FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COLUMBIA EXPORT TERMINAL, LLC,

Plaintiff-Appellant,

v.

INTERNATIONAL LONGSHORE AND

WAREHOUSE UNION; KANE AHUNA,

an individual; JASON ANDREWS, an

individual; JESUS ARANGO, an

individual; MIKE AYERS, an

individual; BRIAN BANTA, an

individual; KEN BANTA, an

individual; KEITH BANTA, an

individual; ANDRE BARBER, an

individual; CRYSTAL BARNES, an

individual; CRAIG BITZ, an

individual; LISA BLANCHARD, an

individual; RANDY BOOKER, an

individual; BRAD BOYD, an

individual; LARRY BROADIE, an

individual; FELIX BROWN, an

individual; JIMMY BROWN, an

individual; JON BUDISELIC, an

individual; WILLIAM BURRIS, an

individual; DOUGLAS CAREY, an

individual; GREG CARSE, an

individual; ANTHONY CERRUTTI, an

individual; HUGH COLSON, an

individual; TIM COPP, an individual;

No. 20-35037

D.C. No.

3:18-cv-02177-

JR

ORDER AND

OPINION
2 COLUMBIA EXPORT TERMINAL V. ILWU

E. COTUREN, an individual; STEVEN

COX, an individual; RYAN

CRANSTON, an individual; JAMES

DAW, an individual; ADAM DAY, an

individual; JAMES DEGMAN, an

individual; TORRAE DE LA CRUZ, an

individual; FRANK DE LA ROSA, an

individual; THOMAS DEMUTH, an

individual; JAMES DINSMORE, an

individual; BRIAN DIRCKSEN, an

individual; TERENCE DODSON, an

individual; GARY DOTSON, an

individual; OLIVER EDE, an

individual; RAY ELWOOD, an

individual; TODD ENGLERT, an

individual; CHRIS EUBANKS, an

individual; DAVID FAMBRO, an

individual; LARRY FAST, an

individual; JAMES FINCH, an

individual; GREG FLANNERY, an

individual; MIKE GARDNER, an

individual; BRETT GEBHARD, an

individual; RICHARD GILSTRAP, an

individual; TED GRAY, an individual;

KURTIS HANSON, an individual;

MIKE HARMS, an individual; RANDY

HARPER, an individual; TERRY

HICKMAN, an individual; JAMES

HOLLAND, an individual; BRUCE

HOLTE, an individual; RONALD

HUSEMAN, an individual; NATHAN

HYDER, an individual; TROY JAMES,

an individual; SAM JAURON, an
COLUMBIA EXPORT TERMINAL V. ILWU 3

individual; ANTHONY JEFFRIES, an

individual; KEVIN JOHNSON, an

individual; PAT JOHNSON, an

individual; TERRY JOHNSON, an

individual; TIM JONES, an individual;

JON JULIAN, an individual; LEROY

KADOW, an individual; GEORGE

KELLY, an individual; ERIC KING, an

individual; WAYNE KING, Esquire,

an individual; KEVIN KNOTH, an

individual; KENNETH KYTLE, an

individual; MIKE LACHAPELLE, an

individual; JIMMY LAI, an individual;

TOM LANGMAN, an individual;

TYLER LAUTENSCHLAGER, an

individual; JACK LEE, an individual;

KEN LEE, an individual; DAN

LESSARD, an individual; SHANTI

LEWALLEN, an individual; DANNY

LOKE, an individual; THOMAS LOVE,

an individual; WILFRED LUCH, an

individual; KARL LUNDE, an

individual; CRAIG MAGOON, an

individual; MIKE MAHER, an

individual; JASON MALACHI, an

individual; LEVI MANNING, an

individual; RICKIE MANNING, an

individual; JAY MANTEI, an

individual; PAT MARONAY, an

individual; A. MARTIN, an

individual; GARRY MATSON, an

individual; PAT MCCLAIN, an

individual; M. MCMAHON, an
4 COLUMBIA EXPORT TERMINAL V. ILWU

individual; MIKE MCMURTREY, an

individual; DONALD MEHNER, an

individual; CURTIS MEULER, an

individual; KARL MINICH, an

individual; JOSH MORRIS, an

individual; JOHN MULCAHY, an

individual; TOM NEITLING, an

individual; MARTIN NELSON, an

individual; GREG NEMYRE, an

individual; RIAN NESTLEN, an

individual; CHRIS OVERBY, an

individual; KEN OVIATT, an

individual; THOMAS OWENS, an

individual; JOHN PEAK, an

individual; SHANE PEDERSON, an

individual; JEFF PERRY, an

individual; JOHN PERRY, an

individual; ARNOLD PETERSON, an

individual; TERRY PLAYER, an

individual; JAMES POPHAM, an

individual; DAVID PORTER, an

individual; MIKE RAPACZ, an

individual; JOHN RINTA, an

individual; WILLIAM ROBERTS, an

individual; JOSEPH ROBINSON, an

individual; MARK ROBINSON, an

individual; CHRIS SCHEFFEL, an

individual; THEODORE SCHUH, an

individual; MIKE SEXTON, an

individual; MARK SIEGEL, an

individual; COURTNEY SMITH, an

individual; JEFF SMITH, an

individual; MIKE SMITH, an
COLUMBIA EXPORT TERMINAL V. ILWU 5

individual; SCOTT STEIN, an

individual; DONALD STYKEL, an

individual; MIKE SUHR, an

individual; LEAL SUNDET, an

individual; LAWRENCE THIBEDEAU,

an individual; MARK THORSFELDT,

an individual; SHAWN THORSTAD, an

individual; JAMES THORUD, an

individual; DAVID TRACHSEL, an

individual; WILLIAM UNDERWOOD,

an individual; JASON VANCE, an

individual; DAVID VARNON, an

individual; PAN VARNON, an

individual; MIKE WALKER, Esquire,

Attorney, an individual; DWAYNE

WAMSHER; EUGENE WEBB, an

individual; MIKE WEHAGE, an

individual; KEVIN WELDON, an

individual; SPENCER WHITE, an

individual; RICHARD WIDLE, an

individual; NURAL WILLIS, an

individual; RONALD WOODS, an

individual; MARK WRIGHT, an

individual; CAROL WURDINGER, an

individual; JERRY YLONEN, an

individual; P. YOCITIM, an

individual; RICHARD ZATTERBERG,

an individual; FRED ZOSKE, an

individual; JAMES COTHREN, an

individual; BOBBY CRANSTON, an

individual; TEREK JOHNSON, an

individual; ANGELA MARTIN,

Esquire, an individual; PATRICK
6 COLUMBIA EXPORT TERMINAL V. ILWU

MCCLAIN, an individual; MATTHEW

MCMAHON, an individual; SHANN

PEDERSON, an individual; MICHAEL

SEXTON, an individual; JEFFREY

SMITH, an individual; LAURENCE

THUBEDEAU, an individual; PAUL

YOCHIM, an individual,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Oregon

Michael H. Simon, District Judge, Presiding

Argued and Submitted October 26, 2020

Portland, Oregon

Filed January 5, 2022

Before: Susan P. Graber, Richard R. Clifton, and

Sandra S. Ikuta, Circuit Judges.

Order;

Opinion by Judge Clifton;

Dissent by Judge Ikuta

Dissent from Order by Judge Bennett
COLUMBIA EXPORT TERMINAL V. ILWU 7

SUMMARY*

RICO / Labor Law

The panel filed (1) an order withdrawing an opinion and

dissent and denying, on behalf of the court, a petition for

rehearing en banc; and (2) a new opinion and dissent. In the

new opinion, the panel affirmed the district court’s dismissal

of an action brought by Columbia Export Terminal under the

Racketeer Influenced and Corrupt Organizations Act against

the International Longshore and Warehouse Union and

individual union workers.

The panel concluded that Columbia Export Terminal’s

RICO claims alleging overbilling via fraudulent timesheets

required interpretation of the collective bargaining agreement

(“CBA”) under which the workers were employed, and the

CBA provided a process for arbitration of disputes. The

panel concluded that the CBA’s arbitration provision applied

to the RICO claims. Accordingly, § 301 of the Labor

Management Relations Act precluded adjudication of the

RICO claims before the arbitration process was exhausted.

The panel agreed with the district court that Hubbard v.

United Airlines, Inc., 927 F.2d 1094 (9th Cir. 1991),

remained good law, and the panel found persuasive

Hubbard’s holding that the Railway Labor Act preempted a

fraud claim under RICO. The panel held that a RICO claim

is precluded by § 301 of the LMRA when the right or duty

upon which the claim is based is created by a CBA or

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
8 COLUMBIA EXPORT TERMINAL V. ILWU

resolution of the claim substantially depends on analysis of a

CBA.

Dissenting, Judge Ikuta wrote that the majority erred in

holding that any federal claim that is related to a CBA is

preempted or precluded by § 301 of LMRA and must

automatically be dismissed by the district court and sent for

arbitration. The majority also erred in applying a

presumption of arbitrability and in determining that the

CBA’s arbitration provision encompassed the RICO claims

at issue.

Dissenting from the denial of rehearing en banc, Judge

Bennett, joined by Judges Ikuta, R. Nelson, Bumatay, and

VanDyke, wrote that, whether called preemption or

preclusion, the LMRA does not bar a federal statutory claim

brought in federal court. Judge Bennett wrote that a footnote

in Alaska Airlines Inc. v. Schurke, 898 F.3d 904, 920 n.10

(9th Cir. 2018) (en banc), erroneously suggested that § 301

“precludes” federal statutory claims in the same way it

preempts state law claims, and the court should have reheard

this case en banc to excise this erroneous preclusion notion

from its jurisprudence. Judge Bennett wrote that preclusion

of federal claims is inconsistent with the purpose of § 301,

and a statute passed by Congress to help maintain a uniform

body of federal labor law does not somehow nullify a

different statute passed by Congress to, among other

objectives, eradicate organized attempts to defraud through a

pattern of racketeering activity. Judge Bennett wrote that the

panel also erred in applying a presumption of arbitrability

contrary to Supreme Court precedent and created an

agreement to arbitrate RICO claims, even though the parties

never signed such an agreement.
COLUMBIA EXPORT TERMINAL V. ILWU 9

COUNSEL

Christopher F. McCracken (argued) and Jacqueline M.

Damm, Ogletree Deakins Nash Smoak & Stewart P.C.,

Portland, Oregon; Thomas A. Lidbury, Ogletree Deakins

Nash Smoak & Stewart P.C., Chicago, Illinois; for PlaintiffAppellant.

Darin M. Dalmat (argued) and Robert H. Lavitt, Barnard

Iglitzin & Lavitt LLP, Seattle, Washington, for DefendantsAppellees.
10 COLUMBIA EXPORT TERMINAL V. ILWU

ORDER

The opinion and dissent filed on June 28, 2021 (Docket

Entry No. 31), and published at 2 F.4th 1243 (9th Cir. 2021)

are withdrawn. A new opinion and dissent are filed

concurrently with this order. 

Plaintiff-Appellant has filed a petition for rehearing en

banc (Docket Entry No. 34). Judge Graber votes to deny the

petition for rehearing en banc, and Judge Clifton so

recommends. Judge Ikuta votes to grant the petition for

rehearing en banc. 

