Rose MARTIN, Roberta Keck, Judith Gonzales, Ben Tolin, Paul McDonald, Robert Townsend, John Dahm, Maureen Dewey, Cheryl Carmichael, Lycinda Conger, Donna Koontz, Carol Erner, Sally Wilson, Barbara McGuire, Kathleen Cellar, Margaret Miller, Kenneth Hosmer, Frank Mascarenas, Ronald Maas, Daniel Fulks, Bruce Baylor, Jeanne Barlow, Deborah Keel, Paul Crawford, Robert Erner, Bill Cooper, Linda Allar, Kenneth Carmichael, Georgia Patcheck, Carole McWilliams, Anna Smith, Sharon Wilson, Nila Jo Schwindt, Marilyn Kirkwood, Robert Wilson, Ruby Jean Barber, Karel Miller, Janice Harding, Norma Anderson, Robert Keeler, Kim “Slim” McWilliams, and Shirley Russel, Petitioners, v. MONTEZUMA-CORTEZ SCHOOL DISTRICT RE-1, Bruce McAfee, Harold Gresh, Janice Hutchinson, Robert Green, Steve Chappel, Robert Cruzan, and F.K. Howerton, Respondents. MONTEZUMA-CORTEZ SCHOOL DISTRICT RE-1, Petitioner/Cross-Respondent, v. MONTEZUMA-CORTEZ EDUCATION ASSOCIATION, San Juan Basin Uniserv, a Colorado corporation, Colorado Education Association, a Colorado corporation, Rose M. Martin, Roberta J. Keck, Judith Gonzales, Roberta Keeler, Kim “Slim” McWilliams, John Dahm, James V. Lang, and James E. Mills, Respondents/Cross–Petitioners.
Nos. 90SC562, 90SC568.
Supreme Court of Colorado, En Banc.
Oct. 26, 1992.
Rehearing Denied Dec. 1, 1992.
841 P.2d 237
Kenneth A. DeLay, Fred C. Kuhlwilm, Miller & Delay, P.C., Westminster, for respondents in No. 90SC562.
Fred C. Kuhlwilm, Kenneth A. DeLay, Margaret M. Sickel, Miller & Delay, P.C., Westminster, for petitioner, cross-respondent in No. 90SC568.
Lauren B. Kingsbery, Denver, for amicus curiae Colo. Ass‘n of School Boards.
Justice MULLARKEY delivered the Opinion of the Court.
We granted certiorari to review the court of appeals’ opinion in the consolidated cases of Martin v. Montezuma-Cortez School District RE-1 and Montezuma-Cortez School District RE-1 v. Montezuma-Cortez Education Association, 809 P.2d 1010 (Colo.App.1990). The court of appeals held: (1) that a strike by teachers of the school district was illegal; (2) that despite the strike‘s unlawfulness the teachers were not liable for tortious interference with the contracts between the school district and other teachers; (3) that the school district‘s termination of the striking teachers’ employments did not violate the teachers’ due process rights; and (4) that the school district‘s failure to follow the procedures of the Teacher Employment, Dismiss-
I
On January 26, 1981, Rose Martin and approximately half of the teachers employed by the Montezuma-Cortez School District RE-1 went on strike against the school district. Martin and the other teachers were members of the Montezuma-Cortez Education Association (MCEA). The teachers’ stated purpose for striking was to compel the school district to recognize the MCEA as the exclusive bargaining agent for the teachers and to have the school district negotiate a master contract with the MCEA. The underlying motive for the pursuit of a master contract was to address or to improve teacher salaries, the quantum of hours of service required by the school district, and other working conditions such as class size and textbook purchases. At the time of the strike, most of the teachers were under individual contracts for the 1980-81 school year. Written contracts between teachers and school districts were required by
In the months preceding the strike, the school district held several meetings and made several proposals to the teachers but consistently refused to recognize, or to negotiate with, the MCEA. The proposals made by the school district, falling short of recognition of the MCEA, were unacceptable to the teachers. The school district and the teachers of the MCEA thus came to an impasse in their dispute.
Before the strike, on January 6, 1981, counsel for the MCEA, pursuant to section
Soon after the first day of the strike, the school district sent Martin and the other striking teachers written directives demanding that they return to work and informing them that failure to do so might be considered an “abandonment” of their contracts. By February 24, 1981, half of the striking teachers returned to work. On March 6, 1981, the school district notified the teachers that hearings would be held by the school board in order to determine whether any of the individual striking teachers wished to return to work, and those ad hoc hearings commenced shortly thereafter. The striking teachers communicated to the school district their position that the hearings must conform to the requirements of the Teacher Tenure Act. The teachers also specifically denied that they had the intent to abandon their employment contracts. Only one striking teacher attended the hearings and returned to work. The other striking teachers did not attend. The school district, having determined that the teachers “voluntarily terminated” their employment and “abandoned” their contracts by striking, discharged the teachers on April 17, 1981.
