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Kansas Historical Quarterly - The Gompers-Allen Debate on the Kansas Industrial Court

by Dominico Gagliardo

November 1934 (Vol. 3, No. 4), pages 385 to 395
Transcribed by lhn; digitized with permission of
the Kansas Historical Society.

ON THE night of May 28, 1920, in New York City, occurred the climax in the controversy over the Kansas Court of Industrial Relations. Carnegie hall was crowded to capacity. Every seat was taken, and fire regulations were stretched to allow standing room. People from all walks of life were there, for everyone expected a great debate, a debate which in the words of its chairman, the Hon. Alton B. Parker, was perhaps to be the most momentous clash since the historic meeting between Lincoln and Douglas.

The industrial court law had been enacted a few months earlier after severe and trying strikes had caused some suffering and much public indignation. Upon the operation of this act the nation's interest was riveted. Against it organized labor stormed furiously, while its adherents offered a relentless and even vociferous defense. The debaters, Samuel Gompers, president of the American Federation of Labor, and Henry J. Allen, governor of Kansas, were recognized leaders of men, were unusually skillful debaters, and by their previous work had given abundant proof of deep faith in the positions they defended.[1]

Unfortunately, the question to be debated had not been specifically formulated. Mr. Gompers had desired to debate the question: "Has the state a right to prohibit strikes?" while Mr. Allen had insisted on the broader statement: "The Industrial Controversy; President Gompers will present the remedy of the American Federation. Mr. Allen will present the remedy as proposed in the Industrial Court."[2] Consequently, though the cheers, applause,, groans, and boos of the audience testified eloquently to the interest and satisfaction of the equally divided adherents, there was nevertheless little consistent opposition of argumentation. It would seem fair to say that in this historic debate the minds of the two contestants rarely crossed. Each man developed his own project, and each merely put on record his own views of the struggle between capital and labor.

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Mr. Gompers began by stating that the issue involved two principles: On the one hand, freedom, justice, and democracy; on the other hand, tyranny and injustice. He assumed it is a fundamental principle that liberty consists of the ownership of one's self, that the right to organize, strike and peacefully picket flows naturally from one's ownership of himself, and that therefore this right is essential to liberty.

If ownership of free men is vested in them and in them alone, they have not only the right to withhold their labor power, but to induce others to make common cause with them, and to withhold theirs that the greatest advantage may accrue to all. It further follows that if free men may avail themselves of the lawful rights of withholding their labor power, they have the right to do all lawful things in pursuit of that lawful purpose. And neither courts, injunctions nor other processes have any proper application to deny to free men these lawful, constitutional, natural and inherent rights.[3]

These principles, Mr. Gompers maintained, are among the inalienable rights embodied in the Declaration of Independence and are to be found in the statute laws, especially in the Clayton act, and in court decisions.

Not only is it true, he argued, that the right to organize, strike and picket is "lawful, constitutional, natural and inherent," i. e., "divine," but that it is essential to the public welfare. The rocky road of progress, he pointed out, is long and hard, filled with obscure turns and treacherous pitfalls. Valiant bands must of necessity find the way and lead others onward and upward. In the vanguard are the trade unionists, leading the toiling masses to a better life. By being organized into unions, this noble army makes greater and more rapid headway. And it is the better able to overcome those obstacles that naturally lie, or are deliberately placed, in the pathway of their progress. The strike, that terrible weapon which Mr. Allen dreads so much, is used only as a last resort. When all other means have been tried and found ineffective, then, by the sheer force of a strike, the obstacle is overcome, and the onward march is again resumed. The immortal Lincoln could say: "Thank God we have a system of labor where there can be a strike. Whatever the pressure, there is a point where the workingman may stop."

Violence, he asserted, "in the form of any attack upon life, body or property," is of course wrong, and those responsible for it must be punished to the end that it be wiped out. But to tie men to their jobs by making strikes unlawful is a confession that republican

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institutions and democracy no longer exist. And it is a subterfuge to say that antistrike legislation does not deny the individual the right to quit. The dissatisfied worker may indeed quit his job, "and just imagine what a wonderful influence such an individual would have . . . in the United States Steel Corporation." Deep in every man's breast is the hope of freedom, of better times for himself and his own; and only a poltroon would refuse to struggle for a better day for himself, his dependents and those who are to follow. Strikes, to be sure, are frequently uncomfortable and make for inconvenience; but there are worse things, and among them is that "degraded manhood" which results from antistrike legislation.

