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CHAPTER XI

The Sad Story of a Brave Man

Elmon Middleton

The Wagner Labor Relations Act became the law of the land on July 5, 1935. But not in Harlan County. A new UMWA organizing drive, spurred by faith in the new law, drove the operators and their tough boys to defy both the United States Government and the State of Kentucky.
For the six months prior to passage of the Wagner Act, Governor Ruby Laffoon had been trying to restore order in Harlan County. On February 12, 1935, a military commission, headed by Adjt. Gen. Henry H. Denhardt, was appointed to conduct an investigation and take evidence on the situation existing in Harlan County. The Commission held hearings in the months of March and May, 1935, and filed a report with the Gover­nor in which it stated
"There is no doubt that Theodore Middleton, Sheriff of Harlan County, is in league with the operators and is using many of his deputies to carry out his purposes."
On July 2, 1935, on the basis of facts brought out at the hearing and affidavits filed with him, Governor Laffoon brought charges against Sheriff Theodore R. Middleton, calling for his removal from office for "neglect of official duty" on ten separate counts. However, the Governor's term expired in December 1935, so he adjourned hearings on the charges, due to impending primaries and the election.

On July 8, 1935, William Turnblazer and Joseph John Timko, international representative of the United Mine Workers of America from Indiana, who had been assigned to assist in organizing the miners in Harlan County, visited Circuit Judge James Gilbert at Pineville, in Bell County. They asked the Judge what prospect there was for protection of the union in Harlan County if it tried to exercise rights supposedly guaranteed by the National Labor Relations Act. The Judge merely counseled them to stay out of Harlan County. In spite of this advice, union organizers determined to try to assert their legal rights.


In July 1935, there were only three companies in Harlan County still operating under contract with the UMWA the Black Mountain Corpora­tion, the Black Star Coal Company and the Clover Splint Coal Company, the total union membership was about twelve hundred men. Encouraged by the National Labor Relations Act and the charges Governor Laffoon had Placed against the Sheriff, the miners once again began to join the union. By September 1935, the membership of the union had doubled, with thriving locals in thirteen mining camps.
The organizing drive was met head-on by the Harlan County branch of the Syndicate. No change in method of operation was needed. Ben Unthank, chief deputy for the Harlan County Coal Operators Association, lavishly disposed of the Association's funds in hiring assistants to drive the organizers out of the county. Whenever union representatives entered the County, they were trailed along the highways by deputy sheriffs.
On July 18, 1935, the union finally succeeded in renting an office in Harlan Town. Timko, accompanied by two other organizers, A. T. Pace and James Alien, drove into Harlan County on the morning of July 20 to establish the office. On the way, their car was forced to halt by another automobile that blocked the road at a narrow spot. Unthank, together with two buddies, George Lee and Frank White, emerged from this car, carrying sawed-off shotguns and pistols; they approached the organizers' car and ordered them to turn around and leave the County. The union abandoned its office in Harlan County.

During the summer of 1935, the National Guard was frequently called out on active duty in Harlan County by the Governor. The home of E. J. Asbury, superintendent of the Black Mountain Corporation, which operated under a contract with the union, was dynamited. Mr. Asbury believed Harlan County deputy sheriffs committed the outrage. To guard his home, the Governor assigned two members of the National Guard on June 1, 1935, stating in his executive order:

"It having been brought to the attention of the Governor through reliable sources that a state of disorder exists in Harlan County in the vicinity of the property of the Black Mountain Coal Corporation, and that the home of Mr. Asbury, Superintendent of the Corporation, was re­cently dynamited, that notwithstanding this situation, the Sheriff, Theodore Middleton, refused to permit the regular Deputy Sheriffs heretofore serving as guards on said property to continue as deputy Sheriffs, having discharged them from his force and there being no other public officers available in the vicinity of the Black Mountain Coal Corporation mines other than such deputies as might be furnished by said Theodore Middleton, Sheriff of said County, and it further appearing from reliable sources that many deputies appointed by said Sheriff have been guilty of lawless acts, intimidating, threatening, abusing and beating many peaceful citizens of Harlan County, a state of lawlessness is declared to exist in the Black Mountain Coal Corporation section of Harlan County, and Captain Diamond E. Perkins, Commanding Officer, Company "A", 149th In­fantry, is directed to detail two enlisted men of his Company for active duty service in Harlan County to serve in the vicinity of the Black Mountain Coal Corporation property. The said men so detailed are hereby ordered to be placed on active duty and they will serve as peace officers for the purpose of protecting life and property in the vicinity of Black Mountain Coal Corporation."

