Unpublished Disposition, 904 F.2d 41 (9th Cir. 1987)

MEMORANDUM^* 

Hawaii Carpenters Pension, Health & Welfare, Apprenticeship, Vacation and Holiday, and Annuity Trust Funds ("Trust Funds") appeals the district court's judgment in favor of James Shelton, Jr. ("Shelton") on his complaint for a declaratory judgment that he was not obligated to make contributions to the Trusts Funds for employees of ABC Custom Cedar Homes ("ABC"). We have jurisdiction over the district court's final order under 28 U.S.C. § 1291. We affirm.

This case turns on the question whether, in executing a short form agreement in 1987, James Shelton, Jr. General Contractor ("General Contractor") and the United Brotherhood of Carpenters and Joiners of America, Local 745, AFL-CIO ("the union") expressly agreed to exclude ABC employees from coverage under the agreement, thereby relieving Shelton of any obligation to contribute to the trust funds for ABC employees. In September 1987, the union requested that General Contractor sign a short form agreement retroactively binding General Contractor to a 1984-1987 master agreement and to trust agreements for the Trust Funds. In response to the request, General Contractor's attorney, Jeffrey Harris ("Harris"), sent the union a letter, dated September 21, 1987, that stated in relevant part:

This is to follow up on our telephone conversation of September 18, 1987.

During our conversation, you explained that ... you will now require [Shelton] to immediately sign a memorandum of agreement and certificate of receipt and acceptance backdated to September 1984 in order to avoid picketing at his project.

I replied that I wished to satisfy your demand, but to also avoid any possibility that the signed document could prejudice Mr. Shelton's position in the [declaratory relief] action. I proposed adding a letter clarifying that the signed document would not require contributions for hours worked by employees of ABC Custom Cedar Homes. I understand that you had no problem with such a clarification.

Accordingly, this is to confirm that the attached memorandum of agreement and certificate of receipt and acceptance signed by Mr. Shelton will apply only to employees of James Shelton, Jr. General Contractor, and not to employees of ABC Custom Cedar Homes (its operations were terminated before today).

Furthermore, the signed memorandum of agreement and certificate of receipt and acceptance will only require contributions to the trust funds for hour [s] worked by employees of James Shelton, Jr. General Contractor. The document will not require contributions (by either James Shelton, James Shelton General Contractor, or ABC Custom Cedar Homes) for any hours worked by employees of ABC Custom Cedar Homes before September 21, 1987. Mr. Shelton will not prejudice his position that he never signed or adopted any agreement that requires the additional contributions now demanded by the trust funds.

Mr. Shelton is signing the memorandum of agreement and certificate of receipt and acceptance today on the basis of the above clarification and understanding.

The letter included a copy of the short form agreement, which by its terms incorporated the 1984-1987 master agreement, signed by Shelton. The following condition had been added to the agreement: "Mr. Shelton is signing this document on the basis of the clarification and understanding in the attached September 21, 1987 from Jeffrey S. Harris." Shelton put his initials on the added condition.¹ 

The district court held that the terms of the September 21, 1987 agreement "clearly show a labor contract that does not cover employees of ABC," and that "ABC was expressly excluded from the ... collective bargaining agreement."²  The district court based its conclusion on the following language in the letter attached to the short form agreement:

[T]he signed memorandum of agreement and certificate of receipt and acceptance will only require contributions to the trust funds for hour [ ] worked by employees of James Shelton General Contractor. The document will not require contributions (by either James Shelton, James Shelton General Contractor, or ABC Custom Cedar Homes) for any hours worked by employees of ABC Custom Cedar Homes before September 21, 1987. Mr. Shelton will not prejudice his position that he never signed or adopted any agreement that requires the additional contributions now demanded by the trust funds.

District Court Findings of Fact and Conclusions of Law at 23-24.

We review an interpretation of a labor contract terms de novo. Pierce County Hotel Employees and Restaurant Employees Trust v. Elks Lodge BPOE No. 1450, 827 F.2d 1324, 1327 (9th Cir. 1987) ("Pierce County "). Extrinsic evidence is inadmissible to contradict an unambiguous contract term. Id. See also Kemmis v. McGoldrick, 767 F.2d 594, 597 (9th Cir. 1985).

Trust Funds contends that the district court erred by concluding that Shelton and the union excluded ABC from coverage under the 1984-1987 Master Agreement. It argues that the short form agreement executed September 21, 1987 is ambiguous, and that in fact Shelton and the union agreed only to let the question of coverage of ABC employees be decided in federal court, and not to exclude ABC employees from coverage. Trust Funds bases its argument on the following language in the agreement:

I replied that I wished to satisfy your demand, but to also avoid any possibility that the signed document could prejudice Mr. Shelton's position in the pending federal court action. I proposed adding a letter clarifying that the signed document would not require contributions for hours worked by employees of ABC Custom Cedar Homes. I understand that you had no problem with such a clarification.

According to Trust Funds, "the parties simply agreed that Shelton's trust fund liability for the ABC employees would have to be worked out in the federal court case."

We cannot accept Trust Funds' interpretation of the contract, and we agree with the district court that the contract unambiguously excludes ABC employees from coverage. We have found ambiguity in collective bargaining agreements where different provisions of the agreement conflict. See, e.g., Ariz. Laborers v. Conquer Cartage Co., 753 F.2d 1512, 1518 (9th Cir. 1985). We, however, have rejected efforts "to create an ambiguity where none is present." See Pierce County, 827 F.2d at 1327. Here, as the district court found, the contract in question is the short form agreement, including the language attached by Harris, executed September 21, 1987. That agreement by its terms only applies to General Contractor employees and excludes ABC employees from coverage. Shelton signed the memorandum of agreement with the union on the express condition that the agreement would apply only to employees of Shelton and that the agreement would not apply to employees of ABC. Under the agreement executed by Shelton and the union, Shelton was not required to contribute to the funds for employees of ABC.

The district court's judgment is AFFIRMED. The case is REMANDED to the district court for consideration of the pending attorneys fees application.