INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO, and TEAMSTERS LOCAL UNION NO . 2727 v. United Parcel Service Co .

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0148p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
I NTERNATIONAL BROTHERHOOD OF TEAMSTERS,
AFL-CIO, and TEAMSTERS LOCAL UNION NO . 2727,
Plaintiffs-Appellants,
v.
UNITED PARCEL SERVICE CO .,
Defendant-Appellee.
X---->
,----
N
No. 05-5478
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 03-00675—John G. Heyburn II, Chief District Judge.
Argued: January 24, 2006
Decided and Filed: April 26, 2006
Before: SILER, SUTTON, and COOK, Circuit Judges.
_________________
COUNSEL
ARGUED: Roland Wilder, Jr., BAPTISTE & WILDER, Washington, D.C., for Appellants. Tony
C. Coleman, FROST BROWN TODD LLC, Louisville, Kentucky, for Appellee. ON BRIEF:
Roland Wilder, Jr., Katherine A. McDonough, BAPTISTE & WILDER, Washington, D.C., for
Appellants. Tony C. Coleman, David L. Hoskins, FROST BROWN TODD LLC, Louisville,
Kentucky, for Appellee.
_________________
OPINION
_________________
SUTTON, Circuit Judge. Section 3 of the Railway Labor Act (RLA), Pub. L. No. 442, 48
Stat. 1185 (1934) (codified as amended at 45 U.S.C. § 151 et seq.), grants adjustment boards
exclusive jurisdiction to resolve disputes over the “interpretation or application of [collective
bargaining] agreements” affecting the railroad and airline industries. At issue in this case is a claim
by the International Brotherhood of Teamsters (the union) that it has a right to designate a
representative on a safety committee established by its collective bargaining agreement with United
Parcel Service (UPS). The district court dismissed the suit, concluding that it fell within the
exclusive jurisdiction of the adjustment board. The union responds that the dispute lies outside of
the board’s exclusive jurisdiction because it involves a dispute between labor and management about
the “[d]esignation of representatives.” § 2, Third. Concluding that the union has construed the
1

-- 1 of 9 --

No. 05-5478 Int’l Bhd. of Teamsters, et al. v. UPS Co. Page 2
board’s exclusive jurisdiction in § 3 too narrowly and the term “representatives” in § 2, Third too
broadly, we affirm.
I.
The union represents maintenance technicians and other workers employed by UPS at 88
“gateways” across the country (hubs for the company’s airborne shipping business). UPS and the
union entered into a collective bargaining agreement that established, among other things, a safety
committee at each of the larger gateways. Representatives of both parties sit on these safety
committees, where they work together to address the safety concerns of employees at the gateways.
At gateways with fewer than 20 employees, the Local 2727 Safety Committee chairman works with
UPS’s safety manager to resolve employee safety concerns.
In April 2003, Local 2727 hired John J. Tulipana, Jr. to be (1) its Safety Committee Chair
and (2) the Union Chair of the Louisville Gateway Safety Committee. UPS, however, refused to
acknowledge Tulipana as chair of the Louisville Committee, arguing that the collective bargaining
agreement mandated that a UPS employee hold the position. On November 3, 2003, the union filed
this lawsuit in the United States District Court for the Western District of Kentucky, seeking a
declaratory judgment and injunctive relief under § 3 of the Railway Labor Act. Claiming that UPS
had refused “to ‘treat’ with Mr. Tulipana on health and safety issues,” the union complained that
“UPS has interfered with its employees’ choice of representative and has violated § 2, Third and
Fourth of the Act.” JA 9. UPS filed a motion to dismiss for lack of jurisdiction, which the district
court granted. Even if UPS had failed to “treat with” Tulipana in this safety committee position, the
district court held that “the dispute . . . qualified as ‘minor’ under the Railway Labor Act [and] was
committed to the exclusive jurisdiction of the system adjustment board.” D. Ct. Op. at 24, 26.
II.
The union appealed. We give fresh review to a district court’s decision to dismiss a suit for
lack of statutory jurisdiction. Airline Prof’ls Ass’n of the Int’l Bhd. of Teamsters v. ABX Air, Inc.,
274 F.3d 1023,1027 (6th Cir. 2001).
A.
Enacted in 1926, the Railway Labor Act was designed to “avoid any interruption to
commerce or to the operation of any [railroad] engaged therein” caused by labor-management
disputes. 45 U.S.C. § 151a(1); see also H. R. Rep. No. 328, at 1 (1926) (noting that the Act would
ensure “continuity and efficiency of interstate transportation service, and [ ] protect the public from
the injuries and losses consequent upon any impairment or interruption of interstate commerce
through failures of managers and employees to settle peaceably their controversies”). In 1936,
Congress extended the Act to “every common carrier by air engaged in interstate or foreign
commerce.” Act of April 10, 1936, Pub. L. No. 487, 49 Stat. 1189 (codified at 45 U.S.C. § 181).
In attempting to prevent labor disputes from crippling freight and passenger delivery in the
railway and airline industries, the Act divides labor disputes into four categories: representation
disputes, major disputes, minor disputes and collateral disputes governed by independent state or
federal laws. Representation disputes are governed by § 2, Ninth of the Act and address conflicts
that arise before certification of a union and that concern who will represent employees in future
labor negotiations. See Virginian Ry. Co. v. Ry. Employees, 300 U.S. 515, 543 (1937) (“[The]
employees’ free[dom] to organize and to make choice of their representatives without the ‘coercive
interference’ and ‘pressure’ of a company union . . . [and the statutory protection of] the freedom
of choice of representatives . . . . was continued and made more explicit by [§ 2, Third and
Fourth].”); see also W. Airlines, Inc. v. Int’l Bhd. of Teamsters, 480 U.S. 1301, 1302–03 (1987)
(O’Connor, Circuit Justice) (“Representation disputes involve defining the bargaining unit and

