1 

### REVISED

United States Court of Appeals,

Fifth Circuit.

No. 96-50881.

Jennell L. BRANSON, Plaintiff-Appellant,

v.

GREYHOUND LINES, INC., AMALGAMATED COUNCIL RETIREMENT AND

DISABILITY PLAN; Greyhound Lines, Inc., Defendants-Appellees.

Oct. 30, 1997.

Appeals from the United Sta tes District Court for the Western

District of Texas.

Before JONES, EMILIO M. GARZA and PARKER, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Jennell L. Branson appeals from the distric t court's order

dismissing his claims against Greyhound Lines, Inc. ("Greyhound" or

"GLI") and Greyhound Lines, Inc., Amalgamated Council Ret irement

and Disability Plan (the "Plan"). The district court held as a

matter of law that Branson's breach of contra ct claim against

Greyhound was preempt ed by section 8 of the National Labor

Relations Act ("NLRA"), 29 U.S.C. § 158, and se ction 301 of the

Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. We

reverse the district court's preemption ruling and remand for

action consistent with this opinion.

The distr ict court further ruled that the Plan Trustees did

not abuse their discretion under the Employees' Retirement Income

Security Act ("ER ISA"), 29 U.S.C. § 1132(a)(1)(B), by rejecting

Branson's claim for additional seniority credit. We affirm.2 I

Branson began working for Greyhound in May 1977 and remained

an employee of the company until July 1987, when he resigned to

take another job. At the time of Branson's voluntary termination,

he was covered by the 1987 collective bargaining agreement ("1987

CBA"), negotiated between Greyhound and the Amalgamated Transit

Union (the "Union"). Branson's 10.18 years of service entitled him

to certain vested, non-forfeitable pension rights under the Plan,

which continues to exist as a legal entity separate and apart from

Greyhound and the Union. Branson later returned to work for

Greyhound as a replacement employee in April 1990, about a month

into a bitter strike.

By the time Branson returned to work for Greyhound, the most

recent collective bargaining agreement (the 1987 CBA) had expired,

and negotiations toward a new collective bargaining agreement were

proceeding. Greyhound also had recently introduced a new term in

its negotiations with the Union, essentially designed to encourage

experienced drivers to cross the picket line. Greyhound labeled

this new term "Experience Based Seniority" or "EBS", and it

promised Greyhound seniority credit for any past commercial driving

experience. Greyhound informed the Union that it would not abandon

this program under any c ircumstances and began implementing EBS

without further negotiations. Shortly thereafter, the Union filed

an unfair labor charge with the National Labor Relations Board

("NLRB" or "Board") based on the implementation of EBS.

Following Branson's return to work, he filled out a standard3

form by which he requested seniority credit not only for his prior

work with Greyhound, but also for driving experience gained from

other firms. Because Branson had worked only part-time for these

other companies, however, Greyhound granted Branson credit only for

his prior Greyhound service.

The grants of EBS "super-seniority" to replacement workers and

returning strikers became a major issue in the continuing

negotiations between Greyhound and the Union. Even when Greyhound

and the Union at last succeeded in signing a new collective

bargaining agreement ("1993 CBA") , they inserted a provision

leaving the resolution of EBS to the NLRB. The Board later found

EBS to be an unfair labor practice and ordered Greyhound to

"eliminate all effects of EBS by all appropriate means." Greyhound

subsequently began an EBS "buy-out" program, whereby the Company

offered cash payments to those employees that had earned EBS in

exchange for their signing a standard waiver form.

Branson refused to sign the waiver, insisting that he wanted

his additional seniority credit rather than the cash buy-out.

Thereafter, Branson brought suit against the Plan in federal court,

seeking declaratory relief setting forth his rights under the Plan

as provided in ERISA, 29 U.S.C. § 1132(a)(1)(B). Because Branson

had not submitted his claim to the Plan Trustees before filing

suit, the trial court granted a joint request to modify the

scheduling order to permit exhaustion. The district court held the

cause in abeyance while Branson e xhausted his administrative

remedies. The Plan Trustees subsequently held that Branson could1 Because we reverse the district court's judgment as to the

breach of contract claim against Greyhound, we do not address

Branson's claim that the district court erred in granting judgment

for Greyhound without adequate notice and without making findings

of fact.

4 not accumulate additional seniority credit under the Plan beyond

his already vested 10.18 years. In the meantime, Branson amended

his complaint to include a breach of contract claim against

Greyhound based on the alleged promise of seniority.

