CHAPTER 6

Loyalty Ascendant

On July 30, 1970, the UAW filed a representation petition with the NLRB, seeking to be certified as the representative of the twenty-four buyers working in the purchasing and procuring department of Bell Aerospace in Wheatfield, New York, near Buffalo. A division of Textron, Bell Aerospace was a midsize company employing 4,637 workers whose skills allowed them to sit at the heart of the military-industrial complex. The company produced engines for helicopters and rockets, a cutting-edge technological process that had earned it lucrative contracts related to the Minute Man Missile Program, which was then the pillar of the U.S. Air Force’s defensive nuclear capabilities.¹

Many of the companies taking part in the country’s military apparatus were located in the Sunbelt, well beyond the sphere of influence to which American unions had been relegated since the end of World War II. There, the federal government had massively invested its resources, and conservative ideas thrived along with economic expansion. Yet Bell Aerospace was largely removed from the cultural environment in which advocates of antistatism and individualism labored to remake American society. Sitting across the country from the right-to-work states where Barry Goldwater, Ronald Reagan, and George Wallace had made their first political marks, the factories of Bell Aerospace were a non-Fordist complex in a thoroughly Fordist political and social environment. The UAW was no newcomer there—it had represented production workers since the end of the 1940s and had even secured a solid foothold among office employees and supervisors. Now the company’s engineers and technicians—Local 1286—were the ones trying to expand the ranks of their unions by including procurement buyers.²

Yet even though it had accepted unions, Bell Aerospace’s response to the UAW’s election was adamantly negative. The company was encountering financial difficulties, and it bitterly opposed the new organizing drive, arguing that the buyers were not “employees” but “managers” with no bargaining rights.³ All the same, one year later the NLRB proceeded with the election, which the union won by fifteen votes to nine, but the company immediately challenged the legitimacy of the election in court. As for the UAW, it could not have been surprised at the company’s position. Since it had decided to devote the means necessary to make inroads in the white-collar world in the mid-1960s, creating the Technical Office and Professional Workers Division (TOP) to that effect, the union had come to grips with the problem arising from the exclusion of managers and supervisors from the purview of collective bargaining law—an exclusion to which it had lent its unfortunate support in the 1930s and 1940s.⁴

What made the case of the twenty-four Bell Aerospace procurement buyers so significant, however, was that they were not managers in the traditional meaning of the word. Far from the Chandlerian managers who had engineered the transition of American companies to their modern divisional structure, the buyers represented a new breed of workers, semiprofessionals whose knowledge was essential to productive production, but whose semiautonomy found no relevance in the categories that heretofore had been used to construct the social meaning of work—employee and manager.

“The position, function and fulfillment of the knowledge worker is the social question of the 20th century,” Peter Drucker argued in 1966. To the Austrian-born theorist of the modern corporation, the knowledge worker—a term he coined in the 1950s—was a new development challenging the dominance of managers over work just as skilled workers had challenged the domination of business owners before the advent of Taylorism, and he dedicated himself to contrive managerial practices to ensure these new workers’ loyalty. Further to the left, however, the emergence of this new industrial class excited the hopes of theorists such as Daniel Bell, who coined the term “postindustrial society” to express the idea that these workers might be the sociological mainstay of a new sociopolitical equilibrium.⁵

What the legal case Bell Aerospace suggested, then, was that the making of the postindustrial society would not simply rest with the tasks and self-perceptions of the men and women toiling within its womb—it would also be conducted by the labor experts who still guided the federal government’s visible hand on labor relations. For these men, who saw themselves as heirs to the Progressive tradition established by Commons in Wisconsin more than a half century earlier, the 1960s and 1970s offered as many possibilities and opportunities as the 1930s and 1940s. Indeed, during this period the “new frontier NLRB” feistily laid the groundwork for an expansion of unionism among white-collar workers. Renewing their predecessors’ quest for an “employment democracy,” they also challenged head-on the meaning and breadth of the managerial exemption in American labor law, suggesting that the right to organize and the faithful performance of duty were, in many cases, not incompatible.

In 1970, as the board tackled the Bell case, the stakes were indeed high. As the country moved toward a new economic environment, one in which manual factory workers would be a declining social force while workers working with and developing information and knowledge would compose an ever greater part of the workforce, the future of American unionism depended on the capacity of American liberalism to effectuate the transformation that had failed in the 1940s. By 1974, however, any hope that the legal definition of “employee” would be wrested from its Fordist roots had died, as the Supreme Court ruled in NLRB v. Bell Aerospace that all managers were excluded from the protection of the main legislation protecting the right to organize.⁶ This defeat was not simply handed to liberals by conservative Justices—the project of social harmony through associational freedom no longer defined the ambition of the liberal community as a whole. In the 1960s and early 1970s, liberalism was not simply beset by a conservative assault launched from the unreformed South and West; it was also weakened by the incapacity of some of its agents to transcend its limitations.

Knowledge Workers and the New Struggle for Loyalty on the Workplace

The buyers who elected to join the UAW at Bell Aerospace were a far cry from the automobile workers who had animated the labor movement in the 1930s and forced recalcitrant companies to accept the tenets of industrial democracy. Yet their organizing drive rekindled the battle over managerial loyalty because like skilled workers in the late nineteenth century and foremen in the mid-1940s, they occupied a key role in the production process. As in the 1940s, the company demanded their full loyalty because it exerted over them none of the control that it enjoyed on production workers through scientific management.

The fifteen procurement buyers were in charge of purchasing the materials and devices used by the company in the production of the engines. Every day they received purchase requisitions that they processed according to specific technical and financial imperatives laid out in a procurement manual.⁷ The requisitions were sent to one of the eight supervisors of the Procurement Department, who then passed them on to the buyer with the highest expertise in the technical area of the requisition, for each buyer had a specialty. These requisitions came in three different types. First, they could be a simple request for a part or a tool produced by one company in the United States only, a General Motors engine for example. In this case, all the buyer had to do was to order it and make sure the device was delivered on time. Second, there were “off the shelf” requisitions—orders for basic items available at standard prices such as oil, tools, or technologically advanced pieces such as radars and black boxes that were produced by several companies. To place an order for such items, buyers were expected to use their knowledge of the specifics of the market of each item and favor products meeting high quality standards. However, if the order specified “brand name or equivalent,” the buyers would then assess the alternatives and try to select a cheaper but adequate product.⁸

These two types of orders represented the bulk of the buyers’ work—some nineteen thousand to twenty thousand orders per year. Requisitions for expensive, technologically cutting-edge devices, however, triggered a much longer process. In this case, the buyers advised the company as to whether the item should be bought or made on the premises. If the decision was made to select a supplier that would make the item according to the company’s specifications, the buyers prepared a file presenting the information necessary to launch a bid—technical requirements, quality standards, price, production schedule. To prepare this file, they would assemble an ad hoc team of technicians, engineers, and jurists who all weighed in at different stages in the process, as each part of the contract, from the production methodology to the overall cost, was minutely scrutinized. In some cases, to gain a better understanding of the particulars of the contract that was being negotiated, the buyers would even go with a technician from Bell Aerospace and visit the facilities of the company bidding for the contract.⁹ Most important, the buyers were allowed to pledge the company’s credit up to $5,000. Committing the company to bigger contracts required the approval of a procurement department supervisor. Even then, the buyers retained an important role, as they oversaw the production of the piece by establishing “milestone events”— specific junctures in the production schedule where they would meet with representatives of the company and check on its performance. If a problem emerged, the buyers tried to solve it, renegotiated the contract if it was necessary, and might even prepare for a full-scale cancellation.¹⁰

Still, Bell Aerospace buyers were not certified professionals in the same way as lawyers or physicians; indeed, only one of them was a college graduate. Rather, their trajectory was that of skilled workers who had decided, in the 1950s, to “change collars” and use their skills in a different way. Their know-how rested on the unique synthesis of a specific technical expertise, of knowledge of the legal and commercial dynamics underwriting the market of each product, and of knowledge of the rules published by the Defense Department for the production of military equipment. Bell Aerospace buyers thus epitomized the growing importance of technology and information in the American economy. But this “new industrial middle class,” as management expert Drucker first labeled it, was a variegated lot. In a sense the concept of “knowledge worker” was ill-defined and included a large array of technicians, nurses, engineers, administrators, teachers, and others still who identified neither with management nor with manual workers. Yet there was something common to all of them—unlike lawyers or physicians, their identity at work did not stem from their belonging to a professional association speaking on their behalf and defining their social, technical, and cultural position. Rather, their identity was a function of the unique configuration composing their working conditions.¹¹

Most important, these workers did not fit neatly into an industrial hierarchy premised on the difference between planning (managers) and doing (employees), as they were neither managers who strategized the organization of work nor manual workers whose productive capacity depended on a mental vacuousness inherited from the earliest Taylorist schemes.¹² From this ambiguous social and technical position stemmed an inherent challenge to managerial authority, for the modern enterprise rested on the superiority of management over workers performing extremely segmented work. No close supervision, however, could ensure these workers’ commitment to organizational goals. As Drucker explained, only if knowledge workers internalized corporate objectives and accepted an “implicit contract” to exercise autonomy in the interest of the company would managerial rule be secure—unionism had earned corporate managers the participation of workers in the pursuit of corporate productive goals, but for knowledge workers it was unacceptable. Their values and norms must of necessity be managerial ones.¹³

