Colorado § 8-3-110 - Prevention of unfair labor practices.

§ 8-3-110. Prevention of unfair labor practices.

(1) Any controversy concerning unfair labor practices may be submitted to the division in the manner and with the effect provided in this article; but nothing in this article shall prevent the pursuit of equitable or legal relief in courts of competent jurisdiction, nor shall it be any ground for refusal of such relief that all of the administrative remedies provided in this article before the division have not been exhausted.

(2) Upon the filing with the division by any party in interest of a complaint in writing on a form provided by the division charging any person with having engaged in any specific unfair labor practice, the division shall mail a copy of such complaint to all persons so charged. Any other person claiming interest in the dispute or controversy, as an employer, an employee, or representative thereof, shall be made a party upon application. The director may bring in additional parties by service of a copy of the complaint. Only one such complaint shall issue against a person with respect to a single controversy, but any such complaint may be amended in the discretion of the director at any time prior to the issuance of a final order based thereon. The persons so complained of have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the notice of hearing. The director shall fix a time for the hearing on such complaint, which shall not be less than ten nor more than forty days after the filing of such complaint. Notice shall be given to the complainant and to each party named in the pleadings by service on him personally or by mailing a copy thereof to him at his last-known post office address at least ten days before such hearing. In case a party in interest is located without the state and has no known post office address within this state, a copy of the complaint and copies of all notices shall be filed in the office of the secretary of state and shall also be sent by registered mail to the last-known post office address of such party. Such filing and mailing shall constitute sufficient service with the same force and effect as if served upon the party located within this state. Such hearing may be adjourned from time to time in the discretion of the director and hearings may be held at such places as the director designates. The director may initiate and file any such complaint of his own motion or at the request of any interested person. Should the director file such a complaint on request, he shall not disclose the name or interest of the person upon whose request the complaint is filed, if in his judgment such disclosure would tend to prejudice the interest of any person who may be affected by any order that the director may enter upon such complaint.

(3) The director has the power to issue subpoenas and administer oaths. Depositions may be taken in the manner prescribed by the Colorado rules of civil procedure, and all such depositions shall be taken upon commissions issued by the director. No person shall be excused from attending and testifying or from producing books, records, correspondence, documents, or other evidence in obedience to the subpoena of the director on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture under the laws of the state of Colorado. No individual shall be prosecuted or subjected to any penalty or forfeiture for any transaction, matter, or thing concerning which he may testify or produce evidence, documentary or otherwise, before the director in obedience to a subpoena issued by him. An individual so testifying shall not be exempt from prosecution and punishment for perjury in the first degree committed in so testifying.

(4) Any person who willfully and unlawfully fails or neglects to appear or testify or to produce books, papers, and records as required, upon application to a district court, shall be ordered to appear before the director to testify or produce evidence if so ordered, and failure to obey such order of the court may be punished by the court as a contempt thereof.

(5) Each witness who appears before the director by his order or subpoena shall receive for his attendance the fees and mileage provided for witnesses in civil cases in courts of record, which shall be audited and paid by the state in the same manner as other expenses are audited and paid, upon presentation of properly verified vouchers approved by the director and charged to the proper appropriation for the division.

(6) A complete record shall be kept of all proceedings had before the director, and all testimony and proceedings shall be taken down by the reporter appointed by the director. Such proceedings shall not be governed by the technical rules of evidence, but by such rules as are prescribed by the director for administrative hearings.

(7) After the final hearing the director shall promptly make and file his findings of fact upon all of the issues involved in the controversy and his order which shall state his determination as to the rights of the parties. Pending the final determination of any controversy before him, the director, after hearing, may make interlocutory findings and orders, which may be enforced in the same manner as final orders. Final orders may dismiss the charges or require the person complained of to cease and desist from the unfair labor practices found to have been committed; suspend his rights, immunities, privileges, or remedies granted or afforded by this article as the director may specify, but not more than one year; and require an employer to take such affirmative action, including reinstatement of employees with or without pay, as the director may deem proper. Any order may further require such person to make reports from time to time showing the extent to which he has complied with the order.

(8) The director may authorize a deputy, referee, or administrative law judge appointed pursuant to part 10 of article 30 of title 24, C.R.S., to take evidence and to make findings and report them to the director. Any party in interest who is dissatisfied with the findings or order of the director may seek judicial review pursuant to section 24-4-106, C.R.S.

