                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ALASKA AIRLINES INC., an Alaska           No. 13-35574
corporation,
               Plaintiff-Appellant,         D.C. No.
                                         2:11-cv-00616-
                 v.                           JLR

JUDY SCHURKE, in her official
capacity as Director of the State of        OPINION
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.


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

  Argued and Submitted En Banc September 19, 2017
              San Francisco, California
2                 ALASKA AIRLINES V. SCHURKE

                        Filed August 1, 2018

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.

                     Opinion by Judge Berzon;
                      Dissent by Judge Ikuta


                            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.




    *
       This case was submitted to a panel that included Judge Kozinski.
Following Judge Kozinski’s retirement, Judge Paez was drawn by lot to
replace him. See Ninth Cir. Gen. Order 3.2.h. Judge Paez has read the
briefs, reviewed the record, and listened to oral argument.
    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               ALASKA AIRLINES V. SCHURKE                      3

    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.


                         COUNSEL

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.
4                 ALASKA AIRLINES V. SCHURKE

                               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. § 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 (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);


    1
        Because the RLA and LMRA § 301 preemption standards are
“virtually identical” in purpose and function, they are, for the most part,
analyzed under a single test and a single, cohesive body of case law.
Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 260, 262–63 & n.9
(1994). The one significant difference between RLA and LMRA § 301
preemption is that, under our case law, the latter, but not the former, gives
rise to federal court jurisdiction under the “complete preemption” doctrine.
Caterpillar Inc. v. Williams, 482 U.S. 386, 393–94 (1987); Moore-Thomas
v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009); see also
infra note 15.
               ALASKA AIRLINES V. SCHURKE                    5

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”),
6                  ALASKA AIRLINES V. SCHURKE

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

    2
        The WFCA provides, in relevant part:

          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.

Wash. Rev. Code § 49.12.270(1).
              ALASKA AIRLINES V. SCHURKE                   7

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).
8                 ALASKA AIRLINES V. SCHURKE

    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



    3
      Section 20.A of the CBA “establishe[s] a Board of Adjustment for
the purpose of adjusting and deciding [CBA] disputes.” (Emphasis
omitted). Section 20.D provides that “[t]he Board shall consider any
dispute properly submitted to it by the [Master Executive Council]
President of the Association of Flight Attendants . . . or by the [Airline].”
                ALASKA AIRLINES V. SCHURKE                          9

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


    4
     The WFCA is not so limited. It applies both to workers covered by
CBAs and to those covered by employer-established leave policies. See
supra note 2.
10               ALASKA AIRLINES V. SCHURKE

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


     5
      The RLA does not itself use the terms “major” or “minor.”
However, the terms were widely used to describe these two categories of
dispute before the statute was enacted, see Elgin, J. & E. Ry. Co. v.
Burley, 325 U.S. 711, 723 (1945), and remain in common use.
                  ALASKA AIRLINES V. SCHURKE                            11

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.


    6
      Minor disputes in the rail industry are arbitrated before the National
Rail Adjustment Board. See 45 U.S.C. § 153, First. When the RLA was
extended to the airline industry in 1936, Congress provided for the
possibility of a National Air Transport Adjustment Board, see 45 U.S.C.
12                ALASKA AIRLINES V. SCHURKE

    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


§ 185, but no such body was ever formed. Instead, minor disputes arising
in the airline industry are arbitrated before the specific “system board of
adjustment” set up by each airline industry CBA. See Conrail, 491 U.S.
at 304 n.4.
     7
      The source of the obligation to arbitrate differs between the RLA
and the LMRA. The RLA creates the obligation, providing for CBA
disputes to be resolved through grievance and arbitration, and requiring
“adjustment boards” to be created for the arbitration. 45 U.S.C. §§ 153,
184; see also Union Pac. R.R. Co. v. Price, 360 U.S. 601, 610–11 (1959)
(explaining the origins of the RLA’s grievance and arbitration mandate).
LMRA § 301, on the other hand, protects contractually created
obligations. It provides, as a matter of federal common law, for the
specific performance of CBA terms requiring the grievance and arbitration
of disputes. Textile Workers Union v. Lincoln Mills of Ala., 353 U.S. 448,
450–51 (1957); see also Local 174, Teamsters v. Lucas Flour Co.,
369 U.S. 95, 103 (1962). Such terms are not mandated by statute. But as,
                   ALASKA AIRLINES V. SCHURKE                               13

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


in practice, “[a]rbitrators are delegated by nearly all [CBAs] as the
adjudicators of contract disputes,” Lingle, 486 U.S. at 411 n.11, the end
purposes of LMRA § 301 preemption and RLA preemption are the same
— to enforce “a central tenet of federal labor-contract law . . . that it is the
arbitrator, not the court, who has the responsibility to interpret the labor
contract in the first instance.” Lueck, 471 U.S. at 220.
14             ALASKA AIRLINES V. SCHURKE

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.
                ALASKA AIRLINES V. SCHURKE                         15

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 . . . .”


    8
       The National Mediation Board has determined that the RLA allows
certification of unions only where they “represent the majority of a
system-wide class of employees.” Summit Airlines, Inc. v. Teamsters
Local Union No. 295, 628 F.2d 787, 795 (2d Cir. 1980); see 45 U.S.C.
§ 152, Ninth.
16             ALASKA AIRLINES V. SCHURKE

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
                 ALASKA AIRLINES V. SCHURKE                          17

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


    9
      As only minor dispute preemption is at issue in this case, we refer
to “RLA preemption” and “RLA minor dispute preemption”
interchangeably.
    10
      The same principle applies to federal law claims, although they
might better be described as “precluded.” See Buell, 480 U.S. at 563–65
& n.10.
    11
         The panel majority concluded that the Burnside test was
inapplicable to the present case because Burnside dealt with a state law
right from which workers could opt out if the CBA so provided. Schurke,
846 F.3d at 1090–91. The panel majority misread Burnside. There, we
18                ALASKA AIRLINES V. SCHURKE

    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


did not address the distinction between state law rights that are opt-in, opt-
out, or nonnegotiable in explaining the general test for LMRA § 301
preemption; we addressed the distinction in explaining the result we
reached, after applying the generally applicable two-step test. See
Burnside, 491 F.3d at 1060–64. Burnside has been repeatedly so
construed. See Matson, 840 F.3d at 1132; Kobold, 832 F.3d at 1033. To
the extent there remains any doubt, we here reject the panel majority’s
misinterpretation of Burnside and reiterate the general applicability of the
two-step inquiry described.
     12
       Breach-of-contract claims are the paradigmatic example. However,
as the Supreme Court has recognized, RLA and LMRA § 301 preemption
must extend beyond breach-of-contract claims, as “[a]ny other result
would elevate form over substance and allow parties to evade [grievance
and labor arbitration] by relabeling their contract claims as claims for
tortious breach of contract.” Lueck, 471 U.S. at 211.
                  ALASKA AIRLINES V. SCHURKE                           19

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

    13
        As in Balcorta, we here use the term “apply” in the sense of
applying the plain or undisputed terms of the CBA. See Balcorta,
208 F.3d at 1110–11; see also Lingle, 486 U.S. at 410 (“[A]s long as the
state-law claim can be resolved without interpreting the agreement itself,
the claim is ‘independent’ of the agreement . . . .”). Although a claim for
breach of the CBA might be framed as “applying” the CBA, that sort of
dispute over CBA “application” would be preempted under step one.
20             ALASKA AIRLINES V. SCHURKE

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
                 ALASKA AIRLINES V. SCHURKE                           21

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

    14
       So, for example, if addressing a state law claim first requires
resolving a dispute over CBA interpretation, resolving that dispute —
through grievance, through labor arbitration, or through settlement —
should allow the state law claim to proceed. See, e.g., Matson, 840 F.3d
at 1135 (concluding that “even if any interpretation of the CBA had been
required,” it was addressed by earlier grievance settlements and therefore
was not a basis for LMRA § 301 preemption).
22                ALASKA AIRLINES V. SCHURKE

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


     15
        The dissent treats Aetna Health Inc. v. Davila, 542 U.S. 200, 209
(2004), as ruling out the possibility of a forum preemption analysis of this
kind. But Davila has nothing to do with the subject of the RLA or LMRA
§ 301 preemption analysis — the protection of a nonjudicial forum. The
statute at issue in Davila, the Employee Retirement Income Security Act
(“ERISA”), provides for no such alternative forum.

     Moreover, Davila deals only with “complete preemption,” which,
despite its name, “is actually a doctrine of jurisdiction and is not to be
confused with ordinary preemption doctrine.” Balcorta, 208 F.3d at 1107
n.7; see also Caterpillar, 482 U.S. at 393. According to Davila, section
502(a) of ERISA, like section 301 of the LMRA, has such strong
preemptive force that it justifies an exception to the well-pleaded
complaint rule. Davila, 542 U.S. at 209. ERISA preemption defenses,
like LMRA § 301 defenses, are therefore valid grounds for removal. Id.
at 207–08. Unlike ERISA (or the LMRA), the RLA is not a source of
complete preemption, as it “does not provide a federal cause of action.”
Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1245–46 (9th Cir.
2009) (quoting 15 Moore’s Federal Practice § 103.45(3)(b) (3d ed. 2008);
see also Hughes v. United Air Lines, Inc., 634 F.3d 391, 394–95 (7th Cir.
2011), cert. denied, 565 U.S. 819; Sullivan v. Am. Airlines, Inc., 424 F.3d
267, 274–75 (2d Cir. 2005); Roddy v. Grand Trunk W. R.R. Inc., 395 F.3d
318, 326 (6th Cir. 2005); Geddes v. Am. Airlines, Inc., 321 F.3d 1349,
1356–57 (11th Cir. 2003), cert. denied, 540 U.S. 946.
                  ALASKA AIRLINES V. SCHURKE                            23

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




    16
          See also, e.g., United Steelworkers v. Rawson, 495 U.S. 362, 371
(1990) (“As we see it . . . , respondents’ tort claim cannot be described as
independent of the collective-bargaining agreement. This is not a situation
where the Union’s delegates are accused of acting in a way that might
violate the duty of reasonable care owed to every person in society. There
is no allegation, for example, that members of the safety committee
negligently caused damage to the structure of the mine . . . .”); Hechler,
481 U.S. at 861 (“In her complaint, respondent alleges . . . [a] type of
[preempted] tortious breach-of-contract claim. She asserts that . . . the
Union owed respondent a duty of care to ensure her a safe working
environment. Having assumed this duty under the collective-bargaining
agreement, the Union — according to the complaint — was then negligent
. . . .” (citation omitted)).
24               ALASKA AIRLINES V. SCHURKE

