CHAPTER 5

The Other Side of Industrial Pluralism

Shall I get down on my knees, or shall I bludgeon you to go over to the NLRB?” Franklin D. Roosevelt’s blunt ultimatum to William Leiserson in October 1939 revealed his determination to send the seasoned labor arbitrator to the agency created by the Wagner Act four years earlier. Leiserson himself had no inclination to leave his post at the National Mediation Board, the agency in charge of the implementation of the 1925 Railway Labor Act. Trained under the supervision of John R. Commons in Wisconsin, he believed that his expertise lay in helping managers and workers reach compromises and live by the strict rules that collective bargaining contracts contained. “I give the decision to one side, but I give the language to the other side,” he said of his work in the contested labor relations of the needle industry. Arbitrating disputes was not something he would be able to do at the NLRB, whose mission was only to promote the right to organize by developing a law of unfair labor practices. As Leiserson knew, the NLRB was the province of progressive jurists, many of whom had no background in industrial relations, and he would not be happy there.1

At fifty-six years old, Leiserson was older than many of the young, enthusiastic lawyers that the New Deal had channeled toward the nation’s capital. He belonged to an earlier generation of Jewish immigrants who had carved a place for themselves in American society by pushing it to live up to its democratic ideals and its promise of upward mobility. The time when he earned a living by cooking flapjacks at a one-minute coffee shop on the campus of the University of Wisconsin was long gone, but Leiserson’s faith in the progressive opposition to class antagonism had not weakened since his student days. While he shared the liberals’ faith that a large upward shift in workers’ purchasing power could be effected by protecting unions—in fact he had often agitated for it—he did not believe that societal harmony could be attained simply by protecting the right to organize against recalcitrant employers. Independent unions were indeed essential to comity, but comity required the visible hand of an outside party, a hand Leiserson had exerted for the NIRA and the petroleum field before moving on the National Labor Mediation Board. Leiserson’s reputation as a fair arbitrator was formidable, and it was precisely his ability to make decisions while placating unhappy companies that Roosevelt found appealing—as Time noted, the president wanted him to go over the NLRB to “sweeten” its interpretation of the law.2

In 1939, the NLRB was going through an institutional crisis that threatened to weaken the New Deal. A large part of public opinion, including liberal observers such as Walter Lippmann, believed the board was biased toward the radicalism of the CIO and fostered class warfare instead of harmony. In fact, the agency’s difficulties mostly stemmed from its almost paradoxical mission: created in the Progressive mold of administrative agencies, it was designed to act in the public interest by promoting the right to organize. As it did so, however, it came under increasing pressure from businessmen who, having lost their constitutional struggle in 1937, now argued that the agency did not promote the workers’ freedom of choice, but worked in favor of unions. With the general political climate becoming more conservative after the 1938 elections, fulfilling the NLRB’s mission became a self-defeating approach. Faced with conservative political pressure and a possible refusal of Congress to vote the appropriations of the NLRB, FDR decided to appoint experienced but moderate labor experts who would carry out the board’s mission at a lower key, a decision that hardly concealed his misgivings toward an agency it had never wanted, let alone trusted—Roosevelt had never really accepted the premise of the act, that sustaining the right to organize would help to deflect class antagonism.3

Historians have seen in Leiserson’s arrival at the board—and in the subsequent appointments of Harry Millis and Paul Herzog, two labor experts equally steeped in the Wisconsin tradition—an important turning point in the history of labor relations in the United States. According to the standard account, this “reshaping” of the NLRB ended the democratic impulse of the New Deal as the board shed its bold defense of unionism. Millis and Leiserson engineered a new jurisprudential course, restricting workers’ rights both at union elections and during the duration of the contracts. The quest for social harmony came at the price of militancy, and as a result the sap was slowly drawn out of the labor movement, which later on found itself unable to fend off the conservative assault that depleted labor’s ranks after the 1970s.4

While there is indeed much archival and legal evidence to buttress this argument, the way Leiserson, Millis, and later on Paul Herzog dealt with foremen’s unions could help us to revise partly the standard account on industrial pluralism. Indeed, as they dealt with the definition of “employee” under the Wagner Act, the industrial pluralists who sat on the board cut directly against the grain of corporate America, its shrill defense of the “right to manage” and insistent demands on foremen’s loyalty. To the pluralists, indeed, there was no fundamental contradiction between the labor of superintendence and union membership. Reassessing the main tenets of the economic sociology they had inherited from John R. Commons, they offered a capacious definition of “employee” that opened the door to the full democratization of American work across class lines, one that turned the Wagner Act right to organize into a civil right that every person employed should enjoy even as it served to promote social harmony through bargaining.

Combined with the social pressure exerted on the shop floor by Robert H. Keys of the FAA, the board’s new definition of the worker under the Wagner Act thus offered a rare instance of an alliance between experts and civil society working together to redefine social norms.5 However, the window of opportunity that was thus opened closed rapidly. In 1947 the foremen’s struggle for a new social and legal identity ended when Taft-Hartley Act specifically excluded foremen and supervisors from the definition of “employee” and returned them to the ranks of management. For industrial pluralists, the victory of managerial loyalty over their vision of industrial harmony was a serious defeat, one that signaled their relative impotence in shaping new labor relations.

The Institutional Context

“When these cases reached the Board, we were not sure of what the right course of action was,” William Leiserson recalled of the first foremen’s cases after he had left the NLRB. “We had to feel our way.” Indeed, it is fair to say that when the foremen of the Auto-Lite Company in Wisconsin, having secured their affiliation with the UFS-CIO, sent their first petition request in 1939, the board was largely caught by surprise.6 Since the late nineteenth century, the ideal of industrial democracy and collective bargaining had revolved around the worker’s dream of ending the foreman’s petty dictatorship on the shop floor.7 To effect the protection of the freedom to unionize contemplated by the act, the board had used very early on the legal doctrine of respondeat superior, which established the employer’s liability for his employee’s conduct. Because the board consistently ruled that when foremen committed an unfair labor practice by hindering unionization of workers, they did so as “agents” of the employer, businessmen were prevented from fighting a vicarious struggle against independent unions.8

This was made possible by the very definition of “employer” in the law, as Section 2(2) stipulated that “the term ‘employer’ includes a person acting in the interest of an employer, directly or indirectly.” The legal definition of foremen as part of the social entity “employers” rather than workers (employees) was thus key to the development of industrial democracy, particularly in the automobile and the steel industry, where managers had long relied on foremen to oppose the democratization of the factory. As late as 1940, foremen at Ford were found pressuring workers to obtain letters in which they pledged that they were satisfied with their working conditions and earnings, and did not need a union.9

Yet at first corporate executives denied that foremen qualified as agents of “employers” in labor law. Indeed, it is a measure of corporate America’s determination to exert its hegemony on American law that the first political debate on the status of foremen under the Wagner Act stemmed from their attempt to convince the members of Congress that the board erred in associating foremen and supervisors with “employers” and management. Against the board’s rulings that any person in charge of maintaining discipline or production goals was not an “employee” when he or she expressed an opinion about labor relations, company executives argued that foremen did not have the power to hire and fire, and thus should not be assimilated with the managers included in the category “employer.” In 1939 corporate America enlisted conservative members of Congress such as Fred Hartley to amend the law so as to shield themselves from the legal penalties accruing from foremen’s antiunion activities—an odd historical irony since a few years later Hartley would spearhead the legislative drive to classify foremen as managers.10 Along with their restrictive definition of “management,” those amendments specified that foremen had the right to unionize, although they should not take part in the selection of shop stewards. No longer union busters, the foremen would now pass as workers debating the virtues of unionism. As the board noted in its report to the Senate, “These proposals are in direct conflict with the basic principles of the Act, they would … result in nullification of the right of employees to freedom in self-organization and would lead to an increase in industrial warfare.”11 Congress followed the NLRB on this question, and the amendments to the NLRA were not adopted.

