427 A.2d 479 (1981)
STATE of Maine
v.
Dana MOREY.
Supreme Judicial Court of Maine.
Argued November 13, 1980.
Decided March 26, 1981.
*480 Janet Mills, Dist. Atty., John C. Sheldon, Asst. Dist. Atty., Fred Fenton (orally), Legal Intern, Farmington, for plaintiff.
Gauvreau & Thibeault, Paul G. Thibeault (orally), Lewiston, for defendant.
Before McKUSICK, C.J., and WERNICK, GODFREY, GLASSMAN, ROBERTS and CARTER, JJ.
CARTER, Justice.
Dana Morey was convicted following a jury trial in Superior Court, Franklin County, of disorderly conduct and assault on a police officer. On appeal, Morey contends that the trial court erred in refusing to grant his motions for acquittal and that it improperly instructed the jury on both counts. We affirm the conviction for disorderly conduct and reverse the conviction for assault on a police officer.
*481 The charges against Morey resulted from a fight in Stratton and his later assault on a deputy sheriff in the Franklin County Jail. Although the testimony at trial respecting these events varied, the jury was entitled to find the following facts.
On July 10, 1979, an off-duty police officer passing through Stratton noticed Morey and another man, Michael O'Neal, fighting in the parking lot of Roger's Motel. In order to stop the fight, the officer stepped between the combatants, told Morey to leave and headed him up the street. He then turned to deal with O'Neal. When O'Neal's yells alerted him to look back, he saw that Morey had returned and "had just taken a swing." To prevent the fight from resuming, the officer then arrested Morey, and had him brought to the county jail.
While Morey was booked at the jail, he acted unruly and appeared to the booking officer, Deputy Cayton, to be drunk. As Cayton ushered Morey into a jail cell, Morey turned on the deputy, put him into a headlock, and, after the two fell, stuck his fingers into the deputy's eyes. With the help of two other officers, Deputy Cayton eventually subdued Morey.
Morey raises several issues concerning both convictions. His first two points address his conviction for assault on an officer, in violation of 17-A M.R.S.A. § 752-A(1)(B),[1] and rest on his conclusion that, under this statute, the state must prove that the defendant knew that the person assaulted was a prison official. Morey founds this conclusion on his interpretation of the policy behind section 752-A and the interaction of that section with other statutes. From that basis, he challenges the court's denial of his motion to acquit on the assault charge and the jury instructions on the elements of the offense.
In support of his motion to acquit, the defendant argued at trial that the record contained no evidence that Morey knew at the time of his assault that Deputy Cayton was a prison official. On appeal, he contends that, because that element of the offense was not proven, we must reverse his conviction. We are not persuaded. Even if his statutory analysis is correct, the defendant sees the evidence selectively. Morey did testify that he was unaware of Cayton's identify because the deputy was not wearing a uniform and instead was dressed "like inmates." Yet he also testified that Cayton and another man, also a deputy not in uniform, questioned and searched him when he first arrived at the jail. In addition, Cayton testified that Morey addressed him as "Officer" during this booking procedure. The assault occurred only after Cayton unlocked the cellblock door to allow Morey to enter.
The trial court properly denied the motion to acquit if "there was credible evidence from which the jury would be justified in believing beyond a reasonable doubt that the defendant was guilty as charged." State v. Doughty, Me., 399 A.2d 1319, 1326 (1979). The jury could find from this evidence that Morey had deduced Cayton's identity. Therefore, even though Morey testified that he did not know of Cayton's official status, we find no error in the court's denial of the motion to acquit.
We must reach a different conclusion, however, on the defendant's challenge to the jury instructions on the elements the state must prove for the offense of assault on an officer. Here, the defendant squarely presents the question, which we do not *482 have to decide on his challenge to the sufficiency of the evidence, of whether Morey must have known that his victim was a prison official. Before reaching the merits of that issue, though, we must first determine whether the defendant properly preserved the question in the trial below.
At the close of the state's evidence, the defendant requested an instruction that simple assault under 17-A M.R. S.A. § 207 would be a lesser included offense if the jury found that Morey did not know that Cayton was a police officer. The court responded that it would instruct on the lesser included offense but not on knowledge of the victim's status. The defendant did not formally object to the court's denial of his requested instructions, nor did he renew the request at the close of trial. He did, though, later object to the state's request for a further instruction that it would specifically not have to prove knowledge that the person assaulted was an officer. Because the defendant had already requested the contrary instruction, and a renewal of that request appeared futile, that objection sufficiently preserved the issue for appeal. See State v. Rice, Me., 379 A.2d 140, 144 (1977).[2]
We begin our analysis of the merits of Morey's proposed jury instruction by examining the language of three sections of Title 17-A: sections 752-A(1)(B), 207, and 11. Section 752-A(1)(B) does not specifically require knowledge or any other culpable mental state. It does, though, incorporate the definition of assault in section 207, which specifies a culpable mental state:
1. A person is guilty of assault if he intentionally, knowingly, or recklessly causes bodily injury or offensive physical contact to another.
Although the expressly required mental state applies only to the assault element of section 752-A(1)(B), section 11 requires a similar mental state for the other elements of the offense by stating as a general rule: "A person is not guilty of a crime unless he acted intentionally, knowingly, recklessly, or negligently, as the law defining the crime specifies, with respect to each element of the crime . . . ." Section 11 provides for exceptions to this rule in subsections 4 and 5.
The state directs our attention to the exception contained in subsection 4(A). This provision states:
"Unless otherwise expressly provided, a culpable mental state need not be proved with respect to . . . [a]ny fact which is solely a basis for sentencing classification. . . ."
The State compares the offense of assault on a prison official, a Class C crime, with simple assault, a Class D crime, and reasons that the element of the prison official in section 752-A is only relevant for sentencing classification. Therefore, it concludes, no culpable mental state applies to that element.
We must reject this reasoning for several reasons. First, the location of the two sections, 207 and 752-A, within Title 17-A suggests that the legislature intended a distinction between the two sections beyond differences in sentencing classification. Section 207 appears in Chapter 9, Offenses Against the Person. Rather than falling into the same chapter, which would be its logical location if only distinguished by severity of punishment, section 752-A appears in Chapter 31, Offenses Against Public Administration. In contrast to this *483 separation, the offenses and different sentencing classifications to which section 11(4)(A) clearly applies appear either juxtaposed, e. g., 17-A M.R.S.A. §§ 207 (assault) and 208 (aggravated assault) or within the same section, e. g., § 362 (classification of theft offenses); § 402 (criminal trespass). Especially where the legislature did prescribe several assault offenses within Chapter 9, we must ascribe some significance to the legislative placement of § 752-A in Chapter 31.
Additionally, the comments under sections 207 and 752-A show that the legislature intended these sections to serve different purposes. The comment to section 207 discusses the traditional division of assault into simple assault, now represented by section 207, and aggravated assault, section 208. It concludes: "The two assault sections are distinguishable on the basis of the seriousness of the harm caused or the risks to life that are posed by the defendant's conduct." The comment does not mention section 752-A. The comment to section 752-A states in part: "The policy here is to discourage people in custody from a violent response to what they see as an illegal arrest." We must conclude from this statement that, although the underlying action may be the same in both sections 207 and 752-A, the drafters intended offenses defined in the latter section to be treated separately from the other assault offenses.
Furthermore, the comment's statement of the policy behind section 752-A suggests why the exceptions in 17-A M.R.S.A. § 11(5) are inapplicable. Section 11(5) states:
If a statute defining a crime in this code does not expressly prescribe a culpable mental state with respect to some or all of the elements of the crime, a culpable mental state is nevertheless required, pursuant to subsections 1, 2 and 3, unless:
A. The statute expressly provides that a person may be guilty of a crime without culpability as to those elements; or
B. A legislative intent to impose liability without culpability as to those elements otherwise appears.
Section 752-A does not expressly provide for liability without culpability for the element of the prison official. We therefore focus on whether the legislature otherwise indicated its intent to cause that result.
In the past, we have found the requisite legislative intent not to require culpability expressed in the language of the statute and in the overall statutory context, e. g., State v. Curry, Me., 420 A.2d 1224, 1226-27 (1980); State v. Porter, Me., 384 A.2d 429, 434 (1978). We find no indication of such an intent here. Indeed, we cannot see how imposing liability for assault on a prison official without also requiring knowledge of his identity could further the specific deterrent purpose expressed by the statute. Neither can we understand why an individual who commits an assault on a person he does not know to be an official is any more blameworthy than one who commits an assault punishable under section 207 and is thus any more deserving of the greater punishment for an offense of a higher class.