    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

     17
       Ordinarily, RLA and LMRA § 301 preemption claims are made
defensively, by an employer seeking the dismissal of a claim brought in
or removed to federal court. In such cases, a federal court finding no
preemption may, if it otherwise has jurisdiction, go on to resolve the
merits. Here, however, the Airline raised RLA preemption offensively,
in a federal action in which our jurisdiction is strictly limited to the
preemption analysis. The parties do not cite, nor have we uncovered, a
similar offensive RLA or LMRA § 301 preemption case, in which the
intended subject of the federal injunction is an ongoing state agency or
state court proceeding. But the defendants have raised no procedural
objection to our authority to decide the present case. See Sprint
Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 79–80 (2013); Bud Antle, Inc. v.
Barbosa, 45 F.3d 1261, 1271–72 (9th Cir. 1994).
              ALASKA AIRLINES V. SCHURKE                   25

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.
26            ALASKA AIRLINES V. SCHURKE

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
                  ALASKA AIRLINES V. SCHURKE                            27

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


    18
       The Court concluded, in the alternative, that the DLSE policy was
subject to Machinists preemption. Machinists preemption is another, more
specific application of substantive conflict preemption under the NLRA.
It applies where state law attempts to regulate areas intentionally left “to
be controlled by the free play of economic forces,” so as to “preserve[]
Congress’ intentional balance between the uncontrolled power of
management and labor to further their respective interests.” Bldg. &
Const. Trades Council of Metro. Dist. v. Associated Builders &
Contractors of Mass./R.I., Inc., 507 U.S. 218, 225–26 (1993) (internal
quotation marks omitted); Lodge 76, Int’l Ass’n of Machinists &
Aerospace Workers v. Wis. Emp’t Relations Comm’n, 427 U.S. 132
(1976).
28                ALASKA AIRLINES V. SCHURKE

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


     19
       See San Diego Bldg. Trades Council, Millmen’s Union, Local 2020
v. Garmon, 359 U.S. 236, 245 (1959) (holding that “the States as well as
the federal court must defer to the exclusive competence of the National
Labor Relations Board” if “an activity is arguably subject to § 7 or § 8 of
the [NLRA]”).
     20
      See Int’l Ass’n of Machinists & Aerospace Workers, 427 U.S. at
145–48 (holding that state law is preempted where it would upset the
congressionally defined balance of power between management and labor
by regulating activity Congress deliberately left unregulated); see also
Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608, 614
(1986).
               ALASKA AIRLINES V. SCHURKE                     29

(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 § 296-130-070 (describing the administrative appeal
process at L&I). But what matters here is not the legal merits
30            ALASKA AIRLINES V. SCHURKE

of Masserant’s state law claim, but that Masserant’s claim
invokes a state law right that applies to all workers, whether
CBA-covered or not, and gives rise to a state law dispute, not
a dispute concerning the meaning of the CBA.

    Second, whatever the correct interpretation of Washington
law, Masserant’s claim does not require construction of the
CBA. The claim of course relies on the terms and conditions
of employment established by the CBA, in that Masserant’s
banked vacation days exist only by virtue of her having
earned them in accordance with a workplace policy
incorporated in the CBA. And the claim may be aided by
reference to certain other CBA provisions, such as those
making banked vacation immediately available for exchange,
personal medical leave, maternity leave, bereavement leave,
or cash-out. See Livadas, 512 U.S. at 125. But reliance on
and reference to CBA-established or CBA-defined terms of
employment do not make for a CBA dispute if there is no
disagreement about the meaning or application of any
relevant CBA-covered terms of employment. See id.
(rejecting preemption where the calculation of damages
depended on the CBA’s undisputed wage provisions);
Burnside, 491 F.3d at 1072 (citing examples of employers
attempting to manufacture preemption by invoking CBA
disputes unrelated to the resolution of the claims at issue).

    In this case, the meaning of every relevant provision in
the CBA is agreed upon. Most importantly, the parties agree
that Masserant did, in fact, have seven days of banked
vacation, which she could also have chosen to use for a
number of exigent, unscheduled purposes, such as
                 ALASKA AIRLINES V. SCHURKE                           31

bereavement or personal medical leave.21 The Airline argues
that a dispute exists over whether Masserant truly “earned”
her vacation and was “entitled” to take it within the meaning
of the WFCA. But those terms, as here relevant, are
contained within the WFCA, not the CBA. See Wash. Rev.
Code § 49.12.270(1). A dispute over their meaning is a
dispute over state law, and therefore outside the scope of the
“minor disputes” to which an RLA system adjustment board
is limited. See 45 U.S.C. § 184; Norris, 512 U.S. at 254–55.
“[T]he construction of the [CBA] is simply not involved.”
Valles v. Ivy Hill Corp., 410 F.3d 1071, 1082 (9th Cir. 2005).
If the state agency or state courts ultimately decide that the
Airline is correct about the meaning of the WFCA, Masserant
will not have been entitled to use her seven banked vacation
days to care for her sick child, and she will lose without
regard to any construction of the CBA; if Masserant is correct
about the meaning of the WFCA, the remedies accorded by
state law will be available, and she will win without regard to
any construction of the CBA.

    At oral argument, the Airline suggested that the Union
was separately seeking to have the CBA reinterpreted to
allow for the rescheduling of vacation leave for family
medical purposes. But it does not matter for present purposes
whether the Union, or a worker, may in a separate grievance
proceeding pursue the theory that the CBA does allow
rescheduling vacation leave for family medical reasons. A
state law right to flexibility in rescheduling vacation leave for


    21
       In light of the numerous undisputed options for repurposing
advance-scheduled leave, the Airline’s professed concern for the
predictability of its schedules — irrelevant in any event for the purposes
of an RLA preemption analysis, see Buell, 480 U.S. at 565 — is somewhat
overstated.
32               ALASKA AIRLINES V. SCHURKE

family medical reasons is no less independent of the CBA if
the CBA also provides that right on its own. The fact that “a
CBA provides a remedy or duty related to a situation that is
also directly regulated by non-negotiable state law does not
mean the employee is limited to a claim based on the CBA.”
Humble, 305 F.3d at 1009; see Norris, 512 U.S. at 261;
Lingle, 486 U.S. at 412–13. What matters for present
purposes, in other words, is that Masserant can prevail if state
law means what L&I has already concluded it means, whether
or not the Airline’s CBA interpretation is correct.22

    In sum, the requisites of RLA preemption do not exist in
this case. Masserant is entitled to pursue her state law
remedies, if any, before the state agency and in state courts,
as state law provides.

                                   D

    The dissent advocates a version of preemption for which
no authority exists in the RLA minor dispute or LMRA § 301
context, for which no party has argued,23 and which neither
the district court nor the three-judge panel so much as




     22
        At oral argument, the Union disavowed any interest in labor
arbitration on Masserant’s behalf over the possibility of a CBA-created
right to reschedule accrued vacation leave. The Union, as the workers’
representative, is the party responsible under the CBA for pursuing a
worker’s claim in labor arbitration. Bowen, 459 U.S. at 225–26 & n.14;
supra note 3.
     23
        The Airline disavowed the dissent’s reading of the RLA both in its
briefing and at oral argument. L&I and the Union took the same position.
                   ALASKA AIRLINES V. SCHURKE                               33

mentioned.24 The court’s first task, according to the dissent,
is to construe state law and resolve all disputes between the
parties as to its meaning. Only then would we consider who
has the authority to resolve the parties’ dispute — at that
point, a seemingly futile endeavor.

    The practical consequences of the dissent’s approach are
disturbing. As we have emphasized, RLA preemption
presents, at bottom, a question of forum. But the dissent
would begin its analysis by rejecting Masserant’s state law
claim, and would thus usurp the role of the state forum from
the outset. The dissent would do so in the name of conflict
preemption, even though there is no possible interpretation of
the WFCA that would create a substantive “conflict” with the
RLA, as the RLA has no bearing on substantive state law
rights. Norris, 512 U.S. at 254. And the dissent would
conclude — notwithstanding a state agency ruling to the
contrary, our lack of jurisdiction over the underlying claim,




     24
         Schurke, 846 F.3d at 1085 (“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 . . . whether the state
administrative board or the [CBA] grievance procedure ought to decide
. . . .”); Alaska Airlines, Inc. v. Schurke, No. C11-0616JLR, 2013 WL
2402944, at *7 (W.D. Wash. May 31, 2013) (“The court need not
determine whether Alaska’s restrictions on the use of banked vacation
time violated the WFCA and does not reach the merits of that issue. It is
sufficient that a court could determine that the WFCA independently
guaranteed Ms. Masserant the right to use her accrued leave, whatever the
source, for family leave.”).
34               ALASKA AIRLINES V. SCHURKE

and Masserant’s absence from the present action — that
Masserant’s interpretation of state law is invalid. The dissent
would then enjoin any further consideration of Masserant’s
WFCA claim by the state agency, thereby barring the only
body with jurisdiction over Masserant’s state law claim from
resolving it.25 As to Masserant, the end result is to force her
into a CBA-based claim absent from her complaint and
disclaimed by her legal representative. Cf. Caterpillar,
482 U.S. at 394–95 (“It is true that respondents . . . possessed
substantial rights under the collective [bargaining] agreement,
and could have brought suit under [the LMRA]. As masters
of the complaint, however, they chose not to do so.”). More
broadly, the end result is a break from any conventional
understanding of our federal system: The dissent would use
the RLA to enjoin the state agency from interpreting and
applying state law, thus allowing a federal court effectively
to police the development of substantive state law, and
inhibiting the state from creating precedent on the meaning of
its own statutes through the ordinary process of state court
appeals.

