Alaska Airlines Inc. v. Judy Schurke, et al

Filing

FILED OPINION (J. CLIFFORD WALLACE, ANDREW J. KLEINFELD and MORGAN B. CHRISTEN) REVERSED AND REMANDED. Judge: AJK Authoring, Judge: MBC Dissenting. FILED AND ENTERED JUDGMENT. [10278766]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ALASKA AIRLINES INC., an
Alaska corporation,
Plaintiff-Appellant,

No. 13-35574
D.C. No.
2:11-cv-00616-JLR

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,

OPINION

ASSOCIATION OF FLIGHT
ATTENDANTS - COMMUNICATION
WORKERS OF AMERICA, AFLCIO,
Intervenor-Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding

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ALASKA AIRLINES V. SCHURKE
Argued and Submitted May 6, 2015
Seattle, Washington
Filed January 25, 2017
Before: J. Clifford Wallace, Andrew J. Kleinfeld,
and Morgan Christen, Circuit Judges.
Opinion by Judge Kleinfeld;
Dissent by Judge Christen

SUMMARY*

Labor Law
The panel reversed the district court’s summary judgment
in favor of the defendants in a labor law suit brought by
Alaska Airlines, Inc.
A flight attendant claimed entitlement under the
Washington Family Care Act to reschedule leave to care for
her child who was ill. She and her union filed an
administrative complaint with the State of Washington
Department of Labor and Industries, which determined that
the flight attendant was entitled to use her December vacation
leave to care for her child in May.
The panel held that the Railway Labor Act preempted the
flight attendant’s claim under the Washington Family Care
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Act, which provides that entitlement to leave is to be defined
by an employee’s collective bargaining agreement. The panel
concluded that the state right and the collective bargaining
agreement were inextricably intertwined. Under the Railway
Labor Act, the claim was a “minor dispute” about defining
the rights guaranteed by the flight attendant’s collective
bargaining agreement. She therefore was required to use the
collective bargaining agreement grievance procedure to
resolve her claim.
Dissenting, Judge Christen wrote that the flight
attendant’s claim was not preempted because the right she
asserted arose from the Washington Family Care Act, if it
existed at all, and did not depend upon the collective
bargaining agreement.

COUNSEL
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.

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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

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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

1

Wash. Rev. Code § 49.12.270(1):
If, under the terms of a collective bargaining agreement
or employer policy applicable to an employee, the
employee is entitled to sick leave or other paid time off,
then an employer shall allow an employee to use any or
all of the employee’s choice of sick leave or other paid
time off to care for:
(a) A child of the employee with a health condition that
requires treatment or supervision; or
(b) a spouse, parent, parent-in-law, or grandparent of
the employee who has a serious health condition or an
emergency condition.
An employee may not take advance leave until it has
been earned. The employee taking leave under the
circumstances described in this section must comply
with the terms of the collective bargaining agreement or
employer policy applicable to the leave, except for any
terms relating to the choice of leave.

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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

2

“Sick leave may be used . . . pursuant to applicable State law and/or
Company policy. . . . Pursuant to Company policy, no attendance points
are assessed for an absence called in for a sick child (zero points per
day).”
3

“Whenever the new collective-bargaining refers to a sick child, it is
understood that this is a placeholder for ‘family member.’ With the
Association’s agreement, the Company will apply the most liberal of the
laws of the states in which Flight Attendants are domiciled in determining
the appropriate definition of ‘family member.’ When this definition is
determined, including any subsequent amendments pursuant to changes

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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

in law or in the interpretation fo the law, the company will publish the
definition and distribute it to the Flight Attendants.”
4

“In all cases of absence, a Flight Attendant will be required to call
the designated Company representative.”
5

“Sick calls must be made to the designated Company representative
at least two (2) hours prior to check-in (3 hours prior to scheduled
departure).”
6

For example, a “No Show” equals 2 ½ points, a “Reported Illness
Using Quarterly Point Reduction” equals 0 points, a “Reported illness
after or without Using Quarterly Point Reduction” equals between ½ and
2 ½ points, and an “Emergency Drop” equals ½ point.

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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 ½ points, there is no penalty. If a flight

7

“For each calendar quarter during which a Flight Attendant is active
for the entire quarter and has no chargeable occurrences during the entire
quarter, two (2) points will be deleted from the Flight Attendant’s
accumulated points until the total reaches zero (0). Time on leave of
absence will not be counted toward record improvement.”
8

“0 – 4 ½ [points]: No action taken.”

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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 ½ 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.
9

Espinal v. Nw. Airlines, 90 F.3d 1452, 1455 (9th Cir. 1996).

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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 agreement or
employer practice. This dependence of the Washington

10

Thurman W. Arnold, The Symbols of Government 101 (1935)
(attributed to Thomas Reed Powell).
11

“Sick leave may be used . . . pursuant to applicable State law.”

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statute on the collective bargaining agreement is established
by its command that leave “shall be governed” by the
collective bargaining agreement or employer policy.
Masserant’s claim can be resolved as a grievance under
the collective bargaining agreement. It provides that “any
controversy . . . as to the meaning of any of the terms of this
agreement” shall be presented as a grievance to a designated
individual, with that person’s decision appealable to the
Flight Attendants’ Board of Adjustment (two members
appointed by the union, two by the company) and to
mediation or arbitration (National Mediation Board under the
Railway Labor Act provides a list of seven names, and each
party strikes three). The question is not whether Masserant
and her union could proceed with the grievance procedure,
but whether the state agency is an alternative procedure
available to them despite Railway Labor Act preemption.
“The Railway Labor Act was enacted . . . [t]o avoid any
interruption to commerce or to the operation of any carrier
engaged therein.”12 The Act requires that carriers make
agreements and settle disputes with their employees to avoid
interruption to commerce.13 It covers airlines as well as
railways.14 And it includes “a mandatory system of dispute

12
Aircraft Serv. Int’l, Inc. v. Int’l Bhd. of Teamsters, 779 F.3d 1069,
1073 (9th Cir. 2015) (en banc) (quoting 45 U.S.C. § 151a) (internal
quotation marks omitted) (alternation in the original).
13

45 U.S.C. § 152, First.

14

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 248 (1994).

