COUNTY COLLECTIVE BARGAINING (COBCA) RULES

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DEPARTMENT OF LABOR AND EMPLOYMENT

Division of Labor Standards and Statistics

COUNTY COLLECTIVE BARGAINING (COBCA) RULES

7 CCR 1103-16

[Editor’s Notes follow the text of the rules at the end of this CCR Document.]

_________________________________________________________________________

Adopted May 11, 2023; effective July 1, 2023.

Rule 1. Statement of Purpose and Authority

1.1

The general purpose of these County Collective Bargaining Rules is to exercise the authority of

the Director, through the Division, to administer and enforce the provisions of the Collective

Bargaining by County Employees Act (“COBCA”), Colorado Revised Statutes (C.R.S.) Title 8,

Article 3.3 (2023), C.R.S. § 8-3.3-101 et seq. These rules are intended to be consistent with the

rulemaking requirements of the State Administrative Procedure Act, C.R.S. § 24-4-103.

1.2

The Director of the Division of Labor Standards and Statistics in the Department of Labor and

Employment has authority to enforce, interpret, apply, and administer the provisions of C.R.S.

Title 8, Article 3.3 and these rules.

1.3

Incorporations by Reference. The Collective Bargaining by County Employees Act, C.R.S. § 8-

3.3-101 et seq., is hereby incorporated by reference into these rules. Such incorporation excludes

later amendments to or editions of the statutes. These statutes are available for public inspection

at the Colorado Department of Labor and Employment, Division of Labor Standards & Statistics,

633 17th Street, Denver CO 80202. Copies may be obtained from the Division of Labor

Standards & Statistics at a reasonable charge. Electronic access is available from the website of

the Colorado Secretary of State. Pursuant to C.R.S. § 24-4-103(12.5)(b), the agency shall provide

certified copies of the statutes incorporated at cost upon request or shall provide the requestor

with information on how to obtain a certified copy of the material incorporated by reference from

the agency originally issuing the statutes

able charge. Electronic access is available from the website of

the Colorado Secretary of State. Pursuant to C.R.S. § 24-4-103(12.5)(b), the agency shall provide

certified copies of the statutes incorporated at cost upon request or shall provide the requestor

with information on how to obtain a certified copy of the material incorporated by reference from

the agency originally issuing the statutes. All Division rules are available to the public at

www.coloradolaborlaw.gov. Where these rules have provisions different from or contrary to any

incorporated or referenced material, the provisions of these rules govern so long as they are

consistent with Colorado statutory and constitutional provisions. Where these rules reference

another rule, the reference shall be deemed to include all subparts of the referenced rule.

1.4

Separability. These rules are intended to remain in effect to the maximum extent possible. If any

part (including any section, sentence, clause, phrase, word, or number) is held invalid, (A) the

remainder of the Rule remains valid, and (B) if the provision is held not wholly invalid, but merely

in need of narrowing, the provision should be retained in narrowed form.

Rule 2. Definitions

2.1

“Authorized representative” means a person designated by a party to any labor-management

dispute, unfair labor practice complaint, election petition, or other Division administrative

proceeding to represent the party. A party may designate an authorized representative by filing

the Division-approved form or by a signed written notice to the Division that the authorized

representative will represent the party. Authority of the authorized representative may be revoked

by the designating party upon written notice to the Division.

Code of Colorado Regulations

Secretary of State

State of Colorado

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vision-approved form or by a signed written notice to the Division that the authorized

representative will represent the party. Authority of the authorized representative may be revoked

by the designating party upon written notice to the Division.

Code of Colorado Regulations

Secretary of State

State of Colorado

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2.2

“Bargaining unit” means a group of county employees in a unit deemed appropriate for the

purpose of collective bargaining in accordance with C.R.S. § 8-3.3-110, except that a bargaining

unit does not include a confidential employee as defined by C.R.S. § 8-3.3-102(5); an executive

employee as defined by C.R.S. § 8-3.3-102(14); a managerial employee as defined by C.R.S. §

8-3.3-102(18); or temporary, intermittent, or seasonal employees who work less than 90 days in a

365-day period.

2.3

“COBCA” means the Collective Bargaining by County Employees Act as contained in Title 8,

Article 3.3 of the Colorado Revised Statutes, enacted on May 27, 2022.

