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Union Asks To Join Suit To Back Grocer 'Hero Pay' Law

By Max Kutner · 2021-02-10 18:52:13 -0500

A United Food and Commercial Workers International Union local asked a California federal court to let it intervene in a state grocers association's suit challenging a Long Beach wage hike due to the COVID-19 pandemic so that it can defend itself.

UFCW Local 324, which represents grocery store workers in Long Beach, said in a motion to intervene Tuesday that the court should let it help the city defend its "hero pay" ordinance providing a pay bump to grocery store workers against a challenge by the California Grocers Association. Local 324 argued that the group mentioned the union in its complaint, so the court should let the union defend itself. 

The lawsuit "seeks to punish Local 324 for engaging in constitutionally protected petitioning activity to pass legislation beneficial to the grocery store workers it represents and to discredit that legislation based on Local 324's advocacy," the union said. "Local 324 is entitled to intervene to protect its right to engage in the legislative process."

Local 324 had advocated for the legislation, which the city passed in January. It requires grocery stores above a certain size to pay workers an extra $4 an hour to compensate them for working during the pandemic. The ordinance is an emergency measure and expires after 120 days unless the city extends it, according to the union's filing.

As Local 324 pointed out in its filing, the grocers association mentioned the union in its suit, saying in the complaint: "No significant and legitimate public purpose exists for the ordinance. The city's stated objectives are merely an attempt to impose a public policy rationale on interest-group driven legislation for labor unions and, in particular, for UFCW 324." 

Local 324 also said it did not believe that Long Beach could adequately fight for the union, because governments are concerned with representing the broader public, whereas the union is focused more narrowly on grocery workers' interests.

"Although the city has a general interest in defending the ordinance, it does not have the same interest in responding to CGA's attempt to use Local 324's collective bargaining as a weapon against Local 324's members," the union said in its filing.

The union argued that it can help the city defend the ordinance, given its "significant knowledge of the grocery retail industry in general and the city's grocery industry in particular."

Long Beach and CGA did not oppose the union's intervention, the union said.

The grocers association sued the city in January over its Premium Pay for Grocery Workers Ordinance, which required certain grocery stores to temporarily increase workers' pay. The association argued that the measure was unconstitutional and that the National Labor Relations Act preempted it.

Besides the pay increase, the ordinance also enabled grocery store workers to sue employers for violations, according to a judge's order in the case.

In January, CGA filed for a temporary restraining order to halt enforcement of the ordinance. But the judge refused to block it while litigation moved forward, saying the group had failed "to establish how it will be irreparably prejudiced or harmed if the underlying request for injunctive relief is heard according to noticed motion procedures."

Derek Smith, the political director for Local 324, said the union needs to intervene so that it can protect its members' interests.

"It is our belief that the intent of the grocers association is not really to prevail in this lawsuit; it's to chill other cities' desire to do similar kinds of ordinances," Smith told Law360 on Wednesday. "That affects UFCW, that affects our membership and thus we have a stake in this."

William F. Tarantino of Morrison & Foerster LLP, who represents the grocers association, had no comment other than to point out that the association has not opposed the union's motion.

A grocers association spokesperson deferred comment to counsel.

Christopher M. Pisano of Best Best & Krieger LLP, who represents the city, declined to comment.

Counsel for union was not immediately available to comment.

A city spokesperson also was not immediately available.

The California Grocers Association is represented by William F. Tarantino, Byung-Kwan Park, Robert Santos Sandoval and Tritia M. Murata of Morrison and Foerster LLP.

The city is represented by Christopher M. Pisano of Best Best & Krieger LLP.

The union is represented by Paul L. More and Luke Dowling of McCracken Stemerman & Holsberry LLP.

The case is California Grocers Association v. City of Long Beach, case number 2:21-cv-00524, in the U.S. District Court for the Central District of California.

--Additional reporting by Melissa Angell. Editing by Neil Cohen.

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