versus the corporate cleaning service mr where  defendant had no plan that identified ex ante or ex post the percentage the plaintiff would be paid from any customer sale and the district court disregarded the evidence that demonstrated is the critical point that these  window cleaners window washers are working irregular hours so some time say they were more than forty hours a week other times they take weeks off you know in the winter and so on and isn't that the point of the commission provision of the fair labor standards act that there's no reason to give irregular our workers over time because they have just decided to come in and that they really like this flexibility so they work more than forty hours sublease don't work at all other weeks and that's how they like to do things and it would be a windfall to give them overtime you know judge this is this is not to take weeks off to any work at all why should they be getting over time when they do work if it all comes out to you know two thousand hours here why would they why should they have an advantage over workers who work a steady forty hours a week church their record evidence was not that they were taking weeks off at a time this is not a case where for example of a real estate agent who might decide to spend money weeks off at a close to mexico in the winter for a couple of months  truth of it as you say acute fact yes judge but the truth of it is that the plaintiffs worked significant number of hours and it works and if a good number of hours a year round but there are certain weather conditions in which they work there are there are weather conditions in which to the plaintiffs were not able to work and in chicago that can be for an extended period of time it can be but the ip that the testimony at trial was that when the evidence when the weather turned bad there certainly would be days they would not work but the company was able to find work for employees washing the interior of windows he said this wouldn't be a little bit different volume for instance in the summer or whatever when the weather is good it was a reason to farm and said you make a when the sun shines same thing here i mean in a live here but when i walk around town i look at these tall buildings they realize that there's a lot of work that might have to be done but there's a lot of variation in the edge of this building but as far as the the time it i i don't i didn't really study old record but it would seem that in the winter time there's going to be smaller crews there's still work to be done but it's not the same volume as when the weather's good there's there's less volume of work to be done in the winter time but there is not there was no out rip there was no record of innocent during the winter months employees were still not working overtime we use everybody it's a full crew working all or does it's the crew diminish when the weather's shit i don't know if that's that's clear that is logical to me that's whay i ask them to do it in there's a lot of time when it's fifteen degrees and windy you don't want to be hanging up there of judge it's logical but agreed you know and so so that that maybe there are some buildings that are easier to work on in that situation and maybe they would still work in the winter but i think with again there's there's no consistency here and therefore it's it's difficult to measure over time and and on a normal basis well if what we're talking about is that there was a problem in terms of being able to track or record the number of hours that the crews are working each day and each week that was no problem because the crews were put report to the company in the morning they would need to report but each to before they would start building they would end the da would return to the companies are tracking the number of hours worked that was no issue and this is not a case where these these employees are completely unsupervised there's an issue of it in terms of the number of hours that they're working and of course it's the employers obligation to record and can't keep accurate records is your claim these people are working more than two thousand hours a year yes josh they were less the evidence well the evidence of it is is largely testimonial evidence in terms the numbers of hours that work in the company could have kept testify trial he testified to the number of hours that he was working on a daily basis but there's not i don't believe that there is a significant or really any record of it tested two hundred zakk number of hours that the plaintiff are working each year but what what the what this appeal store well a service establishment as it is per providing services like window washing in into the stream of commerce i don't i don't know that that the i don't know exactly what the distinction is for purposes stash and has it been well doesn't that doesn't that mean that you're much more likely to have irregular hours with the services tab you're providing a service someone needs a service that's different from the you know where you can work creating an inventory for some future sales right so if some building just got splashed or something and the the windows are filthy and they are having a big meeting there they want to get it cleaned it has to be cleaned immediately right so some some workers some window washers may have to work overtime but if they're compensated by being let you know given weeks off they end up working no heart no longer hours in a year and then why why would they why would they get over to they would get overtime quite cannily because i think the statute requires as it as other statute remember it talks about the services which and if this is a service establishment  you can see you know why to think of it and commission terms as people