2.4

“Collective bargaining” or “collectively bargain” has the meaning as defined by C.R.S. § 8-3.3-

102(2).

2.5

“Collective Bargaining Agreement” (“CBA”) has the meaning as defined by C.R.S. § 8-3.3-102(3).

2.6

“County” has the meaning as defined in C.R.S. § 8-3.3-102(6) and includes a county in the state

of Colorado, but does not include: (1) A city and county; (2) A county with a population of less

than 7,500 people pursuant to the official figures of the most recent United States decennial

census; (3) The state or any political subdivision of the state where the state or political

subdivision of the state acquires or operates a mass transportation system, or any carrier by

railroad, express company, or sleeping car company subject to the Railway Labor Act, 45 U.S.C

with a population of less

than 7,500 people pursuant to the official figures of the most recent United States decennial

census; (3) The state or any political subdivision of the state where the state or political

subdivision of the state acquires or operates a mass transportation system, or any carrier by

railroad, express company, or sleeping car company subject to the Railway Labor Act, 45 U.S.C.

§ 151 et seq., as amended; (4) A municipality; (5) A school district, a district charter school

pursuant to Part 1, Article 30.5, Title 22, or an institute charter school pursuant to Part 5, Article

30.5,Title 22; (6) Any district, business improvement district, special district created pursuant to

Title 32, authority, or other political subdivision of the state; or (7) A public hospital established by

a county pursuant to Part 3, Article 3, Title 25.

2.7

“County employee” has the meaning as defined by C.R.S. § 8-3.3-102(7): “a person employed by

a county, including a person whose employment with the county has ceased due to an unfair

labor practice or a discharge, if such discharge is subject to appeal under an applicable appeals

process.”

2.8

“Director” means the Director of the Division of Labor Standards and Statistics, and includes a

designee or agent selected by the Director to perform any delegable functions of the Director

pursuant to authority granted by any applicable provision of law, including but not limited to

C.R.S. § 8-1-103(1).

2.9

“Division” means the Division of Labor Standards and Statistics in the Colorado Department of

Labor and Employment.

2.10

“Employee organization” has the meaning as defined in C.R.S. § 8-3.3-102(12), includes any

organization of persons or entities that is not operated or organized for profit, and is synonymous

with “labor organization.”

2.11

“Exclusive representative” means the employee organization certified or recognized as the

representative of employees in a bargaining unit under COBCA

Labor and Employment.

2.10

“Employee organization” has the meaning as defined in C.R.S. § 8-3.3-102(12), includes any

organization of persons or entities that is not operated or organized for profit, and is synonymous

with “labor organization.”

2.11

“Exclusive representative” means the employee organization certified or recognized as the

representative of employees in a bargaining unit under COBCA.

2.12

“Mail” refers to first-class mail sent through the United States Postal Service, postage prepaid.

2.13

“Order” means any decision, rule, regulation, requirement, or standard promulgated by the

Director, as defined by C.R.S. § 8-1-101(11).

2.14

“Organizations,” for purposes of regulating deductions under C.R.S. § 8-3.3-104(4), include only

the exclusive representative and related entities. Charitable organizations unaffiliated with the

exclusive representative are not regulated by C.R.S. § 8-3.3-104(4).

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2.15

“Person” refers to one or more individuals, an employee, an employee organization, partnerships,

associations, corporations, legal representatives, trustees, or receivers.

2.16

“Post” means to display in conspicuous places frequented by employees on the employer’s

premises, at places customarily used for posting of employee notices, and where such notice

may be easily read during the workday, such as in break rooms, on employee bulletin boards,

and/or adjacent to time clocks, department entrances, and/or facility entrances, and on any

electronic bulletin boards or other means of electronic notice used by the employer.

2.17

“Showing of interest” means written or electronic documentation that provides evidence of county

employee membership or support for an employee organization for purposes of exclusive

representation

yee bulletin boards,

and/or adjacent to time clocks, department entrances, and/or facility entrances, and on any

electronic bulletin boards or other means of electronic notice used by the employer.

2.17

“Showing of interest” means written or electronic documentation that provides evidence of county

employee membership or support for an employee organization for purposes of exclusive

representation. For a “showing of interest,” county employees may submit an ink signature, a

scanned signature, an electronically drawn or generated signature, or their typed name

personally entered in the designated signature area. Any electronic signature acceptable under

the “Uniform Electronic Transactions Act,” Article 71.3 of Title 24, is sufficient for a “showing of

interest.”

