Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 1 of 21
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`Civil Action No. ______________________
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`UNITED FOOD AND COMMERICAL WORKERS INTERNATIONAL
`UNION, LOCAL 7, AFL-CIO
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`Plaintiffs,
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`v.
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`DILLON COMPANIES, LLC d/b/a KING SOOPERS,
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`
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`
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`Defendant.
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`PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
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`COMES NOW United Food and Commercial Workers International Union, AFL-CIO,
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`Local 7 (collectively, the “Plaintiff” or “Local 7”), by and through undersigned counsel,
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`respectfully moves for a preliminary injunction pending pursuant to Fed. R. Civ. P. 65(a) as
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`more fully set forth herein.
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`OVERVIEW AND FACTUAL BACKGROUND
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`This action arises out of a series of collective bargaining agreements (the “CBAs”)
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`entered into between Plaintiff and Defendant Dillon Companies, LLC d/b/a King Soopers
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`(hereinafter “Defendant” or “King Soopers”). Pursuant to the terms of the CBAs,1 the bargaining
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`1 Local 7 represents the vast majority of the employees in the Defendant’s represented stores, but the employees in a
`given store are typically divided into a “retail” unit and a “meat” unit. The meat unit is generally comprised of
`employees in the Meat/Seafood and Deli Departments, and where applicable, the Cheese and Starbucks kiosks. Kim
`C. Cordova Declaration at ¶ 3. Generally, the remaining employees are included in a “retail” bargaining unit, which
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`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 2 of 21
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`unit workers represented by Local 7 have the exclusive right to perform work “connected with
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`the handling or selling of merchandise” within the stores, with certain exceptions discussed
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`herein. In or around November of 2021, Plaintiff first became aware that King Soopers was
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`utilizing third-party staffing services to provide employees performing bargaining unit work.
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`Bargaining unit members and Local 7 staff have discovered that at least two different
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`entities, Retail Odyssey and Day Ready/People Ready, whose workers were in the stores
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`performing bargaining unit work. Although these entities apparently provide what is, at times,
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`permissible services (according to King Soopers representatives, Day Ready/People Ready
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`provide sanitation and floor maintenance services2 within the stores and Retail Odyssey performs
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`store resets3), they were instead observed stocking the shelves (in one case, a frozen case), which
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`is exclusively bargaining unit work.
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`The collective bargaining agreement covering retail clerk workers provides:
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`ARTICLE 2
`BARGAINING UNIT WORK JURISDICTION
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`Section 2. All work and services performed in the bargaining unit connected
`with the handling or selling of merchandise to the public shall be performed
`exclusively by bargaining unit members except as provided below. Store Managers,
`Assistant Managers, Field Merchandisers can perform all duties in the store.
`Delicatessen, Coffee, and Cheese Clerks, and the department managers (Deli
`Manager, Assistant Deli Manager, Coffee Lead, and Cheese Steward} can perform
`all work in the bakery.
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`includes employees working in the checkstands, pharmacy, produce, dairy, and other departments not included in
`the meat unit. Cordova Declaration at ¶ 3. See also Complaint at ¶¶ 15, 16. Bargaining units are comprised of the
`respective employees across a store or stores in a given geographical area. See Exhibit 1 at Arts. 1, Exhibit 2 at Arts.
`2; see also Complaint at ¶¶ 14-16. The retail and meat agreements contain nearly identical language restricting
`vendor work in the stores. See supra and Exhibit 1 at Art. 2, Exhibit 2 at Art. 2.
`2 Sanitation and Floor maintenance work is specifically permitted to be outsourced by the CBAs. Exhibit 1 at Article
`2; Exhibit 2 at Article 2.
`3 The CBAs also permit up to three store “resets” per year to be performed by direct store vendors. Exhibit 1 at
`Article 2; Exhibit 2 at Article 2. A “reset” involves moving numerous products normally placed for sale in one area
`of the store to another area of the store, and otherwise shuffling the respective placement of a multitude of products
`within the store. See Cordova Declaration at ¶ 7.
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`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 3 of 21
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`Bargaining Note: Bakery Clerks shall remain in the Clerks Pension.
