Bargaining in Blue 

By

Ballotpedia staff

In this month’s edition of Bargaining in Blue: 

  • On the beat: Colorado Department of Labor and Employment finds police management guilty of unfair labor practices
  • Insights: Statutes or regulations prohibiting collective bargaining with police unions
  • Around the table: Arguments about the impact of collective bargaining on police management

On the beat

Colorado Department of Labor and Employment finds police management guilty of unfair labor practices

The Colorado Department of Labor and Employment (CDLE) on Nov. 1 released a determination finding the Douglas County Sheriff’s Office guilty of unfair labor practices. Sheriff Darren Weekly, Undersheriff David Walcher, and County Commissioners George Teal, Abe Laydon, and Lora Thomas were found to have violated Colorado’s Collective Bargaining by County Employees Act (COBCA). 

County officials and police management within the county’s sheriff’s office reportedly made YouTube videos, ran an email campaign, held staff meetings, and used county funds to hire consultants to develop and distribute messages intended to dissuade officers from voting in favor of collective bargaining with the state’s Fraternal Order of Police (FOP).

The CDLE determination contended, “Sheriff Weekly’s false and misleading statements threatened reprisal for and discouraged county employees from unionizing in violation of section 115(2)(a) and (b), and were coercive and official in nature such that they were not expressions of personal opinion under section 115(5).”

Sheriff Weekly argued he was expressing his opinion and exercising his right to free speech. He stated, “We did not threaten or coerce our staff. We simply shared accurate information so they could make an informed decision. … COBCA as currently written is blatantly unconstitutional. My staff put their lives on the line every day. As a 31-year veteran of my agency, nobody can represent the best interest of my staff better than me. Collective bargaining only adds an unnecessary level of bureaucracy.”

The Douglas County Sheriff’s Office and Board of Commissioners on Nov. 7 appealed the decision and requested a stay of enforcement.

The background

At the beginning of 2024, the FOP began collecting signatures and conducting surveys to assess the level of interest in collective bargaining among officers at the Douglas County Sheriff’s Office. Based on officers’ responses, the FOP scheduled an election to be held from April 29 through May 3. 

In February, the sheriff, undersheriff, and county commissioners reportedly began running a campaign to distribute messaging to dissuade unionization. 

The FOP withdrew its petition for the election on April 24 and announced plans to file unfair labor practices against the sheriff’s office and county commissioners. The union wrote, “We felt that first adjudicating these unfair labor practices would ensure that the illegal intimidation tactics employed by these elected officials will cease so voters can be confident that they will not be subjected to retaliation by the County, the Sheriff, and his Undersheriff.”

Sheriff Weekly and the Douglas County Board of Commissioners on May 7 filed a complaint against the CDLE, arguing the COBCA does not apply to the sheriff’s office and is not enforceable because it is an unfunded mandate. The complaint also argued if the COBCA is found to be mandatory and applicable to the sheriff’s office, then “negotiation is not required for employment terms that are subject to other statutory responsibility or authority.”  

The FOP filed an unfair labor practice complaint with the CDLE on May 10, arguing the county officials and police management violated the COBCA by their actions to dissuade unionization. 

A closer look at Colorado state law

Colorado’s COBCA, which is codified in Colorado Revised Statute § 8-3.3, guarantees county employees the right to bargain collectively, among other provisions. CO Rev. Stat § 8-3.3-103 states:

(1) County employees have the right to:

(a) Self-organize;

(b) Form, join, or assist an employee organization;

(c) Engage in the collective bargaining process and the formation of a collective bargaining agreement through representatives of their own choosing;

(d) Engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; and

(e) Refrain from any or all concerted activities without interference, constraint, or coercion by a county or an employee organization.

The COBCA prohibits the county and anyone acting on the county’s behalf from certain actions such as coercion, intimidation, and the use of public funds to support or oppose employee organizations. CO Rev. Stat. § 8-3.3-115(2) states:

(2) A county, its representatives, its agents, or anyone acting on behalf of the county shall not:

(a) Discriminate against, coerce, intimidate, interfere with, or impose reprisals against, or threaten to discriminate against, coerce, intimidate, interfere with, or impose reprisals against, any county employee for forming or assisting an employee organization or expressing the county employee’s views regarding county employee representation or workplace issues or the rights granted to the county employee in this article 3.3;

(b) Deter or discourage county employees or county employee applicants from becoming or remaining members of an employee organization or from authorizing payroll deductions for dues or fees to an employee organization; except that the county may respond to questions from a county employee pertaining to the county employee’s employment or any matter described in this article 3.3, as long as the response is neutral toward participation in, selection of, and membership in an employee organization;

