7 CCR 1103-12-4 - Unfair Labor Practices
4.1 Unfair Labor
Practice Complaints
4.1.1 The 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.
Either party may designate an authorized representative to act on its behalf in
filing a complaint with the Division. The party may designate an authorized
representative by filing the Division-approved form with the Division. The
party may revoke the authorized representative's authority by contacting the
Division in writing.
4.1.2 An
unfair labor practice complaint must be received by the Division no later than
six months after the date that the alleged unfair labor practice
occurred.
4.1.3 Unfair labor
practice complaints shall be filed on the designated form provided by the
Division. The charging party shall set forth a clear and concise statement of
the facts constituting the unfair labor practice.
4.1.4 The Division will evaluate unfair labor
practice complaints to determine if the Division has jurisdiction over the
alleged conduct and if sufficient evidence has been shown from which an unfair
labor practice may be reasonably inferred.
4.1.5 If the unfair labor practice complaint
provides insufficient evidence, the Division will notify the charging party and
may request additional information.
4.1.6 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.
4.1.7 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 the respondent.
4.1.8 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 calendar days of the date the Division sends a copy of the
complaint to the respondent.
4.1.9
In any stage of any Division investigation, proceeding, or other action, if
information is provided to the Division by a source requesting or otherwise
warranting confidentiality, then the source shall remain confidential if that
information is used:
(1) as a basis for
procuring other evidence, not offered as evidence itself;
(2) as evidence of liability, but not to
establish individual relief for the source of the information; or
(3) in other circumstances in which
confidentiality is necessary and appropriate. Any such confidential source is
unlawful to disclose (unless the source consents) in any administrative or
judicial proceeding, in response to any records or information request, or in
any other manner, in order to effectuate statutory requirements. To the extent
applicable, the provisions and practices regarding confidential sources stated
in the Wage Protection Rules,
7 CCR
1103-7 (as amended and modified) are incorporated by
reference.
4.1.10 Upon
receiving a request in writing to the Division stating the reason required for
an extension, the Division may, in its discretion, extend the period for the
respondent to file an answer to the complaint for good cause.
4.1.11 Upon written request, other parties or
entities may be designated as intervenors or may be joined as charging parties
or respondents, at the Division's discretion.
4.1.12 Upon receipt of the complaint, answer,
and any supplemental documents, the Division shall make a determination as to
whether an unfair labor practice has been committed and issue findings and
orders.
4.1.13 The burden of proof
for establishing an unfair labor practice is on the charging party.
4.1.14 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.
4.1.15 A charging
party may withdraw an unfair labor practice complaint at any time prior to
issuance of a determination.
4.2 Unfair Labor Practice Appeals
4.2.1 An appellant, either the charging party
or respondent, may file an appeal within 35 calendar days from the date of the
Division's determination. A valid appeal is a written statement that is timely
filed with the Division, explains the basis for the appeal, and has been signed
by the appellant or the appellant's authorized representative.
4.2.2 On appeal, questions of fact are
reviewable for clear error, while questions of law are reviewable de
novo.
4.2.3 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 electronic mail. All evidence
submitted to the Division as part of the investigation is part of the record on
appeal and need not be resubmitted.
4.2.4 The hearing officer 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.
4.2.5 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.
4.2.6 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;
(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
designate;
(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 evidence
otherwise would cause substantial injustice and did not arise from neglect by
the party.
4.2.7 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.
4.2.8 After
the hearing, a decision shall be issued on each relevant issue raised,
including findings of fact, conclusions of law, and orders, and shall be served
on all parties by mail, or electronic mail, as consistent with applicable law.
Absent timely modification by the Director, the decision shall constitute final
agency action, and the final decision of the Division. A party may seek
judicial review of the decision pursuant to C.R.S. §
24-50-1115(1).
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
4.1 Unfair Labor Practice Complaints
4.1.1 The 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. Either party may designate an authorized representative to act on its behalf in filing a complaint with the Division. The party may designate an authorized representative by filing the Division-approved form with the Division. The party may revoke the authorized representative's authority by contacting the Division in writing.
4.1.2 An unfair labor practice complaint must be received by the Division no later than six (6) months after the date that the alleged unfair labor practice occurred.
4.1.3 Unfair labor practice complaints shall be filed on the designated form provided by the Division. The charging party shall set forth a clear and concise statement of the facts constituting the unfair labor practice.
4.1.4 The Division will evaluate unfair labor practice complaints to determine if the Division has jurisdiction over the alleged conduct and if sufficient evidence has been shown from which an unfair labor practice may be reasonably inferred.
4.1.5 If the unfair labor practice complaint provides insufficient evidence, the Division will notify the charging party and may request additional information.
4.1.6 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.
4.1.7 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 the respondent.
4.1.8 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 twenty-one (21) calendar days of the date the Division sends a copy of the complaint to the respondent.
4.1.9 In any Division investigation, proceeding, or other action, 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, not offered as evidence itself, then the source shall remain confidential. Any such confidential source is unlawful to disclose (unless the source consents) in any administrative or judicial proceeding, in response to any records or information request, or in any other manner, in order to effectuate statutory requirements. This rule parallels and adopts the identical Division provisions and practices in existing Wage Protection Rule 4.7.
4.1.10 Upon receiving a request in writing to the Division stating the reason required for an extension, the Division may, in its discretion, extend the period for the respondent to file an answer to the complaint for good cause.
4.1.11 Upon written request, other parties or entities may be designated as intervenors or may be joined as charging parties or respondents, at the Division's discretion.
4.1.12 Upon receipt of the complaint, answer, and any supplemental documents, the Division shall make a determination as to whether an unfair labor practice has been committed and issue findings and orders.
4.1.13 The burden of proof for establishing an unfair labor practice is on the charging party.
4.1.14 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.
4.1.15 A charging party may withdraw an unfair labor practice complaint at any time prior to issuance of a determination.
4.2 Unfair Labor Practice Appeals
4.2.1 An appellant, either the charging party or respondent, may file an appeal within thirty-five (35) calendar days from the date of the Division's determination. A valid appeal is a written statement that is timely filed with the Division, explains the basis for the appeal, and has been signed by the appellant or the appellant's authorized representative.
4.2.2 On appeal, questions of fact are reviewable for clear error, while questions of law are reviewable de novo.
4.2.3 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 via U.S. mail or email. All evidence submitted to the Division as part of the investigation is part of the record on appeal and need not be resubmitted.
4.2.4 The hearing officer 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.
4.2.5 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.
4.2.6 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;
(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 designate;
(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 evidence otherwise would cause substantial injustice and did not arise from neglect by the party.
4.2.7 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.
4.2.8 The hearing officer's decision constitutes a final agency action pursuant to C.R.S. § 24-4-106. The Division shall promptly provide all parties with a copy of the hearing officer's decision via U.S. mail or email. A party may seek judicial review of the decision pursuant to C.R.S. § 24-50-1115(1).