The full court has been advised of the petition for

rehearing en banc. A judge of the court requested a vote on en

banc rehearing. The matter failed to receive a majority of

votes of non-recused active judges in favor of en banc

consideration. Fed. R. App. P. 35.

The petition for rehearing en banc is DENIED. No further

petitions for rehearing or rehearing en banc will be

entertained.

OPINION

CLIFTON, Circuit Judge:

Columbia Export Terminal (“CET”) brought an action

under the Racketeer Influenced and Corrupt Organizations

Act (“RICO”) against the International Longshore and

Warehouse Union (“ILWU”) and 154 individual ILWU

workers employed by CET. The district court concluded that

CET’s RICO claims could not properly proceed in court at
COLUMBIA EXPORT TERMINAL V. ILWU 11

this time and dismissed the case without prejudice. It

reasoned that the claims required interpretation of the

collective bargaining agreement (“CBA”) under which the

workers were employed, that the CBA provided a process for

arbitration of disputes, and that the Labor Management

Relations Act (“LMRA”) precluded court adjudication of the

RICO claims before the arbitration process had been

exhausted. CET appeals the dismissal.

We previously reached a conclusion similar to that

reached by the district court regarding a labor contract

governed by the Railway Labor Act (“RLA”). Hubbard v.

United Airlines, Inc., 927 F.2d 1094 (9th Cir. 1991). The

district court relied on that precedent, rejecting an argument

by CET that Hubbard had been overruled. We agree with the

district court that Hubbard remains alive and persuasive. Our

conclusion that the same result is required for a contract

governed by the LMRA is a logical extension of our

precedents. We take that step here and affirm the judgment of

the district court.

I. Background

CET operates a grain export terminal in the Port of

Portland and employs workers who are members of the

ILWU. CET alleges that the ILWU and the 154 named

individual defendants conspired to fraudulently furnish

timesheets reporting hours that were not actually worked and,

as a result, overbilled CET by more than $5.3 million.

CET filed this action alleging seven claims under RICO,

18 U.S.C. §§ 1961–68. In response, the ILWU filed a motion

to dismiss contending, among other things, that CET’s claims

were preempted under § 301 of the LMRA, 29 U.S.C. § 185,
12 COLUMBIA EXPORT TERMINAL V. ILWU

because resolution of the claims required interpretation of the

underlying CBA, which requires exhaustion of the

agreement’s grievance procedures. The individual defendants

joined the union’s motion. The district court agreed with the

ILWU and dismissed the case without prejudice. CET

appeals.

II. Discussion

The central dispute on appeal is whether CET’s claims,

which it styled as RICO claims, are preempted or precluded

by § 301 of the LMRA. We review the district court’s

interpretation of the statutes de novo. Alaska Airlines Inc. v.

Schurke, 898 F.3d 904, 916 (9th Cir. 2018) (en banc).

A. The two-step preclusion and preemption under LMRA

§ 301.

The LMRA, sometimes described as the Taft-HartleyAct,

was enacted in 1947 to “promote the full flow of commerce”

by “provid[ing] orderly and peaceful procedures for

preventing [] interference by [employees or employers] with

the legitimate rights of the other.” 29 U.S.C. §141(b). To that

end, LMRA § 301(a) provides that “[s]uits for violation of

contracts between an employer and a labor organization . . .

may be brought in any district court.” 29 U.S.C. § 185(a).

On its face, § 301 reads as a jurisdictional statute, and it

“contains no express language of preemption, [but] the

Supreme Court has long interpreted the [provision] as

authorizing federal courts to create a uniform body of federal

common law to adjudicate disputes that arise out of labor

contracts.” Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1151
COLUMBIA EXPORT TERMINAL V. ILWU 13

(9th Cir. 2019); Textile Workers Union v. Lincoln Mills,

353 U.S. 448, 450–51, 457 (1957).

Consistent with this purpose, the Supreme Court

concluded that § 301 impliedly preempted state law in order

to give effect to the congressional intent that “doctrines of

federal labor law uniformly [] prevail over inconsistent local

rules.” Teamsters v. Lucas Flour Co., 369 U.S. 95, 104

(1962). Therefore, any “union agreement made pursuant to [a

federal labor law] has [] the imprimatur of the federal law

upon it and, by force of the Supremacy Clause of Article VI

of the Constitution, could not be [] vitiated by any provision

of the laws of a State.” California v. Taylor, 353 U.S. 553,

561 (1957) (quoting Ry. Emp. Dept. v. Hanson, 351 U.S. 225,

232 (1956)).

Federal courts have developed common law to govern

labor disputes and have concluded that a “central tenet of

federal labor-contract law under § 301 [is that] the arbitrator,

not the court, [] has the responsibility to interpret the labor

contract in the first instance.” Allis-Chalmers Corp. v. Lueck,

471 U.S. 202, 220 (1985). As we explained in Alaska Airlines

and reiterated last year in Curtis, preserving the role of the

CBA’s grievance process is important for three reasons:

First, a [CBA] is more than just a contract; it

is an effort to erect a system of industrial selfgovernment. Thus, a CBA is part of the

continuous collective bargaining process.

Second, because the CBA is designed to

govern the entire employment relationship,

including disputes which the drafters may not

have anticipated, it calls into being a new

common law—the common law of a
14 COLUMBIA EXPORT TERMINAL V. ILWU

particular industry or of a particular plant.

Accordingly, the labor arbitrator is usually the

appropriate adjudicator for CBA disputes

because he was chosen due to the parties’

confidence in his knowledge of the common

law of the shop and their trust in his personal

judgment to bring to bear considerations

which are not expressed in the contract as

criteria for judgment. Third, grievance and

arbitration procedures provide certain

procedural benefits, including a more prompt

and orderly settlement of CBA disputes than

that offered by the ordinary judicial process.

Curtis, 913 F.3d at 1152 (internal quotation marks and

citations omitted).

For more than sixty years, the Supreme Court has

interpreted § 301 to require the specific performance of

promises to arbitrate grievances in collective bargaining

agreements. Lincoln Mills, 353 U.S. at 451.

We have thus applied the preemptive effect of § 301 to all

“state law claims grounded in the provisions of a CBA or

requiring interpretation of a CBA.” Kobold v. Good

Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1032 (9th Cir.

2016). We have distilled the relevant Supreme Court cases

into a two-part test:

The essential inquiry is this: [1] Does the

claim seek purely to vindicate a right or duty

created by the CBA itself? If so, then the

claim is preempted, and the analysis ends

there.
COLUMBIA EXPORT TERMINAL V. ILWU 15

[2] But if not, we proceed to the second

step and ask whether a plaintiff’s state law

right is substantially dependent on analysis of

the CBA, which turns on whether the claim

cannot be resolved by simply looking to

versus interpreting the CBA.

Curtis, 913 F.3d at 1152–53 (internal citations and quotation

marks omitted).1

CET argues that this preemption approach properly

applies only to claims arising under state law, not to claims,

such as the RICO claims alleged here, arising under federal

law. Instead, CET contends that we should apply a preclusion

test that asks whether the two federal statutes necessarily

conflict, and if so, favors the statute passed later in time. CET

argues that because the RICO statute was enacted after the

LMRA, if there is an irreconcilable conflict between the two

federal statutes, the older one, the LMRA, must be deemed to

have been repealed or amended by the later legislation.

We recognize, as CET argues, that a conflict between two

federal laws implicates different considerations than a

conflict between a state and a federal law. The Sixth Circuit

considered this issue in the context of an Americans with

Disabilities Act (“ADA”) claim brought by a union

employee. In permitting the ADA claim to proceed, the court

explained that “Congress’s power to preempt state law is

rooted in the Supremacy Clause of the United States

1 A variation of the test asks: (1) whether the claim asserted exists

independently of the CBA, and if so (2) whether the resolution of the

claim nonetheless substantially depends on analysis of the CBA. Kobold,

832 F.3d at 1032. Both versions of the test are used interchangeably.
16 COLUMBIA EXPORT TERMINAL V. ILWU

Constitution.” Watts v. United Parcel Serv., Inc., 701 F.3d

188, 191 (6th Cir. 2012). “Because [the plaintiff’s] claim is

based on a federal cause of action and is in federal court,

there is no danger of divergent application of a CBA’s

provisions by state courts; thus, the motivating purpose of

§ 301 preemption simply does not apply.” Id. at 191–92.

We agree, but that is not the only purpose of § 301

preemption. Crucially, § 301 preemption also is designed to

ensure “specific performance of promises to arbitrate

grievances under collective bargaining agreements.” Lincoln

Mills, 353 U.S. at 451. As the Supreme Court explained in

Lueck,

If respondent had brought a contract claim

under § 301, he would have had to attempt to

take the claim through the arbitration

procedure established in the collectivebargaining agreement before bringing suit in

court. Perhaps the most harmful aspect of the

Wisconsin decision [that permitted the state

law tort claim to proceed] is that it would

allow essentially the same suit to be brought

directly in state court without first exhausting

the grievance procedures established in the

bargaining agreement. The need to preserve

the effectiveness of arbitration was one of the

central reasons that underlay the Court’s

holding in [Lucas Flour, 369 U.S. at 105.]

The parties here have agreed that a neutral

arbitrator will be responsible, in the first

instance, for interpreting the meaning of their

contract. Unless this suit is pre-empted, their
COLUMBIA EXPORT TERMINAL V. ILWU 17

federal right to decide who is to resolve

contract disputes will be lost.

471 U.S. at 219. 

This principle—that claims which are, in substance, labor

disputes subject to the CBA must not be evaded by artful

pleading—applies with equal force to federal statutory

claims,2

“although they might be better described as

‘precluded.’” Alaska Airlines, 898 F.3d at 920 n.10. The

LMRA guarantees a “federal right to decide who is to resolve

contract disputes.” Lueck, 471 U.S. at 21. Therefore, when a

claim styled as a federal statutory claim turns in substance on

the provisions of the CBA rather than on an independent

statutory right, the federal court must direct the claim to the

proper adjudicator. Cf. Vadino v. A. Valey Engineers, 903

F.2d 253, 266 (3d Cir. 1990) (“In short, while claims resting

on [the Fair Labor Standards Act (“FLSA”)] are clearly

2

 Watts seemed to recognize this principle as well. The Sixth

Circuit did not rest its holding solely on the inapplicability of preemption

doctrine as between two federal laws. The court further explained that “the

right to be free from disability discrimination that Watts seeks to vindicate

in this action does not arise from the CBA or from state law; rather, it is

founded on the ADA.” Watts, 701 F.3d at 192 (emphasis added).

Moreover, the Watts court recognized that the outcome might have been

different had the employer “argued that [the employee] was subject to a

mandatory arbitration agreement under the CBAthat she failed to exhaust

before bringing her ADA claim in federal court.” Id. (emphasis added).

Thus, the Watts court acknowledged the distinction between federal

rights that arise independently from the CBA and rights that exist only

because of the CBA. This is precisely the distinction the preclusion

analysis aims to sift through, and the LMRA requires disputes arising

from the CBA to be funneled, if so required by the CBA, to arbitration.

Accordingly, our holding here is entirely consonant with Watts.
18 COLUMBIA EXPORT TERMINAL V. ILWU

cognizable under that section, we believe that claims which

rest on interpretations of the underlying collective bargaining

agreement must be resolved pursuant to the procedures

contemplated under the LMRA, specifically grievance,

arbitration, and, when permissible, suit in federal court under

section 301.”).

