Notes

Introduction

1. The phrase “Kentucky River cases” is commonly used to refer to three National Labor Relations Board (NLRB) decisions (Oakwood Healthcare Inc., 348 NLRB no. 37, Golden Crest Healthcare Center, 348 NLRB no. 39, and Croft Metals, Inc., 348 NLRB no. 38) handed down on September 29, 2006, in response to the Supreme Court ruling in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001). Oakwood—the main case—bore upon the UAW’s organizing drive at a hospital in Detroit, where over 180 nurses took turns in “taking charge”—assigning patients to one another and monitoring the patients. For a greater description of the charge nurse system, see Chapter 7 of this study.

2. Nancy Pelosi, “NLRB Rulings Are a Ruthless Attack on American Workers” (press release, October 5, 2006). On the social protests generated by the NLRB decision, see James Parks, “Workers Have Had Enough,” AFL-CIO NOW blog, July 14, 2006.

3. Cheryl Johnson is quoted in James Parks, “NLRB Decision Affecting Eight Million Workers Could Happen Any Day,” AFL-CIO NOW blog, September 25, 2006.

4. “Supervisor in Name Only: Union Rights of Eight Million Workers at Stake in Labor Ruling” (EPI issue brief 225), http://www.epi.org/publication/ib225/. The complaint filed with the ILO is available on the AFL-CIO website, http://www.aflcio.org. The Freedom of Association and Right to Organise, convention 87 of the ILO, stipulates that “workers without distinctions whatsoever” shall have the right to join a union. In fact, however, the United States has never ratified convention 87, which was adopted in 1948, nor the Right to Organize and Collective Bargaining Convention 98, which was adopted in 1949. For the U.S. government’s response and the ILO’s recommendations, see case 2524, “Complaint Against the Government of the United States Presented by the American Federation of Labor and the Congress of Industrial Relations,” in 349th Report of the Committee on Freedom of Association (New York: International Labour Organization, March 2008), 794–858.

5. Today workers classified as “supervisors” and “managers” compose the largest group of workers excluded from the protection of the law, that is, some thirteen million workers. Yet the number of professionals who might fall within the purview of the supervisory exception is probably well over 20 percent of the workforce; see Charles Hecksher, The New Unionism (Ithaca: Cornell University Press, 1994), 68–69. There is of course a large amount of literature covering the history of industrial democracy, but this historiography has largely ignored the question of the definition of workers. Sociologists have recently noted the importance of this question; see the special issue “Constructing Workers: Working Class Formation Under Neoliberalism,” Qualitative Sociology30, no. 4 (2007).

6. On the history of the master and servant doctrine, see Robert Steinfeld, The Invention of Free Labor: The Employment Relation in English and American Law and Culture, 1350–1870 (Chapel Hill: University of North Carolina Press, 1991); and Christopher Tomlins, Law, Labor and Ideology in the Early American Republic (New York: Cambridge University Press, 1993).

7. In thinking about conservatism, I benefitted from Corey Robin’s The Reactionary Mind: Conservatism from Edmund Burke to Sarah Palin (New York: Oxford University Press, 2011). Unlike recent authors on the topic, Robin believes not only that conservative ideas can be traced back to the eighteenth century, but also that conservatism is first and foremost an opposition to the democratization of social structures. As reviewers have noted, Robin’s analysis of the conservative response to the democratic impulse leaves many questions unsolved, but it is useful nonetheless.

8. On the need to reframe twentieth-century political history as the history of democracy rather than liberalism, see James Klopenberg, “From Hartz to Tocqueville: Shifting the Focus from Liberalism to Democracy in America,” in The Democratic Experiment: New Directions in American Political History, ed. Meg Jacobs, William J. Novak, and Julian Zelizer (Princeton: Princeton University Press, 2003), 350–400.

9. See Alfred T. Chandler, The Visible Hand (Cambridge, Mass.: Harvard University Press, 1977).

10. The phrase “moments of madness” and the sentence that follows it are taken from Aristide Zolberg, “Moments of Madness,” Politics and Society2 (1972): 83–207.

11. James Atleson, Values and Assumptions in American Labor Law (Amherst: University of Massachusetts Press, 1983). See also his “Confronting Judicial Values: Rewriting the Law of Work in a Common Law System,” Buffalo Law Review 45 (1997): 435–456.

12. For work laying out this perspective in detail, see David Brody’s classic essay, “Workplace Contractualism,” in Industrial Democracy in America: The Ambiguous Promise, ed. Howell Harris and Nelson Lichtenstein (New York: Cambridge University Press, 1993); Jack Metzgar, Striking Steel: Solidarity Remembered (Philadelphia: Temple University Press, 2000); Daniel J. Clark, Like Night and Day (Chapel Hill: University of North Carolina Press, 1997); and Nelson Lichtenstein, State of the Union (Princeton: Princeton University Press, 2002), chap. 1.

13. Quoted in Margo Anderson, “The Language of Class in 20th Century America,” Social Science History 13, no. 4 (Winter 1988): 349–375, 349.

14. See Joël Colton, Léon Blum: Humanist in Politics (New York: Knopf, 1966), 186; and John Morton Blum, From the Morgenthau Diaries (Boston: Houghton Mifflin, 1959), 163.

15. For the classical statement on American exceptionalism, see Werner Sombart, Why Is There No Socialism in America? (1907; repr., White Plains, N.Y.: M.E. Sharpe, 1976). For a more recent attempt to tackle this question, see Jean Heffer, ed., Pourquoi n’y a-t-il pas de socialisme aux Etats-Unis? (Paris: EHESS, 1984). On the “new Labor history,” see David Brody, “The Old Labor History and the New: In Search of an American Working Class,” Labor History 20 (Winter 1979): 11–26. On the railroad strikes of 1877, see David Stowell, The Great Strikes of 1877 (Urbana: University of Illinois Press, 2008). On the Lordstown Strike, see Jefferson Cowie, Stayin’ Alive: The 1970s and the Last Days of the Working Class (New York: New Press, 2011).

16. In conceiving of this investigation on the language of harmony, I largely benefited from Martin J. Burke’s wonderful The Conundrum of Class: Public Discourse on the Social Order in America (Chicago: University of Chicago Press, 1995). See also Wendy Wall, Inventing the American Way: The Politics of Consensus from the New Deal to the Civil Rights Movement (New York: Oxford University Press, 2008); and Olivier Zunz, The American Century (Chicago: University of Chicago Press, 1998).

17. Lichtenstein, State of the Union, 35–36, 148–156; and Christopher Tomlins, The State and the Unions (New York: Cambridge University Press, 1986). A student of Gabriel Kolko, Tomlins suggested that the Wagner Act was yet another element in an organizational synthesis that created the institutions necessary to make modern capitalism manageable. But the constant intervention of the government in labor disputes and its constant emphasis on bargaining was an unmitigated bane on the labor movement, one had drew the sap out of it and deprived it of the means to defend itself against conservative backlash. I deal with this historiography at greater length in the introduction to Chapter 5 of this study.

18. Paul Goodman, Growing Up Absurd (New York: Vintage, 1962), quoted in Kevin Mattson, Intellectuals in Action: The Origins of the New Left and Radical Liberalism (University Park: Pennsylvania State University Press, 2003), 1.

Chapter 1. The “Employé”

1. Richard McMurtrie, “The Legal Rights and Duties of Employers and Employed, as Affecting the Interests of the Public,” American Law Register and Review 41, no. 5 (May 1893): 421–437, esp. 421–423.

2. Vane v. Newcombe, 132 U.S. 220 (1889), 221.

3. On the composition of the American workforce at the end of the nineteenth century, see David Montgomery, The Fall of the House of Labor (New York: Cambridge University Press, 1987), chaps. 1–3.

4. Vane v. Newcombe, 220–227.

5. Henry Farnam and Clive Day, Chapters in the History of Social Legislation in the United States to 1860 (New York: Lawbook Exchange, 2000), 152, passim. The Populist Platform was particularly successful in Ohio, where, according to an observer, one could “get a taste of that which Populism, in all its vagaries, never dared to dream.” See C. L. Martzolff, “Recent Ohio Legislation Confirming to the Constitution,” American Political Science Review 7, no. 4 (November 1913): 639–647, 639. A lien section was included in the constitution adopted in Ohio in 1912. See C. L. Martzolff, “Ohio: Changes in the Constitution,” American Political Science Review 6, no. 4 (November 1912): 573–576. In an article dealing with Progressivism in the South, however, Arthur Link noted that in Texas as early as 1892, the Populist Platform included a mechanics’ lien law, along with an eight-hour day. See Arthur Link, “The Progressive Movement in the South, 1870–1914,” in Myth and Southern History, vol. 2, ed. Nicholas Cords and Partrick Gerster (Urbana: University of Illinois Press, 1989), 64.

6. Vane v. Newcombe, 223.

7. Vane v. Newcombe, 227–229.

8. Water Company v. Ware, 16 Wallace 566 (1872). The company, which was to lay water pipes in the city of St. Paul, had agreed to “be responsible for all damages which may occur by reason of the neglect of their employés on the premises,” and so was held responsible for the injuries sustained by one Ware, whose horse had been frightened by a blast as he rode down a street where excavation work was done by a subcontractor of the company.

9. Gurney v. Atlantic & Great Western Railroad, 58 N.Y. 358 (1874). By contrast, in Wakefield v. Fargo, 90 N.Y. 213 (1882), it was held that a statute making stockholders of a corporation “liable for all debts that may be due and owing to their laborers, servants, and apprentices for services performed for such corporation” did not include a bookkeeper or a general manager. Commenting on this case in Vane v. Newcombe, the Court explained, “The view taken by the court was that the services referred to were menial or manual services; that he who performed them must be of a class who usually looked to the reward of a day’s labor or service for immediate or present support … one who was responsible for no independent action, but who did a day’s work or a stated job under the direction of a Superior.” Vane v. Newcombe, 236.

10. Ritter v. State, 111 Ind. 324 (1887), 502; State v. Sarlls, 135 Ind. 195 (1893), 1130.

11. I make this point in qualification of the argument presented by Tomlins in Law, Labor and Ideology, 217–292, 219. Tomlins refers to the law treatise written by one Walker in 1837, in which the author argues, “We understand by relations of master and servant, nothing, more or less, than that of employer and employed.

12. James Schouler, A Treatise on the Law of Domestic Relations (1895), 3, 744; Irving Browne, Elements of the Law of Domestic Relations and Employer and Employed (1890), 123–124, quoted in Mary Ann Glendon and Edward L. Rev, “Changes in the Bonding of the Employment Relationship,” Boston College Law Review 20, no. 3 (1979): 457.

13. The miners’ law was adopted in 1879 and the mechanics’ lien law in 1881; see Vane v. Newcombe, majority opinion, 234–235.

14. Vane v. Newcombe, 233–235.

15. Jay Feinman, “The Development of the At-Will Rule,” American Journal of Legal History 20, no. 2 (1976): 118.

16. Louisville, Evansville and St Louis Railroad Co v. Wilson, 138 U.S. 501 (1891), 501–503, 506–507. On the highly competitive context of the railroad industry, see Chandler’s classic text, Visible Hand, 122–144.

17. On the history of the Supreme Court and the judiciary at the time, see Alpheus T. Mason, The Supreme Court from Taft to Burger (Baton Rouge: Louisiana State University Press, 1979), 22–27. Louisville v. Wilson, 505.

18. Finance Co. of Pennsylvania, et al. v. Charleston C. & C.R. Co. et al., 52 Fed. 527 (1892).

19. Black’s Law Dictionary, 2nd ed. (1910), s.v. “employé.”

20. The literature on this question is huge. For my understanding of this period, I have relied on Harry L. Watson, Liberty and Power (New York: Hill and Wang, 1990); Richard Stott, “Artisans and Capitalist Development,” Journal of the Early Republic 16, no. 2 (Summer 1996): 257–271; Bruce Laurie, Working People of Philadelphia (Philadelphia: Temple University Press, 1980); Sean Wilentz, Chants Democratic (New York: Oxford University Press, 1984); Alan Dawley, Class and Community in Lynn (Cambridge, Mass.: Harvard University Press, 1976); Philip Foner, History of the Labor Movement in the United States, vol. 1 (1947; repr., New York: International Publishers, 1975); Eric Foner, The Story of American Freedom (New York: Norton, 1998).

21. Webster’s Dictionary (Springfield, Mass.: H.S. Taylor’s Steam Power Press, 1849), S.V. “employ.”

22. Eleventh Census of the Population, 1890, vol. 6 (Washington, D.C.: GPO, 1895), 13. Note that the report actually provided two different numbers for the year 1890 because of a changing methodology.

23. On white-collar workers, see Olivier Zunz, Making America Corporate (Chicago: University of Chicago Press, 1990). On tramping, see Alex Keyssar, Out of Work: The First Century of Unemployment in Massachusetts (New York: Cambridge University Press, 1986); and E. H. Monkonnen, ed., Walking to Work: Tramps in America, 1790–1920 (Lincoln: University of Nebraska Press, 1984). See also David Montgomery, “The Common Laborer,” in The Fall of the House of Labor (New York: Cambridge University Press, 1989).

24. See Stuart Blumin, The Emergence of the Middle Class: Social Experience in the American City, 1760–1900 (New York: Cambridge University Press, 1989).

25. Centennial Dictionary (1890), s.v. “employé.”

26. Ibid., s.v. “employ.”

27. Vane v. Newcombe, “Argument for Appellant,” 231.

28. Louis Guyot, another advocate of liberalism, suggested getting rid of the term “patron,” which, according to him, “implied the superiority of the one who pays for work over the one who performs it, which is a remnant from a feudal psychology”; see Jacques Le Goff, Du silence à la parole (Rennes: Presses Universitaires de Rennes, 1994), 78. This is why liberals with a social bent such as Paul Leroy Beaulieu, who did not divorce capitalism from social ethics, lamented the rise of the term.

29. This anecdote was actually first told by Daniel Defoe. See E. P. Thompson, Customs in Common: Studies in Popular Traditional Culture (New York: New Press, 1991), 84; and Christopher Tomlins, “Subordination, Authority, Law: Subjects in Labor History,” International Labor and Working Class History 47 (Spring 1995): 56–90. Tomlins takes issue with E. P. Thompson, who argued that the master and servant model of discipline had disappeared for good, but had been replaced by factory discipline. Tomlins argues that starting with the Woolen Manufactures Act of 1725, Parliament adopted a series of laws restoring the duty of service.

30. Tomlins, “Subordination, Authority, Law,” 75.

31. In England, the Master and Servant Law was abolished by the Conspiracy and Protection of Property Act of 1875. By then, an increasing number of people believed the criminal sanctions that the Master and Servant Law provided against recalcitrant workers were unfair, since it was nearly impossible for servants to enforce any of the civil penalties the law allowed for masters who did not fulfill their responsibilities. See Wanjiru Noya, Property in Work: The Anglo-American Employment Relationship (Burlington, Vt.: Ashgate, 1988), 27–28. This paragraph largely relies on Simon Deakin, “The Contract of Employment: A Study in Legal Evolution” (University of Cambridge Working Paper No. 203, ESRC Centre for Business Research), http://www.cbr.cam.ac.uk/pdf/WP203.pdf; and Simon Deakin and Frank Wilkinson, The Law of the Labour Market: Industrialization, Employment and Legal Evolution (Oxford: Oxford University Press, 2005), 61–74, 86–100. On the evolution of the franchise in England, see John Cannon, Parliamentary Reform (Cambridge: Cambridge University Press, 1980); and Michael G. Brock, The Great Reform Act (London: Hutchinson, 1973).

32. Steinfeld, Invention of Free Labor.

33. Philadelphia Ledger, February 2, 1849, quoted in John R. Commons et al., History of Labor in the United States (New York: Macmillan, 1918), vol. 1, 603.

34. Quoted in Steinfeld, Invention of Free Labor, 15.

35. “Employee Not Employe,” New York Times, September 30, 1894.

36. Karl Marx, Capital: A Critique of Political Economy, vol. 1, trans. Ben Fowkes (New York: Vintage, 1977), 280.

37. Henry C. Carey, Principles of Social Science, vol. 3 (Philadelphia: J.B. Lippincott, 1858), 102; Rodney Morrison, “Henry Charles Carey and American Economic Development,” Transactions of the American Philosophical Society 76 (1986): 24. Michael Perelman, “Political Economy and the Press: Karl Marx and Henry C. Carey at the New York Tribune,” in Marx’s Crises Theory (New York: Praeger, 1989), 10–26.

38. Richard Grant White, “Social Distinctions in America,” North American Review 137, no. 322 (September 1883): 231–247, 233. On the use of the phrase “distinction of employments,” see Burke, Conundrum of Class, 188–119. I have greatly benefited from Burke’s analysis, on which this paragraph relies heavily.

39. This point is made at great length by William Forbath, “The Ambiguities of Free Labor: Labor and the Law in the Gilded Age,” Wisconsin Law Review (July 1985): 767–814; and by Eric Foner, “The Meaning of Freedom in an Age of Emancipation,” Journal of American History 81, no. 2 (September 1994): 435–460. I am indebted to both of them for my understanding of the history of free labor in America, particularly the two strands of it after the Civil War.

40. Schouler, Treatise on the Law of Domestic Relations, 7 (in introduction). It is actually quite difficult to tell at what point in the nineteenth century the terms “master” and “servant” fell into disrepute. John Bristed, an American lawyer, argued as early as 1818 that “there is no such thing as master and servant in this country … indeed, the name is not permitted.” “Servitude, strictly so called, does not exist in this country,” the legal scholar Thomas Walker wrote in 1837. “We understand by the relation of master and servant nothing, more or less, than that of the employer and the employed.” See Christopher Tomlins, “The Ties That Bind: Master and Servant in Massachusetts, 1800–1850,” Labor History 30, no. 2 (1989): 193–227, 216.

41. On the emergence of the word “help” as opposed to “servant,” see David Rodiger, The Wages of Whiteness (New York: Verso, 1999); and Albert Matthews, “The Terms Hired Man and Help,” in Publications of the Colonial Society of Massachusetts, vol. 5 (Cambridge, Mass.: John Wilson, 1900), 225–254.

42. On the “entire contract” rule, see Karen Orren, Belated Feudalism (New York: Cambridge University Press, 1992), 84–85.

43. Tomlins, “Ties That Bind” and Law, Labor and Ideology, 259–293; as well as Orren, Belated Feudalism; and the response offered by David Montgomery in Citizen Worker (New York: Cambridge University Press, 1994). Montgomery argues that claims that a “feudal” system of labor relations still obtained in the nineteenth century are overwrought and ignore the significant differences between the rights of American workers and those of their European counterparts, for example, Belgian workers still required to carry a livret. On judicial opposition to labor unions, see Victoria Hattam, Labor Visions and State Power (Princeton: Princeton University Press, 1993), who focuses on charges of conspiracy as the main device against unions in the 1870s and 1880s; William Forbath, Law and the Shaping of the American Labor Movement (Cambridge, Mass.: Harvard University Press, 1991), who sees judicial opposition at its apex in the 1890s to 1920s, when the courts used the Sherman antitrust act against unions. Both, however, contend that this judicial hostility produced the voluntarism that characterized the AFL.

44. Orren, Belated Feudalism, 183–184; and Theresa Ann Case, The Great Southwest Railroad Strike and Free Labor (College Station: Texas A&M University Press, 2010), 106. The absence of unions notwithstanding, in fact the question of loyalty continued to nag employers, pushing them to experiment with a host of strategies that went from creating industrial villages such as Pullman town in the 1890s to establishing progressive welfare capitalist practices in the 1920s.

45. The notion that Gilded Age judges actually relied on a political tradition of free labor and equal rights that hearkened back to Jacksonian and even Jeffersonian America is a staple of the revisionist account of “Lochnerian jurisprudence” and its origins. Alan Jones, for example has shown that the defense of the right of property put forward by Cooley in his Treatise on Constitutional Limitations was imbued with a large amount of nostalgia for a Jeffersonian, preindustrial world. See Alan Jones, “Thomas M. Cooley and Laissez-Faire Constitutionalism: A Reconsideration,” Journal of American History 53 (1967): 751–771; as well as Charles McCurdy, “Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism,” Journal of American History 61 (1975): 970–1005; and Howard Gillman, The Constitution Besieged: The Rise & Demise of Lochner Era Police Powers Jurisprudence (Durham, N.C.: Duke University Press, 1992), 19–75. In an important article, however, William Forbath has shown that the meaning of the free labor tradition was profoundly contested in the post–Civil War era. One vision of free labor, stemming both from the language of abolitionism and the Jacksonian fear of monopolies, emphasized the right to sell one’s labor free from governmental constraints. By contrast, labor leaders fretted about the social consequences of this freedom, which they deemed to be incompatible with republican principles of dignity and independence. As a result, although it was derived from the same principles, the labor critique of capitalism was at odds with the liberal doctrine of the judges. See Forbath, “Ambiguities of Free Labor.” As the last section of this chapter suggests, I am in full agreement with this argument.

46. Scranton Times, December 31, 1873, quoted in Herbert Gutman, “Trouble on the Railroads, 1873–1874: Prelude to the 1877 Crisis?” Labor History 2 (1961): 253.

47. Quoted in Melvyn Dubofsky, The State and Labor in Modern America (Chapel Hill: University of North Carolina Press, 1994), 18.

48. Jordan v. State, quoted in Marc Linder, The Employment Relationship in Anglo-American Law (Westport, Conn.: Greenwood, 1989), 121.

