Martin v. Montezuma-Cortez School District Re-1

Justice ERICKSON

dissenting:

The threshold question before us is whether the 1981 strike by public school teachers in the Montezuma-Cortez school district was illegal. The underlying issue is whether public employees in Colorado have the right to strike.

I disagree with the majority’s central holding that public-sector employees have a qualified right to strike subject to explicit executive and judicial controls. I dissent because I believe that the common-law rule prohibiting strikes by public employees controls the right-to-strike issue. Accordingly, I would affirm the court of appeals decision that the strike was illegal. Martin v. Montezuma-Cortez Sch. Dist. RE-1, 809 P.2d 1010 (Colo.Ct.App.1990).

Under the common law, public employee strikes were prohibited. See Anchorage Educ. Ass’n v. Anchorage Sch. Dist., 648 P.2d 993, 995-96 (Alaska 1982) (cataloguing decisions prohibiting public employees from striking under the common law absent explicit statutory consent); James Duff, Jr., Annotation, Labor Law: Right of Public Employees to Strike or Engage in Work Stoppage, 37 A.L.R.3d 1147, 1156 (1971) (recognizing common-law rule denying public employees the right to strike).

Colorado has not judicially abrogated the common-law rule prohibiting public employee strikes. The dispositive issue before us is whether the General Assembly has legislatively revoked or changed the common-law rule.

In 1889, the General Assembly enacted section 8-2-101, 3B C.R.S. (1986).1 On its face, this section did not grant employees an affirmative right to strike.2 Rather, section 8-2-101 was intended to eliminate the threat of criminal conspiracy in labor disputes.3 The majority does not contend that section 8-2-101 established a statutory right to strike for public employees.

Instead, the majority holds that the General Assembly abrogated the common-law rule in 1915 with the adoption of what the majority terms the “Industrial Relations Act.” The majority examines the language of the “Industrial Relations Act” and concludes from the definitions of employee4 *260and employer5 and the grant of power to the Colorado Industrial Commission6 that the act “[b]y its definitions ... grantfed] the right to strike to all employees, private and public_” Maj. op. at 247. I do not believe that the statute created such an implied right to strike for public employees.

In my view, the statute enacted by the General Assembly in 1915 did not abrogate or change the common-law rule prohibiting strikes by public employees. I disagree with the majority’s analysis of the 1915 statute and would hold that the plain language does not establish a right to strike for public employees.

If the language of the statute is clear and unambiguous, there is no need to resort to interpretive rules of statutory construction. Bloomer v. Board of County Comm’rs, 799 P.2d 942, 944 (Colo.1990). A court should look first to the plain language of the statute and the words used should be given effect according to their plain and ordinary meaning. Farmer’s Group, Inc. v. Williams, 805 P.2d 419, 422 (Colo.1991).

In my view, the original name of the act, the “Industrial Commission of Colorado” Act, provides a more accurate reference for the statute enacted in 1915.7 The plain language of the Industrial Commission Act did not grant public employees the right to strike. The statute did not affirmatively grant the right to strike or to engage in “concerted activities.”8

Moreover, it was not the purpose of the General Assembly to create a right to strike for public employees. Rather, the sole purpose of the General Assembly in enacting the 1915 statute was to establish the Colorado Industrial Commission.9

*261If the majority’s analysis is correct, the Industrial Commission Act legalized all public employee strikes. Public employees include not just school teachers and janitors, but also firemen and policemen. I do not believe that the General Assembly intended to legalize strikes for all public employees in direct contradiction to the established common-law rule, absent express legislative direction. Anchorage Educ. Ass’n v. Anchorage Sch. Dist., 648 P.2d 993, 995-96 (Alaska 1982) (finding no jurisdiction permitting public employees to legally strike absent explicit statutory consent). Because express legislative direction is absent, I would not find an implied right to strike for public employees within the confines of the statute establishing the Colorado Industrial Commission.

Accordingly, I would hold that court of appeals correctly found that the strike was illegal under the common-law prohibition of strikes by public employees. In my view, the General Assembly’s enactment of the Industrial Commission Act in 1915 did not create an implied right to strike for public employees.

I am authorized to say that Justice LOHR joins in this dissent.

