Fairbairn v. United Airlines Inc , 250 F.3d 237 ( 2001 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DAVID L. FAIRBAIRN, 
Plaintiff-Appellee,
v.

UNITED AIR LINES, INCORPORATED,
Defendant-Appellant. No. 00-1438
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO,
Amicus Curiae.

DAVID L. FAIRBAIRN, 
Plaintiff-Appellee,
v.

UNITED AIR LINES, INCORPORATED,
Defendant-Appellant. No. 01-1082
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO,
Amicus Curiae.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CA-99-43-A)
Argued: February 26, 2001
Decided: May 4, 2001
Before WILKINS, NIEMEYER, and LUTTIG, Circuit Judges.
2 FAIRBAIRN v. UAL, INC.
Reversed and remanded by published opinion. Judge Niemeyer wrote
the opinion, in which Judge Wilkins and Judge Luttig joined.
COUNSEL
ARGUED: Roy Theodore Englert, Jr., MAYER, BROWN &
PLATT, Washington, D.C., for Appellant. John O’Brien Clarke, Jr.,
HIGHSAW, MAHONEY & CLARKE, Washington, D.C., for Appel-
lee. ON BRIEF: Andrew A. Nicely, MAYER, BROWN & PLATT,
Washington, D.C.; James W. Gladden, Jr., Kristen W. Crosby,
MAYER, BROWN & PLATT, Chicago, Illinois, for Appellant. Rob-
ert A. Bush, Ira L. Gottlieb, Joseph A. Kohanski, GEFFNER &
BUSH, Burbank, California, for Amicus Curiae.
OPINION
NIEMEYER, Circuit Judge:
We must decide in this case whether an employment dispute
between United Air Lines, Inc. ("United") and an employee whom
United discharged was subject to compulsory arbitration before an
appropriate adjustment board by virtue of the Railway Labor Act
("RLA"), 45 U.S.C. § 151 et seq., when the employee was not cov-
ered by any collective bargaining agreement nor represented by any
union. Based on the fact that United had posted a notice in the work-
place that "all disputes" would be "handled in accordance with the
requirements of the Railway Labor Act" and a United supervisor’s
affirmation of that notice in a deposition, the district court ordered
that the employment dispute be resolved as a "minor dispute" through
compulsory arbitration under the RLA. Because we conclude that the
compulsory arbitration requirements of the RLA do not extend to dis-
putes arising under individual employment contracts, we reverse. Our
reasons follow.
FAIRBAIRN v. UAL, INC. 3
I
David Fairbairn was hired by United in December 1991 as a reser-
vations sales and service representative in United’s Sterling, Virginia,
reservations center, and at that time, he signed a two-page employ-
ment contract with United, entitled, "Terms and Conditions of
Employment." In the contract, Fairbairn agreed "to comply with the
Company’s rules and regulations" and manifested his understanding
that his employment could be "terminated by United Air Lines or by
me at any time subject only to applicable requirements of law."
Posted in Fairbairn’s workplace was a "Notice to Employees of Air
Carriers," which stated that "[p]ursuant to the provisions of Section
2, Eighth, Railway Labor Act, as amended . . . you are hereby advised
that all disputes between United Airlines and its employees will be
handled in accordance with the requirements of the Railway Labor
Act." This posting was required by the RLA because of United’s sta-
tus as a "carrier" subject to that Act. See 45 U.S.C. §§ 152 Eighth,
181. Although United was party to collective bargaining agreements
with unions such as the International Association of Machinists and
Aerospace Workers and the Air Line Pilots Association, International,
which were subject to the RLA, Fairbairn did not belong to a union,
nor did any employee at his site. Moreover, his class of employees
was not represented by a union nor covered by any collective bargain-
ing agreement,1 although certain rules and regulations that applied to
Fairbairn were promulgated as a direct result of collective bargaining
between United and unions representing other employees.
