Problems for an Impartial Chairman: From the Docket of an Industrial Judge
IT was my first case. A written complaint from the Rochester Clothing Workers’ Union alleged that one Romanelli, — the name is fictitious, — an ‘under-presser,’ had been unjustly discharged and requested that he be reinstated, with pay for lost time. I read it and wondered what to do next.
‘Mr. Chairman,’ said the Italian business-agent of the union, who appeared as counsel for Romanelli, I think the labor-manager ought to tell why he discharged this man.’
‘But this is the union’s complaint,’ said the labor-manager, who represented the employer, ‘and I think the union ought to state first why it took up this case.’
‘Well,’ I said, ‘we have n’t any rules of procedure yet. I suppose we shall have to prepare a set of rules. But let’s not be technical. The idea, as I understand it, is to get at the facts in the case and then decide what is the best thing to do. The agreement between the manufacturers and the union provides (reading): —
‘The full power to discharge and discipline remains with the employer; but it is understood that the power should be exercised with justice and with due regard to the reasonable rights of the employee, and if any employee feels that he has been unjustly discharged he may appeal to the tribunal provided for, which shall have power to review the case, and its decision shall be binding on the parties.
‘All I am interested in is to find out the reasons for the discharge, and then I must try to decide the case in accordance with this provision of the agreement. Since it is the union that has filed the complaint, suppose you tell us, Mr. C-’ (the union business-agent), ‘what steps have been taken to get the case adjusted.’
‘We have gone through all the steps required by the agreement,’ Canswered. ‘When Romanelli was notified of his discharge, the shop chairman — the elected representative of the workers in the shop — tried to get the labor-manager of the plant to reinstate him. But the labor-manager refused to do this. The shop chairman then notified the union. I was sent over to investigate, and I found that Romanelli was perhaps a little thoughtless, but he did not do anything serious enough to warrant discharge. I had several conferences with the labor-manager, trying to convince him of this. But he seemed to have his mind made up, and when I found I could n’t do anything with him I filed the request for a hearing and reinstatement. I think it will be better for the labor-manager himself to explain to you why he wants to get rid of Romanelli.’
‘All right. Mr. V-, will you tell us why this man was discharged?’
The labor-manager felt he must first, explain wherein the business-agent’s statement was not entirely correct: ‘I did not have my mind made up. I even offered to put the man back to work, after a short suspension, but I proposed to transfer him to another shop. This the union would not agree to. Now the man has been out of work for three weeks, and they want us to pay him for all that lost time. Since they did not accept my proposition at the time that I made it, I have withdrawn it, and I don’t think I ought to be held to it.’
Then he went on to explain the circumstances of the discharge.
‘This man is an under-presser — that is, he presses seams and linings in the process of manufacture before the garments are finished. He stands at one end of a row of pressing machines, and just opposite him sits an elderly woman who does felling by hand — a “finisher,” we call her. This woman is a devout Roman Catholic, and Romanelli, who I suppose was brought up in the same church, ridiculed her religion for the amusement of his fellow pressers. Every once in a while he would take the sponge that he uses in his pressing, dip it in water, and squeeze it over her head with remarks that he was blessing her with holy water. He is evidently one of these fellows who have recently become freethinkers, and he delighted in saying shocking things to her about her church. The woman complained to us, and when we found her charges to be true we discharged him.'
The union’s defense of the man and his own testimony did not deny that he had done these things, but maintained that they were done in a friendly, joking spirit, and that no offense or insult was intended.
I
What should an industrial judge do with a case like this? To think it over I adjourned the hearing until the next day. My only clue to a decision was in the employer’s proposition to put the presser back to work in another shop. That seemed to me quite reasonable; but this proposal had been withdrawn. I therefore called the labor-manager in for a conference, told him I thought his offer was a very fair one, and asked him why we could n’t settle the case on that basis now, without a formal decision. I would not order back-pay for the time the man lost, but would make the loss of pay and the transfer to another shop the penalty for the man’s offenses.
The labor-manager answered that, even if he would agree to this, the union would not accept it. He preferred to leave the case entirely to my decision. I gathered that he would have no serious objection if I could induce the union to accept the proposition; or, failing this, he would probably not consider any injustice done to the employer if I made my decision along these lines.
