1

lockouts. For settling differences and avoiding these farreaching conflicts there have been devised four main methods: mediation or conciliation, voluntary arbitration, compulsory investigation, and compulsory arbitration.

(1) Definition of Terms

By mediation or conciliation is usually meant the bringing together of employers and employees for a peaceable settlement of their differences by discussion and negotiation. The mediator may be either a private or an official individual or board, and may make inquiries without compulsory powers, trying to induce the two parties by mutual concessions to effect a settlement. The successful mediator never takes sides and never commits himself as to the merits of a dispute. He acts purely as a go-between, seeking to ascertain, in confidence, the most that one party will give and the least that the other will take without entering on either a lockout or a strike. If he succeeds in this, he is really discovering the bargaining power of both sides and bringing them to the point where they would be if they made an agreement without him. Where the difficulty is due to the parties' not having thoroughly discussed the situation together, the mediator is often able to bring them into joint conference, and, in practice, most of the settlements have been arranged through compromise. In other cases the parties are unwilling to admit to each other the utmost concession they will make,

1 In the German Empire there were 10,484 strikes in the years 1899 to 1905, affecting 938,543 men, and 583 lockouts, affecting 207,800 men. In Austria there were 3,073 strikes affecting 572,746 men from 1894 to 1904, and 69 lockouts involving 43,395 men. In France, from 1890 to 1904, there were 7,741 strikes involving 1,865,620 men, and from 1900 to 1904, 7 lockouts involving 1,031 men. In Belgium there were 961 strikes affecting 274,654 men from 1896 to 1904. Italy had 3,852 strikes affecting 855,066 men from 1895 to 1903. In Great Britain and Ireland there were 6,030 strikes and lockouts affecting 1,783,889 men from 1895 to 1905 (Maximilian Meyer, Statistik der Streiks und Aussperrungen, 1907, pp. 43, 45, 71, 78, 107, 116, 133, 154, 158, 184). From 1881 to 1905 there were in the United States 36,757 strikes involving approximately 8,703,824 employees, and 1,546 lockouts affecting 825,610 employees (Commissioner of Labor, Twenty-first Annual Report, 1906, pp. 476, 477, 736, 737).

fearing to weaken their position. In such cases a mediator whom both sides can trust can render invaluable service as an intermediary. Occasionally parties refuse to treat with each other, but will consent to make each a separate settlement with the mediator. Finally, mediators, through their familiarity with methods for dealing with analogous difficulties in different trades, are sometimes able to suggest a solution. In all cases the mediator is merely a confidential adviser. Even when he is a state authority he does not exercise any of the compulsory powers of the state, and if he even endeavors, by public investigations and recommendations, to bring public opinion to bear upon the disputants, he disqualifies himself for further mediation.

Voluntary arbitration occurs when the two parties, unable to settle the controversy by themselves or with the assistance of a mediator, agree to submit the points at issue to an umpire or arbitrator, by whose decision they promise to abide. The complete procedure of arbitration consists of a number of steps: (1) The submission of the dispute to the decision of a third party; (2) submission to an investigation; (3) refraining from strike or lockout pending investigation; (4) drawing up an award; (5) enforcement of the award and refraining from strike or lockout during its life. Arbitration remains strictly voluntary even if at every step except the first the state uses its compulsory power. The essential thing is that both parties consent in advance to calling in the powers of government. Hence it is not inconsistent with the idea of voluntary arbitration for the state to use its power of compelling testimony, or even of enforcing an award, provided that both sides have previously agreed that this be done.

Under the system of compulsory investigation a board created by the state summons witnesses and takes testimony on the initiative of one party to the dispute without the consent of the other, or upon its own initiative without the consent of either. The board is one of investigation and recommendation, without legal power to enforce its awards. Compulsory investigation is sometimes accompanied by prohibition of strikes or lockouts pending the completion of the investigation and the publication of the recommendations. This compulsory postponement is the characteristic feature

of the Canadian industrial disputes investigation act of 1907, copied by Colorado in 1915, designed to prevent sudden strikes or lockouts. But it is not essential to compulsory investigation. The alternative is compulsory investigation without the prohibition of strikes and lockouts, and this is provided for in the laws of several American states.2 These laws are generally thought to establish voluntary systems of mediation, but they go beyond that point when they take testimony without the consent of either side.

