Pilkington v. United Airlines

United States Court of Appeals,

Eleventh Circuit.

No. 96-2539.

Arnold D. PILKINGTON, Rick Q. Dacosta, John P. Hlavacek, William
P. O'Brien, Brian N. Walker, Meryl Getline, Joseph Salomone,
Michael S. Custer, Leonard H. Gieschen, Plaintiffs-Appellants,

v.

UNITED AIRLINES, Air Line Pilots Association, International,
International and Air Line Pilots Association, Master Executive
Council for United Airlines, Defendants-Appellees.

May 22, 1997.

Appeal from the United States District Court for the Middle
District of Florida. (No. 92-1032-CIV-T-17B), Elizabeth A.
Kovachevich, Chief Judge.

Before COX, Circuit Judge, KRAVITCH, Senior Circuit Judge, and
STAGG*, Senior District Judge.

STAGG, Senior District Judge:

Plaintiffs/appellants are nine non-striking pilots for United

Airlines ("United"). Plaintiffs brought suit against United

Airlines and the Airline Pilots Association ("ALPA") and the ALPA

Master Executive Council ("MEC")1 based on post-strike harassment

of the non-striking pilots. The district court granted summary

judgment in favor of United and ALPA, ruling that plaintiffs' civil

Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18

U.S.C. § 1961, et seq., claims were not filed within the requisite

statute of limitations and that all of plaintiffs' state-law claims

were preempted by the Railway Labor Act ("RLA"), 45 U.S.C. § 151 et

*
Honorable Tom Stagg, Senior U.S. District Judge for the
Western District of Louisiana, sitting by designation.
1
Defendants ALPA and MEC are referred to collectively as
"ALPA." The MEC is the ALPA body that represents United pilots.
seq.

The plaintiffs appeal the grant of summary judgment on all of

their federal and state-law claims against United and ALPA. The

plaintiffs' RICO claims were not filed within the four-year statute

of limitations provided for civil RICO actions and the plaintiffs'

state-law claims are preempted by the RLA.

We affirm.

I. FACTS AND PROCEDURAL HISTORY

Prior to 1985, the pilots of United operated under a

collective bargaining agreement negotiated between United and ALPA.

On May 17, 1985, ALPA declared a strike against United that lasted

twenty-nine days. In anticipation of this strike, United recruited

"fleet qualified" pilots, i.e., pilots already experienced and

qualified to operate the aircraft then in United's fleet. These

pilots were hired as permanent employees to replace the striking

pilots. United ultimately hired 539 replacement pilots, including

eight of the nine plaintiffs in this case. Plaintiff, Joseph

Salomone, was already a pilot for United when the strike began, and

he continued to work for United during and after the strike. Each

fleet qualified pilot received a letter confirming that the pilot

was being hired as a permanent replacement for striking pilots and

that the job offer would remain valid even if a settlement were

reached between United and ALPA. The employment letters also

represented that due to the fleet qualified pilots' commitment

during the strike, the pilots would have the full support of

management in any difficulties they encountered during their

employment.
 The strike was settled on June 15, 1985, at which time ALPA

and United formed a new collective bargaining agreement (the "1985

Agreement") which governed the employment of all pilots employed by

United, including the plaintiffs. As part of the settlement, ALPA

and United executed a "Back-to-Work" agreement, setting forth the

terms under which striking pilots would return to their jobs. This

agreement contained a "no-reprisal" clause which provided in

pertinent part:

The Association and the Company agree that neither will engage
in or condone any activities which might constitute reprisals
or recriminations as a result of the ALPA strike.... ALPA
agrees not to level fines or take action against non-striking
pilots.

On April 3, 1987, United and ALPA executed a "Letter of

Agreement," wherein United agreed to retain the replacement fleet

qualified pilots on the condition that they be placed below the

returning fleet qualified pilots on the United-ALPA seniority list.

ALPA agreed not to challenge that placement. This agreement also

contained "no-reprisal" clauses in which ALPA agreed to take

"extensive active measures to eliminate the residual tension

between those pilots who struck and those who worked during the

strike." United further agreed "to take extensive measures to

restore a positive working relationship with all pilots."

The plaintiffs allege that harassment commenced with the

strike in May of 1985. Plaintiffs allege that they underwent

continuous, illegal harassment from ALPA pilots for working during

the strike and that the harassment continues to this date. The

harassment alleged includes, inter alia, physical threats,

vandalism, assault and battery, the theft and destruction of
personal property, ostracism by ALPA pilots at work and during

flights, hate mail, verbal insults, and ridicule.

