SUBCOMMITTEE ON LABOR, No. 1, The committee met at 2 o'clock p. m., Hon. John J. Gardner (chairman) in the chair, having under consideration H. R. 15651. STATEMENT OF DANIEL DAVENPORT, OF BRIDGEPORT, CONN., REPRESENTING THE AMERICAN ANTIBOYCOTT ASSOCIATION. Mr. DAVENPORT. Mr. Chairman, of course the subject of drafting a law is a very practical matter. It is important, in the first place, to consider what the existing law is upon the subject and what the measure proposed is, and what will be the effect of the proposed changes upon existing law, and therefore I would ask that the existing law, which I will read, be incorporated in my remarks, being chapter 352 of the acts of Congress for the year 1892. The chapter reads as follows: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the service and employment of all laborers and mechanics who are now or may hereafter be employed by the Government of the United States, by the District of Columbia, or by any contractor or subcontractor, upon any of the public works of the United States or of said District of Columbia is hereby limited and restricted to eight hours in any one calendar day; and it shall be unlawful for any officer of the United States Government, or of the District of Columbia, or any such contractor or subcontractor whose duty it shall be to employ, direct, or control the services of such laborers and mechanics to require or permit any such laborer or mechanic to work more than eight hours in any calendar day except in cases of extraordinary emergency. SEC. 2. That any officer or agent of the Government of the United States or of the District of Columbia, or any contractor or subcontractor, whose duty it shall be to employ, direct, or control any laborer or mechanic employed upon any of the public works of the United States or of the District of Columbia who shall intentionally violate any provision of this act shall be deemed guilty of a misdemeanor, and for each and every such offense, upon conviction, be punished by a fine not to exceed one thousand dollars or by imprisonment for not more than six months, or by both such fine and imprisonment, in the discretion of the court having jurisdiction thereof. SEC. 3. That the provisions of this act shall not be so construed as to in any manner apply to or affect contractors or subcontractors or to limit the hours of daily service of laborers or mechanics engaged upon the public works of the United States or of the District of Columbia for which contracts have been entered into prior to the passage of this act. Now, there have been, since that law was enacted, several bills proposed to regulate this matter, and one is known as the "Gardner bill," which was introduced at various sessions of the past Congresses, and in order that we may have that bill before the committee and in connection with the law which I have read and in connection with the bill that is immediately before the committee, I would ask that that bill may be inserted, and inasmuch as I want to draw attention to the provisions of that bill in connection with the pending bill, I will read it to the committee. It reads as follows: [H. R. 3076, Fifty-seventh Congress, first session.] A BILL Limiting the hours of daily services of laborers and mechanics employed upon work done for the United States, or any Territory, or the District of Columbia, thereby securing better products, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That each and every contract hereafter made to which the United States, any Territory, or the District of Columbia is a party, and every such contract made for or on behalf of the United States, or any Territory, or said District, which may require or involve the employment of laborers or mechanics, shall con tain a provision that no laborer or mechanic doing any part of the work contemplated by the contract, in the employ of the contractor or any subcontractor contracting for any part of said work contemplated, shall be required or permitted to work more than eight hours in any one calendar day; and each and every such contract shall stipulate a penalty for each violation of the provision directed by this act of five dollars for each laborer or mechainc for each and every calendar day in which he shall labor more than eight hours; and any officer or person designated as inspector of the work to be performed under any such contract, or to aid in enforcing the fulfillment thereof, shall upon observation or investigation report to the proper officer of the United States, or any Territory, or the District of Columbia, all violations of the provisions of this act directed to be made in each and every such contract, and the amount of the penalties stipulated in any such contract shall be withheld by the officer or person whose duty it shall be to pay the moneys due under such contract, whether the violation of the provisions of such contract is by the contractor, his agents or employees, or any subcontractor, his agents or employees. No person on behalf of the United States, or any Territory, or the District of Columbia, shall rebate or remit any penalty imposed under any provision or stipulation herein provided for, unless upon a finding which he shall make up and certify that such penalty was imposed by reason of an error in fact. Nothing in this act shall apply to contracts for