                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 98-3229
                                      ___________

Steven L. Jenisio; Candace Jenisio,      *
                                         *
             Appellants,                 *
                                         * Appeal from the United States
       v.                                * District Court for the
                                         * District of Minnesota.
Ozark Airlines, Inc. Retirement Plan for *
Agent and Clerical Employees;            *
Retirement Plan for Machinists of Trans *
World Airlines; Trans World Airlines, *
Inc., a Delaware corporation,            *
                                         *
             Appellees.                  *
                                   ___________

                            Submitted: June 14, 1999
                                Filed: August 13, 1999
                                 ___________

Before HANSEN and MAGILL, Circuit Judges, and JONES,* District Judge.
                           ___________

MAGILL, Circuit Judge.

     Steven and Candace Jenisio brought an action under the Employment Retirement
Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 - 1461, seeking benefits



      *
        The Honorable John B. Jones, Senior United States District Judge for the
District of South Dakota, sitting by designation.
under two pension plans. The district court1 dismissed the action, concluding that the
Railway Labor Act (RLA), 45 U.S.C. § 184, divested the court of subject matter
jurisdiction because the Jenisios' claims were subject to the RLA's mandatory
arbitration provision. We affirm.

                                          I.

       Steven Jenisio was hired by Ozark Airlines, Inc. (Ozark) in December 1971 and
was continuously employed by Ozark until it merged with Trans World Airlines, Inc.
(TWA) in 1986. Mr. Jenisio continued to work for TWA until he suffered a heart
attack in 1989.

       Prior to the Ozark-TWA merger Mr. Jenisio participated in the Ozark Airlines,
Inc. Retirement Plan for Agent and Clerical Employees (Ozark Plan). The labor
relationship between Ozark and the International Association of Machinists and
Aerospace Workers (IAM), the union to which Mr. Jenisio belonged, was governed by
the Ozark-IAM collective bargaining agreement (Ozark-IAM CBA). When the
Ozark-TWA merger commenced, the Ozark Plan was terminated. At that time Mr.
Jenisio was completely vested in the Ozark Plan. After the merger Mr. Jenisio became
a participant in the Retirement Plan for Machinists of Trans World Airlines, Inc. (TWA
Plan). The labor relationship between TWA and IAM was governed by the TWA-IAM
collective bargaining agreement (TWA-IAM CBA). Candace Jenisio, Mr. Jenisio's
wife, is a beneficiary under both the Ozark Plan and the TWA Plan.

      In February 1991 Mr. Jenisio applied for long-term disability benefits under the
TWA Plan. He was awarded benefits under the TWA Plan, but less than the amount
he requested. Mr. Jenisio also applied for benefits under the Ozark Plan. This


      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.

                                         -2-
application was denied.

       The Jenisios brought this action under ERISA against the Ozark Plan, the TWA
Plan, TWA, (collectively, Appellees) and John Hancock Mutual Insurance Company,2
seeking to (1) increase the benefits award under the TWA Plan and (2) obtain benefits
under the Ozark Plan. Appellees filed a motion to dismiss for lack of subject matter
jurisdiction, arguing that the claims were subject to mandatory binding arbitration under
the RLA.3 The district court agreed, concluding that the RLA divested it of subject
matter jurisdiction over the Jenisios' complaint because each of their claims was subject
to the RLA's mandatory arbitration provision. The Jenisios timely appealed.4

                                             II.

     We review the question of subject matter jurisdiction de novo. See Clarinda
Home Health v. Shalala, 100 F.3d 526, 528 (8th Cir. 1996).

      The RLA requires air carriers and unions to establish a system board of
adjustment (the Board) to resolve all "disputes . . . growing out of . . . the interpretation
or application of agreements concerning rates of pay, rules, or working conditions."

       2
        John Hancock Mutual Insurance Company was dismissed by stipulation of the
parties.
       3
        We reject the argument that the district court erred in failing to convert the
motion to dismiss into a motion for summary judgment when it considered the text of
the Plans and the CBAs. A district court may consider documents on a motion to
dismiss where, as here, the plaintiffs' claims are based solely on the interpretation of
the documents and the parties do not dispute the actual contents of the documents. See
Silver v. H&R Block, Inc., 105 F.3d 394, 397 (8th Cir. 1997).
       4
       Mr. Jenisio died on October 21, 1998, while this appeal was pending. This
claim is now for Mrs. Jenisio's survivor's benefits, though the issue on appeal--the
applicability of the RLA's arbitration requirement--is unaffected.

                                            -3-
45 U.S.C. § 184. These disputes, which are commonly referred to as "minor disputes,"
"must be resolved only through the RLA mechanisms, including the carrier's internal
dispute-resolution processes and [the Board] established by the employer and the
unions." Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 253 (1994). The Board has
mandatory, exclusive, and comprehensive jurisdiction over minor disputes, and the
remedies provided by the Board are the "complete and final means" for settling minor
disputes. Brotherhood of Locomotive Eng'rs v. Louisville & Nashville R.R., 373 U.S.
33, 39 (1963).

