Case 22-491, Document 104, 10/12/2022, 3398652, Page1 of 38
`
`22-491
`
`3in the Einiteb 6tate5 Court of appeal5
`In the United States Court of Appeals
`F O R T H E S E C O N D C I R C U I T
`FOR THE SECOND CIRCUIT
`
`RESTAURANT LAW CENTER,
`RESTAURANT LAW CENTER,
`NEW YORK STATE RESTAURANT ASSOCIATION,
`NEW YORK STATE RESTAURANT ASSOCIATION,
`Plaintiffs - Appellants,
`Plaintiffs. - Appellants,
`
`v.
`v.
`CITY OF NEW YORK, LORELEI SALAS,
`CITY OF NEW YORK, LORELEI SALAS,
`IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK CITY
`IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK CITY
`DEPARTMENT OF CONSUMER AND WORKER PROTECTION,
`DEPARTMENT OF CONSUMER AND WORKER PROTECTION,
`Defendants - Appellees.
`Defendants - Appellees.
`
`On Appeal from the United States District Court for the
`On Appeal from the United States District Court for the
`Southern District of New York, No. 21-cv-4801, Hon. Denise L. Cote
`Southern District of New York, No. 21-cv-4801, Hon. Denise L. Cote
`
`REPLY BRIEF OF APPELLANTS
`REPLY BRIEF OF APPELLANTS
`
`Leni D. Battaglia
`Leni D. Battaglia
`MORGAN, LEWIS & BOCKIUS LLP
`MORGAN, LEWIS & BOCKIUS LLP
`101 Park Avenue
`101 Park Avenue
`New York, NY 10178
`New York, NY 10178
`(212) 309-7177
`(212) 309-7177
`
`Angelo I. Amador
`Angelo I. Amador
`RESTAURANT LAW CENTER
`RESTAURANT LAW CENTER
`2055 L Street, Suite 700
`2055 L Street, Suite 700
`Washington, DC 20036
`Washington, DC 20036
`(202) 492-5037
`(202) 492-5037
`
`William R. Peterson
`William R. Peterson
`MORGAN, LEWIS & BOCKIUS LLP
`MORGAN, LEWIS & BOCKIUS LLP
`1000 Louisiana Street, Suite 4000
`1000 Louisiana Street, Suite 4000
`Houston, TX 77002
`Houston, TX 77002
`(713) 890-5188
`(713) 890-5188
`
`James D. Nelson
`James D. Nelson
`MORGAN, LEWIS & BOCKIUS LLP
`MORGAN, LEWIS & BOCKIUS LLP
`1111 Pennsylvania Avenue, NW
`1111 Pennsylvania Avenue, NW
`Washington, DC 20004
`Washington, DC 20004
`(202) 739-5411
`(202) 739-5411
`
`Counsel for Restaurant Law Center and New York State Restaurant Association
`Counsel for Restaurant Law Center and New York State Restaurant Association
`
`

`

`Case 22-491, Document 104, 10/12/2022, 3398652, Page2 of 38
`
`TABLE OF CONTENTS
`
`Page
`
`Table of Authorities .................................................................................................iv
`Argument in Reply .................................................................................................... 1
`I.
`The NLRA Preempts the Just Cause Laws..................................................... 2
`A. Machinists preemption applies to substantive rules that intrude
`on the bargaining process and mandate the result of bargaining,
`and thus are not “minimum labor standards.” ...................................... 2
`The Just Cause Laws are not minimum labor standards because
`they intrude on key bargaining matters in a manner inconsistent
`with the NLRA’s purposes. .................................................................. 5
`1.
`The City ignores that the Just Cause Laws represent
`detailed and comprehensive intrusions into many aspects
`of the labor-management relationship. ...................................... 5
`The City ignores that the Just Cause Laws usurp the
`ability to negotiate on the most central component of
`CBAs. ......................................................................................... 8
`The City ignores the relevance of the fact that these
`intrusive laws are targeted at a single, narrow industry. ............ 9
`The City ignores clear legislative history showing the
`Laws’ purpose was to provide this industry what a union
`provides. ................................................................................... 10
`The City’s attempt to distinguish on-point cases falls
`short. 12
`The Laws’ unprecedented scope shows they are not
`“traditional” or “unexceptional” exercises of state power. ...... 14
`The Just Cause Laws alter the balance of power between labor
`and management in the fast-food industry. ........................................ 16
`The Just Cause Laws remove economic tools from employers’
`toolbox in a manner that violates Machinists. .................................... 18
`
`B.
`
`C.
`
`D.
`
`2.
`
`3.
`
`4.
`
`5.
`
`6.
`
`ii
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`

