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Alaska Airlines Inc. v. Schurke

United States Court of Appeals, Ninth Circuit

August 1, 2018

Alaska Airlines Inc., an Alaska corporation, Plaintiff-Appellant,
v.
Judy Schurke, in her official capacity as Director of the State of Washington Department of Labor and Industries; Elizabeth Smith, in her official capacity as Employment Standards Program Manager of the State of Washington Department of Labor and Industries, Defendants-Appellees, Association of Flight Attendants - Communication Workers of America, AFL-CIO, Intervenor-Defendant-Appellee.

          Argued and Submitted En Banc September 19, 2017 San Francisco, California

          Appeal 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

          Mark A. Hutcheson (argued) and Rebecca Francis, Davis Wright Tremaine LLP, Seattle, Washington, for Plaintiff-Appellant.

          Peter B. Gonick (argued), Deputy Solicitor General, Olympia, Washington; James P. Mills, Assistant Attorney General; Robert W. Ferguson, Attorney General; Office of the Attorney General, Tacoma, Washington; for Defendants-Appellees.

          Kathleen Phair Barnard (argued), Schwerin Campbell Barnard Iglitzin & Lavitt LLP, Seattle, Washington for Intervenor-Defendant-Appellee.

          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.

         SUMMARY[**]

         Labor Law

         Affirming the district court's summary judgment in favor of the defendants, the en banc court held that the Railway Labor Act did not preempt a worker's claim premised on a state law right to reschedule vacation leave for family medical purposes, when the worker's underlying right to vacation leave was covered by a collective bargaining agreement.

         The en banc court held that the RLA did not preempt the worker's claim because the claim neither arose entirely from nor required construction of the CBA; that the CBA must be consulted to confirm the existence of accrued vacation days was not sufficient to extinguish the worker's independent state law right to use the accrued time to care for a sick child.

         Dissenting, Judge Ikuta, joined by Judges Tallman, Callahan, Bea, and M. Smith, wrote that resolution of the state law claim required interpretation or application of the CBA, and the claim therefore constituted a "minor dispute" that must be resolved through the RLA's mandatory arbitral mechanism.

          OPINION

          BERZON, CIRCUIT JUDGE.

         We are asked whether a claim premised on a state law right to reschedule vacation leave for family medical purposes is preempted by the Railway Labor Act ("RLA"), 45 U.S.C. §§ 151-65, 181-88, when the worker's underlying right to vacation leave is covered by a collective bargaining agreement ("CBA"). We conclude that it is not.

         The Supreme Court has repeatedly instructed that RLA preemption - like the "virtually identical" preemption under section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185[1] - 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 child.

         I

         In May 2011, Laura Masserant, a flight attendant for Alaska Airlines ("the Airline"), asked for time off to care for her son, who was sick with bronchitis. Masserant had no sick days available, so she asked to use two of her seven days of accrued vacation leave.

         The Airline denied Masserant's request, noting that, in accordance with the CBA between the Airline and the Association of Flight Attendants ("the Union"), Masserant's banked vacation days had already been scheduled for use later in the year. Under the terms of the CBA, vacation days for each calendar year are requested the preceding fall and scheduled by January 1 for the ensuing year. Once scheduled, these vacation days may be "exchanged" between flight attendants, used for personal medical leaves of absence, used for maternity-related leaves of absence, used to extend bereavement leave, or "cashed out" - that is, paid out immediately, with the vacation days kept on calendar but converted to unpaid time off. However, the CBA does not allow scheduled vacation days to be moved for family medical reasons. Accordingly, Masserant's only option under the CBA was to take unscheduled leave to care for her son and so to incur disciplinary "points."

