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Pursuant to Sixth Circuit Rule 206

File Name: 06a0148p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

AFL-CIO, and TEAMSTERS LOCAL UNION NO. 2727,

Plaintiffs-Appellants,

v.

UNITED PARCEL SERVICE CO.,

Defendant-Appellee.

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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
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
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
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 collectivebargaining 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 selfhelp. 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
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
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 workrelated 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:
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.”).
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
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.