The conflict at Bell Aerospace largely illustrated this tension between unionism and the managerial quest for loyalty. In its challenge to the NLRB decision to organize an election, the company argued that the procurement buyers were “managers,” not “employees.” Prominent in its argumentation was the fact that the company practiced management by objectives, a managerial technique pioneered by Peter Drucker in the 1950s and 1960s to help managers promote the legitimacy of their business goals among knowledge workers and secure the latter’s acceptance of their authority. Indeed, the buyers set spending objectives at the beginning of each year and devoted much time to finding products that would enable them to meet these objectives.¹⁴ During the investigation organized by the NLRB, Frank Seitz, the director of the procurement department, emphasized that the buyers exercised a large amount of discretion in their spending, for contracts worth less than $5,000, which amounted to a total of $7 million in 1969. Furthermore, when they prepared bigger contracts, the buyers headed a team composed of managers from several services, a prestigious role according to the company’s top managers, who stressed that they were the voice of this team in the negotiations with the vendors. Finally, to defend the idea that the buyers were managers, the company pointed to the fact that nine of them were members of the National Association of Procurement Management, an association created in 1915 after the model of professional associations to cultivate the buyers’ middle-class status.¹⁵

As in the case of organized foremen in the 1940s, cultural assumptions went hand in hand with concrete questions of power on the shop floor. Bell Aerospace top managers feared that if they were allowed to unionize, the buyers would more often than not base their decisions on the logic of collective solidarity instead of favoring the economic interests of the company. “If union considerations were to influence, as they well might, the decisions as to selection of vendors and price, the employer’s business would be in jeopardy,” the company contended in its brief. “The consideration of bids from union and non-union shops, which are not reviewed, could easily result in decisions adverse to the employer’s interest.”¹⁶

Despite the company’s exertions, however, the success of the UAW organizing drive among the buyers reveals that a majority of them favored the collective security provided by a bargaining contract over the individualistic identity of management. In point of fact, their financial responsibilities and their constant interaction with managers notwithstanding, the employment conditions of the buyers differed little from those of organized white-collar workers. Like them, they were given three weeks of vacation once they had worked for the company for ten years, four after fifteen years, and five after twenty-five years. Their medical expenses, medical leaves, and life insurance were covered by the Prudential plan to which the company subscribed, and like the other white-collar employees they subscribed to a pension plan. In other words, they enjoyed no benefits in which either white-collar or blue-collar workers did not share in the divided welfare system that had developed in the postwar era. As for their pay, which ranged from $195 to $270 per week, it did not allow the buyers to claim a superior social status over white-collar and blue-collar employees. In a sense, Bell Aerospace thus symbolized the effects of the deradicalization of the labor movement’s struggle since the 1940s, with the logic of security for which it had fought applying to a large number of blue-collar and white-collar workers alike.¹⁷ But this deradicalization had a sharper edge too—because it encouraged the buyers not to identify as managers. Indeed, it is striking that that they did not feel compelled to have lunch in the managers’ cafeteria—which the top managers strongly encouraged them to do—but usually joined the production workers in the main cafeteria.¹⁸

There was, however, an important difference between the buyers and the other white- and blue-collar workers employed by the company. Intent on making them professionals and managers in the full sense of the word, top managers used the provision of the Fair Labor and Standards Act excluding managers from its protection to refuse to pay them for overtime work. By contrast, engineers and technicians were paid time and a half for every hour they worked beyond the standard eight-hour day and forty-hour week. And it was precisely the question of overtime—along with the murky criteria governing the pay increases they could receive—that led the procurement buyers to seek the protection of the UAW. Moreover, when they prepared for and then led the negotiations over the amounts of large contracts, the buyers would travel far from Buffalo without being compensated for the time spent on the road.

Did Bell Aerospace open a Pandora’s box when it agreed to bargain with the UAW over the status of its engineers and technicians? Company executives suggested this during the NLRB trial. By allowing these white-collar workers to embrace the collective practices of their blue-collar counterparts, the company’s executives had eroded the respect for corporate authority that it needed from such workers. There indeed lay the significance of this localized challenge to managerial identity. If given the sanction of labor law, the decision of these buyers to claim the status of “employee” might undermine the foundations of the sociolegal levee built at midcentury to sustain managerial power, giving unionism greater legitimacy.

Labor law, however, was a serious obstacle. To hedge their contention that the procurement buyers were “managers” lying outside the purview of labor laws, Bell Aerospace executives relied on a long list of NLRB and court cases. Indeed, even before the adoption of the Taft-Hartley Act, the board differentiated systematically between managers and employees, explaining in Ford Motor Company in 1946 that “we have customarily excluded from bargaining units of rank and file workers executive employees who are in a position to formulate, determine, and effectuate management policies. These employees we have considered and still deem to be ‘managerial,’ in that they express and make operative the decisions of management.”¹⁹

The categories that were then adopted to organize labor relations bore the impress of the Fordist regime in that they reflected the separation between planning and doing. In American enterprises geared toward mass production, the identity of middle managers was not at stake—they headed entire departments and made important decisions concerning the organization of work, the commercialization of products, and the company’s financial strategies. As the NLRB’s decision in the Ford case shows, manager and executive were then taken to be synonyms. Consequently, the NLRB had systematically classified engineers, chemists, and other professionals as “employees,” precisely because they were not essential to the task of planning the company’s production and future. Labor law thus acknowledged the difference between authority (the managers) and technological knowledge (professionals who were employees).

Such NLRB decisions had been made over corporate America’s objections, and certainly had not obliterated the strong cultural forces weighing against white-collar unionism. Importantly, as we have seen, the logic of the distinction between planning and doing had prevailed even in the enactment of the Taft-Hartley Act. Congress excluded supervisors from the definition of “employee,” thus extending the managerial exclusion to first-line foremanship: “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.”²⁰ By way of contrast, the Senate rebuked the demands of industrialists and prominent professional associations such as the National Society of Professional Engineers, who sought to have professionals defined as part of management. In its final version, the act protected professionals, whom it defined as follows:

1. Any employee engaged in work (i) predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work; (ii) involving the consistent exercise of discretion and judgment in its performance; (iii) of such a character that the output produced or the results accomplished cannot be standardized in relation to a given period of time; (iv) requiring knowledge of an advanced type in a field of science of learning customarily acquired by a prolonged course of specialized intellectual instruction and study in administration or higher learning or a hospital.²¹

There was considerable overlap between the definition of professionalism and the definitions of management and supervision provided by Congress and the NLRB. Still, in the wake of the adoption of the Taft-Hartley Act, the NLRB further elaborated on the classification of “manager” and “employee” and put limits on companies’ claims on the loyalty of their workers. In 1950 in the New England Telephone case, it ruled that workers in charge of leading job interviews and recruiting new employees were indeed “managers” whose membership in a union was incompatible with the fulfillment of their duties in the interest of the company. This “conflict of interest” test, however, was not sufficient for sifting through all the potential managers, for many of them did not take part in elaborating and carrying out the management of the workforce. Indeed, following the Taft-Hartley Act, American companies made wide use of the title “manager,” which became a weapon in the fight against unions. After 1948, the ratio of the workforce that was classified by American companies as “supervisory” or “managerial” increased substantially—a pattern that was not discernible in other countries such as Germany and Sweden—which suggests that in the heyday of so-called labor-management accord, the struggle for power between these entities did not cease, but evolved into a less visible but equally important struggle over the sociolegal notions defining the limits of each group.²²

The board subsequently adopted a second test, the “discretionary power” test, to determine which workers were involved in formulating and implementing the objectives of the company employing them. At stake in this test was the discretion enjoyed by managers in making decisions. Thus, in 1963, the board ruled that workers who determined the prices of the products sold in a shop were not managers—they only carried out the directives formulated by their superiors.²³ Notably, this test allowed the board to firmly distinguish between the exercise of knowledge and true managerial prerogatives. In 1955, in Westinghouse Electric Corporation, the board decided that six engineers whose task was to determine whether a product was fit to be put on the market and at what price it should sell were not managers because the information they communicated to managers was the essence of their professional work.²⁴

What the Bell Aerospace case revealed, however, was the organizational and technical evolution of American companies in the postwar era made it ever more difficult to distinguish between the exercise of authority characterizing managers and the exercise of knowledge that was embodied in any professional’s work. At first blush the buyers’ work was akin to that of many a professional insomuch as it was intellectual work, which was never routine, and required specific skills and training. They had to display the ability to make important decisions autonomously, and their position in the company’s organization shows that they were not managers in the traditional sense of the word. None of them ran the Purchasing and Procurement Department, and it is significant that they worked under the supervision of eight supervisors whom the UAW did not seek to represent. Moreover, the autonomy of the buyers was only a partial one—they could commit the company to only small contracts, their decision to make or buy had to be validated by one of the supervisors, and even their lunch break was timed.

And yet there were other features in the buyers’ work that suggested that buyers were managers. In assigning themselves cost-reduction objectives, the buyers acted as managers “making operative” the decisions of management. When they assembled a team to prepare the negotiation of a major contract, their task came close to Section 11, to “assign and responsibly direct.” In short, any worker who enjoyed both autonomy and discretion on the job might have to give up the status of “employee.”

Notably, what made the buyers’ case so significant is that since the 1950s, knowledge workers had constituted the fastest growing group in the American workforce, an increase that came concurrently with the adoption of job-enrichment techniques advocated by theorists such as Chrys Argyris and Abraham Maslow, who suggested giving workers a measure of autonomy and discretion on the job to offset the debilitating consequences of Taylorism. Consequently, following Section 11 and the overall definition of supervisors and managers would inevitably put more and more workers out of the “employee” category and in the “management” one. A product of the mass-production enterprise that had budded before the Great Depression, the sociolegal categories “employee” and “managers” were now ill fitted to translate the new reality of industrial organization. At the very moment when the 1971 report Work in America, commissioned by Elliot Richardson, the secretary of HEW, denounced the “anachronism of Taylorism,” the categories used to define the workforce and ascribe American workers a role and a social position were fast losing their social relevance.²⁵

Here was the new frontier of labor progressives, for NLRB experts working within the framework of the sociology of labor established by Commons, who had always rejected class, were well positioned to take advantage of the erosion of the social structures produced by the industrial revolution.

