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

Supreme Court briefMar 3, 2022

Ask Donna

What actually matters in this document.

Text

No. 21-309

In the Supreme Court of the United States

______________

SOUTHWEST AIRLINES CO.,

Petitioner,

LATRICE SAXON,

______________

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

______________

BRIEF OF ILLINOIS, CALIFORNIA, COLORADO,

CONNECTICUT, DELAWARE, THE DISTRICT OF

COLUMBIA, MAINE, MARYLAND, MASSACHUSETTS, MICHIGAN, MINNESOTA, NEW JERSEY,

NEW YORK, OREGON, PENNSYLVANIA, RHODE

ISLAND, VERMONT, AND WASHINGTON AS AMICI

CURIAE IN SUPPORT OF RESPONDENT

____________

SARAH A. HUNGER

Deputy Solicitor General

LYDIA COLUNGA-MERCHANT

Deputy Chief,

Workplace Rights Bureau

R. HENRY WEAVER

Assistant Attorney General

*Counsel of Record

KWAME RAOUL

Illinois Attorney General

JANE ELINOR NOTZ*

Solicitor General

100 West Randolph Street

Chicago, Illinois 60601

(312) 814-5376

Jane.Notz@ilag.gov

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................ii

INTERESTS OF AMICI CURIAE .............................. 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................ 4

I. Congress Exempted Transportation Workers, Including Workers Who Loaded And Unloaded Cargo,

From The FAA In Response To The Widespread

Economic And Societal Disruption Caused By Labor Conflicts In The Transportation Industries..... 4

A. Labor conflicts in the transportation industries

during the late nineteenth and early twentieth

centuries caused substantial harm to the

States, their residents, and their economies ... 5

B. Congress responded by creating systems of public dispute resolution that covered workers who

load and unload cargo, like respondent ......... 12

II. States Have An Interest In Maintaining Transparent Dispute Resolution Procedures For Transportation Workers, Including Workers Like Respondent Who Load And Unload Cargo ........................ 17

A. Unlike arbitration proceedings under the FAA,

the processes available to exempted transportation workers are transparent ......................... 18

B. States are better able to protect their economies

and exercise their investigatory and enforcement powers when transportation-industry disputes are resolved transparently ................... 25

CONCLUSION........................................................... 30

TABLE OF AUTHORITIES

Cases:

Page(s)

Am. Fed’n of R.R. Workers v. N.Y. Cent. R.R. Co.,

Decision No. 1220, 3 R.L.B. 687 (1922) ............... 13

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) ........................................ 18, 19

Bhd. of R.R. Trainmen v. Jacksonville Terminal Co.,

394 U.S. 369 (1969) ........................................ 22, 25

Bhd. of Ry. & S.S. Clerks v. N.Y. Cent. R.R. Co.,

Decision No. 1209, 3 R.L.B. 665 (1922) ............... 13

Birmingham Tr. & Sav. Co v. Atlanta, B & A R Co.,

271 F. 731 (N.D. Ga. 1921) ................................. 13

Brown v. Advantage Eng’g, Inc.,

960 F.2d 1013 (11th Cir. 1992) ............................ 21

Circuit City Stores, Inc. v. Adams,

532 U.S. 105 (2001) ........................................ 15, 17

Consol. Rail Corp. v. Ry. Lab. Executives’ Ass’n,

491 U.S. 299 (1989) .............................................. 24

Detroit & T. S. L. R. Co. v. United Transp. Union,

396 U.S. 142 (1969) .............................................. 22

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) .......................................... 19

Hawaiian Airlines, Inc. v. Norris,

512 U.S. 246 (1994) ........................................ 21, 28

IAM v. Cent. Airlines, Inc.,

372 U.S. 682 (1963) .............................................. 24

iii

In re Regulations Concerning Class of Employees and

Subordinate Officials To Be Included Within

Term “Employee” Under the Railway Labor Act,

Ex Parte No. 72 (Sub-No. 1),

136 I.C.C. 321 (1928) ............................................ 14

In re Regulations Concerning Class of Employees and

Subordinate Officials To Be Included Within

Term “Employee” Under the Railway Labor Act,

Ex Parte No. 72 (Sub-No. 1),

229 I.C.C. 410 (1938) ............................................ 14

Int’l Ass’n of Machinists, AFL-CIO v. Cent. Airlines,

Inc., 372 U.S. 682 (1963) ...................................... 24

Int’l Ass’n of Machinists v. Street,

367 U.S. 740 (1961) .............................................. 15

McDermott Int’l, Inc. v. Wilander,

498 U.S. 337 (1991) .............................................. 16

Nederlandsch Amerikaansche Stoomvaart

Maatschappij v. Stevedores’ & Longshoremen’s

Benev. Soc., 265 F. 397 (E.D. La. 1920) ......... 16, 17

Slocum v. Delaware, L. & W.R. Co.,

339 U.S. 239 (1950) .............................................. 22

Union Oil Co. of California v. Leavell,

220 F.3d 562 (7th Cir. 2000) ................................ 21

West Coast Hotel Co. v. Parrish,

300 U.S. 379 (1937) ............................................. 26

Federal Statutes and Congressional Materials:

9 U.S.C. § 1 ......................................................... passim

45 U.S.C. § 151 ........................................................... 21

45 U.S.C. § 154 ........................................................... 22

45 U.S.C. § 155 ........................................................... 22

45 U.S.C. § 181 ........................................................... 21

Act of Apr. 10, 1936, ch. 166, § 201 ........................... 15

Erdman Act of 1898, ch. 370, § 1 .............................. 12

H.R. 13522, 67th Cong. (1922) ................................. 11

H.R. 7358, 68th Cong. (1924) ................................... 15

H.R. Rep. No. 49-4174 (1887) ...................................... 8

Newlands Act of 1913, ch. 6, § 1.......................... 12, 13

Railway Labor Act of 1926, ch. 347 .......................... 14

Shipping Act of 1916, ch. 451 .................................... 16

Shipping Commissioners Act of 1872, ch. 322 ... 15, 16

S. 2646, 68th Cong. (1924) ........................................ 15

S. 4214, 67th Cong. (1922) ........................................ 11

S. Rep. No. 69-606 (1926) .......................................... 15

Transportation Act of 1920, ch. 91 ............................ 13

State Statutes:

Ala. Code § 25-2-2(a) .................................................. 26

Ark. Code Ann § 11-2-108.......................................... 26

Cal. Lab. Code § 90.5(a)-(c)........................................ 26

Colo. Rev. Stat. 8-4-111(1)-(2) .................................. 26

Conn. Gen. Stat. § 31-3 .............................................. 26

19 Del. Code §§ 107, 1111 .......................................... 26

D.C. Code § 32-1306 ................................................... 26

Ga. Code Ann. § 34-2-3 .............................................. 26

15 ILCS 205/6.3(b) .................................................... 26

820 ILCS 115/11......................................................... 26

Kan. Stat. Ann. § 44-636 ........................................... 26

Ky. Rev. Stat. § 337.340 ............................................ 26

Mass. Gen. Laws ch. 149, § 3 .................................... 26

Md. Lab. Code Ann. § 3-103 ...................................... 26

26 Me. Rev. Stat. § 42 ................................................ 26

N.D. Cent. Code, § 34-06-02 ...................................... 26

N.H. Rev. Stat. Ann. 273:9, 275:51 ........................... 26

N.J. Stat. § 34:1A-1.12 ............................................... 26

N.M. Stat. Ann. § 50-4-8 ............................................ 26

Ohio Rev. Code Ann. § 4111.04(A)-(B) ...................... 26

Or. Rev. Stat. § 651.060(1) ........................................ 26

S.D. Codified Laws § 60-5-15 .................................... 26

Utah Code Ann. § 34-28-10(1) ................................... 26

Other Authorities:

12,000 Workers on Lake Boats Strike, N.Y. Times,

May 2, 1909........................................................... 11

Agreement By and Between Southwest Airlines Co.

and Transport Workers Union of America AFLCIO Local 555 Representing Ramp, Operations,

Provisioning and Freight Agents ......................... 24

Am. Arbitration Ass’n, Employment Arbitration

Rules and Mediation Procedures

(Nov. 1, 2009) .................................................. 19, 20

Oscar Ameringer, If You Don’t Weaken (1940) ......... 11

Eric Arnensen, Waterfront Workers of New

Orleans (1991) ..................................................... 10

Bureau of Labor Statistics and Inspection of Mo., The

Official History of the Great Strike of 1886 on the

Southwestern Railway System (1886)................... 8

Matthew Lawrence Daley, An Unequal Clash: The

Lake Seamen’s Union, the Lake Carriers’

Association, and the Great Lakes Strike of 1909,

N. Mariner, Spring 2018 ...................................... 11

Colin J. Davis, Power at Odds: The 1922 National

Railroad Shopmen’s Strike (1997) ................. 11, 12

Laurie Kratky Doré, Public Courts Versus Private

Justice: It’s Time to Let Some Sun Shine in on

Alternative Dispute Resolution, 81 Chi.-Kent L.

Rev. 463 (2006). .................................................... 20

Gerald G. Eggert, Railroad Labor Disputes:

The Beginnings of Federal Strike Policy

(1967)......................................................... 7, 8, 9, 10

A. R. Ellingwood, The Railway Labor Act of 1926,

36 J. Pol. Econ. 53 (1928) ..................................... 14

Philip S. Foner, The Great Labor Uprising of 1877

(1977)................................................................... 6, 7

Margaret Gadsby, Strike of the Railroad Shopmen,

15 Monthly Lab. Rev. 1171 (1922) ...................... 11

vii

Susan E. Hirsch, The Search for Unity Among

Railroad Workers: The Pullman Strike in

Perspective, in The Pullman Strike and the

Crisis of the 1890s (Richard Schneirov et al. eds.

1999) ....................................................................... 9

JAMS, Employment Arbitration Rules & Procedures,

Rule (June 1, 2021)............................................... 20

Almont Lindsey, The Pullman Strike (1942).............. 9

Marybeth Luczak, Next Stop for CBC Union,

Railroad Negotiations: Mediation

(Jan. 25, 2022) ...................................................... 23

David A. McCabe, Federal Intervention in Labor

Disputes Under the Erdman, Newlands and

Adamson Acts, 7 Proc. Acad. Pol. Sci. City

N.Y. 94 (1917) ...................................................... 13

National Mediation Board: Caseload Report .......... 24

National Mediation Board: Knowledge Store Award

Search ................................................................... 24

National Mediation Board, Mediation Overview &

FAQ ....................................................................... 23

National Mediation Board, Weekly Report January

31-February 4, 2022 ............................................. 23

Bruce Nelson, Divided We Stand: American Workers

and the Struggle for Black Equality (2001) ........ 10

Press Release, AG Healey Cites Transportation

Company Nearly $500,000 for Misclassification

and Overtime Violations (Sept. 24, 2018)............ 27

viii

Press Release, Attorney General James Recovers

$590,000 for Airline Workers Subjected to

Minimum Wage Violations (July 9, 2021) ............ 27

Judith Resnik, The Privatization of Process:

Requiem for and Celebration of the Federal Rules

of Civil Procedure at 75, 162 U. Pa. L. Rev. 1793

(2014)............................................................... 19, 21

Daniel Rosenberg,

New Orleans Dockworkers (1988) ........................ 11

Richard Schneirov, Chicago’s Great Upheaval of

1877, in The Great Strikes of 1877 (David O.

Stowell ed., 2008) ................................................... 6

Benjamin M. Squires, The National Adjustment

Commission, 29 J. Pol. Econ. 543 (1921)............. 16

David O. Stowell, Streets, Railroads, and the Great

Strike of 1877 (1999) .............................................. 6

Shelton Stromquist, A Generation of Boomers: The

Pattern of Railroad Labor Conflict in NineteenthCentury America (1987) ..................................... 6, 9

Talks on Wages Pressed to Avert L.I.R.R. Strike

(Dec. 7, 1979) ........................................................ 23

F. W. Taussig, The South-Western Strike of 1886, 1

Q.J. Econ. 184 (1887) ............................................. 8

Transport Workers Union Local 555, Arbitration

Rulings .................................................................. 24

U.S. Move Rebuffed In L.I.R.R. Dispute, N.Y. Times

(Nov. 8, 1979) ........................................................ 23

Katherine Van Wezel Stone, Labor Relations on the

Airlines: The Railway Labor Act in the Era of

Deregulation, 42 Stan. L. Rev. 1485 (1990) ........ 24

Richard White, Railroaded: The Transcontinentals

and the Making of Modern America (2011)........... 7

Frank N. Wilner, Railroads, Labor Trade ContractChange Demands (Nov. 4, 2019).......................... 23

A. P. Winston, The Significance of the Pullman

Strike, 9 J. Pol. Econ. 540 (1901) ........................... 9

INTERESTS OF AMICI CURIAE

The States of Illinois, California, Colorado, Connecticut, Delaware, Maine, Maryland, Massachusetts,

Michigan, Minnesota, New Jersey, New York, Oregon,

Pennsylvania, Rhode Island, Vermont, and Washington, and the District of Columbia (“amici States”) submit this brief in support of Respondent Latrice Saxon

to urge affirmance of the court of appeals, which correctly held that the exemption in Section 1 of the Federal Arbitration Act (“FAA”) for “seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,” 9 U.S.C. § 1, applies to

workers like respondent who load and unload interstate cargo.

Amici States have a substantial interest in the

proper scope of the FAA’s exemption for transportation workers for several reasons. To start, the transportation sector plays a critical role in state economies

and infrastructure, and a disruption in rail, airline, or

shipping operations has the potential to impact nearly

every aspect of commerce within a State. Accordingly,

amici States have an interest in ensuring that disputes involving transportation workers are resolved

in public and transparent proceedings that allow the

States to monitor such disputes and respond as necessary, as opposed to private and confidential arbitration proceedings designed by workers’ employers.

