HELEN A. LINGLEY, Appellant,
ALASKA AIRLINES, INC. and DAN KANE, Appellees
from the Superior Court of the State of Alaska, First
Judicial District, Petersburg, William B. Carey, Judge.
Superior Court No. 1PE-12-00047 CI.
W. Triem, Petersburg, for Appellant.
S. Fisher and Elizabeth P. Hodes, Davis Wright Tremaine LLP,
Anchorage, for Appellees.
Stowers, Chief Justice, Fabe, Winfree, Maassen, and Bolger,
former airline employee sued her former employer for wrongful
termination without first attempting to arbitrate her claims
under the provisions of a collective bargaining agreement
subject to the federal Railway Labor Act. The superior court
denied the employee leave to amend her complaint, concluding
that her claims and proposed claims were precluded by failure
to exhaust contractual remedies and were preempted by the
Railway Labor Act. But the collective bargaining agreement
does not clearly and unmistakably waive the employee's
right to litigate her claims, a prerequisite to finding her
claims precluded. And a number of her proposed claims may
have an independent state law basis that does not depend on
an interpretation of the collective bargaining agreement;
such claims would not be preempted by the Railway Labor Act.
Accordingly we reverse the superior court order denying leave
FACTS AND PROCEEDINGS
February 2012 Alaska Airlines terminated Helen Lingley, a
longtime employee, for violating company rules and polices
after she allegedly took earbuds from a
left-on-boardbox, made contradictory statements during
the ensuing investigation, and made discourteous comments
about her coworkers. The terms and conditions of
Lingley's employment were governed by a collective
bargaining agreement negotiated by Lingley's union, the
International Association of Machinists and Aerospace
Workers, pursuant to the federal Railway Labor Act
(RLA). This agreement broadly incorporated
Alaska Airlines' rules and policies and gave the company
the right to change those rules and policies at any time.
Employees were required to be familiar with any changes.
agreement set forth a three-step process for grieving
decisions that resulted in the loss of pay, namely discharge
and suspension. The first two steps consisted of an "
initial hearing" and a " secondary hearing,"
each presided over by a representative of Alaska Airlines; an
employee could be represented by " the Local Shop
Steward and/or the Union General Chair or his/her
designee." The third step was an appeal before the
System Board of Adjustment, a three-member arbitration panel
consisting of " a Company member, a Union member[,] and
a neutral referee." During this final step, employees
could be represented by " such person or persons as they
may choose and designate, in conformance with the
constitution of the Union."
receiving the discharge notice, Lingley initiated the
grievance process through her union. Over the next few months
Alaska Airlines held two hearings in which a union
representative represented Lingley's interests. Before
each hearing, Alaska Airlines offered Lingley a last-chance
agreement which would have allowed Lingley to remain employed
if she admitted just cause existed for her discharge. Lingley
declined both offers.
the initial and secondary hearings, the presiding company
officer issued written decisions denying Lingley's
grievance. The union then appealed the grievance to the
System Board of Adjustment for arbitration. But about three
months later, the union informed Lingley that " no
appeal will be made and the case is now closed in [its]
files." That same day the union sent a letter to the
System Board of Adjustment asking it to remove the matter
from its docket. Nothing in the record suggests that Lingley
attempted to pursue arbitration on her own.
four months later, in December 2012, Lingley filed a
complaint in the superior court alleging wrongful termination
and breach of the implied covenant of good faith and fair
dealing. The complaint named Alaska Airlines and Dan Kane,
the manager who signed her discharge notice, as defendants
(collectively, " Alaska Airlines" ). That complaint
apparently was not served. In April 2013, Lingley filed an
amended complaint again broadly alleging wrongful termination
and breach of the implied covenant of good faith and fair
response, Alaska Airlines moved to dismiss under Alaska Civil
Rule 12(b)(1) for lack of subject matter jurisdiction. It
argued that (1) the RLA preempted Lingley's claims and
(2) the complaint was precluded by her failure to exhaust the
remedies available under the collective bargaining agreement.
