*1 disposition above, more than a trivial amount. Helmuth as- we need address serts, however, remaining that the in these proposed class contentions. pending might action contain Florida REVERSED and REMANDED. members, as few as several hundred each meaningful whom could recover relief
roughly $100.3 parties’ dispute need resolve the
We point. enough It is conclude right damages waiver seek value,
future class actions has some and it plainly Very does. few class members INC., ALASKA AIRLINES an Alaska would bother to file their own individual corporation, Plaintiff-Appellant, (or actions to recover minimal non-exis tent) damages statutory actual dam Judy SCHURKE, ages $1,000. capped at For capacity her official small-dollar as Director these, of the of Washing claims like even under a statute State Department ton of Labor and Indus fee-shifting provision, action a class tries; Smith, in Elizabeth her official only is often the realistic means of obtain capacity Employment as Standards ing any monetary recovery. Shutts, See Program Manager of the State of 2965; 472 U.S. at Crawford, Washington Department of 201 F.3d at Cutting off access to a Industries, Defendants-Appellees, procedural tool that may offer the obtaining monetary realistic means of re Flight Association Attendants-Com deprived lief the absent class members of America, munication Workers AFL- here, something of might value if it even CIO, Intervenor-Defendant-Appellee. relatively be worth little. The fact class members required give up were No. 13-35574 anything at all in exchange for worthless United Appeals, States Court of injunctive precluded relief approval of the Ninth Circuit. fair, reasonable, settlement as and ade quate 23(e)(2). under Rule Argued May and Submitted Seattle, Washington challenges Helmuth the reasonableness January Filed grounds, settlement other such disparity between what the named plaintiffs got and what the rest the class received,
members and she contends
addition that the class could be certi- 23(b)(2).
fied Rule In light of our parties pursue damages overlook the fact the settle- class action under ment also considerably waives absent class members’ law could be more valuable than pursue damages pursue damages class action such law, FDCPA, they claims under so have not ex- as no court of which are aware we plored analogues damages state-law cap held that the FDCPA’s damages FDCPA preempts permitting contain similar class action larger state statutes caps. cap, recovery. States without such a *2 (argued) Hutcheson
Mark Andrew Francis, Wright Davis Tremaine Rebecca LLP, Seattle, Washington, for Plaintiff- Appellant. Tacoma, (argued),
James Paul Mills Washington, Defendants-Appellees. (argued), Phair Barnard Kathleen Iglitzin Campbell Barnard Schwerin & LLP, Seattle, Washington, for In- Lavitt tervenor-Defendant-Appellee. WALLACE, Before: J. CLIFFORD KLEINFELD, and J. ANDREW CHRISTEN, Judges. Circuit MORGAN by Judge CHRISTEN Dissent OPINION KLEINFELD, Judge: Circuit Senior This is a Labor Act decide, case, the merits case. We entity upon decide but which should merits, Washington, State Adjustment System Board established pursuant bargaining agree- off, to a collective entitled to time child, ment. entitled to use it for just a sick for her own illness or vacation.1 Facts. disagreed the airline Though became between *3 to interpret how her They entitlement. do union, agency the airline and a state and it dispute not that she was entitled to seven dispute arises out of a between a flight days of vacation leave. But she had sched- attendant and the airline about her sick it for uled December. The airline claimed attendant, flight leave. The Laura Masser- December, she could it in use but ant, toMay, called sick in care for her Masserant claimed under the Wash- son proposed who was ill. to She take two statute, ington she was entitled to use it days off as sick to care for him. But May for her child’s illness. Masserant up she had used all her sick leave. She had would be to more sick leave in her, coming vacation leave but vacation June, and the retroactively airline liberal- leave is scheduled the October before the its policy ized so that she could use it in year in which it is to be used. Masserant May, that, but even with she still did not leave, had cashed out most her vacation enough have sick leave to cover the time had all remaining and scheduled her vaca- she off she in May. agen- needed The state December, tion leave for so she had none cy Washington that administers the stat- May. available to her in If Masserant had agrees interpretation ute with Masserant’s sick, despite having called up used all Washington statute. leave, her sick she would have accumulated The Washington statute does not create “points.” Under the collective off, paid an entitlement to time sick leave agreement between her union and the air- or It employee otherwise. limits an line, if flight calls in áttendant sick too may whatever her entitlement be “under many using up times after all her sick bargaining agree- of a terms leave, accumulating many points, too she is or employer policy.” requires ment And subject graduated discipline—counsel- employee taking “[t]he leave under ing, for warning, enough points, termi- the circumstances in this described section nation. collec- comply must terms Masserant claimed an entitlement to use bargaining agreement employer or tive her December vacation leave for her leave, policy applicable except to the for being illness charged child’s without any relating terms to the choice of leave.” points, Washington Family Care Act. That state does not Flight entitle an The Alaska Airlines-Associated if employee any employee bargaining agree- leave. But Attendants 49.12.270(1): (b) spouse, parent, parent-in-law, Wash. Rev. Code or grandparent employee who has a If, bargain- under the terms of a collective emergency serious health condition or an ing agreement employer policy applica- or condition. employee, employee ble to an is entitled employee may An take advance leave off, paid to sick leave or other time then an employee until it has been earned. The tak- shall allow an to use ing leave under circumstances de- any employee’s or all of the choice of sick comply scribed this section must with the leave or other time off to care for: bargaining agree- terms of the collective (a) A child of the awith health employer policy applicable ment or to the requires leave, condition that treatment super- or except relating for