[00:00:00] Speaker 01:
Good morning, Your Honors.

[00:00:05] Speaker 01:
May it please the Court, Ricardo Prieto, appearing on behalf of Appellants.

[00:00:10] Speaker 01:
This case is an employment action brought against Alaska General Seafoods, who I'll refer to as AGS, under the EFLA saying as a collective action and under Alaska Wage and Hour Act as a federal rule of Civil Procedure 23 class action.

[00:00:25] Speaker 01:
Now, to be clear,

[00:00:27] Speaker 01:
Neither class was certified as the district court granted summary judgment mooting plaintiff's motion to certify collective and motion to certify rule 23.

[00:00:38] Speaker 01:
Now this happened although at the hearing where the court considered summary judgment and all the pending motions involving the class actions.

[00:00:47] Speaker 01:
The court had initially noted that it would at minimum certify the EFLSA class, but would reserve judgment on the Rule 23 class.

[00:00:59] Speaker 01:
The issues before the court today are as follows.

[00:01:02] Speaker 01:
Did the district court err under the EFLSA and Alaska state law in finding that fish processing plant workers who were confined to their employer's small housing facility were not entitled to wage payment for all hours in the day,

[00:01:15] Speaker 01:
including one, hours when the worker's sleep was actually or subject to interruption, two hours when the employer engaged the workers to wait to be called into work during their evening hours, and three, hours when the workers were on call or on standby or on waiting time.

[00:01:37] Speaker 01:
The facts in this case are important because they're unique and

[00:01:42] Speaker 01:
as far as it relates to the level of restrictions that took place.

[00:01:47] Speaker 01:
So I'll go over those briefly.

[00:01:49] Speaker 03:
Didn't their CBA indicate that the plaintiffs agreed and understood that they would not be compensated for their on-call and sleep time?

[00:02:00] Speaker 01:
Well, so the CBA did not contemplate, did not cover any of the claims that are being brought here, and the court agreed to that, and the court had held that the CBA did not preempt any of the claims here.

[00:02:12] Speaker 01:
Generally, for FLSA claims like this,

[00:02:17] Speaker 01:
Those claims are standalone claims.

[00:02:19] Speaker 01:
They're claims that you're entitled to bring under that statute.

[00:02:22] Speaker 01:
And so the CBA could add rights under that agreement, but it can never take away.

[00:02:29] Speaker 01:
So there was no specific mention as to these sleep time claims and waiting claims.

[00:02:36] Speaker 01:
There was a system in place to address on-call issues.

[00:02:41] Speaker 01:
But the problem here is that that on-call system that was in place

[00:02:45] Speaker 01:
addressed actual interruptions, not perfectly, but addressed some of those actual interruptions, but it never addressed being subject to an eruption.

[00:02:53] Speaker 01:
And that's because these folks were constantly engaged, Rauner.

[00:02:57] Speaker 01:
They had nothing else to do.

[00:02:59] Speaker 01:
They were in the middle of rural Alaska.

[00:03:01] Speaker 02:
Do you have, I mean, there were other scenarios.

[00:03:04] Speaker 02:
Here the restrictions were because of COVID while they were confined to the campus.

[00:03:09] Speaker 02:
But there were other restrictions where people just logistically are confined, like people who work on a platform out in the sea or in some other remote area where they're gonna logistically be confined.

[00:03:24] Speaker 02:
Do you have any precedent in one of those kinds of analogous situations?

[00:03:28] Speaker 02:
where overtime of the sort you're claiming here was recognized?

[00:03:33] Speaker 01:
Well, so the issue here is that the appellee argues that because of the circumstances related to COVID and the governmental mandate that applied at that time, that there should be an out and they should have a pass as to their obligations to compensate folks who are restricted to the level that these employees were.

[00:03:53] Speaker 01:
The difference here, Your Honor, and I believe you may be referring to the Rousseau case.

[00:03:58] Speaker 01:
It's a Fifth Circuit case where there were workers on an oil rig that were subject to some restriction.

[00:04:04] Speaker 01:
The difference here, though, is that added to the fact that you've got folks that are geographically in an area that's completely isolated, there was this fear, especially at this time.

[00:04:14] Speaker 01:
This was 2020.

[00:04:15] Speaker 01:
We were trying to figure out exactly the extent of how this COVID-19 worked.

