Most eligible county employees in Colorado won the right to elect and form unions with Colorado’s Collective Bargaining by County Employees Act, which goes into effect in 2023 and provides a significant expansion of collective bargaining rights for many county workers.

INTRODUCTION

For employers and employment law practitioners in states where these laws are new, or not yet in effect, the reper­cussions on their workforce should not be understated. Based on the latest data concerning union membership released by the U.S. Department of Labor’s Bureau of Labor Statistics,2 on average, in states where public employers are “permitted,” but not legally required, to collectively bargain, 7.7% of employees were represented by a union in 2021.2 This is in stark contrast to states with legislation requiring public employers to collectively bargain, where on average 14.1% of employees were represented by a union in 2021.3 Overall, states that have enacted laws related to public-sec­tor employee unions see significantly higher union membership rates in both the public and private sector. This article focuses on the latest state, Colorado, to move forward with unionization of em­ployees in most of the state’s counties.

Unionization in Colorado.

Starting on July 1, 2023, county employ­ees across Colorado will have the right to be represented by unions and to bargain collectively with their employers for sala­ry, benefits and other terms and condi­tions of employment under the Collec­tive Bargaining by County Employees Act ( “Act”).4 Colorado joins states like California and New York, which have had similar laws in their books for years.5 In 2021, when 7.5% of employ­ees in Colorado were represented by a union, 17.8% of employees in California and 24.1% of employees in New York were represented by a union.6

Below, we highlight the Act’s key ele­ments and explore its application.

Applicability

The Act does not apply to the city-coun­ties of Denver and Broomfield and counties with fewer than 7,500 residents. Only county employees in 38 of Colora­do’s 64 counties will be allowed to form a union if they choose.7

Definitions

Under the Act, a “county employee” means a person employed by one of the affected 38 counties, including a person whose employment with that county has ceased due to an unfair labor practice or a discharge, if such discharge is subject to appeal under an applicable appeals process.8

“Bargaining unit” means a group of county employees in a unit deemed appropriate for the purpose of collective bargaining.9

“Employee organization” means a nonprofit organization that engages with a county concerning wages, hours, and other terms and conditions of employ­ment and that represents or seeks to represent county employees in a bargain­ing unit.10

“Exclusive representative” means the employee organization certified or recog­nized as the representative of employees in a bargaining unit.11

“Collective bargaining agreement” means an agreement negotiated between an exclusive representative and a county, including an agreement reached through an impasse resolution process.12

“Collective bargaining” or “collective­ly bargain” means the performance of the mutual obligation of a county and an exclusive representative to:13

Meet at reasonable times and places and negotiate in good faith with respect to wages, hours, and other terms and conditions of employment;

Resolve questions arising under a col­lective bargaining agreement through a negotiated grievance procedure culminating in final and binding arbitration; and

Execute a written contract incorpo­rating any agreements reached

Regulation and Enforcement

The Act charges the director—of the Division of Labor Standards and Statistics of the Colorado Depart­ment of Labor and Employment (the “CDLE”)—with the power to enforce, interpret, apply, and administer the provisions of the Act through rulemak­ing, hearing, and appeals, including the establishment of procedures for:14

Designating “appropriate” bargain­ing units; Selecting, certifying, and decertifying exclusive representatives; and Filing, hearing, and determining complaints of unfair labor practices.

The Act also gives the CDLE the au­thority to adjudicate disputes between parties through hearings and to issue subpoenas to compel the attendance of witnesses and the production of records. This authority may be dele­gated to hearing officers, who under the Act must make a decision “on each relevant issue raised, including findings of fact, conclusions of law, and an order.”15 Such decision and order con­stitutes a final agency action appealable pursuant to C.R.S. § 24-4-106 (the State Administrative Procedure Act).

The penalties that may be imposed for violations of the Act include:

Appropriate administrative rem­edies; Actual damages related to employee organization dues;

Back pay, including benefits;

Reinstatement of the county employee with the same seniority status that the employee would have had but for the violation;

Other remedies to address any loss suffered by a county employee or group of county employees from unlawful conduct by a county; and Declaratory or injunctive relief or provisional remedies, including temporary restraining orders or preliminary injunctions.

The CDLE will be required to maintain on its website, among other information about the Act, all hearing officer decisions and orders, all final judgments and written decisions of fact regarding any impasse resolution, and all determinations by the CDLE of certification and decertification of an exclusive representative.

