if if i recall correctly invalidates the dispute was over whether they get to eat and in this one it's whether they get in on or off duty meal background part it's said that employees who worked on the first shift were not afforded lunch periods instead they worked through lunch and were paid at their normal hourly rate for their working lunch i just like the claim here is that these employees were entitled to off duty meal time that the that their employers violated state law by forcing them to eat during their shifts and in both cases the class employees claim penalties prescribed under state law not under the collective bargaining agreement you know what the employer has done in this case is to try to distinguish balance by raising a more refined argument than the one that was presented in valis without really presenting a different fact pattern in this case in one paper board argues in not that the collective bargaining agreement absolutely supersedes state law it argues that  has a defense that its collective bargaining agreement in its practice under that constitutes and adequate compliance with or exemption to or waiver of the off duty neal requirement that the plaint claiming now the employer is free to raise that as a defense in state court but a defense that entails issues grounded in federal contract law does not support federal removal jurisdiction and that's what the supr could simply refine the rhetoric of their argument to say that we have a collective bargaining agreement we assert that collective bargaining agreements may establish that on doing neil periods are necessary and therefore the court in the state courts cannot possibly consider the case it must be removed a federal court in the case must be dismissed on preemption grounds no that's wrong as a matter of fact federal removal jurisdiction but it's also f unfair because the approach the district court took in this case which in one is urging to you now is that the plaintiffs never have an opportunity to litigate the merits of the employer's defense in any course it might not be so unfair if you move the jurisdiction was more expansive and the federal district court allowed the plaintiffs to actually robot the defense that the employer was raising because what we would purport to show had we been allowed in either state or federal court is that objectively the nature of the work does not prevent employees in the paper board from being relieved of their duty and that in fact nothing in the employers practice under the collective bargaining agreement employer can raise a colorable argument which might entail the interpretation of the c v a they win regardless of whether or not that defense actually has factual merit or merit as a matter of federal contract interpretation finally i want to direct the court to the i do b c wage order which you know which is really at issue here it is certainly true that under extraordinary circumstances employers in california have the right to require workers not to take off duty neal periods but to eat during their shifts as they did in ivy hill and in this case but in order to satisfy that particular exemption the employer has to meet two different provisions first it m show that the nature of the work prevents an employee from being relieved of all duty and that is a criterion which does not depend on the say so of the union and the employer in the workplace  object of standard defines council what the court said is that this phrase in the collective bargaining agreement every reasonable effort to provide relief the company has to give them every reasonable effort to provide relief had to be interpreted in order to decide whether that they were getting a meal period or not whether they were whether eating lunch while they worked as in the was the way this workplace operated or whether that was just an emergency circumstance because to every reasonable effort to provide relief meant that ordinarily they they wouldn't why doesn't that require the kind of greeting of the collective bargaining agreement that under the potus means that we have to distinguish values because the touchstone of liability is not whether the collective bargaining agreement has been honored the touchstone of liability is whether an independent object of state law standard has been met so i would think you're right on i'm if california law says you have to entrepreneurial and the collective part bargaining agreement says we waive it it's not waiver ball and more if the union the employer say in so many words in the collective bargaining agreement we agree that the nature of the work prevents an employee from being relieved duty if the california court disagrees based on its own state law minimum standards the state law the state court's judgment is not barred by the parties agreement in the collective bargaining agreement what i would compare the sentence that the district court relied on to would be the innumerable collector provisions in the collective bargaining agreement that bore on the employer's defenses in cases like kramer vs consolidated prate ways or humble versus bowing to take just two examples in cramer the claim brought by the employees was that surveillance cameras in their locker rooms violated their reasonable expectation of privacy and it was undeniably true that to decide what's reasonable and what's not required to speak court to look at the context of the workplace and you had to know things like what were the security issues what were the what was the ingress and egress provided for under the collective bargaining agreement but the fact that a court has to consult and interpret the collective bargaining agreement to make decisions about the context of the workplace which bears on the employer's defense does not render the plaintiffs state law claim in to in effect a claim for breach of the collective bargaining agreement it may well be that the employer in this case has honored the more limited provisions of the collective bargaining agreement but in state court we're going to show the practice under that that under intractable selection doesn't reach the threshold required by state law in humble versus boeing the issue was whether the law regarding reasonable accommodation for disabled employees was preempted by by the contract and this court said no it's not preempted you're running a little short of time and you're not getting a lot of questions you want to save any i would like to save the remainder just to finish on hubbell versus boeing that in a case where an employee in washington state as in humble says i wasn't given reasonable accommodation for my disability in my job there are any number of features of the collective bargaining agreement on which the employer might draw in mounting a defense but the fact that that federally governed collective bargaining may show up in the defense of an independent state law claim does not suffice to provide removal jurisdiction that is the fundamental principle of caterpillar says williams they can raise those issues that that will contract interpretation when they  don't consult before we sit so i don't know what my colleagues are thinking i thinking dallas is law of the circuit there's absolutely nothing for us to decide except whether the case is controlled by valid or must be distinguished from dallas it must be just to tell me what's the distinction is then why don't you give us the kind of words that could be used if you were to win and in this position that alice represented a frontal attack by employer on the application of state war itself you employ an valis me to arguments where i don't care arguments and i don't care the adjectives what i care about is what differences are there in the collective bargaining agreement or other aspects of the deal or the workplace customs that distinguish reality as the facts are stated in dallas whether that's you know whether they can be read differently or  shut you know now in valley there is no evidence that there was unique piece of the collective bargaining agreement which constituted such  written agreement as required by the wage order in fact as a footnote in value pointing out that the defendant conceded that because of the change in operational technology and this second one says when by written agreement between the parties and on the job paid meal period is