CO Code § 8-73-109 (2021)
2021 Colorado Code|Title 8 - Labor and Industry|Article 73 - Benefits - Eligibility - Disqualification|§ 8-73-109. Strikes or Other Labor Disputes - Definitions

     For purposes of this section:   “Coordinated bargaining” means two or more employers bargaining with a union where there is communication and accommodation among the employers but where each is free to make independent decisions on some or all of the issues being negotiated with the union, either written notification of the intent to engage in coordinated bargaining has been provided to the union or the union has rejected an offer to engage in multiemployer bargaining, and one or more representatives of each employer participating in the coordinated bargaining is present at one or more bargaining sessions.    “Defensive lockout” means a lockout:   Reasonably imposed by an employer to protect materials, property, or operations; or    Where a union or two or more employees that are represented by the union take economic action against an employer and that action causes the employer to lock out; or    By any member of a multiemployer bargaining unit or an employer engaged in coordinated bargaining with one or more other employers if such lockout is initiated because of a strike or labor dispute involving any member of such multiemployer bargaining unit or coordinated bargaining group.       “Lockout” means a refusal by an employer engaged in a dispute with a union to permit its employees to perform employment services.    “Multiemployer bargaining unit” means any group of two or more employers bargaining with a union as a single unit with the consent of each employer and the union.    “Offensive lockout” means any lockout by an employer that does not satisfy the definition of a defensive lockout.    “Strike or labor dispute” means the withholding of employment services or other economic action by two or more employees that are represented by the union directed at an employer's business.    An individual's weekly benefit amount shall not be reduced when an individual receives a lump-sum retirement payment from a plan, fund, or trust that has been contributed to by a base period employer when all of the following conditions are met:    When an individual receives a lump-sum retirement payment from a plan, fund, or trust that has been contributed to by a base period employer and the payment does not meet all of the criteria established in subparagraph (II) of this paragraph (a), then the division shall postpone the individual's benefits for a number of calendar weeks equal to the gross amount of the lump-sum payment divided by the individual's full-time weekly wage. However, when an individual receives a lump-sum retirement payment from a plan, fund, or trust as described in this subparagraph (III), but only reinvests a portion of that payment as required in subparagraph (II) of this paragraph (a), or when an individual otherwise withdraws an amount from a plan, fund, or trust that is less than the total lump sum of the account, then the division shall consider only the portion that is received but not reinvested pursuant to subparagraph (II) of this paragraph (a) in determining the number of calendar weeks that the individual's benefits are postponed.    An individual's weekly benefit amount shall not be reduced by any amount of a primary insurance benefit under Title II of the federal “Social Security Act” that has been contributed to by a base period employer if the employee has made contributions to federal social security.       An individual is ineligible for unemployment compensation benefits for any week with respect to which the division finds that his or her total or partial unemployment is due to a strike or labor dispute in the factory, establishment, or other premises in which he or she was employed and thereafter for such reasonable period of time, if any, as may be necessary for such factory, establishment, or other premises to resume normal operations.    For the purposes of this section, a lockout by any member of a multiemployer bargaining unit or an employer engaged in coordinated bargaining with another employer shall constitute a labor dispute if such lockout was a defensive lockout. In accordance with paragraph (b) of this subsection (1), the employees laid off in such a defensive lockout are ineligible for unemployment compensation benefits.    However, notwithstanding paragraph (b) of this subsection (1), if his or her unemployment is due to an offensive lockout initiated by the employer, the individual will be determined eligible for unemployment compensation benefits.       