versus a bow manning versus united states department of defense we have three matters to be argued to have taken the order in which they appear on the calendar beginning with angelus versus us airways the primary issue that the court must st decide is with regards to competing overtime exemptions we have an overtime exemption that resides in the i w c we call it th that's what it says and that's exactly the momentum in one thousand nine hundred and nine right the momentum and the c b a actually does have premium wage rates for overtime worked it simply doesn't cover over time that's taken on voluntarily through an employee trade correct correct and that's that's the that's the gist of the liability with us we know what your argument is but you haven't explained to me the logic is issue in which is why isn't the railway labor act exemption a logical provision for california to an act because the c v a in question here it is in some c b s right but the problem is the c b a question here the c p a in question here actually defines the overtime which is fine to do right it doesn't have to follow and ten it defines over time in its own way and that's fine it says over time is eight and forty it says it very clearly daily over time qualifiers eight it says it very clearly we over time qualifier forty and says employees are entitled to trade and work that through right position you're advocating would cause the company to say well heck we're not going to let employees wap shifts and trade off because we're premium wage rates for this for this shift trades over forty dollars we're not going to we're not going to allow it and that's fine that's exactly what overtime it is so you're willing to through this lawsuit to take away a benefit the employees union has negotiated for itself well exactly what's logical about that it's not a benefit if you conceive of overtime if a day's work is eight hours it's a benefit because employees don't have to do it they voluntarily choose to do it and put them in the position knowing that the company doesn't plan to pay them out overtime rates for what they have all fallen terribly decided to take on well there are other provisions in the c v and there are there are situations where the company asked them to do the work right and if that's however they yes but that's not this case the case is about employees trading for themselves and i'm trying to figure out how exactly does it benefit the employees your clients to take away a benefit that the union has negotiated for them allows them to swap off because the reality is the company then has to adjust and the company would have to assign those hours to employees and the overtime still needs to get because once the shifts have been determined by seniority something else the union has negotiated for a company doesn't have to do anything but doesn't make those trades it doesn't have to put itself in a position of paying overtime that it wouldn't have to pay it will simply say no trades end of story and deceit and that doesn't complicate the employer the employer's life at all it takes away a benefit from the employees it depends on what you conceive as a benefit right you're forcing the ability to trade but now if you're not forcing because you don't have to trade it's the employees who choose to trade knowing they're not going to be paid at a higher rate for that time everybody understands how it works and what you're doing with this lawsuit is trying to upset that apple cart and take away the ability of the employees to make that trade nuts not to you on why isn't it true why it's not true because you have to see what the legislature did no no no no no no no it said i'm not talking about the statute sure the california legislature could itself say no traits i'm saying i don't understand how your position benefits the people you purport to represent because it takes away the ability to trade that the union has to go she added for and explain to me how the employees aren't make them full time workers right and what we need to money fast there's many different results i don't want to go down that road but i got to tell you i don't understand at all the logic of what you just said how the company will to suddenly decide if they can't let employees make changes it's going to wind up turning these people into full time employees and so if it was the shift still needs to get we're the people that left goal of these shifts are usually like senior employees that did not did not to work in the st place so it's not like if you change the system that they're suddenly going to work these shifts still need to get covered so so there are just so is this really about sort of sort of junior employees against senior employees is that what you're putting against here no no no and it certainly seems like it is because judge because judge judge clifton's pointed out this was negotiated by their by their union representatives this is this is not something that was demanded by the by the company this is something that the that was that was negotiated this is what the apparently the employees wanted and your argument suggests that well maybe it was wanted by the senior employees but it would have been wanted by by newer employee that's right and the result too is that they're hiring more part time workers right but what regardless you can't say ok it's overtime but we won't it's overtime pay the between way it's a it's a flexible work schedule it allows and allows employees to trade to trade ships and i'll trade with you this week maybe you'll trade with me next week and that works for both of us i get to go my kids soccer game next next week you could take wife on vacation and that you wouldn't otherwise be able to do and and i wouldn't be able to do and i'm willing to and i'm willing to work additional hours next week in exchange for the time off this week and you're willing to work time off this week in exchange for that x to y isn't that just a great system it's a great system except that you want to you want to tell the employees and you want to tell the company over time it's different if you're and next week be really communion for you if you take friday off so i'm willing to work friday for you next week if you're willing to work friday for me this week and i realize i might have to work some more hours about you over the two week period i believe we both worked eighty hours yeah that's great then and there's nothing wrong with that about is that you take away that opportunity for the employees to swap because you're going to tell the company you let us walk we're going to make you pay more and the company doesn't want to pay more hours and per hour and so they say no no more swapping and exactly how does that help your clients well it helps the client because it forces the company to schedule better it helps to helps the consomm i raise this question for the schedule is driven by the employees choice based on their seniority the company doesn't have to do anything after that what do you mean by schedule good or a schedule is done by u airways and then the employees pick it by bison on home right so and so is far and that's it once they've done it the company can say ok that's your schedule we're done with this yes and so what