                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 21 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



 MATTHEW MCKINLEY, as an individual              No.    15-56010
 and on behalf of all others similarly
 situated,                                       D.C. No.
                                                 2:15-cv-02939-AB-JPR
                 Plaintiff-Appellant,

   v.                                            MEMORANDUM*

 SOUTHWEST AIRLINES COMPANY, a
 Texas corporation,

                 Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                   André Birotte, Jr., District Judge, Presiding

                          Submitted February 16, 2017**
                              Pasadena, California

Before: M. SMITH and OWENS, Circuit Judges, and HELLERSTEIN,*** District
Judge.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Alvin K. Hellerstein, United States District Judge for
the Southern District of New York, sitting by designation.
      Matthew McKinley, a former employee of defendant Southwest Airlines,

appeals from the District Court’s decision to grant Southwest’s Federal Rule of

Civil Procedure 12(b)(1) motion, which held that his complaint for overtime wages

under California Labor Code §§ 510 and 1194 was preempted by the Railway

Labor Act (“RLA”). As the parties are familiar with the facts, we do not recount

them here. We affirm the decision of the District Court.

      We review de novo a district court’s order granting a motion to dismiss on

preemption grounds. See Reid v. Johnson & Johnson, 780 F.3d 952, 958 (9th Cir.

2015). We have articulated a two-step inquiry to analyze RLA preemption of state

law claims:

      First, a court must determine whether the asserted cause of action
      involves a right conferred upon an employee by virtue of state law,
      not by a [collective bargaining agreement (“CBA”)]. If the right
      exists solely as a result of the CBA, then the claim is preempted, and
      [the] analysis ends there. If the court determines that the right
      underlying the plaintiff’s state law claim(s) exists independently of
      the CBA, it moves to the second step, asking whether the right is
      nevertheless substantially dependent on analysis of a collective-
      bargaining agreement. Where there is such substantial dependence,
      the state law claim is preempted by [the RLA]. If there is not, then
      the claim can proceed under state law.

Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1032–33 (9th Cir.

2016) (citations and internal quotation marks omitted).




                                         2
      McKinley’s complaint purports to base his right to overtime wages in state

law, independent of the CBA. See Cal. Lab. Code § 510 (“[A]ny work in excess of

40 hours in any one workweek . . . shall be compensated at the rate of no less than

one and one-half times the regular rate of pay for an employee.”).

      However, the complaint also implicates multiple provisions of the CBA. For

example, it alleges that “Defendant did not calculate and/or factor all remuneration

earned by Plaintiff and Class Members in their regular rate of pay, including non-

discretionary incentive pay and shift differential pay.” First Amended Complaint

¶ 17. These references to “regular rate of pay,” “non-discretionary incentive pay,”

and “shift differential pay” all implicate the CBA. The reference to “all

remuneration” further implicates shift-trade pay, holiday pay, inconvenience shift

premiums, and multiple starting time premiums, all matters covered by the CBA.

See, e.g., CBA Art. 6, ER at 127–31; Art. 7, ER at 132–35; Art. 9, ER at 138; Art.

13, ER at 144–45; Art. 14, ER at 146–47; Art. 22, ER at 161; Art. 28, ER at 172–

86.

      The District Court therefore correctly determined that “[i]n order to assess

Plaintiff’s broadly-alleged claim, the Court would have to examine each form of

pay provided by the CBA, determine when that pay was due, and then decide

whether the pay should have been included in Plaintiff’s regular rate.” McKinley v.



                                         3
Sw. Airlines Co., No. CV 15-02939-AB JPRx, 2015 WL 2431644, at *6 (C.D. Cal.

May 19, 2015). Thus, the District Court also properly held that since the resolution

of the claim requires interpretation of the CBA, the complaint is preempted. See

Air Transp. Ass’n of Am. v. City & Cty. of S.F., 266 F.3d 1064, 1076 (9th Cir.

2001) (“[S]tate law causes of action that depend upon the interpretation of CBAs

are preempted because the interpretation or application of existing labor

agreements are the exclusive jurisdiction of the arbitrational bodies created by the

RLA.”).

      McKinley’s argument that the Court need only “look to” the CBA rather

than interpret it is not persuasive. The issue raised by McKinley’s complaint is

what components of pay should form the basis of the overtime wage. To answer

that question, we necessarily will have to interpret the CBA, not merely look at it.

The cases on which he relies are distinguishable. They involve the adequacy of

CBA remuneration compared to the requirements of California’s regular rate

standards, not how that rate was computed. See Lujan v. S. Cal. Gas Co., 96 Cal.

App. 4th 1200, 1210 (2002) (“Thus, the issue is not how to resolve a dispute over

the interpretation of the [rate], but a legal question of whether the [rate] complies

with state law.”); Controulis v. Anheuser-Busch, LLC, No. CV 13-07378-RGK

AJWx, 2013 WL 6482970, at *2 (C.D. Cal. Nov. 20, 2013).



                                           4
      For the foregoing reasons, we affirm the District Court. Because we lack

jurisdiction, we need not address whether McKinley is exempt from the California

Industrial Welfare Commission’s Wage Order No. 9.

         AFFIRMED.




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