(c) Use any public funds or official position to support or oppose an employee organization; except that the provision of routine services and facilities and paid time for exclusive representatives may be provided by a county pursuant to a collective bargaining agreement between the county and an exclusive representative;

Colorado state law also defines the expression of personal views and opinions and outlines the forms of expression that violate the COBCA. CO Rev. Stat. § 8-3.3-115(5) states:

(5) The expression of any personal view, argument, or opinion by an elected official must not be considered a violation of this section unless the expression contains a threat of reprisal or promise of a benefit or is made under coercive conditions. Representatives of counties may correct the record with respect to any false or misleading statement made by any person, publicize the fact of a representation election, and encourage county employees to exercise their right to vote in the election.

Want to go deeper?

Insights

Ballotpedia CBA Dashboard takeaways on statutes prohibiting police collective bargaining

  • Featured dashboard query
    • Scope: the largest cities by population in Colorado
    • Topic: jurisdictions with police collective bargaining agreements

State statutes and municipal codes can include regulations governing or prohibiting the rights of police officers to engage in collective bargaining. State statutes can require municipalities to engage in collective bargaining with public employees, prohibit collective bargaining for public employees, or allow municipalities to decide whether or not to engage in collective bargaining. 

Some statutes or municipal codes can also make certain exceptions for police officers outside of the requirements for other public employees. 

According to our Police CBA Dashboard:

  • Five states have statutes or regulations prohibiting collective bargaining with police unions.
    • Georgia, North Carolina, South Carolina, and Tennessee prohibit collective bargaining for public employees at the state and local levels.
    • Texas prohibits collective bargaining for state employees but allows it for city employees. 
  • Ten of the 100 largest cities in the U.S. have statutes or regulations prohibiting collective bargaining with police unions.
    • Eight of the ten cities are prohibited from collective bargaining by state statutes.
    • Two of the cities are prohibited by city-specific policies or regulations. 
  • Colorado grants public employees the right to collectively bargain under state law.
  • Ballotpedia’s CBA Dashboard includes three Colorado cities. Click here to view the dashboard query showing details of the Colorado cities with CBAs.
  • Two of the three Colorado cities in Ballotpedia’s analysis are engaged in collective bargaining with a police union:
    • Aurora and Denver have police CBAs.
    • Colorado Springs does not have a police CBA, however, no statute or regulation prohibits collective bargaining with police unions. 

Around the table

Arguments about the impact of collective bargaining on police management 

Tate Fegley, a research fellow at the Independent Institute, wrote in a 2020 article published in The Independent Review about police union successes with limiting management discretion. Fegley argued police management is often granted significant discretion over policies and practices impacting police officers. The article advocated for the role of police unions to represent officers and provide a check against police management discretion: 

[P]olice managers have more discretion than managers in the private sector when it comes to personnel practices; that is, if the police manager creates a work environment that is suboptimal from the perspective of the rank and file, he faces little financial repercussion from losing employees to competitors in the labor market. But if he creates a work environment that is too accommodating for officers at the expense of other concerns (such as by neglecting to faithfully investigate accusations of corruption or other types of misconduct), he also faces relatively less repercussion than would a manager in the private sector. […]

Police employees do not enjoy the benefits of competition between employers to the extent that employees in the private sector do, particularly because their skills are relatively specific to public-sector employment. Absent civil service protections, police managers will enjoy greater discretion regarding issues such as applying discipline, and thus it is understandable why police unions would bargain or lobby for protections.

Daniel DiSalvo, a senior fellow at the Manhattan Institute, argued in a 2021 article that the influence of police unions constrains police management. DiSalvo argued contractual provisions and Law Enforcement Bill of Rights (LEOBORs) limit police management from establishing certain provisions, particularly related to discipline:

In addition to, or sometimes in lieu of, contractual rights, some police unions have used political muscle to enshrine job protections in state law. […]

In light of the above, police chiefs and their departments are not free to adopt personnel policies, especially related to misconduct and discipline, of their own choosing. Rather, department leadership is limited by a variety of contractual and statutory provisions that shape the organizations they run. As with most bureaucracies, the legal governance of police departments goes on to shape their particular culture.

Want to go deeper?

Snapshot of a CBA expiring soon

Fort Wayne, Indiana, police CBA set to expire on December 31

The collective bargaining agreement between the city of Fort Wayne, Indiana, and the Fort Wayne Patrolmen’s Benevolent Association (PBA) is set to expire on Dec. 31.  

In January, the Fort Wayne City Council voted to approve salary raises for members of the Fort Wayne PBA, however, an updated or renewed CBA had not been made publicly available as of Dec. 11.