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United States Court of Appeals
Fifth Circuit
F I L E D
August 21, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
Clerk
FOR THE FIFTH CIRCUIT
No. 02-31168
RAY WORTHY; Et Al,
Plaintiffs,
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, Dock Loaders and
Unloaders of Freight Cars and Barges, Local 854, AFL-CIO
Plaintiff - Appellant
versus
NEW ORLEANS STEAMSHIP ASSOCIATION / INTERNATIONAL
LONGSHOREMEN'S ASSOCIATION, AFL-CIO PENSION PLAN,
including welfare, vacation, holiday funds and royalty pay;
NEW ORLEANS EMPLOYERS INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION, AFL-CIO, PENSION, WELFARE, VACATION AND HOLIDAY
FUNDS, incorrectly named as "New Orleans Steamship Association
International Longshoremen's Association;" AMERICAN FEDERATION
OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, Pension Plan
including Welfare, Vacation, Holiday Funds and Royalty Pay;
RICHARD TEISSIER, Trustee; C G MILLER, Trustee; WIN NIEMAN,
Trustee; SID HOTARD, Trustee; MAX SANDERS, Trustee; JAMES CAMPBELL,
Trustee; JAMES MCCLELAND, Trustee; LLOYD IRVIN; DWAYNE BOUDREAUX,
Trustee; MARK ELLIS, Trustee; THOMAS R DANIEL, Administrator
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana

Before KING, Chief Judge, HIGGINBOTHAM and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Ray Worthy ("Worthy"), president of the Dock Loaders and Unloaders of Freight Cars and
Barges, International Longshoremen's Association, AFL-CIO ("Local 854") filed suit against the
New Orleans Steamship Association/ International Longshoremen's Association AFL-CIO, along
with its trustees (collectively, "New Orleans Steamship" or "Association") which oversees the
pension, welfare, vacation, and holiday plan for Local 854 employees (the "Trust"); the Trustees of
the Trust; and, the administrator of the Trust, Thomas Daniel ("Daniel"). Local 854 alleged violations
of the Employment Retirement Income Security Act ("ERISA"), the Taft-Hartley Act, and the Labor
Management Relations Act ("LMRA"). New Orleans Steamship filed a motion for summary judgment
that the district court granted. Local 854 now appeals. For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff-Appellant, Local 854 is a labor organization located in New Orleans, Louisiana.
Defendant-Appellee, New Orleans Steamship is an unincorporated association. New Orleans
Steamship, guided by administrator Daniel, oversees the Trust between the Mid-Gulf Association of
Stevedores, Inc.1 and Local 854. International Longshoremen's Association Locals 3000, 1497, 2036
and 3033 (collectively, "Unions") are also parties to the Trust.
The Trust establishes pension, welfare, vacation, and holiday plans and is governed by the
ERISA, 29 U.S.C. � 1001, et al. (2000), the LMRA, 29 U.S.C. � 186(e) (2000), the law of contracts,
1Mid-Gulf Association of Stevedores, Inc. was formerly known as the New Orleans Steamship
Association.
2

and the trust code of the State of Louisiana. The Declaration of Trust which was written in 1957 and
created the Trust, provides that the employers, represented by Mid-Gulf Association of Stevedores
and the Unions would each appoint an equal number of Trustees to the Board of Trustees ("the
Board"). Initially, the Trust stipulated that the parties would each name six Trustees and four
alternates who could substitute for one or more of the named Trustees. Eventually, the Trust was
amended to reduce the number of Trustees appointed to the Board. In February 2002, the Trust was
again amended to allow the employers and the Union to each appoint five Trustees and to eliminate
all alternative Trustee positions.
Local 854 is one of the original signatories to the Trust and, until 1989, was represented on
the Board. In 1989, however, the president of Local 854 retired from his position on the Board and
a representative of Local 3033 was placed on the Board in his place. In May 1997, Worthy, who was
president of Local 854 at the time, was appointed as one of the two alternative Trustees. In 1999, the
Union Co-Chairman of the Board wrote Daniel advising him that because Worthy did not attend any
meetings during his tenure, he was being replaced as an alternate Trustee.