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`Case 22-491, Document 104, 10/12/2022, 3398652, Page3 of 38
`
`TABLE OF CONTENTS
`(continued)
`
`Page
`
`II.
`
`B.
`
`C.
`
`The Just Cause Laws Violate the Dormant Commerce Clause. ................... 19
`A.
`The City concedes that the “practical effect” of the Just Cause
`Laws is to discriminate against interstate commerce. ........................ 20
`The City cannot show that other available non-discriminatory
`means could not serve its legitimate local purpose. ........................... 21
`1.
`The City fails to cite any evidence supporting its
`argument. .................................................................................. 22
`Imposing regulatory costs on more-profitable interstate
`businesses violates the dormant Commerce Clause. ............... 24
`The City’s argument about franchisees conflicts with the
`Just Cause Laws. ...................................................................... 26
`No case supports the City’s position. ................................................. 27
`1.
`The City cannot defend the district court’s reliance on
`VIZIO........................................................................................ 27
`The City’s reliance on In re National Restaurant
`Association v. Commissioner of Labor is misleading. ............. 28
`The City cannot distinguish Cachia v. Islamorada. ................ 28
`3.
`Conclusion .............................................................................................................. 31
`Certificate of Compliance ....................................................................................... 32
`
`2.
`
`3.
`
`2.
`
`iii
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`

`

`Case 22-491, Document 104, 10/12/2022, 3398652, Page4 of 38
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`520 S. Michigan Ave. Assocs., Ltd. v. Shannon,
`549 F.3d 1119 (7th Cir. 2008) .....................................................................passim
`Associated Builders & Contractors of S. Cal. v. Nunn,
`356 F.3d 979 (9th Cir. 2004) .............................................................................. 13
`Baldwin v. G.A.F. Seelig, Inc.,
`294 U.S. 511 (1935) ............................................................................................ 25
`Bassette v. Stone Container Corp.,
`No. 89-33, 1992 WL 613289 (D. Mont. Oct. 9, 1992), aff’d, 25
`F.3d 757 (9th Cir. 1994) ....................................................................................... 8
`Cachia v. Islamorada,
`542 F.3d 839 (11th Cir. 2008) ...................................................................... 28, 29
`Chamber of Com. of U.S. v. Bragdon,
`64 F.3d 497 (9th Cir. 1995) .........................................................................passim
`Cloverland-Green Spring Dairies, Inc. v. Pa. Milk Mktg. Bd.,
`298 F.3d 201 (3d Cir. 2002) ......................................................................... 20, 25
`Concerned Home Care Providers, Inc. v. Cuomo,
`783 F.3d 77 (2d Cir. 2015) ..........................................................................passim
`CTS Corp. v. Dynamics Corp. of Am.,
`481 U.S. 69 (1987) .............................................................................................. 21
`Exxon Corp. v. Governor of Md.,
`437 U.S. 117 (1978) ...................................................................................... 29, 30
`Golden State Transit Corp. v. City of Los Angeles,
`475 U.S. 608 (1986) ........................................................................................ 3, 18
`Hughes v. Oklahoma,
`441 U.S. 322 (1979) ............................................................................................ 24
`
`iv
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`