.Section 8-2-101 provides:

Combination of employees of peaceable objects lawful. It is not unlawful for any two or more persons to unite, combine, or agree in any manner, to advise or encourage, by peaceable means, any persons to enter into any combination in relation to entering into or remaining in the employment of any person or corporation, or in relation to the amount of wages or compensation to be paid for labor, or for the purpose of regulating the hours of labor, or for the procuring of fair and just treatment from employers, or for the purpose of aiding and protecting their welfare and interests in laws made in pursuance thereof. This section shall not be so construed as to permit two or more persons, by threats of either bodily or financial injury, continuing in such employment as he may see fit, or to boycott or intimidate any employer of labor.

. Section 8-2-101 does not mention the term "strike” or “concerted action.” The purpose of this section was to make the acts of organization and combination lawful.

. Criminal conspiracy was one of the main weapons management used against unions in the late nineteenth century. Bureau of Labor Statistics of the State of Colorado, First Biennial Report, at 43-53 (1887-1888). Section 8-2-101 eliminated this obstacle to union activities.

. The definition of employee included, "every person in the service of the state or of any county, city, town, irrigation or school district therein, or of any public institution or administrative board thereof_” Ch. 180, sec. 4(d), 1915 Colo.Sess.Laws 562, 563.

. The definition of employer included, “[t]he state, and each county, city, town, irrigation and school district therein, and all public institutions and administrative boards thereof.” Ch. 180, sec. 4(c)I, 1915 Colo.Sess.Laws 562, 563.

. The commission was granted the power "to promote the voluntary arbitration, mediation and conciliation of disputes between employers and employees, and to avoid the necessity of resorting to strikes, lockouts, boycotts, blacklists, discrimination and legal proceedings in matters of employment.” Ch. 180, sec. 27, 1915 Colo.Sess.Laws 562, 577.

. Chapter 180 was one of a series of acts entitled "Workmen’s Compensation Acts.” Chapter 179 contained no subtitle. The stated purpose of this act was

[tjo determine and define the relations between employer and employee, providing for safe and hygienic conditions and for compensation for accidental injury to or death of employees; for insurance of such compensation; establishing an industrial commission, prescribing its powers, and providing for review of its proceedings; making an appropriation to carry out the provisions of this act; providing penalties for violation of this act; repealing all acts and parts of acts in conflict with this act, and declaring this act to be necessary for the immediate preservation of public peace, health, and safety.

Ch. 179, 1915 Colo.Sess.Laws 515.

Chapter 180 was subtitled "Industrial Commission of Colorado.” The stated purpose of Chapter 180 duplicated the language of Chapter 179. See Ch. 180, 1915 Colo.Sess.Laws 562. The substance of Chapter 180 and subsequent amendments is currently codified at section 8-1-101, 3B C.R.S. (1986) to section 8-1-151, 3B C.R.S. (1986), and is entitled, "Division of Labor — Industrial Claim Appeal Office.”

. Cf. § 8-3-106, 3B C.R.S. (1986) (specifically granting private employees an affirmative right to engage in “concerted activities” under the Labor Peace Act); 29 U.S.C. § 157 (1988) (providing a federal right to "engage in concerted activities” under the National Labor Relations Act).

. In People v. United Mine Workers, 70 Colo. 269, 201 P. 54 (1921), we examined the legislative history of these acts and stated:

It would seem that House Bill 177 and Senate Bill 99 were identical, that each was cut in two, that which was cut from one remaining in the other. The latter emerged as chapter 179, providing workmen’s compensation, and the former as chapter 180 of the acts of 1915, establishing an industrial commission to administer and enforce the other, each with amendments of more or less importance, but none which altered the original purpose. That was and continued to be to provide for workmen’s compensation and an industrial commission.
That the purpose of the General Assembly in passing the two bills was the purpose of the original bill there can be no doubt. What would have been the effect if one had passed and the other had failed, we are not now called upon to say. It is enough to say that, after all the amendments, the final passage of the two amended bills effected the purpose of the original.
Id. at 273-74, 201 P. at 56. In United Mine Workers and the subsequent cases analyzing the 1915 statute, we have never suggested that the *261General Assembly intended to create a right to strike for public employees.
The primary purpose of the 1915 statute was, as the name indicates, to establish the Colorado Industrial Commission. See John A. Criswell, Collective Bargaining for Local Public Employees in Colorado, 8 Colo.Law. 2123, 2138 (1979) (noting that the statute’s purpose was "to provide machinery for the peaceful resolution. of all labor disputes by establishing a process which today would be described as 'factfinding' ”). Creating a right to strike for public employees is not mentioned in the paragraph describing the act’s purpose.