2.18

“Unfair labor practices” are defined in C.R.S. § 8-3.3-115(1)-(6).

Rule 3. Filing, Service, and Deadlines

3.1

Documents shall be filed electronically, on a Division-approved form if one is available, pursuant

to these rules and any orders, instructions, and deadlines provided or published by the Division. If

the Division does not publish an applicable form or provide one to a party when the party intends

to file, or if a party cannot readily use such means for filing, the party may file documents by any

other means that provide the filing to the Division, including but not limited to email, other

electronic means, or mailing or hand-delivering paper copies. A document is considered “filed”

when received by the Division; any document received after 11:59 p.m. Mountain Time is

considered “filed” the next business day.

3.1.1

Any submission is considered “signed” or to have a “signature” if it has either an ink,

scanned, or electronically drawn or generated signature, or a typed name entered by the

party or their authorized representative in the signature area. By signing in any such

manner, the individual is deemed to have agreed and assented that the document is

signed by them

red “filed” the next business day.

3.1.1

Any submission is considered “signed” or to have a “signature” if it has either an ink,

scanned, or electronically drawn or generated signature, or a typed name entered by the

party or their authorized representative in the signature area. By signing in any such

manner, the individual is deemed to have agreed and assented that the document is

signed by them.

3.1.2

Handwritten signatures verifying identification and voter eligibility are required on

envelopes in mail ballot elections. Typed or electronically drawn or generated signatures

will not be accepted.

3.2

Except as otherwise provided by these rules, or by the Director, whenever service of a document

is required, service is made to a person or party by hand-delivery, mail, or transmission by

facsimile, or other electronic means. The email address or facsimile number on file with the

Division or furnished by the person or party shall be used for service. The current address on file

with the Division or the last known address of the person or party shall be used for mailing.

3.3

The calculation of any period of time prescribed or allowed by these rules shall be done in

accordance with C.R.S. § 2-4-108.

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3.4

Deadlines and schedules under these rules shall generally be set considering the goals of

COBCA, including, but not limited to: effective enforcement of all rights and responsibilities

provided by COBCA; providing all parties notice and opportunity to be heard; and conducting

elections as soon as practicable. Deadlines may be extended for “good cause” if the request is

made three days before the deadline, absent emergencies or exigent circumstances. In

considering whether good cause exists under these rules or applicable statutes for extensions of

deadlines, the Director will determine whether the reason is substantial and reasonable, based on

all the available information and circumstances pertaining to the matter.

Rule 4

nded for “good cause” if the request is

made three days before the deadline, absent emergencies or exigent circumstances. In

considering whether good cause exists under these rules or applicable statutes for extensions of

deadlines, the Director will determine whether the reason is substantial and reasonable, based on

all the available information and circumstances pertaining to the matter.

Rule 4. Certification or Decertification of Exclusive Representative

4.1

Certification of Exclusive Representative.

4.1.1

Petitions for the selection of an exclusive representative for a proposed bargaining unit

shall be filed with the Division using the approved form(s) and in compliance with any

instructions specified by the Division.

4.1.2

Petitions for the selection of an exclusive representative shall contain a showing of

interest of at least 30% of the county employees in the proposed bargaining unit.

4.1.3

Petitions may be filed by an employee organization seeking exclusive recognition, or by a

single employee, a group of employees, or the representative of either of them.

4.1.4

Upon receipt of a petition for selection of an exclusive representative, the Director shall

issue a notice identifying the petitioner and the proposed bargaining unit, explaining the

election process, and advising county employees of their rights under C.R.S. § 8-3.3-

103(1)-(3). The county shall distribute the notice to the county employees in the proposed

bargaining unit and shall post the notice in the manner described in Rule 2.16.

4.1.5

An employee organization voluntarily recognized by a county prior to July 1, 2023, may

obtain certification from the Division using forms approved by the Division, if any, and in

accordance with C.R.S. § 8-3.3-108(2)(a)-(c). An employee organization that does not

obtain such a certification shall nevertheless continue as the voluntarily recognized

exclusive representative for the duration of a CBA in effect as of July 1, 2023.

