Engineering the middle classes: Class line-drawing in new deal hours legislation

Michigan Law Review

Volumn 96, Issue 8, 1998, Pages 2212-2320

  Malamud, Deborah C ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 0040598286     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290172     Document Type: Article

References (507)

1. Marc Linder is the scholar who has most exhaustively studied the Fair Labor Standards Act (FLSA) and related legislation. See, e.g., MARC LINDER, MIGRANT WORKERS AND MINIMUM WAGES: REGULATING THE EXPLOITATION OF AGRICULTURAL LABOR IN THE UNITED STATES (1992);
2. Marc Linder, The Small-Business Exemption Under the Fair Labor Standards Act: The "Original" Accumulation of Capital and the Inversion of Industrial Policy, 6 J.L. & POLY. 403 (1998);
3. Marc Linder, Farm Workers and the Fair Labor Standards Act: Racial Discrimination in the New Deal, 65 TEXAS L. REV. 1335 (1987)
4. [hereinafter Linder, Farm Workers and the Fair Labor Standards Act];
5. Marc Linder, Class Struggle at the Door: The Origins of the Portal-to-Portal Act of 1947, 39 BUFF. L. REV. 53 (1991);
6. Marc Linder, Closing the Gap Between Reich and Poor: Which Side Is the Department of Labor On?, 21 N.Y.U. REV. L. & Soc. CHANGE 1 (1993-1994).
7. The emphasis of Linder's work on exemption from hours regulations is on lower-level exemptions, through which agricultural and domestic workers - many of them black - have historically been excluded from protection. For a similar criticism of the FLSA for leaving many women workers without statutory protection, see Suzanne B. Mettler, Federalism, Gender, & the Fair Labor Standards Act, 26 POLITY 635 (1998).
8. The statutory exemption for "any employee employed in a bona fide executive, administrative, or professional capacity" is found in § 213 of the Fair Labor Standards Act of 1938, 29 U.S.C. § 213(a)(1) (1994). The implementing regulations are found at 29 C.F.R. §§ 541.0-.315 (1997). For debate on the exemption, see, e.g., Nicholas Clark, Fair Labor Standards Act Reform - It's Not Broke, So Don't Fix It, 11 LAB. LAW. 343 (1996);
9. Peter D. DeChiara, Rethinking the Managerial-Professional Exemption of the Fair Labor Standards Act, 43 AM. U. L. REV. 139 (1993);
10. William J. Kilberg, Reforming the Fair Labor Standards Act: For Congress and the Rest of Us, EMPLOYEE REL. L.J., Spring 1996, at 1;
11. Robert D. Lipman et al., A Call for Bright-Lines to Fix the Fair Labor Standards Act, 11 HOFSTRA LAB. L.J. 357 (1994);
12. Lawrence Peikes, Tightening the White-Collar Exemptions: The Courts Breathe New Life into the Fair Labor Standards Act, 10 LAB. LAW. 121 (1994). In a recent decision, the Supreme Court held that the Wage and Hour Division of the Department of Labor has considerable discretion to interpret these exemptions, and sustained its interpretation of the "salary basis" test, one of the more controversial aspects of the exemption regulations. See Auer v. Robbins, 117 S. Ct. 905 (1997).
13. For representative critical race theory anthologies, see, e.g., CRITICAL RACE FEMINISM: A READER (Adrien Katherine Wing ed., 1997);
14. CRITICAL RACE THEORY: THE CUTTING EDGE (Richard Delgado ed., 1995);
15. CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT (Kimberlé Crenshaw et al. eds., 1995).
16. For casebooks surveying the state of feminist jurisprudence, see, e.g., KATHARINE T. BARTLETT & ANGELA P. HARRIS, GENDER AND LAW: THEORY, DOCTRINE, COMMENTARY (2d ed. 1998);
17. MARY BECKER ET AL., FEMINIST JURISPRUDENCE: TAKING WOMEN SERIOUSLY (1994).
18. For a treatment of legal definitions of race and sexual orientation identities, see Kenneth Karst, Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation, 43 UCLA L. REV. 263 (1995). This is not to say that the agenda of critical legal studies (CLS) did not include the exploration of class as a phenomenon contested in and through law. But Robert Gordon observed as late as 1989 - late in the history of CLS as a movement - that "[t]he Critics are still a long way from being able to deliver the brightest promises of their Critical program: thickly described accounts of how law has been imbricated in and has helped to structure the most routine practices of social life."
19. Robert W. Gordon, Critical Legal Histories, in CRITICAL LEGAL STUDIES 79, 102 (Alan C. Hutchinson ed., 1989). I consider work one of those routine practices, and see this article as part of that program - for all that it issues from a scholar lacking in movement credentials.
20. Some of the vast academic debate on the concept of class as it pertains to the middle classes and white-collar workers is surveyed in Deborah C. Malamud, Class-Based Affirmative Action: Lessons and Caveats, 74 TEX. L. REV. 1847 (1996).
21. For an extremely helpful historical and comparative treatment, see JÜRGEN KOCKA, WHITE COLLAR WORKERS IN AMERICA 1890-1940 (1980).
22. Other significant historical, theoretical, and/or comparative treatments include ILEEN A. DEVAULT, SONS AND DAUGHTERS OF LABOR: CLASS AND CLERICAL WORK IN TURN-OF-THE-CENTURY PITTSBURGH (1990);
23. RICHARD SOBEL, THE WHITE COLLAR WORKING CLASS: FROM STRUCTURE TO POLITICS (1989);
24. ERIK OLIN WRIGHT, CLASS COUNTS: COMPARATIVE STUDIES IN CLASS ANALYSIS (1997);
25. SOCIAL CHANGE AND THE MIDDLE CLASSES (Tim Butler & Mike Savage eds., 1995).
26. For a discussion of the American rhetoric of class, including the treatment of white-collar and/or middle class workers, see Margo Anderson, The Language of Class in Twentieth-Century America, 12 Soc. Sci. HIST. 349 (1988).
27. This is beginning to change in the recent critical race theory literature, as the focus of critical race theory expands beyond what Juan Perea has termed the "black-white binary" and into new areas of social practice. See Juan F. Perea, The Black/White Binary Paradigm of Race: The "Normal Science" of American Racial Thought, jointly published as 10 LA RAZA L.J. 127 (1998)
28. and 85 CAL. L. REV. 1213 (1998).
29. For a leading example, see IAN F. HANEY-LÓPEZ, WHITE BY LAW (1996), which focuses on statutory immigration cases.
30. The exception was the effort to treat the poor as a suspect class - which, had it not failed, would have required courts to develop a constitutional definition of poverty. But the effort did fail. Compare Frank I. Michelman, The Supreme Court, 1968 Term-Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7 (1969) with San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973). In any case, it is likely that the result of these efforts, had they succeeded, would have been the definition of poverty as a suspect classification. Heightened constitutional scrutiny might not have been brought to bear on government action that defines the lines that differentiate non-poor working people from one another.
31. I use the New Deal as a cutoff because the Depression led to an unprecedented broadening of the scope of social programs, and because of the New Deal heritage of so many existing social programs. The New Deal may also have been the first occasion for comprehensive governmental consideration of the economic problems of white-collar workers - although that claim is in need of further historical testing at the state and federal levels. Indeed, the Depression was a crucible for the definition of the federal government's role in a wide range of areas. See Alan Brinkley, The New Deal and the Idea of the State, in THE RISE AND FALL OF THE NEW DEAL ORDER, 1930-1980, at 85 (Steve Fraser & Gary Gerstle eds., 1989).
32. See Malamud, supra note 5, at 1854-56.
33. See, e.g., NATIONAL RESEARCH COUNCIL, MEASURING POVERTY: A NEW APPROACH (Constance F. Citro & Robert T. Michael eds., 1995).
34. For whiteness literature in history and the humanities, see, e.g., NOEL IGNATIEV, How THE IRISH BECAME WHITE (1995);
35. TONI MORRISON, PLAYING IN THE DARK: WHITENESS AND THE LITERARY IMAGINATION (1992);
36. DAVID ROEDIGER, TOWARDS THE ABOLITION OF WHITENESS (1994);
37. DAVID R. ROEDIGER, THE WAGES OF WHITENESS: RACE AND THE MAKING OF THE AMERICAN WORKING CLASS (1991);
38. WHITE TRASH: RACE AND CLASS IN AMERICA (Matt Wray & Annalee Newitz eds., 1997).
39. As some of the titles cited reflect, the whiteness literature is deeply concerned with the role race has played in shaping the class-consciousness (or lack thereof) of white American workers. For critical race theory literature on whiteness, see CRITICAL WHITE STUDIES: LOOKING BEHIND THE MIRROR (Richard Delgado & Jean Stefancic eds., 1997).
40. See KOCKA, supra note 5, at 203 ("Economic distress, unemployment, and public relief during the depression, which for the first time touched significant numbers in the middle class, stimulated public discussion of white collar workers at the very time that their middle class status was seriously threatened by that same crisis.").
41. Harry L. Hopkins, NBC Radio Address (Oct. 10, 1933) (Roosevelt Archives, Papers of Harry Hopkins [hereinafter FDR, Hopkins Papers], Box 9, Speeches 1933-36).
42. Harry L. Hopkins, NBC Radio Address 1933. Id.
43. Proceedings, General Meeting, Federal Civil Works Administration (Nov. 15, 1933) (FDR, Hopkins Papers, Box 9, Speeches 1933-36);
44. see also Harry L. Hopkins, NBC Radio Address (June 24, 1933) (FDR, Hopkins Papers, Box 9, Speeches 1933-36).
45. For a discussion of Depression unemployment among engineers and scientists and their role in crystallizing the concept of work-spreading as a solution to the problem of unemployment, see BENJAMIN KLINE HUNNICUTT, WORK WITHOUT END: ABANDONING SHORTER HOURS FOR THE RIGHT TO WORK 267-88 (1988).
46. Memorandum from Jacob Baker, Director of Work Relief and Special Projects, to All Governors and State Emergency Relief Administrations (Oct. 30, 1933) (Roosevelt Archives, Official File 444, Federal Emergency Relief Administration [hereinafter FERA], Box 1, Chron 1/33-4/34) [documents in the Roosevelt Archives Official File collection hereinafter FDR/OF].
47. Hopkins noted in July 1933 that he was sure the problem of unemployment among such groups as teachers, nurses, photographers, actors, and musicians was greater than standard unemployment statistics showed. See Memorandum from Harry L. Hopkins to President Roosevelt (July 7, 1933) (FDR/OF 264, Unemployment, Box 1, May-Sept. 1933) (quoting William Green). He continued to express concern about unemployed professionals. See, e.g., Memorandum from Harry L. Hopkins to President Roosevelt (Aug. 14, 1933) (FDR/OF 264, Unemployment, Box 1, May-Sept. 1933 folder) (discussing role for unemployed teachers); Press Release from Harry L. Hopkins to the Governors and State Emergency Relief Administrators (Aug. 19, 1933) (FDR/OF 444, FERA, Box 1, Jan. 1933 - Apr. 1934) (publicizing plan to provide "relief teachers" - unemployed teachers - to teach children in rural areas and adults in cities and rural areas). By June 1935, 40,000 teachers were employed in FERA's adult education projects. See Memorandum from President Roosevelt to Elsie Long (June 29, 1935) (FDR/OF 444, FERA, Box 3, June-July 1935). Data made available by the American Federation of Labor (AFL) in 1934 on employment and unemployment levels in the United States from 1930 to 1933 showed that employment levels for "management and professional" employees exhibited the same pattern as for other types of employment during the period. See American Federation of Labor, Chart: Employment and Unemployment in the U.S. (n.d.) (FDR/OF 264, Unemployment, Box 1, May-Sept. 1933).
48. Lorena Hickok was assigned by the Associated Press to cover the Roosevelt presidential campaign. As of October 1932 she was assigned exclusively to cover Eleanor Roosevelt, who became her close friend. Hickok resigned from the Associated Press in June 1933 because she thought she had lost her objectivity, and in August 1933 became Chief Investigator for FERA. See Biographical Description of Lorena Hickok, 1893-1968 (n.d.) (Roosevelt Archives, Lorena Hickok Papers [hereinafter FDR, Hickok Papers]). Historians have differed in their accounts of the Hickok-Eleanor Roosevelt relationship, with some side-stepping the question of its sexual nature and others affirming it.
49. Compare, e.g., JOSEPH P. LASH, ELEANOR AND FRANKLIN 349, 353-56 (1971)
50. and DORIS FABER, THE LIFE OF LORENA HICKOK, E.R.'s FRIEND (1980)
51. with 1 BLANCHE WIESEN COOK, ELEANOR ROOSEVELT, 1884-1933, 478-80 (1992). For Hopkins's decision to transmit Hickok's field memoranda directly to Roosevelt and his serious consideration of them, see FABER, supra, at 143. See also id. at 7 ("In 1935 Hopkins told the President's wife that posterity would consider these vivid Hickok reports the best available history of the Depression, and his prediction appears to have been not far from the mark.").
52. Many of Hickok's reports are published in ONE THIRD OF A NATION: LORENA HICKOK REPORTS ON THE GREAT DEPRESSION (Richard Lowitt & Maurine Beasley eds., 1981).
53. Report from Lorena A. Hickok to Harry L. Hopkins (Apr. 2, 1934) [hereinafter Hickok Birmingham Report], attached to Memorandum from Harry L. Hopkins to President Roosevelt (Apr. 13, 1934) (FDR/OF 444, FERA, Box 1, Jan. 1933-Apr. 1934).
54. Id. at 2. But see Memorandum from Jacob Baker, Director of Work Relief and Special Projects, to All Governors and State Relief Administrators (Oct. 30, 1933) (FDR/OF 444, FERA, Box 1, Oct.-Dec. 1933) (stating that his office has always advised the states that they "are justified in taking account of the prior standard of living [of clerical and professional workers] in determining budget deficiencies"). The opposition of the term "men in overalls" (rather than the term "blue collar") to the term "white collar" reflects the fact that "blue-collar is a post-World War II word; white-collar dates from around 1910." MARGO ANDERSON CONK, THE UNITED STATES CENSUS AND LABOR FORCE CHANGE: A HISTORY OF OCCUPATION STATISTICS, 1870 TO 1940, at 162 n.21 (1980).
