(A version of this paper was delivered at the Labor and Working Class History Conference in New York, June 2013)
Many labor unions are intent upon restricting the number of workers employed in their field…The effect is, of course, an increase in the wages earned by the union members. But the corollary is a drop of wage rates for those not admitted and an enhancement in the price of printed matter. The same effect is brought about by union opposition to the utilization of technological improvements and by all sorts of featherbedding practices.
The attitude of the displaced worker was well expressed by Philip Murray a few years ago: “Classical economic pronouncements about the automatic absorption of displaced workers by private industry, whether true in the long run or not, are just so much dribble to the men and women who are deprived of their accustomed way of making a livelihood…. As a famous economist once said, ‘in the long run we are all dead.’”
If technological improvements are to produce the greatest good for the greatest number, the benefits of such improvements must be broadly distributed to all of us as customers. The advantages of technological improvements can be dissipated by artificial restriction of output below normal working capacity. Featherbedding must be discouraged and must not be protected by law. Recent demands for portal-to-portal pay throughout industry really put featherbedding on a mass production basis. In this particular case, the usual demands for ‘more money for less work’ reached an all-time high of ‘more money for no work at all.’ Featherbedding partly comes from the false philosophy of ‘made work’ during the depression years and is more prevalent in the activities of craft unions than it is in the activities of vertical shop unions…. All of our labor laws should be carefully drawn so that they do not protect unions which foster this unsound featherbedding practice.
Featherbedding was once a central term in the labor lexicon. Nowadays, it is rarely heard. Undergraduates seldom recognize the word. Thus, it is appropriate to turn to featherbedding’s final resting place, the dictionary, which tells us that featherbedding means “(The action of) making comfortable by favorable, esp. economic or financial, treatment; the state of being so treated; spec. the employment of superfluous staff,” and that the fixation of this meaning occurred in the1940s. 
Reading this definition carefully, we are immediately struck by the moral—perhaps theological—content of the term “featherbedding”: without taking any undue theoretical liberties, we can observe that featherbedding here connotes both unearned comfort and existential redundancy. We have entered the domain of what classical political economy and the Founding Fathers called “usufruct”: the legal category of inheritance that allows us to not work, or not work as hard as we might. (Although not standard in the US, “infructuous” is often used by members of the English-language press in India as a synonym for both “unproductive” and “unprofitable”). Featherbedding, as a form of “usufruct”—to its enemies, a monstrous inversion, an “enjoyment” enjoyed by the lower orders, whose members should be properly preoccupied with “Adam’s curse”––seems to bridge the gap between political economy and psychoanalysis, or, more precisely, to suggest a psychoanalytic dimension to midcentury class struggle. We discover, re-reading the legal and Industrial Relations literature of the 1940s, 1950s, and 1960s, that protests against workers’ excessive “enjoyment,” filtered through the language of productivity, output restriction, and featherbedding, constituted something of a national obsession: the source of fantasies of endless growth and anxieties about imminent economic collapse. We will return to these implications in this essay’s conclusion.
Periodizing the Discourse of Featherbedding
Once the business press seized upon “featherbedding” in the early 1940s, the term quickly became a buzzword. It seems to have entered the vernacular overnight, at some point in 1941. Thurman Arnold’s 1940 book The Bottlenecks of Business, a work that devotes a lengthy chapter to output restriction by unions, does not group these practices under the heading of “featherbedding.” Within a year of the publication of The Bottlenecks of Business, however, Arnold was decrying the “grotesque and ludicrous labor practices known as ‘feather-bedding.’” In 1946, Arnold’s labor-day essay for The New Republic was dotted with references to “featherbedding.”
This linguistic change over a relatively short period of time is worth paying attention to. As Raymond Williams famously argued in Culture and Society, the “general pattern of change” in the use of keywords can be used by the historian “as a special kind of map by which it is possible to look again at those wider changes in life and thought to which the changes in language evidently refer.”
Williams’s hypothesis is certainly borne out in the case of featherbedding. Across the political spectrum, business leaders, policy elites, and liberal intellectuals began to use the term with increasing frequency as management mounted its counter-offensive against the gains of the labor movement in the first three years of war, and anti-labor Republicans prepared for their postwar resurgence.
The “restriction of output,” Arnold wrote, had become, in the changed circumstances of 1946, a “luxury” which labor could ill afford. Citing “the rules of some of the building trades” that “spread a great deal of labor over a very little work”; the demands of musicians that they be hired as stand-bys “even when there is nothing for them to do”; and the Teamsters’ rule that itinerant trucks were “required to pay for the services of local drivers even if they (were) not used when passing through certain cities,” Arnold asserted that such practices created the need “to enrich the language with the term ‘featherbedding,” as if anticipating Williams’s claims about the political significance of linguistic innovations.
Arnold’s labor-day message enumerates the practices most resented by featherbedding’s enemies. Featherbedding was particularly central to labor-management struggles in the printing industry (notably, the big-city newspaper sector of that industry), railroads, and the live music business. In each case, some combination of technological innovation, managerial imperatives for increased productivity, and changing patterns of consumption brought about new production processes that threatened to render significant swaths of the workforce obsolete. In printing, first the transition from handset type to the linotype machine in the late 1890s, and then the transition from linotype to cold type in the 1960s; on the railroads, the switch from coal to electric and diesel (not to mention the ever-increasing reliance on automobiles, trucks, planes, and pipelines); in music: the replacement of live musicians, in many different contexts, by recordings, radio broadcasts, and sound film.
The unions at the center of the featherbedding fights gained fame as particularly strike-prone and, in their own ways, exceptionally militant, particularly in the context of the five-year contract and pattern bargaining of the postwar years. All three industries were, in the words of the law, “clothed with a public interest,” and thus uniquely embedded in networks of state regulation. Strikes in transportation, newspaper printing, and live music were treated as urgent matters of national importance. Correlatively, work stoppages in transportation, printing, and music registered as quasi-treasonous. As Robin D.G. Kelley notes: “Between 1942 and 1944, when virtually every segment of organized labor committed to a no-strike pledge in support of the war effort, the AFM under Petrillo struck the record industry by banning all union members from making records.” The International Typographical Union (ITU) famously struck the seven New York City newspapers for 114 days in 1962-63, and struck again to protest the labor implications of the proposed merger of several New York newspapers in 1965. The Railroad Brotherhoods (the Brotherhood of Locomotive Engineers, the Order of Railways Conductors, the Brotherhood of Locomotive Firemen, and the Brotherhood of Railroad Trainmen) struck in 1963, earning a stern warning from President Kennedy:
This Nation stands on the brink of a nationwide rail strike that would, in very short order, create widespread economic chaos and distress… As more and more industries exhausted their stockpiles… the idling of men and machines would spread like an epidemic…
Kennedy followed these dire warnings with some comments on automation:
The rapid replacement of steam locomotives by diesel engines for 97% of all freight tonnage has confronted many firemen, who have spent much of their career in this work, with the unpleasant prospect of ‘human obsolescence.’ (The Presidential Commission) recognized… that ‘revolutionary changes even for the better carry a high price in disruption… (that) might exceed the value of the improvements.’ Yet we cannot stop progress in technology or arrest economic change in transportation or any other industry–nor would we want to…
Kennedy’s was merely the latest in a long line of testimonies to the irrepressible force of technological progress and the responsibilities of workers to bear the brunt of scientific advances. The specific practices lumped together under the banner of featherbedding date back to early twentieth century efforts by the unions to control the effects of technological innovations. The consolidation of the key unions of the Railroad Brotherhoods was achieved with the passage of the Adamson Act in 1916, usually treated as the dramatic showdown between the unions and management over the eight-hour day. The Brotherhoods did indeed win the eight-hour day in 1916, but they also established a series of provisions regarding crew size and the maximum number of cars that could be linked together (called “train-consist” rules) that would later be attacked as featherbedding. Later, with electrified and diesel trains, the railroad full crew laws would be derided as “make-work”: why, critics would ask, was a 1916 vision of railroad labor being superimposed on the drastically altered circumstances of the 1960s?
Like the railroad workers, Progressive Era musicians used the legal process to win a series of unique protections. The AFM strictly mandated the employment of idle musicians to offset the technological unemployment engendered by the broadcast of recorded music. The union also strictly regulated the work performed in the radio booth (infamously requiring an AFM “platter spinner” to work the turntable, a task expressly forbidden to the disc jockey).
Perhaps most notoriously, the ITU dealt with an early managerial scheme to thin the ranks of printers by establishing contractual guarantees that for every standardized advertising matrix used, a printer would be employed to redundantly reset it, called colloquially “setting bogus” or “dead horse.”
All of these practices survived a host of legal and legislative challenges in the late 1940s, and persisted throughout the 1950s. By the 1960s, however, the featherbedding unions were beginning to seem like relics, unable to keep pace with a streamlined era. By the 1960s, it was easier for most American to see a Lionel toy reproduction of the old steam railroads than to catch a glimpse of the real thing. Union printers were often seen by countercultural entrepreneurs as annoyances, obstacles to be overcome in efforts to publish underground newspapers or profanity-laced poetry. And perhaps most profoundly, the AFM was embarrassingly unable adapt to the age of the LP, FM radio, and rock and roll, earning the ire of young music fans as it tried to prevent stateside visits by British Invasion groups like The Beatles and The Rolling Stones.
In all three cases, the immediate challenges posed by new technologies in the post-World War II period pointed to even more lethal later-developing threats: for printers, first the photocopy machine, and then the paperless media economy of the Internet; for railroad workers, innovations in aeronautics and the eventual disappearance of the grey flannel suit commuter; and for musicians, the drastic reduction in live music venues with increasing suburbanization and shifting media consumption habits, and the rise of electronic music, home taping, and online file-sharing. And in all three cases, by the 1970s, the featherbedding unions found themselves more or less irrelevant, entering the stage of terminal obsolescence with either an uncharacteristic whimper (as in the case of the railroad workers and the musicians), or the wrong sort of bang (as in the case of the printers’ union and the apocalyptic Washington Post strike of 1975).
Politics, Charles Dudley Warner famously said, makes strange bedfellows. In the study of US labor history, it is always productive to pay attention when we encounter strange pairings in flagrante delicto—thus we turn with interest to a column from October of 1942, written by the anti-union columnist Westbrook Pegler as a sort of love letter to––of all people––Thurman Arnold.
Reading Pegler’s ode to Arnold suggests that Pegler and Arnold shared, at a rather deep level, a certain set of concerns and values.
Arnold, Pegler reported, had uncovered “a tremendous waste of manpower caused by union rules and regulations which, in some cases, require that men be paid for doing little or nothing, and, in others, insist on the continued use of antiquated and time-wasting methods.”
Here, we encounter one of the dominant themes of anti-featherbedding discourse: its obsession with output, manpower, productivity, and efficiency; its status as an embarrassing indication of workers’ atavism and failure to keep pace with modernization; and its moral outrage at the vision of a worker “doing little or nothing” or wasting time. It is important to emphasize here that such a critique emerged out of the experience of New Deal direct job creation (and the subsequent right-wing war on “boondoggling”) and then the mobilization for war. In other words, the critique of featherbedding could only crystallize in a rare moment of state-capital cohesion, during which failure to work as hard as possible could be articulated as a form of treason. Thus Pegler, throughout the column, expresses concern that the government might begin to conscript workers to man the assembly lines of heavy industry as military service called so many away from the factories: the first step, Pegler thought, on the road to fascism:
Conscription might be necessary eventually, but people won’t submit with a will as long as they know that a lot of men are just making motions at mock jobs, tearing down and doing over work that has been done already or doing by ancient, slow methods tasks that could be sped up amazingly, and without undue pressure on the workers, by modern means. 
“Nobody can say that these practices cause a waste of 20 million of the 200 million man days a year,” Pegler continued, “because the waste is just incalculable, and it would be a waste of brain power to try to make an estimate, but it certainly is a big waste, not a trivial one.” Palpably protesting too much, what Pegler reveals here is a crucial feature of anti-featherbedding polemic: while featherbedding certainly seemed like it would logically correlate to calculable economic losses, business advocates had a difficult time producing empirical proof of its negative effects.
