class of servers that pelleas facility in san jose that he proposes to represent i would request that the court allow me five minutes for rebuttal and you have to keep track of help keep track of the on time thank you very much this case is about the limitations on federal jurisdiction and it's kind of an unusual case when you look at the district court's pronouncements when the district court denied the motion to dismiss on the day following the motion it denied the motion to remain and the district court said in curious language that the  complaint here is based on state law claims not a violation of the c b s day the judge was right when he said that it's curious because the day before he said the central issue in the case is whether the as it was raised by the defendants and the defendants actually pointed out in the argument the bulk of plain of sa position to our removal of this action and the bulk of their motion to remain and is built around the argument the court should the court this case should have been remanded because all that was in issue was whether the the putative class was paid in compliance with the ordinance the defense raised in defense that they had this waiver we have alleged and if you look at the caliph at the san francisco ordinance and compare it with the san jose ordinance and those are the only jordan says to look at because our research shows that when the san jose ordinance was being drafted francisco and when you compare it to san francisco waiver and the san jose waiver that's it's curious because the san francisco waiver and the san jose waiver are exactly the same with one difference the san jose waiver has a condition preceding and which says specifically to the extent required by federal law what does that mean to you what that means to me is it's a saving clause because of the bragging decision they were concerned drafters were concerned that brad didn't and it's rationale could be applied to the statute to say it's it basically dictates what parties have to negotiate in a in a c b a negotiation and tell me how that would work what's the requirement well if bragg if this court for example in evaluating that statute that ordinance said it violates braggin it would say the statute because it would dense say ok well we're going to have a c carve out because that's really what they were dealing with with bragger the problem your honor is that i think the district court and i hope this court doesn't fall into that is trying to figure out the rationale and as this court has said numerous times you know what the rationale for why they would put this in if you're saying will brag and so limited probably after nine bragdon doesn't even apply anymore if the courts consider that then they're basically getting into policymaking this statute can't mean the same thing as the san francisco statute that doesn't have that condition preceded it doesn't make any sense why did they put this in they put it in the voters voted on it the plain language says to the extent required by federal law well i suppose even of if it's nonsensical your point is that you don't need to interpret the c b in order to arrive at a result   wage orders have always private agreement in california cannot be determined by wage agreements by c v a grins you can't say i'm going to pay my employees less than the minimum wage generally the statutes don't allow that san francisco's ordinance says specifically you can if there's of a valid bonafide c b s and it does include an explicit waiver of the ordinance and it's an ambiguous that it's waived that's not what the san jose ordinance says and our position is you don't have to have that that like that  there's there is no case to specifically has dealt with that issue that i'm aware of but applying it to state wage law state wage law you can't have a private agreement that's clear to waive minimum wage you can't waive the minimum wage in the federal labor standards act so this ordinance was in our judgment was put in with that language in case a american hotel association said that specifically because that was one of the arguments made in the l a x case in the l a x corridor case by the employers to say what you're really doing is you're making me unionize my employees and this court rejected that almost you may be right you may be wrong but you know the bottom line is you don't need to look to the c b s to decide that question and judge d s has hit the nail on the head that's exactly right that's exactly right this court doesn't have to determine whether the c b a first of all if there's a declared turly faction brought or something like that that's a different issue but here judge diaz is exactly right this court that the district court did need to get to that the district court just need to say well mr mccrae is stating a state law wage claim based on a local ordinance and that goes to the state judge the state judge and gets to make the decisions and i i think he got it wrong because he somehow conflated that said ok well we can get a basically we can get over that issue why why don't we have to look at the collective bargaining agreement to see whether or not there was a way for a minute because nobody raised the waiver issue mr mcrae didn't say in his complaint this violates the ordinance in part because the waiver is an appropriate under that it was raised by the other side yeah but my understanding position is that by raising and you still raising as judge has said the interpretation application not of the c b a but of the of the ordinance is does the ordinance permit a waiver if you find it does then perhaps you're right judge wrote of then perhaps we get to the next step which is is this good enough but where are you can make that argument at some point because if you are then and you seem to be making an run around the rematch question no i don't think so because again i have to wonder was your point was that the the waiver opt out whatever you want to call it is is patently clear there's nothing to interpret that's that's true but the fact is again we're just dealing with the ordinance we're not dealing with anything beyond the ordinance just because somebody in defending against the case raises the this c b a argument because that then every time somebody came in in the united situation and said i'm not being paid the minimum wage the union comes in or the the employer consensus i'm subject to a