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REMEDIES FOR STRIKES ON PUBLIC UTILITIES Legislation to Prevent Strikes Will be Ineffectual Unless Adequate Remedies are Provided for its Enforcement

The following recommendations by Walter Gordon Merritt, Associate Counsel, American Anti-Boycott Association, to the Public Service Commission of New York, whose Assembly is now considering legislation to prevent strikes on public utilities are equally pertinent to the proposed national legislation of this character before Congress.

"A strike on our railroads such as was narrowly averted. last summer is a barbaric method of protecting the rights of the workers and carries with it not only commercial paralysis but privation and death. No self-respecting nation can permit the private or public interests to be imperiled by the uncertainties of such interruptions. It is essential to preparedness for both peace and war that Governmental arbitration should succeed to industrial strife on public utilities, and that paralysis of transportation facilities, whether by capital or labor, should be absolutely prevented by law.

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"The Railroad Brotherhoods and the American Federation of Labor have stood unitedly against arbitration, voluntary or compulsory, on the ground that it is impossible to secure neutral arbitrators, and further oppose the enactment of any law which regulates wages or hours on public utilities by an impartial tribunal and temporarily or otherwise restricts or prohibits strikes thereon. Through such a strike as was threatened on our railroads is distinctly a death-dealing act, it was endorsed by the Federation of Labor as well as the Railroad Brotherhoods, and instead of being abandoned is even now held in reserve. Only recently the chief of one of the Brotherhoods is reported as saying before a Congressional committee, "I wish to God that I never had recalled the strike order," and Mr. Gompers is reported as saying that "Law or no law, President or no President, such a law will not be obeyed." At a hearing before the Public Service Commission of New York

on February 7, 1917, when a proposed law of this nature was under consideration, Mr. Gompers again declared that labor would disregard any law which restricted strikes on public utilities. It is, therefore, fair to say that labor leaders oppose and may resist any measure which temporarily, or otherwise, restricts the right to strike on any public utilities.

"In view of this outspoken defiance by some labor leaders, the all-important question is the method of enforcing such a law. No considerable opposition arises from capital, and no one doubts the feasibility of enforcing such a law against capital where property rights stand as a hostage for good behavior. But many people, impressed by these emphatic and defiant statements, feel that such a law is certain to meet with a united resistance of the workers with which it cannot cope. This assumes too much. Workers, justly treated and having access to an impartial tribunal for the correction of grievances, would not instinctively resist the law. We even believe that the rank and file, uninfluenced by the leaders, would welcome the law and discover in it more ample protection to their interests than through the uncertainties of industrial war.

"It is therefore reasonable to expect that the source of opposition and resistance will arise from the organizations and their leaders, rather than from the workers, and it is against such resistance that the law should buttress itself by appropriate penalties and remedies. The workers will not strike in violation of such a law if society is not too impotent to protect them against organized incitement to organized law breaking. In the famous Debs case, even after the riots were started, it was the injunction and not the troops which saved the day. Whatever truth there is in this claimed unenforcibility of such a law arises from attempts to imprison a multitude of people who have already been inflamed and who, by reason of numbers and circumstances, are not fully amenable to civil authority. All agitation should be 'nipped in the bud.' Society must look more to organizations and their officers for responsibility and protection instead of proceeding against the rank and file after the unlawful strike is organized. Prevention and not punishment should be the first aim. If this principle is applied

to all disturbances where violence is encouraged, we will have less rioting and disorder in this country.

"In view of the popular fallacies which prevail upon this subject and its enormous importance to public welfare, and in view of the fact that the practical enforcement of such laws against labor seems to be the only difficulty at issue, it is desirable to state the fundamental principles applicable to this difficulty which should be considered in framing such a law.

Fundamental Principles

1. "Adequate and effective remedies and penalties, both civil and criminal, must be provided, whereby the enforcement of the law may be reasonably secured. Without these, the law had better not be enacted. Restrictions on the right to strike and penalties to secure their enforcement, can be justified on the ground that the law makes ample provision for the welfare of the workers by adjudication of their grievances. before an impartial tribunal.