It was quite obvious that Asbury's house was dynamited in an attempt to intimidate him and force the Peabody Coal Company to operate on a non-union basis. Asbury later told me that Theodore Middleton sent him three outlaws to guard the property "without me asking for them and demanded that we pay him for their services." He said, "I sent them back to Middleton and told him to go to hell with them."

Sheriff Middleton filed suit with Judge James Gilbert to enjoin Adjutant General Denhardt from bringing the National Guard into Harlan County "to preserve the peace" on the ground that this was the function belonging to the Sheriff alone. Judge Gilbert promptly granted a sweeping injunction, which forbade the National Guard from "preserving the peace." He even enjoined them from appearing in Harlan County in uniform. This remarkable order defying the State was set aside by the Supreme Court of Kentucky on November 1, 1935, in a caustic opinion which pointed out that the Sheriff did not have a "property right in the preservation of law and order."

The ridiculous contentions of Sheriff Middleton and of Judge Gilbert that the Sheriff enjoyed a monopoly on the right "to preserve peace" in Harlan County is even more ironic when recalling the grim events that took place in September 1935. Elmon Middleton, the County Attorney, who had made a genuine effort to redeem his campaign pledges and secure impartial law enforcement in the County, openly broke with the other members of the County Administration. He determined to lay the charges of the United Mine Workers before the Grand Jury and press for prosecu­tion against the deputy sheriffs and thugs who were terrorizing the com­munity. His friend and confident was the Rev. Carl E. Vogel, who was then Pastor of the Cornett Memorial Methodist Church, whose congrega­tion included professional groups and coal operators in Harlan County. In spite of the fact that most of his flock was anti-union, Mr. Vogel had the courage to demand the rights of free speech for all Harlan County citizens. His sermons that year were filled with eloquent pleas for justice in Harlan County. It is a matter of wonder to me now, knowing the arrogance and stupidity of the gun thugs that Mr. Vogel was not shot down in his Pulpit.

In August 1935, Joe Timko had a secret meeting with Elmon Middleton. They discussed the possibility of conducting a grand jury investigation into the methods of intimidation used against the miners. The meeting was conducted secretly at the request of the County Attorney who, according to Mr. Timko, said:
"He was going to try to do all he could to help us to clear up that situation, to stop this intimidation, but that he was on the spot himself, and if he was seen talking to us, it would just put him on the spot that much more.

The grand jury investigation was never held because Elmon Middleton was assassinated on September 5, 1935. His close friend, Mr. Vogel, described the murder in the following words:

"It was the Sunday immediately preceding his death, and he remained at my home, coming in after church on Sunday night, and he remained at my home until about 11:00 or 11:30 o'clock at night, and during that time we discussed the general situation of this collusion between the coal operators and the Sheriffs office, the necessity of cleaning it up. But Mr. Middleton's statement was that he did not believe that he would be per­mitted to live long enough to do his job that needed to be done. His statement was that he believed himself to be a marked man, and he likewise believed that I was a marked man because of my interest in trying to clean up the situation."
"He died a violent death. He stepped into his car and put his foot on the starter, and a dynamite explosion occurred that injured him suffi­ciently so that he lived only a matter of minutes afterward. I stood with him and beside him in the Harlan Hospital, holding his hand, until he died."

Otis Noe, who had served as a deputy sheriff under Theodore R. Middleton, was convicted of the murder. The only County Official dedicated to impartial enforcement of the law had been removed from the scene. Mr. Vogel did not last long either, but at least his removal was without violence. He left Harlan County in September 1935, shortly after the death of Elmon Middleton. He was transferred to another church as a result of "quite a sheaf of protests, chiefly from the coal operators of my own church, asking for my removal from Harlan as a pastor." He said that the only reason for his transfer was the position he had taken in opposition to lawlessness and terrorism in the county. According to his testimony to the LaFollette Committee, when his new appointment had been determined, "the bishop put his hand on my shoulder and said, 'Boy, I am glad you are getting out of there without a bullet through you'."

Miners in thirteen camps stopped work on September 22, 1935, and demanded that their employers sign a contract with the union. Armstrong R. Matthews, superintendent of the Clover Splint Coal Company, told the UMWA's Timko that he was unable to operate his mine under union con­ditions and compete with non-union mines in the same area. Matthews testified that he discussed the situation with George S, Ward, secretary of the Harlan County Coal Operators Association, and then notified the Sheriff of his determination to operate without a union contract.
This strike revived the ferocity of Ben Unthank. Shortly after mid­night on September 25, 1935, the third day of the strike, Ben Unthank, accompanied by his cronies, Lee and White banged on the door of Howard Williams, a Negro union member who held the office of vice president of the UMWA's local at Clover Splint. Williams opened the door, and the three thugs pushed past him into the house and ordered him to get dressed, stating that he was under arrest. Unthank and the two other men forced him into their car and drove over a mountain road leading to Virginia. Somewhere near the State line, after a brief argument as to whether or not they should kill him, they finally let him go, warning him not to return to Harlan County. Williams hid in the bushes until they left and then made his way to a coal camp at Bonnie Blue, Virginia. His wife had immediately notified her neighbors of the kidnapping and a search party had been formed to look for him. The next morning the Clover Splint camp was over-run by deputies who refused to allow the miners to leave their houses, speak to each other, or even to make purchases at the company store. The kidnapping of an officer of their local union and the presence of the armed deputies cowed the miners and the strike collapsed.

