Background
In 2022, the Colorado General Assembly enacted Senate Bill 22-230, the Collective Bargaining by County Employees Act (COBCA), effective July 1, 2023. COBCA grants county employees the right to organize or join labor unions for collective bargaining. It also prohibits counties and their nonelected employees acting on a county’s behalf from expressing views that deter or discourage unionizing, and it regulates aspects of county interaction and bargaining with unionized employees.
After Douglas County employees petitioned in 2024 for an election to select an exclusive collective bargaining representative, the county opposed the unionization campaign, retained counsel and consultants to conduct employee education sessions, and elected officials made statements opposing unionization. Employees responded by filing allegations of unfair labor practices and COBCA violations with the Colorado Department of Labor and Employment (CDLE). Before CDLE reached a decision, the county sued the State, alleging violations of the federal and state free-speech clauses, federal preemption under the Supremacy Clause, and article V, section 24 of the Colorado Constitution. It also sought a declaration that COBCA was “void as unconstitutional.”
The district court dismissed under C.R.C.P. 12(b)(1) for lack of standing. On appeal, Douglas County challenged only the dismissal of its preemption and reference-to-title claims, not the dismissal of its First Amendment or declaratory-judgment claims.
The Court’s Holding
The Colorado Court of Appeals affirmed. Reviewing standing de novo and accepting the complaint’s allegations as true, the court applied the two-part test requiring an actual injury and an injury to a legally protected or cognizable interest. Standing is jurisdictional, must be resolved before the merits, and is assessed in the context of the plaintiff’s claims for relief.
On preemption, the county’s asserted injury was COBCA’s allegedly unlawful regulation of its labor-related communications with employees. The court held that the county lacked a legally protected interest in unregulated communications. The Supremacy Clause supplies neither a cause of action nor federal rights. The federal and state constitutions also did not help because Douglas County, as a political subdivision, has no constitutional rights; its additional status as an employer does not create an exception. The court declined to consider an undeveloped argument raised for the first time in the reply brief based on article XIV, section 6 of the Colorado Constitution and section 30-11-101, C.R.S. 2026.
The court further held that Machinists preemption arises from congressional intent in the National Labor Relations Act (NLRA), not from freestanding federal common law. Although implied preemption can extend beyond the NLRA’s text, the Act expressly excludes states and their political subdivisions from its definition of “employer.” Neither Machinists nor Chamber of Commerce v. Brown grants political-subdivision employers an intangible right to unregulated labor communications. The court therefore affirmed dismissal of the preemption claim without deciding whether COBCA was actually preempted.
On the reference-to-title claim, the court held that the complaint alleged only speculative or hypothetical injury. The county’s appellate assertions that the State enjoined its communications, required corrective postings and emails, and threatened fines were absent from the complaint. Mentioning those injuries in response to the motion to dismiss was insufficient, and the county never amended its complaint after the events allegedly occurred. The court therefore did not reach whether article V, section 24 applies to COBCA.
Key Takeaways
- A county’s status as an employer does not override the rule that Colorado political subdivisions lack constitutional rights.
- Machinists preemption is grounded in the NLRA and does not create an independent federal right for employers excluded from the Act.
- Standing must be supported by allegations in the complaint; new injuries described only in dismissal briefing cannot substitute for pleading or amendment.
- The affirmance was jurisdictional, not a merits ruling that COBCA is constitutional or immune from preemption.
Why It Matters
The decision leaves COBCA’s county-employer restrictions in place against this challenge while narrowly addressing Douglas County’s ability to sue. It distinguishes the sources of legally protected interests for standing purposes and rejects an expansive reading of labor-law preemption for public employers excluded from the NLRA.
The opinion also underscores claim-specific pleading discipline: even injuries arising during litigation must be added through an amended complaint rather than introduced for the first time in motion briefing. The opinion is not published pursuant to C.A.R. 35(e).