Civil war in West Virginia

Front matter

i /_fttt£ oJ/Vi+Vlrop t>.

CIVIL U3A/^ '^

5EnnWB PRINTING

Table Of Contents

Introduction by John R. Commons, 7 Author's Preface, 11

CHAPTER

I. The Conflict, 15

Introduction

BY JOHN R. COMMONS

Mr. Lane's account of the mining situation in West Virginia makes plain the issue that faces the nation: Shall the Supreme Court of the United States deny to labor unions the right to persuade? It is no longer, Shall labor unions be prohibited from committing violence. It is, Shall they be prohibited from even persuading non-unionists to join?

In the final analysis this is not a judicial question at all. It is a legislative question. It is a question of public policy. The Supreme Court has decided the public policy of the nation. It has decided that labor shall not have the right to organize even by peaceful persuasion, and the federal and state courts in West Virginia are executing the decision by injunctions.

The injunction takes the form of prohibiting organizers and even former employees from persuading employees to break their contracts of employment. The employees enter into a contract with their employer not to join a labor union while employed; and not even, after quitting or being discharged, to persuade other employees to join the union.

The contract of employment states the grounds on which the contract is made. It is "in order to preserve to each man the right to do such work as he pleases and for whom he pleases and the right to payment in proportion to service rendered, to preserve the natural and constitutional right of individual contract, to preserve to each individual the fruits of his own labor, and to promote the interests of both parties hereto."

In order to enjoy these rights of individual contract the employee contracts that he will not thereafter, whether while employed or after being discharged or voluntarily quitting, attempt to exercise any right of collective contract respecting that employer.

And he makes this individual contract with the agent of the United States Steel Corporation, or with the agent of the Norfolk and Western Railway Company, controlled by the Pennsylvania Railroad Company — in short, he makes this contract with the associated financiers of the Nation.

Suppose a labor organization should become so powerful and foolish as to insist on individual contracts with financiers to the effect that the financier should agree that, in order to preserve his right to hire such workers as he individually pleased, and in order "to preserve his natural and constitutional rights of individual contract," he would not, at any time thereafter, enter into any contract with any association or corporation of financiers to deal collectively with the labor organization — it would at once be seen that what the labor organization is doing is what it is doing in Russia, acting collectively itself but compelling the capitalists to bargain individually.

This is, indeed, a great issue of public policy. Shall the financiers of the nation have the right to organize, and labor be denied the right to organize? The federal courts and the state courts of West Virginia have so decided. The decision is based on the "natural and constitutional right of individual contract."

Yet it is well known that the courts have held many contracts void as being contrary to morals, or contrary to public policy, or obtained under duress, and so on. The courts might, perhaps, have so decided respecting these anti-union contracts. Perhaps they did not realize that the contracts are made between the associated financiers of the nation on the one side and individual mine workers on the other side. It is a great convenience to treat a corporation as an individual, and to hold that a contract between a subsidiary of the Steel Corporation and an employee of that subsidiary is an individual contract, to be protected by "natural and constitutional right."

But in this case it is a convenience out-of-date. To get back to individual contracts we should go back to colonial times when the constitution was framed and when the employer was strictly a "natural" individual, like the worker. To-day the employer is an artificial individual, as huge even as the government of a nation, held together by the credit system, by community of interest, and by operation of law. The science of law has been stated by the court to be a progressive science. If so, the court should investigate the artificial being which it has created, and inquire whether another artificial being, the labor organization, is not just as natural and constitutional. It would seem that if financiers have obtained a natural right to join a powerful corporation and thus give up their right to make individual contracts in that respect, so workers might be protected in a similar natural right to join an organization powerful enough to deal with that corporation. The natural right to contract is not always a natural right to give up the right to contract.

It is also a proper legal question whether these anti-union contracts are really contracts at all. They assume the guise of contracts, but a labor contract is at most only a contract at will, or from day to day or from week to week. The employer can discharge without notice and the employee can quit without notice. As pointed out recently by the editor of the Yale Law Journal (April, 1921), neither of the parties to such a contract "is under a contractual duty as to succeeding days and consequently no third person can induce a breach thereof." In this case there is no contractual duty of employment on the part of the Mining Company. Yet, although there is no contractual duty to continue employment, the court treats the matter as though there were. This is doubtless due to the origin of this action in the ancient law of master and servant. Originally the master had a right of action against a third party for seducing his servant to leave and thus causing a loss of the services due to the master. "Even though this seduction theory is properly exploded," says the editor of the Yale Law Journal, "there seems to be a vestige of it still remaining in the minds of the courts." That vestige is visible in West Virginia. Persuasion to join a union is as unlawful as violence.