Having secured the legal classification of foremen and supervisors as “employers,” the board thus found itself in a precarious position to respond to the request of the UFS and grant foremen the legal status of “employees.” Indeed, the foremen’s movement raised three thorny doctrinal questions. First, was whether recognizing the right of foremen to bargain collectively would give them a freedom of speech about unionism that might constitute a violation of the workers’ right to choose without interference from the employer and the employer’s agents. By wearing union buttons, for example, foremen might be seen as offering an influential opinion. Second, the board had to decide whether foremen should be allowed to join rank-and-file unions or rather should be allowed to join a union of their own. Finally, given the centrality of the foremen in the modern production system, the members of the board feared that if they sustained the right of foremen to bargain collectively, they would be accused of allowing rank-and-file unions to sit on both sides of the negotiating table, which seemed to contradict the basic principles of collective bargaining.12

Such questions were compounded by the thoroughly legalistic turn that labor relations had taken after the Wagner Act. As Christopher Tomlins has noted, the board had adopted court-like procedures from the beginning, and a legal discourse suffused its approach to all the cases with which it dealt. As its use of the concept of respondeat superior in unfair labor practice cases indicated, the board lawyers developed labor law as a set of coherent doctrines that made rights and duties predictable on both sides. As for labor disputes, they were adjudicated rather than mediated or studied. Each party was represented by a lawyer, who was free to summon witnesses and cross-examine the other party’s witnesses to convince the commissioners.

This legal discourse was not necessarily well adapted to the rethinking of the parameters of industrial relations that foremen’s unionism required. It forced the board to apprehend the foremen’s question from an abstract standpoint instead of a case-by-case basis—which the pluralists would certainly have preferred. Furthermore, it gave any of its decisions on the definition of “employee” a jurisprudential, national dimension that exacerbated the political stakes involved in each matter involving foremen. However, the board was deprived of the means to buttress its decisions with material explaining how they related to its overall mission, which was to promote industrial peace and collective bargaining.13 In fact, the board did have one structure designed to investigate and research the social and economic origins of labor disputes— the Economic Research Division, which was headed by Commons’s student David Saposs—but it was eliminated by Congress in 1940 in response to the investigation of the board led by the Smith Committee during that year. A response to both business and AFL criticism of the board, the commission was created at the behest of a group of assertive southern Democrats and northern Republicans eager to amend the act and whittle away the protections it afforded. Putting a spotlight on potential links among the board, the CIO, and the Communist Party, the investigation easily made the headlines, and in the House of Representatives, its criticism of the board’s decisions even resulted into a lopsided vote in favor of the amendments favored by the business community and the AFL, which wanted to check the growth of the CIO and did not benefit from the Wagner Act as much. Labor progressives held the line in the Senate, but the investigation was just a harbinger of the reactionary crusade to come.14

As a result, one may say that in the years 1939–1947, the time when the board consumed a significant part of its time dealing with the issue of foremen unions, this legal discourse was probably the board’s strongest claim to political legitimacy. At the time, the agencies created during the New Deal were coming under intense legal scrutiny and political criticism because of their allegedly obscure and unfair procedures. In the increasingly tense international context of the late 1930s and early 1940s, with totalitarianism looming in the background, the idea that nonelected experts should be trusted with important policy-making responsibilities was increasingly challenged. Given the alleged presence of members of the Communist Party at the board, it received special criticism for “administrative absolutism.”15

Still, events at Chrysler in the fall of 1939 revealed just how difficult handling the foremen’s issue would be. The UAW was then in the midst of a struggle against Chrysler, which had taken advantage of the bitter factionalism opposing the UAW-AFL and the UAW-CIO to cancel its collective bargaining contracts with the union. Instead of negotiating, the company organized a speedup and laid off “slow workers.” After the landslide victory of the UAW-CIO in September 1939, the union leadership called on the company to end the speedup, but the company countered that the union was using unauthorized committeemen to organize slowdowns. At Dodge Main, the company contended, these new shop stewards outnumbered foremen and directed the workers themselves. In October, when Chrysler fired some 105 Dodge Main shop stewards, the workers responded with “job skipping”— letting every second car go by unfinished—until the company simply closed the factory. After a forty-seven-day lockout, Chrysler gave in because it could not recruit enough strikebreakers to operate the plant. The shop stewards were reinstated, and the company agreed to negotiate production standards with the union.16

It was at that precise point, as the process of bargaining was about to start, that the UFS filed a fresh petition with the NLRB, this time to protest the decision by Dodge managers to lay off a number of foremen because of their membership in the union.17 The company immediately argued for their “right to manage,” and negotiations broke down over the foremen’s issue. To Chrysler executives, this time alert to the possibility of a union of foremen, foremen’s unionism would only reinforce the UAW’s “dual power,” which it considered as nothing short of an ongoing attempt to turn the factory into a soviet. The fear may have been exaggerated, but the company managed to force the issue into the main newspapers of the nation, accusing the union of violating the main tenets of collective bargaining. “Chrysler Asks CIO to End Bid to Foremen,” the New York Times explained in 1939.18

Determined to hasten slowly on the question of the UFS-CIO, the board convened CIO leaders to discuss their views on the integration of foremen’s unions in the collective bargaining landscape. But like the members of the board, they had no clear suggestions to offer, and in fact they were divided over the issue. Adolph Germer and Homer Martin—the first president of the UAW-CIO—had assisted the UFS in its quest for recognition by the CIO, but R. J. Thomas, the new president, opposed it, contending that foremen represented first and foremost a liability in negotiations, and a rather unfortunate one at the very moment when the CIO unions needed to sign important contracts.19 As a result, the short-term goal of signing a contract with Chrysler prevailed. Seeking a way out of the impasse in which the foremen’s issue had put it, the CIO and the UAW made the decision to disband the Local 918 of UFS. As John Brophy—John L. Lewis’s CIO man—explained in a letter, “under the present circumstances, nothing more can be done about [this] group.” The UAW went on to renew its contract with Chrysler, but the CIO had given a first glimpse of what its position on foremen’s unions would be—while it did not oppose the labor rights of any group of workers, groups seeking to be included in the category “employee” for collective bargaining purposes would have to fight this battle on their own. For now, it was content with a legal definition of the worker that was rooted in manual factory work and did not directly challenge the authority of management. This was a policy it would be at great pains to reverse.20

As for the NLRB, it was in no position to adopt a policy that the CIO did not fully support and was not willing to defend. No doubt sensing that it was unwise to spend what political legitimacy it had left on such a controversial issue, it decided to decline to respond the petitions of the UFS.21 As William Leiserson explained, “We decided that we would wait and see whether the foremen really wanted to organize, or whether the movement was only a mere flash in the pan.” With no more than a thousand members, the UFS certainly was not worth an uphill political battle.22

Toward an Employment Democracy

The foremen’s movement might have been deprived of the protection of the state, but it did not lie dormant for long. By 1941, it reemerged through the creation of two new unions: the Mine Officials Union of America (MOUA) and the Foremen’s Association of America (FAA) in the automobile industry. By 1942, strikes had erupted in the mining industry, idling thousands of miners. Meanwhile, the growth of the FAA in the Detroit area was impressive— it had over ten thousand members by December 1942. Seeking to translate this new power into official recognition, in the spring of 1942 it submitted to Frank Bowen, the regional director in Detroit, a list of five thousand foremen at Ford who wanted to form a collective bargaining unit. As Henry Ford was willing to negotiate with the FAA, Bowen proceeded to suggest to the board that the time had come to start revising the NLRB’s policy regarding foremen. At the same time, the NLRB was receiving petitions from unaffiliated foremen working in other industries, especially steel and aeronautics. Thus, by 1942, with economic mobilization in full swing, the social and political environment in which the NLRB determined the sociological boundaries of the legal definition of the worker in labor relations had been fundamentally transformed. Now there was no denying that foremen’s unionism was developing and that a clarification of the foremen’s status was in order—social strife made it possible to envision collective bargaining by foremen as being necessary to industrial harmony.23