Plaintiffs contend that United and ALPA have breached the

no-reprisal clauses of the aforementioned agreements by condoning

the harassment against the fleet qualified pilots. They claim that

United has failed to enforce the agreements against ALPA and that

ALPA has condoned and actually encouraged the harassment. United

initially attempted to protect the plaintiffs through various

protective measures and by making strong statements against the

harassment. It is alleged, however, that within a few years of the

strike, United determined that, in an effort to further labor

harmony, it was more beneficial for it to please ALPA than for it

to protect the plaintiffs.

On March 23, 1994, the plaintiffs filed their first amended

complaint, alleging five claims for relief based on the post-strike

harassment.2 United and ALPA filed separate motions for summary

judgment. On March 27, 1996, the district court granted the

summary judgment motions of both United and ALPA, dismissing the

RICO claim and holding that all of the plaintiffs' state-law claims

were preempted by the RLA.

Additionally, this court notes that the Tenth Circuit has

already decided a case very similar in many respects to the case

2
The five claims alleged in the first amended complaint are
(1) violation of RICO; (2) tortious interference with a
contract; (3) tortious interference with a business
relationship; (4) breach of contract; and (5) fraudulent
misrepresentation. Originally, the plaintiffs alleged a
violation of the duty of fair representation under the RLA. This
claim was dropped, and the RICO claim inserted, in the first
amended complaint.
sub judice. In Fry v. Airline Pilots Association International and

United Airlines, Inc., 88 F.3d 831 (10th Cir.1996), the court

addressed the issue of RLA preemption of many of the state-law

claims that are raised in the current controversy before this

court. The background and basic facts of Fry are virtually

identical to those in the present case. Although the plaintiffs in

Fry are different from the plaintiffs in this case, both sets of

plaintiffs were part of the same group of fleet qualified pilots

employed by United during the strike and allegedly harassed during

and after the strike.

II. STANDARD OF REVIEW

This court reviews the grant of summary judgment de novo and

must determine whether there is a genuine issue of material fact

and whether the moving party is entitled to judgement as a matter

of law. Batey v. Stone, 24 F.3d 1330, 1333 (11th Cir.1994).

III. DISCUSSION

A. Plaintiffs' RICO Claims

1. The Proper Accrual Period Of Civil RICO Claims

Civil RICO actions are subject to a four-year statute of

limitations. Bivens Gardens Office Bldg., Inc. v. Barnett Bank,

906 F.2d 1546, 1550 (11th Cir.1990), cert. denied, 500 U.S. 910,

111 S.Ct. 1695, 114 L.Ed.2d 89 (1991), citing Agency Holding Corp.

v. Malley-Duff & Assoc., 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d

121 (1987). The Supreme Court in Agency Holding, however,

expressly left open the question of when a civil RICO cause of

action begins to accrue. Bivens, 906 F.2d at 1550. In Bivens,

this court was called upon "to decide the appropriate accrual rule
to apply when the complaint alleges that, as the result of a

conspiracy to violate RICO and substantive violations of RICO, the

plaintiffs suffered several independent harms at the hands of the

defendants over a period of eight years." Id. at 1550. Adopting

the rule of "separate accrual," this court joined the Third Circuit

in Keystone Insurance Co. v. Houghton, 863 F.2d 1125 (3d Cir.1988),

in holding that when "a plaintiff [is] injured by one or more

predicate acts, a civil RICO cause of action for damages will not

accrue until the plaintiff knows, or should have known, of his

injury and that the injury is part of a pattern of racketeering

activity." Id. at 1554.

The plaintiffs in Bivens alleged three injuries: (1) the

wrongful takeover of Bivens Center, Inc.; (2) the mismanagement

and diversion of corporate assets; and (3) the wrongful sale of

the Bivens Gardens Hotel for less than its fair market value. Id.

at 1551. They alleged that these injuries were "continuing" and

"independent" so as to extend the accrual period for each RICO

claim. Id. at 1552. We held that the injuries were "separate and

independent" from the injuries flowing from the wrongful takeover

of the hotel. Id. at 1556. Thus, under the accrual rule announced

by this court in Bivens, a new RICO claim would begin to accrue

when the plaintiffs knew, or should have known, about a new and

independent injury and that the new and independent injury was the

result of a pattern of racketeering activity. See id.