causes the company to want after that to schedule better as you've told us a couple times i don't understand that at all because if if if there are shifts that are open if if after they come up with the schedule in the shifts are open they will shift need to get covered rice crop and yeah but that happens under the current system or under the system you're rosina modify if the company makes somebody work overtime they're going to have to pay that's not what this lawsuit is about this lawsuit is about employees who look at their shifts and say i want to do the swap that you think do you think specifically prohibits this kind of arrangement it doesn't prohibit this type of arrangement all it says is once you hit the threshold of what over time you define is then you need to pay premium wage rate and that's five hundred and fourteen that's that's the matter you've defined over time the way you did now you have to pay premium wage rates if you overreact it's a simple as that and the other thing that i wanted to make somebody else that's fine if that's what this is he says that's not what this is yes it's overtime but we're not going to pay it if you got it through a shift so how is that different from what i just said because because they recognize that it's over time well it's more than forty hours if us voluntarily assume forty hours because you've traded with somebody else on a shift then the c b i says that's not over time that we will pay for it it's clearly in excess of forty hours nobody's going to dispute that there there is a thread in appellants argument that shows up for the st time in the reply brief and then comes up again in his response to our supplemental our notice of supplemental authority which is he's asking the court to take a look at two separate provisions of the c p a that talk about over time talk about when it's qualified talked about when you're eligible for overtime under the c b i it was never raised below was never raised in the opening brief if that's really what's going on here then the entire issue the reply brief and your honor just picked up on it as well that there is this thread in the argument that he's saying that for some purposes shift trades are over time under the c b i and for other purposes they're not i don't think we need to touch that with a ten foot pole but if your honour's are  plaintiffs wants to focus on section five hundred and fourteen really to sorta the exclusion of all of the other sections of the labor code and everything else that was generated as part of a b sixty and i think the history here is really informative prior to and eighty seven dollars there were no labor code provisions that talked about overtime it was entirely a creature of the wage orders as promulgated by the i w c what happened in around eighty seven dollars is the i w c decided to revise those wage orders and say now previously you could qualify for overtime if you work more than forty hours in a week or more than eight in a day and they revised them in one thousand nine hundred and seven to say to remove the daily piece you now had to work more than forty in a week if you work more than eight in a day but not more than forty in a week you are no longer eligible for overtime sacramento was very unhappy with that sacramento past eight thousand and sixty which is the genesis of all of these labor code sections we're talking about and basically the and fifteen b says look to the extent that it was an exemption that existed in a wage order prior to one thousand nine hundred and eighty seven we are not displacing that we're not touching that the i w c still has full authority to retain  those and to to interpret them in to apply them and they are what we've all been calling the aurally exemption was exactly such an exemption it has existed since the seventy's it has continued unmolested through this entire time period right through through to the present s not any c b a but very specifically an r l a c b a were adequately protected by that c v a and therefore were largely exempted from the provisions of the wage order fast forward many many many many years now you have and fourteen which was added again by the legislature in eighty seven for the reasons i just mentioned and what five hundred and fourteen actually does is expands the exemptions that are available to club employees subject to a collective is is is that exemption and five by fifteen seems to sort of take away everything else that the legislature was doing in eighty six i seem to be a hole big enough to drive a truck through i don't think so your honor i think with due respect i think all the legislature was recognizing was that to the extent that an employee was covered by a c b a any c b s they you know it meaning not just an oral a c p a then they were probably adequately protected so long as there was a particular floor and the particular floor was you know thirty percent more than that then a political minimum wage lots of employees aren't subject to any collective bargaining agreement and so there are many many many employees in california that five hundred and forty inches has absolutely no applicability for whatsoever so i don't think it just orally cbs it's also other c p a s on so long as it meets these these baseline criteria plaintiff turns around appellant turns around and says well that means now that that baseline limitation on thirty percent more than the minimum wage also and  for all and premium rate premium wages for all hours worked all overtime hours worked also has to apply the are away exemption that had preexisted in the c b s preexisted in the wage workers and that's just violates every principle of  construction that california courts use when they're looking at the labor code in the wage order the instruction is always harmonize if at all possible if there is an express conflict then you have to deal with it but otherwise harmonize if at all possible because they recognize that there are these two sort of equally applicable if you will systems of regulation there is no conflict between the general c b i exemption and five hundred and fourteen and the preserve all of the exemptions that had existed in the wage order prior to a b sixty and nobody is disputing that that is exactly the case with our legs i mentioned potential complication there that was the st few words of subsection b because that's where it has the except as provided in this section and for you with the other one is and so it's not as simple as being able to say if it was in place before nin ety seven it's untouched we still have that language we have to navigate so why isn't that language a problem i think it's for the reason i mentioned a minute ago what i read that to mean is if there's a it requires a conflict if there is a conflict if there is something in the rest of a b sixty that conflicts with something that had preexisted then and then it falls under that introductory language that your honor is referring to but there is no conflict and again courts really endeavor to try and read harmony into this dual system of regulation between the labor code in the wage order and i don't see a conflict i see a provision that is specific to the r away and is and when you go back and you look at the statement