[00:04:21] Speaker 01:
You had no access to a rec room.

[00:04:24] Speaker 01:
That was closed down.

[00:04:25] Speaker 01:
These individuals couldn't socialize.

[00:04:28] Speaker 01:
They were to go to work, and then they were to go back to their bunk.

[00:04:32] Speaker 01:
Although there's some instances that appellees arguing show these folks had some leeway as to the personal activities that they could engage in, the rule and the policy was that you weren't to drink alcohol, you weren't to leave, you were to stay confined in this place, surrounded by barbed wire,

[00:04:53] Speaker 01:
and surrounded with guards with signs posted outside that if you crossed a line you would be terminated.

[00:04:59] Speaker 03:
I thought they could drink alcohol.

[00:05:01] Speaker 03:
They could not drink alcohol?

[00:05:02] Speaker 01:
They could not.

[00:05:04] Speaker 01:
That was a violation of the rules there.

[00:05:06] Speaker 01:
And so what Pelley's arguing, well, this is proof that these folks are free to do as they wish.

[00:05:11] Speaker 01:
And so, admittedly, there were some violations of those rules, but they were minimal.

[00:05:16] Speaker 03:
And again- Wait, I want to be clear.

[00:05:18] Speaker 03:
Were they or were they not allowed?

[00:05:20] Speaker 01:
They were not allowed.

[00:05:21] Speaker 01:
They were not allowed.

[00:05:22] Speaker 01:
Correct.

[00:05:23] Speaker 02:
And so the- I thought the evidence did have- I thought the record did have evidence that people did drink regularly and they weren't terminated for it.

[00:05:34] Speaker 01:
Well, they weren't and there were some instances of drinking.

[00:05:40] Speaker 01:
Recall the record shown that it happened regularly, but the the rule in itself was regardless of whether they were terminated or not The rule was that you were not to drink alcohol But the practice was that they did not

[00:05:52] Speaker 01:
The practice is that you're not hired to do that.

[00:05:54] Speaker 01:
But yes, admittedly, it did happen occasionally.

[00:05:56] Speaker 02:
Where were they getting the alcohol from?

[00:05:57] Speaker 02:
If it's a closed campus, somebody must have been bringing it on.

[00:06:01] Speaker 01:
Yeah, my understanding is that you would have folks that would come in and out, whether it was by plane or vehicle, and they'd probably bring some of it with them, Your Honor.

[00:06:11] Speaker 01:
But that's just me making that assumption.

[00:06:14] Speaker 02:
But I take it, I take it the answer to my question before about analogy, you explain why the platform situation is distinguishable, but I take it the answer is that there isn't an analogous situation where a claim like this has been, I mean I understand you say it's not analogous, but there isn't a platform case or another geographic isolation case with this kind of a,

[00:06:38] Speaker 02:
Overtime claim has been recognized.

[00:06:41] Speaker 02:
Am I am I wrong on that?

[00:06:42] Speaker 01:
No, your honor.

[00:06:43] Speaker 01:
This is unique in the sense that it's a It happened during kovat 19 with and there was this level of restriction on the employees But they the employees came up came continued to come back after year after year though Yes, your honor.

[00:06:59] Speaker 03:
They would Understanding that they were not getting paid for on call.

[00:07:04] Speaker 01:
Well, that was not the

[00:07:06] Speaker 01:
The evidence here and the testimony from the appellants was that they were to be paid for that time, and there was a call-out system.

[00:07:15] Speaker 01:
Again, an imperfect system.

[00:07:17] Speaker 01:
It only tracks some actual interruptions.

[00:07:20] Speaker 01:
But that call-out system is in place because the understanding was that you would be paid for your scheduled time, and if any work was to happen outside of that scheduled time, well, then

[00:07:32] Speaker 01:
Presumably this call out system would would trap that time you'd be compensated for it the reality is however that because you were these folks are subject to They were engaged to wait the entire time

[00:07:44] Speaker 01:
Um, that call out system just simply didn't work.

[00:07:46] Speaker 01:
It didn't, it didn't compensate these folks for the, for the 24 hours.

[00:07:50] Speaker 01:
Um, as, as we argued in our, in our briefing.

[00:07:54] Speaker 03:
I'm sorry.

[00:07:54] Speaker 03:
I'm sorry.

[00:07:55] Speaker 03:
I misunderstood your, your answer to my question.