And how good have unions and strikes been, for America, land of liberty, whose Declaration of Independence was signed in the hall of a carpenters' union! Precious children have been rescued from the black depths of yawning coal pits, Mr. Gompers declared, from the interminably weary hours of mill and factory, and have been put into schools and into God's sweet sunshine to develop manhood and womanhood. Men and women have been rescued from the degrading sweatshops of the needle trades and from other equally degrading "home" work, when laws for their protection enacted by the state have failed. Those who favor nostrums such as that embodied in the Kansas industrial court law are men who, "impatient of the struggle of the human family, want to find a royal road to the goal of tranquility and peace." Alas! There is no royal road.

During the World War, Mr. Gompers said, American trade unionists loyally fought abroad and faithfully labored at home, to the end that autocracy might forever be destroyed. And now, now that the victory abroad has been won, they find that selfsame autocracy being forced upon them, find their hard-won liberty being destroyed at home. What a travesty on our sacred dead in Flanders Fields. The world is seething with deep unrest. In many countries this unrest is expressed in terms of mild or radical revolution. In our country it is expressed in terms of labor organizations and their activities. Our labor movement. has brought so much light and hope and opportunity to the masses that every law which forbids strikes will be futile, and "will simply make criminals and lawbreakers out of workmen who are honest, patriotic citizens." "We are at the parting of the ways," he warned, "and the time is at hand when it must be determined whether eternal principles of freedom, of justice and democracy shall hold sway or be supplanted by the tyranny and the injustice as of old."

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Governor Allen began his presentation by describing in some detail the events leading to the passage of the industrial court law. There was the lifting of the fuel ban by Doctor Garfield, the national coal strike and the exorbitant demands of the union, the receivership of Kansas mines, the governor's own fruitless efforts to induce Kansas miners to return to their work, the call for volunteers to operate the mines, and the production of coal by those volunteers. Interspersed throughout his talk were "human interest" stories. There were stories of shivering patients in a local hospital, of a poor washerwoman fearful of harsh and revengeful unionists, of groups of union miners willing to work, but afraid of their leaders, of a brave coal miner who, refusing to strike, was ostracised by his fellow unionists, and of uniformed ex-service men moving bravely and resolutely to the coal-mining front. But all this was not the substance of his remarks.

The substance of Governor Allen's statement was that the public was faced with a formidable condition. Time was, said Mr. Allen, when unions were harmless. That was thirty-five or forty years ago, when economic conditions were simpler. Under the guiding hand of those early unions, progress was made, victories were won from reluctant capital; and the governor could say he was glad for all "legitimate" progress made by unions. But now that times have greatly changed, that economic life has become so interdependent and so exceedingly complex, unions have become truly dangerous. What was liberty then is tyranny now. "Organization has become a huge thing like a Frankenstein in its potentiality. Its power seems unsuspected by Mr. Gompers, who has watched it since its inception as a crude, rudimentary thing, devoted to simple and laudable objects."

The right of an individual worker to quit his job cannot be questioned, and it is not questioned, the governor said. The Kansas law specifically safeguarded that right. But a strike? That is different. A strike is a private conflict. between capital and labor. And more important still, it is a conflict that is initiated by union leaders rather than by union workers. The Kansas industrial court law was not really aimed at the workers; it was aimed at their leaders. "The law does not take away from the individual workman the divine right to quit work." It merely takes away from Mr. Gompers the "divine right to order a man to quit work." Naturally, union leaders resent this. Yet the law does not even take away the worker's right to organize and bargain collectively through union leaders, for

GAGLIARDO: THE GOMPERS-ALLEN DEBATE 389

these rights are both specifically safeguarded in the act. But it does require reasonable continuity of operations, and eliminates that "economic pressure" from both workers and employers, of which the public has "had enough."

To-day, he continued, strikes bring unendurable suffering to an innocent party-the public. That is a great wrong. The union worker may gain, but the public loses, more even than the union gains. Surely, in a civilized society, this should not be. There should be some way to prevent the needless suffering of the party of the third part. Man's activities in other lines have been curtailed and regulated for the public welfare. Why not here? Already the state has protected the workers. Child-labor, anti-black-listing, anti-injunction, convict labor, free employment services, mechanics' liens, laws regulating the working conditions of women and minors, safety codes for mines and factories, and other laws have already been enacted and made effective. "The quarrel between capital and labor is the only private conflict the government still allows to go on." Unions and strikes are costly. High dues and loss of wages take a heavy toll from workers.

