Page images


plaint should issue. The application for complaint, like the preliminary inquiry, is handled by the Chief Examiner and is held confidential.

The Chief Examiner assigns each application for complaint to an attorney, whose duty it is to gather the facts. The first step in the investigation is to present to the party complained against a complete statement of matter, without identifying the applicant, and to request the party complained against to submit such statements, evidence, and documents in defense or explanation of his position as he may desire to be brought to the attention of the commission. The investigating attorney makes such investigation as the nature of the particular case may require to develop the facts, and thereafter summarizes his investigation in a final report which is submitted, with the record, to the Chief Examiner, with a recommendation either (1) that the application for complaint be dismissed or (2) that formal complaint issue.

The Chief Examiner passes upon the investigating attorney's reports and indorses thereon his approval or disapproval and in event complaint is recommended refers the entire file to the board of review. If the recommendation of the investigating attorney is for dismissal, the file goes direct to the commissioner in charge. If the Chief Examiner believes the case may be disposed of by stipulation under the rule of March 17, 1925 (see section 7, supra), he so recommends in transmitting the case direct to the commission via the Secretary. Upon authority from the commission the Chief Examiner negotiates a stipulation which is really an agreement with the proposed respondent that (1) he admits the practice charged; (2) has ceased, or will cease, the practice in question; (3) will not resume it; (4) if he does resume the practice the commission may use the stipulation of facts as evidence against him in any complaint that may issue. The stipulation is forwarded to the commission and the application for complaint is dismissed without publicity.

The board of review, a sitting board, composed of two lawyers and one economist, reviews the record and prepares a report, summarizing the evidence, reciting the law applicable thereto, and submitting a recommendation for commission action. If the board finds for a complaint, prior to recommending such complaint to the commission, it affords the proposed respondent a hearing and an opportunity to stipulate along the lines followed by the Chief Examiner. If the proposed respondent refuses to stipulate, the case proceeds in regular order.

The file is then assigned to a commissioner, who reviews the entire record and presents the case to the full commission with his recommendation either that a complaint issue or that the application for complaint be dismissed. A majority 'vote controls. 2


11. Same; Complaint

The complaint, the third stage in the development of an unfair competition or Clayton Act case, is the statutory means of bringing a party charged with violation of the law before the commission. It must have reason to believe that section 5 of the Federal Trade Commission Act or section 2, 3, 7, or 8 of the Clayton Act has been violated before complaint issues. With its issuance the formal

[ocr errors]

25 Annual Report, Federal Trade Commission, 1924, p. 20 et seq.

docket is made up, and the case is now, for the first time, open to public inspection. Only the commission may bring a complaint. Subsequent steps must be based thereon, and unless it sets forth facts to show a violation of law a valid order cannot be based upon it, regardless of the evidence.26

* The thing which may be prohibited' is the method of competition specified in the com

[ocr errors]



plaint.” 26

A complaint is issued in the name of the commission in the public interest. It names a respondent and charges a violation of law, with a statement of the charges. It contains notice of a hearing. Thirty days are allowed the respondent within which to make answer. The party first complaining to the commission is not a party to the complaint when issued by the commission. Nor does the complaint seek to adjust matters between parties. It is to prevent unfair methods of competition for the protection of the public.

Upon the issuance of a complaint, the case is referred to the chief counsel, who is charged with the trial and the submission of the matter to the commission thereafter.

12. Same; Answer, Examination, and Finding

After answer is filed and upon due notice to all parties respondent the case is set down for the taking of testimony before a trial examiner.27 After the taking of testimony and the submission of evidence on behalf of the commission in support of its complaint, and on behalf of the respondent, the trial examiner prepares a report of the facts for the information of the commission, counsel for the commission, and counsel for the respondent. Exceptions to the trial examiner's report may be made by either counsel for the commission or counsel for the respondent. The next step is the filing of briefs, and thereafter the case comes on for final argument before the full commission upon the complaint, the answer, the testimony and exhibits, the examiner's reports, exceptions thereto, and briefs by opposing counsel. The case is heard and taken under advisement, and thereafter the commission reaches a decision either sustaining the charges in the complaint or dismissing the complaint.25 The foregoing procedure is the one followed in contested cases. In other cases an admission of the matters alleged in the complaint may be made by respondent and a stipulation in lieu of testimony entered into between the commission and the respondent, upon which the commission makes its findings of facts, which are the basis of an order to cease and desist. The stipulation, of course, obviates the necessity for the taking of testimony and the briefing and argument of the case, unless the respondent desires to be heard upon the law alone.

