18 | International Union Rights | 24/2 FOCUS | UNITED STATES The Contested Origins and Future of ‘Right to Work’ Laws Everything about so-called ‘right to work’ is contested. Its history, purpose, promoters, effects, even its name all remain unsettled. Contrary to how it may sound to one not steeped in the nuances of American labour history or law, ‘right to work’ is not a reference to the right to one’s job or the right to employment, or a rebuke to the norm of American at-will employment. Rather, ‘right to work’ means the right of a worker to be represented by a union, but not pay any union dues or fees. Though it is a relatively obscure issue, especially now that private sector labour density is at its lowest since joining a union became a protected right in 1935, it has become a central tenet of American conservatism and one of the primary battlefields of contemporary labour law. The US is today at a point where ‘right to work’ is quickly becoming the norm. States have been permitted to pass ‘right to work’ laws since the TaftHartley Act amended the Wagner Act in 1947. At the time of writing, a majority of states (28) have adopted such laws. Most recently, states long-known as union strongholds in the industrial Midwest, such as Indiana, Wisconsin, and Michigan, have passed ‘right to work’ laws. In Kentucky, individual counties began passing ‘right to work’ laws, and the Sixth Circuit Court of Appeals has recently held that the laws were permissible1. The story of the development of ‘right to work’ is one of divergent beginnings. On the one hand, there was a string of early railroad cases, where AfricanAmerican workers challenged the closed shop as a means of gaining rights on the job, arguing that the Constitution guaranteed black workers the right to be full members of majority white unions. On the other hand, a more cynical push for ‘right to work’ was developed by business and racist interests, arguing that the Constitution gave white workers the right not to be a member of a union with black workers. These two strands – represented by contemporaries Ed Teague and Vance Muse – both provide the legal beginnings of ‘right to work’, but it is this latter strain that has persisted. A Conservative ‘Magna Carta’ The beginnings of the concept of ‘right to work’ can be traced to the American Civil War, and in the labour battles that followed. But the modern proponents of ‘right to work’ – chief among them, The National Right to Work Committee and Legal Defense Foundation (NRTW) – trace the concept to an editorial by the Dallas newspaperman William Ruggles on Labor Day 1941. Entitled ‘Magna Carta’, Ruggles’ editorial consciously re-appropriated labour’s use of the phrase to describe the Clayton Antitrust Act of 1914, which declared that ‘the labor of a human being is not a commodity or article of commerce’, and thereby opened the door for workers to legally organise)2. Ruggles’ editorial began with a suggested 22nd Amendment to the Constitution, enshrining the concept of right-to-work in the nation’s founding document. Published as Europe and Asia were crumbling under the weight of World War II, Ruggles explained that the right-to-work issue ‘is a greater crisis than the international situation, for on its solution may depend our ability to face the dark international future’3. Ruggles and the NRTW have spread the idea that right-to-work ‘both as a legal principle and a title’ was Ruggles’s ‘brainchild’, and that it spread organically among disaffected workers. However, decades earlier, one can find articles with titles such as ‘Right to Work’ and ‘Right to Work: The Story of the Non-striking Miner’4. These appeared for decades prior to Ruggles’ editorial, always posing the fight as one between pro-union and anti-union workers, with employers ostensibly on the sidelines open to whatever the workers decide. By 1930, management organisations, such as the Merchants’ and Manufacturers’ Association had an ‘Open Shop Labor Temple’ and ‘free employment bureau,’ which ‘guarantees to the independent worker the right to work… guarantees to the employer the right to employ...