Petition for Writ of Certiorari — Alaska Airlines, Inc., Petitioner v. Judy Schurke, et al.
Supreme Court briefOct 30, 2018
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No. _______
In the
Supreme Court of the United States
ALASKA AIRLINES, INC.,
Petitioner,
v.
JUDY SCHURKE, in her official capacity as
Director of the State of 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,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
MARK A. HUTCHESON
REBECCA G. FRANCIS
DAVIS WRIGHT
TREMAINE LLP
1201 Third Avenue
Suite 2200
Seattle, WA 98101
(206) 622-3150
GREGORY G. GARRE
Counsel of Record
SAMIR DEGER-SEN
JIN H. LEE
LATHAM & WATKINS LLP
555 Eleventh Street, NW
Suite 1000
Washington, DC 20004
(202) 637-2207
gregory.garre@lw.com
Counsel for Petitioner
QUESTION PRESENTED
In order to promote stability in labor-management
relations and minimize disruptions in vital
transportation services, the Railway Labor Act (RLA)
requires mandatory arbitration for all disputes in the
railroad and airline industries that require the
“interpretation or application” of a collective
bargaining agreement (CBA). 45 U.S.C. §§ 153(i),
184. State law claims that involve the interpretation
or application of a CBA are therefore preempted. This
Court applies the same preemption analysis under
the RLA as it does under Section 301 of the Labor
Management Relations Act (LMRA), which governs
all “[s]uits for violation of contracts between an
employer and a labor organization representing
employees.”
29 U.S.C. § 185(a); see Hawaiian
Airlines, Inc. v. Norris, 512 U.S. 246, 260 (1994)
(observing that the RLA and LMRA preemption
standards are “virtually identical”).
This case arises from a dispute between an airline
and a flight attendant over the latter’s claim that she
was entitled to reschedule claimed vacation time to
cover for an upcoming flight. Although the applicable
CBA governs the taking and rescheduling of such
vacation, the plaintiff sought to avoid arbitration by
pleading her claim solely in terms of the violation of
state law. Splitting 6-5, an en banc panel of the Ninth
Circuit held—in direct conflict with the decisions of
other courts of appeals—that federal courts cannot
inquire into the nature and scope of the state law
claim in conducting this preemption inquiry. App.
38a-39a. According to the majority, a plaintiff’s mere
allegation that her claim turns on state law, not a
CBA, is thus alone sufficient to avoid the RLA’s
ii
arbitration mechanism. Id. at 32a-33a. As the
majority acknowledged, this holding applies equally
to Section 301 of LMRA. Id. at 3a, 8a, 16a.
In dissent, Judge Ikuta concluded that the
majority’s limited view of the RLA and Section 301’s
preemptive scope not only was “unprecedented,” but
also “directly contrary to decades of the Supreme
Court’s preemption decisions.” Id. at 39a (Ikuta, J.,
joined by Tallman, Callahan, Bea, and M. Smith, JJ.).
If the decision were allowed to stand, she explained,
it would “impair[] or extinguish[] preemption” and
allow plaintiffs to sidestep arbitration simply through
the exercise of “clever pleading.” Id. at 39a, 72a.
The question presented is whether federal courts
lack authority to inquire into the nature and scope of
an alleged state law claim in determining whether
resolution of that claim would involve interpretation
or application of a CBA and thus trigger preemption.
iii
PARTIES TO THE PROCEEDINGS
AND RULE 29.6 STATEMENT
Petitioner is Alaska Airlines Inc., an Alaska
Corporation, which is wholly owned by Alaska Air
Group, Inc. No public company owns more than 10%
of the stock of Alaska Airlines, Inc.
Respondents are Judy Schurke, in her official
capacity as Director of the State of 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, and
the Association of Flight Attendants–Communication
Workers of America, AFL-CIO, who participated as
Intervenor-Defendant-Appellee in the Ninth Circuit.
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED ......................................... i
PARTIES TO THE PROCEEDINGS AND RULE
29.6 STATEMENT.............................................. iii
TABLE OF AUTHORITIES ..................................... vi
OPINIONS AND ORDERS BELOW ......................... 1
JURISDICTION ......................................................... 1
STATUTORY PROVISIONS INVOLVED ................ 1
STATEMENT OF THE CASE ................................... 1
A. Statutory Background ................................... 3
B. Factual Background ...................................... 6
C. Procedural History ........................................ 9
D. En Banc Decision Below ............................. 10
1. Majority Opinion ................................... 11
2. Dissenting Opinion ............................... 12
REASONS FOR GRANTING THE WRIT............... 14
A. The Decision Below Conflicts With The
Decisions Of Other Courts Of Appeals ....... 15
B. The Decision Below Conflicts With The
Decisions Of This Court .............................. 21
C. The Question Presented Is Exceptionally
Important And Warrants Review Here ...... 26
CONCLUSION ......................................................... 32
v
TABLE OF CONTENTS—Continued
Page
APPENDIX TABLE OF CONTENTS
Opinion of the United States Court of Appeals
for the Ninth Circuit, Alaska Airlines Inc.
v. Schurke, 898 F.3d 904 (9th Cir. 2018) (en
banc) ....................................................................1a
Opinion of the United States Court of Appeals
for the Ninth Circuit, Alaska Airlines Inc.
v. Schurke, 846 F.3d 1081 (9th Cir. 2017)
(initial panel) ....................................................75a
Order of the United States District Court for
the Western District of Washington
Granting Defendants’ and Intervenors’
Motions for Summary Judgment and
Denying Plaintiff’s Motion for Summary
Judgment, Alaska Airlines Inc. v. Schurke,
No. C11–0616JLR, 2013 WL 2402944 (D.
Wash. May 31, 2013) ......................................112a
29 U.S.C. § 185 ......................................................135a
45 U.S.C. § 151a ....................................................137a
45 U.S.C. § 184 ......................................................138a
Washington Revised Code § 49.12.270 .................140a
Excerpts from Exhibit B to Complaint for
Injunctive
and
Declaratory
Relief:
Collective
Bargaining
Agreement
(ER1109-1106, ER1129) .................................141a
vi
TABLE OF AUTHORITIES
Page(s)
CASES
Air Line Pilots Association,
International v. US Airways Group,
Inc.,
609 F.3d 338 (4th Cir. 2010)..................................3
Allis-Chalmers v. Lueck,
471 U.S. 202 (1985) ........................ 4, 14, 22, 25, 27
Andrews v. Louisville & Nashville
Railroad Co.,
406 U.S. 320 (1972) ................................................4
Barton v. House of Raeford Farms, Inc.,
745 F.3d 95 (4th Cir.), cert. denied,
135 S. Ct. 160 (2014)......................................17, 18
Brotherhood of Railroad Trainmen v.
Jacksonville Terminal Co.,
394 U.S. 369 (1968) ................................................3
Consolidated Rail Corp. v. Railway
Labor Executives’ Association,
491 U.S. 299 (1989) ................................................4
DeCoe v. General Motors Corp.,
32 F.3d 212 (6th Cir. 1994)..................................20
Detroit & Toledo Shore Line Railroad
Co. v. United Transportation Union,
396 U.S. 142 (1969) ................................................3
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Ertle v. Continental Airlines, Inc.,
136 F.3d 690 (10th Cir. 1998)..............................21
Gore v. Trans World Airlines,
210 F.3d 944 (8th Cir. 2000), cert.
denied, 532 U.S. 921 (2001) ...........................19, 20
Hawaiian Airlines, Inc. v. Norris,
512 U.S. 246 (1994) .................................. 2, 4, 5, 22
Hilker v. Western Automobile Insurance
Co.,
235 N.W. 413 (Wis. 1931) ....................................25
International Association of Machinists,
AFL-CIO v. Central Airlines, Inc.,
372 U.S. 682 (1963) ............................................3, 4
Kollar v. United Transporation Union,
83 F.3d 124 (5th Cir. 1996)..................................21
Lingle v. Norge Division of Magic Chef,
Inc.,
486 U.S. 399 (1988) .................................... 5, 23, 27
Livadas v. Bradshaw,
512 U.S. 107 (1994) ..............................................13
Local 174, Teamsters, Chauffeurs,
Warehousemen & Helpers of America
v. Lucas Flour Co.,
369 U.S. 95 (1962) ........................................2, 4, 28
viii
TABLE OF AUTHORITIES—Continued
Page(s)
McCray v. Marriott Hotel Services, Inc.,
902 F.3d 1005 (9th Cir. 2018).................. 29, 30, 31
O’Brien v. Consolidated Rail Corp.,
972 F.2d 1 (1st Cir. 1992) ....................................19
Pennsylvania Federation of the
Brotherhood of Maintenance of Way
Employees v. National Railroad
Passenger Corp.,
989 F.2d 112 (3d Cir. 1993) .................................20
Rueli v. Baystate Health, Inc.,
835 F.3d 53 (1st Cir. 2016) ............................19, 22
Tifft v. Commonwealth Edison Co.,
366 F.3d 513 (7th Cir. 2004)..........................15, 16
Union Pacific Railroad Co. v. Sheehan,
439 U.S. 89 (1978) ........................................3, 4, 27
United Steelworkers of America, AFLCIO-CLC v. Rawson,
495 U.S. 362 (1990) ........................................14, 25
Vera v. Saks & Co.,
335 F.3d 109 (2d Cir. 2003) .................................20
FEDERAL STATUTES
28 U.S.C. § 1254(1)......................................................1
29 U.S.C. § 185(a)........................................................5
ix
TABLE OF AUTHORITIES—Continued
Page(s)
45 U.S.C. § 151a ........................................................21
45 U.S.C. § 151a(1)......................................................3
45 U.S.C. § 151a(5)......................................................4
45 U.S.C. § 181 ............................................................3
STATE STATUTES
Wash. Rev. Code § 49.12.270(1)..............................8, 9
Petitioner Alaska Airlines, Inc. respectfully
petitions this Court for a writ of certiorari to review
the judgment of the United States Court of Appeals
for the Ninth Circuit in this case.
