*1 registration vehicle whose current bore

Spokane, Washington address.

Although may suggest these factors that provide

Depew “Pepe,” the affidavit fails to “Pepe” Depew

sufficient evidence and/or engaged in a

was crime or that evidence of

illegal activity Depew’s would be found at showing no

home. There is that the affiant’s “Pepe” growing

information that was mari reliable, ie.,

juana hearsay it is based showing reliability

without a

hearsay sufficiently It is not source. reliable affidavit, probable

to establish cause. The search, Agent illegal

stricken of Trout’s con “Pepe’s” alleged

tains no corroboration of

marijuana growing operation. See United Kerr,

States v.

Cir.1989) (degree of infor corroboration of story significant probable

mant’s cause

determination). Agent

Absent Trout’s claim he marijuana, clearly

smelled the affidavit is probable

insufficient to establish cause that

evidence of a crime would be found De-

pew’s home. therefore need address

Depew’s challenges further to his conviction judgment

and sentence. The of conviction is

reversed and the case is remanded to the proceedings.

district court for further and REMANDED.

REVERSED CLARK, Plaintiff-Appellee,

Cedric

WASHINGTON TEAMSTERS TRUST, De-

WELFARE

fendant-Appellant.

No. 92-35054. Appeals,

United States Court

Ninth Circuit.

Argued Aug. and Submitted

Decided Nov. *2 Davies, Williams, perform any unit shall work covered gaining Kim Reid and J. Russell Seattle, WA, Reid, Agreement.” Roberts, for defen- this and dant-appellant. Article 12 of the collective “HEALTH agreement is entitled CARE Adams, Almon, Adams, Berg and K. James provides: and “The BENEFIT PLANS” Yakima, plaintiff-appellee. WA, for fol- Employer pay shall each month into the lowing employee plans, on health care benefit of each member of the account (80) who for hours or more the month.” WALLACE, BOOCHEVER, Before: J. PLAN” 13 is entitled “PENSION NOONAN, Judges. Circuit and Employer provides: shall each and “The month into the Western Conference of Team- NOONAN, Judge: Circuit Fund on each sters Pension Trust account of unit, member the for each hour against of brought suit Clark Cedric (the him, compensation is paid for which but Washington Welfare Trust Teamsters seventy-three to exceed Trust) not one hundred right his seeking to establish health for such calendar month.” the Trust. The district court benefits under judgment The gave summary Clark. provides part: Employ- “The Article 17 appealed. reverse the district employer-trustees agrees further that the er judgment be entered and direct that court trusts, their named the said and succes- for the Trust. trust, representa- are and shall be his sors

tives, to be the ac- consents bound tions and determinations of the Trustees.” BACKGROUND bargaining agreement The collective president of Yakima Coun- is the Clark County Beverage signed on behalf of Yakima (the Beverage Company Company), ty which Company by Clark. taverns, grocery and wine to delivers beer recipient under payments The Trust is of primarily in lounges Yaki- stores and cocktail Tafb-Hartley employee It is Article 12. County, Washington. ma Clark started by a governed of trustees benefit trust board was incor- in 1961 the business business consisting equal an number porated in and his the mid-1960s. Clark representa- by employer trustees selected corporate officers and share- wife are by repre- and union trustees selected tives Company. holders The sentatives of Teamsters. Board Company has a collective The Washington governed Trustees is Internation- Local 524 with Agreement and Declara- Teamsters Welfare Teamsters, Shippers, al Brotherhood of Trust. The administrator of tion (the Helpers of America Warehousemen (the Administrators, Trust is Northwest Inc. Teamsters). alia, agreement, pro- inter Administrator). bargain- 542 is the exclusive vides that Local incorporation Company Ever since its employees of the ing representative for all paid to the Trust on behalf has contributions 1(C) except listed in Article Company those also a of Local of Clark. Clark is excep- agreement; Appendix ofC controversy and the 524. Prior to 1988 supervisors engaged in “not tions include family lawsuit and his did led this en- unit work” and owners “not some benefits from the Trust. Since receive unit work.” Article 10 gaged Clark also carried health insurance perform any provides: “Supervisors shall County Yakima Blue Shield. from Agreement or accrue this covered of a random audit Agreement as result this unless benefits under Administrator, the by the Admin- Ex- conducted they are of the Local Union. members Section, questioned eligibility for ben- Clark’s cept provided in this istrator specifically quote To Clark’s brief efits under the Trust. no a member of the bar- person who appeal, apparent summary judgment “The reason for the de- for Clark. The court ineligible termination that Cedric Clark was found that Clark did for Trust benefits was the belief that and that he was therefore provi- within the that, agreement required to be sions of the Trust. The totally court found *3 benefits, bargaining employ- for Trust unit unambiguous of Article 12 di- compensated ee must be for 80 hours of recting to the Trust on a bargaining unit work each month. monthly This was basis “on account of each member of interpretation given the labor the bargaining unit compensated who was Administrators, by Northwest Inc.” hours or more in the month.” The court held the determination of appealed Clark the Administrator’s deter- ineligibility by made the Trustees to be arbi- eligibility mination of to the board trustees trary capricious. of the agreed Trust. The Administrator performed Clark some unit work The appealed. Trust majority but observed that “a of Mr. Clark’s spent performing time was not ANALYSIS unit work.” The Administrator also ob- Clark, by It according is conceded to his Company served that the did contribute for brief on appeal, this that the “focus of the Trust, Clark to the but did not make contri- inquiry 8, appeal the June 1989 before the butions for Clark to the Pension Trust. Appeals Trust Committee.” It is further (the Appeals The Committee of the Trust conceded Clark that this Committee did Committee) appeal met and reviewed Clark’s deny that Clark did unit work eligible determined that Clark was not and that the basis of its decision was that he