49. This paragraph relies on the wonderful analysis offered by Burke, Conundrum of Class, 153.

50. William Graham Sumner, What Social Classes Owe Each Other (1883; repr., Los Angeles: Pamphleteers, 2008), 71–76.

51. George McNeill, The Labor Movement: The Problem of Today (1887; repr., New York: Kelley, 1971), 480.

52. Ibid., iv.

53. For the Knights of Labor, I have relied on Leon Fink, Workingmen’s Democracy, The Knights of Labor and American Politics (Urbana: University of Illinois Press, 1984); and Richard Schneirov, Labor and Urban Politics: Class Conflict and the Origins of Modern Liberalism in Chicago, 1867–1897 (Urbana: University of Illinois Press, 1998).

54. Henry George, Progress and Poverty (San Francisco: Hinton, 1879).

55. McNeill, Labor Movement, 484.

56. Ibid., 479.

57. On the 1896 election, see Michael Kazin’s biography of William Jennings Bryan, A Godly Hero (New York: Knopf, 2006), in which he argues that while Bryan lost, he remade the Democratic Party into a party of social reform.

Chapter 2. Struggling Against Class

1. Bureau of Labor Statistics of Illinois, “The Sweating System in Chicago,” in Seventh Biennial Report (Springfield, Ill.: H. K. Rokker 1893), 361; “Florence Kelley’s Testimony on the Sweating System,” in Report and Findings of the Joint Committee to Investigate the “Sweat Shop” System (Springfield, Ill.: H. K. Rokker, 1893), 135.

2. Robert Hunter, Poverty: Social Conscience in the Progressive Era, ed. Peter d’A. Jones (1901; repr., New York: Harper, 1965). Noted Hunter, “I am reminded now of a vagrant whom I knew well and for many years believed to be sincerely trying to become ‘a man,” as we used to say. He has turned up wherever I have happened to be—in Chicago or New York. He has always looked me up, and together we have conspired to overcome his vagrant instincts. We have always failed, and after a few weeks’ work Jerry disappears, and I know what has become of him. At last, in his case as in many others, I have become convinced that he is more satisfied and content with the life of a vagrant than with the miserable lot of an unskilled, underpaid workman.” On nineteenth-century repression of vagrancy, see Amy Dru Stanley, “Beggars Can’t Be Choosers,” Journal of American History 78, no. 4 (March 1992): 1265–1293.

3. See Jennifer Klein, For All These Rights: Business, Labor and the Shaping of the America’s Public-Private Welfare State (Princeton: Princeton University Press, 2003); Meg Jacobs, Pocketbook Politics (Princeton: Princeton University Press, 2005); Foner, Story of American Freedom, 139–219.

4. Florence Kelley, as quoted in Michael Kazin, American Dreamers: How the Left Changed a Nation (New York: Knopf, 2012), 68.

5. The argument that I make in the following lines is also made much more fully by Shelton Stromquist in Reinventing the People: The Progressive Movement, the Class Problem, and the Origins of Modern Liberalism (Urbana: University of Illinois Press, 2006).

6. Jane Addams, “Trade Unions and Public Duty,” American Journal of Sociology 4, no. 4 (January 1899): 448–462, 448. Addams also quoted Comte, who famously interpreted the French Revolution as the product of a social breakdown.

7. Ibid., 461; and Jane Addams, “The Settlement as a Factor in the Labor Movement,” in Hull House Maps and Papers: A Presentation of Nationalities and Wages in a Congested District of Chicago, Together with Comments and Essays on Problems Growing Out of Social Conditions (New York: Thomas Crowell, 1895), 183–204.

8. Doug Rossinow, Visions of Progress: The Left-Led Tradition in America (Philadelphia: University of Pennsylvania Press, 2007), chap. 1. Note however the difference between Rossinow and Stromquist: Stromquist emphasizes more strongly the opposition of Progressives to class, while Rossinow puts more emphasis on the collaboration of the left and Progressives, which he sees as a kind of matrix for New Deal reforms. Basically Stromquist thinks that Progressives held fast to a kind of Lincolnesque ideal, while Rossinow sees them as the engine of something close to an American Fabianism.

9. On the idea of “issue politics” as applied to the Progressive Era, see Daniel Rodgers, “In Search of Progressivism,” Reviews in American History 10 (1982): 117.

10. The background information on the Lochner case is derived from Paul Kens, Lochner v. New York: Economic Regulation on Trial (Lawrence: University Press of Kansas, 1998); David E. Bernstein, “Lochner v. New York: A Centennial Perspective,” Washington University Law Quarterly 85, no. 5 (2005): 1469–1528; and Peter H. Irons, A People’s History of the Supreme Court (New York: Penguin, 1999), 254–256.

11. For the text of the law, see Kens, Lochner v. New York, Appendix B, 169–170.

12. Bernstein, “Lochner v. New York,” 1482.

13. Muller v. Oregon, 208 U.S. 412 (1908).

14. Charles R. Henderson, Industrial Insurance in the United States (Chicago: University of Chicago Press, 1909), 44, quoted in John F. Witt, “The Transformation of Work and the Law of Workplace Accidents,” Yale Law Journal 107, no. 5 (1998): 1467–1502, 1488. On factory legislation, see Daniel Nelson, Managers and Workers: The Origins of the New Factory System in the United States, 1880–1920 (Madison: University of Wisconsin Press, 1975), 122–140.

15. Léon Bourgeois, La solidarité (Paris: Armand Colin, 1896).

16. This account of solidarism relies on Le Goff, Du silence à la parole, 254–257; Judith Stone, The Search for Social Peace: Reform Legislation in France, 1890–1914 (Albany: State University of New York Press, 1985), 25–54; Janet Horne, A Social Laboratory for Modern France (Durham, N.C.: Duke University Press, 2002), 9–10, 118–120.

17. See, e.g., Célestin Bouglé, Solidarisme et Libéralisme (Paris: Rieder, 1904), 113–114.

18. Thierry Pilon and François Vatin, “Retour sur la question salariale,” Histoire et Sociétés no. 1 (1er trimestre 2002): 95–96; Le Goff, Du silence à la parole; Alain Cottereau, “Droit et bon droit,” Annales 57, no. 6 (2002): 1521–1557.

19. For the notion that in the American polity all powers are involved in a “constitutional dialogue” with the courts, I have relied on Neal Devins, Shaping Constitutional Values: Elected Government, the Supreme Court and the Abortion Debate (Baltimore: Johns Hopkins University Press, 1996). See also William Forbath, “The Long Life of Liberal America,” Law and History Review 24, no. 1 (Spring 2006): 179–192.

20. Ritchie v. People, 155 Ill. 98 (1895), “Brief for Appellant,” 19, passim. The brief clearly called on the Illinois Supreme Court to use the Fourteenth Amendment to invalidate the law and pointed, among others, to the infamous Godcharles v. Wingeman decision, in which a tribunal invalidated a law prohibiting payment in any means other than money. By “substantive,” jurists mean that the due process clause referred not simply to a process, but also to a number of specific rights, foremost among which was the right to property.

21. Ritchie v. People. On the public/private distinction, see Morton Horwitz, “The History of the Public Private Distinction,” University of Pennsylvania Law Review 130, no. 6 (June 1982): 1423–1428; and Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (New York: Oxford University Press, 1998), 47–48.

22. This doctrine was first highlighted in Justice Field’s dissent in the 1876 Slaughterhouse Cases, and by 1897 the U.S. Supreme Court had endorsed the main lines of the freedom of contract argument. See Irons, People’s History, 248–249.

23. Bernstein, “Lochner v. New York,” 1486, on whom this paragraph relies heavily; Irons, People’s History, 255.

24. Lochner v. New York, 198 U.S. 45 (1905), 54. The background information on this case is derived from Bernstein, “Lochner v. New York,” 1493–1496.

25. Otis v. Parker, 187 U.S. 606 (1903), 609. The similarities between Holmes’s opinions in Otis and Lochner are highlighted by Edward G. White, Justice Holmes: Law and the Inner Self (New York: Oxford University Press, 1995), 326–327.

26. Roscoe Pound, “Liberty of Contract,” Harvard Law Review 18, no. 7 (1909): 454–487, 454. For an additional indictment of the idea of liberty of contract, see Josephine Goldmark, Fatigue and Efficiency: A Study in Industry (New York: Russell Sage, 1912).

27. Adair v. U.S., 208 U.S. 161 (1908), 174–175; Thomas M. Cooley, A Treatise on the Limitations Which Rest upon the Legislative Power of the States of the Union (Boston: Little, Brown, 1878).

28. See Lochner v. New York, 64. For the biography of Peckham, see Irons, People’s History, 255. On David Brewer, see Mason, Supreme Court, 23–27; and Robert A. Burt, The Constitution in Conflict (Cambridge, Mass.: Harvard University Press, 1995), 245–253.

29. See, e.g., Gillman, Constitution Besieged; Howard Gillman, “Delochnerizing Lochner,” Boston Law Review 85 (2005): 859–865; and Michael J. Phillips, The Lochner Court, Myth and Reality (New York: Praeger, 2001). According to Morton Keller, the Court actually validated 93 percent of such laws between 1887 and 1901 and 76 percent between 1901 and 1910. See his Affairs of State: Public Life in Nineteenth Century America (Cambridge, Mass.: Harvard University Press, 1977), 369. Melvyn Urofsky challenged the idea that the judiciary opposed social legislation in “State Courts and Protective Legislation in the Progressive Era: A Reevaluation,” Journal of American History 72 (June 1985): 63–91. See also note 45 in Chapter 1.

30. My emphasis. Coppage v. Kansas, 236 U.S. 1, 17.

31. For my understanding of the history of the at-will rule, I have relied on Katherine van Wezel Stone, “Revisiting the At-Will Employment Doctrine: Imposed Terms, Implied Terms, and the Normative World of the Workplace,” Industrial Law Journal 36, no. 1 (March 2007): 84–101.

32. John Marshall Harlan, dissenting opinion, Lochner v. New York, 69–72. This became standard practice for Supreme Court justices. See for example the majority opinion in Bunting v. Oregon, 243 U.S. 426 (1917).

33. In his History of American Law, 2nd ed. (New York: Simon & Schuster, 1985), Lawrence M. Friedman noted that the case stood “perilously close to the legal frontier,” 563. Yet, the case may have been an expression of what William Novak has called a “well regulated society,” in The People’s Welfare: Law and Regulation in 19th Century America (Chapel Hill: University of North Carolina Press, 1996), which denies that the United States was a stateless society in the nineteenth century and argues not only that regulation was acceptable if it led to social order and the protection of the public’s welfare, but also that it was “overwhelming” enough to conclude that “private rights were subject to public objectives” (235–236). Holden v. Hardy, 169 U.S. 366, 397.

34. Chicago Burlington Quincy Railroad Co v. McGuire, 219 U.S. 549 (1911). A few months later, in Baltimore & Ohio v. ICC, 221 U.S. 612 (1911), the Court argued that Congress could regulate the working hours of railroad employees even if the regulation applied to companies that were engaged in intrastate business as well. Again, what mattered primarily to the Court was the rationale behind the regulation—it was well accepted, the judges contended, that in the railroad industry hours of labor were tightly linked to efficiency.

35. Bunting v. Oregon.

36. Miller v. Wilson, 236 U.S. 373 (1915), 382.

37. The case was Hawley v. Walker, 232 U.S. 718 (1914).

38. See James Henretta, “Charles Evans Hughes and the Strange Death of Liberal America,” Law and History Review 24, no. 1 (Spring 2006): 121. The following biographical sketch of Hughes heavily relies on Henretta’s convincing argument.

39. Ibid., 136.

40. Miller v. Wilson, 384.

41. See Robert Wiebe’s classic The Search for Order (New York: Hill and Wang), 1966.

42. On industrial democracy, see Chapter 3 of this book, as well as Joseph A. McCartin, Labor’s Great War (Chapel Hill: University of North Carolina Press, 1998); and Harris and Lichtenstein, Industrial Democracy in America.

43. Two scholars making this argument are Lizabeth Cohen, Making a New Deal (New York: Cambridge University Press, 1991); and Lichtenstein, State of the Union, 20–53.

44. The idea that the New Deal was not born of the death of orthodox liberalism in America but was rather the product of a “half century of conflict and accommodation between old liberalism and New liberalism,” with remnants of the old visible in the American welfare state is expounded on a broader scale in Forbath, “Long Life.” In “The Hughes Court and Constitutional Consultation,” Journal of Supreme Court History 23, no. 1 (1998): 79–111, Barry Cushman makes a similar argument about the laws that were validated by the Court in the late 1930s—to wit, that they were the product of a dialogue rather than a conflict and rupture. Cushman, however, mostly deals with policy areas in which the Court first struck down legislation and does not address the question of the Wagner Act.

45. Dubofsky, State and Labor, 126. Historians have often stressed the discontinuities between the Progressive Era and the New Deal. The difference was stressed very early on in Irving Bernstein’s accounts and in accounts of the CIO, such as Robert Zieger’s The CIO, 1935–1955 (Chapel Hill: University of North Carolina Press, 1994), but it figures prominently in Cohen, Making a New Deal. More recently, historians have emphasized continuities between the two periods; see especially McCartin, Labor’s Great War.

46. The history of railroad conflicts is neatly summarized in Dubofsky, State and Labor, 8–21. On the Railway Labor Act itself, see Ruth O’Brien, Workers’ Paradox: The Republican Origins of New Deal Labor Policy (Chapel Hill: University of North Carolina Press, 1998), 63–147; and Dubofsky, State and Labor, 8–101.

47. Texas & New Orleans Railway Co. v. Brotherhood of Railway & Steamship Clerks, 281 U.S. 548 (1930). See also Irving Bernstein, The Lean Years: A History of the American Worker, 1920–1933 (Boston: Houghton Mifflin, 1972), 215–220.

48. Texas & New Orleans v. Brotherhood, 556–559.

49. American Steel Foundries v. Tri City Central Trade Council, 257 U.S. 184 (1921), 209.

50. Texas & New Orleans v. Brotherhood, 570. Coppage v. Kansas, 32.

51. “Due Process and the Employment Contract,” Harvard Law Review 44, no. 8 (June 1931): 1287–1291, 1291.

52. Edward Berman, “The Supreme Court Interprets the Railway Labor Act,” American Economic Review 20 (1930): 638. Indeed, Berman rejected the possibility that the Texas decision might be compatible with the Adair or Coppage decisions and concluded instead that the Court had taken an important step forward in deciding that the social harm involved in restricting the carrier’s freedom of contract was more than offset by the social benefit secured by the law.

53. Works published by advocates of planning include Charles Beard, “A Five Year Plan for America,” Forum, July 1931; Charles Beard, ed., America Faces the Future (Boston: Houghton Mifflin, 1932); George Soule, “Hard-Boiled Radicalism,” New Republic 65 (January 1931): 261–265; and Rexford Tugwell, Industrial Discipline and the Governmental Arts (New York: Columbia University Press, 1933). The best account of the talk over planning is in Ellis Hawley, The New Deal and the Problem of Monopoly (Princeton: Princeton University Press, 1966); see also Robert Westbrook, “Tribune of the Technostructure: The Popular Economics of Stuart Chase,” American Quarterly 32, no. 4 (Autumn 1980): 387–408. For a good history of the “postcapitalist” ideal, see Howard Brick, “The Postcapitalist Vision in Twentieth Century American Social Thought,” in American Capitalism: Social Thought and Practice, ed. Nelson Lichtenstein (Philadelphia: University of Pennsylvania Press, 2006), 30–35.

54. The “urban liberalism” of Robert Wagner is analyzed in Joseph Hutmacher, Senator Robert F. Wagner and the Rise of Urban Liberalism (New York: Atheneum, 1968). For a study of the “new unionism” in the textile industry, see Steven Fraser, Labor Will Rule: Sidney Hillman and the Rise of American Labor (Ithaca: Cornell University Press, 1991). On the mine workers’ efforts to ease the transition of the mining sector from its nineteenth-century organization to a more profitable one, see David Brody, “Market Unionism in America: The Case of Coal,” in In Labor’s Cause (New York: Oxford University Press, 1993), 131–174; and C. K. McFarland, Roosevelt, Lewis, and the New Deal, 1933–1940 (Fort Worth, Tex.: Texas Christian University Press), 15–19.

55. Labor organizations marched in strides in the mining, textile, and construction industries, while militancy reached levels unseen since 1921. In 1933 alone, the AFL added 500,000 members to its existing ranks. The number of man-days lost to strikes in the second half of 1934 was four times higher than during the first half: 2.4 million as compared to 600,000. The AFL would add another 400,000 members, but its craft organization was ill fitted to the task of organizing industrial workers. As a result, many workers who would have wanted to join unions could not do so in 1933 and 1934. See Dubofsky, State and Labor, 107–136.

56. Louis Stark, “Cars and the Men,” Survey Graphic, April 1935.

57. Dubofsky, State and Labor, 77.

58. These figures come from Melvyn Dubofsky, “Not So Turbulent Years: Another Look at the 1930s,” Amerikastudien 24 (1979): 5–20. Dubofsky offers a subtle perspective, arguing that the strikes were not so overwhelming, given that 93 percent of the workers did not take part in them in 1934 or 1937. Consequently, he argues, one should differentiate between the reality of the class struggle and “[w]orkers fully aware as a class of their role.” By contrast, a new left perspective still holds that the 1930s was a time of a missed opportunity; see Staughton Lynd, ed., We Are All Leaders: The Alternative Unionism of the 1930s (Urbana: University of Illinois Press, 1996). On the textile strike and Francis Biddle’s disenchantment, see Eric Leif Davin, “The Defeat of the Labor Party Idea,” in Lynd, We Are All Leaders, 125–127.

59. Testimony of Senator Patrick J. Boland, February 20, 1935, in Legislative History of the National Labor Relations Act, 2 (Washington, D.C.: GPO, 1949), 2430; Testimony of Francis Haas, March 15, 1934, in Legislative History of the National Labor Relations Act, 1: 145.

60. Robert F. Wagner, May 15, 1935, Congressional Record, 74th Congress, 1st Session, 7565, quoted in Leon Keyserling, “Why the Wagner Act?” in The Wagner Act: After Ten Years, ed. Louis Silverberg (Washington, D.C.: BNA, 1945), 14.

61. As Francis Biddle noted, “The right to work, the freedom of contract, the tradition of the rugged individual with a door open to his future if he could but apply himself, and take what was offered—these phrases lost their reality in a world in which the labor market was choked with a fluid and floating surplus, where industry dictated the contract, and the worker took it, or starved; where the individual to make his ruggedness effective must combine and act thus in combination”; see William Green et al., Labor’s Charter of Rights (Washington, D.C.: American Federation of Labor, 1935), 49, Leon Keyserling Papers, Georgetown Library, box 1, folder 2.

62. Harry M. Millis, testimony on the bill, reprinted in Green et al., Labor’s Charter of Rights, 45; Robert Wagner, 78 Congressional Record, 3679, reprinted in Legislative History of the National Labor Relations Act, 1:20.

63. James Gray Pope, “Labor’s Constitution of Freedom,” Yale Law Journal 106 (1997): 941–1031. Pope shows that the AFL’s Andrew Furuseth argued that the protection of the right to organize should be based on the Thirteenth Amendment’s prohibition of “involuntary servitude.”

64. Wagner, testimony in Congress, reprinted in Green et al., Labor’s Charter of Rights, 9. Statement of Robert Hale on S. 2926, in Legislative History of the National Labor Relations Act, 82. Francis Biddle referred to the Texas case in his testimony on S. 2926 and H.R. 6288, see the memorandum he prepared for it, “Policy of Industrial Recovery Records of the National Labor Relations Board,” 6, Committee Management Files (CMF), Record Group (RG) 25, National Archives, box 4.

65. Statement of Francis J. Haas, Legislative History of the National Labor Relations Act, 116. Francis Biddle thus asked members of Congress to contemplate the notion that “[w]e no longer conceive of labor organizations as conspiracies, for the evil of conspiracy is the end sought, and the end sought—to improve conditions of life—does not now, in our minds, interfere with the inherited scriptural tradition to keep the poor always with us”; see his testimony reprinted in Green et al., Labor’s Charter of Rights, 49.

66. For statistics on the NLRB, see hearings on S. 2926, Legislative History of the National Labor Relations Act, 40–48. Testimony of William Green on S. 2926, 110, quoted in James Pope, “The Thirteenth Amendment versus the Commerce Clause: Labor and the Shaping of American Constitutional Law, 1921–1957,” Columbia Law Review 102, no. 1 (January 2002): 1–122, 59.

67. “Third draft,” Keyserling Papers, file 18, box 1. By 1932, Rexford Tugwell, Leon Keyserling’s economics teacher at Columbia University, urged FDR to understand that contrary to what the business sector argued, the crisis did not stem from overconsumption, but rather from “underconsumption,” that is, top industrial managers’ failure to pass on to workers a sufficient share of the proceeds of the productivity gains of the 1920s. See David M. Kennedy, Freedom from Fear (New York: Oxford University Press, 1999), 122. For the importance of what some economists called “underdemand” to the adoption of the NIRA, see Charles Dearing et al., The ABC of the NIRA (Washington, D.C.: Brookings Institution, 1934). See also Kenneth Casebeer, “Holder of the Pen: An Interview with Leon Keyserling on Drafting the Wagner Act,” University of Miami Law Review 42 (November 1987): 300–301, 313; oral interview of Leon Keyserling, May 3, 1971, 8–9, Truman Library; Keyserling, “Why the Wagner Act?” 7–12.

