A federal judge on Wednesday rejected a request to block King Soopers and City Market from using contractors to perform certain tasks on outdoor plant displays – a practice the union representing retail workers alleged is in violation of their collective bargaining agreement.

U.S. District Court Judge Gordon P. Gallagher decided the United Food and Commercial Workers Local 7 failed to show how it would experience “irreparable harm” if the grocery chain’s parent organization, Dillon Companies, continued to allow non-union labor to tend in limited fashion to the bedding plants that will be on display until the fall.

At the same time, Gallagher acknowledged his ruling was in large part due to King Soopers’ directive, issued only after UFCW filed its lawsuit, clarifying that contractors would not be performing work traditionally reserved for union employees. He also observed UFCW and King Soopers harbored noticeable “animosity” toward each other.

“It may be that, in time, the Union may develop evidence of large-scale or systemic violations of the policy, at which point the Court would be amenable to reopening this matter,” Gallagher wrote in his May 3 order.

Spokespersons for King Soopers and UFCW did not immediately respond to a request for comment.

In mid-April, UFCW moved for a preliminary injunction after King Soopers and City Market began bringing employees of National Garden Services into stores to assist with plant and flower displays. The union argued King Soopers intended to use the contractors for watering, handling merchandise and cleaning outdoor areas, which were previously the tasks of store employees. During the peak season, there are an additional 20-40 hours per store per week, on average, available to union workers for those responsibilities.

However, the collective bargaining agreement does not allow employees to receive back pay for work that is improperly assigned to contractors. Instead, employees have a right to make up the hours within four weeks. The union argued that, by the time an arbitrator hears the dispute, the season will be over and the extra hours will have evaporated, making a judge’s intervention necessary.

“As of now, no floral department employee has received additional hours since the start of the bedding plant season even though the season began more than two weeks ago and thus sales have begun in earnest,” the union’s lawyers wrote. “As we are now in late April, hours should have already increased but have not.”

On Friday, Gallagher held a hearing to review documents and listen to testimony. The judge learned that, in the past, King Soopers and City Market would purchase plants from a supplier and sell them at a profit. If the products ended up damaged or unsellable, the stores would take the loss. This year, the supplier is retaining ownership of the plants and National Garden Services’ role is effectively to perform quality control onsite.

On March 4, floral department managers received an email notifying them National Garden Services workers would be coming in to assist with watering and handling plants. Eugene Wright, a longtime manager currently at a King Soopers in Colorado Springs, said a woman named Marcia soon arrived at his store and was “not very clear” about her job title.

“She’s been in my department since April and she’s been there every day. Double checking, watering, double checking the product quality,” Wright said.

He added that he has seen no increase in his part-time workers’ hours, unlike years past.

Anthony Cox, a floral department manager in Highlands Ranch, similarly testified to “a lot of confusion” about the work National Garden Services workers are supposed to be doing.

On April 24, four days before the court hearing, King Soopers sent guidance clarifying that store employees, not contractors, are responsible for watering and maintaining plants and monitoring the displays. A representative from the company testified he did not personally witness the tasks that contractors were performing between March 4 and April 24, but he alleged King Soopers would lose $2 million if it was prevented from using National Garden Services workers.

King Soopers argued the collaboration was meant to increase sales and provide more hours of work for union employees. Instead, the company was met with over 60 union grievances.

“Truly, no good deed goes unpunished,” wrote King Soopers’ lawyers after the hearing. UFCW is “determined to destroy what is most certainly a felicitous and legitimate business move for all concerned.”

Gallagher agreed that an arbitrator might not be able to make the union whole if the ultimate finding is that King Soopers improperly assigned hundreds of hours of union work to contractors at each store. But the April 24 clarification of National Garden Services’ role made it significantly less likely the union would be harmed, given the limited duties now in place for contractors.

“The April 24 document, delayed as it may have been, clearly reflects Dillon’s current policy that work traditionally performed by bargaining unit employees on bedding plants (e.g., watering, trimming, merchandising, etc.) will continue to be assigned to bargaining unit members and that such work will not be performed by NGS employees,” Gallagher wrote.

He added in closing that the relationship between the union and the grocery giant was “particularly acrimonious,” which may have prevented them from resolving the dispute out of court.

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