[00:00:03] Speaker 04:
Okay, good morning, Your Honors.

[00:00:05] Speaker 04:
And may it please the court, my name is Marcus Jackson, the counsel for the four appellants.

[00:00:13] Speaker 04:
I'm going to start with what I favor in terms of the issues here, the easier one, I believe, for me, and do promise, of course, to address the issues that I'm sure are more concerning this panel, which will be the preemption issues.

[00:00:24] Speaker 04:
First and foremost, though, as to the MSJ ruling on the California Labor Code Section 203 claim for waiting time penalties,

[00:00:34] Speaker 04:
This one, there are tribal issues of fact that there was a willful failure to pay wages due with regard to reporting time pay or what my clients and a number of the employees in this industry refer to as show up pay.

[00:00:49] Speaker 04:
You show up to work, you're not put to work, you're paid a certain amount of money because you were there and you showed up.

[00:00:56] Speaker 04:
Because I didn't focus on this in the briefing, I will provide record citations because there's no way anyone would be able to find what I'm referring to without them.

[00:01:04] Speaker 05:
But each of the appellants... Why didn't you focus on the brief?

[00:01:07] Speaker 05:
I mean, we got a brief from you.

[00:01:09] Speaker 05:
That's what we start with.

[00:01:10] Speaker 05:
Why are we hearing a new argument here?

[00:01:12] Speaker 04:
Well, it's not new with regard to pay, but that particular element of all pay.

[00:01:16] Speaker 04:
In other words, I focused on pay in general, but as to the particular issue of reporting time pay, I didn't include the specific record size that I would like to offer, Your Honor.

[00:01:25] Speaker 01:
Look at it.

[00:01:26] Speaker 01:
Before you do that,

[00:01:27] Speaker 01:
It seemed like the district court thought that your section 201 claim was just about penalties and not about unpaid wages.

[00:01:36] Speaker 04:
This is 203, which is related to 201.

[00:01:37] Speaker 04:
It is.

[00:01:38] Speaker 04:
So in other words, let me clarify that your honor is correct.

[00:01:41] Speaker 04:
This labor code section 203 claim is just for penalties based on the fact that the wages weren't paid at the time of termination, not for the actual wages themselves.

[00:01:51] Speaker 04:
That would be a different section, a different issue.

[00:01:55] Speaker 01:
Okay, so because your complaint it seemed like was seeking both unpaid wages due at termination and penalties for not having paid the unpaid wages at termination.

[00:02:06] Speaker 01:
both in that claim, but you're saying that that claim is really just about the penalties.

[00:02:09] Speaker 04:
No, no.

[00:02:10] Speaker 04:
I'm citing a particular labor code section that's just for the penalties because I think it's easiest for me and I want to start with it.

[00:02:16] Speaker 04:
The issue with regard to wages, I will address secondarily, and then I'm going to get to what I'm sure is- Well, before you do that, I'm trying to figure out which claim you're seeking the unpaid wages under.

[00:02:27] Speaker 04:
That would be unpaid wages under various labor code sections, citing particular 218.5, and there were others that were addressed.

[00:02:34] Speaker 04:
This is the separate claim for penalties under Labor Code 203, exclusively.

[00:02:38] Speaker 02:
OK.

[00:02:39] Speaker 02:
Is this count three or count four in your complaint?

[00:02:42] Speaker 02:
Let me pull it up.

[00:02:47] Speaker 02:
Count three is failure to pay wages.

[00:02:49] Speaker 02:
Count four is failure to pay final wages.

[00:02:53] Speaker 03:
That's count.

[00:02:53] Speaker 02:
It's going to be final wages.

[00:02:54] Speaker 02:
OK.

[00:02:54] Speaker 02:
So this is all about count four.

[00:02:56] Speaker 03:
What I'm going to say right now is yes.

[00:02:58] Speaker 02:
Okay.

[00:02:58] Speaker 02:
And then count three is just about the failure to pay to pay wages that the wages that were owed at the end when terminated.

[00:03:05] Speaker 04:
So in terms of how the complaints laid out, because I drafted it, the earlier count is about the unpaid wages themselves.

[00:03:11] Speaker 04:
What I'm addressing now is penalties because those wages weren't paid when due at termination or within 30 days of termination.

