CHAPTER V.

ARBITRATION AND CONCILIATION.

THOUGH the terms arbitration and concilation are jointly used to name the system of dealing with labor differences by boards or committees made up of both employers and employed, these words by no means represent the same thing. Conciliation is properly applied to attempts to settle or prevent labor differences by conferences between the parties in interest, or their authorized representatives, these conferences having no power to reach a decision except as the result of mutual agreement. Arbitration, on the other hand, implies a conference and agreement, if possible; in case no agreement can be reached, then the matter at issue is to be referred for settlement to one or more persons, whose decision is morally or legally binding upon both parties. In conciliation there can be a mutual agreement only; in arbitration there may be a formal and binding judgment.

Recognizing this distinction between arbitration and conciliation, the bodies formed for applying this method to labor differences assume two forms:

I. Boards or Committees of Conciliation, which employ conciliation only,

II. Boards or Committees of Arbitration and Concilation, which employ both arbitration and conciliation.

It is to be noted that the only practical difference between these two methods is the mode of reaching decisions. In the conciliation boards or committees the

members must

themselves agree; in the arbitration boards a disinterested third party may be called in to render a decision.

There is no little difference of opinion as to which of these forms is the better. While conciliation committees, usually by informal rather than by formal and organized action, have had some measure of success, the best and most effective work has been done by arbitration boards. It will be found that even conciliation has been most efficient when connected with arbitration. It is true that arbitration recognizes conciliation and avoids the umpire if possible, thus conceding the greater desirability if not superiority of conciliation, and it undoubtedly is desirable that the parties themselves shall agree if possible, but the system would be inadequate to the demands upon it, did it not provide a method of reaching a decision in case, as frequently will happen, that the parties cannot or will not unite in one.

It will be found, therefore, as a rule, in the practical workings of this system, that arbitration and conciliation are united, conciliation dealing with minor matters or questions of detail, or those affecting the individual or small bodies of men, and even with broader questions, when decisions can be quickly reached. Concerning such questions opinions are not as decided nor as tenaciously held. But when questions arise that affect in a serious degree the whole trade or large bodies of men or large amounts of capital, then the method of conciliation-of mutual agreement—is of little avail, and the umpire is called upon.

It has been urged as an objection to the arbitration form of these boards that the knowledge that the umpire will be called upon in case of a disagreement weakens the obligation resting upon the board itself to reach an agree

ment, and makes the effort to do so a less honest one. This may be true to some extent, but it is not necessarily a disadvantage. A decision reached under the pressure of necessity may be neither just nor equitable. Indeed, necessity is never a safe counsellor in labor differences.

It is also objected to arbitration that unlike conciliation it commits the decision of these questions to a single individual, who may not have the special or technical knowledge which it is assumed is necessary to enable him to decide intelligently or justly, or if one is selected who is acquainted with the trade, it is probable that he has at one time been either an employer or an employé and consequently may be biassed. The answer to this is that the settlement of most important industrial and trade questions, involving large interests and most intricate technical details, is every day submitted through our courts of law to the decision of persons not at all acquainted with the details of the industries or trades or the questions involved. A court of law in a civil action is to a great extent a court of arbitration, and when the issue turns on questions of usage, technical practice, or complicated accounts, it is not unusual for judges to hand over the decision to arbitrators who may be acquainted with the subjects involved. The experience of boards of arbitration is conclusive that both those skilled and unskilled in the industries in which disputes are to be settled, have been most successful umpires. Sir Rupert Kettle, who has been eminently successful as an umpire in England, especially in the coal and iron industries, has no practical knowledge of these. Thomas Hughes, M. P., (“ Tom Brown") Mr. Herschell, M. P., Sir Thomas Brassey, M. P., Mr. Russell Gurney, Mr. Henry Crompton, and others, are all gentlemen who are not connected with manufacturing or mining, have no practical knowledge of their de

tails, but have been very successful arbitrators. On the other hand, Mr. A. J. Mundella, M. P., Mr. Joseph Chamberlain, M. P., Mr. David Dale, and others, who have been just as successful umpires, are or have been very extensive manufacturers, while gentlemen like Mr. Burnett have been leading unionists.

It will be found that the success of a referee will not depend upon his practical acquaintance with the trade, so much as it will upon the man himself. If he is at all fitted for his responsible position in other ways, he can get sufficient knowledge of the trade to enable him to give a just and intelligent decision. It is the duty of the members of the board, in their presentation of the case and in their arguments and statements before him, to furnish whatever information is necessary to an intelligent understanding of the question at issue.

On the other hand, as against conciliation without arbitration, it is to be remembered that these boards are composed of the parties to the issue with the views-the prejudices, even-of their classes, and usually with previously formed opinions. These must in some degree cloud the judgment and forbid impartial decisions. Further, elected as they are, as the representatives of a class, members are apt to forget, if indeed it always occurs to them, that they are not advocates solely, but judges, not elected to secure the demands of their constituents, but to ascertain what is fair and just, and get that. In many cases, where a member can lay aside his antecedent views and realize that though he represent one party to the issue, he acts for the whole trade, it will be found that he will not or dare not indicate his convictions by his vote. Now the arbitrator has no class prejudice, no previously formed opinions, nor does he represent either side, but both, and to a certain extent a third,

which is too often forgotten in these discussions-the public. He has assumed no positions from which he must recede; he has no esprit du corps to maintain. The reference to him relieves the members of the board of responsibility, and gives much greater hopes for a righteous award than does the plan which compels a decision from the board itself, burdened and hampered with the conditions and obligations pointed out. It will even be found that in many cases, where the arbitrator is called in, if he is wise and prudent, his office will be little more than to promote calm discussion, and without prejudice or a sense of obligation, to inquire into the facts, and with the authority of his position and his impartiality, make them known to the board.

It will also be found that the umpire performs a function that is by no means unimportant in relieving the members of the board of the results of their own errors or finding a way out of positions of embarrassment. In a word, that he acts as a scape-goat, upon which may be laid many of the sins of the members of the board and those they represent.

In addition to the division of these bodies based upon the distinction between arbitration and conciliation, there is still further classification, based upon their duration and the continuance of their operations. These boards or committees may be :

I. Temporary; that is, organized in an emergency, or in the face of an impending difficulty, possibly in the midst of a strike or lockout, and passing out of existence as soon as the special work they were organized to do has been accomplished or their efforts have failed.

II. Permanent and Systematic; that is, having a continuous existence and dealing constantly and systematically with all questions as they arise between employers