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resolution.”15 “Congress’s intent in the RLA [was] ‘to keep
[carriers’] labor disputes out of the courts.”16 To facilitate
this process, the RLA provides a “mandatory arbitral
mechanism to handle disputes ‘growing out of grievances or
out of the interpretation or application of agreements
concerning rates of pay, rules, or working conditions.’”17
Disputes under this regime are generally characterized as
either major or minor. “[M]ajor disputes seek to create
contractual rights, minor disputes to enforce them,”18 so
disputes about defining the rights guaranteed by a collective
bargaining agreement are minor disputes.19 Minor disputes
are preempted by the RLA and must be dealt with first
through a carrier’s internal dispute resolution process, and
then a System Adjustment Board comprised of workers and
management.20 The Act states that among its purposes are to
provide for settlement of “all” disputes about “pay, rules or
working conditions,” and “all” disputes growing out of

15

Aircraft Serv., 779 F.3d at 1073 (citing Bhd. of R.R. Trainmen v.
Chi. River & Ind. R.R., 353 U.S. 30, 40, 77 (1957) (emphasis added)).
16

Fennessy v. Southwest Airlines, 91 F.3d 1359, 1363 (9th Cir. 1996)
(emphasis in original) (quoting Lewy v. Southern Pac. Transp. Co.,
799 F.2d 1281, 1289 (9th Cir. 1986)).
17

Norris, 512 U.S. at 248 (quoting 45 U.S.C. § 153, First).

18
See Consol. Rail Corp. v. Ry. Labor Execs. Ass’n., 491 U.S. 301,
302 (1989) (quoting Elgin, Joliet & E. Ry. Co. v. Burley, 325 U.S. 711,
723 (1945)).
19

Norris, 512 U.S. at 255.

20

45 U.S.C. § 184.

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interpretation or application of agreements about “pay, rules,
or working conditions.”21
There is an exception to this broad preemption, though,
for independent state rights. Some exceptions are obvious,
such as when the state right does not concern “pay, rules or
working conditions.” But there are plenty of possible claims
that arguably overlap both collective bargaining agreement
provisions and state law. The Supreme Court appears to have
evolved from the broadest possible preemption rule toward a
more qualified rule, at least with respect to independent statecreated rights.
The seminal preemption case, establishing the breadth of
Railway Labor Act preemption, is Teamsters v. Lucas Flour
Co.22 It holds that federal labor law must be paramount under
the supremacy clause in areas covered by the federal statute,
to avoid inconsistent state law interpretations under state
contract law of collective bargaining agreements.23
Allis-Chalmers Corp. v. Lueck holds that an apparently
independent state tort unrelated to working conditions, bad
faith denial of insurance coverage, was nevertheless
preempted, because the bad faith claim was “inextricably
intertwined” with the group health policy established
pursuant to the collective bargaining agreement.24 Lueck

21

45 U.S.C. § 151a(4)–(5).

22

369 U.S. 95 (1962).

23

Id. at 103–04.

24

471 U.S. 202, 213 (1985).

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holds that “when resolution of a state-law claim is
substantially dependent upon analysis of the terms of an
agreement made between the parties in a labor contract,” the
claim is preempted by federal labor law, and a state law suit
should be dismissed.25 A dictum in Lueck speaks directly to
the case before us. Lueck says that “[c]laims involving
vacation or overtime pay, work assignment, unfair discharge
– in short, the whole range of disputes traditionally resolved
through arbitration – could be brought in the first instance in
state court” were they not deemed preempted.26 Such state
court action would “eviscerate a central tenet of federal laborcontract law under § 301, that it is the arbitrator, not the
court, who has the responsibility to interpret the labor
contract in the first instance.”27 The question in this case is
the one answered by this dictum, though it is merely dictum,
because Masserant’s claim is precisely that her vacation leave
ought to be deemed available in May rather than December,
because of state law affecting use of leave.
Though it had been implied in Lucas Flour and Lueck, the
independent state claim limitation on federal preemption was
articulated explicitly in Lingle v. Norge Division.28 An
employee’s claim for wrongful discharge, under state law
protecting employees from retaliatory discharge for filing
workers compensation claims, was held not to be

25

Id. at 220.

26

Id. at 219–20.

27

Id. at 220.

28

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 (1988).

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preempted.29 The reason was that the state law claim was
“independent” of the collective bargaining agreement.30 All
that mattered for the fired employee’s state law claim was
whether she was discharged and whether the employer’s
motive was to interfere with or deter filing of her workers’
compensation claim.31 This retaliatory discharge claim would
be resolved by a “purely factual inquiry” not requiring the
court to construe the collective bargaining agreement.32
Livadas v. Bradshaw33 and Hawaiian Airlines v. Norris,34
from almost a quarter century ago, are our most recent
guidance from the Court. They expand the independent state
right exception to broad Railway Labor Act preemption.
In Livadas, a state law required an employer to pay a fired
employee’s wages immediately, but company practice was to
send a check from the central office, which would arrive a
few days after termination.35 The employee filed a claim
against her employer in the appropriate state agency, but the
state agency, citing its nonenforcement policy, refused to
enforce her claim against her employer because it would have

29

Id. at 401.