Author's Preface

The conflict over unionism in West Virginia is neither temporary nor sporadic. It is a deep-seated and continuous struggle. It is more fundamental than occasional strikes and more sensational, even, than the murder of mine guards and miners. Any competent narrative of it is an answer to the question: What happens when an aggressive labor union determines to organize a particular set of workers, and aggressive employers say that it shall not?

This question is important at all times. It is especially important just now when employers are everywhere fighting labor unions under the slogan of the "open shop," and the whole question of industrial relations is so much to the fore. In West Virginia the conflict is seen in all of its brutal nakedness, with both sides prepared for combat to the bitter end and relentless in pursuit of their goals.

The fight reaches back to the first attempts by the miners, thirty years ago, to organize. It is in direct line of succession to a long series of sharp conflicts — to strikes that have paralyzed industry, to bloody encounters between mine guards and miners, to muzzling injunctions, to the eviction of miners from their houses, to Congressional investigations, to the use of United States troops, to the payment of public officials with private funds, and to retaliatory violence committed by the men who work in the mines. Such scenes as Stanniford in 1902, when miners lost their lives in a battle with armed gunmen; as Cabin Creek and Paint Creek in 1912, when civil war raged for a time; as Matewan in 1920, when ten people were killed in a shooting affray with private detectives: these are the raw material out of which history has been made in the coal fields of West Virginia. To-day the conflict is as intense as ever. Whether another investigation by Congress is required the reader may judge for himself. A resolution calling for such an inquiry was introduced into the Senate last February and was referred to the Committee on Audit to determine its cost. The miners are making an attempt, as these pages go to press, to secure authorization for such an inquiry.

The following chapters first appeared as a series of news articles, running from February 7 to March 3, in the New York Evening Post. The author spent a number of weeks in West Virginia, not only gathering the story of the conflict but studying the civilization that lies back of it. He has tried to picture that civilization, with its semi-feudal and paternalistic features, in these chapters. For the most part newspapers to-day do not try to give thorough and illuminating accounts of intricate and vital matters. They wait until some sensational episode affords the "news" emergency deemed necessary for "playing up" what, without that emergency, is plentifully important; and then they tell only of the emergency, with perhaps sufficient detail concerning the situation as a whole to whet the discriminating reader's interest. They do not supply the perspective necessary for a real understanding of what is going on. Being interested only in what is happening to-day, they do not often enough try to make that intelligible in the only way that it can be made intelligible, namely, by telling what happened yesterday. Moreover, they do not search beneath the surface. They find space for a shooting affray without telling what caused the affray; they discuss the violence accompanying strikes without making known what led to the strikes. In all of the recent dispatches that have come out of West Virginia, none, so far as the writer is aware, have dealt with injunctions, with "yellow dog" contracts, with the fact that the one hundred thousand miners in the state live in no security of residence whatever, with the hiring of deputy sheriffs by the operators, 1 with the ownership of coal lands, with the paternalistic aspect of the miner's life and with other equally important matters. That newspapers can do this, and that it is one of their legitimate functions to do so, is strongly supported, it is hoped, by the present example of the New York Evening Post, however poor the execution of the task may have been.

Thanks are due for permission to reprint to Mr. Edwin F. Gay, president of the New York Evening Post, Inc. It will be found that additional material has been inserted in Chapter II dealing with the use of "scrip" and other methods of paying coal miners. Thanks are due also to Mr. Joseph G. Bradley, a non-union coal operator of West Virginia whose own mine is, in its physical aspects, one of the best in the state. Other persons who have assisted in the collecting of facts are named in the course of the chapters.

Winthrop D. Lane.

New York City, April 20, IQ2I.

x The essential facts in regard to this were published by Arthur Gleason in The Nation for May 29, 1920.

THE CONFLICT

West Virginia is today in a state of civil war. This civil war is of a peculiar kind. It is not being fought by armies in the field, led by military commanders and seeking military victory. It is more subtle and covert than that. It is being fought through many of the ordinary channels of civilization. It is being fought in the courts, through the power to withhold jobs, through the ownership of men's homes, through the control of local government. It is being fought by strikes, by appeals to class interest, and the occasional resort to violence. Its weapons are injunctions, special kinds of contracts of employment, impassioned oratory and the refusal to work.