In its brief, the state quotes at length from the Supreme Court's opinion in United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). There, the Court interpreted a federal statute similar to 17-A M.R.S.A. § 752-A and concluded that the statute did not require knowledge that the person assaulted was a federal official. 420 U.S. at 684, 95 S.Ct. at 1263. The state urges that we adopt the same logic. The Court, though, recognized that the federal statute had two purposes. One was to protect federal officials by granting federal jurisdiction over assaults on them. This jurisdictional purpose, the Court concluded, would best be met by imposing liability without knowledge. In contrast, the other purpose, preventing obstruction of officials, alone would require knowledge. Id. at 678-79, 95 S.Ct. at 1260-61.
The dissent, by Justice Stewart, links the second objective to that of state statutes such as ours providing for an increased punishment for assault on public officials. Of these state statutes, Justice Stewart wrote:
These statutes have a two-fold purpose: to reflect the societal gravity associated *484 with assaulting a public officer and, by providing an enhanced deterrent against such assault, to accord to public officers and their functions a protection greater than that which the law of assault otherwise provides to private citizens and their private activities. Consonant with these purposes, the accused's knowledge that his victim had an official status or function is invariably recognized by the States as an essential element of the aggravated offense. Where an assailant had no such knowledge, he could not of course be deterred by the statutory threat of enhanced punishment, and it makes no sense to regard the unknowing assault as being any more reprehensible, in a moral or retributive sense, than if the victim had been, as the assailant supposed, a private citizen.
Id. at 698-99,[3] 95 S.Ct. at 1270-71. Several states have expressed the same conclusion. See, e. g., State v. Skinner, 118 Ariz. 517, 578 P.2d 196 (1978); Dotson v. State, 358 So.2d 1321 (Miss.1978); Celmer v. Quarberg, 56 Wis.2d 581, 203 N.W.2d 45 (1973). The comment to section 752-A suggests that the code drafters applied similar reasoning. Therefore, rather than convincing us of the logic of the state's position, the reasoning of both the majority and dissent in Feola further persuades us that our statute was intended to require knowledge of the official status of the person assaulted.
As additional support for its interpretation, the state refers us to 17-A M.R. S.A. § 52(2). Section 52 allows in certain circumstances ignorance or mistake to serve as a defense. Subsection 2 states:
Although ignorance or mistake would otherwise afford a defense to the crime charged, the defense is not available if the defendant would be guilty of another crime had the situation been as he supposed.
The state evidently reasons that, because Morey would be guilty of assault if his victim was not a prison official, this section precludes him from benefiting from his possible mistaken identification. It then concludes that ignorance or mistake of the victim's status is never a defense to an offense charged under section 752-A.
Section 52 of the code has escaped judicial definition, and the section's comments do not aid us in discerning how the drafters might approach this problem. Nevertheless, we cannot agree that subsection 2 has the effect urged by the state.
First, as this case illustrates, the state's interpretation of section 52(2) conflicts with the deterrent purpose of section 752-A. If the jury believed Morey's testimony, it could have found that he reacted to what appeared as an unprovoked use of force by someone without authority. Although his conviction under 752-A would not further the deterrent policy underlying that section, according to the state's reasoning Morey would still be subject to its increased penalty if he was guilty of an assault. In addition, following the state's interpretation of section 52(2) a step further, we would have to conclude it unnecessary to prove knowledge of any element of a crime whenever a lesser included offense lacking that element exists. That result, however, too easily circumvents the express provision in section 11 requiring proof of a culpable mental state for each element.
We cannot believe that the drafters intended us to impute the significance to this section proposed by the state where it conflicts with the explicit direction of section 11 and the policy behind section 752-A. Instead, we must interpret the code sections to be consistent and harmonious. Delano v. City of South Portland, Me., 405 A.2d 222, 227 (1979). Accordingly, we reject the state's interpretation of the impact of section 52(2).
For these reasons, we find that conviction under 17-A M.R.S.A. § 752-A(1)(B) requires the state to prove that the *485 defendant knew that the victim of his assault was "a member of the staff of the institution or facility."[4] Of course, the state may prove knowledge by circumstantial evidence of the defendant's behavior. Indeed, on the present record, the jury could reasonably find that Morey did know Cayton was an officer. Where the jury did not receive the requested instruction, however, we cannot assume that it made that finding. State v. Desjardins, Me., 401 A.2d 165, 171 (1975). Neither can we dismiss the court's failure to give the requested instruction as harmless error. The jury heard Morey state on two occasions that he did not know Cayton's identity. First, Morey described his arrival at the jail:
Well, I got  Officer Hendsbee was down there. And Sperry had put me in the cruiser and I drove down to Farmington with Officer Hendsbee. And I went all the way  I come in here and I come in the front door. They unhandcuffed me over here where this place is, and I came around down here, Hendsbee stayed there. I don't even know any of them down there. One of the people there, they had plain clothes on, I couldn't tell  it just looks like normal people anyways.
Later, when recounting the events inside the cellblock, Morey stated:
I was discussing that with Sandy Burke, he was the one that was at the door. And the way I  the way I  it happened, that Cayton came over and grabbed me by the arm. I don't know if I can add this in here, but I'd like to add it. A lot of stuff wouldn't have happened if them people had uniforms on. As far as  I didn't even know who they were. To me they looked like inmates.
You know, I'm talking to Sandy Burke, he's twenty-two years old, he's dressed just like I am right today when he was in there that night. And I figured that he  I didn't even think he was anything. I didn't think Cayton was anything. They weren't in uniform.
This evidence is sufficient to raise the issues addressed by the requested jury instruction. Although we might not believe Morey's testimony, such credibility determination is properly for the jury on appropriate instruction. In the absence of the requested instruction, we cannot know if the jury even considered whether Morey knew Cayton was an officer. Yet in the face of this evidence, defendant was entitled to a jury determination of that factual issue. Therefore, we must vacate Morey's conviction for the offense of assault on a police officer.
Because of our decision to vacate the judgment, we find it unnecessary to reach the other issues raised by the defendant on his assault conviction. He does raise three contentions concerning his conviction for disorderly conduct under 17-A M.R.S.A. § 501(2) to which we must respond.[5]
First, the defendant challenges the sufficiency of the evidence of disorderly conduct and contends that the court erred by refusing to grant his motion for acquittal. We find, on the contrary, that the evidence was clearly sufficient. The arresting officer testified that, after he separated Morey and O'Neal outside the motel, Morey returned and attempted to renew the fight. The jury could properly conclude from this evidence that he had committed the offense of disorderly conduct.
*486 Second, the defendant contends that the court erred by failing to instruct the jury that voluntary intoxication could be a defense to the crime of disorderly conduct. See 17-A M.R.S.A. § 58-A. He did not request this instruction at trial, so we can recognize only obvious error. M.R. Crim.P. 30(b), 52(b). The evidence, including Morey's own testimony, does not suggest that he was sufficiently intoxicated to negate the culpable state of mind required for disorderly conduct. Therefore, the absence of this instruction was not error.
Finally, Morey argues that the jury instructions on the elements of disorderly conduct impermissibly exceeded the scope of the indictment. The indictment described Morey's criminal action outside Roger's Motel as: "knowingly challeng[ing] Michael O'Neal with physical conduct which would in fact have a direct tendency to cause a violent response by an ordinary person ..., namely, by attempting to hit or strike the said Michael O'Neal." At trial, when describing the elements of the offense, the court relied on the statutory definition to include "gestures and other physical conduct" having a tendency to cause a violent response by the person "so accosted, taunted, or challenged." The defendant concludes that this instruction was unfair because, by including actions in the statutory definition of the offense not specified in the indictment, it exceeded the charge he was prepared to defend against.
The defendant did not object to this instruction at trial, although given an opportunity to do so. There was no obvious error. The indictment adequately informed Morey of the charge against him. The state's evidence showed that Morey did take a swing at O'Neal. Any variation between the terms of the indictment and the court's instructions was harmless.
Accordingly, we find no error in Morey's conviction for disorderly conduct, and we affirm that conviction.
The entry shall be:
Judgment of conviction for disorderly conduct affirmed.
Judgment of conviction for assault on an officer set aside.
Remanded for further proceedings consistent with the opinion herein.
All concurring.
NOTES
[1]  17-A M.R.S.A. § 752-A, assault on an officer, states:

