that the new legislation would
add nothing to the existing facilities for the adjustment of con
troversies in the railway labor field.3334
On the other hand, the bill was heartily approved by many of the
Members. Representative Cannon, of Illinois, said that he con
sidered the most important part of the bill that provision which
called for the appointment by the President of a special commission
to investigate any controversy that might arise.84 As will appear
in the following chapter, Mr. Cannon was correct in his appraisal of
the relative merits of the provisions of the bill.
110 C o n g r e ssio n a l R ec o rd , V o l. X V I I I , p . 1 1 . *
31 “ W h a te v e r r em ed y w ill g iv e th e p r o p e r p r o te c tio n to c a p ita l in v e s te d in t h e r a il
r o a d s o f th e c o u n tr y a n d a t th e s a m e tim e p r o te c t th e ir e m p lo y e e s fro m in ju s t ic e a n d
o p p r e ssio n , y o u r c o m m itte e p ro p o se t h a t th e y s h a ll to g e th e r , a s a s in g le in s tr u m e n t o f
o u r in te r s t a t e c o m m e r ce , b e lo o k e d u p o n a s s e r v a n ts o f t h e p e o p le o f t i e U n ite d S t a t e s ,
a n d a s su c h b e r e g u la te d a n d p r o te c te d b y la w * * *.
“ A m a jo r ity o f y o u r c o m m itte e c a n n o t b e lie v e t h a t a r b itr a tio n c a n b e e ffe c tiv e fo r
t h e r e a s o n t h a t th e r e m u s t b e tw o p a r tie s t o t h e a r b itr a tio n , a n d e ith e r m a y d e c lin e .
A n d s a id m a jo r ity fu r th e r b e lie v e t h a t w h e n d istu r b a n c e s o c c u r i t w o u ld n o t b e e ffe c tiv e
in im m e d ia te ly r e d r e s s in g w r o n g s o r r e s to r e th e m e a n s o f t r a n s it o f p er so n a n d p r o p e r ty
to th e p e o p le o f th e c o u n tr y .” (H . K ep t. 4 1 7 4 , 4 9 t h C o n g ., P t. I, p . x x iv .)
82 6 0 th C o n g .: H . R . 1 4 3 2 ; H . R . 8 6 6 5 .
** R e p r e s e n ta tiv e P a r k e r , o f N e w Y ork , s a i d : “ I a m o p p o se d to t h is b ill b e c a u se , in
m y ju d g m e n t, i t i s g o o d fo r n o th in g . I t r e a c h e s n o w h e r e a n d i t le a d s n o w h e r e .” H e
a d v o c a te d a m e a s u r e w h ic h w o u ld d e c la r e u n la w fu l a s tr ik e p e n d in g th e in v e s t ig a t io n
o f i t a n d a r e p o r t th e r e o n b y a G o v e r n m e n t c o m m issio n . “ W e sh o u ld h a v e f ir s t in v e s t i
g a t io n ; w e s h o u ld h a v e n e x t p r o v isio n f o r p u b lic ity th r o u g h p u t t h e c o u n tr y . B e y o n d
th a t,, w e s h o u ld h a v e p o w e r t o c o m p el a r b itr a tio n .
H e o p p o sed t h is m e a s u r e a ll th e
m o r e a r d e n tly b e c a u se h e b e lie v e d t h a t i t s e n a c tm e n t w o u ld se r v e a s a b a r r ie r t o th e
p a s s a g e o f a la w w ith t e e t h in i t . S u c h a la w , h e th o u g h t, c o u ld b e e n a c te d .
R e p r e s e n ta tiv e T illm a n , o f S o u th C a r o lin a , in c h a r a c te r is tic te r m s, e x p r e s s e d h is
o p p o s itio n t o t h e b i l l : “ I h o p e th e H o u s e w ill n o t p e r m it t h is ‘ fr a u d ,’ a s t h e g e n tle m a n
fro ih N e w Y ork c a lle d it, to b e p a s s e d . I t is a s v o id ' o f a n y p r a c tic a l u t ilit y t o t h e
p u b lic , to th e r a ilr o a d s , o r to th e o ffic er s a n d a g e n t s o f t h e r a ilr o a d s a s a b a llo o n .”
A n o th e r v ig o r o u s d e n u n c ia tio n o f t h e m e a s u r e w a s m a d e b y M r. F o r a n , o f O h io :
“ I t h in k th e e n a c tm e n t o f t h is b ill in to la w w o u ld sim p ly p la c e o n th e s t a t u t e b oo k s
o f th e U n ite d S ta te s a le g is la t iv e e u n u c h .” (C o n g r e s sio n a l R ec o rd , V ol. X I X , p p . 3 0 9 9 ,
3 1 0 0 , a n d 3 1 0 5 ( 1 8 8 8 ) .)
34 C o n g r e s s io n a l R ec o rd , V o l. X I X , p. 3 1 0 7 (A p r . 1 8 , 1 8 8 8 ) .

EARLY PERIOD: LAW OF 1888.

THE LAW OF 1888.
PROVISIONS.

The bill discussed above passed the House on April 18, was accepted
by the Senate without amendment on September 14, and received the
approval of President Cleveland on October 1,1888.35
The provisions of the law as enacted fall logically into two main
categories.36 The first five sections of the act provide for voluntary
arbitration whenever any difficulty between railway managers and
employees threatens to interfere with the movement of interstate
commerce. Either side may apply in writing for arbitration under
the law. If the other side to the controversy accepts, each side shall
appoint one representative, and these two shall select a third, the
three forming the board of arbitration. Power is given to the board
to subpoena witnesses, receive testimony, examine records, etc. When
an award is made it is to be transmitted to the Commissioner of
Labor. This official shall publish the terms of the award. The
essential feature of this arbitration is that it is entirely voluntary
upon the part of both parties thereto. The act makes no provision
for the enforcement of the award rendered. Public opinion is relied
upon to force compliance therewith.
The second part of the law deals with the appointment of in
vestigation committees in accordance with the recommendations
that had been made by President Cleveland. When the President
deems it necessary, in order to prevent an interference with inter
state commerce, he rriay appoint two commissioners one of whom is
to be a resident of the State in which the controversy occurs. These
two appointees, together with the Commissioner of Labor are to
constitute a special investigation committee. The board is to try
to ascertain the causes of the trouble investigated and to make recom
mendations for its settlement. This report is to be published, and
upon the publication the life of the commission ends. The services
of the investigating commission are to be tendered upon the initi
ative of the President, upon an invitation from one of the contend
ing parties, or upon the suggestion of the chief executive of the
State in which the trouble arises. The commission has for the secur
ing of information the same power and authority that arbitration
boards have in arbitration proceedings. The National Government
is to bear all expenses incident to arbitration and investigation pro
ceedings under the law.
SIGNIFICANCE.

Notwithstanding the great commotion that was occasioned in
Congress by the passage of the law the arbitration provision was
never used throughout the 10 years in which the law was on the
statute books. The investigation authorized by the act—the part
of the law which seemed to most people at the time of the passage
of the law the less important feature, although this was not true
of the President—was brought into use in one strike of large pro
35 C o n g r e ssio n a l R ec o rd , V o l. X I X , p p . 3 1 0 9 , 8 6 0 9 , a n d 9Q 74,
36 2P S ta t., 5 0 th C on g ., ch . 1 0 6 3 .

USE OE FEDERAL POWER IN RAILWAY LABOR DISPUTES.

portions. This will be the topic of the following chapter, in which
the Pullman strike of 1894 is discussed.
While the law of 1888 had no apparent effect on the settlement
of railway labor disputes in general this does not signify that the
law was a complete failure. Many of its main provisions were later
incorporated in the laws that were passed for the purpose of meet
ing the situation designed to be remedied by the enactment of this
law. Perhaps, the greatest significance of the law lies in the fact
that this was the initial legislation by the Federal Government with
a view to handling the railway labor problem. It served as an enter
ing wedge for the passage of similar laws which were successful in
their operation. An examination of the laws enacted in 1898 arid
in 1913 shows a marked similarity to the old law of 1888. As a
background and as a basis for the later laws, then, the one enacted
in 1888 has a large place in the history of the activities of the Na
tional Government in the railway labor field.

CHAPTER II.—THE PULLMAN STRIKE OF 1894.
THE STRIKE, AND ACTION BY FEDERAL OFFICIALS.

In 1894, before the passage of any further legislation dealing with
the settlement of railway labor disputes, the country was called upon
to witness an unprecedented exercise of Federal power in this field.
During the latter part of 1893 and the first half of 1894 the Pullman
Palace Car Co. had a disagreement with its employees at Pullman,
111. Wages, rents, and shop conditions were involved in the troubles.
On May 10,1894, the unions voted to strike. The American Railway
Union, under the leadership of Eugene V. Debs, espoused the cause
of the Pullman employees, whose union was affiliated with the Ameri
can Railway Union. Debs asked the Pullman Co. to arbitrate the
controversy. The company refused to do this, claiming that there
was nothing to arbitrate. As a result of this attitude on the part
of the Pullman officials the American Railway Union, in convention
in Chicago on June 21, voted unanimously that the members of the
union should refuse to haul cars belonging to the offending company.
This, in effect, was the declaration of a strike in sympathy with the
Pullman employees.1
During the period that followed the calling of the strike the more
reckless elements indulged in outbursts of violence and caused serious
inconvenience and injury to the public.2* The local officials were
either unable or unwilling to handle the situation. # Because there was
incidental interference with the movement of the#mails and with in
terstate commerce, Federal officials intervened in the matter. At
torney General Olney sent the Federal officials throughout the pare
of the country affected the following telegram:
See that the passage of regular trains carrying United States mails in the
usual and ordinary way, as contemplated by the act of Congress and directed
by the Postmaster General, is not obstructed. Procure warrants or any other
available process from United States courts against any and all persons engaged
in such obstruction and direct marshal to execute the same by such number of
deputies or such posse as may be necessary.8

Ordinary police proved inadequate to handle the difficulty in such
a manner as to prevent violence. Therefore, the President ordered
Federal troops to Chicago for the purpose of protecting Federal
property; preventing the obstruction of the mails; preventing the
interruption of interstate commerce; and enforcing the decrees of
the Federal courts. This was all done without any application from
the governor of Illinois or from the legislature of the State.4* But
1 U. S. Strike Commission.
Report of Chicago Strike, S. Ex. Doe. No. 7, 53d Cong.,
3d sess.
2 Idem, pp. xliii-xlvi.
:i U. S. Attorney General. Appendix to annual report for 1896, p. 6.
4 U. S. Strike Commission.
Report of Chicago Strike, S. Ex, Doc. No. 7, 53d Cong.,
3d sess., p. xx.

USE OF FEDERAL, POWER IN RAILWAY LABOR DISPUTES.

sections 5298 and 5299 of the Revised Statutes authorized the Presi
dent to act thus under the conditions then obtaining in Illinois.
ATTITUDE OF THE PEOPLE.

The action of the President and of the Attorney General raised
a storm of protest from some quarters and 'from other sources
hearty commendation for the work accomplished. From Mr. Olney’s
own State of Mp^sg^husetts criticisms came.5 Those who approved
the action of the administration saw in it the strengthening of the
faith of the people in the institutions of the Government in this
country;6 others; s^w in the whole situation another argument for
the stringent legislation already suggested for handling such emer
gencies in the railroad field.7 The Railroad Gazette considered the
action of President Cleveland that of a true statesman.8 But, ac
cording to Mr. Gompers, president of the American Federation of
Labor, the President had been guilty of a violation of our most
sacred rights as free men in a free and democratic country.9
VIEWS OF MEMBERS OF CONGRESS.

The feeling of the Members of Congress concerning the Pullman
interference was divided. Representative Fithian, of Illinois, criti
cized the President for sending troops to Chicago without first having
been asked b y the governor of the State to do iso:

Federal troops, in my judgment, can not be sent into a State by the President
without permission of the executive of the State or the legislature, when in
session, without violating the Constitution and fundamental principles.10

Representative Bland, of Missouri, said that if we must have im
perialism it should come only with the consent of the Representatives
of the people in Congress.11 Representative Pence, of Colorado,
criticized Mr. Olney on the ground that he was a corporation lawyer.12

5 The following message was sent Mr. Olney on July 8, 1894: “ A meeting of citizens
on Boston Common to-day passed resolution deeply regretting your delivery of the United
States Government to the railroad kings, and indorsed the western strikes.” (Appendix
to Annual Report of U. S. Attorney General for 1896, p. 126.)
6 The United States Attorney for Utah wrote to Mr. Olney : “ I beg to give to yon and to
the President my congratulations upon the prompt and sturdy manner in which the
emergency was met and dealt with. Public sentiment in this western country was
greatly strengthened by such action; and it is a common thing now upon every street
corner, almost, to hear people who, 10 days ago, were trembling for our institutions,
give forth healthy sentiment of confidence in the future of our Government.” (Idem,
p. 198.)
7 A message from Manchester, N. H., stated : “ I think Congress should at once pass
a law that whoever shall be guilty of hindering or obstructing the business of any
railroad engaged in interstate business or the carrying of the United States mails, or
who aids or . abets, directly* or indirectly, in attempts so to do, shall be imprisoned not
less than 10 years nor more than 20 years.” (Idem, p. 153.)
8 *
* '* It m ust be clear to every dispassionate mind that Mr. Cleveland has
acted in this trying occasion not only within constitutional limits, but with considerable
moderation, forbearance, and dignity. And we shall have the more confidence in the
perpetuity of our Governments* (The Railroad Gazette, Vol. XXVI, p. 495 (July, 1894).)
9 “ The President of the United States has no more legal or moral right to violate
the constitutional guaranties of the people and our States than the humblest citizen,
and it is only in a humble and manly determination to maintain and defend our rights
that we can hope to perpetuate our republic, and hand it down to posterity not only
unimpaired but improved.” (Report of Proceedings of the American Federation of
Labor, 1894, p. 11.)
10 Congressional Record, Vol. XXVII, pp. 2799, 2800 (Feb. 26, 1895).
11 Idem, Vol. XXVI, p. 7545 (July 16, 1894).
12 Idem, p. 7544 (July 16, 1894).

17
But the majority opinion in Congress indorsed the action of the
President. On July 11, 1894, the following resolution passed the
Senate:
THE PULLMAN STRIKE OF 1894.

R e s o lv e d , That the Senate indorses the prompt and vigorous measures adopted
by the President of the United States and the members of his administration
to repulse and repress, by military force, the interference of lawless men with
the due process of the laws of the United States and with the transportation of
the mails and with commerce among the States.
The action of the President and his administration has the full sympathy
and support of the law-abiding masses of the people of the United States, and
he will be supported by all departments of the Government and by the power
and resources of the entire Nation.18

A similar resolution was adopted by the House of Representatives
on July 16.1314
DECISION OF FEDERAL SUPREME COURT.
IN RE DEBS.15

In 1895 the Federal Supreme Court was called upon to make a
decision which involved the validity of the action of President Cleve
land in intervening in the Chicago trouble. This case was the wellknown one, In re Debs. In connection with the Pullman strike Debs
and others had been enjoined by the circuit court from conspiring
to do anything that would interfere with the carrying of the United
States mails or with the movement of interstate commerce. They had
failed to comply with the terms of the court’s order and were ad
judged guilty of contempt of court, having been sentenced to prison
therefor. On January 14. 1895, they applied for a writ of habeas
corpus, alleging the invalidity of the restraining order because, they
contended, the action of the Federal Government in stepping into the
local trouble was a violation of the Constitution. Should the court
uphold the order of the lower court, that meant approval of the right
of Government intervention.
Mr. Justice Brewer ruled against the applicants. The issue in
volved the determination of the sphere of Government in this field.
A few of the vital sentences in the decision are herewith given:

Two questions of importance are presented: First, Are the relations of the
General Government to interstate commerce and the transportation of the mails
such as to authorize a direct interference to prevent a forcible obstruction
thereof? Second, If authority exists, as authority in governmental matters im
plies both power and duty, has a court of equity jurisdiction to issue an injunc
tion in aid of the performance of such duty?

The first of these two questions is relevant to the inquiry of this
paper. Answering this the court said:

As, under the Constitution, power over interstate commerce and the transpor
tation of the mails is vested in the National Government, and Congress by virtue
of such grant has assumed actual and direct control, it follows that the National
Government may prevent any unlawful and forcible interference therewith.
The entire strength of the Nation may be used to enforce in any part of the
land the full and free exercise of all national powers, and the security of all
rights intrusted by the Constitution to its care. The strong arm of the National
13
14
15

Congressional Record, Vol. XXVI, pp. 7282, 7284.
Idem, pp. 7544, 7546.
158 U. S. 564.
79994°—% -2

USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

Government may be put forth to brush away all obstructions to the freedom of
interstate commerce or the transportation of the mails. If the emergency arises,
the Army of the Nation, and all its militia, are at the service of the Nation to
compel obedience to its laws.
So, in the case before us, the right to use force does not exclude the right to
appeal to the courts for a judicial determination and for the exercise of all their
powers of prevention.
The National Government, given by the Constitution power to regulate inter
state commerce, has by express statute assumed jurisdiction over such com
merce when carried upon railroads. It is charged, therefore, with the duty
of keeping those highways of interstate commerce free from obstruction, for
it has always been recognized as one of the powers of a government to move
obstructions from the highways under its control.
LABOR’S VIEW OF THE DECISION.

This decision fell like a bomb into the field of labor. The labor
unionists regarded it as an evidence that the courts were partial to the
capitalistic interests of the country. The leaders of the unions have
always insisted that they must retain the right to leave their work
either individually or collectively. Otherwise, in their view, they
should be little better than were the slaves of antiquity. An editorial
in the American Federationist for June, 1895, summarized the views
of the leaders on the decision of the court:

The decision of the United States Supreme Court in the Debs case is the worst
ever made by such a court, so far as the interests of labor are concerned. * * *
Strikes are the last resort of working people to obtain justice at the hands of
unscrupulous employers, and when the right is taken from labor, as now it is
by the Federal courts, laboring men know that their liberties have been abridged
for no other purpose than that of enlarging the power and privileges of capital.
It is safe to say that labor will find redress in some form or other, and that
ere Ipng.16
PRESIDENT CLEVELAND’S STATEMENT ON THE DECISION.

President Cleveland was very much pleased by the decision in the
Debs case. In McClure’s Magazine for July, 1904, he concluded his
discussion of the case thus:

Thus the Supreme Court of the United States has written the concluding
words of this history, tragical in many of its details, and in every line provoking
sober reflection. As we gratefully turn its concluding page, those most nearly
related by Executive responsibility to the troublous days whose story is told
may well congratulate themselves, especially on the participation in marking
out the way and clearing the path, now unchangeably established, which shall
hereafter guide our Nation safely and surely in the exercise of its functions,
which represent the people’s trust.17
THE STRIKE COMMISSION.18
PERSONNEL.

President Cleveland appointed a commission to investigate the
Pullman troubles. The commission consisted of United States Com
missioner of Labor Carroll D. Wright; John D. Kernan, of New
York; and Nicholas E. Worthington, of Illinois. The commission
began hearings in Chicago on August 15, 1894, and closed on Au
16
17
18

American Federationist, Vol. II, p. 68.
McClure's Magazine, Vol. XXIII, p. 240.
Data in this section are from U. S, Strike Commission. Report on the Chicago

of June-July, 1894, 1895, p, xv.

strike,

19
gust 30. Another hearing was held in Washington on September 26.
A report of the proceedings and the recommendations of the com
mission was transmitted to the President on November 14, 1894.
THE PULLMAN STRIKE OF 1894.

FINDINGS AND RECOMMENDATIONS.

The conclusions and recommendations of the commission are of
great significance in so far as they deal with the methods of settling
railway labor disputes. It was suggested that a permanent com
mission consisting of three members be appointed. This commis
sion was to have in the railway labor field power similar to that of the
Interstate Commerce Commission in the field of railway rates. The
railroads were to be compelled to obey the decisions of such a board.
Pending an investigation by the commission no railroad could dis
charge an employee, save for certain specified reasons; nor could the
employee aid or abet a strike or boycott against the railroad for a
like period. For six months following a decision a railroad could
not discharge an employee in whose place another man was put
(except that certain specified grounds were to be regarded as justi
fying the discharge of a man). For the same period of time no
employee was to leave the employ of the railroad without first having
given 30 days’ notice of his intention to leave. Some sort of legisla
tion was to be enacted with a view to encouraging the labor organi
zations to become incorporated. The commission stated that it was
not prepared to express either approval or disapproval of the sug
gestion made to it that the railroad employees be required to take out
a license.
It is highly interesting to see so early as 1894 a responsible com
mission, headed by Commissioner Wright, give clear recognition and
expression to the paramount interest of the public in interferences
with the movement of railroad traffic, and also advocate positive
legislative action for the purpose of making such interruptions less
likely or even impossible.
The report of the commission, in an appendix, gave a digest
of the suggestions it had received as remedies for the situation. These
recommendations advocated such means as Government ownership
and control of the railroads, the licensing of the railroad employees,
pensioning the railroad men, the adoption of the single tax, statu
tory regulation of wages, the creation of a Federal commission to
deal with the situation, changing the financial system so as to avoid
depressions, etc.
It will be seen in a later chapter that several of these recommenda
tions have met with favor in recent periods. Especially interesting
is it to compare them with the .views expressed at the time of the
passage of the Adamson law.

CHAPTER III.—SECOND STAGE OF FEDERAL INTERVEN
TION: THE ERDMAN ACT.
EARLY CONSIDERATION AND ATTITUDE OF THE PEOPLE.

The passage of the first law for the settlement of railway labor
disputes does not appear to have decreased appreciably the agitation
for Federal action in this field or the discussion of the best means for
effecting a desirable solution of the problem. On December 20,
1889, Mr. Anderson, of Kansas, who had for some time taken an
active part in the legislative discussions of these problems, intro
duced a bill to create a United States commission to arbitrate railway
strikes and lockouts.1 On April 5, 1890, Mr. Blair introduced in the
Senate a bill the object of which was to settle such controversies.2
Then, on July 12,1892, a. resolution was: introduced by Senator Voorhees, of Indiana, asking the Committee on Education and Labor to
report on the advisability of establishing a commission of labor in
accordance with suggestions outlined in the message of President
Cleveland on April 22, 1886.3
No action was taken by Congress on any one of these bills, nor was
very great attention given to them in the congressional discussions.
However, in 1894 the Pullman strike called the attention of Congress
to the gravity of the situation and to the inadequacy of the then
existing legislation to cope with the railway labor problems. During
the year a number of bills dealing with the issue,were proposed. In
June the following bills were introduced in the Fifty-third Congress:
House bill 7351, House bill 7382. In July Senate bill 2185, House
bill 7727, House bill 7765, and House bill 7697 were proposed. Again,
in December a bill of the same kind (H. R. 8124) was suggested. In
addition to the above bills, several attempts were made by Members
of Congress to have amendments made to the original act which had
been passed in 1888.
Most of these bills died in the committees to which they were re
ferred. One, however (H. R. 7727), was reported favorably to the
House by the Committee on Labor, July 30, 1894.4 The bill was
framed in such a way as to carry out the plan which President Cleve
land had advocated in his first message on the subject. A permanent
commission of three men was to be appointed to examine into any
controversy that threatened an interference with interstate commerce.
The committee in its report insisted that the commission should be a
permanent one. The object of the bill was “ simply to secure, as far
as possible, to every person, however humble, a hearing upon the
1
2
8
4

Congressional Record, Vol. XXI, p. 341.
Idem, p. 3054.
Idem, Vol. XXIII, p. 6036.
H. Kept. No. 1343, 53d Cong., 2d sess.

SECOND stage: the

erdman act.

merits of any controversy he may have, and a summary process and
means of securing his rights, whatever they may be, under the laws
as they now exist.” The report stated that the laborers of the coun
try desired such legislation:

The workingmen of the country at this time are asking, and have been asking
for many years heretofore, the establishment of an impartial board for the
arbitration of all controversies that may arise between them and their em
ployers.

No one of these bills provoked much discussion in Congress. But
some of the labor interests affected by the measures expressed their
views of the proposals made. Mr. Debs, editor of the Locomotive
Firemen’s Magazine, opposed the bill which Mr. Blair had introduced
in 1890. This bill provided that the employees could not lawfully
order a strike until they had first proposed to the employers that
the difference be submitted to arbitration, and they must await an
answer for five days before calling the strike. Debs characterized
the bill as “ unfair, one-sided, and unjust, and as such ought to be
opposed by every railroad employee in the land.” 5 He became
very bitter in his opposition to any measure that purported to pro
vide compulsory arbitration. In 1894 he said editorially:

When the people become so degenerate as to passively submit to have their
individuality wiped out, to be herded like cattle, no m atter what plausible argu
ments are used to accomplish their degradation, the time will have arrived to
sing again the old song addressed to the flag:
“ Haul down that flaunting lie.” 6

The editor of the Bailway Conductor in August, 1894, made some
comment on the Tawney bill (H. B. 7382), which had proposed the
compulsory arbitration of railway labor disputes by a committee of
five men to be appointed by the President of the United States.
While he objected to the passage of this particular bill, the editor
expressed himself in favor of some kind of arbitration of these dis
putes. The men, he said, could not afford to strike for any reason
that could not stand arbitrament by an impartial tribunal. And,
according to the opinion expressed, the men would gladly consent to
such an arbitration proceeding.7 Many of the magazines of the time
commented upon the methods of settling railroad labor disputes. As
representative of a large number, the following extract from the
Outlook of July 21, 1894 (p. 90), may be cited:

For ourselves, we think it quite clear that a system which treats the Nation’s
highways as private property and which leaves the owners and the operators
to settle their controversies by a strike is unphilosophical, inconsistent with
national welfare or even national peace, and must give place to something
better.

The remedy proposed by the editor was that the railway employees
be placed in a relationship to the roads similar to that of the seamen
to a ship; that a court be established for the hearing of complaints,
5 Brotherhood of Locomotive Firemen and Enginemen’s Magazine, Vol. XIV, p. 490
(June, 1890).
6 Idem, Vol. XVIII (February, 1894).
7 “ No body of workingmen can afford to strike in support of a cause that would not
stand the test of impartial arbitrament and the great body of them would be the first
to repudiate such a cause. Let them be thoroughly assured of a fair hearing before an
impartial tribunal, able and willing to enforce its decree without fear or favor, and the
day of the strike and the boycott will have passed forever.” (The Railway Conductor,
Vol. XI, p. 417.)

22 USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.
and that, in the event of a failure to accept the award of the court,
the employees could leave the service. But they must leave only in
such a manner as not to cripple transportation. This meant that no
collective action would be tolerated if that action meant a strike.
The employers were either to accept the decision or else surrender the
operation of the roads.
CONGRESSIONAL PRELIMINARIES TO ERDMAN ACT.

Throughout the year 1895 Congress continued to consider measures
for the settlement of railway labor disputes. Three bills were intro
duced in 1895, two of these being reported upon by the committees to
which they had been referred. The bills were House bills 8556 and
8404 (53d Cong.) and House bill 268 (54th Cong.). On February 2,
Representative Erdman, of Pennsylvania, for the Committee on
Labor, submitted a favorable report on House bill 8556.8 This report
showed that the representatives of the five railway brotherhoods all
favored the passage of the proposed law. A communication signed by
the chiefs of the brotherhoods asked the speedy passage of the law,
saying that the nature of the railway business was such that Congress
had jurisdiction in the field.9
A letter from Commissioner of Labor Carroll D. Wright was pre
sented in favor of the passage of the bill.10 Mr. Wright said that
he considered the passage of such a law a step in the right direction.
For several years he had advocated the settlement of industrial con
troversies without resort to violence or even to the strike. But the
arbitration favored by Mr. Wright was to be altogether voluntary.
However, he did recognize the paramountcy of the public interest.
And in the report of the commission which investigated the Pullman
strike, a commission of which Mr. Wright was a member, a consider
able degree of governmental compulsion was advocated.11
In presenting the report to Congress Mr. Erdman gave to Attorney
General Olney the credit for having prepared the original bill. It
contained no provision for compulsion; all the procedure was to be
strictly voluntary upon the part of both parties to the controversy.
In' this bill, for the first time, mediation and conciliation provisions
ranked in importance along with arbitration. A board of mediation
and conciliation was to be organized for the purpose of adjusting
any controversy that might arise. This board was to be composed of
the United States Commissioner of Labor and the chairman of the
Interstate Commerce Commission. Hence the recommendation for
a permanent commission, advocated in the early days by President
Cleveland, was to be carried out in the proposed law.12
On February 26, after some discussion, in which the voluntary
nature of the bill was emphasized, the House of Representatives
8 Congressional Record, Vol. XXVIII, p. 8556.
e “ Recognizing the jurisdiction of Congress over all matters pertaining to interstate
traffic, we favor the enactment of laws by the National Congress * * *. After a
very careful consideration of the entire question, we have no hesitancy in urging, on
the part of your committee, a favorable report on this bill as amended, and hope for
such speedy and favorable action as may be necessary to place this law on the statute
books.” (H. Rept. No. 1754,, 53d Cong., 3d sess.)
10 Idem, p. 4.
11 See pp. 18, 19.
12 Congressional Record, Vol. XXVII, p. 2789 (February, 1895).

23
approved the measure.13 But the bill failed to become a law because
the Senate did not pass it.
The Members of the House of Representatives were not content to
let the matter drop at that time. Therefore, on December 6, 1895,
Mr. Erdman submitted to Congress House bill 268, a bill which in
its essential provisions was a duplicate of the one which had already
received the approval of the House and which had died in the Sen
ate.14 The Committee on Labor rendered a favorable report on the
bill.15 The reasons for the passage of the law, as given in the report
of the former bill, were repeated in this instance. Commissioner
Wright strongly urged the passage of the proposed bill.16 He con
sidered the new bill a decided improvement upon the old one in
that it recognized the officers of organized labor and in that it de
clared it unlawful for the employer to discriminate against an em
ployee because of the membership of the latter in a labor union. The
last proviso, as will appear later, was incorporated in the law of 1898.
But the Federal Supreme Court declared it invalid as an invasion of
the right of free contract guaranteed by the Constitution. The report
of the committee said that th6 representatives of the labor organiza
tions had, after a year’s consideration of the bill, again appeared and
urged its passage.17 The House passed the bill on February 26,
1897. The opposition to its passage was not very strong. One
Member did protest because, he said, this was a step toward the en
slavement of the laboring man.18 But the unqualified indorsement of
the brotherhoods was sufficient to down criticism that otherwise might
have had weight with Congress. This bill, like the preceding one,
failed to pass the Senate. The failure in this instance, though, was
due to the fact that the House was late in passing it and the Senate
did not get to the consideration of it before time for adjournment.
In the Fifty-fifth Congress new bills were introduced. This
time the Senate was as deeply concerned as the House had already
shown itself to be. In the Senate the following bills were proposed:
Senate bill 122, Senate bill 1014, Senate bill 3653, Senate bill 3662.
In the House: House bill 61, House bill 4372. The Committee on
Labor of the House again reported the arbitration bill favorably,
giving the testimony of Commissioner Wright and of the railway
brotherhood leaders as favorable to the proposal.19 This report was
made to accompany House bill 4372. In the Senate the Committee on
Education and Labor reported favorably on Senate bill 3662.20
The report of the Senate Committee adverted to the fact that a
bill similar to this one had already passed the House at two of
its sessions; that it was indorsed by the representatives of the rail
way labor organizations; by Secretary Mosely, of the Interstate
Commerce Commission; by Commissioner Wright, and by others.
The letter of the brotherhood chiefs contained one clause which has
had some significance in the light of their more recent utterances:
second stage : t h e erdman act.

It seems to be thoroughly conceded, also, that legislation by Congress, so as
to provide arbitration in disputes arising from the semipublic duties in which
Congressional Record, Vol. XXVII, p. 2805.
Idem, Vol. XXVIII, p. 49.
H. Kept. No. 1058, 54th Cong., 1st sess.
18Congressional Record, Vol. XXIX, pp. 2388, 2389 (speech of Mr. Erdman).
17 Idem, p. 2388.
18 Idem, p. 2389.
19 H. Kept. No. 454, 55th Cong., 2d sess.
20 S. Rept. No. 591, 55th Cong., 2d sess.

13
14
15

USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

railway men are engaged is not only appropriate, but in line with the policy
of Federal protection and regulation of interstate commerce.21

This is obviously a modification of the attitude formerly main
tained by the brotherhood leaders. The evolution of the labor move
ment in the railway field has caused this modification of position.
PASSAGE OF THE ERDMAN ACT.

The arguments for and against the* passage of the bill providing
for arbitration of disputes* between the railways and their employ
ees had been given at length in the preceding sessions of the House of
Representatives. In this instance, then, the discussion was brief
and {he bill passed on May 5, 1898.22 In the Senate a vigorous op
position developed. Senator Allen, of Nebraska, said that the law
would operate in such a way as to make bond servants of the rail
way employees.23 Senator Elkins, of West Virginia, thought that
the authority to be conferred on the commission should be vested in
the Interstate Commerce Commission and that no new commission
should be created.24 Senator Kyle, of South Dakota, who had charge
of the bill, emphasized the fact that the arbitration provided for was
to be voluntary only.24
In spite of the opposition the bill was approved on May 12 in the
Senate by a vote of 47 to 3.25 As indicated above, House bill 4372
had already passed the House. On May 19 the House, upon the
recommendation of a conference committee, adopted by a vote of 226
to 5 the bill that had passed the Senate.26 On June 1, 1898, the bill
was approved by the President and became law.27
The legislative history of this bill has been given in detail in order
to show that it was no hasty and ill-advised law pushed through Con
gress without having received the consideration due a measure of
such significance. As indicated in the preceding pages this law had
been before Congress, practically in the form in which it was
adopted, for more than three years. During that time all the in
terests affected had ample opportunity to have their case heard on
the merits of the plan proposed. And, as already shown, the rep
resentatives of the railway labor organizations were enthusiastic in.
their approval of the measure.
OPINIONS CONCERNING THE LAW.

It should not be assumed that there was no opposition outside
Congress to the passage of the law in question. The American Fed
eration of Labor brought all the pressure it could in order to defeat
the bill. In the annual convention of 1897 the Federation protested
against its passage.28 Mr. Gompers, in an editorial in the American
Federationist, insisted that the law would be a mistake. He pub
lished a letter from counsel containing the following statement:
“ We regard the bill as dangerous in its tendencies to the extreme in
21
22
23
24
25
20
27
28

S. Rept. No. 591, 55th Cong., 2d sess., p. 3.
Congressional Record, Vol. XXXI, p. 4649.
Idem, p. 4790.
Idem, pp. 4800, 4801.
Idem, p. 4858.
Idem, p. 5053.
Idem, p. 5566.
American Federationist, Vol. I ll, p. 258 (February, 1897).

25
that it constitutes an attempt to wed the laborer to his employment,
and the nearest' analogy which occurs to us is that of the serfs who
are understood to be bought and sold with the land upon which they
live.” 2829
Mr. Gompers, testifying before a committee of the House of Rep
resentatives in January, 1917, said that his opposition and that of
Mr. Andrew Furuseth were responsible for the elimination of the
seamen from the operation of the Erdman law. He finally withdrew
his opposition only because the railway men were anxious to have it
enacted.30 Repeatedly in the annual conventions of the American
Federation of Labor and in the editorial columns of the Federationist
Mr. Gompers protested against the intervention of the Government
in the field of labor disputes. In an address to the International
Federation of Trade-Unions, however, he commented on the Newlands law, a law in its essentials like the Erdman Act:
second stage : th e erdman act.

The voluntary arbitration act for employees on railroads was amended by
providing for a permanent office of Arbitration and Conciliation Board. The
board has already been helpful in the adjustment of disputes between rail
road managers and the brotherhoods of railroad employees, invariably with
beneficial results to the workers.31

The Railroad Gazette, representing the point of view of the rail
way managers, expressed some doubt as to the good results to come
from such a law. Its doubt was due to the fact that only one of
the, parties to the controversies was responsible; that is, in a posi
tion such that an award could be enforced against it. Only involun
tary servitude could force the laborers to accept the decision of the
board, and such servitude was contrary to the Federal Constitution.32
In a subsequent issue the Gazette said that perhaps no good would
come from the law, but that its passage was an encouraging sign of
an increasing public interest in grappling with the problem of labor
disturbances on the railroads.33
PROVISIONS OF THE LAW.

The Erdman law,34 so called because Mr. Erdman had charge of
the bill, like the law of 1888, contained two principal parts. It will
be recalled that the earlier law provided for arbitration and also
for investigation by a Federal board. In the Erdman Act the in
vestigation by the Federal board was not provided for. Under its
terms no investigation of the Chicago Pullman strike could have
been made. But the law of 1888 had made no provision for media
tion and conciliation. This was the new phase incorporated in the
Erdman law. While the thought of the time seems to have cen
tered mainly upon the arbitration features of the law, subsequent
events, as will appear presently, proved that the mediation and con28 Mr. Gompers said : “ The Erdman administration bill, so called, is a piece of legis
lation destructive of the best interests of labor, ruinous of the liberties of our people; a
step in the direction for the creation of an autocracy or an empire on the one side
and a class of slaves or serfs on the other. Against such a condition of the affairs the
whole sentiment * * * the entire interest of wage workers should be directed ”
(American Federationist, Vol. I ll, pp. 249-252, 259 (February, 1897).
30 U. S. Congress.
Committee on Interstate and Foreign Commerce. Hearings on
H. R. 19730, 64th Cong., 2d sess., p. 96.
31 American Federationist, Vol. XXII, p. 118 (February, 1915).
32 The Railroad Gazette, Vol. XXX, p. 343 (May 13, 1898).
33 Idem, p. 376.
34 30 Stat., 55th Cong., ch. 370.

USE o r FEDERAL POWER IN RAILWAY LABOR DISPUTES.

ciliation clauses of the law were to be the more important in the
actual operation of the act.
The Erdman Act applied only to the interruption in which were in
volved railroads and their employees engaged in the operation of
trains in interstate commerce. When such interference of traffic was
threatened because of differences arising between employers and em
ployees it was to be the duty of the chairman of the Interstate Com
merce Commission and of the United States Commissioner of Labor,
upon application of either party to the controversy, to offer their
services in an effort to bring about an amicable adjustment of the
trouble through mediation and conciliation. Failing in this, they
were to try to bring about arbitration proceedings in accordance with
the act. Subsequently, when Judge Knapp of the Interstate Com
merce Commission was made a member of the commerce court, the
law was amended in such manner as to make it possible to retain
Judge Knapp as a mediator.35 The Erdman Act made no provision
for the taking of the initiative by the commissioners. In this respect
it was weaker than the earlier law under the terms of which the Presi
dent was authorized to investigate any controversy he thought it de
sirable to look into.
The entire act contained, 12 sections, only one of which dealt with
mediation and conciliation. Yet, in the operation of the law, this
one section proved of more significance than did all the other sections
combined, notwithstanding the fact that at the time of the passage
of the law this section was generally considered the less important
part of the legislation.
In the event of the acceptance of arbitration under the law each
side to the controversy was to select one arbitrator and these two were
to select the third or neutral arbitrator. If they could not agree on
this third man within a period of five days from their own appoint
ment, this member was to be appointed by the chairman of the Inter
state Commerce Commission and the Commissioner of Labor. The
agreement to arbitrate was to be signed by both sides and was to
contain the following provisions:
1. The board was to begin its sittings within 10 days from the time
of appointment of the third arbitrator and was to file an award
within 30 days from the commencement of hearings. Pending the
handing down of the decision the existing status should be maintained
by the contestants, but no individual was to be forced to remain in
the service against his will.
2. The award and a record of all proceedings were to be filed with
the Circuit Court of the United States in the district in which the
controversy occurred, and this decision was to be conclusive unless set
aside for error of law.
3. Courts of equity were to enforce the award, provided that no
individual could be forced to work against his will.
4. Employees dissatisfied with the award were not to leave the
service within a period of 3 months unless they gave written notice
30 days before leaving. A like limitation was placed on the employer
in the dismissal of the employees.
5. The award was to be in effect for one year from the rendering
of the decision of the arbitration board.
35

36 Stat., 61st Cong., cli. 285, p. 1397.

se c o n d s t a g e : t h e e r d m a n a c t .

