Alaska Trowel Trades Pension Trust et al v. Rady Concrete Construction, LLC et al

Filing 46

ORDER: re Cross Motions for Summary Judgment 34 and 20 (see order for full details). Signed by Judge Sharon L. Gleason on 11/02/2016. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ALASKA TROWEL TRADES PENSION
TRUST, ALASKA TROWEL TRADES
APPRENTICESHIP & TRAINING FUNDS,
and the ALASKA LABORERSCONSTRUCTION INDUSTRY HEALTH &
SECURITY FUND
Plaintiffs,
v.

Case No. 3:15-cv-00061-SLG

RADY CONCRETE CONSTRUCTION, LLC,
and RONALD WILLIAM RADY, JR.,
Defendants.
ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT
Before the Court are Plaintiffs’ and Defendants’ Cross-Motions for Summary
Judgment, at Dockets 20 and 34, respectively. The motions are fully briefed, 1 and oral
argument was held on August 11, 2016. 2
BACKGROUND
Plaintiffs Alaska Trowel Trades Pension Trust, Alaska Trowel Trades
Apprenticeship & Training Funds, and Alaska Laborers-Construction Industry Health &
Security Fund (collectively, the “Trust”) have brought this suit against Rady Concrete
Construction, LLC (“Rady Concrete”) and its owner, Ronald Rady.

Rady Concrete

entered an agreement with a labor union. Pursuant to that agreement, Rady Concrete
was obligated to make certain contributions to the Trust on behalf of its employees. The

1

See Docket 33 (Defendants’ Opp.); Docket 41 (Plaintiffs’ Reply); Docket 39 (Plaintiffs’ Opp.).
Defendants did not file a reply to Plaintiffs’ Opposition.
2

See Docket 43.

Trust brought this action against Rady Concrete under the Employee Retirement Income
Security Act (ERISA) to recover required contributions that the Trust alleges were
wrongfully withheld. 3
Many of the key facts in this case are not in dispute, but some are insufficiently
developed at this juncture. Rady Concrete has done construction work primarily in the
Fairbanks, Alaska region. 4 It is undisputed that in 2009, Rady Concrete entered into a
“Compliance Agreement” with Operative Plasterers & Cement Masons International
Association and its Affiliated Local Unions. 5 Pursuant to this agreement, Rady Concrete
agreed to abide by a Collective Bargaining Agreement (CBA) that was incorporated by
reference. Also not in dispute is that on the Compliance Agreement are handwritten the
words “Single job agreement AHFC Fairbanks Site Improvements.” 6 The parties do
dispute, however, the legal import of this handwriting.
The parties agree that subsequent to the completion of the AHFC Fairbanks Site
Improvements project, Rady Concrete continued to make some payments for fringe
benefits as contemplated by the CBA, but ceased making those payments after
December 2014. 7 And although it is undisputed that Mr. Rady himself, acting as CEO of

3

See Docket 1 (Compl.) at ¶ 17.

4

Plaintiffs’ Motion is limited to establishing liability against Rady Concrete, and does not seek
summary judgment against Mr. Rady. See Docket 21 at 2.
5

See 24-1 (Ex. A, Compliance Agreement) at 1; see also Docket 22 (Aff. of Thomas Frohlich) at
¶ 3.
6

So much is plain on the face of the document. At oral argument it was suggested that another
copy of the agreement exists without this addition, but neither party contends that this other copy
is the legally binding document.
7

See Docket 22 (Frohlich Aff.) at ¶ 7; Docket 23 (Aff. of Gregg Giles) at ¶¶ 6-7.