-- 2 of 9 --

No. 05-5478 Int’l Bhd. of Teamsters, et al. v. UPS Co. Page 3
determining the employee representative for collective bargaining. Under § 2, Ninth, of the Act, the
National Mediation Board has exclusive jurisdiction over representation disputes.”) (internal
quotation marks omitted).
“Major disputes” occur after certification “over the formation of collective agreements or
efforts to secure them” and “arise where there is no such agreement or where it is sought to change
the terms of one, and therefore the issue is not whether an existing agreement controls the
controversy. They look to the acquisition of rights for the future, not to assertion of rights claimed
to have vested in the past.” Elgin, Joliet & E. Ry. Co. v. Burley, 325 U.S. 711, 723 (1945); see also
Pittsburgh & Lake Erie R.R. Co. v. Ry. Labor Executives’ Ass’n, 491 U.S. 490, 496 n.4 (1989)
(“Disputes about proposals to change rates of pay, rules, or working conditions are known as major
disputes.”); Burlington N. R.R. Co. v. Bhd. of Maint. of Way Employees, 481 U.S. 429, 432 (1987)
(“A dispute over the formation of collective agreements or efforts to secure them is a ‘major dispute’
in the parlance of railway labor law and is governed by the Railway Labor Act.”) (citation and
quotation marks omitted); Atchison, Topeka & Santa Fe R.R. Co. v. Buell, 480 U.S. 557, 562–63
(1987) (labeling “‘major disputes’ [as] those arising out of the formation or change of collective
bargaining agreements covering rates of pay, rules, or working conditions”) (internal quotation
marks and brackets omitted).
A minor dispute “contemplates the existence of a collective agreement . . . . The dispute
relates either to the meaning or proper application of a particular provision with reference to a
specific situation or to an omitted case. . . . In either case the claim is to rights accrued, not merely
to have new ones created for the future.” Burley, 325 U.S. at 723; see also Hawaiian Airlines v.
Norris, 512 U.S. 246, 252–54 (1994) (“[M]inor disputes[] grow out of grievances or out of the
interpretation or application of agreements covering rates of pay, rules, or working conditions.
Minor disputes involve controversies over the meaning of an existing collective bargaining
agreement in a particular fact situation[,] . . . . develop from the interpretation and/or application of
the contracts between the labor unions and the carriers . . . . [and] pertain[] only to disputes invoking
contract-based rights.”) (internal quotation marks and citation omitted); Pittsburgh & Lake Erie R.R.
Co., 491 U.S. at 496 (“Minor disputes are those involving the interpretation or application of
existing contracts.”); Buell, 480 U.S. at 563 (“[A] minor dispute . . . grow[s] out of grievances or out
of the interpretation or application of agreements concerning rates of pay, rules, or working
conditions.”) (internal quotation marks omitted); cf. Conrail v. Ry. Labor Executives’ Ass’n, 491
U.S. 299, 302 (1989) (“This Court . . . . adopted the major/minor terminology, drawn from the
vocabulary of rail management and rail labor, as a shorthand method of describing two classes of
controversy Congress had distinguished in the RLA: major disputes seek to create contractual
rights, minor disputes to enforce them.”); id. at 307 (“Where an employer asserts a contractual right
to take the contested action, the ensuing dispute is minor if the action is arguably justified by the
terms of the parties’ collective-bargaining agreement. Where, in contrast, the employer’s claims are
frivolous or obviously insubstantial, the dispute is major.”).
Finally, disputes over rights granted by other provisions of federal and state law, which are
not otherwise covered by any of the previous dispute categories, are largely unaffected by the Act.
Hawaiian Airlines, 512 U.S. at 260 (“[A] state-law cause of action is not pre-empted by the RLA
if it involves rights and obligations that exist independent of the CBA.”); id. at 265–66 (“This
‘arguably justified’ standard, however, was employed only for policing the line between major and
minor disputes. Recognizing that accepting a party’s characterization of a dispute as ‘minor’ ran
the risk of undercutting the RLA’s prohibition against unilateral imposition of new contractual
terms, the Court held that a dispute would be deemed minor only if there was a sincere, nonfrivolous
argument that it turned on the application of the existing agreement, that is, if it was ‘arguably
justified’ by that agreement. Obviously, this test said nothing about the threshold question whether
the dispute was subject to the RLA in the first place. . . . Accordingly, we agree with the Supreme
Court of Hawaii that respondent’s claims for discharge in violation of public policy and in violation

