LIBRARY 
 
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 SAN DIEGO
 
 AN AMERICAN LABOR POLICY
 
 THE MACMILLAN COMPANY 
 
 HEW YORK BOSTON CHICAGO DALLAS 
 ATLANTA SAN FRANCISCO 
 
 MACMILLAN & CO., LIMITED 
 
 LONDON BOMBAY CALCUTTA 
 MELBOURNE 
 
 THE MACMILLAN CO. OF CANADA, LTD. 
 
 TORONTO
 
 AN AMERICAN LABOR 
 POLICY 
 
 BY 
 
 JULIUS HENRY COHEN 
 
 Author of "Law and Order in Industry," "The Law: 
 
 Business or Profession?" "Commercial 
 
 Arbitration and the Law" 
 
 gorfe 
 
 THE MACMILLAN COMPANY 
 
 1919 
 
 All rights reserved
 
 COPTHISHT, 1919 
 
 BY THE MACMILLAN COMPANY 
 Set up nd elsctrotyped. Publiahed, M7, 1919
 
 Co 
 
 MY MOTHER 
 AND FATHER
 
 INTRODUCTION 
 
 It seems to me that what is needed at the 
 present time for the stabilizing of our indus- 
 trial situation is not a British Plan, or a French 
 Plan, or a Russian Plan, but an American Plan, 
 in harmony with our institutions, our laws, our 
 customs and our outlook generally. I am not 
 a Socialist. I am not a Syndicalist. On the 
 other hand, I am convinced that the present 
 state of industrial organization cannot last, 
 that it ought not to last; moreover, that it will 
 not be permitted to last. Some change must 
 come about. How shall it come about? 
 What is the next step? How extensive is the 
 change to be ? 
 
 I cannot escape the leanings of my training 
 as a lawyer. I believe with Signor Orlando, 
 the Italian Premier, in what he said in sup- 
 porting the resolution for a League of Nations 
 at the Quai d'Orsay on January 25th, 1919: * 
 
 1 See New York World, February 2, 1919. Editorial Sec- 
 tion, p. 3.
 
 Introduction 
 
 "The principle of law is not only the principle of 
 protection and of justice against violence it is the 
 form guaranteed by the state of what is a vital prin- 
 ciple to humanity social cooperation and solidarity 
 among men." 
 
 If this "principle of social cooperation" is to 
 be put into a League of Nations in order to 
 insure "solidarity among men," as ^vell as 
 "protection and of justice against violence," 
 the same principle must be put into industry. 
 Employers and workers alike must come to it. 
 Shall they come to it by a process as expen- 
 sive as it cost the world to arrive at a state of 
 international reason and law, or shall they 
 profit by experience ? 
 
 It is my earnest hope that the analogies and 
 the definite experiences herein put forth will 
 help to save our country from a crisis which I 
 believe to be as imminent as was the European 
 War five years ago, and that the enlightened 
 leaders of labor and of management, as well 
 as capital, will find therein some suggestion for 
 a basis of cooperation. 
 
 February I, 1919.
 
 AN 
 AMERICAN LABOR POLICY 
 
 THE radical does not like the words "law and 
 order." It is too suggestive of the police or 
 the military in a time of strike or revolution. 
 The Syndicalist of the Sorel type regards it as 
 the final word in the scheme of the capitalist 
 class to enslave the proletariat. On the other 
 hand, it has been only too frequently used by 
 reactionary employers to couch in respectable 
 language that "quick kind of justice" which 
 applies lynch law to "unwelcome foreigners." 
 Of course, in its right sense the term covers 
 something of the very essence of democracy. 
 "What we seek," said President Wilson in his 
 Mount Vernon address, "is the reign of law, 1 
 based upon the consent of the governed and 
 sustained by the organized opinion of man- 
 
 1 Italics ours. 
 
 I
 
 2 American Labor Policy 
 
 kind." It is the antithesis of anarchy. With- 
 out it no democracy can exist, national or in- 
 ternational. "If there was ever a time," 
 writes Margaret Sherwood, 1 when the world 
 had need of a realization that government 
 rests upon enduring allegiance to law, that 
 a lasting faith should guide conduct from 
 day to day, from year to year, that deci- 
 sions of right and wrong should cover more 
 than the single instance, it is now, in face 
 of the unthinking opportunism that has gov- 
 erned American life in recent years." The 
 past four years have been devoted to produc- 
 ing international order, to converting interna- 
 tional anarchy into international law, to making 
 international law a matter not of mere aca- 
 demic theory but of world practice. In No- 
 vember of 1916 the writer indulged himself 
 to the extent of intimating that it would seem 
 like "no vain prophecy to forecast that if the 
 sentiment now behind the League to Enforce 
 
 1 "For Democracy," the Atlantic Monthly, October, 1918, 
 P- 517.
 
 Industrial Law 3 
 
 Peace should prevail and the outcome of the 
 great international war should be the inven- 
 tion of new mechanism for making reason tri- 
 umphant in international relations, we shall 
 witness a rapid creation of institutions for 
 subordinating industrial conflict to a reign of 
 law." * This was said upon the basis of some 
 ten years' contact with the industrial problem. 
 It is perhaps not too hopeful now to say that by 
 the time this present material will appear in 
 print, some new mechanism for making rea- 
 son triumphant in international relations will 
 be in operation. Already the signs of the 
 times indicate that, in the determination and 
 fixing of industrial relations, the sound com- 
 mon sense of the American people is set- 
 ting its face like flint against every effort 
 to substitute violence for reason. To convert 
 industrial anarchy into industrial law is the 
 next great task of civilization. And to the 
 
 1 Address before the Academy of Political Science in the 
 city of New York. Proceedings of the Academy of Political 
 Science in the city of New York for January, 1917, Vol. VII, 
 No. i.
 
 4 American Labor Policy 
 
 extent only that lawyers understand the prob- 
 lem, take account of all the factors involved, 
 and present a real and constructive program 
 will their profession be permitted to share in 
 the task. Very little has been done by our 
 profession in this field. "Most of the common 
 law" in this field, writes Freund, 1 "has devel- 
 oped in that atmosphere of indifferent neutral- 
 ity which has enabled courts to be impartial 
 but also keeps them out of touch with vital 
 needs." The problem has been too often con- 
 sidered "as if it concerned abstract relations 
 between convertible human personalities, while 
 it was a problem concerning industry and a 
 class." The time has come for our profession 
 to awaken from its slumbers. 
 
 THE PHILOSOPHY OF VIOLENCE 
 
 "If a Democracy," says Maine, "were to al- 
 low a portion of the multitude of which it con- 
 
 1 Ernst Freund: "Standards of American Legislation," p.
 
 Philosophy of Violence 5 
 
 sists to set some law at defiance which it hap- 
 pens to dislike it would be guilty of a crime 
 which hardly any other virtue could redeem, 
 and which century upon century might fail to 
 repair." 1 Graham Wallas, in "The Great So- 
 ciety," calls this the philosophy of the "habit 
 philosophers," and regards it as unsafe for us 
 "to treat Habit as second nature or as a self- 
 sufficient basis for social life." 2 Accordingly, 
 the enlargement of scale "which makes Habit 
 increasingly necessary in the Great Society, 
 increases also the necessity of criticising and, 
 from time to time, abandoning existing 
 habits." 3 And Wallas uses as an illustration 
 the practice of modern horticulturists, "who 
 propagate millions of fruit trees or potatoes 
 from cuttings, require the periodical produc- 
 tion of new varieties from actual seeding" so 
 that "in the modern world of habit and repeti- 
 tion we have learnt to attach a new value to the 
 man who goes back to his first-hand im- 
 
 1 Sir Henry Maine : "Popular Government," p. 64. 
 
 2 P. 78. 
 
 8 P. 81. Italics ours.
 
 6 American Labor Policy 
 
 pulses." With this necessity for preventing 
 our becoming the slaves of our habits and for 
 an enlarged freedom to change them, is Society 
 to adopt the method of nervous shock or culti- 
 vation of new habits by gradual change ? The 
 advocates of violence take one ground; we take 
 another. Like good lawyers, let us consider 
 the strength of our antagonist's argument, in 
 order that we may the better present our own. 
 Sorel says : "We cannot censure too severely 
 those who teach the people that they ought to 
 carry out the highly idealistic decrees of a 
 progressive justice." 2 Again: "Workmen 
 quickly perceive that the labour of conciliation 
 or of arbitration rests on no economico-judicial 
 basis, and their tactics have been conducted 
 instinctively perhaps in accordance with this 
 datum." Again: "If revolutionary syndi- 
 calism triumphs, there will be no more brilliant 
 speeches on immanent Justice, and the parlia- 
 mentary regime, so dear to the intellectuals, 
 
 1 Pp. 8r, 82. 
 
 2 Georges Sorel : "Reflections on Violence," p. 122. 
 s ldem., p. 64.
 
 Philosophy of Violence J 
 
 will be finished with it is the abomination of 
 desolation ! We must not be astonished, then, 
 that they speak about violence with so much 
 anger." Sorel is to the philosophy of indus- 
 trial violence what Treitschke and Bernhardi 
 were to the philosophy of international vio- 
 lence. There is but one justice, and that is the 
 justice of power. Accordingly, the working- 
 men should seek to gain power in order that 
 they may be the sole administrators of justice. 
 These views have recently been expressed by 
 Lenine in his revolutionary program for Swit- 
 zerland. 2 Lenine's instructions to his follow- 
 ers in conducting a strike movement contain 
 this: "The best means of dragging conces- 
 sions from the bourgeoisie is not that of trans- 
 actions or arrangements touching their inter- 
 ests or their prejudices, but the organisation 
 and the preparation of the revolutionary strug- 
 gle of the masses against the bourgeoisie. 
 Thus we may be certain that the more wide- 
 
 1 Idem., p. 19. 
 
 2 See the New Europe, 24 October, 1918, Vol. IX, No. 106, 
 P. 42.
 
 8 American Labor Policy 
 
 spread our propaganda the wider will be the ex- 
 tent of the public, which we may be able to 
 persuade of the necessity for this progressive 
 tax, and the greater will be the anxiety of the 
 bourgeoisie to make concessions, and we shall 
 profit by each one of these concessions, be it 
 never so small, to extend and strengthen our 
 struggle for the integral expropriation of the 
 bourgeoisie." l The infamies to which this 
 philosophy has gone are described in an article 
 entitled "The Russian Terror," published in 
 the Frankfurter Zeitung of September 27th, 
 and dispatched from Moscow September loth 
 by its correspondent, Herr Alfons Paquet. 2 
 The French Revolution in the worst days of its 
 reign of terror was a mild family quarrel com- 
 pared with the infamies to which Lenine, Trot- 
 zky and their confederates have lowered them- 
 selves in the conduct of their depredations. 
 Neither the small families living in lodgings 
 nor the rich in the great boulevards are spared. 
 
 1 See the New Europe, 24 October, 1918, Vol. IX, No. 106, 
 
 P- 43- 
 
 2 Idem., p. 44.
 
 Philosophy of Violence 9 
 
 Families with small children have to pass the 
 night in the street. In certain houses only pi- 
 anos, pictures and clocks are requisitioned by 
 the Evacuation Committees for their clubs. 
 Says one of the leaders: "We must get into 
 our hands not only all means of production, but 
 also all the personal property of the bourgeoisie 
 for all this only serves as a weapon against 
 the Proletariat." And Moscow has been made 
 well aware that the words are not mere threats. 
 The chief office of the Special Commission is 
 installed in a house belonging to the "Russian 
 Insurance Company" in the Lubianka, and 
 passes sentences of life and death on those who 
 are arrested. Factory managers, house own- 
 ers, business men, many of them over seventy, 
 are arrested and held as hostages to be shot 
 immediately should any further attempts be 
 made on the lives of members of the Soviet 
 Government. There is scarcely a family left 
 in the whole of Moscow which has not suf- 
 fered from this terrible Red Terror. In broad 
 daylight money and goods are stolen in the
 
 IO American Labor Policy 
 
 open streets by armed hordes. One section 
 of a decree of the Moscow Soviet contains the 
 following: "Until the instruction as to the 
 confiscation of household furniture, with a 
 view to its proper division among the work- 
 men, is confirmed, the furniture of requisi- 
 tioned houses is merely subject to inventory 
 and registration." Like the French Revolu- 
 tion, the Russian Revolution was a just and 
 holy revolt of the people against the monarchy 
 and the autocracy. In its beginning it was a 
 moral reaction against wrong. All over Eu- 
 rope the French Revolution was hailed as the 
 dawn of a new era of righteousness, but when 
 the subterranean forces, the elementary pas- 
 sions of men, were let loose, there followed 
 the terrible carnival of blood of the Reign of 
 Terror. Similarly, at the time of the peasant 
 uprising in the sixteenth century, the original 
 demands of the people were couched in im- 
 pressive, simple and modest terms, and yet 
 there never was "a more shocking travesty of 
 
 1 The New Europe, 24 October, 1918, p. 47.
 
 Philosophy of Violence 1 1 
 
 humanity than the scenes enacted after the 
 Peasant Revolution had started." 
 
 However just the cause, however righteous 
 the indignation, it is the lesson of all history 
 that possession of unrestrained power leads 
 ultimately to the destruction of personal liberty 
 and the defeat of the very cause which altru- 
 istic agencies of power sought to promote. 
 
 The philosophy of imperialism which led to 
 Germany's downfall is for the time being trans- 
 ferred to the Sorels, the Lenines and the 
 Trotzkys. Trotzky ("The Bolsheviki and 
 World Peace") condemns the bourgeois spirit 
 of "law and order" as reactionary. "If the 
 Social Democracy sets national duties above 
 its class duties," says he, "it commits the great- 
 est crime not only against Socialism, but also 
 against the interest of the nation as rightly and 
 broadly understood." 2 This philosophy, then, 
 represents not the earnest effort of men to se- 
 cure a broader freedom for all the people, but a 
 
 1 Felix Adler : "The Punishment of Individuals and of Peo- 
 ples," the Standard, December, 1918, p. 80. 
 
 2 P. 171. Italics ours.
 
 12 American Labor Policy 
 
 sheer attempt to gather power in their hands 
 to be used without restraint. It is the antith- 
 esis of stable organization and of all law, 
 democratic or otherwise. 
 
 The red flag of the Russian Bolshevik and 
 of the French Syndicalist, therefore, means 
 something more than the destruction of capital 
 or the transference of property from one group 
 of society to another. It means destruction 
 of law and the autocratic wielding of power 
 by mob leaders. There is little danger that 
 this philosophy will go far in our own country. 
 Some of the boys in uniform have already in- 
 dicated how they will react to it. But should 
 the disease germ spread, like the influenza the 
 ravages of the epidemic will be terrible before 
 it is checked. It is a sensible warning which 
 John D. Rockefeller, Jr., sounded at Atlantic 
 City, that upon the heads of those leaders 
 "who refuse to reorganize their industrial 
 households in the light of the modern spirit, 
 will rest the responsibility for such radical and 
 drastic measures as may later be forced upon
 
 The Modern Spirit 13 
 
 industry if the highest interests of all are not 
 shortly considered and dealt with in a spirit 
 of fairness." 
 