In determining that these injuries were "separate and

independent" injuries, the Bivens court cited with approval the

language of the Second Circuit in Bankers Trust Co. v. Rhoades, 859
F.2d 1096, 1103 (2d Cir.1988), cert. denied, 490 U.S. 1007, 109

S.Ct. 1642, 104 L.Ed.2d 158 (1989), that "new and independent"

injuries would begin a new accrual period for the plaintiff's RICO

claims. Id. at 1552. Applying the rules set forth in Bivens to

the present case, we find that the district court was correct in

dismissing plaintiffs' RICO claims due to the running of the

statute of limitations.

For purposes of this analysis, the court will assume that

plaintiffs' RICO claims, first pleaded in their amended complaint

in March 23, 1994, were made retroactive to the date of their

original petition, July 24, 1992. The district court found that

the plaintiffs knew, or should have known, of their injury and that

it resulted from a pattern of racketeering activity by 1987, at the

latest. In 1986, plaintiff Arnold D. Pilkington and other pilots

formed an association known as the Fleet Qualified Pilots

Association ("FQPA"). Apparently, this organization was formed to

address and combat the continuing harassment that non-striking

United pilots faced from ALPA members. In July of 1987, Pilkington

and another pilot mailed letters to the fleet qualified pilots

asking for support of the FQPA. According to the district court,

these letters indicated that by July of 1987, the pilots (1)

believed that their mental distress and intolerable work situation

were caused by the alleged pattern of harassment by striking pilots

that had begun two years before; (2) believed ALPA and United were

responsible for the harassment; and (3) had consulted counsel with

respect to injuries suffered as a result of the harassment. These

letters, contained in the record, clearly establish that by the
period of July 1987 to December 1987, the fleet qualified pilots,

including the plaintiffs, had knowledge of their injuries and knew

that the injuries were caused by a pattern of harassment that had

begun as early as May of 1985. Thus, the plaintiffs' RICO claims

must have been filed by December 1991, at the latest, to avoid the

terminal effect of the statute of limitations. Plaintiffs, who

filed their RICO claims on July 24, 1992, did not file their RICO

claims timely.

Other facts in the record indicate that plaintiffs had

knowledge of their injuries and that the injuries resulted from the

pattern of harassment more than four years prior to July 1992. In

the original and amended complaints, plaintiffs allege that the

harassment began and became pervasive by the time the strike was

ending in late June of 1985. The allegations in the complaint make

it clear that the plaintiffs knew soon thereafter that the

harassment would continue, that it was part of a pattern, that it

was affecting their job performance, and that it was causing mental

and emotional suffering. The plaintiffs allege that this ongoing

pattern of harassment began in 1985. Thus, soon thereafter the

plaintiffs either knew, or should have known, that they were

suffering injuries and that the injuries were the result of a

pattern of harassment. Thus, at the latest, the plaintiffs should

have known of their injuries by July of 1987. At the earliest,

plaintiff's should have known of their injuries as July of 1986,

one year after the continuous harassment began. Plaintiffs did not

file suit until six years after July 1986 and five years after July
of 1987.3

Plaintiffs contend, however, that they did not know, or could

not have known, that they had been injured in their business or

property until 1990 when plaintiff Leonard Gieschen ("Gieschen")

elected to take an unpaid personal leave of absence from which he

never returned. It is alleged that Gieschen left his employment

with United due to the toll that the harassment had taken on his

job performance as well as his mental and emotional well being.

The damages alleged by Gieschen, however, are not mentioned in

either complaint filed by the plaintiffs. This issue is raised

before this court in the briefs filed by the plaintiffs and the

supplemental brief filed by Gieschen. In his brief, Gieschen

alleges that severe depression and mental and emotional problems

caused his leave of absence from United in 1990.

To the extent that Gieschen, or any other plaintiff, seeks to

recover under RICO for personal injury, or pecuniary losses

resulting from personal injury, this claim is not cognizable under

RICO. See Grogan v. Platt, 835 F.2d 844 (11th Cir.), cert. denied,

488 U.S. 981, 109 S.Ct. 531, 102 L.Ed.2d 562 (1988) (Kravitch, J.).

In Grogan we stated: "[i]n our view, the ordinary meaning of the

phrase "injured in his business or property' excludes personal

injuries, including the pecuniary losses therefrom." Id. at 847.