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`AUTHORIZED WORK FOR VENDORS
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`Section 3. Vendor Work: Direct store vendors who deliver the product
`categories of beverages (including juice sold in produce/deli departments), cookies
`and crackers, bakery, pizza, ice cream, chips, specialty/gourmet/natural foods,
`greeting cards (and related products such as bows, wraps, candles, balloons,
`ribbons), newspapers, magazines, books and related products shall be allowed to
`perform all work in connection with the sale of their products directly delivered to
`the store. For purpose of this provision, the product categories as used herein shall
`be interpreted to include all products delivered by such vendor. Additionally, all
`vendors shall be allowed to stock and otherwise maintain any J-Hook or Clip strip
`program. Additionally, all vendors may perform: any work in connection with
`promotional and seasonal displays; facing in connection with the service of product;
`rotation of product; cleaning of product, shelves and racks; affixing coupons and
`other promotional materials ta products; vendors shall be permitted to perform three
`(3) major resets per store per section per calendar year. Additionally, vendors may
`perform work, as necessary to accommodate the introduction of new items, or
`removal of discontinued items, from the set; checking of code dates and removal of
`outdated product; and any work in connection with the opening of a new store and
`the two (2) week period thereafter, or during the two (2) weeks before and after a
`store remodel.
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`Section 4. Work Jurisdiction. Except for sanitation and floor maintenance,
`the Employer agrees not to subcontract operations existing within the stores. The
`Employer agrees that no employee classified as a Sanitation Clerk or Sanitation
`Manager on May 11, 1996 shall be laid-off or reduced in hours as a result of the
`subcontracting of floor care or expansion of Courtesy Clerk duties. However, the
`Employer reserves the right to promote Sanitation Clerks and/or Managers to All
`Purpose Clerk vacancies in order to provide for the use of outside contractors for
`floor maintenance and sanitation work. It is understood that before a full-time
`Sanitation Clerk is advanced to a full-time All Purpose Clerk position, such
`employee must have more seniority than the most senior employee on the All-
`Purpose Clerk full-time list for the vacancy. It is understood that Sanitation Clerks
`protected herein may be assigned hours in lower classifications, at their sanitation
`rate, for purpose of meeting the job security provision of this section.
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`Subcontracting is defined as a contractual relationship with another
`employer whereby employees of that employer perform the work of bargaining unit
`employees. A purchase order is not a subcontracting agreement.
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`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 4 of 21
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`The collective bargaining agreement covering meat bargaining unit workers provides:
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`ARTICLE 2
`SERVICE IN MEAT-DELICATESSEN DEPARTMENTS, PLANTS
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`Section 2. All work performed in the meat, delicatessen and seafood
`department(s) will be done by members of the bargaining unit, except Store
`Managers, Assistant Store Managers, and Field Merchandisers may perform all
`duties in the meat department without restriction. Bakery Clerks and the department
`managers (Bakery Manager and Assistant Bakery Manager) can perform all work
`in the Delicatessen, Coffee, and Cheese Departments. For the purpose of this
`agreement, the meat department is defined as the area occupied by the meat storage
`rooms, the meat preparation rooms and the service and/or self-service display cases
`where fresh, smoked, cooked and frozen meats, poultry, fish and seafood are
`offered for retail sale, with the exception of poultry products, the pricing of all meat
`products shall be done on the premises except as provided herein. Notwithstanding,
`the Employer may have specialized sanitation work, such as cleaning of ceiling
`tiles, grease traps, drains, walls, etc., performed by personnel outside the bargaining
`unit.
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`Bargaining Note: Bakery Clerks are not permitted to work in the Meat and
`Seafood/Butcher Block.
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`Section 2 A. Bargaining unit employees shall perform the work of cutting
`or preparation of meats that are cut, processed or prepared on the Employer’s
`premises for immediate consumption.
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`All fresh, cured, smoked or frozen meat, refrigerated luncheon meats, fish,
`poultry and rabbits shall be handled by employees within the bargaining unit.
`Nothing in this agreement shall be construed to prevent non-bargaining unit
`employees from selecting customer purchases from the sales floor throughout the
`entire store, including the storage and retrieval thereof.
