appellant properly classified them as independent contractors and while this court has made clear that for fair labor standards act classification cases it's a very fact intensive in fact dependent  that we go through or sometimes opponents make the mistake of going after too many things because it really sort of questions the competency of the judge and here we have a judge who was a magistrate judge for many years and in a  district judge for a while and so why don't you why don't you highlight for us the two or three or some very small number that we might want to look at rather than just assuming that for some reason this district judge the clearly erroneous findings here is we believe this this issue that the control at least as apple lees laid out in the trial and as judge counts laid out in his findings of fact in lucian's law as this control flowed from one of the welders named sam hardcastle and the issue that we have there is there was never a finding using those u s b silk factors as to whether or not mr hardcastle was an employee come in and use those but when they st hired them they brought on mr hardcastle in one of the apple lease joseph hobbs at the same time and those two individuals were kind of the initial welder and then over time they added a few more welders and i think that the record reflects that on average it was anywhere from five to six motors of the given time mr hardcastle eventually kind of moved through the ranks and was doing less welding well mr hardcastle testified that essentially pioneer started contacting him directly just because petra plex didn't have that knowledge ability and so mr hardcastle was kind of passing on to the welders hey this is when pioneer says they need to set the jobsite this the start time this is the end time you can be there whenever but this is when the  opens because pioneer controlled the site and so the other piece there is that there was this emphasis on mr hardcastle providing these drawings when in essence mr hardcastle to hardcastle testified there were a pioneer was providing the drawings what he was doing was providing a more simplified version to make things a little bit more efficient but he also testified others other welders did that as well he wasn't the only one and so this this idea that mr hardcastle or that petra plex via mr hardcastle was exerting some control over the apple lees we find to be clearly erroneous they were they were doing the job in the manner that they felt they could do best they were told the end project to complete by pioneer if there was some official see that mr hardcastle was doing that's clearly what it was he testified he never had any supervisory authority from petra plex no one told him things sent to the maintenance yard who never did any work at the shop if he wasn't doing pipe welding on site at pioneers jobs then he wasn't doing anything now he might be doing some maintenance type of pipe welding on pioneer job sites but he never will he just bought it ever went to the maintenance yard never went to petra plexus shop mr hobbs testified he went to the maintenance shop one or two times and you know hobbs with something to do he was given the opportunity to go to the shop to do that he was not directed to do so which is why mr feeney never went because mr feeney wasn't directed mr feeney just chose not to that was a choice that mr hobbs chose rather than to go find another you know oil services contractor to work for to fill that gap he chose to stay at petra plexi and go do that ahead you know one or two times as opposed to completing the pipe they don't have time to contract with anybody else to do work on and to work for this one particular person or one particular company and they don't sound like contract and come to contractors  honor that the issue is yes while the work was going on they may not have had i can see that there was there was likely not a lot of time in any given day while they were not work for three years and then work from were in six months how many contractors they had were these welders because that was about five percent of their business it was nothing they had done prior to two thousand and fourteen so they brought them on their contract when they did not have signed contracts of the individuals but i will note to you to your honest point a few moments ago while they may not have had the time during a specific job that they're working for petra plex there is evidence in the record that they have the ability to choose and work for other individuals in fact mr feeney worked for petra plex for six months and then left the whole point being he wanted to find a contractor closer to home as he did not live in the middle and area he wanted to work less because plex had quite a bit of work he was gone for a nearly two year period they came back for six months mr hobbs took five weeks off because his welding truck wasn't working and the triplex did not provide that type of equipment so he took five weeks not to work ultimately elected to incur the cost of one hundred and eighty dollars a day to rent a welding truck so he could begin providing services to petra plex again so while there may not have been that time in the day you are correct there w the price that they were paying and mr feeney testified that's kind of the nature of what he did was he traveled around the country finding the vendors that he could work for that paid the best or had the best jobs going on and it was known that petra plex was good because they had consistent business with pioneer and so within the going to welder community they knew we can always find work if we go to petra place which is why mr feeney came back and while that there are some in dish make it sound like in an employee relationship we believe this is very similar to the parish case that this court just decided earlier this year in february i mean and in that case very well received this record clearly  