To summarize the legal proceedings below, on the first day of the strike, January 26, 1981, the school district filed an action in the district court seeking to enjoin the strike and to obtain damages resulting from the strike. The trial court issued a preliminary injunction on February 2, 1981, finding the strike illegal under the common law and ordering the teachers to cease picketing and other strike-related activities. The trial court, however, did not order the teachers back to work. On June 26, 1981, the MCEA filed an action in the district court contending that the school district violated the teachers’ rights under the Teacher Tenure Act and seeking damages for the unlawful dismissal.
In late 1984, the district court granted a pre-trial motion by the teachers, and ruled that the strike was legal under
The school district appealed the summary judgment on its tort claims, arguing the illegality of the strike, and the teachers appealed the judgment entered upon the jury verdicts. The court of appeals noted that “[u]nder the common law, strikes by public employees are illegal” and concluded that the trial court erred in deciding that
As to the teachers’ claims, the court of appeals found that the trial court‘s denial of the school district‘s motion to dismiss for lack of subject matter jurisdiction was also proper. Id. The court of appeals also ruled that the teachers’ due process rights were not violated by the ad hoc hearings held by the school district after the strike to determine each teacher‘s employment status with the school district. Id. at 1014-15. The court of appeals also ruled that while “the teachers were entitled to a directed verdict that there had been a violation of the Tenure Act in their termination,” that violation was harmless error. Id. at 1015. The school district petitioned this court for writ of certiorari and the teachers cross-petitioned for writ of certiorari.
II
The threshold question presented is whether public employees in Colorado have the right to strike. Before today, the question has not been expressly presented to a Colorado appellate court.2 We hold that, under the relevant statutes, employees in the public sector have a qualified right to strike subject to explicit executive and judicial controls. Before turning to the stat-
A
The original version of the controlling statutes was known as the Industrial Relations Act and was born of the labor strife which nearly destroyed Colorado in the last decade of the nineteenth century and in the first decades of the twentieth.3 The situation in Colorado approached “a condition of absolute prostration of government and of actual revolution.”4 Private “business [too] for long periods had lain prostrate, [and] much property had been destroyed.”5 Anarchy loomed when the state militia attacked Ludlow, “a tent colony established by striking miners employed by the Colorado Fuel & Iron Co.,” on April 20, 1914. “[E]leven children and two women were killed.”6
The intense labor strife, culminating in the violence at Ludlow, was the catalyst of the state‘s equally remarkable legislative response.7 The legislature met in special session and appointed a joint legislative committee to examine labor conditions and the governmental response to labor disputes. Senate Joint Resolution No. 6, 1914 Colo.Sess.Laws, Extraordinary Session at 17. The committee conducted an intensive investigation and reported to the General Assembly with various recommendations for legislative action. See Senate Journal, Twentieth General Assembly 1915, pt. 2 at 61-66. The committee particularly identified the need to empower the Governor to act promptly to prevent strikes:
The Governor, as the chief executive, is charged with the duty of preserving the peace of the State, but the State at the present time has no machinery through which he can act at the inception of a difficulty....
It has been true in general of strikes, including our recent coal strikes, that the bitterness engendered by incidents arising after the declaring of the strike, has almost overshadowed the original grievances. For this reason, settlement of differences is much easier before than after the declaring of a strike, and it is for this reason that arbitration of some nature is especially valuable.
Senate Journal at 64. Prodded by Governor Carlson,8 the victor in the elections of 1914, the General Assembly established the state‘s first workers’ compensation plan and a new public authority, then called the industrial commission, to supervise labor relations. With the first workers’ compen-
For our purposes here, the Industrial Relations Act, which created and empowered the industrial commission, is the most significant. The original Industrial Relations Act provided the qualified right to strike by all employees, both private and public. In the original act, the legislature clearly defined an “employer” to mean and include not only private employers but also:
The state, and each county, city, town, irrigation and school district therein, and all public institutions and administrative boards thereof.
The term “employee” was given a correspondingly clear definition. The term included not only private employees but also:
[E]very 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 ... under any contract of hire, express or implied....
