had obtained some knowledge of the business, he would be permanently employed and that he make application to the union and become a member. Plaintiff did not at once apply, but waited until after the union had protested his employment on the ground that he was a nonunion man. Thereafter plaintiff applied and was admitted to the union. Under the operation of union rules he found himself at the bottom of a list of applicants for jobs and was told by the business agent that he could not work until his turn came. Thereupon he brought this action against the union, alleging a conspiracy to prevent his employment. The master found no evidence of conspiracy, and the Court dismissed the plaintiff's case.

In its opinion dismissing the plaintiff's action, the Court, considering the binding effect upon the plaintiff of the condition upon which employment was offered him and which he accepted, said:

"The plaintiff, whose coworkers were union men, was under no obligation to enter Adams' service under such conditions, but having voluntarily entered into the contract, which was not unlawful, he was bound by its terms."

After reviewing the facts concerning the employment of plaintiff while a non-union man, the Court said:

*

"No strike, however, had been threatened nor any intimidation practiced. The action of the defendants under the circumstances described cannot be considered as a concerted and successful scheme to prevent the plaintiff from securing employment. The course taken by the plaintiff was in accordance with the precedent condition upon which his right to employment had been rested. It is evident from the request of Adams, and the stipulation when the plaintiff entered upon his work, that permanent employment could not have been obtained even if the union had not protested and demanded that Adams should act in conformity with his agreement with the union." When the plaintiff applied for membership in the union, the application card showed his branch of the trade as that of teamster. Immediately after his admission, the business agent suggested that the word teamster be changed to sponger because the local union “had no classification as that of teamster." The plaintiff consented "in order that he might become a member and follow out his vocation for which he had made application to Mr. Adams." The change was made and accepted by the union. A membership book, which contained the

*

constitution and by-laws of the central union of which the local was a branch, was given the plaintiff. No provisions were found therein for the government of local unions except "" that each local union shall have its own by-laws * *." A vote of which the plaintiff had no notice was passed at the meeting when his application was accepted" that John G. Ryan be placed on the bottom of the list for work." The business agent informed plaintiff that he could go to work. He went to Adams' shop and worked for a couple of hours on a machine when he was called to the telephone by the business agent and informed that he could not work. The Court, considering the right of plaintiff to protest, continued as follows:

* *

*

"The plaintiff, at this time a member of the union, had complied with all requirements, and had been accepted as an employe by Adams, who had acted in conformity with his agreement with the union. If the report of the facts ended at this period, the question of the right of the plaintiff to the uninterrupted benefit of his contract, and to be protected in the enjoyment of that right without being subjected to the intentional interference of Hayes and Anderson representing the union, whereby he was deprived of employment, would have to be determined. The master, however, goes further, and reports that shortly thereafter the plaintiff had an interview with Hayes at which he endeavored to ascertain whether there were any by-laws, rules or regulations of the local union applicable to his situation and made demand therefor. But even if as we have seen there were no by-laws, the union had voted prior to the plaintiff's admission that all jobs be given out by the business agent in rotation,' and by this vote, construed in connection with the vote placing him at the 'bottom of the list for work,' the defendant Hayes had authority to act as he informed the plaintiff by placing his name 'at the foot of the work list being fourth on the list of spongers,' and that he would have to take his turn in the order of that list before he could be placed to work.' The plaintiff failed to offer any evidence that when he applied for admission, and during the proceedings upon his application, he could not have obtained full information of the earlier vote conferring upon Hayes and Anderson power to act in determining his rank and retention as a union employe on the observance by Adams of his contractural relations with it. It is immaterial that Adams had not been informed of this vote until after the plaintiff had been admitted, or that the plaintiff refused to acquiesce in the decision and brought suit. In joining the union he engaged to be bound by its rules and subjected himself to its discipline"."

Curtis, a railway engine inspector of the Panhandle & Santa Fe Railway Co. at Amarillo, was laid off. He came to Ogdenberg, N. Y. Services of an engine inspector were again required by the railroad, and in accordance with seniority rules Curtis was entitled to re-employment before any one else. The railroad therefore wired him at Ogdenberg, and he replied accepting the employment. Shortly thereafter he reported at Amarillo, but was refused employment. He brought action to recover his expenses in journeying to Amarillo and for wages which he would have received for a reasonable period of time less a small amount which he had been able to earn at such work as he could find. The railroad testified that under the national agreement then in effect controlling plaintiff's class of employment, he should have presented his grievences first to the round house foreman; then to the general foreman; then to the master mechanic; then to the mechanical superintendent; then to the general manager of the railroad; then from him to the Railroad Labor Board. Copies of various rules and regulations were submitted in evidence.

