throbber
Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 1 of 21
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`
`
`
`Civil Action No. ______________________
`
`
`
`
`UNITED FOOD AND COMMERICAL WORKERS INTERNATIONAL
`UNION, LOCAL 7, AFL-CIO
`
`Plaintiffs,
`
`
`
`
`v.
`
`DILLON COMPANIES, LLC d/b/a KING SOOPERS,
`
`
`
`
`
`Defendant.
`
`PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
`
`
`
`
`
`COMES NOW United Food and Commercial Workers International Union, AFL-CIO,
`
`Local 7 (collectively, the “Plaintiff” or “Local 7”), by and through undersigned counsel,
`
`respectfully moves for a preliminary injunction pending pursuant to Fed. R. Civ. P. 65(a) as
`
`more fully set forth herein.
`
`OVERVIEW AND FACTUAL BACKGROUND
`
`
`
`This action arises out of a series of collective bargaining agreements (the “CBAs”)
`
`entered into between Plaintiff and Defendant Dillon Companies, LLC d/b/a King Soopers
`
`(hereinafter “Defendant” or “King Soopers”). Pursuant to the terms of the CBAs,1 the bargaining
`
`
`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
`
`
`

`

`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 2 of 21
`
`unit workers represented by Local 7 have the exclusive right to perform work “connected with
`
`the handling or selling of merchandise” within the stores, with certain exceptions discussed
`
`herein. In or around November of 2021, Plaintiff first became aware that King Soopers was
`
`utilizing third-party staffing services to provide employees performing bargaining unit work.
`
`Bargaining unit members and Local 7 staff have discovered that at least two different
`
`entities, Retail Odyssey and Day Ready/People Ready, whose workers were in the stores
`
`performing bargaining unit work. Although these entities apparently provide what is, at times,
`
`permissible services (according to King Soopers representatives, Day Ready/People Ready
`
`provide sanitation and floor maintenance services2 within the stores and Retail Odyssey performs
`
`store resets3), they were instead observed stocking the shelves (in one case, a frozen case), which
`
`is exclusively bargaining unit work.
`
`The collective bargaining agreement covering retail clerk workers provides:
`
`ARTICLE 2
`BARGAINING UNIT WORK JURISDICTION
`
`
`
`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.
`
`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.
`
`
`
`2
`
`

`

`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 3 of 21
`
`
`Bargaining Note: Bakery Clerks shall remain in the Clerks Pension.
`
`
`AUTHORIZED WORK FOR VENDORS
`
`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.
`
`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.
`
`
`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.
`
`
`
`
`
`
`
`3
`
`

`

`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 4 of 21
`
`The collective bargaining agreement covering meat bargaining unit workers provides:
`
`ARTICLE 2
`SERVICE IN MEAT-DELICATESSEN DEPARTMENTS, PLANTS
`
`
`
`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.
`
`
`Bargaining Note: Bakery Clerks are not permitted to work in the Meat and
`Seafood/Butcher Block.
`
`
`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.
`
`
`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.
`
`
`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:
`
`
`1) This does not include the transaction of the checkstand.
`
`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
`
`
`
`4
`
`

`

`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 5 of 21
`
`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.
`
`
`
`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.
`
`
`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.
`
`
`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.
`
`
`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
`
`
`
`5
`
`

`

`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 6 of 21
`
`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.
`
`
`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.
`
`
`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.
`
`
`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.
`
`
`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
`
`
`
`6
`
`

`

`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 7 of 21
`
`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.
`
`Section 5. No employee shall be required to maintain restrooms.
`
`Exhibit 2 at Art. 2.
`
`The parties’ agreements provide three categories of exceptions to the exclusivity of
`
`bargaining unit work:
`
` The specific King Soopers’ positions of “Store Managers, Assistant Store Managers,
`
`and Field Merchandisers” can perform bargaining unit work in the stores. Exhibit 1 at
`
`Article 2. (Specific individuals permitted to perform the work):
`
`“Store Managers, Assistant Managers, Field Merchandisers can perform all duties in the store.”
`
`Exhibit 1 at Article 2.
`
` “Sanitation and Floor Maintenance” work may be subcontracted. Exhibit 1 at Article
`
`2. (Specific work which can be subcontracted):
`
`“Except for sanitation and floor maintenance, the Employer agrees not to subcontract operations
`
`existing within the stores.” Exhibit 1 at Article 2.
`
` “Direct store vendors” who deliver certain enumerated products can be utilized to
`
`perform certain types of work. Id. “Direct store vendors” means a vendor that delivers
`
`a product in an enumerated category directly to the store, as opposed to products that
`
`
`
`7
`
`