         On June 21, 2011, Masserant filed a complaint with the Washington Department of Labor and Industries ("L&I"), alleging that the Airline's refusal to allow use of banked vacation days violated the Washington Family Care Act ("WFCA"), Wash. Rev. Code § 49.12.270. The WFCA guarantees workers the flexibility to use accrued sick leave or other paid leave for family medical reasons. Workers invoking the WFCA must generally "comply with the terms of the [CBA] or employer policy applicable to the leave," except that they need not comply with terms or policies "relating to the choice of leave." Wash. Rev. Code § 49.12.270(1).[2]

         The Airline opposed Masserant's WFCA claim on two grounds here relevant. First, it disputed L&I's jurisdiction. The Airline asserted that Masserant's complaint was not an ordinary state law claim but a CBA dispute in disguise, and therefore was reserved, under the RLA, to the exclusive jurisdiction of the CBA's grievance and arbitration mechanism. Second, the Airline disputed Masserant's view of the application of Washington law to the CBA's vacation leave provisions. According to the Airline, requiring adherence to the CBA's vacation-scheduling regime was not a prohibited restriction on "the choice of leave," Wash. Rev. Code § 49.12.270(1), but a permissible condition on earning leave in the first place.

         The state agency sided with Masserant. The investigator responsible for Masserant's claim noted that it was undisputed that Masserant's banked vacation days were available as of May 2011 for exchange, personal medical leave, maternity-related leave, bereavement leave, or immediate cash-out. The leave was therefore "earned," and Masserant was "entitled" to use it, within the meaning of the WFCA. The investigator concluded that the CBA's limits on the use of banked vacation time, which could be used for certain other unscheduled purposes, served only to limit "the choice of leave," and were therefore void under state law. In May 2012, L&I issued a final notice of infraction and a $200 fine.

         L&I did not directly address the Airline's jurisdictional argument. But in resting entirely on the interpretation and application of Washington law rather than on some disputed aspect of the CBA, L&I necessarily rejected the argument. As the Supreme Court held in Norris, RLA preemption does not apply where the state law claim can be resolved independently of any CBA dispute. Norris, 512 U.S. at 256-58; see also Lingle, 486 U.S. at 407 (describing the same standard in the LMRA § 301 context).

         While the L&I proceeding was ongoing, the Airline was in the midst of federal litigation against L&I officials to enjoin it. That federal litigation, the genesis of the present appeal, asserted that Masserant's state law claim was so bound up in a dispute over the terms of the CBA as to be preempted under the Railway Labor Act.

         Masserant was not a party to the federal action, but her Union intervened. In support of its intervention motion, the Union noted that if WFCA claims such as Masserant's were to be treated as CBA disputes, it would be largely the Union, rather than individual workers, that would have responsibility for pursuing those disputes through grievance and arbitration.[3] See Int'l Bhd. of Elec. Workers v. Foust, 442 U.S. 42, 49-52 (1979).

         The district court concluded that Masserant's WFCA claim was unrelated to any dispute over the meaning of the CBA. It was common ground among the parties that Masserant had banked vacation days but was not permitted, under the terms of the CBA, to take them early for her son's medical care. The question was therefore purely one of state law - whether banked, prescheduled vacation days were subject to the state's nonnegotiable right to use accrued paid leave for family medical purposes. The Airline itself framed the inquiry in these terms at the L&I proceeding, arguing that "Masserant correctly sets out the approach outlined by the CBA and Alaska [Airlines] policy, but is wrong in her WFCA analysis." (Emphasis added).

         Relying on a long line of RLA and LMRA § 301 cases from this circuit and the Supreme Court, the district court concluded that referring to undisputed CBA provisions in the course of adjudicating a state law cause of action was not enough to trigger RLA preemption. See Livadas v. Bradshaw, 512 U.S. 107, 124-25 (1994); Lingle, 486 U.S. at 407; Burnside, 491 F.3d at 1060. The court therefore denied the Airline's motion for summary judgment and granted the defendants' and Union's cross-motions.

         On appeal, the Airline renews its argument that the RLA preempts Masserant's WFCA claim. A divided panel of this court agreed. The panel majority acknowledged that the terms of the CBA were undisputed. Alaska Airlines Inc. v. Schurke, 846 F.3d 1081, 1093 (9th Cir. 2017). But it held the state law cause of action nonetheless preempted "because the right to take paid leave arises solely from the collective bargaining agreement." Id. The panel majority reasoned that the WFCA "only applies if the employee has a right conferred by the collective bargaining agreement, so the state right is intertwined with . . . the collective bargaining agreement." Id.[4] A majority of active, nonrecused judges voted for en banc rehearing.

