This doctrine has been upheld by the courts of Missouri and California and at one time in New York. With these exceptions the boycott is declared a conspiracy in other states. While the courts distinguish between primary and unions recognize no difference between concerted voluntary acts of men within one group and the concerted acts of men of several groups.

secondary boycotts the

NOTE. (See p. 144.) The section of the federal statute exempting unions is as follows:

"The labor of a human being is not a commodity or article of commerce, and nothing contained in the anti-trust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organization from lawfully carrying out the legitimate objects thereof; nor shall such organization, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the anti-trust laws."

CHAPTER XI

ARBITRATION

Voluntary and compulsory-Opposing position of labor and capital-Erdman Act-Engineers' arbitration board, its recommendation of wage board, minority opinion-Amendment of Erdman Act-Canadian Disputes Act-Compulsory arbitratration in Australia and New Zealand-Right to strike.

THE Opposing positions of labor and capital on the question of arbitration is but another illustration of differences in objective points.

The trade unions have universally welcomed propositions for voluntary arbitration when a strike is on or declared, and capital has opposed it with an answer, which became classic some time back, "There is nothing to arbitrate."

Capital has welcomed compulsory arbitration under certain conditions, which labor in the United States has universally opposed.

The employer who declares there is nothing to arbitrate is the same employer who dismisses also the claim of organized labor to a voice in fixing conditions of work with the curt reply, "I can run my business to suit myself."

The trade unions welcome voluntary arbitration because, first, it secures a hearing for demands;

second, it forces the employer, in the presence of a third party, to assume a more judicial attitude; it forces him to explain his position, to discuss terms of employment, and his right to sole management of his business is opened to question.

Voluntary arbitration may or may not carry with it compulsion to abide by an award. It may be that workers or employers agree to submit a question to arbitration, and to refer the award back to the workers for acceptance or rejection. This is the usual form of arbitration approved by the unions of the American Federation. Or voluntary arbitration may mean that workers and employers voluntarily submit questions in dispute to arbitration, and agree, in advance, to be bound by the decision of the arbitrators. The four railroad brotherhoods advocate the latter method, and have adopted it as their exclusive method of adjusting wage scales and working conditions.

The Erdman Act, which reflected the attitude of the railroad brotherhoods on the question of arbitration, provided that either the railroad managers or the unions of the employees may invoke an arbitration proceeding. But recourse to the act was optional; that is, managers were free to lock out the workers, or the workers were free to strike without resorting to arbitration. If the parties in a controversy requested arbitration under the Act, they are legally bound to abide by the decisions of the arbitration. board.

From 1907 to 1912, sixty cases of wage controversies between railroad managers and railroad employees were settled under the terms of the Act. But when the Brotherhood of Locomotive Engineers in 1912 made an appeal to the Boards of Directors of fifty-two Eastern railroads for increase and standardization of wage rates over all the roads, the managers representing the different boards separately refused the demands, and refused, also, to submit to arbitration under the federal law. They claimed that the three arbitrators, provided by the Erdman Act, were not sufficient to settle so important a question. They proposed as an alternative an arbitration board made up of one representative to each of the parties of the controversy, and five others to be appointed by the Chief Justice of the United States Supreme Court, who would represent public interest. The Engineers resisted the proposition for a time in the fear that the majority on a Board so appointed would fail inevitably to appreciate the position of the workers. Their fears were fully justified. The Engineers were not granted the standardization or any increase in wages. Instead, they were granted a minimum rate.

The important outcome of the arbitration was the nature of the majority recommendation made by the managers' representative and the five men who represented the public. It supplemented the beggarly award with the recommendation in the interest of the public that the majority were appointed to represent.

It discarded the idea that engineers were free men, and proposed that they should in the future be treated as servants of the public, surrendering personal desires and points of view regarding their own conditions of work to the desires and interests of the public. The Board recommended a compulsory settlement of wages by wage boards, and, with the creation of such boards, that the men engaged in railroad service be denied the right to strike.

It was not surprising that the five men who controlled the Board, together with the managers of the railroads, would regard the possibility of a railroad strike as an incomparable calamity, and would fail to realize that the compulsory terms of service they proposed would not be endured by men enjoying even a pretense of freedom.

In connection with its recommendations for the establishment of wage boards in place of free and collective bargaining, the Board observed:

If, notwithstanding the existence of a wage commission, the men engaged in train service struck, the question would arise regarding the legal authority of the government to compel employees to remain at work. Is it unreasonable to ask that men in the service of public utilities shall partially surrender their liberty in the matter of quitting employment so that the nation as a whole may not suffer disproportionately? . . . It is the belief of the Board that, in the last analysis, the only solution, unless we are to rely solely upon the restraining power of public opinion, is to qualify the principle of free contract in the railroad service. A strike in the army