are my statement is this very simple i just want to clarify what is and is not before the court today the legal issues that are involved are whether the trust funds incorporated into a project agreement p s a have a contractual right to audit an employer who contributes excuse me who works on those projects and whether the trust funds must first rely on the giving in to exhaust jurisdictional the state mechanism before they can audit those employers the procedural issue here is whether the district court erred in blocking this to discovery or not talking about not just the refusing or failing to ahead exactly what would the discovery requested have produced that would shed light on whether yours was the appropriate or relevant contract or whether the was the two most important documents that we wanted to get with the certified pay rolls which are actually ready and sitting at the district's office for us which would have showed who was actually assigned the work what classifications the employer itself put on that work and we've shown some of the few certified hero we did manage to get you show laborers classifications and we believe for we have those certified payroll match the classifications of the labors agreement not the pipe fitters the prevailing wage rules of the state california has various classifications based on different there are classifications for the same work that correspond to the laborers agreement and different ones with different names and different rates that correspond to the five cities the ones that we throw around the few sort of high kill we the pipefitters have a different name i think they're called landscape tradesmen or something like that and different i'm out so if we can see those we'll know which one they're actually issue are you claiming or i missed your argument are you claiming there actually were labor from your union on the jobs that are being discussed in case and you want the records to discover that there were actually there's no record of anyone being dispatched from either union these assume then are employees existing employees that the employer was in obligated to insert in one or the other classification that's what the certified payroll shows jurisdictional issues i mean you're you're the trust and you're your job is to collect the money that the employer reserves out of a paycheck so that you can get the benefits and allocated your members right current and your l issue jurisdictional disputes are only prospective who will do the work we're talking about work that i was already done and we're trying to find the facts of who was was assigned the work and which is the appropriate funds for that for that indicate that something that would indicate that the employer the contractor in this case was mrs finding work that is he was actually assigning work to laborers so that your members had money that were sitting in the employer's position th should be coming to you that would be the certified hero i know but did you put any anything in the record that would indicate the sort of high payroll in other words if you have a labor cost or yeah i belonged to the union and he paid me but he's not paying the any benefits that are going t my union all we know if you just go on a fishing expedition because there's no evidence that i can see in the summary judgment this is you actually are looking for something you might be entitled that's again it's the certified payroll we're we're going to circle jer each one of them has a contractual right to audit whether they will find contributions is a different issue that we never were able to get so we're contending we don't have to show who was assigned the work we don't have to show which is appropriate that's the same thing that th court already said we don't have to show in order to get an audit in the single union situation we don't have to prove that there are some contributions do we just have to prove there is a contract that requires that and evidence of of the benefits being paid any trust funds at least in this audit period for you and then we and we would say the employer itself assigned the work to the laborers by in the certified payroll that's the assignment and the and and he didn't pay contributions to any clients of those funds those contributions are due to the labors fund so you're actually saying that members of the year union are being are being the project agreement says that that contributions will be paid to the appropriate fund and so there's a factual issue in a contract interpretation issue of which is the appropriate fine you were saying that's dissolved with a certified payroll even if these labor don't belong to you or your union membership as a matter of law cannot be a consideration in that that's that's i have twenty six seconds might as well  finish up that union membership has nothing to do with that there's no evidence of who was actually sent from the union hall the only evidence we have in this situation which we think is going to be determined if it is a certified p counsel and follow up on those points the question was asked but what would discovery have produced that would shed light on an appropriate unit and i think there's two things that we learned from  council and from the record the first is that his response to my years was speculation about what might be found that latinos netscape was not making contributions at all well the record does not support that whatsoever so here's the problem  two thousand and two but work started under the p s a in two thousand so even if you credit the declaration that he signed up with the pipefitters in that all work after that was done for the pike that or the district courts apparent oversight in not dealing either with the rule fifty six f motion or the stay of discovery it seems to me precluded that there be any evidence in the record with respect to assignment pre october two thousand and two and after january eighth two thousand drummer two points in response to that first of all with respect to work that  occurred between two thousand and two thousand and two there is no evidence that that work actually came under the p s a because the p s a has monetary thresholds such that very small contracts even less than fifteen thousand are less than twenty five thousand dollars united come under the p s a to begin with self despite the fact that there is payroll that predates two thousand to the october two thousand and two da i do not believe met the monetary threshold well we don't know that when we're together we cannot tell that we do not know that one way or the or the other which brings me to my second point which goes to the question of what is an appropriate unit but the way that you determine what is an appropriate unit under the p s a is if