   The dissent would presumably allow the state to
administer its own law if a WFCA claim were brought by a
worker not covered by a CBA. This special treatment of
CBA-covered workers reinforces the problems with the




     25
      The dissent’s approach would be just as objectionable had its state
law analysis come out the other way, affirming the state agency’s
conclusion that the Airline violated the WFCA. Either way, this court
would be deciding a state law issue not properly before it.
                   ALASKA AIRLINES V. SCHURKE                              35

dissent’s analysis. First, as the same claim exists for workers
not covered by a CBA, the claim does not arise entirely from
the CBA and should not be completely extinguished. Lingle,
486 U.S. at 409 n.8, 413 n.12. Second, in using the RLA
specially to disfavor union-represented workers, the dissent
would replicate the very result the Supreme Court
unanimously rejected in Livadas. See Livadas, 512 U.S. at
116–17 & n.11. Like the NLRA preemption at issue in
Livadas, RLA preemption cannot result in subjecting union-
represented workers to a parallel system of substandard state
law rights. See 45 U.S.C. § 151a(2); Livadas, 512 U.S. at
113–14; see also Metro. Life, 471 U.S. at 756; Burnside,
491 F.3d at 1068–69.

    In sum, the only question we are asked here is who
decides Masserant’s claim — L&I or the labor arbitrator.26
The answer cannot be the Ninth Circuit. L&I and the labor
arbitrator have separate and non-overlapping competencies,




    26
       The dissent expresses concern about plaintiffs frivolously asserting
independent state law rights so as to evade the jurisdiction of the
grievance and arbitration mechanism. Usually, of course, we assume state
bodies are capable of applying federal law, including RLA preemption
principles, of their own accord, without the need for a federal injunction.

     In any event, there is no realistic possibility of evasion. If a state law
right is frivolously asserted, the plaintiff’s claim will be dismissed by the
state body with jurisdiction over it. Furthermore, the usually short
limitations period for filing an RLA minor dispute grievance will almost
surely run in the interim. An employee has no incentive to forego a
possibly meritorious CBA claim in favor a frivolous state action.
36                ALASKA AIRLINES V. SCHURKE

and each must be respected.27 See Steelworkers I, 363 U.S. at
568.

                                     E

   Finally, although, for the reasons given, the merits are not
ours to decide,28 we observe that the dissent’s reading of

     27
       Notably, even if the WFCA claim required resolution of a CBA
dispute, the claim would still not arise entirely from the CBA, and thus
would not be fully extinguished by the RLA. The claim would be
preempted only to the extent necessary to ensure CBA construction
though grievance and arbitration. Lingle, 486 U.S. at 413 n.12; see also,
e.g., Matson, 840 F.3d at 1135. Accordingly, assuming the elements of
injunctive relief could be satisfied, Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 22 (2008); eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388,
391 (2006); All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th
Cir. 2011), the proper approach would be to enjoin L&I only from
construing any terms of the CBA. See Kobold, 832 F.3d at 1034. We note
also that, in light of the Anti-Injunction Act, federal courts are likely
barred from issuing injunctions where proceedings purportedly subject to
RLA preemption are pending before a state court. See 28 U.S.C. § 2283;
Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 294
(1970).
     28
        The dissent cites Rawson as an example of the Supreme Court
reaching its own conclusions regarding the validity under state law of a
state law claim. But in Rawson, the Supreme Court accepted the Idaho
Supreme Court’s view of state law rights, and disagreed only as to the
implications of the Idaho Supreme Court’s holding for LMRA § 301
preemption. Rawson, 495 U.S. at 370–71.

     The dissent similarly cites Burnside as an example of a federal court’s
authority to construe state law in an RLA or LMRA § 301 preemption
analysis. In Burnside, however, the question addressed was a
jurisdictional one — complete preemption — not here applicable. In that
context, we determined only that the interpretation the employer suggested
was entirely implausible. Burnside, 491 F.3d at 1063 (concluding that
“the final choice of language in [the regulation] means what it says rather
                  ALASKA AIRLINES V. SCHURKE                           37

Washington law is at the very least highly debatable. It is
undisputed that Masserant’s scheduled vacation was
immediately available to her for several purposes, including
personal medical leave, maternity leave, or bereavement
leave. So the statutory right to freedom in “choice of leave”
may well be implicated. Wash. Rev. Code § 49.12.270(1).

    On this point, the L&I guidance regarding the WFCA,
published in 2009, is informative. It explains that employees
“who have access to paid leave for themselves” also have
“full access . . . to this leave to care for a sick family
member.” State of Wash., Dep’t of Labor and Indus., Emp’t
Standards, Frequently Asked Questions About the Family
Care Act, Question 17 (December 3, 2009); see also Wash.
Rev. Code § 49.12.265(5) (“‘Sick leave or other paid time
off’ means time allowed . . . to an employee for illness,
vacation, and personal holiday.”). Masserant’s claim appears
consistent with this guidance; her banked vacation days were
available to her for unscheduled paid leave for herself.

   The same L&I guidance states that CBA provisions
“concerning the use of leave, such as . . . advance scheduling


than the opposite of what it says,” and observing that the explanation
relied upon by the employer was a scrivener’s error “incorrectly
paraphras[ing] the [regulatory] language”). Once the jurisdictional
question in Burnside was answered in the negative, we ordered the merits
determination remanded to state court. Id. at 1074. That an analysis with
jurisdictional implications should invite a threshold inquiry into the
plausibility of the parties’ views of state law is an unremarkable facet of
federal law. See, e.g., Am. W. Airlines, Inc. v. Nat’l Mediation Bd.,
119 F.3d 772, 775 (9th Cir. 1997) (holding, in the context of RLA
representation disputes, that “a court may only ‘peek at the merits’ in
order to determine if the [National Mediation Board] committed a
constitutional violation or [an] egregious violation of the RLA” that would
allow for judicial review of the Board’s decision).
38             ALASKA AIRLINES V. SCHURKE

of vacation[,] may still be applied.” But Masserant did
comply with the CBA’s requirement for the advance
scheduling of vacation, just as the WFCA instructs. Wash.
Rev. Code § 49.12.270(1) (“The employee taking leave . . .
must comply with the terms . . . applicable to the leave,
except for any terms relating to the choice of leave.”). She
then sought to use her advance-scheduled leave in accordance
with her statutory right to flexibility in using earned leave for
a different purpose than that assigned by her terms of
employment. To require Masserant to do any more — for
example, to require that she predict and preschedule her son’s
emergency medical needs half a year before they occurred —
would seem to undermine the WFCA’s freedom from
restrictions on “choice of leave.” See State v. Keller,
143 Wash. 2d 267, 277 (2001) (“Statutes must be construed
so that all language is given effect with no portion rendered
meaningless or superfluous.”); see also State of Wash., Dep’t
of Labor and Indus., Emp’t Standards, Frequently Asked
Questions About the Family Care Act, Question 9 (Aug. 6,
2014) (“While the employer is permitted to establish an
advanced scheduling policy generally, the policy cannot bar
the employee from using vacation leave for Family Care Act
purposes without violating the choice of leave provision.”).

    The state agency and state courts with jurisdiction over
Masserant’s claim and the Airline’s appeal are, of course, the
bodies here entrusted with interpreting and applying state
law. Under our ruling, they will have both the first and the
last word as to what the WFCA means. Our observations on
the subject are meant only to show that L&I’s interpretation
has considerable grounding in the statute’s language and
purpose.
              ALASKA AIRLINES V. SCHURKE                   39

                             III

    Masserant’s state law claim neither arises entirely from
the CBA nor requires a construction of it. It is therefore not
preempted under the RLA. The district court’s order on
summary judgment is AFFIRMED.



IKUTA, Circuit Judge, joined by TALLMAN, CALLAHAN,
BEA, and M. SMITH, Circuit Judges, dissenting:

    The preemptive scope of the Railway Labor Act (RLA) is
clear: when resolution of a state-law cause of action requires
interpretation or application of a collective bargaining
agreement, it constitutes a “minor dispute” that must be
resolved through the RLA’s mandatory arbitral mechanism.
See Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 253
(1994). Instead of applying this rule, the majority imposes an
unprecedented constraint that effectively eviscerates federal
court review. The majority holds that in conducting an RLA
preemption analysis, a federal court may not consider the
nature and scope of the state cause of action (what the
Supreme Court calls the cause of action’s “legal character”)
but must limit itself to determining whether the plaintiff has
pleaded a claim that constitutes a minor dispute. Because this
constraint is directly contrary to decades of the Supreme
Court’s preemption decisions and impairs or extinguishes
RLA preemption, I dissent.

                              I

    Because the majority fails to include pertinent
information about the collective bargaining agreement, the
40             ALASKA AIRLINES V. SCHURKE

nature of Masserant’s complaint before the agency, and the
proceedings in federal court, a fuller description of the facts
is set out below.

    Laura Masserant is a flight attendant with Alaska
Airlines, a federally regulated common carrier operating
domestic and international flights that employs over three
thousand flight attendants nationwide. Alaska Airlines’s
flight attendants are represented by the Association of Flight
Attendants-Communication Workers of America, AFL-CIO
(AFA). In accordance with the provisions of the RLA,
Alaska Airlines and AFA entered into a collective bargaining
agreement (CBA) detailing numerous aspects of the
employment relationship. Among other provisions, the CBA
covers sick leave, vacations, and leaves of absence. These
provisions are critical to ensuring that Alaska Airlines can
meet Federal Aviation Administration (FAA) minimum crew-
staffing requirements for each of its thousands of daily
flights.

    Under the CBA, flight attendants accrue sick leave based
on the amount they work, including the number of flights
staffed and the flight mileage. Flight attendants may use sick
leave in a host of situations defined by the CBA, as well as
“pursuant to applicable State law and/or Company policy.”
Alaska Airlines, headquartered in Washington state, interprets
this provision to mean that flight attendants can use sick leave
to care for qualifying family members under the Washington
Family Care Act (WFCA), Wash. Rev. Code § 49.12.270(1).

   In addition to sick leave, flight attendants receive paid
vacations. The CBA sets forth how vacations days are
scheduled in a detailed process. By October 1 of each year,
Alaska Airlines posts the list of available vacation times.
                 ALASKA AIRLINES V. SCHURKE                          41

Flight attendants have fifteen days in which to sign up for
available vacation periods, and vacation days are awarded for
the following year based on these preferences and the flight
attendant’s seniority. Once vacation days are assigned, a
flight attendant may trade these days with other flight
attendants, subject to certain limitations. Flight attendants
may also request early vacation pay, though the vacation days
themselves remain scheduled as unpaid days off.

