Union Organizing Rights in Colorado: What Workers Can Do

The National Labor Relations Act (NLRA), enacted in 1935 and codified at 29 U.S.C. § 151 et seq., is the primary federal statute protecting union organizing rights in the United States. The NLRA applies to all private sector employers engaged in interstate commerce, with limited exceptions for railroads (covered by the Railway Labor Act), airlines, agricultural workers, and domestic workers.

Under the NLRA, Section 7 (29 U.S.C. § 157) grants employees the right to organize, form, join, or assist labor organizations; to bargain collectively through representatives of their choosing; and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Section 8 (29 U.S.C. § 158) defines unfair labor practices by employers, including interfering with, restraining, or coercing employees in the exercise of Section 7 rights; dominating or interfering with the formation or administration of labor organizations; discriminating against employees based on union membership or activity; retaliating against employees for filing NLRB charges or testifying in NLRB proceedings; and refusing to bargain collectively with a union that represents a majority of eligible employees.

The National Labor Relations Board (NLRB) is the federal agency responsible for investigating and remedying unfair labor practices. When an employer violates the NLRA, affected employees or unions may file charges with the NLRB's regional office. The NLRB General Counsel investigates the charge and, if sufficient evidence of a violation exists, issues a complaint and prosecutes the case before an NLRB Administrative Law Judge. Remedies include cease-and-desist orders, reinstatement with back pay, and posting of notices informing employees of their rights. The NLRA does not provide for punitive or compensatory damages to individual workers, but does allow reinstatement and back pay for unlawfully discharged employees.

The NLRA also establishes procedures for union representation elections. When a union obtains authorization cards from at least 30% of employees in an appropriate bargaining unit, it may petition the NLRB for a representation election. The NLRB conducts a secret ballot election; if a majority votes for union representation, the employer must recognize and bargain with the union.

Colorado provides additional protections for union organizing beyond the federal NLRA framework. Colorado's state constitution, Article XVIII, Section 13, explicitly guarantees workers the right to organize and bargain collectively, stating: "The right of employees to organize and bargain collectively is recognized." This constitutional protection reinforces federal rights and may provide a basis for state-law claims in certain contexts.

Colorado Revised Statutes § 8-3-101 et seq. (the Colorado Whistleblower Protection Act) extends protections to workers who advocate for union organization or engage in protected activity. Under C.R.S. § 8-3-101, an employer may not retaliate against an employee for disclosing information about conduct the employee reasonably believes constitutes a violation of law, including labor laws. This means that workers in Colorado who report employer violations of labor standards in connection with union organizing efforts receive additional state whistleblower protections beyond the NLRA.

Colorado law also differs from federal law in its treatment of union security agreements. Nineteen states have adopted "right-to-work" laws that prohibit union security agreements requiring workers to pay union dues or fees. Colorado is not a right-to-work state; unions in Colorado may lawfully negotiate union security agreements, including agency shop agreements, requiring all employees in a bargaining unit to contribute to union operations. This makes Colorado a union-friendly state for organizing purposes, as successful unionization can result in more stable union financing.

Covered employers in Colorado include all private sector employers subject to the NLRA. Public sector employees (state and local government workers) in Colorado are not covered by the NLRA and have different organizing rights under Colorado law and local ordinances. Some Colorado municipalities have enacted local ordinances protecting public employee organizing rights. Additionally, railroad workers are covered under the separate Railway Labor Act, not the NLRA.

Remedies available under Colorado state law include those available federally through NLRB enforcement, but may also include state tort remedies (such as wrongful termination claims under common law) if the union organizing violation also constitutes a violation of established public policy. Colorado courts have recognized a public policy exception to at-will employment for workers fired in retaliation for union activity or protected labor advocacy.

NLRB jurisdiction: Employer must have at least $500,000 in annual gross revenues (for most industries) or $100,000 (for certain types of businesses like hotels, hospitals, nursing homes) to be subject to NLRB jurisdiction.

Representation election threshold: Union must obtain authorization cards signed by at least 30% of employees in the proposed bargaining unit to petition for an NLRB representation election.