Whether called “preemption” or “preclusion,” the same

two-step approach applies whether the conflicting statute is

a federal or state provision. In Hubbard, for instance, we held

that the RLA, which also preceded the enactment of RICO,

preempted a fraud claim under RICO. 927 F.2d at 1099; see

also Long v. Flying Tiger Line, Inc., 994 F.2d 692 (9th Cir.

1993) (RLA precludes ERISA claims). Similar conclusions

have been reached by circuit courts across the country.

3

Although the Supreme Court has never directly passed on

that precise question, we are guided by its holding that

“[s]ection 301(a) governs claims founded directly on rights

created by collective-bargaining agreements, and also claims

3 Other circuits have applied the “preemption” or “preclusion” test

when considering federal claims in the context of labor disputes, without

referencing the dates of passage of each federal act. Like our court, the

Seventh Circuit has also held that the RLA precludes RICO claims.

Underwood v. Venango River Corp., 995 F.2d 677 (7th Cir. 1993)

narrowed by Westbrook v. Sky Chefs, Inc., 35 F.3d 316, 317–18 (7th Cir.

1994) (RLA precludes RICO claims unless causes of action are

independent ofthe CBA). Similarly, at least two circuits have held that the

LMRA precludes FLSA claims. Vadino, 903 F.2d 253; Martin v. Lake

Cnty. Sewer Co., Inc., 269 F.3d 673 (6th Cir. 2001). At least four circuits

have held that the RLA precludes ERISA claims. de la Rosa Sanchez v.

E. Airlines, Inc., 574 F.2d 29 (1st Cir. 1978); Ballew v. Cont’l Airlines,

Inc., 668 F.3d 777 (5thCir. 2012); Hastings v. Wilson, 516 F.3d 1055 (8th

Cir. 2008); Oakey v. U.S. Airways Pilots Disability Income Plan, 723 F.3d

227 (D.C. Cir. 2013).
COLUMBIA EXPORT TERMINAL V. ILWU 19

‘substantially dependent on analysis of a collectivebargaining agreement.’” Caterpillar, Inc. v. Williams,

482 U.S. 386, 394 (1987) (emphasis added) (quoting Int’l

Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 859 n.3

(1987)). The Supreme Court has enforced arbitration

requirements in § 301 cases when resolution of the claims

required interpretation of the CBA, regardless of the form of

the claim. See, e.g., Lueck, 471 U.S. at 219 (“Since nearly any

alleged willful breach of contract can be restated as a tort

claim for breach of a good-faith obligation under a contract,

the arbitrator’s role in every case could be bypassed easily if

§ 301 is not understood to pre-empt such claims.”)

Thus, in Hubbard, we explained that “federal labor law

was intended to provide the exclusive remedy for generic

fraud claims relating to rights under a CBA. If the same

predicate acts were the basis of state claims for fraud . . . they

would be preempted . . . [so plaintiffs] cannot evade

preemption through ‘artful pleading’ of the claims as RICO

claims.” 927 F.2d at 1098. If the court held otherwise, any

plaintiff could avoid arbitration by converting a gardenvariety contract dispute into a case of federal racketeering.

Though in Hubbard we considered a labor contract under

the RLA and reserved for another day the question of whether

LMRA precludes RICO claims, that day has come. We hold

that a RICO claim is precluded by § 301 of the LMRA when

the right or duty upon which the claim is based is created by

a CBA or resolution of the claim substantially depends on

analysis of a CBA.

We have previously suggested this extension. Notably,

two years ago our court, sitting en banc, observed that “the

RLA and LMRA § 301 preemption standards are ‘virtually
20 COLUMBIA EXPORT TERMINAL V. ILWU

identical’ in purpose and function, [and] theyare, for the most

part, analyzed under a single test and a single, cohesive body

of case law.” Alaska Airlines, 898 F.3d at 913 n.1 (quoting

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 260 (1994)).

After discussing the development of the two-step test

applying to claims under state law that require interpretation

of a CBA, we explained that “[t]he same principle applies to

federal law claims, although theymight be better described as

‘precluded.’” Id. at 920 n.10. The labor contract at issue in

Alaska Airlines, like the contract involved in Hubbard, was

governed by the RLA. The fact that the plaintiff had asserted

a claim under a federal statute rather than a state law did not

alter the outcome. The claim could not proceed, regardless of

whether it was described as precluded or preempted.

B. CET’s RICO claims require analysis of the CBA.

Applying the two-step test, we conclude that CET’s

RICO claims are precluded by § 301 because resolution of the

claims is substantially dependent on interpretation of the

CBA. CET’s RICO claims are premised on allegations that

timesheets submitted by ILWU workers were inflated. To

prove its case, CET must demonstrate that ILWU workers

committed the predicate acts of mail and wire fraud by

knowingly overbilling CET for time not worked. However,

ILWU contends that the billed hours were expressly

authorized by CET and charged in accordance with the CBA.

There are a host of CBA provisions that could excuse the

workers from being present at the time of work reported on

the timesheets or could explain whyworkers are compensated

for time not actually worked. For instance, ¶ 4-1 guarantees

a minimum of 8 hours of pay for employees who arrive at

work and are put to work even if released before the 8-hour
COLUMBIA EXPORT TERMINAL V. ILWU 21

shift concludes. Paragraph 4-5 guarantees a minimum 4 hours

of pay for those sent home upon arrival. Further, Section XII

of the CBA details special rules for “steady” employees:

¶ 12-3 guarantees 40 hours’ work per week, and ¶ 12-4 sets

maximum durations for lay-off periods. Finally, ¶ 8-1 of the

CBA lists paid holidays, ¶ 9-1 alludes to paid vacation time,

and ¶ 6-4 provides for paid meal periods with minimum

durations.

Resolution of the RICO claims will also require

interpretation of the CBA to determine how it applies, if it

does, to an issue which its express terms do not appear to

discuss: whether employees can claim all of their

compensable hours in their weekly timesheets, or whether

they must simply list time actually worked and await a

forensic recalculation of their pay.

These issues are not, as the dissent suggests, at 38–39,

merely “speculative” or “hypothetical.” Rather, they are

intrinsic to CET’s claims as pleaded and argued to the district

court and to us. Permitting the district court to proceed before

the grievance process has been exhausted would “eviscerate

a central tenet of federal labor-contract law under § 301 that

it is the arbitrator, not the court, who has the responsibility to

interpret the labor contract in the first instance.” Lueck,

471 U.S. at 220.

Notably, CET has not argued that its claims are unrelated

to the CBA. That is not surprising, for the subject of its claim,

the number of hours for which its employees are entitled to

claim payment, is at the core of an employment relationship

and is something a CBA could be expected to govern.

Instead, CET contends that the CBA is unambiguous. That is
22 COLUMBIA EXPORT TERMINAL V. ILWU

an argument that CET can make within the grievance process.

The claims cannot be resolved by mere reference to the CBA.

We thus conclude that CET’s RICO claims substantially

depend on interpretation of the CBA. The LMRA thus

precludes them and requires that federal courts ensure

“specific performance of promises to arbitrate grievances

under collective bargaining agreements.” Lincoln Mills, 353

U.S. at 451. Accordingly, we turn next to what, exactly, the

CBA promises.

C. The CBA’s arbitration provision applies to RICO

claims.

CET argues that even if § 301 could preclude its RICO

claims, it should have no preclusive effect in this instance

because the CBA’s arbitration provision does not contemplate

RICO claims and does not bind CET with regard to the ILWU

or the individually-named defendants. CET argues that the

CBA’s arbitration provision should be interpreted to exclude

any statutory claims or any disputes between the employer

and the ILWU umbrella organization, or between the

employer and the 154 individually-named defendants. These

arguments fail for several reasons.

CET’s preferred reading of the arbitration provision

directly contradicts the plain text of the CBA. By its own

terms, the CBA’s arbitration provision applies to “any

controversy or disagreement or dispute . . . as to the

interpretation, application, or violation” of “any” of its

provisions. ¶ 16-2. It then sets forth a process for the

resolution of “all grievances.” ¶ 16-4. The text of the CBA

does not say, as it could, that RICO—or any other statutory

claim—is excluded from the grievance process, even if it
COLUMBIA EXPORT TERMINAL V. ILWU 23

involves “the interpretation, application, or violation” of the

CBA.

Rather, the CBA explicitly contemplates a dispute

resolution mechanism covering the exact conduct alleged as

the basis of CET’s current claims. For example, Section XIV

lays out the standard of work expected of individual

employees (e.g., “not leaving their work station in advance of

the designated quitting time”) and goes on to state that “[a]ny

Employer may file with the union a complaint in writing

against any member of the grain section of the Union” and

allows the aggrieved employer to proceed before the Joint

Labor Relations Committee if it does not receive a

satisfactory response.

Further, the ILWU is a signatory to the agreement and is

capable of enforcing the agreement on its own behalf, and the

employees, through their bargaining representatives, are also

treated as parties to the agreement.

At most, CET’s preferred interpretation could create some

doubt as to the scope of the CBA’s grievance procedures.

Even so, “[t]he party contesting arbitrability bears the burden

of demonstrating how the language in the collective

bargaining agreement excludes a particular dispute from

arbitration.” Standard Concrete Prods., Inc. v. Gen. Truck

Drivers, Office, Food & Warehouse Union, Local 952,

353 F.3d 668, 674 (9th Cir. 2003) (quoting Phx. Newspaper,

Inc. v. Phx. Mailers Union Local 752, 989 F.2d 1077, 1080

(9th Cir. 1993)). Any “[d]oubts should be resolved in favor of

coverage.” Id. at 674 (citations omitted). CET, as the party

refuting the plain reading of the CBA’s scope, has not met its

burden of persuasion.
24 COLUMBIA EXPORT TERMINAL V. ILWU

The dissent reaches a different conclusion in large

because it disregards the presumption in favor of arbitration

under federal law. It contends, at 39, that the parties must

“expressly consent” to arbitrate RICO claims, citing Granite

Rock Co. v. Int’l Brotherhood of Teamsters, 561 U.S. 287,

298 n.6, 297 (2010). But it does not consider or account for

what else Granite Rock says.

Like this case, Granite Rock was a dispute between an

employer and a union. The CBA governing the relationship

between the parties expired in April 2004. Id. at 292. When

negotiations for a new CBA reached an impasse, the union

workers initiated a strike in June 2004. Id. Granite Rock and

the union ultimately reached an agreement on a new CBA on

July 2. Id. at 292–93. However, the new CBA did not include

a provision to hold the union and its members harmless for

any strike-related damages that the employer may have

incurred in the interim. Id. at 293. In an effort to secure the

waiver of liability, the local union, under the instruction of its

parent, the International Brotherhood of Teamsters (“IBT”),

resumed the strike even though the new CBA contained a nostrike provision. Id. Granite Rock brought a § 301 action in

federal court seeking an injunction against the ongoing strike,

and seeking damages against both the local union and IBT.

Id. at 294. The strike ultimately ended in September, but

Granite Rock continued to seek damages. Id. at 294–95.

