with the facts what tripped me up in this case is you have to do some reverse engineering about whether the declarations were considered or not whether they were admitted it or not because we have to figure out whether there disputed issue of fact what's your take on what the district court did with that plaintiff any well the question i think that that we're wrestling with is whether the district court held or did not hold that the declarations of your clients were  inadmissible and i know you wouldn't agree with that but we're just right now trying to figure out if the district court without explaining itself completely decided not to consider those declarations for the reasons that were argued about there not being a verified translation and so on so how do you read the record we did not have any issue about the translation issues and then that these  from korean into english because your clients don't speak english and so there's no explicit ruling from the district court and we're trying to figure out if in fact the court nevertheless ruled that they were  except that he accept those declaration unfortunately and so it's a war took the what's not being clear about that in his ruling so he was saying to the stand reasonable profit we're trying to figure out what that means i don't understand what that mean that that's why we are having a hard time understanding you know you are so busy here says and there was no discrepancy no difference between the declarations on the deposition testimony and also i mean th there was no difference between the depth declarations and the deposition testimony generally speaking that is biased and you are so they have been always consistent about their stories and then if there was a lot you want to say no clear there was no real issue was whether about the certification issues or we were just doing it as we have been doing all the time intensive question and or sank intensive in a seems there's a dispute a fact if one considers the declarations that's why it's so pivotal and i speaking for myself but that's why it's so pivotal to know whether or not did the district court have any other admissible evidence that went to the issue about what functions your client were actually performing c p r is i'm sorry they have this is called of our how like what temperature they really in fact what the they do is the question so in that sense that's totally irrelevant question or maybe but so irrelevant to the question of what they actually did it's really intended to do right and they had nothing else so the district court had nothing else are based of what they have produce the in the sas and then for which i laid foundations or we have tons of breaking written documentary evidence is that will show what they were doing if you want to look at the p p r and then th really did and the so called operators non managers they are there are signatures hours of appearing on the same papers it's like she did work and they didn't work so there was no really that difference when it comes to that their daily like portion of the argument of the first being judge kristen's question that plaintiff's declarations whether or not the court ruled on that issue i think it's clear from the court's statement of decision that the court in fact did not rule on that evidence or objection either way whether to sustain it or would or to overrule it the court instead concluded that it didn't need to reach that question because the plants declarations were not material in that they did not directly contradict the management duty declarations in the management duty but they did but they do seem to create some potential factual issues on some of the criteria of the appropriate exemption what i found confusing in the district court's order was  first to the extent that the court has relied on evidence to which the parties subject of the court has overruled the objections and as to the remainder of the court finds it unnecessary to rule because the disputed evidence was relied on and so i can't parse that to figure out whether that means like the judge did or didn't consider  orations because it may make a difference to the outcome and so i'm trying to figure out what we should do with it because there was an objection large to with the district court on that ground that there were about properly authenticating the translation so what are we supposed to do with it well i think this goes to that materiality question i think that the court concluded that the portions of the plaintiff's declarations that address to the management duties question fell into one of two categories either they contradicted wells spent factor just speaking for myself excuse me i have difficulty with a stop all ground because the immigration documents were a statement of intention as to future actions which are not contradictory i mean you may intend to play tennis and you know you hurt your arm and you don't play tennis but they are not contradictory and so are leaving that had already started working at unocal your owners will note that section k refers to their work experience and their current job and refers to their job duties at you know caps now at the time they're saying the form they verified in the penalty of not find these to be material there was no specific ruling as to the evidentiary objection in question so is it your argument counsel that even if the court considered those plaintiffs declarations the declaration do not raise an issue of fact they raise certain factual issues that do not constitute material issues of disputed fact finding the purpose but they characterize their duties very differently and that seems that goes to the employer exemption so i'm trying to figure out how is that not a genuine issue of material fact or i would agree with your honor's statement that it's a characterization it's not a statement of we did different thing they  declarations to a certain extent that they did some training that they did some supervision there deposition testimony is also clear that they delegated work to most of the operators and they don't dispute that they don't deny it what they do say in their declaration is we spent a lot of time on menial labor we can't quantify how much that was we think it was most of our time but that by itself is not enough for them to put all of that combined i mean how how does that not create a genuine issue regarding the employer exemption i mean it seems i mean it's really interesting case because seems at one point your clients are acknowledged that you were going to need to proceed to trial because you didn't think there were any questions of material fact or client didn't looks like on the eve of trial the judge called people in and said you know requiring you to file motions and you did it and then we have this order suspect here what's going on i just i can't make out what the order is regarding the objections i can't make it out and you just acknowledged that he didn't rule on those objections it seems to me that there is these competing descriptions of what their job duties were i don't know how this avoids going to back to the court but i'm speaking for myself but i want to give us the best