[00:07:58] Speaker 03:
My question was whether or not these employees kept on coming back, even though they were not being paid.

[00:08:03] Speaker 01:
They did.

[00:08:05] Speaker 01:
Yes, your honor.

[00:08:06] Speaker 03:
Okay.

[00:08:06] Speaker 03:
So they understood what was going to be paid and what was not going to be paid.

[00:08:10] Speaker 01:
They understood that they would be paid for some of the time.

[00:08:13] Speaker 01:
They objected to that, certainly, but they were aware that this was an ongoing issue, for sure.

[00:08:23] Speaker 02:
What does the record show about how often people were called to duty in off hours?

[00:08:32] Speaker 01:
So the number of callouts was not high when we did submit to the district court a supplemental briefing on that.

[00:08:44] Speaker 01:
Appellees did as well.

[00:08:47] Speaker 01:
But on that point, it's our position that

[00:08:53] Speaker 01:
this case is more like the Brigham case, where when you have evidence before the court showing that employees are not free to engage in personal activities, the focus on the callout

[00:09:08] Speaker 01:
element under Owens becomes more of a neutral factor.

[00:09:13] Speaker 03:
But they were allowed to engage in personal activities.

[00:09:18] Speaker 03:
I think there's a laundry list of examples of the things that they were able to do.

[00:09:27] Speaker 03:
I mean, they was limited under the circumstances where they were at, but they could do those things.

[00:09:35] Speaker 01:
And your honor, I don't think it's our position that they were unable to engage in any personal activities.

[00:09:40] Speaker 01:
It's our position that they were, those personal activities constituted a small portion of their time.

[00:09:49] Speaker 01:
The examples that are cited in Appellee's briefing, if you think about it, only over two and a half seasons constitute maybe six or eight examples for a number of individuals.

[00:10:06] Speaker 01:
The testimony put on my appellants is that the majority of the time they were there to work because that's all that you could do is work.

[00:10:15] Speaker 01:
And that was the expectation to remain available to work.

[00:10:19] Speaker 01:
You were in a place where only a few individuals could address certain specific issues, like a machinist, for example.

[00:10:28] Speaker 01:
There were maybe one or two machinists available that could repair a machine, and these machines are running 24-7.

[00:10:33] Speaker 01:
So, you know, each person was a cog to this will, and they had to remain available to keep everything working so they could continue to process fish.

[00:10:48] Speaker 01:
And so, Pelley's close campus policy is...

[00:11:00] Speaker 01:
as I've mentioned, was intended for the benefit to ensure productivity and to avoid the spoilage of fish and fish products.

[00:11:08] Speaker 01:
As I mentioned before, Appellee argues that its closed campus policy was in response to governmental mandate related to COVID, but keeping workers from getting sick and available to work ultimately impacts productivity and is for the benefit of the employer.

[00:11:32] Speaker 01:
The appellee characterizes the claims here from the appellant as novel.

[00:11:41] Speaker 01:
However, there's nothing novel beyond the fact that this happened during a pandemic and during a COVID pandemic.

[00:11:46] Speaker 01:
There's nothing novel about these claims.

[00:11:49] Speaker 01:
Sleep time claims have been addressed by this court in Owens and in other cases since Owens.

[00:12:00] Speaker 01:
waiting to be engaged for work.

[00:12:03] Speaker 01:
Those are all claims that have been around for a long time in these wage and hour cases.

[00:12:09] Speaker 01:
The issue here was is that you have a lot of competing evidence as to, as I pointed out, as to whether or not these folks were truly free to engage in their personal activities off the clock or if they remain engaged to wait.

[00:12:23] Speaker 01:
And so when you have a close call, as the district court in this case said at the hearing, this is a close call, and ultimately it came down to a three versus two scorecard when taking the O-in factors into consideration.

[00:12:38] Speaker 01:
This is a case that should have been allowed to proceed to trial, especially when you consider that one of the three factors that went the appellee's way is really should have been a neutral factor as discussed by this circuit in Brigham.

[00:12:58] Speaker 02:
Do you want to save any time for rebuttal?

[00:13:01] Speaker 01:
Two minutes, Your Honor.

[00:13:04] Speaker 01:
If there aren't any questions, I'll go ahead and do that now.

[00:13:06] Speaker 02:
All right, thank you, Council.

