good morning and if that may please the court i'm steve kaplan and i represent the appellant's in this matter there's only one legal question at issue in this case and that is whether the district court had original federal question jurisdiction when it entered judgment we contend that the court did not and that judgment should be reversed should be remanded to the district court with instructions that the entire action then in turn be remanded to the l yes other distracting noise your honor the california warning act provides fundamental individual rights to all california employees union and nonunion the food employers here argue that long after those rights have been violated the employers and the unions together enter into an agreement that retroactively eviscerates those rights the question in this case is whether or court in caterpillar and your honor you may hear caterpillar more often than you would ever care to hear the word caterpillar but the united states supreme court in caterpillar held that a defense under the complete preemption doctrine is not sufficient to confer original federal jurisdiction this really originates with the statute it services section one three three one which is the jurisdiction statute which says that there  original jurisdiction over civil actions which arise under the laws of the united states caterpillars that are arising under means that the federal question even in a complete preemption context the question has to be embedded in the complaint and not located externally such as in the defense so in that case for example there was a independent promise made by an employer to employees outside the collective bargaining agreement those employees later found themselves within the collective bargaining unit and the employer argued that by virtue of their labor finding themselves within the collective bargaining unit the collective bargaining agreement must govern and its interpretation would be required to assess the integrity of their independent state law contract link in the supreme court's no that's not the case the employer always has a right independent and separate from any federal question because we're not dealing with promises made by an employer we're dealing with an independent state statute of the general application to all employees that statu does not in any way require a collective bargaining agreement to be interpreted and in this case there was no collective bargaining agreement even in existence at the time if three judges are going to decide that you want three judges to hear what you have to court will be in recess until the problem is thank you was like in the middle of the argument consider an employer may have a federal defense and i don't think there's any question but that the settlement agreement in this case operates as one of two things both of which are defensive in nature either a pure defense an affirmative defense or perhaps a defense of waiver and both of those have been held by both the united states supreme court and the ninth circuit to be not sufficient or insufficient to confer original question jurisdiction i'd like to see in particular director court the court's attention to the belcourt a case which is the recent ninth circuit case which which stands for that proposition in addition your honor there's a case which i think is fashioned footnote five of my reply brief called smoko grech it's from the circuit i believe and i may not have given it due consideration in my brief and i want to just elaborate a moment here in the smaller a case the employer any case that that tendering of the defense requiring interpretation of a collective bargaining agreement is not sufficient to confer jurisdiction now in our case we believe the court could bas y decision on the absence of jurisdiction not only on the caterpillar doctrine but also on the fact that there is not even substantive or what we call ordinary preemption in this  case the ninth circuit's primary test for ordinary preemption is the miller versus a t and t case a case i think that came from oregon and in that case the ninth circuit established a three part test for determining whether ordinary preemption exists now with ordinary preemption is not present then there cannot logically be complete preemption under the miller test there can be ordinary preemption only if number one the collective bargaining agreement to stablish is a right which is parallel to the federal right i'm sorry to the state right which is being which is seeking to be enforced and in this case the collective bargaining agreement has no sectioning first of all the collective bargain agreement didn't exist at the time of the wrongdoing and secondly the settlement agreement does not confer any parallel rights and the coincidental rights on employees so there's no way to say that there is a separate parallel federal right which is one of the three requirements for there to be ordinary or substantive preemption days ago it's westlaw number one one one two six seven nine i am familiar with that case and there are parallels to that case what that says is that the focus of the complete preemption analysis and so there really would have been no way in this case for the plaintiffs to have gone into court and said and we cited the u s supreme court precedent on this point we anticipate a federal defen and therefore we're going into federal court in order to have the court adjudicate that federal defense and caterpillar makes clear that there is no right to go into federal court unless imbedded in that original complaint there is an original basis for jurisdiction and so while the district court below did ultimately enter judgment it's order is  bereft of any explanation unfortunately and it has always plagued me to wonder what was the federal cause of action that we could have asserted that would have given the district court jurisdiction in order to then enter judgment against the plaintiffs and i have no answer to that question because i can't find any such cause of action embedded in the complaint looking for the cause of action if any of you race children or grandchildren in the one nine hundred ninety s remember the book where's waldo looking for waldo is like looking for the federal cause of action here it's very hard to find in waldo in the wall the books to he was there and in this case it isn't there and for that reason your honour's we don't believe that  district court had the jurisdiction to enter judgment against us in this case your honor i still have a considerable amount of time but unless there are further questions i'd like to see the remainder of my time for rebuttal you meaning that we now have for example the statute does not even refer to preemption yet the u s supreme court has found that the preemptive force of section three a one is among the strongest of all the federal statutes in fact area where congress and the supreme court really want uniformity of law the other very important issue here involves arbitration no one doubts that this false claims and the other claims could have been was removed and partly because it's very concerned about lingering dislike on the part of the states for the arbitration procedure agreements arbitration procedures are a central mechanism of the federal labor and if we look at the complaint we're looking at a state court action and he says the only reason