          United States Court of Appeals
                      For the First Circuit

No. 11-1415

       RHODE ISLAND HOSPITALITY ASSOCIATION; PRI I, L.P.;
                        PRI XVIII, L.P.,

                     Plaintiffs, Appellants,

                                v.

                       CITY OF PROVIDENCE,
      by and through its Treasurer, JAMES J. LOMBARDI, III,

                       Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF RHODE ISLAND
         [Hon. Mary M. Lisi, Chief U.S. District Judge]



                              Before

                       Lynch, Chief Judge,
                Boudin and Stahl, Circuit Judges.



          Robert P. Brooks, with whom Richard R. Beretta, Jeffrey
K. Techentin, Avital R. Chatto, and Adler, Pollock & Sheehan PC
were on brief, for appellants.
          Anthony F. Cottone, Deputy City Solicitor, with whom
Jeffrey M. Padwa, City Solicitor, was on brief, for appellee.
          Michael T. Anderson, with whom Murphy Anderson PLLC,
Amato A. DeLuca, Jeffrey A. Mega, and DeLuca & Weizenbaum Ltd. were
on brief, for Hospitality Employees and Community Organizations,
amicus curiae.



                         December 2, 2011
            LYNCH, Chief Judge.     This case presents the issue of the

constitutionality     of   an   ordinance   of    the   City    of   Providence

requiring that, when there is a change in the identity of a

hospitality employer, that employer must retain its predecessor's

employees, subject to some conditions, for a three-month period.

Plaintiffs, in their request for a pre-enforcement declaratory

judgment that the ordinance is unlawful, contend that the ordinance

is pre-empted under the National Labor Relations Act (NLRA), and

violates the Equal Protection Clause and the Contract Clause.               The

district court rejected plaintiffs' claims. R.I. Hospitality Ass'n

v. City of Providence, 775 F. Supp. 2d 416 (D.R.I. 2011).                    We

affirm.

                                     I.

            This suit arises out of Ordinance 467, which was enacted

by the City of Providence and regulates segments of the hospitality

industry.     The initial version of the Ordinance was passed on

October 26, 2009; it was substantially amended on November 1, 2010.

Providence,   R.I.,   Ordinance    334    (Nov.   1,    2010)   (codified   at

Providence, R.I., Code § 2-18.5).           Only the provisions of the

amended Ordinance are at issue in this suit.

            The preamble to the Ordinance states that it was enacted

in response to "the wholesale displacement of employees through

transfers of hotel operations in New England in the recent past,"

which "has caused great public outcry, and has caused immeasurable


                                    -2-
damage to the reputation of the tourist industry in the regional

economy."    Providence, R.I., Ordinance 334, pmbl. (Nov. 1, 2010).

The stated purpose of the Ordinance is "to bolster Providence as a

tourist destination, and to promote the stability of Providence's

hospitality and tourism businesses."          Providence, R.I., Code § 2-

18.5(a).

            The Ordinance regulates the "hospitality business," which

includes:

            any hotel, motel, resort, boarding house, or
            bed and breakfast which is kept, used or
            advertised as, or held out to the public as, a
            place    where   sleeping   or    housekeeping
            accommodations are supplied for pay to guests
            . . . which is operating within the City of
            Providence with at least 25 rooms, and any in-
            house     component    thereof,     including
            housekeeping services, front desk, laundry,
            room service, valet, bell desk, restaurant,
            food   and/or  beverage   service   or   other
            operation facilitating guest services . . . .


Id.   §   2-18.5(b).    At   least    eight    hotels   fall   within   this

definition.1

            The triggering condition for operation of the Ordinance

is a "change in the identity of the hospitality employer," id.

§ 2-18.5(c)(1), which is defined as "any event or sequence of

events (including a purchase, sale, lease, or termination of a



      1
        The Ordinance exempts from coverage "the Providence Place
Mall, and any instrumentality of the State of Rhode Island,
including the Rhode Island Convention Center." Providence, R.I.,
Code § 2-18.5(b).

                                     -3-
management contract or lease) that causes, within a one-year

period, the identity of the hospitality employer at a hospitality

business to change," id. § 2-18.5(b).   A "hospitality employer" is

defined as "a person, whether owner or a manager, who acts as the

immediate employer of the employees in a hospitality business."2

Id.

          The Ordinance requires that

          [i]n the event of a change in the identity of
          the employer at a hospitality business, the
          new employer (whether the hospitality business
          owner or its manager) shall retain for at
          least three (3) months after the commencement
          of operation of the hospitality business under
          the new hospitality business employer, those
          employees who were employed for at least two
          (2) months preceding the date on which the
          previous   hospitality   business   employer's
          status as employer terminated.

Id. § 2-18.5(c)(1).

          This three-month retention of those previously employed

for two months or more is subject to three qualifications.   First,

such employees3 need not be retained (or may be discharged during


      2
        The term "person" is defined to include a variety of legal
entities as well as individuals.     Providence, R.I., Code § 2-
18.5(b).
        The term "manager" is defined as "any person who operates
a hospitality business on behalf of another person pursuant to a
lease, sublease, management agreement, operating agreement,
franchise agreement or other arrangement." Id.
      3
        The Ordinance defines an "employee" as "any person employed
to perform any services by a hospitality business" who works "an
average of at least twenty (20) hours per week," excluding (1) "any
supervisors or managerial employees as defined in 29 U.S.C.
§ 152(11)" and (2) those employed "by a hospitality business as an

                               -4-
the three-month period) if "the new hospitality business employer

determines    that   fewer   employees    are   required    for   its    full

operation," in which case the employer need only "retain that

number of employees needed for its new operations."               Id. § 2-

18.5(c)(2).    Second, during the three-month period, the employer

has "the right to discharge any employee . . . for good cause."

Id. § 2-18.5(c)(1).    Third, during the three-month period, the new

employer is entitled to set the terms and conditions of employment:

the employees "shall be employed under the terms and conditions

established by the hospitality business buyer or manager or as

required by law."      Id.    These provisions have an obvious, but

somewhat limited, impact on the new employer's ability to choose

its own different employees during the three-month period.              After

the three-month period elapses, the Ordinance does not purport to

regulate the new employer's operations.

          The Ordinance contains two other provisions of note.

First, it contains a "preservation of rights" section, which

provides that "[n]o provision of this Ordinance shall be construed

to impair, prohibit, or provide for any right of recovery for, that

lawful exercise of employees' or employers' right to engage in

strike or lockout," and that "[n]othing in this Ordinance shall

impose any obligation, direct or indirect, on any instrumentality

of the State of Rhode Island."           Id. § 2-18.5(d).     Second, the


independent contractor."     Providence, R.I., Code § 2-18.5(b).

                                   -5-
Ordinance provides an enforcement mechanism.             Employees who have

not been retained or who have been discharged in violation of the

Ordinance may bring suit in state court, subject to a three year

statute of limitations, and may receive (1) backpay for each day of

the violation, (2) treble damages if the violation is willful, and

(3) attorneys' fees.        Id. § 2-18.5(e).

                                       II.

            The plaintiffs are PRI I, L.P., PRI XVIII, L.P., and the

Rhode Island Hospitality Association.           PRI I does business as the

Hilton Providence         and   PRI XVIII    does   business   as   the   Westin

Providence.    The Westin's workforce is unionized; the Hilton's is

not.    The Rhode Island Hospitality Association is a trade group of

the food service, lodging, restaurant, and tourism industry in

Rhode    Island,    and     includes    eight   hotels   within     Providence

(including    the   two    individual    plaintiffs),    all   of   which   are

hospitality businesses within the meaning of the Ordinance.

            Plaintiffs brought suit against the City of Providence

requesting a declaratory judgment that the Ordinance was unlawful

as well as an injunction preventing enforcement of the Ordinance.

In addition to the issues raised both before the district court and

on appeal, plaintiffs raised a fifth issue before the district

court: that the Ordinance exceeds the City's home rule authority

under state law.     The fifth issue is not presented on appeal.




                                       -6-
            The parties submitted a set of stipulated facts and

agreed that the case would be decided on the merits.             After the

parties briefed the issues and a hearing was held, the district

court rejected plaintiffs' claims and entered judgment for the

defendant.       R.I. Hospitality, 775 F. Supp. 2d 416.      This appeal

followed.

                                   III.

            Because the parties agreed to have the case decided on

the merits on a set of stipulated facts, we review the district

court's factual inferences for clear error and any purely legal

rulings de novo.       See García-Ayala v. Lederle Parenterals, Inc.,

212 F.3d 638, 643-45 (1st Cir. 2000); United Paperworkers Int'l

Union, Local 14 v. Int'l Paper Co., 64 F.3d 28, 31-32 (1st Cir.

1995).     Here, the parties do not dispute any facts and the only

questions presented are legal, so review is de novo.

            Plaintiffs advance four theories as to why they are

entitled    to    a   pre-enforcement   declaratory   judgment   that   the

Ordinance is prohibited by federal law.4       Their primary argument is


     4
        The Ordinance, by its terms, only subjects businesses that
undergo a change in the identity of the employer -- such as a
purchase, sale, or management contract -- to the three-month
retention requirement. None of the existing plaintiffs includes a
new employer, nor do the plaintiffs allege that such a change in
identity is imminent, unlike the plaintiffs in other similar cases.
See Wash. Serv. Contractors Coal. v. District of Columbia, 858 F.
Supp. 1219, 1223 (D.D.C. 1994) (explaining that one of the
plaintiffs had been subjected to a similar ordinance, and at least
one employee had asked to be retained pursuant to the ordinance),
rev'd, 54 F.3d 811 (D.C. Cir. 1995).

                                    -7-
that the Ordinance, for several reasons, is pre-empted under the

NLRA's Machinists pre-emption doctrine.    See Lodge 76, Int'l Ass'n

of Machinists v. Wis. Emp. Relations Comm'n, 427 U.S. 132 (1976)

(hereinafter Machinists).    Second, they contend that the ordinance

is pre-empted under the NLRA's Garmon doctrine.       See San Diego

Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959).    Third, they

claim that the Ordinance violates the Equal Protection Clause.

