THE paradox of the Kentucky River cases was that they put the topic of labor law back in the congressional limelight. On May 8, 2007, speaking in Congress in favor of the Re-Empowerment of Skilled, Professional Employees and Construction Tradeworkers (RESPECT) Act, the labor lawyer Sarah Fox expressed a hope shared by many labor progressives in the waning days of the Bush administration—that having regained a majority in Congress, Democrats would now address some of the most salient legal obstacles to the organization of workers in the United States, including the legal definition of the worker:
Thanks to the work of the Chairman and others, and with the passage of the Employee Free Choice Act in the House, for the first time in a very long time we are seeing the beginnings of a national conversation about reform of our labor law to meet the desires of workers in the 21st century who want and need collective bargaining as a means to achieve individual opportunity, restore economic fairness, and rebuild America’s middle class. And one of the areas most in need of reform is the statutory definition of supervisor, which was added in 1947.1
“Clearly this will not be an uncontroversial proposition,” Democratic Congressman Robert E. Andrews noted about the RESPECT Act, which would have legislatively overruled the NLRB’s latest decisions in the Kentucky River cases by removing the terms “responsibly direct” and “assign” from the statutory definition of supervisor and by specifying that to be classified as a supervisor, a worker must exercise supervisory duties at least 50 percent of the time.2 Indeed, the short duration of the hearings, which lasted only one day, and the small number of witnesses suggested that pushing the law through would be no easy task. Still, in 2007, a number of factors seemed indeed to suggest that the political context had changed, making a debate over the relationship between workplace democracy and economic justice possible.
First, there was the growing perception of a deeply entrenched social inequality in America, which made the task of rebuilding the “middle class” very urgent in the minds of most progressives. This urgency was in turn compounded by the frustration of union leaders at the ineffectual character of the Wagner Act, which many workers and unions now circumvented because its cumbersome procedure afforded no meaningful protection. Finally, with the controversial debate over EFCA, which the House had passed in March 2007, both Democrats and labor progressives had shown their enduring faith in the basic notion that workplace democracy and economic justice are closely intertwined. In 2008, the advocacy organization American Rights at Work even sounded a sanguine note, suggesting in a report titled “The Haves and the Have Nots” that any attempt to foster economic justice would include a reappraisal of the way American labor law conceives of workers: “With the election of a pro-worker president and greater pro-worker majorities in Congress, the political conditions are ripe for addressing the problem of a diminishing population of workers with protected union rights. Congress could clarify or expand the definition of “employee” under the National Labor Relations Act (NLRA) to better reflect the realities of today’s workforce.”3 In retrospect, it is striking that such hopes, however modest they may have been, were ill founded. The continuing faith of labor progressives in the Wagner Act’s lofty ideals was not translated into significant political action. The Obama administration quickly decided to spend its political capital on health care reform, and like “second-tier” reforms such as immigration, both EFCA and the RESPECT Act fell by the wayside.4 Still, as this historical inquiry comes to a close, it is worth reflecting on the arguments made at that time.
At the heart of this progressive call for the RESPECT Act was the theory of the “aging” of labor law. According to this view, the Wagner Act has become an antique statute. As the legal scholar Cynthia Estlund has argued, “The core of American labor law has essentially been sealed off—to a remarkably complete extent and for a remarkably long time—from both democratic revision and renewal and from experimentation and innovation. The basic statutory language, and many of the intermediate level principles and procedures though which the essentials of self organization and collective bargaining are put into practice, have been nearly frozen, or ossified, for over fifty years.”5 In part this “aging” is owed the political and judicial constraints under which the NLRB has functioned over the past thirty years, particularly those owing to the conservative revolution. Nevertheless, scholars have also insisted that the framework of the act is no longer adapted to the contemporary economic environment because the workplace for which it was designed—the Fordist workplace—no longer exists.6 Seen from this perspective, the exclusion of supervisors and managers no longer makes sense because in the modern workplace there is no longer a sharp divide between the task of conception and the task of execution—indeed, boundaries between the two groups have increasingly blurred. Yet, because that divide is still embedded in the law, a large number of workers are deprived of their bargaining rights although they have nothing in common with the foremen who were the main target of the supervisory exemption in 1947. While the Fordist system of mass production in which the exclusion found its technical meaning has all but disappeared, today a growing number of workers, particularly semiprofessionals and knowledge workers, fall in a gray area between the categories that structured the midcentury workplace—labor and management. New management techniques such as job enrichment and teamwork also seem incompatible with the supervisory exclusion. As a result, as Sarah Fox argued, the time has come to deal with the tension that exists between the act’s explicit protection of the right to organize of white-collar professionals and its exclusion of “supervisors” who are expected to exert a form of authority over others.7
As this book has shown, there is much to be said for this theory—the debates over procurement buyers employed at Bell Aerospace in the 1970s, over university professors, and more recently over nurses exemplify the problems identified by proponents of the RESPECT Act. Because of this changing work environment, as time wore on, labor experts found it ever harder to apply the principles of the Wagner Act, which were designed to respond to the Fordist workplace. Moreover, these difficulties have indeed been compounded by the increasing reluctance of the courts to allow the NLRB the flexibility and autonomy it needs to address the needs of workers in the new workplace. In this respect, predictions that the law will be increasingly irrelevant to the needs of workers are well grounded.