`

`Case 22-491, Document 104, 10/12/2022, 3398652, Page5 of 38
`
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`Hull v. Dutton,
`935 F.2d 1194 (11th Cir. 1991) .......................................................................... 14
`Int’l Franchise Ass’n, Inc. v. City of Seattle,
`803 F.3d 389 (9th Cir. 2015) .............................................................................. 30
`Maine v. Taylor,
`477 U.S. 131 (1986) ............................................................................................ 21
`Metro. Life Ins. Co. v. Massachusetts,
`471 U.S. 724 (1985) .............................................................................. 3, 4, 14, 17
`N.Y. Pet Welfare Ass’n v. City of New York,
`850 F.3d 79 (2d Cir. 2017) ................................................................................. 21
`In re Nat’l Rest. Ass’n v. Comm’r of Lab.,
`141 A.D.3d 185 (N.Y. App. Div. 3d Dep’t 2016) .............................................. 28
`Or. Waste Sys., Inc. v. Dep’t of Env’t Quality,
`511 U.S. 93 (1994) .............................................................................................. 21
`Peabody Galion v. Dollar,
`666 F.2d 1309 (10th Cir. 1981) .......................................................................... 16
`R.I. Hosp. Ass’n v. City of Providence,
`667 F.3d 17 (1st Cir. 2011) ............................................................................. 3, 15
`Rondout Elec., Inc. v. NYS Dep’t of Lab.,
`335 F.3d 162 (2d Cir. 2003) ............................................................................... 12
`
`St. Thomas-St. John Hotel & Tourism Ass’n, Inc. v. Gov’t of U.S.
`Virgin Islands,
`218 F.3d 232 (3d Cir. 2000) ......................................................................... 14, 15
`VIZIO, Inc. v. Klee,
`886 F.3d 249 (2d Cir. 2018) ............................................................................... 27
`
`v
`
`

`

`Case 22-491, Document 104, 10/12/2022, 3398652, Page6 of 38
`
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`Statutes
`V.I. Code Ann. Title 24, §§ 76-78 ........................................................................... 15
`Mont. Code Ann. § 39-2-904(1)(b).......................................................................... 15
`N.C. Gen. Stat. § 143-422.2 ..................................................................................... 16
`NLRA ................................................................................................................passim
`NYCC § 20-1271 ..................................................................................................... 31
`NYCC § 20-1272(e) ................................................................................................... 7
`Phila. Code § 9-4702 ................................................................................................ 15
`Other Authorities
`Department of Consumer and Worker Protection Files Lawsuit
`Against Starbucks Seeking Reinstatement of Wrongfully
`Terminated Employee, NYC CONSUMER AND WORKER
`PROTECTION (Sept. 2, 2022), https://tinyurl.com/2ermsp33 ............................... 17
`Worker Protection Bills for Fast Food Employees, OFFICIAL WEBSITE
`OF THE CITY OF NEW YORK (Jan. 5, 2021),
`https://tinyurl.com/ykkxf5nm ....................................................................... 11, 14
`
`vi
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`

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`Case 22-491, Document 104, 10/12/2022, 3398652, Page7 of 38
`
`ARGUMENT IN REPLY
`
`The Just Cause Laws dictate to a specific industry the core features of a
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`collective-bargaining agreement (“CBA”)—just-cause discharge, hours reduction,
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`progressive discipline, and layoff limitations—as well as additional intrusive
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`requirements of the discharge and dispute-resolution processes. They are
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`inconsistent with the NLRA’s purpose of creating space for free-market negotiations
`
`and thus are not “minimum labor standards.” They also discriminate against
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`interstate commerce, applying to no intrastate enterprises. The City’s and its amici’s
`
`responses only confirm that the Just Cause Laws are preempted by the NLRA and
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`violate the dormant Commerce Clause.
`
`First, the City fails to acknowledge the breadth of the Just Cause Laws’
`
`requirements, undoubtedly because they are exceptional—the opposite of how the
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`Supreme Court describes minimum labor standards. Additionally, the City fails to
`
`provide a convincing argument that the Laws are “minimal” background laws,
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`presumably because they do, in fact, impose the keystone of CBAs on a particular
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`industry (at the behest of the Service Employees International Union (“SEIU”)).
`
`Moreover, the City agrees the district court’s decision to ignore legislative history is
`
`wrong but then commits the same error by ignoring that the Just Cause Laws’
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`purpose (and effect) was to give fast-food workers what a union would provide.
`
`1
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`