Ch. 180, sec. 4, 1915 Colo.Sess.Laws 562, 563 (emphasis added). Public employees, including the employees of school districts, thus were expressly included in the provisions of the statute.9 When the General Assembly intended to exclude an employer or employee, the exclusion was also ex-
The Industrial Relations Act conferred upon the industrial commission the power to inquire into the rise and development of employer and employee associations, and “into the extent and results of methods of collective bargaining.” Ch. 180, sec. 26, 1915 Colo.Sess.Laws 576. The commission also 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, discriminations and legal proceedings in matters of employment.
Id. sec. 27, at 577. Employers and employees were required to give notice to the industrial commission before engaging in a “lockout or strike, or a suspension or discontinuation of work or employment” on account of a dispute over compensation or hours. Moreover, the Industrial Relations Act made it “unlawful for any employer to declare or cause a lockout, or for any employee to go on strike, on account of any dispute prior to or during an investigation, hearing, or arbitration of such dispute by the commission....” Id. secs. 29, 30, at 578. After such dispute “has been duly investigated, heard, or arbitrated,” employers and employees were free to lockout or to strike, respectively. Id. sec. 30, at 578-79.
In 1921, the General Assembly amended the Industrial Relations Act. The definition of employer remained substantially the same, while the definition of employee was simplified to mean “every person in the service of an ‘employer’ as herein defined.” Ch. 252, sec. 4, 1921 Colo.Sess.Laws 827, 829. The provisions concerning the rights to lockout and to strike were also amended in 1921, but without derogating from those rights. Id. sec. 11, at 840. In addition, the 1921 amendments provided that the commission could file a petition in the district court setting forth any violation or threatened violation of the acts by any employer or employee, whereupon the district court
B
The substance of the Industrial Relations Act and of subsequent amendments is now codified in
The director is the director of the division of labor in the department of labor and employment. The transfer of regulatory powers away from the industrial commis-
8-1-103. Division of Labor—director — employees — qualifications — compensation—expenses. (1) There is hereby created a division of labor in the department of labor and employment. Pursuant to
8-1-108. Orders effective, when—validity presumed. (3) All orders of the division shall be valid and in force and prima facie reasonable and lawful until they are found otherwise in an action brought for that purpose, pursuant to the provisions of this article, or until revoked by the director.
8-1-111. Jurisdiction over employer and employee relation. The director is vested with the power and jurisdiction to have such supervision of every employment and place of employment in this state.... He is also vested with power and jurisdiction to administer all provisions of this article with respect to the relations between employer and employee and to do all other acts and things convenient and necessary to accomplish the purposes of this article.
8-1-114. Employers and employees to furnish information—penalty. (1) Upon request, every employer and employee shall furnish the division all information required by it to accomplish the purposes of this article....
8-1-122. Inquiries—scope—report. (1) The director shall inquire into ... existing relations between employers and employees; ... into the growth of associations of employers and wage earners and the effect of such associations upon the relations between employers and employees; into the extent and results of methods of collective bargaining; ... into methods of avoiding or adjusting labor disputes through peaceable and conciliatory mediation and negotiations....
8-1-123. Arbitration. The director shall do all in his power to promote the voluntary arbitration, mediation, and conciliation of disputes arising under an existing written agreement between employers and employees and to avoid the necessity of resorting to strikes, lockouts, boycotts, blacklists, discriminations, and legal proceedings in matters of employment....
8-1-125. Disputes — jurisdiction — notice of changes in wages or hours of labor—penalty. (1) The director has jurisdiction of every dispute between employer and employee affecting conditions of employment, or with respect to wages or hours, and such jurisdiction shall continue until after the final hearing of such dispute and the entry of the final award therein, or until said director shall enter an order disposing of or terminating such jurisdiction. The relation of the employer and employee shall continue uninterrupted by the dispute or anything arising out of the dispute until the final determination thereof by said director; and neither the employer nor any of the employees affected by any such dispute shall alter the conditions of employment with respect to wages or hours or any other condition of said employment; neither shall they, on account of such dispute, do or be concerned in doing directly or indirectly anything in the nature of a lockout or strike or suspension or discontinuance of work or employment.11
8-1-126. Lockouts and strikes unlawful, when. It is unlawful for any employer to declare or cause a lockout, or for any employee to go on strike, on account of any dispute prior to or during an investigation, hearing, or arbitration of such dispute by the director ... under the provisions of this article.... Nothing in this article shall be held to restrain any employer from declaring a lockout, or any employee from going on strike in respect to any dispute after the same has been duly investigated, heard, or arbitrated, under the provisions of this article.