of findings in the in the xor record that i referred to before they had a specific reason for singling out our alessi v a s and then the legislature came along many decades later and broaden that protection and said you know what that's a good idea other people that are approved employed pursuant to c b s should have a similar protection but we're going to add this you know additional couple of baseline requirements i just don't see a conflict there at all especially when what you do have is the explicit language of five  saying that what the legislature was trying to do is preserve all of the exemptions that had preexisted and they are allay certainly our legs emption is certainly is certainly one of those and then you know collins and other courts that are cited in my briefing they really look at that language and they say well what's really going on here is that it's making clear that to the extent that the i w c changes things per or enforces exemptions consistent with five hundred and fifteen dollars b they're doing it so that it doesn't violate a statute statutory provision that was and acted as part of a b sixty again requiring conflict i don't see any conflict here at all something else i wanted to mention on a on a different topic there's this argument that well what would happen if i think we all agree i think appellant conceded that if the court was to rule the way he's asking you to rule what would have it would essentially mean there be no more shift trading i think we can all sort of agree with that as a practical matter  says well what that would result in is part timers being converted to full timers or additional hiring now and this is gone through in the statement of facts in my brief with with cites to the record if you if you want to follow up on it but what happens is there's a senior there's a scheduling proof vision in the c b a it's a very long very complicated i won't pretend to you that i understand all of it but what happens is that essentially everybody period there's a schedule put together it's posted and people w pursuant to that schedule they've been they did yes your honor they bid for it and then however that comes out based on the seniority provisions in the scheduling provisions of the c v a that's the schedule people worked if there was no shift trading that's where it would stop no additional hiring no part timers to full timers know it's going to force airways now american to schedule better no it just means at that point the people will work the schedule that the bid system  generated it's only if you go the additional step of allowing them to strike swap voluntarily which is all of your honor's mentioned is a benefit that the union has negotiated it's common in the industry you know in the record there are many declarations that we submitted to judge prior sort of  talking about employees valuing this and how they use it and what a benefit is and everything but if it went away the only impact would be that the schedule as bid would be worked that's it so this benefit of hiring more people  scheduling better or converting part timers to full time or at it's totally unsupported by the record and it's i would submit to you that it's also it's also illogical and then i lastly my last couple minutes here just on the issue of certification to the california supreme court that's a pretty high standard i mean if you look at the standard it really is designed for unique circumstances where there is no guidance and asking about a varying a do that which sort of there is a case that's been certified in the supreme court has taken a guess it's the ward case three of them ordered to drill in oman should we wait for those they have no so i'm actually the lawyer in those cases as well they have no impact on this case whatsoever what if you're the lawyer what's the timeline it's been what a year and a half or something it has been a year and is it going to brief so we briefed it sort of soon after it was certified and it's been sitting there sitting there i was i was going to try not to use that phrase but since which is monthly i tell them it's probably going to be in the st quarter of next year because it has been there for a while but we're just waiting for an argument date you don't wait i do not think you want to wait so the thing that is that issue primarily in the word  anything like that and you know there's a lot of intricacies to that argument that i won't get into but it's very different from here where it's very clear that this is that you know the daily over the overtime provision as of five hundred and ten or exactly the type of provision that five hundred and fifteen b was was designed to preserve the exemption to that was designed to preserve i think you've got the statutory language is very clear i think you've got the history that i've cited to you in my briefing and today before you you've got the collins case you've got the brownish case i think there is plenty of guidance to the extent that you need to do anything other than just look at the text of the statute in the history there consistency purposes i would think so your honor or certify to them so they do just one whole week with regard to these issues i think that's also a because the issues are so related with regards to the are laid i that you see the labor code i think for consistency purposes maybe the california supreme court should deal with the issues with regards to call ins and harmonizing i think collins is actually a good case for this court to review all it's actually mentions the exemptions the collective bargaining agreement exemption and i think collins tells you that there is an effect to the introductory clause and that that the i w c this not have the power to actually undermine the labor code and that's a thing we can harmonize the situation here but the harmonize the situation here you'd have to read the premium wage rates requirements into the c v a in question and then would the point with regards is it better for the workers are not well the legislature is the one that spoke and with regards to what's better for the workers right and remember the weather is back that doesn't answer the question at all because if we go through the scenario as it was just outlined the legislature if we interpret the statute the way you ask us to has spoken and the company responds by taking away this benefit that's been  that it doesn't need your lawsuit if the workers decide we're not going to go for this trading anymore unless you pay us higher rates for the overtime hours that can be dealt with negotiations right but the negotiations cannot undermine state b s cannot enter into agreements that and as a result you do not answer the question as to why it is that simply doesn't lead the company to take away this benefit because we're assuming that that's the that's what's going to happen with other results can happen your honor other results can happen where they actually adjust to the needs of the workers remember they need these workers these are fleet service agents that work our airports they need these workers and the things what we're asking for is to strengthen the overtime rights thank you can thank you we thank both council for the argument angeles versus u s airways is