In December 2001, Local 854 and Worthy, filed suit in federal district court against the Trust
that oversees the pension, welfare, vacation, holiday, and royalty pay for Local 854's employees, also
known as the New Orleans Steamship; the Trustees of the Trust; and Daniel. In its first amended
Complaint, Local 854 alleged that New Orleans Steamship: (1) failed "to abide by one or more
constitutions and bylaws," the Restatement of Agreement and Declaration of Trust (the "Trust
document"), including amendments, and the Summary Plan Description; (2) unlawfully denied
pension, welfare, vacation, holiday and other benefits, which caused the trustees to breach their
fiduciary duties to the beneficiaries of the trust; (3) deprived Worthy of his rights as a member of a
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labor organization; and (4) excluded Local 854 from the Board of Trustees, thus causing unequal
representation of employers and union in the administration and operation of the Trust, as well as
implementing policies without a Local 854 representative's required signature. Local 854 also
complained that Daniel failed to obtain Worthy's signature, in his capacity as representative of Local
854, on Amendments 12 through 15 of the Trust, thus rendering each amendment null and void and
causing the Trustees to breach their fiduciary duties; and the 1991 through 2001 Memorandum
Agreements and Royalty Authorizations to the 1972 Royalty Agreement, despite that Local 854 is
a principal to that agreement.2
In October 2002, the district court held the final pre-trial conference on this matter. As part
of the trial preparation order issued that same day, the court granted New Orleans Steamship's
motion for summary judgment with respect to all claims asserted by Local 854 and Worthy (as its
representative), and denied Local 854's motion for preliminary injunctive relief and declaratory
judgment with respect to these claims. In addition, the court took under advisement New Orleans
Steamship's request for summary judgment with respect to Worthy's individual claim for benefits.
In November 2002, the district court filed written reasons in support of its October order.
With respect to all claims asserted by Local 854 and Worthy, the district court granted New Orleans
Steamship's summary judgment motion and denied Local 854's motion for declaratory judgment and
2 In April 2002, Local 854 moved for injunctive and declaratory relief which reflected the claims
raised in its first Amended Complaint, requesting the district court to "specify the relationship
between Local 854 and [New Orleans Steamship] in addition to [New Orleans Steamship's] including
Local 854 on the trustee board; change the procedure for choosing trustees; cease amend[ing] the
trust without the input and required signatures of all unions; restore Mr. Worthy's benefits for the
time period of 1998 through 2001; and cease operating the royalty fund without the input and
required signatures of all the principals of the fund."
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preliminary injunctive relief. On appeal, Local 854 challenges the district court's order regarding its
claims that New Orleans Steamship breached its fiduciary duties under the Trust.
DISCUSSION
I.
We review the district court's order granting summary judgment de novo employing the same
rules that were used in the district court. See Hansen v. Cont'l Ins. Co., 940 F.2d 971, 975 (5th Cir.
1991). Summary judgment is only appropriate when there are no genuine issues of material fact and,
as a matter of law, the moving party is entitled to summary judgment. See Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986) ("Rule 56(c) mandates the entry of summary judgment ... against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial.").
II.
The district court found that Local 854 failed to raise a genuine issue of material fact as to
New Orleans Steamship's alleged breach of fiduciary duties under ERISA. The district court
concluded that New Orleans Steamship did not violate ERISA because the word "union" was
interpreted by New Orleans Steamship to mean a majority of the signatory unions, and thus there was
no requirement for Local 854 to be involved in decisions. Also, having evaluated trust administrator
Daniel's interpretation of the language of the Trust document, the district court found his
interpretation to be "legally correct." Local 854 challenges the district court's grant of summary
judgment to New Orleans Steamship regarding its fiduciary duties. Local 854's basic contentions are
that New Orleans Steamship breached its fiduciary duties under ERISA by failing: (1) to provide
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Local 854 with a position on the Board; (2) to get signatures of approval by Local 854 for trust
amendments twelve through fifteen; and (3) to get signatures of approval by Local 854 as a principle
to the Royalty Escrow Account. We address each argument in turn.
