Right to Work and the Colorado Labor Peace Act: How Politics Trumped Policy
Hogler, Raymond L., Labor Law Journal
In early 2007, the Colorado legislature passed a bill to modify Colorado's Labor Peace Act (the CLPA).1 This statute contains a feature found nowhere else in American labor law. It requires that if a union wins certification under the federal National Labor Relations Act, the union must also prevail in a state secret ballot election before it can legally propose a union security clause in the collective bargaining agreement. The voting requirement is unusual in that it requires at least a three-quarters majority of eligible voters in the bargaining unit. The proposed modification, HB 1072, would have eliminated the second election and moved Colorado to the status of a union security state rather than a "modified" right to work state.
Business groups in the state mobilized an intense political campaign against the bill. After passage in the Colorado House, the legislation moved to the Senate where management representatives testified at length against the bill. They put forward two major arguments against HB1072. The first argument focused on the rights of individuals to be protected from union domination, and the second asserted that Colorado's economic environment would suffer severe consequences as a result of the change. Those arguments failed to persuade Senate legislators, who voted in favor of the bill.
Business lobbyists then turned their attention to the newly-elected Democratic Governor, Bill Ritter. Most analysts assumed that Ritter would sign the law because he had received strong support from organized labor during his campaign and had indicated that the change would be acceptable.2 Surprisingly, however, Ritter exercised his veto power to kill the legislation. While he agreed with the substance of HR 1072, Ritter said in his veto message that the process by which the bill had been moved through the General Assembly was too politicized and excluded affected groups from full participation in debate and discussion.3
This article examines the event from the perspective of right to work laws generally and as an exemplary case study of ideology and symbolism as they impact American workers. Right to work laws frustrate, rather than protect, the interests of workers in their collective well-being, and there is no credible evidence to support the claim that union security negatively affects a state's economic development. What the Colorado experience demonstrates, with remarkable clarity, is that rhetoric, power, and partisanship continue to dominate labor policy in this country. That fact has profound implications for the organized labor movement. It suggests that any attempt to create a more favorable legal climate for organizing will encounter massive resistance from a cohesive political bloc possessing vast resources and a singular focus. Despite political support for pro-labor laws, such as the current Employee Free Choice Act, those laws will not be enacted.
BACKGROUND OF THE CLPA
The National Labor Relations (Wagner) Act of 1935 revolutionized the American law of industrial relations. It repudiated a century of common law and constitutional doctrine that articulated the primacy of "freedom of contract" over the collective or legislative rights of labor.4 Because the Supreme Court had regularly eviscerated any state or federal legislation enacted before the Wagner Act, employers believed that the statute was an unconstitutional exertion of federal power and ignored its mandate in favor of collective bargaining. Workers, regardless, engaged in a historic undertaking to unionize their workplaces, and with the formation of the Congress of Industrial Organizations in 1936, labor rapidly organized the major industrial sectors of the economy.5 The U.S. Supreme Court, in the 1937 landmark decision in Jones & Laughlin Steel Corp. v. NLRB,6 upheld the constitutionality of the Wagner Act, and the modern labor movement was established.
Reaction to these developments from business groups was swift and virulent. …