                       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.
       The Independent Federation of Flight Attendants1 appeals the district court's2
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 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 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




      1
       Appellants are the Independent Federation of Flight Attendants, five individual
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.
      2
        The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.

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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 contract3. IFFA claimed that IAM's use of the IFFA logo and


      3
      IFFA also named Cooper as a defendant, alleging that she had violated the
Labor Management Reporting and Disclosure Act, 29 U.S.C. § 501(b). The state law

                                         -3-
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).




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.

                                          -4-
      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.




                                          -5-
       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

                                          -6-
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.




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