First, we conclude that nothing in the Trust document guarantees Local 854 a place on the
Board. The plain language of the Trust document does not support the extension of a contractual
right to Local 854 that would entitle it to continuous representation on the Board. New Orleans
Steamship contends that the original authors of the Declaration of Trust did not intend for each
original signatory union to have a position on the Board and that no portion of the Trust document
or practice of the Board indicates that each original union signatory was entitled to a position on the
Board at all times. We agree. There is no language in the Trust document which indicates that Local
854 is required to maintain a position on the Board in perpetuity because it was an original signatory
to the Trust.
Moreover, the Trust document does not provide express or implied language that all of the
member Unions must participate on the Trustee Board. For example, in Local 169, Int'l Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of Am. v. Teamsters Health & Welfare Fund
of Phila. & Vicinity, the trust document at issue specifically defined "union" to include only the
original signatory local unions, meaning that only those unions would participate in the decisions
concerning the appointment of trustees. 327 F. Supp. 260, 262 (E.D. Pa. 1971) ("In the Original
Declaration of Trust, where parties to the agreement are listed, it is provided that the seven local
unions entering into the agreement shall be referred to as `UNION'."). In this case, however, such
an express clause in the Trust document defining the scope of "union" does not exist. Instead, the
language of the Trust document supports New Orleans Steamship's interpretation. Article 2 provides
6

that the Union and the Association, i.e., the settlors are to appoint an equal number of Trustees each
year. At the time the Trust document was executed, the Union and the Association each appointed
six trustees. Local 854 was one of eleven original signatories to the Trust. Thus, the original authors
of the Trust document cannot have contemplated that each signatory member is guaranteed a position
on the Board.
Second, we conclude that because a proposed Trust amendment does not require unanimity
amongst all unions signing the Trust, Local 854's assertion that New Orleans Steamship breached its
fiduciary duties by failing to obtain approval from Local 854 for amendments twelve through fifteen
raises no genuine issues of material fact. Local 854 interprets the use of the word "union" in Article
19 of the Trust document to mean that all of the unions are required to execute an amendment to the
Declaration.3 Trust administrator Daniel interpreted "the union" to mean a majority of the unions. The
legality of the trust administrator's interpretation of the Trust significantly affects this issue. In the
ERISA context, when trust administrators are provided with discretion "to construe the terms of the
plan," these interpretations are reviewed under an abuse of discretion standard. See Wilbur v. Arco
Chem. Co. 974 F.2d 631, 637 (5th Cir. 1992) (quoting Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101, 115 (1989)). In this case, the language in the Trust document is explicit that the
administrator, who is supervised by the Board, is vested with discretionary authority to construe the
plan.4 Id. ("Discretionary authority cannot be implied; an administrator has no discretion to determine
3 Article 19 provides:
This Agreement and Declaration of Trust may be amended by joint actions of the Trustees,
the Union, and the New Orleans Steamship Association representing the Employers.
4Article 5 provides in relevant part:
The Trustees shall have the power to construe the provisions of the Pension, Welfare,
Vacation and Holiday Plans which shall be formulated pursuant hereto, and the terms used
7

eligibility or interpret the plan unless the plan language expressly confers such authority on the
administrator.").
We employ a two-part test when applying the abuse of discretion standard. First, we must
identify the legally correct interpretation of the plan. See Wilbur, 974 F.2d at 637. If we find that the
plan administrator failed to provide a "legally correct" interpretation, then second, we determine
whether the administrator's decision constitutes an abuse of discretion. Id. In answering the first
question, we consider t hree factors: "(1) whether the administrator has given the plan a uniform
construction, (2) whether the interpretation is consistent with a fair reading of the plan, and (3) any
unanticipated costs resulting from different interpretations of the plan." Id. at 637-38. Because we
determine that the administrator's interpretation is legally correct, we do not reach the second inquiry.
