Alaska Airlines v. Judy Schurke

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALASKA AIRLINES INC., an Alaska No. 13-35574

corporation,

Plaintiff-Appellant, D.C. No.

2:11-cv-00616-

v. JLR

JUDY SCHURKE, in her official

capacity as Director of the State of OPINION

Washington Department of Labor

and Industries; ELIZABETH SMITH, in

her official capacity as Employment

Standards Program Manager of the

State of Washington Department of

Labor and Industries,

Defendants-Appellees,

ASSOCIATION OF FLIGHT

ATTENDANTS - COMMUNICATION

WORKERS OF AMERICA, AFL-CIO,

Intervenor-Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Washington

James L. Robart, Senior District Judge, Presiding

Argued and Submitted En Banc September 19, 2017

San Francisco, California

2 ALASKA AIRLINES V. SCHURKE

Filed August 1, 2018

Before: Sidney R. Thomas, Chief Judge, and M. Margaret

McKeown, Richard A. Paez,* Marsha S. Berzon, Richard

C. Tallman, Consuelo M. Callahan, Carlos T. Bea, Milan

D. Smith, Jr., Sandra S. Ikuta, Jacqueline H. Nguyen and

Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Berzon;

Dissent by Judge Ikuta

SUMMARY**

Labor Law

Affirming the district court’s summary judgment in favor

of the defendants, the en banc court held that the Railway

Labor Act did not preempt a worker’s claim premised on a

state law right to reschedule vacation leave for family

medical purposes, when the worker’s underlying right to

vacation leave was covered by a collective bargaining

agreement.

*

This case was submitted to a panel that included Judge Kozinski.

Following Judge Kozinski’s retirement, Judge Paez was drawn by lot to

replace him. See Ninth Cir. Gen. Order 3.2.h. Judge Paez has read the

briefs, reviewed the record, and listened to oral argument.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ALASKA AIRLINES V. SCHURKE 3

The en banc court held that the RLA did not preempt the

worker’s claim because the claim neither arose entirely from

nor required construction of the CBA; that the CBA must be

consulted to confirm the existence of accrued vacation days

was not sufficient to extinguish the worker’s independent

state law right to use the accrued time to care for a sick child.

Dissenting, Judge Ikuta, joined by Judges Tallman,

Callahan, Bea, and M. Smith, wrote that resolution of the

state law claim required interpretation or application of the

CBA, and the claim therefore constituted a “minor dispute”

that must be resolved through the RLA’s mandatory arbitral

mechanism.

COUNSEL

Mark A. Hutcheson (argued) and Rebecca Francis, Davis

Wright Tremaine LLP, Seattle, Washington, for Plaintiff-

Appellant.

Peter B. Gonick (argued), Deputy Solicitor General, Olympia,

Washington; James P. Mills, Assistant Attorney General;

Robert W. Ferguson, Attorney General; Office of the

Attorney General, Tacoma, Washington; for Defendants-

Appellees.

Kathleen Phair Barnard (argued), Schwerin Campbell

Barnard Iglitzin & Lavitt LLP, Seattle, Washington for

Intervenor-Defendant-Appellee.

4 ALASKA AIRLINES V. SCHURKE

OPINION

BERZON, Circuit Judge:

We are asked whether a claim premised on a state law

right to reschedule vacation leave for family medical

purposes is preempted by the Railway Labor Act (“RLA”), 45

U.S.C. §§ 151–65, 181–88, when the worker’s underlying

right to vacation leave is covered by a collective bargaining

agreement (“CBA”). We conclude that it is not.

The Supreme Court has repeatedly instructed that RLA

preemption — like the “virtually identical” preemption under

section 301 of the Labor Management Relations Act

(“LMRA”), 29 U.S.C. § 1851 — extends only as far as

necessary to protect the role of labor arbitration in resolving

CBA disputes. Hawaiian Airlines, Inc. v. Norris, 512 U.S.

246, 262–64 (1994); Lingle v. Norge Div. of Magic Chef, Inc.,

486 U.S. 399, 413 (1988). Consistent with this precedent, we

recognize RLA and LMRA § 301 preemption only where a

state law claim arises entirely from or requires construction

of a CBA. Matson v. United Parcel Serv., Inc., 840 F.3d

1126, 1132–33 (9th Cir. 2016); Kobold v. Good Samaritan

Reg’l Med. Ctr., 832 F.3d 1024, 1032–33 (9th Cir. 2016);

1

Because the RLA and LMRA § 301 preemption standards are

“virtually identical” in purpose and function, they are, for the most part,

analyzed under a single test and a single, cohesive body of case law.

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 260, 262–63 & n.9

(1994). The one significant difference between RLA and LMRA § 301

preemption is that, under our case law, the latter, but not the former, gives

rise to federal court jurisdiction under the “complete preemption” doctrine.

Caterpillar Inc. v. Williams, 482 U.S. 386, 393–94 (1987); Moore-Thomas

v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009); see also

infra note 15.

ALASKA AIRLINES V. SCHURKE 5

Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1060 (9th Cir.

2007). Neither condition applies here. That a CBA must be

consulted to confirm the existence of accrued vacation days

is not sufficient to extinguish an independent state law right

to use the accrued time to care for a sick child.

I

In May 2011, Laura Masserant, a flight attendant for

Alaska Airlines (“the Airline”), asked for time off to care for

her son, who was sick with bronchitis. Masserant had no sick

days available, so she asked to use two of her seven days of

accrued vacation leave.

The Airline denied Masserant’s request, noting that, in

accordance with the CBA between the Airline and the

Association of Flight Attendants (“the Union”), Masserant’s

banked vacation days had already been scheduled for use

later in the year. Under the terms of the CBA, vacation days

for each calendar year are requested the preceding fall and

scheduled by January 1 for the ensuing year. Once

scheduled, these vacation days may be “exchanged” between

flight attendants, used for personal medical leaves of absence,

used for maternity-related leaves of absence, used to extend

bereavement leave, or “cashed out” — that is, paid out

immediately, with the vacation days kept on calendar but

converted to unpaid time off. However, the CBA does not

allow scheduled vacation days to be moved for family

medical reasons. Accordingly, Masserant’s only option under

the CBA was to take unscheduled leave to care for her son

and so to incur disciplinary “points.”

On June 21, 2011, Masserant filed a complaint with the

Washington Department of Labor and Industries (“L&I”),

6 ALASKA AIRLINES V. SCHURKE

alleging that the Airline’s refusal to allow use of banked

vacation days violated the Washington Family Care Act

(“WFCA”), Wash. Rev. Code § 49.12.270. The WFCA

guarantees workers the flexibility to use accrued sick leave or

other paid leave for family medical reasons. Workers

invoking the WFCA must generally “comply with the terms

of the [CBA] or employer policy applicable to the leave,”

except that they need not comply with terms or policies

“relating to the choice of leave.” Wash. Rev. Code

§ 49.12.270(1).2

The Airline opposed Masserant’s WFCA claim on two

grounds here relevant. First, it disputed L&I’s jurisdiction.

The Airline asserted that Masserant’s complaint was not an

ordinary state law claim but a CBA dispute in disguise, and

therefore was reserved, under the RLA, to the exclusive

2

The WFCA provides, in relevant part:

If, under the terms of a collective bargaining agreement

or employer policy applicable to an employee, the

employee is entitled to sick leave or other paid time off,

then an employer shall allow an employee to use any or

all of the employee’s choice of sick leave or other paid

time off to care for: (a) A child of the employee with a

health condition that requires treatment or supervision;

or (b) a spouse, parent, parent-in-law, or grandparent of

the employee who has a serious health condition or an

emergency condition. An employee may not take

advance leave until it has been earned. The employee

taking leave under the circumstances described in this

section must comply with the terms of the collective

bargaining agreement or employer policy applicable to

the leave, except for any terms relating to the choice of

leave.

Wash. Rev. Code § 49.12.270(1).

ALASKA AIRLINES V. SCHURKE 7

jurisdiction of the CBA’s grievance and arbitration

mechanism. Second, the Airline disputed Masserant’s view

of the application of Washington law to the CBA’s vacation

leave provisions. According to the Airline, requiring

adherence to the CBA’s vacation-scheduling regime was not

a prohibited restriction on “the choice of leave,” Wash. Rev.

Code § 49.12.270(1), but a permissible condition on earning

leave in the first place.

The state agency sided with Masserant. The investigator

responsible for Masserant’s claim noted that it was

undisputed that Masserant’s banked vacation days were

available as of May 2011 for exchange, personal medical

leave, maternity-related leave, bereavement leave, or

immediate cash-out. The leave was therefore “earned,” and

Masserant was “entitled” to use it, within the meaning of the

WFCA. The investigator concluded that the CBA’s limits on

the use of banked vacation time, which could be used for

certain other unscheduled purposes, served only to limit “the

choice of leave,” and were therefore void under state law. In

May 2012, L&I issued a final notice of infraction and a $200

fine.

L&I did not directly address the Airline’s jurisdictional

argument. But in resting entirely on the interpretation and

application of Washington law rather than on some disputed

aspect of the CBA, L&I necessarily rejected the argument.

As the Supreme Court held in Norris, RLA preemption does

not apply where the state law claim can be resolved

independently of any CBA dispute. Norris, 512 U.S. at

256–58; see also Lingle, 486 U.S. at 407 (describing the same

standard in the LMRA § 301 context).

8 ALASKA AIRLINES V. SCHURKE

While the L&I proceeding was ongoing, the Airline was

in the midst of federal litigation against L&I officials to

enjoin it. That federal litigation, the genesis of the present

appeal, asserted that Masserant’s state law claim was so

bound up in a dispute over the terms of the CBA as to be

preempted under the Railway Labor Act.

Masserant was not a party to the federal action, but her

Union intervened. In support of its intervention motion, the

Union noted that if WFCA claims such as Masserant’s were

to be treated as CBA disputes, it would be largely the Union,

rather than individual workers, that would have responsibility

for pursuing those disputes through grievance and

arbitration.3 See Int’l Bhd. of Elec. Workers v. Foust,

442 U.S. 42, 49–52 (1979).

The district court concluded that Masserant’s WFCA

claim was unrelated to any dispute over the meaning of the

CBA. It was common ground among the parties that

Masserant had banked vacation days but was not permitted,

under the terms of the CBA, to take them early for her son’s

medical care. The question was therefore purely one of state

law — whether banked, prescheduled vacation days were

subject to the state’s nonnegotiable right to use accrued paid

leave for family medical purposes. The Airline itself framed

the inquiry in these terms at the L&I proceeding, arguing that

“Masserant correctly sets out the approach outlined by the

3

Section 20.A of the CBA “establishe[s] a Board of Adjustment for

the purpose of adjusting and deciding [CBA] disputes.” (Emphasis

omitted). Section 20.D provides that “[t]he Board shall consider any

dispute properly submitted to it by the [Master Executive Council]

President of the Association of Flight Attendants . . . or by the [Airline].”

ALASKA AIRLINES V. SCHURKE 9

CBA and Alaska [Airlines] policy, but is wrong in her WFCA

analysis.” (Emphasis added).

Relying on a long line of RLA and LMRA § 301 cases

from this circuit and the Supreme Court, the district court

concluded that referring to undisputed CBA provisions in the

course of adjudicating a state law cause of action was not

enough to trigger RLA preemption. See Livadas v.

Bradshaw, 512 U.S. 107, 124–25 (1994); Lingle, 486 U.S. at

407; Burnside, 491 F.3d at 1060. The court therefore denied

the Airline’s motion for summary judgment and granted the

defendants’ and Union’s cross-motions.

On appeal, the Airline renews its argument that the RLA

preempts Masserant’s WFCA claim. A divided panel of this

court agreed. The panel majority acknowledged that the

terms of the CBA were undisputed. Alaska Airlines Inc. v.

Schurke, 846 F.3d 1081, 1093 (9th Cir. 2017). But it held the

state law cause of action nonetheless preempted “because the

right to take paid leave arises solely from the collective

bargaining agreement.” Id. The panel majority reasoned that

the WFCA “only applies if the employee has a right conferred

by the collective bargaining agreement, so the state right is

intertwined with . . . the collective bargaining agreement.”

Id.4 A majority of active, nonrecused judges voted for en

banc rehearing.

We review de novo the district court’s conclusion that

RLA preemption does not apply. Cramer v. Consol.

Freightways, Inc., 255 F.3d 683, 689 (9th Cir. 2001) (en

4

The WFCA is not so limited. It applies both to workers covered by

CBAs and to those covered by employer-established leave policies. See

supra note 2.

10 ALASKA AIRLINES V. SCHURKE

banc), and affirm the judgment of the district court. Under

both the RLA and LMRA § 301, federal preemption extends

no further than necessary to preserve the role of grievance

and arbitration, and the application of federal labor law, in

resolving CBA disputes. That a state law cause of action is

conditioned on some term or condition of employment that

was collectively bargained, rather than unilaterally

established by the employer, does not itself create a CBA

dispute.

II

We begin by reviewing the language of the RLA and the

long line of cases explaining the purpose and scope of RLA

and LMRA § 301 preemption.

A

The RLA creates “a comprehensive framework for

resolving labor disputes” in the rail and airline industries.

Norris, 512 U.S. at 252. Within this framework, labor

disputes are first categorized as “representation,” “major,” or

“minor,” according to their subject matter,5 then assigned to

a corresponding dispute-resolution mechanism. See W.

Airlines, Inc. v. Int’l Bhd. of Teamsters, 480 U.S. 1301,

1302–03 (1987) (O’Connor, J., in chambers).

“Representation” disputes concern the scope of the

bargaining unit and the identity of the bargaining

5

The RLA does not itself use the terms “major” or “minor.”

However, the terms were widely used to describe these two categories of

dispute before the statute was enacted, see Elgin, J. & E. Ry. Co. v.

Burley, 325 U.S. 711, 723 (1945), and remain in common use.

ALASKA AIRLINES V. SCHURKE 11

representative. Id. at 1302. Under section 2, Ninth, of the

RLA, representation disputes must be resolved by the

National Mediation Board. Id. at 1302–03; see also

45 U.S.C. §§ 152, 181.

“Major” disputes are those “concerning rates of pay,

rules, or working conditions.” 45 U.S.C. § 151a; Consol. Rail

Corp. v. Ry. Labor Execs.’ Ass’n (Conrail), 491 U.S. 299,

302 (1989). “They arise where there is no [CBA] or where it

is sought to change the terms of [an existing] one.” Conrail,

491 U.S. at 302 (citation omitted). Major disputes must be

resolved through an extensive bargaining, mediation, and

noncompulsory arbitration process, in which both sides are

subject to certain duties enforceable in federal court.

45 U.S.C. § 152, First, Seventh; id. §§ 156, 181; Conrail,

491 U.S. at 302.

Finally, “minor” disputes are those “growing out of

grievances or . . . the interpretation or application of

agreements covering rates of pay, rules, or working

conditions.” 45 U.S.C. § 151a; Conrail, 491 U.S. at 303.

