Alaska Airlines Inc. v. Schurke

• Decision Date: 01 August 2018
• Docket Number: No. 13-35574,13-35574
• Citation: 898 F.3d 904
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

898 F.3d 904

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.

No. 13-35574

United States Court of Appeals, Ninth Circuit.

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

Filed August 1, 2018

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.

BERZON, Circuit Judge:

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

The Supreme Court has repeatedly instructed that RLA preemption—like the "virtually identical" preemption under section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185¹ —extends only as far as necessary to protect the role of labor arbitration in resolving CBA disputes. Hawaiian Airlines, Inc. v. Norris , 512 U.S. 246, 262–64, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994) ; Lingle v. Norge Div. of Magic Chef, Inc. , 486 U.S. 399, 413, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). Consistent with 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, 114 S.Ct. 2239 ; see also Lingle , 486 U.S. at 407, 108 S.Ct. 1877 (describing the same standard in the LMRA § 301 context).

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

Masserant was not a party to the federal action, but her Union intervened. In support of its intervention motion, the Union noted that if WFCA claims such as Masserant's were to be treated as CBA disputes, it would be largely the Union, rather than individual workers, that would have responsibility for pursuing those disputes through grievance and arbitration.³ See Int'l Bhd. of Elec. Workers v. Foust , 442 U.S. 42, 49–52, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979).

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

Relying on a long line of RLA and LMRA § 301 cases from this circuit and the Supreme Court, the district court concluded that referring to undisputed CBA provisions in the course of adjudicating a state law cause of action was not enough to trigger RLA preemption. See Livadas v. Bradshaw , 512 U.S. 107, 124–25, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994) ; Lingle , 486 U.S. at 407, 108 S.Ct. 1877 ; Burnside , 491 F.3d at 1060. The court therefore denied the Airline's motion for summary judgment and granted the defendants' and Union's cross-motions.

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