this becomes a federal action is because the defense is going to involve federal there was no dispute over the meaning of the terms of the collective bargaining agreement and therefore no basis to determine that there had to be an interpretation of what is good in this case clearly there is a dispute over the strike settlement agreement lockout during that strike settlement during that strike does the federal court have jurisdiction to in fact resolve the rule twenty three requirements for that class action in terms of that strike collective bargaining unit covered not only by the strike but also by the strike settlement agreement so in fact the federal court not only has the right but also the obligation once this complain this complaint was to determine does it meet the rule twenty three requirements and in fact if it dies what is going to be tried as a class action and in order to do that it must look at the strike settlement agreement there's no getting around it you mustn't think that women must be interpreted you know we're assuming and of certainly we argue that the strike settlement agreement resolve the claims of the collective bargaining unit with respect to  case into the realm of national labor policy which the courts have said over and over again back to you with the males belong in the federal courts so looking at the complaint and looking at the case irrespective of the class obligations like to address a few of the points that were raised by the employers this is not a public policy case jurisdiction does not turn on a balancing test if there is an tickler federal interest in labor disputes which there is that still begs the question of whether or not this particular complain raises a federal question so the fact that there are in other areas a federal policy and interest in labor disputes that does not create jurisdiction your honour's  is applicable to the classes defined in the complaint as all of the employees of or also in and albertsons who were laid off without having been given the sixty days notice ok expect to have to contend with at some point in this case but the machinist doctrine does not confer federal question jurisdiction there isn't a single case that so holds it's a purely defensive assertion and if you look at most machinist doctrine cases i'm i'm going to take a little bit of an intelligent or educated guess here they all went up in the state court systems maybe found their way to the united states supreme court after a final decision by a state supreme court unless perhaps there was diversity jurisdiction but there is no independent jurisdiction based on a machinist's defense  counsel for ralph's directed your attention to the kramer case counsel had it upside down in the cramer case the ninth circuit found that there was no preemption that there was no complete preemption and that there was no ordinary substantive preemption and did remain and it back to the district court with instructions that it be sent back to the state court what's most interesting about the kramer the kramer case said that in the kramer case the employer said well we've bargained away those rights those state law statutory rights that the employees had exactly like in this case and the ninth circuit said that such a waiver number one would need to be clear a mistake a bill but in any event a waiver defense quote unquote does not trick or trigger section three zero one preemption it's just a defense and so kramer is in fact a case i would urge the court to to take a second look at but i think the court will find that the kramer case supports all of the  state statutory klein well there's no logic to that argument but even if there were a logic to that argument it's been was rejected in the caterpillar case because that's exactly the argument that the employer made in the caterpillar case the employer said that the original independent state law cause of action was subsumed by the new collective bargaining agreement once those employees found themselves in a bargaining unit and the supreme court said no there is no such thing as a  my word not the courts and for that reason this argument is a defense of argument which does not allow for original jurisdiction  finally rahner your honors i'm not sure i understood but it perhaps is worth talking for a minute about the argument that the employers made that there is some dependent federal cause of action out there the cause of action of course they envision is one just against the unions not against themselves and as we know from caterpillar and its progeny what we need is a parallel federal cause of that we could have asserted against the employers doesn't have to have allowed us to have the exact same remedies or anything like that but it does require there be some cause of action for us to assert in federal court the hybrid analogy is completely wrong  counsel talk about a hybrid action a hybrid action is an action based on a collective bargaining agreement where the employee says my collective bargaining agreement was violated but my union messed up by not taking it to arbitration they breached their duty of fair representation to me and so no where to hide the reason it's a hybrid action is the employee first has to show to the court that the union messed up and that it should have taken the case to arbitration and then once you've established that it's basically broken down the door or the bar to the three zero one action and then it the employee gets to litigate the three zero one contract action breach of collective bargaining action in the federal court but here there is no three a one cause of action we can bring there is no hybrid action if we broke down the door if the union did something wrong which we don't assert if the union did something wrong then we'd be grating down the door to move this lawsuit not to a breach of collective bargaining agreement but to a breach of the california warn act so that hybrid analogy is a false analogy in this case and finally your honour's i would just direct your attention to our reply brief where we rather exhaustedly discuss why there is no breach of the duty of fair representation in this case i just want to focus on one of the things that we said in that brief and that is a union's duty of representation is limited to the authority it's given under federal law to be the exclusive representative of employees under section ninety of the national labor relations  unions that it's their job to go out and enforce independent individual state statutory rights and that would be rather a frightening thing if suddenly unions were charged with the duty of making sure that employees who have other avenues of redress for their discrimination claims for their wage in our claims for some of their safety claims if we're now saying those all become duties of the unions to enforce under the exclusive duty of fair representation and that would be talking about a hornet's nest that would be a hornet's nest that the courts should avoid and if in fact there's a footnote in my grief where we have some authority on that point it's just a matter of my own personal do you also represent the union no i do not you don't ever now in fact i just wondered  yesterday i guess was about perpetual fifteen years ago it was time ago not perpetual but a long time ago we think out of the argument against just dog it is submitted