REVISED, February 19, 1998
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-30688
Summary Calendar
WILLIAM T. FIRESHEETS, II, Trustee;
JOSEPH M. ARDOIN, Trustee,
Plaintiffs-Appellants,
VERSUS
A.G. BUILDING SPECIALISTS, INC.,
Defendant-Appellee,
Appeal from the United States District Court
For the Middle District of Louisiana
February 18, 1998
Before REYNALDO G. GARZA, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:
This case comes from a decision of the United States
District Court for the Middle District of Louisiana, Judge Frank
J. Polozola, presiding. The District Court granted summary
judgment in favor of the Defendant-Appellee, A.G. Building
Specialists, Inc. (“A.G. Building”). The Plaintiffs-Appellants,
William T. Firesheets (“Firesheets”) and Joseph M. Ardoin
(“Ardoin”), acting in their capacity as trustees for the
Carpenters Local 1098 (“Local 1098") Welfare Fund, Pension Trust,
and Educational and Training Program Trust (collectively, “the
Trust Funds”) timely appealed, and the matter now lies before
this panel.
Background
A.G. Building and its employees had a collective bargaining
agreement (the “Agreement”) which was in effect from May 1, 1982
to April 30, 1984. One of the requirements of this Agreement was
that A.G. Building had to make contributions to the employees’
Trust Funds. The extent to which, if at all, the contribution
requirements of the Agreement lasted beyond April 30, 1984, is at
the core of this dispute.
In a letter dated January 17, 1984, Albert Greene
(“Greene”), the principal owner of A.G. Building, advised Local
1098 of A.G. Building’s withdrawal from a multiemployer
bargaining unit, and its desire to terminate the Agreement. Soon
thereafter, Greene met with representatives of Local 1098 to
negotiate for a new collective bargaining agreement. No new
collective bargaining agreement was prepared or signed by the
parties, however. Since 1984, A.G. Building has solely set,
determined, and modified the terms and conditions of employment
for its employees, with no input from or bargaining with Local
1098.
A.G. Building continued to make voluntary contributions to
the Trust Funds on behalf of some of its employees for
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approximately ten years after the expiration date of the original
Agreement. Beginning in January of 1988, contributions were made
for only two individuals. Contributions were made for only one
employee from April, 1992, until the last contribution in 1994.
During this time, A.G. Building continued to file contribution
reports, and complied with changes made in the contribution
rates.
Firesheets and Ardoin, in their capacities as trustees of
the Trust Funds, filed suit on December 8, 1995, naming A.G.
Building as defendant, and alleging that A.G. Building had failed
to make certain contributions to the Trust Funds, as (they
allege) was required under the Agreement. Following discovery, a
Joint Motion to Bifurcate was filed to determine separately the
issues of liability and damages in this matter. Both sides filed
for summary judgment in their favor with regard to liability, and
the District Court granted summary judgment in favor of A.G.
Building, and against the Trust Funds. The Trust Funds timely
appealed.
Standard of Review
The standard of review for the granting of a motion for
summary judgment is de novo. BellSouth Telecommunications, Inc.
v. Johnson Bros. Group, 106 F.3d 119, 122 (5th Cir. 1997);
Guillory v. Domtar Industries, Inc., 95 F.3d 1320, 1326 (5th Cir.
1996). Summary judgment is warranted when “the pleadings,
depositions, interrogatories, and admissions on file, together
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with the affidavits, if any, show that there is no genuine issue
as to any material fact.” FED.R.CIV.P. 56(c); Celotex v.
Catrett, 477 US 317, 322 (1986).
Analysis
The Trust Funds correctly state that for A.G. Building to be
liable for failure to make contributions, the Trust Funds must
show there was a collective bargaining agreement between A.G.
Building and Local 1098. The Trust Funds argue that the District
Court erred in not finding a valid agreement between the parties.
They basically have three independent arguments: (1) the original
Agreement did not terminate, (2) a new collective bargaining
agreement was reached, as shown by certain notes and documents
and A.G. Building’s conduct, or (3) A.G. Building is bound by its
conduct over the years to continue making contributions under
provisions of §302(c) of the National Labor Relations Act, 29 USC
§151, et seq. All of these arguments fail. We hold that the
District Court did not commit reversible error, and we affirm its
decision.
The first argument is the simplest to dispose of. The
Agreement, by its own terms, terminated at midnight on April 30,
1984. The preamble of the Agreement required that any
modification to the Agreement had to be set forth in writing.
Local 1098 was given written notice of A.G. Building’s intentions
to terminate the Agreement over three months before the
termination date. No written modifications were made to the
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original Agreement to extend it, and the counsel for the Trust
Funds admitted during oral argument at the trial court level that
Greene’s letter expressing his intent to terminate the Agreement
was sufficient to cancel the Agreement. The original Agreement
died at midnight of April 30, 1984, and nothing was done to
resurrect it. This argument fails.
Next, the Trust Funds argue that a new collective bargaining
agreement was made. The Trust Funds use this circuit’s decision
in NLRB v. Haberman Construction Co., 641 F.2d 351 (5th Cir.
1981) as a starting point. They point out that this circuit has
held that “adoption of a labor contract is not dependent on the
reduction to writing of [the parties’] intention to be bound.
