service or whether he was in business they're in business for themselves as was the case in agger bring these are material facts those facts among many others are in dispute making summary judgment inappropriate and requiring this man to be remanded for trial as excuse me at just at some point during your eight minutes if you would focus for me on salim and why this is different from selling place yes or yes i'm going to go into that right now the lower court st fi on the controlling factor it was from the united states department of labor and it's very instructive is there's a business may have control where for example it requires a worker to work exclusively for the business is about working for competitors and inflexible shifts or work long hours that is impractical to work elsewhere this case is nothing like the lean to remember black car limousine drivers who could work as they pleased could refuse assignments without penalty and as this court noted eight times in that decision could toggle back and forth and work for a different company so this could fight in the absence of a non compete as showing that the company security jobs or really eight years he was a distributor but there is no bearing on whether or not he has a claim on me if i was say or he's an employee of bimbo and if it was me see makes it clear this economy and other economies people have with for selling some other product out of his truck but it was or could was open it ships right that's correct your honor however the record shows that even george trooper who worked as for bienville as an employee he tried to be unilaterally  overturned that was one of the issues can people work for other people perform the services like france testify that he couldn't hire people to some of the services because it would eat away as profit normally when you hire the people as an independent owner it's because you've expanded your business to a level where you're standing you're growing your revenue these drivers who work full time they had to hire people just to cover vacations if mr francis was sick his daughter was in the hospital he got a letter because he couldn't find anybody to your list place so is he going to breach letter from what's supposed to be his agent he's the principal in this relationship from allegedly his agent who then said you did not make a delivery therefore you're not in compliance with your contract fix that problem so he was able to i mean he could have expanded a lot more you know more territories he could make arrangements for other people to manage all that sounds like  economic realities what he didn't do that matters not what he could have done that matters but it doesn't change the very clear of that craft their distributor in such a way that gives them control over product pricing placement well that's that's incorrect as wesley that dance to do with smaller customers such as gas stations and delis in other words the prices were set by bimbo the in for the institutional customers are prisons and schools these are allegedly they're not his customers and what happens is bimbo builds on these institutions and artificially low prices we have a confidential appendix the sales reports are in their contracts are in there and then mr f get a scheduler posts in the warehouse they have to deliver the products at times in places directed by the defendants not even the prisons if there's a problem the prisons or schools communicate with pinball member tells friends and trooper what to do control contractually and in economic reality over every significant are of the actual job duties that they opt out of the agency agreeing to see clauses by contract  a nd is a bit that's not necessarily a function of the contract as much as it is the fact that you have a state purchasing agent who wants to deal with eleven dollars supplier so it's but but that doesn't make him an employe through the back door because the state somehow has these requirements and respectfully i disagree it's the state has requirements to bid for contracts and there are rules to for defend those rules to the plaintiffs who have no choice they have to if i'm an independent business owner i can deliver what i want to i can go outside of my geographical area i can go to customers in the institutional bent the rules of the contract themselves don't allow they're there for business they're not for individuals so he agency reputation ribby down and defends couldn't ask that question during depositions when asked about the chip it was like a shop right or wrong or something like that they testify that the businesses your honour's may please the court i'm david salomon's on behalf of the elise the district court properly applied to factors set out by the supreme court and silke in this court in saline and looking at the facts in them in the light most favorable to them it correctly held the could distribute hers are independent operators and not employees so it makes clear that the ultimate concern is whether it is a matter of economic reality the workers depend upon someone else for the opportunity to render service or are in business for themselves and here it's clear they were in business for themselves for three primary reasons the st is the long standing course of conduct and understanding between the contracting parties is undisputed that the plaintiff selected and purchased their distributorships or routes with substantial investment and with the understanding that they would be running them as independent businesses they entered into distribution agreements with being bought with the intent to maintain their role as independent contractors for all purposes they managed their businesses for many years sometimes buying and selling rice to additional routes to grow their businesses and they filed product returns for years reflecting their status as independent business owners and not employees that sit in course the pond up the remaining years reflects the economic realities of their relates far better than playing this belated efforts to recast the nd turning to the silk factors those factors especially the st three degree of control opportunity for