 THE MODERN SPIRIT 
 
 What is this modern spirit to which Mr. 
 Rockefeller refers? In the great Mogul 
 Steamship Case, Lord Chief Justice Coleridge 
 permitted himself to say: "It must be remem- 
 bered that all trade is and must be in a sense 
 selfish; trade not being infinite, nay, the trade 
 of a particular place or district being possibly 
 very limited, what one man gains another loses. 
 In the hand to hand war of commerce . . . 
 men fight on without much thought of others, 
 except a desire to excel or to defeat them. 
 Very lofty minds, like Sir Philip Sidney with 
 his cup of water, will not stoop to take an 
 advantage, if they think another wants it more. 
 Our age, in spite of high authority to the con- 
 trary, is not without its Sir Philip Sidneys ; but 
 these are counsels of perfection which it would
 
 14 American Labor Policy 
 
 be silly indeed to make the measure of the 
 rough business of the world as pursued by 
 ordinary men of business." In the same case 
 Lord Justice Fry said: "I know no limits 
 to the right of competition in the defendants 
 I mean, no limits in law. I am not speak- 
 ing of morals or good manners. To draw a 
 line between fair and unfair competition, be- 
 tween what is reasonable and unreasonable, 
 passes the power of the Courts. Competition 
 exists when two or more persons seek to 
 possess or enjoy the same thing: it follows 
 that the success of one must be the failure of 
 another and no principle of law enables us to 
 interfere with or to moderate that success or 
 that failure so long as it is due to mere com- 
 petition." And Lord Justice Bowen said: 
 "To say that a man is to trade freely, but that 
 he is to stop short at any act which is cal- 
 culated to harm other tradesmen, and which is 
 designed to attract business to his own shop, 
 
 1 21 L. R. Q. B. D. 544, at 553~4- 
 223 L. R. Q. B. D. 598, at 625-6 (i
 
 The Modern Spirit 15 
 
 would be a strange and impossible counsel of 
 perfection" and that "To attempt to limit Eng- 
 lish competition in this way would probably 
 be as hopeless an endeavour as the experiment 
 of King Canute." * This may be fairly de- 
 scribed in the language of The Journal of 
 Commerce of New York as "the old standards 
 of the industrial Bourbons of past years" 
 which are "out of date and cannot be again 
 maintained or enforced." 2 We lawyers have 
 been very fond of saying that ours is a pro- 
 fession, not a business ; that our vocation is not 
 to make money, but to serve, our reward 
 remaining secondary always to the perform- 
 ance of the social service to which we are 
 dedicated. Mr. Rockefeller is almost pro- 
 fessionalizing industry when he says : ".-.... 
 shall we adopt the modern viewpoint, which 
 regards industry as in the nature of social 
 service, as well as a revenue-producing proc- 
 ess for capital and labor?" And we must 
 
 123 L. R. Q. B. D. 598, at 615-16 (1889). 
 2 December 10, 1918.
 
 16 American Labor Policy 
 
 agree that he is thoroughly sound when he says 
 that "the day has passed when the conception 
 of industry as primarily a matter of private 
 interest can be maintained. To cling to it is 
 only to lay up trouble for the future and to 
 arouse antagonism. In the light of the pres- 
 ent, every thinking man must adopt the view 
 that the purpose of industry is to advance so- 
 cial well-being rather than primarily to afford 
 a means for the accumulation of individual 
 wealth." It is significant that on the very day 
 that Mr. Rockefeller's address was delivered 
 at Atlantic City, the Committee on Industrial 
 Problems and Relations of the Chamber of 
 Commerce in New York struck almost iden- 
 tically the same note as did Mr. Rockefeller, 
 urging that "wage-earners as a class must be 
 given an opportunity to count as men and 
 women in the vital management of their in- 
 dustries in whatever position they may be 
 qualified to count," and the men who are re- 
 turning from active campaigns against the 
 enemy "will not be content to relapse to a posi-
 
 The Modern Spirit 17 
 
 tion where they are only a number on a time 
 sheet or a pay-roll. Nor is it right or just that 
 they should be asked to do so." When the 
 War Emergency and Reconstruction Confer- 
 ence at Atlantic City rose to its feet and unani- 
 mously adopted (substantially) the ten articles 
 of Mr. Rockefeller's creed, 1 the chairman of 
 
 1 1. I believe that labor and capital are partners, not ene- 
 mies ; that their interests are common interests, not opposed, 
 and that neither can attain the fullest measure of prosperity 
 at the expense of the other, but only in association with the 
 other. 
 
 2. I believe that the community is an essential party to in- 
 dustry, and that it should have adequate representation with 
 the other parties. 
 
 3. I believe that the purpose of industry is quite as much to 
 advance social well-being as material well-being and that in the 
 pursuit of that purpose the interests of the community should 
 be carefully considered, the well-being of the employes as 
 respects living and working conditions should be fully guarded, 
 management should be adequately recognized and capital 
 should be justly compensated, and that failure in any of these 
 particulars means loss to all four. 
 
 4. I believe that every man is entitled to an opportunity to 
 earn a living, to fair wages, to reasonable hours of work and 
 proper working conditions, to a decent home, to the oppor- 
 tunity to play, to learn, to worship and to love, as well as to 
 toil, and that the responsibility rests as heavily upon industry 
 as upon government or society, to see that these conditions 
 and opportunities prevail. 
 
 5. I believe that industry, efficiency and initiative, wherever 
 found, should be encouraged and adequately rewarded and
 
 1 8 American Labor Policy 
 
 the meeting was so pleased with the spirit thus 
 shown that he said: 'That's fine business." 
 Realizing the importance of the action about 
 
 that indolence, indifference and restriction of production 
 should be discountenanced. 
 
 6. I believe that the provision of adequate means for uncov- 
 ering grievances and promptly adjusting them, is of funda- 
 mental importance to the successful conduct of industry. 
 
 7. I believe that the most potent measure in bringing about 
 industrial harmony and prosperity is adequate representation 
 of the parties in interest ; that existing forms of representa- 
 tion should be carefully studied and availed of in so far as 
 they may be found to have merit and are adaptable to the 
 peculiar conditions in the various industries. 
 
 8. I believe that the most effective structure of representa- 
 tion is that which is built from the bottom up, which includes 
 all employes, and, starting with the election of representa- 
 tives in each industrial plant, the formation of joint works 
 committees, of joint district councils and annual joint confer- 
 ences of all the parties in interest in a single industrial cor- 
 poration, can be extended to include all plants in the same 
 industry, all industries in a community, in a nation and in the 
 various nations. 
 
 9. I believe that the application of right principles never 
 fails to effect right relations; that the letter killeth and the 
 spirit maketh alive ; that forms are wholly secondary while 
 attitude and spirit are all important, and that only as the par- 
 ties in industry are animated by the spirit of fair play, justice 
 to all and brotherhood, will any plans which they may mutu- 
 ally work out succeed. 
 
 10. I believe that that man renders the greatest social serv- 
 ice who so cooperates in the organization of industry as to 
 afford to the largest number of men the greatest opportunity 
 for self-development and the enjoyment by every man of those 
 benefits which his own work adds to the wealth of civilization.
 
 The Modern Spirit 19 
 
 to be taken, before he called for the vote he 
 said : "The action you men are taking here is 
 more significant than many of you realize. 
 Your action here will go farther than you 
 think, and the benefit of it will be greater than 
 you believe." No one will be so bold as to 
 believe that acceptance of general principles or 
 even the adoption of an industrial creed means 
 that the industrial millennium is in sight. But 
 it betokens a change in philosophy, a change in 
 attitude. It means that so far as the leaders 
 of industry are concerned, the old Bourbonism 
 is dead, or soon will be. Under the title 
 "Changing Economic Viewpoints," a promi- 
 nent Trust Company in New York early in 
 November presented in its bulletin "certain 
 tendencies of the time, both here and abroad." 
 In this very interesting document, it says that 
 the theory of economic independence "was 
 based upon a tacit acceptance of the German 
 doctrine that a state of commerce is a state of 
 war, a doctrine which is in turn based upon the 
 false and outworn theory that every exchange
 
 2O American Labor Policy 
 
 of goods or services must be to the disadvan- 
 tage of one of the parties concerned." "The 
 new conception of what men owe to themselves 
 and to each other," it says, "which has been 
 fostered by the common sufferings and un- 
 dertakings of the war, is permeated by the idea 
 of service. That idea is expressed in a host of 
 men drawn from every corner of the world to 
 put down once and for all the injustices of a mili- 
 tary autocracy. It runs through the thought 
 of all those who stand behind these arm- 
 ies. It is the very heart of the ideal for which 
 we fight. Whatever terms of peace are drawn 
 the animating purpose of them will be service. 
 And it is upon a basis of service that the en- 
 during plans of any nation for reconstruction 
 will be grounded." This in a Trust Company 
 bulletin !
 
 Organization in Industry 21 
 
 THE NECESSITY FOR LEADERSHIP AND OR- 
 GANIZATION IN INDUSTRY 
 
 Even Lenine recognizes that the proletariat 
 imperialism cannot be secured without the aid 
 of "the biggest of the bourgeois specialists" 
 and that "without the direction of specialists of 
 different branches of knowledge, technique and 
 experience, the transformation toward Social- 
 ism is impossible, for Socialism demands a 
 conscious mass movement toward a higher 
 productivity of labor in comparison with capi- 
 talism and on the basis which has been at- 
 tained by capitalism." 1 It will, under his 
 regime, be necessary to "keep accurate and 
 conscientious accounts; conduct business eco- 
 nomically; do not loaf; do not steal; maintain 
 strict discipline at work." 1 And Dr. Anna In- 
 german, a Socialist who had been seven months 
 in Russia, is reported to have said: "I feel 
 that only the genius of capitalism can build up 
 
 1 Nikolai Lenine : "The Soviets at Work."
 
 22 American Labor Policy 
 
 Russia economically and make it strong and 
 virile and healthy. After capitalism has done 
 its work, Russia will be prepared for Social- 
 ism." When our country found itself con- 
 fronted with the task of quickly mobilizing 
 its productive powers, it called upon these 
 "bourgeois" specialists, the Schwabs, the 
 Baruchs, the Ryans, the Stettiniuses, the 
 Goethals all the men of trained specializa- 
 tion, who knew what order, discipline and or- 
 ganization were like, and in addition possessed 
 the qualities of driving leadership. 
 
 Back of the motors humming, 
 
 Back of the belts that sing, 
 Back of the hammers drumming, 
 
 Back of the cranes that swing, 
 There is the eye which scans them 
 
 Watching through stress and strain, 
 There is the Mind which plans them 
 
 Back of the brawn, the Brain! 
 
 Might of the roaring boiler, 
 
 Force of the engine's thrust, 
 Strength of the sweating toiler, 
 
 Greatly in these we trust. 
 But back of them stands the Schemer,
 
 Organization in Industry 23 
 
 The Thinker who drives things through ; 
 Back of the Job the Dreamer 
 
 Who's making the dream come true ! 1 
 
 It is not the birth of a man which makes his 
 worth. It is what he is and what he can make 
 of himself. The genius of Foch is the combi- 
 nation of those rare natural qualities of leader- 
 ship coupled with infinite study and training. 
 The Haigs, the Petains and the Pershings were 
 not the product of four months' training in an 
 army camp. It does not detract from the ad- 
 mirable qualities displayed by our American 
 soldiers to say that not one of them, drafted 
 under the Selective Service Regulations, could 
 have become a Pershing within the limited time 
 available. The future industrial organization, 
 it is conceded on all hands, must be highly pro- 
 ductive. "What the nation needs is undoubt- 
 edly a great bound onward in its aggregate 
 productivity," says the British Labor Party. 
 Our Secretary of Labor, the former Vice-Pres- 
 ident of the American Federation of Labor, 
 
 i Berton Braley : "The Thinker."
 
 24 American Labor Policy 
 
 says: "The employer and the employee have 
 a mutual interest in securing the largest pos- 
 sible production with a given amount of la- 
 bor." 1 Under the seal of the United States 
 Department of Labor, during the war circu- 
 lars were distributed like the following: "Get 
 the habit of doing things right. This will 
 mean: Greater Production, Less Waste, In- 
 creased Earnings." "BOOT STRAPS. We 
 don't try to pull ourselves up by our boot straps 
 do we ? Then why try to get richer by pro- 
 ducing less? However much we may want 
 better ways of distribution, we must first have 
 Greater Production in order to win this war. 
 By the further development of those qualities 
 of enterprise, initiative, originality, and hustle, 
 characteristic of the American people, labor 
 can earn an additional debt of gratitude from 
 our country." "Our Children! To win this 
 war we all must do our best regardless of 
 profit. Production is the big thing. This ap- 
 plies to wage earners as well as employers. 
 
 1 The Nation's Business, October, 1917, p. 66.
 
 Constitutionalizing Industry 2$ 
 
 We cannot start by stopping; we cannot mul- 
 tiply by dividing; we must forget our preju- 
 dices and drive ahead." These injunctions, 
 applied in war times, are equally applicable in 
 times of peace. Those who desire "better 
 ways" of distribution must first find ways of 
 greater production. 
 
 Certainly to stop the wheels of production by 
 strikes or lockouts or industrial revolution in 
 order to secure a better order of distribution 
 can only be justified if there is no other way. 
 
 THE EFFORT TO CONSTITUTIONALIZE 
 INDUSTRY 
 
 In the reports of the Commission of In- 
 quiry into Industrial Unrest in Great Britain, 1 
 arguing in support of a system for organizing 
 industry in which organized employees and 
 organized employers practically control the 
 management of the industry, one of the groups 
 of commissioners says : "If we may adopt the 
 
 1 Bulletin of the U. S. Bureau of Labor Statistics No. 237.
 
 26 American Labor Policy 
 
 language of political philosophy it would give 
 industry a large measure of constitutional gov- 
 ernment in place of what in theory was an auto- 
 cratic and absolutist system, but has long since 
 ceased to be so in practice." The experi- 
 ments of the Colorado Fuel & Iron Company, 
 the Standard Oil Company, the Protocol in the 
 garment industry, 2 are all experiments in the 
 direction of "constitutionalizing industry." It 
 will be conceded that when it is proposed to 
 establish by law a method of organization of 
 industry which is to provide a legal form of 
 government in each industry, the knowledge 
 and experience of the lawyer should be of serv- 
 ice. But here a word of caution. The train- 
 ing of the lawyer does not ordinarily fit him 
 for the task, for no scheme of organization of 
 industry can survive which does not take ac- 
 count of all the business, social and economic 
 factors, and it is rare that the lawyer is 
 equipped in all of these fields. To the extent, 
 
 I P. 170. 
 
 2 "Law and Order in Industry," by the writer.
 