During 1996 and 1997, Fairbairn applied for various transfers and
promotions to other jobs available at United, none of which he
received; for some, he was not even granted an interview. Perceiving
these rejections to be unfair, Fairbairn filed several grievances with
United, each of which, he alleges, United routinely denied. On April
30, 1997, Fairbairn met with Bill Koski, his operations supervisor, to
obtain feedback regarding one of his unsuccessful interviews. During
1
Subsequent to the termination of Fairbairn’s employment, the
National Mediation Board issued a decision certifying the International
Association of Machinists and Aerospace Workers as a duly designated
representative of the class of employees to which Fairbairn had
belonged. See In re United Airlines, Inc., 25 N.M.B. 411 (1998).
4 FAIRBAIRN v. UAL, INC.
this meeting, Fairbairn became agitated and upset at United’s man-
agement, including his manager, Diane Hallinan, for "placing road-
blocks and obstacles in his path to success." Fairbairn made several
threatening remarks directed at Hallinan and accused her of lying to
him and arranging for others to make false charges against him. Fair-
bairn contends that Koski and Hallinan conspired to provoke him into
losing his temper so that he could be charged with a violation of Unit-
ed’s rules and regulations and thereby be pretextually discharged. He
maintains the real reason for his subsequent discharge was his disabil-
ity. Fairbairn has a form of epilepsy that causes him to suffer from
seizures and occasional losses of memory.
In response to Fairbairn’s conduct at the April 30 meeting, United
did charge him with a violation of Article 34 of United’s published
rules of conduct, which provides that the "[m]aking or publishing
false, vicious or malicious statements concerning" United or any of
its employees constitutes grounds for termination. After giving Fair-
bairn a hearing, United discharged him by a letter, dated June 13,
1997. After unsuccessfully appealing the termination decision inter-
nally, Fairbairn asked United to submit the dispute to arbitration.
When United declined, Fairbairn filed this action in federal court,
alleging that United not only breached his contract of employment but
also violated the RLA in refusing to provide him the grievance proce-
dure and arbitration mandated for "minor disputes" under that Act.
Fairbairn also alleged in his complaint that United violated the Ameri-
cans with Disabilities Act in denying him transfers and promotions
and in terminating his employment because of his disability and in
retaliation for an earlier lawsuit that he had brought, unsuccessfully,
seeking accommodation of the disability.
The district court entered summary judgment in favor of United on
all of Fairbairn’s claims. Later, however, it modified its judgment on
the claim that the RLA had been violated and ordered the parties to
arbitrate pursuant to that Act. The court stated, "given the notice
posted by [United] and the deposition testimony of Diane Hallinan,
Plaintiff is in fact covered under the RLA. As such, Plaintiff should
be allowed to have his minor disputes heard in arbitration."
United noticed this appeal from the district court’s order directing
it to arbitrate under the RLA, contending that the district court
FAIRBAIRN v. UAL, INC. 5
improperly assumed that the "minor dispute" provision of the RLA
applies to Fairbairn, even though he is not covered by a collective
bargaining agreement or represented by a labor union.2 To express its
agreement with United’s position, the International Association of
Machinists and Aerospace Workers filed a brief as amicus curiae.
II
Fairbairn contends that his dispute over the process through which
his employment was terminated was a dispute "growing out of griev-
ances or out of the interpretation or application of agreements cover-
ing rates of pay, rules, or working conditions," 45 U.S.C. § 151a(5),
and that therefore it must be arbitrated in accordance with the RLA
as a "minor dispute," even though he is not covered by a collective
bargaining agreement nor represented by a union. Drawing on the
broad purposes of the Act to "provide for the prompt and orderly set-
tlement of all disputes growing out of grievances or out of the inter-
pretation or application of agreements covering rates of pay, rules, or
working conditions," id., Fairbairn argues that the compulsory arbitra-
tion provision of 45 U.S.C. § 184 covers any "minor dispute" and that
what constitutes a "minor dispute" is not limited to a dispute arising
under a collective bargaining agreement, but includes also a dispute
arising out of an individual employment contract. If Fairbairn’s posi-
tion is correct, then the district court would not have had jurisdiction
over this claim and its order compelling arbitration therefore would
have been proper. See United Transp. Union v. S.C. Pub. R.R.
Comm’n, 130 F.3d 627, 631-32 (4th Cir. 1997).
United argues that the entire RLA framework "presupposes, and
depends on, the designation of a bargaining representative." Once a
2
Contending that the order to arbitrate was either final or injunctive in
nature, United initially relied on 28 U.S.C. §§ 1291 and 1292(a) for
appellate jurisdiction. Concerned, however, that the order to arbitrate
might not in fact be final or that it might not be appealable as an injunc-
tion under § 1292(a), United also requested that the district court certify
its order for appeal under 28 U.S.C. § 1292(b). On November 29, 2000,
the district court did so, and on January 19, 2001, we granted United per-
mission to appeal. Accordingly, Fairbairn’s motion to dismiss for lack of
jurisdiction is denied.
6 FAIRBAIRN v. UAL, INC.
representative has been properly designated, the RLA classifies labor
disputes between the carrier and the union as the designated bargain-
ing representative into "major disputes," which relate to the formation
or modification of collective bargaining agreements, and "minor dis-
putes," which relate to the interpretation or application of such agree-
ments. As a more directly relevant argument, United asserts that the
Supreme Court has "flatly foreclosed" any conclusion that the com-
pulsory arbitration provisions of the RLA apply to individual employ-
ment agreements. See generally Hawaiian Airlines, Inc. v. Norris, 512
U.S. 246 (1994); Williams v. Jacksonville Terminal Co., 315 U.S. 386
(1942).
The RLA was enacted in 1926, during an era of protracted railway
labor disputes that had adversely affected the national economy, to
"provide for the prompt and orderly settlement of all disputes growing
out of grievances or out of the interpretation or application of agree-
ments covering rates of pay, rules, or working conditions," 45 U.S.C.
§ 151a(5), and to "avoid any interruption to commerce or to the oper-
ation of any carrier engaged therein," id. § 151a(1).3 To achieve its
purposes, the Act treats separately and differently two classes of labor
disputes, which the courts have denominated "major disputes" and
"minor disputes." We have previously explained the distinction as fol-
lows:
The RLA does not explicitly use the terms "major dispute"
or "minor dispute." Rather, these are terms adopted by the
courts from the vocabulary of railroad management and
labor as a shorthand method of describing two classes of
controversies Congress had distinguished in the RLA. . . .
"[M]ajor disputes" seek to create contractual rights, while
"minor disputes" seek to enforce those rights.
United Transp. Union, 130 F.3d at 631. In this case, Fairbairn charac-
terizes his attempt to enforce his individual contract rights as a "minor
3
Although the original Act applied only to rail carriers, in 1936 it was
extended to cover the airline industry. See 45 U.S.C. §§ 181-188. Section
181 extends the original Railway Labor Act, with the exception of § 153,
to "every common carrier by air engaged in interstate or foreign com-
merce." Section 184 replaces § 153 with respect to airlines.
FAIRBAIRN v. UAL, INC. 7
dispute" for which the RLA provides compulsory and binding arbitra-
tion and over which the district court lacks subject matter jurisdiction.
See 45 U.S.C. § 184.
Looking solely at the language of the RLA, it might appear, at first
blush, to authorize any employee to invoke compulsory arbitration
because it appears to cover disputes arising out of any agreement
"concerning rates of pay, rules, or working conditions," without speci-
fying whether the agreement is an individual employment contract or
a collective bargaining agreement. 45 U.S.C. §§ 152 Sixth, 184. But
because we are not interpreting this Act as a matter of first impres-
sion, we need not be concerned with our initial observations about the
text. The Supreme Court has repeatedly addressed the RLA’s scope,
concluding as early as 1942 that the RLA does not apply to all agree-
ments involving rates of pay, rules, or working conditions, but only
to collective bargaining agreements. See Williams, 315 U.S. at 399-
400 ("Independent individual contracts are not affected by the Act.
