Opposition Brief — Alaska Airlines, Inc., Petitioner v. Judy Schurke, et al.

Supreme Court briefFeb 25, 2019

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No. 18-579

In the Supreme Court of the United States

ALASKA AIRLINES, INC.,

v.

PETITIONER,

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 WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

*Counsel of Record

ROBERT W. FERGUSON

Attorney General

NOAH G. PURCELL*

Solicitor General

ANNE E. EGELER

PETER B. GONICK

Deputy Solicitors General

JAMES P. MILLS

Senior Counsel

1125 Washington Street SE

Olympia, WA 98504-0100

360-753-6200

noah.purcell@atg.wa.gov

i

QUESTION PRESENTED

When a state agency enforces state law in an

administrative proceeding, and the action does not

turn in any way on the interpretation or enforcement

of a collective bargaining agreement, does the Railway

Labor Act divest the agency of jurisdiction to interpret

state law?

ii

TABLE OF CONTENTS

INTRODUCTION ........................................................ 1

STATEMENT OF THE CASE .................................... 3

A. The Washington Family Care Act Sets

Minimum Labor Standards ................................... 3

B. Alaska Airlines Denied a Washington

Mother the Right to Use Her Accrued

Leave to Care for Her Sick Child .......................... 4

C. The Department Issued a Notice of

Infraction to Alaska Airlines ................................. 5

D. Alaska Airlines Sought an Injunction

Preventing Enforcement of Washington’s

Family Care Act ..................................................... 6

E. After a Divided Ninth Circuit Panel Initially

Reversed, an En Banc Panel of the Ninth

Circuit Affirmed the Trial Court ........................... 7

REASONS FOR DENYING THE PETITION .......... 10

A. The Decision Below Is in Lockstep with

this Court’s Decisions .......................................... 10

1. This Court has consistently held that

the RLA does not preempt state labor

standards, it simply requires arbitration

of disputes that require enforcement or

interpretation of the CBA ............................. 10

2. There is no conflict with decisions of

this Court ........................................................ 16

B. The Opinion Below Creates No Conflict

Among the Circuits .............................................. 19

iii

1. Alaska Airlines inaccurately characterizes

the opinion below in claiming a conflict ........ 19

2. The courts of appeals have found RLA

preemption only when interpretation

of a CBA is required ....................................... 21

3. No circuit has preempted a state-law claim

based on minimum state labor standards

that did not require interpretation of a

disputed CBA provision .................................. 27

C. The Ninth Circuit Opinion Creates No

Risk of Circumvention or Inconsistent

Interpretation of CBAs ........................................ 30

D. The Rare Circumstances of this Case

Make It a Bad Vehicle for Addressing

RLA Preemption................................................... 33

CONCLUSION ..........................................................35

APPENDIX

Notice of Infraction (dated May 31, 2012)

(SER 205-08) ........................................................ 1a

1988 Wash. Sess. Laws 1094-96

(ch. 236, §§ 1-12)................................................... 6a

2002 Wash. Sess. Laws 1160-61

(ch. 243, §§ 1-4)................................................... 11a

iv

TABLE OF AUTHORITIES

Cases

Allis-Chambers Corp. v. Lueck,

471 U.S. 202 (1985)......................... 11, 14, 16-18, 34

Baker v. Kingsley,

387 F.3d 649 (7th Cir. 2004) ................................. 22

Barton v. House of Raeford Farms, Inc.,

745 F.3d 95 (4th Cir. 2014) ............................. 23, 24

Bogan v. Gen. Motors Corp.,

500 F.3d 828 (8th Cir. 2007) ................................. 28

Caterpillar, Inc. v. Williams,

482 U.S. 386 (1987)................................................ 33

DeCoe v. Gen. Motors Corp.,

32 F.3d 212 (6th Cir. 1994) ................................... 25

Ertle v. Cont’l Airlines, Inc.,

136 F.3d 690 (10th Cir. 1998) ............................... 26

Fort Hallifax Packing v. Coyne,

482 U.S. 1 (1987) ................................................... 31

Franchise Tax Bd. v. Constr. Laborers

Vacation Trust,

463 U.S. 1 (1983) ................................................... 21

Geddes v. Am. Airlines, Inc.,

321 F.3d 1349 (11th Cir. 2003) ............................. 21

Gore v. Trans World Airlines,

210 F.3d 944 (8th Cir. 2000) ................................. 25

v

Hawaiian Airlines, Inc. v. Norris,

512 U.S. 246 (1994) ........................................ passim

Int’l Bhd. of Elec. Workers,

AFL-CIO v. Hechler,

481 U.S. 851 (1987) ................................................18

Kollar v. United Transp. Union,

83 F.3d 124 (5th Cir. 1996)....................................26

Lingle v. Norge Div. of Magic Chef, Inc.,

486 U.S. 399 (1988) ..........................................11, 14

Livadas v. Bradshaw,

512 U.S. 107 (1994) ........................ 11, 12, 14, 27, 33

McCray v. Marriott Hotel Servs., Inc.,

902 F.3d 1005 (9th Cir. 2018)..........................26, 27

McKnight v. Dresser, Inc.,

676 F.3d 426 (5th Cir. 2012)............................28, 29

Melanson v. United Airlines,

931 F.2d 558 (9th Cir. 1991)..................................32

Metro. Life Ins. Co. v. Massachusetts,

471 U.S. 724 (1985) ................................................31

Missouri Pac. R.R. Co. v. Norwood,

283 U.S. 249 (1931) ................................................32

Moore-Thomas v. Alaska Airlines, Inc.,

553 F.3d 1241 (9th Cir. 2009)................................21

Paul v. Kaiser Found. Health Plan of Ohio,

701 F.3d 514 (6th Cir. 2012)............................27, 28

Penn. Fed’n of the Bhd. of Maint. of Way Emps.

v. Nat’l R.R. Passenger Corp.,

989 F.2d 112 (3d Cir. 1993) ...................................26

vi

Riley v. Kennedy,

553 U.S. 406 (2008)................................................ 18

Roddy v. Grand Trunk W. R. Inc.,

395 F.3d 318 (6th Cir. 2005) ................................. 21

Rueli v. Baystate Health, Inc.,

835 F.3d 53 (1st Cir. 2016) .............................. 24, 25

Ry. Labor Execs. Ass'n v. Pittsburgh &

Lake Erie R.R. Co.,

858 F.2d 936 (3d Cir.1988) .................................... 21

Sprint Commc’ns, Inc. v. Jacobs,

571 U.S. 69 (2013) ................................................. 34

Sullivan v. Am. Airlines, Inc.,

424 F.3d 267 (2d Cir. 2005) ................................... 20

Tifft v. Commonwealth Edison Co.,

366 F.3d 513 (7th Cir. 2004) ........................... 22, 23

United Steelworkers of Am. v. Am. Mfg. Co.,

363 U.S. 564 (1960)................................................ 20

United Steelworkers of Am.,

AFL-CIO-CLC v. Rawson,

482 U.S. 901 (1987)................................................ 18

United Steelworkers of Am.,

AFL-CIO-CLC v. Rawson,

495 U.S. 362 (1990).............................. 16, 17, 18, 34

Vera v. Saks & Co.,

335 F.3d 109 (2d Cir. 2003) ................................... 25

vii

Statutes

1988 Wash. Sess. Laws 1094-96 .................................3

2002 Wash. Sess. Laws 1160-61 .............................3, 4

28 U.S.C. § 2283 ........................................................34

29 U.S.C. § 185(a) .............................................. passim

45 U.S.C. § 151a ................................................ passim

Wash. Rev. Code ch. 34.05 ..........................................6

Wash. Rev. Code § 49.12.270 ............................ passim

Wash. Rev. Code § 49.12.270(1) ..........................13, 15

Wash. Rev. Code § 49.12.280 ......................................5

Wash. Rev. Code § 49.12.285 ......................................5

1

INTRODUCTION

In an effort to manufacture conflict where none

exists, Petitioner Alaska Airlines inaccurately

describes the opinion below and its consequences.

Read accurately, that opinion creates no conflict with

decisions of this Court or any other. And the

consequences the Airline complains of have nothing to

do with the opinion below. Certiorari is unwarranted.

Washington law guarantees all workers the

right to use paid leave they have earned to care for a

sick relative. This law applies to workers whether

they are covered by a collective bargaining agreement

or not.

Alaska Airlines refused to allow one of its

workers to use vacation leave to care for her sick child.

When Washington’s Department of Labor and

Industries fined the Airline for violating Washington

law, the company sued, claiming that the Railway

Labor Act (RLA) preempted the Department’s claim.

The Ninth Circuit carefully applied this Court’s

precedent and rejected Alaska Airlines’ argument.

The Airline asserts that the Ninth Circuit flouted

decisions of this Court and other circuits by holding

that federal courts “lack the authority to consider the

nature” of a state-law claim when deciding whether

the claim is preempted under the RLA. Pet. 2. But the

Ninth Circuit said no such thing. Instead, the Ninth

Circuit found no preemption because the court

concluded that regardless of the meaning of

Washington law, the Department’s claim could be

resolved without interpreting the Airline’s collective

bargaining agreement (CBA) with its employees. Pet.

