Amicus Curiae Brief — Southwest Airlines Co., Petitioner v. Latrice Saxon

No. 21-309

In The

Supreme Court of the United States

Southwest Airlines Co.,

Petitioner,

v.

Latrice Saxon,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF OF THE AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

Harold C. Becker

James B. Coppess

Counsel of Record

815 Black Lives Matter Plaza, N.W.

Washington, D.C. 20006

(202) 637-5337

jcoppess@aflcio.org

Mosaic - (301) 927-3800 - Cheverly, MD

49261_Ltrhd.indd

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6/11/08

12:44:0

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Corporate Disclosure Statement

The AFL-CIO is not a corporation and thus does not

have a parent corporation or issue any stock.

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TABLE OF CONTENTS

Page

Table of Authorities.............................................

v

Interest of Amicus Curiae....................................

1

Statement.............................................................

1

Summary of Argument........................................

2

Argument..............................................................

3

I. Persons Employed by Rail Carriers to

Load and Unload Cargo from Trains Are

“Railroad Employees”.................................

3

II. Persons Employed by Air Carriers to

Load and Unload Cargo from Planes Are

“Transportation Employees”......................

6

III. Persons Employed by Air Carriers to

Supervise and Assist Cargo Handlers

Are “Transportation Employees”...............

8

Conclusion............................................................

10

v

TABLE OF AUTHORITIES

Page

Cases

Atlanta Terminal Co.,

1 NMB 8 (1936)................................................

5, 9

China Airlines, Ltd.,

6 NMB 434 (1978)............................................ 9, 10

Circuit City Stores, Inc. v. Adams,

532 U.S. 105 (2001).............................. 3, 4, 6, 8, 10

Eastus v. ISS Facility Services, Inc.,

960 F.3d 207 (5th Cir. 2020)............................

2, 8

National Airlines, Inc.,

1 NMB 423 (1947)............................................

8

Norfolk & Western Railway Co.,

1 NMB 68 (1936)..............................................

5, 6

Northwest Airlines, Inc.,

2 NMB 27 (1949)..............................................

9

Union Pacific Railroad Co. v. Brotherhood of

Locomotive Engineers,

558 U.S. 67 (2009)............................................

1, 6

Statutes and Regulations

9 U.S.C. § 1........................................................... 3, 10

29 U.S.C. § 159.....................................................

5

45 U.S.C.

§ 151................................................................

4, 9

§ 152................................................................

5

vi

TABLE OF AUTHORITIES—Continued



Page

§ 153................................................................ 5, 7

§ 181................................................................

7

§ 182................................................................

7

§ 184................................................................

7

§ 185................................................................

7

49 CFR § 11245....................................................

4, 9

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BRIEF OF THE AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The American Federation of Labor and Congress of

Industrial Organizations (AFL-CIO) is a federation of

57 national and international labor organizations

with a total membership of over 12.5 million working

men and women.1 Affiliates of the AFL-CIO represent

transportation workers in collective bargaining and in

arbitrating grievances arising under the resulting collective bargaining agreements. The AFL-CIO frequently participates in cases before this Court concerning arbitration in the rail and air industries

covered by the Railway Labor Act. See, e.g., Union

Pacific Railroad Co. v. Brotherhood of Locomotive Engineers, 558 U.S. 67, 70 n. * (2009).

STATEMENT

Latrice Saxon is employed by Southwest Airlines at

Chicago Midway International Airport in the job classification of “ramp supervisor.” Pet. App. 2a. In that

position, “Saxon supervises, trains, and assists a team

of ramp agents—Southwest employees who physically

load and unload planes with passenger and commercial cargo.” Pet. App. 3a. See id. at 23a-25a (describing Saxon’s duties in detail).

Counsel for the Petitioner and counsel for the Respondent

have each consented to the filing of this amicus brief. No counsel

for a party authored this brief in whole or in part, and no person

or entity, other than the amicus curiae, made a monetary contribution to the preparation or submission of this brief.

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Saxon sued Southwest under the Fair Labor Standards Act, and Southwest moved to dismiss on the

grounds that Saxon had agreed to arbitrate such disputes. Pet. App. 3a. The district court granted Southwest’s motion. Pet. App. 42a.

The Seventh Circuit reversed the district court’s

judgment on the grounds that Saxon “is a transportation worker whose contract of employment is exempt from the Federal Arbitration Act.” Pet. App.

