The party of the third part : the story of the Kansas Industrial Relations Court

Front matter

THE E^MIr OF THE THIRD PART

HENEY J. ALLEN

HI)

Contents

CHAP. PACE

Acknowledgment v

Introductory xi

II

A MAN with a peg leg, dressed in faded and greasy blue overalls, stood before the Kansas Industrial Court one day in the summer of 1920. He was a plaintiff in the case of the Stationary Firemen and Oilers, and his duties were that of tender at a turntable.

He had a wife and six children, he said, and had been getting $gj a month — equivalent to about ^45 a month before the war. It seems that the railroad brotherhoods had not included him or his union in their efforts to secure higher wages and better working conditions.

He testified that he worked seven days a week and when he came home at night he would help his wife do the washing which they solicited in order to keep starvation away. Upon close questioning he told some other startling facts. It was not unusual, he said, for him to take home a large part of his noonday lunch that his wife had put up for him, and to put it back surreptitiously with the other food at night so that the children might have enough.

And then he would start in at nightfall and help get out a washing.

The presiding judge of the Industrial Court told these things, among other incidents of the kind, to a friend one day, and he got up from his chair and paced back and forth. Once his voice stopped and he went over to the window and stood for a long time, saying nothing. He is rather phlegmatic — some call him cold and some say he is partial to corporations. Suddenly he turned and almost shouted, as men do sometimes when they want to conceal their emotions: "This is more than a law! It's more like gospel. If the people would only understand it ! Oh, if we were only thinking of the safety of the public we wouldn't be nearly so concerned! Why, this thing is more than that! It means justice to a man who has never had a chance to get it in such matters before."

The laborer was given an increase of more than 30 per cent. He belonged to a large and important class of railway labor for which the four brotherhoods have done nothing. In all the discussions of the Kansas law the importance of protecting the public has been stressed, and rightly so. Before entering upon a detailed description of the events leading up to its creation and enlarging upon the necessity for protecting the public, it may be of interest to give a number of outstanding facts in relation to the operation of the court in the first nine months of its existence and a number of instances showing what the court has done for labor. The record shows that the court is a very human one, responding to human needs.

That the court attracted the instant approval and interest of conservative elements of organized labor is proven by the fact that during the first few months of its operation about fifteen petitions were filed with the court by members of union labor in the various crafts representing railways, mining, packing, milling, and power industries. Of these petitions practically three fourths were disposed of before the ist of August, 1920. In at least twelve of the wage cases decisions have been rendered increasing wages, and every award but one has been accepted with sympathetic co-operation both by the laborers who filed the petition and by the employers.

The one exception is that of the Stationary Firemen and Oilers, just mentioned. Under the law either side may ^peal from the award directly to the supreme court. The case was brought into court by H. W. Wendele, one of the vice presidents of the International Brotherhood of Firemen and Oilers. He is also vice president for Kansas of the American Federation of Labor. The award of the court in this case increased the minimum wage of this craft from 35 cents 1045 cents per hour, and the maximum from 42 cents to 55 cents per hour. It also allowed the men time and a half for Sunday work.

The railways appealed from this decision on the ground that since the Federal government has established the Federal Wage Board for railway crafts, the Kansas court had no jurisdiction in this case. The appeal is now pending. A few weeks ago the Federal Wage Board rendered its decision touching the wages of this brotherhood. It is interesting to compare the award of the Federal board with that previously made by the Kansas Industrial Court. The Federal board's award is about 3 per cent under that of the Kansas court, except that the Federal board gives no recognition of the justice of a larger pay for Sunday employment.

Mr. Wendele has made a public statement to the effect that the award by the Kansas Industrial Court is regarded as a much more just and substantial recognition of the rights of this craft than is contained in the decision of the Federal Wage Board.

W. E, Freeman, president of the Kansas Federation of Labor, brought the case for the members of the Amalgamated Association of Street and Electric Railway Employees of America, against the JopHn & Pittsburg Railway Company. The court allowed a scale increasing the maximum pay of motormen and conductors from 42 to 55 cents per hour, blacksmiths from 49>^ to 55 cents per hour, machinists from 51^2 to 55 cents, armature winders from 5i>^ to 60 cents; headlight, taillight, and telephone men from $126 to ^135 per month. Helpers and other minor employees were given corresponding increases.