Thus, to the extent that the plaintiffs claim that the emotional

3
Of interest to the court is the fact that on October 13,
1989, seven of the nine plaintiffs in this action filed suit in
the Northern District of Illinois (Pilkington v. Air Line Pilots
Assoc., International, No. 89 C 7754 (N.D.Ill.1989)) against ALPA
and United alleging, inter alia, that they had undergone a four
year campaign of harassment. The suit was voluntarily dismissed
by the plaintiffs soon after its filing.
and mental distress suffered by the harassment caused them an

"injur[y] in [their] business or property," this claim is

unavailing. The plaintiffs' reliance on this type of injury to

avoid the statute of limitations is also misplaced. An injury not

cognizable under RICO will not suffice as an injury sufficient to

begin the act's accrual period.

Moreover, Gieschen knew, or should have known, of his

injury—injury cognizable under RICO, such as injury in his business

or property, other than personal injury—many years prior to 1990.

The first amended complaint alleges that Gieschen was first

harassed on August 20, 1985. He was then harassed in July of 1986,

and again in August of 1987. Essentially, Gieschen was undergoing

the same pattern of harassment alleged by all plaintiffs that began

soon after the strike ended in 1985. Therefore, Gieschen knew or

should have known of his injury and that the injury was the result

of a pattern of racketeering activity as early as July 1986 or as

late as August 1987. Suit was filed in July of 1992, more than

four years after either of these dates.

2. Separate Accrual Rule

Plaintiffs claim that under the separate accrual rule adopted

in Bivens, each time the plaintiffs suffered injury from the

harassment a new RICO cause of action accrued. The harassment

suffered by the plaintiffs allegedly continued well after this suit

was filed in 1992. Thus, plaintiffs contend that new RICO causes

of action were accruing even after this suit was filed. Plaintiffs

argue that each act of harassment accounts for a new and

independent injury as contemplated by Bivens.
 In Bivens, we analyzed the Second Circuit's use of the terms

"new and independent" in Bankers Trust. We held that the

mismanagement and wrongful diversion of corporate assets between

1975 and 1981, and the wrongful sale of the partnership's major

asset, the Bivens Gardens Hotel, in 1981, were "new and

independent" injuries because they were not injuries that naturally

flowed from the wrongful takeover of the corporation, Bivens

Center, Inc., in 1975. See Bivens, 906 F.2d at 1551. The "new and

independent" injuries involved independent breaches of duties owed

by the defendants as corporate directors and officers. Id.

Likewise, other Circuits have used the "new and independent"

language when analyzing their separate accrual rules. These

Circuits help shed light on how this term is interpreted. The

Ninth Circuit has provided three rulings for guidance. In In re

Multidistrict Vehicle Air Pollution, 591 F.2d 68 (9th Cir.), cert.

denied, 444 U.S. 900, 100 S.Ct. 210, 62 L.Ed.2d 136 (1979), the

plaintiff accused car manufacturers of violating the Clayton Act

because they all agreed not to purchase the plaintiff's engine

emission control devices. By 1964, all manufacturers had refused

to buy the plaintiff's device. The plaintiff claimed it suffered

a new injury because another company refused to use its device in

1965. The court held that the plaintiff had been injured in 1964

when the car manufacturers' "irrevocable, immutable, permanent, and

final" decision was made. Id. at 72. A subsequent refusal did not

create a new injury. Id.

In Pace Industries, Inc. v. Three Phoenix Co., 813 F.2d 234

(9th Cir.1987), the court held that "two elements characterize an
overt act which will restart the statute of limitations: 1) It

must be a new and independent act that is not merely a

reaffirmation of a previous act; and 2) It must inflict new and

accumulating injury on the plaintiff." Id. at 238 (emphasis

added).

In Grimmett v. Brown, 75 F.3d 506 (9th Cir.1996), the former

wife and trustee of her ex-husband's bankruptcy estate, Joanne

Siragusa, brought suit under RICO to recover from an attorney,

Patricia Brown. Brown allegedly masterminded a fraudulent scheme

to conceal the ex-husband's interest in his medical practice for

purposes of defeating the former wife's community property interest

in the practice. The court found that Siragusa's primary injury

was the loss of her interest in her ex-husband's medical practice.