55. Hickok Birmingham Report, supra note 19, at 3.
56. On the class position of skilled craftsmen, see, e.g., GAVIN MACKENZIE, THE ARISTOCRACY OF LABOR: THE POSITION OF SKILLED CRAFTSMEN IN THE AMERICAN CLASS STRUCTURE (1973).
57. For a British study, see JOHN H. GOLDTHORPE ET AL., THE AFFLUENT WORKER IN THE CLASS STRUCTURE (1969).
58. Hickok Birmingham Report, supra note 19, at 3.
59. Id.
60. See MICHAEL DENNING, THE CULTURAL FRONT: THE LABORING OF AMERICAN CULTURE IN THE TWENTIETH CENTURY 9 (1996).
61. Report of Wayne R. Parrish to Harry L. Hopkins 9 (Nov. 17, 1934), attached to Memorandum from Harry L. Hopkins to Marguerite A. LeHand (Dec. 10, 1934) (FDR/OF, FERA, Box 2). Parrish's report was forwarded to Roosevelt by Harry Hopkins with a cover note to Roosevelt's personal secretary stating: "The President was anxious to go over these, and I would appreciate it very much if you could give them to him tonight." Id. at 1. There is a notation on the top left corner of the page, in handwriting, presumably Miss LeHand's, with the word "Bedside."
62. Donald R. Richberg, The Industrial Liberalism of Justice Brandeis, 31 COLUM. L. REV. 1094, 1102 (1931).
63. For a discussion of exceptions, see DENNING, supra note 25, at 15; KOCKA, supra note 5, at 206-46 & tbl.4.6.
64. See Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-19 (1944). The exemption for "executive, administrative, [and] professional" employees is found in § 13 of the statute, 29 U.S.C. § 213(a)(1). The FLSA also contains minimum-wage provisions, but there are no upper-level exemptions to the minimum wage. The upper-level exemptions to the FLSA's overtime provisions include an exemption for outside salesmen. That exemption originated at least in substantial part from the difficulty employers would face in monitoring the work of traveling employees, and thus has a different set of cultural resonances. It is for that reason not productive to include outside salesmen in this article's discussion. A recent move to extend the exemption to certain inside salesmen - on the grounds that they are like professionals and that the work they do is no different from that of outside salesmen except for its location - would be of interest in a parallel study looking at current debates on upper-level exemptions. See The Sales Incentive Compensation Act, H.R. 1, 105th Cong. 1998; Highlights, Daily Lab. Rep. (BNA) No. 1135, at A-8 (June 12, 1998);
65. for analysis, see, e.g., FLSA: House Committee Agrees to Expand FLSA Exemptions for Sales Staff, Daily Lab. Rep. (BNA) No. 63, at A-6 (Apr. 2, 1998).
66. Reform proposals are discussed in the literature cited supra note 2.
67. Similar themes can be explored in other New Deal programs. The New Deal statute whose class implications have been most thoroughly explored is the National Labor Relations Act, into which an express supervisory exemption was introduced in 1947 after a number of years of organizing efforts among supervisors. For the statutory provision, see 29 U.S.C. § 152(3) (1994); for the history, see Virginia A. Seitz, Legal, Legislative, and Managerial Responses to the Organization of Supervisory Employees in the 1940's, 28 AM. J. LEGAL HIST. 199 (1984);
68. for significant current case law, see NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571 (1994), and for academic critiques, see, e.g., Marion Grain, Building Solidarity Through Expansion of NLRA Coverage: A Blueprint for Worker Empowerment, 74 MINN. L. REV. 953 (1990);
69. George Feldman, Workplace Power and Collective Activity: The Supervisory and Managerial Exclusions in Labor Law, 37 ARIZ. L. REV. 525 (1995);
70. Michael C. Harper, Reconciling Collective Bargaining with Employee Supervision of Management, 137 U. PA. L. REV. 1 (1988).
71. As of 1947, the statute specifies that professionals have the choice of whether to organize in mixed units or units containing only professionals. See 29 U.S.C. § 159(b). For scholarly treatment, see David M. Rabban, Can American Labor Law Accommodate Collective Bargaining by Professional Employees?, 99 YALE L.J. 689 (1990). And the Supreme Court in 1974 approved an extra-statutory "managerial" exemption. See NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974); see also NLRB v. Yeshiva Univ., 444 U.S. 672 (1980);
72. David M. Rabban, Distinguishing Excluded Managers from Covered Professionals Under the NLRA, 89 COLUM. L. REV. 1775 (1989). I am focusing on hours regulation rather than the regulation of unionization for four main reasons: (1) upper-level white-collar exemptions in hours regulation predate those under the NLRA; (2) their history and social significance are less known; (3) they arose within the administrative state over a short and well-defined period of time at the core of New Deal labor policy; and (4) class line-drawing in the field of hours regulation carries less of an implication of "class conflict" and - ironically, for that very reason - comes closer to speaking about class as most Americans understand it. See Malamud, supra note 5, at 1863-66.
73. For book-length studies of the history of American hours reform, see HUNNICUTT, supra note 15; TERESA ANNE MURPHY, TEN HOURS' LABOR: RELIGION, REFORM, AND GENDER IN EARLY NEW ENGLAND (1992);
74. DAVID R. ROEDIGER & PHILIP S. FONER, OUR OWN TIME: A HISTORY OF AMERICAN LABOR AND THE WORKING DAY (1989);
75. RONNIE STEINBERG, WAGES AND HOURS: LABOR AND REFORM IN TWENTIETH-CENTURY AMERICA (1982).
76. For a historical study published in the 1930s, see MARION COTTER CAHILL, SHORTER HOURS: A STUDY OF THE MOVEMENT SINCE THE CIVIL WAR (1932).
77. For a defense of the leisure justification, and a history of its early ascendancy and later abandonment in favor of full-employment goals, see HUNNICUTT, supra note 15; MURPHY, supra note 32. On the issue of leisure as an issue in today's economy, see JULIET B. SCHOR, THE OVERWORKED AMERICAN: THE UNEXPECTED DECLINE OF LEISURE (1991).
78. JOHN R. COMMONS & JOHN B. ANDREWS, PRINCIPLES OF LABOR LEGISLATION 265 (rev. enlarged ed. 1927) (citing the 1912 version of federal employment statute). Of course, limiting legislative protection to "laborers, workmen, and mechanics" provided some groups the opportunity to test the limits of the category. See KOCKA, supra note 5, at 161-64 (discussing successful demands by unionized draftsmen at war shipyards during World War I to be included in the "laborers and mechanics" classification). For an analysis of the coverage of early labor standards legislation, see STEINBERG, supra note 32, at 59-87.
79. Commons and Andrews note one exception: the Alaskan eight-hour law "covered all workers, including partners and corporation officials, except in certain emergencies," and was held unconstitutional in 1918 in federal court because [T]he statute, applying as it did to all occupations alike, was not shown to be a health measure, but was a "meddlesome interference" with individual rights . . . . On similar grounds the Solicitor-general of the United States declined to allow the case to be appealed to a higher court, so that no final test was had on this, the only enforceable universal eight-hour law covering private employment enacted in America up to the beginning of 1936. JOHN R. COMMONS & JOHN B. ANDREWS, PRINCIPLES OF LABOR LEGISLATION 140 (4th rev. ed. 1936) (emphasis added).
80. See KOCKA, supra note 5, at 178 (noting that "[e]xcept for the large Brotherhood of Railway Clerks and the tiny RCIPA, at the end of the 1920s there were no white collar unions in the private sector"). For a study of white-collar unionization in the decade following the Depression, see NATIONAL INDUS. CONF. BD. INC., STUDIES IN PERSONNEL POLICY, No. 101, WHITE COLLAR UNIONIZATION (1949).
81. See DEVAULT, supra note 5; OLIVIER ZUNZ, MAKING AMERICA CORPORATE, 1870-1920, at 125-48 (1990).
82. I thank Don Herzog for putting the distinction in these terms.
83. See infra text accompanying notes 40-81.
84. 2 F.W. TAUSSIG, PRINCIPLES OF ECONOMICS § 47-6 (3d rev. ed. 1936). The five groups are: (1) "day laborers . . . who have nothing to offer but their bodily strength . . . [including] factory employees whose work is of the simplest sort"; (2) "those who, while not needing specialized skill, yet bear some responsibility and must have some alertness of mind" (for example, trolley motormen and miners); (3) "the aristocracy of the manual laboring class: the skilled workmen"; (4) "the group that approaches the well-to-do: the lower middle class, which avoids rough and dirty work, and aims at some sort of clerical or semi-intellectual occupation. Here are clerks, bookkeepers, salesmen, small tradesmen, railway conductors, foremen, superintendents, teachers in the lower grades"; (5) "the well-to-do - those who regard themselves as the highest class and certainly are the most favored class. Here are the professions, so called - the lawyers, physicians, clergymen; teachers of the higher grades; salaried officials, public and private, in positions of responsibility and power; not least, the class of business men and managers of industry, who form in democratic communities the backbone of the whole group." Id.
85. Id. § 47-6, at 144.
86. Id. § 47-6(4).
87. See id.
88. Id.
89. Id. § 47-7, at 147; accord KOCKA, supra note 5, at 178-81 (noting that in the 1920s many white-collar workers earned less than skilled manual workers and that widening access to commercial and technical education increased competition for white-collar jobs); see also DEVAULT, supra note 5, at 24-47 (discussing clerical education).
90. TAUSSIG, supra note 40 § 47-7, at 144.
91. LEON C. MARSHALL, THE STORY OF HUMAN PROGRESS: AN INTRODUCTION TO SOCIAL STUDIES 407-08 (1925).
92. Id. at 408.
93. See id. at 407.
94. See ROBERT S. LYND & HELEN MERRELL LYND, MIDDLETOWN: A STUDY IN AMERICAN CULTURE (1929)
95. [hereinafter LYND & LYND, MIDDLETOWN];
96. ROBERT S. LYND & HELEN MERRELL LYND, MIDDLETOWN IN TRANSITION: A STUDY IN CULTURAL CONFLICTS (1937)
97. [hereinafter LYND & LYND, MIDDLETOWN IN TRANSITION]. Sociology as a field did not take up the problem of class as a major area of research interest until after World War I.
98. See Howard E. Jensen, Editorial Note to MILTON M. GORDON, SOCIAL CLASS IN AMERICAN SOCIOLOGY vii (1950). Despite the fact that "[n]either of the Lynds was a sociologist or had primary training in sociology. . . .
99. [Robert] Lynd became a 'sociologist' of the first order," HOWARD W. ODUM, AMERICAN SOCIOLOGY: THE STORY OF SOCIOLOGY IN THE UNITED STATES THROUGH 1950, at 391-92 (1951), and the Lynds' work is now and was in its time widely recognized as a major contribution to the field of sociology. The Lynds' work "was an instantaneous success" both among popular readers and academics.
100. See JOHN MADGE, THE ORIGINS OF SCIENTIFIC SOCIOLOGY 128 (1962). For further discussion of the Lynds, their background, and their influence, see GORDON, supra, at 63-84;
101. MICHAEL D. GRIMES, CLASS IN TWENTIETH-CENTURY AMERICAN SOCIOLOGY: AN ANALYSIS OF THEORIES AND MEASUREMENT STRATEGIES 56-62 (1991) (noting that "[t]heir studies of 'Middletown' represent the first use of class as an organizing dimension in a holistic setting within American sociology and served as an important stimulus for subsequent research on the subject");
102. CHARLES HUNT PAGE, CLASS AND AMERICAN SOCIOLOGY: FROM WARD TO ROSS 216 n.7, 236, 252 (1964). The similar work of social anthropologist W. Lloyd Warner and his school on "Yankee City" falls just outside the time frame of this article.
103. See, e.g., W. LLOYD WARNER & PAUL S. LUNT, THE SOCIAL LIFE OF A MODERN COMMUNITY (1941);
104. W. LLOYD WARNER & J.O. LOW, THE SOCIAL SYSTEM OF THE MODERN FACTORY - THE STRIKE: A SOCIAL ANALYSIS (1947).
105. LYND & LYND, MIDDLETOWN, supra note 50, at 22-23.
106. Id. at 22.
107. Id. at 22 n.3.
108. Id. at 23.
109. Id. at 23 n.3; cf. MADGE, supra note 50, at 136 (noting the problems, "such as where one should place the dentist, who is obviously a professional man although he deals with things, that is, teeth, or the sculptor or musician, who equally deals with things," and noting with admiration that "[s]ensibly [the Lynds] decided not to be too pedantic about such cases but put them in with the business classes").
110. See LYND & LYND, MIDDLETOWN IN TRANSITION, supra note 50.
111. Id. at 71.
112. Id. at 72-73 ("Should the long term trend actually prove to be toward the contracting of working class hopes to the permanent boundaries of nineteen dollar suits, $2.50 shoes, and a second hand Chevie, while raises, promotions - all the things associated with 'going up in the world' - are largely confined to the three in each ten of Middletown's income earners who fall in the business class," then there will be "a system of social organization which no one in Middletown is today ready to call 'American.'")
113. Id. at 455.
114. Id. at 455-56.
115. The Lynds saw this trend as exacerbated by the Depression but not entirely determined by it. See id. at 72. This is in part because in the 10 years between the field work underlying the two volumes, Middletown first went through a period of boom before going through depression. See id. at xi.
