                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 01 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


TRUSTEES OF THE SOUTHERN                         No. 09-55766
CALIFORNIA INTERNATIONAL
BROTHERHOOD OF ELECTRICAL                        D.C. No. 08-CV-4211 (R) (JTL)
WORKERS-NATIONAL ELECTRICAL
CONTRACTORS ASSOCIATION
PENSION PLAN, TRUSTEES OF THE                    MEMORANDUM *
SOUTHERN CALIFORNIA IBEW-
NECA HEALTH TRUST FUND,
TRUSTEES OF THE LOS ANGELES
COUNTY ELECTRICAL
EDUCATIONAL AND TRAINING
TRUST FUND, TRUSTEES OF THE
NATIONAL ELECTRICAL BENEFIT
FUND, TRUSTEES OF THE INLAND
EMPIRE LABOR MANAGEMENT
COOPERATION COMMITTEE,
TRUSTEES OF THE SOUTHERN
CALIFORNIA IBEW-NECA LABOR-
MANAGEMENT COOPERATION
COMMITTEE, TRUSTEES OF THE
NATIONAL IBEW-NECA LABOR
MANAGEMENT COMMITTEE,
TRUSTEES OF THE RIVERSIDE
COUNTY ELECTRICAL HEALTH &
WELFARE FUND, LOS ANGELES
ELECTRICAL WORKERS CREDIT
UNION, CONTRACT COMPLIANCE
FUND, NATIONAL ELECTRICAL


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
INDUSTRY FUND, and
ADMINISTRATIVE MAINTENANCE
FUND,

               Plaintiffs-Appellees,

  v.

DC ASSOCIATES, INC.,

               Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                         Argued and Submitted May 6, 2010
                               Pasadena, California

Before:        O’SCANNLAIN and TALLMAN, Circuit Judges, and BLOCK,
               District Judge.**

       DC Associates, Inc. (“DC”) appeals a summary judgment in favor of the

trustees of various employee-benefit plans (collectively, “the Trustees”). We

assume familiarity with the facts and prior proceedings. Reviewing de novo and

taking the evidence in the light most favorable to DC, see PhotoMedex, Inc. v.

Irwin, 601 F.3d 919, 923 (9th Cir. 2010), we conclude that there is a genuine issue



          **
             The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.

                                         2
of material fact as to whether DC was bound to the terms of the Sound Agreement

with respect to work performed by members of IBEW Local 11 in Los Angeles

County. We therefore reverse the summary judgment and remand for trial.

                                          I

      It is undisputed that DC signed a letter of assent binding it to the Sound

Agreement with respect to work performed by members of the IBEW locals for

Riverside and San Bernardino Counties. The agreement, however, is subject to

two plausible interpretations as to the effect of that assent. The Trustees’ position

that an employer who agrees to be bound with respect to work performed in any

covered jurisdiction is bound with respect to work performed in all covered

jurisdictions is supported by declarations from the parties who negotiated the

agreement. DC’s position that it is bound only with respect to work performed in

those jurisdictions where it has explicit agreements with the corresponding locals is

supported by (1) the existence of the Alarm Agreement, (2) declarations by the

negotiating parties that the Alarm Agreement was specifically created to supersede

the Sound Agreement with respect to alarm work performed in Los Angeles

County (Local 11’s jurisdiction), and (3) evidence that those parties continued to

negotiate extensions of the Alarm Agreement long after DC signed the letter of

assent to the Sound Agreement. “[W]hen an agreement’s meaning is not clear on


                                          3
its face and contrary inferences as to intent are possible, there exists an issue of

material fact for which summary judgment is ordinarily inappropriate.” Ariz.

Laborers, Teamsters & Cement Masons Local 395 Health & Welfare Trust Fund v.

Conquer Cartage Co., 753 F.2d 1512, 1518 (9th Cir. 1985).

                                           II

      Although an employer may “embark[] on a course of conduct evincing an

intention to be bound” to a collective bargaining agreement, Haw. Carpenters

Trust Funds v. Waiola Carpenter Shop, Inc., 823 F.2d 289, 295 n.8 (9th Cir. 1987),

we are not persuaded that DC’s conduct conclusively establishes its acquiescence

in the Trustees’ interpretation. It is true that DC’s certified payroll reports

(“CPRs”) for public works projects listed base wage rates and job classifications

that were consistent with the Sound Agreement. However, Douglas Latham, DC’s

principal, attested that the CPRs were submitted only to demonstrate compliance

with California’s prevailing wage requirements, and that DC classified its workers

as “fire alarm technicians” until the state eliminated that category from its list of

available classifications in 2002 or 2003. Latham’s declaration was supported by a

letter from California’s prevailing wage authority to the effect that the state’s

reliance on the Sound Agreement for the prevailing wage for a particular job

classification did not bind DC to that agreement.


                                           4
      It is also undisputed that DC made some benefit contributions for work

performed in Los Angeles County in accordance with the Sound Agreement.

Latham attested, however, that those contributions were made only for work

performed by members of IBEW Local 441. DC never made contributions under

the Sound Agreement for work performed by members of Local 11.

                                          III

      Finally, the Trustees argue that the Project Stabilization Agreement (“PSA”)

between the Los Angeles Unified School District and the Los Angeles/Orange

Counties Building and Construction Trades Council required DC to make

contributions in accordance with the Sound Agreement for work on district

projects. Latham attested, however, that DC had no notice of the PSA or its terms

at the time the work was performed.

                                          IV

      We express no opinion as to which of the parties’ competing interpretations

of the Sound Agreement is correct. We hold only that the issue cannot be decided

as a matter of law and, therefore, must await resolution by a trier of fact.

      REVERSED and REMANDED.




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