The Employee: A Political History by Jean-Christian Vinel (review)

Rarely does the almost eighty-year-old National Labor Relations Board (NLRB) make newspaper headlines. But appointees found their judgment scrutinized on front pages, during radio broadcasts, and even on the satirical Colbert Report when the board’s 2006 opinion in the so-called Kentucky River cases defined the kind of managerial duties that makes an employee a supervisor, who therefore does not have the legal right to join a union and benefit from collective bargaining. Labor reporters predicted this 3-2 decision covering a small Michigan hospital could affect more than eight million Americans. In fact, the NLRB’s two Democrats feared the creation of “a new class of workers under federal labor law: workers who have neither the genuine prerogatives of management, nor the statutory rights of ordinary employees” (p. 225).

Historian Jean-Christian Vinel, a Frenchman who teaches at Paris-Diderot, emphasizes that this ruling hardly represented a divisive break in American law. Rather the decision was “the product of a multi-decade struggle,” which “signaled the death of…the New Deal labor regime and sustained efforts to improve and enhance the lot of workers throughout much of the twentieth century” (pp. 226–227). That story is the subject of his excellent book, which traces the strange career of the label “employee.” Originating as a term describing a French state functionary, Vinel’s The Employee: A Political History emphasizes the bureaucratic and legal fights over its exact meaning in America during the Progressive Era and after.

The definition mattered. Beginning in the New Deal, labor law hinged on a stark separation between workers and managers (i.e., employees and employers) even though such a divide became increasingly blurred during the twentieth century’s second half, when service and professional work increased in dramatic fashion while manufacturing employment went into a relative decline. Corporate lawyers subsequently argued before the NLRB and the Supreme Court that the meaning of the word employee was largely confined to workers who did routine and mindless tasks in a factory-like setting. Such drones still retained the freedom to association and form a union of their own choosing; all others “owed a duty of fealty and loyalty to their employers, making their participation in unions impossible” (p. 2).

Business interests, Vinel expertly shows, struggled to secure this uniquely American legal definition of “employee,” which presumed an inherent contradiction between an individual’s desire to join a union and the steadfast subservience that older uses of the word implied. Profit does not fully explain the general business insistence on slowly narrowing the conception of an employee. “Power and domination” (p. 2) were more important. Organizing, after all, gave workers shop-floor rights, which directly undercut executive authority on a range of issues, not just those affecting labor costs.

Progressive Era labor experts had envisioned labor management relations differently. John Commons and others associated with the University of Wisconsin theorized that collective bargaining might well end years of pronounced industrial warfare and thus yield a new era of social harmony. Their answer to that moment’s Labor Question represented an alternative to both cut-throat capitalism and shopfloor syndicalism because it presumed that class conflict was not inherent and could thus be mediated by professional arbitrators (like themselves). Their vision ran throughout moderate approaches to labor policy for the rest of the twentieth century. The new labor laws of the 1930s, including many of the early, important NLRB rulings, can be directly tied to these theorists, who trained many of the New Deal’s key labor advocates. During and after World War II, liberals endeavored to expand the legal definition of an employee, in order to promote a stronger union movement, peaceful collective bargaining, and an expansive industrial democracy, all in the name of a greater public good.

Vinel’s attention to Progressive and liberal experts represents a notable and refreshing break in American historiography. The Employee is not a...