Friday, November 25, 2011
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Grocers Ask Supreme Court to Block Los Angeles Worker Retention Ordinance
By KENNETH OFGANG, Staff Writer
A trade group has asked the United States Supreme Court to overturn a Los Angeles ordinance that generally requires the new owner of a large grocery store to retain the existing workforce for 90 days.
The California Grocers Association filed its petition for writ of certiorari on Nov. 16, asking the justices for review of California Grocers Association v. City of Los Angeles (2011) 52 Cal.4th 177. The association is represented by the Sacramento-based Pacific Legal Foundation.
“This law is a brazen scheme to punish non-union employers,” PLF Principal Attorney Timothy Sandefur said in a statement Wednesday. “But federal law prohibits localities from muscling in on the bargaining process between businesses and unions. To be specific, the National Labor Relations Act bars states and local governments from interfering with the bargaining of unions and employers, yet that’s exactly what L.A. has done through this ordinance.”
State Preemption
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. But the state high court overturned that ruling on July 18, holding 6-1 that the ordinance, enacted in 2005, falls within the code’s exception for health and safety regulations and is not preempted by federal labor law.
The city contends 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.
The grocery operators claim the law, which was enacted shortly after the announcement that the Albertsons chain was being sold, was solely enacted as job-protection measure. They contend 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.
Werdegar Opinion
Justice Kathryn M. Werdegar, writing for the state 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.
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.
Grimes Dissent
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 law violates the principle of collective bargaining, Grimes argued, because it requires an employer to take on “a group of workers that it did not choose” and to grant them benefits, such as termination for cause only, “to which the new employer did not agree.”
The ordinance also directly impacts the bargaining process, the dissenting jurist wrote, because it may result in the new employer being deemed the successor to the former one, obligating it to bargain with the incumbent union.
Copyright 2011, Metropolitan News Company