68. Jacobs, Pocketbook Politics.

69. John Lonsdale, “The Period of Adjustment,” American Bankers Association Journal (October 1930): 267, quoted in Maurice Leven, Harold Moulton, and Clark Warburton, America’s Capacity to Consume (Washington, D.C.: Brookings Institution, 1934), 116. The reference to the $2,500 threshold is at 119–121.

70. Interestingly, support along the same lines also came from the AFL, which no longer wanted “the earth and fullness thereof.” As William Green argued, “If the largest groups of consumers—the wage earners—make more than 66 percent of the purchases in retail markets—if they were in a position to maintain their incomes at a level that would absorb the output of industry, we would have operating a condition essential for balance in distribution and regularity in production. That condition is that workers be given industrial status that makes possible bargaining equal to their employers.” See testimony of William Green, Legislative History of the National Labor Relations Act, 98. These arguments and figures were probably most important in the effort to discredit the idea that company unions could play the role that New Dealers envisaged. As Wagner noted, in December 1934 wages were only at 60 percent of their 1926 level, whereas dividend and interest payments stood at 150 percent of their level the same year. Total wages had risen by 28 percent since 1932, while the increase in the profits of the 840 largest companies in the United States was 42 percent from 1933 to 1934. See Congressional Record, 74th Congress, 1st Session, May 15, 1935, 7568.

71. NLRB v. Jones and Laughlin Steel Corporation, 301 U.S. 1 (1937), 33.

72. Ibid., 37.

73. Ibid., 41.

74. There has been serious debate as to the way the Jones and Laughlin decision should be interpreted. One school, led by scholars such as Cushman in Rethinking the New Deal Court and G. Edward White in The Constitution and the New Deal (Cambridge, Mass.: Harvard University Press, 2000), offers an internalist analysis that denies that there was a constitutional revolution in 1937. The other school, best represented by the work of William Leuchtenburg in The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1995); and Bruce Ackerman, We the People: Vol. 1, Foundations (Cambridge, Mass.: Harvard University Press, 1991) emphasizes the social and institutional dynamics that led to the Court’s abrupt change of course. One account of this debate is Laura Kalman, “The Constitution, The Supreme Court, and the New Deal,” American Historical Review, 110, no. 4 (October 2005): 1052–1080. My account here does not take sides in this debate, since my aim is only to understand what institutional dynamics (as well as social ones) informed labor reformers’ thinking about the working class and its representation.

75. On this question, see Ellen Dannin, “Not a Limited, Confined Private Matter—Who Is an ‘Employee’ Under the National Labor Relations Act,” Labor Law Journal 59 (2008): 5–15.

76. Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941), 192–93. As Dannin notes, in 1947, the National Labor Relations Board cited the decision, explaining that the definition of employee “is broad enough to include members of the working class generally” and that to limit protection “only to employees of a particular employer, would permit employers to discriminate with impunity against other members of the working class, and would serve as a powerful deterrent against free recourse to Board processes.” Dannin, “Not a Limited, Confined Private Matter,” 8.

77. See Cohen, Making a New Deal.

78. This paragraph relies on Sean Farhang and Ira Kaltznelson, “The Southern Imposition: Congress and Labor in the New Deal and Fair Deal,” Studies in American Political Development 19 (Spring 2005): 12–14. There is very little archival material to trace the political history of this change. Notably the Wagner Archives are quite poor in this regard, although they contain a letter sent by Harvard students to ask Wagner to reconsider this amendment. The Keyserling papers do contain an undated document,—but it is filed along with other documents from 1934, which suggests that Frances Perkins wanted this amendment to be removed from the law and that Wagner thought that “without this amendment the law could not pass.” See the document titled “Miss Perkins,” undated, 1, Keyserling Papers, box 1, folder 9.

79. On the rise of the Southern Tenant Farm Union in eastern Arkansas in the early 1930s, see Michael Honey, Southern Labor and Black Civil Rights (Urbana: University of Illinois Press, 1993), 70.

80. Arnold T. Hill to Robert F. Wagner, April 2, 1934, Robert F. Wagner Archives, Georgetown University Archives, box 2, folder 7; Harvard Sitkoff, A New Deal for Blacks (New York: Oxford University Press, 2008), 127–128.

81. On the history of this clause, which finally led to the infamous McKay Supreme Court case, see Thomas C. Kohler and Julius G. Getman, “The Story of NLRB v. Mackay Radio & Telegraph Co.: The High Cost of Solidarity,” in Labor Law Stories, ed. Laura J. Cooper and Catherine L. Fisk (New York: Foundation Press, 2005), 13–54.

82. Kelly Miller, “Amend the Wagner Labor Bill,” undated, Wagner Archives, box 2, folder 8. The NAACP concurred, see Walter White (NAACP secretary) to Hugh S. Johnson, April 26, 1934, in Wagner Archives, box 2, folder 8. The majority rule provision remained a concern into 1935, as Congress debated the Wagner Act in its final forms; Arnold Hill to Robert Wagner, April 18, 1935, Wagner Archives, box 4, folder 38.

83. On this question, see Robert Zieger, Jobs and Freedom: Race and Labor Since 1865 (Lexington: University Press of Kentucky, 2007).

84. Arnold T. Hill to Robert F. Wagner, April 16, 1934, “A Statement of Opinion on Senate Bill S. 2926,” 3, Wagner Archives, box 2, folder 8. Dr. D. Witherspoon Dodge (chairman of the Board of Directors of the Atlanta Urban League) to Robert F. Wagner, April 20, 1934, Wagner Archives, box 2, folder 8; Maurice Moss (executive secretary of the Pittsburgh Urban League) to Robert F. Wagner, April 18, 1934, Wagner Archives, box 2, folder 8; Lloyd Garrison (treasurer of the NUL) to Robert F. Wagner, April 7, 1934, Wagner Archives, box 2, folder 8. For a general perspective on the NUL and the NNC at the time, see Thomas Sugrue, Sweet Land of Liberty: The Forgotten Struggle for Civil Rights in the North (New York: Random House, 2008), 33–58.

85. This may be a surprising position, but it makes sense if one remembers that the right of companies to hire replacement workers was not in doubt. On John Fitch’s role in this debate, see Kohler and Getman, “Story of NLRB,” 23.

86. NLRB v. Hearst Pub. Inc., 322 U.S. 111 (1944).

87. Ibid., 111.

Chapter 3. The Sociology of Harmony

1. John R. Commons, Myself (Madison: University of Wisconsin Press, 1934), 28.

2. John R. Commons, Institutional Economics: Its Place in Political Economy, vol. 1 (1934; repr., New Brunswick, N.J.: Transaction, 1990), 1–2. George, Progress and Poverty; see 221–225 for his analysis of unions, where he compared unions to Hindu creditors staging a hunger strike at the door of their debtor to obtain payment—a comparison favorable to the Hindu creditor, since he enjoyed the benefit of “superstition.” More generally, see Commons, Myself.

3. See Thorstein Veblen, “The Limitations of Marginal Utility,” in The Place of Science in Modern Civilization and Other Essays (1919; repr., New Brunswick, N.J.: Transaction, 1990) 231–251); Emile Durkheim, De la division du travail social (1893; repr., Paris: PUF, 2007); Max Weber, The Protestant Ethic and the Spirit of Capitalism (1905; repr., London: Penguin, 2002). My reading of the rise of economic sociology is based on Jean-Jacques Gislain and Philippe Steiner, La sociologie économique, 1890–1920 (Paris: PUF, 1995); Jean-Jacques Gislain, “L’émergence de la problématique des institutions en économie,” Cahiers d’économie politique 44 (2003): 19–47; Heino Heinrich Nau and Philip Steiner, “Schmoller, Durkheim, and Old European Institutionalist Economics,” Journal of Economic Issues 36, no. 4 (December 2002): 105–124.

4. “This pressure reaches the individual through the educational media of language and social institutions…. Institutions rest upon ideas and beliefs, and these are epitomized in language. Language in turn, by giving names to things and relations, and by thus transmitting to each individual the accumulated race experience, gradually brings him to the consciousness of himself. This is education.” John R. Commons, “Natural Selection, Social Selection,” in Selected Essays, vol. 1, ed. Malcolm Rutherford and Warren J. Samuels (New York: Routledge, 1996), 44.

5. However, unlike Durkheim’s, Commons’s work was cast in the mold of evolution, and, second, he conceived of his study of political economy as a religious endeavor. In his early years he saw the social gospel as the main source of mental habits through which a “standard of living” could be secured for the masses who were forced in a position of economic subordination.

6. William D. P. Bliss, ed., The Encyclopedia of Social Reform (New York: Funk and Wagnalls, 1897), quoted in Howell Harris, “Industrial Democracy and Liberal Capitalism,” in Harris and Lichtenstein, Industrial Democracy in America, 45.

7. David Montgomery, “Industrial Democracy or Democracy in Industry?,” in Harris and Lichtenstein, Industrial Democracy in America, 2–43; Milton Derber, The American Idea of Industrial Democracy (Urbana: University of Illinois Press, 1970); and Harris, “Industrial Democracy and Liberal Capitalism.”

8. Frank Walsh, quoted in McCartin, Labor’s Great War, 8.

9. John R. Commons, Labor and Administration (New York: Macmillan, 1913), quoted in Ronald Schatz, “From Commons to Dunlop: Rethinking the Field of Industrial Relations,” in Harris and Lichtenstein, Industrial Democracy in America, 100.

10. John R. Commons, “A Sociological View of Sovereignty” (1899), in Commons, Selected Essays, 70–145.

11. “Monopoly, once attained, is prone to exalt its material basis above its persuasive principles, and the interests of its hierarchy above the interests of the community.” Ibid., 118.

12. John R. Commons, “A New Way of Settling Labor Disputes” (1901), in Commons, Selected Essays, 162–171, 171, my emphasis.

13. Mark Bevir, “Sidney Webb: Utilitarianism, Positivism, and Social Democracy,” Journal of Modern History 74, no. 2 (June 2002): 217–252. See also the Webb’s classic work, Industrial Democracy (London: Longman, 1893).

14. John R. Commons, “American Shoemakers” (1909), in Commons, Selected Essays, 209–236.

15. Ibid., 212.

16. Jett Lauck, Political and Industrial Democracy, 1776–1928 (New York: Knopf, 1926), 7–8.

17. John R. Commons, The Legal Foundations of Capitalism (New York: Macmillan, 1924), 144–145, and Institutional Economics, 55–77.

18. Commons, Institutional Economics, 1.

19. Commons’s disdain for recent immigrants is briefly analyzed by Maurice Isserman in “God Bless Our American Institutions,” Labor History 17, no. 3 (1976): 316–317. On this question, see his Immigrants and Races in America (New York: Macmillan, 1920), chap. 6. By contrast, he did not believe that African Americans could assimilate; see his “The Negro,”Chautauquan 38 (November 1903): 223–238, quoted by Malcolm Rutherford and Warren J. Samuels in their introduction to John R. Commons, Selected Essays, 6.

20. Commons, “New Way of Settling Labor Disputes,” and Myself, 72. For a long account of the proceedings of the Joint Conference, see Arthur Suffren, The Coal Miner’s Struggle for Industrial Status (New York: Macmillan, 1926), 11–72.

21. Lauck, Political and Industrial Democracy.

22. Louis Brandeis, “Testimony Before the US Commission on Industrial Relations, January 23, 1915, Senate Documents, 64th Congress, 1st Session, 1915–1916,” in Commission on Industrial Relations Report and Testimony (Washington, D.C.: GPO, 1916), 8:7658–7676.

23. Duplex Printing Co. v. Deering, 254 U.S. 443 (1921), 488.

24. See the wonderful article by Pope, “Thirteenth Amendment versus the Commerce Clause.”

25. Commons, Institutional Economics, 70–71.

26. William Leiserson, Right and Wrong in Labor Relations (Berkeley: University of California Press, 1938), 11.

27. See Emile Durkheim, “Représentations individuelles et representations collectives,” Revue de Métaphysique et de Morale 6 (May 1898): 273–302.

28. William Leiserson to John Fitch, January 26, 1936, William Leiserson Papers, Wisconsin Historical Society, box 14, “Fitch” file.

29. J. Woolf, “Robert Wagner Sees a New Industrial Day,” New York Times, November 12, 1933, 6, quoted in Mark Barenberg, “The Political Economy of the Wagner Act,” Harvard Law Review 106, no. 7 (1993): 1379–1496, 1427. As the two following paragraphs suggest, I am largely indebted to Barenberg’s meticulous research.

30. Indeed, even when, later that year, events on the shop floor suggested that industrial harmony would be harder to attain than Wagner and his aides had anticipated, the senator reaffirmed his belief that all industrial disputes could be amicably settled in the interest of both sides and according to the logic of industrial democracy as defined by institutional economics: “Out of confusion which must necessarily accompany the beginning of any new scheme of so vast a scope, have risen cross currents of distrust and antagonism between labor and industry that have no substantial basis in fact… all the recent conflicts can be amicably settled when the parties have been brought together to discuss their differences in an atmosphere of calmness and disinterestedness and with a clearer knowledge of their respective rights and duties. Cooperation based on mutual trust and understanding must be the keynote henceforward.” Letter of Senator Wagner to the honorable Marion Smith, October 22, 1933, RG 25, National Archives, quoted in James Gross, The Making of the National Labor Relations Board: A Study in Economics, Politics and the Law (Albany: State University of New York Press, 1974), 33. Tellingly, Wagner proceeded to accept a presidential appointment to the National Labor Board, which was to provide mediation services to end the disputes that hampered the recovery effort. Wagner of course knew that the disputes stemmed from a widespread resistance to the idea of unionization, but he remained adamant, stating that “the chief hope that I had when accepting the President’s appointment… was that its influence might work a change in our people’s ideas about industrial disputes. See New York Times, November 20, 1933, 3.

31. Wagner, 79 Congressional Record, 4918, quoted in Barenberg, “Political Economy of the Wagner Act,” 1483.

32. For Wagner on social disintegration, see 79 Congressional Record, 9417, “Cooperation was the only safeguard against disintegration,” quoted in Barenberg, “Political Economy of the Wagner Act,” 1427.

33. The reference to “hearts and minds” is noted in Barenberg, “Political Economy of the Wagner Act,” 1475. This cartoon is reproduced in Alan Dawley, Struggles for Justice (Cambridge, Mass.: Harvard University Press, 1991), 387.

34. On this important development, see McCartin, Labor’s Great War, 173–220.

35. “The Rights of the Man on the Job: Paul Litchfield’s 29th Radio Talk to Goodyear Workers,” Wagner Archives, LA 715, box 2, folder 7.

36. See Dubofsky, State and Labor, 107–136.

37. National Industrial Conference Board, Individual and Collective Bargaining Under the NIRA: A Statistical Study of Present Practice (New York: NICB, 1933), 17.

38. Gross, Making of the National Labor Relations Board, 24.

39. “An Attempt to Create Labor Union Dictatorship of American Industry,” leaflet distributed to U.S. Steel workers, Wagner Archives, LA 715, box 2, folder 8.

40. The literature on company unionism is not extensive, mostly because there has been a tendency to dismiss them as corporate shams. However, see David Brody, Workers in Industrial America: Essay on the Twentieth Century Struggle (New York: Oxford University Press, 1993); David Farris, “From Exit to Voice in Shop-Floor Governance: The Case of Company Unions,” Business History Review 69, no. 4 (Winter 1995): 494–529; Daniel Nelson, “The Company Union Movement, 1900–1937: A Reexamination,” Business History Review 56, no. 3 (Autumn 1982): 335–527.

41. Robert Wagner, “Company Unions: A Vast Industrial Issue,” New York Times, March 11, 1934, 21.

42. Percy S. Brown, “The Work and Aim of the Taylor Society,” Annals of the American Academy of Political and Social Science 119 (May 1925): 134–139; Carlos E. Pabon, “The Taylor Society and Political Economy in the Interwar Period” (Ph.D. diss., University of Wisconsin, 1992).

43. Morris L. Cooke, “Who Is Boss in Your Shop?,” Annals of the American Academy of Political and Social Science 71 (May 1917): 167–185.

44. The idea of “new unionism” and the contribution of Hillman of Hillman to the New Deal are analyzed by Fraser in Labor Will Rule, 259–348.

45. Robert Wagner, “Talk on Labor Relations,” February 29, 1936, Wagner Archives, box 103, folder 36.

46. Mary Van Kleeck to Robert F. Wagner, March 12, 1934, 1, Wagner Archives, box 41, folder 7.

47. Ibid., 2.

48. Roger Baldwin to Robert F. Wagner, April 1, 1935, 1, 2, Wagner Archives, box 41, folder 7.

49. Robert F. Wagner to Mary Van Kleeck, May 10, 1934, Wagner Archives, box 41, folder 7. On Christopher Tomlins and the critical legal scholars who wrote against the New Deal labor relations regime in the 1980s, see my forthcoming “What Can the Critical Synthesis Teach Us Now That the Unions Have (Almost) Gone?,” Labor History.

50. Green et al., Labor’s Charter of Rights, 48.

51. Karl Marx, Capital: A Critique of Political Economy (New York: Cosimo, 2007), 451–458. The unpublished chapter 6, “The Results of the Direct Production Process,” was abandoned in the course of preparation of volume 1 of Capital. It included a section on “Productive and Unproductive Work,” which can be accessed at http://www.marxists.org/.

52. Marx, Capital, 451–458.

53. Commons, Legal Foundations of Capitalism, 155–156.

54. John R. Commons, “The Right to Work” (1899), in Commons, Selected Essays, 66.

55. Allgeyer v. Louisiana, 165 U.S. 578 (1897). On the importance of this case, see Peter H. Irons, People’s History, 248–249.

56. Commons, Institutional Economics, 59–67.

57. Ibid., 64–67

58. Ibid., 67–69. On Commons’s views on Hoover’s policy during the Great War, see Isserman, “God Bless Our American Institutions,” 318.

59. Commons, Institutional Economics, 64–67.

60. Chris Nyland, “Taylorism, John R. Commons, and the Hoxie Report,” Journal of Economic Issues 30, no. 4 (December 1996): 985–1016, on which the second half of this paragraph relies.

61. Commons, Legal Foundations of Capitalism, 146–147.

62. Ibid., 314–315.

63. Similarly, in France, the sociologist Maurice Halbawchs argued that the working class was characterized by the fact that it worked in relation with inanimate matter, not men. See Pierre Lantz, “Travail, Concept ou notion multifonctionnelle” (1992), quoted in Robert Castel, Les metamorphoses de la question sociale (Paris: Seuil, 1994), 574–576.

64. Commons, Legal Foundations of Capitalism, 149.

65. William Leiserson to Senator Thomas, May 9, 1939, 9, Leiserson Papers, box 28, “NLRB, 1935–41” file.

66. Quoted in Schatz, “From Commons to Dunlop,” 103.

Chapter 4. Is a Foreman a Worker?

1. Ira B. Cross, “When Foremen Joined the CIO,” Personnel Journal no. 18 (February 1940): 274–278.

2. “Excerpts from Official Report of Proceedings Before the National Labor Relations Board,” Testimony of Thomas Dwyer, 430–434, Packard v. NLRB file, Records of the Supreme Court of the United States, RG 267, National Archives, box 4819. I have chosen to analyze the movement through the lens of the 1947 Packard v. NLRB Supreme Court case (330 U.S. 485) because it generated a large amount of archival documents.

3. Matter of Packard Motor Company, 61 NLRB 4 (decided March 1945) and 64 NLRB 204 (decided December 1945). In the first case the board agreed that foremen were “employees” within the meaning of the act, and in the second it dealt with the company’s refusal to bargain with the FAA. The Supreme Court decision in Packard came one year later, in January 1947.

4. Cross, “When Foremen Joined the CIO,” 279. Sumner Slichter did not believe that foremen should be allowed to organize; see his “The Taft-Hartley Act,” Quarterly Journal of Economics 63, no. 1 (February 1949): 1–31; along with Don Lescohier, “The Foreman and the Union,” Personnel Journal 15, no. 1 (August 1938): 18–25; and William Leiserson’s article in Foremen’s Magazine, “Decreased Costs and Increased Production,” May 1927, 6–7.

5. Robert Scigliano, “Trade-Unionism and the Industrial Foreman,” Journal of Business 27, no. 4 (October 1954): 293.

6. Nelson, Managers and Workers; Stephen Meyer, The Five Dollar Day (Albany: State University of New York Press, 1981); Howell Harris, The Right to Manage (Madison: University of Wisconsin Press, 1981).

7. Frederick Taylor, Shop Management (New York: Harper, 1911), 95; Sanford Jacoby, Employing Bureaucracy: Managers, Unions, and the Transformation of Work in the Twetnieth Century, 2nd ed. (Mahwah, NJ: Lawrence Erlbaum, 2004), 30–36; Nelson, Managers and Workers, 34–54; Alfred Chandler, Scale and Scope: The Dynamics of Industrial Capitalism (Cambridge, Mass.: Harvard University Press, 1990).

8. “Excerpts from Official Report of Proceedings Before the National Labor Relations Board,” testimony of James Wilkins, Packard v. NLRB file, 976–1032.