Instead what is required is conduct manifesting an intention to
abide by the terms of the agreement.” Id. at 355, 356 (citations
omitted). The Trust Funds state that A.G. Building’s conduct
shows an intention to be bound, because: A.G. Building continued
to make contributions to the Trust Funds after the expiration
date of the Agreement, A.G. Building continued to file monthly
contribution reports which included language stating that it was
bound by provisions of the agreements with Local 1098, and
because of the existence of certain notes from the negotiations
for a new agreement which discuss details of possible
arrangements.
A.G. Building responds that, as stated previously, the old
Agreement was terminated, that notes from the negotiations do not
evidence any agreement, and those notes are not sufficient to
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constitute a labor contract. A.G. Building further states that
Haberman is distinguishable because A.G. Building’s conduct is
not consistent with the formation of an agreement, and has
behaved in a manner inconsistent with the original Agreement.
For example, A.G. Building hired nonunion carpenters, set wages,
and made Trust Fund contributions only for those employees who
asked for contributions. Also, A.G. Building did not adjust its
wage rates upon receipt of notices for project agreements by
Local 1098, and did not give holiday pay to its employees. These
actions were inconsistent with the actions of a firm which has
created a new collective bargaining agreement, and belies any
claim of intent to be bound by a new agreement, A.G. Building
argues.
The Trust Funds’ strongest piece of evidence on this point
is the fact that A.G. Building continued to make the
contributions and file the contribution reports. These
contribution reports contain certain language about binding the
employer to a collective bargaining agreement. A.G. Building
states that these payments were done voluntarily at the specific
request of certain employees of the firm, and the payments (and
clerical work done to record the payments) were never intended to
imply or confirm the existence of a collective bargaining
agreement.
We agree with Judge Polozola’s conclusion on this issue. He
stated that A.G. Building’s actions were not consistent with the
existence of a collective bargaining agreement, and that the
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contribution payments do not evidence an intent to be bound.
Also, this circuit held in Carpenters Amended & Restated Health
v. Holleman, 751 F.2d 763, 770 (5th Cir. 1985), that the fact
that an employer made voluntary contributions to a union trust
fund for certain employees, and filed reports for those
contributions, did not bind the employer. Judge Polozola cited
Holleman in his decision as precedent on this issue, and he was
correct in doing so. A.G. Building’s actions, by and large, are
inconsistent with the creation of a new agreement, and the
existence of some boilerplate language on the record-keeping
documents for the contributions does not bind A.G. Building.
The last issue is whether the District Court erred in
finding that there was no valid agreement under the purview of
§302(c) of the National Labor Relations Act. The Act prohibits
payments by an employer to unions or their representatives,
though an exception under §302(c) permits employers to make
payments to trust funds established for the benefit of employees
only if the payments to be made are specified in a written
agreement.
The lead cases on this point are Moglia v. Geoghegan, 403
F.2d 110 (2nd Cir. 1968), cert. denied, 394 U.S. 919 (1969), and
Bricklayers Local 15 v. Stuart Plastering Co., 512 F.2d 1017 (5th
Cir. 1975). In Moglia, the Second Circuit held that without
signatures on the collective bargaining agreement and the trust
agreement attached to it, a written agreement under §302(c) did
not exist. Moglia, 512 F.2d at 118. In Bricklayers, this
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circuit found that a written agreement under §302(c) did not
exist because: (1) the employer did not sign the trust
agreements, (2) the collective bargaining agreement anticipated
the creation of only one of the two trusts in question, and (3)
the trusts were created after the collective bargaining
agreement, and therefore could not have been incorporated by
reference into the original agreement.
The Trust Funds try to distinguish these cases by stating
that the existence of a previous, agreed-upon, collective
bargaining agreement makes this a different situation. They are
incorrect. First of all, Bricklayers (as Judge Polozola
correctly pointed out) requires strict compliance with the
written agreement requirement of §302(c). Also, the Trust Funds
basically base their argument on the same course of conduct
rationale which, as stated previously, fails in this case. The
old Agreement was dead. Its previous existence does not make a
difference here, and the handful of notes and records that the
Trust Funds put forth as written evidence under §302(c) does not
pass muster as proof of a written agreement. To allow such
documentation to suffice for a written agreement under §302(c)
would not only be inconsistent with precedent,1 but would
undermine the congressional intent for §302(c), which is to
1
In addition to the cases cited, the Sixth Circuit held in
Merrimen v. Paul F. Rost Elec. Inc., 861 F.2d 135 (6th Cir. 1988),
that an employer was not liable for pension contributions even
though that employer voluntarily made such contributions, because
of the absence of its signature on the collective bargaining
agreement. The Sixth Circuit refused to bind the employer in this
case, and Judge Polozola cited this case in his decision.
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create a “perfectly definite fund,” in which the parties all know
what their rights are. Bricklayers, 502 F.2d at 1025. A.G.
Building is not bound under §302(c) of the National Labor
Relations Act, and the District Court was correct in stating as
much.
Conclusion
Based on the foregoing, we find no reversible error in the
decision of the District Court, which granted summary judgment in
favor of the Defendant-Appellee. Therefore, we AFFIRM the
decision of the District Court.
AFFIRMED.
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Firesheets v. A G Building Spec
Combined Opinion