collective bargaining agreement that's it and we're done we have to and they were well but you don't in this case with this ordinance the way it's written you have to go over you have to jump over another hoop and that is you have say ok how they trigger the ordinance which is all about interpretation of an ordinance not to c b a because we don't a if you haven't triggered the ordinance and the ordinance has a specific condition preceding which is that it was required by federal law to have a c b a cargo that's the clear language of the of the of the of the ordinance you'd have to read that whole clause out and the best the best example i give you is compare the san francisco ordinance with the san jose ordinance and you'll see they're almost identical except the san jose ordinance has it's condition preceded but is just d s s you still that's still a question of statutory interpretation i mean so i mean i understand your point but i think were you do you jump the gun when you get there because i think you can always raise that in any minimum wage case any wage in our case you can always raise the c p a and move it to federal court and i don't believe that that's that that's the law council is a reminder you wanted to keep five section three one of the labor mention relations act preempts this matter because resolution of the state law claim is depended on an interpretation of the collective bargaining agreement  cases while seemingly sometimes inconsistent i think in the past several years starting with firestone after all and we've ottis have distilled down really to this basic point which is that if resolution of the claim requires an interpretation as opposed to just a look at or some hypothetical connection then it becomes a federal claim under section three a one and you can have examined the cases to see i think that's accurate to the question is what interpretation needs to be done in this case ok there is a paragraph your honor the waiver agreement in the collective bargain agreement but let me back up a moment it isn't the plaintiff is the master of his or her complaint and the plaintiff in this case is focus solely on the interpretation of the ordinance not the c v a so why should we accept that while your honor if the plan is complaint actually brings a squarely into contention brings one into contention the collective bargaining agreement paragraph twenty two of the plants complaint says that there was a corporate policy memorialized in the collective bargaining agreement to underpaid the servers despite the san jose minimum wage but that's just a resolve the case do we need to look at the waiver and because it the way well but it is a look at this look at the look at language is at least according to this court's the case law is something that separates a case from an interpretation or you simply looking says that in notes it waiver does not need to be interpreted in this case in the vitus because there was no waiver burnside emphasize that and then goes on to say that if there was a wherever you'd have to review the actual consummate and opt out seems patently clear to me your honor there's been no case that has said that a waiver in a collective bargaining agreement does not result in three a one preemption there is suggestion suggestion in both of august and burnside that they're talking admittedly when there is no cart no opt out in the country in the contract but they expressly distinguish that and say as for federal thr preemption we need to look to see if there is a clear and unmistakable waiver and so we have here not just if you look at the other cases they say well you just look at a wage rate or you have to do is look to see you honest look at the calendar that's what you have to do here the court for jurisdiction and for per preemption purposes needs to look at and evaluate the waiver that the parties negotiated in the se and unambiguous waiver constituted looking into the c b a and not interpret it how is this case and he took because there was no waiver in burnside that's the point they were in and they go want to say if you if you if you continue on reading that on to say if there was a waiver the actual and consummated waiver matters and so that's and that's what the district court found in this case this is the flip side of burnside burnside was there was no waiver and we're not going to find preemption just because theoretically in some in coate way a party could put a waiver in but here there actually is a waiver and here there is a paragraph that the courtney's from target to determine if it meets the standards for both federal preemption and the standards of this wage order which says it needs to be clear and unambiguous and the federal standard is clear and unmistakable so we submit that this is the this is the the other side of the coin and both lavalas and burnside so we said our conclusion that the possibility of a waiver does not automatically trigger preemption makes sense that makes sense because because otherwise any time you can anyone could say well you could have put a waiver in so we have to look at the contract to see if there's a waiver but we don't have to worry about the possibility we actually have a fully negotiated a waiver between the parties that needs to be looked at both for jurisdiction and for preemption purposes now if i can just address for a second to the council's point we don't need to look at the san francisco ordinance to compare it to the san jose ordinance this is not state of california that you can say that the policy makers use different language to different results san jose is a different jurisdiction than california that and san francisco but the our record that we've presented and the the amicus record sets forth a plethora of information as to why the interpretation submitted by the plaintiffs constance case for the appellant which was rejected by the district court is incorrect it makes no sense to say that you have an ordinance which is there to say there is no waiver going to be granted as a matter of fact as was illustrated through united hears counsel that would be in permissible under  can the federal government or norse or a state cannot tell the bargain parties what needs to be in a contract so it makes no sense in interpret ing that provision to say we're making you know we're making a vision here except required by federal law the federal law will never require a