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In States which have many factories the well-known factory act of Massachusetts or New York, based upon the English act which served as a model to all such, is recommended for uniform adoption. (See Chap. IV.)
The sweat-shop law, also, which is now practically identical in the important States of New York, Massachusetts, Pennsylvania, and Ohio, is recommended for general adoption.
On the subject of railway labor (Chap. VII), which is undoubtedly covered by the interstate powers of Congress, the commission are of opinion that Congress should adopt a consistent code of law regulating all matters concerning employment in that industry, such as the hours of labor, the limitation of continuous runs by engineers, or continuous service by telegraph operators or switchmen, without period of sufficient rest, the enactment of a consistent employers' liability code, including a definition of the fellow-servant doctrine, the liability of the employer or corporation for defective appliances, etc., with definitions of what appliances, bridges, car couplers, overhead guards, bridge guards, blocking of switches and frogs, and all such matters shall be required from railways, and defect of which shall shift the burden of proof of notice upon the defendant; that such a complete code adopted should be made binding in accident cases whenever they are tried in the Federal courts, without regard to the laws of the State or Territory where the accident occurred, so far as such a provision is constitutional; and the commission are of opinion that such a provision would be constitutional in so far as it applied to matters of procedure—that is, evidence, or burden of proof, rather than substantive right of action; and all such regulations would be constitutional as applied to railway cases or steamboat carriers under the interstate commerce doctrine; but beyond this the terms of the law might well apply, as has been said, to all cases arising in any employment which are brought in, or are ultimately tried in, the Federal courts, leaving the court in each case to determine whether in fact the statute can constitutionally be applied to the circumstances of the case.
Such a code would not only have the great advantage of simplifying conditions throughout the country in the large class of railway and steamboat employments, but the force of example would be so great that even in matters where Congress could not properly interfere, such as the substantive cause of injury in an occupation not of interstate commerce, the States would be led by force of example and uniformity, it is hoped, to voluntarily adopt this code, and thus make the law identical in all occupations throughout the country. This the commission believe to be one of the most important efforts in the labor interest to which the attention of Congress can possibly be invited.
The commission note that trade unions (Chap. IX) have rarely, if at all, taken advantage of the statutes permitting them to incorporate. Under the national act (U. S. Stats., 1886, Chap. 567) not one prominent trade union has, in the thirteen years since its enactment, been incorporated.
The statutes already adopted (Chap. IX, Art. A, sec. 3) in the several States, discriminating as between union and nonunion labor by making it a penal offense for an employer to exclude union labor only, seem to us unconstitutional, being class legislation. The statute should apply to union and nonunion labor alike, if it is to be enacted at all. The right to be employed and protected without belonging to a union should be preserved; but every facility should be given labor to organize if it desires, and the last vestige of the notion that trade unions are a criminal conspiracy should be swept away.
Almost universally the States have adopted statutes protecting tradeunion labels. Against such statutes there can be no possible objection in principle, and Congress might well enact a similar law.
On the important subject of strikes and boycotts, reference is had to the accompanying digest (Chap. IX, Art. B). The experiments of the States in regulating them by statute are extremely interesting. Substantially they come to this, that a strike shall be always legal except when conducted on a public employment in such a manner as to injure the public safety or health; and, on the other hand, that a boycott or combination to injure or control the liberty of an individual is always illegal, sometimes criminal. This is substantially the modern American common law. Nothing should be a conspiracy in a trade dispute except where the acts actually committed or the object of the combination would be an act criminal under the common law.
Laws against blacklisting have very generally been adopted, and are probably sound in principle when they do not go to the length of prohibiting privileged communication or fair information upon subjects of mutual interest, for the blacklist in itself is a kind of boycott and is covered by the common law on that subject. Congress has already legislated upon blacklists in railway employments and upon compulsory benefit societies by the act of June 1, 1898, but these subjects require further consideration.
The use of private police detectives, or other armed bodies of hired men, generally imported from one State to another, to repel a strike or defend property, or newly engaged employees, in times of labor trouble, has aroused the anxious attention of many State legislatures, some of which have gone to the length of passing laws of doubtful constitutionality forbidding the passage of persons from one State to another for the purpose of such protection. This matter lies probably within the powers of Congress, and a reasonable statute to prevent abuses should be enacted.
The arbitration and conciliation laws have recently been considered by Congress in connection with the arbitration act applying to railway disputes (U. S. Stats., 1898, 370). In a general way, the commission would report that such laws in the States have been found effective for purpose of conciliation, but that the strict arbitration machinery rarely functions well. The arbitration laws now existing, particularly the national act of 1898, should be made clear, so that the parties to the arbitration, whether employer or employee, should appear as lawfully constituted associations or corporations, or otherwise as individuals with proper machinery for representation by their leaders; and the commission believe that whoever inaugurates a lockout or strike without first petitioning for arbitration, or assenting to it when offered, should be subjected to an appropriate penalty. The object of the first recommendation is to get responsible parties to the record, and to make sure that the individuals concerned in the difficulty are lawfully represented in the proceedings; and the object of the second recommendation is to encourage peaceable adjustments of differences and to discourage the resort to strikes or lockouts until legal methods have been tried. The statute should not confine arbitration to a public board, but should permit the parties to choose arbitrators if they prefer. There should be no provision to compel either side to abide by the decision. It is believed that a full and fair investigation of the facts will, in most cases, bring the parties into substantial agreement, while in other cases the result may be safely left to public opinion.
In conclusion, the commission would recommend the establishment by all the States of labor bureaus or commissioners, who shall, besides their local duties as now defined, be charged with that of exchanging their statistics and reports, and of convening at least once a year in national conference for general consultation, which national conference should have power to submit directly to Congress its recommendations for such Federal legislation as a majority of the State commissioners may deem advisable, and shall also submit to all of the States, through the commissioner of each separate State, their recommendations for such uniform State statutes upon labor subjects as may seem wise and desirable.
In its final report the commission propose to cover matters not herein discussed, and, possibly, to accompany its report with drafts of bills embodying both the national and State legislation recommended.
JAMES H. KYLE, Chairman.
EUGENE D. CONGER.
We can not concur in the above report. Conditions, arising partly from climatic, partly from other causes, vary decidedly in the different and widely separated sections of our country. These conditions, coupled with the fact that manufacturing industries of different kinds have been recently and only yet partially established in certain States, render it both unjust and impracticable to attempt any uniform laws regulating labor in all the States, if labor and capital are to have their full and free development.
The inalienable right of private contract should be allowed to both laborer and employer, and the unwise limiting of the hours of work by law we believe to be fraught with danger. The future prosperity of this country as the leading manufacturing nation of the world demands the greatest freedom of contract between labor and capital.
ELLISON A. SMYTH.
I am of opinion that it would be unwise and unjust to endeavor to force uniformity of labor laws throughout the United States. The length and the heat of the day are prime factors respecting the hours that may be appropriated to labor, and respecting the rules applicable to it, as well as to its cost. These things under such regulations as suit the climate, the community, and the conditions to be dealt with will work themselves out better under local self government than under any iron-clad rule adopted by or suggested from a central power.
I therefore concur in the spirit of the views expressed on this subject by Messrs. Ellison A. Smyth and C. J. Harris.
JNO. W. DANIEL.