Branson then tried his case to the district cou rt. At the

close of Branson's presentation of evidence, the district court

dismissed Branson's breach of contract claim against Greyhound on

preemption grounds. The bench trial continued with respect to the

Plan. Following the trial, the district court ruled in favor of the

Plan, finding that the Trustees did not abuse their discretion in

interpreting the Plan to deny Branson additional seniority credit

after his termination in 1987. Branson's timely appeal followed.

II

At the close of Branson's pr esentation of evidence, the

district court granted judgment as a matter of la w in favor of

Greyhound on the grounds that both the NLRA and the LMRA preempted

Branson's breach of contract claim. Branson timely appealed the

di strict court's order on both grounds. 1 We review d e novo the

district court's rulings on preemption. Baker v. Farmers Elec.

Coop., Inc., 34 F.3d 274, 278 (5th Cir.1994).

A

In order to preserve the primary jurisdiction of the NLRB,

the NLRA requires that courts not regulate activities "when it is5

clear or may fairly be assumed that [such] activities

... are

protected by § 7 of the National Labor Relations Act, or constitute

an unfair labor practice under § 8." San Diego Bldg. Trades Council

v. Garmon, 359 U.S. 236, 244, 79 S.Ct. 773, 779, 3 L.Ed.2d 775

(1959); a ccord Belknap, Inc. v. Hale, 463 U.S. 491, 498, 103 S.Ct.

3172, 3177, 77 L.Ed.2d 798 (1983); W indfield v. Groen Div., Dover

Corp., 890 F.2d 7 64, 767 (5th Cir.1989). Here, Branson seeks to

recover for Greyhound's alleged breach of a promise to restore

Branson's previously acquired seniority.

The first prong of Garmon preemption requires us to decide

whether Brans on bases his claim on an activity "protected by

section 7" of the NLRA. Garmon, 359 U.S. at 244, 79 S.Ct. at 779.

Section 7 protects the rights of employees to organize, strike, and

collectively bargain. 29 U.S.C. § 157. Branson's claim, however,

relies on his employer's alleged breach of contract. Because the

employer's alleged breach of contract does not constitute "activity

protected by section 7," the first prong of Garmon preemption does

not apply.

The second prong of Garmon preemption requires us to decide

whether Branson's claim involves an activity actually or arguably

forbidden under section 8 of the NLRA, which prohibits employers

from engaging in unfair labor practices. G armon, 359 U.S. at 244,

79 S.Ct. at 779, 29 U.S.C. § 158. Branson argues that his claim

arises solely under an individual promise, unrelated to GLI's

implementation of EBS, and therefore involves no terms of

employment arguably re g ulated by section 8. Whether Branson's6

seniority is or is not EBS, however, does not prove dispositive.

Certainly if Branson's claims do not involve the EBS program, no

colorable argument exists for NLRB jurisdiction. S ee Belknap, 463

U.S. at 512, 103 S.Ct. at 3184 (holding that federal law does not

preempt replacement employees from suing in state court for an

employer's breach of individual promises of permanent employment).

Yet our holding of no preemption remains the same even if

Branson's claims do involve EBS. The Supreme Court said as much in

Belknap, where individual replacement employees succeeded in

maintaining their sta te law breach of contract claims against a

company which promised them permanent employment but then fired

them to make room for returning strikers. 463 U.S. at 495-497, 103

S.Ct. at 3175-3177. There the Court explicitly rejected the

employer's contention that the employees' breach of contract suit

was preempted "because it related to

... conduct that was part and

a parcel of an arguab le unfair labor practice." I d. at 510, 103

S.Ct. at 3183. Recognizing that "whether the strike was an unfair

labor practice strike and whether the offer to replacements was the

kind of offer forbidden during such a dispute were matters for the

Board," the Court nevertheless noted that in making these

determina tions, "the Board would be concerned with the impact on

strikers not with whether the employer deceived replacements." I d.

Thus, the state law causes of action were not preempted by the NLRA

because they were "of no more than peripheral concern to the Board

and the federal law

... while [the state] surely [had] a

substantial interest in protecting its citizens from7

misrepresentations that have caused them grievous harm." Id. at

511, 103 S.Ct. at 3183.

GLI seeks to distinguish Belknap on the grounds that " Belknap

did not involve a breach of contract claim based on a term of

employment concerning a mandatory subject of bargaining (seniority)

unilaterally implemented by an employer upon an impasse in

bargaining ne gotiations." As an initial matter, we note that

Greyhound has failed to demonstrate whether impasse in fact

occurred before the implementation of EBS, a finding necessary to

complete Greyhound's alleged distinction. More fundamentally,

however, Belknap indeed did involve a term of employment (whether

the position was permanent or te mporary) concerning a mandatory

subject of bargaining (reinstatement of strikers) unilaterally

implemented by an employer up on an impasse in bargaining

negotiations. S ee Belknap, 463 U.S. at 493-496, 103 S.Ct. at 3174-

3176.