         We review de novo the district court's conclusion that RLA preemption does not apply. Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 689 (9th Cir. 2001) (en banc), and affirm the judgment of the district court. Under both the RLA and LMRA § 301, federal preemption extends no further than necessary to preserve the role of grievance and arbitration, and the application of federal labor law, in resolving CBA disputes. That a state law cause of action is conditioned on some term or condition of employment that was collectively bargained, rather than unilaterally established by the employer, does not itself create a CBA dispute.

         II

         We begin by reviewing the language of the RLA and the long line of cases explaining the purpose and scope of RLA and LMRA § 301 preemption.

         A

         The RLA creates "a comprehensive framework for resolving labor disputes" in the rail and airline industries. Norris, 512 U.S. at 252. Within this framework, labor disputes are first categorized as "representation," "major," or "minor," according to their subject matter, [5] then assigned to a corresponding dispute-resolution mechanism. See W. Airlines, Inc. v. Int'l Bhd. of Teamsters, 480 U.S. 1301, 1302-03 (1987) (O'Connor, J., in chambers).

         "Representation" disputes concern the scope of the bargaining unit and the identity of the bargaining representative. Id. at 1302. Under section 2, Ninth, of the RLA, representation disputes must be resolved by the National Mediation Board. Id. at 1302-03; see also 45 U.S.C. §§ 152, 181.

         "Major" disputes are those "concerning rates of pay, rules, or working conditions." 45 U.S.C. § 151a; Consol. Rail Corp. v. Ry. Labor Execs.' Ass'n (Conrail), 491 U.S. 299, 302 (1989). "They arise where there is no [CBA] or where it is sought to change the terms of [an existing] one." Conrail, 491 U.S. at 302 (citation omitted). Major disputes must be resolved through an extensive bargaining, mediation, and noncompulsory arbitration process, in which both sides are subject to certain duties enforceable in federal court. 45 U.S.C. § 152, First, Seventh; id. §§ 156, 181; Conrail, 491 U.S. at 302.

         Finally, "minor" disputes are those "growing out of grievances or . . . the interpretation or application of agreements covering rates of pay, rules, or working conditions." 45 U.S.C. § 151a; Conrail, 491 U.S. at 303. They are, in other words, CBA disputes, for which the term "grievance" is often used as a generic descriptor. Norris, 512 U.S. at 255; see also Conrail, 491 U.S. at 302 ("[M]ajor disputes seek to create contractual rights, minor disputes to enforce them."). Minor disputes must be addressed through the CBA's established grievance mechanism, and then, if necessary, arbitrated before the appropriate adjustment board.[6] 45 U.S.C. § 152, Sixth; id. §§ 153, 184.

         Like the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 151-69, and the LMRA, 29 U.S.C. §§ 141-97, the RLA contains no express preemption language. See Air Transp. Ass'n of Am. v. City & County of San Francisco, 266 F.3d 1064, 1076 (9th Cir. 2001). Preemption is instead implied as necessary to give effect to congressional intent, Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208-11 (1985), subject to the critical caveat that the "[p]re-emption of employment standards within the traditional police power of the State should not be lightly inferred," Norris, 512 U.S. at 252 (internal quotation marks omitted).

         Congress's intent in passing the RLA was to promote industrial peace by providing a "comprehensive" scheme for resolving labor disputes "through negotiation rather than industrial strife." Norris, 512 U.S. at 252; Bowen v. U.S. Postal Serv., 459 U.S. 212, 225 (1983); see 45 U.S.C. § 151a. As in the LMRA context, [7] the arbitration of CBA disputes in RLA-covered industries - "minor disputes," in RLA terms - is an essential component of federal labor policy. See United Steelworkers v. Warrior & Gulf Navigation Co. (Steelworkers II), 363 U.S. 574, 578 (1960). The reasons are threefold.