During the litigation, a factual dispute arose as to the date

that the new CBA became effective, with Granite Rock

claiming that the agreement was ratified by union members

on July 2, and the union claiming that it was ratified later, on

August 22. Id. at 295. The district court held that the issue

was for a court to decide, and submitted the question to a

jury, which reached a unanimous verdict that the local had
COLUMBIA EXPORT TERMINAL V. ILWU 25

ratified the CBA on July 2. Id. at 295. The Ninth Circuit

reversed, reasoning that the parties’ dispute was governed by

the CBA’s arbitration clause, which covered strike-related

claims. Id.

The Supreme Court granted certiorari, and reversed,

viewing the case as an opportunity to “reemphasize the

proper framework for deciding when disputes are arbitrable.”

Id. at 297. The Court began with the proposition that “[i]t is

well settled in both commercial and labor cases that whether

parties have agreed to submit a particular dispute to

arbitration is typically an issue for judicial determination.” Id.

at 296 (internal quotation marks and brackets omitted). More

specifically, “where the dispute at issue concerns contract

formation, the dispute is generally for courts to decide.” Id.

But where, as here, the formation and validity of the contract

is not at issue, and the parties “have agreed to arbitrate some

matters pursuant to an arbitration clause, the law’s permissive

policies in respect to arbitration counsel that any doubts

concerning the scope of arbitral issues should be resolved in

favor of arbitration.” Id. at 298 (internal quotation marks and

emphasis omitted). In such cases, reviewing courts must

proceed by:

(1) applying the presumption of arbitrability

only where a validly formed and enforceable

arbitration agreement is ambiguous about

whether it covers the dispute at hand; and

(2) adhering to the presumption and ordering

arbitration only where the presumption is not

rebutted.

Id. at 301 (internal quotation marks omitted).
26 COLUMBIA EXPORT TERMINAL V. ILWU

The parties in our case do not dispute that there is a valid

CBA and that the CBA includes a grievance provision under

which they have agreed to arbitrate some matters. The dissent

does not contend otherwise. Rather, there is only a dispute as

to whether the agreement’s scope covers CET’s RICO claims.

Granite Rock directs us, therefore, to resolve any doubts

concerning the scope of issues to be referred to arbitration in

favor of arbitration. That is the process that the district court

followed to reach the conclusion that we affirm.

We do not hold, as the dissent suggests, at 45, that RICO

claims are preempted by the LMRA and subject to arbitration

in every instance, simply by virtue of being an “employmentrelated dispute.” Like state-law fraud claims, RICO claims

are not preempted or precluded by § 301 unless they are

(1) based on a right or duty created by the CBA, or (2) require

interpretation of the CBA. See, e.g., Operating Eng’rs

Pension Tr. v. Wilson, 915 F.2d 535, 537–39 (9th Cir. 1990)

(holding that § 301 does not preempt state tort claim for

fraud in the inducement of a CBA).4 Even then, reviewing

courts must still look to the scope of the CBA’s arbitration

provision to determine if those claims are arbitrable under the

framework established in Granite Rock.

The dissent’s argument that there is no presumption in

favor of arbitration, such that it must be established that the

parties agreed to each specific type of claim, is simply

inconsistent with Granite Rock, the authority it purports to

rely on, and decades of caselaw. See, e.g., United

Steelworkers of Am. v. Warrior & Gulf Navigation Co.,

4 Similarly, we have already held that federal labor law does not

preclude criminal RICO action. See, e.g., United States v. Thordarson,

646 F.2d 1323, 1331 (9th Cir. 1981).
COLUMBIA EXPORT TERMINAL V. ILWU 27

363 U.S. 574, 582–83 (1960) (“[Under § 301, an] order to

arbitrate the particular grievance should not be denied unless

it may be said with positive assurance that the arbitration

clause is not susceptible of an interpretation that covers the

asserted dispute. Doubts should be resolved in favor of

coverage.”)5

Finally, we note that CET is not permanently barred from

pursuing its claims. The dismissal by the district court was

without prejudice and properly so. CET is simply required to

exhaust the grievance process to which it agreed in the CBA

before it can proceed in federal court with those claims.

D. The Buell exception does not apply.

We address one final point. CET argues that another

precedent, Atchison, Topeka & Santa Fe Ry. Co. v. Buell,

480 U.S. 557 (1987), should control. We disagree.

In Buell, the Supreme Court held that an employee’s

claims under an independent federal statute, the Federal

Employers Liability Act, were not precluded by the RLA. Id.

at 565–67. In that decision, however, the Supreme Court

reiterated the general rule in favor of compelling arbitration

in labor disputes, while recognizing an exception for claims

based on federal statutes that contain specific substantive

guarantees for workers. Id. at 565 (“[N]otwithstanding the

5

See also Gateway Coal Co. v. United Mine Workers, 414 U.S. 368,

377–78 (1974); Nolde Bros. v. Bakery & Confectionery Workers Union,

430 U.S. 243, 254–55 (1977); AT&T Techs. v. Communs. Workers of Am.,

475 U.S. 643, 650 (1986); Inlandboatmens Union of the Pac. v. Dutra

Grp., 279 F.3d 1075, 1078 (9th Cir. 2002); SEIU v. St. Vincent Med. Ctr.,

344 F.3d 977, 985 (9th Cir. 2003); Int’l All. of Theatrical Stage Emple. v.

Insync Show Prods., Inc., 801 F.3d 1033, 1042 (9th Cir. 2015).
28 COLUMBIA EXPORT TERMINAL V. ILWU

strong policies encouraging arbitration, ‘different

considerations apply where the employee’s claim is based on

rights arising out of a statute designed to provide minimum

substantive guarantees to individual workers.’” (quoting

Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S.

728, 737 (1981))); see also id. (citing McDonald v. West

Branch, 466 U.S. 284 (1984) (CBA arbitration decision does

not preclude § 1983 claims); Barrentine, 450 U.S. 728 (CBA

arbitration decision does not preclude FLSA claims);

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) (CBA

arbitration decision does not preclude Title VII claims)).

This reading of Buell is consistent with decisions that

have stressed that “§ 301 cannot be read broadly to pre-empt

nonnegotiable rights conferred on individual employees [even

under] state law.” Livadas v. Bradshaw, 512 U.S. 107, 123

(1994). “Setting minimum wages, regulating work hours and

pay periods, requiring paid and unpaid leave, protecting

worker safety, prohibiting discrimination in employment, and

establishing other worker rights remains well within the

traditional police power of the states.” Alaska Airlines,

898 F.3d at 919. Therefore, “claims alleging violations of

such protections will not necessarily be preempted, even

when the plaintiff is covered by a CBA.” Curtis, 913 F.3d

at 1152.

We have consistently observed this exception. See, e.g.,

Felt v. Atchison, Topeka & Santa Fe Ry. Co., 60 F.3d 1416

(9th Cir. 1995) (RLA does not preclude Title VII claims);

Saridakis v. United Airlines, 166 F.3d 1272 (9th Cir. 1999)

(RLA does not preclude ADA claims).

The exception does not apply here, however. The current

claims have been brought by an employer, and the federal
COLUMBIA EXPORT TERMINAL V. ILWU 29

statute at issue, RICO, does not establish substantive

guarantees for workers.

III. Conclusion

We affirm the dismissal of this action without prejudice

by the district court. CET’s RICO claims are subject to the

CBA’s arbitration provision, and are precluded by LMRA

§ 301.

AFFIRMED.

IKUTA, Circuit Judge, dissenting:

The majority today makes two serious errors that will

throw our Labor Management Relations Act (LMRA)

jurisprudence into disarray. First, it holds that any federal

claim that is related to a collective-bargaining agreement

(CBA) is preempted or precluded by § 301 of LMRA and

must automatically be dismissed by the district court and sent

for arbitration. Majority at 22. This ruling mistakenly

applies our jurisprudence developed for Railway Labor Act

(RLA) claims to LMRA claims. Second, the majority

contradicts itself by holding that even if a federal claim is

“precluded,” a court “must still look to the scope of the

CBA’s arbitration provision to determine if those claims are

arbitrable.” Majority at 26. Here, the majority errs by

applying a presumption of arbitrability, even though the

Supreme Court has made clear that such a presumption does

not apply where the arbitration provision is unambiguous. 

Granite Rock Co. v. Int’l Brotherhood of Teamsters, 561 U.S.

287, 301 (2010). In light of these and other errors, I dissent.
30 COLUMBIA EXPORT TERMINAL V. ILWU

I

The primary purpose of § 301 of LMRA is to ensure that

federal courts can apply federal common law to CBA

disputes even when a claim is pleaded as a state-law claim. 

On its face, § 301 gives federal courts jurisdiction over

“[s]uits for violation of contracts between an employer and a

labor organization representing employees in an industry

affecting commerce.” 29 U.S.C. § 185(a).1 The Supreme

Court has interpreted this section as directing federal courts

to create and apply a federal common law for interpreting

CBAs, see Textile Workers Union v. Lincoln Mills of Ala.,

353 U.S. 448, 456 (1957), so as to ensure that uniform federal

labor law prevails over inconsistent interpretations of CBAs

by state courts, see Loc. 174, Teamsters, Chauffeurs,

Warehousemen & Helpers v. Lucas Flour Co., 369 U.S. 95,

104–05 (1962). We refer to state claims covered by § 301 of

LMRA as “preempted” and federal claims covered by § 301

of LMRA as “precluded.” Alaska Airlines, Inc. v. Schurke,

898 F.3d 904, 920 n.10 (9th Cir. 2018) (en banc). These

terms do not mean “typical conflict preemption” or

preclusion, id. at 922, but merely refer to claims that,

pursuant to § 301 of LMRA, must be decided in federal court

under federal labor law.

1

 Section 301 of LMRA, 29 U.S.C. § 185(a), states in full:

Suits for violation of contracts between an employer

and a labor organization representing employees in an

industry affecting commerce as defined in this chapter,

or between any such labor organizations, may be

brought in any district court of the United States having

jurisdiction ofthe parties, without respect to the amount

in controversy or without regard to the citizenship of

the parties.
COLUMBIA EXPORT TERMINAL V. ILWU 31

If a plaintiff brings a state-law claim in state court, courts

apply a two-part inquiry, asking whether (1) the claim alleges

a breach of a CBA or (2) requires the interpretation of the

CBA. See, e.g., Lingle v. Norge Div. of Magic Chef, Inc.,

486 U.S. 399, 405–07 (1988); Schurke, 898 F.3d at 920. If

the court finds that § 301 of LMRA applies under this twopart test, then the defendants may remove the case to federal

court through the jurisdictional doctrine of “complete

preemption,” which is “an exception to the well-pleaded

complaint rule.” Schurke, 898 F.3d at 923 n.15. Once the

federal court determines that removal under § 301 of LMRA

was proper, the jurisdictional inquiry for preemption is over. 

By contrast, when a federal claim is brought in federal court

in the first instance, no jurisdictional inquiry under § 301 of

LMRA is necessary. Therefore, in this context, § 301 has

little work to do.2

Once a claim (state or federal) is properly in federal court,

the court’s inquiry under LMRA is, at its core, a question of

contract interpretation. See id. at 918 n.7.3If the claim

2

Indeed, given the limited nature of LMRA’s impact in this context,

a sister circuit has concluded that “the motivating purpose of § 301

preemption simply does not apply” to federal claims. Watts v. United

Parcel Serv., Inc., 701 F.3d 188, 190–93 (6th Cir. 2012). We have not

directly ruled on this point. Cf. Schurke, 898 F.3d at 920 & n.10.