 Morale in Industry 27 
 
 however, that he has had experience in these 
 fields and in all of them, may he safely trust 
 his own judgment, and even then he may trust 
 his judgment but little because the factors are 
 so numerous and so complex. If he can suc- 
 ceed, however, in correlating all of these fac- 
 tors, he will have in hand "the facts of the 
 case" and is then ready to apply principles. 
 Obviously, it will be impossible to present 
 within the limits of this book all of the facts, 
 and there is the certain risk that in the state- 
 ment of some facts some others may be over- 
 looked. But we should at the threshold be 
 certain to take cognizance of dangers we must 
 avoid. 
 
 MORALE IN INDUSTRY 
 
 The intangible psychological factor of 
 morale was reckoned very high by Napoleon in 
 his day. "In war," said he, "the moral is to 
 the physical as three to one." We in our day 
 know that the proportion is greater. The
 
 28 American Labor Policy 
 
 chart kept by the Secretary of War, showing 
 the decline and elevation of morale in Ger- 
 many and its bearing upon the success and 
 failure of the German Army, showed that 
 there was almost immediate reaction upon the 
 fighting at the front of the rise or fall of the 
 morale back of the front, and we know that 
 Cantigny, Chateau-Thierry, Belleau Wood 
 and the Argonne Forest were made possible for 
 the Allies only through the splendid morale of 
 the American Army. The Y. M. C. A. work, 
 the Y. W. C. A. work, the Jewish Wel- 
 fare Board, the Salvation Army all these 
 agencies were fostered and encouraged by our 
 Government as military agencies because of 
 their value in keeping up the morale of our 
 men, and the circulars from which we have 
 already quoted were part of the well planned 
 work of the Department of Labor to keep 
 up the morale of the producing force of 
 our country during the war. Our difference 
 with the enemy upon this subject of morale was 
 not that he disagreed with us concerning its
 
 Morale in Industry 29 
 
 importance, but that his methods for endeavor- 
 ing to destroy our morale, as well as for pre- 
 serving his own, seemed to be grotesquely un- 
 intelligent and proved to be psychologically 
 unsound. Much has been learned through the 
 war of the connection between mental attitude 
 and exertion of physical power. In the meth- 
 ods for preserving morale to be employed many 
 differences of opinion have been developed. 
 Mr. Fosdick has told the story 1 of the differ- 
 ences that arose with the French in the fight 
 against venereal disease. The French be- 
 lieved in "toleration" and "regulation." They 
 had for generations licensed brothels and reg- 
 istered prostitutes. We were for "absolute 
 continence" and we won out. The result of 
 the experiences of the American officials was 
 that they were able to convince the French 
 Government that what Abraham Flexner 
 called "abolition" as distinguished from "regu- 
 lation" is the only effective mode of combating 
 
 1 Raymond B. Fosdick : "The Fight Against Venereal Dis- 
 ease." The New Republic, November 30, 1918.
 
 30 American Labor Policy 
 
 this age-long evil. And it is only fair to the 
 French to say that this represents a change in 
 attitude upon the part of our own military lead- 
 ers. General Pershing frankly confesses that 
 he has completely changed his policy regarding 
 camp followers which he followed in his march 
 into Mexico two years ago. "The cause of his 
 taking at that time a course which he now re- 
 grets was not any lack of revulsion in his own 
 soul, but merely the dominance of the old iron- 
 clad army tradition which taught that certain 
 evils are inevitable in army life. To-day with 
 larger outlook General Pershing stoutly re- 
 fuses to regard any wrong thing as inevitable 
 in the Army or anywhere else. He does not 
 hesitate to acknowledge to intimate friends a 
 complete reversal of attitude on this subject 
 since his Mexican experience." * With these 
 lessons fresh in mind of morale affecting the 
 putting forth of material strength, are we not 
 obliged now to consider afresh, disregarding 
 
 1 Literary Digest, November 16, 1918, quoting from the Con- 
 gregationalist, Boston.
 
 Morale in Industry 31 
 
 all our age-old prejudices, the relationship of 
 morale to productivity in industry? If we 
 think this through clear to the end, we shall 
 have a social revolution. We shall turn indus- 
 try upside down and inside out ; but we shall do 
 it in orderly fashion, and we will no more dis- 
 turb the processes of industry in the reorgan- 
 ization than we disturbed the fighting of our 
 men while introducing the newer attitude to- 
 ward their morale. Space will not permit us 
 to go into all the details of this phase of our 
 problem. We shall pass rapidly over them. 
 First of all, we shall say, of course, that no 
 man or woman will be socially productive un- 
 less he or she is in good physical health. We 
 shall say, of course, the "living wage," what- 
 ever that may involve. We shall say, of 
 course, proper housing conditions. We shall 
 say, of course, continuous employment. How 
 can a man do his best work if he lives con- 
 stantly in dread that his family may not have 
 enough to eat? We shall prescribe clean and 
 sanitary factories, and, we shall treat the
 
 32 American Labor Policy 
 
 worker, of course, as we have treated the sol- 
 dier, as a human being. "What is wanted," 
 said the British Commission on Industrial Un- 
 rest, "is a new spirit; a more human spirit, one 
 in which economic and business considerations 
 will be influenced and corrected, and, it is 
 hoped, will be eventually controlled by human 
 and ethical considerations. To bring this 
 about it must be realized that the main cause 
 of unrest lies deeper than any merely mate- 
 rial consideration, that the problem is funda- 
 mentally a human and not an economic prob- 
 lem. Theoretically, industry is carried on by 
 the cooperation of capital and labor ; in practice 
 it is carried on by a system of checks and bal- 
 ances, one in which the equilibrium is easily 
 upset by a little additional momentum on one 
 side or the other. It often appears as if it 
 were the resultant of the constant conflict of 
 forces rather than of a cooperative effort." 
 The New York Chamber of Commerce Com- 
 
 1 Bulletin of the U. S. Bureau of Labor Statistics No. 237, 
 p. 169.
 
 Morale in Industry 33 
 
 mittee on Industrial Problems and Relations 
 says: "It has been proven over and over 
 again, in industry, that irrespective of such 
 conditions as rate of wages paid, as cost of 
 management, or as rates of interest or other 
 return on capital, the condition of hearty co- 
 operation outweighed all the others. It is a 
 by-word of production that the cheapest and 
 best product is compatible with the largest 
 earnings for wage-earners, the highest salaries 
 for managers, and the largest profits for capi- 
 talists, only providing that all three elements 
 fully cooperate. In this we find the moral fac- 
 tor of manufacturing which outweighs all 
 the physical factors." 1 A step forward has 
 been taken by the British Labor Party in its 
 clear recognition of the fact that the workers 
 of the world are not merely the manual work- 
 ers, but the "brainworkers" and the various 
 professional men. In opening the doors to the 
 "clerk," the teacher, the doctor, the minister of 
 religion, the British Labor Party "claims the 
 
 1 Italics ours.
 
 34 American Labor Policy 
 
 support of four-fifths of the whole nation." 
 But still we suffer from the Aristotelian 
 philosophy that somehow or other there is a 
 clear division of human beings into laboring 
 and leisure classes. 1 As pointed out by John 
 Dewey, increasing political and economic 
 emancipation of the "masses" has affected edu- 
 cation. The development of a common school 
 system of education, public and free, "has de- 
 stroyed the idea that learning is properly a 
 monopoly of the few who are predestined by 
 nature to govern social affairs." Neverthe- 
 less it is true that there prevails very generally 
 the idea that "a truly cultural or liberal educa- 
 tion cannot have anything in common, directly 
 at least, with industrial affairs." 3 
 
 It is frequently said that, in the last analy- 
 sis, the progress of industry depends upon the 
 operation of economic laws; but precisely as 
 we have within the period of our own partici- 
 
 1 See Dewey : "Democracy and Education," chapter on 
 "Labor and Leisure." 
 
 2 Idem., p. 300. 
 *Idem., p. 301.
 
 Morale in Industry 35 
 
 pation in the war changed our attitude towards 
 licensed prostitution, we are changing with 
 lightning-like rapidity our conceptions of what 
 constitutes "economic law." The late Pro- 
 fessor Carleton H. Parker, in his paper "Mo- 
 tives in Economic Life" (read before the 
 Philadelphia meeting of the American Eco- 
 nomic Association), 1 pointed out that econo- 
 mists had speculated little on human motives; 
 that they had not been sufficiently curious 
 "about jhe great basis_pf fact which dynamic 
 and^behavioristic psychology jhas gathered to 
 illustrate the instinct stimulus to human ac- 
 tivity." 2 It is M'Dougall, the Oxford social 
 psychologist, who says that "It would be a libel 
 not altogether devoid of truth to say that the 
 classical political economy was a tissue of false 
 conclusions drawn from false psychological 
 assumptions." 3 We need not accept, for the 
 purposes of our discussion, the inventory of in- 
 
 American Economic Review, Vol. VIII, No. i (Sup- 
 plement), March, 1918. 
 
 2 P. 214. 
 
 3 P. 215.
 
 36 American Labor Policy 
 
 stincts made by Parker in the article to which 
 we refer, nor confine ourselves to the conclu- 
 sions of modern psycho-analysts like Freud 
 and Jung and Adler. There are certain com- 
 monplace and common-sense facts to which we 
 have blinded ourselves heretofore and which 
 it is vital, if we are to draw up a plan for the 
 constitutional government of industry, we take 
 account of in our reckoning. No pilot ever 
 steered ship upon the rocks with less care for 
 the sounding of the buoys than we should, if 
 we ignored the soundings that daily ring in our 
 ears. We know that the real incentive to 
 work is interest in the work, not the pay got 
 out of it. The production of a scholarly brief 
 gives the author greatest satisfaction not 
 through the drink and food and clothing which 
 he may purchase out of the fee received by way 
 of compensation, but in the sheer joy of intel- 
 lectual research and creative production. As 
 matter of fact, he is paid twice, once in the 
 joy of doing the work, and again in the coin 
 he receives. This element of interest is the
 
 Morale in Industry 37 
 
 factor of morale in productivity. There is no 
 Egyptian mystery to be dug from the tombs 
 in the every day fact that boys and girls prefer 
 to go into offices rather than into factories. 
 There is no office, law or business, so dull or 
 so stupid which is not more interesting for the 
 young messenger than the feeding of a ma- 
 chine in a factory. The bookkeeper does more 
 than keep track of accounts. Through his 
 trial and balance sheet he acquires an under- 
 standing of the entire business, its venture as 
 an enterprise the relationship of all its finan- 
 cial details to the total result. The salesman 
 has the interesting experience of travel and 
 contact with differing types of human nature 
 perhaps the most interesting of all human 
 experiences. The servant girls who braved 
 the rigor of stormy weather and became con- 
 ductorettes upon our street cars found in the 
 contact with new as well as with familiar faces 
 an interest more than compensatory for physi- 
 cal hardships. The acquisition of habits of 
 care and accuracy in the drawing of legal in-
 
 38 American Labor Policy 
 
 struments, knowledge of the forms, as well as 
 knowledge of the way in which actually to 
 practice law, is more likely to be acquired by 
 the stenographer and typewriter who later 
 takes up- the law than by the law clerk who 
 comes fresh from the university. It is this 
 interest in things going on and being done and 
 in process of creation that makes life worth 
 living. Professor Taussig caught this in "In- 
 ventors and Money-Makers." Says he: 
 "The moral teacher tells us we should do our 
 daily work with joy. The economist com- 
 monly tells us that it is an effort undergone 
 because compensated by wages or profits, a 
 'disutility/ a sacrifice. Underlying almost all 
 economic theory is the assumption that work 
 is an irksome thing, done for pay and in pro- 
 portion to pay." 1 And yet the Edisons in in- 
 dustry get their greatest joy out of "the fun 
 of it." "Every one of us is conscious of a 
 satisfaction in doing his work handily and 
 well, in seeing the product grow under his own 
 
 1 Pp. 55-56.
 
 Morale in Industry 39 
 
 hands." l Taussig very properly refers to the 
 modern organization of industry as tending to 
 "smother" this satisfaction "in a great and 
 probably growing proportion of men, a most 
 ominous aspect of our social and economic sys- 
 tem." 1 And in her recent little book, "Cre- 
 ative Impulse in Industry," Helen Marot also 
 concludes that the morale of industry is not 
 improved by the conception that the "only rea- 
 son a sane man can have for working" is "be- 
 ing paid off," or that "after he is paid off the 
 assumption is his pleasure will begin." 2 The 
 vice of the modern factory organization, she 
 says, lies in its destruction of "creative desire 
 and individual initiative as it excludes the 
 workers from participation in creative experi- 
 ence." 3 Nearly all labor union leaders accept 
 the older economic philosophy that work is 
 something to be endured in order to secure 
 leisure. "They desire a shorter work day 
 among other things so that there may be op- 
 
 1 P. 57- 
 
 2 P. 9. 
 
 3 P. 12.
 
 40 American Labor Policy 
 
 portunity for leisure and recreation," says 
 John P. Frey, editor of the International 
 Holders' Journal, writing of "The Ideals in 
 the American Labor Movement." 1 "They 
 desire to terminate each day's labor with suf- 
 ficient vitality left to enjoy the society of their 
 fellow men, to study and to better prepare 
 themselves for the problems which face them 
 as wage earners, to enjoy some of the blessings 
 which the Almighty has so bounteously spread 
 at every hand." 2 Thus labor unionist and 
 capitalist together conspire to secure general 
 acceptation of the doctrine of human conduct 
 that the less work you do and the more you 
 can make that pay, the better member of so- 
 ciety you are. Whatever work you do ac- 
 cording to this doctrine you do under com- 
 pulsion, in order that out of what you receive 
 you shall then be able to enjoy life. How can 
 such a philosophy of political economy increase 
 the productivity of a nation ? Does it not lead 
 
 1 The International Journal of Ethics, July, 1918. 
 
 2 Pp. 494-5.
 
 Morale in Industry 41 
 
 inevitably to constant effort to shorten the 
 hours of labor and to increase the compensa- 
 tion, regardless of the cost of production and 
 regardless of the cost of living following the 
 cost of production? Instead of eliciting the 
 interest of the worker in his work, we cultivate 
 a morale which detracts from his work and we 
 ourselves set myriads of examples by which 
 to confirm him in the tendency. The political 
 economy is the lazy man's political economy. 
 It is un-American, it is contrary to all our other 
 habits of thinking, and it is opposed to every 
 plank in every platform upon which we set out 
 to conduct the war. Not for a single instant 
 did we think of making either our soldier at the 
 front or our riveter in the shipyard a mere cog 
 in a war machine. We kept constantly before 
 him the aim and the purpose of the great cre- 
 ative task in which he was engaged and empha- 
 sized the contribution which he was to make. 
 We no more expected by emptying into their 
 hands the contents of pay envelopes our men to 
 risk their lives at the front or to put forth
 
 42 American Labor Policy 
 
 their best energies in the munitions plants 
 than we expected to win the war with paste- 
 board aeroplanes and paper shells. Are we 
 not rapidly coming to the conclusion that as 
 we discover the ethical conception of the sanc- 
 tity of sex relationship to be at one with the 
 utilitarian conception of sound, healthy sol- 
 diers, we shall likely discover that the ethical 
 conception of personal and human worth is at 
 one with the conception of sound industrial or- 
 ganization? But how else are we to conduct 
 a democracy wherein the determining policies 
 of the nation are the result of the judgments 
 and opinions of the majority? The demo- 
 cratic conception is that all men have personal 
 worth, that there is a dignity to the opinion of 
 every man. How can we expect emergence of 
 enlightened public opinion upon those matters 
 essential to a sound and well-ordered democ- 
 racy if the very processes of industry contract 
 the mind, destroy the creative instincts, and 
 lessen the growth of individual men and 
 women? If this conception of a new political
 
 Morale in Industry 43 
 
 economy resultant from a better understanding 
 of human nature is accepted by the industrial 
 leadership of our country, it means a social 
 revolution. In principle it was accepted at the 
 Atlantic City meeting by the War Emergency 
 Congress, and the presiding officer did right in 
 warning the business men present that they 
 might not immediately realize the consequences 
 of the doctrines to which they subscribed. 
 