OPINIONS AND ORDERS BELOW
The en banc opinion of the court of appeals (App.
1a-74a) is reported at 898 F.3d 904. The initial panel
opinion of court of appeals (App. 75a-111a) is reported
at 846 F.3d 1081. The district court’s order entering
summary judgment for respondents (App. 112a-34a)
is available at 2013 WL 2402944.
JURISDICTION
The court of appeals entered its opinion and order
of judgment on August 1, 2018. App. 1a. This Court
has jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
Pertinent statutory provisions are reprinted at
App. 135a-40a.
STATEMENT OF THE CASE
This case involves a circuit conflict on a recurring
question of national importance. Federal labor law
has long required that disputes in the airline or
railroad industries involving the interpretation or
application of a collective bargaining agreement
(CBA) be addressed through arbitration. When a
plaintiff raises state law claims that implicate a CBA,
the Railway Labor Act (RLA or the Act) requires a
court to assess the legal character of those claims to
determine whether their resolution will require
interpretation or application of the CBA. If they do,
those claims are preempted. The preemption analysis
under the RLA “is virtually identical” to that “in cases
2
involving § 301 of [the Labor Management Relations
Act (LMRA)],” and this Court has interpreted the two
provisions coextensively. Hawaiian Airlines, Inc. v.
Norris, 512 U.S. 246, 260 (1994). Countless employee
grievances each year are subject to arbitration as a
result of this longstanding preemption analysis.
In the decision below, a 6-5 majority of the Ninth
Circuit sitting en banc fashioned a sweeping new rule
governing RLA preemption—one that provides a
roadmap for plaintiffs seeking to bypass the RLA’s
mandatory arbitration mechanism.
The Ninth
Circuit held that federal courts lack the authority to
consider the nature and scope of a claim pleaded
under state law. Instead, a court is limited to
considering the claim as pleaded, even if a simple
legal analysis of the claim would reveal that it
requires interpretation or application of a CBA. App.
24a. As Judge Ikuta explained, that approach drives
a stake through federal labor policy in this context by
allowing plaintiffs to sidestep arbitration simply
through “clever pleading.” Id. at 72a (dissent).
The Ninth Circuit’s decision directly conflicts with
the decisions of other courts of appeals. Furthermore,
because preemption under the RLA is “virtually
identical” to preemption under Section 301 of the
LMRA, Norris, 512 U.S. at 260, the Ninth Circuit’s
holding will affect every industry governed by a CBA.
The Ninth Circuit’s rule—covering approximately a
third of the country—will affect thousands of
employment-related disputes each year. And it will
subject CBAs to divergent interpretations depending
on the particular State in which the claim is
brought—a result that “strikes at the very core of
federal labor policy.”
Local 174, Teamsters,
3
Chauffeurs, Warehousemen & Helpers of Am. v. Lucas
Flour Co., 369 U.S. 95, 104 (1962).
This Court’s intervention is needed.
A. Statutory Background
Congress enacted the RLA in 1926 to “encourage
collective bargaining by railroads and their
employees” and prevent “wasteful strikes and
interruptions of interstate commerce.” Detroit &
Toledo Shore Line R.R. Co. v. United Transp. Union,
396 U.S. 142, 148 (1969). The provisions of the Act
were extended to the airline industry in 1936. See 45
U.S.C. § 181.
As Congress recognized, stable
employment arrangements have “special importance
in the rail and air industries, where failure to resolve
labor disputes . . . may ‘interrupt[] . . . commerce’ and
thus adversely affect the public interest in traveling
and shipping.” Air Line Pilots Ass’n, Int’l v. US
Airways Grp., Inc., 609 F.3d 338, 341 (4th Cir. 2010)
(Wilkinson, J.) (alterations in original) (quoting 45
U.S.C. § 151a(1) and citing Union Pac. R.R. Co. v.
Sheehan, 439 U.S. 89, 94 (1978) (per curiam)).
Accordingly, the RLA sets forth a detailed
statutory “machinery to resolve disputes . . . as to
wages, hours, and working conditions” between
airlines and their employees. International Ass’n of
Machinists, AFL-CIO v. Central Airlines, Inc., 372
U.S. 682, 687 (1963). The core aspect of this
machinery is arbitration, which is conducted by
panels known as adjustment boards. Brotherhood of
R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S.
369, 377-78 (1968). Congress viewed such arbitration
as essential to ensuring “the prompt and orderly
settlement” of labor disputes and key to “minimizing
4
interruptions in the Nation’s transportation services.”
Cent. Airlines, Inc., 372 U.S. at 687, 689.
The RLA’s arbitration mechanism applies to two
classes of disputes. The first class, referred to as
“major” disputes, relates to “the formation of
collective [bargaining] agreements or efforts to secure
them.” Consolidated Rail Corp. v. Railway Labor
Executives’ Ass’n, 491 U.S. 299, 302 (1989) (citation
omitted).
The second class, known as “minor”
disputes, “grow[s] out of grievances or out of the
interpretation or application of agreements covering
rates of pay, rules, or working conditions.” 45 U.S.C.
§ 151a(5). Put another way, “major disputes seek to
create contractual rights, minor disputes to enforce
them.” Hawaiian Airlines, Inc. v. Norris, 512 U.S.
246, 253 (1994) (citation omitted).
Arbitration is critical to resolving disputes
involving CBA-governed employees—especially in the
context of multistate CBAs—where “Congress
intended doctrines of federal labor law uniformly to
prevail over inconsistent local rules.” Lucas Flour
Co., 369 U.S. at 104. “The interests in interpretive
uniformity and predictability that require that laborcontract disputes be resolved by reference to federal
law also require that the meaning given a contract
phrase or term be subject to uniform federal
interpretation.” Allis-Chalmers v. Lueck, 471 U.S.
202, 211 (1985). “Congress considered it essential to
keep . . . so-called ‘minor’ disputes within [the RLA’s
mandatory arbitration mechanism] and out of the
courts.” Sheehan, 439 U.S. at 94.
To prevent employees from bringing employmentrelated grievances under the guise of state law claims,
this Court has long held that the RLA has preemptive
force. See Andrews v. Louisville & Nashville R.R. Co.,
5
406 U.S. 320, 321-22 (1972). When a state law cause
of action is either founded on a right created by a CBA
or involves “interpretation or application” of the CBA,
then the claim is preempted, and the employee must
instead pursue relief through the RLA’s mandatory
arbitral mechanism. Norris, 512 U.S. at 252-53.
This preemption is important to ensuring that the
interpretation of CBAs—especially multistate
CBAs—remains uniform and consistent. Accordingly,
when “resolution of a state-law claim depends upon
the meaning of a collective-bargaining agreement, the
application of state law (which might lead to
inconsistent results since there could be as many
state-law principles as there are States) is pre-empted
and federal labor law principles—which are
necessarily uniform throughout the Nation—must be
employed to resolve the dispute.” Lingle v. Norge Div.
of Magic Chef, Inc., 486 U.S. 399, 405-06 (1988).
The legal standards governing preemption under
the RLA are particularly important because they
apply not only to the RLA itself but also to Section 301
of the LMRA, which establishes federal subject
matter jurisdiction over all “[s]uits for violation of
contracts between an employer and a labor
organization representing employees.” 29 U.S.C.
§ 185(a). The preemption analysis under the RLA “is
virtually identical” to that “in cases involving § 301 of
the LMRA,” Norris, 512 U.S. at 260, and this Court
has interpreted the two provisions coextensively.
The primary difference between Section 301 and
the RLA is that the “source of the obligation to
arbitrate differs between the” two provisions. App.
11a n.7. While the RLA involves a statutorily created
arbitral
mechanism,
Section
301
“protects
contractually created obligations [and thus] provides,
6
as a matter of federal common law, for the specific
performance of CBA terms requiring the . . .
arbitration of disputes.” Id. Although arbitration is
“not mandated by statute, . . . in practice ‘[a]rbitrators
are delegated by nearly all [CBAs] as the adjudicators
of contract disputes.’” Id. (alterations in original)
(citation omitted). Thus, “the end purposes of LMRA
§ 301 preemption and RLA preemption are the
same—to enforce ‘a central tenet of federal laborcontract law . . . that it is the arbitrator, not the court,
who has the responsibility to interpret the labor
contract in the first instance.’” Id. (alteration in
original) (citation omitted).
B. Factual Background
Alaska Airlines is a federally regulated common
carrier by air subject to the RLA. It conducts
hundreds of flights each day from cities all over the
country (and in other countries).
It has
approximately 17,500 employees, including roughly
5,800 flight attendants. Like other major airlines, it
operates in accordance with system-wide, and
therefore nationwide, CBAs that it negotiates with
unions of employees, organized by craft or class. As
relevant here, Alaska Airlines operates its inflight
operations, for which its flight attendants work, in
accordance with a system-wide CBA negotiated with
the Association of Flight Attendants, Communication
Workers of America—AFL-CIO (AFA).
Because reliable attendance is critical to both
running an airline and meeting federal safety
standards, Alaska Airlines, like all major airlines, has
strict rules about the scheduling, and rescheduling, of
vacation. Flight attendant absences pose unique
concerns in the airline industry because under FAA
7
regulations, a plane cannot take off without the
requisite number of flight attendants on board.
Accordingly, under Alaska Airlines’s long-standing
workplace practice, flight attendants must “pre-bid”
their vacation each year. App. 3a. And to ensure
sufficient staffing on each aircraft, once an
attendant’s vacation is scheduled, flight attendants
are highly circumscribed in the ways in which they
are permitted to move that scheduled vacation. Id.
Under the applicable CBA and Alaska Airlines’s
policies and past practices, flight attendants accrue
sick leave based on the amount of time they work,
including the number of flights staffed. Id. at 117a18a. The CBA identifies situations in which flight
attendants may use sick leave, including when
necessary to care for certain family members. The
CBA also sets forth detailed rules for earning paid
vacation and the circumstances in which such leave
may be used outside of a scheduled period. Id. If a
flight attendant takes an absence that is not allowed
under the CBA, the employee may incur attendance
points, which may then become the basis for
disciplinary action. Id. at 3a-4a.