21a. In this regard, the Seventh Circuit explained

that “airplane cargo loaders are a class of workers

engaged in commerce and Saxon is a member of that

class.” Ibid.

The Seventh Circuit’s determination regarding

Saxon’s status is contrary to the Fifth Circuit’s conclusion that, categorically, “workers who load or unload goods that others transport in interstate commerce are not transportation workers.” Eastus v.

ISS Facility Services, Inc., 960 F.3d 207, 211 (2020).

This Court granted a writ of certiorari to resolve this

conflict.

SUMMARY OF ARGUMENT

Airline employees who load and unload cargo from

airplanes and their low-level supervisors are covered by the Railway Labor Act. These airline employees perform tasks that are nearly identical to

those long performed by railroad employees who are

also covered by the Railway Labor Act. The “contracts of employment” of “railroad employees” who

perform that freight handling work are expressly exempt from the Federal Arbitration Act. The airline

employees performing that work are transportation

workers whose contracts of employment are likewise

exempt from the FAA.

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ARGUMENT

Section 1 of the Federal Arbitration Act states that

“nothing herein contained shall apply to contracts of

employment of seamen, railroad employees, or any

other class of workers engaged in foreign or interstate

commerce.” 9 U.S.C. § 1. By this Court’s authoritative construction, “Section 1 exempts from the FAA

only contracts of employment of transportation workers.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105,

119 (2001). In so construing the FAA exemption, the

Court held that the scope of the excluded class of

“transportation workers” is “controlled and defined by

reference to the enumerated categories of workers

which are recited [in FAA § 1],” namely “ ‘seamen’ and

‘railroad employees.’ ” Id. at 115.

By this metric, there can be no doubt that “airplane cargo loaders are a class of workers engaged

in commerce” in the sense of being “transportation

worker[s] whose contract[s] of employment [are] exempt from the Federal Arbitration Act.” Pet. App.

21a. Persons employed by rail carriers to load and

unload cargo transported by passenger trains are

unquestionably “railroad employees” within the

meaning of FAA § 1. Persons employed by air carriers to load and unload cargo transported by passenger airplanes are just as much “transportation workers” as the “railroad employees” performing the

identical task.

I. Persons Employed by Rail Carriers to Load

and Unload Cargo from Trains Are “Railroad

Employees.”

This Court has explained the FAA exemption for

“contracts of employment of . . . railroad employees,” 9

U.S.C. § 1, as follows:

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“When the FAA was adopted, . . . grievance procedures existed for railroad employees under federal

law, see Transportation Act of 1920, §§ 300-316, 44

Stat. 456, and the passage of a more comprehensive

statute providing for the mediation and arbitration

of railroad labor disputes was imminent, see Railway Labor Act of 1926, 44 Stat. 577, 46 U.S.C. § 651

(repealed). It is reasonable to assume that Congress excluded . . . ‘railroad employees’ from the

FAA for the simple reason that it did not wish to

unsettle established or developing statutory dispute resolution schemes covering specific workers.”

Circuit City, 532 U.S. at 121.

The Railway Labor Act states that “the term ‘employee’ as used herein includes every person in the

service of a [rail] carrier (subject to its continuing

authority to supervise and direct the manner of rendition of his service) who performs any work defined

as that of an employee or subordinate official in the

orders of the Surface Transportation Board.” 45

U.S.C. § 151 Fifth.2 The Surface Transportation

Board “rules governing the classification of railroad

employees” repeat the RLA definition of “employees.” 49 CFR §§ 1245.1 & 1245.3. The STB regulations contain a detailed list of those employees’ “job

titles.” 49 CFR § 1245.5 The jobs of “railroad employees” described therein include handling “freight”

and “baggage,” id. (nos. 503 and 507), as well as “supervising” railroad employees who perform those

tasks, id. (no. 506).

This definition of “employee” appeared in the Railway Labor

Act as enacted in 1926, except at the time the Interstate Commerce Commission performed the function of defining the job

classifications of railroad employees and subordinate officials.