They are, in other words, CBA disputes, for which the term

“grievance” is often used as a generic descriptor. Norris,

512 U.S. at 255; see also Conrail, 491 U.S. at 302 (“[M]ajor

disputes seek to create contractual rights, minor disputes to

enforce them.”). Minor disputes must be addressed through

the CBA’s established grievance mechanism, and then, if

necessary, arbitrated before the appropriate adjustment

board.6 45 U.S.C. § 152, Sixth; id. §§ 153, 184.

6

Minor disputes in the rail industry are arbitrated before the National

Rail Adjustment Board. See 45 U.S.C. § 153, First. When the RLA was

extended to the airline industry in 1936, Congress provided for the

possibility of a National Air Transport Adjustment Board, see 45 U.S.C.

12 ALASKA AIRLINES V. SCHURKE

Like the National Labor Relations Act (“NLRA”),

29 U.S.C. §§ 151–69, and the LMRA, 29 U.S.C. §§ 141–97,

the RLA contains no express preemption language. See Air

Transp. Ass’n of Am. v. City & County of San Francisco,

266 F.3d 1064, 1076 (9th Cir. 2001). Preemption is instead

implied as necessary to give effect to congressional intent,

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208–11 (1985),

subject to the critical caveat that the “[p]re-emption of

employment standards within the traditional police power of

the State should not be lightly inferred,” Norris, 512 U.S. at

252 (internal quotation marks omitted).

Congress’s intent in passing the RLA was to promote

industrial peace by providing a “comprehensive” scheme for

resolving labor disputes “through negotiation rather than

industrial strife.” Norris, 512 U.S. at 252; Bowen v. U.S.

Postal Serv., 459 U.S. 212, 225 (1983); see 45 U.S.C. § 151a.

As in the LMRA context,7 the arbitration of CBA disputes in

§ 185, but no such body was ever formed. Instead, minor disputes arising

in the airline industry are arbitrated before the specific “system board of

adjustment” set up by each airline industry CBA. See Conrail, 491 U.S.

at 304 n.4.

7

The source of the obligation to arbitrate differs between the RLA

and the LMRA. The RLA creates the obligation, providing for CBA

disputes to be resolved through grievance and arbitration, and requiring

“adjustment boards” to be created for the arbitration. 45 U.S.C. §§ 153,

184; see also Union Pac. R.R. Co. v. Price, 360 U.S. 601, 610–11 (1959)

(explaining the origins of the RLA’s grievance and arbitration mandate).

LMRA § 301, on the other hand, protects contractually created

obligations. It provides, as a matter of federal common law, for the

specific performance of CBA terms requiring the grievance and arbitration

of disputes. Textile Workers Union v. Lincoln Mills of Ala., 353 U.S. 448,

450–51 (1957); see also Local 174, Teamsters v. Lucas Flour Co.,

369 U.S. 95, 103 (1962). Such terms are not mandated by statute. But as,

ALASKA AIRLINES V. SCHURKE 13

RLA-covered industries — “minor disputes,” in RLA terms

— is an essential component of federal labor policy. See

United Steelworkers v. Warrior & Gulf Navigation Co.

(Steelworkers II), 363 U.S. 574, 578 (1960). The reasons are

threefold.

First, a collective bargaining agreement is more than just

a contract; it is “an effort to erect a system of industrial self-

government.” Id. at 580; see also California v. Taylor,

353 U.S. 553, 565–66 (1957). A CBA sets forth “a

generalized code to govern . . . the whole employment

relationship,” including situations “which the draftsmen

[could not] wholly anticipate.” Steelworkers II, 363 U.S. at

578–79. Accordingly, CBA dispute resolution is itself a part

of a “continuous collective bargaining process,” United

Steelworkers v. Enter. Wheel & Car Corp. (Steelworkers III),

363 U.S. 593, 596 (1960) — “a vehicle by which meaning

and content are given” to the labor agreement, Steelworkers

II, 363 U.S. at 581. To set aside the parties’ grievance and

arbitration process is to undo an integral part of the workplace

self-governance scheme. Id. at 578; Bhd. of R.R. Trainmen v.

Jacksonville Terminal Co., 394 U.S. 369, 378 (1969); see

also Conrail, 491 U.S. at 310–11.

Second, and relatedly, a CBA is not strictly limited to its

terms, but gives rise to a broader common law of its own —

“the common law of a particular industry or of a particular

in practice, “[a]rbitrators are delegated by nearly all [CBAs] as the

adjudicators of contract disputes,” Lingle, 486 U.S. at 411 n.11, the end

purposes of LMRA § 301 preemption and RLA preemption are the same

— to enforce “a central tenet of federal labor-contract law . . . that it is the

arbitrator, not the court, who has the responsibility to interpret the labor

contract in the first instance.” Lueck, 471 U.S. at 220.

14 ALASKA AIRLINES V. SCHURKE

plant.” Steelworkers II, 363 U.S. at 579. The resolution of

CBA disputes may therefore “assume proportions of which

judges are ignorant.” United Steelworkers v. Am. Mfg. Co.

(Steelworkers I), 363 U.S. 564, 567 (1960); see also Conrail,

491 U.S. at 311–12. For example, the resolution of CBA

disputes may be informed by ad hoc considerations — “the

effect upon productivity of a particular result, its consequence

to the morale of the shop, . . . whether tensions will be

heightened or diminished,” Steelworkers II, 363 U.S. at 582

— which a judge may lack the expertise properly to balance.

Third, grievance and arbitration are believed to provide

certain procedural benefits, including a more “prompt and

orderly settlement” of CBA disputes than that offered by the

ordinary judicial process. 45 U.S.C. § 151a. In committing

CBA disputes to an adjustment board, a worker “receive[s] a

final administrative answer to his dispute; and if he wins, he

will be spared the expense and effort of time-consuming

appeals which he may be less able to bear than the

[employer].” Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89,

94 (1978) (per curiam). The intended result is to prevent an

“[a]ccumulation of [minor] disputes,” Bhd. of R.R. Trainmen

v. Chi. River & Ind. R.R. Co., 353 U.S. 30, 40 (1957), and so

to “diminish the risk of interruptions in commerce.” Conrail,

491 U.S. at 311.

To account for these considerations, the Supreme Court

has held that RLA and LMRA grievance and arbitration

systems must be used for claims arising under the CBA. See

Air Transp. Ass’n, 266 F.3d at 1076 (citing Taylor, 353 U.S.

at 559–61). Minor disputes under the RLA — those disputes

concerned with “duties and rights created or defined by” the

collective bargaining agreement, Norris, 512 U.S. at 258 —

“must be resolved only through the RLA mechanisms.” Id.

ALASKA AIRLINES V. SCHURKE 15

at 253; see also Atchison, Topeka & Santa Fe Ry. Co. v.

Buell, 480 U.S. 557, 563 (1987). To the extent state law

would also create a cause of action for a minor dispute, and

thereby “permit[] an individual to sidestep available

grievance procedures,” the state law action is preempted.

Lingle, 486 U.S. at 411.

Such limited preemption has other benefits as well. In

particular, it ensures that CBA disputes are governed by a

uniform set of principles informed by federal labor law and

the industrial common law applicable to the agreement, id. at

405–06, rather than “conflicting substantive interpretation

under competing [state] legal systems.” Local 174,

Teamsters v. Lucas Flour Co., 369 U.S. 95, 104 (1962); see

also Republic Steel Corp. v. Maddox, 379 U.S. 650, 654–57

(1965); Int’l Ass’n of Machinists v. Cent. Airlines, Inc.,

372 U.S. 682, 691–95 & nn. 17–18 (1963). “[T]he

application of state law” to CBA disputes “might lead to

inconsistent results since there could be as many state-law

principles as there are States.” Lingle, 486 U.S. at 406; see

also Norris, 512 U.S. at 263 & n.9.

At the same time — and of critical importance here — the

RLA does not provide for, nor does it manifest any interest

in, national or systemwide uniformity in substantive labor

rights.8 See Buell, 480 U.S. at 565. “[T]he enactment by

Congress of the Railway Labor Act was not a pre-emption of

the field of regulating working conditions themselves . . . .”

8

The National Mediation Board has determined that the RLA allows

certification of unions only where they “represent the majority of a

system-wide class of employees.” Summit Airlines, Inc. v. Teamsters

Local Union No. 295, 628 F.2d 787, 795 (2d Cir. 1980); see 45 U.S.C.

§ 152, Ninth.

16 ALASKA AIRLINES V. SCHURKE

Terminal R.R. Ass’n of St. Louis v. Bhd. of R.R. Trainmen,

318 U.S. 1, 7 (1943). Setting minimum wages, regulating

work hours and pay periods, requiring paid and unpaid leave,

protecting worker safety, prohibiting discrimination in

employment, and establishing other worker rights remains

well within the traditional police power of the states, and will

naturally result in labor standards that affect workers

differently from one jurisdiction to the next, even when those

workers fall under a single labor agreement. See Norris,

512 U.S. at 262–63.

Stated differently, it is not a concern of the RLA that the

employer’s operations may be affected by its obligation to

comply with a different set of substantive state law rights in

each jurisdiction. The purpose of RLA minor dispute

preemption is to reduce commercial disruption by

“facilitat[ing] collective bargaining and . . . achiev[ing]

industrial peace,” Foust, 442 U.S. at 47, not to reduce

burdens on an employer by federalizing all of labor and

employment law so as to preempt independent state law

rights. For RLA-covered workers, as for LMRA-covered

workers, “it would be inconsistent with congressional intent

. . . to preempt state rules that proscribe conduct, or establish

rights and obligations, independent of a labor contract.”

Lueck, 471 U.S. at 212.

It follows from the RLA minor dispute provision’s focus

on grieving and arbitrating CBA disputes that Congress did

not intend to preempt state law claims simply because they in

some respect implicate CBA provisions, Lueck, 471 U.S. at

211, make reference to a CBA-defined right, Livadas,

512 U.S. at 125, or create a state law cause of action factually

“parallel” to a grievable claim, Lingle, 486 U.S. at 408–10.

Rather, “an application of state law is pre-empted . . . only if

ALASKA AIRLINES V. SCHURKE 17

such application requires the interpretation of a collective-

bargaining agreement.”9 Id. at 413. In sum, RLA minor

dispute preemption and LMRA § 301 preemption protect the

primacy of grievance and arbitration as the forum for

resolving CBA disputes and the substantive supremacy of

federal law within that forum, nothing more. Norris,

512 U.S. at 262–63.

B

In evaluating RLA or LMRA § 301 preemption, we are

guided by the principle that if a state law claim “is either

grounded in the provisions of the labor contract or requires

interpretation of it,” the dispute must be resolved through

grievance and arbitration.10 Burnside, 491 F.3d at 1059. The

line “between preempted claims and those that survive” is not

one “that lends itself to analytical precision.” Cramer,

255 F.3d at 691. This circuit, however, has distilled the

Supreme Court’s RLA and LMRA § 301 case law into a two-

part inquiry into the nature of a plaintiff’s claim. Matson,

840 F.3d at 1132–33; Kobold, 832 F.3d at 1032–34; Burnside,

491 F.3d at 1059–60.11

9

As only minor dispute preemption is at issue in this case, we refer

to “RLA preemption” and “RLA minor dispute preemption”

interchangeably.

10

The same principle applies to federal law claims, although they

might better be described as “precluded.” See Buell, 480 U.S. at 563–65

& n.10.

11

The panel majority concluded that the Burnside test was

inapplicable to the present case because Burnside dealt with a state law

right from which workers could opt out if the CBA so provided. Schurke,

846 F.3d at 1090–91. The panel majority misread Burnside. There, we

18 ALASKA AIRLINES V. SCHURKE

First, to determine whether a particular right is grounded

in a CBA, we evaluate the “legal character” of the claim by

asking whether it seeks purely to vindicate a right or duty

created by the CBA itself. Livadas, 512 U.S. at 123. If a

claim arises entirely from a right or duty of the CBA — for

example, a claim for violation of the labor agreement,

whether sounding in contract or in tort,12 Lueck, 471 U.S. at

211 — it is, in effect, a CBA dispute in state law garb, and is

preempted. Livadas, 512 U.S. at 122–23. In such cases, the

CBA is the “only source” of the right the plaintiff seeks to

vindicate. Norris, 512 U.S. at 258 (quoting Andrews v.

Louisville & Nashville R.R. Co., 406 U.S. 320, 324 (1972)).

There is thus no part of the claim that “do[es] not require

construing [the] collective-bargaining agreement[],” Lingle,

486 U.S. at 411, and as to which litigation in court, rather

than though the grievance and arbitration system, would be

appropriate. See Steelworkers I, 363 U.S. at 568. For the

same reason, there is no part of the claim in which the

uniform body of federal labor law does not control the

did not address the distinction between state law rights that are opt-in, opt-

out, or nonnegotiable in explaining the general test for LMRA § 301

preemption; we addressed the distinction in explaining the result we

reached, after applying the generally applicable two-step test. See

Burnside, 491 F.3d at 1060–64. Burnside has been repeatedly so

construed. See Matson, 840 F.3d at 1132; Kobold, 832 F.3d at 1033. To

the extent there remains any doubt, we here reject the panel majority’s

misinterpretation of Burnside and reiterate the general applicability of the

two-step inquiry described.

12

Breach-of-contract claims are the paradigmatic example. However,

as the Supreme Court has recognized, RLA and LMRA § 301 preemption

must extend beyond breach-of-contract claims, as “[a]ny other result

would elevate form over substance and allow parties to evade [grievance

and labor arbitration] by relabeling their contract claims as claims for

tortious breach of contract.” Lueck, 471 U.S. at 211.

ALASKA AIRLINES V. SCHURKE 19

resolution of the parties’ dispute. See Maddox, 379 U.S. at

654–57; Cent. Airlines, 372 U.S. at 691–95 & nn. 17–18;

Lucas Flour, 369 U.S. at 104.

By contrast, claims are not simply CBA disputes by

another name, and so are not preempted under this first step,

if they just refer to a CBA-defined right, Livadas, 512 U.S. at

125; rely in part on a CBA’s terms of employment, Lueck,

471 U.S. at 211; run parallel to a CBA violation, Lingle,

486 U.S. at 408–10; or invite use of the CBA as a defense,

Caterpillar Inc. v. Williams, 482 U.S. 386, 398 (1987). See

also Kobold, 832 F.3d at 1032; Burnside, 491 F.3d at 1060.