Then I called in the union representative and asked him why he did not accept the labor-manager’s proposal. He said the employer admitted the man was a good presser. Romanelli was young, and perhaps a little foolish; but he had had his lesson, and would not repeat the offense. Therefore he thought the man ought to be reinstated in his old job. The union could not accept the employer’s proposition, but would be willing to settle the case out of court without pay for the time lost by the presser, if he were given back his old job.
There was nothing to do then but to make my own decision. The next day I delivered it orally, promising to write it out later. I said: ‘The man is guilty of an offense for which, under the agreement between the manufacturers and the union, suspension is justified. But a permanent discharge seems too severe a penalty, considering that he has a good work-record, and seems to have learned a lesson from this experience. He is young and has been thoughtless, and will probably not repeat the offense if he is transferred to another shop. The three weeks he has lost are therefore to be considered a period of suspension without pay, and the employer is to reëmploy him now, but in another shop.’
Both the union representative and the labor-manager seemed to have expected this decision, and apparently were satisfied. I told the former to translate what I had said to Romanelli, who could not speak English. When this was done and I was about to adjourn the meeting, the presser began to talk loudly and volubly in Italian.
‘What is the matter?’ I asked. ‘What is he saying?’
‘ He says,’ answered the union representative, ‘that he does not want that kind of decision. He could have had that before, and not have lost so much time. He wants to know from the judge “Am I right or wrong:" If he is right, he says he should be reinstated with pay. If he is wrong he should be discharged.’
That gave me a little shock. There flashed through my mind the idea that maybe I had not done my duty properly. Perhaps the duty of a judge is to decide between right and wrong. But what is right in a case like this, and what is wrong? I thought a little, while everybody stood around waiting. Then I said: —
‘Tell him that my decision is that he was neither right nor wrong. He was just foolish.’
II
The shirt-makers of New York had an agreement with their employers. It provided two sets of piece-rates. For the various operations on cotton shirts there was one list of prices, but for the same operations on silk shirts there was another list of considerably higher prices. After this agreement was made a new material came into the trade. ‘English broadcloth,’ it was called. It was one hundred per cent cotton, but it looked and felt like silk. Naturally enough the workers wanted silk prices for work done on this material, and just as naturally the employers desired to pay the cotton prices. Who was right and who was wrong?
‘Mr. Chairman,’ said the representative of the shirt-manufacturers at the hearing, ‘the only question involved in this case is whether a contract with these people is really a contract which they are under obligation to live up to. We jointly entered into an agreement which states, in as clear terms as can be desired, that cotton shirts shall be paid for at certain stipulated rates. This English broadcloth is pure cotton. No one can doubt it. Here is a little magnifying glass which is used in the trade to detect the real character of the fabric. Here is some of the material, and you can see for yourself through this glass that it is pure cotton. What more is there to be said about the case? There is the contract fixing prices for cotton shirts. There is the material which is cotton and nothing else. The only question in this case is to make these people live up to their contract.’
‘But we don’t work with magnifying glasses,’ answered the manager of the shirt-makers’ union. ‘We work with sewing machines and pressing irons. This English-broadcloth material slips under the machine and wrinkles in pressing exactly as silk does. It is harder to work on, just as silk is, and that is one reason why higher piecerates were fixed for silk. Another reason is that all silk shirts sell at higher prices to the consumer. There is more profit in them, and the manufacturers can afford to pay the workers more than the very low rates they pay for work on cotton shirts. They sell these broadcloth shirts at silk prices — or almost at silk prices — and we think the intent of the agreement is clearly that the workers should get silk prices under such circumstances. It is the manufacturers, not we, who are trying to violate the agreement; for it is plain that the same reasons that justify higher piece-rates for silk also justify higher rates for this broadcloth.’
By the time I was called to decide this case I had already learned that troubles between employers and wageearners rarely arose because either wanted to be unfair or unjust to the other. The disputes came rather because it was so difficult to tell what justice and fairness required as between the two. But how shall the ‘impartial chairman,’ as the industrial judge is usually designated in the needle-trades, determine the justice of the conflicting claims for silk and cotton piece-rates? No statute exists embodying the common sense of justice of the people in such industrial affairs; and there is no common law formulated from decisions of judges on the basis of past practice. Perhaps, though, there are customs in the industry itself, I was led to query — common rules by which a decision might be made.