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Rady Concrete, signed some of the many remittance reports that accompanied these
payments, it is also undisputed that he did not sign them all. 8 But the parties again dispute
the legal consequences of these undisputed facts.
Also uncontested is that, as a result of these payments, the Trust has provided
certain benefits to Rady Concrete’s employees, including to Mr. Rady himself. 9
DISCUSSION
I. Jurisdiction
The Court has jurisdiction pursuant to 28 U.S.C. § 1331 because Plaintiffs’ claims
arise under ERISA, 29 U.S.C. §§ 1132, 1145.
II. Standard for Summary Judgment
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary judgment
if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” The burden of showing the absence
of a genuine dispute of material fact lies with the moving party. 10 If the moving party
meets this burden, the non-moving party must present specific factual evidence
demonstrating the existence of a genuine issue of fact. 11 The non-moving party may not
rely on mere allegations or denials. 12 Rather, that party must demonstrate that enough

8

See 24-4 (Ex. D, Remittance Reports).

9

See Docket 23 (Giles Aff.) at ¶¶ 3-5.

10

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

11

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).

12

Id. at 248–49.

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evidence supports the alleged factual dispute to require a finder of fact to make a
determination at trial between the parties’ differing versions of the truth. 13
When considering a motion for summary judgment, a court views the facts in the
light most favorable to the non-moving party and draws “all justifiable inferences” in the
non-moving party’s favor. 14 When faced with cross-motions for summary judgment, a
court “review[s] each separately, giving the non-movant for each motion the benefit of all
reasonable inferences.” 15 To reach the level of a genuine dispute, the evidence must be
such “that a reasonable jury could return a verdict for the non-moving party.” 16 If the
evidence provided by the non-moving party is “merely colorable” or “not significantly
probative,” summary judgment is appropriate. 17
III. Liability
The Trust maintains that Rady Concrete’s liability is premised on either the original
June 2009 Compliance Agreement, Rady Concrete’s subsequent conduct, or on the
remittance forms that accompanied subsequent payments to the Trust. Defendants
respond that the Compliance Agreement is limited to a single job, and that, accordingly,
Rady Concrete is entitled to recover all of the subsequent payments it made to the Trust

13

Id. (citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253 (1968)).

14

Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)).

15

Flores v. City of San Gabriel, 824 F.3d 890, 897 (9th Cir. 2016) (citing Ctr. for Bio–Ethical
Reform, Inc. v. L.A. Cty. Sheriff Dep’t, 533 F.3d 780, 786 (9th Cir. 2008)).

16

Anderson, 477 U.S. at 248.

17

Id. at 249.

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that were not pursuant to that particular agreement.

The Court will address each

contention in turn.
A. Compliance Agreement
Plaintiffs argue in their motion for summary judgment that the June 1, 2009
Compliance Agreement was binding on Rady Concrete as to all future jobs, and that
under that agreement Rady Concrete is obligated to make payments to the Trust for all
subsequent projects. Rady Concrete counters that this was a “single-job agreement,”
limited to the single project completed in 2009, which cannot form the basis of liability for
payments beyond that project. In their reply brief, Plaintiffs respond that there is a
material dispute as to the scope of that agreement and therefore acknowledge that they
are not entitled to summary judgment on these grounds. 18 However, the Court finds for
the reasons below that as a matter of law the June 2009 Compliance Agreement was
limited to a single job and cannot form the basis of liability for subsequent payments.
“When reviewing an ERISA policy,” courts are to “apply contract principles derived
from state law . . . guided by the policies expressed in ERISA and other federal labor
laws.” 19 Accordingly, the Court must “look to the agreement's language in context and
construe each provision in a manner consistent with the whole such that none is rendered
nugatory.” 20 The Court “will not artificially create ambiguity where none exists.” 21 And

18

See Docket 41 at 1-2.

19

Dupree v. Holman Prof'l Counseling Centers, 572 F.3d 1094, 1097–98 (9th Cir. 2009) (quoting
Gilliam v. Nevada Power Co., 488 F.3d 1189, 1194 (9th Cir. 2007)).
20

Dupree, 572 F.3d at 1097.

21

Dupree, 572 F.3d at 1097 (quoting Evans v. Safeco Life Ins. Co., 916 F.2d 1437, 1441 (9th Cir.