The NLRB, however, did not follow Bowen’s suggestion that Ford Motor Company might prove a good testing ground for a fresh definition of “employee,” opting instead for the mining sector. Like the FAA, the MOUA grew out of the gap that New Deal legislation had created between rank-and-file workers and first-line supervision. The mine bosses were systematically excluded from the collective bargaining contracts signed by the United Mine Workers (UMW) after 1933, and they had felt the brunt of the depression of 1937–1938. At Ford Collieries, the bosses were shifted to the hourly wage in 1937, and they worked only an average of three days a week when the union was created, in December 1940. By 1941, however, demand for coal rose again because of the military support offered by the United States to its allies. Once again Ford Collieries changed the status of foremen, putting them back on a monthly salary and extending paid vacation and health benefits to them. Still, it refused to bargain with the union, which petitioned the board for an election in December 1941.24

By then, William Leiserson and Harry Millis had decided that the time had come to change course. In the Union Collieries decision in 1942, the board ruled that all assistant foremen, checkweighmen, and night bosses were “employees,” with full bargaining rights, and that they should constitute a separate bargaining unit. Only general foremen (whom, importantly, the MOUA did not wish to include in the bargaining unit) were still classified as “employers.” The reports filed by the field examiner and the regional director, who suggested this new definition, shed light on the rationale of the board’s decision, which was deeply rooted in the workers’ experience of the mine and the organization of work. None of the assistant foremen could hire or fire miners, and they did not take part in the grievance procedure protecting rank-and-file miners (this was the role of the general foreman). None of them had the responsibility to “get out production”—the assistant foremen enforced the general managers’ assignment of a job to each worker; the fire boss was in charge of security, and the weigh boss assessed the amount of coal extracted. The coal inspector was in charge of quality. In fact, like the miners, these bosses were paid by the hour, and could be let go when demand slowed.

Moreover, the reports also revealed that the mine pit generated a spirit of camaraderie among miners and foremen, which separated this group from the general manager who never went down the mines. This camaraderie was based on shared experience—all the bosses had started out as miners—and was reinforced by the impervious need for security that all men felt. But the field examination also revealed that the mine was a social milieu in which men interacted in other ways, exchanging jokes and political opinions when they changed shifts. Finding against the company’s attorney, who struggled to make his case that a sharp managerial line separated the workers from the bosses, the board adopted a definition of “employee” that ran deep roots in the social character of mine work.25

Other contextual elements sustained the board’s decision to redraw the social contours of “employee.” The company, although it refused to formally bargain with the union, had already met with union representatives and agreed to improve their status—hence there was some bargaining before the NLRB acted. The board’s decision to intervene in this dispute could find further legitimacy in the fact that a strike by the union would idle some thirty thousand miners, for in Pennsylvania, as in all mining states, the law prohibited miners from going down the pit without supervision. The board could thus claim to be fulfilling its mission—promoting industrial peace.

Following a jurisprudential logic, four months later, the board sustained the bargaining rights of foremen in a case involving the Godchaux Sugar Company. Once again, it sidestepped in the automobile industry, but what mattered is that this time it went one step further in the protection extended to foremen. The board reasserted the idea that all foremen who did not have the power to hire and fire were “employees” and could form an independent bargaining unit, even though this time the foremen were members of the same union as the rank-and-file workers, namely, the United Sugar Workers–CIO.26

Unlike corporate America, Millis and Leiserson did not see foremen’s unionism as being the key to the transformation of labor relations. As we have seen, one of the main tenets of the labor sociology they had inherited from Commons was the notion that there was not one class struggle, but myriad legal disputes between employers and workers that could be easily remedied by adopting institutions that produced peaceful labor relations. Still, by sanctioning a new definition of the term “employee,” these industrial pluralists did break the link between “employee” and subordinated, manual labor that the theory of industrial democracy—particularly in the work of Commons—had established, and doing so, they laid the groundwork for a fundamental evolution of labor relations. Such a course of action requires some elaboration. If, as has been argued, by 1941 Millis and Leiserson had altered the course of the NLRB and redirected it in a more conservative direction, emphasizing not the rights of employees but industrial peace—one of the original goals of the Wagner Act—and “orderly” labor relations, how might we account for their decision to protect foremen’s unionism?

First, Leiserson and Millis believed that labor relations must always be sui generis, that is, they did not conceive of collective bargaining as a process involving fixed social entities. Rather, they saw it as a means to resolve disputes between opposing groups, be they workers, foremen, or white-collar workers. As Leiserson explained, “Whether these foremen or any other group organize, or should organize, will not be determined by any theory that you or anyone else works out. It will be determined solely by the way the men in these groups feel.” By the early 1940s, the board had received enough petitions from foremen in various industries to understand that the social and economic position of foremen had suffered since the recognition of CIO unions. Since the purpose of collective bargaining was to achieve social peace, it would have been illogical not to extend it to foremen: “Therefore the direction in which we must go is toward more collective bargaining … and that is true regardless of which group may be involved, whether manual workers, clerical or professional employees, straw bosses or foremen.” “Insofar as recognition is withheld, foremen must ‘grin and bear it,’ or resort to the use of their economic power, an alternative which the Act was meant to discourage,” Harry Millis explained.27

One critical element in these men’s thinking was, of course, the extent to which it was their depoliticized vision of the labor relations in the workplace that allowed them to envision a further development of the industrial democracy that they and their mentor, John R. Commons, had been advocating since the early days of the twentieth century. Notably, their defense of foremen’s unionism was cast in the same mold as the early Progressive calls for industrial democracy. This defense relied on a vision of employees as men and women divested of their class interests. As we have seen, industrial pluralists such as Leiserson had long argued that labor relations were actually “problems of human relationships” akin to those occurring in family relations and requiring perpetual adjustments. Because the theory of industrial democracy had long been rooted in the denial of the existence of a working class as an agent of political and social change, it was easy to argue that foremen and white-collar workers were no different from manual workers and could be trusted to carry legitimate union activities, as Leiserson explained: “And why should we be afraid? Because these people are employees, though a notch or two above wage workers. They do not become different people merely because they are in a union or not. They are the same human beings.”28

Indeed, Millis and Leiserson were unswayed by businessmen’s argument that the “right to manage” was at stake in the debate over foremen’s rights, largely because they had never seen collective bargaining as a purely adversarial process. “We perceive no necessary conflict between self organization for collective bargaining and the faithful performance of duty,” they explained, thereby denying that the right to organize should depend on the employee’s function.29 On the contrary, they believed collective bargaining fostered cooperation, and thus brought gains to both parties—a point that they had made during the congressional hearings for the Wagner Act. Key in the business unionist view of Leiserson, for example, was the idea that businessmen had to give workers a voice in the determination of their working conditions if they were to ensure their full participation. Hence, there again, it seemed illogical to these men to deny the right to organize to foremen, as Millis explained: “Whatever may happen, any attempt to frustrate the legitimate desire for self-organization and collective bargaining by such groups can only be harmful to the cause of good industrial relations and efficient production.”30 Clearly, the idea that collective bargaining actually sustained the production process, which had been a staple of the new unionism advocated by Sidney Hillman, did not prevent industrial pluralists from contemplating the unionization of the lower rungs of management. On the contrary, it actually made it possible—what was defection to business executives was democratization to the pluralists.