3 Although the majority claims that other circuits apply a

“preemption” or “preclusion” test to consider federal claims in the context

of labor disputes, Majority at 18 n.3, the LMRA cases cited by the

majority merely determined that an employee’s Fair Labor Standards Act

claims required an interpretation of the CBA, and therefore were subject

to LMRA’s statute of limitations. See Vadino v. A. Valey Eng’rs, 903

F.2d 253, 266 (3d Cir. 1990); Martin v. Lake Cnty. Sewer Co., 269 F.3d

673, 679 (6th Cir. 2001). These cases do not affect the conclusion that,

after federal jurisdiction exists, we are tasked only with deciding a
32 COLUMBIA EXPORT TERMINAL V. ILWU

alleges a breach of the CBA or requires interpretation of the

CBA, then the federal court need only read, apply, and

enforce the CBA, including any applicable arbitration

provision. There is no “presumption that labor disputes are

arbitrable whenever they are not expressly excluded from an

arbitration clause.” Granite Rock, 561 U.S. at 301 n.8. If the

CBA or labor contract does not require that the dispute be

resolved by arbitration, then the court must resolve the

dispute itself by applying the terms of the CBA pursuant to

federal common labor law. See, e.g., Painting & Decorating

Contractors Ass’n v. Painters & Decorators Joint Comm.,

707 F.2d 1067, 1070–72 (9th Cir. 1983).

This contractual focus differentiates LMRA from the

RLA, 45 U.S.C. §§ 151–65, which covers the railroad and

airline industries. The standard for determining when a statelaw claim is preempted by the RLA is “virtually identical to

the pre-emption standard the Court employs in cases

involving § 301 of the LMRA.” Hawaiian Airlines, Inc. v.

Norris, 512 U.S. 246, 260 (1994). But if the RLA’s disputeresolution provisions apply to a claim, then the statute itself

“requires submission of such disputes to internal disputeresolution processes and then to a division of the National

Adjustment Board or an arbitration board selected by the

parties.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d

1241, 1245 (9th Cir. 2009). Because the text of the RLA

mandates arbitration of any covered claim, it provides no

guidance in determining whether a claim precluded by

LMRA must be arbitrated. Cf. Hubbard v. United Airlines,

question of contract interpretation to determine whether the federal claims

must be arbitrated. See Granite Rock, 561 U.S. at 310–11.
COLUMBIA EXPORT TERMINAL V. ILWU 33

Inc., 927 F.2d 1094, 1097–98 (9th Cir. 1991), abrogated in

part, Norris, 512 U.S. at 263 n.9.4

Here, Columbia Export Terminal (CET) brought federal

claims in federal court, so no jurisdictional inquiry is required

to ensure the propriety of removing the case from state court. 

And because § 301 of LMRA applies, rather than the RLA,

this case presents only a question of contract interpretation,

see Granite Rock, 561 U.S. at 311, and we must determine

whether CET’s claims as pleaded are subject to the CBA’s

grievance and arbitration procedures. In short, the only

question at issue here is whether CET’s complaint raises

claims that the parties intended to be decided in the arbitral

forum established by the CBA among the parties.5

Accordingly, to the extent the majority holds that if a federal

claim is “grounded in the provisions of a CBA or requiring

interpretation of a CBA,” Majority at 14, then the claim is

4 Thus, the majority’s reliance on RLA cases that required federal

RICO claims to go to RLA-mandated adjustment boards, Majority at 18

& n.3, is inapposite, as these cases do not provide guidance on the

question whether LMRA can “preclude” CET’s RICO claims. Cf.

Underwood v. Venango River Corp., 995 F.2d 677, 685 (7th Cir. 1993),

overruled in part, Westbrook v. Sky Chefs, Inc., 35 F.3d 316, 317–18 (7th

Cir. 1994). And the majority’s reliance on ERISA cases involving RLAmandated arbitration proves even less persuasive, because ERISA itself

disclaims any effect on or conflict with earlier enacted federal laws. See

29 U.S.C. § 1144(d).

5 The majority implicitly acknowledges that the only question here is

whether the parties agreed to arbitrate the types of claims raised in CET’s

complaint. Thus, the majority explains that the “LMRA requires disputes

arising from the CBA to be funneled, if so required by the CBA, to

arbitration,” Majority at 17 n.2, and the majority's “preclusion” analysis

is merely intended to “direct the [federal statutory claim] to the proper

adjudicator,” Majority at 17.
34 COLUMBIA EXPORT TERMINAL V. ILWU

precluded by § 301 of LMRA and must be dismissed by the

district court for arbitration, Majority at 22, it is wrong.

II

After consumingmultiple pages with its theory that RICO

claims are “precluded by § 301” and subject to the two-part

test for preemption, Majority at 12–22, the majority suddenly

shifts gear and indicates that this conclusion is irrelevant,

because, even after the two-step preemption test, “reviewing

courts must still look to the scope of the CBA’s arbitration

provision to determine if those claims are arbitrable under the

framework established in Granite Rock.” Majority at 26. 

Although this conclusion is correct (and makes the majority’s

lengthy preclusion analysis mere dicta), the majority errs by

misunderstandingGranite Rock’s analysis of how courtsmust

determine whether an arbitration provision in a CBA covers

the claim at issue.

A

In Granite Rock, the Ninth Circuit made the same mistake

the majoritymakes here: it applied the presumption that “any

doubts concerning the scope of arbitral issues should be

resolved in favor of arbitration,” and erroneously held that a

LMRA dispute was governed by a CBA’s arbitration clause. 

561 U.S. at 298. The Supreme Court reversed. As Granite

Rock explained, the Supreme Court has never “held that

courts may use policy considerations as a substitute for party

agreement,” id. at 303, or “held that this policy overrides the

principle that a court may submit to arbitration ‘only those

disputes . . . that the parties have agreed to submit,’” id.

at 302 (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S.

938, 943 (1995)). Rather, a court must apply “the proper
COLUMBIA EXPORT TERMINAL V. ILWU 35

framework for deciding when disputes are arbitrable.” Id.

at 297.

Under the Granite Rock framework, a court must first use

ordinary principles of contract interpretation to determine if

the arbitration provision is “best construed to encompass the

dispute.” Id. at 303. “[A] court may order arbitration of a

particular dispute only where the court is satisfied that the

parties agreed to arbitrate that dispute.” Id. at 297. This

means that a court must first “resolve any issue that calls into

question the formation or applicability of the specific

arbitration clause that a party seeks to have the court

enforce.” Id.

Then, only “where a validly formed and enforceable

arbitration agreement is ambiguous about whether it covers

the dispute at hand,” may a court apply “the presumption of

arbitrability” and ask whether the arbitration provision is

reasonably construed as covering the asserted dispute. Id.

at 301. Even if the court concludes the arbitration provision

is susceptible to such an interpretation, and therefore the

presumption of arbitrability applies, a court may order

arbitration “only where the presumption is not rebutted.” Id.

B

Applying this framework here, we begin by construing

the text of the CBA, using ordinary principles of contract

interpretation, to determine which claims must be decided by

the CBA’s grievance and arbitration procedures. Section

XVI of the CBA provides “procedures for handling

grievances and disputes.” The CBA defines a grievance as

follows:
36 COLUMBIA EXPORT TERMINAL V. ILWU

A grievance shall be defined as any

controversy or disagreement or dispute

between the applicable ILWU Local Union

and the Employer for the particular grain

elevator(s) involved as to the interpretation,

application, or violation of any provision of

this Agreement.

The CBA provides that all grievances between the local

unions and CET must be resolved pursuant to the procedures

in Section XVI of the CBA. Under Section XVI, the parties

must attempt to resolve the grievance informally. If it is not

resolved, it must be referred to a “Joint Labor Relations

Committee” comprised of representatives from “the

applicable ILWU Local Union” and “the applicable

Employer.” The committee has “the power and duty to

investigate and adjudicate all grievances or disagreements or

disputes arising under this Agreement.” If the committee is

unable to resolve the dispute, then the committee defines “the

question or questions in dispute,” and either party may refer

the question “to an impartial arbitrator.” The CBA then

outlines the procedure for conducting arbitration. Finally,

CET “shall also have the right to file a grievance and to

follow the above grievance procedure in an effort to resolve

it.”

C

After reviewing the relevant provisions of the CBA

regarding which claims are subject to its grievance and

arbitration procedures, we next consider the nature of CET’s

claims, beginning with an accurate description of CET’s

claims “as pleaded.” See Schurke, 898 F.3d at 924 (holding

that, in determining whether a state law claim requires the
COLUMBIA EXPORT TERMINAL V. ILWU 37

interpretation of a CBA, a federal court must consider the

claim “as pleaded”). According to the operative complaint,

CET employs union-represented workers to load grain for

international shipping at a terminal in Portland, Oregon

(Terminal 5). CET sued the International Longshore and

Warehouse Union (ILWU) and approximately 160 individual

hourly workers who are members of two local labor

organizations chartered by ILWU. According to the

complaint, the defendants, “with specific intent to defraud,

jointly entered into a conspiracy and scheme” to “routinely

and systematically, over a period of more than four years,”

under-staff jobs and submit time sheets “indicating time

worked for employees who did not work, and were not even

at Terminal 5, for some or all of the indicated time.” The

complaint alleged that workers “billed hours and received

unearned payment” for time claimed on their time sheets

when they were not present at Terminal 5. Among other

practices, workers split shifts “with one working the first half

and the other working the second half, yet submitting time

sheets indicating falsely that both had worked the full shift.” 

Another practice involved workers who were present at the

terminal submitting time sheets showing that an absent

worker, who had not showed up, “worked a full shift.” The

complaint alleged that through these fraudulent practices,

workers illegally obtained over $5 million from CET.

Based on these factual allegations, the complaint brought

seven RICO claims.6 The complaint alleged that each

6These claims include allegations that the defendants invested income

derived from a pattern of racketeering activity in violation of 18 U.S.C.

§ 1962(a), that ILWU acquired an indirect interest in and indirect control

of CET through a pattern of racketeering activity in violation of 18 U.S.C.

§ 1962(b), that the defendants participated in the conduct of the local
38 COLUMBIA EXPORT TERMINAL V. ILWU

submission of a fraudulent time sheet constituted a predicate

act of mail or wire fraud under 18 U.S.C. § 1341 and § 1343,

and that the defendants engaged in a pattern of racketeering

activity.

D

The key question is whether CET’s claims, as pleaded,

must be arbitrated under the CBA. To make this

determination, we apply principles of contract interpretation,

as informed by the common law of federal labor law and

labor arbitration precedents. See Standard Concrete Prods.,

Inc. v. Gen. Truck Drivers, Office, Food &Warehouse Union,

Loc. 952, 353 F.3d 668, 673–75 (9th Cir. 2003); see also M

& G Polymers USA, LLC v. Tackett, 574 U.S. 427, 435

(2015); Granite Rock, 561 U.S. at 298 n.6.

Federal common law provides important guidance for

interpreting the key terms in the CBA. Under federal

common law, we construe the word “interpretation” narrowly

as meaning “something more than ‘consider,’ ‘refer to,’ or

‘apply.’” Schurke, 898 F.3d at 921 (quoting Balcorta v.