116. See LEWIS COREY, THE CRISIS OF THE MIDDLE CLASS 16 (1935). Lewis Corey was the nom de plume of Louis Fraina. See DENNING, supra note 25, at 99-100. Jürgen Kocka identifies Corey/Fraina as a "[r]elatively orthodox Marxist[]" who was influenced by the German literature on the "new middle classes" long before that literature had come to influence mainstream sociologists. See KOCKA, supra note 5, at 203-05. Denning refers to him as "one of the most important Western Marxists in the United States" and "the great theorist of the Popular Front social movement," particularly because of the attention he paid to the new middle classes. DENNING, supra note 25, at 99. For a discussion of Corey's book The Crisis of the Middle Class, see DENNING, supra note 25, at 101.
117. See LYND & LYND, MIDDLETOWN IN TRANSITION, supra note 50, at 460; accord Ralph G. Hurlin & Meredith B. Givens, Shifting Occupational Patterns, in RECENT SOCIAL TRENDS IN THE UNITED STATES: REPORT OF THE PRESIDENT'S RESEARCH COMMITTEE ON SOCIAL TRENDS, 268, 288-89 (Committee on Social Trends, Inc. ed., 1 vol. ed. 1934) [hereinafter RESEARCH COMMITTEE ON SOCIAL TRENDS] ("The clerical or white collar employees are quite as dependent upon modest earnings as industrial wage earners but they are commonly jealous of their status as a part of the middle class.").
118. LYND & LYND, MIDDLETOWN IN TRANSITION, supra note 50, at 460.
119. See JAMES G. SCOVILLE, THE JOB CONTENT OF THE U.S. ECONOMY, 1940-1970, at 5-6, 25 (1969).
120. CONK, supra note 20, at 26 (quoting U.S. BUREAU OF THE CENSUS, SIXTEENTH CENSUS OF THE UNITED STATES, 1940: COMPARATIVE OCCUPATION STATISTICS FOR THE UNITED STATES, at xi) (internal quotation marks omitted).
121. Alba M. Edwards, A Social-Economic Grouping of the Gainful Workers of the United States, 28 J. AM. STAT. ASSN. 377 (1933).
122. For a pre-1940 publication of the scale, see id.; for its pre-1940 use, see PERCY E. DAVIDSON & H. DEWEY ANDERSON, OCCUPATIONAL MOBILITY IN AN AMERICAN COMMUNITY 8 (1937). For the use of the scale in the 1940 census, see CONK, supra note 20, at 62.
123. CONK, supra note 20, at 63 (quoting Edwards).
124. For statistics on the femaleness of the clerical workforce, see Alba M. Edwards, The "White Collar Workers," 38 MONTHLY LAB. REV. 501 (1934). The gender-related class implications are drawn from ZUNZ, supra note 37, at 138-48. Feminization's alteration of the class definition of occupations is a two-edged sword. Entry of women into an occupation in significant numbers tends to downgrade the occupation's prestige and income earnings, while their initial entry serves to render rough, traditionally male occupations genteel - with the gentility of female manners being coded as middle class. The way this balanced in white-collar work was that women entered these jobs before marriage, but left them upon marriage (often by rule). They therefore came to dominate only the lower-level white-collar jobs, and men did not have to compete with them for advancement. For men's occupational prestige, this was the best of both worlds - while it lasted.
125. DAVIDSON & ANDERSON, supra note 68, at 7-8.
126. See CONK, supra note 20, at 68-69.
127. For earlier popular culture examples, see, e.g., STEVEN J. ROSS, WORKING-CLASS HOLLYWOOD: SILENT FILMS AND THE SHAPING OF CLASS IN AMERICA xiii, 9, 14-15, 19-20, 175-80, 198-208 (1998) (exploring silent films and their audiences in the 1910s and 1920s, and discussing the class identity of white-collar workers as in flux during this period and as influenced by film images). Ross concludes on the basis of his study that "[t]he 1920s marked a turning point . . . in the formation of modern understandings of class and class relations. The proliferation of white-collar employees and the widespread participation of wage earners in a flourishing consumer economy created great confusion over modern class identities." Id. at 175. The centrality of patterns of consumption in class definition in the period make clear the identity crisis that would have been suffered by white-collar workers in the Depression - when, in the already-quoted words of Lorena Hickok, they could no longer afford to "keep those white collars laundered." See supra text accompanying note 20;
128. see also CHRISTOPHER P. WILSON, WHITE COLLAR FICTIONS: CLASS AND SOCIAL REPRESENTATION IN AMERICAN LITERATURE, 1885-1925 (1992).
129. SINCLAIR LEWIS, BABBITT 55 (1922); see also id. at 155.
130. Id. at 62.
131. Id. at 309.
132. Id. at 319.
133. Id. at 390.
134. Id. at 401.
135. Id. at 53.
136. Id. at 42. For the suggestion that Babbitt became too popular to be genuinely challenging to its readers, see WILSON, supra note 73, at 249.
137. The contested status of the upper-level white-collar worker in this period is discussed in a rich literature within the field of business history. See, e.g., REINHARD BENDIX, WORK AND AUTHORITY IN INDUSTRY: IDEOLOGIES OF MANAGEMENT IN THE COURSE OF INDUSTRIALIZATION 288-319 (1956);
138. CHARLES PERROW, COMPLEX ORGANIZATIONS: A CRITICAL ESSAY 14-58 (3d ed. 1986);
139. Sanford Jacoby, American Exceptionalism Revisited: The Importance of Management, in MASTERS TO MANAGERS: HISTORICAL AND COMPARATIVE PERSPECTIVES ON AMERICAN EMPLOYERS 173, 197 (Sanford Jacoby ed., 1991) [hereinafter MASTERS TO MANAGERS]
140. . Taking this theme into the 1940s is HOWELL JOHN HARRIS, THE RIGHT TO MANAGE: INDUSTRIAL RELATIONS POLICIES OF AMERICAN BUSINESS IN THE 1940s (1982). The business history literature is very important because key debates "about the changes in status, technology and the occupational structure took place . . . in the journals of personnel managers and the engineering profession." CONK, supra note 20, at 69. For examples from the personnel literature of the 1920s and 1930s, see infra text accompanying notes 107-20.
141. And on the general question of the self-understanding of white-collar workers, see C. WRIGHT MILLS, WHITE COLLAR: THE AMERICAN MIDDLE CLASSES (1951).
142. See NATIONAL INDUS. CONF. BD., RESEARCH REP. No. 68, LEGAL RESTRICTIONS ON HOURS OF WORK IN THE UNITED STATES: A REFERENCE MANUAL 24 (1924).
143. See id. at 33 tbl.2 (1923 data) (9 states).
144. See id. at 38 tbl.2 (1923 data) (4 states).
145. See S. 5267, 72d Cong. (1932); see also 76 CONG. REC. 820 (1932) (referring Black's bill to the Judiciary Committee).
146. S. 5267, 72nd Cong. (1932).
147. Black was directly influenced by the work of Arthur Dahlberg, an engineer whose writing on the subject was well-regarded in business circles. Dahlberg's most important work on the subject was ARTHUR DAHLBERG, JOBS, MACHINES, AND CAPITALISM (1932). For a discussion of Dahlberg and his influence, see HUNNICUTT, supra note 15, at 269-78.
148. Letter from Hugo Black to President Roosevelt, (Mar. 10, 1933) (FDR/OF 372, Hours of Labor, Box 1).
149. See Senator Hugo Black, Radio Speech Concerning S. 5267 (Jan. 9, 1933), in 76 CONG. REC. 1443 (1933).
150. Id., in 76 CONG. REC. 1444 (1933). Black did place special emphasis on pressures on manual work, stressing "the increased productivity of machine America" and its failure to "absorb [its] displaced labor." Id., in 76 CONG. REC. 1443 (1933). But if displaced manual work was his main concern, the rest of the address was not limited to that concern, and neither was the text of his bill.
151. See id., in 76 CONG. REC. 1444 (1933).
152. See FRANCES PERKINS, THE ROOSEVELT I KNEW 194 (1946);
153. see also KENNETH FINEGOLD & THEDA SKOCPOL, STATE AND PARTY IN AMERICA'S NEW DEAL 10, 69-71 (1995).
154. For leading critiques of industrial planning under the NIRA, see G. WILLIAM DOMHOFF, STATE AUTONOMY OR CLASS DOMINANCE? CASE STUDIES ON POLICY MAKING IN AMERICA 101-16 (1996); FINEGOLD & SKOCPOL, supra note 93;
155. ELLIS W. HAWLEY, THE NEW DEAL AND THE PROBLEM OF MONOPOLY (1966);
156. MICHAEL M. WEINSTEIN, RECOVERY AND REDISTRIBUTION UNDER THE NIRA (1980).
157. For a contemporaneous critique, see LEVERETT S. LYON ET AL., THE NATIONAL RECOVERY ADMINISTRATION: AN ANALYSIS AND AN APPRAISAL (1935).
158. For a study focusing on NRA labor policy, see DONALD R. BRAND, CORPORATION AND THE RULE OF LAW (1988). Efforts to achieve thirty-hours legislation continued during the NRA period. See, e.g., Partial Redraft of H.R. 8492 by Frances Perkins, Secretary of Labor; Donald Richberg, General Counsel of NRA; William Green, President of AFL; and Representative William Connery, Chairman of the House Labor Committee, attached to Letter from Isabella Greenway to Eleanor Roosevelt (May 16, 1934) (FDR/OF 372, Hours of Labor, Box 1) (setting thirty hours as the hours maximum for codified industries, with exceptions based on shown need).
159. The NRA also included § 7(a), which gave labor the right to organize. That provision was underenforced throughout the NIRA period. See, e.g., SIDNEY FINE, THE AUTOMOBILE UNDER THE BLUE EAGLE: LABOR, MANAGEMENT, AND THE AUTOMOBILE MANUFACTURING CODE 75-95 (1963);
160. R.W. Fleming, The Significance of the Wagner Act, in LABOR AND THE NEW DEAL 121, 126 (Milton Derber & Edwin Young, eds., 1957).
161. Letter from Frances Perkins to Donald Richberg 1 (Mar. 22, 1933) (Papers of Donald Richberg, Library of Congress [hereinafter LC, Richberg Papers], Container 1, Correspondence Feb.-May, 1933).
162. Id. at 2.
163. For an introduction to Richberg, see supra text accompanying note 27.
164. See Letter from Frances Perkins to Editor, WASH. POST, Apr. 20, 1933, at 1 (FDR/OF 15, DOL, Box 1, 1933 folder).
165. Memorandum from Alexander Sachs to Administration 1 (May 23, 1933) (Alexander Sachs Papers, Roosevelt Archives [hereinafter FDR, Sachs Papers], Box 124, Labor: Wages, Hours, Stabilization).
166. Id. at 1.
167. Cf. CONK, supra note 20, at 30 (attributing to Raymond Williams the distinction between "a residual cultural form and an emergent one").
168. As we have seen, any attempt to defer to the expertise of the census would merely build the same problems into REX's models, as the same struggle was taking place inside the Census Bureau. See id. at 44 (arguing that the census under Alba Edwards had merely "confound[ed] economic or technical classifications of the workforce with the general social or cultural divisions of the American population"). For a discussion of Alba Edwards and census occupational classification, see supra text accompanying notes 65-72.
169. See PAUL H. DOUGLAS, IN THE FULLNESS OF TIME: THE MEMOIRS OF PAUL H. DOUGLAS 70-77 (1972) (discussing his role and his policy conflicts with John Commons).
170. For earlier comparative work by Douglas on the subject of unemployment, see PAUL H. DOUGLAS & AARON DIRECTOR, THE PROBLEM OF UNEMPLOYMENT (1931), which does not discuss issues of unemployment among white-collar workers.
171. PAUL H. DOUGLAS, STANDARDS OF UNEMPLOYMENT INSURANCE 51 (1932).
172. Id. Douglas is here making recommendations for state and federal legislation. His $60-a-week salary cutoff is quite high for his times: in his appendix, he includes the Ohio unemployment compensation statute, which excludes from the definition of "employee" (the covered group) "any person employed at other than manual labor at a rate of remuneration of two thousand dollars a year or more," id. app. C, at 240, or $38 dollars a week. Other unemployment insurance proposals expressly excluded upper-level workers. See, e.g., Report of Unemployment Insurance Committee to Industrial Advisory Board (June 18, 1934) (FDR/ OF 121a, Unemployment Insurance, Box 1, 1933-34) (proposing an exclusion for "professional people, such as physicians, lawyers, engineers," id. at 8, and describing a proposed plan by the American Association of Social Security to exempt "non-manual workers with salaries of $3,000 per year or more," id. at 27). For a discussion of the problem of the economic situation of white-collar workers in the Depression, see KOCKA, supra note 5, at 194-95 ("American white collar workers were hit hard by the economic crisis, though somewhat later and on the whole a little less hard than manual workers. . . . On the other hand, blue collar workers gained more than white collar employees from the recovery of 1933/34 which was supported by the minimum wage and maximum worktime provisions of New Deal legislation.").
173. See Charles J. McGuirk, Am I Underpaying or Overpaying My Men?, 57 PRINTER'S INK, Mar. 31, 1927, at 5 ,
174. excerpted in 26 MGMT. REV. 159 (1927).
175. See George Filipetti, Instal[l]ment Buying and Business Depressions, 20 MGMT. REV. 15, 15 (1931);
176. see also F.W. Pierce, Basic Principles of Wage and Salary Administration, 11 PERSONNEL 111, 112 (1935) (noting that one of the reasons traditionally "salaried" work was compensated on that basis was that "the companies have been slow to set up standards for this kind of work").
177. See J.O. Hopwood, Administration of Wages and Salaries, 11 PERSONNEL 99, 105 (1935).
178. See RICHARD GILLESPIE, MANUFACTURING KNOWLEDGE: A HISTORY OF THE HAWTHORNE EXPERIMENTS 11 (1991).
179. See, e.g., NATIONAL INDUS. CONF. BD., INC., SUPPLEMENTAL BONUSES FOR WAGE EARNERS, SUPERVISORS AND EXECUTIVES (1927).
