husband and wife separate businesses they aren't even like that all the statute nonetheless makes because of the marital community makes the joint employer correct the liabilities in the range which is between the marital couple that california intended to create joint employer liability for it every time that you have husband and wife are parading businesses the short answer is yes and the other answer gives both spouses equal control over management in the trial of community property close in what context was this student mean this was a case involving a premarital agreement that there would be no spousal support upon divorce i see so it had nothing to do with the liability it's joint employers to anybody else right they did not try to but in looking at the policy behind that it's sad that under current family long california both spouses have an equal right to manage community property because of that i guess the whole thing on here you've cited you've cited those two cases but while they allow you to make your argument i think you have to concede that they're not dispositive that you're asking us to take another step i think they're just positive in this respect i think that in order to have well to me a case is just positive if it says that it applies directly to the facts that we have then i don't see anything to me if they allow you to make that argument but you would be asking us you know if we buy your argument this would have to be an opinion and by an opinion i'm saying publish because there is nothing out there that says that says exactly what you're saying that's correct and this is not a common fact situation when most people decide to operate double breasted they incorporate they form a limited liability company or they form a separate legal entity and here we do not have a separate legal entity we just requires that in order to convert the community property and the separate property which is what mr tuck you would have had to have in fact told proprietorship that requires a writing between the spouses and notice to the third parties that that's boss is doing business with similarly the obligation to contribute to totally trust funds is required to be in writing and oral modification is not recognized because the policy behind those national labor laws employees will get their promised pension benefits and health benefits under the applicable clock collective bargain agreement not target that's the other thing that bothers me a bit here this is somewhat unusual case because the nine union operation was in existence  being a union shop in fact now a preexisting business that her husband was operating is now obligated to make the contributions so in the boys who walk into business and employees who weren't at all subject to the contributions are now swept in and by virtue of the decision to add another business this is not the case of a preexisting union shop saying now employees who never were covered are covered because of something new has been created yes i hear and there's no i haven't been able to find a existing company to take advantage of that to take advantage of the skilled union labor to take advantage of her ability to get work on those union projects but she didn't accept all the benefits other signatory employees who signed that contract they pa now you're saying part of the obligation is to impose upon the preexisting employment operation of the gauges to contribute even though there has been a nonunion shop here creating additional union work although she should have because that's what she promised to do when she signed the agreement she promised pay contributions in all hours worked by paid to her employees but here she gets through the union work she gets the dispatch operator operate the scrapers but she decides on a job by job basis when she's going to pay union wages and french benefits and the employees really have no way of telling i mean with her words the evidence of that in the record it you'll see that on the same day a union employee is being switched from one employee to the other and i think you can raise a million for from that that was on the same job you probably also went for that that was the union project of j r scraper so what she was before you get to either the bargaining unit issue or you get to the alter ego issue you still have to get a predicate it's finding that there they are they meet these quote baseline predicate of single employer and i don't see that the district court overtly address that it will jump right to the alter ego analysis as there been any actual  yes and congress and this court so the district court has to make that finding and if the court finds that there is a single employer then the district court must apply the collective bargaining agreement unless the pre harkins been refuted but there's no bargaining unit here that's other words the only employees you can pick up are ones who would fall within the agreement which is the substitute for determination of individual ised employer bar bargaining you know you couldn't get employee contributions for clerical correct this was doing covered work going to terms of the green so as long as you can prove that the risks equipment employee are covered employees by job description that fit within the free hire agreement then there's no bargain you know determination that needs to be made correct and that's that's admitted here they admit that they took the union operators they were dispatched to jack scraper and used them to operate the same equipment  operative been there for fifteen years each and always nonunion hadn't asked to be in the union under your theory that once she opened up her union shop those two employees operations would be inherently ellie and will well he seems to say no because he seems to if i understand his argument maybe oh i'll paraphrase and he can more accomplishable but because of the community property laws this is a sole proprietorship some so it's easy to see that it is really one business well i think the community property argument is made number one out of desperation because my opponent understands that they have no proof of alter ego they can't prove that so they have to argue something so what they basically in their oral argument at the district court level for the first time resorted to was an argument that a husband and wife cannot own separate businesses without one business being obligated under the contract of the other business that's not what california community property laws stand for that's not the purpose of those those laws that are simply to define the rights of spouse to those to control community assets and to divide property in the event of death or dissolution of marriage  otherwise what counts all would have this court hold and it would be a very far reaching decision for for this court to adopt this community property argument and i'll use an analogy if my spouse owned a dress shop and it was her sole proprietorship she published she filed recorded and published the fictitious name statement i have nothing to do with it i have my own law practice cancels argument were adopted my law practice with the obligated to pay the rent under her lease if she also paid even if she also paid it now i don't dispute that if my wife breaches a contract and that's adjudicated and it's determined that my wife is liable my community assets are subject to levy that's that's not disputed however that's very different than my wife complying with all of her business obligations which by the way jr rentals dick there's no evidence in this record it's under spewed their jr rental submitted to every audit paid every benefit they were obligated to pay under these union agreements period she complied so what they're saying is despite the fact that my wife is current on her least and i'm current on my lease i have to pay her rent and she has to pay money so essentially there's a double payment under any didn't and riyad wing of the business didn't rick equipment was not a signatory to the contract they were not a party to the contract what they're trying to say is is that they were solely because which is before you get to either one either that or the bargaining