`

`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 8 of 21
`
`come in from King Soopers’ warehouse (Limitation on both specific individuals and
`
`the work they may perform).
`
`
`
`Except as provided for in these three exceptions, all stocking work within the store is
`
`bargaining unit work. Declaration of Kim Cordova (“Cordova Declaration”) at ¶¶ 4-6.
`
`The parties are presently in the process of bargaining for new agreements to replace the
`
`current agreements set to expire on January 8, 2022. For months, King Soopers has admitted to
`
`Local 7 that the wages it is paying to workers is inadequate to attract and retain workers.
`
`Cordova Declaration at ¶ 24. Prior to the incidents discussed herein, King Soopers offered to
`
`raise wages, but only for certain geographic areas and limited to new hires – which would have
`
`resulted in a raise for approximately 25% of bargaining unit workers but which would leave the
`
`remaining 75% of bargaining unit workers with nothing. Id. at ¶ 28. Although Local 7 made a
`
`counterproposal for wage increases for all bargaining unit workers while the parties negotiate
`
`successor collective bargaining agreements, King Soopers rejected the proposal. Id. Instead of
`
`negotiating further with the Union, Defendant instead chose to deal with its inability to hire by
`
`unlawfully outsourcing work in violation of the CBAs. Id.
`
`In late November 2021, Local 7 learned that third parties were performing bargaining
`
`unit work in some of Defendant’s stores in the Denver and Colorado Springs bargaining units.
`
`Cordova Declaration at ¶ 9. Specifically, that third parties were performing bargaining unit work,
`
`including, but not limited to stocking, facing, and handling merchandise, in a manner which is
`
`prohibited by the CBAs. Id.
`
`For example, on December 3, 2021, union representative Tyson Kehm personally
`
`observed workers who identified themselves as employees of Retail Odyssey. Declaration of
`
`
`
`8
`
`

`

`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 9 of 21
`
`Tyson Kehm (“Kehm Declaration”) at ¶¶ 4-8. These employees were observed stocking products
`
`in refrigerated and/or freezer cases at King Soopers store 100. Id. In another instance, union
`
`representative Jennifer Streifel received a report from workers about Retail Odyssey workers in
`
`the store from a bargaining unit employee who works at the store. Upon filing a grievance with
`
`the store manager, the manager admitted that the Retail Odyssey employee had been performing
`
`regular duties of bargaining unit night crew workers all week. Declaration of Jennifer Streifel
`
`(“Streifel Declaration”) at ¶¶ 4-6. In yet another instance, workers at Store 82 observed and
`
`photographed four Day Ready workers performing bargaining unit work such as stocking.
`
`The third parties performing bargaining unit work are not direct store vendors. See, e.g.,
`
`Cordova Decl. at ¶ 19; Kehm Declaration at ¶ 10; Streifel Declaration at ¶ 4. In each of these
`
`cases, the Union has filed a grievance over these issues, and the Company has denied the
`
`grievance. The above-referenced grievances are just some of the examples of bargaining unit
`
`work performed by third parties including Retail Odyssey and Day Ready, but are emblematic of
`
`the larger disregard for bargaining unit work protections demonstrated by King Soopers.
`
`Local 7 confronted Defendant with information it had learned about the staffing services’
`
`workers, and some of the documentary evidence it had gathered, including photographs and
`
`timesheets provided by the third-party workers reflecting that, contrary to the assurances of King
`
`Soopers’ leadership, the work being performed was the unpacking of pallets sent from King
`
`Soopers’ warehouse (known in workplace jargon as “throwing the load”). Streifel Declaration at
`
`¶ 4. In the face of these confrontations, some of Defendant’s representatives shifted their
`
`explanations, and Defendant began providing inconsistent information to Local 7. Athar
`
`Bilgrami, Human Resources Leader told Local 7 President Kim Cordova that the workers were
`
`
`
`9
`
`