[00:03:20] Speaker 04:
So the so count for the failure to pay final wages your claim is that this that this arises under sections 203 and 201 Yes Why all right, let me continue so mr. Anderson himself that appellant talks about having unpaid show-up pay and not being paid everything he's owned that's in volume two of the excerpts of record and

[00:03:45] Speaker 04:
pages 39 to 40, 60, and then 70 to 71.

[00:03:50] Speaker 05:
Appellant Castillo's testimony about... I have to tell you, this is an incredibly inefficient use of the time, so I'm going to distract you from that and ask you if you need to submit a letter giving us references, but I'm making no sense out of what you're telling me now.

[00:04:04] Speaker 05:
Okay.

[00:04:04] Speaker 05:
But I'd like you to focus, and as I understood it, the reason the district court gave with regard to the penalty claim is that there's a defense, if there's a good faith

[00:04:15] Speaker 05:
belief or uncertainty as to the amount.

[00:04:19] Speaker 05:
I didn't see in what you've presented to us evidence that demonstrated that there was not a good faith uncertainty on the part of the employer as to what was owed and what I understand was ultimately paid for the most part

[00:04:35] Speaker 05:
So that's the issue I think you might need to address with regard to the penalties.

[00:04:40] Speaker 04:
And there could be uncertainty as to amount or whether any wages are due at all.

[00:04:44] Speaker 04:
And I believe the appellate's position is that everything was paid.

[00:04:47] Speaker 05:
However... Well, paid eventually.

[00:04:50] Speaker 04:
Yes, eventually.

[00:04:50] Speaker 05:
I mean, I don't hear the employers saying or I seem to recall acknowledgement that there was some subsequent payment once they got a better handle on it.

[00:05:02] Speaker 05:
But that seems to tie into the defense that there was a good faith uncertainty as to what was owed.

[00:05:09] Speaker 04:
As to hourly wages and expense reimbursements, that is true.

[00:05:15] Speaker 04:
The appellee's labor relations manager specifically states in his declaration,

[00:05:21] Speaker 04:
corrective payments fully compensated the plaintiffs for all recorded hours worked in January 2022, at the correct hourly rate, the 40.51, and also reimbursed plaintiffs for all reported expenses.

[00:05:36] Speaker 04:
But this says nothing about

[00:05:37] Speaker 04:
They're being paid reporting time pay that was owed to them.

[00:05:41] Speaker 04:
Each of the plaintiffs talks about having complained about what they call show-up pay, the legal term reporting time pay, and the union steward, Mr. Roberson, confirming as well that they're entitled to 3.5 hours of pay if they report to work but aren't put to work.

[00:05:56] Speaker 04:
So to the extent that the evidence of payment

[00:06:00] Speaker 04:
is the declaration of the manager who talks about investigating this issue, determining these guys weren't paid right.

[00:06:08] Speaker 05:
Did you make this argument to the district court or did you make it to us in your opening brief?

[00:06:13] Speaker 04:
As to show up pay specifically, no, just pay in general.

[00:06:16] Speaker 05:
Okay, well maybe you should move to something you have argued.

[00:06:19] Speaker 05:
I mean, why haven't you forfeited that issue?

[00:06:24] Speaker 05:
This isn't the time to bring up new arguments.

[00:06:27] Speaker 04:
Well, the argument as to pay in general has been addressed, but I do concede your argument.

[00:06:31] Speaker 05:
Well, yeah, pay in general, but the universe is there.

[00:06:34] Speaker 05:
That doesn't include every single planet.

[00:06:36] Speaker 05:
To tell me that there's a dispute about pay doesn't tell me that this particular issue, which you've used up nearly half of your oral argument time, you're trying to push onto the table.

[00:06:45] Speaker 05:
Is that, in your judgment, the best use of your time?

[00:06:49] Speaker 04:
Well, I'm just looking at tribal issues and evidence, but I understand, Your Honor, as to arguments not made, I understand.

[00:06:54] Speaker 04:
I think there's a tribal issue as to show up pay not paid based on that statement from the manager.

[00:06:59] Speaker 04:
I'll move on next to the unpaid wages claim.

