By Pension and Benefits Editorial Staff
In an en banc decision, a divided Ninth Circuit held that the Railway Labor Act did not preempt an employee’s claim premised on a state-law right to reschedule vacation leave for family medical purposes when that right to vacation leave was covered by a collective bargaining agreement. Here, the appeals court found that the employee alleged a violation of the Washington Family Care Act’s independent right to use banked vacation days, and her claim did not require construction of the CBA. Judge Ikuta dissented, joined by Judges Tallman, Callahan, Bea and M. Smith.
Vacation leave. In May 2011, a flight attendant asked for time off to care for her son who was ill. She had no sick days available, but proposed to take two of her seven days of accrued vacation leave. The employer denied the request, noting that, in accordance with the CBA, her vacation days had already been scheduled for use later in the year. The CBA did not allow scheduled vacation days to be moved for family medical reasons. Accordingly, the employee’s only option under the CBA was to take unscheduled leave to care for her son and thereby incur disciplinary "points."
The employee filed a complaint with the Washington Department of Labor and Industries (DOLI), alleging that the employer’s refusal to allow use of vacation days violated the Washington Family Care Act (WFCA). The WFCA guarantees employees the flexibility to use accrued sick leave or other paid leave for family medical reasons. Employees 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."
CBA dispute. The employer opposed the employee’s WFCA claim on two grounds. First it disputed DOLI jurisdiction, contending that her complaint was not an ordinary state-law claim but a CBA dispute in disguise, and therefore was reserved to the exclusive jurisdiction of the CBA’s grievance and arbitration mechanism. Second, the employer argued that requiring adherence to the CBA’s vacation-scheduling regime was not a prohibited restriction on "the choice of leave," but a permissible condition on earning leave in the first place.
For its part, the DOLI sided with the employee. Observing that the employee’s banked vacation time could be exchanged, used for personal medical leave, maternity leave, bereavement leave, or immediate cash-out, the agency concluded that the CBA’s limits on the use of banked vacation time served only to limit "the choice of leave," and were therefore void under state law. The agency did not address the employer’s jurisdictional argument, resting entirely on the interpretation and application of state law rather than on some disputed aspect of the CBA.
Preemption. Meanwhile, in separate litigation, the employer sought an injunction against the DOLI, asserting that the employee’s state-law claim was so bound up in a dispute over the terms of the CBA as to be preempted under the RLA. RLA preemption does not apply where the state-law claim can be resolved independently of any CBA dispute, and the district court concluded that the employee’s WFCA claim was unrelated to any dispute over the meaning of the CBA. Therefore, it denied the employer’s motion for summary judgment.
On appeal, the employer renewed its argument that the RLA preempted the employee’s WFCA claim. A divided panel of the Ninth Circuit agreed, and found the state-law action preempted because the right to take paid leave arises solely from the CBA.
En banc review. Thereafter, the appeals court voted for en banc rehearing to review the district court’s conclusion. It observed that the fact 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, did not itself create a CBA dispute. It began by reviewing the language of the RLA and the cases explaining the purpose and scope of RLA and LMRA § 301 preemption.
Interpretation of CBA. To determine whether a particular right is grounded in a CBA, the Ninth Circuit evaluates the "legal character" of the claim by asking whether it seeks purely to vindicate a right or duty created by the CBA itself. If a right is not grounded in a CBA, the appeals court asks 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. Thus, claims are only preempted to the extent there is an active dispute over "the meaning of contract terms."
Applying this approach, the appeals court concluded that the employee’s claim did not arise entirely from the CBA. Rather, she had alleged a violation of the WFCA’s independent state-law right to use banked vacation days. It was clear that the employee’s banked vacation days existed only by virtue of her having earned them in accordance with a workplace policy incorporated in the CBA. However, reliance on and reference to CBA-established or CBA-defined terms of employment did not make for a CBA dispute if there was no disagreement about the meaning or application of any relevant CBA-covered term of employment.
In this case, the meaning of every relevant provision in the CBA was agreed upon. More importantly, the parties agreed that the employee did, in fact, have seven days of banked vacation, which she could have chosen to use for a number of exigent, unscheduled purposes. Thus, the requisites of RLA preemption did not exist in this case, so the employee was entitled to pursue her state-law remedies
Dissent. In a lengthy dissent, Judge Ikuta argued that the majority had departed from the U.S. Supreme Court’s well-developed body of case law directing lower courts how to conduct a preemption analysis, and allowed the employee to sidestep "available, federally-required grievance procedures." Neither the Supreme Court nor the Ninth Circuit have been hesitant to construe state law in order to determine the legal character of a state-law cause of action, the dissent observed. Here, the majority makes a crucial error in reasoning that something about the nature of RLA preemption precludes construing the WFCA in order to determine whether a state-law cause of action is actually a minor dispute that requires resolution by the RLA’s arbitral mechanism, reasoned the dissent.
SOURCE: Alaska Airlines Inc. v. Schurke, (CA-9), No. 13-35574, August 1, 2018.
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