However, it would be a mistake to conclude that the commitment of these former students of John R. Commons to the principle of collective bargaining and to its extension to other social groups was merely a manifestation of their Progressive quest for social order. Indeed, they took the right to organize very seriously for two reasons. First, like other industrial pluralists such as Jett Lauck, Millis and Leiserson had long seen collective bargaining as the natural expression of humankind’s democratic impulse, an impulse that could not be denied. To be sure, the view that the labor question originated in autocratic labor relations was not simply theirs—Frank Walsh had largely publicized it from his pulpit as president of the U.S. Commission on Industrial Relations in 1917, millions of American workers had defended it during the war effort, and Senator Wagner had in turn defended it in the 1930s. Industrial pluralists nevertheless subscribed to it, first because they believed that the process of democratization was a natural, historical process, but also because, having been arbitrators in various industries, they knew exactly how the right to organize could be used to foster industrial peace. Following the logic of the evolutionary sociology first exposed by Commons in “A Sociological View of Sovereignty,” they contended that the extension of democratic principles to foremen so as to avoid strife was only the latest stage in the rise of democracy and in the substitution of negotiation for duress. Harry Millis gave this Whiggish persuasion a clear formulation in his Maryland Drydock dissent: “I don’t see why History should stop now,” he explained.31

Indeed, both Leiserson and Millis believed that the Wagner Act had fundamentally transformed the substance of labor relations by shifting the onus of the law to the protection of the right to join unions and bargain. In this respect, they spoke in tune with a generation of reformers and the public as a whole. As Eric Foner has shown, although the New Deal was technically about governmental power, it was widely interpreted as having promoted a new definition of freedom. Hence Leiserson and Millis were not loath, in the Godchaux decision, to remind opponents of foremen’s unions that in 1937, in the Jones and Laughlin case, the Court had elevated the right to organize into a “fundamental right.”32

Consequently, to Millis and Leiserson the question of whether foremen really had the right to organize was moot. “[Foremen] cannot, in a free country, be prevented from organizing,” Leiserson explained. By 1945, writing to Senator Wagner about bills aiming to strip foremen of the protection of the act, Leiserson clearly expressed his support for foremen’s rights under the law: “And just why are supervisory employees not entitled to equal treatment with employers and workers? Why should they be pushed around?” he asked.33 To be sure, Millis and Leiserson were no socialists, and their political thought was undoubtedly moderate in that they sought to reform capitalism, not abolish it. Nor did they conceive of labor relations through the lens of class. Theirs was a democratic idiom that was congruent with the American grain. True to the sociological perspective established by Commons in Wisconsin, they argued that collective bargaining would re-create the harmony necessary to ensure the consent of workers to capitalism.

Still, in their minds this consent should come at a price that few employers, if any, were willing to pay—the recognition of a right that Leiserson defined as “the right of human association, the same freedom to associate with their fellows for common benefit that their employers enjoy in their manufacturers associations, chambers of commerce or trade associations.” Seen from this angle, it is hardly surprising that Leiserson and Millis should have been unwilling to ascribe sociological or organizational limits to this right. In many ways, they were transcending the limits and objectives of the Progressive language of industrial harmony, which was anchored in what seemed to be fixed social entities. Leiserson and Millis’s vision of harmony constituted a total break with class—it was an employment democracy in which anyone working for wages or a salary would have an individual right to organize and bargain collectively.

By contrast, the third member of the board, Gerard Reilly, stood in dissidence precisely because he didn’t see why, based on the reasoning of Millis and Leiserson, all the managers and executives could not organize—in his eyes an absurd idea revealing Millis and Leiserson’s perverse interpretation of the Wagner Act. A former labor reformer who had been involved in the drafting of the Railroad Labor Act—which allowed foremen to organize in that industry—Reilly was by then moving to the right on labor matters. Interestingly, he fell back on the idea that Commons himself had defended in the 1920s, to wit, that foremen were “agents” of the employer, not “employees.”34

A Broad Sociological Transmutation?

To fully gauge the significance of the stance that Millis and Leiserson had taken on the question of foremen, one needs to revert to the hearings organized by the NLRB late in 1941 in the Union Collieries case. For then union officials and businessmen had provided distinct definitions of the term “employee,” with sharply differing implications. In the briefs they filed with the board, the foremen’s union never made the argument that mine bosses were “workers” falling within the ambit of Section 7a like rank-and-file workers. As they knew, in most of the contracts signed by unions in the post-1935 era, including the contract signed by the UMW in the present case, the definition of “mine worker” or “employee” excluded supervisory, clerical, and professional employees. In lieu of a class argument, they contended that in the Wagner Act the term “employee” was not synonymous with “worker,” and that it was broader: “According to the Act the term ‘employee’ … is more inclusive than the term ‘worker.’ The definition is at least co-extensive with the definition of one who is hired. The word ‘employee’ may include professional, salaried or highly skilled employees…. There is nothing in the act to prevent professional or ‘executive’ employees from organizing themselves for mutual benefit and thereby becoming entitled to the guarantees of the Act as any other class of employees.”35

In other words, the brief argued that the Wagner Act allowed for a profound sociological transmutation of unionism. To justify its assertion, the brief submitted by the union’s attorney pointed to the many decisions in which the agency had included white-collar employees of all kinds in industrial units or even in separate units.36 Hence what the MOUA and its attorneys argued was that the Wagner Act should actually be read not as a statute primarily favoring collective bargaining by rank-and-file laborers, but as a law protecting an individual legal right to organize, a right that was not subservient, but prior to, the negotiation of trade agreements and the search for industrial peace. The logic of this argument was that the Fordist production system would be enveloped by a form of social regulation giving anyone employed by a company the right to bargain collectively for wages and benefits. Erected on the basis of the right to organize, the social status of all employees across the hierarchical ladder would be a social product. Significantly, testifying at congressional hearings in 1943, Alice Balmer, the head of the United Office and Professional Workers of America (UOPWA) in Washington, argued that “if the rights and procedures of collective bargaining through organizations of their own choosing can secure … results among industrial workers, then they certainly can secure the same results from administrative, executive, professional and supervisory workers.”37

The communist-led UOPWA soon fell prey to McCarthyism, but the notion that the realm of collective bargaining should expand well beyond the blue-collar world retained its significance. What underwrote this sociological evolution was the growth of white-collar employment. As C. Wright Mills noted in White Collar in 1951, a new class of managers, salaried professionals, salespeople, and clerks now constituted 25 percent of the workforce, while the old middle class of small businessmen and independent professionals was quickly declining. As the foremen’s movement suggested, these white-collar workers were attracted to unionism and collective bargaining because it was a source of social rights and allowed a secure integration in the middle class. Tellingly, in the 1950s, as public employment grew, pressure for an extension of the collective bargaining principles into the governmental administrative offices was growing too. In 1958, Wisconsin was the first state to formally recognize the bargaining rights of its employees.38

Corporate America was alive to this possible evolution. Companies like Chrysler and General Motors had been involved in cases growing out of the CIO’s forays into white-collar ranks. Since 1936, in a number of cases the board sustained the organizing rights of office workers, plant guards, design engineers, and shift engineers. These cases were too few to really constitute even a fledging movement, but they were indicative of the fissures that the Great Depression and Popular Front politics had opened in social groups that were once considered as solidly antiunion. Most important, these cases explain why in the 1940s their executives immediately identified the issue of foremen’s unions as key to retaining their cultural hold on the factory, but also the disciplinary power that accrued from it.39

Yet this issue is best seen in transnational perspective. Again, France offers an important point of comparison: there, the notion of salariat (wage work) had always been rooted in the blue-collar world and did not refer to executive or white-collar workers before the 1940s, largely because the test used to identify the “salariés” was an economic dependency test that highlighted the social condition (condition ouvrière) of the workers. By the late 1930s and early 1940s, however, the legal ground was shifting as public workers, engineers, foremen, and clerical workers argued that they too were salariés, and claimed the protection of the law. At the same time, judges shifted to a new test to identify the salariés, a test similar to the American common-law test whereby any worker placed under the authority of a manager or executive was a salarié. Interpreted broadly, this allowed judges to extend labor law protections to a large number of white-collar and managerial employees and to rule that they too were indeed endowed with the right to organize.40 Notably, the result of this development was the gradual recognition of a third social group in French factories and companies, les cadres, who like the FAA, claimed a separate technical and social identity from the workers and top managers and resorted to organizing to assert it.41

As in the United States, this was a development that displaced and superseded the class struggle rather than reinforcing it. The movement of foremen, engineers, and managers toward a collective organization was owed, as in the United States, to the changing social character of white-collar employment, and it started in the late 1930s in response to the collective bargaining contracts of the Front Populaire. After World War II, it derived additional impetus from its members’ strong opposition to the communist unions. The consequences on the social meaning of unionism were significant; with large numbers of white-collar workers unionizing, the link that had previously existed between unionism and the working-class condition—the idea of social subordination—gradually disappeared. Furthermore, many of the managers who increasingly claimed the social identity of cadre were influenced by Mayoite human engineering and also, quite interestingly, by the American idea that it was possible to reconcile class interests and promote labor peace in the name of productivity—an idea that the United States promoted in France through the Marshall Plan. Cadres saw themselves as buffers and negotiators between businessmen and blue-collar workers, which also meant that the theory of the class struggle based on the ownership of production no longer held.42

