Belabored Fictions

To trace the construction of a "commodity" out of the ephemeral activity of the overlookers we have so far relied upon the cultural assumptions inscribed in manufacturing practice. In contexts where these suppositions had to be articulated explicitly, they can be found in discursive practice as well. The assumption in Germany that textile supervisors sold the disposition over their work activity, not merely objectified labor, came to light in the judicial interpretation of overlookers' employment contracts. The most arresting legal question for German mill owners in 1911, gauging by the coverage given it by the trade's professional journals, centered on a complaint filed by an overlooker in a town near Düsseldorf. Today the minutiae of this conflict seem, in a word, dull—but not the participants' perception of the facts. The news accounts indicate that the owner of a silk mill hired a certain Herr K. in 1910 to oversee his dyeing department.^[65] By the terms of the four-year contract they concluded, the foreman held the title of Obermeister (chief foreman) and headed the whole department. He agreed to obey the firm's production directives under all circumstances. Twelve months after the start of the agreement, the owner found it necessary to divide the velvet section from the remainder of the dyeing department, and

[62] General Union of Associations of Powerloom Overlookers, The Almanack and Guide for 1899 (Manchester: Ashton and Redfern, n.d.).

[63] Reiser, op. cit., p. 146. Similarly, consult Leitner, op. cit., pp. 93, 179.

[64] See HSTAD, Landratsamt Lennep 275, 1865, letter of Bürgermeisterei Radevormwald, for treatment of labor in this fashion.

[65] Seide , April 10, 1912.

he entrusted supervision of the new section to another person. Herr K. retained his title and salary. Yet he charged the owner with a violation of the employment contract on the grounds that the owner had to let him keep the entire department or dismiss him altogether. Before the provincial court in Düsseldorf, Herr K. demanded payment in full of his remaining (three years') salary, since the contract specified that this was due to him in case of dismissal.

How is it that this course of events, whose unfolding makes today for such pedestrian reading, managed to hold the interest of contemporaries? The manner in which the business community endowed the conflict with significance represents an odd fact; its strangeness offers a riddle about the culture of production.

Although the courts ultimately resolved the suit through an evaluation of the pettiest terms of the employment contract, the business community thought that the case raised a basic question about the nature of the factory staff's employment contract. Owners and staff asked whether Herr K. might not have "the right to fully utilize his own capacity for work."^[66] One technical journal summed up the issue at stake this way: "A company official, who has bound himself by a contract, naturally has the duty to place his full abilities at the disposal of the enterprise; but it is not so automatic that he also has the right to see that his capacity for work is taken advantage of to the full."^[67] Certainly this organ's coverage of the affair threw the foreman's right into question. Yet in its analysis the magazine formulated the possibility of the right as the reverse side of the foreman's contractual obligations. And in so doing the journal, like the foreman's lawyer, revealed something about the business community's understanding of the labor transaction that was set in motion by the employment contract.

In formulating Herr K.'s rights, the press assumed that he offered for remuneration, not the successful turn-out of a quantity of dyed materials, but the disposition of his activity. The business community took the foreman's Arbeitskraft as the basis of the exchange, applying the same generic term for the factory official's productive capacities as for those of ordinary workers. This focus on the sale of the capacity for executing work, rather than on its external outcomes, was widespread: in discussions of the legal fine points of hiring factory staff, German business periodicals did not state,

[66] Zeitschrift für die gesamte Textil-Industrie , January 4, 1912.

[67] Zeitschrift für die gesamte Textil-Industrie , Nr. 13 (1912), p. 255.

for example, that by accepting a position factory officials obligated themselves to do the best job they could for the owner; they said that the staff had to devote all their abilities and knowledge to the interests of the owner.^[68] Only with the premised sale of "labor power" in view could the foreman's lawyer possibly have articulated his client's complaint in terms of a "right to the full exploitation of his labor power."^[69] Since the owner understood that he bought the foreman's full capacity, the argument went, he could not alter that capacity's sphere of operation or application. The contract's provision that the owner still had to pay Herr K.'s full salary even in case of dismissal also follows the supposition that the contract covers the disposition of the activity rather than of the output: Herr K. offered up his full capacities and therefore deserved compensation for having offered them even after he was released from the firm.