it seems to me i mean what we're talking about really is a legal issue and supported by certain factual historical facts and i don't see where do you dispute here  the district court found that they the apple lease could not refuse work and that they were disciplined for being late to work it was the evidence of that and that and that's my point the evidence that we have is that it was a hypothetical on the apple lease part they evidence of your of them refusing work your honor yes mr bridges the president  mr bridges testified in the trial that mr hobbs one of the abilene refused a project and he suffered no consequences mr bridges simply found someone else to do that project and mr hobbs remained a contractor and continued to perform work for it was exactly the same thing there was testimony from one side testimony from the other and what the court pointed out there is that the district judge made no credibility determinations there were no there were no overt credibility determinations that this this witness was less believable  witness and the court this court in the broch case went through and said this is evidence that was presented that should be considered when deciding those elements and that's what we're asking this court to just to stick with today's there is evidence there to as the fact finder had the job to to make those determinations again i would just direct to the bra case where same situation was a bench trial where the judge was the one making those factual determinations and in that case they still went through and determined there were some things that the judge didn't consider that should have been considered when making a determination of that independent contractor employee classification there were some things that the judge relied on too heavily the should there's ninety three terminated with your case sure as i said i believe one is that they could not refuse work when there is evidence that they could refuse work and did refuse work and then parties that kind of goes to another clearly erroneous finding in that judge counts and in the findings of fact and conclusions of law one of the findings was that mr hobbs was terminated for arriving late mr hobbs actually testified that's that's not the case mr hobbs stopped working for petra plex because he and mr hardcastle got into an argument about mr hobbs's attitude and as a result mr hardcastle said i just can't use you anymore and that's the the reasoning that mr hobbs i want to work there wasn't it wasn't so much disciplined they did not get disciplined for arriving late it's just that they were sent home they couldn't work and essentially what it was it's similar to the parish case where in parish they employed the workers were found to be independent contractors even though they were told where to report when to report and had to get permission to leave the job site even with that this court said they were independent contractors because they still control the army and that is you've got to get is in that control piece the issue was that those findings that they that they had couldn't refuse projects that's not true there is there is evidence for mr bridges that mr hobb did in fact refuse a project and suffered no repercussions there is in fact evidence that mr hobbs left for five weeks that's refusing for he's not working projects when he's gone for five weeks mr feeney left for two weeks and little except when it comes across to exceptions i think to my point is that i think there are facts on both sides that's the nature of all of these cases what were the the idea is in these cases we want to give some sort of guidelines for future employers so they can figure out how to properly classify and strive to comply with the law and in this situation we've got the parish case which we believe has such remarkably similar facts and that finding was independent contractor that's what we feel like this court as this court did in the and went through piece by piece element by element and found that it was an independent contractor type of situation and i'll yield to my rebuttal if you save your three minutes for a bow thank you mr thank you  testified it was not a judge can also had numerous documents in front of the month summary judgment and said you guys are on different planets i need to have a trial to resolve the fast the the factor that was most impressive to me  be half of the of of the company was the fact that these the these plaintiffs spent huge amounts of money on what  generally call equipment you know course what i'm what i'm talking about some of it might go beyond the word equipment but it just seems to me that it looked like they actually maybe spent more money than the company did and that normally would be an indication of an independent contractor mr pascoe didn't have time to address that but i'd like for you to address yes or your honor so they did spend large amounts of money on a truck and  spent money on a welding machine to go on that truck but if you look at it i spent large amounts of money going to law school mechanical engineers built large amounts of money going to engineering school so one of it was a truck and normal people can't take the truck off others were camper normal people can't take living expenses all but because mr hobbs was always an employee until he was assigned to be an independent contractor he was then his accountant took the expenses off he didn't take those off prior because he was an employee the the fact of the matter is judge can also look at all these factors and i will go back to the relative investment the court does say that you look at relative investment and that's a consideration however in the oil field it also looks at it and say you look at it on a job by of the investment but i think in this case petra plex bit more on the jobs in the plaintiffs did now they didn't spend more on welding than the plaintiffs did right and the plans were