Pictures and Illustrations.
Protection of Non-Combatants; or Arbitration of Strikes.
(Published in the Chicago "Evening Mail.")
Can the State enforce arbitration in a strike?
This question at once resolves itself into two:
First: Has the State the right or the constitutional power to compel arbitration independent of the will of the contending parties?
Secondly: If it has the right, is it feasible to exercise it, and in what manner and how far can it enforce its award?
It is assumed by many in this country that in a strike the State is powerless as a mediator; that its sole function in such a time is to keep the public peace, and that so long as the latter is not disturbed the State must remain an idle spectator; that every person has the right to do as he likes with his property or with his labor; that the employer has the right in all cases to employ and to discharge whom he thinks proper, and when he thinks proper, and to pay what wages he pleases; and that the laborer has the right in all cases to work when and for whom he thinks best; and that neither employer nor employe stands in such a relation to society at large as to give the State, as the conservator of all classes and interests, any right in case of a strike to interfere without the express consent of the parties to the dispute. As strikes are often of such magnitude as to affect the entire country, if long continued, this doctrine in effect affirms the following propositions:
1. That the rights which a man has in a state of nature are not greatly modified or limited by his becoming a member of our complex society; that although all of the members of the latter are interdependent, each being affected by the conduct of the others, yet that a limited number of these members have the constitutional right to pursue a course which is not only injurious to the whole, but which, if persisted in sufficiently long, must result in a dissolution of society; that the remainder, although they may constitute ninety per cent. of the whole, have no constitutional right to protect themselves from the consequences of such conduct. In short, that the State, as the embodiment of society, has no power to prevent or to remove those conditions which, if left alone, would lead to its own overthrow.
2. That although great changes in the method of production and of transportation in this country have altered the natural order of things as it existed one hundred years ago; have already destroyed and tend more and more to destroy independent occupations; and although great corporations have grown up with thousands of men in their employ, who are almost at their mercy; and although business is tending more and more to be centralized and controlled by a few; and although it is vital to the very existence of society, as now constituted, that business in its various forms should go on regularly and without great interruption; and that these corporations, particularly public carriers, should be not only required, but also enabled, to do their work without delay, for every interruption of their operations subjects the public to serious loss and inconvenience; yet, as the relation between employer and employe is one of contract, the State can in no case interfere to protect the interests of the public at large, notwithstanding the
109act that the highest courts of the land have, in other cases of contract, held that the State can interfere for the protection of the public. For example, in those cases relating to the rate of interest which may be charged, the amount of toll which may be charged, the rate of fare which may be charged, and the rate which may be charged for storing grain.
3. That although this is an age of great division of labor, by reason of which thousands of men in one line of industry are dependent for work, and consequently for the means of subsistence, on the industry of others, yet, if in consequence of a dispute between employer and employe in any one line all other industries should become paralyzed (for example, during the recent strike of the coke-makers in Pennsylvania, many large iron mills had to shut down for want of coke, thus throwing the iron workers out of employment, while through these in turn other industries were affected),
4. That while the State must bear the burden of suppressing crime and of supporting paupers, yet it derives from this duty no corresponding right or power to arrest or to remove those conditions which are certain to breed both criminals and paupers.
5. That an individual or corporation may interfere with the natural distribution of population, and cause several thousand laborers with their families to settle in a location where they would otherwise not have settled, and where there are no opportunities of earning a living except what are furnished by such individual or corporation as employer, and that the State has no right to see that these people shall not become a burden to the State by thus being made either paupers or criminals, but that when they are, as it were, in the hands of the employer, and have it not in their power to go and make a living elsewhere, the employer may, in case of a disagreement, lock them all out, and may bring on several thousand more (who otherwise would not have come there), and put these in place of the former, and in case of
110a second disagreement may bring on a third lot, and so on, each time leaving his former workmen and their families without the means of subsistence, and in a condition in which they are certain to become a burden on the State, part as criminals, and part as paupers. And yet the State has no right or power to interfere, notwithstanding the fact that but for the action of such employer these people would not have settled in that locality, but would have distributed themselves over the country more nearly in proportion to the natural means of subsistence offered, and would not have become a burden on the State.