Within 10 days from the filing of the report with the circuit court
the award was to go into effect.
The necessary power in the administration of oaths, the subpoena
ing of witnesses, the taking of testimony, etc., was given the board
of arbitration.
Unorganized employees, if they satisfied the board of arbitration
that they represented a majority of the employees involved in the
controversy, were to be permitted to come under the operation of
the law.
Pending the arbitration proceedings no employer could dismiss an
employee, excepting for certain specified reasons; and no employees
could combine to leave the service of the employer. For a period of
three months after the award neither side to the controversy could
terminate the relationship without 30 days5notice of an intention to
that effect.
Provision was made in the law for employees working on railroads
in the hands of Federal receiverships. Such employees could ap
peal to the Federal courts as to the terms of employment, etc.
Perhaps the one provision of the law that was most heartily ap
proved by the employees was that contained in section 10, which pro
vided that no employer could exact unjust terms of employment from
the worker upon the entrance of the latter into the service—such
terms as an agreement not to belong to a labor union, to contribute
to an insurance fund, etc. This part of the law was to be the sub
ject of court litigation, the result of which w,as to cause the laboring
man to discount the law.
THE LAW IN THE COURTS.
C A S E S D E C ID E D .

Very soon after the Erdman law was put in operation the courts
were called upon to pass upon the validity of the section which made
it illegal to exact of the workingman a promise not to belong to a
labor union, section 10 of the law. The first court adjudication was
that of United States v. Scott,36 a Kentucky case, decided in October,
1906. Scott, a train dispatcher of the Louisville & Nashville Rail
road, threatened telegraphers with the loss of their positions if they
joined the Order of Railroad Telegraphers. The defendant in this
case contended that section 10 of the Erdman act was unconstitu
tional. ^Judge Evans of the district court held that section invalid.
The judge went into a lengthy discussion to show that the section
in question was class discrimination:

To forbid discriminations against union labor, while discriminations against
others, if made, are allowed, would not seem to be a very palpable or conspicu
ous example of equal or exact justice to all, and might be open to the criticism
that it is class legislation.

The judge said, however, that he did not base his decision on the
discrimination in the section, but on the broader ground that this
was really not a regulation of interstate commerce. It was only
a regulation of certain rights of the employer to choose his own
servants regardless of whether they were employed in interstate com
86 148 Fed. 431.

28 USE OF. FEDERAL POWER IN RAILWAY LABOR DISPUTES.
merce or otherwise; and the section was so broad in its scope that it
would apply to employees engaged in intrastate commerce as well
as to those engaged in interstate commerce. For the latter part of
the opinion he cited the precedent of the Trade-Mark cases.
In November, 1906, the Order of Railroad Telegraphers asked
Judge Evans for an injunction to prevent the use of intimidation
by the Louisville & Nashville Railroad Co. This railroad attempted
to prevent its employees from joining the Order of Telegraphers.37
Judge Evans denied the petition on the ground that, regardless of
the right of action under the law, the plaintiff was not a party to the
controversy and therefore had no right to benefit from the operation
of the law. The railroad and the employees alone, not the Order
of Telegraphers, Judge Evans said, were parties to this controversy.
A more important case, as it went to the Federal Supreme Court
for final adjudication, arose in the Eastern District of Kentucky in
1907.38 The contention in this case was that Adair, a master me
chanic in the employ of the Louisville & Nashville Railroad Co.,
had discriminated against a man named Coppage. He had done this
by threatening to discharge, and later by discharging, Coppage be
cause of the membership of the latter in a labor union. The case
involved the validity of section 10 of the law.
Judge Cochran upheld the section in question. He denied the
three main contentions of the railroad: That the statute was un
constitutional as an interference with private rights; that the law
applied to intrastate commerce and was therefore without the scope
of the powers of Congress; and that, it was a denial of the equal pro
tection clause of the Constitution.
A person engaged in a lawful private business and a common carrier engaged
in interstate commerce occupy entirely different positions. The former has a
fundamental right upon his choice to engage in and carry on such business.
The latter has no such right. It exercises a public function and has no right
to exercise it except by consent of the National Government, express or
implied.

As to the second objection, the judge said that it was altogether
unlikely that an employee in intrastate commerce had nothing to do
with the movement of goods over the road as a part of interstate
commerce.
That there was class discrimination he said was no ground for
declaring the law invalid, because there was nothing in the Consti
tution forbidding class discrimination by the Federal Government.
But, aside from that, the classification made here was reasonable and
was based on sound public policy.
Upon appeal to the Federal Supreme Court the decision in the
Adair case was reversed.39 Mr. Justice Harlan held that the section in
question was unconstitutional. He said:

In our opinion that section, in the particular mentioned, is an invasion of
the personal liberty as well as the right of property guaranteed by that amend
ment [fifth]. Such liberty and right embraces the right to make contracts
for the sale of one’s own labor; each right, however, being subject to the
fundamental condition that no contract, whatever its subject matter, can be
maintained which the law, upon reasonable grounds, forbids as inconsistent
37
88
39

Order of Railroad Telegraphers v. L. & N. R. R., f48 Fed. 437.
United States v. Adair, 152 Fed. 737.
Adair v. United States, 208 U. S. 161.

second st a g e : t h e erdm an act.

with the public interests or as hurtful to the public order or as detrimental
to the common good.
It was the right of the defendant to prescribe the terms upon which the
services of Coppage would be accepted, and it was the right of Coppage to
become or not, as he chose, an employee of the railroad company on the terms
offered to him.
In all such particulars the employer and the employee have equality of right,
and any legislation that disturbs that equality is an arbitrary interference
with the liberty of contract which no Government can legally justify in a free
land.
* * * we hold that there is no such connection between interstate com
merce and membership in a labor organization as to authorize Congress to make
it a crime against the United States for an agent of an interstate carrier to
discharge an employee because of such membership on his part.

Mr. Justice McKenna and Mr. Justice Holmes each wrote a dissent
ing opinion in this case, declaring it to be their belief that there was
such a connection between this legislation and interstate commerce
as to justify Congress in making it illegal for an agent of an inter
state carrier to discharge an employee for membership in a labor
organization. Mr. Justice Holmes said:
It can not be doubted that to prevent strikes and, so far as possible, to foster
its scheme of arbitration it might be deemed by Congress an important point
of policy, and, I think, it impossible to say that Congress might not reasonably
think the provision in question would help a good deal to carry its policy along.

Even according to the decision of the court there is an open gap
through which a different conclusion might be reached without in
volving the court in any inconsistency. Mr. Justice Harlan, as noted,
did not see any connection between interstate commerce and the
section of the law under litigation. But, if the denial of member
ship in labor organization promotes strikes, then there is obviously
a connection. Public opinion may conceivably force a recognition
of this relationship. The justice also said that private rights and
private contracts should be interfered with only upon grounds of
public policy. But the prevention of strikes would seem safely
within the range of things that promote the general well-being. It
is a question whether the court, if passing upon a similar case to-day,
would uphold the decision of Mr. Justice Marian or accept the opinion
expressed by Mr, Justice Holmes in his dissenting opinion in this case.
L A B O R ’S V IE W S O N D E C IS IO N S .

The decision in the Adair case fell as a heavy blow to organized
labor. This was the one section of the Erdman Act to which they
had attached the most importance and from which they had antici
pated the best results. Now, that the court held this invalid, the
brotherhood leaders felt that this denied to them the essential pro
tection given in the law. In its March, 1908, issue the Railroad Train
man expressed the disappointment of labor in this respect.40 The
40
“ Another stinging decision has been given by the Supreme Court in which ‘ repug
nant to the Constitution ’ is the leading feature.
“ Just what law intended to take care of the people against the unfairness! of their
employers that is not repugnant to the Constitution remains; to be discovered. The Con
stitution is the most sensitive part of our nationaf anatomy, always on nervous edge to
see if it is not being insulted or offended, and it usually is, for the eyes of the jurists
who look to preserving it from insult usually see where the sacred document has been,
wronged.”
“ The employee must abandon his only way of protecting himself against the unfair
ness of his employer. The decision against the membership of a man in his labor union
is ample evidence of that.”

USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

implication in the editorial was that any measure for the purpose of
benefiting labor would be held unconstitutional by the courts. It
sounded a note of despair for the employees.
The labor leaders have insisted that there is a fundamental differ
ence in bargaining power between the employer and the employee ;
that, even though there may be a legal and theoretical equality, in
practice there may be another story. They have held that the em
ployer is not dependent upon the particular laborer, whereas the
particular laborer may be dependent upon some one employer, and
this difference, which to the worker seems essential and fundamental,
did not get the recognition of the court. At least, this difference did
not seem to the court to be of such importance as to warrant the ma
jority in upholding the law upon such a basis.
APPLICATION OF THE ERDMAN ACT.
RAILWAY LABOR ORGANIZATIONS.

Before discussing the operation of the Erdman Act a word should
be said concerning the four railway brotherhoods that were parties
to the disputes adjusted under the terms of the law.
The first of the brotherhoods to be organized was that of the Loco
motive Engineers, formed in 1863. The main object of the organiza
tion was to improve the character of the members. However, almost
from the founding of the organization it became instrumental in se
curing better working conditions for its membership. This was ac
complished in the main through the agency of collective bargaining.41
This organization is popularly considered the most conservative of
the labor groups in the country. Its members are usually of a high
type, so much so that the union is commonly known as the aristocracy
in the labor world.
Next in point of time of organization came the Order of Railway
Conductors. This union was formed in 1868 and was known as the
Conductors’ Brotherhood. Later the name was changed to that of
the Order of Railway Conductors of America.42 About 1890 the order
began to become active in the way of getting better working condi
tions and higher wages for its members.43
In 1873 the Brotherhood of Locomotive Firemen and Enginemen
was organized in New York State. It had as it purpose the promotion
of the interests of its members through mutual association and assist
ance, and the improvement of working conditions in general. Its
motto is indicative of the aims and purposes of the organization:
“ Protection, charity, sobriety, and industry.” 44
The fourth of the lame railway labor brotherhoods in the train
service was that of the Railroad Trainmen, established in 1883. In
its purposes and aims this order was like that of the Firemen and
Enginemen, noted above.45
41 Testimony of President Arthur.
(Report of the Industrial Commission, Vol. IV, pp.
116-118. 1900.)
42 Order of Railway Conductors. Constitutions, Statutes, etc., p. 2 (1916).
48 Statement of Mr. Clark.
(Report of the Industrial Commission, Vol. IV, p. 110-113.
1900.)
44 Brotherhood of Locomotive Firemen and Enginemen.
Constitution, etc., pp. 2, 3
(1916).

*5 Brotherhood of Railroad Trainmen, Constitution and General Rules, pp. 1, 2 (1916).

second sta g e : t h e erdm an act.

SETTLEMENTS UNDER THE LAW.46

For eight and a half years after its passage the use of the Erdman
Act was attempted only once. And this resulted in a complete fail
ure. The first attempt to use the law came in a movement on the
part of the trainmen and the conductors in and about Pittsburgh in
1899. Mr. P. H. Morrissey, grand master of the Brotherhood of
Railroad Trainmen, requested mediation by the commission. The
railroads refused to enter into mediation proceedings, and thus the
first attempt to use the law ended in failure.
No further effort was made to use the act until December, 1906.
In a controversy with the firemen on the Southern Pacific Railroad
the company, after a strike had been ordered for the following day,
requested mediation by Judge Knapp and Commissioner Neill.
From that time until the passage of the Newlands law in 1913
61 cases were settled under the Erdman Act. Twenty-six of these
cases were adjusted through mediation, 10 by mediation and arbi
tration and six by arbitration alone.
Of the remaining 19 cases some were settled without the inter
vention of the mediators but after their aid had been invoked, and
others were cases in which the second party refused to accept the
mediation by this commission.47
In some cases both parties to the controversy asked the aid of the
mediators. Thus, in all, 61 requests for mediation were made to the
board. The cases ranged in importance from those in which less
than 100 employees were involved to those with more than 40,000
employees in one controversy. In the year 1910 there were nearly
80,000 employees and about 300,000 miles of road involved in 16 cases.
The total of 61 cases affected more than 680,000 miles of trackage
and over 250^000 employees. From 1906 to 1911 there were only
4 cases in which mediation was invoked directly and only 8 had to
go to arbitration for a settlement. And even in those 8 cases only
a part of the issues were settled by arbitration; through mediation
and conciliation the contestants had already agreed upon most of the
points, of difference between them and had submitted to arbitration
only those on which they could not reach an agreement.
There was never a repudiation of an award made by an arbitration
board under the Erdman law. And in only one case was there an
appeal to the courts from the decision of the arbitrators. In that
case the employees appealed, filing exceptions to only a part of the
award. They requested that the other parts of the decision be put
into operation as rendered.
The court, however, took the position that no part of the award
could be enforced pending the adjudication of the controverted points.
After four months the court handed down its decision in which some
of the points were favorable to the men and other points were in
favor of the railroad. Thereupon the employer appealed and the case
was not settled a year after the original award had been handed
down by the board of arbitration. Both parties had become exas
perated by this time and reopened the negotiations with each other.
46 Except where otherwise noted, data in this section are from U. S. Bureau of Labor
Bui. No. 98, pp. 1-63.
47 U .

S. C o m m issio n e r o f M e d ia tio n a n d C o n c ilia tio n . A n n u a l R e p o r t. 1 9 2 0 ,

S2 USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.
In this way they finally reached an agreement, but 14 months had
elapsed since the decision of the arbitration tribunal. This single
instance, Commissioner Neill said, proved that the provision of the
law granting an appeal to the courts was of no real value. And, in
the majority of the cases arbitrated subsequently to this experience,
the parties agreed beforehand to waive the right of appeal to the
courts.
It has already been mentioned that for a period of more than
eight years from the passage of the law no proceedings, excepting
that of the one case in which there was a failure, were held under
the act. Judge Knapp explains this failure to use the act upon two
grounds: First, the years following the passage of the law were years
of general prosperity, a period when strikes are not to be expected;
second, the change was in part due to the great advance in public
sentiment which demanded some sort of peaceable settlement of
such controversies.48
The application for mediation under the Erdman law was usually
made by the employees in those cases in which the number of men
involved was small and the railroad mileage short. This •Com
missioner Neill attributed to the fact that in such cases the men
believed that the railroads would be able to defeat them in the event
of a strike. However, in the large movements, cases in which the men
had the advantage and in which the employers could ill afford to run
the risk incident to a stoppage by the employees, the management as
a rule applied for mediation49
PROCEDURE UNDER THE LAW.

In view of the relative importance of mediation under the law
something should be said of the procedure adopted. The mediators
refused to intervene in any case until they were satisfied that the
contending parties had ‘exhausted all their own resources to reach an
agreement.
If the application were made before the respective interests had
done all within their power to effect a settlement, as it appeared to
the mediators, Judge Knapp and Commissioner Neill refused to con
sider the dispute. In such cases they suggested to the contesting
parties that they continue their own efforts toward an agreement.50
Had the mediators followed any other course it is likely that they
would have been overwhelmed with insignificant matters that could
better have been adjusted without outside intervention. Then, too,
the action of the mediators was all the more effective because of the
relative infrequency with which it was put to use.
Commissioner Neill and Judge Knapp adopted early in their ad
ministration of the law a method of procedure which, as the results
show, was a happy one. The contending representatives were never
brought together until they had made such concessions to the me
diators that the difference could be adjusted. Commissioner Neill
and Judge Knapp made it a practice to meet the representatives of
each side separately and to find out what was the best that each
48 National Association of Railway Commissioners. Proceedings of the Twentieth Annual
Convention, p. 38 (October, 1908).
49 U. S. Congress.
House of Representatives. Committee on Interstate and Foreign
Commerce. Hearings * * * H, R, 22Q12, pp. 24, 25 (1912).
50 Idem, p. 35.

se c o n d s t a g e : t h e e r d m a n a c t .

would concede. If the proposals from the two sides were such as to
make agreement possible, the commissioners would draw up a plan
to be accepted by the disputants. However, as a rule, several meet
ings were required before things came to the point that the mediators
could make a proposition to both sides. Commissioner Neill said
that this procedure was responsible, in large measure, for the success
of the mediation under the law. In the event of a failure to reach
an agreement neither side knew what concessions the other side had
been willing to make. Then, when the case went to arbitration, it
would not be prejudiced for or against either side because of the
points already yielded in mediation. Neither side could use as a
lever the concessions already made by the other.5152
Something of the difficulty of operating the law can be gathered
from the testimony of Commissioner Neill. This testimony also
shows what a tremendous strain the mediators were laboring under
in the negotiations:

I have sat for 14 days, beginning before 10 o’clock every morning and never
concluding the last conference until after midnight any day, including both Sun
days, and on more than one night not getting through until 3 or 4 o’clock the
following morning. I have sat through one conference beginning at u o’clock
in the morning and eating sandwiches during the conferences, and adjourn
ing at 4 o’clock in the morning, and that at the end of a 10-day siege of it. Not
only is there the physical strain, but in many cases * * * and I remember
one case particularly in which, for four successive days, some representative of
the organizations was sitting in a room across the hall from mine in the hotel
with a strike order written on a telegram and signed by the head of the organi
zation calling a strike, with the instruction that the moment he received notice
that the negotiations had failed the strike was to be put on the wire.62

The testimony of Judge Knapp is to the same effect:

* * * But on more than one occasion it has been a nerve-racking expe
rience for days and nights—day after day and long into the night; and I have
sat around the table with a committee of men, discussing the question for days,
when I feared that within the next 60 minutes every railroad in a large area
would be tied up. No one who has not had that nerve-racking experience and
felt the tremendous responsibility, because the public interests are greatly in
volved, can realize the satisfaction which comes when a settlement is reached,
a settlement with good feelings on both sides and which restores a more
friendly relation between the two parties than before existed for a long time.53

A valid objection to this kind of settlement is that it is based on
what seems to be the easier plan rather than on the merits of the con
troversy; expediency rather than justice is the ultimate standard or
basis for settlement. Judge Knapp was conscious of this weakness
in the administration of the law. But he was so deeply concerned to
protect the public interests in jeopardy that he considered it de
fensible to inflict a little of hardship in some instances if this be
came necessary. In other words, the individual should be willing
to suffer for the common good in a measurable degree.54
51 U. S. Bureau of Labor Bui. No. 98, pp. 13, 14.
52 U. S. Congress.
House of Representatives. Committee on Interstate and Foreign
Commerce. Hearings! on * * * H. R. 22012, pp. 22, 23 (1912).
53 Idem, p. 15.
54 “ The most that we can do is to aim at a fair adjustment and in protection of the
large interests of the public bring the parties together on the best terms possible, which
will end the controversy without delay. The commanding interest which we have in the
controversy is that it shall be settled and ended. The dangers attendant upon con
troversy are more serious as affecting public interests than the abstract rights of the
contending parties. When large public interests are involved, good citizens may properly
be called upon for concessions of their purely private rights in the public interests.”
(Judge Knapp, in Proceedings of Twentieth Annual Convention of National Association
of Railway Commissioners, p. 39. 1908).

79094°—22----- 3

USE OE FEDERAL POWER IN RAILWAY LABOR DISPUTES,

But whatever may have been the objections to the action of Messrs.
Knapp and Neill, they succeeded in preventing many strikes that
otherwise would have come. In no case did a strike ever follow a
dispute m which they had intervened.55 And there was no instance
in which the disappointed party to an arbitration award failed to
comply with the decision of the board for the period agreed upon.56
In the arbitrations under the act the most difficult part was the
selection of the neutral arbitrators. Although the law provided that
the two representatives of the contestants should select the third
member of the board within a period of five days from their own
appointment, Commissioner Neill said there had been no case in
which the mediators had not been called upon to select this third
arbitrator. The two parties could not agree upon the neutral arbi
trator within the five-day period prescribed by law.57 It was very
difficult for the mediators to select this third arbitrator. Dr. Neill
said he had traveled over the country and had spent weeks in the
effort to find a satisfactory man.58
Perhaps the greatest improvement made in the Erdman law as
compared with the statute of 1888 was the provision made for the
permanent commission of mediation and conciliation. In the law of
1888 the only commission provided for was that of the special in
vestigating board which was temporary and ceased to exist upon the
filing of its report in the particular controversy investigated by it.
In the Erdman act, however, Commissioner Neill and Judge Knapp
were able to make use of their experience in one controversy in the
settlement of subsequent ones. In this way they acquired a high
degree of skill and technique in the handling of labor disputes.
They were easily able to separate the wheat from the chaff in the
demands made by each, of the parties to a controversy, to know just
how much each side would concede and what was demanded for the
purpose of bargaining and higgling with a view to getting something
by compromise.
The members of the railroad brotherhood organizations frequently
expressed their confidence in the members of the commission.59 The
55
Statement by Judge Knapp, in Mediation, conciliation, and arbitration in contro
versies between railway employers and their employees; S. Kept. No. 72, 63d Cong.,
1st sess., p. 36.
58 Idem, p. 30.
57 U. S. Congress.
House of Representatives. Committee on Interstate and Foreign
Commerce. Hearings on * * * H. R. 22012, p. 13 (1912).
58 “ I have traveled from one end of the country to the other two or three times and
probably interviewed five or six men, to be turned down by each one of them. I have
spent six weeks in trying to select arbitrators and nearly four-fifths of that time I was
trying to get a third arbitrator and was unable to find a man.” (Idem, p. 20.)
59 Mr. Garretson, president of the Order of Railway Conductors, said, in 1913 :
“ The success or failure of any act of this character w ill always depend upon the
personality of the men who administer it, and unless these men develop the qualities
that are necessary for successfully acting the part of mediators the act is not worth
the ink that it took to print it.”
“ My own connection with the men who have acted as administrators has grown up
under the application of this act, and it is the personal qualities of those men that have
contributed so largely, first, to successful settlement, where the mediator is able to make
a successful settlement on account of the peaceful qualities that invoke confidence— abso
lute— on both parties, because mediation is absolutely founded on good faith and confidence,
and no other features will ever make it a success.” (Hearings on S. 2517, S. Rept. No.
72, 63d Cong., 1st sess., pp. 43, 44.)
Mr. Stone, president of the Brotherhood of Locomotive Engineers, offered his testimony :
“•If we could always be assured that Judge Knapp and Dr. Neill would be the two
men who meditate and pass on these cases,, I would not care where you put it [the
office of mediation].” (Idem, p. 76.)

SECOND STAGE: THE ERDMAN ACT.

managers of the railroads also indicated gratification at the adminis
tration of the law by Messrs. Knapp and Neill.60
DEFECTS OF THE LAW.

So far all the discussion in this* paper would indicate that the Erdman law was an unqualified success. That, though, would be putting
the case too strongly. From time to time many suggestions were
made for the improvement of the law. The number of arbitrators
under the law, it was said, was too small. Questions of such moment
should not be intrusted to the decision of one neutral arbitrator. It
was held that the public should have a representation on the board
that was larger than that of either party to the dispute. Objections
were made to the provision for a court review of the award of the arbi
tration boards. It was suggested that the mediation and conciliation
commission should be composed of men who could devote their entire
time and energy to the problem. The mediators, it was said, should
be authorized to take the initiative in the work of mediation, and not
have to wait supinely until called into the controversy, etc. All
these proposed changes and modifications will be discussed in the
following chapter in connection with the legislative developments
from the time of the passage of the Erdman law until the enactment
of the Newlands law, which superseded it.
CONCERTED MOVEMENTS.

Before leaving the discussion of the Erdman Act, however, some
consideration should be given the new development in the method of
handling the labor situation by the railway labor brotherhoods. This
device, because of the number of employees and the extent of the
railway mileage involved, came to be known as the “ concerted move
ment.” The employees had learned through experience that they
had a better chance of winning if they grouped themselves together
on a number of roads and presented their demands as a unit to the
managers. The first of the concerted movements which the United
States Mediation and Conciliation Board had to handle was that of
the conductors and trainmen in the western territory. This case
involved 42,500 employees and 101,500 miles of railroad. On March
28, 1907, the railroad companies applied to the Mediation Board for
mediation. The conference began in Chicago on March 30, and on
August 4 a settlement was effected by the Government officials.61
Not until 1909 was there another important concerted movement
by the railway employees. As a result of a controversy between the
railways of the West and the firemen and enginemen, the railways
appealed to the board for intervention, with a view to a settlement
of the difficulty. Here 26,000 men and 110,000 miles of road were
affected. On March 17 the board began proceedings in Chicago, and
on March 23, after mediation and a settlement of some of the con
60 Vice President Atterbury, of the Pennsylvania Railroad, said :
“ The Erdman Act has been successful for the last five or six years, but it is due to
the personal equation of Messrs. Knapp and Neill. Their handling' of all the contentions
that have been submitted to them has been of such an impartial and fair character that
they have gained the respect not only of the railroads, but of the employees of the
railroads.” (Idem, p. 53.)
61 Commissioner Neill, in Bureau of Labor Bui. No. 98, case 4, pp. 44, 45,

USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

troversy by mediation and the rest of it by arbitration, the settlement
was made.62
The men were so much pleased with the result of this movement
that the conductors and trainmen of the East decided to launch a
concerted movement in the hope of attaining a like result. The
railroad managers, however, refuse*d to join the concerted action and
meet the men as a body. Thereupon the men decided to center their
efforts on one road at a time, in this manner covering the entire ter
ritory ultimately. The Baltimore & Ohio Railroad was selected as
the road on which to make a beginning.63 The railroad'asked the
mediation board to intervene. On March 11 a settlement was
effected through mediation.64 The New Haven and the Boston &
Maine Railroads settled on the basis agreed upon with the Balti
more & Ohio.65 The next case involved the New York Central. This
road made three propositions to the men: That the Federal medi
ators decide the controversy; that it be referred to the chairman of
the chambers of commerce in the cities through which the road
assed; that it be submitted to the Public Service Commission of
ew York State. The men refused to accept any one of these three
proposals. Finally it was arranged that the whoje matter should be
referred to Mr. E. E. Clark, chairman of the Interstate Commerce
Commission, and Mr. P. H. Morrissey.66 The road accepted this
plan as the only means for warding off what to the railroad would
have been a less desirable situation.
In the meantime the Lackawanna, the Delaware & Hudson, the
Erie, and other railroads had agreed to abide by the decision ren
dered in the New York Central case. The result of this settlement
was to standardize and to give to the men concerned practically the
award that had been rendered in the Baltimore & Ohio case.67 Thus
the employees finally secured by action with the separate roads what
they had planned to get by dealing with all the roads of the section
as a unit.
Another concerted movement was undertaken by the engineers of
the western roads in 1910, 24,000 engineers and 115,000 miles of track
being involved in this controversy. The railroads applied for medi
ation, and on December 17 negotiations were begun in Chicago.
This resulted in a settlement by mediation on December 24.68
Probably the most interesting of the concerted movements of the
period was the one begun by the Brotherhood of Locomotive Engi
neers on the 52 railroads of the East in the spring of 1912.* The
parties concerned agreed to submit the dispute to a new type of arbi
tration board. This board was to consist of seven members, two of
whom should represent the respective interests to the controversy.
These two were to choose five neutral arbitrators. Should they fail
within 15 days from the time of their appointment to agree upon the
neutral members, these five were to be appointed by the Chief Jus
tice of the Federal Supreme Court, the presiding judge of the Com-

02 Commissioner Neill, in Bureau of Labor Bui. No. 98, case 29, pp. 50, 51.
68
Locomotive Engineers’ Arbitration, by W. J. Cunningham, in Quarterly Journal of
Economics,, Vol. XX V il, pp. 274-276 (Feb., 1913).
** Commissioner Neill, in Bureau of Labor Bui. No. 98, case 28, pp. 50, 51.
65 Locomotive Engineers’ Arbitration, by W. J. Cunningham, in Quarterly Journal of
Economics, Vol. XXVII, p, 276.
66 Idem, pp. 276, 277.
67 Idem, p. 277.
68 Commissioner Neill, in Bureau of Labor Bui. No, 98, case 40, pp. 54, 55.

SECOND stage : the

erdman act.

merce Court, and the United States Commissioner of Labor. In
fact, they were appointed in the latter manner.
This arbitration was the first one in which the public had received
such a large representation on the board. Because of its report and
the novel recommendations contained therein this was one of the
most important arbitrations of railway labor disputes in the history
of the country. Some of the recommendations and conclusions of
the board will be considered in the following chapter. The award
was rendered on November 2,1912.
Early in 1912 the firemen and enginemen of the East made de
mands on the railroads. The roads were the same ones as those
on which arbitration was had with the engineers. In all there
were 67,000 miles of track, on which was hauled approximately
40 per cent of all the traffic of the country. The roads proposed that
they arbitrate the matter in the manner in which the engineers had
done. To this the men objected on the ground that the neutral arbi
trators knew nothing about the technical side of railroading. The
employees insisted upon arbitration under the Erdman law. The
managers objected that this method gave too much power to the one
neutral arbitrator. When it looked as though a strike would be
inevitable the roads yielded and agreed to arbitration under the
Erdman law.69 The roads appointed W. W. Atterbury, of Philadel
phia, as their representative, and the employees selected Albert
Phillips, of Sacramento.70 The proceedings began on March 10, in
New York City, and lasted until April 5. On April 23 the arbi
trators handed down an award71 which was in the nature of a com
promise.
This was the last of the arbitrations effected under the Erdman
Act. The series of arbitrations has been given in some detail to
show that the scope of the act was wide and that some significant
results were reached through its operation. In another connection
some of these arbitrations will be discussed to show how sentiment
had changed with reference to arbitration and the kind of arbitral
tion desired. This, however, belongs to the next chapter.
In studying the operation of the Erdman Act one can not escape
the conclusion that it marked a great step forward in the evolution of
a sane method for the settlement of railway labor troubles in the
United States. That it was a perfect piece of legislation was not
believed even by its most ardent advocates. In fact, the law adapted
to one period would not, perhaps, have suited a later period in which
the conditions had changed radically. But for the period in which
this law was on the statute books it probably met the needs of
the time as well asi any sort of legislation that might have been
enacted at that time could have done. True, an act of this kind may
not be adequate any longer to adjust the controversies on the rail
roads. But it has helped greatly in marking out the way that was to
follow its operation, and there are suggestions in the act which can
well serve as a guide in shaping legislation in the future.
N o te .—The report of the United States Board of Mediation and Conciliation
(S. Doc. No. 493, 64th Cong., 2d sess. (1916)), contains a brief history and a
description of the arbitrations under the Erdman law.

69 L. W. Hatch, in American Yearbook, 1913, p. 415.
70 Proceedings, Arbitration Between the Eastern Railroads and (he Brotherhood of
Locomotive Firemen and Enginemen, Vol. I, p. 3 (1913).
71 Idem, Vol. V.

CHAPTER IV.—THIRD STAGE: THE NEWLANDS ACT.
DEVELOPMENT OF LEGISLATIVE CONSIDERATION AND VIEWS
HELD AFTER PASSAGE OF LAW.

The third stage in the development of Federal power in the settle
ment of railway labor disputes was reached in the passage of the
Newlands law on July 15, 1913.1 Before going into a discussion of
this law as such it will be well to note what consideration had been
given to this question since the passage of the Erdman Act. Both
in Congress and in the world at large a great deal of discussion pre
ceded the passage of the law of 1913.
As early as December 6,1899, a bill concerning carriers engaged in
interstate commerce and their employees was introduced in the
Senate.2 This bill, however, did not get any consideration in the
Senate, having died in the committee to which it was referred.
In 1900 several evidences pointed to the popularity of the idea of
arbitration. The platform of the Democratic Party for that year
contained a plank m which arbitration of railway labor disputes was
advocated. And it was proposed that this arbitration be effected
through legislative enactment.3
The same view was expressed by Mr. E. E. Clark, grand chief con
ductor Of the Order of Railway Conductors, in a speech which he
made to the Chicago Conference on Conciliation in 1900. He said
that the experience of the men was such that they favored this plan
for the settlement of their disputes.4 Grand Master Sargent of the
Brotherhood of Locomotive Engineers expressed his approval of
arbitration as a means of adjusting these troubles.5
The final report of the Industrial Commission in 1902 also com
mented on the settlement of railway labor troubles. It was recom
mended in this report that the Erdman Act be made more specific and
that some penalty be imposed on any party calling a strike or lockout
before having submitted the controversy to a board of arbitration,
or in the event of a refusal to arbitrate when arbitration was offered.6
1 38 U. S. Stat., ^ 3 d Cong., ch. 6.
a Congressional Record, Vol. XXXIII, p. 90.
3 “ We are in favor of arbitration of differences between employers engaged in
interstate commerce and their employees, and recommend such legislation as is necessary
to carry out this principle.” (National Democratic Campaign Handbook, presidential
election o f 1900, p. 12.)
4 “ We have submitted a good many cases and disputed points to arbitration and our
experience has been such as to commend the employment of that agency in settling such
disputes.” (National Conference on Industrial Conciliation, under the auspices of the
National Civic Federation (December, 1901). Papers read at the Chicago conference of
1900, p. 222.)
5 “ If each party to the controversy believes that its position is fair, neither should
*object to the matter being presented to a disinterested party or parties to determine the
merits of the case and to make the award.
“ To-day 175,000 railway employees stand pledged to arbitration, and in all questions
affecting their wages or hours of labor, stand ready at any time, when unable to reach
a satisfactory conclusion with gtheir employers through the medium of committees of the
employees, to submit any and all questions to arbitration.” (Brotherhood of Locomotive
Firemen and Bnginejnen’s Magazine, Vol. XXX, pp. 96, 97, January, 1901.)
6 U. S. Industrial Commission. Final report, Vol. XIX, pp. 952, 953.

THIRD

stage : the new lands act .

In the House of Representatives on June 18, 1902, a bill (H. R.
15157) to authorize the appointment of boards of arbitration and
investigation was introduced. The Committee on Labor made a favor
able report on the proposed bill.7 This measure was to secure the
appointment of investigation committees such as were authorized by
the law of 1888—a provision which had been omitted in the Erdman
Act. The committee making the report insisted that the force of
public opinion would operate to prevent a strike or a lockout pending
investigation under the auspices of the Government. However, no
action was taken by Congress on this proposal.
In 1903 the report of the Anthracite Coal Strike Commission, a
commission appointed by President Roosevelt to- investigate and to
recommend legislation to remedy the coal-strike situation, contained
a recommendation similar to the one in the bill referred to above.8
Credit was given Mr. Charles F. Adams for the conception of this
plan. The man making this report advocated compulsory investi
gation.
However, this plan did not contemplate the outlawing of strikes
prior to an investigation by the Government officials. The authors
of the report thought that the mere existence of this machinery would
operate to prevent strikes; the force of public opinion would be so
strong that no party could defy it in calling a strike or lockout. Mr.
John Mitchell recognized the tremendous force of public opinion to
accomplish such an end. He stated to the commission that no organi
zation could oppose with any degree of success a well-informed public
sentiment, either as to a particular controversy or as to the methods
of conducting a fight.9
In 1904 several bills were introduced for this kind of settlement
(H. R. 9491, H. R. 11513, and S. 3259). A subcommittee of the Com
mittee on Labor of the House of Representatives held hearings on
House bill 9491.10 According to the terms of this bill a national
arbitration tribunal, consisting of the Secretary of Commerce and
Labor and of five other members to- be appointed by the President
of the United States, by and with the consent of the Senate, was to
offer to investigate any controversy that threatened to interfere with
the movement of interstate commerce. Although the railroad em
ployees were not the only ones to come under the operation of this
law, their controversies would have constituted a large part of those
with which the tribunal would have had to deal.
7 H. Rept. No. 2722, 57th Cong., 1st sess.
s U. S. Anthracite Coal Strike Commission. Report. S. Doc. No. 6, 58th Cong., special
.session.
The committee said : ‘‘ We do believe, however, that the State and Federal Govern
ments should provide the machinery for what may be called compulsory investigation of
controversies when they arise. The State can do this, whatever the nature of the con
troversy. The Federal Government can resort to some such measure when difficulties arise
by reason of which the transportation of the United States mails, the operation, civil
or military,, of the Government of the United States, or the free and regular movement
of commerce among the several States, and with foreign nations, are interrupted or
directly affected, or are threatened with being interrupted or affected.” (Idem, p. 85.)
“ * * * the public has the right, when controversies like that of last year cause it
serious loss and suffering, to know all the facts and to be able to fix the responsibility.
In order to do this power must be given the authorized representatives of the people to
act for them by conducting a thorough investigation into all the matters involved in the
controversy.” (Idem, p. 87.)
9 In statement by Dr. N eill: U. S. Congress.
House of Representatives. Committee
on Interstate and Foreign Commerce. Hearings * * * on H. R. 10840, p. 71
(December, 1906-January, 1907).
10 U. S. Congress.
House of Representatives. Committee on Labor. Hearings on
national arbitration bill, H. R. 9491 (1904).
,

USE OF FEDERAL POWER Iisf RAILWAY LABOR DISPUTES.