This section shall not apply if he is not participating in or financing or directly interested in the strike as an individual or as a member of the grade or class of workers conducting the strike. Participating in a strike shall include refusal to cross the picket line.    If in any case separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each such department, for the purposes of this section, shall be deemed to be a separate factory, establishment, or other premises.     History. Source: L. 36, 3rd Ex. Sess.: P. 19, § 5. CSA: C. 167A, § 5. L. 41: P. 766, § 5. L. 49: P. 722, § 3. L. 53: P. 624, § 5. CRS 53: § 82-4-11. L. 63: P. 678, § 5. C.R.S. 1963: § 82-4-9. L. 75: (2) R&RE, p. 323, § 1, effective June 29. L. 99: (1) amended, p. 682, § 1, effective May 19. History. Source: L. 36, 3rd Ex. Sess.: P. 19, § 5. CSA: C. 167A, § 5. L. 41: P. 766, § 5. L. 49: P. 722, § 3. L. 53: P. 624, § 5. CRS 53: § 82-4-11. L. 63: P. 678, § 5. C.R.S. 1963: § 82-4-9. L. 75: (2) R&RE, p. 323, § 1, effective June 29. L. 99: (1) amended, p. 682, § 1, effective May 19.    ANNOTATION   Law reviews. For article, “The Conflict Between Collective Bargaining and Unemployment Insurance”, see 28 Rocky Mt. L. Rev. 185 (1956). For article, “Defending an Unemployment Compensation Claim”, see 13 Colo. Law. 69 (1984).   Annotator's note. Cases included in the annotations to this section which refer to the industrial commission were decided prior to the enactment of 1986 Senate Bill No. 12 which abolished said commission and transferred its powers, duties, and functions under the act to the director of division.   Provisions disqualifying claimants from receiving benefits strictly construed. The provisions of the Colorado employment security act which disqualify claimants from receiving benefits must be strictly construed to accomplish their purpose without excluding legitimate claims for benefits. F.R. Orr Constr. Co. v. Indus. Comm'n, 33 Colo. App. 326, 522 P.2d 117 (1974), aff'd, 188 Colo. 173 , 534 P.2d 785 (1975).   This section makes unemployment due to a strike noncompensable. Sandoval v. Indus. Comm'n, 110 Colo. 108 , 130 P.2d 930 (1942); Kania v. Schaffer, 31 Colo. App. 538, 506 P.2d 384 (1972).   Coverage excluded. This section excludes coverage for any week of unemployment caused by a strike or labor dispute. Pierce v. Indus. Comm'n, 38 Colo. App. 85, 553 P.2d 402 (1976).   When the employer-employee relationship has been terminated, this section no longer applies. Pierce v. Indus. Comm'n, 38 Colo. App. 85, 553 P.2d 402 (1976); Brannan Sand & Gravel v. Indus. Claim Appeals Off., 762 P.2d 771 (Colo. App. 1988), aff'd sub nom. Federico v. Brannan Sand & Gravel Co., 788 P.2d 1268 (Colo. 1990).   A referee's finding that the labor dispute with respondent employer still existed on the date claimants filed for benefits and claimants' objection to that finding were irrelevant where the claimants had quit their jobs with that employer. Pierce v. Indus. Comm'n, 38 Colo. App. 85, 553 P.2d 402 (1976).   A striking employee does not have to unilaterally abandon the strike or dispute and offer to return to work and be refused employment, regardless of whether the employee had been permanently replaced, in order to become eligible for benefits. Brannan Sand & Gravel v. Indus. Claim Appeals Office, 762 P.2d 771 (Colo. App. 1988), aff'd sub nom. Federico v. Brannan Sand & Gravel Co., 788 P.2d 1268 (Colo. 1990).   Benefits where employee permanently replaced. A strike or labor dispute suspends the employer-employee relationship, and this section excludes coverage for periods of unemployment attributable to the dispute. However, the relationship may be terminated and the employee may become eligible for benefits if the employer permanently replaces the striking employee. The rationale for this rule is that hiring permanent replacements ends the voluntary nature of the unemployment and breaks the chain of causation between the labor dispute and the unemployment. In re Krantz v. Kelran Constructors, Inc., 669 P.2d 1049 (Colo. App. 1983); Brannan Sand & Gravel v. Indus. Claim Appeals Office, 762 P.2d 771 (Colo. App. 1988), aff'd sub nom. Federico v. Brannan Sand & Gravel Co., 788 P.2d 1268 (Colo. 1990).   “Strike” defined. “A strike”, in so far as the application of this act is concerned, is a concerted refusal to work for pay and under conditions that are presently available in order to procure more advantageous conditions or greater pay. Sandoval v. Indus. Comm'n, 110 Colo. 108 , 130 P.2d 930 (1942).   