good morning my name is michael strauss i'm here today representing the opponents carl curtis and arthur williams like to reserve two minutes from rebuttal please let your time may please the court the break the briefs in this case were lengthy i'm not going to recess rehash anything that's in the briefs rather i will discuss the developments in the cases the parties identified as being related under circuit rule twenty eight two point six and how they illustrate why the pla fs claims here are not granted by the alomari and its briefs erwin identified alaska airlines versus shirky eight four six f third ten eighty as being a case with similar issues about federal preemption issue in alaska airlines was whether the railway labor act which is treated similarly to the labor relations management act preempted a c b a covered employees claims under a state leave law the state leave law in question provided that if a a or an employer policy provided for paid leave then an employee he could use that leave to care for a sick child at the time that irwin designated the alaska airlines case as a related case a  this court had held that the employee's state law claim was preempted because the state law right and the c p a were in extra completely intertwined in august of this year the ninth circuit sitting on bank came to a different collusion two that say that those provisions can be superceded by the c p and those provisions of the labor code and we're talking about labor code sections five twelve five fourteen and related provision in ways order sixteen those are affirmative defenses to the extent that an employer proves that there is a valid collective bargaining agreement that meet certain criteria there is an exemption from overtime in section five fourteen  i'm not sure the issue is was addressed in in fran ish to the extent that alaska airlines is going to apply in this case in its primary holding the state statute to merely references the c b i is not itself  over time exemption yes we disagree that and it's i think it's lacking the problem with the c v a is that while backing up this claim is predicated on the fact that these employees are working on oil platforms t whether the employer could exclude sleep time from their hours of work while they were on call right because i thought the premise was at the employees were on call for the promise was that they they were on call but that and they need to respond to emergency that a moment's notice i mean it is they are working on oil platforms where it's very dangerous and they need to respond as quickly as they possibly can look out for there was a case about a month and a half ago called mcrae versus marriott hotel services are you familiar with this case i read it your honor yes it seems like that's actually a very good case for your position that deals with the sandals a minimum wage you know on the ninth circuit said that that was not preempted absolutely you want to be asking the other side about mcrae here in about four minutes you want to say something about that case here while you still have some time i don't have the time to time but i'd like to just say that there's a state law right minimum wage right that is a normally of a statutory right and i think that if you follow the reasoning mccrae and also the reasoning and alaska airlines you see that there's no way that the claims here are going to be exempted but let me ask you this or preempted i'm sorry what rate are you claiming your client should have been paid for the the twelve hours the rate that they should have well there's two claims there are alternative claims one is a minimum wage claim and one is an overtime claim so under the minimum wage claim what ray do you claiming they should have been paid for the twelve hours at least a minimum wage well but as i read your papers you weren't asking for the minimum wage you were saying multiply what their pay stubs show they got paid by the twelve hours and overtime claimed actually minimum wage thing doesn't involve any kind of want to cation is just their straight minimum wage but are you saying that they should have been paid for those twelve hours minimum wage statutory minimum wage yes or the or the greed upon them a wage yes well what do you mean agreed upon minimum wage well a minimum wage thing can be based on an agreed minimum or it can kind of dispute there's no dispute as to the rate in the in the in the c b i but the rates assume payment for the hours that are laid out in the c b i you're essentially asking for those rates to be applied to twelve additional hours yes and so that's less than the wage that's been bargained for and of the c b s correct correct now with regard to the overtime the second question is what rate well that rate would be you look at the paycheck stub what read are they getting paid per hour multiply that times time and a half that would be for overtime hours for double time i was to be multiplied by two this is want to highlight one thing because i'm running out of time here there's section five to fourteen exemption because of the overtime to the extent there is any kind of preemption or that exemption applied it would only affect the overtime claim the minimum wage claim there is no labor cost section that says you can contract around the minimum wage so the minimum wage when it has to survive even if the overtime claim was preempted or exempted from military mean the court's attention to the latest version of section five fourteen which only gives the exemption to certain categories of employees and they're not involved here reserve the rest for of all thank you  good morning your honour's may please the court learning from holland i represent irwin industries in this matter the district court's order of dismissal on preemption grounds was correct it applied the correct legal standards it looked at that plaintiff's claims in the plaintiff's dispute the reading classes sorry to determine whether preemption should apply it went through the two step burnside analysis and concluded based upon plaintiff's initial dispute that the collective bargaining agreements didn't apply because of the location of the platforms that is that they the platforms didn't reside in california so the out of position  a convenient concession your honor however if we do concede and i can pass over the dispute regarding whether their contracts apply but the contracts where they apply are not as critical to the mendiola claim or the so called  the contract set forth as your arms have already pointed out a variety of provisions that set forth