         First, a collective bargaining agreement is more than just a contract; it is "an effort to erect a system of industrial self-government." Id. at 580; see also California v. Taylor, 353 U.S. 553, 565-66 (1957). A CBA sets forth "a generalized code to govern . . . the whole employment relationship," including situations "which the draftsmen [could not] wholly anticipate." Steelworkers II, 363 U.S. at 578-79. Accordingly, CBA dispute resolution is itself a part of a "continuous collective bargaining process," United Steelworkers v. Enter. Wheel & Car Corp. (Steelworkers III), 363 U.S. 593, 596 (1960) - "a vehicle by which meaning and content are given" to the labor agreement, Steelworkers II, 363 U.S. at 581. To set aside the parties' grievance and arbitration process is to undo an integral part of the workplace self-governance scheme. Id. at 578; Bhd. of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 378 (1969); see also Conrail, 491 U.S. at 310-11.

         Second, and relatedly, a CBA is not strictly limited to its terms, but gives rise to a broader common law of its own - "the common law of a particular industry or of a particular plant." Steelworkers II, 363 U.S. at 579. The resolution of CBA disputes may therefore "assume proportions of which judges are ignorant." United Steelworkers v. Am. Mfg. Co. (Steelworkers I), 363 U.S. 564, 567 (1960); see also Conrail, 491 U.S. at 311-12. For example, the resolution of CBA disputes may be informed by ad hoc considerations - "the effect upon productivity of a particular result, its consequence to the morale of the shop, . . . whether tensions will be heightened or diminished," Steelworkers II, 363 U.S. at 582 - which a judge may lack the expertise properly to balance.

         Third, grievance and arbitration are believed to provide certain procedural benefits, including a more "prompt and orderly settlement" of CBA disputes than that offered by the ordinary judicial process. 45 U.S.C. § 151a. In committing CBA disputes to an adjustment board, a worker "receive[s] a final administrative answer to his dispute; and if he wins, he will be spared the expense and effort of time-consuming appeals which he may be less able to bear than the [employer]." Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 94 (1978) (per curiam). The intended result is to prevent an "[a]ccumulation of [minor] disputes," Bhd. of R.R. Trainmen v. Chi. River & Ind. R.R. Co., 353 U.S. 30, 40 (1957), and so to "diminish the risk of interruptions in commerce." Conrail, 491 U.S. at 311.

         To account for these considerations, the Supreme Court has held that RLA and LMRA grievance and arbitration systems must be used for claims arising under the CBA. See Air Transp. Ass'n, 266 F.3d at 1076 (citing Taylor, 353 U.S. at 559-61). Minor disputes under the RLA - those disputes concerned with "duties and rights created or defined by" the collective bargaining agreement, Norris, 512 U.S. at 258 - "must be resolved only through the RLA mechanisms." Id. at 253; see also Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 563 (1987). To the extent state law would also create a cause of action for a minor dispute, and thereby "permit[] an individual to sidestep available grievance procedures," the state law action is preempted. Lingle, 486 U.S. at 411.

         Such limited preemption has other benefits as well. In particular, it ensures that CBA disputes are governed by a uniform set of principles informed by federal labor law and the industrial common law applicable to the agreement, id. at 405-06, rather than "conflicting substantive interpretation under competing [state] legal systems." Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 104 (1962); see also Republic Steel Corp. v. Maddox, 379 U.S. 650, 654-57 (1965); Int'l Ass'n of Machinists v. Cent. Airlines, Inc., 372 U.S. 682, 691-95 & nn. 17-18 (1963). "[T]he application of state law" to CBA disputes "might lead to inconsistent results since there could be as many state-law principles as there are States." Lingle, 486 U.S. at 406; see also Norris, 512 U.S. at 263 & n.9.

         At the same time - and of critical importance here - the RLA does not provide for, nor does it manifest any interest in, national or systemwide uniformity in substantive labor rights.[8] See Buell, 480 U.S. at 565. "[T]he enactment by Congress of the Railway Labor Act was not a pre-emption of the field of regulating working conditions themselves . . . ." Terminal R.R. Ass'n of St. Louis v. Bhd. of R.R. Trainmen, 318 U.S. 1, 7 (1943). Setting minimum wages, regulating work hours and pay periods, requiring paid and unpaid leave, protecting worker safety, prohibiting discrimination in employment, and establishing other worker rights remains well within the traditional police power of the states, and will naturally result in labor standards that affect workers differently from one jurisdiction to the next, even when those workers fall under a single labor agreement. See Norris, 512 U.S. at 262-63.