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where there is no ambiguity in the text of the contract, there is no reason to consider
extrinsic evidence, such as subsequent conduct. 22
According to Plaintiffs, the Compliance Agreement binds Rady Concrete in
perpetuity because it states it “shall remain in full force and effect for the period of three
years’” and shall, absent objection, “continue from year to year” thereafter. 23

And,

Plaintiffs assert, Rady Concrete never took any action to terminate the contract. But the
disputed issue is not the length of the agreement but rather its scope. As Defendants
point out, the agreement specifies, in handwriting, that it is for a “Single job agreement
AHFC FAIRBANKS SITE IMPROVEMENTS.”

Thus, whatever the length of the

agreement, Defendants assert, it was never intended to apply beyond work on that one
specified project.
Plaintiffs attempt to undermine this writing by referring to it as only a “hand written
notation,” which they note was “made in the space which is allocated in the Compliance
Agreement solely for NAME of the contractor,” and was “not made in the CBA to which
Rady Concrete agreed to be bound.” 24 But in the Court’s view, this misses the mark.
First, any handwritten terms supersede typed terms. 25 And second, while the CBA details

1990)).
22

See Pierce Cty. Hotel Employees and Restaurant Employees Health Trust v Elks Lodge, BPOE
No. 1450, 827 F.2d 1324, 1327 (9th Cir. 1987) (holding that the district court “correctly disregarded
extrinsic evidence of the parties’ intent,” including subsequent conduct, when the contract was
unambiguous).

23

Docket 24-1 at 1 (Section 8).

24

Docket 21 at 7-8.

25

E.g., RESTATEMENT (SECOND) OF CONTRACTS § 203 cmt. f.

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the employment terms to which Rady Concrete was bound, the Compliance Agreement
expresses the conditions under which the CBA applies. If Defendants are correct in their
interpretation of the Compliance Agreement, then Rady Concrete “agreed to be bound”
by the CBA only with respect to the one project identified in the Compliance Agreement.
Plaintiffs similarly argue that the written notation should have been added to Section 8 of
the Compliance Agreement. But Section 8, as explained above, refers only to the length
of the agreement, and not to the number of projects which it will govern.
Although the “single job agreement” notation is not a model of clarity, neither is it
ambiguous such that it cannot be enforced. It can have only one meaning: the obligations
to which Rady Concrete was acceding were limited to the “single job” of the AHFC
Fairbanks Site Improvements. 26 Plaintiffs essentially ask the Court to disregard this
provision, but the Court must interpret the contract so that no provision “is rendered
nugatory.” 27 That Rady Concrete never took any action to “terminate” the agreement is
a red herring: the agreement which he never terminated only ever applied to the single
job; it continued only for as long as that job continued.
Plaintiffs no longer seek summary judgment on the basis of the Compliance
Agreement; Plaintiffs now assert that “whether the contract was originally limited to one
job” is “contested on the facts.” 28 Defendants maintain that they are entitled to summary

26

The Court notes that, even if the provision were ambiguous, the subsequent conduct would not
be sufficient to demonstrate an intent to be bound as a matter of law. Such an inquiry would
substantially mirror the analysis below with regard to the remittance forms, which the Court
concludes do not evince an intent to be bound with regard to all projects.
27

Dupree, 572 F.3d at 1097.

28

Docket 39 at 1-2.

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judgment as to their non-liability under the Compliance Agreement. 29 Neither party
disputes the text of the Compliance Agreement itself, and because this text
unambiguously limits the agreement to a single job, summary judgment for Defendants
on this issue is appropriate.

Accordingly, the Court will deny Plaintiffs’ motion for

summary judgment with regard to the Compliance Agreement, and will grant Defendants’
motion for summary judgment with regard to the Compliance Agreement.

