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California Grocers Association v. City of Los Angeles

July 18, 2011

CALIFORNIA GROCERS ASSOCIATION, PLAINTIFF AND RESPONDENT,
v.
CITY OF LOS ANGELES, DEFENDANT AND APPELLANT;
LOS ANGELES ALLIANCE FOR A NEW ECONOMY, INTERVENOR AND APPELLANT.



Court: Superior County: Los Angeles Judge: Ralph W. Dau Ct.App. 2/5 B206750 Super. Ct. No. BC351831

The opinion of the court was delivered by: Grimes, J.*fn24

Los Angeles County

The City of Los Angeles, like numerous other municipalities in California and elsewhere, regulates the ability of certain employers to summarily replace the workforce upon acquiring a new business. Is such a worker retention ordinance preempted as intruding upon either matters of health and safety already regulated by the state or matters of employee organization and collective bargaining fully occupied by federal law? We conclude it is not. As well, we conclude the challenged ordinance is fully consistent with both the state and federal equal protection clauses. As the Court of Appeal found the ordinance preempted, we reverse.

Factual and Procedural Background

In December 2005, the City of Los Angeles (City) adopted the Grocery Worker Retention Ordinance (Ordinance). (L.A. Ord. No. 177,231, adding ch. XVIII, § 181.00 et seq. to L.A. Mun. Code.)*fn1 For grocery stores of a specific size (15,000 square feet or larger) that undergo a change of ownership, the Ordinance vests current employees with certain individual rights during a 90-day transition period. First, the incumbent owner is to prepare a list of nonmanagerial employees with at least six months' employment as of the date of transfer in ownership, and the successor employer must hire from that list during the transition period. (L.A. Mun. Code, § 181.02.) Second, during that same period, the hired employees may be discharged only for cause. (Id., § 181.03(A)-(C).) Third, at the conclusion of the transition period, the successor employer must prepare a written evaluation of each employee's performance. The Ordinance does not require that anyone be retained, but if an employee's performance is satisfactory, the employer must "consider" offering continued employment. (Id., § 181.03(D).) If the workforce is unionized, however, the union and the employer may agree on terms that supersede the Ordinance. (Id., § 181.06.)

Plaintiff California Grocers Association (Grocers) filed a complaint against the City seeking to enjoin enforcement of the Ordinance on the grounds that it was preempted by provisions of the Health and Safety Code, the Labor Code, and federal labor law, and that it violated the equal protection provisions of the state and federal Constitutions. The Los Angeles Alliance for a New Economy, a nonprofit organization, intervened to defend the Ordinance.

After a two-day bench trial, the trial court entered a judgment enjoining enforcement of the Ordinance, declaring it void on two of the four asserted grounds. The court concluded the Ordinance affected health and sanitation standards for retail food establishments, an area fully occupied by state law, and was on that basis preempted, and further concluded the Ordinance violated equal protection because there was no rational basis for its differential treatment of grocery stores smaller than 15,000 square feet or its permitting employers and unions to contract around the Ordinance's terms.

A divided Court of Appeal affirmed. The majority agreed with the trial court that the California Retail Food Code (Retail Food Code) (Health & Saf. Code, § 113700 et seq.) fully occupied the field of health and sanitation standards for retail food establishments, and the Ordinance had the impermissible purpose and effect of regulating in the same area. It further concluded, contrary to the trial court, that the Ordinance was also preempted by the National Labor Relations Act (NLRA or the Act) (29 U.S.C. § 151 et seq.) because, in the majority's view, federal labor law guaranteed successor employers the right to pick and choose whom they wished to employ, free of local regulation. The majority did not address the trial court's further equal protection conclusions. In contrast, the dissent argued that the Ordinance was neither preempted nor inconsistent with equal protection principles.

We granted review to resolve significant preemption and constitutional questions placing into doubt the validity of this and other similar worker retention ordinances throughout the state.