The forces opposed to each other in this war are the owners and operators of coal mines, on the one hand, and the men who produce coal, the miners, on the other. The miners are assisted and encouraged by the United Mine Workers of America, a labor union affiliated with the American Federation of Labor. The issue between these two forces is: Shall the miners have the right to belong to the United Mine Workers of America and to bargain collectively with their employers?

Nobody denies the miner's naked right to join the union. The men who manage and operate the coal mines of West Virginia do not say: "You cannot become a member of the United Mine Workers of America. ,,

What they say is this: "You cannot become a member of the United Mine Workers of America and continue to work for us." Men who join are discharged.

The operators say, moreover, to the union: "Your organizers shall not come among our men. We will not let you make your appeal to them."

The operators believe that their position is justified. They believe that the union is selfish, domineering, unscrupulous. They believe that it will change their relations with their employees, and they see in its power rising costs of operating their mines. They are determined, therefore, to keep it out.

The miners, on the other hand, believe that they have a right to belong to the union. They believe that this is an important and fundamental right. Moreover, they believe that certain tangible advantages will come to them from joining the union. They can then secure wage agreements, specifying that certain rates of pay and conditions of employment shall be binding over a definite period of time. They believe that in this way they can earn more money and make better homes for their families.

The operators are in the position of power. Their power comes chiefly from their ownership of property. They own — or if they do not own, they lease, which is the same thing so far as power is concerned — practically all of the property that exists around a coal mine. The mining town is built on their property; they build it. They own the houses. They own the stores and the amusement places. They often build the churches and frequently the schoolhouses. They guarantee the church against loss and sometimes supplement the salary of the school teacher. They own the building in which the Y. M. C. A. is located and can put the secretary out if they want to. They own the meeting halls. Sometimes they own even the roads.

Thus the operators are not only the miner's employer; they are his landlord, his merchant, the provider of his amusements, the sanitary officer of his town, sometimes the source of his police protection and the patron of his physician, his minister, and his school teacher.

On the other hand, the power of the miner is his power to refuse to work. He can exercise this power to the great inconvenience of the operator. He can shut down plants. He can interfere with the production of coal. He can cause financial loss. He can also, through the union, make appeals to the class interest of his fellow workers; he can cause disaffection and stir up strife; he can make capital out of the hostility of the operator. His power is neither so many-sided nor so controllable as that of the operator, but it is effective.

These are the forces that are opposed to each other in this West Virginia warfare. The war is being fought through the control of public officials. In one strongly non-union county there are twenty-five deputy sheriffs stationed on the properties of various coal producing companies. These deputy sheriffs are public officials, nominated by the sheriff and appointed by the County Court. They give bond as required by law. Their salaries, however, are paid by the operators. The treasurer of the local operators' association gives $32,700 a year to the sheriff for this purpose. These deputies perform certain services for the operators. They guard the company payrolls from the office to the mine twice a month, for example. The operators defend this arrangement and say the county needs this extra police protection. But several hundred pages of testimony taken by a commission appointed by Gov. Cornwell showed that these same deputy sheriffs clubbed men who talked unionism and ran union organizers out of the county.

The war is being fought through the control of men's jobs. Men are being discharged for joining the union. That is not all. Throughout a large part of the non-union territory jobs are being given only to men who will sign contracts agreeing to leave the union, if they are already members, or not to join if they are not.

The war is being fought through the ownership of men's houses. Miners have been evicted for joining the union; their families and their furniture have been put out on the street. Forcible evictions, however, lead to trouble. So the operators have sought other means of putting men out of their houses. They have attempted to do so by law; and in so doing they have set up the contention that miners living in company-owned houses are not tenants but servants. This means that the miners are not entitled to notice that they must vacate by a certain date, but that they can be evicted the moment their employment ceases. The courts have, in effect, sustained this contention. Thus, one-fourth of the adult males in West Virginia, comprising the labor force of a basic industry, have no security of residence.

The war is being fought through injunctions. State courts have enjoined union representatives from trying to persuade the miners of two counties to join the union, and an injunction granted by a federal court does the same thing with respect to the miners of a single company in another county. ' Another Federal injunction prohibits the officials and organizers of the union from even making the statement that a strike exists.

The war is being fought through the use of private detectives. At least two associations of operators have contracts with the Baldwin-Felts Detective Agency for a number of "secret service" men. These "secret service" men work in and about the mines without letting any one know of their presence and report upon whatever activities their employers want them to report upon.