Additionally, amici States have a longstanding interest in protecting their residents from unlawful

working conditions, which includes ensuring that

workers can avail themselves of the appropriate forum when seeking a remedy for unlawful conduct.

Under petitioner’s unduly narrow reading of the Section 1 exemption, however, many transportation

workers in amici States would be required to raise

their claims in private arbitration proceedings that

lack the transparency of other fora.

Petitioner’s narrow reading of the exemption would

also undermine efforts by amici States to protect their

residents from unlawful working conditions by investigating and remedying violations of state labor laws.

When workers are subject to arbitration agreements—which typically include confidentiality provisions—it is more difficult for amici States to gather

information about the pervasiveness of unlawful practices. A decision requiring transportation workers

like respondent to arbitrate their claims would thus

affect the amount of information that is made publicly

available about the working conditions for these employees.

By contrast, the interpretation of the FAA exemption espoused by respondent and the lower court allows amici States to fulfill important interests and duties in a way that benefits their residents and economies. Accordingly, they urge the Court to affirm the

lower court’s decision holding that transportation

workers who load and unload interstate cargo are exempt from the FAA.

SUMMARY OF ARGUMENT

At issue in this case is whether the FAA requires

transportation workers like respondent, who load and

unload interstate cargo for an airline, to raise claims

against their employer in private arbitration proceedings or whether they fall within the scope of the FAA’s

exemption for “seamen, railroad employees, or any

other class of workers engaged in foreign or interstate

commerce.” 9 U.S.C. § 1. Amici States agree with respondent that such transportation workers fit well

within the Section 1 exemption because airline workers are analogous to “seamen” and “railroad employees” and, alternatively, because cargo loaders for airlines are “engaged in commerce.” Resp. Br. at 9-10.

Amici States write separately, however, to highlight

two aspects of this issue that are directly relevant to

their state experience and interests.

First, amici States explain how the historical context of the FAA’s passage in 1925, including the

States’ experience during that time, favors respondent’s interpretation. In particular, the late nineteenth

and early twentieth centuries were marked by labor

strife in the transportation industries that inflicted

significant economic harm on States and their residents. These conflicts involved not only operational

employees who worked on the vehicles themselves,

but also employees like longshoremen and shop workers who were responsible for, among other things,

loading cargo and performing maintenance on carriers

in the rail yards. In response to this strife and the

economic disruption it caused, Congress enacted a series of transportation-specific statutes to promote

peaceful resolution of these disputes in public fora.

Among other features, the statutes in place at the

time of the FAA’s passage applied to a broad swath of

transportation workers, including those who loaded

and unloaded cargo. Accordingly, and contrary to petitioner’s suggestion otherwise, Pet. Br. 46-48, this

historical context shows that when Congress ex-

empted transportation workers from the FAA, it intended that exemption to cover workers like respondent who load and unload interstate cargo.

Second, amici States have an interest in providing

stability in the transportation sector and in performing their investigatory and enforcement duties, which

are dependent in large part on efficient access to information and the ability to monitor workplace conditions. These interests are furthered by allowing

transportation workers to raise claims in public proceedings. When workers are subject to the FAA, they

must maintain confidentiality and present their

claims on an individualized basis in private proceedings. If exempted from the FAA, however, workers

may bring their claims in more transparent and public

fora. For some transportation workers, like respondent, that vehicle is a federal or state lawsuit. For others, such as transportation workers who hold the

same or similar positions but are subject to collective

bargaining agreements, the nonconfidential processes

of the Railway Labor Act (“RLA”) would govern.

For these reasons and those discussed below, amici

States agree with respondent that the lower court’s

decision should be affirmed.

ARGUMENT

Congress Exempted Transportation Workers, Including Workers Who Loaded And Unloaded Cargo, From The FAA In Response To

The Widespread Economic And Societal Disruption Caused By Labor Conflicts In The

Transportation Industries.

Labor strife in the transportation industries regularly froze interstate commerce and damaged state

economies in the late nineteenth and early twentieth

centuries. Relevant here, these conflicts involved a

wide range of employees, including those who were responsible for loading cargo and performing maintenance on carriers in the rail yards. Congress responded to these disputes with a series of legislative

acts that established new public fora for resolution of

disputes in the transportation industry. Although

some of the initial statutory schemes were limited in

scope, Congress soon expanded them to include transportation workers who did not actually transport

goods or people across state lines, such as those who

load and unload cargo—i.e., workers like respondent.

It was against this legislative and historical backdrop that Congress enacted the FAA but exempted

“seamen, railroad employees, or any other class of

workers engaged in foreign or interstate commerce”

from its terms. 9 U.S.C. § 1. Contrary to petitioner’s

contentions otherwise, Pet. Br. 46-48, this historical

context shows that Congress intended to include

workers like respondent in the Section 1 exemption.

And amici States have an interest in seeing that congressional intent enforced, given the extent to which

States suffer when there is disruption in the transportation industry.

A. Labor conflicts in the transportation industries during the late nineteenth and

early twentieth centuries caused substantial harm to the States, their residents, and

their economies.

The years before the FAA’s passage were a time of

extreme labor unrest, especially in the burgeoning

transportation industries.1 Transportation strikes

posed a serious threat to States’ economies because

they prevented other industries from bringing their

goods to market and because even a small number of

striking workers could disrupt commerce across an

entire region. The strikes during this era, moreover,

were not limited to operational employees who worked

on the carriers and often included workers who loaded

and unloaded cargo.

In the Great Railroad Strike of 1877, for example,

“the major part of the country’s transportation system

and thousands of industries dependent on it were

brought to a halt.”2 The strike started in West Virginia but quickly spread to Maryland, Pennsylvania,

New York, New Jersey, Ohio, Indiana, Kentucky, Missouri, and Iowa.3 Both operating employees—brakemen, firemen, and others who ran the trains—and

railroad shop workers—who built and maintained the

railway vehicles—walked off the job.4 In some cities,

the strike spread to other industries; in Chicago, for

instance, “lumbershovers,” who loaded and unloaded

timber from boats, and their supporters gathered in

great numbers to blockade the docks.5 Soon, not only

Shelton Stromquist, A Generation of Boomers: The Pattern of

Railroad Labor Conflict in Nineteenth-Century America 3 (1987).

Philip S. Foner, The Great Labor Uprising of 1877 10 (1977).

Id. at 189.

David O. Stowell, Streets, Railroads, and the Great Strike of

1877 73-74 (1999).