Such injury was perfected upon the filing of the bankruptcy

petition by her ex-husband. See id. at 513-14. Siragusa alleged

four post-filing injuries that she argued were new: (1) mail fraud

by submitting false documents to the Bankruptcy Court; (2)

obstruction of justice by concealing documents and testifying

falsely in the proceeding; (3) defrauding a doctor of the

practice; and (4) defrauding the practice's junior owners by not

disclosing the practice's full liability to Siragusa. Id. at 514.

The court found none of these injuries to be new and independent.

See id. The injuries were all part of the same bankruptcy scheme

and all lead to the loss of Siragusa's interest in the practice;

neither the acts nor the injuries were new. See id.

In Bingham v. Zolt, 66 F.3d 553, 560 (2d Cir.1995), cert.

denied, --- U.S. ----, 116 S.Ct. 1418, 134 L.Ed.2d 543 (1996), the
court held that additional financial losses that resulted from a

company's decision to use defective equipment were not independent

of the original actionable injury of receiving defective generators

in derogation of its contract and warranty rights. A mere

recharacterization or continuation of damages into a later period

will not serve to extend the statute of limitations for a RICO

action. Glessner v. Kenny, 952 F.2d 702, 708 (3d Cir.1991).

Likewise, the Eighth and the Tenth Circuits use the "new and

independent" language in their analysis of the separate accrual

rule. See Association of Commonwealth Claimants v. Moylan, 71 F.3d

1398 (8th Cir.1995); Bath v. Bushkin, 913 F.2d 817 (10th

Cir.1990).

In the case sub judice, the district court ruled that the

injuries suffered by the plaintiffs were not new and independent

injuries, but rather, a single, continuous course of

injury—specifically, ongoing emotional and physical distress

designed to force the plaintiffs to either leave their employment

or to lower job performance. We agree. The injury suffered by the

plaintiffs has been a continuation of the initial injury that

resulted from the harassment. With each act of harassment the

adverse impact on the plaintiffs' job performance may accumulate,

however, the injury is not new and independent. The injury

allegedly suffered by the plaintiffs after July of 1988 was not

unfamiliar, strange, or different. It was the same injury that has

been accumulating since 1986. Stated another way, the injuries

allegedly suffered after suit was filed in 1992 are merely

recharacterizations and continuations of the same injuries
previously alleged to have been suffered since 1986. See Glessner,

952 F.2d at 708.

3. Last Predicate Act Rule

Plaintiffs also contend that the statute of limitations has

not run because under the "last predicate act" rule as applied in

Keystone, they are entitled to recover for damages incurred after

1992, as long as the last predicate act committed by the defendants

occurred within four years of the time the plaintiffs filed suit.

In Bivens, we expressly rejected the application of the last

predicate act rule under these circumstances. As we explained in

Bivens, in Keystone, the plaintiff relied in part on predicate acts

that caused harm to others in order to establish the pattern of

racketeering activity. In Bivens, and in the present case, the

plaintiffs allege acts that caused harm to them. We find it

appropriate to analyze when the plaintiffs knew or should have

known that their injuries were the result of a pattern of

racketeering when determining the date their civil RICO cause of

action accrued. See Bivens, 906 F.2d at 1554. Thus, the last

predicate act rule provides the plaintiffs no relief from the

statute of limitations in this case.

B. Railway Labor Act Preemption

The district court held that all of the plaintiffs' state-law

claims were preempted by the Railway Labor Act ("RLA"), 45 U.S.C.

§ 151 et seq., because resolution of the claims necessarily relied

upon interpretation of the collective bargaining agreements

("CBAs") between United and ALPA. We agree.

Most of the provisions of the RLA apply to labor relations in
the airline industry. Pyles v. United Air Lines, Inc., 79 F.3d

1046, 1049 (11th Cir.1996). The RLA has established a framework

for the resolution of disputes between air carriers and their

employees that "grow[ ] out of grievances, or out of the

interpretation or application of agreements concerning rates of

pay, rules, or working conditions." Id., citing 45 U.S.C. § 184.

The distinguishing feature of such a dispute, termed a "minor

dispute," is that "the dispute may be conclusively resolved by

interpreting the existing [collective bargaining] agreement." Id.

(citations omitted). Congress intended that these "minor disputes"

be resolved through the grievance procedures of the RLA rather than

in federal court. Id. at 1050. "Therefore, it has long been the

rule that when the resolution of a state-law claim ... requires an

interpretation of the CBA, the claim is preempted and must be

submitted to arbitration before a system board of adjustment." Id.