GLI more correctly observes that Belknap did not involve

either an NLRB unfair labor practice finding or a specific order

i ssued by the NLRB because the parties settled their differences

before such a decision could issue. Nevertheless, B elknap

addressed that very argument by noting that even in the face of an

explicit Board order dir ecting an employer to violate contracts

made with replacement workers, "the suit for damages for breach of

contract could still be maintained without in any way prejudging

the jurisdiction of the Board or the interest of the federal law in

insuring the replacement of strikers." 463 U.S. at 512, 103 S.Ct.8

at 3184.

The Supreme Court faced a similar issue in J.I. Case v. NLRB,

321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944). There the Court

ordered an employer not to enforce individual employment contracts

that forestalled collective bargaining or deterred

self-organization. 321 U.S. at 341-42, 64 S.Ct. at 582.

Nonetheless, the Court specifically preserved the right of the

employees to seek damages for the breach of their individual

agreements. Id.

GLI also makes much of Ba ssette v. Stone, 25 F.3d 757 (9th

Cir.1994), cited by the district court for the proposition that

Brans on may have been able to bring his claim under section 8 of

the NLRA. Bassette does hold that i n addition to "limiting

employers in which terms they may implement after impasse, section

8 requires that employers honor those terms once they are

implemented ... the latter duty follow[ing] from the former." 25

F.3d at 761. In Bassette, however, the court confronted the claims

of an employee represented under the expired collective bargaining

agreement, who continued to work during negotiations over a new

c ollective bargaining agreement and whose claim rested on a

unilaterally implemented term validly implemented under section 8.

Whether or not we should accept Basset te generally is a

question we leave for another day. At the very least, however, we

decline to apply Bassette on the facts currently before us, where

a replacement employee has challenged the br each of a promise

arguably based on a unilaterally implemented t erm that the NLRB9

alr eady has determined violates section 8. Applying B assette in

this way would create an unacceptable in coherence in the duties

required by section 8. It cannot both be an unfair labor practice

to refuse to honor an implemented term and then also an unfair

labor practice to continue to honor that same term.

In add i tion, simply labeling a term of employment

"unilaterally implemented" cannot transform replacement workers

into particip ants in the collective bargaining process. S ee

Service Elec. Co., 281 N.L.R.B . 633, 641 (1986) (holding that

employer has no duty to negotiate with the union regarding the

terms and conditions of the replacements' employment); L eveld

Wholesale, Inc., 218 N.L.R.B. 1344, 1350 (holding that union's duty

of fair representation does not interfere with its ability to

insist during negotiations that an employer terminate replacements

to make room for returning strikers). These replacement workers

come to work when no collective bargaining agreement is in effect,

and they work under conditions that have not been collectively

bargained for their benefit. S ee Service Elec., 281 N.L.R.B. 633;

Leveld, 218 N.L.R.B. at 1350 ("Strike replacements can reasonably

foresee that, if the union is successful, the strikers will return

to work and the strike replacements will be out of a job."); cf.

Belknap, 463 U.S. at 513-514, 103 S.Ct. at 3184-3185 (Blackmun, J.,

concurring) ("During settlement negotiation s, the union can be

counted on to demand reinstatement for returning strikers as a

condition for any settlement.").

To assert that such replacement workers must bring their10

claims to the NLRB rather than to an appropriate court, seems to

vest this federal administrative body with power ov er disputes

purely private and independent of an unf air labor practice or

collective bargaining agreement. See 29 U.S.C. § 160 ( giving

Board jurisdiction only to prevent any person from engaging in any

unfair labor practice); s ee also National Licorice v. NLRB, 309

U.S. 350, 366, 60 S.Ct. 569, 578, 84 L.Ed. 799 ("the National Labor

Relations Act contemplates no more than the protecti on of the

public rights which it creates and defines"). Federal labor law

may create in represented employees a certain expectation and

interest that an employer will abide by terms properly and

unilaterally implemented during negotiations over a collective

bargaining agreement. S ee Bassette, 25 F.3d at 760. Nevertheless,

the expectati ons of replacement employees, who trust that an

employer will keep its promises, stem from the different and more

traditional source of state contract law. S ee Belknap, 463 U.S. at

507, 103 S.Ct. at 3181 (holding that even if replacement employees

are "represented" by the Union in some technical sense, and thus

governed by whatever settlement the Uni on negotiates to end the

strike, this cannot change the Court's holding in J.I. Case that

such currently "represented" employees may sue for damages on their

non-collective contracts); s ee also Caterpillar Inc. v. Williams,

482 U.S. 386, 396, 107 S.Ct. 2425, 2431-32, 96 L.Ed.2d 318 (1987)

(finding that a state-law plaintiff may be covered by a collective

bargaining agreement, but still may have ind e pendent contract

rights arising under state law).11

The remainder of GLI's arguments for affirming the district

court's finding of preemption relates to the possibility that a

court might order GLI to behave in a manner contrary to the NLRB's

decision. As B elknap makes clear, however, "it will not be open to

any tribunal to compel the employer to perform the acts, which,

even though he ha s bound himself by contract to do them, would

violate the Board's order or be inconsistent with any part of it."