[00:13:09] Speaker 02:
So we'll hear argument now from Ms.

[00:13:14] Speaker 02:
Heikila.

[00:13:15] Speaker 02:
Did I pronounce that correctly?

[00:13:16] Speaker 00:
Heikala.

[00:13:18] Speaker 00:
Heikala.

[00:13:18] Speaker 02:
Heikala, all right.

[00:13:21] Speaker 00:
Thank you.

[00:13:22] Speaker 00:
Good morning.

[00:13:23] Speaker 00:
Kara Hickel on behalf of the Appalee Alaska General Seafoods or AGS.

[00:13:27] Speaker 00:
I want to address some of the points that were just raised.

[00:13:32] Speaker 00:
There is no case, there's no authority that's been cited.

[00:13:35] Speaker 00:
I've been asking for that case

[00:13:37] Speaker 00:
since the scheduling conference before the district court.

[00:13:41] Speaker 00:
So we now have confirmation on that.

[00:13:44] Speaker 00:
As to alcohol, there was some testimony that alcohol was not allowed.

[00:13:49] Speaker 00:
We don't have a written policy on that, but the actual testimony is that in particular during the pandemic, people had alcohol.

[00:13:57] Speaker 00:
They had it in their room fridges.

[00:14:00] Speaker 00:
I think Jerry Ross testified he transported it up.

[00:14:03] Speaker 00:
So that's barged up with your personal items for the year.

[00:14:07] Speaker 00:
Mr. Bauman testified he drank daily during the pandemic while on campus.

[00:14:12] Speaker 00:
And the runner could get alcohol.

[00:14:14] Speaker 00:
So there was a runner that went to town, was the one person allowed to go to the store.

[00:14:19] Speaker 03:
But the personal activities were really limited.

[00:14:21] Speaker 03:
I mean, they didn't have television.

[00:14:23] Speaker 03:
It sounds like the internet was very spotty.

[00:14:28] Speaker 03:
They couldn't go out of town.

[00:14:29] Speaker 03:
I mean, it was very limited in terms of personal activity that they had.

[00:14:33] Speaker 00:
One, those are limited in any instance in any season.

[00:14:38] Speaker 00:
The Internet is spotty there.

[00:14:40] Speaker 00:
Television is limited.

[00:14:43] Speaker 00:
Phone service goes down as everyone gets in for the season because there are too many users on the system.

[00:14:48] Speaker 00:
I think one of the fallacies of this case is that the curtain went down when this policy was instituted and suddenly everything changed.

[00:14:57] Speaker 00:
And really nothing changed.

[00:15:00] Speaker 00:
Most people don't leave the campus because they don't have access to vehicles.

[00:15:04] Speaker 00:
Especially during the production part of the season, these folks are working 18-hour days.

[00:15:11] Speaker 00:
When you get off shift, you are showering, you're eating, and maybe you're visiting with family and you're sleeping.

[00:15:17] Speaker 00:
And that's the reality of this job.

[00:15:19] Speaker 00:
It's the job they all testified they loved and they went back to season after season.

[00:15:26] Speaker 00:
I'd like to spend my time today on binding Ninth Circuit case law on the application of 29 CFR 785.23.

[00:15:34] Speaker 00:
That binding precedent is the Brigham case, the undisputed facts before this court, and time permitting a review of those two first Owens factors.

[00:15:46] Speaker 00:
According to the testimony of appellant Cody Flaherty, and this is at ER 390,

[00:15:52] Speaker 00:
If I'm not working, but you're forcing me to stay somewhere, I see that as you need to compensate me for that time.

[00:16:02] Speaker 00:
Under long-standing, well-established Ninth Circuit case law, it's not about whether Cody Flaherty could leave the AGS NACNC campus during the pandemic, but whether he and the other employees

[00:16:15] Speaker 00:
could enjoy personal activities while off duty and while on the campus.

[00:16:20] Speaker 00:
That's really the singular issue before this court.

[00:16:24] Speaker 00:
It's a simple analysis of the undisputed facts, which is based entirely on the testimony of the employees under the Owens Factors, the actual and constructive agreements of the parties, and the application of that plain language of Section 785.23.

[00:16:43] Speaker 00:
Common sense has to prevail here, not this after the fact attempt to shoehorn a government mandated policy into a wage now or compliance problem for this and other industries in Alaska that were complying with these mandates.