(9) The director, on his own motion, may set aside, modify, or change any of his findings or orders at any time within twenty days from the date thereof if he discovers any mistake therein or upon the ground of newly discovered evidence.

(10) If any party fails or neglects to obey an order of the director while the same is in effect, the director may file a complaint in the district court of the county wherein such person resides or usually transacts business for the enforcement of such order for appropriate temporary relief or restraining order, and shall certify and file in the court the record in the proceedings, including all documents and papers on file in the matter, and pleadings and testimony upon which such order was entered, and the findings and order of the director. Upon the filing the director shall cause notice thereof to be served upon such party by mailing a copy to his last-known post office address, and thereupon the court has jurisdiction of the proceedings and of the question determined therein. Said action may thereupon be brought on for hearing upon such order by the director serving ten days' written notice upon the respondent, subject, however, to the Colorado rules of civil procedure for a change of the place of trial or the calling in of another judge. Upon such hearing the court may confirm, modify, or set aside the order of the director and enter an appropriate decree. No objection that was not urged before the director shall be considered by the court unless the failure or neglect to urge such objection is excused because of extraordinary circumstances. The findings of fact made by the director, if supported by credible and competent evidence in the record, shall be conclusive. The court in its discretion may grant leave to adduce additional evidence before the court where such evidence appears to be material and reasonable cause is shown for failure to have adduced such evidence in the hearing before the director. The director may modify his findings as to facts, or make new findings by reason of such additional evidence, and he shall file such modified or new findings with the same effect as his original findings and shall file his recommendations, if any, for the modification or setting aside of his original order. The court's judgment and decree shall be final; except that the same shall be subject to appellate review as provided by law.

(11) to (14) Repealed.

(15) Substantial compliance with the procedures of this article is sufficient to give effect to the orders of the director, and they shall not be declared inoperative, illegal, or void for any omission of a technical nature in respect thereto.

(16) The right of any person to proceed under this section and section 8-3-121 shall not extend beyond six months from the date of the specific act or unfair labor practice alleged.

(17) The director also has the power by himself and on his own motion to initiate proceedings in the manner provided in this section. It is likewise the duty of the director to so initiate a proceeding in his own name whenever complaint is made to him by any party in interest if it appears to the director that the disclosure of the name of the complainant, either as an employee or group of employees or as an employer or agent or representative of the employer, would jeopardize the rights or interests or standing of any party in interest. The proceedings so initiated by the director shall be conducted in the same manner and have the same effect as provided for in this section.

(18) (a) The director has the power and it is his duty in carrying out the public policy of the state, either upon his own initiative or upon the complaint of any party in interest or any organization or persons representing any public interests, if there is picketing which in the opinion of the director might tend to lead to riots, disturbances, or assaults or disturb public peace or injure the property or persons of individuals, to limit the number of pickets that may be permitted; and to prescribe the distance from any plant, entrance, or exit where such picketing may be permitted; and to otherwise prescribe limits to such picketing, including not only the number of persons picketing but also the manner or method thereof; and to prevent the use of weapons of any kind or threats or intimidation.

(b) Upon the failure or refusal of any person against whom any such order or direction is issued to comply with such order or direction, the district court of the district wherein the picketing takes place or the violation occurs, upon application of the director, may issue injunctive relief in the manner provided in the Colorado rules of civil procedure for courts of record in Colorado.

Source: L. 43: p. 403, § 8. CSA: C. 97, § 94(8). CRS 53: § 80-5-8. C.R.S. 1963: § 80-4-8. L. 69: p. 596, § 76. L. 72: p. 561, § 27. L. 77: (8) amended, p. 305, § 1, effective June 10; (16) amended, p. 423, § 4, effective June 29. L. 86: (6), (8), and (15) amended, p. 471, § 26, effective July 1; (11), (12), (13), and (14) repealed, p. 502, § 125, effective July 1. L. 87: (8) amended, p. 937, § 6, effective March 13.

Cross references: For fees and mileage of witnesses, see §§ 13-33-102 and 13-33-103; for the taking of depositions, see C.R.C.P. 26-37; for punishment of contempt, see C.R.C.P. 107; for issuance of injunctions, see C.R.C.P. 65.

ANNOTATION

I. General Consideration.

II. Federal Preemption.

IV. Post Hearing.

I. GENERAL CONSIDERATION.

Annotator's note. Cases included in the annotations to this section which refer to the industrial commission were decided prior to the 1969 amendment to this section which placed the duty of enforcing and administrating the labor peace act on the director of the division of labor instead of the industrial commission.