In fact, Pegler’s fist shaking obscured, why symptomatically highlighting, a more ambiguous economic reality. In a semi-planned economy, featherbedding is simply a derogatory name for the more or less universal practice of moderating effort to reward by means of collective power. Furthermore, as opposed to the unique circumstances of the Depression and the exigencies of wartime, under “normal” competitive capitalist conditions factories do not run on the principle of maximum output: to stay profitable, in fact, factories needed above all to avoid the trap of overproduction, to anticipate consumer demand and the production schedules of competitors. Thus, it might fairly be said that the common-sense economic critique of featherbedding, as a continuation of a long-running managerial war on soldiering, shirking, ca’canny, goldbricking, and “make-work” was a moral crusade, the latest iteration of the more punitive version of Max Weber’s famous Protestant work ethic.
The convergence of strange bedfellows like Pegler and Arnold in this crusade was not a momentary fluke. Throughout the 1950s, labor liberals and anti-union conservatives collaborated on a common anti-featherbedding polemic. The fruits of such collaboration can be seen in the showdown over the railroad strikes of the early 1960s considered above. Kennedy’s warnings found an unexpected echo in the plaints of Barry Goldwater. In a column entitled “The Railroad Featherbedding Issue Must Be Met Head On, Not Skirted,” Goldwater went after the Kennedy administration for failing to move quickly enough on featherbedding. At a deeper level, however, Goldwater and Kennedy shared an identical vision of featherbedding’s causes, costs, and catastrophic consequences. They agreed that featherbedding’s days were numbered and that the only question left to be settled was that of who would bear the brunt of obsolescence. Such convergences suggest that if it remains fashionable to smirk at Daniel Bell’s fatal lack of perspicuity in entitling a 1960 book The End of Ideology––on the eve of a decade of roiling ideological conflict––we should not be so quick to dismiss Bell’s diagnosis.
Conclusion: Featherbedding on the Couch
The End of Ideology was no Pollyanna-ish paean to the perfection of the postwar capitalist system: it is a text suffused with negativity, ambivalence, and anxiety. It’s subtitle, after all, underlines the theme of political “exhaustion.” What worried Bell most were the implications of the postwar era’s cult of productivity. Under such circumstances, the analysis of labor politics required an interpolation of Freud’s most pessimistic text, Civilization and Its Discontents—famously transformed into Bell’s “Work and Its Discontents,” the title of his chapter on labor’s endemic motivation and legitimation crises.
Exhaustion was not a new theme in capitalism, of course. As Anson Rabinbach argues in The Human Motor, a common cult of “productivism” undergirded nineteenth-century German science, medicine, and managerial discourse. Extrapolating from the metaphor of the motor, “it followed that society might conserve, deploy, and expand the energies of the laboring body,” harmonizing “the movements of the body with those of the industrial machine” and perhaps even overcoming “the stubborn resistance to perpetual work that distinguished the human body from a machine.” With the conquest of fatigue––“the endemic disorder of industrial society”––“the last obstacle to progress would be eliminated.” The language of labor power, Rabinbach writes, “was more than a new way of representing work: it was a totalizing framework that subordinated all social activity to production, raising the human project of labor to a universal attribute of nature.”
Rabinbach’s profound insights into nineteenth century German knowledge production apply surprisingly seamlessly to the case of post-World War II American political economy, and more specifically, to the question of featherbedding. What Rabinbach’s work suggests is that we who study the history of capitalism in the US have not attended sufficiently to the pathological tendencies of productivism, and in particular to entropic anxieties about productive capacity, figured in nationalist terms—anxieties extraordinarily generative of anti-labor discourse and uniquely triggering of a kind of generalized existential crisis, not only in beat coffeehouses, but also on the shop floor. As the history of featherbedding shows, conventional wisdom rapidly settled upon a vision of workers as coddled, over-indulged, idle, well-rested, infructuous :in short, a proletariat illegitimately reclaiming “surplus enjoyment” from capital in the way that their counterparts in the 1870s and 1880s were seen as illegitimately seizing too large a share of corporate profits and thus having tricked industrialists into becoming state functionaries in a quasi-socialist economy.
What was left mostly unsaid was the terrifying implication of anti-featherbedding discourse: if featherbedding was to be overcome, workers would have to accept that it was their patriotic duty to become machines, to fully materialize as “manpower” during their hours on the job. Underlying this duty was the universalized guilt that distinguishes, according to Walter Benjamin, capitalism as a religion. What this repetitive, guilt-induced, endless drudgery, in service of an unassailable national allegiance calls to mind, above all, is Sigmund Freud’s proposal of a “death drive” or Todestrieb (usually shortened to “drive” or Trieb). The notion of “drive” is among the most difficult in the psychoanalytic lexicon. Labor historians, however, might find the notion less recondite than our peers in other sectors of the humanities and social sciences. For “drive” is a term familiar from US labor history. Industrial Relations experts like Sumner Slichter (also a key figure in the fight against featherbedding) began in the late nineteen teens to use the term “drive system” to describe the early twentieth century-era American productivity regime, a regime in which, “as a result of mechanization and reduced dependence on craft labor, supervision increasingly came under the control of foremen and superintendents, whose function was to drive employees to work ever faster.”
“Drive,” in Freudian terms, names something like Slichter’s “drive system” without a driver, like a factory without a foreman, or a railroad without an engineer, careening around a track’s circuit ad infinitum. Drive assumes the form of a “repetition compulsion,” the motivating force that takes over once we find ourselves “beyond the pleasure principle,” beyond the Utilitarians’ hedonic calculus (what Freud calls “the economic point of view”). We might note, parenthetically, that the central image of modern “happiness studies” is the “hedonic treadmill.” As with all psychic phenomena, the shift from desire to drive appears in the register of culture, also: and it is here, I think, that we should situate the anti-featherbedding project.
Consider, for example, the degree to which Rabinbach’s theorization of productivism and the theme of “death drive” resonate with a generic work of anti-featherbedding polemic, Stanford industrial relations expert Alexander Heron’s Why Men Work (1947). In the introduction, Heron warns of the potential heat death of capitalism: If management should “fail to induce other workers, other than ourselves, to work willingly, steadily, and effectively in producing the goods and services we want to buy” we face inflation, the illness of our system of exchanging our work for our wants,” and deflation, “the collapse of the sick system.” The spirit of productivist pessimism permeates the text: “If management cannot induce almost all of us to work effectively, our American way of life is a failure.” Heron insists that he is responding to the despair of America’s managers: “we hear a million Americans, charged with duties of management, asking desperately why men do not work.” The mood was one of “desperate worry”; “the scientific attitude replaced by exasperation…” “Why do men not work?”
Heron, it turns out, agrees with Freud: “we are likely to assume that the desires for both basic and cultural necessities are the spurs which make us work.” On the other side of desire, however, lurks drive: “we are awakening to the unpleasant discovery that, as a nation of workers, we do not follow any such simple logic in our group activities…We do not know today the fundamental reasons why men work or why men do not work. The old answers do not fit the question today.”
It would be easy to dismiss Heron as a paranoid crank. But we would be foolish to dismiss the degree to which his words accurately took the temperature of postwar class relations and captured some of the internal contradictions of capitalist triumphalism. Because we need to know much more about the existential crisis that such contradictions produced—the collective loss of a sense of what or for whom all of this productive effort was for––if we are to properly understand the decline of the New Deal order. Judith Stein urges historians to avoid Whiggish declension narratives that render “Keynesian liberalism and the Democratic Party victims of right wing ideological and institutional assault,” assuming that “the ideology and the party were up to the task of confronting the nation’s challenges and that the rise of conservatism had nothing to do with their failures.” With Stein’s observations in mind, I think we can broaden our understanding of the causes of the New Deal’s terminal decline by looking at the significance of the ideological alliance that brought together the war on featherbedding’s strange bedfellows.
 Ludwig Von Mises, Human Action: A Treatise on Economics, 1949.
 Vern Countryman, “The Organized Musicians, II.” The University of Chicago Law Review, Vol. 16, No. 2 (Winter, 1949), Note 122, 239.
 Statement of C. E. Wilson, president of General Motors, presented to the Senate Committee on Labor and Public Welfare, February 5, 1947 (Section 8, ‘Featherbedding.’) Wilson’s comments were also circulated as a pamphlet entitled Legislation for Labor Peace and distributed by the General Motors Corporation. Cited in Thomas Kirby, “Featherbedding,” American Speech, Vol. 22, No. 4 (Dec., 1947), 303-04.
 “Featherbedding,” Oxford English Dictionary. A 1928 citation indicates that the term was also used to described flowery ornamentation in music. The first citation indicating the trade union-specific meaning of featherbedding is located in a 1943 Reader’s Digest article, with numerous shadings popping up throughout the 1940s and 1950s. Intriguingly, and not without significance for our purposes, the OED suggests that “feather-bedder,” by the early 1950s, had emerged as a synonym for the sybarite or good-time Charlie: “one devoted to physical or intellectual comfort”; “feather-bedder” was used that way, at least in Mary McCarthy’s 1952 novel Groves of Academe.
 See Bruce Fink, The Lacanian Subject, 96. “Surplus value corresponds in quantity to what, in capitalism, is called ‘interest’ or ‘profit’: it is that which the capitalist skims off the top for him or herself, instead of paying it to the employees… It is, loosely speaking, the fruit of the employees’ labor. When, in legal documents written in American English, someone is said to have the right to the fruit or ‘usufruct’ of a particular piece of property or sum of money held in trust, it means that that person has a right to the profit generated by it, though not necessarily to the property of money itself. On other words, it is a right, not of ownership, but rather of ‘enjoyment.’ In everyday French, you could say that that person has la jouissance of said property or money. In the more precise terms of French finance, that would mean that he or she enjoys, not the land, buildings, or capital itself… but merely its excess fruits, its product above and beyond that required to reimburse its upkeep… The employee never enjoys that surplus product, he or she ‘loses’ it. The work process produces him or her as an ‘alienated’ subject. The capitalist, as Other, enjoys that excess product….and thus the subject finds himself in the unenviable situation of working for the Other’s enjoyment.”
 Thurman Arnold, The Bottlenecks of Business, (New York: Reynal & Hitchcock, 1940). Arnold was part of the Western flank of the New Deal brain trust, a founder of legal realism at Yale close with lawyers William O. Douglas and Abe Fortas; and the author of The Folklore of Capitalism. Arnold’s critique of labor, despite his New Deal bona fides, stemmed from his iconoclasm and his devotion to “the old-fashioned economic order.” Arnold believed that “getting away from the fundamentals” was the cause of many of the modern era’s ills. When he became Assistant Attorney General in the late 1930s and took over the Justice Department’s Antitrust Division, within five years he undertook 215 investigations and launched nearly half the antitrust legislation since the Sherman law’s inception. Arnold’s antitrust activity, Jordan A. Schwarz writes, “amounted to another demand for a more liberal capitalism.” Jonathan A. Schwarz, The New Dealers: Power Politics in the Age of Roosevelt (New York: Knopf, 1993). Jason Scott Smith reveals that Richard Hofstadter regarded Arnold as epitomizing “the essence of the New Deal,” because, in Hofstadter’s words, Arnold’s literary works contained “ a sharp and sustained attack upon ideologies, rational principles, and moralism in politics… in short, the theoretical equivalent of FDR’s opportunistic virtuosity in practical politics—a theory that attacks theories.” Jason Scott Smith, Building New Deal Liberalism: The Political Economy of Public Works (New York: Cambridge University Press, 2006); Hofstadter quote is from Age of Reform, 319. Spencer Weber Waller notes that when Arnold was appointment to this official New Deal post as Assistant Attorney General (despite having been a critic of much of the Sherman Act and much of the New Deal machinery in his popular books The Symbols of Government and The Folklore of Capitalism) his critics described him as “a foe capitalism” a “left-wing New Dealer” and a “capitalist critic.” Spencer Weber Waller, in Thurman Arnold: A Biography, (New York: New York University Press, 2005).
 “Arnold Denounces Union ‘Feather Bed’ Rule; Says Job Twice Done Costs Billion a Year,” The New York Times, Nov. 29. 1941, 9.