The Court in its opinion, examined the labor sections of the Transportation Act which provides for hearings upon disputes between employes or groups of employes and the railroads, which are likely to interrupt interstate commerce, and then said:

"We take it under these provisions unless the application is made by the groups named or the Labor Board or the Adjustment Board, upon their own motion, when it is of the opinion that the dispute is likely substantially to interrupt commerce that neither Board

has jurisdiction. There is no applications alleged to have been made by either group of employes to determine the dispute in this case, and there is no proof of such application. In the absence of a request, the act of Congress does not take away the right of the individual employe to first resort to the courts to adjudicate his rights. We are impressed with the view that it was the purpose of Congress to afford a tribunal to the carriers and the organization of employes as group to adjust rules, working conditions, and wages affecting the members in their collective capacity and which are common to all. That it was not the purpose to establish a court to try the individual rights of the employe in which he alone has a personal right or interest, and which does not necessarily affect interstate commerce. Whether this view is correct or not, we think it is apparent the application must be made as provided in the statute. And in order to abate a suit it should be alleged and proven such request was made and that the claim is within the jurisdiction of the boards named in the act. This has not been done in this case. The appellee is not alleged to be a member of an organization of employes or that he is an employe, falling under the term 'unorganized.' If the latter, then the application must be by petition of not less than 100 unorganized employes. Where a party is to be deprived of his right to resort to the courts, it should appear as a general rule, we think, that he has by agreement waived that right or consented that other

instrumentalities shall be used to determine it. The act in question does not seem to us to have taken his right away or intended to do so.. He might be held to have consented if he belonged to one of the groups named which had made application, as required by the statute by his group or others, if his right is one that is embraced in the disputes which may be determined by the Board."

Atchison and others were charged with contempt for violation of an injunction enjoining the activities of railroad strikers. They admitted membership in the organizations enjoined by the order of the court and that they had notice of the order. They denied commission of the acts complained of as violations of the order and demanded a jury trial on the facts in accordance with the

provisions of Sections 21 and 22 of the Clayton Act. The government opposed their demand on the ground that: "Under our system of government established by the Constitution each department, the legislative, the executive, and the judicial, are separate from and independent of each other, and their legitimate provinces may not be invaded by the others.

"That the power to punish for contempt is inherent in the courts, and being so inherent, it is essential to and inseparable and inalienable from them.

"That this power exists independent of legislation cannot be taken away by legislation or abridged.

"That the Clayton Act, in so far as it undertakes to give one charged with contempt of court by a willful violation of an injunction duly issued by the court, a right of trial by a jury, so abridges the inherent power of the court to punish for such contempt that it materially impairs it and in such respect is nugatory."

The inherent power of the courts to punish for contempt a power which is part of their constitutional authority-was described by the Court as follows:

"Is the power of the courts to punish for the willful violation of an order duly and properly made inherent in the court, or is it dependent upon legislation? "It can scarcely be questioned in this day that such power is inherent in the courts.

66

* **

*

Section 1, art. 3, of the Constitution, is as follows: "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.'

"Section 2:

“The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority' etc.

"The language used by Mr. Justice Story in Martin

v. Hunter's Lessees, 1 Wheat. 331, 4 L. Ed. 97, discussing this third article, seems to me to set at rest any question that the inferior courts to be ordained and established were the creatures of Congress subject to have the rights of such courts inherent, when so ordained and established, abridged, or taken away.

"The question of the power of the legislative branch, to vest in a jury the right to try and decide the question whether a contempt has been committed, has arisen and been denied in a number of states."

Holding, therefore, that the provisions of the Clayton Act, if applicable to the case at bar, were beyond the power of the legislature, the Court said:

"I am of opinion that that portion of the Clayton Act giving a jury trial to persons charged with contempt in violating the injunctional order is of no force even in cases which fall strictly under said act.

"In the instant case it is extremely doubtful if these are cases falling under said act.

"These parties were not employes of the railroad at the time of the issuance of the injunction. The relation of employer and employe had been severed, and no longer existed, by the withdrawal of such parties from the employment theretofore existing.

"There is a very full discussion of this question in the case of Canoe Creek Coal Co. v. Christinsen et al., 281 Fed. 559, [4 Law and Labor 308] in which Judge Evans, District Judge, reached the conclusion that the parties were not entitled to a jury trial for the reason that it was not a question arising between employer and employe, and his conclusions seem justified.

66

66

After an analysis of the first and second volumes of the "Interchurch Report of the Steel Strike" and an examination of the documentary evidence upon which it was based and the affidavits and statements of fact published by the Report itself, Mr. Marshall Olds has written an Analysis of the Report which asserts that the authors of the Report made fraudulent use of government documents, constantly rejected evidence favorable to the employers in the steel industry, and stressed stories of outrage and suppression subsequently repudiated by their authors in the Senate investigation of the steel strike. After revealing the nature of the Report itself, Mr. Olds discusses the personnel engaged in gathering the data and preparing the report-the so-called "technical advisers" of the Commission of Inquiry of the Interchurch World Movement. This staff of technical advisers he declares was composed of professional propagandists connected with various radical organizations whose constant out

pourings are intended to undermine American industrial institutions. It is our purpose to summarize the strongest of Mr. Olds's points.

