this is true because the trustee is both pled and litigated a breach of contract claim against defendant sharp's which was not adjudicated by the district court also because the evidence is sufficient on the record to establish liability both on the contract as well as the pledge vicarious liability claims against all the defendant as such work requesting that the court reversed the district court's award of summary judgment to the defendant in award summary judgment liability and corresponding communications as well as responses to discovery that were withheld from the the defendants despite the fact that the time records are both relevant and responsive to the trustees discovery with respect to that claim against sharp declaration was the audit invoice and the audit invoice is broken down both by sharp for it's broken down into three categories the sharps reported operators so individuals that were employed and paid by sharps who had some contributions for sharps only operators is that approximately four million dollars of that about two one million dollars is due and owing specifically to the health and welfare fund for which mister charpentier has been found do personally liable fifty one in fifty two the sharps liability was also litigated both before the district court and in the prior summary judgment motions but as well as before the district court in this  e as i stated on pages twenty two of our summary judgment motion we set it forth that detailed audit alleging the three categories of damages i just discussed and in fact the defendants also actively litigated up before the district court  hundred and forty six of the supplemental appendix broken down by individual audit invoice there's also in the appendix it was before the district court as exhibit two the brief condensed summary what the it's a it's an excel spreadsheet that was printed and it's done by month and it lays out what was paid what was reported and or in some cases not reported and therefore what was due and owing on behalf of each individual do i recall correctly that the district court refused to to accept a broad site like that or for that and that's why it rejected this claim the district court didn't reject that the breach of contract claim it simply said it wasn't it was because there were so many operators and it expands those pages because we have a six year out a period your honor that covers and it because reporting is done by month you have a column for each month of the six years as well as employee the audit and the operator employees that weren't reported or that had underreporting and so that the records are only voluminous simply because there are so much under reporting or legend reporting in this case but  exhibit five and exhibit two in to the summary judgment and i can find those appendix pages for you shortly those are a more condensed version that simply don't provide the detail as the supplemental what the supplemental appendix was put in the record after the defendants made the contention on appeal that we hadn't identified a single individual for which there was under reporting and so we felt it necessary to then address each individual of the district court's order the oldest order i think it's a last one and the centerpiece of that page is the collective bargaining agreement is quoted right there and i thought what the district court was saying is that you need alter ego joint venture join signatory is required to report on the sharps operators and that claim wasn't addressed by the district court he indicated that this that only theories of recovering for vicarious liability that language refers to a pipeline and distribution which has that specific contract language which and i can and i'm assuming you're reading that if and when shall perform were covered by this agreement under its own name under the name of another that language correct correct we had a separate cause of action stating that defendant the non signatory defendants c m g and alpha performed work covered by be agreement because they worked in any combination with signatory sharps and therefore there was a separate claim a contract claim for damages because of this specific contract language so they're separate in the sense of the sharpes claim for damages is based on the contract which requires them to sell for part and t contract language that the district court considered on page seven is with respect to our claim that the contract language given that language broadly also includes c and g and alpha and with respect to that contract language we believe that the district court erred by concluding that that language required a finding of joint venture joint enterprise or alter ego the plain language of that contract language states that liability that were covered by the agreement under the name of another as a corporation company partnership enterprise or any combination including a joint venture by reading into that the a finding that it had to have been joint venture joint enterprise altering the district nugatory the language of any combination and it would be unnecessary for that contract provision to exist at green corporation because they say that that kind of language requires an alter ego relationship with ordered to enforce if you're surprised by the case you could submit a twenty eight j letter replying to it ok ron i think  you i think that the plain language of that statue that contract provision necessarily is more broad than an alter ego finding and if you read that case i if you read that provision to require the alter ego you're opening in the contract enforcement to be enforced differently depending on the jurisdiction in which you're in because the alter ego tests in each jurisdiction differs and in this case we have and it's a national agreement with a company that's working nationwide and so how the contract would be enforced would depend on at that point it would be a question of whether it's being enforced in the the to include language that would necessarily meet be more broad than the causes of action that exist at common law and in this case you have a situation in which the companies worked in combination throughout the audit  period if you look at the district court's findings with respect to joint venture for example the district court concluded there was at least a question of fact based on their financial combination and their employment combination as well as their operational combination as to whether or not they formed that that was sufficient to establish the contribution element for joint venture it certainly is inconsistent to argue that there's a question of fact as to whether they operated in combination for joint contribution and not find the same with respect to whether they operated in any combination and in this case you have additional facts that not outside of the financial brief argument with respect to the trustees claims with respect to start or finish i think the district court concluded that without any arms like the grievance the company shared employees and shared jobs by doing so the companies necessarily misreported those employees that evidence hasn't been disputed by the defendants in fact they admit that they submitted reports on behalf of sharpe's paid employees that were working for c and she and alpha and contrariwise the district court has found that there were employees  nature you see i'd union company that is withering on the vine and and i don't mean company that's taking all of that work right that's the typical case like this this is absolutely the opposite seeing jane so it's not just the shops ownerships it's different ownership that company starts out in north dakota that's a known union company who later mr greenstein or leaves a business that wasn't they're going their plan is that they're going to start this now on union company working in the oil fields themselves out in oklahoma it's only after the existence of these nonunion companies that sharp's really takes off the union side takes off you can see that that language seems to compass virtually any kind of business operation could be connected i would say i would say two things i would say if if you