 Raymond Williams, Culture and Society, 1780-1950 (New York: Columbia University Press, 1958), xiii.
 On this postwar managerial resurgence, see the classic study by Howell John Harris, The Right to Manage: Industrial Relations Policies of American Business in the 1940s (Madison: University of Wisconsin Press, 1982).
 Thurman Arnold and Walton Hamilton, “Thoughts on Labor Day,” The New Republic, September 1946, reprinted in American Thought 1947 (London: Gresham Press, 1947). In a striking break with general usage, Arnold insisted that featherbedding was not only restricted to labor unions: “If there is stand-by labor, we also have an abundance of functionless capital.” Railroads, public utilities, blue chip corporations: “An inventory of all the sums of capital which currently bear interest, over the investments actually necessary to get our industrial work done, would reveal an alarming amount of featherbedding.”
 The question of industries “clothed with a public interest” became increasingly pressing in regard to transportation and communications industries in the context of World War II and the early Cold War. See, for example, The Commission on Freedom of the Press, A Free and Responsible Press (Chicago: University of Chicago Press, 1947), especially Section XI. “The Work of the Press as Clothed with a Public Interest.” The locus classicus of “clothed with a public interest” jurisprudence is the famous 1877 case Munn v. Illinois. See James Ely, The Guardian of Every Other Right: A Constitutional History of Property Rights (New York: Oxford University Press, 1992).
 Robin D.G. Kelley, “Without a Song: New York Musicians Strike Out against Technology,” in Howard Zinn, Dana Frank, and Robin D.G. Kelley, Three Strikes: Miners, Musicians, Salesgirls, and the Fighting Spirits of Labor’s Last Century (Boston: Beacon Press, 2001), 153-54.
 John F. Kennedy: ”Special Message to the Congress on the Railroad Rules Dispute.,” July 22, 1963. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=9354.
 J.A. Lipowski, “Featherbedding on the Railroads: By Law and Agreement.” http://www.law.du.edu/documents/transportation-law-journal/past-issues/v08/featherbedding.pdf Last accessed online May 1, 2013.
 Vern Countryman, “The Organized Musicians: I,” and “The Organized Musicians: II.”
 Andrew Zimbalist, “Technology and the Labor Process in the Printing Industry” in Andrew Zimbalist, ed. Case
Studies on the Labor Process. (New York: Monthly Review Press, 1979).
 See John F. Stover, American Railroads (Chicago: University of Chicago Press, 1997).
 Michael Roberts, “You Say You Want a (Counter) Revolution? Attempts by the Musicians’ Union to Jam Up Rock and Roll,” Labor 4:4 Winter 2007.
 Westbrook Pegler, “A Great Waste of Manpower,” The Desert News, Salt Lake City, UT, October 22, 1942, 4. David Witwer provides a valuable biographical sketch of Pegler in his Shadow of the Racketeer: Scandal in Organized Labor (Urbana: University of Illinois Press, 2009), 15-35. Born in 1894 in a working-class family, Pegler, Witwer writes, “was a tough-talking, conservative commentator who depicted himself as the champion of the common citizen against the elite, liberal establishment,” and attempted to present the point of view of the common man “whose freedom was threatened by a new liberal establishment that had ensconced itself in the federal government.” Pegler was a pioneer in the field of the syndicated column, and by the late 1930s he began to use his Scripps-Howard-syndicated “Fair Enough!” to rail against union corruption. This was a somewhat surprising turn, as Pegler had been a supporter of the New Deal and twice voted for Roosevelt, his anti-union animus was stoked by frustrations over the formation of the American Newspaper Guild under the leadership of charismatic left journalist Heywood Broun.
 See Nelson Lichtenstein Labor’s War at Home: The CIO in World War II (New York: Cambridge University Press, 1982) on the Reuther Plan of 1940-41 to federalize production under the auspices of an Aviation Production Board, on the establishment of the War Manpower Board, and on legislative efforts to model the British Ministry of Supply, 87-94.
 See Paul A. Weinstein, Featherbedding and Technological Change (Boston: Heath, 1965) and “Featherbedding and Taft-Hartley,” Columbia Law Review, v. 28, no, 8 (Dec. 1952), 1020-1033.
 See Max Weber, The Protestant Ethic and the Spirit of Capitalism (New York: Scribner, 1958). R.H. Tawney, Religion and the Rise of Capitalism (New Brunswick, NJ: Transaction, 1998); Daniel Rodgers, The Work Ethic in Industrial America, 1850-1920 (Chicago: University of Chicago Press, 1978); Kathi Weeks, The Problem with Work (Durham: Duke University Press, 2011).
 See Barry Goldwater, “The Railroad Featherbedding Issue Must Be Met Head On, Not Skirted,” Los Angeles Times, Aug. 6, 1963, A5.
 As Howard Brick writes: “’the ‘end of ideology’ mood was neither unambiguous nor wholly geared by cold war purposes to uncritical celebration of ‘the West.’ It was not self-evidently procapitalist. The writer who came to be most identified with the phrase, Daniel Bell, still showed signs of residual anticapitalist animus through the 1950s.” In Transforming Capitalism: Visions of a New Society in Modern American Thought (Ithaca: Cornell University Press, 2006), 162.
 Ibid., 4.
 See Martin Sklar, The Corporate Reconstruction of American Capitalism (Cambridge: Cambridge University Press, 1988).
 Walter Benjamin, “Capitalism as Religion,” in Selected Writings, Volume One: 1913-1926, translated by Rodney Livingstone (Cambridge: Belknap, 2004).
 See for example, the editor’s note in David M. Gordon, “From the Drive System to the Capital-Labor Accord: Econometric Tests for the Transition Between Productivity Regimes.” Industrial Relations, Vol. 36. No 2, April 1997, 126.
 Sigmund Freud, Todd Dufresne, Gregory C. Richter, Beyond the Pleasure Principle (Peterborough, Ont: Broadview Editions, 2011).
 Alexander R. Heron, Why Men Work (Stanford: Stanford University Press, 1947).
 Ibid, 7.
 Judith Stein, Pivotal Decade: How the United States Traded Factories for Finance in the Seventies (New Haven: Yale University Press, 2010), x.
“I have read that there is an especially high incidence of stomach ulcers among taxi drivers–an occupational illness that would not seem to be accounted for merely by poor and irregular meals, since these are equally the lot of workers at other kinds of jobs. Do we not see, rather, a bodily response to the intensely arhythmic quality of the work itself, the irritation in the continual jagginess of traffic, all puzzle and no pace, and only the timing of the cylinders performing with regularity, as if all the ritual of the occupational act had been drained off, into the routine of the motor’s explosions and revolutions?” The Philosophy of Literary Form, 11.
Some notes on Peter Sloerdijk Translated from the German by Daniela Fabricus “Cell Block, Egospheres, Self-Container” in Log, Summer/Fall 2007. Seems to me like the best thing from his peculiar project, and the article isn’t online, as far as I know, so if it’s useful to someone, here are my notes:
Epigraph: “The hour is coming, indeed it has come, when you will be scattered, every man to his own…” John, 16:32
“Those who study the history of modern architecture in relation to the forms of life found in a mediatized society will immediately realize that the two most successful architectural innovations of the 20th century—the apartment and the sports stadium—are directly related to the two most prevalent sociopsychological tendencies of this epoch: the setting free of solitary individuals with the help of individualized home and media technologies, and the aggregation of the masses, unified in their excitement, with the help of staged events held in ‘fascinogenic’ mass structures.”
“The modern apartment… is the material realization of a tendency toward cell-formation.”
“As to the meaning of these individualistic aspirations, we will content ourselves for the moment with an observation that Gabriel Tarde already made in the 1880s: ‘Today’s civilized person is really aspiring to the possibility of dispensing with human support'”(89).
Counterpart to the Soviet communal apartment: the Western equivalent arranges itself for the liberated individual to devote himself “to the cultivation of his relationship to himself” (90)
We will define the apartment as an atomic or elementary ‘egospheric’ form—as a cellular world-bubble, the massive repetition of which generate individualistic foams.”
There is no moral judgment tied to this conclusion; it contains no concessions to current catholic and neoconservative criticism that, in its discussion of the contemporary trend toward ‘singles culture,’ offers little more than a stereotypically Augustinian scolding of egoism and indifference” (90).
To get closer to understanding the phenomenon of the apartment, one must take note of its close alliance with the principle of seriality…
Serialism—represents the transfer point between elementarism and social utopianism
“In serialism—which regulates the relationship between part and whole through precise standardization, so that decentralized fabrication and centralized installation become possible—lies the key to the relationship between cell and cellular compound” (90)
Apartments are Heideggerian: “Existence in a one-room apartment is nothing other than the being-in-the-world of one single case” (91)
When British physician Robert Hooke introduced, in his 1665 work Micrographia, the biological concept of the cell to describe the dense arrangement of discrete cavities in a piece of cork (discovered under a microscope), he was inspired by the analogy of rows of monks’ cells in a monastery” (92)
“With the push of modern architecture toward the idea of the reduced living unit as an ideal type, the concept of the cell returns to its starting point after its productive exile in microbiology—but this time, loaded with the surplus value of its analytical precision and constructive flexibility.”
“The emancipated living cell formulates a concept of the minimal architecture and sanitary conditions necessary for autonomy, which have to exist for the possibility of being able to live on one’s own to be formally fulfilled.”
The single bubble in a “living-foam” forms a container for the occupant
The “one-room apartment is usually found in buildings arranged as aggregations of typified living units according to a general plan” (92).
Le Corbusier: living space had to provide “psychic ventilation”
Marx and Eighteenth Brumaire: “What Marx particularly emphasizes is this “enormous mass whose members live in similar conditions but without entering into manifold relations with each other”—in their splintering, unable to articulate a shared interest
The peasant: Thus the great mass of the French nation is formed by the simple addition of homologous magnitudes, much as potatoes in a sack form a sack of potatoes” (93-94).
What is required for sociality, and for class consciousness, is windows
Being windowless represents a deficiency of communication, enlightenment, and solidarity. Seen from this point of view, the parcel farmers form a para-proletariat; like the industrial proletariat after them, they see themselves as faced with the task of crossing over from an isolated and depoliticized existence to one that is organized and politically virulent.
The transformation of the “urban cave” into a communicatively ventilated workers’ colony, or even one communal apartment—the creation of “foams of solidarity” (95).
In the late 19th century—the entanglement of community and immunity
The transition to contemporary monadic living: marks “ a profound turning point” in “the ways and means of being-together of persons with like and with others”
Thus, the emergence of the problem of the “other” in moral philosophy
A new social plane: individuals and multitude of virtual inner others becomes epidemic—only then can “the fissure between the narcissistic other of self-reflexion and the transcendent other of a real encounter… become obvious in a general and public way” (96).
“One can speak of the presence of an egosphere when its inhabitant has developed elaborate habits of self-pairing, and regularly moves within a constant process of differentiation from himself… Such a form of life would be misunderstood if one were to fixate only on the attribute of living alone in the sense of being partnerless, as incomplete as a human being.”
“The nonsymbiosis with others that is practiced by the single occupant in the apartment turns out, after closer investigation, to be an autosymbiosis. Here, the form of the couple is fulfilled in the individual, who, in constant differentiation from himself, perpetually relates to himself as the inner other, or as a multitude of sub-egos. ‘Being together’ is transferred, in this case, to the ongoing changing of the conditions in which the individual experiences himself.”
This new solipsism “could not become truly suggestive until today’s media revolution had run its course. Ego-technological media in particular contributed to this by inscribing the individual with new routines and methods of returning to the self (97).
Homo alphabeticus: self-objectification in writing; the diary is one such ego-technological form; soul-searching is another
Faciality, interfaciality (facebook): “In the everyday routine of the modern apartment resident… the glance in the mirror has become a regular practice that serves his ongoing self-adjustment” (98).
“Individuals in their individualistic regime become punctiform subjects who fall under the sway of the mirror, that is, under its reflecting self-completing function. They organize their lives to an increasing extent under the illusion that they could lay both parts in the game of the bipolar relationship sphere, without the need for a real other” (98).
