Alaska Airlines Inc., an Alaska corporation, Plaintiff-Appellant,
Judy Schurke, in her official capacity as Director of the State of Washington Department of Labor and Industries; Elizabeth Smith, in her official capacity as Employment Standards Program Manager of the State of Washington Department of Labor and Industries, Defendants-Appellees, Association of Flight Attendants - Communication Workers of America, AFL-CIO, Intervenor-Defendant-Appellee.
and Submitted En Banc September 19, 2017 San Francisco,
from the United States District Court for the Western
District No. 2:11-cv-00616-JLR of Washington James L. Robart,
Senior District Judge, Presiding
A. Hutcheson (argued) and Rebecca Francis, Davis Wright
Tremaine LLP, Seattle, Washington, for Plaintiff-Appellant.
B. Gonick (argued), Deputy Solicitor General, Olympia,
Washington; James P. Mills, Assistant Attorney General;
Robert W. Ferguson, Attorney General; Office of the Attorney
General, Tacoma, Washington; for Defendants-Appellees.
Kathleen Phair Barnard (argued), Schwerin Campbell Barnard
Iglitzin & Lavitt LLP, Seattle, Washington for
Before: Sidney R. Thomas, Chief Judge, and M. Margaret
McKeown, Richard A. Paez, [*] Marsha S. Berzon, Richard
C.Tallman, Consuelo M. Callahan, Carlos T. Bea, Milan
D.Smith, Jr., Sandra S. Ikuta, Jacqueline H. Nguyen and
Andrew D. Hurwitz, Circuit Judges.
the district court's summary judgment in favor of the
defendants, the en banc court held that the Railway Labor Act
did not preempt a worker's claim premised on a state law
right to reschedule vacation leave for family medical
purposes, when the worker's underlying right to vacation
leave was covered by a collective bargaining agreement.
banc court held that the RLA did not preempt the worker's
claim because the claim neither arose entirely from nor
required construction of the CBA; that the CBA must be
consulted to confirm the existence of accrued vacation days
was not sufficient to extinguish the worker's independent
state law right to use the accrued time to care for a sick
Judge Ikuta, joined by Judges Tallman, Callahan, Bea, and M.
Smith, wrote that resolution of the state law claim required
interpretation or application of the CBA, and the claim
therefore constituted a "minor dispute" that must
be resolved through the RLA's mandatory arbitral
BERZON, CIRCUIT JUDGE.
asked whether a claim premised on a state law right to
reschedule vacation leave for family medical purposes is
preempted by the Railway Labor Act ("RLA"), 45
U.S.C. §§ 151-65, 181-88, when the worker's
underlying right to vacation leave is covered by a collective
bargaining agreement ("CBA"). We conclude that it
Supreme Court has repeatedly instructed that RLA preemption -
like the "virtually identical" preemption under
section 301 of the Labor Management Relations Act
("LMRA"), 29 U.S.C. § 185 - extends only as
far as necessary to protect the role of labor arbitration in
resolving CBA disputes. Hawaiian Airlines, Inc. v.
Norris, 512 U.S. 246, 262-64 (1994); Lingle v. Norge
Div. of Magic Chef, Inc., 486 U.S. 399, 413 (1988).
Consistent with this precedent, we recognize RLA and LMRA
§ 301 preemption only where a state law claim arises
entirely from or requires construction of a CBA. Matson
v. United Parcel Serv., Inc., 840 F.3d 1126, 1132-33
(9th Cir. 2016); Kobold v. Good Samaritan Reg'l Med.
Ctr., 832 F.3d 1024, 1032-33 (9th Cir. 2016);
Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1060
(9th Cir. 2007). Neither condition applies here. That a CBA
must be consulted to confirm the existence of accrued
vacation days is not sufficient to extinguish an independent
state law right to use the accrued time to care for a sick
2011, Laura Masserant, a flight attendant for Alaska Airlines
("the Airline"), asked for time off to care for her
son, who was sick with bronchitis. Masserant had no sick days
available, so she asked to use two of her seven days of
accrued vacation leave.
Airline denied Masserant's request, noting that, in
accordance with the CBA between the Airline and the
Association of Flight Attendants ("the Union"),
Masserant's banked vacation days had already been
scheduled for use later in the year. Under the terms of the
CBA, vacation days for each calendar year are requested the
preceding fall and scheduled by January 1 for the ensuing
year. Once scheduled, these vacation days may be
"exchanged" between flight attendants, used for
personal medical leaves of absence, used for
maternity-related leaves of absence, used to extend
bereavement leave, or "cashed out" - that is, paid
out immediately, with the vacation days kept on calendar but
converted to unpaid time off. However, the CBA does not allow
scheduled vacation days to be moved for family medical
reasons. Accordingly, Masserant's only option under the
CBA was to take unscheduled leave to care for her son and so
to incur disciplinary "points."