[00:07:02] Speaker 04:
This one does not require an extensive amount of discussion because I've

[00:07:06] Speaker 04:
already indicated in the briefing that under California law, there is a private right of action for unpaid wages under labor code 218.5, which is cited in the complaint.

[00:07:19] Speaker 04:
And therefore, there is a statutory basis to recover the unpaid wages as well.

[00:07:25] Speaker 04:
So that goes to the third cause of action your honors are asking about.

[00:07:28] Speaker 04:
I don't need to belabor that.

[00:07:30] Speaker 04:
I want to get into what I believe I'm going to.

[00:07:33] Speaker 05:
Is there a reason you didn't cite code 201?

[00:07:36] Speaker 05:
I'm supported that claim.

[00:07:38] Speaker 04:
Um, I've argued that district court below the district court's finding was that it feels 201 does not support the recovery of wages.

[00:07:46] Speaker 04:
District court determines it felt that 201 only supports recovery of penalties while disagreeing with it.

[00:07:53] Speaker 04:
My reply brief focuses on California authorities.

[00:07:57] Speaker 05:
What the district court said is you tried to revive their failure to pay wages claim as one brought under 201.

[00:08:03] Speaker 05:
But the complaint didn't mention 201 for that, so it's forfeited.

[00:08:06] Speaker 05:
I didn't see the district court rejecting on the merits of the claim.

[00:08:09] Speaker 05:
It seems to have concluded it was forfeited because the relevant count of the complaint, which is count three, lists a bunch of sections, but 201 is not among them.

[00:08:19] Speaker 05:
201 is cited in count four.

[00:08:23] Speaker 04:
Yes.

[00:08:23] Speaker 01:
And that gets back to my question of, are you seeking unpaid wages under Count 4, where you referenced 201?

[00:08:30] Speaker 04:
Under Count 4, only the penalties.

[00:08:32] Speaker 04:
The unpaid wages would only be under Count 3.

[00:08:35] Speaker 04:
And the district court is correct.

[00:08:36] Speaker 04:
Count 4.

[00:08:38] Speaker 02:
Is the only one that sites labor code section 201 it is not cited in the count three with regard to Okay, so count three you're going to rely on 218 you cited a whole you a whole bunch of other of other provisions 204 210 216 221 2802

[00:08:58] Speaker 02:
But I didn't read those as providing you with a cause of action.

[00:09:02] Speaker 04:
I understand.

[00:09:03] Speaker 04:
The district court agrees with your honor's conclusion.

[00:09:05] Speaker 04:
That's why I'm focusing on 218.5 that's also cited in that cause of action.

[00:09:11] Speaker 04:
But 218 doesn't... .5.

[00:09:14] Speaker 04:
Okay.

[00:09:15] Speaker 04:
All right.

[00:09:16] Speaker 04:
218 has been addressed by the district court.

[00:09:18] Speaker 04:
May not agree with it, but it's not a section that has a clear right of action.

[00:09:24] Speaker 02:
Did you cite 218 in your complaint?

[00:09:26] Speaker 04:
218.5 218.5 is cited as a basis for recovering Attorneys fees and costs for by for unpaid wages, but but not in but it's not cited in oh it is cited in in in count three you decide 218.5 Lower down in the section regarding attorneys fees and cost that's where it's cited I mean do you disagree that 218 needs a partner to give recovery because it doesn't itself provide a cause of action and

[00:09:54] Speaker 04:
two eighteen point five does i don't have twenty myself cited in that kind of the discourse right about that twenty was not cited in that count twenty point five does as a recent california forty not just for the fees and cost of the actual unpaid wages too uh... until i hear the question i'll move on to i think with uh... bigger issues are regarded preemption

[00:10:20] Speaker 04:
I guess I'll simply ask for about two minutes for rebuttal because I need to address these points.

[00:10:24] Speaker 04:
So as to the breach of contract claim with regard to the, that one with regard to Labor and Management Relations Act preemption.

[00:10:36] Speaker 04:
Having drafted a complaint and spoken to my client as I put my declaration at the district court level, my claim is based on wage theft prevention notices.

[00:10:44] Speaker 04:
It is not based upon provisions of any collective bargaining agreement that my clients at the time did not have.

[00:10:51] Speaker 04:
Section 301 governs claims founded directly on rights created by the CBA and claims substantially dependent on analysis of the CBA.