App. 30a-31a. If the Department’s reading of

2

Washington law is correct, then the Airline violated

state law regardless of the CBA’s meaning. Id. at 31a.

If the Airline’s reading of state law is correct, then

Alaska Airlines complied with state law because the

Airline’s interpretation of the CBA is not disputed. Id.

Either way, no interpretation of the CBA is necessary.

The decision below is thus entirely consistent

with decisions of this Court and other circuits. Those

decisions have found RLA preemption only where a

claim seeks to enforce a CBA or requires

interpretation of a CBA. Neither is the case here.

The decision below also will not lead to the

parade of horribles Alaska Airlines describes. The

Airline laments the difficulty of complying with

different leave requirements and other labor

protections in different states. Pet. 27-28. But that is

a criticism of federal law, not the Ninth Circuit’s

opinion, because this Court has repeatedly held that

the RLA does not preempt states from imposing

different minimum labor standards. The Airline also

claims that the decision will lead to inconsistent

interpretations of CBAs in different states, Pet. 26-27,

but that critique makes no sense when the key point

of the decision below is that no interpretation of the

CBA is required.

In short, the decision below is consistent with

precedent and will have none of the consequences

Alaska Airlines claims. The Court should deny

certiorari.

3

STATEMENT OF THE CASE

A.

The Washington Family Care Act Sets

Minimum Labor Standards

In 1988, the Washington Legislature enacted

the Washington Family Care Act, granting

Washington workers the right to use accrued sick

leave to care for a sick child. 1988 Wash. Sess. Laws

1094-96 (ch. 236, §§ 1-12), BIO App. 6a-10a. This labor

requirement was explicitly termed a “minimum

standard.” Id. at § 1. The right was granted equally to

workers earning sick leave pursuant to a collective

bargaining agreement or an employer policy. Id. For

leave other than sick leave, use of leave to care for a

sick child remained controlled by the terms of a CBA

or employer policy. Id. at § 3. In enacting the law, the

Legislature recognized the difficulties faced by

parents, especially working parents and single

parents, when their children are sick. The Act

balanced the needs of Washington families against

the demands of the workplace, to “promote family

stability and economic security.” Id. at § 1.

In 2002, the Legislature strengthened this

minimum labor standard. 2002 Wash. Sess. Laws

1160-61 (ch. 243, §§ 1-4), BIO App. 11a-13a, codified

at Wash. Rev. Code § 49.12.270 (Pet. App. 140a). The

Legislature expanded the type of leave that an

employer must allow an employee to use to care for a

sick child. Id. at § 1. While the 1988 law applied only

to accrued sick leave, the 2002 amendments applied

to other paid time off (including vacation days) the

employee was “entitled to” under the terms of a CBA

or employer policy. Id. Again, the law applied equally

to workers whether subject to a CBA or not. Id.

4

(applying law to leave an employee is entitled to under

a CBA or employer policy). The Department of Labor

and Industries interprets the statutory term “entitled

to” to include leave that has been earned and is

reflected in an employee’s earned leave bank. Pet.

App. 5a.

To allow employees flexibility in using leave to

care for a sick child, the Act creates a nonnegotiable

standard that employees need not follow any terms in

a CBA or employer policy “relating to choice of leave.”

Id. at § 1. The Department interprets the statutory

phrase “terms relating to choice of leave” to include

advance scheduling requirements for vacation leave.

Pet. App. 5a.

B.

Alaska Airlines Denied a Washington

Mother the Right to Use Her Accrued

Leave to Care for Her Sick Child

Laura Masserant is a Washington resident who

has worked for Alaska Airlines as a flight attendant

since 1991. In May 2011, Ms. Masserant’s child

developed bronchitis, and she asked for time off to

care for him. Because she did not have sufficient sick

leave available, she asked to use two of her seven

remaining days of accrued vacation leave. Pet. App.

3a. In her request, Ms. Masserant specifically referred

to Washington’s Family Care Act.

Alaska Airlines denied the request, citing the

CBA between the Airline and flight attendants. The

CBA required vacation leave to be scheduled in

advance, and Ms. Masserant’s accrued vacation leave

was scheduled to be used in December. Ms. Masserant

took unscheduled leave to care for her child, and was

assessed disciplinary points. Id. at 3a-4a.

5

Under the undisputed terms of the CBA, on

December 31 of each year, flight attendants become

entitled to their entire allotment of leave for the

following year. All leave is placed in a “leave bank,”

which is then depleted as flight attendants use their

vacation days. Leave in a leave bank may be

immediately cashed out, with the scheduled leave

remaining on the calendar but converted to unpaid

time off. Id. Flight attendants are required to

schedule their vacations in advance, and to request

their specific vacation dates by the preceding October.

Once leave is placed in a flight attendant’s leave bank,

the CBA generally requires the employee to use the

leave on the previously scheduled dates. There are,

however, numerous exceptions that allow flight

attendants to use leave at unscheduled times: the

leave may be exchanged with other flight attendants,

used for extended medical leaves of absence, used for

maternity-related leaves of absence, and used to

extend bereavement leave. Id. But the CBA does not

allow flight attendants to use their vacation leave for

sick leave, or to care for a child, unless the illness

happens to fall on the date of the previously scheduled

vacation leave.

C.

The Department Issued a

Infraction to Alaska Airlines

Notice

of

After Alaska Airlines denied her use of vacation

leave to care for her sick child, Ms. Masserant filed a

complaint with the Department. Id. at 4a. The

Department investigates complaints under the

Washington Family Care Act and may issue

infractions if it reasonably believes the employer has

failed to comply with the Act. Wash. Rev. Code

§ 49.12.280, .285. The Department investigated the

6

complaint and determined that state law required

Alaska Airlines to allow Ms. Masserant to use the

vacation leave in her leave bank to care for her sick

child. See BIO App. 1a-2a (Notice of Infraction, May

31, 2012). The Department determined that

Ms. Masserant was entitled to seven days of vacation

leave, “which Alaska Airlines, Inc. did not refute.”

BIO App. 2a. The Department also found that

Ms. Masserant asked to use her vacation leave to care

for a sick child, and was denied. The Department thus

issued a Notice of Infraction that Alaska Airlines had

violated Wash. Rev. Code § 49.12.270, and imposed a

fine of $200.

Pursuant to Washington’s Administrative

Procedures

Act,

Alaska

Airlines

filed

an

administrative appeal with the Department and

requested a hearing. Alaska Airlines and the

Department later stipulated to a dismissal without

prejudice of the administrative appeal because of the

federal lawsuit that is the subject of the petition for

certiorari. Alaska Airlines had amended an existing

lawsuit to include Ms. Masserant’s complaint after

the Department had begun its investigation but

before the issuance of the Notice of Infraction and

subsequent administrative appeal. The stipulation

included that either party could renew their request

for an administrative hearing.

D.

Alaska Airlines Sought an Injunction

Preventing Enforcement of Washington’s

Family Care Act

In its federal lawsuit, the Airline sought to

enjoin the Department from investigating complaints

filed by flight attendants, and specifically to enjoin

7

enforcement of the Act with respect to

Ms. Masserant’s claim. Pet. App. 113a-14a. Alaska

Airlines also sought a declaratory judgment that the

Washington Family Care Act, as applied to Alaska

Airlines, is preempted in its entirety by the Railway

Labor Act (RLA), 45 U.S.C. § 151a. Id. The Airline did

not argue that the Department had misinterpreted a

term in the CBA but instead took issue with whether

Ms. Masserant had “earned” vacation leave and

whether she was “entitled” to use the leave, as those

terms are used in the Washington Family Care Act.

Pet. App. 31a. The district court subsequently allowed

intervention by the Association of Flight AttendantsCommunication Workers of America, AFL-CIO.

On cross motions for summary judgment, the

district court granted summary judgment for the

Department and the Union. Pet. App. 114a-15a. The

court concluded that the state-law claims at issue

were independent of the CBA and thus were not

preempted under the RLA. Id. at 115a.

E.

After a Divided Ninth Circuit Panel

Initially Reversed, an En Banc Panel of

the Ninth Circuit Affirmed the Trial Court

Alaska Airlines appealed to the Ninth Circuit.

In a divided opinion, a panel of the Ninth Circuit

reversed the district court. The Ninth Circuit then

granted en banc review.

In the en banc decision, the Ninth Circuit

affirmed the district court. Pet. App. 1a-38a. Noting

that the RLA contains no express preemption

provision, the majority opinion first established the

history and purpose of the RLA’s preemption doctrine.

The RLA creates a “comprehensive framework for

8

resolving labor disputes.” Pet. App. 8a (quoting

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252,

(1994)). Disputes growing out of grievances or the

interpretation or application of a CBA are known as

“minor disputes” for RLA purposes. Minor disputes

must be addressed through CBA mechanisms—first

through grievance and then arbitration before a

system board of adjustment. Pet. App. 10a, n.6.

