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.