The order of the court making these increases was obeyed by the railway company, and the increases were satisfactory both to the employees and to the operators. This case attracted considerable attention through the fact that there had been, during the last three years, two destructive strikes upon this railway. One of them lasted ninety days and cost the employees, the company, and the community which the railway served many thousands of dollars, while the community which the railway served was badly crippled through the loss of this important adjunct to its commercial and social life. In deciding this case the Kansas Industrial Court exhibited the real spirit of the institution. The presiding judge discussed in his decision the suggestion of a living wage, saying:

A living wage may be defined as a wage which enables the worker to supply himself, and those absolutely dependent upon him, with suflScient food to maintain life and health, with a shelter from the inclemencies of the weather, with sufficient clothing to preserve the body from cold, and to enable persons to mingle among their fellows in such ways as may be necessary in the preservation of life. But it is not a living wage only which this court is commanded by the people of this state to assure workers engaged in these essential industries.

After enumerating the classes of employment concerned in the order and pointing out the various degrees of value which their services offered, the presiding judge says:

Such persons, in all fairness, are entitled to a wage which will enable them to procure for themselves and their families all the necessaries and a reasonable share of the comforts of life. They are entitled to a wage which will enable them, by industry and economy, not only to supply themselves with opportunities for intellectual advancement and reasonable recreation, but also to enable the parents, working together, to furnish to the children ample opportunities for intellectual and moral advancement, for education, and for an equal opportunity in the race of life. A fair wage will also allow the frugal man to provide reasonably for sickness and old age.

The Topeka local union of the Amalgamated Association of Electric and Street Railway Employees brought an action through local officers, assisted by one of the International vice presidents. The court granted an increase in wages ranging from 10 to 15 cents per hour. This increase was accepted by both operators and employers, and the peaceful conclusion offers a very sharp contrast to the experience of Denver, where the weapon of the strike was employed and which, before it was adjudicated, brought the loss of several lives and the loss of milHons to the public, the employees, and the traffic lines.

One of the provisions of the law is that laborers or employers in nonessential industries may, by common agreement, appeal to the court for the adjudication of controversies, and the decision, when rendered in a voluntary appeal, becomes binding as though it were rendered in an essential industry. This feature of the law has been used and promises to offer a valuable departure.

Another development of value is in the effect which the presence of the court has in lessening labor controversies . This is mentioned in another ch apter.

There has been a constant increase since the estabHshment of the court in the number of laboring men who approve it. With practically all the union-labor leaders fighting the idea, it was unavoidable that union labor should gain a misconception of the purposes of the court, but with their better understanding of it the conservative element in labor is coming to believe in its remedies. This is particularly noted in the coal-mining district, where Alexander Howat's loss of leadership is directly traceable to his virulent and unreasoning fight upon the court.

After the law was passed and some of Howat's miners had appealed to the court for the adjudication of grievances he called a meeting of the United Miners of his district and secured the adoption of amendments to the constitution of the organization, which provided that thereafter any miner who should take his grievance to the Court of Industrial Relations should be fined $50 for appealing to the Kansas court. Any miners' official or miners' local union which should use the court should be fined $500. The action with which the court met this effort of Howat to annul the Kansas law was to instruct the operators not to pay, under the check-off system, any fines assessed under these provisions of the United Mine Workers' constitution.

When, subsequently, the Industrial Court sought testimony in a case brought by some of the miners, setting forth grievances against operators, Howat refused to testify, stating that his refusal was based upon the fact that he did not recognize the court. The district court of Crawford County ordered him to testify, and, upon his refusal, sent him to the county jail. He was released from the county jail under an appeal bond, taking his case to the supreme court of the state to test the constitutionality of the law. The supreme court held the law to be constitutional and Howat prepared an appeal to the Supreme Court of the United States.

An injunction was also granted, forbidding Howat to call a strike, as he had threatened to do, and a hearing was had for the purpose of enlarging the present order of the district court.

An instance of the unreasonable leadership exercised by radicals is shown in the case of a young American Irishman who was a witness before the Industrial Court in a hearing of a coal strike against the Central Coal and Coke Company. He testified that the men were called out on a strike in June or July, 1919, by Howat. The young man had a wife and children and wanted work to keep them suppHed with necessities. He went to Howat after a week or two and asked him what the prospects were to get back on the job.

"Well, I don't know," said Howat.

"What did you call the strike for?"

"Well, that's a long story," was Howat's paralyzing reply. "I can't tell you now; I will tell you sometime."