         Stated differently, it is not a concern of the RLA that the employer's operations may be affected by its obligation to comply with a different set of substantive state law rights in each jurisdiction. The purpose of RLA minor dispute preemption is to reduce commercial disruption by "facilitat[ing] collective bargaining and . . . achiev[ing] industrial peace," Foust, 442 U.S. at 47, not to reduce burdens on an employer by federalizing all of labor and employment law so as to preempt independent state law rights. For RLA-covered workers, as for LMRA-covered workers, "it would be inconsistent with congressional intent . . . to preempt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract." Lueck, 471 U.S. at 212.

         It follows from the RLA minor dispute provision's focus on grieving and arbitrating CBA disputes that Congress did not intend to preempt state law claims simply because they in some respect implicate CBA provisions, Lueck, 471 U.S. at 211, make reference to a CBA-defined right, Livadas, 512 U.S. at 125, or create a state law cause of action factually "parallel" to a grievable claim, Lingle, 486 U.S. at 408-10. Rather, "an application of state law is pre-empted . . . only if such application requires the interpretation of a collective-bargaining agreement."[9] Id. at 413. In sum, RLA minor dispute preemption and LMRA § 301 preemption protect the primacy of grievance and arbitration as the forum for resolving CBA disputes and the substantive supremacy of federal law within that forum, nothing more. Norris, 512 U.S. at 262-63.

         B

         In evaluating RLA or LMRA § 301 preemption, we are guided by the principle that if a state law claim "is either grounded in the provisions of the labor contract or requires interpretation of it," the dispute must be resolved through grievance and arbitration.[10] Burnside, 491 F.3d at 1059. The line "between preempted claims and those that survive" is not one "that lends itself to analytical precision." Cramer, 255 F.3d at 691. This circuit, however, has distilled the Supreme Court's RLA and LMRA § 301 case law into a two-part inquiry into the nature of a plaintiff's claim. Matson, 840 F.3d at 1132-33; Kobold, 832 F.3d at 1032-34; Burnside, 491 F.3d at 1059-60.[11]

         First, to determine whether a particular right is grounded in a CBA, we evaluate the "legal character" of the claim by asking whether it seeks purely to vindicate a right or duty created by the CBA itself. Livadas, 512 U.S. at 123. If a claim arises entirely from a right or duty of the CBA - for example, a claim for violation of the labor agreement, whether sounding in contract or in tort, [12] Lueck, 471 U.S. at 211 - it is, in effect, a CBA dispute in state law garb, and is preempted. Livadas, 512 U.S. at 122-23. In such cases, the CBA is the "only source" of the right the plaintiff seeks to vindicate. Norris, 512 U.S. at 258 (quoting Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320, 324 (1972)). There is thus no part of the claim that "do[es] not require construing [the] collective-bargaining agreement[]," Lingle, 486 U.S. at 411, and as to which litigation in court, rather than though the grievance and arbitration system, would be appropriate. See Steelworkers I, 363 U.S. at 568. For the same reason, there is no part of the claim in which the uniform body of federal labor law does not control the resolution of the parties' dispute. See Maddox, 379 U.S. at 654-57; Cent. Airlines, 372 U.S. at 691-95 & nn. 17-18; Lucas Flour, 369 U.S. at 104.

         By contrast, claims are not simply CBA disputes by another name, and so are not preempted under this first step, if they just refer to a CBA-defined right, Livadas, 512 U.S. at 125; rely in part on a CBA's terms of employment, Lueck, 471 U.S. at 211; run parallel to a CBA violation, Lingle, 486 U.S. at 408-10; or invite use of the CBA as a defense, Caterpillar Inc. v. Williams, 482 U.S. 386, 398 (1987). See also Kobold, 832 F.3d at 1032; Burnside, 491 F.3d at 1060.