1. A person is guilty of assault on an officer if:
A. He intentionally, knowingly or recklessly causes bodily injury to a law enforcement officer while the officer is in the performance of his official duties; or
B. While in the custody in a penal institution or other facility pursuant to an arrest or pursuant to a court order, he commits an assault on a member of the staff of the institution or facility. As used in this paragraph "assault" means the crime defined in chapter 9, section 207.
2. A complaint for an assault on an officer may only be brought by the chief administrative officer of the law enforcement agency in which the officer against whom the assault was allegedly committed is a member.
3. Assault on an officer is a Class C crime.
[2]  We have in the past urged counsel to adopt "the better practice" of renewing, at the conclusion of the charge, all objections to the instructions as given by the court. State v. Rice, Me., 379 A.2d 140, 144 n.3 (1977). Such admonitions are put forth for the guidance of the bar. See State v. Hazelton, Me., 330 A.2d 919, 922 n.4 (1975). The present case and others recently before us suggest that the practice urged in Rice has not been adopted by the trial bar.

The trial court can facilitate the adoption of this practice and narrow the exposure to reversal on the basis of claimed errors in instructing the jury by providing, as a matter of routine, an opportunity for counsel at the conclusion of the charge to renew at sidebar all claims of error in the charge. Where a wise trial judge provides such an opportunity, wise counsel should have care to assure that all claims of error in the charge are renewed for the trial judge's attention and for the record on appeal.
[3]  The majority concurred with Justice Stewart's analysis of the knowledge requirement of the state statutes. Id. at 683, 95 S.Ct. at 1263. The Court in Feola concluded instead that knowledge was not required there because the federal statute went beyond the state statutes in purpose to encompass the jurisdictional element. Id. at 683-84, 95 S.Ct. at 1263.
[4]  We recognize that the facial difference in the language of subsections (A) and (B) of § 752-A may be considered to be some evidence of a different requirement in respect to culpable state of mind under each of them. We are satisfied that the other factors considered in the foregoing analysis mandate the conclusion that the Legislature did not intend to abrogate under subsection (B) the requirement that the defendant have knowledge that the victim of the alleged assault was "a member of the staff of the institution or facility," thus overriding the force of any inference to be drawn from the facial disparity.
[5]  17-A M.R.S.A. § 501(2) provides:

A person is guilty of disorderly conduct if:
2. In a public or private place, he knowingly accosts, insults, taunts or challenges any person with offensive, derisive or annoying words, or by gestures or other physical conduct, which would in fact have a direct tendency to cause a violent response by an ordinary person in the situation of the person so accosted, insulted, taunted or challenged.. . .


898 F.2d 146Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Rose MECKLEY, Plaintiff-Appellant,v.FEDERAL BUREAU OF PRISONS;  Federal Correctional Institute,Alderson;  Bernie Ellis, Unit Manager for Unit 11;Phyllis Deeds, Correctional Officer,Defendants-Appellees.
No. 89-6860.
United States Court of Appeals, Fourth Circuit.
Submitted:  Dec. 22, 1989.Decided:  Feb. 23, 1990.

Appeal from the United States District Court for the Southern District of West Virginia, at Beckley.  Charles H. Haden, II, Chief District Judge.  (C/A No. 89-1149-5)
Rose Meckley, appellant pro se.
Gary L. Call, Assistant United States Attorney, for appellees.
S.D.W.Va.
VACATED AND REMANDED.
Before DONALD RUSSELL and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:

1
Rose Meckley, a state prisoner housed at the federal prison in Alderson, West Virginia, filed a complaint under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 2671 et seq., seeking compensation for personal goods allegedly lost through the negligence of prison officials.  The district court dismissed the complaint sua sponte for failure to demonstrate exhaustion of administrative remedies.  On appeal, appellees concede that Meckley exhausted her administrative remedies when she filed her complaint and that the case should be remanded for further proceedings.  We agree with appellees' view of the record and vacate the order of dismissal.

In her complaint, Meckley stated:

2
I filed an administrative tort claim.  The regional counsel for the Bureau of Prisons, David Essig, offered to settle the claim, but for less than the amount of property Alderson lost.  I refused to accept this and was advised by Mr. Essig to file suit in the U.S. District Court.  I am filing a claim for $55.45 to cover the cost of the items Alderson lost.

3
The district court interpreted this language to mean that Meckley's administrative complaint "is apparently still pending resolution."    We disagree.  In this context, the district court should take care to construe liberally the plaintiff's allegations showing exhaustion.  If the allegations are found wanting, the court should allow the plaintiff an opportunity to amend her complaint.   See Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir.1980).  Here, a liberal construction of Meckley's allegations shows that Meckley affirmatively alleged that she had timely filed an administrative claim with the appropriate agency prior to filing her complaint in the district court.  This is sufficient to invoke federal jurisdiction under the FTCA.   See Henderson v. United States, 785 F.2d 121 (4th Cir.1986).

4
Accordingly, we vacate the order of dismissal and remand for further proceedings.  We dispense with oral argument because the facts and legal contentions are adequately presented on this record and oral argument would not aid the decisional process.

5
VACATED AND REMANDED.


227 F.3d 1150 (9th Cir. 2000)
RANDALL E. PACE, JR.; HENRY TACUB; WADE HANSON; ROSALINO BALLESTEROS, on behalf of themselves and former and current employees of Honolulu Disposal Service, Inc. and/or Alii Refuse Corporation, Plaintiffs-Appellants,v.HONOLULU DISPOSAL SERVICE, INC.; ALII REFUSE CORPORATION; CLYDE  KANESHIRO; LABORERS INTERNATIONAL UNION OF NORTH AMERICA, Local 368, AFL-CIO; The Members of the Executive Board of the Laborers International Union of North America, Local 368, AFL-CIO being Benjamin Saguibo, Norma Jimeno, Mel Cremer, Norman K. Janicki, Jr., Oliver Kupau III, Clayton Saguibo, Herbert Loo, Sally Forges, Rick Pagatpatan, Bernaldo Pascua and Larry Sadaba; HAWAII  LABORERS' TRUST FUNDS, (Hawaii Laborers' Health and Welfare Trust Fund and its trustees Harry Ushijima, Greg Muth, Albert Hamamoto, John Murchison, Mel Cremer, Elmo Sinclair, Benjamin Saguibo, Daniel Nakamura, Stephanie Mahelona, John Roxburgh Jr., and Larry Cadiz; Hawaii Laborers' Pension Trust Fund and its trustees Stanley Wada, Daniel Nakamura, Ernie Bello, Randall Ching, Wilton Ching, Anacleto Alcantra, Norman Janicki Jr., Benjamin Saguibo, Mel Cremer, Norman Janicki Sr., Larry Cadiz; Marilyn Tanaka, Larry Sadaba, John Murchison; E.S. Akin and Cynthia Tolentino; Hawaii Laborers' Training TrustFund and its trustees Anacleto Alcantra, Edwin Huligee, Richard Honjiyo, Ryan Y. Wada, Gilbert Ho; Benjamin Saguibo, Alvis McCann, Melvin Kalama, Ryan Tohara, Scott Higa, Oliver H. Kupau, III; John Roxburgh, Jr.; and Cynthia Tolentino; Hawaii Laborers' Vacation & Holiday Trust Fund and its trustees Tamateru Kodama, Leonard Song, Vincent K. Nihipali Sr., Walter Arakaki, Salvador Ambrocio, Benjamin Saguibo, Ismael Solis, Clayton Saguibo, and John Roxburgh, Jr., Hawaii Laborers' Annuity Trust Fund and its trustees Walter Arakaki, Vincent K. Nihipali Sr., Richard Honjiyo, Tamateru Kodama, Leonard Song, Melvin Kalama, Salvador Ambrocio, Clayton Saguibo, Rick Pagatpatan and Ismael Solis dba Hawaii Laborers' Pension Trust Fund dba Hawaii Laborers Training Trust Fund dba Hawaii Laborers' Vacation & Holiday Trust Fund dba Hawaii Laborers' Annuity Trust Fund); AMERICAN BENEFIT PLAN ADMINISTRATORS INC.; WAYNE CHUN, Defendants-Appellees.
No. 99-15796
U.S. Court of Appeals for the Ninth Circuit
Argued and Submitted August 3, 2000Filed September 25, 2000

[Copyrighted Material Omitted]
James J. Bickerton and William Saunders, Bickerton Saunders Dang & Bouslog, Honolulu, Hawaii, and Jerrold Y. Chun, Chun Chipchase Takayama Nagatani, Honolulu, Hawaii, for the appellants.
Wesley M. Fujimoto and Paul A. Schraff, Dwyer Imanaka Schraff Kudo Meyer & Fujimoto, Honolulu, Hawaii, for appellees Honolulu Disposal Service, Inc., Alii Refuse Corporation, and Clyde Kaneshiro.
Colleen Hanabusa, Colleen Hanabusa, A Law Corporation, Honolulu, Hawaii, for appellee The Laborers International Union of North America, Local 368, AFL-CIO.
Alfredo G. Evangelista, Evangelista & Quiban, Honolulu, Hawaii, for appellees Hawaii Laborers' Trust Funds, American Benefit Plan Administrators, Inc., and Wayne Chun.
Appeal from the United States District Court for the District of Hawaii. Helen Gillmor, District Judge, Presiding. D.C. No. CV-97-00335-HG
Before: Harry Pregerson, Michael Daly Hawkins, and M. Margaret McKeown, Circuit Judges.
McKEOWN, Circuit Judge:

1
We must resolve a conflict between the clear language of a series of collective bargaining agreements ("CBAs") and decide whether evidence of an oral agreement is admissible to supplement the terms of unambiguous CBAs. The heart of the case is a contractual rather than representational dispute, and the district court had jurisdiction to decide it. Because we conclude that the parol evidence rule bars admission of an oral agreement that not only contradicts the terms of an unambiguous CBA but would essentially eviscerate its plain language, we reverse.

BACKGROUND and PROCEEDINGS

2
Appellants, four former and current employees who have worked as roll-off drivers (the "Drivers") for Honolulu Disposal Service, Inc. ("HDS"), claim that they are entitled to wages and benefits under a series of written CBAs from 19791996 negotiated by HDS and The Laborers International Union of North America, Local 368, AFL-CIO (the "Union").

