On September 29, 2006, the National Labor Relations Board (NLRB) touched off a rare controversy over labor law when it published its rulings in the “Kentucky River cases”—three legal disputes bearing on the definition of workers in American labor law. Holding that nurses acting as “charge nurses” in an acute care hospital in Detroit had no substantive bargaining rights because they were not “employees” but “supervisors” directing other health care staff, the conservative majority of the NLRB elicited a chorus of outraged responses from union leaders and Democratic Party members.1 Nancy Pelosi, the Democratic Speaker of the House of Representatives, lost no time in condemning the agency. The board’s new policy regarding the definition of “employee,” she argued, was a “ruthless attack on American workers,” one that fitted quite well in the antiunion pattern set by President George W. Bush’s labor policies since 2001. “In an economy when wages are down,” she lamented, “and the income of middle class families continues to stagnate, the Bush administration continues to undermine hardworking families.”2
Quite beyond their economic impact, the Kentucky River cases also raised important questions about civic belonging for workers seeking to reconcile freedom of association with the ascribed categories of labor law, questions that Cheryl Johnson, the president of United American Nurses, formulated rather well. “I’m a registered nurse. I take care of patients. I’m very good at it. I make decisions every day, and I give a few orders from time to time whether I’m assigned as charge nurse or not. I am a key leader on the health care team. But I’m not a supervisor. Today, we have a Labor Board that makes its bread and butter out of determining who should get the privilege of exercising their democratic rights. When did this become a privilege granted only to a few?”3
In 2006, there were no readily available answers to Cheryl Johnson’s query. While demonstrators and critics of the NLRB deployed a language of rights that revolved around ideas of justice and democracy, no work of political history offered insight into the origins of the predicament of these aggrieved workers. Responding to ominous reports suggesting that as many as eight million workers would lose their right to organize as a result of the Kentucky River cases, the AFL-CIO filed a complaint with the Committee on Freedom of Association of the International Labour Organization, arguing that the United States had failed to respect its membership obligations—indeed, according to international conventions, workers “without distinctions whatsoever” shall have the right to join a union.4 Yet the legal and political origins of the controversy remained unaddressed. Why the Wagner Act, a law adopted in 1935 to promote economic citizenship and democracy in the workplace, could now be interpreted to exclude millions of American workers from this very right remained an open question.5
This book is an attempt to fill this gap in our understanding of the history of American democracy. Behind the Kentucky River cases lies a hidden history of power and domination in the workplace. Largely unknown to historians, this history harkens back to the 1947 Taft-Hartley Act, when businessmen pressured Congress into amending the National Labor Relations Act so that foremen in the nation’s leading automobile, steel, and mining companies would not be allowed to organize and make common cause with rank-and-file workers. Relying on a concept inherited from the colonial master and servant doctrine (the body of rules and statutes relating to the relationships between masters/employers and workers/servants), corporate America insisted that unless they were production workers, employees owed a duty of fealty and loyalty to their employers, making their participation in unions impossible.6 “A man can’t serve two masters,” businessmen repeatedly argued to press their case, suggesting that for supervisors, foremen, and managers, unionism was incompatible with the faithful exercise of duty because it would result in “divided loyalties,” that is, these workers would be torn between their allegiance to the union and their responsibilities toward their employer. The loyalty argument was premised on the notion that democracy and individual rights can be accepted only to the extent that they do not disturb existing social and economic structures.7
As a result, since the 1940s the protection of the right to organize in the United States has been structured by a tension between freedom of association and loyalty with which historians have yet to grapple. Ranging from the courtroom to the workplace and back, this book follows a large cast of characters, including workers, union leaders, labor experts, National Labor Relations Commissioners, members of Congress, judges, managers, and business associations, who were involved in a power struggle withinwhat we once thought was the stable “New Deal order.” A focus on the history of the legal definition of the worker and the contested meaning and boundaries of workplace democracy thus helps us restore tension to our vision of the political history of the twentieth century.8
This investigation also offers insight into the cultural and political power of American business. Although the result of the struggle over the definition of the worker was never foreordained, in the end it was driven by the ongoing and largely successful exercise in cultural domination that businessmen conducted over labor law. In tracing an arc of struggles in which the battle over the legal definition of “workers” was made public and given legal resolution, I hope to shed light on the creation of a discourse making the right to organize incompatible with the faithful performance of duty.