the union has a beef with the assignment of work it has a mechanism to contest that assignment and to go to the plan for resolutions or s not in testing at the moment is not contesting its line much so much as it's saying the work was assigned and we need to know whether contributions were made for it six motion and i think i see where where you focused on the distinction between october two thousand and two but if you think about the fifty six f as of october two thousand and two and later the evidence that supposedly would have been generated from this discovery is beside the point because ultimately if you go back to the p s a and you look at the the operative contract questions that arise you immediately get to the point you simon is made and the contractor has the sole authority to make the assignment and then if another contract or if another thousand and two i didn't i do not think the record is clear on that point rob but i would why then then then that being the case how can the summary judgment possibly stand and i would submit that you have you have to go back start with that rather than speculation that work was done and contributions on c m isn't it a chicken and egg problem because the only way that the trust funds are going to know whether war was assigned and to whom that claim of crude as of october two thousand and two and before that we're talking about never neverland it simply doesn't matter for purposes of contract interpretation what  construction trades council struck with the u s d is such that their labors recourse is to claim that there's a jersey which moves you to take that claim to the plan and then the plan would have the option of assigning that work in whatever fashion it instead and then from that point forward they would then i'd assuming that the plan was to conclude that this was labor's work then that the upon them to utilize the user because of her or her look or the potential claim for collection of delinquent contributions from the employer but that that claim there's not a crew under the  but there is no doubt in the record that there is a jurisdictional dispute going on there is a very of evidence the late both the labors representatives and the leaders trust fund representatives putting pressure on somebody knows exactly what happened between january two thousand and october two thousand and two and so the heart of my question is without knowledge of that th wasn't the district court in error in saying as a matter of law this case can go nowhere having not allowed any discovery you know your honor because a thing as you know question came off the table as at the hearing for the motion for summary judgment all sudden the motion to dismiss based on lack of subject matter jurisdiction is converted to a motion for summary judgment posing counsel stipulates to proceed in that manner and he denies it on the grounds that any discovery would be moot that it would not be relevant to the underline contractual interpretation issue ok that's the crux of  collection action without a contract you cannot sue for collection of local contributions he can't get an r v so beginning can't just go up there and sue an employer that wants to put pressure on where there's no contractual relationship there's got to be the underlying contract that sponsor right under rissa to audit to you know which is very invasive to collect contributions and that's why thousand we have no record of that fact but we do have a record to work with the signs of pipe fitters contributions were made to the pipe fitters and that the labors although they disagree with that assignment they never  question the reason why they don't have a beef is because this is the framework that there representative negotiated for them this is the world that they live in  the discovery seek and what period of time does the audit see what well simple question we asked it's a simple question and the answer is have from two thousand to act over two thousand two although it's visit because i looked and i can't find it so i'll go back and look so you're saying that the article and the discovery so it starts with documents of two thousand august to the october two thousand and two actually knowing here's why it's but we're saying that contract does give us this room where first of all the p s a incorporates what they call the schedule a agreements which is all the different union agreements of signatory unions including labor the pipefitter carpenters about twenty of them incorporates those in those agreements including ours including the labor as has a provision allowing an audit and i'm sure the high thirty's has the same vision so those are incorporated into the p s a and and any contractor who steps on the job is subject to all of those then the p s a also requires that all work that's covered by that p s a that benefits have to be paid to some trust funds for all that work so the question is how given that how how are the different person fund supposed to determine whether contributions are due under under martnez argument no trust funds can audit no trust funds could could claim contributions because they could always say no it wasn't your work we signed it to someone else how do you check that and again you know we're saying this is just the same situation as the single union agreement but with just an extra twist we're not required to show that the work is covered with their contributions or do we just if there is a contract which incorporates these record or other than the p s a that's correct and that's what we're limiting this to and that's in fact the situation with most of the contractors under the p s a and so the question is then how do we deal with those contractors how does anybody find out if they're making contributions to any trust funds if if you know trust funds are given the right to audit so we're saying all the trust funds have the right to contractual rate to audit and then if they have the wrong provisions for trust funds as ours do or incorporate the trust agreements the south two thousand three p s a directly incorporates the trust agreements that the crown were stumbling into and there's agr i mean i understand your problem but i write the current record well that the same would apply under any agreement because under the schneider decision trust funds cannot be required to exhaust any any grievance procedure and and this particular procedure is one extra thing i want to point out that that murkiness peeps arguing that we should use that we need to exhaust as a prerequisite to make this claim we are not allowed to that procedure by its definition this perspective on the word trust funds are not a party to it they can ease it and it says in its own provisions for that procedure that that it is not allowed to