3
Appellees, HDS, the Union, and several union trust funds (the "Trust Funds"),1 argue that the Drivers are not covered by the CBAs because HDS and the Union orally agreed to limit the scope of the bargaining unit to a couple of employees not including these Drivers. Invoking the doctrine of primary jurisdiction to challenge both the district court's and our jurisdiction, appellees contend that this case boils down to a representational dispute over who is in the bargaining unit--or, to put it another way, whom the Union represents--that must be decided in the first instance by the National Labor Relations Board ("NLRB"). They alternatively argue that even if there is federal court jurisdiction, the oral agreement between HDS and the Union is admissible and enforceable and precludes the Drivers from recovering under the CBAs. The Drivers counter that this is a contractual rather than representational dispute and argue that the oral agreement, the very existence of which they question, is not admissible.

4
The genesis of this case dates back to 1978, when Liborio Cadiz, then a Union business agent, approached Clyde Kaneshiro, then vice president of HDS, after seeing him drive a refuse truck onto a construction site. After Cadiz told Kaneshiro that HDS had to sign up with the Union to haul refuse from the site, they agreed to establish a collective bargaining relationship allegedly on the oral understanding that the bargaining unit would be limited to a "couple " of HDS drivers. Kaneshiro then signed a written, Union-prepared CBA. This was the first of six CBAs at issue here.

5
This CBA, effective from 1979-81, is titled "Master Agreement By and Between" HDS and the Union. Section 1 contains a coverage provision stating, in relevant part:

6
The Company recognizes the Union as the exclusive collective bargaining representative of its  employees employed in the State of Hawaii in the  job classifications set forth in Exhibit "A," excluding  clerical employees, office employees, watchmen,  guards, part time employees who work less than  thirty hours per week, and all supervisors as defined  in the National Labor Relations Act, as amended.

7
Exhibit A lists seven classifications of workers, including "Roll-Off Driver."

8
Three sections of the CBA covering health/welfare, pension, and annuity trust funds, state, respectively, that "[t]he Company shall participate in the" fund and "shall contribute . . . for each hour worked by each employee covered by this Agreement, the following amounts" as specified in the CBA. The CBA also contains a clause prohibiting oral modification ("no-oral-modification clause"), titled "Modification of Agreement," which provides that "[t]his Agreement shall not be amended, modified, changed, altered or waived except by written document executed by mutual agreement between the parties hereto," and an integration clause,2 titled "Document Contains Entire Statement," which asserts, "[t]his document contains the entire Agreement of the parties and neither party has made any representations to the other which are not contained herein."

9
When the first CBA expired, HDS and the Union enteredinto a new CBA, effective from 1982-85, similar in relevant respects to the first. This second CBA also has no-oralmodification and integration clauses. The "Employees Covered" subsection of the section devoted to coverage is similar to the coverage provision in the first CBA; it states that "employees covered . . . are all regular full time employees of the Contractor employed in the State of Hawaii in the classifications set forth in the classification and hourly wage schedule which is attached hereto as Exhibit `A,' . . . except for office clerical employees . . . and supervisors . . . . " Exhibit A, as in the first CBA, lists the same seven classifications, including roll-off drivers. The second CBA also includes similar health/welfare, pension, and annuity trust fund provisions and adds a training fund provision requiring the contractor to participate in and contribute to the fund on the same basis as the other funds, that is, "for each hour worked by each employee covered by this Agreement."

10
The next four CBAs, spanning the years 1987-89, 1990-92, 1993-96, and 1996-99,3 contain coverage provisions, no-oralmodification clauses, integration clauses, and trust fund provisions similar to those in the second CBA, and in each case Exhibit A lists roll-off drivers as a covered classification.4

11
HDS and the Union contend that they applied the oral agreement reached in 1978 to each successive CBA, such that the bargaining unit remained limited to two or three designated people who knew they were in the unit.5 Although each of the six CBAs was prepared by the Union, none reflects this oral agreement. Indeed, HDS and the Union have submitted affidavits conceding that the bargaining unit language in the six CBAs "does not accurately reflect the oral agreement" to restrict the scope of the unit.

12
Each of the Drivers worked as a roll-off driver at HDS for some period of time between 1979 and 1996, and each claims to have performed the same work as the few HDS drivers who were in the Union. The Drivers--who are covered on the face of the CBAs, given the listing of roll-off drivers in Exhibit A, but are not covered under the alleged oral agreement-brought this class-action suit to recover wages and benefits claimed under the CBAs.

13
HDS, joined by the Union and the Trust Funds, moved to dismiss the suit, arguing that the district court lacked jurisdiction because plaintiffs' claims were representational claims within the primary jurisdiction of the NLRB. The district court denied the motion, holding that it had jurisdiction to hear the claims "to the extent that there is a contractual issue." The court relied on Cappa v. Wiseman, 659 F.2d 957 (9th Cir. 1981), in finding that it had jurisdiction to "[d]etermin[e] the validity of the CBAs and any side agreements" thereto.

14
Faced with the court's decision finding jurisdiction on contractual issues, HDS, the Union, and the Trust Funds moved for summary judgment, contending that HDS and the Union had an oral agreement limiting the bargaining unit--and thus the coverage of the CBAs--to only a couple of employees not including the Drivers. The Drivers filed a motion for partial summary judgment on the issue of liability, contending that the CBAs, on their face, covered roll-off drivers and arguing that the alleged oral agreement was both inadmissible and illegal. The court granted summary judgment in favor of HDS, the Union and the Trust Funds and then denied as moot the Drivers' motions for summary judgment and for class certification.

15
Finding Cappa to control once again, the court held that the parol evidence rule did not preclude extrinsic evidence--here the oral agreement--given that the CBAs "appear to have been a CBA form adapted to fit the agreement between the Union and HDS." The court then found that summary judgment was appropriate because the Drivers had not raised any material issues of fact regarding the oral agreement. The court rejected the Drivers' claim that the oral agreement was illegal under             302(c)(5)(B) of the Labor Management Relations Act ("LMRA"), 29 U.S.C.             186(c)(5)(B), which requires that provisions concerning trust fund payments be in writing, as well as their argument that the no-oral-modification clauses nullified the oral agreement. Finally, referencing its prior ruling on the motions to dismiss, the court noted that "if the oral agreement between HDS and the Union were not valid, the Court would not have jurisdiction to hear this case."

16
The Drivers appealed the district court's summary judgment ruling. Appellees now press their jurisdictional argument once again.6

DISCUSSION

17
We review jurisdictional challenges invoking the primary jurisdiction doctrine de novo. See, e.g., International Bhd. of Teamsters v. American Delivery Serv. Co., 50 F.3d 770, 773 (9th Cir. 1995). We also review a grant of summary judgment de novo. See Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998).

A. Standing and Jurisdiction

18
Appellees challenge the Drivers' standing to bring their claims, arguing that             301 of the LMRA limits standing to members of the bargaining unit. We disagree. The Drivers have standing to assert claims for wages and benefits under the CBAs. As in Cappa, the Drivers face an alleged oral agreement that excludes them from the bargaining unit. Cappa was permitted to sue under             301 for wages claimed under a CBA even though he lost on the merits when we ultimately concluded that the oral agreement was valid and that Cappawas therefore not part of the bargaining unit. See Cappa, 659 F.2d at 959 ("Appellant could bring this section 301 action in district court since he was seeking to recover wages to which he claimed he was entitled under the terms of the collective bargaining agreement."). The Drivers also have standing to assert claims for benefits; such claims constitute uniquely personal rights, similar to wages, conferring standing to sue under             301. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 562 (1976) ("S 301 suits encompass those seeking to vindicate `uniquely personal' rights of employees such as wages, hours, overtime pay, and wrongful discharge"); Gutierrez v. United Foods, Inc., 11 F.3d 556, 560 (5th Cir. 1994) (distinguishing between "uniquely personal rights," which are "amenable to individual enforcement, " and "a collective right of all union members," which is "reserved to the union to enforce").

19
We also disagree with appellees' contention that the Drivers' claims raise representational issues that must be decided in the first instance by the NLRB under the doctrine of primary jurisdiction. This case presents contractual issues that the federal courts have jurisdiction to entertain under             301 of the LMRA.

20
Before addressing the merits of the jurisdictional issue, we turn first to the parties' opposing views on the procedural posture of this question. The Drivers' argument that appellees had to raise the primary jurisdiction issue in a cross-appeal misses the mark. This doctrine is unlike garden-variety defenses such as in personam jurisdiction, for it implicates the "strong policy of judicial deference to" the NLRB on representation issues. Local No. 3-193 Int'l Woodworkers v. Ketchikan Pulp Co., 611 F.2d 1295, 1299 (9th Cir. 1980). Its importance is such that in Cappa, 659 F.2d at 958-59, we raised the primary jurisdiction doctrine sua sponte.

21
We also reject appellees' claim that the Drivers' failure to attack the district court's jurisdictional ruling precludes them from prevailing. Appellees argue, in essence, and in the absence of supporting authority, that they should prevail regardless of the validity of the oral agreements. Their contention is that they should prevail even if this agreement is invalid because the court asserted only limited jurisdiction when it stated in its summary judgment order that "if the oral agreement between HDS and the Union were not valid, the Court would not have jurisdiction to hear this case."