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`Case 22-491, Document 104, 10/12/2022, 3398652, Page8 of 38
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`Second, the City concedes the Laws impose burdensome costs on interstate
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`commerce and that they do not apply to in-state restaurant chains. No evidence
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`supports the City’s speculation that thirty-location chains are better able to handle
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`regulatory burdens than smaller ones. The City essentially ignores franchisees of
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`interstate chains, which it does not dispute are in the same position as franchisees of
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`in-state chains. The Laws’ practical effect is to place regulatory burdens on
`
`interstate commerce from which they exempt in-state businesses. No evidence
`
`justifies the criteria that lead to this discriminatory result.
`
`I.
`
`The NLRA Preempts the Just Cause Laws.
`
`A. Machinists preemption applies to substantive rules that intrude on
`the bargaining process and mandate the result of bargaining, and
`thus are not “minimum labor standards.”
`
`The City’s first attempt to avoid Machinists preemption is to imply, as the
`
`district court did, that substantive requirements governing labor-management
`
`relationships are never preempted. City Br. 15-16, 20 (arguing that the Laws “are
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`plainly substantive, and do not interfere with the collective-bargaining process”).
`
`But the idea that “Machinists preemption is unconcerned with local regulations of
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`specific terms of employment” and concerned only with “the mechanics of the
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`bargaining process,” City Br. 16, is wrong. Substantive requirements and process
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`limitations alike may “frustrate” the NLRA’s free-market goals—the “crucial
`
`2
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`

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`Case 22-491, Document 104, 10/12/2022, 3398652, Page9 of 38
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`inquiry” for preemption. Golden State Transit Corp. v. City of Los Angeles, 475
`
`U.S. 608, 615-16 (1986); see Opening Br. 25-26.
`
`The concept of “minimum labor standards” as articulated by the Supreme
`
`Court assumes some substantive requirements are preempted because they: (i) are
`
`not “minimal employment standard[s],” (ii) are “inconsistent with the general
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`legislative goals of the NLRA,” (iii) “encourage []or discourage the collective-
`
`bargaining processes that are the subject of the NLRA,” or (iv) have a material
`
`“effect on the right of self-organization established in the Act.” Metro. Life Ins. Co.
`
`v. Massachusetts, 471 U.S. 724, 755, 757 (1985). If any of these is true about
`
`substantive labor requirements—as they all are for the Just Cause Laws—they are
`
`not minimum labor standards and thus are preempted. Id.
`
`In line with these cases, this Court recognizes that “dictat[ing] the details of
`
`particular contract negotiations” may violate Machinists. Concerned Home Care
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`Providers, Inc. v. Cuomo, 783 F.3d 77, 86 (2d Cir. 2015). Other courts are in accord.
`
`See, e.g., 520 S. Michigan Ave. Assocs., Ltd. v. Shannon, 549 F.3d 1119, 1136 (7th
`
`Cir. 2008) (“[S]ubstantive requirement[s]” do not “automatically avoid[]
`
`preemption.”); Chamber of Com. of U.S. v. Bragdon, 64 F.3d 497, 501 (9th Cir.
`
`1995) (“The objective of allowing the bargaining process ‘to be controlled by the
`
`free-play of economic forces’ can be frustrated by the imposition of substantive
`
`requirements[.]”); R.I. Hosp. Ass’n v. City of Providence, 667 F.3d 17, 32 (1st Cir.
`
`3
`
`

