Why the right to representation in the workplace has historically been denied to millions of workers in the United States ? By proposing a resolutely new history of the category of “ employee », Jean-Christian Vinel reveals the political issues associated with this designation. It thus fills a void in the social history of the United States.
To get right into Jean-Christian Vinel’s excellent book onemployee American, it is better to give up all French references ! In France, theINSEE brought together in 1982, and reorganized in 2003, all the professions into six socio-professional groups: farmers, artisans, traders and business leaders, executives and higher intellectual professions, intermediate professions, employees, workers. In this nomenclature, employees include those who work in offices, shops, services, as well as caregivers, while foremen, supervisors and technicians are located at the higher hierarchical level, that of intermediate professions.
In France, employees and workers are practically at the same hierarchical level. In the United States, things are very different: in collective agreements, all workers (workers) are employees and have the right to be represented by a union. The debate, which is still current, concerns the question of whether socio-professional categories other than workers can benefit from the same negotiation conditions with employers. Although borrowed from French “ employee ” At XIXe century, the word employee gradually took on a particular meaning and ended up referring to employees who perform manual tasks and exercise no responsibility. Behind these semantic questions lie real struggles for power within American companies, conflicts involving the right to unionize and negotiate collective agreements. In this long story that Vinel carefully analyzes, the law is interpreted by judges who should not be naive enough to believe that their judgments are not colored by their personal opinions.
Social harmony v. loyalty
At the beginning of XIXe century, American labor law was based on the common law English: any agreement between workers to obtain an increase in wages was considered a conspiracy, and therefore illegal. A judgment rendered in Massachusetts in 1842, Hunt v. Commonwealthended this ban, but the unions were not protected by the law. Supreme Court rulings of 1908 and 1915 affirmed the legality of so-called contracts yellow dog » which required workers not to unionize. The boss had to be sure of the loyalty of his employees. In accordance with the canons of liberal individualism, the employment contract was supposed to be concluded between two independent people, without the intervention of a third party.
At the beginning of XXe century, this idea of equality between the two contracting parties began to be undermined by the progressives. However, contrary to the aspiration for the emancipation of the working class supported by Marxism, progressives advocate measures specific to each socio-professional group. Since the working class is, they argue, sociologically fragmented, social policy must strive to combine the individualism inherent in freedom of contract with the necessary expansion of state police power. This is where the current debate on the definition of the term starts. employee : two conceptions clash, one invoking social harmony, the other loyalty.
The ideal of social harmony, developed at the beginning of the XXe century by John R. Commons and the Wisconsin School, starts from the observation that there is no irreconcilable antagonism between capital and labor. It rejects all class struggle, in keeping with an American tradition based on equal rights, mutually beneficial employer-employee relationships, and upward social mobility in a fluid society. He does not deny that there are conflicts of interest, but he considers that solutions can be found which will prevent the escalation towards violent conflicts. This is why the State must intervene in the area of social relations, particularly in favor of workers who are in the most weak position vis-à-vis their employer. So it’s not about creating democracy in the workplace ; the protections that workers obtain are linked to their employment statusemployeeand not to their status as citizens.
It is this philosophy that permeates the Wagner Act (1935), adopted at the height of the New Deal: a employee is supposed to carry out a routine task ordered to him by hierarchical superiors, without him being able to contest or show initiative ; its defense is ensured by an elected union recognized as the sole negotiator of the collective agreement. Conversely, employees who enjoy a certain discretionary power, foremen (foremen) or supervisors (supervisors), are excluded from collective agreements, because they cannot be bound by dual loyalty, towards the managers of the company and the workers’ union to which they give orders.
Regaining loyalty
Many foremen have difficulty accepting being deprived of the right to organize collectively to defend their interests. In modern factories built from the 1880s onwards, they enjoyed great power on the shop floor: they hired and fired workers, sometimes behaving like petty tyrants. It is no wonder that the labor unions had little sympathy for their cause. In the new organization of factories from the 1920s, under the influence of Taylorism, they gradually lost their discretionary power, faced with the rise of the middle strata of management and the growing authority of union delegates (shop stewards). Feeling weakened and in an uncomfortable position, they demand the right to join a union.