President Gompers, of the American Federation of Labor, opposed
the passage of the bill, because, he said, it would simply be an enter
ing wedge for the enactment of a compulsory arbitration law.11 On
the other hand, many of the labor leaders of the country advocated
the passage of the law.1213 But the gravity of the situation did not
impress Congress sufficiently to bring about the enactment of the law.
Although there was no congressional action of these bills, similar
ones were introduced from time to time for the next few years.
Thus on January 12,1906, Representative Foss, of Illinois, proposed
House bill 11649. On February 5 of the same year Representative
McDermott, of New Jersey, introduced House bill 14003. On June
13 Representative Beall, of Texas, proposed House bill 20180. In
1907 the following bills were introduced: House bill 4857, House bill
9172, arid House bill 6246. No one of these bills received any report
from the committees to which they had been referred.
But during this period one bill did receive the careful considera
tion of the Committee on Interstate and Foreign Commerce. Hear
ings were held on House bill 10840 on December 14, 1906, and on
January 22, 1907.33 The bill was practically a repetition of the one
drawn in accordance with the ideas of Mr. Charles F. Adams, a
plan calling for compulsory investigation.
Many prominent men, including United States Commissioner of
Labor Neill, appeared before the committee in advocacy of the bill.
Commissioner Neill emphasized the desirability of getting publicity
for the issues of the controversy. However, he did not want to deny
to the men the right to strike pending the report of the investigating
commission.14 Representative Townsend, of Michigan, for the com
mittee, reported the measure favorably to the House on February 25,
1907.15 But no action was taken on this report.
Mr. Townsend did not despair of having his ideas incorporated in
legislation by Congress. On January 28,1908, he introduced another
bill (H. R. 15447), which was substantially the same as the one
which Congress had failed to consider previously. The committee
reported the bill favorably on February 3. Mr. Townsend said:
It is believed that in every strike or lockout one or the other of the parties
is at fault, and probably both are in a degree wrong. In these contests the
public has no voice, and owing to its ignorance of the causes and conditions
it can not exert the sentiment which would be controlling ,in controversies if it
could be exerted.16

Incidentally, it is interesting to note that Representative W. C.
Adamson, of Georgia, author of the Adamson law of 1916, in a mi
nority report opposed the passage of this bill. He declared that the
law would result practically in compulsory arbitration.
In the debate in the House on December 10 Mr. Townsend in
sisted that the bill did not provide for compulsory arbitration, but
only for the investigation and the publication of the facts. He
added, however:

11 U. S. Congress.
House of Representatives. Committee on Labor. Hearings on
national arbitration bill, H. R. 9491 (1904), p. 63.
12 Idem, pp. 17-30.
13 U. S. Congress.
House of Representatives. Committee on Interstate and Foreign
Commerce. Hearings on * * * H. R. 10840.
14 Idem, pp. 56, 67.
* 15 H. Rept. No. 8077, 59th Cong., 2d sess.
16 H. Rept. No. 621, 60th Cong., 1st sess., p. 1.

third stage : the newlands act.

* * * whatever may be the effect upon the employers and employees, it is
our duty to legislate for the people. Special interests, however powerful, must,
if needs be, give way to the public good. Neither capital nor labor would be
safe under a Government controlled by any other principle. * * * We simply
ask by this bill for a fair, just, and impartial publicity of the causes which
bring disaster to the people whom we serve.17

The debate was somewhat spirited, but in the main centered around
the question as to whether this would constitute compulsory arbitra
tion.18 A letter from Mr. Gompers to a Member of Congress con
demned the bill. A similar letter was sent by the representatives
of the railway brotherhoods. On December 12, 1908, the House
by a close vote refused to consider the Townsend bill.19
Both President Roosevelt and the Republican Party were favor
able to the passage of a law similar to the ones which had been intro
duced in Congress. On December 5,1905, President Roosevelt in his
message to Congress said that every labor trouble involving inter
state commerce should be investigated by a Government commission
and that the facts in the case should be reported to the public.20 In
his message of December 4, 1906, he asked Congress to enact a law
such as had been considered already. He gave his reasons as follows:

In this age of great corporate and labor combinations, neither employers nor
employees should be left completely at the mercy of the stronger party to a dis
pute, regardless of the righteousness of their respective claims. The proposed
measure would be in the line of securing recognition of the fact that in many
strikes the public has itself an interest which can not wisely be disregarded;
an interest not merely of general convenience, for the question of a just and
proper public policy must also be considered. In all legislation of this kind it
is well to advance cautiously, testing each step by the actual results; the step
proposed can surely be safely taken, for the decisions of the commission would
not bind the parties in legal fashion, and yet would give a chance for public
opinion to crystallize and thus to exert its full force for the right.21

Again, in bis message of December 3, 1907, Mr. Roosevelt com
mented upon the provision for the settlement of railway labor con
troversies.22 He thought that the Erdman Act had been a success
and that it should then be amended by legislation for compulsory
investigation in those cases in which mediation and comciliation had
failed.
The framers of the platform of the Republican Party in 1908
called the Erdman Act “ one of the most commendable accomplish
ments of the present administration.” 23
The failure of Congress to consider favorably the measures pro
posed served only to increase the zeal with which Mr. Townsend
fought for the enactment of legislation of this kind. In 1909 he
introduced in the House three bills for this purpose.24 But he again
failed to get consideration of his bills. The Congressional Record
shows that two similar bills were introduced by other Members of
the House in 1909.25
In 1910, House bill 22159 and House bill 25506 came before the
House, and in 1911 three more bills, all dealing with this same sub
ject, were introduced.26
17
18
19
20
21
22
23
24
25

Congressional Record, Vol. XLIII, p. 117.
Idem, pp. 114-134.
Idem, p. 165.
Idem, Vol. XL, p. 94.
Idem', Vol. XLI, p. 26.
Idem, Vol. XLII, p. 73.
Republican Campaign Text-Book, 1908, p. 463.
61st Cong.: H. R. 3038 ; H. R. 12221; H. R. 12376.
Idem, H. R. 13905; H. R. 16028.

USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

While no one of the above bills went further than the committees
tti which they were referred, this was not true of those introduced in
1912. During that year Senate bill 5901, House bill 22012, and
House resolution 404 were introduced.
The Committee on Interstate and Foreign Commerce of the House
of Representatives held hearings on House bill 22012. The bill had
been proposed by Representative Lee, of Pennsylvania. The oc
casion for its introduction, Mr. Lee said, was the threatened strike
of the coal miners in his State.2627 The bill was in reality an amend
ment to the Erdman Act. This act was to be extended in scope so as
to bring within its operation the laborers in coal mines and all rail
way employees engaged in interstate commerce, whereas the Erdman
Act applied only to the railway employees in the train service. The
work that had been done by the Commissioner of Labor and by the
presiding judge of the Commerce Court was to be transferred to a
commissioner of mediation and conciliation. This official, together
with two other Government officials, appointed by the President,
by and with the advice of the Senate, was to constitute a United
States board of mediation and conciliation. The Erdman law had
provided for an arbitration board of three members. The amend
ment was to increase the number to five, three of whom would repre
sent the public.
The court review, as provided in the original law, was to be
eliminated.28 The bill, as presented to Congress, had been framed
by Judge Knapp and Commissioner Neill. Both these men ap
peared before the committee and urged the passage of the measure.29
Judge Knapp told the committee why he and Commissioner Neill
had proposed the changes to be made in the law:
* * * In proposing the measure to take the place of the Erdman law,
so-called, and as a result of our experience, Commissioner Neill and myself
have had in mind three principal things:
First. To enlarge the scope of the law so as to afford wider opportunity for
its useful application.
Second. To simplify the law by leaving out everything not deemed essential
to the accomplishment of its purpose; and this includes some minor changes
of procedure, designed to give the law greater flexibility, so that it may be
more readily adapted to varying conditions and different controversies.
Third. To provide in place of the present mediators a board of mediation and
conciliation, so constituted as to be able to meet this greatly increased demand
which must certainly result from the proposed extension of the law.

Judge Knapp insisted that five arbitrators, three of whom repre
sented the public, would be more desirable than the old arrangement
with only one neutral member. It seemed to him that such a change
would make the law more agreeable to both the managers and to the
men. Commissioner Neill thought likewise.
Judge Knapp and Commissioner Neill said that the court review
provided for in the Erdman law had been a liability rather than an
asset; that there was no place for court action in an arbitration pro
ceeding; and that a law with this clause omitted would be more
acceptable to all parties concerned. Commissioner Neill said that
the objection of railroad managers to arbitration under the Erdman
26 62d Cong.: H. R. 54 ; H. R. 1238; H. R. 5139.
27 U. S. Congress.
House of Representatives. Committee on Interstate and Foreign
Commerce. Hearings * * * H. R. 22012 (1912), p. 3.
28 Idem, p. 12 (statement by Judge Knapp).
29 Idem, pm 6-36.

THIRD STAGE : THE NEWLAHDS ACT.

law was due largely to the tremendous influence exercised by one
neutral arbitrator.
The measure proposed by Messrs. Knapp and Neill was not passed
in Congress at the time of the hearings noted. But in the law which
was later enacted as the Newlands law many of the provisions pro
posed here for the first time were incorporated. It is interesting,
then, to note the provisions of this measure in some detail, for in it
we find the origin of the amendments that later became law. The
services of Judge Knapp and Commissioner Neill have been dis
cussed in connection with the application of the Erdman law. Their
long experience, an experience that was eminently successful, quali
fied them to appraise the Erdman Act at its real worth and to sug
gest the manner in which it should be amended.
Representative Lee, of Pennsylvania, had also proposed another
bill in the House. This one (H. R. 25109) contained the same pro
visions as did House bill 22012. On June 7, 1912, the Committee on
Interstate and Foreign Commerce made a favorable report on the
bill.30 It said that the new law was to be only an enlargement
of the Erdman Act, so as to include coal miners and all the employees
of the roads doing an interstate commerce business. The voluntary
feature of the act was to be retained. No court review of the award
should be had and the number of arbitrators might be changed, at
the option of the contestants, to five. The new commission of media
tion and conciliation, as recommended by Messrs. Knapp and Neill,
was to take over the work that had been done by these men under the
old law. The committee insisted that the proposed changes would
operate successfully and they gave the United States mediators the
credit for having suggested the changes to be jnade. But the House
took no action on the report of the committee.
On February 15, 1913, Representative Berger, of Wisconsin, pro
posed House joint resolution 401, to the effect that the Government
take over and operate the railroads in the event of a strike.31 On
June 28 the Committee on the Judiciary of the House reported favor
ably, without comment, a bill to amend the Erdman Act.32 But the
proposition that finally led to action on the part of Congress was a
bill (S. 2517, 63d Cong.) introduced by Senator Newlands, of
Nevada, on June 13, 1913.
Before giving any analysis of the above bills it will be well to note
what consideration the people outside the halls of Congress had been
giving to the question of strikes on the railroads and the remedies
that had been suggested by them; and also to examine the reasons
for the demand that new legislation be enacted.
President F. A. Delano, of the Wabash Railroad, expressed his
criticism of the existing system and proposed a new agency.33 His
H. Kept. No. 853, 62d Cong., 2d sess.
%
Congressional Record, Vol. XLIX, p. 3222.
33 “ As a matter of fact the decision of these questions involves a great deal of study.
The man or men who should decide them should be largely freed from other responsi
bilities and chosen for a reasonably long term. .A single able man, as has been demon
strated in the case of Canada,, giving his whole time and thought to the adjustment of
controversies between employers and employees, can do an immense amount of good;
and where a law exists such as the Lemieux act of Canada, which provides for mediation
and uses the authority of the Government to compel both sides to a dispute to desist
from, open hostilities until the matter has been fully ventilated and carefully investi
gated, is an excellent thing,” (The Railway Age Gazette, Vol. L, No. 14, pp. 825, 826.
Apr. 7, 1911.)
30
31

32 H. Rept. No. 30, 63d Cong., 1st sess.

USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

statement was made in 1911 and represented the general attitude of
the railway managers. He wanted to have a permanent arbitration
court with authority to compel arbitration and to enforce the award.
Mr. Delano considered the problem one the nature of which called
for the administration of specialists, of men who, through their
handling of this kind of problem, had acquired the skill requisite
to the realization of the purposes of the law. The experience of
Canada in the operation of the Lemieux act seemed to Mr. Delano a
safe guide for the United States in the provisions! that should be
made.
In answer to Mr. Delano, Mr. W. S. Carter; president of the
Brotherhood of Locomotive Firemen and Enginemen, admitted the
many defects of the Erdman law. However, he objected to the De
lano plan even more strenuously than to the Erdman Act, with all
the shortcomings which he conceded to be present in the operation of
the latter law.34 Mr. Carter said that nothing could be more objec
tionable to the laboring man than compulsory arbitration. Such a
method of settlement, he said, would mean that the laborer would
revert to a condition like that of the serf in the Middle Ages.
Mr. Delano and Mr. Carter can fairly be said to represent, respec
tively, the attitude of the managers and of the workers. In a refer
endum taken by the Railway Age Gazette in December, 1912, a large
majority of the managers expressed themselves in favor of some plan
for the fixation of wages of railway labor by the Government.35 The
majority of those of this opinion wanted to have one and the same
authority fix wages and rates for traffic. According to that plan
the Interstate Commerce Commission would have had its scope en
larged. But if the work could not be done by the Interstate Com
merce Commission, they wished at least to have it done by some
agency in cooperation with the Interstate Commerce Commission.
They wanted coordination in the regulation of the income and the
outgo of the roads—a proposition which made a very effective appeal
on the basis of its logical analysis.
Thus, it appears how radically the managers and the men had ex
changed positions with reference to the method of settling labor dis
putes. At the period under observation it was the managers who
invoked the assistance of the Government and the employees who
opposed Government activity as proposed. The reasons for the
change in the attitudes of the managers and the men can be con
jectured with some degree of certainty. In the earlier period when
the roads were opposing arbitration under the auspices of the Gov
ernment the railroads had not as yet been subjected to such stringent
regulation. In such a condition the roads, should they lose in a con
test with the men for higher wages, could increase rates and there
with make up the deficit. Also the railway managers had been the
stronger of the contestants in the earlier period. They felt them84 “ I know of no proposition which would be so distasteful to working people in
any class of employment as compulsory arbitration, even though it could be legally
enforced. W ithout assuming the role o r a ghoul and digging from history’s graveyard
the skeletons of the workingmen a century old, it can readily be shown that when the
courts dictated the wages and working conditions of the working people they enjoyed
but little greater privileges than those of serfs. * * * Summing up the entire
matter, it is evident that arbitration is a complex problem; that it has many features
to be admired, others that can rightfully be questioned, and some that are justly feared
by the working people.” (The Railway Age Gazette, Vol. L, No. 17, pp. 979, 980. (1911.)
555 The Railway Age Gazette, Vol. LIII, pp. 1247-1255.

T H IR D STAGE : T H E N EW LA N D S ACT.

selves able to win out in a fight with the men. Since that time the
public has not only taken over the control of the rates charged by the
roads, but it has become far more exacting in its demands as to the
kind of service rendered. On the other hand., the employees formerly
felt that they were too weak to secure their demands by the strike and
that it was necessary to look to some higher authority in order to
secure justice. Therefore, they preferred to risk their case in the
hands of a board working under Government supervision. This
new device of the concerted movement helped produce this change of
view. This is such an effective weapon that the brotherhood leaders,
after the discovery of its effects, no longer felt themselves on the de
fensive. They considered that in a contest on the larger scale they
had a decided advantage of the managers. Therefore their reluctance
to give up this weapon for their cause.
No explanation of the passage of the Newlands law would be ade
quate if it failed to take into account two controversies which were
fought out in 1912 and in 1913, respectively. These were the contro
versy between the engineers and the railroads in the East and that of
fche firemen and enginemen with the roads in the same territory.
Both these settlements have been adverted to in the preceding chapter.
But it is necessary to discuss them from another point of view in this
connection.
Early in 1912 there was a concerted action by the Brotherhood of
Locomotive Engineers on 52 railroads in the East.36 They demanded
an increase in wages. When a strike vote was taken more than 93
per cent of the men voted to go out on strike in case the roads refused
to grant their demands. Messrs. Knapp and Neill offered their serv
ices in an attempt to settle the dispute through mediation. In this
they failed to get the desired results. However, they did arrange for#
a board of arbitration, to consist of seven members. One member
should be appointed by each side to the contest and these two members
should select the five neutral arbitrators. Should they fail within a
period of 15 days from their own appointment to agree upon the neu
tral members these should be appointed by the Chief Justice of the
Federal Supreme Court, the presiding judge of the Commerce Court,
and the Commissioner of Labor. As it worked out, they were ap
pointed in the latter manner. The roads appointed Daniel Willard,
president of the Baltimore & Ohio Railroad; the men appointed P. H.
Morrissey, grand master of the Brotherhood of Railroad Trainmen.
The neutral members were Oscar S. Strauss, Dr. Albert Shaw, Otto M.
Eidletz, all of New York; President Charles R. Van Hise, of the Uni
versity of Wisconsin; and Frederick N. Judson, of St. Louis.
This was one of the largest cases ever to arise in this country. In
it were involved 52 railroads, aggregating more than 66,000 miles of
track. The roads in question had nearly 40 per cent of the aggregate
revenues and expenses of all the roads in the United States, and they
had 47 per cent of the traffic; they served a population numbering
42 per cent of that of the entire country,
These figures show that the trouble was one the settlement of
which was a matter of moment to the country and to the business
86 Except where otherwise noted, data for the remainder of this section are from
Report of the Board of Arbitration on Eastern Railroads and the Brotherhood of Loco
motive Firemen and Enginemen (1912).

USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

interests especially. But the part of the report that is of significance
in this study is that containing the recommendations made by the
commission, recommendations in their nature obiter dicta. In all
contests of this kind the commission insisted the interests of the
public must be held to be paramount; “ it is an intolerable situa
tion when any group of men, whether employees or employers, have
the power to decide that a great section of the country, as populous
as all of France, shall undergo great loss of life, unspeakable suffer
ing, and loss of property beyond power of description through
stoppage of a necessary public service.” The report included an
appraisal of the Erdman Act, which commended that clause making
it unlawful for either side to an arbitration to call a strike or to
inaugurate a lockout following the award unless 30 days’ notice were
given to that effect. But the two great weaknesses, it appeared to the
commission, were the one making it obligatory to hand down a deci
sion within 30 days from the appointment of the board of arbitration
and the failure to give the public adequate representation on the
board.
The remedy proposed by the commission was that the wages of
all railway employees be fixed by a Government commission to be
appointed for that, specific purpose. This would have meant some
qualification of the right of free contract, but a modification, it
seemed to the members of the commission, justified on the basis of the
public necessity involved.
Mr. Morrissey presented a minority report in which he disagreed
with many of the findings of the commission. He objected to the
statistics used by the board as a basis for the award, to the standard
accepted, and to the analogy drawn by the board between the French
strike, in which the men were called into Government service and
detailed to run the trains, and a strike in this country. The last
objection raised by Mr. Morrissey has been subjected to critical
analysis. He based his position partly on the ground that the
French strike involved all the railway employees, and not simply
those in one branch of the service, a condition that could not end
otherwise than in a tie-up of the entire transportation system of the
country. It has been suggested that the point raised by Mr. Mor
rissey is irrelevant ; that the result is» the same in either event, a
breakdown of the traffic; that a train can no more run without an
engineer than it can run without any employees at all. The primary
interest of the public is the movement of trains without interruption.
Mr. Morrissey agreed with the majority that the Erdman law
needed amendment; that the number of arbitrators should be in
creased if the parties so wished; and that the administrators of the
law should be given the right, upon their own initiative, to intervene
without first having been requested to do so by one of the parties to
the dispute. He thought that it might be desirable to have a com
mission collect data to be used as a basis for the fixing of wages, but
he objected to giving such a commission the power to fix wages, a
power in effect, he said, to force arbitration on the employees. '
In general, it may be said that the award and the report met with
the approval of the majority of the railroad managers and of the
public at large. The report of Mr. Morrissey probably expressed the
attitude of the employees throughout the country, both those engaged

THIRD stage: the

newlands*act.

in the operation of trains and those in other lines of employment.
President W. Gr. Lee, of the Brotherhood of Bailroad Trainmen,
characterized the decision as “ one of the most pronounced failures
that had ever been experienced in the labor field.” 37 The chief ob
jection of the brotherhoods seemed to be that the board went out of
its way to make recommendations which did not pertain to this par
ticular controversy. This position of the railway labor organiza
tions resulted in the limitation placed upon the boards of arbitration
authorized by the Newlands law, a provision to the effect that the
arbitration board must limit its findings to the particular issues in
volved. It will appear also in the discussion of the Adamson law
that the same attitude of the railway labor organizations was re
sponsible for the definite limitation placed upon the scope of activity
of the Eight-Hour Commission authorized by that law. This arbi
tration was significant, however, because it had much to do with the
shaping of public opinion in this matter and its influence was felt in
framing the Newlands law and also in the legislation that has been
proposed in Congress since that time.
The other controversy referred to above was that between the
Brotherhood of Locomotive Firemen and Enginemen and the Eastern
railroads. Negotiations had begun between the parties in 1912, at
the same time that the engineers began the consideration of a strike.
The firemen and enginemen, as a result of a failure to make an agree
ment with the managements, voted by over 96 per cent to go out on
strike.38 The employers proposed arbitration like that accepted by
the engineers. The men objected to arbitration except under sanction
of the law and proposed arbitration under the Erdman law. But the
employers considered the issue ,of too great importance to be in
trusted to the arbitrament of one neutral arbitrator. Finally, in
order to prevent the strike, the managers yielded and accepted arbi
tration under the Erdman law.39*
In accepting the arbitration as per the plan of the men the railroad
managers did not express approval of that method of settlement.
It was simply a case of accepting arbitration under the Erdman law
or else having upon their hands a strike of large proportions. The
roads were not in a position to fight the issue to a successful conclu
sion, and this was a situation in which discretion proved the better
part of valor. The settlement effected was not satisfactory to either
of the parties involved. This was shown clearly in the agitation
that increased among both the men and the employers for a change in
the Erdman law.
PASSAGE OF THE NEWLANDS ACT.
IN CONGRESS.

During the arbitration of the firemen’s case the conductors and
trainmen in the East presented demands to the roads for increased
pay and for changes in working conditions. Failing to get assent to
their demands, they ordered a strike vote. The result showed that
37 U. S. Congress.
House of Representatives. Committee on Interstate and Foreign
Commerce. Hearings * * * on H. R. 19730, 64th Cong., 2d sess., p. 46 (1917).
38 Proceedings, Arbitration Between the Eastern Railroads and the Brotherhood of
Locomotive Firemen and Enginemen, Vol. I, p. 3 (1913).
30 L. W. Hatch, in American Yearbook, 1913, p. 415.

48 USE OF FEDERAL POWER IK RAILWAY LABOR DISPUTES.
nearly all the men favorea striking in order to force the acceptance
of their demands.40 In order to prevent a strike that would have been
a serious matter for the entire country, President Wilson called a
conference of the two parties to meet him in Washington.41 This
was the first of such conferences called by President Wilson, blit it
was not to be the last one. The representatives of the contestants
agreed that if the bill then before Congress (S. 2517) were enacted
they would submit the controversy to arbitration under the terms of
the new act.42 This supplied the stimulus that was the immediate
cause of the passage of the law known as the Newlands law.
The Senate Committee on Interstate Commerce held public hear
ings on this bill on June 2043 At this meeting Hon. Seth Low,
Judge Knapp, and members of the railway brotherhoods testified.
All these men, without exception, advocated the adoption of the
changes proposed in the Erdman law. These changes are the ones
that have already been suggested, namely: An increase in the number
of arbitrators that might be used; the creation of a United States
commission of mediation and conciliation to take over the work that
had been done by Judge Knapp and Commissioner Neill; authoriza
tion for the board to take the initiative in settling controversies;
provision for the interpretation of the award in the event of a mis
understanding of it; permission to extend the length of time within
which the board must reach a decision, etc.
Senator Newlands, of Nevada, on June 23 reported the bill to the
Senate, recommending its immediate passage.44 Several of the Sen
ators, speaking for the adoption of the measure without delay, em
phasized the importance of the controversy then being waged and
asked that the bill be enacted into law without any needless dis
cussion the following day. The only point on which there seemed
to be any real difference of opinion was that of the amount of com
pensation to be granted the members of the new commission.45 The
bill passed the Senate without amendment on June 26.46
On July 15 the House of Representatives began consideration of
the bill that had passed the Senate. The speakers to the proposition
were unanimous as to the advisability of passing the bill presented.
Some members expressed regret that there was not time in which to
incorporate into the law an amendment giving the public a larger
representation on boards of arbitration. Since the bill in its then
form had already passed the Senate and the approval of those to be
affected had been secured, and since the speedy enactment was desired
to avert the impending strike, the House passed the measure.47 The
President approved the bill on the same day.48
PROVISIONS OF THE LAW.

The law as enacted should in reality not be regarded as a piece of
new legislation. It is the old Erdman Act amended and amplified.
41 L . W . H a tc h , in A m e r ic a n Y ea r b o o k , 1 9 1 3 , p. 4 1 6 .
41 Id em .
42 U . S . C o m m issio n e r o f M e d ia tio n a n d C o n c ilia tio n .
N o . 1 4 2 3 , 6 3 d C on g ., 3 d s e s s ., p p . 5 , 6 . 1 9 1 4 .
43 S. R e p t. N o . 7 2 , 6 3 d C o n g ., 1 s t s e s s . ( 1 9 1 3 ) .
44 C o n g r e s s io n a l R ec o rd , V o l. L , p p . 2 1 3 3 - 2 1 3 5 .
45 Id e m , p p . 2 1 7 8 - 2 1 8 2 (J u n e 2 6 , 1 9 1 3 ) .
46 Id e m , p. 2 1 8 2 .
47 Id e m , p p . 2 4 3 0 - 2 4 4 2 .
48 Id em , p. 2 4 7 1 ( J u ly 1 8, 1 9 1 3 ) ,

F ir s t A n n u a l R e p o r t.

H . D oc.

49
As a result of the recommendations made in the engineers’ award and
the disappointment of the labor interests thereat the new law pro
vided that the board of arbitration should limit its decision to the
issues involved and not make any excursions into obiter dicta. Con
gress did not adopt the amendment which had been recommended
by the administrators of the Erdman Act involving the removal
of the provision calling for a review of the decision of the arbi
tration board by a court. Enough has already been said in con
nection with the discussion of the bills as they came up for the
consideration of Congress to make it unnecessary to state in detail
the terms of the new law. For its provisions the reader is referred to
the appendix of this monograph.
THIRD

sta g e : t h e n ew la n d s act.

EXPRESSIONS OF OPINION EVOKED BY PASSAGE.

There does not seem to have been any very unfavorable criticism
of the Newlands law when it was enacted. To say that it met the
needs of the' situation adequately would be to state the case too
strongly, however. Probably as clear an expression of the growing
public sentiment as can be found is given in an editorial of the Re
view of Reviews for August, 1913 (p. 146) :

It will be necessary some time to put. the railway service in a position where
the concerted strike will be impossible. Railroads are just as essentially a
public character as are forces of policemen and firemen or the postal clerks and
carriers. The strike is1not a proper weapon to be used by men in such employ
ments. A concerted railroad strike would necessitate the operation of the rail
roads by military power, in order to supply the people of the cities with food
and other necessities. Since, however, the strike is not morally permissible
under these circumstances, there is the more reason why the public should see
that railroad servants have exceptionally good treatment as regards wages and
all conditions of employment and service. On reasonable terms and at proper
intervals they should have opportunity to secure arbitration of all well-formu
lated claims and demands.
PERSONNEL OF THE BOARD OF MEDIATION AND CONCILIATION.

The members of the Board of Mediation and Conciliation ap
pointed by President Wilson were Judge Martin A. Knapp, who,
with Commissioner Neill, had administered the Erdman law, and
Judge William L. Chambers, who had been the chairman of the ar
bitration board in the controversy between the railways and the fire
men and enginemen of the East. Mr. G. W. W. Hanger was to be
assistant commissioner of mediation and conciliation, Judge Cham
bers having been designated as the commissioner.49
OPERATION OF THE NEWLANDS ACT.

There is nothing novel in the procedure under the Newlands law.
Already, in the administration of the Erdman Act, Judge Knapp
and Dr. Neill had formulated a plan by which they proceeded in the
adjustment of disputes. This method has, in the main, been followed
in the administration of the Newlands law. The presence of Judge40
40 U . S. C o m m issio n e r o f M e d ia tio n a n d C o n c ilia tio n .
N o. 1 4 2 3 , 6 3 d C on g ., 3 d s e s s ., p. 2 . 1 9 1 4 .

79994°—22------4

F ir s t A n n u a l R e p o r t.

H . D oc.

50 USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.
Knapp on the board made it possible to profit by the experience in the
operation of the earlier law.
The case which occasioned the passage of the law was adjusted
under its terms. Immediately upon the appointment of the new
board its services were offered to the contestants. The effort to settle
the dispute by mediation failed, but as the parties to the controversy
had promised to do in the event of the enactment of the law, they
agreed to arbitrate under its terms. This agreement, however, was
carried out only with great difficulty. The railroad managers pre
sented counterclaims, which they insisted should be arbitrated along
with the demands of the men. To this the men objected, and the
managers finally yielded and agreed to arbitrate only the demands
made by the men and which were the immediate cause of the contro
versy. The neutral arbitrators in this case were Hon. Seth Low, of
the National Civic Federation, and President John H. Finley, of the
City College of New York. The award of the board was rendered
on November 10,1913, and went into effect immediately.50
But this arbitration did not prove altogether satisfactory to the
men. Mr. Sheppard, who served on the board as the representative
of the men, said that the arbitration was a failure. He admitted
that the men serving as neutral arbitrators were of the highest char
acter. However, not being trained in the technique of railroading,
they were unable to write a decision which was not subject to the
wrong interpretation by the managers. Mr. Sheppard said that the
men had never been able to get a satisfactory award except when
their representatives sat face to face with the representatives of the
managers and told them exactly what each proposition meant.51 Mr.
Garretson, in 1916, said that the men objected to arbitration because
the interpretation of the award was always left to the employer.
And this, according to Mr. Garretson, was equivalent to a denial of
the real benefits contemplated for the men in the award.52
Experience has shown that in the operation of the Newlands law,
just as in that of the Erdman Act, mediation has been of more
importance than arbitration. In the 4-year period ending June
30, 1917, the board served in 71 controversies. Fifty-two of these
were settled wholly by mediation, six by mediation and arbitration,
three by the contestants without the aid of the mediators, one by act
of Congress, and one at the time of making the report was yet unset
tled.53 It will be seen, therefore, that the board had succeeded in
getting adjustments in 58 of the 70 cases settled up to June 30, 1917.
50 U . S. C o m m issio n e r o f M e d ia tio n a n d C o n c ilia tio n F ir s t A n n u a l R e p o r t. H . D o c .
N o . 1 4 2 3 , 6 3 d C on g ., 3 d s e s s ., p p . 5 , 6 . 1 9 1 4 .
51 “ T h e tw o g e n tle m e n , w e ll k n o w n a n d w e ll v e r s e d in m o s t o f th e s c ie n c e s a n d id e a s
o f t h e d a y , fo u n d th e m s e lv e s c o m p le te ly a t s e a , a n d so a d m itte d , in r e g a r d to th e
te c h n iq u e a n d d e t a ils o f th e r a ilw a y p ro b lem . T h e y w r o te in v e r y c h o ic e E n g lis h , i f
y o u p le a s e , r u le s t h a t th e y th o u g h t w o u ld s e r v e th e p u r p o se .”
B u t, M r. S h e p p a r d w e n t o n to s a y , th e r a ilr o a d m a n a g e r s p la c e d t h e w r o n g in te r p r e t a
t io n s o n th e s e r u le s.
“ T h e o n ly tim e th e b r o th e r h o o d s h a v e b ee n a b le to g e t a s a tis f a c t o r y s e t t le m e n t o f
a n y q u e s tio n w h ic h w e h a v e h a d u p h a s b ee n w h e n th e b r o th e r h o o d s’ r e p r e s e n ta tiv e s h a v e
s a t fa c e to fa c e w it h th e m a n a g e r s a n d s a id to t h e m : ‘ T h is r u le m e a n s so a n d so , i t
s h o u ld b e a g r e ed in su c h a n d s u c h a w a y .’ T h e r a ilr o a d m a n a g e r s h a v e fin a lly sa id ,
‘ Y e s .’ E v e n th e n w e h a v e d iffic u lty in h a v in g th e ir m e m o r y s e r v e th e m p r o p e r ly .”
(TJ. S. C on g re ss. H o u se o f R e p r e s e n ta tiv e s . C o m m itte e o n I n te r s t a t e a n d F o r e ig n
C om m erce. H e a r in g s on H . R . 1 9 7 3 0 , 6 4 th C o n g ., 2 d s e s s ., p. 1 6 2 . (J a n u a r y , 1 9 1 7 .)
53 S . D o c . N o . 5 4 9 , 6 4 th C o n g ., 1 s t s e s s ., p. 3 2.

63 U. S. Board of Mediation and Conciliation. Report for 1913-1917, p. 3 (1918),

t h ir d s t a g e : t h e n e w l a n d s a c t .

The report submitted to the President by the commissioner of
mediation and conciliation on December 1, 1919, presents the follow
ing tabulated summary of the results of its activities:54
NUMBER OF CASES, AND OF RAILROADS AND EMPLOYEES INVOLVED THEREIN,
CONSIDERED BY THE UNITED STATES BOARD OF MEDIATION AND CONCILIATION,
1913 TO 1919.
Number Railroads Employees
of cases. involved. involved.

Item.
Services of board requested by—
Railroads...................................................................................................
Employees................................................................................................
Jointly.......................................................................................................
The public................................................................................................
Services of board tendered to railroads and employees jointly in the
absence of any request...............................................................................
Total......................................................................................................

29
74
27

392
85
50

16
148

57
586

477,667
23,211
21,401
135
98,396
620,810

The same report gives the disposition of the cases:

Settled by—
Mediation alone__________________________________________ 70
Mediation and arbitration_________________________________ 21
----- 91
Tfie parties before mediation began________________________ 11
Tbe parties after mediation began_________________________ 8
----- 19
Congressional action (Adamson law )--------------------------------------- 1
Ill
Mediation suspended or discontinued_______________________________ 3
No action taken by board because existing controversy did not come
within provisions of Newlands law______________________________ 11
Controversy abandoned by employees----------------------------------------------- 2
Agreements on some points reached in mediation and mediation discon
tinued because of the roads being taken under Federal .control_____ 2
Removed from jurisdiction of board before mediation began because of
roads being taken under Federal control__________________________ 14
Services of board declined by—
Railroads________________________________________________ 2
Employees----------------- ------------------------------------------------------ 1
----- 3
35
Cases pending.
2
Total number of cases---------------------------------------------------------------148

A comparison of the board’s figures as given for June 30, 1917.
and for June 30, 1919, shows that the settlements by mediation had
increased by the addition of 18 cases and those by mediation and
arbitration by the addition of 15 cases. These additions represent,
therefore, the work of the board for a period of two years. It
should be noted, however, that the settlements through the agency of
the board in the years 1918 and 1919 did not, as a rule, involve large
numbers of employees. The maximum number of employees in any
single case in which the aid of the board was invoked in the year
1918 was 2,939.55* From this maximum the number ranged to a mini
mum of six.50 The controversy in which the 2,939 employees were
54 U . S . B o a r d o f M e d ia tio n a n d C o n c ilia tio n .
55 Id em , p . 5 0 .
50 Id em , p. 5 1 .

R e p o r t o n O p e r a tio n s, 1 9 1 3 - 1 9 1 9 , p p ,

52 USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.
involved, however, was not settled by the mediation board, the road
having been taken under Federal control before any settlement was
made. The largest number of employees reported in any contro
versy in 1918 in which the board actually succeeded in getting a
settlement was 393, a controversy between the telegraphers and the
Denver & Rio Grande.57
The figures for the first half of 1919 show only two cases settled
by mediation of the board, the total number of employees being only
158.58 Only one arbitration under the law was held in 1918 and no
case is reported for 1919.59 During these two years, however, ma
chinery was set up by the Railroad Administration to deal with the
specific problems of adjustment arising during the war period and
this machinery was quite extensively utilized.
These figures show that the Newlands law has been called into
operation more frequently than the Erdman Act was ever used
throughout its entire history. This can be explained, however, by
reason of the fact that the Newlands law happened to be on the
statute books at a time when contestants to disputes of the kind
dealt with under the law were willing to* try this method of settle
ment. It will be recalled that the Erdman Act was not used at all
for more than eight years, after its passage. But after its first use in
1906 it was invoked with increasing frequency. The report of the
Board of Mediation and Arbitration for 1914 says that from 1901 to
1905 there were 329 strikes affecting railway employees.60 It should
be remembered, hoivever, that of these 329 strikes not all were called
by men in the train service, the only railway employees coming
within the scope of the operation of the Erdman law. Yardmen and
employees of the roads other than those actually engaged in the oper
ation of trains were not affected by the law. Further, it should be
noted that in the period in which these strikes occurred the parties to
railway labor controversies had not as yet accustomed themselves to
the use of governmental machinery in the settlement of their disputes.
Because of its direct bearing on the opinions of the several inter
ests to railway labor controversies something should be said of one
arbitration in particular, that between the Brotherhood of Locomo
tive Engineers and the Brotherhood of Locomotive Firemen and Enginemen and the railroads of the West.61 This controversy involved
98 roads. In October, 1913, the railway labor organizations re
quested an improvement in working conditions and an increase in
wages. The United States Board of Mediation and Conciliation
failed to get the contestants to settle through mediation, but did suc
ceed in having them agree to arbitrate under the Newlands law.
The appointment of the neutral arbitrators was made by the Media
tion Commission. It selected Judge Pritchard, of North Carolina,
and Hon. Charles Nagel, of St. Louis. Mr. Nagel had been Secre
tary of Commerce and Labor in a former administration. The pro
ceedings began on November 30, 1914, in Chicago. The agreement
57 U . S. B o a r d o f M e d ia tio n a n d C o n c ilia tio n . R e p o r t o n O p e r a tio n s, 1 9 1 3 - 1 9 1 9 , p . 5 0 .
58 Id em , p . 5 3 .
59 Id e m , p . 6 0 .
60 U . S . C o m m issio n e r o f M e d ia tio n a n d C o n c ilia tio n . F ir s t A n n u a l R e p o r t. H . D o c .
N o . 1 4 2 3 , 6 3 d C on g ., 3d s e s s ., n . 1 1.
* ei T h e f o llo w in g a c c o u n t o f t h is a r b itr a tio n is b a se d u p o n : A w a r d , A r b itr a tio n b e tw e e n
th e W e s te r n R a ilr o a d s a n d th e B r o th e r h o o d o f L o c o m o tiv e E n g in e e r s a n d th e B r o th e r
h o o d of Locomotive Firemen and E n g in e m e n , p, 3 (1915).

53
called for an award within 90 days from the beginning of the pro
ceedings. But two subsequent agreements were made whereby the
time was extended to April 30, 1915. The award was signed by the
two members representing the roads and by the two neutral arbitra
tors. However, Judge Pritchard submitted a supplementary report
in which he said that he did not think the men had secured all that
they should have been given, and that he had signed the report only
after having become convinced that this was the best that could be
had at the time. The representatives of the railways also submitted
a supplementary statement in which they contended that the award
had been too favorable to the men; that they had signed the award
solely for the purpose of being able to get some agreement.
But the most interesting part of the board report from the point
of view of this study was that rendered by the minority members,
representatives of the brotherhoods. They objected to the use by
the board of the statistics which had been used by the board in the
East, statistics of the Interstate Commerce Commission which, they
said, the eastern roads had admitted to be inaccurate and which they
had professed to have used solely for the reason that there we;re no
other figures available:
THIRD STAGE : THE NEWLANHS ACT.

