Code of Colorado Regulations
1100 - Department of Labor and Employment
1101 - Division of Labor Standards and Statistics (Includes 1103 Series)
7 CCR 1101-1 - RULES OF PROCEDURE TO THE COLORADO LABOR PEACE ACT AND INDUSTRIAL RELATIONS ACT
5 - Elections

Universal Citation: 7 CO Code Regs 1101-1 ยง 5

Current through Register Vol. 47, No. 17, September 10, 2024

5.1 Types of Elections.

5.1.1 Collective Bargaining Unit Election. A collective bargaining unit or representation election determines whether a labor organization shall be certified (or decertified) as the exclusive representative of all employees in a bargaining unit.
(A) Certification. The labor organization shall be selected as the exclusive representative for the proposed collective bargaining unit if a majority (over 50%) of all eligible employees cast ballots (the majority turnout requirement of C.R.S. § 8-3-107(1)), and a majority of those votes are cast in favor of representation (the majority rules requirement of C.R.S. § 8-3-104(4)). If both majorities are attained, the Division shall certify the labor organization as the exclusive representative.

(B) Decertification. The same procedures for certification apply to decertification of an existing labor organization.

(C) Collective bargaining units selected pursuant to C.R.S. § 8-3-107 and certified by the Director may be clarified or modified, as follows:
(1) Questions of interpretation as to coverage of particular employees or positions in an existing unit may be submitted to the Director. Notice of the clarification request shall be provided to the employer, the exclusive representative of the certified unit with the coverage question, and any employees whose coverage is in question. Any parties notified of the request may respond within 14 days, absent an extension for good cause shown. The Director's clarification is a final agency action under C.R.S. § 24-4-106.

(2) Requests to modify the scope of a unit (e.g., to add additional employees not already covered, or to subtract already-covered employees) will be determined by secret ballot election following the procedures for representation elections.

5.1.2 All-Union Agreement Election. An all-union agreement election determines whether an employer and labor organization are authorized to negotiate an all-union agreement, or union security clause, during collective bargaining.
(A) Authorization for an all-union agreement is approved by an affirmative vote of at least a majority of all employees eligible to vote, or three-quarters or more of employees who actually vote, whichever is greater. The election results shall be construed as granting or denying authorization to the employer and labor organization to enter any form of all-union agreement, except as provided in C.R.S. § 8-3-109(3), in initial and subsequent collective bargaining agreements between the same parties.

(B) Revocation of an All-Union Agreement.
(1) Petitions to revoke an all-union agreement may be filed by the employer or 20% of the covered employees. Petitions shall be filed between 105 and 120 days prior to the end or third anniversary of the collective bargaining agreement. The Director shall verify the petition's sufficiency, including petitioners' employment, status, and eligibility without disclosing the identity of the petitioning employees.

(2) The Director may conduct an election for revocation of an all-union agreement within a collective bargaining unit only once during the term of a collective bargaining agreement or once every three years in the case of agreements for a term of over three years.

(3) Revocation of an all-union agreement is approved by an election following the same procedures as an all-union agreement election, with all employees covered by the all-union agreement eligible to vote. The Division must complete the election within 60 days prior to the end or third anniversary of the collective bargaining agreement.

(C) Construction Industry. Certification and ratification of all-union agreements in the construction industry.
(1) A request for certification of an all-union agreement, entered into by an employer and a labor organization, and limited to employees engaged in the building and construction industry, may be filed by an employer, employee, or labor organization, or their authorized representative, as provided in C.R.S. §§ 8-3-108(1)(c)(II)(B) and 8-3-109(3).

(2) A request for certification shall include a copy of the signed all-union agreement or, if a signed copy is unavailable, an unsigned copy with a declaration under penalty of perjury that the parties executed the agreement.

(3) In the case of an all-union agreement, including multi-employer groups or associations, the request for certification shall include a list of the members of the group or association that delegated their bargaining rights, and/or the names of employers that, although they have not delegated bargaining rights to a group or association, individually signed such agreements, together with the addresses of such employers.

(D) If the all-union agreement complies with the provisions of C.R.S. § 8-3-109(3), the Director will certify the agreement and furnish written notice to the requesting party and all other parties of interest. The original certification of the all-union agreement shall be retained by the Division.

(E) If the Director does not certify the all-union agreement, the Director shall give written notice to the requesting party, signatories to the agreement, and all other parties of interest stating the reasons for not certifying, or set the matter for hearing prior to issuing such determination.

(F) Within two weeks of the date of certification by the Director, the employer, or in the case of multi-employer associations, each member or signatory employer, shall post and distribute written notice to all employees covered by the certified all-union agreement indicating that the agreement has been ratified and certified pursuant to the provisions of the Labor Peace Act. Under C.R.S. § 8-3-108(1)(c)(II)(D), the notice shall explicitly state that 20% of the covered employees may demand an all-union agreement election within 45 days of the Director's certification following the same procedures for an all-union agreement election.Proof that notice was given shall be filed with the Director within 20 days.