This thought was suggested to me by testimony in the case to the effect that a number of employers had been making broadcloth shirts for several months and had agreed with their employees on a basis of payment. The attempt to elicit further information about these arrangements, however, raised vigorous objections from the manufacturers’ representative. ‘Expedience or necessity,’ he said, ‘ may have led some members of our association to agree with their employees on certain piece-rates; but those have no bearing on the present case. We want to know what the agreement requires us to pay.’ But the impartial chairman insisted on inquiring further, and discovered that a substantial number of employers had voluntarily agreed to pay the silk prices for broadcloth-pressing. For the machine-operating, however, they insisted on applying the cotton prices. After these facts were established, the manufacturers freely admitted that pressing the English broadcloth was as difficult as pressing silk, and they were quite willing to pay the silk rates for pressing. Their main concern was to get a decision on the rates to be paid for machine-operating.
We were making progress. Half of the case was settled. But what were we to do about the rest?
‘Is it customary in the trade,’ I asked, ‘to classify the same material as silk for one purpose — say, pressing — and as cotton for another purpose, such as operating by machine?’
They could not toll me offhand what the practice had been, but they did not see any reason why such a variation in classification could not be made, if the work of pressing involved difficulties that were not present in the machine-operations.
‘Perhaps not,’ I said, ‘but let us make an investigation of what the custom has been in the trade with respect to all the materials that have been used up to the present.’
The investigation revealed the use of a wide variety of materials, but invariably, when a material had been classified as cotton or silk for pressing, it was classified as the same for operating. There was no exception to this rule.
‘ Perhaps an exception ought to be made in the present case,’ it was necessary to explain in making the decision.
‘ But no impartial chairman can be wise enough to enact new rules or laws governing wage-relations in the industry. That would be like judge-made law in the state, against which all our ideas of justice in government rebel. In the absence of a clearly formulated statement in your agreement as to what the law or rule should be, the impartial chairman must look to the usages, customs, commonly accepted practices, for guidance in making decisions. This is the industrial common law, which contains the “wisdom of the industry.”No judge’s conscience can be trusted to be wiser than this. And until the citizens of the industry-that is, the employers and the wage-earners-deliberately change the common practices by a definite provision in the agreement, as legislatures make changes in the common law by statutes, the impartial chairman must apply those customary rules. Since it is admitted that the silk prices are to be paid for pressing, and since the custom has invariably been to pay one set of piecerates for all operations on a given material, whether done by sewing machine or pressing iron, therefore the decision must be that the silk piecerates are to be paid for t he operating as well as for the pressing of the English broadcloth.'
III
A member of the Typographical Union of New York — the ‘Big Six’ — was discharged for incompetence. The union demanded his reinstatement on the ground that the charge was unjustified and that the employer desired to discriminate against him because of certain union activities in which he had been engaged. In accordance with the agreement between the New York Employing Printers’ Association and the Typographical Union, a Joint Committee on Discharges, consisting of three employers and three union-members, heard the case. The committee reached a substantial agreement on the facts. The charge of incompetence was not proved. Neither was it proved that the employer was discriminating against the printer for union activity. Their findings were as follows: —
‘ While neither of these charges was proved, the evidence did show that the man had been getting quite careless and slack in his work, so that it may be said he was not working satisfactorily. On the other hand, the evidence was also plain that the management of the shop was quite loose and that the foreman was inclined to overlook the slack and careless methods. The employer may therefore be said to be partly responsible for the unsatisfactory work. . . .’
Although the representatives of both parties agreed on this statement of the facts, they could not agree on the action to be taken in the case. The employers desired the discharge to stand. They proposed a written decision exonerating the man from the charge of incompetence and reprimanding the employer for partial responsibility for the man’s careless work. The union representatives insisted that, since both the employer and the worker were guilty, it would not be fair to discharge the one and let the other off with a reprimand. They proposed that the worker be reinstated, and both be reprimanded. Since neither side was willing to recede from its position, the agreement between the union and the employers required the selection of an impartial chairman of the committee to decide the case. I was chosen for the place.
How much more guilty was the printer than his employer? How make the punishment fit the crime of each? I asked both parties at the hearing to direct their testimony and arguments to answering these questions.