Challenging Loyalty

In the 1960s the NLRB was no longer the storm center that it had been in the 1930s and 1940s. Certainly the agency, and unions in general, still counted determined opponents, such as the law professor Sylvester Petro, who published numerous books to advance the idea that labor law unfairly privileged unions at the expense of the freedom of workers. However, the combined impact of the Taft-Hartley amendments to the Wagner Act and the Republican nominations to the agency had largely eliminated the controversies that had animated the years during which the agency had thrown its weight behind the development of organized labor and particularly the CIO. The Eisenhower appointees to the board had redefined its role as that of a neutral agency with no vested interest in the outcome of labor conflicts. “Politics play a proper role in the enactment of laws, but politics have no place in their administration,” estimated former corporate lawyer Guy Farmer, the chairman of the board. Philip Rodgers, another Eisenhower appointee, agreed that the NLRB’s role was to see to the implementation of the law, not to seek to obtain “social, political or economic” results. Reflecting the fading political colors of the agency, Barry Goldwater, the libertarian conservative senator from Arizona, rejoiced in 1953 that the board was now committed to a “proper interpretation of the law.” In James Gross’s words, the “subversion” of American labor law was afoot, and the NLRB seemed both unable and unwilling to reclaim the mantle of social progress that it had once proudly displayed. When the NLRB tackled the Bell Aerospace case in 1970, however, three elements had fundamentally altered the political environment in which the board interpreted the law, giving the Progressive sociology of harmony through associational freedom a new lease on life.²⁶

First was the Democrats’ victory in the election of 1960, which brought a new generation of industrial pluralists to the board. There is no gainsaying, of course, that the 1960s brought a bittersweet harvest to American unions. Some of them, the UAW, for example, had provided useful groundwork in favor of the democratic candidate in the 1960 campaign, and Kennedy knew to tip his hat to labor in a speech delivered at Detroit on Labor Day, saying that unions were critical to the defense of the national interest. As for labor’s hopes, they stemmed from the fact that in the two preceding years, the young senator had curried unions’ favors by trying to use the impetus of labor reform brought by the McClellan Committee to amend the Taft-Hartley Act and make it easier for unions to sign collective bargaining contracts. Yet labor unions’ political weight was less than their numerical strength might indicate. Even as liberalism ran at high tide, unions were unable to secure the repeal of the right to work provision of the Taft-Hartley Act—a clear sign of the influence that southern conservatives still wielded in the Democratic Party.

Even when the legislative process was closed for labor reform, the venue of administrative power still remained. As secretary of labor, Kennedy chose a well-known labor lawyer with whom he had collaborated in the Senate in the years 1958–1959, the United Steel Workers of America attorney Arthur Goldberg. Goldberg quickly convinced Kennedy to publish an executive order legalizing collective bargaining among federal employees, thus opening a new and important sociological horizon to American unions. Most important, Goldberg, before he left the Kennedy administration to join the Supreme Court in 1962, worked with James Landis on the list of candidates whom the president might nominate to the NLRB. A prominent liberal figure, Landis was a legal realist who had made a strong case for the development of administrative agencies in the 1930s, arguing that they were institutionally better fitted to defend the public interest than was Congress.²⁷ Landis’s presence in the White House shows that there were in the halls of executive power many echoes of the New Deal. While the quest for industrial democracy had disappeared from the forceful social struggles led by the students riding south to force integration of public transportation, the modern liberal presidency still relied on the network of lawyers, economists, and theorists on which it had built its preeminence since the New Deal, and most important, its capacity to govern.²⁸

President Kennedy did not have to wait long before he was first presented with an opportunity to stamp his mark on the NLRB. His nominee, Frank McCulloch, was a liberal whose personal career seemed to encapsulate the American liberal tradition. Kennedy had met McCulloch in Congress, where he worked as the legislative assistant to Paul Douglas, a prominent liberal senator who had taken an active role in New Deal politics in the 1930s. A 1930 graduate of Harvard Law School, McCulloch had first moved into social work, devoting his time to the Council for Social Action of the Congregational Christian Churches of America. McCulloch thus followed a family tradition—his mother, a suffragette, had studied with Jane Addams and spent long years working to uplift the poor. Then in 1946, McCulloch started working in the Senate, a job that he held alongside an appointment at Roosevelt University, where he taught industrial relations and created a program to train unionized workers.

Close on the heels of McCulloch’s nomination, Kennedy nominated Gerald Brown. Trained as a historian in college, Brown studied economics in Chapel Hill with Harry Wolf, a former student of Harry M. Millis at Wisconsin. Under Wolf’s aegis, Brown had written a master’s thesis on the economic aspects of the Wagner Act. In 1938, he worked at the NLRB as a field examiner for the Atlanta regional board, which allowed him to take part in Operation Dixie—the unsuccessful large-scale organization drive launched by the CIO to break the hold of conservative democrats on the South. Brown was then promoted to director of the regional bureau of San Francisco, where he remained until his nomination. Like McCulloch, he was nominated for a second term in 1966.²⁹

Kennedy’s final nomination, by contrast, revealed the growing impact of the civil rights movement. The first African American to sit on the NLRB, Howard Jenkins was a moderate Republican who taught labor law at Howard University for ten years before joining the Department of Labor in 1956 as general counsel. Like that of Gerald Brown, Jenkins’s career showed that the battles for racial and social inequality were not necessarily incompatible. While he was at the Department of Labor, Jenkins lent his legal abilities to the civil rights movement, but he also collaborated with Arthur Goldberg, who was then the attorney of the United Steel Workers of America.³⁰ Jenkins’s nomination revealed the importance that political balance had acquired at the NLRB, and Johnson was careful not to upset this balance by nominating a Republican to the board in December 1964, Sam Zagoria. A journalist by training, Zagoria joined the Washington Post during World War II, and quickly evinced a strong interest for labor questions. Running against the tide of public opinion, which was then turning against unions, Zagoria became the head of the local section of the American Newspaper Guild, one of the few white-collar unions to thrive in the Popular Front culture of the New Deal, and then took a leave of absence to attend John Dunlop’s classes at Harvard, where he fine-tuned his understanding of industrial pluralism. In 1955, Zagoria was hired as a legislative assistant to the Republican senator Clifford Case, and then he devoted much of his time to the investigations of the Labor and Public Welfare Committee, where he served as a precious link between Democrats such as Kennedy and liberal Republicans.³¹

Kennedy’s and Johnson’s nominations to the board thus demonstrate the bridges linking the intellectual and political liberal communities of the New Deal and of the Great Society. To be sure, industrial democracy had long disappeared from political debates, and the concept no longer animated the energies of youthful reformers. It remained in the guise of “industrial relations,” which was a political culture, that is, a set of ideas whose influence was underwritten both by a social world made up of labor leaders, arbitrators, and professors and scholarly publications and by an institutional matrix protecting collective bargaining—the Industrial Relations Research Association, various academic programs, the NLRB, and the National Mediation Board, whose authority ensured the theory’s social and political relevance.³² Most important, the theory of industrial democracy had remained equally stable, as these experts conceived of labor relations in much the same way as their forebears. Democracy and cooperation were still the twin pillars of a policy aiming at promoting social peace. Taking stock of a decade of collective bargaining at the end of the 1960s, Gerald Brown thus extolled the philosophy that had developed at Wisconsin at the turn of the twentieth century in words that could have been used in the 1930s: “Collective bargaining as it has evolved in the United States is the best available method of resolving our industrial disputes consistent with our democratic system of free enterprise,” he explained.³³

These nominations led to the emergence of a new agenda at the NLRB, the second element fueling the rebirth of the struggle for harmony through collective bargaining. The strong intellectual and political ties between the Kennedy and Johnson appointees and the previous generation of industrial pluralists was manifested in a shared vision of the role of the NLRB, one fully in tune with the vision of reformers such as Leon Keyserling in the 1930s. Kennedy and Johnson appointed board members who argued that the mission of the NLRB was to encourage unionism because the public interest was vested in collective bargaining. These industrial pluralists thus remained wedded to the idea that the board should act like a legislator, not a judge. Rebuking the arguments advanced by conservatives since the 1940s, the chairman of the board, Frank McCulloch, denied that the general principles of adjudication of law should apply to the NLRB. Rather, McCulloch believed that the board was an agency in charge of promoting a right, and that to do so it had been given a wide mandate—to act on the preamble of the Wagner Act—a mandate typical of the policy-development mission usually given to administrative agencies. “The Board is not a court. The statute gives it affirmative authority which I would call promotional authority. It uses the words ‘promote the practice of collective bargaining,’” Frank McCulloch later recalled.³⁴

In the 1960s this perspective led to a jurisprudential activism symbolized by the board’s fresh attitude toward unfair labor practices. In the Plochman and Harrison case, it ruled that the company’s decision to show And Women Must Weep, a National Right to Work Committee film, was an unfair labor practice. The film told the story of an untruthful labor leader leading a strike that destroyed the local economy, plunging most workers into poverty.³⁵ The significance of the case did not simply stem from the fact that the drive to protect employer freedom of speech had fed the impetus to adopt the Taft-Hartley Act—in 1960 in California, employers had obtained the prosecution of a union for “libel by innuendo” after it had shown a controversial film titled Poverty in the Valley of Plenty.³⁶ Determined to bolster unions against corporate opposition, the board also reversed a 1953 decision to rule that if an unfair labor practice caused the defeat of a union in an NLRB election, the company should bargain with the union nonetheless. To cap it all, in EX-Cell-O Corp., the Kennedy and Johnson appointees ruled that when a company refused to bargain in good faith, the collective bargaining contract should apply retroactively—any wage increase should apply to the period that had elapsed since the NLRB election.

