A federal judge on Wednesday determined he could legally consider the request of a grocery workers’ union to block King Soopers from using non-union personnel to tend to garden displays, a move the United Food and Commercial Workers alleges is in violation of their labor contract.

UFCW’s Local 7 represents retail and meat department workers at more than 100 King Soopers and City Market stores in Colorado. Earlier this month, the union filed for a preliminary injunction, claiming King Soopers’ parent organization, Dillon Companies, began using a contractor to handle outside plant displays at its stores when the collective bargaining agreement guarantees that union workers perform those tasks.

While the agreement is subject to arbitration, UFCW pointed out the process of resolving the dispute would leave its members with no remedy for missed hours during the spring and summer plant season. According to the agreement, errors in assigning shifts require King Soopers to let workers make up the hours within four weeks — an impossibility once the season is over.

U.S. District Court Judge Gordon P. Gallagher agreed the alleged actions of King Soopers would “frustrate” the arbitration process by leaving the arbitrator without a way to make employees whole under the contract.

“Given the amount of daily work that is potentially being improperly assigned by Dillon here,” Gallagher wrote on April 26, “and the duration of the seasonal program (Dillon represents that the program will remain in effect through the ‘end of summer,’ spanning as much as four-five months), an arbitrator may wind up concluding that the Union is entitled to recoup several hundred hours per store.”

However, he continued, “given the contract’s four-week limitation on recouping awards of improperly assigned hours, it may very well be impractical, if not mathematically impossible, for the Union to enjoy the benefits of an arbitral ruling in its favor.”

Given those dynamics, Gallagher found he had the ability to address the union’s request prior to arbitration. He scheduled a hearing for Friday to consider evidence, which may result in a preliminary injunction against King Soopers.

UFCW and King Soopers arrived at the current collective bargaining agreement following a brief strike in early 2022. The contract provides for union employees to pick up shifts during the peak season for bedding plants, which lasts from April to June. The outside flower and plant displays continue in some form until October. The plant season generates an extra 20-40 hours of work per week at each location, on average.

In early 2023, King Soopers announced it would use employees from vendor National Garden Services to handle aspects of the outdoor plant displays. In response, Local 7 president Kim Cordova emailed the company that she “does not agree to the outsourcing and or subcontracting of bargaining unit work.”

Pursuant to the union contract, regional leaders in Denver, Colorado Springs and Pueblo filed grievances against King Soopers, which would proceed to arbitration. However, they also moved for judicial intervention, arguing that an arbitrator, months in the future, could not adequately remedy the lost hours during the plant season — as no shifts would be available to make up after the season is over.

On April 18, Gallagher initially declined to grant a temporary restraining order to block King Soopers from using outside workers to tend to plant displays. But he recognized further evidence might change the outcome and held a hearing on Tuesday in downtown Denver.

At the hearing, the union’s lawyer clarified it was not seeking to have King Soopers end its vendor relationship with National Garden Services.

“It’s a question of how far that relationship goes,” said Caren P. Sencer. “We’re asking for the bargaining unit to maintain the increased work it has seen in prior seasons.”

Gallagher asked King Soopers’ attorney what the harm would be from a preliminary injunction. Patrick R. Scully responded that the goal of using plant contractors was to create a more “attractive display” and increase store business overall, creating more shift opportunities for everyone. Union employees could suffer if King Soopers stores experience the “loss of an increase in business.”

“Sure, but that’s their problem, if the union asks for this and their members suffer for it,” Gallagher said.

Scully then alleged, should union employees be allowed to handle the plant displays and store business drops, “if a supermarket fails in a particular neighborhood, that has an impact on the community as well.”

“Frankly, that seems a little extreme,” Gallagher interjected. “The work is still getting done, the sales are still getting made. Seems hard to imagine that stores are gonna fail and the like during this time period.”

The judge will now hear evidence before deciding whether to issue a preliminary injunction.

The case is United Food and Commercial Workers, Local 7 v. Dillon Companies, LLC.