Colorado § 8-3-109 - What are not unfair labor practices.

§ 8-3-109. What are not unfair labor practices.

(1) It is not an unfair labor practice for any employer to refuse to grant a closed shop or all-union agreement or to accede to any proposal therefor as provided in this article.

(2) The right of both employer and employee freely to express, declare, and publish their respective views and proposals concerning any labor relationship shall not be abrogated or limited by this article, nor shall the exercise of such right constitute an unfair labor practice. No strike shall be lawful unless it is authorized by a majority vote of the employees in the union involved taken by secret ballot such as is provided in this article.

(3) It shall not be an unfair labor practice for an employer engaged primarily in the building and construction industry to enter into an all-union agreement, except an agreement providing for an agency shop or modified agency shop, with a labor organization, which agreement is limited in its coverage to employees who, upon their employment, will be engaged in the building and construction industry, if a copy of such agreement is filed with the director and certified by him as provided in section 8-3-108 (1)(c)(II)(B). Such agreement may be ratified as provided in section 8-3-108 (1)(c)(II)(C) or terminated by the director as provided in section 8-3-108 (1)(c)(III).

Source: L. 43: p. 403, § 7. CSA: C. 97, § 94(7). CRS 53: § 80-5-7. C.R.S. 1963: § 80-4-7. L. 77: (3) added, p. 422, § 3, effective June 29.

ANNOTATION

Subsection (2) of this section excludes from the category of "unfair labor practice" the right of both employer and employee freely to express, declare, and publish their respective views and proposals concerning any labor relationship. Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

Subsection (2) is a recognition of the constitutional right of every citizen. Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

Peaceful picketing is a form of free speech and as such protected by constitutional guaranty, for to hold otherwise would be to fix a limitation on the right to express views concerning a labor relationship, and invade the right of freedom of speech contrary to the explicit provisions of this section. People v. Harris, 104 Colo. 386, 91 P.2d 989 (1939); Local 13, Teamsters v. Perry Truck Lines, Inc., 106 Colo. 25, 101 P.2d 436 (1940); Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

Moreover, this right of free communication cannot be mutilated by denying it to workers in a "dispute" with an employer even though they are not in his employ, inasmuch as a state cannot exclude working men from peacefully exercising the right of free communication by drawing the circle of economic competition between employers and workers so small as to contain only an employer and those directly employed by him, for the interdependence of economic interest of all engaged in the same industry has become a commonplace. Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

Therefore, this section does not prohibit picketing by a labor union of an employer of nonunion labor even though there is no immediate employer-employee dispute, as such a ban of free communication is inconsistent with the guarantee of freedom of speech. Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

However, picketing must be "peaceful", and "peaceful picketing" means simply, tranquil conduct, conduct devoid of noise or tumult, the absence of a quarrelsome demeanor, a course of conduct that does not violate or disturb the public peace. As a necessary corollary, boisterous conduct, the use of vile language, bellicose demeanor, threats, violence, coercion, intimidation, shouting and interference with the use of premises or impeding a public highway, as by mass picketing, which is the use of a large number of pickets, is not peaceable picketing, but is illegal picketing. UMW v. Golden Cycle Corp., 134 Colo. 140, 300 P.2d 799 (1956).