Departing from the principles established by the Eisenhower board, the Kennedy-Johnson board sought to make labor law evolve congruently with American society and the economy to promote collective bargaining.³⁷ In a speech delivered at Washington University in 1964, Gerald Brown reminded his audience that the work done by the NLRB was part of the long institutional history of the theory of delegation. Like the Federal Trade Commission, the Interstate Commerce Commission, and the Fair Employment Practices Commission, the board sought to achieve a political and social objective— labor peace. The logic of delegation, Brown went on, was to rely on professional expertise, which meant in the case of the NLRB the capacity to understand the origins and meanings of social conflicts. “One doesn’t become an expert in labor relations by merely reading records of cases involving unfair labor practices,” Brown lectured. “The chief value of expertise is supposed to be flexibility in coping effectively with changing conditions.” The idea of the social investigation had always been at the heart of the theory of collective bargaining—it had been developed in Wisconsin by Commons and his followers—and it clashed head-on with the idea that the board should behave like an neutral tribunal. But what is striking is that in 1964, the attendant theory of legal realism, one that had animated the reformist impulse of Progressives and New Dealers, remained at the heart of pluralist thinking and justified developing an industrial jurisprudence anew. Brown went on, “The development of life brings change and compels modification of many rules…. It was Oliver Wendell Holmes who said that ‘the real justification for a rule of law is that it helps to bring about a social end which we desire.’”³⁸

Delivered against the backdrop of the Supreme Court’s increasing protection of racial equality, the speech must have struck a responsive chord, even if a strong anti-institutional attitude pervaded the youth, who were inclined, after C. Wright Mills, to see labor unions as an interest group resisting social change.³⁹ Indeed it is no surprise that Brown should have defended the board in front of students. But Brown’s speech was more than a plea to remain relevant to the left—it reflected a fresh activism, a determination to remain abreast of current economic issues.

No case better exemplified the board’s determination to adapt collective bargaining to changing conditions than Fibreboard. This case arose out of the decision made by a Californian company to subcontract the maintenance of its machinery, which had been performed by machinists affiliated with the United Steel Workers of America. The company made no secret of its motive, which was to save some $25,000 per year. To that effect, it had chosen a company that planned to use fewer machinists and to give them inferior fringe benefits than Fibreboard. In 1959, the Eisenhower appointees had agreed to this plan, but Brown and McCulloch expressed their opposition to the ruling as soon as they moved to the board. Working with John Fanning, the most liberal of the Eisenhower appointees, they reversed the 1959 ruling, arguing that subcontracting had become such an important feature of the nation’s economic life that it should now be subject to collective bargaining.⁴⁰ The board confirmed its determination to fight emerging antiunion ploys when it ruled that a company had no right to close shop to avoid bargaining with a union.⁴¹

With decisions like these, it was no wonder that the 1960s were particularly difficult years for the agency. In similar fashion, the board’s new activism coincided with the renewed corporate assault against unions, and companies sometimes refused to abide by the board’s new decrees. Symbolized by J. P. Stevens’s struggle against the board, this opposition reminds us that there were many tensions, as well as new challenges, in labor relations in the 1960s.⁴² The battle over the legal definition of worker fit within a larger framework of perils and possibilities as businessmen and unions, labor experts, and other political elites debated the merits and future of the collective bargaining regime created in 1935.

Finally, it was the social context that nourished the pluralists’ promotion of collective bargaining. In the 1960s, the new directions that collective bargaining should take were indicated by the new political struggles led by American youth. Chief among these was the fight for racial equality that had rocked the nation since the Montgomery movement in 1955. In 1964, the board adopted a new definition of the notion of fair representation in labor law in Hughes Tool, stating that unions that did not adequately represent the interests of African American workers were guilty of an unfair labor practice, but the board withheld its decision until the Civil Rights Act was adopted, lest it be used against the creation of the Equal Employment Opportunity Commission.⁴³ In the same fashion, Brown argued that the growing importance of environmental and consumer questions would require an evolution of collective bargaining and thus a possible redefinition of managerial prerogatives: “Workers and their unions have not gone into the questions of safety of products, fairness to consumers, pollution and such, and employers may assert unilateral control over such items as within their ‘management rights,’” he noted. “But having observed some of the enthusiasm and vigor with which the young are tackling these environmental issues, I can only think some of this will spill over into collective bargaining.”⁴⁴

Beyond these immediate struggles, however, there was one issue that figured prominently in industrial pluralists’ thinking, namely, white-collar unionism. According to Sam Zagoria, the budding white-collar movement, along with the shifting structures of the American economy, was the most significant feature of the economic environment in which the NLRB was to implement the theory of collective bargaining, and Zagoria went as far as organizing seminars at the board to convince his staff that they should work to adapt to these new conditions.⁴⁵ Soon enough, this concern was manifest in the board’s evolving jurisprudence. The board first addressed the status of white-collar workers through the question of the size and scope of bargaining units. In 1944, it had ruled in the Metropolitan Life case that in the service industry no less than in the manufacturing one, bargaining units should be as large as possible—they should, the board then prescribed, gather all the workers of a company within a specific state. The rule made sense because in manufacturing, the mass-production economy literally “produced” a working class whose socioeconomic homogeneity underwrote the meaning of “employee,” and whose interests were best defended with large units reinforcing the bargaining position of labor leaders. At the beginning of the 1960s, however, it was increasingly apparent that this rule had become an obstacle to the development of unionism among office employees, for unions encountered significant difficulties in gathering workers who did not share a work experience. In two important decisions handed down in 1961 and 1962, the board ruled that in the insurance and retail industries, bargaining units could represent groups of employees as small as a given store or a even a mere group of staff. “The realities were that the Board’s decisions were frustrating the desires of employees to bargain collectively in those industries,” Brown told a group of business and administration students in 1964. “Insurance agents and retail chain store employees have now been given the same rights as employees in other businesses.”⁴⁶

Such efforts take on their full meaning in the context of the sociological debate then raging about white-collar employees. While efforts to organize white-collar employees dated back to the early post–Civil War period, unionism really became significant outside of the blue-collar world after the 1930s. From the “unrest in odd places” that arose during the Great Depression to David Keefe’s long exertions to organize the stock exchange workers in the 1940s, the creation of Engineers and Scientists of America (ESA) in 1953, the strikes of engineers at Westinghouse and General Electric, and the growth of public-sector employees in the 1960s, an arc of white-collar struggles seemed to suggest that unionism was poised to secure a foothold beyond the blue-collar world.⁴⁷ White-collar union membership had doubled in the 1940s, and increased from 1.4 million at the beginning of World War II to 2.75 million in 1960 and 3.2 million in 1968, at which point they represented 16 percent of all union members and 11.4 percent of white-collar employees. Pictorial representations also told a part of this cultural process, as the notion of the white-collar worker as “organization man” was challenged in comic books offering caricatures of office life with characters such as Mr. Dithers and Bugglebottom bossed around by gruff superiors.⁴⁸

This was of course a modest pattern of growth, but it became a staple of the evolving labor economics expertise, filling hundreds of pages in labor relations and sociology publications. In a sense, the attention first stemmed from the high stakes that both corporate America and blue-collar unions discerned in the prospect of white-collar unionism. The former believed that the rise of unions in the office and the drawing room could be avoided if the mistakes made in the 1930s were not repeated. As early as 1957, the National Association of Manufacturers published booklets such as “Satisfying the Salaried Employee” and “Strengthening Ties with the Salaried Employee,” which were designed to help their members adopt the right personnel policies, a practice that would last through the crisis of the 1970s, when some polls revealed that nearly half of all middle managers held favorable views of unions.⁴⁹ Unions, by contrast, looked with equanimity at these potential new members. Although they represented more than 30 percent of the workforce, American unions did not feel so secure that they could slight the prospect of recruiting professionals who had no historic ties to the picket lines, bloody strikes, and heroic moments that made up the labor lore. “The labor movement must break out of its ‘blue collar shell’ or face the prospect of becoming a declining numerical force,” a research report of the AFL-CIO pithily explained in 1960. Indeed, by 1960 unions had started declining in absolute terms, and the changing composition of the workforce (white-collar workers composed the larger part of the workforce as early as 1960) was inauspicious for labor leaders.⁵⁰

To labor economists, however, the white-collar union movement presented a challenge, to wit, understanding why a social group that had historically harbored a middle-class individualist mentality and always identified with management now seemed more and more willing to join unions. The challenge was most important because, as Clark Kerr, John Dunlop, Frederick Harbinson, and Charles Myers argued in 1955, managers and professionals were now an “economic resource,” one that had become essential to economic growth.⁵¹ David Moore and Richard Renck, two scholars associated with the Industrial Relations Center at the University of Chicago, agreed with the deans of the profession: “Because of the central position of technology in modern industry, it would seem that the professional employees, including engineers and natural scientists, should be a satisfied, well integrated group. Evidence … indicates that these employees tend to be chronically frustrated and dissatisfied.”⁵²

They answered this question within the framework of the dominant functionalist sociological school, emphasizing social roles and common values. Prominent in their analyses was the closing gap between white-collar workers’ earnings and those of blue-collar workers, and, finally, their quest for security. Most important, however, is what Jack Barbash called the “socialization of the work situation” and what Clark Kerr and his colleagues called “the inevitable structuring of the managers and managed in the course of industrialization.” In a way that somewhat anticipated Harry Braverman’s work— albeit with a much different political flavor—they argued that as white-collar workers grew in numbers, professionals and technicians gradually lost their autonomy and felt the corrosive edge of the managerial imperative on their individuality. Thus in The Scientist in American Industry, a study of research scientists working in a laboratory, labor economist Simon Marcson estimated that the confrontation between traditional professionalism and industrial discipline was a source of strain to which managers were not alive.⁵³

So far we are covering familiar ground, for these are the very dynamics that had led foremen to organize. There is, however, a fundamental difference between the two movements. The FAA emphatically contended that foremen were not managers. Indeed, they argued that they constituted a third group, supervision. By contrast, what most surfaced from the study of white-collar unionism was that in the 1960s, the social meaning of management was in a state of flux. Professionals needed to organize to defend themselves, but even as they responded to the allure of collective action, they did not shed their identity as managers. Thus airline pilots, who were 90 percent organized, claimed that they retained many of the basic managerial norms—an interest in the well-being of the company, a feeling of superiority to most blue-collar workers, an abiding individualism—none of which were incompatible with their decision to look after themselves as a group.⁵⁴ And in a pamphlet published to defend its choice to act as a labor union, ESA provided a rationale that was most germane to the case of Bell Aerospace buyers, and indeed to the future fate of labor in the United States:

Are we really a part of management? Of course we are. At least we are in the sense that our work, our recommendations make vital contributions to the operation of the company and to the business decisions which must be made. However the shop foreman, the bookkeeper, the plant guard, the shop worker who institutes suggestions and the craftsman who takes pride in his work all make vital contributions to the operation of the company and assist top management in its job. Thus all are, their way, a “part of management.” The manager who proclaims that “engineers are part of management” however, usually has another thought in mind. He is thinking in terms of the “officer corps” concept. Unconsciously or consciously the element which he is emphasizing is that engineers should not be concerned about their welfare and self interest. They should be confident that management will take care of those matters adequately if not handsomely.⁵⁵

It seems hard to imagine a better case for the idea that the legal tension between loyalty and unionism had run its course. Here lay a post-Fordist definition of management, one that ESA defended because professional associations were not “so constructed as to be able to serve the interest of the employed engineer in specific situations concerning his employment conditions.”⁵⁶ Thus, from the white-collar struggle arose a legal question with which industrial pluralists felt at ease—whether one could reconcile management and job conscious collective actions in labor relations. Soon this undertaking would materialize in the case of the Bell Aerospace buyers, but first it blossomed in an earlier case involving the rights at work of a man named Jack Lenox.

An electrician employed as an adviser by a company selling electricity in eastern Arkansas, Lenox seemed to be the perfect case in point to ease the tension between unionism and loyalty that the Taft-Hartley Act had inserted into American labor law. A member of the International Brotherhood of Electrical Workers (IBEW), he exemplified the question with which the NLRB was faced—whether knowledge workers would enjoy the associational freedom that had always characterized skilled work in America.

Lenox was employed by North Arkansas Electric, a Salem, Arkansas, company that employed fifty-five workers and was divided in seven branches. Three bureaus were responsible for technical maintenance (Salem, Evening Shade, Mountain Home), while the bulk of the work was divided into four departments, management services, member services, office services, and engineering services. Lenox worked in the member services of the Mountain Home bureau, were he was the only adviser. The other adviser worked for the Salem and Evening Shade bureaus.⁵⁷

A member of the National Association of Electricity Inspectors, Lenox was not formally part of the company’s management. The manager of the Mountain Home bureau was his supervisor. Yet he exercised numerous responsibilities—twice a year he attended a meeting with the general manager and the managers of each department, during which they discussed the development of the company’s services and its overall strategy. Although he did not bear the title of manager, Lenox took part in these discussions as a technical advisor and made concrete suggestions as to the possible evolution of the company’s rates. Once a year, he also took part in another meeting with the managers on the budget. He was also in charge of the company’s advertisement strategy and controlled the use of money allocated to it. Finally, with these responsibilities came social responsibilities, as Lenox represented the company in the local meetings of the Rotary and Lions clubs.

Lenox’s status in his company became contested in August 1966, when the IBEW launched an organizing drive among the company’s workers. One of the managers then asked Lenox to remain neutral in the certification fight. “I considered him a management employee and part of the management team. I felt that as a member of management we had the right to ask him to remain neutral and not to take sides,” the manager explained.⁵⁸ Indeed, North Arkansas managers were alive to Lenox’s past as a member of the IBEW when he lived and worked in the North. In moving to Arkansas, Lenox had moved to a region where, in the words of James Gregory, “plain-folk Americanism”—a mixture of rugged individualism, independence, evangelicalism, and anticommunism—prevailed, leaving little room for the development of unions.⁵⁹ As Lenox explained, however, his reasons for leaving his union job and moving South had nothing to do with the union itself, and he quickly decided to join the organizing drive. On September 8, 1966, the union won the election organized by the NLRB. On the September 27, Lenox was fired, whereupon he petitioned the board, claiming North Arkansas was guilty of an unfair labor practice.⁶⁰

Was Lenox an “employee” within the meaning of the Wagner Act? The board’s decision reveals fully the problem raised by the case of knowledge workers. Lenox was not a manager in the traditional meaning of the word, but he did take part in formulating and effectuating his company’s policies, and enjoyed discretion in doing so. According to Lowell Goerlich, the board’s trial examiner, the discretionary power test was useless in the Lenox case. Accordingly, the board refused to classify Lenox as a manager. Without denying the importance of his responsibilities, board members argued that Lenox’s autonomy and independence on the job were not wide enough to warrant his exclusion from the Wagner Act. His autonomy was limited by decisions made by the company’s managers, and Lenox responded to a supervisor:

The record is barren of any competent proof that Lenox exercised discretion absent any established policy or regulation of the Respondent. In fact the Responsibilities and Authorities established for electrification advisors in the position description provide that the electrification advisor “within the limits of established policies, budget, legal requirements, and authority delegated by the Manager of Member Services assumes responsibilities and performs the following activities.”⁶¹

To reach the conclusion that Lenox was an “employee” entitled to bargaining rights, the NLRB had thus modified its “discretionary power test” to resolve the tension between the exercise of authority and that of knowledge. The phrase “absent any established policy or regulation” indicated that regardless of their responsibilities, workers who did not work fully autonomously, workers who had supervisors, might not be classified as “managers” any longer. In a few words, the board provided a new definition of “employee,” overturning a long line of precedents going back to the Wagner Act in order to allow the act to include the growing number of knowledge workers. Tellingly, the text of the decision highlighted the democratic ambition of its authors. “The Act is to be liberally and broadly construed to accomplish its purpose, among which are ‘protecting the exercise of full freedom of association and of self organization,’” the decision said. “In that the rights provided to individuals by the Act are in the public interest, a deduction which denies an individual the protection of the Act ought to be avoided unless compelled by the clear language of the statute itself.”⁶²

Rebuking the board’s democratic ambitions, the company refused to abide by the decision and sought redress in court. After three years of legal proceedings, in June 1969 the Court of Appeals for the Eighth Circuit handed down its decision. Reviewing the responsibilities held by Lenox, the court held that the NLRB’s decision was untenable and reached the conclusion that the board members had sought to avoid; in light of the board’s jurisprudence and the tests it had long developed to differentiate between managers and employees, Lenox indeed was a manager whose responsibilities were incompatible with unionism. Moreover, the court remanded the case to the board with what it called “specific instructions”: “to determine whether or not the discharge of Lenox, as a ‘managerial employee’ was or was not violative of the Act.”⁶³

The court’s message was clear: there was to be no progressive evolution of the concept of “employee.” If the board wanted to reconsider its long-standing policy of excluding managers from the purview of the Wagner Act, it should do so openly. This, however, was less than a friendly invitation, for in asking the board to determine whether the decision to fire Lenox, a manager, constituted a violation of the act, the court launched a debate over the meaning of the supervisory clause of the Taft-Hartley Act and the idea that the loyal and effective representation of the employer was not fully compatible with the participation in a union.

The board’s response came in August 1970. In its new decision, it officially abandoned the policy to exclude managerial employees, noting that “managerial employees, traditionally excluded from bargaining units because their interests are more aligned with management than with rank and file employees … might nevertheless be ‘employees’ within the meaning of the Act and entitled to the Act’s protection.”⁶⁴ Notably, this ruling was based on the decision to abandon the discretionary power test. From now on, only the “conflict of interest” test would be used. This was the most progressive interpretation of the act that the board could have given, and it left a serious dent in the doctrine of managerial loyalty. To be deprived of bargaining rights, a manager would have to be directly concerned with the management of the workforce. Since this was not Lenox’s case, his dismissal was a violation of the Wagner Act. One year later, the NLRB applied this new reasoning in its decision regarding the procurement buyers employed by Bell Aerospace—although they were managers, they too were to enjoy the full protection of the law.

The Chameleon of Industrial Pluralism

This is not suggest to say that the labor experts working at the board in the 1960s and the early 1970s sought a radical transformation of the workplace that would thoroughly advance the cause of American workers and their quest for collective independence. As a number of historians and legal scholars have argued, industrial pluralism placed such an important emphasis on labor peace that its practitioners were sometimes willing to contemplate and resort to means to demobilize labor militancy, and one cannot appreciate the nature of the labor politics of these experts labor politics if one does not come to terms with their open rejection of class consciousness, which remained the basic feature of their approach to labor relations.⁶⁵

In the 1960s and early 1970s, labor experts rejoiced at what they took to be the success of the project that the first generation of labor economists had started in the 1930s—to find an alternative to the class struggle arising from the workers’ quest for economic independence. Thus, the most prominent of labor experts, John Dunlop, remarked, “Our collective bargaining system must be classed as one of the more successful distinctive American institutions…. The industrial working class has been assimilated into the mainstream of the community, and has altered to a degree the values and directions of the community, without disruptive conflict and alienation and with a stimulus to economic efficiency.”⁶⁶ Defending the board against conservative criticism in 1971, Gerald Brown went Dunlop one better, arguing that “many scholars have remarked that the stabilizing and humanizing effect [of the NLRB] had provided suitable alternatives to the class struggle for reconciling conflicts of interests and consequently saved capitalism from the fate predicted by Marx and seen in Russia,” a statement that faithfully echoed some of the arguments deployed in the 1930s to push for the adoption of the Wagner Act.