The Supreme Court has adopted the preemption standard applied

in cases under the Labor Management Relations Act ("LMRA").

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 263, 114 S.Ct.

2239, 2249, 129 L.Ed.2d 203 (1994); see Lingle v. Norge Div. of

Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410

(1988). The LMRA standard narrows the otherwise broad preemptive

scope of the RLA by precluding preemption of state-law claims that

enforce rights independent of the CBA. Pyles, 79 F.3d at 1050,

citing Hawaiian Airlines, 512 U.S. at 256-62, 114 S.Ct. at 2246-48.

The fact that reference to a CBA may be required, particularly

where factual issues are involved, is insufficient of itself to

preempt an independent state-law claim; only where interpretation
of a CBA is required will the claim be preempted. Pyles, 79 F.3d

at 1050 (citations omitted).

In Pyles, we found that the breach of contract claim—involving

the breach of a letter of agreement similar to the one entered into

here between United and ALPA—between United and ALPA in that case

was preempted by the RLA. See id. at 1050. We found that the

letter agreement was "by its terms, a modification of the CBA

between United and its employees." Id. Thus, to interpret the

letter was to interpret a portion of the CBA. See id. Because the

CBA was "the only potential source of any rights [the plaintiff]

may have to employment with United, one must interpret the CBA to

determine what those rights are." Id.

Likewise, in Lingle v. Norge Div. of Magic Chef, 486 U.S. 399,

407, 108 S.Ct. 1877, 1881, 100 L.Ed.2d 410 (1988), the Court stated

"if the resolution of a state-law claim depends upon the meaning of

a collective bargaining agreement, the application of state law

(which might lead to inconsistent results since there could be as

many state-law principles as there are States) is pre-empted and

federal labor-law principles—necessarily uniform throughout the

Nation—must be employed to resolve the dispute." In Farmer v.

United Brotherhood of C. & J. of America, Local 25, 430 U.S. 290,

300, 97 S.Ct. 1056, 1063, 51 L.Ed.2d 338 (1977), the Court

established a balancing test, requiring the courts to make "a

balanced inquiry into such factors as the nature of the federal and

state interests in regulation and the potential for interference

with federal regulation." In Farmer, the Court held that federal

labor law did not preempt a union member's suit against the union
for intentional infliction of emotional distress. Such a claim,

however, is not present in the case sub judice.

1. Claims Against United

Plaintiffs' claims against United are for breach of contract

and fraudulent misrepresentation. Plaintiffs allege that by way of

the letters of employment sent to them from United, United promised

to protect the plaintiffs from the harassment they received after

the strike in 1985. Additionally, plaintiffs attach to their

original complaint the "Back-to-Work" agreement and "Letter of

Agreement" between United and ALPA as evidence of United's promise

to protect its employees.

In plaintiffs' original complaint at paragraph 50, they allege

that the ALPA owes the plaintiffs, who are all part of the

bargaining unit at United, a duty of fair representation. 4 Thus,

the plaintiffs, in effect, allege that they are, or were, members

of ALPA. Further evidence of the plaintiffs' union membership

includes the fact that the plaintiffs are all United pilots and

that ALPA is the bargaining unit for all pilots employed by United.

Resolution of whether United breached a promise made to plaintiffs

and the ALPA to protect the plaintiffs from harassment necessarily

depends on the interpretation of the CBAs for the following

reasons.

United's duty to confront the post-strike harassment on the

plaintiffs' behalf comes from the language of both the

4
In the plaintiffs' original complaint, they stated a claim
for violation of a duty of fair representation under the RLA.
Subsequently, plaintiffs dropped this claim in their amended
complaint filed on March 23, 1994.
"Back-to-Work" agreement and "Letter of Agreement" which are both

part of the CBA. The "Back-to-Work" agreement was collectively

bargained between ALPA and United. The agreement also states that

it is subject to the 1985 collective bargaining agreement already

in place at the time the "Back-to-Work" agreement was completed.

The "Letter of Agreement" was also collectively bargained and in

its first paragraph makes reference to the fact that it is entered

into in accordance with the provisions of the RLA. See Pyles, 79

F.3d at 1050 (where the identical language contained in a letter of

agreement was one of the factors used by the court in determining

that a claim for breach of contract was preempted by the RLA).