Echoing this Court’s precedent, the majority

recognized that the purpose of the RLA related to

fostering industrial self-governance and ensuring

uniformity in resolving CBA disputes. Pet. App. 10a13a. The RLA was never intended to override state

minimum labor standards. Pet. App. 14a. Nor was it

intended to create uniformity with respect to the

various minimum labor standards to which an airline

or railway might be subject. Instead, it was intended

to create uniformity only with respect to CBA

interpretation. Pet. App. 15a.

Consistent with the focus on CBA disputes, the

majority concluded that “RLA preemption does not

apply where the state law claim can be resolved

independently of any CBA dispute.” Pet. App. 5a-6a

(citing Norris, 512 U.S. at 256-58; Lingle v. Norge Div.

of Magic Chef, Inc., 486 U.S. 399, 407 (1988)). The

court also emphasized that the RLA did not preempt

substantive law but rather addressed only the forum

that must decide the dispute. Pet. App. 23a.

Applying these settled principles, the majority

determined that the RLA did not preempt the

Department’s enforcement of a minimum labor

standard in this case. Examining the legal character

of the claim, as this Court has instructed, the majority

9

found that the claim was based on a statutory right

independent of the CBA, and that resolution of the

claim did not require interpretation of the CBA.

Although it acknowledged that Alaska Airlines

disputed the Department’s interpretation of state law,

it identified that dispute as one over the meaning of

state law, not the meaning of the CBA. The court also

noted that whether or not the Department is

ultimately vindicated on its view of state law, the

claim would be resolved solely on those state-law

grounds and would not involve interpretation of a

CBA term. Pet. App. 30a.

Finding that the case could be resolved entirely

on state-law grounds without any risk of interpreting

the CBA, the court found no need to go further: “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.” Pet.

App. 8a.

By contrast, the dissenting judges would have

decided the merits of the state-law dispute, even

though the claim brought by the Department

indisputably did not involve interpretation of any

CBA term. The dissent took this approach because

Alaska Airlines asserted that under its interpretation

of the statute, resort to the CBA would be necessary.

The dissent understood preemption analysis to

require a resolution of any state-law disputes in order

to determine if rejection of the state-law claim might

then lead to reliance on a CBA. In a case such as this

one, where the CBA terms were not disputed and the

case rises and falls solely on which interpretation of

state law should be applied, the dissent would

10

essentially decide the case in order to determine

which forum should decide the case. See Pet. App. 33a.

REASONS FOR DENYING THE PETITION

A.

The Decision Below Is in Lockstep with

this Court’s Decisions

The en banc decision is firmly grounded in two

bedrock principles announced by this Court that

govern RLA preemption. First, the RLA requires

arbitration only when state-law claims require the

interpretation of CBA terms or seek to enforce those

terms, neither of which is the case here. Norris, 512

U.S. at 256. Second, the RLA does not preempt state

law claims to enforce rights independent of a CBA,

such as minimum labor standards like those at issue

here. Id. As the en banc court recognized, this case

involves application of a minimum labor standard and

requires no interpretation of CBA terms. The decision

below is thus entirely consistent with this Court’s

jurisprudence.

1.

This Court has consistently held

that the RLA does not preempt state

labor standards, it simply requires

arbitration of disputes that require

enforcement or interpretation of

the CBA

This Court has long held that the RLA does not

preempt state labor standards, but rather merely

demands arbitration of certain disputes to ensure

consistent interpretation of collective bargaining

agreements. E.g., Norris, 512 U.S. at 252, 255-56. The

Court has repeatedly held the same as to § 301 of the

11

Labor Management Relations Act (LMRA).1 Livadas

v. Bradshaw, 512 U.S. 107, 122-23 (1994); AllisChambers Corp. v. Lueck, 471 U.S. 202, 212 (1985).

Accordingly, the Court applies RLA preemption only

when a state-law claim is “inextricably intertwined”

with the terms of a CBA or where a CBA must be

interpreted to resolve the claim. E.g., Lueck, 471 U.S.

at 213; Lingle, 486 U.S. at 409. Disputes requiring

arbitration are those involving “the interpretation or

application of existing labor agreements.” Norris, 512

U.S. at 256. The Court looks to the “legal character of

a claim” to determine if it is independent of a right

under a CBA. Livadas, 512 U.S. at 123.

The Court has developed several rules to

ensure that RLA preemption extends only far enough

to protect the role of arbitration in CBA enforcement

and interpretation. For example, “the bare fact that a

collective-bargaining agreement will be consulted in

the course of state-law litigation plainly does not

require the claim to be extinguished.” Livadas, 512

U.S. at 124 (citing Lingle, 486 U.S. at 413 n.12).

Similarly, state minimum labor standards remain

“independent” of a CBA right—and are not

preempted—even if they relate to a benefit set forth

in the CBA. Id.

In Livadas, for example, the question was

whether RLA preemption applied to a state law

requiring payment of wages immediately upon

discharge, where the amount of wages at issue was

defined in the CBA and therefore the CBA would need

1 In Norris, this Court held that the analysis for

preemption under LMRA § 301 applied to RLA preemption. 512

U.S. at 263.

12

to be referenced to calculate damages. Id. at 123-24.

The Court noted that the amount of wages due under

the CBA was not in dispute, and the only question was

whether the employer had complied with the state law

requiring payment of wages immediately upon

discharge. Id. at 124-25. Under those circumstances,

the Court held there was not “even a colorable

argument” that the claim was preempted. Id. at 124.

Here, the opinion closely followed this Court’s

precedent in concluding that the state-law claim was

not preempted. Contrary to Alaska Airlines’ claim, the

en banc court carefully examined the nature and scope

of the state-law claim to determine if it required

interpretation of the CBA. Pet. App. 29a-30a. In doing

so, the court did not simply accept an assertion in a

pleading that no interpretation of the CBA was

involved. Instead, the court looked at “the legal

character of a claim,” as this Court has instructed. See

Livadas, 512 U.S. at 123 (emphasis added); Pet. App.

29a-30a. The claim in this case is that the Washington

Family Care Act provides an independent state right

for Ms. Masserant to use her banked vacation days to

care for her sick child. As noted by the majority, this

claim invokes a state-law right applicable to all

workers, and does not rely on interpretation of a CBA.

Pet. App. 29a. The fact that Alaska Airlines disputes

the interpretation of state law in the claim does not

raise any issue under the RLA. Instead, the claim

“gives rise to a state law dispute, not a dispute

concerning the meaning of the CBA.” Pet. App. 29a.

The Ninth Circuit also relied on its conclusion

that regardless of whether a state court ultimately

agrees with the Department’s interpretation of

Washington law, no interpretation of the CBA was

13

required. Id. at 30a-31a. The Washington Family

Care Act requires an employer to allow an employee

to use leave to care for a sick child “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.” Wash.

Rev. Code § 49.12.270(1). The Department interprets

the statutory term “entitled to” to include vacation

leave that has been earned and placed in an

employee’s leave bank, regardless of whether the

vacation leave has been scheduled for a certain date.

Pet. App. 5a. On the other hand, Alaska Airlines

interprets the statutory term “entitled to” to mean

that the employee must be entitled, under the terms

of the CBA or employer policy, to use the vacation

leave on the particular day that their child is sick. Pet.

9.

In its petition, Alaska Airlines does not dispute

that under the Department’s interpretation, there

would be no need to interpret the CBA. Pet. 10, 15.

But even under Alaska Airlines’ interpretation of the

statute, there would be no need to interpret the CBA.

That is because the Department does not dispute that

the CBA does not allow flight attendants to reschedule their vacation leave to care for a sick child.

Pet. App. 5a, 30a. Thus, if a state court agreed with

the Airline’s statutory interpretation, the Notice of

Infraction would simply be dismissed, without any

need to interpret the CBA.

Alaska Airlines and the dissenting opinion

below attempt to create a dispute over CBA terms

where none exists. E.g., Pet. 8-9; Pet. App. 56a-57a.

The Department does not assert and has never

asserted that Alaska Airlines violated state law

14

because the CBA allowed Ms. Masserant to use her

banked vacation leave at a non-scheduled time to care

for her sick child. Instead, the Department asserts

that state law requires that Ms. Masserant be allowed

to use her banked vacation leave to care for her sick

child, even if the CBA says otherwise.

Because the only dispute in the case involves

whether undisputed facts establish a violation of state

law, there is no need for CBA interpretation to resolve

the claim and therefore no RLA preemption. See

Norris, 512 U.S. at 262-63 (reviewing precedent

describing preemption of claims that depend on the

interpretation of a CBA); Lingle, 486 U.S. at 407

(stating that state-law claim was independent for

LMRA preemption purposes because resolution of the

state-law claim did not require construing the CBA).

The Ninth Circuit’s opinion is also firmly rooted

in this Court’s recognition that preemption of

employment standards within the traditional police

power of the State “should not be lightly inferred.”

