Unions have been undergoing a slight resurgence in recent years, with workers across the country organizing at warehouses, coffee shops and even cannabis dispensaries.
In most states, these unionization drives require a single vote—once the vote is passed, the union is created. But Colorado is different. Union formation in Colorado requires two votes, a quirk in place because of a law passed in 1943: the Colorado Labor Peace Act.
Colorado’s labor history up until 1943 includes several nationally famous incidents. Labor organization in the late 1800s and the first half of the 20th century was often met with violence in the state, including the deadly Cripple Creek Miners Strike, Ludlow Massacre and Columbine Mine Massacre.
On the legal front, the playing field for unions and labor organization was changed in 1935 with the passage of the National Labor Relations Act. The NLRA established a set of fundamental labor rights for unions and employees and codified their legality into federal law.
The new law was not without its detractors, and eight years later, a bill concerning labor rights wound up in the Colorado General Assembly.
According to a United Press article from the time, the bill was the No. 1 issue as the legislative session drew to a close that year. The act was dubbed a “stab in the back” by labor leaders at the time. The parties were divided with Democrats opposing the legislation and Republicans supporting it.
The bill’s sponsors called it “the labor peace bill,” while James Brownlow, the secretary of the state federation of labor at the time, said the bill would produce strife and discord. He also noted that the bill would make unions subservient to the state industrial commission.
Philip Hornbein, writing in the Denver Law Review, noted that the act could be summarized in five ways. It confined labor disputes to the employees of a single employer; controlled the internal affairs of labor unions and prohibited their political activity; restricted the process of collective bargaining in some cases; limited or prohibited the use of strikes, boycotts and picketing; and gave courts the power to issue labor injunctions.
The bill also required two union elections, making Colorado’s labor law unique compared to the rest of the country. The first vote is comparable to others across the country. If a simple majority votes yes, a union is formed. The second vote is where the split occurs. Colorado law requires a 75% majority in the second vote to require fees from all workers represented by the union.
Following the act’s passage, it didn’t take long for labor organizations to begin litigation against it. Just over a month after its passage, the Oak Creek Times reported that the United Mine Workers and Congress of Industrial Organizations were seriously questioning the law and that the CIO had created a $25,000 fund to bring a test case before the U.S. Supreme Court.
While a fund was created for the U.S. Supreme Court, the law ended up in the Colorado Supreme Court three times before the end of the decade.
In American Federation of Labor v. Reilly, Hornbein, who argued for the AFL, wrote that the state high court invalidated the portion of the act requiring incorporation of labor unions but didn’t decide on the constitutionality question for other sections of the act.
Three years later, five separate actions for injunctions under the act were combined in a case before the high court. The law again survived, with the justices holding that the law as applied was constitutional, valid and enforceable.
The third case that came before the court was Amalgamated Meat Cutters v. Green, and the law again survived a union challenge.
But it’s unclear if the second election provision will survive another legislative session. A group of Democrats are planning to introduce the Worker Protection Act in the 2025 legislative session, which would eliminate the second vote requirement and bring Colorado in line with other states.