That day was described by Mine Superintendent Matthews to the LaFollette Committee as follows: "On the 25th day of September, 1935, the deputy sheriff took over the camp on my orders to the Sheriff. For two hours early in the morning, they kept anyone from going into the streets. I left everything to the judgment of the Sheriff. He said the deputies were preserving the peace." Matthews admitted, however, that there had been no breach of the peace.

Strikes in the other mines were broken just as easily and in just about the same way. Williams sought out Joe Timko, and told him of his kidnapping. Reports of the activities of the deputies and of mass evictions of strikers from company towns reached Timko, and he informed Governor Laffoon of what was taking place. The Governor then called out the National Guard, proclaiming that a "reign of terror now exists in said (Harlan) County and has existed for some months." Thereupon Judge Gilbert took immediate counteraction. He announced an "inquest" in this language: "Since the adjournment of the grand jury here, it has been reported in the press of the state that some two hundred people have been evicted from their houses, and that there has been a reign of terror and lawlessness in Harlan County; that people have been taken in charge, whipped, and driven out of the County, and based on said reports, as shown by the newspapers, the Governor has sent troops into Harlan County for the third time, and that the Court has had no information or knowledge, direct or indirect, of any such conditions existing in Harlan County, and in order to satisfy himself a man by the name of Timko and others have been summoned in here, who, it is reported, have circulated these reports, and this investigation is held for the purpose of finding out whether there is any justification in these reports."

What the hell kind of an "inquest" was that?
These unusual proceedings had no basis at law, yet Judge Gilbert issued summonses for Joseph John Timko and Robert Childers, the latter also an organizer for the UMWA, to appear at the Courthouse in Harlan Town on September 30 and October 1. Timko came, bringing with him thirty witnesses to tell the story of violence in Harlan County.

Before the very eyes of Judge Gilbert, heavily armed deputy sheriffs pursued union witnesses around the Courthouse and openly menaced and threatened them. Physical violence was prevented only by the presence of National Guard officers. Timko described the proceedings to the La-Follette Committee:

"I was not able to get around in the Courtroom to talk to these witnesses, as I was constantly being pushed around by the deputy sheriffs. I also saw there and particularly recognized one who seemed to have much pleasure in following me around in the Courthouse, with the exception of going into the Courtroom, and that was George Lee."
Howard Williams was placed on the stand to testify about his kid­napping. His kidnappers were in the Courthouse play-acting as peace officers. In spite of Williams' testimony, the Court would take no action to bring the kidnappers to justice; however, Judge Gilbert figured out a way to send the complaining witness to jail. He was held as a material witness, needed for the grand jury. His bond was set at three hundred dollars, a little beyond the means of a coal miner making four dollars a day. So they locked him up. Nor was he the only union man thrown in the calaboose. Two other witnesses who described details of the "reign of terror" were similarly treated. Williams testified about this as follows:

"Mr. Adkins, Mr. Jones and I were confined in jail for the lack of $300 bond. We had testified at the request of Judge Gilbert about the violence in Harlan County. We were supposed to be held as material wit­nesses. I testified about being kidnapped by the deputy sheriffs. Mr. Jones testified about so many deputies being on the streets of Clover Splint in the morning. Mr. Adkins testified about the deputies kicking and cussing him and forbidding him from going to the post office. We remained in jail from 7 P.M. Tuesday. We later testified before the grand jury but it took no action."

This brand of "justice" was challenged in a damage suit against Judge Gilbert for false imprisonment, filed in the Federal District Court of London, Kentucky, by Howard Williams. Judge H. Church Ford, of the Federal District Court, in instructing the jury, stated that:

"These men were not legally committed to jail." But he added:
"Judges are not held civilly liable in damages for exceeding jurisdic­tion, nor for making orders or requirements that are merely beyond their jurisdictions, if they have jurisdiction of the subject matter."

This latter bit of double-talk merely said in the ceremonial language used by lawyers that nothing could be done to Judge Gilbert.
Judge Gilbert's so-called "inquest" again temporarily blocked efforts of the union to operate in Harlan County. The Black Mountain Corporation was the sole union-operated mine in Harlan County.



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