30

Id. at 407–10.

31

Id. at 407.

32

Id.

33

512 U.S. 107 (1994).

34

512 U.S. 246 (1994).

35

Livadas, 512 U.S. at 111.

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to look to the collective bargaining agreement to determine
her wage rate.36 The amount due was undisputed and had in
fact already been paid, albeit not immediately.37 She filed a
1983 action against the state agency seeking a declaration that
the agency’s enforcement policy was preempted by the
National Labor Relations Act.38 We ruled that the policy was
not preempted,39 but were reversed.40 The Court held that the
state agency’s policy disadvantaged workers who had entered
into collective bargaining agreements, since unrepresented
workers could get agency enforcement,41 so the National
Labor Relations Act antidiscrimination provision preempted
the state agency from refusing to enforce a claim on account
of preemption. The collective bargaining agreement said
nothing about when the wages due to fired employees had to
be paid. The Court held that a claim under state law was not
preempted because the question whether wages really were
due immediately was one of state law “entirely independent”
of any understanding of the collective bargaining agreement,
and the amount the employee was entitled to was
undisputed.42

36

Id. at 112–13.

37

Id. at 113–14.

38

Id. at 111–12.

39

Livadas v. Aubry, 987 F.2d 552, 559–60 (9th Cir. 1991).

40

Livadas, 512 U.S. at 110.

41

Id. at 128–30.

42

Id. at 124–25.

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Because the collective bargaining agreement was silent,
Livadas created no tension with most of the previously
articulated standards: “inextricably intertwined”; requires
“analysis” of the collective bargaining agreement’s terms;
“independent” and “purely factual”; not requiring that anyone
“construe” the agreement. Citing to Lueck43 and Lingle,44
Livadas holds that federal preemption cannot not be read so
broadly as to “pre-empt nonnegotiable rights conferred on
individual employees as a matter of state law,” regardless of
whether the underlying facts could also have given rise to a
grievance under the collective bargaining agreement.45 In the
context of a claim where the only reference to the collective
bargaining agreement would have been determination of the
undisputed fact of Livadas’s wage rate, the “bare fact that a
collective bargaining agreement will be consulted” though its
meaning was undisputed, would not require preemption.46
The determination whether the employee was entitled to a
penalty for not having been paid “immediately” depended
only on a calendar, and was “entirely independent of any
understanding embodied in the collective bargaining
agreement.”47 The agency would merely “look to” the
collective bargaining agreement for the wage rates, which
was undisputed.48

43

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985).

44

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 (1988).

45

Livadas, 512 U.S. at 123.

46

Id. at 124.

47

Id. at 125.

48

Id. (citing Lingle, 486 U.S. at 413 n.12).

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The other preemption case from the 1993 term, Hawaiian
Airlines, Inc. v. Norris, involved an employee who claimed
he was fired in violation of a state “Whistleblower Protection
Act” because he refused to certify a plane he thought was
unsafe.49 As in Livadas, the Court held that even though the
basis for an independent state law claim could give rise to a
grievance pursuant to the collective bargaining agreement,
that did not imply that only a grievance could be brought, to
the exclusion of a claim in state court.50 The “only source” of
the right the fired employee sought to enforce, protection of
whistle blowers, was state law.51 “[W]here the resolution of
a state-law claim depends on an interpretation of the CBA,
the claim is preempted,”52 but “as long as the state-law claim
can be resolved without interpreting the agreement itself, the
claim is ‘independent’ of the agreement.”53 State law claims
“entirely independent” of the collective bargaining agreement
are not preempted and subject to Railway Labor Act or
LMRA arbitration.54
We have had quite a few opportunities in the decades
since these decisions to try to apply them, and have
49

512 U.S. 246, 249–51 (1994).

50

Id. at 261 (“[T]he existence of a potential CBA-based remedy
d[oes] not deprive an employee of independent remedies available under
state law.”).
51
Id. at 258 (quoting Andrew v. Louisville & Nashville R. Co.,
406 U.S. 320, 324 (1972)).
52

Id. at 261

53

Id. at 262 (quoting Lingle, 486 U.S. at 408–10 (1988)).

54

Id. at 259 & n.10.

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articulated varying formulas for adjudication. In so doing, we
have recognized that distinguishing preempted from nonpreempted claims under state law “is not a task that always
‘lends itself to analytical precision.’”55 The fundamental
question is always whether the state right is sufficiently
independent of the collective bargaining agreement to avoid
the broad preemption of the National Labor Relations Act and
Railway Labor Act. That is a question requiring judgment
about the facts and agreement in the particular case, and
cannot be resolved merely by relying on one or another of the
varying words and phrases in the cases: “inextricably
intertwined,” “analysis of the terms,” “entirely independent,”
“interpretation,” and “look to.”
We have developed, as our tool for making that
unavoidable judgment, a three-step decision tree. The
background is the broad preemption of the Supreme Court
decisions discussed above. Our three-step decision tree says
when the exception to preemption for an independent state
right can be made:
[The] court must consider: (1) whether the
CBA contains provisions that govern the
actions giving rise to a state claim, and if so,
(2) whether the state has articulated a standard
sufficiently clear that the state claim can be
evaluated without considering the overlapping
provisions of the CBA, and (3) whether the
state has shown an intent not to allow its
prohibition to be altered or removed by

55

Burnside v. Kiewit Pacific Corp., 491 F.3d 1053, 1060 (9th Cir.
2007) (quoting Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 689
(9th Cir. 2001) (en banc)).