    The CBA enumerates instances when an employee may
use vacation time outside of the scheduled period. Among
other things, a flight attendant may use sick leave or vacation
time to cover certain medical leaves of absence, maternity
leaves of absence, parental leaves of absence, and
bereavement leaves of absence. Under Alaska Airlines’s
interpretation of the CBA and longstanding practice, flight
attendants may not otherwise reschedule vacation. For
example, Alaska Airlines contends flight attendants may not
reschedule vacation time to care for themselves or a sick
family member.1

    The CBA also contains procedures for resolving disputes
as to the meaning of any of the terms in the CBA concerning
“rates of pay, rules or working conditions.” As required by
the RLA, 45 U.S.C. § 184, the CBA establishes a multi-stage
process for resolving disputes concerning the interpretation
or application of the CBA, culminating in mandatory
arbitration before a neutral board of adjustment. Decisions by
this board are “final and binding upon the parties.”



    1
       If flight attendants take absences that do not meet the criteria
specified in the CBA, they incur attendance points, which may become the
basis for disciplinary action.
42            ALASKA AIRLINES V. SCHURKE

    In October 2010, Masserant signed up for her preferred
2011 vacation schedule. At the beginning of 2011, Masserant
was awarded four vacation days in January, and seven in each
of February, April, November, and December. As allowed by
the CBA, Masserant took her four paid vacation days in
January, and then requested early vacation pay for the days
scheduled in February, April, and November. Masserant was
therefore left with only seven paid vacation days—all
scheduled for December.

    On May 20, 2011, Masserant needed time off to care for
her son, and requested sick leave to cover a two-day trip from
May 21–22. Alaska Airlines informed her that she did not
have sick leave available for the entire two-day trip, and she
was not entitled to reschedule her paid vacation days in
December to cover the absence. As a result, she would
receive attendance points for an emergency absence.

    Ignoring the CBA’s grievance procedures for challenging
Alaska Airlines’s implementation of the contract’s sick leave
and vacation policy, Masserant, supported by her Union,
instead filed a complaint with the Washington Department of
Labor & Industries (L&I) on June 16, 2011. In her complaint
to L&I, Masserant challenged Alaska Airlines’s application
of its sick leave policy, arguing that it had both failed to
credit her for sick leave accrued in May and failed to let her
use accrued sick leave to cover a portion of her absence.
Masserant also challenged Alaska Airlines’s application of
the CBA’s vacation policy, stating: “I asked my company to
                 ALASKA AIRLINES V. SCHURKE                          43

use my remaining week of vacation for this occurrence. This
is earned time that I was denied to use.”2

    In response to L&I’s investigation of Masserant’s
complaint, Alaska Airlines explained that reliable attendance
in conformance with FAA safety regulations requiring
minimum crew staffing for every flight was vital to “deliver
on its mission,” and gave details regarding its complex
bidding process for vacations. According to Alaska Airlines,
under the CBA, “[f]light attendants are not permitted to use
vacation on an unscheduled basis when they get sick,” and
therefore “it is consistent with the WFCA that the flight
attendant not be able to use vacation when a family member
gets sick.”

    L&I first acknowledged its “position” that “any policy
(including advanced vacation scheduling and medical
verification) are allowable as long as they don’t relate to the
choice of leave.” However, L&I concluded that Alaska
Airlines’s interpretation of the CBA was undercut by the fact
that “[t]here are occasions when vacation time is ‘available’
for flight attendants that are not affected by the seniority
based bidding process.” Because flight attendants can use
“accrued sick leave and/or vacation leave” on an unscheduled
basis for medical absences, maternity leave, and bereavement
leave, L&I was “troubled” that paid vacation was not offered
for family care. Therefore, L&I issued a Notice of Infraction,
dated May 31, 2012, stating that “Ms. Masserant was entitled
to seven (7) days of vacation,” and under WFCA, Alaska


    2
      At the time of the complaint, Masserant was president of the local
AFA chapter, and was well aware that AFA and Alaska Airlines were
engaged in discussions regarding whether the CBA allowed a flight
attendant to use vacation time to care for a sick child.
44                ALASKA AIRLINES V. SCHURKE

Airlines must allow her to use this vacation leave to care for
her sick child. It ordered Alaska Airlines to pay a $200
penalty.3

    In March 2012, Alaska Airlines filed an amended
complaint in district court against L&I.4 The complaint
sought preliminary and permanent injunctive relief enjoining
L&I from continuing to investigate or enforce Masserant’s
complaint. In support of this request for relief, the complaint
alleged that the RLA preempted such enforcement efforts
because the mechanisms provided in the CBA were
Masserant’s exclusive means of resolving this dispute. The
district court granted AFA’s motion to intervene on behalf of
Alaska Airlines’s employees in order to defend their
members’ rights to enforce WFCA using L&I’s procedures.

    The parties then filed cross-motions for summary
judgment on the question whether the RLA preempted
Masserant’s state-law cause of action and required her to
resolve this dispute through the CBA’s dispute resolution


     3
       Alaska Airlines filed an administrative appeal of the Notice of
Infraction, and AFA petitioned to intervene, but the appeal was
subsequently dismissed without prejudice pending the resolution of Alaska
Airline’s action in federal court.
     4
       Alaska Airlines first filed a complaint for injunctive and declaratory
relief to enjoin L&I from processing flight attendants’ WFCA complaints
and to declare such complaints preempted in all instances under the RLA.
(Formally, the first complaint, as well as the amended complaint, named
Judy Schurke, in her official capacity as Director of L&I, and Elizabeth
Smith, in her official capacity as Employment Standards Program
Manager of L&I, as defendants.) The district court dismissed the
complaint on the ground that Alaska Airlines’s claims were not fit for
judicial decision, because Ninth Circuit case law requires analysis of RLA
preemption on a case-by-case basis.
               ALASKA AIRLINES V. SCHURKE                    45

procedures. In district court, L&I no longer suggested that
Masserant was entitled to use vacation time to care for a sick
child in this case because the CBA allowed vacation time to
be used for medical leave and other purposes. Instead, L&I
and AFA argued that the question whether the CBA allowed
Masserant to use vacation time for her own illness or that of
her child was not material because WFCA gave Masserant an
independent right to use her vacation days at any time,
whether scheduled or not. The district court ruled in favor of
AFA and L&I, concluding that WFCA “may” grant
Masserant an independent right to use her December vacation
time to care for her sick child in May, and therefore the
complaint was not preempted by the RLA.

     On appeal, Alaska Airlines argues that Masserant’s claim
raises the sort of dispute that has to be determined through the
CBA’s dispute resolution process. In response, L&I and
AFA argue that as a matter of law, WFCA gives employees
a non-negotiable right, independent of the CBA, to use
vacation days to care for sick family members “irrespective
of any limitations that an employer would attempt to put on
that leave,” including “any advance scheduling requirements
for the flight attendant’s vacation.” As explained below, L&I
and AFA’s litigating position is not supported by the plain
language of the statute and regulations, and therefore
resolving Masserant’s claim requires the interpretation and
application of the CBA.

                               II

    The simple question before us is whether the RLA
preempts Masserant’s cause of action because it is a minor
dispute that must be channeled through the RLA’s mandatory
arbitral mechanism. See Hawaiian Airlines, 512 U.S. at 253.
46             ALASKA AIRLINES V. SCHURKE

The majority fails to understand or apply the Supreme
Court’s direction for determining whether a state-law cause
of action is preempted by the RLA, and so reaches the wrong
conclusion.

                               A

    Congress enacted the RLA in 1926 “to promote stability
in labor-management relations” between railroad companies
and their employees. Atchison, Topeka & Santa Fe Ry. Co. v.
Buell, 480 U.S. 557, 562–63, 562 n.9 (1987) (quoting Union
Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 94 (1978)).5 To
accomplish these goals, “the RLA establishes a mandatory
arbitral mechanism for ‘the prompt and orderly settlement’ of
two classes of disputes,” major and minor. Hawaiian
Airlines, 512 U.S. at 252 (quoting 45 U.S.C. § 151a). Under
the RLA, all disputes arising out of the interpretation or
application of an air carrier’s collective bargaining agreement
are minor disputes that must proceed through “RLA
mechanisms, including the carrier’s internal dispute-
resolution processes and an adjustment board established by
the employer and the unions.” Id. at 253; see also 45 U.S.C.
§ 153(i).

    The RLA’s mandatory arbitral mechanism is the “heart of
the Railway Labor Act,” Bhd. of R.R. Trainmen v.
Jacksonville Terminal Co., 394 U.S. 369, 377–78 (1969), and
the key mechanism for “minimizing interruptions in the
Nation’s transportation services,” Int’l Ass’n of Machinists,
AFL-CIO v. Cent. Airlines, Inc., 372 U.S. 682, 687 (1963).
Accordingly, the Supreme Court inferred that Congress

    5
      The RLA was amended in 1936 to cover the air transportation
industry. 45 U.S.C. §§ 181–188.
                ALASKA AIRLINES V. SCHURKE                      47

intended the RLA’s mandatory arbitral mechanism to be the
exclusive method for resolving minor disputes, and it
therefore has preemptive force. See Andrews v. Louisville &
Nashville R.R. Co., 406 U.S. 320, 322 (1972). A state-law
cause of action is preempted if it conflicts with the RLA’s
mandatory arbitral mechanism for resolving minor disputes.
See Hawaiian Airlines, 512 U.S. at 252–53.

    The Supreme Court provides for a straightforward
preemption analysis in the RLA context (as well as under
§ 301 of the Labor Management Relations Act (LMRA)).6 A
state-law cause of action that is “founded directly on rights
created by collective-bargaining agreements” or that involves
claims “substantially dependent on analysis of a collective-
bargaining agreement,” is governed by federal law.
Caterpillar Inc. v. Williams, 482 U.S. 386, 394 (1987)
(quoting Int’l Bhd. of Elec. Workers, AFL-CIO v. Hechler,
481 U.S. 851, 859 n.3 (1987)). When resolution of the state-
law claim involves “interpretation or application” of a
collective bargaining agreement, the claim is not independent
of the agreement, but constitutes a minor dispute that must be
resolved through the RLA’s mandatory arbitral mechanism.
45 U.S.C. § 153(i); Hawaiian Airlines, 512 U.S. at 252–53.
Similarly, when a state-law remedy “turn[s] on the
interpretation of a collective-bargaining agreement for its
application,” the remedy is preempted by the RLA. Lingle v.
Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407 n.7 (1988);
see also Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,
210–11, 217–18 (1985). Finally, even “if a law applied to all
state workers but required, at least in certain instances,
collective-bargaining agreement interpretation, the

   6
     The Supreme Court applies the same preemption standard for the
RLA and § 301 of the LMRA. Hawaiian Airlines, 512 U.S. at 263.
48               ALASKA AIRLINES V. SCHURKE

application of the law in those instances would be pre-
empted.” Lingle, 486 U.S. at 407 n.7.