And a labor dispute may exist without a strike, but a labor dispute, accompanied by a concerted refusal to work for the employer until the dispute is resolved in favor of the employees' contentions, furnishes all the elements of a strike. Sandoval v. Indus. Comm'n, 110 Colo. 108 , 130 P.2d 930 (1942).   Cause of lockout must be determined when resolving eligibility for benefits where lockout resulted from strike against another member of multiemployer bargaining unit. If lockout resulted from employer's efforts to deprive employees of some advantage they already possessed, they are eligible for benefits. Safeway Stores 44 Inc. v. Indus. Claim Appeals Office, 973 P.2d 677 (Colo. App. 1998).   The refusal of employees to work after expiration of their working contract unless guaranteed contingent benefit of future action on new contracts, then unascertained and unascertainable, constituted a demand for a modification of working conditions and rates of pay, and their refusal to return to work until there was a compliance with such demand, was in effect a strike, in which situation they were not entitled to unemployment benefits. Sandoval v. Indus. Comm'n, 110 Colo. 108 , 130 P.2d 930 (1942).   Offers or concessions made subsequent to commencement of labor dispute which are not acceptable to other party are merely negotiations and do not terminate dispute. Kania v. Shaffer, 31 Colo. App. 538, 506 P.2d 384 (1972).   And an employee is directly interested in a dispute when his wages, hours, or conditions of work will be affected favorably or adversely by the outcome of a strike. It is of no consequence that such employee is not a member of the union conducting the strike or that he may not be in sympathy with its purposes. Burak v. Am. Smelting & Ref. Co., 134 Colo. 225 , 302 P.2d 182 (1956).   The burden rests upon a claimant to prove that he comes within the exceptions of this section which entitle him to unemployment compensation in the event of a strike. Burak v. Am. Smelting & Ref. Co., 134 Colo. 255 , 302 P.2d 182 (1956).   Purpose of the “grade or class” provision in this section is to preclude the possibility of unemployment compensation funds being used to finance, at least in part, certain types of labor disputes such as “key man” strikes in which a very small proportion of an employer's labor force can cause a shutdown of an entire operation by withdrawing their services. F.R. Orr Constr. Co. v. Indus. Comm'n, 33 Colo. App. 326, 522 P.2d 117 (1974), aff'd, 188 Colo. 173 , 534 P.2d 785 (1975).   There are two essential guidelines for the application of a “grade or class” provision: (1) The degree of integration of the work performed by the various groups of employees, and (2) the presence of a community of interest between the striking and nonstriking employees. However, integration of work, alone, is not sufficient to preclude a claimant from establishing his eligibility. There must also be a “community of interest” between the claimants, as a class, and the striking employees. Such a “community of interest” would be evident if the claimants' wages, working conditions, fringe benefits, etc., would be affected by the outcome of the labor dispute. F.R. Orr Constr. Co. v. Indus. Comm'n, 33 Colo. App. 326, 522 P.2d 117 (1974), aff'd, 188 Colo. 173 , 534 P.2d 785 (1975).   Sympathy with strike insufficient to establish community of interest. Where the only relationship between the striking and nonstriking employees revealed by the record is general sympathy with the strike activities of the striking union, such a relationship is inherent in all labor relations and is insufficient to establish the requisite community of interest. F.R. Orr Constr. Co. v. Indus. Comm'n, 33 Colo. App. 326, 522 P.2d 117 (1974), aff'd, 188 Colo. 173 , 534 P.2d 785 (1975).   Commission's determination as to crossing picket line is one of fact. The question of whether claimants refused to cross picket lines, or whether no work was available and any attempt to cross picket lines would have been superfluous, is one of fact, and the determination of the commission in this regard may not be disturbed on review if supported by substantial evidence. Lamb v. Indus. Comm'n, 662 P.2d 191 (Colo. App. 1983).   Labor dispute could not be considered direct cause of termination. Pierce v. Indus. Comm'n, 38 Colo. App. 85, 553 P.2d 402 (1976).   Employer has no duty to adhere to the terms of an expired labor contract for a reasonable time to avoid creating a “constructive lockout” situation which would permit strikers to receive unemployment compensation under subsection (1). Abbott v. Indus. Claim Appeals Office, 796 P.2d 60 (Colo. App. 1990).