There were in such statements echoes of a kind of American exceptionalism that was fully in tune with the cult of consensus that characterized American society until the racial struggles of the 1960s, a consensus expressed in the dominant pluralism of the day. Symbolized by the work of Robert Dahl, a former advocate of planning, the idea that American society was best described as a “polyarchy” had become common coin, enveloping many a former leftist like Seymour Martin Lipset and Daniel Bell. In point of fact, industrial pluralists were at home in this deradicalized environment that celebrated consensus over strife. Indeed the idea of collective bargaining was fully compatible with the theory that the public interest was best served by the competition of various groups, which in turn implied that labor relations were thoroughly depoliticized. As historian Nelson Lichtenstein has argued, “Free collective bargaining was exactly that, which is why the AFL-CIO, the State Department, and the Voice of America hailed its depoliticized virtues around the globe.”⁶⁷

For industrial pluralists, then, the political culture of the midcentury, one largely influenced by the Cold War, did not stand in opposition to the reformist schemes of the Progressive Era. Rather, it reinforced their belief that collective bargaining promoted harmony by deflecting class feelings. To be sure, by the 1960s this achievement was itself contested, as a number of voices rose on the left to lament the growing political vapidity of organized labor. Collective bargaining was useless, such books and articles argued, because unions had lost the ability to project a political ambition. The energy was gone.⁶⁸ Yet labor experts were quick to dismiss these dissenting voices. Arthur Ross, who taught industrial relations at the University of California, delivered a sobering response, arguing that the critics would not be so disillusioned if they had not harbored “unwarranted illusions that the labor unions would bring about basic political and social changes in the United States.” And Ross continued, “Really it is not surprising that unions have been absorbed into the fabric of a business economy, and that collective bargaining has become a business function devoid of preternatural significance.”⁶⁹

This context is important if we are to understand why and how it was possible to attempt to limit and reframe the conservative doctrine of loyalty. Moreover, it matters that to the pluralists, the structure of the workplace and social conflict at work were severed because of a variety of sociological factors that the literature on white-collar unionism in the 1950s and 1960s highlighted—while the main argument was that such unions were on the rise, it was expected that they would also fundamentally transform the political outlook of the existing labor unions, for white-collar employees elicited none of the concern for general social change that animated the radical moves of the 1930s. Rather, this literature emphasized the possibility to combine the technique of collective bargaining with a traditional white-collar ideology.

This was visible in the stance adopted by the ESA and the Air Line Pilots Association, but also in case studies such as Michael Harrington’s lesser-known The Retail Clerks (1962). As Clark Kerr and colleagues argued, the key to understanding the white-collar worker in the postwar era was the growing tendency to organize “by occupation and skill”—a tendency that meant that the “ideological labor movements as we have known them will have passed.”⁷⁰ The trend toward professionalism was indeed an object of interest to many sociologists at the time, and Arthur Ross, echoing the identity struggles of the day, used the phrase “professional mystique” to analyze the specificity of the outlook of most white-collar workers seeking to organize, while Bernard Goldstein saw in the development of nonaffiliated white-collar organizations the possible seedbed of a new “union center in the European sense,” that is, “a federation of salaried employees, separate and distinct from the unions of production workers and skilled craftsmen”—which was precisely what the FAA had tried to do in the 1940s. All in all, white-collar unions evinced a job consciousness that cannot have taken the heirs of the Wisconsin school aback.⁷¹

While the new frontier NLRB was thus walking in the footsteps of William Leiserson and Harry Millis, there was one significant difference between this struggle for associational freedom and the previous one—the UAW was now thoroughly alive to the need to expand the realm of collective bargaining beyond the limits of blue-collar solidarity. In advancing this moderate vision of the postwar workplace, labor economists and the NLRB were fully in tune with the arguments marshaled by the UAW in its efforts to convince white-collar workers to join the union whose leaders had once been at the forefront of the critique of capitalism. “Your needs are different,” a TOP leaflet explained, “and the UAW provides Special Solutions!” Among those were the promise to seal white-collar workers off from blue-collar members, to let them have their own membership meetings, their own bargaining committee, and specifically trained representatives. In a speech detailing the rationale behind the creation of TOP in 1965, Hubert Emerick did not try to hide the sociological gap separating most white-collar workers from their blue-collar counterparts. The fact remained, Emerick explained, that “a great deal of our failure stems from the idea that there are no differences in interests between the employer and the employee…. This conflict of interest is not subversive not immoral nor unethical. The theory of our constitutional form of government rests on the notion that the interests of the legislative, the executive and the judiciary may, and often do, conflict, and that this difference is good.” What Marx had not brought about, then, Montesquieu and Madison could deliver—a fragmentation of the managerial ranks into a pluralist world of unions representing the collective interests of specific groups of managers.⁷²

What, then, should we make of the pluralists’ effort to change the meaning of the categories “employee” and “manager”? As we have seen, the case of foremen in the 1940s showed that even a moderate and pragmatic development akin to the creation of professionally oriented unions such as the organizations of “cadres” in France implied a definition of the social meaning of work that fully departed from the managerial book, which stressed that unionism was incompatible with self-advancement in occupations and jobs that involved more than soulless labor. And conservatives were not about to give up on this cherished ideal. Here, indeed, lay the radical edge of industrial pluralism, an edge that mattered even more than in the 1940s, when William Leiserson, Harry Millis, and Paul Herzog had labored to bring foremen under the purview of the Wagner Act. Industrial pluralists did not argue that conflict at work was dysfunctional, but only that it could be managed and channeled if the employment relationship was democratic. They forcefully reaffirmed the idea that principles guiding collective bargaining social justice and democracy remained relevant as long the as the employment relationship existed. As McCulloch explained at the turn of the 1970s, no return to the free labor doctrine was acceptable: “That’s the whole idea. That the individual will not be subject to the whim of employers, but will be protected by a collective grouping which will serve the purpose of mutual aid and protection…. I believe the social conditions—the need for employees to have a more effective voice through their collective operations in a union—are still great.”⁷³ The use of the word “individual” encapsulated the protean character of industrial pluralism, for while it entailed a rejection of class consciousness of the kind expressed in many strikes organized in the 1960s in the United States and Europe, it also reaffirmed the asymmetrical nature of the employment relationship. Both McCulloch and Brown insisted that no individual could be expected to deal with his or her employer alone, and that in a democracy, workers should voluntarily agree to their employment conditions.⁷⁴ Moreover, it was precisely this belief in the need to bolster the position of the “individual” at work that led industrial pluralists to advocate the development of unionism in the white-collar and managerial world. Thus Jack Barbash, who taught industrial relations at the University of Wisconsin, noted that for professional workers, “the character of the work makes little difference whether problems exist between the employee and the employer … there are essential differences of interests between those who are employed and those who employ.”⁷⁵ Indeed, it was all the easier to contemplate such a development that the dynamics of labor relations did not entail that white-collar and blue-collar workers be included in large bargaining units. “In this pluralistic society, we will continue to have many forms of companies and unions, different types of collective bargaining in different units,” Brown explained.⁷⁶

Interestingly, in making this claim industrial pluralists did not simply strive to reaffirm the significance of the New Deal experience, they also derived their energy and self-confidence from the social and political context of the postwar era, especially the revolt against structures of authority that characterized the struggles of that time.⁷⁷ In this respect it was no happenstance that Clark Kerr was the president of the University of California just as it dealt with the question of student democracy, for Kerr believed that he could mediate social relations on campus to achieve durable institutional peace and progress. Similarly, at the end of the decade, Gerald Brown sanguinely predicted the extension of the principles of collective bargaining to new areas of society such as farmer and agricultural employee relations, government and public employee relations, professional teams and athletes, landlords and tenants, universities and students. Brown saw in all these current conflicts the need for a process whereby negotiation would make an agreement possible. Collective bargaining thus “offered the hope” in Brown’s words, that the country’s most urgent social problems would be solved reasonably and that demonstrations and violence would make way to social peace. Brown looked with such optimism at the future of collective bargaining that he believed that it might even require a new name.⁷⁸

The promotion of white-collar and managerial unionism was thus fully compatible with the disappearance of the labor question. This irony had been noticed as early as 1948 by the weekly conservative Business Week in an article outlining the new contours of the struggle between unions and corporations: “The logic behind [the Taft-Hartley Act] might be that unions had been put in their place, but it flatly affirms that they do have a place. The matter of respectability can be weighty to an office worker out of all proportion to how it would bear on a factory hand.”⁷⁹ In an ironic twist of history, then, the pluralist idea that the public interest lay in the synthesis of several competing interests was fully in tune with the process of negotiation that labor experts advocated, and it thus became the best argument against the idea that unionism made sense only in the Fordist context of manual, blue-collar work. As Jack Barbash explained, “The essence of democratic, pluralistic society as distinguished from monolithic mass society is the existence of self-governing groups which can have influence on things that matter to them. I can see no good reason why professional employees ought not to have this opportunity for self-government free from their own indulging myths and from myths of management’s making.”⁸⁰ Chameleon-like, industrial pluralism appears bland against the grand reformist schemes 1930s, but in view of the stakes inherent in the definition of “employee” and “manager,” in a context of growing antiunionism it takes much brighter colors. Just as corporate America, which had never accepted the basic premise of unionism, was getting ready to launch a full-scale attack on the New Deal collective bargaining regime, the industrial pluralists’ promotion of an individual right to organize that should accrue to any person working for wages or a salary offered important protection. The ideology of social harmony was as important to the defense of unionism in the 1960s and 1970s as it had been fifty or sixty years earlier.

Yet there was one fundamental difference between political pluralism and collective bargaining. Coinciding with the rediscovery of Alexis de Tocqueville’s Democracy in America, the rise of pluralism was premised on freedom of association. Tellingly, in the early 1960s the Supreme Court had reinforced this right by protecting the activities of the NAACP.⁸¹ By contrast, notwithstanding the union leaders’ and the board members’ rhapsodic descriptions of the corporation as a polity, the right to organize was nowhere to be found in the jurisprudence protecting freedom of association and individual rights. As we saw in Chapter 2, the law had not been built to protect workers as citizens, but rather to give the federal government the administrative means to foster social harmony, and the definition of the worker had always been subservient to that policy. It remained to be seen whether pluralists would be able to transcend such limitations.

