"outside arbitrators." They have joint arbitration or grievance committees to settle disputes and interpret the agreements. But these consist only of representatives of the employers and the union; and this they name conciliation rather than arbitration.

But this distinction between conciliation and arbitration is confusing rather than enlightening. The attempt to settle all disputes within the industry is of course the soundest policy; but it should be recognized as an attempt to use in interpreting legislation the same method that is used in enacting legislation and in creating the constitution itself. The joint conferences, which meet annually or biennially to frame trade agreements, enact the fundamental constitutional law. New questions and new problems frequently arise, however, which have to be settled before the agreements expire. In the state these are settled by statutes enacted by the legislature. Under trade union agreements they are usually settled by the joint grievance or arbitration committees, which the agreements set up; and any rules adopted by such joint committees are really industrial statute law as distinguished from the constitutional law of the agreement.

It is plain that for all law, whether constitutional or statute, arbitration, i.e., decision by a third party, is unsound from a political point of view and dangerous from an industrial viewpoint. Conciliation or compromise between the legislative bodies is the sound basis. But when the question is not one of new legislation, but merely a matter of interpreting the law already in existence, and applying it to particular cases, then compromise and conciliation may prove dangerous. Even the delay in deciding such questions involved in the method of conciliation may cause temporary disruption of the agreement-as, for example, when illegal strikes or lockouts occur, as protests against delayed decisions. In all cases, therefore, which involve merely judicial interpretation of the agreement or the rules made under it, arbitration by a third party is not only a sound policy, it is well nigh inevitable. It is in the lack of a properly developed judicial department that the constitutional government established by trade union agreements shows its greatest weakness.

Most of the early agreements provided no other judicial machinery for interpreting the agreements than joint grievance or arbitration committees consisting of employers and union representatives. If local committees could not settle the cases, appeal

was provided to the presidents of the two national organizations which entered into the agreements. Old unions like the stove molders and the glass blowers still pride themselves on having no outside arbitrators and on their ability to settle all disputes among themselves. But most unions found that sooner or later they reached a deadlock, and because of this the vast majority of agreements now provide for arbitrators to be called in when the parties to the agreement cannot adjust their difficulties.

The experience with these outside arbitrators has been quite unfortunate. They usually are not familiar with the questions they have to decide, and quite often their own decisions are unsatisfactory, tending in a direction opposite to the development of the joint agreements. This has caused employers as well as unions to distrust arbitration more than ever and to avoid it whenever possible.

The arbitrators, like the employers and the unions, rarely distinguish between arbitration which is based merely on the arbitrator's opinion of what is fair and just, and arbitration which consists of judicial interpretation, by a third party, of the law made by the employers and the unions themselves. If the arbitrator or judge has only his own sense of justice to guide him, this kind of arbitration may well be distrusted and condemned; for it is government by men and not by law. Even though the man is an impartial arbitrator instead of an employer, his rule may be just as arbitrary. If, however, the judge or arbitrator is bound by the trade agreement or the law made by the workers and employers themselves, then, if he is an ordinarily honest and competent person, his decisions will represent not his own personal ideas of what is fair and just, but the sense of justice of the management and the workers in the industry, as embodied in the laws which they have jointly enacted. And such decisions may often represent more completely the will of the parties to the agreement when they made it than their own decision would be when they have the grievance of a particular case before them.

Arbitration that is thus bound by the law of the trade agreement can not be condemned as outside interference. On the contrary, it is absolutely essential to the proper working of all such agreements; for without impartial interpretation each party itself becomes the interpreter of the law. And because the parties interpret the same agreement differently, without any

means of resolving the differences, disruption often follows when one side or the other attempts to enforce its interpretation.

Although trade agreements were started first by conservative craft unions, it was the radical and revolutionary unions in the women's and men's clothing industry which added as a permanent feature to the trade agreement judicial machinery with a socalled impartial chairman to interpret and apply to all particular cases the constitution and the laws of the industry. And for laying the foundations of this system of industrial law and developing the necessary judicial machinery we are indebted very largely to the late John E. Williams, who was the chairman of the first Board of Arbitration set up by the Hart, Schaffner, and Marx labor agreement. He functioned also under the Protocol in the Cloak and Suit industry of New York, and his decisions have not only served as precedents for all subsequent impartial chairmen, but his technique in handling cases must ever be an essential part of any successful system of industrial arbitration." While constitutional governments are thus being organized and maintained in many American industries, with executive, legislative and judicial and administrative departments, it must be remembered that only those wage-earners are given rights of citizenship in industrial government who are organized and articulate through their union representatives. Thus the government established by a trade agreement is not necessarily a democracy. It may be an aristocratic government if only a small portion of the wage-earners in the industry are organized. In fact, this has usually been the case, the skilled mechanics only being covered by the agreement, with the majority, the unskilled and semi

