railways, one representative of labor, and one member chosen by these two or by the mediators. The Newlands act, passed subsequently at the joint request of the railways and the labor brotherhoods, created a permanent mediation and conciliation board of three members, and provided for arbitration, if mediation failed, by a board of six members-two representing the railways, two the employees, and two supposedly impartial. The Newlands act, like the Erdman act, left it optional with the parties whether they should accept mediation or arbitration. So long as the parties were disposed to make settlements through mediation, or to arbitrate, this system was useful as a preventive of strikes. When, however, in 1916 the employees announced that they would not arbitrate, and stuck to it, the system of voluntary arbitration broke down.

Government ownership is urged by some as a specific for all the ills which develop under private ownership; and recently it often has been suggested as the only sure preventive of strikes. But strikes have not been unknown on state railways. The locomotive engineers and firemen of the state railways of Victoria struck in 1903. A serious strike occurred on the state railways of Hungary in 1904. The employees of the state railways of Italy, by threatening to strike, succeeded in 1905 in getting rid of an objectionable general manager. The employees of the two state railways of France went on strike with the employees of all the private railways in 1910. There even has been a strike already on the railway which the government of the United States is building in Alaska; and it was successful, the strikers getting practically all they demanded.

Under either government or private ownership differences are sure to arise from time to time between the management of the railways and the employees. In case the differences become serious, and strikes are permitted, the employees, especially if they are organized, are likely to strike. The Prussian government, true to its character in other respects, makes strikes on the railways it owns and operates practically impossible by prohibiting the employees from be

longing to unions or from holding meetings except such as are attended and presided over by their officers. The employees of the French railways, state and private, on the very day the general strike was declared in 1910, were mobilized under the military laws and ordered to the colors for three weeks' training. The duty to which they were assigned was that of maintaining and operating the railways in the usual manner. It will be noted that this strike was on both state and private railways, and that precisely the same measure was used on both to break it. Similar methods were ployed in breaking the strike on the Hungarian state railways in 1904.

em

It would be neither practicable nor desirable for the government of the United States to interfere, after the Prussian manner, with the organization of railway employees. Nor would it be possible in this country, at least in time of peace, to break a strike by mobilizing railway employees, as was done in France and Hungary. At the same time, our recent experience demonstrated that we could not reasonably hope much longer to avoid nation-wide railway strikes unless some form of coercion was adopted by the federal government to prevent them.

Legislation has been passed in many countries for the prevention of strikes and lockouts, not only on railways and other public utilities, but in industries of almost every kind. Until a comparatively few years ago proposals for the arbitration of labor disputes usually originated with labor and were often rejected by capital. Consequently, at that time labor leaders, seconded by most social reformers, advocated legislation making arbitration compulsory. Within the last quarter-century this system has been tried in several countries, especially New Zealand and Australia. The original compulsory arbitration act of New Zealand was passed in 1894. District boards of conciliation, consisting of both employers and employees, and a court of arbitration, consisting of a president, one representative of the unions of employers and one representative of the unions of workers, were created. Reports as to the operation of this system are practically unanimous. From 1894 to 1900

New Zealand was prosperous; the awards of the arbitration court usually resulted in substantial advances in wages; and during this time compulsory arbitration was in high favor with labor, and there were no strikes. During the next six years the country was less prosperous, the awards began to result in small increases in wages or none, and, as one author says, "labor became less satisfied, and capital less distrustful," but there were still no strikes.

Between 1906 and 1912, when labor was "in open revolt and capital endeavored to uphold the act,' ," there were sixty-three strikes. The first of these was declared by the employees of the street railways of Auckland in November, 1906, showing that the law was no more effective as applied to public utilities and their employees than as applied to other employers and their employees. There was provided a maximum fine of two thousand five hundred dollars for any employer and one of fifty dollars for any employee who should violate the arbitration law; and in this case both the company and the striking employees were fined. But from that time strikes continued to occur in various lines of industry in spite of the fact that fines continued to be imposed. In 1909 the law was amended. Three permanent commissioners of conciliation are now appointed by the government. In case of a labor dispute one of them goes to the scene and tries to settle it. If unsuccessful he organizes a council of conciliation which includes two or more representatives of both parties. Every dispute must now be referred to such a council before it can be carried to the arbitration court. This system is said to work better than the earlier one; but the record shows that while compulsory arbitration in New Zealand has prevented lockouts, it has not prevented strikes. It has been found possible under it always to enforce awards against employers, but not always against employees. In other words, the system is effectively compulsory only in its application to employers.

The experience of Australia has been similar. The Australian commonwealth has a compulsory arbitration act which has been in effect for twelve years, and

the different states have tried various similar schemes. They, also, have prevented lockouts, but not strikes. Norway formerly had a compulsory arbitration law, but opposition to it by both capital and labor caused its repeal. After a general strike in 1916, which itself followed a strike of four months in the mining and iron and steel industries, another compulsory arbitration law was enacted to remain in effect during the continuance of the present war in Europe.

