By an act of October 1, 1888, later repealed and replaced by that of June 1, 1898, Congress has made provision for the arbitration of disputes between interstate carriers and their employees. The three arbitrators are selected, one by the company, one by the labor union to which the employees directly interested belong, and the third by these two, and are given power to take testimony, summon witnesses, administer oaths, compel the production of papers, etc. Section 3 provides that the testimony and the award of the arbitrators, when filed in the circuit court for the district in which the controversy arises, shall be final and conclusive on both parties unless set aside for error of law apparent on the record, but that no employee shall be compelled to render personal services without his consent.

Section 10 declares, inter alia, that it shall be a misdemeanor for employer or agent to require of an employee, as a condition of employment, that he will not become or remain a member of a trade union, or threaten him with loss of employment if he becomes or remains a member.18

18 Section 10: "That any employer subject to the provisions of this act, and any officer, agent, or receiver of such employer, who shall require any employee, or any person seeking employment, as a condition of such employment, to enter into an agreement, either written or verbal, not to become or remain a member of any labor corporation, association, or organization; or shall threaten any employee with loss of employment, or shall unjustly discriminate against any employee because of his membership in such a labor corporation, association, or organization; or who shall require any employee or any person seeking employment, as a condition of such employment, to enter into a contract whereby such applicant for employment shall agree to contribute to any fund for charitable, social, or beneficial purposes; to release such employer from legal liability for any personal injury by reason of any benefit received from such fund beyond the proportion of the benefit arising from the employer's contribution to such fund; or who shall, after having discharged an employee attempt or conspire to prevent such employee from obtaining employment, or who shall, after the quitting of an employee, attempt or conspire to prevent such employee from obtaining employment, is hereby declared to be guilty of a misdemeanor, and, upon conviction thereof in any court of the United States of competent jurisdiction in the district in which such offense was committed, shall be punished for each offense by a fine of not less than one hundred dollars and not more than one thousand dollars."

The resort to this arbitral board may be had only with the consent of both employer and employees.

Though still upon the statute book no use of its arbitral provisions has yet been made. Inasmuch as personal service may not be enforced the provision that employees may not, during a period of three months after arbitration, quit their employment without giving thirty days' notice, is, of course, without value. It is possible also that the courts will find a constitutional objection to extending their aid to the arbitrators for the compelling of testimony or the production of papers.19

The aim of Section 10 is to prevent the blacklisting of employees, to make unlawful the requirement by the employer of an agreement on the part of his employees to release him from liability for injuries, and in general to protect the labor organizations. The constitutionality of this section was denied in several cases in the lower federal courts,20 and, finally, the same position was assumed by the Supreme Court in Adair v. United States,21 decided in 1908.

In this case Adair, an agent of a railway company engaged in interstate commerce, was charged with having, in violation of the tenth section of the Act of 1898, dismissed from the service of the company an employee because of his membership in a labor organization. Adair set up the unconstitutionality of this section on the double ground that it was a violation of the Fifth Amendment, being a. deprivation of liberty without due process of law; and that is was not justified by the Commerce Clause, and, therefore, void as relating to matters, the regulation of which is reserved exclusively to the States. Both of these contentions were held sound by the Supreme Court. As to the latter of these points, the opinion denies that there is any "possible legal or logical connection" between an employee's membership in a labor organization and the carrying on of interstate commerce. It cannot be assumed, the court assert, that the fitness or diligence of the employee is in any wise determined by such membership. As to the constitutionality of the provisions of the act with, reference to arbitration no opinion is expressed.22

19 See opinion of Justice Field in Pacific Railway Commission Case, 32 Fed. Rep. 241. But see also Interstate Commerce Com. v. Brimson, 154 U. S. 447; 14 Sup. Ct. Rep. 1125; 38 L. ed. 1047.

20 United States v. Scott, 148 Fed. Rep. 431; R. R. Telegraphers v. Louisville & N. Ry. Co., 148 Fed. Rep. 437, the court in the first case declaring that "Section 10 of the act of June 1, 1898, is not, in a constitutional sense, a regulation of commerce, or of commercial intercourse among the States, and cannot justly or fairly be so construed or treated, inasmuch as its essential object manifestly is only to regulate certain phases of the right of an employer to choose his own servants, whether the duties of those servants when employed relate to interstate commerce or not."

21208 U. S. 161; 28 Sup. ct. Rep. 277;; 52 L. ed. 436.