This case arises from a dispute between Alaska
Airlines and a flight attendant, Laura Masserant,
over the use of scheduled vacation to care for a sick
family member. In October 2010, Masserant bid for
her preferred vacation schedule in 2011. Id. at 76a.
She was awarded the vacation in accordance with her
seniority. Masserant scheduled four paid vacation
days in January and seven in each of four other
months, including December. Id. at 120a-21a & n.4.
In May, 2011, Masserant informed Alaska Airlines
that she needed to be absent from upcoming flights
over a two-day period to care for her son, who had
8
bronchitis. Id. at 3a. Alaska Airlines informed her
that she did not have sick leave to cover this two-day
period, and that, under the CBA, she was not allowed
to reschedule her December vacation to cover the
absence. Id. at 121a. Masserant was allowed to take
an emergency absence, but, in accordance with the
CBA, she was assessed attendance points for doing so.
App. 4a.
Masserant disputed Alaska Airlines’s
refusal to allow her to reschedule her December
vacation.
But instead of invoking the CBA’s
grievance procedure, Masserant, supported by her
union, filed a complaint with the Washington
Department of Labor and Industries (WA L&I). Id.
Masserant’s complaint alleged that she was
denied “protected leave” under the Washington
Family Care Act (WFCA). That Act provides, in
pertinent part, that “[i]f, under the terms of a
collective bargaining agreement” or other employer
policy, an “employee is entitled to sick leave or other
paid time off, then the 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 sick
family member].” Wash. Rev. Code § 49.12.270(1)
(emphasis added). The WFCA explicitly makes the
statutory right it creates contingent on an employee
being “entitled” to paid time off “under the terms of”
the governing CBA. Id. The WFCA further specifies
that an “employee taking leave . . . 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.
Although the parties disputed whether the “terms
of” the CBA in fact “entitled” Masserant to reschedule
her December vacation to cover her absence in May,
the WA L&I found that Alaska Airlines had violated
9
the WFCA by assessing Masserant attendance points
for taking an emergency absence. App. 5a.
C. Procedural History
In March 2012, Alaska Airlines filed this action in
federal court against the director of the WA L&I and
another official. Id. at 120a. It sought a declaration
that L&I’s enforcement action against the airline was
preempted by the RLA’s mandatory arbitration
provision because Masserant’s state law right
depended upon—and thus required interpretation or
application of—a CBA. As Alaska Airlines explained,
the WFCA expressly made Masserant’s state law
right to use her vacation for family medical purposes
contingent on her being “entitled” to that time off in
the first place “under the terms of [her] collective
bargaining agreement.”
Wash. Rev. Code
§ 49.12.270(1). As a result, the case would necessarily
involve interpretation or application of the CBA to
determine that initial “entitlement.” App. 18a-19a.
While the parties agreed that Masserant had
accrued vacation time, they disputed whether she was
“entitled” under the CBA to use it in May when she
had already been awarded that time off for December.
As Alaska Airlines further explained, the WFCA
provides that an employee “must comply with” all
other “terms of the collective bargaining agreement”
(including for advance scheduling), and those terms
dictated that Masserant was not permitted to
reschedule her December vacation for family care
purposes in May. Wash. Rev. Code § 49.12.270(1).
WA L&I, in turn, argued that the WFCA provided
Masserant with an “independent state law right” to
reschedule her vacation days—notwithstanding the
terms of her CBA. App. 29a. In L&I’s view, the
10
statute dictates that once an employee has accrued
time off they must be permitted to use that time off
for family medical leave purposes, even if doing so
violates a CBA policy governing advanced scheduling.
Id. Accordingly, L&I argued that Masserant’s claim
would not require any interpretation of the CBA,
because her theory of state law—which the Airline
disputed—entitled her to relief notwithstanding the
CBA’s terms. The district court sided with L&I,
reasoning that Masserant’s complaint, on its face, was
based on a violation of state law, and thus would not
require interpretation of the CBA. Id. at 115a.
A divided panel of the Ninth Circuit reversed.
Writing for the majority, Judge Kleinfeld observed
that the “fundamental question” under existing
precedent is “whether the state right is sufficiently
independent of the collecting bargaining agreement to
avoid the broad preemption of the . . . . [RLA].” Id. at
91a. And, in this case, he explained, “the state law
right and the collective bargaining agreement are
indeed
inextricably
intertwined”—the
WFCA
“expressly limits the right it establishes to employees
‘entitled’ to leave ‘under the terms of a collective
bargaining agreement or employer policy.’” Id. at
95a-96a. Judge Christen dissented. Id. at 100a-11a.
D. En Banc Decision Below
The Ninth Circuit subsequently granted rehearing
en banc and, by a 6-5 vote, affirmed the district court’s
decision in an opinion written by Judge Berzon and
joined by Chief Judge Thomas and Judges McKeown,
Paez, Nguyen, and Hurwitz. App. 1a-38a. Judge
Ikuta, joined by Judges Tallman, Callahan, Bea, and
Milan Smith, dissented. Id. at 39a-74a.
11
1. Majority Opinion
According to the majority, the “preemption
inquiry” under the RLA, like the “virtually identical”
standard under Section 301 of LMRA, looks to “the
claim’s ‘legal character’—whatever its merits—so as
to ensure it is decided in the proper forum.” App. 23a.
“In conducting the preemption analysis,” the majority
held, “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.” Id. Thus,
in the majority’s view, “[t]he primary point of
reference in the preemption analysis is . . . not state
law,” but instead “the plaintiff’s pleading.” Id. at 22a.
As long as “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.” Id. at 23a (citation omitted).
Applying this understanding, the majority found it
“straightforward” that Masserant’s claim was not
preempted. Id. at 29a. As the majority explained,
“Masserant has alleged a violation of the WFCA’s
independent state law right to use banked vacation
days.” Id. The majority acknowledged that “the
Airline disagrees with [Masserant’s] interpretation of
the WFCA” and that “a dispute exists over whether
Masserant . . . was ‘entitled’ to take [the requested
leave] within the meaning of the WFCA”—an
entitlement which, under the express terms of the
WFCA, depends on the CBA itself. Id. at 29a, 30a31a. Nevertheless, the majority concluded that
“[w]hat matters for present purposes . . . is that
Masserant can prevail if state law means what [she
says] it means, whether or not the Airline’s CBA
12
interpretation is correct.” Id. at 32a (emphasis
added). Indeed, in the majority’s view, the court
lacked “jurisdiction” to “construe state law and
resolve [the dispute] between the parties as to its
meaning” as part of its RLA preemption analysis;
instead, the court was limited to only the face of
“plaintiff’s pleading.” Id. at 22a, 32a-33a.
The majority thus concluded that Masserant’s
claim was “not preempted under the RLA” and,
therefore, not subject to arbitration. Id. at 38a.
2. Dissenting Opinion
Judge Ikuta, joined by four other judges,
dissented. Judge Ikuta began by noting that when “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.”
Id. at 39a (dissent). “Instead of applying this rule,”
Judge Ikuta explained, “the majority impose[d] an
unprecedented constraint that effectively eviscerates
federal court review.” Id. It held “that in conducting
an RLA preemption analysis, a federal court may not
consider the nature and scope of the state cause of
action . . . but must limit itself to determining
whether the plaintiff has pleaded a claim that
constitutes a minor dispute.” Id.
As Judge Ikuta explained, under the terms of the
WFCA, “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,’ including any requirements
applicable to rescheduling vacation time.” Id. at 55a
(alterations
in
original)
(citation
omitted).
13
“Masserant’s WFCA claim,” Judge Ikuta reasoned,
“therefore turns on whether she was entitled to
reschedule her December vacation time under the
terms of the CBA.” Id. Since this question clearly
“requires interpretation and application of the CBA,”
Judge Ikuta concluded that “it is a quintessential
minor dispute that must be channeled through the
RLA’s mandatory arbitral mechanism.” Id. at 57a.1
The majority reached its contrary holding, Judge
Ikuta explained, not because it interpreted the WFCA
differently, but because it declined to interpret the
WFCA at all. Instead, the majority concluded that
“RLA preemption precludes any consideration of the
state law governing a cause of action.” Id. at 58a-59a
(emphasis added). Thus, the majority establishes a
rule under which “a federal court’s ‘only job is to
decide whether, as pleaded,’ a claim is independent of
the CBA.” Id. at 59a (quoting id. at 24a). That
approach, according to the dissent, is “not only
baseless and illogical, but contrary to Supreme Court
and [Ninth Circuit] precedent.” Id.
As Judge Ikuta explained, this Court has longheld that in deciding the scope of preemption under
the RLA and Section 301 of the LMRA, “federal courts
must understand the claim’s legal character to
determine whether the state-law cause of action is . . .
‘substantially dependent on analysis of a collective1
As Judge Ikuta explained, respondents’ claim that the
WFCA created a non-negotiable right to use leave to care for
family members regardless of a CBA’s rules not only is
contradicted by the express terms of the statute but also was
based on a “late-blooming” interpretation manufactured for this
litigation. App. 53a (quoting Livadas v. Bradshaw, 512 U.S. 107,
126 (1994)).
14
bargaining agreement’”—a task that necessarily
“involves interpreting state law.” Id. at 59a-60a
(citation omitted).
In particular, Judge Ikuta
continued, the majority’s holding is in clear conflict
with this Court’s decision in United Steelworkers of
America, AFL-CIO-CLC v. Rawson, 495 U.S. 362, 364
(1990). Id. at 62a; see infra at 24-25.