‘Mr. Chairman,’ said the employer, ‘ not only has this man handled his work incompetently, but he even raffled off bottles of whiskey in the shop.’
’I object to that testimony,’ protested the representative of the printers’ union. ‘This is a new charge, which could not have been a reason for the discharge, because the employer did not know anything about the raffling of liquor when the discharge took place. He discovered it only yesterday. I ask that you rule out all testimony on that question.’
The judge was in a quandary. From a legal point of view the union was of course entirely right, and the testimony about the liquor should be excluded. But from a business point of view it seemed clear that the man ought to have been discharged. Should I make a ruling that the testimony must be excluded and that I could not consider it in the case?
The union representative evidently noticed that I was troubled, and guessed the reason, for he said: ‘Don’t worry, Mr. Chairman. They expect you to rule out that testimony. They know that everybody in the shop, even the foreman, took chances on those raffles.’ And all the representatives of capital and labor united in laughter.
It was plain, then, that a technical decision based on the amount of guilt on each side would be of little benefit either to the employer or to the union. It was impossible to say how much more guilty the worker was than the management. The important thing for both was that the conditions in the shop should be put on a proper basis. This could not be done if the discharged man were reinstated. Neither would conditions be likely to improve if the employer went free of any penalty for his negligence and inefficient management of the shop.
I therefore suggested that the committee agree on approving the discharge, but that the employer be ordered to pay the man two weeks’ wages. This pay would serve as compensation for time lost by the printer while he was under the charge of incompetence, which might have prevented him from getting another job. The financial penalty would also be more likely to impress upon the employer the need of removing the conditions that encouraged inefficiency among his employees.
The idea seemed to impress the committee favorably. But both sides were afraid of establishing a precedent for future cases — a new rule with new customs for handling discharges, to which employers and workers would soon be appealing as their right in similar cases. The employers asked for an adjournment so that they might caucus. Then followed informal conferences, and both parties wanted assurances against establishing a precedent the full meaning of which they could not foresee. Finally my suggestion was accepted unanimously, and I wrote in the decision: —
The Joint Committee desires to make it plain that it is laying down no general principle or precedent by which discharges are to be approved or reversed. Every case must be decided on the basis of the facts in that particular case, and it is unlikely that the facts in any two cases will be exactly the same. All the committee intends to do in the present decision is to decide on what is the best action to take considering all the facts and all the circumstances that have been brought out in the case.
IV
The Amalgamated Clothing Workers of Rochester filed a petition in behalf of a woman — a sleeve-maker — who claimed that she was doing as much and as good work as the men on the same operation but that her pay was three or four dollars a week less than the wages the men were getting. The petition asked that the employer be ordered to pay the woman worker the same weekly wage as the men, in accordance with the rule of the agreement that there should be equal pay for equal work.
Before the hearing, the chairman had an opportunity to look over the production records of the sleeve-making section, and found that the woman was turning out as much work as the men. If, then, the quality of her work was up to standard, she would be entitled to the increase in pay that she asked. At the hearing the employer made no complaint about the quality of the woman’s work, contending that she had been employed in the shop only a few months and that her pay had already been raised once or twice. But the union’s representative, instead of producing the records and presenting witnesses to testify to the quality of the work, — as was customary in such cases, — made only a half-hearted plea, and had neither the woman nor her shop-chairman present to press the complaint. He fumbled frightfully in handling the case.
Whatever may be true in the civil courts, the industrial court maintained by the Rochester Clothing Industry could not decide against a complainant simply because the facts or the law in the case were not properly presented at the trial. A case must be decided on its merits, not on the ability of the representative of either party to present and argue it. Nevertheless, the judge could not very well decide the case in favor of the woman worker, when all the evidence presented at the hearing favored the employer. A temporary adjournment was therefore ordered until the next day.
After adjourning the hearing, I called the union representative aside. ‘See here, Mr. S——, what is the matter with you? According to the production records I have seen, this woman is entitled to the increased wages she is asking. But if you don’t present the evidence at the hearing, so that the employer can have an opportunity to criticize it, and if you bring no witnesses and fumble your arguments, how am I to decide the case in her favor? The employer would have a very just complaint against me that I did not decide according to the evidence.’