[00:11:01] Speaker 04:
This right that we're citing is from notices on the California law that exist independent of the Collective Bargaining Agreement and therefore... I think you're going to need to address the federal preemption statute because I don't see the limitation.

[00:11:18] Speaker 05:
It doesn't say preemption except when there's a separate state cause of action, we don't preempt.

[00:11:25] Speaker 04:
Correct, Your Honor.

[00:11:26] Speaker 04:
I'm citing U.S.

[00:11:27] Speaker 04:
Supreme Court Catapult, Inc., v. Williams, that Section 301 governs claims founded directly on rights created by collective bargaining agreements and claims substantially dependent on analysis of a collective bargaining agreement.

[00:11:42] Speaker 05:
And I'm submitting tribal issues exist... Your clients submitted their request to UPS on grievance forms, which were prepared, at least assisted in preparation,

[00:11:54] Speaker 05:
by the union representative.

[00:11:56] Speaker 05:
And he based the claims, the calculation of how much was owed, what the right rate was, the number of hours and so forth, on his understanding of the agreement.

[00:12:08] Speaker 05:
He testified, as you cited, that they were not, because of the lack of duration, they were not full members of the union, but they protected by the union contract governed by its terms.

[00:12:20] Speaker 05:
So how is that carved out of the National Labor Relations Act?

[00:12:24] Speaker 04:
Because the lawyer who drafted the complaint, who's standing here, did not base that complaint in drafting it on anything about a collective bargaining agreement.

[00:12:31] Speaker 05:
It doesn't matter how you drafted it.

[00:12:33] Speaker 05:
If their claim is based on the wage rate set by the collective bargaining agreement, how can that not be preempted?

[00:12:41] Speaker 04:
because the wage rates are also stated in the wage theft notices, which were the basis for the allegation of the complaint.

[00:12:48] Speaker 04:
Yes, those wage rates may appear in the collective bargaining agreement, but the claim is based on wage rates stated in California wage theft prevention notices that each plaintiff had at the time the case got started.

[00:13:00] Speaker 04:
That's what the case is based on.

[00:13:01] Speaker 05:
And even if... Do you have any authority that supports your alleged carve out from the federal statute?

[00:13:07] Speaker 04:
Well, I'm going to rely again on Caterpillar.

[00:13:09] Speaker 04:
The fact is, it's not founded on rights created by the Collective Bargain Agreement.

[00:13:13] Speaker 04:
It's founded on rights under California law.

[00:13:14] Speaker 05:
Where did the rage rates come from?

[00:13:16] Speaker 05:
California wage statement.

[00:13:19] Speaker 05:
Where did they have the authority to say, that's what I need to be paid?

[00:13:23] Speaker 05:
Those came from the collective bargaining agreement.

[00:13:25] Speaker 04:
The collective bargaining agreement might be referred to to confirm rates and promotion and increase in rates, but the mere fact of having to refer to a collective bargaining agreement without interpreting any disputed terms does not result in section 301 preemption, running out of time, and it's fine.

[00:13:44] Speaker 01:
Do you want to reserve your time for rebuttal?

[00:13:46] Speaker 04:
Sure.

[00:14:02] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:14:04] Speaker 00:
My name is Eric Tung, representing UPS, the defendant appellee in this case.

[00:14:09] Speaker 00:
The District Court's judgment here should be affirmed.

[00:14:12] Speaker 00:
Plaintiffs bring two sets of claims under California law.

[00:14:15] Speaker 00:
The first set of claims are based on alleged wrongful termination, and the second set of claims are based on alleged unpaid wages.

[00:14:22] Speaker 00:
As to the first set of claims, plaintiffs' wrongful termination claims are preempted by the National Labor Relations Act.

[00:14:29] Speaker 00:
The Act provides employees with the right to form or join unions, to bargain collectively, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

[00:14:41] Speaker 00:
The Act also prohibits an employer from interfering with the employee's exercise of their federally protected rights.

[00:14:48] Speaker 00:
When a plaintiff's alleged activities are arguably protected by the act, state law claims based on interference with those activities are preempted.

[00:14:57] Speaker 00:
As the Supreme Court held in Garmin, such claims are to be channeled to the National Labor Relations Board to avoid conflicting adjudications over the scope of the act.