profit and loss and investment in the business and degree of skill and independence and this overwhelmingly support independent operator status each distributor deciding which routes to expenses associated with there if three big ships decided whether to hire workers and who to hire they bought being both products outright and made profit only by selling the product outlets in their area at a higher price and  their profit and the value of their routes as assets were subject to many market forces including competition managing their expenses their ability to add new customers and and the prices that they were and other terms they were able to negotiate and even with chain outlets if triggers were free and did negotiate directly with outlets to set or modify terms a good example of this is the one dollar general outlet that true for identifies as being unprofitable on appeal i would note that appellant's identifies no one profitable chain outlets below and only raised this on appeal but true for himself made clear he approached the outlet directly and it lay out how a product is to be displayed in the stores or any agreement with those chain outlets that he himself made his own judgments about how to display the items to ensure maximum self so even with regard to change there's a substantial amount of control and opportunity for profit and loss on the part of the balance and then the rd main point i would make is that there's no need for email and here to resolve undisputed fact disputes if they exist in the distributors favor you are still left with the legal conclusion that distributors operated their own independent businesses and were not employees mr thomas yes i guess one of the questions question the the st point i would make is that this court and others have recognized that this factor the that the how interval of the services are to the functioning of the business is one of the less is important to bimbos business bimbo do it as a general matter as in the business of manufacturing baked goods for market and then b s b d is primarily in the business of selling  and then managing the independent distributorship rights that are provided for this business neither is primarily in the business of transportation as was the case in selenium so well this factor i think you're right and we do not deny that it's very important to be in both to get these products effectively sold and distributed and displayed in stores that that factor still does not support employee's status in the revenues come from institutional contracts or other contracts that are essentially negotiated by your client and so therefore the the terms of clay are pretty much dictated by you as opposed to the driver and the ability to negotiate with the purchaser several responses to that your honor first the percentage of revenue that comes from change doors versus what i refer to often as cash stores of the smaller entities that the distributors have the right to go in negotiate all of the terms them selves they're sort of entirely in control of those relationships but the ratio obviously depends on how active the distributors are in pursuing those opportunities dance and went through for testified that the percentage for him over the twenty or so years he ran his business contract is very clear that not only do they have the right to revoke that but even apart from that and i think this helps explain why the appellant's here didn't bother with any revocation they have the right to negotiate directly with any that's not true of the institutional customers as well so it's as a matter of the contractual rights and the relationship between the parties here your honor i think it is the same because those institutional clients are treated as change the only agency that's created by the contract is for chains and they are defined in the agreement in a particular way so that when there's more than one outlet they're considered to be a chain but it's good local and state laws that require only one step price and not repeated negotiation the other thing with regard to those institutions just keep in mind your honor those are sort of drop at the door deliveries there's no staging of products  institutions would come in and out of his route at various times over his years of running his business and he was happy when they came back because they brought more profit so it's just a matter of the  limitations on further negotiation but they had a contractual right you guys thanks i was just going to ask you whether then the earth labor law causes of action were decided as a matter of supplementary or supplemental jurisdiction i mean there's a state law of courses of action yes your honor i believe they were dismissed on the merits here as an exercise of so yes i do agree with that but i wonder i wonder whether i mean so often we see cases not necessary just like this in which the federal cause of action is decided and they will the district court declines to decide the state law cause of action i gather and i'm assuming that in this case the very much an assumption that the district court chose to decide the new york course of action and was not required to and i'm asking if that's right or not because i do believe that he's right i'm not five aware and  my friend on the other side he correct me if i'm mistaken with regard to the record here but i'm not aware of either side urging the court not to exercise a supplemental jurisdiction and jurisdiction here i mean how the parties diverse s and that the critical inquiry pertains to the degree of control and and i don't think there's a single case that's ever found a difference in terms of independent contractor status on the you know the question is whether we know enough the questions whether we know enough to know whether we should do that or not because it was then i don't recall it's being explicitly addressed although in other cases like this in the  the point there is that this would have been argued by being just simply made a decision on his own to decide that i'm going to this is what the company does in there not integral so it clearly made that factor up and that was one of our our points