Elias Canetti—predicted a “society in which every person is depicted, and prays before his own image” (99)
Individualism is a cult of digestion that celebrates the passage of foods, experiences, and information through the subject.
Simultaneously a cave and a stage
The “self-care cycle”
Great term: “cosmetic autopraxis”: “Through cosmetics, one’s own facial countenance—the appearance—can near the level of the artwork”
Outfits become a “design problem”; “the clothing choices a self-project”
In a developed society—the individual qualifies as an author who claims authorship of his own image (100).
Much like Hegel and his notion of reading the newspaper as a kind of silent prayer; so the breaking of the night’s silence with the morning’s noise: “ a welcoming of other’s voices into an inner mono- and polylogue”
Modern society vibrates with millions of cells in sonar foams
“Considering that a creature of the homo sapiens type becomes that which it hears, the transition to an individual having the option to self-tune presents an anthropological juncture”
involuntary inner hearing (superego) dissolves in the trend toward the choice of one’s auditory environment (the figure of the Neirers mom with the headphones in all the time)—(NB: this is what is new about post-narcissism?—a narcissism without superego?) (102).
“Premodernism was convinced by the evidence that the most interesting messages are those that come from a strong sender—namely, from God. The bearers of the messages were saints, priests, and prophets. Modernity, by contrast, depends on long-distance senders of messengers like ‘geniuses’ and stock market analysts. Maybe this makes up the strongest characteristic of existence in metaphysically demanding civilizations: intelligence loosens itself from the primacy of local conversations and takes part in the rerouting of the flow of meaning from living near to living far. This is why ‘being’… now means swimming in signs that come from afar—signs that are validated by their strong senders. Under this effect ancient advanced civilizations were able to blossom as literary cultures… I am reachable for a distant life that is sending messages, and distant and past lives remain readable through us” (104).
“(Let us take note of how very much mass culture is based on the premise that most individuals have no reason to interest themselves in themselves, which is why they are well-advised to stick to the life of the stars. Definition of a star: a) and interesting magnification of the uninterestingess of everybody else; b) and agent of distraction from the admiration of the self.)” (105).
There is no question that the mainstream thinker most central to the desire/death drive dialectic in US political economy in the twentieth century is Joseph Schumpeter.
First, some passages from the 1946 Preface to Capitalism, Socialism, and Democracy:
This, finally, leads to the charge of “defeatism.” I deny entirely that this term is applicable to a piece of analysis. Defeatism denotes a certain psychic state that has meaning only in reference to action. Facts in themselves and inferences from them can never be defeatist or the opposite whatever that might be. The report that a given ship is sinking is not defeatist. Only the spirit in which this report is received can be defeatist: The crew can sit down and drink. But it can also rush to the pumps. If the men merely deny the report though it be carefully substantiated, then they are escapists. Moreover, even if my statements of tendencies amounted more definitely to prediction than they were intended to do, they would still not carry defeatist suggestions. What normal man will refuse to defend his life merely because he is quite convinced that sooner or later he will have to die anyhow?
Frank presentation of ominous facts was never more necessary than it is today because we seem to have developed escapism into a system of thought. This is my motive as it is my apology for writing the new chapter. The facts and inferences there presented are certainly not pleasant or comfortable. But they are not defeatist. Defeatist is he who, while giving lip service to Christianity and all the other values of our civilization, yet refuses to rise in their defense— no matter whether he accepts their defeat as a foregone conclusion or deludes himself with futile hopes against hope. For this is one of those situations in which optimism is nothing but a form of defection.
Schumpeter, Joseph. Capitalism, Socialism, and Democracy. 1946 Preface (Taconic, Connecticut).
Here’s some pretty typically pessimistic writing. So what, you ask. It’s Schumpeter. He’s like the Morrissey of economics. The point–I think–is to link JS’s presentation of capitalism’s entropic tendencies to the study of anti-labor discourse, which has not been sufficiently explored:
Believing that most of the arguments offered— both on Marxian and on more popular lines— are wrong, I felt it my duty to take, and to inflict upon the reader, considerable trouble in order to lead up effectively to my paradoxical conclusion: capitalism is being killed by its achievements.
Can capitalism survive? No. I do not think it can. But this opinion of mine, like that of every other economist who has pronounced upon the subject, is in itself completely uninteresting…
One more point before we start. The thesis I shall endeavor to establish is that the actual and prospective performance of the capitalist system is such as to negative the idea of its breaking down under the weight of economic failure, but that its very success undermines the social institutions which protect it, and “inevitably” creates conditions in which it will not be able to live and which strongly point to socialism as the heir apparent. My final conclusion therefore does not differ, however much my argument may, from that of most socialist writers and in particular from that of all Marxists.
But in order to accept it one does not need to be a socialist. Prognosis does not imply anything about the desirability of the course of events that one predicts. If a doctor predicts that his patient will die presently, this does not mean that he desires it. One may hate socialism or at least look upon it with cool criticism, and yet foresee its advent. Many conservatives did and do. Nor need one accept this conclusion in order to qualify as a socialist. One may love socialism and ardently believe in its economic, cultural and ethical superiority but nevertheless its very success undermines the social institutions which protect it, and “inevitably” creates conditions in which it will not be able to live and which strongly point to socialism as the heir apparent….
Prognosis does not imply anything about the desirability of the course of events that one predicts. If a doctor predicts that his patient will die presently, this does not mean that he desires it. One may hate socialism or at least look upon it with cool criticism, and yet foresee its advent. Many conservatives did and do…
THE RATE OF INCREASE OF TOTAL OUTPUT The atmosphere of hostility to capitalism which we shall have to explain presently makes it much more difficult than it otherwise would be to form a rational opinion about its economic and cultural performance. The public mind has by now so thoroughly grown out of humor with it as to make condemnation of capitalism and all its works a foregone conclusion— almost a requirement of the etiquette of discussion. Whatever his political preference, every writer or speaker hastens to conform to this code and to emphasize his critical attitude, his freedom from “complacency,” his belief in the inadequacies of capitalist achievement, his aversion to capitalist and his sympathy with anti-capitalist interests.
A first test of economic performance is total output, the total of all the commodities and services produced in a unit of time— a year or a quarter of a year or a month. Economists try to measure variations in this quantity by means of indices derived from a number of series representing the output of individual commodities. “Strict logic is a stern master, and if one respected it, one would never construct or use any production index,” 2 for not only the material and the technique of constructing such an index, but the very concept of a total output of different commodities produced in ever-changing proportions, is a highly doubtful matter. 3 Nevertheless, I believe that this device is sufficiently reliable to give us a general idea. [A. F. Burns, Production Trends in the United States Since 1870, p. 262.]
For the United States, individual series good and numerous enough to warrant construction of such an index of output are available since the Civil War. Choosing what is known as the Day-Persons index of total production4 we find that, from 1870 to 1930, the average annual rate of growth was 3.7 per cent and, in the division of manufactures alone, 4.3 per cent. Let us concentrate on the former figure and try to visualize what it means. In order to do this we must first apply a correction: since the durable equipment of industry was always increasing in relative importance, output available for consumption cannot have increased at the same rate as total production. We must allow for that. But I believe that an allowance of 1.7 per cent is ample; 5 thus we arrive at a rate of increase in “available output” of 2 per cent (compound interest) per year.
Now suppose that the capitalist engine keeps on producing at that rate of increase for another half century starting from 1928. To this assumption there are various objections which will have to be noticed later on, but it cannot be objected to on the ground that in the decade from 1929 to 1939 capitalism had already failed to live up to that standard. For the depression that ran its course from the last quarter of 1929 to the third quarter of 1932 does not prove that a secular break has occurred in the propelling mechanism of capitalist production because depressions of such severity have repeatedly occurred— roughly once in fifty-five years— and because the effects of one of them— the one from 1873 to 1877— are taken account of in the annual average of 2 per cent. The subnormal recovery to 1935, the subnormal prosperity to 1937 and the slump after that are easily accounted for by the difficulties incident to the adaptation to a new fiscal policy, new labor legislation and a general change in the attitude of government to private enterprise all of which can, in a sense to be defined later, be distinguished from the working of the productive apparatus as such. Since misunderstandings at this point would be especially undesirable, I wish to emphasize that the last sentence does not in itself imply either an adverse criticism of the New Deal policies or the proposition— which I do believe to be true but which I do not need just now— that policies of that type are in the long run incompatible with the effective working of the system of private enterprise.
All I now mean to imply is that so extensive and rapid a change of the social scene naturally affects productive performance for a time, and so much the most ardent New Dealer must and also can admit. I for one do not see how it would otherwise be possible to account for the fact that this country which had the best chance of recovering quickly was precisely the one to experience the most unsatisfactory recovery. The only somewhat similar case, that of France, supports the same inference. It follows that the course of events during the decade from 1929 to 1939 does not per se constitute a valid reason for refusing to listen to the argument in hand which, moreover, may in any case serve to illustrate the meaning of past performance. Well, if from 1928 on available production under the conditions of the capitalist order continued to develop as it did before, i.e., at a long-run average rate of increase of 2 per cent per year, it would after fifty years, in 1978, reach an amount of roughly 2.7 (2.6916) times the 1928 figure. In order to translate this into terms of average real income per head of population, we first observe that our rate of increase in total output may be roughly equated to the rate of increase in the sum total of private money incomes available for consumption, 6 corrected for changes in the purchasing power of the consumers’ dollars.
Second, we must form an idea about the increase in population we are to expect; we will choose Mr. Sloane’s estimate, which gives 160 millions for 1978. Average income per head during those fifty years would therefore increase to a little more than double its 1928 amount, which was about $ 650, or to about $ 1300 of 1928 purchasing power. 7 [6 “Consumption” includes the acquisition of durable consumers’ goods such as motor cars, refrigerators and homes. We do not distinguish between transient consumers’ goods and what is sometimes referred to as “consumers’ capital.” [7 That is to say, average real income per head would increase at a compound interest rate of 13/ 8 per cent. It so happens that in England, during the century preceding the First World War, real income per head of population increased at almost exactly that rate…
No great confidence can be placed in this coincidence. But I think it serves to show that our little calculation is not wildly absurd. In Number 241 of the National Industrial Conference Board Studies, Table I, pp. 6 and 7, we find that “per capita realized national income” adjusted by the Federal Reserve Bank of New York and the National Industrial Conference Board cost of living index, was in 1929 a little over four times the 1829 figure— a similar result, though open to still more serious doubts as to reliability.] Perhaps some readers feel that a proviso should be added about the distribution of the total monetary income. Until about forty years ago, many economists besides Marx believed that the capitalist process tended to change relative shares in the national total so that the obvious inference from our average might be invalidated by the rich growing richer and the poor growing poorer, at least relatively.
But there is no such tendency. Whatever may be thought of the statistical measures devised for the purpose, this much is certain: that the structure of the pyramid of incomes, expressed in terms of money, has not greatly changed during the period covered by our material— which for England includes the whole of the nineteenth century8 —and that the relative share of wages plus salaries has also been substantially constant over time. There is, so long as we are discussing what the capitalist engine might do if left to itself, no reason to believe that the distribution of incomes or the dispersion about our average would in 1978 be significantly different from what it was in 1928.
The same phenomenon can be observed in all countries for which there is sufficient statistical information, if we clear the latter of the disturbing effect of the cycles of various span that are covered by the available material. The measure of income distribution (or of inequality of incomes) devised by Vilfredo Pareto is open to objection. But the fact itself is independent of its shortcomings.] One way of expressing our result is that, if capitalism repeated its past performance for another half century starting with 1928, this would do away with anything that according to present standards could be called poverty, even in the lowest strata of the population, pathological cases alone accepted. Nor is this all. Whatever else our index may do or may not do, it certainly does not overstate the actual rate of increase. It does not take account of the commodity, Voluntary Leisure. New commodities escape or are inadequately represented by an index which must rest largely on basic commodities and intermediate products.