Second, if a right is not grounded in a CBA in the sense

just explained, we ask whether litigating the state law claim

nonetheless requires interpretation of a CBA, such that

resolving the entire claim in court threatens the proper role of

grievance and arbitration. Norris, 512 U.S. at 262; Livadas,

512 U.S. at 124–25. “Interpretation” is construed narrowly;

“it means something more than ‘consider,’ ‘refer to,’ or

‘apply.’” Balcorta v. Twentieth Century-Fox Film Corp.,

208 F.3d 1102, 1108 (9th Cir. 2000).13 Accordingly, at this

second step of an RLA or LMRA § 301 preemption analysis,

claims are only preempted to the extent there is an active

dispute over “the meaning of contract terms.” Livadas,

512 U.S. at 124. “[A] hypothetical connection between the

claim and the terms of the CBA is not enough to preempt the

13

As in Balcorta, we here use the term “apply” in the sense of

applying the plain or undisputed terms of the CBA. See Balcorta,

208 F.3d at 1110–11; see also Lingle, 486 U.S. at 410 (“[A]s long as the

state-law claim can be resolved without interpreting the agreement itself,

the claim is ‘independent’ of the agreement . . . .”). Although a claim for

breach of the CBA might be framed as “applying” the CBA, that sort of

dispute over CBA “application” would be preempted under step one.

20 ALASKA AIRLINES V. SCHURKE

claim . . . .” Cramer, 255 F.3d at 691 (emphasis added). Nor

is it enough that resolving the state law claim requires a court

to refer to the CBA and apply its plain or undisputed

language — for example, “to discern that none of its terms is

reasonably in dispute,” id. at 692 (quoting Livadas, 512 U.S.

at 125); to identify “bargained-for wage rates in computing

[a] penalty,” Livadas, 512 U.S. at 125; or “to determine

whether [the CBA] contains a clear and unmistakable waiver

of state law rights,” Cramer, 255 F.3d at 692. See also

Kobold, 832 F.3d at 1033.

Notably, the result of preemption at the second step is

generally not the extinguishment of the state law claim.

Kobold, 832 F.3d at 1033–34. As previously explained,

neither the RLA nor the LMRA allows for the impairment of

worker rights that would exist in the absence of a CBA

dispute. Norris, 512 U.S. at 256, 262–63. It is contrary to the

statutes’ scope to allow “the parties to a collective-bargaining

agreement . . . to contract for what is illegal under state law,”

Lueck, 471 U.S. at 212, or to “penalize[] workers who have

chosen to join a union by preventing them from benefiting

from state labor regulations imposing minimal standards on

nonunion employers.” Metro. Life Ins. Co. v. Massachusetts,

471 U.S. 724, 756 (1985); see also 45 U.S.C. § 151a (stating,

as a purpose of the RLA, “to forbid any limitation upon

freedom of association among employees”). As a result, if,

at the second stage of the analysis, a state law claim depends

on a dispute over the meaning of a CBA, it is only “to that

degree preempted.” Kobold, 832 F.3d at 1036; see also

Matson, 840 F.3d at 1135. That is, state law claims are

preempted by the RLA or LMRA § 301 “only insofar as

resolution of the state-law claim requires the interpretation of

ALASKA AIRLINES V. SCHURKE 21

a collective-bargaining agreement.”14 Lingle, 486 U.S. at 409

n.8; see also Livadas, 512 U.S. at 124 n.18.

As this two-step preemption inquiry suggests, RLA and

LMRA § 301 preemption differ from typical conflict

preemption because they are not driven by substantive

conflicts in law. Rather, RLA and LMRA § 301 preemption

are grounded in the need to protect the proper forum for

resolving certain kinds of disputes (and, by extension, the

substantive law applied thereto). RLA and LMRA § 301

preemption are, in effect, a kind of “forum” preemption,

resembling the doctrine of primary jurisdiction or the

reference of disputes to arbitration under the Federal

Arbitration Act, 9 U.S.C. §§ 1–16.

In considering primary jurisdiction, for example, a court’s

goal is not to ascertain the substance of applicable law, but to

ensure that “an administrative body having regulatory

authority” that “requires expertise or uniformity in

administration” is permitted to resolve the issues that

Congress committed to it. Astiana v. Hain Celestial Grp.,

Inc., 783 F.3d 753, 760 (9th Cir. 2015) (internal quotation

marks omitted). Similarly, in the arbitrability context, a

court’s responsibility is to ascertain the subject matter or

posture of the dispute to determine the proper forum for

resolving it. See First Options of Chi., Inc. v. Kaplan,

514 U.S. 938, 943 (1995). RLA and LMRA § 301

14

So, for example, if addressing a state law claim first requires

resolving a dispute over CBA interpretation, resolving that dispute —

through grievance, through labor arbitration, or through settlement —

should allow the state law claim to proceed. See, e.g., Matson, 840 F.3d

at 1135 (concluding that “even if any interpretation of the CBA had been

required,” it was addressed by earlier grievance settlements and therefore

was not a basis for LMRA § 301 preemption).

22 ALASKA AIRLINES V. SCHURKE

preemption are analogous. The court’s role is not to resolve

the labor dispute, but to protect the role of grievance and

arbitration as a forum for doing so to the extent that forum’s

unique area of competency — CBA disputes — is at issue.15

The parallels are more than superficial. For one, the

result of RLA and LMRA § 301 forum preemption is not to

preempt state laws as such, but to assure that discrete claims

are decided in the appropriate forum. Caterpillar, 482 U.S.

at 394 (“Section 301 governs claims . . . .”); see also, e.g.,

Norris, 512 U.S. at 266 (“[R]espondent’s claims for discharge

in violation of public policy and in violation of the Hawaii

15

The dissent treats Aetna Health Inc. v. Davila, 542 U.S. 200, 209

(2004), as ruling out the possibility of a forum preemption analysis of this

kind. But Davila has nothing to do with the subject of the RLA or LMRA

§ 301 preemption analysis — the protection of a nonjudicial forum. The

statute at issue in Davila, the Employee Retirement Income Security Act

(“ERISA”), provides for no such alternative forum.

Moreover, Davila deals only with “complete preemption,” which,

despite its name, “is actually a doctrine of jurisdiction and is not to be

confused with ordinary preemption doctrine.” Balcorta, 208 F.3d at 1107

n.7; see also Caterpillar, 482 U.S. at 393. According to Davila, section

502(a) of ERISA, like section 301 of the LMRA, has such strong

preemptive force that it justifies an exception to the well-pleaded

complaint rule. Davila, 542 U.S. at 209. ERISA preemption defenses,

like LMRA § 301 defenses, are therefore valid grounds for removal. Id.

at 207–08. Unlike ERISA (or the LMRA), the RLA is not a source of

complete preemption, as it “does not provide a federal cause of action.”

Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1245–46 (9th Cir.

2009) (quoting 15 Moore’s Federal Practice § 103.45(3)(b) (3d ed. 2008);

see also Hughes v. United Air Lines, Inc., 634 F.3d 391, 394–95 (7th Cir.

2011), cert. denied, 565 U.S. 819; Sullivan v. Am. Airlines, Inc., 424 F.3d

267, 274–75 (2d Cir. 2005); Roddy v. Grand Trunk W. R.R. Inc., 395 F.3d

318, 326 (6th Cir. 2005); Geddes v. Am. Airlines, Inc., 321 F.3d 1349,

1356–57 (11th Cir. 2003), cert. denied, 540 U.S. 946.

ALASKA AIRLINES V. SCHURKE 23

Whistleblower Protection Act are not pre-empted by the RLA

. . . .” (emphasis added)); Int’l Bhd. of Elec. Workers v.

Hechler, 481 U.S. 851, 859 (1987) (“[W]e must determine if

respondent’s claim is sufficiently independent of the

collective-bargaining agreement . . . .” (emphasis added));

Humble v. Boeing Co., 305 F.3d 1004, 1008 (9th Cir. 2002)

(“[T]he plaintiff’s claim is the touchstone for the preemption

analysis . . . .” (emphasis added)). The primary point of

reference in the preemption analysis is therefore not state law

writ large — no state law is “challenged” under RLA or

LMRA § 301 preemption, nor is any state law at risk of

wholesale invalidation — but the plaintiff’s pleading. See

Espinal v. Nw. Airlines, 90 F.3d 1452, 1456 (9th Cir. 1996)

(“Where a plaintiff contends that an employer’s actions

violated rights protected by the CBA, there is a minor dispute

subject to RLA preemption. By contrast, where a plaintiff

contends that an employer’s actions violated a state-law

obligation, wholly independent of its obligations under the

CBA, there is no preemption.” (emphases added) (citation

omitted)).16

16

See also, e.g., United Steelworkers v. Rawson, 495 U.S. 362, 371

(1990) (“As we see it . . . , respondents’ tort claim cannot be described as

independent of the collective-bargaining agreement. This is not a situation

where the Union’s delegates are accused of acting in a way that might

violate the duty of reasonable care owed to every person in society. There

is no allegation, for example, that members of the safety committee

negligently caused damage to the structure of the mine . . . .”); Hechler,

481 U.S. at 861 (“In her complaint, respondent alleges . . . [a] type of

[preempted] tortious breach-of-contract claim. She asserts that . . . the

Union owed respondent a duty of care to ensure her a safe working

environment. Having assumed this duty under the collective-bargaining

agreement, the Union — according to the complaint — was then negligent

. . . .” (citation omitted)).

24 ALASKA AIRLINES V. SCHURKE

Furthermore, the RLA and LMRA § 301 forum

preemption inquiry is not an inquiry into the merits of a

claim; it is an inquiry into the claim’s “legal character” —

whatever its merits — so as to ensure it is decided in the

proper forum. Livadas, 512 U.S. at 123–24. In conducting

the preemption analysis, we may no more invade the province

of the state court to resolve a state law claim over which we

lack jurisdiction than we may invade the province of the labor

arbitrator to construe the CBA.17 See Steelworkers III,

363 U.S. at 599. Our only job is to decide whether, as

pleaded, the claim “in this case is ‘independent’ of the [CBA]

in the sense of ‘independent’ that matters for . . . pre-emption

purposes: resolution of the state-law claim does not require

construing the collective-bargaining agreement.” Lingle, 486

U.S. at 407.

The distinction between RLA and LMRA § 301

preemption (as an inquiry into the proper forum for resolving

a claim) and the more common application of conflict

preemption (as an inquiry into substantive conflicts between

state and federal law) is widely recognized across the circuits.

See, e.g., Smith v. Am. Airlines, Inc., 414 F.3d 949, 952 (8th

17

Ordinarily, RLA and LMRA § 301 preemption claims are made

defensively, by an employer seeking the dismissal of a claim brought in

or removed to federal court. In such cases, a federal court finding no

preemption may, if it otherwise has jurisdiction, go on to resolve the

merits. Here, however, the Airline raised RLA preemption offensively,

in a federal action in which our jurisdiction is strictly limited to the

preemption analysis. The parties do not cite, nor have we uncovered, a

similar offensive RLA or LMRA § 301 preemption case, in which the

intended subject of the federal injunction is an ongoing state agency or

state court proceeding. But the defendants have raised no procedural

objection to our authority to decide the present case. See Sprint

Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 79–80 (2013); Bud Antle, Inc. v.

Barbosa, 45 F.3d 1261, 1271–72 (9th Cir. 1994).

ALASKA AIRLINES V. SCHURKE 25

Cir. 2005) (“[M]inor disputes are subject to mandatory

arbitration before an adjustment board which has primary

jurisdiction to construe the collective bargaining

agreement.”); Sullivan v. Am. Airlines, Inc., 424 F.3d 267,

276 (2d Cir. 2005) (“[P]rimary jurisdiction over minor

disputes under the RLA . . . exists solely in the adjustment

boards established pursuant to [the RLA].”); Renneisen v.

Am. Airlines, Inc., 990 F.2d 918, 923 (7th Cir. 1993) (“[T]he

RLA mandates a statutory forum for plaintiffs’ claims.”);

Davies v. Am. Airlines, Inc., 971 F.2d 463, 465 n.1 (10th Cir.

1992) (“By [RLA] ‘preemption’ we refer to forum

preemption.”); Ry. Labor Execs. Ass’n v. Pittsburgh & Lake

Erie R.R. Co., 858 F.2d 936, 944 (3d Cir. 1988) (“[F]orum

preemption under the RLA may ultimately affect the

litigation of this case.”); Miller v. Norfolk & W. Ry. Co.,

834 F.2d 556, 561 (6th Cir. 1987) (“[A] state claim which is

preempted by the RLA, as by the NLRA under Garmon, is

instead preempted under a choice of forum analysis.”).

The Supreme Court further clarified the distinction in

Livadas. There, a worker subject to a CBA filed a complaint

with the California Division of Labor Standards Enforcement

(“DLSE”), seeking damages under a state statute requiring

the immediate payment of past wages upon termination.

Livadas, 512 U.S. at 111–12. DLSE refused to consider the

complaint, citing the worker’s CBA. Id. at 112–13. At the

time, DLSE had a policy of refusing to consider state law

labor complaints that involved a CBA in some way. Id. at

112–14, 121.

In deciding against DLSE, the Supreme Court made two

distinct observations about two distinct preemption doctrines.

First, the Supreme Court noted that nothing about the

worker’s claim implicated LMRA § 301 preemption.

26 ALASKA AIRLINES V. SCHURKE

Although the worker was owed wages based on having

worked under a CBA, and although the CBA determined the

amount of those wages, the CBA did not create the right to

immediate payment on termination. Id. at 124–25 (“The only

issue raised by Livadas’s claim . . . was a question of state

law . . . .”). Nor was any disputed term of the CBA

implicated in the adjudication of that state law right. Id. at

125 (observing that, although CBA-defined wages were used

to calculate damages under the Labor Code, “[t]here is no

indication that there was a ‘dispute’ in this case over the

amount” of wages owed under the CBA). The claim was

therefore well within DLSE’s authority to adjudicate.

Second, and separately, the Supreme Court concluded that

DLSE’s policy of refusing to consider state law complaints

involving a CBA was subject to substantive conflict

preemption, as the policy uniquely disfavored CBA-covered

workers, and thus interfered with substantive federal rights

under the NLRA. 29 U.S.C. § 157; Livadas, 512 U.S. at

116–17 & n.11. The NLRA protects the right “to bargain

collectively through representatives of [workers’] own

choosing.” 29 U.S.C. § 157. Accordingly, DLSE’s policy

was preempted substantively to the extent there existed,

“rooted in the text of [the NLRA],” a right to bargain without

the state imposing penalties on workers if they ultimately

ALASKA AIRLINES V. SCHURKE 27

reached and became bound by a labor agreement.18 Livadas,

512 U.S. at 117 n.11.

The differences between LMRA § 301 preemption (and

so RLA preemption) and ordinary, substantive conflict

preemption, as the Court employed the doctrines in Livadas,

are significant. With respect to LMRA § 301 preemption, the

Court considered the worker’s claim based on her complaint

before DLSE, concluded the claim was not extinguished, and

noted that a different result could obtain in a differently

pleaded claim under the same state statute. Id. at 121–25 &

n.19. The focus was thus the plaintiff’s pleading, the

character of the claim, and the proper forum to resolve that

claim. With respect to substantive conflict preemption under

the NLRA, the Court looked at the state law as the state

applied it, concluded that the rule of law applied by the state

was substantively in conflict with federal law, and invalidated

it wholesale. Id. at 128–32. The focus was thus the meaning

of state law and its consistency with federal law. The two

analyses — procedural and substantive — were not conflated

in Livadas and should not be conflated here. See also Air

Transp. Ass’n, 266 F.3d at 1076 (distinguishing RLA minor

18

The Court concluded, in the alternative, that the DLSE policy was

subject to Machinists preemption. Machinists preemption is another, more

specific application of substantive conflict preemption under the NLRA.

