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RLA preempts Washington Family Care Act; employee right to leave based on CBA

By Ronald Miller, J.D.

The Railway Labor Act preempted the Washington State Department of Labor and Industries (DLI) from enforcing alleged violations of the Washington Family Care Act (WFCA), ruled a 2-1 Ninth Circuit, reversing the judgment of a district court. Here, the state statute directed reference to a collective bargaining agreement to determine whether an employee was entitled to any leave. Because, under the appeals court’s three-part test, the employee’s right to leave existed solely as a result of the CBA, her claim that she could use scheduled December vacation to care for her child in May was preempted. Judge Christen filed a separate dissenting opinion (Alaska Airlines Inc. v. Schurke, January 25, 2017, Kleinfeld, A.).

Sick leave. A flight attendant called in sick to care for her son who was ill. She proposed to take two days of sick leave to care for him, but she had used up all her sick leave. She had vacation leave coming to her, but she had cashed out most of her vacation leave, and had scheduled all her remaining vacation leave for December, so she had none available. If she called in sick, she was subject to accumulated “points” and graduated discipline under the CBA between the airline and union. She claimed an entitlement to use her December vacation leave for her child’s illness without being charged points, under the WFCA.

The WFCA does not entitle an employee to any leave, but provides that if an employee is entitled to paid time off, she may use it for a sick child, not just for her own illness or vacation. The employee and airline disagreed on how to interpret her entitlement. The airline claimed that she could only use it in December, but the employee claimed that under the WFCA, she was entitled to use it for her child’s illness. The union also disagreed with the airline’s position.

Preemption claim. Instead of grieving the dispute under the CBA’s grievance procedure, the employee and union filed an administrative complaint with the DLI. The DLI determined that the employee was entitled to use her December vacation leave to care for her child in May. The airline moved for summary judgment that the DFI’s enforcement activities against it were preempted by the Railway Labor Act. The district court granted summary judgment against the airline’s preemption claim.

Alternative procedure. The issue before the Ninth Circuit was whether the state administrative board or the CBA grievance procedure ought to decide whether the employee was entitled to use her December vacation leave in May. The point of the WFCA appears to be that, if an employee is entitled to take paid leave, whether denominated sick leave or any other kind, then the leave may be used to care for a sick relative, not just the employee himself. But entitlement to leave, under the statute, is to be defined by the CBA or employer practice. The employee’s claim could be resolved as a grievance under the CBA. However, the question was not whether the employee and her union could proceed with the grievance procedure, but whether the state agency was an alternative procedure available to them despite RLA preemption.

There is an exception to the RLA’s broad preemption for independent state rights. However, the Supreme Court’s decision in Allis-Chalmers Corp. v. Lueck holds that “when resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract,” the claim is preempted by federal labor law. Moreover, the independent state claim limitation on federal preemption was articulated explicitly in Lingle v. Norge Division.

Three-step decision tree. The Ninth Circuit has developed a three-step decision tree as to when the exception to preemption for an independent state right can be made: the court must consider: (1) whether the CBA contains provisions that govern the actions giving rise to a state claim, and if so, (2) whether the state has articulated a standard sufficiently clear that the state claim can be evaluated without considering overlapping CBA provisions, and (3) whether the state has shown an intent not to allow its prohibition to be altered or removed by private contract. A state law will be preempted only if the answer to the firs question is “yes,” and the answer to either the second or third is “no.”

In this case, the employee’s claim was precisely that her vacation leave ought to be deemed available in May rather than December, because of state law affecting the use of leave. The WFCA says that whatever right to leave to care for family members the employee has depends on her CBA. This dependence of the state claim on the terms of the CBA means that the CBA has to be analyzed to see whether the employee is entitled to paid leave. Because the statute created no right to any kind of paid leave and conditioned an employee’s entitlement to leave under the CBA, the right to leave was substantially dependent on analysis of the CBA, and so was preempted.

Dissent. In a dissenting opinion, Judge Christen would hold that the district court correctly concluded that the DLI’s enforcement of the employee’s WFCA complaint was not preempted by the RLA, and that the correct forum for resolving the parties’ dispute was the state administrative process. The dissent argued that the flight attendant’s claim was not preempted because the right she asserted arose from the WFCA, if it existed at all, and did not depend upon the CBA.