22
We note that the district court's characterization, on summary judgment, of its earlier ruling on the motions to dismiss appears somewhat narrower than its actual ruling that it had jurisdiction to hear the claims "to the extent that there is acontractual issue." More importantly, we reject appellees' argument given our de novo review of subject matter jurisdiction determinations. We also note that the court did assume jurisdiction over this case with regard to contractual issues and that its comment about limited jurisdiction in the summary judgment order did not nullify the jurisdiction which the court properly exercised.

23
"The doctrine of primary jurisdiction is a recognition of congressional intent to have matters of national labor policy decided in the first instance by the National Labor Relations Board." United Ass'n of Journeymen v. Valley Engineers, 975 F.2d 611, 613 (9th Cir. 1992) (quoting Glaziers & Glassworkers Local Union No. 767 v. Custom Auto Glass Distribs., 689 F.2d 1339, 1342 (9th Cir. 1982)). Issues falling within the NLRB's primary jurisdiction include designation of an exclusive bargaining agent and identification of an appropriate collective bargaining unit under             9 of the LMRA. See Ketchikan Pulp, 611 F.2d at 1298. Such "representational issues" are "more appropriately resolved by the NLRB" than by the courts, Hotel Employees, Restaurant Employees Union, Local 2 v. Marriott Corp., 961 F.2d 1464, 1468 (9th Cir. 1992), given the agency's "superior expertise." Valley Engineers, 975 F.2d at 613.

24
We have characterized             301,7 which gives district courts jurisdiction over contractual disputes, as an "exception to the primary jurisdiction doctrine . . . designed to afford the courts jurisdiction to resolve labor disputes that focused on the interpretation of the terms of the collective bargaining agreement." Valley Engineers, 975 F.2d at 614 (quoting Custom Auto Glass Distribs., 689 F.2d at 1342-43). Although             301 confers concurrent jurisdiction upon the NLRB and federal courts, we have recognized that district courts "must tread lightly" in areas of the NLRB's primary jurisdiction and "must continue to defer when, on close examination, section 301 cases fall within the NLRB's primary jurisdiction." Id. at 613-14. Indeed, we have warned that "end run[s] around Section 9 of the [National Labor Relations] Act .. . under the guise of contract interpretation . . . cannot be countenanced," Ketchikan Pulp, 611 F.2d at 1299-1300, and we have drawn the jurisdictional line by asking "whether the major issues to be decided . . . can be characterized as primarily representational or primarily contractual." Valley Engineers, 975 F.2d at 614 (internal quotations and citations omitted).

25
This case falls on the "primarily contractual" side of the line. "[S]tripped to essentials," Valley Engineers, 975 F.2d at 614, it turns on a question of contract interpretation, and thus is properly in federal court rather than before the NLRB. We must decide whether the plain language of a series of CBAs applies, or whether the proffered oral agreement trumps the written contract. This is a classic contractual dispute, given "representational" overtones only by the fact that appellees raised in defense an oral agreement that is inconsistent with the written contracts--an oral agreement that purports to limitthe bargaining unit.

26
In addition, "the doctrine of primary jurisdiction does not apply in determining a union's past representational status."8 United Bhd. of Carpenters v. Endicott Enters. Inc., 806 F.2d 918, 921 (9th Cir. 1986), overruled prospectively on other grounds by Mesa Verde Constr. Co. v. Northern Cal. Dist. Council of Laborers, 861 F.2d 1124 (9th Cir. 1988) (en banc), and 895 F.2d 516 (9th Cir. 1990). Here, the Drivers seek wages and benefits under CBAs that were operative from 1979 to 1996; they do not seek any determination with regard to what now constitutes an appropriate bargaining unit or with regard to whether any union now represents any HDS employee. Accordingly, we hold that the district court had jurisdiction to hear this case.

B. Parol Evidence Rule

27
Appellees concede that the CBAs, on their face, cover roll-off drivers but argue that evidence of the oral agreement restricting the scope of the bargaining unit is admissible and overrides the written contracts. We disagree. Faced with clear, unambiguous written agreements containing integration clauses and no-oral-modification clauses, and in the absence of language acknowledging any supplemental agreements, we hold that the parol evidence rule bars introduction of evidence of a proffered oral agreement that directly contradicts a key term of the written contracts.

28
Although the parol evidence rule is not applied as strictly in the context of collective bargaining agreements,9 it still operates to bar extrinsic evidence of an agreement inconsistent with an unambiguous writing.10 See Pierce County Hotel Employees & Restaurant Employees Health Trust v. Elks Lodge, 827 F.2d 1324, 1327 (9th Cir. 1998). In Pierce County, an employer sought to introduce several types of extrinsic evidence--including oral "side agreement[s]" with a union "exempting temporary workers from contributions" to trust funds--to defend against a suit brought by the trust funds to recover unpaid contributions accruing from 1980 to 1985 under a series of CBAs signed in 1974, 1977, 1980, and 1983. Id. One of the oral agreements, as evidenced by a letter of confirmation in 1979, was made prior to the 1980 and 1983 CBAs but after the 1974 and 1977 CBAs; the other was made in 1983, when the parties, negotiating the 1983 CBA, again orally agreed to exempt temporary workers from the trust fund contribution provisions.11See id. at 1326. We held that "[e]xtrinsic evidence is inadmissible to contradict a clear contract term, but if a term is ambiguous, its interpretation depends on the parties' intent . . . in light of earlier negotiations, later conduct, related agreements, and industrywide custom." Id. at 1327 (citations omitted). Applying this rule to the circumstances in Pierce County, we affirmed the exclusion of extrinsic evidence:

29
The Lodge has attempted to create an ambiguity  where none is present. Articles XX and XXI require  contributions for any person performing work under  the agreement, meaning any employee in the bar gaining unit as defined in Article I.12  The class of  bargaining unit employees is not limited to union  members. The contribution provisions can reason ably be read but one way: the Lodge must make con tributions for any covered employee, whether or not  a union member. Since the agreements unambigu ously require contributions for temporary employees,  the court correctly disregarded extrinsic evidence of  the parties' intent.

30
Id. (footnote added).

31
Although Pierce differs from this case in that the oral agreements there were made on two occasions after the inception of the bargaining relationship between the employer and the union, see id. at 1326, it demonstrates that evidence of prior or contemporaneous oral agreements is inadmissible to contradict an unambiguous written contract.13 Neither the 1979 nor the 1983 oral agreement could be used to interpret the written CBAs because they directly contradicted clear contract terms. In rejecting the employer's alternative claim that the agreements were permissible modifications to the CBAs, we reiterated this point when we specified that the 1979 letter showing the parties' prior oral agreement was "inadmissible to contradict the unambiguous terms of the 1980 contract." Id. at 1328.

32
Here, as in Pierce County, the CBAs are unambiguous, extending coverage to "all regular full time employees of the Contractor employed . . . in the classifications set forth in . . . Exhibit `A,' " and the proffered oral agreement contrasts starkly with the written language. The oral agreement to restrict the bargaining unit to a handful of drivers is unquestionably inconsistent with the straightforward and broad coverage provisions of the CBAs. The gap between "all" employees listed in Exhibit A and a "couple" of drivers could hardly be more dramatic.

33
Faced not only with this direct contradiction on a crucial term of coverage, but also with provisions in the CBAs that specifically disavow supplemental oral agreements, we conclude that the parol evidence rule operates to bar consideration of the oral agreement. Notable in this case is the inclusion of a "zipper clause" in each CBA--so called because the combination of the integration and no-oral-modification clauses is intended to foreclose claims of any representations outside the written contract aside from those made in another written document executed by the parties. Cf. Merk v. Jewel Food Stores, 945 F.2d 889, 893 (7th Cir. 1991) ("If an agreement is completely integrated, . . . not even evidence of a `consistent additional term' may be introduced to elucidate the writing." (citation omitted)).

34
Also notable is the absence of any language even hinting at the possibility of supplemental agreements made prior to or contemporaneous with any of the CBAs--or, for that matter, any supplemental oral agreements made thereafter and somehow applied to a series of six written CBAs covering some twenty years. On this basis, Cappa is clearly distinguishable,14 for there the CBA "expressly recognize[d] the existence of supplementary agreements."15Cappa v. Wiseman, 469 F. Supp. 437, 440 (N.D. Cal. 1979), aff'd, 659 F.2d at 960 (adopting the reasoning and decision of the district court on the merits). In Cappa, the plaintiff sued for wages under a CBA negotiated by a union and two employers' associations and signed by the defendant company, which was not a member of either association. Id. at 438. The company, which employed only one person who regularly performed work covered by the CBA, agreed to execute the CBA with the supplemental oral proviso that it would apply only to that individual. Id. Over the course of successive CBAs, the parties, "consistent with their initial understanding, . .. applied the terms thereof to a single employee." Id. The company eventually hired a second employee, the plaintiff, to perform work covered by the job classifications contained in the CBA, but he did not receive the wages and benefits provided for in the CBA. Id. at 438-39. After he was terminated, he sued for union wages. Id. at 439.