Vinel pertinently analyzes this turbulent period which saw foremen take advantage of the exceptional circumstances linked to economic overheating during the Second World War, then to waves of strikes after the return of peace, to obtain favorable decisions from the National Labor Relations Board (NLRB), the commission charged with implementing and interpreting the Wagner Act. These successes were ephemeral, because the leaders of large companies rallied to their point of view a mass of voters exasperated by the multiplication of strikes in 1945-1947 ; the Republicans hostile to the New Deal won the majority in Congress in the elections of November 1946 and voted the following year for the Taft-Hartley law which still remains today the fundamental charter in terms of labor law. It is expressly stipulated that foremen are excluded from the collective agreement procedure, because they are not employees. This is exactly what the vice-president of Inland Steel said in 1943: “ In industry, as in administration or anywhere else, there are two classes of people: those who decide and those who execute. We cannot organize a human society on any basis other than, on the one hand, the decision-makers, and on the other the executors. In private companies, it is management who is the decision-maker. A foreman or supervisor is management » (p. 256, note 80).
In the name of the principle according to which no one can serve two masters, foremen are included in the group of managers: if they were considered workers, they would join workers’ unions and their loyalty would be divided between the union and management. ; This would result in anarchy in the factory, whereas discipline is necessary for the proper functioning of the productive system. This argument is accepted beyond conservative circles alone. Of the liberalslike Frankfurter and Douglas, judge that we cannot, whatever our sympathies for the social question, act as if the problem of loyalty did not arise.
The division of liberals explains why they were unable to reverse this aspect of the Taft-Hartley Act, even when they obtained a majority in Congress. Nevertheless, the camp of industrial pluralists remains powerful: it demands the individual right to unionize for all employees, pointing out, among other arguments, that the unionization of white-collar workers should mitigate radical activism, but it refuses any “ industrial democracy » in the company. In fact, in the 1960s and 1970s, new categories of employees formed unions. From 1980, however, the conservatives imposed their intellectual hegemony. In the judgments of the Supreme Court, realism gives way to textualism: instead of accompanying the evolution of society, the judges focus on the text of the law and the Constitution which becomes the sacrosanct touchstone. holy ; they block efforts to interpret the NLRBwho ends up giving up all ambition.
Vinel brilliantly and precisely demonstrates this rise of legal conservatism which succeeds in preventing those responsible for purchasing departments (procurement buyers) (1974) or head nurses (2000) to organize with a view to negotiating collective agreements, because they belong to the category of supervisorswhich automatically excludes them from the world of employees. This is why now, due to the growth of the higher tertiary sector, almost a quarter of the American working population, or 24 million people, cannot or risks not being able to benefit from the right to unionize. and the protections offered by the Wagner Act.
All employees ?
At the end of his analysis based on a rigorous analysis of the archives and a careful reading of the judgments of the courts of justice and the deliberations of the NLRBJean-Christophe Vinel explores the paths to the future. Have conservative ideas been so well anchored since 1947 in the law and dominant mentalities that they have become impregnable or can we hope for a change? ?
Vinel remains moderately optimistic. Indeed, growing inequality is creating concerns about the shrinking middle class, to which the vast majority of Americans once prided themselves on belonging. The Wagner Act needs to be revised, because it corresponded to the Fordist moment of industrialization, while today the separation between leaders and performers is becoming more blurred ; there would no longer be any reason to exclude supervisors collective agreements.
But the heaviness persists. Recent debates around the bill on “ free choice ” of the employees (Employee Free Choice Act, EFCA) clearly indicate the obstacles that remain to be overcome. Free choice, which is a union demand, would allow employees to simply sign a card asking to be represented by a particular union for the negotiation of a collective agreement, without company management being able to intervene. The business community, on the contrary, defends tooth and nail the need to continue to carry out elections by secret ballot, as is done in the political field. On both sides, the arguments are not entirely convincing and it is not surprising that the liberals are not unanimous in supporting theEFCA. Under these conditions, major changes are needed, which it is difficult to imagine could occur in the current context, so that all employees become employees.