The very best thing that can he said of snch an award is that it settles nothing,
but simply postpones any further action on the questions involved for a period
of 12 months.
A great opportunity to bring about industrial peace and the hearty coopera
tion of the employers and the employees has been lost by the failure of the
board to equitably and justly settle the questions involved. We believe the
public is greatly interested in the safe and proper operation of the railroads,
and we had hoped that, by this award, the questions of wages and working con
ditions would be settled and allowed to rest for several years; but to expect
such a condition when the finding of the board becomes public, is hopeless.

This arbitration, like one other to which reference has already
been made, was insisted upon by President Wilson, and was finally
agreed upon as a result of his influence.62 The result was far from
satisfactory from the point of view of the employees. During the
proceedings, the representatives of the brotherhoods made vigor
ous protest to the board of Mediation and Conciliation because Mr.
Nagel, one of the neutral arbitrators, was interested in some of the
railroads involved in the controversy, in that he was a trustee of an
estate owning some railroad bonds, the market value of which
might be affected by the arbitration award. The board decided, how
ever, that Mr. Nagel was; competent as a neutral member of the arbi
tration board.63 In the early period of the discussion the employees
were bitter in the expressions of their objections to this board and
their disappointment at having to submit their case to a board one
of the members of which was an interested party although posing as
a neutral member.64
62 Brotherhood of Locomotive Firemen and Enginemen’s Magazine, Vol. LVII, p. 345
(1914).
03 Idem, Vol. LVIII, pp. 695, 696 (June, 1915).
64 An editorial sa id : “ *
* * But candor compels us to state that we feel that
we have been grossly deceived in being compelled to submit our case to a jury upon
which sat not. only two railroad officials, but also one alleged neutral arbitrator, who
has shown by his conduct and demeanor throughout the whole hearing that he was a
violent partisan of the railroads.” (Brotherhood of Locomotive Firemen and Enginemen’s Magazine, Vol. LVIII, p. 696.)
A joint meeting of the organizations affected by the award, at a meeting in Chicago,
passed a resolution demanding a congressional investigation into the appointment of
Mr. Nagel. (Idem, p. 697.)

54 USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES,
Their contention was that a man in the position of Mr. Nagel would
be unconsciously influenced by the circumstances surrounding him.
The brotherhood magazines published criticisms and the members
assembled in conventions passed resolutions condemning and disap
proving the entire proceedings.
Mr. Lee, president of the Brotherhood of Railroad Trainmen, said:
* * * A board of arbitration, regardless of how fair-minded its members
may be, naturally reaches the point, when its own interests are affected, of
arbitrating its own case rather than that of the employees affected. This Is
said without any reflection on the personnel of the arbitration boards. The
results of arbitration fully justify the position now taken by the railway em
ployees against the like happenings in the future.65

A similar view was expressed by Mr. Carter, president of the
Locomotive Firemen and Enginemen:

After years of experience under arbitration, I reached the conclusion: That
the labor question is not arbitrable If the workingmen hope to secure justice in
the results. I have discovered that anything that pertains to workingmen’s
wages or working conditions is purely a class question, a question on which
there is an alignment hard and fast. * * *
The fact of the m atter is, gentlemen of the committee, that arbitrators are
necessarily selected from the master class, which either takes its profits from
the labor of others or else is employed by corporations in the capacity of
officer or attorney. I have said you may as well select Mr. Gompers as a
neutral arbitrator as select people usually selected as arbitrators. Mr. Gompers
could honorably, and would honorably, grant us the 8-hour day, just as the
men who are selected would honorably refuse it. It is purely a class question,
and these questions are not arbitrable. (S. Doc. No. 549, 64th Cong., 1st sess.,
pp. 143, 145.)

Whatever may have been the merits or the weaknesses of the
contentions made by the men in this respect,'they indicate that the
Newlands law had outgrown its usefulness, and that no great loss
would have been sustained had it been removed from the statute
books. Certainly this is true with reference to the arbitration pro
visions. The men working on the railroads have felt this way about
it for some time.66 As to the Nagel controversy, the management
holds that the railwav employees were disappointed at the outcome of
the award and therefore gave this basis in justification of their oppo
sition to arbitration in general.
The employees realized that in a fight to the finish they had the
greater strength, and they were, therefore, unwilling to have the in
tervention of any third party to make a decision for them which
they could, perhaps, make for themselves with more gain. This is*05
A n o th e r e x p r e s s io n o f th e e m p lo y e e s ’ p o in t o f v ie w is a s f o l l o w s : “ T h e a p p o in tm e n t
o f a m a n to s u c h a p o s itio n o n t h e b o a r d o f a r b itr a tio n in t h e p r e s e n t c o n tr o v e r s y h a v in g
p r e d ile c tio n s su c h a s M r. N a g e l s e e m s to h a v e , j u d g in g fr o m h is p a r t in th e d e lib e r a tio n s
o f t h e b o a r d a n d t h e a w a r d i t s e lf w a s a g r a v e m is ta k e , a n d a t b e s t a sh a m e fu l in ju s t ic e
t o t h e e m p lo y e e s w h o s e in te r e s ts w e r e a t s ta k e .” (Id e m , p. 6 7 3 .)
05 U . S . C o n g r e ss. H o u s e o f R e p r e s e n ta tiv e s . C o m m itte e o n I n te r s t a t e a n d F o r e ig n
C om m erce. H e a r in g s o n H . R . 1 9 7 3 0 , 6 4 th C on g ., 2 d s e s s ., p . 4 9 .
m In 1 9 1 7 M r. L e e , p r e s id e n t o f t h e B r o th e r h o o d o f R a ilr o a d T r a in m e n , w h e n a sk e d
w h a t a c tio n th e G o v e r n m e n t s h o u ld ta k e in th e s e t t le m e n t o f r a ilw a y la b o r d isp u te s ,
s a i d : “ F ir s tj to a b o lis h th e N e w la n d s A c t * * * I m e a n b y t h a t t h e m e d ia tio n
a n d c o n c ilia tio n n o w in e ffe c t, b e c a u se it i s a b s o lu te ly u s e le s s a s i t is to -d a y , a n d a ll o f
th e s e o r g a n iz a tio n s h a v e g o n e o n reco rd a s b e in g o p p o sed to it a s it i s n o w h a n d le d .”
(C o m m itte e o n I n te r s t a t e a n d F o r e ig n C om m erce. H e a r in g s o n H . R . 1 9 7 3 0 , 6 4 th C on g..
2 d s e s s ., p. 5 4 .)
P r o f. W . Z. R ip le y , o f H a r v a r d U n iv e r s ity , s a id o f t h e l a w : “ B u t i t h a s fa ile d
u t te r ly t o m e e t th e n e e d s o f t h e c a se . I t s im p a r tia l m e m b e r s w e r e in it ia te d in to th e
te c h n iq u e o f r a ilr o a d in g , e n tir e ly in e x p e r ie n c e d , a n d d isq u a lifie d fo r r e n e w e d se r v ic e
a s s o o n a s th e r ec o rd w a s o n c e e sta b lis h e d . P ie c e m e a l a d ju s tm e n t— a n u n s a tis fa c to r y
c o m p ro m ise — r a th e r th a n a fu n d a m e n ta l d e te r m in a tio n o f t h e m e r its o f t h e d isp u te
r e s u lte d . B y a s k in g fo r a b o u t tw ic e w h a t t h e y e x p e c te d to g e t, th e m en u s u a lly o n th e
s p lit-e v e n g o t w h a t th e y w a n te d .” (R e v ie w o f R e v ie w s, V ol. L IV , p. 3 9 2 . 1 9 1 6 .)

55
another illustration of the point already made—arbitration is likely
to find favor with the weaker rather than with the stronger party
to a dispute. It shows a radical turn-about-face on the part of the
railway managers to favor arbitration. In the early days, when
they had nothing to fear from the men, when the employees had not
yet made use of the concerted movements, the managers did not
want any Government intervention. The employee at that time
wished to place himself under the protecting wing of the Federal
Government. Now the conditions have been reversed, and with this
reversal of conditions has come a change in the attitude of the two
contending parties.
No one has questioned the absolute dependence of a voluntary
arbitration law upon its acceptability to those to whom it is de
signed to apply. The degree of success with which this kind of
law meets will be measured directly by the regard in which it is
held by the employers and the employees, and it is doubtless true
that the usefulness of the Newlands law had passed even before
the enactment of the transportation act of 1920 put it practically out
of commission. It did not work during the railway labor troubles
of 1916 (discussed in the following chapter), and the figures pre
sented in the report of the Commissioner of Mediation and Concilia
tion on December 1, 1919, show clearly that during the recent years
of its operation the results have been disappointing.67
Mr. Doak, of the Brotherhood of Railroad Trainmen, in his tes
timony of July 25, 1919, advocated the retention of the Board of
Mediation and Conciliation.68 He thought there might be occasions
when both sides desired to have mediation, and in such cases the
Mediation Board would work with success. He did not mention
arbitration in this connection. A conference committee of the man
agers and of the men was to be the main force in the settlement of
disputes according to his plan. One should not infer from this
testimony that the railway labor men attach a great deal of im
portance to the Newlands law. Mr. Doak was speaking at a time
when Congress was considering the passage of a law to prevent
strikes, and in such a situation possibly he preferred to retain this
law rather than to fly to “ ills they know not of.” Be that as it may,
the significant fact is that no other railway labor leader at this pro
longed hearing spoke in favor of the Board of Mediation and Con
ciliation.
A plan for the settlement of railway labor disputes closely related
to that of the Newlands law has been suggested by Messrs. Barnett
and McCabe.69 They propose that a national mediation commission
be appointed for the purpose of settling any controversy that may be
submitted to it. The services of the commission are to be had when
ever a controversy threatening an interference with interstate com
merce arises and when either party to the dispute requests mediation.
Both parties must agree before anything can be done under this plan.
Practically, it is a recommendation of the plan contemplated in the
Erdman and the Newlands laws with the addition of the power of
THIRD

sta g e : t h e k ew la n d s act.

67 S ee p. 5 1 .
68 U . S . C o n g re ss. H o u s e o f R e p r e s e n ta tiv e s . C o m m itte e o n I n te r s t a t e a n d F o r e ig n
C om m erce. H e a r in g s * * * H . R . 4 3 7 8 , 6 6 th C on g ., 1 s t se s s ., p. 3 0 6 (1 9 1 9 ).
m B a r n e tt a n d M cC ab e : M e d ia tio n , I n v e s tig a tio n , a n d A r b itr a tio n in I n d u s tr ia l D is
putes! ( 1 9 1 6 ).

56 USE OE FEDERAL POWER IN RAILWAY LABOR DISPUTES.
investigation by the board. But there is to be, also, an industrial
council which meets periodically. This council is to be composed of
representatives of 10 labor organizations and of 10 organizations of
employers to be designated by the President of the United States.
From time to time the council is to recommend legislation and is to
advise the mediation board. So far as arbitration is concerned, there
is no fundamental difference between this plan and that tried by the
Newlands law. It follows that the objections that lie against the lat
ter apply also to the Barnett and McCabe proposition.
N ote.—The report of the United States Mediation and Conciliation Board
for 1916 gives a history of the arbitration under the Erdman and the Newlands
laws. (S. Doc. No. 493, 64th Cong., 1st sess.)

CHAPTER V— FOURTH STAGE: THE ADAMSON LAW.
PRELIMINARIES TO NEW LEGISLATION.

During the period in which the Newlands law was pending in Con
gress other measures looking to the same end were being considered
m one or the other branch of Congress. Seven such bills were intro
duced into the Fifty-third Congress. On April 8, 1913, Senator
Townsend, of Michigan, had introduced a bill (S. 395). In the
House of Representatives, Representative Esch, of Wisconsin, had
proposed House bill 2481 on April 14. And on June 17 Representative
Clayton, of Alabama, introduced a similar bill (H. R. 6141). No
one of these bills, with the exception of the last one mentioned, re
ceived any congressional consideration. This one, however, was acted
on favorably by the committee to which it had been referred.1 The
report did not go into any elaborate details but recommended that
the bill be passed. After the passage of the Newlands law only one
other piece of legislation of that kind was suggested in 1913. On
July 22, Representative Dyer, of Missouri, introduced House bill
7034. In 1914 the Congressional Record shows that Senate bill 4306,
House bill 13002, and House bill 18085 were proposed. In 1915
in the Fifty-fourth Congress, House bill 119 and House bill 3625 were
suggested. This ends the list of bills proposed prior to the passage of
the Adamson law. Enough has already been said in connection with
the operation of the Newlands law to show that the results of its
application left something to be desired. The law had failed to meet
the expectations of the people who had united in bringing about its
enactment. In fact, the railway employees, as said before, had modi
fied their position with reference to the settlement of disputes through
the agency of a Government commission. This modification was
shown by the new movement that was to absorb the attention of the
interested parties in the summer of 1916.
President Wilson’s part in the settlement of railway labor disputes
has already been alluded to. He was again called upon in the sum
mer of 1914 to use the prestige of his office to prevent the tie-up of
the transportation system of the country.2 In this instance 55,000
locomotive engineers and firemen in the East asked for an increase
in wages. Among the grounds upon which this increase was asked
was the novel one of the productive efficiency of new railroad equip
ment. Both sides were willing to refer the controversy to the United
States Board of Mediation and Conciliation, but they could not agree
upon the issues that were to be submitted to that board. The rail
roads proposed to present counter demands, but the men objected to
this and insisted that the arbitration should be limited to the de
Congressional Record, Vol. L, p. 2215 (June 26, 1913).
a John B. Andrews, in American Yearbook, 1914, p. 420.
1

58 USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.
mands which caused the controversy. President Wilson advised the
managers to comply with the wishes of the men in this particular.
And the managers, responding to an appeal to their patriotism in a
time of threatening war, agreed to do so. It was evident from the
beginning that any settlement reached on such a basis could, in the
nature of the case, be only temporary.
A prediction of the things that might follow this adjustment was
made in one of the magazines of the period:

The public may think that because it is so often threatened with general rail
way strikes which do not come, there is no serious danger that any ever will come.
But that is the way the people of Europe regarded the incessant talk of a great
European war, and the great European war has come. And unless legislation
is passed forbidding strikes and lockouts, at least until after there has been an
arbitration and the findings of the board have been made public, there will be a
railroad strike in this country one of these days whose consequences will be more
terrific than the public can now imagine.3

Those people who followed the bitter controversy in the summer of
1916, culminating in the passage of the Adamson law, will admit that
the public had no guaranty that it was safe from an interruption of
traffic on the railroads.
Mr. J. Kruttschnitt, chairman of the Southern Pacific Railway Co.
and president of the American Railway Association, in January, 1914,
proposed a radical change in the method of settling railroad labor
disputes.4 He said that the Government should adopt a plan similar
to that used in Canada, the so-called Lemieux Act, or the industrial
disputes act of 1907. He wanted the Newlands Act amended in five
respects: (1) Let the law apply to all employees engaged in interstate
commerce, not solely to those engaged in the train service; (2) coordi
nate the work of the United States Mediation and Conciliation Board
with that of the Interstate Commerce Commission so that wages and
rates could be adjusted to each other in some rational manner; (3)
make a strike illegal until its cause should have been investigated by a
Government commission and its findings published; (4) have the two
neutral arbitrators, as representatives of the public, appointed by the
Interstate Commerce Commission; (5) declare a lockout or a strike
illegal until after investigation and enforce this provision by appro
priate penalties.
The plan of Mr. Kruttschnitt is typical of the views of railroad
officials in general. It also expressed the attitude of a part of the pub
lic, the third party to any railroad strike. The theory upon which it
was thought this series of changes in the law would operate well is
that the pressure of public opinion is adequate to force the acceptance
of the findings of the disinterested Government commission. But this
was not agreeable to the railway labor organization.5
All the controversies adverted to and the findings of the respective
interests with reference to settlements effected showed that ultimately
a situation would arise that would call for a kind of procedure not
theretofore practiced. That occasion presented itself in the summer
of 1916, when events led to the passage of the Adamson law.
B T h e R a ilw a y A g e G a z e tte , V o l. L V I I , p. 2 5 2 (A u g . 7, 1 9 1 4 ) .
L V I, p . 8.
77.

4 Id em , V ol.
6 S ee pp. 76,

f o u r t h st a g e : t h e adam so n l a w .

NEW SITUATION TO BE MET.
ISSUES BETWEEN- THE PARTIES.

Timothy Shea, assistant president of the Brotherhood of Loco
motive Firemen and Enginemen, had announced in December, 1915,
that the brotherhoods were planning the adoption of the eight-hour
day, and that they would not arbitrate the question.6 As a result
of the plans made in 1915 the officers of the railway brotherhoods,
on January 10, 1916, presented to the members of the organizations
for their approval or rejection the question of demanding the 8-hour
day with 10 hours’ pay. The proposal was approved by the mem
bers of each of the organizations, and on March 29 the demands were
presented to the managers with a request that an answer be given
on or before April 29. It was requested that the roads join in a
collective movement for the consideration of the demands made.
The managers prepared counterdemands. On May 18 the railroads
organized the National Conference Committee of Railways. On
June 1 the representatives of the men and of the roads met in New
York City. The railway officials announced their unwillingness to
accept the demands of the men and proposed that the entire affair,
including the counterdemands made by the roads, be submitted for
arbitration, either before the Interstate Commerce Commission or
in accordance with the Newlands Act. The men rejected both these
alternatives and took a strike vote, which resulted in an over
whelming majority in favor of striking to secure their demands.
On August 9 the railroad officials asked the men to join with them
in a request for the intervention of the United States Board of
Mediation and Conciliation. The men refused to do this, their con
tention being that direct negotiation between the parties was pre
ferable to dealing through an intermediary.7 The managers then
asked the intervention of the mediation board. The United States
Board of Mediation and Conciliation, as a result of its failure to settle
the dispute, gave out in August the following statement:

After repeated efforts to bring about arbitration in the pending controversy
between the railroads and their employees in train and yard service, the United
States Board of Mediation and Conciliation was to-day advised by representa
tives of the employees that they would not submit the matters in dispute to
arbitration in any form. The employees further stated to the board that they
would not arbitrate their own demands even if the contingent demands of the
railroads were withdrawn, and also declined to suggest any other plan for a
peaceful settlement of the controversy.8

President Wilson invited both sides to meet him for a conference
in Washington. At that time he proposed to the representatives
of the two sides that the 8-hour principle be accepted and that a
commission be appointed by him to investigate the demand for time
and half for overtime, the second of the two principal demands
made by the men. The employees accepted this suggestion, but the
railroad officials objected to giving the 8-hour day before an in
vestigation was made.9
The Railway Age Gazette, Vol. LIX, p. 1163.
For above facts, see Report of the U. S. Eight-Hour Commission, pp. 7-9.
S. Doc. No. 549, 64th Cong., 1st sess., p. 97.
Congressional Record, Vol. LIII, pp. 33335-13337 (Aug. 29, 1916). (In address by
the President of the United States.)
6
7
8
9

USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

While the negotiations with the President were in progress the
brotherhood leaders declared a nation-wide strike to begin on Sep
tember 4.910 The men, however, promised the President that if Con
gress should enact a law giving them the 8-hour day as the President
had proposed, they would call off the strike.
MESSAGE OF PRESIDENT WILSON.

Accordingly, on August 29 President Wilson appeared before
Congress and asked the immediate passage of a law to prevent the
threatened strike.9 In justification of his proposal of the 8-hour
day the President said:

It seemed to me, in considering the .subject m atter of the controversy, that
the whole spirit of the time and the preponderant evidence of recent economic
experience spoke for the 8-hour day.

The legislation asked for by the President covered five points:
(1) An increase in the number of members of the Interstate Com
merce Commission so that it could deal adequately with the busi
ness placed upon it; (2) the establishment of the 8-hour day for the
train operatives; (3) authority for the President to appoint a com
mission to observe the operation of the 8-hour day and to make a
report thereon, without recommendations; (4) approval by Con
gress of an increase in rates by the Interstate Commerce Commis
sion should the operation of the new law make it necessary; (5) an
amendment to the Newlands law making it illegal to call a strike
or a lockout pending an investigation of the controversy by a Gov
ernment commission.
PASSAGE OF THE LAW.

In the House of Representatives on August 31, Representative
Adamson, of Georgia, reported a bill (H. R. 17700) to establish an
8-hour day for all train operatives working on trains doing an inter
state business and to authorize the President to appoint a commis
sion to investigate the operation of this law.11 This bill, as will be
seen, contained only two of the five recommendations made by
President Wilson. The Committee on Interstate and Foreign Com
merce of the House, on September 1, reported the bill favorably.
This bill as recommended by the committee, was identical with the
original which Mr. Adamson had drawn, excepting for the change
of a few words that did not affect the principle involved.12 Imme
diately upon the filing of the report of the committee a debate upon
the measure was precipitated.
Representative Sterling, of Illinois, proposed to amend the bill
so that, in the event of failure to effect a settlement through the
mediation board, the President should appoint a commission con
sisting of four representatives from each side and of three neutrals
to investigate the cause and to make a report of the controversy. A
strike was to be declared illegal pending the filing of the report of
the commission.13
9 Congressional Record, Vol. LIII, pp. 13335-13337 (Aug. 29, 1916).
the President of the United States.)
10 John B. Andrews, in American Yearbook, 1916, p. 434.
11 Congressional Record, Vol. LIII, p. 13540.
12 Idem, p. 13609 (Sept. 1, 1916).
13 Idem, p. 13603.

(In address by

FOURTH STAGE*. THE ADAMSON LAW.

The speeches made on the proposed measure ranged all the way
from approval to a violent attack upon the President for having
yielded to the railway brotherhoods. Representative Harrison, of
Mississippi, expressed the former view:

This strike must be averted ! * * * If we pass this rule and the bill, the
consideration of which it calls for, which is, after all, legislation to meet an
impending emergency, I believe that this strike will be averted and the interests
of the American people safeguarded and protected.14

Representative Gillett, of Massachusetts, represented the other
view:

One hour, of Grover Cleveland or Theodore Roosevelt would have settled it.
We needed a President of courage and resolution, who would listen to the voice
of justice rather than of expediency, whose eye would look to permanent results
and not to the coming election. * * * I believe this is preeminently a case
for arbitration, and I am not willing, under threats, to sanction a settlement
whose justice this House is not allowed time to investigate.15

These two illustrations are representative of the opposite positions
taken by the Members of the House. The bill, however, on Septem
ber 1, the day it was reported, passed the House by a vote of 239
to 56.16
On August 31 the Senate Committee on Interstate Commerce held
hearings on a number of bills in connection with the threatened
strike.17 In the main the discussion in the Senate centered on the
recommendations the President had made to Congress. The railway
brotherhoods, the managers, and the general public had opportunity
to be heard on the measures. Each of the brotherhood chiefs indi
cated a desire to have the Adamson bill passed by the Congress.18 All
the representatives of labor objected to the suggestion that a strike
should be postponed until after the commission had investigated the
controversy. Mr. Gompers said that such a provision would serve
only to give the managers time in which to prepare for the strike
by the employment of strike breakers, thus defeating the men.19
For the railways, among others, Mr. R. S. Lovett, chairman of
the executive committee of the Union Pacific Railway, testified. He
defended the action of the managers in their negotiations, emphasiz
ing the responsibility of the roads to the public, to the stockholders,
and to the unorganized railway labor. If the law were enacted he
insisted that a provision be incorporated making a strike unlawful
after the promulgation of a finding and decree by a Government com
mission which has investigated the controversy:

Leave the men free^ to quit whenever they like—all the individual free
dom of action they have to-day. But put upon these four men, sitting in this
room, some sense of responsibility to the public, by providing that after such
commission has made its determination, no man shall issue a strike order or
advise other men to quit.20

As a result of the hearings, Senator Newlands, of Nevada, for the
committee, on September 1 introduced a bill (S. 6981, 64th Cong.),
which later in the day was favorably reported, to establish the
14 Congressional Record, Vol. LIII,
15 Idem, pp. 13587, 13588.
16 Idem, p. 13608.
16 Idem, p. 13608.
17 S. Doc. No. 549, 64th Cong., 1st
18 Idem, p. 25.
19 Idem, pp. 61, 62.

Idem, p. 77.

p. 13580.
sess., p. 5-15,

62 USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.
8-hour standard workday in interstate transportation. This was
practically the same as House bill 17700, referred to above, excepting
that in this bill it was made a misdemeanor for any person to obstruct
the movement of trains, and the Interstate Commerce Commission
was empowered to fix the wages of railway employees. The latter
clause was the* Underwood amendment.
But, in the meantime, the bill that had passed the House was intro
duced in the Senate. The debate in the Senate was spirited through
out September 1 and 2, the arguments in the main being along the
lines as those of the House, to which reference has already been
made. However, in the Senate there was debate upon the amend
ment which would have given the Interstate Commerce Commission
power to fix wages for the railway employees. On September 2
the bill was adopted by the Senate with a vote of 43 against 28. It
was passed in the form in which the House had already adopted it.21
With the approval of the President on September 3 the law, known
as the Adamson law, was enacted.2223
PUBLIC OPINION ON THE LAW.

As was to have been expected, the passage of the Adamson law was
injected into the political campaign that followed its passage. The
statements made with reference to the act are so hopelessly involved
in the political feelings of the men who spoke on it that an analysis
of them would be of little value even if a satisfactory one could be
made. The magazines of the time were divided in the attitudes
which they maintained toward the law. One can generalize, how
ever, to the extent of saying that in most quarters the brotherhoods
were severely condemned for “ forcing the law upon Congress.” The
Nation regarded the enactment of the law under the conditions sur
rounding its passage a hold-up of Congress and expressed the feeling
that the averting of the strike was probably secured at too high a
price.28
The Independent contended that there was no divine right on the
part of the employees to organize and advance their own interests
without regard to the effect on the other members of society. The
right of the public, so it said, far outweighed the right of any par
ticular group of people. And it was suggested that the people should
force every contentious group to recognize the paramountcy of the
general good.24*
The Bailway Age Gazette characterized the passage of the Adam
son law as the 46triumph of mobocracy.” It compared the Brother
21 Congressional Record, Vol. LIII, p. 13655.
22 Idem, p. 14158 (Sept. 8 , 1916).
23 “ The whole country will know that Congress

has been the submissive victim of a
hold-up * * *. Whether the averting of the strike was worth such a sacrifice of
the Nation’s rights, is a question upon which we leave it to patriotic Americans to
pass their own judgment.” (The Nation, Vol. CIII, p. 213. Sept. 7, 1916.)
24 “ There is no divine or moral or natuial right to organize, or to control the lives of
men, or to do business, or to further the interests of a class in defiance of the general
will of the people organized as a sovereign State.
“ Whenever any body of men, in overweening confidence, asserts a right and proceeds
by violent or other unlawful methods to carry out' its purposes,, the duty of good citizens
is absolutely clear. The right of the public to enjoy civilized order, as Chairman Straus
of the Public Service Commission admirably put it the other day, is the supreme right*
At all costs it must be maintained, by overwhelming force, if necessary.” (The Inde^
pendent, Vol. LXXXVIII, p. 6 (Oct. 2, 1916).)

FOURTH STAGE : THE ADAMSON LAW.

hood leaders to the leaders of the French Revolution and pictured
them as imposing their wills upon the whole American people.25
A referendum taken by the Chamber of Commerce of the United
States in June, 1916, showed the feeling of the business interests of
the country toward the impending strike. In that referendum the
vote was more than 97 per cent in favor of an investigation of the
railway labor situation by the Interstate Commerce Commission.26
Later, in a referendum vote taken in February, 1917, more than 98
per cent voted in favor of requiring Government investigation before
the ordering of a strike or a lockout on a railroad. More than 95
per cent voted to give the public, as having paramount interest, a
majority representation on any investigation commission. It was
also voted to recommend to Congress the establishment of a statistical
division of the Interstate Commerce Commission to study and to
compile statistics as to wages and as to conditions of service on the
railroads. These statistics were to be made available for the use of
the investigation commissions.27
RESPONSIBILITY FOR PASSAGE OF THE LAW.

As to the responsibility of the labor organization for the passage
of the Adamson law, Mr. W. S. Carter, president of the Brotherhood
of Locomotive Firemen and Enginemen, testifying before a com
mittee of Congress in January, 1917, said:
I want to say that at no time during the negotiations with the managers
committee, at no time when we were before the President of the United States
or before Congress, did we invite legislation, but we did not hesitate, and I do
not hesitate to say here that when we were asked if the Adamson law were
enacted if it would prevent a strike we said “ Yes.” 28

Mr. Warren S. Stone, president of the Brotherhood of Locomotive
Engineers, in his testimony of September 23, 1919, at a Senate hear
ing, insisted that the railway labor men did not ask the passage of
the Adamson law; they only consented to its passage. He said:

But it was not our law ; we did not have anything to do with the framing of
i t ; we did not want it, and it was simply choked down our throats as a settle
ment of the case * * * and it never tasted good, and it does not taste
good yet. I want to make that clear.29

Similar statements have been made from time to time by the other
leaders of the railway brotherhoods as they had occasion to express
themselves on the Adamson law.
President W. G. Lee, of the Brotherhood of Railroad Trainmen, in
answer to a question as to whether he had ordered a strike prior to
the passage of the law, replied:

Absolutely; and now I wish to God that, regardless of the Adamson law, I
had never recalled it.30

25The Railway Age Gazette, Vol. LXI, p. 394 (Sept. 8 , 1916).
Special Bulletin, June 16, 1916.
Committee on Interstate and Foreign
Commerce. Hearings on * * * H. R. 19730, 64th Cong., 2d sess., p. 107,
29 U. S. Senate, 6 6 th Cong. Committee on Interstate Commerce. Hearings on S.
2906, The Prevention of Strikes, pp. 47, 51.
30 U. S. Congress. House of Representatives. Committee on Interstate and Foreign
Commerce, Hearings on * * * H. R. 19730, 64th Cong., 2d sess., p. 71.
26 Chamber of Commerce of the United States.
27 Idem, Special Bulletin, Feb. 12, 1917.
28 U. S. Congress. House of Representatives.

USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

WHY THE BROTHERHOODS REFUSED ARBITRATION.

Mr. Carter, in January, 1917, prepared what is, perhaps, the most
complete statement of the position of the men as to why they had
refused to accept arbitration with the managers.31 He gave six rea
sons for the position taken: (1) The roads had manufactured a pub
lic opinion that would have been hostile to the men; (2) the stand
ard of the United States Board of Mediation and Conciliation for
the selection of neutral arbitrators had proved in the Nagel case to
be unfair and partial; (3) the statistical evidence presented by the
roads, although partisan and not scientific, would have overwhelmed
the neutral arbitrators; (4) the influence of precedent would have
operated against the men; (5) “ the railroads, while proposing
arbitration, refused to permit about 75 of the smaller roads to
participate in the arbitration. Where these roads believed that
the small number of employees made it possible for them to win
a strike they refused to delegate authority to the railroads’ com
mittee1to include them in the arbitration. The employees were not
willing to arbitrate for only the larger roads. Furthermore, the
railroads refused to permit the locomotive hostlers of about 18 roads
to participate in the proposed arbitration. Also, the railroads re
fused to include in their proposed arbitration white foremen, brakemen, and hostlers on many railroads and no colored employees. No
Negro employee was to benefit by the arbitration” ; (6) the award
would have been administered by the managers in accordance with
their own interpretation of its meaning.
Most of these objections have been alluded to already in other con
nections. The objections stated in No. 5 have been given in Mr.
Carter’s own words, because they should be examined with more
care. First, as to the failure of the1railroads to include the smaller
roads in the arbitration. Mr. Elisha Lee, for the conference com
mittee of the railroads, said that some of these roads had been un
willing to enter the arbitration; the employees on some of them had
not wished to enter; and on many of them the managers had agreed
that, in the settlement with their own employees, they would abide
by the result of the arbitration. Mr. Lee said that the conditions
were quite different on the smaller roads from those on the larger
roads and this in itself justified the course that had been followed
by the managers.32
The altruism of Mr. Carter’s objection that the managers did not
include certain classes in the proposed arbitration, prominent among
which was the Negro, has been questioned in view of the fact that
none of the four leading railway brotherhoods at the time this claim
was made would admit Negroes to membership in their ranks.33
Considering the question from all aspects, it seems that the railroad
officials recognized that a nation-wide concerted movement stood
every chance to defeat the managers if a strike were called. For that
reason they were anxious to have the trouble arbitrated. On the other
hand, the men recognized the powerful economic weapon they had in
the concerted movement, and they were unwilling to exchange this
31 Bui. No. 1, Publicity Dept. Brotherhood of Locomotive Firemen and Enginemen, in
Locomotive Firemen and Enginemen’s Magazine, Vol. LXII, p. 14 (Jan, 15, 1917),
32 S. Doc. No. 549, 64th Cong., 1st sess., pp. 81, 82.
«»U. S. Industrial Commission, Report, Vol, IV, p. 118 (1900),

FOURTH STAGE! THE ADAMSON LAW.

for a method which had not given them all they wanted in the past.
Both sides, after having reached a conclusion as to what would best
serve their purposes, readily found reasons which they presented to
the public in justification of the positions assumed by them. This is
not to impugn the motives or the integrity of the men on either side.
But, serving in the capacity of counsel to themselves, they presented
their respective cases in the light that would best serve the pur
pose they had in mind, i. e., winning out in the contest. It appears
that this was not an instance in which the conclusion was reached as
a result of weighing the evidence in the scales of justice, but rather
in the practical scales of expediency.
VIEWS OF UNORGANIZED RAILWAY EMPLOYEES.

The railway laborers who were not members of the brotherhoods
did not favor the passage of the Adamson law. In July a petition
was started by these employees as a protest against an increase in
wages for the members of the brotherhoods unless wages for the un
organized employees were also increased. They wanted to share in
the good fortune that was to come to their fellow workers. This pe
tition was presented to President Wilson with nearly 100,000 signa
tures. The petition said:

We should not be made to suffer for the purpose of obtaining an increase
of pay (for that is the sum and substance of the demands) of that 16 per cent
already receiving wages far in excess of the average received by us, the 84
per cent. We appeal to the sense of justice of the American people, of whom
we are and with whom we rest our case, shall this injustice be permitted.34

On December 5, 1916, a petition from the so-called 80 per cent
was sent to Senator Newlands.35 The petition asked: (1) That a
Government commission make a thorough investigation of hours of
service and the wages paid to all railway employees; (2) that this
commission be empowered to fix the wages paid railway men; (3) that
in order to prevent strikes the law should provide compulsory arbitra
tion. Similar petitions were presented from others who claimed to
represent the 80 per cent.36
Bepresentatives of organized employees contended that these peti
tions had been signed by the unorganized employees at the direction
of the managers and through fear that they would lose their posi
tions if they refused to sign,37 but no proof was offered in support
of this statement.
BROTHERHOODS AND THE RIGHTS OF THE PUBLIC.

The report of the Straus commission which arbitrated the con
troversy in the East in 1912 had, as indicated, given a great deal of
consideration to the interests of the third party, the public, in contro
versies between the roads and their employees. In the earlier period
the leaders of the brotherhoods were ready to admit the priority of
the public interest in such controversies. As recently as 1913 Mr.
A. B. Garretson, president of the Order of Railway Conductors,
34 The Railway Age Gazette, Vol. LXI, pp. 251, 252, 338.
35 Congressional Record, Vol. LIV, p. 37 (Dec. 6 , 1916).
36 Idem, pp. 38, 137 (Dec. 6 , 8 , 1916).
37 S. Doc. No. 549, 64th Cong., 1st sess., p. 29.

79994°—22----- 5

USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

said that the public had an interest.38 He went so far' as to agree
that the interests of the public, where threatened by a strike, were
as great as those of the men and of the managers, and that the pub
lic should have representation on the boards of arbitration. But,
Mr. Garretson held, the public did not have a right in the case unless
there was some danger to the public. This would seem to have been
an admission of the public to a right in all strikes, because a strike
without the possibility of inconvenience to the public and of inter
ruption of traffic would be no strike worth calling.
Whatever may have been the position of the railway employees in
the early days of labor difficulties, some of the labor leaders have since
affirmed that the public had nothing to do with a proposition of this
nature in which it was not involved as one of the parties directly
connected with the dispute.39
SETTLEMENT THROUGH THE COUNCIL OF NATIONAL DEFENSE.

According to its provisions the Adamson law was to become effec
tive on January 1, 1917. When a lower court declared the law un
constitutional the men again threatened to go out on strike to secure
the demands made originally.40 The strike was to begin March 17
at 7 p. m. President Wilson appointed a committee representing the
Council of National Defense to settle the trouble. The committee
consisted of Franklin K. Lane, Secretary of the Interior; William
B. Wilson, Secretary of Labor; Daniel Willard, president of the
Baltimore & Ohio Railroad; and Samuel Gompers, president of the
American Federation of Labor. The committee secured a postpone
ment of the strike until March 19. On that day a settlement was
reached. The terms of the agreement gave the men what the Adam
son law had provided for them. This law was still in the courts.
Thus, the men finally secured the eight-hour day without getting it
through legislation. But the passage of the Adamson law probably
made it easier to force the managers to accede to this solution. How
ever that may be, it remains true that this trouble was settled by
mediation, a mediation proceeding greatly influenced by the fact
that the European War made it absolutely necessary to get together
on some working basis. But this settlement was in no manner af
fected by the United States Board of Mediation and Conciliation
established by the Newlands law.
ADAMSON LAW IN THE COURTS.

In the latter part of 1916 the railroads began many suits in the
courts for the purpose of testing the validity of the Adamson law.
38 “ The pUbiic has an interest, bear in mind. We all recognize that the public has
an interest whenever the public interest is threatened. As long as the public interest
is not threatened, then, it is a private war between employer and employees, but the
minute that the private war threatens the public, the public comes into exactly the
same relation to it as we do, and their rights are as great as ours; and we say that
they are entitled to just the same representation on this board that the other interests
are.” (S. Rept. No. 72, 63d Cong., 1st sess., pp. 44, 45.)
89 The Railroad Trainman sa id : “ * * * It seems unnecessary to say that the
Trainman does not agree with the notion that the public has a right to be represented
in a presentation of a case before a board of arbitration between the railroad companies
and their employees any more than it has a right to such representation on any board
of arbitration with the business of which it has nothing to do.” (The Railroad Trainman,
Vol. XXXIII, p. 91 (January, 1916).)
40 Report of the Eight-Hour Commission, p. 10 (1918),

FOURTH STAGE: THE ADAMSON LAW.

The Attorney General of the United States made an agreement with
the railroads whereby one of these was to be a test case before the
Federal Supreme Court. The managers agreed to keep their books
in such manner that the men could be paid their back wages from
January 1,1917, should the law be upheld by the court.40
WILSON v. NEW.