Thus, these agreements are part of the CBA, and any claims against

United for breaches of the duties or representations contained

therein necessarily require interpretation of the CBAs and are,

therefore, preempted by the RLA.

Moreover, the ability of United to confront and discipline the

harassment by ALPA members, or install preventative measures

against the harassment, depends on the authority granted to United

through the CBAs. United's ability to affect the employment

situation of ALPA members is governed exclusively through the CBAs.

Thus, any alleged breach of contract or fraudulent

misrepresentation claim made against United is preempted by the RLA

on the basis that resolution of such claims requires the

interpretation of the CBA of 1985, the "Back-to-Work" agreement and

the "Letter of Agreement" entered into by United and ALPA on behalf

of United employees.

2. Claims Against ALPA
 Plaintiffs' claims against ALPA include tortious interference

with a contract and tortious interference with a business

relationship. To prevail on a claim of tortious interference with

a business relationship under Florida law, a plaintiff must

establish four elements: (1) the existence of a business

relationship, not necessarily evidenced by an enforceable contract;

(2) knowledge of the relationship on the part of the defendant;

(3) an intentional and unjustified interference with the

relationship by the defendant; and (4) damage to the plaintiff as

a result of the breach of the relationship. T. Harris Young &

Assoc. v. Marquette Electronics, 931 F.2d 816, 825-26 (11th Cir.),

cert. denied, 502 U.S. 1013, 112 S.Ct. 658, 116 L.Ed.2d 749 (1991).

Tortious interference with a contract and tortious interference

with a business relationship are basically the same cause of

action. Smith v. Ocean State Bank, 335 So.2d 641, 642 (Fla. 1st

Dist.Ct.App.1976). The only material difference appears to be that

in one there is a contract and in the other there is only a

business relationship. Id.

The plaintiffs contend that ALPA's actions in collectively

bargaining with United and United's interest in appeasing the union

caused United to forsake the plaintiffs by violating the agreement

alleged to have been entered into between the plaintiffs and

United. The court also reads the amended complaint to include an

allegation by the plaintiffs that the harassment caused

interference with the relationship formed between the plaintiffs

and United.

In its CBAs with United, ALPA agreed not to engage in, and in
fact to deter, the harassment that allegedly caused the breach of

United's contract with plaintiffs and injured United's relationship

with plaintiffs. The allegations made against ALPA are also very

tightly intertwined with the alleged duty that United had to

protect the plaintiffs. Indeed, assessment of ALPA's actions and

the duty of United to protect against these actions can only be

done by interpreting the CBAs. It may be found that some of the

conduct engaged in by the ALPA is allowed under the CBAs. This

will not be known, however, until the arbitration steps provided in

the CBAs are undertaken.

Application of the Farmer factors also impels RLA preemption.

First, we assess the federal interests involved in this case. The

present suit involves three parties, all of whom are governed in

their employment relationships by the aforementioned CBAs.

Additionally, this is a suit by union members against their union

and their employer. Thus, the federal concerns regarding the

stability of labor relations and the uniformity of handling labor

disputes are strong. On the other hand, the state does have an

interest in protecting its citizens against conduct that is found

to be "outrageous." The Court in Farmer found that the claim of

intentional infliction of emotional distress—encompassing a certain

type of outrageous conduct—avoided federal preemption. The claim

pursued in Farmer, however, is not the nature of the claims pursued

in this case. Lastly, we must consider to what extent avoiding

preemption will interfere with the federal regulatory scheme

designed to control labor relations. The determinative fact is

that the CBAs control the relationships and employment activities
of this employment triangle. All parties—either by their

membership in the ALPA, their status as employees of United or as

the employer—are controlled by the CBAs regarding the issues of

labor relations. Entertaining state-law remedies in federal court

under these circumstances would be to by-pass the CBAs agreed to by

all parties to this litigation.