Uncovering this story, one finds that there is more to the history of management than the organizational framework inherited from the work of Alfred Chandler.9 As this book shows, at different junctures executives were seriously worried about the possible defection of workers they deemed essential to their authority over the workplace, including foremen, nurses, procurement buyers, and even, in a famous case, university professors. These workers’ continued presence in the realm of management as defined by businessmen was secured through the law, not through ideas about strategy or efficiency or middle-class, individualist values. Hence the traditional idea that white-collar employees are not interested in unions can be qualified in important ways. While the workers featured in this book never knew “moments of madness” during which they collectively transformed their fate and let politics burst into their lives, they did believe that they stood to gain much from collective bargaining and little from the individualism and the corporate ethic that businessmen sought to impose as their social role.10
In thinking about this history, I largely benefitted from the work of the legal scholar James Atleson, who demonstrated some thirty years ago that after the New Deal, the Supreme Court vitiated the democratizing potential of the right to organize created by the Wagner Act by upholding an implicit set of nineteenth-century “values and assumptions” about business prerogatives, including “loyalty” and “management rights.”11 In a way, this book is a political historian’s follow-up on Atleson’s analysis of business hegemony, which was more narrowly focused on the law. However, I depart from Atleson’s rich exposition on one important count. Atleson believed that in the post–New Deal era, legal conservatism had thwarted the very real possibility of workers’ control in the United States. I do not share this view. There is scant evidence that a majority of workers really wanted and sought this kind of control— rather, most wanted to gain a freedom from arbitrary treatment, and a voice in the company choices and decisions that affected both their working and living conditions.12 As I argue in this book, the alternative that existed to the conservative definition of the worker was the progressive language of social harmony that undergirded the labor expertise of NLRB members for several decades, one that implied not a working-class takeover of the plants, but rather a robust individual right to organize accruing to all workers regardless of their role in the hierarchy and organization of a company.
To justify their restricting the labor perimeter under the Wagner Act, from the 1940s onward businessmen insisted continuously on the essential difference between “labor” and “management” and stressed the adversarial character of their relations. This is surprising, and can seem even paradoxical, for the unity of workers and employers has long been a staple of social discourse in the United States. Indeed, in 1949, a mere twelve months after businessmen had convinced members of Congress to prevent the unionization of foremen by adopting a law forcing their participation in managerial culture, Philip Murray, the head of the Congress of Industrial Organizations, proved his American mettle by insisting, “We have no classes in this country. That’s why the Marxist theory of the class struggle has gained so few adherents. We’re all workers here. And in the final analysis, the interests of farmers, factory hands, business and professional people and white collar workers prove to be the same.”13
While Murray’s statement should be placed in proper context—it was no doubt a response to the conservative turn in American politics in the late 1940s—it echoed many other declarations by nineteenth-century liberal pundits such as William Graham Sumner. Rooted in the nation’s egalitarianism, and reinforced by the lack of a class-based political system, the axiom of social harmony has often stymied rhetorical and political appeals to class. “You can’t talk about social classes in America,” the New Dealer Herman Oliphant remarked in a private letter to French finance minister Vincent Auriol in 1936. Even with Popular Front politics at high tide, the Roosevelt administration refused to publicly couch its support for a devaluation of the franc in terms suggesting that this would enhance the standard of living of “all social classes.”14
It is tempting to dismiss this talk about social harmony as empty rhetoric. Indeed, three generations of labor historians have taught us to lay both American exceptionalism and the midcentury notion of political consensus to rest. While linguistic, ethnic, and religious fault lines prevented the formation of a coherent working class projecting a distinct political identity in America, there is no doubt that a majority of workers never accepted the unity between “employer and employee” that supposedly characterized labor relations in America from the Gilded Age onward. Rather, from the 1877 railroad strike to the Lordstown Strike in 1972, strikes and conflict were the drumbeat of American social history.15
This mythologizing notwithstanding, it remains possible and useful to historicize social harmony as an ideology and, in fact, a contested ideal.16 This book argues that during the Progressive Era, labor reformers—mostly middle-class men and women—minted their own version of the nineteenth-century conservative discourse of social harmony and used it to create and defend a via media between the traditional liberal state and socialism. The dominant figure in this effort was John R. Commons, whose sociology of labor relations offered a new vision of social harmony based on an extension of the democratic principle into the workplace. Speaking the language of the emerging social sciences, Commons argued that harmony was a social product; that is, by fostering collective bargaining, it was possible to instill faith in cooperation in the minds of workers and so deflect class antagonism. Commons and his students did not simply play an active role in the shaping of the New Deal; they also bequeathed later generations of labor economists a language on which they could draw to protect the right to organize beyond the blue-collar world to which businessmen continuously tried to limit it. After the New Deal, this language of harmony was the main alternative to the doctrine of loyalty in the contested struggle over the legal definition of the worker.