Belknap, 463 U.S. at 512 n. 13, 103 S.Ct. at 3184 n. 13 (quoting

National Licorice Co. v. NLRB, 309 U.S. at 365, 60 S.Ct. at 577).

GLI fails to recognize the flip side of this statement, that

although no tribunal may order specific performance in the face of

a contrary NLRB order, proper tribunals nonetheless may award

damages for that very breach "without in any way prejudicing the

jurisdiction of the Board or the interest o f the federal law in

insuring the replacement of strikers." Belknap, 463 U.S. at 512,

103 S.Ct. at 3184. J .I. Case makes a similar distinction,

providing that its order for the employer to bargain collectively,

despite the exi s tence of non-expired individual contracts, is

"without prejudice to the assertion of any legal rights the

employee may have acquired under such contract or to any defenses

there-to by the employer." 321 U.S. at 342, 64 S.Ct. at 582.

Because Branson's breach of contract claim is not based on

activity arguably protected or prohibited under the NLRA, it is not

preempted under Garmon.

B

The district court also held that section 301 of the LMRA2 In earlier proceedings, Branson made an alternative argument

that "if for some reason the 19 90 agreement should prove to be

invalid, then Mr. Branson would nev ertheless be entitled to his

seniority under the plain and unmistakable language of the [1993]

collective bargaining agreement itself." Because Branson does not

reassert this argument in his briefs on appeal, it is waived. S ee

Zuccarello v. Exxon Corp., 756 F.2d 402, 407-0 8 (5th Cir.1985);

F ED . R. A PP . P. 28.

12 preempted Branson's breach of contract claim because a resolution

of the relevant allegations would depend on the analysis of one or

more collective bargaining agreements. Because Branson bases his

breach of contract claim on either the 1990 EBS program

unilatera lly implemented by GLI or a separate individual promise

made to Branson, we disagree. 2

The district court's ruling on preemption is a question of

law which we review de novo. Baker v. Farmers Elec. Coop., Inc.,

34 F.3d 274, 278 (5th Cir.1994). Section 301 preempts state causes

of action that allege the violation of a collective bargaining

agreement affecting interstate commerce. A llis-Chalmers Corp., 471

U.S. at 210, 105 S.Ct. at 1911; E itmann v. New Orleans Pub lic

Serv., Inc., 730 F.2d 359, 361-62 (5th Cir.1984). When the

resolution of a state law claim substantially depends on the

meaning of a collective bargaining agreement, courts must treat the

claim as one made under section 301 or dismiss it as preempted by

federal labor law. Allis-Chalmers, 471 U.S. at 220, 105 S.Ct. at

1 916; T homas v. LTV Corp., 39 F.3d 611, 617 (5th Cir .1994).

Nonetheless, section 301 does not necessarily preempt every state

law claim between the parties to a collective bargaining agreement,

nor does it preempt claims only tangentially related to such an13

agreement. L ingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399,

409-11, 108 S.Ct. 1877, 1883-85, 100 L.Ed.2d 410 (1988); A llisChalmers, 471 U.S. at 211-12, 105 S.Ct. at 1911-1912; Thomas, 39

F.3d at 617.

In the instant case, GLI claims that resolution of Branson's

breach of contract claim depends on the interpretation of the 1987

CBA. We disagree. Greyhound concedes that at the time Branson

retired in 1987, he had accumulated 10.18 years of seniority under

the 1987 CBA. Deciding whether or not GLI made a subsequent promise

in 1990 to credit Branson with that amount of seniority, whether

Branson relied on such a promise, and whether GLI breached such a

promise will not require the interpretation of the 1987 CBA and

thus cannot support a finding of preemption. S ee Lingle, 486 U.S.

at 413, 108 S .Ct. at 1885 (holding that section 301 preempts "an

application of state law

... only if such application requires the

interpretation of a collective bargaining agreement").