Finally, they argue that the Ordinance effects a violation of the

Contract Clause.

          Each of these claims fails and the Ordinance survives

pre-enforcement review.     Two other courts have considered similar

arguments about similar retention ordinances and reached the same

conclusion, albeit over dissenting opinions.5       See Wash. Serv.

Contractors Coal. v. District of Columbia, 54 F.3d 811 (D.C. Cir.

1995) (evaluating D.C. law requiring contractors who take over



        The City does not contend the plaintiffs lack standing.
The plaintiffs do allege that the Ordinance interferes with their
present negotiations with unions and their current ability to
engage in subcontracting, and this suffices to give Article III
standing. See Weaver's Cove Energy v. R.I. Coastal Res., 589 F.3d
458, 467 (1st Cir. 2009).
     5
        A third court has also addressed this issue, but only in
the context of whether a state case could be removed to federal
court based on a pre-emption defense, which the court explained was
proper only when "the pre-emptive force of a statute [is] so
extraordinary that it converts an ordinary state common-law
complaint into one stating a federal claim." Alcantara v. Allied
Props., LLC, 334 F. Supp. 2d 336, 340 (E.D.N.Y. 2004) (quoting
Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987)) (internal
quotation marks omitted).

                                  -8-
contracts for the provision of certain services to hire their

predecessors' employees for 90 days); Cal. Grocers Ass'n v. City of

Los Angeles, 254 P.3d 1019 (Cal. 2011) (evaluating Los Angeles

ordinance requiring grocery stores of a certain size to hire their

predecessors' employees for 90 days).

A.           Machinists Pre-emption

             While the NLRA does not contain an express pre-emption

provision,     the    Supreme   Court     has        developed   two    pre-emption

doctrines applicable to the Act: Garmon pre-emption and Machinists

pre-emption.       The first to be developed was the Garmon doctrine,

which holds that "States may not regulate activity that the NLRA

protects, prohibits, or arguably protects or prohibits."                          Wis.

Dep't of Indus., Labor & Human Relations v. Gould Inc., 475 U.S.

282, 286 (1986).       Garmon itself foreshadowed what was to become the

Machinists doctrine, noting that the NLRB "may decide that an

activity is neither protected nor prohibited, and thereby raise the

question whether such activity may be regulated by the States."

359 U.S. at 245.

             The     foreshadowed      issue    was     squarely      presented     in

Machinists.        There, after a collective bargaining agreement had

lapsed and the union and employer were negotiating a new agreement,

the union adopted a resolution binding union members to refuse to

work   any   overtime,     as   part    of     its    strategy   in    the   ongoing

bargaining negotiations.         427 U.S. at 134.          The employer filed a


                                        -9-
charge with the NLRB, alleging that this resolution violated the

NLRA; the NLRB dismissed the charge on the ground that the conduct

was neither protected nor prohibited by the Act.                        Id. at 135.     The

employer then filed a complaint before a state agency, alleging

that the resolution violated state law.                      Id.    The state agency

agreed with the employer and held that it could regulate this

conduct    as    the   NLRB       had   held   it   was   neither        protected      nor

prohibited under the NLRA.              Id. at 135-36.

            In Machinists, the state agency had essentially thrust

itself into an ongoing collective bargaining negotiation.                               The

Supreme Court reversed the state agency's determination. The Court

noted that "the crucial inquiry regarding pre-emption is . . .

whether 'the exercise of plenary state authority to curtail or

entirely        prohibit      self-help          would       frustrate         effective

implementation of the Act's processes.'"                     Id. at 147-48 (quoting

Bhd. of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369,

380 (1969)).      The Court explained its rationale in broader terms

than the actual test it created, that Congress intended certain

conduct    "be    unregulated       because      [it   was    to   be]     left   'to    be

controlled by the free play of economic forces,'" even where such

conduct was neither arguably protected nor arguably prohibited

under the Act.         Id. at 140 (quoting NLRB v. Nash-Finch Co., 404

U.S. 138, 144 (1971)).             The Court stated that this limitation of

state authority        was    a    negative    implication         of    the   NLRA:    "To


                                          -10-
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.'"      Id.       at   150    (alterations    in   original)     (quoting

Lesnick, Preemption Reconsidered: The Apparent Reaffirmation of

Garmon, 72 Colum. L. Rev. 469, 478 (1972)) (internal ellipses

omitted).

            Under Machinists, the Court has addressed whether a

variety of state conduct is pre-empted by negative implication from

the NLRA, although not in a case on all fours with this case.                     For

example, breach of contract actions brought by employees who were

hired to replace striking workers against employers who promised

them permanent employment are not pre-empted under the doctrine.

Belknap, Inc. v. Hale, 463 U.S. 491, 500-07 (1983).                             A law

requiring group health plans to provide a minimum level of mental

health protection, Metro. Life Ins. Co. v. Massachusetts, 471 U.S.

724, 729-31 (1985), and a law requiring certain employers who cease

or relocate operations to provide severance payments to employees,

Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 3-4 (1987), have

also       been    upheld              against      Machinists        challenges.

            The Court has found other types of conduct which more

directly involves the state in ongoing labor negotiations, strikes,


                                          -11-
or labor actions to be pre-empted.     In Golden State Transit Corp.

v. City of Los Angeles, 475 U.S. 608, 619-20 (1986), the Court held

that a city council's conditioning of a taxi cab franchise renewal

on resolution of an ongoing labor dispute by a certain date, and

consequent expiration of the franchise, was pre-empted. The Golden

State Transit Court held that the labor dispute and the franchise

renewal issue had become clearly intertwined.      Id. at 610.    The

effect of the city council's action was to thwart the ongoing

bargaining process by placing a time limit on the company's use of

its economic power to withstand the strike.     Id. at 615.   This was

a direct violation of Congress's intent that the city not use its

licensing power to destroy the balance between union and management

in the use of economic weapons.   Id. at 619.

           Most recently, in Chamber of Commerce v. Brown, 554 U.S.

60, 62 (2008), the Court held that a California law prohibiting

certain employers that receive state funds from using such funds to

assist, promote or deter union organizing was pre-empted, given the

"explicit direction from Congress to leave noncoercive speech

unregulated." Id. at 68. Further, the California statute exempted

activities that promoted unionization.    Id. at 63.   Significantly,

despite its statement of neutrality, the state law did not operate

neutrally as to employers, who were forbidden from using these

monies to influence the decisions of employees as to whether to

join unions.   Id. at 63, 71.   It also established a "formidable"


                                -12-
enforcement scheme, created presumptions against employers, and

permitted suit by the state attorney general and any private

taxpayers.      Id. at 63-64, 72.     This meant that even "a trivial

violation of the statute could give rise to substantial liability."

Id. at 72.

           On the other side of the equation, the Court found that

the NLRA itself embodies a "First Amendment right of employers to

engage in noncoercive speech about unionization." Id. at 67. That

Congressional judgment was reinforced with the enactment of the

Labor Relations Act of 1947, 61 Stat. 136, 29 U.S.C. §§ 157-158,

curtailing the power of even the NLRB to restrict such speech,

Brown, 554 U.S. at 67.      Machinists pre-emption remains "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.'"          Id. at 65 (quoting

Machinists, 427 U.S. at 140 n.4).6




      6
        The Court has addressed the doctrine in two other cases of
little relevance to this appeal. In New York Telephone Co. v. New
York State Department of Labor, 440 U.S. 519 (1979), a fractured
Court upheld a state law providing unemployment benefits to
striking workers. A majority suggested that the law would be pre-
empted under Machinists, but found that the particular legislative
history of the NLRA and the Social Security Act required finding
that the law was not pre-empted. Id. at 545-47, 551.
        In Building & Construction Trades Council v. Associated
Builders & Contractors, 507 U.S. 218, 227, 232-33 (1993), the Court
held that the Machinists doctrine is applicable only when the state
acts in its regulatory capacity, and does not apply when a state
acts in its proprietary capacity as a market participant.

                                    -13-
                  Plaintiffs sound three themes under Machinists.                   The

first two are more closely related: (1) The Ordinance creates a

major risk that a business which undergoes a change in identity

under       the    Ordinance    will     trigger     the   NLRB's     "successorship

doctrine," whereby businesses deemed to be "successors" to prior

businesses they have taken over are required to recognize and

bargain with the union that represented the employees of the

predecessor employer.           See Fall River Dyeing & Finishing Corp. v.

NLRB, 482 U.S. 27 (1987).                 Because the Ordinance requires new

employers to hire their predecessors' employees for three months,

plaintiffs argue this makes it much more likely, or even certain,

the NLRB will conclude an employer is a successor and required to

bargain with any incumbent union; and (2) that the Ordinance

accordingly improperly enhances the bargaining power of unions.

The final claim is (3) that an employer has a "right" to make its

own hiring decisions upon acquiring a new business and that right

falls within          the   zone of      conduct    Congress   intended        to leave

unregulated         by   the   states.      These    claims    are,   to   a    degree,

interrelated.7




        7
        The pre-emption analysis under Machinists "is not affected
by the fact that we are reviewing a city's actions rather than
those of a State."    Golden State Transit Corp. v. City of Los
Angeles, 475 U.S. 608, 614 n.5 (1986).

                                           -14-
                1.      The NLRB Successorship Doctrine

                Plaintiffs'     primary       Machinists       claim     involves   the

relationship of the Ordinance's three-month mandatory retention

period to the NLRB's successorship doctrine.                    This doctrine deals

"with the issue of a successor employer's obligation to bargain

with       a   union   that     had    represented       the    employees     of    its

predecessor."8         Fall River Dyeing, 482 U.S. at 36.                A finding of

successorship imposes an obligation on the successor "to bargain

with the union" of its predecessor.                  Id. at 40.        However, even a

successor "'is ordinarily free to set initial terms on which it

will hire the employees of a predecessor,' and it is not bound by

the    substantive       provisions      of    the    predecessor's        collective-

bargaining agreement."9              Id. (quoting NLRB v. Burns Int'l Sec.