Majority threshold: Union must win majority support (more than 50%) of votes cast in a secret ballot election to be certified as the exclusive bargaining representative.

Unfair labor practice filing deadline: You have 180 days from the date of the alleged unfair labor practice to file a charge with the NLRB.

Cooling-off period: If a union and employer are in contract negotiations and the contract is about to expire, federal law requires a 60-day notice of intent to modify or terminate the contract before any strike or lockout may occur.

Several important exceptions and limitations apply to union organizing rights in Colorado.

First, supervisors and managers are excluded from NLRA protection. Section 2(11) of the NLRA defines "supervisor" as any individual with authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or to responsibly direct them, or to adjust their grievances. Supervisors have no right to organize under the NLRA, though some Colorado labor laws may provide limited protections to lower-level supervisors depending on the context.

Second, independent contractors are not covered by the NLRA. The NLRB applies the "common law agency test" to determine whether a worker is an employee or independent contractor. Misclassification of employees as independent contractors is a violation of the NLRA if done to prevent organizing, but the burden is on the worker or union to challenge the classification.

Third, confidential employees (employees who have access to confidential information about labor relations, such as HR personnel involved in union matters) may be excluded from bargaining units and are not protected by Section 7.

Fourth, employees engaged in strikes or picketing may lose some protections if their conduct becomes violent, threatens violence, or involves mass picketing that prevents ingress or egress to the employer's facility. However, peaceful picketing is fully protected.

Fifth, public sector employees are not covered by the NLRA and therefore lack the same federal organizing protections as private sector workers. Colorado public employees' organizing rights depend on state law and local ordinances. The Colorado Public Employees' Retirement Association (PERA) and other state employee organizations have limited organizing rights under state law, though not equivalent to NLRA protections.

Sixth, employees in certain industries have limited protections. For example, employees of employers covered primarily by the Railway Labor Act (airlines, railroads) are excluded from NLRA coverage. Agricultural workers are excluded. Domestic workers employed in private homes are excluded.

Seventh, an employer may be found not to have violated the NLRA if it can prove an employee was discharged for legitimate, non-retaliatory reasons (such as poor performance, theft, or violation of neutral work rules) even if union activity was a factor. This is known as the "legitimate, independent reason" defense established in Wright Line, 251 N.L.R.B. 1083 (1980). However, the burden shifts to the employer once the employee establishes a prima facie case of retaliation.

Eighth, at-will employment doctrine still applies to union members unless a collective bargaining agreement is in place. However, Colorado recognizes a public policy exception to at-will employment for discharge in retaliation for union activity, as established in state case law.

Step 1: Document All Organizing Activity and Any Adverse Employment Actions

Begin documenting your union organizing efforts immediately. Keep a detailed record of: dates, times, and locations of organizing conversations or meetings (including any organizing activities you conduct outside of work hours); the names of coworkers involved; the content of discussions about working conditions, wages, or union organizing; any organizing materials you distribute (flyers, cards, texts, emails); and your regular job performance and attendance records. If your employer takes adverse action against you—such as a written warning, change in schedule, denial of a promotion, suspension, or termination—document the date, what was said, who was present, what rule or policy the employer cited, and how the action differs from how the employer has treated non-organizing employees in similar situations. Take screenshots of emails, text messages, or social media posts if they relate to organizing. Keep copies of all documents in a secure location outside of work, and consider photographing or recording handwritten notes as a backup. This documentation is critical evidence if you later file an unfair labor practice charge with the NLRB.

Step 2: Understand Colorado's Internal Grievance and Union Processes

Before filing with the NLRB, determine whether your employer has an internal complaint or grievance procedure. If an internal procedure exists and there is no union yet, review it carefully. However, for union organizing retaliation claims, bypassing internal procedures and going directly to the NLRB is often preferable because the NLRB investigation is impartial and provides stronger remedies than internal processes. If a union already represents your workplace, file a grievance through the union's representative immediately. The union representative can advocate on your behalf and gather evidence. Most collective bargaining agreements include grievance procedures that must be exhausted before pursuing external remedies, though the NLRB may still have independent jurisdiction over unfair labor practice charges even if a grievance is pending. If you have not yet unionized and are organizing, consult with a union organizer or labor attorney before making any internal complaint, as the employer may use internal procedures as an opportunity to gather information about organizing activities or to retaliate further.