-- 3 of 9 --

No. 05-5478 Int’l Bhd. of Teamsters, et al. v. UPS Co. Page 4
of the Hawaii Whistleblower Protection Act are not pre-empted by the RLA.”); Buell, 480 U.S. at
565, 567 (“It is inconceivable that Congress intended that a worker who suffered a disabling injury
would be denied recovery under the [Federal Employee Liability Act (FELA)] simply because he
might also be able to process a narrow labor grievance under the RLA to a successful conclusion.
. . . As far as a worker’s right to damages under the FELA is concerned, Congress’ enactment of
the RLA has had no effect.”).
How a dispute is characterized affects the path for resolving it. Representation disputes are
committed to the jurisdiction of the National Mediation Board by § 2, Ninth of the Act, which gives
the Board authority to investigate and resolve such disputes, ensuring that the selection of collective-
bargaining representatives occurs without “interference, influence, or coercion.” 45 U.S.C.
§ 152 (9). The decision of the National Mediation Board to certify a particular representative under
§ 2, Ninth of the Act is final and not reviewable in federal court. See Switchmen’s Union of N. Am.
v. Nat’l Mediation Bd., 320 U.S. 297, 303 (1943) (“Where Congress took such great pains to protect
the Mediation Board in its handling of an explosive problem, we cannot help but believe that if
Congress had desired to implicate the federal judiciary and to place on the federal courts the burden
of having the final say on any aspect of the problem, it would have made its desire plain.”);
W. Airlines, Inc., 480 U.S. at 1302–03 (O’Connor, Circuit Justice) (“‘Representation’ disputes
involve defining the bargaining unit and determining the employee representative for collective
bargaining. Under § 2, Ninth, of the Act, the National Mediation Board has exclusive jurisdiction
over representation disputes.”).
The Act provides “two distinct routes for settlement” of major and minor disputes. Burley,
325 U.S. at 724. After an initial stage of mandatory negotiation, major disputes are subject to
mediation by the National Mediation Board (created by the Act), voluntary arbitration and
eventually the possibility of presidential intervention. Id. at 725. If each procedure is tried and fails,
the parties may resort to other legal tactics, such as strikes, lockouts or other forms of economic self-
help. Id.
To address “minor disputes,” Congress amended the Act in 1934 to give the National
Railroad Adjustment Board power to settle such disputes definitively. Id. at 726–27; Act of June
21, 1934, Pub. L. No. 442, 48 Stat. 1185 (codified as amended at 45 U.S.C. § 151 et seq.). After the
1934 amendments, if either party filed a “minor” dispute with the Board, the Board had “exclusive
primary jurisdiction” to issue a decision that was binding as to both parties. Pa. R.R. Co. v. Day,
360 U.S. 548, 550 (1959) (noting that “the National Railroad Adjustment Board ha[s] exclusive
primary jurisdiction over disputes between unions and carriers based on the provisions of a
collective bargaining agreement”).
In 1936, Congress extended most of the obligations and rights established by the Act to the
airline transport industry, requiring the parties to use “system, group, or regional boards of
adjustment,” instead of the National Railroad Adjustment Board, to resolve minor disputes. Int’l
Ass’n of Machinists v. Cent. Airlines, Inc., 372 U.S. 682, 686 (1963). Congress gave the system
boards the same exclusive jurisdiction over “minor disputes” in the airline industry that the National
Railroad Adjustment Board has over such disputes in the railroad industry. 45 U.S.C. § 184 (noting
that minor disputes “shall be handled in the usual manner up to and including the chief operating
officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this
manner, the disputes may be referred by petition of the parties or by either party to an appropriate
adjustment board”); see also Hawaiian Airlines, 512 U.S. at 258; W. Airlines, Inc., 480 U.S. at 1303
(O’Connor, Circuit Justice). Save for relying on system boards rather than the National Railroad
Adjustment Board as the forum for minor-dispute resolution, the Act makes the resolution process
and its applicability to minor disputes identical for the airline and railway industries. Cent. Airlines,
372 U.S. at 689 (“The statute directed that minor disputes be handled on the property in the usual

