Second Regular Session
Sixty-first General Assembly
LLS NO. 980652.01 MCV
SENATE BILL 98123
STATE OF COLORADO
BY SENATOR Congrove
BUSINESS AFFAIRS & LABOR
A BILL FOR AN ACT
CONCERNING THE PROHIBITION OF DISCRIMINATION AGAINST
EMPLOYEES BASED UPON LABOR UNION PARTICIPATION.
Bill Summary
(Note: This summary applies to this bill as introduced
and does not necessarily reflect any amendments that may be subsequently
adopted.)
Prohibits an employer from requiring any person, as a condition of employment, to become or remain a member of any labor organization or to pay any dues, fees, or other assessments to such an organization. Prohibits an employer from discriminating against an employee because of failure of the employee to become or remain a member of any labor organization or to pay any dues, fees, or other assessments to such an organization.
Establishes civil and criminal penalties for violations.
Declares provisions of the article to be severable.
Be it enacted by the General Assembly of the State of Colorado:
SECTION 1. Title 8, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW ARTICLE to read:
ARTICLE 3.5
Membership in Labor Organizations
83.5101. Legislative declaration. IT IS HEREBY DECLARED TO BE THE PUBLIC POLICY OF THE STATE OF COLORADO THAT ALL PERSONS SHALL HAVE, AND SHALL BE PROTECTED IN THE EXERCISE OF, THE RIGHT TO FREELY FORM, JOIN, OR ASSIST LABOR ORGANIZATIONS OR TO REFRAIN FROM SUCH ACTIVITY WITHOUT FEAR OF PENALTY OR REPRISAL.
83.5102. Definitions. AS USED IN THIS ARTICLE, UNLESS THE CONTEXT OTHERWISE REQUIRES:
(1) "EMPLOYER" MEANS ANY INDIVIDUAL, CORPORATION, ASSOCIATION, ORGANIZATION, ENTITY, OR STATE OR LOCAL GOVERNMENT THAT EMPLOYS ONE OR MORE PERSONS IN ANY CAPACITY, INCLUDING ANY PERSON EMPLOYED TO PERFORM AGRICULTURAL LABOR.
(2) "LABOR ORGANIZATION" OR "LABOR UNION" MEANS ANY ORGANIZATION, AGENCY, EMPLOYEE REPRESENTATION COMMITTEE, OR PLAN THAT EXISTS FOR THE PURPOSE, WHOLLY OR IN PART, OF DEALING WITH EMPLOYERS CONCERNING GRIEVANCES, LABOR DISPUTES, WAGES, RATES OF PAY, HOURS OF WORK, OR OTHER CONDITIONS OF EMPLOYMENT.
83.5103. Prohibited activities. ON AND AFTER JULY 1, 1998, NO EMPLOYER SHALL REQUIRE ANY PERSON, AS A CONDITION OF EMPLOYMENT OR OF THE CONTINUATION OF EMPLOYMENT, TO BECOME OR REMAIN A MEMBER OF ANY LABOR ORGANIZATION OR TO PAY ANY DUES, FEES, ASSESSMENTS, OR OTHER SUMS OF MONEY TO A LABOR ORGANIZATION. ON AND AFTER JULY 1, 1998, NO EMPLOYER SHALL DISCRIMINATE AGAINST ANY EMPLOYEE BECAUSE THE EMPLOYEE HAS FAILED OR REFUSED TO BECOME OR REMAIN A MEMBER OF ANY LABOR ORGANIZATION OR HAS FAILED OR REFUSED TO PAY ANY DUES, FEES, ASSESSMENTS, OR OTHER SUMS OF MONEY TO A LABOR ORGANIZATION.
83.5104. Void agreements. ANY WRITTEN OR ORAL AGREEMENT, UNDERSTANDING, OR PRACTICE BETWEEN AN EMPLOYER AND A LABOR ORGANIZATION THAT IS IN VIOLATION OF THE PROVISIONS OF THIS ARTICLE IS VOID.
83.5105. Penalty. ANY PERSON, EMPLOYER, LABOR ORGANIZATION, OR AGENT OR REPRESENTATIVE OF AN EMPLOYER OR LABOR ORGANIZATION WHO DIRECTLY OR INDIRECTLY IMPOSES UPON ANY PERSON ANY REQUIREMENT PROHIBITED BY THIS ARTICLE IS GUILTY OF A MISDEMEANOR AND, UPON CONVICTION THEREOF, SHALL BE PUNISHED BY A FINE OF NOT MORE THAN ONE THOUSAND DOLLARS, IMPRISONMENT IN THE COUNTY JAIL FOR NOT MORE THAN NINETY DAYS, OR BOTH SUCH FINE AND IMPRISONMENT FOR EACH OFFENSE.
