Chase v. Trustees of Western Conference of Teamsters Pension Trust Fund

REINHARDT, Circuit Judge,

concurring.

I concur in the result. The statute provides that when payments are made to a trust fund by mistake they may be refunded to the employer making the payment. Accordingly, we have held that when payments have been made by mistake, the employer may sue for a refund. See Fen-tron Industries v. National Shopmen Pension Fund, 674 F.2d 1300, 1305 (9th Cir.1982). But cf Crown Cork and Seal Co. v. Teamsters Pension Fund, 549 F.Supp. 307 (E.D.Pa.1982), aff’d mem., 720 F.2d 661 (3d Cir.1983). However, I do not believe that the statute contemplates that individual employees shall ordinarily have the right to institute suit for such refunds, even though they are “participants” in a trust fund. Under the statute (and whatever the ultimate entitlement to the monies) it is the employer who made the payments who is entitled to the return of the contributions it has paid. 1

Here, the payments were made by a corporation that is not an employer. Nevertheless, I believe that the corporation, Broadway Cab Cooperative, Inc., would have been entitled to request a refund or to institute suit for the return of the amounts it paid under a mistake of law. The corporation executed the collective bargaining agreement providing for the payment of the contributions. It was responsible for making payments under that agreement, and it actually made the payments. The problem in this case arises from the fact that the corporation was a membership or *754 ganization and its members were divided over whether to seek a refund. As a result, the corporation did nothing. Instead, the suit for a refund was filed by a class representing some, but not all, of its members.

I agree with the majority that in the case of a membership organization with no employees, the members of the organization may institute a suit for the refund of contributions if they do so as a class. There is no difference between the organization and its members as a whole. I have serious doubts, however, whether, when the membership is divided, a suit may be maintained by a class representing only a portion of the membership — a group that seeks the return of only a part of the allegedly erroneous payments. 2 Perhaps, under some circumstances, such a suit would be permissible. Under others, undoubtedly, it would not. Where contributions are either lawful or unlawful, the return of the entire payment should ordinarily be sought.

Unfortunately, the parties did not address the question of the appropriateness of a class of less than all the “participants”. 3 I think that before resolving the issues mentioned in the majority opinion, the district court should consider that question fully.

. The conclusion that it is ordinarily the employer who has the right to sue for a refund is consistent with the conclusion reached by the Tenth Circuit in Peckham v. Board of Trustees, 719 F.2d 1063 , modified and reaffirmed, 724 F.2d 100 (10th Cir.1983). The "participants” in Peckham were employers; they were sole proprietors who had made contributions on behalf of themselves and their employees. Like the sole proprietors in Peckham, the owner-drivers in this case are not employees. But, in contrast to the Peckham plaintiffs, the plaintiffs here are not employers; nor did they enter into a written agreement for the making of contributions or make the payments to the trust fund directly.

. The plaintiffs in Peckham, supra, sued for a refund of all the contributions they made under a mistake of law.

. In fact, nowhere in their briefs before us did appellants even contend that they were entitled to sue as "participants.” Moreover, the district court received little help from the litigants on the pertinent issues. Because of the manner in which the parties presented their arguments throughout this litigation, I agree with my colleagues that the case should be remanded to the district court for a full exploration of the legal issues relating to refund suits by participants.