2. "The main reliance for enforcement should be upon the organization and officers instigating, stirring up and manipulating the strikes, rather than the rank and file, who are sometimes misguided victims. Experience proves that in the absence of union agitation and the operation of organization machinery, men who are not oppressed do not on their own initiative engage in strikes, and this is particularly true on public utilities.

3. “CIVIL REMEDIES. The labor unions should be suable at law or in equity for injunctions and damages, so that their responsibility may be thoroughly established.

a. "INJUNCTIONS.-Designated public officials and the public utility company should both have the right to an injunction against acts fomenting or maintaining any strikes in violation of the law, including persuasion, picketing, payment of strike benefits, and even voting on an illegal strike. This is but applying the rule of the United States Supreme Court, that any act, however innocent or constitutionally protected,

becomes unlawful when done in furtherance of an unlawful conspiracy. Any labor leader will bear testimony that if the various steps essential to the commencement or continuance of a strike are enjoined, few, if any, strikes on public utilities could be called and none would succeed.

b. "DAMAGES.-The public utility company affected should also have the right to recover two-fold or three-fold damages for the injury so inflicted, and such damages should be recoverable either as an incident to the injunction suit or in a separate suit at law. In these days when the Railroad Brotherhoods and many prominent unions have an annual income of over half a million dollars and large accumulations on hand for the payment of benefits, the deterrent effect of holding such property as hostage for the observance of the law is simply incalculable.

4. "PENALTIES.-Moderate penalties should be imposed on the rank and file for quitting work in concert, so that it is clearly established that the act of every one in so quitting is a misdemeanor. But in view of the impracticability of prosecuting large numbers of people, the real enforcement of the law should be secured through the other remedies and penalties.

a. "THE OFFICERS OF THE UNION, or any others who actively seek to organize or maintain a strike in violation of the law, should be subject to severe penalties covering both fine and imprisonment. Here there is no difficulty in enforcement, because the number of leaders is limited.

b. "THE UNION, which is responsible for organizing or maintaining such unlawful strike, should be subject to the payment of large fines in the amount of $5,000.00 or more.

"All of these suggestions are directed primarily toward strikes and union activities, but the law should be so framed as to specify with even balance the remedies and penalties for either an unlawful lockout or an unlawful strike, whether carried on by workers or employers."

Importance of Contracts

All laws looking to the restriction of strikes on public utilities and the impartial regulation of working conditions, should preferably provide for a system of contracts stipulating certain arbitration methods of adjusting wage disputes, etc., and specifying the requisite notice for serving employment. The law should provide that any operative entering this semipublic service must voluntarily accept and recognize the terms of such a contract. Once the contract is executed the stability and continuity of the working organization is strengthened both legally and practically.

If the recent efforts to secure remedial legislation do not succeed, the public utility companies owe it to the public to establish such a system of contracts on their own initiative as fast as practicable. All contracts of this kind, whether based on requirements of legislation which prescribes or merely a self-initialed requirement of the employer, are property rights, which, according to the decisions of the United States Supreme Court and most of our state courts, are entitled to protection against any intrusion or impairment on the part of strangers or outsiders. Under such circumstances, any labor organization or its officers which sought to inaugurate or maintain a strike in violation of such contracts could be enjoined and held for damages and all the usual steps incident to such unlawful strikes, and so necessary to their success, could be enjoined, however innocent and peaceful they might otherwise be. In states where this principle is not sustained, special laws should be enacted, looking to the enforceability of all labor agreements, whether individual or collective.

Constitutional Questions

If the Supreme Court of the United States should hold that laws regulating wages on public utilities are unconstitutional, the difficulty could be met by legal provision for a system of voluntary contracts providing for arbitration. To insure the adoption of these contracts by both employers and employees in such event, the law should provide certain handicaps or

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