Servs.,        Inc.,   406    U.S.    272,    294    (1972))    (internal     citation

omitted).

                Under this doctrine, determining whether a new company is

a successor "is primarily factual in nature and is based upon the


       8
        The successorship doctrine is only relevant where the
predecessor's employees were represented by a union.
       9
        In some instances, where an employer is found to be a
"perfectly clear" successor, it "must bargain with the employees'
representative before it changes any terms to which its predecessor
had agreed." S & F Mkt. St. Healthcare, LLC v. NLRB, 570 F.3d 354,
358 (D.C. Cir. 2009); see also NLRB v. Burns Int'l Sec. Servs.,
Inc., 406 U.S. 272, 294-95 (1972) ("[T]here will be instances in
which it is perfectly clear that the new employer plans to retain
all of the employees in the unit and in which it will be
appropriate to have him initially consult with the employees'
bargaining representative before he fixes terms.").

                                          -15-
totality of the circumstances of a given situation."         Id. at 43.

"[T]he focus is on whether there is 'substantial continuity'

between the enterprises," and involves assessment of a variety of

factors:

            whether the business of both employers is
            essentially the same; whether the employees of
            the new company are doing the same jobs in the
            same working conditions under the same
            supervisors; and whether the new entity has
            the same production process, produces the same
            products, and basically has the same body of
            customers.

Id.

            While the doctrinal test involves a multitude of factors,

typically the new employer must "hire a majority of its employees

from the predecessor" to be denominated a successor by the NLRB.

Id. at 41; see also Howard Johnson Co. v. Detroit Local Joint Exec.

Bd., 417 U.S. 249, 263 (1974) (to find successorship requires

finding "substantial continuity in the identity of the work force

across the change in ownership").

            Plaintiffs argue that because the Ordinance mandates

retention    of   the   predecessor's    employees,   and   because   the

composition of the workforce is an important factor in determining

whether a new employer is a "successor," the Ordinance has an

impermissible impact on the successorship determination, and it is

pre-empted under Machinists.

            Plaintiffs' argument rests on two premises: (1) that if

the NLRB reached such a conclusion, the state law would be pre-

                                  -16-
empted, and (2) that the risk that the NLRB might adopt such a

conclusion is, of itself, sufficient to render the Ordinance pre-

empted.   The first situation is not before us.       The NLRB has not to

date reached such a conclusion.     This challenge necessarily rests

on the second premise.      We will assume arguendo that, at least in

some circumstances, a strong risk of an NLRB decision could result

in Machinists pre-emption, even though there is a presumption

against pre-emption.        See Bldg.    &   Constr. Trades      Council   v.

Associated   Builders   &   Contractors,     507   U.S.   218,   224   (1993)

(explaining that the courts are "reluctant to infer pre-emption").

Even on that assumption, the degree of risk present here is

insufficient to result in Machinists pre-emption.

           There are two reasons for this.         The first is that the

Supreme Court caselaw on successorship stresses the voluntary and

conscious decisionmaking by the new employer and the consequent

effect on employees' views of their employment.           The Supreme Court

has explained that the successorship doctrine is based on the

"conscious decision" of the new employer "to maintain generally the

same business and to hire a majority of its employees from the

predecessor." Fall River Dyeing, 482 U.S. at 41 (emphasis added).

"This makes sense when one considers that the employer intends to

take advantage of the trained work force of its predecessor."            Id.

Under the Ordinance, however, the new employer has made no such

"conscious decision," nor has the employer "intend[ed] to take


                                  -17-
advantage" of the work force.       Rather, it will have been compelled

to continue the employment of the former business's employees,

subject to conditions, for three months.           To the extent that

employee expectations about continued employment are relevant, the

fact that retention of employees is only for three months pursuant

to the Ordinance may also weigh against a finding of successorship.

See id. at 43.

           Secondly, the NLRB has not to date clearly moved in the

direction plaintiffs posit, and it is far from clear that it will.

Indeed, the one NLRB administrative law judge (ALJ) to address this

matter in depth, in an opinion which went unreviewed by the full

board,   reached   a   conclusion   directly   opposite   to   plaintiffs'

hypothesis.      M&M Parkside Towers LLC, No. 29-CA-27720, 2007 WL

313429 (N.L.R.B. Jan. 30, 2007) (ALJ opinion).            There, the ALJ

explained that, under a similar 90-day retention ordinance, the

appropriate time to make the successorship determination was not

when the employees were initially hired pursuant to the ordinance,

nor at the end of the 90-day mandatory employment term, but rather

on "the date that offers of employment are actually made, or if not

made, at a reasonable time after the expiration of the 90 day

period."   Id.

           While the ALJ's opinion in M&M Parkside does not bind the

agency, the NLRB's General Counsel (at least as of the date of M&M

Parkside) has adopted a similar position: that the successorship


                                    -18-
determination     should   be   made       at   the   end   of   the   three-month

retention period. Id.

           It is true that a second ALJ addressed this question more

than fifteen years ago in United States Services Industries, Inc.,

No. 5-CA-24575, 1995 WL 1918207 (N.L.R.B. Dec. 13, 1995) (ALJ

opinion), and reached a different conclusion. The ALJ rejected the

new employer's argument that Fall River Dyeing's discussion of a

conscious decision to hire the employees had any impact on the

successorship determination.               U.S. Servs., 1995 WL 1918207.

Instead, the ALJ held that "[b]ecause the Board has never formally

adopted a requirement that a successor employer must consciously

decide to avail itself of its predecessor's trained workforce in

order to be considered a Burns' successor employer," the fact that

the   hiring   was   pursuant     to   a    compulsory      retention    ordinance

(similar to the one at issue in this case) did not alter the

application of the successorship doctrine. Id. This opinion is of

little value with respect to predicting how the NLRB might resolve

the successorship question.            The opinion treated the issue only

briefly, and based its decision on the fact that the Board had not

explicitly     addressed   this    type     of   ordinance.        Moreover,   the

position adopted there has not been followed by either the NLRB's

General Counsel or the more thoroughly reasoned M&M Parkside

opinion.     As a result, United States Services Industries sheds

little light on the position the Board might ultimately adopt and


                                       -19-
reflects a view of law that is far less current than the M&M

Parkside opinion.

          Nevertheless, it is possible that the NLRB, in exercising

its "considerable authority to interpret the provisions of the

NLRA," Fall River Dyeing, 482 U.S. at 42, might adopt another rule,

causing   the   Ordinance   to   have   a   dramatic   impact   on   the

successorship determination.10 Cf. Sahara Las Vegas Corp., 284

N.L.R.B. 337, 343 (1987) (concluding that a 90-day probationary

period "unilaterally imposed" by the new employer "has no legally

cognizable significance" on the successorship determination); see

generally Garmon, 359 U.S. at 245-46 (explaining that the Board

might decide that conduct is protected by the NLRA, prohibited

under the Act, "neither protected nor prohibited," or even "fail to

determine the status of the disputed conduct").

          The remedy for such a determination, if it should ever be

made, does not lie in this pre-enforcement suit.         Nothing would

prohibit a successor from raising the pre-emption question in an

appeal from the NLRB successorship determination based on the

involuntary continuation of employment under the Ordinance or in a


     10
        If we are wrong, and the NLRB decides otherwise, this
opinion does not limit the putative "successor's" ability to raise
defenses to enforcement.       At oral argument, the defendant
recognized that in such a circumstance, the Ordinance would
probably be pre-empted under the NLRA, and plaintiffs acknowledged
that if the NLRB were to impose successorship obligations on a
company that retained workers solely because of the Ordinance, such
a company could raise pre-emption arguments as a defense to any
enforcement action.

                                 -20-
state court action11 enforcing the Ordinance.           Indeed, the latter

situation is the most usual format in which Machinists issues have

been resolved.     See Fort Halifax, 482 U.S. at 5-6 (appeal from

state court enforcement of severance pay statute); Metro. Life, 471

U.S. at 734-38 (appeal from state court action seeking declaratory

and injunctive enforcement of state law); Belknap, 463 U.S. at 496-

97 (appeal from state breach of contract judgment); Machinists, 427

U.S. at 135-36 (appeal from state commission cease and desist

order).

          Alternatively,     a    new   action   for    declaratory    relief

regarding the Ordinance could be brought in federal court, should

the NLRB do what plaintiffs fear.           See Brown, 554 U.S. at 64-65

(suit requesting     injunctive    relief    preventing      state   statute's

enforcement); Golden State Transit, 475 U.S. at 611-13 (declaratory

action challenging city's intervention in labor dispute); N.Y. Tel.

Co. v. N.Y. State Dep't of Labor, 440 U.S. 519, 525-27 (1979)

(declaratory action challenging unemployment benefits provided to

striking workers).

          As   a   result,   in    this   request      for   pre-enforcement

declaratory relief, we are unable to conclude that the Ordinance

"would frustrate effective implementation of the Act's processes"



     11
        State courts have the ability to adjudicate the defense of
pre-emption. See Int'l Longshoremen's Ass'n v. Davis, 476 U.S.
380, 393 (1986) ("[W]hen a claim of Garmon pre-emption is raised,
it must be considered and resolved by the state court.").

                                   -21-
with respect to the successorship determination.   Machinists, 427

U.S. at 148 (quoting R.R. Trainmen, 394 U.S. at 380) (internal

quotation marks omitted); see also Livadas v. Bradshaw, 512 U.S.

107, 119 (1994) (explaining that NLRA pre-emption analysis "turns

on the actual content" of the state policy and "its real effect on

federal rights").12   The cases in which the Court found Machinists

pre-emption presented far stronger facts than here.




