dissenting.
Because petitioner, a general contractor, employed a nonunion subcontractor, who did not subscribe to the provisions of the collective-bargaining agreement, he was required to maintain records of the jobsite hours worked by the subcontractor’s employees and to be “liable for payment of these employees [sic] wages, travel, Health-Welfare and Dental, Pension, Vacation, Apprenticeship and CIAP contributions in accordance with this Agreement.” Record 82-83. The Oregon Supreme Court described this language as making petitioner liable “for payments into the trust funds for the employees of the nonunion subcontractor.” This means to me that the payments were on behalf of the subcontractor’s *412employees. It also appears a straightforward reading of the contractual language that the “subcontractors . . . employees . , . contributions” be made by petitioner. Had the subcontractor been eligible to make these contributions, they surely would have been made for the benefit of his employees. The sensible inference from the contractual language is that the contractor, the petitioner, intended the same result. Common sense tells us that petitioner had no intention of making contributions with respect to employees who could never benefit.
As construed in this way, the provision is illegal because the employees of the noncontributing contractor may not be a beneficiary of the trust funds, even though the contributions are made with respect to them. But this would not be the first time that parties have drafted unenforceable contractual provisions, either by design, accident, or mistake.
I do not understand why the Court feels such compulsion to save the contract by construing it to mean that the payments at issue are not for the benefit of the contractor’s employees at all and are not made on their behalf. The result of this construction is that in addition to the full contract price paid to the subcontractor, petitioner must pay into the trust funds 96 cents for each jobsite hour worked by the subcontractor’s employees, these funds to be held for the employees of the contributing employers but excluding the subcontractor’s employees. This is simply a penalty for employing a nonsignatory subcontractor, a penalty the Court creates in construing the contract as it does. With all due respect, I dissent and would reverse the judgment below.