He happened to belong to a church and was anxious to stay in the district, otherwise he would have moved away. He stayed around, doing a few odd jobs, and soon began to feel a severe pinch of want. During the strike period his wife did not have any new clothing or shoes, and meat was a scarce article on the table. The strike was never called off until Judge Anderson at Indianapolis took a hand, and the young man does not know to this day what the strike was about.

Then there was the case of Alex McAlester.

McAlester is the oldest shot firer in the Kansas coal fields. His occupation is a rather dangerous one, and very important.

Under pre-war conditions a shot firer was paid a basic wage of ^2.80 a day for firing at forty places, and pro rata above that figure when more places were to be fired. When war conditions came the operators desired to save man power and required the shot firers to do more work, but without increasing their pay over a 65-place basis. For a long time McAlester, as head of his union, tried to get Howat to secure a raise, but the mine leader refused.

When the Industrial Court was established McAlester was one of the first to appear with a request for higher wages, disregarding the threat of a fine.

One of the members of the court asked him if he knew of the penalty he had incurred at the handc of the union leader.

"I'm not afraid," he said. "I've got a right to bring this case. I'm an American citizen."

The court investigated the case and set a date for the hearing. At the date set for this hearing McAlester appeared with a check in his hand.

He then informed the court that the check covered every raise asked for by his union, and the raise dated back to the filing of the complaint. As soon as the miners' president learned they had taken the case into the Industrial Court he took the matter up with the operators. McAlester thanked the court and said that until its establishment he and his union had had no place to go with their troubles, for no one would pay any attention to their claims.

A paradoxical instance came up in the form of an application for relief by Fred Kervis, in behalf of the street-railway employees of Hutchinson. Kervis was a candidate for the legislature from that district and made his campaign upon the issue of opposition to the Industrial Court. He is a Democrat with pronounced radical leanings, and has been active in radical labor activities. His application was for higher wages for the street-railway employees. The case was heard and an agreement was reached in open court between the employees and employers. In the official record of the court proceedings is found the statement by Kervis that the court had been very considerate and that the adjustment was very satisfactory. This case was disposed of before election, but Kervis continued in his opposition and was defeated.

A switchman named W. F. Long, from Parsons, has written a complaint to the court which is probably one of the most remarkable documents of its kind in labor history.

He was one of the so-called "outlaw" switchmen who went out on a strike in Kansas City. After remaining idle for some time he went to Parsons and secured a job on the M., K. & T. Railway. After working two days, according to his statement, he was notified by the company that he was discharged, the reason being that the Railway Brotherhood had demanded his discharge from his employment because he had gone out on an unauthorized strike.

If the court handles cases of this kind it will be confronted with a variety of problems, but the salient feature is that the Brotherhood apparently has denied the "divine right" of Long to quit work, and the principal argument used by Brotherhood leaders — erroneously, of course — is that the Industrial Court abrogates the "divine right" to quit work. If the case goes to trial and if the Brotherhood officials are brought into court there will be seen the spectacle of the union leaders denying this "divine right." As will be seen in subsequent chapters, the court does not contemplate prohibiting anyone from quitting work unless that quitting threatens serious derangement of some vital industry.

The Kansas miners sometimes have to have money between the semimonthly pay days. They "borrow" money from the companies, out of wages already due them. The average period for these loans is one week. For this service, which is quite generally utilized, the companies have charged 10 per cent, or at the rate of 520 per cent a year. The union officials had never tried to do away with this gouge. The Industrial Court wiped it out in eighteen minutes without a formal trial.

The unofficial record of the Kansas tribunal — one of the things that puts the heart into it — is by no means an insignificant part of the story. Like the proposed machinery of the President's Industrial Council, the court operates so as to let sunlight into dark places, to encourage voluntary conciliation between employers and employees, and to remedy unwholesome living and working conditions.

Its report of the survey of the Kansas mining region, being given out from time to time, is an interesting chronicle of life interest.

The evidence shows that there are from 10,000 to 12,000 miners engaged in the field [recites the report]. Fewer than 500 of them were born of English-speaking parents. Most of them were brought in large numbers by the owners of the mines, direct from Europe. They are Italians, Sicilians, Poles, Slavs, Austrians, a few Germans, and people of other racial types, principally from southern Europe. They were brought in as nonunion laborers, but are now 100 per cent unionized. They were housed in cheap wooden houses owned by the companies, unplastered, but ceiled, and located in what were called camps or little settlements surrounding the mines.

The evidence shows that there was little, if any, religious work done among them in the early days. There was a strong Socialist settlement. The Appeal to Reason, a Socialist paper suppressed for a time during the war, was published in the district. A large proportion of the miners became Socialists.