5 Richard Schneirov, Chicago’s Great Upheaval of 1877, in The

Great Strikes of 1877, at 76, 87, 90-92 (David O. Stowell ed.,

2008).

the railroads, but also “businesses that were dependent upon the railroads for their supplies—factories,

mills, coal mines, and oil refineries—were forced to

shut down.”6

The Great Railroad Strike immediately began to

strain States’ economies. New York was “cut off . . .

from its usual sources of grain and meat in the Midwest,” causing prices of meat there to rise by 25 to 50

percent within days.7 Shortages did not spare Midwestern cities, either. A St. Louis newspaper reported

that “[f]lour has gone up to an enormous price.”8 Shipments of corn to Chicago fell precipitously from 1,400

daily carloads to just 94, and Baltimore, New York,

Chicago, and Indianapolis reported coal shortages.9

In addition to this severe economic damage, the strike

led to general uprisings across the country, which resulted in more than 100 deaths.10

The Knights of Labor, a prominent labor federation,

launched another major strike in 1886 on Jay Gould’s

southwestern railroads, resulting in the “economic paralysis of an entire section of the country.”11 Workers

on the single rail bridge across the Mississippi River

Foner, supra note 2, at 189.

Gerald G. Eggert, Railroad Labor Disputes: The Beginnings of

Federal Strike Policy 11 (1967).

Ibid.

Id. at 12.

Foner, supra note 2, at 47, 63, 73, 90; Schneirov, supra note 5,

at 90-93.

Richard White, Railroaded: The Transcontinentals and the

Making of Modern America 338 (2011).

to St. Louis—including freight handlers, baggage

handlers, shop workers, and yard workers—went on

strike, shutting down most traffic into the city.12 Because St. Louis and points west depended on Illinois

for their coal supply, shortages quickly worsened,

which caused flour mills, brickworks, and other factories to close.13 In small towns, groceries, flour, and

fuel oil became scarce, and residents resorted to

wagon trains “to supply the most urgent needs.”14 As

the strike continued, Missouri reported that “[t]housands of tons are stopped in transit, and the people

are consequently suffering enormous inconvenience,

damage and loss,” and Kansas explained that “the

strike of a few railroad men cripples and stops the

business and industry of great masses of our people.”15

A congressional report estimated direct losses to the

railroads of about $2.8 million, while stating that

losses to the general public “were beyond computation.”16

This era of railroad unrest culminated in the 1894

Pullman Strike, “one of the most intense and bitterly

fought labor disputes in the country’s history.”17 As

F. W. Taussig, The South-Western Strike of 1886, 1 Q.J. Econ.

184, 195, 199 (1887); H.R. Rep. No. 49-4174, pt. 1, at xiii, 513

(1887).

Taussig, supra note 12, at 202-203.

Id. at 204.

Bureau of Labor Statistics and Inspection of Mo., The Official

History of the Great Strike of 1886 on the Southwestern Railway

System 58, 60 (1886).

H.R. Rep. No. 49-4174, pt. 1, at xxiii (1887).

Eggert, supra note 7, at 152.

with earlier disputes, the striking workers included

repair shopmen and yard workers, in addition to operational employees.18 The conflict began as a boycott

of the Pullman Palace Car Company, which had its

main factories in Chicago, and quickly escalated into

“a general strike of railroads in and around Chicago

and westward and southwestward to the Pacific

Coast.”19 At its peak, 16 percent of Illinois workers

were on strike.20 The strike also turned violent: strikers and their supporters liberally employed sabotage,

burning boxcars, derailing trains, and blowing up

bridges, and authorities responded with deadly

force.21

The economic fallout for States was severe. Virtually all traffic on railroads in the West and Midwest

was halted for two weeks.22 Because Chicago was “dependent on large daily shipments of fruit, vegetables,

milk, and meat,” an “acute shortage” of these staples

quickly set in.23 Eastern cities, though not the strike’s

location, suffered meat shortages because of the bottleneck in Chicago.24 As in the 1886 southwestern

Susan E. Hirsch, The Search for Unity Among Railroad Workers: The Pullman Strike in Perspective, in The Pullman Strike

and the Crisis of the 1890s, at 49-50 (Richard Schneirov et al.

eds. 1999).

Eggert, supra note 7, at 160.

Almont Lindsey, The Pullman Strike 12 (1942).

Id. at 207-209, 254, 258; A. P. Winston, The Significance of the

Pullman Strike, 9 J. Pol. Econ. 540, 541-542 (1901).

Stromquist, supra note 1, at 89.

Lindsey, supra note 20, at 209.

Eggert, supra note 7, at 13.

strike, small towns were hit hardest of all, with Faribault, Minnesota, West Superior, Wisconsin, and

Fargo, North Dakota facing actual famine.25 Waterborne transport provided no immediate relief, because

“longshoremen at Chicago and dockworkers at Duluth

struck in sympathy with the railwaymen.”26

While many of the most infamous labor conflicts occurred on the railways during this era, a number of

others involved port workers. Some of the earliest

strikes in United States history were on the waterfront, with longshoremen shutting down the port of

New York in 1825, 1828, and 1836.27 And in the early

1900s, the port of New Orleans, which served as an

important hub for ocean trade, especially in cotton,

suffered a series of riverfront strikes that “paralyzed

the flow of commerce.”28 Importantly, these strikes

were driven largely by longshoremen—port workers

who load and unload vessels but (like respondent) do

not themselves travel in commerce.

In October 1907, a general strike of 8000 longshoremen, teamsters, freight handlers, and “screwmen”—

workers who stuffed cotton bales into ships’ holds—

froze the New Orleans port.29 The strike unified all

the various occupations involved in loading and unloading goods at the port, including freight handlers

Ibid.

Id. at 18.

Bruce Nelson, Divided We Stand: American Workers and the

Struggle for Black Equality 17 (2001).

Eric Arnensen, Waterfront Workers of New Orleans 38, 160

(1991).

Id. at 162, 197.

on the rail lines.30 The results were devastating:

“Thousands of tons of bananas and citrus fruit were

dumped in the river,” thousands of workers unconnected with the strikes “were thrown out of work,” and

“[b]usiness of all kinds suffered tremendously.”31

Two years later, in 1909, there was a general strike

of seamen on the Great Lakes steamships. Twelve

thousand workers refused to sail, idling the ports of

Chicago, Buffalo, and Cleveland.32 Their employers

hired strikebreakers to mitigate the disruption, but

that decision had dire consequences. Piloted by inexperienced crews, ships collided and ran aground twice

as often as the previous year.33

Finally, there was the Shopmen’s Strike of 1922,

the same year that the FAA was first introduced in

Congress.34 As the strike progressed, locomotives

broke down and were not repaired, leading quickly to

nationwide shortages of coal, grain, and fruit.35 The

agricultural commissioner of Idaho estimated that his

State suffered $100 million in economic fallout by the

Daniel Rosenberg, New Orleans Dockworkers 122 (1988).

Oscar Ameringer, If You Don’t Weaken 201 (1940).

32 12,000 Workers on Lake Boats Strike, N.Y. Times, May 2, 1909,

at 2.

33 Matthew Lawrence Daley, An Unequal Clash: The Lake Seamen’s Union, the Lake Carriers’ Association, and the Great Lakes

Strike of 1909, N. Mariner, Spring 2018, at 119, 132.