 Nevertheless, no forward looking legal plan 
 is destined even to partial fruition unless it 
 starts with these fundamental considerations, 
 whether they be called political economy, sound 
 ethics, or modern psychology. In the light of 
 our military experience, they can best be de- 
 scribed as the factor of morale in industry. 
 
 If law is to be regarded not as the dull 
 science of established precedent, but also the 
 art of constructive social engineering, we 
 shall need always to keep in mind these factors 
 of our problem if we are to arrive at a sound 
 result.
 
 44 American Labor Policy 
 
 HIRING AT WILL THE RIGHT OF DIS- 
 CHARGE THE RIGHT TO STRIKE 
 
 THE INTEREST OF THE 
 
 COMMUNITY 
 
 The present legal relationship between em- 
 ployer and employee, especially in the fac- 
 tories, is one of "hiring at will" : that is to say, 
 the employee is free to leave when he chooses, 
 the employer is free to discharge when he 
 chooses. This is the legal situation. The eco- 
 nomic situation is perilous. Already men are 
 becoming aware of the fact that under this 
 arrangement the economic loss is tremendous. 1 
 Investigation by the New Jersey State Depart- 
 ment of Labor and Statistics of the cost of 
 unemployment to 2556 firms alone disclosed 
 a loss of $363,000,000 in one year. Not 
 only is this the cost in loss of output, but 
 
 1 See "Steadying Employment," Supplement to the Annals 
 of the American Academy of Political and Social Science, 
 May, 1916. See "Stabilizing Industrial Employment/' the An- 
 nals of the American Academy of Political and Social Science, 
 May, 1917. See also "The Problem of Labor Turnover," by 
 Paul H. Douglas, the American Economic Review, June, 1918.
 
 Hiring and Firing 45 
 
 managers are fast coming to realize that un- 
 employment or slack time is the chief cause of 
 the rapid shift of employees from shop to shop. 
 As one employer puts it: "We found that, 
 while our men could make $3 or $4 a day when 
 they worked, they rarely did because of the 
 time that was lost through slack orders, wait- 
 ing for changes in the dyes, etc. As a result, 
 they were dissatisfied and we couldn't hold our 
 best men." 1 Another puts the proposition 
 conversely : "We can keep our help and, inci- 
 dentally, get the best help of our class, not 
 because we pay a higher rate of wages for 
 as a matter of fact our rate is somewhat lower, 
 but because we guarantee our help steady 
 employment and our twenty-five years' repu- 
 tation bears out our claim." 1 Analysis of 
 the employment figures for one year in 
 fifty-seven Detroit plants disclosed that the 
 average turnover of employees was 252 per 
 cent. 2 In the Ford Company, from October, 
 
 1 "Steadying Employment," p. 45. 
 
 2 Boyd Fisher : "How to Reduce the Labor Turnover," the
 
 46 American Labor Policy 
 
 1912, to October, 1913, 54,000 men were hired 
 to maintain an average working force of 
 13,000 a labor turnover of 416 per cent, for 
 one year. Of course, the effect of unemploy- 
 ment upon the community is not confined to 
 the economic loss. It is the chief contributing 
 cause to conditions which make it necessary 
 to support charitable institutions and hospitals. 
 More than that, it is the disease-breeding germ 
 that leads to social insanity. Professor 
 Parker wrote before his death : * "The Amer- 
 ican I. W. W. is a neglected and lonely hobo 
 worker, usually malnourished and in need of 
 medical care. He is as far from being a 
 scheming syndicalist, after the French model, 
 as the imagination might conceive." Dis-con- 
 tinuity of employment is probably the chief 
 provocative cause of industrial unrest. A 
 large migratory working force "is" not only 
 "economically an intolerable waste" but "so- 
 
 Annals of the American Academy of Political and Social Sci- 
 ence, May, 1917, p. 14. 
 
 i'The I. W. W.," the Atlantic Monthly, November, 1917, p. 
 651, at p. 656.
 
 Hiring and Firing 47 
 
 dally it is a disintegrating element in society. 
 It signifies, too often, men without responsi- 
 bility of home or home-making, men possessed 
 of a feeling of injustice against lack of con- 
 tinuity of employment, serving as inflammable 
 material for beguiling agitators to work 
 upon." Let us turn for a moment to the 
 worker's point of view. The worker always 
 feels that the job belongs to him, after he has 
 been in it for any length of time. "The work- 
 ers," says Grant, "feel they have a property 
 right in the jobs they formerly held. That the 
 law holds they have no such right, and that 
 anyone who is willing to accept the conditions, 
 shall have a right to fill the jobs, without fear 
 of molestation, does not alter the situation in 
 the minds of the workers." 2 The British 
 Commissioners of Inquiry into Industrial Un- 
 rest for Wales and Monmouthshire, in their 
 
 1 Report of President Wilson's Mediation Commission, New 
 York Evening Post, February u, 1918. 
 
 2 Luke Grant : Report on The National Erectors' Associa- 
 tion and The International Association of Bridge and Struc- 
 tural Ironworkers. U. S. Commission on Industrial Rela- 
 tions, p. 109.
 
 48 American Labor Policy 
 
 recommendations, say that there are two prin- 
 ciples which appear to them to be fundamental, 
 one of which is "That every employee should 
 be guaranteed what we may call 'security of 
 tenure'; that is, that no workman should be 
 liable to be dismissed except with the consent 
 of his fellow workmen as well as his em- 
 ployer." Without accepting this statement 
 with all of its implications, it nevertheless indi- 
 cates the growing recognition of the fact that 
 "security of tenure" is one of the aims of the 
 worker. In such seasonal industries as the 
 garment industries, it proved to be the rock 
 upon which the attempt at "constitutionalizing 
 the industry" went to smash. 2 The free right 
 of the employer to discharge is undoubtedly 
 one of the most effective measures for main- 
 taining discipline in the factory when there 
 is an available surplus supply of labor. When 
 there is no surplus but instead a shortage of 
 labor, it is a blank cartridge. The experts 
 
 1 Bulletin of the U. S. Bureau of Labor Statistics No. 237, 
 p. 170. 
 
 2 See "Law and Order in Industry," by the writer.
 
 Hiring and Firing 49 
 
 who are now studying problems of employment 
 are giving a large part of their attention to the 
 matter of "hiring and firing." Too often the 
 foreman uses his power merely as a means of 
 discipline, or, as one large employer has put 
 it, "to keep the fear of God in their hearts." 
 The unsupervised authority of the foreman 
 contributes to the high labor turnover. Not 
 only does he bring in misfit help, who will soon 
 leave, and discharge needlessly, but his arbi- 
 trary exercise of power drives many away. 
 One of the largest employers of Philadelphia, 
 who works under the foreman system, says: 
 "I have time and again seen my foreman do 
 things that were absolutely cruel; and yet I 
 am powerless to prevent it." A large lace 
 manufacturer told the Philadelphia secretary 
 of the National Lace Weavers' Union: "I 
 have more strikes and labor disputes as a re- 
 sult of the foolish and arbitrary acts of some 
 foreman than any other cause." * But it is 
 safe to say that employers are hardly ready to 
 
 1 "Steadying Employment," p. 73.
 
 50 American Labor Policy 
 
 accept the suggestion of the Commissioners 
 from Wales that discharges should only be had 
 with the consent of fellow employees. When 
 the City Manager of Dayton recently disci- 
 plined an inspector of police upon serious 
 charges, the welfare association of the pa- 
 trolmen of Dayton insisted that the patrolmen 
 would resign in a body if the inspector did not 
 get a "square deal." At that time the City 
 Manager had already approved the dismissal 
 of the officer, and his appeal was in the hands 
 of the Civil Service Commission. This con- 
 duct on the part of the welfare association of 
 the police department resulted in the City Man- 
 ager issuing an order forbidding membership 
 in the association, upon the ground that it did 
 not really tend "to protect the public interests 
 and promote discipline in the department." 
 Similarly, the City Manager of Altoona, Penn- 
 sylvania, having suspended a captain in the 
 fire department, received notice from a com- 
 
 1 National Municipal Review, November, 1918, Vol. VII, No. 
 6, Total No. 32, p. 647.
 
 Hiring and Firing 51 
 
 mittee of the men that unless the captain was 
 granted pay for the period of his suspension, 
 they would leave the service. The orders 
 made by the Manager were issued upon the 
 recommendation made by the national under- 
 writers for improving the service and after 
 consultation with the chief of the bureau of 
 fire. 1 In the garment industry, after the clash 
 of 1915, the Council of Conciliation, consisting 
 of Dr. Felix Adler, Chairman, Louis D. Bran- 
 deis, Henry Bruere, George W. Kirchwey, 
 Charles L. Bernheimer and Walter C. Noyes, 
 found that "the principle of industrial effi- 
 ciency and that of respect for the essential 
 human rights of the workers should always be 
 applied jointly, priority being assigned to 
 neither. Industrial efficiency may not be sac- 
 rificed to the interests of the workers, for how 
 can it be to their interest to destroy the busi- 
 ness on which they depend for a living, nor 
 may efficiency be declared paramount to the 
 human rights of the workers; for how in the 
 
 1 Idem., pp. 647-8.
 
 $2 American Labor Policy 
 
 long run can the industrial efficiency of a coun- 
 try be maintained if the human values of its 
 workers are diminished or destroyed. The 
 delicate adjustment required to reconcile the 
 two principles named must be made." And 
 applying this general principle to the practice 
 of hiring and discharge, they lay down the 
 following : 
 
 i. Under the present competitive system, the 
 principle of industrial efficiency requires that 
 the employer shall be free and unhampered in 
 the performance of the administrative func- 
 tions which belong to him, and this must be 
 taken to include : 
 
 (a) That he is entirely free to select his 
 employees at his discretion. 
 
 (b) That he is free to discharge the incom- 
 petent, the insubordinate, the inefficient, those 
 unsuited to the shop or those unfaithful to 
 their obligations. 
 
 (c) That he is free in good faith to reorgan- 
 ize his shop whenever, in his judgment, the
 
 Hiring and Firing 53 
 
 conditions of business should make it neces- 
 sary for him to do so. 
 
 (d) That he is free to assign work requiring 
 a superior or special kind of skill to those em- 
 ployees who possess the requisite skill. 
 
 (e) That while it is the dictate of common 
 sense, as well as common humanity, in the 
 slack season to distribute work as far as pos- 
 sible equally among wage earners of the same 
 level and character of skill, this practice can- 
 not be held to imply the right to a permanent 
 tenure of employment, either in a given shop 
 or even in the industry as a whole. A clear 
 distinction must be drawn between an ideal 
 aim and a present right. 
 
 It is this delicate problem of adjusting the 
 principle of industrial efficiency with the essen- 
 tial human rights of the workers, without as- 
 signing priority to either principle, which we 
 must solve. 
 
 In the award of the National War Labor 
 Board in the case of the employees against
 
 54 American Labor Policy 
 
 Sinclair Refining Company, of Coffeyville, 
 Kansas, 1 the following principles were laid 
 down: "No employee shall be discharged as 
 incompetent after 30 days in the employ of the 
 company unless for good and sufficient cause, 
 the determination of which shall be left to the 
 decision of the superintendent, after confer- 
 ring with the coopers' shop committee. . . . 
 No cooper shall be discharged or removed 
 from the service of the company without just 
 and sufficient cause. Employees who believe 
 they have been unjustly dealt with may pre- 
 sent their grievances to the shop committee of 
 the coopers or their representatives on the 
 shop committee, who will endeavor to have the 
 grievances adjusted, without delay, with the 
 shop foreman. If adjustment with the fore- 
 man is impossible, the case may be appealed 
 to the higher officials in charge. Should it 
 be found that an employee has been unjustly 
 discharged or dealt with, he shall be reinstated 
 and paid for all time lost." In the recently 
 
 1 Docket No. 395.
 
 Hiring and Firing 55 
 
 announced plan of the Standard Oil Company, 1 
 provision is made for an organization of the 
 men and for the securing of protection against 
 unjustifiable discharge. Under this arrange- 
 ment certain offenses justify suspension or dis- 
 missal without notice. These include carry- 
 ing concealed weapons, fighting, stealing, fail- 
 ure to wear safety goggles, etc., insubordina- 
 tion, etc., while in other cases an employee may 
 not be discharged without first having been 
 notified that a repetition of the offense will 
 make him liable to dismissal. A foreman will 
 not discharge or suspend. He must report the 
 case to the Employment Department, from 
 whose decision the employee has a right of ap- 
 peal. Provision is made for joint conferences 
 of employees' representatives and company 
 representatives. Similarly, in the plan of the 
 Colorado Fuel & Iron Co., provision is made 
 for organization of the employees and the re- 
 dress of grievances. 
 
 There is still another factor to be considered. 
 
 i New York Times, April 7, 1918.
 
 56 American Labor Policy 
 
 Not only in police and in fire departments is 
 continuity of employment vital to the needs 
 of the community, but in the operation of rail- 
 roads "it is against the public interest that men 
 employed on railroad or other public utilities 
 may, without notice, exercise their right to 
 quit their jobs in a group thus crippling if not 
 totally arresting the operations of public utili- 
 ties, to the great damage of the public." In 
 the second street car strike of 1916, a high 
 power dynamite bomb blew up the I loth Street 
 station of the Lenox Avenue Subway on Oc- 
 tober 25th. It gouged a hole in the solid con- 
 crete and steel platform and the roadbed, shat- 
 tered every pane of glass in the station, and 
 injured four persons. Incidentally, it stopped 
 for the time one of the vital arteries of traffic 
 of an entire community. For this crime one 
 of the secretaries of a local of the Amalga- 
 mated Association of Street and Electric Rail- 
 way Employees was convicted on March 9th, 
 
 1 Findings in Street Car Strike by Public Service Commis- 
 sion, First District, New York Memorandum of August loth, 
 1916.
 
