successorship doctrine in California

2011(See John Wiley, supra, 376 U.S. at p. 548 [“Federal law, fashioned ‘from the policy of our national labor laws,’ controls.”]; cf. Howard Johnson, supra, 417 U.S. at p. 255 [observing that federal common law regarding enforcement of collective-bargaining agreements “must be ‘fashion[ed] from the policy of our national labor laws’ ”].) The City conceded in oral argument that the ordinance would be preempted by the NLRA if it expressly declared the new owner to be a successor within the meaning of the successorship doctrine, but the City asserted the express 90-day limitation avoids preemption.

2011(See John Wiley, supra, 376 U.S. at p. 548 [―Federal law, fashioned ‗from the policy of our national labor laws,‘ controls.‖]; cf. Howard Johnson, supra, 417 U.S. at p. 255 [observing that federal common law regarding enforcement of collective-bargaining agreements ―must be ‗fashion[ed] from the policy of our national labor laws‘‖].) The City conceded in oral argument that the ordinance would be preempted by the NLRA if it expressly declared the new owner to be a successor within the meaning of the successorship doctrine, but the City asserted the express 90-day limitation avoids preemption.

2011(See Fall River Dyeing, at p. 41 [considering as relevant to successorship whether a “new employer makes a conscious decision” to retain employees, because it demonstrates “the employer intends to take advantage of the trained work force of its predecessor”]; NLRB v. Burns Security Services, supra, 406 U.S. at p. 278 [upholding the imposition of a duty to bargain based in part on the fact a successor employer had “selected as its work force the employees of the previous employer”].) The NLRB likewise has not formally spoken to the effect of a 90-day retention ordinance on the successorship inq

2011(See Fall River Dyeing, at p. 41 [considering as relevant to successorship whether a ―new employer makes a conscious decision‖ to retain employees, because it demonstrates ―the employer intends to take advantage of the trained work force of its predecessor‖]; NLRB v. Burns Security Services, supra, 406 U.S. at p. 278 [upholding the imposition of a duty to bargain based in part on the fact a successor employer had ―selected as its work force the employees of the previous employer‖].) The NLRB likewise has not formally spoken to the effect of a 90-day retention ordinance on the successorship inq

2011(See John Wiley, supra, 376 U.S. at p. 548 [“Federal law, fashioned ‘from the policy of our national labor laws,’ controls.”]; cf. Howard Johnson, supra, 417 U.S. at p. 255 [observing that federal common law regarding enforcement of collective-bargaining agreements “must be ‘fashion[ed] from the policy of our national labor laws’ ”].) The City conceded in oral argument that the ordinance would be preempted by the NLRA if it expressly declared the new owner to be a successor within the meaning of the successorship doctrine, but the City asserted the express 90-day limitation avoids preemption.

2011(See John Wiley, supra, 376 U.S. at p. 548 [―Federal law, fashioned ‗from the policy of our national labor laws,‘ controls.‖]; cf. Howard Johnson, supra, 417 U.S. at p. 255 [observing that federal common law regarding enforcement of collective-bargaining agreements ―must be ‗fashion[ed] from the policy of our national labor laws‘‖].) The City conceded in oral argument that the ordinance would be preempted by the NLRA if it expressly declared the new owner to be a successor within the meaning of the successorship doctrine, but the City asserted the express 90-day limitation avoids preemption.

2011(See Fall River Dyeing & Finishing Corp. v. NLRB, supra, 482 U.S. at p. 43; Howard Johnson Co. v. Hotel Employees, supra, 417 U.S. at p. 256 .) The United States Supreme Court has not had occasion to consider whether in assessing business continuity for successorship purposes a temporary, involuntary retention of a workforce is materially different from a permanent, voluntary retention, but language in the court‘s opinions supports the view that it is.