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`Case 22-491, Document 104, 10/12/2022, 3398652, Page10 of 38
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`2011) (referring to “outer boundary beyond which a state law can no longer be
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`deemed a ‘minimum labor standard’”).
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`The City apparently interprets “minimum” such that a “minimum labor
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`standard” is any substantive requirement that serves as a “floor” that could be
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`exceeded—rendering the word virtually meaningless. City Br. 11; id. at 27 (arguing
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`that “Shannon does not hold that statutory terms that are detailed, comprehensive, or
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`generous—i.e., more than minimal—are preempted”). In truth, “minimum” is used
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`in the sense of “slight” or, in the Supreme Court’s language, “minimal.” Metro. Life,
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`471 U.S. at 757. Shannon explicitly rejected the City’s argument, holding that
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`“minimum” implies a “low threshold,” as the Supreme Court used the phrase
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`“minimal substantive requirements.” 549 F.3d at 1135-36.
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`As Shannon explained, “[t]he more stringent a state labor substantive standard,
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`the more likely it is that the state law interferes with the bargaining process.” Id. at
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`1136. “[A]s a standard becomes more stringent, the state, at a certain point, effectively
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`substitutes itself as the bargaining representative.” Id. (citing Bragdon, 64 F.3d at
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`501).1
`
`1 The City later concedes that imposing an entire CBA is not permitted, City Br.
`27-28, but that is impossible if substantive requirements never are preempted.
`
`4
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`

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`Case 22-491, Document 104, 10/12/2022, 3398652, Page11 of 38
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`A holding that substantive requirements never are preempted would transgress
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`Supreme Court and Second Circuit case law and would create a circuit split. Labor
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`requirements are preempted by Machinists if they are not minimal labor standards.
`
`B.
`
`The Just Cause Laws are not minimum labor standards because
`they intrude on key bargaining matters in a manner inconsistent
`with the NLRA’s purposes.
`
`In purpose and effect, the Just Cause Laws impose unprecedented, detailed, and
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`intrusive requirements that mirror “keystone” union benefits for a specific bargaining
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`group. Opening Br. 30-48. They mandate the result of bargaining in a manner much
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`more intrusive than laws this Court has already observed would violate Machinists.
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`Id. at 24, 30-31.
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`In response, the City (like the district court) minimizes the impact of the Just
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`Cause Laws, simply ignoring much of what the Laws dictate. The City also takes
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`each offending feature of the Just Cause Laws in isolation and argues that that feature,
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`alone, is not enough for preemption. But no law with all these features has ever been
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`held permissible under Machinists.
`
`1.
`
`The City ignores that the Just Cause Laws represent
`detailed and comprehensive intrusions into many aspects of
`the labor-management relationship.
`
`If the Court were to read only the City’s brief, it would not know much of what
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`the challenged laws do. The City insists this is a “Wrongful Discharge Law,” and
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`describes it as simply a “protection from arbitrary termination or reduction of hours.”
`
`5
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`

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`Case 22-491, Document 104, 10/12/2022, 3398652, Page12 of 38
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`City Br. 11, 26. The City also concedes (in its statement of the case, but not its
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`argument) that the Just Cause Laws impose progressive discipline rules, require
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`training, allow DCWP enforcement actions and employee actions or arbitrations,
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`forbid layoffs without a (narrowly defined) “bona fide economic reason,” and require
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`reverse-seniority layoffs. City Br. 4-5. These aspects of the law are serious, detailed
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`intrusions like nothing upheld by any case the City discusses. See City Br. 18-21.
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`But in truth, the Just Cause Laws are much more intrusive than the City admits,
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`in ways deeply intertwined with the provisions on discharges and hours reductions.
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`In addition to the above, Plaintiffs made clear (at 24, 30-31) the Laws also:
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` restrict disciplinary look-back periods to one year;
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` require written notice of the precise reasons for discharges;
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` limit employers’ ability to rely on evidence not in the notice;
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` forbid immediate termination for nearly all non-violent misconduct;
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` limit the permissible length for probationary periods;
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` require new methods of dispute resolution, including class arbitration,
`which the employer cannot decline;
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` presume employers are guilty by shifting the burden of proof in post-
`discharge disputes to the employer;
`
` regulate what can break seniority for purposes of layoffs; and
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` require recalling previous employees before hiring anyone after a layoff.
`
`6
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`