44 Stat. 577.

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Unsurprisingly, workers employed by railroads to

load and unload passenger train cargo were treated as

railroad employees well before either the Federal Arbitration Act or the Railway Labor Act became law. In

an early decision, the National Mediation Board observed that “[t]he long-established practice on railroads throughout the country is to recognize the clerical, station, and freight and storehouse forces as one

craft or class for representation and collective bargaining.” Atlanta Terminal Co., 1 NMB 8, 11 (1936).3

This craft or class specifically included “employees in

the baggage department [who] load the baggage on to

the trains.” Id. at 10.

This grouping of railroad employees for purposes of

collective bargaining dates back at least to “the period

of Government operation of the railroads” when “the

Director General entered into a national agreement

with the Brotherhood effective January 1, 1920, establishing rules governing hours of service and working

conditions of the[se] employees.” Norfolk & Western

Railway Co., 1 NMB 68, 69 (1936). “[I]ncluded within

this craft or class [we]re freight handlers,” id. at 72, as

reflected in the name of its union representative—

“Brotherhood of Railway and Steamship Clerks, Freight

Handlers, Express and Station Employes,” id. at 69.

In 1934, the Railway Labor Act was amended to

provide that “disputes of ‘clerical employees, freight

handlers, express, station, and store employees’

shall be heard by the Third Division of [the National

Railroad Adjustment] Board.” Norfolk & Western

Railway, 1 NMB at 76. See 45 U.S.C. § 153 First (h).

“The work performed by [this craft or class]” includA “craft or class” under the RLA is equivalent to a “bargaining unit” under the National Labor Relations Act. Compare 29

U.S.C. § 159(a) with 45 U.S.C. § 152 Fourth and Ninth.

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ed “tasks, such as trucking freight to and from cars,

stowing freight in cars, [and] handling baggage.” Id.

at 73,

In short, when “Congress provided a framework for

the settlement and voluntary arbitration” of railway

labor disputes, Union Pacific R. Co., 558 U.S. at 72,

the “developing statutory dispute resolution scheme,”

Circuit City, 532 U.S. at 121, expressly covered railroad employees who performed the tasks of loading

and unloading cargo.

II. Persons Employed by Air Carriers to Load

and Unload Cargo from Planes Are

“Transportation Employees.”

This Court has held that FAA § 1’s “residual exclusion of ‘any other class of workers engaged in foreign

or interstate commerce’ ” is “explain[ed by] the linkage

to the two specific, enumerated types of workers identified in the preceding portion of the sentence.” Circuit City, 532 U.S. at 121. In this regard, the Court

observed that “[i]t would be rational for Congress to

ensure that workers in general would be covered by

the provisions of the FAA, while reserving for itself

more specific legislation for those engaged in transportation.” Ibid. To support this observation, the

Court noted that “such legislation was soon to follow,

with the amendment of the Railway Labor Act in 1936

to include air carriers and their employees, see 49

Stat. 1189, 45 U.S.C. §§ 181-188.” Ibid.

The 1936 amendments added a subchapter II to the

Railway Labor Act covering “Carriers by Air.” That

subchapter provided that “[a]ll of the provisions of

subchapter I except section 153 of this title are extended to every common carrier by air engaged in interstate or foreign commerce . . . and every . . . person

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who performs any work as an employee or subordinate official of such carrier or carriers, subject to its or

their continuing authority to supervise and direct the

manner of rendition of his service.” 45 U.S.C. § 181.

It further provided that “[t]he duties, requirements,

penalties, benefits, and privileges prescribed and established by the provisions of subchapter I of this

chapter except section 153 of this title shall apply to

said carriers by air and their employees in the same

manner and to the same extent as though such carriers and their employees were specifically included

within the definition of ‘carrier’ and ‘employee’ respectively, in section 151 of this title.” 45 U.S.C. § 182.

Subchapter II mandated the creation of “[s]ystem,

group, or regional boards of adjustment” for the resolution of “disputes between an employee or group of

employees and a carrier or carriers by air growing out

of grievances, or out of the interpretation or application of agreements concerning rates of pay, rules, or

working conditions.” 45 U.S.C. § 184. These airline

boards of adjustment were assigned the same jurisdiction as that “lawfully exercised by system, group, or

carrier boards of adjustment” on rail carriers pursuant to section 153. 45 U.S.C. § 184. See 45 U.S.C.

§ 153 Second. The 1936 amendments also empowered

the National Mediation Board to require that “carriers by air and such labor organizations of their employees, national in scope” create a “National Air

Transport Adjustment Board,” similar in composition

and function to the National Railroad Adjustment

Board. 45 U.S.C. § 185.