In showing this Progressivism at work over the course of the twentieth century, this book challenges the traditional vision of labor expertise. According to historians such as Nelson Lichtenstein and Christopher Tomlins, John R. Commons and the scholars who later worked in the theoretical framework he had established in Wisconsin—industrial pluralism—mostly conceived of collective bargaining as a way to defeat labor strife and defuse workers’ militancy.17 While I do not disagree with this analysis, in this book I seek to shed light on what I call “the other side of industrial pluralism.” Indeed, the industrial pluralists who staffed the National Labor Relations Board from the 1930s to the 1970s always sought to expand the definition of “worker” under the Wagner Act, even if it meant cutting against the grain of the business vision of the workplace and the social groups of which the Fordist system of production was composed. Indeed, I argue that it was precisely their moderate language of social harmony—one that hearkened back to the beginnings of Commons’s sociology in the early twentieth century—that allowed them to countenance the idea that foremen or white-collar professionals with managerial duties should be classified as “employees” and allowed to bargain collectively.
By contrast, businessmen rejected this language of social harmony after the 1940s, when their cultural domination seemed at risk, insisting instead that the concept of worker loyalty should prevail over the right to organize. This book thus presents a different picture of the ideal of social harmony and classlessness in America. In the nineteenth century, liberal pundits and businessmen were united in their defense of the traditional harmony of the workplace, but in the twentieth century, it was middle-class progressives who defended this ideal, while businessmen and top managers now insisted that labor relations were inherently adversarial and that the relations between the two groups should be kept in proper balance.
Moreover, I emphasize that these labor experts who defended harmony through an expansive workplace democracy wore an empty suit: their authority was acknowledged only to the extent that a large number of political actors subscribed to their views. In fact, this was never the case, and from the late 1930s to the late 1990s, the National Labor Relations Board’s efforts to expand the sociological realm of collective bargaining were recurrently stymied by an odd alliance of conservative and liberal voices. Businessmen prevailed in the struggle over the definition of employee because liberals, progressives, and unionists themselves were unable to agree on who should count as a worker under the Wagner Act. A product of the progressive search for order, their vision of workplace democracy was incomplete. Lacking a clear class-based or rights-based discourse when it came to unionism, liberals never united on a response that could be offered to the business claim to a “right to manage.” In highlighting these labor experts’ unsuccessful efforts, I shed light on a lost cause of the past, one that, in the words of critic Paul Goodman, “haunts us in the present as unfinished business.”18
The reader might note that race and gender do not figure prominently in this book. This is not for lack of interest. As I argue, during the 1930s African Americans were among the first contestants of the meaning of “worker” in the implementation of the National Labor Relations Act. That said, the thrust of this book is that in the United States the freedom to join unions and bargain collectively—an essential attribute of democracy—will never be secure as long as it is not enjoyed by all workers across the “collar” lines. To the important point that there can be no sustainable democracy at work if race and gender remain fault lines separating employees, I wish to add a complementary one: as long as the right to organize and bargain collectively is conceded to only specific groups of workers as an exception to the American grain of individualism and corporate values, associational freedom will be in danger. To return to the Kentucky River cases, many of the nurses who lost their bargaining rights as a result of those decisions were women or African Americans, but they lost these democratic rights because embedded in today’s labor law is a prejudice against collective action and unionism that has resulted in a collective bargaining right that is granted to some workers while others are required to be “loyal” to their company. As this book argues, there is nothing natural or inevitable to the idea that the right to organize is incompatible with the faithful performance of duty when the job of a worker involves more than mindless routine. Rather, this idea is the product of business anxiety in the face of the democratization of the workplace. This book tells the history of this conservative response, and by showing the paths not taken, it suggests possibilities for a different future.