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private contract. A state law will be
preempted only if the answer to the first
question is “yes,” and the answer to either the
second or third is “no.”56

Since a “yes” answer to the first question, and a “no” to either
of the other two, compels preemption, we often have not
needed to address all three.
In the cases in which we identified an independent state
claim that was not preempted, most frequently the dispute
was the extent to which the collective bargaining agreement
had to be considered to decide whether the state claim was so
independent as not to be preempted. The California disability
discrimination claims were not preempted in Jimeno and
Espinal, because the collective bargaining agreement
contained no general antidiscrimination clause, and the state
discrimination claim could be evaluated without construing
the collective bargaining agreement.57 In Balcorta v.
Twentieth Century–Fox Film Corp., we held that a California
statute requiring motion picture employees to be paid within
24 hours of discharge was not preempted, because a cursory
examination of the collective bargaining agreement showed
that it did not say what “discharge” meant or when a

56

Miller v. AT&T Network Sys., 850 F.2d 543, 548 (9th Cir. 1988)
(footnote omitted); see also Espinal v. Nw. Airlines, 90 F.3d 1452, 1457
(9th Cir. 1996) (quoting the Miller standard); Jimeno v. Mobil Oil Corp.,
66 F.3d 1514, 1523 (9th Cir. 1995) (same); Cook v. Lindsay Olive
Growers, 911 F.2d 233, 240 (9th Cir. 1990) (same).
57

Espinal v. Nw. Airlines, 90 F.3d 1452, 1457 (9th Cir. 1996);
Jimeno, 66 F.3d at 1524.

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discharged employee had to be paid.58 The state law claim
did not “require us even to refer to the collective bargaining
agreement, let alone interpret it.”59
In Cramer v.
Consolidated Freightways, Inc., a California law prohibiting
two-way mirrors that allowed observation of toilets was not
preempted, because the employees’ privacy claims were “not
even arguably covered by the collective bargaining
agreement.”60
Burnside v. Kiewit Pacific Corp. perhaps goes the furthest
of any of our cases in rejecting preemption, since the
employees’ state law claim for additional compensation for
daily meetings and travel time was addressed to some extent
in the collective bargaining agreement.61 But state law
provided that the state rule applied “unless the collective
bargaining agreement expressly provides otherwise.”62 The
union and employer could opt out of the state law rule, but
the collective bargaining agreement did not expressly so
provide. Thus the state rule required only a look at the
collective bargaining agreement to see whether there was an
express “opt-out,” and no further analysis of it was needed to
adjudicate the state claim. We limited our decision: “Our
decision today reaches only opt-out, not opt-in statutes.”63

58

208 F.3d 1102 (9th Cir. 2000).

59

Id. at 1111.

60

255 F.3d 683, 688 (9th Cir. 2000) (en banc).

61

491 F.3d 1053 (9th Cir. 2007).

62

Id. at 1062 (emphasis added).

63

Id. at 1064 n.11.

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On the other hand, we held that the state claim was
preempted in Firestone v. Southern California Gas Co.64 The
state law claim was for overtime at time and a half, but had an
exemption for collective bargaining agreements that met
certain terms.65 Because the claim required “the collective
bargaining agreement [to] be interpreted to determine . . .
whether California’s overtime exemption provision applies,”
it was not sufficiently “independent” to avoid preemption.66
We distinguished Livadas because there the collective
bargaining agreement had no terms that needed to be
“interpreted.”67
The words used to describe what distinguishes an
independent state right are not talismanic, and are not
consistent from case to case. The Supreme Court has used
“analysis of the terms,” “construe,” requiring “interpretation,”
and other phrases, and we have likewise used “consult,”
“interpret,” “look at,” “analysis,” and others.68 We have
recognized the opacity of these attempts to draw a line
between independent and intertwined state claims. In

64

219 F.3d 1063 (9th Cir. 2000).

65

Id. at 1066.

66

Id. at 1066–68.

67

Id. at 1067.

68

Many cases also tell us that we may not allow the scope of
preemption to grow from an “acorn” into a “mighty oak.” See, e.g.,
Livadas v. Bradshaw, 512 U.S. 107, 122 (1994); Valles v. Ivy Hill Corp.,
410 F.3d 1071, 1076 (9th Cir. 2005).

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Balcorta, we called the line “hazy.”69 In Cramer and
Burnside, we said it was not “a line that lends itself to
analytical precision.”70
What we wind up with from all these cases is the need to
exercise judgment, not a mechanical rule. Our three part test
and words and phrases establish only a “hazy” and
indeterminate line between independent state rights and state
rights inextricably intertwined with the collective bargaining
agreement. In this case, the sounder view is that the state law
right and the collective bargaining agreement are indeed
inextricably intertwined.
The Washington statute says that whatever right to leave
to care for family members the employee has depends on her
collective bargaining agreement. We held in Burnside that “if
the right exists solely as a result of the CBA, then the claim
is preempted, and our analysis ends there.”71 In this case, the
right established by state law is a right to use paid leave to
take care of a sick child or other designated family members:
(1) If, under the terms of a collective
bargaining agreement or employer policy
applicable to an employee, the employee is
entitled to sick leave or other paid time off,
69

Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102,
1108 (9th Cir. 2000) (quoting Ramirez v. Fox Television Station, Inc.,
998 F.2d 743, 749 (9th Cir. 1993)).
70

Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 691 (9th Cir.
2001) (en banc); see Burnside v. Kiewit Pacific Corp., 491 F.3d 1053,
1060 (9th Cir. 2007) (quoting Cramer, 255 F.3d at 691)).
71

Burnside, 491 F.3d at 1059.

