Code of Colorado Regulations
1100 - Department of Labor and Employment
1101 - Division of Labor Standards and Statistics (Includes 1103 Series)
7 CCR 1103-16 - COUNTY COLLECTIVE BARGAINING (COBCA) RULES
4 - Certification or Decertification of Exclusive Representative
Universal Citation: 7 CO Code Regs 1103-16 ยง 4
Current through Register Vol. 47, No. 17, September 10, 2024
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.
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.
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.
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.
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.
§
8-3.3-109(4)(a)
and the Labor Peace and Industrial Relations ("LPIR") Rules, 7 CCR 1101-1,
Rules 5.3.2 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 topost 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.
4.6.4 Representation elections shall follow
the procedures of LPIR Rules 5.3.2 -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.
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.
(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. 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.
(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.
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