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 Independ ent 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.
-2- 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 Associa tionof Machinists and Aerospace Workers. Because we find that the relie f 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 tw o unions over the right to represent the flight attendants that Trans Wo rld Airlines (TWA) employs. See Independent Fed'n of Flight Attendants v. Cooper , 134 F.3d 91 7 (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 grantof a mo tion for judgment on the pleadings, we accept as true the well-pleade d alleg ations in the complaint and draw all inferences therefrom in favor of the non

moving 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 incumben t repre sentative of TWA's flight attendants and its president was Sherry Cooper. Th e International Association of Machinists and Aerospace Workers (IAM) represente d other classes of TWA employees. In the spring of 1996, Cooper began secre t discussions with IAM about merging the two unions and thereby extinguishing IFFA's existence . These negotiations occurred without the knowledge or approval of IFFA'sIFFA a lso named Cooper as a defendant, alleging that she had violated th e 3 Labor Management Reporting and Disclosure Act, 29 U.S.C. § 501(b). The state law -3- 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 pres ident on the ground that her secret negotiations with IAM exhibited disloyalty to IFFA.

Aft er the IFFA executive board rejected the merger, IAM began an activ e 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 log o including a video in which Cooper urged s upport for IAM. IAM filed a representation application which prompted the Natio nal Mediation Board to conduct a representation election. See 45 U.S.C. § 152, Ninth.

Be fore the ballots had been counted, IFFA filed allegations of electio n interferenc e with the Mediation Board. It claimed that IAM's use of a "stolen " membership list and a disloyal employee was an abuse of Media tion Board procedures, and tha t the election should therefore be set aside. The Board found that th e "allegati ons and evidence [did] not present a prima facie case to warrant furthe r inves tigation." Supp. App. at 78. It reasoned that Cooper's support of IA M "implic ate[d] disagreement within IFFA's leadership" and that IAM had not acte d 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 i n violationof Section 2, Ninth of the Act." Id. (quotation omitted). The Board the n 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 co ntract . IFFA claimed that IAM's use of the IFFA logo and 3claims ag ainst 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.
-4- membership list violated Missouri's trade secrets statute and that IAM tortiously induced Cooper to breach her obligati ons to IFFA. The district court granted IAM judgment on the pleadings. It held that these claims involve a representation dispute within th e 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 cour t. 128 F.3d 689. In Schimmelwe held t hat IFFA was not entitled to retain funds that were directly acquired from unio n dues pa id by TWA's flight attendants. See id

. at 690. We drew a careful distinction , how ever, 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 members hip dues. The l ist was compiled and the logo was designed by the union, not its members. Theref ore, the IFFA would be entitled to retain compensation for the misappropriation of th ese resources because they would be "funds that reflect sources independent o f union dues." Id. at 693 n.7. Since IFFA continues to have a personal stake in th e outcome of this lawsuit, Schimmelhas 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).-5-

B. Preemption
Having concluded

that IFFA's claim is not moot, we must next consider whether the clai m is preempted by the Railway Labor Act (RLA). The RLA provides a
me chanism

for resolving labor disputes involving common carriers in interstat e commerce without disrupting the natio n'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. 1 990) (detailing the purposes of RLA). The RLA authorizes the Nationa l Mediation Board to cert

ify the bargaining representative for a carrier's employees. See 45 U.S.C. § 152, Ninth. The Mediation Board's power to resolve representat ion 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 dispute s 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 o f 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 o f colle ctive bargaining agreement are not preempted by the RLA). In the context of a representat ional dispute, courts have held that a claim for damages is not necessaril y preempted b y the RLA. See, e.g. , Association of Flight Attendants v. Delta Air Lines, Inc. , 8 79 F.2d 906, 909 (D.C. Cir. 1989). In Delta , after it was decertified by th e National Me diation Board, a union sued for breach of a survivorship clause in th e
co llective bargaining agreement. The court held that the union could bring a suit fo r damages in federal district court. It concluded that this would not encroach on th e Board's jurisdiction becaus e "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.-6-

We read Delta

to hold that certain causes of action arising out of representation disput es are not preempted by the RLA. The test for RLA preemption is whether a n
awar d of damages would be the functional equivalent of resolving the representatio n 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 advan ced, we can conceive of no remedy for these claims that would not impermis sibly involve the Mediation Board's certification decision. See id

. at 282. IFFA seeks two remedies: an injunction prohibiting IAM from employin g Cooper , and reimbursement for IFFA's costs in defending against IAM's membershi p raid. The Mediation Board has already determined th at IAM did not engage in unlawful conduct when it utilized Cooper during the organi zing campaign. See Supp. App. at 73. An injunction against IAM's future employment of Cooper would be the functiona l equivalen t

of judicial review of that conclusion, which is clearly prohibited. Se e Swi tchmen's , 320 U.S. at 303. Similarly, IFFA's cost of defending against IAM' s organizati onof the TWA flight attendants is central to the representation conflic t between two rival unions. The acts for which IFFA seeks reimbursement are "the core activities with which the Act is concerned: uni on 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 companio n statute, the NLRA), cert. denied , 117 S . Ct. 947 (1997). Reimbursement for the cost of defending a gainst the raid would have the effect of making the party that prevailed i n front of th e Mediation Board pay the costs of the loser. Such an outcome would reach int o the exclusive power of National Mediation Board over the labor disputes o f
common ca rriers. We do not mean to imply that we approve of IAM's actions in thi s case; indee d, 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-7-

juris diction 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.