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`Case 22-491, Document 104, 10/12/2022, 3398652, Page13 of 38
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`The City ignores these critical components of the scheme laid out in the Laws and
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`thus fails to defend them as consistent with minimum labor standards.
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`This decision is telling—especially given that the Laws’ requirements mirror
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`(and indeed surpass) the features of the laws struck down by the Seventh Circuit in
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`Shannon and the Ninth Circuit in Bragdon. See Concerned Home Care Providers,
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`783 F.3d at 86 n.8.
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`One such feature of the Just Cause Laws never mentioned by the City—
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`changing “the burden of proof” in employee-discharge lawsuits, to presume the
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`employer’s guilt, see NYCC § 20-1272(e)—was the main offending feature in
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`Shannon, 549 F.3d at 1135.2 This requirement goes “beyond prescribing minimum
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`labor standards and arguably interfere[s] with the collective-bargaining process.”
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`Concerned Home Care Providers, 783 F.3d at 86 n.8.
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`This Court has previously held that the law at issue in Bragdon, which
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`prescribed “the division of the total package that is paid in hourly wages directly to
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`the worker and the amount paid by the employer in health, pension, and welfare
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`benefits,” was a “‘much more invasive and detailed’ interference with the collective-
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`2 Only NELP (at 17-18) makes any attempt to justify the shifting burden of proof,
`but it only notes some states’ retaliation laws create a rebuttable presumption if an
`employer takes an adverse action within 90 days of an employee engaging in a
`protected activity. That presumption is limited to situations where there is evidence
`of retaliatory discharge and does not shift the burden of persuasion—only the
`burden of production. Here, employers bear the burden of proof for all discharges.
`
`7
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`

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`Case 22-491, Document 104, 10/12/2022, 3398652, Page14 of 38
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`bargaining process than [a] minimum total compensation requirement.” Id. The Just
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`Cause Laws are even more invasive and detailed. Indeed, they create “terms of
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`employment that would be very difficult for any union to bargain for,” and are “more
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`than a mere backdrop to negotiations.” Shannon, 549 F.3d at 1134.3 The
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`requirements “can in no sense be considered ‘minimal’” and are thus “incompatible
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`with the goals of the NLRA.” Id. at 1135-36; see also Concerned Home Care
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`Providers, 783 F.3d at 86 n.8.
`
`2.
`
`The City ignores that the Just Cause Laws usurp the ability
`to negotiate on the most central component of CBAs.
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`Issues of “hiring and firing are often central to CBA negotiations,” and the
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`NLRA “intended to allow the parties to resolve [such] matters without the unsettling
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`effect of state regulation.” Bassette v. Stone Container Corp., No. 89-33, 1992 WL
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`613289, at *3 (D. Mont. Oct. 9, 1992), aff’d, 25 F.3d 757 (9th Cir. 1994).
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`Unsurprisingly, “just cause” requirements are widely regarded as the “keystone” of
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`CBAs. Opening Br. 32-34; JA49 ¶ 20. The City’s goal was to give fast-food workers
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`the heart of what a union would provide, Opening Br. 33-34; JA50 ¶ 24—and it
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`succeeded.
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`3 The City never responds to Plaintiffs’ argument (at 33-34) that the Laws’
`requirements would be “very difficult” for any union to negotiate. That itself is
`evidence of preemption.
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`8
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`

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`Case 22-491, Document 104, 10/12/2022, 3398652, Page15 of 38
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`By removing this “keystone” of CBAs from the bargaining process, the City
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`“effectively substitute[d] itself as the bargaining representative” for this particular
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`industry—exactly what Machinists forbids. Shannon, 549 F.3d at 1136; Bragdon,
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`64 F.3d at 501-03; see Concerned Home Care Providers, 783 F.3d at 86 (forbidding
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`dictating “the details of particular contract negotiations” and upholding wage parity
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`law because it was not “so finely targeted that [it] impermissibly intrude[d] upon”
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`collective bargaining). If the Laws at issue here are not “so detailed, so sweeping,
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`and so targeted” as to frustrate the NLRA’s purposes of free-market collective
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`bargaining (City Br. 23-24), then it is difficult to imagine what law would qualify.
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`The City’s only response is that the Just Cause Laws don’t cover every single
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`bargaining topic, City Br. 27-28, but neither did the preempted laws in Shannon and
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`Bragdon. They intruded into specific areas that should have been left to bargaining.
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`No case supports the idea that a city must impose an entire CBA governing every
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`conceivable bargaining topic—rather than “just” the central components of a typical
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`CBA—on an industry to violate Machinists.
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`3.
`
`The City ignores the relevance of the fact that these
`intrusive laws are targeted at a single, narrow industry.
`
`As Plaintiffs explained (at 34-37), where a law with the above features also
`
`targets a particular bargaining unit, that is further evidence the law is preempted.
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`Indeed, even the City concedes that a law being “narrowly tailored to [a specific]
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`location and industry [may be] meaningful.” City Br. 31.
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`9
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`