6. Or that several hundred employes may impose terms upon an employer with which he cannot comply without actual loss; and if he declines to accede they can prevent him from employing other men, and thus force him to shut down, although by so doing a whole series of other manufacturing establishments are obliged to stop work and their men to be idle because they need the goods made by the first; so that in the end all industries will become paralyzed, the public generally put to great inconvenience, thousands of men everywhere who have no trouble with their employers will be thrown out of work, and those conditions which breed crime and pauperism are created in a most aggravated form. Yet the State must stand idly by simply because the parties that originated the quarrel are too stubborn to compromise or to agree to arbitrate.
The bare statement of these propositions is all the refutation they need. Every duty imposed upon the State implies a corresponding right. The duty of the State is not simply to protect life and property, but also to enable all those agencies that are necessary to the existence of modern society to perform their functions properly. Besides, every government possesses the inherent right of self-preservation, at least so far as that it may, by all means within its power, resist those antagonistic or disintegrating forces which tend to its destruction. It can resist foreign invasion, can suppress internal rebellion, and can suppress and punish crime. It can do things without number which are designed for the benefit of the entire public, although in doing them it may in a measure modify or curtail what have been supposed to be the natural rights of man. To hold, therefore, that it cannot inquire into or remove those conditions which not only breed crime and pauperism, but which, if left alone, must in time bring about the ruin of society and the overthrow of the government, would be an absurdity. It is the duty of the government to conserve and protect all interests, and, being its duty, there can be no question about its power.
The objections so commonly urged against paternal government
111have here no application. For in all cases where it is found to exist, as in the countries of the Old World, or in the imposition of protective duties in this country, the State steps in at the beginning and regulates affairs without first giving individuals an opportunity to get along without State interference, while here the State allows employer and employe to manage their own affairs, and claims the right to interpose only after they have failed; and then only in cases where the interests of the public are being injuriously affected in consequence of such failure.
The question is, Can there lawfully be any government or public agency to regulate or control this condition of affairs? As to nearly all other conditions or disturbances which injuriously affect society, no one questions the right of the State to interfere. Now, why should it not interfere in this instance?
That the machinery or form of government adopted to meet troubles of this character must be "of the people, for the people, and by the people," in order to be successful, is unquestionably true. But that it is as much the duty of the State to prevent injuries to the public at large from strikes as it is its duty to prevent injuries from any other cause is equally true.
This is a serious question. The first inquiry one hears is: "Well, what can," or "what shall the State do?" And the answer frequently heard is: "Create boards of arbitration to settle all these disputes between employer and employe." Yes, that is all right, so far, but, having got the board created, let us see what, from the nature of things, it can and cannot do.
At the threshold it meets some natural limitations which no legislation can overcome.
1. The board cannot compel the employer to run his mill, for he may not be able to do it, or may think that it cannot be run without loss, or for a number of reasons he may not desire to run it. And, I repeat, the board cannot run it for him.
2. The board cannot impose terms which would make it impossible for the employer to continue his business without actual loss, for to do this would be to render his property employed in his business worthless; would practically destroy it without making compensation for it, which, according to the settled principles of American jurisprudence, cannot be done.
3. The board cannot force a man or a large number of men to
112enter a factory and go to work and to continue to work against their will.