-- 4 of 9 --

No. 05-5478 Int’l Bhd. of Teamsters, et al. v. UPS Co. Page 5
manner, but failing adjustment either party could take the matter to the adjustment board, which was
to hear and decide it. This provision is applicable both to rail [ ] and air [ ] carriers.”).
Federal courts may enjoin strikes arising from minor disputes, Conrail, 491 U.S. at 304, and
may enjoin efforts to change the status quo during the resolution of a major dispute, id. at 302–03.
Parties may also seek review of arbitration decisions in federal court, though “[j]udicial review of
these Boards’ determinations has been characterized as ‘among the narrowest known to the law.’”
Buell, 480 U.S. at 563.
Finally, employment disputes not pre-empted by the dispute resolution procedures in the Act
are resolved in the manner dictated by the appropriate state or federal law. So, for example, claims
under the Federal Employer Liability Act may be filed in federal court, see Buell, 480 U.S. at 564;
claims under a state’s wrongful termination law may be filed in state court, see Hawaiian Airlines,
512 U.S. at 264; and claims under § 3, First of the Railway Labor Act for protection from
discrimination by a bargaining representative may be filed in federal court, see Conley v. Gibson,
355 U.S. 41, 44–45 (1957); Bhd. of R.R. Trainmen v. Howard, 343 U.S. 768, 774–75 (1952).
B.
In assessing whether the union may bring this claim in federal court, the parties share three
pieces of common ground. They agree that the dispute arises under the Railway Labor Act and not
under an independent state or federal law. They agree that this dispute is not a “representation”
dispute under § 2, Ninth of the Act, requiring investigation and resolution by the National Mediation
Board. And they agree that this was not a “major” dispute, which is to say it was not a dispute
regarding the formation of a collective bargaining agreement. They part company, however, over
(1) whether the dispute was a “minor” one subject to the exclusive jurisdiction of the system
adjustment board and (2) whether, even if the dispute was a minor one, the union has a separate
statutory right to bring this claim against UPS in federal court under § 2, Third.
We begin by addressing the union’s claim that this is not a minor dispute. Minor disputes,
the Supreme Court has held, “involve controversies over the meaning of an existing collective
bargaining agreement in a particular fact situation.” Hawaiian Airlines, 512 U.S. at 253 (internal
quotation marks omitted). A conflict thus is “minor” “[i]f the disputed action of one of the parties
can arguably be justified by the existing agreement or . . . if the contention that the labor contract
sanctions the disputed action is not obviously insubstantial.” Conrail, 491 U.S. at 306 (internal
quotation marks omitted). The Act imposes a “relatively light burden” on a railroad or airline to
“establish[] exclusive arbitral jurisdiction under the RLA”: So long as the “employer asserts a
contractual right to take the contested action, the ensuing dispute is minor if the action is arguably
justified by the terms of the parties’ collective-bargaining agreement.” Id. at 307.
In this instance, UPS has shown that its action was “arguably justified by the terms of the
parties’ collective-bargaining agreement.” The company “assert[ed] a contractual right” to refuse
to recognize Tulipana as the union’s representative on the Louisville Safety Committee. In a letter
dated April 2, 2003, UPS’s Labor Manager, Bob Ragar, explained to the President of Local 2727,
Joe Darmento, that “Article 20, Section 4 [(b), (c) and (d)] of the CBA clearly refers to [the]
individuals being on or chairing the safety committees as being employees. Mr. Tulipana does not
meet this criteria.” JA 109. In a subsequent letter, dated April 30, 2003, Ragar stated that Article
20, § 4 of the collective bargaining agreement limits membership on the safety committees to “UPS
employees who are 2727 members and appropriate Company representatives.” JA 89. Noting that
there had never been a member of a safety committee who was not an employee of UPS, Ragar
added that “[n]othing has changed in the contract to now allow such [a] practice.” Id. Connie
Clifton, the Aircraft Maintenance Health and Safety Manager for UPS, also noted in a letter to