Municipalities do not have the power to adopt ordinances regulating activities connected with labor disputes. City of Golden v. Ford, 141 Colo. 472, 348 P.2d 951 (1960).

This act does not contain a comprehensive administrative scheme that precludes assertion of claim for wrongful discharge in violation of public policy; accordingly, the filing of a claim under this act does not preclude litigation of other causes of action arising out of the same circumstances. Ferris v. Local 26, 867 P.2d 38 (Colo. App. 1993).

II. FEDERAL PREEMPTION.

Law reviews. For article, "The Extent to Which Taft-Hartley Act Has Superseded State Labor Laws", see 28 Dicta 47 (1951). For article, "Federal Preemption Under the NLRA: A Rule In Search of A Reason", see 62 Den. U. L. Rev. 531 (1985).

Federal authority is solitary and exclusive in situations where both state and federal laws forbid certain labor conduct and provide machinery for enforcement. Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 139 Colo. 236, 337 P.2d 953 (1959).

Thus the state cannot supply a congruous yet rival remedy to that furnished by the federal act. Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 139 Colo. 236, 337 P.2d 953 (1959).

And there can be no concurrency of remedy, because the federal remedy, when applicable, is preemptive and solitary. Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 139 Colo. 236, 337 P.2d 953 (1959).

The labor management relations act in essence establishes exclusion of state power in matters involving an unfair labor practice affecting commerce. Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 139 Colo. 236, 337 P.2d 953 (1959).

And exclusive primary jurisdiction to pass on a union's picketing is delegated by the Taft-Hartley Act to the national labor relations board. Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 139 Colo. 236, 337 P.2d 953 (1959).

Notwithstanding, power is vested in the national labor relations board to "cede" jurisdiction to a state agency of a case having to do with a labor dispute affecting commerce if the state has a statute applicable to the problem not inconsistent with the federal act. Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 139 Colo. 236, 337 P.2d 953 (1959).

But until cession is made, the state is without such power. Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 139 Colo. 236, 337 P.2d 953 (1959).

But there remains in the state power to regulate picketing. Although much of the area of control and regulation of labor disputes has been preempted by federal legislation, there remains in the states, within the confines of constitutional limitations, certain power to regulate picketing and to protect public safety in so doing. City of Golden v. Ford, 141 Colo. 472, 348 P.2d 951 (1960).

For Taft-Hartley Act is not exclusive in controlling violence. With the passage of the Taft-Hartley Act in 1947, Congress recognized that labor unions also might commit unfair labor practices to the detriment of employees, and prohibited, among other practices, coercion of employees who wish to refrain from striking; but this amendment did not eliminate a state's power to control picketing activities through state labor statutes, as section 8 (b)(1) of the Taft-Hartley Act is not the exclusive method of controlling violence even against employees, much less violence interfering with others approaching an area where a strike is in progress. UMW v. Golden Cycle Corp., 134 Colo. 140, 300 P.2d 799 (1956).

Nor should the fact that a union commits a federal unfair labor practice while engaging in violent conduct prevent state from taking steps to stop the violence; for the states are the natural guardians of the public against violence, and it is the local communities that suffer most from the fear and loss occasioned by coercion and destruction. Hence, an act of congress cannot be interpreted to leave them powerless to avert such emergencies without compelling directions to that effect. UMW v. Golden Cycle Corp., 134 Colo. 140, 300 P.2d 799 (1956).

Furthermore, where union activity is not protected by the federal act, it is not immunized from state action. Denver Bldg. & Constr. Trades Council v. Shore, 132 Colo. 187, 287 P.2d 267 (1955).

State laws adopted pursuant to 29 U.S.C. § 164(b) represent an area where state laws will control. Ruff v. Kezer, 199 Colo. 182, 606 P.2d 441 (1980).

III. COMPLAINTS.

A. Initiation of Complaint.

B. Hearing.

C. Remedies.

A. Initiation of Complaint.

The industrial commission is authorized to investigate every charge which alleges an unfair labor practice. People ex rel. Shaffer v. Teamsters Local 961, 175 Colo. 187, 486 P.2d 10 (1971).

B. Hearing.

In ascertaining whether an employee was discharged because of union activities the industrial commission may consider circumstantial, as well as direct, evidence, but when circumstantial evidence is relied on there must be evidence of circumstances from which the commission may conclude with reasonable certainty that the employee was discharged because of union activity. Bennett's Restaurant v. Indus. Comm'n, 127 Colo. 271, 256 P.2d 891 (1953).

