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
6 - Unfair Labor Practices
Universal Citation: 7 CO Code Regs 1101-1 ยง 6
Current through Register Vol. 47, No. 17, September 10, 2024
6.1 Filing an Unfair Labor Practice Complaint. Complaints may be filed in the Division or in court; the Division will not exercise jurisdiction over complaints that were or are being adjudicated in court.
6.1.1 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 an unfair labor practice 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
2.2.
(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.
(F) The Director may
initiate, file, and investigate any such complaint on their own initiative, or
at the request of any interested party. The name or interest of any such party
shall not be disclosed. Decisions under this rule are within the discretion of
the Director's authority to enforce and administer the LPA, these rules, and
other applicable statutes and rules.
6.1.2 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.
6.1.3 If the unfair labor practice complaint
provides insufficient evidence, the Division will notify the charging party and
may request additional information and/or documentation. The date the charging
party provides all the information and/or documentation necessary to support
the complaint will be used to calculate the time prescribed in C.R.S. §
8-3-110(2) for
the hearing, if any.
6.1.4 A
charging party may withdraw an unfair labor practice complaint at any time
prior to issuance of a determination.
6.2 Notice of Unfair Labor Practice Complaint to Respondent(s).
6.2.1 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.
6.2.2 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.
6.2.3 Upon
receiving a request in writing 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
4.4.
6.2.4 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.
6.3 Investigation and Initial Determination of Unfair Labor Practice Complaints.
6.3.1 Upon receipt of the unfair labor
practice complaint, the answer, and any supplemental information or
documentation, the Director 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.
6.3.2 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.
6.3.3
The Director may exercise discretion to adjourn the hearing prescribed in
C.R.S. §
8-3-110(2) to
permit additional time for submissions by the parties; extensions for good
cause or by consent; evaluation of the submissions and supporting information
and/or documentation; and to issue orders disposing of the complaint without a
hearing.
6.3.4 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.
6.3.5 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.
6.3.6 The burden of
proof to establish 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.
6.3.7 The Division
shall make a determination as to whether an unfair labor practice has been
committed and report its recommended findings and proposed orders to the
Director, which shall be sent to all parties.
6.3.8 Absent a request for a hearing within
35 days of the determination, the recommended findings of fact and conclusions
of law, and proposed orders of the Division, shall be deemed those of the
Director and shall constitute final agency action. A party may seek judicial
review of the final agency decision pursuant to C.R.S. §
24-4-106.
6.3.9 Determinations by the Division may
include the following proposed remedies, as supported by the recommended
findings:
(A) order(s) to cease the unfair
labor practice, effectuate compliance by modifying or rescinding existing
policies, practices, or agreements, and/or otherwise redress direct or indirect
consequences of unfair labor practices, as authorized by the LPA,
the IRA, and/or other statutes on Division investigative and enforcement
authority;
(B) periodic reports
showing compliance with the orders;
(C) suspension of rights, immunities,
privileges, or remedies granted or afforded by the LPA for one year pursuant to
C.R.S. §
8-3-110(7);
(D) termination of an AUA agreement pursuant
to C.R.S. §
8-3-108(1)(c)(III)(A);
(E) reinstatement of employee(s) with or
without pay, as deemed appropriate; and
(F) any other remedies or relief authorized
by law, including but not limited to C.R.S. Title 8, Articles 1, 3, 4, 6, and
13.5.
6.4 Unfair Labor Practice Hearing.
6.4.1 Either
the charging party or respondent may request a hearing within 35 days after the
Division's initial determination of an unfair labor practice complaint. A valid
hearing request is a written statement that is timely filed with and received
within 35 days bythe Division, explains the basis for the request, and has been
signed by a party or authorized representative.
6.4.2 The hearing officer (including an
Administrative Law Judge) shall have the power and authority to:
(A) review the recommendations and proposed
orders in the initial determination de novo;
(B) call, preside at, and conduct hearings,
which may be held by phone or other remote means;
(C) certify to official acts, administer
oaths and affirmations, order and take depositions, or otherwise question
witnesses;
(D) issue subpoenas to
compel the attendance of witnesses and the production of books, papers,
correspondence, memoranda, and other records deemed necessary as
evidence;
(E) sequence and/or
divide the hearing into two or more stages on discrete questions of liability
or relief (e.g., bifurcation), yielding two or more hearings,
decisions, and/or phases of the hearing; and
(F) issue interim orders requiring the
parties to identify or narrow the disputed issues requiring a
hearing.
6.4.3 Upon
receipt of the hearing request, the Division will notify the parties of the
date of the hearing and any interim deadlines, and send a copy of the request
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 and need not be resubmitted.
6.4.4 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 provided to all other
parties to the unfair labor practice claim. New evidence that is not provided
to all other parties may be excluded from the record under consideration at the
hearing. 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;
(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 the initial 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.
6.4.5 After
the hearing, a decision shall be issued, and served to all parties, on each
relevant issue raised, including findings of fact, conclusions of law, and
orders. Absent timely modification by the Director, the decision shall
constitute final agency action, and the final decision of the Director, subject
to judicial review pursuant to C.R.S. §
24-4-106.
Disclaimer: These regulations may not be the most recent version. Colorado may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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