terms to the vision; choice of leave. days, ment entitles use available attendants trade vacation within denoted, limits. to take care of a stated however provides expressly sick It that “sick child.2 fail, they cannot do What without for of a family leave” is usable illness notice, up.4 They have to call in show member, employee, just and that prior sick a certain number of hours availability family to care departure flight,5 of their scheduled most liberal members is as broad “the it too often or else suffer “points.”6 do flight of the States in which attendants are graduated discipline if many There is too points domiciled.”3 accumulate. “Points” are deleted for attendance,7 subsequent periods proper parties is not between no action is taken the first few about whether could take points,8 but Masserant’s available and un- *4 leave, but when. The collective used sick leave have covered her would is stuffed full of limitations to for day sought the two absence she in plane being prepared assure that a when May. Masserant have called in sick could takeoff, flight for number of requisite despite lacking available sick three important attendants are on board. The flight hours for before each which she was part, for purposes, are the scheduled, apparently but the airline would scheduling use of vacation points against have assessed her for ab- Flight get days leave. attendants after sence without available leave. She wanted days year, years, their first after five days days to take two from the seven days days years, after 10 and 35 after 18 vacation leave she De- had scheduled post years. The airline has to a list of cember, points. to But avoid the airline available times October 1 of vacation permit her to take would her Decem- preceding year. Flight attendants have May. ber time in vacation Vacation leave is 15 days sign periods “banked,” is, -and vacation up, treated as an entitle- granted seniority Flight ment, are on a basis. January exchanged and can be may 2. "Sick leave be ... pursuant designated 5. "Sick calls be used must made to the (2) applicable Company poli- Company representative State law at least two hours and/or cy- (3 Company policy, prior prior Pursuant no at- check-in hours scheduled points departure)." tendance are for assessed an absence (zeropoints per day),” called in for a sick child example, equals 6. For a "No Show” 1/2 points, Using collective-bargaining "Reported Quarterly 3. "Whenever a the new Illness child, equals points, "Report- refers to Point a sick it is understood Reduction” a that this placeholder ‘family Using Quarterly is a for member.' ed illness or With the after without agreement, equals Company Point Association’s Reduction” and will between 1/2 apply points, "Emergency Drop” equals the most liberal of the laws of the and an states 1/2 Flight point. in which Attendants are domiciled in 1/2 determining appropriate definition of 'family When member.' this definition is quarter during de- "For each which calendar a termined, including any subsequent Flight amend- quar- Attendant is active for the entire pursuant changes ments in law or in the chargeable during ter no and has occurrences law, interpretation company (2) will quarter, points two will be delet- entire publish the definition distribute it to and Flight ed from the Attendant’s accumulated Flight (0). Attendants.” points until the total reaches zero Time on leave of absence will not be counted toward absence, improvement.” Flight record “In all cases Attendant designated be required Compa- will to call the ny representative,” [points]: 8. "0-4 No action taken.” 1/2 points for cash of the scheduled vaca- are assessed for an advance absence called in tion, child,” flight cannot take the for a but attendant sick but it is not obvious how he Though time off advance the time slot far this reaches. sick leave can previous she scheduled the autumn. Mas- clearly child, be used to for a no care sick days explicit serant had taken of vacation such provision four made vacation and out 21 when days cashed leave suggests evidence that vaca- sick, got leaving her tion child seven flight cannot be so A mixed. days previous she days had scheduled fall attendant can trade vacation attendant, for vacation in December. She claimed en- another flight subject to a dead- instead, May titlement to it in take line approval. flight And a attendant the Washington statute. can to 4 up points accumulate for ab- 1/2 action, disciplinary senteeism with no matter, practical As 2 points quarter per subtraction thereaf- off to take time care for her quarters ter which no there are sick penalty though child even she without occurrences, chargeable despite the ab- available, no sick leave because for a sence available leave. flight points, attendant’s first there is 1/2 penalty. flight If gets attendant too Analysis. many points, they by good can be reduced year. attendance the next *5 The issue before us is not whether Mas- leave, is to serant use her vacation union, Masserant and her the Associated December, toMay, scheduled care Attendants, Flight disagreed the air- with Though for her sick child. is what the position. But of grieving line’s instead it about, case is all it is not posed the issue bargaining agreement collective The us. issue before us is to limited grievance procedure, they an adminis- filed is, Railways preemption, Labor Act complaint trative with the of State Wash- or whether the state administrative board ington Department of Labor and Indus- bargaining agreement the collective griev- The Department tries. determined that procedure ought ance to decide whether to was entitled use her Decem- to Masserant is entitled so use Decem- ber to vacation leave care for her child in May. ber vacation This is of one May. The airline was fined for violat- $200 those to the Thomas cases which Reed airline, ing Masserant, the statute. The you you “If think that applies, Powell line agreed delay and the union have to thing can think inextricably about at- appellate proceedings and other so that something to thinking tached else without this preemption Labor Act dis- to, of thing the which is then attached pute may adjudicated. be The district you legal have a mind.”10 granted summary judgment against court the airline’s We now claim. important The most fact about this case review the district court decision novo.9 de Washington is circularity the the between of the bargaining
Some
relevant
statute
the
collective
agreement
bargaining
agreement.