transportation by land or water, nor shall the provisions and stipulations in this act provided for affect so much of any contract as is to be performed by way of transportation, or for such materials as may usually be bought in open market, whether made to conform to particular specifications or not. The proper officer on behalf of the United States, any Territory, or the District of Columbia, may waive the provisions and stipulations in this act provided for as to contracts for military or naval works or supplies during time of war or a time when war is imminent. No penalties shall be exacted for violations of such provisions due to extraordinary emergency caused by fire, flood, or danger to life or property. Nothing in this act shall be construed to repeal or modify chapter three hundred and fifty-two of the laws of the Fifty-second Congress, approved August first, eighteen hundred and ninety-two, or as an attempt to abridge the pardoning power of the Executive. Mr. HASKINS. You have read those in order to have them put into this record? Mr. DAVENPORT. Yes, in order that they may be directly before the gentlemen who have the very onerous task of drafting a bill, if one is to be drafted, and also to consider it in connection with what I want to say and what I suppose other gentlemen want to say. The proposed bill, under the same title, is as follows: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That every contract hereafter made to which the United States, any Territory, or the District of Columbia is a party, and every such contract made for or on behalf of the United States, or any Territory, or said District, which may require or involve the employment of laborers or mechanics shall contain a provision that no laborer or mechanic doing any part of the work contemplated by the contract, in the employ of the contractor or any subcontractor contracting for any part of said work contemplated, shall be required or permitted to work more than eight hours in any one calendar day upon such work; and every such contract shall stipulate a penalty for each violation of such provision in such contract of five dollars for each laborer or mechanic for every calendar day in which he shall be required or permitted to labor more than eight hours upon such work; and any officer or person designated as inspector of the work to be performed under any such contract, or to aid in enforcing the fulfillment thereof, shall, upon observation or investigation, forthwith report to the proper officer of the United States, or of any Territory, or of the District of Columbia, all violations of the provisions in this Act directed to be made in every such contract, together with the names of each laborer or mechanic violating such stipulation and the day of such violation, and the amount of the penalties imposed according to the stipulation in any such contract shall be directed to be withheld by the officer or person whose duty it shall be to approve the payment of the moneys due under such contract, whether the violation of the provisions of such contract is by the contractor or any subcontractor. Any contractor or subcontractor aggrieved by the withholding of any penalty as hereinbefore provided shall have the right to appeal to the head of the Department making the contract, or in the case of a contract made by the District of Columbia to the Commissioners thereof, who shall have power to review the action imposing the penalty, and from such final order whereby a con tractor or subcontractor may be aggrieved by the imposition of the penalty hereinbefore provided such contractor or subcontractor may appeal to the Court of Claims, which shall have jurisdiction to hear and decide the matter in like manner as in other cases before said court. SEC. 2. That nothing in this act shall apply to contracts for transportation by land or water, or for the transmission of intelligence, or for such materials or articles as may usually be bought in open market, whether made to conform to particular specifications or not, or for the purchase of supplies by the Government, whether manufactured to conform to particular specifications or not. The proper officer on behalf of the United States, any Territory, or the District of Columbia may waive the provisions and stipulations in this act during time of war or a time when war is imminent. No penalties shall be imposed for any violation of such provision in such contract due to any emergency caused by fire, famine, or flood, by danger to life or to property, or by other extraordinary event or condition. Nothing in this act shall be construed to repeal or modify chapter three hundred and fifty-two of the laws of the Fifty-second Congress, approved August first, eighteen hundred and ninety-two. Now, in order that the members of the committee who have not previously heard the discussions here, and who might not find them in looking into the voluminous records of the previous hearings, I want to call their attention to the conceded purpose and effect of this bill. It has always been contended here, and has always been stated by the opponents of the bill, that the necessary effect of it would be to compel those who might desire to obtain Government work to either work their whole factory on an eight hour a day basis or to abstain altogether from doing work for the