21, 2011, Masserant filed a complaint with the Washington
Department of Labor and Industries ("L&I"),
alleging that the Airline's refusal to allow use of
banked vacation days violated the Washington Family Care Act
("WFCA"), Wash. Rev. Code § 49.12.270. The
WFCA guarantees workers the flexibility to use accrued sick
leave or other paid leave for family medical reasons. Workers
invoking the WFCA must generally "comply with the terms
of the [CBA] or employer policy applicable to the
leave," except that they need not comply with terms or
policies "relating to the choice of leave." Wash.
Rev. Code § 49.12.270(1).
Airline opposed Masserant's WFCA claim on two grounds
here relevant. First, it disputed L&I's jurisdiction.
The Airline asserted that Masserant's complaint was not
an ordinary state law claim but a CBA dispute in disguise,
and therefore was reserved, under the RLA, to the exclusive
jurisdiction of the CBA's grievance and arbitration
mechanism. Second, the Airline disputed Masserant's view
of the application of Washington law to the CBA's
vacation leave provisions. According to the Airline,
requiring adherence to the CBA's vacation-scheduling
regime was not a prohibited restriction on "the choice
of leave," Wash. Rev. Code § 49.12.270(1), but a
permissible condition on earning leave in the first place.
state agency sided with Masserant. The investigator
responsible for Masserant's claim noted that it was
undisputed that Masserant's banked vacation days were
available as of May 2011 for exchange, personal medical
leave, maternity-related leave, bereavement leave, or
immediate cash-out. The leave was therefore
"earned," and Masserant was "entitled" to
use it, within the meaning of the WFCA. The investigator
concluded that the CBA's limits on the use of banked
vacation time, which could be used for certain other
unscheduled purposes, served only to limit "the choice
of leave," and were therefore void under state law. In
May 2012, L&I issued a final notice of infraction and a
did not directly address the Airline's jurisdictional
argument. But in resting entirely on the interpretation and
application of Washington law rather than on some disputed
aspect of the CBA, L&I necessarily rejected the argument.
As the Supreme Court held in Norris, RLA preemption
does not apply where the state law claim can be resolved
independently of any CBA dispute. Norris, 512 U.S.
at 256-58; see also Lingle, 486 U.S. at 407
(describing the same standard in the LMRA § 301
the L&I proceeding was ongoing, the Airline was in the
midst of federal litigation against L&I officials to
enjoin it. That federal litigation, the genesis of the
present appeal, asserted that Masserant's state law claim
was so bound up in a dispute over the terms of the CBA as to
be preempted under the Railway Labor Act.
was not a party to the federal action, but her Union
intervened. In support of its intervention motion, the Union
noted that if WFCA claims such as Masserant's were to be
treated as CBA disputes, it would be largely the Union,
rather than individual workers, that would have
responsibility for pursuing those disputes through grievance
and arbitration. See Int'l Bhd. of Elec. Workers v.
Foust, 442 U.S. 42, 49-52 (1979).
district court concluded that Masserant's WFCA claim was
unrelated to any dispute over the meaning of the CBA. It was
common ground among the parties that Masserant had banked
vacation days but was not permitted, under the terms of the
CBA, to take them early for her son's medical care. The
question was therefore purely one of state law - whether
banked, prescheduled vacation days were subject to the
state's nonnegotiable right to use accrued paid leave for
family medical purposes. The Airline itself framed the
inquiry in these terms at the L&I proceeding, arguing
that "Masserant correctly sets out the approach outlined
by the CBA and Alaska [Airlines] policy, but is wrong in
her WFCA analysis." (Emphasis added).
on a long line of RLA and LMRA § 301 cases from this
circuit and the Supreme Court, the district court concluded
that referring to undisputed CBA provisions in the course of
adjudicating a state law cause of action was not enough to
trigger RLA preemption. See Livadas v. Bradshaw, 512
U.S. 107, 124-25 (1994); Lingle, 486 U.S. at 407;
Burnside, 491 F.3d at 1060. The court therefore
denied the Airline's motion for summary judgment and
granted the defendants' and Union's cross-motions.
appeal, the Airline renews its argument that the RLA preempts
Masserant's WFCA claim. A divided panel of this court
agreed. The panel majority acknowledged that the terms of the
CBA were undisputed. Alaska Airlines Inc. v.