     12
         There are also uncertainties with respect to how the
Ordinance might be interpreted and applied in certain instances,
which are not before us. For example, it is not entirely clear how
the Ordinance would apply in the hypothetical instance of a
purchaser who, upon purchasing a hotel, immediately ceases all
operations for a period of time exceeding three months to renovate
the property.
        The Ordinance provides that the three-month retention
period begins "after the commencement of operation of the
hospitality business under the new hospitality business employer."
Providence, R.I., Code § 2-18.5(c)(1).     The Ordinance does not
define "commencement of operation." It seems unlikely that a new
employer would be required to retain workers during the renovation
period, as either the employer would not have "commenced"
operations, or if it were deemed to have commenced operations, the
provision of the Ordinance allowing it to discharge employees if
"fewer are required for its full operation than were required by
the previous hospitality business employer" would likely apply, as
the "full operation" at the time would simply be the renovation
project.
        However, it is unclear whether in such a circumstance the
new employer would not be required to retain the employees at all,
or would be obligated to retain them for three months once
renovation activities ceased. This is a question of interpretation
of local law for the state courts. Any pre-emption issues arising
from such an interpretation can be addressed should such an
interpretation be made.

                                -22-
          2.     The Claim That Employees Are Given Benefits For
                 Which They Would Otherwise Have Had To Bargain

          Plaintiffs' second Machinists claim is that, by providing

the employees with benefits for which they otherwise would have had

to bargain, the Ordinance impermissibly enhances employee and union

bargaining power, rendering it pre-empted.   This particular logic

was rejected by the Supreme Court in Metropolitan Life Insurance

Co. v. Massachusetts, 471 U.S. 724 (1985), and Fort Halifax Packing

Co. v. Coyne, 482 U.S. 1 (1987), and we reject it here.

          The Court in Fort Halifax rejected a Machinists challenge

to a Maine law requiring certain employers to provide severance pay

to employees when the employer relocated or ceased operations. The

Court explained that:

          It is true that the Maine statute gives
          employees something for which they otherwise
          might have to bargain. That is true, however,
          with   regard    to   any   state    law   that
          substantively regulates employment conditions.
          Both employers and employees come to the
          bargaining table with rights under state law
          that form a 'backdrop' for their negotiations.

Fort Halifax, 482 U.S at 21 (quoting Metro. Life, 471 U.S. at 757).

           The Court concluded by holding that "the mere fact that

a state statute pertains to matter over which the parties are free

to bargain cannot support a claim of pre-emption."          Id.   The




                               -23-
plaintiffs' argument provides no basis to distinguish this case

from Fort Halifax.13

            It is true that the Court in Metropolitan Life and Fort

Halifax upheld what it characterized as "[m]inimum state labor

standards" that were "not inconsistent with the general legislative

goals of the NLRA."     Metro. Life, 471 U.S. at 755, 757.         There may

be an outer boundary beyond which a state law can no longer be

deemed a "minimum labor standard," and there may be certain minimum

labor standards that are inconsistent with the goals of the NLRA.

The Supreme Court has not indicated what differentiates a "minimum

labor standard" from other labor standards, nor has it explained

why such standards are by virtue of that status not usually

inconsistent with the goals of the NLRA.      It is far from clear that

use of the phrase helps achieve clarity as to the boundaries of

permissible state regulation.

            Nevertheless,     plaintiffs   have     not   shown    that    the

Ordinance   exceeds    the   permissible   bounds    established    by    Fort

Halifax and Metropolitan Life.14     We assess this issue in light of



     13
        This argument is distinct from the argument we have already
rejected that the Ordinance is pre-empted because of the risk it
may assist unions under the successorship doctrine.
     14
        We do not comment on the district court's view that the
Ordinance "cannot be simply characterized as a 'minimum labor
standard.'" R.I. Hospitality Ass'n v. City of Providence, 775 F.
Supp. 2d 416, 433 (D.R.I. 2011). It is unclear when, if ever, a
state law that is not a "minimum labor standard" can survive
Machinists, but we need not address that question in this case.

                                   -24-
the Court's admonition that "pre-emption should not be lightly

inferred in this area, since the establishment of labor standards

falls within the traditional police power of the State."                      Fort

Halifax, 482 U.S. at 21; see also Metro. Life, 471 U.S. at 756

("States possess broad authority under their police powers to

regulate the employment relationship to protect workers within the

State." (quoting    DeCanas      v.   Bica,   424    U.S.    351,    356   (1976))

(internal    quotation    mark    omitted)).        Given    this,    if    it   is

permissible to require certain employers to provide severance pay

to employees, as in Fort Halifax, it is difficult to see why it

would be impermissible to require purchasers of hotel businesses to

retain employees for three months, under the terms and conditions

the new employer sets.           While the Ordinance is not completely

analogous to the law at issue in Fort Halifax, Plaintiffs do not

identify any distinction between the provisions of the Ordinance

and   the   mandatory    severance    payments      upheld   in     Fort   Halifax

sufficient to render the Ordinance pre-empted under Machinists.15


      15
        This case does not require us to assess a state law that
applies "to only one occupation . . . in one industry . . . in one
county," which one other circuit has held to be such a specific
regulation that it cannot be characterized as a permissible minimum
labor standard of general applicability. 520 S. Mich. Ave. Assocs.
v. Shannon, 549 F.3d 1119, 1130 (7th Cir. 2008). The Ordinance
here affects the entire hotel industry in Providence, with the
exception of any instrumentality of the state of Rhode Island and
facilities connected to the Providence Place Mall, and applies to
"any person employed to perform any services" by a hotel, or its
component entities, who was employed for at least two months by the
hotel. Providence, R.I., Code § 2-18.5(b), (c). That a state law
only regulates one industry is an insufficient basis to render it

                                      -25-
          3.         The "Right" to Hire and Fire

          Plaintiffs next contend that the Machinists doctrine

protects a new employer's "right" to make its own determinations of

both which employees to hire and to fire, and that state laws

cannot interfere with this "right."

          It is important to note the context in which plaintiffs'

challenge is raised.      The Ordinance does not impose an absolute

limitation on an employer's ability to hire or to fire.        Rather, it

imposes a limited requirement that a new employer retain for three

months those of its predecessor's employees with at least two

months' employment, after which the Ordinance no longer imposes

obligations.    Even during the three-month period, the Ordinance

allows the new employer to (1) set the terms and conditions of

employment,    (2)   discharge   employees   for   good   cause,   and   (3)

discharge employees if fewer are needed for its full operation.

Still, it does impose restrictions which may well otherwise not

exist.

          The resulting impact on the hiring and firing decisions

of new employers will vary with circumstances and individual facts.


pre-empted under Machinists. See Associated Builders & Contractors
v. Nunn, 356 F.3d 979, 990 (9th Cir. 2004) ("[T]he NLRA does not
authorize us to pre-empt minimum labor standards simply because
they are applicable only to . . . a particular industry."). In
addition, the fact that the city, rather than the state, regulates
this industry lessens Shannon's concern that "by regulating only
one county the state makes it possible to target union heavy
counties (or union-light counties), and thus reward (or punish)
union activity." 549 F.3d at 1133.

                                   -26-
Some of the retained employees will choose not to stay in light of

any new terms and conditions of employment, or even the prospect of

new management.           Of those who choose to stay, it is likely some

will have been at-will employees who can under the Ordinance be

terminated only for good cause.                   The employees, however, may

already      have     individual       contracts    or    collective     bargaining

contracts giving them greater protections than at-will employees.

And some new management as a matter of their own choice might

choose      regardless      of   the    Ordinance    to   ensure   continuity    by

retaining employees and/or discharging employees only for good

cause during this period.              At this pre-enforcement stage there is

no   data    on     the   Ordinance's     actual    effect   on    new   employers'

decisions.        In this factual context, plaintiffs' assertion is

unsupported.

              Plaintiffs' argument that there is a "right not to hire"

largely relies on two carefully chosen quotes from the Supreme

Court's precedent in the successorship context.                In Howard Johnson

Co. v. Detroit Local Joint Executive Board, 417 U.S. 249 (1974),

the Court remarked that Burns, 406 U.S. 272, the Court's first

successorship case, "establishes that Howard Johnson had the right

not to hire any of the former Grissom employees, if it so desired."

Howard Johnson, 417 U.S. at 262.                 And in Fall River Dyeing, the

Court, again citing to Burns, explained that "the successor is

under no obligation to hire the employees of its predecessor,


                                          -27-
subject, of course, to the restriction that it not discriminate

against union employees in its hiring."          482 U.S. at 40.

             These cases do not support plaintiffs' argument that

there is a "right" protected under Machinists for a new employer to

make independent hiring or termination determinations, much less

that   any   such   "right,"    if   it   existed,   would   be   impaired   by

compliance with the Ordinance.             Rather, the statements simply

indicated that, as a matter of federal labor law, the new employers

were not compelled by the successorship doctrine to hire their

predecessor's employees.        Plaintiffs do not claim that this is a

right grounded in the Constitution like the First Amendment right

at issue in Brown, nor that the NLRB has recognized such a general

right to hire and fire.         Rather, they attempt to derive such a

"right" from the language in Supreme Court opinions.

             The language in the Burns opinion makes it clear that the

Court was not establishing a Machinists protected right to hire new

employees, but rather simply noted that the NLRB "has never held

that the [NLRA] itself requires that an employer . . . hire all of

the employees of the predecessor . . . ."            Burns, 406 U.S. at 280

n.5 (emphasis added).          Similarly, the Court in Howard Johnson

explained Burns as remarking that "nothing in the federal labor

laws 'requires that an employer . . . who purchases the assets of

a business be obligated to hire all of the employees of the

predecessor though it is possible that such an obligation might be


                                      -28-
assumed by the employer.'"             Howard Johnson, 417 U.S. at 261

(alteration in original) (quoting Burns, 406 U.S. at 280 n.5)

(emphasis added).

               None of these cases purported to resolve any question

remotely similar to the argument advanced by plaintiffs here: that

the     NLRA    pre-empts    state    regulation      mandating   in     limited

circumstances the hiring, subject to several conditions, of a

previous employer's employees by a new employer.               Nothing in the

Court's Machinists line of cases establishes such pre-emption nor

do plaintiffs point to any authority outside of the isolated

statements discussed above as indicating that the NLRA was designed

to pre-empt such regulation.