GLI also claims that a court would have to consider the 1993

CBA's seniority provision "to consider the merits of the parties'

dispute as to the nature of Branson's seniority." The seniority

provision of the 1993 CBA, however, contains no precise definition

of EBS, nor does it clarify whether EBS contemplated the extension

of se niority credit only for non-Greyhound driving experience.

Even if it did, w hat Greyhound and the Union say in 1993 (in the

CBA) about what Greyhound and Branson agreed to in 1990 cannot

alter the analysis of the 1990 agreement itself (unless one argues

that the 1993 agreement supersedes the one made in 1990, an3 The 1993 CBA anticipates an NLRB order because Greyhound and

the Union explicitly agreed to leave the resolution of EBS to the

NLRB and to abide by whatever decision the NLRB made.

4 The Supreme Court fa ced, but refused to decide, a similar

issue in Caterpillar Inc. v. Williams, where former employees

brought a breach of contract suit in state court against their

former employer based on alleged individual employment contracts.

Caterpillar Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96

L.Ed. 2d 318 (1987). The employer sought to remove the case to

federal court, arguing that its intent to raise a collective

bargaining agreement as a defense mandated preemption under section

301. I d. at 390, 107 S.Ct. at 2428. Because of the procedural

posture of the case—whether or not removal of the state claims to

federal court was appropriate—the Supreme Court expressly declined

to rule on the merits of the preemption issue. 482 U.S. at 398 n.

13, 107 S.Ct. at 2433 n. 13. Nonetheless, the Court expressly held

that section 301 does not so "completely preempt" a state law claim

for breach of contract that simply raising a collective bargaining

14 argument addressed and rejected below). Thus, if and when a court

attempts to resolve the merits of this dispute over the nature of

the seniority allegedly promised to Branson in 1990, interpreting

the 1993 CBA will not prove necessary or useful.

GLI additionally claims that a court must consider the 1993

CBA's seniority provision "to consider GLI's defense that validity

of its action is based on the NLRB's order." We disagree. While

GLI indeed may attempt to use the NLRB order as a def ense to the

state contract claim, section 301 does no t provide for the

p reemption of claims that might involve the interpretation of an

NLRB order. S ee Belknap, 463 U.S. at 512, 103 S.Ct. at 3184.

Simply pointing out that the 1993 CBA anticipates the issuing of

such an order cannot transform GLI's defense into one based on the

1993 CBA. 3 To the extent that such a defense would implicate the

1993 CBA at all, it would do so only tangentially, and thus would

not preempt the under lying state claim. 4 See Allis-Chalmers, 471agreement as a defe nse would merit removal. I d. ; s ee also

Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S.

1, 24, 103 S.Ct. 2841, 2854, 77 L.Ed.2d 420 (1983)("[I]f a federal

cause of action completely preempts a state cause of action any complaint that comes within the scope of the federal cause of

action necessarily "arises under' federal law."). The Court noted

that even when an employer-defendant alleges that a subse quent

collective bargaining agreement supersedes the individual agreement

at issue, section 301 does not necessarily mandate preemption. 482

U.S. at 394-97, 107 S.Ct. at 2430-32.

15 U.S. at 211, 105 S.Ct. at 1911 ("not every dispute concerning

employment, or tangentially inv o lving a provision of a

collective-bargaining agreement, is pre-empted by § 301").

GLI also argues that section 301 preempts Branson's breach of

contract claim because the alleged individual seniority agreement

seeks to limit or condition the 1993 CBA. Yet each of the cases

that Greyhound cites for this pro position concern individual

agreements made in the context of currently binding collective

bargaining agreements. S ee Thomas, 39 F.3d at 617-18; E itmann,

730 F.2d at 363. In T homas, we held that an individual attendance

probation agreement negotiated by the employee, his union, and the

employer that set forth minimum attendance requirements for the

year a nd modified the discharge procedures of the existing CBA,

would be treated as a CBA for section 301 preemption purposes.

Thomas, 39 F.3d at 614-17. In E itmann, we found that where an

employer's pre-employment promises conflicted with the collective

bargaining agreement in effect at the date of hire, section 301

would preempt a state law claim based on that pre-emp loyment

promise. 730 F.2d at 360-63.

Here, in contrast to the cases cited by Greyhound, at the time16

Branson allegedly struck his individual deal with Greyhou nd, the

1987 CBA had expired and the bargaining parties had yet to agree on

the 1993 CBA. In fact, Branson was a replacement employee and had

no interest in the CBAs. See Service Elec., 281 N.L .R.B. at 641

(employers have no duty to bargain with a striking union about

terms for replace ment employees). Thus, because no collective

bargaining agreement governed at the time Branson and Greyhound

allegedly made their individual contract, we cannot find that

Branson's individual claim seeks to limit or condition a collective

bargaining agreement.