The Limits of Labor Liberalism

In arguing that Bell Aerospace buyers were “managers” who should be allowed to organize because they were did not take part in the formulation of the labor policies of the company, the board and its new general counsel, Peter G. Nash, hoped to rely partly on the oddest of precedents: ILGWU v. NLRB (1964). The case arose out of the organizing wind that blew through union business agents in the late 1950s and early 1960s. Most unions agreed to bargain with their employees, but the International Ladies Garment Workers Union (ILGWU) took a different route. Seeking to chastise its organizers for placing their own interests above the cause defended by the union, the ILGWU argued that it need not bargain with its business agents because they were “managers,” not “employees.” The board decided against the union, and the Court of Appeals for the Second Circuit ruled that in spite of the skill and independent judgment required from union agents, they should not be classified as “managers” because they followed and applied the policy set by the union.⁸²

Yet as a precedent, the case was a mixture of good and bad. On the one hand, pointing to a case decided by the court prior to the board’s decision to alter its policy to exclude managerial employees was a way to downplay the importance of the decision to shift course and focus on the criteria defining the workers’ jobs. The board could thus hope to demonstrate that in the absence of a clear conflict of interest, protecting the freedom to organize of a worker made sense regardless of his or her title. But there was also a sobering feature in the ILGWU’s battle against the bargaining rights of its own staff— in fighting this battle, one of the unions that had engineered the move toward industrial democracy proved willing to contribute to a body of law restricting the right to organize. Considering the jurisprudential logic of law, this was a sign of the growing entrenchment and separation of the categories of managers and employees as social entities spelling rights at work. The union should have shuddered at that, but it did not.

The Supreme Court handed down its decision in the Bell Aerospace case on April 23, 1974. The ruling was a defeat for the NLRB, but also for the solicitor general, Erwin Griswold, who had in this case adopted a progressive position, asking the Court not to deprive all managerial employees of bargaining rights. Indeed the Court decided that all managers, regardless of their responsibilities, should be assimilated to “employers” in the collective bargaining process. Furthermore, the Court chastised the board for resorting to “rule making” in North Arkansas and Bell Aerospace and trying to effect a major change in labor relations. Ruling that the company was under no obligation to bargain with its buyers, the majority of the Court was composed of the conservative justices nominated by Richard Nixon, William Rehnquist, Burger, and Lewis Powell, but also of William O. Douglas and Harry Blackmun, two figureheads of legal liberalism.⁸³

The majority opinion, drafted by Lewis Powell, reflected the lowly institutional position of the NLRB. Board members had taken heart from the Court’s approval of their decision to facilitate organizing in the insurance industry in the Metropolitan Life case (1965). In this case, it had been acknowledged that the board could “depart from precedent.” But oral arguments in Bell Aerospace must have dashed these hopes, for they mostly focused on the board’s authority to depart from the policy to exclude managers, rather than on the rationale of the board’s main argument—that contrary to the claims of the company’s executives there was no “community of interest” between them and the buyers. Indeed even in the majority opinion Powell ignored whatever considerations may have led the board to reconsider its policy to exclude managers from collective bargaining. Far from trying to reconcile the legal norm with social reality, Powell focused on the original intent of the drafters of the Taft-Hartley and Wagner Acts. In a memorandum sent to his brethren in March 1974, Powell explained that the historical research he had conducted had convinced him that the congressional intent was indeed to exclude managers from the protection of the act. In no way could the NLRB circumvent this original design as it had in its North Arkansas decision.⁸⁴ Indeed, the only element qualifying the severity of the ruling was the Court’s decision to remand the case to the NLRB so that the board would decide whether the buyers were indeed “managerial.”⁸⁵

The weakness of the board in this debate over congressional intent was patent, and it largely symbolized the growing suspicion with which courts had looked at administrative agencies in the postwar era. As we have seen, faith in the superior power of expertise to achieve social reform through objective administrative rule making had informed much of the New Deal and animated a generation of labor liberals, foremost among whom were James Landis and William O. Douglas. But the legitimacy of expertise had largely faded. Agency capture had belied hopes for neutrality, while the reliance on expertise of the fascist and Nazi regimes had deprived the theory of the legitimacy it once had. By the 1960s, intellectuals like Louis Jaffe and Theodore Lowi denounced the “illusion of ideal administration” and the congressional practice of delegation. Democracy did not require expertise; on the contrary, it required participation. Indeed, a whole generation of students could only agree.⁸⁶

Compounding the board’s weakness was the lack of a strong social movement to bolster its new reading of the social meaning of management. As we have seen, in the 1940s, the changing definition of “employee” had been forged within the framework of a dialogue involving statist agencies and foremen pushing for change from the bottom up. By contrast, in the 1960s and early 1970s, the white-collar movement lacked a strong power base shoring up the social vision advanced by labor economists. Not only did this organizing drive take place against a background of growing antiunionism, but companies easily thwarted unions by granting professional and managerial employees “tandem increases” making the unions unappealing. And professional societies such as the National Society of Professional Engineers hampered the unionization effort with the creation of “sounding boards” meant to bring professional employees and managers closer together. Significantly, as in the case of General Electric, such sounding boards grouped all employed engineers, including those at all levels of management.⁸⁷

Consequently, the returns of NLRB elections in the 1960s tell a sobering story—the elections for white-collar units organized from January to September 1960 resulted in sixty-one victories and sixty defeats for unions, which thus recruited over 2,220 workers and failed to attract another 3,910. In 1965, the UAW TOP was involved in seventy elections, winning forty of them and gaining 3,418 members. In the 1970s, elections involving units of engineers of 100 or more mostly resulted in defeats for unions, which lost fourteen elections out of eighteen. A symbol of the white-collar promise in the 1950, the ESA by the end of the 1960s was lurching toward a rapid death, its members unable to come to an agreement on whether the union should affiliate with the CIO or even let in technicians. There were, of course, strong white-collar unions such as the American Federation of State, County and Municipal Employees (AFSCME), the American Federation of Teachers (AFT), the Professional Air Traffic Controllers, and the Air Line Pilots Association, but overall the movement did not come close to providing the critical mass that experts need to weigh on the evolution of social policies.⁸⁸

Penned as it was from a representative of the conservative establishment of Virginia, the majority opinion in Bell Aerospace was hardly surprising— Nixon, after all, had made original intent a litmus test in the selection of his Supreme Court nominees. Lewis F. Powell exemplified Nixon’s determination to alter the course of the Supreme Court. Born in 1907 to a distinguished Virginia family, Powell studied law in Virginia at Washington and Lee University before spending a year at Harvard Law School, where he received his LLM, but he was not fully swayed by the teaching of Frankfurter and Roscoe Pound. A respected jurist and a well-known opponent of attempts to preserve segregation in his home state, Powell was a conservative in the mold of the new right when it came to economic questions. Indeed, Powell went on to become a corporate attorney and made his mark among conservatives by drafting a policy memo for the director of the U.S. Chamber of Commerce in 1971, a few months before his nomination. In what is known as the “Powell manifesto,” the Richmond attorney warned against the continuous diminution of freedom in the United States: “No thoughtful person can question that the American System is under attack…. The assault on the free enterprise is broad-based and consistently pursued. It is gaining momentum and converts.”⁸⁹ The memo rang with new right intellectual overtones (Powell quoted Milton Friedman and William F. Buckley), but it was meant to provide concrete guidelines. Powell called on conservatives to finance campaigns to regain control of crucial political levers such as universities, the media, and the courts. Clearly, the man who argued that the “freedom of both business and labor” had been “seriously impaired” was unlikely to sanction the unionization of managers.⁹⁰

More intriguing, however, is William O. Douglas’s response to the letter sent by his fellow justice, for Douglas assured Powell that he would side with him during the conference vote. To understand why Douglas and even Blackmun, two of the main engines of the Court’s activism in the constitutional interpretation of individual rights, rebuked the NLRB’s most innovative decision, one needs to turn to Powell’s opinion, one that must have elicited much satisfaction in Douglas. Indeed, the opinion did not endorse the complaints of the new right ideologues who had inspired Powell’s manifesto. Rather, it largely endorsed the arguments deployed by the great liberal jurist in his dissent in the Packard v. NLRB case in 1947.⁹¹

A conservative jurist like Lewis Powell, who had always been removed from the liberal policy networks that had grown dominant since the New Deal, was unlikely to seek much support in an opinion authored thirty years earlier. Powell might have been content with writing an opinion overturning the board’s decision in Bell Aerospace on the grounds that it conflicted with the intent of Congress. But Powell was keenly interested in Douglas’s dissenting opinion because he wanted to write his opinion within the framework of the history of industrial democracy.