     By contrast, when a state law establishes substantive
rights that are independent of a collective bargaining
agreement, the enforcement of such rights under state law
may not be preempted. See, e.g., Colo. Anti-Discrimination
Comm’n v. Cont’l Air Lines, Inc., 372 U.S. 714, 724 (1963);
Terminal R.R. Ass’n of St. Louis v. Bhd. of R.R. Trainmen,
318 U.S. 1, 5–7 (1943). Further, “the Supreme Court has
distinguished between claims that require interpretation or
construction of a labor agreement and those that require a
court simply to ‘look at’ the agreement.” Balcorta v.
Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1108 (9th
Cir. 2000) (citing Livadas v. Bradshaw, 512 U.S. 107, 123–26
(1994)). “[W]hen the meaning of contract terms is not the
subject of dispute, the bare fact that a collective-bargaining
agreement will be consulted in the course of state-law
litigation plainly does not require the claim to be
extinguished.” Livadas, 512 U.S. at 124.7

                                    B

    WFCA gives employees a state-law right which, by its
terms, is based on rights provided by a collective bargaining


     7
       Although we have distinguished between merely referencing a
collective bargaining agreement and interpreting its terms, we do not
otherwise define the term “interpret” narrowly. Cf. Maj. Op. at 19. Under
the RLA, minor disputes are the disputes “growing out of grievances or
out of the interpretation or application of agreements concerning rates of
pay, rules, or working conditions.” 45 U.S.C. § 153(i) (emphasis added).
Any state-law cause of action that requires a court to determine how a
collective bargaining agreement applies to the facts of a case is a minor
dispute that is preempted. See Hawaiian Airlines, 512 U.S. at 253.
                    ALASKA AIRLINES V. SCHURKE                          49

agreement.8 Wash. Rev. Code § 49.12.270. “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 the employee may use
the employee’s “choice of sick leave or other paid time off”
to care for a qualifying relative. Id. § 49.12.270(1).9 An
employee who takes leave “under the circumstances


    8
        Washington Revised Code section 49.12.270 provides, in full:

           (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.

           (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.
    9
      “Sick leave or other paid time off” is defined, in part, as “time
allowed under the terms of an appropriate state law, collective bargaining
agreement, or employer policy, as applicable, to an employee for illness,
vacation, and personal holiday.” Wash. Rev. Code § 49.12.265(5).
50                  ALASKA AIRLINES V. SCHURKE

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.” Id. (emphasis added). In other words, if an
employee is entitled to sick leave or other paid time off under
the terms of a collective bargaining agreement, WFCA gives
that employee the right to choose either sick leave or other
paid time off for qualifying family care; the employee must
otherwise comply with all other terms of the collective
bargaining agreement.

    L&I’s published regulations directly track the language of
the statute, see Wash. Admin. Code § 296-130-030, and a
number of guidance documents provide a consistent
interpretation of the statutes and regulations. One such
document, published in December 2009, explains that the
state-law right provided to employees under WFCA gives
employees who “have access to paid leave for themselves”
the right to “full access to any and all of this leave to care for
a sick family member.”10 State of Wash., Dep’t of Labor &


     10
          The pertinent paragraph in the guidance document states:

            What is meant by the provision that says the employer
            must allow an employee to use any and all of the
            employee’s choice of sick leave or other paid time off
            to care for a sick family member?

            Employees must have access to any available sick leave
            or other paid time off to care for a sick family member.
            If employees have access to paid leave for themselves,
            then they must have full access to any and all of this
            leave to care for a sick family member. This law
            directs the employer to allow employees the choice of
            available leave to care for a sick family member.
            Employers must now allow use of sick leave and other
                ALASKA AIRLINES V. SCHURKE                         51

Indus., Emp’t Standards, Frequently Asked Questions About
the Family Care Act, Question 17 (Dec. 3, 2009). According
to L&I, state law imposes on employers an independent
obligation of allowing “use of sick leave and other paid time
off to care for a sick family member even if a pre-existing
collective bargaining agreement or employer policy
prohibited such use.” Id. This right is limited, however, as
the guidance explains: “provisions of collective bargaining
agreements or employer policies regarding the accumulation
of leave and other provisions concerning the use of leave,
such as medical certification and advance scheduling of
vacation may still be applied.” Id. (emphasis added). In
other words, advanced scheduling of vacation time is a term
“of the collective bargaining agreement or employer policy
applicable to the leave” that an employee “must comply with”
in order to take leave under WFCA. See Wash. Rev. Code
§ 49.12.270(1). L&I originally adopted this interpretation in
this case, acknowledging that “any policy (including
advanced vacation scheduling and medical verification) are
allowable as long as they don’t relate to the choice of leave.”

    In the course of litigating Masserant’s claim, L&I
proffered a new interpretation of the statute, arguing that


        paid time off to care for a sick family member even if
        a pre-existing collective bargaining agreement or
        employer policy prohibited such use. However,
        provisions of collective bargaining agreements or
        employer policies regarding the accumulation of leave
        and other provisions concerning the use of leave, such
        as medical certification and advance scheduling of
        vacation may still be applied.

State of Wash., Dep’t of Labor & Indus., Emp’t Standards, Frequently
Asked Questions About the Family Care Act, Question 17 (Dec. 3, 2009).
52                ALASKA AIRLINES V. SCHURKE

WFCA “confers on employees the non-negotiable right,
independent of collective bargaining agreements, to choose
to use any earned leave provided by a collective bargaining
agreement to care for sick family members, irrespective of
any limitations that an employer would attempt to put on that
leave—including any limitation that Alaska might put on a
flight attendant’s use of leave for the flight attendant’s own
illness or any advance scheduling requirements for the flight
attendant’s vacation.”11

     L&I’s interpretation, proffered for the first time as a
litigation position, must be rejected because it is contrary to
the language of the statute, the regulations, and L&I’s own
2009 guidance document, all of which require employees to
comply with the terms of the collective bargaining agreement
“except for any terms relating to choice of leave.” Wash.
Rev. Code § 49.12.270(1) (emphasis added); see Wash.
Admin. Code § 296-130-030. Contrary to L&I’s litigation


     11
        In August 2014 (two years after issuing the Notice of Infraction,
and one year after the district court’s decision in this case), L&I issued a
modified guidance document, which now states: “[I]f an employer policy
requires advanced scheduling for vacation leave, the policy would be
inapplicable to an employee who chooses to use vacation leave to take
care of a sick family member. While the employer is permitted to establish
an advanced scheduling policy generally, the policy cannot bar the
employee from using vacation leave for Family Care Act purposes
without violating the choice of leave provision.” State of Wash., Dep’t
of Labor & Indus., Emp’t Standards, Frequently Asked Questions
About the Family Care Act, Question 9 (Aug. 6, 2014),
http://www.lni.wa.gov/WorkplaceRights/files/policies/esc10.pdf. This
document does not provide any reasoning or statutory interpretation; nor
does L&I explain the reasons for its sharp change from earlier views.
Furthermore, as L&I recognizes in its own brief, the FAQs “do ‘not
replace the applicable RCW and WAC standards[,]’ because general
policies do not trump the plain language of the statute.”
               ALASKA AIRLINES V. SCHURKE                    53

position, nothing in WFCA gives employees the right to use
vacation leave to care for a qualifying relative when that
leave is unavailable under the collective bargaining
agreement. In the RLA and § 301 context, the Supreme
Court has declined to defer to an agency interpretation that
“simply slips any tether to [state] law,” where an agency’s
“late-blooming rationales” create an “awkwardly inexact”
overlap between the agency’s interpretation and “what the
state legislature has enacted into law.” Livadas, 512 U.S. at
126, 128. Similarly, in Burnside v. Kiewit Pacific Corp., we
rejected an agency’s published interpretation of a wage order
on the ground that “it is the plain language of an actual,
enacted regulation which must govern, not language that
appears in the underlying rationale.” 491 F.3d 1053, 1064
(9th Cir. 2007).

     The Court has adopted a similar approach in considering
federal agency interpretations of federal statutes, and does not
defer to agency interpretations that are contrary to the
language of the statute, are “nothing more than ‘a convenient
litigating position,’” or that constitute “a ‘post hoc
rationalizatio[n] . . . seeking to defend past agency action
against attack.’” Christopher v. SmithKline Beecham Corp.,
567 U.S. 142, 155 (2012) (first alteration in original) (first
quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,
213 (1988); then quoting Auer v. Robbins, 519 U.S. 452, 462
(1997))). Washington courts take a similar approach. See
Waste Mgmt. of Seattle, Inc. v. Utils. & Transp. Comm’n,
123 Wash. 2d 621, 627–28 (1994) (Washington courts “will
not defer to an agency determination which conflicts with the
statute”); Cerrillo v. Esparza, 158 Wash. 2d 194, 205–06
(2006) (holding that absent ambiguity, Washington courts do
not defer to agency interpretations; courts will “glean the
legislative intent from the words of the statute itself,
54                ALASKA AIRLINES V. SCHURKE

regardless of contrary interpretation by an administrative
agency” (quoting Agrilink Foods, Inc. v. State, Dep’t of
Revenue, 153 Wash. 2d 392, 396 (2005))).

    In short, to plead a WFCA claim, employees must show
they are entitled to sick leave or other paid time off under the
terms of their collective bargaining agreement; only if that
threshold qualification is met are employers obliged to let
employees choose to use the time off for qualifying family
care.

