honour's cited to us late last week i read that case i think the issues are similar i would argue that this case has broader implications as i will address in my argument this is not a case where the williams case in the standard derive from the material man material supplier exemption can just be applied this is a  really area where there is no california appellate court authority the state of california does have as its official position that travel time is covered but i  think looking at that it is a question of great importance comedy between the federal court in the state looking at the cline and the kilby case cited in the busker case that it would be appropriate to send it to certify the question to the california supreme court i do want to move on counsel before him for we do that i know you would like us to sort of i guess here's my question i view this case as being a close legal question under california law but what is absolutely clear to me is where's the proof whichever standard you adopt i mean the context not even in there how can anybody make a determination if you assume th we actually were mediating the case when the district court's decision came out so had the district court said you know what it before the record before us we don't have any contracts we don't have any argument about whether the milling machines could have been left on staging areas or the side of troops the record is devoid of that because we brought a partial summary judgment motion early on in the litigation the bow it was cross so it was i appreciate that and it it i would submit to the court that it would have given us enough time if the district court said you know start over this is not the record is not developed enough i want that that may be but the reality is you know this is a close question as you know we've got to got some federal competence of that today one position got state laws  close questions you've got them cases they're not exactly on point but what in order to prove any of them you have to know what the agreement was what what did the parties agree to do and i have searches i don't find it i with a district judge i'd say well what one of the agreed upon and without that how can i possibly know whether the you need to have this particular standard for competition and if that had been judgment but i want to ask exactly what it was i am not sure that i agree in terms of a contract or what we would need here i mean the given it's a given you had to have the machine this milling machine i mean that's just you couldn't do the work without it correct so then you just get a question of if the workers who are actually doing the grinding up of this of these roadways are the same workers who are bringing the machines to the work then i guess it does seem to me that probably  it's defined i am not sure how i think i could address it this way the the the labor code defines the party to the contract it's in the execution of the contract it's clear that granted f and g were the parties to the contract i appreciate the contract is not on the record the material man exemption talks about third parties to the contract so it talks about and the cases that are developed have to do with the hollowing of soil and aggregates because there's more of that than say lumber but those are cases that someone is not a party to the contract would never fall under public were coverage but for the acts in the delivery and that's the integrated aspect case so williams the problem is in order to get to coverage you have to show integrated  integrated aspect here this case is different from it's different because we're talking about the general contractor who entered into the contract and that's why williams is a great analytical tool to see to it has a dictionary definition of what in the execution is i would submit that perhaps the the simplest test would be that it's direct director rectally in the execution of the contract it but if you just use that  how would you exclude things like that i've just kind of listed a few things down the tools portable toilets generations portable water lumber asphalt steel crane is on why wouldn't that apply just as well very simple if i hire a company to deliver that that's all they do they're not my employees i contact a her nor even home depot not that i don't believe they do and they just drop it off when i was a crane one of the operate  operate the generator well that's where you look and the california public works jurisprudence is very well developed and that's where you look at the travel and subsistence sections in v the clearest example of your honor is traffic control laborers the outbreak all of these cones all these barricades all of these lights the traffic control traveling subsistence determination is is found in the record at ninety to one nineteen and yet he gave the record to page one fifteen it specifically says there are two rates for travel there's two major rates the various on the field rates for traffic control depending on their experience and what they're doing and a special travel rate so the travel in subsistence determination for traffic control labor has a travel rate and a rate on the jobsite both are under the prevailing wage determination as published by the state of california the operating region in years their scope of work is that two ford there are several there is i we actually submitted three the at page two four two and two five three and this is in the moving paper in the opening brief it specifically says in the travel subsist determination your time starts when you show up to the shop and when to come back to the shop if you're required to be there no mention of a separate travel rate there for it to fall to the the published rate and i would just submit that the laborers we did submit three separate labor travelling subsistence determinations these are your general laborers that could bring generators water picks shovels at pages two sixty one two eighty three of the record in two ninety one they specifically in what's called the concrete modification and shot create have separate travel rates so  any of your times up to you know i would just submit in next fifteen seconds that it makes no sense that a labor bringing cones to a truck to a public works job are paid travel rate while an operating engineer bringing the milling machine maybe even from the same yard would not be paid when you examine the the travel subsistence classifications letters that really going to the nuance of the material man exemption that's an exception right but it's only current asphalt and it has to do with workers hauling materials employed by the contractor issue and unintended right that's correct it's but it's really it's really very straightforward this is not a busker case i'm happy to comment on it if the court would like but judge oric you know got it right in the court below been nice circuit is sent to the california supreme court is a different case and that involves the issue of a contract issued by a public authority for a two components of work the on board rail cars and in that case the focus is the contract that is that issue and whether the test that should be involved that the testing should be applied would be as the ninth circuit stated whether the work of the on boarding rail cars is integral to the operation of the completed project which requires contracts and other information to be reviewed or whether the work is integral to the completion of the field installation work on that we were trying to say it was exactly the same the same issue it was whether this one like that one involved interpretation of the law that it would be appropriate to have the california