work rules and laws of the shop is incorporated in the collective bargaining agreement through the supreme court cases in all astronomers in conrail and whether or not these individuals were under the employee's control is going to be determined by many of the provisions in the collective bargaining agreement versus say nonunion employees that might be covered by other rules employee handbook or other rules that are applied to the platforms california labor code and five twelve five fourteen incorporated in wage order sixteen which the civically applies to these employees which states that to the extent that the collective bargaining agreement meets the qualifications of that exemption those statutes don't that the matter of the claims are either preempted or they're dismissed one or the other if the court finds that the exemption applies then arguably the claims are simply dismissed if the court finds that and the exemption applies however there's a question regarding interpretation then preemption would kick in at that point to determine whether whether the exemption is met under the collective bargaining  demur stage in state court off the top of my head i don't have one to right to point to your honor you want to speak about macrae case i know you do your honor so mcrae's distinguishable in that the question there was whether the prevailing wage ordinance should apply to these workers and the court determined that it wasn't an issue of preemption we trigger the first prong of burns i'd those the right arise out of state law plaintiffs contended that the right to that ten dollars an hour wage arose out of state law the second question was if so does the contract require any interpretation the court merely looked saw that the workers were being paid less than the nine dollars less than the ten dollars an hour and determined that merely looking at the contract was enough now there was a question regarding whether the waiver was sufficient but the court was able to look at the waiver and determine from a legal standpoint that the waiver did not meet the  i'm not i'm more worried about the minimum wage law so the minimum wage claim is you know where we're calling a minimum wage claim however the illegal character of that claim is hours worked whether they were under the employer's control we can't determine whether they were  under the employer's control through the several factors set forth in morley and i believe is the case that set forth the seven factor test of are they required to live on the premises geographical restrictions the frequency of the calls including and not limited to whether this was for the benefit of the employee or the employer one there's no evidence other than the geographical location there's no evidence like in mendiola or the ambulance case which is escaping me right now which was a twenty four hour shift case that these individuals were required to live on that on that raid there is no evidence whatsoever to  question is whether that was a bargain for proposition it's quite possible that they bargained for that proposition to live on their rigs so they didn't have to go back and forth that might have meant more meaningful wages better benefits and a variety of other things tha counsel points out that there's no mention in the collective bargaining agreement there's no mention of platform there's no mention of helicopter there's no mention of how they get there no there's certainly no mention so if i can paraphrase what you're saying you're saying that to determine whether there really is a minimum wage claim here to see how many hours were they allowed to be or were they owed to be paid in a sense and the collective bargaining agreement in a sense determines that question i would say that in order to to determine whether there's a minimum wage claim we need to determine whether they were under control and on call in that second set of twelve hours and so there's a provision in the collective bargaining agreement special assignments that's a twelve hour shift we don't even know whether that provision was triggered plaintiff's counsel alleges that they work twelve hours but we don't know whether they were eight hour shift people ten hour shift or twelve hour shift individuals posing counsel so as a practical matter it is employees were on call they were on the oil rig do you agree collective bargaining agreement the common law of the shop and the parties practice because on the face of the agreement it doesn't necessarily say but we are at the twenty six stage so don't we have to take the allegations as true for now i don't know that we have the plaintiffs don't allege that they were required to be on the rig they they claim that they were not reasonably permitted to reasonably able to leave the rig so they're focusing on the geographic location of the platform and if that's enough that one factor to determine control then the other factors go away and even the ninth circuit as well as the california courts have said that all of the factors need to be considered in order to determine whether individuals are under the employer's control on call and working and there are a variety of other factors to consider in addition there are specific provisions in the collective bargaining agreement i was saying  that twelve hour shifts four times in excess of twelve hours premium pay is paid no where in the contract is premium pay defined there are provisions regarding call outs that is after your regularly scheduled time what is a call out mean to call i mean you get paid for the time that you're under the employer's control and that you're not under the employer's control when you're not called out these are provisions that need to be determined by an arbitrator their breath their scope and their application in order to get to the legal character and the inherent nature of the plaintiff's underlying minimum wage  as is the panel we do understand that it was decided six five but we wouldn't necessarily say that the analysis changes under under the alaska airlines case if you take into consider if you if you initially implement the requirement that there be an active dispute there's certainly no question that there's an active dispute regarding the overtime claim the meal period claim and specifically whether those hours were hours spent under the employer's control or not first off there's no dispute over any contract terms so looking to the c v a to the terminal level of control wouldn't require any interpretation there's no preemption when the claims invite the use of the c v a to prove a defense