9. Jacoby, Employing Bureaucracy, 10–16. On contractors, see Montgomery, Fall of the House of Labor, 9–57. On Americanization efforts at Packard, see Thomas Klug, “Employer Strategies in Detroit,” in On the Line: Essays in the History of Auto Work, ed. Nelson Lichtenstein and Stephen Meyer (Urbana: University of Illinois Press, 1989), 56–57. In other companies, however, foremen were dutiful soldiers of the struggle for Americanization, a fact that reflected the ethnic fault line separating them from the rank and file. Bethlehem Steel managers regularly conflated loyalty to the company and loyalty to the country and foremen were at the forefront of Americanization campaigns in the area of Bethlehem. Meanwhile, the company regularly organized “foremen’s meetings,” during which the “Americanism” of foremen was emphasized, along with their important role in securing the cooperation of “foreign-born workers.” Thus, in a show of managerial unity, in May 1918 the foremen of the company signed a pledge of allegiance to America along with the superintendents, general managers, and officials of the company. See the company-dominated journal Bethlehem Steel 1, nos. 1–2 (May 15, 1918): 13–14, Bethlehem Area Public Library, online.

10. Montgomery, Fall of the House of Labor, 224–226; Nelson, Managers and Workers, 152–153; Chandler, Visible Hand; Kenneth Kolker, “The Changing Status of the Foreman,” Bulletin of the Business Historical Society 22, no. 3 (June 1948): 84–105.

11. At Packard, there was no difference between a straw boss and an assistant foreman.

12. This paragraph is based on the testimonies of the foremen who were part of the Packard case.

13. Weirton Steel is a good example. On Ernest Weir’s reliance on foremen to fight the Amalgamated Association of Iron and Steel Workers (AAISW) in 1934, see Gross, Making of the National Labor Relations Board, 172. On the persistence of traditional foremanship see also Metzgar’s moving account, Striking Steel, 33–34.

14. Paul H. Douglas, “Plant Administration of Labor,” Journal of Political Economy 27 (July 1919).

15. On the idea that Fordism rested on the agreement of workers, see Michael Burawoy, Manufacturing Consent (Chicago: University of Chicago Press, 1977); Pilon and Vatin, “Retour sur la question salariale,” 93–116; McCartin, Labor’s Great War, 75–80.

16. “Brief of Packard Motor Company,” Packard v. NLRB file, 4. Nelson Lichtenstein, “The Man in the Middle: A Social History of Automobile Foremen,” in Lichtenstein and Meyer, On the Line, 156. This transformation of foremanship is visible in many of the articles published in the National Association of Foremen’s journal, Foremen’s Magazine. See, e.g., “Why Is Organization Necessary in the Shop?” February 1927, 10–12.

17. See the following articles in Foremen’s Magazine: “What Makes an Efficient Executive,” June 1927; “How to Attain Leadership Over Men,” June 1927; “Encouraging Thought in the Shop,” June 1927, “Management and the Laws of Human Relations,” October 1928; Kolker, “Changing Status of the Foreman”; Stephen P. Waring, Taylorism Transformed: Scientific Management Theory Since 1945 (Chapel Hill: University of North Carolina Press, 1991). Notably, during the war, training was expanding to include classes on EO 8802 and the employment of women.

18. On this constitutional debate, see Leuchtenburg, Supreme Court Reborn.

19. “The purposes of the National Association (of Foremen) are as follows: to help in the promotion of better foremanship, by studying the needs and opportunities of industry in order to make each individual foreman a power for good in his own organization and community. To accomplish this the Association will promote: City wide foremen’s clubs, Factory foremen’s clubs, Educational work for workmen aspiring to be foremen, better industrial relations, stabilized employment and profit in industry. The membership includes operative foremen, job foremen, superintendents, department heads, personnel directors, educators, and all those connected with shop management.” “What Is the National Association of Foremen? The Aims and Purposes of the National Association and Its Relation to Industry,” Foremen’s Magazine, August 1928, 9, 38. See also the letter from Frank H. Ireland, president of the NAF, to the members of the National Labor Relations Board, February 23, 1944, in the “Supervisory Employees” file, CMF, RG 25, National Archives, box 2; Kolker, “Changing Status of the Foreman,” 101.

20. See, e.g., the following articles published in Foremen’s Magazine: “Every Foreman a Business Manager,” December 1927; “This Way Up the Ladder of Success,” April 1927; John D. Rockefeller, “Character—the Foundation of Successful Business,” March 1928; “Ambition—The Key to Promotion,” May 1929; “The Foreman as Executive,” July 1928; “The Man at the Helm,” July 1928; “Can the Foreman Be a Manager?” February 1929.

21. W. J. Donkel, “The Foreman’s Job Is to Make a Profit: Some Fundamental Principles That Will Assist the Foreman to Cut Costs,” Foremen’s Magazine, December 1927, 4–5, 29.

22. “Foremen Will Act in Labor Relations: New Group Call Conference Here Saturday to Pave the Way for Harmony,” New York Times, September 28, 1938; see also Lescohier, “Foreman and the Union”; E. C. Grace, president of Bethlehem Steel Corporation, “Foremanship in Industry: A Statement by President Grace on the Foreman’s Place in Employee-Management Relations,” Foremen’s Magazine, February 1928, 10.

23. James A. Smith, “Can Any Foreman Safely Rest on His Laurels?,” Foremen’s Magazine, June 1929, 13, 24. The same was the case at Ford. See Zunz, Making America Corporate, 136. Zunz stresses the middle-class nature of foremanship. Lichtenstein provides a different perspective in his “Man in the Middle,” 158. Contrary to Zunz, Lichtenstein argues that foremen were “on the wrong side of the collar line.”

24. Lichtenstein deals with these issues at greater length than I do in his “Man in the Middle.” Notably, he shows that in the Detroit area, the importance of Masonry in foremen circles testified to these cultural differences; see 159.

25. “Brief for Packard Motor Company,” Packard v. NLRB file, 15.

26. Carl Dean Snyder, White-Collar Workers and the UAW (Urbana: University of Illinois Press, 1973), 39–43.

27. Fritz J. Roethlisberger, “The Foreman: Master and Victim of Double Talk,” Harvard Business Review 23 (1945): 292.

28. On the Hawthorne experiments, see Richard Gillespsie, Manufacturing Knowledge: A History of the Hawthorne Experiments (New York: Cambridge University Press, 1993).

29. Robert H. Keys, the president of the Foreman’s Association of America, often expressed the foremen’s feeling that they were not part of management: “We foremen are told in meetings and in writing that we are part of management, but there isn’t one foreman in a thousand who ever knows the true costs of operating his department, for that information is withheld from him. If he tries to get the facts he gets the run around…. We are told that we should have knowledge of how other departments work, but when we try to learn how we are looked upon by top management.” Robert H. Keys, radio broadcast, March 23, 1943, Packard v. NLRB file, 1698. These broadcasts were entered into the materials of the Supreme Court case as the company’s exhibit no. 49-A. Oral history with Carl Brown (1974), Joe Brown Collection, UAW Archives, College of Urban, Labor and Metropolitan Affairs, Wayne State University (hereafter UAW-CULMA), 8.

30. Lichtenstein, “Man in the Middle,” 162.

31. James A. Ward, The Fall of Packard Company (Stanford: Stanford University Press, 1995), chap. 1; “Brief for Packard Motor Company,” Packard v. NLRB file, 1–2.

32. “New Allies in Guise of Foremen Keep Rallying to CIO Banner,” Kelsey Hayes Picket, June 6, 1939, with notes by “JB” (most probably John Brophy) providing some explanations on the February 1938 attempt, UAW-CULMA, box 10, “Foremen and Supervisors” folder; application of United Foremen and Supervisors for a LIU Charter (application 1205), November 21, 1938, 6 pages, collection 1, CIO Archives, Catholic University of America (hereafter CUA), folder 33, box 64. Key CIO members opposing the UFS included John Brophy, the director of the National CIO Organization Department. I deal with the complex relationships between the CIO and foremen’s unions in Chapter 6. Ira B. Cross, “Foremen’s Union Finale,” Personnel Journal (March 1940): 346, and “When Foremen Joined the CIO,” 277. The pay cut amounted to 10 to 15 percent. On Kelsey Hayes, see Nelson Lichtenstein, Walter Reuther: The Most Dangerous Man in Detroit (Urbana: University of Illinois Press, 1995), 63.

33. Letter from J. R. Bell to George Stephanson granting affiliation, August 7, 1939, collection 1, CIO Archives, CUA, folder 13, box 65; “Organized Foremen Expand,” United Automobile Worker, April 29, 1939; Cross, “When Foremen Joined the CIO,” 280. I deal with this controversy at greater length in the next chapter.

34. “Excerpts from Official Report of Proceedings Before the National Labor Relations Board,” Testimony of Thomas Dwyer, 437–443, Testimony of James Beyerley, 463–473, Packard v. NLRB file. These testimonies were recorded during the Trial Examiner’s investigation. It has not been possible to determine precisely the number of Packard Foremen who joined the UFS, but it is unlikely that more than fifteen did.

35. “Agenda: Point no. 3–Report of President Thomas,” UAW Executive Board Meeting Collection, UAW-CULMA, folder 12/4/39, box 2.

36. Andrew Levison, “Wartime Unionization of Foremen” (PhD diss., University of Wisconsin, 1955); Ernest Dale, “The Unionization of Foremen,” AMA Research Report6, 1945, available at the Department of Labor Library (hereafter DOL), 4–34; Oral history interview with Carl Brown, former official of the FAA, November 13, 1974 (the interview was conducted by Howell Harris), UAW-CUMLA, 1–6.

37. “Excerpts from Official Report of Proceedings Before the National Labor Relations Board,” Testimony of Robert H. Keys, Packard v. NLRB file, 72–73; Dale, “Unionization of Foremen,” 8–14.

38. “Excerpts from Official Report of Proceedings Before the National Labor Relations Board,” Testimony of Robert H. Keys, Packard v. NLRB file, 128.

39. On the technical problems attending the move to war production, see Lichtenstein, Walter Reuther, 161, on which this paragraph relies heavily.

40. I deal with the NLRB’s work on the foremen’s issue in the next chapter.

41. Union Collieries, 41 NLRB 174 (1942); Maryland Drydock, 49 NLRB 105 (1943); Charles Larrowe, “A Meteor of the Industrial Relations Horizon: Foreman’s Association of America,” Labor History 2 (1961), 259–294.

42. Levison, “Wartime Unionization of Foremen,” 192–193.

43. The Supervisor, January 1945, 14; September 1944, 18; May 1944, 9; October 1944, 12; quoted in Levison, “Wartime Unionization of Foremen,” 131.

44. Levison, “Wartime Unionization of Foremen,” 178. On the debilitating effects of the no strike pledge and of bargains with the state in general, see Nelson Lichtenstein, Labor’s War at Home: The CIO in World War Two (Philadelphia: Temple University Press, 1982); Tomlins, State and the Unions; and Gerald Friedman, Reigniting the Labor Movement (New York: Routledge, 2007).

45. “Foremen Force Shopfloor Issue,” New York Times, May 21, 1944; Dale, “Unionization of Foremen,” 13.

46. “When Foremen Organize, Here’s What They Demand,” Factory Management and Maintenance 105, no. 4 (April 1947): 64.

47. Quoted in Nelson Lichtenstein, “Great Expectations: The Promise of Industrial Jurisprudence and Its Demise,” in Harris and Lichtenstein, Industrial Democracy in America, 113–141.

48. Quoted in Harris, Right to Manage, 64. Carl Brown, a foreman with Ford, painted a similar picture: “I would say it made it more difficult to maintain production schedules because prior to the recognition of the UAW, as a bargaining agent for employees, the employee was at the mercy of management.” Oral history interview with Carl Brown (1974), UAW-CUMLA, 8.

49. “Excerpts from Official Report of Proceedings Before the National Labor Relations Board,” Testimony of Robert Turnbull, 527, 629; Testimony of Prosper Traen, 300–301; Levison, “Wartime Unionization of Foremen,” 110.

50. “Excerpts from Official Report of Proceedings Before the National Labor Relations Board,” Testimony of Robert Turnbull, 617; Testimony of Prosper Traen, 319–321. “The Voice of Organized Foremen,” Robert H. Key’s radio address, March 16, 1944.

51. “Excerpts from Official Report of Proceedings Before the National Labor Relations Board,” Testimony of Prosper Traen, 300–321. Oral history interview with Carl Brown (1974), UAW-CUMLA, 7–8.

52. “Excerpts from Official Report of Proceedings Before the National Labor Relations Board,” Testimony of Prosper Traen, 291; Testimony of R. Turnbull, 544; Report and Findings of the National War Labor Board in Certain Disputes Involving Supervisors (Washington, D.C.: GPO, January 19, 1945), 129 (this report is available at the DOL).

53. By this I mean the lack of an objective status giving specific benefits or rights at work. I have generally refrained from using the word “status” because of its obvious historiographical connotations. See Richard Hofstadter’s interpretation of Progressivism in The Age of Reform (New York: Knopf, 1955).

54. Letter of E. Gordon to the House Military Affairs Committee on Manpower Problems, House Hearings Before the Committee on Military Affairs on H.R. 2239, 1742, 1728, 992, 1st Session, April 6, 1943, 511.

55. See “Brief of Packard Motor Company,” 19–20.

56. As Jennifer Klein and other historians have shown, during the 1930s an ideology of security took hold in American society, bringing economists, policy experts, and grassroots movements in support of policies designed to protect people from economic insecurity—the Wagner Act and the Social Security Act were pillars of this new “economic citizenship.” Klein, For All These Rights.

57. Robert H. Keys, radio broadcast, December 16, 1943, Packard v. NLRB file, 1619.

58. See Klein, For All These Rights, 98.

59. Testimony of James Beyerley, House Hearings Before the Committee on Military Affairs on H.R. 2239, 1742, 1728, 992, 1st Session, 1943, 463; Testimony of Thomas Dwyer, House Hearings Before the Committee on Military Affairs on H.R. 2239, 1742, 1728, 992, 1st Session, 1943, 457–458. See also the letters sent to the House Military Affairs Committee by F. A. Maas, 514–515. The record of the hearings is available at the DOL.

60. Testimony of Robert F. Turnbull, House Hearings Before the Committee on Military Affairs on H.R. 2239, 1742, 1728, 992, 1st session, 1943, 510.

61. This point used to be one of the most contentious debates in labor history. My paragraph reflects both labor historians’ growing appreciation of the state and unions as institutions and my focus on the differences between foremen and rank-and-file workers.

62. See Zieger, The CIO, 168–171; Lichtenstein, Labor’s War at Home, 75–76.

63. Levison, “Wartime Unionization of Foremen,” 419.

64. Report and Findings of the National War Labor Board, 129. In fourteen cases the earnings of top hourly rated men exceeded those of their supervisors.

65. Ibid., 131.

66. On this question, see the excellent summary of Kennedy in Freedom from Fear, 746–797.

67. Letter of E. Gordon, House Hearings Before the Committee on Military Affairs on H.R. 2239, 1742, 1728, 992, April 6, 1943, reprinted at 512.

68. Packard Brief, Packard v. NLRB file, 18. Lichtenstein, Labor’s War at Home, 117.

69. C. Wright Mills, White Collar (New York: Oxford University Press, 1951), 324–354. On C. Wright Mills’s White Collar, see Nelson Lichtenstein, “Class, Collars, and the Continuing Relevance of C. Wright Mills,” Labor 1, no. 3 (2004): 109–123; Michael Burawoy, “White Collar Revisited,” Qualitative Sociology 30 (2007): 501–504.

70. On this question see Castel, Les metamorphoses; and Jean-Charles Asselain, La France en mouvement (Paris: Jean Bouvier, 1986).

71. Their efforts led to the creation of a new social category called les cadres, whose members then created unions. See Luc Boltanski, Les cadres: Formation d’un groupe social (Paris: Minuit, 1983). I deal at greater length with this question in the following chapter.

72. “Excerpts from Official Report of Proceedings Before the National Labor Relations Board,” Testimony of Robert H. Keys, Packard v. NLRB file, 134–143; “History of the Movement to Organize Foremen of the Automotive Industry, General Motors Pamphlet,” DOL, 3.

73. Robert H. Keys, radio broadcast, April 14, 1944, 1575; see also the letters of Bradley and Wilkins to the House Committee on Military Affairs, 512.

74. Thus E. Gordon explained that he had joined the FAA “to protect the interest of all supervision, just as labor is protected by the CIO.” House Hearings Before the Committee on Military Affairs on H.R. 2239, 1742, 1728, 992, 1st Session, 1943, 512.

75. Theodore Bonaventura—secretary of the FAA—statement, quoted in Levison, “Wartime Unionization of Foremen,” 103. Bonaventura explained that the competition between foremen was often increased by superintendents in the hope of speeding up production. Testimony of Robert F. Turnbull, 1943 House Hearings Before the Committee on Military Affairs on H.R. 2239, 1742, 1728, 992, 507; Dale, “Unionization of Foremen,” 9.

76. “Excerpts from Official Report of Proceedings Before the National Labor Relations Board,” Testimony of Prosper Traen, Packard v. NLRB file, 383–391, 386.

77. On the American Association of Engineers, see M. P. McGirr et al., Technologists’ Stake in the Wagner Act (Chicago: American Association of Engineers, 1944). The AAE was trying to find a middle-of-the-road approach to unionism. It had not failed to notice that the National Labor Relations Board had taken a more expansive approach to the concept of “employee” than the Department of Labor in its administration of the Fair Labor Standards Act (professional workers were excluded from the purview of the FLSA), and their main concern was to protect their professional identity. Accordingly, theirs was a cultural struggle to convince the swelling ranks of white-collar workers that professional values and collective bargaining were not incompatible. Robert H. Keys, radio broadcast, March 9, 1944, 1688. “Brief for MOU,” Union Collieries Case No R-3464, informal case files RG 25, National Archives—I deal with the miners’ claim to be “employees” at greater length in the next chapter.

78. Robert Keys, radio broadcast, March 24, 1943, 1524; radio broadcast, March 31, 1943, 1564; radio broadcast, December 16, 1943: “We demand the right to bargain collectively in accordance with the procedure laid down in the Wagner Act, and we have no intention of taking a breathing spell until we get it. In making such a demand we are only asking for our constitutional rights. The rank and file of industry enjoy that right. Why should foremen be denied the same privilege?”

79. Howell Harris has studied this response in Right to Manage, 75–89. A good example of this cooperation was the article titled “Flash: Foremen Organize!,” published in Dodge Victory News, March 24, 1944, reprinted in the “Brief for Packard Motor Company,” Packard v. NLRB file, 1527.

80. “Brief for Packard Motor Company,” Packard v. NLRB file, 3–5. See also the testimony of Clarence B. Randall, vice president of Inland Steel, 1943 House Hearings Before the Committee on Military Affairs on H.R. 2239, 1742, 1728, 992, 88: “In industry, as in government or anywhere else, there are two classes of people; there are those who decide and those who carry out. You cannot organize human society on any other basis than there be those who decide and those who carry out. In private enterprise management is the decider. A foreman or supervisor is management.” For Wagner’s comment, see 74th Congress, 1st Session, 79 Congressional Record S. 7573 (May 15, 1935).

81. See the testimony of C. E. Wilson, 1943 House Hearings Before the Committee on Military Affairs on H.R. 2239, 1742, 1728, 992, 62–87, as well as the testimony of Heath S. Clark (president of the Rochester and Pittsburgh Co.), 37, of Walter Gordon Merritt, 52–59, and of Edward E. Butler (executive vice president, Vinco Corporation, Detroit), 90–92. See “Businessmen Assail Unionizing Warshop Foremen: Wilson of GE and Others Use the Fall of France as Argument Against It,” New York Times, March 31, 1943, 40.

82. “Re: Unions… Should Foremen Be Allowed to Organize?,” Detroit Free Press, April 4, 1943; Kim McQuaid, Uneasy Partners: Big Business in American Politics, 1945–1990 (Baltimore: Johns Hopkins University Press, 1994), 18–20. See also Elizabeth Fones Wolf, Selling Free Enterprise, Selling America: The Business Assault on Labor and Liberalism, 1945–1960 (Urbana: University of Illinois Press, 1994), chap. 1; and Sanford Jacoby, Modern Manors: Welfare Capitalism Since the New Deal (Princeton: Princeton University Press, 1997), who argues that recalcitrant companies sought to update welfare capitalism after the 1930s.

83. This paragraph is based on Nelson Lichtenstein, Labor’s War at Home, 118; Walter Reuther, 202; Harris, Right to Manage, 64; and George Lipsitz, Rainbow at Midnight: Labor and Culture in the 1940s (Urbana: University of Illinois Press, 1994), 62.

84. See Harris, Right to Manage, 66; Jacoby, Employing Bureaucracy, 171. The idea that foremen should be enlisted in the struggle derived from the belief, in the words of Ohio Bell Telephone President A. F. Carter, that “business must produce 99% of its own skill…. The most successful business institutions have always been those having a competent, painstaking, and above all self-perpetuating organization. Business owes itself to produce its manpower, big and little.” A. F. Carter, “The Employee and the Boss,” Foremen’s Magazine, October 1929, 14.

85. In Congress, Heath S. Clark, the president Rochester and Pittsburgh Coal Company, located in Indiana, Pennsylvania, fully gave vent to those fears: “To place these men in the same labor organization with the men they boss, with the men with whom they contract, violates every principle of sound management. To permit these men to belong to the same organization, to fraternize with the men they boss, to take an oath of mutual support of one another, to logroll with each other in the negotiation of the wage contract, or in the daily operation of the mine, is fundamentally wrong, and above all it is entirely impossible and impractical. It creates an artificial community of interest which is detrimental to both sides.” House Hearings Before the Committee on Military Affairs on H.R. 2239, 1742, 1728, 992, 1st Session, 1943, 36.

