By Max Kutner

Law360 (March 22, 2021, 4:54 PM EDT) -- A lower court wrongly denied grocers' attempt to stop the city of Long Beach, California, from carrying out an allegedly unconstitutional ordinance granting a pandemic pay bump to supermarket workers, an association argued in the opening salvo of its Ninth Circuit appeal.

In a brief on Friday, the California Grocers Association argued that the city's ordinance is preempted by the National Labor Relations Act and violates the equal protection clauses of the federal and state constitutions by singling out only certain businesses for restrictions, contrary to a district court ruling in February.

"The ordinance does not impose any public health measures or otherwise protect essential workers from the virus. Instead, it targets a narrow band of businesses within the city," CGA said in its filing. "This novel measure cannot be reconciled with the governing requirements of California and federal law."

The lower court had ruled that CGA was unlikely to succeed on the merits of its claims challenging the Premium Pay for Grocery Workers Ordinance, which the city passed in January.

But the association on Friday stood by its arguments that the ordinance was preempted by the NLRA and violated equal protection clauses.

The ordinance "dictates the terms of collective bargaining agreements," so the NLRA preempts the mandate because it interferes in the bargaining process, the association argued.

And the ordinance violates the equal protection clauses of the U.S. and California constitutions because it restricts only certain businesses, the association argued.

"By forcing a narrow subset of grocers to deviate from their existing contractual arrangements, the ordinance treats them differently than other similarly situated employers of frontline workers," CGA said in the filing.

The lower court reached its decision by applying a rational basis review to the ordinance, but CGA argued that strict scrutiny was warranted instead.

"While wage and employment laws may fall within a state's general police power, that does not mean that such laws are exempt from heightened scrutiny," CGA said in the filing. "The ordinance cannot survive heightened scrutiny."

Friday's brief is the latest development in the ongoing dispute between CGA and Long Beach over the "hero pay" ordinance. The association first sued the city in January to block the mandate, claiming it was unconstitutional.

The district court initially denied a bid in January for a temporary restraining order to halt the ordinance and then also denied the request for an injunction.

In February, United Food and Commercial Workers International Union Local 324 sought to join the case so that it could help the city defend the ordinance. The judge granted the request.

Similar lawsuits are playing out over pandemic pay in other places, including in Seattle, where a judge on Thursday granted the city's motion to dismiss a suit by a pair of food industry groups. Like the judge in the Long Beach case, the Seattle judge rejected arguments that federal labor law preempted the ordinance or that it violated equal protection rights.

Counsel in the Seattle case, which includes the same counsel as those representing CGA in the Long Beach case, are appealing that ruling.

A spokesperson for CGA said in an email to Law360 on Monday, "CGA is going to let the filing speak for itself."

Counsel for the parties and a spokesperson for Long Beach did not immediately respond to requests for comment.

CGA is represented by Tritia Miyuki Murata, Byung-Kwan Park, Robert Santos Sandoval, William Tarantino and James Sigel of Morrison & Foerster LLP.

Long Beach is represented by Christopher M. Pisano of Best Best & Krieger LLP.

The case is California Grocers Association v. City of Long Beach et al., case number 21-55174, in the U.S. Court of Appeals for the Ninth Circuit.

--Editing by Haylee Pearl.

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