The upshot, Judge Ikuta observed, is that the
majority’s rule that “a court must take a plaintiff’s
pleadings at face value” in determining RLA
preemption “‘permit[s] an individual to sidestep
available grievance procedures’ through clever
pleading.” Id. at 72a-73a (alteration in original)
(citation omitted). This, in turn, “‘would cause
arbitration to lose most of its effectiveness, as well as
eviscerate 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.” Id. at 73a (quoting Lueck, 471 U.S. at
220). And this, too, “is contrary to Supreme Court
precedent and common sense.” Id. at 71a.
REASONS FOR GRANTING THE WRIT
The Ninth Circuit’s 6-5 en banc decision in this
case meets all the conventional criteria for certiorari.
The Ninth Circuit’s decision squarely conflicts with
the decisions of other courts of appeals. As Judge
Ikuta explained, the Ninth Circuit’s decision is also
“directly contrary to decades of the Supreme Court’s
preemption decisions.” App. 39a (dissent). And the
Ninth Circuit’s decision undermines a crucially
important component of the Nation’s labor laws,
designed to promote labor-management relations and
minimize disruptions in critical transportation
services. The petition should be granted.
15
A. The Decision Below Conflicts With The
Decisions Of Other Courts Of Appeals
The Ninth Circuit’s decision holds that, in gauging
preemption, a federal court lacks authority to
interpret state law in order to determine whether a
state law claim will require interpretation or
application of a CBA. Id. at 23a-24a. Under the
Ninth Circuit’s new rule, whenever a plaintiff pleads
any theory of state law under which an interpretation
of the CBA is not required, arbitration is avoided and
the entire dispute—including any subsequent
interpretation or application of the CBA—must be
decided by a state agency or court. As Judge Ikuta
explained, the decision effectively “precludes any
consideration of the state law governing a cause of
action” and leaves “a federal court’s ‘only job . . . to
decide whether, as pleaded,’ a claim is independent of
the CBA.” Id. at 59a (citation omitted).
1. That holding directly conflicts with the
Seventh Circuit’s decision in Tifft v. Commonwealth
Edison Co., 366 F.3d 513 (7th Cir. 2004). In Tifft, a
group of ex-employees filed suit against their
employer, alleging wrongful termination in violation
of the Illinois Electric Services Law (ESL). Id. at 51516. Plaintiffs alleged that their termination or
demotion following their employer’s merger violated a
provision of the ESL dictating that, “following the
transfer of ownership of an Illinois electric utility,
such an entity must maintain the ‘status quo’ of all
non-supervisory utility employees’ compensation and
cannot either lay off or demote such workers for at
least thirty months.” Id. at 517.
Defendants removed the case on the ground that
it was preempted under Section 301 of the LMRA
16
because the state law claims would involve
interpretation or application of a CBA. And Plaintiffs
responded exactly as WA L&I did here—by arguing
that “there is no preemption because no (or very little)
interpretation of the CBA is necessary” under their
state law theory of the case. Id. As the court
explained, “Plaintiffs” asserted that because they
“were laid off or demoted within thirty months of the
merger . . . Defendants are clearly liable for damages
under their reading, [and] a court need not look to the
CBA or any other agreement.” Id.
Under the Ninth Circuit’s rule, that would have
ended the preemption inquiry. As the Seventh Circuit
acknowledged, if the employees’ theory of state law
were correct, there would be “no need to interpret the
CBA or any other agreements, their state law claim
would be independent of the CBA, and their claims
would not have been preempted by Section 301 of the
LMRA.” Id. at 519. But the Seventh Circuit
“disagree[d]” with this interpretation of Illinois law,
id. at 517—the very thing that the Ninth Circuit held
a federal court lacks authority to do. And then the
Seventh Circuit held that the ESL required only that
an employer provide a “workforce reduction plan” and
a “transition plan” for laid off workers, and because
these plans were negotiated pursuant to a CBA, the
adequacy of the plans and whether they complied
with the ESL would require interpretation of a CBA.
Id. at 518-20. Accordingly, the court held that the
claim was preempted under Section 301. Id. at 520.
The Ninth Circuit’s decision in this case squarely
conflicts with the Seventh Circuit’s decision in Tifft.
Under the Ninth Circuit’s rule, the fact that plaintiffs
pleaded a theory of state law that did not require
resort to a CBA would be sufficient to avoid
17
preemption. And under the Ninth Circuit’s rule the
court in Tifft would have lacked authority to interpret
the provisions of the ESL to determine whether
plaintiffs’ reading (that the statute categorically bars
layoffs for thirty months) is a valid one. Instead,
because that threshold question is “for the state
court” to decide, the Ninth Circuit would have
committed the dispute to a state court or agency, and
not the arbitrator—even if, as the Seventh Circuit
subsequently found, the best interpretation of state
law would result in the state court or agency
interpreting the CBA. There is no way to reconcile the
approaches taken in the decision below and in Tifft.
2. The decision below also conflicts with the
Fourth Circuit’s decision in Barton v. House of
Raeford Farms, Inc., 745 F.3d 95 (4th Cir.), cert.
denied, 135 S. Ct. 160 (2014). There, employees at a
chicken processing plant brought claims for
underpayment of wages in violation of the South
Carolina Wages Act (SCWA). Defendant asserted
that the claims were preempted because its payment
obligations depended on an interpretation of the CBA.
The district court held that the SCWA “claims were
not preempted because the plaintiffs’ theory of
recovery did not depend on the meaning of the CBA
but on the alleged breach of separate agreements to
pay ‘clock time.’” Id. at 101 (emphasis added).
The Fourth Circuit, in an opinion written by Judge
Niemeyer, reversed. The court noted that plaintiffs
expressly “disavow[ed] reliance on the collective
bargaining agreement [for the relevant claim] and
assert[ed] that their claims are based on a notice
provision of the [SCWA].” Id. at 108. Under that
theory of state law, the plaintiffs asserted, “[n]o resort
to any CBA was necessary” because a jury merely had
18
“to determine [plaintiffs] were not told that they
would be paid based on ‘line time’ when they were
hired.” Id. (alteration in original) (citation omitted).
The
court,
however,
disagreed
with
this
interpretation, holding that “the far more natural
reading of [the notice provision] is that it [requires
employers to notify] when and where wages are to be
paid, not the amount of wages due to an employee.”
Id. Accordingly, the Fourth Circuit held that any
right to recover unpaid wages must stem from the
CBA, and that “plaintiffs’ [contrary] approach would
undermine one of the fundamental goals of § 301
preemption by allowing employees covered by a
collective bargaining agreement to circumvent their
arbitration commitments.” Id. at 109.
As with Tifft, the approach adopted by the Fourth
Circuit in Barton—which looked beyond plaintiffs’
theory of the state law claim to examine the actual
nature and legal character of the claim—conflicts
with the rule adopted by the Ninth Circuit here.
Under the Ninth Circuit’s rule, the Fourth Circuit
would have lacked authority to interpret the SCWA
to determine if the plaintiffs’ claims in substance
turned on an interpretation of the CBA. As soon as
plaintiffs pleaded a state law theory of recovery which
would entitle them to relief notwithstanding the
terms of the CBA, the inquiry must be at an end. The
result in Barton would thus have been the opposite
under the Ninth Circuit’s approach.
3. The Ninth Circuit’s new preemption rule also
is at odds with the decisions of other courts of appeals.
For example, the First Circuit has adopted a rule
under which a claim is preempted under the RLA and
Section 301 if “‘resolution’ of [that] claim ‘arguably
hinges upon an interpretation of the collective
19
bargaining agreement.’” Rueli v. Baystate Health,
Inc., 835 F.3d 53, 58 (1st Cir. 2016) (emphasis added)
(citation omitted); see also O’Brien v. Consol. Rail
Corp., 972 F.2d 1, 5 (1st Cir. 1992) (adopting the
Section 301 standard for cases under the RLA). As
the First Circuit explained in Rueli, “[t]he qualifier
‘arguably’ is necessary because, at the outset of a case
. . . ‘we cannot know the exact contours of the wage
dispute and the precise CBA terms likely to require
interpretation cannot be certain.’” 835 F.3d at 58-59
(citation omitted). But that caveat is unnecessary
under the Ninth Circuit’s approach, which looks only
to the face of the claim pleaded by the plaintiff.
Thus, while the Seventh and Fourth Circuits
interpret state law in order to determine the best
reading of a state provision, the First Circuit holds
that a claim is preempted if there is even an arguable
reading of state law under which a CBA needs to be
interpreted. The Ninth Circuit’s decision in this case
lies at the other end of the spectrum: it holds that
only those claims that indisputably involve
interpretation of a CBA—i.e., do so without any initial
construction or interpretation of state law—are
preempted. In other words, the Ninth Circuit’s new
rule is effectively the inverse of the First Circuit’s.
The fact that four different circuits have now crafted
tests across the entire range of this spectrum
underscores the need for this Court’s intervention.
The Ninth Circuit’s rule also contradicts the
approach followed by the Eighth Circuit. In Gore v.
Trans World Airlines, for example, the Eighth Circuit
addressed a plaintiff’s state law claims of false arrest,
negligence, libel and slander, and invasion of privacy
against his employer. 210 F.3d 944, 949-50 (8th Cir.
2000), cert. denied, 532 U.S. 921 (2001).
The
20
plaintiff’s “complaint ple[d] th[e] essential element[s]
generically, avoiding any mention of the relative
rights and duties contained within the collective
bargaining agreement.” Id. at 950. With reference to
state court cases, the Eighth Circuit carefully
examined the elements of each of these state law
causes of action to determine whether the “resolution
of [his] claim[s] depend[ed] on an interpretation of the
[collective bargaining agreement].” Id. at 949 (last
alteration in original) (citation omitted).
The Sixth Circuit took a similar approach in DeCoe
v. General Motors Corp., 32 F.3d 212 (6th Cir. 1994).
There, where a plaintiff brought various state law tort
claims against his former employer. The court held
that, in determining whether these claims were
preempted under Section 301, “the court is not bound
by the ‘well-pleaded complaint’ rule, but rather, looks
to the essence of the plaintiff's claim, in order to
determine whether the plaintiff is attempting to
disguise what is essentially a contract claim as a tort.”