The time has now come when the capital-labor conflict should also be regulated. Surely, Governor Allen insisted, a just government can do better by mankind if it makes impossible a recurrence of those awful conditions which prevailed in the winter of 1919-1920, when miners and operators were at each others throats and the public was helplessly freezing. A fair law can impose justice upon both employers and workmen and give first consideration to the interest of the public. This Kansas has done, and the industrial court law is the only effective method yet attempted to protect the public interest. The right to strike has been curtailed. A great hue and cry has gone up, and it is shouted from the house tops that labor has been deprived of its only weapon. But it is an adequate answer to say that labor has been given "in every honorable controversy the more reliable weapon of the state government." Indeed, many workers, even some trade-union leaders, and many prominent persons have expressed approval of the industrial court. Trade unions in Kansas are actually using it. For, although the wheels of justice may grind slowly, they grind exceedingly fine, and this is being more clearly recognized by thoughtful persons.

In brief outline these were the principal arguments of the two opponents. During the course of the debate, as each alternated with the other in presenting his ideas, both Mr. Rompers and Governor

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Allen necessarily took some cognizance of the other's remarks, and there was some thrusting and parrying, but for the most part this was done only in a desultory and haphazard manner. At one point, perhaps the most significant one in the entire debate, Governor Allen asked Mr. Gompers three questions:

When a dispute between capital and labor brings on a strike affecting the production or distribution of the necessaries of life, thus threatening the public peace and impairing the public health, has the public any rights in such a controversy, or is it a private war between capital and labor?

If you answer this question in the affirmative, Mr. Gompers, how would you protect the rights of the public?

And . . . who had the divine right to forbid the switchmen to strike in their outlaw strike? Who controls this divine right to quit work?

This thrust struck home. The philosophy of the unionism Mr. Gompers preached was of the "more here and now for us" variety. If the public is hurt, why that is too bad, but we must progress. Let the employer pass the burden on to the consumer, to the public. Yet he couldn't say this, for then Governor Allen would have made his point.

Mr. Gompers therefore attempted first to put off the answer. "If I had the time, I would answer the governor." From the audience came cries of "You can't! You can't!" This nettled Mr. Gompers, and he shouted: "I will prove it to you, if I live long enough." Then he attempted to parry the thrust. It is "really a catch question" comparable to the question "Do you still beat your wife?" "Let me say this, however, that an innocent child can ask more questions of his father . . . ." Here he was again interrupted by laughter and great applause, and cries from the audience exhorted him to "Answer it! Answer it!" But the veteran president of the American Federation of Labor could only say in reply: "I assure you of an answer, if I have the time, even this evening."

The questions were not answered during the course of the debate. All that the idol of organized labor could say was that if strikes in this country had prostrated the economic system, there might be some justification for the questions, but that the United States, with all its strikes, led the world in production. He added that "if strikes were the abomination and the curse that some people want to attribute to them, then China ought to stand at the head of civilization."

A month later Mr. Gompers attempted in a supplementary statement to answer Governor Allen's questions. I shall discuss first Mr. Gompers' reply to the third question. The question concerning

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"rebel" strikes, i. e., those not authorized by unions and opposed by union officials, no doubt greatly troubled Mr. Gompers. Had he answered it properly, he should have had to distinguish between "regular" and "rebel" strikes. This would have led him openly to qualify the "divine" right to strike, and would necessarily have led to other qualifications. But the question was not properly answered. Mr. Gompers said it was absurd and revealed the insincerity of the critics. "Labor is damned if it does and damned if it doesn't," he declared. The whole thing boils down to this, that a "minority, goaded by employers beyond endurance," defies the majority. "That is all there is to that."

This is certainly an unsatisfactory answer, assuming that the strike is "divine," or is an inherent right. For on that assumption no one, including union officials and even a majority of the members of a union, has the right to oppose a strike. But if, on the contrary, the right to strike is based essentially on democratic principles, which theory the writer accepts, then Mr. Gompers' answer is sound as far as it goes. Yet it does not go so far as some might wish. For the same democratic principles justify the state, which includes the union, in forbidding any or all strikes. Thus Mr. Gompers' answer was rather an argumentum ad hominem than a reasoned reply.