83.5106. Civil remedies. (1) ANY PERSON INJURED AS A RESULT OF ANY VIOLATION OF THE PROVISIONS OF THIS ARTICLE OR WHO WOULD BE INJURED AS A RESULT OF A THREATENED VIOLATION MAY BRING SUIT IN A COURT OF COMPETENT JURISDICTION TO OBTAIN INJUNCTIVE RELIEF AGAINST THE VIOLATOR OR PERSON THREATENING VIOLATION. A PERSON INJURED AS A RESULT OF A VIOLATION OF THIS ARTICLE MAY BRING SUIT IN A COURT OF COMPETENT JURISDICTION TO RECOVER THE DAMAGES RESULTING FROM SUCH VIOLATION. IN ANY ACTION OR PROCEEDING TO ENFORCE A PROVISION OF THIS ARTICLE, THE COURT SHALL AWARD TO ANY PERSON INJURED OR THREATENED WITH INJURY BY A VIOLATION OF THIS ARTICLE REASONABLE ATTORNEY FEES AS A PART OF THE COURT COSTS.
(2) THE REMEDIES PROVIDED BY THIS SECTION ARE INDEPENDENT OF AND IN ADDITION TO ANY OTHER PENALTY OR REMEDY ESTABLISHED BY THIS ARTICLE.
83.5107. Investigation of complaints prosecution of violations. THE ATTORNEY GENERAL AND THE DISTRICT ATTORNEY IN EACH JUDICIAL DISTRICT SHALL INVESTIGATE ANY COMPLAINTS OF VIOLATION OF THIS ARTICLE, PROSECUTE ANY PERSON VIOLATING ANY OF THE PROVISIONS OF THIS ARTICLE, AND TAKE ACTIONS NECESSARY TO ENSURE EFFECTIVE ENFORCEMENT OF THIS ARTICLE.
83.5108. Applicability of article new contracts extension or renewal of existing contracts. THE PROVISIONS OF THIS ARTICLE SHALL APPLY TO ANY CONTRACT OR AGREEMENT ENTERED INTO ON OR AFTER JULY 1, 1998, AND TO ANY EXTENSION OR RENEWAL OF A CONTRACT OR AGREEMENT EXISTING ON SUCH DATE OR ENTERED INTO ON OR AFTER SUCH DATE.
83.5109. Severability. IF ANY PROVISION OF THIS ARTICLE OR THE APPLICATION OF THIS ARTICLE TO ANY PERSON OR CIRCUMSTANCE IS HELD INVALID, SUCH INVALIDITY SHALL NOT AFFECT OTHER PROVISIONS OR APPLICATIONS OF THIS ARTICLE THAT CAN BE GIVEN EFFECT WITHOUT THE INVALID PROVISION OR APPLICATION, AND TO THIS END THE PROVISIONS OF THIS ARTICLE ARE DECLARED TO BE SEVERABLE.
SECTION 2. 83108 (1) (c) and (1) (e), Colorado Revised Statutes, are amended to read:
83108. What are unfair labor practices. (1) It is an unfair labor practice for an employer, individually or in concert with others, to:
(c) (I) Encourage
or discourage membership in any labor organization, employee agency,
committee, association, or representation plan by discrimination
in regard to hiring, tenure, or other terms or conditions of employment;
except that an employer shall not
be prohibited from entering into an allunion agreement with
the representatives of his employees in a collective bargaining
unit if such allunion agreement is approved by the affirmative
vote of at least a majority of all the employees eligible to vote
or threequarters or more of the employees who actually voted,
whichever is greater, by secret ballot in favor of such allunion
agreement in an election provided for in this paragraph (c) conducted
under the supervision of the director. Where the collective bargaining
unit involved is currently recognized under sections 8 or 9 of
the "National Labor Relations Act", as amended, (49
Stat. 449; 61 Stat. 136), or where the collective bargaining unit
involved is currently recognized by reason of certification by
the director or the national labor relations board, or where such
units were so recognized at the time of an election provided for
in this paragraph (c), there is and shall be deemed to have been
no need for a certification election as a precedent to an election
provided for in this paragraph (c) in such collective bargaining
unit on the issue of an allunion agreement. The employees
in such a recognized or certified unit within this state shall
be the only employees eligible to vote in an election provided
for in this paragraph (c) held in such unit.
(II) (A) Any
agreement as defined in section 83104 (1) between
an employer and a labor organization in existence on June 29,
1977, which has not been voted upon by the employees covered by
it may, by written mutual agreement of such employer and labor
organization, be ratified and upon such ratification shall be
filed with the director. Any agreement as defined in section 83104
(1) between an employer and a labor organization in existence
on June 29, 1977, which has not been ratified and filed, as provided
in this subparagraph (II), shall not be legal, valid, or enforceable
during the remaining term of that labor contract unless and until
either the employer, the labor organization, or at least twenty
percent of the employees covered by such agreement file a petition
upon forms provided by the division, demanding an election submitting
the question of the allunion agreement to the employees
covered by such agreement and said agreement is approved by the
affirmative vote of at least a majority of all the employees eligible
to vote or threequarters or more of the employees who actually
voted, whichever is greater, by secret ballot in favor of such
allunion agreement in an election provided for in this paragraph
(c) conducted under the supervision of the director.