Norris, 512 U.S. at 252. In light of RLA preemption’s

limited focus on protecting the role of arbitration in

interpreting a CBA, this Court has repeatedly made

clear that claims based on nonnegotiable state rights

are not preempted unless they require interpretation

of CBA terms. See, e.g., Norris, 512 U.S. at 252, 256;

Livadas, 512 U.S. at 123; Lueck, 471 U.S. at 213;

Lingle, 486 U.S. at 411-12. For example, the Court

held that the LMRA did not preempt a claim alleging

wrongful discharge in retaliation for filing a workers

compensation claim, even though the CBA also

prohibited firing without just cause. Lingle, 486 U.S.

at 401. Although the state-law claim and a grievance

under the CBA might involve similar facts, the Court

15

concluded, “the state-law remedy in this case is

‘independent’ of the collective-bargaining agreement

in the sense of ‘independent’ that matters for § 301

pre-emption purposes: resolution of the state-law

claim does not require construing the collectivebargaining agreement.” Id. at 407.

Similarly, the Court held that the RLA did not

preempt a claim of wrongful discharge in retaliation

for reporting safety violations, even though the CBA

offered an alternative avenue for relief. Norris, 512

U.S. at 258. The Court reasoned that the CBA was not

the only source of the claimed prohibition against

wrongful discharge. “Wholly apart from any provision

of the CBA, petitioners had a state-law obligation not

to fire respondent in violation of public policy or in

retaliation for whistle-blowing.” Id.

As in Norris, the Washington Family Care Act

creates a nonnegotiable, minimum labor standard. It

establishes rights independent of any labor

agreement and extends equally to workers covered by

a CBA and workers not covered by a CBA. Pet. App.

29a; Wash. Rev. Code § 49.12.270(1). As a result, the

Department’s claim—that Ms. Masserant was

entitled to use her banked vacation leave to care for a

sick child notwithstanding contrary provisions in the

CBA—relies solely on application of the state law and

does not require construction of the CBA. The

independence of the state law claim is further

illustrated by Alaska Airlines’ defense, which disputes

the State’s reading of the Act, but not the meaning of

any provision of the CBA.

In holding that the state-law right is

“independent” of the CBA because it does not involve

16

interpretation of the CBA, the Ninth Circuit faithfully

applied this Court’s precedent.

2.

There is no conflict with decisions of

this Court

Contrary to Alaska Airlines’ claim, the opinion

is also fully consistent with Lueck, 471 U.S. 202, and

United Steelworkers of America, AFL-CIO-CLC v.

Rawson, 495 U.S. 362 (1990). Pet. 22-25.

Alaska Airlines claims that Lueck is an

example of this Court resolving a dispute about the

meaning of state law in the course of assessing LMRA

preemption. Pet. 25-26. But the opinion refutes that

contention.

In Lueck, the plaintiff claimed that an insurer

acted in bad faith in processing an insurance claim

under an insurance policy created pursuant to a CBA.

The Wisconsin Supreme Court held that this claim

was not preempted by the LMRA. This Court

reversed, but it emphasized that it was not

questioning the Wisconsin court’s interpretation of

state law. The Court explained that “the nature of the

state tort is a matter of state law,” Lueck, 471 U.S. at

213-14, and a state court’s interpretation of state law

is “unassailable,” id. at 214. Rather, the relevant

question for the federal court to decide was “whether

the Wisconsin tort is sufficiently independent of

federal contract interpretation to avoid pre-emption.”

Id. at 214. That was the question the Court proceeded

to consider, and it found that the Wisconsin Supreme

Court had erred not because it got state law wrong,

but because its conclusions depended not solely on

state law, but “on assumptions about the scope of the

contract provision which it had no authority to make

17

under state law.” Id. Put another way, Lueck “held

that resolution of a state-law tort claim must be

treated as a claim arising under federal labor law

when it is substantially dependent on construction of

the terms of a collective-bargaining agreement.”

Rawson, 495 U.S. at 366.

Lueck is thus entirely consistent with the

opinion below. The Ninth Circuit carefully considered

the appropriate federal question: whether the

Department’s claim that Alaska Airlines violated the

Washington Family Care Act was “sufficiently

independent of federal contract interpretation to

avoid pre-emption.” Lueck, 471 U.S. at 214. That is

what the bulk of the opinion addresses. Pet App. 8a32a. And the Ninth Circuit properly concluded that

the Department’s Washington Family Care Act claim

was not “substantially dependent on construction of

the terms of a collective-bargaining agreement.”

Rawson, 495 U.S. at 366; Pet. App. 30a.

Rawson likewise creates no conflict with the

opinion below. Rawson had a complicated procedural

history that informed the outcome of the case. The

plaintiffs’ complaint and discovery responses made

crystal clear that their legal theory relied on an

alleged violation of the CBA. 495 U.S. at 370 (“The

only possible interpretation of these pleadings . . . is

that the duty on which respondents relied as the basis

of their tort suit was one allegedly assumed by the

Union in the collective-bargaining agreement.”). And

in initially allowing the lawsuit to go forward, that is

how the Idaho Supreme Court understood the claim.

Id. But after this Court granted, vacated, and

remanded that opinion in light of its decision in

International Brotherhood of Electrical Workers, AFL-

18

CIO v. Hechler, 481 U.S. 851 (1987),2 the Idaho

Supreme Court significantly changed its description

of plaintiffs’ claim. Rawson, 495 U.S. at 370.

Confusingly, while the Idaho Supreme Court

purported to adhere to its prior opinion as written, it

also this time described plaintiffs’ claim as being

entirely independent of the CBA. Id. This Court

reversed.

The Court did not reject the Idaho court’s

interpretation of Idaho law; under well-settled

principles, it could not have done so. E.g., Riley v.

Kennedy, 553 U.S. 406, 425 (2008). Rather, this Court

addressed the same federal question it addressed in

Lueck: whether the plaintiffs’ state-law claims were

sufficiently “independent of the collective-bargaining

agreement” to avoid preemption. Rawson, 495 U.S. at

371; cf. Lueck, 471 U.S. at 214 (asking whether state

law claims were “sufficiently independent of federal

contract interpretation to avoid pre-emption”). It was

in making that federal assessment that this Court

disagreed with the Idaho Supreme Court.

Alaska Airlines asserts the Ninth Circuit would

have come to a different result than in Rawson,

stating that the plaintiffs there “pleaded a theory of

state law that would have permitted recovery without

reference to the CBA.” Pet. 25. But Rawson rejected

exactly that argument, holding that “the duty on

which respondents relied as the basis of their tort suit

was one allegedly assumed by the Union in the

collective-bargaining agreement.” Rawson, 495 U.S.

at 370. Far from conflicting with the opinion below,

2 See United Steelworkers of Am., AFL-CIO-CLC v.

Rawson, 482 U.S. 901 (1987).

19

Rawson thus does not even address the question

Alaska Airlines presents.

B.

The Opinion Below Creates No Conflict

Among the Circuits

The court of appeals decision does not conflict

with any decision of any other court of appeals. There

is no need for this Court’s review.

1.

Alaska

Airlines

inaccurately

characterizes the opinion below in

claiming a conflict

In asserting a conflict with decisions of other

circuits, Alaska Airlines contends that the opinion

below announces a “new rule” that preemption must

be denied “whenever a plaintiff pleads any theory of

state law” that does not require CBA interpretation.

Pet. 15. But the Ninth Circuit announced no such

across-the-board rule. Rather, it concluded that no

interpretation of a CBA would be required in this case

regardless of which party was right about the

meaning of Washington law. Pet. App. 30a-31a.

Alaska had conceded this point earlier in the case,

acknowledging that there was no dispute about the

meaning of the CBA, but rather solely about the

meaning of state law. Pet. App. 7a. As a result, this

case will end with a ruling on the meaning of the state

statute alone, with no need to interpret the CBA. The

Ninth Circuit simply recognized that when there is no

need for interpretation of the CBA regardless of the

meaning of state law, the RLA does not preempt the

state-law claim.

In arguing that the opinion below announces a

broad new rule, Alaska repeatedly asserts that the

20

court held that it lacked “jurisdiction” or “authority”

to examine state law in its preemption analysis. Pet.

12 (citing Pet. App. 22a, 32a-33a), 21, 24, 26. Not so.

The jurisdiction the majority opinion occasionally

refers to, see, e.g., Pet. App. 23a, 33a, is the

jurisdiction to adjudicate the underlying claim, not

the decision on whether the claim is preempted. See

Pet. App. 33a. And the lack of jurisdiction to

adjudicate the underlying claim in a case involving

RLA preemption is unquestionably correct. Either the

state-law claim is not preempted and remains in state

court, or the claim is preempted and is decided by the

RLA arbitral mechanism. E.g., Norris, 512 U.S. at

248; cf. United Steelworkers of Am. v. Am. Mfg. Co.,

363 U.S. 564, 569 (1960) (stating that court

improperly usurps function of arbitration where it

“undertakes to determine the merits of a grievance

under the guises of interpreting the grievance

procedure of collective bargaining agreements”).