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`Case 22-491, Document 104, 10/12/2022, 3398652, Page16 of 38
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`Perhaps owing to this acknowledgement, the City and its amici do not respond
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`to Plaintiffs’ argument. They respond to a strawman, arguing that narrowly tailoring
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`to a particular industry is not sufficient by itself to hold a law preempted. See City
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`Br. 29-30; NELP Br. 14-15.
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`As Plaintiffs demonstrated, the Laws are targeted at a particular industry and
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`come in the wake of the SEIU’s efforts at unionizing that industry. These facts join
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`with all the other facts to show that the City replaced itself for a bargaining unit and
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`dictated core CBA features on the industry. The narrow targeting of certain fast-
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`food employers for the Just Cause Laws’ many intrusive requirements supports that
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`the Laws are not minimum labor standards.
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`4.
`
`The City ignores clear legislative history showing the Laws’
`purpose was to provide this industry what a union provides.
`
`Plaintiffs showed (at 45-48) that the district court’s refusal to consider
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`legislative history was error: a law’s motivation is crucial in preemption cases.
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`The City does not seriously disagree, even tacitly acknowledging that the
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`district court’s analysis was wrong. City Br. 39-40. Instead, the City asserts that
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`Plaintiffs’ “view of the legislative history is off base,” id., and then studiously
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`ignores every piece of legislative history Plaintiffs cited.
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`The Just Cause Laws were not merely “supported by unions,” as the City and
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`its amici claim. Id.; Labor Prof. Br. 16-17; States Br. 20. They were initiated and
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`drafted in part by the union (SEIU) hoping to unionize the industry. JA48 ¶¶ 15-17
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`Case 22-491, Document 104, 10/12/2022, 3398652, Page17 of 38
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`(confirming that SEIU “pitched” and assisted in drafting the legislation); JA49 ¶ 21
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`(evidencing City Council staff incorporating edits from SEIU local chapter 32BJ
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`staff). Councilmember Lander described the Laws’ sponsors as himself, one other
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`councilmember, and “SEIU 32-BJ.” JA50 ¶ 24.4
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`The City and its amici completely ignore that the SEIU (and Lander) saw the
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`Laws as an important part of SEIU’s “strategy for organizing fast food workers,”
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`JA155, and encouraging fast-food employees to “organize together with other
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`workers.” JA50 ¶ 28. The Laws explicitly provided this bargaining unit the
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`“key[]” part of “what a union provides.” JA49-50 ¶¶ 20, 24. Blessing this strategy
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`would transgress Machinists by encouraging “unions to focus on lobbying at the
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`[legislature] instead of negotiating at the bargaining table.” Shannon, 549 F.3d at
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`1132-33.
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`The mere fact that the City also entered some self-serving statements in the
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`record regarding supposed financial insecurity (City Br. 40, 44) does not change the
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`above history. See NELP Br. 8-9 (cherry-picking quotes from “report” drafted by
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`SEIU). The district court erred by refusing to consider the legislative history, which
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`4 Indeed, an official City press release on the Just Cause Laws includes statements
`from the 32BJ SEIU President and the SEIU International President describing the
`Laws as an “incredible win for working families show[ing] the power fast food
`workers have built together.” Mayor de Blasio Signs “Just Cause” Worker Protection
`Bills for Fast Food Employees (Jan. 5, 2021), https://tinyurl.com/ykkxf5nm.
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`Case 22-491, Document 104, 10/12/2022, 3398652, Page18 of 38
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`shows the Laws were a targeted fulfillment of the union’s wish list, consciously
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`enacted to aid unionization efforts. The Laws were “designed to encourage”