                                    C

    Applying these principles here, Masserant must show that
she is “entitled to” paid time off “under the terms of [the]
collective bargaining agreement,” and that she “compl[ied]
with the terms of the collective bargaining agreement . . .
applicable to the leave,” Wash. Rev. Code § 49.12.270(1),
including any requirements applicable to rescheduling
vacation time. Masserant’s WFCA claim therefore turns on
whether she was entitled to reschedule her December
vacation time under the terms of the CBA.12 If answering this
threshold question requires interpretation or application of the
CBA, it must be resolved through the RLA’s mandatory
arbitral mechanism before she can exercise the state-law right
to choose.

     12
        The majority asserts that whether Masserant is “entitled” to
vacation time is a state-law dispute because the term is “contained within
the WFCA,” and therefore outside the scope of minor disputes. Maj. Op.
at 31. This assertion is meritless. WFCA states that an employee is
“entitled to” paid time off only when the “terms of a collective bargaining
agreement” so provide. Wash. Rev. Code § 49.12.270(1). Unless a mere
look at the CBA establishes Masserant’s entitlement, it is necessary to
interpret the CBA’s terms and apply them to Masserant’s situation.
                  ALASKA AIRLINES V. SCHURKE                            55

    The CBA does not expressly address an employee’s
entitlement to reschedule vacation time. Nor did the parties
argue to the district court or in their briefs on appeal that
Alaska Airlines’s practice—not to allow such rescheduling of
vacation time to care for a sick relative—is an implied term
of the CBA based on “the parties’ ‘practice, usage and
custom.’” Consol. Rail Corp. v. Ry. Labor Execs.’ Ass’n
(Conrail), 491 U.S. 299, 311 (1989) (quoting Transp. Union
v. Union Pac. R.R. Co., 385 U.S. 157, 161 (1966)).

    At oral argument, L&I and AFA asserted for the first time
that they are willing to concede that the CBA does not allow
flight attendants to reschedule vacation time to take care of
family members.13 Given their concession, they argue, it is
not necessary to consult the CBA to determine whether
Masserant was entitled to reschedule her December vacation
time.

    This argument must be rejected. As a threshold matter,
neither AFA nor L&I have authority to make such a
concession on Masserant’s behalf. The question at issue is
whether Masserant, not AFA or L&I, must pursue her claim
using the RLA’s mandatory arbitral mechanism. In her
complaint to L&I, Masserant claimed that Alaska Airlines
refused her request to use December vacation time to care for
her sick child in May. She did not concede that she had no
such right under the CBA. Neither AFA nor L&I represent

    13
        This represents a change in L&I’s position, which argued to the
district court that the CBA does not address the question whether the CBA
allows flight attendants to reschedule vacation time to take care of family
members. AFA argued to the district court that the CBA does not allow
such rescheduling, but in its brief on appeal backed off from this position,
stating that its argument was solely for purposes of the summary judgment
motion and the issue is irrelevant on appeal.
56            ALASKA AIRLINES V. SCHURKE

Masserant in this appeal, and neither claims to have authority
to waive Masserant’s access to the CBA’s dispute resolution
mechanism. Moreover, although Alaska Airlines states it has
long had the practice of not allowing flight attendants to
reschedule vacation time to care for sick family members,
unilateral conduct by an employer is not automatically
incorporated as an implied term of the CBA. Id. at 311.
Rather, as with other disputes requiring an interpretation of
the CBA, the question whether a particular entitlement or
duty constitutes “the common law of a particular industry or
of a particular plant” such that it has become part of the CBA
must be determined through the arbitral mechanism. Id. at
311–12 (quoting Transp. Union, 385 U.S. at 161).

    In short, the question whether Masserant is entitled to
reschedule her vacation time under the terms of the CBA
cannot be resolved by merely looking to the agreement, but
requires interpretation and application of the CBA.
Therefore, it is a quintessential minor dispute that must be
channeled through the RLA’s mandatory arbitral mechanism.
See Hawaiian Airlines, 512 U.S. at 252–53.

                              D

    This conclusion is in accord with the purposes of the
RLA. In considering common carriers with nationwide
operations, Congress recognized the importance of avoiding
“any interruption to commerce or to the operation of any
carrier engaged therein,” by ensuring that disputes would be
settled consistently and promptly through the RLA’s
mandatory arbitral mechanism. 45 U.S.C. § 151a. Here,
Alaska Airlines argues that flight attendant absences pose
unique concerns in the airline industry. Under FAA
regulations, a plane cannot take off without the requisite
               ALASKA AIRLINES V. SCHURKE                    57

number of flight attendants on board; thus, ensuring
employee attendance is critical to the basic operations of an
air carrier. While Alaska Airlines retains and pays for flight
attendants to be on “reserve” to cover for unexpected
absences, those reserves are not unlimited. Such backup
measures are not intended to ensure consistent day-to-day
operations. For that, Alaska Airlines relies on its negotiations
with AFA for detailed scheduling of leave, attendance, and
absence, as embodied in the CBA. A cornerstone of these
negotiations is the mandatory arbitral mechanism, designed
for “the prompt and orderly settlement” of disputes
concerning the CBA’s negotiated leave terms. Id. If state
courts could apply the potentially conflicting state law of
each of the fifty states to interpret the CBA’s terms and
conditions, the congressional goal of consistent, reliable
operation would be threatened, and the application of state
law “might lead to inconsistent results since there could be as
many state-law principles as there are States.” Lingle,
486 U.S. at 405–06.

                              III

    Instead of applying this straightforward analysis, the
majority circumvents Supreme Court precedent and offers a
series of disconnected arguments for why we must deem
Masserant’s claim to be a question of state law that is not a
minor dispute. First, the majority notes that RLA preemption
is a type of “forum preemption,” which considers whether a
particular cause of action must be heard in a state or federal
forum. Maj. Op. at 24–25. Based on this unexceptionable
observation, the majority leaps to the unsupported and
untenable argument that unlike “conflict preemption,” which
allows consideration of state law, RLA preemption precludes
any consideration of the state law governing a cause of
58               ALASKA AIRLINES V. SCHURKE

action. Maj. Op. at 21–24. Any analysis of the nature and
scope of the state-law cause of action, the majority asserts, is
the same as reaching the merits of the state-law claim. Maj.
Op. at 32–33, 36–37. This approach, the majority urges, is
contrary to forum preemption analysis, which allows a court
to decide only who the decisionmaker will be. Maj. Op. at
35–36. According to the majority, a federal court’s “only job
is to decide whether, as pleaded,” a claim is independent of
the CBA. Maj. Op. at 24 (emphasis added). As explained
below, each of these conclusions is not only baseless and
illogical, but contrary to Supreme Court and our own
precedent.

                                  A

    The majority’s main argument—that RLA preemption
precludes consideration of state law, Maj. Op. at 30–32—has
no support in any Supreme Court or Ninth Circuit precedent.

    As the Supreme Court has framed it, to determine whether
“a state cause of action may go forward” or is instead
preempted by § 301, a court must consider the “legal
character” of a state-law claim. Livadas, 512 U.S. at
123–24.14 In the RLA and § 301 context, federal courts must
understand the claim’s legal character to determine whether
the state-law cause of action is “founded directly on rights
created by collective-bargaining agreements” or on claims


     14
        The majority concedes that courts must understand the legal
character of a state cause of action before it can determine whether the
cause of action must be channeled through the RLA’s mandatory arbitral
mechanism. Maj. Op. at 24, 29. But the majority does not attempt to
determine the legal character of Masserant’s WFCA claim or explain how
this determination should be accomplished.
               ALASKA AIRLINES V. SCHURKE                     59

“substantially dependent on analysis of a collective-
bargaining agreement.” Caterpillar Inc., 482 U.S. at 394
(quoting Hechler, 481 U.S. at 859 n.3). If it is, dispute
resolution is governed by the RLA or § 301. Id. As the
Supreme Court applies this test, the analysis involves
interpreting state law.

    In United Steelworkers of America v. Rawson, for
instance, the survivors of miners who were killed in an
underground fire brought a state wrongful death action
against the union, claiming it had negligently performed an
inspection of the mine. 495 U.S. 362, 364 (1990). Although
the union had undertaken the inspection pursuant to a
collective bargaining agreement, the Idaho Supreme Court
held that the union had a state-law duty to perform a
reasonable inspection which “arose from the fact of the
inspection itself rather than the fact that the provision for the
Union’s participation in mine inspection was contained in the
labor contract.” Id. at 370–71. Therefore, the Idaho Supreme
Court “rejected the suggestion that there was any need to look
to the collective-bargaining agreement to discern whether it
placed any implied duty on the Union.” Id. at 370. Reading
this opinion in light of other state law, however, the Supreme
Court rejected the plaintiffs’ argument that their tort claim
was independent of the collective bargaining agreement. Id.
at 371. Based on its understanding of Idaho law, including
the state supreme court decision, the Supreme Court
concluded that the union’s duty of care arose out of its
contractual obligations. Id. Therefore, the plaintiffs could
not avoid preemption of their state cause of action “by
60                ALASKA AIRLINES V. SCHURKE

characterizing the Union’s negligent performance” as merely
a state-law tort. Id. at 371–72.15

    In reaching this conclusion, the Court rejected Justice
Kennedy’s dissent, which argued that a state cause of action
is saved from preemption by § 301 so long as there is an
interpretation of state law that would allow it to operate
independently of a collective bargaining agreement. See id.
at 379 (Kennedy, J., dissenting) (arguing that because there
is a “possibility . . . that the respondents may prove” their
case “without relying on the collective bargaining
agreement,” the court should allow the respondents to “press
their state claims”). Further, the Court rejected Justice
Kennedy’s suggestion that “[i]f the Idaho Supreme Court,
after a trial on the merits, were to uphold a verdict resting on
the Union’s obligations under the collective-bargaining
agreement, we could reverse its decision.” Id. at 380. In

     15
        The majority attempts to distinguish Rawson on the ground that it
“disagreed only as to the implications of the Idaho Supreme Court’s
holding for LMRA § 301 preemption.” Maj. Op. at 36 n.28. This is
simply incorrect. Rawson carefully analyzed the Idaho Supreme Court’s
opinion on state tort law (the duty of care) to understand the nature and
scope of state law. Rawson, 495 U.S. at 371 (“Nor do we understand the
Supreme Court of Idaho to have held that any casual visitor in the mine
would be liable for violating some duty to the miners if the visitor failed
to report obvious defects to the appropriate authorities.”). Having
conducted its own analysis of state tort law, Rawson rejected the
plaintiffs’ claim that there was a colorable interpretation of state law
which would not require interpretation or application of a collective
bargaining agreement. Rather, it held that “[p]re-emption by federal law
cannot be avoided by characterizing the Union’s negligent performance
of what it does on behalf of the members of the bargaining unit pursuant
to the terms of the collective-bargaining contract as a state-law tort.” Id.
at 371–72. Therefore, the Court concluded that “this suit, if it is to go
forward at all, must proceed as a case controlled by federal, rather than
state, law.” Id. at 372.
                 ALASKA AIRLINES V. SCHURKE                          61

other words, Rawson forecloses the majority’s view that a
federal court must defer to any proposed interpretation of
state law and allow a state-law claim to proceed on that
theory. Maj. Op. at 24. Rather, federal courts must analyze
state law to determine the legal character of the state-law
claim.

