Colorado Gov. Bill Ritter’s executive order granting conditional collective bargaining rights to state employees has produced at least one unintended major benefit: It has belatedly focused public attention on a confusing set of laws and court decisions that govern the rights of public employees to organize and bargain collectively.
Ritter’s order, of course, does nothing to improve the landscape — and if allowed to stand, will further muddle the issue. Thanks to a narrow 1992 Colorado Supreme Court decision, it is already quite tangled. The court in that year held that government employees had a qualified right to strike, a right essentially identical to that of private workers.
That decision was a shocker, since it was based on a statute passed in 1915. In the 77 years between the passage of that law and 1992, the state’s appellate courts hadn’t said a word about the rights of public employees to strike. In fact, it was widely recognized that under the common law, government workers didn’t have the right to strike. It wasn’t until the 1970s that some states began to write legislation specifically granting rights to state employees.
Still, the four-member Colorado court majority found that the definitions in the 1915 law covered government workers and therefore must have granted those workers a right to strike.
A court minority pointed out that it was impossible to believe that a Colorado legislature in 1915 could have addressed an issue that didn’t even show up on the national radar until the 1970s.
The dissenting justices also pointed out that public employees are specifically not included in the state’s major labor law passed in 1943. And it was notable that Colorado lawmakers have never dealt with such issues as whether police and firefighters or prison guards may strike or any of the many other issues created when government workers walk off their jobs.
Whatever the defects in the court’s 1992 ruling, the state is stuck with it. And that raises a very important issue.
Ritter’s order declares that any state employee joining a “partnership” must give up the right to strike as a condition of their membership.
Can the governor compel or invite a state worker to give up a right which the Colorado Supreme Court insists was granted by a statute written almost a century ago?
Attorney General John Suthers is currently studying this issue. If it turns out the governor has no such power, it might prove to be a show-stopper for the overall scheme he has outlined.
Whatever the results of Suthers’ investigation, there is already ample basis on which to object to Ritter’s order. Writing labor law is a quintessential legislative function. The law books are filled with hundreds of pages of laws governing labor and industry. The governor’s order runs to eight pages and covers about 32,000 employees and leaves unanswered hundreds of questions typically addressed in the legislative process.
Sadly, it seems the Democrats who control the legislature are primarily focused on protecting Ritter’s order and reputation and the Republicans are probably too weak to overturn the order directly.
Should this judgment prove correct, the confusion that began almost a century ago, greatly compounded by the Supreme Court, will worsen with the governor’s order . . . the everlasting detriment of just about everyone except the band of labor leaders who helped the governor create this mess.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff. His column appears twice a month.