With these limitations in view, let us set the board in motion. A strike, with its usual accompaniments, exists in the neighborhood. The board takes cognizance of it, inquires into the trouble according to rules of procedure which it has established, and it finds that the employer is in the wrong, and it so decides. It fixes a price which he shall pay or determines in other respects what he shall do. Now, if he elects not to run his mill, that is the end of the matter. But if he desires, either then or in the future, to go on, then the board can require him to do so on the terms it laid down, and can further provide that he shall not employ any new men until he has given his old employes an opportunity to go to work on the terms fixed by the board. If he objects that he should not be interfered with in his business, it may be replied that there was no interference until there was such a condition of affairs about his premises as was injuriously affecting the good order or well-being of society. And if he objects that he should be permitted to employ whom he pleases, it may be answered that he had interfered with the natural distribution of population, and had led a large number of people, i. e., his former employes, to settle around him, who otherwise might not have settled there, and that it would be against the well-being of society that these should all at once be thrown out of employment and their places filled with others, as they would thus be in danger of becoming a burden on the public; that if he desires to make a change it must be done gradually, so that there will be no danger of the public peace being disturbed or of the public burdens being increased. It is clear that in this case it is feasible to carry out the decree or the award of the board.
But we now accompany the board to another strike. Here, after careful inquiry, the board decides that the employes are in the wrong, and it fixes the terms upon which they shall return to work. Now, if they all decline to go, then, as already stated, the board cannot compel them.
But it is scarcely necessary to consider such a contingency, for it is not likely to happen. All experience points the other way. As a rule the employes have no alternative — they have no other means of getting bread for themselves or their children. It is true that at present they sometimes hold out to the point of starvation, but this is because they have got themselves into a situation where they cannot gracefully or with self-respect back down, whereas a decision of a properly constituted tribunal would help them out of this dilemma.
It must also be borne in mind that, at present, public sentiment
113is frequently with the strikers, and it is the force of this in many cases which prevents them from going to work; whereas, in a case where they refused to abide by the decision of a properly constituted tribunal, public sentiment would be against the strikers, and this alone would operate powerfully to dissolve the strike.
Again, in nearly all cases, many of the men who first stop work are opposed to a strike, and are only deterred from resuming by the fear of being expelled from their union, in which they are interested in insurance funds, benevolent funds, etc.; and if the law were to protect them against expulsion, where no other ground existed than their compliance with the award of the board, they would go to work at once.
Further, it is worthy of note that in nearly all labor troubles in the past it was the laboring men who were the most willing to submit to arbitration, and I believe there is not a case of this kind on record in which an arbitration was fairly entered into that the award was not promptly accepted by the men. It may therefore be safely assumed that if this board were so constituted as to command the confidence of employes in regard to its integrity and fairness, there would never be any trouble about enforcing its awards against them. Should experience, however, demonstrate that something more was necessary to insure compliance with the award of the board, by either employer or employes, it might be provided that if an employer refused to carry out the award, he should forfeit say six days' wages to each of his employes; or if the employes refused to abide by an award, they shall forfeit say six days' wages to the employer. Of course, to make this provision enforcible against the men, it would be necessary for the employer always to be six days in arrears in paying them. But this is the case now with most large employers, especially railroad corporations, and in the case supposed it would further have to be provided that during a strike no judgment should be rendered in favor of an employe for such specified arrearage.
The board should further have power to inquire into a case where the employer has discharged all the striking employes and is filling their places with others; for it is the bringing on of others, and thus increasing the population of that locality beyond the means there provided for earning a living, that vitally interests the public. It is at present a matter of common occurrence that men are hired and taken from one end of the country to another, to fill the places of striking employes, when, but for such beginning, they would never have thought of going to the points where they thus swell the population.
But it is safe to say that if a law for compulsory arbitration were
114passed there would not only be very few arbitrations under it, but there would be very few strikes. For the consciousness that arbitration can be forced upon them would induce both employer and employe to get together and to try to adjust their own differences, and this nearly always results in a settlement, the difficulty at present being that many employers will not talk with or meet their men.
Consequently, the employer does not understand the men nor the men the employer, and thus trifles frequently lead to trouble, when, with a better understanding, they would be unnoticed; so that any measure which will make the relations between employer and employe; more familiar will be productive of much good.
Even a board which had full power to make a thorough investigation without the consent of the parties, but had no power at all to enforce its award, would prevent a great deal of trouble; for the consciousness that a full investigation can be made and the result published to the world, showing who is in the wrong, will alone lead to an effort at adjustment.