How Unionization Starts

The process prescribed for unioniza­tion under the Act would begin when at least 30% of county employees in a bargaining unit, as claimed by an employee organization seeking certifi­cation, file a petition with the CDLE that contains a “showing of interest” for an election.16

The CDLE would then direct the county to distribute notice to all county employees in the applicable bargaining unit that must identify the petition­er-employee organization, the bargain­ing unit sought by the petitioner, the election process, and an advisement of county employee rights under Section 103 of the Act.17

Within ten days after the date of such notice, other employee organi­zations may seek to intervene in the certification process. 18 The “intervener organization” must file a petition with the CDLE “containing the signatures of not less than thirty percent of the coun­ty employees in the bargaining unit claimed to be appropriate by the inter­vener.”19 If there is a dispute regarding the positions to be included in the appropriate bargaining unit, the CDLE would “promptly order a hearing” to determine the composition of the ap­propriate bargaining unit. 20 The CDLE would then determine “the sufficiency of the showing of interest” of each employee organization petitioning for certification.21 Any petitioner that lacks a sufficient showing of interest would be provided with a ten-day opportunity to demonstrate a sufficient showing of interest in the bargaining unit that the CDLE deems appropriate. 22

The CDLE would then “designate the appropriate bargaining unit for col­lective bargaining[,]”23 which must be determined by the consent of the county and the employee organization, or, if there is not agreement between the parties, by an administrative determination of the CDLE. In determining the appropri­ateness of a bargaining unit, the CDLE would consider:24

The desires of the public employees; The similarity of duties, skills, and working conditions of the public em­ployees involved; The wages, hours, and other working conditions of the public employees; The administrative structure and size of the public employer; The history of collective bargaining with that public employer, if any, and with similar pub­lic employers; and Other factors that are normally or traditionally taken into consideration in determining the appropriateness of bargaining units in the public sector.

Within ten days after the CDLE’s de­termination that an employee organiza­tion has provided a sufficient showing of interest by the appropriate bargaining unit, the CDLE will:25

Order the county to provide to the petitioning employee organization or organizations the names, job ti­tles, work locations, home address­es, personal e-mail addresses, and home or cellular telephone num­bers of any county employee in the appropriate bargaining unit unless directed by the county employee not to provide some or all of the information;

Establish by consent or order the procedures for a secret ballot election; and Order the county to distribute a notice prepared by the director that describes the proce­dures of the secret ballot election to all county employees in the appro­priate bargaining unit.

A secret ballot election would then take place,26 and the ballot used would contain: 27

The name of any employee organi­zation submitting a petition contain­ing a showing of interest of at least thirty percent of the county employ­ees in the appropriate bargaining unit; and

A choice of “no representation” for county employees to indicate they do not desire to be represent­ed by an employee organization.

To become certified by the CDLE and formally recognized by a county under the Act, the employee organi­zation must receive “more than fifty percent of the valid ballots cast.”28 If multiple employee organizations are seeking certification, and none receive a majority of the ballots cast, the CDLE would conduct a runoff election between the two employee organizations that received the larg­est number of votes.29 The employee organization that receives the majori­ty of votes would then be certified by the CDLE as the exclusive represen­tative of all county employees in the appropriate bargaining unit.30

The Act states that “any party” may file objections to the results of the election. 31 For the CDLE to invalidate the results of an election and order a subsequent election, the objecting party must show, and the CDLE find, that “misconduct affect­ed the outcome of the election[.]”32

How Collective Bargaining Works

Under the Act, any collective bargain­ing agreement negotiated between an exclusive representative and the county must be approved by the board of county commissioners of the county.33 The agreement can only be for a term of at least one year, but not more than five years.34 It must also contain an arbitration provision for “disputes over the interpretation, application, and enforcement of any provision of the collective bargain­ing agreement.”35 Moreover, certain agreements are precluded under the Act, such as any agreement to use paid time for any part of a suspension that is properly imposed, “in accor­dance with applicable standards or procedures, or where a supervisor, employer, administrative law judge, hearing officer, or a court has found a deprivation of rights under the state or federal constitution[.]”36

In negotiating the terms of a collective bargaining agreement, a county and exclusive representative are obligated to “collectively bar­gain in good faith.”37 Under the Act, this obligation:38

Requires a county, upon request of the exclusive representative, to provide information that may be rel­evant to the terms and conditions of employment or the interpretation of the collective bargaining agreement

Includes a county’s duty to furnish data to the exclusive representative that: Is normally maintained by the county in the regular course of busi­ness; and

Is reasonably available and necessary for full and proper discussion, understand­ing, and negotiation of subjects within the scope of collective bargaining or subject to a grievance under a collective bargaining agreement; and

Does not include an obligation to furnish information that constitutes guidance, advice, counsel, or training provided for managerial employees or executive employees relating to collec­tive bargaining.