issue there has to be a determination that there is in fact a single ploy or at the predicate stage that the district court didn't specifically address that if the district court were to address that where do you stand on that is that you go back through a summary other district has been very consistent with regard to one thing on on these double breasted cases and that is that in order to ultimately recover you must determine that the that the unit nonunion company was established as a sham that's under the alter ego correct that under god on what about on the notion that marco posits which is you don't go if you don't have to go to alter ego if there is a single employer and then you can to determine what the n l r b determines that the employees are properly within the same bargaining unit that's alter ego prong man well i'm you know respectfully not sure that i interpret it that way it's my understanding that in order to in order to prevail on an alter ego claim in the double breasting round there would necessarily have to be a determination of single employer and then you take the next step and alter ego i will also say your honor that the plaintive appellant in any its pleadings with regard to this motion acknowledged that they were not pursuing all four of the causes of action ambiguous there was there was really no identification of the theory and the only differences between the causes of action were that the first two only involved mrs and  the third and fourth involving mr and mrs and it was made that was cleared up in the in the motion pleadings that the district court level by counsel confirming that all of the causes of action were dependent upon an alter ego determination i don't think you can have your cake and eat it too i don't think that you can come in here now on appeal  degree of common ownership management operations and labor relations if this threshold requirement is met the next step is on which theory is pursued the first theory it talks about now is the quote single employer theory which is subsequent to the fired the germination i just read the second alternative is the alter ego theory just for purposes of getting clear theory where the district court must defer to the n l r b to determine whether the employees of both the union and nonunion firms constitute an appropriate bargaining unit and there clearly hasn't been done here but the what the effect is where does that leave us on this record and well single employer was obviously not not plaid not raise not argue below wa y i believe that if the court if this court were to say we want to remand this case or somehow get a determination on this single employer issue the district court should have made the alter ego finding first and i can read i found it i have it in front of me it's the con i wish in case page thirteen forty the court in not face and it's not from this just well it is from this district i believe i've said before considering the existence of potential representational issues the district court should have decided to potentially dispositive questions which do not concern basically what they're saying married is the single employer issue becomes moot if there is a finding in favor of the employer on the alter ego issue there's no point in even even  addressing what to do with the single employer issue it's an irrelevant it's a real irrelevant exercise once there's been a determination that that with regard to the alter ego issue i think you may be over reading can i recently think what it what it was saying is that if the under that alter ego theory they find in favor of the union you don't have to go to a bargaining unit determination you can reviewed that for an abuse of discretion and there were certain you know say if i were in the district court judge and i said i think that this was in bad faith i think that they you know they were just harassing and a ll of this and there were some want to discovery and i think that this is just union bullying and all of that that would be the factual finding but here the district court made certain factual findings about that it wasn't in bad faith the court didn't think that this was a frivolous issue you know but what's so on an abuse of discretion standard you're how do i get past that if i wanted to say you were entitled to attorneys i understand that and i do understand that it's an abuse of discretion standard and i understand that that's a very difficult task that i have to convince the court that attorneys to should be awarded i can you point error i believe that the court has the discretion to deny attorney's fees to the prevailing employer unfortunately certainly the court did what it was obligated to do with regard to addressing each of the homo factors  i don't question that i think that there has to be a case there has to be a fact switching situation where the employer prevails in which it would be an abuse of discretion to deny attorney's fees and frankly having lived through this case for two years in the record this is in the record i'm not  answered you get your attorney's fees i think i wonder would i be in the same situation as if the court found the way that it did because i don't get to put myself in the place of the district judge i could view this completely differently and i could say those are excellent arguments had i been there great but i wasn't and then when there are factual findings that's what i'm asking i understand that and no ma'am i cannot objected based upon a foundation argument they were attached i believe to councils declaration none of the people that were identified in these time sheets were a stablish to be union members there was no identification in the time sheets of whether projects were union projects where these people were working and the judge sustained the evidence your objection to those time she's so basically what what you had were pieces of paper with people's names on you couldn't you couldn't take the leap from that to determining number one that they were full time forty hour a week union employees number two that they were doing union work so basically what the plaintiffs did was and this is in the record intimidated and threaten mr taki was in the inactive union member he refused to do it and i believe my supplemental excerpts of the record enclosed portions of this deposition transcript where he talks about that  basically they counsel said look i work too hard on this case let it go down the tubes and you're gonna sign this declaration and he said i can't sign it if it's not true so there was no evidence to establish this issue that that full time forty hour week union employees were splitting time between the two companies that's all made up there's no evidence on that whatsoever so basically i would just conclude by asking the court to to not create new law that greatly expands the  purpose and effect of our community property laws and to to affirm this judge ok thank you thank you vanity and most important in my mind if they had not shared union employees i would not be here today just as a supreme question howard johnson case that a successor corporation can avoid the issue of do they have to bargain or not simply by not choosing to take advantage of the preexisting labor force here if they set up a new corporation did not swish the employees back and forth redispatching are sure of your evidence where he said the district court excluded on objection lack of foundation i don't believe it is hypothesise if i'm not getting the record accurate but this is exhibit forty i believe what the district court sustain the objection to are some summaries that my social prepared to summarize some of the documents what i'm honor that is the case the norco realize i'm congressman itself follows and relies on roberts vs i l which is this court's opinion dealing with the same master labor agreement and the single employer issue where this court five fifteen and what the courts have said is that there needs to be to comply with national labor policy certainty as far as when employers are going to make contributions on behalf of their employees so employees can be sure of when to get their benefits they've been promised