Schurke, 846 F.3d 1081, 1093 (9th Cir. 2017). But it
held the state law cause of action nonetheless preempted
"because the right to take paid leave arises solely from
the collective bargaining agreement." Id. The
panel majority reasoned that the WFCA "only applies if
the employee has a right conferred by the collective
bargaining agreement, so the state right is intertwined with
. . . the collective bargaining agreement."
Id. A majority of active, nonrecused judges
voted for en banc rehearing.
review de novo the district court's conclusion that RLA
preemption does not apply. Cramer v. Consol. Freightways,
Inc., 255 F.3d 683, 689 (9th Cir. 2001) (en banc), and
affirm the judgment of the district court. Under both the RLA
and LMRA § 301, federal preemption extends no further
than necessary to preserve the role of grievance and
arbitration, and the application of federal labor law, in
resolving CBA disputes. That a state law cause of
action is conditioned on some term or condition of employment
that was collectively bargained, rather than unilaterally
established by the employer, does not itself create a CBA
begin by reviewing the language of the RLA and the long line
of cases explaining the purpose and scope of RLA and LMRA
§ 301 preemption.
creates "a comprehensive framework for resolving labor
disputes" in the rail and airline industries.
Norris, 512 U.S. at 252. Within this framework,
labor disputes are first categorized as
"representation," "major," or
"minor," according to their subject matter,
then assigned to a corresponding dispute-resolution
mechanism. See W. Airlines, Inc. v. Int'l Bhd. of
Teamsters, 480 U.S. 1301, 1302-03 (1987) (O'Connor,
J., in chambers).
disputes concern the scope of the bargaining unit and the
identity of the bargaining representative. Id. at
1302. Under section 2, Ninth, of the RLA, representation
disputes must be resolved by the National Mediation Board.
Id. at 1302-03; see also 45 U.S.C.
§§ 152, 181.
disputes are those "concerning rates of pay, rules, or
working conditions." 45 U.S.C. § 151a; Consol.
Rail Corp. v. Ry. Labor Execs.' Ass'n
(Conrail), 491 U.S. 299, 302 (1989). "They
arise where there is no [CBA] or where it is sought to change
the terms of [an existing] one." Conrail, 491
U.S. at 302 (citation omitted). Major disputes must be
resolved through an extensive bargaining, mediation, and
noncompulsory arbitration process, in which both sides are
subject to certain duties enforceable in federal court. 45
U.S.C. § 152, First, Seventh; id. §§
156, 181; Conrail, 491 U.S. at 302.
"minor" disputes are those "growing out of
grievances or . . . the interpretation or application of
agreements covering rates of pay, rules, or working
conditions." 45 U.S.C. § 151a; Conrail,
491 U.S. at 303. They are, in other words, CBA disputes, for
which the term "grievance" is often used as a
generic descriptor. Norris, 512 U.S. at 255; see
also Conrail, 491 U.S. at 302 ("[M]ajor disputes
seek to create contractual rights, minor disputes to enforce
them."). Minor disputes must be addressed through the
CBA's established grievance mechanism, and then, if
necessary, arbitrated before the appropriate adjustment
board. 45 U.S.C. § 152, Sixth; id.
§§ 153, 184.
the National Labor Relations Act ("NLRA"), 29
U.S.C. §§ 151-69, and the LMRA, 29 U.S.C.
§§ 141-97, the RLA contains no express preemption
language. See Air Transp. Ass'n of Am. v. City &
County of San Francisco, 266 F.3d 1064, 1076 (9th Cir.
2001). Preemption is instead implied as necessary to give
effect to congressional intent, Allis-Chalmers Corp. v.
Lueck, 471 U.S. 202, 208-11 (1985), subject to the
critical caveat that the "[p]re-emption of employment
standards within the traditional police power of the State
should not be lightly inferred," Norris, 512
U.S. at 252 (internal quotation marks omitted).
intent in passing the RLA was to promote industrial peace by
providing a "comprehensive" scheme for resolving
labor disputes "through negotiation rather than
industrial strife." Norris, 512 U.S. at 252;
Bowen v. U.S. Postal Serv., 459 U.S. 212, 225
(1983); see 45 U.S.C. § 151a. As in the LMRA
context,  the arbitration of CBA disputes in
RLA-covered industries - "minor disputes," in RLA
terms - is an essential component of federal labor policy.