Whether or not the 1993 CBA supersedes the alleged individual

agreement, even though made outside the context of a binding

collective bargaining agreement, presents a different issue. GLI

relies on J.I. Case for the proposition that collective bargaining

agreements must supersede and thus preempt indivi dual employment

contracts. Yet while J.I. Case did state broadly that the "very

purpose of providing by statute for the collective agreement is to

supersede the terms of separate agreements of employees," see 321

U.S. at 338, 64 S.Ct. at 580, the Court also explicitly sought to

preserve the rights of employees to seek damages based on these

superseded individual contracts. S ee 321 U.S. at 342, 64 S.Ct. at

582.

The Supreme Court has attempted to correct this type of

erroneous interpret ation before. In C aterpillar, the employer

"argue[d] that when respondents returned to the

collective-bargaining unit, their individual employment agreements5 GLI does half-heartedly assert that the EBS provision s are

the "functional equivalent" of a collective b argaining agreement

for preemption purposes. We disagree. The 1990 contract terms

were not a collectively bargained instrument, and were functionally

dis tinct in many ways. S ee Thomas, 39 F.3d at 618 (defining

collective bargaining as "bargaining by an organization or group of

workmen on behalf of its members with t he employer"). The terms

were impl emented unilaterally by GLI and were implemented three

days after being presented to the union. Lastly, section 301

preempts claims that depend on a CBA, not its functional

equivalent. Allis-Chalmers, 471 U.S. at 220, 105 S.Ct. at 1916.

17 wer e subsumed into, or eliminated by, the collective bargaining

agreement." 482 U.S. at 395-96, 107 S.Ct. at 2431. With

unmistakable clarity, the Court responded:

Caterpillar is mistaken

... J.I. Case does not stand for

the proposition that all individual employment contracts are

subsumed into, or eliminated by, the collective-bargaining

agreement.... Thus, individual employment contracts are not

inevitably superseded by any subsequent collective agreement

covering an individual employee, an d claims based upon them

may arise under state law.

482 U.S. at 3 96, 107 S.Ct. at 2431 (citations omitted).

"Caterpillar's basic error," continued the Court, "is its failure

t o recognize that a plaintiff covered by a collective bargain ing

agreement is permitted to assert legal rights independent of that

agreement, including state law contract rights, so long as the

contra ct relied upon is not a collective bargaining agreement."

Id. Whether Branson's claim for breach of contract arises out of a

purely individual agreement, as he alleges, or out of Greyhound's

unilateral implementation of EBS, as GLI alleges, no o ne posits

that his claim arises out of a contract that is itself a collective

bargaining agreement. 5 GLI's arguments of supersession thus cannot

withstand appropriate scrutiny.

In its final plea for a finding of section 301 preemption, GLI18

notes that should Branson prevail on his breach of contract claim,

a court could not determine B ranson's damages without looking to

the rates of pay included in the 1993 CBA, or the parameters of any

proper injunction without looking to the seniority provisions of

the 1995 modification. Assuming a rguendo that this proposition is

true, it hardly establishes that Branson's underlying claim "is

substantially dependent upon" an analysis of the terms of a

collective bargaining agreement. A llis-Chalmers, 471 U.S. at 211,

105 S.Ct. at 1916. Indeed, the Supreme Court rejected this very

argument in Lingle, 486 U.S. at 413 n. 12, 108 S.Ct. at 1885 n. 12,

holding that while collective bargaining agreements may co ntain

information such as rates of pay, possibly helpful in determining

the da mages due to a worker prevailing in a state-law suit, and

while "federal law would govern the interpretation of the agreement

to determine the proper damages, the underlying s tate-law claim,

not otherwise pre-empted, would stand."

GLI has presented no persuasive authority for the proposition

that section 301 preempts Branson's breach of contract claim.

III

Branson appeals the district court's decision in favor of the

Plan on two grounds: first, Branson argues that the district court

erred in using the abuse of discretion standard to review the

Trustees' interpretation; and second, he argues that the Trustees'

interpretation was nonetheless an abuse of discretion. We disagree

on both counts.

The d istrict court applied an abuse of discretion standard19

because it found that the Plan conferred discretionary authority on

the Trustees. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 115, 109 S.Ct. 948, 957, 103 L.Ed.2d 80 (1989); C hevron Chem.

Co. v. Oil, Chem. and Atomic Workers Local Union 4- 447, 47 F.3d

139, 142 (5th Cir.1995). Whether the district court employed the

correct standard of review for analyzing the Trustees '

interpretation of the Plan is a question of law which we review de

novo. Chevron Chem., 47 F.3d at 142.