[00:15:06] Speaker 00:
Here, plaintiff's claims are preempted for two independent reasons.

[00:15:11] Speaker 00:
First, plaintiffs have asserted a right under the collective bargaining agreement, under payment of agreed upon wages.

[00:15:17] Speaker 00:
That constitutes concerted, protected activity, and any state law claim of wrongful termination based on such activity is preempted.

[00:15:27] Speaker 00:
Second, plaintiffs join together to file their grievances through a union representative.

[00:15:33] Speaker 00:
That too constitutes concerted activity for mutual aid or protection, which results in the preemption of plaintiffs' wrongful termination claims.

[00:15:42] Speaker 00:
As the plaintiff's second set of claims, the alleged unpaid wages, plaintiffs cannot prevail under the statutes they invoke.

[00:15:49] Speaker 00:
None of those statutes provides a right of action or penalties as the district court correctly held.

[00:15:56] Speaker 00:
Plaintiffs also bring a breach of contract claim for alleged unpaid wages.

[00:16:00] Speaker 01:
To go back to the last point that you just made, on my read of section 201,

[00:16:07] Speaker 01:
It seems like there could be a private right of action for unpaid wages due at termination.

[00:16:11] Speaker 01:
Why do you think that that's not true?

[00:16:14] Speaker 00:
Well, Your Honor, we believe, Your Honor, that the argument here has been forfeited by the plaintiffs.

[00:16:19] Speaker 01:
That may be, that may be, but I would like you to answer the merits question.

[00:16:23] Speaker 00:
Your Honor, the 201 says wages earned and unpaid at the time of discharge are due and payable immediately, and plaintiffs can only recover penalties under 201 and 203.

[00:16:34] Speaker 01:
Why couldn't they bring a claim for you didn't pay me the wages I was due under that provision that's required?

[00:16:41] Speaker 00:
Your Honor, again, we believe that argument has been forfeited, but our argument also is that only penalties can be recovered through 203.

[00:16:49] Speaker 01:
On that point, in the brief, in your brief, I think it's the, yeah, in the answering brief, you only had one, you cite Bernstein for the proposition that Section 201 only allows for waiting time penalties.

[00:17:01] Speaker 01:
I see no support for that in Bernstein.

[00:17:04] Speaker 01:
So can you point me to the language in Bernstein that supports that proposition?

[00:17:07] Speaker 00:
Your Honor, that's a fair point.

[00:17:09] Speaker 00:
Bernstein does say that 203 sets forth the penalties for a violation of Section 201.

[00:17:14] Speaker 00:
Now, we read it as an exclusive remedial provision.

[00:17:19] Speaker 00:
We think that 201 potentially could be coupled with 218, but again, we think the 218 provision was never raised by... But you agree with me that Bernstein actually does not say

[00:17:28] Speaker 01:
that Section 201 does not allow for an actual

[00:17:32] Speaker 01:
unpaid wages.

[00:17:33] Speaker 00:
Bernstein does not say that 201 cannot be, that 203 does not preclude its exclusive remedial provision.

[00:17:43] Speaker 00:
Bernstein does not say that, Your Honor.

[00:17:45] Speaker 00:
But we read the statutory provisions together as 201 and 203 to reach that result.

[00:17:52] Speaker 00:
And again, Your Honor, we think that argument about unpaid wages, just unpaid wages and not penalties under section 201 has been forfeited by plaintiffs here.

[00:18:00] Speaker 01:
I understand the forfeiture argument.

[00:18:02] Speaker 01:
I raised the question because, frankly, I thought after looking at Bernstein that there was a false statement in the brief and that, you know, needing to be careful about that in terms of what you represent to the court.

[00:18:14] Speaker 00:
Fair point, Your Honor.

[00:18:15] Speaker 00:
We understand and we respectfully disagree, but we take the point, Your Honor.

[00:18:22] Speaker 05:
I'm also curious about 201, though.

[00:18:24] Speaker 05:
What is it that you think prevents a claim?

[00:18:27] Speaker 05:
And I understand the forfeiture argument.

[00:18:29] Speaker 05:
That's something separate.