86. General Motors, History of the Movement to Organize Foremen in the Automotive Industry, Appendix E, 6. See also the pamphlet published by Chrysler in 1946: “Shall the Rank and File Boss the Plants?,” DOL. That General Motors’ C. E. Wilson should have been at the forefront of the reaction against foremen’s unionism is not surprising. At General Motors, foremen were still endowed with the authoritarian powers they needed to really control the assembly line and still had the power to hire and fire. Like Packard, since the 1920s, General Motors had followed the current of the new foremanship and taken important steps to induct foremen into the managerial hierarchy. The title “working foreman” had been abolished, and their earnings had been pegged 25 percent above those of the highest paid worker. The company also offered more than forty training programs each year. GM had also taken the lead in the public advocacy of supervisory training programs, with William Knudsen warning American managers as early as 1937, “I plead with you to go out into your factory and gather up the bottom strata. Someone else has been trying to gather it up while you were not looking.” See Richard Coopey and Alan McKinlay, “Power Without Knowledge: Foucault and Fordism, c. 1900–1950,” Labor History 51, no. 1 (2010): 117.

87. 1949 Hearings on S. 249 Before the Senate Committee on Labor and Public Welfare, 81st Congress, 1st Session, 2169.

88. See Atleson, Values and Assumptions. I am also indebted to Virginia Seitz, “The Value of Values and Assumptions to a Practicing Lawyer,” Buffalo Law Review 57 (May 2009): 687–708, for my understanding of the tension between the common law and statutes.

89. Hearings Before the Committee on Military Affairs, House of Representatives, 78th Congress, 1943, 2.

90. Member of Congress Jennings, Congressional Record, February 4, 1946, 867.

91. Packard brief, Packard v. NLRB file, 98; Dale, “Unionization of Foremen,” 29–31; testimony of C. E. Wilson, 1943 House Hearings Before the Committee on Military Affairs on H.R. 2239, 1742, 1728, 992, 84.

92. On these debates, see Alan Brinkley, The End of Reform (New York: Norton, 1994); Harry B. Coen, “The Foreman as Part of Management” (paper, American Society of Mechanical Engineers, November 29–December 3, 1943), published and condensed in Mechanical Engineering (April 1944): 248–250, 256. See also Foner, Story of American Freedom, 235–237.

93. Coen, “Foreman as Part of Management,” 250.

94. Packard Brief, Packard v. NLRB file, 81.

95. On the changing nature of the organization of capitalism, see Chandler, Visible Hand. In the 1960s John K. Galbraith went so far as saying that these managers represented a technostructure that had seized power from owners and stockholders, in The New Industrial State (Boston: Houghton Mifflin, 1968). See, e.g., the speech delivered by Donaldson Brown, vice chairman of General Motors, before the 250th meeting of the Conference Board in New York, on March 18, 1943: “American industry has demonstrated its ability to meet the situation of the Nation’s wartime production requirements. That ability has derived from the experience, skill and know-how of countless human individuals trained in the school of American industrial management…. The very foundations upon which management rests, and the things for which it stands, are threatened, strange to say, by those who seek to improve human relationships which industry and to improve the welfare of the individual.” Inserted in the record of the 1943 House Hearings Before the Committee on Military Affairs on H.R. 2239, 1742, 1728, 992, 229–235, quote at 229.

96. Testimony of C. E. Wilson, 1943 House Hearings Before the Committee on Military Affairs on H.R. 2239, 1742, 1728, 992, 84.

97. Jefferson-Standard Broadcasting Co., 94 NLRB 1507 (1953). The case bore upon the action of technicians accused of impugning the reputation of their company. The court found that they owed an obligation of loyalty to the company and that their dismissal was not unfair. See Atleson, Values and Assumptions, 84–87.

Chapter 5. The Other Side of Industrial Pluralism

1. William Leiserson to John A. Fitch, October 9, 1940, Leiserson Papers, “Speeches and Articles,” box 50. In a famous letter sent to John R. Commons, Leiserson railed against the jurists: “The lawyers seem to have the notion that the only way to arrive at the truth is by two opposing lawyers trying to keep things out of the record, and whatever gets in, that’s the truth. They have no understanding of the method of inquiry that we call economic or scientific research”; quoted in James Gross, “Economics, Politics and the Law: The NLRB’s Division of Economic Research,” Cornell Law Review 55, no. 3 (1970): 321–347, 339. “Two Nice Men,” Time, May 8, 1939, http://www.time.com/. Leiserson replaced Donald Wakefield Smith, a recess appointment, but he soon deadlocked with Edwin Smith. Only with the appointment of Harry Millis in 1940 did the board get the new majority that Roosevelt wanted. See “New Labor Chairman,” Time, November 25, 1940, http://www.time.com/.

2. See “Two Nice Men.” Time called Leiserson a “merry, contemplative cherub of 56.” Before he became an arbitrator, Leiserson taught economics at Antioch College. After working in the needle industry, he was an arbitrator for the NRA, the petroleum field, and finally the railroad field. See Michael Eisner, William Morris Leiserson: A Biography (Madison: University of Wisconsin Press, 1967).

3. Notably, in 1938, the Republicans gained eight seats in the Senate and eighty-one in the House of Representatives, and the largely prolabor LaFollette Committee was replaced by the Dies Committee, or the House Un-American Activities Committee (HUAC).

4. Tomlins, State and the Unions. In this book, Tomlins argued that the moderate course of the NLRB was foreordained by the history of its adoption. However, he revised his position in a later article, “The New Deal, Collective Bargaining and the Triumph of Industrial Pluralism,” Industrial and Labor Relations Review 39, no. 1 (October 1985): 19–34, in which he argues that only after the Wagner Act became law did the industrial pluralists steer it in a conservative direction. James Gross also sees the nomination as an important turning point; see James Gross, The Reshaping of the National Labor Relations Board (Albany: State University of New York Press, 1981), 226–259.

5. Here I am drawing on the history and sociology of expertise, which is often critical and emphasizes that the role of experts is often—in the guise of scientific disinterestedness—to maintain the established order. See Stephen Brint, In an Age of Experts: The Changing Role in Politics and Public Life (Princeton: Princeton University Press, 1994); and Thomas Haskell, The Authority of Experts (Bloomington: University of Indiana Press, 1984). On the contrary, see Romain Huret, “Les experts sociaux face à la société civile: La Campagne des pauvres et le ministère de la santé, de l’éducation et du bien-être, avril-juin 1968,”Revue d’histoire moderne et contemporaine 51–52 (2004): 118–140; and Shelton Stromquist, “Class Wars: Frank Walsh, the Reformers, and the Crisis of Progressivism,” in Labor Histories, ed. Eric Arnesen et al. (Urbana: University of Illinois Press, 1998), 97–124. Both emphasize the capacity of experts to go against the established order and advocate change. My own perspective here goes with Huret and Stromquist. Like Huret, however, I emphasize the lack of power of experts.

6. The foremen at this Wisconsin auto parts factory received their affiliation with the UFS-CIO in August 1939; see Chapter 4, note 33.

7. This struggle is rendered vividly in Jack Metzgar’s account of the rise of the CIO in the steel industry; see Metzgar, Striking Steel, 31–39.

8. The role of supervisors in the antiunion struggle was one of the first questions tackled by the Division of Economic Research. See “Role of Supervisors in Spreading Employer Views,” Research Memorandum 3, November 8, 1938, NLRB Archives, PCF, Former Chairmen, 1934–1970, RG 25, National Archives. For exemplary cases, see Matter of A. S. Abell Co., 5 NLRB 144 (1938); Matter of the Serrick Corporation, 8 NLRB 621 (1938); as well as Matter of Cooper, Wells and Co., 16 NLRB 27 (1939).

9. Matter of Ford Motor Co., 23 NLRB 342 (1940). See also the annual reports of the board on this question.

10. The bills were submitted during the 76th Congress and were the following: S. 1000 (Walsh), H.R. 4749 (Barden), H.R. 5231 (Hartley). They are analyzed and summarized in an NLRB memorandum titled “Supervisory Employees,” drafted by the Legal Division and dated December 17, 1946, CMF, RG 25, National Archives, box 4.

11. “Board Report to the House Committee on H.R. 4749 and 5231,” 20–26, quoted in “Supervisory Employees,” sec. 4. For William Leiserson’s testimony in Congress on that issue, see Chapter 3, note 65.

12. See the presentation given by William Leiserson during a meeting with union leaders before the board handed down its decision in the Union Collieries case: “What’s Evolving from Wartime Labor Relations,” undated, Leiserson Papers, “Speeches and Articles,” box 50; “Union Collieries, Oral Arguments at the Board,” March 24, 1942, 2, NLRB Archives, RG 25, National Archives, box 3091.

13. On the elimination of the Economic Research Division see Gross, “Economics, Politics and the Law.”

14. The vote was 258–129 in favor of amendments that expanded the definition of agricultural worker to include workers in food processing and protected employer free speech during elections. As for the preamble of the act, it would have been rewritten and stripped of its probargaining bias. See Dubofsky, State and Labor, 154–161; and Gross, Reshaping of the National Labor Relations Board, 85–187.

15. Led by the prominent jurist Roscoe Pound and by the American Bar Association, the controversy over the nature and accountability of the American administrative state was solved only in 1946 with the adoption of the American Procedures Act, which both specified and streamlined the procedures that should govern the development of administrative law. See Forbath, “Long Life,” 189–191; Morton Horwitz, The Transformation of American Labor Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 214, passim; as well as Reuel Schiller, “Saint George and the Dragon: Courts and the Development of the Administrative State in the Twentieth Century,” Journal of Policy History 17, no. 1 (2005): 110–124.

16. To the best of my knowledge, there is no full-scale account of this strike and of the role the UFS played in it. This paragraph relies on the following United Automobile Worker Journal articles: “CIO Smashes Chrysler,” October 4, 1939; “Chrysler Gets Demands,” October 11, 1939; Chrysler Workers Vote Strike,” October 18, 1939; “We Accept the Challenge!” October 8, 1939; “Back to Work Move Flops,” November 15, 1939. Like other union publications, the United Automobile Worker Journal is available at DOL. For my understanding of this strike, I have also relied on Steve Babson, Working Detroit: The Making of a Union Town (Detroit: Wayne State University Press, 1986), 99–102.

17. See the testimony of James Beyerley, Packard Appellate Case Files, RG 267, National Archives, box 4819, 472–473; Cross, “When Foremen Joined the CIO,” 280–281; and “Chrysler Says CIO Signs Auto Foremen,” New York Times, November 22, 1939.

18. On this question, see the previous chapter, and Lichtenstein, Walter Reuther, 108–109. Lichtenstein shows that General Motors avoided the decline of foremen’s authority because it managed to limit the number of committeemen to 1 for every 400 workers. By contrast, at Chrysler the ratio was 1 for every 30. On the contentious nature of the strike, see “Chrysler Foremen Cause a New Crisis,” New York Times, November 23, 1939; and “Chrysler Asks CIO to End Bid to Foremen,” New York Times, November 24, 1939.

19. Leiserson, “What’s Evolving from Wartime Labor Relations,” 20. On R. J. Thomas’s position, see UAW-IEB Meetings, April 4, 1939, 2, UAW Collection, Walter Reuther Library, Wayne State University, box 2; and CIO Executive Board Proceedings, April 12, 1945, during which Thomas mentioned this event.

20. John Brophy to J. R. Bell, August 20, 1940, CIO Archives, CUA, box 64, file 33.

21. In a series of cases, the board found against employers who had fired foremen for joining a labor union. Indeed, whenever all the unions involved in the representation election agreed to request it, the board accepted to include foremen and supervisors in the collective bargaining unit. In 1938, the board provided the following explanation: “Supervisory employees although eligible for membership in competing labor organizations, are forbidden by the Act, in their capacity as the employer’s agent, to interfere in the selection of employee bargaining representatives, yet there need be no conflict by reason of their dual status. It is perfectly consistent for supervisory employees to belong to labor organizations and yet be prohibited from conduct permitted to non supervisory personnel.” See Matter of Tennessee Copper Co., 9 NLRB 117 (1938), 119. Otherwise the best guide to these cases is the fourth annual report of the board, see National Labor Relations Board, Fourth Annual Report For the Fiscal Year Ended June 30, 1939 (Washington DC: GPO, 1940) 93–97. In 1939, a federal court sustained the board’s policy to construe foremen as both “employers” and “employees,” noting that “a foreman, in his relation to his employer, is an employee, while in his relation to the laborers he is the representative of the employer and within section 2(2) of the Act. Nothing in the Act excepts foremen from its benefits nor from protection against discrimination nor unfair labor practices of the master.”NLRB v. Skinner and Kennedy Stationery Co., 113 F. (2nd) 667 (1940), 671.

22. Leiserson, “What’s Evolving from Wartime Labor Relations,” 20.

23. Oral history interview of David Levison with Frank Bowen, December 24, 1947, as quoted in Levison, “Wartime Unionization of Foremen,” 156. Oral history with Carl Brown, November 13, 1974, p. 12, Wayne State Library.

24. The union was created in response to the layoff of a mine boss who had tried to convince the company to reorganize the working week. See Levison, “Wartime Unionization of Foremen,” 328–331; and Matter of Union Collieries Coal Company, Oakmont, Pennsylvania, 41 NLRB 174 (1942).

25. Report of Field Examiner Henry C. Clay, December 5, 1941, 4, and Regional Director Report, November 3, 1941 1–3. Both reports can be found in Matter of Union Collieries, case VI-R-400, RG 25, National Archives, boxes 5449–5452. For the statement, examination, and cross examination of Frank Benny, the company’s attorney, see ibid., 88–142.

26. Matter of Godchaux Sugars Inc., 44 NLRB 172 (1942).

27. Leiserson, “What’s Evolving from Wartime Labor Relations,” 24; Harry Millis, dissenting opinion in Maryland Drydock, 749.

28. Leiserson, “What’s Evolving from Wartime Labor Relations,” 24.

29. National Labor Relations Board, Seventh Annual Report For the Fiscal Year Ended June 30, 1942 (Washington DC: GPO, 1943) 63.

30. Harry Millis, dissenting opinion in Maryland Drydock, 749.

31. Ibid., 750.

32. As Eric Foner has noted, “The New Deal recast the idea of freedom by linking it to the expanding power of the National State.” Foner, Story of American Freedom, 196. William Leiserson to John Fitch, January 28, 1936, Leiserson Papers, “Fitch” folder, box 14.

33. Matter of Godchaux Sugars, 877. See also Maryland Drydock, 746. Leiserson, “What’s Evolving from Wartime Labor Relations,” 23; William Leiserson to Robert Wagner, July 9, 1945, Wagner Archives, box 1, “labor.”

34. Gerard Reilly, dissenting opinion in Union Collieries, 970–972.

35. Matter of Union Collieries, VI-R-400, brief for Mine Union Officials of America, 5–6, RG 25, National Archives, box 2967.

36. See note 39 in this chapter.

37. Bills Relating to the Full Utilization of Manpower, Hearings on H.R. 2239, H.R. 1742 and H.R. 992 Before the House Military Affairs Committee, 78th Congress, 1943, 833.

38. Joseph Slater, Government Employee Unions, the Law and the State, 1900–1962 (Ithaca: Cornell University Press, 2004), 158–192. See also Joseph A. McCartin, “Bringing the State’s Workers In: Time to Rectify an Imbalanced US Labor Historiography,” Labor History 47, no. 1 (2006): 73–94.

39. Again I provide here only a few examples: Matter of Chrysler Corporation, 1 NLRB 1964 (design engineers); Matter of General Motors, 36 NLRB 439 (shift engineers); Matter of Chrysler Corporation, 36 NLRB 593 (plant guards). The CIO’s forays inside the white-collar world are told in Benjamin Stolberg, The Story of the CIO (New York: Viking Press, 1938), 245–267. Michael Denning provides a useful contextualization of it in his fascinating The Cultural Front: The Laboring of American Culture in the Twentieth Century (New York: Verso, 1998), in which he argues that white-collar workers were essential to the building of a popular front historical bloc. See also Irving Berstein, The Turbulent Years: A History of the American Worker, 1933–1941 (Chicago: Haymarket Books, 2010), chap. 4.

40. See Castel, Les metamorphoses, 519–620.

41. The invention of this new social category is analyzed in Luc Boltanski, Les cadres; see also Marc Descotes and Jean-Louis Robert, Clés pour une histoire du syndicalisme cadre (Paris: Les Editions Ouvrières, 1984), as well as Guy Groux, Les cadres (Paris: La Découverte, 1984) and René Mouriaux, “Le syndicalisme des ingénieurs et cadres: Histoire et historiographies,” Culture Technique 12 (1984): 221–227.

42. Boltanski, Les cadres, 66–82, 155–179.

43. William T. Gossett, counsel to Ford Motor Co., as quoted in Virginia Seitz, “Legal, Legislative, and Managerial Responses to the Organization of Supervisory Employees,” American Journal of Legal History 28 (1984): 199–243, 217.

44. Matter of Union Collieries, VI-R-400, brief for Union Collieries Company, 1–5, RG 25, National Archives, box 2967.

45. “Brief of Edward Burke on Behalf of the Southern Coal Producers Association,” petition for a rehearing in the Union Collieries Case, R-3464, NLRB Archives, RG 25, National Archives, box 2967.

46. “Management, like labor, must have faithful agents—if we are to produce goods competitively and in such large quantities that people can buy them at low cost.” House report 245, reprinted in Legislative History of the National Labor Relations Act, 307.

47. Gross, however, does note that the amount of criticism leveled at the board decreased significantly after 1940. See Reshaping of the National Labor Relations Board, 226–240.

48. Harry M. Millis, “A Statement Concerning the Foremen Issue,” undated document (but drafted between the release of the Union Collieries and Maryland decisions) in the “Supervisory Employees” file, CMF, RG 25, box 2. For William Leiserson’s own position, see “Union Collieries, Oral Arguments.”

49. Business Week, January–March 1943, 38, as quoted in Larrowe, “Meteor on the Industrial Relations Horizon,” 277. Paul Herzog, who was to be appointed to the board in 1945, later explained, “Mr. Roosevelt nominated him on the theory that he would make the board look fairly conservative, having been in the lumber business.” Oral history interview with Paul Herzog, July 1975, 17, Kheel Center, Cornell University.

50. Gerald Reilly, In the Matter of Maryland Drydock Company and Local No. 31 of the Industrial Union or Marine and Shipbuilding Workers of America, 49 NLRB 105, 740. Reilly was quoting from Justice Cardozo’s opinion in Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545 (1928).

51. Mervin Bachman, “Suggested Approach to the Question Whether the Discharge of a Supervisory Employee Constitutes an Unfair Labor Practice,” April 25, 1944, “Supervisory Employees” file, CMF, RG 25, box 2.

52. On Mervin Bachman, see the obituary published in the Chicago Tribune on August 29, 2005, by Barbara Sherlock. More is known about Farmer; see especially James Gross, Broken Promise: The Subversion of U.S. Labor Policy (Philadelphia: Temple University Press, 1998), 95–98.

53. Guy Farmer, “Supervisory Employees,” April 14, 1944, in NLRB Archives, CMF, “Supervisory Employees” file, RG 25, National Archives, box 2. Mervin Bachman, “Suggested Approach to the Question Whether the Discharge of a Supervisory Employee Constitutes an Unfair Labor Practice,” April 25, 1944, 2. As Mervin Bachman explained, “To hold at this date that Congress… intended to relegate to an inferior these basic guarantees and to make their availability to employees…. fundamental rights.” A native of Chicago, Bachman (1915–2005) was a typical New Deal lawyer, graduating from Harvard Law School.

54. Matter of Soss Manufacturing, 56 NLRB 348, Matter of Republic Steel, 56 NLRB 348. The two cases were decided together. The board also noted that the right of foremen to protection was “not an unqualified one,” but was “subordinate to the organizational rights and freedom of rank and file employees and the need of an employer to maintain his neutrality”; 353–354.

55. Jesse Frieden, “Opinion on the Board’s Jurisdiction over Labor Disputes Involving Supervisory Employees,” March 30, 1944, NWLB Archives, RG 202, National Archives, box 585. On the NWLB, see Andrew Workman, “Creating the National War Labor Board: Franklin Roosevelt and the Politics of State Building in the Early 1940s,” Journal of Policy History 12, no. 2 (2000): 233–264; and his dissertation, “Creating the Center” (PhD diss., University of North Carolina, 1993); and Lichtenstein, Labor’s War at Home.

56. Report and Findings of the National War Labor Board, 16.

57. Ibid., 41.

58. There is no available archival material to account for this evolution (John Houston has left no personal papers). This paragraph is based on the memorandum sent by Gerard D. Reilly to John Houston and Harry Millis, December 16, 1944, available in Matter of Packard Motor Co., 7-R-1884, informal file, NLRB Archives, RG 25, which is itself a response to a memorandum sent by Houston in which he announced his decision to change his position on foremen. Houston’s memorandum, however, was not filed. On his gradual evolution, see the oral history interview conducted by the Kheel Center with Paul Herzog, 34–35.

59. Frank Bloom, “Memorandum Report,” in Matter of Packard Motor Co., 7-R-1884, informal file, NLRB Archives, RG 25. Reilly deplored Bloom’s influence on Houston. See James Gross, Reshaping of the National Labor Relations Board, 246.