               It is true there is no Supreme Court Machinists case just

like this one.       Still, to the extent that the NLRA has touched on

employers' hiring and firing abilities, it has largely limited

them.      Instead    it    has   created    rights   in   individuals    as   to

employment and discharge.16        One good example is the prohibition of


      16
        The legislative history of the NLRA, which touches briefly
on the authority of an employer to make hiring decisions, does not
support plaintiffs' argument. In connection with the prohibition
on discriminatory hiring located in section 8(a) of the Act, the
history notes that "[n]othing in this subsection prohibits
interference with the normal right of employers to select their
employees or to discharge them."     H.R. Rep. No. 74-969, at 17
(1935); H.R. Rep. No. 74-972, at 17 (1935); H.R. Rep. No. 74-1147,
at 19 (1935).    This language was reiterated in NLRB v. Jones &
Laughlin Steel Corp., 301 U.S. 1, 45 (1937), which explained that
"[t]he act does not interfere with the normal exercise of the right
of the employer to select its employees or to discharge them."
        This language does not indicate that the Act establishes

                                      -29-
discrimination based on union status.       See 29 U.S.C. § 158(a)(3)

(making it an unfair labor practice for an employer to discriminate

"in regard to hire or tenure of employment" with respect to union

status); cf. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 46

(1937) ("The   [NLRA]   has   been   criticized   as   one-sided   in   its

application; that it subjects the employer to supervision and

restraint and leaves untouched the abuses for which employees may

be responsible . . . .").

          The Ordinance is also not pre-empted when viewed as a

restriction on the ability of an employer to discharge certain

employees.   As noted above, the restriction is limited, in that it

only applies for three months, and during that time employers may

still discharge employees for good cause.     The limited duration of

the Ordinance, its conditions allowing discharge, and the ability



any "right" with respect to selection of employees. As there was
no previous general federal regulation of the employment
relationship, the "right" referred to could have been grounded in
either (1) the federal constitution, specifically the Due Process
Clause, or (2) generally extant state law. The former theory --
that the Due Process Clause prohibits state regulation of the
employment relationship -- has since been firmly rejected by the
Supreme Court. See Lincoln Fed. Labor Union v. Nw. Iron & Metal
Co., 335 U.S. 525, 533-37 (1949) (explaining the history of the
use of the Due Process Clause to invalidate employment regulations,
that beginning in 1934 the Court began to reject this theory, that
the theory has since been "deliberately discarded", and holding
that a state law prohibiting discrimination in hiring with respect
to a prospective employee's union or non-union status is not
invalid under the Due Process Clause); see also Cal. Grocers Ass'n
v. City of Los Angeles, 254 P.3d 1019, 1033-34 (Cal. 2011)
(rejecting the argument that "the NLRA was founded on and assumes
an employer's unfettered right to select its employees").

                                 -30-
of employers to set the terms and conditions of employment are

important to our analysis.          We do note that restrictions on the

ability to fire have been upheld against Machinists claims as

permissible labor standards by another circuit. See St. Thomas-St.

John Hotel & Tourism Ass'n v. Virgin Islands, 218 F.3d 232, 246 (3d

Cir.    2000)   (holding   Virgin    Islands   law   that   restricted   the

permissible grounds on which employees could be discharged is not

pre-empted).17 And it is not uncommon for states to limit discharge

of employees to preclude retaliation for protected activities as a

ground for discharge.18       One jurisdiction, at least, requires

payment of certain sums to employees discharged without good cause.

See Soto v. State Indus. Prods., Inc., 642 F.3d 67, 74-75 (1st Cir.

2011) (explaining that Puerto Rico's Law 80 requires that an

employer pay severance pay to every employee who is "discharged

. . . without just cause").




       17
        Barnes v. Stone Container Corp., 942 F.2d 689 (9th Cir.
1991), is not to the contrary. There, the court did not address
whether a Montana law imposing a good cause standard for discharge
was itself pre-empted; instead, it assessed whether an employee
could bring an implied contract action based on the statute during
an impasse in employer-union bargaining, and held that the
employee's "action [was] preempted by the NLRA." Id. at 690, 693.
       18
        At least one circuit has upheld such a law against a
Machinists pre-emption claim. See Peabody Galion v. A.V. Dollar,
666 F.2d 1309, 1316 (10th Cir. 1981) (holding Oklahoma law that
prohibits discharge of an employee in retaliation for the employee
filing a workers' compensation claim is not pre-empted).

                                     -31-
B.          Garmon Pre-emption

            Under the Garmon pre-emption doctrine, "States may not

regulate activity that the NLRA protects, prohibits, or arguably

protects or prohibits."    Gould, 475 U.S. at 286.19

            Garmon "prevents States not only from setting forth

standards of conduct inconsistent with the substantive requirements

of the NLRA, but also from providing their own regulatory or

judicial remedies for conduct prohibited or arguably prohibited by

the Act."    Id.   When assessing Garmon pre-emption, "[f]irst, we

determine whether the conduct that the state seeks to regulate or

to make the basis of liability is actually or arguably protected or

prohibited by the NLRA."         Local 926, Int'l Union of Operating

Eng'rs v. Jones, 460 U.S. 669, 676 (1983).        "[I]f the conduct at

issue is arguably prohibited or protected . . . . state law and

procedures are ordinarily pre-empted."      Id.

            Still, there are exceptions where pre-emption will not be

found.    Garmon "does not pre-empt 'all local regulation that

touches or concerns in any way the complex interrelationships

between employees, employers, and unions; obviously much of this is



     19
        The Supreme Court has explained that the term "protected"
in the NLRA pre-emption context can refer to two "quite different
concepts" -- conduct that cannot be regulated because it is
"covered by" the NLRA, which is the focus of Garmon pre-emption,
and "conduct which a State may not prohibit even though it is not
covered by" the NLRA, which is the focus of Machinists pre-emption.
Sears, Roebuck & Co. v. San Diego Cnty. Dist. Council of
Carpenters, 436 U.S. 180, 199 n.30 (1978).

                                   -32-
left to the States.'"      Int'l Longshoremen's Ass'n v. Davis, 476

U.S. 380, 392 (1986) (quoting Amalgamated Ass'n of Street, Elec.

Ry. & Motor Coach Emps. v. Lockridge, 403 U.S. 274, 289 (1971)).

Thus, when a matter is "a merely peripheral concern of the [NLRA],"

or "where the regulated conduct touched interests so deeply rooted

in   local   feeling   and responsibility   that,   in   the   absence   of

compelling    congressional   direction,    we   could   not   infer   that

congress had deprived the States of the power to act," the state

law is not pre-empted.      Id. (quoting Garmon, 359 U.S. at 243-44)

(internal quotation marks omitted).

             The burden is on the "party asserting pre-emption" to

make an "affirmative showing that the activity is arguably subject

to the Act."      Id. at 399.    Plaintiffs raise several arguments

invoking Garmon pre-emption, but ultimately fail to make such an

"affirmative showing."20

             1.    Regulating Mandatory Subjects of Bargaining

             Plaintiffs' primary contention regarding Garmon pre-

emption is that, because the Ordinance regulates a mandatory

subject of bargaining, it interferes with conduct protected by the


      20
        The district court did not evaluate the Garmon claims, but
this does not affect our ability to assess them on appeal.
"Although the district court did not address this issue, we are
free to resolve questions of law in the first instance." Robidoux
v. Muholland, 642 F.3d 20, 23 n.2 (1st Cir. 2011) (citing Gately v.
Massachusetts, 2 F.3d 1221, 1228 n.4 (1st Cir. 1993)).          The
pre-emption question is "predominantly legal" in nature. Pac. Gas
& Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461
U.S. 190, 201 (1983).

                                  -33-
NLRA and is thus pre-empted.          Plaintiffs assert that because the

obligation to hire, the right of an employer to subcontract, and

the   existence    of   a   good   cause     termination   standard    are   all

mandatory subjects of bargaining, a state law that impacts these

terms is invalid under Garmon.

           Plaintiffs' argument misses the mark.                As an initial

matter, it is clear that states can, and do, regulate numerous

subjects that the NLRB has held to be mandatory subjects of

bargaining.       The   NLRA   itself      requires   bargaining   between   an

employer and the union representative over "wages, hours, and other

terms and conditions of employment," 29 U.S.C. § 158(d), rendering

them mandatory subjects of bargaining, First Nat'l Maint. Corp. v.

NLRB, 452 U.S. 666, 674 (1981) (explaining that wages and hours are

mandatory subjects of bargaining).              Nevertheless, there is no

question that states can set minimum wage laws and impose maximum

working hour limitations.           See Metro. Life, 471 U.S. at 755-57

(explaining   that      minimum    state    labor   standards   that   "neither

encourage nor discourage the collective-bargaining processes that

are the subject of the NLRA" are not pre-empted).

           Moreover, the Supreme Court has rejected this type of

argument in the context of severance pay.                  It is clear that

severance pay is a subject of mandatory bargaining.                See, e.g.,

First Nat'l, 452 U.S. at 677 n.15 (explaining that "[t]here is no

doubt that" employers are "under a duty to bargain about the


                                      -34-
results or effects of its decision" to shut down a plant, including

severance pay); Yorke v. NLRB, 709 F.2d 1138, 1143 (7th Cir. 1983)

(explaining that there is a "duty to bargain over the effects of a

decision to terminate operations," including "severance pay");

Borden, Inc., 279 N.L.R.B. 396, 396, 398 (1986) (holding that the

employer was required to "bargain over the severance pay issue");

NLRB General Counsel Memo, No. 25-CA-15237, 1983 NLRB GCM LEXIS 52,

at *4 (June 30, 1983) ("It is well settled that severance pay,

insurance, and pension benefits for current employees are mandatory

subjects of bargaining . . . .").          Nevertheless, the Supreme Court

found "no support" for a Garmon pre-emption argument with respect

to a Maine statute mandating severance pay for certain plant

closings.    Fort Halifax, 482 U.S. at 22 n.16.