180. Pearce C. Kelley, Selecting Executives, 10 PERSONNEL 8, 14 (1934).
181. C.R. Dooley, The Philosophy and Procedure of a Job Analysis, 10 PERSONNEL 67, 67 (1934).
182. See A.F. Kindall, Job Description and Rating, 14 PERSONNEL 122, 129 (1938) (finding its job analysis and rating program "adaptable to practically all jobs valued at $4,000 a year or less"). "This includes factory, office, sales, clerical, salaried, and supervisory jobs held by men and women in all sections of the country." Id. With "[c]ertain adjustments," readers were assured, the system would work for higher-valued salaried jobs as well. See id.
183. The final report of the Hawthorne experiments is F.J. ROETHLISBERGER & WILLIAM J. DICKSON, MANAGEMENT AND THE WORKER: AN ACCOUNT OF A RESEARCH PROGRAM CONDUCTED BY THE WESTERN ELECTRIC COMPANY, HAWTHORNE WORKS, CHICAGO (1939). The results of the study were known in the literature long before the book was published. See GILLESPIE, supra note 110, at 196. The heavily psychological emphasis of the Hawthorne project contributed to the creation of a movement called "human relations." See PERROW, supra note 82, at 97 (discussing "Hawthorne and All That" in a chapter on "The Human Relations Model"). As Gillespie's study of the Hawthorne Experiments stresses, the basic thrust of the movement was that "workers . . . could be satisfied only if managers extended their control over the social organization of the workplace." GILLESPIE, supra note 110, at 197. Thus the "scientific management" label, in the sense of the use of best-practice social and organizational techniques to impose bureaucratic control over workers and their work, is appropriate to the Hawthorne study.
184. See ROETHLISBERGER & DICKSON, supra note 114, at 88.
185. See GILLESPIE, supra note 110, at 200 ("They argued that the attitudes and complaints of workers and supervisors had to be analyzed in the same way that Radcliffe-Brown had studied the beliefs and sentiments of the Andaman Islanders." (emphasis added)). Just as being subjected to the ministrations of personnel experts was a sign of diminished status, it was a sign of the superior status of foremen at Ford in the heyday of its experiments in welfare capitalism that "[they] won virtual exemption from the sociology department's investigations." ZUNZ, supra note 37, at 135.
186. This phenomenon is noted in that icon of the representation of work in 1990s American popular culture: the Dilbert corpus. See SCOTT ADAMS, THE DILBERT PRINCIPLE: A CUBICLE'S-EYE VIEW OF BOSSES, MEETINGS, MANAGEMENT FADS & OTHER WORKPLACE AFFLICTIONS 1 (1996) ("A major technology company simultaneously rolled out two new programs: (1) a random drug testing program, and (2) an 'Individual Dignity Enhancement' program.").
187. Another factor tending to lower the self-perceived status of managers was the unionization of their plants. See Jacoby, supra note 82, at 197. For similar conclusions drawn from 1934-35 fieldwork focusing on a 1933 strike, see WARNER & Low, supra note 50, at 187 (for dates of fieldwork, see id. at 5 n.3). In part due to unionization - or its avoidance - but also in part due to ideological trends within the field of personnel management itself, some personnel managers aimed to reorganize blue-collar work by adopting some of what had previously been the definitive markers of white-collar work: for example stable employment and well-established lines of promotion. See SANFORD JACOBY, EMPLOYING BUREAUCRACY: MANAGERS, UNIONS, AND THE TRANSFORMATION OF WORK IN AMERICAN INDUSTRY, 1900-1945, at 82 (1985) (noting the early work of the vocational guidance movement); id. at 255 ("The continuing irony in personnel management was that it best served the purpose of thwarting unionism by introducing the same reforms the unions sought.").
188. For the underutilization of "best practice" techniques, see Daniel Nelson, Scientific Management and the Workplace, 1920-1935, in MASTERS TO MANAGERS, supra note 82, at 86-89; See also BENDIX, supra note 82, at 319;
189. JACOBY, EMPLOYING BUREAUCRACY, supra note 118, at 154, 157;
190. GERALD E. KAHLER & ALTON C. JOHNSON, THE DEVELOPMENT OF PERSONNEL ADMINISTRATION, 1923-1945, at 22-23 (1971) (noting the "elaborately organized personnel department described in the textbooks existed only in some of the large firms" in the 1920s).
191. See Pierce, supra note 108, at 112 (noting that the company is "working toward the definition of certain intermediate jobs in both the supervisory and clerical forces on fixed rate schedules without classifying them as wage-earners"). Similarly, the payment of salaries rather than hourly wages to foremen - whose status as white-collar workers has always been subject to question - was used as an indicator of their heightened status. See ZUNZ, supra note 37, at 136.
192. ROETHLISBERGER & DICKSON, supra note 114, at 340.
193. For the drafting of the statute, see, e.g., BERNARD BELLUSH, THE FAILURE OF THE NRA 9-13 (1975);
194. COLIN GORDON, NEW DEALS: BUSINESS, LABOR, AND POLITICS IN AMERICA, 1920-1935, at 171 (1994).
195. See FINEGOLD & SKOCPOL, supra note 93, at 92. Baruch was not flattering in his evaluation of Johnson. Baruch is described by Perkins as warning her: "He's been my number-three man for years. I think he's a good number-three man, maybe a number-two man, but he's not a number-one man. He's dangerous and unstable. . . . I'm fond of him, but do tell the President to be careful." PERKINS, supra note 93, at 200-01.
196. On the appointment of Richberg and the true nature of his role - far broader than the title General Counsel would suggest - see HUGH S. JOHNSON, THE BLUE EAGLE FROM EGG TO EARTH 201 (1935); see also HAWLEY, supra note 94;
197. THOMAS E. VADNEY, THE WAYWARD LIBERAL: A POLITICAL BIOGRAPHY OF DONALD RICHBERG (1970). Richberg was a union-side labor lawyer, and Johnson's unfamiliarity with labor issues and lack of a base of support within the labor movement was one of the reasons he appointed Richberg. See BELLUSH, supra note 122, at 32-33; VADNEY, supra, at 121. But in the end, Richberg turned "away from labor influences in a gesture of fair-mindedness to all interests . . . [but] succumb[ed] to business influences - which, after all, were the stronger of the two in the NRA. . . . [a] point that Richberg failed to take adequate account of." VADNEY, supra, at 123.
198. See VADNEY, supra note 124, at 144. Marshall was one of two academics on this Board; the other was institutional economist and Yale Law School professor Walton Hamilton. See id. In addition, Paul Douglas was a member of the NRA's Consumer Advisory Board and also served briefly as a member of the code authority for the consumer finance industry. Both are described by Douglas as disheartening experiences. See DOUGLAS, supra note 104, at 64-65.
199. Of course, not all law schools and government agencies participated in Progressive and Realist trends to equal degrees. Yale and Columbia were the institutional "seedbed" of legal realism in law teaching, and progressive tendencies were strong at Harvard. See PETER H. IRONS, THE NEW DEAL LAWYERS 7 (1982). FINEGOLD & SKOCPOL, supra note 93, at 97, observe that "NRA lawyers were older, less frequently educated at Ivy League law schools, and more experienced in business and politics" than were the lawyers in more liberal agencies. See also IRONS, supra, at 30 (noting that although Blackwell Smith, who administered the NRA legal division, was a young Columbia law graduate, he "leaned toward older, experienced lawyers for responsible NRA posts . . . with prior business and political experience").
200. The leading studies of New Deal lawyers focus on lawyers in the private sector, see IRONS, supra, or on litigators within government, see RONEN SHAMIR, MANAGING LEGAL UNCERTAINTY: ELITE LAWYERS IN THE NEW DEAL (1995). They have less to offer with regard to government lawyers as negotiators and policymakers.
201. On that issue, for a helpful insider account from a Yale-trained NRA lawyer who later joined the Yale faculty, see THOMAS I. EMERSON, YOUNG LAWYER FOR THE NEW DEAL 18-22 (1991). His experience suggests that the aspirations and frustrations of REX, my ideal typical New Deal expert, were alive and well in the NRA.
202. Also central was the Progressive/Realist view that in so doing, they were acting in the public interest rather than in the narrow self-interest of any one particular social group. An example is Donald R. Richberg's presentation of himself to Congress in testimony on the causes of the Depression. Richberg, by then a noted representative of union interests in the railroad industry, described himself as having no authority "save that of a life long advocate of public interests." See Testimony of Donald R. Richberg before the Committee on Finance, United States Senate, Depression Causes and Remedies 7 (Feb. 23, 1933) (LC, Richberg Papers, Container 43, Relief for Unemployment). For a fine account of the complexity of progressive lawyers' claim that lawyering for clients can be in the public interest, see Clyde Spillenger, Elusive Advocate: Reconsidering Brandeis as People's Lawyer, 105 YALE L.J. 1445 (1996).
203. There is a huge literature on these issues. See, e.g., NEIL DUXBURY, PATTERNS OF AMERICAN JURISPRUDENCE (1995);
204. MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: THE CRISIS OF LEGAL ORTHODOXY (1992);
205. LAURA KALMAN, LEGAL REALISM AT YALE, 1927-1960 (1986);
206. BARRY DEAN KARL, THE UNEASY STATE: THE UNITED STATES FROM 1915-1945, at 60-62 (1983) [hereinafter KARL, UNEASY STATE];
207. EDWARD A. PURCELL, JR., THE CRISIS OF DEMOCRATIC THEORY: SCIENTIFIC NATURALISM AND THE PROBLEM OF VALUE (1973);
208. JOHN HENRY SCHLEGEL, AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCIENCE (1995); SHAMIR, supra note 126, at 131-57;
209. WILLIAM TWINING, KARL LLEWELLYN AND THE REALIST MOVEMENT (1973).
210. See BARRY DEAN KARL, EXECUTIVE REORGANIZATION AND REFORM IN THE NEW DEAL: THE GENESIS OF ADMINISTRATIVE MANAGEMENT, 1900-1939, at 22 (1963) [hereinafter KARL, EXECUTIVE REORGANIZATION] (Hoover era); KARL, UNEASY STATE, supra note 128, at 39 (Wilson era). Hoover's confidence in engineers continued long past the end of his administration.
211. See, e.g., Calls Lag in Work Job for Engineers, N.Y. TIMES, July 14, 1939, at 4 ("Former President Herbert Hoover suggested today that the engineers of the nation might succeed where economists, politicians and sociologists had failed in finding a solution to the unemployment problem. . . . He called engineers the world's 'troubleshooters,' 'the diagnosticians of industry,' and 'the third party between capital and labor.' 'Your profession is to make things work,' he said.").
212. KARL, UNEASY STATE, supra note 128, at 23 (quoting Veblen).
213. See id. at 53.
214. See id. at 72 ("It is possible to view Hoover's faith in academic economics as naive, but the faith came naturally to a professional engineer, accustomed to calculating stresses and temperatures, and the social scientists shared his faith and aspired to make their new science as accurate and objective as his."). For a full account of realism and the social sciences, see SCHLEGEL, supra note 128.
215. See, e.g., Donald Richberg, Speech to the California Conference on Social Work 21 (May 15, 1930) (transcript available in the Library of Congress Manuscripts Division, LC, Richberg Papers, Box 43, Speeches 1930-Feb. 1933) ("It is essentially the task of those who seek social progress to destroy th[e] ruling fiction [of private property], and all the fictions, the illusions, the superstitions that have been so sedulously implanted in the minds of men and women that they are blind to their own needs, uncertain of their own aspirations, unable to distinguish between the leadership that would enslave them and the leadership that would set them free."); Donald Richberg, Economic Illusions Underlying Law, 1 U. CHI. L. REV. 96, 96 (1933) ("The ultimate sanction of law making rests upon the establishment of facts . . . . In the higher realms of legislative and judicial law making, it becomes a matter of grave importance that legislators and judges shall not declare that to be a fact which is not a fact, or declare that to be fixed and established which is uncertain and unpredictable. These preliminary observations may serve to introduce a brief criticism of the efforts of legislators and courts to write economic illusions into law.").
216. See DONALD R. RICHBERG, TENTS OF THE MIGHTY 214 (1930). Richberg was not himself an academic but was enamored of the academics with whom he socialized in the University Club at the University of Chicago. He wrote, "It was enlightening to a man who worked in 'the City' to contrast the discussion of social problems in the down town lunch clubs with the analysis of similar issues at a professor's dinnertable." Id. at 216.
217. Id. at 247.
218. Id. at 226, 252.
219. See PURCELL, supra note 128, at 78.
220. See KALMAN, supra note 128; SCHLEGEL, supra note 128 (chapters on Yale and Hopkins); TWINING, supra note 128, at 60-65. For a discussion of the Hopkins Institute, including Marshall's role, see SCHLEGEL, supra note 128, at 147-210.
221. See SCHLEGEL, supra note 128, at 66.
222. HORWITZ, supra note 128, at 181.
223. See KARL, EXECUTIVE REORGANIZATION, supra note 129, at 71.
224. See id. at 262.
225. PURCELL, supra note 128, at 26.
226. See id. at 142.
227. HORWITZ, supra note 128, at 211 (emphasis added); see also Lon Fuller, American Legal Realism, 82 U. PA. L. REV. 429, 458, 461 (1934). Sometimes the constraints were as much institutional as intellectual; to get funding for the Hopkins institute, Walter Wheeler Cook had to promise that the Institute would not be seeking to change the existing social order, but would instead "accept the existing social and economic organization as a basic fact." SCHLEGEL, supra note 128, at 155 (quoting Walter Wheeler Cook).
228. JAMES LANDIS, THE ADMINISTRATIVE PROCESS (1938), discussed in HORWITZ, supra note 128, at 220, and reprinted in part in AMERICAN LEGAL REALISM 159-63 (William W. Fisher III et al. eds., 1993).