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then an employer shall allow an employee to
use any or all of the employee’s choice of sick
leave or other paid time off to care for:
(a) A child of the employee with a health
condition that requires treatment or
supervision; or
(b) a spouse, parent, parent-in-law, or
grandparent of the employee who has a
serious health condition or an emergency
condition.
An employee may not take advance leave
until it has been earned. The employee taking
leave under the circumstances described in
this section must comply with the terms of the
collective bargaining agreement or employer
policy applicable to the leave, except for any
terms relating to the choice of leave.
(2) Use of leave other than sick leave or other
paid time off to care for a child, spouse,
parent, parent-in-law, or grandparent under
the circumstances described in this section
shall be governed by the terms of the
appropriate collective bargaining agreement
or employer policy, as applicable.72

The statute expressly limits the right it establishes to
employees “entitled” to leave “under the terms of a collective
bargaining agreement or employer policy.” The employee
72

Wash. Rev. Code § 49.12.270.

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“must comply” with those terms “except for any terms
relating to the choice of leave.” This dependence of the state
claim on the terms of the collective bargaining agreement
means that the collective bargaining agreement has to be
analyzed to see whether the employee is entitled to paid leave
as in Firestone. If the flight attendant is entitled to leave
under the collective bargaining agreement, she can use it to
care for her son when he is ill. If not, not. The statute directs
us to the collective bargaining agreement to determine
whether the employee is entitled to any leave.
Under the three part test, “if the right exists solely as a
result of the CBA, then the claim is preempted, and our
analysis ends there.”73 Since the statute creates no right to
any kind of paid leave, and conditions its expansion of rights
upon an employee entitlement under the collective bargaining
agreement, “the analysis ends there.” The right to leave in
this case is “substantially dependent on analysis of a
collective-bargaining agreement.”74
Therefore it is
preempted.
The union and the state agency argue that no “analysis”
of the collective bargaining agreement is needed because of
“the undisputed restrictions” the collective bargaining
agreement places on use of prescheduled vacation leave.
Because they do not dispute that Masserant was not entitled
to use her vacation leave scheduled for December to care for
her sick child in May, they argue, no analysis is necessary.
They argue that because a mere “look to” the collective

73

74

Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1059 (9th Cir. 2007).

Id. at 1059 (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 394
(1987)); see Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985).

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bargaining agreement and employer practice establishes that
she is not entitled to use her December leave in May, no
“analysis” is needed, so they avoid preemption under the
second prong of the three part test. Whatever right she has,
they argue, arises solely out of the Washington statute.
That argument would fit a statute saying “regardless of
whether an employee is entitled to paid leave under a
collective bargaining agreement or employer policy, the
employee is nevertheless entitled to up to ten days of leave
per year to care for sick family members,” because it would
establish a right independent of the collective bargaining
agreement. But the Washington statute says the opposite, that
the employee entitlement is conditioned upon her entitlement
to paid time off under the collective bargaining agreement.
She has to show an entitlement to leave under the collective
bargaining agreement to use her leave to care for her sick
child, according to the statute. Thus whatever right
Masserant has cannot, by the terms of the statute, arise
“solely” out of the statute.
The argument for Masserant seems to be that no
“analysis” of the collective bargaining agreement is needed
because it is plain and undisputed that she is not entitled to
paid leave under it. That argument is mistaken for two
reasons. First, it ignores the purpose of the distinction
between “analysis” and mere “looking at.” The purpose is to
distinguish independent state rights from rights intertwined
with the collective bargaining agreement. The purpose is not
to distinguish hard from easy analysis. “Analysis,” in the
context of determining whether the state right is independent
of the collective bargaining agreement, refers to whether the
state claim cannot logically be determined independently of
the provisions of the collective bargaining agreement. If the

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right is not logically independent, it’s not “independent,”
whether the analysis is intellectually challenging or not.
Otherwise, the point of the distinction, preserving a uniform
meaning to the collective bargaining agreement, would be
defeated. Any analysis can be made to sound simple or
complex.
Second, the argument overlooks the first part of the three
part test, a barrier which, if not overcome, precludes any need
to ask whether the collective bargaining agreement would be
analyzed in the state proceeding. Preemption applies because
the right to take paid leave arises solely from the collective
bargaining agreement. This statute only applies if the
employee has a right conferred by the collective bargaining
agreement, so the state right is intertwined with, and not
independent of the collective bargaining agreement.
Our dissenting colleague relies heavily on our recent
decision in Kobold,75 but, as Kobold says, that case was
“similar to Livadas in all pertinent respects” because the
outcome was controlled by the calendar, not the collective
bargaining agreement.76 Kobold did not expand Railway
Labor Act preemption. The Oregon statute required the
employer to pay the deducted amount within seven days of
when the wages were due.77 “Seven days” could be counted
out on a calendar and needed no analysis of the collective
bargaining agreement. Likewise, Kobold held that the breach
of fiduciary duty claim, relying on two Oregon statutes, was

75

832 F.3d 1024 (9th Cir. 2016).

76

Id. at 1040.

77

Id.

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not preempted because “[t]he statutory provisions create and
impose duties on an employer independent of a CBA.”78 By
contrast, the Washington statute at issue in this case creates
a duty conditioned and dependent on the collective bargaining
agreement.
Preemption of course does not mean that Masserant was
not entitled to use her December vacation time in May to care
for her son. All it means is that the question whether she
could use her vacation leave in advance of her scheduled time
for this purpose is to be determined by the dispute resolution
process in the collective bargaining agreement, not by the
state claim resolution process. All we decide is which dispute
resolution process must be used, not what result it must reach.
The district court erred by rejecting preemption.
Accordingly, we reverse and remand for appropriate
resolution so that the dispute can be resolved by the process
established in the collective bargaining agreement.
REVERSED AND REMANDED.