            Imposing a minimum standard for a subject that is a

mandatory subject of bargaining is not the same as regulating

"conduct subject to regulation by the [NLRB]," which is the inquiry

relevant to Garmon pre-emption.        Id.; see also Brown, 554 U.S. at

69 ("In NLRA pre-emption cases, 'judicial concern has necessarily

focused on the nature of the activities which the States have

sought to    regulate,    rather    than    on   the   method   of regulation

adopted.'" (quoting Golden State Transit, 475 U.S. at 614 n.5)).

            Here,   the   conduct    the    Ordinance     regulates   is   the

retention and firing of employees when there is a change in

employer identity. The only regulation of an employer's ability to


                                    -35-
hire and fire in the NLRA is a provision forbidding the employer

from discriminating "in regard to hire or tenure of employment

.   .    .   to   encourage    or    discourage   membership      in    any   labor

organization," 29 U.S.C. § 158(a)(3), a provision not implicated by

the Ordinance.21      Plaintiffs point to no other authority expanding

or limiting employers' power to hire or fire under the NLRA.                    Even

though the word "arguably" in the Garmon assessment is broad, it is

"not     without    substance,"      "is   not   satisfied   by   a     conclusory

assertion of pre-emption," and "the party claiming pre-emption is

required to demonstrate that his case is one that the Board could

legally decide in his favor."           Davis, 476 U.S. at 394-95.         No such

demonstration was made in this case.

              Because the NLRA does not itself protect an employer's

ability to hire or fire, and indeed regulates it, such conduct is

not     arguably   protected    or    arguably    prohibited,     and    thus    the

Ordinance is not pre-empted under Garmon for altering those aspects



        21
        Plaintiffs cite two cases holding that state laws
compelling new employers to adopt the collective bargaining
agreements of their predecessors are pre-empted. See Commonwealth
Edison Co. v. Int'l Bhd. of Elec. Workers, Local Union No. 15, 961
F. Supp. 1169 (N.D. Ill. 1997); United Steelworkers v. St.
Gabriel's Hosp., 871 F. Supp. 335 (D. Minn. 1994). These cases are
readily distinguishable, as they addressed conduct protected by the
NLRA.   In those cases, the states were attempting to compel
agreement to a collective bargaining agreement, directly violating
the NLRA's directive that the obligation to bargain in good faith
"does not compel either party to agree to a proposal." 29 U.S.C.
§ 158(d); see also Golden State Transit, 475 U.S. at 616
(explaining that the NLRA "does not require [the employer and the
union] to reach agreement").

                                        -36-
of the employment relationship.      See Wash. Serv. Contractors, 54

F.3d at 816 ("The 'terms' of the [ordinance] do not 'encompass' any

matter even arguably regulated by § 8 of the NLRA."); Cal. Grocers

Ass'n, 254 P.3d at 1030 ("On the subject of employee hiring and

firing, the text of the NLRA is, with one notable exception,

resoundingly silent.").

          Our decision here accords with our decision in Beckwith

v. United Parcel Service, Inc., 889 F.2d 344 (1st Cir. 1989), where

we rejected a Garmon challenge to a Maine law prohibiting employers

from satisfying claims against employees through payroll deductions

required as a condition of employment because "the 'conduct' that

Maine seeks to regulate -- execution of agreements providing for

payroll deductions as a condition of employment -- is not subject

to the regulatory jurisdiction of the NLRB."      Id. at 347.

          2.   Other Garmon Claims

          Plaintiffs raise several other claims that the Ordinance

runs afoul of the Garmon doctrine; none of these arguments suffices

to render the Ordinance pre-empted.

          First,   plaintiffs   make   a   bald   assertion   that   the

Ordinance somehow restricts the ability of employees to choose

their bargaining representative, in violation of Section 7 of the

NLRA. Plaintiffs, however, do not explain how the Ordinance, which




                                -37-
by its terms has no such effect, imposes such a restriction.22 This

argument is waived. Even if not waived, this "conclusory assertion

of pre-emption" does not suffice.            Davis, 476 U.S. at 394.            Other

similar concerns, such as the Ordinance's impact on the Section 7

rights of non-union workplace employees, may also exist, but are

also not raised by plaintiffs.        In any event, at this juncture such

concerns are hypothetical; such pre-emption claims can be made by

appropriate plaintiffs if and when they materialize.

          Second,        plaintiffs      contend      that        the     Ordinance

functionally effects a three-month suspension of federal labor law,

reasoning that, as to new employers in unionized hotels, if the

successorship determination is not made immediately, it is unclear

what the status of the employee's bargaining representative is.23

          Plaintiffs        are     correct    in     noting       that    if    the

successorship determination is made only after the three-month

period elapses,     it    is   unclear   whether      the   new    employer will

ultimately have to bargain with the predecessor union's bargaining

representative.          However,    this     issue    is    not    uncommon       in



     22
        Plaintiffs make no argument about and do not attempt to
assert the interests of non-unionized employees who do not wish to
be unionized.
     23
        Plaintiffs also mention that the Ordinance makes unclear
what happens if a representation petition is filed with the NLRB
during the three-month period. This argument contains no analysis
and is waived. United States v. De Jesús-Viera, No. 10-1365, 2011
WL 3688997, at *7 n.4 (1st Cir. Aug. 24, 2011) (arguments raised
"in a cursory fashion" are waived).

                                      -38-
successorship cases and not a basis for pre-emption. In Fall River

Dyeing, the Court held that, even when an employer is found to be

a successor, the duty to bargain with the bargaining representative

of   the     employees   only   attaches   when    "a   substantial    and

representative complement" of the employees has been hired, and the

union has made a demand for bargaining.           482 U.S at 47, 52.    In

addition, it is far from clear the NLRB would impose a duty to

bargain during the three-month period, for the reasons we gave

earlier.24

             Third, plaintiffs argue that the Ordinance's attempt to

avoid pre-emption through its preservation of rights section, which

provides that "[n]o provision of this Ordinance shall be construed

to impair, prohibit, or provide for any right of recovery for, that

lawful exercise of employees' or employers' right to engage in

strike or lockout," Providence, R.I., Code § 2-18.5(d)(1), itself

creates a conflict with the NLRA, as it would involve state court

interpretation of the scope of those federally protected rights.

Plaintiffs do not explain how the Ordinance itself would interfere



     24
        It is true that "[a]s a general rule, the relevant
measuring day to determine if the Company employed a majority of
union members is the initial date it began operating," with the
exception of instances "when an employer starts with a few
employees and requires a startup period." Vt. Foundry Co., 292
N.L.R.B. 1003, 1009 (1989). However, the NLRB has "recognized that
a successor's obligation to recognize and bargain with an incumbent
will vary with the circumstances of each case," and that "special
circumstances"   might "warrant[] the      postponement    of  that
obligation." Sahara Las Vegas Corp., 284 N.L.R.B. 337, 343 (1987).

                                   -39-
with the NLRA rights of lockout or strike.            We do not see how a

provision designed to avoid state law interference with federally

protected rights would, of itself, give rise to pre-emption.

              Fourth, plaintiffs argue that because the remedies for

violations     of    the   Ordinance   --   specifically,    backpay,   treble

damages, and attorneys' fees -- are greater than those provided by

the   NLRA,    the    Ordinance   is    pre-empted.     It    is   true   that

"supplemental sanction[s]" imposed by states on conduct arguably

protected or prohibited by the NLRA are impermissible and are thus

pre-empted.      See Gould, 475 U.S. at 289 (supplemental sanctions

problem arises when "two separate remedies are brought to bear on

the same activity" (emphasis added) (quoting Garner v. Teamsters,

346 U.S. 485, 498-99 (1953)) (internal quotation marks omitted)).

However, as discussed above, plaintiffs have not demonstrated that

the Ordinance bears on arguably protected or prohibited conducted

under the NLRA.       Thus the remedies the Ordinance adopts do not, of

themselves, render it pre-empted, nor are the remedies extreme.25




      25
        There are instances where sanctions imposed "for
noncompliance with an otherwise valid state regulation" may be pre-
empted; for instance, the issuance of injunctions preventing a
union from functioning. Brown v. Hotel & Rest. Emps., 468 U.S.
491, 510 (1984).    The forms of relief the Ordinance provides,
however, do not raise this concern in this suit. And this case is
unlike Chamber of Commerce v. Brown, 554 U.S. 60 (2008), where
there were substantial penalties for failure to comply with
bookkeeping requirements. Id. at 72.

                                       -40-
C.        Plaintiffs' Remaining Claims

          Plaintiffs raise two final challenges to the validity of

the Ordinance: that it violates the Equal Protection Clause and the

Contract Clause.   These are not serious challenges.

          The Ordinance does not classify according to suspect

lines or infringe on fundamental rights, and thus "must be upheld

against equal protection challenge if there is any reasonably

conceivable state of facts that could provide a rational basis for

the classification."    FCC v. Beach Commc'ns, Inc., 508 U.S. 307,

313 (1993).   Plaintiffs bear the burden of demonstrating that the

Ordinance is invalid.   Bd. of Trs. of the Univ. of Ala. v. Garrett,

531 U.S. 356, 367 (2001).

          Plaintiffs' argument is that the Ordinance impermissibly

distinguishes between hotels and other tourism-related industries,

and between hotels within and outside of Providence.      Plausible

justifications, however, exist for both of these distinctions. The

preamble to the Ordinance itself explains the City's concern with

hotels, as opposed to other parts of the tourism industry, and the

parties stipulated that Providence accounts for a substantial share

(28.4 percent) of the tourism spending in the state. Moreover, the

City's legislative body is entitled to "leeway to approach a

perceived problem incrementally." Beach Commc'ns, 508 U.S. at 316.

As a result, plaintiffs have not met their burden of demonstrating

that the Ordinance is invalid.   See Cal. Grocers Ass'n, 254 P.3d at


                                 -41-
1038-39     (rejecting       equal    protection       challenge    to     similar

ordinance).