For the same reason improvements in quality almost completely fail to assert themselves although they constitute, in many lines, the core of the progress achieved— there is no way of expressing adequately the difference between a motorcar of 1940 and a motorcar of 1900 or the extent to which the price of motorcars per unit of utility has fallen. It would be more nearly possible to estimate the rate at which given quantities of raw materials or semi-finished products are made to go further than they used to— a steel ingot or a ton of coal, though they may be unchanged in physical quality, represent a multiple of their economic efficiency sixty years ago. But little has been done along this line. I have no idea about what would happen to our index if there were a method for correcting it for these and similar factors. It is certain, however, that its percentage rate of change would be increased and that we have here a reserve that should make the estimate adopted proof against the effects of any conceivable downward revision. Moreover, even if we had the means of measuring the change in the technological efficiency of industrial products, this measure would still fail to convey an adequate idea of what it means for the dignity or intensity or pleasantness of human life— for all that the economists of an earlier generation subsumed under the heading of Satisfaction of Wants. And this, after all, is for us the relevant consideration, the true “output” of capitalist production, the reason why we are interested in the index of production and the pounds and gallons that enter into it and would hardly be worth while in themselves. But let us keep to our 2 per cent. There is one more point that is important for a correct appraisal of that figure. I have stated above that, broadly speaking, relative shares in national income have remained substantially constant over the last hundred years.
This, however, is true only if we measure them in money. Measured in real terms, relative shares have substantially changed in favor of the lower income groups. This follows from the fact that the capitalist engine is first and last an engine of mass production which unavoidably means also production for the masses, whereas, climbing upward in the scale of individual incomes, we find that an increasing proportion is being spent on personal services and on handmade commodities, the prices of which are largely a function of wage rates. Verification is easy. There are no doubt some things available to the modern workman that Louis XIV himself would have been delighted to have yet was unable to have— modern dentistry for instance. On the whole, however, a budget on that level had little that really mattered to gain from capitalist achievement. Even speed of traveling may be assumed to have been a minor consideration for so very dignified a gentleman. Electric lighting is no great boon to anyone who has money enough to buy a sufficient number of candles and to pay servants to attend to them. It is the cheap cloth, the cheap cotton and rayon fabric, boots, motorcars and so on that are the typical achievements of capitalist production, and not as a rule improvements that would mean much to the rich man. Queen Elizabeth owned silk stockings.
The capitalist achievement does not typically consist in providing more silk stockings for queens but in bringing them within the reach of factory girls in return for steadily decreasing amounts of effort. The same fact stands out still better if we glance at those long waves in economic activity, analysis of which reveals the nature and mechanism of the capitalist process better than anything else. Each of them consists of an “industrial revolution” and the absorption of its effects. For instance, we are able to observe statistically and historically— the phenomenon is so clear that even our scanty information suffices to establish it— the rise of such a long wave toward the end of the 1780′ s, its culmination around 1800, its downward sweep and then a sort of recovery ending at the beginning of the 1840′ s. This was the Industrial Revolution dear to the heart of textbook writers. Upon its heels, however, came another such revolution producing another long wave that rose in the forties, culminated just before 1857 and ebbed away to 1897, to be followed in turn by the one that reached its peak about 1911 and is now in the act of ebbing away.
These revolutions periodically reshape the existing structure of industry by introducing new methods of production— the mechanized factory, the electrified factory, chemical synthesis and the like; new commodities, such as railroad service, motorcars, electrical appliances; new forms of organization— the merger movement; new sources of supply— La Plata wool, American cotton, Katanga copper; new trade routes and markets to sell in and so on. This process of industrial change provides the ground swell that gives the general tone to business: while these things are being initiated we have brisk expenditure and predominating “prosperity”— interrupted, no doubt, by the negative phases of the shorter cycles that are superimposed on that ground swell— and while those things are being completed and their results pour forth we have elimination of antiquated elements of the industrial structure and predominating “depression.” Thus there are prolonged periods of rising and of falling prices, interest rates, employment and so on, which phenomena constitute parts of the mechanism of this process of recurrent rejuvenation of the productive apparatus. Now these results each time consist in an avalanche of consumers’ goods that permanently deepens and widens the stream of real income although in the first instance they spell disturbance, losses and unemployment. And if we look at those avalanches of consumers’ goods we again find that each of them consists in articles of mass consumption and increases the purchasing power of the wage dollar more than that of any other dollar— in other words, that the capitalist process, not by coincidence but by virtue of its mechanism, progressively raises the standard of life of the masses.
It does so through a sequence of vicissitudes, the severity of which is proportional to the speed of the advance. But it does so effectively. One problem after another of the supply of commodities to the masses has been successfully solved10 by being brought within the reach of the methods of capitalist production. The most important one of those that remain, housing, is approaching solution by means of the pre-fabricated house. [10 This of course also applies to agricultural commodities, the cheap mass production of which was entirely the work of large-scale capitalist enterprise (railroads, shipping, agricultural machinery, fertilizers).] And still this is not all. Appraisal of an economic order would be incomplete— and incidentally un-Marxian— if it stopped at the output which the corresponding economic conveyor hands to the various groups of society and left out of account all those things that the conveyor does not serve directly but for which it provides the means as well as the political volition, and all those cultural achievements that are induced by the mentality it generates.
Deferring consideration of the latter (Chapter XI), we shall now turn to some aspects of the former. The technique and atmosphere of the struggle for social legislation obscures the otherwise obvious facts that, on the one hand, part of this legislation presupposes previous capitalist success (in other words, wealth which had previously to be created by capitalist enterprise) and that, on the other hand, much of what social legislation develops and generalizes had been previously initiated by the action of the capitalist stratum itself. Both facts must of course be added to the sum total of capitalist performance. Now if the system had another run such as it had in the sixty years preceding 1928 and really reached the $ 1300 per head of population, it is easy to see that all the desiderata that have so far been espoused by any social reformers— practically without exception, including even the greater part of the cranks— either would be fulfilled automatically or could be fulfilled without significant interference with the capitalist process. Ample provision for the unemployed in particular would then be not only a tolerable but a light burden. Irresponsibility in creating unemployment and in financing the support of the unemployed might of course at any time create insoluble problems.
But managed with ordinary prudence, an average annual expenditure of 16 billions on an average number of 16 million unemployed including dependents (10 per cent of the population) would not in itself be a serious matter with an available national income of the order of magnitude of 200 billion dollars (purchasing power of 1928). May I call the reader’s attention to the reason why unemployment which everyone agrees must be one of the most important issues in any discussion of capitalism— with some critics so much so that they base their indictment exclusively on this element of the case— will play a comparatively small role in my argument? I do not think that unemployment is among those evils which, like poverty, capitalist evolution could ever eliminate of itself. I also do not think that there is any tendency for the unemployment percentage to increase in the long run. The only series covering a respectable time interval— roughly the sixty years preceding the First World War— gives the English trade-union percentage of unemployed members. It is a typically cyclical series and displays no trend (or a horizontal one). 11 Since this is theoretically understandable— there is no theoretical reason to call the evidence in question— those two propositions seem established for the prewar time to 1913 inclusive. In the postwar time and in most countries unemployment was mostly at an abnormally high level even before 1930. But this and still more the unemployment during the thirties can be accounted for on grounds that have nothing to do with a long-run tendency of unemployment percentages to increase from causes inherent in the capitalist mechanism itself. I have mentioned above those industrial revolutions which are so characteristic of the capitalist process. Supernormal unemployment is one of the features of the periods of adaptation that follow upon the “prosperity phase” of each of them. We observe it in the 1820′ s and 1870′ s, and the period after 1920 is simply another of those periods. So far the phenomenon is essentially temporary in the sense that nothing can be inferred about it for the future. But there were a number of other factors which tended to intensify it— war effects, dislocations of foreign trade, wage policies, certain institutional changes that swelled the statistical figure, in England and Germany fiscal policies (also important in the United States since 1935) and so on. Some of these are no doubt symptoms of an “atmosphere” in which capitalism will work with decreasing efficiency. That however is another matter which will engage our attention later on.
But whether lasting or temporary, getting worse or not, unemployment undoubtedly is and always has been a scourge. In the next part of this book we shall have to list its possible elimination among the claims of the socialist order to superiority. Nevertheless, I hold that the real tragedy is not unemployment per se, but unemployment plus the impossibility of providing adequately for the unemployed without impairing the conditions of further economic development: for obviously the suffering and degradation— the destruction of human values— which we associate with unemployment, though not the waste of productive resources, would be largely eliminated and unemployment would lose practically all its terror if the private life of the unemployed were not seriously affected by their unemployment.
The indictment stands that in the past— say, roughly, to the end of the nineteenth century— the capitalist order was not only unwilling but also quite incapable of guaranteeing this. But since it will be able to do so if it keeps up its past performance for another half century this indictment would in that case enter the limbo filled by the sorry specters of child labor and sixteen-hour working days and five persons living in one room which it is quite proper to emphasize when we are talking about the past social costs of capitalist achievement but which are not necessarily relevant to the balance of alternatives for the future. Our own time is somewhere between the disabilities of earlier stages in capitalist evolution and the abilities of the system in full maturity. In this country at least, the better part of the task could even now be accomplished without undue strain on the system. The difficulties do not seem to consist so much in the lack of surplus sufficient to blot out the darkest hues in the picture: they consist, on the one hand, in the fact that the unemployment figure has been increased by anti-capitalist policies beyond what it need have been in the thirties and, on the other hand, in the fact that public opinion as soon as it becomes at all alive to the duty in question, immediately insists on economically irrational methods of financing relief and one lax and wasteful methods of administering it.
Much the same argument applies to the future— and to a great extent the present— possibilities held out by capitalist evolution for the care of the aged and sick, for education and hygiene and so on. Also, an increasing number of commodities might reasonably be expected, from the standpoint of the individual household, to pass out of the class of economic goods and to be available practically up to the satiety point. This could be brought about either by arrangement between public agencies and producing concerns or by nationalization of municipalization, gradual progress with which would of course be a feature of the future development even of an otherwise unfettered capitalism.
ANDERSON ET AL. v. MT. CLEMENS POTTERY CO. No. 342
SUPREME COURT OF THE UNITED STATES
328 U.S. 680; 66 S. Ct. 1187; 90 L. Ed. 1515; 1946 U.S. LEXIS 3065; 11 Lab. Cas. (CCH) P51,233
January 29, 1946, Argued
June 10, 1946, Decided
[HN1] An employee who brings suit under ß 16(b) of the Fair Labor Standards Act of 1938 (Act), 29 U.S.C.S. ß 201 et seq., for unpaid minimum wages or unpaid overtime compensation, together with liquidated damages, has the burden of proving that he performed work for which he was not properly compensated. The remedial nature of this statute and the great public policy which it embodies, however, militate against making that burden an impossible hurdle for the employee. Due regard must be given to the fact that it is the employer who has the duty under ß 11(c) of the Act to keep proper records of wages, hours and other conditions and practices of employment and who is in position to know and to produce the most probative facts concerning the nature and amount of work performed. Employees seldom keep such records themselves; even if they do, the records may be and frequently are untrustworthy. It is in this setting that a proper and fair standard must be erected for the employee to meet in carrying out his burden of proof.
[HN2] When the employer has kept proper and accurate records, the employee may easily discharge his burden by securing the production of those records. But where the employer’s records are inaccurate or inadequate and the employee cannot offer convincing substitutes, a more difficult problem arises. In such a situation, an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.
[HN3] The employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with the requirements of ß 11(c) of the Fair Labor Standards Act of 1938, 29 U.S.C.S. ß 201 et seq. And even where the lack of accurate records grows out of a bona fide mistake as to whether certain activities or non-activities constitute work, the employer, having received the benefits of such work, cannot object to the payment for the work on the most accurate basis possible under the circumstances. Nor is such a result to be condemned by the rule that precludes recovery of uncertain and speculative damages. That rule applies where the fact of damage is itself uncertain. Where the employee has proved that he has performed work and has not been paid in accordance with the statute, the damage is certain. The uncertainty lies only in the amount of damages arising from the statutory violation by the employer. A reasonable inference may be made as to the extent of damages.