-- 5 of 9 --

No. 05-5478 Int’l Bhd. of Teamsters, et al. v. UPS Co. Page 6
Darmento, dated June 27, 2003, that “[t]he question of whether Mr. Tulipana can be on the Safety
Committee is simply a contractual issue.” JA 110.
Under these circumstances, the collective bargaining agreement “arguably justified” UPS’s
interpretation. The contract does not directly say that union representatives on the safety committee
must be UPS employees. But it does say many other things intimating that union representatives
should be UPS employees. See Article 20, § 4(b), JA 81 (“Participation [on safety committees] by
employees who are covered by this agreement will be voluntary.”); id. § 4(c), JA 81–82 (“Time
spent in committee meetings by designated committee members shall be without loss of time or pay.
Should the committee meeting occur during hours that are other than the employee’s normal work
shift, the hours will be paid at straight time rates and shall not be considered hours worked for
overtime pay calculations. Committee members who are already working at an overtime rate when
a meeting is scheduled shall be replaced by an alternate.”); id. § 4(d), JA 82 (A committee member
“shall be permitted reasonable time by the immediate supervisor to investigate . . . without loss of
time or pay. It is understood that such investigations shall not interfere with the performance and
completion of [the member’s] regular assigned duties.”). Even the compensation provision for the
job that the union wants Tulipana to hold shows that the parties contemplated that an employee
would fill the position. See id. § 4(c), JA 82 (“Time spent in committee meetings by the designated
Union gateway safety committee chairperson at locations having more than twenty-five employees
covered by this Agreement shall be compensated at the appropriate straight or overtime rate of pay
in accordance with hours worked in his work week, regardless of the Union gateway safety
committee chairperson’s regular assigned shift.”) (emphasis added).
Because the safety committees owe their creation to the collective bargaining agreement and
cannot exist independently of it, the staffing of the committees “may be conclusively resolved by
interpreting the existing [collective bargaining agreement].” Conrail, 491 U.S. at 305. Section 4(a)
of Article 20 creates the committees in order to encourage the parties “to cooperate with and assist
each other in maintaining safe, healthful, and sanitary working conditions and in preventing work-
related accidents.” JA 81. Section 4(b) of the agreement lays out the specific numbers of
representatives that will sit on each committee, noting that “[n]o other participants will attend
without mutual agreement by the committee.” Id. Because the agreement places explicit limitations
on the membership of the safety committees (e.g., membership must be voluntary and only certain
numbers of individuals may sit on the committees), the agreement also represents the most likely
source for determining whether members of those committees must be employees. Proving the
point: in a previous dispute between the parties over whether UPS could appoint an employee of
its insurance company to the same safety committee, the union wrote to UPS that such an individual
“is not permitted to be a member of any UPS/Local 2727 Joint Safety and Health Committees under
the current Labor Agreement,” noting further that “I recommend that you review the Collective
Bargaining Agreement . . . for guidance with future decisions.” JA 112.
Bearing in mind UPS’s “relatively light burden” in showing that this dispute turns on an
interpretation of the collective bargaining agreement, we conclude that its claims are “arguably
justified” by the agreement and that the dispute can be “conclusively resolved” through
interpretation of that contract. The company’s refusal to acknowledge Tulipana as union chairman
of the Louisville Safety Committee thus constitutes a “minor dispute” under the Act, placing it
within the exclusive jurisdiction of the system adjustment board.
C.
The union argues that even if this controversy fits within the “minor dispute” rubric, the
federal courts retain jurisdiction under § 2, Third of the Act. That provision of the Act says:

-- 6 of 9 --

No. 05-5478 Int’l Bhd. of Teamsters, et al. v. UPS Co. Page 7