Id. at 216 (emphasis added). As the Eighth Circuit
did in Gore, the court then examined the elements of
each state law cause of action to determine whether
in substance the resolution of those claims would
require an interpretation of the CBA.
Other circuits have adopted similar approaches.
See, e.g., Vera v. Saks & Co., 335 F.3d 109, 115 (2d
Cir. 2003) (noting that “Plaintiff asserts that section
193 [a New York statute] creates state rights that are
independent of the CBA, that is, that he can establish
defendant’s liability under section 193 without any
analysis of the terms of the CBA,” but holding, based
on the court’s own assessment of New York law, that
in fact a court “must interpret the CBA” in order to
resolve the claim); Pennsylvania Fed’n of the Bhd. of
21
Maint. of Way Employees v. National R.R. Passenger
Corp., 989 F.2d 112, 115 (3d Cir. 1993) (Plaintiffs
“argue that we can resolve this dispute merely by
construing Pennsylvania law, particularly the term
‘hours worked’ as defined in 34 Pa.Code § 231.1,” but
the claim is nonetheless preempted because it is in
fact “impossible to [resolve the claim] without
interpreting the collective bargaining agreement)”;
Kollar v. United Transp. Union, 83 F.3d 124, 126 (5th
Cir. 1996) (“While Plaintiffs couch their claim in
terms of fraud, resolution of their claim nonetheless
requires interpretation of the CBA”); Ertle v.
Continental Airlines, Inc., 136 F.3d 690, 694 (10th
Cir. 1998) (construing Colorado’s law of fraudulent
concealment to determine whether claim would in
fact depend on interpretation of the CBA).
In short, the Ninth Circuit’s new rule that a
federal court lacks authority to go beyond the
pleadings in determining whether an employmentrelated claim is preempted under the RLA and
Section 301 of the LMRA directly conflicts with the
decisions of other circuits and cannot be reconciled
with the approach used in any other circuit.
B. The Decision Below Conflicts With The
Decisions Of This Court
As Judge Ikuta explained, the Ninth Circuit’s
decision also is “directly contrary to decades of the
Supreme Court’s preemption decisions and impairs or
extinguishes RLA preemption” and preemption under
Section 301 of the LMRA. App. 39a (dissent).
1. The RLA requires arbitration of disputes that
“grow[] out of grievances or out of the interpretation
or application of agreements covering rates of pay,
rules, or working conditions.” 45 U.S.C. § 151a.
22
Section 301 likewise requires that claims involving
interpretation of a CBA be addressed in federal court
under the “heavy presumption that claims requiring
interpretation of [a] CBA are arbitrable.” Rueli, 835
F.3d at 59. Thus, when a plaintiff pleads a state law
claim, the RLA and Section 301 both require a court
to assess whether “resolution” of that claim involves
“interpretation or application” of a CBA. AllisChalmers Corp. v. Lueck, 471 U.S. 202, 210, 213-14
(1985); see also Hawaiian Airlines, Inc. v. Norris, 512
U.S. 246, 260 (1994) (applying the standard from
Lueck to the RLA). If it does, then, as a matter of
federal law, the claim is preempted. “While the
nature of the state [rule] is a matter of state law, the
question whether the [state law] is sufficiently
independent of federal contract interpretation to
avoid pre-emption is, of course, a question of federal
law.” Lueck, 471 U.S. at 213-14.
The Ninth Circuit’s decision in this case flouts this
settled principle. As the majority itself recognized, “a
dispute exist[ed] over whether Masserant truly
‘earned’ her vacation and was ‘entitled’ to take it
within the meaning of the WFCA.” App. 31a. The
majority reasoned however, that “those terms . . . are
contained within the WFCA, not the CBA,” and that
a “dispute over their meaning is a dispute over state
law.” Id. In the majority’s view, the court lacked
“jurisdiction” to answer that question of state law,
and it therefore held that Masserant’s claim was not
subject to RLA arbitration and must be resolved
instead in the state system. Id. at 33a.
The Ninth Circuit failed to appreciate, however,
that the parties’ “dispute over state law” bears on the
answer to a federal question it was obligated to
resolve. On Alaska Airlines’s interpretation of state
23
law, the WFCA does require “interpretation or
application of” the CBA. In particular, it requires a
court to determine whether the CBA “entitled”
Masserant to reschedule her paid vacation days in
December to cover her unexpected absence in May. If
the CBA does not (as Alaska Airlines maintains, see
Alaska Airlines CA9 Br. 42-54), then neither does the
WFCA, which is explicitly tied to the terms of CBA.
Masserant reads state law differently. “Her view
of the WFCA . . . is that the statute’s ‘choice of leave’
exception applies to banked vacation already earned,
even if under [the CBA],” she is not permitted to
reschedule her “prescheduled vacation.” App. 29a.
But the crucial point is that, if Alaska Airlines is
correct, then “resolution” of Masserant’s claim would
turn on an interpretation or application of the CBA.
Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 486
U.S. 399, 405-06 (1988). As a result, a federal court
cannot simply avoid addressing state law. It has no
choice but to resolve the parties dispute over the
meaning of state law—because doing so is a necessary
step in answering the federal question of whether
resolution of the state claim will require
interpretation of the CBA. Indeed, federal courts
decide issues of state law all the time in adjudicating
disputes; there is no reason to believe—as the Ninth
Circuit appeared to—that they are ill-equipped or
without authority to do so in this context.2
2
At oral argument before the Ninth Circuit en banc panel,
both L&I and the union purported to waive Masserant’s claim
that the CBA entitled her to reschedule her vacation days, and
thus asserted that resolution of Masserant’s claim will no longer
require interpretation of the CBA. As Judge Ikuta pointed out,
however, Masserant herself (who alone filed the initial
complaint in this case) “did not concede [her] right[s] under the
24
The Ninth Circuit’s alternative approach—under
which federal courts cannot go beyond the
pleadings—abdicates a federal court’s crucial gatekeeping function under the RLA and Section 301 of
the LMRA. If federal courts simply lack authority to
construe or interpret state law (even when doing so is
an essential step in determining preemption), then, as
Judge Ikuta observed, a plaintiff can avoid labor
arbitration simply by pleading a theory of state law
that avoids interpretation of the CBA, no matter how
implausible that theory may be. See App. 72a-73a.
That subordinates the availability of arbitration to
the creativity of “clever pleading.” Id. at 72a.
2. It hardly comes as a surprise that this Court
has previously engaged in precisely the type of
inquiry into state law that the Ninth Circuit’s opinion
deems beyond a federal court’s authority.
As Judge Ikuta explained, Rawson is a prime
example. App. 60a-62a. There, plaintiffs sued their
union under state law, asserting that the “duty to
perform [a mine] inspection reasonably arose from the
fact of the inspection itself rather than the fact that
the provision for the Union’s participation in mine
CBA” and “[n]either AFA nor L&I represent Masserant in this
appeal, and neither claims to have authority to waive
Masserant’s access to the CBA’s dispute resolution mechanism.”
App. 56a (dissent). In any event, the Ninth Circuit’s holding
does not rest on any concession of Masserant’s CBA-based claim.
Instead, the en banc majority broadly held that it lacked
authority to construe the WFCA in order to determine whether
resolution of Masserant’s claim would require interpretation of
the CBA. That holding would result in the case being sent to
state court, and not the arbitrator, irrespective of whether
Masserant had in fact waived her CBA-based claim. The Ninth
Circuit’s holding therefore is not based on—and sweeps far more
broadly than—any concession attempted by L&I or the union.
25
inspection was contained in the labor contract.”
Rawson, 495 U.S. at 370-71. As the Ninth Circuit
concluded Masserant had done here, the plaintiffs in
Rawson pleaded a theory of state law that would have
permitted recovery without reference to the CBA.
Under the Ninth Circuit’s rule, that would have
defeated preemption. Instead, the Court in Rawson
carefully analyzed the Idaho Supreme Court’s opinion
on the duty of care to understand the nature and
scope of state law. Id. Having conducted its own
analysis of state law, Rawson rejected the plaintiffs’
claim that there was a colorable interpretation of
state law that 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. In other words, as Judge Ikuta
explained, “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.” App. 62a (dissent).
The Ninth Circuit’s decision likewise cannot be
reconciled with this Court’s decision in Lueck. There
an employee raised a tort claim against his employer
for bad faith in the administration of the employee’s
disability benefits. While the plaintiff, as here,
“asserted that the tort claim [was] independent of any
contract claim” that might require interpretation of
the CBA, this Court held that “[u]nder Wisconsin law,
the tort intrinsically relates to the nature and
existence of the contract.” 471 U.S. at 213, 216 (citing
Hilker v. Western Automobile Ins. Co., 235 N.W. 413,
26
414-15 (Wis. 1931)). In other words, the Court
interpreted state law in order to determine whether
the resolution of a claim which, as pleaded, avoids
mention of a CBA would in reality require its
interpretation. That is an inquiry that cannot be
reconciled with the Ninth Circuit’s holding that
federal courts simply lack authority to make
threshold determinations of state law.
In short, it is “well established” under this Court’s
precedent “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
. . . preemption question” under the RLA and Section
301 of the LMRA. App. 64a (dissent). The Ninth
Circuit’s decision in this case eliminating that
“essential step” warrants this Court’s review.
C. The Question Presented Is Exceptionally
Important And Warrants Review Here
1. The Ninth Circuit’s unprecedented approach to
RLA preemption will have immediate and farreaching consequences. As noted above and stressed
by Judge Ikuta, a plaintiff raising a CBA-based
grievance in the Ninth Circuit now need only allege a
threshold question of state law (however tenuous) in
order to avoid mandatory arbitration. And because,
as discussed, preemption under Section 301 of the
LMRA is “virtually identical” to that under the RLA,
the Ninth Circuit’s holding will affect every industry
whose labor relations are governed by a CBA. Tens of
thousands of employment-related grievances are filed
each year, and the Ninth Circuit’s rule—covering
approximately a third of the country—would permit
plaintiffs in such disputes to avoid mandatory
27
arbitration simply by asserting a theory of state law
that purportedly avoids interpretation of the CBA.