S. 4214, 67th Cong. (1922); H.R. 13522, 67th Cong. (1922).

Colin J. Davis, Power at Odds: The 1922 National Railroad

Shopmen’s Strike 102-103, 129 (1997); Margaret Gadsby, Strike

of the Railroad Shopmen, 15 Monthly Lab. Rev. 1171, 1176

(1922).

strike’s end.36 This strike thus demonstrated how the

work stoppage of shopmen—who did not physically

transport goods or people across state lines—nonetheless caused great damage to state economies.

B. Congress responded by creating systems of

public dispute resolution that covered

workers who load and unload cargo, like

respondent.

Congress responded to this era of turmoil with a series of laws aimed at facilitating the peaceful reconciliation of grievances among transportation industry

employees. These laws for the first time established

public—or, at the very least, publicly regulated—dispute resolution systems that applied to a broad swath

of transportation workers, including those who load

and unload cargo, as explained below. Importantly, it

was against this backdrop that Congress enacted the

FAA and its exemption for “seamen, railroad employees, or any other class of workers engaged in foreign

or interstate commerce.” 9 U.S.C. § 1. That exemption should thus be read to preserve these separate

dispute resolution systems rather than erasing them

by placing transportation workers like respondent under the aegis of the FAA.

Congress’ earliest legislative efforts created the

general framework for railway-specific dispute resolution mechanisms. The scope of those statutes, however, was limited to employees defined as “all persons

actually engaged in any capacity in train operation or

train service of any description.” Erdman Act of 1898,

ch. 370, § 1, 30 Stat. 424, 424; Newlands Act of 1913,

Davis, supra note 35, at 163.

ch. 6, § 1, 38 Stat. 103, 104. A court construing this

language at the time held that its “common meaning

. . . include[d] only engineers, firemen, conductors,

switchmen, train hands, and porters” but not “telegraphers” or “station agents and clerks.” Birmingham

Tr. & Sav. Co v. Atlanta, B & A R Co., 271 F. 731, 742

(N.D. Ga. 1921).37

But this approach was short lived, as Congress soon

passed the Transportation Act of 1920, ch. 91, 41 Stat.

456, which established the dispute resolution procedures existing at the FAA’s passage. Through this legislation, Congress brought all railway disputes under

public jurisdiction before new—and public—entities,

namely, the Railroad Boards of Labor Adjustment and

the Railroad Labor Board. §§ 302-304, 41 Stat. at 469470. Unlike earlier laws, the Transportation Act expanded coverage to all “employees,” and to any “subordinate official,” explication of which was delegated

to the Interstate Commerce Commission (“ICC”),

§ 300(5), 41 Stat. at 469. Notably, the Railroad Labor

Board held on numerous occasions that baggage and

freight handlers were subject to the Transportation

Act. E.g., Am. Fed’n of R.R. Workers v. N.Y. Cent. R.R.

Co., Decision No. 1220, 3 R.L.B. 687, 688 (1922); Bhd.

of Ry. & S.S. Clerks v. N.Y. Cent. R.R. Co., Decision

No. 1209, 3 R.L.B. 665, 666 (1922); see also Resp. Br.

at 15-16.

See also David A. McCabe, Federal Intervention in Labor Disputes Under the Erdman, Newlands and Adamson Acts, 7 Proc.

Acad. Pol. Sci. City N.Y. 94, 95 (1917) (noting that the definition

included “only engineers, firemen, conductors, trainmen, switchmen and telegraphers,” but not “shopmen, car-workers and

freight handlers”).

In 1926, Congress enacted the Railway Labor Act,

which continues to govern transportation disputes in

the rail and airline industries today. Ch. 347, 44 Stat.

577 (codified as amended at 45 U.S.C. § 151 et seq.).

Like the Transportation Act, the RLA created a permanent public body for resolving disputes, called the

Board of Mediation. § 4, 44 Stat. at 579. Additionally,

the RLA retained the capacious definition of “employee” as “every person in the service of a carrier . . .

who performs any work defined as that of an employee

or subordinate official in the orders of the [ICC].” § 1,

Fifth, 44 Stat. at 577.

Indeed, the definition of employee in the RLA was

generally understood as equivalent to the Transportation Act’s broad definition.38 Relevant here, ICC decisions from this era interpreted the RLA broadly to

cover, among others, railroad employees involved in

baggage handling. E.g., In re Regulations Concerning

Class of Employees and Subordinate Officials To Be

Included Within Term “Employee” Under the Railway

Labor Act, Ex Parte No. 72 (Sub-No. 1), 229 I.C.C. 410,

417 (1938) (holding that “red cap” porters who carried

passengers’ baggage in railway stations were employees under the RLA); In re Regulations Concerning

Class of Employees and Subordinate Officials To Be

Included Within Term “Employee” Under the Railway

Labor Act, Ex Parte No. 72 (Sub-No. 1), 136 I.C.C. 321

(1928) (holding that “chief traffic officers,” who supervise freight logistics, are employees under the RLA).

And in 1936, when Congress expanded the RLA to

38 A. R. Ellingwood, The Railway Labor Act of 1926, 36 J. Pol.

Econ. 53, 64 (1928).

cover airlines and their employees and subordinate officials, it did not alter the definition of employee. Act

of Apr. 10, 1936, ch. 166, § 201, 49 Stat. 1189, 1189

(codified at 45 U.S.C. § 181).

Petitioner’s primary response to this history is that

the RLA is irrelevant because it was passed after the

FAA. Pet. Br. at 46. But that position ignores critical

context showing that by the time the FAA was enacted, the RLA’s passage was “imminent.” Circuit

City Stores, Inc. v. Adams, 532 U.S. 105, 121 (2001).

Additionally, the RLA had been contemplated for

years prior to its passage in 1926. Indeed, the Transportation Act had “lost the confidence of both the unions and many of the railroads” after the 1922 Shopmen’s Strike. Int’l Ass’n of Machinists v. Street, 367

U.S. 740, 756 n.12 (1961). President Coolidge called

for its replacement as early as December 1923, and

the bills that would become the RLA were introduced

in the House and Senate in February 1924, a year before the FAA was enacted.39 In other words, Congress

and the major stakeholders were drafting and negotiating the RLA in the midst of the FAA’s passage.

Congressional enactments in other transportation

industries during this time provide additional examples of how Congress sought to protect interstate commerce by facilitating publicly regulated mediation of

disputes for transportation workers, including workers like respondent. For instance, the Shipping Commissioners Act of 1872, ch. 322, 17 Stat. 262, required

that the shipping commissioner, a public official,

39 S. Rep. No. 69-606, at 2-3 (1926); H.R. 7358, 68th Cong. (1924);

S. 2646, 68th Cong. (1924).

“hear and decide any question whatsoever between a

master, consignee, agent, or owner, and any of his

crew, which both parties agree in writing to submit to

him.” § 25, 17 Stat. at 267. Just as the term “employee” was not limited to train operators under the

RLA, the term “any of his crew” was not limited to

those who navigated ships under the Shipping Commissioners Act. Instead, the Act used “crew” and “seaman” synonymously. See § 26, 17 Stat. at 267 (detailing arbitration procedures for disputes of “any seaman”); McDermott Int’l, Inc. v. Wilander, 498 U.S.