There was no evidence produced by the operators that shows any benevolent action toward these strangers from Europe who were brought in to work the mines. No welfare work was done. No money was spent except where absolutely necessary. The houses were mere shells. The rent charged was very high, considering investment. Several miners testified that there was a suspicion among the miners that some of the strikes were called through collusion between the union officials and operators, in order to create a scarcity, and therefore a brisk market. Some evidence was introduced that intimidation and duress were used by the miners' union officials in the government of the mines, so that men who wanted to obey their contracts and wanted to work were not permitted to do so through fear of physical violence.

A man must pay fifty dollars in order to join the union, and thus be permitted to work. Large sums of money are raised, not only by regular dues, but by special assessments and fines imposed upon miners by the union officials. The evidence shows that union officials have misappropriated considerable sums of money out of funds collected by fines and assessments. Ten thousand dollars was sent to a Socialist newspaper in Oklahoma. Large sums were paid to attorneys who, the miners testified, rendered no service to the organization. Money was used to assist in the defense of the L W. W. A cash bond was put up in one instance for a man under indictment for conspiracy to overthrow the United States government.

One bright spot in the investigation, according to the report, was the fact that Americanism flourished in the schools in spite of unfavorable surroundings. Children of immigrant miners were asked how many ItaHans, how many Austrians, how many Russians there were among them, and not a sign was made.

When the count for Americans was suggested every hand was raised.

Here in the Pittsburg, Kansas, mining districts is a typical cross section of the restive, badly led foreign element, being painfully and gradually assimilated into American life under unfavorable industrial conditions. Who, heretofore, has taken the trouble to apply the healing hand ? The unions ? The mine owners ? The national government? Who has shielded the bedeviled workers from greedy employers on one hand and selfish demagogic agitators on the other hand.'' Who has placed a friendly arm on Alex McAlester's shoulder and said, "We represent the public and wish you well".?

The strange arm is the new court with the friendly touch — the court backed by the just but kindly sentiment of the majority — the court that looks out beyond the pale of special selfish interest and declares in behalf of the public that the laborer is worthy of his hire and that the right to live is greater than the right to strike.

The first case formally adjudicated by this tribunal was that of the state of Kansas against the Topeka Edison Company. The Edison Company is impressed with a public interest such as to bring it within the purview of the new law, being engaged in the business of transportation and furnishing necessary electric current. The case was brought in behalf of local union No. 841 of the International Brotherhood of Electrical Workers. They were granted an increase of wages in accordance with the scale in cities similarly situated. The court took into consideration the cost of living as well as a comparison with wage scales elsewhere, the hazard of the tasks involved, and the degree of skill required.

The second case was that of a union of street and electric railway employees against the Joplin & Pittsburg Railway Company. Here again an increase in wages was awarded on the basis of painstaking investigation and comparison.

Other cases disposed of in order were as follows :

Linemen of the Pittsburg & Joplin Railway Company, increase granted.

Train dispatchers, no increase allowed.

Foremen of trackmen, increase allowed.

Substation operators, no increase allowed.

Trackmen, increase granted.

Vandenburg et al. versus Wichita Railway and Light Co., increased wages allowed. This case affected a large number of street railway employees.

A. G. Weide et al. versus Kansas Flour Mills Company, Great Bend, findings issued on working conditions.

Topeka Railway Company, wage increase allowed employees.

E. H. Sowers versus Atchison Railway, Light and Power Co., increase in wages granted.

A. H. Martin et al. versus Santa Fe and Union Pacific Railway companies, dismissed on account of Federal Labor Board award.

J. W. Arendt et al., Goodland, versus Rock Island Railway, working conditions improved by agreement of parties.

The last-named case is of especial interest inasmuch as the settlement remedied a condition of thirteen years' standing. At Goodland, the home of some of the Rock Island shops, there are car sheds that have stood thirteen years without being inclosed. A defect in the old law made it impossible to compel the railroad to remedy the situation. The attention of the United States Railroad Administration was called to it without result. In the summer of 1920 the Kansas Industrial Court issued an order that the sheds should be inclosed in order to shelter the workmen in cold and inclement weather, and they are now inclosed.

In the case of the Stationary Firemen and Oilers, to which frequent reference has been made, the opinion, filed June 15, 1920, contains some interesting points.