As this Court warned in Lueck, unless a federal
court may look through such artful pleading, “the
arbitrator’s role in every case could be bypassed
easily,” 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.” 471 U.S. at 219-20. This
would “eviscerate a central tenet of federal laborcontract law”—“that it is the arbitrator, not the court,
who has the responsibility to interpret the labor
contract in the first instance.” Id. at 220; see also
Sheehan, 439 U.S. at 94 (“Congress considered it
essential to keep these so-called “minor” disputes
within the Adjustment Board and out of the courts.”).
Furthermore, such an outcome will inevitably lead
to “inconsistent results since there could be as many
state-law principles as there are States.” Lingle, 486
U.S. at 405-06. Multistate CBAs could be routinely
subject to divergent interpretations depending on the
State in which the claim is brought, directly
undermining federal labor policy. The decision below
could thereby re-open a vast number of interpretative
disputes that had been previously settled in
arbitration, and force employers to serially litigate
those issues in various state courts—an outcome that
fundamentally undercuts the value of a nationwide
CBA. Sheehan, 439 U.S. at 94 (“The effectiveness of
the Adjustment Board in fulfilling its task depends on
the finality of its determinations.”).
Moreover, as this Court has recognized, even the
possibility of inconsistent application of a CBA makes
“the process of negotiating an agreement . . .
28
immeasurably more difficult,” as employers become
reluctant to cede benefits to employees, knowing that
the obligations they receive in return will be
uncertain and subject to collateral attack in the state
courts.
Local 174, Teamsters, Chauffeurs,
Warehousemen & Helpers of Am. v. Lucas Flour Co.,
369 U.S. 95, 103 (1962). The specter of such
inconsistency may also burden negotiations over
sensitive labor-management issues as employers and
unions struggle to “formulate contract provisions in
such a way as to contain the same meaning under two
or more systems of law which might someday be
invoked in enforcing the contract.” Id.
These concerns are all the more acute in the
airline industry, because airlines operate nationwide,
have a highly mobile workforce, and rely on the
consistency of CBA terms across jurisdictions.
Indeed, as Judge Ikuta noted, flight attendant
absences “pose unique concerns in the airline
industry” because “[u]nder FAA regulations, a plane
cannot take off without the requisite number of flight
attendants on board.” App. 57a-58a. To ensure “the
basic operations of an air carrier,” carriers rely on
their “negotiations with [unions] for detailed
scheduling of leave, attendance, and absence, as
embodied in the CBA.” Id. at 58a. And 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 . . . .” Id.
29
The inconsistency and confusion that will be
engendered by the decision below regarding the
provisions of a carrier’s multistate CBA may severely
interfere with its ability to safely staff and operate its
flights. The same goes for railroads impacted by the
Ninth Circuit’s decision, which are also subject to the
RLA, as well as numerous other employers that may
be subject to Section 301 of the LMRA.
2. The Ninth Circuit’s decision requires this
Court’s immediate intervention.
The decision
provides a roadmap for plaintiffs seeking to avoid
labor arbitration; those lawsuits will not only impose
burdens on the providers of critical transportation
services like airlines and railroads, but because of the
LMRA, will impact labor-management relations
across a vast range of industries. As noted above,
even the prospect of divergent interpretations of
CBAs will upset settled expectations of employers and
employees across the vast swath of the country
governed by Ninth Circuit law. Postponing review
would create significant uncertainty and hardship.
Indeed, the Ninth Circuit has already channeled
other disputes away from arbitration and to the
courts in reliance on the decision below, underscoring
the broad sweep of the decision in this case. See, e.g.,
McCray v. Marriott Hotel Servs., Inc., 902 F.3d 1005
(9th Cir. 2018). In McCray, a plaintiff raised a claim
under a San Jose ordinance guaranteeing all
employees a minimum wage of $10 an hour. Id. at
1007-08. The ordinance, however, expressly provided
that, “‘To the extent required by federal law,’ . . . ‘all
or any portion of the applicable requirements of [the
ordinance] may be waived in a bona fide collective
bargaining agreement.’”
Id. at 1008 (citation
omitted). Like the WFCA, therefore, the San Jose
30
ordinance made application of a state law right
contingent on the provisions of a CBA. And the
plaintiff’s employer in McCray had agreed with the
plaintiff’s union to waive this provision of the San
Jose ordinance in exchange for various other benefits.
The plaintiff nonetheless brought a state law
claim based on the ordinance. And, like Masserant
here, he argued that his claim was not subject to
preemption because he had a theory of state law under
which no interpretation of the CBA was required. His
theory was that (despite the clear language of the
ordinance permitting waiver) the ordinance’s
protections could in fact not be waived by a CBA.3
Even though that interpretation of the ordinance’s
language was patently meritless, a panel of the Ninth
Circuit, relying on the decision below, nonetheless
held that the claim must be litigated in state court.
As the McCray dissent explained, “[t]he majority
concludes that because [an] initial question involves
interpretation of the ordinance under state law, the
entire case must be resolved in state court” even
though “that initial issue concerning interpretation of
the ordinance raises no serious question.” Id. at 1014
(Schroeder, J., dissenting). That was error, the
dissent explained, because “the issue is not whether
3
Specifically, McCray argued that the ordinance’s text only
permitted waivers when “required by federal law.” 902 F.3d at
1012. As the City’s own guidelines—which carry the force of
law—explained, the reference to “federal law” in the ordinance’s
text concerns the federal requirement that waivers of statutory
rights in CBAs be express. That is, for a waiver from state law
to be effective it is “required by federal law” that it be part of the
written terms of the CBA. McCray’s interpretation, by contrast,
would render the waiver provision a complete nullity because no
waiver is ever “required by federal law.”
31
the complaint frames the case in terms of the CBA,
but whether resolution of the claims will depend on
analyzing the agreement.” Id. at 1015. As a result of
the majority’s refusal to address this meritless
threshold question of state law, a court—not an
arbitrator—will end up deciding a “challenge [to] the
basic wage rate, a core subject of virtually all
collective bargaining negotiations.” Id.
3. Finally, this case presents an ideal vehicle to
address this important issue. The decision below is a
final judgment that conclusively determines the
parties’ obligations under the RLA and requires the
adjudication of this dispute outside of the labor
arbitration mechanism established by Congress. The
petition arises from a 6-5 en banc decision in which
this Court has the benefit of lengthy majority and
dissenting opinions addressing the question
presented. The issue arises in an industry in which
the concerns created by the Ninth Circuit rule are
especially acute. And the issue is clearly framed
because this case involves a disputed threshold
question of state law, and the answer to that
threshold question will determine whether or not the
plaintiff’s claim involves interpretation or application
of the CBA, and is therefore preempted.
32
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
MARK A. HUTCHESON
REBECCA G. FRANCIS
DAVIS WRIGHT
TREMAINE LLP
1201 Third Avenue
Suite 2200
Seattle, WA 98101
(206) 622-3150
GREGORY G. GARRE
Counsel of Record
SAMIR DEGER-SEN
JIN H. LEE
LATHAM & WATKINS LLP
555 Eleventh Street, NW
Suite 1000
Washington, DC 20004
(202) 637-2207
gregory.garre@lw.com
Counsel for Petitioner
October 30, 2018
APPENDIX
TABLE OF CONTENTS
Page
Opinion of the United States Court of Appeals
for the Ninth Circuit, Alaska Airlines Inc.
v. Schurke, 898 F.3d 904 (9th Cir. 2018) (en
banc) ....................................................................1a
Opinion of the United States Court of Appeals
for the Ninth Circuit, Alaska Airlines Inc.
v. Schurke, 846 F.3d 1081 (9th Cir. 2017)
(initial panel) ....................................................75a
Order of the United States District Court for
the Western District of Washington
Granting Defendants’ and Intervenors’
Motions for Summary Judgment and
Denying Plaintiff’s Motion for Summary
Judgment, Alaska Airlines Inc. v. Schurke,
No. C11–0616JLR, 2013 WL 2402944 (D.
Wash. May 31, 2013) ......................................112a
29 U.S.C. § 185 ......................................................135a
45 U.S.C. § 151a ....................................................137a
45 U.S.C. § 184 ......................................................138a
Washington Revised Code § 49.12.270 .................140a
Excerpts from Exhibit B to Complaint for
Injunctive
and
Declaratory
Relief:
Collective
Bargaining
Agreement
(ER1109-1106, ER1129) .................................141a
1a
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALASKA AIRLINES INC., an Alaska corporation,
Plaintiff-Appellant,
v.
Judy SCHURKE, in her official capacity as Director
of the State of 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, IntervenorDefendant-Appellee.
No. 13-35574
Argued and Submitted En Banc
September 19, 2017—San Francisco, California
Filed August 1, 2018
898 F.3d 904
Before: Sidney R. Thomas, Chief Judge, and M.
Margaret McKeown, Richard A. Paez,* Marsha S.
Berzon, Richard C. Tallman, Consuelo M. Callahan,
*
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.
2a
Carlos T. Bea, Milan D. Smith, Jr., Sandra S. Ikuta,
Jacqueline H. Nguyen and Andrew D. Hurwitz,
Circuit Judges.
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, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994); Lingle v.
Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413, 108
S.Ct. 1877, 100 L.Ed.2d 410 (1988). Consistent with
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, 114 S.Ct. 2239, 129 L.Ed.2d 203
(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, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987);
Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th
Cir. 2009); see also infra note 15.
3a
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); 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
4a
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”), 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
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).
5a
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 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
6a
where the state law claim can be resolved
independently of any CBA dispute. Norris, 512 U.S.
at 256–58, 114 S.Ct. 2239; see also Lingle, 486 U.S. at
407, 108 S.Ct. 1877 (describing the same standard in
the LMRA § 301 context).