The district court must apply an abuse of discretion standard

o nly when the Plan itself confers discretionary authority on the

Trustees to interpret the Plan. See Firestone Tire, 489 U.S. at

115, 109 S.Ct. at 956-57 ( holding that "a denial of benefits ...

is to be reviewed under a de novo standard unless the benefit plan

gives the administrator or fiduciary discre tionary authority to

determine eligibility for benefits or to construe the terms of the

plan"); C hevron Chem., 47 F.3d at 142. In C hevron Chem., we held

that the district court correctly used the abuse of discretion

standard where the pension plan conferred discretionary authority

in the following manner: "[T]he administrator is empowered to

"make such rules, regulations, [and] interpretations ... and [to]

take such other action

... as [he] may deem appropriate.' " 47

F.3d at 143 (emphasis and alterations in original) (quoting pension

plan).

In the case at hand, the Plan uses similar language to confer

discretionary authority upon the Trustees. Section 6.2 of the Plan

states that the Trustees have the power "[t]o decide any question6 Bra nson claims that the Plan operates under a conflict of

interest because the Plan is managed by a six-member Board of

Trustees, half chosen by the Union and half by Greyhound, none of

whom have an interest in helping former strike-breakers.

20 arising in the administration, interpretation, and application of

this Plan." Consequently, the district c ourt correctly used the

abuse of discretion s tandard to review the decision of the

Trustees.

Branson argues, however, that the Trustees here are subject to

a "suspicion of partiality" 6 and that the district court should

have used a sli ding scale—something less than the abuse of

discretion standard—to review the Trustees' decision. See Lowry

v. Bankers Life and Casualty Retirement Plan, 871 F.2d 522, 525 &

n. 6 (5th Cir.1989) (suggesting the possibility of using a sliding

scale to review trustees' decision). We disagree.

The district court found, a s a matter of fact, that no

animosity toward replacement workers influenced either Greyhound or

the Union. We review the district court's factual findings for

clear error. S ee Bellaire Gen. Hosp. v. Blue Cross Blue Shield, 97

F.3d 822, 829 (5th Cir.1996). Branson does not dispute that in

1990 the Union helped him correct Greyhound records to reflect his

actual starting date and that later, the Union pursued Branson's

grievance regarding a company decision to place him on sick leave

for an extended period of time. Under these circumstances, we

cannot say that the district court committed clear error in finding

no suspicion of partiality. Thus, the district court was correct

i n refusing to use a suspicion of partiality as a factor in7 Branson also appears to argue that the Trustees should have

looked to the 1990 Agreement implemented unilaterally by Greyhound

to determine whether he lost his seniority. This argument ignores

the fact that under section 11.1 of the Plan, any action taken by

Greyhound without the concurrence of the Union can have no effect

on the Plan.

21 determining whether the Trustees abused their discretion.

Branson additionally claims that the district court erred in

finding no abuse of discretion because: (1) the Trustees looked to

the 1987 CBA instead of the 1993 CBA to determine whether Branson

lost his seniority; 7 and (2) even the 1987 CBA did not explicitly

state that Branson would lose his s eniority when he quit. We

review de novo the district court's ultimate legal conclusion that

there was no abuse of discretion by the Trustees. S ee Sweatman v.

Commercial Union Ins. Co., 39 F.3d 594, 601 (5th Cir.1994).

A two-step inquiry governs whether the Trustees abused their

discretion in refusing to give Branson the additional seniority he

claimed. Pickrom v. Belger Cartage Serv., Inc., 57 F.3d 468, 471

(5th Cir.1995). First, we determine whether the Trustees gave the

Plan a "legally correct" interpretation. I d. Second, if we find

that the Trustees' interpretation is not legally correct, we must

determine whether the Trustees' decision constituted an abuse of

discretion. I d. In deciding the first step—whether the Plan's

interpretation was legally correct—we consider three factors: (1)

w hether the Trustees have given the pension plan a unif orm

construction; (2) whether the Trustees' interpretation is

c onsistent with a fair reading of the Plan; and (3) whether

different interpretations of the Plan will result in unanticipated22

costs. Id.; Chevron Chem., 47 F.3d at 145.

In the instant case, the first factor proves insignificant

because the Trustees have not previously interpreted the relevant

provisions. Although not determinative, the third factor of

unanticipated costs supports the Trustees. Indeed, the Trustees'

interpretation se ems designed to thwart the very unanticipated

costs that Branson's interpretation inevitably would produce.

Particularly with employees like Branson, who have accumulated long

terms of seniority and then left the company, attempting to arrange

actuarially for the possibility that these employees might reenter

the Plan at any moment, demanding immediate recognition of

substantial terms of seniority, certainly results in unanticipated

costs.

