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United Food & Commercial Workers International Union, Local No. 7 v. King Soopers Inc.

United States District Court, D. Colorado

April 20, 2016

KING SOOPERS, INC., Defendant.



This matter arises from Plaintiff’s complaint to compel arbitration pursuant to Article 43 under a collective bargaining agreement between the parties. Now before the Court for resolution are cross-motions for summary judgment: (1) Defendant’s Motion for Summary Judgment and Brief in Support (ECF No. 27); and (2) Plaintiff’s Motion for Summary Judgment (ECF No. 29). Upon consideration of the motions, the court file, and the applicable rules, statutes, and case law, and being otherwise fully advised, the Court DENIES Defendant’s motion and GRANTS Plaintiff’s motion.


Plaintiff and Defendant are signatories to a collective bargaining agreement (the “Agreement”) with a stated “Term” of May 10, 2009 through September 14, 2013. Defendant owns and operates approximately 145 stores with in-store pharmacies. Three types of employees work in the pharmacies - pharmacists, pharmacy technicians (“pharmacy techs”), and pharmacy interns. Pharmacy techs are a classification of workers covered under the Agreement. Some, but not all, of the pharmacy techs are represented by Plaintiff. All the work performed in the pharmacies is required to be performed under the license of the pharmacist on duty; therefore, the pharmacist is responsible for delegating tasks to pharmacy techs and pharmacy interns. Among the tasks which pharmacists may delegate to pharmacy techs are entering prescription orders into the computer system; counting pills or pouring liquids into prescription bottles, referred to as “product dispensing” or “filling”; putting labels on prescription bottles; and handing out prescriptions to customers.

Beginning in 2011, some of Defendant’s pharmacies began using Central Fill as a prescription medication vendor. Defendant’s pharmacists retain discretion to decide which prescriptions will be filled by Central Fill. Central Fill employs, among others, pharmacists and pharmacy techs. The “vast” or “large” majority of prescription orders received by Central Fill are filled through an automated process through the use of machines. After the prescriptions are filled, they are delivered by a third-party delivery service to Defendant’s stores. Approximately 15% to 18% of Defendant’s prescription orders are filled by Central Fill; the remaining prescriptions are filled by Defendant’s pharmacists, pharmacy techs, and pharmacy interns.

Since 2011, Plaintiff has filed more than 100 grievances alleging that non-bargaining unit employees (here, Central Fill employees) are performing bargaining unit work. Plaintiff’s grievances allege that Defendant is violating the subcontracting clause (Article 2, Section 4) in the Agreement by subcontracting - to Central Fill employees - the work of filling prescriptions, and of transporting prescriptions to Defendant’s stores. Section 4 of the Agreement provides, in relevant part, “[e]xcept for sanitation and floor maintenance, the Employer [Defendant] agrees not to subcontract operations existing within the stores….”

In this case, only four grievances are at issue.[1] Plaintiff demanded arbitration on these grievances, but Defendant will not arbitrate. When Defendant refused to arbitrate, Plaintiff filed this action to compel Defendant to arbitrate the four grievances. In response, Defendant filed a counterclaim alleging Plaintiff’s grievances, demand to arbitrate the grievances, and lawsuit are unfair labor practices which violate the National Labor Relations Act (“NLRA”), entitling Defendant to relief under the Labor Management Relations Act (“LMRA”). Defendant is not facially challenging the Agreement or its provisions governing arbitration or the subcontracting clause. Instead, Defendant is challenging the Union’s interpretation of the Agreement - arguing that the Union is trying to enforce an interpretation of the Agreement which violates the NLRA.


Summary judgment is appropriate only if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem. Coal Co., Inc., 41 F.3d 567, 569-70 (10th Cir. 1994). “A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion . . . .” Robertson v. Bd. of Cty. Comm’rs of the Cty. of Morgan, 78 F.Supp.2d 1142, 1146 (D. Colo. 1999) (citation omitted). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000). Once the moving party meets its initial burden of demonstrating an absence of a genuine dispute of material fact, the burden then shifts to the non-moving party to move beyond the pleadings and to designate evidence which demonstrates the existence of a genuine dispute of material fact to be resolved at trial. See 1-800-Contacts, Inc. v., Inc., 722 F.3d 1229, 1242 (10th Cir. 2013) (citation omitted). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248. In considering whether summary judgment is appropriate, the facts must be considered in a light most favorable to the non-moving party. Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013) (citations omitted).

If a movant properly supports a motion for summary judgment, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing a genuine factual issue for trial. Fed.R.Civ.P. 56(e); Scott v. Harris, 550 U.S. 372, 380 (2007) (holding that “[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact”) (citation omitted). “If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact . . ., the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it; or (4) issue any other appropriate order.” Fed.R.Civ.P. 56(e). “[C]onclusory, self-serving, and generalized denials” are insufficient to defeat summary judgment. Sartori v. Susan C. Little & Associates, P.A., 571 F. App’x 677, 680 (10th Cir. 2014).


A. The parties agreed to arbitrate the dispute

“[A]rbitration is a creature of contract[;] [therefore] a party cannot be forced to arbitrate any issue he has not agreed to submit to arbitration.” Commc’ns Workers of Amer v. Avaya, Inc., 693 F.3d 1295, 1300 (10th Cir. 2012). There is a presumption in favor of arbitration in labor relations matters. Id. Thus, a dispute under a collective bargaining agreement must be arbitrated unless “‘it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’” Id. (quoting United Steel Workers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960)). The court determines as a threshold matter whether the parties consented to submit a particular dispute to arbitration. Id.; see also John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 547 (1964).

Under Article 43 of the Agreement, the parties agreed that “[s]hould any dispute or complaint arise over the interpretation or application of this Agreement, ” the parties are required to engage in a two-step process and “may” engage in a third-step - arbitration. At Step 3, a party “may” request arbitration and, if requested, “the other party shall be obligated to proceed with arbitration in the manner hereinafter provided [in the Agreement].” (ECF No. 29-3, page 56 ...

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