Step 3: File an Unfair Labor Practice Charge with the NLRB

If you experience retaliation or your employer interferes with organizing rights, file an unfair labor practice charge with the National Labor Relations Board. The NLRB has 10 regional offices; Colorado is covered by the NLRB Region 27, with offices in Denver. The Denver Regional Office address is: National Labor Relations Board, Region 27, 600 17th Street, Suite 901, Denver, CO 80202. Phone: (303) 844-3551. Website: https://www.nlrb.gov/regions/27. You can file a charge in person, by mail, or online through the NLRB's eFile system at https://www.nlrb.gov/about-nlrb/what-we-do/investigate-charges.

You have 180 days from the date of the alleged violation to file a charge. This deadline is strictly enforced; claims filed after 180 days are barred by the statute of limitations. Calculate the 180-day period from the date of the adverse action, not from the date you discovered it. The charge must include: your name, address, phone number, and email; your employer's name, address, and phone number; a description of the unfair labor practice (what happened, when, and how it relates to union activity); the names of any witnesses; dates of relevant events; copies of any relevant documents (warning letters, termination notices, emails, text messages); and your signature. You do not need an attorney to file a charge, but having one can strengthen your case. The charge form is available at https://www.nlrb.gov/sites/default/files/attachments/pages/node-1797/form508new.pdf.

Step 4: NLRB Investigation and Process

Once you file a charge, the NLRB Regional Office assigns an investigator to examine the claim. You will be contacted by the investigator, usually by phone, and asked to provide a detailed statement about the facts supporting your charge. Provide truthful, detailed information and be prepared to provide documentation. The investigator will also contact your employer for their version of events. The investigation typically takes 20-40 days, though complex cases may take longer.

After investigation, the NLRB Regional Office issues one of three determinations: (1) no reasonable cause to believe a violation occurred, in which case the charge is dismissed (though you may request reconsideration); (2) reasonable cause to believe a violation occurred, in which case the NLRB issues a "Complaint" and the case proceeds to a hearing before an NLRB Administrative Law Judge; or (3) reasonable cause to believe a violation occurred and settlement negotiations are initiated.

If a Complaint is issued, an Administrative Law Judge conducts a hearing (similar to a trial) where both you (or the union, if representing you) and the employer present evidence and testimony. The hearing is formal but does not require a lawyer, though one is strongly recommended. The judge then issues a decision determining whether a violation occurred. If the judge finds a violation, remedies may include: cease-and-desist orders requiring the employer to stop the unlawful conduct; reinstatement of a discharged employee to the job held before discharge, or to a substantially equivalent job if the original job is no longer available; back pay (wages from the date of discharge to the date of reinstatement offer, with interest); expungement of any disciplinary records related to the unlawful conduct; and posting of notices informing employees of their rights. The decision may be appealed to the NLRB's five-member Board in Washington, D.C.

Throughout the NLRB process, you are protected against further retaliation. If your employer retaliates against you after you file a charge, you may file an additional charge for retaliation (a secondary violation), and the NLRB may seek a "make-whole" remedy requiring the employer to restore your wages and benefits during the pendency of the investigation.

Step 5: Consult an Attorney

Consult a labor law attorney if: your employer has terminated you or taken serious adverse action; your employer threatens violence or engages in surveillance of organizing activities; your employer's response to organizing suggests complex legal questions; or you feel overwhelmed by the process. An attorney can: review whether you have a viable claim; represent you throughout the NLRB process; negotiate settlements; appeal unfavorable decisions; and advise on parallel state law claims (such as wrongful termination under Colorado public policy). Many labor attorneys work on a contingency basis (taking a percentage of damages or settlement proceeds) or offer free or low-cost initial consultations. Contact the Colorado Employment Lawyers Association or the National Lawyers Guild for referrals to labor attorneys in your area. The NLRB itself is a government agency and does not require you to hire an attorney; NLRB investigators and prosecutors represent the public interest, not you individually, but their work may benefit you if a violation is found.