(B) Upon filing of such instrument
of ratification with the director, the director shall certify
that such agreement complies with the provisions of section 83104
(1) notwithstanding the absence of any other election requirements
of this article, and by virtue of such ratification and certification,
such agreement shall be deemed legal, valid, and enforceable to
the extent permitted under the provisions of this article, subject
to the provisions of subsubparagraph (D) of this subparagraph
(II).
(C) Within two weeks after the
certification by the director provided for in subsubparagraph
(B) of this subparagraph (II), the employer which is a party to
such agreement shall post or give written notice to all employees
covered by such agreement on the date of ratification of the fact
that the agreement has been ratified and certified pursuant to
the provisions of this subparagraph (II) and of the right of such
employees to file a petition demanding an election as provided
in subsubparagraph (D) of this subparagraph (II). Proof
of giving of notice shall be filed with the director within twenty
days after the certification by the director provided for in subsubparagraph
(B) of this subparagraph (II).
(D) Within fortyfive days
after the certification by the director provided for in subsubparagraph
(B) of this subparagraph (II) twenty percent of the employees
covered by such agreement may file a petition, upon forms provided
by the division, demanding an election submitting the question
of ratification of such agreement to the employees covered by
such agreement. If ratification of the agreement is approved
by the affirmative vote of at least a majority of all the employees
eligible to vote or threequarters or more of the employees
who actually voted, whichever is greater, in said election, the
agreement shall be conclusively deemed ratified. Such election
shall be held as promptly as possible following the filing of
the petition. In the event that a certified contract expires
or is terminated prior to the conducting of such an election,
such certification shall be applicable to any subsequent agreement
between the same parties until such election may be held.
(III) The
director shall declare any such allunion agreement terminated
whenever:
(A) He finds that the labor organization
involved unreasonably has refused to receive as a member any employee
of such employer, and any person interested may come before the
director, as provided in section 83110, and ask the
performance of this duty; or
(B) The employer or twenty percent
of the employees covered by such agreement file a petition with
the director on forms provided by the division seeking to revoke
such allunion agreement and, in an election conducted under
the supervision of the director, there is not an affirmative vote
of at least a majority of all the employees eligible to vote or
threequarters or more of the employees who actually voted,
whichever is greater, in such election by secret ballot in favor
of such allunion agreement. Such petition may only be filed
within a time period between one hundred twenty and one hundred
five days prior to the end of the collective bargaining agreement
or prior to a triennial anniversary of the date of such agreement,
and the division must complete said election within sixty days
prior to the termination or triennial anniversary of said collective
bargaining agreement. The director may conduct an election within
a collective bargaining unit no more often than once during the
term of any collective bargaining agreement or once every three
years in the case of agreements for a period longer than three
years.
(IV) The
director shall provide a means by which employees may submit confidential
petitions for an election under this paragraph (c), a means for
verifying the employment, status, and eligibility of petitioners,
and a means for determining the sufficiency of such petitions
with respect to the twenty percent signature requirement, all
of which shall be accomplished without disclosing the identification
of such petitioners, except as allowed under subparagraph (V)
of this paragraph (c). This duty shall apply to petitions filed
pursuant to subparagraph (II) (A), (II) (D), or (III) (B) of this
paragraph (c).
(V) No
officer or employee of the division shall disclose the names of
any signers to a petition or disclose how any person voted in
an election to any person outside the division except pursuant
to a court order or subpoena issued by a governmental authority
or a court, and any such officer or employee who violates such
nondisclosure provisions or who refuses to call an election pursuant
to this paragraph (c) or prevents or conspires to prevent such
call of an election commits a class 2 misdemeanor and shall be
punished as provided in section 181106, C.R.S.
(e) Enter into an allunion agreement;
except in the manner provided in paragraph
(c) of this subsection (1);
SECTION 3. 83109 (1) and (3), Colorado Revised Statutes, are amended to read:
83109. What are not unfair
labor practices. (1) It is
not an unfair labor practice for any employer to refuse to grant
a closed shop or allunion agreement. or
to accede to any proposal therefor as provided in this article.
(3) It shall
not be an unfair labor practice for an employer engaged primarily
in the building and construction industry to enter into an allunion
agreement, except an agreement providing for an agency shop or
modified agency shop, with a labor organization, which agreement
is limited in its coverage to employees who, upon their employment,
will be engaged in the building and construction industry, if
a copy of such agreement is filed with the director and certified
by him as provided in section 83108 (1) (c) (II) (B).
Such agreement may be ratified as provided in section 83108
(1) (c) (II) (C) or terminated by the director as provided in
section 83108 (1) (c) (III).
SECTION 4. Effective date applicability. This act shall take effect July 1, 1998, and shall apply to contracts or agreements entered into, extended, or renewed on or after said date.
SECTION 5. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.