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2. While their number has not been great, there have been cases in which all procedural requirements of the Norris-La Guardia Act have been met.43

3. “If there is still a problem of 'government by injunction,' insofar as the Federal courts are concerned, as the unions again are complaining, it lies in the injunctions issued under the Taft-Hartley Act and the injunctions taken out by the United States Government in railroad and coal strikes" in the late forties and early fifties.

43 One such case is Tri-Plex Shoe Co. v. Cantor, 25 F. Supp. 996 (1939). The judge admitted that this was a labor dispute and ruled:

"Under Section 107, Clause (a) no injunction can issue for acts of violence except against the individuals who committed the acts. Here acts of violence have been committed by individuals. There may be a finding of who the guilty parties were and an injunction issue against them.

"Under Clause (b) there must be a finding of substantial and irreparable injury to the property of the plaintiff. The Supreme Court has held that the business in which a man is engaged is property. The finding may be made of such injury.

"Under Clause (c) there must be a finding that greater injury will follow the denial than will follow the granting of relief. The plaintiff will suffer loss by a denial. The only effect upon the defendants of the granting of an injunction is psychological. They will incur no money loss. A finding of this fact may be made.

"To comply with Clause (d) a finding of no adequate remedy at law may be made. "Clause (e) requires a finding that the police are unable to furnish adequate protection to the plaintiff. No just complaint can be made of the conduct of the police. They have afforded the plaintiff all the protection which it is possible to give. No police protection is adequate in a strike or can be fully given. . . . The finding called for may be made.”

All necessary findings were made and the injunction was issued.

CHAPTER 6

Development of the Railway Labor Act

Sixty-five years of experience with Federal legislation governing the labor relations of employers and employees in the railroad and airline industries lie behind the Railway Labor Act. In this period Congress has developed by trial and error a broad policy for dealing with transportation labor problems. Seven statutes have been enacted on this subject: the Act of 1888, the Erdman Act of 1898, the Newlands Act of 1913, the Adamson Act of 1916, the Esch-Cummins Transportation Act of 1920, the 1926 Railway Labor Act, and the 1934 amended Railway Labor Act. The Railway Labor Act does not purport to affect labor or industry generally. The Act deals only with labor in special fields of transportation. It is not here contended that it would be practicable or desirable to extend to all groups of labor the principles and machinery of the Railway Labor Act. An understanding of these matters, however, may contribute toward a sound growth of industrial-relations institutions generally.

1

The Law of 1888. In 1888 Congress enacted the first law seeking a peaceful adjustment of labor disputes on the railroads. This law grew out of a series of events marked by economic depression and general industrial unrest. On August 7, 1882, the Senate directed its Committee on Education and Labor to study the situation, to report legislation to modify the relations between labor and capital, and to deal with the subject of strikes and their causes. At hearings before this committee, representatives of employers and consumers generally favored some form of arbitration, although representatives of labor for various reasons did not favor arbitration. The committee did not issue legislative recommendations. In 1885 and 1886 there were numerous strikes. From an average of fewer than 500 strikes in the preceding four years, the number in 1886 increased to over 1,400, involving more than half a million workers. The Knights of Labor grew in membership from 104,066 in 1885 to 702,

1 Act of Oct. 1, 1888; 25 Stat. 501.

2 Joshua Bernhardt, The Railroad Labor Board, Johns Hopkins Press, Baltimore, 1923, p. 9.

924 in 1886 and participated in many of these disputes. Strikes on the railroads of the Southwest were especially violent. Professor Taussig observed: "The year 1886 is likely to be noted as a great strike year; and, of the many strikes which took place in its course, that on the Missouri Pacific Railroad system had the widest effects and the greatest significance. It was an extreme case-extreme in its magnitude, extreme in the methods and the temper of the strikers.” 4

On April 3, 1886, the House of Representatives passed a bill which 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 arbitration,” and “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." The Senate also passed the bill, on February 28, 1887, but President Cleveland declined it. Before this, however, in April, 1886, President Cleveland had proposed to Congress legislation he desired. It was his suggestion that a three-man permanent commission be appointed by the President, with power to investigate disputes which might disrupt interstate commerce. The commission, being permanent, would have the stability and accumulated experience which would be useful in settling labor disputes. Subsequently, Congress passed the law of 1888, approved by President Cleveland on October 1, 1888, adopting some of the President's recommendations."