It is apparent that the method of creating this board is of the greatest importance, and that both employers and employes must be given a voice, if they desire, in selecting the board in each case. For, if the board were to be constituted by the usual political agencies, or if there were to be one permanent board it would not command the absolute confidence of the parties, and would soon be regarded as many of our courts, whether rightfully or wrongfully, are now regarded, i. e., with more or less distrust. Therefore, in each case where there is dissatisfaction, or a dispute liable to result in a strike, a separate board should be created by the employes selecting one member, the employer one member, and the two thus selected agreeing upon the third. This is the practice now in vogue in nearly all cases of this character wherein arbitration is now resorted to.
There should be a provision authorizing some court, on application of either employer or a fixed proportion of the whole number of employes, or in case of an actual strike, where neither employer nor employes apply, on application of a specified number of citizens, to select such member of the board for any party to the dispute that declines to select his own. But this should not be done until after notice is given to either the employer or a named proportion of the employes, as the case may be. This would place it within the power of either party, as well as the public, to secure a prompt settlement of all disputes in reference to the rate of wages, etc. As the authority
115of the State to interfere is based chiefly on its duty to prevent public inconvenience and social disturbances, as well as to prevent increase of public burdens, this board could not take cognizance of cases where there are but few employes. The line having to be drawn somewhere, the minimum might be fixed at say ten. The rules of procedure by the board are matters of detail which present no insurmountable difficulties.
As a board of appeals would necessarily be distant from the scene of the trouble in most cases, and a hearing before it accompanied with much expense and cause much delay, which delay alone would tend to destroy all the benefits to be derived from arbitration, and perhaps bring the whole system into disrepute, I believe it would be a mistake to create such a board; for one of the strongest arguments in favor of arbitration is, that there can be a speedy adjustment of difficulties. Besides, only the strong could avail themselves of the services of a board of appeals. Should such a board, however, be created, then there should be a provision requiring the decision of the local board to be accepted and carried out, until it is reversed or modified by the board of appeals; otherwise, every party dissatisfied with the finding of the local board would appeal merely to get delay, and it would not be long until the whole system would not only be rendered abortive, but be brought into disrepute.
The costs of an arbitration should be taxed very much as they are now in lawsuits. At present the public pays the judge, the jurors, and furnishes a court-house, and requires the parties to pay the witnesses, the sheriff and the clerk. As the public is just as much interested in the settlements of disputes between employer and employed as it is in the average lawsuit, it should bear at least the same proportion of costs. The arbitrators, in particular, should be paid by the public, so that they may never be suspected of considering the certainty of getting their fees in rendering a decision. Provision might be made requiring a bond for costs to be given by the party applying for an arbitration, and the board should have power to apportion costs in proper cases.
Upon the question of arbitration there has until recently been a wide divergence of opinion between employer and employes. The public, it may be noted, nearly always favors arbitration without stopping to inquire carefully into the matter. As a rule, employes favor arbitration, but until recently employers have generally been opposed
116to any outside interference. But a great change has already taken place in this regard in the minds of employers, and many of them are now advocating compulsory arbitration. Not that they like to have the State step in between them and their men, but because this is the only way in which they can be protected from the consequences of strikes on the part of their neighbor's employes. At present, many strikes force the shutting down on the part of employers who have no trouble with their men, and cause thousands of men to quit work who have no complaint against their employers; the only way in which these troubles can be limited to the original parties to the quarrel is to provide for creating in each case a board of arbitration, with full power to inquire into the trouble, whether the parties consent or not.
As already stated, the public, which is always interested, and frequently a direct sufferer, favors arbitration. As a rule employes favor it, and employers are beginning to see that it is to the interest of every employer who has no trouble with his men to have such a board, for he can then seldom be made to suffer because of the wrong-doing of some other employers, or of the folly of other employes. We may therefore reasonably expect soon to see laws enacted creating boards of arbitration similar in character to those that we have been considering.
Chicago, April 26, 1886.