`

`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 10 of 21
`
`only performing sanitation and floor maintenance services and that they were not stocking,
`
`despite photographic evidence to the contrary. Cordova Declaration at ¶ 16. Kroger Vice
`
`President of Labor Relations Leroy Westmoreland promised that any improper work would
`
`cease, although it did not cease. Id. at ¶ 12. Meanwhile Raymond Deeny, King Soopers’
`
`attorney, wrote that these workers were performing a “reset,” despite the fact that the work was
`
`not being performed by a “direct store vendor.” Id at ¶ 22.
`
`Disputes between the Parties are subject to a mandatory grievance and arbitration
`
`procedure. See Exhibit 1 at Art. 43; Exhibit 2 at Art. 48. Plaintiff filed at least four (4) separate
`
`grievances concerning the CBA violations. See Exhibits 3-6; Kehm Declaration ¶ 13; Streifel
`
`Declaration ¶ 7. Pursuant to the terms of the parties’ agreements, these grievances are subject to
`
`mandatory arbitration.
`
`In addition to verbal discussions, Local 7 made a number of requests that King Soopers
`
`provide written assurances that it would cease and desist from using these third-party entities to
`
`perform bargaining unit work and provide several categories of information relevant to the
`
`grievances. Cordova Declaration at ¶ 13. Among these requests are a letter from Local 7
`
`President Cordova to King Soopers’ President Joe Kelly and a letter from Local 7 General
`
`Counsel Mathew Shechter to King Soopers’ attorney Raymond Deeny. See Exhibits 7, 9. King
`
`Soopers ignored Local 7’s information requests4 set forth in these communications and failed to
`
`provide any written assurances that the conduct would cease – indeed, King Soopers instead
`
`denied the violations – at least in writing. Exhibits 8, 10.
`
`
`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.
`
`
`
`10
`
`

`

`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 11 of 21
`
`Although this matter is subject to a mandatory grievance and arbitration procedure under
`
`the parties’ CBAs, disputes between the parties typically take a year or more to reach an
`
`arbitration hearing. See Cordova Declaration at ¶ 27. These CBA violations are often extremely
`
`difficult for the Union to identify, as a third-party worker may be in the store for perfectly
`
`legitimate reasons one day and performing bargaining unit work the next. Id. Moreover, third-
`
`party workers for some direct-delivery vendors may be permitted to stock certain items on the
`
`shelves directly, while an employee of a third-party staffing service or even a different vendor, is
`
`not permitted to stock the same exact product. Id. at ¶ 4-8. Vendors are not always readily
`
`identifiable or distinguishable from one another. Id. at ¶ 19. The difficulty in identifying
`
`violations is compounded by the Defendant’s refusal to provide information about the third-party
`
`workers in the stores and their activities. Id. at ¶¶ 14-15.
`
`LEGAL STANDARD
`
`The Norris-LaGuardia Act, 29 U.S.C. §§ 101-115 (1976) generally prohibits federal
`
`courts from issuing injunctions in labor disputes. However, the Supreme Court recognized that
`
`an employer in a federal court action brought pursuant to § 301 (a) of Labor Management
`
`Relations Act (LMRA) could secure an injunction against a strike if the collective bargaining
`
`agreement between the parties contained a no-strike provision and if the strike involved a
`
`grievance that the parties agreed to submit to arbitration. See Boys Markets, Inc. v. Retail Clerks
`
`Local 770, 398 U.S. 235 (1970). The Supreme Court narrowed this exception further in Buffalo
`
`Forge Co. v. United Steelworkers, by allowing court to enjoin strikes only if the dispute
`
`underlying it is subject to the arbitration provision of the contract. 428 U.S. 397 (1976).
`
`
`
`11
`
`

`

`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 12 of 21
`
`However, this Court has the jurisdiction to issue an injunction, as this falls under the one
`
`of the exceptions that have been carved out. The line of cases following Boys Market and Buffalo
`
`Forge, do not limit the court from only enjoining strikes but allow Court to enjoin actions to
`
`maintain the status quo. In fact, the Tenth Circuit held “that Boys Market injunctions are
`
`available to enjoin employer breaches of collective bargaining agreements which threaten the
`
`arbitral process.” Amoco 885 F.2d at 702. Oil, Chemical and Atomic Workers International
`
`Union, AFL-CIO, Local 2-286 v. Amoco Oil Co., 885 F.2d 697, 703 (10th Cir. 1989).
`
`The right of federal courts to issue injunctions like that sought here is well established.
`
`See Machinists Local Lodge 1266 v. Panoramic Corp., 668 F.2d 276, 279 (7th Cir. 1981)
`
`(Federal courts have the authority, in aid of arbitration, to enjoin employer actions.); Lever
`
`Brothers Co. v. International Chemical Workers, Local 217:
`
`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.
`
`554 F.2d 115, 123 (4th Cir. 1976).
`
`The Tenth Circuit articulated a a six-factor test in Oil, Chemical and Atomic Workers
`
`International Union, AFL-CIO, Local 2-286 v. Amoco Oil Co., to assess whether it should issue a
`
`preliminary injunction to maintain the status quo in a labor dispute. 885 F.2d 697 (10th Cir.
`
`1989). The moving party must show: (1) the dispute is subject to mandatory arbitration under the
`
`labor contract; (2) that the arbitrable dispute is the underlying dispute and not a collateral one;
`
`(3) the moving party will suffer irreparable injury without such an injunction; (4) the balance of
`
`hardship favors it; (5) that is has a probability of success on the merits, and (6) that the injunction
`
`
`
`12
`
`