And the fact that some of the evidence relating to a discriminatory discharge is hearsay affords no basis for objecting to the finding. Bennett's Restaurant v. Indus. Comm'n, 127 Colo. 271, 256 P.2d 891 (1953).

However, mere suspicion or conjecture alone is not sufficient on which to base a finding of discriminatory discharge. Bennett's Restaurant v. Indus. Comm'n, 127 Colo. 271, 256 P.2d 891 (1953).

The division of labor's duty to hold hearings and to make decisions determining the rights of parties necessarily and implicitly includes the authority to interpret statutes pertinent to the dispute. Denver Local 2-477 v. Metro Wastewater Reclamation Dist., 7 P.3d 1042 (Colo. App. 1999).

C. Remedies.

Reinstatement of employees wrongfully discharged will not compel an employer to operate in a manner that would be contrary to business judgment with a totalitarian result of confiscation where no such result appears from the record, for the business judgment of employers must always be limited by the applicable requirements of statutes and the very purpose of the labor peace act is to restrict the business judgment of both employers and employees in the promotion of the welfare of industry and of the public. UMW v. Sunlight Coal Co., 129 Colo. 374, 270 P.2d 776 (1954).

However, an order for reinstatement of such employees does not necessarily require their continuance for any specified time in future employment. Rather, they are to return to the same status which existed at the time of their discharge, subject to termination of their employment upon valid grounds not contrary to the provisions of the labor peace act at any time thereafter. UMW v. Sunlight Coal Co., 129 Colo. 374, 270 P.2d 776 (1954).

IV. POST HEARING.

A complaint for review has to be filed within 30 days under former provisions of section unless the time was extended by reason of prejudice "because of exceptional delay in the receipt of a copy of order of the commission". Indus. Comm'n v. Sheard, 170 Colo. 76, 459 P.2d 127 (1969).

And misadvice of attorney that there is 60 days to seek review was not a ground for extension under this section. Indus. Comm'n v. Sheard, 170 Colo. 76, 459 P.2d 127 (1969).

By failing to seek review within 30 days the right of appeal was lost. Indus. Comm'n v. Sheard, 170 Colo. 76, 459 P.2d 127 (1969).

On appeal the question to be resolved was whether the findings were supported by any credible and competent evidence in the record. Bennett's Restaurant v. Indus. Comm'n, 127 Colo. 271, 256 P.2d 891 (1953).

And court errs in making its own findings. The court erred in making its own findings where the matter was not one in which the testimony was short and undisputed. Indus. Comm'n v. Sheard, 170 Colo. 76, 459 P.2d 127 (1969).

V. REGULATION OF PICKETING.

A. In General.

B. Injunctions.

A. In General.

The state, through its general assembly and courts, can reasonably regulate picketing and rights of assembly with proper constitutional safeguards for those affected thereby, for picketing is not an absolute right at all times and places. City of Golden v. Ford, 141 Colo. 472, 348 P.2d 951 (1960).

And a bona fide dispute must be shown to exist to allow picketing. Int'l Bhd. of Teamsters v. Publix Cab Co., 119 Colo. 208, 202 P.2d 154 (1949).

Declaratory judgment as to validity of subsection (18) refused absent a concrete situation. Am. Fed'n of Labor v. Reilly, 113 Colo. 90, 115 P.2d 145 (1944).

B. Injunctions.

Law reviews. For article, "Labor Injunctions Under the Colorado Labor Peace Act", see 26 Dicta 63 (1949).

While investigating unfair labor practices, the director has jurisdiction to issue restraining orders or injunctions to enjoin strikes and lockouts, but not peaceful picketing. People ex rel. Shaffer v. Teamsters Local 961, 175 Colo. 187, 486 P.2d 10 (1971).

For this section does not provide for issuance of injunctions to restrain peaceful picketing. People ex rel. Shaffer v. Teamsters Local 961, 175 Colo. 187, 486 P.2d 10 (1971); CF&I Steel, L.P. v. United Steel Workers of Am., 990 P.2d 1124 (Colo. App. 1999), aff'd, 23 P.3d 1197 (Colo. 2001).

Subsection (1) of this section, when read together with §§ 8-3-108(2)(a) and 8-3-118(1), allows the trial court to enjoin the union and its members from engaging in an unfair labor practice. CF&I Steel, L.P. v. United Steel Workers of Am., 990 P.2d 1124 (Colo. App. 1999), aff'd, 23 P.3d 1197 (Colo. 2001).