employ-
and em-
The statute makes the
(as
ployer
not entirely
opposed
customs are
clear cut.
ee’s
to leave
entitlement
for)
provision says
A
may
dependent
that “no attendance what the leave
be used
Arnold,
Espinal
Symbols
Nw.
10. Thurman W.
Gov-
The
(1935) (attributed
ernment
Thomas
Powell).
Reed
agreement.
proceed
union could
bargaining
serant and her
on the collective
bargaining agreement
grievance procedure,
the collective
but whether the
And
of leave to whatever the state
expands
agency
procedure
use
is an alternative
of the
point
statute
despite Railway
to them
available
says.11
that,
if
is
enti-
appears
be
preemption.
Act
leave,
whether denom-
tled
take
Railway Labor Act was enacted
“The
kind,
any
or
other
then
inated sick leave
interruption
any
...
to com-
avoid
[t]o
to care for a sick
be
used
operation
any
or to the
carrier
merce
relative,
just
employee himself. But
requires
engaged therein.”12 statute,
under
entitlement
agreements
carriers make
settle dis-
bargaining
to be defined
putes with
to avoid inter-
their
This
employer practice.
or
de-
ruption to
It
as
covers airlines
commerce.13
Washington statute on
pendence of the
it includes man-
well as
And
“a
railways.14
bargaining agreement
estab-
datory system of
resolution.”15
that leave
lished
its command
“shall
“Congress’s
RLA
‘to
[was]
intent
governed” by the collective
keep
disputes out
labor
[carriers’]
employer policy.
or
process,
To
this
facilitate
courts.”16
as a
claim can be resolved
“mandatory
provides
RLA
arbitral
grievance
under the collective
disputes ‘growing
mechanism to
out
handle
“any contro-
agreement.
provides
It
interpretation
grievances
or out
versy
meaning
...
application
agreements concerning
or
present-
agreement”
terms of this
shall be
rules,
working
pay,
rates of
condi-
designated
to a
individu-
grievance
ed as
”17
tions.’
al,
appealable
person’s decision
with that
Disputes
regime
general-
are
Adjust-
Flight
Attendants’ Board of
major or
ly characterized as
minor.
either
(two
appointed by the un-
ment
members
*6
“[M]ajor disputes
to create contractu-
seek
ion,
company) and to mediation
by
two
rights,
disputes
al
minor
enforce
(National
or arbitration
Mediation Board
disputes
defining
so
about
Railway
provides
Labor Act
them,”18
names,
rights guaranteed by
bargain-
party
each
strikes
list of seven
and
three).
ing agreement
minor
question is not whether Mas-
are
Minor
disputes.19
Airlines,
Fennessy
pursuant
...
16.
91 F.3d
11. "Sick
be used
v. Southwest
1359,
(9th
1996)
applicable
(emphasis
origi-
State law.”
in
1363
Cir.
nal)
Lewy
Transp.
(quoting
v. Southern Pac.
Int’l,
Int’l
12.
Serv.
Inc. v.
Bhd. of
Aircraft
Co.,
1281,
(9th
1986)).
799 F.2d
1289
Cir.
Teamsters,
1069,
779 F.3d
2015) (en banc)
151a)
§
(quoting 45 U.S.C.
Norris,
248,
17.
512 U.S.
S.Ct. 2239
(internal
omitted) (alterna-
quotation marks
153, First).
(quoting
§
45 U.S.C.
original).
tion in the
152,
§
First.
13. 45 U.S.C.
Corp. Ry.