who work when they have to work but they're not working you know nine to five then why purchasers of its services when you look at the price in the quantities in which its services are provided it's doing everything i don't see your son describe it as a wholes selling something for resale it is selling something for resale because its customers are not me they're not any individual i cannot return to my office at the port and call that a fan and ask it or hire it to clean the window of my office suite or even my entire building the only entity or person that can do that is a property management company who contracts with defendant when that you do said the difference between and you do office or the whole companies building owners and they then resell the property manager in building owner condo associations i think the building owner is the one who's going to pay the building owner if what happens is the property management company for example will hire defendant to wash the entire building and the price but the cost of defendant services are that a pastor resold to the tenants in the form of rent  calculation for each building and what i'm trying to figure out is if it's there's only one customer and that's the whoever owns the building or controls the building and that's who's going to pay that's what i look at retail is  and their window washing services are being bought or paid for by the property management company who then resells or passes really resells those the cost of those services that are strictly an agency relationship the whatever whoever it is that lines it up for the owner the owner pays well the big decisions that have addressed similar kinds of relationships that actually help similar look here is what you're arguing which is totally untenable suppose i'm in trucking business and so i buy a truck from some automotive company and of course since i'm in the trucking business  expense when i charge for for transporting stuff and so on i'm trying to recover the cost of the truck but that doesn't mean that the automotive company that sold the truck to me is a wholesaler because as a buyer i'm going to actually try to recover the cost in my business right that's because of the the that that the price and the quantity in which you're talking about ha thing i sell the company sells a truck to someone who's in business and he's going to try to recover the cost of the truck in dealing with his customers and that's just like the property management company which is paying for these window washers and sure this is going to be reflected in rental and so on but that doesn't make the window cleaner the wholesaler while the judge i answer my question yes or no in your example it is more can in your example it is more akin to a retailer well but because of the price per who the purchaser as the price in the quantity in which the good is being sold but but corporate cleaning doesn't sell the washing up one window or one floor of a building it's selling the sale of it entirely in fact more than fifty percent of its customers are more than one building a general motors i'm selling tens of thousands of trucks and almost all of those trucks are used in the business so why is that any different from the from the window players selling to building managers judge it's been our position and the case said that all of the evidence that testimonial the documentary and the statistical mathematical evidence demonstrate that there was not a bona fide commission rate that the plaintiffs were not paid commissions based on the application of the bona fide commission and so i appreciate the court's concerns about fluctuation hours work but a precondition to being caught in a commission basis is the applicant is the payment from the application a bona fide commission rate in them an opportunity to talk about that but that's the key that there's not a receipt well and that's that's what's confusing me here is one buyer that's the building owner manager whatever you want to call it there's one buyer and then and then those services are then being window cleaner comes and says ok now we clean year we claim your windows and here's our mop and here's our brush and so on so you can go clean clean them even clean court ira will then for the defendants to one of the earlier questions your honor on page twenty eight of the trial court's decision the evidence show that during the winter months when business is slow many window washers returned to mexico and then in the spring  that when they return the plaintiffs represented himself mr alvarado said he preferred to work longer days when the weather conditions were good which is a hallmark of this type of system in order to make up for the hours when business is slow and certainly i think it's rather obvious in chicago it's it's a seasonal job for cleaning especially the in chicago and even during parts of the spring summer there are wind factors or other factors that prevent cleaning and sometimes buildings one allow you to get there till nine o'clock in the morning a condominium building for example won't allow that to start until a certain time of the day so there are a lot of variables which affect the ability to work in the time to work what the case is of says specially evidence showed at the trial was that these workers are in fact paid on incentivized basis they're assigned a certain number of points for a job those points equate to dollars per hour on their union wage but they often work in the plate if in fact testified to this less hours that it actually takes them to complete the job so if you have ten hours worth of pay and you only have to work five hours or at the time incentivize you to go to the next job the next building but all of those are connected to whether or not you have a job or a sale