35
Here, as in Cappa, appellees proffer an oral agreement that, although never committed to writing, is alleged to be part and parcel of the written CBAs. But unlike Cappa, the CBAs are not ambiguous on their face, nor do they contain any provision recognizing the possibility of supplemental agreements. Rather, they expressly refer to the Union as the "exclusive collective bargaining representative" for employees in the job classifications set forth in Exhibit A. In all of the CBAs, each Exhibit A lists roll-off drivers, and there are no open-ended provisions contemplating that other agreements might exist and continue in force. On the contrary, the CBAs contain integration and no-oral-modification clauses, as noted above, the purpose of which is to disavow and disclaim just the sort of oral agreement proffered here. Precisely the opposite was true in Cappa, where two provisions referenced the possibility of supplemental agreements, and another made the ambiguouspronouncement that "particular characteristics of certain firms must be recognized." Cappa, 469 F. Supp. at 440. Under these circumstances, we cannot sanction the introduction of parol evidence that would eviscerate the very essence of the contracts. The district court erred in admitting evidence of the proffered oral agreement.

CONCLUSION

36
For the foregoing reasons, we conclude that there is federal court jurisdiction over this case, reverse the district court's judgment,16 and remand for further proceedings consistent with this opinion.

Notes:

1
 For ease of reference, we follow appellees' practice of classifying the numerous defendants into three groups, referred to here as HDS, the Union, and the Trust Funds. We note that HDS and Alii Refuse Corporation concede that they are a single employer; unless otherwise specified, "HDS" will be used to refer to both companies. Several individuals are also named in this suit but need not be separately identified for purposes of this opinion.

2
 Likewise, in another section, the CBA states that "this Agreement is the sole Agreement between the parties" and that "all matters and conditions properly the concern of negotiation and agreement between the parties hereby are covered by the terms of this Agreement."

3
 The 1996-99 CBA was voided by a settlement agreement that HDS and the Union accepted following issuance of an NLRB complaint alleging that they had committed unfair labor practices in 1996 by entering into the CBA even though the Union did not represent a majority of the employees in the bargaining unit and had not been recognized as their representative.

4
 Starting with the third CBA, the number of classifications listed in Exhibit A began to vary; the 1987-89 and 1990-92 CBAs list only one classification, the 1993-96 CBA lists three, and the 1996-99 CBA lists twelve. In each case, however, roll-off drivers are listed.

5
 From time to time, HDS, through Kaneshiro, added employees (other than the Drivers) to the unit. Cadiz's deposition testimony suggests that additions were made when he or others policing the jobsite saw non-Union drivers coming onto the site. Kaneshiro testified in his deposition that he had "no basis" for deciding which employees would be in the Union.

6
 No party has appealed the district court's ruling on the motions to dismiss. On September 17, 1999, a motions panel of this court denied HDS's motion to dismiss for lack of jurisdiction without prejudice to renewing the argument before this panel.

7
 Specifically,             301 provides that "[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . . , or between any such labor organizations, may be brought in any district court of the United States . . . ." 29 U.S.C.             185(a).

8
 In so holding, we approved dicta from an earlier case in which we stated: "The [NLRB] has expertise in determining the majority status of a union at any given time. It has no apparatus for determining a union's past status. . . . Recreation of past relationships for the purpose of resolving factual disputes is one of the traditional functions of a trial court, and not a process in which the N.L.R.B. has any extraordinary expertise. Therefore, in this opinion we do not extend the District Court's jurisdiction into an area in which the N.L.R.B. exercises exclusive authority." See Endicott, 806 F.2d at 921 (alteration in original)(quoting Todd v. Jim McNeff, Inc., 667 F.2d 800, 804 (9th Cir. 1982), aff'd, 461 U.S. 260 (1983)).

9
 See, e.g., Cappa v. Wiseman, 469 F. Supp. 437, 439-40 (N.D. Cal. 1979) ("Restricting the interpretation of a collective bargaining agreement to its express terms is extremely unrealistic in circumstances where, as here, the parties have not actually negotiated the agreement themselves, but have attempted to adapt the terms of an industry-wide agreement to conditions in the workplace of a relatively unique .. . independent employer."), aff'd, 659 F.2d at 960 (adopting the reasoning and decision of the district court on the merits); Mohr v. Metro East Mfg. Co., 711 F.2d 69, 72 (7th Cir. 1983) (holding that the parol evidence rule applies to CBAs but that "sensitivity to context is required " in deciding "whether the premise for applying the rule to a particular contract--that a written agreement or agreements were intended to be a complete expression of the agreement between the defendants--is present").

10
 We have taken care not to sanction the admission of parol evidence where the proffered evidence contradicts the written contract. See, e.g., Syufy Enters. v. Northern Cal. State Ass'n of IATSE Locals, 631 F.2d 124, 126 (9th Cir. 1980) ("We do not hold that an arbitrator may rely upon negotiating history to contradict express provisions of a collective bargaining agreement. The arbitrator in this case relied upon credible, documentary evidence of the party's intent to extend the coverage of the contract, not to contradict it."). Appellees cite no case admitting parol evidence that is wholly inconsistent with the terms of a written CBA. Cappa, as explained infra, is distinguishable given its explicit recognition of the possibility of supplemental agreements.

11
 Appellees similarly contend that HDS and the Union renewed their oral understanding with each new CBA.

12
 We had already concluded that
Article I of each collective bargaining agreement recognizes the Union as the exclusive bargaining agent of all Lodge employ ees working in the specified classifications. Employees are defined as all Lodge employees excluding office employees, owner-supervisors and their close relatives. Thus, nonunion tem porary employees performing work in the agreements' specified classifications are members of the bargaining unit and are defined as employees under the agreements.
Pierce County, 827 F.2d at 1327.

13
 Other circuits concur in this approach. See, e.g., Brown-Graves Co. v. Central States, Southeast & Southwest Areas Pension Fund, 206 F.3d 680, 683 (6th Cir. 2000) (refusing, where CBA was unambiguous, to consider parol evidence of "informal arrangement" between employer and union to exclude casual drivers from employer's obligation under CBA to make pension contributions for new employees); Excel Corp. v. United Food & Commercial Workers Int'l Union, Local 431, 102 F.3d 1464, 1468 (8th Cir. 1996) ("When the language of the contract is clear and unambiguous, . . . as in the present case, the arbitrator may not rely on parol[ ] evidence."); Merk v. Jewel Food Stores, 945 F.2d 889, 892 (7th Cir. 1991) ("The parol evidence rule provides that evidence of prior or contemporaneous agreements or negotiations may not be introduced to contradict the terms of a partially or completely integrated writing.").

14
 In addition, the CBA in Cappa, unlike the clear CBAs that we are asked to interpret, was "far from being an unambiguous instrument, the terms of which are sufficient unto themselves . . . ." Cappa, 469 F. Supp. at 440. We also note that HDS, the employer here, was specifically named as a negotiating party to the contract, unlike the small, independent employer in Cappa that had not negotiated the contract and was not a member of one of the employer associations that did so. We need not, however, decide whether the district court was correct in concluding that the CBAs "appear to have been a CBA form adapted to fit the agreement between the Union and HDS," as was the case in Cappa, given our holding that the parol evidence rule bars admission of evidence of the oral agreement.

15
 Such provisions included: 1)"This Master Agreement shall supersede all existing agreements . . . provided, however, that special conditions of employment peculiar to certain Employers provided for in existing agreements supplementary to this Master Agreement shall be continued in force"; 2) "The Union is recognized as the sole collective bargaining agency for the employees employed in the classifications set forth in this Master Agreement and in agreements supplementary hereto in force and effect on the date of this Master Agreement"; and 3) "[B]oth parties recognize that particular characteristics of certain firms must be recognized . . . ." Cappa, 469 F. Supp. at 440 (emphasis added).

16
 Given our resolution of this appeal on parol evidence grounds, we need not decide whether             302(c)(5)(B) of the LMRA renders the alleged oral agreement unenforceable, nor need we decide whether the no oral modification clauses suffice to nullify the oral agreement or whether thereare material issues of fact as to the existence of the oral agreement.