4.2

Intervention

by a county prior to July 1, 2023, may

obtain certification from the Division using forms approved by the Division, if any, and in

accordance with C.R.S. § 8-3.3-108(2)(a)-(c). An employee organization that does not

obtain such a certification shall nevertheless continue as the voluntarily recognized

exclusive representative for the duration of a CBA in effect as of July 1, 2023.

4.2

Intervention.

4.2.1

Within 10 days after the date the notice in Rule 4.1.4 is first distributed, other employee

organizations may seek to intervene in the certification process by filing a petition for

intervention with the Division using the approved form(s) and in compliance with any

instructions specified by the Division.

4.2.2

Petitions for intervention shall contain a showing of interest of at least 30% of the county

employees in the proposed bargaining unit. Disputes regarding the composition of the

bargaining unit will be resolved in accordance with Rule 4.4.

4.3

Decertification of Exclusive Representative.

4.3.1

A county employee or an employee organization may initiate decertification of the

exclusive representative.

4.3.2

A petition for decertification shall be filed with the Division using the approved form(s) and

in compliance with any instructions specified by the Division.

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4.3.3

The decertification petition shall contain a showing of interest demonstrating that at least

30% of the county employees in the appropriate bargaining unit either:

(A)

request decertification of the existing exclusive representative, or

(B)

authorize an employee organization other than the exclusive representative to

represent them for purposes of collective bargaining

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4.3.3

The decertification petition shall contain a showing of interest demonstrating that at least

30% of the county employees in the appropriate bargaining unit either:

(A)

request decertification of the existing exclusive representative, or

(B)

authorize an employee organization other than the exclusive representative to

represent them for purposes of collective bargaining.

4.3.4

If a collective bargaining agreement is in effect, the petition for decertification may be filed

no earlier than 90 days and no later than 60 days prior to the expiration of the collective

bargaining agreement; except that a petition for decertification may be filed any time after

the third year of a collective bargaining agreement that has a term of more than three

years.

4.3.5

If a collective bargaining agreement is not in effect, no action shall be taken on a

petition for decertification earlier than 12 months after the certification of an employee

organization as the exclusive representative.

4.4

Appropriate Bargaining Unit Determination.

4.4.1

Objections to bargaining unit composition shall be raised by a party or intervenor within

10 days after the county posts the notice of the petition as required in Rule 4.1.4, by

submitting a position statement that shall include any relevant arguments and supporting

evidence.

4.4.2

In any dispute regarding the determination of the appropriate bargaining unit based on

the factors listed in C.R.S. § 8-3.3-110, the parties may address, among other

considerations, (A) the community of interest and right to effective representation of the

petitioned-for employees, (B) the efficiency of county operations, and/or (C) the

promotion of harmonious, peaceful, and cooperative employment relations

pute regarding the determination of the appropriate bargaining unit based on

the factors listed in C.R.S. § 8-3.3-110, the parties may address, among other

considerations, (A) the community of interest and right to effective representation of the

petitioned-for employees, (B) the efficiency of county operations, and/or (C) the

promotion of harmonious, peaceful, and cooperative employment relations.

4.4.3

After receiving a position statement objecting under Rule 4.4.1, the Director may: invite or

order other parties to submit responses; order an investigation, and/or the exchange of

discovery; order parties to appear at any hearing(s); and/or issue findings of fact or law

prior to holding a hearing to determine the appropriate bargaining unit.

4.4.4

In the event of a hearing to determine the appropriate bargaining unit, the Director will

accept evidence on the factors listed in C.R.S. § 8-3.3-110, and Rule 4.4.2, and issue a

written determination of the appropriate bargaining unit, including findings of fact,

conclusions of law, and an order.

4.4.5

The Director may determine a unit to be an appropriate unit in a particular case, even

though some other unit might also be appropriate.

4.4.6

The Director’s decision regarding an appropriate bargaining unit is an administrative

determination rather than a final agency action, and therefore is not subject to appeal

until final certification of an election.

4.5

Showing of Interest Determination.

4.5.1

After composition of the bargaining unit has been deemed appropriate, either by consent

of the parties or by decision of the Director, the sufficiency of the showing of interest of

each petitioner shall be determined without disclosing the identity of any county

employee who participated in the showing of interest.

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er composition of the bargaining unit has been deemed appropriate, either by consent

of the parties or by decision of the Director, the sufficiency of the showing of interest of

each petitioner shall be determined without disclosing the identity of any county

employee who participated in the showing of interest.