Discussion

I. State Preemption

A. Preemption Principles

Local ordinances and regulations are subordinate to state law. (Cal. Const., art. XI, § 7.) Insofar as a local regulation conflicts with state law, it is preempted and invalid. (O'Connell v. City of Stockton (2007) 41 Cal.4th 1061, 1067; Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897.) " ' "A conflict exists if the local legislation ' "duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication." ' " [Citations.]' " (O'Connell, at p. 1067, quoting Sherwin-Williams, at p. 897; accord, American Financial Services Assn. v. City of Oakland (2005) 34 Cal.4th 1239, 1251.)

Only the last of these bases for conflict, field preemption, is at issue here. "Local legislation enters an area 'fully occupied' by general law when the Legislature has expressly manifested its intent to fully occupy the area or when it has impliedly done so in light of recognized indicia of intent." (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1150.) Grocers contend the Ordinance impermissibly intrudes into an area the state has, in the Retail Food Code, expressly reserved for itself. (See Health & Saf. Code, § 113705.) Express field preemption turns on a comparative statutory analysis: What field of exclusivity does the state preemption clause define, what subject matter does the local ordinance regulate, and do the two overlap? (See, e.g., Big Creek Lumber, at pp. 1152-1157; Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 748-751.) The burden of proving the existence of such an overlap rests on Grocers, as the party asserting preemption. (Big Creek Lumber, at p. 1149.)

B. Express Preemption

We begin with the language of the preemption clause and the Ordinance. Health and Safety Code section 113705's definition of the regulatory field it reserves for the state is clear and precise: "Except as provided in Section 113709,[*fn2 ] it is the intent of the Legislature to occupy the whole field of health and sanitation standards for retail food facilities, and the standards set forth in this part and regulations adopted pursuant to this part shall be exclusive of all local health and sanitation standards relating to retail food facilities." Thus, the state alone may adopt "health and sanitation standards for retail food facilities." (Ibid.) The remainder of the statutory scheme demonstrates by way of example the precise scope of exclusive state regulation, comprehensively detailing standards for, e.g., employee training on health matters (id., §§ 113947-113947.3), employee health and hygiene (id., §§ 113949-113978), food transportation, storage, and preparation (id., §§ 113980-114057.1), food display and service (id., §§ 114060-114083), food labeling (id., §§ 114087-114094), the design and sanitizing of food preparation areas and utensils (id., §§ 114095-114185.5), and the design and cleanliness of food facilities (id., §§ 114250-114282).*fn3

In contrast, the Ordinance imposes no substantive food safety standards. Its provisions regulate, for certain grocery stores during ownership transitions, how a new owner may select its workforce. (See generally L.A. Mun. Code, §§ 181.02-181.04.) It does not speak to how employees must conduct themselves to ensure sanitation, how food should be handled or transported, how grocery stores should be designed or cleaned, or any of the various other topics for which the Retail Food Code sets out exclusive state standards. The face of the Ordinance thus discloses no incursion into the exclusive realm reserved for the state by Health and Safety Code section 113705; the former regulates employment, not food safety, while the latter regulates food safety, not employment.

In concluding that the Ordinance nevertheless is preempted, the Court of Appeal majority relied on language in the Ordinance's preamble and statements by City officials indicating the City, in passing the Ordinance, was concerned with promoting health and safety. The preamble notes in part: "The City has an interest in ensuring the welfare of the residents of [Los Angeles] through the maintenance of health and safety standards in grocery establishments. Experienced grocery workers with knowledge of proper sanitation procedures, health regulations, and understanding of the clientele and communities they serve are instrumental in furthering this interest." (L.A. Mun. Code, § 181.00.) Remarks by members of the city attorney's office and some city council members during deliberations similarly suggest the promotion of health and safety may have been a City concern.

We may accept for the sake of argument that the promotion of health and safety was one of the City's purposes in passing the Ordinance. That the Ordinance is preempted does not, however, follow. Purpose alone is not a basis for concluding a local measure is preempted.*fn4 While we and the Courts of Appeal have occasionally treated an ordinance's purpose as relevant to state preemption analysis (see, e.g., Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 809-810; Bravo Vending v. City of Rancho Mirage (1993) 16 Cal.App.4th 383, 404-409), we have done so in the context of a nuanced inquiry into the ultimate question in determining field preemption: whether the effect of the local ordinance is in fact to regulate in the very field the state has reserved to itself.