opportunity possible to to respond to that sure your honor i think the controlling case here in this circuit is baldwin versus to the park in which one baldwin versus developer gains and in that case this court that just because and i want to emphasize the key point in plaintiffs that quotations the key disagreement if there is one about the nature of their g d p their duties is they say yes we did management work yes we did some training yes we did certain amounts not we did a lot of manual work to a side by side the other employees exactly and the baldwin versus trailer park ins case says that's not enough to get outside the executive exemption and i ask you another question is it your understanding of the legal issues that are in front of us that the plaintiffs are arguing about other aspects of the exemption as well or is there so all our human power bout the nature of the duties well i think plaintiff's briefs clearly address because there's only i think one of the plaintiffs that testified directly if i'm i may be misremembering asked about having recommended someone to be hired to rehired who was hired to rehired and what what  is why is summary judgment in your favor appropriate on that element i think the answer that your honor is that all three of the plaintiffs acknowledge that they were regularly asked by general manager sharon to give evalu of their subordinate operators and those evaluations i think mr katz different evaluating and hiring and firing are not necessarily linked that's true i would point also however to a document that's in the record in which which is sort of a notice to one of the operators of its name is nelson contrary as i recall correctly in which one of the plaintiffs mr kim signed a document that admissions by the plaintiffs that they regularly were asked by chairman addition provide this feedback that should reach the point where discipline was necessary should reach the point where someone needed to be fired they were the conduit of that information to general manager s decisions of the park had discretionary power in managing the park and work pretty free of supervision here it seems like and if we take which one we have to the facts in the light most favorable to the decision making in a caps because of this general manager shim met with them every day to give them you know didn't tell instructions and apparently mr simpson act on the plaintiff three to four times per day so i'm trying to figure out how baldwin helps you i think the answer to that is that the plaintiffs are comparable to the plaintiffs in baldwin in that during at least the nature they were the  highest supervisors on site the highest position of authority on site no one was watching over their shoulder at that times that those times and they had a great deal of discretion with controlling brakes and timing and delegating t operators and all the sorts of supervision that they were expected to do as managers what are those done and that sounds like a good argument for the jury i mean i just i don't see how that oh well maybe here at this stage when you have to look at it in the light most favorable to the plaintiff but i'm just i wanted to hear what your best argument was well it's more than it's more than an argument for the jury the fact that they were unsupervised at that time the fact that they did delegate these t stoppers that they did control breaks those facts are unspirited and those facts by themselves are sufficient to bring us into the and it baldwin type situation where you have an unsupervised manager who is controlling and directing figure out whether those declarations were admitted are not right i understand that and your position seems to be it even if they were admitted you win well i think that's right but i wanted just to return to that point i think the issue of whether or not the district court to determine whether in all the circumstances there are considered sufficiently reliable or maybe additional information can be presented to the district court on reliability authenticity and so forth  why would we do that well i think again the answer there is we are here on appeal having not have a ruling on that will that be mean that we have to make the district court rule but i don't understand how we c an evidentiary objection well in any event i don't think it's i don't think the record reflects that the court ruled on this objection i don't think that's the first your counsel seemed to suggest that there was this really wasn't teed up that the objection on the basis of the translation wasn't really engaged below is that right that's totally wrong and evidential objections pacifically raised in writing to the court and this issue was clearly teed up not least of which by the employers so that tell me how they're not employers i think that the answer to that is that the joint employer doctrine is designed for situations where the economic realities are such that the person it's almost like i not but it's almost like a species of the alter ego doctrine and that the individual is the same as the entity that's employing the person and for that reason there's four factors that are supposed to be considered and here you have in most one or two that we supported for either  dippers ition he explains that the president makes decisions about promotions and unit caps i think that's a p r zero one eight one nine and it looks like defend it shim consult with defendant kim before he fired the met with plaintiffs daily to discuss problems and give them instructions he states that he visited the production floor plainness work three to four times a day and he said states that he sent plaintive the warning letter after they failed to report to work the four factors to each president kim it's true has some economic connection with the company through his status as a indirectly fifty percent owner but president kim it's i think undisputed was not sort of the day to day control of schedules and management which is that's the factor that's supposed to be considered here that was general manager shannon and he doesn't have that same economic control of the company neither of them managed the employment records they were not the keepers of the personnel file which is the other major factor so i think where at most you're talking about one or two factors applying here the court was correct to conclude that this is just is not a situation where the economic realities are such that these two individuals could be deemed a joint employer along with this sort of larger more managed enterprise  was what they were supposed to do but they failed to do and then they got warnings and also of the upgrade of the what they were doing was like what are the so called operators were doing according to you like i rather so that's generally the case so it's like seeing a manager in the west for you know i mean if i'm sitting in the restaurant i sometimes think about that who's the manager i'm on the service there is one manager because president usually designates one but when he comes and what the actually do is all about they are in fact serving a lot of times and then so maybe the so called the manager what is not really primary duty