Importantly, this jurisdictional point is one

area of difference between RLA preemption and

LMRA preemption, a difference that the Airline

ignores. While preemption analysis under the two

statutes is generally the same, see Norris, 512 U.S. at

263, one crucial difference is that this Court has held

that the LMRA creates “complete preemption” of state

law claims that fall under the LMRA’s purview.

Conversely, this Court has never held that the RLA

creates complete preemption and most of the circuits

that have examined this issue have held that it does

not.3 Thus, where a state-law claim is preempted by

3 See, e.g., Sullivan v. Am. Airlines, Inc., 424 F.3d 267,

277 (2d Cir. 2005) (finding no complete preemption under the

RLA); Ry. Labor Execs. Ass’n v. Pittsburgh & Lake Erie R.R. Co.,

21

the LMRA, it is essentially converted to a federal-law

claim, and federal courts have jurisdiction to decide it.

See, e.g., Franchise Tax Bd. v. Constr. Laborers

Vacation Trust, 463 U.S. 1, 23 (1983) (“[T]he

preemptive force of [LMRA] § 301 is so powerful as to

displace entirely any state cause of action for violation

of contracts between an employer and a labor

organization. Any such suit is purely a creature of

federal law.” (Internal quotation marks omitted)); Pet.

App. 21a-22a n.15 (explaining this distinction). By

contrast, a finding of RLA preemption does not mean

that a federal court can then decide the underlying

merits of the claim; rather, it simply means that the

claim must be decided in arbitration. Norris, 512 U.S.

at 253. This difference in the impact of a finding of

preemption becomes important in understanding

some of the cases that the Airline claims conflict with

the opinion below.

2.

The courts of appeals have found

RLA preemption only when interpretation of a CBA is required

There is no support in any circuit for the

Airline’s contention that state claims should be

preempted when the sole issue is interpretation of

state law. In each case cited by Alaska Airlines, the

state-law claim was preempted because resolution of

the dispute required CBA interpretation, which is not

the case here.

858 F.2d 936, 942-43 (3d Cir. 1988) (same); Roddy v. Grand

Trunk W. R. Inc., 395 F.3d 318, 326 (6th Cir. 2005) (same);

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

Cir. 2009) (same); Geddes v. Am. Airlines, Inc., 321 F.3d 1349,

1357 (11th Cir. 2003) (same).

22

For example, in Tifft v. Commonwealth Edison

Co., 366 F.3d 513 (7th Cir. 2004), the question was

whether LMRA § 301 completely preempted the

plaintiffs’ wrongful termination claim, such that the

claim was really a claim under federal law and could

be removed to federal court. After examining Illinois

law, the Seventh Circuit concluded that the only way

to determine whether state law had been violated

would be by interpreting provisions of a CBA between

the plaintiffs and the defendant. Id. at 519 (“[T]he

state-law cause of action is meaningless without

reference to the agreements which articulate the

Defendants’ obligations toward these Plaintiffs.”). The

court’s holding rested on its determination that the

analysis required “more than mere reference to the

collectively bargained agreements.” Id. at 520. The

court explained that if the Illinois statute had

established an independent statutory right, there

would have been “no need to interpret the CBA or any

other agreements, [the] state law claim would be

independent of the CBA, and [the] claims would not

have been preempted.” Id. at 519; see also Baker v.

Kingsley, 387 F.3d 649, 657 (7th Cir. 2004) (holding

that “[i]f a state-law claim requires reference to, but

not interpretation of, a collective bargaining

agreement, the claim is not preempted.”) (citing In re

Bentz Metal Prods. Co., Inc., 253 F.3d 283, 285 (7th

Cir. 2001)).

Contrary to the Airline’s contention, nothing in

Tifft conflicts with the opinion below. Alaska Airlines

claims that under the Ninth Circuit’s rule, Tifft would

have come out differently because the plaintiffs

alleged that the defendant’s conduct violated state

law without reference to any CBA. Pet. 16. But in this

23

case, the Ninth Circuit relied not simply on the

Department’s allegations, but on its own assessment

that no interpretation of the CBA would be necessary

regardless of the meaning of state law. Pet. App. 30a31a. Moreover, Tifft involved LMRA preemption, so

the court had to determine the rights granted by state

law to understand whether they were completely

preempted by federal law and thus whether federal

jurisdiction existed. Tifft, 366 F.3d at 516. Here, by

contrast, once the court concluded that no CBA

interpretation would be required regardless of the

meaning of state law, there was no need for the court

to go further in deciding the proper interpretation of

Washington law.

The decision below is also consistent with the

Fourth Circuit’s decision in Barton v. House of

Raeford Farms, Inc., 745 F.3d 95 (4th Cir. 2014). Like

Tifft, Barton involved a defendant’s claim that LMRA

§ 301 completely preempted the plaintiffs’ claims. The

plaintiffs in Barton were employees of a chicken

processor who alleged that their work hours should

have been measured by the time they were “on the

clock,” not their time on the production line. Barton,

745 F.3d at 99, 101. The Fourth Circuit concluded that

this dispute could not be resolved without interpreting

the parties’ collective bargaining agreement, so the

plaintiffs’ claim was completely preempted. Id. at

106-07. The court explained that if the meaning of the

CBA were not in dispute, there would have been no

cause for preemption. Id. at 107 (citing Livadas, 512

U.S. at 123).

Here again, nothing in Barton conflicts with the

decision below. The Ninth Circuit properly concluded

that no interpretation of the CBA would be necessary

24

regardless of the meaning of state law. Pet. App. 30a31a. And unlike Barton, this case involved RLA

preemption, so the court did not need to interpret

state law to decide whether complete preemption

applied and converted the claim into one under

federal law.

The Airline’s reliance on Rueli v. Baystate

Health, Inc., 835 F.3d 53 (1st Cir. 2016), is similarly

misplaced. Rueli was another case involving LMRA

§ 301, this time involving a claim brought by a class of

nurses seeking payment of wages and overtime. The

First Circuit’s analysis focused on “whether there is a

plausible argument, as defendants contend, that

adjudicating plaintiffs’ claims will require the

resolution of a genuine interpretive dispute about one

or more provisions of the CBA.” Id. at 55. The state

law at issue required payment of wages for hours the

employer “suffers or permits” to be done. Id. at 62. The

court held that if the plaintiffs were able to prove that

the employer knew about unpaid hours they were

working, they could establish that the employer

suffered or permitted them to work the hours without

needing to interpret the CBA, and the claim would not

be preempted. Id. But the plaintiffs’ proof was

incomplete, and they were forced to rely on

interpretation of multiple intersecting provisions of

the CBA to show that the employer had constructive

knowledge of the hours worked. Id. Because the claim

could not be resolved without interpretation of

disputed provisions in the CBA, the court concluded

that preemption was required. Id. at 63-64.

Alaska claims that the decision below conflicts

with Rueli because the First Circuit has adopted a

rule that claims are preempted if resolution of the

25

claim “arguably hinges upon an interpretation of the

collective bargaining agreement.” Pet. 18 (quoting

Rueli, 835 F.3d at 58). But applying that test here, the

result would be exactly the same. The Ninth Circuit

concluded that no interpretation of the CBA would

even arguably be necessary here because there was no

relevant dispute about the CBA’s meaning and

interpretation of the CBA would be unnecessary

regardless of the meaning of state law. Pet. App.

30a-31a. Regardless of whether a court ultimately

agrees with the State’s or the Airline’s reading of the

Washington Family Care Act, the case will end with

the ruling on the meaning of state law. There is simply

no contractual dispute at issue, under any reading of

state law.

All of the other cases cited by the Airline also

follow the well-settled rule established by this Court

and applied by the Ninth Circuit: preemption is

appropriate only if resolution of the dispute requires

interpretation of a CBA. See Gore v. Trans World

Airlines, 210 F.3d 944, 952 (8th Cir. 2000) (applying

preemption where the alleged duty and wrongful

action “cannot” be established without “interpretation

of the relevant rights and duties bargained for in the

[CBA]”); DeCoe v. Gen. Motors Corp., 32 F.3d 212, 216

(6th Cir. 1994) (recognizing that if a right is “borne of

state law and does not invoke contract interpretation,

then there is no preemption”); Vera v. Saks & Co., 335

F.3d 109, 115-16 (2d Cir. 2003) (finding preemption is

appropriate where “plaintiff ’s challenge to the

lawfulness of a term of the CBA” and challenge to a

common law rule the parties had “agreed to alter”

requires “substantial interpretation of the CBA”);

Penn. Fed’n of the Bhd. of Maint. of Way Emps. v. Nat’l

26

R.R. Passenger Corp., 989 F.2d 112 (3d Cir. 1993)

(cautioning that the RLA is not intended to preempt

state police power to enforce labor laws and requiring

preemption only after finding it impossible to resolve

dispute without CBA interpretation); Kollar v. United

Transp. Union, 83 F.3d 124, 126 (5th Cir. 1996) (citing

Melanson v. United Airlines, Inc., 931 F.2d 558, 56263 (9th Cir. 1991)) (concluding that common-law fraud

claim was preempted because the seniority dispute

was “controlled by the CBA and modifying

agreements” and “clearly require[d] . . . interpretation

of the CBA”); Ertle v. Cont’l Airlines, Inc., 136 F.3d

690, 694 (10th Cir. 1998) (holding contract claim was

preempted because it was “inextricably intertwined”

with CBA and court could not see how claims could be

resolved “without interpreting and applying the

CBA”).

