09/11/2025: GC Declines to Bring Complaint Against Albertsons for Not Hiring King Soopers Strikers
Also workers misclassified as independent contractors cleared for union vote.
King Soopers, 27-CA-336005 (Advice Memo)
This case-closing memorandum addresses unfair labor practice charges filed against Kroger Co./King Soopers and Albertsons/Safeway involving events during a January 2022 strike. The memo analyzes two key issues: whether emails between the companies constituted an unlawful agreement violating Section 8(a)(3), and whether the companies violated Section 8(a)(5) by failing to furnish these communications to the union.
The United Food and Commercial Workers Local 7 represented approximately 12,000 King Soopers employees and 6,000 Albertsons/Safeway employees in Colorado and Wyoming. During 2021-2022 contract negotiations, the union determined insufficient progress was being made with King Soopers and voted to strike. Before the strike began, the union requested information from both employers regarding "any agreements and/or understandings" between them relating to ongoing negotiations or potential disputes.
During the strike preparation period, King Soopers emailed Albertsons/Safeway asking about their intentions regarding union communications telling striking employees they could work at Safeway. Albertsons/Safeway responded: "We don't intend to hire any King Soupers [sic] employees." Both companies responded to the union's information requests by stating no agreements existed between them. The strike lasted from January 12-21, 2022, with no evidence that any King Soopers employee applied for employment at Albertsons/Safeway.
Nearly two years later, in February 2024, when the Colorado Attorney General filed an antitrust lawsuit against the proposed Kroger-Albertsons merger, the email exchange was publicly disclosed. The union subsequently filed unfair labor practice charges.
The Division of Advice concluded there was no Section 8(a)(3) violation because:
The email correspondence did not constitute an agreement between the employers but merely expressed Albertsons/Safeway's unilateral intent.
No King Soopers employee applied for or was denied employment, meaning no adverse employment action occurred.
An essential element of a Section 8(a)(3) violation - that an employer takes employment-related action to encourage or discourage union activity - was missing.
Regarding the Section 8(a)(5) allegations, the Division found:
The email communications did not constitute an "agreement" that would need to be disclosed.
Any potential need for the information became moot when the union obtained the emails through the Colorado Attorney General's lawsuit.
The memo advised dismissing both charges.
Significant Cases Cited
Troy Grove, 372 NLRB No. 94 (2023): Layoff notices rescinded before taking effect did not violate Section 8(a)(3) because no adverse employment action occurred.
Bellagio, LLC, 362 NLRB 1426 (2015): Established that an employer's refusal to hire job applicants in retaliation for strike activity can violate Section 8(a)(3).
Allina Health System d/b/a Abbott Northwestern Hospital, 343 NLRB 498 (2004): Found Section 8(a)(3) violation where identified striking employees had applied to work with a non-struck employer.
NRG Services, Inc., 28-RC-350562 (Regional Election Decision)
In this case, the Regional Director issued a Decision and Direction of Election regarding a petition filed by International Alliance of Theatrical Stage Employees, Local No. 423 seeking to represent employees of NRG Services, Inc., a company providing labor for concert productions in Albuquerque, New Mexico.
The decision addresses two main issues: (1) whether most of the petitioned-for employees are independent contractors excluded from NLRA coverage, and (2) what eligibility formula should be used for voting.
Background
NRG Services provides workers for concert venues in Albuquerque, primarily at Isleta Amphitheatre and other smaller venues. The company classifies some employees as "regular" W-2 employees and others as 1099 independent contractors. This classification change occurred in 2021 after the COVID-19 pandemic, based on advice from the company's accountant.
Independent Contractor Analysis
The Regional Director applied the test from The Atlanta Opera (2023), which reinstated the legal standard from FedEx Home Delivery (2014). Under this standard, the Regional Director analyzed various factors:
Extent of Control: The Employer assigns positions and supervises workers, though third parties also provide instructions. The Employer controls shift times, breaks, and can issue discipline.
Distinct Occupation/Business: The workers operate under the Employer's brand and must wear company-branded shirts.
Direction and Supervision: Workers are supervised by the Employer but also receive direction from third parties, making this factor inconclusive.
Skill Required: Most positions require minimal skills with on-the-job training, though some roles like riggers require more skill.
Tools and Equipment: Workers must provide some of their own tools, which favors independent contractor status.
Length of Employment: Most workers have long-term relationships with the Employer but can choose when to accept jobs, making this factor inconclusive.
Method of Payment: The Employer pays hourly wages with overtime but doesn't withhold taxes from 1099 workers, though it does provide workers' compensation insurance.
Regular Business: The workers are integral to the Employer's core business of providing labor for concert events.
Intent: While some workers understand their 1099 status, there was no evidence of bargaining over terms.
Independent Business Analysis: Workers can work for multiple employers but have limited entrepreneurial opportunity and control over their work.
Based on these factors, the Regional Director concluded the workers are employees, not independent contractors.
Eligibility Formula
For the election, the Regional Director rejected both the Employer's proposal (five shows during the busy season) and the Union's proposed Davison-Paxon formula. Instead, following American Zoetrope, the Director established that employees who worked at least two events within the twelve months preceding the decision would be eligible to vote.
Election Details
The decision directs a mail-ballot election rather than the manual election both parties requested, as the workers report to various venues and don't have a common workplace.
Significant Cases Cited
The Atlanta Opera, Inc., 372 NLRB No. 95 (2023): Reinstated the FedEx Home Delivery test for determining independent contractor status.
FedEx Home Delivery, 361 NLRB 610 (2014): Established the test for determining independent contractor status using common-law agency principles.
American Zoetrope, 207 NLRB 621 (1973): Established appropriate eligibility formula for entertainment industry employees who work intermittently.
Davison-Paxon Co., 185 NLRB 21 (1970): Set forth a formula for determining voter eligibility based on hours worked.
Sisters' Camelot, 363 NLRB 162 (2015): Applied independent contractor analysis in a case with similar factors regarding control and entrepreneurial opportunity.