5.2 Election Petitions.

5.2.1 Election petitions shall be filed with the Division using the approved form(s) and in compliance with any instructions specified by the Division. For an all-union agreement election, certification of the collective bargaining unit by the NLRB or the Division, or other written evidence of voluntary recognition, shall be submitted with the petition.

5.2.2 Unless otherwise specified, election petitions may be filed by a single employee, a group of employees, an employer, or any person or organization with permission from one or more employees to file a petition on their behalf.

5.2.3 The Division shall not disclose the names of any employees who sign or file election petitions themselves or through another person or entity.

5.2.4 The fact that one election has been held shall not prevent the holding of another election of the same type among the same group of employees, if it appears to the Director that sufficient reasons exist (except for an election to revoke an all-union agreement, as provided in Rule 5.1.2). The Director will presume that sufficient reasons exist if all the following apply:
(A) One year or more has passed since the conclusion of balloting and voting in a prior election of the same type;

(B) The proposed election is not during the term of a CBA with a term of under three years or within the first three years of a longer CBA; and

(C) The petitioner is not a party to the CBA currently in effect.

5.3 Processing Election Petitions and Issuing Notice of Petition for Election.

5.3.1 Upon filing of an election petition, the Director will determine whether the Division has authority to conduct the election and evaluate the sufficiency of the petition including any supporting documentation (e.g., NLRB certification). The Director may request additional information or documentation in support of the petition. The determination of the sufficiency of an election petition under this rule is an administrative determination, not a final agency action, and therefore is not subject to appeal until after final certification of an election, pursuant to Rule 5.8.4.

5.3.2 When the election petition is deemed sufficient, the Director shall:
(A) Issue a notice of petition identifying the bargaining unit and the petitioner, unless confidential; explaining the election process; and advising employees of their rights under the LPA. The employer shall post and distribute such notice in accordance with Rule 3.

(B) Schedule a pre-election conference with the parties for the purpose of setting the election date(s) and time(s); determining election procedures; and identifying the employees eligible to vote. In the event the parties are unable to agree, the Director shall set the date(s) and time(s) of election and determine the election procedures. Elections may be conducted in-person, by mail, and/or by other means the Director determines to be appropriate.

(C) Direct the employer to furnish a tentative poll list of the employees eligible to vote in the election to the Division, the labor organization, and any other interested party before the pre-election conference. The employee list shall include full employee names, work locations, shifts, job titles or classifications, home addresses, personal email addresses, home telephone numbers, and personal cell phone numbers (in spreadsheet format) as of the last date of the payroll period immediately preceding the date the petition was filed, unless otherwise directed by the Director.

5.3.3 In the event the employer or other party fails or refuses to furnish requested information for purposes of determining the employees eligible to vote, or for finalizing a proper poll list, the Director may demand a voter list based on an employer's or other party's obligation to furnish information under the IRA.

5.4 Challenges to Election, Collective Bargaining Unit, or Qualified Voters.

5.4.1 Within one week after posting and distributing the notice of petition, employees shall notify the Division of their desires to be included or excluded from the bargaining unit proposed, or their requests for a separate bargaining unit by craft, division, department, or plant.

5.4.2 Any party challenging an election petition, the proposed bargaining unit, or the employees eligible to vote as shown on the tentative poll list shall file a position statement with the Division, and serve a copy to all other parties, at least three business days prior to the pre-election conference. The Director may:
(A) resolve the challenge and proceed with the pre-election conference; or

(B) reschedule the pre-election conference if any other party requests to file a written response or if additional information is necessary to resolve the challenge.

5.4.3 The resolution of a challenge under this rule is an administrative determination, not a final agency action, and therefore is not subject to appeal until after final certification of an election, pursuant to Rule 5.8.4.

5.5 Notice of Election and Qualified Voters.

5.5.1 At least one week before the established election date, the Director shall issue a notice of election with the tentative poll list. The employer shall post and distribute the notice of election with the tentative poll list in accordance with Rule 3.

5.5.2 The notice of election shall describe the election to be conducted (i.e., CBU or AUA); identify the petitioner, unless confidential; specify when (i.e., dates and times), where, and how the secret ballot election will be conducted; specify the bargaining unit and the employees eligible to vote; and advise employees of their rights under the LPA and these rules.
(A) For collective bargaining unit (representation) elections, the notice of election shall include a description of the proposed bargaining unit or units to be formed (e.g., included and excluded unit classifications).

(B) For an all-union agreement election, all employees in the unit proposed to be covered by an all-union agreement shall be eligible to vote.

5.5.3 At least 72 hours before the election, or as ordered by the Director, the employer shall, and other parties may, furnish any updates to the tentative poll list reflecting the employees eligible to vote in the election to the Division, the labor organization, and any other interested party.

5.5.4 The Director shall certify a final poll list of qualified voters not later than 24 hours nor earlier than 48 hours preceding the time of balloting (or the mailing of ballots). The certified poll list shall then be posted with the notice of election and shall be available in the office of the Director and to any interested party.

5.5.5 At any time prior to certification of a final poll list, the Director may order any party to provide further information the Director deems relevant to finalizing the poll list.