United States troops have been used in the war. Twice in the last six months of 1920 troops were thrown into Mingo County, where there was a strike. If you are an operator you believe that these soldiers were necessary to protect property and to preserve order. If you are a member of the union you believe that they were there to protect strikebreakers and help to break the strike.

On the side of the miners and the union, the war is being fought by opposing the legal measures of the operators, by striking, by appeals to class interest, by trying to make unorganized men want the union, by bitter denunciations of the operators, and by meeting violence with violence.

The union has lost most of its legal battles. It has called one strike recently to secure recognition of the union; that was in Mingo County, after a large number of miners there had joined the union and the operators had refused to meet union representatives in conference.

The miners have been appealed to in many of the customary phrases of class warfare. They have been told that they are being "robbed" and "enslaved" by their employers, and have been urged to use their power for the advancement of the working class. Agitation has been intermittent and based upon an opportunist policy. Organizers have gone into non-union territory at times when their own safety was in danger to appeal to the workers.

Violence has been resorted to on both sides. Who brought the first gun into West Virginia, or who fired the first shot, is now a question of history, of twenty years or more ago. It would be profitless to try to answer it.

The secretary of an operators' association told me that following the strike of 1902 it became a widespread practice among operators in non-union districts to employ * 'private police/ ' whose job was to know when organizers came into the territory and to tell them that they were not wanted. Many of these private police were armed. The operators have openly employed bodies of armed men during the course of several strikes; T. L. Felts, a partner of the Baldwin-Felts agency, told me that he had supplied the operators with 300 armed men during the Cabin Creek strike of 1912. The secretary referred to above declared that the ownership of arms and the resort to violence by the miners had been "in imitation of the methods employed by the operators after the strike of 1902."

To-day both sides are armed in many places. During my visit the civil authorities of Mingo County, encouraged by the presence of United States troops, took great quantities of arms from both miners and operators. An operator in Logan County showed me his "arsenal." Several union officials have deemed it necessary to take out licenses to carry revolvers.

This is, in brief, an outline of the civil war that is being waged in West Virginia to-day. The war is not State-wide. Of 95,000 mine workers in the State, some 53,000 are already unionized. There are large territories where the operators and the union are working amicably under joint agreements. The fight centres about the rest of the State. It is hottest in a few counties. Both sides are determined. Both believe they are right. There is no prospect of a peaceful solution.

In succeeding chapters these phases of the conflict will be elaborated and other phases discussed.

II Paternalism And What It Means

If you will take a map of West Virginia, you will see that it is much like the map of any other State. Deep ridges of hills cut across its eastern and southwestern portions, but aside from these there is little to distinguish it from other maps; the same winding lines indicate rivers, the same dots show where its towns are, the same network of railways connects these dots. One can easily imagine the life that goes on in these towns as being the same that goes on in small towns everywhere. He can imagine people owning their own homes, following a variety of occupations, attending to their own little affairs, and sharing in the town's common activities. He can imagine them acting like the independent citizens of other communities.

But he will be mistaken. Nothing of the sort goes on there. In the coal mining fields of West Virginia, comprising parts or all of thirty-six counties, the dots on the map do not stand for towns in the ordinary sense. They do not indicate places where people lead an interrelated, many-sided, and mutually dependent existence. They stand for clusters of houses around a coal mine. They indicate points at which seams of coal have been opened, tipples erected, and coal has been brought forth as fuel.

True, people live here, but they live here to work. The communities exist for the coal mines. They are the adjuncts and necessary conveniences of an industry. They are not independent groups of people. They are not even called towns in the language of the locality. They are called "camps."

No one owns his own house. No one conducts a store, runs a garage, sells groceries or furniture to his fellow townsmen, or amuses them in a movie theatre. No one is free to decide to-day that he will change his occupation to-morrow, because there is no other occupation than coal mining; the only way he can change his occupation is to move to some other region.

There is no independent family physician building up a practice by competing with other physicians. There are no local lawyers settling the community's difficulties over property rights, because the ordinary citizen has no property rights and can secure none. It is seldom, too, that any one campaigns for a new school or tries to find a better teacher, because these things are taken care of for him. No group of people ever get together and decide that the old church is too shabby and that they will get a new one. They wait till such things are done for them.

It is not quite true to say that no one does these things. The coal company does them all. The essential characteristic of a coal-mining civilization, in West Virginia as well as in some other parts of the country, is the extent to which the employer, the company, controls things. It is a paternalistic, in some ways a feudal, civilization.