359 So.2d 371 (1978)
Leon MORRIS et al.
v.
MERCHANTS NATIONAL BANK OF MOBILE, etc., et al.
SC 2824.
Supreme Court of Alabama.
May 26, 1978.
W. Kenneth Gibson of Taylor, Benton & Irby, Fairhope, for appellants.
Norborne C. Stone, Jr., Charles C. Partin, III of Stone & Partin, Bay Minette, Johnstone, Adams, May, Howard & Hill, Mobile, for appellees.
BEATTY, Justice.
This is an appeal by the Morrises from a summary judgment rendered against them and from an order denying their post-trial motion to set aside that summary judgment.
The present action is an outgrowth of earlier litigation, commenced in 1946, in which the Fullers sought injunctive relief against the Morrises. An injunction was issued on March 20, 1946. On October 29, 1966, more than twenty years later, this injunction was dissolved. Thereafter the Morrises brought this present action to recover damages, alleging a wrongful interruption of their business and trespass to their property, all arising out of the wrongful procurement and issuance of the injunction in the earlier action.
In view of the reasons on which we have based our decision to dismiss the appeal, it will be relevant to set out the course of the pleadings which were filed in the instant case.
The summons and complaint were filed on July 18, 1967. That complaint was demurred to on August 17, 1967. Then the *372 plaintiffs filed an amended complaint on November 22, 1968. This was followed on March 23, 1971 by the filing of a motion to strike one of the defendants, and later, on July 12, 1974, by the filing of a motion to dismiss by the defendants. On December 15, 1975 the defendants moved for summary judgment, supporting their motion with extensive documentary and other evidence. Then, on April 12, 1976 the plaintiffs filed a second amended complaint, to which the defendants filed a motion to dismiss on May 13, 1976. This was followed by the filing by the defendants on December 28, 1976 of another motion for summary judgment. The plaintiffs then filed on January 4, 1977 their answer to the defendants second motion for summary judgment. In granting the defendants' motion for summary judgment on May 12, 1977, the trial court's order included the following findings:
The Complaint filed by the Plaintiffs against the Defendants in this case seeks to recover substantial damages from the Defendants for maliciously and without probable cause obtaining an injunction enjoining the Plaintiffs from operating a sawmill on Division `A' Fractional Section 25, Township 4 South, Range 1 East in Baldwin County, Alabama (herein for convenience called Division A). The Bill for Injunction filed by the Defendants against the Plaintiffs in March of 1946, made no reference whatever to Division A and the Writ of Injunction issued on March 20, 1946, by the Circuit Court of Baldwin County, In Equity, referred only to the lands described in the Bill of Complaint which did not include Division A. An ejectment suit filed by the Defendants on or about June 22, 1946 against the Plaintiffs made no reference to Division A and the Plaintiffs disclaimed, in such ejectment suit, any interest whatever in the lands described in the Complaint except Division A and four acres in the Northwest corner of Section 38, as to which two parcels the Plaintiffs pleaded general issue. And the Court having considered the Motion for Summary Judgment and the exhibits attached thereto, together with the Plaintiffs' response thereto, the Court concludes that there is no genuine issue as to any material fact and that the Defendants are entitled to a judgment as a matter of law; . . . .
After the trial court had granted the defendants' motion for summary judgment, the plaintiffs filed on May 27, 1977 an amended complaint, the preamble to which recited:
The Plaintiffs now amend their Complaint and all its amendments by adding the following to each count or cause of action: . . . .
The defendants followed this by filing on June 9, 1977 a motion to strike the amended complaint, and alleged two grounds: (1) that it was a nullity because the court had theretofore granted summary judgment; and (2) that it was filed without leave of court contrary to the requirements contained in Rule 15, ARCP.
The plaintiffs on June 10, 1977 filed their "MOTION TO SET ASIDE ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT," and asserted as their grounds: "That they want to amend their Complaint and equity requires that this should be done."
On August 9, 1977 the trial court entered the following order (filed on August 16, 1977):
This cause coming on to be heard on Motion of the Plaintiffs to set aside a Summary Judgment entered by this Court after careful consideration on May 12, 1977, in order that the Plaintiffs might again be allowed to amend their complaint and the same being considered by the Court the Court finds that the original complaint in this cause was filed on to wit: July 18, 1967, and thereafter amended by the Plaintiffs on two different occasions, on November 22, 1968, and again on April 12, 1976. After said last amendment a voluminous Motion for Summary Judgment with Exhibits was filed by the Defendants on November 28, 1976, with said Motion being taken under advisement by this Court on January 4, 1977, after Plaintiffs had filed their answer *373 to said Motion for Summary Judgment on said date. Summary Judgment for the Defendants was entered by the Court on to wit: May 12, 1977, after several months of deliberation and study on grounds as set forth in said Summary Judgment.
Under the circumstances as hereinabove outlined it is the opinion of this Court that the Plaintiffs have failed to exercise due diligence in seeking to amend their complaint and the suggestion being made to this Court on this date that one of the Defendants, George Fuller, Sr., died subsequent to the granting of the said Summary Judgment and before the filing of the last proposed amendment by the Plaintiffs, it is this Court's opinion after careful consideration that to allow such a belated third amendment to the complaint as originally filed would be unduly prejudicial to the Defendants in this cause. Despite the liberal rules with reference to the allowance of amendments, it is this Court's opinion that a Plaintiff should be able to decide and present to the courts of this State the legal issues in any cause within a period of eleven years if a final disposition of any cause is to be attained by the judiciary of this State. . . .
Then on September 15, 1977 the plaintiffs filed a "MOTION FOR EVIDENTIARY HEARING OR IN THE ALTERNATIVE LEAVE OF COURT TO FILE AFFIDAVITS IN SUPPORT OF MOTION FOR RECONSIDERATION." As a ground for this motion the plaintiffs stated:
1. Justice requires that Plaintiffs be allowed an evidentiary hearing to develop the factual context behind the pleadings heretofore filed in said cause in order to show the Defendants would not be unduly prejudiced by filing of an additional amendment to the complaint in this matter.
That same day the plaintiffs filed their "MOTION FOR RECONSIDERATION" of (1) the order granting defendants' motion for summary judgment and (2) the order denying plaintiffs' motion to set aside so that another amended complaint could be filed. The grounds in support of this final motion were:
1. That Plaintiffs' Answer to the Motion for Summary Judgment reflected a factual dispute that could not be resolved by summary judgment.
2. The amended complaint of Plaintiffs reiterated a factual dispute that could not be resolved by summary judgment.
3. Reasonable grounds exist for the delay in this cause.
4. The amendment to the complaint which was filed May 27, 1977, did not unduly prejudice Defendants.
5. To rule otherwise would be contrary to law and equity.
This motion was denied on September 20, 1977. Notice of appeal was filed on September 22, 1977.
The principal issue raised by this sequence of pleading is whether the plaintiffs' appeal was perfected within forty-two days of an appealable judgment in accord with Rule 4(a), ARAP. In a motion to dismiss the appeal, the defendants contend that the motions filed by the plaintiffs following the summary judgment did not suspend the running of the time for filing notice of appeal. On the other hand, the plaintiffs contend that their Motion to Set Aside Order Granting Defendants' Motion for Summary Judgment was a proper Rule 59(e) motion, and that their notice of appeal, filed on September 22, 1977, was filed within forty-two days of the trial court's order denying that motion (September 20, 1977).
Of course, the plaintiffs are correct in their contention that a proper motion for reconsideration filed under the authority of Rule 59(e) will extend the time for filing notice of appeal, even though the motion for reconsideration follows the grant of a summary judgment. Papastefan v. B. & L. Construction Co., Inc., Ala., 356 So.2d 158 (1978). Their argument, however, misconceives the applicability of that principle to these pleadings. Examination of the post-trial pleadings reveals that in manner and form their purpose was either *374 to file another amended complaint or to obtain the trial court's consent to file another amended complaint. They were not designed to have the trial court reconsider the evidence on which the summary judgment was based.
Although not directly in point, Clardy v. Duke University, 299 F.2d 368 (4th Cir. 1962) discloses the reason why a motion to amend which follows summary judgment should not be treated as a motion for reconsideration which would extend the time for appeal. Following summary judgment rendered against him in that case a party moved for reconsideration, asking the trial court for leave to file an amended complaint. The trial court's denial of the motion was upheld on appeal, citing Rule 15(a), FRCP, of. Rule 5(a), ARCP. At pages 369-370 of the report this significant language appears:
If it should be held that plaintiff could amend without leave after a hearing and the granting of [a] summary judgment against him, the effect would be to clothe a litigant with the power, at any time, to reopen a case and possibly to set aside a judgment rendered against him by the court. Rule 15(a) is not to be construed so as to render Rule 12 meaningless and ineffective. . . .
See also Freeman v. Continental Gin Co., 381 F.2d 459, 469-470 (5th Cir. 1967).
Because the post-trial motions of plaintiffs did not have the effect of extending the time for filing notice of appeal, that time began to run from the date of the summary judgment, or May 12, 1977. Forty-two days from that date would have been June 23, 1977. Thus the plaintiffs' notice of appeal filed on September 22, 1977 was too late. Timely filing of the notice of appeal is jurisdictional. Rule 3, ARAP.
The appeal must be dismissed.
APPEAL DISMISSED.
MADDOX, JONES, ALMON and SHORES, JJ., concur.


14 F.3d 284w
Evelio MIRANDA-LORES, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 93-5089Summary Calendar.
United States Court of Appeals,Fifth Circuit.
Feb. 21, 1994.