To support the motion, Alaska Airlines attached several
exhibits including the collective bargaining agreement,
various company rules and policies, Lingley's grievance
submission form, and correspondence between the union and
Alaska Airlines about the grievance.
then moved for a stay pending discovery, arguing that she
needed information within Alaska Airlines' exclusive
control. As examples she cited the exhibits attached to the
motion to dismiss, internal memos and emails, her personnel
file, and information that would be obtained via Alaska Civil
Rule 26(a) disclosures. Alaska Airlines opposed, asserting
that the jurisdictional facts that served as the basis for
its motion to dismiss were established and undisputed.
then requested leave to file a second amended complaint. The
proposed amended complaint alleged five new claims: age
discrimination, economic discrimination, retaliation,
whistleblowing, and retribution. Alaska Airlines opposed,
arguing that the claims were futile based on the same
preemption and preclusion grounds that applied to the first
amended complaint. The superior court agreed and
accordingly denied leave to amend. The court also determined
that, as Alaska Airlines had contended, Lingley's
economic discrimination claim was legally deficient and thus
futile because economic status is not a protected
superior court also denied Lingley's motion for a
discovery continuance and dismissed Lingley's first
amended complaint under Civil Rule 12(b)(1), concluding that
the claims were preempted by the RLA. With respect to
Lingley's discovery motion, the court determined that the
jurisdictional facts were established and undisputed; as such
the court could consider the facts alleged in Alaska
Airlines' motion, the affidavits, and the attached
documentary evidence. The court further noted that Lingley
had access to all relevant facts and thus delaying the
proceedings likely would be of little benefit to Lingley and
would risk prejudice to Alaska Airlines.
on these decisions, Alaska Airlines moved for final judgment.
Lingley opposed, contending that the case was ongoing. She
argued that the court had yet to address several of her state
law claims including those for defamation, intentional
infliction of emotional distress, prima facie tort, and
spoliation of evidence. In response the superior court issued
an order clarifying that it had already disposed of all
claims and accordingly the litigation had concluded. It
explained that the unresolved claims Lingley cited had not
been explicitly pled nor could they be inferred from her
Airlines then filed a second motion to enter final judgment.
Lingley opposed, again citing the unresolved state law
claims; three days later she moved for the court to
reconsider its clarifying order. The superior court denied
Lingley's motion for reconsideration and entered final
judgment for Alaska Airlines. Lingley appeals.
STANDARD OF REVIEW
superior court denied Lingley leave to amend her complaint.
We generally " review the denial of a motion to amend a
pleading for abuse of discretion."  A superior court
abuses its discretion " when the decision on review is
manifestly unreasonable."  " It is within a
trial court's discretion," however, " to deny
such a motion where amendment would be futile because it
advances a claim or defense that is legally insufficient on
its face."  We use our independent judgment to
determine whether such an amendment would be legally
insufficient. We may affirm the superior court on
independent grounds, but only when those grounds are
established by the record.
superior court also dismissed Lingley's action for lack
of subject matter jurisdiction under Civil Rule 12(b)(1).
" We review de novo a superior court's decision to
dismiss a complaint for lack of subject matter
jurisdiction."  In reviewing de novo we exercise our
independent judgment, adopting the rule of law most
persuasive in light of precedent, reason, and
appeal also requires us to interpret a collective bargaining
agreement. " Contract interpretation presents a question
of law that we review de novo."  Our " goal
is to 'give effect to the reasonable expectations of the
parties.'"  We discern the parties' intent
by looking " to the written contract as well as
extrinsic evidence . . . at the time the contract was
made."  If there is conflicting extrinsic
evidence, we, not a jury, must " decide the question of
meaning except where the written language, read in context,
is reasonably susceptible to both asserted meanings."
this appeal requires statutory interpretation, which is a
question of law. We decide questions of law using our
independent judgment, adopting the " most persuasive
rule of law in light of precedent, reason, and policy."
 When interpreting a statute we
consider its text, legislative history, and
The Superior Court Abused Its Discretion When It Denied
Lingley's Motion To Amend Her
superior court denied Lingley's motion to amend her
complaint, concluding that the claims in the proposed amended
complaint were futile because Lingley did not exhaust her
contractual remedies and because the RLA preempted many of
to amend " shall be freely given when justice so
requires."  But we have recognized that denial
of leave to amend might be justified given " undue
delay, bad faith or dilatory motive . . . [by] the movant,
repeated failure to cure deficiencies by amendments . . .,
undue prejudice to the opposing party . . ., [or] futility of
the amendment, etc."  As noted above, we use
our independent judgment in determining whether an amendment
would be legally insufficient.
Lingley's motion to amend was timely and granting leave
would not cause apparent prejudice to Alaska
Airlines argues that allowing Lingley to litigate her claims
would cause the airline prejudice because it has a right to
resolve the dispute " in the forum mandated by Congress
and selected by the parties' collective bargaining
agreement" ; this alternative forum, it contends,
shields it from the time and expense of litigation. Lingley
argues that Alaska Airlines points only to "
run-of-the-mill tasks of defending a . . . lawsuit,"
grounds that do not support finding undue prejudice. We
superior court may deny leave to amend when allowing the
amendment would cause undue prejudice to the other
party. But time and additional expense
alone do not support such a finding. " If the
underlying facts or circumstances relied upon by a plaintiff
may be a proper subject of relief, [the plaintiff] ought to
be afforded an opportunity to test [the] claim on the
moved to file a second amended complaint about two months
after she filed her first amended complaint. This motion was
timely and nothing in the record suggests that granting it
would have caused Alaska Airlines undue prejudice. The court
had yet to set a trial date, and the discovery process had
yet to begin. At this early stage, the hardship caused by
denying Lingley the opportunity to test the merits of her
claims outweighs any prejudice to Alaska Airlines.