weldon's and appointed and the plaintiffs were welders were welders on a project where there was a whole group of people working so essentially what happened here let's say you had a piece of equipment in this room in front of the court room and a piece of equipment in the back pioneer said we need to get those two pieces welded together connected mr hardcastle who was the de facto supervisor of the group he took the planes and he drew exactly how to get from up here the back here so you could have gone down this trail you could have gone this way gone that way but he made the planes and he gave them to the welders and said ok here's what you need to do and system would be an independent contractor  contractors hired to do a job at a particular plant and not in my mind and he is told and given instructions about what the principal of the contract wants done and i won't sit down and the incoming contractor does the work and in this case they did do the work on a daily basis and they were assigned different jobs each day or every two or three days or whenever they finished a reporting may be assigned another job so it's not like they bid for the job on a project by project and say ok we'll well this up for you for two thousand dollars a petra plex testified in the record they did have some contractors who did that but in this instance every day as i think you question earlier they were assigned a job do this for if they didn't have something to will that day they were sent to the shop they were sent to make his products i mean projects they were wrong call they were called off what they were weld and say wait a minute we need you to go over here  three records show how often that occurred that it occurred occasionally he did nobody gave a specific number of how often that occurred but that did that did occur mr hobbs testified that he did when regardless of their certification or regardless of what they did except same flat hourly rate for all of you raised a question about the money that made people in your field work long hours even the rest of ballots making one hundred and fifty thousand dollars out so there was a credibility determination that had to be made and judge made that determination who we believe he put that into findings of fact as you the court is reference that the standard is clearly erroneous with regard to the the question at one point where the th circuit said well that was clearly wrong yes the question was did you always follow the owner's standard retail process three of the operators said no ten of the th circuit said that was clearly erroneous with regard to display signs one of them testified that he altered the display of the fireworks and six of them testified that we always displayed it lacked the owner say here we are disputing the facts here on almost everything almost everything that the employee said the owner said differed and there were very few undisputed facts and judge can assess why he had the trial did make it his term nation about the facts we cited in detail in our brief support sixty eight dollars you'll support in the record for each of the findings of fact that he made when he then went to these conclusions of law he looked at all of the cases it had about he looked at rome a show he looked at carol he looked at cromwell he looked at to vault any looked at parish and he made his conclusions of law based on the findings of fact based on all of those cases if there was a point did he need to differentiate he differentiated those points but this in a case where he misapplied any law and when he had the law in front of him and he discussed the law in detail in each of his conclusions of law and findings of fa he said about the fact that they expended significant amounts of money in connection with their work and that they are considered themselves independent contractors because they took deductions he did two things on their own the amount of money that they spent he ruled that as the th circuit city specially very few look at it on the job basis not just welding but on this entire job and he failed that the company spent more money than the plaintiffs but he didn't give that very much weight in his determination because of the nature of the oil field and the nd point was about the tax and about the taxes he looked at that and he said as the th circuit said in numerous cases the employees what they consider themselves is not relevant employees can't waive employee status and just because they filled out their taxes as independent contractors is not controlling making them independent contractor and again i go back to hobbs he only filled out his taxes as an independent contractor because the company treated him as an independent contractor once the company did that and moved into it i see status that is how he had to fill out his is tax returns he didn't have a business set up he had not worked for anybody as an independent contractor didn't have cards did not go solicit work he was a welders helper and they get paid substantially less than a welder as much as the nice ones they classified as an independent contractor he has to pay his payroll taxes when the the employee both sides of the payroll tax and exactly and there is testimony in the record where he says he really didn't know if  you know and this court history asked that the that the findings of fact should not be overturned the list clearly erroneous i believe that this case falls closer to the home wall case then the the employees were given steady and reliable were over substantial period of time and they worked only far the same employee whereas in the carroll case it was on again off again project by project projects lasted one day to one was only six weeks the most employee was there was sixty are the most of the laid employee there was only sixteen weeks they were given a detailed play him and they had to make the plan work actually there was there was actually