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Riding The Tiger

“I discovered that being a President is like riding a tiger. A man has to keep on riding or be swallowed.” Harry S. Truman

Legal History Shows Tactical Shifts of Right-to-Work Movement

Leon Bates (UAW leader) handing out UAW—United Auto Workers literature during the 1941 organizing drive at Ford.

Leon Bates (UAW leader) handing out UAW—United Auto Workers literature during the 1941 organizing drive at the Ford Motor Company - River Rouge plant - gate #4 on Miller Road. PD.

This week, the state of Michigan passed and Governor Rick Snyder signed into law new right-to-work legislation. The two measures ban unions from requiring workers to pay membership dues. The tactics employed by supporters to pass the measures show they have learned from recent efforts. The measures were attached to an appropriations bill, which exempts it from being taken to a referendum. The measures also exclude firefighters and police, groups that were critical in overturning similar measures in Ohio. The right-to-work effort underway in a number of states also demonstrates the power of conservatives at the state level, despite the Republican loss in the presidential election.

Last week, Sophia Lee, an assistant professor of law at the University of Pennsylvania Law School, presented a chapter on her forthcoming book at the Miller Center’s GAGE Colloquium. Lee’s new book provides insight into the current situation by examining the history of two important and powerful, but competing movements since the 1930s – the civil rights movement and the right-to-work movement.  Her book explains why the state action doctrine survived the civil rights and conservative revolutions, and explores the implications of this history for the workplace and beyond.

The thriving right-to-work movement at the state level today has its roots in the 1940s. Though it hasn’t always been politically successful, the right-to-work movement has been deeply intertwined with the conservative and anti-New Deal movement. Lee documents one of the earliest conservative efforts to apply the Constitution to the workplace. In 1944, Hollywood impresario and showman, Cecil B. deMille brought a lawsuit to the court challenging the constitutionality of a one-dollar fee levied on him by his union. Lee notes that this was the first of many campaigns to pass a right-to-work law banning mandatory support for unions in the state of California.  According to Lee:

Like the black railroad workers of his day, deMille struggled to articulate why the Constitution reached his workplace. To say he was unsuccessful would be an understatement. The California courts found his claim near incomprehensible. But deMille was not deterred. He spent the rest of the 1940s building a foundation to champion the right-to-work and taking his constitutional theories to the prominent public pulpits at his disposal.

In the 1950s, right-to-work advocates, with the help of deMille, formed their first organizations dedicated to getting the Supreme Court to declare mandatory support for unions “in conflict with the Bill of Rights.” Although the right-to-work movement won potentially promising precedent in the Supreme Court, it didn’t achieve all that it had hoped for.