337, 348 (1991) (“‘Member of a crew’ and ‘seaman’ are

closely related terms.”). And the Act defined “seaman”

to include every person “employed or engaged to serve

in any capacity on board” a ship. § 65, 17 Stat. at 277.

Congress also established a system to resolve longshoremen’s disputes shortly before the FAA’s passage.

In 1916, Congress created the United States Shipping

Board to fortify America’s merchant marine. Shipping

Act of 1916, ch. 451, 39 Stat. 728. The Shipping

Board, in turn, established the National Adjustment

Commission in 1917 to adjudicate labor disputes “arising in loading and unloading of ships” and “railroad

freight-handling at water terminals.”40 And at least

one of the National Adjustment Commission’s rulings

was successfully enforced in federal court. Nederlandsch Amerikaansche Stoomvaart Maatschappij v. Stevedores’ & Longshoremen’s Benev. Soc., 265 F. 397

(E.D. La. 1920) (setting wages for dock workers).

40 Benjamin M. Squires, The National Adjustment Commission,

29 J. Pol. Econ. 543, 545-546 (1921).

It was against this backdrop that Congress enacted

the FAA in 1925—including that statute’s exemption

for “seamen, railroad employees, or any other class of

workers engaged in foreign or interstate commerce.”

9 U.S.C. § 1. By exempting transportation workers

from the FAA in this manner, Congress recognized

that it had already set up (and was in the process of

setting up) several dispute resolution mechanisms to

peacefully resolve conflicts between transportation

carriers and their employees—including workers like

respondent who load and unload cargo. The exemption should thus be read to leave those separate processes intact. Circuit City, 532 U.S. at 121 (Congress

exempted transportation workers to avoid “unsettl[ing] established or developing statutory dispute

resolution schemes covering specific workers”). Petitioner’s view of the exemption ignores this important

context and would unduly narrow the scope of workers

that the exemption covers.

II. States Have An Interest In Maintaining

Transparent Dispute Resolution Procedures

For Transportation Workers, Including

Workers Like Respondent Who Load And

Unload Cargo.

Congress’ decision to exempt a broad swath of

transportation workers from the FAA reflected its

judgment at the time of its enactment that disputes in

the transportation sector were not suitable for resolution by private parties and without any regulatory

oversight. This judgment still holds true today.

Whereas arbitration under the FAA typically occurs

in confidential, individualized proceedings, dispute

resolution proceedings for exempted transportation

workers are conducted in a more transparent and regulated manner. These regulatory constructs serve important state interests by allowing States to monitor

any disputes that may be developing within their borders and more efficiently perform their investigatory

and enforcement duties. Petitioner’s proposed interpretation of the Section 1 exemption, however, would

narrow the class of workers able to pursue remedies

through public and transparent processes and limit

the amount of critical information flowing to the

States.

A. Unlike arbitration proceedings under the

FAA, the processes available to exempted

transportation workers are transparent.

Determining whether a transportation worker is

exempted from the FAA has significant practical implications, including for States, given the differences

between the nature and purpose of private arbitration

proceedings, on the one hand, and the procedures governing public dispute resolution processes, on the

other. Specifically, the public processes allow States

to better monitor any burgeoning disputes that might

disrupt their economies and perform their investigative and enforcement duties. The confidential nature

of private arbitration proceedings, by contrast, does

not serve those interests.

As the Court has explained, “[t]he principal purpose of the FAA is to ensure that private arbitration

agreements are enforced according to their terms.”

AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344

(2011) (cleaned up). In other words, the FAA focuses

on honoring the intent of private parties, and not the

public implications of those agreements. To that end,

parties may agree “to arbitrate according to specific

rules,” id., including that “proceedings be kept confidential,” id. at 345, or that they proceed on an individualized, as opposed to collective, basis, Epic Sys. Corp.

v. Lewis, 138 S. Ct. 1612, 1621 (2018).

In fact, “the promise of confidentiality” has become

“a linchpin” of private arbitration’s appeal.41 The

leading arbitration associations not only highlight the

confidentiality of their services, but also structure

their governing rules to allow parties to elect for

nearly complete opacity in the proceedings. For instance, the American Arbitration Association’s employment arbitration rules—which Southwest has selected to govern its arbitration proceedings, e.g., Dist.

Ct. Doc. 53-1 at 12, 31—provide that the “arbitrator

shall maintain the confidentiality of the arbitration

and shall have the authority to make appropriate rulings to safeguard that confidentiality.”42 Although the

rules state that any award issued by the American Arbitration Association “shall be publicly available,”

there are significant limitations on the information

that is provided to the public, including that awards

are only made available for a fee, generally do not disclose the names of the parties and witnesses, and may

not include any written reasons supporting the

award.43 Arbitrations conducted pursuant to the

Judith Resnik, The Privatization of Process: Requiem for and

Celebration of the Federal Rules of Civil Procedure at 75, 162 U.

Pa. L. Rev. 1793, 1818 (2014).

Am. Arbitration Ass’n, Employment Arbitration Rules and

Mediation

Procedures,

Rule

(Nov.

2009),

https://bit.ly/3tqVOwP.

Id. at Rule 39.

JAMS Employment Arbitration Rules are even less

transparent, as those rules require arbitrators to

maintain the confidentiality of both the proceedings

and the award.44 Additionally, the arbitrator has authority to issue orders to protect the confidentiality of

sensitive information, sanction parties for violating

the rules, and exclude nonparties from hearings.45

In practice, then, “[a]rbitration is frequently conducted pursuant to confidentiality rules and agreements that can conceal the existence and substance of

a dispute, the identities of the parties, and the resolution of the controversy.”46 Indeed, under the arbitration agreement at issue in this case, which would apply to respondent if she were not exempted by section

1 of the FAA, “[a]ll aspects of the [arbitration] program, including the hearing and record . . . of proceedings are confidential and shall not be open to the public.” Dist. Ct. Doc. 53-1 at 16, 34.

By contrast, the public dispute resolution procedures for transportation workers exempted from the

FAA are considerably more transparent, and the resulting settlements, judgments, or awards are typically made public.

To start, many transportation workers, including

those, like respondent, who are not subject to a collective bargaining agreement, can present their claims

JAMS Employment Arbitration Rules & Procedures, Rule 26

(June 1, 2021), https://bit.ly/3pszlOL.

Id. at Rules 26, 29.

Laurie Kratky Doré, Public Courts Versus Private Justice: It’s

Time to Let Some Sun Shine in on Alternative Dispute Resolution,

81 Chi.-Kent L. Rev. 463, 466 (2006).

directly in federal court. E.g., Hawaiian Airlines, Inc.

v. Norris, 512 U.S. 246, 254-56 (1994). Unlike the

FAA, court proceedings are typically open to the public, and filings and decisions are available to all on a

public docket. E.g., Union Oil Co. of California v.