18. See
Rail
v.
Labor Execs.
Consol.
299, 302,
2477,
Ass’n., 491 U.S.
109 S.Ct.
Norris,
v.
14. Hawaiian
Inc.
512 U.S.
(1989) (quoting Elgin,
& E.
L.Ed.2d 250
Joliet
2239,
246, 248,
114 S.Ct.
129 L.Ed.2d
723,
Burley,
Ry. Co.
U.S.
(1994).
(1945)).
21. 45 U.S.C. 151a(4)-(5). 26. 219-20, at 1904. Id. 105 S.Ct.
22. 369 U.S.
95,
571,
82 S.Ct.
23. 103-04, at Id. S.Ct. 571. 28. Inc., Lingle Norge Magic Chef, Div. v. 399, 1877, 100 486 U.S. 108 S.Ct. L.Ed.2d 24. 410 (1988). (1985). L.Ed.2d undis- retaliatory discharge wage The amount due was rate.36 from
employees
already
paid,
in fact
been
claims,
puted and had
compensation
was
filing workers
immediately.37
filed a
albeit not
She
reason
preempted.29 The
not to be
held
agency seeking
against
action
the state
a
“indepen-
claim was
that the state law
was
agency’s enforcement
declaration that the
agree-
bargaining
dent”
collective
preempted by the National La-
policy was
All
the fired
that mattered
ment.30
Act.38
bor Relations
We ruled
claim was
employee’s state law
whether
preempted,39
not
but
policy was
were re-
discharged
the em-
was
and whether
she
held that
The Court
state
versed.40
interfere with
ployer’s motive was
disadvantaged
agency’s policy
workers
filing
compensation
of her workers’
deter
had
into
who
entered
retaliatory discharge claim
This
claim.31
unrepresented
agreements, since
workers
“purely factual
would be resolved
enforcement,41
get agency
could
so the Na-
court to con-
requiring
inquiry”
tional
Relations Act antidiscrimi-
bargaining agree-
strue the
agen-
provision preempted
nation
the state
ment.32
cy
refusing to enforce a claim on
from
Hawaiian
Livadas v. Bradshaw33 and
preemption.
account of
The collective bar-
Norris,34
quarter
from
almost
Airlines
nothing
gaining
said
about
guidance
our most recent
century ago, are
wages
when the
to fired
due
They expand
indepen
from the Court.
that a claim
paid.
had to be
The Court held
right exception to
Rail
dent
broad
under state law was
be-
preemption.
way Labor
wages really
cause the
immediately
were due
was one
state law
Livadas,
required an em-
a state law
“entirely independent” of
understand-
ployer
employee’s wages
fired
pay
ing
bargaining agreement,
of the collective
company practice
immediately, but
and the amount the
was entitled
office,
from the central
which
send a check
undisputed.42
to was
days
a few
after
termi-
would arrive
nation.35 The
filed
claim
bargaining agree-
Because
employer in the
against
appropriate
her
silent,
Livadas created
ment was
ten-
agency, citing
agency,
but the state
previously
sion
with most
articulated
policy,
intertwined”;
refused
en-
“inextricably
its nonenforcement
standards:
re-
against
“analysis”
bargain-
her
be-
quires
force her
the collective
terms;
to look to
ing agreement’s
“independent”
cause it would have
the collective
factual”;
“purely
anyone
requiring
determine
112-13,
2068.
29.
at
36.
Id. at
Id.
S.Ct. 1877.
407-10,
1089 agreement. Citing “construe” to tleblower Protection Act” because he re- Livadas holds that Lueck43 Lingle,44 fused to certify plane thought he was Livadas, so preemption federal cannot not be read unsafe.49 As in the Court held broadly as to “pre-empt nonnegotiable though even the basis for indepen- an conferred on individual dent state give law could rise to a law,” regardless grievance as matter pursuant to the collective bar- the underlying whether facts could also gaining agreement, that not imply did given grievance to a only have rise grievance brought, could be to the bargaining agreement.45 collective In the exclusion of a claim state court.50 The context of a claim “only where the reference source” of the em- fired bargaining to the collective agreement enforce, ployee sought protection have been blowers, would determination of un- whistle was state law.51“[W]here rate, disputed fact wage Livadas’s the resolution of a state-law claim depends “bare fact that a collective interpretation an of the the claim though will be its is preempted,”52 long consulted” but “as as the state- meaning undisputed, was not re- would law claim can be resolved without inter- quire preemption.46 itself, The determination preting the claim is employee was to a ‘independent’ agreement.”53 State penalty having “entirely been “immedi- law independent” claims ately” calendar, depended only on a bargaining agreement are not “entirely independent under- subject standing embodied in the bar- Act LMRA arbitration.54 gaining agreement.”47 agency would quite We have opportunities had a few merely “look to” the in the decades since these to try decisions rates, agreement for wage which was them, apply and have vary- articulated undisputed.48 ing adjudication. formulas for doing, so
The other
recognized
case from the we have
that distinguishing
term,
Hawaiian
Inc. v. preempted from non-preempted
1993
un-
claims
Norris,
involved an
who claimed
“is
always
der state law
not a task that
”55
he was fired
violation of a state “Whis-
‘lends itself to analytical precision.’