It applies where state law attempts to regulate areas intentionally left “to

be controlled by the free play of economic forces,” so as to “preserve[]

Congress’ intentional balance between the uncontrolled power of

management and labor to further their respective interests.” Bldg. &

Const. Trades Council of Metro. Dist. v. Associated Builders &

Contractors of Mass./R.I., Inc., 507 U.S. 218, 225–26 (1993) (internal

quotation marks omitted); Lodge 76, Int’l Ass’n of Machinists &

Aerospace Workers v. Wis. Emp’t Relations Comm’n, 427 U.S. 132

(1976).

28 ALASKA AIRLINES V. SCHURKE

dispute preemption from “substantive” conflict preemption as

applied in the RLA context, and observing that the latter “is

analogous to Machinists preemption under the NLRA”).

It is perhaps because of the risk of such confusion that

labor law preemption is rarely described as an

undifferentiated application of the “field” or “conflict”

preemption that governs in other substantive areas, see

Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363,

372–73 & n.6 (2000), but rather by identifying the particular

species of labor preemption — Garmon preemption,19

Machinists preemption,20 RLA or LMRA § 301 preemption

— relevant to the parties’ dispute, based on the federal labor

law interests ostensibly under threat in a given case. See, e.g.,

Bldg. & Const. Trades Council of Metro. Dist. v. Associated

Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218, 224

(1993); Retail Prop. Tr. v. United Bhd. of Carpenters &

Joiners, 768 F.3d 938, 951–55 (9th Cir. 2014). But as in

Livadas, what matters in a preemption analysis is not the

nomenclature; what matters is “[t]he purpose of Congress,”

which is “the ultimate touchstone.” Lueck, 471 U.S. at 208

(quoting Malone v. White Motor Corp., 435 U.S. 497, 504

19

See San Diego Bldg. Trades Council, Millmen’s Union, Local 2020

v. Garmon, 359 U.S. 236, 245 (1959) (holding that “the States as well as

the federal court must defer to the exclusive competence of the National

Labor Relations Board” if “an activity is arguably subject to § 7 or § 8 of

the [NLRA]”).

20

See Int’l Ass’n of Machinists & Aerospace Workers, 427 U.S. at

145–48 (holding that state law is preempted where it would upset the

congressionally defined balance of power between management and labor

by regulating activity Congress deliberately left unregulated); see also

Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608, 614

(1986).

ALASKA AIRLINES V. SCHURKE 29

(1978)). In the RLA and LMRA § 301 context, the “purpose

of Congress” is to protect the role of grievance and arbitration

and of federal labor law in resolving CBA disputes, not to

alter or displace state law labor rights. Norris, 512 U.S. at

256; Lingle, 486 U.S. at 408–09; Maddox, 379 U.S. at

654–57; Bhd. of R.R. Trainmen, Enter. Lodge, No. 27 v.

Toledo, Peoria & W. R.R., 321 U.S. 50, 58 (1944). The

preemption analysis is targeted accordingly — not to the

substance of state law or the merits of the parties’ dispute, but

to the “legal character” of the claim asserted. Livadas,

512 U.S. at 123. To the extent a plaintiff’s state law claim

can be resolved without infringing on the role of grievance

and arbitration, there is no “conflict” to speak of, and the

preemption analysis ends.

C

Having identified the correct approach to RLA

preemption, applying it in this case is straightforward.

First, Masserant’s claim does not arise entirely from the

CBA. Masserant has alleged a violation of the WFCA’s

independent state law right to use banked vacation days. Her

view of the WFCA, and that of the L&I, is that the statute’s

“choice of leave” exception applies to banked vacation

already earned, even if under workplace practices (whether

CBA-governed or not) prescheduled vacation may be

rescheduled or used for exigencies only under specified

circumstances. Unsurprisingly, the Airline disagrees with

this interpretation of the WFCA. And after further

administrative or state court review, the Airline may yet

prevail in its view of Washington law. See Wash. Admin.

Code § 296-130-070 (describing the administrative appeal

process at L&I). But what matters here is not the legal merits

30 ALASKA AIRLINES V. SCHURKE

of Masserant’s state law claim, but that Masserant’s claim

invokes a state law right that applies to all workers, whether

CBA-covered or not, and gives rise to a state law dispute, not

a dispute concerning the meaning of the CBA.

Second, whatever the correct interpretation of Washington

law, Masserant’s claim does not require construction of the

CBA. The claim of course relies on the terms and conditions

of employment established by the CBA, in that Masserant’s

banked vacation days exist only by virtue of her having

earned them in accordance with a workplace policy

incorporated in the CBA. And the claim may be aided by

reference to certain other CBA provisions, such as those

making banked vacation immediately available for exchange,

personal medical leave, maternity leave, bereavement leave,

or cash-out. See Livadas, 512 U.S. at 125. But reliance on

and reference to CBA-established or CBA-defined terms of

employment do not make for a CBA dispute if there is no

disagreement about the meaning or application of any

relevant CBA-covered terms of employment. See id.

(rejecting preemption where the calculation of damages

depended on the CBA’s undisputed wage provisions);

Burnside, 491 F.3d at 1072 (citing examples of employers

attempting to manufacture preemption by invoking CBA

disputes unrelated to the resolution of the claims at issue).

In this case, the meaning of every relevant provision in

the CBA is agreed upon. Most importantly, the parties agree

that Masserant did, in fact, have seven days of banked

vacation, which she could also have chosen to use for a

number of exigent, unscheduled purposes, such as

ALASKA AIRLINES V. SCHURKE 31

bereavement or personal medical leave.21 The Airline argues

that a dispute exists over whether Masserant truly “earned”

her vacation and was “entitled” to take it within the meaning

of the WFCA. But those terms, as here relevant, are

contained within the WFCA, not the CBA. See Wash. Rev.

Code § 49.12.270(1). A dispute over their meaning is a

dispute over state law, and therefore outside the scope of the

“minor disputes” to which an RLA system adjustment board

is limited. See 45 U.S.C. § 184; Norris, 512 U.S. at 254–55.

“[T]he construction of the [CBA] is simply not involved.”

Valles v. Ivy Hill Corp., 410 F.3d 1071, 1082 (9th Cir. 2005).

If the state agency or state courts ultimately decide that the

Airline is correct about the meaning of the WFCA, Masserant

will not have been entitled to use her seven banked vacation

days to care for her sick child, and she will lose without

regard to any construction of the CBA; if Masserant is correct

about the meaning of the WFCA, the remedies accorded by

state law will be available, and she will win without regard to

any construction of the CBA.

At oral argument, the Airline suggested that the Union

was separately seeking to have the CBA reinterpreted to

allow for the rescheduling of vacation leave for family

medical purposes. But it does not matter for present purposes

whether the Union, or a worker, may in a separate grievance

proceeding pursue the theory that the CBA does allow

rescheduling vacation leave for family medical reasons. A

state law right to flexibility in rescheduling vacation leave for

21

In light of the numerous undisputed options for repurposing

advance-scheduled leave, the Airline’s professed concern for the

predictability of its schedules — irrelevant in any event for the purposes

of an RLA preemption analysis, see Buell, 480 U.S. at 565 — is somewhat

overstated.

32 ALASKA AIRLINES V. SCHURKE

family medical reasons is no less independent of the CBA if

the CBA also provides that right on its own. The fact that “a

CBA provides a remedy or duty related to a situation that is

also directly regulated by non-negotiable state law does not

mean the employee is limited to a claim based on the CBA.”

Humble, 305 F.3d at 1009; see Norris, 512 U.S. at 261;

Lingle, 486 U.S. at 412–13. What matters for present

purposes, in other words, is that Masserant can prevail if state

law means what L&I has already concluded it means, whether

or not the Airline’s CBA interpretation is correct.22

In sum, the requisites of RLA preemption do not exist in

this case. Masserant is entitled to pursue her state law

remedies, if any, before the state agency and in state courts,

as state law provides.

D

The dissent advocates a version of preemption for which

no authority exists in the RLA minor dispute or LMRA § 301

context, for which no party has argued,23 and which neither

the district court nor the three-judge panel so much as

22

At oral argument, the Union disavowed any interest in labor

arbitration on Masserant’s behalf over the possibility of a CBA-created

right to reschedule accrued vacation leave. The Union, as the workers’

representative, is the party responsible under the CBA for pursuing a

worker’s claim in labor arbitration. Bowen, 459 U.S. at 225–26 & n.14;

supra note 3.

23

The Airline disavowed the dissent’s reading of the RLA both in its

briefing and at oral argument. L&I and the Union took the same position.

ALASKA AIRLINES V. SCHURKE 33

mentioned.24 The court’s first task, according to the dissent,

is to construe state law and resolve all disputes between the

parties as to its meaning. Only then would we consider who

has the authority to resolve the parties’ dispute — at that

point, a seemingly futile endeavor.

The practical consequences of the dissent’s approach are

disturbing. As we have emphasized, RLA preemption

presents, at bottom, a question of forum. But the dissent

would begin its analysis by rejecting Masserant’s state law

claim, and would thus usurp the role of the state forum from

the outset. The dissent would do so in the name of conflict

preemption, even though there is no possible interpretation of

the WFCA that would create a substantive “conflict” with the

RLA, as the RLA has no bearing on substantive state law

rights. Norris, 512 U.S. at 254. And the dissent would

conclude — notwithstanding a state agency ruling to the

contrary, our lack of jurisdiction over the underlying claim,

24

Schurke, 846 F.3d at 1085 (“The issue before us is not whether

Masserant is entitled to use her vacation leave, scheduled for December,

in May, to care for her sick child. Though that is what the case is all about,

it is not the issue posed for us. The issue before us is . . . whether the state

administrative board or the [CBA] grievance procedure ought to decide

. . . .”); Alaska Airlines, Inc. v. Schurke, No. C11-0616JLR, 2013 WL

2402944, at *7 (W.D. Wash. May 31, 2013) (“The court need not

determine whether Alaska’s restrictions on the use of banked vacation

time violated the WFCA and does not reach the merits of that issue. It is

sufficient that a court could determine that the WFCA independently

guaranteed Ms. Masserant the right to use her accrued leave, whatever the

source, for family leave.”).

34 ALASKA AIRLINES V. SCHURKE

and Masserant’s absence from the present action — that

Masserant’s interpretation of state law is invalid. The dissent

would then enjoin any further consideration of Masserant’s

WFCA claim by the state agency, thereby barring the only

body with jurisdiction over Masserant’s state law claim from

resolving it.25 As to Masserant, the end result is to force her

into a CBA-based claim absent from her complaint and

disclaimed by her legal representative. Cf. Caterpillar,

482 U.S. at 394–95 (“It is true that respondents . . . possessed

substantial rights under the collective [bargaining] agreement,

and could have brought suit under [the LMRA]. As masters

of the complaint, however, they chose not to do so.”). More

broadly, the end result is a break from any conventional

understanding of our federal system: The dissent would use

the RLA to enjoin the state agency from interpreting and

applying state law, thus allowing a federal court effectively

to police the development of substantive state law, and

inhibiting the state from creating precedent on the meaning of

its own statutes through the ordinary process of state court

appeals.

The dissent would presumably allow the state to

administer its own law if a WFCA claim were brought by a

worker not covered by a CBA. This special treatment of

CBA-covered workers reinforces the problems with the

25

The dissent’s approach would be just as objectionable had its state

law analysis come out the other way, affirming the state agency’s

conclusion that the Airline violated the WFCA. Either way, this court

would be deciding a state law issue not properly before it.

ALASKA AIRLINES V. SCHURKE 35

dissent’s analysis. First, as the same claim exists for workers

not covered by a CBA, the claim does not arise entirely from

the CBA and should not be completely extinguished. Lingle,

486 U.S. at 409 n.8, 413 n.12. Second, in using the RLA

specially to disfavor union-represented workers, the dissent

would replicate the very result the Supreme Court

unanimously rejected in Livadas. See Livadas, 512 U.S. at

116–17 & n.11. Like the NLRA preemption at issue in

Livadas, RLA preemption cannot result in subjecting union-

represented workers to a parallel system of substandard state

law rights. See 45 U.S.C. § 151a(2); Livadas, 512 U.S. at

113–14; see also Metro. Life, 471 U.S. at 756; Burnside,

491 F.3d at 1068–69.

In sum, the only question we are asked here is who

decides Masserant’s claim — L&I or the labor arbitrator.26

The answer cannot be the Ninth Circuit. L&I and the labor

arbitrator have separate and non-overlapping competencies,

26

The dissent expresses concern about plaintiffs frivolously asserting

independent state law rights so as to evade the jurisdiction of the

grievance and arbitration mechanism. Usually, of course, we assume state

bodies are capable of applying federal law, including RLA preemption

principles, of their own accord, without the need for a federal injunction.

In any event, there is no realistic possibility of evasion. If a state law

right is frivolously asserted, the plaintiff’s claim will be dismissed by the

state body with jurisdiction over it. Furthermore, the usually short

limitations period for filing an RLA minor dispute grievance will almost

surely run in the interim. An employee has no incentive to forego a

possibly meritorious CBA claim in favor a frivolous state action.

36 ALASKA AIRLINES V. SCHURKE

and each must be respected.27 See Steelworkers I, 363 U.S. at

568.

E

Finally, although, for the reasons given, the merits are not

ours to decide,28 we observe that the dissent’s reading of

27

Notably, even if the WFCA claim required resolution of a CBA

dispute, the claim would still not arise entirely from the CBA, and thus

would not be fully extinguished by the RLA. The claim would be

preempted only to the extent necessary to ensure CBA construction

though grievance and arbitration. Lingle, 486 U.S. at 413 n.12; see also,

e.g., Matson, 840 F.3d at 1135. Accordingly, assuming the elements of

injunctive relief could be satisfied, Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7, 22 (2008); eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388,

391 (2006); All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th

Cir. 2011), the proper approach would be to enjoin L&I only from

construing any terms of the CBA. See Kobold, 832 F.3d at 1034. We note

also that, in light of the Anti-Injunction Act, federal courts are likely

barred from issuing injunctions where proceedings purportedly subject to

RLA preemption are pending before a state court. See 28 U.S.C. § 2283;

Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 294

(1970).

