Chapter 22 - § 22.8 • NATIONAL LABOR RELATIONS ACT

• Jurisdiction: Colorado

§ 22.8 • NATIONAL LABOR RELATIONS ACT

Although Colorado employers have not experienced as much union activity as many employers located on the East Coast, it is important to understand that under the National Labor Relations Act (NLRA), employees have a right to engage in organizing activities without improper interference.²⁴⁶ In addition, although unionizing activity is not as common in Colorado as in other states, it is important to understand that employers can easily make mistakes in handling such situations, unless they immediately contact counsel for guidance.

Special rules apply to the construction industry. The NLRA governs labor relations issues only if all jurisdictional requirements are satisfied. In essence, the controversy must be considered a "labor dispute" affecting commerce that involves employers and employees. Examples of situations in which labor disputes in the construction industry affected commerce include:

• A construction project where a substantial amount of the materials were procured out of state;²⁴⁷ and
• A subcontractor involved in a labor dispute who was engaged solely in local construction, but was hired by a general contractor that engaged in interstate commerce.²⁴⁸

"Supervisors" are not considered "employees" under the NLRA and thus lack the protections afforded to employees.²⁴⁹ In the construction industry, foremen or leadmen are considered supervisors if they have effective authority to make employment hiring and firing decisions and have the authority to reward, direct, and discipline employees.²⁵⁰ In general, the extent of authority governs the supervisory status rather than the job title of "foreman" or "leadman."

Although the NLRA may have jurisdiction to govern a particular dispute, the National Labor Relations Board (NLRB) has discretion to decide not to hear a particular case.²⁵¹ The NLRB generally relies on a minimum-dollar standard designed to measure the dispute's impact on commerce.²⁵² There are special rules for calculating this minimum-dollar standard for employers in multi-employer bargaining units and those involved in secondary boycott cases, which may impact certain construction industry employers.

The NLRB also establishes the criteria for creating appropriate bargaining units to carry out collective bargaining under the NLRA. The construction industry, however, is exempt from coverage of a recent NLRB proposal that favors single-location bargaining units. In a departure from more than a decade-long precedent, in 2016, the NLRB overturned Oakwood Care Center²⁵³ in Miller & Anderson, Inc.²⁵⁴ As...