            To assess whether there is a violation of the Contract

Clause, "we first ask whether the change in state law has 'operated

as a substantial impairment of a contractual relationship.'"                 Gen.

Motors Corp. v. Romein, 503 U.S. 181, 186 (1992) (quoting Allied

Structural Steel Co. v. Spannaus, 438 U.S. 234, 244 (1978)). "This

inquiry has three components: whether there is a contractual

relationship, whether a change in law impairs that contractual

relationship, and whether that impairment is substantial." Id. If

all three components are satisfied, the question is whether "the

impairment is nonetheless justified as 'reasonable and necessary to

serve an important public purpose.'"             Parella v. Ret. Bd. of the

R.I. Emps. Ret. Sys., 173 F.3d 46, 59 (1st Cir. 1999) (quoting U.S.

Trust Co. v. New Jersey, 431 U.S. 1, 25 (1977)).

            Plaintiffs point to the collective bargaining agreement

between the Westin Providence and Local 217-Unite Here as being

impaired by the Ordinance.             The only provision they claim is

impaired by the Ordinance regards subcontracting and states: "the

Employer    will   not   subcontract       out   any    work    currently   being

performed    by    members     of    the   bargaining    unit    without    first

negotiating said subcontract with the Union." If such negotiations

fail, the parties are to "bargain as to the effects of the

decision."


                                       -42-
            Plaintiffs do not explain how this provision is impaired,

much less substantially impaired, by the Ordinance. They are still

capable of subcontracting out work under the Ordinance, although

the subcontractor might be obligated to hire the previous employees

for   a   three-month   period.   The    terms   of   the   subcontracting

provision remain fully operative under the Ordinance.           Plaintiffs

do not explain how the Ordinance "derogate[s] from substantial

contractual rights," Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S.

398, 431 (1934), and their Contract Clause claim thus fails.

                                  IV.

            Whether or not this ordinance will in fact protect and

enhance tourism in Providence, its stated purpose, is far from

clear.    The City has leeway to experiment so long as it does not

run afoul of federal labor policy and pre-emption under the United

States Constitution.      At this stage we cannot say it has.         See

Livadas, 512 U.S. at 120 ("In labor pre-emption cases, as in others

under the Supremacy Clause, our office is not to pass judgment on

the reasonableness of state policy . . . .       It is instead to decide

if a state rule conflicts with or otherwise 'stands as an obstacle

to the accomplishment and execution of the full purposes and

objectives' of the federal law." (quoting Brown v. Hotel & Rest.

Emps., 468 U.S. 491, 501 (1984))).




                                  -43-
          We affirm the entry of judgment for the City and award

costs to the City.

                     -Concurring Opinion Follows-




                                 -44-
               STAHL, Circuit Judge, concurring.         In my opinion, this

Ordinance will do little to accomplish its stated purpose of

protecting and promoting tourism in the City of Providence.                       In

fact,      I   fear   that   the   Ordinance,    which   interferes        with   an

employer's ability to make hiring and firing decisions in the

critical first three months of its operations, will negatively

affect Providence's tourism industry by deterring companies from

doing business in the City.26             But our task in this case, as the

majority emphasizes at the conclusion of its opinion, is not to

pass judgment on the reasonableness of the Ordinance as a policy.

See Livadas v. Bradshaw, 512 U.S. 107, 120 (1994).             Rather, we must

decide whether the Ordinance conflicts with federal law.                    Id.   I

join the majority's opinion because Plaintiffs have not convinced

me that the Ordinance is preempted by the NLRA under existing case

law. Because I would take a different path to reach the majority's

conclusion, however, I write separately.

               I begin by noting that Plaintiffs' claims under the

Garmon preemption doctrine, the Contracts Clause, and the Equal

Protection      Clause    are   largely without     merit, and       I    join the

majority's opinion as to those claims.            The fundamental issue here

is   whether      the    Ordinance   is    preempted   under   the       Machinists



      26
        Indeed, Plaintiffs have alleged that the Ordinance has
already constrained their efforts "to attract vendors who may be
able to provide hotel and restaurant services in a more efficient
and cost-effective manner."

                                       -45-
preemption doctrine.         See Lodge 76, Int'l Ass'n of Machinists v.

Wis. Emp. Relations Comm'n, 427 U.S. 132 (1976).

              The Machinists doctrine has come to apply when a court

can discern, from the text or structure of the NLRA, that Congress

intended to leave a subject free from state or local regulation.

Cal. Grocers Ass'n v. City of Los Angeles, 254 P.3d 1019, 1027

(Cal. 2011).       In practice, the cases in which the Supreme Court has

found Machinists preemption thus far have involved states or

localities attempting to actively intervene in the union organizing

or collective bargaining processes.               See Machinists, 427 U.S. 132

(finding preempted a state's act of enjoining union members from

refusing to work overtime); Golden State Transit Corp. v. City of

Los   Angeles,      475   U.S.   608     (1986)    (finding     preempted    a    city

council's conditioning of a franchise renewal on the resolution of

an ongoing labor dispute); Chamber of Commerce v. Brown, 554 U.S.

60, 68 (2008) (finding preempted a state's attempt to regulate

speech about union organizing, despite an "explicit direction from

Congress      to     leave     noncoercive        speech   unregulated").

              On the other hand, there are two cases of relevance here

in    which   the    Supreme     Court   has    declined   to    find   Machinists

preemption. Both cases involved state or local laws that regulated

particular terms of the employment relationship itself; the Court

found    these      regulations     to     be     permissible     "minimum       labor

standards."        See Metro. Life Ins. Co. v. Massachusetts, 471 U.S.


                                         -46-
724 (1985) (upholding a Massachusetts law requiring that employee

health care plans include certain minimum mental health benefits);

Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987) (upholding a

Maine law guaranteeing employees severance payments in the event of

a plant closing).        Reasoning that the goal of the NLRA is to

regulate the process by which parties negotiate an employment

agreement and not the substance of the agreement itself, Metro.

Life, 471 U.S. at 753, the Court has sanctioned state and local

regulations    that    impose   "minimal     substantive   requirements   on

contract terms," id. at 754.          Such minimum labor standards are a

lawful exercise of a state's authority "to regulate the employment

relationship to protect workers within the State."              DeCanas v.

Bica, 424 U.S. 351, 356 (1976).

          Against that legal backdrop, Plaintiffs have alleged that

the Ordinance is preempted under Machinists because it interferes

with the goals of the NLRA by: (1) making it more likely that a new

employer will be deemed a successor; (2) enhancing the bargaining

power of unions by giving employees benefits for which they would

otherwise have had to bargain; and (3) limiting an employer's right

to hire and fire.      I will address each argument in turn.

          1.          Successorship

          First, Plaintiffs argue that the Ordinance impermissibly

increases the chances that a new employer inheriting a unionized

workforce under the Ordinance will be deemed a "successor" and thus


                                      -47-
forced to recognize and bargain with the union representing its

predecessor's employees.       See Fall River Dyeing & Finishing Corp.

v. NLRB, 482 U.S. 27 (1987).          I believe that the majority has

properly analyzed the successorship issue and have little to add on

this point.      Under the reasoning of Fall River Dyeing and M&M

Parkside Towers LLC, No. 29-CA-27720, 2007 WL 313429 (N.L.R.B. Jan.

30,   2007)     (ALJ    opinion),   the    NLRB    should     not    find   that

successorship attaches to an employer affected by the Ordinance who

takes over a unionized workforce.         Should the NLRB find otherwise,

Defendants conceded at oral argument that the Ordinance would

likely be preempted, and the employer would have a cause of action

in state or federal court, which I believe would be successful.

Plaintiffs' second and third arguments, however, seem to me to

present closer questions.

           2.          Bargaining Power

           Plaintiffs'       next   argument      is   that    the    Ordinance

interferes with the collective bargaining process by skewing the

balance of power in favor of employees.           Specifically, Plaintiffs

argue that the Ordinance grants retained employees a right for

which they would otherwise have had to bargain: three months of

good cause employment.27         It does seem indisputable that many


      27
        Plaintiffs also argue that the Ordinance disrupts the
balance of power between employer and employees by making it more
likely that a new employer will be deemed a successor and by
constraining the new employer's ability to use the economic weapon
of lockout.    Because I do not believe that a new employer

                                    -48-
employees will receive a benefit from the Ordinance for which they

would otherwise have had to bargain. That alone, however, does not

suffice to support a claim of preemption, "for there 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."      Fort   Halifax,      482   U.S.    at   21-22     (citation and

internal quotation marks omitted).              The question is therefore

whether, as Plaintiffs claim, the Ordinance has "entered into the

substantive aspects of the bargaining process to an extent Congress

has not countenanced."      Machinists, 427 U.S. at 149 (citation and

internal quotation marks omitted).

           This case is certainly distinguishable from Machinists,

Golden   State,   and    Brown,   in    which       the   Supreme    Court   found

preemption because a state or locality had directly intervened in

an ongoing labor dispute or attempted to regulate speech about

union organizing.        Those strike me as clear interferences with

"substantive aspects of the bargaining process."                  Machinists, 427

U.S. at 149.   I therefore believe that this issue turns on whether

the Ordinance's more subtle effects on the bargaining process make

it sufficiently akin to the regulations upheld in Metropolitan Life

and Fort Halifax that it, too, can withstand preemption.


inheriting a unionized workforce under the Ordinance will be deemed
a successor, I will not address that argument. Regarding the new
employer's ability to engage in a lockout, the Ordinance expressly
states that both employers and employees retain their rights to
lockout and strike, respectively.

                                    -49-
          Because the NLRA is primarily concerned with establishing

an equitable bargaining process and not with the substantive terms

of the resulting bargain, Metro. Life, 471 U.S. at 753, states have

some latitude to regulate the employment relationship pursuant to

their police powers, id. at 756.       The Supreme Court found in

Metropolitan Life that the NLRA was meant to equalize the balance

of bargaining power between employers and employees in an effort to

increase wage rates and decrease the gap between wages and profits.

