Union Organizing in a Government Setting
| Jurisdiction | Colorado,United States,Federal |
| Citation | Vol. 38 No. 10 Pg. 65 |
| Pages | 65 |
| Publication year | 2009 |
2009, October, Pg. 65. Union Organizing in a Government Setting
October 2009
Vol. 38, No. 10 [Page 65]
About the Authors
Madeline J. Meacham is Chief Deputy County Attorney for the Boulder County Attorney's Office. She advises the county in employment and labor relations matters, and represents the county in defense of employment discrimination, First Amendment and civil rights claims, and administrative appeals-mmeacham@bouldercounty.org. Patrick R. Scully is a member of Sherman and Howard LLC's labor and employment department. His practice focuses on representation of employers in all aspects of labor relations and labor-related litigation. Scully also defends employers in employment discrimination claims and various employment law matters-pscully@shermanhoward.com. The authors acknowledge the assistance of Caroline Williams, a paralegal in the Boulder County Attorney's Office, and Elizabeth Chilcoat, an associate at Sherman and Howard LLC.
Public sector union organizing is heating up in Colorado. This article explores the legal boundaries of union activity, recent developments in public sector organizing, and legislative initiatives.
In Colorado, the National Labor Relations Act(fn1) (NLRA) and the Colorado Labor Peace Act(fn2) secure the rights of most private employees to organize and join unions, and the right to collectively bargain with their employers about their terms and conditions of employment. Unlike their peers in the private sector, public employees enjoy neither organizational rights nor collective bargaining rights under the NLRA or the Colorado Labor Peace Act. The NLRA specifically excludes public employees from its coverage. The Act does not protect employees of "the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision, thereof. . . . "(fn3) The Colorado Labor Peace Act similarly exempts employees of the state or any political subdivision, unless the government entity operates a mass transit system.(fn4)
For public employees, however, the quest for union rights does not end with the NLRA or the Colorado Labor Peace Act. The First Amendment to the U.S. Constitution(fn5) generally secures the right of public employees to associate with labor organizations, and state and local governments can choose to authorize collective bargaining with public employee unions.(fn6) In 2007 and 2008, Colorado experienced considerable executive and legislative activity on the subjects of union organizing and bargaining in the public sector. These issues will continue to be addressed at the local, state, and national level in the future. Federal and state law provides the framework for a general discussion of these efforts and the prospect of continuation of the executive and legislative activity dealing with union organizing and collective bargaining.
A Public Employee's Constitutional Right to Organize
The freedom of association and the freedom of speech guaranteed by the First Amendment protect the rights of most public employees to engage in organizing activities. The freedom of association includes the right to belong to a union.(fn7) As a result, a public employer may not constitutionally discharge or dismiss an employee for accepting union membership.(fn8) Furthermore, a public employee's right to free speech and expression protect the employee's union activity.(fn9) The First Amendment's protections of public employees' organizational rights are not plenary.
In Key v. Rutherford,(fn10) the Tenth Circuit Court ruled that the right to freely associate does not protect a public employee's organizational rights if there is "a substantial state interest" in limiting the individual's right and "the limits are narrowly drawn to avoid unnecessary abridgement of such rights." For example, the government's substantial interest in efficient operations supports a rule prohibiting managers and supervisory personnel from joining the same union as non-management personnel.(fn11) Similarly, the state's legitimate penological interests may justify prohibiting inmate-to-inmate union solicitations and union meetings, even if the rule does not also prohibit union membership.(fn12)
Limitations of Free Speech and the Right to Organize
Whether the First Amendment's guarantee of free speech preserves a public employee's organizational activities is a complicated question, the answer to which turns on the character of the government property on which the speech occurs.(fn13) For purposes of free speech analysis, there exist three types of government property that determine whether the government may limit speech: traditional public forums, designated public forums, and nonpublic forums.(fn14)
Traditional public forum. A traditional public forum is a place that "by long tradition or by government fiat [has] been devoted to assembly and debate."(fn15) Public sidewalks, parks, and streets are "[q]uintessential traditional public fora."(fn16) In traditional public forums, the government may not impose content-based restrictions on speech.(fn17) The government or a political subdivision may, however, limit speech-including speech related to unions-with content-neutral regulations that can withstand strict scrutiny.(fn18)
Designated public forum. A designated public forum is any "public property which the State has opened for use by the public as a place for expressive activity."(fn19) Examples of designated public forums include university meeting facilities, school board meetings, and municipal theaters.(fn20) The U.S. Supreme Court ruled in Perry Education Association v. Perry Local Educators' Association:
Although a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum.(fn21)
Nonpublic forum. A nonpublic forum is one that "is not by tradition or by designation a forum for public communication."(fn22) Prisons,(fn23) military bases,(fn24) school mail facilities(fn25) and the covered walkway at the Denver Center for the Performing Arts complex(fn26) are examples of nonpublic forums. In contrast to the government's powers to limit speech in traditional and designated public forums, the government may restrict speech in nonpublic forums provided the restriction is reasonable and "not an effort to suppress expression merely because public officials oppose the speaker's view."(fn27)
Even if a forum is generally nonpublic, the government may create a limited public forum by opening the facility to certain types of speech and expression. For example, in Hawkins v. City and County of Denver,(fn28) the Tenth Circuit recognized that the covered walkway at the Denver Center for the Performing Arts complex was a limited public forum, because Denver permitted patrons of the complex to congregate there to discuss a variety of issues. The Center also permitted tenants of the complex to advertise in the space. However, even though...
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