See United Steelworkers v. Warrior & Gulf Navigation
Co. (Steelworkers II), 363 U.S. 574, 578
(1960). The reasons are threefold.
a collective bargaining agreement is more than just a
contract; it is "an effort to erect a system of
industrial self-government." Id. at 580;
see also California v. Taylor, 353 U.S. 553, 565-66
(1957). A CBA sets forth "a generalized code to govern .
. . the whole employment relationship," including
situations "which the draftsmen [could not] wholly
anticipate." Steelworkers II, 363 U.S. at
578-79. Accordingly, CBA dispute resolution is itself a part
of a "continuous collective bargaining process,"
United Steelworkers v. Enter. Wheel & Car Corp.
(Steelworkers III), 363 U.S. 593, 596 (1960) -
"a vehicle by which meaning and content are given"
to the labor agreement, Steelworkers II, 363 U.S. at
581. To set aside the parties' grievance and arbitration
process is to undo an integral part of the workplace
self-governance scheme. Id. at 578; Bhd. of R.R.
Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 378
(1969); see also Conrail, 491 U.S. at 310-11.
and relatedly, a CBA is not strictly limited to its terms,
but gives rise to a broader common law of its own - "the
common law of a particular industry or of a particular
plant." Steelworkers II, 363 U.S. at 579. The
resolution of CBA disputes may therefore "assume
proportions of which judges are ignorant." United
Steelworkers v. Am. Mfg. Co. (Steelworkers I),
363 U.S. 564, 567 (1960); see also Conrail, 491 U.S.
at 311-12. For example, the resolution of CBA disputes may be
informed by ad hoc considerations - "the effect upon
productivity of a particular result, its consequence to the
morale of the shop, . . . whether tensions will be heightened
or diminished," Steelworkers II, 363 U.S. at
582 - which a judge may lack the expertise properly to
grievance and arbitration are believed to provide certain
procedural benefits, including a more "prompt and
orderly settlement" of CBA disputes than that offered by
the ordinary judicial process. 45 U.S.C. § 151a. In
committing CBA disputes to an adjustment board, a worker
"receive[s] a final administrative answer to his
dispute; and if he wins, he will be spared the expense and
effort of time-consuming appeals which he may be less able to
bear than the [employer]." Union Pac. R.R. Co. v.
Sheehan, 439 U.S. 89, 94 (1978) (per curiam). The
intended result is to prevent an "[a]ccumulation of
[minor] disputes," Bhd. of R.R. Trainmen v. Chi.
River & Ind. R.R. Co., 353 U.S. 30, 40 (1957), and
so to "diminish the risk of interruptions in
commerce." Conrail, 491 U.S. at 311.
account for these considerations, the Supreme Court has held
that RLA and LMRA grievance and arbitration systems must be
used for claims arising under the CBA. See Air Transp.
Ass'n, 266 F.3d at 1076 (citing Taylor, 353
U.S. at 559-61). Minor disputes under the RLA - those
disputes concerned with "duties and rights created or
defined by" the collective bargaining agreement,
Norris, 512 U.S. at 258 - "must be resolved
only through the RLA mechanisms." Id. at 253;
see also Atchison, Topeka & Santa Fe Ry. Co. v.
Buell, 480 U.S. 557, 563 (1987). To the extent state law
would also create a cause of action for a minor dispute, and
thereby "permit an individual to sidestep available
grievance procedures," the state law action is
preempted. Lingle, 486 U.S. at 411.
limited preemption has other benefits as well. In particular,
it ensures that CBA disputes are governed by a uniform set of
principles informed by federal labor law and the industrial
common law applicable to the agreement, id. at
405-06, rather than "conflicting substantive
interpretation under competing [state] legal systems."
Local 174, Teamsters v. Lucas Flour Co., 369 U.S.
95, 104 (1962); see also Republic Steel Corp. v.
Maddox, 379 U.S. 650, 654-57 (1965); Int'l
Ass'n of Machinists v. Cent. Airlines, Inc., 372
U.S. 682, 691-95 & nn. 17-18 (1963). "[T]he
application of state law" to CBA disputes "might
lead to inconsistent results since there could be as many
state-law principles as there are States."
Lingle, 486 U.S. at 406; see also Norris,
512 U.S. at 263 & n.9.
same time - and of critical importance here - the RLA does
not provide for, nor does it manifest any interest
in, national or systemwide uniformity in substantive labor
rights. See Buell, 480 U.S. at
565. "[T]he enactment by Congress of the
Railway Labor Act was not a pre-emption of the field of
regulating working conditions themselves . . . ."
Terminal R.R. Ass'n of St. Louis v. Bhd. of R.R.