     The Court takes a similar approach in determining the
preemptive force of ERISA, which “mirror[s] the pre-emptive
force of LMRA § 301.” Aetna Health Inc. v. Davila,
542 U.S. 200, 209 (2004). Like the RLA and § 301, ERISA
channels certain disputes into a congressionally mandated
mechanism and preempts state causes of action that interfere
with this mechanism.16 Id. at 208–09. The ERISA
preemption question asks whether a state-law claim falls
“within the scope” of ERISA’s civil enforcement remedy and
therefore “conflicts with the clear congressional intent to
make the ERISA remedy exclusive.” Id. at 209. To
determine whether a state-law claim falls within the scope of
ERISA’s exclusive civil enforcement mechanism, courts
“must examine respondents’ complaints, the statute on which
their claims are based . . ., and the various plan documents.”
Id. at 211 (emphasis added). The same is true in the RLA and
§ 301 context.

   We have likewise construed the nature and scope of state
law to rule on preemption in our prior § 301 opinions. See

    16
       Thus the majority’s statement that “Davila has nothing to do with
the subject of the RLA or LMRA § 301 preemption analysis,” Maj Op. at
22 n.15, is unsupportable. ERISA protects a congressionally-mandated,
“comprehensive remedial scheme.” Davila, 542 U.S. at 217. Like the
RLA and § 301, ERISA seeks to enforce a federal pathway for resolving
disputes, and preempts state causes of action that conflict with that
pathway. Therefore, Davila is an apt comparison.
62               ALASKA AIRLINES V. SCHURKE

Burnside, 491 F.3d at 1064. In Burnside, an employee
covered by a collective bargaining agreement brought various
state-law claims against his employer based on the
employer’s failure to pay wages for time traveled between
company-designated meeting points and actual job sites. Id.
at 1056, 1058. The state regulation giving employees the
right to be compensated for compulsory travel time stated that
it applied “to any employees covered by a valid collective
bargaining agreement unless the collective bargaining
agreement expressly provides otherwise” (an “opt-out”
regulation). Id. at 1062 (quoting Cal. Code Regs. tit. 8,
§ 11160(5)(D)). But the agency with authority to construe
this law held it “does not apply to any employee covered by
a valid collective bargaining agreement unless the collective
bargaining agreement expressly provides otherwise” (an “opt-
in” regulation). Id. at 1063. Burnside viewed the
interpretation of this rule to be critical for determining
whether the employee could bring a state cause of action. If
the agency’s interpretation was correct, “the state-law rights
can be more readily viewed as existing only if the CBA says
so and as therefore dependent on the CBAs,” id. at 1064 n.11,
which would likely have led to the conclusion it was
preempted. Instead of accepting the agency’s interpretation,
Burnside construed the state law, concluded that the agency’s
interpretation of the regulation was incorrect, and held that
“[i]n any event, it is the plain language of an actual, enacted
regulation which must govern, not language that appears in
the underlying rationale.” Id. at 106417; see also Valles v. Ivy


     17
       The majority attempts to distinguish Burnside because it considered
the preemptive force of § 301 in a jurisdictional context. Maj. Op. at 36
n.28. As explained below, infra Section III.B., this distinction is
meritless. Indeed, given the majority’s reliance on the two-part test
adopted in Burnside, Maj. Op. at 18–19 (applying Burnside and
                 ALASKA AIRLINES V. SCHURKE                           63

Hill Corp., 410 F.3d 1071, 1077 (9th Cir. 2005) (recognizing
that we “begin” § 301 preemption analysis “with an
examination of California statutes, regulations, and case
law”).

    Accordingly, contrary to the majority, it is well
established that determining the legal character of a state
cause of action by interpreting the state law at issue is an
essential step in deciding the RLA preemption question.

                                    B

    In the absence of any Supreme Court or Ninth Circuit
support for its theory that a court may not consider state law
in determining whether a state cause of action constitutes a
minor dispute, the majority resorts to other arguments: it tries
and fails to identify a meaningful distinction between RLA
preemption and conflict preemption; cites inapposite out-of-
circuit cases; and analogizes to the inapplicable doctrines of
primary jurisdiction and contract analysis in the arbitration
context. Each of these efforts fails.

    First, the majority argues that while courts consider state
law in determining “typical conflict preemption,” courts may
not do so in considering “RLA and LMRA § 301 preemption”
because they are instead “grounded in the need to protect the
proper forum for resolving certain kinds of disputes.” Maj.




subsequent cases that rely on Burnside for its preemption analysis), it is
baffling that the majority claims Burnside is “not here applicable.” Maj.
Op. at 36 n.28.
64                  ALASKA AIRLINES V. SCHURKE

Op. at 21. This argument is meritless.18 In purporting to
distinguish between conflict preemption and forum
preemption, the majority misses the basic point that all
preemption flows from the Supremacy Clause, which dictates
that federal law “shall be the supreme Law of the Land.”
U.S. Const. art. VI, § 1, cl. 2. To be sure, the scope of
preemption is a matter of congressional intent, see Lueck,
471 U.S. at 208, and therefore the preemptive force of federal
legislation varies depending on that intent. We have used
shorthand to refer to our understanding of the preemptive
force of certain statutes, referring to Garmon preemption19
and Machinists preemption20 in the labor context, as well as


     18
       Indeed, the Court has never suggested that anything other than
ordinary conflict preemption principles apply, emphasizing that the
question under § 301 (and therefore under the RLA) is whether a state-law
claim conflicts with federal labor law. See Lueck, 471 U.S. at 209 (under
§ 301, federal courts must determine whether a state-law claim “conflicts
with federal law or would frustrate the federal scheme” (citation omitted));
Livadas, 512 U.S. at 120 (“In labor pre-emption cases, as in others under
the Supremacy Clause,” courts must decide if a state-law claim “conflicts
with or otherwise ‘stands as an obstacle to the accomplishment and
execution of the full purposes and objectives’ of the federal law.” (quoting
Brown v. Hotel Emps., 468 U.S. 491, 501 (1984))). The majority asserts
that Livadas illuminates a distinction between ordinary conflict
preemption and § 301 preemption. Maj. Op. at 25–28. Livadas does not
support the majority’s point. Rather, it merely recognizes that the NLRA
and § 301 have different preemptive effects. See Livadas, 512 U.S. at
116–17, 121–23. We, of course, agree that the two statutes and their
preemptive effects are distinct. Livadas does not hold, however, that a
proper interpretation of state law is irrelevant to the § 301 preemption
question.
     19
          San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959).
   20
      Lodge 76, Int’l Ass’n of Machinists & Aerospace Workers v. Wis.
Emp’t Relations Comm’n, 427 U.S. 132 (1976).
               ALASKA AIRLINES V. SCHURKE                   65

forum preemption, field preemption, conflict preemption,
express preemption, and the like. But such labels do not
change the basic principle of federal preemption, namely:
“Congress enacts a law that imposes restrictions or confers
rights on private actors; a state law confers rights or imposes
restrictions that conflict with the federal law; and therefore
the federal law takes precedence and the state law is
preempted.” Murphy v. Nat’l Collegiate Athletic Ass’n,
138 S. Ct. 1461, 1480 (2018).

    For the same reason, the majority errs in attempting to
distinguish cases that considered the preemptive force of
federal statutes in a jurisdictional context. The same basic
preemption principles apply in the complete preemption
context, even though the question is jurisdictional. While we
are generally bound by the well-pleaded complaint rule,
“which provides that federal jurisdiction exists only when a
federal question is presented on the face of the plaintiff’s
properly pleaded complaint,” Balcorta, 208 F.3d at 1106, the
preemptive force of some federal statutes, such as § 301 of
the LMRA, is “so ‘extraordinary’ that it ‘converts an ordinary
state common-law complaint into one stating a federal claim
for purposes of the well-pleaded complaint rule,’” Caterpillar
Inc., 482 U.S. at 393 (quoting Metro. Life Ins. Co. v. Taylor,
481 U.S. 58, 64 (1987)). Federal question jurisdiction is
supported only when a claim falls within the preemptive
scope of federal law. See Balcorta, 208 F.3d at 1106.
Therefore, courts ask the same question in deciding whether
a claim is completely preempted (and thus supports federal
question jurisdiction) and in deciding whether a state-law
claim is preempted by § 301—whether the state-law claim
depends “on rights created by collective-bargaining
agreements.” Caterpillar Inc., 482 U.S. at 394. Thus, the
majority’s attempts to distinguish Davila and Burnside, Maj.
66             ALASKA AIRLINES V. SCHURKE

Op. at 22 n.15, 36 n.28, because they considered the
preemptive force of federal statutes in a jurisdictional context,
is wholly without support. See, e.g., id. at 394–95 (applying
the test for § 301 preemption to a complete preemption
question).

    These basic principles of preemption require federal
courts to determine when congressional intent supersedes
state requirements. Regardless whether Congress intended to
supersede state law regulating behavior (typical conflict
preemption) or to supersede state law creating causes of
action (typical forum preemption), it is necessary to evaluate
the state law in order to determine if it conflicts with the
federal law. The majority errs in its apparent belief that
reading state statutes to resolve the forum preemption
question is equivalent to reading state statutes to decide the
merits of a dispute. Maj. Op. 21–22. Courts are perfectly
capable of, and indeed are required to evaluate a state-law
cause of action to determine whether it creates a minor
dispute without evaluating and deciding the dispute itself.
Reading state law is a part of that analysis. See supra Section
II.A.