Leavell, 220 F.3d 562, 568 (7th Cir. 2000) (“People who

want secrecy should opt for arbitration. When they

call on the courts, they must accept the openness that

goes with subsidized dispute resolution by public (and

publicly accountable) officials.”). Any judgments entered are available for members of the public (and

state regulators) to view, as are transcripts of relevant

proceedings and the court’s reasoning underlying its

decision. When a case settles, the agreements remain

accessible “if filed in court.”47 And even if the agreement itself remains private, the docket and “court file

must remain accessible to the public.” Brown v. Advantage Eng’g, Inc., 960 F.2d 1013, 1016 (11th Cir.

1992).

Other workers, including rail and airline employees

subject to a collective bargaining agreement, pursue

certain of their claims not in federal court but through

the processes set up by the Railway Labor Act. E.g.,

45 U.S.C. § 151, Fifth; id. § 181; Hawaiian Airlines,

Inc., 512 U.S. at 254-256. These processes are relevant here because the Court’s decision in this case will

affect workers who are similarly situated to respondent (but who are subject to a collective bargaining

agreement) and thus subject to the RLA.

Resnik, supra note 41, at 1818.

The RLA proceedings, moreover, are consistent

with state interests because they occur largely in nonconfidential settings and because they are focused on

avoiding disruption to transportation operations. Indeed, in contrast with the FAA, which focuses on upholding agreements made between private parties,

the “heart” of the RLA is the duty of both “management and labor, to exert every reasonable effort” to

come to agreements and settle all disputes “in order to

avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between

the carrier and the employees thereof.” Bhd. of R.R.

Trainmen v. Jacksonville Terminal Co., 394 U.S. 369,

377-378 (1969) (cleaned up). This purpose—which focuses on the public need for functioning transportation industries—extends both to major disputes,

which “concern[ ] the making of collective agreements,” and minor disputes, which refer to “grievances arising under existing agreements.” Slocum v.

Delaware, L. & W.R. Co., 339 U.S. 239, 242 (1950).

For major disputes, the RLA “established rather

elaborate machinery for negotiation, mediation, voluntary arbitration, and conciliation,” Detroit & T. S.

L. R. Co. v. United Transp. Union, 396 U.S. 142, 148149 (1969), that is overseen by the National Mediation

Board, an independent agency consisting of three

members, 45 U.S.C. §§ 154, 155; Bhd. of R.R. Trainmen, 394 U.S. at 378. According to the National Mediation Board, “97 percent of all mediation cases in the

history of the [Board] have been successfully resolved

without interruptions to public service,” with a success rate of “nearly 99 percent” since 1980.48 These

processes, in addition to being governed by a public

body, generally take place in the public sphere, notwithstanding the private nature of the mediation discussions themselves.49 Indeed, the National Mediation Board docketed a number of new mediations earlier this year arising out of failed negotiations between

a coalition of rail unions and their employers.50 The

existence of these disputes, moreover, was not confidential; on the contrary, there were numerous status

reports provided publicly over the course of the twoyear negotiation period.51

So-called “minor disputes” are subject to different

systems of public dispute resolution. Railroad employees have their disputes heard by the National

Railroad Adjustment Board, whereas airline employees bring their grievance to carrier-specific adjustment boards. Consol. Rail Corp. v. Ry. Lab. Executives’ Ass’n, 491 U.S. 299, 304 n.4 (1989); Int’l Ass’n of

National Mediation Board, Mediation Overview & FAQ,

https://bit.ly/36WmNsN.

49 E.g., U.S. Move Rebuffed In L.I.R.R. Dispute, N.Y. Times (Nov.

8, 1979), https://nyti.ms/3tnxvjF (announcing that talks at the

National Mediation Board have failed); Talks on Wages Pressed

to Avert L.I.R.R. Strike (Dec. 7, 1979), https://nyti.ms/34a5HXo

(discussing last-minute negotiations).

National Mediation Board, Weekly Report January 31-February 4, 2022, https://bit.ly/3HvmCRO.

E.g., Marybeth Luczak, Next Stop for CBC Union, Railroad

Negotiations: Mediation (Jan. 25, 2022), https://bit.ly/3vvCXDJ;

Frank N. Wilner, Railroads, Labor Trade Contract-Change Demands (Nov. 4, 2019), https://bit.ly/3HB8M0h.

Machinists, AFL-CIO v. Cent. Airlines, Inc., 372 U.S.

682, 685 (1963). Unlike arbitration proceedings under

the FAA, proceedings under the RLA are not confidential. On the contrary, the National Railroad Adjustment Board maintains an online database identifying

all pending cases,52 as well as a search function for

closed cases that allows the public to access full party

information, case facts, findings, and awards.53

Likewise, the “boards” governing airline industry

disputes are required by statute to be court-like, adversarial, and public. IAM v. Cent. Airlines, Inc., 372

U.S. 682, 695 (1963) (when Congress created these

boards, it intended them “to be and to act as a public

agency, not as a private go-between; its awards to

have legal effect, not merely that of private advice”)

(internal quotations omitted).54 Furthermore, many

system board decisions can be found online, and hearings are typically not closed to the public.55

National Mediation Board: Caseload Report, https://bit.ly/

3Mhx2Ik.

National Mediation Board: Knowledge Store Award Search,

https://bit.ly/3HIQB96.

See also Katherine Van Wezel Stone, Labor Relations on the

Airlines: The Railway Labor Act in the Era of Deregulation, 42

Stan. L. Rev. 1485, 1547 n.97 (1990) (“It is not uncommon in a

System Board proceeding for both sides to be represented by lawyers, a court reporter to be present, a transcript to be produced,

and post-hearing briefs to be filed. In addition, many such System Board proceedings follow standard rules of evidence and

adopt a rule of stare decisis.”).

55 E.g., Transport Workers Union Local 555, Arbitration Rulings,

https://bit.ly/36iqskk; Agreement By and Between Southwest

Airlines Co. and Transport Workers Union of America AFL-CIO

Local 555 Representing Ramp, Operations, Provisioning and

B. States are better able to protect their economies and exercise their investigatory and

enforcement powers when transportationindustry disputes are resolved transparently.

The procedures associated with RLA and court proceedings are better suited to resolve transportation

disputes than arbitrations conducted pursuant to the

FAA, in large part because of their transparent and

public-facing nature. As demonstrated by the historical events discussed above, see supra Section I.A., disruptions in transportation due to unresolved disputes

between employers and employees have a significant

negative impact on States, their economies, and their

residents.

States have a clear interest in avoiding disruption,

both within their borders and in neighboring States,

since “[a] strike in one State often paralyzes transportation in an entire section of the United States, and

transportation labor disputes frequently result in simultaneous work stoppages in many States.” Bhd. of

R.R. Trainmen, 394 U.S. at 381. States also have an

interest in preparing for any possible disruptions to

their transportation infrastructure, which is made

more difficult when disputes are heard in confidential

proceedings and resolved by opaque judgments.