The

Compliance Agreement cannot form the basis of any liability beyond the single “AHFC
Fairbanks Site Improvements” job, as noted in that agreement.
B. Acceptance by Conduct
Plaintiffs contend that Rady Concrete’s liability also arises from its course of
conduct after completion of the AHFC Fairbanks project. The Ninth Circuit recognized
the validity of such an argument in 1987, noting in a footnote that “an employer may be
held to have [adopted a CBA] by embarking on a course of conduct evincing an intention
to be bound.”30 Whether a party’s conduct “evinc[es] an intention to be bound” is
necessarily a fact-intensive inquiry. The Ninth Circuit has discussed the type of conduct
that satisfies this test in labor agreements in several cases. None is precisely on point, 31

29

Docket 34 at 1-2.

30

Hawaii Carpenters Trust Funds v. Waiola Carpenter Shop, Inc., 823 F.2d 289, 295 n.8 (9th Cir.
1987).
31

Indeed, some of the cases arise in the context of successor employer liability, which is not at
issue here, and some relate to liability pursuant to provisions of the agreements clearly not at
issue here, such as payment of a withdrawal fee; all involve the union as a plaintiff. The Ninth
Circuit has also addressed obligations to a trust fund in an unpublished case. See Trustees of S.
Cal. Int’l Broth. of Elec. Workers v. DC Assocs., Inc., 381 Fed. Appx. 650, 652 (9th Cir. 2010)
(finding a genuine dispute of fact existed as to employer’s intent to be bound when employer had
paid the union wage only for some employees and had a conflicting agreement with regard to
other employees).
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but the pattern that emerges from these cases and cases from other circuits is enough to
delineate some basic principles.
In one case, the Ninth Circuit reversed a grant of summary judgment for the
employer, concluding that where the employer had “voluntarily implemented the new
terms” of the CBA, including implementing a wage increase, “a trier of fact could conclude”
that the employer had adopted the agreement, even though it had not signed it. 32 In
another case, the Ninth Circuit affirmed a grant of summary judgment for the employer,
concluding that there was no intent to be bound when the employer had unequivocally
repudiated a prior agreement, even though the employer continued to comply with that
agreement while “retain[ing] the right to make changes that it deemed appropriate.” 33 In
a third case, the Court of Appeals rejected an argument that a successor employer had
adopted the arbitration terms in an expired CBA when the employer continued to
“maint[ain]” the “terms and conditions of employment, including the settling of employee
grievances short of arbitration.”34

And in a fourth case, the Ninth Circuit held that

summary judgment for the union was inappropriate because, although a successor
employer had paid union wages, contributed to the trust and filed remittance reports, and
requested employees from the union hall, the successor employer had also presented
evidence that it contributed to the trust not pursuant to the CBA but pursuant to an

32

S. Cal. Painters & Allied Trade Dist. Council No. 36 v. Best Interiors, Inc., 359 F.3d 1127, 1133
(9th Cir. 2004).
33

Bay Area Typographical Union v. Alameda Newspapers, Inc., 900 F.2d 197, 200 (9th Cir. 1990).

34

Hospital and Institutional Workers Local 250 v. Pasatiempo Development Corp., 627 F.2d 1011,
1012 (9th Cir. 1980).
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independent legal obligation. 35
In Brown v. C. Volante Corp., the Second Circuit found an employer had evinced
an intent to be bound by two unsigned CBAs. There, the underlying agreement had
expired and the employer had not signed a renewal. But the employer continued to
submit signed remittance reports and payments, cooperated with an audit, paid union
wages to employees, and, in a letter to the trust after the dispute arose, acknowledged
“responsibility to the funds.” The Second Circuit held that this was “sufficient, absent
contrary evidence, to establish as a matter of law appellant’s intent to adopt the two
unsigned CBAs.” 36
In Robbins v. Lynch, the Seventh Circuit found that there was no genuine dispute
of fact as to the employer’s intent to be bound by an indisputably unsigned CBA when the
employer had “paid the wages called for by [the CBA], made pension and welfare
contributions per the agreement, negotiated and settled grievances under the terms of
the agreement, and rendered to the local union the dues withheld from the pay of its
members.” The employer had also sent a letter formally terminating the (unsigned)
agreement, implicitly acknowledging its continued vitality. 37 The Seventh Circuit has
continued to apply these factors in subsequent cases. 38