         Second, if a right is not grounded in a CBA in the sense just explained, we ask whether litigating the state law claim nonetheless requires interpretation of a CBA, such that resolving the entire claim in court threatens the proper role of grievance and arbitration. Norris, 512 U.S. at 262; Livadas, 512 U.S. at 124-25. "Interpretation" is construed narrowly; "it means something more than 'consider,' 'refer to,' or 'apply.'" Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1108 (9th Cir. 2000).[13] Accordingly, at this second step of an RLA or LMRA § 301 preemption analysis, claims are only preempted to the extent there is an active dispute over "the meaning of contract terms." Livadas, 512 U.S. at 124. "[A] hypothetical connection between the claim and the terms of the CBA is not enough to preempt the claim . . . ." Cramer, 255 F.3d at 691 (emphasis added). Nor is it enough that resolving the state law claim requires a court to refer to the CBA and apply its plain or undisputed language - for example, "to discern that none of its terms is reasonably in dispute," id. at 692 (quoting Livadas, 512 U.S. at 125); to identify "bargained-for wage rates in computing [a] penalty," Livadas, 512 U.S. at 125; or "to determine whether [the CBA] contains a clear and unmistakable waiver of state law rights," Cramer, 255 F.3d at 692. See also Kobold, 832 F.3d at 1033.

         Notably, the result of preemption at the second step is generally not the extinguishment of the state law claim. Kobold, 832 F.3d at 1033-34. As previously explained, neither the RLA nor the LMRA allows for the impairment of worker rights that would exist in the absence of a CBA dispute. Norris, 512 U.S. at 256, 262-63. It is contrary to the statutes' scope to allow "the parties to a collective-bargaining agreement . . . to contract for what is illegal under state law," Lueck, 471 U.S. at 212, or to "penalize[] workers who have chosen to join a union by preventing them from benefiting from state labor regulations imposing minimal standards on nonunion employers." Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756 (1985); see also 45 U.S.C. § 151a (stating, as a purpose of the RLA, "to forbid any limitation upon freedom of association among employees"). As a result, if, at the second stage of the analysis, a state law claim depends on a dispute over the meaning of a CBA, it is only "to that degree preempted." Kobold, 832 F.3d at 1036; see also Matson, 840 F.3d at 1135. That is, state law claims are preempted by the RLA or LMRA § 301 "only insofar as resolution of the state-law claim requires the interpretation of a collective-bargaining agreement."[14] Lingle, 486 U.S. at 409 n.8; see also Livadas, 512 U.S. at 124 n.18.

         As this two-step preemption inquiry suggests, RLA and LMRA § 301 preemption differ from typical conflict preemption because they are not driven by substantive conflicts in law. Rather, RLA and LMRA § 301 preemption are grounded in the need to protect the proper forum for resolving certain kinds of disputes (and, by extension, the substantive law applied thereto). RLA and LMRA § 301 preemption are, in effect, a kind of "forum" preemption, resembling the doctrine of primary jurisdiction or the reference of disputes to arbitration under the Federal Arbitration Act, 9 U.S.C. §§ 1-16.

         In considering primary jurisdiction, for example, a court's goal is not to ascertain the substance of applicable law, but to ensure that "an administrative body having regulatory authority" that "requires expertise or uniformity in administration" is permitted to resolve the issues that Congress committed to it. Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 760 (9th Cir. 2015) (internal quotation marks omitted). Similarly, in the arbitrability context, a court's responsibility is to ascertain the subject matter or posture of the dispute to determine the proper forum for resolving it. See First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943 (1995). RLA and LMRA § 301 preemption are analogous. The court's role is not to resolve the labor dispute, but to protect the role of grievance and arbitration as a forum for doing so to the extent that forum's unique area of competency - CBA disputes - is at issue.[15]

         The parallels are more than superficial. For one, the result of RLA and LMRA § 301 forum preemption is not to preempt state laws as such, but to assure that discrete claims are decided in the appropriate forum. Caterpillar, 482 U.S. at 394 ("Section 301 governs claims . . . ."); see also, e.g., Norris, 512 U.S. at 266 ("[R]espondent's claims for discharge in violation of public policy and in violation of the Hawaii Whistleblower Protection Act are not pre-empted by the RLA . . . ." (emphasis added)); Int'l Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 859 (1987) ("[W]e must determine if respondent's claim is sufficiently independent of the collective-bargaining agreement . . . ." (emphasis added)); Humble v. Boeing Co., 305 F.3d 1004, 1008 (9th Cir. 2002) ("[T]he plaintiff's claim is the touchstone for the preemption analysis . . . ." (emphasis added)). The primary point of reference in the preemption analysis is therefore not state law writ large - no state law is "challenged" under RLA or LMRA § 301 preemption, nor is any state law at risk of wholesale invalidation - but the plaintiff's pleading. See Espinal v. Nw. Airlines, 90 F.3d 1452, 1456 (9th Cir. 1996) ("Where a plaintiff contends that an employer's actions violated rights protected by the CBA, there is a minor dispute subject to RLA preemption. By contrast, where a plaintiff contends that an employer's actions violated a state-law obligation, wholly independent of its obligations under the CBA, there is no preemption." (emphases added) (citation omitted)).[16]

