dissenting:
I respectfully dissent. The majority offers two inconsistent rationales to justify its conclusion that the MLA’s 40-hour presumption is rebuttable, rather than conclusive. Neither of these is convincing, or consistent with this circuit’s prior cases. The majority seems determined to circumvent our holding in Waggoner v. C & D Pipeline, 601 F.2d 456 (9th Cir.1979), where we ruled that the LMAB’s 40-hour presumption is conclusive. Because I conclude that C & D Pipeline controls this case, and that the discussion of the 40-hour presumption in Sapper v. Lenco Blade, Inc., 704 F.2d 1069 (9th Cir.1983), upon *1306which the majority relies, is dicta, I would require Minor Equipment to pay 40 hours worth of fringe benefit contributions for every week that Charles Minor worked.
C & D Pipeline involved a salaried employee, Donald J. Stark, who divided his time between work covered by the MLA and work it did not cover. 601 F.2d at 457-58. The district court ruled that Stark’s employer, C & D, was obligated to pay fringe benefit contributions for only those hours during which he performed work covered by the MLA. This court reversed, holding that the LMAB resolution “require[d] employers to make contributions for all hours worked by employees who perform any work covered by the agreement.” Id. at 459 (emphasis added).
However, we did not remand to the district court to determine the total number of hours that Stark worked, even though this information did not appear in the record. Instead, we held that:
Because Stark was a salaried employee, C & D was required to make contributions for Stark based on a minimum of forty hours per week.
Id. (emphasis added). We treated the 40-hour presumption as conclusive in C & D Pipeline: we did not provide C & D with an opportunity to introduce evidence that Stark worked fewer than 40 hours per week. This interpretation of the 40-hour presumption was a holding in C & D Pipeline, since it was necessary to the outcome of the case and controlled the amount of damages that were awarded.
The majority seeks to avoid C & D Pipeline 's holding first by claiming that in Lenco Blade, this court “distinguished” C & D Pipeline and “held” the 40-hour presumption to be rebuttable in all cases. The majority quotes Lenco Blade’s statement that our decisions in C & D Pipeline and two other cases, Waggoner v. Wm. Radkovich Co., 620 F.2d 206 (9th Cir.1980), and Burke v. Lenihan, 606 F.2d 840 (9th Cir.1979), were “inapposite [in resolving the Lenco Blade case] ... because they involved employees who indisputably worked forty hours per week.” 704 F.2d at 1072 (emphasis in original). If that were an accurate characterization of the facts in C & D Pipeline, this court would have had no need to apply the 40-hour presumption in that case. If Stark indisputably worked 40 hours per week, C & D would have been required to make 40 hours worth of contributions for him without ever applying the 40-hour presumption.
However, Lenco Blade’s characterization of the facts in C & D Pipeline, upon which the majority relies, is not accurate. The decision in C & D Pipeline nowhere states or implies that Stark worked 40 hours per week, much less that this fact was undisputed. See generally C & D Pipeline, 601 F.2d at 457-59. Nor do the other two cases purportedly “distinguished” by Lenco Blade indicate that the employees they involved worked 40 hours per week. See generally Wm. Radkovich, 620 F.2d at 206-07; Burke, 606 F.2d at 841. This court’s language in C & D Pipeline is absolutely clear that it was “[bjecause Stark was a salaried employee,” and therefore covered by the LMAB presumption, that “C & D was required to make contributions for [him] based on a minimum of forty hours per week” — not, as the majority and Lenco Blade suggest, because Stark indisputably worked 40 hours per week. 601 F.2d at 459 (emphasis added).
Furthermore, the majority’s attempts to characterize Lenco Blade’s statements concerning the LMAB resolution as a holding, rather than dicta, are simply unconvincing. In Lenco Blade, the district court had granted summary judgment against the Trusts on their claims for unpaid fringe benefit contributions for Lenco Blade’s sole employee and president, Mr. Cuillerier. Lenco Blade, 704 F.2d at 1071-73. This court concluded that a genuine issue of material fact existed concerning the threshold question of whether Cuillerier was paid hourly wages or on some other basis: if he was paid hourly wages, the 40-hour presumption would not apply. We remanded for a determination on that issue. Id. at 1071-72. The additional statements in *1307Lenco Blade concerning the 40-hour presumption were not the basis of the remand, and were intended to apply only if the district court made a specific determination —i.e., that Cuillerier was paid on a non-hourly basis — after the case had been remanded. Since these statements were not necessary to the decision in Lenco Blade, they were merely advisory, and have no binding or precedential impact in the present case. See United States v. Frue-hauf, 365 U.S. 146,157, 81 S.Ct. 547, 553, 5 L.Ed.2d 476 (1961). Because these advisory statements in Lenco Blade directly contradict our holding in C & D Pipeline, we must apply the holding of C & D Pipeline.