60. Packard Motor Company, 61 NLRB 3, 10. Millis and Houston also noted, “We cannot shut our eyes to these developments since the decision in the Maryland Drydock case…. To continue to deny such employees as a class the bargaining rights guaranteed by the Act would be to ignore the clear economic facts and invite further industrial strife—a state of affairs which the Nation can ill afford at this time which the Act was designed to mitigate.” Packard Motor Company, 14, 21.

61. 61 NLRB 3, 25.

62. Packard Motor Company, 61 NLRB 204, 216. (This is the second Packard decision, in which the NLRB found against the company, which refused to bargain with the FAA after it won the election and was certified as an appropriate bargaining unit).

63. “Peace at Any Price,” Detroit Free Press, March 28, 1945.

64. Packard Co. v. Labor Board, 330 U.S. 485 (1947).

65. Aaron Levenstein, Labor Today and Tomorrow (New York: Knopf 1946). On Walter Reuther’s proposal for a kind of corporate capitalism, see Lichtenstein, Walter Reuther; Brinkley, End of Reform; Adolph Berle and Gardiner Means, The Modern Corporation and Private Property (1932; repr., New Brunswick, N.J.: Transaction, 1991). Packard Co. v. Labor Board, 494–500.

66. On this question, see Wolf, Selling Free Enterprise; and Kim Philips Fein, Invisible Hands: The Making of the Conservative Movement from the New Deal to Reagan (New York: Norton, 2009).

67. On this charter, see the CIO Executive Board meeting of April 12, 1945, in the George Meany Archives. The AFL was no part of it and bitterly criticized it. A good example of the ignorance of the foremen’s issue in analyses of the antilabor bills introduced in Congress after 1946 is Philip Murray, “A Message to the Membership of the CIO and All Other Progressive Americans,” September 10, 1945, 43, Legal Department, CIO archives, CUA, box 9.

68. See Gilbert Gall, Pursuing Justice: Lee Pressman, the New Deal and the CIO (Albany: State University of New York Press, 1999), 208. See also Irving Richter’s memoir, Labor Struggles: A Participant’s View (New York: Cambridge 1994).

69. “Statement of the Secretary of Labor Before the Senate Committee on Education and Labor on H.R. 4908,” February 25, 1946, Lewis Schwellenbach Collection, RG 174, National Archives, box 4; Clark Clifford, “Points,” in Clark Clifford Papers, “Case Bill, Miscellaneous” file, Truman Library, box 6. “Veto of Case Bill,” http://www.presidency.ucsb.edu-ws/?pid-12414.

70. Lewis Schwellenbach to Harry Truman, June 4, 1946, 6, Lewis Schwellenbach Papers, RG 174, National Archives, box 4.

71. House Report 245, 80th Congress, 1st Session (1947), reprinted in Legislative History of the National Labor Relations Act, 305–308. For Truman’s veto speech, see note 69.

72. Senate Report 105, 80th Congress, 1st Session (1947), reprinted in Legislative History of the National Labor Relations Act, 411.

73. 29 U.S.C. §152 (11).

74. Robert H. Keys to Walter Reuther, June 24, 1947, Walter Reuther Collection, Wayne State University Archives, box 96, folder 96-11.

75. For UAW leaders’ statements in favor of the rights of foremen, see UAW-IEB minutes, January 22–29, 1945, 150 (adopting a motion to send to the press and the NLRB a statement urging the NLRB to protect foremen’s organizing rights), and UAW-IEB minutes, October 22–30, 1943, 62 (motion adopted to support foremen in their fight).

76. UAW-IEB minutes, April 16–22, 1945, 11, 58–59. The foremen’s question was broached by the IEB after an affiliation request had been issued by foremen at the Wright Plant in Paterson.

77. UAW-IEB minutes, September 10–18, 1945, UAW-IEB Collection, Wayne State Library, 64–67: “Secretary Addes explained to the committee that the Foremen’s picket line was not meant for the production workers… and to say that because the foremen, office workers, or other groups establish a picket line the production workers shall not cross it is tantamount to having an outside organization dictate terms of policy to the UAW.” The same views were expressed once again in April 1947: see UAW-IEB minutes, April 22, 1947, 163.

78. UAW-IEB minutes, April 4, 1939, 2. R. J. Thomas notably dismissed the FAA as a “company union”; see UAW-IEB minutes, March 1–10, 1943, 109; UAW-IEB minutes, October 22–30, 1943, 62. In 1943, during the hearings held in Congress on the foremen’s issue, Richard Frankensteen clearly expressed his opposition to allowing foremen in the UAW: “I would not trust them to speak for the interests of the people I represent. I think they have their own problems”; Hearings Before the Committee on Military Affairs, House of Representatives, 78th Congress, 1943, 458. Labor leaders, however, did not speak in one voice. Unlike Frankensteen, Lee Pressman would not say whether the CIO would, later on, take foremen on; see 299–327.

79. In fact, the social definition of the American worker as a male blue-collar manual worker would remain a substantial limitation on American unions. Less than twenty-five years later, UAW leaders once again intoned a restrictive tune when they refused to support a strike of clerical workers at GM in 1971. Like foremen in the 1940s, the women who energized the strike were seen as a hindrance and a nuisance, and automobile workers readily walked through their picket lines. See Cowie, Stayin’ Alive, 64.

80. This element in the FAA’s identity is emphasized by Carl Brown in the oral history interview with Howell Harris on November 13, 1974, Wayne State University Archives of Labor and Urban Affairs.

81. UAW-IEB minutes, extraordinary session, July 1, 1947, 8. According to R. J. Thomas, “About a year ago… Murray called Keys to discuss with him coming in with the CIO, and at that time Keys refused.” In his memoirs, Irving Richter mentions that in the wake of the Packard decision in January 1945, the CIO anticipated the affiliation of the FAA; see Irving Richter, Labor’s Struggles, 1945–1950 (New York: Cambridge University Press, 1994), 46.

82. UAW-IEB minutes, June 9–13, 1947, 8.

83. UAW-IEB minutes, extraordinary session, July 1, 1947, 1–28.

84. Ibid., 3, 8.

85. Ibid. See also Lichtenstein, Walter Reuther, 263–264; and Levison, “Wartime Unionization of Foremen,” 302–306.

86. Levison, “Wartime Unionization of Foremen,” 308–316. Then the UAW leaders once again debated the possibility of a change in the union policy, but nothing significant was done; see UAW-IEB minutes, July 9, 1947, 5–12.

87. These changes are analyzed at greater length by Seitz, on whom this development relies, in “Legal, Legislative, and Managerial Responses,” 235–236.

88. Robert Korstad and Nelson Lichtenstein, “Opportunities Found and Lost,” Journal of American History 75, no. 3 (December 1988): 786–811.

89. I thank Michael Kazin for pointing me to this useful concept.

Chapter 6. Loyalty Ascendant

1. NLRB v. Bell Aerospace, Co., 416 U.S. 267 (1974), 269. “Excerpts from Official Report of Proceedings Before the National Labor Relations Board,” August 28, 1970, 79, records of the Supreme Court of the United States, RG 267, National Archives, box 635 (NLRB v. Bell Aerospace) (hereafter NLRB v. Bell Aerospace Supreme Court file). This case has been discussed in a number of legal articles. See especially George Feldman, “Workplace Power and Collective Activity: The Supervisory and Managerial Exclusions in Labor Law,” Arizona Law Review 37, no. 3 (Summer 1995): 525–562; David Rabban, “Distinguishing Excluded Managers from Covered Professionals Under the NLRA,” Columbia Law Review 89, no. 8 (December 1989): 1776–1855; and Ben M. Germana, “Protecting Managerial Employees Under the NLRA,” Columbia Law Review 91, no. 2 (March 1991): 405–429. My goal here is to trace the political history of this case. On the need to study the legal history of the postwar administrative state, see Reuel Schiller, “The Administrative State, Front and Center: Studying Law and Administration in Postwar America,” Law and History Review 26, no. 2 (Summer 2008): 415–427.

2. On the development of the Sunbelt, see Bruce Schulman, From Cotton Belt to Sunbelt: Federal Policy, Economic Development, and the Transformation of the South 1938–1980 (New York: Oxford University Press, 1991). On the rise of conservatism in that area, see Rick Perlstein, Before the Storm: Barry Goldwater and the Unmaking of the American Consensus (New York: Hill and Wang, 2002); Matthew Dallek, The Right Moment: Ronald Reagan’s First Victory and the Decisive Turning Point in American Politics (New York: Free Press, 2000); and Elizabeth Tandy Shermer, Sunbelt Capitalism (Philadelphia: University of Pennsylvania Press, 2013).

3. Letter of Ken Bannon to Joe Ferraro, “Amalgamated Local 1286 Negotiations,” June 8, 1976, UAW-TOP Collection, UAW-CULMA, box 26, file 33.

4. Carl D. Snyder, The UAW and White Collar Unionism (Urbana: University of Illinois Press, 1974), 41.

5. On Drucker, see Waring, Taylorism Transformed, 85; Nils Gilman, “The Prophet of Post-Fordism: Peter F. Drucker and the Legitimation of the Corporation,” in American Capitalism, 109–134; Daniel Bell, The Coming of Post-Industrial Society (New York: Free Press, 1973). In France, the idea was advanced, albeit in a more pessimistic cast, by Alain Touraine, La société post-industrielle, naissance d’une société (Paris: Denoel, 1969). On the history of postindustrialist theory, see Howard Brick, Age of Contradiction: American Thought and Culture in the 1960s (Ithaca: Cornell University Press, 1998), 54–57, and “Optimism of the Mind: Imagining Post-industrial Society in the 1960s and 1970s,” American Quarterly 44 (September 1992): 348–380.

6. Historians have long called for studies highlighting the paths not taken in political history. See Julian Zelizer, “Clio’s Lost Tribe: Public Policy History Since 1978,” Journal of Policy History 12, no. 3 (2000): 369–394, and Joseph A. McCartin, “A Wagner Act for Public Employees: Labor’s Deferred Dream and the Rise of Conservatism,” Journal of American History 95, no. 1 (June 2008): 123–148.

7. The following description of the work of the procurement buyers is based on the records of the investigation led by NLRB examiners in Buffalo. This type of source raises an obvious methodological question, as it was the very nature of the work done by the buyers that was at stake in the investigations. Each party to the trial thus sought to provide a depiction of the buyers’ work that would justify classifying them as either “employees” or “managers.” I have sought to offset this bias by using only the elements that figured in both the buyers’ and the top managers’ description of the buyers’ work.

8. “Excerpts from Official Report of Proceedings Before the National Labor Relations Board,” NLRB v. Bell Aerospace, Supreme Court file, 38–39, 258–260.

9. Ibid., 49–50, 80.

10. Ibid., 39–40.

11. See Hecksher, New Unionism, 62–71.

12. See Waring, Taylorism Transformed, 88–89; Marina Angel, “Professionals and Unionization,” Minnesota Law Review 66 (1982): 383–457. See Ruth Milkman, Farewell to the Factory (Berkeley: University of California Press, 1997), for an analysis showing that even if workers were well paid in the 1970s, they still hated factory work for its debilitating aspects.

13. This paragraph relies heavily on Waring, Taylorism Transformed, 84–88. On the links between the new unionism and Taylorism, see Chapter 4.

14. “Excerpts from Official Report of Proceedings Before the National Labor Relations Board,” 72–75, 107–108, 255–256. Letter from J. J. Kelly, Bell Aerospace vice-president, to John Miranda, president of Local UAW 1286, August 14, 1972, UAW-CUMLA, box 18, folder 8. Waring, Taylorism Transformed, 78–73; see also Hecksher, New Unionism, 85–113.

15. “Excerpts from Official Report of Proceedings Before the National Labor Relations Board,” NLRB v. Bell Aerospace, Supreme Court file, 20, 36, 45–48.

16. “Reply Brief for Petitioner,” 10, NLRB v. Bell Aerospace, Supreme Court file.

17. In Company Men: White Collar Life and Corporate Cultures in Los Angeles, 1892–1941 (Baltimore: Johns Hopkins University Press, 2000), Clark Davis argues that the logic of security was already a matter of importance to white-collar employees before the Great Depression.

18. “Excerpts from Official Report of Proceedings Before the National Labor Relations Board,” 57, 139–143. On the divided welfare system, see Klein, For All These Rights.

19. Matter of Ford Motor Company, 66 NLRB 1317 (1946), 1322.

20. 29 U.S.C. §152 (11).

21. 29 U.S.C. § 152 (12).

22. Matter of New England Telephone, 90 NLRB 639 (1950). The share of supervisory employees increased from 12 percent in 1948 to 16 percent in 1960 and to 19 percent in 1980; see David M. Gordon, Fat and Mean: The Corporate Squeeze of Working Americans and the Myth of Managerial Downsizing (New York: Free Press, 1996), 33–60, 47. None of this is to say that this struggle over definition was the only form of opposition between labor and corporate America. Strikes are an equally important element of this story, as Metzgar argues in Striking Steel. The idea of the “labor-management accord,” once a staple of the historiography, is fully challenged in Lichtenstein, State of the Union, 98–140.

23. Matter of Eastern Camera and Photo Corporation, 140 NLRB 569 (1963).

24. Matter of Westinghouse Electric Corp., 113 NLRB 337 (1955), 339: “While manufacturing engineers make recommendations on matters which are of great importance to management, that factor is usually present in the work of all professional employees, and does not in and of itself make them part of management so as to preclude their inclusion in a profession al unit.”

25. Special Task Force, Work in America, as quoted in Waring, Taylorism Transformed, 132.

26. Sylvester Petro, The Labor Policy of the Free Society (New York: Ronald Press, 1957), and The Kohler Strike (Boston: Western Islands, 1961). Gross, Broken Promise, 98–99. On Petro, see Joseph A. McCartin and Jean-Christian Vinel, “Compulsory Unionism: Sylvester Petro and the Rise of an Anti-Union Idea,” in The Right and Labor: History, Ideology, Imagination, ed. Nelson Lichtenstein and Elizabeth Tandy Shermer (Philadelphia: University of Pennsylvania Press, 2012), 226–251.

27. David Stebenne, Arthur J. Goldberg: New Deal Liberal (New York: Oxford University Press, 1996), 313. On the role of James Landis, see oral history interview with Frank McCulloch, April 28, 1967, John F. Kennedy Oral History Collection, John F. Kennedy Presidential Library, 12, and Gross, Broken Promise, 146, and Chapter 3 of this book. On public-sector unionism see McCartin, “Wagner Act for Public Employees.”

28. On the modern presidency, see Sidney Milkis, The President and the Parties (New York: Oxford University Press, 1993).

29. Oral history interview with Gerald Brown (1987), 1–25, collection 5843, Kheel Center, Cornell University.

30. Oral history interview with Howard Jenkins (1988), 1–5, collection 5843, Kheel Center, Cornell University.

31. Oral history interview with Sam Zagoria (1998), 1–8, collection 5843, Kheel Center, Cornell University.

32. See Schatz, “From Commons to Dunlop,” 87–112.

33. Gerald Brown, “Collective Bargaining and the NLRB in the 1970s,” 9 (speech, Bowling Green State University, April 28, 1971, 1964, collection 4186, Kheel Center, Cornell University, box 5.

34. Oral history interview with Frank McCulloch (1989), collection 5843,, Kheel Center, Cornell University, 34, 136–137, my emphasis.

35. Matter of Plochman Harrison-Cherry Lane Foods, 140 NLRB 11. One finds an equally rosy picture of the standard of living of the community employed by Kohler company in Sylvester Petro, Kohler Strike, 1–4.

36. Richard S. Street, “Poverty in the Valley of Plenty: The National Farm Labor Union, DiGiorgio Farms, and the Suppression of Documentary Photography in California, 1947–1966,” Labor History 48, no. 1 (February 2007): 25–48.

37. “The problems of collective bargaining coming before the Labor Board merely reflect the state of the technology and the current problems of the changing society in which all of us live…. The process of collective bargaining is bound together by the same values which hold our society together, and an institution which does not adapt to changing conditions dies or becomes useless.” Brown, “Collective Bargaining and the NLRB,” 7.

38. Gerald Brown, “An Administrative Agency in a Changing World” (address, Washington University, Saint Louis, Mo., January 29, 1964), collection 4186, box 5.

39. See Lichtenstein, State of the Union, 168. On C. Wright Mills, see Mattson, Intellectuals in Action, 43–96.

40. The board’s new decision was upheld by the Supreme Court in 1964; see Fibreboard Paper Products Corp. v. Labor Board, 379 U.S. 203 (1964).

41. See Jefferson Cowie, Capital Moves: RCA’s Seventy Year Quest for Cheap Labor (Ithaca: Cornell University Press, 1999).

42. Oral history interview with Frank McCulloch (1989). “We failed to persuade the management community that the purpose of the statute was socially valuable,” McCulloch recalled. “In fact, the more I preached about that in my speeches, the more I had the feeling that they thought I was biased toward unions. I tried to tell them that I was biased toward the statute, but this didn’t wash. And our numerous efforts to persuade the management community that this was a viable kind of operation—of labor management relations in a democratic community—in large part failed,” 12–14, 12–13. On J. P. Stevens, see Timothy Minchin, Don’t Sleep with the Stevens: The J. P. Stevens Campaign and the Struggle to Organize the South, 1963–1980 (Gainesville: University Press of Florida, 2005).

43. Matter of Hughes Tool, 147 NLRB 1573. The history of this case is traced by Sophia Z. Lee, in “Hotspots in a Cold War: The NAACP’s Postwar Workplace Constitutionalism, 1948–1964,” Law and History Review 26, no. 2 (Summer 2008): 328–377. The lineage between the NLRB and the EEOC is analyzed in Hugh Graham, Civil Rights and the Presidency (New York: Oxford University Press, 1992), 71–72. As McCulloch explained, however, he and member Fanning believed that this was stretching the statute and that thereafter board members felt too vulnerable politically to take on both racist and antiunion practices and focused on the protection of the right to organize; see the oral history interview with Frank McCulloch (1989), 86–90. This move away from the question of racial equality reveals how entrenched the separation between labor law and individual rights had become. On this question see Reuel Schiller, “From Group Rights to Individual Liberties: Post-War Labor Law, Liberalism, and the Waning of Union Strength,” Berkeley Journal of Employment and Labor Law 20, no. 1 (Summer 1999): 1–73.

44. Brown, “Collective Bargaining and the NLRB,” 10.

45. Oral History with Sam Zagoria (1998), 14.

46. Brown, “Administrative Agency,” 14.

47. See Irving Bernstein, Turbulent Years: The History of the American Worker, 1933–1941 (Boston: Houghton Mifflin, 1969). On the United Financial Employees Union, see “Battle of the Citadel,” Time, April 28, 1947, http://www.time.com/. On the ESA, see Collective Bargaining v. Collective Action (Washington, D.C.: National Society of Professional Engineers, 1972). On teachers, see Marjorie Murphy, Blackboard Unions: The AFT and the NEA, 1900–1980 (Ithaca: Cornell University Press, 1980). On the engineers in the electrical industry, see Geoffrey Latta, “Union Organization Among Engineers: A Current Assessment,” Industrial Labor Relations Review 35, no. 1 (October 1981): 29–42. On public-sector unions, see Joseph A. McCartin, “Turnabout Years: Public Sector Unionism and the Fiscal Crisis,” in Rightward Bound: Making America Conservative in the 1970s, ed. Bruce Schulman and Julian E. Zelizer (Cambridge, Mass.: Harvard University Press, 2008), 210–226; and Daniel J. Opler, For All White Collar Workers: The Possibilities of Radicalism in New York City’s Department Store Unions, 1934–1953 (Columbus: Ohio State University Press, 2007), emphasizes the negative impact of anticommunism.

48. These figures come from Benjamin Solomon and Robert E. Burns, “Unionization of White Collar Employees: Extent, Potential and Implications,” Journal of Business 36, no. 2 (April 1963): 141–165; Conference Board, “White Collar Unionization,” Studies in Personnel Policy 220 (1970).

49. The best illustration of this profound interest is the series “Studies in White Collar Unionism,” published in the 1950s by the Industrial Relations Center at the University of Chicago, and the various conferences touching on this topic, such as the 1960 conference at the University of Pennsylvania “Industrial Relations in the 1960s—Problems and Prospects,” which included several papers titled “White Collar Unionization”; Jack Barbash, “Unionizing the Professional Worker”; University of Pennsylvania, “Industrial Relations in the 1960s: Problems and Prospects” (conference proceedings, February 15, 1961), available at DOL. See also Bernard Goldstein, “Some Aspects of the Nature of Unionism Among Salaried Professionals in Industry,” American Sociological Review 20, no. 2 (April 1955): 199–205. Along with the booklets published by the NAM, see the issues of Studies in Personnel Policies published by the NICB on this topic: “White Collar Unionization” (no. 101), “Unionization Among American Engineers” (no. 105), for example. The survey showing that nearly 50 percent of middle managers favored a change in the laws to compel employers to bargain with them was analyzed in Alfred T. DeMaria et al., Manager Unions? (New York: American Management Association, January 1973). In the 1970s, managerial fears of white-collar and managerial unionism were evident in Erwin Stanton, “White Collar Unionization: New Challenge to Management,” Personnel Journal (February 1972): 118–139; “Would Foremen Unionize?” Personnel Journal (November 1970): 926–931.

50. “Summary Report and Conclusion of IUD Seminar, Collective Bargaining Problems of Professional and Technical Workers in Industry” (Industrial Union Department, 1960), DOL, 2; “Resolution on White Collar Organizing,” UAW-TOP Collection, UAW-CUMLA, box 62, file 11. See also Solomon Barkin, The Decline of the Labor Movement and What Can Be Done About It (Santa Barbara: Center for the Study of Democratic Institutions, 1961).