Trainmen, 318 U.S. 1, 7 (1943). Setting minimum wages,
regulating work hours and pay periods, requiring paid and
unpaid leave, protecting worker safety, prohibiting
discrimination in employment, and establishing other worker
rights remains well within the traditional police power of
the states, and will naturally result in labor standards that
affect workers differently from one jurisdiction to the next,
even when those workers fall under a single labor agreement.
See Norris, 512 U.S. at 262-63.
differently, it is not a concern of the RLA that the
employer's operations may be affected by its obligation
to comply with a different set of substantive state law
rights in each jurisdiction. The purpose of RLA minor dispute
preemption is to reduce commercial disruption by
"facilitat[ing] collective bargaining and . . .
achiev[ing] industrial peace," Foust, 442 U.S.
at 47, not to reduce burdens on an employer by federalizing
all of labor and employment law so as to preempt independent
state law rights. For RLA-covered workers, as for
LMRA-covered workers, "it would be inconsistent with
congressional intent . . . to preempt state rules that
proscribe conduct, or establish rights and obligations,
independent of a labor contract." Lueck, 471
U.S. at 212.
follows from the RLA minor dispute provision's focus on
grieving and arbitrating CBA disputes that Congress
did not intend to preempt state law claims simply because
they in some respect implicate CBA provisions,
Lueck, 471 U.S. at 211, make reference to a
CBA-defined right, Livadas, 512 U.S. at 125, or
create a state law cause of action factually
"parallel" to a grievable claim, Lingle,
486 U.S. at 408-10. Rather, "an application of state law
is pre-empted . . . only if such application requires the
interpretation of a collective-bargaining
agreement." Id. at 413. In sum, RLA minor
dispute preemption and LMRA § 301 preemption protect the
primacy of grievance and arbitration as the forum for
resolving CBA disputes and the substantive supremacy of
federal law within that forum, nothing more. Norris,
512 U.S. at 262-63.
evaluating RLA or LMRA § 301 preemption, we are guided
by the principle that if a state law claim "is either
grounded in the provisions of the labor contract or requires
interpretation of it," the dispute must be resolved
through grievance and arbitration. Burnside, 491
F.3d at 1059. The line "between preempted claims and
those that survive" is not one "that lends itself
to analytical precision." Cramer, 255 F.3d at
691. This circuit, however, has distilled the Supreme
Court's RLA and LMRA § 301 case law into a two-part
inquiry into the nature of a plaintiff's claim.
Matson, 840 F.3d at 1132-33; Kobold, 832
F.3d at 1032-34; Burnside, 491 F.3d at
to determine whether a particular right is grounded in a CBA,
we evaluate the "legal character" of the claim by
asking whether it seeks purely to vindicate a right or duty
created by the CBA itself. Livadas, 512 U.S. at 123.
If a claim arises entirely from a right or duty of the CBA -
for example, a claim for violation of the labor agreement,
whether sounding in contract or in tort, 
Lueck, 471 U.S. at 211 - it is, in effect, a CBA
dispute in state law garb, and is preempted.
Livadas, 512 U.S. at 122-23. In such cases, the CBA
is the "only source" of the right the plaintiff
seeks to vindicate. Norris, 512 U.S. at 258 (quoting
Andrews v. Louisville & Nashville R.R. Co., 406
U.S. 320, 324 (1972)). There is thus no part of the claim
that "do[es] not require construing [the]
collective-bargaining agreement," Lingle, 486
U.S. at 411, and as to which litigation in court, rather than
though the grievance and arbitration system, would be
appropriate. See Steelworkers I, 363 U.S. at 568.
For the same reason, there is no part of the claim in which
the uniform body of federal labor law does not control the
resolution of the parties' dispute. See Maddox,
379 U.S. at 654-57; Cent. Airlines, 372 U.S. at
691-95 & nn. 17-18; Lucas Flour, 369 U.S. at
contrast, claims are not simply CBA disputes by another name,
and so are not preempted under this first step, if they just
refer to a CBA-defined right, Livadas, 512 U.S. at
125; rely in part on a CBA's terms of employment,
Lueck, 471 U.S. at 211; run parallel to a CBA
violation, Lingle, 486 U.S. at 408-10; or invite use
of the CBA as a defense, Caterpillar Inc. v.
Williams, 482 U.S. 386, 398 (1987). See also
Kobold, 832 F.3d at 1032; Burnside, 491 F.3d at
if a right is not grounded in a CBA in the sense
just explained, we ask whether litigating the state law claim
nonetheless requires interpretation of a CBA, such that
resolving the entire claim in court threatens the proper role
of grievance and arbitration. Norris, 512 U.S. at
262; Livadas, 512 U.S. at 124-25.