In discussing the question relating to the public welfare, Mr. Gompers tried first to evade it by saying that the language was improper because it described a strike as a "private war between capital and labor," which, he said, is perilously near thoughtlessness or ridicule of mankind's struggle towards an ideal. Governor Allen had not really described the conflict in that way; he had asked if such a struggle was a private war. Then came another attempt to evade the issue in the statement that to the employer employment has meant profit while to the workers it has meant a "means of sustaining life." This statement might have been lifted bodily from the works of Karl Marx, for whom, it must be added, Mr. Gompers had no love.

Large strikes, Mr. Gompers continued, temporarily affect the general public, but the general public includes union men and women, who account for one-fourth of the total. Now when a strike affects the production and distribution of the necessaries of life, thus threatening the public peace and impairing the public health, he admitted, the public does have rights. Here for the first time Mr. Gompers really joined the issue, and could be expected to explain what are the public rights and perhaps how they are protected.

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But that he did not do. He merely said that when these strikes occur, the union strikers are usually the first to recognize that the public has rights. But how do unionists show this recognition? Mr. Gompers did not say, did not even suggest. Here he might have struck a blow for organized labor. Had he shown that striking trade unionists do concern themselves with the public interest Governor Allen's sword would have been broken! Instead, he contented himself with saying that there are few such serious strikes which so affect the public. More evasion on the part of Mr. Gompers, and he asserted that most of these have been "strikes in which employers, or public officials influenced by the employers, have created the breach of peace by the use of thugs, armed guards and detectives," a statement which contains only too much truth, but which is quite beside the point.

And then for once he really defined his position. "The public has no rights which are superior to the toiler's right to live and to his right to defend himself against oppression." This constitutes the first ground, the middle ground, and the final ground on which Mr. Gompers stood. The trade unionist is in the vanguard of human progress. "So far as labor is concerned, the right to strike must be and will be maintained, not only as a measure of self-defense and self-advancement, but as a measure necessary to public progress." When, but only when, "industry ceases to be operated for profit alone" will it be time to "relax that eternal militant vigilance which has saved the workers from the abyss and given them a position of power and intelligence fitting our Republic and our time."

What have we here? Samuel Gompers, arch-enemy of socialism, converted to the hated doctrine? I think not. We have rather a man who has been pushed to the wall, inadequately armed and fighting desperately.

This is strictly in accord with the philosophy of the trade unionism which Mr. Gompers represented. That unionism is almost totally devoid of altruistic principles. Mr. Gompers maintained that in bettering their own conditions, trade unionists improved the lot of the masses. This, I think, is true. But it is also true that the improvement of the masses is purely and simply a by-product, and the dominant type of trade unionism does not concern itself with the by-product. Mr. Gompers was unable to answer Governor Allen's main question, and for the inescapable reason that the public welfare was not one of the prime considerations in his brand of unionism.

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Perhaps the question was unfair in a debate. It is no simple matter to evolve on the spur of the moment a short answer to a momentous question.[4] But I do not think the question was unfair. For months Governor Allen had been speaking before groups in different parts of the country, extolling the virtues and the success of the Kansas industrial court law. And Mr. Gompers trailed after him, trying to undermine what. the governor had said. The fundamental problem involved in the court law was not new to Mr. Gompers. Any trained debater should easily have forecast the tenor of Governor Allen's argument. Why, then, when for the first time in the history of American organized labor, the challenge of the public interest was effectively hurled at trade unionism, did Samuel Gompers, the foremost spokesman of the American trade union movement, persistently evade the challenge? I can see only one answer. Gomperian trade-union philosophy had not adequately felt and considered the challenge.

But a different type of union leader, representing a different brand of unionism, might have answered the question, even on the spur of the moment. Sidney Hillman, president of the Amalgamated Clothing Workers, might have said that the struggles of his union were for the purpose of introducing a better industrial organization, one which promised not only to better the conditions of the worker, but to increase the efficiency of industry and to assure the public a better and a more certain supply of goods.[5] The soundness of this reasoning most certainly would not have appealed to all men. But the issue would have been definite. The question could then have been debated. Trade unionism could then have attempted to show that its methods are superior to state regulation. It would have been possible to appeal to science and reason rather than to emotion and sentimentalism. The strike could have been considered pragmatic rather than divine. But it was not so. And at this crucial point where the minds of these two men clashed, Governor Allen undoubtedly succeeded in inflicting the greater damage.