Thus, in Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, we upheld against a preemption challenge a local ordinance requiring a permit to provide an escort service. The state had impliedly occupied the field with respect to the criminalization of prostitution and sexual conduct. (See In re Lane (1962) 58 Cal.2d 99, 103.) Although the ordinance's likely purpose was to reduce vice and deter conduct proscribed by the state, this purpose did not support preemption: "An ordinance is not transformed into a statute prohibiting crime simply because the city uses its licensing power to discourage illegitimate activities associated with certain businesses. Most licensing ordinances have a direct impact on the enforcement of state laws which have been enacted to preserve the health, safety and welfare of state and local citizens. This fact does not deprive a municipality of the power to enact them." (Cohen, at p. 299.) The ordinance in actual effect did not enter the field of criminalizing sexual conduct, but only controlled who might operate an escort service, leaving the regulation of any such conduct to the state; as such, it was not preempted. (Id. at pp. 295-296, 299-300; see also EWAP, Inc. v. City of Los Angeles (1979) 97 Cal.App.3d 179, 191 [upholding an ordinance regulating picture arcades so as to discourage violations of state law, without criminalizing or imposing any new standard for sexual conduct]; cf. Lancaster v. Municipal Court, supra, 6 Cal.3d at pp. 809-810 [concluding an ordinance was preempted where its effect was to criminalize aspects of sexual conduct].)

Similarly, in Bravo Vending v. City of Rancho Mirage, supra, 16 Cal.App.4th 383, a tobacco company challenged a local ordinance forbidding vending machine cigarette sales. The tobacco company contended that, because the ordinance was intended to reduce sales to minors and the state had expressly occupied the field of penal sanctions for sales to minors, the ordinance was preempted. The Court of Appeal found no preemption. While the local ordinance was intended to make less likely violations of the laws against sales to minors, in actual effect it neither expanded upon nor detracted from the state-mandated prohibitions and sanctions for sales. (Id. at p. 412.)

More recently, in Personal Watercraft Coalition v. Marin County Bd. of Supervisors (2002) 100 Cal.App.4th 129, the Court of Appeal rejected the argument that, because a municipality had adopted an ordinance banning the use of personal watercraft out of a concern for pollution, the ordinance was preempted by federal law prohibiting the adoption of state and local emission standards for nonroad vehicles. The Court of Appeal correctly recognized that the purpose of the federal preemption provision was only to alleviate the problems that would arise from "a multiplicity of conflicting state and local exhaust emission standards." (Id. at p. 155.) Consequently, state and local laws were preempted only to the extent they adopted such standards. Laws that simply promoted the same antipollution goals without setting pollution standards were entirely valid. (Ibid.)

These cases are on point here. The Retail Food Code does not preempt all laws that have as their purpose the promotion of food health and safety; it preempts only those that establish "health and sanitation standards" for retail food establishments, so as to ensure uniformity for such facilities. (Health & Saf. Code, § 113705.) The Retail Food Code itself dictates those uniform standards, but does not specify by whom they are to be carried out; as far as state law is concerned, a retail food store may employ whomever it likes, so long as those it employs comply with the state's standards for distributing food in a safe and healthful manner. For its part, the Ordinance, like the escort service ordinance in Cohen v. Board of Supervisors, supra, 40 Cal.3d 277, regulates only who may be hired to engage in certain work, and though it may have been intended in part to reduce violations of state law by those workers, it does not itself add to or subtract from the state's uniform standards of conduct for whoever engages in that work. Like the watercraft ordinance in Personal Watercraft Coalition v. Marin County Bd. of Supervisors, supra, 100 Cal.App.4th 129, the Ordinance promotes the same goals as the enactment of a higher governmental authority, but does so without entering the field that enactment preempts, i.e., the setting of specific uniform standards. The trial court erred in concluding that, because the Ordinance arguably was intended to enact "a different approach to ensuring food safety than that crafted by the Legislature," ipso facto it was preempted.