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4.5.2

In determining the sufficiency of the showing of interest, the Director may request a list of

the employees in the bargaining unit from the county employer for comparison.

4.5.3

If any petition lacks sufficient showing of interest, the Director, in accordance with C.R.S.

§ 8-3.3-109(3), shall permit a 10-day opportunity for the petitioner to demonstrate a

sufficient showing of interest in the bargaining unit.

4.5.4

The sufficiency of the showing of interest in a representation election for exclusive

representation is an administrative determination made by the Director and is not subject

to challenge by any person.

4.6

Representation Elections (Certification or Decertification).

4.6.1

Within 10 days after the Director’s determination that a sufficient showing of interest has

been provided, the Director shall:

(A)

Order the county to provide to the petitioning employee organization(s) and the

Division, by three business days before the pre-election conference, unless the

Director orders an earlier date, a list of employees as required by C.R.S

fication or Decertification).

4.6.1

Within 10 days after the Director’s determination that a sufficient showing of interest has

been provided, the Director shall:

(A)

Order the county to provide to the petitioning employee organization(s) and the

Division, by three business days before the pre-election conference, unless the

Director orders an earlier date, a list of employees as required by C.R.S. § 8-3.3-

109(4)(a) and the Labor Peace and Industrial Relations (“LPIR”) Rules, 7 CCR

1101-1, Rules 5.3.2(C) and 5.3.3, and consistent with the requirements of those

statutory and rule provisions, unless the Director orders different procedures

based on the circumstances;

(B)

Establish procedures for a secret ballot election, conducted in-person, by mail,

and/or other means the Director determines to be appropriate, either by consent

or by order, after soliciting input from the parties at a pre-election conference or

otherwise; and

(C)

Order the county to distribute the election notice to all county employees in the

appropriate bargaining unit and to post the election notice in the manner

described in Rule 2.16.

4.6.2

Notices and ballots for any election shall be in English and Spanish if any party or eligible

voter credibly indicates, at or before the pre-election conference, that any voters need

Spanish-language ballots. Any party or eligible voter may request ballots in any other

language, and the Director shall endeavor to so provide if possible in the time provided.

4.6.3

The ballot for the secret ballot election shall contain:

(A)

The name of any employee organization submitting a petition with a sufficient

showing of interest as determined by the Director in accordance with Rule 4.5;

and

(B)

A choice of “no representation” for county employees to indicate they do not

desire to be represented by an employee organization

vide if possible in the time provided.

4.6.3

The ballot for the secret ballot election shall contain:

(A)

The name of any employee organization submitting a petition with a sufficient

showing of interest as determined by the Director in accordance with Rule 4.5;

and

(B)

A choice of “no representation” for county employees to indicate they do not

desire to be represented by an employee organization.

4.6.4

Representation elections shall follow the procedures of LPIR Rules 5.3.2(C)–5.3.3, 5.5.3–

5.5.5, and 5.6.2–5.8.3, unless the Director orders different procedures based on the

circumstances.

4.6.5

The Director shall notify, or cause notice to be provided to, all parties and all covered

employees of the certified results of the secret ballot election.

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4.6.6

In order to prevail in an election, a choice on the ballot must receive a majority of the

valid ballots cast, except:

(A)

In a certification election in which only the petitioning employee organization and

“no representation” appear on the ballot, “no representation” prevails in the event

of a tie vote.

(B)

In a decertification election in which only the incumbent employee organization

and “no representation” appear on the ballot, the incumbent employee

organization prevails in the event of a tie vote.

4.6.7

Within 28 days after a secret ballot election with multiple employee organizations on the

ballot, a runoff election shall be held if there is no majority of ballots cast for any

employee organization and the “no representation” choice did not achieve a majority.

(A)

A runoff election shall be between the two employee organizations that received

the most ballots cast in the initial representation election. “No representation” will

not be a choice in the runoff election.

(B)

A runoff election shall be held no later than 28 days after the initial representation

election and shall be conducted as a second balloting limited to the two runoff

options

majority.

(A)

A runoff election shall be between the two employee organizations that received

the most ballots cast in the initial representation election. “No representation” will

not be a choice in the runoff election.

(B)

A runoff election shall be held no later than 28 days after the initial representation

election and shall be conducted as a second balloting limited to the two runoff

options.