         Furthermore, the RLA and LMRA § 301 forum preemption inquiry is not an inquiry into the merits of a claim; it is an inquiry into the claim's "legal character" - whatever its merits - so as to ensure it is decided in the proper forum. Livadas, 512 U.S. at 123-24. In conducting the preemption analysis, we may no more invade the province of the state court to resolve a state law claim over which we lack jurisdiction than we may invade the province of the labor arbitrator to construe the CBA.[17] See Steelworkers III, 363 U.S. at 599. Our only job is to decide whether, as pleaded, the claim "in this case is 'independent' of the [CBA] in the sense of 'independent' that matters for . . . pre-emption purposes: resolution of the state-law claim does not require construing the collective-bargaining agreement." Lingle, 486 U.S. at 407.

         The distinction between RLA and LMRA § 301 preemption (as an inquiry into the proper forum for resolving a claim) and the more common application of conflict preemption (as an inquiry into substantive conflicts between state and federal law) is widely recognized across the circuits. See, e.g., Smith v. Am. Airlines, Inc., 414 F.3d 949, 952 (8th Cir. 2005) ("[M]inor disputes are subject to mandatory arbitration before an adjustment board which has primary jurisdiction to construe the collective bargaining agreement."); Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 276 (2d Cir. 2005) ("[P]rimary jurisdiction over minor disputes under the RLA . . . exists solely in the adjustment boards established pursuant to [the RLA]."); Renneisen v. Am. Airlines, Inc., 990 F.2d 918, 923 (7th Cir. 1993) ("[T]he RLA mandates a statutory forum for plaintiffs' claims."); Davies v. Am. Airlines, Inc., 971 F.2d 463, 465 n.1 (10th Cir. 1992) ("By [RLA] 'preemption' we refer to forum preemption."); Ry. Labor Execs. Ass'n v. Pittsburgh & Lake Erie R.R. Co., 858 F.2d 936, 944 (3d Cir. 1988) ("[F]orum preemption under the RLA may ultimately affect the litigation of this case."); Miller v. Norfolk & W. Ry. Co., 834 F.2d 556, 561 (6th Cir. 1987) ("[A] state claim which is preempted by the RLA, as by the NLRA under Garmon, is instead preempted under a choice of forum analysis.").

         The Supreme Court further clarified the distinction in Livadas. There, a worker subject to a CBA filed a complaint with the California Division of Labor Standards Enforcement ("DLSE"), seeking damages under a state statute requiring the immediate payment of past wages upon termination. Livadas, 512 U.S. at 111-12. DLSE refused to consider the complaint, citing the worker's CBA. Id. at 112-13. At the time, DLSE had a policy of refusing to consider state law labor complaints that involved a CBA in some way. Id. at 112-14, 121.

         In deciding against DLSE, the Supreme Court made two distinct observations about two distinct preemption doctrines. First, the Supreme Court noted that nothing about the worker's claim implicated LMRA § 301 preemption. Although the worker was owed wages based on having worked under a CBA, and although the CBA determined the amount of those wages, the CBA did not create the right to immediate payment on termination. Id. at 124-25 ("The only issue raised by Livadas's claim . . . was a question of state law . . . ."). Nor was any disputed term of the CBA implicated in the adjudication of that state law right. Id. at 125 (observing that, although CBA-defined wages were used to calculate damages under the Labor Code, "[t]here is no indication that there was a 'dispute' in this case over the amount" of wages owed under the CBA). The claim was therefore well within DLSE's authority to adjudicate.