A measure similar in purpose to those mentioned, but narrower in its scope, and differing widely from them in the means it provides for accomplishing its ends, is the Industrial Disputes Investigation Act of Canada. This law was passed in 1907 as a result of a serious and protracted coal-mine strike in one of the Western provinces. It applies to railroads and other public utilities, to mines of all kinds, and, by a recent amendment, to all industries engaged in productive operations of any kind for military purposes. It prohibits, under heavy penalties, a lockout or a strike until the matters in dispute shall have been referred to a conciliation and investigation board. The party about to lockout or strike must give notice to the Dominion government, together with a statement regarding the matters in controversy. The Minister of Labor calls on each party to name a member of the board. These two are given opportunity to name a third, who becomes chairman. If they fail to do so, he is appointed by the Minister of Labor. The primary function of this board is that of mediation. If it fails to effect a settlement, it takes testimony and prepares a report, which is made public, summarizing the evidence and giving its conclusions as to the bases on which a settlement should be made.

This measure differs from those establishing compulsory arbitration in not requiring obedience to the awards made under it. Like them, it has not succeeded entirely in preventing strikes. But almost always in cases of industrial disputes its provisions have been obeyed, with resulting peaceful settlements in a large majority of cases. Of eighty-five disputes on railways which have been investigated under its provisions, all but

seven have been settled without strikes or lockouts; and, as already indicated, the Canadian law applies to disputes affecting any class of railway employees, not merely those in train service.

Our experience in the United States has shown that a system which leaves mediation and arbitration of labor disputes on railways entirely optional with the parties cannot be relied on to safeguard the interests of the public. At the same time the experience of other countries with compulsory arbitration shows that while it is attractive in theory it often proves unworkable in practice. If employees are determined not to carry out the terms of an award, there appears to be, at least in democratic countries, no practical way of compelling them to do so. Fines have proved ineffectual, and provisions for imprisonment probably could not be enforced.

For the present it seems best to take in the United States a middle course between the policy of entirely voluntary arbitration and that of compulsory arbitration. In other words, we should apply to labor controversies threatening to interrupt railway service a system modelled after that of Canada. The most important feature of that system is that it does not make lockouts and strikes illegal and arbitration and acceptance of the awards compulsory, but that it merely makes strikes and lockouts illegal if declared before there has been a public investigation of and report on the matters in controversy.

Most of the leaders of organized labor formerly advocated compulsory arbitration. At present, most of the labor leaders of this country oppose the placing of any restriction on the right of railway employees to strike. They declare that merely to prohibit strikes until there can be public investigation is to subject railway employees to "involuntary servitude." But such a system does not involve any abridgment of the freedom of the individual. It merely imposes a limitation on the action of employees collectively; and no principle of economics or jurisprudence is more fundamental than that it may be the right and duty of society to impose restrictions on the collective action of large numbers of men

which it would be wrong to impose on the action of individuals.

"Involuntary servitude" is merely a euphemism for slavery. It is obvious that legislation prohibiting strikes until after public investigation does not establish slavery. Therefore, we must look beyond this argument for the true reason why labor leaders are so strongly opposed to any restriction of the right of railway employees to strike. The true reason probably is that they fear such restriction will result in weakening the bargaining power of the labor brotherhoods. As already stated, the labor situation on railways and other public utilities is unique, and this point calls attention to one of the most important conditions which make it unique. In every other class of industry employers have the same legal power and moral right to seize upon favorable opportunities to force through reductions in wages and changes in conditions of employment by resort to the lockout that the employees have to seize upon favorable opportunities to force through increases in wages and changes in conditions of employment by resort to the strike. Therefore, in any other industry in which both employers and employees are strongly organized there may be a substantial parity in their collective bargaining power. In the case of railways and other public utilities, on the other hand, the employer may not legally suspend operation. This means, as to most classes of employees, that he cannot use the lockout. In consequence, if the employees of railways and other public utilities are permitted to strike whenever they please, this gives them in collective bargaining an important advantage. The employees in railway-train service in this country have used this advantage often and skilfully. It is mainly owing to this that they have got their wages on a basis higher than those of any other workingmen in the world. A law absolutely prohibiting strikes in train service, if enforced, would largely destroy the advantage in bargaining possessed by these employees. A law merely prohibiting strikes until after public investigation will greatly impair it. While the investigation is going on the most opportune time for putting a strike into effect is

likely to pass, and the ardor of the men for it is likely to cool. This will be partly because of the delay involved. It will also be partly because of the fact that the public will be informed as to the matters in controversy; that it will have before it the recommendations of an impartial board as to a settlement; and that it probably will strongly oppose and condemn any move to bring about a strike in disregard of these recommendations.