Although the parties should “make a good faith effort to complete negotia­tions[,]”39 neither party is compelled “to agree to a proposal or make a conces­sion.”40 The Act sets forth procedures that a county and exclusive representa­tive must follow to address any impasse that arises during negotiations of a collective bargaining agreement.41 If the parties cannot reach an agreement on any issue “subject to collective bargain­ing,” either party may request the assis­tance of a mediator.42 Collective bar­gaining between the parties would then proceed with the aid of a mediator.43 If, on the other hand, the parties cannot agree on a mediator, they must request mediation assistance from the Federal Mediation and Conciliation Service.44

If the parties remain at an impasse following mediation, either party could “request fact finding” in accordance with the rules promulgated by the CDLE, which would require the parties to select one of seven “qualified fact finders” from the Federal Mediation and Conciliation Service or the American Ar­bitration Association.45 Next, unless the parties otherwise agree, the fact finder would make a recommendation on each issue in dispute, and in doing so would need to consider:

The financial ability of the county to meet the costs of any proposed settlement;

The interests and welfare of the public;

The compensation, hours, and terms and conditions of employment of the county employees involved in the collective bargaining in comparison with the compensation, hours, and terms and conditions of employment of other employees in the public and private sectors in comparable commu­nities;

The stipulations of the parties;

The lawful authority of the county;

Changes in the cost of living; and

Other factors that are normally or traditionally taken into consideration in the determination of compensation, hours, and terms and conditions of employment through voluntary col­lective bargaining, interest arbitration, or otherwise between parties in public and private employment.

The exclusive representative would then have the option to approve or reject the recommendation of the fact finder.46 If the exclusive representative approves of the recommendation, the board of county commissioners of the county would “vote to accept or reject the recommendation at a regular or special meeting open to the public immediately following notification by the exclusive representative that the bargaining unit has accepted the recom­mendation.”47

Any costs of mediation services or the fact finder would be shared “equally” by the parties.48 If mediation fails and, after considering the fact finder’s rec­ommendations, the parties remain at an impasse, “each party remains obligated to collectively bargain in good faith to resolve the impasse.”49

Counties’ Obligations

The Act establishes certain requirements and procedures that county employers must follow, including:

Annually informing its employees who are represented by an exclusive representative of their rights under Section 103(3)(b) of the Act to have their exclusive representative be present at an examination by a rep­resentative of the county in connec­tion with any investigation that the employee reasonably believes “may result in disciplinary action against the county employee,” and the county employee “requests representation.”50

Give the exclusive representative “rea­sonable access” to county employees at work, the scope of which “must be determined through collective bargain­ing.”51 Provide the exclusive represen­tative with certain information about county employees at the end of each calendar quarter, unless directed by the county employee not to provide some or all of their information, specifically:

The name, employee identification number, department, job classification, job title, work telephone number, work e-mail address, work address, work location, salary, and date of hire of each county employee as contained in the county’s records; and The home ad­dress, home and personal cellular tele­phone numbers, and personal e-mail address of each county employee.52

When hiring a new employee, the county must follow certain procedures to comply with the Act, including providing the exclusive representative with an op­portunity to meet with the new employee during work time (as determined through collective bargaining), and paying its employee for that time at the same rate of pay that the employee is paid during normal work hours.53 The county must also provide the exclusive representative notice at least ten days in advance of a new employee orientation, except that a shorter notice may be provided when there is an urgent need, “critical to the county’s operations, that was not reason­ably foreseeable.”54 Moreover, the county must provide the exclusive representa­tive with access to a county employee’s orientation and orientation materials and information. 55

Make payroll deductions for member­ship dues and other payments that county employees voluntarily authorize to be made to a union and related entities.56

A county cannot refuse to negotiate in good faith with respect to wages, hours, and other terms and conditions of em­ployment, including refusing to cooperate in any impasse resolution procedure.57

The Act sets forth numerous “unfair la­bor practices” that are prohibited, such as any act by anyone acting on behalf of a county that functions to:58

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 under the Act;

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 under the Act, as long as the response is neutral toward participation in, selection of, and membership in an employee organization; Dominate or interfere in the administration of an employee organization; Discharge or discriminate against a county employee because the employee has filed an affi­davit, petition, or complaint or given any information or testimony pursuant to the Act or a collective bargaining agreement or chosen to be represented by an exclusive representative; or Fail to comply with the requirements of the Act in any way.