229. The phrase is Jerome Frank's. See JEROME FRANK, LAW AND THE MODERN MIND 253 (1936).
230. James Landis wrote: One of the ablest administrators that it was my good fortune to know, I believe, never read, at least more than casually, the statues [sic] that he translated into reality. He assumed that they gave him power to deal with the broad problems of an industry and, upon that understanding, he sought his own solutions. Limitations upon his powers that counsel brought to his attention, naturally, he respected; but there is an enormous difference between the legalistic form of approach that from the negative vantage of statutory limitations looks to see what it must do, and the approach that considers a problem from the standpoint of finding out what it can do. LANDIS, supra note 146, reprinted in part in AMERICAN LEGAL REALISM 161 (William W. Fisher III et al. eds., 1993).
231. Report of the Special Committee on Administrative Law, Recommendations [known widely as "The Pound Report"], 63rd Annual Report of the American Bar Association 331, 344 (1938); see also id. at 345 (noting that "in many fields of administration there is no particular expertness").
232. See HORWITZ, supra note 128, at 220.
233. The Taft-Hartley Act and the Administrative Procedure Act were both instantiations of this view, and were both enacted in 1947.
234. Johnson noted that: It was . . . asserted that I had appointed too many Jews to important posts and Mr. Richberg was cited against me on that score . . . . Just for the sake of the record, I must say that Mr. Richberg is not a Jew . . . . I had several able Jews but they were the scant minority [of his staff] and every single one did an outstanding job. Not one was disloyal or self seeking. JOHNSON, supra note 124, at 212-13. Johnson's suggestion, of course, is that the reader would have instinctively assumed otherwise. On the attractiveness of government service to Jewish lawyers in the New Deal period, see G. EDWARD WHITE, Felix Frankfurter, the Old Boy Network, and the New Deal: The Placement of Elite Lawyers in Public Service in the 1930s, in INTERVENTION AND DETACHMENT: ESSAYS IN LEGAL HISTORY AND JURISPRUDENCE 149 (1994).
235. Donald R. Richberg, Address at Luncheon of Merchants' Association of New York 7 (July 6, 1933) (transcript available in LC, Richberg Papers, Container 43, Speeches 1930-Feb. 1933). Richberg's support of "scientific" policies seemed to end at the door to his own department. He strongly objected, for example, to being required to conform the wages of his own professional and clerical employees to those mandated by the government's system of job classification. See Memorandum from Donald R. Richberg to Hugh Johnson 2 (Oct. 24, 1933) (LC, Richberg Papers, Container 45, Subject File: NRA, Memoranda Sept.-Nov. 1933) (complaining that "the classification attempted simmers down to a demand that [staff] be paid according to the judgment of someone by whom they are not employed and who is not held responsible for their work").
236. Although Marshall had written on the subject of class as an economist, see infra note 289, few NRA administrators had expertise even in the core NRA field of industrial planning. For the view that the NRA failed because of a failure of state autonomy and capacity - i.e., the NRA's failure to set independent goals and to muster the expertise necessary to carry them out - see FINEGOLD & SKOCPOL, supra note 93, at 10, 51-53, 64, 92-103. This critique may not apply with equal force to NRA labor policy in general. See BRAND, supra note 94, at 288 ("The most revealing characteristic of early New Deal labor policy is . . . that progressive political elites were actively shaping policy to fulfill their own ideologically defined purposes rather than passively responding to interest group demands."). In the area of the present study, it is more accurate to say that officials aspired to autonomy than to say they achieved it.
237. Memorandum from Frances Perkins to President Roosevelt 2 (Mar. 12, 1935) (Roosevelt Archives, President's Secretary's File [hereinafter FDR/PSF], Box 57, Departmental File, Labor).
238. LYON ET AL., supra note 94, at 389-90. Work-spreading preceded the NIRA as the focus of administration hours policy. See, e.g., Letter from Frances Perkins to Donald R. Richberg (Mar. 22, 1933) (LC, Richberg Papers, Container 1, Correspondence Feb.-May 1933) (conveying President's invitation to attend a conference on "[t]he emergency problems having to do with distress due to unemployment and the method of overcoming the same," and listing "short hours as a means of further employment" on the agenda). Arthur Dahlberg, the engineer whose work on the concept of work-spreading as a solution to the unemployment problem influenced Hugo Black, see supra note 88, was by January 1934 on Sachs's staff at the NRA's Research and Planning section. See Note from Jacob Baker, Federal Emergency Relief Administration, to Col. Howe (Jan. 16, 1934) (FDR/OF 372, Hours of Labor, Box 1, 1934 folder) (referring to Dahlberg as a member of the NRA staff and as "one of the best men on the theory of shorter hours in the country").
239. National Recovery Administration Bulletin No. 1, Statement by the President of the United States of America Outlining Policies of the National Recovery Administration, in LEWIS MAYERS, A HANDBOOK OF NRA LAWS, REGULATIONS, CODES 27 (1933), and in JOHNSON, supra note 10, at 439. I found no preliminary drafts of or background materials on this speech in the Roosevelt Archives. The speech itself is found in Roosevelt Archives, President's Personal Files [hereinafter FDR/PPF], Speech Files, Box 15, No. 637, at 2-3.
240. Alba Edwards, The "White-Collar Workers," 38 MONTHLY LAB. REV. 501, 501 (1934). The term "white collar," as used here, "excludes, on the one hand, proprietors, managers, officials, and professional persons; and it excludes, on the other hand, the Overalls and apron' workers - the skilled, the semiskilled, and the unskilled manual workers." Id, 159. Per Roosevelt Archives archivists, Dec. 1996. The listing for a "white-collar" file places it in Roosevelt's alphabetical files; not all materials in the alphabetical files were preserved. This brings to mind the following, in a letter from Roosevelt to Donald Richberg when the latter was ill: I always remember President Wilson saying to me once - "Ninety-nine out of every one hundred matters which appear to you and me today as of vital Administration policy will be completely overlooked by history, and many other little things which you and I pay but scant heed to will begin to be talked about one hundred years from now." Letter from President Roosevelt to Donald Richberg (Dec. 28, 1934) (FDR/PPF 2418, Donald Richberg). Pity the poor archivist with space constraints in light of this too-true observation.
241. See Memorandum from President Roosevelt to Harry Hopkins (Apr. 15, 1935) (FDR/OF 444, FERA, Box 2, Mar.-May 1935) (cross-referencing in handwriting to the file on "the so-called 'white-collar' class").
242. The code negotiation process was as follows: The draft of a code was submitted to the N.R.A. by the trade association or associations within a particular industry. Public hearings were held before a deputy administrator, at which all parties concerned were privileged to appear and make suggestions for changes. The Labor Advisory Board, the Industrial Advisory Board, and the Consumer's Advisory Board were also consulted. Thereupon, a final draft of a code was framed by the deputy administrator and submitted to the Administrator. If approved by him, it was then submitted to the President, and if, in turn, approved by the President, with or without modifications, was promulgated as a code applicable to the entire coverage of that industry. BUREAU OF LABOR STATISTICS, U.S. DEPT. OF LAB., National Recovery Administration: Labor Aspects, in BULLETIN No. 616, HANDBOOK OF LABOR STATISTICS 489, 505 (1936) [hereinafter NRA: Labor Aspects].
243. See Exec. Order Approving Code of Fair Competition for the Cotton Textile Industry, Approved Code No. 1 (July 9, 1933), microformed on Presidential Executive Orders and Proclamations, CIS No. 1933-51-1 (Congressional Info. Serv.) [hereinafter CIS].
244. According to Johnson, not more than 20% of industries and 10% of establishments were organized into trade associations, and the non-PRA code process presumed the existence of such associations to take the initiative in code drafting and to broker the appointment of industry representatives to the code-enforcement authority. See JOHNSON, supra note 124, at 254.
245. Letter from President Roosevelt to General Hugh S. Johnson (July 25, 1933) (FDR/ OF 466, NRA, Box 1, July 1933).
246. See A Plan to Raise Wages, Create Employment, and Thus Restore Business - The President's Reemployment Agreement (July 27, 1933), microformed on CIS No. 1933-21-1 [hereinafter A Plan to Raise Wages].
247. Memorandum from John Dickinson, Assistant Secretary of Commerce, to President Roosevelt, prepared on request of Daniel C. Roper, Secretary of Commerce 3 (June 23, 1933) (FDR/OF 466, NRA, Box 1, June 1933 folder). Sour grapes may have played a part in Commerce's pessimistic appraisal of the NRA's competence. See FINEGOLD & SKOCPOL, supra note 93, at 56 (discussing Roosevelt's decision not to place enforcement of the NIRA in the hands of the Department of Commerce).
248. Memorandum from John Dickinson, supra note 166, at 3-4.
249. Discussion of Johnson's comments at meeting no. 1 of the Special Industrial Recovery Board 5 (June 19, 1933) (FDR/OF 466, NRA, Box 1, July 1933).
250. See id. at 6.
251. Id. at 10.
252. For the transcript, see National Archives, Record Group 9, National Recovery Administration [hereinafter NA/NRA], Records Maintained by the Library Unit, Transcripts of Hearings 1933-35, Entry 44 Box 73.
253. See id. at V-8 (June 27, 1933) (testimony of Robert Amory). From context, it appears that these engineers were shop-trained rather than college-trained.
254. It was the job of the "firemen" to maintain boiler and furnace fires - not, as in common parlance, to put them out. See id. at V-8 (June 27, 1933) (testimony of Robert Amory).
255. See id. at V-8 (June 27, 1933) (testimony of Robert Amory).
256. See id.
257. See id. at X-9 (June 27, 1933) (questioning of Robert Amory by Gen. Johnson).
258. See id. at X-9 (June 27, 1933) (testimony of Robert Amory).
259. "I know, I have been an engineer and firemen under automatic stokers, and the job is purely a supervisory job. It is hard work when something goes wrong; when anything does not go wrong it is a question of staying awake to watch the thing. We used to stay on the job 72 hours." Id. at V-10 (June 27, 1933) (testimony of Robert Amory) (emphasis added).
260. The "supervisory" concept was not infinitely malleable even for Amory. He suggested earlier in the hearing that the most skilled hands in charge of the warp tying machine - again, the skilled aristocracy of the mill - might be viewed as "supervisory," though he backed down from that usage as soon as he suggested it. See id. at H-8 (June 27, 1933) (testimony of Robert Amory).
261. Id. at X-10 (June 27, 1933) (testimony of Robert Amory).
262. Id. at X-10 (June 27, 1933) (testimony of Robert Amory).
263. Id. at X-10; V-11 (June 27, 1933) (testimony of Robert Amory).
264. Id. at O-7 (June 28, 1933) (testimony of William E.G. Batty).
265. See id. at O-7 (June 28, 1933) (testimony of William E.G. Batty).
266. See id. at V-10 (June 27, 1933) (testimony of Robert Amory).
267. Id. at X-8 (June 27, 1933) (statement by Gen. Johnson).
268. Id. at 40 (June 29, 1933) (testimony of Lucy Mason).
269. He accepted unlimited hours for special crews, but insisted that they be paid time and a half for their overtime. See NA/NRA, Consolidated Approved Code Industries File [hereinafter NA/NRA/CACI], Box 1802, Code of Fair Competition for the Cotton Textile Industry as Approved by Executive Order, July 9, 1933, NRA Release No. 331, at 2(4) and 2(6).
270. See the negotiations between Johnson and George A. Sloan, the head of the Cotton Textile industry board, reflected in Transcript of Hearing 33 (June 30, 1933) (NA/NRA/CACI Entry 44 Box 73). Johnson, for the record, summed up their negotiations by saying that "on the question of exemptions of hours of labor which formerly applied to the white collared man, there is some provision to be worked out." Sloan responded, "Yes sir. We state it should be worked out by July 30th as to office employees, with a view to bringing them within the provisions of the Code." Id.; see also NRA Press Release No. 25 (June 30, 1933) (FDR/ OF 466, NRA, Box 1, June 1933 folder) (describing two days of posthearing consultations between Sloan and NRA officials resulting in bringing office workers' hours within the 40 hour provision).
271. The definition of office workers was also a problem. Regarding "office" workers, an "explanation" tendered by the code authority in June 1934 categorized supply clerks and attendants in supply rooms as "office" employees. NRA officials objected to this interpretation, and it was rescinded. See Memorandum from C.W. Metcalf to R.I. Henry, President, Duncan Mills, Inc. (July 19, 1934) (NA/NRA/CACI, Entry 25, Box 1807, Litigation Memos, No. A-17).
272. Explanation of Cotton Textile Code provisions relative to wages and hours, compiled and revised by direction of Code Authority 21 (May 15, 1934) (NA/NRA/CACI, Entry 25, Box 1807, Cotton Textile Code).
273. Memorandum from Marshall to Ruth Reticker and Clarence Blaue 2 (Aug. 16, 1934) (NA/NRA/CAF Entry 265, Leon C. Marshall Papers, Box 3).
274. Id.
275. See id.
276. See infra text accompanying notes 263-68.
277. Agenda for the conference of the National Recovery Administration 3 (Mar. 5, 1934) (FDR/OF 466, NRA, Box 2, Jan.-Mar. 1933).
278. See A Plan to Raise Wages, supra note 165.
279. See id.
280. Note that the minimum wage under the PRA for these white-collar workers was lower than the minimum wage for the manual worker group - 37 1/2 cents an hour as opposed to 40 cents an hour.
281. See NRA Bulletin No. 3, President's Reemployment Agreement 7 (July 20, 1933) (NA/NRA Consolidated Administrative File [hereinafter NA/NRA/CAF], Entry 27, Box 6860).
282. The PRA was amended, for example, to eliminate the "tolerance" for six yearly forty hour weeks for factory/mechanical employees, to permit instead two weeks of extended hours for year-end inventories at a time-and-a-half rate, and to alter the wage differentials for small communities. See id. at 7-8. At the same time, employers were securing individually-tailored alterations of the PRA's core wage and hour requirements, often with little scrutiny from the agency. Some of these changes entirely excluded office workers or subjected them to peak hours provisions. See NRA Press Release No. 180 (Aug. 4, 1933) (NA/NRA/CAF Box 6860, Entry 27). I found no PRA interpretations in the files on "executive" or "managerial" in the interpretations files.
