All Right, Mr. DeMille, I’m Ready for My Contract

PETER: This is BackStory. I’m Peter Onuf.

ED: I’m Ed Ayers.

BRIAN: And I’m Brian Balogh. Today on the show, we’re anticipating a ruling in the big marriage rights case of the Supreme Court, with an hour about the history of rights claims in America. We’re going to turn now to another rights struggle that has been in the news recently. And that’s the right to work.

PETER: Right to work laws started cropping up in the 1940s, as a sort of backlash against the National Labor Relations Act of a few years earlier. That law allowed labor unions to create so-called closed shops, where workers were required to join the Union. But these new state laws said, no, workers had the right to work for an employer, regardless of their union status.

BRIAN: In 1944, a proposed right to work law showed up on the California ballot. It was known as Prop 12, and quickly found a very vocal supporter. Someone you’ve probably heard about in a different context– Cecil B. DeMille. The wildly famous radio host and filmmaker, known for blockbusters like The Ten Commandments was a union member. He had joined the American Federation of Radio Artists, or AFRA, to work in radio.

But when AFRA demanded that each of its members contribute $1 to fund a campaign against Prop 12, DeMille was outraged. He refused to help support a lobbying effort he didn’t even agree with. And so, the Union suspended him.

CECIL DEMILLE: As a result of that suspension, I lost my right to work in radio and television.

BRIAN: This is from a right to work propaganda film DeMille made, years later.

CECIL DEMILLE: The loss of my radio job did not bankrupt me, but it woke me up with a terrible jolt to my responsibility, and to your responsibility, to work for legislation that will protect men and women to whom the loss of a job might mean disaster. In the near–

BRIAN: Sophia Lee is a legal historian at the University of Pennsylvania, who’s written about the campaign DeMille would go on to wage. It began with a lawsuit, accusing AFRA of violating his liberty of contract. That’s a legal doctrine, protecting the right of workers and employers to enter into an agreement, without the interference of union bosses. But Sophia Lee says that he quickly realized his lawsuit would face an uphill battle in the pro-labor courts of the time. And so, he took his battle to the court of public opinion.

SOPHIA LEE: What he did was he used his story– a story in which he was jut this humble man who didn’t want to pay his dollar, and didn’t want to sell out his constitutional rights. And he took that story to the airwaves. One of his conservative allies bought him, on Saint Patrick’s Day, 1945, a full hour of national radio time. Newspaper editorials printed and told his story.

And so, what DeMille quite modestly set out to do was change the political spirit of the time to one that was more anti-labor, with a very specific goal of an outcome that would, down the road, change the way the Supreme Court and the courts of the land understood the Constitution.

BRIAN: Did DeMille or his lawyer cite any other rights in their challenge to the union?

SOPHIA LEE: So one of the interesting things that happened to DeMille’s argument over the course of the 1940s was it changed. I mean, every single court– the trial court, the court of appeals– all said, I’m sorry Mr. DeMille, but your rights have not been violated– that DeMille remained perfectly free to support, financially, the right to work law, to vote for the right to work law. So DeMille, I think, again, being such a sharp salesman and a guy who knew how to package a winning message, started to shift his claims more in line with First Amendment minority rights claims.

So he still claimed a right to work. But he also started to talk in a way that shifted from, there was this great mass of people who were like DeMille, and there was this small minority of bad union leaders, who they were up against. He started flipping that rhetoric to there being this big mass of bad union people out there, and this small minority of people like DeMille, who needed to stand up to them. So he also kind of more broadly shifted to minority rights, kind of rhetoric.

BRIAN: Sophia, that proposition 12 that DeMille supported– one that would have imposed a right to work law in California– did that pass?

SOPHIA LEE: It lost. And to this day, California does not have a right to work law. It was one of the first states to try to pass one, and it is one that has never done it since, though the law has spread steadily in the South and upper Midwest, over the course of the 1940s and 1950s.

BRIAN: Sophia, if you step back, it seems like DeMille lost, in a narrow sense, here. He certainly lost in the courts. Yet, you talk about all this cultural work he does, or political culture– trying to change public attitudes, towards unions. Did he succeed in the long run?

SOPHIA LEE: I think he succeeded quite dramatically. And I think you can see the sort of short term effects in this cultural shift going on by the fact that, in the 1946 election cycle, Republicans sweep control of Congress. And one of the very first pieces of legislation they take up in 1947 is a number of measures to reform the National Labor Relations Act that conservatives had been trying to get pushed in Congress for about 10 years, at that point. And one of the people called to testify about these amendments is Cecil B. DeMille, who gives what he calls, his brief, on the right to work to Congress. And one of the provisions of that law is that it bans the closed shop.

So after 1947, that particular form of union security agreement is no longer allowed. The other thing it does is it specifically says that if states want to pass right to work laws, and bar all forms of union security, they have the legal room to do that, as well. And that– the adoption of that law– is sort of a green light. And in its wake, a number of states adopt these right to work laws. So that’s one way he was successful.

BRIAN: Yeah, that legislation is the Taft-Hartley Act. And how many states passed right to work laws in the wake of the Taft-Hartley Act of 1947?

SOPHIA LEE: Well, if you skip ahead to, say, the mid 1950s, by– I think 1955, there were somewhere between 17 and 20 right to work laws across the country. And from zero to nearly half the states was a pretty dramatic transformation, in what was really just a little over 10 years.

BRIAN: Sophia Lee is a historian at the University of Pennsylvania Law School. Her book is The Workplace Constitution, from the New Deal to the New Right.