agreed to let it is are is a is that your understanding that the second part of that is contested that is that the c p does not constitute a written agreement would refer us to or authorize us to look at some other separate agreement cut the first ones that simply says when the nature of the work prevents an employee from being rivendell and doesn't state if the parties agree that the nature of the work prevents them sure in the sections of the nature of the work prevents an employee from being relieved of all duties among those criteria or the consequences to the employer and the availability of other employees those consequences in the availability of other employees are dictated by the provisions of the c v a to which i have cited you which tell us how much we must pay to an employee that we call in who is available for what type of work what employees in what classifications may perform work these are paragraph eleven we have never made an argument that anybody waived the right to appeal theory it entirely because they work less than six hours that's an argument it was made in by a balance are scenarios where an employee has an independently arising state war claim and then the defendant tries to displace that can now now under see red ink i'm a little puzzled by the same thing touched by because his question to you about you need two things to understate the nature of the work prevents the employee from being relieved and you need a written agreement let's say you have the written agreement if the workplace procedure is to try to relieve you and they are relieved in most circumstances that suggest that the nature of the work does not prevent them from being relieved rather that  whether everybody showed up for work that day and there have been an especially busy time that they that that's what prevents them from being released i think that that tension is certainly one that has troubled many employers and i think in this case to put she's back into the collective bargaining agreement obviously if it is completely impossible to relieve some body of duties during a lunch period you have one chick leave incoherent way george right because it's telling you you can only relieve someone you can only put someone on duty if it's impossible for them not to be on duty well it's time to upset certainly crew airplane pilot if you have faith just let the plane do whatever it feels like for an app for a half hour but i think that the criteria for determining when the need through the work makes it necessary for an employee to stay on the job allows some flexibility because it does allow us to look to the consequences to the employer and it's some point the burden of those w a i want to hit quickly on the last point about the agreement in your question you asked is there any contest over the written agreement i would say yes there actually is we all agree there's a written agreement appellants you've made the point repeatedly that that there was one provision that could arguably satisfy that was pretty clear that the c p a does not contain something that says this provision may be revoked by the employee in writing at any time although relief shall remain at their posts and sort of the by their meter released by the supervisor second sense of the clause goes on the see if requested a supervisor will make every reasonable effort to provide relief counsel i think my question was there isn't meal period in that paragraph and where does the state anything about getting it in writing it does not limit it is just because it worried about writing doesn't and it doesn't say a word about meal period wage or does not require such revocation of in writing it requires the written agreements state in writing that it is revocable it says the written agreement still state that the employee may in writing in writing or revoke looks like that both have to be in writing to some degree then i suppose we've gone even v in general a collective bargaining agreement is there anything about meal periods yes page eighty eight of the excerpts of record ministry ground rule number three  the heart of the written agreement called for by the wage or employees of science to eight hour shifts without a lunch period shall be afforded adequate time for lunch on the fly as the opportunity arises and since i will be paid for as time work legations under paragraph see although i still believe knowing how these things are negotiated when we say that section fourteen employee obligations in the language they're in does not apply to meal periods we're necessarily inferring that because it's located in a different section of the c v s it's plain language doesn't limit it does not mean milk or it's not mean rest periods for anything else i'm not arguing that it would have been better to put it clearly after the meal period section but i think this need this discussion we're having right now over whether this applies underscores why interpretation is required underscores why we need to look at what was this meant to be because on  face any time the employee doesn't want to be on his post would it be better if it's at meal periods yes i'm not going argue with you on that does that absence mean though that it doesn't apply now we're looking at the intent of the parties who negotiated this look we don't like that  we have to follow valid it's the law the circuit balance did not deal with the situation where in marching through the analysis under state law the state law requires we have a c v a state law doesn't apply in this case we are conceding the application of state law the concession that state law applies is not a rhetorical stunt it's not is simply more refined argument it has been suggested we are not trying to displace state what we are saying that as you march through the analysis under state law it calls upon you to look at this written agreement in the side if it is sufficient under sta paid meal periods agreed to argue conceding the second one the there is a written agreement between the parties on the on job paid meal arrangement no because the final sentence is not satisfied ok i didn't ask what the final second but that there is a written agreement between the parties no because there is no written agreement between the individual employee in the employer and the individual employee who possesses the right why you don't believe in unions the collective bargaining agreement can't speak for the employee not when it relates to issues of minimum wage or standards this is the issue that's been running through the courts since cases like labatt of some kramer is the c p a then void  and that's what balance says that one says that these rights may not be waived in a collective bargaining agreement flatly and your honor the ninth circuit invalid is not necessarily the final provisions their state law does that even in that case the individual employees cannot be relegated to the grievance arbitration mechanisms of the labor contract because since minimum state let us minimum statutory labor standards company that they might have a valid defense to this action by saying that the nature of the work prevents employees from being relieved of all doing and in that sense they would have to give the collective bargaining agreement pretty much does acknowledge that by saying it may be necessary to eat lunch on the fly and you can't leave your post the union must agree to that because they thought that's where it is and that's true but the unions agreement to that provision does not displace the right of the california courts to make a contrary decision when they judge whether the nature of the work prevents the employee from being relieved of all duty and that's even separate from the glaring problem that the c b a does not provide for individual employees to revoke their consent at any time so what you have in this case here is a defense that is not valid on its merits but the court really should dispose of this case on purely jurisdictional grounds by saying that the merits of that the fence are for the speak or the employer is free to raise its argument based on the c v a once this case is properly we manage the state court but plaintiffs claim here is not a claim for breach of the collective bargaining agreement it's a claim for a violation of an independent state law standard and we prevail or fail in state court