283. See General Interpretations and Explanations of the President's Reemployment Agreement, made by the Policy Board and Authorized Councils and Officials 24-25 (n.d.) (NA/NRA/CAF, Entry 27, Box 6860) (citing NRA Bulletin No. 4, Interpretation No. 6).
284. See id. (citing NRA Bulletin No. 4, Interpretation No. 19).
285. See id. (citing Card No. 1341).
286. NRA: Labor Aspects, supra note 161, at 502.
287. Id.
288. Letter from Paul B. Halstead to W.S. Nicholson (Nov. 1, 1933) (NA/NRA/CACI Entry 25, Box 1807, Cotton Textile).
289. Letter from W.S. Nicholson to Paul B. Halstead (Nov. 2, 1933) (NA/NRA/CACI Entry 25, Box 1807, Cotton Textile).
290. Statement of Mary W. Dawson, National Consumer's League, at the NRA Conference in Washington 2 (Feb. 28, 1934) (FDR/OF 466, NRA, Box 6, Codes Misc 1934, March 2, 1934).
291. National Consumer's League's Proposed Principles for Labor Provisions of NRA Codes 2 (Dec. 7, 1933) (FDR/OF 466, NRA, Box 6, Codes Misc 1934).
292. Id. at 3.
293. For a discussion of Broun's radical activism and influence, see DENNING, supra note 25, at 14-15.
294. Script and Program for the Heywood Broun Memorial Meeting, Manhattan Center 5 (Feb. 12, 1940) (Roosevelt Archives, Gardner Jackson Papers, Box 12, Folder, Heywood Broun) (quoting letter).
295. For a discussion of the activity of other white-collar unions in the period, see DENNING, supra note 25, at 15; KOCKA, supra note 5, at 206-34. The Newspaper Guild was unique in its level of participation in the NRA process. In contrast, for example, the Retail Clerks' International Protective Association (RCIPA), a union of retail clerks that affiliated with the AFL in 1888, was not strong enough to play more than a "minor role" in the formation of the NRA Retail Code in 1933. See id. at 55 (formation); id. at 211 (NRA role).
296. On Broun's motivation, see Heywood Broun, NRA Set Up a Spring Board and it Worked, GUILD REP., Nov. 23, 1933, at 1 (on file in Wayne State University Archives of Labor and Urban Affairs, Newspaper Guild Papers [hereinafter WSU/Guild]) ("The National Recovery Act was the direct inspiration for the organization of the Newspaper Guild of New York.").
297. For discussions of work-spreading, see, e.g., Hearing on Code of Fair Practices and Competition for the Newspaper Publishing Industry (Code 507-1-05) 1392 (Sept. 22, 1933) [hereinafter Sept. 1933 Newspaper Hearing] (NA/NRA/CAF Entry 44, Records Maintained by Library Unit, Transcripts of Hearings, Box 95) (testimony of Lloyd White).
298. Id. at 1362 (testimony of Alexander Lindsey).
299. NRA Press Release No. 147 (July 28, 1933) (NA/NRA/CAF Entry 27 Box 6860, PRA).
300. Sept. 1933 Newspaper Hearing, supra note 216, at 1393-94 (testimony of Lloyd White).
301. Id. at 1421 (testimony of Andrew Parker).
302. Id. at 1411 (testimony of Lloyd White).
303. See id. at 1419-21 (testimony of Andrew Parker).
304. Id. at 1395 (testimony of Lloyd White).
305. Id. at 1366 (testimony of Doris Fleeson, New York Daily News).
306. Id. at 1367 (testimony of Edward Angly).
307. Id. at 1367-68.
308. Id. at 1402-03 (testimony of Lloyd White).
309. Id. at 1419-20 (testimony of Andrew Parker).
310. Saul Nelson, The Newspaper Industry (1st ed. Nov. 11, 1933) (NA/NRA/CAF Entry 26, Box 6410, NRA Division of Economic Research and Planning).
311. See Memorandum from S.T.E. to Mr. McIntyre (Dec. 8, 1933) (FDR/OF 466, NRA, Box 5, Codes N) (noting upcoming meeting with the Guild).
312. See WSU/Guild, What the Guild Told Roosevelt at a Tea Party, GUILD REP., Jan. 12, 1934.
313. See Note Appended to Telegram from Heywood Broun to President Roosevelt (Feb. 1, 1934) (FDR/OF 466, NRA, Box 5, Codes N).
314. Executive Order, Code of Fair Competition for the Daily Newspaper Publishing Business, Feb. 17, 1934, CIS 1934-EO-6606-G.
315. Letter from President Roosevelt to General Hugh S. Johnson (Feb. 17, 1934) (FDR/ OF 466, NRA, Box 5, Codes N).
316. See Transcript of Public Hearing Called by the Code Authority of the Daily Newspaper Publishing Business 51 (Apr. 30, 1934) (NA/NRA/CAF Entry 44, Records Maintained by the Library Unit, Transcripts of Hearing, Box 96, Code 507-1-05) (testimony of Jonathan Eddy at the Waldorf Astoria in New York); see also Letter from Jack Tale to Jonathan Eddy (Dec. 20, 1934) (NA/NRA, Amendments, Box 1923) (referring to "the survey conducted by the Division of Research and Planning of the National Recovery Administration in cooperation with the Guild").
317. See Transcript of Hearing on Code of Fair Competition for the Daily Newspaper Publishing Industry (Dec. 5, 1934) (NA/NRA/CAF Entry 44, Records Maintained by the Library Unit, Box 95). The Bureau of Labor Statistics of the Department of Labor got involved in data-collection and analysis at the request of the Guild. See Letter from Jack Tate to Jonathan Eddy (Dec. 20, 1934), supra note 235, at 1.
318. See Transcript of Hearing on Code of Fair Competition for the Daily Newspaper Publishing Industry (Dec. 5, 1934), supra note 236.
319. For the proposal, see Guild Seeks $45 Minimum for News Men; Asks National Five-Day Week in Code Plan, GUILD REP., Jan. 15, 1935 (NA/NRA/CACI, Amendments, Box 1923).
320. See Sept. 1933 Newspaper Hearing, supra note 216, at 1363 (testimony of Alexander Lindsey) (urging "a minimum scale for all newspaper writers, as follows: $20 [per week] for all newspaper men of less than one year's experience; $30 for all newspaper men having between one and two years of experience; and a minimum of $40 for all newspaper men of over two years experience" on all papers).
321. See NRA Press Release No. 9685, Press Memo No. 1 (Jan. 17, 1935) (NA/NRA Consolidated Approved Industry Files, Amendments, Box 1923).
322. Letter from Spencer Reed, Chief, Unit 9, Research and Planning Division, to Gustav Peck, Assistant Administrative Officer, and Jack Tate, Administrator, Division VII (Mar. 22, 1935) (NA/NRA Consolidated Approved Industry File, Amendments, Box 1923).
323. To keep the scope of this article clear, I am not exploring the issue of maintaining appropriate "wage differentials," particularly regarding "wages in the higher brackets." But this was a question of pervasive concern throughout the NRA period and is an important part of the broader story of class line-drawing through New Deal programs. I hope to turn to it in subsequent writing.
324. Sept. 1933 Newspaper Hearing, supra note 216, at 1451 (testimony of Frank Morrison). The AFL represented five locals of newspaper writers.
325. Id. at 1402 (testimony of Lloyd White).
326. Id. at 1451-52 (testimony of Frank Morrison).
327. See discussion of LYND & LYND, MIDDLETOWN supra text accompanying notes 50-55.
328. NRA Press Release No. 9685, Press Memo No. 4, at 3 (Jan. 17, 1935) (NA/NRA Consolidated Approved Industry Files, Amendments, Box 1923); see also NRA Press Release No. 9685, Press Memo No. 5, at 3 (Jan. 17, 1935) (NA/NRA Consolidated Approved Industry Files, Amendments, Box 1923) (discussing statement by Mrs. Gladys Whitley Henderson, national president of Theta Sigma Phi, professional fraternity for women in journalism: "the proposed minimum wage is not even a decent living wage, much less an incentive for spending four years or more obtaining the academic and professional training that editors now demand").
329. Of course, it was not always clear that higher status meant that a job should receive higher pay. See NRA Press Release No. 9685, Press Memo No. 3, at 2 (Jan. 17, 1935) (NA/ NRA Consolidated Approved Industry Files, Amendments, Box 1923) (testimony of Guild Counsel Morris Ernst) ("We have heard that one of the reasons for a low wage scale is that there is romance in the business . . . . The man who owns the newspaper is not a competent judge of the romance. The workers would prefer a decent wage to romance - they can get the romance outside the office."). Alternatively, minimum wages could have been set solely on the basis of the ability of the industry to pay. See id.
330. Tate was a lawyer; he was identified as Division Counsel in May of 1934. Letter from Jack Tate to Solomon Barkin (May 2, 1934) (NA/NRA/CACI, Amendments, Box 1923).
331. Memorandum from Spencer H. Reed (Feb. 13, 1935) (NA/NRA/CACI, Code Histories, Box 1937).
332. See Memorandum from Clyde Mills to Jack Tate, Division Administrator (Mar. 2, 1935) (NA/NRA/CACI, Amendments, Box 1923).
333. Memorandum from Jack B. Tate to National Industrial Recovery Board 1 (Apr. 27, 1935) (NA/NRA/CACI, Amendments, Box 1923). For the Review Officer's memo, see Memorandum from Review Officer to Division Administrator, Graphic Arts Division (n.d.) (NA/NRA/CACI, Amendments, Box 1923, Serial No. 9190).
334. Memorandum from Jack B. Tate to National Industrial Recovery Board, supra note 252, at 1.
335. Id. at 2.
336. Id..
337. Memorandum from Review Officer to Division Administrator, Graphic Arts Division, supra note 252, at 2.
338. Memorandum from Jack B. Tate to National Industrial Recovery Board, supra note 252, at 2.
339. See Memorandum from Gustav Peck to Leon C. Marshall 2 (Apr. 29, 1935) (NA/ NRA/CACI, Amendments, Box 1923).
340. See Amendment to Code for the Daily Newspaper Publishing Business 1 (May 2, 1935) (NA/NRA/CACI, Amendments, Box 1923).
341. See, e.g., Summary of Telegram from William Connery, Representative from Boston and Chairman of the House Committee on Labor, to President Roosevelt (Nov. 26, 1933) (FDR/OF 466, NRA, Box 2, Nov.-Dec. 1933) (insisting that FDR "instruct Johnson to appoint a true representative of the organized industrial workers as co-administrator on each approved code").
342. See, e.g., Memorandum from M.H.M. to President Roosevelt (Nov. 16, 1933) (FDR/ OF 15, Department of Labor [hereinafter DOL], Box 1, 1933 folder) (noting that Frances Perkins called, asking Roosevelt to reject the Hotel Men's code as allowing overly long hours and exempting certain classes of employees).
343. Memorandum from Frances Perkins to President Roosevelt (June 18, 1934) (FDR/ OF, OF 466, NRA, Box 2, June-July 1934).
344. Definition and Classification of Occupations in Industries, attached to Memorandum from Stanley I. Posner to Leon C. Marshall § II-2 (Aug. 6, 1934) (NA/NRA/CAF Entry 265, Box 3, Files of Leon C. Marshall, Folder 62, Definitions, Classification, Explanation). I attribute this to Marshall from context.
345. Id.
346. Memorandum from C.R. Dooley to Leon C. Marshall (June 4, 1934) (NA/NRA/ CAF Entry 265, Box 1, Files of Leon C. Marshall).
347. See DANIEL NELSON, MANAGERS AND WORKERS: ORIGINS OF THE NEW FACTORY SYSTEM IN THE UNITED STATES, 1880-1920, at 151 (1975); see also JACOBY, supra note 118, at 150.
348. DIVISION OF STANDARDS & RES., U.S. DEPT. OF LAB., DICTIONARY OF OCCUPATIONAL TITLES (1939) [hereinafter OCCUPATIONAL DICTIONARY].
349. See Note from Blackwell Smith to Leon C. Marshall (n.d.) attached to Memorandum (Aug. 8, 1934) (NA/NRA/CAF Entry 265, Box 3, File No. 62, Definition, Classification, Explanation). Blackwell Smith was second to Richberg in the office of General Counsel and, at this stage, was the person Marshall reported to on matters of labor policy. Thomas Emerson describes him as "an extremely able lawyer, keen, acute, skilled at negotiation and compromise, resourceful in thinking up ideas. He was not a torch-bearer and not adept in initiating policy. But in terms of carrying out policy and adjusting differences he showed unusual ability." EMERSON, supra note 126, at 17.
350. Note from Leon C. Marshall, Some Notes on Labor Policy 2 (n.d.), attached to Note from Leon C. Marshall to Blackwell Smith (Aug. 6, 1934) (NA/NRA/CAF Entry 265, Papers of Leon C. Marshall, Box 2).
351. See Memorandum from Leon C. Marshall, Comments on NRA Operations with Particular Reference to Labor Situations 1 (n.d.) (NA/NRA/CAF Entry 265, Leon C. Marshall Papers, Box 2, Comments, No. 53) (including this as the only exemption in the simplest proposal he came forward with: "A simple statement of forty (40) hours per week, eight (8) hours per day, six (6) days in seven (7), with time and one-half for overtime, and with executive classes excepted").
352. Draft of Basic Code, attached to Memorandum from Blackwell Smith to Leon C. Marshall et al. (June 12, 1934) (NA/NRA/CAF Entry 265, Leon C. Marshall Papers, Box 2).
353. Memorandum from A. Heath Onthank, Assistant Review Officer, to Leon C. Marshall 4 (Oct. 22, 1934) (NA/NRA/CAF Entry 265, Leon C. Marshall Papers, Box 3) [hereinafter Onthank Memo].