(C)

Only if an employee organization receives a majority of the ballots cast in the

runoff election will the Director certify the employee organization as the exclusive

representative of all county employees in the appropriate bargaining unit. In the

event of a tie, neither employee organization has achieved a majority and neither

employee organization will be certified as the exclusive representative.

4.6.8

Within seven days after certification of the results of an election, any party may file

objections to the conduct of the election or to conduct affecting the results of the election.

Absent timely objections, the certification shall constitute final agency action subject to

judicial review pursuant to C.R.S. § 24-4-106.

(A)

The objections must contain a short statement of the reasons for the objections

and be accompanied by a written offer of proof identifying:

(i)

each witness the party would call to testify concerning the issue; and

(ii)

a summary of each witness’s testimony.

(B)

Upon a showing of good cause, the Director may extend the time for filing the

offer(s) of proof. Objections without supporting evidence may be dismissed.

(C)

The party filing objections shall serve a copy of the objections, but not the offer(s)

of proof, on the other parties. The objecting party shall file a signed statement

with the Division affirming that the objections have been served on the other

parties and stating the date and method of service. The other parties shall have

10 days from the date of service to respond to any objection. Responses shall be

served on all other parties and filed with the Division

, but not the offer(s)

of proof, on the other parties. The objecting party shall file a signed statement

with the Division affirming that the objections have been served on the other

parties and stating the date and method of service. The other parties shall have

10 days from the date of service to respond to any objection. Responses shall be

served on all other parties and filed with the Division. The Division filing must be

accompanied by the same offer of proof required by subsection (A) of this rule.

(D)

The Division will only investigate challenged ballots if the challenged ballots are

sufficient in number to affect an election’s outcome.

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(E)

If the Director or a designated hearing officer finds that misconduct affected the

outcome of the election, the Director shall invalidate the election and order a

subsequent election for the county employees in the appropriate bargaining unit

within 28 days after the finding. This order is an administrative determination,

rather than a final agency action, and therefore is not subject to appeal until after

final certification of the subsequent election.

Rule 5. Unfair Labor Practices

5.1

Unfair Labor Practice Complaints.

5.1.1

Unfair labor practice complaints shall be filed on the designated form provided by the

Division, and shall comply with any other Division instructions as to the information and/or

documentation required by the Division.

(A)

The aggrieved party filing an unfair labor practice complaint shall be designated

the charging party. The party against whom a complaint is filed shall be

designated the respondent(s).

(B)

Either party may designate an authorized representative to act on their behalf in

the Division’s complaint and/or appeal process in accordance with Rule 2.1

ion and/or

documentation required by the Division.

(A)

The aggrieved party filing an unfair labor practice complaint shall be designated

the charging party. The party against whom a complaint is filed shall be

designated the respondent(s).

(B)

Either party may designate an authorized representative to act on their behalf in

the Division’s complaint and/or appeal process in accordance with Rule 2.1.

(C)

An unfair labor practice complaint (or charge) must be received by the Division

within six months after the date on which the charging party knew or reasonably

should have known of the alleged unfair labor practice.

(D)

The charging party shall set forth a clear and concise statement of the facts

constituting the unfair labor practice and the statutes allegedly violated.

(E)

Failure to respond in a timely manner to requests from the Division for additional

supporting information and/or documentation may result in dismissal of the unfair

labor practice complaint.

5.1.2

The Division will evaluate unfair labor practice complaints to determine if the Division has

jurisdiction over the alleged conduct and if sufficient allegations and evidence has been

shown from which an unfair labor practice may be reasonably inferred.

5.1.3

If the unfair labor practice complaint provides insufficient evidence, the Division will notify

the charging party and may request additional information and/or documentation.

5.1.4

A charging party may withdraw an unfair labor practice complaint at any time prior to

issuance of a determination.

5.2

Notice of Unfair Labor Practice Complaint to Respondent(s).

5.2.1

After determining that a charging party’s unfair labor practice complaint contains sufficient

allegations and evidence that, if proven true, would state a claim of an unfair labor

practice, the Division shall give notice of the allegations and request an answer be filed

by each respondent

me prior to

issuance of a determination.

5.2

Notice of Unfair Labor Practice Complaint to Respondent(s).