       The RLA's arbitration requirement applies to pension disputes such as those
presented here if the pension plan is (1) itself a CBA or (2) maintained pursuant to a
CBA. See Hawaiian Airlines, 512 U.S. at 256 (holding disputes "grounded in the
CBA" are subject to arbitration under RLA); Air Line Pilots Ass'n Int'l v. Delta Air
Lines, Inc., 863 F.2d 87, 93 (D.C. Cir. 1988) (holding RLA's arbitration requirement
applies where pension plan "maintained pursuant to a [CBA]" (quotation marks
omitted)).5 We have said that a party shoulders a "relatively light burden" in
establishing exclusive arbitral jurisdiction under the RLA. Schiltz v. Burlington
N.R.R., 115 F.3d 1407, 1414 (8th Cir. 1997). In fact, there is a presumption that
disputes are minor and thus arbitrable. See id. (holding that if doubts arise as to type
of dispute at issue, court should construe dispute as minor); Air Line Pilots, 863 F.2d
at 93 (holding that in RLA case doubts about arbitrability of issues should be resolved
in favor of coverage).




      5
       ERISA, which was enacted after the RLA, does not affect our analysis of the
RLA's mandatory arbitration provision. See Bowe v. Northwest Airlines, Inc., 974
F.2d 101, 103 (8th Cir. 1992) ("ERISA was not intended to, nor did it, preempt the
mandatory arbitration provision of the [RLA].").

                                          -4-
                                 A. The Ozark Plan

        Mrs. Jenisio argues that the claim with respect to the Ozark Plan is not subject
to the RLA's arbitration requirement because the Ozark Plan was not collectively
bargained for and, thus, is not a CBA. However, the Ozark Plan need not be a CBA
itself; if it was maintained pursuant to a CBA it is subject to the RLA's arbitration
requirement. See, e.g., id. at 95; Printing Specialties & Paper Prods. Union Local 680
v. Nabisco Brands, Inc., 833 F.2d 102, 105 (7th Cir. 1987) .

       A pension plan is maintained pursuant to a CBA when it is incorporated by
reference in that CBA. See Air Line Pilots, 863 F.2d at 94. However, "mere
mentioning" of the pension plan in the CBA does not constitute incorporation by
reference. Id. Whether the Ozark Plan was maintained pursuant to the Ozark-IAM
CBA turns on whether the references to the Ozark Plan in the CBA effectively
incorporate the Ozark Plan or merely mention it.

        The Ozark-IAM CBA does more than merely mention the Ozark Plan. Rather,
it sets forth material amendments to and elements of the Ozark Plan: how benefits are
calculated, the size of the annual benefit, the age an employee must reach to obtain his
benefits, and provisions for early retirement, among others. See Ozark-IAM CBA Art.
18. Including such fundamental components of the Ozark Plan in the Ozark-IAM CBA
demonstrates a clear relationship between the Plan and the CBA and supports the
conclusion that the Plan was incorporated by reference in the CBA. See Printing
Specialties, 833 F.2d at 105.

       Not only does the Ozark-IAM CBA set forth material components of the Ozark
Plan, the Ozark Plan itself references the Ozark-IAM CBA. The Ozark Plan defines
the term "employee" as "any Agent or Clerical employee employed by the Company
who is a member of the bargaining unit covered by the collective bargaining agreement
between the Company and [IAM]." Ozark Plan § 1.7. While such a reference may not

                                          -5-
itself be enough to demonstrate that the Ozark Plan was maintained pursuant to the
Ozark-IAM CBA, when considered in conjunction with the fundamental changes to the
Plan set forth in the CBA, it further supports the conclusion that the Ozark Plan was to
be interpreted with reference to the Ozark-IAM CBA.

       Further, the language in the Ozark-IAM CBA used to amend the Ozark Plan
indicates that Ozark and IAM bargained for the amendments to the Plan, if not for the
Plan in its entirety. See Ozark-IAM CBA Art. 18 ("WHEREAS, the Company and
Union desire to amend, for the employees covered by this Agreement, the Company's
General Pension Plan."). This is persuasive evidence that the Ozark Plan was
maintained pursuant to the Ozark-IAM CBA. See Air Line Pilots, 863 F.2d at 94-95
(noting fact that parties negotiated and bargained for pension plan terms supports
finding that plan was incorporated by reference in CBA); Printing Specialties, 833 F.2d
at 105 (same).

       Given these facts, we are convinced that the Ozark Plan was incorporated by
reference in the Ozark-IAM CBA and, thus, that the Ozark Plan was maintained
pursuant to the CBA. Because the claim with respect to the Ozark Plan is a minor
dispute subject to the RLA's arbitration provisions, the district court correctly
concluded that it lacked subject matter jurisdiction over this claim.

                                 B. The TWA Plan

       Mrs. Jenisio acknowledges that the claim with respect to the TWA Plan is a
minor dispute. Nonetheless, she argues that this claim is not subject to the RLA's
arbitration requirement because the TWA-IAM CBA exempts disputes related to the
TWA Plan from this requirement.

       While two other circuits have indicated that parties may exempt pension plans
from the RLA's arbitration requirement via contract, we have held that parties to a CBA

                                          -6-
may not circumvent the RLA's arbitration requirement (and thereby vest subject matter
jurisdiction in the district court) by contractual agreement. Compare Bowe, 974 F.2d
at 103-04 ("Parties to an agreement cannot create federal subject matter jurisdiction by
consent.") with Air Line Pilots, 863 F.2d at 91 (holding RLA's arbitration requirement
is matter of contract; parties may in CBA exempt pension plan from this requirement),
and Bonin v. American Airlines, Inc., 621 F.2d 635, 639 (5th Cir. 1980) (same).
Because the claim with respect to the TWA Plan is a minor dispute, the district court
correctly determined that it lacked subject matter jurisdiction over this claim.

                                          III.

      Accordingly, we AFFIRM the district court's dismissal for lack of subject
matter jurisdiction.

      A true copy.

             Attest:

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




                                          -7-