Twentieth Century-Fox Film Corp., 208 F.3d 1002, 1108 (9th

Cir. 2000)). Because a plaintiff’s claim, “as pleaded,” drives

the analysis, there must be an “active dispute” as to the

interpretation of a CBA provision and not simply a

“‘hypothetical connection between the claim and the terms of

the CBA.’” Schurke, 898 F.3d at 921 (quoting Cramer v.

Consol. Freightways, Inc., 255 F.3d 683, 691 (9th Cir. 2001)

(en banc)). A court must wait until an active dispute arises;

unions through a pattern of racketeering activity in violation of 18 U.S.C.

§ 1962(c), and that the defendants conspired to violate the prior three

sections in violation of 18 U.S.C. § 1962(d).
COLUMBIA EXPORT TERMINAL V. ILWU 39

it cannot rely on the “speculative possibility” of an

interpretive dispute or the “possibility that things could

change down the road.” McCray v. Marriott Hotel Servs.,

Inc., 902 F.3d 1005, 1013 (9th Cir. 2018). Nor does an

interpretive dispute exist merely because a defendant relies

on CBA provisions as a defense to a plaintiff’s claim. See,

e.g., Ward v. Circus Circus Casinos, Inc., 473 F.3d 994,

997–99 (9th Cir. 2007); Detabali v. St. Luke’s Hosp.,

482 F.3d 1199, 1203–04 (9th Cir. 2007); Matson v. United

Parcel Serv., Inc., 840 F.3d 1126, 1134–35 (9th Cir. 2016).

Using ordinary principles of contract interpretation, it is

immediately apparent that the arbitration provision in the

CBA does not cover CET’s claims against ILWU. The

CBA’s interpretation of “grievance” is limited to

controversies, disagreements, or disputes “between the

applicable ILWU Local Union and the Employer for the

particular grain elevator(s).” Therefore, it is unambiguous

that CET’s claims against ILWU falls outside the definition

of a grievance. See, e.g., Standard Concrete, 353 F.3d at

674–75. Accordingly, CET has no obligation to arbitrate its

claims against ILWU. The majority errs in holding

otherwise. Majority at 22–27.

Second, it is immediately apparent that the parties did not

agree to arbitrate federal statutory claims in general, or RICO

claims in particular. The parties to the CBA could have

agreed to do so, because courts will enforce agreements to

arbitrate federal statutory claims, see 14 Penn Plaza LLC v.

Pyett, 556 U.S. 247, 263–64 (2009). But, for such an

agreement to be enforceable, the parties must expressly

consent to such a provision, see id.; Granite Rock, 561 U.S.

at 300, and any CBA requirement to arbitrate such claims

“must be particularly clear,” Wright v. Universal Mar. Serv.
40 COLUMBIA EXPORT TERMINAL V. ILWU

Corp., 525 U.S. 70, 79–80 (1998). The CBA’s grievance and

arbitration provisions here do not expressly agree to arbitrate

RICO claims, or any other statutory claims, or authorize the

arbitrators to resolve such claims.

Therefore, unless the CBA’s arbitration provision is

ambiguous, it would apply to CET’s claims only if the CBA’s

definition of “grievance” is best construed as covering the

claims. The word “grievance” is defined in the CBA as “any

controversy or disagreement or dispute” involving “the

interpretation, application, or violation of any provision of

this Agreement.” Under federal labor law, a dispute over “the

interpretation or application” of a CBA refers to “a claim

arising out of a CBA.” Norris, 512 U.S. at 254. Because

CET does not allege a violation of the CBA, and there is no

dispute over how a CBA provision applies to CET’s claims,

the key question is whether litigating CET’s RICO claim

“requires interpretation of a CBA.” Schurke, 898 F.3d at 921. 

As noted above, under federal common labor law,

“‘interpretation’ is construed narrowly,” and covers claims

only “to the extent there is an active dispute over ‘the

meaning of contract terms.’” Id. (quoting Livadas v.

Bradshaw, 512 U.S. 107, 124 (1994)).

Based on a straightforward application of ordinary

contract interpretation principles, resolving CET’s RICO

claims does not require interpretation of the CBA. The

complaint simply alleges that the individual workers

submitted fraudulent time sheets claiming hours worked at

Terminal 5 during periods in which they were not physically

present at the terminal. Proving the elements of mail and

wire fraud here requires only a factual inquiry into whether

employees claimed they were working when they were not

physically on site. “The need for a ‘purely factual inquiry
COLUMBIA EXPORT TERMINAL V. ILWU 41

that does not turn on the meaning of any provision of a

collective-bargaining agreement,’ however, is not cause for

preemption under section 301,” Burnside v. Kiewit Pac.

Corp., 491 F.3d 1053, 1072 (9th Cir. 2007) (quoting Lingle,

486 U.S. at 407) (cleaned up), meaning that a purely factual

inquiry does not require an interpretation of a CBA under our

two-part test.

The defendants’ arguments to the contrary fail. Because

it is not possible to explain how CET’s claims, “as pleaded,”

require construing the CBA, Schurke, 898 F.3d at 924, the

defendants take the easier route of recharacterizing the

complaint. While CET’s complaint alleges that defendants

conspired to defraud CET by making false claims about their

presence for work at Terminal 5, the defendants reinvent the

complaint as alleging instead that CET overpaid the

individual defendants for not working hard enough while on

site. The majority follows this same approach, pretending

that CET is merely disputing whether defendants billed hours

that were or were not “expressly authorized by CET and

charged in accordance with the CBA.” Majority at 20.

Having recharacterized CET’s complaint in this way, the

defendants then argue that interpretation of the CBA is

necessary to address their defense that the CBA’s pay

guarantees, minimum staffing levels, longstanding industry

practices, and the parties’ bargaining discussions justify the

employees’ wage claims, because employees are entitled to

compensation for certain time not worked. The majority

again echoes this approach, identifying hypothetical defenses

that the defendants could raise to “excuse the workers from

being present at the time of work reported on the timesheets”

or to “explain why workers are compensated for time not

actually worked.” Majority at 20. Indeed, the majority goes
42 COLUMBIA EXPORT TERMINAL V. ILWU

so far as to suggest there could be an interpretive dispute over

whether defendants were entitled to compensation for paid

holidays.7 Majority at 21. The majority concludes that the

mere existence of these hypothetical defenses in the CBA

means that adjudication of CET’s re-imagined claims will

substantially depend on interpretation of the CBA. Majority

at 20–22.

These arguments are meritless. We must consider CET’s

claims “as pleaded,” and those claims allege only that

defendants engaged in fraud by claiming they were present at

Terminal 5 when they were not. No contract terms in the

CBA authorize that sort of fraud, so interpretation of the CBA

is not required. The defendants’ possible future defenses do

not turn CET’s claims into “grievances” as defined in the

CBA. The Supreme Court has made clear that a party cannot

manufacture a CBA dispute through raising a defense. See

Caterpillar, Inc v. Williams, 482 U.S. 386, 398–99 (1987);

Schurke, 898 F.3d at 921. While defendants may defend

themselves on the ground that CET’s allegations are factually

erroneous (for instance, because workers arrived at the

terminal but then were released from work as permitted under

the CBA, because weather prevented work, because workers

get a paid holiday for Christmas Day, or because CET could

not provide sufficient work), such factual questions or

excuses do not create any disputes about the interpretation of

CBA provisions at this stage of the litigation. Nor does the

defendants’ defense that the alleged fraud did not result in

overbilling raise an interpretive dispute. As our en banc court

has explained, a defendant’s allegation of “a hypothetical

7

 Given that the CBA helpfully defines Christmas Day as December

25, there is unlikely to be an interpretive dispute over the defendants’

entitlement to payment for this holiday.
COLUMBIA EXPORT TERMINAL V. ILWU 43

connection between the claim and the terms of the CBA is not

enough” to conclude that the claim “cannot be resolved

without interpreting the applicable CBA.” Cramer, 255 F.3d

at 691.

The majority’s further arguments that CET’s claims are

grievances under the CBA are meritless. First, the majority

places weight on CET’s alleged failure to argue “that its

claims are unrelated to the CBA.” Majority at 21. It then

argues that CET’s claims are related to the CBA because “the

subject of its claim, the number of hours for which its

employees are entitled to claim payment, is at the core of an

employment relationship.” Majority at 21. Factually, of

course, the majority is wrong: CET argued on appeal that

“the district court erred in finding that CET’s RICO claim

required substantial analysis of the CBA,” because “CET’s

complaint makes no reference to the CBA,” “does not rely

on” the CBA, and the complaint “alleges simply that the

ILWU and Members submitted fraudulent timecards claiming

they worked time that they did not work.” But more

important, for purposes of determiningwhether CET’s claims

are “grievances” subject to resolution under the CBA, the

existence of an employment relationship between CET and

the defendants is not dispositive. As the Supreme Court has

explained, “not every dispute concerning employment, or

tangentially involving a provision of a collective-bargaining

agreement, is pre-empted by § 301 or other provisions of the

federal labor law.” Caterpillar, 482 U.S. at 396 n.10 (quoting

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985)). 

CET must only argue (as it did persuasively) that resolving its

RICO claims does not require resolving any active

interpretive dispute as to the particular meaning of CBA

provisions. Our task, in turn, is merely to consider whether

CET’s claims are “grievances” for purposes of the CBA.
44 COLUMBIA EXPORT TERMINAL V. ILWU

Second, the majority argues that CET’s claims are

“grievances” covered by the CBA because the CBA

provisions “could excuse” workers from being present or

“could explain” compensation for time not worked. Majority

at 20. But the CBA does not define a “grievance” as

including possible defenses that may be raised by a

defendant. The majority’s ruling is contrary to federal

common labor law, which holds that unless there is a

currently existing, active dispute requiring interpretation of

the CBA, such a claim does not require interpretation of the

CBA. See Cramer, 255 F.3d at 691–92. Rather, “we have

held that a CBA provision does not trigger preemption when

it is only potentially relevant to the state law claims, without

any guarantee that interpretation or direct reliance on the

CBA terms will occur.” Humble v. Boeing Co., 305 F.3d

1004, 1010 (9th Cir. 2002); see also Dent v. Nat’l Football

League, 902 F.3d 1109, 1116–17 (9th Cir. 2018) (same). If

CET broadens its theory of liability later in litigation, the

defendants may again raise an argument under § 301 of

LMRA, and the court can then decide whether to refer

interpretive disputes to the CBA’s arbitration procedures at

that time. See McCray, 902 F.3d at 1013 & n.3. Likewise, if

disputes arise in the calculation of damages, then relevant

interpretive disputes may be referred to the CBA’s arbitration

procedures. See, e.g., Lingle, 486 U.S. at 413 n.12; Schurke,

898 F.3d at 922 & n.14. But because no active interpretive

dispute exists at this time as CET’s claims are pleaded, these

claims are not subject to resolution under the CBA.8 Nor

8 Therefore, the majority has it backward in saying that CET must

first “exhaust the grievance process” and then return to federal court with

its claims. Majority at 27. Moreover, the majority’s promise that CET

can return to federal court after arbitration is an empty one. This promise

would make sense if the majority held it was necessary for arbitration to
COLUMBIA EXPORT TERMINAL V. ILWU 45

would analogous state law claims be removable under § 301

of LMRA if CET had raised the claims in state court.

Because CET’s RICO claims are not a “dispute . . . as to

the interpretation, application, or violation of any provision

of” the CBA, there is no “grievance,” as defined in the CBA. 