[00:16:59] Speaker 00:
AGS asks that the thorough and well-reasoned decision of the District Court be affirmed.

[00:17:07] Speaker 00:
AGS submitted a Rule 28J letter and identified the Kennedy and Hunt cases, recent authority out of the Ninth Circuit.

[00:17:16] Speaker 00:
The appellants responded, and I'd like to pick up where the parties left off from those letters.

[00:17:22] Speaker 00:
The employees argue that Hunt is inapplicable in part because there are disputed facts and then what we heard again today, this idea that somehow AGS is making a pandemic pass or pandemic exception argument.

[00:17:36] Speaker 00:
I would submit that Hunt is the most

[00:17:39] Speaker 00:
on point case to the employees novel closed campus claim.

[00:17:44] Speaker 00:
And the same reasoning that resolves Hunt, resolves the employees claim here under section 785.23.

[00:17:53] Speaker 00:
In Hunt, the employee argued that the more general waiting time regulation applied as opposed to the very specific training application regulation that was ultimately decided against the employee.

[00:18:09] Speaker 00:
They also argued, quote, the employees were always on call and tethered to the hotel, very similar to the complaints we hear here.

[00:18:19] Speaker 00:
The Hunt panel rejected that argument on a plain language basis, noting the Ninth Circuit had similarly rejected that argument in the Brigham case.

[00:18:28] Speaker 00:
The Brigham case was a remote argument.

[00:18:30] Speaker 00:
site employee case where the individuals were living on company premises.

[00:18:37] Speaker 00:
And in that case, the Ninth Circuit applied Section 785.23.

[00:18:40] Speaker 00:
ATS is simply pointing out that this is now additional authority in Hunt recognizing that plain language, the more specific regulation over the more general rule of construction supports applying that regulation here.

[00:19:00] Speaker 00:
That's binding precedent under Brigham.

[00:19:04] Speaker 00:
The parties in Hunt did not make a pandemic exception argument, not in the briefing, not in oral argument, nor did the Ninth Circuit address a pandemic exception in its memorandum opinion.

[00:19:17] Speaker 00:
I can only guess, because I've heard this for several years, that anytime a defendant raises the idea of the pandemic, that somehow the defendant is then asking for a pass.

[00:19:30] Speaker 00:
It just raised this simply as a matter of common sense context for the first two factors in the Owens test and in particular that geographic restriction on movement.

[00:19:43] Speaker 00:
Here the district court weighed those first two factors but expressed

[00:19:46] Speaker 00:
some skepticism in awarding those to the side of the employees because the geographic restrictions were in effect based on the pandemic.

[00:19:57] Speaker 00:
And it was debatable, she said, whether the geographic restriction was excessive.

[00:20:02] Speaker 00:
The extenuating circumstances of the pandemic have to be considered here.

[00:20:07] Speaker 00:
because the practical reality is these restrictions were in place whether they were on campus or off campus, whether they were in Alaska or whether they were home for the nine to ten months each year they were home in the states of Washington and California.

[00:20:23] Speaker 00:
Those restrictions had nothing to do with their employment.

[00:20:28] Speaker 00:
I believe the Ninth Circuit could have resolved this question entirely on the plain language of the training regulation, but chose to add the last paragraph to that decision to clarify that just because the defendant asked Mr. Hunt to remain in a hotel room to comply with a COVID mandate policy,

[00:20:46] Speaker 00:
did not make his off-duty time in that hotel room compensable.

[00:20:52] Speaker 00:
The Ninth Circuit in Hunt used the pandemic as common sense context for its opinion and certainly did not, as has been suggested, reject an argument to apply a COVID exception.

[00:21:08] Speaker 00:
Ultimately, the Hunt panel recognized it was bound by long-standing Ninth Circuit precedent in Brigham, as is this panel, and correctly found that non-work time at a hotel during the pandemic was not compensable.

[00:21:25] Speaker 00:
I want to turn to the undisputed facts.

[00:21:27] Speaker 00:
We're here on a posture of summary judgment and dismissal.

[00:21:31] Speaker 00:
The employees must go beyond the pleadings and identify specific facts that show there are genuine issues for trial.

[00:21:38] Speaker 00:
I want to be clear that the summary judgment record here is limited.