8-1-128. Petition — writ — dissolution. The director of the division of labor, as petitioner, may file in the district court ... a verified petition against any employers, or employees, or both, as respondents, and setting forth any violation or threatened or attempted violation of any provisions of
8-1-129. Strikes and lockouts—penalties. (1) Any employer declaring or causing a lockout contrary to the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than one thousand dollars, or by imprisonment in the county jail for a term of not more than six months, or by both such fine and imprisonment. Each day or part of a day that such lockout exists shall constitute a separate offense under this section.
(2) Any employee who goes on strike contrary to the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than fifty dollars, or by imprisonment in the county jail for a term of not more than six months, or by both such fine and imprisonment. Each day or part of a day that the employee is on strike shall constitute a separate offense under this section.
8-1-130. Petition for Review of order—irregularities waived. The director has full power to hear and determine all questions within his jurisdiction, and his findings, award, and order issued thereon shall be final....
9 C.R.S. (1973). The foregoing are the substantive provisions of the Industrial Relations Act which are central to the resolution of the question as to whether public employees have the right to strike.
C
In construing a statutory scheme, a court may consider its history. Industrial Comm‘n v. Milka, 159 Colo. 114, 119, 410 P.2d 181, 183 (1966) (“It is basic to our system of jurisprudence that in the interpretation of a statute courts may refer to the history of the act.“). See also Carlisle v. Pullman P.C. Co., 8 Colo. 320, 327-28, 7 P. 164 (1885) (“Chief among the considerations to be weighed in the construction of a statute are the objects to be accomplished, the evils to be remedied, and the circumstances under which it was enacted.“). We have also held that a “legislative intent to change the meaning of statutes in the course of a general revision will not be inferred unless this intent is clearly and indubitably manifested.” Davis v. Conour, 178 Colo. 376, 382, 497 P.2d 1015, 1018 (1972).
“In interpreting a comprehensive legislative scheme, we must give meaning to all
Finally, “[t]hat the legislature has the power to define terms used by it and that statutory definitions control judicial interpretation cannot be doubted.” Industrial Comm‘n v. Northwestern Mut. Life Ins. Co., 103 Colo. 550, 556, 88 P.2d 560, 563 (1939). “The Legislature has a right” to “define various words, including employer and employee.” Industrial Comm‘n v. Continental Inv. Co., 78 Colo. 399, 403, 242 P. 49, 50 (1925). Only in the absence of express definitions will statutory terms be construed according to the various interpretive rules governing the construction of statutes. Moody v. Larsen, 802 P.2d 1169, 1171 (Colo.App.1990). Moreover, “[a]n exception not made by the Legislature cannot be read into the statute.” Karoly v. Industrial Comm‘n, 65 Colo. 239, 245, 176 P. 284, 286 (1918). Absent constitutional infirmity, it is not within the judicial power to exclude from a statute that which the legislature expressly includes.
Our review of materials documenting the enactment of the original Industrial Relations Act discloses little separate discussion of the legislative decision to include public employers and employees within the scope of the Act.12 Understandably, most of the attention was focused on the private sector, particularly on the mining industry. The early history of the implementation of the Industrial Relations Act is more helpful, revealing that the Act applied to public employers and employees from its inception. According to the reports issued by the first industrial commissions soon after the passage of the Industrial Relations Act, public employers and employees were subjected to the initial jurisdiction of the commission in order to defuse potential labor disputes.13 Thus, that the Industrial Relations Act was intended as a regulatory scheme comprehending both private and public employers and employees is corroborated by the early administrative practice under the Act.14
Besides what we can gather from the early history and administration of the Industrial Relations Act, the language of the Act speaks for itself. By its definitions, the Industrial Relations Act grants the right to strike to all employees, private and public, and concurrently places conditions on the exercise of that right. Thus, public employees must accept the possible intervention of state authorities in labor disputes with their public employers whenever the paramount interests of the Colorado
By choosing to treat public and private labor relations in the same manner, Colorado clearly departed from the general practice in other jurisdictions of dealing with the two spheres of labor relations differently.16 We are aware that the federal government and many states by statute have prohibited strikes by public employees.17 Colorado has declined to take that step.18 The legislature when it has spoken, in 1915 and subsequently, has regulated strikes by public employees. Furthermore, this court, when faced with legislative silence, has found an inherent right of public employees to engage in collective bargaining. Littleton Educ. Ass‘n v. Arapahoe County Sch. Dist., 191 Colo. 411, 553 P.2d 793 (1976). We note that teachers’ associations are not uncommon in Colorado, and that they have engaged in collective bargaining and have negotiated agreements with their respective school districts.19 Indeed, teacher strikes have occurred in the past and such strikes sometimes have been enjoined. Id. at 413-14, 553 P.2d at 795; Rockey v. School District #11, El Paso County, 32 Colo.App. 203, 508 P.2d 796 (1973).20
Reading the Industrial Relations Act with the express definitions of employer and employee in mind, we conclude that public employees have a qualified or conditional right to strike, as do private employees. Disputes in the public sector, particularly those leading to strikes, are subject to the authority of the director of the division of labor. The statutory conditions placed
The Industrial Relations Act unequivocally vests the director with jurisdiction over “every employment.”