Alaska Airlines argues that the Ninth Circuit

recently departed from this well-settled case law in

McCray v. Marriott Hotel Servs., Inc., 902 F.3d 1005

(9th Cir. 2018). Pet. 29-30. It did not. McCray

contended that his employer violated a city

ordinance’s minimum wage requirement. The

ordinance allowed a CBA to waive the minimum wage

“to the extent required by federal law.” McCray, 902

F.3d at 1012. As in the present case, there was no

dispute about the meaning of the CBA. Id. at 1013.

The court held that the case was not preempted

because it only required the court to answer a

question of statutory interpretation: whether the

ordinance was waivable. Id. at 1012. The court

explained that if it determined that “[the ordinance]

can’t be waived, then it’s irrelevant whether the CBA

contains a waiver.” Id. at 1013. On the other hand, if

27

the court determined that the ordinance allowed a

waiver, the court would need to do no more than refer

to the CBA to see whether it waived the minimum

wage. Id. Checking to see whether the waiver was

contained in the CBA would require no more analysis

of the CBA than this Court engaged in when it

checked the agreement discussed in Livadas to

determine the employee’s pay rate. Id. at 1013 (citing

Livadas, 512 U.S. at 124-25). In short, McCray simply

applied the well-settled rule that preemption is

appropriate only when CBA interpretation is

required.

Alaska Airlines’ contention that a state-law

claim may be preempted when there is no need to

interpret a CBA finds no support in any court.

3.

No circuit has preempted a statelaw claim based on minimum state

labor standards that did not require

interpretation of a disputed CBA

provision

Like this Court, the courts of appeals have

uniformly declined to find state-law claims preempted

when they could be resolved solely by interpretation

of state law, without analysis of a CBA. The courts of

appeals have applied this principle, just as the Ninth

Circuit did here, for very good reasons.

For one thing, as the Sixth Circuit has

recognized, the purpose of RLA preemption is to avoid

inconsistent interpretations of a CBA by the states.

Paul v. Kaiser Found. Health Plan of Ohio, 701 F.3d

514, 521-22 (6th Cir. 2012) (citing Lingle, 486 U.S. at

404). This risk is present only if the state-law claim

cannot be resolved without interpreting a disputed

28

CBA provision. An employer’s assertion that claims

are “tangentially related” to a CBA is not sufficient to

justify preemption of a state-law claim. Rather, the

essence of the claim must be “inextricably

intertwined” with CBA interpretation. Id. at 521-24;

see also Bogan v. Gen. Motors Corp., 500 F.3d 828, 833

(8th Cir. 2007) (citing Meyer v. Schnucks Mkts., Inc.,

163 F.3d 1048, 1051 (8th Cir. 1998)).

The Paul case illustrates this principle. There,

an employee brought a state-law claim alleging

disability discrimination. The defendant employer

contended that the state-disability claim and request

for accommodation would implicate “scheduling

changes, changes that would implicate other

employees’ schedules and seniority rights under the

CBA.” Paul, 701 F.3d at 522. But the CBA provisions

were not in dispute: the employee did not contest the

employer’s reading of the contract. Id. at 523. Because

resolution of the state-law dispute was not

inextricably entwined with interpretation of the

contract terms, the claim was not preempted. Id.

The Ninth Circuit opinion here is closely

analogous. While there are CBA provisions

addressing leave, the undisputed terms have no

impact on resolution of the state-law dispute. As a

result, there was no basis for finding preemption.

Another crucial point recognized by the

circuits, which follows from this Court’s opinions, is

that it would be inconsistent with congressional intent

to preempt state-law claims that are independent of

contractual rights. McKnight v. Dresser, Inc., 676 F.3d

426, 430-31 (5th Cir. 2012) (quoting Lueck, 471 U.S.

at 212-13). In McKnight, a group of employees filed

29

suit alleging that their employer’s failure to mitigate

employee exposure to loud noise in a Louisiana

industrial facility caused the employees to suffer

hearing loss. Id. at 428. The court found that the

workplace safety claims were “based on precisely the

type of independent, non-negotiable state law rights

and obligations which the Supreme Court excepted

from § 301 preemption.” Id. at 432. The court noted

that if a claim could be preempted when

interpretation of the CBA is not required, employers

would be allowed “to remove all state workplace safety

claims to federal court as long as the governing CBA

made reference with some specificity to workplace

safety.” Id. at 434. The relief sought by Alaska

Airlines would have precisely that effect. It would

enable employers to negate the State’s ability to

enforce independent wage and safety requirements by

including mention of such topics in collective

bargaining agreements, even if resolution of the statelaw claim does not require interpretation of contested

CBA provisions. Such a broad-scale deprivation of

state police power would grossly exceed congressional

intent.

In sum, like the Ninth Circuit, the courts of

appeals have consistently followed this Court’s

decisions and declined to find preemption unless the

state-law dispute requires interpretation of a CBA.

Alaska shows no conflict between the decision below

and any circuit.

30

C.

The Ninth Circuit Opinion Creates No

Risk of Circumvention or Inconsistent

Interpretation of CBAs

Alaska Airlines and its amici claim that a

variety of troubling consequences will follow from the

Ninth Circuit’s opinion. Their concerns are

unfounded.

First, Alaska Airlines and amici contend that

the “possibility of inconsistent application” of a CBA

presents a concern for labor relations. Pet. 27; see also

Br. of Airlines for Am. 13-19; Br. of Ass’n of Am. R.R.s

and Chamber of Commerce 6. But the opinion below

creates no such possibility. Regardless of whether the

case is brought in state or federal court, once the court

determines that resolution of the dispute requires

interpretation of a CBA, the court must dismiss the

claim as preempted by the RLA. See Norris, 512 U.S.

246. The Ninth Circuit opinion cannot reasonably be

read to hold otherwise. See Pet. App. 28-29a. When,

as here, the only dispute before the court is how to

interpret state law—and no party raises a claim or

defense requiring CBA interpretation—there is no

risk of contract interpretation. As a result, there is no

possibility of inconsistent application of a CBA by the

courts.

In arguing that the decision below

“fundamentally undercuts the value of a nationwide

CBA,” Alaska Airlines confuses uniformity in CBA

interpretation—which is in no danger under the

Ninth Circuit’s analysis—with abiding by different

states’ independent labor standards, which the

Airline already must do. In essence, the Airline is

railing against the inconvenience and expense of

31

being subject to different labor laws in each state. Pet.

27. But this Court has repeatedly rejected the notion

that allowing the states to enact substantive labor

standards undercuts collective bargaining. Fort

Hallifax Packing v. Coyne, 482 U.S. 1, 20 (1987);

Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724,

748 (1985).

Alaska Airlines’ and amici’s desire for national

uniformity would require overturning nearly a

century of case law holding that the RLA does not

preempt state enactment or enforcement of state labor

laws that do not depend on interpretation of a CBA.

For nearly 80 years, this Court has recognized the

states’ authority to impose minimum labor standards

on national corporations, despite any inconvenience to

employers:

“State laws have long regulated a great

variety of conditions in transportation and

industry, such as sanitary facilities and

conditions, safety devices and protection,

purity of water supply, fire protection, and

innumerable others. Any of these matters

might, we suppose, be the subject of a

demand by work[ers] for better protection

and upon refusal might be the subject of a

labor dispute which would have such effect

on interstate commerce that federal

agencies might be invoked to deal with

some phase of it. . . . But it cannot be said

that the minimum requirements laid

down by state authority are all set aside.

We hold that the enactment by Congress

of the [RLA] was not a preemption of the

32

field of regulating working conditions

themselves . . . .”

Norris, 512 U.S. at 256-57 (quoting Terminal R.R.

Ass’n of St. Louis v. Trainmen, 318 U.S. 1, 6-7 (1943));

see also Missouri Pac. R.R. Co. v. Norwood, 283 U.S.

249, 258 (1931) (rejecting the railroad’s argument that

the RLA preempted an Arkansas statute regulating

the number of workers required to operate freight

equipment). Alaska Airlines’ petition asserts no basis

for overturning this Court’s longstanding recognition

of the states’ police power.

Finally, contrary to Alaska Airlines’ assertions,

the Ninth Circuit opinion will not allow Plaintiff to

avoid mandatory arbitration by raising a “tenuous”

threshold question of state law. Pet. 26. The Ninth

Circuit properly barred the door on artful pleadings

by holding that when a state law claim “is, in effect, a

CBA dispute in state law garb, [it] is preempted.” Pet.