28

The dissent cites Rawson as an example of the Supreme Court

reaching its own conclusions regarding the validity under state law of a

state law claim. But in Rawson, the Supreme Court accepted the Idaho

Supreme Court’s view of state law rights, and disagreed only as to the

implications of the Idaho Supreme Court’s holding for LMRA § 301

preemption. Rawson, 495 U.S. at 370–71.

The dissent similarly cites Burnside as an example of a federal court’s

authority to construe state law in an RLA or LMRA § 301 preemption

analysis. In Burnside, however, the question addressed was a

jurisdictional one — complete preemption — not here applicable. In that

context, we determined only that the interpretation the employer suggested

was entirely implausible. Burnside, 491 F.3d at 1063 (concluding that

“the final choice of language in [the regulation] means what it says rather

ALASKA AIRLINES V. SCHURKE 37

Washington law is at the very least highly debatable. It is

undisputed that Masserant’s scheduled vacation was

immediately available to her for several purposes, including

personal medical leave, maternity leave, or bereavement

leave. So the statutory right to freedom in “choice of leave”

may well be implicated. Wash. Rev. Code § 49.12.270(1).

On this point, the L&I guidance regarding the WFCA,

published in 2009, is informative. It explains that employees

“who have access to paid leave for themselves” also have

“full access . . . to this leave to care for a sick family

member.” State of Wash., Dep’t of Labor and Indus., Emp’t

Standards, Frequently Asked Questions About the Family

Care Act, Question 17 (December 3, 2009); see also Wash.

Rev. Code § 49.12.265(5) (“‘Sick leave or other paid time

off’ means time allowed . . . to an employee for illness,

vacation, and personal holiday.”). Masserant’s claim appears

consistent with this guidance; her banked vacation days were

available to her for unscheduled paid leave for herself.

The same L&I guidance states that CBA provisions

“concerning the use of leave, such as . . . advance scheduling

than the opposite of what it says,” and observing that the explanation

relied upon by the employer was a scrivener’s error “incorrectly

paraphras[ing] the [regulatory] language”). Once the jurisdictional

question in Burnside was answered in the negative, we ordered the merits

determination remanded to state court. Id. at 1074. That an analysis with

jurisdictional implications should invite a threshold inquiry into the

plausibility of the parties’ views of state law is an unremarkable facet of

federal law. See, e.g., Am. W. Airlines, Inc. v. Nat’l Mediation Bd.,

119 F.3d 772, 775 (9th Cir. 1997) (holding, in the context of RLA

representation disputes, that “a court may only ‘peek at the merits’ in

order to determine if the [National Mediation Board] committed a

constitutional violation or [an] egregious violation of the RLA” that would

allow for judicial review of the Board’s decision).

38 ALASKA AIRLINES V. SCHURKE

of vacation[,] may still be applied.” But Masserant did

comply with the CBA’s requirement for the advance

scheduling of vacation, just as the WFCA instructs. Wash.

Rev. Code § 49.12.270(1) (“The employee taking leave . . .

must comply with the terms . . . applicable to the leave,

except for any terms relating to the choice of leave.”). She

then sought to use her advance-scheduled leave in accordance

with her statutory right to flexibility in using earned leave for

a different purpose than that assigned by her terms of

employment. To require Masserant to do any more — for

example, to require that she predict and preschedule her son’s

emergency medical needs half a year before they occurred —

would seem to undermine the WFCA’s freedom from

restrictions on “choice of leave.” See State v. Keller,

143 Wash. 2d 267, 277 (2001) (“Statutes must be construed

so that all language is given effect with no portion rendered

meaningless or superfluous.”); see also State of Wash., Dep’t

of Labor and Indus., Emp’t Standards, Frequently Asked

Questions About the Family Care Act, Question 9 (Aug. 6,

2014) (“While the employer is permitted to establish an

advanced scheduling policy generally, the policy cannot bar

the employee from using vacation leave for Family Care Act

purposes without violating the choice of leave provision.”).

The state agency and state courts with jurisdiction over

Masserant’s claim and the Airline’s appeal are, of course, the

bodies here entrusted with interpreting and applying state

law. Under our ruling, they will have both the first and the

last word as to what the WFCA means. Our observations on

the subject are meant only to show that L&I’s interpretation

has considerable grounding in the statute’s language and

purpose.

ALASKA AIRLINES V. SCHURKE 39

III

Masserant’s state law claim neither arises entirely from

the CBA nor requires a construction of it. It is therefore not

preempted under the RLA. The district court’s order on

summary judgment is AFFIRMED.

IKUTA, Circuit Judge, joined by TALLMAN, CALLAHAN,

BEA, and M. SMITH, Circuit Judges, dissenting:

The preemptive scope of the Railway Labor Act (RLA) is

clear: when resolution of a state-law cause of action requires

interpretation or application of a collective bargaining

agreement, it constitutes a “minor dispute” that must be

resolved through the RLA’s mandatory arbitral mechanism.

See Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 253

(1994). Instead of applying this rule, the majority imposes an

unprecedented constraint that effectively eviscerates federal

court review. The majority holds that in conducting an RLA

preemption analysis, a federal court may not consider the

nature and scope of the state cause of action (what the

Supreme Court calls the cause of action’s “legal character”)

but must limit itself to determining whether the plaintiff has

pleaded a claim that constitutes a minor dispute. Because this

constraint is directly contrary to decades of the Supreme

Court’s preemption decisions and impairs or extinguishes

RLA preemption, I dissent.

I

Because the majority fails to include pertinent

information about the collective bargaining agreement, the

40 ALASKA AIRLINES V. SCHURKE

nature of Masserant’s complaint before the agency, and the

proceedings in federal court, a fuller description of the facts

is set out below.

Laura Masserant is a flight attendant with Alaska

Airlines, a federally regulated common carrier operating

domestic and international flights that employs over three

thousand flight attendants nationwide. Alaska Airlines’s

flight attendants are represented by the Association of Flight

Attendants-Communication Workers of America, AFL-CIO

(AFA). In accordance with the provisions of the RLA,

Alaska Airlines and AFA entered into a collective bargaining

agreement (CBA) detailing numerous aspects of the

employment relationship. Among other provisions, the CBA

covers sick leave, vacations, and leaves of absence. These

provisions are critical to ensuring that Alaska Airlines can

meet Federal Aviation Administration (FAA) minimum crew-

staffing requirements for each of its thousands of daily

flights.

Under the CBA, flight attendants accrue sick leave based

on the amount they work, including the number of flights

staffed and the flight mileage. Flight attendants may use sick

leave in a host of situations defined by the CBA, as well as

“pursuant to applicable State law and/or Company policy.”

Alaska Airlines, headquartered in Washington state, interprets

this provision to mean that flight attendants can use sick leave

to care for qualifying family members under the Washington

Family Care Act (WFCA), Wash. Rev. Code § 49.12.270(1).

In addition to sick leave, flight attendants receive paid

vacations. The CBA sets forth how vacations days are

scheduled in a detailed process. By October 1 of each year,

Alaska Airlines posts the list of available vacation times.

ALASKA AIRLINES V. SCHURKE 41

Flight attendants have fifteen days in which to sign up for

available vacation periods, and vacation days are awarded for

the following year based on these preferences and the flight

attendant’s seniority. Once vacation days are assigned, a

flight attendant may trade these days with other flight

attendants, subject to certain limitations. Flight attendants

may also request early vacation pay, though the vacation days

themselves remain scheduled as unpaid days off.

The CBA enumerates instances when an employee may

use vacation time outside of the scheduled period. Among

other things, a flight attendant may use sick leave or vacation

time to cover certain medical leaves of absence, maternity

leaves of absence, parental leaves of absence, and

bereavement leaves of absence. Under Alaska Airlines’s

interpretation of the CBA and longstanding practice, flight

attendants may not otherwise reschedule vacation. For

example, Alaska Airlines contends flight attendants may not

reschedule vacation time to care for themselves or a sick

family member.1

The CBA also contains procedures for resolving disputes

as to the meaning of any of the terms in the CBA concerning

“rates of pay, rules or working conditions.” As required by

the RLA, 45 U.S.C. § 184, the CBA establishes a multi-stage

process for resolving disputes concerning the interpretation

or application of the CBA, culminating in mandatory

arbitration before a neutral board of adjustment. Decisions by

this board are “final and binding upon the parties.”

1

If flight attendants take absences that do not meet the criteria

specified in the CBA, they incur attendance points, which may become the

basis for disciplinary action.

42 ALASKA AIRLINES V. SCHURKE

In October 2010, Masserant signed up for her preferred

2011 vacation schedule. At the beginning of 2011, Masserant

was awarded four vacation days in January, and seven in each

of February, April, November, and December. As allowed by

the CBA, Masserant took her four paid vacation days in

January, and then requested early vacation pay for the days

scheduled in February, April, and November. Masserant was

therefore left with only seven paid vacation days—all

scheduled for December.

On May 20, 2011, Masserant needed time off to care for

her son, and requested sick leave to cover a two-day trip from

May 21–22. Alaska Airlines informed her that she did not

have sick leave available for the entire two-day trip, and she

was not entitled to reschedule her paid vacation days in

December to cover the absence. As a result, she would

receive attendance points for an emergency absence.

Ignoring the CBA’s grievance procedures for challenging

Alaska Airlines’s implementation of the contract’s sick leave

and vacation policy, Masserant, supported by her Union,

instead filed a complaint with the Washington Department of

Labor & Industries (L&I) on June 16, 2011. In her complaint

to L&I, Masserant challenged Alaska Airlines’s application

of its sick leave policy, arguing that it had both failed to

credit her for sick leave accrued in May and failed to let her

use accrued sick leave to cover a portion of her absence.

Masserant also challenged Alaska Airlines’s application of

the CBA’s vacation policy, stating: “I asked my company to

ALASKA AIRLINES V. SCHURKE 43

use my remaining week of vacation for this occurrence. This

is earned time that I was denied to use.”2

In response to L&I’s investigation of Masserant’s

complaint, Alaska Airlines explained that reliable attendance

in conformance with FAA safety regulations requiring

minimum crew staffing for every flight was vital to “deliver

on its mission,” and gave details regarding its complex

bidding process for vacations. According to Alaska Airlines,

under the CBA, “[f]light attendants are not permitted to use

vacation on an unscheduled basis when they get sick,” and

therefore “it is consistent with the WFCA that the flight

attendant not be able to use vacation when a family member

gets sick.”

L&I first acknowledged its “position” that “any policy

(including advanced vacation scheduling and medical

verification) are allowable as long as they don’t relate to the

choice of leave.” However, L&I concluded that Alaska

Airlines’s interpretation of the CBA was undercut by the fact

that “[t]here are occasions when vacation time is ‘available’

for flight attendants that are not affected by the seniority

based bidding process.” Because flight attendants can use

“accrued sick leave and/or vacation leave” on an unscheduled

basis for medical absences, maternity leave, and bereavement

leave, L&I was “troubled” that paid vacation was not offered

for family care. Therefore, L&I issued a Notice of Infraction,

dated May 31, 2012, stating that “Ms. Masserant was entitled

to seven (7) days of vacation,” and under WFCA, Alaska

2

At the time of the complaint, Masserant was president of the local

AFA chapter, and was well aware that AFA and Alaska Airlines were

engaged in discussions regarding whether the CBA allowed a flight

attendant to use vacation time to care for a sick child.

44 ALASKA AIRLINES V. SCHURKE

Airlines must allow her to use this vacation leave to care for

her sick child. It ordered Alaska Airlines to pay a $200

penalty.3

In March 2012, Alaska Airlines filed an amended

complaint in district court against L&I.4 The complaint

sought preliminary and permanent injunctive relief enjoining

L&I from continuing to investigate or enforce Masserant’s

complaint. In support of this request for relief, the complaint

alleged that the RLA preempted such enforcement efforts

because the mechanisms provided in the CBA were

Masserant’s exclusive means of resolving this dispute. The

district court granted AFA’s motion to intervene on behalf of

Alaska Airlines’s employees in order to defend their

members’ rights to enforce WFCA using L&I’s procedures.

The parties then filed cross-motions for summary

judgment on the question whether the RLA preempted

Masserant’s state-law cause of action and required her to

resolve this dispute through the CBA’s dispute resolution

3

Alaska Airlines filed an administrative appeal of the Notice of

Infraction, and AFA petitioned to intervene, but the appeal was

subsequently dismissed without prejudice pending the resolution of Alaska

Airline’s action in federal court.

4

Alaska Airlines first filed a complaint for injunctive and declaratory

relief to enjoin L&I from processing flight attendants’ WFCA complaints

and to declare such complaints preempted in all instances under the RLA.

(Formally, the first complaint, as well as the amended complaint, named

Judy Schurke, in her official capacity as Director of L&I, and Elizabeth

Smith, in her official capacity as Employment Standards Program

Manager of L&I, as defendants.) The district court dismissed the

complaint on the ground that Alaska Airlines’s claims were not fit for

judicial decision, because Ninth Circuit case law requires analysis of RLA

preemption on a case-by-case basis.

ALASKA AIRLINES V. SCHURKE 45

procedures. In district court, L&I no longer suggested that

Masserant was entitled to use vacation time to care for a sick

child in this case because the CBA allowed vacation time to

be used for medical leave and other purposes. Instead, L&I

and AFA argued that the question whether the CBA allowed

Masserant to use vacation time for her own illness or that of

her child was not material because WFCA gave Masserant an

independent right to use her vacation days at any time,

whether scheduled or not. The district court ruled in favor of

AFA and L&I, concluding that WFCA “may” grant

Masserant an independent right to use her December vacation

time to care for her sick child in May, and therefore the

complaint was not preempted by the RLA.

On appeal, Alaska Airlines argues that Masserant’s claim

raises the sort of dispute that has to be determined through the

CBA’s dispute resolution process. In response, L&I and

AFA argue that as a matter of law, WFCA gives employees

a non-negotiable right, independent of the CBA, to use

vacation days to care for sick family members “irrespective

of any limitations that an employer would attempt to put on

that leave,” including “any advance scheduling requirements

for the flight attendant’s vacation.” As explained below, L&I

and AFA’s litigating position is not supported by the plain

language of the statute and regulations, and therefore

resolving Masserant’s claim requires the interpretation and

application of the CBA.

II

The simple question before us is whether the RLA

preempts Masserant’s cause of action because it is a minor

dispute that must be channeled through the RLA’s mandatory

arbitral mechanism. See Hawaiian Airlines, 512 U.S. at 253.

46 ALASKA AIRLINES V. SCHURKE

The majority fails to understand or apply the Supreme

Court’s direction for determining whether a state-law cause

of action is preempted by the RLA, and so reaches the wrong

conclusion.

A

Congress enacted the RLA in 1926 “to promote stability

in labor-management relations” between railroad companies

and their employees. Atchison, Topeka & Santa Fe Ry. Co. v.