The case selected to test the law was Wilson v. New.41 Arguments
in this case were heard on January 9 and 10, and on March 19, the
day upon which the controversy had been settled by the Council of
National Defense, the Supreme Court of the United States handed
down its decision upholding the validity of the Adamson law.
Mr. Chief Justice White, in giving the decision of the court, upheld
the law as an emergency measure. The question which the Chief
Justice asked as a basis for the decision was:

* * * * Did it [Congress] have the power in order to prevent the interruption
of interstate commerce to exert its will to supply the absence of a wage scale
resulting from the disagreement as to wages between the employers and em
ployees and to make its will on that subject controlling for the limited period
provided for?

Mr. Chief Justice White said that he would pass over the question
of the authority of Congress to establish an 8-hour day. That was so
clearly sustained, he said, as to make it indisputable.

We are of opinion that the reasons stated conclusively establish that from the
point of view of inherent power the act which is before us is clearly within the
legislative power of Congress to adopt, and that in substance and effect it
amounted to an exertion of its authority to compulsorily arbitrate the dispute
between the parties by establishing as the subject m atter of that dispute a legis
lative standard of wages operating and binding as a matter of law upon the
parties * * *, a power none the less efficaciously exerted by direct legisla
tive act instead of by the enactment of other and appropriate means providing
for the bringing about of such result.
The capacity to exercise the private right free from, legislative interference
affords no ground for saying that legislative power does not exist to protect the
public interest from injury resulting from a failure to exercise that private
right.

In this particular instance, the Chief Justice said, there was no
abuse of the power such as to constitute a denial of the equal protec
tion of the laws, or a*violation of the due process clause of the Con
stitution.
Mr. Justice Day, in his dissenting opinion, agreed that Congress
could fix the wages of railroad employees doing an interstate traffic,
but he considered the fixing done in the Adamson law, without any in
vestigation, a denial of the due process clause and thus a violation of
the fifth amendment of the Constitution. He was not prepared, he
said, to admit that Congress could compel arbitration, as held in the
majority opinion of the court.
Justices Pitney and VanDevanter dissented on the ground that the
legislation had no substantial relation to interstate commerce and was
therefore invalid. Mr. Justice McKeynolds also said that this did not
constitute a regulation of commerce.
40 Report of the Eight-Hour Commission, p. 10 (1918).
41243 U. S. 332.

USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

ATTITUDE OF INTERESTS AFFECTED.

The railroad interests were pleased by the decision of the court.
Some of them regarded this as the entering wedge for the enactment
of a compulsory arbitration law. The Railway Age Gazette, on
March 23, commended the decision but expressed doubt as to whether
the Members of Congress would have the courage to meet the needs
of the time.42
But the joy of the managers was matched by the keen disappoint
ment of the railway employees. Mr. Gompers, for the workers,
expressed his disappointment at this turn of affairs. So bitter was
his regret that he advocated curbing the power of the Supreme Court,
which, he considered, had played into the hands of the employing
class.43
42 “ The important question now is, will our politics-ridden Congress have the patriot
ism and the courage to enact the legislation for the passage of which the Supreme Court
has opened the way, and which the brotherhoods have so conclusively demonstrated is
vitally necessary for the protection of the public?” (The Railway Age Gazette, Vol.
LXII, p. 612.)
43 a The court’s decision came as an anticlimax too long delayed to be helpful in the
purpose for which the law was enacted. Has the court permanently abandoned the field
of justice, to play into the hands of the employing class, the wealth producers of our
country, by taking away from the working, people the only effective power they possess
to compel a decent regard for their rights, their freedom, the American standard of life?
“ Would it not be well for the Nation to consider the necessity of curbing the assump
tion of power of the Supreme Court rather than to supinely permit the court to ‘ curb ’
the freedom of the masses * * * the workers?” (American Federationist, Vol.
XXIV, p. 291 (April, 1917).)

CHAPTER VI.—PERIOD OF WAR ADMINISTRATION OF
RAILROADS.

The entrance of the United States into the European war brought
with it peculiar problems in the railway labor field. An examina
tion of the period discloses a commendable zeal and a marked de
gree of success in the conception and in the application of devices to
remove all possible friction between the railroad officials and the em
ployees. This was, accurately speaking, not so much a period in
which disputes were settled as one in which difficulties were prevented
from coming into existence.
An act of Congress approved August 29, 1916,1 had authorized the
President of the United States to take over the transportation system
of the country and operate it in the event of war. Acting by virtue
of the authority so conferred upon him, President Wilson, on De
cember 26, 1917, issued a proclamation that he would take possession
of the railroads of the country on December 31.2 At the same time
he announced the appointment of Secretary McAdoo, of the Treas
ury, as Director General of Railroads.
WAGE DETERMINATION.

Immediately prior to this proclamation of the President there had
been a movement for increases in wages of the railroad employees.
On December 11, 1917, the conductors and trainmen demanded an
increase and requested that they be given an answer within 30 days.3
Before the expiration of the 30 days and, consequently, before an
answer had been given to the workers, the Government took over the
operation of the railroads as a war emergency. Subsequently other
employees of the railroads asked increased pay.4
In General Order No. 1, given out December 29, 1917,5 Director
General McAdoo had asked that all the officers and the employees con
tinue in the performance of their duties just as though there had been
no change in the control of operation of the roads. One of the earliest
acts of the newly appointed Director General was the promise given
the railway labor leaders that their demands for increased pay would
be investigated and that any increase allowed should be retroactive
to January l.6 He announced his plan of procedure in the wage mat
ter in General Order No. 5, given out January 18, 1918.7 In this
Pub. Law No. 242, 64th Cong.
U. S. Railroad Administration. Bui.
The Railroad Trainman, Vol. XXXV,
Idem, p. 205.
U. S. Railroad Administration. Bui.
Brotherhood of Locomotive Firemen
p. 11 (Jan. 15, 1918).
7U. S. Railroad Administration. Bui.
1
2
3
4
5
6

No. 4 revised, pp. 6-9.
p. 205 (Mar., 1918).
No. 4 revised, pp. 145, 146.
and Enginemems Magazine, Vol. LXIV, No. 2,
No. 4 revised, p. 148.
69

USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

order he announced the appointment of a commission of four men
whose duty it was to make a thorough investigation into the question
of wages and to make recommendations for the guidance of the Di
rector General. The personnel of this board was such as to command
the respect and the confidence of all the parties concerned. The mem
bers were Franklin K. Lane, Secretary of the Interior; Charles C.
McChord, member of the Interstate Commerce Commission; J. Harry
Covington, Chief Justice of the Supreme Court of the District of
Columbia; and William E. Willcox, of New York.
This action by Mr. McAdoo met with the hearty approval of the
representatives of the railway brotherhoods. In March, before any
decision had been handed down, the Brotherhood of Locomotive En
gineers’ Journal said :

* * * The Wage Commission, it seems to us, is an excellent one, and we
look for as much increase in wages as the real needs require and in harmony with
the increased cost of a decent living condition.
We believe that the President and the Director General desire to be fair, and
that the Wage Commission will bring a liberal report on needed increases in
wages, and the future of the workingman has an agreeable look.8

The other magazines published by the railway brotherhoods com
mented in like manner upon the new agency.
The Wage Commission, after a painstaking and careful investiga
tion covering a period of about four months, made its report to the
director general.9 Thereupon Mr. McAdoo, on May 25, 1918, issued
General Order No. 27.10 A substantial increase in wages was granted.
The year ending December 31, 1915, had been taken by the Wage
Commission as the base year upon which the increases were com
puted. And the increases werd relatively larger for the employees
getting^the lower rates of pay.
The Director General carried out the recommendations of the Wage
Commission with very few changes. In the preamble to General
Order No. 27, putting these wage recommendations into effect, he men
tioned specifically, however, the issue as to the number of hours con
stituting a day. The Commission had expressed the judgment that,
in view of the war emergency, the hours of service on the roads should
not be at that time changed. Mr. McAdoo further stated that—
I am convinced that no further inquiry is needed to demonstrate that the
principle of the basic 8-hour day is reasonable and just and that all further
contentions about it should be set at rest by a recognition of that principle as a
part of the decision.
Recognition of the principle of the basic 8-hour day in railroad service* is,
therefore, hereby made.11

The railroad employees were much pleased at the outcome of the
investigation by the Wage Commission. One aspect of the report,
however, was a disappointment to some of them. The selection of
December, 1915, as the basic date upon which to calculate the in
creases meant that the commission had disregarded the standardiza
tion of wages which had come from the concerted movements of the
employees during the years 1916 and 1917.12
8 Brotherhood of Locomotive Engineers’ Journal, Vol. LII, No. 3, pp. 239, 240.
9 U. S. Railroad Administration.
Report of the Railroad Wage Commission, Apr. 30,
1918.
10 U. S. Railroad Administration.
Bui. No. 4 revised, p. 198.
11 Idem, p. 199.
12 U. S. Railroad Administration. .Annual report, 1918-1919, Division of Labor, pp.

71
The Director General commented upon the intricacy of the problem
of doing justice to the 2,000,000 railway employees. The numerous
supplements, addenda, recommendations, and interpretations to Gen
eral Order No. 2713 indicate the difficulty the Railroad Administra
tion experienced in adjusting inequalities in the wage scale.
In order to have the machinery to settle the many wage questions
that might arise thereafter the director general in this general order
announced the creation of a Board of Railroad Wages and Working
Conditions. Recommendations of this new board were submitted to
the Director General for approval before they could be put into effect.
In circular No. 31, June 1,1918, Mr. McAdoo outlined the duties of
this board as follows:
PERIOD OF WAR ADMIHISTRATIOH.

It shall be the duty of the board to hear and investigate matters presented by
railroad employees or their representatives affecting—
(1) Inequalities as to wages and working conditions, whether as to individual
employees or classes of employees.
(2) Conditions arising from competition with employees in other industries.
(3) Rules and working conditions for the several classes of employees, either
for the country as a whole or for the different parts of the country.
The board shall hear and investigate other matters affecting wages and con
dition of employment referred to it by the Director General.14

The. last of the supplements to General Order No. 27 granting an
increase in wages was issued in the early months of 1919. The direc
tor general at that time announced that this action completed the
“ war cycle ” of wage increases and that any further increases would
“ have to be considered in the light of the new conditions.” 15*
Early in 1919? and especially in the month of August of that year,
there was a senes of unauthorized strikes on the roads. President
Wilson, through the Director General, refused to order advances in
wages until facts were available on which to determine whether or
not the then price level was a permanent one. Some modifications,
however, were made in the way of removing inequalities.15 Mr.
Carter, in charge of the division of labor, attributed these unauthor
ized strikes to the fact that the men did not realize that their con
troversies could be handled through his office in such a way as to get
justice.17 His division did succeed in settling many of the troubles.
It should be remembered that even these unauthorized strikes came
after the signing of the armistice and when the urge of patriotism no
longer acted as a controlling force.
Director General Hines has insisted that there has been “ a great
deal of misconception ” as to the amount of wage increases resulting
from the machinery put in operation by the Railroad Administra
tion.18 According to Mr. Hines the average increase over the 1913
and 1914 level of wages was approximately 100 per cent, whereas
that for the workers in the iron and steel industry for the correspond
ing period was* 120 per cent. He explained the few abnormal cases,
13 U. S. Railroad Administration.
General Order No. 27, with supplements, addenda,
amendments, and interpretations (1919).
14 U. S. Railroad Administration.
Bui. No. 4 revised, p. 372.
15 Report to the President by W. D. Hines, Director General of Railroads, for 14 months
ending Mar. 1, 1920, revised-ed., p. 18.
17 Annual Report of W. D. Hines, Director General of Railroads, 1919, Division of
Labor, p. 81.
18 Report to the President by W. D. Hines. Director General of Railroads, for 14 months
ending Mar. 1, 1920, revised ed., p. 19.

72 USE OE FEDERAL POWER IN RAILWAY LABOR DISPUTES.
both of high wages and of low wages, as a result of the application
of general rules to the different lines of work, a part of which work
had not been standardized.
The analysis and the figures presented by Mr. Hines are of interest
in connection with the assertion, frequently made, that the Govern
ment purchased peace on the roads by giving unwarranted increases
in wages. Mr. Hines’s conclusions indicate that the comparative
freedom from labor disturbances during the war period can not be
explained by the payment of unreasonable wages.
His statement has been verified by the following statement, which
appeared on July 20,1920, in the decision of the United States Rail
road Labor Board, created by the transportation act of 1920:

It lias been found by this board generally that the scale of wages paid' rail
road employees is substantially below that paid for similar work in outside
industry, that the increase in living cost since the effective date of General
Order No. 27 and its supplements has thrown wages below the prewar standard
of living of these employees, and that justice, as well as the maintenance of an
essential industry in an efficient condition, require a substantial increase to
practically all classes.19

A statistical presentation showing the wages paid prior to the
period of Federal control, those allowed during that period, and those
granted by the Railroad Labor Board,20 further bears out the con
tention of Mr. Hines.
RELATIONS WITH ORGANIZED LABOR.

From time to time the Director General of Railroads made new
regulations and issued new orders setting forth the policy of the
administration. General Order No. 8, issued February 21, 1918,
was one of the most important of the kind under discussion.21 This
order was issued in part to correct wrong impressions given in the
earlier ones concerning the question of a change in wages, etc. But
by far the most significant part of the new order was section 5. Here
the Director General declared that no discrimination of any kind
should be made against a worker because of his membership or non
membership in a labor organization. This, it will be recalled, was
the essence of section 10 of the Erdman law, the section declared un
constitutional by the Supreme Court in the case of Adair v. U. S.22
The brotherhoods approved such a ruling and the result was to
confirm them in their belief that the Railroad Administration would
give them a square deal.
Mr. Carter, the director of the Division of Labor, said that this
resulted in the addition to the ranks of union labor of many railway
employees who had not theretofore been permitted to affiliate with
organized labor.23
General Order No. 8 also directed that, where possible, excessive
hours of work be avoided and that proper safety appliances be used
on the railroads.
U. S. Railroad Labor Board. Decision No. 2, p. 7.
U. S. Railroad Labor Board. Wage Series, Report No. 1 (August, 1920).
U. S. Railroad Administration. Bui. No. 4 revised, p. 167.
See pp. 28, 29.
U. S. Railroad Administration. Annual report, 1918-1919, Division of Labor, p. 7.

19
20
21
22
28

PERIOD OF WAR ADMINISTRATION.

RAILWAY ADJUSTMENT BOARDS.

A great deal of the dissatisfaction of the railway workers in the
past has arisen from the interpretation of the awards made by arbi
tration boards and of the agreements entered into by the contesting
parties. One of the objections to arbitration which the brotherhood
leaders had urged was that the employer alone assumed the role of
the interpreter. In Order No. 13 Mr. McAdoo approved machinery
which was designed to handle matters of interpretation and the ad
justment of personal differences.24 He indorsed an agreement entered
into by the regional directors and the representatives of the four
brotherhoods. The adjustment board was to consist of eight men,
four to be selected by and paid by the railroads and four to be
selected by and paid by the employees.
This board was to assume the functions formerly vested in the'
committee of eight in disputes arising from the interpretation of
the 8-hour law; to decide controversies growing out of the in
terpretation of wage agreements (excepting those passed upon by the
Railroad Wage Commission) ; to adjust all personal differences and
disputes arising between the men and the roads if they had failed to
adjust these through the usual conference committees of employers
and employees. The disputants could not refer a matter to the Rail
way Adjustment Board until they had exhausted all their own re
sources in an attempt to arrive at an agreement. If they were unable
to agree it then became obligatory upon them to refer the difficulty
to the adjustment board through the medium of the Division of
Labor of the Railroad Administration. A decision upon any matter
within its jurisdiction could be rendered by a majority of the board.
In case there was no majority any four of the members could refer
the controversy to the Director General of Railroads for final settle
ment.
General Order No. 29, issued May 31, 1918,25 authorized a similar
board for disputes arising between the managers and the machinists,
boiler makers, and other like classes of railway-shop labor where
organized in unions. Finally, on November 13, 1918, General Order
No. 53 26created, in like manner, a railway adjustment board to handle
the cases of the telegraphers, switchmen, clerks, and maintenanceof-way employees.
These bipartisan boards were created through agreement between
the managers and the men. Director General Hines was warranted
in calling this a recognition of the principle of collective bargain
ing. A plan like this one had been suggested by the labor leaders in
1917.27 In this case the suggestion came from the settlement by the
Council of National Defense in 1917. The railroads and the men then
agreed to set up a commission of eight, four from each side, to pass
upon controversies growing out of the application of the award.28
There seems to have been no doubt as to the successful operation
of the adjustment boards. Mr. Doak, of the Brotherhood of Rail
U. S. Railroad Administration. Bui. No. 4 revised, p. 178.
Idem, p. 300.
Idem, p. 340.
U. S. Congress. House of Representatives. Committee on Interstate and Foreign
Commerce. Hearings on H. R. 19730, 04th Cong., 2d sess., pp. 54, 55.
28 U. S. Railroad Administration. Annual Report, 1918-1919, Division of Labor, p. 12.
Also Senate hearings on S. 2906, 66th Cong., 1st sess., p. 80.
24
25
26
27

USE OE FEDERAL POWER IN RAILWAY LABOR DISPUTES.

road Trainmen, in his testimony to a Senate committee on September
24, 1919, said that there had never been a deadlock in a decision of
Adjustment Board No. 1 and that there had never been a minority
report.29 Mr. Doak was a member of this board. Mr. Hines called
the work of the boards “ eminently satisfactory.” 30 He reported that
there had been agreement in practically every instance and that on
many of the largest roads all the disagreements had been settled by
conference without having to bring them to the *attention of the
adjustment boards at all. He recommended that, following ,the
period of Federal control, this plan of the bipartisan boards be con
tinued.31
Mr. Carter was, if possible, even more enthusiastic in his report
concerning the work of these boards. He wrote:

The work of these boards demonstrates not only the advisability of the
creation of such boards, but the necessity of their continuance, either under
Federal control of railroads or thereafter. The fact that boards are bipartisan
without any “ umpire ” or “ neutral member ” and all of which members are
experts in railroad agreement matters have led both officials and employees’ to
have confidence not only in the fairness of decisions reached but as to the tech
nical ability of the members of the boards to pass intelligently upon all contro
versies submitted for decision.32
THE DIVISION OF LABOR.

In the early part of the administration, on February 9, 1918, Mr.
McAdoo created the Division of Labor, with a director of labor at its
head, as one of the five departments of his administration.33 In
charge of this division he placed Mr. W. S. Carter, president of the
Brotherhood of Locomotive Firemen and Enginemen. It was to be
his duty to advise the Director General in all matters concerning
labor and to exert his influence to bring about harmonious relations
between the employer and the employees of the railroads. The
former connection of Mr. Carter with labor movements gave him a
decided advantage in this field. His long experience with railway
labor and the confidence reposed in him by the employees augured
wdll for his success.
In addition to his work as general supervisor of all labor matters,
Mr. Carter had certain specific duties. It has already been shown
that he acted as an intermediary in bringing disputes from the con
ference committees to the railway adjustment boards in those cases
in which the conferees had not been able to reach an agreement.
One important duty of the director of the Division of Labor was
that of acting for those employees who were not represented by any
railroad adjustment board. And for some time only the members of
the four brotherhoods were so represented. Even at the end of the
period of Government control there were some employees who were
not represented on the adjustment boards. Whenever controversies
arose, between the unorganized employees and the roads on which
they worked they were instructed that they were to try to reach an
U. S. Congress. Senate. Committee on Interstate Commerce. Hearings on S. 2906,
th Cong., 1st sess., p. 78.
30 Report of W. D. Hines, Director General of Railroads, to the President for the 14
months ending Mar. 1, 1920, p. 15.
31 Idem, pp. 39, 40.
32 Annual Report of W. D. Hines, Director General of Railroads, 1919, Division of Labor,
p. 50.
33 U. S. Railroad Administration.
Bui. No. 4 revised, p. 357.
29

PERIOD OF WAR ADMINISTRATION.

agreement with the management. Failing to reach such an agree
ment, the matter was to be referred to the director of the Division of
Labor. The latter would appoint a representative of his office to try
to bring about an adjustment. As a last resort the matter was to be
referred again to the director of the Division of Labor. Personal
grievances were to be handled in the same way.34
Special agents were sent out to make investigations into com
plaints made by employees; to make arrangements for conferences
between the opposing interests; and to advise the railroad employees
on strike as to how they could present their grievances to the proper
agencies. In many instances this work was done so effectively that
the anticipated strikes did not materialize.35 This work was con
sidered highly important in that it brought the Railroad Administra
tion into close personal contact with the men and served to show them
that their welfare was properly safeguarded and that the value of
their services was fully appreciated by the authorities.
Some of the railroad executives are of the opinion that organized
labor was humored to an unnecessary extent during the period of the
war. ‘Mr. Howard Elliott, chairman of the Northern Pacific Railway
Co., in his testimony to a Senate committee on May 25, 1921, quoted
with approval an excerpt from an article by ex-President Taft. In
this article Mr. Taft criticized the administration for the passage of
the Adamson law and also for the negotiation of the national agree
ments with the railway employees. He insisted that the controversies
should have been adjusted on the railroads separately.36 Mr. Elliott
attributes much of the controversy of the present time to the work
done during the period of Federal control.
Mr. Elliott subscribed heartily to the position taken by Mr. Taft
in this respect.
But whether labor was pampered or whether the workers received
only fair play, the fact remains that during the Federal control of the
railroads labor difficulties on the roads were at the minimum, and this
spirit of cooperation undoubtedly promoted the successful prosecu
tion of the war.
84 Annual Report of W. D. Hines, Director General of Railroads, 1919, Division of Labor,
pp. 11-13. See also Railroad Administration Bui. No. 11, pp. 303, 304.
35 Annual Report of W. D. Hines, Director General of Railroads, 1919, Division of Labor,
p. 36.
86 “ The present administration, by forcing the Adamson law through, and by its subse
quent administration of the railways, enthroned the national leaders of the railway
labor organizations in power. The framing, execution, and construction of labor pro
visions and regulations in the railroad administration were largely intrusted to labor
leaders, and there was no active interest really adverse to that of the labor organizations
in the Government operation. During the war such a condition had to be endured, but
now the situation is different. The railroad executives, restored to possession of the
properties and responsible for their efficient and economic management, are seeking a
readjustment and a basis for operating the properties in which much-needed discipline
and a fairly proportionate rate of wages may be restored and maintained. They propose
that each company shall be permitted to deal collectively with the men, in its employ
and shall not be required to deal in the first instance with the national heads of labo’'
organizations. This is a real collective bargaining. The principle is that the employer
and a body of his employees shall come as near together as possible in their conferences,
so that looking into each other’s eyes and hearing each other’s voices, so to speak, they
may have a clear understanding, each of the other’s position and condition. The primary
unit of action is the shop or railroad system in which the dispute arises. This has never
been denied until now by either side.
“ Experience has shown that with full' liberty to deal with their respective employees
by themselves,, many railway executives can fully and satisfactorily adjust working
conditions, and wages, too. In such matters, local self-government is the essence of
collective bargaining and not a straw should be put in the way of it.” (Hearings on
S. Res. 23, by Senate Committee on Interstate Commerce, 67th Cong., 1st sess., p. 410,
1921.)

CHAPTER VII.—TRANSPORTATION ACT OF 1920: ESCHCUMMINS LAW.
CONGRESSIONAL CONSIDERATION FROM PASSAGE OF ADAMSON
LAW TO ENACTMENT OF LAW OF 1920.

Congress, it will be recalled, had put into the Adamson law only
two of the five recommendations made by President Wilson in his
message of August 29, 1916. In his address to Congress he recom
mended and urged the passage of a provision which would prevent
the calling of a strike prior to an investigation of the merits of the
case by a Government commission. On December 5 of that year the
President again addressed Congress on the subject:
I can see nothing in that proposition but the justifiable safeguarding by
society of the necessary process of its very life. There is nothing arbitrary or
unjust in it unless it be arbitrarily and unjustly done. It can and should be
done with a full and scrupulous regard for the interests and liberties of all
concerned as well as for the permanent interests of society itself.1

Following the address of the President a number of bills were in
troduced in the Sixty-fourth Congress for the purpose of amending
the Adamson law and the Newlands law. On December 5 Senator
Underwood, of Alabama, proposed a bill (S. 7031) to give the Inter
state Commerce Commission power to fix hours and wages for rail
way employees. Senator Townsend, of Michigan, introduced a bill
(S. 7066) to provide for the investigation of controversies affecting
interstate commerce. On December 8 Senator Hardwick, of Georgia,
proposed ( S. 7239) that the Adamson law be amended. Senator Sher
man, of Illinois, on December 13 submitted an amendment to the bill
proposed by Mr. Townsend.2 On December 14 Senator Sterling, of
South Dakota, introduced a bill (H. R. 18906) as an amendment to
the Newlands law.
The Committee on Interstate Commerce of the Senate on January
2, 1917, began hearings on tentative bills to amend the Newlands
law.3 Representatives of labor appeared before the committee and
opposed legislation along the line of compulsory investigation of dis
putes before a strike could be called. They also opposed the Under
wood amendment to give the Interstate Commerce Commission the
power to fix wages for railway employees and to establish the hours
of work for them. Mr. Doak, vice president and legislative repre
sentative of the Brotherhood of Railroad Trainmen, said that the
result of such an amendment would be to enslave the workingmen
and to deprive them of their only effective weapon.4 He said that
Congressional Record, Vol. LIV, pp. 16, 17.
Idem, p. 253.
U. S. Congress. Senate. Committee on Interstate Commerce. Government Investi
gation of Railway Labor Disputes. Hearings on Tentative Bills to Amend * * *
(1917), 64th Cong., 2d sess.
4 “ If this law goes into effect you have tied us and enslaved us, to the detriment of
these employees, and simply taken away from us,, in the interests of society, the only
weapon that we have to defend ourselves with, without giving us a recourse, possibly,
in the end.” (Idem, p, 1M .)
1
2
3

TRANSPORTATION ACT OF 1920: ESCH-CUMMINS LAW.

the Underwood amendment would be the equivalent to slavery for
the men.5 Mr. Gompers objected to any legislative action and in
sisted that the men be permitted to use their economic power in the
settlement of their differences with the managers.6
The Committee on Interstate and Foreign Commerce of the House
of Representatives also held hearings on the proposed measures.7
The representatives of labor here again objected to any legislation
by Congress. Finally, when asked what he would do about the mat
ter, Mr. Lee said that he would abolish the Newlands law as it was
no longer of any value:

Then institute instead of it a clearing house or commission consisting of,
say, four men on one side that are practical men, men out of the service,
conductors, brakemen, engineers, or something of that kind, four gentlemen
who are practical operating officers, who ought to know when they sit across
the table just what is meant when something is asked, who can pick up any
schedule now in effect upon any railroad and in a moment, aside from their
personal feelings, either for the organizations or for the railroad companies,
give a fair interpretation of it. Something of that kind, in my opinon, will
do away with practically all of the threatened strikes, even of the transporta
tion employees, and still leave it in the hands of practical men.8

Mr. Sheppard, for the conductors, and Mr. Stone, for the engi
neers, both subscribed to the views expressed by Mr. Lee.9 None
of the men wanted anything done by Congress, but said that if
something had to be done, then the action taken should be what Mr.
Lee had suggested.
Mr. Sheppard did, however, propose other action on the part of
Congress. He suggested that the roads be allowed to charge what
they wished for the hauling of freight, etc., but that everything
made in excess of 6 per cent on the investment should be divided
equally between the public and the employees. Government owner
ship, Mr. Sheppard said, would probably force this kind of solution
ultimately. This suggestion of Mr. Sheppard is of interest in its
bearing upon the later movement of the railway laborers for the
Plumb plan and especially with reference to the principle for the
adjustment of disputes contemplated by that plan.
On February 10, 1917, Mr. Newlands, for the committee, reported
favorably Senate bill 8201, which he had introduced the preceding
day.10 This bill provided that in those cases in which the United
States Board of Mediation and Conciliation failed to effect a set
tlement, the President should appoint two additional members—
representing the railway employees and the railway officials, respec
tively—and the board thus enlarged should investigate and make a
report on the controversies. The right to strike pending the investi
gation and the rendering of the report was not to be taken from the
men, although Mr. Newlands said that he, personally, was in favor
of such a limitation.
A similar bill (H. R. 20752) was introduced in the House by Mr.
Adamson on February 5. The committee reported this bill on the
5 “ My objections and our objections to this are that it is absolute slavery and that it
discriminates.” (Idem, p. 209.)
6 U. S. Congress.
Senate. Committee on Interstate Commerce. Government Investi
gation of Railway Labor Disputes. Hearings on Tentative Bills to Amend * * *
(1917), 64th Cong4, 2d sess., pp. 239-285.
7 U. S. Congress.
House of Representatives. Committee on Interstate and Foreign
Commerce. Hearings on H. R. 19730 (1917), 64th Cong., 2d sess.
8 Idem, pp. 54, 55.
9 Idem, pp. 169, 205.

C o n g r e s s io n a l R eco rd , V o l. L IV , p p. 2 9 8 0 -2 9 8 2 .

78 USB OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.
following day.11 No action was taken on these bills in either branch
of Congress. Two other bills (H. It. 20844 and H. It. 20907) met
a similar fate. The failure to secure legislation until after the war
was due, in part at least, to the amount of business with which Con
gress had to deal as a result of the war with Germany, business that
left little time to be devoted to the legislation to prevent railway
labor controversies. Then, too, it was decided to handle the railroad
problems through the Railroad Administration during the war
period.
The Sixty-fifth Congress did pass a law, however, which seems to
apply to strikes on railroads.12 This was the enactment of Senate
bill 2356. This law made it a misdemeanor to obstruct the movement
of any train in interstate commerce during the war. Certainly a.
strike by a group of railway laborers does constitute an interference
with the movement of such trains. Senator Newlands, in answer to
a criticism that this law would, if enacted, interfere with the right
of the men to strike, replied that the legislation was not so designed
and that the Committee on Interstate Commerce did not desire to
take up the question of strike legislation at that session of the Con
gress.13
PASSAGE OF ESCH-CUMMINS LAW.

In the early part of 1919 Congress began to consider the future
status of the railroads and to devise some plan for their operation
after the anticipated peace with Germany and the automatic termina
tion of Federal control of the roads which would follow the declara
tion of peace. It is not necessary for the purpose of this study to
enter into & detailed discussion of all the bills introduced with this
end in view. Mr. McAdoo, together with other proponents of Gov
ernment operation, urged Congress to continue the Government con
trol for a period of five years.14
Representative Sims, of Tennessee, on January 7, 1919, introduced
a bill (H. R. 13707) to authorize the extension of Federal control
until 1924. Had this measure passed, the machinery for settlement
of railway labor disputes would probably have continued as under
the period of Government administration of the roads.
THE HOUSE BILL.

But Congress took no action on this important issue before having
given it lengthy and detailed consideration in its committees. The
bill which served as the basis for the hearings by the Committee on
Interstate and Foreign Commerce of the House of Representatives
was the Esch-Pomerene bill (H. R. 4378), introduced on June 2.15 A
bill embodying the so-called Plumb plan for the operation and control
of the railroads was also discussed in the hearings. This was the bill
introduced by request by Mr. Sims (H. R. 8157,66th Cong.). The sec
tion of the latter bill applying to the settlement of railway labor dis
Congressional Record, Vol. LIV, p. 2726 (Feb. 6, 1917).
Congressional Record, Vol. LV, pp. 3151, 3152, 3341 (June 1, 8, 1917).
In pamphlet, “ Extending Period of Control of Railroads,” printed for the use of
the Committee on Interstate and Foreign Commerce, H. R. 13707, 65th Cong., 3d sess,
(1919).
15 H. Rept. No. 456, 66th Cong., 1st sess., p. 1.
11

12 Pub. Law No. 39, 65th Cong.

15
14

TRANSPORTATION ACT OF 1920 : ESCH-CUMMINS LAW.

putes provided that wages should be fixed by the directors, composed
of representatives of the managers and of the men. In the event that
any dispute arose it was to be adjusted by a conference committee of
the managers and the men. If these were unable to adjust the differ
ence an appeal was to be taken to the directors. The Plumb plan,
it will be recalled, was the one approved by the members of the
railway brotherhoods. In their testimony to the House committee
they reiterated their adherence to this plan. Various other plans
were also considered by the committee.
The hearings began on July 15 and continued until September 27.
Testimony to the extent of more than 3,000 words was taken from
experts and from those especially interested in the proposed legisla
tion.16 A considerable part of the testimony concerned the question
of the adjustment of labor controversies when the railways should
have reverted to private management.
An analysis of the different proposals made to the committee
would require too lengthy a discussion for the purpose of this paper.
An examination of the testimony taken shows that all kinds of plans,
ranging from a policy of laissez faire to one in which the Govern
ment should fix the wages and determine working conditions, were
brought forward by individuals and by groups of individuals. Com
pulsory* arbitration was again defended by its adherents and was
attacked by the labor leaders.
After giving consideration to all the testimony taken and deliberat
ing at length the committee, through Mr. Esch, presented House bill
10453 and submitted a report to accompany it.17 In this report the
committee analyzed the bill and presented the reasons for its passage.
Title III was termed “ Disputes between carriers and their em
ployees.” The committee reported that it did not deem it advisable
to present a recommendation for an antistrike provision. It asked
the establishment of two boards, a railway adjustment board and a
railway labor board of appeals.
The Railway Adjustment Board was to consist of representatives
of the employers and representatives of the employees. These mem
bers were to be selected by and paid by the interests which they repre
sented, respectively. If any group of employers or of employees
failed, within a given time, to name a representative to this board
the President of the United States was to make the appointment. It
was thought that such a board would consist of approximately 30
members. In the event of a dispute between the employer and the
employee the board was to refer the matter to a conference commit
tee representing the contesting sides. The conference committee was
to report the findings to the Board of Labor Appeals, to the con
testants, and to the President of the United States. Full publicity
was to be given the report.
The Railway Board of Labor Appeals was to consist of nine mem
bers—three representing the employers, three the workers, and three
the public. The employee members were to be appointed by the
President, one from each of three groups of six names suggested by
the employee members of the Adjustment Board. The employer
members were to be appointed in a like manner from a list of names
16 U. S. Congress.
House of Representatives. Committee on Interstate and Foreign
Commerce. Hearings * * * on H. R. 4378, 66th Cong., 1st sess.
17 H. Rept. No. 456, 66th Cong., 1st sess.

USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

suggested by the employer members of the Adjustment Board. In
appointing the third group the President was to be instructed to give
due consideration to the agricultural, to the commercial, and to the
unorganized employee interests. The last three members were to be
named directly by the President. No man could hold membership in
the Board of Labor Appeals and on the Adjustment Board at the
same time. Members, after the initial appointees, were to hold office
for a period of six years, thus securing a continuity of policy in the
board.
Although all the nine members of the Board of Labor Appeals
were to take part in the hearings and the discussion of any dispute
presented to them, only the members representing the employers
and the employees were to have the right to vote on a question.
Five of these six votes were to be necessary to a decision. Publicity
was to be given the decisions reached. The board was also to make
investigations of a general nature into the relations of the railroads
to the employees and was to publish information thereon from time
to time. Certain records and documents were to be turned over to
the Labor Board by the United States Board of Mediation and
Conciliation created under the Newlands law.
Any railroad employer breaking a contract based upon the de
cision of the board and any union counseling such a breach of con
tract were to be liable to damages in a manner prescribed.
The bill provided no means of enforcement. In this respect the
voluntary cooperation of the roads and of the men was to be relied
upon exclusively. As will appear in the discussion of the Senate
proposal, this was in marked contrast with the proposal favored by
the latter body. The penalty for the breaking of contracts, as pro
vided in the House bill referred to above,, was to apply only in
those cases in which the contestants had agreed to submit the con
troversy to the Adjustment Board. In this respect it was analogous
to the provision for a court review incorporated in the Erdman
law in 1898.
THE SENATE BILL.

While the House of Representatives was engaged in an attempt to
provide for the return of the railroads to private management, simi
lar action was being considered in the Senate. Senate bill 2906
had been introduced by Senator Cummins, of Iowa, on Septem
ber 2, 1919. A subcommittee of the Committee on Interstate
Commerce held hearings on this bill from September 23 to
October 23.18 At these hearings representatives of the railway
brotherhoods were given an opportunity to present their views.
These men centered their attack mainly upon section 29 of the bill,
the section making a strike unlawful. Mr. Stone, of the Brother
hood of Locomotive Engineers, indicated the attitude of the em
ployees in his testimony:
This legislation, speaking of Senate bill No. 2906, is, in my opinion, by all
odds the most reactionary that has been proposed in Congress in connection
with the railroad question. * * *

18
U. S. Congress. Senate. Committee on Interstate Commerce. Prevention of Strikes.
Hearings on S. 2906, 66th Cong., 1st sess. (1919).

TRANSPORTATION ACT OF 1920 : ESCH -C UM M IN S LAW.

It is wholly, solely, and entirely in the interests of capital and can never be
supported by any intelligent group of informed public opinion.19

Mr. Doak, of the Brotherhood of Railroad Trainmen, protested
vigorously against the antistrike clause, insisting that the enactment
of this legislation would do more than anything else to destroy the
poweij of the more conservative elements in the labor world, the
destruction of which would bring on strikes against the law; that
this would force the laboring men into the ranks of the radicals in
self-defense.20 Without a single exception the labor leaders at the
hearings expressed similar views.
The subcommittee concluded its hearings, and on November 10
Mr. Cummins presented a report and Senate bill 3288.21 Sections 25,
26, 27, and 28 of the new bill applied to the railway labor problem.
In spite of the opposition expressed by labor leaders the bill included
an antistrike provision. It was made unlawful to “ aid, abet, counsel,
command, induce, or procure the commission or performance of any
act” which would interfere with interstate commerce. Senator La
Follette, of Wisconsin, in, his minority report, held that the scope
of this bill was so broad as to make it unlawful to give assistance to
the famishing members of the family of a man on strike.22
The bill provided for three regional boards of adjustment and for
one committee on wages and working conditions. These boards were
to have jurisdiction over all controversies between the roads and the
men which were incapable of settlement by conference. Each of
the four boards was to be composed of an equal number of represen
tatives of the men and of the managers, being nominated by these
interests, respectively. The adjustment boards were to have juris
diction over all disputes other than those involving wages and work
ing conditions. The latter were to be under the special jurisdiction
of the board established for that purpose. But no decision was to be
final until approved by the transportation board, a new board the
members of which were to be appointed by the President. This
board was to take over a great deal of the administrative work there
tofore done by the Interstate Commerce Commission.
One can see the analogy between the Senate plan and that applied
during the Government administration of the railroads. The three
agencies correspond roughly to the Railway Adjustment Boards, the
Board of Railroad Wages and Working Conditions, and the Direc
tor General of Railroads, respectively. Disputes that could not be
settled otherwise were to be appealed to the transportation board
just as they had been appealed to the Director General of Railroads.
And, likewise, the approval of the transportation board was neces
sary to make effective any decision arrived at by the subordinate
agencies as the approval oi the Director General had been necessary
under Federal control.
Senator La Follette probably expressed the feeling of the many
people opposed to this bill when he said:
I submit that this bill which they have prepared and reported to the Senate
contains every vice which is supposed to inhere in Government ownership and

10 U. S. Congress. Senate. Committee on Interstate Commerce. Prevention of Strikes.
Hearings on S. 2906, 66th Cong., 1st sess. (1919), p. 47.
20 Idem, p. 105.
21 S. Kept. No. 304, 66th Cong., 1st sess.
22 Idem, Part II, p. 10.