"Interpretation" is construed narrowly; "it
means something more than 'consider,' 'refer
to,' or 'apply.'" Balcorta v. Twentieth
Century-Fox Film Corp., 208 F.3d 1102, 1108 (9th Cir.
2000). Accordingly, at this second step of an
RLA or LMRA § 301 preemption analysis, claims are only
preempted to the extent there is an active dispute over
"the meaning of contract terms." Livadas,
512 U.S. at 124. "[A] hypothetical connection
between the claim and the terms of the CBA is not enough to
preempt the claim . . . ." Cramer, 255 F.3d at
691 (emphasis added). Nor is it enough that resolving the
state law claim requires a court to refer to the CBA and
apply its plain or undisputed language - for example,
"to discern that none of its terms is reasonably in
dispute," id. at 692 (quoting Livadas,
512 U.S. at 125); to identify "bargained-for wage rates
in computing [a] penalty," Livadas, 512 U.S. at
125; or "to determine whether [the CBA] contains a clear
and unmistakable waiver of state law rights,"
Cramer, 255 F.3d at 692. See also Kobold,
832 F.3d at 1033.
the result of preemption at the second step is generally
not the extinguishment of the state law claim.
Kobold, 832 F.3d at 1033-34. As previously
explained, neither the RLA nor the LMRA allows for the
impairment of worker rights that would exist in the absence
of a CBA dispute. Norris, 512 U.S. at 256, 262-63.
It is contrary to the statutes' scope to allow "the
parties to a collective-bargaining agreement . . . to
contract for what is illegal under state law,"
Lueck, 471 U.S. at 212, or to "penalize
workers who have chosen to join a union by preventing them
from benefiting from state labor regulations imposing minimal
standards on nonunion employers." Metro. Life Ins.
Co. v. Massachusetts, 471 U.S. 724, 756 (1985); see
also 45 U.S.C. § 151a (stating, as a purpose of the
RLA, "to forbid any limitation upon freedom of
association among employees"). As a result, if, at the
second stage of the analysis, a state law claim depends on a
dispute over the meaning of a CBA, it is only "to that
degree preempted." Kobold, 832 F.3d at 1036;
see also Matson, 840 F.3d at 1135. That is, state
law claims are preempted by the RLA or LMRA § 301
"only insofar as resolution of the state-law claim
requires the interpretation of a collective-bargaining
agreement." Lingle, 486 U.S. at 409 n.8;
see also Livadas, 512 U.S. at 124 n.18.
two-step preemption inquiry suggests, RLA and LMRA § 301
preemption differ from typical conflict preemption because
they are not driven by substantive conflicts in law. Rather,
RLA and LMRA § 301 preemption are grounded in the need
to protect the proper forum for resolving certain
kinds of disputes (and, by extension, the substantive law
applied thereto). RLA and LMRA § 301 preemption are, in
effect, a kind of "forum" preemption, resembling
the doctrine of primary jurisdiction or the reference of
disputes to arbitration under the Federal Arbitration Act, 9
U.S.C. §§ 1-16.
considering primary jurisdiction, for example, a court's
goal is not to ascertain the substance of applicable law, but
to ensure that "an administrative body having regulatory
authority" that "requires expertise or uniformity
in administration" is permitted to resolve the issues
that Congress committed to it. Astiana v. Hain Celestial
Grp., Inc., 783 F.3d 753, 760 (9th Cir. 2015) (internal
quotation marks omitted). Similarly, in the arbitrability
context, a court's responsibility is to ascertain the
subject matter or posture of the dispute to determine the
proper forum for resolving it. See First Options of Chi.,
Inc. v. Kaplan, 514 U.S. 938, 943 (1995). RLA and LMRA
§ 301 preemption are analogous. The court's role is
not to resolve the labor dispute, but to protect the role of
grievance and arbitration as a forum for doing so to the
extent that forum's unique area of competency - CBA
disputes - is at issue.
parallels are more than superficial. For one, the result of
RLA and LMRA § 301 forum preemption is not to preempt
state laws as such, but to assure that discrete
claims are decided in the appropriate forum.
Caterpillar, 482 U.S. at 394 ("Section 301
governs claims . . . ."); see also, e.g.,
Norris, 512 U.S. at 266 ("[R]espondent's
claims for discharge in violation of public policy
and in violation of the Hawaii Whistleblower Protection Act
are not pre-empted by the RLA . . . ." (emphasis
added)); Int'l Bhd. of Elec. Workers v. Hechler,
481 U.S. 851, 859 (1987) ("[W]e must determine if
respondent's claim is sufficiently independent
of the collective-bargaining agreement . . . ."