35

New England Mech., Inc. v. Laborers Local Union 294, 909 F.2d 1339, 1344 (9th Cir. 1990). It
appears that the successor employer was asserting that the independent obligation arose from
the successor employer’s purchase agreement with the prior employer.
36

194 F.3d 351, 355 (2d Cir. 1999).

37

836 F.2d 330, 331-32 (7th Cir. 1988).

38

See, e.g., Bricklayers Local 21 of Illinois Apprenticeship & Training Program v. Banner
Restoration, Inc., 385 F.3d 761, 766-67 (7th Cir. 2004) (identifying relevant factors as “the
payment of union wages, the remission of union dues, the payment of fringe benefit contributions,
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The Eleventh Circuit has looked to similar factors, finding an “intent to abide” by
an industrywide CBA when the employer had “secured virtually all of its labor from the
union hiring hall,” paid its employees at the union scale, filed remittance reports and made
payments to the trust, and cooperated in two audits by the trust. 39 And, more recently,
the Fourth Circuit held that an employer was bound by a CBA when it had signed a
separate “letter of assent” agreeing to make payments “as provided for by the [CBA] now
existing and as hereafter” and then fully complied with the original CBA and the successor
CBAs for thirteen years. 40
The Fifth Circuit reached a different conclusion in Firesheets v. A.G. Bldg.
Specialists, Inc., where it found the employer had not evinced an intent to be bound and
accordingly affirmed the grant of summary judgment for the employer.

There, the

employer had “continued to make contributions to the Trust Funds after the expiration
date of the Agreement” and had “continued to file monthly contribution reports which
included language stating that it was bound by provisions of the agreements.” 41 While

the existence of other agreements evidencing assent and the submission of the employer to union
jurisdiction, such as that created by grievance procedures,” and particularly noting the employer’s
cooperation in a fund audit); Operating Eng’rs Local 139 Health Benefits Fund v. Gustafson
Constr. Corp., 258 F.3d 645, 650 (7th Cir. 2001) (noting that signed certifications in remittance
reports, while not necessarily dispositive, are entitled to “some weight, and maybe a lot” in
determining intent to be bound (citations omitted) (emphasis in original)).
39

Trustees of Atlanta Iron Workers, Local 387 Pension Fund v. S. Stress Wire Corp., 724 F.2d
1458, 1460 (11th Cir. 1983).
40

Trustees of the Plumbers and Pipefitters Nat’l Pension Fund v. Plumbing Servs., Inc., 791 F.3d
436, 441, 448 (4th Cir. 2015). In that case, the issue was whether the employer had to pay a
withdrawal fee when terminating the agreement; the employer argued it was never bound by the
agreement at all, even though it had fully complied up to the time it tried to withdraw.
41

134 F.3d 729, 731 (5th Cir. 1998).

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these would support an inference of an intent to be bound, the Court found that other
conduct undermined that inference: the employer had hired nonunion employees, set its
own wages, did not give holiday pay to employees, and had “made Trust Fund
contributions only for those employees who asked for contributions.” 42 This conduct was
inconsistent with an intent to be bound, the Court concluded. 43
With these cases in mind, the Court turns to the facts at hand. Here, both sides
agree that Rady Concrete did not fully adhere to the CBA: Rady Concrete made
contributions only for certain jobs and only for some hours. 44 But the evidence also
indicates that Rady Concrete adjusted these payments to conform to the current version
of the CBA. 45 And the Trust performed an audit of Rady Concrete in May 2013. 46

42

Firesheets, 134 F.3d at 731.