79994°—22-----6

USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

#none of its virtues. It has every weakness which attaches to private owner
ship, but none of the advantages commonly claimed for that system.22

He objected vigorously to having authority to pass finally upon
wages reposed in the transportation board, in the selection of the
members of which labor had no voice.
It is not necessary to follow out the discussion of the Houqp bill
and of the Senate bill in the two branches of Congress. The differ
ent members expressed views which paralleled those already brought
forward in the hearings which had been held at length.
The analysis of these two measures has been given in some detail
because of their close connection with the law that was enacted by
Congress as the transportation act of 1920. A consideration of the
different proposals shows clearly that Congress had given a great
deal of consideration to the railway labor problem and that the law
enacted was the result of months of unceasing work in the prepara
tion of the bill.
UNITED STATES COMMISSIONER OF MEDIATION AND CONCILIA
TION ON COMPULSORY ARBITRATION.

In connection with the new law to be enacted for the adjustment
of railway labor disputes it is of interest to note the recommenda
tions made by Judge Chambers, the Commissioner of Mediation and
Conciliation. On December 1,1919, while this whole problem was in
process of solution, the commissioner made his report to the Presi
dent. He mentioned the apparently growing sentiment for compul
sory arbitration of railway labor controversies and expressed him
self in opposition to such a measure. However, in the event that
Congress was determined to pass a compulsory arbitration law he
suggested the terms of the kind of law which he would consider the
least undesirable.23
His recommendation, briefly stated, provided that every effort be
made to get the controversy adjusted by mediation and conciliation,
as under the provisions of the Newlands law. In the event of failure
the board should so report to the President. The President should
be authorized, if he saw fit to do so, to appoint a given number of
arbitrators from a group of 10 men nominated by the contestants
and also from a number of outsiders to represent the public. If both
sides accepted the award of the board the case should end there. But
if either side failed to agree to the conclusions of the board, the
award was to apply for a period of three months regardless of such
objection.
During the three months’ period the application of the award was to
be studied by a commission appointed by the arbitration board from
names suggested by the contesting parties. The application committee
was to be allowed to call the board together at any time within this
period in order to get an interpretation on the points of the award.
At the expiration of the three months, or before if requested by the
application committee, the board was to reconvene to hear a report
from the application committee. The award was to be binding.
Even after rendering the award by a majority of the board, how22 S. Rept. No. 304, 66th Cong., 1st sess., Part II, p. 10.
23 U. S. Commissioner of Mediation and Conciliation. Report * * * 1913—1919,
pp. 15-17.

TRANSPORTATION ACT OF 1920 : ESCH-CIJM M INS LAW.

ever, either side to the controversy might reject the award. But it
should be binding for a period or 30 days following the receipt by
the board of a written notice of the rejection and a statement of the
reasons for such refusal to accept the award.
The experience of the Commissioner of Mediation and Concilia-;
tion should justify careful consideration of his recommendations.
This, it will be seen, is compulsory arbitration with qualifications.
It compels for a period only, and before the expiration of that pe
riod public opinion would have had ample time within which to
reinforce the decision of the board if it seemed to the public that ‘
the award were just. But this Congress was not to pass a measure
so drastic as that.
THE CONFERENCE BILL.

The law which finally passed both Houses of Congress as the trans
portation act of 192024 was that recommended by a conference com
mittee of the Senate and the House. The conference report was ar
rived at only after the conferees had given eight days to the work
of harmonizing the bills of the Senate and the House. Mr. Cum
mins said that he had submitted with reluctance to the elimination
of the antistrike provision; that he had done so only after it became
evident that the House would not approve such a measure. He
realized that some bill must be passed if Congress was to prevent what
would otherwise be chaos in the railroad field.25
The new bill combined many features presented in the two bills
discussed above and eliminated some of those which had provoked the
keenest opposition in the hearings and in the debates. One section,
Title III, is called “ Disputes between carriers and their employees
and subordinate officials.” Its principal provisions are:
Both the employers and the employees are to exert every reasonable
effort by means of conference and otherwise to adjust any dispute
that may interrupt interstate commerce. Failing to reach an agree
ment, they shall refer the controversy to the railroad board of labor
adjustment authorized by the act.
Local or regional railroad boards of labor adjustment may be estab
lished by voluntary agreement between any carrier or group of carriers
and any employees. Such boards are empowered to decide disputes
involving grievances not decided by conference as mentioned above.
The services of any such board may be invoked by any carrier; by
a group of not less than 100 employees; upon the initiative of the
board itself; or by request of the Railroad Labor Board in case an
interruption of traffic seems imminent.
The Railroad Labor Board is to consist of nine members. Three
members are appointed by the President from a group of six names
suggested by the employees, three from a group of six names sugby the carriers, and three members named directly by the
fested
'resident. The President is to fill any vacancies that occur and is
to appoint any member representing the employees or the carriers
if they fail to suggest names within a given time.
24 H. Rept. No. 650, 66th Cong., 2d sess.
25 Congressional Record, Vol. LIX, p. 3328 (Feb. 23, 1920).

USE OF FEDERAL POWER IIST RAILWAY LABOR DISPUTES.

No member of the Railroad Labor Board shall, during his term
of office, hold a position in a railway labor organization or be finan
cially interested in such organization. Neither shall he be pecunia
rily interested in any carrier coming within the law.
The Railroad Labor Board is to hear any dispute regarding griev
ances, rules, or working conditions which an adjustment board certi
fies it has been unable to settle, or which it seems such board will be
unable to settle within a reasonable time. The Labor Board can, also,
on its own initiative, take any dispute into consideration if it seems
necessary to take the question from the adjustment board. In case
no adjustment board has been organized the disputes can come before
the Railroad Labor Board in one of three ways:

(1) Upon application of any carrier or any organization of employees;
(2) Upon written petition from not less than one hundred unorganized em
ployees ;
(3) Upon the board’s own motion.

A dispute concerning wages can come before the Railroad Labor
Board in any one of three ways as mentioned above. Here the
adjustment board has no jurisdiction. The Railroad Labor Board
also has the power, within 10 days from the reaching of an agree
ment, to suspend any settlement which may have been arrived at by
conference between the employers and the employees if such an
agreement is likely to necessitate an increase in traffic rates of the
carriers.
The law states definite criteria for the determination of a “ fair
wage ” :
The scale of wages paid for similar kinds of work in other industries;
The relation between wages and the cost of living;
The hazards of the employment ;
The training and skill required;
The degree of responsibility;
The character and the regularity of the employment; and
Inequalities or increases in wages or treatment, the results of previous wage
orders and adjustments.

Five of the nine votes are necessary to a decision. And if it is a
question involving wages at least one of the representatives of the
public group must concur in the decision. Full publicity is to be
given the decisions of the board. In fact, this is the only means by
which it is hoped to secure the acceptance of the awards made. The
board is instructed, further, to investigate the relations between the
employers and the employees and to publish its conclusions from
time to time.
All the necessary machinery is provided for the subpoenaing of
witnesses, taking testimony, and for making of rules and regulations
for the guidance of the board.
The railroads are not permitted, prior to September 1, 1920, to re
duce wages as fixed by the Railroad Administration during the
period of Federal control. Such a reduction is made punishable by
fine.
The Railroad Labor Board may publish its conclusions in case it
considers that the findings of any adjustment board are violated.
This shows, again, the reliance that is placed upon the power of an
enlightened public opinion to force the acceptance of the awards upon
both sides to the controversies.

TRANSPORTATION ACT OF 1920: E SC H -C UM M IN S LAW.

The powers of the Board of Mediation and Conciliation created
by the Newlands law are not to extend to any controversy which
“ may be received for hearing and decision by any adjustment board
or the Railroad Labor Board.”
This conference report was accepted by the House of Representa
tives on February 21 by a vote of 250 to 150.26 On February 23 the
Senate took like action by a vote of 47 to 17.27
ACT OF 1920 AND THE NEWLANDS LAW.

The language of the transportation act of 1920 is sufficiently clear
to call for no extended analysis or for much difference of opinion as
to its interpretation. There is one possible exception to this how
ever. The section in which the United States Board of Mediation
and Conciliation is mentioned says that the latter board’s power shall
not extend to any controversy which “ may be received by ” the newly
appointed agencies. Under any ordinary interpretation this would
seem to indicate that the work of the United States Board of Media
tion and Conciliation had practically come to an end.
It has been suggested, however, that a more liberal interpretation
should be placed upon this part of the new law; that it only takes
from the jurisdiction of the Mediation Board any controversy in
which the dispute shall have come up for the consideration of the
Railroad Labor Board, i. e., that just so long as the Railroad Labor
Board postpones the consideration of any matter the jurisdiction of
the Mediation Board is as formerly. If this be the correct interpre
tation the Mediation Board might continue to adjust controversies
with the results that some of them would never come before the
Railroad Labor Board. But this suggestion, it appears from the
evidence at hand, is probably a violation of the intention of Con
gress in the enactment of the new legislation.
In a letter to Chairman Good, of the Appropriations Committee,
Judge Chambers, of the Mediation Board, stated that there was still
much work for his board to do.28 The excerpt from his letter does
not indicate what he considers the line of demarcation between the
work of the two agencies. But the railway brotherhood leaders have
been quoted in Congress as saying that the Newlands law no lpnger
applies to their controversies and that, so far as they are concerned,
the law might as well be removed from the statute books.29 Since in
the very nature of the case the aid and the assistance of the labor
element are necessary to the proper functioning of the Board of
Mediation and Conciliation, there seems to- be little doubt that this
board has been shorn of most of its power and of its responsibilities.
If the section in question is to be interpreted literally, then the
powers of the Board of Mediation and Conciliation extend now only
to those controversies involving employees of the interurban and elec
tric railways, carriers not included within the scope of the transpor
tation act of 1920. In the event that this interpretation is the correct
one, the Newlands board has lost most of its excuse for existence.
Mr. Esch, in the debate in the House of Representatives on May 7,
26 Congressional Record, Vol. LIX, p. 3316 (Feb. 23, 1920).
27 Idem, p. 3349.
28 Idem, p. 6652 (May 6, 1920).
-’"Idem, pp. 6653, 6654 (May 6, 1920).

USE OF FEDERAL DOWER IK RAILWAY LABOR DISPUTES.

1920, insisted that the sole reason for the continuance of the Newlands
board was for the purpose of having some tribunal through which the
disputes on electric and interurban roads could be adjusted.30 Since
Mr. Esch had charge of the bill in the House his testimony seems to be
conclusive as to the intent of Congress in the enactment of the labor
provisions of the new legislation.
Had the Newlands law been applied with success within the last
few years undoubtedly the Members of Congress would have con
tinued it in such a way as to make it a part of the machinery for the
settlement of disputes at the present time.
Representative Casey, of Pennsylvania, tried to legislate the New
lands law out of existence on the ground that it had become a useless
agency. To this end he proposed an amendment to the appropriattions bill in the House on May 6, 1920.31 The explanation made by
Mr. Esch, referred to above, prevented the passage of this amend
ment.
There still seems to be another way in which the services of the
Board of Mediation and Conciliation may be invoked in the settle
ment of railway labor disputes if the law of 1920 is not interpreted
in such manner ds to deny the board any power in this field. The
1920 law makes no provision for mediation in railway labor disputes.
It provides, however, that the disputants must convince the Railroad
Labor Board that they have tried all possible means of adjustment
before the Railroad Labor Board will take the controversy under
consideration. Should the Railroad Labor Board rule that such
agencies as those offered by the Mediation Board come within the
means which the disputants should use before appealing the case
higher, i. e., should “ every reasonable effort ” be interpreted to in
clude the invoking of the services of the Mediation Board, the New
lands board might function in the adjustment of controversies which
need not go so far as to the Railroad Labor Board. To date the
Railroad Labor Board has not indicated that it will make such use
of the Mediation Board.
The Labor Board has refrained from making such a ruling, how
ever. On the contrary, it has ruled that, in the event of a disagree
ment on the interpretation of an award, and a failure to adjust this
disagreement by conference committees, the dispute shall again be
referred to the Railroad Labor Board for a ruling.32 It is possible
that the board would have been within the law had it ordered that
the contending parties should attempt to adjust their controversy by
means of the Mediation Board before bringing it back to the Railroad
Labor Board for a review and a final decision. While this is a possi
bility, there is still ground for believing that such a ruling would
have been a violation of the intent of Congress in passing the new
law.
OPERATION OF ESCH-CUMMINS LAW.

It is too early as yet to appraise conclusively and accurately the
labor provisions of the Esch-Cummins law. The law provided that
prior to September 1, 1920, the period of the guaranty, the carriers
30 Congressional Record, Vol. LIX, p. 6710.
31 Idem, p. 6652.
82 U. S. Railroad Labor Board. Decision No. 2, July 20, 1920.

87
could not reduce wages below those paid by the Director General of
Railroads.
The railway adjustment boards, provided for by the law, have not
played an important part to date. Two such boards have been
created, one for the western and the other for the southeastern terri
tories. These boards will handle no wage matters, but will handle
disputes growing out of personal grievances, or out of the interpreta
tion or application of the schedules, agreements, or practices, which
can not be adjusted by direct conference between the representatives
of the individual railroads and the employees. Agreements for the
creation of such boards in the eastern and southwestern regions have
not yet been concluded.
In the early part of 1921 the brotherhood leaders proposed the
formation of such adjustment boards. But they were to be based
upon the acceptance of the principle of the national agreements,
and the carriers refused to cooperate on any basis other than that
of the individual agreement.33 Should the theory of the national
agreement be accepted these adjustment boards could relieve the
Railroad Labor Board of a great deal of work in the settlement of
minor disputes which need not take up the time and the energy
of the members of the Railroad Labor Board.
The absence of these adjustment boards has forced the Railroad
Labor Board to divide itself into three groups to handle matters
that would ordinarily be settled without appeal to it.33 It seems
unfortunate that so much of the time of the members of the Rail
road Labor Board should be given to this kind of work, leaving
them much less opportunity to devote themselves to the adjustment
of the larger issues.
The operation of the law, then, can be examined only in connec
tion with the work of the Railroad Labor Board of nine members
as provided by the statute.
That the board has not been idle is attested by the fact that from
April 20,1920, the date of the first decision, to the end of the calendar
year 1920, 42 decisions were made. At the time of the present
writing (Oct. 1, 1921) the number has passed the 200 mark.
These decisions cover not only the questions relating to wages,
but also all the factors which may lead to controversy between the
management and the men. In fact, the larger number of decisions
have involved matters in which relatively few employees were en
gaged. The board has passed, among other matters, upon such ques
tions as seniority privileges and rights; the reinstatement of dismissed
employees; the proper scale of pay for deadhead service; the refund
ing of deducted pay; the assignment of work to the proper classes
of labor; the amount of pay to be awarded during illness of the
men; and many other controversies growing out of equally minor
considerations.
The board, in its initial decision34 established a precedent for its
subsequent action. In this case it refused to hear the case of cer
tain employees on the ground that they had not made every reason
able effort, by conference with the management, to adjust the diffi
culty be'fore bringing it to the Railroad Labor Board. Such action,
TRANSPORTATION ACT OF 1920 : ESCH -C UM M IN S LAW.

33 Railway Age, Vol. LXX, p. 79 (Jan. 7, 1921).
34 U. S. Railroad Labor Board. Decision No. 1.

USE OF FEDERAL POWER IN" RAILWAY LABOR DISPUTES.

the decision held, violated both the provisions of the transporta
tion act and the general orders given out by the Eailroad Labor
Board. It was shown here in the beginning that the Eailroad
Labor Board did not propose to enter into the settlement of disputes
which might be adjusted without appeal to it.
Several of the decisions of the board have been of a nature such
as to show the operation of the law most satisfactorily. A few of
the most significant decisions, the ones that stand out and which
indicate what may reasonably be anticipated from the new board,
will be discussed briefly in this connection.
On July 20, 1920, the Eailroad Labor Board handed down De
cision No. 2. In March, 1920, the employers and the employees in
volved had tried to adjust this controversy through conference as
required by the transportation act of 1920. Wages, rules, and work
ing conditions were all involved. The board began its hearings in
Washington and later continued them in Chicago, its permanent
headquarters. According to the board approximately 90 per cent
of the railway employees of the country were parties to this dispute.35
Early in 1919 some of the employees had requested wage advances
to meet the increased cost of living. Other groups of employees
gradually filed similar claims. On August 25 President Wilson had
asked the employees to await a better opportunity to determine
whether the high cost of living was to be temporary or permanent.
Nothing happened to reduce the costs and in February, 1920, the
organizations again demanded increased pay. The Director General
of Eailroads declined to take any action on the ground that Federal
control was nearing an end. The President supported him in this
position, but promised that he woiild use his influence to have Con
gress enact a law under which the case could be heard and decided.
On February 28 the transportation act creating the Eailroad Labor
Board was passed.
The Eailroad Labor Board, when it became apparent that much
time would be required to reach a decision, announced on June 12 that
the decision would be retroactive to May 1,1920. It decided, further,
to limit this decision to the question of wages, leaving for a later date
the questions of rules and working conditions. Such rules and
working conditions were not to be changed except by consent of both
parties or, if they failed to agree, by a decision of the Eailroad Labor
Board.
In its decision the Eailroad Labor Board held that the increase in
prices had driven wages for the railroad employees below the prewar standard of living and that the wages for the railroad workers
had not advanced so much as had the wages for labor of a similar
kind in other lines of work.36 Upon this dual basis a substantial
increase was granted. The increase amounted, according to the
board, to approximately 22 per cent, or to a total of $600,000,000
annually.37
Article 14 of the decision provided that in the event of disagree
ment in the interpretation of the award the difference was to be
adjusted by conference. And, if this failed, the question was to
35 TJ. S. Railroad Labor Board. Announcement, May 19, 1920.
36 Data for above account are from U. S. Railroad Labor Board. Decision No. 2.
37 U. S. Railroad Labor Board. Wage Series, Report No. 1 (August, 1920).

TRANSPORTATION ACT OF 1920: ESCH -C LM M IN S LAW.

be resubmitted to the Railroad Labor Board. As was to have been
expected, the board had to issue many supplementary orders and
addenda in this connection.
The transportation law provides in section 313 that in case there
seems to be a violation of the award of the board, the board can in
vestigate the supposed violation and publish the results of its findings.
Late in 1920 the revenues of the Erie Railroad Co. fell off to such an
extent that the management held conferences with the train-service
employees and succeeded in getting a modification of the wage sched
ules with them. In January, 1921, without conference with the em
ployees concerned, the road announced a decrease for those who were
members of the maintenance of way and of the dispatchers’ organiza
tions. There was a question as to whether this reduction, without con
ference, constituted a violation of decision No. 2. On February 12 the
Railroad Labor Board notified the Erie Railroad Co. that no reduc
tions in pay were to be allowed except through the means already sug
gested, i. e., no reductions unless mutually agreed upon by both sides
or authorized by the Railroad Labor Board after the contending
parties had failed to reach an agreement. Subsequently the Erie Rail
road Co. held negotiations with the men in question, but refused to re
store the old wages in the meantime. The employees refused to nego
tiate on such a basis and appealed to the Railroad Labor Board. The
Erie Railroad management contended that conditions had changed
since the time of decision No. 2 and that, on this basis, it was war
ranted in reducing wages.
In decision No. 91 the board found that the Erie Railroad Co. had
violated the terms of decision No. 2 and accordingly ordered it to
restore the old rates of pay. The road, it held, had no authority to
decide when new conditions warranted a change in wages. Such an
adjustment was to be made only through the conferences provided for
in the statutes or, failing there, by an appeal to the Railroad Labor
Board.38 The Erie Railroad Co. complied with the order of the Rail
road Labor Board and restored the old wages.39
This decision raises a rather nice point in the interpretation of the
1920 law. The Railroad Labor Board has given its interpretation,
but, to date, no court has had occasion to pass upon this interpretation.
Until overruled by a court decision or by action of the board itself
this means that the management is denied the power to adjust wages
to new business conditions without the consent of the employees, pend
ing a decision of the Railroad Labor Board. This seems to be the par
ticular feature of the labor provisions of the law to which the mana
gers are most opposed. Mr. Howard Elliott, chairman of the North
ern Pacific Railway Co. has insisted that it would be much better to
give the railway management the initiative in the reduction of
wages.40 He suggests that the railway officials should be permitted to
make adjustments to new conditions without the necessity of delay
ing until a decision could be had from the Railroad Labor Board.
He would give the board power to review the action of the manage
ment and to make its findings conclusive and retroactive.41 In this
38 Data are from U. S. Railroad Labor Board. Decision No. 91.
Railway Age, Vol. LXX, p. 709 (Mar. 18, 1921).
U. S. Congress. Senate. Committee on Interstate Commerce. Hearings on
23, Railroad Revenues and Expenses * * *, 67th Cong., 1st sess., pp. 408, 409
41 “ If the management do wrong, overrule it and make it do right, hut do not
it from acting until the approval and permission of a regulating authority
obtained.” (Idem, p. 408.)
39
40

S. Res.
(1921).
prevent
can be

90 USE OF FEDERAL POW e L IN RAILWAY LABOk DISPUTES.
way, according to Mr. Elliott, the worker can be assured that he will
get justice and the railroad, at the same time, will be able to take
action that may be necessary $o prevent insolvency and failure. As
it is now, wages can not be reduced until after the board has passed
upon the case. And its action may be so long delayed as to cause
serious financial loss to the carrier. Obviously, it is not feasible to
make the decision retroactive as to wages should the board grant a de
crease under the present arrangement. Mr. Elliott probably repre
sents the sentiment of the majority of the executives in this respect.
The Eailroad Labor Board has shown that it will act to reduce
wages as well as to increase them. The New York Central Eailroad
Co., on March 19, 1921, filed a petition to have wages on its road
reduced. Other roads followed the lead of the New York Central
Eailroad Co. in this respect and the Eailroad Labor Board set a date
to hear complaints from all the carriers and the arguments of the
employees. On May 17 the board announced that its decision would
be given June 1 and would become effective July 1, 1921. The board
granted decreases in wages, asserting that business conditions had
changed; that there had been a decrease in the cost of living; and
that wages for similar work in other fields had decreased.42 The re
ductions ranged from 7 to 18 per cent, averaging approximately 12
per cent, and are estimated to save the roads approximately $400,000,000 annually.43
The executives of the 16 recognized railroad labor Organizations
met in Chicago on July 5, 1921, to adopt a plan for concerted action
in connection with the reductions in pay granted by decision No. 147.
It was agreed to take a strike vote to determine whether or not the
decision should be accepted, in the meantime giving notice that it
was accepted under protest. Pending the taking of this vote repre
sentatives of the men were appointed to meet with the executives
and “ clearly place them on record as to whether or not they will
request further decreases in rates or compensation, the abolition of
schedule rules or regulations or the elimination of time and onehalf.44
The members of the Federated Shop Crafts announced that they
had already taken a strike vote and had decided to reject the award,
but that they would await the taking of a vote by the other workers
affected before they acted upon this vote.44
The conference between the representatives of the brotherhoods and
of the railroads was held in August. The workers at this meeting
submitted three questions to the management; Would they restore
the rates of pay in effect on June 30, 1921? Would they withdraw
demands for further reductions in pay? Would they withdraw
demands for the discontinuance of time and one-half for overtime
and agree not to request a schedule revision for a stated time ? The
managers declined to give any such assurances to the employees.45
The vote by the Brotherhood of Eailroad Trainmen showed a
majority of approximately 90 per cent favorable to a strike. But
President W. Gr. Lee announced that no action would be taken by
his organization pending the vote by the other brotherhoods. Efe
42 U. S. Railroad Labor Board. Decision No. 147 (June 1, 1921).
43 Railway Age, Vol. LXX, p. 1254 (June 3, 1921).
44 Labor, Vol. II, July 16. 1921.
46 Labor, Vol. Ill, Aug. 20, 1921.

TRANSPORTATION ACT OE 1920: E SC H -C TM M IN s LAW.

sent the chairmen of the local unions home with instructions to confer
with the grievance committees and to get their approval or dis
approval of a strike.46 To date (October 1, 1921) the vote by the
other brotherhoods has not been counted. It is freely predicted in
some quarters that this vote will be favorable to a strike. But it
should be remembered that the leaders have it within their power to
veto such a strike order if they think this action desirable.
it is recalled that when decision No. 2 was rendered the Railroad
Labor Board announced that it would at a later date decide the
controversy as to rules and working conditions. The especial con
tention here centered around the question of the relation of the
national agreements which gained such headway during the period
of Federal control. The board rendered its decision, No. 119, April
14, 1921, the same to become effective on July 1.
The men contended that national agreements were only reasonable
rules and that if they were discontinued the result would be much
loss of time in new negotiations and a great deal of added irritation.
They also urged that to require local conferences “would be to expose
the local organization on the several carriers to the entire power and
weight of all the carriers acting through the Association of Railway
Executives on the conferring carrier; that such a disparity of force
would produce an inequitable result highly provocative of discontent
and likely to result in traffic interruptions.” The carriers, on the other
hand, insisted that the conditions were local and could be handled
with better effect locally; that the differences in conditions should
have corresponding differences in rules and working conditions.47
The board held that there was merit in the contentions of each
side; that certain rules were of a general nature and could be regu
lated by national agreements while others could be decided with
better effect locally. It therefore ordered that the national agree
ments be -abrogated. *The subject was remanded to the carriers and
the employees with instructions that they get together and form
new rules to take the place of the old ones. The board reserved
the right to discontinue the agreements at an earlier date than July 1
should it appear that the employees were unnecessarily delaying
the negotiations; it also reserved the right to continue them later
than July 1 should the managers delay negotiations.
In the same decision the board recognized the principle of the
8-hour day, but added that it “ should be limited to work requiring
practically continuous application during 8 hours” and that “ for
8 hours’ pay 8 hours’ work shall be performed except by train
service employees, who are paid on a mileage as well as an hourly
basis.” The order further gave explicit recognition to the labor
unions and to the principle of collective bargaining. To this ex
tent the Railroad Labor Board authorized the continuation of the
principle championed by President Wilson and approved by Con
gress in the passage of the Adamson law, a principle applied as
nearly as possible under the Railroad Administration during Federal
control.
In this decision the board outlined 16 principles which were to
be used by the carriers and the employees in arriving at schedules
48 New York Times, Sept. 30, 1921, p. 14.
47 U. S. Railroad Labor Board. Decision No. 119.

USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

to take the place of the abrogated ones. One of the significant prin
ciples enunciated was to the effect that neither management nor men
should discriminate against employees because of their member
ship or nonmembership in labor unions—a restatement of the pro
vision of section 10 of the Erdman Act, the section declared un
constitutional by the Federal Supreme Court. Furthermore, the
men were to decide who should represent them in negotiations with
the management. The board, as did the Railroad Administration
during the Federal control period, recognized the right of labor
to organize and the principle of collective bargaining.
Thus neither side had secured all that it desired. The Railway
Age, commenting on the decision, said that the solution seemed
on the whole to be a “ sensible one.” 48 The abrogation of national
agreements was the part of the decision which appealed to the rail
road management and the recognition of the principle of the 8-hour
day and of that of collective bargaining did not altogether counteract
the favorable attitude toward the decision on their part.
But this was not to be the end of the controversy. The railroads
and the brotherhoods placed different interpretations on the deci
sion. The management took it as an abrogation of the schedules
with the train service employees, whereas the latter did not so con
strue it. Several controversies arose over the application of the
decision. On June 16 the Railroad Labor Board rendered a deci
sion in favor of the employees.49 The decision said:
The Labor Board did not, nor could it under the provisions of the trans
portation act, 1920, include in Decision No. 119 any matter which was not
properly before it as a dispute. Decision No. 119 did not, therefore, terminate
the existing schedules or agreements of train, engine, and yard employees in
the service of the carriers involved. Changes in such schedules or agreements,
howevei*, may be made after the required notice either by agreement of the
parties or by decision of this board after conference between the parties and
proper reference in accordance with the provisions of the transpbrtation act
and rules of the board.

In reaching new agreements the labor leaders! insisted that the
negotiations with the several roads be made by representatives of the
unions, not by employees on the roads in controversy. The mana
gers insisted that they be permitted to negotiate directly with their
own employees. Consequently they reached an impasse and the
Railroad Labor Board issued an order on June 27 postponing the
operation of Decision No. 119 in which it had granted the abroga
tion of national agreements.50 The Railway Age characterized this
decision as a “ surprise.” The board gave as its reason for post
poning the order the fact that the contesting parties had not yet
worked out anything to take the place of the national agreements,
therefore:
Under the circumstances, in order that no misunderstanding may exist or
unnecessary controversy arise, it appears necessary, purely as a modus vivendi,
that the Labor Board establish a uniform policy to be pursued with regard
to the undecided rules until such time as it is possible to make a decision.50

The right of the employees to be represented by their unions be
came a vital issue in the summer of 1921. The federated shop crafts
48 Railway Age, Vol. LXX, p. 968 (Apr. 22, 1921).
49 IT. S. Railroad Labor Board. Interpretation No. 2 to decision No. 119.
60 U. S. Railroad Labor Board. Addendum No. 2 to decision No. 119.

TRANSPORTATION ACT OP 1920 : ESCH-CUMMINS LAW.

have been a party to most of these contests. Among others, the
Texas & Pacific Railway insisted that it had the right to negotiate
with the crafts separately. But the Railroad Labor Board, on June
7, 1921,51 ruled that the conditions of work in the crafts was of such
a similar nature that the employees had the right to work a unit
in the negotiations with the railroad, provided their federation rep
resented a majority of the workers in each craft. Since that time
the board has reiterated this view in a number of decisions. In
decision No. 173 it was even more specific in holding that the em
ployees had a right to insist that the agreement should be made
with the labor organization, if the organization represented a ma
jority of the workers. All these decisions were made on the basis
of principle. 15 of decision No. 119, which declared the right of the
men to be represented by a labor organization if they so wished.
The most interesting of the controversies growing out of decision
No. 119 was that between the Pennsylvania Railroad and System
Federation No. 90 (shop crafts) of the American Federation of
Labor.5152 The employees selected their general chairmen, who were
authorized to negotiate rules and working conditions with the man
agement. But the management refused to deal with these men on
the ground that there was no proof to show that they represented a
majority of the workers involved. As an alternative the company
proposed to send out a company ballot for the selection of the repre
sentatives for the men. System Federation No. 90 officials objected
to this on the ground that it would cause needless delay; that it vio
lated the law in that no provision was made for the designation of
organizations to represent the men; that it limited the choice of rep
resentatives to those actually in the employ of the company; and
that it violated the law by having the employees represented region
ally rather than as a unit organization.
The workers, in turn, prepared a ballot of their own for the selec
tion of representatives. This ballot provided only for organizations,
giving the men no opportunity to vote for individuals. The railroad
refused to recognize this ballot as the employees had refused to rec
ognize that of the company.
When the controversy was submitted to the Railroad Labor Board,
Judge Seneff, representing the Pennsylvania Railroad, challenged
the authority of the board in the perpetuation of the national agree
ments which had been entered into by the Railroad Administration
and the employees, some of them only a short time before the return
of the roads to private management. He emphasized the fact that
the managements were not parties to these agreements. He also
asserted that the prescribing of the 16 principles laid down by the
Railroad Labor Board to be used as a guide in reaching new agree
ments constituted an unconstitutional act, that it amounted to a vio
lation of “ property rights which can not be taken away from either
in this manner without infringement upon their constitutional
rights.” 53
Judge Seneff insisted that the transportation law contemplated
the formation of individual agreements between the carriers and the
a s

51 IT. S. Railroad Labor
52 For facts in this case
53 P e n n s y lv a n ia

Board. Decision No. 153.
see U. S. Railroad Labor Board. Decision No. 218.

R a ilr o a d P r o c e e d in g s B e fo r e t h e U , S . R a ilr o a d L ab o r B o a r d , J u ly 8
a n d 9, 1 9 2 1 , p p. 6 4 , 6 5 .

USE OF FEDERAL POWER I N RAILWAY LABOR DISPUTES.

employees and that the Railroad Labor Board should have complied
with the intent of Congress in this regard. He also objected to the
“ summary manner ” in which the postponing order had been issued
without a hearing preceding it. But he expressed a willingness to
cooperate with the board, even to the extent of carrying out the 16
principles formulated by the board for use in reaching the new agree
ments. He did not relent, however, in his insistence that Congress,
in the passage of the law of 1920, intended to give the roads the right
to bargain individually with the men.
Mr. Whiter, assistant to the vice-president in charge of the per
sonnel of the railroad, testified that a majority of the employees of
the road had already agreed upon new rules and working conditions,
or were at that time negotiating to such an end.54
On July 26, 1921, the Railroad Labor1Board handed down its
decision in this case,55 declaring void both the election on the com
pany ballot and that taken on the shop craft ballot. The carrier,
it held, was not justified in its refusal to let the men vote for an
organization to represent them and the employees were not within
their rights in providing that the men vote only for the organiza
tion to the exclusion of individuals. The men, according to the
board, had as much right to vote for a representative not in the
employ of the company as the carrier had to select a representative
who was not a director or an officer of the road. The carrier had
no more right to control the election of the men than one political
party had to control the primary of a rival party. Neither did
the carrier act in accordance with the provisions of the law in insist
ing upon regional representation. Accordingly, the board ordered
a new election, the ballots for which were to be sent out by the
employees at their own expense and in such manner as was prescribed
by the board.
A controversy, in many respects similar to the one outlined above,
arose between the Pennsylvania Railroad and the Brotherhood of
Railway and Steamship Clerks et al. Here the employees objected
to the company ballot. On August 3, 1921, the board gave its de
cision in this case.55 This did not differ essentially from Decision
No. 218.
The board held, however, that the carrier was right in insisting
upon proof that the organization represented a majority of the work
ers involved; also in the contention that the employees concerned
embraced more than one? distinct class and hence that separate agree
ments should be made for each class. The decision contained a state
ment to the effect that this question did not in any manner involve
the problem of the open or the closed shop; that both the union and
the nonunion employees should be accorded every right and privilege
secured to them by the enactment of the law of 1920. In this con
troversy, as in the one discussed above, the board ordered a new
election in accordance with the regulations prescribed by it.
The Pennsylvania Railroad management, on September 26, 1921,
notified the Railroad Labor Board that it would not take any part
in the further hearings to be held at the request of the road. Presi
dent Rea, in his notice of this action, said that the board had limited
“ Railway Age, Vol. LXXI, p. 116.
U. S. Railroad Labor Board. Decision No. 220.

TRANSPORTATION" ACT OP 1920 : ESCH-CUMM1NS LAW.

unfairly the matter that could be presented at such hearing; that
the fundamental issue was the right of the employer and the em
ployee to deal with each other directly; and that his road denied
the authority of the Labor Board to invade the province of the man
agement of the company.56 The railroad again asserted, through its
management, that it would continue to deal directly with its em
ployees as to the determination of wages and the rules and working
conditions on the road. At the time of the present writing (Oct. 1,
1921) there is no indication as to how this controversy will end. In
this case, rightly or wrongly, the Pennsylvania has refused to carry
out the mandates of the Railroad Labor Board. This will afford,
therefore, an opportunity to test the transportation act of 1920 as
to its efficacy in the settlement of railway labor disputes. Unfor
tunately for the purposes of generalization, the industrial depression
and conditions of unemployment of the present make this test one
which can not be used, probably, as a safe guide to any prediction
of what will happen when conditions become normal again.
Simultaneously with the negotiations on the Pennsylvania Rail
road the federated shop crafts were conferring with other railways
with a view to securing agreement upon new rules and working con
ditions. When they failed to reach an agreement the controversy
was referred to the Railroad Labor Board. A decision was handed
down on August 11, 1921.57 The board approved seven rules and
decided that they should apply to all the carriers in this controversy,
137 in number, unless some of the carriers had already agreed with
their men upon rules governing these problems. Overtime was to be
paid at the rate of time and one-half in certain instances and at the
regular rate in other circumstances. Work on Sundays and holidays
was to be paid at the rate of time and one-half excepting in specified
cases where the work was necessary to certain operations.
The board asserted that the lack of uniformity in the period prior
to Federal control made it possible to find precedents for almost any
rule:

The board has therefore felt constrained to consider the principles of right and
wrong involved in the proposals and counterproposals submitted to it, in the light
of present conditions and industrial history.

This decision marks a distinct departure in the policy of the board
in that it was the first one in which any member of the board had
rendered a public dissenting opinion. Mr. A. O. Wharton, represent
ing the federated shop crafts on the board* wrote a minority report
in which he insisted that injustice had been done the men in that they
were denied certain things that had been conceded them by the man
agement voluntarily in the past:

It does not appear either just or reasonable that conditions which have been
in effect from 10 to 20 years and even longer, established as a result of nego
tiation and mutual agreement between employers and employees, and not infre
quently established where no organization of employees existed, can now be de
cided as unjust and unreasonable.

While they have not often become enthusiastic over the work of the
Railroad Labor Board, both sides have indicated their approval in
56
57

Railway Age, Vol. LXXI, p. 619 (Oct. 1, 1921).
U. S. Railroad Labor Board. Decision No. 222.

USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

Mr. F. W. Sargent, solicitor general of the Chicago & North
fneral.
estem Railroad, at a meeting of the board on June 9, 1921, called

the Railroad Labor Board the “ greatest experiment ever undertaken
in a civilized form of government.”58 He promised, for his road, abso
lute compliance with the orders of the board, even though this might
mean insolvency. The labor leaders present expressed a similar de
sire to cooperate with the board. The accord seemed to be so comr
plete that it was characterized as a “ love feast.”
But it should not be forgotten that this antedated the order post
poning the abrogation of national agreements. Mr. Howard Elliott,
of the Northern Pacific, on May 25, 1921, testified it to be his belief
that no further legislation should be enacted before the law of 1920
had been given a fair trial under business conditions more nearly
normal than those at the present time.59
Since the controversy with the Pennsylvania Railroad, and the
decision in which Mr. Wharton dissented, both sides have been less
optimistic in their view of the work of the Railroad Labor Board.
Some of them have gone so far as to challenge the advisability of
the compliance with the awards of such an agency. These are
illustrations of the criticism which such an agency always en
counters as soon as its decisions do not meet with the expectations
of the parties affected thereby.
ESCH-CUMMINS LAW VERSUS EARLIER LAWS FOR ADJUSTMENT
OF RAILWAY LABOR DISPUTES.