Undoubtedly the chief purpose of the exercise of the director‘s jurisdiction under the Industrial Relations Act is to “avoid the necessity of resorting to strikes, lockouts, boycotts, blacklists, discriminations, and legal proceedings in matters of employment.”
Thus, the Industrial Relations Act guarantees that there is no absolute right to strike by public employees in Colorado.22 For so long as the director has jurisdiction of a labor dispute, several tiers of substantive and procedural conditions on the right to strike preclude the dangers otherwise inherent to an absolute right to strike. These conditions23 determine when public employees may exercise their right to strike. The Industrial Relations Act provides that once the director takes jurisdiction of a labor dispute, the status quo shall be maintained.
Once jurisdiction is taken, the director must promote the voluntary arbitration, mediation, or conciliation of the dispute. Id. See also Industrial Comm‘n v. People ex rel. Metz, 86 Colo. 377, 386-87, 281 P. 742, 745 (1929). The director has the power to gather information from the parties. This alone may serve to cool tempers and to open the way to conciliation. Here, the parties reached an impasse and the director declined to take jurisdiction on January 30, 1981, nunc pro tunc January 23, 1981. When the director terminated jurisdiction, the teachers were free to exer-
Finally, the exercise of jurisdiction by the director, or the decision not to exercise jurisdiction, is itself subject to the restraints of the electoral process. The director is subject to the oversight of the executive director of the Department of Labor and Employment.
D
Because the definitions of the Industrial Relations Act plainly encompass both pri-
Furthermore, if we were to adopt the school district‘s reading of section
The school district‘s further argument that the right to strike by public employees is tantamount to “trial by combat” is predicated on the school district‘s isolation of the right to strike by public employees from the regulatory framework of the Industrial Relations Act. An absolute right to strike by public employees, exempt from any supervision by a public authority charged with the protection of the public interest, certainly would raise grave concerns. However, as demonstrated, no such absolute right to strike is granted by the Industrial Relations Act. The right is qualified and may be exercised only in conformance with the controls established by the Industrial Relations Act.
Arguments invoking concepts of sovereignty and the control of the public purse also are advanced by the school district against the right of public employees to strike. These arguments are predicated on the classical distinction between the private and public sectors. Because the plain definitions in the Industrial Relations Act include public employers and their employ-
The argument against Colorado‘s approach is based on the theory that economic power is at the core of private sector labor relations but political power is at the core of public sector relations. While relative economic power can be reallocated or adjusted in a private sector dispute, political power, at least sovereign political power, cannot be similarly reallocated in a public sector dispute. According to this theory,
public sector strikes are intolerable because of their political, rather than their economic impact.... First, there are few market restraints controlling public sector strikes because the services of striking employees are essential. Second, the scarcity of these services will foster intense public pressure on civil officials to resolve a strike. Third, no other group in the relevant political environment possesses such an effective hand. Therefore, ... the cost of public sector strikes is unacceptably high since these strikes distort the normal functioning of the political process in public decision-making.28
A more empirical approach effectively rebuts the dichotomy between public and private employees. There are
effective market restraints on public employees, such as the loss of wages, the threat of replacement, and public concern over possible tax increases. Moreover, ... it is clear that not all governmental services are “essential“.... In addition, forcing labor unions to rely on such traditional political strategies as lobbying can itself distort the political process by
leading to corruption and patronage.29
Because private and public employers and employees were not treated differently in the Industrial Relations Act, we conclude that the legislature found the similarities between private and public employment were more important than the differences.30
Certainly the human needs of public employees are identical to the needs of private employees. In prior cases we have noted that the disruption of private sector services may be as, if not more, adverse to the public interest than disruptions in public services. United Mine Workers, 70 Colo. at 272, 201 P. 54 (“We must take judicial notice ... that the coal industry is vitally related not only to all other industries but to the health and even the life of the people. Food, shelter and heat, before all others, are the great necessities of life and, in modern life, heat means coal.“). Furthermore, the grant of the right to strike to public employees in the Industrial Relations Act does not constitute a transfer of sovereign power. By the enactment of the Industrial Relations Act, “[t]he sovereign in Colorado—the people thereof—has surrendered nothing, bargained nothing away, or in any sense abdicated.” City and County of Denver v. Mountain States Tel. & Tel. Co., 67 Colo. 225, 229, 184 P. 604, 606 (1919). Rather, the Industrial Relations Act recognizes the right of both private and public employees to strike. That legislatively-created right is qualified and subject to executive and judicial branch supervision in order to secure labor peace and thereby to promote the public interest.