‘I know,’ he answered. ‘But do you want me to get my head taken off? I went over to the shop to get the records and the witnesses, and to prepare my case as I usually do. But the shopchairman could not give me any information. He seemed to be afraid of something and left me on some excuse as soon as he could get away. Then I started to talk to the woman herself. It seems she is married, and I had no more than asked her a question when her husband, who works in the same shop, came running over, just as mad as he could be. “Hey!” he shouted at me, “what are you trying to do? Get my wife more money than I am earning? You better look out or I’ll knock your block off! ” And he brandished a pair of shears. I left the shop as fast as I could.’
Apparently this union business-agent considered the maintenance of peace in the family more important than justice in the relations between employer and employee.
V
A Rochester clothing-manufacturer installed steam-machines for ‘off-pressing’ coats — that is, final pressing — in one of his shops. The hand off-pressers, about fifty in number, refused to work on the machines, and all walked out of the shop. This was a ‘stoppage,’ and all strikes and stoppages were outlawed during the life of the agreement already existing between the union and the manufacturers. The manager of the union therefore ordered the pressers back to work immediately. If they had any grievances, he told them, their agreement provided means of hearing and redressing them through the impartial chairman. By quitting work they were violating the agreement, and neither the union nor the chairman could take up their case.
The pressers demurred; but, after being out a day or two, they went back to work and filed a complaint that the employer had violated the agreement by substituting machines for hand-pressing without consulting the pressers and the union. At the same time the employer filed a complaint asking that the pressers be disciplined for engaging in a stoppage, contrary to the agreement.
All the pressers came to the hearing, which was held after working-hours. The impartial chairman’s courtroom would accommodate comfortably only about forty people, yet more than sixty crowded into it. There was tensity in the atmosphere. The employer and his labor-manager felt that the action of the pressers was entirely unjustified, and that they had been caused unnecessary losses by the stoppage. The workmen, knowing they were wrong in the matter of the stoppage, were all the more incensed at the employer, and at the machines, which they feared threatened their livelihood.
‘Since there can be no dispute about the stoppage,’ I said, in opening the hearing, ‘we will dispose of that issue first. The agreement prohibits stoppages. It also provides means of redressing all grievances, and particularly in the matter of improved machinery it is very clear in stating how the workers’ interests shall be protected and what the employers’ rights and duties shall be. The usual punishment for such an infraction of the agreement will therefore have to be given. The men will make up, by working overtime, the production lost to the employer on account of the stoppage, and they will do this overtime work at straight-time pay.’ (Under ordinary circumstances the pay for overtime was at the rate of time and one half.)
‘Now we will take up the off-pressers’ complaint.’
But this punishment, which most of the men knew was coming, seemed to increase their anger. Their complaints against the employer for introducing the machines became more vehement. One after another they expressed their opposition to the machines in ardent protests, voicing their fears, but giving little consideration to the protection that the union agreement guaranteed them. The employer’s labor-manager was not slow in calling attention to this.
‘Mr. Chairman,’ he said, ‘it seems to me these men are entirely unreasonable. What are they afraid of? No man has lost a job on account of the machines. No man’s wages were reduced. The agreement gives us the right to introduce labor-saving machinery, and we are not doing it at their expense. On the contrary, they get some of the benefits, too, for we relinquish part of the savings due to the machines in order to protect their interests. Hand-pressing is skilled work, which takes years to learn, but men can be broken in on the new steam-machines in a few months. At best the latter is but semiskilled work, and we could easily get men to do it for $25 or $30 a week. But we do not propose to discharge any of our hand-pressers and hire other men at lower wages. Every one of these pressers is to be given work at one of the machines, and he will continue to receive his present wages of $41 a week. True, on the machine each man will have to press more coats, and therein will be our saving; but we divide some of this gain with him when we continue to pay $41 for work that we might get done for $30 or less. This is required of us by the agreement, and as long as it is in force we propose to abide by it. After the agreement expires, perhaps, we may take up the matter of getting the less skilled work on the machines done by lower-paid men.'
One of the pressers, who had not spoken before, arose in the back of the room and said: —
‘Mr. Chairman, hear that? I want ask question!’
He was tall and thin, with black hair, hollow cheeks, and flashing black eyes. He wore no coat, his shirt was open at the throat, and he had no collar. He spoke in broken English.