 Hiring and Firing 57 
 
 the jury being out but twelve minutes. Fol- 
 lowing the street car strike in Brooklyn in No- 
 vember of 1918, ninety-two people were killed 
 and scores were injured by the use, it is al- 
 leged, of a suddenly hired motorman of inex- 
 perience, who crashed his car into a tunnel 
 wall and ground other cars into splinters. For 
 this, as we are writing this article, the press 
 reports that the President of the Brooklyn 
 Rapid Transit Co. and several other officers 
 are indicted for manslaughter. The effect of 
 a strike upon the revenues of a street railway 
 company is shown in the table in the foot- 
 note. 1 
 
 1 Comparison between the last four months of 1916 and 
 1915 clearly shows the effect of the strike on the revenues of 
 the companies: 
 
 Increase Ratio 
 
 September-December or (D) 1916 to 
 Group I 1915 1916 decrease 1915=100 
 Third Ave. system $3,672,080 $2,110,378 D $1,561,701 57.5 
 Second Ave. R. R. 292,009 177,580 D 114,429 60.8 
 New York Rail- 
 ways 4,567,255 3,041,122 D 1,526,132 66.6 
 
 N. Y. & Queens 
 Co. Ry 465,253 420,960 D 44,293 90.5 
 
 Total $8,996,598 $5,750,042 D $3,246,556 63.1
 
 58 American Labor Policy 
 
 But the community suffers in yet another 
 aspect. It loses the very valuable services of 
 competent men. The Receiver of the Second 
 Avenue Railroad, one of the companies in- 
 
 Group II 
 
 Interborough Sub- 
 way $6,191,011 $7,007,860 $816,849 H3.2 
 
 Interborough Ele- 
 vated 5,154,419 6,134,909 980,490 119.0 
 
 Group III 
 
 Brooklyn Rapid 
 Transit $9,033,586 $9,516,303 $482,717 105.3 
 
 Hudson & Man- 
 hattan R. R 1,225,757 1,350,898 125,141 110.2 
 
 Queens lines, excl. 
 
 N. Y. & Q. Co... 394,604 417,703 23,100 105.8 
 
 NOTE. Additions and subtractions were made before 
 the cents were dropped. 
 
 The first group consists of the surface railways in Man- 
 hattan and The Bronx together with one company in Queens 
 that was seriously involved. In the second group are the In- 
 terborough subway and elevated lines, on which a strike was 
 called but did not seriously interrupt traffic. The third group 
 comprises practically all of the remaining companies of the 
 city which were not involved in the strike. 
 
 The passenger receipts of the surface railways in Group I 
 during the entire period amounted to 63 per cent, of their re- 
 ceipts in the corresponding months of 1915, having declined 
 from 9 to 5f million dollars. The loss was therefore at least 
 3% million dollars. It was probably greater since the 1916 
 receipts would normally have exceeded the 1915 receipts as a 
 result of natural growth of traffic. Assuming a probable
 
 Hiring and Firing 59 
 
 volved in the strike of 1916, testified that men 
 who before the strike assured him that they 
 could not be taken away "with a horse and 
 wagon," nevertheless went out in the strike. 
 
 rate of increase of 5 per cent., which is less than the growth 
 of traffic on the Brooklyn and Long Island lines not involved 
 in the strike, the total loss to the first group of companies 
 may be computed to be $3,750,000. 
 
 The strike also imposed upon the companies additional ex- 
 penses. These, however, were offset by savings in wages of 
 regular employees in the case of most of the companies, so 
 that the net loss was not quite as large as the gross loss ex- 
 cept in the case of the Third Avenue companies. The follow- 
 ing table summarizes losses in profits as well as decreases in 
 receipts : 
 
 Loss IN CAR MILEAGE, PASSENGER RECEIPTS AND PROFITS OF 
 ROADS ADVERSELY AFFECTED BY THE STRIKE, 1916 
 
 .-, Decrease in Loss in profits 
 
 Car . 
 
 .. passenger (operating 
 
 Sept.-Dec. ^ ~? receipts* income) 
 
 Amount Per Amount Per 
 
 IQI"? 
 
 cent. cent. 
 
 New York Rail- 
 ways 66.40 $1,526,132 33.41 $1,105,021 68.62 
 
 N. Y. & Q. Co. 
 Ry 86.09 44,293 9,52 14,894118.28 
 
 Third Avenue 
 Ry 61.01 1,561,70142.53 1,571,947119.32 
 
 Second Avenue 
 R. R 65.34 114,42939.19 93,074 116.70 
 
 65.44 $3,246,556 36.09 $2,784,938 92.22 
 * Includes insignificant amounts of revenue from express, etc.
 
 6o American Labor Policy 
 
 He said : "There are men now who have been 
 out going on six months, and they have never 
 shown up to go to work. You will see them 
 walking around by the depot. They have 
 never asked to go to work." 
 
 There is still one more phase of this factor 
 of impermanence of tenure. The corollary of 
 the right to discharge at any time because of 
 the "at will" character of the employment is 
 the right to strike at any time. In the hear- 
 ings before the Public Service Commission of 
 the First District, New York, in 1917, upon 
 what was generally called the "Straus Plan," 
 
 August 
 
 Richmond com- 
 panies 82.59 $15,72117.78 $18,377 47-38 
 
 Total 65.68 $3,262,27735.91 $2,803,315 91.76 
 
 In the case of the Third Avenue system an operating profit 
 or income (before interest and dividends) of $1,317,482 in 
 1915 was replaced by a deficit of $254,466 in 1916, a decrease of 
 $1,571,948, or 119 per cent. The Second Avenue and the New 
 York & Queens County Railway companies also realized a 
 deficit instead of a profit from operation while the New York 
 Railways lost 69 per cent, of its operating income or net earn- 
 ings. For all the companies listed, net earnings fell from 
 $3,055, 099 to $251,693, a decrease of $2,803,316, or 92 per cent.
 
 Hiring and Firing 61 
 
 the advocates of this "freedom of contract re- 
 lationship" opposed any attempt to change the 
 insecurity of tenure. The President of the 
 Brooklyn Rapid Transit Co. said: "We have 
 a splendid body of men who are trying in their 
 own way, and, I think, the right way, to solve 
 these difficult problems, and we ask that they 
 be left alone to solve them in that way so long 
 as it is satisfactory to them and insures public 
 comfort." * Yet twenty-two months later this 
 very satisfactory condition culminates in the 
 indictment of the President for manslaughter 
 as one of the casual incidents of another strike, 
 and two months later a receivership of the rail- 
 road takes place! And taking their stand 
 upon precisely the same principle of absolute 
 freedom of contract and right to leave at any 
 time, labor leaders made the same "let us 
 alone" argument. They insisted upon the 
 right to leave "at any time and for any or no 
 reason." In the garment strike of 1916, fol- 
 lowing the lockout declared by the manufac- 
 
 1 Minutes of Hearing, February 8, 1917, p. 139.
 
 62 American Labor Policy 
 
 turers, the union conceded the right of the 
 manufacturers "to hire and discharge their 
 employees" provided "that, for any arbitrary 
 and oppressive exercise of this right, the work- 
 ers should have 'the right to strike.' ' And 
 this finally culminated in an amendment of the 
 Protocol, which provided : 
 
 "The employer shall be free, according to 
 the dictates of his business, to increase or de- 
 crease the number of his employes to meet 
 the conditions in his factory, and to retain such 
 of his employes as he may desire on the basis 
 of efficiency. 
 
 "The workers, however, shall have the right 
 to strike against any employer who exercises 
 the power to increase and decrease his work- 
 ing force, as above set forth, arbitrarily and 
 oppressively, or who violates any express pro- 
 vision of this agreement." 
 
 The Protocol which this amended, drawn up 
 in 19 iQ, 1 provided in principle for the elimi- 
 nation of all strikes for any cause and for a 
 
 1 See "Law and Order in Industry," Appendix A.
 
 Hiring and Firing 63 
 
 system of review of discharges before boards 
 of grievances, chief clerks, committees on im- 
 mediate action, or boards of arbitration. 1 
 This effort at constitutionalizing the industry, 
 by the use of juridical machinery, broke down 
 because the employers insisted that imperma- 
 nency of tenure was necessary for the mainte- 
 nance of discipline and efficiency, and the em- 
 ployees insisted upon their time-honored right 
 to strike at any time. It is the writer's experi- 
 ence that there must be yielding upon both sides 
 before a sound working basis can be established. 
 "Analogy is a necessary mode of all our 
 thinking," says Knowlson, 2 "and genius is 
 often another name for the power to see simi- 
 larities in phenomena, natural or mental, that 
 have hitherto been undetected." "An intuitive 
 perception of the similarity in dissimilars," 
 making the thinker "master of metaphor," 
 Havelock Ellis says, "is the mark of genius." 3 
 "Thus it comes about," says he, "that the 
 
 1 See "Law and Order in Industry." 
 
 2 T. Sharper Knowlson: "Originality," p. HO. 
 
 3 "Impressions and Comments," pp. 80-81.
 
 64 American Labor Policy 
 
 thinkers who survive are the thinkers who 
 wrote well and are most nearly poets." It is 
 no original discovery of the writer to find a 
 very close analogy between elements in the 
 international legal situation and elements in 
 the industrial legal situation. It is true that 
 Germany relied upon her army and England 
 relied upon her navy for the enforcement of 
 international law, and it is true also that the 
 conception of international law entertained by 
 Germany was in conflict with the conception of 
 international law entertained by England and 
 by the United States. The latter two coun- 
 tries are committed to the first of the two 
 schools of philosophical thinkers or historians 
 distinguished by Viscount Bryce. The be- 
 lievers in the English common law lay stress 
 on "the power of Reason and of those 
 higher and gentler altruistic emotions which 
 the development of Reason as the guide of life 
 tends to evoke and foster" and find in these 
 tendencies "the chief sources of human prog- 
 ress in the past, and expects from them its fur-
 
 Hiring and Firing 65 
 
 ther progress in the future." This philosophy 
 regards man "as capable of a continual ad- 
 vance through the increasing influence of rea- 
 son and sympathy," and relies upon "the ideas 
 of Justice and Right as the chief factors in the 
 amelioration of society." The opposite school 
 insists that social order "can be secured only 
 by Force and Right itself is created only by 
 force" and this school of philosophy is "asso- 
 ciated with the less rational elements in man 
 with passion and the self-regarding impulses 
 which naturally attain their ends by physical 
 violence." The analogy of industrial rela- 
 tions to international relations is perfect in 
 this: that whether it be the employers' group 
 or the workers' group, the rights of either, like 
 the rights of a nation, are presently enforceable 
 only by the use of force not organized force 
 resultant from the deliberations of the com- 
 munity and arrived at through juridical and 
 parliamentary process, but force within the 
 
 1 "War and Human Progress." The Atlantic Monthly, 
 September, 1916, pp. 301-2.
 
 66 American Labor Policy 
 
 control of one or the other party to the contro- 
 versy. The Fourth of July address of the 
 President, containing a principle accepted now 
 by all the international belligerents, embraced 
 the following: "The destruction of every ar- 
 bitrary power anywhere that can separately, 
 secretly, and of its single choice disturb the 
 peace of the world ; or, if it cannot be presently 
 destroyed, at the least its reduction to virtual 
 impotence." And the third principle contains 
 the statement : "The consent of all nations to 
 be governed in their conduct toward each other 
 by the same principles of honor and of respect 
 for the common law of civilized society that 
 govern the individual citizens of all modern 
 States in their relations with one another; to 
 the end that all promises and covenants may 
 be sacredly observed, no private plots or con- 
 spiracies hatched, no selfish injuries wrought 
 with impunity, and a mutual trust established 
 upon the handsome foundation of a mutual re- 
 spect for right." Change the word "nations" 
 to "groups," and we have principles equally
 
 Hiring and Firing 67 
 
 applicable to the industrial situation put in 
 the admirable diction of the President. 
 
 Why must any group in the community be 
 free to strike "at any time and for any or no 
 reason"? The writer was present as Special 
 Counsel to the Public Service Commission in 
 1917 when this question was publicly discussed. 
 The answer was very frankly given by one of 
 the leaders of labor. He said : "I want to be 
 fair and I will say that I do not think it is a 
 good idea to tell the other fellow what you are 
 going to do, and to give them thirty days, more 
 or less, to make preparation to get ready to 
 fight you." l And the experienced chairman 
 of a board of arbitration said: "Industrial 
 war has its strategy of time and position like 
 military war, and the objection of the labor 
 leader to the Canadian disputes act is that it 
 gives an important strategic advantage to the 
 employer." 2 It is worth following his reason- 
 
 1 Minutes of Hearing before the Commission, February 9, 
 1917, p. 197. 
 
 2 J. E. Williams, discussing Canadian Industrial Disputes Act 
 The Survey, March 31, 1917, p. 755. Mr. Williams died
 
 68 American Labor Policy 
 
 ing further: "To rouse the enthusiasm of a 
 large body of men to the striking point often 
 requires a great deal of stimulation and effort, 
 and it requires also, to be effective, that the 
 accumulated dynamite be exploded at the psy- 
 chological moment. If after working up the 
 righting spirit to high tension, the labor leader 
 be required to keep it there during a period 
 of investigation, he would find his task not only 
 more difficult but in some cases impossible." 
 Now, of course, military strategy is a game at 
 which two can play, and advocacy of the right 
 to strike at any time without notice is clear 
 warning to the employer who does not want to 
 deal with the union that the blow may fall at 
 any moment. Preparedness, then, for such an 
 employer results in the military strategy of 
 keeping the union from getting a foothold. 
 Detectives are employed who keep the em- 
 ployer well informed when the union is gaining 
 
 while these lines were being penned. He was one of the wisest 
 conciliators of our day and generation (and his experience 
 with labor leaders as well as employers justifies our confidence 
 in him as it did theirs).
 
 Hiring and Firing 69 
 
 ground and who are joining the union. These 
 are promptly eliminated and thus is anticipated 
 the adversaries' attack. The union then coun- 
 ters upon the employer with charges of dis- 
 crimination against the union and discharging 
 men for union activity. This, as the writer 
 learned from his investigations at the time, is 
 the story of the street car strike of 1916. The 
 union sought to get a foothold; the company 
 discharged the men whom it found joining the 
 union ; the union struck to reinstate these men. 
 The strike spread until it came near involving 
 the entire city in a general strike. But in the 
 ultimate outcome the company justified itself 
 by the insistence upon the part of union leaders 
 of absolute freedom to apply military strategy 
 to the situation. Our analogy, therefore, is 
 complete. We are dealing with a situation as 
 ready for war as was the European situation 
 prior to August 4th, 1914. The President 1 
 clearly foresees the conditions which must be 
 brought about if a like international crisis is 
 
 1 Address to the Senate, January 22, 1917.
 
 70 American Labor Policy 
 
 not again to be repeated. "Mere terms of 
 peace between the belligerents will not satisfy 
 even the belligerents themselves. Mere agree- 
 ments may not make peace secure. It will be 
 absolutely necessary that a force be created as 
 a guarantor of the permanency of the settle- 
 ment, so much greater than the force of any 
 nation now engaged or any alliance hitherto 
 formed or projected, that no nation, no prob- 
 able combination of nations, could face or with- 
 stand it. If the peace presently to be made 
 is to endure, it must be a peace made secure 
 by the organized major force of mankind." 
 This is the hope, the inspiring hope of the peo- 
 ples of the world international law not rest- 
 ing upon mere agreement or understanding, 
 but backed by an organized force supported 
 by the common sense of mankind. How this 
 force shall be applied whether economic or 
 military is the question of the hour. 
 