Government. Of course it is apparent to everyone that if everybody was obliged to abstain from doing work for the Government under laws of this kind, it would paralyze the work of the Government, and, as I understand it, the purpose of this bill is to give directions to the officers of the Government as to what kind of contracts they should make. It would not be the part of wisdom on the part of the legislative department to enact a law which would have the latter effect. The other alternative is conceded to be the inevitable result, both by those who oppose the bill and those who favor it; and in that connection I want to read from the statement made by Mr. Gompers, who appeared before this committee in 1902, and it is to be found on page 213 of the hearings before this committee at that time, when Judge Payson stated, as he had previously stated, that it would be impossible for any plant to run a part of the time, doing Government work for eight hours and other work for ten hours, and that the purpose of this bill was to compel everyone of those concerns to go to the eight-hour basis: This is Mr. Gompers's statement: Judge Payson did me the honor, and did our movement the honor, to state candidly our position so far as this bill is concerned. That is what we hope to accomplish. We believe exactly what some of the employers who appeared before this committee and other committees upon the subject say. We believe it will not be long when the eight-hour law shall pass, and I trust it may pass. If this bill shall become a law, it will not long be possible to operate one branch of a plant on the eight-hour basis and another upon the ten-hour basis. So that the anticipated effect, the predicted effect, and the desired effect is to compel every concern that does any work for the Government to run its factory upon an eight-hour basis entirely; otherwise, if they all abstain from it, of course the business of the Government could not be carried on, for you will observe that the purpose of this bill is to make it impossible for anybody to work overtime and be paid overtime. The very object of the bill is to deprive the workmen of this country of the privilege, if they see fit to exercise it, of working overtime for overtime pay, and to deprive the employer of the privilege of hiring men on such terms; and as I say, it is conceded, or has been heretofore, by those who have advocated this legislation, as well as by those who have opposed it, that that will be the result. It is worth while to consider the genesis of such an interesting proposition as that, and in that connection I want to read what Mr. Gompers said before the Committee on Education and Labor of the United States Senate in 1903, to be found in the hearings at page 601. have previously brought to the attention of the committee the terms of the act of 1892. Now, how did any such idea as this, any such proposition as this, which aims a blow at the individual liberty of every workman in this country to supply his family and do work to support his family and better his condition by working more than eight hours a day if he chooses to, and depriving an employer of the privilege which he has to employ such persons how did it originate? It originated, it appears, in a scheme to circumvent the Constitution. of the United States. Year after year the proposition was pending before this committee to provide an amendment to the act of 1892 which directly accomplished that result, and here is what Mr. Gompers says about the way this originated: It was during a hearing upon an amendment to the present eight-hour law, some six years ago, before the House Committee on Labor, when Mr. Phillips was chairman, and Mr. John J. Gardner, of New Jersey, a member of the committee-I think two days before the expiration of the life of that Congress-that an argument was had, and Mr. Gardner, in discussing the amendment, called attention to what he believed, that the amendment would be regarded and construed as unconstitutional and ineffective if it were enacted; and then began an argument on a line of policy upon which a bill could be drafted for the extension of the eight-hour law, and designed to cover what we had in view and yet be effective and constitutional. It was my privilege to be at that hearing, and, to be very frank with you, I was hurt and indignant at the thought that a bill that had dragged along for the entire two sessions was not reported upon. A member of the committee who had found effective fault with an amendment which had been before the committee during that entire Congress at the last hour suggested a line of a bill that would be effective. The result of it, however, was that the committee reported the amendment favorably. The bill died, but we had gained at least a favorable report through the purpose of an effective eight-hour bill or law. In the next Congress Mr. Gardner was made chairman of the Committee on Labor, and together with him were associated my friend, Mr. James Duncan, Mr. P. J. Maguire, one or two other gentlemen, and myself, and we drafted jointly a bill upon the lines suggested by Mr. Gardner, making such suggestions and alterations as seemed to us appropriate within proper lines and that might make the bill, if enacted, more effective. That bill was before the Committee on Labor, and hearings were had upon it, and