[00:18:30] Speaker 05:
But I don't understand why 201 wouldn't cover the direct pay claim, not simply the penalties which 203 incorporates, but the direct pay claim seems to fall under 201.

[00:18:43] Speaker 05:
Why doesn't it?

[00:18:44] Speaker 00:
Well, Your Honor, this issue, as I said, we're making an inferential argument based on the text of 203 and 201.

[00:18:52] Speaker 00:
And 203 provides, it's labeled as penalties, Your Honor, but it includes the wages, the amount of the wages.

[00:18:59] Speaker 00:
So it subsumes the recovery of the wages.

[00:19:01] Speaker 05:
So how does that strip the ability to recover under 201?

[00:19:04] Speaker 00:
Well, Your Honor, one can recover under 201 through 203.

[00:19:09] Speaker 00:
And that's our argument.

[00:19:10] Speaker 00:
And possibly under 218, which, again, plaintiffs do not raise.

[00:19:16] Speaker 00:
And so, again, this argument was not discussed by the district court below.

[00:19:20] Speaker 02:
Your theory is they can recover the penalties for unpaid wages, but they can't recover the wages themselves.

[00:19:25] Speaker 00:
Well, the penalties would be the wages themselves, because the penalties are calculated by the amount of the wages that are still remaining and outstanding.

[00:19:33] Speaker 01:
But they exceed the amount of wages, right?

[00:19:35] Speaker 01:
That's why it's a penalty?

[00:19:36] Speaker 00:
They could per day.

[00:19:39] Speaker 00:
Yes.

[00:19:40] Speaker 00:
So if you have subsequent days of lack of payment as the plaintiff's employees are waiting, the penalties accrue over time in the amount of the wages that are not.

[00:19:49] Speaker 02:
So I want to make sure that I sort of understand the big picture.

[00:19:52] Speaker 02:
So with respect to the wages themselves, you think that 201, that that has not been adequately alleged.

[00:19:59] Speaker 00:
And therefore the argument as to wages has been forfeited with respect to penalties Your argument is what good faith argument is good faith and that finding by the district court was not challenged by the plaintiffs on appeal and so The plaintiffs focus on willfulness, but they don't focus on the good faith

[00:20:18] Speaker 00:
element of 203 and and as Judge Clifton pointed out UPS did make an effort to issue remedial corrective payments upon receiving notice of the underpayments and the district court found that that action constituted good faith on the part of UPS.

[00:20:34] Speaker 01:
I guess I don't quite understand what you mean by they didn't challenge the good faith finding below because in the brief they specifically argued that there are questions of fact as to good faith that need to go to a

[00:20:45] Speaker 01:
a jury or whoever's going to try this case.

[00:20:48] Speaker 00:
Your Honor, we disagree with that.

[00:20:51] Speaker 00:
The plaintiffs challenged the point about willfulness and the point about whether 203 willfulness standard, the willfulness standard was satisfied.

[00:20:59] Speaker 00:
But there's another component to Section 203, which is good faith.

[00:21:03] Speaker 00:
And that, Your Honor, plaintiffs never challenged.

[00:21:06] Speaker 00:
And in fact, there would not be a credible challenge to that because the UPS did issue remedial corrective payments.

[00:21:13] Speaker 00:
They did not intentionally withhold wages.

[00:21:15] Speaker 01:
I want to explore that just a little bit So I'll go back and look at the record to make sure I'm clear about whether that actually was challenged or not But let's assume for a minute that they did do enough to challenge the good faith finding by the district court I mean the standard is that you have a basis in law or fact that would That could be successful.

[00:21:34] Speaker 01:
That's a good faith argument for not having done this at the moment that it needed to be done and

[00:21:38] Speaker 01:
Reading the record, we have the labor manager's declaration saying that he found out that there was a discrepancy, he investigated it, and ultimately he issued corrective payments.

[00:21:47] Speaker 01:
What I'm trying to figure out is why isn't there a question of fact in terms of timing?

[00:21:51] Speaker 01:
So maybe you had a discrepancy that needed to be investigated right at the beginning when these people were terminated.

[00:21:58] Speaker 01:
Of course, they weren't all terminated on the same day.

[00:22:01] Speaker 01:
But some of those corrective payments aren't getting paid until mid-February, so several weeks later.