Grocers argue, purpose aside, that the Ordinance goes beyond issues of worker retention and does impose food sanitation standards. As foundation for this argument, Grocers focus on the portion of the Retail Food Code that regulates employee training and knowledge. (See Health & Saf. Code, §§ 113947-113947.6.) Health and Safety Code section 113947, subdivision (a) requires "[t]he person in charge and all food employees [to] have adequate knowledge of, and . . . be properly trained in, food safety as it relates to their assigned duties." The Retail Food Code further requires that specified food facilities have either an owner or employee who has received state certification in food safety (see id., §§ 113947.1, subds. (a), (b)(1), 113947.2, 113947.3) or otherwise be able to demonstrate to an enforcement officer that the employees have adequate knowledge of food safety as it relates to their duties (id., § 113947.1, subd. (b)(2)). For facilities that have just opened, gone through a change in ownership, or otherwise lost their certified food safety specialist, the scheme offers a 60-day grace period. (Id., subd. (e).) Grocers contend the Ordinance, too, regulates employee qualifications.

Contrary to Grocers' argument, this portion of the Retail Food Code and the Ordinance do not overlap. 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 non-supervising, 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. Notably, the Retail Food Code's required certified food safety specialist is by definition a managerial or supervisorial employee,*fn5 while the Ordinance by its terms expressly excludes from its scope all such employees*fn6 and thus does not regulate or restrict in any way an employer's freedom to hire whomever it chooses to satisfy that position. As such, the Ordinance does not intrude upon the field the state has expressly reserved to itself and is not preempted by state law.

II. Federal Preemption

A. Machinists Preemption Principles

We consider as well whether the Ordinance is preempted by the NLRA, a federal law enacted to protect "the right of employees to organize and bargain collectively." (29 U.S.C. § 151.) The supremacy clause of the United States Constitution vests Congress with the power to preempt state law. (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 935; see U.S. Const., art. VI, cl. 2.) While Congress may exercise that power by enacting an express preemption provision, the NLRA contains no such provision; indeed, "Congress has not seen fit to lay down even the most general of guides to construction of the Act, as it sometimes does, by saying that its regulation either shall or shall not exclude state action." (Bethlehem Co. v. State Board (1947) 330 U.S. 767, 771.) Instead, Grocers contend the Ordinance is impliedly preempted under the Machinists doctrine. (Machinists v. Wisconsin Emp. Rel. Comm'n (1976) 427 U.S. 132 (Machinists).) Determining whether Machinists preemption extends here requires that we examine its principles in some depth.

In Machinists, supra, 427 U.S. 132, the United States Supreme Court considered whether labor or management self-help (economic pressure tactics such as boycotts, strikes, and lockouts used to extract concessions during the collective bargaining process), although neither protected nor prohibited by the NLRA, might nevertheless be " 'deemed privileged against state regulation.' " (Machinists, at p. 141.) A union, seeking to pressure an employer to make concessions in negotiations over renewal of an expired collective bargaining agreement, urged its members to refuse all overtime work. A state labor commission, concluding the conduct was neither arguably protected nor arguably prohibited by federal labor law, enjoined the concerted activity as being in violation of state law, and the state supreme court upheld the injunction.

The United States Supreme Court reversed. It explained that even where the NLRA does not address a particular economic weapon, preemption may still apply. "Whether self-help economic activities are employed by employer or union, the crucial inquiry regarding pre-emption is the same: whether 'the exercise of plenary state authority to curtail or entirely prohibit self-help would frustrate effective implementation of the Act's processes.' " (Machinists, supra, 427 U.S. at pp. 147-148.) Except insofar as the NLRA itself regulates the use of particular economic weapons, Congress intended a "no-fly" zone, with neither states nor the National Labor Relations Board (NLRB) permitted to interfere in the bargaining process by dictating which weapons labor and management might employ in negotiations. "To sanction state regulation of such economic pressure deemed by the federal Act 'desirabl[y] . . . left for the free play of contending economic forces, . . . is not merely [to fill] a gap [by] outlaw[ing] what federal law fails to outlaw; it is denying one party to an economic contest a weapon that Congress meant him to have available.' " (Machinists, at p. 150.)