After reviewing the record and the parties' arguments, we are satisfied that Daniel's
interpretation of the Trust is legally correct. Local 854 does not present evidence nor cite to specific
Trust provisions indicating that Daniels failed to give the Trust a uniform construction or that his
interpretation is inconsistent with a fair reading of the Trust. Further vitiating Local 854's assertion
is that the provisions of the Trust indicate that agreement of the "union" should be interpreted as an
agreement of the majority of the trustees of the local unions. For example, in Article 3, the Trust
document provides that election of the Co-Chairman from the Union and the Co-Chairman from the
Association are by "majority vote." To transact business, Article 9 requires a "quorum" to be present
herein and in said Pension, Welfare, Vacation and Holiday Plans, and any construction
adopted by the Trustees shall be binding upon all parties hereto. The Trustees shall also have
authority to review, from time to time, the benefits provided by said Pension, Welfare,
Vacation and Holiday Plans, and to increase or decrease such benefits to such extent as in
their prudent judgment and discretion they shall deem advisable, giving due regard to the
financial resources of the Trust.
8

at a meeting of the Board and that the exercise of any right or power granted to the Trustees is to
be by majority vote of those Trustees present.
As the district court adeptly analyzed, there would be great unanticipated costs to interpreting
the Trust language as Local 854 urges, i.e., requiring unanimous approval of the signatories prior to
amending the Trust. In sum, the process of obtaining unanimous approval would be tedious and
would create an obstacle to effective administration of the plan. Because Local 854 does not raise
a genuine issue of fact disputing the legal correctness of Daniel's interpretation, we conclude that
summary judgment for New Orleans Steamship is proper.
Third, we conclude that Local 854's claim that the Trust breached its fiduciary duty by not
obtaining a signature of approval by Local 854 as a Principal to the account is not justiciable. The
justiciability of this claim depends on whether t he judiciary represents the branch of federal
government best-suited to address Local 854's particular grievance. Because this claim principally
arises out of an interpretation of a collective bargaining agreement, Local 854's proper remedy was
not to file an ERISA claim but to file an unfair labor practice charge before the National Labor
Relations Board - an agency within the executive branch of the federal government. See 29 U.S.C.
� 160 (empowering the NLRB to adjudicate claims of unfair labor practices); Boire v. Int'l
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 479 F.2d 778, 783 n.4
("[C]harges of unfair labor practices are within the jurisdiction of the NLRB ... and not within the
jurisdiction of this Court."). Local 854's claim is not in a form amenable to resolution through the
judicial process, but rather would be best decided by the executive branch of government.
III.
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Local 854's assertion that the district court erred when it granted summary judgment to New
Orleans Steamship on Local 854's claim against Daniel for false swearing before a notary public is
waived because it was raised for the first time in its reply brief. See Blumberg v. HCA Mgmt. Co.,
848 F.2d 642, 646 (5th Cir. 1988) (informing that this Court has "repeatedly held that we will not
consider alleged errors raised" for the first time in a reply brief). Moreover, Local 854's assertion that
New Orleans Steamship did not operate the Trust and plans for the benefit of the beneficiaries,
permitting certain sole proprietors to contribute to the plan on behalf of themselves as employees and
receive plan assets, was not raised before the district court; and therefore, was never ruled upon in
the Final Judgment. As a general rule, this court ignores claims that are not raised formally at the trial
level. E.g., McLean v. Int'l Harvester Co., 902 F.2d 372, 374 (5th Cir. 1992). Furthermore, because
Local 854's sole proprietor argument does not involve a purely legal question or failure to consider
it would not result in a miscarriage of justice, we do not consider it on appeal. See Atlantic Mut. Ins.
Co. v. Truck Ins. Exchange, 797 F.2d 1288, 1293 (5th Cir. 1986) ("An issue raised for the first time
on appeal generally is not considered unless it involves a purely legal question or failure to consider
it would result in a miscarriage of justice.").
CONCLUSION
Thus, we affirm the district court's grant of summary judgment to New Orleans Steamship
and denial of Local 854's motion for injunctive and declaratory relief regarding Local 854's claims that
New Orleans Steamship breached its fiduciary duties under ERISA.
AFFIRM.
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