Lueck,
43. Allis-Chalmers
Corp.
deprive
v.
471 U.S.
remedies
202,
1904,
(1985).
law.”).
105
85 L.Ed.2d
S.Ct.
206
available under state
Inc.,
44.
Lingle
Chef,
Norge
Magic
Div. of
258,
51. Id. at
(quoting
S.Ct. 2239
114
An-
399,
1877,
486 U.S.
100 L.Ed.2d
Co.,
drews v. Louisville & Nashville R.
406
(1988).
410
320, 324,
1562,
U.S.
32
S.Ct.
L.Ed.2d 95
(1972)).
123,
Livadas,
45.
47.
Id. at
fundamental
to address all three.
sufficiently independent
needed
right is
the state
agreement
bargaining
of the collective
In
which
identified an
the cases
we
preemption of the Nation-
the broad
avoid
independent
claim that was not
state
Relations
and
al Labor
frequently
preempted, most
question requiring judgment
Act. That is a
was the extent to which the collective bar-
par-
in the
facts and
about the
to be
gaining agreement had
considered
case,
merely
cannot be resolved
ticular
and
claim
whether
the state
was so
decide
varying
or another of the
by relying
one
preempted.
independent as not
be
phrases
the cases: “inextrica-
disability
words and
discrimination claims
California
terms,”
intertwined,” “analysis bly
preempted
Espi-
Jimeno and
were not
independent,” “interpretation,”
nal,
“entirely
because the collective
general
and “look to.”
antidis-
contained
clause,
the state discrimi-
crimination
our
developed,
have
tool
We
without
nation claim could be evaluated
making
judgment,
that unavoidable
agree-
construing
the collective
background
three-step decision tree. The
Century-
v.
ment.57 Balcorta
Twentieth
preemption
Supreme
is the broad
Corp.,
Film
that a California
Fox
we held
Our
Court decisions discussed above.
requiring
picture employees
motion
says
three-step decision tree
when the ex
discharge
to be
hours of
within
ception
for an
cursory
preempted,
not
exami-
can
be made:
state
bargaining agree-
nation of
(1)
court must consider:
whether
[The]
say
ment showed
did
what
govern
the CBA contains
“discharge”
discharged
meant or when a
claim,
giving
actions
rise to
state
paid.58
to be
employee had
state law
so, (2)
and if
state
“require
us even to refer to
did
sufficiently
articulated a standard
clear
bargaining agreement,
let
the state claim can be evaluated
interpret
In Cramer v.
alone
it.”59
Consol-
considering
overlapping pro-
without
Inc.,
Freightways,
idated
a California law
(3)
visions
whether the
prohibiting two-way mirrors that allowed
has shown an
its
intent
to allow
preempted,
observation of toilets was not
prohibition
to be altered or removed
employees’ privacy
because the
claims
A
private contract.
state law
will
arguably
were “not even
covered
only if
the answer to the first
bargaining agreement.”60
“yes,”
and the
answer
v.
Corp. per-
Burnside
Kiewit Pacific
either the second or third is “no.”56
goes
the furthest of
of our cases
haps
“yes”
question,
rejecting preemption,
employ-
Since
answer
the first
since the
two,
a “no” to
compen-
either
ees’
law claim additional
other
Airlines,
Sys.,
Espinal
56. Miller
AT&T
F.2d
Network
57.
v. Nw.
90 F.3d
(9th
(9th
1996); Jimeno,
1988) (footnote omitted);
Cir.
see
Cir.
Espinal
also
v. Nw.
90 F.3d
(9th
58.
