Lawsuit: Union claims King Soopers contract plant workers violate CBA

DENVER — A little more than a year after King Soopers management and the union representing its employees went toe to toe over a new collective bargaining agreement, the parties are once again at odds, with the United Food and Commercial Workers Local 7 alleging in a lawsuit that the grocery chain’s parent company Dillon Cos. LLC brought in outside contract workers to provide services that union members have historically been paid overtime to do. 

The lawsuit, filed this week in U.S. District Court in Denver, claims that “for decades,” UFCW workers have been in charge of managing outdoor plant displays during the spring and summer months. “During the season, there has been an average of approximately twenty to forty hours of additional work available each week at each store for members of the bargaining unit to  perform work related to bedding plants.”

King Soopers informed the union last month that it had contracted with outside vendor National Garden Service to perform plant work, a move that the UFCW claims is a violation of the 2022 CBA.

The union then filed a pair of grievances with labor regulators, but King Soopers has allegedly declined to sit down for expedited arbitration sessions, which is why the union said that it has decided to sue.

“Absent injunctive relief, it will be impossible for an arbitrator to accurately determine the impact of the outsourcing on the availability of unit work because there is no evidence that King Soopers is keeping any records of the work the National Garden Service employees perform or even how many National Garden Service employees are present at the  stores or for how long they are present,” the complaint said. 

Without a court order, the union argues, “it will be impossible to account for the impact of any lost hours that could be tracked because of how employees bid on shifts. There is simply no way for  an arbitrator to determine who would have placed a bid on the outdoor garden shifts. It also creates a cascade effect: an arbitrator cannot determine who would bid on and receive the shifts  vacated by employees who successfully received the outdoor garden shifts. Therefore, there is no way to know who lost out on shifts they would have otherwise worked.”

The union sought a temporary restraining order to block NGS contractors from working in the store, but U.S. District Court Judge Gordon Gallagher ruled against the UFCW.

Gallagher wrote in his order that the damage the union “seeks to prevent is one that can be remedied monetarily (or otherwise, as discussed below) and with only moderate administrative difficulty. The number of hours worked by National Garden Service employees at each store can be readily tracked through payroll or invoice records of the Defendant, or even through contemporaneous  observation or forensic reconstruction.”

Gallagher said he would find it to “be extraordinary” if King Soopers didn’t keep “invoice(s) or other business records reflecting the amount that it is paying National Garden Service for work that its employees are performing on the defendants’ behalf.”

The order, however, does not doom the entirety of the union’s case.

Despite the judge’s decision, the court “nevertheless construes that motion to also request a preliminary injunction, and it may be that upon a broader evidentiary showing, the union might be able to demonstrate facts warranting preliminary injunctive relief.”

Arguments related to potential relief for the union have not yet been made, and neither party responded Wednesday for requests for comment from BizWest. 

This week’s lawsuit represents the latest in a series of recent events that have pitted the union against King Soopers management.

In early 2022, more than 8,000 union workers from nearly 80 King Soopers locations throughout metro Denver and the Boulder Valley — including employees in Boulder, Broomfield, Louisville and Westminster — struck for nine days in demand of pay raises, the elimination of a two-tiered salary system that treats newly hired workers different from longer-term workers, job outsourcing to non-union workers and stronger health and safety protections in the face of the COVID-19 pandemic.

The labor dispute was an ugly one, with both sides suing the other and King Soopers successfully petitioning a judge for a temporary restraining order against picketers, who were accused of aggressive tactics. 

King Soopers brought in non-union workers to staff stores during the strike, some of whom were paid more than what was being demanded by the union. Private security was also used by the Kroger Co. chain during union rallies and picketing events.

Management also blamed strikers for its decision to delay the reopening of the Table Mesa store in Boulder, closed for nearly a year after a March 2021 mass shooting in the store that left 10 people dead. The union had cited this violent outburst, which occurred during the height of the COVID-19 pandemic, as an example of management’s failure to properly account for employee health and safety. 

The case is United Food and Commercial Workers Local 7 versus Dillon Cos. LLC, number 23-cv-00958, filed April 18 in U.S. District Court in Denver.

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