By Hailey Konnath

Law360 (March 25, 2021, 10:02 PM EDT ) The city of Long Beach, California, on Wednesday urged a California federal court to toss the California Grocers Association's latest complaint in its challenge to the city's pandemic pay bump ordinance, pointing to the city of Seattle's recent victory over a similar suit in Washington federal court.

The grocery workers' union lodged its amended complaint earlier this month, claiming that the city's "hero pay" law unreasonably singles out specific employee classes in specific grocers while ignoring employers and essential frontline workers outside the grocery industry.

The filing came shortly after U.S. District Judge Otis D. Wright II declined to preliminarily block the city's law, ruling that the CGA wasn't likely to succeed on its claims. The CGA has since appealed that decision to the Ninth Circuit.

In Wednesday's motion to dismiss, Long Beach slammed the union for trying to stop a law that provides "a modicum of economic relief to front-line grocery workers" as the nation grapples with an "economic disaster."

And on top of the bad optics, the city said the CGA's allegations are contrary to several "settled principles of law," which the Western District of Washington recognized last week when it threw out a similar suit brought by the Northwest Grocery Association and the Washington Food Industry Association.

In that case, U.S. District Judge John C. Coughenour held that the groups had failed to state a claim that the ordinance was unconstitutional or preempted by federal labor law, saying that none of the unions' arguments "establish valid claims for relief."

In particular, Long Beach argued that the National Labor Relations Act does not, as the union had alleged, preempt state or local wage or other labor regulations. The NLRA only blocks laws that interfere with "economic weapons of self-help, such as strikes and lockouts," the city said.

"This does not apply here," it said.

Additionally, the ordinance doesn't violate equal protection clauses of either the U.S. or California constitutions, Long Beach said. That's because the ordinance is subject to and survives the deferential rational basis standard, it said. And courts have uniformly rejected the notion that such an ordinance should be subject to strict scrutiny, the city said.

Also on Wednesday, intervenor and fellow grocery workers' union United Food and Commercial Workers International Union Local 324 threw its support behind the city, filing its own motion to dismiss the CGA's suit. UFCWI requested and was permitted to join the case last month.

UFCWI noted in its motion that although most grocery companies have seen significant increases in revenues and profits during the pandemic, yet many have phased out the temporary additional compensation it paid its frontline workers last year.

"These workers face significant risks on the job, and for a time during the pandemic's early phases, many grocery companies provided them with 'hero' or 'hazard' pay to acknowledge these risks," the union said.

Long Beach's ordinance was in response to that lack of hazard pay, and a number of cities have since followed suit, UFCWI said.

The union repeated many of the city's arguments, saying that the CGA is asking for the measure to be struck down for reasons that the U.S. Supreme Court and the Ninth Circuit "have rejected for decades." The court should therefore dismiss the amended complaint for failure to state a claim, it said.

The CGA first sued the city in January, claiming the mandate was unconstitutional. Later that month, U.S. District Judge Dolly M. Gee denied the union's request for a temporary restraining order to stop enforcement of the ordinance, but only to the extent it sought relief on an ex parte basis. Specifically, Judge Gee found that the group had failed to show that its members would face imminent irreparable harm without the injunction.

The case was transferred to Judge Wright in early February.

The preliminary injunction motion was fully denied late last month, with Judge Wright holding that the group hadn't sufficiently argued its claims that the "hero pay" law violated the U.S. and California constitutions.

On Monday, the CGA asked the Ninth Circuit to overturn that decision, arguing that Judge Wright erred in finding that the ordinance wasn't preempted by the National Labor Relations Act.

"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," the CGA said in its petition. "This novel measure cannot be reconciled with the governing requirements of California and federal law."

Counsel for Long Beach declined to comment on Thursday.

Counsel and representatives for the CGA and UFCWI didn't immediately return requests for comment Thursday.

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

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

Long Beach is represented by Jeffrey V. Dunn, Christopher M. Pisano and Daniel L. Richards of Best Best & Krieger LLP.

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

--Additional reporting by Max Kutner. Editing by Jay Jackson Jr.

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