[HN4] Time clocks do not necessarily record the actual time worked by employees. Where the employee is required to be on the premises or on duty at a different time, or where the payroll records or other facts indicate that work starts at an earlier or later period, the time clock records are not controlling. Only when they accurately reflect the period worked can they be used as an appropriate measurement of the hours worked.
[HN5] The statutory workweek includes all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace. Time necessarily spent by the employees in walking to work on the employer’s premises, following the punching of the time clocks, is working time within the scope of ß 7(a) of the Fair Labor Standards Act of 1938, 29 U.S.C.S. ß 201 et seq. Such time is under the complete control of the employer, being dependent solely upon the physical arrangements in the factory. Without such walking on the part of the employees, the productive aims of the employer cannot be achieved. Time spent in walking to work on the employer’s premises, after the time clocks are punched, involves physical or mental exertion controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business. Work of that character must be included in the statutory workweek and compensated accordingly, regardless of contrary custom or contract.
[HN6] The workweek contemplated by ß 7(a) of the Fair Labor Standards Act of 1938, 29 U.S.C.S. ß 201 et seq., must be computed in light of the realities of the industrial world. When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act. It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.
[HN7] Preliminary activities after arriving at places of work involve exertion of a physical nature, controlled or required by the employer and pursued necessarily and primarily for the employer’s benefit. They are performed solely on the employer’s premises and are a necessary prerequisite to productive work. There is nothing in such activities that partakes only of the personal convenience or needs of the employees. Hence they constitute work that must be accorded appropriate compensation under the Fair Labor Standards Act of 1938, 29 U.S.C.S. ß 201 et seq. It is appropriate to apply a de minimis doctrine so that insubstantial and insignificant periods of time spent in preliminary activities need not be included in the statutory workweek.
ESTOPPEL: An employer who has received the benefits of the work of an employee cannot, in an action by him under the Federal Fair Labor Standards Act for unpaid minimum wages or overtime compensation, object to payment for the work on the most accurate basis possible under the circumstances where there are no accurate records of the work, due to a bona fide mistake as to whether certain activities or nonactivities constituted work. (LedHN5)
Respondent produces pottery for interstate commerce. Its employees enter the plant and punch time clocks during a period of 14 minutes before the regular starting time for productive work. They walk from the time clocks to their places of work within the plant and make various preparations for the start of productive work. After the regular quitting time, they were allowed a 14-minute period to punch out and leave the plant. They were compensated for their time from the next even quarter hour after punching in until the next even quarter hour prior to punching out. Similar provision was made for punching out and in before and after the lunch hour. Thus an employee might be credited with as much as 56 minutes per day less than the time recorded by the time clocks. Employees brought suit under ß 16 (b) of the Fair Labor Standards Act to recover amounts allegedly owing to them under the overtime provisions of ß 7 (a) of the Act. Held:
1. An employee who brings suit under ß 16 (b) for unpaid minimum wages or overtime compensation, together with liquidated damages, has the burden of proving that he performed work for which he was not properly compensated. P. 686.
2. This burden is met by proof that he has in fact performed work for which he was not properly compensated and by sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. P. 687.
3. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. P. 687.
4. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate. Pp. 688, 693.
W5. An employer who has not kept the records required by ß 11 (c) cannot be heard to complain that damages assessed against him lack the precision of measurement that would be possible had he kept such records. P. 688.
6. The findings of a special master on the purely factual issue of the amount of actual productive work performed, being supported by substantial evidence and not clearly erroneous, should have been accepted by the District Court; and it erred in rejecting these findings and creating a formula of compensation based on a contrary view. Rule 53 (e) (2) of the Federal Rules of Civil Procedure. P. 689.
7. Since there was no requirement that an employee check in or be on the premises at any particular time during the 14-minute interval, the time clock records could not form the sole basis of determining the statutory workweek. Pp. 689-690.
8. Time necessarily spent by the employees in walking to work on the employer’s premises is working time within the scope of ß 7 (a), and must be compensated accordingly, regardless of contrary custom or contract. However, application of the de minimis rule is not precluded where the minimum walking time is such as to be negligible. Pp. 691-692.
9. Time necessarily spent by employees in preliminary activities after arriving at their places of work — such as putting on aprons and overalls, removing shirts, taping or greasing arms, putting on finger cots, preparing the equipment for productive work, turning on switches for lights and machinery, opening windows, and assembling and sharpening tools — must be included within the workweek and compensated accordingly. However, application of the de minimis rule to insubstantial and insignificant periods of time spent in such activities is not precluded. Pp. 692-693.
10. Unless the employer can provide accurate estimates as to the amount of time spent in such activities in excess of the productive working time it is the duty of the trier of facts to draw whatever reasonable inferences can be drawn from the employees’ evidence. P. 693.
11. As to waiting time before and after the shift periods, the findings of the special master, that the employees had not proved that they were in fact forced to wait or that they were not free to spend such time on their own behalf, were supported by substantial evidence and must be sustained. P. 694.
COUNSEL: Edward Lamb argued the cause for petitioners. With him on the brief was Lee Pressman.
Frank E. Cooper and Bert V. Nunneley argued the cause and filed a brief for respondent.
Solicitor General McGrath, William S. Tyson and Bessie Margolin filed a brief for the Wage and Hour Administrator, United States Department of Labor, as amicus curiae, in support of petitioners.
JUDGES: Black, Reed, Frankfurter, Douglas, Murphy, Rutledge, Burton; Jackson took no part in the consideration or decision of this case.
OPINION BY: MURPHY
MR. JUSTICE MURPHY delivered the opinion of the Court.
Several important issues are raised by this case concerning the proper determination of working time for purposes of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U. S. C. ß 201 et seq.
The Mt. Clemens Pottery Company, the respondent, employs approximately 1,200 persons at its pottery plant at Mt. Clemens, Michigan; about 95% of them are compensated upon a piece work basis. The plant covers more than eight acres of ground and is about a quarter of a mile in length. The employees’ entrance is at the northeast corner.
Immediately adjacent to that entrance are cloak and rest rooms where employees may change to their working clothes and place their street clothes in lockers. Different shifts begin at different times during the day, with whistles frequently indicating the starting time for productive work. The whistles which blow at 6:55 and 7:00 a. m., however, are the most commonly used (682)
An interval of 14 minutes prior to the scheduled starting time for each shift permits the employees to punch time clocks, walk to their respective places of work and prepare for the start of productive work. Approximately 200 employees use each time clock during each 14-minute period and an average of 25 employees can punch the clock per minute.
Thus a minimum of 8 minutes is necessary for the employees to get by the time clock. The employees then walk to their working places along clean, painted floors of the brightly illuminated and well ventilated building. They are free to take whatever course through the plant they desire and may stop off at any portion of the journey to converse with other employees and to do whatever else they may desire.
The minimum distances between time clocks and working places, however, vary from 130 feet to 890 feet, the estimated walking time ranging from 30 seconds to 3 minutes. Some of the estimates as to walking time, however, go as high as 6 to 8 minutes. Upon arriving at their places of work, the employees perform various preliminary duties, such as putting on aprons and overalls, removing shirts, taping or greasing their arms, putting on finger cots, preparing the equipment for productive work, turning on switches for lights and machinery, opening windows and assembling and sharpening tools. Such activities, it is claimed, consume 3 or 4 minutes at the most. The employees are also allowed a 14-minute period at the completion of the established working periods to leave the plant and punch out at the time clocks.
Working time is calculated by respondent on the basis of the time cards punched by the clocks. Compensable working time extends from the succeeding even quarter hour after employees punch in to the quarter hour immediately preceding the time when they punch out.
Thus an employee who punches in at 6:46 a. m., punches out at 12:14 p. m., punches in again at 12:46 p. m. and finally punches out at 4:14 p. m. is credited with having worked the 8 hours between 7 a. m. and 12 noon and between 1 p. m. and 4 p. m. — a total of 56 minutes less than the time recorded by the time clocks (683-84)
Seven employees and their local union, on behalf of themselves and others similarly situated, brought this suit under ß 16 (b) of the Fair Labor Standards Act, alleging that the foregoing method of computation did not accurately reflect all the time actually worked and that they were thereby deprived of the proper overtime compensation guaranteed them by ß 7 (a) of the Act. They claimed inter alia that all employees worked approximately 56 minutes more per day than credited by respondent and that, in any event, all the time between the hours punched on the time cards constituted compensable working time.
The District Court referred the case to a special master. After hearing testimony and making findings, the master recommended that the case be dismissed since the complaining employees “have not established by a fair preponderance of evidence” a violation of the Act by respondent. He found that the employees were not required to, and did not, work approximately 56 minutes more per day than credited to them.
He further found that the employees “have not sustained their burden to prove that all the time between the punched entries on the clock was spent in working and that conversely none of the time in advance of the starting time spent by employees arriving early was their own time.” Production work, he concluded, “did not regularly commence until the established starting time; and, if in some instances it was commenced shortly prior thereto, it was counterbalanced by occasions when it was started after the hour and by admitted occasions when it was stopped several minutes before quitting time.”
As to the time between the punching of the clocks and the start of the productive work, the master made the following determinations:
(1) The time spent in walking from the time clocks to the places of work was not compensable working time in view of the established custom in the industry and in respondent’s plant to that effect.
(2) The time consumed in preliminary duties after arriving at the places of work was not compensable here since the employees had produced no reliable evidence from which the amount of such work could be determined with reasonable definiteness.
(3) The time spent in waiting before and after the shift periods was not compensable since the employees failed to prove that if they came in early enough to have waiting time they were required to do so or were not free to spend such time on their own behalf.
The District Court agreed “in the main” with the master’s findings and conclusions with one exception. It felt that the evidence demonstrated that practically all of the employees had punched in, walked to their places of work and were ready for productive work at from 5 to 7 minutes before the scheduled starting time, “and it does not seem probable that with compensation set by piece work, and the crew ready, that these employees didn’t start to work immediately.”
The court accordingly established a formula, applicable to all employees, for computing this additional time spent in productive work. Under the formula, 5 minutes were allowed for punching the clock and 2 minutes for walking from the clock to the place of work — a total of 7 minutes which were not to be considered as working time. All minutes over those 7 as shown by the time cards in the morning and all over 5 at the beginning of the afternoon were to be computed as part of the hours worked.
The court found no evidence of productive work after the scheduled quitting time at noon or night. In other words, working time under this formula extended from the time punched in the morning, less 7 minutes, to the scheduled quitting time at noon and from the time punched at the beginning of the afternoon, less 5 minutes, to the scheduled quitting time for the day. No reason was given for the 2-minute differential between the morning and afternoon punch-ins. The use of this formula led the District Court to enter a judgment against respondent in the amount of $ 2,415.74 plus costs. 60 F.Supp. 146.
Only the respondent appealed. The Sixth Circuit Court of Appeals made a careful examination of the master’s findings and conclusions, holding that they were all supported by substantial evidence and were not clearly erroneous. It stated that the District Court erred in failing to accept the finding of the master that productive work did not actually start until the scheduled time and that the formula devised for computing additional productive work was unsustainable because based upon surmise and conjecture. The Circuit Court of Appeals further held that the burden rested upon the employees to prove by a preponderance of the evidence that they did not receive the wages to which they were were entitled under the Act and to show by evidence rather than conjecture the extent of overtime worked, it being insufficient for them merely to offer an estimated average of overtime worked. The cause of action accordingly was ordered to be dismissed. 149 F.2d 461.
But we believe that the Circuit Court of Appeals, as well as the master, imposed upon the employees an improper standard of proof, a standard that has the practical effect of impairing many of the benefits of the Fair Labor Standards Act.
An employee who brings suit under ß 16 (b) of the Act for unpaid minimum wages or unpaid overtime compensation, together with liquidated damages, has the burden of proving that he performed work for which he was not properly compensated. The remedial nature of this statute and the great public policy which it embodies, however, militate against making that burden an impossible hurdle for the employee. Due regard must be given to the fact that it is the employer who has the duty under ß 11 (c) of the Act to keep proper records of wages, hours and other conditions and practices of employment and who is in position to know and to produce the most probative facts concerning the nature and amount of work performed. Employees seldom keep such records themselves; even if they do, the records may be and frequently are untrustworthy. It is in this setting that a proper and fair standard must be erected for the employee to meet in carrying out his burden of proof.