By contrast, corporate America held fast to the idea that there were only two social groups on the shop floor—managers and employees—and opposed the idea defended by the FAA, to wit, the recognition of “supervision” as a group that could be inserted between them as a third element. This was because they had nothing to gain from an independent “supervision” with collective bargaining rights. In the United States, collective bargaining had been conceived from the start as a form of cooperation, and businessmen really feared that the legal recognition of “supervision” would foster a kind of producerist ethic among workers and foremen making common cause. “Solidarity of labor is not an empty phrase, but a strong and active force,” a counsel to Ford Motor Company explained. Although they were never able to prove that supervisory unionism was detrimental to production, executives warned members of Congress that American capitalism could not survive without a social order premised on the prerogatives of management.43

Hence from the Union Collieries onward, businessmen insisted that classifying foremen as “employees” was a profound misreading of the Wagner Act, which properly applied to “workers” only, although they did not make it immediately. In the Union Collieries case, the company executives contended that the definition of the term “employee” should be decided in light of the purposes of the Wagner Act, which were to promote collective bargaining between management and “workers.” Hence it would defeat the purpose of the act to classify as “employees” anyone who did not work at the production level. A unified management, they argued, was necessary for collective bargaining to work well.44 The company lost this argument, and two months after the Union Collieries decision had been handed down, with the Godchaux case still undecided, several business associations petitioned the board for a rehearing in the Union Collieries case. This time, company officials, led by Senator Burke, dropped the reference to collective bargaining. Shifting the onus to Section 7a of the law and its preamble, they claimed that a proper interpretation of the Wagner Act would necessarily limit its protection to “workers,” for it was the freedom of association and the right to select representatives of “workers,” not of “employees,” that the law purported to protect in its statement of policy.45

Seen from this perspective, the social character of Fordism took on a much different aspect—the right to organize was not a universal social right of the wage or salary worker, but rather a kind of compensation for factory workers who accepted the strict work regime of the mass-production system. Ultimately, Congress would adopt this view, with the House report on Taft-Hartley mentioning that the production needs of the country required restoring the authority of managers over American companies.46

The Limits of Expertise

In spite of their depoliticized vision of the workplace, Leiserson and Millis were never able to convince reluctant liberals and conservatives that collective bargaining and managerial loyalty were not mutually incompatible in a capitalistic system of production.47 As we saw in the previous chapter, the debate over foremen’s unions gave business executives the opportunity to reaffirm the cultural values—individualism, risk taking, initiative—that had undergirded the managers’ own rise to social dominance since late nineteenth century and that the Depression had briefly seemed to consign to oblivion. Opposing the pluralists’ defense of industrial harmony through reasoned bargaining, conservatives insisted at length on the debilitating effects of the collective logic of unionism.

It matters now to note that the weakness of the NLRB’s institutional position in this debate was patent. It failed to fence off this assault, mostly because it was deprived of the means to do so. Indeed, for lack of social science studies, neither Leiserson nor Millis could really challenge businessmen’s assertions that foremen’s unions made for diminished production and lower levels of safety on the factory floor. Nor could they escape sharp criticism for holding that in mass-production industries, foremen could be at the same time representatives of “employers” and “employees” with rights of their own. Legally, as we have seen, this made sense, but how could this dual status be worked out on the factory floor? According to the jurisprudence they had established, foremen were allowed to organize, but they could in no way take part in the union activities of rank-and-file employees, nor even comment upon them— because doing so would constitute an unfair labor practice. Moreover, the decisions of the board seemed all the fuzzier because it had held that nothing in the act prevented foremen from joining rank-and-file unions, and the fact that foremen in all cases were to form collective bargaining units of their own was not enough to assuage the fears to which businessmen had given rise. In point of fact, both Millis and Leiserson privately expressed the opinion that it would be preferable for rank-and-file workers and foremen to belong to distinct labor organizations—the foremen’s ability to maintain discipline and the worker’s freedom of choice would be easier to secure—but the legal toolbox with which they were required to operate was ill fitted to deploy a general vision of industrial relations and production. Had they been able to mediate disputes, they might have offered independent unions as solutions, but from the NLRB’s vantage point, they could work only within the parameters of the law as it stood.48

Finally, the agency’s decisions were weakened by its court-like procedures, especially dissenting opinions. Such a practice dated back to the early days of the NLRB, when the many lawyers staffing the board had adopted legal procedures that seemed to best represent the impartiality and neutrality of the administrative process. Yet in such a contentious issue as foremen’s unionism, this practice was at cross-purposes with the idea that the agency worked for the public good in a disinterested fashion. Rather, the dissenting opinions written by Gerard Reilly—the third member of the board—further diminished the board’s public standing by legitimizing businessmen’s criticism.

A mere few months after the Godchaux decision, the board’s extensive definition of “employee” fell prey to political pressure, although in fact, Congress did not have to act. In March 1943, William Leiserson left the board to go back to the National Mediation Board, where he could escape the institutional constraints of the NLRB and revert to the work he liked most— mediation. To replace him, FDR named a businessman with no labor background, John Houston, a Democratic representative from Kansas operating an open-shop lumber company. In many ways, this appointment, which had been made in spite of the opposition of union leaders, reflected FDR’s preoccupation with both congressional pressure and the conservative evolution of public opinion. As Business Week noted, “It was Franklin D. Roosevelt, the politician, not the leader of the New Deal, who appointed John Houston to the NLRB…. He took account of the strongly anti-labor sentiment, bowing to it by refusing to appoint a man with a labor background.”49 Indeed, the nomination was decided in the midst of a huge wildcat strike launched by John Lewis to obtain a $2 per day increase and recognition of the rights of foremen represented by the MOUA, which he had integrated into the UMW in November 1942. Meanwhile, antilabor sentiment was rising, as evidenced by the bevy of antilabor laws that were adopted by the states, especially in the South and Midwest, in 1943.

The result of that “board packing” was not long in coming—on May 11, 1943, eight days after the arrival of John Houston on the board, the Maryland decision overturned the Union Collieries and Godchaux decisions, putting foremen outside the province of the Wagner Act. In the majority opinion, Gerald Reilly gave corporate demands of foremen loyalty a strong boost by relying on an opinion penned by a famous New Deal liberal, namely, Benjamin Cardozo. In a famous case bearing on the traditional duty of loyalty imposed by the common law on people having fiduciary duties, Cardozo explained, “Many forms of conduct permissible in a workaday world for those acting at arm’s length are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, then, is the standard of behavior.”50 Reilly thus suggested that because managers did not directly supervise foremen, but rather trusted them to carry out their plans, there was between them the kind of fiduciary duty that Cardozo had eloquently described.

The main paradox of the Maryland Drydock decision is that it was released precisely at the moment when the organizing drive of foremen was gaining momentum, and at the time when the war production effort was in full swing, giving foremen significant leverage. As a result, while industrial pluralists at the NLRB were unable to preserve this enlarged definition of the realm of collective bargaining, foremen forced a reckoning with their movement and their rights through social pressure. Detroit bore the brunt of this militancy. The first strike occurred at the Murray Cy in July 1943 (with 600 foremen walking away), and tensions simmered until spring 1944, when industrial production was crippled by a strike involving 3,300 foremen working for six manufacturers. These strikes, which often enjoyed the support, and sometimes the participation, of rank-and-file workers, had such an impact—about 669,156 man-days lost between July 1943 and November 1944—that by January 1944, the three members of the board asked the legal division to research the possibilities that the law afforded if one wanted to protect foremen as “employees” without questioning the Maryland decision.51

Drafted by two jurists, Mervin Bachman and Guy Farmer, the reports offered a commentary on the legal framework of the Wagner Act suggesting that it was indeed possible to craft a middle ground legal status for foremen. To deny that foremen were “employees,” the Maryland Drydock majority had relied on Section 9b of the law, according to which it is up to the NLRB to decide what bargaining units can appropriately further the objectives of the act. But this did not exhaust the possibilities offered by Section 7a, the scope of which, the two jurists insisted, was greater than collective bargaining, since it protected the right “to self organization, to form join, or assist labor organizations to bargain collectively through representatives of their own choosing, and to engage in other concerted activities, for the purpose of collective bargaining or other mutual aid or protection.” Even if the protection of collective bargaining was not extended to foremen, it was still possible to read the act as protecting the right to organize—one that it did not create, since even foremen enjoyed it at common law—in other ways, for example by prohibiting any layoffs for union activities.

