BY RAY HOGLER

Teachers from various state school districts rallied in Denver on April 26-27, 2108, to demand increases in pay and benefits. Most affected districts chose to cancel classes on those days rather than attempting to cope with the walkouts. In Fort Collins, Poudre School District Superintendent Sandra Smyser declared that “teachers’ actions are a logical result of underfunding.” Smyser added that she supports teachers who used paid time off to lobby at the Capitol.[1]

Conservative legislators immediately jumped into the fray, proposing legislation to outlaw strikes by public employees and impose a range of penalties on violators. Two Republican legislators, Senator Bob Gardner and Representative Paul Lundeen, both from El Paso County, acted swiftly to deal with the menace of striking teachers. They introduced SB 18-264, which provides for fines, imprisonment, and loss of employment for employees engaged in a work stoppage. According to the official summary of the legislation:

The bill prohibits public school teachers and teacher organizations from directly or indirectly inducing, instigating, encouraging, authorizing, ratifying, or participating in a strike against any public school employer. Public school employers are prohibited from consenting to or condoning a strike and from paying a public school teacher for any day during which the public school teacher participates in a strike.

The legislators’ zeal to criminalize public workers’ collective action demonstrates not only a tenuous grasp of political reality and constitutional doctrine, but also a lamentable ignorance of labor management relations in this state.  Their proposals would eliminate important workers’ rights in Colorado that have existed for more than a century.

Public Employees’ Collective Action. In its 1991 decision in Martin v. Montezuma-Cortez School District, the Colorado Supreme Court upheld the right of Cortez schoolteachers to strike for union recognition. The basis of the decision was the 1915 Industrial Disputes Act, enacted in response to the Ludlow Massacre of 1914. The Ludlow incident involved the deaths of women and children at a mining camp near Trinidad; following the incident, miners armed themselves and marched on the state government in Denver. Shortly afterward, the Twentieth General Assembly passed legislation that established procedures for dealing with labor conflict. Those laws remain in effect, including a right to petition the Colorado Department of Labor for intervention and a right to strike if the issues are not resolved.[2]

Given the background, one conclusion is that labor relations in Colorado remain embedded in a historical context that mitigates against radical change. Legislators in 2006 attempted to change the rules to legalize the compulsory payment of union dues. Despite a strong Democratic majority in the General Assembly, they failed to accomplish their goals when House Republicans defeated efforts to repeal the Colorado Labor Peace Act’s right to work provisions.[3]  Again in 2008, Colorado citizens voted down a ballot initiative funded by a member of the Coors dynasty to strengthen right to work in Colorado.[4] Obviously, new approaches are needed to address an old issue.

Solving the Problem. Teacher strikes are difficult to deal with because they are unique in terms of employment. In the typical labor market setting, strikers lose wages during a strike and the pay is gone for good because the labor opportunity disappears. School districts, in contrast, have flexibility in the calendar to make up for lost instructional days by adding classes at the end of the school year. Consequently, the disciplinary effects of market forces do not apply to teachers’ work stoppages. Colorado faces an additional problem in that the legislative bodies may be constrained by the so-called “Tabor” limitations on tax increases to fund budget requirements.[5]

A simple solution is to install a regime of compulsory fact-finding in educational collective bargaining followed by economic and political consequences for the parties’ recalcitrance (the “Referendum Model”).[6] Under this proposal, all impasses in negotiations would be resolved by a process of mediation, which, if unsuccessful, would proceed to impartial fact-finding and a proposed settlement of the dispute.

After fact-finding, the parties would be given a short period within which to accept or reject the fact finder’s recommendations. If the school board rejected the recommendations, then teachers legally could engage in a protected strike. However, if the union rejected the recommendations, the impasse would be submitted to a referendum election in the school district, with the union paying the cost of the election. Voters would choose between the fact finder’s recommendation and the union’s proposal. In the event both parties rejected the recommendations, the referendum election would be held, with the costs of the election shared between the parties. Voters could choose either the union’s or the school board’s final offer at the time of the impasse.

The Referendum Model offers one option to the distorted, disruptive, and legally contentious work actions now taking place in Colorado and several other states. It would give citizens a meaningful voice in educational affairs and the distribution of tax dollars. Colorado now ranks below the U.S. median in teacher pay.[7] If that situation is not acceptable to us, there should be a meaningful choice between unregulated work stoppages and the punitive oppositional tactics suggested by retrograde legislators such as Gardner and Lundeen. Our legislative process has been hamstrung by con artists (and ex-cons) like Douglas Bruce and his Tabor Amendment since the 1990s. It’s time to move forward with real change.

[1] Kelly Ragan, “PSD’s Sandra Smyser voices support, apologizes for tone of letter on teacher demonstrations,” Fort Collins Coloradoan, April 24, 2018, p. 1.

[2]Raymond Hogler, “Public Employee Strikes in Colorado: The Supreme Court Adopts a New Rule,” Colorado Lawyer, January 1992, pp. 1-12.

[3]Raymond Hogler and Steven Shulman, “The Law, Economics, and Politics of Right to Work: An Analysis of Colorado’s Labor Peace Act,” University of Colorado Law Review, vol. 70, No. 3 (Summer 1999), pp. 871-952

[4]Raymond Hogler, “The 2008 Defeat of Right to Work in Colorado: Is It the End of Section 14(b)?” Labor Law Journal, 60, No. 1 (Spring 2009), pp. 5-15.

[5]Kelly Ragan, “What comes after teachers march in Denver,” Fort Collins Coloradoan, April 28, 2018, p. 5A.

[6]Raymond Hogler, “Teachers, Unions, and Citizens: An Alternative Model for Collective Bargaining,” Education Week, Nov. 1986. Online: https://www.edweek.org/ew/articles/1986/11/12/teachers-unions-and-citizens-an-alternative-model.html.

[7]Madeline Will, “See How Your State’s Average Teacher Salary Compares,” Education Week, April 24, 2018. Online: http://blogs.edweek.org/edweek/teacherbeat/2018/04/teacher_pay_2017.html?intc=main-mpsmvs.

Guest blogger Ray Hogler is a professor of management at Colorado State University and an officer of the Colorado state AAUP conference, serving both as vice president for legislative matters and chair of the Committee for the Protection of Faculty Rights.