done testimony about industry practice mr hobbs testified he'd never been a independent contractor mr feeney testified that he had worked as an independent contractor before but there and i and i think the fact that you know we've been a long time between lawsuits about welders the it osho is that the industry is getting along just fine with however they're doing it if some people are truly employees did have been a contractor on a project by project was not there was only testimony that there were other welders there were not well there was there was a welder who was treated as an employee but there was not testimony about what the other independent contractors did whether they had was one time he took a vacation he asked him two months in advance if you could take a vacation and another time his truck broke down even when his truck broke down and came back to him that the company wrote him a letter in his damages against the mechanic saying he missed work during this period of parish is different than this case because in parish the the work was actually signed by staffing company a staffing company in parish called up and asked do you want this job and the employer or the alleged employee would say yes or no the employees at least employees in parish have businesses set up one of them had a goat farm said they took it they were free to refuse jobs they took the jobs on a job by job  basis i think in oral argument although i didn't see it in the record in oral argument the attorney for premier said that there were several weeks between jobs that they work for other people they had the ability to work for other people i'm not sure if they did in paris or the real test is do the or the alleged employees economically dependent on this employer in this case while they work for him they work they work for no one else they didn't have time to work for anyone else the council makes a point well they could have worked for someone in the breed but the court has already looked at it and said it's not what they could have done it's what they actually did and given the hours that they were working they really didn't have time to work for anyone else we as a practical matter this was their employer you couldn't tell the difference between them and the other rouse the ballots on the crew that was working on this project  and finally with regard to mr hardcastle he testified he kept their daily hours he gave in and one occasion the record shows that he told mr hobbs you can't bill ford to that five hours today i'm cut you down to four hours today i'm only allowing you to bill for instead of five elevator they were being paid by the hour were they not yes they were over someone needed to take to keep track of their hours that i don't think that cuts one way or the other i don't think it does that's completely consistent with being an independent contractor you're charging me for five hours but you only did four hours worth under our agreement so that's all i'm going to pay you for that's well i would think an independent contractor would also bid on the job by job and say here's how much i'm going to charge you for this and petra plex did have the concrete company that they had out there it's a new record they did have a concrete company that would say ok we'll build this concrete pad for three thousand dollars and it was up to the concrete company to do more or less than that you know try to get in and make a profit off of the only way these welders could make more profit was work more hours you've only got three minutes so you need to focus on your strongest points sure your honor and i think part of the problem is this this consistency in the decisions because  mr milton burke points out that he felt cromwell was more appropriate here rather than parish but prior to this court deciding parish mr member was relying on the district court's decision in parish because it was so factually similar and i think part of what was discuss what's good for the goose is good for the gander because in this case you know mr hobbs testified when it came to the discipline regarding the control of whether he had to be on the job site his testimony was that maybe or possibly he would be terminated for missing work he did not have any evidence that he suffered any rep or cash repercussions for missing that work there was no control when it came to the job site mr hobbs controlled what jobs he wanted to do when he wanted to work pioneer controlled the beginning in in being time for the job site because they controlled physically controlled the site it was not a property that petra plex own or control and  much like in parish no apple e testified about any discipline that they suffered regarding their or their work other than if we didn't arrive on time we would be sent home but that happened a hand times but again in parish with the same thing those workers could not leave unless they asked for permission so obviously and you know it it stands to reason if they had to ask permission to leave they would likely be disciplined if they left without asking for that permission so we just don't have that here and i do want to talk about the investment i mean there is that whole investment issue in that the the apple lease had significant investment in their tools and equipment whereas the only thing that petra plex was spending money on where the consumables which they testified pioneer reimbursement for the settling gas some oxygen the welding rod maybe some buffing pads but very small investment and while apple is want to focus on the entire project i think the cases in tivo and perish had the same thing in the train case out of the southern district of texas say that you look at the specific job the police were performing at least in carroll it was a pipeline construction so those pipe welders were were that's the whole job whereas in this there was a lot of other activity happening on the job site that wasn't