In sum, the 1936 RLA amendments draw a direct

identity between rail carriers and their employees, on

the one hand, and air carriers and their employees, on

the other. The only difference is that the 1936 amend-

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ments did not immediately establish a national board

of adjustment to resolve disputes on airlines.

Rail and air carriers were placed under the same

“statutory dispute resolution scheme[],” Circuit City,

532 U.S. at 121, because “both are organized operationally to serve the public in the transportation of

passengers, baggage, mail, express, and freight.” National Airlines, Inc., 1 NMB 423, 438 (1947). Given

their common mission, “it is not surprising to find

marked similarity in the jobs in the two branches.”

Ibid. The similarity of most immediate note is that

“[w]hereas on airlines there are cargo handlers or

fleet service agents their counterparts can be found

on the railroads as baggage agents, callers, loaders,

and truckers.” Ibid.

The 1936 amendments to the Railway Labor Act

clearly establish that Congress considered airline

“cargo handlers” to be just as much “transportation

workers” as the “railroad employees” who worked on

“the railroads as baggage agents [and] loaders.”

Against that background, the Fifth Circuit could not

have been more wrong in concluding that “workers

who load or unload goods that others transport in interstate commerce are not transportation workers,”

Eastus, 960 F.3d at 211, within the meaning of the

FAA exemption.

III. Persons Employed by Air Carriers to

Supervise and Assist Cargo Handlers Are

“Transportation Employees.”

The fact that Saxon “supervises, trains, and assists

a team of ramp agents,” Pet. App. 3a. does not make

her any less a “transportation employee” than the

ramp agents themselves.

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In the first place, Saxon “regularly fills in for Ramp

Agents at least three out of the five days each week,

. . . perform[ing] the Ramp Agents’ duties of loading

and unloading the goods and cargo from Southwest

planes,” handling both “passengers’ personal luggage”

and “other freight.” Pet. App. 24a-25a (cleaned up).

In recognition of this aspect of the job, “[t]he Ramp

Supervisor position . . . requires that supervisors be

able to lift and move items of 70 pounds and/or more

on a regular basis and repetitively lift weights of 40 to

50 pounds on raised surfaces.” Pet. App. 23a. In short,

Saxon “physically load[s] and unload[s] planes with

passenger and commercial cargo,” Pet. App. 3a, in the

same manner and almost to the same extent as the

ramp agents themselves.

That Saxon is not covered by the ramp agents’ collective bargaining agreement makes no difference to

her status as a “transportation worker.” The Railway

Labor Act classifies employees in the job held by Saxon as “subordinate official[s]” included within the

statutory definition of “employee.” 45 U.S.C. § 151

Fifth. Employees whose “duties and responsibilities

. . . do not extend beyond the immediate supervision of

employees who perform manual work” have long been

treated as “subordinate officials” equally entitled to

bargain collectively as the employees they supervise.

Northwest Airlines, Inc., 2 NMB 27, 39 (1949). See id.

at 35-37 (recounting the history of collective bargaining by subordinate officials on railroads). Reflecting

this history, the Surface Transportation Board includes such supervisors in its list of “railroad employees.” 49 CFR §§ 1245.1 & 1245.5 (no. 506). Indeed,

the NMB usually includes subordinate officials in the

same craft or class as the employees they supervise.

See, e.g., China Airlines, Ltd., 6 NMB 434, 438, 440

(1978); Atlanta Terminal, 1 NMB at 11.

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“[E]mployee representatives and carriers not wishing to utilize the Board’s services under section 2,

Ninth, are at liberty to enter into recognition agreements covering any collective bargaining grouping

which they may mutually determine is appropriate.”

China Airlines, 6 NMB at 439. That Southwest and

the union representing the ramp agents have chosen

to exclude ramp supervisors from the collective bargaining agreement does not make that “class of workers,” 9 U.S.C. § 1, any less “transportation workers,”

Circuit City, 532 U.S. at 119, than the manual laborers they supervise and assist.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

Harold C. Becker

James B. Coppess

Counsel of Record

815 Black Lives Matter Plaza, N.W.

Washington, D.C. 20006

(202) 637-5337

jcoppess@aflcio.org