354. Memorandum from Solomon Barkin, Labor Advisory Board, to Leon C. Marshall 7 (Oct. 1, 1934) (NA/NRA/CAF Entry 265, Leon C. Marshall Papers, Box 3) [hereinafter Barkin Memo]. It is hard to tell from the syntax here whether the $35 per week requirement applied to all or just to the professional and scientific employees (which I suspect is the case). Barkin's objection makes more sense if the exemption for foremen was not subject to the dollar minimum, since previous rulings under the PRA had placed foremen in the supervisory/executive category if their salaries were high enough. Similarly, A. Heath Onthank objected that this exemption goes further than any past policy of which I am aware. Heretofore, it has been possible to exempt from hour restrictions executives and supervisory employees who receive regularly not less than $35 per week. The present inclusion of the secretarial assistants of executives and supervisory employees and, in addition, foremen and professional and scientific employees broadens former exemptions. Onthank Memo, supra note 272, at 2. Onthank added, however, that he would not object so long as the newly excluded employees earned $35 or more per week.
355. See Draft of Codification of Labor Policy 2-3, attached to Memorandum from Leon C. Marshall to Walton H. Hamilton (Aug. 24, 1934) (NA/NRA/CAF Entry 265, Leon C. Marshall Papers, Box 3). The PRA had also used the collar-color line in setting maximum hours, but it had in fact given employers greater flexibility in hours for blue-collar than for white-collar workers.
356. See Barkin Memo, supra note 273, at 7.
357. Draft of "Open letter addressed to a number of representative groups by the National Industrial Recovery Board," 1, attached to Memorandum from Blackwell Smith to Williams (Nov. 24, 1934) (NA/NRA, Donald Richberg Subject File, Entry 3, Box 2).
358. The Dictionary was published after the enactment of the FLSA but before the promulgation of the 1940 amended upper-level exemption regulations discussed infra, notes 363-405.
359. On the vocational guidance movement, see, e.g., JACOBY, supra note 118, at 65-97.
360. See supra text accompanying notes 47-48.
361. OCCUPATIONAL DICTIONARY, supra note 267, at xxi.
362. Later editions of the Dictionary have also been controversial. For a critique of the 1965 third edition of the Dictionary, which was based on a "functional job analysis" that turns on the degree to which people work with data, people, and things, see SCOVILLE, supra note 65, at 7-8; see also COMMITTEE ON OCCUPATIONAL CLASSIFICATION & ANALYSIS, NATIONAL RESEARCH COUNCIL, WORK, JOBS, AND OCCUPATIONS: A CRITICAL REVIEW OF THE DICTIONARY OF OCCUPATIONAL TITLES 188 (Ann R. Miller et al. eds., 1980) (critiquing third edition and noting sex bias in job ratings).
363. Press Release No. 3513, Press Memo No. 10, at 1 (Mar. 1, 1934) (LC, Richberg Container 47, Press Releases 2-3/1934) (describing testimony of Francis J. German, United Textile Workers of America).
364. GORDON, supra note 122, at 201-02.
365. Paul H. Douglas & Joseph Hackman, The Fair Labor Standards Act of 1938 (pt. 1), 53 POL. SCI. Q. 491, 491 (1938);
366. accord Linder, Farm Workers and the Fair Labor Standards Act, supra note 1, at 1381.
367. See John S. Forsythe, Legislative History of the Fair Labor Standards Act, 6 LAW & CONTEMP. PROBS. 463, 464 (1939).
368. See id. at 483.
369. Fair Labor Standards Bill, Confidential Revised Draft § 2(a)(7) (April 30, 1937) (National Archives, Record Group 174, Department of Labor, Records of Secretaries, Frances Perkins [hereinafter NA/DOL/Perkins], Box 12).
370. Fair Labor Standards Bill, Confidential Revised Draft § 2(a)(7) (May 12, 1937) (NA/ DOL/Perkins, Box 12, FLS Bill, 1937) (emphasis added).
371. When Leon C. Marshall proposed conducting a comparative analysis of labor provisions in the industrial codes, his spreadsheet listed the most common exemptions. "Administrative" was not one of them. Exemption categories for hours were "executive and supervisors," "professional and technical," "all employees receiving more than stated salary," "office and clerical," "outside salesmen," "scarce, skilled or key worker," "continuous process operators," "repair and maintenance," "watchmen," "firemen," "electricians," "engineers," "cleaners and janitors," delivery, shipping and stock, child labor, auxiliary and general. My search of the records did not show completion of Marshall's study. His correspondence relating to the study is found in Office Files of Leon C. Marshall, File NA/NRA/ CAF Entry 265, Box 3, Analysis (Various), No. 71, July 18, 1934. Another notation states that "[a]ll of this is turned over to [Harry] Weiss to push thru." Letter from Leon C. Marshall to Harry Weiss et al. 2 (Aug. 30, 1934) (NA/NRA/CAF, Entry 265, Office Files of Leon C. Marshall, Box 3, Misc. Letters, No. 72).
372. Paul H. Douglas & Joseph Hackman, The Fair Labor Standards Act of 1938 (pt. 1), 53 POL. SCI. Q. 491, 491 (1938);
373. accord Linder, Farm Workers and the Fair Labor Standards Act, supra note 1, at 1381.
374. See John S. Forsythe, Legislative History of the Fair Labor Standards Act, 6 LAW & CONTEMP. PROBS. 463, 464 (1939).
375. See id. at 483.
376. Fair Labor Standards Bill, Confidential Revised Draft § 2(a)(7) (April 30, 1937) (National Archives, Record Group 174, Department of Labor, Records of Secretaries, Frances Perkins [hereinafter NA/DOL/Perkins], Box 12).
377. Fair Labor Standards Bill, Confidential Revised Draft § 2(a)(7) (May 12, 1937) (NA/ DOL/Perkins, Box 12, FLS Bill, 1937) (emphasis added).
378. When Leon C. Marshall proposed conducting a comparative analysis of labor provisions in the industrial codes, his spreadsheet listed the most common exemptions. "Administrative" was not one of them. Exemption categories for hours were "executive and supervisors," "professional and technical," "all employees receiving more than stated salary," "office and clerical," "outside salesmen," "scarce, skilled or key worker," "continuous process operators," "repair and maintenance," "watchmen," "firemen," "electricians," "engineers," "cleaners and janitors," delivery, shipping and stock, child labor, auxiliary and general. My search of the records did not show completion of Marshall's study. His correspondence relating to the study is found in Office Files of Leon C. Marshall, File NA/NRA/ CAF Entry 265, Box 3, Analysis (Various), No. 71, July 18, 1934. Another notation states that "[a]ll of this is turned over to [Harry] Weiss to push thru." Letter from Leon C. Marshall to Harry Weiss et al. 2 (Aug. 30, 1934) (NA/NRA/CAF, Entry 265, Office Files of Leon C. Marshall, Box 3, Misc. Letters, No. 72).
379. Exec. Order No. 7046 (1935) ("Proscribing Rules and Regulations . . . Under the Emergency Relief Appropriation Act of 1935"). The Executive Order is interesting for other reasons as well. The Order called for all work under the order to be on a monthly salary basis - an innovative step possibly aimed at fostering reliability of improved purchasing power - with differentials by region, size of community, and kind of work. Separate minimum wages were set for different categories of work: unskilled, intermediate work, skilled work, professional and technical work. Supervisory and administrative employees were not covered by the wages provision. The maximum hours provision set an eight-hour day and a forty-hour week, but exempted "supervisory and administrative employees." Certain types of projects permitted a longer workweek "for manual labor" but not for "clerical and other non-manual employees." This Executive Order combined a number of themes that had been debated during the NRA period: skill differentials, community-size differentials, distinctions between office and manual work. Not all of these distinctions found their way into the FLSA, although the "administrative" category did find its way in. Note that this was a program that had the relief of unemployment among technical and professional workers as one of its specific goals, which might be why their traditional mode of pay - salaried as opposed to hourly - was adopted under the Executive Order. It is not clear why "administrative and supervisory" workers were not seen as needing similar protection.
380. See Fair Labor Standards Bill, Confidential Revised Draft § 2(a)(7) (May 20, 1937) (NA/DOL/Perkins, Box 12, FLS Bill, 1937). At this point, a lower-level exclusion for agricultural workers had been introduced. The NRA codes had used lower-level exclusions as well - e.g., for "outside" workers in the cotton textile code. For more on lower level exclusions, see the many articles of Marc Linder on the subject, supra note 1.
381. Memorandum of Katherine Lenroot to Frances Perkins 1 (June 1, 1937) (NA/DOL/ Perkins Box 12) ("Notes Regarding the Black-Connery Bill").
382. See Memorandum from Mary La Dame to Frances Perkins (Nov. 8, 1937) (NA/ DOL/Perkins Box 118).
383. See PERKINS, supra note 93, at 260.
384. See 83 CONG. REC. 7181, 7449-50 (1938).
385. Letter from Frances Perkins to Senator Sheppard 1 (May 17, 1938) (NA/DOL/ Perkins, Box 10, Special File: Wage & Hour Bill, 1937-38) (quoting unnamed constituent) (internal quotation marks omitted).
386. Id. The question was forwarded by Sheppard, but asked by a constituent.
387. This strengthened resolve may have related to the fact that the economic situation of upper-level white collar workers was worsening through the Depression as they exhausted their savings.
388. The phrase is mine, parallel to "little Norris LaGuardia's."
389. Transcript of Committee to Prepare Suggested Language for State Legislation Supplementing the Federal FLSA (Sept. 12, 1938) (NA/DOL/Perkins Box 103) (testimony of Pat Murphy).
390. See supra text accompanying note 292.
391. Reports of Committees and Resolutions Adopted by Fifth National Conference on Labor Legislation, Bulletin 25-a, at 7 (Nov. 14-16, 1938) (NA/DOL/Perkins, Box 45) (summarizing proposed bill).
392. See Letter from Mary La Dame to Charles Wyzanski (Dec. 13, 1938) (NA/DOL/ Perkins Box 118).
393. Summary of Conference re: Draft of State FLS Bill 1 (Dec. 30, 1938) (NA/DOL/ Perkins Box 118). Wyzanski apparently read the "executive or professional" language in the model state statute to include "administrative" employees.
394. Wyzanski didn't seem to see the capacity of interpreting the term "administrative" to include such a worker - which is odd, since he went to the trouble of interpolating that term into the model state statute.
395. Summary of Conference re: Draft of State FLS Bill, supra note 304, at 1.
396. See id. at 2.
397. See Report of Committee on State Wage and Hour Legislation, Adopted by Fifth National Conference on Labor Legislation 7 (Nov. 14-16, 1938) (NA/DOL/Perkins, Box 45). The following year, the Sixth National Conference on Labor Legislation proposed that serious consideration be given to removing "professionals" from the exempt category, as the CIO was proposing. Report of Committee on State Wage and Hour Legislation, Adopted by Sixth National Conference on Labor Legislation 1 (Nov. 13-15, 1939) (NA/DOL/Perkins, Box 45).
398. Letter from Daniel Allen to President Roosevelt (July 19, 1938) (FDR/OF 3295, Wage & Hour Division, DOL Box 1, 1938 folder).
399. Wage Law Evasion Seen in New Deal Plan, N.Y. TIMES, Aug. 14, 1938, at III 8:8.
400. For the use of the term "processed labor" in the cotton textile hearings, see Transcript of NIRA Hearing No. 1 U-8 (June 27, 1933) (NA/NRA, Records Maintained By the Library Unit, Transcripts of Hearings 1933-35, Entry 44, Box 73). For the distinction between "direct" and "indirect" labor, with the latter category including "clerks, inspectors, tool crib men, repair operators, shipping-room employees, truckmen, drivers, firemen, [and] watchmen," see NATIONAL INDUSTRIAL CONFERENCE BOARD, SUPPLEMENTAL BONUSES FOR WAGE EARNERS, SUPERVISORS AND EXECUTIVES 53 (1927).
401. Wage Law Evasion Seen in New Deal Plan, supra note 310, at 8:8.
402. This group later filed a petition to change the upper-level exemptions, which was one of the events leading to the 1940 hearings discussed below. See Department of Labor, Press Releases No. R-712 (Apr. 2, 1940) (National Archives, Record Group 155, Wage and Hour Division [hereinafter NA/W&H]).
403. Press Releases, Transcript of the Record of the Question and Answer Period Following the Speech of Elmer F. Andrews . . . Before the Southern States Industrial Council, Birmingham, Alabama 3 (Sept. 29, 1938) (NA/DOL/W&H) [hereinafter Press Releases following Speech of Elmer F. Andrews].
404. What's What in Wage-Hour Law, BUS. WK., Oct. 15, 1938, at 17.
405. BUS. WK., Oct. 15, 1938, at 20.
406. Id. Remington had a history of capturing cultural trends. For "Miss Remington" as a cultural icon of the working woman of the period, see ZUNZ, supra note 37, at 147.
407. See supra text accompanying notes 114-18 (discussing the Hawthorne experiments).
408. Note that office employees were traditionally salaried. The message is that a good manager knows that unless he does something about it, his lower-level clericals - particularly the women among them - will act like clock-watchers despite their salaried status, suggesting the downward movement in the cultural status of routine clerical work.
409. Drafting took place under the leadership of Rufus Poole. See, e.g, Minutes of Meeting 3 (July 28, 1938) (NA/DOL/Perkins Box 103, Wage & Hour, General) ("All members were instructed to leave any suggestions upon administration with Mr. Poole."). Poole was a 1927 graduate of the University of Chicago Law School, did post-graduate work on legislation under Dr. Ernest Freund, and was in private practice and in government in the Interior Department before joining the Department of Labor as Associate Solicitor and then the Wage and Hour Division as Assistant General Counsel. See Press Releases following Speech of Elmer F. Andrews, supra note 314. He guided the FLSA through Congress, see PERKINS, supra note 93, at 261, and also drafted the model state legislation discussed in the previous section, see Memorandum from V.A. Zimmer to Frances Perkins (Sept. 20, 1938) (NA/DOL/ Perkins Box 103). Poole impressed Perkins early on, and she later urged his promotion to the Division's general counsel position. He was not promoted only because Andrews had promised the position to someone else. See Memorandum from Frances Perkins to Elmer F. Andrews (Apr. 29, 1939) (NA/DOL/Perkins Box 103, Wage & Hour Administration, Andrews); accord What's What in Wage-Hour Law, supra note 315, at 18.