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`No one other than employees covered by this agreement shall be permitted
`to perform the cutting or preparation of meat in the meat departments, meat
`markets, seafood or delicatessen departments on the employer’s premises, except
`as set forth below:
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`1) This does not include the transaction of the checkstand.
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`2) No representative of management above the level of head meat cutter
`(except for owners, partners and/or officers of the Employers) shall perform
`the work customarily assigned to employees in the bargaining unit except:
`(a) when a bargaining unit employee who has been scheduled to work fails
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`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 5 of 21
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`to report to work as scheduled; (b) in connection with the instruction or
`training of an employee or employees; or (c) in connection with the first
`thirty days of the opening of a new or remodeled market; or (d) in
`connection with simple straightening of display cases; or (e) in connection
`with the removal of outdated, distressed or damaged merchandise from
`display cases; or (f) in connection with floor maintenance work performed
`by a member of the retail clerks bargaining unit in connection with work
`related to the meat, delicatessen and seafood departments; or (g) in response
`to a specific customer request.
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`
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`Section 2 B. Vendor Work. Direct store vendors who deliver the product
`categories of beverages (including juice sold in produce/deli departments), cookies
`and crackers, bakery, pizza, ice cream, specialty/gourmet/natural foods and chips,
`shall be allowed to perform all work in connection with the sale of their products
`directly delivered to the store. For purposes of this provision, the product categories
`as used herein shall be interpreted to include all products delivered by such vendor.
`Additionally, all vendors shall be allowed to stock and otherwise maintain any J-
`Hook or Clip strip program. Additionally, all vendors may perform: any work in
`connection with promotional and seasonal displays; facing in connection with the
`service of product; rotation of product; cleaning of product, shelves and racks;
`affixing coupons and other promotional materials to products; vendors shall be
`permitted to perform three (3) major resets per store, per section, per calendar year.
`Additionally, vendors may perform work, as necessary to accommodate the
`introduction of new items, or removal of discontinued items, from the set; checking
`of code dates and removal of out-dated product; and any work in connection with
`the opening of a new store and the two (2) week period hereafter, or during the two
`(2) weeks before and after a store remodel.
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`Section 2 C. A Journeyman Meat Cutter shall be on duty in each store a
`minimum of eight (8) hours per calendar day. Hours scheduled in the classifications
`of Head Meat Cutter and 1st Cutter may be used to satisfy this obligation. The
`Employer agrees not to layoff a Journeyman Meat cutter hired and assigned to a
`retail store position on or before March 5, 2005 as the direct result of this section.
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`Section 2 D. Retail Clerks may assist in meat department cleanup work,
`provided such assignments do not conflict with applicable child labor and/or health
`and safety regulations.
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`Section 3. It is understood that the cutting or preparation of meats that are
`cut, processed or prepared on the Employer’s premises for immediate human
`consumption will continue to be performed in the market located on the Employer’s
`premises, unless the Employer transfers said work, in which case the following
`paragraph will be applicable: If the Employer transfers the cutting and fabricating
`of retail cuts of fresh meats performed in its retail store or stores covered by this
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`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 6 of 21
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`agreement to a location or locations outside of said retail store or stores, the
`Employer will continue to recognize the Union as the bargaining agent for the meat
`cutters, apprentices and wrappers employed by the Employer in the cutting and
`fabricating of retail cuts of fresh meat, and the seniority rights provided in this
`agreement shall continue to apply throughout the bargaining unit, including said
`new location or locations of the Employer.
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`Section 3 A. Notwithstanding anything contained herein to the contrary, the
`Employer shall not be restricted in, or prohibited from, obtaining and offering for
`sale fresh, smoked, cured, cooked and frozen meats, poultry, fish or seafood which
`have been cut, prepared, processed, packaged, weighed and/or priced off the
`Employer’s premises and it is expressly understood and agreed that such shall not
`constitute a violation of this agreement. Notwithstanding the preceding sentence,
`the Employer agrees that no head meat cutter, first cutter, journeyman meat cutter
`or apprentice meat cutter assigned to one of the aforementioned classifications by
`the Employer on or before May 11, 1996 shall be laid off or reduced in scheduled
`hours. The Employer shall have the right to transfer and/or schedule meat cutters
`in more than one (1) store within the bargaining unit and/or adjacent bargaining
`unit (s) as may be necessary to fulfill this obligation, except that the Employer shall
`not schedule such employees for split shifts.