Governor Allen answered Mr. Gompers' supplementary statement in a stinging sur-rebuttal. That statement, Governor Allen said, was in essence this: "The public be damned." The toiler's right to live is not questioned. But many great strikes are called rather "to dictate the terms of life to society." Mr. Gompers failed to distinguish between a strike in private industry and one in an

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essential industry, which attempts to "coerce the public" and force the issue by means of economic pressure or distress. To say that industrial conflict in essential industries cannot be settled by the state is equivalent to saying that we must be governed by organized capital or organized labor. The capital-labor conflict is anti-social, and "there is no element of progress in the strike. It is reactionary." The collective bargaining which Mr. Gompers offered as a basis of industrial peace "is not a conciliatory or harmonizing function, but a one-sided arrangement whereby the employee dictates to the employer and lets the devil take the hindermost, which is usually the public."

Here, I think, Governor Allen's enthusiasm led him astray. To say that without compulsory arbitration we have government by organized labor or organized capital is to identify the scope of limited industrial action with the broader scope of government. It rarely happens, even in important conflicts, that the victorious contestant rides rough shod over the vanquished and the public. To say that the capital-labor conflict is antisocial and that there is no element of progress in the strike, shows, I think, a misunderstanding of social processes. This does not mean that the capital-labor conflict represents the most desirable form of social process in that field. But it does mean that the struggle between capital and labor is, in general, a useful social process. It is costly, perhaps needlessly so, but it is nevertheless useful. Competition is also costly, perhaps needlessly so, but it has certainly not yet outlived its usefulness. I think also that Governor Allen is wrong in his belief that Gomperian collective bargaining is a one-sided arrangement which the union dictates at the expense of the public. The collective bargain is rarely ever dictated by the union, but is generally the product of much deliberation, of give-and-take by both sides, and nearly always with some consideration for the public. It is unfair to organized labor to say that the employer and the public are both at its mercy. And I think it is also an unjust criticism of Mr. Gompers to say, as Governor Allen did, that he once considered the strike a last resort, but now considered it the first resort. The strike is a last resort, and it has, in general, been so used by organized labor.

In conclusion, Governor Allen said that Mr. Gompers' first appeal was on behalf of union leadership, his second on behalf of organized labor, and that for the unorganized worker and for the public he had no consideration whatsoever. Here again it appears to me that Governor Allen was less than just. The large number of union

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officials drawing salaries seemed to irk the governor, and on more than one occasion he gave vent to his feelings on that subject. I think Governor Allen both misunderstood the function of the fulltime union official, and underrated that official's loyalty to the rank and file of organized labor. Samuel Gompers set a high standard of honesty, faithfulness, and efficiency for his fellow leaders, and he cannot properly be charged with being mercenary in his motives or acts.

I think, also, that the whole episode would have been lifted to a higher plane, and would have been less confusing if Governor Allen had clearly and consistently limited his discussion to strikes in essential industries. That he certainly did not do. Many, and I think most, of his severest criticisms can fairly be interpreted as applying to all strikes. And I also believe that Governor Allen really felt bitterly towards all strikes and not merely towards those in essential industries. But whether or not this last opinion is sound, I am convinced that the issue was not drawn clearly enough or maintained consistently enough. It therefore follows, I believe, that the solution of the fundamental problem involved in prohibiting strikes was not appreciably advanced in the debate between Mr. Gompers and Governor Allen. Consequently, this much heralded clash, which at the time appeared to hold great promise of enlightening the public on the fundamentals of the struggle between capital and labor, has sunk into almost complete oblivion.

Notes

1. A representative of the American Federation of Labor challenged Governor Allen to debate the industrial court law with Clarence Darrow. This challenge Governor Allen declined, but suggested a debate with Gompers.-New York Times, April 26, 1920, 17:7.
2. Henry J. Allen, The Party of the Third Part (N. Y., Harper and Brothers), pp. 93, 94.
3. Gompers-Allen Debate (N.Y., E. P. Dutton & Co., 1920). All quotations are taken from this book except where otherwise noted.
4. "The Kansas Challenge to Unionism," New Republic, v. 27, No. 339, June 1, 1921, p. 4.
5. Ibid., p. 5.