Buell, 480 U.S. 557, 562–63, 562 n.9 (1987) (quoting Union

Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 94 (1978)).5 To

accomplish these goals, “the RLA establishes a mandatory

arbitral mechanism for ‘the prompt and orderly settlement’ of

two classes of disputes,” major and minor. Hawaiian

Airlines, 512 U.S. at 252 (quoting 45 U.S.C. § 151a). Under

the RLA, all disputes arising out of the interpretation or

application of an air carrier’s collective bargaining agreement

are minor disputes that must proceed through “RLA

mechanisms, including the carrier’s internal dispute-

resolution processes and an adjustment board established by

the employer and the unions.” Id. at 253; see also 45 U.S.C.

§ 153(i).

The RLA’s mandatory arbitral mechanism is the “heart of

the Railway Labor Act,” Bhd. of R.R. Trainmen v.

Jacksonville Terminal Co., 394 U.S. 369, 377–78 (1969), and

the key mechanism for “minimizing interruptions in the

Nation’s transportation services,” Int’l Ass’n of Machinists,

AFL-CIO v. Cent. Airlines, Inc., 372 U.S. 682, 687 (1963).

Accordingly, the Supreme Court inferred that Congress

5

The RLA was amended in 1936 to cover the air transportation

industry. 45 U.S.C. §§ 181–188.

ALASKA AIRLINES V. SCHURKE 47

intended the RLA’s mandatory arbitral mechanism to be the

exclusive method for resolving minor disputes, and it

therefore has preemptive force. See Andrews v. Louisville &

Nashville R.R. Co., 406 U.S. 320, 322 (1972). A state-law

cause of action is preempted if it conflicts with the RLA’s

mandatory arbitral mechanism for resolving minor disputes.

See Hawaiian Airlines, 512 U.S. at 252–53.

The Supreme Court provides for a straightforward

preemption analysis in the RLA context (as well as under

§ 301 of the Labor Management Relations Act (LMRA)).6 A

state-law cause of action that is “founded directly on rights

created by collective-bargaining agreements” or that involves

claims “substantially dependent on analysis of a collective-

bargaining agreement,” is governed by federal law.

Caterpillar Inc. v. Williams, 482 U.S. 386, 394 (1987)

(quoting Int’l Bhd. of Elec. Workers, AFL-CIO v. Hechler,

481 U.S. 851, 859 n.3 (1987)). When resolution of the state-

law claim involves “interpretation or application” of a

collective bargaining agreement, the claim is not independent

of the agreement, but constitutes a minor dispute that must be

resolved through the RLA’s mandatory arbitral mechanism.

45 U.S.C. § 153(i); Hawaiian Airlines, 512 U.S. at 252–53.

Similarly, when a state-law remedy “turn[s] on the

interpretation of a collective-bargaining agreement for its

application,” the remedy is preempted by the RLA. Lingle v.

Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407 n.7 (1988);

see also Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,

210–11, 217–18 (1985). Finally, even “if a law applied to all

state workers but required, at least in certain instances,

collective-bargaining agreement interpretation, the

6

The Supreme Court applies the same preemption standard for the

RLA and § 301 of the LMRA. Hawaiian Airlines, 512 U.S. at 263.

48 ALASKA AIRLINES V. SCHURKE

application of the law in those instances would be pre-

empted.” Lingle, 486 U.S. at 407 n.7.

By contrast, when a state law establishes substantive

rights that are independent of a collective bargaining

agreement, the enforcement of such rights under state law

may not be preempted. See, e.g., Colo. Anti-Discrimination

Comm’n v. Cont’l Air Lines, Inc., 372 U.S. 714, 724 (1963);

Terminal R.R. Ass’n of St. Louis v. Bhd. of R.R. Trainmen,

318 U.S. 1, 5–7 (1943). Further, “the Supreme Court has

distinguished between claims that require interpretation or

construction of a labor agreement and those that require a

court simply to ‘look at’ the agreement.” Balcorta v.

Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1108 (9th

Cir. 2000) (citing Livadas v. Bradshaw, 512 U.S. 107, 123–26

(1994)). “[W]hen the meaning of contract terms is not the

subject of dispute, the bare fact that a collective-bargaining

agreement will be consulted in the course of state-law

litigation plainly does not require the claim to be

extinguished.” Livadas, 512 U.S. at 124.7

B

WFCA gives employees a state-law right which, by its

terms, is based on rights provided by a collective bargaining

7

Although we have distinguished between merely referencing a

collective bargaining agreement and interpreting its terms, we do not

otherwise define the term “interpret” narrowly. Cf. Maj. Op. at 19. Under

the RLA, minor disputes are the disputes “growing out of grievances or

out of the interpretation or application of agreements concerning rates of

pay, rules, or working conditions.” 45 U.S.C. § 153(i) (emphasis added).

Any state-law cause of action that requires a court to determine how a

collective bargaining agreement applies to the facts of a case is a minor

dispute that is preempted. See Hawaiian Airlines, 512 U.S. at 253.

ALASKA AIRLINES V. SCHURKE 49

agreement.8 Wash. Rev. Code § 49.12.270. “If, under the

terms of a collective bargaining agreement or employer

policy applicable to an employee, the employee is entitled to

sick leave or other paid time off,” then the employee may use

the employee’s “choice of sick leave or other paid time off”

to care for a qualifying relative. Id. § 49.12.270(1).9 An

employee who takes leave “under the circumstances

8

Washington Revised Code section 49.12.270 provides, in full:

(1) If, under the terms of a collective bargaining

agreement or employer policy applicable to an

employee, the employee is entitled to sick leave or

other paid time off, then an employer shall allow an

employee to use any or all of the employee’s choice of

sick leave or other paid time off to care for: (a) A child

of the employee with a health condition that requires

treatment or supervision; or (b) a spouse, parent, parent-

in-law, or grandparent of the employee who has a

serious health condition or an emergency condition. An

employee may not take advance leave until it has been

earned. The employee taking leave under the

circumstances described in this section must comply

with the terms of the collective bargaining agreement or

employer policy applicable to the leave, except for any

terms relating to the choice of leave.

(2) Use of leave other than sick leave or other paid time

off to care for a child, spouse, parent, parent-in-law, or

grandparent under the circumstances described in this

section shall be governed by the terms of the

appropriate collective bargaining agreement or

employer policy, as applicable.

9

“Sick leave or other paid time off” is defined, in part, as “time

allowed under the terms of an appropriate state law, collective bargaining

agreement, or employer policy, as applicable, to an employee for illness,

vacation, and personal holiday.” Wash. Rev. Code § 49.12.265(5).

50 ALASKA AIRLINES V. SCHURKE

described in this section must comply with the terms of the

collective bargaining agreement or employer policy

applicable to the leave, except for any terms relating to the

choice of leave.” Id. (emphasis added). In other words, if an

employee is entitled to sick leave or other paid time off under

the terms of a collective bargaining agreement, WFCA gives

that employee the right to choose either sick leave or other

paid time off for qualifying family care; the employee must

otherwise comply with all other terms of the collective

bargaining agreement.

L&I’s published regulations directly track the language of

the statute, see Wash. Admin. Code § 296-130-030, and a

number of guidance documents provide a consistent

interpretation of the statutes and regulations. One such

document, published in December 2009, explains that the

state-law right provided to employees under WFCA gives

employees who “have access to paid leave for themselves”

the right to “full access to any and all of this leave to care for

a sick family member.”10 State of Wash., Dep’t of Labor &

10

The pertinent paragraph in the guidance document states:

What is meant by the provision that says the employer

must allow an employee to use any and all of the

employee’s choice of sick leave or other paid time off

to care for a sick family member?

Employees must have access to any available sick leave

or other paid time off to care for a sick family member.

If employees have access to paid leave for themselves,

then they must have full access to any and all of this

leave to care for a sick family member. This law

directs the employer to allow employees the choice of

available leave to care for a sick family member.

Employers must now allow use of sick leave and other

ALASKA AIRLINES V. SCHURKE 51

Indus., Emp’t Standards, Frequently Asked Questions About

the Family Care Act, Question 17 (Dec. 3, 2009). According

to L&I, state law imposes on employers an independent

obligation of allowing “use of sick leave and other paid time

off to care for a sick family member even if a pre-existing

collective bargaining agreement or employer policy

prohibited such use.” Id. This right is limited, however, as

the guidance explains: “provisions of collective bargaining

agreements or employer policies regarding the accumulation

of leave and other provisions concerning the use of leave,

such as medical certification and advance scheduling of

vacation may still be applied.” Id. (emphasis added). In

other words, advanced scheduling of vacation time is a term

“of the collective bargaining agreement or employer policy

applicable to the leave” that an employee “must comply with”

in order to take leave under WFCA. See Wash. Rev. Code

§ 49.12.270(1). L&I originally adopted this interpretation in

this case, acknowledging that “any policy (including

advanced vacation scheduling and medical verification) are

allowable as long as they don’t relate to the choice of leave.”

In the course of litigating Masserant’s claim, L&I

proffered a new interpretation of the statute, arguing that

paid time off to care for a sick family member even if

a pre-existing collective bargaining agreement or

employer policy prohibited such use. However,

provisions of collective bargaining agreements or

employer policies regarding the accumulation of leave

and other provisions concerning the use of leave, such

as medical certification and advance scheduling of

vacation may still be applied.

State of Wash., Dep’t of Labor & Indus., Emp’t Standards, Frequently

Asked Questions About the Family Care Act, Question 17 (Dec. 3, 2009).

52 ALASKA AIRLINES V. SCHURKE

WFCA “confers on employees the non-negotiable right,

independent of collective bargaining agreements, to choose

to use any earned leave provided by a collective bargaining

agreement to care for sick family members, irrespective of

any limitations that an employer would attempt to put on that

leave—including any limitation that Alaska might put on a

flight attendant’s use of leave for the flight attendant’s own

illness or any advance scheduling requirements for the flight

attendant’s vacation.”11

L&I’s interpretation, proffered for the first time as a

litigation position, must be rejected because it is contrary to

the language of the statute, the regulations, and L&I’s own

2009 guidance document, all of which require employees to

comply with the terms of the collective bargaining agreement

“except for any terms relating to choice of leave.” Wash.

Rev. Code § 49.12.270(1) (emphasis added); see Wash.

Admin. Code § 296-130-030. Contrary to L&I’s litigation

11

In August 2014 (two years after issuing the Notice of Infraction,

and one year after the district court’s decision in this case), L&I issued a

modified guidance document, which now states: “[I]f an employer policy

requires advanced scheduling for vacation leave, the policy would be

inapplicable to an employee who chooses to use vacation leave to take

care of a sick family member. While the employer is permitted to establish

an advanced scheduling policy generally, the policy cannot bar the

employee from using vacation leave for Family Care Act purposes

without violating the choice of leave provision.” State of Wash., Dep’t

of Labor & Indus., Emp’t Standards, Frequently Asked Questions

About the Family Care Act, Question 9 (Aug. 6, 2014),

http://www.lni.wa.gov/WorkplaceRights/files/policies/esc10.pdf. This

document does not provide any reasoning or statutory interpretation; nor

does L&I explain the reasons for its sharp change from earlier views.

Furthermore, as L&I recognizes in its own brief, the FAQs “do ‘not

replace the applicable RCW and WAC standards[,]’ because general

policies do not trump the plain language of the statute.”

ALASKA AIRLINES V. SCHURKE 53

position, nothing in WFCA gives employees the right to use

vacation leave to care for a qualifying relative when that

leave is unavailable under the collective bargaining

agreement. In the RLA and § 301 context, the Supreme

Court has declined to defer to an agency interpretation that

“simply slips any tether to [state] law,” where an agency’s

“late-blooming rationales” create an “awkwardly inexact”

overlap between the agency’s interpretation and “what the

state legislature has enacted into law.” Livadas, 512 U.S. at

126, 128. Similarly, in Burnside v. Kiewit Pacific Corp., we

rejected an agency’s published interpretation of a wage order

on the ground that “it is the plain language of an actual,

enacted regulation which must govern, not language that

appears in the underlying rationale.” 491 F.3d 1053, 1064

(9th Cir. 2007).

The Court has adopted a similar approach in considering

federal agency interpretations of federal statutes, and does not

defer to agency interpretations that are contrary to the

language of the statute, are “nothing more than ‘a convenient

litigating position,’” or that constitute “a ‘post hoc

rationalizatio[n] . . . seeking to defend past agency action

against attack.’” Christopher v. SmithKline Beecham Corp.,

567 U.S. 142, 155 (2012) (first alteration in original) (first

quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,

213 (1988); then quoting Auer v. Robbins, 519 U.S. 452, 462

(1997))). Washington courts take a similar approach. See

Waste Mgmt. of Seattle, Inc. v. Utils. & Transp. Comm’n,

123 Wash. 2d 621, 627–28 (1994) (Washington courts “will

not defer to an agency determination which conflicts with the

statute”); Cerrillo v. Esparza, 158 Wash. 2d 194, 205–06

(2006) (holding that absent ambiguity, Washington courts do

not defer to agency interpretations; courts will “glean the

legislative intent from the words of the statute itself,

54 ALASKA AIRLINES V. SCHURKE

regardless of contrary interpretation by an administrative

agency” (quoting Agrilink Foods, Inc. v. State, Dep’t of

Revenue, 153 Wash. 2d 392, 396 (2005))).

In short, to plead a WFCA claim, employees must show

they are entitled to sick leave or other paid time off under the

terms of their collective bargaining agreement; only if that

threshold qualification is met are employers obliged to let

employees choose to use the time off for qualifying family

care.

C

Applying these principles here, Masserant must show that

she is “entitled to” paid time off “under the terms of [the]

collective bargaining agreement,” and that she “compl[ied]

with the terms of the collective bargaining agreement . . .

applicable to the leave,” Wash. Rev. Code § 49.12.270(1),

including any requirements applicable to rescheduling

vacation time. Masserant’s WFCA claim therefore turns on

whether she was entitled to reschedule her December

vacation time under the terms of the CBA.12 If answering this

threshold question requires interpretation or application of the

CBA, it must be resolved through the RLA’s mandatory

arbitral mechanism before she can exercise the state-law right

to choose.

12

The majority asserts that whether Masserant is “entitled” to

vacation time is a state-law dispute because the term is “contained within

the WFCA,” and therefore outside the scope of minor disputes. Maj. Op.

at 31. This assertion is meritless. WFCA states that an employee is

“entitled to” paid time off only when the “terms of a collective bargaining

agreement” so provide. Wash. Rev. Code § 49.12.270(1). Unless a mere

look at the CBA establishes Masserant’s entitlement, it is necessary to

interpret the CBA’s terms and apply them to Masserant’s situation.