William Orville Douglas was no stranger to that tradition. Born in Minnesota in 1898, this Presbyterian grew up in poverty but still managed to combine work and academic studies. A stellar student, he graduated from the Columbia Law School in 1923, where he imbibed many of the reformist schemes that underwrote the adoption of the Wagner Act—institutional economics and legal realism. After a brief teaching stint at Columbia, he earned an appointment at Yale Law School, the seedbed of legal realism, where he taught until 1934. At that time, like many lawyers, he moved to Washington, where he became one of the keystones of the New Deal. Nominated chairman of the Securities and Exchange Commission in 1937, Douglas’s position in the liberal policy community was prominent enough—he was close to Felix Frankfurter, Isador Lubin, and Harold Ickes—that he was appointed by Roosevelt to the Supreme Court in 1939, after the debacle of the Court Packing Plan, when the president needed to send the most trustworthy advocates of American liberalism to the high bench.⁹²

Most important, Douglas was also very close to the labor movement, as was evidenced by his participation in the Tenth Annual Convention of the CIO in 1948. While unions were under attack from conservatives and faced an uncertain future as the Cold War dawned, the Supreme Court justice urged CIO leaders to play the same role in peacetime as they had during the conflict. Theirs was a most important economic and political contribution, Douglas explained: “Labor’s role in our national progress is unique and paramount. It is Labor, organized and independent labor that can supply much of the leadership, energy, and motive power which we need today.”⁹³

Douglas remained an adamant supporter of labor unions throughout his career on the bench, relentlessly reminding companies of their social obligations. But Douglas also used the authority vested in him to outline the limits of industrial democracy. And it was precisely those limits that attracted Powell’s attention. Pointedly, two elements in Douglas’s dissenting opinion were relevant to Powell’s design. First was the idea that legitimizing collective bargaining by foremen was tantamount to subverting the dynamics of labor relations, a point that Powell readily endorsed in Bell Aerospace, quoting Douglas:

The present decision … tends to obliterate the line between management and labor. It lends the sanctions of federal law to unionization at all levels of the industrial hierarchy. It tends to emphasize that the basic opposing forces in industry are not management and labor but the operating group on the one hand and the stockholder on the other. The industrial problem as so defined comes down to a contest over the fair division of the gross receipts of industry between these two groups. The struggle for control or power between management and labor becomes secondary to a growing unity in their common demands on ownership.⁹⁴

What Douglas had argued in effect was that allowing foremen to organize would pave the way for a democratic regulation of productive property that would subvert capitalism by placing the democratic ideal above the sanctity of property on which the capitalist system had heretofore relied.⁹⁵ As we have seen, in 1947 Douglas’s dissenting opinion embodied the “end of reform” analyzed by Alan Brinkley, 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. This idea had not died, cropping up in various guises in the work of James Burnham and John. K. Galbraith, but in the 1970s it was a more recent theory that seemed to give the unionization of professionals and technicians classified as “managers” its full political meaning. The theory of a “postindustrial society” had blossomed, and with it the idea that science and technology were potential “social” resources, removed from the dynamics of the market, and that those social sources could give rise to a fresh democratic impetus. While they did not claim to advance such ideas, board members nevertheless indirectly favored them. In 1970, the NLRB had revised and extended its jurisdiction to the very locus of the production of knowledge, university campuses, helping the American Association of University Professors and the AFT (which held different political views) to organize sundry campuses throughout the nation.⁹⁶

But the Supreme Court had no taste for this democratic potential, and it soon took a strong stance against unionized faculties.⁹⁷ There again it was Justice Powell who led the charge, this time rejecting the NLRB’s argument that the duties and responsibilities of the faculty of Yeshiva University— course selection, deciding course offerings, teaching methods, grading policies, and the number of students admitted—were all part of the routine discharge of their professional duties, that is, they were not exercised in the employer’s interest and properly fell within the provision of the Taft-Hartley Act protection of professionals.

To Powell, however, there was no difference between university professors and high-grade managers in a private company. “To the extent the industrial analogy applies,” Powell explained, “the faculty determines within each school the product to be produced, the terms on which it will be offered, and the customers who will be served.” Powell never explained why the industrial analogy was apposite and why the unionization of faculty staff constituted a threat of “divided loyalty” for the university. As William J. Brennan—one of the architects of the Warren Court’s liberal jurisprudence—noted in dissent, the idea that scholars’ competence depended on their undivided loyalty to their employer actually put a serious dent in the concept of academic freedom.⁹⁸ But Powell, like many conservatives in the 1970s, had identified the university as a key element in the liberals’ ability to labor American culture, and he was not about to sanction its unionization. In Yeshiva, the Court imposed the managerial exclusion where it least belonged, turning the university into a laboratory for conservatives seeking to make ever greater numbers of workers dependent on the goodwill of employers and the vagaries of the market. Years later, the Bush NLRB followed in Powell’s footsteps by ruling that graduate teaching assistants and research assistants at Brown University were not “employees” but “students” because teaching those classes was simply part of their academic training. Yet if the board had followed the tortuous “industrial analogy” that led Powell to characterize scholars as managers because of their responsibilities, it should have logically concluded that teaching assistants and research assistants were, by contrast, workers. At least hundreds of thousands of young Americans each year would have been provided with an important opportunity to reflect on the links between democracy and work.⁹⁹ To paraphrase the great Oliver Wendell Holmes, “the life of the [conservative] law has not been logic.”

Quite beyond the struggle against liberal academia, Yeshiva partook of the conservative strategy to reinforce the managerial exclusion. To the Court, unionizing management was unthinkable because it ran straight into the principle of “entrepreneurial control,” a phrase Douglas had used in his dissent in Fibreboard, echoing a principle that many industrial pluralists had expressed since the beginning of the struggle for industrial democracy during the Progressive Era—that the logic of democracy stopped at the door of free enterprise, which it did not fundamentally challenge. By way of contrast, the view advanced by the NLRB in the 1940s and 1960s was that the right to organize was an expression of the democratic ideal, one essential in making the worker a citizen worker. In this perspective there could be no sociological limits to the meaning of “employee,” which was the industrial equivalent of the citizenry: “The essence of democracy has been described as the participation of every mature individual in the formation of the values and institutions which regulate men living together. This agency has contributed much in this direction, and I am proud to have been a small part of it,” Brown explained as his first tenure at the board ended in 1966.¹⁰⁰

But if American workers were not citizen workers, what then was an “employee”? Against the reformist design of the board, Powell, Blackmun, and Douglas now marshaled a historicized vision of the right to organize and the policy on which it rested. According to them, the logic of collective bargaining was not to transcend the structure and dynamics of the modern enterprise, but simply to remedy the most nefarious social effects of capitalism. Quoting Louis D. Brandeis, the Supreme Court justice and early advocate of both industrial democracy and Taylorism, Douglas explained in 1947 that the employer’s quest to attain the greatest productivity possible was a legitimate one, but should be pursued through a “narrowing of the gap between management and labor.” Collective bargaining, Douglas argued, was a “measure of therapeutic value,” and the right to organize, like all rights, was a means to a social and economic end. In protecting workers and freeing them from foremen’s and managers’ arbitrary rule and favoring cooperation in its stead, it had fulfilled this objective.¹⁰¹

Hence Douglas did not subscribe to the rights-based vision of industrial harmony propounded by the pluralists, who saw associational freedom as an unmitigated good. Rather, he defended a vision of industrial harmony through unionism that was anchored in the Progressive search for order. To him the Wagner Act did not protect a political right, but an economic right that the federal government bestowed on a social group whose limits were defined according the objectives of the law—and this goal was really to make capitalism socially acceptable. There was no better guide to this perspective than Douglas’s own dissenting opinion in Machinists v. Street (1961), where the liberal icon argued pointedly that “collective bargaining is a remedy for some of the problems created by the modern factory conditions.”¹⁰² Accordingly, in Bell Aerospace Powell concluded, with Douglas, that the Wagner Act applied only to “laborers.”

As in the 1940s, American liberals were thus the most reliable purveyors of the conservative doctrine of managerial loyalty. In an irony of history, legal realism had come full circle in the labor field, leaving both its advocates and conservatives on the high bench as common laborers crafting their own, conservative definition of the “postindustrial society,” one that easily bested Daniel Bell’s, if only because it enjoyed the cultural authority of law.

The New Frontier That Was Not

The movement of Bell Aerospace buyers for recognition was brought to a successful end on June 6, 1976, almost six years after it began. In the end, the power of collective pressure proved too strong for the company. One year after the Court’s decision, the board ruled that the buyers were not managers but employees, a ruling the company decided it could not afford to appeal to the Supreme Court. When the UAW announced that if the buyers were not given a contract, all the employees of Local 1286 would go on strike— planners, planning engineers, estimators, mold loftsmen, who could not be replaced easily—the company relented and agreed to bargain. As a result, the buyers obtained the full extent of security at work—an automatic progression of $5 every six months and a $1,500 life insurance policy after retirement were provided, overtime was equalized, the company agreed to shoulder the cost of dependent coverage, and, most important, seniority now applied to layoffs.¹⁰³

It was, as a UAW representative explained, “all in all a fine job,” in light of the company’s determination to treat the buyers as managerial employees. But the fate of the buyers was no longer on the same course as that of the labor movement. For in Bell Aerospace, some of the justices who were so deeply involved in the protection of individual rights ruled that the right to organize, as protected by the Wagner Act, was nothing more than a historically situated effort at social cohesion that was bound to run its course as the laborers it was designed to protect declined in numbers. As a result, instead of adapting the labor relations law to an emerging post-Fordist contest, the Court protected the sociological and cultural integrity of management by deciding that workers who “formulate, determine, and effectuate management policies” have duties incompatible with the exercise of the democratic right to unionize.

The making of the Wagner Act as a law that protected “employees” rather than citizens thus cast an increasingly long shadow over the evolution of the labor movement. For the second time, industrial pluralists had sought in vain to transcend the sociological limits of the labor movement, and for the second time businessmen and conservatives had been able to oppose this attempt by waging an important legal and cultural battle over the legal definition of the worker. Yet this definition would remain contested beyond the conservative victory in cases like Bell Aerospace and Yeshiva. By the 1970s, American liberalism as a whole was running out of breath: what with union workers falling prey to conservative rhetoric in presidential elections and an economic crisis delegitimizing Keynesianism, there was little hope that beyond the NLRB, the liberal community would muster the strength to rebuild the legal definition of the worker and anchor it in democratic principles. In Bell Aerospace, the Court thus laid the legal groundwork for a post-Fordist economy in which the work setting was the place where two rival social identities would be distributed, with “managers” growing in numbers, and bidding farewell to the security attending the status of “employee.” Indeed, as a management consultant noted in the early 1970s, the question of whether a worker was a “supervisor” was increasingly litigated.¹⁰⁴ It was at this point that the conservative ascendency gave company executives and top managers what they still lacked in the 1970s to whittle the legal definition of the worker further away—Republican victories at the polls and majorities on the Supreme Court and the NLRB.