The transportation act of 1920 marks a new departure in the
means adopted to adjust labor difficulties on the railways. It
will be recalled that the law of 1888 provided for voluntary arbi
tration and for the appointment of Government investigation com
mittees; the Erdman Act provided for mediation and conciliation
and for voluntary arbitration; the Newlands law was merely an
amplification of the Erdman law. A distinct step was takep in
1916 when, in passing the Adamson law to settle a railroad labor
dispute, Congress assumed the responsibility of fixing the hours
of service on the railroads by legislative enactment. Further
changes were made during Federal control of the railroads when
the Director General exercised the power to determine wages and
working conditions, consulting and advising with the interested
parties, however.
Prior to the period of Federal control the emphasis in all these
measures had been placed upon the voluntary nature of the negotia
tions. The public, it is true, was represented on the investigation
commissions to be created by the statute of 1888, as it was on the
boards of arbitration to be established by that act and by the Erd
man and the Newlands laws. It was also represented on the media
tion boards of the latter two acts. But in all these cases the public
representation was more in the nature of that of an impartial judge
rather than that of an interested party. This public interest became
58 Railway Age, Vol. LXX, p. 1390.
59 U. S. Congress. Senate. Committee on Interstate Commerce. Hearings
on S. Res. No. 23, 67th Cong., 1st sess., p. 404.

TRANSPORTATION ACT OF 1920 I ESCH-CTJMMINS LAW.

the paramount one in the passage of the Adamson law and also in
the machinery set up by the Director General of Railroads during
the Federal control era.

The law of 1920 marks the final stage in the establishment of the
primacy of the public interest. It is true that, in this respect, it
does no more than was done under Federal control. But Federal
control was exercised in a period of war emergency and is not to be
considered apart from the extraordinary circumstances which gave
rise to it. The 1920 statute, it seems, applies the same theory to the
adjustment of controversies in time of peace.

Even now the voluntary cooperation of the contending parties is
relied upon to settle these disputes in so far as possible by means of
conference committees. But such settlement can be set aside by the
Railroad Labor Board if it is of such a nature as to necessitate a
change in traffic rates, charged by the railroads. Here, then, is the
final capstone placed upon the recognition of the welfare of the gen
eral public.
Again, the terms of the law indicate that the enforcement of the
awards is to be secured through the cooperation of the disputants.
But with the present provisions for the giving of publicity to the
awards of the Railroad Labor Board it would, indeed, be a rash
contestant who would defy an enlightened public opinion crystallized
by the information given out by the Railroad Labor Board.
Practically, then, the Government has taken the step which the
logic of the situation demanded. The regulation of the income of
the carriers by public authority implies the obligation to regulate
the expenses also. Congress has now assumed that responsibility,
an assumption, however, which makes use of the force of public
opinion to effect a realization of the object had in view. What the
ultimate result of such a transition and development is to be, it
would be folly to predict. It looks now as if controversies on the
railroads will never again be settled as though the contending parties
were alone involved. Slowly, step by step, Congress has assumed a
position from which the people will not allow it to recede. And it
is possible that the legislation of the future will have to go even
further in the way of an enforcement of the awards. Whether the
end will be that of Government ownership, or a system of rigid and
stringent Government regulation such as to minimize the danger of
an interruption of interstate commerce, need not matter for the
purpose. The problem is by no means a simple one nor can it be
said that the final and the best solution has been reached. There is
still the possibility that the present arrangement will fail or that
it will be subjected to abuse. But enough has been done to indi
cate the growing feeling on the part of the public that this is a prob
lem for governmental activity. If the present machinery, therefore,
proves to be inadequate, new experiments will doubtless be tried.
79994°—22----- 7

APPENDIXES,
APPENDIX A.—CONSTITUTIONAL ISSUES INVOLVED IN LEGIS
LATION TO SETTLE RAILWAY LABOR DISPUTES.
The United States Government has sufficient power to grapple with the
problem of disputes and controversies on the railroads. That is, the provisions
of the Constitution are such as to make valid any action necessary for the
attainment of the end in view. This can be shown by reference to the pro
visions of the Constitution itself and by reference to the decisions of the
Federal Supreme Court in which the powers of the Government in this field
have been interpreted. There are several grounds on which action by the
Federal Government can be sustained. These are the interstate commerce
clause of the Constitution; the power of Congress to establish post offices and
post roads; the power to establish military roads; and the police power.
Throughout the discussion of the labor problem on the railroads it has
been held that the nature of the railway made this a peculiar field in which
action by the Government was warranted. Munn v . Illinois1 (1876) gave
explicit recognition to this fact. The State of Illinois enacted a statute for the
regulation of public warehouses. Justice Waite, giving the decision of the court,
indicated that the public nature of the business regulated was such as to call
for special legislation:
When, therefore, one devotes his property to a use in which the public has an
interest, he, in effect, grants to the public an interest in that use, and must
submit to be controlled for the common good to the extent of the interest he
has created. He may withdraw his grant by discontinuing the use; but so
long as he maintains the use he must submit to the control.
The above reasoning has been applied to the employee as well as to the one
who has invested his capital in an undertaking devoted to the public use. The
argument is that the worker upon entering the employ of a public-service corpo
ration has to that extent given the public an interest in his work. Therefore
the public, in the interest of self-preservation, should have the power to require
an uninterrupted performance of the work contracted for by such worker. No
worker, it is contended, is forced to enter the service of the public utilities.
And if he goes into it with his eyes open as to his duties and as to his responsi
bilities he can expect that the public will insist upon some degree of regulation
of his work, if such regulation becomes necessary as a means of securing con
tinuity of operation.
INTERSTATE COMMERCE.
Under the interstate commerce clause of the Constitution regulation of labor
difficulties on railroads can be defended. It is not considered necessary that
the Constitution express specifically the right of the Government in this particu
1 94

U. S. 113.

APPENDIX A----CONSTITUTIONAL ISSUES INVOLVED.

lar. The decision in McCulloch v . M aryland2 has established firmly the doctrine
of implied power. On that basis the Federal Government, admitting the right
to regulate interstate commerce, can adopt any means appropriate for the proper
safeguarding and protection of that commerce.
The court has defined the things that come within the meaning of the term
“ interstate commerce.” Justice Johnson, one of the justices giving a decision
in Gibbons v . Ogden (1824), said explicitly that labor legislation came within
that power:
Commerce, in its simplest significance, means an exchange of goods; but in
the advancement of society, labor, transportation, intelligence, care, and various
mediums of exchange, become commodities and enter into commence; the sub
ject, the vehicle, and their various operations, become the object of commercial
legislation.3
The decision in Gilman v . Philadelphia, although applying especially to com
merce on water, defined the power of Congress in such a way as to make it an
interesting one in connection with transportation on the railroads. Justice
Swayne said:
The power to regulate commerce comprehends the control for that purpose,
and to the extent necessary, of all the navigable waters of the United States
which are accessible from a State other than those in which they lie. For this
purpose they are public property of t le Nation, and subject to all the requisite
legislation by Congress. This necessarily includes the power to keep them open
and free from any obstruction to their navigation, interposed by the States or
otherwise; to remove any obstructions when they exist; and to provide, by such
sanctions as they may deem proper, against the occurrence of the evil and for
the punishment of offenders. For these purposes Congress possesses all the
powers which existed in the States before the adoption of the National Consti
tution, and which have always existed in the Parliament of England.4
The contention here is that there is no reason to think that the power of Con
gress in legislating for the prevention of strikes, or rather of a tie-up of the
transportation system of the country, is less than that which it has for keeping
open the waterways over which it has jurisdiction.
INTERSTATE COMMERCE AND TRANSPORTATION OF MAILS.
Reference to one case will suffice to show to what length the power of Con
gress extends for the purpose of preventing an interruption of interstate com
merce and the carrying of the mails. This case, In re Debs,5 is one of the most
interesting, as well as one of the most important, which the Federal Supreme
Court has ever decided in the m atter of the regulation of the labor end of in
terstate commerce and the carrying of the mails.
The decision of the court was discussed in Chapter II of this bulletin. Debs
and others had been enjoined by a Federal court from combining for the pur
pose-of interfering with the movement of trains in and around Chicago dur
ing the Pullman strike of 1894. They failed to obey the injunction and were
adjudged guilty of contempt of court. The Federal Supreme Court refused to
grant a writ of habeas corpus to the offenders. Mr. Justice Brewer asked whether
the relation of the National Government to the movement of interstate com
merce and the transportation of the mails authorized the Government in taking
whatever means were necessary to prevent an interruption of such commerce
and the movement of the mails. He said:
2

3
4
5

4 Wheat. 316.
9 Wheat. 229, 230.
3 Wall. 724, 725.
158 U. S. .564,

100

USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

As under the Constitution, power over interstate commerce and the trans
portation of the mails is vested in the National Government, and Congress
by virtue of such grant has assumed actual and direct control, it follows that
the National Government may prevent any unlawful interference therewith.
The entire strength of the Nation may be used to enforce in any part of the
land the full and free exercise of all national powers and the security of all
rights intrusted by the Constitution to its care. The strong arm of the National
Government may be put forth to brush away all obstructions to the freedom of
interstate commerce or the transportation of the mails. If the emergency
arises the army of the Nation and all its militia are at the service of the Nation
to compel obedience to its laws.
This would appear to be a clear recognition of the powers and of the obliga
tion of the Government* to secure the uninterrupted and continuous movement
of interstate commerce and of the mails. Measures for the prevention of a
tie-up of traffic because of a strike would come within the bounds of this
decision.
THE POLICE POWER.
The police power is another basis upon which legislation for the prevention
of railway labor troubles can be supported. A decision apparently adverse to
the extension of the power of Congress in legislating for the prevention of
railway labor troubles was made in 1908, in Adair v . U. S.® The case involved
the constitutionality of section 10 of the Erdman Act, the section which made it
unlawful for a railroad to discharge an employee because of membership or
nonmembership in a labor union. Mr. Justice Harlan held that the provision was
invalid as an interference with the freedom of contract and a deprivation of
property without due process of law :
* * * We hold that there is no such connection between interstate com
merce and membership' in a labor organization as to authorize Congress to
make it a crime against the United States for an agent of an interstate car
rier to discharge an employee because of such membership on his part.
In obiter dicta, Mr. Justice Harlan said that in the individual wage contract
the employer and the employee were on an equal basis and that no inter
ference in this contract by the Government was justified. In his dissenting
opinion, however, Mr. Justice Holmes held that this act was justified under the
police power; that the employer and the employee were not of equal power in
the individual wage contract:
I confess that I think the right to make contracts at will that has been
derived from the word “ liberty ” in the amendments has been stretched to its
extremes by the decisions; but they agree that sometimes the right may be
restrained. Where there is, or generally is believed to be, an important ground
of public policy for restraint, the court does not forbid it, whether this court
agrees or disagrees with the policy pursued. It can not be doubted that to
prevent strikes, and in so far as possible, to foster its scheme of arbitration,
might be deemed by Congress an important point of policy, and I thiqk it is
impossible to say that Congress might not reasonably think that the provision
in questiom would help a good deal to carry its policy along.
Mr. Justice Holmes dissented in the similar case of Coppage v . K ansas67 (1915).
A statute of Kansas made it illegal for an employer to declare the employment
of a workingman conditional upon his agreement not to join a labor union.
The statute was held invalid for the reasons that were said to apply in the
Adair case. Mr. Justice Holmes said that the former case should be overruled.
Mr. Justice Hughes concurred with Mr. Justice Day in a dissenting opinion:
6
7

208 U. S. 161.
236 U. S. 1.

APPENDIX A----CONSTITUTIONAL ISSUES INVOLVED.

101

It is therefore the thoroughly established doctrine of this court that liberty
of contract may be circumscribed in the interests of the States and the welfare
of the people. Whether a given exercise of such authority transcends the limits
of the legislative authority must be determined in each case as it arises.
The preservation of the police power of the States, under the authority of which
that great mass of legislation has been enacted which has for its purpose the
promotion of the health, safety, and welfare of the public, is of the utmost
importance.
The constitutionality of two employers’ liability acts (1906, 1908) has been
before the United States Supreme Court. Both these cases involved the police
power of the Federal Government. The first decision8 (1908) declared the law
as enacted by the Federal Government invalid. This was done, however, on
the ground that the law applied to employees doing only an intrastate commerce,
as well as to those engaged in interstate commerce. But the dissenting opinion
of Justice Moody is relevant to the query here. He said :
It would seem, therefore, that when persons are employed in interstate or
foreign commerce, as the employment is an essential part of that commerce,
its terms and conditions and the rights and duties which grow out of it, are
under the control of Congress, subject only to the limits on the exercise of
that control prescribed by the Constitution. This has been the view always
expressed or implied by this court.
The second employers’ liability law was upheld by the Federal Supreme
C ourt9 (1912). The decision of the court as given by Mr. Justice Van Devanter
defined the powder of Congress over interstate commerce:
This power over commerce among the States, so conferred upon Congress,
is complete in itself, extends incidentally to every instrument and agent by
which such commerce is carried on, may be exerted to its utmost extent over
every part of such commerce, and is subject to no limitations save such as are
prescribed in the Constitution. But, of course, it does not extend to any
matter which does not have a real or substantial relation to such commerce.
It would appear that this substantial relationship does exist between inter
state commerce and the prevention of an interruption of the movement of
such commerce because of strikes on the railroads.
Further evidence of the power of Congress to grapple with the situation is
apparent in the decision of the Supreme Court in upholding the Adamson law
in 1917.10 Mr. Chief Justice White said that the establishment of the 8-hour day
for railway employees was so evidently within the power of Congress that he
would not discuss the matter. The law was upheld strictly as an emergency
measure for the prevention of an interruption of interstate commerce. After
having given a description of the threatened interruption, Mr. Chief Justice
White said:
We are of opinion that the reasons stated establish that from the point of
view of inherent power the act which is before us was clearly within the
legislative power of Congress to adopt, and that in substance and effect it
amounted to an exertion of its authority under the circumstances to com
pulsorily arbitrate the dispute between the parties by establishing as the subject
matter of that dispute a legislative standard of wages operative and binding
as a matter of law upon both parties, * * * a power none the less
efficaciously exerted by direct legislative act instead of by the enactment of
other and appropriate means providing for the bringing about of such result.
The decision of Adair v. U. S., in so far as the right to contract was in
volved, seems to have been overruled by this later decision:
In other words, considering comprehensively the situation of the employer
and the employee in the light of the obligations arising from the public interest
8 207 U. S. 463.
S 1
v. New, 243 TJ. S. 332 (1917).

9 223 U
10 Wilson

102 USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.
and of the work in which they are engaged and the degree of legislation which
may be lawfully exerted by Congress as to the business, it must follow that the
exercise of the lawful governmental right is controlling. * * * The capacity
to exercise the right free from legislative interference affords no ground for
saying that legislative power does not exist to protect the public interest from
the injury resulting from a failure to exercise the private right.
An examination of the cases cited shows that the power of Congress in
legislating for the prevention of railway labor strikes, or for the prevention of
an interruption of the movement of interstate commerce for any reason, is
ample to meet the situation at the present time in the United States. The only
limitation is that placed upon the method of regulation, i. e., that it shall not
violate any constitutional provision. Since the question of constitutionality is
no barrier to the organization'of some preventive agency, it remains for the
American people, through Congress, to decide which of the possible methods
is, in the long run, the best one and the one calculated to produce the desired
results.

APPENDIX B.—TEXT OF ACTS REGULATING RAILWAY LABOR
DISPUTES.
ACT OF OCTOBER 1, 1888.
[25 Stat. 501.]
Section 1. Whenever differences or controversies arise between railroad or
other transportation companies engaged in the transportation of property or
passengers between two or more States of the United States, between a Terri
tory and State, within the Territories of the United States, or within tbe Dis
trict of Columbia, and the employees of said railroad companies, which differ
ences or controversies may hinder, impede, obstruct, interrupt, or affect such
transportation of property or passengers, if, upon the written proposition of
either party to the controversy to submit their differences to arbitration, the
other party shall accept the proposition, then and in such event the railroad com
pany is hereby authorized to select and appoint one person, and such employee
or employees, as the case may be, to select and appoint another person, and the
two persons thus selected and appointed to select a third person, all three of
whom shall be citizens of the United States and wholly impartial and dis
interested in respect to such differences or controversies; and the three persons
thus selected and appointed shall be, and they are hereby, created and consti
tuted a board of arbitration, with the duties, powers, and privileges hereinafter
set forth.
Sec. 2. The board of arbitration provided for in the first section of this act
shall possess all the powers and authority in respect to administering oaths,
subpoenaing witnesses and compelling their attendance, preserving order during
the sittings of the board, and requiring the production of papers and writings
relating alone to the subject under investigation now possessed and belonging to
the United States commissioners appointed by the circuit court of the United
States; but in no case shall any witness be compelled to disclose the secrets or
produce the records or proceedings of any labor organization of which he may
be an officer or member; and said board of arbitration may appoint a clerk and
employ a stenographer, and prescribe all reasonable rules and regulations, not
inconsistent with the provisions of this act, looking to the speedy advancement
of the differences and controversies submitted to them to a conclusion and de
termination. Each of said arbitrators shall take an oath to honestly, fairly,
and faithfully perform his duties, and that he is not personally interested in
the subject matter in controversy, which oath may be administered by any
State or Territorial officer authorized to administer oaths. The third person
so selected and appointed as aforesaid shall be president of said board; any
order, finding, conclusion, or award made by a majority of such arbitrators
shall be of the same force and effect as if all three of such arbitrators concurred
therein or united in making the same.
■Sec . 3. It shall be the duty of the said board of arbitration, immediately
upon their selection, to organize at the nearest practicable point to the place
of the origin of the difficulty or controversy, and to hear and determine the
matters of difference which may be submitted to them in writing by all the
parties, giving them full opportunity to be heard on oath, in person and by
witnesses, and.also granting them the right to be represented by counsel; and
after concluding its investigations said board shall publicly announce its de
cision, which, with the findings of fact upon which it is based, shall be reduced
to writing and signed by the arbitrators concurring therein, and, together with
the testimony taken in the case, shall be filed with the Commissioner of Labor
of the United States, who shall make such decision public as soon as the same
shall have been received by him.
103

104

USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

Sec . 4. It shall be the right of any, employees engaged in the controversy to
appoint, by designation in writing, one or more persons to act for them in the
selection of an arbitrator to represent them upon the board of arbitration.
Sec . 5. Each member of said tribunal of arbitration shall receive a com
pensation of ten dollars a day for the time actually employed. That the clerk
appointed by said tribunal of arbitration shall receive the same fees and com
pensation as clerks of United States circuit courts and district courts receive
for like services. The stenographer shall receive as full compensation for his
services ten cents for each folio of an hundred words of testimony taken and
reduced to writing before said arbitrators. United States marshals or other
persons serving the process of said tribunal of arbitration shall receive the same
fees and compensation for such services as they would receive for like services
upon the process issued by the United States commissioners. Witnesses attend
ing before said tribunal of arbitration shall receive the same fees as witnesses
attending before United States commissioners. All of said fees and compensa
tion shall be payable by the United States in like manner as fees and compen
sation are payable in criminal causes under existing law s: P r o v id e d , That the
said tribunal of arbitration shall have power to limit the number of witnesses
in each case where* fees shall be paid by the United States: A n d p r o v id e d
f u r th e r , That the fees and compensation of the arbitrators, clerks, stenog
raphers, marshals, and others for service of process, and witnesses under this
act shall be examined and certified by the United States district judge of the
district in which the arbitration is held before they are presented to the account
ing officers of the Treasury Department for settlement, and shall then be sub
ject to the provisions of section eight hundred and forty-six of the Revised
Statutes of the United States; and a sufficient sum of money to pay all
expenses under this act and to carry the same into effect is hereby appropriated
out of any money in the Treasury not otherwise appropriated. A n d p r o v id e d
lik e w is e , Not more than five thousand dollars shall be expended in defraying
the costs of any single investigation by the commission hereinafter provided for.
Sec . 6. The President may select two commissioners, one of whom at least
shall be a resident of the State or Territory in which the controversy arises,
who, together with the Commissioner of Labor, shall constitute a temporary
commission for the purpose of examining the causes of the controversy, the
conditions accompanying, and the best means for adjusting i t ; the result of
which examination shall be immediately reported to the President and Congress,
and on the rendering of such report the services of the two commissioners shall
cease. The services of the commission, to be ordered at the time by the Presi
dent and constituted as herein provided, may be tendered by the President for
the purpose of settling a controversy such as contemplated, either upon his own
motion, or upon the application of one of the parties to the controversy, or
upon the application of the executive of the State.
Sec . 7. The commissioners provided in the preceding section shall be entitled
to receive ten dollars each per day for each day’s service rendered, and the
expenses absolutely incurred in the performance of their duties; and the
expenses of the Commissioner of Labor, acting as one of the commission, shall
also be reimbursed to him. Such compensation and expenses shall be paid by
the Treasurer of the United States, on proper vouchers, certified to by the
Commissioner of Labor and approved by the Secretary of the Interior.
Sec . 8. Upon the direction of tlie President, as hereinbefore provided, the
commission shall visit the locality of the pending dispute, and shall have all
the powers and authority given in section 2, to a board of arbitration, and
shall make careful inquiry into the cause thereof, hear all persons interested
therein who may come before it, advise the respective parties what, if any
thing, ought to be done or submitted to by either or both to adjust such dispute,
and make a written decision thereof. This decision shall at once be made
public, shall be recorded upon proper books of record to be kept in the office of
the Commissioner of Labor, who shall cause a copy thereof to be filed with the
secretary of the State or Territory, or States or Territories, in which the con
troversy exists.
S ec . 9. In each case the commissioners who may be selected as provided shall,
before entering upon their duties, be sworn to the faithful discharge thereof.
The Commissioner of Labor shall be chairman ex officio of the commission, and
may appoint one or more clerks or stenographers to act in each controversy only,
which clerks or stenographers shall be compensated at a rate not exceeding six
dollars per day each, and actual expenses incurred shall be reimbursed.

APPENDIX B— TEXT OF ACTS.

105

Sec. 10. The Commissioner of Labor shall, as soon as possible after the
passage of this act, establish such rules of procedure as shall be approved by the
President; but the commission shall permit each party to a controversy to
appear in person or by counsel, and to examine and cross-examine witnesses.
All its proceedings shall be transacted in public, except when in consultation for
the purpose of deciding upon the evidence and arguments laid before it. The
chairman of the commission is hereby authorized to administer oaths to wit
nesses in all investigations conducted by the commission, and such witnesses
shall be subpoenaed in the same manner as witnesses are subpoenaed to appear
before United States courts and commissioners, and they shall each receive the
same fees as witnesses attending before United States commissioners: P r o v id e d .
That said temporary board of commissioners shall have the power to limit the
number of witnesses in each case where fees shall be paid by the United States.
Sec . 11. All fees, expenses, and compensation of this commission shall be
paid as hereinbefore provided in section five of this act.
ACT OF JUNE 1, 1898 (ERDMAN ACT).
[30 Stat. 424.]

The provisions of this act shall apply to any common carrier or carriers
and their officers, agents, and employees, except masters of vessels and seamen,
as defined in section forty-six hundred and twelve, Revised Statutes of the
United States, engaged in the transportation of passengers or property wholly
by railroad, or partly by railroad and partly by water, for a continuous
carriage or shipment, from one State or Territory of the United States, or the
District of Columbia, to any other State or Territory of the United States,
or the District of Columbia, or from any place in the United States to an
adjacent foreign country, or from any place in the United States through a
foreign country .to any other place in the United States.
The term “ railroad ” as used in this act shall include all bridges and ferries
used or operated in connection with any railroad, and also all the road in
use by any corporation operating a. railroad, whether owned or operated
under a contract, agreement, or lease; and the term “ transportation ” shall
include all instrumentalities of shipment or carriage.
The term “ employees ” as used in this act shall include all persons actually
engaged in any capacity in train operation or train service of any description,
and notwithstanding that the cars upon or in which they are employed may
be held and operated by the carrier under lease or other contract: P r o v id e d ,
h o w e v e r, That this act shall not be held to apply to employees of street
railroads and shall apply only to employees engaged in railroad train service.
In every such case the carrier shall be responsible for the acts and defaults
of such employees in the same manner and to the same extent as if said
cars were owned by it and said employees directly employed by it, and any
provisions to the contrary of any such lease or other contract shall be binding
only as between the parties thereto and shall not affect the obligations of
said carrier either to the public or to the private parties concerned.
S ec . 2. That whenever a controversy concerning wages, hours of labor, or
conditions of employment shall arise between a carrier subject to this act and
the employees of such carrier, seriously interrupting or threatening to inter
rupt the business of said carrier, the chairman of the Interstate Commerce
Commission and the Commissioner of Labor shall, upon the request of either
party to the controversy, with all practicable expedition, put themselves in
communication with the parties to such controversy, and shall use their best
efforts, by mediation and conciliation, to amicably settle the same; and if
such efforts shall be unsuccessful, shall at Qnce endeavor to bring about an
arbitration of said controversy in accordance with the provisions of this act.
Sec . 3. That whenever a controversy shall arise between a carrier subject
to this act and the employees of such carrier which can not be settled by
mediation and conciliation in the manner provided in the preceding section,
said controversy may be submitted to the arbitration of a board of three per
sons, who shall be chosen in the manner following: One shall be named by the
carrier or employer directly interested; the other shall be named by the labor
organization to which the employees directly interested belong, or, if they
belong to more than one, by that one of them which specially represents em
ployees of the same grade and class and engaged in services of the same nature
as said employees so directly interested: P r o v id e d , h o w e v e r , That when a con

106

USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

troversy involves and affects the interests of two or more classes and grades
of employees belonging to different labor organizations, such arbitrator shall
be agreed upon and designated by the concurrent action of all such labor organ
izations ; and in cases where the majority of such employees are not members
of any labor organization, said employees may by a majority vote select a
committee of their own number, which committee shall have the right to select
the arbitrator on behalf of said employees. The two thus chosen shall select
the third commissioner of arbitration; but, in the event of their failure to name
such arbitrator within five days after their first meeting, the third arbitrator
shall be named by the commissioners named in the preceding. A majority of
said arbitrators shall be competent to make a valid and binding award under
the provisions hereof. The submission shall be in writing, shall be signed by
the employer and by the labor organization representing the employees, shall
specify the time and place of meeting of said board of arbitration, shall state
the questions to be decided, and shall contain appropriate provisions by which
the respective parties shall stipulate, as follows:
First. That the board of arbitration shall commence their hearings within
ten days from the date of the appointment of the third arbitrator, and shall
find and file their award, as provided in this section, within thirty days from
the date of the appointment of the third arbitrator; and that pending the arbi
tration the status existing immediately prior to the dispute shall not be
changed: P r o v id e d , That no employee shall be compelled to render personal
service without his consent.
Second. That the award and the papers and proceedings, including the testi
mony relating thereto certified under the hands of the arbitrators and which
shall have the force and effect of a bill of exceptions, shall be filed in the
clerk’s office of the circuit court of the United States for the district wherein
the controversy arises or the arbitration is entered into, and shall be final and
conclusive upon both parties, unless set aside for error of law apparent on
the record.
Third. That the respective parties to the award will each faithfully execute
the same, and that the same may be specifically enforced in equity so far as
the powers of a court of equity perm it: P r o v id e d , That no injunction or other
legal process shall be issued which shall compel the performance by any laborer
against his will of a contract for personal labor or service.
Fourth. That employees dissatisfied with the award shall not by reason of
such dissatisfaction quit the service of the employer before the expiration of
three months from and after the making of such award without giving thirty
days’ notice in waiting of their intention so to quit. Nor shall the employer
dissatisfied with such award dismiss any employee or employees on account of
such dissatisfaction before the expiration of three months from and after the
making of such award without giving thirty days’ notice in writing of his
intention so to discharge.
Fifth. That said award shall continue in force as between the parties thereto
for the period of one year after the same shall go into practical operation, and
no new arbitration upon the same subject between the same employer and the
same class of employees shall be had until the expiration of said one year if
the award is not set aside as provided in section four. That as to individual
employees not belonging to the labor organization or organizations which shall
enter into the arbitration, the said arbitration and the award made therein
shall not be binding, unless the said individual employees shall give assent in
writing to become parties to said arbitration.
S ec . 4. That the award being filed in the clerk’s office of a circuit court of the
United States, as hereinbefore provided, shall go into practical operation, and
judgment shall be entered thereon accordingly at the expiration of ten days
from such filing, unless within such ten days either party shall file exceptions
thereto for matter of law apparent upon the record, in which case said award
shall go into practical operation and judgment be entered accordingly when
such exceptions shall have been finally disposed of either by said circuit court
or on appeal therefrom.
At the expiration of ten days from the decision of the circuit court upon
exceptions taken to said award, as aforesaid, judgment shall be entered in
accordance with said decision unless during said ten days either party shall
appeal therefrom to the circuit court of appeals. In such case only such portion
of the record shall be transmitted to the appellate court as is necessary to the
proper understanding and consideration of the questions of law presented by
said exceptions and to be decided.

APPENDIX B— TEXT OF ACTS.

107
The determination of said circuit court of appeals upon said questions shall
be final, and being certified by the clerk thereof to said circuit court, judgment
pursuant thereto shall thereupon be entered by said circuit court.
If exceptions to an award are finally sustained, judgment shall be entered
setting aside the award. But in such case the parties may agree upon a
judgment to be entered disposing of the subject matter of the controversy,
which judgment when entered shall have the same force and effect as judgment
entered upon an award.
S ec .. 5. That for the purposes of this act the arbitrators herein provided for,
or either of them, shall have power to administer oaths and affirmations, sign
subpoenas, require the attendance and testimony of witnesses, and the produc
tion of such books, papers, contracts, agreements, and documents material to a
just determination of the matters under investigation as may be ordered by
the court; and may invoke the aid of the United States courts to compel wit
nesses to attend and testify and to produce such books, papers, contracts, agree
ments, and documents to the same extent and under the same conditions and
penalties as is provided for in the act to regulate commerce, approved February
fourth, eighteen, hundred and eighty-seven, and the amendments thereto.
S ec . 6 . That every agreement of arbitration under this act shall be acknowl
edged by the parties before a notary public or clerk of a district or circuit* court
of the United States, and when so acknowledged a copy of the same shall be
transmitted to the chairman of the Interstate Commerce CQinmission, who shall
file the same in the office of said commission.
Any agreement of arbitration which shall be entered into conforming to this
act, except that it shall be executed by employees individually instead of by a
labor organization as their representative, shall, when duly acknowledged as
herein provided, be transmitted to the chairman of the Interstate Commerce
Commission, who shall cause a notice in writing to be served upon the arbi
trators, fixing a time and place for a meeting of said board, which shall be
within fifteen days from the execution of said agreement of arbitration: P r o
v id e d , h o w e v e r , That the said chairman of the Interstate Commerce Commission
shall decline to call a meeting of arbitrators under such agreement unless it be
shown to his satisfaction that the employees signing the submission represent
or include a majority of all employees in the service of the same employer and
of the same grade and class, and that an award pursuant to said submission
can justly be regarded as binding upon all such employees.
Sec . 7. That during the pendency of arbitration under this act it shall not
be lawful for the employer, party to such arbitration, to discharge the em
ployees, parties thereto, except for inefficiency, violation of law, or neglect of
duty; nor for the organization representing such employees to order, nor for
the employees to unite in, aid, or abet, strikes against said employer; nor,
during a period of three months after an award under such an arbitration,
for such employer to discharge any such employees, except for the causes
aforesaid, without giving thirty days’ written notice of an intent so to dis
charge ; nor for any of such employees, during a like period, to quit the service
of said employer without just cause, without giving to said employer thirty
days’ written notice of an intent so to do; nor for such organization represent
ing such employees to order, counsel, or advise otherwise. Any violation
of this section shall subject the offending party to liability for damages: P ro
v id e d , That nothing herein contained shall be construed to prevent any em
ployer, party to such arbitration, from reducing the number of its or his em
ployees whenever in its or his judgment business necessities require such re
duction.
Sec . 8. That in every incorporation under the provisions of chapter five
hundred and sixty-seven of the United States Statutes of eighteen hundred and
eighty-five and eighteen hundred and eighty-six it must be provided in the
articles of incorporation and in the constitution, rules, and by-laws that a
member shall cease to be such by participating in or by instigating force or
violence against'persons or property during strikes, lockouts, or boycotts, or by
seeking to prevent others from working through violence, threats, or intimida
tions. Members of such incorporations shall not be personally liable for the
acts, debts, or obligations of the corporations, nor shall such corporations be
liable for the acts of members or others in violation of law ; and such corpora
tions may appear by designated representatives before the board created by this
act, or in any suits or proceedings for or against such corporations or their
members in any of the Federal courts.

108

USE OF FEDERAL POWER US’ RAILWAY LABOR DISPUTES,

S ec . 9. That whenever receivers appointed by Federal courts are in the
possession and control of railroads, the employees upon such railroads shall
have the right to be heard in such courts upon all questions affecting the terms
and conditions of their employment, through the officers and representatives
of their associations, whether incorporated or unincorporated, and no reduc
tion of wages shall be made by such receivers without the authority of the
court therefor upon notice to such employees, said notice to be not less than
twenty days before the hearing upon the receivers’ petition or application,
and to be posted upon all customary bulletin boards along or upon the railway
operated by such receiver or receivers.
Sec . 10. That any employer subject to the provisions of this act and any
officer, agent, or receiver of such employer who shall require any employee, or
any person seeking employment, as a condition of such employment, to enter
into an agreement, either written or verbal, not to become or remain a member
of any labor corporation, association, or organization; or shall threaten any
employee with loss of employment, or shall unjustly discriminate against any
employee because of his membership in such a labor corporation, association, or
organization; or who shall require any employee or any person seeking employ
ment, as a condition of such employment, to enter into a contract whereby such
employee or applicant for employment shall agree to contribute to any fund
for charitable, social, or beneficial purposes; to release such employer from
legal liability for apy personal injury by reason of any benefit received from
such fund beyond the proportion of the benefit arising from the employer’s con
tribution to such fund; or who shall, after having discharged an employee,
attempt or conspire to prevent such employee from obtaining employment, or
who shall, after the quitting of an employee, attempt or conspire to prevent such
employee from obtaining employment, is hereby declared to be guilty of a mis
demeanor, and, upon conviction thereof in any court of the United States of
competent jurisdiction in the district in which such offense was committed,
shall be punished for each offense by a fine of not less than one hundred dollars
and not more than one thousand dollars.
S ec . 11. That each member of said board of arbitration shall receive a com
pensation of ten dollars per day for the time he is actually employed, and his
traveling and other necessary expenses; and a sum of money sufficient to pay
the same, together with the traveling and other necessary and proper expenses
of any conciliation or arbitration had hereunder, not to exceed ten thousand
dollars in any one year, to be approved by the chairman of the Interstate Com
merce Commission and audited by the proper accounting officers of the Treasury,
is hereby appropriated for the fiscal years ending June thirtieth, eighteen hun
dred and ninety-eight, and June thirtieth, eighteen hundred and ninety-nine,
out of any money in the Treasury not otherwise appropriated.
S ec . 12. That the act to create boards of arbitration or commission for set
tling controversies and differences between railroad corporations and other com
mon carriers engaged in interstate or territorial transportation of property or
persons and their employees, approved October first, eighteen hundred- and
eighty-eight, is hereby repealed.

ACT OF JULY 15, 1913 (NEWLANDS ACT).
[38 Stat., 63d Cong., ch. 6.]

APPENDIX B— TEXT OF ACTS.

109

and notwithstanding that the cars upon or in which they are employed may
be held and operated by the carrier under lease or other contract: P r o v id e d ,
h o w e v e r , That this act shall not he held to apply to employees of street rail
roads and shall apply only to employees engaged in railroad train service. In
every such case the carrier shall be responsible for the acts and defaults of
such employees in the same manner and to the same extent as if said cars
were owned by it and said employees directly employed by it, and any pro
visions to the contrary of any such lease or other contract shall be binding
only as between the parties thereto and shall not affect the obligations of
said carrier either to the public or to the private parties concerned.
A common carrier subject to the provisions of this act is hereinafter referred
to as an “ employer,” and the employees of one or more of such carriers are
hereinafter referred to as “employees.”
Sec . 2. That whenever a controversy concerning wages, hours of labor, or
conditions of employment shall arise between an employer or employers and
employees subject to this act interrupting or threatening to interrupt the busi
ness of said employer or employers to the serious detriment of the public
interest, either party to such controversy may apply to the Board of Mediation
and Conciliation created by this act and invoke its services for the purpose
of bringing about an amicable adjustment of the controversy; and upon the
request of either party the said board shall with all practicable expedition
put itself in communication with the parties to such controversy and shall
use its best efforts, by mediation and conciliation, to bring them to an agree
ment; and if such efforts to bring about an amicable adjustment through
mediation and conciliation shall be unsuccessful, the said board shall at once
endeavor to induce the parties to submit their controversy to arbitration in
accordance with the provisions of this act.
In any case in which an interruption of traffic is imminent and fraught with
serious detriment to the public interest, the Board of Mediation and Conciliation
may, if in its judgment such action seem desirable, proffer its services to the
respective parties to the controversy.
In any case in which a controversy arises over the meaning or the application
of any agreement reached through mediation under the provisions of this
act either party to the said agreement may apply to the Board of Mediation
and Conciliation for an expression of opinion from such board as to the
meaning or application of such agreement and the said board shall upon receipt
of such request give its opinion as soon as may be practicable.
Sec . 3. That whenever a controversy shall arise between an employer or
employers and employees subject to this act, which can not be settled through
mediation and conciliation in the manner provided in the preceding section,
such controversy may be submitted to the arbitration of a board of six, or,
if the parties to the controversy prefer so to stipulate, to a board of three
persons, which board shall be chosen in the following manner: In the case
of a board of three, the employer or employers and the employees, parties
respectively to the agreement to arbitrate, shall each name one arbitrator;
and the two arbitrators thus chosen shall select the third arbitrator; but in
the event of their failure to name the third arbitrator within five days after
their first meeting, such third arbitrator shall be named by the Board of
Mediation and Conciliation. In the case of a board of six, the employer or
employers and the employees, parties respectively to the agreement to arbitrate,
shall each name two arbitrators, and the four arbitrators thus chosen shall,
by a majority vote, select the remaining two arbitrators; but in the event of
their failure to name the two arbitrators within fifteen days after their first
meeting the said two arbitrators, or as many of them as have not been named,
shall be named by the Board of Mediation and Conciliation.
In the event that the employees engaged in any given controversy are not
members of a labor organization, such employees may select a committee which
shall have the right to name the arbitrator, or the arbitrators, who are to be
named by the employees as provided above in this section.
Sec . 4. That the agreement to arbitrate—
First. Shall be in writing;
Second. Shall stipulate that the arbitration is had under the provisions of
this act;
Third. Shall state whether the board of arbitration is to consist of three
or six members;
Fourth. Shall be signed by duly accredited representatives of the employer
or employers and of the employees;

110

USE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

Fifth. Shall state specifically the questions to be submitted to the said
board for decision;
Sixth. Shall stipulate that a majority of said board shall be' competent to
make a valid and binding aw ard;
Seventh. Shall fix a period from the date of the appointment of the arbi
trator or arbitrators necessary to complete the board, as provided for in the
agreement, within which the said board shall commence its hearings;
Eighth. Shall fix a period from the beginning of the hearings within which
the said board shall make and file its aw ard: P r o v id e d , That this period shall
be thirty days unless a different period be agreed to ;
,
Ninth. Shall provide for the date from which the award shall become effec
tive and shall fix the period during which the said award shall continue in
force;
Tenth. Shall provide that the respective parties to the award will each faith
fully execute the same;
Eleventh. Shall provide that the award and the papers and proceedings,
including the testimony relating thereto, certified under the hands of the
arbitrators, and which shall have the force and effect of a bill of exceptions,
shall be filed in the clerk’s office of the district court of the United States
for the district wherein the controversy .arises or the arbitration is entered
into, and shall be final and conclusive upon the parties to the agreement
unless set aside for error of law apparent on the record;
Twelfth. May also provide that any difference arising as to the meaning
or the application of the provisions of an award made by a board of arbitra
tion shall be referred back to the same board or to a subcommittee of such
board for a ruling, which ruling shall have the same force and effect as the
original aw ard; and if any member of the original board is unable or unwilling
to serve another arbitrator shall be named in the same manner as such original
member was named.
S ec . 5. That for the purposes of this act the arbitrators herein provided for,
.or either of them, shall have power to administer oaths and affirmations, sign
subpoenas, require the attendance and testimony of witnesses and the produc
tion of such books, papers, contracts, agreements, and documents material to
a just determination of the matters under investigation as may be ordered
by the court; and may invoke the aid of the United States courts to compel
witnesses to attend and testify and to produce such books, papers, contracts,
agreements, and documents to the same extent and under the same conditions
and penalties as is provided for in the act to regulate commerce, approved
February fourth, eighteen hundred and eighty-seven, and the amendments
thereto.
Sec . . That every agreement of arbitration under this act shall be acknowl
edged by the parties thereto before a notary public or a clerk of the district
or the circuit court of appeals of the United States, or before a member of
the Board of Mediation and Conciliation, the members of which are hereby
authorized to take such acknowledgments; and when so acknowledged shall
be delivered to a member of said board or transmitted to said board to be
filed in its office.
When such agreement of arbitration has been filed with the said board, or
one of its members, and when the said board, or a member thereof, has been
furnished the names of the arbitrators chosen by the respective parties to the
controversy, the board, or a member thereof, shall cause a notice in writing
to be served upon the said arbitrators, notifying them of their appointment,
requesting them to meet promptly to name the remaining arbitrator or arbi
trators necessary to complete the board, and advising them of the period within
which, as provided in the agreement of arbitration, they are empowered to
name such arbitrator or arbitrators.
When the arbitrators selected by the respectiye parties have agreed upon
the remaining arbitrator or arbitrators, they shall notify the Board of Media
tion and Conciliation; and in the event of their failure to agree upon any or
upon all of the necessary arbitrators within the period fixed by this act they
shall, at the expiration of such period, notify the Board of Mediation and
Conciliation of the arbitrators selected, if any, or of their failure to make
or to complete such selection.
If the parties to an arbitration desire the reconvening of a board to pass
upon any controversy arising over the meaning or application of an award,
they shall jointly so notify the Board of Mediation and Conciliation, and shall
in
written
or questions to be submitted to sueh
6

s ta te

s h e ll

n o tice

th e

q u e s tio n

APPENDIX B— TEXT OF ACTS.