ALASKA AIRLINES V. SCHURKE 55

The CBA does not expressly address an employee’s

entitlement to reschedule vacation time. Nor did the parties

argue to the district court or in their briefs on appeal that

Alaska Airlines’s practice—not to allow such rescheduling of

vacation time to care for a sick relative—is an implied term

of the CBA based on “the parties’ ‘practice, usage and

custom.’” Consol. Rail Corp. v. Ry. Labor Execs.’ Ass’n

(Conrail), 491 U.S. 299, 311 (1989) (quoting Transp. Union

v. Union Pac. R.R. Co., 385 U.S. 157, 161 (1966)).

At oral argument, L&I and AFA asserted for the first time

that they are willing to concede that the CBA does not allow

flight attendants to reschedule vacation time to take care of

family members.13 Given their concession, they argue, it is

not necessary to consult the CBA to determine whether

Masserant was entitled to reschedule her December vacation

time.

This argument must be rejected. As a threshold matter,

neither AFA nor L&I have authority to make such a

concession on Masserant’s behalf. The question at issue is

whether Masserant, not AFA or L&I, must pursue her claim

using the RLA’s mandatory arbitral mechanism. In her

complaint to L&I, Masserant claimed that Alaska Airlines

refused her request to use December vacation time to care for

her sick child in May. She did not concede that she had no

such right under the CBA. Neither AFA nor L&I represent

13

This represents a change in L&I’s position, which argued to the

district court that the CBA does not address the question whether the CBA

allows flight attendants to reschedule vacation time to take care of family

members. AFA argued to the district court that the CBA does not allow

such rescheduling, but in its brief on appeal backed off from this position,

stating that its argument was solely for purposes of the summary judgment

motion and the issue is irrelevant on appeal.

56 ALASKA AIRLINES V. SCHURKE

Masserant in this appeal, and neither claims to have authority

to waive Masserant’s access to the CBA’s dispute resolution

mechanism. Moreover, although Alaska Airlines states it has

long had the practice of not allowing flight attendants to

reschedule vacation time to care for sick family members,

unilateral conduct by an employer is not automatically

incorporated as an implied term of the CBA. Id. at 311.

Rather, as with other disputes requiring an interpretation of

the CBA, the question whether a particular entitlement or

duty constitutes “the common law of a particular industry or

of a particular plant” such that it has become part of the CBA

must be determined through the arbitral mechanism. Id. at

311–12 (quoting Transp. Union, 385 U.S. at 161).

In short, the question whether Masserant is entitled to

reschedule her vacation time under the terms of the CBA

cannot be resolved by merely looking to the agreement, but

requires interpretation and application of the CBA.

Therefore, it is a quintessential minor dispute that must be

channeled through the RLA’s mandatory arbitral mechanism.

See Hawaiian Airlines, 512 U.S. at 252–53.

D

This conclusion is in accord with the purposes of the

RLA. In considering common carriers with nationwide

operations, Congress recognized the importance of avoiding

“any interruption to commerce or to the operation of any

carrier engaged therein,” by ensuring that disputes would be

settled consistently and promptly through the RLA’s

mandatory arbitral mechanism. 45 U.S.C. § 151a. Here,

Alaska Airlines argues that flight attendant absences pose

unique concerns in the airline industry. Under FAA

regulations, a plane cannot take off without the requisite

ALASKA AIRLINES V. SCHURKE 57

number of flight attendants on board; thus, ensuring

employee attendance is critical to the basic operations of an

air carrier. While Alaska Airlines retains and pays for flight

attendants to be on “reserve” to cover for unexpected

absences, those reserves are not unlimited. Such backup

measures are not intended to ensure consistent day-to-day

operations. For that, Alaska Airlines relies on its negotiations

with AFA for detailed scheduling of leave, attendance, and

absence, as embodied in the CBA. A cornerstone of these

negotiations is the mandatory arbitral mechanism, designed

for “the prompt and orderly settlement” of disputes

concerning the CBA’s negotiated leave terms. Id. If state

courts could apply the potentially conflicting state law of

each of the fifty states to interpret the CBA’s terms and

conditions, the congressional goal of consistent, reliable

operation would be threatened, and the application of state

law “might lead to inconsistent results since there could be as

many state-law principles as there are States.” Lingle,

486 U.S. at 405–06.

III

Instead of applying this straightforward analysis, the

majority circumvents Supreme Court precedent and offers a

series of disconnected arguments for why we must deem

Masserant’s claim to be a question of state law that is not a

minor dispute. First, the majority notes that RLA preemption

is a type of “forum preemption,” which considers whether a

particular cause of action must be heard in a state or federal

forum. Maj. Op. at 24–25. Based on this unexceptionable

observation, the majority leaps to the unsupported and

untenable argument that unlike “conflict preemption,” which

allows consideration of state law, RLA preemption precludes

any consideration of the state law governing a cause of

58 ALASKA AIRLINES V. SCHURKE

action. Maj. Op. at 21–24. Any analysis of the nature and

scope of the state-law cause of action, the majority asserts, is

the same as reaching the merits of the state-law claim. Maj.

Op. at 32–33, 36–37. This approach, the majority urges, is

contrary to forum preemption analysis, which allows a court

to decide only who the decisionmaker will be. Maj. Op. at

35–36. According to the majority, a federal court’s “only job

is to decide whether, as pleaded,” a claim is independent of

the CBA. Maj. Op. at 24 (emphasis added). As explained

below, each of these conclusions is not only baseless and

illogical, but contrary to Supreme Court and our own

precedent.

A

The majority’s main argument—that RLA preemption

precludes consideration of state law, Maj. Op. at 30–32—has

no support in any Supreme Court or Ninth Circuit precedent.

As the Supreme Court has framed it, to determine whether

“a state cause of action may go forward” or is instead

preempted by § 301, a court must consider the “legal

character” of a state-law claim. Livadas, 512 U.S. at

123–24.14 In the RLA and § 301 context, federal courts must

understand the claim’s legal character to determine whether

the state-law cause of action is “founded directly on rights

created by collective-bargaining agreements” or on claims

14

The majority concedes that courts must understand the legal

character of a state cause of action before it can determine whether the

cause of action must be channeled through the RLA’s mandatory arbitral

mechanism. Maj. Op. at 24, 29. But the majority does not attempt to

determine the legal character of Masserant’s WFCA claim or explain how

this determination should be accomplished.

ALASKA AIRLINES V. SCHURKE 59

“substantially dependent on analysis of a collective-

bargaining agreement.” Caterpillar Inc., 482 U.S. at 394

(quoting Hechler, 481 U.S. at 859 n.3). If it is, dispute

resolution is governed by the RLA or § 301. Id. As the

Supreme Court applies this test, the analysis involves

interpreting state law.

In United Steelworkers of America v. Rawson, for

instance, the survivors of miners who were killed in an

underground fire brought a state wrongful death action

against the union, claiming it had negligently performed an

inspection of the mine. 495 U.S. 362, 364 (1990). Although

the union had undertaken the inspection pursuant to a

collective bargaining agreement, the Idaho Supreme Court

held that the union had a state-law duty to perform a

reasonable inspection which “arose from the fact of the

inspection itself rather than the fact that the provision for the

Union’s participation in mine inspection was contained in the

labor contract.” Id. at 370–71. Therefore, the Idaho Supreme

Court “rejected the suggestion that there was any need to look

to the collective-bargaining agreement to discern whether it

placed any implied duty on the Union.” Id. at 370. Reading

this opinion in light of other state law, however, the Supreme

Court rejected the plaintiffs’ argument that their tort claim

was independent of the collective bargaining agreement. Id.

at 371. Based on its understanding of Idaho law, including

the state supreme court decision, the Supreme Court

concluded that the union’s duty of care arose out of its

contractual obligations. Id. Therefore, the plaintiffs could

not avoid preemption of their state cause of action “by

60 ALASKA AIRLINES V. SCHURKE

characterizing the Union’s negligent performance” as merely

a state-law tort. Id. at 371–72.15

In reaching this conclusion, the Court rejected Justice

Kennedy’s dissent, which argued that a state cause of action

is saved from preemption by § 301 so long as there is an

interpretation of state law that would allow it to operate

independently of a collective bargaining agreement. See id.

at 379 (Kennedy, J., dissenting) (arguing that because there

is a “possibility . . . that the respondents may prove” their

case “without relying on the collective bargaining

agreement,” the court should allow the respondents to “press

their state claims”). Further, the Court rejected Justice

Kennedy’s suggestion that “[i]f the Idaho Supreme Court,

after a trial on the merits, were to uphold a verdict resting on

the Union’s obligations under the collective-bargaining

agreement, we could reverse its decision.” Id. at 380. In

15

The majority attempts to distinguish Rawson on the ground that it

“disagreed only as to the implications of the Idaho Supreme Court’s

holding for LMRA § 301 preemption.” Maj. Op. at 36 n.28. This is

simply incorrect. Rawson carefully analyzed the Idaho Supreme Court’s

opinion on state tort law (the duty of care) to understand the nature and

scope of state law. Rawson, 495 U.S. at 371 (“Nor do we understand the

Supreme Court of Idaho to have held that any casual visitor in the mine

would be liable for violating some duty to the miners if the visitor failed

to report obvious defects to the appropriate authorities.”). Having

conducted its own analysis of state tort law, Rawson rejected the

plaintiffs’ claim that there was a colorable interpretation of state law

which would not require interpretation or application of a collective

bargaining agreement. Rather, it held that “[p]re-emption by federal law

cannot be avoided by characterizing the Union’s negligent performance

of what it does on behalf of the members of the bargaining unit pursuant

to the terms of the collective-bargaining contract as a state-law tort.” Id.

at 371–72. Therefore, the Court concluded that “this suit, if it is to go

forward at all, must proceed as a case controlled by federal, rather than

state, law.” Id. at 372.

ALASKA AIRLINES V. SCHURKE 61

other words, Rawson forecloses the majority’s view that a

federal court must defer to any proposed interpretation of

state law and allow a state-law claim to proceed on that

theory. Maj. Op. at 24. Rather, federal courts must analyze

state law to determine the legal character of the state-law

claim.

The Court takes a similar approach in determining the

preemptive force of ERISA, which “mirror[s] the pre-emptive

force of LMRA § 301.” Aetna Health Inc. v. Davila,

542 U.S. 200, 209 (2004). Like the RLA and § 301, ERISA

channels certain disputes into a congressionally mandated

mechanism and preempts state causes of action that interfere

with this mechanism.16 Id. at 208–09. The ERISA

preemption question asks whether a state-law claim falls

“within the scope” of ERISA’s civil enforcement remedy and

therefore “conflicts with the clear congressional intent to

make the ERISA remedy exclusive.” Id. at 209. To

determine whether a state-law claim falls within the scope of

ERISA’s exclusive civil enforcement mechanism, courts

“must examine respondents’ complaints, the statute on which

their claims are based . . ., and the various plan documents.”

Id. at 211 (emphasis added). The same is true in the RLA and

§ 301 context.

We have likewise construed the nature and scope of state

law to rule on preemption in our prior § 301 opinions. See

16

Thus the majority’s statement that “Davila has nothing to do with

the subject of the RLA or LMRA § 301 preemption analysis,” Maj Op. at

22 n.15, is unsupportable. ERISA protects a congressionally-mandated,

“comprehensive remedial scheme.” Davila, 542 U.S. at 217. Like the

RLA and § 301, ERISA seeks to enforce a federal pathway for resolving

disputes, and preempts state causes of action that conflict with that

pathway. Therefore, Davila is an apt comparison.

62 ALASKA AIRLINES V. SCHURKE

Burnside, 491 F.3d at 1064. In Burnside, an employee

covered by a collective bargaining agreement brought various

state-law claims against his employer based on the

employer’s failure to pay wages for time traveled between

company-designated meeting points and actual job sites. Id.

at 1056, 1058. The state regulation giving employees the

right to be compensated for compulsory travel time stated that

it applied “to any employees covered by a valid collective

bargaining agreement unless the collective bargaining

agreement expressly provides otherwise” (an “opt-out”

regulation). Id. at 1062 (quoting Cal. Code Regs. tit. 8,

§ 11160(5)(D)). But the agency with authority to construe

this law held it “does not apply to any employee covered by

a valid collective bargaining agreement unless the collective

bargaining agreement expressly provides otherwise” (an “opt-

in” regulation). Id. at 1063. Burnside viewed the

interpretation of this rule to be critical for determining

whether the employee could bring a state cause of action. If

the agency’s interpretation was correct, “the state-law rights

can be more readily viewed as existing only if the CBA says

so and as therefore dependent on the CBAs,” id. at 1064 n.11,

which would likely have led to the conclusion it was

preempted. Instead of accepting the agency’s interpretation,

Burnside construed the state law, concluded that the agency’s

interpretation of the regulation was incorrect, and held that

“[i]n any event, it is the plain language of an actual, enacted

regulation which must govern, not language that appears in

the underlying rationale.” Id. at 106417; see also Valles v. Ivy

17

The majority attempts to distinguish Burnside because it considered

the preemptive force of § 301 in a jurisdictional context. Maj. Op. at 36

n.28. As explained below, infra Section III.B., this distinction is

meritless. Indeed, given the majority’s reliance on the two-part test

adopted in Burnside, Maj. Op. at 18–19 (applying Burnside and

ALASKA AIRLINES V. SCHURKE 63

Hill Corp., 410 F.3d 1071, 1077 (9th Cir. 2005) (recognizing

that we “begin” § 301 preemption analysis “with an

examination of California statutes, regulations, and case

law”).

Accordingly, contrary to the majority, it is well

established that determining the legal character of a state

cause of action by interpreting the state law at issue is an

essential step in deciding the RLA preemption question.

B

In the absence of any Supreme Court or Ninth Circuit

support for its theory that a court may not consider state law

in determining whether a state cause of action constitutes a

minor dispute, the majority resorts to other arguments: it tries

and fails to identify a meaningful distinction between RLA

preemption and conflict preemption; cites inapposite out-of-

circuit cases; and analogizes to the inapplicable doctrines of

primary jurisdiction and contract analysis in the arbitration

context. Each of these efforts fails.

First, the majority argues that while courts consider state

law in determining “typical conflict preemption,” courts may

not do so in considering “RLA and LMRA § 301 preemption”

because they are instead “grounded in the need to protect the

proper forum for resolving certain kinds of disputes.” Maj.

subsequent cases that rely on Burnside for its preemption analysis), it is

baffling that the majority claims Burnside is “not here applicable.” Maj.

Op. at 36 n.28.

64 ALASKA AIRLINES V. SCHURKE

Op. at 21. This argument is meritless.18 In purporting to

distinguish between conflict preemption and forum

preemption, the majority misses the basic point that all

preemption flows from the Supremacy Clause, which dictates

that federal law “shall be the supreme Law of the Land.”