Designation of representatives. Representatives, for the purposes of this Act shall
be designated by the respective parties without interference, influence, or coercion
by either party over the designation of representatives by the other; and neither party
shall in any way interfere with, influence, or coerce the other in its choice of
representatives. Representatives of employees for the purposes of this Act need not
be persons in the employ of the carrier, and no carrier shall, by interference,
influence, or coercion seek in any manner to prevent the designation by its
employees as their representatives of those who or which are not employees of the
carrier.
45 U.S.C. § 152(3). By refusing to recognize Tulipana as its representative on the safety committee,
the union argues (1) that UPS violated this provision and (2) that the federal courts have jurisdiction
to cure the violation. We disagree with each premise of this argument and necessarily reject its
conclusion.
Tulipana, to begin, is not a “representative” within the meaning of § 2, Third. The provision
protects the rights of employees to choose their own “collective bargaining representative[],” Gen.
Comm. of Adjustment v. Mo.-Kan.-Tex. R.R. Co., 320 U.S. 323, 329 (1943), not to choose any
member of any committee ever set up by a collective bargaining agreement, whether called a
“representative” or not. Numerous Supreme Court decisions confirm the point. See Int’l Ass’n of
Machinists v. Street, 367 U.S. 740, 759 (1961); Order of R.R. Conductors v. Pa. R.R. Co., 323 U.S.
166, 172 (1944) (recognizing that § 2, Third protected the employees’ choice of a “bargaining
representative”); Mo.-Kan.-Tex. R.R. Co., 320 U.S. at 329 (“Thus Congress stated in § 2, Third of
the 1926 Act that the choice by employees of their collective bargaining representatives should be
free from the carriers’ coercion and influence.”); Virginian R.R. Co., 300 U.S. at 548.
In addition to this authority, § 2, Third twice states that it applies to representatives “for the
purposes of this Act,” not to representatives for any purposes the union chooses to use them. Read
in conjunction with other parts of the section, the provision concerns the collective-bargaining
process and other interactions between employer and employee that occur before the parties enter
into (or re-negotiate) a collective bargaining agreement. All of which would seem to explain why
the Court has observed that § 2, Third and Fourth, as amended in 1934, address “primarily the
precertification rights and freedoms of unorganized employees.” Trans World Airlines, Inc. v.
Indep. Fed’n of Flight Attendants, 489 U.S. 426, 440 (1989). Had Mr. Tulipana been the
representative of UPS employees for negotiating a collective bargaining agreement with the
company, that might have been a different matter. Were that the case and were the dispute not a
“major” one, the court might have jurisdiction to determine whether § 2, Third prevented UPS from
interfering with his ability to carry out that duty. But since this dispute contemplates representation
only on a committee created by the collective bargaining agreement, a conflict over Tulipana’s
service on that committee represents a “dispute[] growing out of grievances or out of the
interpretation or application of agreements covering rates of pay, rules, or working conditions,” 45
U.S.C. § 151a(5), namely a “minor dispute” that the Act subjects to mandatory arbitration.
Nor are we aware of any case that holds differently—that holds in other words that the
requirements of § 2, Third extend beyond the collective bargaining context. Contrary to the union’s
suggestions, Texas & New Orleans Railroad Co. v. Brotherhood of Railway & Steamship Clerks,
281 U.S. 548 (1930), involved collective bargaining representation, arising as it did from an
employer that started its own union and tried to pressure its employees into joining it. Nowhere in
that case, or in any other, have we been able to find the slightest indication that Congress meant
“representatives” in this provision to apply outside of that context. Cf. Salcedo v. Norfolk & W. Ry.
Co., No. 82-1766, 1983 U.S. App. LEXIS 12424, at *2 (6th Cir. Nov. 7, 1983) (“[S]ection [2] only
protects an employee’s choice of a collective bargaining representative.”).