The private nature of arbitration proceedings under the FAA can also interfere with States’ investiga-

Freight Agents, Article 20(L)(10), https://bit.ly/34EbqFd (requiring that there be an agreeable location for hearings and that employees have access to that location).

tory and enforcement duties. Courts have long recognized that the States’ traditional police powers extend

to regulating working conditions. E.g., West Coast Hotel Co. v. Parrish, 300 U.S. 379, 397-398 (1937). Accordingly, States have not only established minimum

standards on a wide range of working conditions, but

also granted state agencies and officials the authority

to investigate and enforce violations of those standards.56 In many States, the legislature has designated

multiple agencies or officials as responsible for investigating such violations. In Illinois, for example, both

the Illinois Department of Labor and the Illinois Attorney General have the power and duty to investigate

potential violations and initiate enforcement actions

on behalf of employees and the public. E.g., 15 ILCS

205/6.3(b); 820 ILCS 115/11. Similarly, California has

vested several agencies with such authority, including

a Labor Commissioner tasked with establishing a field

enforcement unit that investigates “industries, occupations, and areas in which . . . there has been a history of violations.” Cal. Lab. Code § 90.5(a)-(c).

States utilize this authority to investigate and

bring enforcement actions against companies in the

transportation industry. In 2021, for instance, the

New York Attorney General recovered nearly

E.g., Ala. Code § 25-2-2(a); Ark. Code Ann § 11-2-108; Colo.

Rev. Stat. 8-4-111(1)-(2); Conn. Gen. Stat. § 31-3; 19 Del. Code

§§ 107, 1111; D.C. Code § 32-1306; Ga. Code Ann. § 34-2-3; Kan.

Stat. Ann. § 44-636; Ky. Rev. Stat. § 337.340; 26 Me. Rev. Stat.

§ 42; Md. Lab. Code Ann. § 3-103; Mass. Gen. Laws ch. 149, § 3;

N.H. Rev. Stat. Ann. 273:9, 275:51; N.J. Stat. § 34:1A-1.12; N.M.

Stat. Ann. § 50-4-8; N.D. Cent. Code, § 34-06-02; Ohio Rev. Code

Ann. § 4111.04(A)-(B); Or. Rev. Stat. § 651.060(1); S.D. Codified

Laws § 60-5-15; Utah Code Ann. § 34-28-10(1).

$600,000 in stolen wages from a subcontractor to

American Airlines that provided passenger services at

JFK Airport.57 The State’s investigation uncovered a

years-long practice of failing to reimburse workers for

their uniform maintenance and laundry, which resulted in illegal deductions under New York labor

laws.58 Likewise, in 2018, the Massachusetts Attorney General obtained nearly $500,000 in restitution

and penalties for 141 former employees of a medical

transportation business.59 The State opened an investigation after receiving complaints from employees

and uncovered a systemic failure to pay an appropriate overtime rate.60

To be sure, arbitration agreements under the FAA

cannot supersede this authority or prevent state investigations into potential violations. E.g., Dist. Ct.

Doc. 53-1 at 10 (recognizing that the arbitration agreement does not preclude state or federal claims). But

the confidentiality provisions that typically govern arbitration proceedings can make it more difficult for

state investigatory and enforcement bodies to become

aware of potential systemic violations in their State.

Specifically, contractual provisions that require confidentiality affect States’ ability to efficiently conduct

investigations and determine whether enforcement

Press Release, Attorney General James Recovers $590,000 for

Airline Workers Subjected to Minimum Wage Violations (July 9,

2021), https://on.ny.gov/3HvqQJ6.

Ibid.

Press Release, AG Healey Cites Transportation Company

Nearly $500,000 for Misclassification and Overtime Violations

(Sept. 24, 2018), https://bit.ly/3vzqfUA.

Ibid.

actions are warranted. As a practical matter, state

agencies are often dependent on constituent complaints, third-party information, and publicly available information when determining whether to open an

investigation into an employer. Accordingly, when

employee grievances, and any resultant awards, are

shrouded in secrecy, it is more challenging for state

agencies to assess whether the purported violations

are occurring on a widespread basis and thus would

warrant an investigation or enforcement action.

When such matters are resolved in public-facing fora,

by contrast, States are better able to track employee

claims, search public databases, and identify troubling trends in workplace conditions.

This difficulty is exacerbated by contractual terms

that incentivize proceeding exclusively through arbitration and declining to participate in state-level investigations and enforcement actions. For example,

the Southwest arbitration agreement at issue here

provides that if an employee “chooses to file a

charge/complaint with a governmental agency that

has investigatory power over some or all claims, [the

arbitration proceedings] will be stayed . . . until the

government agency resolves the charge/complaint.”

Dist. Ct. Doc. 53-1 at 11. What this means, in effect,

is that if employees seek to have their grievances

heard in a time-sensitive manner, they will likely

forego filing charges that they would otherwise be entitled to pursue at the state or federal level which, in

many circumstances, can be quite substantial. See

Hawaiian Airlines, 512 U.S. at 256 (explaining that

substantive state-law protections independent of the

collective bargaining agreement are not preempted).

These practices thus not only deprive employees of an

unhindered right to bring grievances and charges simultaneously, but also further limit the information

brought to the attention of state regulatory bodies.

For these reasons, States have an interest in maintaining the scope of the FAA exemption as it was understood at the time of its passage, which would have

included workers like respondent who load and unload cargo. Narrowing the class of workers who fall

within the exemption would not only hinder the

States’ ability to monitor disputes in the transportation industries, but also make their investigatory and

enforcement duties more difficult.

CONCLUSION

The decision below should be affirmed.

Respectfully submitted,

KWAME RAOUL

Illinois Attorney General

JANE ELINOR NOTZ*

Solicitor General

SARAH A. HUNGER

Deputy Solicitor General

LYDIA COLUNGA-MERCHANT

Deputy Chief,

Workplace Rights Bureau

R. HENRY WEAVER

Assistant Attorney General

100 West Randolph Street

Chicago, Illinois 60601

(312) 814-5376

Jane.Notz@ilag.gov

* Counsel of Record

MARCH 2022

ROB BONTA

Attorney General of California

PHILIP J. WEISER

Attorney General of Colorado

WILLIAM TONG

Attorney General of Connecticut

KATHLEEN JENNINGS

Attorney General of Delaware

KARL A. RACINE

Attorney General of the District of Columbia

AARON M. FREY

Attorney General of Maine

BRIAN E. FROSH

Attorney General of Maryland

MAURA HEALEY

Attorney General of Massachusetts

DANA NESSEL

Attorney General of Michigan

KEITH ELLISON

Attorney General of Minnesota

MATTHEW J. PLATKIN

Acting Attorney General of New Jersey

LETITIA JAMES

Attorney General of New York

ELLEN F. ROSENBLUM

Attorney General of Oregon

JOSH SHAPIRO

Attorney General of Pennsylvania

PETER F. NERONHA

Attorney General of Rhode Island

THOMAS J. DONOVAN, JR.

Attorney General of Vermont

ROBERT W. FERGUSON

Attorney General of Washington

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.