Id. at 753-54.   As the Court noted:

          The evil Congress was addressing thus was
          entirely unrelated to local or federal
          regulation establishing minimum terms of
          employment. Neither inequality of bargaining
          power nor the resultant depressed wage rates
          were thought to result from the choice between
          having terms of employment set by public law
          or having them set by private agreement.

Id. at 754.      Metropolitan Life stands for the principle that

"[w]hen a state law establishes a minimal employment standard not

inconsistent with the general legislative goals of the NLRA, it

conflicts with none of the purposes of the Act."    Id. at 757.

          Unfortunately, the Supreme Court has not provided much

guidance as to what distinguishes a minimum labor standard from an

unconstitutional regulation of the collective bargaining or self-

organization processes.    The Court has simply suggested that a

minimum labor standard "provides protections to individual union

and nonunion workers alike, and thus 'neither encourage[s] nor

discourage[s] the collective-bargaining processes that are the

                               -50-
subject of the NLRA.'"      Fort Halifax, 482 U.S. at 20-21 (quoting

Metro. Life, 471 U.S. at 755).

            The Ordinance's protections apply equally to unionized

and non-unionized workers.     That neutrality does seem essential to

the Ordinance's validity. Cal. Grocers, 254 P.3d at 1031 n.7. The

Ordinance does not tip the balance in favor of one category of

workers, or force "employees to choose between exercising their

right to enter a collective bargaining agreement and having their

state-granted employment rights enforced," either of which might

constitute an unlawful intrusion into the collective bargaining

process.    Id.

            Nor have Plaintiffs convinced me that the Ordinance

otherwise   encourages or    discourages   the   collective   bargaining

process in a way that Congress did not countenance.           Certainly,

when a state enacts a minimum labor standard, the state is at least

marginally discouraging collective bargaining by incentivizing

employers and employees to lobby the legislature, rather than

negotiate with each other, to achieve their goals.      But Machinists

does not seem to foreclose such a marginal impact on collective

bargaining. In Metropolitan Life, the Massachusetts law completely

prevented any bargaining on the subject of minimum mental health

benefits, but the Court found that mandated-benefit laws are

"minimum standards independent of the collective-bargaining process

that devolve on employees as individual workers, not as members of


                                 -51-
a collective organization."    Id. at 755 (citation and internal

quotation marks omitted).   Similarly, here, the Ordinance provides

a benefit to workers in their individual capacities and not based

on their membership in a union.        Furthermore, as a practical

matter, there would be no point in bargaining for the Ordinance's

specific protections, because those protections are temporary in

nature, and a collective bargaining agreement cannot bind a new

employer without the new employer's assent. Howard Johnson Co. v.

Detroit Local Joint Exec. Bd., 417 U.S. 249, 261 (1974).

          The Ordinance does seem, at first glance, to encourage

the collective bargaining process by providing unions with a three-

month period in which to quickly organize retained workers, who

will have an incentive to unionize because they could be about to

lose their jobs.   Because Plaintiffs did not make this argument,

however, it is waived.   United States v. Zannino, 895 F.2d 1, 17

(1st Cir. 1990).    Furthermore, even if Plaintiffs had made the

argument, I do not think it would succeed.        To avoid having

retained employees vote to unionize during the three-month period,

I believe an employer need only give the employees a firm end date.

Temporary employees whose departure date is definite are ineligible

to vote in representation elections.      See NLRB v. New England

Lithographic Co., 589 F.2d 29, 32-34 (1st Cir. 1978).    This "date

certain" test is meant to promote the NLRB policy of including in

representation elections only those employees who are "sufficiently


                                -52-
concerned with the terms and conditions of employment" to warrant

their participation.      Id. at 34 (citation and internal quotation

marks omitted).28      Thus, even if the Ordinance were to encourage

collective bargaining in theory, I do not believe it will do so in

practice.

            Of course, the Ordinance is distinguishable from the law

upheld in Metropolitan Life, which was intended to provide mental

health treatment to less wealthy residents of the Commonwealth and

which strikes me as falling more squarely within the state's power

to promote public health and safety.             See Metro. Life, 471 U.S. at

756, 758.    And while the majority is correct that Plaintiffs have

not   helpfully     distinguished   the     Ordinance    from   the   mandatory

severance law upheld in Fort Halifax, I can imagine some crucial

distinctions.       For example, a mandatory severance law does not

expose the employer to the possibility of having its workers

unionize,    file    grievances,    or    file    employment    discrimination

claims.    Nor does a mandatory severance law entail the same tax or

insurance liabilities for the employer.

            Nonetheless, in the final accounting, I believe that the

Ordinance has at most a minimal impact on the collective bargaining

process and is thus more comparable to the regulations upheld in



      28
       The NLRB General Counsel in M&M Parkside took the position
that incumbent employees retained during a 90-day retention period
have "probationary or contingent" status. 2007 WL 313429.


                                     -53-
Metropolitan Life and Fort Halifax than those struck down in

Machinists, Golden State, and Brown.              I therefore hesitantly

conclude that the basic rule of Metropolitan Life applies here: a

state or locality can regulate certain terms of the employment

relationship, as long as the regulation affects union and non-union

workers equally and does not substantively interfere with the self-

organization or collective bargaining processes.           471 U.S. at 751-

57.

          3.        Hiring and Firing

          A      minimum    labor   standard    must    not,   however,    be

incompatible with the general goals of the NLRA.           Id. at 757.    The

Supreme Court found in Machinists that Congress left certain

conduct unregulated by the NLRA because it was meant "to be

controlled by the free play of economic forces."            427 U.S. at 140

(citation and internal quotation marks omitted). Plaintiffs' third

argument is that an employer's right to make hiring and firing

decisions is part of that free zone.             The majority repeatedly

describes the Ordinance's impact on an employer's hiring ability as

"limited."     I respectfully disagree.          The Ordinance imposes a

workforce upon affected employers during the critical first three

months of their business operations.          Though an employer need only

retain as many employees as are "necessary for its full operation,"

the   employer    must     fill   each   of   those    positions   with   the

predecessor's employees, whom the new employer played no role in


                                     -54-
selecting.   After three months, should the new employer choose not

to retain the predecessor's workers, it must replace those workers

with other employees and train the new employees, which will

undoubtedly cause upheaval.

           The Ordinance's impact on an employer's ability to fire

retained employees is similarly significant.          Though an employer

can discharge retained employees during the three-month period, it

can only do so for good cause, which functions as a very real

restraint.   The majority dismisses this impact as speculative and

limited, but it seems to me unquestionable that certain employers

who would otherwise have hired employees under an at-will agreement

will, under the Ordinance, inherit a workforce that can only be

terminated for cause.      The three-month duration of the retention

period will provide that employer with little comfort, as the

employer   will    face   potential   challenges     to   any   termination

decisions it makes during the three-month period and will have to

justify those decisions under the heightened good-cause standard.

           Having recognized that the Ordinance's impact on an

employer's ability to hire and fire is significant, however, I do

agree with the majority that the NLRA does not seem to prohibit

that impact.      In support of their argument, Plaintiffs rely on

carefully-selected    language   from    NLRB   v.   Burns   International

Security Services, 406 U.S. 272 (1972), Howard Johnson, and Fall




                                  -55-
River Dyeing.29   In all three of those cases, however, the Supreme

Court was addressing the need for a new employer to consciously

take on successorship obligations, which we have determined are not

at issue here.    None of those cases purported to address "whether

a successor's hiring choices might be regulated or restricted by

sources other than an existing collective bargaining agreement or

federal common law."     Cal. Grocers, 254 P.3d at 1033.    Burns,

Howard Johnson, and Fall River Dyeing establish that the NLRA does

not require an employer to hire its predecessor's employees; those

cases do not grant employers an unfettered right to hire and fire,

immune from state or local regulation.     Thus, while Plaintiffs'

argument is not without persuasive value,30 I do not believe it is

supported by existing jurisprudence.




     29
       See Burns, 406 U.S. at 280 n.5 ("The Board has never held
that the National Labor Relations Act itself requires that an
employer who submits the winning bid for a service contract or who
purchases the assets of a business be obligated to hire all of the
employees of the predecessor though it is possible that such an
obligation might be assumed by the employer."); Howard Johnson, 417
U.S. at 262 ("Clearly, Burns establishes that Howard Johnson had
the right not to hire any of the [predecessor's] employees, if it
so desired."); Fall River Dyeing, 482 U.S. at 40 ("[T]he successor
is under no obligation to hire the employees of its predecessor,
subject, of course, to the restriction that it not discriminate
against union employees in its hiring.")
     30
        Indeed, it is the same argument made by the powerful
dissenting opinions in Washington Service Contractors Coalition v.
District of Columbia, 54 F.3d 811, 818-20 (D.C. Cir. 1995)
(Sentelle, J., dissenting), and California Grocers, 254 P.3d at
1040-53 (Grimes, J., dissenting).

                                -56-
          There is a general presumption against preemption, which

is particularly strong here.     See Fort Halifax, 482 U.S. at 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.")   In that context, and considering the

employee-focused nature of the NLRA, see NLRB v. Jones & Laughlin

Steel Corp., 301 U.S. 1, 46 (1937), I do not believe we can infer

that, where the successorship doctrine does not apply, Congress

intended to leave the area of hiring and firing to be fully

controlled by the free play of economic forces.

          While I ultimately conclude that the Ordinance is a

permissible exercise of the City's power to regulate the employment

relationship and protect its workers, I find this to be a very

close case.   The Ordinance is not entirely on all fours with any of

the regulations that the Supreme Court has upheld in its Machinists

decisions.    The case law gives us few clear rules to follow,

leaving preemption somewhat in the eye of the beholder.    Though I

must agree with the majority that this particular regulation does

not seem to be preempted by the Machinists doctrine under existing

precedent, I do hope the Supreme Court will provide some guidance

as to just how far a state or locality can go in the name of a

"minimum labor standard."




                                -57-