When the employer has kept proper and accurate records, the employee may easily discharge his burden by securing the production of those records. But where the employer’s records are inaccurate or inadequate and the employee cannot offer convincing substitutes, a more difficult problem arises. The solution, however, is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer’s failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee’s labors without paying due compensation as contemplated by the Fair Labor Standards Act. In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate. See Note, 43 Col. L. Rev. 355.
The employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with the requirements of ß 11 (c) of the Act. And even where the lack of accurate records grows out of a bona fide mistake as to whether certain activities or non-activities constitute work, the employer, having received the benefits of such work, cannot object to the payment for the work on the most accurate basis possible under the circumstances. Nor is such a result to be condemned by the rule that precludes the recovery of uncertain and speculative damages. That rule applies only to situations where the fact of damage is itself uncertain.
But here we are assuming that the employee has proved that he has performed work and has not been paid in accordance with the statute. The damage is therefore certain. The uncertainty lies only in the amount of damages arising from the statutory violation by the employer. In such a case “it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts.” Story Parchment Co. v. Paterson Co., 282 U.S. 555, 563. It is enough under these circumstances if there is a basis for a reasonable inference as to the extent of the damages. Eastman Kodak Co. v. Southern Photo Co., 273 U.S. 359, 377-379; Palmer v. Connecticut R. Co., 311 U.S. 544, 560-561; Bigelow v. RKO Radio Pictures, 327 U.S. 251, 263-266.
We therefore turn to the facts of this case to determine what the petitioning employees have proved and are entitled to in light of the foregoing considerations:
(1) On the issue as to the extent of the actual productive work performed, we are constrained to agree with the special master that it began and ended at the scheduled hours. This was purely a factual issue. The master made his findings in this respect through the weighing of conflicting evidence, the judging of the reliability of witnesses and the consideration of the general conduct of the parties to the suit. The master thereby concluded that productive work did not begin before the scheduled hours except in a few instances which were counterbalanced by occasions when work began after the scheduled hours or ended before the scheduled cessation of productive work. Our examination of the record leads us to acquiesce in these findings since they are supported by substantial evidence and are not clearly erroneous. And the court below correctly held that the District Court erred in failing to accept these findings and in creating a formula of compensation based upon a contrary view. Rule 53 (e) (2) of the Federal Rules of Civil Procedure. See Tilghman v. Proctor, 125 U.S. 136, 149-150; Davis v. Schwartz, 155 U.S. 631, 636-637.
(2) The employees did not prove that they were engaged in work from the moment when they punched in at the time clocks to the moment when they punched out. They were required to be ready for work at their benches at the scheduled starting times. They were given 14-minute periods in which to punch the time clocks, walk to the places of work and prepare for productive labors. But there was no requirement that an employee check in or be on the premises at any particular time during that 14-minute interval. As noted by the District Court, there was no evidence “that if the employee didn’t get there by 14 minutes to seven he was fired and there is much testimony to prove that stragglers came in as late as one minute to seven.” 60 F.Supp. at 149. Indeed, it would have been impossible for all members of a particular shift to be checked in at the same time in view of the rate at which the time clocks were punched. The first person in line at the clock would be checked in at least 8 minutes before the last person. It would be manifestly unfair to credit the first person with 8 minutes more working time than credited to the last person due to the fortuitous circumstance of his position in line.
Moreover, it is generally recognized that [HN4] time clocks do not necessarily record the actual time worked by employees. Where the employee is required to be on the premises or on duty at a different time, or where the payroll records or other facts indicate that work starts at an earlier or later period, the time clock records are not controlling. Only when they accurately reflect the period worked can they be used as an appropriate measurement of the hours worked. In this case, however, the evidence fails to indicate that the time clock records did so mirror the working time. They did not show the time during which the employees were compelled to be on the premises or at any prescribed place of work. They thus could not form the sole basis of determining the statutory workweek. See Interpretative Bulletin No. 13, paragraphs 2 and 3, issued by the Administrator of the Wage and Hour Division, U.S. Department of Labor; Wage and Hour Manual, Cumulative Edition, 1944-1945, p. 234.
(3) The employees did prove, however, that it was necessary for them to be on the premises for some time prior and subsequent to the scheduled working hours. The employer required them to punch in, walk to their work benches and perform preliminary duties during the 14-minute periods preceding productive work; the same activities in reverse occurred in the 14-minute periods subsequent to the completion of productive work. Since the statutory workweek includes all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace, the time spent in these activities must be accorded appropriate compensation.
No claim is here made, though, as to the time spent in waiting to punch the time clocks and we need not explore that aspect of the situation. See Cameron v. Bendix Aviation Corp., 65 F.Supp. 510. But the time necessarily spent by the employees in walking to work on the employer’s premises, following the punching of the time clocks, was working time within the scope of ß 7 (a). Ballard v. Consolidated Steel Corp., 61 F.Supp. 996; Ulle v. Diamond Alkali Co., 8 WHR 1042. Such time was under the complete control of the employer, being dependent solely upon the physical arrangements which the employer made in the factory. Those arrangements in this case compelled the employees to spend an estimated 2 to 12 minutes daily, if not more, in walking on the premises. Without such walking on the part of the employees, the productive aims of the employer could not have been achieved.
The employees’ convenience and necessity, moreover, bore no relation whatever to this walking time; they walked on the employer’s premises only because they were compelled to do so by the necessities of the employer’s business. In that respect the walking time differed vitally from the time spent in traveling from workers’ homes to the factory. Dollar v. Caddo River Lumber Co., 43 F.Supp. 822; Walling v. Peavy-Wilson Lumber Co., 49 F.Supp. 846. Cf. Commissioner v. Flowers, 326 U.S. 465. It follows that the time spent in walking to work on the employer’s premises, after the time clocks were punched, involved “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Tennessee Coal Co. v. Muscoda Local, 321 U.S. 590, 598; Jewell Ridge Corp. v. Local, 325 U.S. 161, 164-166. Work of that character must be included in the statutory workweek and compensated accordingly, regardless of contrary custom or contract.
But under the conditions prevalent in respondent’s plant, compensable working time was limited to the minimum time necessarily spent in walking at an ordinary rate along the most direct route from time clock to work bench. Many employees took roundabout journeys and stopped off en route for purely personal reasons. It would be unfair and impractical to compensate them for doing that which they were not required to do. Especially is this so in view of the fact that precise calculation of the minimum walking time is easily obtainable in the ordinary situation.
We do not, of course, preclude the application of a de minimis rule where the minimum walking time is such as to be negligible. [HN6] The workweek contemplated by ß 7 (a) must be computed in light of the realities of the industrial world. When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act. It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved. The de minimis rule can doubtless be applied to much of the walking time involved in this case, but the precise scope of that application can be determined only after the trier of facts makes more definite findings as to the amount of walking time in issue.
(4) The employees proved, in addition, that they pursued certain preliminary activities after arriving at their places of work, such as putting on aprons and overalls, removing shirts, taping or greasing arms, putting on finger cots, preparing the equipment for productive work, turning on switches for lights and machinery, opening windows and assembling and sharpening tools. These activities are clearly work falling within the definition enunciated and applied in the Tennessee Coal and Jewell Ridge cases. They involve exertion of a physical nature, controlled or required by the employer and pursued necessarily and primarily for the employer’s benefit. They are performed solely on the employer’s premises and are a necessary prerequisite to productive work. There is nothing in such activities that partakes only of the personal convenience or needs of the employees. Hence they constitute work that must be accorded appropriate compensation under the statute. See Walling v. Frank, 62 F.Supp. 261; Philpott v. Standard Oil Co., 53 F.Supp. 833. Here again, however, it is appropriate to apply a de minimis doctrine so that insubstantial and insignificant periods of time spent in preliminary activities need not be included in the statutory workweek.
The master did not deny that such activities must be included within the employees’ compensable workweek or that the evidence demonstrated that the employees did in fact engage in such activities. He denied recovery solely because the amount of time taken up by the activities and the proportion of it spent in advance of the established starting time had not been proved by the employees with any degree of reliability or accuracy. But, as previously noted, the employees cannot be barred from their statutory rights on such a basis. Unless the employer can provide accurate estimates, it is the duty of the trier of facts to draw whatever reasonable inferences can be drawn from the employees’ evidence as to the amount of time spent in these activities in excess of the productive working time.
(5) As to waiting time before and after the shift periods, the special master found that the employees had not proved that they were in fact forced to wait or that they were not free to spend such time on their own behalf. This was also a question of fact and the presence of substantial evidence to support the master’s finding precludes any different result.
Thus we remand the case for the determination of the amount of walking time involved and the amount of preliminary activities performed, giving due consideration to the de minimis doctrine and calculating the resulting damages under the Act. We have considered the other points raised by the petitioners but find no errors.
Reversed and remanded.
MR. JUSTICE JACKSON took no part in the consideration or decision of this case.
DISSENT BY: BURTON
MR. JUSTICE BURTON dissenting, with whom MR. JUSTICE FRANKFURTER concurs.
The opinion of the Court in this case has gone far toward affirming the Circuit Court of Appeals. I believe it should go the rest of the way.
This Court has agreed largely with the Court of Appeals in holding that the District Court was in error in not accepting the master’s findings of fact in the face of Rule 53 (e) (2) of the Federal Rules of Civil Procedure which requires that: “In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous.” 28 U. S. C. following ß 723 (c).
This Court, accordingly, agrees that the trial court must accept as findings of fact in this case that the productive work performed by the employees began and ended at the regularly scheduled hours of work, on the even quarter-hours; that the time clocks were not controlling in establishing the exact minute of starting or stopping work; that the time spent in punching time clocks did not constitute compensable work; and that the “waiting time,” if any, before and after the shift periods was not compensable time.
This Court also agrees that the District Court was in error in creating a formula of compensation not in accordance with the findings of the master.
The only questions remaining are whether the moments spent in walking from the time clocks to the employees’ respective places of productive work within the plant, and the minutes sometimes spent by some of the employees in miscellaneous “preliminary activities” before the scheduled starting times, must be added, as a matter of law “regardless of contrary custom or contract,” to the compensatory time of “the statutory week,” and, if so, how such additional time can be proved to have been so used in order to make it the basis for additional compensation.
The master determined that the time spent in walking from the time clocks to the places of work was not compensable working time in view of the established custom in the industry and in the plant. Moreover, the employees were free to take whatever course through the plant they desired and to stop off at any point to talk with other employees or to do whatever else they liked. Some workers came to the time clocks as late as one minute before the time to reach their place of productive work. The so-called “preliminary activities” are identified in this case as those of “putting on aprons and overalls, removing shirts, taping or greasing their arms, putting on finger cots, preparing the equipment for productive work, turning on switches for lights and machinery, opening windows and assembling and sharpening tools.” The master found that the employees had not offered proof of the time used for these purposes with a sufficient degree of reliability or accuracy for it to become the basis for recovery of overtime compensation. The employer would have still greater difficulty in keeping an accurate record of the time spent by each employee in such activities. These activities are of such a nature that the knowledge of them and the time spent in doing them rests particularly with the employees themselves. Such activities are of quite a different character from those made the basis of compensable time in the coal mine portal-to-portal cases. Tennessee Coal Co. v. Muscoda Local, 321 U.S. 590; Jewell Ridge Corp. v. Local, 325 U.S. 161.
