Tuesday, July 19, 2011
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Supreme Court Upholds L.A. Grocery Worker Retention Ordinance
By KENNETH OFGANG, Staff Writer
A Los Angeles ordinance that generally requires the new owner of a large grocery store to retain the existing workforce for 90 days is not preempted by state or federal law, and is constitutional, the California Supreme Court ruled yesterday.
In a 6-1 decision, the justices overturned lower court decisions in favor of the California Grocers Association. Div. Five of this district’s Court of Appeal ruled two years ago that the city could not enact such an ordinance because the Legislature occupied the field by enacting the California Retail Food Code.
Los Angeles Superior Court Judge Ralph Dau had reached the same conclusion. But the city argued successfully that that the ordinance, enacted in 2005, falls within the code’s exception for health and safety regulations.
The city contended that requiring retention of the existing work force guarantees that employees familiar with procedures for safe handling of food products are on hand to train their replacements during the transition.
Job Protection
The grocery operators claimed the law, which was enacted shortly after the announcement that the Albertsons chain was being sold, was solely enacted as job-protection measure. Dau and the Court of Appeal agreed, and also concluded that the National Labor Relations Act preempts the ordinance—which was backed by organized labor and the Los Angeles Alliance for a New Economy—because it allows unionized stores to negotiate alternative arrangements through collective bargaining.
But Justice Kathryn M. Werdegar, writing for the high court, rejected the state and federal preemption arguments, as well as the claim that the distinctions between large and small groceries, and between grocers and other types of businesses that sell food, violated the plaintiff’s equal protection rights.
Noting that a number of cities around the state have been recently enacting worker retention ordinances, Werdegar said there is no conflict between the Los Angeles ordinance and the Retail Food Code.
“The Retail Food Code establishes standards for what certain employees, particularly one certified owner or supervising food service employee, must know or be taught, but does not regulate who must be hired; the Ordinance regulates the pool of nonsupervising, nonmanagerial employees from which a new owner temporarily must hire, but imposes no standards concerning what the hired employees must know or be taught about food safety,” the jurist explained.
Nor, she wrote, does the NLRA preclude the adoption of worker retention ordinances.
Congressional Intent
The justice said plaintiffs failed to meet the burden of establishing congressional intent to preempt state law. The National Labor Relations Board, she noted, has not taken a position on the question, which has been before its administrative law judges in several cases.
The lone dissenter was Court of Appeal Justice Elizabeth Grimes of this district’s Div. Eight, sitting on assignment. Grimes said the history and intent of the NLRA supports preemption.
“In my view, the ordinance intrudes on the collective bargaining process in an extraordinary and fundamental way, at its very source,” Grimes wrote.
The case is California Grocers Association v. City of Los Angeles, 11 S.O.S. 3935.
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