In subsequent years, the United States Supreme Court has extended Machinists principles to other instances in which, from the text or structure of the NLRA, it could infer Congress intended the subject matter to be free from state or municipal regulation. Thus, in Golden State Transit Corp. v. Los Angeles (1986) 475 U.S. 608, 618, again addressing regulation of economic weapons in the bargaining process, the United States Supreme Court concluded the City of Los Angeles was preempted from conditioning renewal of a taxicab company's operating license on the company's settling a labor dispute. The taxi drivers were permitted under the NLRA to strike to pressure the taxi company, and the taxi company was permitted to resist that pressure and seek to outlast the drivers. The city, by requiring the taxi company to settle in order to keep operating, was effectively placing a time limit on the company when none was contemplated, thereby interfering with its use of permitted economic weapons, and was imposing an obligation to agree where the text and legislative history of the NLRA contemplated only an obligation to bargain. (Golden State Transit, at pp. 615-617.)

Most recently, in Chamber of Commerce of United States v. Brown (2008) 554 U.S. 60, the United States Supreme Court concluded California could not prohibit employers who received state funding from using those funds to influence support for or opposition to union organizing. (See Gov. Code, §§ 16645.2, 16645.7.) Reviewing the history of federal labor regulation, the court noted Congress had "expressly preclude[d] regulation of speech about unionization 'so long as the communications do not contain a "threat of reprisal or force or promise of benefit." ' " (Brown, at p. 68; see 29 U.S.C. § 158(c).) As well, Congress could have included in section 8(a) and (b) of the NLRA (see 29 U.S.C. § 158(a), (b)) further limits on pro- and anti-unionization advocacy; the limits it chose to include could thus be seen as this-much-and-no-more determinations by Congress. Accordingly, state law was preempted. (Brown, at p. 69.)

The foregoing cases each dealt with circumstances where, from the structure of the NLRA, it was evident Congress had spoken to a particular topic and no state interference could be countenanced. A second line of post-Machinists decisions, by contrast, has articulated significant limits on the scope of Machinists preemption arising from the fact the NLRA is a regulation of process, not substance.

The NLRA was enacted "to remedy '[t]he inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association.' " (Metropolitan Life Ins. Co. v. Massachusetts (1985) 471 U.S. 724, 753 (Metropolitan Life), quoting 29 U.S.C. § 151.) "One of the ultimate goals of the Act was the resolution of the problem of 'depress[ed] wage rates and the purchasing power of wage earners in industry,' 29 U. S. C. § 151, and 'the widening gap between wages and profits,' 79 Cong. Rec. 2371 (1935) (remarks of Sen. Wagner), thought to be the cause of economic decline and depression." (Metropolitan Life, at p. 754.) Congress addressed this problem not by directly dictating particular wage levels, but by establishing procedures for employee organization and collective bargaining that, it hoped, would result in fairer negotiations and higher wages. (Ibid.) The resulting law was "concerned primarily with establishing an equitable process for determining terms and conditions of employment, and not with particular substantive terms of the bargain that is struck when the parties are negotiating from relatively equal positions." (Id. at p. 753.)

The United States Supreme Court in Metropolitan Life analyzed whether the process-oriented NLRA was intended to have any effect on local employment laws of general application. A Massachusetts law required that employee health care plans include certain minimum benefits, a subject that otherwise might have been addressed in collective bargaining. Rejecting the argument that Machinists preemption applied, the Supreme Court drew a line between laws that regulate process and those that regulate substance: "No incompatibility exists . . . between federal rules designed to restore the equality of bargaining power, and state or federal legislation that imposes minimal substantive requirements on contract terms negotiated between parties to labor agreements, at least so long as the purpose of the state legislation is not incompatible with these general goals of the NLRA." (Metropolitan Life, supra, 471 U.S. at pp. 754-755.) While the NLRA facilitates collective bargaining over the terms of employment, it does not dictate--nor does it preclude states from dictating--any particular substantive terms of employment.