supreme court decide in here it would be a question of whether the prevailing wage law applies to workers who are undeniably working on a public works project on with respect to mobilization in travel time well your honor the workers are working on the public works site when they're performing the operation of the vehicles but the workers are not working on the site when they're hauling to and the record to look at in fact the the undisputed record that was put in before the court below noted that the contracts did not address the off haul work did not address scheduling there is no evidence as to whether or not the contract addressed the time and manner of delivery of this equipment which the court equated to a tool there is no evidence in the record of any contract that would suggest or any limitations on the transport of equipment how it was to be transported over the public roads no designated of the type of equipment or tools to be used with regard to the grinding work on the project no evidence of customer practice with regards to the compensation of this type of work the williams case didn't just deal respect as bringing it to the site but it really did deal with material and it also did not deal with the same workers who were going to be working on the project or your honor but really good night different in fact there's quite a bit of language in williams that i think supports the other side in this case well your honor i would i would i wouldn't i would disagree on fact i would note for the record as we noted in the footnote in our in our brief the council noted that if the equipment was hauled to the site by someone other than the workers that worked on the site that it would not be considered covered work you can see that during the oral argument and it's referenced in a footnote very but here we do have the same workers who had to show up at their place and that's when their time started i mean at what point would you say it when you when did it start them to start when they turn the machine on did it start when they brought the machine off what if something broke and somebody had to go get a part to replace it i mean does it go back and forth no you're out of there's two different issues there one issue is whether the work is compensable time whether it is work time for then the second issue is whether the work that they're performing the type of work is subject to prevailing wage requirements in the sheet metal versus duncan case two thousand and fourteen case involving russell mechanical roswell was a subcontractor r fabricated sheet metal parts in his shop and russ will also did the installation at the job site the focus of the court's decision was whether the work at the fabrication shop was integrated into the flow aspect again which is an isolated administrative opinion first of all the director used the standard which has never been adopted by any court and in fact is not the standard this discussed in the buster case when the court said whether the task or the the function of the travel to the jobsite is related to the work to be performed there in that instance in that instance as the court below noted even the director's opinion noted that the transportation of those workers to the job site was simply simply incidental to the work that they would subsequently perform in this case we're talking about individuals that are performing two discrete functions in one case transportation there driving heavy transport trucks trucks hauling this equipment or large tool to the project when they get to the project it's a whole different type of work that they're performing they're now operating the equipment and so we have two distinct types of work here as opposed to in current even if you look at current for some reference the workers were not performing any discrete type of work it was just an incidental transportation of the job site  me just suggest the least from from my perspective we've either got a failure approved case which can be decided in a non presidential opinion or we have enough confusion even with the fact that we may have to send this to california supreme court which do you prefer your honor i don't want the key i don't believe that there are is sufficient there is a sufficient basis to send it to the california supreme court here is my view because i do believe that williams and the sandstone case she metalworkers were says duncan provides the clear standard for resolving this case where there has been no contract or contracts so that i guess to the other point the yes my and my concern is i don't see how this case based upon the state of the evidence i don't see how this case can be resolved isn't that the evidence that you need to decide  even with the law that we have seems to me not to be there there's so many open issues you can't do that to the if they are approved that's what the district court decided effect is that the correct answer your honor i think on the record before the court here which is undisputed by both sides i think it can be decided on narrow grounds and granite rock and physical mcelroy would be happy with a resolution on that basis other questions by my coll i agree with your honor that the district court judge could of said there are open it issues and denied this army judgment without prejudice i would concur at trial that could be a judgment a defendant's favors because that's the trial here we still had plenty of time to do discovery assuming i mean obviously of good morning scary been done you put more in that's different based on the record we have do you agree that there wasn't enough evidence and here for the judge to decide the case other than the way he did no because i think if you were the party to the contract the williams analysis is only relevant to what is the execution  and you can't execute the contract without any of the tools including health and safety but you're right but you're forgiving the evidentiary issues i get your point but if you have the contract and you know what the customs and sets of but if you don't have any of that i can just add the case other than the way the district judge did it well i think you deny without with without prejudice or you who are you deny would make you'd say well you know how many evidence you made a judgment on should give another chance and give them a chance to get some evidence but will put the contracts in front of us put industry i can't decide with industry standard again this is an exemption case the burden really isn't the burden is on the work to show that they did the work the traveling subsistent shows they have to be paid for that time it is really a procedural case i leave evidence is not there i wish the dischord would have just denied without prejudice or you did but you at the travel and subsistence determinations having experience in this area the law and litigating cases where laborers traveling to job sites with materials even just themselves even just driving a pickup truck that was going to be used clearly  under the labors traveling subsistence with the different rates of pay they were going to get that travel right before it was limited to what's called the concrete modification industry now there's a general travel rate for labour's traffic control laborers doing the same on the same job site have two different rates their field rate and their travel rate and so here is a situation where operating engineers local three signed a special travel rate but decided for some reason not to give it to the state of california so i did see an issue where they're stuck with the higher rate frankly because they didn't want to share the travel rate with the state and have it apply to all