410. 3 Fed. Reg. 2518 (Oct. 20, 1938).
411. 3 Fed. Reg. 2518 1938). Id.
412. See 3 Fed. Reg. 2518 1938). id.
413. 3 Fed. Reg. 2518 1938). Id.
414. 3 Fed. Reg. 2518 1938). Id.
415. 3 Fed. Reg. 2518 1938). Id.
416. See 3 Fed. Reg. 2518 1938). id.
417. 3 Fed. Reg. 2518 1938). Id.
418. Press Release, Transcript of Address by Rufus G. Poole before the Associated Industries of New York at its Annual Meeting 11 (Nov. 18, 1938) (NA/W&H Press Releases).
419. Id.
420. Address to the Illinois Manufacturers Association 2 (Nov. 25, 1938) (NA/W&H Press Releases).
421. WSU/Guild, Wage-Hour Talk Set With Andrews, GUILD REP., Oct. 15, 1938, at 1.
422. WSU/Guild, Andrews Rulings Seen Supporting Guild in Barring Professional Exemptions, GUILD REP., Nov. 1, 1938, at 1.
423. May Bar Overtime for High Pay Group, N.Y. TIMES, Dec. 14, 1938, at 4:2.
424. See May Ease Wage Act on Well-Paid Jobs, N.Y. TIMES, Dec. 23, 1938, at 4:4 (quoting Elmer F. Andrews).
425. Note that Andrews was not saying that income should be the sole determinant of coverage. Only among white-collar or salaried workers - he switched back and forth - would his proposed income test qualify employees for exemption.
426. See 2 Wage & Hour Report (BNA); 3-4 (1940).
427. The discussions are described by Elmer F. Andrews, Address to Council for Social Progress (Apr. 5, 1939) (NA/W&H, Press Releases).
428. H.R. 4363, 76th Cong. (1939) (introduced by Rep. Cox on Feb. 21, 1939); see also S. 2022, 76th Cong. § 1 (1939) (introduced by Sen. Miller on Mar. 31, 1939).
429. May Bar Overtime for High Pay Group, N.Y. TIMES, Dec. 14, 1938, at 4:4.
430. May Ease Wage Act on Well-Paid Jobs, N.Y. TIMES, Dec. 23, 1938, at 4:4.
431. Memorandum on High Salaried Employees tbl.4 (National Archives, Records Group 174, Department of Labor, Records of Assistant Secretaries, NC 58 Entry 43-44, Records of Assistant Secretary Charles McLaughlin, Box 9).
432. Letter from Elmer F. Andrews to President Roosevelt 1 (Mar. 14, 1939) (FDR/OF 3295, Wage & Hour Division, DOL, Box 1, 1939).
433. Id. He also noted that "[t]he Secretary of Labor has approved these amendments which were prepared with the advice and counsel of Mr. Benjamin Cohen." Id. For a discussion of Cohen, see WHITE, supra note 152, at 177-80, 189-90.
434. Letter from Elmer F. Andrews to Representative Mary T. Norton, Chairwoman, House Committee on Labor 2 (July 15, 1939) (FDR/OF 3295, Wage & Hour Division, DOL, Box 1, 1939 folder) (quoting Report of the Labor Committee on H.R. 5435).
435. See WSU/Guild, Andrews Bars Change of Hours Act, GUILD REP., Aug. 1, 1939, at 1.
436. See, e.g., Amendment, Seeks to Avoid Sweeping Floor Revisions, N.Y. TIMES, Mar. 16, 1939, at 7:4 (noting suggestions from Congress and the Labor Department "that 'white-collar' workers, which classification would include newspapermen and other groups paid salaries above a certain level" would be exempt).
437. WSU/Guild, Andrews Bars Change of Hours Act, GUILD REP., Aug. 1, 1939.
438. White Collar Unions on Their Way, BUS. WK., Aug. 19, 1939, at 30.
439. Id. at 31.
440. See id.
441. The bill reared its head again in 1940, when as proposed, "[i]t would exempt all employees, including manual workers, receiving a guaranteed monthly salary of $150 or more." Letter from Frances Perkins to President Roosevelt (Apr. 16, 1940) (FDR/OF 3295, Wage & Hour Division, DOL, Box 1, 1940 folder).
442. There was concern that the Barden Bill would be brought back. Another bill was introduced by Rep. Kramer which would have exempted from the maximum hours provision any employee - regardless of collar color or duties - who earned the equivalent of $200 a month and was guaranteed employment for at least 40 hours a week. See H.R. 8624, 76th Cong. (1940). Andrews's earlier $200/month proposal had pertained only to white-collar workers.
443. WAGE & HOUR DIV., U.S. DEPT. OF LAB., FIRST ANNUAL REPORT OF THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION FOR THE CALENDAR YEAR 1939, at 129 (1940).
444. Letter from Barcalo Manufacturing Co. to Frances Perkins (Jan. 9, 1940) and Frances Perkins's Response (Jan. 12, 1940) (NA/DOL/Perkins, Box 168, Wage & Hour Division, General 1940).
445. Memorandum (n.d.) (NA/DOL/Perkins, Box 168, Wage & Hour Division, General 1940).
446. See Who's an Executive?, BUS. WK., Apr. 20, 1940, at 34.
447. Press Release from U.S. Department of Labor, Wage and Hour Division, No. R-712, at 4 (Apr. 2, 1940) (NA/W&H, Press Releases).
448. United States Department of Labor, Wage and Hour Division, "Executive, Administrative, Professional . . . Outside Salesman Redefined," Report and Recommendation of the Presiding Officer at Hearings Preliminary to Redefinition, Effective Oct. 24, 19-40, at 1-2 [hereinafter Stein Report].
449. That decision was not entirely voluntary. Early in the process, the Newspaper Guild - the union that had scuttled Andrews' legislative proposal - objected to the segregation of the hearings by industry. Abraham Isserman of the Guild insisted on the right to testify at the Wholesale and Distributive Trades hearing, arguing that his union needed to be there to comment on "the question of linking up one or more of these definitions with monthly earnings of employees." As a result of Isserman's inquiry, the format of the hearings permitted non-industry organizations to file briefs, but not to submit evidence
450. See Telegram from S.T Early to President Roosevelt (Apr. 25, 1940) (FDR/OF 3295, Wage & Hour Division, DOL, Box 1, 1940 folder).
451. FDR/OF 3295, Wage & Hour Division, Box 1, 1940 folder, Apr. 25, 1940.
452. See Stein Report, supra note 359. The briefs and hearing transcripts seem no longer to exist: neither the relevant collections in the National Archives or the Department of Labor has them, nor do the majority business and labor archives I contacted.
453. See id. at 6.
454. Id. at 7.
455. See id.
456. Id. at 7-8.
457. Id. at 8.
458. See id.
459. See id. at 4. The status increase from feminization of the environment in white-collar settings was never enough to make up for the status-lowering effect of a predominance of women.
460. See id. at 9.
461. See id. at 7.
462. Id. at 3.
463. That seems a weak point, given how rarely the word "administrative" was used in wage and hour legislation, and given the presumed tendency of legislatures not to use redundant language in lists such as these. His authority was also weak. Stein relied on Saint v. Allen, 126 So. 548 (La. 1930), a case in which the term is used to say that the state highway department, an "administrative office," is in the executive branch of government, and which quotes references to the "administrative, legislative, and judicial functions" of government, as opposed to the usual "executive" functions. In In re Heafy, 285 N.Y.S. 188, 192 (1936), the issue again is branches of government: "When a judge appoints a clerk, he does an administrative or executive act, not a judicial act." These sources don't show an established practice of using the terms interchangeably in the employment setting.
464. Stein Report, supra note 359, at 4.
465. Id.
466. Id. at 4-5. Later in the report, though, the description is no more specific than "persons performing a variety of miscellaneous but important functions in business." Id. at 24.
467. Id. at 33.
468. Id. at 25.
469. See id. at 24-25. Stein says elsewhere that "[t]itles can be had cheaply and are of no determinative value." Id. at 25.
470. Subcategories of the definition exempted workers who "regularly and directly assis[t]" administrative employees, so long as their work is sufficiently discretionary, thereby covering the executive secretary who is primarily valued for "her ability to distinguish between callers at the office and to carry out other special and important duties"; there was an exemption for employees whose discretionary work is "directly related to management policies" and another for heads of "functional departments" where the function of the department is "directly related to general business operations." Id. at 27.
471. See id. at 26.
472. The only data available to him on "administrative" salaries came from the Federal Personnel Classification Board, which distinguished between "clerks" and "administrators" and provided data for federal employees in both categories. According to these data, which were already nine years out of date and failed to reflect intervening pay increases, "in Government practice the turning point between the clerk and the administrative official" was on average $2700 per year ($225 a month). Stein Report, supra note 359, at 31 & n.106. Stein feared, however, that in low-paying regions of the country, administrative employees would have far lower salaries than those paid by the federal government. See id. at 32. The alternative approach was to look at national average salaries of non-exempt white-collar occupations and set the minimum salary for "administrative" status above their level. In the interest of this kind of calculation, the Wage and Hour Division sponsored a study of clerical employee salaries. The study showed that 5% of stenographers earned over $1,800 a year ($150 a month) but only 1% earned over $2,400 a year ($200 a month). See id. at 31. Looking at bookkeepers, "one of the most routine of all the normal business operations," id. at 32, only 8% of them earned more than $200 a month, while almost 50% of accountants and auditors (groups that Stein wanted to exempt) made over $200 a month. But Stein offered no explanation why the salary minimum should be set at a level at which only 50% of the accountants and auditors in the United States would qualify for exemption. Stein's experience was that absent regional adjustments, no salary cutoff could serve as a good substitute for a meaningful definition of the category "administrative employees."
473. See id. at 34; see also, e.g., RESEARCH COMMITTEE ON SOCIAL TRENDS, supra note 63, at 301 (noting "[i]nternal changes in the professional group," including the steady growth of some of the older professions and the rapid expansion of newer ones, such as "[d]esigners, draftsmen, and inventors" and the new "profession of librarian").
474. Stein Report, supra note 359, at 34.
475. Id.
476. Id. at 33.
477. Stein Report, supra note 359, at 36. Another example was Stein's agreement to delete from the uniform definition of "professional" the requirement that the professional's work not be "subject to active direction and supervision," because he saw that some "recognized professional occupations" would not qualify as professions if the requirement remained. See id. at 36-37.
478. Id. at 37.
479. Id.
480. Id. at 41.
481. See id.
482. Id.
483. See id. at 12.
484. Id.
485. Id. at 10.
486. Id. at 11.
487. Id.
488. Id. at 12.
489. Id. at 19.
490. Id. at 20.
491. Id. at 21.
492. See id. at 21-22.
493. Id. at 22.
494. See id.
495. This is the claim the Newspaper Guild made in its criticism of the new rules: "Basing definitions on salary earnings appears to us to ignore one of the stated purposes of the FLSA, to spread employment, something which can be done . . . by limiting hours in the higher brackets as in the lower." WSU/Guild, Pasche Assails Redefinitions in Hours Law, GUILD REP., Nov. 1, 1940, at 1.
496. For a critical review of proposed legislation to increase the overtime premium, see RONALD G. EHRENBERG & PAUL L. SCHUMANN, LONGER HOURS OR MORE JOBS? AN INVESTIGATION OF AMENDING HOURS LEGISLATION TO CREATE EMPLOYMENT 133-37 (1982).
497. See, e.g., Five Big Strikes: Issues, Outcomes, NEWSDAY, Aug. 20, 1997, at A37.
498. Again, however, "best practice" is slower to disseminate in the world than in the literature. See, e.g., Paul Osterman, How Common is Workplace Transformation and Who Adopts It? Internal Labor Market Innovations, 47 INDUS. & LAB. REL. REV. 173 (1994).
499. Examples of journalistic and popular responses to white-collar downsizing in the 1990s abound. See, e.g., More and More, Joblessness Wears a Business Suit, BUS. WK., Feb. 28, 1994, at 22;
500. White Collar Wasteland, U.S. NEWS & WORLD REP., June 28, 1993, at 42.
501. There are likewise numerous claims within the business community that white-collar downsizing is necessary for economic growth, see, e.g., Edwin A. Finn, Jr., White-Collar Bloat, FORBES, Oct. 17, 1988, at 34;
502. Thane Peterson, Can Corporate America Get Out from Under its Overhead?, BUS. WK., May 18, 1992, at 102, and that the trend will be towards the erasure of "the rigid distinction between white- and blue-collar workers,"
503. see Richard Rosecrance, Can We Make White-Collar Workers More Productive?, USA TODAY: THE MAGAZINE OF THE AMERICAN SCENE, Sept. 1, 1991, at 37.
504. It might also be worth reconsidering other assumptions about the extent to which the responses of blue-collar and white-collar wages and working conditions to economic variables are similar. See, e.g., David G. Blanchflower & Andrew J. Oswald, The Determination of White-Collar Pay, 42 OXFORD ECONOMIC PAPERS 356 (1990) (examining British data).
505. An advantage of the purposive approach is that governmental definitions of social problems, once identified, can be changed. "[S]erious attention to a given definition is an outcome of significance, as it legitimates some strands of political argument, mobilizes some participants, and invites people to see public issues differently. In its multiple roles, problem definition constitutes a source of both stability and flexibility in the policy process." Janet A. Weiss, The Powers of Problem Definition: The Case of Government Paperwork, 22 POLY. SCI. 97, 118 (1989).
506. Here I allude to the proposed introduction of compensatory time under the Fair Labor Standards Act. See Working Families Flexibility Act, H.R. 1, 105th Cong. (1997).
507. An aggressive approach will, however, require a hefty budget for education and enforcement - something the Wage and Hour Division and the NRA have sorely lacked.