The arbitration agreement is not “ambiguous about whether

it covers the dispute at hand,” Granite Rock, 561 U.S. at 310,

because the CBA is not susceptible to an interpretation that

CET’s RICO claims require an interpretation of the CBA.

There is no ambiguity that would give rise to a presumption

of arbitrability. Because “a court may submit to arbitration

only those disputes that the parties have agreed to submit,” id.

at 302 (cleaned up), the majority errs in holding that CET’s

claims are subject to the CBA’s grievance and arbitration

procedure.

E

The majority opinion is both erroneous and internally

inconsistent. First, it presents an erroneous theory of LMRA

preclusion. Under the majority’s new rule, almost any

employment-related dispute between parties covered by a

CBA is precluded and sent to arbitration, even though the

Supreme Court has expressly disclaimed this approach and,

unlike the RLA, LMRA itself does not require arbitration of

resolve a key issue in CET’s RICO claims, and then CET could litigate the

remainder. Cf. Schurke, 898 F.3d at 922 & n.14. But because the

majority does not and cannot do so—because there is no such key

issue—its promise is empty.
46 COLUMBIA EXPORT TERMINAL V. ILWU

every precluded claim. See Schurke, 898 F.3d at 918 n.7.9

Second, even though the majority goes on to hold that it

remains necessary to determine whether CET’s claims are

covered by the arbitration provision, the majority fails to

apply the Granite Rock framework correctly, and instead

holds that the CBA applies based on meritless, hypothetical

connections to CBA provisions. Cf. Schurke, 898 F.3d

at 921; Cramer, 255 F.3d at 691–92. This approach is

directly contrary to the Supreme Court’s labor arbitration

precedents, which prevent a court from compelling arbitration

of disputes that the parties have not agreed to arbitrate.

The majority offers the reassurance that workers, at least,

will not be compelled to arbitrate all their disputes, because

our cases allow workers to litigate claims based on statutes

that provide “substantive guarantees for workers.” Majority

at 27–28. Under this rationale, only employers will have to

arbitrate their claims without their consent. But the Supreme

Court’s labor arbitration precedent does not permit this

lopsided interpretation of LMRA. If the CBA expressly

requires the arbitration of a federal statutory claim, the

worker is bound to arbitration, regardless of any “substantive

guarantee.” See Penn Plaza, 556 U.S. at 256 n.5, 263–64. 

And by the same token, if the employer did not consent to

arbitrate a federal statutory claim, then no labor policy

considerations can require the employer to do so. See

Granite Rock, 561 U.S. at 299, 303.

9 The majority disputes this characterization, Majority at 26–27, but

the majority points to no basis for its conclusion that CET’s RICO claims

are “substantially dependent on interpretation of the CBA” (Majority

at 20) other than its reasoning that the defendants who allegedly defrauded

CET were parties to a CBA and can now manufacture CBA-based

defenses to compel arbitration.
COLUMBIA EXPORT TERMINAL V. ILWU 47

Taken together, the majority’s manymisstatements of law

upend the carefully limited scope of § 301 of LMRA that our

circuit has so consistently upheld and give future defendants

new, previously rejected, ways of depriving CBA-covered

plaintiffs of their rights to a judicial forum and to vindication

of independent statutory rights. I therefore dissent.

BENNETT, Circuit Judge, joined by IKUTA, R. NELSON,

BUMATAY, and VANDYKE, Circuit Judges, dissenting

from the denial of rehearing en banc:

Our Labor Management Relations Act (“LMRA”) § 301

preemption doctrine developed to prevent state courts from

interpreting collective bargaining agreements (“CBAs”)

inconsistently under state law. Teamsters v. Lucas Flour Co.,

369 U.S. 95, 104 (1962) (“[I]n enacting [§] 301 [of the

LMRA,] Congress intended doctrines of federal labor law

uniformly to prevail over inconsistent local rules.” (emphasis

added)). We have never applied that reasoning to preempt (or

“preclude”) a federal statutory claim. But in Alaska Airlines

Inc. v. Schurke, we erroneously suggested in a footnote that

§ 301 “precludes” federal statutory claims in the same way it

preempts state law claims. 898 F.3d 904, 920 n.10 (9th Cir.

2018) (en banc) (“The same principle [of LMRA preemption]

applies to federal law claims, although they might better be

described as ‘precluded.’”). Led astray by this footnote, the

panel entrenches the position that § 301 can preclude federal

statutory claims. 

But the footnote was wrong, and the panel is wrong.

“Whether called ‘preemption’ or ‘preclusion,’” Op. 18, the

LMRA does not bar a federal statutory claim brought in
48 COLUMBIA EXPORT TERMINAL V. ILWU

federal court. Today, the barred claim is a Racketeer

Influenced and Corrupt Organizations Act (“RICO”) claim

alleging a $5.3 million mail and wire fraud racketeering

scheme. Tomorrow, the barred claim may be based on the

Americans with Disabilities Act (“ADA”) or Title VII of the

Civil Rights Act of 1964. We should have reheard this case

en banc to excise this erroneous preclusion notion from our

jurisprudence, and I respectfully dissent from our failure to

do so.

I start with what ought to be a very straightforward

premise—preclusion of federal claims is inconsistent with the

purpose of § 301, which is primarily a jurisdictional statute

intended to ensure the uniform interpretation of CBAs. And

because preclusion of federal statutory claims is so divorced

from the purpose of § 301, the panel’s idea of preclusion

creates absurd and confusing results, as this case shows. But

the most fundamental problem is the most obvious. A statute

passed by Congress to help maintain a uniform body of

federal labor law does not somehow nullify a different statute

passed by Congress to, among other objectives, eradicate

organized attempts to defraud through a pattern of

racketeering activity. Cf. Alexander v. Gardner-Denver Co.,

415 U.S. 36, 49–50 (1974) (“In submitting his grievance to

arbitration, an employee seeks to vindicate his contractual

right under a collective-bargaining agreement. By contrast,

in filing a lawsuit under Title VII, an employee asserts

independent statutory rights accorded by Congress.”).

Though this is the panel’s most fundamental error, it is

not the only one. The panel applies a presumption of

arbitrability contrary to Supreme Court precedent and creates

an agreement to arbitrate RICO claims, even though the
COLUMBIA EXPORT TERMINAL V. ILWU 49

parties never signed such an agreement.1 By doing so, the

panel invents a new rule. Absent an explicit arbitration

exclusion clause, every issue that could relate to a CBA must

be arbitrated—even if the parties never specifically agreed to

arbitrate that issue. Contra Granite Rock Co. v. Int’l Bhd. of

Teamsters, 561 U.S. 287, 297 (2010) (“[A] court may order

arbitration of a particular dispute only where the court is

satisfied that the parties agreed to arbitrate that dispute.”). 

The panel also does not provide any coherent principle that

limits its new rule. If alleged fraud must be arbitrated as the

panel claims, which other RICO predicate acts and federal

statutory claims must be arbitrated? We should have reheard

this case en banc to correct all these errors.

I.

The purpose of LMRA preemption of state law claims is

to prevent divergent interpretations of a CBA. “The interests

in interpretive uniformity and predictability that require that

labor-contract disputes be resolved by reference to federal

law also require that the meaning given a contract phrase or

term be subject to uniform federal interpretation.” AllisChalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985). And our

test for § 301 preemption reflects that purpose: state law

claims are preempted if they are “founded directly on rights

created by collective-bargaining agreements” or are

“substantially dependent on analysis of a [CBA].” 

Caterpillar Inc. v. Williams, 482 U.S. 386, 394 (1987)

1 Even if plaintiff Columbia Export Terminal, LLC (“CET”) and the

International Longshore and Warehouse Union (“ILWU”) had contracted

to arbitrate such a dispute, which they did not, CET’s RICO claim would

still not be precluded.
50 COLUMBIA EXPORT TERMINAL V. ILWU

(quotation marks omitted); see also, e.g., McCray v. Marriott

Hotel Servs., Inc., 902 F.3d 1005, 1010 (9th Cir. 2018).

When a plaintiff brings federal claims in federal court, the

need for LMRA preemption disappears. The supposed

preclusion inquiry is whether the application of a federal

statute would be plainly inconsistent with or frustrate the

purpose of another federal statute. See United States v. Est.

of Romani, 523 U.S. 517, 533 (1998). But how can any

federal claim (much less a RICO claim) brought in federal

court cause interpretations or applications of a CBA that

conflict with § 301? A federal claim brought in federal court

will necessarily be consistent with § 301’s jurisdictional rule. 

And even if adjudicating a federal claim requires

interpretation of a CBA, the court would simply apply federal

common law, thus eliminating the risk of divergent

interpretations of the CBA. See Textile Workers Union of

Am. v. Lincoln Mills of Ala., 353 U.S. 448, 451, 456 (1957). 

As Judge Ikuta noted in her dissent, “§ 301 has little work to

do” here. Dissent, 31.

The panel conflates LMRA and Railway Labor Act

(“RLA”) preemption2in an attempt to justify the untenable

position that “[w]hether called ‘preemption’ or ‘preclusion,’

[this] approach applies whether the conflicting statute is a

federal or state provision.” Op. 18. The panel claims that

“[i]n Hubbard [v. United Airlines, Inc., 927 F.2d 1094, 1098

(9th Cir. 1991)] . . . we held that the RLA, which . . .

preceded the enactment of RICO, preempted a fraud claim

under RICO.” Op. 18. The panel also claims that Atchison,

2

“The RLA establishes a comprehensive scheme governing labor

relations on railroads and airlines.” Barthelemy v. Air Lines Pilots Ass’n,

897 F.2d 999, 1007 (9th Cir. 1990) (per curiam).
COLUMBIA EXPORT TERMINAL V. ILWU 51

Topeka & Santa Fe Railway Co. v. Buell, 480 U.S. 557

(1987), “reiterated the general rule in favor of compelling

arbitration in labor disputes.” Op. 27 (quoting 480 U.S. at

565–67).

But there is no basis to the panel’s claim that preemption

under the RLA and LMRA is the same, or its claim that this

incorrect premise somehow allows the LMRA to preclude

federal statutory claims. Although both “RLA and LMRA

§ 301 preemption are, in effect, a kind of ‘forum’

preemption,” Alaska Airlines, 898 F.3d at 922, the two

statutes are very different. In the RLA, Congress established

a mandatory arbitral forum superintended by the National

Railroad Adjustment Board for disputes relating to the

formation, interpretation, or application of relevant CBAs. 

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994);

Union Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs &

Trainmen Gen. Comm. of Adjustment, 558 U.S. 67, 74 (2009). 

Thus, some federal claims brought in federal court that

involve the interpretation of such CBAs are in the wrong

forum. See Hubbard, 927 F.2d at 1098.

In contrast, § 301 was enacted to ensure “specific

performance of promises to arbitrate grievances under

[CBAs].” Lincoln Mills, 353 U.S. at 451; see id. at 452

(“Once parties have made a collective bargaining contract,

the enforcement of that contract should be left to the usual

processes of the law and not to the National Labor Relations

Board.” (quoting H.R. Conf. Rep. No. 510, 80th Cong., 1st

Sess., p.42)). That is, the LMRA itself does not prescribe the
52 COLUMBIA EXPORT TERMINAL V. ILWU

arbitration mechanism that parties must use, but merely

facilitates the enforcement of CBAs through federal courts.3

Unlike the RLA, the LMRA “does not mandate

arbitration, nor does it prescribe the types of disputes to be

submitted to arbitration under bargaining agreements.” 