Compulsory arbitration consists in the government's directly or indirectly compelling employers and employees to submit their disputes to an outside agency for decision. In a complete system of compulsory arbitration, government coercion is exercised at all five of the steps previously mentioned. Differences must be submitted to arbitration; witnesses must testify and produce papers; the parties must refrain from strike or lockout during the investigation; the board must reach a decision and announce an award; the parties must observe the award and refrain from strike or lockout during its life. The penalties for violation are fine and imprisonment, not, however, imposed on a workman for ordinarily quitting work or on an employer for the ordinary discharge of a workman, but for quitting or discharging collectively or with intent to obstruct any of the steps essential to the arbitration.

(2) Foreign Countries

Voluntary arbitration attained its most characteristic development in England. Sir Rupert Kettle, one of the founders of the English system, wrote: "It is agreed that according to the spirit of our laws and the freedom of our people, any procedure, to be popular, must be accepted voluntarily by both contending parties," and the whole history of con

1 See "Coercion by Government," p. 160.

See "United States," p. 132.

ว Jos. D. Weeks, "Report on the Practical Operation of Arbitration and Conciliation in the Settlement of Differences between Employers and Employees in England," Pennsylvania Doc. 1878-1879, Legislative Documents, Vol. II, No. 8.

ciliation and arbitration in England verifies his assertion. In the early years of the nineteenth century the effects of the industrial revolution, the repeal of the conspiracy laws in 1824 permitting the organization of many new unions, and the panic of 1828 with the ensuing years of depression, united to bring about a series of violent strikes and lockouts. These early collective disputes were envenomed by mistaken legislation to control the workmen, and the memory of the period embittered the relations of masters and workmen for years. Gradually, however, both sides began to see the futility of these destructive methods, and the idea of avoidance or peaceful settlement of trade disputes by means of joint boards of employers and employees took root. One of the very earliest of these boards was established for the Macclesfield silk trade in 1849, and was suggested by the French industrial courts (conseils de prud'hommes).1 It proved a failure. In 1856 and 1860 committees of the House of Commons found the men favorable to arbitration, but the employers opposed to state intervention. The year 1860, in which A. J. Mundella established the first permanent board of conciliation and arbitration, marks the real beginning of the movement for conciliation, and between 1867 and 1875 countless boards were established without legislation.

It was not until 1896 that Parliament enacted legislation dealing solely with collective disputes. The act of 18242 applied only to individual disputes and the act of 1867 3 attempted to introduce the French industrial courts. The act of 1872 provided for conciliation boards, but was a dead letter. In 1893 occurred the disastrous coal mine strike in which finally the government intervened and arranged a conciliation board similar to those which had been so widely organized without government interference. Following this came the conciliation act of 1896. It repealed the acts of 1824, 1867, and 1872, and is the present law. It entrusts to the board of trade 5 certain powers of mediation. The board may (1) register any private conciliation or arbitration board on application. This confers no additional powers on these

1 See "Industrial Courts," p. 86.

2

5 Geo. 4, C. 96.

330-31 Vict., C. 105. 4 35-36 Vict., C. 46.

'Similar to our Departments of the Interior, Commerce, and Labor.

boards. (2) If the means of conciliation in a district are inadequate the board of trade may appoint mediators to confer with the parties as to the formation of conciliation boards. (3) In case of an industrial dispute the board of trade may (a) make an inquiry, (b) bring the parties together, (c) on the application of one party appoint one or more conciliators, (d) on the application of both parties appoint an arbitrator. All expenses are paid by the government.

Since the passage of the act two additions have been made to the conciliation machinery of the board of trade, neither of which necessitated further legislation. In 1908, the president of the board sent a memorandum to the chambers of commerce and employers' and workmen's associations, stating that the scale of operations of the board under the conciliation act required more formal and permanent machinery and announcing the creation of a standing court of arbitration. Three panels were to be appointed by the board, the first comprising "persons of eminence and impartiality" from whom the chairman should be chosen, the second employers, and the third workmen. In case of a request for the services of the court, it should be nominated by the board of trade from these panels, either selected by them or jointly selected by the parties, and should consist of either one or two representatives of each side, and a chairman, who should have a vote. In addition, technical assessors or experts might be appointed by the board to assist the court. The members of the court would thus be unconnected with the particular dispute but representative of the respective classes. In 1909 the Forty-second Trades Union Congress adopted a resolution that the congress should elect the members of the workmen's panel, to guard against political influence, but the board of trade denied the request on the ground that "public confidence in the impartiality of the tribunal" was better served by the existing arrangement.

The court of arbitration proving a failure, an industrial council, similar to that requested by the Trades Union Congress in 1909, was created in 1911. It consists of "representatives of the two great sides of the industry of the country." The chairman of the industrial council is called chief industrial commissioner." The reasons for