NOT FOR PUBLICATION FILED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).
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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.
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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).
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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.
5