Yet implicit in this approach to the crisis of labor law is a technological determinism that tends to deemphasize the thoroughly political character of debates over the legal definition of the worker and to mask the democratic deficiencies of the old order. Indeed, the exclusion of “supervisors” and managers from collective bargaining in 1947 was an alignment of technology and conservative political culture. It was the product of a bitter war to protect managerial values and secure the loyalty of workers who were not bound by authority of the machines on the assembly line. By focusing on its apparent anachronism and lack of clarity in the contemporary workplace, we risk naturalizing the main rationale for this exclusion—that unionism is incompatible with the faithful performance of duty.
The RESPECT Act was illustrative of such limits. By removing the terms “assign” and “responsibly direct” from the definition of supervisor, and by stipulating that to be classified as a supervisor, a worker must exercise supervisory duties at least 50 percent of the time, the law would no doubt have assuaged the fears of nurses, construction workers, and others who seemed to lose the most from the NLRB’s 2006 decisions. But in doing so, the bill would also have bolstered the notion that the right to organize is not a universal one. Indeed, the proponents of the act often referred to the opinion of the dissenters in the 2006 Oakwood case, saying the decision had created “a new class of workers under federal labor law: workers who have neither the genuine prerogatives of management, nor the statutory rights of ordinary employees.”8 Notably, Senator Dodd, the sponsor of the bill in the upper chamber, contended that it would restore the definition of the worker as defined in the Taft-Hartley Act, a “sensible precedent.” AFSCME leaders echoed this sentiment, stating that “these changes would respect the original intent of Congress”—rarely had the Taft-Hartley Act cut such a progressive figure on the political horizon.9
Thus, for all the talk about freedom of association and human rights, there was no attempt to challenge the managerial exclusion head-on. Rather, Congressman Andrews explained at the outset, the law reaffirmed that there were “people who are part of management, who are supervisors, and for whose divided loyalties would never make it possible to be both in a union and representing the employer.”10
Yet there is no more reason to argue that the democratic right to organize should be limited to workers with low responsibility levels than to suggest that the right to vote should be limited to property holders. In both cases, these restrictions suggest that that there is a deep-seated ambivalence about the right at stake.11 In fact, the historical relationship between those two conservative fears may be more significant than we think. As a number of scholars have shown, during the Gilded Age and the early twentieth century, businessmen and upper-class Americans were worried about the potential consequences of the working-class vote on their domination of politics. Particularly irksome to them was the possibility of higher taxes, which they saw as a threat hanging on both their property and the country’s prosperity.12 Efforts to prevent a liberal upsurge at the polls failed, and by the 1940s workers had largely asserted their electoral power and now bolstered the New Deal coalition. By then, however, the struggle over American democracy had taken a new form. With foremen organizing, businessmen once again sought to limit the extension of the democratic principle along a participatory axis, arguing that an expansive vision of industrial democracy in which every employee had a voice would threaten capitalism. Hence, from the 1940s onward, the concept of “loyalty” became the bulwark protecting the hegemony of the business world against the encroachment of freedom of association.