CHRISTEN, Circuit Judge, dissenting:
The district court recognized that the underlying issue in
Masserant’s claim is not what benefits the collective
bargaining agreement provides, it is whether the terms of the
parties’ CBA violate the Washington Family Care Act.
Masserant argues that the WFCA creates “non-negotiable

78

Id. at 1041.

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rights” that Alaska Airlines and AFA could not bargain away.
To resolve Masserant’s claim, the CBA need not be
interpreted. The parties agree that the CBA identifies
circumstances under which accrued and scheduled leave may
be used, and using scheduled leave to care for an employee’s
sick child is not one of those circumstances. In my view, the
district court correctly ruled that the right Masserant asserts
arises from the WFCA, if it exists at all. Masserant’s claim
is not dependent upon the CBA; it is not preempted; and she
should be allowed to pursue it in the state administrative and
judicial process. For these reasons, I respectfully dissent.
I. Masserant’s claim is not preempted by the Railway
Labor Act.
Masserant filed a Personal Leave Complaint with the
Washington Department of Labor & Industries in which she
argued that the terms of the parties’ CBA violate the WFCA.
She prevailed at the first level of the Department’s
administrative process and the Department issued a $200
notice of infraction to Alaska Airlines for denying her leave
request. Alaska Airlines filed this action in federal court
seeking a declaration that Masserant’s claim and the WFCA
choice-of-leave provisions are preempted by the Railway
Labor Act (RLA). See 45 U.S.C. § 151–188; Wash. Rev.
Code § 49.12.265–.295. The district court agreed with
Masserant, her union, and the Department of Labor &
Industries that the RLA does not preempt state enforcement
of the WFCA because Masserant’s WFCA claims are
independent of the parties’ CBA.
On appeal to our court, Alaska Airlines argues that the
RLA requires Masserant to litigate her dispute via the
mandatory grievance procedures outlined in the CBA, rather

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than through state administrative procedures. The RLA
requires that minor disputes, such as the one at issue here,
must first be addressed in the carrier’s internal dispute
resolution process and, if not resolved there, presented to an
Adjustment Board comprised of workers and management.1
See 45 U.S.C. § 184; Atchison, Topeka & Santa Fe Ry. Co.
v. Buell, 480 U.S. 557, 563 (1987). The RLA preempts state
law claims that interfere with the Adjustment Board’s
exclusive jurisdiction to resolve minor disputes. Hawaiian
Airlines, Inc. v. Norris, 512 U.S. 246, 253 (1994). If a claim
is based on rights independently conferred by state law, not
by a CBA, it is not preempted. See Livadas v. Bradshaw,
512 U.S. 107, 125 (1994); Burnside v. Kiewit Pac. Corp.,
491 F.3d 1053, 1059 (9th Cir. 2007). We examine
Masserant’s claim closely because the Supreme Court has
cautioned that federal laws “cannot be read broadly to preempt nonnegotiable rights conferred on individual employees
as a matter of state law.” Livadas, 512 U.S. at 123.
In Burnside v. Kiewit Pacific Corp., our court articulated
a two-part test for determining whether a state law claim that
appears to implicate a collective bargaining agreement is
preempted by § 301 of the Labor Management Relations Act
(LMRA). See 491 F.3d 1053. The Burnside test is critical to
the outcome of this appeal because the Supreme Court has

1

The RLA divides labor disputes into “major” and “minor” disputes.
Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 562–64
(1987). “Major disputes” are “those arising ‘out of the formation or
change of collective bargaining agreements.’” Id. at 563 (quoting Detroit
& T.S.L.R. Co. v. Transp. Union, 396 U.S. 142, 145 n.5 (1969)). “Minor
disputes” are those “‘growing out of grievances or out of the interpretation
or application of agreements concerning rates of pay, rules, or working
conditions.’” Id. (quoting 45 U.S.C. § 153). The parties agree that only
the minor dispute procedures are relevant to this appeal.

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held that the preemption standard under LMRA § 301 is the
same one that applies to the RLA. See Hawaiian Airlines,
512 U.S. at 260. Under Burnside, the court first inquires
whether the asserted cause of action involves a right
conferred on the employee by virtue of state law or by the
terms of a CBA. Burnside, 491 F.3d at 1059. “If the right
exists solely as a result of the CBA, then the claim is
preempted, [] our analysis ends there,” and the claim must be
resolved under the RLA’s mandatory arbitral mechanisms.
Id; see Hawaiian Airlines, 512 U.S. at 252 (“[Claims
preempted under the RLA] must be resolved only through the
RLA mechanisms, including the carrier’s internal disputeresolution processes and an adjustment board established by
the employer and the unions.”). Even if the asserted right
does exist independently of the CBA, at step two the court
must “consider whether it is nevertheless ‘substantially
dependent on analysis of a collective-bargaining agreement.’”
Burnside, 491 F.3d at 1059 (quoting Caterpillar Inc. v.
Williams, 482 U.S. 386, 394 (1987)). Claims that are
substantially dependent on an analysis of a CBA are also
preempted. Id. at 1060.
This court recently explained the policies underlying
Burnside’s two-part test:
The Burnside factors reflect two driving
concerns of preemption doctrine: first,
preventing “parties’ efforts to renege on their
arbitration promises by ‘relabeling’ as tort
suits actions simply alleging breaches of
duties assumed in collective-bargaining
agreements,” Livadas, 512 U.S. at 123, and
second, preserving “a central tenet of federal
labor-contract law . . . that it is the arbitrator,

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not the court, who has the responsibility to
interpret the labor contract in the first
instance,” Lueck, 471 U.S. at 220.

Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024,
1033 (9th Cir. 2016). Masserant’s claim implicates neither of
the aforementioned concerns: she does not claim under the
guise of a tort lawsuit that Alaska Airlines breached its
contract with her, nor does she ask the court to interpret her
CBA.
A. Masserant’s complaint with the Department of
Labor & Industries involves a right that exists, if
at all, by virtue of state law.
Burnside made clear that the operative inquiry at the first
step of this preemption analysis is whether the right at issue
is conferred by state law or by the CBA. See Burnside,
491 F.3d at 1059. “[T]o determine whether a particular right
inheres in state law,” courts “consider ‘the legal character of
[the] claim, as independent of rights under the collectivebargaining agreement [and] not whether a grievance arising
from precisely the same set of facts could be pursued.’” Id.
at 1060 (second alteration in original) (quoting Livadas,
512 U.S. at 123).
It is easy to imagine another similarly situated flight
attendant who might be bound to arbitration, such as an
employee who contests whether she had accrued the leave at
issue. Because the CBA determines how available leave
should be calculated, this hypothetical flight attendant’s
asserted right would arise from the CBA, and, at step one our
analysis would end. See Burnside, 491 F.3d at 1059.
Masserant’s claim is different because she asserts a different

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right, and to apply the Burnside test properly, it is critical to
identify the precise right asserted.2 Masserant prescheduled
her accrued vacation leave for December, but sought to use
it early to care for her sick child. She claims the right to use
accrued leave in a certain way, not the right to additional
accrued leave. Notably, Alaska Airlines does not dispute that
Masserant’s leave had accrued; it objects to Masserant’s
insistence that she should be free to reschedule it. The
district court recognized that the right at issue is the right to
use accrued leave, as do the parties. Masserant describes her
claim as a violation of the WFCA based on “earned time that
[she] was denied to use [by Alaska Airlines]”; Alaska
Airlines acknowledges that the asserted right is Masserant’s
“claimed right to reschedule her December vacation days for
May”; and the Department of Labor & Industries frames the
question as whether the WFCA “confers an independent
statutory right of flexibility that is superimposed on whatever
leave is available to an employee under a collective
bargaining agreement or employer policy.”
The majority concludes that Masserant asserts a right that
is not independent from the CBA because “the [WFCA]
creates no right to any kind of paid leave, and conditions its
expansion of rights upon an employee entitlement under the
collective bargaining agreement.” Because Masserant does
not argue that the WFCA creates a right to paid leave, or
claim to be entitled to additional leave, or even that she is
entitled to use her accrued leave early under the terms of the

2
The Supreme Court has cautioned that this preemption analysis must
be conducted on a case-by-base basis. Allis-Chalmers Corp. v. Lueck,
471 U.S. 202, 220 (1985) (“The full scope of the pre-emptive effect of
federal labor-contract law remains to be fleshed out on a case-by-case
basis.”); see Adkins v. Mireles, 526 F.3d 531, 541 (9th Cir. 2008).

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CBA, the court’s reasoning misses the mark. Masserant
asserts the right to use her accrued vacation leave as family
medical leave, a right that might arise from the statutory
protections within the WFCA, but one that certainly is not
provided by the CBA.
The majority reasons that because the WFCA refers to
leave provided under the terms of a CBA, “whatever right
Masserant has cannot, by the terms of the statute, arise
‘solely’ out of the statute.” But under Burnside’s first step,
the question is whether the asserted right “exists
independently of the CBA,” not whether it arises solely out
of statute. Burnside, 491 F.3d at 1059 (“If the right exists
solely as a result of the CBA, then the claim is preempted,
and our analysis ends there.”). A claim is not preempted just
because it is based on a state statute that refers to rights
included in a CBA. For example, in Livadas, the Supreme
Court concluded that LMRA § 301 did not preempt a claim
challenging an employer’s failure to promptly pay wages at
the time of severance. 512 U.S. at 125. The court recognized
that the employee’s right to be paid arose from the CBA, but
because the employee contested the failure to pay severance
wages promptly, and the right to prompt payment was
afforded only by the state statute, the claim was not
preempted. Id. (holding the right at issue arose out of state
law because “[b]eyond the simple need to refer to bargainedfor wage rates in computing the penalty, the collectivebargaining agreement [wa]s irrelevant to the dispute”).
Our recent decision in Kobold supports Masserant’s
position. See 832 F.3d 1024. In one of the appeals
consolidated in Kobold, the court addressed an Oregon statute
that permitted employers to deduct a portion of employees’
wages as health insurance premiums if authorized to do so by

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a CBA. Id. at 1037–42. The statute made such deductions
unlawful if the funds were not properly applied to pay
insurance premiums within the time specified by the CBA or,
if the CBA was silent, within the statutory limit of seven
days. Id. at 1038. The allegation in Kobold was that the
employer failed to transmit the withheld insurance premiums
to the health insurance plan in a timely manner. Id. at 1037.
Our court held that the claim was not preempted, even though
the CBA provided for this type of pay deduction, because the
asserted claim was for the failure to remit the deductions in
a timely manner, and only the statute specified a seven-day
limitation for transmitting the withheld premiums. Id. at
1040. The CBA did not specify a time period. Id. Our court
also held that the Kobold plaintiff’s breach of fiduciary duty
claim was not preempted because the Oregon statute
governing such claims “create[d] and impose[d] duties on an
employer independent of a CBA.” Id. at 1041. In contrast,
the Kobold court ruled that the same plaintiff’s claim for
money had and received was preempted, because “[the
employer’s] authority to deduct funds from [the plaintiff’s]
paychecks and [the plaintiff’s] right to have those funds
applied toward his health insurance premiums” were based on
the CBA and without the CBA, the plaintiff “would have no
basis upon which to bring the money had and received
claim.” Id.
It is not enough that a CBA refers to a right that is
provided by statute. Our court has held that a claim based on
a statutorily guaranteed right is not preempted, even when the
CBA generally provides for a similar right. See Balcorta v.
Twentieth Century-Fox Film Corp., 208 F.3d 1102 (9th Cir.
2000). In Balcorta, we held that a California law requiring
employers to pay certain employees in the film industry
within twenty-four hours of their discharge was not