In a sense these two jurists were odd bedfellows. While Mervin Bachman, a graduate of Harvard Law School, was the typical New Deal liberal lawyer, Farmer was a Republican who would later be appointed by Eisenhower to the board. Yet Farmer was a moderate who believed that the government intervened too much in labor relations and should limit itself to helping unions when they were too weak or, alternatively, when their excesses had to be restrained.52 Together, however, they stirred the board toward a recognition that even if foremen were not fully “employees,” they were still “workers and part of labor in the generic sense.” Undergirding this approach was the idea that the right to organize was a “fundamental right,” the protection of which should be extended, in one way or another, to all people working.53 On May 8, 1944, the board handed down two decisions laying out the new contours of the legal status of foremen by finding against two companies whose managers had fired members of the FAA. The two decisions contended that “from the premise that supervisory employees, under the Board policy, may not constitute appropriate units and thus utilize the processes and sanctions of the Act to compel bargaining, it does not follow that an employer many therefore disregard the rights to self organization and to engage in concerted activities for mutual aid or protection.”54

This did not quell foremen’s militancy, and by then, the NLRB’s legalistic approach was in competition with the investigatory powers of the NWLB, which the president had created on January 12, 1940, to forestall labor strife by way of mediation while the NLRB kept enforcing the Wagner Act prohibition of unfair labor practices. The NWLB was under pressure from the military to find a solution to the conflicts involving foremen—a task for which it seemed better equipped than the NLRB, as its tripartite structure included representatives from labor and management and experts representing the public, and it was headed by William H. Davis, a well-known labor mediator with a background firmly anchored in labor progressivism. Davis was a former member of the 20th Century Fund, one of the main institutional sounding boards for industrial pluralism, the philosophy of labor relations pioneered in Wisconsin. In June 1944, having extended its jurisdiction to all foremen’s cases, the board created an investigatory commission headed by another important figure of Wisconsin labor progressivism—Harvard’s Sumner Slichter.55

Released in January 1945, the report of the Slichter Commission was no full-scale endorsement of the foremen’s cause. The report noted that some of the foremen’s contentions—regarding the narrowing gap between their earnings and those of rank-and-file workers and regarding management’s failure to support them in their dealing with shop stewards—were unjustified at the time of the investigation (the commission noted they may have been easier to buttress earlier on). However, the Slichter Commission pointed out the deficiencies of the policy of the “open door,” which high managers and executives touted as the best managerial policy with foremen and supervisors: “The insistence by management that its representatives deal with each foreman only individually and then only about his own grievances impedes, if it does not preclude, the initiation of grievance cases affecting groups of foremen. But even on his own behalf a single foreman may be at a disadvantage in presenting his case. Being one among many, the foreman is individually dispensable and replaceable.”56

This portrayal of the foreman as a helpless individual in the modern corporation cut directly against the grain of managerial talk. Most important, it was coupled with a sharp analysis of the changing nature of foremanship in modern industry. The report analyzed the gradual reduction of the foreman’s role in modern industry to one limited to merely giving orders. Anticipating the work of Alfred Chandler and Daniel Nelson, the members of the Slichter Commission explained that this declining status was a product of the emergence of middle management—and with it modern management practices. Countering corporate managers’ assertions that foremen embodied the enduring spirit of American individualism, the report noted, “Despite the exacting nature of the foreman’s responsibilities, a large proportion of foremen sincerely do not regard themselves as part of management. This is a natural result of the growth of central management and the development of foremen into executors of policies and recommenders of decisions rather than makers of decisions.”57

What the NWLB had done was thus to provide the social science expertise that the NLRB—being confined to a legal approach—had missed from the beginning. In point of fact, the Slichter report was released during the hearings conducted by the NLRB in the Packard case, which the board had selected in late 1944 to review the Maryland decision. By then, much to the chagrin of Gerard D. Reilly, the other conservative member sitting on the NLRB, John Houston, had become a strong advocate of union rights, and he was ready to change his position on the definition of “employee.”58 At the same time, there was internal pressure from men such as Frank Bloom, the head of trial examiners in the Detroit office, to move beyond a purely “legalistic approach” on this question. This was the time when the board finally made a decision in the case that encapsulated all the stakes inherent in the foremen’s movement—Packard Motor Company.59

Taking stock of the numerous strikes that had taken place since the Maryland Drydock decision, in Packard—which was handed down in March 1945—Houston and Millis reaffirmed the progressive logic of the Wagner Act, which was to promote industrial peace. Quoting extensively from the Slichter report, the decision argued that the foreman was not a manager making important decisions but only a “traffic cop” whose social trajectory was similar to that of rank-and-file employees in the 1920s and 1930s. According to the decision, both the logic of the act and the realities of power in the modern corporation led to the conclusion that foremen were “employees” with collective bargaining rights of their own.60

Moreover, the board used the Slichter report to offer a new representation of the social world of the factory that implicitly rejected the idea of a large militant working class, and instead endorsed the business unionism propounded by the head of the FAA, Robert Keys. Foremen, it said, should constitute a bargaining unit of their own because their interests were different from those of workers—they did not do manual work, but had no decision-making responsibilities. At Packard, what characterized them was the work of supervision, their ability to make recommendations, and the fact that they had been trained in the foremen’s school. Thus, the NLRB now offered to grant the FAA what it had demanded all along—the acknowledgment of the existence of a third social group in American factories, namely, supervision. “They consider themselves a middle group between the rank and file on the one hand and the management on the other, and the facts of modern mass production industry, which we have discussed earlier support this view,” the board said.61

This important step toward a possible shift from industrial democracy to an employment democracy based on a multifaceted collective bargaining process was confirmed when Truman, in a widely publicized appointment, named another industrial pluralist to preside over the board—Paul Herzog. No choice could have been more meaningful, for, as a member of the New York State Labor Board, Herzog had supported foremen’s collective bargaining claims. In a subsequent decision condemning Packard for refusing to bargain with the FAA, Herzog reaffirmed the pluralist ideal of peaceful and consensual labor relations: collective bargaining was the solution to, not the cause of, the problems existing between management and foremen: “Fear, perhaps more than self-interest, is a ready cause of industrial strife. In the long run, collective bargaining will tend to reduce both the cause and effect. Bargaining can only succeed, however, if responsible unions representing supervisory employees, once their legal rights are established, recognize the validity of some of management’s special fears, and seek to dispel them by the terms of the ultimate bargain.”62

By the mid-1940s, industrial pluralists working in the reformist vein established by John R. Commons offered the only solution available to restore the traditional American ideal of social harmony because they owned a virtual monopoly on the scientific and academic discourse on labor relations. To the conservative Detroit Free Press, however, the Packard decision was only “peace at any price.” The ruling would be short-lived, the paper predicted, and would obtain only until the end of the war. Indeed, it was clear that with the inevitable termination of government contracts, the NLRB would not have the power to secure this holding by itself. In spite of the prevalence of Wisconsin labor economics and the prominence its practitioners had achieved in the political sphere since the New Deal, what really sustained the expansive definition of “employee” and the faith in social harmony that underwrote it was pressure from the bottom up, not the ability of labor experts to orchestrate labor relations. Once the war was over, the foremen’s ability to exert this pressure would decline.63