25 Annual Report, Federal Trade Commission, 1924, p. 20 et seq. 26 Federal Trade Commission v. Gratz, 253 U. S. 421, 40 S. Ct. 572, 64 L. Ed. 993.

27 The answer is the only defensive pleading or motion permitted. See The Federal Trade Commission, G. C. Henderson, p. 57 et seq., citing Chamber of Commerce of Minneapolis v. Federal Trade Commission (C. C. A.) 280 F. 45.



13. Same; Injunction Against Commission

Where the respondent asked a District Court for an injunction to arrest proceeding under the complaint, and to prevent the commission from compelling the respondent to produce records and documents, the injunction was denied. 28 14. Same; Bill of Particulars

The Commission will not entertain a motion to make the complaint more specific or for a bill of particulars.29 15. Same; Orders

The final expression of the commission, if the complaint is sustained, is an order 22 upon the respondent to cease and desist a particular practice or practices charged in the complaint; or, if the complaint is not sustained, an order of dismissal is issued. The commission, during 1924, issued 92 separate orders to cease and desist. All of the 92 orders covered violations of section 5 of the Federal Trade Commission Act relating to unfair methods of competition. In two of these violations of section 2 of the Clayton Act-price discriminations—were enjoined, and in one order violation of section 3 of the Clayton Act—tying contracts—was enjoined. As in past years, the respondents upon whom the orders were issued have in a great majority of cases accepted the orders and filed reports with the commission signifying their compliance with the terms of the orders.

28 T. C. Hurst & Son v. Federal Trade Commission (D. C.) 268 F. 874. 29 Federal Trade Commission v. Joseph Simmonds, 2 F. T. C. D. 11.


[merged small][ocr errors][merged small]

1. Mission

The United States Railroad Labor Board, created in 1920,1 is an independent federal establishment, of a quasi judicial nature, with central offices at 608 South Dearborn street, Chicago, though it may meet at any other place. Its general mission is the amicable adjustment of disputes arising between carriers subject to the Interstate Commerce Act and their employees and subordinate officers in matters relating to wages, grievances, rules, or working conditions. 2. History

The amicable adjustment of labor disputes was first made a subject of a national law in 1888, though some of the states and European countries had experimented in such legislation. The panic of 1873 in the United States, the crop failure of 1881, and the maladjustment of 1882, resulting in increase of living costs and consequent discontent,* induced the Senate investigation, through its Committee on Education and Labor, in 1882–1883. The contentions of that period and results of the hearings were illuminating, though they produced no immediate solution. Strikes increased. The President sent a special message to Congress in 1886,8 and the first act above referred to was passed, the net result of which was compulsory attendance of witnesses, production of evidence, and publication of the Commissioner of Labor's decisions. Strikes were numerous and violent.10 The Erdman Act,11 like the act of 1888, provided for arbitration


1 Act Feb. 28, 1920 (41 Stat. 456, 469); section 304, P. L. No. 152, 66th Cong. (the Transportation Act).

2 Act Oct. 1, 1888 (25 Stat. 501).

3 77 Cong. Rec. p. 2968; Cummings, Industrial Arbitration in the United States, Quarterly Journal of Economics, IX, pp. 353, 354, 358, 392, 397, 410, 420, 447, 572, 580, 587; Hatch, Government Industrial Arbitration, Bureau of Labor Bulletin 60, pp. 392, 572; Hatch, Arbitration; Bliss, New Encyclopedia for Social Reform, p. 60; Statutes of Apprentices—1562, 5 Eliz. c. 4; 20 George II, c. 19; 39–40 George III, c. 90; 43 George III, c. 151; 44 George III, c. 137; 53 George III, c. 125; Weeks, Labor Differences and Their Settlement, Society for Political Education, Economic Tracts, XX, pp. 9, 50; Sumner, Industrial Courts in France, Germany, and Switzerland, Bureau of Labor Bulletin 98, pp. 273, 289, 290; Wright, Industrial Conciliation and Arbitration, p. 4; Cummings, Action under Labor Arbitration Acts. Quarterly Journal of Economics, I, p. 497.