Ill

reconvened board. The Board of Mediation and Conciliation shall thereupon
promptly communicate with the members of the board of arbitration or a sub
committee of such board appointed for such purpose pursuant to the provisions
of the agreement of arbitration, and arrange for the reconvening of said board
or subcommittee, and shall notify the respective parties to the controversy of
the time and place at which the board will meet for hearings upon the mat
ters in controversy to be submitted to it.
S ec . 7. That the board of arbitration shall organize and select its own chair
man, and make all necessary rules for conducting its hearings; but in its
award or awards the said board shall confine itself to findings or recommenda
tions as to the questions specifically submitted to it or matters directly bear
ing thereon. All testimony before said board shall be given under oath or
affirmation, and any member of the board of arbitration shall have the power
to administer oaths or affirmations. It may employ such assistants as may
be necessary in carrying on its work. It shall, whenever practicable, be sup
plied with suitable quarters in any Federal building located at its place of
meeting or at any place where the board may adjourn for its deliberations.
The board of arbitration shall furnish a certified copy of its awards to the
respective parties to the controversy, and shall transmit the original, together
with the papers and proceedings and a transcript of the testimony taken at
the hearings, certified under the hands of the arbitrators, to the clerk of the
district court of the United States for the district wherein the controversy
arose or the arbitration is entered into, to be filed in said clerk’s; office as
provided in paragraph eleven of section four of this act. And said board shall
also furnish a certified copy of its award, and the papers and proceedings,
including the testimony relating thereto, to the Board of Mediation and Con
ciliation, to be filed in its office.
The United States Commerce Court, the Interstate Commerce Commission,
and the Bureau of Labor Statistics are hereby authorized to turn over to the
Board of Mediation and Conciliation upon its request any papers and docu
ments heretofore filed with them and bearing upon mediation or arbitration
proceedings held under the provisions of the act approved June first, eighteen
hundred and ninety-eight, providing for mediation and arbitration.*
Sec . 8. That the award, being filed in the clerk’s office of a district court
of the United States as hereinbefore provided, shall go into practical opera
tion, and judgment shall be entered thereon accordingly at the expiration of
ten days from such filing, unless within such ten days either party shall file
exceptions thereto' for matter of law apparent upon the record, in which case
said award shall go into practical operation, and judgment be entered accord
ingly, when such exceptions shall have been finally disposed of either by said
district court or on appeal therefrom.
At the expiration of ten days from the decision of the district court upon ex
ceptions taken to said award as aforesaid judgment shall be entered in accord
ance with said decision, unless during said ten days either party shall appeal
therefrom to the circuit court of appeals. In such case only such portion of the
record shall be transmitted to the appellate court as is necessary to the proper
understanding and consideration of the questions of law presented by said
exceptions and to be decided.
The determination of said circuit court of appeals upon said questions shall be
final, and, being certified by the clerk thereof to said district court, judgment
pursuant thereto shall thereupon be entered by said district court.
If exceptions to an award are finally sustained, judgment shall be entered set
ting aside the award in whole or in p a rt; but in such case the parties may agree
upon a judgment to be entered disposing of the subject m atter of the contro
versy, which judgment when entered shall have the same force and effect as
judgment entered upon an award.
Nothing in this act contained shall be construed to require an employee to
render personal service without his consent, and no injunction or other legal
process shall be issued which shall compel the performance by any employee
against his will of a contract for personal labor or service.
Sec . 9. That whenever receivers appointed by a Federal court are in the pos
session and control of the business of employers covered by this act the em
ployees of such employers shall have the right to be heard through their rep
resentatives in such court upon all questions affecting the terms and con
ditions of their employment; and no reduction of wages shall be made by such
receivers without the authority of the court therefor, after notice to such em
ployees, said notice to be given not less than twenty days before the hearing

112

USB OP FEDERAL POWER IN RAILWAY LABOR DISPUTES.

upon the receivers’ petition or application, and to be posted upon all customary
bulletin boards along or upon the railway or in the customary places on the
premises of other employers covered by this act.
Sec . 10. That each member of the board of arbitration created under the pro
visions of this act shall receive such compensation as may be fixed by the Board
of Mediation and Conciliation, together with his traveling and other necessary
expenses. The sum of $25,000 or so much thereof as may be necessary, is hereby
appropriated, to be immediately , available and to continue available until the
close of the fiscal year ending June thirtieth, nineteen hundred and fourteen, for
the necessary and proper expenses incurred in connection with any arbitration
or with the carrying on of the work of mediation and conciliation, including
per diem, traveling, and other necessary expenses of members or employees of
boards of arbitration and rent in the District of Columbia, furniture, office
fixtures and supplies, books, salaries, traveling expenses, and other necessary
expenses of members or employees of the Board of Mediation and Conciliation,
to be approved by the chairman of said board and audited by the proper ac
counting officers of the Treasury.
S ec . 11. There shall be a Commissioner of Mediation and Conciliation, who
shall be appointed by the President, by and with the advice and consent of the
Senate, and whose salary shall be $7,500 per annum, who shall hold his office
for a term of seven years and until a successor qualifies, and who shall be re
movable by the President only for misconduct in office. The President shall
also designate not more than two other officials of the Government who have
been appointed by and with the advice and consent of the Senate, and the offi
cials thus designated, together with the Commissioner of Mediation and Con
ciliation, shall constitute a board to be known as the United States Board of
Mediation and Conciliation.
There shall also be an Assistant Commissioner of Mediation and Conciliation,
who shall be appointed by the President, by and with the advice and consent of
the Senate, and whose salary shall be $5,000 per annum. In the absence of the
Commissioner of Mediation and Conciliation, or when that office shall become
vacant, the assistant commissioner shall exercise the functions and perform
the duties.of that office. Under the direction of the Commissioner of Mediation
and Conciliation, the assistant commissioner shall assist in the work of media
tion and conciliation and when acting alone in any case he shall have the right
to take acknowledgments, receive agreements of arbitration, and cause the
notices in writing to be served upon the arbitrators chosen by the respective
parties to the controversy, as provided for in section five of this act.
The act of June first, eighteen hundred and ninety-eight, relating to the media
tion and arbitration of controversies between railway companies and certain
classes of their employees is hereby repealed: P r o v id e d , That any agreement of
arbitration which, at the time of the passage of this act, shall have been exe
cuted in accordance with the provisions of said act of June first, eighteen hun
dred and ninety-eight, shall be governed by the provisions of said act of June
first, eighteen hundred and ninety-eight, and the proceedings thereunder shall
be conducted in accordance with the provisions of said act.
ACT OF SEPTEMBER 3,.5, 1916 (ADAMSON LAW).
[39 Stat., 64th Cong., Part I, eh. 436.]

Beginning January first, nineteen hundred and seventeen, eight hours shall,
in contracts for labor and service, be deemed a day’s work and the measure or
standard of a day’s work for the purpose of reckoning the compensation for serv
ices of all employees who are now or may hereafter be employed by any common
carrier by railroad, except railroads independently owned and operated not
exceeding one hundred miles in length, electric street railroads, and electric
interurban railroads, which is subject to the provisions of the act of February
fourth, eighteen hundred and eighty-seven, entitled “An act to regulate com
merce,” as amended, and who are now or may hereafter be actually engaged in
any capacity in the operation of trains used for the transportation of persons or
property on railroads, except railroads independently owned and operated not
exceeding one hundred miles in length, electric street railroads, and electric
interurban railroads, from any State or Territory of the United States or the
District of Columbia, to any other State or Territory of the United States or the
District of Columbia, or from one place in a Territory to another place in the
same Territory, or from any place in the United States to an adjacent foreign

APPENDIX B----TEXT OF ACTS.

113

country, or from any place in the United States through a foreign country to
any other place in the United States: P r o v id e d , That the above exceptions shall
not apply to railroads though less than one hundred miles in length whose prin
cipal business is leasing or furnishing terminal or transfer facilities to other
railroads, or are themselves engaged in transfers of freight between railroads or
between railroads and industrial plants.
S ec . 2. That the President shall appoint a commission of three, which shall
observe the operation and effects of the institution of the eight-hour standard
workday as above defined and the facts and conditions affecting the relations
between such common carriers and employees during a period of not less than six
months nor more than nine months, in the discretion of the commission, and
within thirty days thereafter such commission shall report its findings to the
President and Congress; that each member of the commission created under the
provisions of this act shall receive such compensation as may be fixed by the
President. That the sum of $25,000, or so much thereof as may be necessary,
be, and hereby is, appropriated, out of any money in the United States Treasury
not otherwise appropriated, for the necessary and proper expenses incurred in
connection with the work of such commission, including salaries, per diem,
traveling expenses of members and employees, and rent, furniture, office fixtures
and supplies, books, salaries, and other necessary Expenses, the same to be ap
proved by the chairman of said commission and audited by the proper account
ing officers of the Treasury.
S ec . 3. That pending the report of the commission herein provided for and for
a period of thirty days thereafter the compensation of railway employees subject
to this act for a standard eight-hour workday shall not be reduced below the
present standard day’s wage, and for all necessary time in excess of eight hours
such employees shall be paid at a rate not less than the pro rata rate for such
standard eight-hour workday.
S ec . 4. That any person violating any provision of this act shall be guilty of
a misdemeanor and upon conviction shall be fined not less than $100 and not
more than $1,000, or imprisoned not to exceed one year, or both.
TRANSPORTATION ACT, 1920 (ESCH-CUMMINS LAW).
[U. S. Stat., 66th Cong., 2d sess., ch. 91, Title III.]

300. When used in this title—
(1) The term “ carrier” includes any express company, sleeping car com
pany, and any carrier by railroad, subject to the interstate commerce act,
except a street, interurban, or suburban electric railway not operating as a
part of a general steam railroad system of transportation;
(2) The term “ adjustment board” means any railroad board of labor
adjustment established under section 302;
(3) The term “ Labor B oard” means the Railroad Labor Board;
(4) The term “ commerce” means commerce among the several States or
between any State, Territory, or the District of Columbia and any foreign
nation, or between any Territory or the District of Columbia and any State,
or between any Territory and ' any other Territory, or between any Territory
and the District of Columbia, or within any Territory or the District of
Columbia, or between points in the same State but through any other State
or any Territory or the District of Columbia or any foreign nation; and
(5) The term “ subordinate official” includes officials of carriers of such
class or rank as the commission shall designate by regulation formulated and
issued after such notice and hearing as the commission may prescribe, to the
carriers, and employees and subordinate officials of carriers, and organizations
thereof, directly to be affected by such regulations.
Sec . 301. It shall be the duty of all carriers and their officers, employees,
and agents to exert every reasonable effort and adopt every available means
to avoid any interruption to the operation of any carrier growing out of any
dispute between the carrier and the employees or subordinate officials thereof.
All such disputes shall be considered and, if possible, decided in conference
between representatives designated and authorized so to confer by the carriers,
or the employees or subordinate officials thereof, directly interested in the
dispute. If any dispute is not decided in such conference, it shall be referred
by the parties thereto to the board which, under the provisions of this title, is
authorized to hear and decide such dispute.
70994°—22-----8
Section

114

USE OF FEDERAL POWER I1ST RAILWAY LABOR DISPUTES.

Sec . 302. Railroad boards of labor adjustment may be established by agree
ment between any carrier, group of carriers, or the carriers as a whole, and
any employees or subordinate official of carriers, or organization or group
of organizations thereof.
Sec. 303. Each such adjustment board shall, (1) upon the application of
the chief executive of any carrier or organization of employees or subordinate
officials whose members are directly interested in the dispute, (2) upon the
written petition signed by not less than 100 unorganized employees or subordi
nate officials directly interested in the dispute, (3) upon the adjustment
board’s own motion, or (4) upon the request of the Labor Board whenever
such board is of the opinion that the dispute is likely substantially to inter
rupt commerce, receive for hearing, and as soon as practicable and with due
diligence, decide any dispute involving only grievances, rules, or working con
ditions, not decided as provided in section 301, between the carrier and its
employees or subordinate officials, who are, or any organization thereof which
is, in accordance with the provisions of section 302, represented upon any such
adjustment board.
Sec . 304. There is hereby established a board to be known as the “ Railroad
Labor Board ” and to be composed of nine members, as follows:
(1) Three members constituting the labor group, representing the employees
and subordinate officials of the carriers, to be appointed by the President, by
and with the advice and consent of the Senate, from not less than six nominees
whose nominations shall be made and offered by such employees in such man
ner as the commission shall by regulation prescribe;
(2) Three members, constituting the management group, representing the
carriers, to be appointed by the President, by and with the advice and consent
of the Senate, from not less than six nominees whose nominations shall be made
and offered by the carriers in such manner as the commission shall by regula
tion prescribe; and
(3) Three members, constituting the public group, representing the public,
to be appointed directly by the President, by and with the advice and consent
of the Senate.
Any vacancy on the Labor Board shall be filled in the same manner as the
original appointment.
Sec . 305. If either the employees or the carriers fail to make nominations
and offer nominees in accordance with the regulations of the commission, as
provided in paragraphs (1) and (2) of section 304, within thirty days after
the passage of this act in case of any original appointment to the office of mem
ber of the Labor Board, or in case of a vacancy in any such office within fifteen
days after such vacancy occurs, the President shall thereupon directly make
the appointment, by and with the advice and consent of the Senate. In making
any such appointment the President shall, as far as he deems it practicable,
select an individual associated in interest with the carriers or employees there
of, whichever he is to represent.
S ec . 306. (a ) Any member of the Labor Board who during his term of office
is an active member or in the employ of or holds any office in any organization
of employees or subordinate officials, or any carrier, or owns any stock or bond
thereof, or is pecuniarily interested therein, shall at once become ineligible for
further membership upon the Labor Board; but no such member is required
to relinquish honorary membership in, or his rights in any insurance or pension
or other benefit fund maintained by any organization of employees or subor
dinate officials or by a carrier.
(b) Of the original members of the Labor Board, one from each group shall
be appointed for a term of three years, one for two years, and one for one year.
Their successors shall hold office for terms of five years, except that any mem
ber appointed to fill a vacancy shall be appointed only for the unexpired term
of the member whom he succeeds. Each member shall receive from the United
States an annual salary of $10,000. A member may be removed by the President
for neglect of duty or malfeasance in office, but for no other cause.
Sec. 307. (a) The Labor Board shall hear, and as soon as practicable and
with due diligence decide, any dispute involving grievances, rules, or working
conditions, in respect tp which any adjustment board certifies to the Labor
Board that in its opinion the adjustment board has failed or will fail to reach
a decision within a reasonable time, or in respect to which the Labor Board
determines that any adjustment board has so failed or is not using due dili
gence in its consideration thereof. In case the appropriate adjustment board
is not organized under the provisions of section 302, the Labor Board. (1) upon

115
the application of the chief executive of any carrier or organization of em
ployees or subordinate officials whose members are directly interested in the
dispute, (2) upon a written petition signed by not less than 100 unorganized
employees or subordinate officials directly interested in the dispute, or (B) upon
the Labor Board’s own motion if it is of the opinion that the dispute is likely
substantially to interrupt commerce, shall receive for hearing, and as soon
as practicable and with due diligence decide, any dispute involving grievances,
rules, or working conditions which is not decided as provided in section 301 and
which such adjustment board would be required to receive for hearing and
decision under the provisions of section 303.
(b) The Labor Board, (1) upon the application of the chief executive of any
carrier or organization of employees or subordinate officials whose members
are directly interested in the dispute, (2) upon a written petition signed by
not less than 100 unorganized employees or subordinate officials directly inter
ested in the dispute, or (3) upon the Labor Board’s own motion if it is of
the opinion that the dispute is likely substantially to interrupt commerce,
shall receive for hearing, and as soon as practicable and with due diligence
decide, all disputes with respect to the wages or salaries of employees or
subordinate officials of carriers, not decided as provided in section 301. The
Labor Board may upon its own motion within ten days after the decision,
in accordance with the provisions of section 301, of any dispute with respect
to wages or salaries of employees or subordinate officials of carriers, suspend
the operation of such decision if the Labor Board is of the opinion that the
decision involves such an increase in wages or salaries as will be likely to
necessitate a substantial readjustment of the rates of any carrier. The Labor
Board shall hear any decision so suspended and as soon as practicable and
with due diligence decide to affirm or modify such suspended decision.
(c) A decision by the Labor Board under the provisions of paragraphs (a)
or (b) of this section shall require the concurrence therein of at least 5 of
the 9 members of the Labor B oard: P r o v id e d , That in case of any decision
under paragraph (b), at least one of the representatives of the public shall
concur in such decision. All decisions of the Labor Board shall be entered
upon the records of the board and copies thereof, together with such statement
of facts bearing thereon as the board may deem proper, shall be immediately
communicated to the parties to the dispute, the President, each adjustment
board, and the commission, and shall be given further publicity in such manner
as the Labor Board may determine.
(d) All the decisions of the Labor Board in respect to w^ges or salaries
and of the Labor Board or an adjustment board in respect to working condi
tions of employees or subordinate officials of carriers shall establish rates of
wages and salaries and standards of working conditions which in the opinion
of the board are just and reasonable. In determining the justness and reason
ableness of such wages and salaries or working conditions the board shall, so
far as applicable, take into consideration among other relevant circumstances:
(1) The scales of wages paid for similar kinds of work in other industries;
(2) The relation between wages and the cost of living;
(8) The hazards of the employment;
(4) The training and skill required;
(5) The degree of responsibility;
(6) The character and regularity of the employment; and
(7) Inequalities of increases in wages or of treatment, the result of previous
wage orders or adjustments.
Sec. 308. The Labor Board—
(1) Shall elect a chairman by majority vote of its members;
(2) Shall maintain central offices in Chicago, Illinois, but the Labor Board
may, whenever it deems it necessary, meet at such other place as it may
determ ine;
«
(3) Shall investigate and study the relations between carriers and their
employees, particularly questions relating to wages, hours of labor, and other
conditions of employment and the respective privileges, rights, and duties of
carriers and employees, and shall gather, compile, classify, digest, and publish,
from time to time, data and information relating to such questions to the end
that the Labor Board may be properly equipped to perform its duties under
this title and that the members of the adjustment boards and the public may
be properly informed;
(4) May make regulations necessary for the efficient execution of the func
tions vested in it by this title ; and

APPENDIX B----TEXT OF ACTS.

116

TJSE OF FEDERAL POWER IN RAILWAY LABOR DISPUTES.

(5) Shall at least annually collect and publish the decisions and regulations
of the Labor Board and the adjustment boards and all court and administrative
decisions and regulations of the commission in respect to this title, together
with a cumulative index-digest thereof.
S ec . 309. Any party to any dispute to be considered by an adjustment board
or by the Labor Board shall be entitled to a hearing either in person or by
counsel.
S ec . 310. (a) For the efficient administration of the functions vested in the
Labor Board by this title, any member thereof may require, by subpoena issued
and signed by himself, the attendance of any witness and the production of
any book, paper, document, or other evidence from any place in the United States
at any designated place of hearing, and the taking of a deposition before any
designated person having power to administer oaths. In the case of a deposi
tion the testimony shall be reduced to writing by the person taking the deposi
tion or under his direction, and shall then be subscribed to by the deponent.
Any member of the Labor Board may administer oaths and examine any witness.
Any witness summoned before the board and any witness whose deposition is
taken shall be paid the same fees and mileage as are paid witnesses in the
courts of the United States.
(b) In case of failure to comply with any subpoena or in case of the con
tumacy of any witness appearing before the Labor Board, the board may invoke
the aid of any United States district court. Such court may thereupon order
the witness to comply with the requirements of such subpoena, or to give
evidence touching the matter in question, as the case may be. Any failure to
obey such order may be punished by such court as a contempt thereof.
(c) No person shall be excused from so attending and testifying or deposing,
nor from so producing any book, paper, document; or other evidence on the
ground that the testimony or evidence, documentary or otherwise, required of
him may tend to incriminate him or subject him to a penalty or forfeiture;
but no natural person shall be prosecuted or subjected to any penalty or for
feiture for or on account of any transaction, matter, or thing, as to which in
obedience to a subpoena and under oath, he may so testify or produce evidence,
documentary or otherwise. But no person shall be exempt from prosecution
and punishment for perjury committed in so testifying.
S ec . 311. (a) When necessary to the efficient administration of the func
tions vested in the Labor Board by this title, any member, officer, em
ployee, or agent thereof, duly authorized in writing by the board, shall at
all reasonable times for the purpose of examination have access to and the
right to copy any book, account, record, paper, or correspondence relating
to any m atter which the board is authorized to consider or investigate. Any
person who upon demand refuses any duly authorized member, officer, employee,
or agent of the Labor Board such right of access or copying, or hinders,
obstructs, or resists him in the exercise of such right, shall upon conviction
thereof be liable to a penalty of $500 for each such offense. Each day during
any part of which such offense continues shall constitute a separate offense.
Such penalty shall be recoverable in a civil suit brought in the name of the
United States, and shall be covered into the Treasury of the United States
as miscellaneous receipts.
(b) Every officer or employee of the United States, whenever requested by
any member of the Labor Board or an adjustment board duly authorized
by the board for the purpose, shall supply to such board any data or in
formation pertaining to the administration of the functions vested in it by
this title, which may be contained in the records of his office.
(c) The President is authorized to transfer to the Labor Board any books,
papers, or documents pertaining to the administration of the functions vested
in the board by this title, which are in the possession of any agency, or
railway board of adjustment in connection therewith, established for ex
ecuting the powers granted the President under the Federal control act and
which are no longer necessary to the administration of the affairs of such
agency.
Sec . 312. Prior to September 1, 1920, each carrier shall pay to each em
ployee or subordinate official thereof wages or salary at a rate not less than
that fixed by the decision of any agency, or railway board of adjustment
in connection therewith, established for executing the powers granted the
President under the Federal control act, in effect in respect to such employee
or subordinate official immediately preceding 12.01 a. m. March 1, 1920. Any

APPENDIX B----TEXT OF ACTS.

117
-carrier acting in violation of any provision of this section shall upon con
viction thereof be liable to a penalty of $100 for each such offense. Each
such action with respect to any such employee or subordinate official and
each day or portion thereof during which the offense continues shall con
stitute a separate offense. Such penalty shall be recoverable in a civil suit
brought in the name of the United States, and shall be covered into the
'Treasury of the United States as miscellaneous receipts.
S ec . 313. The Labor Board, in case it has reason to, believe that any de
cision of the Labor Board or of an adjustment board is violated by any
carrier, or employee or subordinate official, or organization thereof, may upon
its own motion after due notice and hearing to all persons directly interested
in such violation, determine whether in its opinion such violation has occurred
and make public its decision in such manner as it may determine.
S ec . 314. The Labor Board may (1) appoint a secretary, who shall receive
from the United States an annual salary of $5,000; and (2) subject to the
provisions of the civil-service laws, appoint and remove such officers, em
ployees, and agents; and make such expenditures for rent, printing, tele
grams, telephone, law books, books of reference, periodicals, furniture, sta
tionery, office equipment, and other supplies and expenses, including salaries,
traveling expenses of its members, secretary, officers, employees, and agents,
-and witness fees, as are necessary for the efficient execution of the functions
vested in the board by this title and as may be provided for by Congress from
time to time. All of the expenditures of the Labor Board shall be allowed
and paid upon the presentation of itemized vouchers therefor approved by
the chairman of the Labor Board.
S ec . 315. There is hereby appropriated for the fiscal year ending June 30,
1920, out of any money in the Treasury not otherwise appropriated, the sum
of $50,000, or so much thereof as may be necessary, to be expended by the
Labor Board, for defraying the expenses of the maintenance and establishment
of the board, including the payment of salaries as provided in this title.
S ec . 316. The powers and duties of the Board of Mediation and Conciliation
created by the act approved July 15, 1913, shall not extend to any dispute
which may be received for hearing and decision by any adjustment board or
the Labor Board.

BIBLIOGRAPHY.
CASES CITED.

Adair v . U. S., 208 U. S. 161 (1908).
Coppage v . Kansas, 236 U. S. 1 (1915).
Employers Liability Cases, 207 U. S. 463 (1908).
Gibbons v . Ogden, 9 Wheat. 1 (1824).
Gilman v . Philadelphia, 3 Wall. 724.
In re Debs, 158 U. S. 564 (1895).
McCulloch v . Maryland, 4 Wheat, 316 (1819).
Munn v . Illinois, 94 U. S. 113 (1876).
Order of Railroad Telegraphers v . Louisville & Nashville Railroad Co., 148
Fed. 437 (1906).
Second Employers’ Liability Cases, 223 U. S. 1 (1912).
United States v . Adair, 152 Fed. 737 (1907).
United States v . Scott, 148 Fed. 431 (1906).
Wilson v . New, 243 U. S. 332 (1917).
COMMITTEE HEARINGS QUOTED.

United States Congress. House of Representatives. Subcommittee of the Com
mittee on Labor. Hearings. National arbitration bill. 58th Cong. 1904.
-------------Committee on Interstate and Foreign Commerce. Hearings on H. R.
10840. 1907.
--------------------Hearings on H. R. 22012, to amend the Erdman act. 1912.
*-------------------- Hearings on H. R. 19730. 64th Cong., 2d sess. 1917.
-------------------- Return of railroads to private ownership. Hearings on H. *R.
4378. 66th Cong., 1st sess. 1919.
— — Senate Committee on Interstate Commerce. Mediation, conciliation, and
arbitration between railway employers and their employees: Report on S.
2517, with hearings. 1913.
--------------------- Threatened strike of railway employees. Hearings on bills..
Senate Doc. 549. 64th Cong., 1st sess.
--------------------- Government investigation of railway disputes. Hearings on
tentative bills to amend. 64th Cong., 2d sess. 1917.
---------- ;-------— Prevention of strikes. Hearing on S. 2906. 66th Cong., 1st
sess. 1919.
---------------------Railroad revenues and expenses. Hearing on Senate Resolu
tion 23 (committee print, unrevised). 67th Cong., 1st sess. 1921.
GENERAL PUBLICATIONS QUOTED.

American Federation of Labor. Report of proceedings of the fourteenth an
nual convention, held at Denver, Colo., 1894.
------Report of proceedings of the twenty-sixth annual convention, held at Min
neapolis, 1906.
American Yearbook, The. 1913 to date. New York.
118

119
A w ard: Arbitration between the western railroads and the Brotherhood of
Locomotive Engineers and Brotherhood of Locomotive Firemen and Enginemen, 1914. Chicago, 1915.
Barnett and McCabe. Mediation, investigation, and arbitration in industrial
disputes. New York, 1916.
Brotherhood of Locomotive Firemen and Enginemen. Constitution revised and
amended at the twenty-seventh convention held in Denver, Colo., 1916.
Brotherhood of Railroad Trainmen. Constitution and general rules, Cleveland,
1916.
Chamber of Commerce of the United States. Special bulletin, June 16, 1916.
Washington, D. C.
------ Special bulletin, Feb. 12, 1917. Washington, D. C.
National Civic Federation, National Conference on Industrial Conciliation,
December, 1901. (Containing papers read at the Chicago Conference,
December, 1900.) New York, 1902.
National Democratic Campaign Book, presidential election, 1900. Washington,
1900.
Order of Railway Conductors of America. Constitution, statutes, rules of the
order and laws governing the mutual benefit department. Revised and
adopted by the thirty-fifth grand division, St. Louis, Mo. 1916.
Pennsylvania Railroad. Proceedings before the United States Railroad Labor
Board, July 8 and 9, 1921, pp. 64-5.
Proceedings: Arbitration between the eastern railroads and the Brotherhood
of Locomotive Firemen and Enginemen, 1913. New York, 1913.
Report of the Board of Arbitration in the matter of controversy between the
eastern railroads and the Brotherhood of Locomotive Engineers. Wash
ington, 1912.
Ttepublican Campaign Textbook, 1908. Philadelphia.
BIBLIOGRAPHY.

GOVERNMENT PUBLICATIONS (OTHER THAN HEARINGS) QUOTED.

Attorney General of the United States. Appendix to annual report for the
year 1896, containing the official correspondence relating to the action of
the Government with reference to the Interruption by force of interstate
commerce. 54th Cong. 2d sess. House Doc. No. 9, pt. 2.
Congressional Record, 1873 to date.
Director General of Railroads. Message from the President of the United
States, transmitting the report of the Director General of Railroads for
seven months, ended July 31, 1918. 65th Cong., 2d sess. Senate Doc.
No. 275. 1918.
------ Annual Report of W. G McAdoo, Director General of Railroads, 1918.
Labor. 1919.
------ Annual Report of Walker D. Hines, Director General of Railroads, 1919.
Division of Labor, W. S. Carter, Director. 1920.
------ Report to the President by Walker D. Hines, Director General of Rail
roads, for fourteen months, ended March 1, 1920. Revised. 1920.
National Association of Railway Commissioners. Proceedings of the twentieth
annual convention, held at Washington, D. C., October 6-8, 1908. 1909.
United States Anthracite Strike Commission. Report to the President on the
anthracite coal strike of 1902. 58th Cong., special sess. Senate Doc. •
No. 6. 1903.
------- Board of Mediation and Conciliation. Report on the effects of arbitra
tion proceedings upon the rates of pay and working conditions of railroad
employees: 64th Cong., 1st sess. Senate Doc. No. 493.
------ Report, 1913-1917. 1918.

120

BIBLIOGRAPHY.

United States Anthracite Strike Commission—Continued.
------Report on operations, 1913-1919. 1920.
------ Bureau of Labor. Bulletin No. 98, Mediation and arbitration of railway
labor disputes, by Charles P. Neill. 1912.
------ Commissioner of Labor. First annual report, March, 1886.
------ Commissioner of Mediation and Conciliation. Annual report, December
21, 1914. 63d Cong., 3d sess. House Doc. No. 1423.
------ Congress. House of Representatives. Amendment to the Erdman Act..
63d Cong., 1st sess. Report No. 30. 1913.
------------------- Boards of arbitration. 57th Cong., 1st sess. House Report No.
2722. 1902.
------------------- Carriers engaged in interstate commerce. 54th Cong., 1st
sess. House Report No. 1058. 1896.
------------------- Carriers engaged in interstate commerce and their employees.
55th Cong., 2d sess. House Report No. 454. 1898.
------------------- Extending period of control of railroads, printed for the use
of the Committee on Interstate and Foreign Commerce * * * on H. R.
13707. 65th Cong., 3d sess. 1919.
------------------- Federal control of Railroads. 66tli Cong., 2d sess. House
Report No. 650. 1920.
------------------- Investigation of controversies affecting interstate commerce.
59th Cong., 2d sess. House Report No. 8077. 1907.
------------------- Investigation of controversies affecting interstate commerce.
60th Cong., 1st sess. House Report No. 621. 1908.
------------------- Investigation of labor troubles in Missouri, Arkansas, Kansas*
Texas, and Illinois. 49th Cong., 2d sess. House Report No. 4174. 1887.
------------------- Mediation, conciliation, and arbitration. 62d Cong., 2d sess.
House Report No. 853. 1912.
------------------- National board of arbitration between employers' and employees.
53d Cong., 2d sess. House Report No. 1343. 1894.
------------------- Return of railroads to private ownership. 66th Cong., 1st sess.'
House Report No. 456. 1919.
------------ Senate. Carriers engaged in interstate commerce and their em
ployees. 55th Cong., 2d sess. Senate Report No. 591. 1898.
--------------------Government control of railroads. 66th Cong., 1st sess. Senate
Report No. 3034. 1919.
------------------- Mediation, conciliation, and arbitration in controversies be
tween railway employers and their employees. 63d Cong., 1st sess. Senate
Report No. 72. Report on S. 2517.
----- Eight-Hour Commission. Report on the standard workday of railroad
employees. 65th Cong., 2d sess. H. Doc. No. 690. 1918.
------ Industrial Commission. Report.
Yol. 4, Transportation, 1900.
Yol. 19, Final report, 1902.
------ Railroad Administration. Director General of Railroads. Bulletin No. 4
(revised). Public acts, proclamations, * * * to December 31, 1918. 1919.
------------------- Bulletin No. 4 (revised). Supplement. From January 1, 1919*
to February 29, 1920. 1920.
------------------- Bulletin No. 10. Decisions of Railway Adjustment Boards Nos.
1, 2, and 3 to December 31, 1918. 1919.
----------- ------- B ulletinN o.il. Circulars and bulletins issued, * * * from
January 1 to December 31, 1918. 1919.
------------------- General Order No. 27, with supplements, addenda, amend
ments to June 30, 1919, 1919,

BIBLIOGRAPHY.

121

United States. Railroad Administration, etc.—Continued.
------------------- Report of the Railroad Wage Commission to the Director Gen
eral of Railroads, April 30, 1918. 1918.
----- Railroad Labor Board. Announcement, May 19, 1920.
------------ Decisions, 1920-21.
------------ Wage Series, Report No. 1. Average daily and monthly wage rates
of railroad employees, class 1 carriers. Chicago, 1920.
------ Strike. Commission. Report of the Chicago strike of June-July, 1894.
53d Cong., 3d sess. Senate Ex. Doc. No. 7. 1895.
PERIODICALS AND OTHER PUBLICATIONS QUOTED.

American Academy of Political and Social Science, Annals. Philadelphia.
1917.
American Federationist, The. New York, 1894-1895; Indianapolis, 1895-1897;
Washington, 1897 to date.
Brotherhood of Locomotive Engineers’ Journal, Cleveland, 1873 to date.
Brotherhood of Locomotive Firemen and Enginemen’s Magazine. Terre Haute,
1886- 1894; Peoria, 111., 1895-1901; Indianapolis, 1902 to date.
Locomotive Firemen’s Magazine, 1886-1900.
Brotherhood of Locomotive Firemen’s Magazine, 1901-1906.
Brotherhood of Locomotive Firemen and Enginemen’s Magazine, 1907
to date.
Independent, The. New York.
Labor. Washington, D. C.
McClure’s Magazine. New York.
Nation, The. New York.
Outlook, The. New York.
Pennsylvania Railroad. Argument submitted by Judge Seneff to the United
States Railroad Labor Board, on July 8, 1921, in re jurisdiction of Labor
Board over national agreements. 1921.
Quarterly Journal of Economics, The. Cambridge, Mass.
Railroad Telegrapher, The. Peoria, 111., 1898-1906; St. Louis, Mo., 1907 to date.
Railroad Trainmen, The. Peoria 111. 1897-1899; Cleveland O., 1900 to date.
(called) The Railroad Trainmen’s Journal, 1897-1899.
Railway Age. New York, 1871 to date.
Railroad Gazette: a Journal of Transportation, Engineering and Rail
road News, 1870-1908.
Railroad Age Gazette, 1908-1909.
Railway Age Gazette, 1910-1917.
Railway Age, 1918 to date.
Review of Reviews, The. New York.
Washington Post, The. Washington, July 13, 1921.
UNITED STATES STATUTES CITED.

Adamson Act. 39 U. S. Statutes at Large, 64th Cong., 1915-1917, Part I, ch. 436.
Act to create a board of arbitration. 25 U. S. Statutes at Large, 50th Cong.,
1887- 1889, ch. 1063.
Erdman Act. 30 U. S. Statutes at Large, 55th Cong., 1897-1898, ch. 370.
----- , change in. 36 U. S. Statutes at Large, p. 1397, 61st Cong., ch. 285.
Extract from Public Law No. 242, 64th Cong.
Newlands law. 38 U. S. Statutes at Large, 63d Cong., 1913-1915, ch. 6.
Transportation act of 1920. 41 U. S. Statutes at Large, 66th Cong., 2d sess.,
ch. 91.
79994 °—22----- -9

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