Packard Motor Company lost its battle against the NLRB for good in 1947, when the Supreme Court ruled that the NLRB’s definition of “employee” was in tune with the general objectives of the act. Speaking for the majority, Judge Jackson refuted the idea that there was an inevitable contradiction between the foremen’s role in the production process and their desire to organize, and thus supported the industrial pluralists’ analysis: “Though the foreman is the faithful representative of the employer in maintaining a production schedule, his interest properly may be adverse to that of the employer when it comes to fixing his own wages, hours, seniority rights and working conditions,” the opinion read. According to Jackson, the company’s objection was rooted in what he denounced as a “misconception,” that is, the view that because it was entitled to the loyalty of its employees, the company should not let them organize. If that notion had been repudiated for production employees, surely the same could be done for foremen.64

Coming from a judge who was at the forefront of the criticism of the New Deal administrative state, this was valuable support. But the Court’s decision also revealed that the debate over the rights of foremen was not simply one pitting liberals against corporate conservatives. Equally significant was the debate within liberal ranks. Indeed, dissenting from the majority’s opinion in NLRB v. Packard were none other than Justices Douglas and Frankfurter— two notable labor progressives. In a blistering opinion, Douglas couched his dissent in words that conservatives had used throughout the 1940s in their criticism of foremen’s unions. According to Douglas, the act was really meant to apply only to “workers,” “wage earners,” and “laborers”; otherwise the danger of the employers’ “arms and legs” being sympathetic to manual workers instead of directing them would be too strong. The main obstacle faced by the industrial pluralists, then, was that their vision of harmonious labor relations was rebutted by more than a few liberals who were receptive to business claims to managerial loyalty because they remained thoroughly wedded to the free enterprise system.

Indeed, on the foremen’s issue, American liberalism and conservatism easily overlapped. Douglas did not deny that the objective of the Wagner Act was to deflect social antagonism and bring managers and workers closer together. However, this was to be done in the interest of capitalistic production. The Court’s decision, he contended, transformed social relations instead of pacifying them, for it would allow labor and management to form “a solid phalanx,” with “the struggle for control or power between management and labor becoming secondary to a growing unity in their common demands on ownership.” In a sense, Douglas’s dissent exemplified the “end of reform” that characterized American liberalism in the 1940s, for his defense of management stood squarely against the more reformist vision laid out by Adolph Berle and Gardiner Means in their 1932 opus, The Modern Corporation and Private Property, in which they exposed the unaccountability of managerial circles to society as a whole.65 As we will see in the next chapter, in time Douglas’s own vision of industrial harmony though unionism was much less ambitious than that of the rights-based approach of the pluralists, for it applied only to factory workers. In fact, his moderate views would offer significant ammunition to conservatives in their struggle against the NLRB’s efforts to expand the definition of “employee” beyond the blue-collar world.

The legal status of foremen, however, remained fragile for other political reasons. Once the country had been returned to peace, management circles launched a legislative and media campaign designed to amend the Wagner Act, which left no doubt about their commitment to the exclusion of foremen and managers from the purview of the act.66 The failure of the National Labor Management Conference, held in the winter of 1945–1946, enabled the unions to gauge the determination of businessmen to prevent any further development of unionism and sharply limit the scope of collective bargaining as well. As it put a premium on industrial peace, the Truman administration refused to invite the two main foremen’s unions—the FAA and UCTSE, which was affiliated with UMW. The question of foremen’s unionism did figure on the conference agenda, but it was added only after the conference had actually started.

Most important, the conference laid bare the positions of the respective parties on this question. The business representatives of the conference made it clear in their report that the defense of the “right to manage” made the definition of foremen as “employees” simply unacceptable. By contrast, the CIO refused to take a stand on the issue, simply saying that it should be solved by the NLRB and the courts. In fact, in March 1945, the CIO had signed a charter with the Chamber of Commerce in which each party pledged to respect the rights of the other side, which meant that the CIO accepted the “right to manage.” Overall, in the years that followed the war, the CIO was too concerned by the antilabor bills submitted in Congress to defend foremen’s unions. Internal reports on such bills did not even mention the foremen’s question— the memory of the post–World War I debacle was such that the young confederation was focused solely on securing the collective bargaining edifice.67

Meanwhile two dynamics largely reinforced the businessmen’s position. First, public opinion largely turned against labor unions—a movement that was already at work during the war and was largely accelerated by the 1946 strike wave. The congressional elections held in 1946, in which Republicans regained control of Congress, paved the way for labor reform. By then, the argument made in the 1930s in favor of the Wagner Act—that it would foster social harmony because strikes stemmed form the lack of democracy at work—seemed a bit worn and made it difficult to justify protecting foremen’s unions on the same terms.

Second, this growing insistence on industrial peace was compounded by the demands of foreign policy. As early as 1945, Truman insisted on the need to develop commercial exchanges with Europe to avoid a new depression, which meant garnering the support of isolationists in Congress and preparing for the Marshall Plan, which had been in the works, in some form or other, since 1944. Much to the dismay of union leaders, many liberal policy makers consequently shed their unswerving commitment to an unamended Wagner Act. In June 1946, before the congressional elections that returned the Republican Party to majority status, Congress voted on the Case Bill, which contained all of the elements of the Taft-Hartley Bill, adopted a year later, including the exclusion of foremen from the category “employee.” As Lee Pressman, the CIO counsel, noted, “It is the liberals who are capitulating … congressional liberals are not as firm against anti-labor legislation as are reactionaries against the FEPC.”68

In this context, the voices of labor experts such as William Leiserson and Paul Herzog, who testified against conservative bills stripping foremen of their rights, could play only a minor role, for too few liberals were willing to defend the idea that the right to organize was a “fundamental one.” The Truman administration’s response to the Case Bill is illustrative. In his testimony in Congress, labor secretary Lewis Schwellenbach opposed the provision of the law exempting foremen, but did so mostly on the grounds that it would jeopardize industrial peace at a time when the United States could ill afford it. In his draft of Truman’s veto speech, Clark Clifford sounded a similar theme, noting that the exemption of foremen from the Wagner Act was not in tune with the administration’s economic policy, which was centered on increased production.69

Yet administration officials were unable to offer a clear defense of the foremen’s right to organize. As Schwellenbach explained in an internal memorandum,

the question of supervisory employees is a complicated one…. During the Labor-Management conference we had many arguments upon the subject. Clearly the right of supervisors to have the protection afforded to them by the right of organization cannot lightly be thrown aside. The fact is that the supervisors won’t permit it to be thrown aside. On the other hand management is entitled to its protection. Somewhere in the area of disagreement between the parties the line can be thrown with reasonable accuracy.70

Where and why this line should be drawn, however, the Truman administration never said. On June 11, Truman’s veto of the Case Bill did mention that the “full right of supervisory employees to collective bargaining is one that cannot be lightly thrown aside,” but it reiterated the notion that “somewhere in the area of disagreement,” the line could be thrown with “reasonable accuracy.” Going any further would have meant responding to business representatives’ contention that the act should apply to manual workers only and that for philosophical, technical, and social reasons, one should not allow foremen’s loyalty to management to be compromised. This was not a conceptual effort that the Truman administration was willing to undertake. American liberals as a whole had never been able to decide to what extent the right to organize should be seen as a civil right. By contrast, Republican members of Congress doggedly pressed the business case for loyalty. Denouncing the “folly” of allowing supervisors to unionize, the House report on the Taft-Hartley Bill contended, “The evidence before the committee shows clearly that unionizing supervisors under the Wagner Act is inconsistent with … our policy to protect the right of employers. They, as well as workers, are entitled to loyal representatives in the plants. There must be in management and loyal to it persons not subject to the influence or control of unions.”71 The Senate report sounded a similar theme, noting that “it is natural to expect that unless Congress takes action, management will be deprived of the undivided loyalty of its foremen. There is an inherent tendency to subordinate their interests whenever they conflict with those of the rank and file.”72 As a result, in June 1947 Congress adopted the Taft-Hartley Act over Truman’s veto, excluding foremen from the Wagner Act. According to Section 2(11),

The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.73

A profound mistrust of unionism thus continued to characterize American labor law, which accepted it only to the extent that it could be embedded in the logic and structures of capitalistic production. This mistrust, however, was not simply the product of a dominant discourse. It was also vindicated from the bottom up by the very unions that company executives feared might forge alliances with foremen.