What follows is a narrative that traces the impact of the ideologies of harmony and loyalty on the definition of the worker and workplace democracy in chronological order. The first part of the book, “The Struggle for Harmony,” offers a political genealogy of the Wagner Act. It shows how opposition to class antagonism shaped elite conceptions of labor relations in the late nineteenth and early twentieth centuries and informed the democratization of the workplace. I begin by reviewing the nineteenth-century origins of the ideal of social harmony by looking at the emergence of the term “employee” in American usage. By the end of the nineteenth century, the term was used commonly by Americans, and yet its social and legal meaning remained uncertain, particularly for judges who struggled with its definition in the interpretation of lien laws and needed to differentiate more clearly between those who stood “inside” and “outside” modern corporations. Indeed, it was the rise of economic liberalism and the eclipse of republican fears of wage slavery and hirelings that had driven the adoption of “employé” in the American language, for this term was well suited to express faith in the unity between “employer and employee.”
By the late nineteenth century, this classic, liberal vision was increasingly frayed. But faith in social harmony endured. The Progressive struggle against class antagonism shaped the transformation of the legal definition of the worker in a way that allowed reformers to carve exceptions to the liberal and common-law notion of the employer and employee as juridical equals. Labor progressives shaped the Wagner Act as a law that made it possible to protect the freedom of association of some workers while denying it to others, and by the 1930s, labor reformers had come to believe that collective bargaining would pave the way to social peace and cooperation between employers and workers. Importantly, these reformers conceived of labor relations as involving two social entities, namely, “management” and “employees,” thus reinforcing the notion that not all workers should be allowed to join unions.
The second half of the book, “The Battle for Loyalty,” shows how the Progressive search for social harmony through collective bargaining was stymied by businessmen who successfully invoked the need for loyalty to secure the exclusion of an ever greater number of workers from the purview of the law. By chronicling the history of foremen’s unionism in the late 1930s and 1940s, we see that foremen did not necessarily want to make common cause with rank-and-file unions. In fact, as the movement developed, it increasingly defined itself as a third group between “labor” and “management.” Sill, foremen argued that they were “employees,” and they demanded the same kind of economic citizenship and protection that the law now afforded unionized production workers.
Businessmen, however, perceived this movement as a threat hanging over both their authority in the workplace and their cultural domination. Industrial pluralists, including labor experts, judges, and policy makers, reinterpreted the main tenets of the science of labor relations pioneered by Commons to support the claim that foremen were indeed “employees.” Combined with the pressure of foremen on the factory floor, the NLRB’s decisions opened the door to a broad sociological transmutation of labor relations, one that would have wrested the legal definition of the worker away from its manual roots. While this transmutation took place in a country like France, in the United States it did not come to pass. Instead, the pressure exerted by corporate America and the lack of support that rank-and-file unions—particularly the United Auto Workers (UAW)—afforded the foremen’s struggle closed the door on this possibility, allowing businessmen to secure the recognition of the need for managerial loyalty in the Taft-Hartley Act.
By the 1960s, white-collar workers loomed large on the horizon of American unions, whose leaders were worried at the declining numbers of blue-collar factory jobs in the United States. Yet when unions such as the UAW became committed to expanding their reach across the collar line, they found that the legal definition of the worker to which they had lent their unfortunate support in the context of the foremen’s movement was a serious obstacle to their organizing plans. In the 1960s and early 1970s, the “new frontier NLRB” tried once again to expand the legal definition of the worker, this time challenging head-on the notion that managers should not be allowed to organize. Even with the support of CIO unions, however, once again the democratic efforts of the NLRB came to nothing. In Bell Aerospace v. NLRB, a case involving procurement buyers employed by the Bell Aerospace company, a coalition of liberal and conservative judges chastised the board for its new definition of the worker, suggesting that, far from being a liberty essential to citizenship, the protection of freedom of association was only part of a progressive search for order that might well leave many workers with no freedom to associate.
By the 1980s, it was becoming clear that the large numbers of knowledge workers on whom the American economy increasingly relied would find themselves at the center of the conservative struggle against unions and the Wagner Act. It was in the health care industry—the theater of one of the few union successes in the last two decades of the twentieth century—that the conservative battle for loyalty was taken to a new level, leading to the current controversy over the Kentucky River decisions. The rise of nurse unions precipitated a fresh battle over the legal definition of worker because such unions cut against the grain of the cost-cutting politics of managed care. Nurses, it would seem, are a far cry from the midcentury foreman and have few if any of the indicia of industrial managers and supervisors. Yet hospital managements were able to secure the help of conservative judges, who used the interpretive methodology of “textualism” to argue that many nurses fall in the managerial category. By 2006, as progressives lamented the Kentucky River decisions, the legal definition of the worker had lost much of its social relevance—it was a morbid symptom of a dying order.