III
Because the Industrial Relations Act grants to public employees a qualified right to strike, we need not decide today
The principle of statutory construction, urged by the school district, that statutes in derogation of the common law must be narrowly construed is a principle applicable only when an ambiguity in the language of the statute in question permits such narrowing construction and when the intent of the legislature is not to the contrary. That principle cannot be invoked to defeat the plain and manifest language of the Industrial Relations Act. Needless to say, we cannot read out of existence an express definition under the guise of narrow construction. In addition, the more extensive the scope of a regulatory scheme, the less concern we need have for the consequent displacement of the common law, assuming the common law is implicated at all. From the enactment of the Labor Peace Act in 1943, with its more detailed provisions for the regulation of private sector labor relations, the school district would have us infer an intent by the General Assembly thereby to leave the resolution of public sector disputes to the common law alone. Repeals by implication are not favored. Uberoi v. University of Colo., 686 P.2d 785, 788 (Colo.1984). The two acts do
The school district also argues that the express exclusion of public employers31 from the Labor Peace Act, which among other things delineates the rights of private employees to organize and bargain collectively, indicates an intent by the General Assembly to deny those rights to public employees. Without those rights, the school district reasons, the teachers cannot be deemed to have the right to strike. We reject this argument, too. On the one hand, in Littleton Education Association, 191 Colo. at 414-15, 553 P.2d at 796, we made it clear that collective bargaining agreements in the public sector do not require express statutory authorization. On the other hand, under the Industrial Relations Act, the director has the power to inquire into “the effect of ... associations upon the relations between employers and employees; [and] into the extent and results of methods of collective bargaining.”
Again, we presume that the General Assembly was aware of the scope of the Industrial Relations Act. Had the General Assembly intended in 1943 or since to return public sector labor relations to the realm of the common law, it would have specifically amended the definitions of employer and employee in the Industrial Relations Act. Furthermore, the school district ignores section
Finally, because the Industrial Relations Act provides the regulatory framework for the resolution of public sector labor disputes, we need not search the common law for remedies to resolve those disputes or claims arising from those disputes, a course also urged by the school district. The Industrial Relations Act provides ample statutory remedies. Under section
A
Given that the strike by the teachers was lawful, the question now is whether a lawful strike constitutes an “abandonment” by the teachers of their employment contracts within the meaning of the Teacher Tenure Act. We hold that it does not. As a matter of law, a lawful strike does not constitute abandonment of employment.32 In general, the purpose of a strike is to extract a concession from an employer and, if successful, to realize the benefit of the concession by resuming the employment. A striking employee does not intend to terminate the employment relationship. Indeed, a strike can be viewed as an expression of intent that the employment relationship continue although under different conditions. See Sandoval v. Industrial Commission, 110 Colo. 108, 120, 130 P.2d 930, 935-36 (1942) (ingredients of a strike include “a refusal to work, with intent to bring about compliance with a demand,” and “an intention to return to work when compliance is accomplished“). It is unlikely that an employee intending to abandon a contract of employment would manifest that intent by striking rather than by simply leaving the job site and not returning. Here, not only did the teachers intend to return to the classroom, they also communicated that intent to the school district. By striking, the teachers did not abandon their employment contracts with the school district. Cf. NLRB v. Mackay Radio & Tel., 304 U.S. 333, 347, 58 S.Ct. 904, 911, 82 L.Ed. 1381 (1938) (a “strike in connection with a current labor dispute ... is not to be construed as a renunciation of the employment relation“).