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preempted by LMRA § 301. Id. The right to payment and
the timeliness of the payments were addressed by the CBA,
but we concluded the claim for failure to tender payment
within twenty-four hours was not preempted because
“whether a violation has occurred is controlled only by the
provisions of the state statute and does not turn on whether
the payment was timely under the provisions of the collective
bargaining agreement.” Id. at 1111; see also Valles v. Ivy Hill
Corp., 410 F.3d 1071, 1082 (9th Cir. 2005) (holding claim
was not preempted where it was based on a statutorily
guaranteed right to work-free meal periods even though the
CBA purported to waive the right to work-free meal periods).
Like the rights at issue in Livadas, Kobold, and Balcorta,
if Masserant has the right to use her vacation time for family
leave, it arises from a state statute, here, the WFCA, and not
from the parties’ CBA.
B. The right Masserant asserts is not substantially
dependent on analysis of the CBA.
The second step of the Burnside analysis requires a
“determin[ation] whether a state law right is ‘substantially
dependent’ on the terms of a CBA.”3 Burnside, 491 F.3d at
1060 (citation omitted). To apply this part of the test, a court
must “decide whether the claim can be resolved by ‘look[ing]
to’ versus interpreting the CBA.” Id. (alteration in original)
(citation omitted). The line between “looking to” and
“interpreting” is sometimes less than clear-cut, but “‘when
the meaning of contract terms is not the subject of dispute,

3

Although the majority analyzes Masserant’s claim in the context of
Burnside’s step two, it ultimately relies on step one to conclude that
Masserant’s claim is preempted.

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the bare fact that a [CBA] will be consulted in the course of
state-law litigation plainly does not require the claim to be
extinguished.’” Id. (alteration in original) (quoting Livadas,
512 U.S. at 125); see Hawaiian Airlines, 512 U.S. at 262
(“[A]s long as the state-law claim can be resolved without
interpreting the agreement itself, the claim is ‘independent’
of the agreement for . . . pre-emption purposes.” (quoting
Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399,
408–10 (1988))).
In Kobold, where the state law required employers to
transmit paycheck deductions to health insurance plans in a
timely manner, we held that the claim was not preempted at
Burnside’s second step because the CBA “unambiguously
specif[ied]” the parties’ rights and obligations and therefore
did not require interpretation. 832 F.3d at 1040; see also
Balcorta, 208 F.3d at 1109–10 (holding claim not preempted
where court is required to “read and apply” CBA provisions
that are “neither uncertain nor ambiguous”). In Matson v.
United Parcel Service, Inc., 840 F.3d 1126 (9th Cir. 2016),
we held that a hostile work environment claim only
“peripheral[ly]” involved the CBA and was not preempted
because no interpretation of the CBA was required. Id. at
1134–35. Matson involved an employee who claimed that
she was subject to a hostile work environment, in part
because her supervisors assigned “extra work” in a way that
favored male co-workers. Id. at 1129. The employer argued
that the employee’s claim was preempted because the term
“extra work” appeared in the CBA and her claim could not be
resolved without interpreting the term. Id. at 1133. But the
employee’s hostile work environment claim was not
dependent upon consideration of the extra work assignments
because her contention that extra work was disproportionately
assigned to male coworkers was just one example of ways in

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ALASKA AIRLINES V. SCHURKE

which the employee argued her male coworkers were
favored. Id. We explained that the hostile work environment
claim was not preempted at Burnside’s second step because
“[t]he correct interpretation of the CBA . . . [was] purely
peripheral to the relevant question with respect to assigning
work.” Id. at 1134–35.
In Masserant’s case, the key provisions of the CBA are
also wholly undisputed and do not require interpretation. As
of May 2011, when her child was ill, Masserant had an
accrued paid vacation scheduled for December. The CBA
permits vacation leave to be used at unscheduled times in
certain circumstances, but does not address whether vacation
leave may be used for an absence due to a flight attendant’s
own illness or a child’s illness. Because “[t]here is nothing
in the . . . CBA to interpret,” the WFCA’s state-law right is
not substantially dependent on the CBA. See Kobold,
832 F.3d at 1040.
The majority concludes that because Masserant refers to
the CBA’s leave provision to argue that it violates the
WFCA, some “analysis” is required. But it does not explain
why the CBA must be consulted, much less analyzed. On
this record, I conclude that Masserant’s claim does not
“substantially depend” on analysis of the CBA, and that it is
not preempted under the second prong of Burnside.
There is persuasive force to Alaska’s argument that “crew
absences present unique concerns in the airline industry,”
because “without the requisite number of flight attendants on
board, a plane cannot take off.” But the limited question
before this panel is the proper forum for resolving the
important underlying questions raised by Masserant’s claim.
I would hold only that the district court correctly concluded

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that the Washington Department of Labor & Industries’
enforcement of Masserant’s WFCA complaint is not
preempted by the RLA, and that the correct forum for
resolving the parties’ dispute is the state administrative
process.