1091
daily meetings
for
sation
and travel time
The
words used
what
describe
distin-
guishes
an
right
was addressed to some extent in
are not
the collec-
talismanic, and are not
from
consistent
bargaining agreement.61
tive
But state law
case to
Supreme
case. The
Court has used
provided
applied
that the state rule
“un-
“analysis
terms,” “construe,”
requir-
bargaining agreement
less the collective
ing “interpretation,”
phrases,
and other
expressly provides otherwise.”62
union
“consult,”
and we have likewise used
“in-
opt
could
out of the state
at,”
terpret,”
“analysis,”
“look
and others.68
rule,
law
but
the collective bargaining
recognized
have
opacity
We
of these
expressly
so provide.
did
attempts to draw a line
indepen-
between
required only
Thus the state rule
a look at
dent and intertwined state claims. In Bal-
bargaining agreement
the collective
to see
corta, we called the line
“hazy.”69
express
whether there
“opt-out,”
was
Burnside,
Cramer we said it was not
and no further
of it was needed to
“a line that
itself to analytical preci-
lends
adjudicate
claim.
the state
our
We limited
sion.”
today
decision: “Our decision
reaches
we
up
What
with from all
wind
these
opt-out, not opt-in statutes.”63
cases is
judgment,
the need to exercise
hand,
On the other
we held that
a mechanical
part
rule. Our three
test and
state claim
Firestone v.
was
phrases
only “hazy”
words and
establish
Southern
Gas Co.64 The state
and indeterminate line
indepen-
between
California
law claim
for
overtime
time and a
rights
dent state
and state
inextrica-
half, but
an exemption
bly
had
bargain-
collective
intertwined
the collective
case,
ing agreement. In
bargaining agreements
that met certain
sounder
is that
view
the state law
and the
required
terms.65 Because the claim
“the
bargaining agreement
are indeed
in
[to] be
inextricably intertwined.
terpreted to
...
determine
whether Cali
fornia’s
exemption provision
overtime
ap
Washington
says
that what-
plies,” it
sufficiently “independent”
was not
family
ever
care
mem-
distinguished
avoid
We
depends
bers the
on her
preemption.66
Livadas because there the collective bar
bargaining agreement.
We held
gaining agreement
had
terms
Burnside that “if the
solely
exists
needed to be
as a
result
then the claim is
“interpreted.”67
(9th
2007).
See,
61.
(1)
bargaining agreement
to
If,
lective
has
of a collective
under the terms
analyzed
employee
to see whether the
is
bargaining agreement
employer poli-
or
paid
to
If
the em-
entitled
as
Firestone.
cy applicable
employee,
to an
leave
flight
ployee
to sick leave or other
is entitled to leave
is entitled
attendant
off,
paid
employer
bargaining agreement,
shall
time
then an
under
collective
any
or all of
employee
allow an
use
she can
it to care for her son when he
use
not,
leave or
choice
sick
ill. If
not.
us to
employee’s
is
The statute directs
paid
other
time off
care for:
bargaining agreement
the collective
to de-
(a)
employee
whether the
is entitled
termine
A
child of the
with
any
leave.
requires
health condition that
treat-
supervision;
ment or
or
test,
part
right
Under the
“if the
three
(b)
spouse, parent, parent-in-law,
solely
exists
as a result of the
then
or grandparent
of the
who
preempted,
the claim is
and our analysis
or
a serious health condition
an ends there.”73
no
Since the statute creates
emergency condition.
leave,
right
any
of paid
kind
and condi-
An employee may
expansion
rights upon
not
tions its
take advance
em-
ployee
leave until it
under
has been earned.
em-
entitlement
ployee
bargaining agreement,
analysis
taking
under the circum-
“the
ends
right
stances
in this section must
there.” The
to leave
this case is
described
comply
“substantially dependent
analysis
terms of the
of a
bargaining agreement
employer poli-
collective-bargaining agreement.”74
or
There-
cy applicable
except
preempted.
fore it is
relating
terms
to the choice of leave.
agency argue
The union
the state
(2)
Use
leave other than sick leave
bargain-
that no
of the collective
“analysis”
child,
or
off to
for a
other
time
care
ing agreement
is needed because of “the
grand-
or
spouse, parent, parent-in-law,
undisputed restrictions” the collective bar-
parent
the circumstances de-
gaining agreement
pre-
places
use
governed
scribed in this section shall be
they
scheduled vacation leave. Because
do
appropriate
the terms of the
collec-
not
that Masserant was not enti-
employer
tive
or
tled to use her vacation leave scheduled for
policy,
applicable.72
December to care for
sick
child in
expressly
May, they argue,
statute
limits the
necessary.
no
is
They
establishes
“entitled” to
argue that because a
“look
mere
to”
the terms of a collective bar-
bargaining agreement
“under
gaining agreement
employer practice
policy.”
establishes
she is
Burnside,
Caterpillar
(quoting
serant
the
terms
the
dissenting
Our
colleague
heavily
relies
statute,
“solely”
arise
out
the statute.
Kobold,75but,
on our
in
recent
decision
argument
The
for Masserant seems to Kobold says, that case
was “similar
“analysis”
no
be that
the collective
in
pertinent respects”
bar- Livadas
all
because
gaining agreement
it
is needed because
by
was controlled
outcome
the calen-
plain
undisputed
dar,
and
not
bargaining
she is
enti-
not the
agree-
collective
argument
tled to
it. That
ment.76
expand Railway
Kobold
not
did
First,
is mistaken
ig-
for two reasons.
it
preemption.