5.6 Conduct of Elections.

5.6.1 The Director shall prepare suitable notices and ballots for any election held under these rules.
(A) For a representation election, the secret ballot shall contain the name of any eligible labor organization(s) seeking to be the exclusive representative, and a choice of "no representation" for employees who do not desire representation.

(B) 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.

5.6.2 The Director may establish more than one suitable polling place for the same election, and may either provide a separate suitable ballot box and election officials for each place, or establish different times for reception of ballots by the same election officials at different places. In either event, the notice posted at each polling place shall specify the day and hours when ballots may be cast. The Director will establish sufficient safeguards to ensure that multiple ballots will not be cast by the same voter.

5.6.3 Each eligible labor organization and each employer may designate one election observer; additional observers may be permitted upon good cause shown to the Director at least three days before the election. The Director, the Director's designees or agents, and the designated observers shall be the only individuals allowed to observe the check-in of qualified voters as compared to the certified poll list and remain at the polling place during balloting. Supervisors, management, and paid union officials shall not serve as election observers but may be present for counting of ballots.

5.6.4 Copies of the certified polling list shall be in the possession of the Director during balloting. Only employees named on the certified poll list and currently employed shall be entitled to vote at the election.

5.6.5 If any employee is unable to prepare the ballot due to insufficient literacy or familiarity with the language(s) of the ballots, or for any other reason, the employee may be assisted in preparing the ballot by the Director.

5.6.6 Electioneering shall not be permitted within 50 feet of the polling place for in-person balloting and is defined as:
(1) any communication, whether verbal, written, electronic, or in any other format,

(2) which unambiguously refers to a candidate, and is disseminated to the members of the eligible voting electorate in a representation or decertification election conducted under these rules.

5.6.7 For in-person balloting, at the time specified in the election notice for the closing of balloting, the Director shall receive the ballots of those employees present at the polling place, and no others.

5.7 Challenges to Ballots.

5.7.1 Designated election observers may challenge the right of any person to vote upon the grounds of either: identity (i.e., whether they are or are not a person on the certified poll list); or ineligibility due to separation from employment (other than an unlawful termination) or other job change. If the validity of a challenge cannot be resolved at the time of balloting, then the challenged ballot may be cast.

5.7.2 Any challenged ballot will be retained by the Director in a sealed envelope. After securing all ballots to ensure election integrity and secrecy of the votes, the Director shall receive evidence as to voter eligibility from the parties and attempt to resolve any challenges.
(A) The Director need not resolve whether the challenged ballots should be counted under this rule if the challenged ballots are insufficient in number to affect the results of the election.

(B) If insufficient evidence is presented for the Director to determine whether to count the challenged ballots, all ballots cast will be sealed in the ballot box and secured by the Director, and the parties will have one week to submit any additional evidence that may assist the Director in resolving challenged ballots.

(C) If no decision is reached after consideration of the parties' submissions, the Director shall cause the matter to be heard at a hearing for resolution.

(D) Challenged ballots determined by the Director to be invalid shall be declared void and disregarded. Challenged ballots determined by the Director to be valid shall be mixed with unchallenged ballots for counting.

5.7.3 The resolution of a challenge under this rule is an administrative determination, not a final agency action, and therefore is not subject to appeal until after final certification of an election, pursuant to Rule 5.8.4.

5.8 Counting of Ballots and Certification of Results.

5.8.1 At the pre-election conference or before the conclusion of balloting, the Director shall determine and notify the parties of a time and place at which the ballots will be counted. Each eligible labor organization and each employer may designate one observer for the ballot count; additional observers may be permitted upon good cause shown to the Director at least three days before the ballot counting.

5.8.2 The Director shall disregard, and record as a void ballot, any ballot (A) on which the vote(s) cast cannot be reliably determined (e.g., blank ballots, conflicting marks, inconsistent votes, and/or lack of clear indication of voter intent), or (B) that the Director finds to be spurious or otherwise legally invalid.

5.8.3 After the counting of ballots, the Director shall prepare election certificates containing a tabulation of the ballots cast and certifying the results of the election, which shall be served on all parties. Ballots will be maintained in a sealed container at the Division until one month after:
(A) expiration of the deadline to file and serve any appeal or other legal challenge to the outcome or any aspect of the election; or

(B) final judgment has been rendered on the merits in any appeal or other legal challenge to the election and all appeal rights have been exhausted, whichever is later.

5.8.4 Within one week after certification of the election results, any party may file an appeal in writing with the Director to review the certification based on error or fraud with regard to the results certified therein. The Director will serve a copy of the appeal on all interested parties, giving the non-filing parties one week to file and serve written responses. The Director may extend these deadlines for good cause shown in accordance with Rule 4.4 . The Director may set the matter for hearing, require additional submissions and/or evidence from any party, or issue a final decision without a hearing based on the filings. Absent timely modification by the Director, the certification shall constitute final agency action, and the final decision of the Director, subject to judicial review pursuant to C.R.S. § 24-4-106.

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