-- 7 of 9 --

No. 05-5478 Int’l Bhd. of Teamsters, et al. v. UPS Co. Page 8
Even were that not the case, even were we inclined to agree that Tulipana was a
representative under § 2, Third, federal-court jurisdiction over actions filed under that section
remains “extremely limited.” Wightman v. Springfield Terminal Ry., 100 F.3d 228, 234 (1st Cir.
1996). Some lower courts have recognized that even if a dispute arises in the representation, major
or minor dispute setting, federal courts may theoretically have jurisdiction under § 2, Third and
Fourth, if there is evidence of “carrier conduct reflecting anti-union animus, . . . discrimination, or
coercion” or when “a carrier commit[ed] acts of intimidation that c[ould not] be remedied by
administrative means, or commit[ed] a fundamental attack on the collective bargaining process or
ma[de] a direct attempt to destroy a union.” Id.; see also Dempsey v. Atchison, Topeka & Santa Fe
Ry., 16 F.3d 832, 841 (7th Cir. 1994) (“In situations such as ours, known as ‘post-certification’
controversies, Section 2, Fourth has been interpreted as providing protection where the plaintiff can
show that the employer’s actions strike a fundamental blow to union or employer activity and the
collective bargaining process itself.”) (quotation marks omitted); Nat’l R.R. Passenger Corp. v. Int’l
Ass’n of Machinists and Aerospace Workers, 915 F.2d 43, 51 (1st Cir. 1990) (“[J]udicial
intervention under Section 2 Third and Fourth is limited to circumstances where the employer’s
conduct has been motivated by anti-union animus or an attempt to interfere with its employees’
choice of their collective bargaining representative or constitutes discrimination or coercion against
that representative or involves acts of intimidation which cannot be remedied by administrative
means.”) (internal quotation marks and citation omitted); Indep. Union of Flight Attendants v. Pan
Am. World Airways, Inc., 789 F.2d 139, 142 (2d Cir. 1986) (same); Tello v. Soo Line R.R. Co., 772
F.2d 458, 462 (8th Cir. 1985) (“Tello does not raise a cognizable claim under 45 U.S.C. § 152
(Third) because he failed to present adequate evidence that Soo Line’s actions have been motivated
by anti-union animus or that Soo Line’s actions were an attempt to interfere with its employees’
choice of their collective bargaining representative.”); Local Union No. 2000, Int’l Bhd. of
Teamsters v. Nw. Airlines, 21 F. Supp. 2d 751, 756 (E.D. Mich. 1998). Notably, none of these
courts found such jurisdiction to be appropriate in practice.
Even if we were to embrace this approach to post-certification disputes about representation,
which we need not decide today, the union has not presented any evidence of anti-union animus,
coercion or intimidation accompanying UPS’s refusal to allow Tulipana to serve as Union Chair of
the Louisville Safety Committee. In its letters, UPS consistently refers to the dispute as a contract
dispute and repeatedly offers to deal with Tulipana in any other capacity. UPS requests only that
the representative to the committee be a UPS employee, a requirement that it premises on the
collective bargaining agreement. While the union refers to the dispute as an “attack on the union’s