Oregon
The
purpose of
required
nores the
employer
pay
distinction be-
the deducted
“analysis”
“looking
tween
mere
days
amount within
seven,
at.”
when
purpose
distinguish independent
is to
wages
days”
were due.77“Seven
could be
rights
state
from
intertwined with
counted out
a calendar and
needed
bargaining agreement.
bargaining
agree-
of the collective
purpose
distinguish
Likewise,
is not to
hard from ment.
Kobold
held
easy analysis.
claim,
“Analysis,”
fiduciary duty
the context of
relying
breach
determining
Oregon statutes,
two
preempted
in-
was not
whether
dependent
statutory provisions
create
“[t]he
agreement,
impose
refers
the state
on an
duties
inde-
contrast,
claim
logically
pendent
By
cannot
of a
be determined inde-
CBA.”78
Washington statute CBA; preempt- it is not dependent upon the pendent conditioned and duty creates a ed; pursue be allowed to agreement. and she should on the collective judicial in the state administrative not mean Preemption of course does reasons, respectfully I For process. these to use her dissent. to care for May time vacation December that the her son. All it means is I. claim is not use her vacation leave whether she could Labor Act. for this scheduled time advance by the purpose is to be determined a Personal Leave Com- Masserant filed in the bar- process resolution Washington Department of plaint with the gaining agreement, argued Labor & Industries which she All is which process. resolution we decide parties’ terms of CBA violate *13 used, process must be dispute resolution at the first level prevailed the WFCA. She it reach. what result must Department’s process of the administrative Department issued a notice and the $200 by rejecting The district court erred denying of infraction to Alaska Airlines preemption. Accordingly, we reverse and request. Alaska Airlines filed this her resolution so that appropriate remand for seeking a declara- action federal court dispute by process resolved the the can be the that Masserant’s claim and WFCA tion in the collective established are preempted choice-of-leave agreement. (RLA). See 45 by the AND REMANDED. REVERSED 151-188; § Rev. Code U.S.C. Wash. § agreed 49.12.265-.295.The district court CHRISTEN, dissenting: Judge, Circuit Masserant, union, and the her De- that recognized The court the district partment of Labor & Industries that the underlying claim is issue Masserant’s preempt RLA state enforcement does not what benefits the collective Masserant’s WFCA because WFCA it the provides, whether parties’ claims are parties’ the terms of the CBA violate CBA. Family Act. Washington Care Masserant court, appeal to our Alaska Airlines argues “non-nego- On the WFCA creates argues requires RLA rights” that Alaska Airlines and the tiable mandatory bargain away. litigate dispute To via AFA could not resolve CBA, claim, procedures outlined in grievance need not be CBA Masserant’s through rather than state administrative interpreted. parties agree that requires RLA that minor procedures. CBA identifies circumstances under which used, here, disputes, such one at issue scheduled leave be as the accrued and first be in the carrier’s using leave to care for an must addressed scheduled and, process is not of those internal resolution if employee’s sick child one there, view, Adjust my presented not resolved circumstances. district comprised ment correctly court Mas- Board workers and ruled WFCA, 184; if 45 Atchi management.1 serant asserts arises from the See U.S.C. 1410, 562-64, 94 disputes The RLA divides labor into "ma 107 S.Ct. L.Ed.2d 563 Atchison, (1987). arising Topeka “Major disputes” "those jor” disputes. are and "minor” Buell, 557, change Ry. 'out of the of collective & Fe Co. v. 480 U.S. formation Santa
1095
son,
Buell,
Fe
Topeka
Ry.
& Santa
Co.
and the claim
must be resolved under the
557, 563,
1410,
Id;
107
94
mandatory
480 U.S.
S.Ct.
RLA’s
arbitral mechanisms.
(1987).
preempts
L.Ed.2d 563
The RLA
see
512
Hawaiian
U.S. at
claims
(“[Claims
state law
interfere with the
114
S.Ct. 2239
Adjustment
jurisdiction
Board’s exclusive
only through
must be
RLA]
resolved
disputes.
to resolve minor
Hawaiian Air
mechanisms,
RLA
including
the carri
lines,
Norris,
246, 253,
Inc. v.
512 U.S.
114
dispute-resolution
er’s internal
processes
act
(1994).
If a
L.Ed.2d
adjustment
and an
by
board established
is based on
con
independently
claim
unions.”).
and the
Even if the
law,
CBA,
ferred
it is not
asserted
independently
does exist
Bradshaw,
preempted. See Livadas v.
step
at
two the court must “con
107, 125,
U.S.
S.Ct.
129 L.Ed.2d
sider
it is
nevertheless ‘substan
(1994);
Burnside v.