[00:21:42] Speaker 00:
It's ER2 through 945, and then there were some supplemental post-hearing submissions at 2378 to 2383.

[00:21:53] Speaker 00:
That summary judgment record included the full deposition transcripts of the named and opt-in plaintiffs, the written discovery answers, the collective bargaining agreements, and their time records.

[00:22:05] Speaker 00:
There are two AGS declarations in the record, Dave Miller and Liz Best.

[00:22:10] Speaker 00:
Those declarations were submitted purely as background information about the mandates.

[00:22:16] Speaker 00:
and then AGS's response to those mandates.

[00:22:20] Speaker 00:
Those facts are not in dispute.

[00:22:24] Speaker 00:
So this is not a case where there are competing declarations and deposition testimony on the Owens factors.

[00:22:31] Speaker 00:
The Owens factors are based entirely

[00:22:33] Speaker 00:
on the record of the employee's testimony.

[00:22:37] Speaker 00:
The other thing I want to point out is there are several references in the brief to allegations from the second amended complaint, but when you actually dig into the record

[00:22:49] Speaker 00:
those statements and deposition testimony really don't support the allegation, and I can give you an example of that.

[00:22:59] Speaker 00:
The opening brief at page seven says, AGS implemented a closed campus policy which severely restricted the employee's ability to enjoy their personal time.

[00:23:11] Speaker 00:
Footnote five then cites to those community and workforce protection plans that AGS and other seafood plans were mandated to put in place.

[00:23:21] Speaker 00:
It also cites to the record where the photos exist of the AGS closed campus.

[00:23:28] Speaker 00:
There's no dispute that the plans were put in place and the campus was closed and signs were put up.

[00:23:35] Speaker 00:
But those facts are not evidentiary support

[00:23:39] Speaker 00:
for the idea that their time was severely restricted and they could not enjoy personal time while on campus.

[00:23:49] Speaker 00:
That they couldn't leave the campus is not the end of the analysis, it is the beginning of the analysis.

[00:23:58] Speaker 00:
Another example is at page nine of the opening brief.

[00:24:01] Speaker 00:
Employees were required to remain engaged to work at all times, effectively on duty for the 24-hour period.

[00:24:08] Speaker 00:
That idea of a 24-hour schedule is repeated in the pleadings, and it's an attempt to kind of voice this case into a different regulation as opposed to the plain language of 78523.

[00:24:25] Speaker 00:
Footnote 13 largely cites Keegan Flaherty's testimony, where he said things like, I'm not sure I'm designated on call.

[00:24:34] Speaker 00:
He thought they were always supposed to be ready to go back to work.

[00:24:37] Speaker 00:
He was asked about an email between his brother Cody and the union, where there's kind of this conclusion.

[00:24:45] Speaker 00:
If you have to stay on the property, should you be compensated?

[00:24:50] Speaker 00:
And he answered, I believe Cody is just reciting what the FLSA says.

[00:24:54] Speaker 00:
You can't simply proclaim your own call and ignore the Owens test as to the compensability of that time.

[00:25:03] Speaker 00:
Keegan's testimony doesn't support any of the Owens factors.

[00:25:08] Speaker 00:
It certainly doesn't

[00:25:09] Speaker 00:
support what the brief contends, which is, again, this idea that they were on duty 24 hours a day.

[00:25:17] Speaker 00:
The best example of that is from the Brigham case.

[00:25:19] Speaker 00:
There were two types of shifts in Brigham.

[00:25:22] Speaker 00:
There was a maintenance shift where they had a set scheduled shift three days a week, and then one day a week they had what was called a duty shift, where they were on duty literally 24 hours a day.

[00:25:36] Speaker 00:
They were compensated 10 hours for that day.

[00:25:39] Speaker 00:
The dispute in that case was over the duty shift, not the maintenance shifts where they worked like the AGS employees.

[00:25:46] Speaker 00:
A set schedule, by the way, a set schedule that they all admitted there was someone else doing their same job when they were not at work.

[00:25:55] Speaker 00:
This testimony ignores Keegan's admissions that he was never called back to work, not in 2019, 20, 21, or 22.

[00:26:05] Speaker 00:
He said if he wasn't available, someone else could cover the shift, and he wasn't deprived of any sleep.

[00:26:14] Speaker 00:
These are really arguments of counsel unsupported by the record.