I remember very well my friend, Judge Payson, at the first hearing, challenged the world to produce any man insane enough to stand sponsor for that bill. He never believed that there was anyone who dared say one word in its behalf. I then did not have the honor of the judge's acquaintance. He did not know me, nor did he know any of my associates who were in the room, but we did dare to say something in its behalf; and, as he has already advised you, he has met us here before the Senate Committee on Education and Labor, not only in this Congress but in the Fifty-sixth and in the Fifty-fifth Congresses, and I believe he has at least modified his view and his tone as to the sanity of those who advocate the bill, and that at least we have the temerity to stand for that which we believe. It may not be amiss to call attention to the fact that, despite the efforts to throw a cloud of odium upon the manner and make-up of the Committee on Labor of the House, and the House of Representatives itself, this very bill was not only reported favorably by the House Committee on Labor and passed almost unanimously in three Congresses of the United States, but it also had the favorable report of the Senate Committee on Education and Labor; and this, too, despite the eloquence and legal learning of my friend Judge Payson and his associates before these various committees. That bill, having passed the House of Representatives, was referred to the Committee on Education and Labor, and various modifications were made in it, and it was reported out, and is substantially if not literally the bill that is now offered for the consideration of this committee. The only exception that I note, from such examination as I have made of it, is the addition as to any extraordinary event or occasion. There are various aspects in which to consider this bill. In the interim some very interesting decisions have been made by the Supreme Court of the United States bearing upon this subject and upon the rights of the employer and the rights of workingmen to dispose of their labor, upon what, as I understand the purpose of this bill and as I understand the desire of those who advocate its passage, is sought to be accomplished by it. Right in that connection, as describing what those rights are, I want to call the attention of the committee to the decision of the Supreme Court in the case of William Adair, plaintiff in error, v. The United States, decided at this present term and reported in the Two hundred and seventh United States. Of course it was a case that involved the constitutionality of the clause in the Erdman Act, making it a criminal offense for a person to discharge an employee because he belonged to a labor union. I read this for the purpose of showing how squarely the Supreme Court of the United States has placed itself on record in line with a certain other decision, which I shall proceed to quote, upon this kind of bill, which is now pending before the committee, and how squarely it plants itself upon the constitutional rights which are sought, as I say, to be taken away by indirection, if possible, by this bill. I quote as follows: The first inquiry is whether the part of the tenth section of the act of 1898 upon which the first count of the indictment was based is repugnant to the fifth amendment of the Constitution declaring that no person shall be deprived of liberty or property without due process of law. In our opinion that section, in the particular mentioned, is an invasion of the personal liberty, as well as of the right of property, guaranteed by that amendment. Such liberty and right embraces the right to make contracts for the purchase of the labor of others and equally 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 sustained which the law, upon reasonable grounds, forbids as inconsistent with the public interests or as hurtful to the public order or as detrimental to the common good. This court has said that "in every well-ordered society, charged with the duty of conserving the safety of its members, the rights of the individual with respect of his liberty may, at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand." Jacobson v. Massachusetts (197 U. S., 11, 29) and authorities there cited. Without stopping to consider what would have been the rights of the railroad company under the fifth amendment, had it been indicted under the act of Congress, it is sufficient in this case to say that as agent of the railroad company and as such responsible for the conduct of the business of one of its departments, it was the defendant Adair's right, and that right inhered in his personal liberty, and was also a right of property, to serve his employer as best he could, so long as he did nothing that was reasonably forbidden by law as injurious to the public interests. 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 upon the terms offered to him. Mr. Cooley, in his treatise on Torts, page 278, well says: "It is a part of every man's civil rights that he be left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice, or malice. With his reasons neither the public nor third persons have any legal concern. It is also his right to have business relations with anyone with whom he can make contracts, and if he is wrongfully deprived of this right by others, he is entitled to redress." |