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, 99 S.Ct. 2121, 60 L.Ed.2d 698
(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
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].”
7a
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 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, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994); Lingle,
486 U.S. at 407, 108 S.Ct. 1877; 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
8a
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 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, 114 S.Ct. 2239.
Within this framework, labor disputes are first
categorized as “representation,” “major,” or “minor,”
according to their subject matter,5 then assigned to a
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.
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,
9a
corresponding dispute-resolution mechanism. See W.
Airlines, Inc. v. Int’l Bhd. of Teamsters, 480 U.S. 1301,
1302–03, 107 S.Ct. 1515, 94 L.Ed.2d 744 (1987)
(O’Connor, J., in chambers).
“Representation” disputes concern the scope of the
bargaining unit and the identity of the bargaining
representative. Id. at 1302, 107 S.Ct. 1515. Under
section 2, Ninth, of the RLA, representation disputes
must be resolved by the National Mediation Board.
Id. at 1302–03, 107 S.Ct. 1515; 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, 109 S.Ct. 2477, 105 L.Ed.2d 250
(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, 109 S.Ct. 2477 (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, 109 S.Ct. 2477.
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, 109 S.Ct. 2477. 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, 114
S.Ct. 2239; see also Conrail, 491 U.S. at 302, 109 S.Ct.
J. & E. Ry. Co. v. Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 89
L.Ed. 1886 (1945), and remain in common use.
10a
2477 (“[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.
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, AllisChalmers Corp. v. Lueck, 471 U.S. 202, 208–11, 105
S.Ct. 1904, 85 L.Ed.2d 206 (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, 114 S.Ct. 2239 (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, 114 S.Ct. 2239; Bowen v. U.S.
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. § 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, 109 S.Ct. 2477.
11a
Postal Serv., 459 U.S. 212, 225, 103 S.Ct. 588, 74
L.Ed.2d 402 (1983); see 45 U.S.C. § 151a. As in the
LMRA context,7 the arbitration of CBA disputes in
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,
80 S.Ct. 1347, 4 L.Ed.2d 1409 (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 selfgovernment.” Id. at 580, 80 S.Ct.
1347; see also California v. Taylor, 353 U.S. 553, 565–
66, 77 S.Ct. 1037, 1 L.Ed.2d 1034 (1957). A CBA sets
forth “a generalized code to govern . . . the whole
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, 79 S.Ct. 1351, 3 L.Ed.2d 1460
(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, 77
S.Ct. 912, 1 L.Ed.2d 972 (1957); see also Local 174, Teamsters v.
Lucas Flour Co., 369 U.S. 95, 103. 92 S/Ct/ 581, 7 L.Ed.2d 593
(1962). Such terms are not mandated by statute. But as, in
practice, “[a]rbitrators are delegated by nearly all [CBAs] as the
adjudicators of contract disputes,” Lingle, 486 U.S. at 411 n.11,
108 S.Ct. 1877, 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, 105 S.Ct. 1904.
12a
employment relationship,” including situations
“which the draftsmen [could not] wholly anticipate.”
Steelworkers II, 363 U.S. at 578–79, 80 S.Ct. 1347.
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, 80 S.Ct. 1358, 4
L.Ed.2d 1424 (1960)—“a vehicle by which meaning
and content are given” to the labor agreement,
Steelworkers II, 363 U.S. at 581, 80 S.Ct. 1347. To set
aside the parties’ grievance and arbitration process is
to undo an integral part of the workplace selfgovernance scheme. Id. at 578, 80 S.Ct. 1347; Bhd. of
R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S.
369, 378, 89 S.Ct. 1109, 22 L.Ed.2d 344 (1969); see
also Conrail, 491 U.S. at 310–11, 109 S.Ct. 2477.
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 plant.” Steelworkers II, 363 U.S. at
579, 80 S.Ct. 1347. 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, 80 S.Ct. 1363, 4
L.Ed.2d 1432 (1960); see also Conrail, 491 U.S. at
311–12, 109 S.Ct. 2477. 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, 80 S.Ct.
1347—which a judge may lack the expertise properly
to balance.
Third, grievance and arbitration are believed to
provide certain procedural benefits, including a more
13a
“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 timeconsuming appeals which he may be less able to bear
than the [employer].” Union Pac. R.R. Co. v. Sheehan,
439 U.S. 89, 94, 99 S.Ct. 399, 58 L.Ed.2d 354 (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, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957), and so to
“diminish the risk of interruptions in commerce.”
Conrail, 491 U.S. at 311, 109 S.Ct. 2477.
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, 77 S.Ct.
1037).
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, 114 S.Ct. 2239—“must be
resolved only through the RLA mechanisms.” Id. at
253, 114 S.Ct. 2239; see also Atchison, Topeka &
Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 563, 107 S.Ct.
1410, 94 L.Ed.2d 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, 108
S.Ct. 1877.
Such limited preemption has other benefits as
well. In particular, it ensures that CBA disputes are
14a
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, 108 S.Ct.
1877,
rather
than
“conflicting
substantive
interpretation under competing [state] legal
systems.” Local 174, Teamsters v. Lucas Flour Co.,
369 U.S. 95, 104, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962);
see also Republic Steel Corp. v. Maddox, 379 U.S. 650,
654–57, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965); Int’l
Ass’n of Machinists v. Cent. Airlines, Inc., 372 U.S.
682, 691–95 & nn. 17–18, 83 S.Ct. 956, 10 L.Ed.2d 67
(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, 108 S.Ct. 1877;
see also Norris, 512 U.S. at 263 & n.9, 114 S.Ct. 2239.
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, 107 S.Ct. 1410. “[T]he enactment by
Congress of the Railway Labor Act was not a preemption of the field of regulating working conditions
themselves . . . .” Terminal R.R. Ass’n of St. Louis v.
Bhd. of R.R. Trainmen, 318 U.S. 1, 7, 63 S.Ct. 420, 87
L.Ed. 571 (1943).
Setting minimum wages,
regulating work hours and pay periods, requiring
paid and unpaid leave, protecting worker safety,
prohibiting discrimination in employment, and
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.
15a
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, 114 S.Ct.
2239.
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, 99 S.Ct. 2121, 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, 105 S.Ct. 1904.
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, 105 S.Ct. 1904,
make reference to a CBA-defined right, Livadas, 512
U.S. at 125, 114 S.Ct. 2068, or create a state law cause
of action factually “parallel” to a grievable claim,
Lingle, 486 U.S. at 408–10, 108 S.Ct. 1877. Rather,
“an application of state law is pre-empted . . . only if
such application requires the interpretation of a
16a
collective-bargaining agreement.”9 Id. at 413, 108
S.Ct. 1877. 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, 114 S.Ct. 2239.
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, 107 S.Ct. 1410.
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 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
17a
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, 114 S.Ct. 2068. 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, 105 S.Ct. 1904—it is, in effect, a CBA
dispute in state law garb, and is preempted. Livadas,
512 U.S. at 122–23, 114 S.Ct. 2068. In such cases, the
CBA is the “only source” of the right the plaintiff
seeks to vindicate. Norris, 512 U.S. at 258, 114 S.Ct.
2239 (quoting Andrews v. Louisville & Nashville R.R.
Co., 406 U.S. 320, 324, 92 S.Ct. 1562, 32 L.Ed.2d 95
(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, 108 S.Ct. 1877,
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, 80
S.Ct. 1363. For the same reason, there is no part of
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, 105 S.Ct. 1904.
18a
the claim in which the uniform body of federal labor
law does not control the resolution of the parties’
dispute. See Maddox, 379 U.S. at 654–57, 85 S.Ct.
614; Cent. Airlines, 372 U.S. at 691–95 & nn. 17–18,
83 S.Ct. 956; Lucas Flour, 369 U.S. at 104, 82 S.Ct.
571.
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, 114 S.Ct. 2068; rely in part
on a CBA’s terms of employment, Lueck, 471 U.S. at
211, 105 S.Ct. 1904; run parallel to a CBA violation,
Lingle, 486 U.S. at 408–10, 108 S.Ct. 1877; or invite
use of the CBA as a defense, Caterpillar Inc. v.
Williams, 482 U.S. 386, 398, 107 S.Ct. 2425, 96
L.Ed.2d 318 (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, 114 S.Ct. 2239; Livadas, 512
U.S. at 124–25, 114 S.Ct. 2068. “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
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,
108 S.Ct. 1877 (“[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
19a
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, 114 S.Ct. 2068. “[A] hypothetical
connection between the claim and the terms of the
CBA is not enough to preempt the 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, 114 S.Ct. 2068); to
identify “bargained-for wage rates in computing [a]
penalty,” Livadas, 512 U.S. at 125, 114 S.Ct. 2068; 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, 114 S.Ct. 2239. It is contrary to
the statutes’ scope to allow “the parties to a collectivebargaining agreement . . . to contract for what is
illegal under state law,” Lueck, 471 U.S. at 212, 105
S.Ct. 1904, 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, 105 S.Ct.
sort of dispute over CBA “application” would be preempted
under step one.
20a
2380, 85 L.Ed.2d 728 (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 a collective-bargaining
agreement.”14 Lingle, 486 U.S. at 409 n.8, 108 S.Ct.
1877; see also Livadas, 512 U.S. at 124 n.18, 114 S.Ct.
2068.
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.
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).
21a
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, 115 S.Ct. 1920,
131 L.Ed.2d 985 (1995). RLA and LMRA § 301
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
15 The dissent treats Aetna Health Inc. v. Davila, 542 U.S.
200, 209, 124 S.Ct. 2488, 159 L.Ed.2d 312 (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, 107 S.Ct. 2425. 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, 124 S.Ct. 2488. ERISA
preemption defenses, like LMRA § 301 defenses, are therefore
valid grounds for removal. Id. at 207–08, 124 S.Ct. 2488. Unlike
22a
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, 107 S.Ct. 2425 (“Section
301 governs claims . . . .”); see also, e.g., Norris, 512
U.S. at 266, 114 S.Ct. 2239 (“[R]espondent’s claims for
discharge in violation of public policy and in violation
of the Hawaii 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,
107 S.Ct. 2161, 95 L.Ed.2d 791 (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
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, 132 S.Ct. 103, 181 L.Ed.2d 30; 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, 124 S.Ct. 386, 157 L.Ed.2d 276.