 Coming back to the subject of freedom of 
 industrial contract, we discern certain legal 
 corollaries. For example, the attempt of em-
 
 Hiring and Firing 71 
 
 plovers to counter military strategy against 
 military strategy is found in the discharge of 
 men belonging to the union. The union's 
 counter-attack lies in securing legislation pre- 
 cluding discharge of an employee because of 
 membership in a labor organization. But the 
 legal right to leave employment at any moment 
 and for any or no reason rests, as every lawyer 
 knows, upon the relationship "at will" of the 
 hiring. And since the employee is free to go 
 at any time he pleases, either singly or en 
 masse, the United States Supreme Court finds 
 it impossible to accept the doctrine that the 
 legislature may constitutionally prevent the 
 employer from discharging a man because he 
 joins a union. Says Judge Harlan in the 
 Adair case: 1 "The right of a person to sell 
 his labor upon such terms as he deems proper 
 is, in its essence, the same as the right of the 
 purchaser of labor to prescribe the conditions 
 upon which he will accept such labor from the 
 person offering to sell it. So the right of the 
 
 1 208 U. S. 161.
 
 72 American Labor Policy 
 
 employee to quit the service of the employer, 
 for whatever reason, is the same as the right of 
 the employer, for whatever reason, to dispense 
 with the services of such employee. It was the 
 legal right of the defendant, Adair, however 
 unwise such a course might have been, to 
 discharge Coppage [the employee in the case] 
 because of his being a member of a labor or- 
 ganization, as it was the legal right of Coppage, 
 if he saw fit to do so, however unwise such a 
 course on his cart might have been, to quit 
 the service in which he was engaged, because 
 the defendant employed some persons who 
 were not members of a labor organization. In 
 all such particulars the employer and the em- 
 ployee have equality of right, and any legis- 
 lation that disturbs that equality is an arbitrary 
 interference with the liberty of contract which 
 no government can legally justify in a free 
 land." 1 And in support of his contention be- 
 fore the Public Service Commission that the 
 free right to quit work over against the free 
 
 1 Pp. 174-175. Italics ours.
 
 Hiring and Firing 73 
 
 right to discharge secures justice for the 
 worker, Mr. Gompers said: "I shall not ex- 
 press dissent from that conception of right 
 [Judge Harlan's], but willing to concede that 
 right to employers, I insist upon the right of 
 workers to leave their employment at will, for 
 any good reason, or for no reason at all." 
 But in the Adair case Mr. Justice Harlan said : 
 "Of course, if the parties by contract fixed the 
 period of service, and prescribed the conditions 
 upon which the contract may be terminated, 
 such contract would control the rights of the 
 parties as between themselves, and for any vio- 
 lation of those provisions the party wronged 
 would have his appropriate civil action." 2 It 
 would seem, therefore, to be unquestionably 
 sound applying the international analogy fur- 
 ther that the present legal status must be 
 changed, that each group must give up some- 
 thing of its unrestrained right to wield power 
 and that there must be a "reign of law, based 
 
 1 Minutes of Hearing before the Commission, February 7, 
 1917, p. 70. 
 
 2 208 U. S. 161, at p. 175.
 
 74 American Labor Policy 
 
 upon the consent of the governed and sustained 
 by the organized opinion of mankind." In the 
 emergence of the new legal conception, there- 
 fore, the first step must be taken in the direc- 
 tion of modifying the tenure of employment. 
 The uncertainty and danger of discharge must 
 be removed, the employee must be satisfied that 
 he will get a fair hearing and redress for his 
 legitimate grievances. This is vital to the 
 three parties, the employee, the employer and 
 the community. As we have seen, it affects 
 the public service, the public health, the public 
 order. The present situation results in vio- 
 lence, in economic waste, and in the destruction 
 of industrial morale. It must be changed. 
 How shall it be changed ? 
 
 INDIVIDUAL AND COLLECTIVE BARGAINING 
 
 The Whitley Plan 1 is based fundamentally 
 upon the principle of collective bargaining; 
 
 1 Report of the Right Honorable J. H. Whitley, M.P., Chair- 
 man of the Sub-Committee on Relations between Employers 
 and Employed of the Commission on Industrial Unrest. In- 
 terim Report. London, 1917.
 
 Individual and Collective Bargaining 75 
 
 that each trade should have a constitution, that 
 all of the employers should be organized in one 
 organization and all of the employees organ- 
 ized in another, and that all of the industrial 
 organizations should finally be represented in a 
 national industrial council representative of the 
 trades unions and of the employers' associa- 
 tions in the industry. Without recognizing 
 the union and dealing with the union, this kind 
 of an organization of industry is impossible. 
 The National War Labor Board (United 
 States) adopted as one of the principles and 
 policies governing relations between workers 
 and employers in war industries for the dura- 
 tion of the war the following: "The right of 
 workers to organize in trade-unions and to bar- 
 gain collectively through chosen representatives 
 is recognized and affirmed. This right shall 
 not be denied, abridged, or interfered with by 
 the employers in any manner whatsoever." 
 And, contrary to the decision of the United 
 States Supreme Court in the Adair and Cop- 
 page case, it said that "Employers should not
 
 76 American Labor Policy 
 
 discharge workers for membership in trade- 
 unions, nor for legitimate trade-union activi- 
 ties." As principles, these two statements are 
 as sound as the principle that international 
 treaties shall be observed. Yet Belgium was 
 invaded, and the world went to war to establish 
 the sanctity of international treaties. Is it 
 necessary to go to war to establish the sanctity 
 of industrial principles? If the right to strike 
 at any time for any or no reason whatever is 
 to be maintained because of its value in the 
 philosophy of military strategy, may not em- 
 ployers very properly ask : "Isn't this a game 
 of 'heads you win and tails we lose'?" And 
 again, may they not ask: "If we guarantee 
 permanence of employment and continuity of 
 the job, how shall we be assured that the con- 
 tract not to strike will be observed?" 
 
 Any one at all familiar with the root causes 
 of industrial conflict, any one who is as close to 
 the point of friction as the student of the Bal- 
 kans was to the point of friction in the inter- 
 national situation, will admit that herein lies
 
 Individual and Collective Bargaining 77 
 
 the epidemic germ of industrial war, that it 
 must be isolated and microscopically examined 
 in order that its malignant properties may be 
 offset with some new virus of anti-toxic value. 
 Isolating the germ, then, what do we discern? 
 First of all, that the individual contract be- 
 tween employer and employee protects neither 
 and results in industrial war sooner or later. 
 It creates the pathological condition of im- 
 permanency of employment. When the labor 
 supply is over much, the balance of power 
 swings to the employer. When there is a 
 shortage of labor, the balance of power swings 
 to the employee. When the first condition ex- 
 ists, we have all the elements that make for an 
 imperial employer's autocracy. When the sec- 
 ond condition exists, we have all of the ele- 
 ments that go to make for an imperial work- 
 er's autocracy. 1 The Russian experience has 
 
 1 The effect of transference of power from the employers' 
 group to the employees' group upon attempts at "mutual gov- 
 ernment" of industry and the effect of a like transference of 
 power back again from the employees' group to the employers' 
 group is disclosed in a very excellent study of "Collective Bar- 
 gaining in the Lithographic Industry" by H. E. Hoagland.
 
 78 American Labor Policy 
 
 already taught us that the transference of un- 
 restrained imperial power from the monarch 
 to the proletariat makes for just as much vio- 
 lation of human liberty and freedom as if the 
 power resides in a czar or kaiser. Lenine and 
 Trotzky are imperialistic anti-social bodies, 
 whether covered with the jewels of the Prus- 
 sian crown, or wearing only tatters and rags. 
 Still both employer and employee ask: 
 "How else can we be safeguarded?" and we 
 must pay just as much respect to this legitimate 
 question as we pay to England's insistence that 
 she remain the paramount naval power of the 
 world. Taking up first the employer's side, it 
 may be taken for granted that the existence of 
 a strong employers' association of which he is 
 a member will make for a guarantee to the 
 workers of the performance of any collective 
 agreement into which he or his association 
 may enter. Obviously, on the other hand an 
 individual contract with an employee, even for 
 
 (Columbia University Studies in Political Science, Vol. 
 LXXIV, No. 3.)
 
 Individual and Collective Bargaining 79 
 
 a definite term or period, insures no guarantee 
 of its performance upon the part of the worker. 
 He has none of the financial responsibility of 
 his employer, and if he wanders off there is no 
 way of collecting damages. Moreover, by 
 what process can you make him sing who does 
 not wish to sing? Or make him drink who 
 does not wish to drink? Or make him work 
 who does not wish to work? Herein, for the 
 employer, lies the value of collective bargain- 
 ing. The organized trades union is the collec- 
 tive sentiment of the working community, 
 which can be welded into an effective guaran- 
 tee of the faithful performance of obligations. 
 The experience of Great Britain has been re- 
 peatedly reviewed. In the report of the Brit- 
 ish Industrial Council on its "Enquiry into 
 Industrial Agreements" in 1913, the Council 
 said: "The desirability of maintaining the 
 principle of collective bargaining which has 
 become so important a constituent in the indus- 
 trial life of this country cannot be called into 
 question, and we regard it as axiomatic that
 
 80 American Labor Policy 
 
 nothing should be done that would lead to the 
 abandonment of a method of adjusting the re- 
 lationships between employers and workpeo- 
 ple which has proved so mutually advantageous 
 throughout most of the trades of the country." 
 In the introduction of Sir George Askwith to 
 the "Report on Collective Agreements between 
 Employers and Workpeople in the United 
 Kingdom" made in 1910, he said: 'The wide 
 prevalence of these arrangements in our most 
 important industries must have an important 
 influence on industrial enterprise, for when 
 the level of w r ages, the length of the working 
 day, and other principal conditions of employ- 
 ment are regulated, for specified periods of 
 greater or less duration, by clearly defined 
 Agreements, the employers concerned must be 
 enabled to calculate with precision that part of 
 the cost of production which will be repre- 
 sented by labour; further, when these Agree- 
 ments bind the whole or a very large propor- 
 tion of the firms engaged in a given trade, the 
 danger of undercutting by rivals who find it
 
 Individual and Collective Bargaining 81 
 
 possible to obtain labour at a lower price is ma- 
 terially reduced." And in the more recent re- 
 port of the Commission of Inquiry into Indus- 
 trial Unrest, 1 they say: "The best security 
 for industrial peace is organization of both 
 employers and employed. If the men are 
 badly organized the result is unauthorized local 
 strikes; if the employers are not strongly fed- 
 erated, you have a minority who refuse to pay 
 the district rate." And in the report of Presi- 
 dent Wilson's Mediation Commission, the sec- 
 ond principle stated is: Some form of col- 
 lective relationship between management and 
 men is indispensable. 2 The common ground 
 for a meeting of minds, therefore, is collective 
 bargaining. Here military strategy may be 
 given up in exchange for treaty obligations. 
 Change of tenure of employment, qualification 
 of the right to strike and qualification of the 
 right to discharge the result and outcome of 
 a free, open, democratic meeting of minds. 
 
 1 Bulletin of the U. S. Bureau of Labor Statistics No. 237, 
 p. 100. 
 
 2 See New York Evening Post, February u, 1918.
 
 82 American Labor Policy 
 
 Shall we give to this process of group contract- 
 ing the same cordial support which the com- 
 mon law now extends to individual contract- 
 ing? Marked differences exist between the 
 English trade union situation and that of our 
 own country. 1 First of all, British labor has 
 a long political history. Since the sixties of 
 the last century it has maintained special in- 
 tellectual affiliations with the non-manual 
 workers. Labor is far less highly organized in 
 America and "Industrial capital is far more 
 highly organized and far more hostile to labor 
 than it is in England." 2 Why is organized 
 American capital opposed to organized Ameri- 
 can labor? The answer is that both sides are 
 still in the stage of military strategy, and both 
 sides must be won over to the stage of indus- 
 trial law. They will not be won over any more 
 quickly than the nations of the world will be 
 won over to a League of Nations unless their 
 
 1 See address of Harold J. Laski on War Labor Policies and 
 Reconstruction, session of the Academy of Political Science, 
 December, 1918. 
 
 2 Report of Harold J. Laski's address in New York Journal 
 of Commerce, December 10, 1918.
 
 Individual and Collective Bargaining 83 
 
 assent is obtained to a constructive program in 
 which they are secured. The nations of the 
 world could not have been won over to such a 
 constructive program before the great world 
 war. The world was not yet ready. It is the 
 bitter lessons of the war which made a general 
 public sentiment demanding that international 
 war be subordinated to international law. 
 Must we go through the same painful experi- 
 ences before we can secure that combination of 
 feeling and judgment which is prerequisite to 
 the establishment of industrial law? Perhaps 
 the analogy of the international situation will 
 help us further. We had all assumed that the 
 making of a collective bargain between Ger- 
 many and Belgium was enough. It would be 
 preserved through the force of its own inherent 
 moral soundness and an enlightened interna- 
 tional public opinion. How futile that phi- 
 losophy was we now know. In like fashion 
 some experience with collective bargaining 
 under the administration of the War Labor 
 Board teaches us the same lesson. We have
 
 84 American Labor Policy 
 
 had the recent decrees of the War Labor Board 
 flouted on both sides, and only the organized 
 power of the community vested in the Presi- 
 dent under law enabled him to exercise the 
 war power, in the one instance (the Smith & 
 Wesson plant) by taking over the plant and 
 operating it as a governmental agency, and in 
 the other (the Bridgeport munition workers) 
 by informing the men that if they refused to 
 abide by the award of the National War Labor 
 Board and did not return to work, they would 
 "be barred from employment in any war indus- 
 try in the community in which the strike occurs 
 for a period of one year" and furthermore that 
 during that time the United States Employ- 
 ment Service would decline to obtain employ- 
 ment for them in any war industry elsewhere 
 in the United States, as well as under the War 
 and Navy Departments, the Shipping Board, 
 the Railroad Administration, and all other 
 government agencies, and "the draft boards 
 will be instructed to reject any claim of exemp- 
 tion based on your alleged usefulness on war
 
 Individual and Collective Bargaining 85 
 
 production." 1 Similarly, Dr. William Z. Rip- 
 ley in the case of Rosenwasser Brothers found 
 the facts to be these : An agreement had been 
 reached by the workers' representatives for 
 navy shoes. The vampers for some reason re- 
 pudiated the agreement and walked out. The 
 representative of the National War Labor 
 Board said: "By this action they have for- 
 feited their positions, not only in this factory 
 but are liable to be excluded from Government 
 employment during the rest of the war. The 
 Administration of Labor Standards stands for 
 fair dealing and a full recognition of the work- 
 ers' rights, but it likewise insists upon effi- 
 ciency, discipline and good faith. This strike 
 was a breach of the Government's War Policy 
 and also of straightforward business dealing 
 between capital and labor. It will not be toler- 
 ated so far as any penalty which this office can 
 impose is concerned." These experiences are 
 in accord with the writer's experience in the 
 
 1 Monthly Labor Review, Bureau of Labor Statistics, U. S. 
 Dept. of Labor, October, 1918, Vol. VII, No. 4, "Awards and 
 Decisions of the National War Labor Board."
 