Some idea of the shortness of the time and the smallness of the compensation involved in the “preliminary activities,” in comparison with the cumbersomeness of any system for accurately recording the time spent in doing them, is apparent from the formula to which the District Court resorted in attempting to reach its solution of the difficulty. Under that formula, for example, the District Court found no basis for compensation for such activities after the scheduled quitting time. Compensable time spent in such activities was limited to a short period before the scheduled hours of beginning productive work in the morning and again on resuming work after lunch. Employees were allowed, or encouraged, to come to the plant 14 minutes ahead of the quarter hour at which their scheduled productive work began. The District Court estimated that, on an average, seven minutes should be allowed, each morning, for punching a time clock and walking from it to the employee’s place of productive work. As to the “walking time” the court said, “the preparation even after punching the clock wouldn’t take more than one or one and a half minutes and to the farthest point in the plant from the time clock wouldn’t take more than 2 minutes.” 60 F.Supp. 146, 149. If an employee came to the plant 14 minutes ahead of time, this left a maximum of seven minutes, plus “walking time,” as the basis for a compensatory claim. The compensatory time in many cases would be much less. Similarly, under the District Court formula, employees returning to work after lunch were estimated to consume five minutes in punching the clock and walking to their places of productive work. This would leave a maximum of nine minutes, plus “walking time.” At that hour of the day the workers already would be in their work clothes and there rarely would be more than a minute or two required for the preliminary activities for which compensation was claimed.
The amounts at issue, therefore, might not average as much as five to ten minutes a day a person and would not apply at all to many of the employees. None of this time would have been spent at productive work. The futility of requiring an employer to record these minutes and the unfairness of penalizing him, for failure to do a futile thing, by imposing arbitrary allowances for “overtime” and liquidated damages is apparent.
While conditions vary widely and there may be cases where time records of “preliminary activities” or “walking time” may be appropriate, yet here we have a case where the obvious, long established and simple way to compensate an employee for such activities is to recognize those activities in the rate of pay for the particular job. These items are appropriate for consideration in collective bargaining.
To sustain the position of the Court in requiring these additional moments to be recorded and computed as overtime, it is necessary to hold that Congress, in using the word “workweek,” meant to give that word a statutory meaning different from its commonly understood reference to the working hours between “starting” and “quitting” time — or from “whistle to whistle.” There is no evidence that Congress meant to redefine this common term and to set aside long established contracts or customs which had absorbed in the rate of pay of the respective jobs recognition of whatever preliminary activities might be required of the worker by that particular job. For example, if the plant be one located at an inconvenient place, or if the workers have to change into working clothes at the plant, or have to grease or tape their arms before going to work, these are items peculiar to the job, and compensation for them easily can be made in the rate of pay per hour, per week or per piece, and all special stop-watch recording of them eliminated.
In interpreting “workweek” as applied to the industries of America, it is important to consider the term as applicable not merely to large and organized industries where activities may be formalized and easily measured on a split-second basis. The term must be applied equally to the hundreds of thousands of small businesses and small plants employing less than 200, and often less than 50 workers, where the recording of occasional minutes of preliminary activities and walking time would be highly impractical and the penalties of liquidated damages for a neglect to do so would be unreasonable. Such a universal requirement of recording would lead to innumerable unnecessary minor controversies between employers and employees. “Workweek” is a simple term used by Congress in accordance with the common understanding of it. For this Court to include in it items that have been customarily and generally absorbed in the rate of pay but excluded from measured working time is not justified in the absence of affirmative legislative action.
For these reasons, I believe that the judgment of the Court of Appeals should be affirmed.
Some Notes from Paul Chevigny, Gigs.
Throughout its existence, the union has been disrupted by “technological unemployment” (Chevigny, Gigs, 23)
“James C. Petrillo, having witnessed the shrinkage of jobs, was determined to resist the next great decimation after he became president of the AFM in 1940” (Chevigny, Gigs, 24)
“The use of musical recordings for broadcasts threatened to eliminate hundreds of jobs in radio, without any compensation to the musicians; a strike by musicians against the broadcasters could simply replace the musicians with recordings. To forestall the broadcasters, Petrillo called his most notorious job-action, a boycott of all recording sessions by union members, that ran for many months in 1942 and 1943. The band made Petrillo’s name synonymous in the press with ‘dictatorial’ and ‘featherbedding’ labor tactics. Hardly daunted, Petrillo called a similar ban in 1948. Both of these resulted in payments into trust funds established for musicians” (Chevigny, Gigs, 24)
“More importantly, the bans resulted in a national outcry against Petrillo, and in legislation directed against organized labor in general and the musicians union in particular. A direct result was the Lea Act of 1946, which introduced penalties for threats and other tactics to induce broadcasters to use musicians they did not want. In the Taft-Hartley Act of the next year, the featherbedding provisions as well as perhaps the secondary boycott restrictions were influenced by experiences with the musicians’ union”
Petrillo “came out of an environment in which all music was played live, in which one did not hear music except when produced by an individual or an orchestra… He was interested in work for live musicians, and in particular he organized the thousands who had been thrown out of work. Thus Petrillo never invested much effort in getting royalties for the musicians who made recordings, who were only a small fraction of the union, but instead saw to it that the trust funds were used to employ other musicians in concerts” (Chevigny, Gigs, 24)
Petrillo preferred direct action; as a result “a large part of the public, including a great many musicians, came to dislike him intensely” (Chevigny, Gigs, 25)
The union set minimum pay scales for venues, depending on size and type; thus a small jazz club could have a lower scale than a popular dance spot; “Leaders as well as side musicians were union members; representatives would come around to make sure that only union people were at work, and that there were no more people on the stand than the contract called for. The leader had to discipline the band in accordance with union rules, on pain of being tried and fined by the union.” (Chevigny, Gigs, 26)
“It is easy to see how a wooden application of the traditional factors for the employee/independent contractor distinction could lead to the conclusion that almost any musician, but especially a jazz musicians working in clubs, is an independent contractor. The musician brings her own tools (unless she plays an acoustic piano), displays great skill, is paid by the job—usually one of short duration—and is typically a luxury rather than a necessity in the business of selling food or liquor. And if she is a jazz musician, she does not want to get much direction from the club owner about what she plays. She plays something at least a little different every night and the better she is, the more discretion she has in playing it. From the point of view of her playing, the jazz musician is practically the musical embodiment of an independent contractor: independence is one of her defining characteristics” (Chevigny, Gigs, 33)
Here is a case where the formalistic test is misleading, unless the factors are interpreted in a sophisticated way: “The employer supplies the pace of work, and usually controls the work in a general way. He chooses the musicians for their style of music, and expects them to play within it. He dictates the times the musicians will show up, and when the music will be played. Although he pays by the job, he often pays the same amount each night, even to varying groups of musicians. And so forth”—upshot—it is almost always possible for an employer to argue that the jazz musician is an independent contractor (Chevigny, Gigs, 33)
Richard Flacks–son of CPUSA members, founding member of the SDS and key figure in the New Left, a victim of horrific violence (likely at the hands of state actors or intermediaries) in the late 1960s, an important sociologist of popular social movements and the place of music in solidaristic cultures, and a generous mentor to generations of students at UC Santa Barbara–penned this reflection on surveillance that I think is beautiful, profound, and sobering. He has given me permission to distribute it. It’s an important piece.
The FBI started tracking me when I was 10 years old. I was a subject of their surveillance for decades after–surveillance that included phone tapping, undercover informants and the collection of all kinds of information about my activities, whereabouts, associations. In 1968, J. Edgar Hoover authorized the sending of a letter, signed by a ‘concerned alumnus’, detailing information from FBI files with the expressed intent of having me fired from my faculty position at the University of Chicago.
I came to the attention of the FBI as a child because my parents sent me to a leftwing children’s camp; presumably everyone attending that camp was somehow identified and had a file with the FBI. IN the years after, the FBI periodically questioned my landlords and neighbors and school officials about my whereabouts—presumably because I was a child with a suspect parentage. Later, I did enough to warrant more aggressive surveillance—having helped found and lead the Students for a Democratic society and, in other ways, opposing the government war policies. I learned about all this in the mid-seventies because of the initiatives of the Church committee—established by congress when, in the wake of Watergate, concern about FBI and other government illegal surveillance became known.
A history of the USA should be written from the angle of how government and private surveillance of political dissenters has evolved, and how such practices have affected the political and cultural life of the society. The FBI—its early staff and methods and files—derived from the Pinkerton company, the private spy agency used by corporations to destroy labor agitation and action. Once established as a Federal agency, J. Edgar Hoover’s main preoccupation was to expand the budget and hence the physical capability of the Bureau to conduct surveillance. He sold the FBI for its crime fighting achievement, which included all kinds of technical capacity to track down criminals and develop the evidence to convict them. But its power was greatly enhanced when FDR authorized the FBI to undertake surveillance of both Nazis and Communists prior to the advent of World War II. In the postwar years, the FBI developed an army of undercover agents and much technical capacity for penetrating the Communist Party and other groups deemed subversive by the attorney general and so a list of such organizations was developed. Congress passed laws authorizing the establishment of lists of people to be rounded up and incarcerated in the event of a national emergency. Harry Truman established a ‘loyalty’ program that authorized surveillance of all federal employees. JFK and Bobby Kennedy authorized an intensive surveillance of Martin Luther King, which included phone taps, bugging of hotel rooms and other eavesdropping.
Hoover routinely used surveillance of presidents and other public figures to gather information that could use to compel them to enhance his power. The Kennedy brothers undoubtedly authorized the disgraceful treatment of King because of Hoover’s blackmail (and he had a lot of goods on JFK). LBJ didn’t need to be blackmailed to authorize Hoover to undertake draconian surveillance of the social movements of the sixties—the resulting ’COINTELPRO’ quickly became a framework for illegal surveillance and direct government attack on organizations and individuals (such as myself) without any due process. Nixon planned even more draconian measures, and established his own in house surveillance team aimed at Teddy Kennedy, the Democratic Party and Daniel Ellsberg.
Whistle blowers in the Watergate episode coupled with congressional investigation exposed a lot of this. The theft of thousands of FBI files by still unknown persons during that period added much to public knowledge of the secret machinations of the FBI. In the seventies, the Freedom of information Act and a new regulatory regime established at the FBI were among the measures that blunted the growing edges of government surveillance of American citizens. But the expansionary drive of the national security/surveillance state was revitalized by 9-11. And now we know a bit more than we did, because of Edward Snowden’s gutsy moves, about how far this drive has taken us.
We can learn from the past—if we are aware of it—that the issue isn’t ‘privacy’. Everybody knows that most of us have traded a lot of privacy for the magical communicative ease provided by digital technologies. Indeed, ‘privacy’ sounds like a luxury—and indeed you can get more of it the more money you have. Nor is the issue ‘security’—since no one has been able to explain how the amassing of vast data bases of the electronic behavior of hundreds of millions of people is essential for identifying and capturing ‘terrorists’. Indeed, those who are supposed to oversee these databases have been denying or failing to make clear the full scope of what they are collecting—if we are supposed to be much safer because of all this surveillance, why not give a clue about how that is the case?
The issue instead is what Snowden says it is: The existence of these capabilities—and the storage of these data—give enormous power to be used, not against ‘the bad guys’ but against anyone or any group that those with access to the data might at some point want to punish or control. That is what Hoover was doing with his apparatus and files, and what Nixon began to do when he sent the ‘plumbers’ into private offices of his ‘enemies’, among many examples of abuse that have helped shape our history. The growth of the surveillance state undermines the capacity to initiate and build social movements—especially ones that might threaten entrenched power. That’s not a question of ‘privacy’.
President Obama, we might have imagined, would see and know all this. That he has made his own devil’s bargains (less reprehensible I believe than those made by his liberal predecessors), is a measure of the political power of the national security apparatus. But when the president tells us that congress has authorized what has been going on—and when Senator Feinstein, head of the Senate intelligence committee—agrees, the subtext of this is obvious: it is up to congress to do what it did 40 years ago. Set up a committee that will have as its aim the public examination of the intelligence/surveillance apparatus so that we can actually have a public debate (which Obama has called for) about how to control it. Why did Jefferson (or whoever) declare that: ‘Eternal vigilance is the price of liberty”? It’s exactly because of times like these.
Sometimes life hands you precisely the (in-need-of-correction) quote you desire in order to argue that your research isn’t stupid:
Morton J. Horowitz
“This chapter focuses on Holmes’s theoretical writings through ‘The Path of the Law,’ which represents his last effort at self-conscious, abstract discussion of legal theory. Though the influence of Holmes’s judicial career–especially his years on the U.S. Supreme Court–is undoubtedly of major significance for the history of legal thought, these were not years of jurisprudential innovation.”
In The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 109.