App. 17a (citing Livadas, 512 U.S. at 122-23); see, e.g.,

Melanson v. United Airlines, 931 F.2d 558, 561 n.1

(9th Cir. 1991) (recognizing that “[t]he RLA’s

grievance procedure would become obsolete if it could

be circumscribed by artful pleading”). As a result, the

decision provides no support to litigants seeking to

avoid arbitration of what are really CBA claims. If

there is a dispute regarding a CBA term, the decision

below recognizes that the dispute must be sent to

arbitration. Pet. App. 10a. The Ninth Circuit simply

held the non-controversial view that “[t]o 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.” Pet. App. 29a.

33

D.

The Rare Circumstances of this Case

Make It a Bad Vehicle for Addressing RLA

Preemption

This case arises in an unusual context that

makes it a poor vehicle for addressing RLA

preemption issues. Ordinarily, RLA and LMRA

preemption claims arise via an employer’s defensive

use of preemption, where an employer seeks to

dismiss or remove to federal court a claim allegedly

preempted. Pet. App. 23a-24a n.17; see, e.g.,

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).

Here, however, Alaska Airlines seeks to use RLA

preemption offensively to secure an injunction against

enforcement of a state statute in an ongoing state

labor law enforcement proceeding and to prevent

similar future application of the state police power.

Pet. App. 113-14a. Id. Alaska Airlines cites no

opinions addressing similar circumstances.

There are two reasons why the rare

circumstances of this case make it a poor vehicle for

addressing RLA preemption analysis.

First, many of the concerns animating this

Court’s discussion of RLA preemption are not

presented here. “Congress’ purpose in passing the

RLA was to promote stability in labor-management

relations . . . .” Norris, 512 U.S. at 252. In light of this

purpose, the Court has rejected so called “artful

pleading” efforts by employees “to renege on their

arbitration promises by ‘relabeling’ as tort suits

actions simply alleging breaches of duties assumed in

collective-bargaining agreements.” Livadas, 512 U.S.

at 123 (quoting Lueck, 471 U.S. at 219).

34

Here, the risk of employee incentive to evade

contractual obligations by engaging in “artful

pleading” is absent. Unlike Lueck and Rawson, this

case does not involve employees suing their union or

employer based on duties arising under a CBA.

Instead, this case involves an employer seeking to

enjoin state authority to enforce minimum labor

standards. In fact, there is no pleading here at all—

the only administrative action to date is that the

Department issued an infraction. As a result, a

decision in this case would be unhelpful in the vast

majority of cases involving RLA preemption analysis.

Second, there are significant problems with the

scope of the remedy sought by Alaska Airlines. The

Airline seeks an injunction preventing the State from

pursuing its current state administrative enforcement

action and preventing the State from any future

enforcement of Washington’s Family Care Act against

Alaska Airlines. Due to comity concerns, this Court

and Congress have been reluctant to interfere with

such proceedings even on a case-by-case basis, much

less in the across-the-board manner Alaska seeks

here. See Sprint Commc’ns, Inc. v. Jacobs, 571 U.S.

69, 77 (2013) (explaining circumstances in which a

federal court should decline to enjoin an ongoing state

proceeding); 28 U.S.C. § 2283 (federal court may not

enjoin proceedings in a state court except under

limited circumstances). Such an injunction would

make particularly little sense here, because, as the

Ninth Circuit recognized, the RLA only preempts

claims to the extent necessary to ensure CBA

construction by grievance and arbitration. Pet. App.

35a-36a, n.27 (citing Lingle, 486 U.S. at 413 n.12).

Thus, at most a trial court should enjoin a state court

35

or administrative agency from construing terms in a

CBA. Pet. App. 35a-36a n.27. In this case, where no

terms in the CBA are disputed, such an injunction

would be meaningless.

In short, even if the decision below conflicted

with decisions of other courts, and even if the question

presented otherwise merited this Court’s consideration, the Court would be better served addressing it

in a case more representative of disputes between

employers and employees under the RLA.

CONCLUSION

The petition for a writ of certiorari should be

denied.

RESPECTFULLY SUBMITTED.

ROBERT W. FERGUSON

Attorney General

NOAH G. PURCELL

Solicitor General

Counsel of Record

ANNE E. EGELER

PETER B. GONICK

Deputy Solicitors General

JAMES P. MILLS

Senior Counsel

February 25, 2019

1125 Washington Street SE

Olympia, WA 98504-0100

360-753-6200

noah.purcell@atg.wa.gov

APPENDIX

1a

*****

[SER 205]

State of Washington

DEPARTMENT OF LABOR AND INDUSTRIES

EMPLOYMENT STANDARDS PROGRAM – (360) 902-5316

P.O. BOX 44510, OLYMPIA, WASHINGTON 98504-4510

NOTICE OF INFRACTION

THIS DECISION IS APPEALABLE UNDER

RCW 34.05 AND RCW 49.42.285

FAILURE TO APPEAL WITHIN 20 DAYS OF THE

DATE OF THIS NOTICE OF INFRACTION

WILL WAIVE APPEAL RIGHTS.

CERTIFIED MAIL

May 31, 2012

Lawton Humphrey

Davis Wright Tremaine LLP

1201 3rd Ave, Suite 2200

Seattle, WA 98101-3045

Representing:

Alaska Airlines, Inc. – A

Corporation

Laura Masserant

23796 Brixton Place

Poulsbo, WA 98370

Subject: Notice of Infraction No: PL-13-12

Cast No: 74164

Employer: Alaska Airlines, Inc.

Complaint filed by Employee:

Laura Masserant

The Department of Labor and Industries (L&I)

received a complaint on June 21, 2011 filed by Laura

Masserant against her employer, Alaska Airlines, Inc.

Ms. Masserant alleged the following:

2a

1. Her employer incorrectly calculated her available

amount of family sick leave on or about May 20, 2011.

2. Her employer denied her the choice to use her

available family sick leave to cover her absence from

May 21-22, 2011 to care for a minor child with a health

condition that required treatment or supervision.

3. Her employer denied her the choice to use her

vacation to cover her absence from May 21-22, 2011 to

care for a minor child with a health condition that

required treatment or supervision.

[SER 206]

Following an investigation, the Department

determined that Ms. Masserant was entitled to seven

(7) days of vacation, which Alaska Airlines, Inc. did

not refute. On May 20-21, 2011, she asked her

employer to use her choice of vacation leave to care for

a minor child with a health condition that required

treatment or supervision. Alaska Airlines, Inc.

disallowed the use of vacation to cover her absence.

L&I has determined that Alaska Airlines, Inc.

violated RCW 49.12.270 by denying Ms. Masserant

the use of any and all of her sick leave or other paid

time off to care for her minor child. The department

hereby issues this Notice of Infraction.

ORDER TO PAY PENALTY

RCW 49.76.080 authorizes the director to impose a

fine of up to two hundred dollars ($200.00) for the first

infraction and up to one thousand dollars ($1,000.00)

for repeat infractions of the Family Care Act. Having

determined that the Alaska Airlines, Inc. has no

previous infractions of the Family Care Act, the

3a

department orders Alaska Airlines, Inc. to pay the

following penalty.

Infraction

Number

PL-13-12

Issue

Violation of

RCW 49.12.270

Total Penalty

Assessment

Penalty

Assessed

$200.00

$200.00

PAYMENT

Send a check or money order made payable to the

Department of Labor and Industries including a

reference to Infraction number PL-13-12 no later than

June 20, 2012, mail the check or money order to:

Department of Labor & Industries

Employment Standards Division

P.O. Box 44510

Olympia, WA 98504-4510

Or, if sending a response that requires delivery to

L&I’s physical location, send to:

Department of Labor & Industries

Employment Standards Division

7273 Linderson Blvd

Olympia, WA 98504-4510

y

Include note with Infraction # PL-13-12 on

remittance

[SER 207]

APPEAL RIGHTS

Under the Administrative Procedures Act, RCW 34.05

and RCW 49.12.285, an employer, an employee, or any

person aggrieved a Notice of Infraction may appeal

within 20 days of issuance.

4a

How to appeal: To appeal, a written notice of appeal

must be filed with L&I within 20 days of the date of

issuance of the Notice of Infraction. To file the written

notice of appeal, mail or deliver the original and 2

copies of the notice of appeal to:

Elizabeth Smith, Program Manager

Department of Labor & Industries

Employment Standards Program

P.O. Box 44510

Olympia, WA 98504-4510

Content of appeal: The notice of appeal must:

(A) Specify the name, address, and telephone number

of the appealing party, (B) Specify the Notice of

Infraction appealed, (C) Specify which findings and

conclusions are erroneous; (D) Have written

arguments supporting the appeal attached; and (E) Be

served upon all other parties or their representatives

at the time the notice of appeal is filed.

Effect of failure to appeal: If L&I does not receive

a notice of appeal within 20 days of date of issuance of

the Notice of Infraction, the Notice of Infraction shall

become FINAL AND BINDING, and not subject to

further appeal.

If you have questions about the Notice of Infraction,

please contact David Johnson, Industrial Relations

Specialist at (360) 902-4930 or by letter to the address

above.