read it broadly it becomes the work and that's why i don't think it's as broad as my maybe a st read what imply because it has to be the employer performing the work if they wanted to write language that simply says look you can't be we can't do that under the relevant law you can't say well if your signature or to noon agreement you can't have any business relations with a nonunion company and again why why is that because what's only permissible under the law is to carve out and protest work that ends the work of the bargaining unit you're trying to maintain that work and what this would do if you read it the way they proposed is extend all over the place to all sorts of work that was never union work and that was never it's not protecting any work it's trying to explain the scope so what they're trying to do is take language that was meant to apply simply to the project itself so that employers off and extended cross country to areas and types of projects never intended again this has been found and permissible because the only thing that the law allows is for the protection of of that if we go to the other issue with respect to the breach of contract i think what's interesting about the language as you point out is it could be read to be broad is if we go back to the original complaint that started this so you would think if the trustees believed that language was that the world instead of a complaint that really hits hard on alter ego and they alter ego factors what you w allegations are relating to this go theory because again by reading that more narrowly is the proper reading so if we switch over if if i understand as laurie's argument in part is that there's also a breach of contract claim that sharp's itself failed to report certain hours and it wasn't dealt with by the district court which response to my response as it was dealt with by the district court and what happened is they just don't have any underreporting it doesn't specifically say those words but what it does do what it does as you have presented to the court and say i claim that they have pay appropriately now what you look at there is what on earth is the evidence the reason that the district court i believe doesn't address that more specifically in detail is not because somehow it was overlooked it's because the independent existence and then only can we have an lots of evidence of the independent existence of these companies are doing lots of business in different parts of the country with different management i wanted to address specifically the mission raised by the friends council with respect to well mr todd of it's the president of shops testified well i thought i had to approve pay raises if i want to raise my own salary or the other folks who work in the office i'm going to have to go to some charge into the testimonies for that it related to decision making by hiring and sorts of decisions so i don't know that your strongest point they shared administrative staff from the beginning is shared employees but they do try to keep them separate and again that the keep in mind with respect to the info and the nature of this it's amazing that when you get into these large numbers sort summary judgment right are they got a raise is a genuine issue or material fact at this point and but what you start to get are those funds going back and forth across years of workers the shared corporate headquarters and i think the st prize there's a genuine issue of material fact you think there's not i i think certainly anti union bias is certainly part of what you look out when you're looking at the subterfuge factor what i don't want to say is the fact that a union company or a nonunion company prefers one of the other that somehow now we've some subterfuge no certainly entitled unions and this is part of it the interesting thing is you have the total absence of it here you have a strong healthy growing union entity and what they do with that is because that happens to a handful of people what they do with that is they try to then say oh there's some contamination here and then they make the numbers very large and say it's a huge problem i thought you did some to avoid friction tell me what that's talking about but that was at the record i think what you're referring to there was a project in michigan a particular project in michigan and what that project was is there's an e mail on the record in deposition testimony from christopher not really what that job site was and your side of the unions that way are being one particular union now the interesting thing about that is when i think the evidence of that isn't really substantiated in what they cite in the record to the interesting thing is that works across purposes what they're say there's we're going to report him in minnesota even though he's down in missouri when the evidence of how that should be able certainly never presented to the court in any cogent fashion that would be a summary judgment to this local union would get the benefit local forty nine health and welfare fund would get the benefit so it's an odd very odd example and i think it highlights actually the weakness of their case when they're when the example they point out is one that would most likely they point to and that won't stack the ad the five hundred and thirty six pages that are out there's a bunch of spreadsheets that cite well theoretically we think that these guys should have been categorized differently without any substantiation in the record and again that's why on that part of their claim where they're saying sharp's sales stripes fail to make the proper contributions it just totally lacking in evidence it's so lacking in evidence that magnussen doesn't address it in detail  order you just moves on to look there's a there's none of this why because they don't make their case they don't make their case and they don't provide the necessary of evidence it's a bit of an odd duck and it's an odd duck because joint enterprise and joint venture one even pled they weren't even part of the case they come up later and the court says yeah we're going to find that there's a joint enterprise here but there there briefly as my time is winding down the court was correct you don't have a joint venture here when what's the venture they're talking about when i talk in the entire business operations what is the venture there's no mutual understanding of a common purpose these are different businesses trying to make money in different areas there's joint proprietorship and control in part but again even that isn't clean because you've got this history of edge charpen about real ownership here of some people beyond and sharpen care chris munter when he became owner of alpha he mortgaged his house you don't do that just because you're not taking real ownership again the ownership is  different times here and certainly there was no contract at all and certainly no contract that to enter into a joint venture i want to st go to the alleged claim that defendants make that mr that the district court did address damages with respect to sharpe's as the court knows we did request reconsideration from the court with respect to that claim on page sixty eight  of the district court against the plaintiff's only theory of recovery was that defendant's oh delinquent contributions arising from their alleged joint enterprise or joint venture are based on their alter ego status it's the nd to last sentence on page sixty eight district court had the supporting documentation behind it it just says july two thousand and eleven say there was reported under the minnesota builders agreement representing that he was performing work covered by the builder c p a within minutes his time cards appendix and it's important to note that defendants have made this claim before the court as well as before judge magnus and that the reporting somehow benefit of the funds the contract in this case dictate so these guys have to stay in the state they are listed under when the time she chose the opposite they need to change the union wage code which will change the scale and change work to the state leave the job number the same so my time's up unless the court