Carpenters and Millwrights Health Ben. Trust Fund v. Gardineer Dry Walling Co., 76-1842

Decision Date10 April 1978
Docket NumberNo. 76-1842,76-1842
Citation573 F.2d 1172
Parties98 L.R.R.M. (BNA) 2103, 83 Lab.Cas. P 10,525 CARPENTERS AND MILLWRIGHTS HEALTH BENEFIT TRUST FUND, Centennial State Carpenters Pension Trust Fund, Colorado Carpenters Vacation Trust Fund and Colorado Carpenters Joint Apprenticeship Trust Fund, Plaintiffs-Appellees, v. GARDINEER DRY WALLING CO., a Colorado Corporation, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Robert S. Good, Denver, Colo., for defendant-appellant.

Pamela M. Martin, Denver, Colo. (John D. Thompson and Gorsuch, Kirgis, Campbell, Walker & Grover, Denver, Colo., on brief), for plaintiffs-appellees.

Before McWILLIAMS, BARRETT and McKAY, Circuit Judges.

McKAY, Circuit Judge.

In this case the trial court held that Gardineer Dry Walling Company (Gardineer) must make contributions for certain of its employees to several employee benefit trust funds. The trustees' claims are based on three successive collective bargaining agreements between Gardineer and the carpenter's union and on trust instruments referred to in the collective bargaining agreements. Both the collective bargaining and the trust agreements were submitted jointly by the parties as evidence. Other evidence extrinsic to the collective bargaining agreements was introduced by Gardineer to support its interpretation.

Since Gardineer admits being bound by the collective bargaining agreements but disputes the trial court's interpretation of them, the central issue on appeal is whether the trial court's interpretation should be sustained. Our standard of review is the same as that expressed in Palmer v. Howard, 493 F.2d 830 (10th Cir. 1974). When, as here, extrinsic evidence is admitted to aid in the interpretation of a contract, the court's finding as to the contract's meaning "is . . . a matter of fact which is not to be set aside unless clearly erroneous." Id. at 835. Applying this standard, we affirm the trial court's judgment of liability, but remand for a recalculation of damages consistent with the stipulation of the parties.

Gardineer was involved in both residential and commercial construction work. The first of the three collective bargaining agreements (Building Agreement A) covered the period from July 1967 to June 1970. The Preamble to Building Agreement A provides:

THIS AGREEMENT is made and entered into this 1st day of July, 1967, A.D. by and between Gardineer Dry Walling Company . . . and Carpenters District Council of Denver and Vicinity . . . to govern the wages and conditions of employment of carpenters in the Building Construction Industry in the area hereinafter described, all within the State of Colorado. (emphasis added)

Article III states that the agreement "specifically applies to all of the work described" as follows:

The installation of all materials and component parts of all types of ceilings regardless of their materials, composition, or method or manner of their installation, attachment or connection. . . .

All work in connection with the installation, erection and/or application of all materials and component parts of walls and partitions regardless of their material composition or method or manner of their installation, attachment or connection. . . .

Under Article VII, dealing with wages, hours and overtime, separate subtitles appear for "housing" and "commercial building construction," outlining different terms for each category of project.

The second collective bargaining agreement (Building Agreement B) covered the period from January 1970 to April 1972 and the third collective bargaining agreement (Building Agreement C) was in effect from May 1972 to April 1975. Building Agreements B and C have Preamble and scope of work language similar to that in Building Agreement A. The only significant difference between Building Agreement A and the two later agreements is that Building Agreements B and C do not have subtitles under any of their articles distinguishing "housing" from "commercial building construction."

Gardineer admits that both its residential and commercial project employees were covered by Building Agreement A, but claims that only its commercial project employees were covered by Building Agreements B and C. To support this claim, Gardineer introduced two unsigned contracts respectively called "Carpenter's Housing Construction Agreement" (Housing Agreement 1), covering the period May 1969 to April 1972, and "Carpenter's Residential Construction Agreement" (Housing Agreement 2), intended as a replacement for Housing Agreement 1. Housing Agreement 1 provides that the agreement is meant "to govern the wages and conditions of employment of carpenters in the Housing Construction Industry in the area hereinafter described," and that the agreement "shall cover all work except that which is covered by the Building Construction Agreement . . . which (is) now in effect with the union." Housing Agreement 2 provides that the agreement "covers all residential construction in the State of Colorado."

The trial court admitted these unsigned contracts over appellees' parol evidence objection, although Gardineer had never signed either of these or similar, exclusively housing, agreements. Only two bits of evidence appear in the record that might explain the use or significance of these unsigned housing contracts. The first is testimony by a union official that such agreements were used "to cover employers in the residential market," with no elaboration of what was meant by "employers" or "residential market." The second is the confusing testimony of Gardineer's president, discussed below, concerning his subjective understanding of the coverage of Building Agreements B and C.

Gardineer first claims that the existence of Housing Agreements 1 and 2, coupled with the absence of specific reference to "housing" and "commercial building construction" in Building Agreements B and C, proves that in 1969 the building industry changed its practice of using one comprehensive labor agreement covering both types of construction to a practice of using two, mutually exclusive agreements covering respectively housing and commercial construction projects. Gardineer admits that the phrase "Building Construction Industry" (italicized in the Preamble language quoted supra ) in Building Agreement A included both residential and commercial project employees, but claims that, when used in Building Agreements B and C, the phrase took on a new meaning which included only commercial and excluded residential project employees. Thus, because it never signed either of the housing agreements, Gardineer urges the court to infer that it is under no obligation to contribute to the trust funds for its residential employees.

We assume, without deciding, that Housing Agreements 1 and 2 were properly admitted. On the basis of these documents and the reasonable inferences that could be drawn therefrom, the trial court could have accepted Gardineer's interpretation of its contract with appellees. The trial court chose not to do so, and found instead:

The fact that the union may have entered into some collective bargaining agreements covering less than the entire "Building Construction Industry" (for example residential and housing construction only) is no logical or reasonable basis for construing the term "Building Construction Industry" used in all of the collective bargaining agreements to which defendant was a party, as not including residential and housing construction.

The conclusion of the trial court is not clearly erroneous but rather is consistent with the evidence. On its face, the operative language of all three collective bargaining agreements remains essentially the same. The term "Building Construction" appears in each of the agreements with no internal indication that its meaning is more limited in one agreement than in another. The general, apparently comprehensive description of...

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