51. See Paddy Riley, “Clark Kerr: From Industrial to Knowledge Economy,” in Lichtenstein, American Capitalism, 80–82.

52. David G. Moore and Richard Renck, “The Professional Employee in Industry,” Journal of Business 28, no. 1 (January 1955): 58–66, 66.

53. Braverman, of course, was quite critical of the industrial pluralists; Riley, “Clark Kerr,” 72–87; Bernard Goldstein, “Unions and the Professional Employee,” Journal of Business 27, no. 4 (1954): 276–284; Goldstein, “Some Aspects of the Nature of Unionism”; Robert K. Burns, “The Comparative Position of Manual and White Collar Employees,” Journal of Business 27 (October 1954): 257. John Dunlop et al., Industrialism and Industrial Man (Cambridge, Mass.: Harvard University Press, 1960), 7–8; Simon Marcson, The Scientist in American Industry (Princeton: Princeton University Press, 1960); Lee E. Danielson, “Management’s Relations with Engineers and Scientists” (1957 proceedings, Industrial Relations Research Association); Jack Barbash, “Unionizing the Professional Worker” (University of Pennsylvania, November 18, 1960), 12–17, available at DOL.

54. Testimony of Karl M. Ruppenthal, former vice president of the ALPA, (Industrial Relations in the 1960s conference, University of Pennsylvania, November 18, 1960), 23–31, available at the DOL; Ed Modes, The ALPA Story: A History and Study of the Background, Functions, and Organization of the Air Line Pilots Association, Intl (Chicago: ALPA, 1954), quoted in Barbash, “Organizing the Professional Worker,” 17.

55. Organization of Engineers and Scientists of America, Special Report Series, undated, quoted in Jack Barbash, “Organizing the Professional Worker,” 17.

56. Ibid.

57. Matter of North Arkansas Electric Corp., 168 NLRB 921 (1967).

58. Testimony of manager John Cochran, quoted in the opinion at 922.

59. James Gregory, American Exodus (New York: Oxford University Press, 1989). Notably, this culture was the seedbed of the giant Wal-Mart Corporation. See Nelson Lichtenstein, ed., Wal-Mart: The Face of Twentieth Century Capitalism (New York: Free Press, 2003).

60. Matter of North Arkansas Electric Corp., 922.

61. Ibid., 924, my emphasis.

62. Ibid., 925.

63. NLRB v. North Arkansas Electric Cooperative, 412 F. 2nd 324 (1969), 1475.

64. National Labor Relations Board, Thirty-Sixth Annual Report of the National Labor Relations Board (Washington, D.C.: GPO, 1970), 40.

65. See Atleson, Values and Assumptions; Katherine van Wezel Stone, “The Post-War Paradigm in American Labor Law,” Yale Law Review 90 (June 1981): 1509–80; Tomlins, State and the Unions. Ronald Schatz provides a good analysis of this literature in “Into the Twilight Zone: The Law and the American Industrial Relations System since the New Deal,” International Labor and Working Class History 36 (Fall 1989): 51–60. Among the dissenters are Clark, Like Night and Day; and Metzgar, Striking Steel. See also Vinel, “What Can the Critical Synthesis Teach Us?”

66. John Dunlop, “The Social Utility of Collective Bargaining,” quoted in Hecksher, New Unionism, 15.

67. Lichtenstein, State of the Union, 149. According to this theory (pluralism), the American political system ensured that no group dominated while every minority had the opportunity to make itself heard. See Robert Dahl, Preface to Democratic Society (Chicago: University of Chicago Press, 1956); and Robert Dahl, Who Governs? (New Haven: Yale University Press, 1961).

68. Howard Brick, Daniel Bell and the Decline of Intellectual Radicalism (Madison: University of Wisconsin Press, 1986), 164–171; Barkin, Decline of the Labor; Paul Jacobs, The State of the Unions (New York: Atheneum, 1963); Paul E. Sultan, The Disenchanted Unionist (New York: Harper and Row, 1963); B. J. Widick, Labor Today (Boston: Houghton Mifflin, 1964).

69. Arthur Ross, “Labor Organizations and the Labor Movement in Advanced Industrial Society,” Virginia Law Review 50, no. 8 (December 1964): 1359–1385, 1362.

70. Clark Kerr et al., Industrialism and the Industrial Man, 292–293, quoted in Riley, “Clark Kerr,” 84.

71. Michael Harrington, The Retail Clerks (New York: John Wiley, 1962); Ross, “Labor Organizations and the Labor Movement,” 1364; Goldstein, “Some Aspects of the Nature of Unionism,” 205.

72. “Your Needs Are Different,” TOP leaflet, 2 pages, UAW-TOP Collection, UAW-CULMA, box 61, folder 11; “Professionalism and Union Members,” draft of paper, UAW-TOP Collection, box 63, folder 49; “Emerick: Organizing Activities,” box 63, folder 34.

73. Oral history interview with Frank McCulloch (1989), 16, 138.

74. Brown, “Collective Bargaining and the NLRB,” 11; Oral history interview with Frank McCulloch (1989), 13.

75. Jack Barbash, “AFT Philosophy and the Professional,” UAW-TOP Collection, box 61, file 11.

76. Brown, “Collective Bargaining and the NLRB,” 11.

77. A good synthesis of these questions is Douglas T. Miller, On Our Own: Americans in the Sixties (Lexington, Mass.: Heath, 1996).

78. Riley, “Clark Kerr,” 79–80, 85. “I find it interesting that the ideas, practices and techniques developed in employer-employee bargaining have over-flowed to such disputes as between landlords and tenants, welfare recipients and the welfare agency, students and school administration. It may be that in the new environment, ‘collective bargaining’ will become so transformed as to require a new title.” Brown, “Collective Bargaining and the NLRB,” 9–10.

79. “A Union Target: The White Collar Worker,” Business Week, February 7, 1948, 88–91.

80. Jack Barbash, “Unionizing the Professional Worker,” 21.

81. See NAACP v. Alabama, 357 U.S. 449 (1958), and Gibson v. Florida Legislative Committee, 372 U.S. 539 (1963).

82. Peter G. Nash, “Brief for the NLRB,” 7, NLRB v. Bell Aerospace, Supreme Court file. ILGWU v. NLRB, 339 F.2d 116 (1964). See also “Recognition of a Staff Union of Business Agents Under the National Labor Relations Act,” Yale Law Journal 72, no. 5 (April 1963): 1076–1087.

83. Erwin Griswold, “Petition for Writ of Certiorari to the United States Court of Appeals for the Second Circuit,” 8, 18, NLRB v. Bell Aerospace, Supreme Court file. Harry Blackmun was a Nixon appointee, but he penned one of the greatest opinions in the tradition of liberal legalism in Roe v. Wade, 410 U.S. 113 (1973).

84. Lewis F. Powell, “Memorandum to the Conference” (March 12, 1974), Papers of Thurgood Marshall, Library of Congress, box 128, “NLRB Bell Aerospace” folder.

85. NLRB v. Bell Aerospace, 290.

86. Louis L. Jaffe, “The Illusion of the Ideal Administration,” Harvard Law Review 86, no. 7 (1973): 1182–1199; Theodore Lowi, The End of Liberalism (New York: Norton, 1969). On these issues, see the work of Reuel Schiller, “Reining in the Administrative State: WW2 and the Decline of Expert Administration,” in Total War and the Law: The American Home in Front of WW2, ed. Daniel Ernst and Victor Jew (Westport, Conn.: Praeger, 2002), 185–206.

87. National Society of Professional Engineers, In the Engineers’ Interest: Collective Bargaining vs. Collective Action, Report of the Task Force on Collective Bargaining (Washington, D.C.: NSPE 1973).

88. Report by Douglas Fraser, 1966, UAW-TOP Collection, box 62, file 11; Latta, “Union Organization Among Engineers,” 31.

89. Lewis F. Powell, “Attack of Free Enterprise System,” August 23, 1971, quoted in Michael Perelman, The Confiscation of American Prosperity: From Right-Wing Extremism and Economic Ideology to the Next Great Depression (New York: Palgrave Macmillan, 2005), 59.

90. None of this is to deny that Powell was a principled jurist. On the whole his career at the Court was that of a conservative moderate, which explains why the stakes in the Bork nomination were so high when he stepped down. See Henry J. Abraham, Justices and Presidents (New York: Oxford University Press, 1990).

91. William O’Douglas to Lewis Powell, March 12, 1974, Papers of Thurgood Marshall, Library of Congress, box 128.

92. On Douglas, see Brinkley, End of Reform, 63; Gary Gerstle, “The Protean Character of American Liberalism,” American Historical Review 99, no. 4 (October 1994): 1048; Dennis J. Hutchinson, “William Orville Douglas,” in The Oxford Companion to the Supreme Court, ed. Kermit Hall (New York: Oxford University Press, 1992), 233–235.

93. Proceedings of the Tenth Constitutional Convention of the CIO, November 22–26, 1948, 270, quoted in Nelson Lichtenstein, “The Eclipse of Social Democracy,” in The Rise and Fall of the New Deal Order, 1930–1980, ed. Stephen Fraser and Gary Gerstle (Princeton: Princeton University Press, 1989), 127.

94. NLRB v. Bell Aerospace, 278.

95. Here I am indebted to Gerald Friedman’s insightful analysis in Reigniting the Labor Movement, 34–40.

96. Brick, “Postcapitalist Vision,” 41; Marina Angel, “Professionals and Professionalization,” Minnesota Law Review 66 (1982): 406–410.

97. NLRB v. Yeshiva University, 447 U.S. 671 (1980).

98. Ibid., 686, 699–700.

99. Brown University, 342 NLRB 483 (2004) reversed an older ruling, according to which teaching assistants were “employees” within the framework of the Wagner Act: New York University, 332 NLRB 1205 (2000).

100. “Member Brown Sworn In for New Five-Year Term,” NLRB Bulletin, September 1966, 2, collection 4186.

101. Packard v. NLRB, 494–496, quoted by Powell in NLRB v. Bell Aerospace, 279.

102. Machinists v. Street, 367 U.S. 740 (1961), 776.

103. Letter from Joe Ferraro to Ken Bannon, “Amalgamated Local 1286 Negotiations,” June 8, 1976, UAW-TOP Collection, box 26, folder 33.

104. Louis Jackson and Robert Lewis, Winning NLRB Elections: Management’s Strategies and Preventive Programs (New York: Practicing Law Institute, 1972), quoted in Shawn Burton and Michael Hawkins, “Oakwood Care: How Textualism Saved the Supervisory Exemption,” University of Pennsylvania Journal of Labor and Employment Law 9, no. 1 (2006): 5.

Chapter 7. The Wages of Textualism

1. This description is based on the decision handed down by the Court in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001), as well as the research done on this case by Marley S. Weiss. See her “Kentucky River at the Intersection of Professional and Supervisory Status: Fertile Delta or Bermuda Triangle?” in Cooper and Fisk, Labor Law Stories, 354–397.

2. “Hospitals are the last bulwark in our society to retain authoritarian administration,” noted Theresa Wolfson on December 8, 1960, at the American Nurses Association Conference held at Cornell University, quoted in Daniel Kruger, “Bargaining and the Nursing Profession,” Monthly Labor Review 84 (July 1961): 699–705. On the history of nursing, see Barbara Melosh, The Physician’s Hand: Work Culture and Conflict in American Nursing (Philadelphia: Temple University Press, 1982); and David Brody, “The Job of Nursing,” Reviews in American History 12, no. 1 (March 1984): 115–118. On public employees, see Joseph A. McCartin, “Fire the Hell Out of Them,” Labor 2, no. 3 (2005): 67–92; as well as “Wagner Act for Public Workers.”

3. See Irving Bernstein, Turbulent Years, chap. 4.

4. See Melosh, Physician’s Hand, 198. Joel Seidman, “Nurses and Collective Bargaining,” Industrial and Labor Relations Review 23 (1969): 335 shows that the ANA avoided industrial relations terminology (see 341). Kruger, in “Bargaining and the Nursing Profession,” quotes an editorial in the American Nurses Association (ANA) official publication saying, “Collective bargaining is not to be confused with labor unionism. Collective Bargaining is used by many organizations other than labor unions.” See 700. Joni Ketter, A Seat at the Bargaining Table: 50 Years of Progress (Washington, D.C.: ANA, 1996) offers ANA’s own account of its history. On the notion of “security,” see Chapter 4 of this book.

5. Kruger, “Bargaining and the Nursing Profession,” 702; Ketter, Seat at the Bargaining Table, 1–9.

6. See Melosh, Physician’s Hand, on whom this paragraph relies.

7. Max D. Kossoris, “The San Francisco Bay Area 1966 Nurses’ Negotiations,” Monthly Labor Review 90, no. 6 (1967): 8–12.

8. Robert Zieger and Gilbert Gall, American Workers, American Unions, 3rd ed. (Baltimore: Johns Hopkins University Press, 2002), 209–214.

9. American Nurses Association, Summary of SNA Economic Security Activities (1967), quoted in Seidman, “Nurses and Collective Bargaining,” 343. On the Service Employees International Union (SEIU), see the testimony of Dr. Joseph Sergent, the president of the New York State Physicians Union, SEIU Local 682, Hearings of the Subcommittee on Labor of the U.S. Congress Senate Committee on Labor and Public Welfare, 93rd Congress, 1st Session, 58–62.

10. See John H. Fanning, “The National Labor Relations Act and the Role of the NLRB” (speech, Association of Labor Mediation Agencies, July 24, 1978), 4, on file with the Institute of Industrial Relations Library, University of California, Berkeley. According to the Wagner Act, the board’s jurisdiction is coextensive with the commerce clause in the constitution, which was interpreted very broadly after the l937 crisis. Historically, however, the board had refused to extend jurisdiction to cases involving businesses that did not have a minimal amount of dollar activity. In the case of for-profit hospitals, it was also the character of the activity that had led the board to consider that such hospitals were beyond the reach of the Wagner Act. The case in which the board changed this policy was Butte Medical Properties, 168 NLRB 266 (1967).

11. See “To Amend the National Labor Relations Act to Extend Its Coverage and Protection to Employees of Non Profit Hospitals and For Other Purposes,” in Hearings of the Subcommittee on Labor of the US Congress Senate Committee on Labor and Public Welfare on H.R. 11357, August 16 and September 6, 1972, 92nd Congress, 2nd Session. The bill was passed, but there was no Senate action on the bill beyond hearings. So there were hearings again in 1973, and only on May 7, 1974, did the Senate pass S. 3203, the final version of the companion bill (see 120 Congressional Record 13561). The final version of the House bill was H.R. 13678 (see 120 Congressional Record 15660). The law was signed by President Nixon on July 26, 1974. In the meantime hearings were held on intermediary bills, H.R. 1236 and S. 794.

At the Department of Labor library I found that all the hearings (i.e., those held by the 92nd and 93rd Congresses) had been compounded into one volume, under the title “To Amend the National Labor Relations Act to Extend Its Coverage and Protection to Employees of Non Profit Hospitals and For Other Purposes,” in Hearings of the Subcommittee on Labor of the U.S. Congress Senate Committee on Labor and Public Welfare on H.R. 11357, August 16 and September 6, 1972, 92nd Congress, 2nd Session (HD 5506 H65 A5). This is a bit confusing, since the hearings included H.R. 11357 but also the other versions of the bill, but it makes sense since the differences between them were minor. Moreover, the pagination adopted in this compilation is simple enough for the reader to find the statements that I am referring to. Hereafter, I refer to those hearings simply as Hearings of the Subcommittee.

12. Report of the U.S. Department of Labor sent to Harrison A. Williams, June 21, 1973, in Hearings of the Subcommittee, 92–95; Bureau of Labor Statistics, “Work Stoppages in Medical and Other Health Services,” 1962–1971, in Hearings of the Subcommittee, 150.

13. Letter from the Chamber of Commerce to the Subcommittee on Labor (Committee on Labor and the Public Welfare), August 31, 1973, reprinted in Hearings of the Subcommittee, 593; testimony of the American Hospital Association on S. 794, July 31, 1973, Hearings of the Subcommittee, 131–142.

14. See the testimony of George Hardy, international president, Service Employees International Union, August 16, 1972, in Hearings of the Subcommittee, 63–65; Mike McDermott, Local 399, August 16, 1972, 66–69. The Wagner Act preamble was inserted into Joseph Murphy’s testimony on S. 794, July 31, 1973, 48. See also the testimony of RN Bonnie Graczyk (for the American Nurses Association) on S. 794, July 31, 1973, saying that nurses were loath to strike and would not do it if there was a procedure allowing for “peaceful industrial relations,” 118.

15. Senate Report 93–766 on S. 3203, 93rd Congress, 2nd Session, April 2, 1974, 3.

16. See Senator Crankston’s remarks on May 2, 1974, 120 Congressional Record 12936–12938.

17. See the letter sent by Secretary of Labor James Hodgson to Perkins, the chairman of the House Education and Labor Committee, on July 19, 1972, quoted by George Hardy, Hearings of the Subcommittee, 65. The House report also suggested that it was the decision to exempt nonprofit hospitals from the NLRA in 1947 that had led to labor conflicts in this industry; see House Report 1051, 93rd Congress, 2nd Session, 1974.

18. On this defeat of the National Public Employees Labor Relations Act, see McCartin, “Wagner Act for Public Workers.”

19. On the importance of patient care, see the remarks made by Senator Cranston on May 2, 1974: “The long hours worked and the small monetary reward received by hospital workers result in a constant turnover with a consequent threat to the maintenance of an adequate standard of medical care. This was emphasized over and over again by many of the witnesses. Turnover rates for employees in several hospitals that were studied were reported by witnesses to be as high as 1,200 to 1,500 [percent] a year”; 120 Congressional Record 12936–12938. See also the testimony of Joseph Sergent, a physician supporting the bill “for personnel in the healthcare field union representation results in a more stable work force and better qualified people… the employment of better qualified people must logically improve the quality of the healthcare package delivered to the patient”; Hearings of the Subcommittee, July 31, 1973, 59; the testimony of Joseph Murphy, president of SEIU Local 47: “NLRA coverage of non profit hospital employees would enhance the quality of hospital service by improving labor relations, since workers could gain union recognition without striking.” On the importance of wages see the remarks of Senator Cranston on May 2, 1974: “During the last 2½ years, hospital wage increases have lagged far behind those received by workers in other industries.” 120 Congressional Record 12936.

20. Statement of Dr. Sergent, Hearings of the Subcommittee, 59. See also the individual views of Senator Dominick suggesting that the justification for the bill lay in the very need for the continuity of services: “Hospital Care is not storable… there is no stockpile from which to draw, no storage yard, or warehouse backup potential as found in many business fields”; Senate Report 93–766, 93rd Congress, 2nd Session, 39.

21. Seidman, “Nurses and Collective Bargaining,” 348; Kruger, “Bargaining and the Nursing Profession,” 703. The role of supervisors in organizing campaigns in mentioned in Melosh, Physician’s Hand, 201.

22. One good example of this was the case Sherwood Enterprises, 175 NLRB 59 (1969). For a list of cases in the same vein, see E. A. Keller Jr., “Death by Textualism: The NLRB’s ‘Incidental to Patient Care’ Supervisory Test for Charge Nurses,” American University Law Review 46 (1996): 575–623, 585.

23. The Massachusetts cases were Quincy Hospital and University Hospital, 1965. See the testimony of RN Bonnie Graczyk for the ANA, on S. 794, July 31, 1973, Hearings of the Subcommittee,, 123. For the New York State Board decision, see the journal of the ANA, Economic Security News, June 23, 1967, 9, quoted in Seidman, “Nurses and Collective Bargaining,” 349.

24. This executive order came in response to the request for a bargaining composed solely of supervisory nurses. EO 10988—the legal basis for unionism in public employment—required only that a unit not include employees who supervise and evaluate others in the unit. See Seidman, “Nurses and Collective Bargaining,” 345.

25. Statement of Bonnie Graczyk on S. 794, July 31, 1973, Hearings of the Subcommittee, 115–127; statement of Charles E. Hargett on H.R. 1236, Hearings of the Subcommittee, 22–23; statement of Murray A. Gordon, counsel of the Committee on Interns and Residents of the New York City Municipal Hospitals, on S. 794, August 1, 1973, Hearings of the Subcommittee, 296–309; statement of Anthony Bottone, executive secretary of the Committee of Interns and Residents of New York City on S. 794, August 1, 1973, Hearings of the Subcommittee, 355–161.

26. See the testimony of RN Charles Hargett for the ANA on H.R. 1136, undated, Hearings of the Subcommittee, 16; as well as the testimony of Bonnie Graczyk on S. 794, July 31, 1973, Hearings of the Subcommittee, 122.

27. Testimony of RN Charles Hargett for the ANA on H.R. 1136, undated, Hearings of the Subcommittee, 17.

28. Oral interview with RN Peggy O’Maley, January 12, 2010. The charge system is described at length in the Kentucky River cases (see above).

29. Statement of RN Bonnie Graczyk on S. 794, July 31, 1973, Hearings of the Subcommittee, 121.

30. On the question of teams, see ibid., 122.

31. Testimony of Lester Asher, August 16, 1972, Hearings of the Subcommittee, 65. George Hardy, the president of SEIU was blunt, saying, “We are not opposed to this amendment as long a chances for the bill are not damaged.” See Hearings of the Subcommittee, 65. For the SEIU leaders’ plea of faith in the NLRB, see the testimony of Joseph Murphy, the legislative director, Hearings of the Subcommittee, 61–62.