As the Supreme Court further explained, because the NLRA regulates only the process of organizing and bargaining, "[f]ederal labor law in this sense is interstitial, supplementing state law where compatible, and supplanting it only when it prevents the accomplishment of the purposes of the federal Act." (Metropolitan Life, supra, 471 U.S. at p. 756.) The NLRA operates against the background of the vast tapestry of substantive state regulation of employer-employee relations--the " 'backdrop of state law that provided the basis of congressional action.' " (Metropolitan Life, at p. 757.) Congress did not intend "to disturb the myriad state laws then in existence that set minimum labor standards, but were unrelated in any way to the processes of bargaining or self-organization." (Id. at p. 756.) Massachusetts thus could exercise its broad police powers to regulate the terms of employee health benefits without trespassing into any area cordoned off by the NLRA for exclusive federal regulation.

In Fort Halifax Packing Co. v. Coyne (1987) 482 U.S. 1 (Fort Halifax), the United States Supreme Court extended these principles to a state law guaranteeing employees a severance payment in the event of a plant closing. The high court reiterated that "the NLRA is concerned with ensuring an equitable bargaining process, not with the substantive terms that may emerge from such bargaining." (Id. at p. 20.) States may regulate what might otherwise be the subject of negotiation: " '[T]here is nothing in the NLRA . . . which expressly forecloses all state regulatory power with respect to those issues . . . that may be the subject of collective bargaining.' " (Id. at pp. 21-22.) Given that " 'Congress developed the framework for self-organization and collective bargaining of the NLRA within the larger body of state law promoting public health and safety' " (id. at p. 22), Maine could by statute provide employees some minimal economic security, in the event of a plant closing, without running afoul of the NLRA.

Our own decision in Industrial Welfare Com. v. Superior Court (1980) 27 Cal.3d 690 presaged the high court's later recognitions of the power of localities to promote public health and safety through regulation of the employer-employee relationship without falling prey to Machinists preemption. We considered there whether federal preemption precluded the state Industrial Welfare Commission from issuing wage orders regulating the minimum wages, maximum hours, and conditions of employment for employees in a range of industries. We rejected the argument out of hand, relying on what we viewed as settled precedent that "the federal labor laws do not 'preempt [] . . . the field of regulating working conditions . . . .' " (Industrial Welfare Com., at p. 728, fn. 16, quoting Terminal Assn. v. Trainmen (1943) 318 U.S. 1, 7.) Instead, we recognized preemption was confined to circumstances in which local regulation interfered with the process of organizing and bargaining, including the use of economic weapons to achieve particular bargaining goals. (Industrial Welfare Com., at p. 728, fn. 16.)

As these cases demonstrate, at the core of Machinists preemption is the principle that, in specific instances, one may discern from the text and structure of the NLRA a basis for inferring that Congress affirmatively intended to leave a particular subject free from further NLRB and state and local government regulation. "Machinists pre-emption is based on the premise that ' "Congress struck a balance of protection, prohibition, and laissez-faire in respect to union organization, collective bargaining, and labor disputes." ' " (Chamber of Commerce of United States v. Brown, supra, 554 U.S. at p. 65, quoting Machinists, supra, 427 U.S. at p. 140, fn. 4.) "[A]s in any pre-emption analysis, ' "[t]he purpose of Congress is the ultimate touchstone." ' " (Metropolitan Life, supra, 471 U.S. at p. 747.)

