DECISIONS OF COURTS AFFECTING LABOR.

[Except in cases of special interest, the decisions here presented are restricted to those rendered by the Federal courts and the higher courts of the States and Territories. Only material portions of such decisions are reproduced, introductory and explanatory matter being given in the words of the editor. Decisions under statute law are indexed under the proper headings in the cumulative index, page 283 et seq.]

SCOPE

DECISIONS UNDER STATUTE LAW.

JUDGMENT-CONSTRUCTION

ARBITRATION OF LABOR DISPUTES-CONSTRUCTION OF AGREEMENTSOF STATUTE-In re Southern Pacific Company et al., United States Circuit Court, Northern District of California, 155 Federal Reporter, page 1001.-This case was before the court to review the findings of a board of arbitration appointed under the provisions of the act of June 1, 1898, 30 Stat. 424, commonly known as the "Erdman Act." The questions submitted to the board were four in number, and are as follows:

(a) Whether members of the Order of Railroad Telegraphers in the employ of the employer shall legislate for train dispatchers respecting rates of pay and hours of service, or otherwise. (b) The question of reduction of hours of service on Sundays for employees. (e) The question of percentage and general increase in salaries of employees. (d) The question of eliminating from the operation of the schedule certain important agencies where the duties of soliciting traffic are paramount.

.. These questions were answered by the board after hearing the evidence, which was very voluminous, covering 1,500 pages of typewriting, besides a volume of exhibits, and in due course the following answers were rendered:

(a) That the members of the Order of Railroad Telegraphers in the employ of the employer shall not legislate for train dispatchers regarding rates of pay and hours of service or otherwise.

(b) That the regular hours of service on Sundays shall be onehalf the regular hours of labor on other days: Provided, That at any station, where it is impracticable or inconvenient for the employer to arrange the service so as to reduce Sunday labor to onehalf time, he may arrange to give the employees leave of absence and full pay for 26 days per annum, at such time or times as will cause the employer and the public the least inconvenience.

(c) That the percentage of general increase in salaries of employees shall be seven and one-half (7) per cent, and that the apportionment of this general increase among divisions and subdivisions of the employer's lines shall be such as may be mutually agreed upon by the employer and the Order of Railroad Telegraphers.

(d) That the appointment of station agents whose regular duties do not include telegraphic work, and whose annual earnings in the form of salaries and commissions equal or exceed $1,300, shall not be controlled by the schedule or agreement between the employer and the Order of Railroad Telegraphers.

The act under which the submission was made provides:

That the award and the papers and proceedings, including the testimony relating thereto, certified under the hands of the arbitrators, and which shall have the force and effect of a bill of exceptions, shall be filed in the clerk's office of the circuit court of the United States for the district wherein the controversy arises or the arbitration is entered into, and shall be final and conclusive upon both parties, unless set aside for error of law apparent on the record. Also that:

The award being filed in the clerk's office of a circuit court of the United States, as hereinbefore provided, shall go into practical operation and judgment shall be entered thereon accordingly at the expiration of ten days from such filing unless within such ten days either party shall file exceptions thereto for matter of law apparent upon the record, in which case said award shall go into practical operation and judgment be entered accordingly when such exceptions shall have been finally disposed of, either by said court or on appeal therefrom.

In accordance with these provisions the telegraphers (designated as employees in the opinion) filed exceptions to the awards designated as (a) and (d), claiming that each was contrary to the law and not supported by the evidence, that the board erred in admitting certain evidence, and that finding (d) was not responsive to the question submitted under the agreement. They also asked for the enforcement of awards (b) and (c) by entry of judgment in due legal form. Judge Van Vleet, before whom the matter came for hearing, disallowed the exception as to (a), sustained the exceptions to (d), and ruled that under the terms of the law he was unable to enter judgment on a part of the findings while others were in abeyance. The case is of interest as being the first in which the law in question has been in court on the points involved. The facts involved and the principles on which the various conclusions were reached are set forth in the following portions of Judge Van Vleet's opinion:

1. The record discloses that the controversy involved in the arbitration grew out of antecedent negotiations had between the parties, the employees represented by their "General Committee" and the employer by certain of its officers, in an effort to bring about certain modifications in the schedule or agreement designated "Rules and Regulations of Pay of Telegraphers," then in force between the parties, commonly referred to as the "Schedule of 1902," the date of its adoption. These negotiations, which had been in progress for several weeks without the ability to come to a complete adjustment of differences, finally culminated in the agreement of arbitration which forms the basis of the proceeding. On the hearing before the board

of arbitration, the employees took the initiative, and in submitting their case as to issue A, above stated, they introduced evidence showing that the train dispatchers in the service of the employer on the system involved, a majority of whom were members of the employees' order, had, by a vote of about two-thirds, authorized the general committee of the employees to represent and "legislate" for them in negotiations in securing a new contract with the Southern Pacific Company." These authorizations were in writing in the form of letters and telegrams, and, while varying slightly in phraseology, were all of the same general import. They also introduced evidence tending to show the nature of the duties of train dispatchers, their status as employees, and the general mode of performing their service; and also showed that, under the existing schedule, the employees had, for a period of some eight years, been representing and legislating for the dispatchers in all negotiations of the kind. The employer did not attempt to rebut the evidence as to the fact that the dispatchers had given the employees authority to act for them, but was permitted on its part, over the objection of employees, to introduce evidence, largely expert or opinion in character, tending to show that a train dispatcher is an entirely different functionary from a telegrapher or“ operator" so-called; that, while the dispatcher may be an operator, he is not necessarily such, his duties being very dissimilar in character, largely administrative, and of much greater importance, not only to his employer in carrying on the service, but to the safety and convenience of the public; that he stands in a different relation to his employer, as well in fact as in law, representing him in the discharge of his duties as an alter ego or vice-principal in his relations with other employees; and, finally, that the feature of the schedule in force permitting the employees' order to legislate for the dispatchers as to rules of employment and rates of wages had been found to work very unsatisfactorily and injuriously to the service, and was a rule which did not obtain on the lines of any other general system.

The objection urged by the employees to the action of the board under this issue, and the only point made under their exceptions thereto, is that all the evidence thus admitted in behalf of the employer, so far as it affected that particular issue, was wholly irrelevant and incompetent, and outside the issue; that the sole question involved in that issue, when properly construed, was whether the employees had been duly authorized by the train dispatchers to "legislate" for them respecting rates of pay, etc., and to represent them in the arbitration proceedings; that the moment such authorization was made to appear by the evidence the inquiry under this issue was closed, and the board was without authority to go further, but was bound to find the issue in the affirmative. But manifestly the language of that issue will not support this construction. It may be conceded that the contention is correct as to the merely incidental right of the employees to represent the dispatchers before the board of arbitration. That was purely a question of agency, and the dispatchers had a right perhaps to delegate it to any one they saw fit, regardless of the wishes of the employer. In fact, while some objection appears to have been made by the employer before the board of arbitration, it was overruled, and is not now being insisted upon. But the question whether the order "shall legislate for train dis

patchers respecting rates of pay, hours of service, or otherwise" involves more than a mere question of agency, where the will and desire of the party conferring the power is alone to be considered. The language of the question is in the future tense, and very clearly involves a question of principle or policy affecting the relations of the parties and the methods of conducting the dealings of the employer with its dispatchers; whether, in other words, it shall for the future be permitted to deal with them directly, or shall be subject to the control of a third party, in establishing the rules, regulations, and rates of pay that shall obtain in their service. This was a question in which both parties to the controversy were at least equally interested, and one upon which it was very evidently the purpose of the framers that both parties should be heard. Had it been the purpose to submit the simple inquiry whether the employees had been empowered by the dispatchers, the issue, if put at all, would doubtless have been framed very differently; but, moreover, it would be convicting both parties to the controversy of a piece of idle folly to hold that they intended to submit to arbitration a mere question of fact so easily ascertainable. It is not contended that the character of the evidence was improper, if it was admissible at all, nor that it was not sufficient to sustain the finding, if the board's interpretation of the issue was the proper one. I am satisfied that the construction adopted by the board as to the nature of the question was correct, and that the exception can not be allowed.