Because we hold that the teachers did not abandon their contracts by striking, we conclude that if the school district desired to terminate those contracts it should have followed the procedures for the involuntary dismissal of the teachers provided in the Teacher Tenure Act. See Frey v. Adams County Sch. Dist. No. 14, 804 P.2d 851, 855 (Colo.1991) (“the procedure prescribed in
C
The school district also argues that this court lacks subject matter jurisdiction of the teachers’ Teacher Tenure Act claims because the claims were not filed in the district court within the 30 days required under C.R.C.P. 106. The court of appeals held that the school district‘s motion to dismiss on jurisdictional grounds was properly denied by the trial court. Martin, 809 P.2d at 1014. The school district, relying on Frey, argues here that the teachers’ claims were based solely on the allegation that the school district abused its discretion or exceeded its jurisdiction by holding the ad hoc hearings and that therefore the teachers’ only available remedy was under Rule 106. In Frey, we held that a teacher could not seek review in the court of appeals absent proceedings under the Teacher Tenure Act and noted that an “aggrieved tenure teacher may bring an action in district court under C.R.C.P. 106 to obtain relief for discharge under circumstances not in compliance” with the Teacher Tenure Act. 804 P.2d at 857. We did not hold that a Rule 106 action was the only avenue of relief under all circumstances.
The school district‘s jurisdictional argument ignores the contractual nature of the teachers’ claims. The standard contract which the school district alleges the teachers abandoned by striking is required by the Teacher Tenure Act. Terms of the contract are direct reflections of provisions of the Tenure Act. The dismissal procedures of the Act form part of the contract. See Julesburg Sch. Dist. No. RE-1 v. Ebke, 193 Colo. 40, 42, 562 P.2d 419, 421 (1977) (“Teacher Tenure Act creates a contract by law between the school board and
V
We hold that under the controlling statutes the teachers of the school district have a qualified right to strike. Because the strike here was lawful, the teachers cannot be liable in tort for peacefully striking. We also hold that a strike per se does not constitute abandonment of the employment relationship. Thus, the school district‘s failure to comply with the dismissal procedures of the Teacher Tenure Act was not harmless error. We remand the case to the court of appeals with directions to return it to the district court for further proceedings consistent with this opinion.
ROVIRA, C.J., dissents, and LOHR, J., joins the dissent.
ERICKSON, J., dissents, and LOHR, J., joins the dissent.
Chief Justice ROVIRA dissenting:
The majority holds that the General Assembly in 1915 abolished the common law rule prohibiting public employee strikes by adoption of the Industrial Relations Act of 1915 (the Act).1 Because I am not convinced that the General Assembly abolished the common law prohibition on public employee strikes in 1915 nor that wise judi-
The majority finds that public employees enjoy a qualified right to strike on the basis of language found in the Act; the provision therein setting forth the authority and jurisdiction vested in the director of the division of labor; and limitations on the right to strike provided in the Act. I do not deny the fact that the terms “employer” and “employee” as used in the Act encompass public school teachers and indeed, all nonelective public officials.2 Nor do I deny that the Act seeks to regulate the manner in which these employees may strike. I am not convinced, however, that these facts taken together lead inevitably to the conclusion that the General Assembly intended to create the right to strike in public sector employees.
The school teachers argue that the General Assembly abolished the common law rule in Colorado with the passage of Title 8, articles 1 and 2.3 In the alternative the teachers argue that if the General Assembly did not abolish the common law rule in 1915, then this court should do so because the rationales commonly offered in support of the rule have been rendered obsolete.
The majority finds, in short, that given the definitions of employee and employer found in the Act and the substantive provisions of that title regulating the ability and manner in which those employees may strike, that the General Assembly intended to create the right to strike in public employees. The central provisions of the Act that the majority relies on for its holding4 provide that:
The director shall do all in his power to promote the voluntary arbitration, mediation, and conciliation of disputes arising under an existing written agreement between employers and employees and to avoid the necessity of resorting to strikes, lockouts, boycotts, blacklists, discriminations, and legal proceedings in matters of employment....
The director has jurisdiction of every dispute between employer and employee affecting conditions of employment, or with respect to wages or hours.... The relation of the employer and employee shall continue uninterrupted by the dispute or anything arising out of the dispute until the final determination thereof by said director; and neither the employer nor any of the employees affected by any such dispute shall alter the conditions of employment with respect to wages or hours or any other condition of said employment; neither shall they, on account of such dispute, do or be concerned in doing directly or indirectly anything in the nature of a lockout or strike or suspension or discontinuance of work or employment.
It is unlawful for any employer to declare or cause a lockout, or for any employee to go on strike, on account of any dispute prior to or during an investigation, hearing, or arbitration of such dispute by the director ... under the provisions of this article.... Nothing in this article shall be held to restrain any employer from declaring a lockout, or any employee from going on strike in respect to any dispute after the same has been
duly investigated, heard, or arbitrated, under the provisions of this article.
After consideration of these and other provisions of the Act, as well as some of the history of Colorado labor relations, the majority concludes that “the language of the act speaks for itself. By its definitions, the Industrial Relations Act grants the right to strike to all employees, private and public, and concurrently places conditions on the exercise of that right.” Maj. op. at 246, 247.