In point of fact, business executives and conservative think tanks shared none of the interest of the sponsors of the bill in the original intent of Congress in Taft-Hartley. Rather, they united against the prospect of a return to that “sensible precedent.” “This far reaching change would upset the long established balanced between labor and management in the workplace,” the Heritage Foundation explained in a memo opposing the law; “in order to run effectively, a company needs the undivided loyalty of its management.”13 The National Association of Manufacturers (NAM) echoed this sentiment, suggesting unionization of workers above the rank and file would foment discord among “employee classes”: “A successful business depends upon a united workforce, including supervisors whose primary role is to manage employees and operations of behalf of employers. The NAM strongly opposes the proposed RESPECT Act, which would undermine this foundation from which positive employer-employee relationships are developed and established.”14
In fact, in 2007 business associations could no longer invoke the threat of a rank-and-file takeover of the plants or even a lack of discipline, as they had in the 1940s when opposing the foremen’s unions. Yet they insisted that participation in a union was not compatible with the exercise of duties and responsibilities. According to the National Association of Waterfront Employers, for example, unionism among low-level supervisors would be detrimental to the safety and efficiency of dockers: “Ship superintendents are essential to carrying out the expert performance required of a stevedore company and are placed on the vessel to ensure that cargo handling operations are conducted in a safe and efficient manner. This can only be achieved with the undivided loyalty of the ship superintendent to his/her MTP stevedore employer, and not by splitting the superintendent’s loyalties between his/her employer and his/her union.”15 In similar fashion, the attorney Roger King—a noted conservative expert on labor law—suggested in his statement that without full control of their supervisors, companies would be unable to secure compliance with OSHA regulations and other important labor laws such as the Fair Labor Standards Act. Why unions would seek to thwart the enforcement of legislation designed to protect workers, King never said, but all the same, his statement reflected corporate confidence in the strength of the loyalty argument they had built over seventy years.16
More than the ossification of labor law, it is this successful struggle for loyalty that this book has traced, a struggle that demonstrates dramatically the power of business elites in making their vision of unionism the vision that has been adopted in American law. The consequences of this hegemony are threefold. First, today managers and supervisors—some thirteen million workers—compose the largest group of workers excluded from the protection of the Wagner Act, and the number of people whose duties straddle the line between professional and supervisory duties and are thus potential “managers” for the purposes of the Wagner Act is much higher, probably more than 20 percent of the workforce.17
The importance of this exclusion, however, goes well beyond the number of workers who do not have a voice at work. For corporate America, it was an ideological marker that partly delegitimized the labor movement and the labor unions by suggesting that market freedom is not totally compatible with unionism—according to conservatives, businesses need a reliable cadre of managers on whom they can count to design and carry out market strategies of growth and profits. The supervisory exclusion suggests that the agents of free enterprise cannot and should not be allowed to organize, and that this democratic freedom should be limited to the “employees” of free enterprise, that is, those who are “used” and exert little influence over the final result.
Most important, in securing the “loyalty” of managers and supervisors, businessmen have done more than imprint their values on the labor law; they have also secured the ability to use supervisors against rank-and-file unions. As a union organizer noted in 1979, “Supervisors are made to feel that his or her own personal worth, loyalty to the institution, and future depend on how many ‘no’ votes he or she can produce.”18 “Supervisors constitute management’s most important asset and are vital to combating attempts at unionization,” noted a corporate attorney in 1981.19 A mere look at the sundry publications aimed at antiunion campaigns by labor experts such as Alfred T. Maria suggests the extent to which companies have been able to use managers and frontline supervisors as the functional equivalent of the union organizer.20 There again, the law has been most supportive—it is legal for top managers to ask supervisors to contribute to defeating a unionization drive, and even to tell them that they might lose their jobs if they fail to do so. In fact, one may argue that the entire American working class was defeated when supervisors and managers were framed and defined as being impervious to freedom of association and collective bargaining.
“Progressives in the United States need an ideological offensive against the anti-union right, one that puts the idea of workers’ rights at the center of liberalism and democracy,” the historian Nelson Lichtenstein noted in 2008.21
Other scholars, arguing along the same lines, have contended that the right to organize should be a civil right protected by Title VII of the 1964 Civil Rights Act. Yet no such effort will be successful without challenging directly the definition of the workers whose rights are protected. Today’s progressives may thus find the earlier efforts of industrial pluralists worth pondering, if only because these efforts show that the expansion of the right to organize is far from being incompatible with the American disposition. Industrial pluralists were not steeped in socialist culture—indeed, they had largely abandoned the labor metaphysic. Nonetheless their language of social harmony through democracy—one inherited from the Wisconsin school pioneered by Commons—was a radical one, for it denied the validity of the loyalty argument. In rejecting class consciousness and pushing for an expansive vision of workplace democracy at the same time, what industrial pluralists offered was a postindustrial vision of labor relations that today could be quite useful to all progressives seeking to remedy the “aging” of American labor law and rebuild a legal framework for economic justice.