Colorado Pro-Labor Movement Seeks to Eliminate Right-to-Work Provisions in Labor Peace Act

Brett Whitley, Associate

Colorado law occupies a unique middle-ground position in “right to work” labor laws, as it currently allows employees to unionize after obtaining a simple majority vote, but also requires a second election where a 75% plurality must be obtained before a recognized union can negotiate for “union securities.”[1] However, Colorado labor movement is looking to change Colorado’s status from a modified right-to-work state to a state that permits conditioning employment on membership with a union once a union is elected as the employees’ bargaining agent.  Specifically, the Colorado labor movement is pushing for the passage of the Worker Protection Act (“WPA”), which would repeal key provisions of the over 80-year-old Colorado Labor Peace Act[2] (“LPA”). 

What is the Current Landscape of Unionizing in Colorado?

Under the LPA, employees do not have to petition the National Labor Relations Board (“NLRB”) in order to hold a union representation election. Rather, employees may unionize through the methods prescribed in the LPA.  The LPA requires employees to hold two elections.  The first election determines if employees wishing to unionize may be represented by a union.  Specifically, in order for there to be a union representing employees, a simple majority of eligible employees must vote to unionize.  However, even if a union is elected by simple majority, new hires may decline to join the union or pay dues, and existing employees may likewise decline membership and dues obligations, which is consistent with other traditional “right to work” laws.

But, the LPA provides that employees may hold a second election to determine whether the employer will become a “union shop,” meaning that membership in the union is required as part of employment (as well as payments of dues), thereby overriding the previous “right to work” status of the employer’s employees.  The WPA, in particular, seeks to eliminate the second-election requirement of the LPA and thereby convert Colorado to a non-“right to work” state, like California, New York, Oregon, and multiple other states.

Those in favor of the WPA describe the second election and its 75% threshold requirement for union security agreements as an impossible feat to achieve, thereby preventing unions from obtaining real negotiating power. Specifically, they argue that without a union security agreement, the union loses negotiating power since it would not be representing all of the workforce and would not have full financial backing of the workforce through union dues. The hurdle the second election presents in obtaining union security agreements has been evident over the years.  Data demonstrates that since 2020, only 22 unions in Colorado have held a second election and of those 22 elections, 13 unions were able to meet the 75% threshold.

How Would the WPA Change this Landscape?

The WPA seeks to eliminate the requirement for the second election before the union can negotiate for a union security with the employer.  Were the WPA to pass in 2025, unions would be able to negotiate for a union security without 75% of the eligible workforce approving of the union security to be bargained for with the employer once a simple majority of eligible employees approve of unionizing.

Governor Jared Polis has indicated his skepticism of the WPA.  Further, the pro-business community unsurprisingly opposes the elimination of the second election requirement of the LPA, which, in their opinion, has been the foundation of the Colorado economy for decades. 

Employer Considerations

If the WPA is passed into law, Colorado employers would need to be prepared to operate in a non-right-to-work state.  Specifically, once a newly recognized union comes to the bargaining table with the employer, it would almost certainly seek a union security agreement.  If a union security agreement is obtained, the costs of doing business may rise, although whether the WPA will become law is questionable given Governor Polis’s skepticism of the bill and prior attempted bills like it. Campbell Litigation will continue to monitor the WPA’s navigation through the General Assembly and remains able to assist employers with labor/management issues and relations.

[1] A “union security” is an agreement between the union and the employer requiring all workers, including non-union workers, to pay dues to the union.  Some types of union securities compel a worker’s allegiance to the union, including those workers who do not wish to unionize.

[2] C.R.S. § 8-3-101 et seq.