Kiewit Pac.
tially dependent
analysis
aof collective-
”
We
Burnside,
bargaining agreement.’
closely
examine
at 1059 (quoting Caterpillar
Inc. v.
Supreme
Court has cautioned that fed Williams,
386, 394,
“cannot
broadly
eral
laws
read
(1987)).
bargaining agreements.’
agreements concerning
pay,
Id. at
rates of
or
”
(quoting
S.Ct.
& T.S.L.R. Co.
working
(quoting
Detroit
conditions.’
Id.
U.S.C.
Union,
n.5,
Transp.
153).
U.S.
parties agree
the minor
(1969)).
was not right to work-free statutorily guaranteed step second be- preempted at Burnside’s though pur CBA- periods- even meal “unambiguously spe- cause the CBA to work-free ported to waive obligations parties’ rights and cif[ied]” periods). meal require interpreta- did not and therefore Balcorta, 1040; also tion. 832 F.3d at see Livadas, issue in Ko- at Like the (holding 1109-10 claim not Balcorta, at if has the bold, family required time for court is preempted to use her vacation' where here, statute, from a apply” it arises CBA are “read and WFCA, parties’ from the CBA. and not ambiguous”). nor uncertain “neither Service, Inc., Parcel Matson United Masserant asserts not B. The 2016), that a we held F.3d substantially analy- dependent on only “pe- work environment hostile of the CBA. sis the CBA and was not ripheral[ly]” involved analy- of the Burnside step The second interpretation preempted because whether requires “determinfetion] sis required. CBA Id. at 1134-35. was ‘substantially dependent’ right is state law who claimed Matson involved Burnside, 491 of a CBA.”3 on the terms subject to a work that she was hostile omitted). (citation apply To at 1060 environment, part supervi- because her test, court must “decide part way work” in a assigned “extra sors claim can be resolved at 1129. The male co-workers. Id. favored interpreting the CBA.” ‘looking] to’ versus employee’s claim employer argued that the (citation (alteration omit- original) Id. term “extra preempted was because the ted). “looking to” line between and her claim appeared work” the CBA is sometimes less than “interpreting” interpreting resolved without could be “ clear-cut, meaning con- but ‘when employee’s But the term. Id. at 1133. subject dispute, tract terms is claim was not hostile work environment that a will be consult- [CBA] the bare fact dependent upon consideration extra litigation of state-law ed the course assignments because her contention work claim to plainly require does disproportionately as- that extra work was (alteration in extinguished.’” original) Id. just to male one signed coworkers Livadas, at (quoting example ways in which the 2068); see Hawaiian S.Ct. argued male coworkers were favored. (“[A]s long at S.Ct. 2239 U.S. explained Id. the hostile work We claim can without the state-law be resolved claim was not at environment itself, the claim interpreting the Burnside’s, step because cor- “[t]he second ... ‘independent’ interpretation of the CBA ... [was] rect Lingle v. pre-emption purposes.” (quoting purely peripheral the relevant Inc., Magic Chef, U.S. Norge Div. respect assigning work.” Id. 399, 408-10, 100 L.Ed.2d 1134-35. *17 (1988))). case, Kobold, key In required Masserant’s where the state law wholly undisputed are also paycheck the CBA employers transmit deduc- analyzes ultimately step one to Although majority relies on conclude that Masserant’s two, preempted. step claim is claim in the context of Burnside’s As of require interpretation. May do Ting XUE, Petitioner, ill, when her child Masserant
had an accrued
vacation
scheduled
permits
December. The CBA
vacation
LYNCH,
Loretta E.
United States
leave to
be used
unscheduled
times
Attorney General,
circumstances,
certain
but does not ad-
Respondent.
dress whether vacation leave
be used
No. 15-9540
for an
flight
absence
to a
due
attendant’s
United States Court of Appeals,
own illness or a child’s illness. Because
Tenth Circuit.
nothing
“[t]here
the ... CBA to
interpret,”
the WFCA’s state-law
FILED November
substantially dependent
on the CBA.
As
January
Revised
pro
2017 nunc
Kobold,
See
ed, record, analyzed. much less On this I
conclude Masserant’s claim does not
“substantially depend”
CBA, and that it is not preempted under pronj* second Burnside. persuasive
There is force to Alaska’s
argument present that “crew absences
unique industry,” concerns the airline requisite
because “without the number of board,
flight a plane attendants cannot
take off.” But the limited before panel is the forum for proper resolv-
ing important underlying questions
raised Masserant’s claim. I would hold correctly that the district court con- Washington Department
cluded that the
Labor & enforcement Mas- Industries’
serant’s complaint preempt- WFCA is not RLA,
ed and that the correct forum resolving parties’ is the process.
state administrative