‘I want ask question,’ he repeated. ‘When we break agreement by making stoppage, you fine us. That’s right. I understand agreement. All right. If we break boss’s machines we get arrested. That his property — no must break. That all right, too. But I want ask Mr. Chairman why boss can break up my trade and he no get arrested. I take five years to learn trade — that my property. Now boss he come along and say no more “off-presser” press whole coat. He break up with machine. One machine press sleeve, one press collar, another press back, another press front. Anybody can do that. Get man from street, $30 a week, maybe $25. No need off-presser any more. My trade all smashed to pieces. Boss do it, but he no get arrested.
‘I know, Mr. Chairman, you no can do nothing. Boss keep all pressers and pay scale $41 like agreement says, then we must work on machines — you decide like that. But labor-manager say afterward — maybe one year, maybe two years — he get men with no trade and pay them $25 a week. I want, Mr. Chairman, you explain why boss not get arrested because he break up my trade — my property.’
VI
Reading an essay recently on ‘The Conflict between Labor and Capitalist Historically Considered,’ I came to this concluding paragraph: —
There has been no wrong, nor misery, nor injustice recorded here that has not sprung from ignoring the fact that the capitalist and the laborer are, after all, brethren. Let us restore the Brotherhood, and the problem is solved.
But what does brotherhood require in a case like that of the pressing machines? To guarantee that men will not be discharged because of the introduction of machinery and that their wages will not be reduced — as the Rochester Clothing Agreement now guarantees — would seem like brotherhood to the millions of wage-earners who have no such protection. In fact, with respect to labor-saving machinery, this is the protection for which most unions are fighting. Neverthless, the Rochester pressers did not think that justice was done them. And who will say that the presser’s question in the last case did not present a real grievance? Who will give him a satisfactory answer?
We protect investments by depreciation funds against losses from new devices and new machinery which render the old equipment obsolete. Electric light and power companies insist that they must have a high obsolescence-charge in their operating-expenses, because inventions are so rapidly making out-of-date the equipment of their power houses, into which the investors’ money has been put. Our courts and public commissions have upheld this contention and the obsolescence depreciation fund protects the investors’ property when the equipment has to be scrapped. Why, then, should not the presser’s property in his trade be equally protected?
One answer is given by the manufacturers, who find that they cannot afford to use improved methods of production and labor-saving machinery if they have to keep all their old employees and continue to pay them the higher wages of skilled hand-labor. If they are compelled to do this, they can make but little reduction in price to the consumer, there is less buying than there might be under improved methods with lower costs, and the wage-earners, as well as the employers, have less work.
But another answer is given by our state and municipal governments, and by our courts, when they refuse to permit motor-buses to compete with street and interurban railways. As with the skilled presser whose trade is destroyed by the steam-machines, electric railways are threatened by the improved methods of motor-transportation. Before these improved methods can be used to compete with the old, however, a certificate of convenience and necessity must be secured from the state or city government; and in order to protect the property of the investor these certificates are often refused. Motorbuses are thus in many cases kept off the roads and streets, and the inferior service of electric railways is maintained, for a time at least. It is well to remember that a workman has as much reason to fear the machinery that threatens the trade by which he earns a livelihood as the railroad or electric company has to fear motor-bus transportation.
Too simple, then, is the answer that brotherhood will solve the problems of the relation between employers and wage-earners. What are ‘brothers’ in such relationships supposed to do? Too simple are the remedies that tell the employer to deal fairly, justly, and honestly with his employees, and tell wage-earners to give an honest day’s work and be fair and just to their employer. What do honor, fairness, and justice require of us in cases like those described above? Equally good and honest people were on both sides of those cases, and equally good and honest ‘impartial chairmen’ might have rendered quite different decisions. Moreover, I have no doubt that among the readers of this paper there will be many opinions as to the decisions that should have been made in these cases to ensure exact justice.
However bitter the conflicts between employers and wage-earners, I have found it rare indeed that anyone concerned in them consciously wanted to do the wrong or unjust thing. The conflicts came because it is so difficult to tell what is right in these industrial affairs. The standards by which employers, managers, wage-earners, investors, and consumers measure industrial justice are not the same. And until a common standard is attained none of us can be sure that he knows what is right and wrong in labor relations. But out of the hundreds of disputes decided every day in many of our industries, as the cases above were decided, a common standard of industrial justice is slowly being achieved.