4 Appleton's Annual Cyclopedia, 1882, p. 453. 5 57 Cong. Rec. p. 6996.

6 Report of the Committee of the Senate upon Relations between Labor and Capital, vol. I, pp. 377, 1173.

7 Commissioner of Labor, Annual Report, 1901, p. 16; Taussig, The Southwestern Strike of 1886, Quarterly Journal of Economics, I, p. 184.

8 78 Cong. Rec. p. 3728. 9 77 Cong. Rec. p. 2964. 10 Carroll D. Wright, Industrial Evolution of the United States. 11 Act June 1, 1898 (30 Stat. 424); Act July 15, 1913 (38 Stat. 108 [Comp. St. § 8676)). 12 Bureau of Labor, Bulletin No. 98, p. 26 et seq. See, also, Commissioner of Mediation and Conciliation, Report, 1913–1919, p. 7.

and mediation, but was appliable only to cases of employees engaged in railway train service. It was premature legislation, 12 but in the end was invoked successfully in more than sixty cases. 13

The Newlands Act 14 followed the lines of the Erdman Act. It established the office of Commissioner of Mediation and Conciliation and the United States Board of Mediation and Conciliation. The effect of legislation at this stage was temporization; settling isolated disputes disposed of no question of fundamental principle. The law was threatened with breakdown, with disastrous results in critical national periods, and necessitated the President's intervention. The Adamson Law 15 was passed.

The entrance of the United States into the World War and government control of the railroads created a decidedly new situation, from which the creation of the Railroad Wage Commission 16 and the Board of Railroad Wages and Working Conditions 17 resulted.

The Railroad Labor Board was created as a new agent to supplement previous provisions, and was organized April 16, 1920. Its powers in regard to wages and working conditions are similar to those of the Interstate Commerce Commission with respect to rates.

3. Quasi Judicial Activities

The Railroad Labor Board 18 is primarily a final court of appeals for labor disputes originating in connection with railroad carriers subject to the Interstate Commerce Act, including express companies and sleeping car companies, but not 'street, interurban, or suburban electric railways not operating as a part of a general steam railroad system of transportation.19

In the conduct of its judicial proceedings, members are authorized to require by subpæna the attendance of witnesses, to take depositions, to secure evidence by production of papers, books, and documents, and to administer oaths and examine witnesses, 20 and the aid of United States District Courts may be invoked to that end.21

Access to documents and records is authorized.22 The board may adopt its own procedure, 23 but must grant a hearing to any party to a dispute 24 Disputes as to grievances, rules, or working conditions may be decided upon certification

13 Report of Commissioner of Mediation and Conciliation, 1913–1919, pp. 77, 96. 14 Act July 15, 1913 (38 Stat. 103 (Comp. St. $$ 8666–8676)). 15 Act Sept. 3, 1916 (39 Stat. 721 [Comp. St. 88 8680a-8680d]). 16 Director General of Railroads, Gen. Order No. 5, Jan. 18, 1918. 17 Director General of Railroads, Gen. Order No. 27, art. VII, May 25, 1918. 18 Act Feb. 28, 1920 (41 Stat. 469). 19 41 Stat. 469, $ 300, par. (1) being Comp. St. Ann. Supp. 1923, & 1007144 ee. 20 41 Stat. 472, $ 310, par. (a) being Comp. St. Aun. Supp. 1923, § 1007114hhh. 21 41 Stat. 472, § 310, par. (b) being Comp. St. Ann. Supp. 1923, $ 1007174 hhh. 22 41 Stat. 472, § 311, par. (b) being Comp. St. Ann. Supp. 1923, & 1007144i. 23 41 Stat. 472, 8 308, par. (4) being Comp. St. Ann. Supp. 1923, $ 1007144h. 24 41 Stat. 472, $ 309 (Comp. St. Ann. Supp. 1923, $ 1007144hh).

« ՆախորդըՇարունակել »