Persuasive on this issue, and supportive of this court's

ruling, is Fry v. Airline Pilots Assoc., International, 88 F.3d 831

(10th Cir.1996). The suit brought by Fry and other plaintiffs,

also fleet qualified pilots, was similar, if not identical in many

ways, to the case before this court. In Fry, the plaintiffs'

state-law claims against United were (1) intentional infliction of

emotional distress; (2) conspiracy to inflict emotional distress;

(3) breach of contract; and (4) false representation (this cause

of action voluntarily dismissed). Id. at 834 n. 3 (emphasis

added). The claim against the ALPA was tortious interference with

a contract. Id. (emphasis added). At issue in Fry was whether the

RLA preempted these state-law claims. The court noted that

"plaintiffs often [attempt] to avoid federal jurisdiction under §

301 by framing their complaints in terms of such diverse state law

theories as wrongful discharge, intentional infliction of emotional

distress, conspiracy, and misrepresentation." Id. at 836

(citations omitted). The court held that "[a]fter careful review

of the record, we conclude that the district court properly

determined that plaintiffs' state law claims, based on the theory

that United reneged on its responsibility to protect the

plaintiffs, cannot be understood without reference to the various
CBAs." Id. at 836. The court further stated "[i]n this case ...

the alleged outrageous conduct is inextricably bound up with

agreements and promises made to protect, and then actions allegedly

forsaking, the plaintiffs." Id. With respect to the claim for

tortious interference with a contract against ALPA, the court

determined "[w]hether ALPA caused United to breach its contract to

protect the plaintiffs cannot be determined without examining and

comparing the promised protections afforded by United and the

alleged withdrawal of those protections as decided in subsequent

negotiating sessions." Id. at 838-39. The court did not, however,

find the plaintiffs' emotional distress claims preempted. See id.

at 841.

The decision by the Tenth Circuit is not binding authority for

this court. It is, however, persuasive authority that provides

valuable insight. The background and basic facts of Fry are the

same as in this case. Fry covers the same strike by ALPA against

United, the same CBAs, the same post-strike harassment, and the

same post-strike actions taken by United and ALPA. The two

material differences between Fry and this case are that the

plaintiffs in Fry were different pilots than in this case and some

of the claims alleged in the Fry complaint were different than

those alleged here. However, all of the state-law causes of action

alleged in the case sub judice are covered in Fry. Indeed, the

Tenth Circuit's ruling on RLA preemption under virtually the same

set of facts as the present case is very instructive.

The plaintiffs argue that their claims should fall under the

Farmer exception to the preemption doctrine. Farmer held that an
otherwise preempted claim could be prosecuted in state or federal

court if the conduct alleged was sufficiently outrageous. In

Farmer, the cause of action alleged was intentional infliction of

emotional distress. No such claim is alleged in the present case.

All of plaintiffs' claims in this case sound in contract or

quasi-contract. Merely because the plaintiffs allege outrageous

conduct as the means by which their contracts were breached does

not bring this case under the Farmer exception. Additionally, as

discussed above, application of the Farmer balancing test calls for

RLA preemption in this case.

Lastly, plaintiffs contend that Belknap, Inc. v. Hale, 463

U.S. 491, 103 S.Ct. 3172, 77 L.Ed.2d 798 (1983), applies in this

case to avoid federal preemption. In Belknap, the Court held that

non-union employees' breach of contract claims should not be

preempted. Id. at 500, 103 S.Ct. at 3178. The Court reached this

holding because it determined that innocent third parties, that is,

employees of the employer but not members of the union and not

implicated in any CBAs, should not be deprived of their normal

state-law remedies. See id. "It is one thing to hold that the

federal law intended to leave the employer and the union free to

use their economic weapons against one another, but it is quite

another to hold that either the employer or the union is free to

injure innocent third parties without regard to the normal rules of

law governing those relationships." Id. Thus, Belknap is

applicable in a situation where a non-union employee does not have

at his disposal the protections of the union and the CBAs, but

rather has only his normal state-law remedies against the union or
his employer.

As mentioned above, the plaintiffs are or were ALPA members,

as alleged in paragraph 50 of the original complaint. They are

pilots for United, and ALPA is the sole bargaining unit for the

United pilots. Additionally, we agree with the district court in

its ruling that once the striking workers returned to work under

the newly negotiated CBA, the rights and duties of all parties

involved, including the plaintiffs as United employees, were

governed by the newly formed CBAs. Therefore, Belknap is

inapposite. Likewise, the Tenth Circuit in Fry reached the same

holding regarding the applicability of Belknap. See Fry, 88 F.3d

at 838 & n. 9.

IV. CONCLUSION

The plaintiffs' civil RICO action was properly dismissed by

the district court because the statute of limitations had run. The

district court properly found that all of the plaintiffs' state-law

claims were preempted by the RLA because all of these claims

necessarily require interpretation of the CBAs between United and

ALPA. Therefore, we affirm the district court's granting of

summary judgment in favor of United and ALPA.

AFFIRMED.