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MORRISON FOERSTER Hon. Vicente Sarmiento March 1, 2021 Page Two The Ordinances also inexplicably choose winners and losers among frontline workers in mandating Premium Pay. The Ordinances define "grocery store" as "a store that devotes seventy percent (70%) or more of its business to retailing a general range of food products... and/or a store that has at least fifteen thousand square feet (15,000 si) of floor space dedicated to retailing a general range of food products." (§ 2.) Other retail and health care workers are ignored, despite the fact that those same workers have been reporting to work since March. The Ordinances grant Premium Pay for select employees of the large grocers while ignoring frontline employees of larger, generic retailers that also sell a substantial amount of groceries, and other frontline workers in Santa Ana that face identical, if not greater, risks. The Ordinances are unlawfuL By mandating Premium Pay, the Ordinances would improperly insert the City of Santa Ana into the middle of the collective bargaining process protected by the National Labor Relations Act. The Ordinances suggest that there is a need to "protect and promote the public health, safety, and welfare." (§ 2). Santa Ana employers and workers in many industries have been faced with these issues since March 2020. They are in no way immediate. Grocers have continued to operate, providing food and household items to protect public health and safety. In light of the widespread decrease in economic activity, there is also no reason to believe that grocery workers are at any particular risk of leaving their jobs, but even if there were such a risk, grocers would have every incentive to increase the workers' compensation or otherwise bargain with them to improve retention. The Ordinances would interfere with this process that Congress intended to be left to be controlled by the free -play of economic forces. Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132 (1976). Such ordinances have been found to be preempted by the NLRA. For example, in Chamber of Commerce of U.S. v. Bragdon, the Ninth Circuit Court of Appeals held as preempted an ordinance mandating employers to pay a predetermined wage scale to employees on certain private industrial construction projects. 64 F.3d 497 (9th Cit. 1995). The ordinance's purported goals included "promot[ing] safety and higher quality of construction in large industrial projects" and "maintain[ing] and improv[ing] the standard of living of construction workers, and thereby improv[ing] the economy as a whole." Id. at 503. The Ninth Circuit recognized that this ordinance "differ[ed] from the [a locality's] usual exercise of police power, which normally seeks to assure that a minimum wage is paid to all employees within the county to avoid unduly imposing on public services such as welfare or health services." Id. at 503. Instead, the ordinance was an "economic weapon" meant to influence the terms of the employers' and their workers' contract. Id. at 501-04. The Ninth Circuit explained that the ordinance would "redirect efforts of employees not to bargain with employers, but instead, to seek to set specialized minimum wage and benefit packages with political bodies," thereby substituting a "free -play of economic forces that was intended by the NLRA" with a "free -play of political forces." Id. at 504. sf-4438126