Because the collective bargaining agreement did not clearly
and unmistakably waive Lingley's right to litigate, the
claims were not subject to mandatory
superior court ruled that Lingley's proposed claims were
precluded by her failure to exhaust administrative remedies.
Though an employee may have the right to pursue a claim in
state court -- because the claim is not preempted by the RLA
-- an employee may waive the right to litigate the claim
through her employment contract. Lingley contends that
her employment contract (the collective bargaining agreement)
does not waive her right to pursue claims in state court.
Bernard v. Alaska Airlines, Inc. we recently
considered a collective bargaining agreement that is
substantively the same as the one now before
us. We held that the agreement does not
preclude litigation of an employee's claims in state
court because the agreement does not clearly and unmistakably
waive the employee's right to do so. That analysis,
which we summarize below, applies equally here.
waiver must be " clear and unmistakable."
 " We will not infer from a
general contractual provision that the parties intended to
waive a statutorily protected right unless the undertaking is
'explicitly stated.'"  To determine
whether a waiver is " clear and unmistakable," we
apply a two-part test: The contract must either (1) have an
arbitration clause with a provision through which "
employees specifically agree to submit all . . . causes of
action arising out of their employment to arbitration"
or (2) explicitly incorporate the " statutory . . .
requirements in addition to a broad and general arbitration
collective bargaining agreement, as we explained in
Bernard, does not satisfy either prong of
this test. First, though the agreement appears to grant the
System Board of Adjustment broad jurisdiction over disputes
between covered employees and the company -- authorizing the
board to hear disputes " growing out of
grievances or out of interpretation or application of any of
the terms of this [a]greement" -- the agreement also
appears to limit the board's authority. (Emphasis added.)
By its terms, the agreement only authorizes the board to hear
" properly submitted" disputes. To proceed to
arbitration, the agreement narrowly defines " proper
submission" : " [ T ] he General
Chair may appeal to arbitration within thirty . . .
calendar days." (Emphasis added.) The agreement also
narrowly defines the System Board of Adjustment's duties:
" The Board shall consider any dispute properly
submitted to it by the General Chair of the Union or
his/her designee, or by the Representative of the
Company" ; " [ n ] o matter shall be
considered by the Board which has not first been fully
processed in accordance with the grievance and appeal
provisions of this [a]greement." (Emphases added.) The
plain language of the agreement does not give an employee,
like Lingley, the right to independently submit her claims to
arbitration; the agreement recognizes only those appeals
brought by the union or its representatives or by Alaska
Airlines. Because of this apparent
foreclosure, the agreement fails the first prong of the test
for finding clear and unmistakable waiver of the right to
pursue claims in state court.
collective bargaining agreement also fails the second prong
of the test because it did not explicitly incorporate Alaska
Airlines' protections against discrimination,
retaliation, and whistleblowing. The agreement broadly
incorporates Alaska Airlines' rules and policies. These
policies include those that protect employees from
retaliation for airing good faith concerns about ethical or
compliance issues, harassment, and discrimination. The
anti-discrimination provision provides:
The Company is an equal opportunity employer. This means the
Company is committed to providing equal consideration in all
employment decisions (including, for example, recruiting,
hiring, training, promotions, pay practices, benefits,
disciplinary actions and terminations) without regard to age,
race, color, gender, national origin, religion, marital
status, sexual orientation, disability, veteran status or any
other classification protected by federal, state, or local
laws . . . .
Acts of discrimination and harassment not only violate our
Company values and policies, but may also violate
federal, state, and local laws and are strictly
(Emphasis added.) The anti-retaliation clause provides:
The Company does not tolerate retaliation of any kind for
raising concerns or making a report in good faith about an
ethical or compliance issue. To be made in " good
faith" does not mean you have to be right, however, it
does mean you have to provide complete and accurate
information and you have to have a reasonable belief that it
may be true.