Given that Congress's purpose was to regulate the process of establishing terms of employment, not the content of those terms (Metropolitan Life, supra, 471 U.S. at p. 753; Fort Halifax, supra, 482 U.S. at p. 20), it follows that the areas Congress intended to leave free of local regulation are those relating to the process by which an employment agreement is reached: matters of self-organization and collective bargaining. (See Metropolitan Life, at p. 751.) In sharp distinction, because the NLRA is not a federal code of employment law, Machinists preemption does not extend to local establishment of substantive employment terms: "Such regulation provides protections to individual union and nonunion workers alike, and thus 'neither encourage[s] nor discourage[s] the collective-bargaining processes that are the subject of the NLRA.' " (Fort Halifax, at pp. 20-21; see also Southern California Edison Co. v. Public Utilities Com. (2006) 140 Cal.App.4th 1085, 1100 [Local employment regulation is permitted "as long as the purpose of the law or regulation is not incompatible with the general goals of the NLRA to restore the equality of bargaining power and resolve the problem of depressed wages."].)

With these principles in mind, we consider whether the text or structure of the NLRA evidences any intent to preclude worker retention ordinances such as the one at issue here.

B. Application to the Ordinance

We begin with an initial presumption against preemption. (E.g., Building & Constr. Trades Council v. Associated Builders & Contractors of Mass./R. I., Inc. (1993) 507 U.S. 218, 224.) This presumption is particularly heavy here because the subject matter, the employer-employee relationship, is one traditionally regulated by state and local governments under their police powers. (Fort Halifax, supra, 482 U.S. at p. 21 ["[P]re-emption should not be lightly inferred in this area, since the establishment of labor standards falls within the traditional police power of the State."].) Thus, we consider whether there is evidence of a " ' "clear and manifest" ' " congressional intent (Bronco Wine Co. v. Jolly (2004) 33 Cal.4th 943, 957) to bar at any level the regulation of employee retention during ownership transitions (see Metropolitan Life, supra, 471 U.S. at p. 749).

Examining the text and structure of the NLRA, we discern no evidence that Congress affirmatively intended to leave the subject of employee retention unregulated by states and municipalities. On the subject of employee hiring and firing, the text of the NLRA is, with one notable exception, resoundingly silent. It neither guarantees nor prohibits the retention of employees; it does not affirmatively protect new employers' latitude to hire and fire whomever they please, nor does it address in any way the power of states and localities to regulate the subject. The only portion of the NLRA to speak to these matters, section 8(a)(3), protects employees from discrimination on the basis of union affiliation; an employer may not use the power to hire and fire to exercise anti-union animus and eliminate pro-union employees from its workforce. (See 29 U.S.C. § 158(a)(3).)

This silence leaves unrebutted the initial presumption that Congress did not intend preemption. The NLRA's statutory text does not disturb state and local authority to address, as these entities see fit, matters of hiring and firing, authority traditionally recognized as a core incident of their police power. (See De Canas v. Bica (1976) 424 U.S. 351, 356 ["States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State."].) Thus it is that states and localities have long been permitted to provide common law wrongful discharge remedies (e.g., Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167) and enact statutes of general application regulating hiring and firing (e.g., Gov. Code, § 12900 et seq. [Cal. Fair Employment & Housing Act]) without intruding upon the NLRA's narrowly tailored concerns.

The congressional silence concerning the subject matter of the Ordinance distinguishes this case from those where the United States Supreme Court has found Machinists preemption. (See Machinists, supra, 427 U.S. 132.) Without exception, preemption in each was traceable in part to specific statutory language evincing a congressional intent to regulate only at the federal level. (See Chamber of Commerce of United States v. Brown, supra, 554 U.S. at pp. 67-69 [preempting a statute that effectively limited employer speech about union organizing, where Congress in §§ 7, 8(a), 8(b), and 8(c) of the NLRA (29 U.S.C. §§ 157, 158(a), (b), (c)) already had regulated the extent to which employer speech should be permitted]; Golden State Transit Corp. v. Los Angeles, supra, 475 U.S. at pp. 614-618 [preempting municipal action that compelled a settlement, where Congress in § 8(d) of the NLRA (29 U.S.C. § 158(d)) had imposed only a duty to bargain, not to agree]; Machinists, at pp. 143-151 [preempting a state bar on slowdowns, where Congress in § 8 of the NLRA (29 U.S.C. § 158) had already identified those economic weapons it found necessary to bar]; Teamsters Union v. Morton (1964) 377 ...


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