43

Id. An unpublished Third Circuit case from 2012 similarly found that remittance forms and
payments submitted only for “designated employees who requested the contributions” were
insufficient to conclusively establish an intent to be bound. N.J. Regional Council of Carpenters
v. Jayeff Constr. Corp., 495 Fed. App’x 230, 234 (3d Cir. 2012).
44

See Docket 33 at 3 (“Rady Concrete Construction did not make contributions to the Trusts for
all hours. . . . Rady Concrete did not make contributions on projects that were not public works.”);
Docket 21 at 4 (“Rady Concrete did not list all cement finisher employees on its remittance reports
. . . . Rady Concrete reported and paid employee benefit contributions on only those employees
who were working on Davis Bacon projects or prevailing work projects.”). The extent of its
compliance with other terms of the CBA is unclear.
45

Compare, e.g., Docket 24-4 at 2 (Aug. 2011 Report) (“Health” payments at rate of $5.41 per
hour), with, Docket 24-4 at 16 (Aug. 2013 Report) (“Health” payments at rate of $6.91 per hour).
See also Docket 23 (Giles Aff.) at ¶ 6.
46

See Docket 21 (Mot.) at 4. This assertion is not supported by a citation to any evidence, cf.
FED. R. CIV. P. 56(c)(1), but Defendants acknowledged during oral argument that an audit by the
Trust had taken place.

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Plaintiffs have also presented unrebutted evidence that Rady Concrete submitted
numerous remittance forms and accompanying payments. 47
The Court finds that no reasonable trier of fact could find that the sum of Rady
Concrete’s conduct established an intention to be bound to the CBA as to all work. First,
although the signed remittance forms might deserve “some weight, or even great weight,”
many of the forms were not signed. And, more importantly, Rady Concrete’s adherence
to the terms of the CBA was inconsistent at best. As both parties acknowledge, Rady
Concrete submitted no contributions at all for certain work.

Correspondingly, Rady

Concrete submitted no remittance forms at all for that work. Thus, unlike in Best Interiors
or Plumbing Services, Rady Concrete had not “voluntarily implemented” or “fully complied
with” the agreement—it had instead applied certain aspects to select employees for select
projects. These facts are more like those in Alameda Newspapers, where the employer
continued to adhere to the agreement, but reserved the right to—and here Rady Concrete
in fact did—unilaterally change its terms, or like the facts in Firesheets, where the
employer submitted remittance payments only for the employees that asked for
contributions. Rady Concrete’s undisputed conduct—indeed, the very conduct which the
Trust faults—is not consistent with an intent to be fully bound to the terms of the CBA.
In light of the foregoing, the Court holds that Rady Concrete cannot be held liable
to the CBA as to the work for which remittance forms were never submitted.

47

See Docket 24-4 (Remittance Reports).

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C. Remittance Forms Liability
This does not end the matter, however. The Trust also contends that, even if Rady
Concrete is not generally bound to the CBA, it is obligated under it at least with respect
to those projects for which it submitted remittance reports. 48 But these reports come in
two types: signed and unsigned.
As to the signed remittance forms, the Court agrees with Plaintiffs that these bind
Rady Concrete to make contribution payments with respect to those projects. On these
forms, Mr. Rady signed the certifications as CEO of Rady Concrete. These certifications
provide that “The undersigned Employer agrees to be bound by the Trust Agreements.”49
By signing his name, Mr. Rady unquestionably bound Rady Concrete to those
agreements for those projects. The Court finds that no reasonable trier of fact could
conclude that Rady Concrete had not agreed to be bound to the agreements with respect
to the work underlying the signed remittance agreements.
But the evidence is not conclusive as to the unsigned remittance forms. While a
fact-finder might conclude that by submitting the forms with a remittance check Rady
Concrete evinced an intent to be bound, a fact-finder might also find that other relevant
facts—including the apparently union-official–approved underreporting of hours—indicate
Rady Concrete did not intend to be bound. Thus, while the signed remittance forms are
entitled to “some weight, and maybe a lot,” the unsigned remittance forms are entitled to
far less. 50

48

See Docket 39 at 2.

49

See 24-4 at 1 (Ex. D, Remittance Reports).