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`The Employer shall continue to have the right to layoff employees in
`accordance with the provisions of this agreement, provided that the layoff of any
`meat wrapper, butcher block, seafood clerk or delicatessen clerk assigned to such
`classification on or before May 11, 1996, is for reasons other than the Employers
`utilization of the products set forth in Section 3A above. It is understood and agreed
`that in meeting the job guarantees contained herein the Employer shall have the
`right to assign any higher classified employee to perform work in a lower
`classification.
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`In the event of a store closure, or plant closure, resulting in the layoff of any
`head meat cutter, first cutter, journeyman meat cutter, apprentice meat cutter or
`meat wrapper, such affected employee (s) shall be permitted to exercise his
`seniority to displace the least senior meat cutter or meat wrapper in the involved
`bargaining unit as provided for herein, or, at the affected employee’s discretion, the
`least senior meat cutter or meat wrapper in the State of Colorado. Such least senior
`meat cutter or meat wrapper affected by the exercise of the most senior meat cutter’s
`or meat wrapper’s seniority shall be laid-off. It is understood that in applying this
`provision meat cutters may displace only meat cutters and meat wrappers may
`displace only meat wrappers.
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`Section 4. In the event of the closure of the King Soopers Meat Plant, meat
`cutters and meat wrappers assigned to the Retail Cut Line on the date of closure
`who elect to receive severance, as provided for in this agreement, in lieu of
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`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 7 of 21
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`exercising their seniority rights contained in this agreement shall be paid a
`severance supplemental payment equal to fifty percent (50%) of the severance
`amount such employee is eligible to receive under the store and plant closing
`provision of this agreement. It is understood and agreed that in the event a retail cut
`line meat cutter or meat wrapper covered under this provision elects to bump into
`a store, the affected store employee subject to layoff shall be eligible for the plant
`closing severance pay as provided herein. For all other plant classifications
`impacted by a plant closure, the Employer agrees to discuss with the Union the
`effects of such decision.
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`Section 5. No employee shall be required to maintain restrooms.
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`Exhibit 2 at Art. 2.
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`The parties’ agreements provide three categories of exceptions to the exclusivity of
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`bargaining unit work:
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` The specific King Soopers’ positions of “Store Managers, Assistant Store Managers,
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`and Field Merchandisers” can perform bargaining unit work in the stores. Exhibit 1 at
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`Article 2. (Specific individuals permitted to perform the work):
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`“Store Managers, Assistant Managers, Field Merchandisers can perform all duties in the store.”
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`Exhibit 1 at Article 2.
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` “Sanitation and Floor Maintenance” work may be subcontracted. Exhibit 1 at Article
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`2. (Specific work which can be subcontracted):
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`“Except for sanitation and floor maintenance, the Employer agrees not to subcontract operations
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`existing within the stores.” Exhibit 1 at Article 2.
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` “Direct store vendors” who deliver certain enumerated products can be utilized to
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`perform certain types of work. Id. “Direct store vendors” means a vendor that delivers
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`a product in an enumerated category directly to the store, as opposed to products that
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`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 8 of 21
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`come in from King Soopers’ warehouse (Limitation on both specific individuals and
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`the work they may perform).
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`Except as provided for in these three exceptions, all stocking work within the store is
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`bargaining unit work. Declaration of Kim Cordova (“Cordova Declaration”) at ¶¶ 4-6.
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`The parties are presently in the process of bargaining for new agreements to replace the
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`current agreements set to expire on January 8, 2022. For months, King Soopers has admitted to
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`Local 7 that the wages it is paying to workers is inadequate to attract and retain workers.