A
The majority‘s conclusion that the Act places conditions on the right to strike is undoubtedly correct. So too is the conclusion that the definitions found in the Act encompass public school teachers. I, however, do not think that these two findings taken together lead to the conclusion that the “act speaks for itself“—clearly answering the question of whether or not public employees have a right to strike. Indeed, I would find not only that the Act does not answer this question but further, that so holding requires us to ignore well-settled precedent.
At common law public employees did not enjoy the right to strike. (See 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) (listing cases in which the common law rule denying public employees the right to strike has been recognized). It is similarly well recognized that, absent judicial or legislative action to the contrary, the common law rule is still binding. 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).
There is a long standing aversion to finding that existing common law principles have been implicitly altered by legislative action. This precept is reflected in past decisions of this court when we have held that “[t]he interplay of common law and a subsequent statute on the same subject is
In the present case, the majority does not contend that the General Assembly, in passing the 1915 Act, expressly changed the common law rule prohibiting public employee strikes. Rather, to the extent that the grant of such a right can be found in the Act, the majority concedes that it can only be found by implication. Reading the Act in such a manner is clearly in derogation of the principles of statutory construction set forth above. Thus, I would hold that based on these well recognized principles, we should decline to find that the Act implicitly abolished the common law prohibition on public employee strikes.
Further, I remain unpersuaded by the majority‘s conclusion that “the act speaks for itself“—even if implicitly—with respect
That question is this: Does the fact that the Industrial Relations Act regulates the ability of employees to strike lead necessarily to the conclusion that the Act concurrently grants public employees such a right? If the answer to this question is yes, then clearly the Act would have implicitly created the right in public employees to strike. If, however, the answer is no, then the Act‘s application to public employees becomes much more ambiguous.
I can find no precedent to support the conclusion that, in regulating a right which does not exist, the legislature thereby creates that right. It is clear that at common law public employees did not enjoy the right to strike. It is similarly clear that the common law rule had not been abolished either judicially or legislatively prior to 1915. I am unable to see how, in regulating the right of public employees to strike, the legislature implicitly created that right. Rather, I am inclined to think that if the legislature intended to grant such a right to public employees, it would have done so explicitly.5 Consequently, I cannot agree with the majority that the Act manifests an intent to grant public employees the right to strike.
B
The teachers next urge that, if the Act did not grant public employees the right to strike, then this court should do so in recognition that the common law rule is no longer justifiable. I would similarly reject this argument, finding that wise judicial discretion dictates that abolition of the common law rule, if indeed warranted, is properly left to the legislative sphere. In so holding, I would approach the question of whether public employees have the right to strike in the same manner as has every other jurisdiction but one, that has addressed this issue.
To date, California is the only state to abolish the common law rule by judicial decision.6 Courts of other jurisdictions who have been called on to resolve this question have unanimously declined to grant public employees the right to strike absent explicit legislative authorization. See City of San Diego v. American Fed‘n of State, County & Mun. Employees, 8 Cal.App.3d 308, 87 Cal.Rptr. 258, 260 (1970) (citing cases from 24 jurisdictions declining to grant public employees the right to strike); James Duff, Jr., Annotation, Labor Law: Right of Public Employees to Strike or Engage in Work Stoppage, 37 A.L.R.3d 1147, 1156-57 (1971) (listing cases from 21 jurisdictions following this approach). Given the important public policy consideration implicated in granting public employees the right to strike, and the myriad approaches by which such a right could be granted and conditioned, the legislature is undoubtedly the preferred forum for making such determinations.
A survey of the manner in which other jurisdictions have abolished or amended the common law rule by legislative action clearly indicates that this issue is not amenable to judicial resolution. At least 10 states have enacted statutory exceptions to the
It is my opinion that the record before us is simply too limited to undertake such a task—assuming, that is, that we would otherwise be inclined to change the common law rule. The legislature is better equipped to entertain and investigate the full range of interests involved in addressing the question of whether or not public
Resolution of the differences between my views and those of the majority can easily be reached. If the General Assembly is of the view that the majority opinion faithfully interprets the legislative intent of the Act, then no action need be taken and public employee strikes subject to certain restrictions will be permissible. On the other hand, if the General Assembly does not agree with the conclusion reached in the majority opinion, appropriate legislation will remedy the matter.
Accordingly, I respectfully dissent.
I am authorized to say that Justice LOHR joins in this dissent.
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
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
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 lan-
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
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
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.
If 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.