to go to and that is the basic premise of a commission system that it's based upon a sale it's not like the collective bargaining agreement here has it over time provision right the collective bargaining agreement had a piece rate per section and mentioned overtime wages but the trial court specifically said no one from the union ever sought to enforce that right but and there was no grievance ever bought was a paid documents company provides they indicate that you're entitled to overtime as well the document reflects a comment to that effect yes that's correct but again the whether or not something the system is a commission system is there's no definition of the word commission under the act and the law says you look at what's actually happening and all of  and the plan of self admits the system he's been paid under all the time he worked there was this commission style system there was a period of time late zero seven early a wait when when switched to an overtime system some of the plaintiffs in this case decided during the case that they would not work on the commission based system and they went to an hourly system which in fact then carved out some of those and they were paid differently than the rest of the people rest of the workers within the company that also was one of the issues that skewed this price per point analysis the statistical analysis that we went through with in the trial court with judge cha along with other principal reasons for the adjustments to how we priced our customers but the trial court was very clear that in finding that the testimony of our three witnesses was credible and consistent in demonstrating that the company has used its point system in good faith to both calculate worker compensation and customer charges and if they were credible in explaining the variations in those final customer charges when attacking the window cleaner is this is seasonal thing is it's when the falklands are building their nast's or something like that or judge i only know that with that at the trial itself there was some testimony that a it has happened cites these other circuit cases including the plumbing the air conditioning case out of the fifth circuit what's your what's your response to that well i think the answer the question is is it a is it there's a wholesale and there's no description of this type of service we go in and wash windows for a price if you have a property manager that is the conduit through which you get hired that cost gets passed on to a building owner of a building owner doesn't like the service they call and you have to come back out but it is connected to a pass through to the people who live in those buildings judge daljit a very thorough examination of all the issues with respect to retail within the first one of the first rulings in the case and went through that process and there are pest control service examples computer or cable installation examples of that are cases that we've cited in our briefs but there is no evidence that there's any reselling of what we do which is wash windows which serves the everyday needs of the community which is basically then one transaction you  somebody sells and then the other pays for one service the other pays for it's it's there's not a series of in intermediate buying selling honor it is just we estimate the job we look at it in terms of what we the compensation to the workers how that and that relates to how we price it out to the customers and ultimately we if we get the just isn't really in looking at these cases i think the the this court and talked about it and i thought it was really applicable here the presumed narrow construction of the exemption is at best a tie breaker and in very close cases and not even that of some offsetting cannon of construction is in play as it normally there will be the district court here after a trial did not find this to be a close call all the hallmarks of a commission system existed here the decoupling of actual pay to hours worked incentivize pay seasonal employment pay based on sales these are not low income wage earners that the f l s a as it is is trying to protect their unionized well paid workers there was no evidence of any substandard conditions that existed in connection with these jobs and the workers were working seasonally and and under this incentive system to get to get paid what they got paid which was substantial i don't know for nothing for the us the court has judge really it comes down to whether or not the plaintiffs were put on a piece rate basis i'm sorry job replace or commission rate basis job rate workers are entitled to overtime pay while it's true that all conditions are decoupled from hours of work not all wage payments are  work or commissions job rates are also decoupled from hours of work job great workers are entitled to overtime pay and it's true that all commissions are based on sales but not all wage payments based on sales are commissions job rates are also based on sales because how does one distinguish between them because a job or a job or aid worker receives a fixed amount of compensation regardless of the sales price  commission rate workers and job rate workers their compensation is both a function of their output so that's not really the difference the difference is that a commission is a bona fide commission rate is is a is  compensation that's that's paid based upon a consistent application of a plan if you put into variables in the plan going to get the same result every time that same two variables is going to result in the same commission and that the the evidence in this reason for this difference well i don't know that i can explain what that what that the functional difference is between treating a job or aid worker in a commission worker or that some of