2009(See, e.g., John Wiley & Sons v. Livingston (1964) 376 U.S. 543, 550-551 [ 11 L.Ed.2d 898 , 84 S.Ct. 909 ] [whether successor had duty to arbitrate under predecessor's collective bargaining agreement]; NLRB v. Burns Security Services (1972) 406 U.S. 272, 277-281 [ 32 L.Ed.2d 61 , 92 S.Ct. 1571 ] [successor's obligation under collective bargaining agreement and duty to bargain]; Golden State Bottling Co. v. NLRB (1973) 414 U.S. 168, 174-175 [ 38 L.Ed.2d 388 , 94 S.Ct. 414 ] [whether successor was liable for predecessor's unfair labor practices]; Howard Johnson Co. v. Hotel Employees (1974) 417

2011(See Labor Board v. Jones & Laughlin (1937) 301 U.S. 1, 45 [ 81 L.Ed. 893 , 57 S.Ct. 615 ] [“The Act does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them.” (italics added)].) We observe that the United States Court of Appeals for the District of Columbia Circuit, considering essentially the identical claim, viz., that successorship principles compelled preemption of a local 90-day retention ordinance, has similarly concluded that nothing in the NLRA guarantees to new employers the right to refuse to hire predecessor employees, or

2011(See Labor Board v. Jones & Laughlin (1937) 301 U.S. 1, 45 [ 81 L.Ed. 893 , 57 S.Ct. 615 ] [“The Act does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them.” (italics added)].) We observe that the United States Court of Appeals for the District of Columbia Circuit, considering essentially the identical claim, viz., that successorship principles compelled preemption of a local 90-day retention ordinance, has similarly concluded that nothing in the NLRA guarantees to new employers the right to refuse to hire predecessor employees, or

2009Such a ruling by the NLRB would presumably represent the Board's judgment that enforcing its successorship requirement in the context of DWPA hires would be congruent with the aims of the NLRA." ( Washington Service, supra, 54 F.3d at pp. 816-817; see Alcantra v. Allied Properties, LLC (E.D.N.Y. 2004) 334 F.Supp.2d 336, 339, 344 [New York City ordinance requiring purchasers of large buildings to retain service employees of seller for 90 days not preempted by NLRA]; Rosen et al., Cal. Practice Guide: Federal Employment Litigation (The Rutter Group 2009) § 10:1199, pp. 10-101 to 10-102 ["The NLR

2009(See, e.g., John Wiley & Sons v. Livingston (1964) 376 U.S. 543, 550-551 [ 11 L.Ed.2d 898 , 84 S.Ct. 909 ] [whether successor had duty to arbitrate under predecessor's collective bargaining agreement]; NLRB v. Burns Security Services (1972) 406 U.S. 272, 277-281 [ 32 L.Ed.2d 61 , 92 S.Ct. 1571 ] [successor's obligation under collective bargaining agreement and duty to bargain]; Golden State Bottling Co. v. NLRB (1973) 414 U.S. 168, 174-175 [ 38 L.Ed.2d 388 , 94 S.Ct. 414 ] [whether successor was liable for predecessor's unfair labor practices]; Howard Johnson Co. v. Hotel Employees (1974) 417

2009(See, e.g., John Wiley & Sons v. Livingston (1964) 376 U.S. 543, 550-551 [ 11 L.Ed.2d 898 , 84 S.Ct. 909 ] [whether successor had duty to arbitrate under predecessor's collective bargaining agreement]; NLRB v. Burns Security Services (1972) 406 U.S. 272, 277-281 [ 32 L.Ed.2d 61 , 92 S.Ct. 1571 ] [successor's obligation under collective bargaining agreement and duty to bargain]; Golden State Bottling Co. v. NLRB (1973) 414 U.S. 168, 174-175 [ 38 L.Ed.2d 388 , 94 S.Ct. 414 ] [whether successor was liable for predecessor's unfair labor practices]; Howard Johnson Co. v. Hotel Employees (1974) 417

2009(See Shares, supra, 433 F.3d at p. 943, italics added ["It is well established that a new employer has a duty to bargain when it makes a conscious decision to maintain generally the same business and to hire a majority of its employees from its predecessor."].) The Ordinance does not require employers to offer any employment beyond the transitional period, or to retain employees in the same position they previously held or to provide them with any particular wage or benefit.