         Second, and separately, the Supreme Court concluded that DLSE's policy of refusing to consider state law complaints involving a CBA was subject to substantive conflict preemption, as the policy uniquely disfavored CBA-covered workers, and thus interfered with substantive federal rights under the NLRA. 29 U.S.C. § 157; Livadas, 512 U.S. at 116-17 & n.11. The NLRA protects the right "to bargain collectively through representatives of [workers'] own choosing." 29 U.S.C. § 157. Accordingly, DLSE's policy was preempted substantively to the extent there existed, "rooted in the text of [the NLRA]," a right to bargain without the state imposing penalties on workers if they ultimately reached and became bound by a labor agreement.[18] Livadas, 512 U.S. at 117 n.11.

         The differences between LMRA § 301 preemption (and so RLA preemption) and ordinary, substantive conflict preemption, as the Court employed the doctrines in Livadas, are significant. With respect to LMRA § 301 preemption, the Court considered the worker's claim based on her complaint before DLSE, concluded the claim was not extinguished, and noted that a different result could obtain in a differently pleaded claim under the same state statute. Id. at 121-25 & n.19. The focus was thus the plaintiff's pleading, the character of the claim, and the proper forum to resolve that claim. With respect to substantive conflict preemption under the NLRA, the Court looked at the state law as the state applied it, concluded that the rule of law applied by the state was substantively in conflict with federal law, and invalidated it wholesale. Id. at 128-32. The focus was thus the meaning of state law and its consistency with federal law. The two analyses - procedural and substantive - were not conflated in Livadas and should not be conflated here. See also Air Transp. Ass'n, 266 F.3d at 1076 (distinguishing RLA minor dispute preemption from "substantive" conflict preemption as applied in the RLA context, and observing that the latter "is analogous to Machinists preemption under the NLRA").

         It is perhaps because of the risk of such confusion that labor law preemption is rarely described as an undifferentiated application of the "field" or "conflict" preemption that governs in other substantive areas, see Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372-73 & n.6 (2000), but rather by identifying the particular species of labor preemption - Garmon preemption, [19]Machinists preemption, [20] RLA or LMRA § 301 preemption - relevant to the parties' dispute, based on the federal labor law interests ostensibly under threat in a given case. See, e.g., Bldg. & Const. Trades Council of Metro. Dist. v. Associated Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218, 224 (1993); Retail Prop. Tr. v. United Bhd. of Carpenters & Joiners, 768 F.3d 938, 951-55 (9th Cir. 2014). But as in Livadas, what matters in a preemption analysis is not the nomenclature; what matters is "[t]he purpose of Congress," which is "the ultimate touchstone." Lueck, 471 U.S. at 208 (quoting Malone v. White Motor Corp., 435 U.S. 497, 504 (1978)). In the RLA and LMRA § 301 context, the "purpose of Congress" is to protect the role of grievance and arbitration and of federal labor law in resolving CBA disputes, not to alter or displace state law labor rights. Norris, 512 U.S. at 256; Lingle, 486 U.S. at 408-09; Maddox, 379 U.S. at 654-57; Bhd. of R.R. Trainmen, Enter. Lodge, No. 27 v. Toledo, Peoria & W. R.R., 321 U.S. 50, 58 (1944). The preemption analysis is targeted accordingly - not to the substance of state law or the merits of the parties' dispute, but to the "legal character" of the claim asserted. Livadas, 512 U.S. at 123. To the extent a plaintiff's state law claim can be resolved without infringing on the role of grievance and arbitration, there is no "conflict" to speak of, and the preemption analysis ends.

         C

         Having identified the correct approach to RLA preemption, applying it in this case is straightforward.

         First, Masserant's claim does not arise entirely from the CBA. Masserant has alleged a violation of the WFCA's independent state law right to use banked vacation days. Her view of the WFCA, and that of the L&I, is that the statute's "choice of leave" exception applies to banked vacation already earned, even if under workplace practices (whether CBA-governed or not) prescheduled vacation may be rescheduled or used for exigencies only under specified circumstances. Unsurprisingly, the Airline disagrees with this interpretation of the WFCA. And after further administrative or state court review, the Airline may yet prevail in its view of Washington law. See Wash. Admin. Code ยง 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 ...


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