From the standpoint of the leaders of organized labor these are strong arguments against imposing limitations on the right to strike. From the standpoint of the public they are just as strong arguments in favor of imposing such limitations. It is not to the interest of the public that the employees of railways and other public utilities shall possess a disproportionate power in bargaining with their employers. The profits of public utilities, unlike those of other concerns, are controlled by public authorities to prevent them from becoming excessive. Since such concerns are required to do business on a comparatively narrow margin of profit, every considerable change in the wages they pay must affect the rates they charge the public or the service they render to it. It is hardly necessary to add that it is to the public interest to interpose all reasonable obstacles in the way of strikes.

However, before a system of compulsory investigation of industrial disputes can be made to accomplish the greatest good, it will have to be given some features which have not yet been introduced into it. Its most important object should be to prevent strikes; but it should also aim to secure settlements of disputes which will be just to all, including the public. But what is just cannot well be determined by such temporary boards as have been organized under the Industrial Disputes Act in Canada and under the Erdman and Newlands acts in this country. The determination of the conditions of employment and the wages that should prevail on railways is as technical, and almost as important, a matter as the determination of railway rates. Therefore the investigation of labor disputes on railways, like the regulation of rates, should be delegated to some

body which, from the training and experience of its members, will be skilful in getting at the true facts and conditions, and in making sound and fair recommendations as to settlements. The body to which this function logically should be delegated is that which already regulates railway rates and operation, viz., the Interstate Commerce Commission. In any event, the connection between the body that investigates labor disputes and the body that regulates rates and operation should be close.

Probably the best alternative to turning the entire matter over to the Interstate Commerce Commission would be to provide that each investigating board should be composed of the following: (1) A permanent chairman, who preferably should be an army officer, and who, because of the permanency of his tenure, would in time become an expert on labor controversies; (2) a member of the Interstate Commerce Commission, to be designated for the occasion by that Commission, who would bring into the deliberations a broad knowledge of the railway, situation; (3) a member of the Federal Trade Commission, to be designated for the occasion by the Trade Commission, who would bring into the deliberations a broad knowledge of the general business situation; (4) a representative of the railways, who would bring expert knowledge of railway matters and express the railway point of view; (5) a representative of the employees, who would bring expert knowledge of the labor situation and express the labor point of view.

The Erdman and Newlands acts provided for arbitration boards composed of equal numbers of representatives of the railways, of the employees, and of the public. It has been justly complained of these boards that the minority of their members representing the public were impartial but not expert, while the majority, representing the employers and employees, were expert but not impartial. Either the Interstate Commerce Commission or boards organized according to the alternative plan suggested above would largely obviate these objections.

As important as it is that the public should have railway labor controversies

elucidated for it by an expert and impartial board, the service which such a board could render in influencing the attitudes of the immediate parties themselves might be more important. In order that this service might be rendered in the most efficient manner, the law should provide that no strike vote might be taken until the investigating board had made its report, and that with every strike ballot sent out there should be enclosed a brief statement, prepared by the board itself, setting forth its conclusions and recommendations and the reasons for them. It might be well to provide also that strike votes must be by ballot, so that no employee may be prevented from expressing his true sentiments. The question whether the railway transportation of the United States shall be interrupted is a more important one than most of those voted on at political elections, and therefore no pains should be spared to insure that it will be voted on intelligently and without duress.

The insuperable obstacle that has been encountered in the administration of compulsory arbitration laws has been that of getting employees to carry out awards. Will equal difficulty be met in the administration of a well-devised scheme of compulsory investigation? Both consideration of the conditions and the experience of Canada indicate that it will not be. The only prohibitions of such a system are those applying to strikes and lockouts

previous to investigation. There is no reason why the penalties applicable, on the one hand, to the railway companies and their officers, and, on the other hand, to the officers of the unions, to their individual members, and to the unions themselves and their properties and funds, cannot be made heavy enough, if enforced, to secure obedience to the law; and it should be much easier to secure enforcement of penalties for violations of such prohibitions than to secure the enforcement of penalties against men who have struck rather than carry out an award already made and which they regard as unjust. There is no "involuntary servitude" in the former proceeding. The latter savors strongly of it.

It is not probable that a plan such as that outlined would secure entirely equitable settlements of railway labor controversies; but it would secure much fairer settlements than any plan tried heretofore. It is not probable that it would entirely prevent strikes in railwaytrain service, but it would almost certainly prevent nation-wide tie-ups while strictly limiting the number affecting smaller areas. Should a well-devised scheme of compulsory investigation of railway labor disputes fail, public sentiment might be educated by its operation and irritated by its failure to a point where it would cause the enactment and enforcement of a law entirely prohibiting railway strikes.