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`collective bargaining. Concerned Home Care Providers, 783 F.3d at 85.
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`5.
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`The City’s attempt to distinguish on-point cases falls short.
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`Throughout its argument, the City attempts to distinguish Plaintiffs’ cases—
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`and particularly Shannon and Bragdon—on their facts. See City Br. 24-27, 30-31.
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`But the City’s arguments are wrong. See Opening Br. 30-31; Chamber Br. 17-19.
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`First, this Court has not “expressed considerable doubt about whether
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`Bragdon and Shannon were correctly decided.” City Br. 24, 30. It simply declined
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`to weigh in because the facts in those cases were distinguishable from the facts in
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`Concerned Home Care Providers, 783 F.3d at 86 n.8, and Rondout Electric, Inc. v.
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`NYS Department of Labor, 335 F.3d 162, 169 (2d Cir. 2003).
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`The City next attempts (at 26-27) to distinguish Shannon by noting hotel
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`workers were negotiating with their employer over a new CBA when the Illinois
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`legislature passed a law requiring certain breaks for hotel workers in Cook County.
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`549 F.3d at 1121-22. But the timing of the law played no part in the Seventh
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`Circuit’s analysis, which held the law was preempted because it:
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` was not generally applicable—“it applie[d] to only one occupation (room
`attendants), in one industry (the hotel industry), in one county (Cook
`county),” id. at 1129-30;
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` was not a “low threshold” or “minimal” law, but rather “establishe[d]
`terms of employment that would be very difficult for any union to bargain
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`Case 22-491, Document 104, 10/12/2022, 3398652, Page19 of 38
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`for,” like a “presumption of retaliation” shifting “the burden of proof to the
`employer,” id. at 1134-36; and
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` created treble damages with interest and required payment of costs and
`attorney’s fees, id. at 1135.
`The City never argues that these reasons for preemption do not apply in this case.
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`Finally, the City attempts to distinguish Bragdon by noting that the prevailing-
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`wage law there was set based on an average of “wages and benefits for each craft
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`pursuant to collective-bargaining agreements applicable in each labor market”—so
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`it “effectively impos[ed] bargained-for terms across the industry.” City Br. 25
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`(citing Bragdon, 64 F.3d at 502-03). But just as the law in Bragdon “codified [a
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`CBA term] across the industry,” City Br. 26, so too the Just Cause Laws impose the
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`“keystone of [a] collective bargaining agreement” on (portions of) the fast-food
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`industry in NYC, Opening Br. 6, 46.
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`The Laws took the just-cause termination, dispute-resolution, progressive-
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`discipline, and detailed layoff and hours-reduction rules (“part of what a union
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`provides”) directly from CBAs and imposed them across the industry. JA50 ¶ 24.
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`Under the City’s logic, the Just Cause Laws are preempted.5
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`5 The City also claims (at 31) that Associated Builders & Contractors of Southern
`California v. Nunn, 356 F.3d 979, 990 (9th Cir. 2004), overruled Bragdon, but it did
`not. It simply clarified that narrow tailoring is relevant, but not sufficient, for
`preemption. Opening Br. 36 n.7.
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`13
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`Case 22-491, Document 104, 10/12/2022, 3398652, Page20 of 38
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`6.
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`The Laws’ unprecedented scope shows they are not
`“traditional” or “unexceptional” exercises of state power.
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`Minimum labor standards are “traditional” and “unexceptional exercise[s]” of
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`state power because the NLRA was drafted against the backdrop of such state laws.
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`Metro. Life, 471 U.S. at 725; see also, e.g., Hull v. Dutton, 935 F.2d 1194, 1198
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`(11th Cir. 1991) (noting the Supreme Court has described