5.2.1

After determining that a charging party’s unfair labor practice complaint contains sufficient

allegations and evidence that, if proven true, would state a claim of an unfair labor

practice, the Division shall give notice of the allegations and request an answer be filed

by each respondent.

5.2.2

The respondent shall file an answer responding to each allegation in the complaint, and

attach any documentation or evidence the respondent wishes the Division to consider in

reviewing the complaint, within 21 days of the date the Division sends a copy of the

complaint to the respondent. The Division may exercise discretion to shorten the

response deadline.

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Division of Labor Standards and Statistics

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5.2.3

Upon receiving a request in writing to the Division stating the reason an extension is

required, the Division may, at its discretion, extend the period for the respondent to file an

answer to the complaint for good cause in accordance with Rule 3.4.

5.2.4

Upon written request, at the Division’s discretion, other parties or entities may be

designated as intervenors or may be joined as charging parties or respondents.

5.3

Investigation and Determination of Unfair Labor Practice Complaints.

5.3.1

Upon receipt of the unfair labor practice complaint, the answer, and any supplemental

information or documentation, the Division shall determine whether additional

investigation is required. In the event further investigation is required, investigatory

methods used by the Division may include, but are not limited to:

(A)

Interviews of the employer, employee(s), and other parties;

(B)

Information gathering, fact-finding, and reviews of written submissions; and

(C)

Any other lawful techniques that enable the Division to assess whether an unfair

labor practice occurred

ation is required. In the event further investigation is required, investigatory

methods used by the Division may include, but are not limited to:

(A)

Interviews of the employer, employee(s), and other parties;

(B)

Information gathering, fact-finding, and reviews of written submissions; and

(C)

Any other lawful techniques that enable the Division to assess whether an unfair

labor practice occurred.

5.3.2

During the investigation, if information is provided to the Division by a source requesting

confidentiality, and that information is used only as a basis for procuring other evidence,

but not offered as evidence itself, then the source shall remain confidential.

5.3.3

The Division may exercise its discretion to have an investigation sequenced and/or

divided into two or more stages on discrete questions of liability or relief (e.g.,

bifurcation), yielding two or more determinations and/or phases of the investigation.

5.3.4

Where a complaint or investigation for violation of these rules or the statutes they enforce

has been filed or commenced, all parties shall preserve all relevant documents until final

disposition and until the expiration of the statutory period within which a person aggrieved

may bring a civil action.

5.3.5

The burden of proof for establishing an unfair labor practice is on the charging party, who

must establish by a preponderance of the evidence that an unfair labor practice has been

committed.

5.3.6

The Division shall make a determination as to whether an unfair labor practice has been

committed and issue written findings and orders, which shall be sent to all parties. Absent

a timely administrative appeal, the determination shall constitute final agency action, and

the final decision of the Director, subject to judicial review pursuant to C.R.S. § 24-4-106

practice has been

committed.

5.3.6

The Division shall make a determination as to whether an unfair labor practice has been

committed and issue written findings and orders, which shall be sent to all parties. Absent

a timely administrative appeal, the determination shall constitute final agency action, and

the final decision of the Director, subject to judicial review pursuant to C.R.S. § 24-4-106.

5.3.7

Determinations by the Division may include the following remedies, as the findings of the

determination warrant, and pursuant to the Division’s investigative and enforcement

authority as authorized by COBCA and/or other statutes:

(A)

appropriate administrative remedies;

(B)

actual damages related to employee organization dues;

(C)

back pay, including benefits;

(D)

reinstatement of the county employee with the same seniority status the

employee would have had but for the unfair labor practice violation;

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(E)

other remedies to address any loss suffered by a county employee or a group of

county employees from unlawful conduct by a county;

(F)

declarative or injunctive relief or provisional remedies, including temporary

restraining orders or preliminary injunctions; and

(G)

any other remedies or relief authorized by law, including but not limited to C.R.S.

Title 8, Articles 1, 4, 6, and 13.5.

5.4

Unfair Labor Practice Appeals.