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`Cordova Declaration at ¶ 24. Prior to the incidents discussed herein, King Soopers offered to
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`raise wages, but only for certain geographic areas and limited to new hires – which would have
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`resulted in a raise for approximately 25% of bargaining unit workers but which would leave the
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`remaining 75% of bargaining unit workers with nothing. Id. at ¶ 28. Although Local 7 made a
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`counterproposal for wage increases for all bargaining unit workers while the parties negotiate
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`successor collective bargaining agreements, King Soopers rejected the proposal. Id. Instead of
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`negotiating further with the Union, Defendant instead chose to deal with its inability to hire by
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`unlawfully outsourcing work in violation of the CBAs. Id.
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`In late November 2021, Local 7 learned that third parties were performing bargaining
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`unit work in some of Defendant’s stores in the Denver and Colorado Springs bargaining units.
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`Cordova Declaration at ¶ 9. Specifically, that third parties were performing bargaining unit work,
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`including, but not limited to stocking, facing, and handling merchandise, in a manner which is
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`prohibited by the CBAs. Id.
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`For example, on December 3, 2021, union representative Tyson Kehm personally
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`observed workers who identified themselves as employees of Retail Odyssey. Declaration of
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`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 9 of 21
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`Tyson Kehm (“Kehm Declaration”) at ¶¶ 4-8. These employees were observed stocking products
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`in refrigerated and/or freezer cases at King Soopers store 100. Id. In another instance, union
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`representative Jennifer Streifel received a report from workers about Retail Odyssey workers in
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`the store from a bargaining unit employee who works at the store. Upon filing a grievance with
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`the store manager, the manager admitted that the Retail Odyssey employee had been performing
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`regular duties of bargaining unit night crew workers all week. Declaration of Jennifer Streifel
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`(“Streifel Declaration”) at ¶¶ 4-6. In yet another instance, workers at Store 82 observed and
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`photographed four Day Ready workers performing bargaining unit work such as stocking.
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`The third parties performing bargaining unit work are not direct store vendors. See, e.g.,
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`Cordova Decl. at ¶ 19; Kehm Declaration at ¶ 10; Streifel Declaration at ¶ 4. In each of these
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`cases, the Union has filed a grievance over these issues, and the Company has denied the
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`grievance. The above-referenced grievances are just some of the examples of bargaining unit
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`work performed by third parties including Retail Odyssey and Day Ready, but are emblematic of
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`the larger disregard for bargaining unit work protections demonstrated by King Soopers.
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`Local 7 confronted Defendant with information it had learned about the staffing services’
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`workers, and some of the documentary evidence it had gathered, including photographs and
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`timesheets provided by the third-party workers reflecting that, contrary to the assurances of King
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`Soopers’ leadership, the work being performed was the unpacking of pallets sent from King
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`Soopers’ warehouse (known in workplace jargon as “throwing the load”). Streifel Declaration at
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`¶ 4. In the face of these confrontations, some of Defendant’s representatives shifted their
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`explanations, and Defendant began providing inconsistent information to Local 7. Athar
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`Bilgrami, Human Resources Leader told Local 7 President Kim Cordova that the workers were
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`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 10 of 21
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`only performing sanitation and floor maintenance services and that they were not stocking,
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`despite photographic evidence to the contrary. Cordova Declaration at ¶ 16. Kroger Vice
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`President of Labor Relations Leroy Westmoreland promised that any improper work would
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`cease, although it did not cease. Id. at ¶ 12. Meanwhile Raymond Deeny, King Soopers’
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`attorney, wrote that these workers were performing a “reset,” despite the fact that the work was
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`not being performed by a “direct store vendor.” Id at ¶ 22.
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`Disputes between the Parties are subject to a mandatory grievance and arbitration
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`procedure. See Exhibit 1 at Art. 43; Exhibit 2 at Art. 48. Plaintiff filed at least four (4) separate
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`grievances concerning the CBA violations. See Exhibits 3-6; Kehm Declaration ¶ 13; Streifel
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`Declaration ¶ 7. Pursuant to the terms of the parties’ agreements, these grievances are subject to
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`mandatory arbitration.