waiver because that is inconsistent with the collective bargaining process which is to referee the parties but not to specify the terms is it your position that  the collective if the collective bargaining agreement refers to the two two two two a waged different from the minimum it's in and of itself requires interpretation of the of the collective bargaining agreement i'm not quite an understanding how far your position goes i don't think we need to go that far i think my position is because that would be more true like burnside or cobalt where just a look at i'm not suggesting we have to go that far i'm saying the reason you need to go further in this case is because you have the presence of an actual waiver negotiated by the parties that expressly exams the san jose minimum wage or gets which its provisions allowed for and the wade and the wage ordinance says that the that there can be a waiver provided that it's explicitly set forth correct clear and unambiguous so that in the wage ordinance itself would appear to require some interpretation of the collective bargaining agreement when well there they are connected one gives rise to the other but when you get to the court here when the case was filed and they're saying you didn't pay the appropriate wage that triggers a review of the collective bargaining agreement and the agreement itself has a clear waiver which dovetails back to what this ordinance allows and the agreement binds the plan absolutely a collective bargaining agreement the union is the exclusive bargaining representative for the entire bargaining unit and the plaintiff was in the bargaining unit counsel if i could ask the question please or would you say that in any case or in every case where there is a way for then the collective bargaining has to be interpreted actually your honor there i found no case in which there was a waiver permitted under law and a waiver in a contract and i think that's because when you have those those worlds coming together no one's challenged it does the first woman seem challenging what we have found is number one that there's no case where there has been a waiver and the court has found it's not preempted and more portland number two is a mention the only cases that we've seen that have talked about the structure levada us and burnside and they're dealing with a situation where there is no waiver and they find that fact itself is not sufficient for preemption but they don't want to say importantly that if there is a waiver that's present we need to look to see if it's clear and unmistakable to satisfy the federal rules too for preemption so we're we don't have a case this is the case an essential first impression with a waiver president but we certainly have direction we believe from burnside them of ottis what to do with them but we do have cases i'm sorry we have cases like coble where there's language in a c p a that the court deemed to be sufficiently clear that it didn't require any interpretation why is the way were language and a different meaning because of principle here the trying to make a distinction between engaging in an interpretation when a dispute arises as opposed to a simply mechanical application of a non disputed unambiguous waiver cobalt it's interesting you say you are there to two parts of clear that if the only thing you need to do is take a look and see if you know what is a wage rate or was or a waiver present then that is not going to be sufficient we don't have that here we have an actual paragraph negotiated by the bargain parties specifically addressing the way trade and the waiver so we are in a different situation the plaintiff has made the ordinance which has a predicate clause there about we believe  waiver is pre amps to claim a central part of the case so this is not the hypothetical connection that one of the cases set of some attenuated connection the the waiver it's somehow illegal so we have beyond what firestone said but there are plenty of cases first one being a list illustrative where the courts are found through one preemption because the claim or requires interpretation even if the complaint doesn't mention it you thank you i'll be brief there's just two things i want to say first of all i think judge gold hit the nail on the head the plaintiff is the plaintiff here cited the ordinance in terms of it could not be waived a motion for summary judgment you know to a state court that said it could be waived that that language did trigger it that would create a different case if mr mcrae had raised in response to something like that an amended complaint that so i think the waivers and it doesn't work the way it's written then you would have to interpret the waiver but we did we don't believe you ever have to get there because we don't think it's ever been triggered because we don't think federal law requires that i would cite the court to canal versus san francisco hilton sixty one federal appendix six twenty five cited twenty seventeen had to do with labor co sections three fifty one and in that case the san francisco hilton said the way we to pout our servers is based in part of months upon the c p a and judge white for the united states district court for the new industry california said that created a a one issue this court reversed and said no it didn't because you don't have to look at the c b i you have to look at three fifty one of the labor code which is state law claim we think the this case is very similar to that this is a minimum wage case that was a tip case but the basic theory in rationales the same if the defense believes that federal law requires a carve out therefore they met the standard and mr mccrae we vent to in response amend the complaint and so all we yes you did but then judge schroeder would have a different case and that or amend the complaint and then he's lost it that way so the defense isn't isn't helpless defense is just stuck with a whatever he alleges we have to just accept that there would be an opportunity for rematch and later the could be depending on what the plaintiff does a plaintiff could could accept the decision of the state court on the issue of the carve out go up on appeal an allusion to be done he doesn't have to amend his complaint if the courts find that the statutes been activated then and he decides to accept that or the or that is the law then he's done the case is done but it's not an three in one case