32. This proposal was S. 2292. Along with imposing a restricted number of units, it would have prohibited all strikes and lockouts except in limited circumstances. It received a strong backing in the testimony of the Chamber of Commerce; see Hearings of the Subcommittee, 593, and the testimony of the representatives of the American Hospital Association, Hearings of the Subcommittee, 131–141.

33. House report on H.R. 11357, “To Amend the NLRA to Extend Its Coverage and Protection to Employees of Non Profit Hospitals and For Other Purposes,” 92nd Congress, 1972, 5.

34. House Report 93–1051, 7; Senate Report 93–766, 6, my emphasis.

35. Although the Taft alternative failed, by the mid-1980s the nurses movement was thwarted by conflicting district decisions on RN units, some of which struck them down, arguing that the board should look at “disparity of interest” to create bargaining units, while others upheld them and directed the board to base its rulings on the notion of “community of interest.” At stake in this legal battle was the ability of nurses to speak as a social group, mouthing common values and promoting a well-defined common interest. To solve the problem of conflicting court decision on this question, the NLRB resorted to rule making for the first time in its history. Nurses, the board noted, constitute a cohesive group of workers because their obligations are different: as a group they are on duty 24/7 and individually can all be required to work overtime. Their professional status is based not on one skill but on a “cluster of knowledge” that allows their constant interaction with patients regardless of their condition and status. Most important, the board found, nurses formed a cohesive group of “employees” for managerial and economic reasons. In a typical hospital setting, they are all supervised by one nurse, the director of nursing, but remain responsible for their acts. The board also found that nurses were overwhelmingly women suffering from a low pay scale and career ladder and were particularly affected by problems such as floating and scheduling. As their long history of collective bargaining did not reveal any degree of interaction with other professionals, the board argued, there was no reason to mandate their inclusion in broad units. See Joel D’Alba, “Legal Problems Confronting Health Care Employee Unions: An Update” (conference, Institute of Labor and Industrial Relations, University of Illinois, March 4–6, 1981), 27–39; oral interview with Alan McDonald, lawyer for the Massachusetts Nurses Association, January 13, 2011, on file with the author.

36. See NLRB v. Yeshiva University, 672n30.

37. Joseph J. Bean and Rene Laliberty, Understanding Hospital Labor Relations: An Orientation for Supervisors (Reading, Mass.: Addison-Wesley, 1976), 29.

38. See Jefferson Cowie, “‘A One-Sided Class War’: Rethinking Doug Fraser’s 1978 Resignation from the Labor-Management Group,” Labor History 44, no. 3 (2003): 307–314.

39. Warren H. Chaney and Thomas R. Beech, The Union Epidemic: A Prescription for Supervisors (Germantown, Md.: Aspen Systems, 1976).

40. Ibid., 4–5; see also 35–41. On the use of consultants in health care conflicts, see Charles T. Joyce, “Union Busters and Front-Line Supervisors: Restricting and Regulating the Use of Supervisory Employees by Management Consultants During Union Representation Election Campaigns,” University of Pennsylvania Law Review 135 (1987): 453–493. See also the epilogue to this book. Steven Greenhouse, “Bid to Organize Nurses Faces Setback in Congress,” New York Times, April 21, 2009, B1.

41. Herbert G. Melnick, quoted in John Logan, “Consultants, Lawyers, and the ‘Union-Free’ Movement in the USA Since the 1970s,” Industrial Relations Journal 33, no. 3 (2002): 197–213.

42. See William Eskridge, “The New Textualism,” UCLA Law Review 37 (1990): 631–692, according to whom Justice Kennedy is a textualist too; Frank H. Easterbrook, “Text, History and Structure in Statutory Interpretation,” Harvard Journal of Law & Public Policy 17 (1994): 61–70.

43. Beverly Enters v. NLRB, 661 F.2d 1095 (1992).

44. For the sixth circuit decision, see ibid., 1101–1105; Health Care & Retirement Corp. v. NLRB, 511 U.S. 571 (1994), 580–582.

45. Health Care & Retirement Corp. v. NLRB, Ginsburg dissenting 591–592.

46. The classic examples are Charles Sabel and Michael Piore, The Second Industrial Divide: Possibilities for Prosperity (New York: Basic Books, 1986); and Thomas A. Kochan and Paul Osterman, The Mutual Gains Enterprise (Boston: Harvard Business School Press, 1994). For the origins of these ideas, see Waring, Taylorism Transformed, 155–159; and Jonathan Goldin, “Labor-Management Cooperation: Bath Iron Works’s Bold New Approach,”Maine Law Review 47 (1995): 415–500. The proposal to amend Section 8a(2) is put in historical perspective in David Brody’s, Labor Embattled, History, Power Rights (Urbana: University of Illinois Press, 2005), 46–61. In many ways, this reform stemmed from an NLRB decision, Electromation Inc., in which the board ruled that an Indiana nonunion manufacturer violated the NLRA when it set up worker action committees to address working conditions and other problems. According to 8a(2), the employer is not allowed to be a part of the organizations representing workers’ interests.

47. Bryan M. Churgin, “The Managerial Exclusion Under the NLRA: Are Worker Participation Programs Next?” Catholic University Law Review 48 (1999): 557; and Shannon Browne, “Labor-Management Teams: A Panacea for American Businesses of the Rebirth of a Laborer’s Nightmare?” Ohio State Law Journal 58 (1997): 243.

48. Paul Weiler, Governing the Workplace (Cambridge, Mass.: Harvard University Press, 1990); Hecksher, New Unionism.

49. The Dunlop report was clear on this: “If a more cooperative conception of the employer employee relationship is embodied in labor law so that representation does not necessarily imply the existence of an adversarial relationship, it may be necessary to reconsider whether supervisors or middle managers should be denied the right to union representation or collective bargaining.” See “Fact Finding Report: Commission on the Future of Worker-Management Relations,” 55. This report as well as a substantial part of the hearings conducted by the commission are available online thanks to Cornell University at http://digitalcommons.ilr.cornell.edu/dunlop/.

50. Business Week, April 27, 1987, 127 and May 4, 1987, 15, quoted in Mike Parker, “Industrial Relations Myth and Shopfloor Reality: The Team Concept in the Auto Industry,” in Harris and Lichtenstein, Industrial Democracy in America, 249–274, 249.

51. See Weiler, Governing the Workplace, 216–217; and Lewis L. Maltby, “Statement of the American Civil Liberties Union Before the Commission on the Future of Worker-Management Relations,” September 8, 1994, http://digitalcommons.ilr.cornell.edu/.

52. “Fact Finding Report,” 28–30.

53. See Richard S. Meyer, “Total Quality Management and the National Labor Relations Act,” Labor Law Journal 45 (November 1994): 718–721. For a similar view, see Burton and Hawkins, “Oakwood Care.” Samuel Estreicher provides a rare dissenting view from the conservative side in “The Dunlop Report and the Future of Labor Reform,” Labor Lawyer 12, no. 1 (Spring 1996): 117–135.

54. On this question, see Nelson Lichtenstein, The Retail Revolution: How Wal-Mart Created a Brave New World of Business (New York: Metropolitan Books, 2009). I do not mean, of course, that companies did not proceed with the idea of job enrichment. Quite the contrary. But as the example of Toyota shows, they did not need unions for that.

55. Business Week, “Working… and Poor,” May 31, 2004.

56. These points were made at length by the ANA and the AFL-CIO unions in their briefs for the Oakwood case. For an RN’s view of collective bargaining, see also James Eggleston, “Patient Advocacy and Consumer Protection Through Union Activism,” Saint Louis Law Journal 41 (1996–1997): 925–951, who argues that nursing unions have a unique ability to influence the quality of care that is provided by employers to their workers through health plan benefits; see 947–951.

57. The “no single lifts” provision is mentioned in Amy Albro, “Rubbing Salt in the Wound,” Northwestern Journal of Law and Social Policy 3 (2008): 103–130, see esp. 111. U.S. Bureau of Labor Statistics, Workplace Injuries and Illnesses in 2009 (Washington, D.C.: U.S. Bureau of Labor Statistics, 2009), table 5. Examples of contracts are available on the website of the National Nurses United. See, e.g., the Ohio Dayton Contract, available at http://www.nationalnursesunited.org/page/-/files/pdf/va/contracts/dayton-oh.pdf. For a general perspective on the taxing work of nurses, see Sara Corbett, “The Last Shift,” New York Times, March 16, 2003, 58.

58. See “Nursing Shortage: Fact Sheet,” report of the American Association of Colleges of Nursing (AACN), available at www.aacn.nche.edu/, as well as the statement of the tricouncil of nursing, available at www.aacn.nche.edu/. Peter Buerhaus et al., “The Recent Surge in Nurse Employment: Causes and Implications,” Health Affairs 28, no. 4 (July 2009): 657–668, argue that the effects of the recession will be short-lived and project a shortage of 260,000 nurses.

59. Suzanne Gordon, Nursing Against the Odds: How Health Care Cost Cutting, Medical Stereotypes and Medial Hubris Undermine Nurses and Patient Care (Ithaca: Cornell University Press, 2005), 238, passim.

60. Ibid., 244–245, on which this paragraph heavily relies; and Simon Head, The New Ruthless Economy (New York: Oxford University Press, 2003), 23–42.

61. Douglas S. Wakefield et al., Understanding Patient-Centered Care in the Context of Total Quality Management and Continuous Quality Improvement (1994), quoted in Eggleston, “Patient Advocacy and Consumer Protection,” 935.

62. On scripting and rounding, see Heather Boerner and Lucia Hwang, “Losing Our Voice,” National Nurse, October 2010, 20–23.

63. Oral interview with RN Sandy Eaton, January 14, 2011, on file with the author.

64. Oral interview with RN Peggy O’Maley, January 13, 2011, on file with the author.

65. Linda Aiken et al., “Hospital Nurse Staffing and Patient Mortality, Nurse Burnout and Job Dissatisfaction,” Journal of the American Medical Association 288, no. 16 (2002): 1987–1993.

66. See the report of the Joint Commission on Accreditation of Healthcare Organizations, Heath Care at the Crossroads (2002), available at http://www.jointcommission.org/assets/1/18/health_care_at_the_crossroads.pdf. In 1999, a study released by the Minnesota Nurses Association revealed that 70 percent of the nurses surveyed complained of being unable to provide basic nursing duties on a timely basis. See Gordon, Nursing Against the Odds, 256.

67. Agreement between the California Nurses Association and Alta Bates Medical Center, quoted in Eggleston, “Patient Advocacy and Consumer Protection,” 954.

68. Washington State Nurses Association v. NLRB, 526 F.3d 577 (9th Cir. 2008), reviewing Sacred Heart Medical Center, 347 NLRB 48 (2001). See also Mt Clemens General Hospital v. NLRB, 328 F.3d 837 (6th Cir. 2003), reviewing Mt Clements General Hospital, 335 NLRB 48 (2001). On the whole the courts and the board have generally required employers to demonstrate an adverse impact to justify the prohibition of such union buttons.

69. Oral interview with Barry Adams, Boston, January 14, 2011; Barry L. Adams, “To Do the Unthinkable,” in When Chicken Soup Is Not Enough: Stories of Nurses Standing Up for Themselves, Their Patients, and Their Profession, ed. Suzanne Gordon (Ithaca: Cornell University Press, 2010).

70. Tanya Bretherton, John Buchanan, and Suzanne Gordon, Safety in Numbers (Ithaca: Cornell University Press, 2008), 66–68.

71. Oral interview with Kenn Zinn, January 8, 2010, on file with the author.

72. Weiss, “Kentucky River at the Intersection of Professional and Supervisory Status,” 387.

73. Ibid., 370–371.

74. See Providence Alaska Medical Center v. NLRB, ANA and UNA 121 F.3d 548 (9th Cir. 1997), 9887 (case 96–70595).

75. Weiss, “Kentucky River at the Intersection of Professional and Supervisory Status,” 387.

76. G. Roger King, “Where Have All the Supervisors Gone? The Board’s Misdiagnosis of Health Care & Retirement Corp.,” Labor Law 13 (Fall 1997): 353–358.

77. NLRB v. Kentucky River Community Care, 719.

78. Burton and Hawkins, “Oakwood Care.”

79. See Chevron, USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).

80. NLRB v. Kentucky River Community Care, 8.

81. Lester A. Heltzer, “Notice and Invitation to File Briefs,” July 25, 2003, http://www.nlrb.gov/.

82. Michelle Amber, “Labor Movement Rallies Around Pending NLRB Rulings Defining Supervisors,” Daily Labor Report (BNA), nos. 1522–5968 (July 14, 2006); EPI issue brief 225, “Supervisor in Name Only: Union Rights of Eight Million Workers at Stake in Labor Ruling,” http://www.epi.org/.

83. Cited in a statement by John Sweeney and Rick Bender, “Bush’s NLRB Seems Poised to Cripple American Labor,” July 11, 2006, quoted in Gerald Friedman, “Labor and the Bush Administration: Down So Long, Seems Like Up to Me,” Lisa e-journal 8, no. 1 (2010): 69–85.

84. Matter of Oakwood Healthcare Inc., 348 NLRB no. 37 (2006), 5; “Employer Oakwood Healthcare Inc’s Brief on Review,” 1–2, http://www.nlrb.gov.

85. Matter of Oakwood, 348 NLRB no. 37, 689.

86. Ibid., 691, 693.

87. I am grateful to Nancy Schiffer, counsel for the AFL-CIO, for helping me with these questions. Matter of Oakwood, 709.

88. See Steven Greenhouse, “Board Redefines Rules for Union Exemption,” New York Times, October 4, 2006; Paul Bigman, “Kentucky River Threatens to Swamp Labor,” Dollars & Sense, September 2006, http://www.dollarsandsense.org/; and James Parks, “Labor Ruling May Bar Millions from Joining Unions,” http://blog.aflcio.org/. Links to the Colbert report on Kentucky River and responses by elected officials can be found on the page devoted to the Kentucky River cases on the AFL-CIO website, http://www.aflcio.org/. Larry Cohen to Robert Battista, October 6, 2006, http://www.aflcio.org/.

89. This paragraph is based on oral interviews with John Hiatt (AFL-CIO), Nancy Schiffer (AFL-CIO), John Borsos (UHW), and Kenn Zinn (NNU). For agreements in which hospital managements pledge not to use the Kentucky River cases, see “RNs at Two California Hospitals Gain Pay Increases and Job Security Provisions,” Collective Bargaining Newsletter, 12 COBB 43, April 12, 2007 (noting that the collective bargaining agreements for registered nurses at Stanford Hospitals & Clinics and Lucile Packard Children’s Hospital in Palo Alto, California, include language prohibiting the hospital from relying upon the Kentucky River trilogy of cases to challenge the status of anyone currently in the bargaining unit); “NLRB Members Discuss Effects of Oakwood, Pending Cases,” Collective Bargaining Newsletter, 12 COBB 23, February 15, 2007 (noting a similar agreement between Kaiser Permanente and the unions representing its employees). These examples are quoted in Roger King’s testimony on H.R. 1644, May 8, 2007, 5.

90. From 1996 to 2006, the number of representation cases in which the “supervisory” issue was involved declined by 41 percent according to a confidential memo produced by the AFL-CIO. For a good example of a business-oriented analysis of the Oakwood case, see Roger King and David Birnbaum, “Kentucky River Trilogy: Recent NLRB Decisions Clarify the Meaning of ‘Supervisor’ Under the NLRA,” HR Advisor: Legal and Practical Guidance 13, no. 1 (2007): 5–12.

91. Antonio Gramsci, Selection from the Prison Notebooks (New York: International Publishers, 1971), 276.

Epilogue

1. Statement of Sarah Fox, “Are NLRB and Court Rulings Misclassifying Skilled and Professional Employees as Supervisors?” Joint Hearing Before the Subcommittee on Health, Employment, Labor and Pensions, U.S. House of Representatives, May 8, 2007, 9.

2. Statement of Congressman Robert Andrews, “Are NLRB and Court Rulings Misclassifying Skilled and Professional Employees as Supervisors?” Joint Hearing Before the Subcommittee on Health, Employment, Labor and Pensions, 2.

3. “The Haves and the Have Nots: How American Labor Law Denies a Quarter of the Workforce Bargaining Rights,” report by American Rights at Work (November 2008), 2, http://www.americanrightsatwork.org/.

4. On the decisions made early on by the Obama administration on which bills to push, see Jonathan Atler, The Promise (New York: Simon & Schuster, 2009), 79.

5. Cynthia Estlund, “The Ossification of Labor Law,” Columbia Law Review 102, no. 6 (October 2002): 1530. Estlund was quoted by Sarah Fox in her testimony. For an earlier statement of this theory, see also Paul Weiler, “Promises to Keep: Securing Workers’ Rights Under the NLRA,” Harvard Law Review 96, no. 8 (June 1983): 1769–1823. Weiler argued that “contemporary American labor law resembles an elegant tombstone,” 1769. See also Rick Fantasia and Kim Voss, Des syndicats domestiqués (Paris: Raisons d’agir, 2004).

6. “This workplace was characterized by a stable contract of hire between a single employer and employees engaged in work of a continuing nature at a fixed location, with hierarchical organization of work and promotion ladders. This model—exemplified by the manufacturing plants of the 1930s and 1940s—is increasingly anachronistic in a post-industrial and fiercely global economy…. Work is increasingly contingent”; Wilma Liebman, “Decline and Disenchantment: Reflections on the Aging of the National Labor Relations Board,” Berkeley Journal of Employment & Labor Law 28, no. 2 (2007): 574–575.

7. Statement of Fox, 7–8.

8. Statement of Senator Dodd, “Are NLRB and Court Rulings Misclassifying Skilled and Professional Employees as Supervisors?” Joint Hearing Before the Subcommittee on Health, Employment, Labor and Pensions, 72.

9. Prepared statement of the American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO, Joint Hearing Before the Subcommittee on Health, Employment, Labor and Pensions, 74.

10. Andrews actually presented the issue as the need to deal with the “Bermuda Triangle” created by the Kentucky River cases, which “created a category of workers who has the worst of all worlds.” Statement of Andrews, Joint Hearing Before the Subcommittee on Health, Employment, Labor and Pensions, 2.

11. To be sure, some will argue that this would open the door to unions of executives and “real managers,” which is not desirable. This is not what I am advocating here. Rather, my argument is that all people employed for wages or a salary should be free to organize if they experience the need to join a union. No doubt, many such managers and executives would eschew this possibility.

12. See Sven Beckert, “Democracy in the Age of Capital: Contesting Suffrage Rights in Gilded Age New York,” in Jacobs, Novak, and Zelizer, Democratic Experiment, 146–169; Liette Gidlow, “Delegitimizing Democracy: Civic Slackers, the Cultural Turn, and the Possibilities of Politics,” Journal of American History 89, no. 3 (December 2002): 922–957.

13. Heritage Foundation, “The Respect Act: Congress Should Preserve the Balance Between Management and Employees,” WebMemo, no. 1667 (October 17, 2007), http://www.policyarchive.org/.

14. National Association of Manufacturers (NAM), “The Respect Act: Fomenting Conflict Between Employee Classes,” http://www.nam.org/.

15. Letter from the National Association of Waterfront Employers to Congressman Andrews, May 18, 2007, in Hearings of the Subcommittee, 78.

16. Statement of Roger King and Jones Day on behalf of the U.S. Chamber of Commerce: “Oftentimes the supervisor is the difference between complying with OSHA, with the Fair Labor Standards Act, and State legislative enactments. If you don’t have, as an employer, control over the workplace, compliance in those areas could be highly suspect”; 20.

17. There is, of course, no official count of the workers excluded under the NLRA definition of “employee” and “manager.” In 2002, the GAO published a report counting 10.2 million first-line supervisors and higher managers who were without bargaining rights in the private sector. See General Accounting Office, “Collective Bargaining Rights: Information on the Number of Workers With or Without Bargaining Rights,” GAO-02-835, 2002, 12. As the report admitted, however, this number was underestimated because it did not take into account part-time workers. Using 2005 figures, the organization American Rights at Work has counted some 13 million supervisors and managers excluded in the private sector, plus an additional 3.4 million in the public sector. See “The Haves and the Have Nots,” 9. Neither of these studies takes into account the impact of the Kentucky River cases, which, as noted earlier, might bring an additional 8 million workers outside of the scope of the law, thus bringing the number to 24 million. My estimate of the much larger number of workers whose duties straddle the line between professional and managerial duties comes from Charles Hecksher, New Unionism, 68–69, 78. As Hecksher rightly noted, it is the whole group of middle managers and semiprofessionals whose rights are at risk under the legal definition of the worker.

18. Nancy Mills, organizer, quoted in Joyce, “Union Busters,” 453.

19. Philip Lederer, “Management’s Right to the Loyalty of Supervisors,” Labor Law Journal 32, no. 2 (February 1981): 83–104.

20. See, e.g., Alfred T. Maria, Managing to Stay Non-Union (New York: Executive Enterprises, 1979); The Supervisor’s Handbook on Maintaining Non-Union Status (New York: Executive Enterprises, 1986). See also manuals published under the aegis of the NAM to be distributed during seminars, such as “Remaining Union Free.”

21. Nelson Lichtenstein, “How Labor Can Win,” In Search of Progressive America, ed. Michael Kazin, with Franz Becker and Menno Hurrenkamp (Philadelphia: University of Pennsylvania Press, 2008), 136.

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