Alaska Airlines Inc. v. Schurke

• Citation: 846 F.3d 1081
• Decision Date: 25 January 2017
• Docket Number: No. 13-35574,13-35574
• 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: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

846 F.3d 1081

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 May 6, 2015 Seattle, Washington

Filed January 25, 2017

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

James Paul Mills (argued), Tacoma, Washington, for Defendants-Appellees.

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

Before: J. Clifford Wallace, Andrew J. Kleinfeld, and Morgan Christen, Circuit Judges.

Dissent by Judge Christen

OPINION

KLEINFELD, Senior Circuit Judge:

This is a Railway Labor Act preemption case. We decide, not the merits of the case, but which entity should decide upon the merits, the State of Washington, or the System Adjustment Board established pursuant to a collective bargaining agreement.

Facts.

Though this became a dispute between the airline and a state agency and union, it arises out of a dispute between a flight attendant and the airline about her sick leave. The flight attendant, Laura Masserant, called in sick in May, to care for her son who was ill. She proposed to take two days off as sick leave to care for him. But she had used up all her sick leave. She had vacation leave coming to her, but vacation leave is scheduled the October before the year in which it is to be used. Masserant had cashed out most of her vacation leave, and had scheduled all her remaining vacation leave for December, so she had none available to her in May. If Masserant had called in sick, despite having used up all her sick leave, she would have accumulated "points." Under the collective bargaining agreement between her union and the airline, if a flight attendant calls in sick too many times after using up all her sick leave, accumulating too many points, she is subject to graduated discipline—counseling, warning, and for enough points, termination.

Masserant claimed an entitlement to use her December vacation leave for her child's illness without being charged points, under the Washington Family Care Act. That state statute does not entitle an employee to any leave. But if the employee is entitled to paid time off, the employee is entitled to use it for a sick child, not just for her own illness or vacation.¹

Masserant and the airline disagreed on how to interpret her entitlement. They do not dispute that she was entitled to seven days of vacation leave. But she had scheduled it for December. The airline claimed that she could only use it in December, but Masserant claimed that under the Washington statute, she was entitled to use it in May for her child's illness. Masserant would be entitled to more sick leave in June, and the airline retroactively liberalized its policy so that she could use it in May, but even with that, she still did not have enough sick leave to cover the time she off she needed in May. The state agency that administers the Washington statute agrees with Masserant's interpretation of the Washington statute.

The Washington statute does not create an entitlement to paid time off, sick leave or otherwise. It limits an employee to whatever her entitlement may be "under the terms of a collective bargaining agreement or employer policy." And it requires that "[t]he 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."

The Alaska Airlines-Associated Flight Attendants collective bargaining agreement entitles employees to use available leave, however denoted, to take care of a sick child.² It expressly provides that "sick leave" is usable for illness of a family member, not just the employee, and that availability of leave to care for family members is as broad as "the most liberal of the States in which flight attendants are domiciled."³

The dispute between the parties is not about whether Masserant could take her leave, but when. The collective bargaining agreement is stuffed full of limitations to assure that when a plane is being prepared for takeoff, the requisite number of flight attendants are on board. The important part, for Masserant's purposes, are the provisions on scheduling use of vacation leave. Flight attendants get 14 days after their first year, 21 days after five years, 28 days after 10 years, and 35 days after 18 years. The airline has to post a list of available vacation times by October 1 of the preceding year. Flight attendants have 15 days to sign up, and vacation periods are granted on a seniority basis. Flight attendants may trade vacation days, within stated limits.

What they cannot do is fail, without notice, to show up.⁴ They have to call in sick a certain number of hours prior to departure of their scheduled flight,⁵ and not do it too often or else suffer "points."⁶ There is graduated discipline if too many points accumulate. "Points" are deleted for subsequent periods of proper attendance,⁷ and no action is taken for the first few points,⁸ but Masserant's available and unused sick leave would not have covered her for the two day absence she sought in May. Masserant could have called in sick despite lacking available sick leave, three hours before each flight for which she was scheduled, but apparently the airline would have assessed points against her for absence without available leave. She wanted to take two days from the seven days of vacation leave she had scheduled in December, to avoid points. But the airline would not permit her to take her December vacation time in May. Vacation leave is "banked," that is, treated as an entitlement, on January 1, and can be exchanged for cash in advance of the scheduled vacation, but a flight attendant cannot take the time off in advance of the time slot he or she scheduled the previous autumn. Masserant had taken four days of vacation leave and cashed out 21 days when her child got sick, leaving her only the seven days she had scheduled the previous fall for vacation in December. She claimed entitlement to take it in May instead, under the Washington statute.

As a practical matter, Masserant may be entitled to take time off to care for her sick child without penalty even though she has no sick leave available, because for a flight attendant's first 4 1/2 points, there is no penalty. If a flight attendant gets too many points, they can be reduced by good attendance the next year.

Masserant and her union, the Associated Flight Attendants, disagreed with the airline's position. But instead of grieving it under the collective bargaining agreement grievance procedure, they filed an administrative complaint with the State of Washington Department of Labor and Industries. The Department determined that Masserant was entitled to use her December vacation leave to care for her child in May. The airline was fined $200 for violating the statute. The airline, Masserant, and the union have agreed to delay state appellate and other proceedings so that this Railway Labor Act preemption dispute may be adjudicated. The district court granted summary judgment against the airline's preemption claim. We now review the district court decision de novo.⁹

Some of the relevant provisions in the collective bargaining agreement and employer customs are not entirely clear cut. A provision says that "no attendance points are assessed for an absence called in for a sick child," but it is not obvious how far this reaches. Though sick leave can clearly be used to care for a sick child, no such explicit provision is made for vacation leave and the evidence suggests that vacation leave cannot be so mixed. A flight attendant can trade vacation days with another flight attendant, subject to a deadline and approval. And a flight attendant can accumulate up to 4 1/2 points for absenteeism with no disciplinary action, and subtraction of 2 points per quarter thereafter for quarters in which there are no chargeable occurrences, despite the absence of available leave.

Analysis.

The issue before us is not whether Masserant is entitled to use her vacation leave, scheduled for December, in May, to care for her sick child. Though that is what the case is all about, it is not the issue posed for us. The issue before us is limited to Railways Labor Act preemption, that is, whether the state administrative board or the collective bargaining agreement grievance procedure ought to decide whether Masserant is entitled so to use her December vacation leave in May. This is one of those cases to which the Thomas Reed Powell line applies, "If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind."¹⁰

The most important fact about this case is the circularity between the Washington statute and the collective bargaining agreement. The statute makes the employee's entitlement to leave (as opposed to what the leave may be used for) dependent on the collective bargaining agreement. And the collective bargaining agreement expands use of leave to whatever the state statute says.¹¹ The point of the statute appears to be that, if an employee is entitled to take paid leave, whether denominated sick leave or any other kind, then the leave may be used to care for a sick relative, not just the employee himself. But entitlement to leave, under the statute, is to be defined by the collective bargaining...