    Second, in the absence of any Ninth Circuit precedent, the
majority points to out-of-circuit cases to support its argument
that forum preemption precludes consideration of state law,
but they lend no support. Rather, the cases cited by the
majority merely articulate the scope of RLA preemption. See
Davies v. Am. Airlines, Inc., 971 F.2d 463, 465 n.1 (10th Cir.
1992) (holding that “the RLA vests exclusive and mandatory
jurisdiction over certain claims in an arbitral forum,” and
noting that RLA preemption is different than “the doctrine of
field preemption,” which addresses whether Congress has
“precluded states from regulating a particular area of
               ALASKA AIRLINES V. SCHURKE                    67

conduct”); see also Sullivan v. Am. Airlines, Inc., 424 F.3d
267, 273–74 (2d Cir. 2005) (holding that “state-law claims
that are disguised minor disputes” are “preempted by the
RLA,” but that the RLA does not support federal question
jurisdiction); Ry. Labor Execs. Ass’n v. Pittsburgh & Lake
Erie R. Co., 858 F.2d 936, 942–43 (3d Cir. 1988) (holding
that the RLA does not support federal question jurisdiction);
Miller v. Norfolk & W. Ry. Co., 834 F.2d 556, 560–61 (6th
Cir. 1987) (distinguishing between complete preemption and
“choice of forum” preemption). However, neither the Tenth
Circuit in Davies nor any other circuit has held, or even
hinted, that a proper construction of state law is irrelevant to
RLA or § 301 preemption.

    Finally, the majority analogizes to the prudential doctrine
of primary jurisdiction and to the contract principles used to
determine when issues have been submitted to an arbitrator.
Maj. Op. at 21–23. These analogies fail. Primary jurisdiction
is “a prudential doctrine under which courts may, under
appropriate circumstances, determine that the initial
decisionmaking responsibility should be performed by the
relevant agency rather than the courts.”                Syntek
Semiconductor Co. v. Microchip Tech. Inc., 307 F.3d 775,
780 (9th Cir. 2002). Cases applying primary jurisdiction
doctrine do not grapple with the question whether a proper
construction of state law is necessary for preemption
purposes. The majority also analogizes to arbitrability
disputes under the Federal Arbitration Act. See Maj. Op. at
21 (citing First Options of Chi., Inc. v. Kaplan, 514 U.S. 938,
943 (1995)). First Options uses contract principles to
determine whether the parties agreed to submit the issue of
arbitrability to the arbitrator. 514 U.S. at 943. It does not
provide any support to the majority’s claim that a federal
court cannot consider the state cause of action to determine
68                ALASKA AIRLINES V. SCHURKE

whether it constitutes a minor dispute.21 Even if the
majority’s analogies were apt, neither doctrine establishes
that a court is precluded from construing the state law here.

                                    C

      The Supreme Court and Ninth Circuit precedent described
above also dispose of the majority’s argument that construing
WFCA to analyze preemption is the same as reaching the
merits of Masserant’s WFCA claim. It is evident that the
merits of a dispute pose analytically distinct questions from
the question of who has the power to decide a particular legal
question. Cf. First Options, 514 U.S. at 942. As
demonstrated in Rawson and Burnside, analyzing the state
law at issue is the only way to decide whether a state cause of
action brings a claim that is “independent of any right
established by contract, or, instead, whether evaluation of the
. . . claim is inextricably intertwined with consideration of the
terms of the labor contract.” Lueck, 471 U.S. at 213. It is our
task to determine what entity has the power to decide the




     21
       To the extent that analogies to primary jurisdiction and arbitration
are relevant, these cases illustrate that courts should err on the side of
holding that state law claims are preempted. When protecting the primary
jurisdiction of the NLRB for example, the Supreme Court preempts any
claim that is even “arguably” within the NLRB’s jurisdiction. See
Garmon, 359 U.S. at 245. And the Supreme Court has long recognized
that the FAA preempts state rules that frustrate the “liberal federal policy
favoring arbitration.” See AT&T Mobility LLC v. Concepcion, 563 U.S.
333, 346, 352 (2011) (quoting Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 24 (1983)).
                 ALASKA AIRLINES V. SCHURKE                           69

merits of Masserant’s dispute.            Maj. Op. at 17; Lueck,
471 U.S. at 214.22

    In sum, Supreme Court and our precedent dictate that we
must understand the nature, or “legal character” of a state-law
cause of action before we can address the question whether
the cause of action has been displaced by the preemptive
force of the RLA. It is the majority that stands alone in
suggesting that the proper construction of state law is
irrelevant to whether a cause of action, brought under that
state law, is preempted by the RLA. Therefore, the
majority’s crucial presumption—that because of the RLA’s
unique forum preemption, courts may not consider state law
when deciding whether the RLA preempts a state cause of
action—is entirely meritless.

                                   IV

    The majority’s erroneous approach allows Masserant to
sidestep the RLA’s mandatory arbitral mechanism, and thus




    22
       Construing the scope of state law to determine the legal character
of Masserant’s claim is not a “peek” at the merits of her dispute. Cf. Am.
W. Airlines, Inc. v. Nat’l Mediation Bd., 119 F.3d 772, 775–76 (9th Cir.
1997) (holding that because judicial review of the decisions of the
National Mediation Board is limited to circumstances when the Board
“committed a constitutional violation or egregious violation of the RLA,”
a court may “‘peek’ at the merits” to determine if such an error has
occurred). A determination that Masserant’s claim requires an
interpretation of the CBA does not require any inquiry into the merits of
her claim—that she is entitled to reschedule vacation time. Masserant’s
ultimate ability to reschedule her vacation time remains unresolved.
70                ALASKA AIRLINES V. SCHURKE

is contrary to Supreme Court precedent and common sense.23
See Hawaiian Airlines, 512 U.S. at 252–53.

    The majority claims that because a court cannot look at
state law, it is limited to considering whether the claim, as
pleaded, constitutes a minor dispute. Maj. Op. at 29.
Therefore, the majority argues, we must take at face value
Masserant’s claims that WFCA gives employees the right to
reschedule vacation time regardless of any provision to the
contrary in the CBA. Maj. Op. at 29–30; see also Maj. Op.
at 24 (“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.’” (alteration in original)
(quoting Lingle, 486 U.S. at 407)).

    As shown above, the premises underlying this approach
are meritless. To the contrary, the Supreme Court has made


     23
       The majority claims that preemption here would permit federal
courts “to police the development of substantive state law,” by “inhibiting
the state from creating precedent on the meaning of its own statutes
through the ordinary process of state court appeals.” Maj. Op. at 34. This
is incorrect. For instance, if a state court merely needed to “look to” the
undisputed terms of the collective bargaining agreement to ascertain that
the employee was entitled to sick leave or other paid time off, the RLA
would not defeat the employee’s state-law claim, and a state court could
enforce the employee’s right to choose to use that time to care for a
qualifying relative. See Livadas, 512 U.S. at 125; Lingle, 486 U.S. at 407
n.7. Similarly, a state court would be free to construe WFCA in a
preemption analysis when the plaintiff is entitled to sick leave or other
paid time off under an employer policy. L&I and Washington courts are
merely precluded from deciding whether Masserant is “entitled to”
vacation time under the terms of the CBA, and whether she otherwise
complied with the terms of the CBA.
                   ALASKA AIRLINES V. SCHURKE                               71

clear that a plaintiff cannot avoid the RLA’s preemptive
effect based on artful pleading. Just as Rawson declined to
allow plaintiffs to avoid preemption by offering a colorable
interpretation of state law through artful pleading, 495 U.S.
at 371–72, the Court has generally refused to adopt a rule that
“permit[s] an individual to sidestep available grievance
procedures” through clever pleading, Lueck, 471 U.S. at 220;
see also Lingle, 486 U.S. at 411. As the Court noted in
Lueck, a gifted lawyer can readily reformulate a minor
dispute as a state cause of action, and “[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,” as a state tort claim for instance.
471 U.S. at 219–20. The insistence that a court must take a
plaintiff’s pleadings at face value “would cause arbitration to
lose most of its effectiveness, as well as eviscerate a central
tenet of federal labor-contract law under § 301 that it is the
arbitrator, not the court, who has the responsibility to
interpret the labor contract in the first instance.” Id. at 220
(citation omitted).24




     24
        No case cited by the majority, Maj. Op. at 23, supports the
proposition that a court must take a plaintiff’s pleadings at face value.
See, e.g., Espinal v. Nw. Airlines, 90 F.3d 1452, 1457 (9th Cir. 1996)
(holding that plaintiff’s state-law claims were not preempted by the RLA
after conducting a three-part analysis into the legal character of the claims,
namely: “(1) Does the CBA contain provisions that govern the actions
giving rise to the state claim? (2) Is the state statute ‘sufficiently clear’ so
that the claim can be evaluated without consideration of overlapping
provisions in the CBA? (3) Has the state shown an intent not to allow the
statute to be altered or removed by private contract?” (quoting Jimeno v.
Mobil Oil Corp., 66 F.3d 1514, 1523 (9th Cir. 1995))).
72             ALASKA AIRLINES V. SCHURKE

     In short, neither the Supreme Court nor we have been
hesitant to construe state law in order to determine the legal
character of a state-law cause of action, and have certainly
not taken the plaintiff’s formulation of a state-law complaint
at face value. The majority makes a crucial error in reasoning
that something about the nature of RLA preemption precludes
construing WFCA in order to determine whether a state-law
cause of action is actually a minor dispute.

                               V

    The Supreme Court has a well-developed body of case
law directing lower courts on how to conduct a preemption
analysis, both inside and outside the labor-law context. The
majority departs from this precedent on the grounds that
courts are precluded from considering state law in deciding
whether the state cause of action is actually a minor dispute
that requires resolution by the RLA’s arbitral mechanism. In
doing so, the majority allows plaintiffs to sidestep available,
federally-required grievance procedures. This approach is
contrary to Supreme Court guidance and Congress’s intent.
Because all minor disputes must be resolved through the
RLA’s mandatory arbitral mechanism, the key mechanism for
“minimizing interruptions in the Nation’s transportation
services,” Int’l Ass’n of Machinists, 372 U.S. at 687, I dissent.