It finds that some of the workers were not getting a wage large enough to support their families. In discussing a possible conflict with the Federal Transportation Act of 1920 the point is made that the order made by the Kansas Industrial Court is temporary in its nature and meant to be enforceable until the parties may agree, and is provided for the protection of the general public against the inconvenience, hardship, and suffering following in the wake of industrial warfare. A part of the decision follows:

32 THE PARTY£OFa£THE THIRD PART

From the evidence in this case it seems to the court plain that there is a material controversy, and that there is danger that such controversy may terminate in a cessation of work on the part of a large number of complaints which might result very seriously to the public. It is argued that the men will not strike because the Kansas law makes the strike unlawful. Nevertheless, the Kansas law distinctly recognizes the right of these men to quit their employment any time, and the mere fact that in large numbers they should become disgusted with the wage and with the conditions under which they work, would entitle them to quit at any time. These men are required to work seven days in the week in order to earn sufficient wage to support their families even scantily. The evidence shows a state of facts which would unquestionably warrant this court in taking jurisdiction in order to preserve the public peace, protect the public health, and promote the general welfare.

The tribunal is conducting a survey of the principal industrial centers of the state for the purpose of remedying housing conditions and of taking other constructive measures for the welfare of the workers. It has undertaken a big job, but it is backed by the law and public opinion and its members are going at the job with initiative and enthusiasm. It partakes more of legislative than of judicial sanction, but its final effects are of judicial nature, since the opinions of the court may be given the effect of decisions upon appeal to any court of competent jurisdiction.

The members of the court at present are: W. L. Huggins, lawyer, presiding judge; George H. Wark, lawyer; and Clyde M. Reed, newspaper man.

One of the chief arguments of organized labor against the court heard thus far is that the judges should be chosen directly by the people rather than through executive appointment. The objection to this process of selection is rather obvious. It would lead at once to an effort on the part of labor and of employing capital to choose the judges of the Industrial Court and the positions would become political footballs in every election because these ofi&ces are of especial interest to both capital and labor. To prevent this unfortunate interference with the impartial purposes of the court the judges were made appointive, with overlapping terms so that the court is safeguarded against the possibility that any one Governor would have the appointment of the entire personnel.

The objection that the court is thus removed from the direct action of the voters is met by the fact that the Governor of the state is always responsible to the voters for the appointment of any judge upon this court, and the supreme court judges of the state, to whom final appeal may be taken, are also elected by the direct vote of the people and responsible for their decisions. This, it has seemed to us, has properly safeguarded the interests of all classes and has reduced the danger of the nullification of the purposes of the law by the factional elections of the Industrial Court judges.

During the recent campaign the wisdom of making the judges appointive became evident in localities where recent increases in public utility rates had created tender spots. The name of the judge who happened to write the decision was known and thus 3 the judge was personally attacked by newspaper organs unfriendly to the administration. If he had been up for election he would have borne the brunt of the attack and a temporary gust of passion or prejudice might cause judges to become affected by the pressure of public feeling or by fear of political defeat. It will be shown in subsequent chapters why an industrial court should be an integral body and not a collection of individuals with separate influences bearing upon each one. Making the judges elective might at once cause them to seek office independently and by appeal to certain class interests.

The sentiment of organized labor toward the court seems to be growing more friendly. Perhaps the most concise statement of the attitude of conservative organized labor toward the new law is made by Charles W. Fear, editor of the Missouri Trades Unionist, who says:

We know that workingmen with whom we have discussed the question declare the law is a move in the right direction for peace in the labor world. Why not give the law a trial and have it amended where it is needed ?

This year in the Kansas coal-mining field will show a total production of seven million tons, according to late figures. This is an unprecedented figure, the average previously being about five and a half million tons. A more contented atmosphere prevails in the fields and the work of the court is bearing fruit.

A case which has attracted unusual attention is that of several flour mills of Topeka, from the fact that it had to do with an unusual feature of the law.

The price of wheat went down to a figure below $1.50 in Kansas at points of origin late in the autumn of 1920. This was below the cost of production, the farmers claimed, and they began to hold back shipments to the mills. The National Wheat Growers' Association, composed of a large number of farmers in Kansas and other states, announced that an eff"ort would be made to hold the wheat for a price of $3 a bushel.

The propaganda was at least partially successful. At any rate, a shortage began to be noticed.

A number of mills in Topeka closed down and let out some of their employees. It seems they had neglected a careful reading of the Industrial Court law, which provides that any establishment engaged in the manufacture or preparation of food products must not close down or curtail production without a hearing before the Industrial Court and the receipt of permission for such curtailment.