Issued by:

s/ Elizabeth Smith

5/31/2012

Elizabeth Smith

Issuance date

Employment Standards Program Manager

Department of Labor and Industries

5a

cc:

David Johnson, Industrial Relations Specialist

Attached:

Family Care Act (RCW 49.76)

Family Care WAC 296-130

[SER 208]

CERTIFICATE OF MAILING

I certify that on this day I caused to be mailed

by delivering this Notice of Infraction issued on this

date to Consolidated Mail Services for placement in

the United States Postal Service, certified mail, and

first class mail postage prepaid, to the parties listed

below.

Lawton Humphrey

Davis Wright Tremaine LLP

1201 3rd Ave, Suite 2200

Seattle, WA 98101-3045

ARTICLE NUMBER

91 7199 9991 7030 1082

1954

Representing:

Alaska Airlines, Inc.

Laura Masserant

23796 Brixton Place

Poulsbo, WA 98370

ARTICLE NUMBER

91 7199 9991 7030 1082

1961

Dated at Tumwater, Washington on this 31st day of

May, 2012.

DEPARTMENT

INDUSTRIES

OF

By: s/ David L. Johnson

David L. Johnson

[SER 209]

*****

LABOR

AND

6a

CHAPTER 236

[Substitute House Bill No. 1319]

FAMILY LEAVE

AN ACT Relating to notice to employees of

employer leave policies, use of employer-granted leave

to care for minor children with health conditions, and

leave from employment for maternity disability;

amending RCW 49.12.005; adding new sections to

chapter 49.12 RCW; creating a new section;

prescribing penalties; and providing an effective date.

Be it enacted by the Legislature of the State of

Washington:

NEW SECTION. Sec. 1. The legislature

recognizes the changing nature of the work force

brought about by increasing numbers of working

mothers, single parent households, and dual career

families. The legislature finds that the needs of

families must be balanced with the demands of the

workplace to promote family stability and economic

security. The legislature further finds that it is in the

public interest for employers to accommodate

employees by providing reasonable leaves from work

for family reasons. In order to promote family

stability, economic security, and the public interest,

the legislature hereby establishes a minimum

standard for family care. Nothing contained in this act

shall prohibit any employer from establishing family

care standards more generous than the minimum

standards set forth in this act.

NEW SECTION. Sec. 2. The department shall

develop and furnish to each employer a poster which

describes an employer’s obligations and an employee’s

7a

rights under this 1988 act. The poster must include

notice about any state law, rule, or regulation

governing maternity disability leave and indicate that

federal or local ordinances, laws, rules, or regulations

may also apply. The poster must also include a

telephone number and an address of the department

to enable employees to obtain more information

regarding this 1988 act. Each employer must display

this poster in a conspicuous place. Every employer

shall also post its leave policies, if any, in a

conspicuous place. Nothing in this section shall be

construed to create a right to continued employment.

NEW SECTION. Sec. 3. An employer shall

allow an employee to use the employee’s accrued sick

leave to care for a child of the employee under the age

of eighteen with a health condition that requires

treatment or supervision. Use of leave other than

accrued sick leave to care for a child under the

circumstances described in this section shall be

governed by the terms of the appropriate collective

bargaining agreement or employer policy, as

applicable.

NEW SECTION. Sec. 4. The department shall

administer and investigate violations of sections 2 and

3 of this act.

NEW SECTION. Sec. 5. The department may

issue a notice of infraction if the department

reasonably believes that an employer has failed to

comply with section 2 or 3 of this act. The form of the

notice of infraction shall be adopted by rule pursuant

to chapter 34.04 RCW. An employer who is found to

have committed an infraction under section 2 or 3 of

this act may be assessed a monetary penalty not to

8a

exceed two hundred dollars for each violation. An

employer who repeatedly violates section 2 or 3 of this

act may be assessed a monetary penalty not to exceed

one thousand dollars for each violation. For purposes

of this section, the failure to comply with section 2 of

this act as to an employee or the failure to comply with

section 3 of this act as to a period of leave sought by

an employee shall each constitute separate violations.

An employer has twenty days to appeal the notice of

infraction. Any appeal of a violation determined to be

an infraction shall be heard and determined by an

administrative law judge. Monetary penalties

collected under this section shall be deposited into the

general fund.

NEW SECTION. Sec. 6. Nothing in this act

shall be construed to reduce any provision in a

collective bargaining agreement.

NEW SECTION. Sec. 7. The department

shall notify all employers of the provisions of sections

1 through 6 of this act.

Sec. 8. Section 1, chapter 16, Laws of 1973 2nd

ex. sess. and RCW 49.12.005 are each amended to

read as follows:

For the purposes of this chapter:

(1) The term “department”

department of labor and industries.

means

the

(2) The term “director” means the director of

the department of labor and industries, or his

designated representative.

(3) The term “employer” means any person,

firm, corporation, partnership, business trust, legal

representative, or other business entity which

9a

engages in any business, industry, profession, or

activity in this state and employs one or more

employees and for the purposes of sections 1 through

7 of this 1988 act also includes the state, any state

institution, any state agency, political subdivisions of

the state, and any municipal corporation or quasimunicipal corporation.

(4) The term “employee” means an employee

who is employed in the business of his employer

whether by way of manual labor or otherwise.

(5) The term “conditions of labor” shall mean

and include the conditions of rest and meal periods for

employees including provisions for personal privacy,

practices, methods and means by or through which

labor or services are performed by employees and

includes bona fide physical qualifications in

employment, but shall not include conditions of labor

otherwise governed by statutes and rules and

regulations relating to industrial safety and health

administered by the department.

(6) For the purpose of this 1973 amendatory act

a minor is defined to be a person of either sex under

the age of eighteen years.

(7) The term “committee” shall mean the

industrial welfare committee.

NEW SECTION. Sec. 9. Sections 1 through 7

of this act are each added to chapter 49.12 RCW.

NEW SECTION. Sec. 10. Prior to the effective

date of this act, the department of labor and

industries may take such steps as are necessary to

ensure that sections 1 through 8 of this act are

implemented on their effective date.

10a

NEW SECTION. Sec. 11. If any provision of

this act or its application to any person or

circumstance is held invalid, the remainder of the act

or the application of the provision to other persons or

circumstances is not affected.

NEW SECTION. Sec. 12. This act shall take

effect on September 1, 1988.

Passed the House March 9, 1988.

Passed the Senate March 6, 1988.

Approved by the Governor March 24, 1988.

Filed in Office of Secretary of State March 24,

1988.

11a

CHAPTER 243

[Substitute Senate Bill 6426]

EMPLOYER-GRANTED LEAVE—CARE FOR

FAMILY MEMBERS

AN ACT Relating to use of employer-granted

leave to care for family members with serious medical

conditions; amending RCW 49.12.270; adding new

sections to chapter 49.12 RCW; and providing an

effective date.

Be it enacted by the Legislature of the State of

Washington:

Sec. 1. RCW 49.12.270 and 1988 c 236 s 3 are

each amended to read as follows:

(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 ((accrued))

choice of sick leave or other paid time off to care

for: (a) A child of the employee ((under the age of

eighteen)) 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.

12a

(2) Use of leave other than ((accrued)) sick leave

or other paid time off to care for a child, spouse,

parent, parent-in-law, or grandparent under the

circumstances described in this section shall be

governed by the terms of the appropriate collective

bargaining agreement or employer policy, as

applicable.

NEW SECTION. Sec. 2. A new section is added

to chapter 49.12 RCW to read as follows:

The definitions in this section apply throughout

RCW 49.12.270 through 49.12.295 unless the context

clearly requires otherwise.

(1) “Child” means a biological, adopted, or foster

child, a stepchild, a legal ward, or a child of a person

standing in loco parentis who is: (a) Under eighteen

years of age; or (b) eighteen years of age or older and

incapable of self-care because of a mental or physical

disability.

(2) “Grandparent” means a parent of a parent

of an employee.

(3) “Parent” means a biological parent of an

employee or an individual who stood in loco parentis

to an employee when the employee was a child.

(4) “Parent-in-law” means a parent of the

spouse of an employee.

(5) “Sick leave or other paid time off ” means

time allowed under the terms of an appropriate

collective bargaining agreement or employer policy, as

applicable, to an employee for illness, vacation, and

personal holiday.

13a

(6) “Spouse” means a husband or wife, as the

case may be.

NEW SECTION. Sec. 3. A new section is added

to chapter 49.12 RCW to read as follows:

An employer shall not discharge, threaten to

discharge, demote, suspend, discipline, or otherwise

discriminate against an employee because the

employee: (1) Has exercised, or attempted to exercise,

any right provided under RCW 49.12.270 through

49.12.295; or (2) has filed a complaint, testified, or

assisted in any proceeding under RCW 49.12.270

through 49.12.295.

NEW SECTION. Sec. 4. This act takes effect

January 1, 2003.

Passed the Senate March 12, 2002.

Passed the House March 8, 2002.

Approved by the Governor March 29, 2002.

Filed in Office of Secretary of State March 29,

2002.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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