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Notes
1. Association of Supervisory Staffs, Executives and Technicians; Association of Scientific, Technical and Managerial Staffs; Technical, Administrative and Supervisory Section; Amalgamated Engineering and Electrical Union; Amicus; Unite the Union.
2. National Management Association, ‘NMA History’; National Management Association.
3. Oxford English Dictionary (entries for ‘employ,’ ‘employer,’ ‘employed,’ ‘employee,’ ‘employment’).
4. For Anglo-American master/servant law, see Tomlins, Citation1993, pp. 223–292, Citation2010, pp. 329–331; VanderVelde, Citation1992, pp. 775–852.
5. The Wagner Act, Sec. 1 ‘Findings and Policy’.
6. ‘The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home or any individual employed by his parent or spouse.’ Ibid., Sec. 2 ‘Definitions,’ (3).
7. Ibid., 65–70. Commons defined the ‘going concern’ as ‘a very visible, very tangible, living body of men … animated by a common purpose, governed by common rules of its own making, and the collective behavior in attaining that purpose we distinguish as a ‘going business.’ It is this collective behavior of this collective will, this flow of transactions along lines indicated by its own working rules, this going business of a going concern, that constitutes the invisible, intangible being of [Chief Justice John] Marshall’s definition [of the corporation].’ Commons (Citation1924), pp. 144, 145.
8. In the original Fordist case, of course, the workforce being unorganized, the formula for sharing wealth – the $5 day – was bargained on the individual basis of ‘take it or leave it.’ The collective bargaining innovation did not address itself to negotiating the conditions of production of wealth, which was consigned to management’s sphere of responsibility within the going concern. Collective bargaining addressed the disparity of power that afflicted the individual in negotiations over the distribution of the wealth produced under management direction. See Vinel, Citation2013, pp. 80–84.
9. Even according to employers they were employees – at least when it suited employers to make that argument, as in their efforts in 1938–1939 to have the Wagner Act amended to avoid unfair labor practice charges stemming from the involvement of foremen in employer efforts to discourage unionization of production workers. ‘Against the [NLRB]’s rulings that any person in charge of maintaining discipline or production goals was not an ‘employee’ when he or she expressed an opinion about labor relations, company executives argued that foremen did not have the power to hire and fire, and thus should not be assimilated with the managers included in the category “employer”’ (Vinel, Citation2013, p. 128).
10. One can of course make too much of this. Note the division immanent in the old and ribald version of ‘The Red Flag’ that goes ‘The working class can kiss my arse, I’ve got the foreman’s job at last’.
11. ‘A foreman, in his relation to his employer, is an employee … Nothing in the Act excepts foremen from its benefits.’ Union Collieries Coal Company , 41 NLRB 961 (June 1942), at 966 (quoting the Circuit Court of Appeals for the Eighth Circuit in NLRB v. Skinner & Kennedy Stationery Co., 113 F.2d 667 (1940), at 671). In a supplementary ruling in the same case, the Board acknowledged arguments that foremen and supervisors should not be included in the same bargaining unit as the production workers they supervised. See Union Collieries Coal Company, 44 NLRB 165 (September 1942).
12. Maryland Drydock Company, 49 NLRB 733 (May 1943), at 738–9, 741. Millis in the minority did not disagree with the majority’s claim of administrative discretion, but argued that it should be applied on a case-by-case basis. See Tomlins, The State and the Unions, 265–266.
13. Packard Motor Company, 64 NLRB 204 (March 1945).
14. L.A. Young Spring and Wire Corporation, 65 NLRB 298 (January 1946).
15. Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947). On this sequence of decisions, see Vinel, Citation2013, pp. 132–152. This seems as good a place as any to voice one reservation I have about Vinel’s book. As I have already noted, the empirical focus of The Employee is foremen and supervisors. One may concede the import of this focus in facilitating analysis of the embodiment of ‘the right to manage’ in American labor law, yet wonder whether one can in fact write a wholly satisfactory political and intellectual history of a century of labor relations law and policy on the basis of this one strand of evidence.
16. NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267 (1974), at 275; NLRB v. Yeshiva University, 444 U.S. 672 (1980).
17. As, for example, in note 15 above.
18. Not that I have anything against Gabriel Kolko, whose work deserves respectful attention. But my main man was Lou Galambos.