`

`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 13 of 21
`
`is in the public interest. Id. See also Dillon Co. v. Food and Commercial Workers Local 7, Civil
`
`Action No. 09-cv-01364-PAB-BNB., 2009 BL 138962, at *7-8 (D. Colo. June 23, 2009).
`
`ARGUMENT
`
`Plaintiff can satisfy all six elements of the Tenth Circuit test for a preliminary injunction.
`
`Accordingly, this Court should grant injunctive relief to maintain the status quo pending
`
`arbitration.
`
`I.
`
`The Dispute is Subject to Mandatory Arbitration Under the Parties’ Collective
`Bargaining Agreement
`
`The party seeking an injunction must first show that the dispute is subject to mandatory
`
`arbitration under the parties’ contract. Amoco, 885 F.2d at 703. Here, it is indisputable that issues
`
`concerning the scope or performance of bargaining unit work are subject to mandatory
`
`arbitration under the parties’ collective bargaining agreement. As articulated supra, the CBAs
`
`contain provisions detailing the scope of bargaining unit and prohibitions on third parties
`
`performing such work. The CBAs likewise contain broad provisions outlining the disputes
`
`subject to the grievance and arbitration procedure:
`
`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 . . .
`
`Exhibit 1 at Art. 43; Exhibit 2 at Art. 48 (emphasis added). The CBAs then detail the procedure
`
`leading to arbitration.
`
` First, the parties hold a Step 1 meeting, essentially an informal conversation among the
`
`parties concerning the disputed issue.
`
`
`
`If the parties fail to resolve the dispute at Step 1, it proceeds to Step 2, where the Union
`
`reduces it to writing and the parties hold another meeting.
`
`
`
`13
`
`

`

`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 14 of 21
`
`
`
`If the grievance is not resolved at Step 2, either party may request arbitration, and “the
`
`other party shall be obligated to proceed with arbitration” following the process outlined
`
`in the CBAs.
`
`Exhibit 1 at Art. 43; Exhibit 2 at Art. 48 (emphasis added).
`
`The dispute here, which concerns the interpretation and application of bargaining unit
`
`work outlined in Article 2 of the CBAs, clearly falls within the matters subject to the parties’
`
`mandatory arbitration procedure.
`
`Accordingly, Local 7 has, in accordance with this procedure, filed grievances against
`
`Defendant for the same violations outlined above, see Exhibits 3-6 (as well as countless other
`
`grievances alleging improper use of third parties to perform exclusive bargaining unit work,
`
`some of which have proceeded to arbitration).
`
`II.
`
`The Arbitrable Dispute is the Underlying Dispute and is Not Collateral
`
`The same question is presented in the grievances and this arbitration – namely, whether
`
`the whether the work currently being performed by third parties in Defendant’s stores is
`
`permissible under the contract. Thus, the arbitrable dispute is the underlying dispute, and is not
`
`collateral to the issues before this Court. See Dillon Co., 2009 BL 138962, at *8 (the dispute
`
`before the court is not collateral where the same question is presented in the pending grievances
`
`subject to arbitration as is presented in the lawsuit).
`
`III.
`
`Plaintiff Will Continue to Suffer Irreparable Injury Without an Injunction
`
`
`
`Next, a Plaintiff seeking to maintain the status quo pending arbitration pursuant to the
`
`principles of Boys Market must show that they are suffering and will continue to suffer
`
`irreparable injury, which in in this context requires “an injury that would undermine the integrity
`
`
`
`14
`
`

`

`Case 1:21-cv-03473 Document 1 Filed 12/28/21 USDC Colorado Page 15 of 21
`
`of the arbitration integrity of arbitration process by making the reward only an ‘empty victory.’”
`
`Amoco, 885 F.2d at 704 (citations omitted); see Local Lodge No. 1266, Int'l Ass'n of Machinists
`
`& Aerospace Workers, AFL-CIO v. Panoramic Corp., 668 F.2d 276, 285 (7th Cir. 1981).
`
`If not enjoined, any arbitral award will be at best an impartial remedy

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket