United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-4164

___________

Independent Federation of Flight *

Attendants; Barry Schimmel; *

Flip Becker; Terry Fitzgerald; *

Jerry Giustiniani; Sheila McCann; *

Terry Bradley; Jason Motley, *

*

Appellants, *

* Appeal From the United States 

v. * District Court for the Eastern

* District of Missouri.

Sherry Cooper; *

*

Defendant, *

*

International Association of Machinists *

and Aerospace Workers, AFL-CIO, *

Lodge 142; International *

Association of Machinists and *

Aerospace Workers, AFL-CIO, *

*

Appellees. *

___________

Submitted: December 8, 1997

Filed: April 14, 1998

___________

Before FAGG, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

BEAM, Circuit Judge.
Appellants are the Independent Federation of Flight Attendants, five individual 1

members of IFFA's Executive Board, and two flight attendants who are IFFA members

in good standing. We will refer to them collectively as IFFA. 

The Honorable Catherine D. Perry, United States District Judge for the Eastern 2

District of Missouri.

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The Independent Federation of Flight Attendants appeals the district court's 1 2

entry of judgment on the pleadings dismissing their tort claims against the International

Association of Machinists and Aerospace Workers. Because we find that the relief

sought by these claims is inextricably intertwined with a representation dispute within

the exclusive jurisdiction of the National Mediation Board, we affirm.

I. BACKGROUND

This case is the latest in a series of cases spawned by a dispute between two

unions over the right to represent the flight attendants that Trans World Airlines (TWA)

employs. See Independent Fed'n of Flight Attendants v. Cooper, 134 F.3d 917 (8th Cir.

1998) and International Ass'n of Machinists and Aerospace Workers v. Schimmel, 128

F.3d 689 (8th Cir. 1997). Because this appeal comes to us from the district court's

grant of a motion for judgment on the pleadings, we accept as true the well-pleaded

allegations in the complaint and draw all inferences therefrom in favor of the nonmoving party. See Fed. Rule of Civ. P. 12(c); Lion Oil Co. v. Tosco Corp., 90 F.3d

268, 270 (8th Cir. 1996).

The Independent Federation of Flight Attendants (IFFA) was the incumbent

representative of TWA's flight attendants and its president was Sherry Cooper. The

International Association of Machinists and Aerospace Workers (IAM) represented

other classes of TWA employees. In the spring of 1996, Cooper began secret

discussions with IAM about merging the two unions and thereby extinguishing IFFA's

existence. These negotiations occurred without the knowledge or approval of IFFA's
IFFA also named Cooper as a defendant, alleging that she had violated the

3

Labor Management Reporting and Disclosure Act, 29 U.S.C. § 501(b). The state law

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executive board. Cooper, as IFFA president, obtained the IFFA membership list from

TWA and forwarded it to IAM. Cooper then presented a merger proposal to IFFA's

executive board. The executive board refused to consider the proposal, and relieved

Cooper of her duties as IFFA president on the ground that her secret negotiations with

IAM exhibited disloyalty to IFFA. 

After the IFFA executive board rejected the merger, IAM began an active

organizing campaign among TWA's flight attendants. It used the mailing list procured

by Cooper to mail all TWA flight attendants materials that featured the IFFA logo

including a video in which Cooper urged support for IAM. IAM filed a representation

application which prompted the National Mediation Board to conduct a representation

election. See 45 U.S.C. § 152, Ninth. 

Before the ballots had been counted, IFFA filed allegations of election

interference with the Mediation Board. It claimed that IAM's use of a "stolen"

membership list and a disloyal employee was an abuse of Mediation Board procedures,

and that the election should therefore be set aside. The Board found that the

"allegations and evidence [did] not present a prima facie case to warrant further

investigation." Supp. App. at 78. It reasoned that Cooper's support of IAM

"implicate[d] disagreement within IFFA's leadership" and that IAM had not acted

improperly in utilizing Cooper. Id. at 73. The Board also concluded that IAM's use

of the membership list did "not constitute fraud, coercion, or unlawful conduct in

violation of Section 2, Ninth of the Act." Id. (quotation omitted). The Board then

counted the ballots, and announced that IAM had won the election.

IFFA sued IAM in district court, asserting misappropriation of trade secrets and

tortious interference with contract . IFFA claimed that IAM's use of the IFFA logo and 3
claims against IAM are therefore before us as part of the supplemental jurisdiction of

this court. See 28 U.S.C. § 1367(a). The claims against Cooper were not dismissed

and she is not a party to this appeal.

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membership list violated Missouri's trade secrets statute and that IAM tortiously induced

Cooper to breach her obligations to IFFA. The district court granted IAM judgment on

the pleadings. It held that these claims involve a representation dispute within the

National Mediation Board's exclusive jurisdiction. IFFA appeals.

 

II. DISCUSSION

A. Mootness

After oral argument, we directed the parties to identify the issues remaining to be

decided after Schimmel, a related case before this court. 128 F.3d 689. In Schimmel we

held that IFFA was not entitled to retain funds that were directly acquired from union

dues paid by TWA's flight attendants. See id. at 690. We drew a careful distinction,

however, between dues money and "funds derived from sources other than union dues

to which IFFA is otherwise entitled." Id. at 694. 

The membership list and union logo are assets which are distinct from membership

dues. The list was compiled and the logo was designed by the union, not its members.

Therefore, the IFFA would be entitled to retain compensation for the misappropriation

of these resources because they would be "funds that reflect sources independent of

union dues." Id. at 693 n.7. Since IFFA continues to have a personal stake in the

outcome of this lawsuit, Schimmel has not mooted its claim. See Comfort Lake Ass'n,

Inc. v. Dresel Contracting, Inc., Nos. 96-3654, 96-3919, 96-4220, 1998 WL 92213 at

*2 (8th Cir. March 5, 1998). 
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B. Preemption

Having concluded that IFFA's claim is not moot, we must next consider whether

the claim is preempted by the Railway Labor Act (RLA). The RLA provides a

mechanism for resolving labor disputes involving common carriers in interstate

commerce without disrupting the nation's transportation services. See 45 U.S.C. § 151,

First; see also Sheet Metal Workers' Int'l Ass'n v. Burlington N. R.R., 893 F.2d 199, 202

(8th Cir. 1990) (detailing the purposes of RLA). The RLA authorizes the National

Mediation Board to certify the bargaining representative for a carrier's employees. See

45 U.S.C. § 152, Ninth. The Mediation Board's power to resolve representation disputes

under the RLA is exclusive. Switchmen's Union v. National Mediation Bd., 320 U.S.

297, 303 (1943). Congress intended the Board to resolve "jurisdictional disputes

between unions," and a district court has no power either to review Board certifications

or to make certifications itself. Id. at 302 & 300.

However, there is no preemption when the conduct complained of is only of

peripheral concern to the RLA. See, e.g., Hawaiian Airlines, Inc. v. Norris, 512 U.S.

246, 263 (1994) (holding that state tort claims that do not require interpretation of

collective bargaining agreement are not preempted by the RLA). In the context of a

representational dispute, courts have held that a claim for damages is not necessarily

preempted by the RLA. See, e.g., Association of Flight Attendants v. Delta Air Lines,

Inc., 879 F.2d 906, 909 (D.C. Cir. 1989). In Delta, after it was decertified by the

National Mediation Board, a union sued for breach of a survivorship clause in the

collective bargaining agreement. The court held that the union could bring a suit for

damages in federal district court. It concluded that this would not encroach on the

Board's jurisdiction because "an award of damages would have no effect on the NMB's

certification determination . . . [and] would not cause any confusion as to which union

is the proper . . . representative." Id. at 913-14.
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We read Delta to hold that certain causes of action arising out of representation

disputes are not preempted by the RLA. The test for RLA preemption is whether an

award of damages would be the functional equivalent of resolving the representation

dispute. See id. at 915-17; see also Hester v. Brotherhood of R.R. Trainmen, 206 F.2d

279 (8th Cir. 1953) (holding that a claim for damages is preempted because an award

would require resolution of representation dispute). 

In this case, although IFFA's causes of action are distinct from the representation

dispute, under the allegations advanced, we can conceive of no remedy for these claims

that would not impermissibly involve the Mediation Board's certification decision. See

id. at 282. IFFA seeks two remedies: an injunction prohibiting IAM from employing

Cooper, and reimbursement for IFFA's costs in defending against IAM's membership

raid. The Mediation Board has already determined that IAM did not engage in unlawful

conduct when it utilized Cooper during the organizing campaign. See Supp. App. at 73.

An injunction against IAM's future employment of Cooper would be the functional

equivalent of judicial review of that conclusion, which is clearly prohibited. See

Switchmen's, 320 U.S. at 303. Similarly, IFFA's cost of defending against IAM's

organization of the TWA flight attendants is central to the representation conflict

between two rival unions. The acts for which IFFA seeks reimbursement are "the core

activities with which the Act is concerned: union organizing and the employee's election

of an exclusive bargaining representative." Pennsylvania Nurses Ass'n v. Pennsylvania

State Educ. Ass'n, 90 F.3d 797, 803 (3d Cir. 1996) (interpreting RLA's companion

statute, the NLRA), cert. denied, 117 S. Ct. 947 (1997). Reimbursement for the cost of

defending against the raid would have the effect of making the party that prevailed in

front of the Mediation Board pay the costs of the loser. Such an outcome would reach

into the exclusive power of National Mediation Board over the labor disputes of

common carriers. We do not mean to imply that we approve of IAM's actions in this

case; indeed, we do not. However, Congress has made our approval or disapproval of

IAM's behavior irrelevant. The claims of IFFA against IAM are inextricably intertwined

with a representation dispute, which is within the exclusive
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jurisdiction of the National Mediation Board. Therefore, the district court was correct

in granting judgment on the pleadings.

III. CONCLUSION

For the foregoing reasons, the decision of the district court is affirmed.

A true copy.

 ATTEST:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.