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`In addition to verbal discussions, Local 7 made a number of requests that King Soopers
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`provide written assurances that it would cease and desist from using these third-party entities to
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`perform bargaining unit work and provide several categories of information relevant to the
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`grievances. Cordova Declaration at ¶ 13. Among these requests are a letter from Local 7
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`President Cordova to King Soopers’ President Joe Kelly and a letter from Local 7 General
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`Counsel Mathew Shechter to King Soopers’ attorney Raymond Deeny. See Exhibits 7, 9. King
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`Soopers ignored Local 7’s information requests4 set forth in these communications and failed to
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`provide any written assurances that the conduct would cease – indeed, King Soopers instead
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`denied the violations – at least in writing. Exhibits 8, 10.
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`4 The failure to respond to the information requests is presently before the National Labor Relations Board in an
`unfair labor practice proceeding, NLRB case number pending.
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`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 11 of 21
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`Although this matter is subject to a mandatory grievance and arbitration procedure under
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`the parties’ CBAs, disputes between the parties typically take a year or more to reach an
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`arbitration hearing. See Cordova Declaration at ¶ 27. These CBA violations are often extremely
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`difficult for the Union to identify, as a third-party worker may be in the store for perfectly
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`legitimate reasons one day and performing bargaining unit work the next. Id. Moreover, third-
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`party workers for some direct-delivery vendors may be permitted to stock certain items on the
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`shelves directly, while an employee of a third-party staffing service or even a different vendor, is
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`not permitted to stock the same exact product. Id. at ¶ 4-8. Vendors are not always readily
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`identifiable or distinguishable from one another. Id. at ¶ 19. The difficulty in identifying
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`violations is compounded by the Defendant’s refusal to provide information about the third-party
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`workers in the stores and their activities. Id. at ¶¶ 14-15.
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`LEGAL STANDARD
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`The Norris-LaGuardia Act, 29 U.S.C. §§ 101-115 (1976) generally prohibits federal
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`courts from issuing injunctions in labor disputes. However, the Supreme Court recognized that
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`an employer in a federal court action brought pursuant to § 301 (a) of Labor Management
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`Relations Act (LMRA) could secure an injunction against a strike if the collective bargaining
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`agreement between the parties contained a no-strike provision and if the strike involved a
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`grievance that the parties agreed to submit to arbitration. See Boys Markets, Inc. v. Retail Clerks
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`Local 770, 398 U.S. 235 (1970). The Supreme Court narrowed this exception further in Buffalo
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`Forge Co. v. United Steelworkers, by allowing court to enjoin strikes only if the dispute
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`underlying it is subject to the arbitration provision of the contract. 428 U.S. 397 (1976).
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`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 12 of 21
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`However, this Court has the jurisdiction to issue an injunction, as this falls under the one
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`of the exceptions that have been carved out. The line of cases following Boys Market and Buffalo
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`Forge, do not limit the court from only enjoining strikes but allow Court to enjoin actions to
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`maintain the status quo. In fact, the Tenth Circuit held “that Boys Market injunctions are
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`available to enjoin employer breaches of collective bargaining agreements which threaten the
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`arbitral process.” Amoco 885 F.2d at 702. Oil, Chemical and Atomic Workers International
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`Union, AFL-CIO, Local 2-286 v. Amoco Oil Co., 885 F.2d 697, 703 (10th Cir. 1989).
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`The right of federal courts to issue injunctions like that sought here is well established.
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`See Machinists Local Lodge 1266 v. Panoramic Corp., 668 F.2d 276, 279 (7th Cir. 1981)
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`(Federal courts have the authority, in aid of arbitration, to enjoin employer actions.); Lever
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`Brothers Co. v. International Chemical Workers, Local 217:
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`An injunction to preserve the status quo pending arbitration may be issued either
`against a company or against a union in an appropriate in an appropriate Boys
`Markets case where it is necessary to prevent conduct by the party enjoined from
`rendering the arbitral process a hollow formality in those instances, where, as here,
`the arbitral award when rendered could not return the parties substantially to the
`status quo ante.
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`554 F.2d 115, 123 (4th Cir. 1976).
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`The Tenth Circuit articulated a a six-factor test in Oil, Chemical and Atomic Workers
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`International Union, AFL-CIO, Local 2-286 v. Amoco Oil Co., to assess whether it should issue a
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`preliminary injunction to maintain the status quo in a labor dispute. 885 F.2d 697 (10th Cir.