5.4.1

Either the charging party or respondent may file an administrative appeal within 35 days

from the date of the Division’s determination. A valid appeal is a written statement

explaining the basis for the appeal that is timely filed with the Division, is not frivolous,

and has been signed by the appellant or the appellant’s authorized representative. An

appeal is frivolous if it fails to allege an error that could result in the reversal or

modification of the determination or otherwise is manifestly insufficient or futile

rmination. A valid appeal is a written statement

explaining the basis for the appeal that is timely filed with the Division, is not frivolous,

and has been signed by the appellant or the appellant’s authorized representative. An

appeal is frivolous if it fails to allege an error that could result in the reversal or

modification of the determination or otherwise is manifestly insufficient or futile. The

Division’s initial determination remains operative during the appeal, unless an appeal

filing requests, and then is granted, any stay.

5.4.2

On appeal, findings of fact are reviewable for clear error, while findings of law are

reviewable de novo.

5.4.3

Upon receipt of the appeal, the Division will notify the parties of the date of the hearing

and any interim deadlines, and send a copy of the appeal and a copy of the record of its

investigation to the parties by mail or email. All evidence submitted to the Division during

the investigation is part of the record on appeal and need not be resubmitted.

5.4.4

The hearing officer (including an Administrative Law Judge) shall have the power and

authority to call, preside at, and conduct hearings on the appeal, including the power to

administer oaths and affirmations, order and take depositions, certify to official acts, and

issue subpoenas to compel the attendance of witnesses and the production of books,

papers, correspondence, memoranda, and other records deemed necessary as evidence

in connection with a disputed determination. The hearing officer shall make a decision on

each relevant issue raised, including findings of fact, conclusions of law, and an order.

5.4.5

Parties who timely file a valid appeal of the Division’s determination will be afforded an

administrative appeal hearing before a Division hearing officer. Parties may be required

to appear by telephone or other remote means

ion with a disputed determination. The hearing officer shall make a decision on

each relevant issue raised, including findings of fact, conclusions of law, and an order.

5.4.5

Parties who timely file a valid appeal of the Division’s determination will be afforded an

administrative appeal hearing before a Division hearing officer. Parties may be required

to appear by telephone or other remote means.

5.4.6

The parties may submit new testimonial evidence, which is defined as any evidence that

is elicited through the statements of individual witnesses, to the hearing officer in

accordance with deadlines imposed by the Division. New evidence must be sent to all

other parties to the appeal. Failure to send all new evidence to all other parties to the

appeal may result in the evidence being excluded from the record. The parties may

submit new documentary or other non-testimonial evidence in accordance with deadlines

imposed by the Division and upon showing “good cause,” which may be assessed based

on any relevant factors, including but not limited to:

(A)

That the new evidence was previously not known or obtainable, despite diligent

evidence gathering efforts by the party offering the new evidence;

(B)

That the party failed to receive fair notice of the investigation or of a key filing by

another party or by the Division to which the new evidence is responsive;

CODE OF COLORADO REGULATIONS

7 CCR 1103-16

Division of Labor Standards and Statistics

)

That the new evidence was previously not known or obtainable, despite diligent

evidence gathering efforts by the party offering the new evidence;

(B)

That the party failed to receive fair notice of the investigation or of a key filing by

another party or by the Division to which the new evidence is responsive;

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(C)

That factors outside the control of the party prevented a timely action or

interfered with the opportunity to act, except that the acts and omissions of a

party’s authorized representative are considered the acts and omissions of the

party and are not considered to be a factor outside the party’s control as intended

by this rule;

(D)

That a determination raised a new issue or argument that cannot be responded

to adequately without the new evidence;

(E)

That, at the investigation stage, the party offering new evidence requested more

time to submit evidence, yet was denied, and in the hearing officer’s judgment (1)

the need for more time was legitimate and did not reflect neglect by the party, (2)

the denial of the request for more time was unwarranted, and (3) exclusion of the

evidence would cause substantial injustice to the party; and/or

(F)

That failure to admit the new evidence otherwise would cause substantial

injustice and did not arise from neglect by the party.

5.4.7

An appeal may, at the discretion of the hearing officer, be sequenced and/or divided into

two or more stages on discrete questions of liability or relief (e.g., bifurcation), yielding

two or more decisions and/or phases of the appeal.

Rule 6. Judicial Review

6.1

The certification of an election or the determination of a ULP complaint by the Director, a hearing

officer, or an Administrative Law Judge (“ALJ”) constitutes a final agency action subject to judicial

review pursuant to C.R.S. § 24-4-106. The Division shall promptly provide all parties with a copy

of the decision of the Director, hearing officer, or ALJ by mail or email.