              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


                                 5
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


                                  7
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.

                                 8
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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