23a
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 statelaw obligation, wholly independent of its obligations
under the CBA, there is no preemption.” (emphases
added) (citation omitted)).16
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, 114 S.Ct. 2068. 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
16 See also, e.g., United Steelworkers v. Rawson, 495 U.S.
362, 371, 110 S.Ct. 1904, 109 L.Ed.2d 362 (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, 107 S.Ct. 2161 (“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 collectivebargaining agreement, the Union—according to the complaint—
was then negligent . . . .” (citation omitted)).
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
24a
Steelworkers III, 363 U.S. at 599, 80 S.Ct. 1358. 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, 108 S.Ct. 1877.
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 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
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, 134 S.Ct. 584, 187 L.Ed.2d 505 (2013); Bud Antle, Inc. v.
Barbosa, 45 F.3d 1261, 1271–72 (9th Cir. 1994).
25a
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, 114 S.Ct. 2068. DLSE
refused to consider the complaint, citing the worker’s
CBA. Id. at 112–13, 114 S.Ct. 2068. 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, 114 S.Ct. 2068.
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. 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, 114 S.Ct. 2068 (“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,
114 S.Ct. 2068 (observing that, although CBA-defined
wages were used to calculate damages under the
26a
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, 114 S.Ct. 2068. 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
reached and became bound by a labor agreement.18
Livadas, 512 U.S. at 117 n.11, 114 S.Ct. 2068.
The differences between LMRA § 301 preemption
(and so RLA preemption) and ordinary, substantive
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, 113 S.Ct. 1190, 122 L.Ed.2d 565 (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, 96 S.Ct.
2548, 49 L.Ed.2d 396 (1976).
27a
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, 114 S.Ct. 2068. 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, 114 S.Ct.
2068. 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 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, 120 S.Ct. 2288, 147 L.Ed.2d 352
(2000), but rather by identifying the particular species
28a
of
labor
preemption—Garmon
preemption,19
20
Machinists preemption,
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, 113
S.Ct. 1190, 122 L.Ed.2d 565 (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, 105 S.Ct. 1904 (quoting Malone v.
White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185,
55 L.Ed.2d 443 (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, 114
S.Ct. 2239; Lingle, 486 U.S. at 408–09, 108 S.Ct. 1877;
Maddox, 379 U.S. at 654–57, 85 S.Ct. 614; Bhd. of
R.R. Trainmen, Enter. Lodge, No. 27 v. Toledo, Peoria
19 See San Diego Bldg. Trades Council, Millmen’s Union,
Local 2020 v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d
775 (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, 96 S.Ct. 2548 (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, 106
S.Ct. 1395, 89 L.Ed.2d 616 (1986).
29a
& W. R.R., 321 U.S. 50, 58, 64 S.Ct. 413, 88 L.Ed. 534
(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, 114 S.Ct. 2068. 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 CBAgoverned 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 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.
30a
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, 114
S.Ct. 2068. But reliance on and reference to CBAestablished 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 bereavement or
personal medical leave.21 The Airline argues that a
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
31a
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, 114
S.Ct. 2239. “[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 family medical
reasons is no less independent of the CBA if the CBA
event for the purposes of an RLA preemption analysis, see Buell,
480 U.S. at 565, 107 S.Ct. 1410—is somewhat overstated.
32a
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, 114 S.Ct. 2239; Lingle, 486
U.S. at 412–13, 108 S.Ct. 1877. 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 mentioned.24 The
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,
103 S.Ct. 588.
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.
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
33a
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, 114 S.Ct. 2239. And the dissent
would conclude—notwithstanding a state agency
ruling to the contrary, our lack of jurisdiction over the
underlying claim, 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
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.”).
34a
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, 107 S.Ct. 2425 (“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 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, 108 S.Ct. 1877. 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.
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.
35a
See Livadas, 512 U.S. at 116–17 & n.11, 114 S.Ct.
2068. Like the NLRA preemption at issue in Livadas,
RLA preemption cannot result in subjecting unionrepresented workers to a parallel system of
substandard state law rights. See 45 U.S.C. § 151a(2);
Livadas, 512 U.S. at 113–14, 114 S.Ct. 2068; see also
Metro. Life, 471 U.S. at 756, 105 S.Ct. 2380; 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 nonoverlapping competencies, and each must be
respected.27 See Steelworkers I, 363 U.S. at 568, 80
S.Ct. 1363.
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.
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, 108 S.Ct. 1877; 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, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); eBay Inc. v.
36a
E
Finally, although, for the reasons given, the merits
are not ours to decide,28 we observe that the dissent’s
MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164
L.Ed.2d 641 (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 AntiInjunction 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, 90 S.Ct. 1739, 26 L.Ed.2d 234 (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, 110 S.Ct. 1904.
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 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
37a
reading of 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 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.”).
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).
38a
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, 19 P.3d 1030 (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.
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.
39a
Opinion by Judge Berzon; Dissent by Judge Ikuta
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, 114 S.Ct.
2239, 129 L.Ed.2d 203 (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 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
40a
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 AttendantsCommunication 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 crewstaffing 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. 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
41a
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.”
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,
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.
42a
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 use my
remaining week of vacation for this occurrence. This
is earned time that I was denied to use.”2
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
43a
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 Airlines must allow her to use this
the CBA allowed a flight attendant to use vacation time to care
for a sick child.
44a
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 procedures. In district court, L&I
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 caseby-case basis.
45a
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 nonnegotiable 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
46a
Airlines, 512 U.S. at 253, 114 S.Ct. 2239. 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, 107 S.Ct. 1410, 94 L.Ed.2d 563
(1987) (quoting Union Pac. R.R. Co. v. Sheehan, 439
U.S. 89, 94, 99 S.Ct. 399, 58 L.Ed.2d 354 (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, 114
S.Ct. 2239 (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, 114 S.Ct. 2239; 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, 89 S.Ct. 1109, 22 L.Ed.2d 344 (1969), and the
key mechanism for “minimizing interruptions in the
5 The RLA was amended in 1936 to cover the air
transportation industry. 45 U.S.C. §§ 181–188.
47a
Nation’s transportation services,” Int’l Ass’n of
Machinists, AFL-CIO v. Cent. Airlines, Inc., 372 U.S.
682, 687, 83 S.Ct. 956, 10 L.Ed.2d 67 (1963).
Accordingly, the Supreme Court inferred that
Congress 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, 92 S.Ct. 1562, 32 L.Ed.2d 95 (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, 114 S.Ct. 2239.
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 collectivebargaining agreements” or that involves claims
“substantially dependent on analysis of a collectivebargaining agreement,” is governed by federal law.
Caterpillar Inc. v. Williams, 482 U.S. 386, 394, 107
S.Ct. 2425, 96 L.Ed.2d 318 (1987) (quoting Int’l Bhd.
of Elec. Workers, AFL-CIO v. Hechler, 481 U.S. 851,
859 n.3, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987)). When
resolution of the statelaw 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
6 The Supreme Court applies the same preemption
standard for the RLA and § 301 of the LMRA. Hawaiian
Airlines, 512 U.S. at 263, 114 S.Ct. 2239.
48a
Airlines, 512 U.S. at 252–53, 114 S.Ct. 2239.
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, 108 S.Ct. 1877, 100 L.Ed.2d 410
(1988); see also Allis-Chalmers Corp. v. Lueck, 471
U.S. 202, 210–11, 217–18, 105 S.Ct. 1904, 85 L.Ed.2d
206 (1985). Finally, even “if a law applied to all state
workers but required, at least in certain instances,
collective-bargaining agreement interpretation, the
application of the law in those instances would be
preempted.” Lingle, 486 U.S. at 407 n.7, 108 S.Ct.
1877.
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, 83 S.Ct. 1022, 10 L.Ed.2d 84 (1963);
Terminal R.R. Ass’n of St. Louis v. Bhd. of R.R.
Trainmen, 318 U.S. 1, 5–7, 63 S.Ct. 420, 87 L.Ed. 571
(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, 114 S.Ct.
2068, 129 L.Ed.2d 93 (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
49a
does not require the claim to be extinguished.”
Livadas, 512 U.S. at 124, 114 S.Ct. 2068.7
B
WFCA gives employees a state-law right which, by
its terms, is based on rights provided by a collective
bargaining agreement.8
Wash. Rev. Code
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, 114 S.Ct. 2239.
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.
50a
§ 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 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 § 296130-030, 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
(2) Use of leave other than sick leave or other paid
time off to care for a child, spouse, parent, parent-inlaw, 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).
51a
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 & 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
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 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).
52a
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 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
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
53a
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 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 “lateblooming 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, 114 S.Ct. 2068.
Similarly, in Burnside v. Kiewit Pacific Corp., we
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.”
54a
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, 132 S.Ct. 2156, 183 L.Ed.2d 153 (2012) (first
alteration in original) (first quoting Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 213, 109 S.Ct.
468, 102 L.Ed.2d 493 (1988); then quoting Auer v.
Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137
L.Ed.2d 79 (1997))). Washington courts take a similar
approach. See Waste Mgmt. of Seattle, Inc. v. Utils. &
Transp. Comm’n, 123 Wash. 2d 621, 627–28, 869 P.2d
1034 (1994) (Washington courts “will not defer to an
agency determination which conflicts with the
statute”); Cerrillo v. Esparza, 158 Wash. 2d 194, 205–
06, 142 P.3d 155 (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, regardless
of contrary interpretation by an administrative
agency” (quoting Agrilink Foods, Inc. v. State, Dep’t of
Revenue, 153 Wash. 2d 3
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