ARBITRATION
683
ARBITRATION
pation of trouble. Whatever the explanation,
whether the generosity of the employer or the con-
servatism of the union, the relations between them are
largely peaceful, a fact which is unfortunately often
overlooked by many who speak of the industrial
situation. 3. — In another increasing class the rela-
tions of employers and labour unions are cordial, or
at least peaceful, through formal, mutual understand-
ings, and oral or written contracts. In these ciises the
accredited representatives of employers and of labour
unions meet in a friendly way, discuss all questions
bearing on the contract of labour, reach conclusions,
and embody them in some form of definite under-
standing to cover a given [xriod. In such cases
provision is usually made for the peaceful settle-
ment of unforeseen minor disputes. The classes
referred to show that industrial jxjace does actually
exist to a considerable extent already. IIowe\er,
it still remains possible that disagreement, estrange-
ment, war, appear in any of the classes referred to.
Hence no statistical enumeration of the numljers of
employers and labourers who live and labour peace-
fully covers the whole situation. We lack still a
final authoritative institution which will bo prepared
to settle in a peaceful manner the conflicts that may
arise. The possibility of strike or lockout in the
classes enumerated being recognized, we may pro-
ceed to consider employers and imions actually at
war. Assuming that the employer takes action
adverse to the union's will, or vice versa, threats may
be made, compromise may be refused, war may be
declared, causing a strike, or lockout, with its train
of varied evils. The contest is then thrown to the
level of brute force, each party depending on his own
economic power to resist, and on the expectation of
the harm that may come to his opponent. In ad-
vance of the actual suspension of work and declara-
tion of strike, or at any time during a strike, the
Carties may endeavour either to prevent an out-
reak, or to terminate it, by efforts at compromise
among themselves. If they fail to do so, representa-
tives of the public, of civil, of religious, of political
organizatioas, may intervene to induce them to come
to an agreement among themselves for the sake of the
public. If all such efforts fail of result, one peaceful
recourse is left, namely, to ask the parties, who of
themselves will not agree, to place the issue in the
hands of a disinterested tribunal and abide by the
decision. When this is done, the process is called
Arbitration. When employers ana labour unions
arrange the terms of the labour contract formally
and for a definite period, the process is called Trade
.\greement, or collective bargaining, defined by the
Industrial Commission as "the process by which the
general terms of the labour contract itself, whether
the contract be written or oral, are determined by
negotiation directly between employers or em-
ployers' associations and organized workmen."
When differences of any kind arise, whether of great or of minor importance, if the parties them- selves arrange an amicable settlement, the process is called Conciliation, defined by the Industrial Com- mission as "the settlement by the parties directly, of minor disputes, as to the interpretation of the terms of the labour contract, whether that contract be an express one or only a general undcnitanding", while it IS further stated that in EnjjlaiKl quite com- monly the term conciliation is applied to "the dis- cussion and settlement of questions lx?tween the parties themselves, or Iwtwccn their representatives who are themselves actually interested ". Trade agreements, iis a nile, provide for the reference of unforeseen minor disputes to a board of conciliation composed of representatives of both sides. The intervention of outside partie.f who seek to induce the opponents to arrive at a peaceful settlement of their differences, is called Mediation, defined by the In-
dustrial Commission as "the intervention, usually
uninvited, of some outside person or body, with a
view to bringing the parties to the dispute together
in conciliatory conferences". When there is no
prospect of [wace through the action of the parties
to the dispute, and they agree to refer it to a third
party or body for judgment, the process is called
Arbitration, defined by the Industrial Commission
as "the authoritative decision of the issue as to
which the parties have failed to agree, by some per-
son or persons other than the parties". Arbitration
involves, therefore, reference of issues to a third
Carty, investigation, decision, action on the decision y the antagonists. It is greatly to be regretted that usage has not succeeded in establishing clear definitions. One may, liowever, avoid confusion if one will distinguish the following situations: (1) In- formal peaceful relations between unions and em- ployers; (2) Formal peaceful relations provided for m trade agreements in advance of any estrangement or difference; (.3) After ditTerences have arisen, all efforts made by the parties themselves to establish ix;ace, whether before or after a strike has been declared; (4) Reference to outside parties of the issues and authoritative decision by them; (5) In- tervention of disinterested outsiders, who aim to induce the contestants to arrange for peace, either among themselves or tlirough reference to outside parties. To these situations respectively, excluding the first, the terms trade agreements, conciliation, arbitration, mediation, may be applied.
Limits of Aubitkation. — It would be a mistake to assume that arbitration is a panacea. It is not necessarily effective beyond the term for which a decision is made. While the elements of conflict remain in society the possibility of dispute remains also. Hence, at best, arbitration is a makeshift, one of the highest importance no doubt, but it docs not eradicate the evils to which it is applied. There are certain issues between employers and labourers which will not be submitted to arbitration; funda- mental rights claimed by each party and held to be beyond the realm of dispute. Thus, for instance, the labour union will not submit to arbitration the question of the right of the labourer to join a union or the right of the union to represent its members. On the other hand, the employer would not submit to arbitration his right to manage his own business. The Industrial Conunission remarks: "Whether it is as wise ordinarily to submit general questions to arbitration as questions of interpretation is perhaps doubtful. It is certainly the case that minor ques- tions are more often arbitrated than those of grejit importance involving general conditions of future labour."
KiN'Ds OF Arbithation.— Arbitration is voluntary when it is freely invited, or accepted by the parties to the controversy, without reference to law, when only good faith is involved in the acceptance of the decision. It is compulsory when the civil law com- pels the parties to the industrial conflict to submit to the decision of aboard of arbitration. The law may require a legal boartl of arbitration to investigate a controversy, render a decision, and make public a report. The decision in this case has no binding power and no sanction other than that of public opinion. The law may provide a board which the ijarties may invoke if they wish, whose decision is binding when both parties join in request for action. Arbitration is governmental when civil authority provides encouragement, opportunity, boards, of which employers and lalxwrers may avail themselves in case of dispute. In all such cases the law may or may not confer ii|X)n a l)oard power to administer oaths, to subpoena witnesses and compel the pro- duction of pa[)eni and books. In nearly all forms of arbitration the rule is to represent the conflicting