50

Operating Eng’rs Local 139 Health Benefits Fund v. Gustafson Constr. Corp., 258 F.3d 645,

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Based on the foregoing, the Court holds that Rady Concrete is liable to the Trust
for all projects for which it submitted any signed remittance forms—even if it later also
submitted unsigned forms for those projects. But the Court holds that there is a genuine
dispute of fact as to Rady Concrete’s intent to be bound with regard to projects for which
it submitted only unsigned forms.
D. Defendants’ Cross-Motion
Defendants moved for summary judgment on the issue of liability, and also for
summary judgment with regard to their right to recover payments made subsequent to
the AHFC Fairbanks Site Improvements project. The Court has already noted above that
Rady Concrete’s liability cannot be premised on the Compliance Agreement; its liability is
established with regard to the projects for which signed remittance forms were submitted;
that a dispute of fact precludes ruling on liability with regard to the projects associated
with only unsigned remittance forms; and that Rady Concrete cannot be liable with regard
to projects for which no remittance form was submitted. Accordingly, Defendants’ motion
will be granted in part and denied in part with regard to Rady Concrete’s liability.
The Court will deny Defendants’ motion with regard to its right to recover payments
made subsequent to the AHFC Project. Although the Compliance Agreement did not
oblige Rady Concrete to make the subsequent payments, neither did it preclude liability
premised on separate agreements. And, generally, an employer may recover payments

650 (7th Cir. 2001) (noting that signed certifications in remittance reports, while not necessarily
dispositive, are entitled to “some weight, and maybe a lot” in determining intent to be bound
(citations omitted)).
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made to a trust only if made pursuant to a mistake of law or fact. 51 Defendants have not
cited to any evidence indicating that there was such a mistake. 52 Moreover, as the Ninth
Circuit held in a 1996 case, “[t]he right to a refund is not automatic . . . even if the employer
can demonstrate the requisite mistake of fact or law; the employer must also show that
the equities favor restitution.”53 There, the Court held that the equities did not favor
restitution. Here, just as in Lopshire, Defendants’ “employees received the benefits for
which [Rady Concrete] made contributions, and [Mr. Rady] himself obtained the benefits
of economic peace with the union. The Trust Funds relied on the continuing contributions
by [Rady Concrete] and provided the benefits received by [Rady Concrete’s]
employees.” 54
CONCLUSION
Therefore, IT IS ORDERED that Plaintiffs’ Motion for Summary Judgment at
Docket 20 is GRANTED in part and DENIED in part. Plaintiffs’ motion is GRANTED as
to Rady Concrete’s liability with respect to the projects for which Rady Concrete submitted
any signed remittance forms. Plaintiffs’ motion is DENIED in all other respects.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment at
Docket 34 is GRANTED in part and DENIED in part. Defendants’ motion is GRANTED

51

See 29 U.S.C. § 1103(c)(2)(A)(ii).

52

See Docket 33 (Opp.) at 7-8; Docket 34 (Mot.) at 1-2.

53

Alaska Trowel Trades Pension Fund v. Lopshire, 103 F.3d 881, 885 (9th Cir. 1996) (citing Award
Serv., Inc. v. Northern Cal. Retail Clerks Unions & Food Employers Joint Pension Trust Fund, 763
F.2d 1066, 1069 (9th Cir.1985)).
54

Lopshire, 103 F.3d at 885.

Case No. 3:15-cv-00061-SLG, Alaska Trowel Trades Pension et al. v. Rady Concrete et al.
Order re Motions for Summary Judgment
Page 16 of 17

with respect to there being no liability under the June 1, 2009 Compliance Agreement
beyond the completion of the AHFC Fairbanks project or with respect to projects for which
no remittance forms at all were submitted. It is DENIED in all other respects.
DATED this 2nd day of November, 2016, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

Case No. 3:15-cv-00061-SLG, Alaska Trowel Trades Pension et al. v. Rady Concrete et al.
Order re Motions for Summary Judgment
Page 17 of 17