Hawaiian Airlines, 512 U.S. at 263 n.9. So even though we

use the same test to determine preemption under the RLA and

the LMRA, the results are different. When a claim is

preempted under the RLA, the plaintiff’s claim is sent to the

RLA’s mandatory arbitration process. See Hawaiian

Airlines, 512 U.S. at 252–53. But when a state law claim is

preempted under the LMRA, it “must either be treated as a

§ 301 claim” under the complete preemption doctrine “or

dismissed as pre-empted by federal labor-contract law,” thus

extinguishing the state law claim. Allis-Chalmers, 471 U.S.

at 220. If the claim is treated as a federal common law

contract claim, we might dismiss it “for failure to make use

of the grievance procedure established in the collectivebargaining agreement.” Id. at 220–21 (emphasis added).4

But there is no basis for precluding a federal statutory claim

under the LMRA or RLA. Indeed, contrary to the panel’s

3 Of course, a federal court may be unable to decide a federal claim

if the parties have agreed to arbitrate it. But an agreement to arbitrate a

claim does not mean the claim is preempted or precluded. A party, for

example, cannot bring any claim that the party has released or that is

barred by issue or claim preclusion. See, e.g., Lucky Brand Dungarees,

Inc. v. Marcel Fashions Grp., Inc., 140 S. Ct. 1589, 1594 (2020). But that

doesn’t mean the claim is “precluded,” as the panel uses the term.

4

“As a general rule in cases to which federal law applies, federal

labor policy requires that individual employees wishing to assert contract

grievances must attempt use of the contract grievance procedure agreed

upon by employer and union as the mode of redress.” Republic Steel

Corp. v. Maddox, 379 U.S. 650, 652 (1965) (emphasis added).
COLUMBIA EXPORT TERMINAL V. ILWU 53

position, Buell held that “[t]he fact that an injury otherwise

compensable under the [Federal Employers’ Liability Act

(“FELA”)] was caused by conduct that may have been

subject to arbitration under the RLA does not deprive an

employee of his opportunity to bring an FELA action.” 480

U.S. at 564.

Because the panel’s erroneous extension of LMRA

preemption to federal law claims contravenes longstanding

Supreme Court caselaw, the panel opinion creates a circuit

split. The Sixth Circuit has correctly recognized that, when

a claim is “based on a federal cause of action and is in federal

court, there is no danger of divergent application of a CBA’s

provisions by state courts; thus, the motivating purpose of

§ 301 preemption simply does not apply.” Watts v. United

Parcel Serv., Inc., 701 F.3d 188, 192 (6th Cir. 2012). The

Sixth Circuit declined to extend § 301’s preemption analysis

to plaintiff’s ADA claim and instead concluded that “§ 301 of

the LMRA does not preempt a claim brought in federal court

under the ADA.” Id. at 193. It is unclear how the panel

believes that “[its] holding here is entirely consonant with

Watts,” Op. 17 n.2, while also acknowledging Watts’s

holding that “the motivating purpose of § 301 preemption

simply does not apply” when a federal statutory claim is

brought in federal court, Op. 16.

The panel claims that “at least two circuits have held that

the LMRA precludes FLSA [Fair Labor Standards Act]

claims,” Op. at 18 n.3, citing Martin v. Lake County Sewer

Co., Inc., 269 F.3d 673 (6th Cir. 2001), and the case it relied

on, Vadino v. A. Valey Engineers, 903 F.2d 253 (3d Cir.

1990). But those cases applied the National Labor Relations

Act’s (“NLRA”) six-month statute of limitations to a

particular class of claims brought under the LMRA and
54 COLUMBIA EXPORT TERMINAL V. ILWU

FLSA. Although applying the NLRA’s statute of limitations

may lead to the dismissal of a late-filed FLSA claim, that

result is assuredly not § 301 preclusion.

The panel opinion claims that § 301 both preempts state

law claims and sub silentio precludes federal law claims. In

an attempt to justify this position, the panel conflates LMRA

and RLA preemption. Because there is no basis for

conflating preemption under the LMRA and RLA, or for

extending that preemption to preclude federal law claims, the

panel opinion needlessly creates a circuit split.

II.

The panel creates a presumption of arbitrability contrary

to Supreme Court precedent and, in doing so, rewrites the

CBA to require arbitration of RICO claims—despite

conceding that “[r]esolution of the RICO claims will . . .

require interpretation of the CBA to determine how it applies,

if it does, to an issue which its express terms do not appear to

discuss.” Op. 21 (emphasis added). But Granite Rock held

that the presumption applies “only where a validly formed

and enforceable arbitration agreement is ambiguous about

whether it covers the dispute at hand.” 561 U.S. at 301

(emphasis added). As I discuss below, the CBA here is not

ambiguous—its arbitration provision does not cover CET’s

RICO claims. Thus, the presumption does not apply.

The panel suggests that the presumption in favor of

arbitration applies whenever the parties have agreed to

arbitrate some matters under a CBA and dispute only whether

the CBA covers the claims alleged. Op. 26. But Granite

Rock specifically rejected such an argument. “Although

[United Steelworkers of America v. Warrior & Gulf
COLUMBIA EXPORT TERMINAL V. ILWU 55

Navigation Co., 363 U.S. 574 (1960)] contains language that

might in isolation be misconstrued as establishing a

presumption that labor disputes are arbitrable whenever they

are not expressly excluded from an arbitration clause . . . the

opinion elsewhere emphasizes that even in LMRA cases,

‘courts’ must construe arbitration clauses because ‘a party

cannot be required to submit to arbitration any dispute which

he has not agreed so to submit.’” Granite Rock, 561 U.S. at

301 n.8. 

Perhaps recognizing the difficulty of applying the

presumption to the CBA at issue, the panel attempts to

rewrite it. Under the CBA here, “grievances” must be

arbitrated. The CBA defines a grievance as any dispute about

the “interpretation, application, or violation” of the CBA and

the panel claims that interpretation and application of the

CBA are involved here. Op. 20–27. But CET’s dispute with

the defendants concerns the alleged submission of fraudulent

timesheets, and proof of such fraud does not require any

interpretation or application of the CBA. That is especially

so because CET’s complaint alleges that some employees did

“not show[] up at all and yet those who did show up

submit[ted] time sheets indicating that the absent employee

worked a full shift.” 

The panel points to various provisions of the CBA that

require an employee who is sent home early to be paid for a

half or full shift, as well as provisions that require paid meal

periods, paid holidays, and paid vacation time. Op. 20–22. 

These hypothetical defenses may explain why employees

may receive pay for time they do not work, but these

hypothetical defenses do not authorize an employee to submit

a timesheet on behalf of an absent employee. Nor do the

provisions of the CBA explain why an employee might
56 COLUMBIA EXPORT TERMINAL V. ILWU

submit a timesheet claiming hours that were not actually

worked—especially if that employee did not show up to

work.

The panel states that an issue may be “whether employees

can claim all of their compensable hours in their weekly

timesheets, or whether they must simply list time actually

worked.” Op. 21. But, in the panel’s own words, the CBA’s

“express terms do not appear to discuss” this issue, id., thus

admitting that CET’s RICO claims likely depend on an issue

that the CBA does not discuss. This is not merely a dispute

over the hours that an employee worked and logged on a

timesheet, but an allegation of a $5.3 million fraudulent

scheme executed by approximately 150 employees over four

years. As Judge Ikuta’s dissent states, “[p]roving the

elements of mail and wire fraud here requires only a factual

inquiry into whether employees claimed they were working

when they were not physically on site.” Dissent, 40. That

inquiry does not require interpretation of the CBA. The panel

errs both in applying a presumption in favor of arbitration and

in finding that the CBA requires arbitration of CET’s RICO

claims.

III.

The panel’s creation of a presumption in favor of

arbitration and an agreement to arbitrate where none exists is

not only legally erroneous, but also practically harmful. First,

as plaintiff points out, the panel opinion “creates a new

standard under which statutory claims are subject to

arbitration unless a CBA expressly excludes statutory claims

from the CBA’s arbitration procedures.” PFREB 3. The

notion that any claim that is not expressly excluded is

arbitrable largely defeats the point of negotiating a CBA; the
COLUMBIA EXPORT TERMINAL V. ILWU 57

scope of arbitration would become comprehensive no matter

what the CBA says, unless it explicitly excludes from

arbitration a laundry list of claims. And typical CBAs (those

without a laundry list of exclusions) will prove no less

troublesome in litigation, forcing courts to deduce parties’

arbitration intent from what they didn’t say, rather than read

the written agreement to determine what they specifically

agreed to arbitrate. The panel’s opinion will lead to a mass

of arbitrations never contemplated by a CBA.

Second, there would be no objectively discernible rule to

decide which federal statutory claims must be sent to

arbitration and which can proceed in court. The panel argues

that CET tried to circumvent arbitration by presenting

“claims which are, in substance, labor disputes” as federal

statutory claims. Op. 17. But the panel fails to explain how

“Individual Defendants not showing up at all and yet those

who did show up submitting time sheets indicating that the

absent employee worked a full shift,” is a contractual claim

that was “artful[ly] plead[ed]” as a RICO claim. Op. 17. 

CET’s claim describes precisely the kind of activity that

RICO prohibits: “It shall be unlawful for any person

employed by . . . any enterprise engaged in, or the activities

of which affect, interstate or foreign commerce, to conduct or

participate . . . in the conduct of such enterprise’s affairs

through a pattern of racketeering activity.” 18 U.S.C.

§ 1962(c). If fraud of this nature must be sent to arbitration

in the panel’s view, a CBA’s arbitrability scope would be

almost limitless, as almost any claim would relate to the
58 COLUMBIA EXPORT TERMINAL V. ILWU

CBA. If there is any limiting principle as to which claim

must be arbitrated, I don’t discern it.5

IV.

Section 301 of the LMRA is a far-reaching provision that

affects every CBA in “an industry affecting commerce.” 

29 U.S.C. § 185(a). Until now, we have consistently applied

§ 301 preemption to further the statute’s purpose of

promoting uniform interpretations of CBA provisions. 

Today, the panel wrongly strips federal courts of jurisdiction

to hear federal claims under the guise of “preclusion.” The

panel’s error is magnified by the lack of a limiting principle

that explains which claims must be arbitrated and which can

proceed to litigation, and by the panel’s misconception of

how to determine when a CBA mandates arbitration. The

actual standard requires a court to submit to arbitration only

disputes that the parties have specifically agreed to submit.

See Granite Rock, 561 U.S. at 302. Because of the panel

opinion, the standard in our Circuit will require us to submit

to arbitration any claims that were not expressly excluded,

even if there was no agreement to arbitrate such claims. This

erroneous change will harm both labor and management. 

For all these reasons, I respectfully dissent from our

decision not to rehear this case en banc.

5 This case involved alleged mail and wire fraud. But crimes such as

arson, bribery, extortion, theft, embezzlement, obstruction of justice, and

witness tampering can also be predicate acts under 18 U.S.C. § 1961(1). 

It takes little imagination to foresee how each of these predicate criminal

acts by management or labor could be related to a CBA. It also takes little

imagination to see how a vast number of other federal statutory claims

brought by labor or management could also be related to a CBA.