for benefits under the Trust. The Commit- had not done sufficient bargaining unit work recognized tee that Clark did unit in bargaining agree- defined the collective work but also a majority concluded that of ment to him employee, make a covered non-bargaining his work was conclusion, it, puts “obviously as Clark based Clark was so notified. He was also notified requirement the additional ... that a right appear of his to before the Committee. perform must 80 appear did Clark before the Committee hours of per month to testimony, and offered supported by his oral eligible.” testimony general manager of the of the Trust, provisions Under the Company. The Committee also considered 4, Discretion,” § Article 9 “Trustees’ it is affidavits and other documents submitted provided: “Any questions arising in connec Clark as well as documents and records in performance tion with provisions the administrative file. After review of all Agreement specifi of this Trust not hereto the evidence the “specifically Committee de- cally provided for shall be left to the sole termined that Mr. Clark was the owner of discretion of Language the Trustees.” in the County

Yakima Beverage per- and did not Agreement capable which is of more (as form sufficient de- interpretation pose question than one does governing agreement), fined arising in performance connection with the participate under the Trust’s Trust, provisions questions rules.” interpretation language of such are not specifically provided questions, for. Such

PROCEEDINGS therefore, are left “to the sole discretion of thereupon brought this solidly suit the Trustees.” Under established Superior County precedent, Court of the of Yakima. a matter left to the discretion of The Trust removed to the federal district the trustees and decided them cannot be complaint court differently by because the stated a claim decided a court unless the arising under the arbitrary laws of the United States. decision of the trustees is and ca § parties 28 U.S.C. 1441. Both pricious. moved for Firestone Tire & Rubber Co. v. summary judgment. Bruch, 101, 115, 948, 956, gave The district court 489 109 U.S. S.Ct.