In the summary of his analysis of the Report, Mr. Olds emphasizes the following points:

1. The Report was based on evidence insufficient to sustain the conclusions. The "rock-bottom evidence of the Report as stated in the Report itself consists of 500 affidavits secured chiefly from "the mass of low skilled foreigners."

2. The conclusions of the Report are self-contradictory. The Report states that workers cannot take their grievances to any one higher than foreman, yet it presents evidence in regard to specific grievances where workers state that they did take their grievances to superintendents and general managers. The Report stated that common labor in 1919 worked 74 hours a week and earned under $1,466 a year. Under the admitted wage

rate and the admitted continuity of employment, common labor must have worked much less than 74 hours a week or have received between $1,700 and $1,800 a year. The Report denies that the strike was "plotted or led by reds or syndicalists, or Bolshevists." It shows in detail that the entire strike movement was planned by William Z. Foster with whose views and purposes the authors of the Report claim familiarity. The Report states that the steel companies in the effort to force workers to over-exertion made each wage rate just enough to meet the increased cost of living. Yet it states that wages increased 150 per cent. during a period in which official record shows that the cost of living increase was only half as much.

3. The Interchurch Report is an ex parte argument. The Report deliberately omitted consideration of wellknown facts and official data. The Interchurch Report quoted voluminously from the Senate investigation, yet suppressed all evidence from the Senate record favorable to the steel companies. The Report cites the complaint of one Colson before the Senate that while he had a good job before the war at 172c. an hour, and while he got 44c. an hour when he came back he had to wait five months for his job and then only got a disagreeable and dangerous one. The Interchurch Report entirely omits the cross-examination which reveals that Colson, a common laborer, immediately after his return from the war was given a skilled job on a crane, but was discharged because he deliberately refused to keep up steam and thereafter had to wait to get his old job back.

4. The Report resorted to insinuation and misleading language to create impressions concerning facts it failed. to state openly or argue on their merits. The Report stated that wages were not increased at a sacrifice of dividends, omitting to say that wages were increased more than dividends. The Report gives the impression that wage rates were shaved from time to time to make the workers speed production. The fact is that steel workers are paid a fixed wage with a small class of the highest paid receiving bonuses over and above their regular wages so that shaving wages would not speed the workers as in the case of a piece rate industry. In referring to workers who work 40 to 48 hours a week, the Report refers to them as workers" who work under 60 hours a week." The Report gives the impression that the United States Steel Corporation's surplus total-the accumulation of 18 years-was built in a year by stating that its surplus existing in 1918 and 1919 would pay the wages for those years.

5. In regard to the social problems involved in the steel controversy, the Report postulates its own point of view and utterly disregards vital facts upon which the opposite point of view is based, and even disregards, in some

cases, the legitimate possibility of another point of view. 6. The tables upon which the Report based its conclusion as to steel wages were deliberately falsified, and its study of steel hazards omitted data furnished by valuable government studies which state conclusions in regard to steel hazards opposed to the deductions of the Interchurch Report. The Report bases its sensational statements concerning the seven day week on a quotation taken from the United States Bureau of Labor Statistics Bulletin 218, yet states a conclusion directly opposite to that which the government bulletin itself twice plainly states as the proper conclusion from the government figures. The Report quotes government statistics to support its charge that the number of 12-hour workers is increasing. The Report's quotation, though given as continuous, is hand-picked paragraph by paragraph, taking some figures and leaving out intervening figures so that a basis is laid for a conclusion entirely inconsistent with the conclusion which all of the data available warrants. In attempting to show that the number of 12-hour workers is increasing the Interchurch Report manipulates government figures which plainly show decreases of such workers and also makes figures out of whole cloth and presents these as government figures and as showing substantially the opposite of what the actual government figures referred to do show.

7. The Report relies much upon Father Katzinki's sensational statements widely circulated as strike propaganda, alleging an "assault by state troopers upon his people as they were coming out of church" and "charging by mounted troopers upon little children as they were assembled in the school yard." Yet Katzinki under oath before the Senate Committee repudiated all the material parts of his charges and could not tell of any one he had actually seen or knew who was hurt. The Report itself states that many of its "rockbottom affidavits" were secured by James R. Maurer, President of the Pennsylvania Federation of Labor.

Turning to the circumstances which led to the writing of the Interchurch Report and its publication, Mr. Olds sets forth that at a meeting called by the Interchurch World Movement at the Hotel Pennsylvania on October 3, 1919, at which Bishop McConnell presided, a resolution was offered and passed condemning the steel companies. Immediately thereafter a motion was passed to investigate the strike. It remained for Mr. John H. Walker, President of the Illinois Federation of Labor to point out that a resolution condemning one party in advance in a controversy which they intended to investigate, might tend to prejudice opinion as to the impartiality of the investigation. He moved that the resolution condemning the companies be rescinded. His motion was carried.