Bernard, none of the incorporated provisions to
which Alaska Airlines directs us expressly cites Alaska
law. And, most importantly, the
collective bargaining agreement grants Alaska Airlines the
power to unilaterally modify its rules and polices "
during the term of the [a]greement." Under such
circumstances, it cannot be said that an employee clearly and
unmistakably waives her right to pursue state law claims in
state court because to do so an employee must know what
rights she is waiving. We thus would reach the same
conclusion even if the incorporated company rules and
policies explicitly cited Alaska law.
superior court's conclusion that Lingley's proposed
claims were barred by her failure to exhaust contractual
remedies was mistaken because the collective bargaining
agreement does not clearly and unmistakably waive her right
to litigate those claims.
The RLA does not preempt claims that have an independent
state law basis and do not turn on the collective bargaining
superior court ruled that many of Lingley's claims were
preempted by the RLA and therefore were futile. The RLA
provides a " mandatory arbitral mechanism for 'the
prompt and orderly settlement' of two classes of
disputes" : major disputes, which relate to
" the formation of collective [bargaining] agreements or
efforts to secure them" ;  and minor disputes,
which include " controversies over the meaning of an
existing collective bargaining agreement in a particular fact
situation."  Claims that fall into either
category are preempted.
Airlines contends, as the superior court concluded, that many
of Lingley's proposed claims are minor disputes that must
be resolved through the mechanisms provided by the RLA,
including the collective bargaining agreement's three
step grievance process. But we conclude that Lingley's
claims may have an independent state law basis and that, as
so constructed, do not require us to interpret the collective
bargaining agreement. Such claims would not be preempted: The
RLA " does not pre-empt causes of action to enforce
rights that are independent of the [collective bargaining
agreement]."  " Pre-emption of employment
standards' within the traditional police power of the
[s]tate' 'should not be lightly inferred.'"
The age discrimination claim is not preempted because it
could be based on state statute.
Airlines does not dispute the superior court's conclusion
that the RLA does not preempt Lingley's age
discrimination claim. In the wrongful termination context, a
state law claim may be " pre-empted, not
because the RLA broadly pre-empts state-law claims based on
discharge or discipline, but because the employee's claim
was firmly rooted in a breach of the [collective bargaining
agreement] itself."  By contrast, when an
employee's right against wrongful termination derives
from state law and does not depend on an analysis or
interpretation of the collective bargaining agreement, the
state law cause of action is not preempted. Such
claims may turn on, for example, the state law duty not to
fire an employee for retaliatory reasons or in violation of
other state public policy.
age discrimination claim has an independent state law basis
under AS 18.80.220, which prohibits an employer from
discriminating against an employee " because of the
[employee's] age."  This statute also
prohibits discriminating against an employee because of his
or her sex, and we have held that the RLA does
not preempt a wrongful termination claim arising under this
statute when the claim alleges retaliation for reporting
sexual harassment. The same is true with respect to
Lingley's age discrimination claim. Like a claim for
pretextual firing based on sexual discrimination,
Lingley's age discrimination claim does not turn on an
interpretation of the collective bargaining agreement; it has
an independent state law basis in AS 18.80.220 and therefore
is not preempted.
The retaliation, whistleblower, and retribution claims are
not preempted if they are construed as tort claims for
discharge in violation of public
superior court concluded, and Alaska Airlines concedes, that
the RLA does not preempt Lingley's retaliation claim if
it " is construed as a tort claim for wrongful discharge
in violation of public policy." But the superior court,
like Alaska Airlines, reached the opposite conclusion with
respect to Lingley's whistleblower and retribution
claims: Those claims, unlike the retaliation claim, arose
from the collective bargaining agreement and could not be
considered independent of it.
RLA, as noted, does not preempt a wrongful termination claim
when the claim is rooted in state law rather than a
collective bargaining agreement. This category of
claims may include those alleging violations of state law
protections for whistleblowers. Under Alaska law, a
claim alleging wrongful termination for whistleblowing may be
actionable as an independent state law tort even when the
alleged misconduct " does not violate the letter of any
. . . [statutory] law." 
claims that Alaska Airlines retaliated against her for
criticizing management's failure to follow company
policies and for reporting company misconduct and violations
of federal law. These claims may be rooted in Alaska's
public policy that protects employees who serve as
whistleblowers from retaliation. So construed, Lingley's
retaliation, whistleblower, and retribution claims would turn
on state law rather than the collective bargaining
agreement. Further, though we have explained
that wrongful termination claims based on whistleblowing may
" express a breach of contract theory"
 and though Alaska Airlines'
polices (incorporated into the collective bargaining
agreement) explicitly protect employees who report misconduct
in good faith, this nexus with the agreement does not mean
Lingley's whistleblower and retribution claims turn on an
interpretation of that agreement. Rather we recognize, for
the purpose of RLA preemption, that a collective bargaining
agreement cannot " alter, circumscribe, or
define" state law protections even when the agreement
appears to offer protections similar to ...