1432 (9th Cir.1988). Co., (1989); most con- Eley Boeing F.2d 744 80 103 L.Ed.2d (9th Cir.1991). trusts, moreover, many it is tracts and necessary implicit find conditions that are open to the of Article was language The understanding. Ar- parties’ See 3A viz., Clark, interpretation reached Contracts, Corbin, § thur L. Corbin on by a of work hours (1960); 3 Scott & Wil- at 132-34 Austin W. determining eligi- bargaining unit counted Fratcher, § The liam F. Law Trusts lan- bility under Trust. for benefits 1988). Though it a close ed. 8-9 interpretation open to the guage also was question, that the trust- Clark does not show only for bar- that it were to read ees unreasonable work that counted determin- gaining unit compen- Article 12 referred as tion which *4 require- the 80-hour ing eligibility under bargaining for unit work. sation its draw- interpretation Each has ment. backs; interpre- has its merits. On the each the that Trust point Clark makes the Clark, by by work done a tation reached spelled have out this condi- Agreement could the bargaining the unit outside member of a explicitly. Undoubtedly. But tion might treated as relevant unit’s work interpreting an implied those condition is interpretation the compensation. On say implication the agreement is not to trustees, a the reached is pulled the air. Here the condition is out of his might lose health benefits implication the an consistent with total docu- employed if on the for a month he were ment. in, past month Company’s business for have neither The trustees a bias toward say, non-bargaining unit hours of work. 79 employees. They are nor however, danger, This seems fanciful fiduciary held to strict standards set out Company’s case himself who was the of Clark 404(a)(1) § Employee in of Retirement president. 1974, Security Act Income of 29 U.S.C. in upon single sentence Blau Clark relies (1988). 1104(a)(1) They § must for the act (9th Corp., F.2d Cir. v. Del 748 1348 Monte purposes providing of benefits to exclusive 1984), employee welfare ben “[w]ith viz. that participants and their beneficiaries and plans imposition ... of standard that is efit defraying expenses admin- the reasonable of plan of a the terms amounts contained They istration the Trust. must act within arbitrary capricious to an and decision.” Id. care, skill, prudence, diligence with the and at The sentence is taken out of the prudent mat- that a man familiar with such plan’s the case. The administrator context of the trustees of the ters would show. That comply attempt had “made no Blau good is not denied acted faith places any with the duties that of ERISA their Clark. Their reasonable exercise of upon plan Id. a benefit administrator.” second-guessed by a discretion cannot be had 1352. The administrator added terms judges as court. We cannot federal plan’s provisions, virtually libitum to the ad every every monitors administrative act or of 1354, kept policy id. at and had both the trust; interpretation an arguable ERISA the administrator and the intention discretion for the we cannot substitute our Id. at Unlike administrator secret. en- faithful exercise of discretion those case, present was no exercise of there trusted with those tasks. arguable question, discretion on close and and with di- REMANDED REVERSED disregard flagrant but of the clear terms of judgment for the Trust. rection to enter plan. “arbitrary ca The touchstone of BOOCHEVER, Judge, dissenting: Circuit pricious” conduct unreasonableness. agree 12 of the inquiry interpreta into I am unable to that Article “[0]ur whose reasonably persuasive, bargaining agreement tion plan documents is most collective plan requiring as 80 but administrator’s inter can be construed hours whether pretation compensation is unreasonable.” MacDonald Inc., opposed requiring Pan Airways, American 859 80 World

1433 nied, only. my opinion, 1189, tion the Trustees’ deci- 469 U.S. 105 S.Ct. 83 upheld only (1985). if sion should be it was based on L.Ed.2d 965 We have held that “im perform Clark’s failure to more than de min- position of a standard that is not contained in imis unit work. the terms of a[n welfare benefit] plan arbitrary amounts to an capricious between the decision.” Blau v. Corp., Del Monte company and Local 524 makes the union the Cir.1984), denied, F.2d cert. sole and representative exclusive 474 U.S. 106 S.Ct. 88 L.Ed.2d 152 employees except for all “supervisors” and (1985). Because section 12.1 is clear and engaged “owners” who are not unambiguous, if the Trustees’ decision question unit work. re Thus a first before the wrote that require 80 hours engaged Trustees was whether bar Clark was work, gaining unit I would affirm during the district requi- court’s reversal of period. arbitrary site their decision as capricious. The Trustees found that Clark did at least section, some In the In an context of that affidavit the Trustees’ court, appeal submitted the district final decision on area man- is unclear. The ager for the Trust administrator stated that statement that Clark perform “did not suffi- *5 (as the affidavits that were before the Trustees cient unit work defined in the doing “do not show that governing agreement), Clark was more than eligible labor to be diminimus during [sic] unit work participate under the (empha- Trust’s rules” period.” added) opinion The Trustees’ of June sis could refer to his per- failure to 8, 1989, only stated per- Clark “did not form 80 hours of bargaining compensa- (as form sufficient tion, unit work de- or it could refer to the contention that governing agreement), fined performed only de minimis eligible participate under the Trust’s ease, In the latter I believe it rules.” would be within the discretion of the Trust- ees to conclude that bargain- Clark’s minimal section 12.1 of the collective ing unit work was not sufficient to make him bargaining agreement specifies, “The Em- participate. ployer shall each month into the follow- ing employee plans, health care benefit Accordingly, I would remand to the district account of each member of the court with instructions to remand to the unit who Trustees for clarification of their decision. hours or more month.” The specify does not that the tion for 80 hours must be for bargaining

work, and if so very construed it could have who,

adverse results on union members from time, may required HELLER, time to Plaintiff-Appellant, to do some Jerrold S. during non-union work the month. It seems to me that section 12.1 perfectly clear and CO., EBB AUTO dba Ron Tonkin if require compensation it were intended to Mitsubishi, Defendant- work, for 80 hours of union it would have so Appellee. specified. requirement compensation No. 92-35277. for 80 hours of anywhere contained agreement. Appeals, United States Court Ninth uphold eligibility Circuit. decisions of the plan trustees of an benefit “unless Argued Sept. and Submitted they arbitrary, capricious, are made bad Decided Nov. faith, evidence, supported by substantial question or erroneous on a of law.” Malhiot Union,

v. Southern Retail Clerks California Cir.1984), cert. de