Provisions of the Law. The law of 1888 applied to disputes "between railroad or other transportation companies" engaged in interstate commerce, and their employees, when their differences threatened to interfere with the transportation of property or passengers. The law proposed to deal with such disputes in two ways: (1) voluntary arbitration and (2) investigation.

When the parties agreed to arbitration, it was provided that the railroad was to appoint one member of an arbitration board, the employees were to appoint another, and these two members were to choose a third as chairman. The three arbitrators were to be "citizens of the United States and wholly impartial and disinterested in respect to such differences or controversies." The board was to possess the same power of obtaining witnesses and compelling their attendance, "preserving order during the sittings of the board, and requiring the production of papers

3 Norman J. Ware, The Labor Movement in the United States, Appleton-CenturyCrofts, Inc., New York, 1929, p. 66.

4 F. W. Taussig, "The Southwestern Strike of 1886,” Quarterly Journal of Economics, Vol. 1, 1887, p. 184.

5 C. O. Fisher, Use of Federal Power in Settlement of Labor Disputes, U.S. Bureau of Labor Statistics Bulletin 303, 1922, p. 9.

6 Ibid., pp. 7-12. The law is found at 25 Stat. 501.

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." In no case, however, was any witness to be "compelled to disclose the secrets or produce the records or proceedings of any labor organization" of which he might be an officer or member. The board was "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" submitted in writing by all the parties, who were given full opportunity to be heard on oath, in person and by witnesses, with the right to be represented by counsel. The board's decision was to be publicly announced and filed with the Commissioner of Labor. Acceptance of the award was left entirely to the will of the parties. No provision was made for court enforcement, and public opinion was intended to compel compliance with the award.

When arbitration was not accepted, the Act of 1888 gave the President authority to appoint a temporary investigating commission of three persons to be made up of the Commissioner of Labor and two other persons, at least one of whom was to be a resident of the state or territory in which the controversy arose. The commission was to be established "for the purpose of examining the causes of the controversy, the conditions accompanying, and the best means for adjusting it." The result of their examination was to be immediately reported to the President and Congress; and on the rendering of their report, their services were to be terminated. The Act provided that the services of such a commission might be tendered by the President "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."

The Pullman Strike and the Debs Case. Although the arbitration provisions of the Act of 1888 were never exercised, the investigation provisions were used in the Pullman strike of 1894. Early in that year the Pullman Palace Car Company had a dispute with its employees at Pullman, Ill., over wages, rents, and shop conditions." The Pullman employees were affiliated with the American Railway Union, which was headed by Eugene V. Debs. Debs proposed that the dispute be arbitrated, but the company declined. As a result the members of the American Railway Union refused to haul Pullman cars. Outbursts of violence occurred. When the local officials did not bring the situation under control, Federal Attorney General Olney instructed Federal officials: "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 Post

Ibid., pp. 15–19.

master 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." "

The President ordered Federal troops to Chicago, although there had been no request by the governor or legislature of Illinois. In 1895 the Federal Supreme Court, in the Debs case, upheld the validity of the action of President Cleveland. The Court declared:

As, under the Constitution, power over interstate commerce and the transportation 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 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.

Following the Pullman strike, President Cleveland appointed an investigating commission pursuant to the Act of 1888. The Pullman Commission, after holding hearings, made its report to the President on November 14, 1894. It advanced the following recommendations for settling railway labor disputes: that there be a permanent commission of three members; that the authority of the commission in the area of railway labor disputes be comparable to the authority which the Interstate Commerce Commission possessed in the area of railway rates; that the railroads be obliged by law to comply with the decisions of such commission; that the commission have power to intervene in disputes upon its own motion as well as upon request of the parties; that conciliation should be the first aim of the commission; that, except for certain reasons, employees should not be discharged until after investigation by the commission, and that employees should not be allowed to participate in a strike or boycott against the railroad during the same period; that for a period of six months after the commission's decision railroads were not to discharge an employee in whose place another man was put, except where there existed specified reasons; and that for the same six-month period employees must give thirty days' notice before being permitted to leave the employ of the railroad.10

8 Ibid., p. 15.

9158 U.S. 564.

10 Fisher, op. cit., p. 19.

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