The second factor, relating to whether or not the Trustees'

engaged in a "fair reading of the Plan," forms the basis of

Branson's argument th at the Trustees' abused their discretion in

interpreting the Plan to deny him additional seniority credit. We

find, however, that the Trustees' interpretation is a fair reading

of the Plan.

Section 2.1 of the Plan provides:

N o twithstanding anything to the contrary in this Section

2.1(1), however, an Active Participant who subsequently

terminates employment with an Employer and thereupon loses his

seniority under the Collective Bargaining Agreement

... shall

thereafter cease to be an Active Participant regardless of

whether such Part icipant is subsequently re-employed by an

Employer or a Related Employer.

The Plan provides in 2.3(2) that only Active Participants may

accrue pension credit or benefits under the Plan. In 1987, Branson23

was an "Active Participant who subsequently terminate[d] employment

with an Employer." Thus, the question for the Trustees became

whether Branson "thereupon los[t] h is seniority under the

Collective Bargaining Agreement." The Trustees found that Branson

did lose his seniority under the 1987 CBA and thus "cease[d] to be

an Active Participant" in the Plan, meaning that he could no longer

accrue additional pension credit, re gardless of his later

re-employment.

Branson argues that using the 1987 CBA does not comport with

a fair reading of the Plan because the definition of "Collective

Bargaining Agreement" includes not only "[t]he current collective

bargaining agreement between the Company and the Union," but also

any "extensions thereof, or any successor agreements between the

parties. " This definition, however, cannot alter the import of the

phrase " thereupon loses his seniority" in section 2.1 (emphasis

added). Black's Law Dictionary defines "thereupon" as: "without

delay or lapse of time." B L ACK ' S L AW D ICTIONARY 1478 (6t h ed.1990).

Webster's New Collegiate Dictionary similarly defines "thereupon"

as "immediately after that." W E BSTER ' S N EW C OLLEGIAT E D ICTIONARY 1201

(1979). Thus, the Trustees did engage in a fair reading of the

Plan by l ooking to the collective bargaining agreement in effect

"immediately after" Branson terminated his employment in 1987.

Branson also argues that the Trustees failed to make a fair

reading of the Plan by interpreting the 1987 CBA to impliedly

revoke seniority for employees who voluntarily quit. We disagree.

Branson corre ctly notes that the 1987 CBA neither explicitly24

protects nor explicitly revokes the seniority of employees who

voluntarily quit. The 1987 CBA does, however, explicitly retain

seniority for several categories of employees, including:

employees entering the armed forces, employees receiving leaves of

absence f or less than 30 days, employees furloughed as part of a

reduction in force (so long as they return to work when it becomes

available), emplo yees in the service of the union, and employees

accepting supervisory positions (so long as they resume a position

within the bargaining unit within 24 months). The Latin maxim

expressio unius est exclusio alterius proves instructive. The

Trustees found that t he inclusion of specific circumstances in

which an employee retained seniority meant that an employee did not

ret a in seniority in other circumstances. Consequently, those

employees who voluntarily quit "lost" their seniority, and the Plan

could not allow a ny later accumulation of additional seniority.

Branson has failed to show that this is not a fair reading of the

Plan.

Having found that the Trustees' interpretation of the Plan was

legally correct , we need not proceed to the second step of our

analysis. P ickrom v. Belger Cartage Serv., Inc., 57 F.3d 468, 472-

73 (5th Cir.1995). The Trustees did not abuse their discretion in

interpreting the Plan.

IV

In summary, we hold that Branson's breach of contract claim8 We affirm the district court's denial of Branson's motion for

summary judgment on his breach of contract claim against Greyhound.

The record discloses several genuine issues of material fact,

including the type, if any, of seniority credit Greyhound offered

Branson, what that seniority credit would have done for Bra nson,

whether or not Greyhound 's subsequent behavior contradicted any

accepted offer and whether Greyhound has any viable defenses.

9 Branson's only remaining claim is a breach of contract based

on state law. In light of this opinion, the district court may

revisit its decision t o exercise supplemental jurisdiction over

Branson's state law claim. See Parker & Parsley Petroleum Co. v.

Dresser Indus., 972 F.2d 580, 585 (5th Cir.1992) ("Our general rule

is to dismiss state claims when the federal claims to which they

are pendent are dismissed.").

25 aga inst Greyhound is not preempted by the NLRA or the LMRA. 8 We

reverse and remand to the district court for proceedings consistent with this opinion. 9 We

affirm the district court's judgment in favor of the Plan.