1
NOTE: THE COURT HAS WITHDRAWN THIS OPINION. SEE 17 F.3d 84


19 Cal.App.3d 1019 (1971)
97 Cal. Rptr. 419
THE PEOPLE, Plaintiff and Respondent,
v.
HARVEY LEWIS, JR., Defendant and Appellant.
Docket No. 20427.
Court of Appeals of California, Second District, Division Five.
September 13, 1971.
*1021 COUNSEL
Jeannette Christy for Defendant and Appellant.
Roger Arnebergh, City Attorney, and Howard Fox, Deputy City Attorney, for Plaintiff and Respondent.
OPINION
STEPHENS, Acting P.J.
By misdemeanor complaint in two counts filed in the Los Angeles Municipal Court, defendant was charged in count I with violation of Penal Code section 148 (resisting, delaying and obstructing a public officer in the attempted discharge of his duties), and in count II, with violation of Penal Code section 415 (disturbing the peace). Defendant pleaded not guilty and after a jury trial was found guilty as charged. After the filing of a formal probation report, defendant was sentenced on each count to pay a fine, or to serve a specified number of days in county jail. An appeal was taken to the appellate department of the superior court, which affirmed the judgment (People v. Lewis, No. CR A 9645). Defendant then moved in the trial court for a stay of execution on the ground of indigency. After a hearing, the motion was denied and the previously imposed sentence was declared to be in full force and effect. Defendant then appealed to the superior court appellate department from the post judgment order denying relief. He also filed a petition for writ of habeas corpus and posted bond. The appellate department affirmed the order and on its *1022 own motion certified the appeal to this court pursuant to rule 63(a) and (c), California Rules of Court, to settle new and important questions of law, and we accepted the transfer.
The questions so presented are:
(1) What constitutes indigency of a defendant under the ruling in In re Antazo (1970) 3 Cal.3d 100 [89 Cal. Rptr. 255, 473 P.2d 999] that an indigent defendant cannot constitutionally be imprisoned for nonpayment of a fine?
(2) Where the fact of indigency has been decided by the trial judge, does the appellate court reexamine the question de novo, or do the usual rules for reviewing a trial court's determination of fact apply?
We agree with the conclusions and reasoning set forth in the opinion by Presiding Judge James G. Whyte concurred in by Associate Judges Martin Katz and Delbert E. Wong of the appellate department affirming the judgment; we therefore adopt that opinion here as our own.
(1) "In re Antazo (1970) 3 Cal.3d 100 [89 Cal. Rptr. 255, 473 P.2d 999] establishes the rule that an indigent defendant cannot constitutionally be imprisoned for nonpayment of a fine. (See also Williams v. Illinois (1970) 399 U.S. 235 [26 L.Ed.2d 586, 90 S.Ct. 2018]; Tate v. Short (1971) 401 U.S. 395 [28 L.Ed.2d 130, 91 S.Ct. 668].) In all of these cases, the fact of defendant's indigency was conceded.
"In the case at bench defendant was sentenced (on count I to pay a fine of $450 with an alternative of 45 days in jail, and on count II, to pay a fine of $25 with an alternative of two days in jail) on April 20, 1970. The judgment was affirmed on October 29, 1970 (Cr. A. 9645). No Antazo problems were raised on this appeal.
"When the remittitur had been returned and the defendant was called into the trial court to satisfy the judgment, he made a motion to stay the alternative jail sentences on the ground that he was an indigent and therefore came under the Antazo rule. The trial court held a hearing and made an express finding `that the defendant is not an indigent at this time and was not an indigent at the time of sentence on April 20, 1970.' The court then reimposed the original sentence.
"Defendant has again appealed, this time expressly limiting his appeal to that portion of the judgment which held he `was not an indigent person as defined in In re Antazo, 3 Cal.3d 100 [89 Cal. Rptr. 255, 473 P.2d 999].'
"The cases referred to above make it clear that the rule announced, i.e., *1023 against imprisonment for nonpayment, applies only to indigents. In Antazo, the court said, `We have no doubt that this practice may properly be used to compel payment of fines in proper cases.' (3 Cal.3d 100 at p. 114.) In Tate v. Short, supra, Justice Brennan, speaking for the court, said, `We emphasize that our holding today does not suggest any constitutional infirmity in imprisonment of a defendant with the means to pay a fine who refuses or neglects to do so.' (401 U.S. 395 at p. 400 [28 L.Ed.2d 130, at p. 134].)
"This leaves for determination two issues. What is indigency as used in Antazo? How is the fact of indigency determined? It is not strange that, the basic rule having been so recently established, we find no authoritative answer to either question.
"Williams refers to `any individual who, by definition, is without funds.' (399 U.S. 235 at p. 242 [26 L.Ed.2d at p. 593].) However, the words `without funds' cannot be taken literally. A man with $500 in his pocket is not without funds, yet if he has no other property or source of income, he is just as unable to pay the second $500 of a $1,000 fine as a man with nothing is unable to pay a total fine of $500.[1]
"In the field of appointment of counsel, we have some discussions of the meaning of indigency. In Williams v. Superior Court (1964) 226 Cal. App.2d 666, 672 [38 Cal. Rptr. 291], the court quotes with approval from 13 Stanford Law Review (at p. 545): `The standard applied is flexible, and contemplates consideration of such factors as amount of income, bank accounts, ownership of a home or car, outstanding debts, the number of dependents and the seriousness of the charge.' In People v. Ferry (1965) 237 Cal. App.2d 880 [47 Cal. Rptr. 324], the same language appears.
(2) "While indigency as to payment of a fine involves somewhat different considerations, we can paraphrase these holdings and say: The standard to be applied is a flexible one and contemplates such factors as amount of income, bank accounts, ownership of a home, car, or other property, tangible or intangible, the number of dependents, the cost of sustenance for defendant and his dependents, and the amount of the fine.
*1024 "Nor do we feel that indigency as to payment of a fine is an all or nothing proposition. Penal Code section 1205 provides that in misdemeanor cases, `a judgment that the defendant pay a fine may also direct that he pay the fine within a limited time or in installments on specified dates and that in default of payment as therein stipulated he be imprisoned in the discretion of the court either until the defaulted installment is satisfied or until the fine is satisfied in full.[2]
(3) "We hold that for the purpose of applying the rule of Antazo, indigency is a fact to be determined like any other fact, and that it may be total or partial and, if partial, may be of indefinite duration or temporary.
(4) "We also feel that the original determination of this fact should be for the trial judge. Trial judges are in the best position administratively to determine these matters. (See Williams v. Superior Court, supra, 226 Cal. App.2d 666 at p. 672; Morris v. Schoonfield (1969) 301 F. Supp. 158 (vacated on other grounds, 399 U.S. 508 [26 L.Ed.2d 773, 90 S.Ct. 2232]); State v. MacGregor (1968) 5 Conn. Cir. 298 [250 A.2d 721]; State v. DeJoseph (1966) 3 Conn. Cir. 624 [222 A.2d 752].) Where a proper hearing has been conducted by the trial judge, if there is any substantial evidence to support his finding, it should be affirmed. This is the usual rule for appellate review and we see no reason for departing therefrom.[3]
(5) "Tested by the foregoing rules, we affirm the decision of the trial court. A full hearing on the question of indigency was held. There was evidence that defendant had a job (he testified his income therefrom was approximately $490 per month, but he had previously admitted to his probation officer an income of around $1,000 per month); that he had a car in which there was some equity; that he had a small bank account; that for the last two years, his income tax returns showed an income of a little over $5,000; that he had paid his own bond premiums and attorney's fees in this litigation. While there was evidence of some payment for child support (the children lived with their mother, whose income was nearly *1025 as large as defendant's), and considerable indebtedness, the trial court was not obliged to allow him to prefer his creditors to his obligation to the state for payment of his fine, nor was it required to allow defendant the same standard of living to which he had become accustomed. Under these circumstances, although the trial judge could have allowed installment payments,[4] we cannot say his refusal to do so and his finding of ability to pay the fine was without evidentiary support."
The order is affirmed.
Aiso, J., and Reppy, J., concurred.
NOTES
[1]  "In neither case should the presently unpayable portion of the fine be remitted (64 Mich. L.Rev. 938, 944.) `The State is not powerless to enforce judgments against those financially unable to pay a fine; indeed, a different result would amount to inverse discrimination since it would enable an indigent to avoid both fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other conviction.' (Williams v. Illinois, supra, p. 595 [26 L.Ed.2d].) The fine became a lien against defendant (Pen. Code, § 1206). Should the defendant later become able to pay, it may be enforced by execution as a civil judgment (Pen. Code, § 1215). In an appropriate case, deferred or installment payments may be enforced (Pen. Code, § 1205).
[2]  "The sociological and penological advantages of delayed and installment payments is ably discussed in Fines, Imprisonment and the Poor: Thirty Dollars or Thirty Days, 57 Cal.L.Rev. 778, 816-819.
[3]  "We are aware of the cases holding that the `constitutional fact' of obscenity must be reexamined de novo at all levels, trial and appellate. However, we see no reason for extending this de novo examination of `constitutional fact' to all facts which may give rise to any claim of constitutional deficiency. While People v. Ferry, supra, (1965), 237 Cal. App.2d 880 [47 Cal. Rptr. 324] discusses the matter of indigency as applying to right to counsel as if it were for original determination by the appellate court, the question of which court should determine the fact of indigency was not raised. In any event, the entire discussion is dicta because the court determined that defendant had had counsel and by voluntarily releasing him, waived any further right to appointment.
[4]  "Counsel's argument was that defendant `really cannot afford to pay the entire fine at the present time.' The court was thus alerted to the possibility of deferred or installment payments. We cannot assume that the trial judge was unaware of the provisions of Penal Code section 1205 referred to above. His action can only be viewed as a refusal to adopt such procedure."