. . . The crucial § 6 is phrased so as to leave no doubt that only agree-
ments reached after collective bargaining are covered"); see also
Elgin, Joliet & E. Ry. v. Burley, 325 U.S. 711, 723 (1945) (noting that
covered minor disputes "contemplate[ ] the existence of a collective
agreement" (emphasis added)). And this limiting construction of the
Act’s scope has been applied continuously and consistently over the
60 years since. See Bhd. of R.R. Trainmen v. Chicago River & Ind.
R.R., 353 U.S. 30, 33 (1957) (defining minor disputes as "controver-
sies of the meaning of an existing collective bargaining agreement in
a particular fact situation" (emphasis added)); Consol. Rail Corp. v.
Ry. Labor Executives’ Ass’n, 491 U.S. 299, 310 (1989) ("[R]eferring
arbitrable matter to the Board will help to ‘maintain agreements’ by
assuring that collective-bargaining contracts are enforced by arbitra-
tors who are experts in ‘the common law of [the] particular industry’"
(alteration in original) (emphasis added) (quoting Steelworkers v.
Warrior & Gulf Navigation Co., 363 U.S. 574, 579 (1960))); Hawai-
ian Airlines, 512 U.S. at 253 ("Minor disputes involve controversies
over the meaning of an existing collective bargaining agreement in
a particular fact situation" (emphasis added) (internal quotation marks
and citation omitted)); Brown v. Trans World Airlines, 127 F.3d 337,
340 (4th Cir. 1997) ("Hawaiian Airlines instructs that the Railway
Labor Act’s arbitral mechanism does not mandate the arbitration of
8 FAIRBAIRN v. UAL, INC.
state-law claims that exist independently of the collective bargaining
agreement" (emphasis added)).
This restrictive interpretation of the term "agreement" as used in
the RLA is consistent with its purpose of encouraging collective bar-
gaining and resolution of associated disputes to prevent strikes that
adversely affect interstate commerce. Obviously, an individual
employee’s dispute with management regarding that employee’s indi-
vidualized concern is highly unlikely to provoke the collective enthu-
siasm required for a strike and therefore unlikely to adversely affect
interstate commerce. This is especially true when the employee is not
a member of a labor union.
Fairbairn argues nonetheless that his right to arbitrate under the
RLA has been implicitly recognized by the Supreme Court’s decision
in Burley, see 325 U.S. at 728-41, and therefore that the numerous
other references in Supreme Court opinions to the requirement of a
collective bargaining agreement to trigger arbitration are dicta that we
should ignore. He points to Burley’s statement that the RLA’s minor
dispute procedures provide employees with rights that are "separate
and distinct from any the collective agent may have to represent the
collective interest," id. at 738, and to its holding that an employee has
an individual right to utilize the minor dispute procedure against his
employer without the involvement or interference of a union repre-
sentative, see id. at 741. Fairbairn’s argument, however, grossly mis-
characterizes the holding and discussion in Burley and draws
conclusions that are simply not supported by that case. Burley holds
simply that when an employee has a grievance and is represented by
the union, in pursuing resolution of that dispute under the RLA, the
employee may proceed alone and reject the union’s assistance. The
holding is made against the necessary backdrop of a collective bar-
gaining agreement and the collective interests of the union that might
compete with the individual interests that the collective agent simulta-
neously represents. The Court in Burley found the individual’s griev-
ance to be a "minor dispute," characterizing a "minor dispute" as
"contemplat[ing] the existence of a collective agreement already con-
cluded or, at any rate, a situation in which no effort is made to bring
about a formal change in terms or to create a new one." Id. at 723
(emphasis added). Indeed, if the Burley court had even considered the
possibility that an employee not covered by a collective bargaining
FAIRBAIRN v. UAL, INC. 9
agreement could bring a claim under the RLA, it surely would have
mentioned it because such a possibility would have provided disposi-
tive support for its holding that union involvement was not required
by the Act. Instead, the Burley discussion contains the assumption
that RLA-covered employees will be the subjects of collective bar-
gaining agreements and therefore represented by unions generally.