Let us take a typical coal-mining plant. In the first place, the company owns practically all of the property. Usually it owns it for a considerable distance around the mine. It owns all of the buildings and the land on which they are erected. It owns the houses, the stores, the movie theatre, the Y. M. C. A. (if there is one), the school, the churches — in a word, the whole town. It employs the physician, and collects something each month from every miner to help pay him. It often guarantees the salary of the minister and not infrequently supplements that of the school teacher.

The company is thus responsible for the welfare of the town. It is the sanitary officer with all his usual functions. It takes care of the roads, provides the lighting, determines the variety of amusements, and sometimes supplies the police protection. It can exercise supervision over persons coming into the town and events there. It can keep undesirable people out. It can, if it wants to, even censor the mail, since the Post Office is usually located in its general store and one of its employees is Postmaster.

Moreover, the company does not pay the people of the town as factories and most other industrial establishments pay their employees. It does not pay in cash all that the men earn. Each pay day the miner is handed a statement, showing his total earnings for the preceding period, usually a fortnight, and the amount of his indebtedness to the company. This indebtedness has been incurred for various items. It includes his purchases at the company store and rent; it includes fixed charges for the lighting of his house, for coal supplied as fuel, for the services of the company doctor and the company hospital, and the sharpening of his tools. The total of all such charges is subtracted from his earnings and he then receives the remainder in cash.

The charges for these items vary. Rent ranges from $1.50 to $2.50 a month for each room; a standard fourroom house thus costs from $6 to $10 a month, $8 probably being the prevailing price. Most mining camps have electricity, and the charge for lighting the miner's house is sometimes uniform in a single camp, sometimes depends upon the number of lights. It averages, roughly, about $i a month. Coal, supplied by the company and burned in open grates, costs from $i to $2 a month, with 50 cents a load usually added for hauling; this is ordinarily a fixed charge and is the same the year round.

The doctor is employed by the company. The men pay fixed amounts whether they require his services or not. This is so small, ranging from $1 to $2 a month and sometimes varying for married and single men, that if a family experiences much sickness it is likely to get off cheaply. If it goes for a long time without sickness, it pays, of course, for services that it does not receive. Extra sums are usually charged for operations, and especially for child-birth. The charge for hospital service ranges from fifty cents to $1 a month; this, too, often varies for single and married men. Some companies have hospitals of their own and others use the hospitals in nearby towns.

Miners pay for the sharpening of their tools, usually about twenty-five cents a month. They pay five cents apiece for their "mine checks," metal discs numbered and hung on the inside of each car as it comes out of the mine loaded; this enables the company to credit each man with the number of cars loaded by him. The money for these checks is returned to the man when he leaves his employment. Some companies charge for the use of the wash house, in which the miners clean up after a day's work. Seventy-five cents a month is a usual charge for this.

Thus do the companies control all of the financial operations to which they are a part and insure themselves against loss. The extent to which they control is indicated by the fact that miners who take lodgers are not allowed in some camps to collect rent from the lodgers themselves, but this is paid first to the company and is turned over on pay day to the miner to whom it belongs.

This is the "check-off" system of paying wages. When all of these charges have been subtracted from the earnings of the mine worker he receives the remainder in cash. The amount of cash received depends, of course, upon how much he has earned and how much he owes the company. If he is able to work with fair steadiness and has no unforeseen expenses, he will have a substantial balance to his credit; on the other hand, when work is slack his fixed expenses may account for nearly all of his income. It is not an unknown experience for a man to find that he owes the coal company money when pay day comes around.

I have before me a sworn list of the men working for a large coal company, together with their earnings, debits and balances due in cash, for a single half month. This half month is from November 15 to November 30, 1920. There is no way of telling how many days any of these men worked. The average earnings of the 266 men on this pay-roll were $79.31 for the half month. Their average debits, or amounts owed the company, were $26.16. The average amounts received in cash, therefore, were $53.15. It is impossible to say just what expenses these "debits" covered, because many of the men may have purchased at places other than the company stores. One man earned $107.50 and owed the company $100.25, so that he received $7.25 in cash; another earned $72 and owed the company $65.55, so that he received $6.45. These are the two lowest amounts received in cash. Thirty-nine men received less than $30. The range of total earnings was from $193.57, the highest, to $24.32, the lowest. These facts are given merely as illustrations of the way in which the system works; it would be impossible to tell how fairly they represent the average for the State without much fuller data.