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`1989). The moving party must show: (1) the dispute is subject to mandatory arbitration under the
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`labor contract; (2) that the arbitrable dispute is the underlying dispute and not a collateral one;
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`(3) the moving party will suffer irreparable injury without such an injunction; (4) the balance of
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`hardship favors it; (5) that is has a probability of success on the merits, and (6) that the injunction
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`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 13 of 21
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`is in the public interest. Id. See also Dillon Co. v. Food and Commercial Workers Local 7, Civil
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`Action No. 09-cv-01364-PAB-BNB., 2009 BL 138962, at *7-8 (D. Colo. June 23, 2009).
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`ARGUMENT
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`Plaintiff can satisfy all six elements of the Tenth Circuit test for a preliminary injunction.
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`Accordingly, this Court should grant injunctive relief to maintain the status quo pending
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`arbitration.
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`I.
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`The Dispute is Subject to Mandatory Arbitration Under the Parties’ Collective
`Bargaining Agreement
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`The party seeking an injunction must first show that the dispute is subject to mandatory
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`arbitration under the parties’ contract. Amoco, 885 F.2d at 703. Here, it is indisputable that issues
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`concerning the scope or performance of bargaining unit work are subject to mandatory
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`arbitration under the parties’ collective bargaining agreement. As articulated supra, the CBAs
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`contain provisions detailing the scope of bargaining unit and prohibitions on third parties
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`performing such work. The CBAs likewise contain broad provisions outlining the disputes
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`subject to the grievance and arbitration procedure:
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`Should any dispute or complaint arise over the interpretation or application of this
`Agreement, there shall be an earnest effort on the part of the parties to settle such
`promptly through the following steps . . .
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`Exhibit 1 at Art. 43; Exhibit 2 at Art. 48 (emphasis added). The CBAs then detail the procedure
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`leading to arbitration.
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` First, the parties hold a Step 1 meeting, essentially an informal conversation among the
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`parties concerning the disputed issue.
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`
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`If the parties fail to resolve the dispute at Step 1, it proceeds to Step 2, where the Union
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`reduces it to writing and the parties hold another meeting.
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`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 14 of 21
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`
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`If the grievance is not resolved at Step 2, either party may request arbitration, and “the
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`other party shall be obligated to proceed with arbitration” following the process outlined
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`in the CBAs.
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`Exhibit 1 at Art. 43; Exhibit 2 at Art. 48 (emphasis added).
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`The dispute here, which concerns the interpretation and application of bargaining unit
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`work outlined in Article 2 of the CBAs, clearly falls within the matters subject to the parties’
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`mandatory arbitration procedure.
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`Accordingly, Local 7 has, in accordance with this procedure, filed grievances against
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`Defendant for the same violations outlined above, see Exhibits 3-6 (as well as countless other
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`grievances alleging improper use of third parties to perform exclusive bargaining unit work,
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`some of which have proceeded to arbitration).
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`II.
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`The Arbitrable Dispute is the Underlying Dispute and is Not Collateral
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`The same question is presented in the grievances and this arbitration – namely, whether
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`the whether the work currently being performed by third parties in Defendant’s stores is
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`permissible under the contract. Thus, the arbitrable dispute is the underlying dispute, and is not
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`collateral to the issues before this Court. See Dillon Co., 2009 BL 138962, at *8 (the dispute
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`before the court is not collateral where the same question is presented in the pending grievances
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`subject to arbitration as is presented in the lawsuit).
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`III.
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`Plaintiff Will Continue to Suffer Irreparable Injury Without an Injunction
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`Next, a Plaintiff seeking to maintain the status quo pending arbitration pursuant to the
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`principles of Boys Market must show that they are suffering and will continue to suffer
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`irreparable injury, which in in this context requires “an injury that would undermine the integrity
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`of the arbitration integrity of arbitration process by making the reward only an ‘empty victory.’”
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`Amoco, 885 F.2d at 704 (citations omitted); see Local Lodge No. 1266, Int'l Ass'n of Machinists
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`& Aerospace Workers, AFL-CIO v. Panoramic Corp., 668 F.2d 276, 285 (7th Cir. 1981).
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`If not enjoined, any arbitral award will be at best an impartial remedy