Collective Bargaining for Local Public Employees in Colorado
| Publication year | 1979 |
| Pages | 2123 |
1979, November, Pg. 2123. Collective Bargaining for Local Public Employees in Colorado
In recent years, the employees of local governmental units (municipalities, counties, school districts and various special service districts)(fn1) have made increasing demands that their employers engage in the process of collective bargaining in establishing those employees' wages, hours of work and other working conditions. It has only been within the past twenty years, however, that several state legislatures have begun to address this problem and to adopt legislation formalizing the procedures to be followed by such employers when engaging in this process.(fn2)
Except in two instances(fn3) the Colorado General Assembly has provided to the local public employers and employees in Colorado no comprehensive statutory guidelines to follow when seeking to utilize the collective bargaining process. It has been left, therefore, almost exclusively to Colorado's judiciary to establish such substantive guidelines as may now exist within this area. Due to this lack of any legislatively declared public policy over the matter, the courts have been required to deal with problems arising out of this process solely upon the basis of their own concept of the state 's public policy, through a "common law" approach, as influenced by general constitutional and statutory provisions. These general legislative provisions, however, were adopted long prior to the time that the concept of public employee collective bargaining was developed and do not speak directly to any specific legal issue which might arise out of that process.
Indeed, until the Colorado Supreme Court rendered a series of decisions within recent years that address various issues in the public employee field, there was little Colorado "law" to which the local governments and their employees could look to ascertain their legal rights and obligations arising out of the bargaining relationship. That series of decisions, while by no means dispositive of all issues which have been or can be raised as a result of public employee collective bargaining, nevertheless does provide some criteria for the process. Unfortunately, these decisions also raise nearly as many questions as they resolve, and the questions raised radiate far beyond the narrow field of public employee labor law into many other, totally unrelated areas of municipal law.
At the same time, while the number of local governmental units which engage in collective bargaining is surely increasing, the practice is still one of fairly recent
origin. Consequently, when a demand is made upon the local government to adopt a system of collective bargaining for its employees, the representatives of that local government, including its legal counsel, may be unfamiliar either with the system's underlying concepts or with the legal requirements associated with it.
One purpose of this article, therefore, is to review, on the most general of bases, the criteria traditionally adopted for collective bargaining. It also intends to suggest the type and nature of some of the legal problems that may be encountered by any local government that elects to engage in such bargaining.
No discussion of the Colorado law relating to collective bargaining for local public employees can begin until a clear understanding of the conceptual bases underlying that process is gained. "Collective bargaining," as it is commonly understood and practiced today, is a process for the establishment of employees' wages and other conditions of employment by negotiations between their employer and a representative voluntarily designated by a majority of the employees to be affected by those negotiations. Although this concept and the concept of a "collective bargaining agreement" antedated any statutory enactment,(fn4) the underlying concepts involved in the process have assimilated the requirements established by the Railway Labor Act (adopted 1926)(fn5) and the National Labor Relations Act (1935, as amended in 1947 by the Labor Management Relations Act),(fn6) both of which require employers and employees covered thereby to engage in the collective bargaining process.
While none of the provisions of these statutes are applicable to local governmental units, the requirements for bargaining established by them provide the framework within which nearly all collective bargaining, either in the private sector or in the public sector, is conducted. Both these statutes establish four elements essential to bargaining on a collective basis.
An "appropriate bargaining unit" consists of a group of employees whose skills, job functions, supervision and other employment conditions are sufficiently similar so that the employees, as a group, may be said to possess sufficient common interests to render bargaining over their wages and conditions of employment on a single group basis appropriate.(fn7) The bargaining unit, in any particular instance, may either be agreed upon by the parties or designated by some agency given the authority to do so, such as the National Labor Relations Board ("NLRB"), the National Mediation Board or the Director of the Colorado Division of Labor ("Director").(fn8)
The voluntary designation of an "exclusive bargaining agent" by a majority of the employees within the appropriate unit may be given in any of several ways. These include an officially conducted election by some proper federal or state agency,(fn9) an informal poll conducted by the employer, or by signatures of the employees upon written authorizations.(fn10)
Two factors relating to this concept of an "exclusive bargaining agent" must be emphasized. First, in the absence of such a proper designation of an agent by a majority of the employees, no labor organization has any authority to act on the employees' behalf and, at least under the law applicable to private employers, it is improper for the employer to enter into a bargaining relationship with any such organization.(fn11)
Equal imposition upon both the employer and the employees' bargaining agent of the obligation to bargain in good faith in an attempt to reach agreement upon the employees' wages, hours and other conditions of employment includes no requirement that either party agree to any proposal made by the other, in the presence of good faith objections to that proposal.(fn13) The obligation imposed is only to "meet at reasonable times and confer in good faith" with the other party in an attempt to reach agreement.(fn14) If agreement is reached between them, however, both are under an obligation to reduce that agreement to writing, upon request by the other.(fn15)
The end result of bargaining is a collective bargaining agreement. If agreement between the parties is reached, that agreement is embodied within a written instrument---a contract. While some substantive rules applicable to such contracts may vary from common law or statutory rules applicable to commercial agreements, their terms are nevertheless enforceable through either the state or federal courts to the same extent that any commercial agreement would be enforceable.(fn16)
It is within the context of this "system" for collective bargaining that substantially all bargaining between employers and employees in the private sector of the economy is being conducted, and, indeed, has been conducted for a period of forty years and more. Both private employers and unions representing private employees are well familiar with the concepts and requirements involved in this process. Consequently, when the demand is made by a labor organization for a local governmental employer to engage in "collective bargaining" with it as the representative of certain of that employer's employees, essentially the demand is that this same system be adopted.
With the exception of towns and cities organized pursuant to the provisions of Article XX of the Colorado Constitution, which are granted plenary powers over matters purely of a "local and municipal" nature,(fn17) it is generally true that local units of government in Colorado are statutory creations and possess only those limited powers expressly, or by necessary implication, granted to them by the Colorado General Assembly. However, with the exceptions noted above,(fn18) there is no statute by which the General Assembly has required, authorized, or prohibited collective bargaining by local governments in order to establish the wages and working conditions for their employees.
Nevertheless, substantially all local governmental units are considered to be bodies corporate and are given the powers, among others, to engage employees and to establish their duties and compensation.(fn19) These powers are exercisable by the local government's governing body, be that body a town or city council or a...
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