The majority is somewhat disingenuous in referring to Lenco Blade’s interpretation of the 40-hour presumption as “the settled Ninth Circuit rule,” and citing our decision in Waggoner v. Dallaire, 649 F.2d 1362, 1369 (9th Cir.1981) for this proposition. Dallaire involved completely different issues from those in the present case, and its reference to a “settled Ninth Circuit rule” is an allusion to C & D Pipeline, not Lenco Blade, which was decided two years after Dallaire. See id.
The majority’s problems multiply when it attempts to reconcile its decision with our opinion in Kemmis v. McGoldrick, 706 F.2d 993 (9th Cir.1983), which was issued a month after Lenco Blade and did not even refer to that decision. Kemmis involved an employee who indisputably worked full-time, id. at 995, and cited C & D Pipeline for the proposition that “[f]or full-time salaried employees, employers are required to contribute based on 40 hours per week.” Id. at 997 (citing C-& D Pipeline). Kem-mis thus interpreted the 40-hour presumption as being conclusive, and read C & D Pipeline as reaching the same conclusion.
In attempting to reconcile Kemmis, the majority appears to concede that both Kemmis and C & D Pipeline interpret the 40-hour presumption as being conclusive, at least in certain cases. However, the majority contends that Kemmis limits C & D Pipeline’s applicability to cases involving full-time employees, and states that C & D Pipeline is not applicable “to the issue whether the 40-hour presumption can be rebutted for employees who work less than full-time.” Thus, the majority appears to maintain that the LMAB’s 40-hour presumption is conclusive for full-time employees, as in C & D Pipeline and Kemmis, but rebuttable for those who work less than full-time, as in Lenco Blade.
This proposed interpretation presents several difficulties. First, it directly contradicts the majority’s own interpretation of Lenco Blade as establishing that the 40-hour presumption is rebuttable in all cases. Moreover, nothing in Lenco Blade indicates that that decision was intended to apply only to part-time employees. Second, the majority’s interpretation directly contradicts its characterization of C & D Pipeline, which it borrowed from Lenco Blade, as a case that did not even involve application of the 40-hour presumption. Third, the majority’s proposed interpretation is completely unsupported by the wording of the LMAB resolution, which draws no distinction between full-time and part-time employees, and only distinguishes between employees paid by hourly wages and those who are not. The majority thus is imposing a distinction upon the parties to the LMAB resolution that they did not intend. Finally, nothing in the record indicates that Charles Minor would not qualify under the majority’s definition as a “full-time” employee of Minor Equipment,1 so it is possi*1308ble that even accepting the majority’s reading of C & D Pipeline and Kemmis, the 40-hour presumption would apply in this case.
Given the wording of the LMAB resolution, it is far more reasonable to interpret the reference to “full-time” employees in Kemmis as a reflection of the specific facts in that case, rather than as an attempt to introduce a new distinction into interpretation of the 40-hour presumption. Moreover, the Kemmis court’s failure even to mention Lenco Blade suggests that it considered Lenco Blade's statements about the 40-hour presumption to be merely advisory, as contrasted to the controlling precedent in C & D Pipeline.
Because our decisions in C & D Pipeline and Kemmis indicate that we have interpreted the LMAB resolution’s 40-hour presumption to be conclusive both before and after our decision in Lenco Blade, I would conclude that we are bound to interpret the presumption as being conclusive in this case. The majority allows a little careless advice in Lenco Blade, which is unsupported in any of our other decisions, to distort the facts and the holdings of this circuit’s cases. I find that unfortunate. I would require Minor Equipment to pay 40 hours worth of fringe benefit contributions for every week that Charles Minor worked.
. The majority nowhere explains the meaning of the term "full-time employee” for purposes of applying the 40-hour presumption under its proposed interpretation. If the term signifies only employees who work 40 hours per week, then under the majority's interpretation, the conclusive presumption essentially is meaningless: it would simply provide that if the Trusts can establish that an employee works 40 hours per week, he will be presumed to work 40 hours per week. Moreover, it would reduce to a truism Kemmis’s statement that “[f]or full-time salaried employees, employers [must] contribute based on 40 hours per week." 706 F.2d at 997.
Thus, it would be more plausible to interpret the term "full-time employee” in this context as applying to some employees who work less than 40 hours per week. As a result, it is not clear from the record in this case or from the majori*1308ty’s opinion whether Charles Minor should be considered a "full-time” employee.