 86 American Labor Policy 
 
 street car strike of 1916 and the Protocol ex- 
 periences in the garment industries. 1 After 
 the Public Service Commission and the Mayor 
 had settled the street car strike upon terms sat- 
 isfactory to both parties, recognizing clearly 
 the right of men to belong to a union, on both 
 sides the agreement was broken 2 and the Pub- 
 lic Service Commission and the Mayor, who 
 had given their guarantee that the agreement 
 would be enforced, found themselves without 
 legal power to do anything. It became per- 
 fectly clear that the absence of legal power to 
 enforce the observance of agreements has pre- 
 cisely the same result in industrial relations as 
 it has in international treaties. If the philoso- 
 phy of force be actuating either of the contend- 
 ing parties, or, for that matter, be actuating 
 both of them, military strategy will lead to 
 the striking of the first blow when the adver- 
 sary is not looking for it. 
 
 As in international relations so in industrial 
 
 1 See "Law and Order in Industry." 
 
 2 This does not include the Third Avenue Railway Company.
 
 Individual and Collective Bargaining 87 
 
 relations we have heretofore depended upon 
 the parties to the treaty to see to its enforce- 
 ment and, therefore, to the extent that the par- 
 ties were militarily prepared, treaties were or 
 were not enforceable. The strike, the lockout 
 and discharge are the army and navy of the 
 contracting powers the sole means now avail- 
 able to secure observance of obligations. This 
 is the lesson of the street car strike, of the gar- 
 ment industry, of many others. 1 
 
 Until we put the parties upon a firmer basis, 
 we might just as well ask England to give up 
 her naval fleet as ask the trades unions to give 
 up their right to strike. And with equal truth, 
 we might as well ask employers to give up their 
 right to prepare to meet the forces they regard 
 as their foes. (If you can't meet the navy 
 upon terms of equality, you can use the sub- 
 marine, can't you?) So long as the game is 
 one of military strategy, you must keep your 
 powder dry and watch your own and the 
 
 1 See "Collective Bargaining in the Lithographic Industry," 
 by H. E. Hoagland. Columbia University Studies in Political 
 Science, Vol. LXXIV, No. 3.
 
 88 American Labor Policy 
 
 enemy's alignment. That is why the safety of 
 the entire industrial structure rests to-day, as 
 did the world's peace, upon the ''balance of 
 power." In the industrial situation, however, 
 the "balance of power" is shifting uneasily to 
 the greater majority a majority but recently 
 graduated from a special and highly dramatic 
 course in democracy. 
 
 But, no league of nations in existence, what 
 other way was there of redressing the wrong 
 to Belgium except to go to war? In the day 
 of individual retributive justice, when the pio- 
 neer had to meet the savage's knife, the repres- 
 sive action required to secure the preservation 
 of liberty came not from the community, but 
 from a part of it, the individual-about-to-be- 
 injured. He himself was the administrator of 
 justice. He personally enforced a decent re- 
 spect for human life. He was judge, jury and 
 sheriff, all in one. Justice upon the minute as 
 and when necessary was meted out by him. 
 There was none of the law's delays. He was 
 the law. In the next state of civilization, when
 
 Individual and Collective Bargaining 89 
 
 it was no longer protection of the civilized man 
 from the savage but protection of the civilized 
 man from his brother, justice was adminis- 
 tered upon the plane of the duel. Celerity of 
 aim and swiftness of arm constituted the jurid- 
 ical test. Later, in the day of the Western 
 frontier, we have the community organizing 
 spasmodically to repress violence. It is the 
 mass effort to repress savage instincts. So 
 with nations. The predatory nation attempts 
 to take its neighbor's territory but meets with 
 the same defense as the pioneer set up against 
 the savage. Human rights are upheld by the 
 about-to-be-injured nation, as judge, jury and 
 sheriff all in one. Sometimes, as in the case of 
 Belgium and Northern France, the predatory 
 savage is too swift or the attacked innocent too 
 unprepared. For the time being justice fails 
 and human rights are outraged. But the 
 moral sense of a larger community is outraged. 
 The very success of the predatory nation 
 arouses something fine and big in others and 
 there comes a new repressive force. A moral
 
 9<3 American Labor Policy 
 
 basis is formed upon which the Allies, organ- 
 izing under many flags, but with a single pur- 
 pose, the securing of justice and the enforce- 
 ment of international law, repress the in- 
 vader of territory and the destroyer of human 
 rights and thereby lay the foundation for 
 better administration of international law. 
 Nevertheless, until some kind of international 
 organization based upon international law is 
 brought into existence, we are still left upon 
 the plane of the duel. 
 
 In like fashion the invasion of human rights 
 through autocratic exercise of industrial au- 
 thority results in the organization of some kind 
 of repressive force. The laborers form 
 unions. These fight for their lives. They 
 fight for the right to organize. They fight 
 for better working conditions. They repre- 
 sent for the time being the best kind of an or- 
 ganization then possible of formation for the 
 improvement of the conditions of working peo- 
 ple. They become a kind of vigilance commit- 
 tee for the repression of outrages upon any of
 
 Individual and Collective Bargaining 91 
 
 their members. They fight because they must 
 fight. And when, through success of conflict, 
 they attain power, the remainder of the com- 
 munity once again runs the risk of power un- 
 restrained by law. It is most fortunate for 
 this country that at the moment the present 
 leaders of organized labor instinctively recog- 
 nize the limits to which they should use their 
 power. By the exercise of sheer personal re- 
 straint, they have applied in large measure the 
 repression the community itself must sooner or 
 later inevitably apply. But in instances where 
 the mass power has passed into the hands of 
 men who believe with Sorel and Trotzky and 
 Lenine, success merely whets the appetite for 
 greater power. Collective bargaining with 
 organisations led by men who believe in the 
 ultimate overthrow of all industry and the 
 passing of power to the proletariat is in effect 
 pacifism dealing with autocracy, delaying 
 rather than disposing of the conflict that must 
 inevitably come. From our experiences in the 
 administration of the National War Labor
 
 92 American Labor Policy 
 
 Board, we learn that even at a time when the 
 strongest appeal to patriotism can be made, 
 there must be back of the agreement, back of 
 the law, a power to enforce the law. 
 
 Here again we find instructive analogy in 
 the evolution of legal procedure. In the early 
 days of Anglo-Saxon justice, there was no 
 executive power to enforce the law. What 
 seems to us to be so ordinary and so simple in 
 the administration of law to-day was then en- 
 tirely lacking. To-day the courts compel the 
 attendance of parties ; they enforce their judg- 
 ments, their interlocutory orders. All these 
 things are done under the ordinary authority 
 of the court, as matter of course. Open re- 
 sistance to judicial orders is so plainly useless 
 that it is very rarely attempted, and any one 
 who prefers penalties to submission is regarded 
 as indicating eccentricity almost amounting to 
 unsoundness of mind. 1 Says Sir Frederick 
 Pollock : "But this reign of law did not come 
 
 1 Sir Frederick Pollock : "Expansion of the Common Law," 
 pp. 145-6.
 
 Individual and Collective Bargaining 93 
 
 by nature; it has been slowly and laboriously 
 won." The original jurisdiction was purely 
 voluntary, derived not from the authority of 
 the state, but "from the consent of the parties." 
 It was like our present day collective bargain- 
 ing good as far as it went. "People might 
 come to the court," says Sir Frederick Pollock, 
 "for a decision if they agreed to do so." They 
 were, of course, in honor bound to accept the 
 result. They might forfeit the pledges which 
 they deposited with the court, but there was 
 no power to compel their obedience any more 
 than there is to-day any power to compel obedi- 
 ence to the decrees of a tribunal of arbitration 
 appointed under a treaty. In more recent 
 times, we see the Central American Court of 
 Justice, an international tribunal, going to 
 pieces because it lacks method for the enforce- 
 ment of its decrees. By Article XXV of the 
 treaty between the Central American republics 
 it was provided: "The judgments of the 
 Court shall be communicated to the five Gov- 
 ernments of the contracting Republics. The
 
 94 American Labor Policy 
 
 interested parties solemnly bind themselves to 
 submit to said judgments, and all agree to lend 
 all moral support that may be necessary in 
 order that they may be properly fulfilled, 
 thereby constituting a real and positive guar- 
 antee of respect for this Convention and for 
 the Central American Court of Justice." This 
 guarantee turned out to be just as good and no 
 better than the guarantee of the Public Serv- 
 ice Commission and the Mayor of the City of 
 New York of the observance of the treaty of 
 peace that settled the first street car strike in 
 1916. On March I7th, 1918, the Central 
 American Court ceased to exist, because its de- 
 crees were unenforceable. 1 Let us hope the 
 
 1 Wicker, Cyrus F. : "Nicaragua and the United States," 
 Atlantic Monthly, Vol. 119, 1917, pp. 682-685. 
 
 "The Central American Peace Conference. 1907. Treaties." 
 (In American Journal of International Law, Vol. 2, Supple- 
 ment, pp. 219-265.) 
 
 "Central American Court of Justice. Regulations and Or- 
 dinance of Procedure." (In Same, Vol. 8, Supplement, pp. 
 179-213.) 
 
 "Bryan-Chamorro Treaty." (In Same, Vol. 10, Supplement, 
 pp. 258-260.) 
 
 "Central American Court of Justice. Note addressed to the 
 governments of Costa Rica, El Salvador, Honduras and
 
 Individual and Collective Bargaining 95 
 
 Council of Peace at Versailles will do better. 
 In the early days of Anglo-Saxon administra- 
 tion * the only way by which you could bring an 
 unwilling adversary into court was to take as 
 security something belonging to him and hold 
 it until he would attend to the demand. Prac- 
 tically the only things that could thus be taken 
 without personal violence were cattle. Thus 
 arose the process of distress. It was forbid- 
 den to distrain until right had been formally 
 demanded in Quit's time to the extent of 
 three summonings and refused. Thus grad- 
 ually judicial supervision of the process was 
 secured. Nevertheless, if taking a man's cat- 
 tle failed to make him appear in court, the only 
 resource left "was to deny the law's protection 
 to the stiff-necked man who would not come to 
 be judged by law." He might be outlawed. 
 This was enough to coerce most men who had 
 
 Guatemala" (respecting the refusal of Nicaragua to abide by 
 the decision in the case of Costa Rica). (In Same, Vol. n, 
 Supplement, pp. 3-13.) 
 
 1 Sir Frederick Pollock : "Expansion of the Common Law," 
 pp. 145-6.
 
 96 American Labor Policy 
 
 anything to lose and were "not strong enough 
 to live in rebellion. Nevertheless, in this stage 
 of the development of the law, no right could 
 be done to the complainant without the volun- 
 tary submission of the defendant. 'The de- 
 vice of a judgment by default," says Pollock, 
 "which is familiar enough to us, was unknown, 
 and probably would not have been understood." 
 Even after you got your final judgment you 
 could not enforce it by legal process. "The 
 successful party had to see to gathering the 
 'fruits of judgment/ as we say, for himself. 
 In case of continued refusal to do right accord- 
 ing to the sentence of the court, he might take 
 the law into his own hands, in fact wage war 
 on his obstinate opponent." So in present day 
 industrial situations we leave the parties them- 
 selves to enforce the agreement; they take the 
 law into their own hands. If either breaks the 
 agreement the other is obliged to wage war to 
 secure its enforcement. If two sides break the 
 agreement, as the writer saw them do in the 
 street car strike of 1916, we have a bitter duel,
 
 What Is the Next Step? 97 
 
 the whole controversy is put upon the plane of 
 military strategy and the community stands by 
 helpless. 
 
 Not merely a change in the state of conti- 
 nuity of employment, therefore, not merely a 
 change of the hiring at will, not merely recog- 
 nition of the union, nor collective bargaining, 
 nor strengthening the power of organized 
 labor or of organized employers, but something 
 more is required. 
 
 WHAT IS THE NEXT STEP? 
 
 The next step, of course, must be one that 
 will secure the assent of all three parties the 
 Employers' Group, the Workers' Group and 
 the Public. The great war is over. The job 
 of industrial control can be carried on no longer 
 by the War Labor Board, backed, as it was, by 
 the tremendous war powers of the President. 1 
 We are back again to the stage where both par- 
 
 1 Already the jurisdiction of this Board is challenged. See 
 New York press, December 31, 1918, refusal of street railway 
 companies to submit to War Labor Board.
 
 98 American Labor Policy 
 
 ties "come into court" only of their own choice. 
 Nor are we likely soon to get legislation that 
 will furnish anything of the effectiveness of 
 existing legal process. Confidence upon the 
 part of the great masses of men in judicial ma- 
 chinery and in the personnel of our judiciary is 
 not now great enough to secure their free as- 
 sent to the submission of controversies to exist- 
 ing tribunals. Nor shall we find American 
 employers eager to embrace organized labor or 
 ready to sign collective agreements en masse. 
 Is there, then, no way out? Must we go 
 through a terrible industrial war before both 
 sides, worn out, suffering the ravages and pain 
 of a struggle that if it comes, is certainly des- 
 tined to be violent, shall sit down at a council 
 table to formulate their fourteen points? If 
 we could be confident that men were guided by 
 their reason and not by their emotions, we 
 might look out hopefully upon the future of 
 this industrial problem. There is a way out, 
 if experience can be made to count. 
 
 Labor must be organized and must be per-
 
 What Is the Next Step? 99 
 
 mitted to join in the management of industry. 
 
 Employers must be organized. 
 
 The determination of the standards and 
 working conditions of each industry must come 
 about, if not through war, then through the 
 action of groups of employers and workers 
 legislating for their industries in common and 
 free parliamentary action. 
 
 There must be opportunity and full oppor- 
 tunity for the redress of all grievances. 
 
 There must be machinery that will secure to 
 the worker a reasonable tenure of employment. 
 