[00:26:20] Speaker 00:
Of course, arguments of counsel do not create material facts capable of defeating an otherwise valid motion for summary judgment.

[00:26:33] Speaker 00:
Ninth Circuit authority is long-standing.

[00:26:37] Speaker 00:
Owens from 1992, a similar fact pattern with mechanics were called back on occasion to fix equipment.

[00:26:47] Speaker 00:
Barry in 1994, analysis of Owens decision in favor of the employer.

[00:26:53] Speaker 00:
Brigham in 2004, analysis of Owens.

[00:26:57] Speaker 00:
an application of 785.23.

[00:27:00] Speaker 00:
And while not binding, certainly persuasive, the Fifth Circuit case of Rousseau, the recent Hunt decision of the Ninth Circuit favorably siding Brigham,

[00:27:13] Speaker 00:
And again, while not binding, certainly of note, the Moody case, a 2018 Supreme Court of Alaska case interpreting the Alaska Wage and Hour Act, applying Owens and Section 78523,

[00:27:29] Speaker 00:
to a pilot living on the employer's premises at a remote fishing lodge in Katmai National Park, which by the way is close to Naknek.

[00:27:40] Speaker 00:
When you fly into King Salmon to get to Naknek, it is the gateway to the park.

[00:27:45] Speaker 00:
The court cannot ignore long-standing binding precedent and judicially expand the FLSA and the Alaska Wage and Hour Act to require that all non-work time during the pandemic here on the company property, where the employees lived,

[00:28:03] Speaker 00:
should be compensable.

[00:28:05] Speaker 00:
That's, of course, what Mr. Flaherty wishes.

[00:28:08] Speaker 00:
Citing Brigham, that's a proposition that settled case law and the administrative guidelines clearly reject.

[00:28:16] Speaker 00:
AGS respectfully asks that the district court's decision be affirmed.

[00:28:21] Speaker 02:
All right.

[00:28:22] Speaker 02:
Thank you, counsel.

[00:28:23] Speaker 02:
We'll now hear rebuttal.

[00:28:32] Speaker 01:
I'd like to begin with addressing the Hunt case.

[00:28:39] Speaker 01:
The Hunt case, which was an unpublished decision,

[00:28:45] Speaker 01:
was concerning regulation 29 CFR 553.226C.

[00:28:51] Speaker 01:
That's a regulation that applies only to firemen, and specifically says that employees in fire protection activities who attend a fire academy are not considered to be on duty during the times when they're not in class or training.

[00:29:05] Speaker 02:
I think counsel's point is that they added this last paragraph at the end where they talked about Brigham, which was a .23 case.

[00:29:12] Speaker 01:
Right, but I think the court, from what I recollect in Hunt, found that that regulation itself was dispositive of the issue.

[00:29:19] Speaker 01:
And so it was different from the situation that we have here, where there's a discussion concerning whether or not the employees were free to engage in personal activities.

[00:29:29] Speaker 01:
And there is evidence in the record, Your Honors.

[00:29:33] Speaker 01:
In our brief on page nine, there's deposition testimony from Mr. Bauman.

[00:29:39] Speaker 01:
referencing what the work conditions were like in 2020.

[00:29:42] Speaker 01:
And he says, I'll quote, I mean, we were restricted to campus.

[00:29:45] Speaker 01:
So we were basically, you know, at work all the time for those months.

[00:29:49] Speaker 01:
Footnote 13 in our opening brief has additional deposition testimony.

[00:29:55] Speaker 01:
So there is evidence in the record that these employees were working continuously throughout the day and were not just drinking beer and going on treasure hunts as the appellee

[00:30:08] Speaker 01:
wants the court to believe.

[00:30:10] Speaker 01:
As a final point here, I did want to say there is a difference between what the campus looked like during COVID and when it didn't.

[00:30:20] Speaker 01:
The rec room was closed, for example.

[00:30:23] Speaker 01:
There were policies specifically dealing with socializing and not socializing and not seeing family.

[00:30:30] Speaker 01:
Those were restrictions that were not in place during non-COVID years.

[00:30:36] Speaker 01:
And it looks like I'm out of time, Your Honors.

[00:30:38] Speaker 02:
Thank you.

[00:30:38] Speaker 02:
Thank you, Counsel.

[00:30:39] Speaker 02:
The case just argued will be submitted.