fundamental right to select its own representative” and suggests that the acts of UPS are coercive,
Union Br. at 25, it alleges no behavior, aside from UPS’s simple refusal to allow Tulipana to serve,
that substantiates those loaded phrases. Absent more concrete allegations of anti-union animus, the
union cannot show that UPS’s conduct has been sufficiently coercive to trigger any “extremely
limited” jurisdiction under § 2, Third—even if that jurisdiction did extend beyond representatives
appointed to handle collective bargaining on behalf of a union.
Attempting to dissuade us from this conclusion, the union argues that § 2, Third confers
rights that are always judicially enforceable. But in support of this sweeping proposition, it again
invokes Texas & New Orleans Railroad, 281 U.S. 548, a decision that (1) pre-dates the 1934
amendments to the Railway Labor Act, which gave exclusive jurisdiction over “minor disputes”
involving railroads to the National Railroad Arbitration Board and (2) pre-dates the 1936
amendments to the Act, which extended similar jurisdiction to the system adjustment boards for
airlines. Texas & New Orleans Railroad also involved a pre-certification dispute, which is to say
a dispute that arose before the employees had chosen a union and which the Court’s cases
acknowledge deserves closer scrutiny than the post-certification dispute at issue here. See Trans
World Airlines, 489 U.S. at 440. The union offers no explanation why we should ignore the path
charted by other courts that have addressed this issue and why instead we should grant federal
jurisdiction to post-certification “representation” disputes over the meaning of a collective

-- 8 of 9 --

No. 05-5478 Int’l Bhd. of Teamsters, et al. v. UPS Co. Page 9
bargaining agreement, notwithstanding the existence of the system adjustment boards, which were
established for this precise purpose. Because Congress has delegated exclusive jurisdiction over this
dispute to the system adjustment boards, the district court correctly held that it lacked statutory
jurisdiction to resolve the matter.
Neither does Fennessy v. Southwest Airlines, 91 F.3d 1359 (9th Cir. 1996), change matters.
In that case, the court concluded that Fennessy’s dispute was not a minor one, a factor that underlay
the court’s determination that there was federal jurisdiction over the claim. Id. at 1362. A more
recent decision of the Ninth Circuit, Ass’n of Flight Attendants v. Horizon Air Industries, Inc., 280
F.3d 901, 905–06 (9th Cir. 2002), narrowed Fennessy to its facts, reasoning that it “involved a de
facto precertification dispute,” a setting that makes the precedent inapplicable here.
The union, lastly, argues that the district court erred when it failed to order an evidentiary
hearing on the issues of material fact that the union claims remain unresolved in this case, namely
whether it waived the right to have non-UPS employees sit on the safety boards and whether UPS
has recognized Tulipana in any capacity. Because those fact questions come within the exclusive
jurisdiction of the system adjustment boards, we agree with the district court’s decision to deny the
evidentiary hearing.
III.
For these reasons, we affirm.

-- 9 of 9 --