Key Takeaways

• The Act goes into effect on July 1, 2023.
• The city-counties of Denver and Broom­field and counties with fewer than 7,500 residents are excluded.
• In a process administered by the CDLE, unions would be formally rec­ognized after a secret ballot election in which 30% of the county employees of a proposed bargaining unit submit a peti­tion showing an interest in an election.
• If a majority of the county employees in the appropriate bargaining unit vote in the secret ballot election in favor of unionizing, the CDLE would certify the employee organization as the exclusive representative for that bargaining unit, and collective bargaining agreement negotiations would proceed between the county and the exclusive representative.
• Both the county and exclusive repre­sentatives are obligated to collectively bargain in good faith, including if an impasse arises on any issue subject to collective bargaining.
• If the parties are unable to collectively bargain, a mediation-based, fact-find­ing process begins, administered by the CDLE.
• Ultimately, the collective bargaining agreement negotiated between the coun­ty and the union must be approved by the board of county commissioners.
• Counties have certain obligations under the Act, such as providing unions with “reasonable access” to county employees.
• The Act prohibits certain “unfair la­bor practices,” and any violation of the Act may result in the imposition of civil penalties.

Employers affected by the Act and by similar laws in other states have an obligation to establish policies and procedures to ensure compliance. Reach out to your employment attorney for guidance.

NOTES

1.Ballotpedia, Public-sector union policy in the United States, 2018-present, https://ballotpedia.org/Public-sector_union_poli­cy_in_the_United_States,_2018-present

2.U.S. Bureau of Labor Statistics, Union Members – 2021, https://www.bls.gov/news.release/pdf/union2.pdf

3.Compare Ballotpedia with Bureau of Labor Statistics.

4.Id.

5.C.R.S. § 8-3.3-101.

6.Cal. Gov’t Code § 12926(d); N.Y. Civ. Serv. Law § 200.

7.Bureau of Labor Statistics, supra note 2.

8.C.R.S. § 8-3.3-102(6)(b). County em­ployees of certain schools and hospitals are also excluded from the Act.

9.C.R.S. § 8-3.3-102(7).

10.C.R.S. § 8-3.3-102(1).

11.C.R.S. § 8-3.3-102(12).

12.C.R.S. § 8-3.3-102(13).

13.C.R.S. § 8-3.3-102(3).

14.C.R.S. § 8-3.3-102(2)(a)-(c).

15.C.R.S. § 8-3.3-106(1)(a)-(c).

16.C.R.S. § 8-3.3-106(3)(a).

17.C.R.S. §§ 8-3.3-115(1); 8-3.3-108(1)(a), (b).

18.C.R.S. § 8-3.3-109(1).

19.C.R.S. § 8-3.3-109(2).

20.C.R.S. § 8-3.3-109(2)..

21.C.R.S. § 8-3.3-109(3).

22.C.R.S. § 8-3.3-109(3).

23.C.R.S. § 8-3.3-109(3).

24.C.R.S. § 8-3.3-108(1)(a).

25.C.R.S. § 8-3.3-110(2)(a)-(f).

26.C.R.S. § 8-3.3-109(4).

27.C.R.S. § 8-3.3-108(1)(a).

28.C.R.S. § 8-3.3-109(5).

29.C.R.S. § 8-3.3-108(1)(a).

30.C.R.S. § 8-3.3-109(6)(b).

31.C.R.S. § 8-3.3-109(6)(a), (b).

32.C.R.S. § 8-3.3-109(7).

33.C.R.S. § 8-3.3-109(7).

34.C.R.S. § 8-3.3-113(1).

35.C.R.S. § 8-3.3-113(2).

36.C.R.S. § 8-3.3-113(4)(a).

37.C.R.S. § 8-3.3-113(5)(b).

38.C.R.S. § 8-3.3-112(1).

39.C.R.S. § 8-3.3-112(2).

40.C.R.S. § 8-3.3-112(4).

41.C.R.S. § 8-3.3-112(1).

42.C.R.S. § 8-3.3-114(1).

43.C.R.S. § 8-3.3-114(2)(a).

44.C.R.S. § 8-3.3-114(2)(a).

45.C.R.S. § 8-3.3-114(2)(b).

46.C.R.S. § 8-3.3-114(4)(b).

47.C.R.S. § 8-3.3-114(5).

48.C.R.S. § 8-3.3-114(5).

49.C.R.S. § 8-3.3-114(2)(b), (4)(e).

50.C.R.S. § 8-3.3-114(6)(a).

51.C.R.S. § 8-3.3-103(5).

52.C.R.S. § 8-3.3-104(1).

53.C.R.S. § 8-3.3-104(2).

54.C.R.S. § 8-3.3-104(3)(b).

55.C.R.S. § 8-3.3-104(3)(a).

56.C.R.S. § 8-3.3-104(3).

57.C.R.S. § 8-3.3-104(4).

58.C.R.S. § 8-3.3-115(1)