 Two things also must be expressed in such 
 a compact a limitation of the free right to 
 discharge and a limitation of the free right to 
 strike. By the process of free negotiation, 
 these two rights in the past have been balanced. 
 It can be done again. But collective bargain- 
 ing between two powers is like treaty making 
 between warring nations. There must be es- 
 tablished, as the President said there must be 
 established in international relations, "an or- 
 ganization of peace which shall make it certain
 
 ioo American Labor Policy 
 
 that the combined power of [a] free [nations] 
 [people] will check every invasion of right and 
 serve to make peace and justice the more se- 
 cure by affording a definite tribunal of opin- 
 ion to which all must submit and by which 
 every international readjustment that cannot 
 be amicably agreed upon by the peoples di- 
 rectly concerned shall be sanctioned." Or, put 
 in his single sentence: "What we seek is the 
 reign of law, based upon the consent of the 
 governed and sustained by the organized opin- 
 ion of mankind." 
 
 Here we must pause to consider a very im- 
 portant factor. If we turn back a few pages 
 we shall be reminded that bargains or con- 
 tracts with groups of the Sorel-Lenine-Trotzky 
 variety are not undertakings in free govern- 
 ment, but are means, instead, for extending 
 and augmenting the power of a group deter- 
 mined to reign over all in brief, the contract 
 is a mere stepping-stone to imperial power. 
 Why, then, says Mr. Employer, shall I, though 
 still in my senses, feed the tiger who is ready
 
 What Is the Next Step? 101 
 
 to destroy me ? Moreover, since the union you 
 ask me to deal with is an unknown quantity, 
 how do I know which I shall find when I open 
 the door ? Is it to be the Lady or the Tiger ? 
 
 These are the questions which Mr. Rocke- 
 feller's creed does not answer, at least, not di- 
 rectly, but they are the questions asked by em- 
 ployers all over the country and upon the an- 
 swer to them depends American hearty acqui- 
 escence in the British policy of encouragement 
 of collective bargaining. If, therefore, collec- 
 tive bargaining is to be the basis of industrial 
 reorganization, and if we are not ready, with- 
 out safeguards, to adopt it in this country, how 
 shall we proceed? 
 
 The policy and program of the Sorel-Lenine- 
 Trotzky group is destructive of all ownership 
 even the pianos, the pictures and the clocks 
 of the workman are not safe. Any one who 
 saves enough to buy a Liberty Bond becomes 
 thereby a member of the bourgeoisie. And 
 the worker in the shipyards who bought a bi- 
 cycle or a Ford or a little home for himself and
 
 IO2 American Labor Policy 
 
 his family is worse than a bourgeois he is a 
 plutocrat. Of course, ultimately, there is no 
 place in the American sun for such a philoso- 
 phy. It cannot survive. But it can be made 
 to thrive if we fail to discriminate between the 
 proper use of collective power and the im- 
 proper use of it. England, France and the 
 United States had to meet this situation during 
 the war. The Sorel-Lenine-Trotzky groups 
 were all against the war. Every chance they 
 got they threw monkey wrenches into the war 
 machinery. But they failed. Why? The 
 liberal statesmen in power in all three countries 
 frankly and openly joined hands with organ- 
 ized labor. In this country, it is said in jest, 
 but not wholly without truth, that it was not 
 the President's Texan friend, the Colonel, but 
 Mr. Gompers who constituted the Third House 
 at Washington. And Mr. Gompers, let it be 
 said to his credit, delivered the goods. With- 
 out the hearty cooperation of the American 
 Federation of Labor, the productive machinery 
 of the nation could not have been kept in con-
 
 What Is the Next Step? 103 
 
 stant motion. Literally the goods would not 
 have been delivered. The intelligent workmen 
 of the country can be made conscious of the 
 new imperialistic danger organizing under red 
 banners dangerous to them as well as to em- 
 ployers. Unity can be had, upon the basis of 
 recognizing clearly the right of men to organ- 
 ize collectively and responsibly. The solution 
 is to be found in a process that will enable the 
 organization to thrive that should thrive and 
 the organization to be repressed which should 
 be repressed. To devise this process chang- 
 ing the figure is to find the anti-toxic serum. 
 The organized community has the power to 
 regulate all private organization; it can re- 
 quire corporations to secure a license to do 
 business ; it can require co-partnerships to reg- 
 ister. Not the full and complete exercise of 
 this power to regulate corporation and associa- 
 tion existence, but a very limited use of it will 
 suffice. Let collective agreements be made 
 freely by all trade bodies, employers and em- 
 ployees. But let them be registered with a
 
 104 American Labor Policy 
 
 National Labor Board (or Industrial Council) 
 made up of men acceptable to organized em- 
 ployers and organized labor. // approved by 
 the Board, let them have the validity of legal, 
 binding obligations, with power of enforce- 
 ment and relief to either party when injured 
 vested somewhere, if not in the courts, then 
 in some new tribunal created for the purpose. 
 Let the organized community, thus acting 
 through agencies of free selection working 
 democratically, if you please, put its stamp of 
 approval upon collective bargaining where it 
 is in the interest of the community and its 
 stamp of disapproval where it is against the 
 interest of the community. This process will 
 bring into sharp public outline the nature of 
 the organization. Does it observe its obliga- 
 tions? Is it striving for imperial power to 
 overturn government ? Or is it honestly seek- 
 ing to improve the working conditions of men, 
 seeking by juridical and parliamentary process 
 to bring about a better industrial condition? 
 If it proves that it merits confidence, it will
 
 105 
 
 grow stronger. If it proves to be an anti- 
 social body, it will meet the repressive power 
 of the organized community, operating through 
 agents selected by workers and employers. 
 
 This means a frank, open, immediate align- 
 ment with the American Federation of Labor 
 and in these days of "open diplomacy" the 
 terms may be stated publicly. 
 
 The employers of the country to organize in 
 all industries. The employees freely to organ- 
 ize in all industries. Constitutions for all in- 
 dustries to be worked out through collective 
 agreements, but these agreements to be sub- 
 ject for validity and enforcement, not to the 
 caprice or whim or moral trustworthiness of 
 the parties, but subject always to the super- 
 vision of a National Labor Board, or Indus- 
 trial Council, so constituted as to avoid all 
 inference that either group dominates its de- 
 terminations. A definite, clear understanding 
 upon the part of organized labor and organized 
 employers that their energies shall henceforth 
 be devoted not to warring against each other,
 
 106 American Labor Policy 
 
 but as contributing forces in a democratic so- 
 ciety, combining their energies and devoting 
 them toward a constantly broadening improve- 
 ment of the productive morale of the country 
 and a fairer distribution of the product. This, 
 we have seen, includes practically the substance 
 of the entire program of the liberals in all 
 groups better working, better housing, better 
 living conditions, for the workers, of brain as 
 well as of brawn, to the end that there shall be 
 a better life for all those who labor. This, 
 then, is the democratic law and order para- 
 phrasing the President the establishment of 
 an organization of peace which shall make it 
 certain that the combined power of the entire 
 community will check every invasion of right 
 and serve to make peace and justice the more 
 secure by affording a definite tribunal of opin- 
 ion to which all must submit and by which 
 every industrial readjustment that cannot be 
 amicably agreed upon by the peoples directly 
 concerned shall be sanctioned. If we leave 
 to contending parties the making of the con-
 
 What Is the Next Step? 107 
 
 tract, but insist that after it is made it shall be 
 observed, we shall be doing justice to both. 
 The employer who violates the contract can be 
 subjected to the power of the community; the 
 individual worker who, or the organization of 
 workers which violates the agreement can like- 
 wise be subjected to the power of the com- 
 munity. That branch of organized labor 
 which does not believe in the overthrow of so- 
 ciety, but believes in the steady and orderly 
 improvement of the conditions of labor, can 
 join hands with organized capital. This is a 
 platform upon which both can stand together. 
 That platform contains these planks : 
 
 1. Agreements voluntarily come to between 
 organizations of employers and organizations 
 of workpeople shall be validated by law and 
 shall receive support in their enforcement from 
 all the legal agencies of Government. 
 
 2. Machinery shall be set up by which either 
 party may secure redress in the enforcement of 
 such agreements. 
 
 3. Free opportunity shall be accorded or-
 
 io8 American Labor Policy 
 
 ganized labor and organized capital to come 
 to such agreements, and they shall be encour- 
 aged in the process by the knowledge that such 
 agreements, when made, will be legally en- 
 forceable, and if not made the arbitrary party 
 will be rigorously dealt with by the community. 
 
 4. Those who break their contracts will be 
 as those who break their treaties the enemies 
 of organized society to be dealt with through 
 the combined power of the nation. 
 
 5. Thus only can we destroy arbitrary 
 power anywhere capable "separately, secretly, 
 and of its single choice" to disturb the indus- 
 trial peace. Thus shall we afford opportunity 
 for the gradual ending of industrial clashes. 
 
 Upon such a platform Mr. Gompers could 
 assure the leaders of labor union opinion that 
 the power of organized labor would be in- 
 creased; that its members would become legion; 
 that instead of representing but a small per- 
 centage of the labor of the country, it would 
 represent substantially the larger percentage 
 of the whole. Mr. Rockefeller could assure
 
 What Is the Next Step? 109 
 
 the employers of the country that the provi- 
 sions of the collective agreements into which 
 they would enter had some reasonable expec- 
 tation of enforcement, and that in the recog- 
 nition of the union they would secure the surest 
 guarantee of the observance of standards 
 throughout their industries. 
 
 Standing upon such a platform, both Mr. 
 Gompers and Mr. Rockefeller could assure the 
 community that through a combined program, 
 the right to review unjust exercise of power 
 either in the hands of the employer or in the 
 hands of the worker, there would come about 
 a reorganization of the productive morale of 
 the country and the energy now expended in 
 efforts to secure advantage of position or 
 power could be turned jointly to increasing 
 production and bettering distribution. 
 
 Freedom to organize, freedom to deal col- 
 lectively, security from arbitrary discharge, se- 
 curity against strikes, resulting from the free 
 interchange of opinions, but, when made, the 
 compact subject to the approval of the com-
 
 HO American Labor Policy 
 
 munity and, after approval, enforceable by the 
 community these would seem to constitute the 
 basic elements of a new democratic law and 
 order. To accomplish it we shall need to re- 
 vise our legal conceptions of freedom of con- 
 tract. 
 
 THE END 
 
 PRINTED IN THE UNITED STATES OF AMERICA
 
 THE following pages contain advertisements 
 of a few of the Macmillan books on kin- 
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 BY THE SAME AUTHOR 
 
 Law and Order in Industry 
 
 BY JULIUS HENRY COHEN 
 
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 A lawyer who knows the facts of the case from inti- 
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 and future import to all employers of labor, trades 
 unionists, social reformers and students of political 
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 " The book is a distinct contribution to the science of 
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 THE MACMILLAN COMPANY 
 
 Publishers 64-66 Fifth Avenue New York
 
 A NEW IDEA IN INDUSTRY 
 
 The Shop Committee 
 
 A HAND-BOOK FOR EMPLOYERS AND EMPLOYEES 
 BY WILLIAM LEAVITT STODDARD, A.B., A.M., 
 
 HARVARD 
 
 Administrator for the National War Labor Board, 
 1918-1919 
 
 Cloth, i2mo, $1.25 
 
 The Shop Committee is a new thing in industry. Here is 
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 TABLE OF CONTENTS 
 CHAPTER 
 
 I The Early Beginnings : History of the shop committee 
 movement in this country and Great Britain with par- 
 ticular reference to the developments since the war 
 and shop committees as a reconstruction measure. 
 II The War Labor Board Plan : Development of shop 
 committees by the National War Labor Board, de- 
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 eral Electric Co.). 
 
 Ill General Principles : An analysis of the underlying 
 principles of collective bargaining through shop com- 
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 IV The Basis of Representation: Discussion in detail 
 and with practical illustrations of the districting or 
 dividing of a plant into shops, districts, and other units 
 of self-government. Shows common errors into which 
 employers and employees fall. 
 V The Lynn Plan: Shop Committee Scheme of the 
 
 Lynn, Mass., Plant. (General Electric Co.). 
 VI Three Characteristic Plans : Describes plan installed 
 in Pittsfield Machine and Tool Co., Pittsfield, Mass. 
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 (Rapid Transit Co.). 
 
 VII Election Machinery: Similar to Chapter IV, a prac- 
 tical, detailed discussion of how to hold elections. 
 VIII Procedure : Similar to IV and VII. 
 IX Shop Committees in Action: Stories and actual inci- 
 dents related. 
 
 X The Shop Committee and the Union: Important dis- 
 cussion of this question with particular reference to 
 whether the formation of shop committees promotes 
 unions or not. 
 
 THE MACMILLAN COMPANY 
 
 Publishers 64-66 Fifth Avenue New York
 
 History of Labor in the United States 
 
 BY JOHN R. COMMONS 
 
 Professor of Political Economy, University of Wisconsin, 
 
 President American Economic Association. 
 
 With collaborators 
 
 In two Vols. 8, $6.50 
 
 " The fullest and most careful history of labor in the 
 United States that has yet appeared." The New York Eve- 
 ning Post. 
 
 " It will doubtless be generally accepted as the standard 
 history of American labor." The New York Tribune. 
 
 " A monumental study . . . this probably is the final history 
 of labor in our country during the centuries which imme- 
 diately precede our own times." The New York Times. 
 
 Labor and Administration 
 
 BY JOHN R. COMMONS 
 
 Cloth, I2mo, $J.6o 
 " Straightforward and fearless examinations of fact." 
 
 Boston Evening Transcript. 
 
 " There is not a chapter which does not contain information 
 
 which is practical and timely.'' San Francisco Chronicle. 
 " Each chapter is a book in itself worthy of careful perusal. 
 
 . . . Written in his unusual vivid and interesting style." 
 
 Post Dispatch, St. Louis. 
 
 An Introduction to the Study 
 of Organized Labor in America 
 
 BY GEORGE GORHAM GROAT 
 Professor of Economics in the University of Vermont 
 
 $j.go 
 
 "Those interested in the study of the labor movement in 
 this country will find Professor Groat's book exceedingly 
 helpful a singularly fair presentation of labor's problem." 
 San Francisco Bulletin. 
 
 " His volume is admirably adapted to giving the student a 
 conception of the swiftly changing currents in the field of 
 organized labor." New York Evening Post. 
 
 THE MACMTLLAN COMPANY 
 
 Publishers 64-66 Fifth Avenue New York
 
 The Labor Market 
 
 BY DON D. LESCOHIER 
 
 Cloth, 12 
 
 The employment problem analyzed as a market problem, 
 including a careful study of the factors which influence sup- 
 ply and demand of labor in normal times and the effect of 
 war upon the labor market. 
 
 Workmen's Compensation 
 
 BY J. E. RHODES, 2ND 
 
 Cloth, 8vo, $1.50 
 
 A history of the Workmen's Compensation movement in 
 this country, and an outline of the principles on which the 
 system is based. 
 
 War Time Control of Industry 
 
 BY HOWARD L. GRAY 
 
 Cloth, 12 , $1.75 
 
 A review of England's problem of government control 
 during the war is particularly significant in the light of the 
 present condition in our own country. 
 
 THE MACMILLAN COMPANY 
 
 Publishers 64-66 Fifth Avenue New York
 
 A 000679090 1