The UAW and the Redefinition of “Employee” on the Factory Floor

Legal concepts are not inherently legitimate; rather, they find some of their legitimacy if they can acquire social meaning and thus be the embodiment of a social contract. Thus, the fate of the foremen’s organization drive, and the future of the labor relations regime, was determined as much on the factory floor as in the halls of Congress. Indeed, the Taft-Hartley Act was passed a few days after the FAA had launched a strike at the Ford factories in Detroit. While the company had been one of the first manufacturers to sign a contract with the FAA, it had decided, under the pressure of General Motors and other manufacturers, to put an end to collective bargaining with foremen. The strike began on May 21, 1947, with a sanguine Robert H. Keys (the president of the FAA) predicting that, with over thirty-five hundred foremen out, production would shortly be stopped. A few days later, however, it became apparent that the strike could not be won without the support of the UAW, which was itself involved in the negotiation of a new contract. Once the Taft-Hartley Act had been passed on June 23, Keys had no choice but to ask for the UAW’s help.74 Yet, in spite of the repeated demands of the FAA, the UAW refused to ask its workers to respect the foremen’s picket line and simply tried to mediate the conflict, to no avail—the strike was called off forty-seven days after it had begun, on July 7, 1947.

This negative response might seem surprising in light of the UAW leadership’s own recurring official statements in favor of the foremen’s right to join a union and bargain collectively.75 To several UAW leaders, however, there was a line between supportive declarations and actual assistance that should not be crossed. Throughout the war the UAW had followed the policy of the CIO, which was to ask production workers to walk through the picket lines of foremen but refuse to take up their jobs. In the context of the war, this policy had not hampered the FAA, whose leverage on companies was significant because of the needs of production. Unlike the United Steelworkers of America (USWA), as yet, the UAW had not decided to take advantage of the Packard decision to take in foremen. Indeed, not only had it turned down affiliation demands made by foremen who did not want to join the FAA, but it had even carried a motion urging the CIO not to set up any LIUs for foremen.76 In September 1945, when, in the midst of a foremen strike, the UAW local at Hudson officially voiced its desire to respect the foremen’s picket line, the leadership opposed them, arguing that the foremen’s cause should remain foreign to them.77

In a way this policy was also the legacy of the negotiations for a contract at Chrysler in 1939, when the UAW had come to the conclusion that representing foremen was not possible given the adamant opposition of businessmen. It also reflected the obvious, long-standing hard feelings against foremen, whose arbitrary power had long justified the calls for a democratization of the workplace. Men such as Richard Addes, R. J. Thomas, and Richard Frankensteen were either skeptical about the prospects of an alliance with the FAA or downright hostile to it.78 As for the United Auto Worker—the main publication of the UAW—it had remained conspicuously silent on the foremen’s issue since the creation of the FAA in 1942.

More generally, however, one may say that the CIO unions and their members did not share in the industrial pluralists’ faith in harmony because they had never articulated this discourse. Opposition to social antagonism had always been a thoroughly middle-class endeavor, even if it had engulfed the energy of numerous labor reformers. The unions’ experience of collective bargaining remained anchored in a strong sense of class, and in mass-production industries—as opposed to the skilled trades—this class consciousness had rarely included cooperation with foremen. CIO unions could not ignore the existence of foremen’s unions and their potential consequences on labor relations, but, on the other hand, the fact remained that no common social or political struggle as yet united the two social groups that history had divided for so long.79

Interestingly, this isolation had also made the FAA a union whose institutional culture was geared toward independence. While the first foremen’s union in the automobile industry had developed under the aegis of CIO leader Adolph Germer, the FAA had been created on the assumption that it would be easier for a foremen’s union to become established if it were independent.80 Significantly, in 1946, its leaders had refused an offer of the FAA to become an affiliate of the CIO, which seemed to have anticipated the move for some time.81 Hence, nothing, in the short existence of the FAA, had prepared the two unions for what the FAA now requested—a common fight against one of the major automakers.

Be that as it may, the UAW could not afford to ignore some of the issues attendant on the foremen’s struggle. Walther Reuther, for one, understood the stakes inherent in the foremen’s struggle. With over a thousand workers laid off temporarily because production had become lax at Ford, it seemed obvious to Reuther that the UAW could hardly cohabit with a union whose actions it did not control. Yet more was at stake in the Ford strike than the coherent organization of labor unions in the automobile industry. Indeed, the sanctity of the picket line that American labor unions had taken years to build now seemed in jeopardy, and Reuther did not fail to understand how eerie it was for the UAW to adopt such a tepid policy at a difficult time for American unionism: “As stated before, the foremen’s strike is now in its third week and it is a very serious situation to see our people crossing picket lines as though it were nothing. In the face of some of the anti-labor legislation facing the labor movement it is important that there be established in the minds of our people some respect for authorized picket lines regardless of what union they are.”82

According to Reuther, Ford could not afford two strikes at once. All the UAW had to do was to indicate to the Ford management that no contract would be signed until the foremen’s situation was settled.83 The UAW could not, he argued, take the responsibility for breaking the foremen’s movement, but it would also be in a better position to bargain if the two contracts were negotiated at once. Reuther was not alone in defending this idea. Significantly, the day before the UAW International Executive Board convened to discuss the foremen’s matter, the executive board of the Ford local (Local 600) had sent a cable urging it to announce to the management at Ford that unless top managers bargained with the FAA, the UAW workers would start respecting their picket line.84 But R. J. Thomas and Richard Leonard, who were also Reuther’s political opponents in the UAW, would not budge. While no contract had been signed yet, they had by then an agreement with Ford that the pending contract would include a pension plan, and they were extremely reluctant to jeopardize this provision for the sake of the foremen. Accordingly, they argued that the FAA had not consulted with them prior to starting the strike and that the UAW had no business stepping into it. Coldly, Thomas argued that the FAA should have cast its lot with the CIO in 1946 when the offer was made.85

The UAW thus willfully accepted a very restrictive definition of the term “employee” and provided this legal concept with social meaning on the factory floor.86 Indeed, the defeat of the foremen’s strike at Ford dealt a deadly blow to foremen’s unionism. Shortly after the strike was called off, the FAA lost its fight to get contracts at two other Detroit companies—Midland and Garwood. Many companies then adopted and implemented the policies and ideas hatched at GM or Ford during the war to make foremen feel that they were part of management. The pay differential with production workers was widened. Foremen often received special lunch rooms, parking lots, and badges and were enlisted in extensive training programs. As a manager explained, all these changes aimed to transform foremen’s self-perception, so that “the mere suggestion of organization would outrage his sense of loyalty and obligation.”87

Opportunities Found and Lost

In a noted article, the historians Robert Korstad and Nelson Lichtenstein have argued that the 1940s witnessed a historic missed opportunity—the possibility of a civil rights movement firmly anchored in the energy and ideals of organized labor.88 The foremen’s movement was yet another opportunity “found and lost” to buttress the political legitimacy of American unions. What was lost in the 1940s was not necessarily the opportunity to build a broad, radical labor movement. Whether at the end of the war the social gap between workers and foremen and beyond them white-collar workers had been narrowed remains open to question. But this is beside the point, for the success of foremen’s unions would have durably altered the common sense of the social meaning of unionism by turning the right to organize and bargain collectively into a right that all citizens enjoyed in the American democracy.89 To be sure, the Taft-Hartley Act expressly protected the rights of professionals to organize. Nevertheless, the supervisory exemption and the doctrine of loyalty now hung over this right, as industrial unions learned when, in the 1960s and 1970s, they made a sustained effort to beyond the blue-collar world.

If you find an error or have any questions, please email us at admin@erenow.org. Thank you!