[00:22:07] Speaker 01:
Why isn't there a question of fact in terms of was that good faith to take so long to figure this out?

[00:22:14] Speaker 01:
How hard is this to figure out what you actually owe these people?

[00:22:18] Speaker 00:
Your honor, that might well be a valid argument, but that was not raised by the plaintiffs below at the district court level.

[00:22:26] Speaker 00:
Again, the district court did not pass on that.

[00:22:28] Speaker 00:
And as to the delays in the timing, the alleged delays in the timing, again, UPS has to assess whether there was an underpayment made.

[00:22:36] Speaker 00:
and do a calculation as to how much in the amounts that needs to be remedied for the plaintiffs.

[00:22:42] Speaker 01:
And that... I mean, I think you would agree with me.

[00:22:44] Speaker 01:
If UPS took a year to figure it out from the time of termination, that wouldn't be in good faith.

[00:22:49] Speaker 01:
So that's why I'm asking, like, why isn't there a question of fact?

[00:22:51] Speaker 01:
Your point is it wasn't ever raised, so maybe it's a forfeited argument.

[00:22:55] Speaker 00:
That is our point, Your Honor.

[00:22:57] Speaker 05:
Is there doubt about what the good faith uncertainty covered?

[00:23:02] Speaker 05:
Your colleague has argued that

[00:23:05] Speaker 05:
There may have been bases for some, but not for everything.

[00:23:08] Speaker 05:
He pointed in particular to the days when employees showed up and there wasn't work for them, so were sent away and argues that they made a claim for that and the declaration filed by your client's HR manager didn't give a basis for good faith disagreement or uncertainty as to that element of their claim.

[00:23:31] Speaker 00:
You're again, Your Honor, the specifics as to the arguments, we're hearing it for the first time on appeal here by plaintiff's counsel.

[00:23:38] Speaker 05:
The argument was news to me too, so I get that.

[00:23:41] Speaker 00:
Yes, so that would be the first argument I would make, Your Honor, the forfeiture point.

[00:23:47] Speaker 00:
And again, the district court found, given the actions that UPS

[00:23:50] Speaker 00:
took in expeditiously remediating the underpayments, that that amounted to good faith.

[00:23:57] Speaker 00:
And again, that good faith challenge.

[00:24:01] Speaker 00:
In the briefs, I have to go back, Your Honor, but I don't believe that plaintiffs even mentioned the words good faith in the appellate briefing before this court.

[00:24:08] Speaker 00:
So I don't see that as a challenge to the good faith finding of the district court here on appeal.

[00:24:20] Speaker 00:
If there are no further questions, Your Honor, we ask that the district court's judgment be affirmed.

[00:24:26] Speaker 00:
Thank you.

[00:24:27] Speaker 01:
Thank you, counsel.

[00:24:29] Speaker 01:
You have a little over a minute for rebuttal.

[00:24:39] Speaker 03:
Okay.

[00:24:40] Speaker 04:
One minute, 17 seconds, two points only.

[00:24:43] Speaker 04:
With regard to the tort claims, the retaliation and wrongful termination, those are based on California law.

[00:24:49] Speaker 04:
And if the right to seek unpaid wages under California law is not precluded by the NLRA, preemptions similarly should not be applied to retaliation claims and wrongful termination claims.

[00:25:01] Speaker 04:
based on requesting those wages.

[00:25:03] Speaker 04:
To the extent these claims arise under the labor code rather than the CBA, preemption should not apply.

[00:25:08] Speaker 04:
Lastly, as to the two with the waiting time penalties claim, this has been addressed in depth.

[00:25:14] Speaker 04:
But I will remind, this is a motion for summary judgment.

[00:25:17] Speaker 04:
The legal standard is tribal issue of fact.

[00:25:19] Speaker 04:
And looking at the declaration itself that UPS relies on, there's clearly a tribal issue that

[00:25:26] Speaker 04:
Post-investigation paying a bunch of wages, but never paying reporting time pay that was complained about raises a tribal issue and therefore a plan's request that the District Court ruling as to the claims for claims We've talked about today be reversed the men are reminded.

[00:25:41] Speaker 01:
Thank you very much for your time All right, we thank counsel for their helpful arguments the matter of Anderson versus United Parcel Services submitted