U.S. Const. art. VI, § 1, cl. 2. To be sure, the scope of

preemption is a matter of congressional intent, see Lueck,

471 U.S. at 208, and therefore the preemptive force of federal

legislation varies depending on that intent. We have used

shorthand to refer to our understanding of the preemptive

force of certain statutes, referring to Garmon preemption19

and Machinists preemption20 in the labor context, as well as

18

Indeed, the Court has never suggested that anything other than

ordinary conflict preemption principles apply, emphasizing that the

question under § 301 (and therefore under the RLA) is whether a state-law

claim conflicts with federal labor law. See Lueck, 471 U.S. at 209 (under

§ 301, federal courts must determine whether a state-law claim “conflicts

with federal law or would frustrate the federal scheme” (citation omitted));

Livadas, 512 U.S. at 120 (“In labor pre-emption cases, as in others under

the Supremacy Clause,” courts must decide if a state-law claim “conflicts

with or otherwise ‘stands as an obstacle to the accomplishment and

execution of the full purposes and objectives’ of the federal law.” (quoting

Brown v. Hotel Emps., 468 U.S. 491, 501 (1984))). The majority asserts

that Livadas illuminates a distinction between ordinary conflict

preemption and § 301 preemption. Maj. Op. at 25–28. Livadas does not

support the majority’s point. Rather, it merely recognizes that the NLRA

and § 301 have different preemptive effects. See Livadas, 512 U.S. at

116–17, 121–23. We, of course, agree that the two statutes and their

preemptive effects are distinct. Livadas does not hold, however, that a

proper interpretation of state law is irrelevant to the § 301 preemption

question.

19

San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959).

20

Lodge 76, Int’l Ass’n of Machinists & Aerospace Workers v. Wis.

Emp’t Relations Comm’n, 427 U.S. 132 (1976).

ALASKA AIRLINES V. SCHURKE 65

forum preemption, field preemption, conflict preemption,

express preemption, and the like. But such labels do not

change the basic principle of federal preemption, namely:

“Congress enacts a law that imposes restrictions or confers

rights on private actors; a state law confers rights or imposes

restrictions that conflict with the federal law; and therefore

the federal law takes precedence and the state law is

preempted.” Murphy v. Nat’l Collegiate Athletic Ass’n,

138 S. Ct. 1461, 1480 (2018).

For the same reason, the majority errs in attempting to

distinguish cases that considered the preemptive force of

federal statutes in a jurisdictional context. The same basic

preemption principles apply in the complete preemption

context, even though the question is jurisdictional. While we

are generally bound by the well-pleaded complaint rule,

“which provides that federal jurisdiction exists only when a

federal question is presented on the face of the plaintiff’s

properly pleaded complaint,” Balcorta, 208 F.3d at 1106, the

preemptive force of some federal statutes, such as § 301 of

the LMRA, is “so ‘extraordinary’ that it ‘converts an ordinary

state common-law complaint into one stating a federal claim

for purposes of the well-pleaded complaint rule,’” Caterpillar

Inc., 482 U.S. at 393 (quoting Metro. Life Ins. Co. v. Taylor,

481 U.S. 58, 64 (1987)). Federal question jurisdiction is

supported only when a claim falls within the preemptive

scope of federal law. See Balcorta, 208 F.3d at 1106.

Therefore, courts ask the same question in deciding whether

a claim is completely preempted (and thus supports federal

question jurisdiction) and in deciding whether a state-law

claim is preempted by § 301—whether the state-law claim

depends “on rights created by collective-bargaining

agreements.” Caterpillar Inc., 482 U.S. at 394. Thus, the

majority’s attempts to distinguish Davila and Burnside, Maj.

66 ALASKA AIRLINES V. SCHURKE

Op. at 22 n.15, 36 n.28, because they considered the

preemptive force of federal statutes in a jurisdictional context,

is wholly without support. See, e.g., id. at 394–95 (applying

the test for § 301 preemption to a complete preemption

question).

These basic principles of preemption require federal

courts to determine when congressional intent supersedes

state requirements. Regardless whether Congress intended to

supersede state law regulating behavior (typical conflict

preemption) or to supersede state law creating causes of

action (typical forum preemption), it is necessary to evaluate

the state law in order to determine if it conflicts with the

federal law. The majority errs in its apparent belief that

reading state statutes to resolve the forum preemption

question is equivalent to reading state statutes to decide the

merits of a dispute. Maj. Op. 21–22. Courts are perfectly

capable of, and indeed are required to evaluate a state-law

cause of action to determine whether it creates a minor

dispute without evaluating and deciding the dispute itself.

Reading state law is a part of that analysis. See supra Section

II.A.

Second, in the absence of any Ninth Circuit precedent, the

majority points to out-of-circuit cases to support its argument

that forum preemption precludes consideration of state law,

but they lend no support. Rather, the cases cited by the

majority merely articulate the scope of RLA preemption. See

Davies v. Am. Airlines, Inc., 971 F.2d 463, 465 n.1 (10th Cir.

1992) (holding that “the RLA vests exclusive and mandatory

jurisdiction over certain claims in an arbitral forum,” and

noting that RLA preemption is different than “the doctrine of

field preemption,” which addresses whether Congress has

“precluded states from regulating a particular area of

ALASKA AIRLINES V. SCHURKE 67

conduct”); see also Sullivan v. Am. Airlines, Inc., 424 F.3d

267, 273–74 (2d Cir. 2005) (holding that “state-law claims

that are disguised minor disputes” are “preempted by the

RLA,” but that the RLA does not support federal question

jurisdiction); Ry. Labor Execs. Ass’n v. Pittsburgh & Lake

Erie R. Co., 858 F.2d 936, 942–43 (3d Cir. 1988) (holding

that the RLA does not support federal question jurisdiction);

Miller v. Norfolk & W. Ry. Co., 834 F.2d 556, 560–61 (6th

Cir. 1987) (distinguishing between complete preemption and

“choice of forum” preemption). However, neither the Tenth

Circuit in Davies nor any other circuit has held, or even

hinted, that a proper construction of state law is irrelevant to

RLA or § 301 preemption.

Finally, the majority analogizes to the prudential doctrine

of primary jurisdiction and to the contract principles used to

determine when issues have been submitted to an arbitrator.

Maj. Op. at 21–23. These analogies fail. Primary jurisdiction

is “a prudential doctrine under which courts may, under

appropriate circumstances, determine that the initial

decisionmaking responsibility should be performed by the

relevant agency rather than the courts.” Syntek

Semiconductor Co. v. Microchip Tech. Inc., 307 F.3d 775,

780 (9th Cir. 2002). Cases applying primary jurisdiction

doctrine do not grapple with the question whether a proper

construction of state law is necessary for preemption

purposes. The majority also analogizes to arbitrability

disputes under the Federal Arbitration Act. See Maj. Op. at

21 (citing First Options of Chi., Inc. v. Kaplan, 514 U.S. 938,

943 (1995)). First Options uses contract principles to

determine whether the parties agreed to submit the issue of

arbitrability to the arbitrator. 514 U.S. at 943. It does not

provide any support to the majority’s claim that a federal

court cannot consider the state cause of action to determine

68 ALASKA AIRLINES V. SCHURKE

whether it constitutes a minor dispute.21 Even if the

majority’s analogies were apt, neither doctrine establishes

that a court is precluded from construing the state law here.

C

The Supreme Court and Ninth Circuit precedent described

above also dispose of the majority’s argument that construing

WFCA to analyze preemption is the same as reaching the

merits of Masserant’s WFCA claim. It is evident that the

merits of a dispute pose analytically distinct questions from

the question of who has the power to decide a particular legal

question. Cf. First Options, 514 U.S. at 942. As

demonstrated in Rawson and Burnside, analyzing the state

law at issue is the only way to decide whether a state cause of

action brings a claim that is “independent of any right

established by contract, or, instead, whether evaluation of the

. . . claim is inextricably intertwined with consideration of the

terms of the labor contract.” Lueck, 471 U.S. at 213. It is our

task to determine what entity has the power to decide the

21

To the extent that analogies to primary jurisdiction and arbitration

are relevant, these cases illustrate that courts should err on the side of

holding that state law claims are preempted. When protecting the primary

jurisdiction of the NLRB for example, the Supreme Court preempts any

claim that is even “arguably” within the NLRB’s jurisdiction. See

Garmon, 359 U.S. at 245. And the Supreme Court has long recognized

that the FAA preempts state rules that frustrate the “liberal federal policy

favoring arbitration.” See AT&T Mobility LLC v. Concepcion, 563 U.S.

333, 346, 352 (2011) (quoting Moses H. Cone Mem’l Hosp. v. Mercury

Constr. Corp., 460 U.S. 1, 24 (1983)).

ALASKA AIRLINES V. SCHURKE 69

merits of Masserant’s dispute. Maj. Op. at 17; Lueck,

471 U.S. at 214.22

In sum, Supreme Court and our precedent dictate that we

must understand the nature, or “legal character” of a state-law

cause of action before we can address the question whether

the cause of action has been displaced by the preemptive

force of the RLA. It is the majority that stands alone in

suggesting that the proper construction of state law is

irrelevant to whether a cause of action, brought under that

state law, is preempted by the RLA. Therefore, the

majority’s crucial presumption—that because of the RLA’s

unique forum preemption, courts may not consider state law

when deciding whether the RLA preempts a state cause of

action—is entirely meritless.

IV

The majority’s erroneous approach allows Masserant to

sidestep the RLA’s mandatory arbitral mechanism, and thus

22

Construing the scope of state law to determine the legal character

of Masserant’s claim is not a “peek” at the merits of her dispute. Cf. Am.

W. Airlines, Inc. v. Nat’l Mediation Bd., 119 F.3d 772, 775–76 (9th Cir.

1997) (holding that because judicial review of the decisions of the

National Mediation Board is limited to circumstances when the Board

“committed a constitutional violation or egregious violation of the RLA,”

a court may “‘peek’ at the merits” to determine if such an error has

occurred). A determination that Masserant’s claim requires an

interpretation of the CBA does not require any inquiry into the merits of

her claim—that she is entitled to reschedule vacation time. Masserant’s

ultimate ability to reschedule her vacation time remains unresolved.

70 ALASKA AIRLINES V. SCHURKE

is contrary to Supreme Court precedent and common sense.23

See Hawaiian Airlines, 512 U.S. at 252–53.

The majority claims that because a court cannot look at

state law, it is limited to considering whether the claim, as

pleaded, constitutes a minor dispute. Maj. Op. at 29.

Therefore, the majority argues, we must take at face value

Masserant’s claims that WFCA gives employees the right to

reschedule vacation time regardless of any provision to the

contrary in the CBA. Maj. Op. at 29–30; see also Maj. Op.

at 24 (“Our only job is to decide whether, as pleaded, the

claim ‘in this case is “independent” of the [CBA] in the sense

of “independent” that matters for . . . pre-emption purposes:

resolution of the state-law claim does not require construing

the collective-bargaining agreement.’” (alteration in original)

(quoting Lingle, 486 U.S. at 407)).

As shown above, the premises underlying this approach

are meritless. To the contrary, the Supreme Court has made

23

The majority claims that preemption here would permit federal

courts “to police the development of substantive state law,” by “inhibiting

the state from creating precedent on the meaning of its own statutes

through the ordinary process of state court appeals.” Maj. Op. at 34. This

is incorrect. For instance, if a state court merely needed to “look to” the

undisputed terms of the collective bargaining agreement to ascertain that

the employee was entitled to sick leave or other paid time off, the RLA

would not defeat the employee’s state-law claim, and a state court could

enforce the employee’s right to choose to use that time to care for a

qualifying relative. See Livadas, 512 U.S. at 125; Lingle, 486 U.S. at 407

n.7. Similarly, a state court would be free to construe WFCA in a

preemption analysis when the plaintiff is entitled to sick leave or other

paid time off under an employer policy. L&I and Washington courts are

merely precluded from deciding whether Masserant is “entitled to”

vacation time under the terms of the CBA, and whether she otherwise

complied with the terms of the CBA.

ALASKA AIRLINES V. SCHURKE 71

clear that a plaintiff cannot avoid the RLA’s preemptive

effect based on artful pleading. Just as Rawson declined to

allow plaintiffs to avoid preemption by offering a colorable

interpretation of state law through artful pleading, 495 U.S.

at 371–72, the Court has generally refused to adopt a rule that

“permit[s] an individual to sidestep available grievance

procedures” through clever pleading, Lueck, 471 U.S. at 220;

see also Lingle, 486 U.S. at 411. As the Court noted in

Lueck, a gifted lawyer can readily reformulate a minor

dispute as a state cause of action, and “[c]laims involving

vacation or overtime pay, work assignment, unfair

discharge—in short, the whole range of disputes traditionally

resolved through arbitration—could be brought in the first

instance in state court,” as a state tort claim for instance.

471 U.S. at 219–20. The insistence that a court must take a

plaintiff’s pleadings at face value “would cause arbitration to

lose most of its effectiveness, as well as eviscerate a central

tenet of federal labor-contract law under § 301 that it is the

arbitrator, not the court, who has the responsibility to

interpret the labor contract in the first instance.” Id. at 220

(citation omitted).24

24

No case cited by the majority, Maj. Op. at 23, supports the

proposition that a court must take a plaintiff’s pleadings at face value.

See, e.g., Espinal v. Nw. Airlines, 90 F.3d 1452, 1457 (9th Cir. 1996)

(holding that plaintiff’s state-law claims were not preempted by the RLA

after conducting a three-part analysis into the legal character of the claims,

namely: “(1) Does the CBA contain provisions that govern the actions

giving rise to the state claim? (2) Is the state statute ‘sufficiently clear’ so

that the claim can be evaluated without consideration of overlapping

provisions in the CBA? (3) Has the state shown an intent not to allow the

statute to be altered or removed by private contract?” (quoting Jimeno v.

Mobil Oil Corp., 66 F.3d 1514, 1523 (9th Cir. 1995))).

72 ALASKA AIRLINES V. SCHURKE

In short, neither the Supreme Court nor we have been

hesitant to construe state law in order to determine the legal

character of a state-law cause of action, and have certainly

not taken the plaintiff’s formulation of a state-law complaint

at face value. The majority makes a crucial error in reasoning

that something about the nature of RLA preemption precludes

construing WFCA in order to determine whether a state-law

cause of action is actually a minor dispute.

V

The Supreme Court has a well-developed body of case

law directing lower courts on how to conduct a preemption

analysis, both inside and outside the labor-law context. The

majority departs from this precedent on the grounds that

courts are precluded from considering state law in deciding

whether the state cause of action is actually a minor dispute

that requires resolution by the RLA’s arbitral mechanism. In

doing so, the majority allows plaintiffs to sidestep available,

federally-required grievance procedures. This approach is

contrary to Supreme Court guidance and Congress’s intent.

Because all minor disputes must be resolved through the

RLA’s mandatory arbitral mechanism, the key mechanism for

“minimizing interruptions in the Nation’s transportation

services,” Int’l Ass’n of Machinists, 372 U.S. at 687, I dissent.