2. The only ground of exception to finding D which I deem it necessary to notice is whether the facts found thereby are within the issues submitted by the agreement. A difference arose between counsel of the respective parties in the hearing before the arbitrators, as to the meaning of question D as stated in the agreement, and as to the scope of the inquiry thereunder. The employees were confining their investigation purely to the literal terms of the question by inquiring as to the number and location of stations or agencies where the paramount duty of the agent was that of soliciting traffic. The employer objected that this was unduly restricting the inquiry under that issue; that its real meaning, and the question intended to be thereby submitted, was as to the elimination from the operation of the schedule and the rule of seniority therein provided of stations or agencies, termed "starred stations," where the business of the company was such that the other duties of the agent were more important than telegraphing, where it was necessary to employ as agents men apt in business methods, familiar with traffic conditions, able successfully to solicit and gain business, superintend the men under their charge, look after the operation of freight and warehouses, handle and sell tickets of all kinds, and transact other commercial business-stations, in other words, where such qualities in the agent were of more essential consideration than his ability as an operator. And it was urged that, if the issue had been misunderstood, it should be amended or cleared up; and the board was requested to make a ruling for the guidance. of the parties as to its interpretation of the question. The employees took the ground that there could be no misapprehension of the meaning of the question, that it was to be interpreted by its terms and the inquiry restricted, as therein specified, to agencies where the chief or paramount duty of the agent was soliciting traffic; and they

objected to any amendment or any such construction thereof, as suggested by the employer, as being equally without the power of the board. After some considerable argument the board requested the parties each to file in writing his interpretation of the question for their information, and that it would then determine its meaning. This request was complied with by the employer, but the employees declined, upon the ground that they regarded the language of the issue as free from ambiguity, and preferred to stand upon its terms. Thereupon the arbitrators, by a majority vote, ruled, in effect, that, while they could not amend the language of the question, it should be construed substantially as covering the ground contended for by the employer; and they permitted the evidence to take that scope. At the outset it may be remarked, in response to certain suggestions made at the argument, that the proceeding has its inception in and rests solely upon the agreement of arbitration entered into between the parties; that it is by the terms of that instrument, when properly construed, that not only the rights of the parties thereto, but the extent of the powers of the arbitrators thereunder, are to be limited and determined. The act puts the arbitration proceedings therein provided for in no different category in this respect than the ordinary common-law arbitration. Moreover, while the proceeding is judicial in character, the relation of the parties is purely a contractual one, and in no respect, other perhaps than in the application of the rules of evidence, does the proceeding partake of the nature of a civil action. Therefore the rules of construction and interpretation applicable to contracts rather than those applicable to pleadings obtain. Nor is there anything in the act indicating, as suggested by one of the parties, that its provisions, either as to the requirements of the agreement for arbitration or the proceedings thereunder, are to be tested by any different or more liberal rules of construction than those applicable to other contracts or proceedings of a similar nature. We are therefore to have resort, in determining the purpose of the parties under this agreement, to those usual and well-established canons of construction applicable to contracts generally; and, applying those principles, I am satisfied that, taking the language of the contract alone, the finding made in response to question D is not responsive to the issue thereby submitted. One of the cardinal rules for the interpretation of an instrument inter partes is that primarily it must be interpreted by its language, taken in its ordinary and accepted meaning, and, if that language is plain and unambiguous in itself, there is no room for construction, but it will be held to mean precisely what its terms imply. Very obviously this rule was violated in the construction placed by the arbitrators upon this feature of the agreement. The question related solely to agencies "where the duties of soliciting traffic are paramount." Nothing could well be plainer than this language. It is in no sense ambiguous, and there is nothing in itself nor elsewhere in the contract to indicate that it was employed in any technical sense, or otherwise than according to its ordinary import. It referred, neither directly nor by implication, to the character of agencies described in the finding, and the finding says nothing about the character of agencies referred to in the question. Counsel for the employer urge that the finding need not follow the precise terms as to descriptive words employed in the question, that it is sufficient if the finding involve in