In its decision the provincial court of Düsseldorf in 1911 sided with Herr K. The owner appealed the decision on the grounds that it interfered with his prerogative to manage his own business. Finally in 1912 the imperial court at Berlin ruled for the owner; it judged that if the owner had the right to dispense with the foreman's services (at the cost of paying him his full salary), then the owner also had the right to dispense with a part of the foreman's services. In this instance the court ranked the right to full exploitation of one's labor capacity as subordinate to another principle—the owner's management authority. For my cultural analysis the fact of primary significance is simply that the conflict was expressed in terms of the sale of Arbeitskraft at all.^[70]

My interpretation of the German courts' emphasis on labor power, far from representing a kind of philosophic abstraction, does nothing more than follow the thoughts of the participants themselves. In an age when owners usually regarded the small stratum of professional employees as a species apart from the manual workers under command, the owners nonetheless used the term labor power for a factory official's technical services.^[71] Only

[68] Zeitschrift für die gesamte Textil-Industrie , Nr. 17 (1912), p. 346.

[69] "Das Recht auf volle Ausnutzung seiner Arbeitskräfte." Ibid.

[70] This final decision by the imperial court also seems to contradict the earlier judgments of provincial courts. For example, the Landgericht of Hanau in 1906 ruled that if a foreman were moved to another position, the employer was obligated not just to assure the same level of pay but to provide a setting that suited the foreman's "abilities and skills." Das Gewerbegericht , Volume 12, Nr. 9 (June 1, 1907), pp. 199–200, ruling of March 13, 1906.

[71] For another instance in which a court—the Prussian Kammergericht—referred to a supervisor's donation as the consumption of Arbeitskraft , see Die Textilarbeiter-Zeitung , August 7, 1909.

on the basis of logical assumptions about labor activity on behalf of the enterprise in general could they have abstracted this essential similarity between types of action whose overt appearances and prestige seemed otherwise so discrepant.

If the history of Herr K. discloses something about Germans' perception of the labor activity in general, as opposed to something about the status of overlookers, then we ought to be able to find analogous cases for lower grades of workers. This poses a special challenge, since most factory labor codes governing the employment relation specified the owner's right to switch ordinary workers to another machine or task. Yet a German technical journal in 1900 described a dispute involving a lower worker that offers a close parallel to Herr K.'s case.^[72]

The facts of the case were these: a regular factory hand in Berlin stayed on the job after a portion of his company's work force began a strike. The management suspected the worker of organizing support for the strikers at the shop. It requested that he cease actual labor but continue to show up briefly at the company's desk twice each day. In this fashion the firm could isolate him from his fellows but avoid freeing him for an entire day to earn money elsewhere. These check-ins were to continue during four weeks, because, according to the factory labor code issued by the owner, both worker and owner had to give four weeks' notice if they wanted to terminate the employment contract. During this period the firm offered to continue paying the worker his full wage. But the worker objected that unless he worked, he was not obligated to check in at the office at all. After the firm fired him, he complained in court that four weeks' pay was due him for his unjustified removal. His employer argued in court that by requesting that the worker check in, he had simply wished to verify the worker's readiness to work (Arbeitsbereitschaft ). In any event, the employer reasoned, a worker had to report in twice during a regular workday, so the firm was not demanding anything exceptional of him. In the dangerous atmosphere of a strike and at a court which was not known for its support of workers' interests, the judge ruled in favor of the worker. "The plaintiff had a right during the [four-week] interim period not just to payment of his wages," the judge decided, "but to the carrying out of his contractual employment as well."^[73]

[72] Seide , November 14, 1900, p. 728.

[73] Ibid.

The Berlin court's decision attached the complex of legal norms to the employee as a bearer of work capacity, not to a person who merely received pay. In a similar case a decade later, the business court of the city of Chemnitz judged that the employment contract required the owner to use the workers' labor capacity and not merely to guarantee compensation.^[74] In Britain, by contrast, the laws pertaining to employment were the same as those covering agreements for the delivery of products. Workers could be dismissed without obligation, even if the employment contract required prior notice, so long as they received compensation for the work they could otherwise have completed. The concepts of labor that the manufacturers enacted in practice, the courts sanctified in words.