(emphasis added)); Humble v. Boeing Co., 305 F.3d
1004, 1008 (9th Cir. 2002) ("[T]he plaintiff's
claim is the touchstone for the preemption analysis
. . . ." (emphasis added)). The primary point of
reference in the preemption analysis is therefore not state
law writ large - no state law is "challenged" under
RLA or LMRA § 301 preemption, nor is any state law at
risk of wholesale invalidation - but the plaintiff's
pleading. See Espinal v. Nw. Airlines, 90 F.3d 1452,
1456 (9th Cir. 1996) ("Where a plaintiff
contends that an employer's actions violated rights
protected by the CBA, there is a minor dispute subject to RLA
preemption. By contrast, where a plaintiff contends
that an employer's actions violated a state-law
obligation, wholly independent of its obligations under the
CBA, there is no preemption." (emphases added) (citation
the RLA and LMRA § 301 forum preemption inquiry is not
an inquiry into the merits of a claim; it is an inquiry into
the claim's "legal character" - whatever its
merits - so as to ensure it is decided in the proper forum.
Livadas, 512 U.S. at 123-24. In conducting the
preemption analysis, we may no more invade the province of
the state court to resolve a state law claim over which we
lack jurisdiction than we may invade the province of the
labor arbitrator to construe the CBA. See
Steelworkers III, 363 U.S. at 599. Our only job is to
decide whether, as pleaded, the claim "in this case is
'independent' of the [CBA] in the sense of
'independent' that matters for . . . pre-emption
purposes: resolution of the state-law claim does not require
construing the collective-bargaining agreement."
Lingle, 486 U.S. at 407.
distinction between RLA and LMRA § 301 preemption (as an
inquiry into the proper forum for resolving a claim) and the
more common application of conflict preemption (as an inquiry
into substantive conflicts between state and federal law) is
widely recognized across the circuits. See, e.g.,
Smith v. Am. Airlines, Inc., 414 F.3d 949, 952 (8th
Cir. 2005) ("[M]inor disputes are subject to mandatory
arbitration before an adjustment board which has primary
jurisdiction to construe the collective bargaining
agreement."); Sullivan v. Am. Airlines, Inc.,
424 F.3d 267, 276 (2d Cir. 2005) ("[P]rimary
jurisdiction over minor disputes under the RLA . . . exists
solely in the adjustment boards established pursuant to [the
RLA]."); Renneisen v. Am. Airlines, Inc., 990
F.2d 918, 923 (7th Cir. 1993) ("[T]he RLA mandates a
statutory forum for plaintiffs' claims.");
Davies v. Am. Airlines, Inc., 971 F.2d 463, 465 n.1
(10th Cir. 1992) ("By [RLA] 'preemption' we
refer to forum preemption."); Ry. Labor Execs.
Ass'n v. Pittsburgh & Lake Erie R.R. Co., 858
F.2d 936, 944 (3d Cir. 1988) ("[F]orum preemption under
the RLA may ultimately affect the litigation of this
case."); Miller v. Norfolk & W. Ry. Co.,
834 F.2d 556, 561 (6th Cir. 1987) ("[A] state claim
which is preempted by the RLA, as by the NLRA under
Garmon, is instead preempted under a choice of forum
Supreme Court further clarified the distinction in
Livadas. There, a worker subject to a CBA filed a
complaint with the California Division of Labor Standards
Enforcement ("DLSE"), seeking damages under a state
statute requiring the immediate payment of past wages upon
termination. Livadas, 512 U.S. at 111-12. DLSE
refused to consider the complaint, citing the worker's
CBA. Id. at 112-13. At the time, DLSE had a policy
of refusing to consider state law labor complaints that
involved a CBA in some way. Id. at 112-14, 121.
deciding against DLSE, the Supreme Court made two distinct
observations about two distinct preemption doctrines. First,
the Supreme Court noted that nothing about the worker's
claim implicated LMRA § 301 preemption. Although the
worker was owed wages based on having worked under a CBA, and
although the CBA determined the amount of those wages, the
CBA did not create the right to immediate payment on
termination. Id. at 124-25 ("The only issue
raised by Livadas's claim . . . was a question of state
law . . . ."). Nor was any disputed term of the CBA
implicated in the adjudication of that state law right.