Thus, Burley in fact undermines rather than bolsters Fairbairn’s argu-
ment.
Fairbairn also argues that he was covered by the RLA because
United posted a notice in the workplace saying so. But the terms of
the notice that United posted in the workplace do not support his con-
tention. The notice is a printed form document, general in application,
that is required by the RLA and that notifies employees of covered
carriers that "all disputes between [the carrier] and its employees will
be handled in accordance with the requirements of the Railway Labor
Act." (Emphasis added). The notice both restricts the class of disputes
handled to those between United and "the employees" collectively,
not individually, and makes clear that disputes will be handled under
the RLA only insofar as that Act requires them to be. Thus, by its
own terms, the notice does not substantively alter the coverage of the
RLA. In any case, it could not be read to alter the RLA’s coverage.
Although Fairbairn does not expressly make the argument, he implies
that the posting of the notice and his reliance on it created some form
of a promissory estoppel binding United to arbitrate under the RLA.
This argument, however, has no merit because the RLA’s compulsory
arbitration mechanism is jurisdictional, divesting federal courts of any
power to adjudicate disputes covered by compulsory arbitration. See
Consolidated Rail Corp., 491 U.S. at 303-04; United Transp. Union,
130 F.3d at 631. A private entity cannot, no more than can a court,
override the jurisdictional limits established by Congress. See Finley
v. United States, 490 U.S. 545, 547-48 (1989).
Finally, Fairbairn argues that because some of United’s employees’
policies, which applied to him, were the direct result of collective bar-
gaining, he was somehow covered under the collective bargaining
agreement. It is undisputed, however, that Fairbairn was not repre-
sented by the union, and, of course, any collective bargaining agree-
ment creates rights only between the union on behalf of employees
represented by it and the employer. Although Fairbairn seems to sug-
10 FAIRBAIRN v. UAL, INC.
gest that he was a third-party beneficiary to such an agreement, he
was not a member of the class of employees represented and was
therefore not a direct or intended beneficiary. Any privileges that he
may have obtained did not arise under the collective bargaining
agreement, even if they applied as a consequence of it. The simple
grant of benefits to an unrepresented employee like Fairbairn does not
confer on him standing to enforce the terms of the agreement from
which the benefits originated. This truth is brought into sharp focus
by the fact that Fairbairn’s arguments are rejected and opposed in this
case by both parties to the collective bargaining agreement on which
he relies.
We observe additionally that if we were to extend coverage of the
RLA to every individual employment contract between a carrier and
its individual employees — as Fairbairn’s argument would have us do
— the result would be dramatic, as we would then be required to con-
clude that state law enforcement of all such contracts is preempted.
See Hawaiian Airlines, 512 U.S. at 254. Even if we were confronting
the RLA as a matter of first impression, we would be loath to con-
clude that Congress meant to bring about such a result without clear
language or evidence that it intended the RLA to bring about such a
radical change in the legal landscape. Cf. id. at 255-56 ("[N]o pro-
posed interpretation demonstrates a clear and manifest congressional
purpose to create a regime that broadly preempts substantive protec-
tions extended by the States").
In sum, we conclude that Fairbairn’s employment disputes with
United arising in connection with his individual employment contract
are not "minor disputes" covered by the RLA and therefore that they
are not subject to compulsory arbitration before an appropriate adjust-
ment board. Accordingly, we reverse the contrary ruling of the district
court and remand with instructions to vacate the order compelling
arbitration.
REVERSED AND REMANDED