Lopshire
Alaska Trowel Trades Pension Fund v. Lopshire
Opinion
Dissenting Opinion
Fernandez, J.
dissenting:
I dissent from the majority opinion to the extent that it holds that the Trust Funds are entitled to recover further amounts from Lopshire for employee work hours, which were not reported. The contrary view allows the Trust Funds to partially enforce a properly repudiated pre-hire agreement by using what amounts to an adoption by conduct theory. That they are not entitled to do. See Hawaii Carpenters’ Trust Funds v. Henry, 906 F.2d 1349, 1354-55 (9th Cir.1990).
'While I agree that the Trust Funds could and did rely upon the receipt of reports and monies from Lopshire, that is all they had a right to rely upon. Had Lopshire reported that he owed for “X” hours of labor and then sent in money for something less than “X,” the Trust Funds might well have a basis to complain, but he did not do that.
The Trust Funds gave whatever benefits they gave based solely upon the amounts Lopshire paid to them) Had the employees worked only the reported hours, their employee benefits would have been the same as those granted to them. As it is, the Trust Funds were entitled to nothing at all. Thus, they are not entitled to more than théy re *886 eeived. In other words, neither…
Lead Opinion
Browning, J.
Opinion by Judge BROWNING; Dissent by Judge FERNANDEZ.
During the 1970s, defendant Jack Lop-shire, doing business as Spenard Plastering Company, entered into pre-hire labor agreements with Local 867 of the Operative Plasterers and Cement Masons Union pursuant to § 8(f) of the National Labor Relations Act. These agreements obligated Lopshire to contribute to the various plaintiff Trust Funds on behalf of all plasterers and cement masons he employed.
In April 1986, Lopshire notified the union he was repudiating the current pre-hire agreement, 1 but did not notify the Trust Funds. Despite the repudiation, Lopshire continued to use union labor and submit contribution reports and payments to the Trust Funds from 1986 until March 6, 1991. Lop-shire made reports and payments only oh behalf of union employees, however, and did not report all hours worked by those employees. The Trust Funds allege they were not aware of Lopshire’s underreporting until late 1990 and did not learn of Lopshire’s repudiation of the pre-hire agreement until January 1991. Lopshire and the union entered into a new labor agreement in January 1993.