Id. at 125 (observing that, although CBA-defined
wages were used to calculate damages under the Labor Code,
"[t]here is no indication that there was a
'dispute' in this case over the amount" of wages
owed under the CBA). The claim was therefore well within
DLSE's authority to adjudicate.
and separately, the Supreme Court concluded that DLSE's
policy of refusing to consider state law complaints involving
a CBA was subject to substantive conflict preemption, as the
policy uniquely disfavored CBA-covered workers, and thus
interfered with substantive federal rights under the NLRA. 29
U.S.C. § 157; Livadas, 512 U.S. at 116-17 &
n.11. The NLRA protects the right "to bargain
collectively through representatives of [workers'] own
choosing." 29 U.S.C. § 157. Accordingly, DLSE's
policy was preempted substantively to the extent there
existed, "rooted in the text of [the NLRA]," a
right to bargain without the state imposing penalties on
workers if they ultimately reached and became bound by a
labor agreement. Livadas, 512 U.S. at 117 n.11.
differences between LMRA § 301 preemption (and so RLA
preemption) and ordinary, substantive conflict preemption, as
the Court employed the doctrines in Livadas, are
significant. With respect to LMRA § 301 preemption, the
Court considered the worker's claim based on her
complaint before DLSE, concluded the claim was not
extinguished, and noted that a different result could obtain
in a differently pleaded claim under the same state statute.
Id. at 121-25 & n.19. The focus was thus the
plaintiff's pleading, the character of the claim, and the
proper forum to resolve that claim. With respect to
substantive conflict preemption under the NLRA, the Court
looked at the state law as the state applied it, concluded
that the rule of law applied by the state was substantively
in conflict with federal law, and invalidated it wholesale.
Id. at 128-32. The focus was thus the meaning of
state law and its consistency with federal law. The two
analyses - procedural and substantive - were not conflated in
Livadas and should not be conflated here. See
also Air Transp. Ass'n, 266 F.3d at 1076
(distinguishing RLA minor dispute preemption from
"substantive" conflict preemption as applied in the
RLA context, and observing that the latter "is analogous
to Machinists preemption under the NLRA").
perhaps because of the risk of such confusion that labor law
preemption is rarely described as an undifferentiated
application of the "field" or "conflict"
preemption that governs in other substantive areas, see
Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363,
372-73 & n.6 (2000), but rather by identifying the
particular species of labor preemption -
Garmon preemption, Machinists preemption,
RLA or LMRA § 301 preemption - relevant to the
parties' dispute, based on the federal labor law
interests ostensibly under threat in a given case. See,
e.g., Bldg. & Const. Trades Council of Metro.
Dist. v. Associated Builders & Contractors of Mass./R.I.,
Inc., 507 U.S. 218, 224 (1993); Retail Prop. Tr. v.
United Bhd. of Carpenters & Joiners, 768 F.3d 938,
951-55 (9th Cir. 2014). But as in Livadas, what
matters in a preemption analysis is not the nomenclature;
what matters is "[t]he purpose of Congress," which
is "the ultimate touchstone." Lueck, 471
U.S. at 208 (quoting Malone v. White Motor Corp.,
435 U.S. 497, 504 (1978)). In the RLA and LMRA § 301
context, the "purpose of Congress" is to protect
the role of grievance and arbitration and of federal labor
law in resolving CBA disputes, not to alter or displace state
law labor rights. Norris, 512 U.S. at 256;
Lingle, 486 U.S. at 408-09; Maddox, 379
U.S. at 654-57; Bhd. of R.R. Trainmen, Enter. Lodge, No.
27 v. Toledo, Peoria & W. R.R., 321 U.S. 50, 58
(1944). The preemption analysis is targeted accordingly - not
to the substance of state law or the merits of the
parties' dispute, but to the "legal character"
of the claim asserted. Livadas, 512 U.S. at 123. To
the extent a plaintiff's state law claim can be resolved
without infringing on the role of grievance and arbitration,
there is no "conflict" to speak of, and the
preemption analysis ends.
identified the correct approach to RLA preemption, applying
it in this case is straightforward.
Masserant's claim does not arise entirely from the CBA.
Masserant has alleged a violation of the WFCA's
independent state law right to use banked vacation days. Her
view of the WFCA, and that of the L&I, is that the
statute's "choice of leave" exception applies
to banked vacation already earned, even if under workplace
practices (whether CBA-governed or not) prescheduled vacation
may be rescheduled or used for exigencies only under
specified circumstances. Unsurprisingly, the Airline
disagrees with this interpretation of the WFCA. And after
further administrative or state court review, the Airline may
yet prevail in its view of Washington law. See Wash.
Admin. Code § 296-130-070 (describing the administrative
appeal process at L&I). But what matters here is not the
legal merits of Masserant's state law ...