His method was primarily that of a court of equity rather than a court of law; but, though acting as a judge, he functioned as the administrator of the law as much as its interpreter. In other words, he saw the duties of industrial arbitrators as much the same as those of a Workmen's Compensation Board or a Public Utilities Commission. Their functions are quasi-judicial, partaking both of a court and an administrative officer. He would not decide cases merely on the merits of the briefs or arguments of the parties, for it would not help the industry or either party to have the other party lose a case if it was right but happened to present its case poorly or had its arguments wrong. He would make investigations on his own initiative, get all the facts in the situation, and then decide on the basis of those facts regardless of what might have been presented or omitted in the argument of the case. In making these investigations he often consulted each party separately and in confidence. He found it necessary to do this to get the real truth in industrial cases, which as in ordinary law cases are often hidden by the trial. But it was also necessary at the same time to retain the confidence of both parties in his honesty and impartiality. He was able to accomplish both these things; and thus he laid the basis for a successful industrial jurisprudence.

skilled, left out. A strong employer has sometimes used these unorganized people against those who have achieved citizenship to destroy the industrial government and set up his absolute rule again. This happened in the steel industry when the agreements with the skilled mechanics were broken, and unskilled, unorganized workers under guidance of foremen were used to do the skilled work. And in this we have but repetition of the Tudor Kings of England using the common people against the nobles to reestablish absolute monarchy.

Such reversals, however, are only temporary. Soon the movement for a parliament and a constitution is resumed again, with the lower grades of workers included in the movement, as it was in the recent attempts in the steel and packing-house industries. And sooner or later constitutional government with a wider basis of citizenship in the industry is established. At first the tendency even under such a more democratic constitution is to give the skilled wage-carners, and those in strategic positions, more rights and greater privileges than the masses enjoy; but gradually the pressure of the numbers of unskilled establish equal rights before the law; and then the movement continues, all the wage-earners together as the Commons in industry getting more and more rights and power at the expense of the Lord of the industry. This, however, is a very slow process analagous to the years and years it has taken to extend political suffrage until every adult may have a voice in the state.

3. DEVELOPMENT OF CONSTITUTIONAL LAW IN INDUSTRY

We come now to the particular laws that are being developed under constitutional governments that have been set up in various American industries."

When we want to study American constitutional law, we go not to the formal written constitution, but to the decisions of the highest interpreting authority, the United States Supreme Court, to tell us what the law really is. Similarly, the formal trade agreements between employers and unions throw little light on the real nature of the government and its powers, or the rights and privileges of the people within its jurisdiction. For this we have to go to the highest interpreting authorities.

"Here, too, it is not conclusions of research that we offer, but merely examples of the kind of material that may be found and the light they throw on the problems of labor and industrial management.

While most of the decisions of joint arbitration committees and impartal boards of arbitration are written down, little effort has been made to collect these decisions, or to digest and analyze them for the development of the law that they might show. This is a work to which graduate students might very profitably devote their doctors' dissertations. Fortunately for our purposes, however, there has recently been issued in mimeographed form a digest and classification of about a thousand decisions. made by the judicial authorities set up by the agreements in the men's clothing industry of Chicago, of which Professor Millis of Chicago University is the chief justice. Since we are merely citing examples and not making an inductive study, most of our cases will be taken from this codification.

The first question to be considered in all governments is the scope of the government.. Whom and what does it cover? Just as the power of the federal government of the United States over certain activities of citizens of states was questioned in our early history, so the power of the government set up by the agreements in Chicago over certain individuals was questioned early in its history. An employer refused to grant certain wage increases to label sewers and girls who sew on temporary tickets known as "jokers," claiming that these girls do not come under the agreement. The Trade Board which is the court of original jurisdiction ruled, however, that

"....the Agreement covers all direct labor involved in the manufacturing process, that the groups specified in the agreement include all workers so engaged, (and that the joker sewers) were weekworkers in the tailor shops and as such were entitled to an increase." (Case No. 4.) Of label sewing the Board said: "This work is part of the productive work required to produce the garment as ordered.... The character of the work, not the pay roll, vacation privileges, or place of work is decisive." (Case No. 15)

On the other hand, in a later case, (No. 388), the Board ruled that the office force and the stock keepers are outside of the agreement, and the law of the agreement may not be applied to them.

Perhaps the most important of this class of cases is a ruling which interprets the preferential shop clause of the agreement to imply that non-union workers as well as union members are covered by the agreement. If the occupation or operation is within the jurisdiction of the union, the Trade Board said, the wages and conditions established by the agreement apply to both non